As relevant here, the plea form contained a standard immigration advisal (paragraph 14). O'Connor modified paragraph 14 by crossing out the word "or" and handwriting the word "and" in its place and crossing out the word "may" and handwriting the word "will" in its place. The modified paragraph 14 read, "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or and denial of <mask> may will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest)." In addition to Novoa signing the change of plea form, O'Connor signed it as well. In doing so, O'Connor acknowledged that he was Novoa's attorney, he personally read and explained the contents of the change of plea form to Novoa, he observed Novoa sign the form, and he concurred with Novoa's guilty plea.


In Open court, counsel for the petitioner protested the omission of the name of Matthias Reilly. After presenting a brief but impassioned version of the facts and circumstances, he moved that the petitioner’s petition “ be restored to Your Honor’s calendar forthwith.” In opposition, Marvin Stang, Esq., the agency’s Examiner, advised the court that the “ case had not been closed ” and “ since Mr. Reilly is not here at the present time that his application be adjourned without date.” I reserved decision on the petitioner’s motion and the <mask> Service’s cross motion.


There is no dispute here that the crime to which Hernandez pleaded guilty, possession of methamphetamine in violation of section 11378, subjected her to mandatory deportation. Currier was therefore obligated under Padilla to advise her, before she pleaded guilty, of that specific consequence. Hernandez stated in her declarations that Currier did not so advise her. True, Hernandez initialed the paragraph on the Tahl form stating she understood that if she were not a citizen, her *907"conviction for the offense charged will have the consequence of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States." (Italics added.) The Tahl form, however, did not advise that her specific plea would result in mandatory deportation. Although the Tahl form contains the word "will" and not "may," it, standing alone, is akin to the "generic advisement" required of the court under Penal Code section 1016.5, subdivision (a) addressed in Patterson, supra, 2 Cal.5th at page 898, 216 Cal.Rptr.3d 95, 391 P.3d 1169, and it similarly "is not designed, nor does it operate, as a substitute for such advice" of defense counsel regarding the applicable immigration consequences in a given case. ( Ibid. )


The government moved for summary judgment, arguing that Jaffal “ha[d] no evidence to prove two essential elements of his claim: 1) Plaintiff cannot establish that a legal separation had occurred at the time of his father’s <mask>; and 2) Plaintiff cannot establish that his father had legal custody of him at the time of his father’s naturalization.” 28 The Court agreed, reaching only the first issue, legal separation. It ruled that the Jordanian Divorce “on which Plaintiff relies to meet the legal separation requirement is not entitled to recognition under Third Circuit law.” 29 It found that under Perrin v. Perrin, 30 our precedent requires that the divorce or separation


He contends that he had little knowledge of English and that he thought he had to be placed in jail in order to be arrested. The court does not believe there is any merit to these contentions. The evidence discloses that when the Government objected to his first application for <mask>, he withdrew the same because, in part, at least, he failed to state that he had been arrested for nonsupport. In this, his second applica*1093tion, he admitted his arrest on the aforesaid nonsupport charge hut denied any other arrest; the Government on subsequent investigation ascertained an arrest for assault second and disorderly conduct. With the forewarning of the Government’s objection to his first application, the petitioner certainly was on notice and was aware of the meaning of the word 11 arrest.” Furthermore, section 312 of the Immigration and Nationality Act (U. S. Code, tit. 8, § 1423, subd. [1]) requires “ an understanding of the English language, including an ability to read, write and speak words in ordinary useage in the English language”. This court believes that the word “ arrest ” is one used in ordinary conversation. An applicant who is unable or claims to be unable to understand its meaning fails to meet the requirements of the law. (Matter of Vasicek, 271 F. 326 ; Matter of Scriver, 9 F. Supp. 478.)


The petition for <mask> was filed on May 4, 1961. At a hearing held in December of 1962 upon the petition, it was established from petitioner’s testimony and from the record of her hospitalization in 1958 at a mental institution that petitioner had engaged in homosexual activities in her native Denmark with a girl friend of her age and that this relationship continued for about six years, terminating in 1947, one year prior to petitioner’s emigration to the United States. It was further established that she resumed her homosexual activities in 1950 and that they continued to the hearing date, the activities having been had with two women. During this time petitioner was married and divorced, the marriage act never having been consummated.


even more so than a <mask> proceeding, a Panel proceeding—on which would turn the government’s assumption of control of significant amounts of private property—would present sufficient inherent adverse- ness between the legal interests of the government and a private party to satisfy Article III, even if the private party does not appear to protect its interests. But we are not confident that we understand sufficiently the economic circumstances that would give rise to a petition, or the manner in which the compressed time frame for Panel consideration of a petition would unfold in practice, to deem such an argument persuasive. Whatever the answer in the case of a company that simply failed to appear before the Panel, a proceeding concerning a financial company that had affirmatively consented to its placement in FDIC receivership would seem to lack the adverseness necessary to support the jurisdiction of an Article III tribunal. Such a company would not have interests that are “present[ly] or possibl[y] adverse” to those of the government. Musk- rat, 219 U.S. at 357. Accordingly, a Panel proceeding concerning such a consenting company likely would not present “the honest and actual antagonistic assertion of rights” necessary to “safeguard . . . the integrity of the judicial process.” United States v. Johnson, 319 U.S. 302, 305 (1943) (internal quotation marks omitted). Indeed, Panel consideration of a petition concerning such a company would seem to raise the same sorts of concerns as an advisory opinion, requiring “legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument.” United States v. Fruehauf, 365 U.S. 146, 157 (1961). There- fore, we are concerned that a Panel proceeding concerning a consenting company would not qualify as a justiciable “case or controversy.” See, e.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 47–48 (1971) (case dismissed based on lack of case or controversy where both sides argued that an anti-busing law was constitutional, thus “con- front[ing]” the Court “with the anomaly that both litigants desire precise- ly the same result”); Brown v. Watkins Motor Lines, Inc., 596 F.2d 129 (5th Cir. 1979) (court lacked jurisdiction to reduce attorney’s fee to which plaintiff’s attorney and victorious plaintiff had agreed where no party was challenging the fee). And although the Court held in Pope that a contractor’s statutorily authorized suit was justiciable even though the


The respondent stands convicted of filing a false application with the Department of Immigration and <mask> Service, in violation of 8 USC § 1255a (c) (6) which provides as follows: "Whoever files an application for adjustment of status under this section and knowingly and willfully falsifies, misrepresents, conceals, or covers up a material fact or makes any false, fictitious, or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined in accordance with title 18 * * * or imprisoned not more than five years, or both.”


Looking first at Jamaica, we found that “[a]t the time of the petitioner’s mother’s <mask> in 1984, Jamaica recognized a right to a judicial separation which Jamaican law distinguished from absolute divorce.” 52 We concluded “[t]here [wa]s no evidence that any Jamaican court ever issued a decree of judicial separation to the petitioner’s parents,” 53 nor had any Jamaican court issued an absolute divorce. Having failed to find evidence of a legal separation under Jamaican law, we then looked to Pennsylvania law but found that no separation had occurred under Pennsylvania law either. We therefore concluded that Morgan’s parents had not been legally separated under the statute. We held that legal separation under § 1432(a) occurs “upon a formal governmental action, such as a decree issued by a court of competent jurisdiction that, under the laws of a state or nation having jurisdiction over the marriage, alters the marital relationship of the parties.” 54 We clarified, however, that “[t]he formal action need not necessarily be a judicial


Effective in 1977, the Legislature required courts to provide additional protections for noncitizen defendants: "Prior to acceptance of a plea of guilty ... to any offense punishable as a crime under state law ... the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States." (§ 1016.5, subd. (a).)


The court denied the motion. In doing so, the court stated that it found Guerrero's testimony "more than credible." The court determined that Guerrero informed Gonzalez on at least two occasions, once in a group setting and another individually, that he would be deported. The court also noted that the change of plea form expressed that a plea of guilty would " 'result in removal, deportation or exclusion from admission to this country, and a denial of <mask>.' " The court found Gonzalez understood that if he pled guilty, then he would be deported. In addition, the court determined that count 2, which the prosecution dismissed under the plea agreement, carried a four-year sentence and was a factor defense counsel would have considered in negotiating a plea agreement.


