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they are unmarried. In Corniel-Rodriguez v. INS, 532 F. 2d 301 (2d Cir. 1976), where the U.S. Consul in Santo Domingo issued a special immigrant visa to the child of a special immigrant but failed, in violation of 8 C.F.R. 42.122(d), to warn her that her visa would become invalid if she married before entering the United States, the court held that she was not deportable for having wed a Dominican only three days before entering the United States. In Chan v. Bell, 464 F. Supp. 125 (D.D.C. 1978), where the marriage of a U.S. citizen petitioner to an alien spouse was lawful at its inception and lawful at the time the immediate relative visa petition was filed, the court held the marriage valid for visa purposes. The court, noting that the parties were living apart but that no divorce or separation proceeding had been instituted, held that the INS had no authority to invalidate such a marriage by terming it "not viable.” The INS now accepts this decision as a rule of general applicability.

SECTION 235. INSPECTION BY IMMIGRATION OFFICERS

1. Delayed inspection

In Klapholz v. Esperdy, 201 F. Supp. 294 (S.D. N.Y. 1961), aff'd per curiam, 302 F. 2d 928, cert. denied, 371 U.S. 891 (1962), the court upheld the exclusion of a returning resident alien who was paroled upon his return to uwait disposition of criminal charges against him and who later was exluded on the basis of his conviction for such charges. 2. Subpoenas

Section 235(a) contains broad authority, which does not appear elsewhere in the Act, for the issuance of subpoenas "relating to the privilege of any person to enter, reenter, reside in, or pass through the United States or concerning any matter which is material and relevant to the enforcement of this Act.” Although this language appears in a section dealing with entry procedures, it apparently was intended to encompass ali immigration procedures, including expulsion cases, United States v. Vivian, 224 F.2d 53 (7th Cir. 1955), cert. denied, 350 U.S. 953 (1956). Cf. Mew v. Jones, 268 F. 2d 376 (9th Cir. 1959), which doubts such extensive authority. See also United States v. Minker, 350 U.S. 179 (1956). Although the statute refers to the subpoena of witnesses, it has been deemed to authorize the subpoena of an alien who is a prospective respondent in deportation procedeings. Sherman v. Hamilton, 295 F. 2d 516 (1st Cir. 1961), cert. denied, 369 U.S. 820 (1962). The Supreme Court has ruled that the statute does not authorize the subpoena of a naturalized citizen for the purpose of determining whether good cause exists for bringing revocation proceedings against him. United States v. Minker, 350 U.S. 179 (1956). However, this does not preclude the subpoena of a citizen as a witness in an immigration proceeding brought against another person. United States v. Zuskar, 237 F. 2d 528 (7th Cir. 1956), cert. denied, 352 U.S. 1004 (1957).

SECTION 236. EXCLUSION PROCEEDINGS

1. Effect of prior determinations

This question most frequently concerns prior determinations of citizenship. To avoid duplication, it is considered in connection with expulsion hearings under section 242.

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2. Blood test evidence

Various issues have arisen in connection with the use of blood grouping tests in testing alleged relationship to a U.S. citizen. The use of the tests has been sustained if they were conducted without discrimination by qualified technicians under adequate safeguards and if the applicant was given opportunity to cross-examine the techincians and to rebut their findings. Hoy v. Murff, 355 U.S. 169 (1957); Ott v. Shaughnessy, 220 F. 2d 537 (2d Cir. 1955); Hoy v. Shaughnessy, 115 F. Supp. 302 (S.D. N. Y. 1953). They must also have been voluntary, Cheung v. Rogers, 272 F. 2d 354 (9th Cir. 1959). 3. Finality of decisions

A valid exclusion order based upon a final judgement, in which direct appeals have been exhausted or waived, cannot be disturbed by a post-conviction attack upon that judgement, even where that attack results in expungement. Furthermore, a post-conviction attack upon an exclusion order will not be permitted unless there is shown a gross miscarriage of justice at the prior proceedings. HernandezAlmanza v. INŠ, 547 Ě. 2d 100 (9th Cir. 1976).

