Matter of Malone

• Decision Date: 15 July 1966
• Docket Number: A-12044077,Interim Decision Number 1621
• Citation: 11 I&N Dec. 730
• Parties: MATTER OF MALONE In Deportation Proceedings
• Court: U.S. DOJ Board of Immigration Appeals

11 I&N Dec. 730

MATTER OF MALONE

In Deportation Proceedings

Interim Decision Number 1621

A-12044077

Board of Immigration Appeals

Decided by Board July 15, 1966

Collateral attack on an order of deportation executed in 1953 is warranted when that order resulted in a gross miscarriage of justice because, upon the basis of the then existing judicial and administrative decisions, the finding of deportability was not in accord with the law as interpreted at that time.

CHARGE:

Order: Act of 1952—Section 241 (a) (1) [8 U.S.C. 1251(a) (1)]—Excludable at time of entry—Section 212(a)(17) [8 U.S.C. 1182(a) (17)] and section 242(f) [8 U.S.C. 1252(f)] —Entry after deportation as prostitute.

The special inquiry officer certified his order terminating proceedings.

In issue is the propriety of respondent's deportation in 1953 and the effect of subsequent reentries without permission to reapply.

The facts have been fully stated in previous orders. Briefly, respondent, a divorced female, a native and citizen of Canada, was admitted to the United States in 1925 for permanent residence with her parents and other members of her family. On December 7, 1953 she was deported to Canada on the charge that she had engaged in prostitution after entry (section 241(a) (12) of the Act, 8 U.S.C. 1251 (a) (12)) (administrative appeal was filed, but later withdrawn). At that deportation hearing, the respondent consistently denied that she had ever committed an act of prostitution. The evidence presented to sustain the charge was a record of conviction on a plea of guilty to a charge of soliciting and offering to commit prostitution in New Orleans in 1953. There was no independent evidence to support the record of conviction. Respondent explained the conviction as arising out of an incident in which an individual forced himself upon her and when the police came upon the scene accused her of offering to commit prostitution.

Respondent never obtained the consent of the Attorney General to her applying for admission after deportation (section 212(a) (17) of the Act, 8 U.S.C. 1182(a) (17)). However, she reentered the United States in 1958 or 1959. On April 21, 1964 she was deported for having reentered without the Attorney General's consent to apply. She again entered the United States on November 24, 1964. In March 1966 the Service started the instant proceedings under section 242(f) of the Act (8 U.S.C. 1252(f)) to deport respondent on the basis of the 1953 order of deportation, and because of the fact she had entered without the Attorney General's consent. The special inquiry officer ruled that the 1953 deportation was a gross miscarriage of justice, that it must be considered a nullity, and that it therefore could not serve as a basis for deporting the respondent. The special inquiry officer ruled as he did because of his belief that the charge should not have been sustained at the original hearing for at that time proof of even one act of prostitution would not have required a finding of deportability (U.S. ex rel. Mittler v. Curran, 8 F.2d 355, 2d Cir., 1925; see Mirabal-Balon v. Esperdy, 188 F. Supp. 317, S.D.N.Y., 1960; Matter of T----, 6 I. & N. Dec. 474) and at that time the Service had not even presented proof of one act of prostitution: the controverted proof merely showed an offer to commit prostitution.

We concur in the special inquiry officer's well-reasoned conclusion. Respondent's deportation in 1953 on the...