Respondent states that its purposes are fourfold — first to defend itself. By this is meant that respondent has been under attack as a subversive organization and some of its energies are necessarily devoted to resisting that attack. This is really not a purpose, though it doubtless consumes time of its executives. Its second purpose is declared to be informational — it publishes various periodicals which call attention to the immigration laws, to various situations arising in connection with deportation and de<mask> proceedings and a service for lawyers interested in such proceedings calling attention to recent decisions in this field. It also provides for lectures on this subject. Its third field is described as legislative which is agitating for repeal of laws on these subjects to which it objects. Lastly, what it describes as concern with the administration and application of existing laws. This consists of supplying counsel to people threatened with proceedings of this nature if they ask for counsel; assisting’ their counsel if they are attorneys not supplied by the respondent and will accept such assistance; and, seeking moral support for the respondents in these proceedings through publicity. Of 350 deportation cases in which respondent interested itself it supplied counsel in 47. It also maintains a bureau where people in the difficulties referred to can seek advice. The aid described is given to all who apply but the overwhelming majority of those who do apply are people whose stay here is endangered because of communist affiliations. The respondent does seek to be selective in the sense that it gives the greatest attention and aid to proceedings which it believes to be test cases.


"Preparation," as relevant here, means "the study of the facts of a case and the applicable laws, coupled with the giving of advice and auxiliary activities, including the incidental preparation of papers ...." ( 8 C.F.R. § 1.2 (2018).) However, preparation does not include "service consisting solely of assistance in the completion of blank spaces on printed DHS forms, by one whose remuneration, if any, is nominal and who does not hold himself or herself out as qualified in legal matters or in immigration and <mask> procedure." (Ibid .)


The Osborne case was an action brought to restrain the officers of the State of Ohio from collecting from the bank a tax, imposed on one of its branches for doing business in that State without being allowed to do so by the laws thereof, and of course it involved the construction of the law chartering the United States Bank, and was based on the law itself. It may be, as is said in that case, that all contracts made with an institution so chartered would be cases arising under a law of the United States, and still it would not follow that, where the only operation of the law was to provide for the transfer of certain causes of action already existing, those causes of action, when sought to be enforced by the assignee, would all be cases arising under such law. As well might all actions of ejectment, in which the source of title was an United States land patent, be cases arising under an United States law. As well might all real-estate actions brought by a foreign-born citizen, after <mask>, be such cases. Suppose the assignee of a bankrupt should assign a mortgage, or any chose of action, that had been previously owned by the bankrupt and came into the hands of- the assignee as assets, would it follow that the suit on such assigned claim must be brought in the United States courts ?


The record contains the general admonishments given to Appellant during the plea proceedings, which include the following: "[I]f you are not a citizen of the United States of America, a plea of guilty or nolo contendere for the offense with which you are charged in this case may result in your deportation, or your exclusion from admission to this country, or your denial of <mask> under Federal law." Appellant initialed the admonishment, indicating that he understood it.


Defendant also stresses that Social Services Law § 122, as part of New York’s Welfare Reform Act of August 4, 1997, was enacted pursuant to and in furtherance of the policies articulated in the PRWORA. Defendant points to the preamble to the PRWORA, which provides, in part, as follows: “With respect to the State authority to make determinations concerning the eligibility of qualified aliens for public benefits * * * a State that chooses to follow the Federal classification in determining the eligibility of such aliens for public assistance shall be considered to have chosen the least restrictive means available for achieving the compelling governmental interest of assuring that aliens be self-reliant in accordance with national immigration policy.” (8 USC § 1601 [7].) However, this pronouncement from Congress does not serve to save the statute from a constitutional challenge. The Supreme Court in Graham (403 US 365, 382, supra) held that “[a]lthough the Federal Government admittedly has broad constitutional power to determine what aliens shall be admitted to the United States, the period they may remain, and the terms and conditions of their <mask>, Congress does not have the power to authorize the individual States to violate the Equal Protection Clause.” (Emphasis supplied.)


In the case of Wm. Gladhill, (8 Met. Rep. 168,) the question was as to the right of the police court of Lowell to receive the declaration of intention. The court say, “As the authority which any state court can have on this subject is derived from the law of the United States, congress alone can prescribe a uniform rule of <mask>.” They proceed to examine the law of 1802, and decide that the police court was a court of record within its meaning. (See, also, Towle’s case, 1 Leigh’s Rep. 773.)


“ h. Comment ‘ ‘ There is no provision in the law authorizing American consuls to require the posting of a bond by alien applicants for either immigrant or nonimmigrant visas. Numerous suggestions have been received from consuls throughout the world that such authority be given. Others have suggested that consuls be given authority in doubtful or borderline cases to withhold the issuance of visas until confirmation has been received from the Immigration and <mask> Service that a bond has been posted in the United States in behalf of the applicant and that such a procedure would materially reduce the number of nonimmigrant applicants for visas who are not bona fide nonimihigrants. ‘ ‘ Similar suggestions were received from consuls with reference to applicants for visas who are applying for admission to the United States for permanent residence. The usual sponsor’s affidavits are of no value if the immigrant alien becomes a public charge, since they involve merely a moral obligation and are not enforceable as contracts. In view of certain proposals to be made regarding the power of consuls to refuse visas in practically every case in which the Immigration Service has the right and duty to exclude, it is not believed that consuls will experience the same difficulties of decision in the future. Consequently, the subcommittee does not believe that the power to require bonds will be necessary to consuls. ’ ’ (P. 643.) Notwithstanding the requirements imposed by the visa division of the State Department and enforced by consular officials abroad which led to the use of the language (in the affidavit of these defendants) upon which the present suit is based, no statute, regulation or rule prescribes that a financial sponsor of *621an immigrant undertake an obligation of the kind which the plaintiff contends was here assumed. The official instructions of the State Department to sponsors (DSL-650-3-30-56), titled “General Information Regarding Visas for Immigration ”, read in part: “Affidavit of Support: There are no prescribed forms to be used by persons in the United States who desire to furnish financial sponsorship in the form of a so-called affidavit of support for presentation to the consul on behalf of an immigrant. Each sponsor may furnish a statement in affidavit form to show his financial ability and willingness to contribute to the immigrant’s support, giving due regard to the sponsor’s obligations toward members of his own family and other persons. The statement of the sponsor should include information regarding his income, and where material, information regarding his resources, obligations and expenses and the plans and arrangements made for the applicant’s support in the absence of a direct obligation toward him. To substantiate the information regarding income and resources the sponsor may attach to his affidavit a certified copy or notarized copy of his latest income tax return; a statement from an employer showing the employee’s salary and the length and permanency of employment; a statement from an officer of a bank regarding the sponsor’s account, showing the date the account was opened and the present balance, or by other evidence adequate to establish the financial ability of the sponsor to carry out his financial undertaking toward the immigrant. ’ ’


3d. That the states had, originally, the power to naturalize; that the provision of the constitution, giving power to congress to establish a uniform rule of <mask>, did not exclude the states from naturalizing, although they must follow, in doing so, any rule prescribed by congress. The power is not given to congress at all, but only the power to direct the states in what manner, and according to what rules, they shall naturalize.


(Cross examined by Van Wyck.) Was in bed at M'Evoy’s and was awakened by the guns, between four and six o’clock. Was very much frightened, and was afraid of being murdered. Would not have been frightened had it not been on the 12th of July. If Orangemen are not stopped in America, America will have cause to dread the consequences. He told others he was afraid of his life. Cannot tell the precise time he went to work. Thinks it was between six and eight o’clock. None in the shop but were aware of the guns. When he went to the police he thought the law would protect him, but it was not there, he had justice; but he could not make the law understand it. M'Evoy’s men ha¿ looms where they *91wrought. All heard the guns that were awake. Talked at breakfast about it. Morris said he saw guns at Brady’s and Waugh’s. Witness saw the Orange flag for the first time, between nine and ten o’clock, before Green’s door. It remained there, Nobody was then hurt. They stood around it in procession, and hurraed for king George. Mr. Fagan came out with his <mask> paper, and said he had sworn against all monarchs, particularly against George III. and IV. The principal reason why he was afraid and went to the police, was, that he never knew an Orange procession but blood was spilled. Witness offered to swear at the police to their proceedings. The officers could not understand the danger of the catholics. They threatened to tear the popish liver out of them.