SECTION 237. DEPORTATION OF EXCLUDED ALIENS

1. Place of deportation

The statute requires that an excluded alien be sent to the country whence he came. One case held that this norr ally means the country in which he lived before coming here and that an alien could not be sent to his native country which he had left as a refugee thirteen years earlier. Milanovic v. Murff, 253 F. 2d 941 (2d Cir. 1958). Where å longtime resident alien of the United States was excluded upon his return from a temporary absence, the court refused to sanction the execution of his exclusion order to any other country since no country other than the United States fit the description of country whence he came." Stacher v. Rosenberg, 216 F. Supp. 511 (S.D. Cal. 1963).

It has been held that the exclusion statute, unlike the expulsion statute, does not require advance consent of the country of destination. Therefore the court approved a procedure to deport an excluded alien to The People's Republic of China through Hong Kong upon the Government's assurance that it would bring him back to this counrry if The People's Republic did not accept him. Shung v. Murff, 176 F. Supp. 253 (S.D. N.Y. 1959), aff'd per curiam, 274F. 2d 667 (1960). 2. Persecution claims

In the absence of a statutory provision for the consideration of a claim that an excluded alien would be subject to persecution, the Supreme Court upheld the refusal to consider such claims submitted by aliens who were admitted on parole, even though the execution of the exclusion order was delayed considerably by challenges to its validity. Ma v. Barber, 357 U.Š. 185 (1958); Rogers v. Quan, 357 U.S. 193 (1958).

One court has held that an alien crewman granted shore leave is not in the same position as a parollee. Having been admitted to the United States, such person is subject to deportation rather than exclusion proceedings and thus can take advantage of section 243(b). Szaljmer v. Esperdy, 188 F. Supp. 491 (S.D. N. Y. 1960). However, this holding

has been disputed by other courts, which have held that an alien crewman whose conditional landing permit had been revoked was not entitled to a deportation hearing and thus could not take advantage of section 243(h). Luk v. Rosenberg, 409 F. 2d 555, (9th Cir. 1969); Klordic v. Esperdy, 386 F.2d 232 (2d Cir. 1967), cert. denied, 392 U.S. 935 (1968); Glavic v. Beechie, 225 F. Supp. 24 (S.D. Tex. 1963), aff'd, 340 F. 2d 91 (5th Cir. 1964). This conflict was resolved in INS v. Stanisic, 395 U.S. 62 (1968), rehearing denied, 395 U.S. 987 (1968), in which the Supreme Court held that although an alien crewman is not entitled to a deportation hearing before a special inquiry officer, his request for asylum may nevertheless be heard by a district director pursuant to 8 C.F.R. 253.1(f). The Court stressed that this regulation applies to any alien crewman whose conditional landing permit has been revoked pursuant to section 252(b), regardless of whether his vessel is still in port or has already departed.

It should be noted that under The Refugee Act of 1980, Pub. L. No. 96-212, Sec. 208(a), 94 Stat. 107 (1980), a new statutory provision has been established whereby any alien physically present in the United States or at a land border or port of entry, "irrespective of such alien's status”, may apply for asylum on the basis of a well founded fear of persecution (as defined in section 201(a) of that Act). However, no cases arising under this new provision are digested here.

SECTION 241. GROUNDS FOR DEPORTATION

1. Interpretation of deportation statutes

The Supreme Court has repeatedly emphasized the severe consequences of expulsion and the necessity that deportation statutes be narrowly construed. INS v. Errico, 385 U.S. 214 (1966); Costello V. INS, 376 U.S. 120 (1964); Rosenberg v. Fleuti, 374 U.S. 449 (1963); Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963); Bonetti v. Rogers, 356 U.S. 691 (1958); Barber v. Gonzales, 347 U.S. 637 (1954). 2. Constitutionality

