Francisco Guandique Marin v. Immigration and Naturalization Service

Ninth Circuit

Francisco Guandique Marin v. Immigration and Naturalization Service

438 F.2d 932, 1971 U.S. App. LEXIS 11702

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 24, 1971

Docket25625_1

StatusPublished

Cited by10 cases

This text of 438 F.2d 932 (Francisco Guandique Marin v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Francisco Guandique Marin v. Immigration and Naturalization Service, 438 F.2d 932, 1971 U.S. App. LEXIS 11702 (9th Cir. 1971).

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Opinion

PER CURIAM:

Section 241(a) (4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) *933 (4), provides that “Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * at any time after entry is convicted of two crimes involving moral turpitude * * The Board of Immigration Appeals ordered petitioner deported pursuant to this provision.

Petitioner contends that he is not de-portable because neither he, his counsel at the time of his convictions, nor the trial judges were aware of section 241 (b) (2) of the Act, 8 U.S.C. § 1251(b) (2), which provides that deportation shall not take place “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 * * * that such alien not be deported.”

It has been repeatedly held, however, that a recommendation- after expiration of the statutory period is ineffective to prevent deportation. United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (2d Cir. 1959); United States ex rel. Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926); Ex Parte Eng, 77 F.Supp. 74 (N.D.Cal.1948); United States v. Espo-sito, 67 F.Supp. 770 (E.D.N.Y.1946); United States ex rel. Arcara v. Flynn, 11 F.2d 899 (W.D.N.Y.1926); see Haller v. Esperdy, 397 F.2d 211, 213 (2d Cir. 1968). Petitioner can be in no better position where, as here, no recommendation was ever made. Todaro v. Munster, 62 F.2d 963, 964 (10th Cir. 1933).

Petitioner presents an ingenious argument based upon Costello v. Immigration & Naturalization Service, 376 U.S. 120, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964), and Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958). Those cases, however, dealt with a different problem. In both, section 241 (b) (2) was held to condition the meaning of section 241(a) (4). Here, the question is what section 241(b) (2) itself means. To hold for petitioner would require us to conclude that Congress intended the statutory period to be immaterial so long as the parties were unaware of the statute. Petitioner has pointed to nothing in the legislative history reflecting such a highly unlikely intention.

Affirmed.

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PER CURIAM:

Section 241(a) (4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a) *933 (4), provides that “Any alien in the United States * * * shall, upon the order of the Attorney General, be deported who * * * at any time after entry is convicted of two crimes involving moral turpitude * * The Board of Immigration Appeals ordered petitioner deported pursuant to this provision.

Petitioner contends that he is not de-portable because neither he, his counsel at the time of his convictions, nor the trial judges were aware of section 241 (b) (2) of the Act, 8 U.S.C. § 1251(b) (2), which provides that deportation shall not take place “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 * * * that such alien not be deported.”

It has been repeatedly held, however, that a recommendation- after expiration of the statutory period is ineffective to prevent deportation. United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (2d Cir. 1959); United States ex rel. Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926); Ex Parte Eng, 77 F.Supp. 74 (N.D.Cal.1948); United States v. Espo-sito, 67 F.Supp. 770 (E.D.N.Y.1946); United States ex rel. Arcara v. Flynn, 11 F.2d 899 (W.D.N.Y.1926); see Haller v. Esperdy, 397 F.2d 211, 213 (2d Cir. 1968). Petitioner can be in no better position where, as here, no recommendation was ever made. Todaro v. Munster, 62 F.2d 963, 964 (10th Cir. 1933).

Petitioner presents an ingenious argument based upon Costello v. Immigration & Naturalization Service, 376 U.S. 120, 84 S.Ct. 580, 11 L.Ed.2d 559 (1964), and Gubbels v. Hoy, 261 F.2d 952 (9th Cir. 1958). Those cases, however, dealt with a different problem. In both, section 241 (b) (2) was held to condition the meaning of section 241(a) (4). Here, the question is what section 241(b) (2) itself means. To hold for petitioner would require us to conclude that Congress intended the statutory period to be immaterial so long as the parties were unaware of the statute. Petitioner has pointed to nothing in the legislative history reflecting such a highly unlikely intention.

Affirmed.

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438 F.2d 932, 1971 U.S. App. LEXIS 11702, Counsel Stack Legal Research, https://law.counselstack.com/opinion/francisco-guandique-marin-v-immigration-and-naturalization-service-ca9-1971.

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