Over the past 20 years, changes in federal immigration law have subjected significantly more noncitizens to detention and deportation by virtue of criminal convictions. But at the time the 10-year tolling provision at issue here was enacted by the Legislature, the arrest and detention of illegal aliens for deportation was clearly authorized by federal law. (See e.g. Ojeda-Vinales v Immigration & <mask> Serv., 523d 286 [2d Cir 1975]; Trias-Hernandez v Immigration & Naturalization Serv., 528d 366 [9th Cir 1975].) Indeed, the deportation of noncitizens by virtue of criminal convictions was first authorized by the Immigration and Nationality Act of 1917. (See Padilla v Kentucky, 559 US —, —, 130 S Ct 1473, 1478-1480 [2010] [discussing the history of federal laws providing for the deportation of noncitizens because of criminal convictions].) The Legislature obviously could have provided that periods of immigration detention would toll the running of the 10-year period. But, in the court’s view, the Legislature clearly did not do *602so. Courts obviously should not legislate in the guise of interpretation. (McKinney’s Cons Laws of NY, Book 1, Statutes § 73.) Holding that “incarceration” under the statute would include detention by immigration authorities for the purpose of deportation, in the court’s view, would constitute an impermissible judicial policy judgment rather than an appropriate interpretation of the statute based on the intent of the Legislature.


provide one copy of each of the following, free of charge, if needed by an individual seeking to obtain a form of personal identification described in subsection 1 of this section in order to vote: (a) A birth certificate; (b) A marriage license or certificate; (c) A divorce decree; (d) A certificate of decree of adoption; (e) A court order changing the person's name; (f) A social security card reflecting an updated name; and (g) <mask> papers or other documents from the United States Department of State proving citizenship. Any individual seeking one of the above documents in order to obtain a form of personal identification described in subsection 1 of this section in order to vote may request the secretary of state to facilitate the acquisition of such documents. The secretary of state shall pay any fee or fees charged by another state or its agencies, or any court of competent jurisdiction in this state or any other state, or the federal government or its agencies, in order to obtain any of the above documents from such state or the federal government. § 115.427.6(2). Furthermore:


override the Census Act’s protections for covered census information possessed by the Commerce Department. IIRIRA Opinion. The statute at issue prohibited any federal, state, or local government entity or official from restricting any government entity or official from “sending to, or receiving from, the Immigration and <mask> Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Id. at *4 (quoting 8 U.S.C.A. § 1373(a) (West 1999)). Al- though the opinion rested primarily on a reading of the statute that con- strued the restrictions on “government entities” as not encompassing Congress’s enactment of census confidentiality provisions, see id. at *6, this Office, in support of this conclusion, reiterated that “[i]n light of the federal government’s longstanding commitment to confidentiality in this area, there is every reason to expect that Congress would have spoken with particular clarity if it had intended to cut back on the scope of 13 U.S.C. § 9(a) in enacting” a new statute. Id. at *11. We thus concluded that “the absence of a reference in either statute to the other suggests that the text of 13 U.S.C. § 9(a) should be construed to mean just what it says, and that [the immigration statute] should be understood to have left in place the confidentiality requirement that 13 U.S.C. § 9(a) establishes.” Id. at 8–9 (footnote omitted). In light of this consistent precedent, we would construe section 215 to override the preexisting Census Act protections for covered census infor- mation possessed by the Commerce Department only if the evidence of congressional intention compelled such a conclusion. Here, however, the evidence does not compel such a conclusion. Section 215 makes no reference to the census or the Census Act. And although Congress has amended section 9 of the Census Act on several occasions to establish exceptions, it has not added an express exception for section 215 orders in the wake of that provision’s enactment. Nor is there language in section 215 like that contained in the statute addressed in the 1944 Attorney General opinion concerning the Archivist’s role as custodian of governmental records. There, the statute expressly stated that the authority of the Archivist to take custody of records extended to all records “belonging to the Government of the United States (legislative, executive, judicial, and other)” and for purposes of carrying out that authority, “all” inconsistent federal statutes were repealed. Confidential Treatment of Census Records, 40 Op. Att’y Gen. at 327. By contrast,


*467The present contention of the husband’s attorneys that he left the marital home in New York with his wife’s consent and with an intention to pay a temporary visit to Poland is completely refuted by the evidence. When he departed from this country in 1931 he took with him all his securities. He left no property behind him here. His letters showed that he was disappointed in not obtaining a position here. Undoubtedly he had strong attachments to his native land. His <mask> as an American citizen was of little consequence to him. Soon after his arrival in Poland he acquired what he called a home. He entered into and continued the activities of a permanent resident, became enthusiastic and sentimental over the culture of that country and the business opportunities there and their contrast with America. His intent at the time of his departure in 1931 was plainly to effect a permanent separation and abandonment of his wife accompanied by a fixed and resolute determination not to return to America. His promise to return made to his wife at the time of his departure was, therefore, sheer deceit. The finality of his decision to leave this country forever and to abandon his wife is emphasized in his own words in a letter written in 1936 in which he said: “ I have burned all my bridges behind me and have irrevocably decided to stay here for good.”


To grant the request of the <mask> Service for an “ adjournment without date ” is to relegate the petitioner to limbo. The Naturalization Service is an investigatory agency and under administrative law its functions are to investigate and to report — not to determine — for the latter is a judicial function. To adjourn indefinitely and presumably only to be revived at the instance of the Naturalization Service, under the circumstances, encroaches upon the judicial prerogative.


“As we construe this act, it confers the privileges of citizenship upon women married to citizens of the United States, if they are of the class of persons for whose <mask> the previous acts of congress provide. The terms ‘married,’ or ‘who shall be married,’ do not refer, in our judgment, to the time when the ceremony of marriage is celebrated, but to a state of marriage. They mean that whenever a woman who under previous acts might be naturalized, is in' a state of marriage to a citizen,'whether his citizenship existed at the passage of the act or subsequently, or before or after the marriage, she becomes, by that fact, a citizen also. T-Tis citizenship, whenever it exists, confers, under the act, citizenship upon her. The construction which would restrict the act to women whose husbands, at the time of marriage, are *239citizens, would exclude far the greater number, for whose benefit, as we think, the act was intended. Its object, in our opinion, was to allow her. citizenship to follow that of her husband, without the necessity of any application for naturalization on her part; and, if this was the object, there is no reason for the restriction suggested. The terms, “ who might lawfully under the existing laws,” only limit the application of the law to free white women * * *.” The defendants also contend that the plaintiff does not come within the decision of either of the two foregoing cases, because- on the day of Hafner’s death she was not twenty-one years of age, and for that reason could not, on that day, have been naturalized under the laws existing prior to the act of 1855. This objection has no greater force, if as much, than the objections urged against Mrs. Burton. The plaintiff was no more incapacitated on that account, than Mrs. Burton was by reason of non-residence. Indeed she was not so much, for, if necessary, she. could confessedly have become naturalized under the naturalization acts within a few months after Hafner’s death, while Mrs. Burton could not for five years after her husband’s death. Age of twenty-one years, under the then existing laws, was simply one of the qualifications necessary for an applicant to have, just as it was necessary for him to show a five years’ residence. The plaintiff comes clearly within the reasoning, if not the letter, of the two decisions. The statute says, “ any woman,” and not “ any woman of twenty-one years of age.” There is no more reason, in considering the general policy of the naturalization laws, why, in case of marriage with a citizen, the requirement of twenty-one years of age should not be dispensed with, than the requirement of a five year’s previous residence. They are both made requirements for the purpose of furnishing evidence of fitness to undertake the duties and responsibilities of citizenship, and one is no more important or necessary than the other. The fact of marriage furnishes evidence of such fitness, and the law says that *240a woman who is capable of lawfully entering into the marriage relation, and does so, marrying a citizen, is fitted to become, and, ipso facto, becomes a citizen. The duties are no more onerous upon her than upon a native female of the same age, and she is still under the same disabilities. Her naturalization simply removes the disability resting upon alienism, and throws around her the protection of the nation. The propriety of this may be urged as a cogent reason in support of such a construction to the act as will give to the wife of the citizen the same protection as it gives to him and to their children. She has linked her destiny with the country by the strongest of ties. Citizenship does not depend upon age. To be qualified as a voter, a citizen must be of the age of twenty-one years, and upwards. On the other hand, infants may be citizens by birth.


Besides the conversation in court on the subject of immigration and guilty pleas, appellant was advised of the fact each guilty plea could have immigration consequences for him. In the plea form for each separate conviction, appellant placed his initials in a box that stated: "I understand that if I am not a citizen of the United States, my plea of GUILTY may have the consequences of deportation, exclusion from admission to the United States, and/or denial of <mask> or amnesty pursuant to the laws of the United States. I understand that Federal law provides that these consequences are mandatory for certain offenses." Also, appellant's counsel, the prosecutor, and the trial court signed off on each guilty plea form acknowledging appellant was fully aware of his rights and the consequences of the plea; and that this was done freely, voluntarily, and knowingly.


