Moore, Hays and Feinberg, Circuit Judges.
Karl Friedrich Haller petitions for review of a decision of the Board of Immigration Appeals ordering his deportation as an alien who has been convicted of two crimes involving moral turpitude. Petitioner offers several reasons why the deportation order should not be enforced. We deal only with the argument that one of his convictions should not be used as a basis for deportation.*fn1 For reasons given below, we remand the matter to the immigration authorities for further proceedings.
The Immigration and Naturalization Service commenced deportation proceedings against petitioner in September 1965, alleging that he was subject to deportation under 8 U.S.C. § 1251(a) (4) for having been convicted of two crimes involving moral turpitude after entry into the United States. That statute provides as follows:
(a) Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who --
(4) * * * 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 * * *.
Petitioner falls squarely within the reach of the statute. He is an alien, a native and citizen of Germany; he last entered the United States in June 1953; and in 1962 and 1963, he was convicted of separate crimes involving moral turpitude, although the moral quality of the former is, as will be seen below, open to question. There is no such nice question concerning the 1963 conviction; it was for using and conspiring to use the mails and interstate telephone communications to defraud.*fn2 However, another part of section 1251 provides in subsection (b) (2):
(b) The provisions of subsection (a) (4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply * * (2) 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. * * *
The section thus offers the sentencing judge a chance to ameliorate the harsh sanction of deportation; the judge's use of that opportunity in this case provides the central issue on appeal.
In 1951, Haller married a permanent resident of the United States; two children were born of the union in the next few years. In 1957, upon application of his wife, Haller became a lawful permanent resident. 8 U.S.C. § 1255. However, the marriage soon became one in name only. In 1959, Haller and his wife separated; for many years the children have resided with their mother at an address unknown to petitioner, although he has contributed to their support through a third party.
Petitioner's 1962 conviction was in the County Court of the County of Westchester. The charge was "Issuing a Fraudulent Check as a Misdemeanor -- Petit Larceny."*fn3 Petitioner's brief in this court asserts that the blame in the transaction was actually his wife's, but that he pleaded guilty in order not to implicate her. Although there is nothing in the record to confirm this statement, it is clear that the county judge did not regard Haller as particularly depraved. After petitioner's guilty plea, he was sentenced to time already spent in jail, which was about ninety days, and required to make restitution of $140. More significantly, the judgment of conviction provided as follows:
It is the Court's interest in sentencing the defendant on this conviction that pursuant to Sec. 1251(b) (2) of Title 8 U.S.C.A. that the defendant shall not be deported pursuant to provision Sec. 1251 (sub. a) (4) Title 8 U.S.C.A. the Court hereby recommending to the Attorney General of the United States that this Alien defendant not be deported. Accordingly the Court will give due notice to the representative in New York, of the U.S. Immigration Service and the District Attorney of Westchester County.
Unfortunately for petitioner, there is no proof that such notice to the Service was ever given; indeed, the records indicate that it was not.*fn4 Relying upon the lack of notice, the Special Inquiry Officer and the Board of Immigration Appeals held that the judge's recommendation against deportation was ineffective. Petitioner argues to us that this rigidity on the part of the Service was wrong and uncalled for; the Service responds that the statute requires the result it reached.
We must decide whether the procedural defect necessarily deprived the judge's recommendation of all effect. We state the issue that way because there can be no question about where the equities lie. The sentencing judge, who observed petitioner and was obviously familiar with the nature of his crime, did not think that Haller's conduct merited deportation. Moreover, the court assumed the responsibility of giving notice to the immigration authorities; thus, petitioner cannot fairly be charged with that default. And finally, deportation itself is a drastic measure; as Learned Hand once put it, deportation is to many "exile, a dreadful punishment, abandoned by the common consent of all civilized peoples." United States ex rel. Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926). But that observation was made in a case in which Judge Hand also concluded that the sentencing court was powerless to grant the relief requested; i.e., to make a "nunc pro tunc" amendment ...