A-8388231
Decided by Board June 11, 1956
Recommendation against deportation — Section 241 (b), Immigration and Nationality Act — Must be made within 30 days of first imposing judgment or passing sentence.
(1) A recommendation against deportation pursuant to section 241 (b) of the Immigration and Nationality Act must be made by the court within 30 days after first imposing judgment or passing sentence.
(2) Where the court, having previously sentenced the alien on January 26, 1955, revoked such sentence on February 24, 1955, then imposing a lesser term of imprisonment, and on March 23, 1955, notified the Service of its intention to recommend against deportation, the recommendation was not timely made.
CHARGE:
Warrant: Act of 1952 — Section 241 (a) (4) — Crime within five years (grand larceny, first degree).
BEFORE THE BOARD
Discussion: This is an appeal from the order of the special inquiry officer requiring respondent's deportation on the ground stated above. The facts have been fully stated by the special inquiry officer. Briefly, the respondent, a 35-year-old married male, a native of Belgium, now allegedly stateless, was admitted to the United States for permanent residence in 1952. On November 1, 1954, in the Court of General Sessions for the City of New York, he entered a plea of guilty to the crime of grand larceny in the first degree, and on January 26, 1955, was sentenced to a term of imprisonment of not less than five years. Commitment was held in abeyance. On February 24, 1955, the sentence previously imposed was revoked and the respondent was given a new sentence, this time to a minimum of 3 years, 6 months. On or about March 23, 1955, proper notice was given to the Service and the District Attorney's office of the court's intention to recommend against deportation. On March 25, 1955, the court entered an order recommending that respondent be not deported by reason of the conviction of February 24, 1955.
The issue is whether the recommendation of the court was timely. Counsel argues that the sentence imposed on January 26, 1955, should be disregarded since it was eliminated when it was annulled, and that the recommendation was made after the first sentence which now results in the respondent's incarceration.
We agree with the special inquiry officer that section 241 (b) of the Immigration and Nationality Act requires that the recommendation against deportation be made within 30 days of first imposing judgment, and that since judgment was first imposed on January 26, 1955, and recommendation was not made within 30 days from that date, the recommendation was not effective. We believe we are bound by the language of the section which requires that recommendation be made "at the time of first imposing judgment or passing sentence, or within thirty days thereafter" (See Matter of M---- G----, E-069541, 5 IN Dec. 531).
Order: It is ordered that the appeal be and the same is hereby dismissed.