On September 21, 1978 defendant, then approximately 18 years of age, entered a plea of guilty to manslaughter in the first degree before Honorable John R. Starkey, now retired. On November 17, 1978 he was sentenced to a minimum of 5 and a maximum of 15 years in State prison. The sentence was appealed to the Appellate Division, Second Department, on the grounds of excessiveness. The Appellate Division affirmed, without opinion, on June 11, 1979. Defendant was released on parole on June 20, 1984. Since that time he has been detained in the Immigration and <mask> Processing Center detention facilities, pending deportation.


AB 813's legislative history also indicates the Legislature intended AB 813 would be a part of a larger statutory scheme that addresses adverse immigration consequences including, but not limited to, removal proceedings. Specifically, several committee reports include references to another, already existing statute, section 1016.5. (Sen. Com. on Public Safety, Rep. for July 7, 2015 hearing, p. 8; Sen. Com. on Public Safety Bill Analysis of AB 813 (2015-2016 Reg. Sess.), July 6, 2015, p. 2; Sen. Com. on Public Safety Bill Analysis of AB 813 (2015-2016 Reg. Sess.), May 9, 2016, p. 2.) Section 1016.5 requires that a trial court, before it accepts a defendant's guilty or no contest plea to a felony offense, advise the defendant that "the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States." (§ 1016.5, subd. (a), italics added.) As a Senate committee report regarding AB 813 correctly states, when the court does not give this admonishment, section 1016.5 also authorizes the vacating of the resulting conviction for persons who are no longer imprisoned or legally restrained: "A


The law requires as an absolute prerequisite to <mask>, that the alien should have declared his intention to become a citizen two years prior to the final action. Did the plaintiff ever thus declare his intentions ? He evidently supposed he had, but that which he supposed to be such preliminary step was not such. It was a mere report of himself, under a law which had been repealed and was, consequently, of no avail. The records of Saratoga county showed that he never declared his intentions there. He might have done that in any other county, and he knew whether he had or not. The fact that he offered no proof on the subject was pregnant with meaning, and must not be overlooked by the jury.


“Any woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a'citizen of the United States, shall be deemed and taken to be a citizen.” It was held by the court of appeals in Burton agt. Burton (1 Keyes, 373), that the words “who might lawfully be naturalized under the existing laws,” were only a limitation of the application of the section to a class of persons, viz.: to white women, and hence it was determined that an alien woman who had married a citizen, but who had never been in the United States, became, by the act of marriage, a citizen, and that such act stood in the place of all the requirements demanded by the <mask> laws.


The question is a novel one, never having been directly passed *80upon by any adjudication in the courts of this State. It has, however, been directly under consideration and adjudicated in some of the federal circuit courts, and in those cases the defendant’s position that he became a citizen by force of the statute (sec. 2172), at the time citizenship was conferred upon his mother, is fully sustained. Under the Constitution of the United States, congress has exclusive jurisdiction over the subject of <mask>, to the exclusion of the States. Under the power thus conferred congress has enacted a system of laws for the purpose of conferring citizenship upon aliens. Under such laws, a class of persons who are aliens are made citi • zens, by force and operation of the statute without any action on their part, as for instance, a woman who intermarried with a citizen, and the children of persons who have been naturalized upon their own application and they being under the age of eighteen at the time of the naturalization of their parents. Another class of persons may become citizens by instituting proceedings in a court of record and proving the facts which are required to be established by the statute as a condition to the right of citizenship.


In response to defendant’s argument that he could not legally be employed, plaintiff maintains that regardless of the legality of employment, any immigration reference would prejudice the jury because of the present national controversy about undocumented aliens employed here.6 Further, plaintiff says allegations of immediate deportation are untrue. He states that his evidence (including expert testimony) will show that he is legally present in this country. The federal government has instituted no administrative or criminal proceedings against Maliqi, and plaintiff maintains he voluntarily revealed his presence to the Department of Homeland Security with his asylum application. According to plaintiff, he is entitled to asylum under both international and domestic law (see generally Immigration and Nationality Act of 1952 § 252 [codified at 8 USC § 1282]; Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supra n 5). Because his appeal remains pending, plaintiff says he retains the right to remain in the United States during reconsideration of his BIA case and no negative inference arises from that fact (see generally Yeung v Immigration & <mask> Serv., 76d 337 [11th Cir 1995]).


On one side is the strong presumption arising from the whole record that the report of 1831 was the only preliminary proceeding. And on the other is the express adjudication of the Court of Common Pleas in their judgment of <mask>, that the plaintiff had “ in due form of law, more than *437two years since, declared Ms intention to become a citizen of the Urnted States.”'


The permission, then, by law, to an alien, to take and hold lands to him and Ms heirs, or a grant from government by authority of law, to an alien and his heirs, does necessarily imply, that he may transmit by descent to Ms children, or *708other alien heirs, and that his heirs may take the land in question equally as if they were natural born citizens. No alien, in his right mind, would purchase upon any other construction ; many of them must have no expectation of having any other than alien heirs. It would be painful for them to await ’ the arrival of the period of <mask>, and the Uncertainty of acquiring a new race of natural born or naturalized descendants. They may be too advanced in life to expect it, or they may be suddenly cut off in the midst of their expectations. And permit me to ask, where would be the benevolence, or the magnanimity, or the justice, or the good faith of government, if it should so far deal with an alien as to permit him to purchase lands to himself, and his heirs, or to make, (as in the present case,) á gratuitous grant of lands to him and his heirs, to-day, and, then, on the morrow, to snatch it from his orphan son,' under the pretence that he was an alien. Such a privilege would be, ill truth, no privilege. It would be a heartless and a fraudulent grant, with the deadly power of escheat concealed in its enclosure.


Eespecting the immediate issue as to the court’s power to grant an indefinite continuance in a final hearing, Judge Pabkeb, in Schwab v. Coleman (145 F. 2d 672, 677) ruling for the Fourth Circuit, Circuit Court of Appeals, overruled such determination by the District Court, holding expressly that the lower court could not continue the matter indefinitely: “We do not think that their right to such review can be defeated by continuing the hearing of the petitions over their protest. A continuance may, of course, be granted in <mask> cases as well as in others, and whether or not such continuance shall be granted is ordinarily a matter resting in the court’s discretion; but the discretion thus vested in the court is a sound, not an arbitrary, discretion; and it may not be exercised in such way as to result in the denial of the right of review to which a party is entitled.”


Subsequently to the September conversation, according to Cartwright, he did not, as a matter of fact, sleep in the defendant’s house. On October 14, 1907, being the last day of registration, Cartwright appeared before the registry board in the sixth election district of the third assembly district of Hew York county and registered as a voter. The entry of his registration was offered and received in evidence, and by such entry the following appeared: “Hame of electors. Surname, Cartwright. Christian ñamé, Robert H. ' Residence, number or-other designation, 186. Street or avenue, Lafayette. Humber of room or floor occupied by elector, third. Age of elector 37. In State, twenty-one. In county, months,-,” either eighteen or nineteen, there being an erasure. “ In the election district, six months. Country of nativity, England. If naturalized citizen, date of <mask> certificate, September 26, 1906. Court issuing naturalization certificate, Southern Dis*119trict of Yew York. State, Yew York. City or town, Same. Yumber and name of street or avenue,-; first vote.”


It is a matter of no small difficulty to mark out with precision the line of jurisdiciion between the United States and the individual states ; and perhaps we shall not meet^with a more correct view of the subject than is taken by the same eminent writer before quoted. He reduces the exclusive delegation of power to the United States, or the alienation of state sovereignty, to three cases : 1st. Where the constitution in express terms grants exclusive'authority to the union : 2d. Where it grants in one instance an authority to the union, and in another prohibits the states from exercising like authority : and, 3d, Where it grants an authority to *529the union, to which a similar authority in the states would be absolutely and totally contradictory and repugnant. Under this last case, he instances that clause which declares that congress shall have the power “ to establish a uniform rule of <mask> throughout the United States.” This, observes the writer, must necessarily be exclusive, because if each state had the power to prescribe a distinct rule, there could be no uniformity. Now if the United States have the power to “ regulate the value of money and of foreign coin, and to provide for the punishment of counterfeiting the current coin of the United States, they must have the’exclusive jurisdiction ; otherwise, two governments equally sovereign and independent, would have jurisdiction over the same subject ; and the value of the coin, and the punishment for counterfeiting, might be different in every state. The exercise of such authority by the states would be “ absolutely and totally contradictory and repugnant” to the exercise of it by the United States. Indeed, concurrent jurisdiction in criminal cases, between independent governments is incompatible with sovereignty ; and the United States and the individual states are as sovereign and independent of each other in all cases of a criminal nature within their respective jurisdiction, as the states themselves are.