There have been numerous challenges to the constitutionality of various aspects of the deportation statute. In Galvan v. Press, 347 U.S. 522 (1954), the Supreme Court upheld the provisions for deportation of former members of the Communist Party. A frequent contention has been that retroactive provisions of the deportation statute violate the ex post facto clause of the Constitution. This contention was rejected in Galvan v. Press, supra, and in Mulcahey v. Catalanotte, 353 U.S. 692 (1957); Lehmann v. Carson, 353 U.S. 685 (1957); Marcello v. Bonds, 349 U.S. 302 (1955). The courts have also rejected contentions that deportation orders inflict cruel and unusual punishment. Chabolla-Delgado v. INS, 384 F. 2d 360 (9th Cir. 1967); De Lucia v. INS, 370 F. 2d 305 (7th Cir. 1966), cert. denied, 386 U.S. 912 (1967); Burr v. INS, 350 F. 2d 87 (9th Cir. 1965), cert. denied, 383 U.S. 915 (1966).

As noted under section 212, the exclusion of sexual deviates or persons afflicted with psychopathic personalities was found not to rest on an unconstitutionally vague statute in Boutilier v. INS, 387 U.S. 118 (1967).

A deportation order was approved based on a retrospective construction of a 1960 amendment making excludable and deportable an prevent automatic deportation, and full expungement of a federal conviction would have been available in an analogous case, the alien was not "convicted” and thus not subject to the mandatory deportation under section 241(a)(11). Rehman v. INS, 544 F.2d 71 (2d Cir. 1976). The expungement of a conviction by writ of coram nobis also may remove it from consideration for deportation purposes. See Wood v. Hoy, 266 F. 2d 825 (9th Cir. 1959); United States v. Marcello, 210 F. Supp. 892 (E.D. La. 1962). In any event, the question whether a conviction is final for deportation purposes is a federal, rather than a state, question. Gutierrez v. INS, 323 F. 2d 593 (9th Cir. 1963); Arrellano-Flores v. Hoy, 262 F. 2d 667 (9th Cir. 1958). Lastly, conviction by a court-martial or military court has been deemed insufficient to incur deportability. Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958).

b. Two or more convictions.—Conviction, at any time after entry, of two or more crimes involving moral turpitude, which do not arise "out of a single scheme of criminal misconduct" constitutes a ground for deportation. The "single scheme" restriction has resulted in considerable litigation. Some courts have read this language quite restrictively, holding a single scheme present in different acts of bribery, larceny, and fraud in obtaining money from a city over a two-year period (Jeronimo v. Murf, 157 F. Supp. 808 (S.D. N.Y. 1957); tax fraud for liquor violations on different dates (Zito v. Moutal, 174 F. Supp. 531 (N.D. Ill. 1959)); two similar crimes involving thefts of automobiles committed within one day of each other (Sawkow v. INS, 314 F. 2d 34 (3d Cir. 1963)), and two robberies by the same group three days apart (Wood v. Hoy, 266 F. 2d 825 (9th Cir. 1959)). Other courts have been more expansive in their reading and have found no single scheme present in convictions for tax evasion for separate years (Costello v. INS, 311 F. 2d 343 (2d Cir. 1962), reversed on other grounds, 376 U.S. 120 (1964)); (Khan v. Barber, 253 F. 2d 547 (9th Cir. 1958), cert. denied, 357 U.S. 920 (1958); and separate charges of lewdness and indecent assault (Fitzgerald v. Landon, 238 F. 2d 864 (1st Cir. 1956)). Likewise, in Pacheco v. INS, 546 F. 2d 448 (1st Cir. 1976), cert. denied, 430 U.S. 985 (1977), the court declined to find a single scheme so as to preclude deportation of an alien who was convicted of two break-ins, separated by a two day interval and connected only by a prolonged period of drunkenness.

