The opinion of the court was delivered by: LEVET
This is an application to stay the deportation of the relator, George Piperkoff. An order has been made to deport him from the United States upon the ground that subsequent to his entry into the United States in 1921 he was convicted of two crimes involving moral turpitude.
The statute involved is Section 241(b)(2) of the Immigration and Nationality Act, 66 Stat. 208 (8 U.S.C.A. § 1251(b)(2)), which reads:
'The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply * * * if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter.' (Emphasis added)
The predecessor of this section was originally contained in Section 19 of the 1917 Act (Ch. 29) and as amended became Section 155(a) of Title 8 U.S.C.A. The pertinent portion relating to the recommendation by the court was as follows:
'* * * Provided further, That the provision of this section respecting the deportation of aliens convicted of a crime involving moral turpitude shall not apply to one who has been pardoned, nor shall such deportation be made or directed if the court, or judge thereof, sentencing such alien for such crime shall, at the time of imposing judgment or passing sentence or within thirty days thereafter, due notice having first been given to representatives of the State, make a recommendation to the Secretary of Labor that such alien shall not be deported in pursuance of this Act; nor shall any alien convicted as aforesaid be deported until after the termination of his imprisonment * * *' The Statutes at Large of the United States of America, 64th Congress, 1915-1917, Vol. 39, Part 1, pp. 889-890. (Italics added.)
Section 241(a)(4) of the Immigration and Nationality Act, 66 Stat. 204 (8 U.S.C.A. § 1251(a)(4)) is as follows:
'Any alien in the United States (including an alien crewman) shall, upon the order of the Attorney General be deported who -- * * * is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more, or who at any time after entry is convicted of two crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefor and regardless of whether the convictions were in a single trial; * * *'
The facts are not in dispute:
(1) The relator was indicted on June 25, 1935, for burglary in the third degree and attempted grand larceny in the first degree. (See indictment No. 8332, Queens County, State of New York) Upon a confession and plea of guilty, the relator was sentenced on October 15, 1935 to a term of one year. No recommendation against deportation was made.
(2) On June 27, 1938, the relator was indicted for robbery in the first degree, grand larceny and assault by reason of acts occurring on June 20, 1938. (See indictment No. 20381, Queens County, State of New York) On November 15, 1938, the relator was held guilty of robbery, sentenced to a minimum of 40 years and a maximum of 60 years. No recommendation or notice apparently was given.
(3) On December 5, 1939, by reason of the aforesaid convictions for a crime involving moral turpitude and his having received a sentence of a year or more in each case, a warrant of deportation was issued effective upon his release from prison.
(4) On August 4, 1954, relator moved by coram nobis to vacate the 1935 conviction predicated upon lack of representation by counsel; this was granted. Then relator plead guilty to unlawful entry, a misdemeanor, and sentence was suspended, but no recommendation against deportation was made.
(5) On August 4, 1954, it was adjudged that the relator's second conviction in 1938 could not be a second felony offense under the state laws. A new sentence was imposed, indeterminate, up to 20 years, with a minimum of 10 years, with certain credits for time served, etc. On this sentence the court recommended that the relator not be deported. No notice thereof, as required, however, was given.
(6) Relator then sought reopening of the deportation proceeding for the submission of new evidence. On September 1, 1955, an order was entered providing for relator's deportation from the United States upon the ground that relator, while not subject to deportation under the Immigration Act of 1917, was, nevertheless, subject to deportation under Section 241(a)(4) of the Immigration and Nationality Act (8 U.S.C.A. § 1251(a)(4)) upon the ground that subsequent to entry he was convicted of two crimes involving moral turpitude not arising out of a single scheme of criminal misconduct: to wit, unlawful entry and robbery in the first degree. The recommendation against deportation of August 4, 1954 was held to be a nullity in that it was made without compliance with the statute, to wit, Section 241(b) of the Immigration and Nationality Act (8 U.S.C.A. § 1251(b)) and, more particularly, that it was ...