If, on the other hand, it be deemed of importance that an entry should be made in some book, the entries contained in the books marked “<mask> Index ” and “ Naturalization Record ” fully answer every requirement that can be made in that respect. These books are in the nature of special minute books. They contain the record of special proceedings entertained by the court not in the exercise of its-ordinary or general jurisdiction as'a court of the state of New York, but in the exercise of a jurisdiction specially delegated to it by act of congress ; and the entries, as they appear therein, present in themselves a better and more detailed record, and at the same time one which is better adapted for purposes of ready reference, than the ordinary entry of the fact of admission would present or be, if inserted in the general minute book of the court. There is no law or rule which forbids this court to keep as many minute books as it may deem expedient.


Plaintiff states she arrived in the United States from Bulgaria on a visitor’s visa in July of 1990. After arrival, she filed an application for asylum with the Immigration and <mask> Service (INS), which is still pending. Plaintiff has had a work authorization issued by the INS since the fall of 1990, and has been employed for approximately six of the last seven years. Allegedly as the result of the violence of a roommate, plaintiff went to the Rockland Family Shelter in the fall of 1997. Plaintiff states that she became homeless in March 1998 and either voluntarily went to the Rockland County Emergency Shelter, or was placed there by the Rockland County Department of Social Services (RCDSS), on March 10, 1998. She was moved to a motel in May of 1998. On May 9, 1998 the RCDSS notified plaintiff it was discontinuing all assistance. A fair hearing was held June 4, 1998, and the May 9, 1998 decision was affirmed on June 25, 1998. Following the June 25, 1998 decision, the complaint was allegedly amended to include a challenge to that decision under CPLR article 78.


It is evident that the political club is being formed with the purpose of affiliating with one of the major political parties of this State, and that it will in the future refer to itself by the name of one of those political parties. The stated purposes, which are to teach Americanism and encourage <mask>, and encourage citizens to exercise their right to register and vote, are purposes for which no new corporate body is needed. If the true purposes are to be known as a political club which is part and parcel of one of the major political parties, then the consent of the chairman of the county committee of said political organization should be annexed to the application. If it is a nonpartisan political organization, the certificate should so state.


I quote further from Schneiderman (supra, p. 139): “ Our concern is with what Congress meant to be the extent of the area of allowable thought under the statute. By the very generality of the terms employed it is evident that Congress intended an elastic test, one which should not be circumscribed by attempts at precise definition. In view of our tradition of freedom of thought, it is not to he presumed that Congress in the Act of 1906, or its predecessors of 1795 and 1802, intended to offer <mask> only to those' whose political views coincide with those considered best by the founders in 1787 or by the majority in this country today. Especially is this so since the language used, posing the general test of 1 attachment ’ is not necessarily susceptible of so repressive a construction.”


The decedent, Simeone Colella, apparently at some time during his life was an Italian subject. However, we have examined the official <mask> records in the Onondaga County Clerk’s office and find that the decedent was legally naturalized an American citizen in Onondaga County on June 27, 1944, certificate No. 6157156. The authorities relied upon by petitioner might well apply if this decedent had died a subject of Italy and not an American citizen. However, this was not the case and all of the authorities cited by petitioner apply only to a case where the decedent died a subject of a foreign country and not an American citizen.


On this motion, defendant urges renewal on the ground that she is offering new facts, in the form of certificates issued by the U.S. Immigration and <mask> Service in 1997, attesting to the approval of visas for her five children. (Affirmation of Daniel S. Kratka, Esq., in support of motion [Kratka affirmation], exhibit D.) She also proffers her divorce decree from her first husband, Jose Polanco, along with her certificate of marriage to her current husband, David De Jesus (id., exhibit B); the birth certificate of her current husband revealing that he is an American citizen by birth (id., exhibit E); and her own affidavit in which she states, inter alia, that in 1999 two of her half brothers lived in the United States and that she worked as a perfume salesperson in her neighborhood, having stopped working as a waitress in 1998. (Id., exhibit C, affidavit of Gleni Castillo De Jesus, sworn Apr. 7, 2011 [defendant aff] H1Í 7, 8.) She maintains that these new facts correct the facts which were misrepresented in her presentence report (New York City Department of Probation presentence investigation report, June 21, 1999 [presentence report or PSI]) or clarify her testimony at the hearing, and that they would have changed the determination of the prior motion, had they been offered at the hearing.


*222This type of conduct poses serious economic problems for our citizenry. "Employment of illegal aliens in times of high unemployment deprives citizens and legally admitted aliens of jobs; acceptance by illegal aliens of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens; and employment of illegal aliens under such conditions can diminish the effectiveness of labor unions.” (De Canas v Bica, 424 US 351, 356-357.) Additionally, the court cannot give credence to plaintiff’s claim of ignorance. As stated in Londono v Immigration & <mask> Serv. (433d 635, 636): "The petitioner was warned in his application for a visitor’s visa that gainful employment in the United States would constitute a violation of visa conditions, and he agreed, in making that application, to abide by all the terms of his admission.”


By notice dated April 4, 1975, the United States Immigration and <mask> Service wrote to plaintiff at its detention quarters advising him that an order of deportation to the Dominican Republic had issued. A copy of this notice was sent to the plaintiff’s attorney of record in this proceeding. Thirteen months later, at a pretrial conference on May 21, 1976, this matter was settled with the aid of the court for $2,500. The court’s card shows the notation, "Settled for $2,500 subject to approval of client * * * Hold until 5-28-76.” Plaintiff’s departure to Santo Domingo was not discussed. In June, 1976, and again in October, 1976, plaintiff’s attorney of record wrote to plaintiff in the Dominican Republic advising him of the settlement and enclosing a general release for plaintiff’s signature. The October, 1976 letter was returned with the notation "moved” on the envelope, and plaintiff’s present whereabouts are unknown.


The court is unconvinced that the Immigration and <mask> Act operates to preempt New York State from exercising its authority over paroled aliens, who, having been deported, have illegally reappeared in this country. Under the Immigration and Nationality Act (8 USC § 1101 et seq.), deference by a State is triggered when INS asserts jurisdiction. This is conceded by the State. We are faced here with a situation where the State deferred to INS with respect to Calderon who was paroled and then deported. However, Calderon has illegally presented himself back within the jurisdiction of the State in violation of the conditions of parole. As INS has not yet asserted jurisdiction, the State Division of Parole has jurisdiction.


The defendant admitted shooting her husband with a shotgun, severely wounding him. This, however, is not the whole story as is reflected by the presentence report itself. The report notes that the defendant claimed her husband professed love for her resulting in their marriage; that defendant petitioned the Immigration and <mask> Service for permanent resident status for her husband because he was an illegal alien; that when he received his papers he confessed the marriage was a hoax and admitted he had a paramour and two children; and, finally, that he abused her.


On June 27, 2016, Aguilera filed an application for a writ of habeas corpus under Texas Code of Criminal Procedure article 11.09 through his habeas counsel, David Breston. In his application, Aguilera alleged only that Escalante had provided ineffective assistance by neglecting to advise him about the immigration consequences of his guilty plea to assault of a family member under Padilla , thus, rendering his plea involuntary. Aguilera's habeas counsel also filed a memorandum of law stating that, while his client had completed his term of deferred adjudication and was not presently confined or being deported, Aguilera was suffering collateral consequences from his guilty plea because it subjected him to removal proceedings if he traveled outside the country and returned and because it frustrated his attempt at <mask>. Escalante submitted an affidavit stating that he had, in fact, issued appropriate verbal admonishments to Aguilera surrounding the immigration consequences of his guilty plea.


The plea form includes the statement that Tapia's attorney had explained the consequences of the plea to him and "if not a citizen, my plea may have the consequence of my deportation, exclusion from admission to the United States or denial of <mask> pursuant to the laws of the United States." Tapia initialed this statement. Above Tapia's signature at the end of the form, it states he has read each item on the form, discussed it with his attorney, and understands each item; his initials by each item is proof thereof.


All courts look with favor on proceedings to admit aliens to citizenship, and it is just that they should, for the want of acquaintance with our laws and judicial proceedings, the unsettledness of their residences in general for some years and the consequent liability to lose their documents and papers, should shield them from technical and sharp objections to their <mask> papers whenever there appears to have been an honest intention to become a citizen and comply with the laws of our country.