Unless the facts and circumstances clearly indicate otherwise, the burden is on the Government to show that the crimes did not arise out of a single scheme of misconduct. Sawkow v. INS, 314 F. 2d 34 (3d Cir. 1963); Cf. Costello v. INS, supra.

c. Sentence. -Where conviction is for a single crime within five years after entry, the statute requires that the conviction must be followed by a sentence of a year or more in a prison or corrective institution. If the sentence is indeterminate, its possible maximum is controlling for the purpose (Dentico v. Esperdy, 280 F. 2d 71 (2d Cir. 1960)), even though an alien's actual release occurs before a year's confinement (Petsche v. Clingan, 273 F. 2d 688 (10th Cir. 1960)). A suspended sentence has been found effective for deportation purposes. Burr v. Edgar, 292 F. 2d 593 (9th Cir. 1961).

It has been held that state law must be consulted to determine the purpose of the confinement and when the aim of the confinement is

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treatment rather than punishment, there is no sentence for deportation purposes. Holzapfel v. Wyrsch, 259 F. 2d 890 (3d Cir. 1958).

d. Scope and definition of moral turpitude.-— The courts have repeatedly held that any larceny, whether grand or petty, involves moral turpitude, Wyngaard v. Kennedy, 295 F. 2d 184 (D.C. Cir. 1961), cert. denied, 368 U.S. 926 (1961); Orlando v. Robinson, 262 F. 2d 850 (7th Cir. 1959), cert. denied, 359 U.S. 980 (1959); Qinlodran-Brau v. Holland, 232 F. 2d 183 (3d Cir. 1956).

e. Pardon or judicial recommendation against deportation (241(b)):-Since a pardon must be "full and unconditional,” a conditional pardon is not effective to prevent deportation. Lehmann v. Carson, 353 U.S. 685 (1957). A pardon cannot be vitiated or ignored on a claim that it was fraudulently obtained in the absence of action by the granting authority to revoke it. Taran v. United States, 266 F. 2d 561 (8th Cir. 1959).

In order to forestall deportation, a judicial recommendation must be made "at the time of first imposing judgment or passing sentence or within thirty days thereafter.” There is a division of authority as to whether an omission to make a timely recommendation can be corrected by a corum nobis revocation of the conviction, followed by reimposition of the same sentence, with a recommendation against deportation. Favoring the affirmative is Sawkow v. INS, 314 F. 2d 34 (3d Cir. 1963), which found that state law was determinative as to whether a valid conviction had occurred initially. Opposed is Piperkoff v. Esperdy, 267 F.2d 72 (2d Cir. 1959), which found that the statutory specification of the time of "first” imposing sentence outlawed such procedure for deportation purposes. Moreover, the time limitation on making a recommendation against deportation cannot be avoided by contending that the alien, his attorney, and the sentencing judge did not know that the alien could have made application on the sentencing court for a recommendation against deportation pursuant to section 241(b)(2) of the Immigration and Nationality Act. Marin v. INS, 438 F. 2d 932 (9th Cir. 1971). cert. denied, 304 U.S. 923 (1971). Yet, in Cerujo v. INS, 570 F. 2d 1323 (7th Cir. 1978), the court held that the alien should not be penalized because INS had not been given prehearing notice of the state judge's recommendation against deportation; there was no evidence that the alien's role in failure to give notice was intentional, and the judge was available and willing to consider the nondeportation recommendation.

Another aspect of the provisions for pardon or judicial recommendation is that they are limited to convictions for crimes involving moral turpitude and do not ameliorate deportability for other offenses mentioned in the statute, e.g., bringing in aliens in violation of the law. Ten v. INS, 307 F. 2d 832 (9th Cir. 1962), cert. denied, 371 U.S. 968 (1963). Rehman v. INS, 544 F.2d 71 (2d Cir. 1976), held otherwise. One court has ruled that a trial judge's recommendation against deportation of an alien convicted of fraud prevents discretionary consideration of the conviction in adjustment of status proceedings as well. Giambanco v. INS, 531 F. 2d 141 (3d Cir. 1976). 6. Violators of registration and reporting requirement (241(a)(5))

This provision for deportation is new in the 1952 Act, and its constitutionality has been upheld. Czapkowski v. Holland, 220 F. 2d 436 (3d Cir. 1955), cert. denied, 350 U.S. 826 (1955). An alien who

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