*22Even, therefore, if a defect in the record existed in conse qnence of the omission of some ministerial act by the clerk, the United States government, in the absence of a law declaring such defect final, could not afford to insist upon it. The United States are so largely indebted to immigration for their power, greatness and prosperity that it would be an act of folly to return to the illiberal policy of George III, who, in consequence thereof, stands charged in the declaration of independence with having endeavored to. prevent the population of the states by obstructing the laws for the <mask> of foreigners and by Refusing to pass others to encourage their immigration hither.


The first to be considered here are the Revised Statutes of the State, providing that any alien who has come into the United States may make a deposition in writing that he is a resident of and intends always to reside in the United States and to become a citizen thereof as soon as he can be naturalized, and that he has taken such incipient measures as the laws require to enable him to obtain <mask>, which shall be certified and filed and recorded by the secretary of State. Any alien making and filing such deposition, is thereupon authorized and enabled to take and hold real estate, and during the next six years thereafter, may dispose of the same as if he were a native born citizen. (2 R. S. [6th ed.], 1096, §§ 15, 16). Then came the law of 1845, as amended; Laws of 1845, chapter 115 ; Laws of 1874, chapter 261; Laws of 1875, chapter 38; the last two being amendments of section 4 of the law of 1845, the only section of that law affecting this case.


The defendant contends, as he was under the age of twenty-one when his mother became a citizen, and being also at that time a resident of the United States, the privileges and rights of citizenship were conferred upon him “ ipso facto, et eo instanti,” by virtue of the provisions of section 2172, United States Revised Statutes, which declares that “ the children of persons who have been duly naturalized under any law of the United States * * * being under the age of twenty-one years at the time of the <mask> of their parents, shall, if dwelling in the United States, be considered as citizens thereof.” This position is contested by the people and the attorney general argues, that as the defendant was alien born he could not become a citizen without action on his part in compliance with section 2167 which provides for the naturalization of minors who become residents of the country under the age of eighteen years.


Mr. Justice Brandéis, speaking for an unanimous court in Tutun v. United States (270 U. S. 568, 576), firstly noted the historic role of the courts in <mask>: ‘ ‘ The function of admitting to citizenship has been conferred exclusively upon courts continuously since the foundation of our Government. See Act of March 26,1790, c. 3,1 Stat. 103. The federal district courts, among others, have performed that function since the Act of January 29,1795, c. 20,1 Stat. 414. The constitutionality of this exercise of jurisdiction has never been questioned. If the proceeding were not a case or controversy within the meaning of art. Ill, § 2, this delegation of power upon the courts would have been invalid. Hayburn’s Case, 2 Dall. 409; United States v. Ferreira, 13 How. 40; Muskrat v. United States, 219 U. S. 346.”


Section 1016.5, subdivision (a) provides: "Prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States."


The counsel for the petitioner, with a deft ingenuity, chooses to rest on some favorable presumptions of the common law, ignoring all the law I have referred to. He gave no proof of foreign or Jewish law, and no documentary proof of any kind. The certificate of Henry Spondre’s <mask> was produced, and it states that Henry Spondre was married to Rachel, and that “ Goldie ” was his own daughter. The trouble is not with the common-law presumptions counsel invokes, but with their irrelevancy to the state of facts disclosed. This playing back and forth in a litigation with logical see-saws I abhor, when it is not loyal to justice. On the facts shown the briefs *315throw little light which would aid me in reaching any just conclusion. When Rachel Spondre, in her simple testimony, swore to a divorce and marriage by a rabbi, her testimony at once challenged my attention. It introduced something of importance to her, and its validity ought fully to be considered or justice may fail this poor woman.


It is claimed on behalf of the devisees, Spalding and Lewin, that such disability has been removed by the provisions of the act of 1845 (chap. 115) to enable resident aliens to hold and convey real estate, etc. (4 Edm. St., 300.) The first section of that act provides that any alien resident of this State to whom any real estate has been or thereafter may be devised, before making the deposition mentioned may, on filing such deposition, hold the real estate devised to such alien in the same manner, and with the like effect as if such alien at the time of such devise were a citizen. These devisees are within that description of persons. There can be no doubt that this enactment protects and confirms the devise to Susannah E. Spalding, unless to give it that *311effect would divest a vested estate in the citizen heirs of the testator. We think it had no such effect, but that its effect was to lessen the estate which but for the statute and devise would have descended to the citizen heirs, and to declare that the estate which actually-descended to the latter, should be defeasible upon the filing of the depositions aforesaid. The statute cannot be defeated, but on the-contrary, must be carried into effect, if any legal means can be devised for that purpose. We find no difficulty in performing that duty. For it is necessary only to hold that the estate which descended to the citizen heirs was subject to the operation of the statute ; that the full effect of the devise was postponed until said devisees should file their depositions, and that in the meantime the estate was vested in the citizen heirs, subject to be divested by the filing of the depositions. That the. legislature has. power to make such a change in the rules of descent, we think admits • of no question. (Cooley Const. Lim., 359, et seq.) It is equally clear, that .the object of the act of 1845 was to remove the disabilities resting upon alien devisees, at’ the time of its passage, in case they filed the deposition referred to.. It is worthy of mention that the fourth section of this act, also, in terms, enables alien heirs to take by descent from a resident alien, with the same effect as. if such resident alien were a citizen. Strictly construed, this provision would not embrace a descent cast from a citizen. (See Larreau v. Devignon, 5 Abb. [N. S.], 367.) It is not necessary to decide whether such a construction would be compatible with the intent of the legislature manifested in the act; otherwise, we should be strongly inclined to hold that their intention in enacting the fourth section was to remove from resident- aliens all disability to hold real estate by inheritance from a resident alien ancestor, who had acquired the same by purchase, and to confer upon them capacity to take and hold the same in case they should take the preliminary proceedings for becoming citizens. That object is in furtherance of enlightened public policy, and affords complete ground for a liberal interpretation of the statute. But whether such construction be correct or not, the capacity to take by descent, which this section confers upon resident aliens, authorizes them to hold real estate devised to them within the meaning of the statute of wills. (2 B. S., 57, § 4.) The statute certainly does not invalidate a devise to *312one who is capable of taking and holding real estate, either by purchase, devise or descent from any person. It does not require a general capacity to take and hold by all modes of vesting estates, or a special capacity to take and hold by devise. It is enough- if the devisee is capable of holding by either mode of devolving seizin of real estate. The case of Heney v. The Brooklyn Benevolent Society (39 N. Y., 333) is not in conflict with, but is rather confirmatory of, the foregoing views. That case arose under section 1 of the act of 1843 (4 Edm. Stat., 299), and there was no devise or grant in the case, but only a descent cast before the <mask> of the heirs. Section 1 of the act of 1843 only enabled heirs of the intestate who had become naturalized before his death, to inherit his estate; whereas the first section of the act of 1845, in terms, confers capacity to take upon alien devisees who have filed the deposition after, as well as those who had filed it before the' passage of the latter act. Nor does the saving clause in the eleventh section of the act of 1845 qualify the operation of the provisions thereof to which we have referred, for the reason that that section excepts from the operation of the act only interests which had become vested before its passage ; whereas the death of the testator did not occur until sixteen years after its passage.


Professor Milton It. Konvitz in his text, Civil Eights in Immigration [Cornell Univ. Press, 1953], pp. 142-143 states: 11 The Constitution authorizes Congress to establish a uniform rule of <mask>, but this power of Congress, the Supreme Court has said, ‘ is not trammeled, and it may grant or withhold the privilege of naturalization upon any grounds or without any reason as it sees fit.’ Thus, with regard to naturalization, as with immigration and deportation, Congress is omnicompetent. But while the Constitution does not confer upon aliens the right to naturalization, once Congress enacts a statute ‘ there is a statutory right in the alien to submit his petition and evidence to a court, to have that tribunal pass upon them, and, if the requisite facts are established, to receive the certificate * * * There is, of course, no ‘ right to naturali-


The court, however, is of the opinion that the inadequacies of the record relating to the proof of heirship go beyond merely the question of whether the deaths of Henrietta and Henry can be presumed by reason of their absence. Primary in this regard is the complete absence of any documentary evidence whatsoever. No birth, death or marriage certificates or the like were introduced to establish any of the critical facts, although presumably some of these records are available. The attorney conducting the search or investigation testified to a search of Surrogate’s records, the insertion of advertisements in the New York Times and a search through various telephone books. Such a limited investigation leaves much to be desired. Apparently no investigation of the exact area in which any of the children of Henry Steeneck resided was conducted, although the petitioner testified that Henrietta may have lived in the Williamsburgh section of Brooklyn around Devoc Street. In addition, there is no testimony that any office of vital statistics was consulted with regard to births, deaths and marriages; whether cemetery records, church records, banking, insurance, *95utility, school, census, Army and Navy, voting, police, motor vehicle, <mask> or other possible business or employment records were searched for possible leads as to the identity of the distributees.


Based then on the pertinent Federal and State statutes, this court concludes that since deportation is not a punishment but the refusal of the Federal Government to harbor persons whom it does not want (Bugajewitz v Adams, supra), and alien policies are exclusively entrusted to the political branches of government (Harisiades v Shaughnessy, supra), deportation of a citizen is exercised entirely through the executive branch of the Federal Government with such judicial review as authorized by Congress (Pilapil v Immigration & <mask> Serv., supra). Nor is such deportation an unconstitutional denial of equal protection (Guan Chow Tok v Immigration & Naturalization Serv., 538d 36, 38). As such, a New York State court does not have the authority or discretion to prevent the deportation of a noncitizen (8 USC § 1251 [a] [2] [B] [i]; *464Aguilera-Enriques v Immigration & Naturalization Serv., supra; Yanez-Popp v U.S. Immigration & Naturalization Serv., supra).


Penal Code section 1016.5, subdivision (a) requires that the trial court shall administer the following advisement on the record to the defendant before accepting a plea of guilty or nolo contendere: "If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States."


It appears that shortly before the scheduled date for the <mask> ceremonies, the Clerk of the court was directed by the Examiner bf the Naturalization Service to strike the names of both Matthias Reilly and his wife, Mary Reilly, from the listings on the court’s calendar of petitioners whose applications for citizenship had been approved and to whom the oath was to be administered. The petitioner had previously been advised by the Naturalization Service in a letter addressed to him at his home to appear in court On that day and was further informed that; “ If the Judge finds you qualified for naturalization, you will be sworn in as a citizen.” Thereafter, the Naturalization Service reconsidered its action, allegedly prompted by “ State and Federal Representatives ”, with respect to Mary Reilly for her name was re-inscribed and she was duly admitted to citizenship upon her taking the requisite oath together with all the other applicants.


In an analogous Federal proceeding, Judge Haight ruled that an illegal alien from the former Yugoslavia had not been prejudiced by the Immigration and <mask> Service’s failure to utilize an Albanian interpreter either in interviewing her at the port of attempted entry or in conjunction with her request for parole release pending adjudication of her request for asylum. (Micovic v McElroy, 790 F Supp 75, 76-77 [SD NY 1992].) The alien petitioner had been interviewed at the airport in the "Serbo-Croatian” (sic) language, which she asserted to be a language she "spoke,” but not the language that she "truly understood].” (Supra, at 76.) Parole had been denied at the administrative level on the ground that, regardless of what the applicant said in her own behalf through the Serbo-Croatian interpreter, or could have said through an Albanian interpreter, she "did not fall within the regulatory criteria for granting parole to aliens arriving with false documentation. See 8 C.F.R. §§ 235.3(b); 212.5(a).” (Supra, at 75.) The court concluded that the alien petitioner had not carried her burden, which the court characterized as one of showing that the administrative agency had "acted irrationally or in bad faith” (supra, at 76), because factual matters underlying the parole-denial decision (such as the falsity of a "green card” carried by petitioner) could not have been "affected in any way by the language in which the pre-detention interview was conducted, or petitioner’s relative degrees of comprehension between Albanian and Serbo-Croation.” (Supra, at 77.) Judge Haight noted, however, that the alien was scheduled for a political-asylum hearing before an Immigration Judge, and stated (in dictum): "[presumably at the hearing before the Immigration Judge steps will be taken to ensure the attendance of an interpreter able to guarantee petitioner’s comprehension of what is said to her and the Immigration Judge’s *537comprehension of what she says at the hearing.” (Supra, at 77.)


5. Plaintiff claims that he arrived in New York State in the Spring of 1958 and had been living continuously in Manhattan up to the date of the accident and claims that he has been living in Manhattan up to the present time. However, that the plaintiff was in hiding from Immigration Authorities after the denial of his application to obtain a suspension of his deportation order in November of 1964. Plaintiff did thereafter surrender himself to the Immigration Authorities and posted $5,000.00 bond pending the determination of proceedings which are presently being reopened before the Department of Immigration and <mask>, which proceedings are for the purpose of suspending the order of deportation. Pending the final determination of these proceedings plaintiff is free, having posted the aforesaid bond,


These provisions originally constituted the act of July 14, 1870, entitled, “An act to amend the <mask> laws and to punish crimes against the same, and for other purposes.” Prior to 1870 false swearing by either applicant or witness in a state court could only he punished, as decided in The People v. Sweetman (3 Park. Cr. 358), by the courts of the United States ; and whether an indictment would lie in any such case depended upon the statute of the United States relating to perjury.


It is the duty of the court to give these laws a fair and reasonable construction and to secure harmony in their operation whenever the same can be done without disregarding any positive provision or necessary intendment of the statute, and to reject any construction which would make one section inconsistent with the other relating-to the same subject. It is the citizenship of the parents which operates to confer citizenship on their children. In the original act of 1802, now brought forward and incorporated in title 30 of the Revised Statutes, the word “ naturalized,” as it occurs in the section now number 2172, is used as indicating that the parents have become citizens, and is not limited to cases where such parents have become citizens by a compliance with the provisions of the-act of 1802, but is susceptible of a construction which embraces all cases where the parents of the child became citizens by' operation of any existing law. The law of 1855, now section 1991, has not placed any limitations or qualifications on the effect of the intermarriage by the mother with a citizen, and declares in the most general terms, that any woman who is now, or may hereafter be married to a citizen of the United States, and who might herself be lawfully naturalized shall be deemed a citizen. The words “ duly natural*81ized,” as used in section 2172, sbonld be construed as having the same meaning as if tbe words used were “ have duly become citizens ” and should be construed accordingly. The primary meaning of the word “ <mask> ” “ is the act of investing an alien with the rights or privileges of a native subject or citizen.” (Webster.)


“I understand that I am being transferred to the custody of the Immigration and <mask> Service for the purpose of deportation only and that only the United States government can give me permission to return to the US after I have been deported. In addition, I will not return to the United States prior to my Maximum Expiration Date without prior contact with the New York State Board of Parole. I will forward notice of my proposed return to [the Division of Parole] . . . and I will not return to the US until I receive instructions from the Division of Parole telling me how and when to report to a Parole Officer.” (Affirmation in opposition, exhibit D.) On January 15, 2001, Washington CF released Mr. Tavarez to the control of the United States Immigration and Naturalization Service, which deported him to the Dominican Republic on February 2, 2001. (Affirmation in support of petition 11 5.)


We previously announced plans for the relocation of cottages and homes in eases where the owners ask such assistance and where it is practical to move the buildings. Our program will result in moving a considerable number of cottages to large plots desirably located overlooking the River. We shall provide roads and utilities and lease the plots for a twenty-year period on reasonable terms. Each cottage will have its own frontage on the River. ■Sr Sí' Sr The land acquisition procedures for seaway and power involve the co-operation of various State agencies including the Attorney General’s office, the Comptroller’s office and the Department of Public Works. Also involved are the International Joint Commission, International Joint Board of Engineers, International Joint Board of Control, Bureau of Customs, Immigration and <mask> Service and others. It is a complex administrative machine not easily kept in continuous, smooth and frictionless operation. It is perhaps the largest co-operative venture of this kind ever attempted. Since the reorganization of the Authority in April 1954, we have been beset by requests from local communities along the Saint Lawrence to relieve them of responsibilities resulting from the rapid expansion of activities in the area * * * Certain problems, some of which are annual and others of a non-recurring type, are bound to follow. There is no mystery as to our policy. We have made it quite clear that we do not propose to assume the normal operating expenses of the local communities * * * *885As to some of the more permanent improvements requiring large capital outlays, such as the baclly needed sewage disposal plant in Massena, we can be of considerable help. For instance, we have agreed to underwrite a large share of the cost of construction of the sewage disposal plant and are providing a new water intake in the Massena works with substantial conduits to deliver water to Alcoa and Massena. With the cooperation of the Saint Lawrence Seaway Corporation, we have repaired miles of roads and are constructing a new highway from Route 37 to Canada including a new bridge across the Grasse River. Finally, the Authority reiterates that its objective is not only to generate low cost power and to help build the new Seaway, but to conserve the natural beauty of this magnificient River and to promote the healthy development of the entire frontage for industry, residence and recreation. Immediately following is the “ Consultant’s Report ” which, on pages 16 and 17, shows by map that part of Wilson Hill which will become wholly an island. In addition, the project itself is thus described:


In Espichan, however, we encountered such a jurisdiction. There, we considered a plaintiff’s claim for derivative citizenship under the same statute, § 1432(a). As in Morgan, we had to consider whether Espichan’s parents had been legally separated at the time of Espichan’s father’s <mask>. Espichan’s parents had been married in Peru. Our inquiry into legal separation therefore looked first to the family law of Peru. We found “[a]rticle 326 of the Peruvian Civil Code of 1984 provide[d] that ‘[a] union in fact ends by death, absence, mutual agreement, or unilateral decision,’” 59 and concluded that Espichan had demonstrated that his parents’ marriage had ended by unilateral decision.


It was also enacted, at an early day, that any alien who had or might come into the United States, upon making and filing with the secretary of state a deposition or affirmation in writing, that he is resident in the state, and intends always to reside in the United States, and to become a citizen thereof as soon as he can be naturalized, and that he has taken such incipient measures as the laws of the' United States require to enable him to obtain <mask>, could take and hold real estate of any kind, to himself, his heirs and assigns forever, and might, during six years thereafter, sell, assign, mortgage, devise and dispose of the same, in any manner, as he might or could do, if he were a native citizen* but should have no power to lease or demise until he should become naturalized (1 Rev. St., 720, secs. 15, 16).


In the interim, petitioner has moved for an order directing that the Department of Justice, Bureau of <mask>, produce its complete file and that it “ produce the body of Matthias Reilly on a day certain to be fixed by the court.” In the supporting affidavit, there is an additional request for further relief, to wit: that the court order the petitioner to be transferred to a Federal detention center closer to his home and that of his family which is in Rockland County, New York.


It is to be noted that the section 1421 et seq. of title 8 of the United States Code set forth the congressional standards and prerequisites for .the <mask> of aliens. The Immigration and Naturalization Service as well as its predecessors, it thus follows, may only promulgate rules and regulations, substantive or procedural, which conform to the express statutory criteria enacted by Congress. Consequently, the Naturalization Service may not, under the guise of conducting an “investigation” imposo its views and precepts as to “ character and attachment to the principles of the Constitution.”


For a second point, and apart from the futility of a vain judicial act, I note with particularity that the defendant has made no substantial contention that the sentence first imposed upon him was invalid or inaccurate. Eather he can only contend that the court, as it has herein affirmed, would have made such recommendation if so requested at the time. While the thrust of this argument may somewhat relate to the spirit of remedy in coram nobis, it is surely no basis therefor against the stated word of the statute made mandatory to refute any such contention. Coram nobis is available to those seeking “ to redress an injury done to a defendant which has deprived him of due process of law ”. (Emphasis supplied.) (People v. Sullivan, 3 N Y 2d 196, 198.) The defendant here has his due process available before the Director of Immigration and <mask>. Under such circumstances the remedy in coram nobis will not lie.


As I have previously noted, what is denominated statutorily as a “final hearing” has evolved into a ceremonial occasion — and rightfully so. I note that on the <mask> calendar presented to me that day for the naturalization ceremony some 49 names were listed, together with their former nationalities, some 24 in number. Among those invited to participate were the elected and appointed officials of Rockland County, the American Legion of Rockland County, Veterans of Foreign Wars, Military Order of Purple Heart, Jewish War Veterans, Marine Corps League and Rockland County Amvets. Additionally, among the invitees who appeared by designated representatives were the Daughters of the American Revolution, the Sons of the American Revolution and Girl Scout Troop No. 51. I might also add that at the naturalization ceremonies, the Sheriff and District Attorney of Rockland County were present.


This court concurs with the view expressed in Fryer. As the court there stated, the Federal Youth Corrections Act was aimed at the rehabilitation of young offenders. (See, also, Dorszynski v United States, 418 US 424; United States v Glasgow, 389 F Supp 217.) Its purpose was to provide young people with an opportunity to begin anew without encumbering them with the stigma of a criminal conviction. Certainly, Congress did not intend that the Federal Youth Corrections Act set aside convictions for some purposes but not for others. (United States v Fryer, supra; Mestre Morera v United States Immigration & <mask> Serv., supra.) The words of subdivision (b) of section 5021 of title 18 of the United States Code are clear. Once an individual has been discharged from probation under this section, such discharge automatically sets aside the conviction. Consequently, the defendant’s motion is granted.


A similar question arose in the case of People v. Sweetman, 3 Park. Crim. 358, where it was squarely held that, in a proceeding for <mask> under the laws of the United States, conducted in a State court by the authority of the United States, false swearing was not perjury against the laws of the State. These two cases are in direct conflict, and in so far as either may be applicable by parity of reasoning to the case at bar, the ETew York case must control.


institute an action . . . for a judgment declaring him to be a national of the United States.”). Cranbury Brick Yard, LLC v. United States, 943 F.3d 701, 708 (3d Cir. 2019). Bryan v. United States, 913 F.3d 356, 361 n.10 (3d Cir. 2019) (citation and quotations omitted). Morgan, 432 F.3d at 230 (alteration in original) (quoting 8 U.S.C. § 1432(a)). In greater detail, 8 U.S.C. § 1432(a) provides: (a) A child born outside of the United States of alien parents, . . . becomes a citizen of the United States upon fulfillment of the following conditions: (1) The <mask> of both parents; or (2) The naturalization of the surviving parent if one of the parents is deceased; or (3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents . . . and if (4) Such naturalization takes place while such child is under the age of eighteen years; and


Our Election laws (2 R. S. [Edm. ed.] 128) enact that “ No person shall be deemed to have lost or acquired a residence by being a student in a college, academy or seminary of learning;” and although this provision relates rather to the rights of electors under the State laws, than to the right of <mask> under the Federal laws, it is but a recognition or affirmance of the rule at common law.


Keeping federal preemption in mind, Congress provided in subchapter II (“Immigration”) of chapter 12 (“Immigration and Nationality”) of title 8 (“Aliens and Nationality”) of the United States Code, that any alien (irrespective of status) may apply for political asylum as long as he is physically present in the United States or arrives in this country (see generally 8 USC § 1158 [a]). Although section 1158 (a) does not specifically address whether asylum seekers may work while their applications are processed, Department of Homeland Security regulations require work authorizations be issued during the period that nonfrivolous asylum applications are pending. The regulations are construed to permit work authorizations during the entire time that an asylum application is pending (see 8 CFR 274a. 12 [c] [8]; and generally Alfaro-Orellana v Ilchert, 720 F Supp 792 [ND Cal 1989]). The regulations alleviate economic hardship for aliens who would, without them, be unable to lawfully work pending consideration of their asylum applications (see generally Diaz v Immigration & <mask> Serv., 648 F Supp 638 [ED Cal 1986]). Based upon this regulatory scheme, the court concludes that plaintiff legitimately was employed during the time that he suffered his accident (see generally United States v Bazargan, 992d 844 [8th Cir 1993]).


A very brief analysis of section 1421 et seq. of title 8 of the United States Code — Nationality through Naturalization— reveals that section 1421 confers jurisdiction to naturalize upon the New York State Supreme Court by virtue of its being a court of record and having jurisdiction in actions at law and equity. Sections 1424 and 1425 bar subversives and deserters, respectively, from <mask>, and section 1426 disqualifies those aliens who have been relieved of military service. Subdivision (e) of section 1427 imposes upon the petitioner “ the burden of establishing good moral character ”, and subdivision (f) thereof denies naturalization to one who is an adherent of an organization against whom registration proceedings are pending for registration as subversive. Under section 1429, the burden of proof is imposed upon the petitioner to show that “he entered the United States lawfully and it then proceeds to bar naturalization to any person “ against whom there is outstanding a final finding of deportability pursuant to a warrant of arrest ”, i.e., a Federal warrant. Similarly, if there are deportation proceedings, pursuant to a warrant of arrest pending against the applicant, that, too, precludes naturalization.


In Ramsey (supra) the customs officer spotted eight bulky envelopes mailed from Thailand, a known source of narcotics. It was “reasonable to suspect” therefore, that the letters contained contraband or merchandise subject to duty rather than correspondence. In the case at bar there was nothing suspicious about defendants or the car while crossing the Peace Bridge. The defendants gave their name, address, and citizenship and provided a license and registration as requested. (Cf. People v Baldon, 51 AD2d *108880, 881; People v Jeffries, 45 AD2d 6, 8, affd 38 NY2d 722.) The record is barren of any specific articulable fact from which a reasonable inference could be drawn to warrant the slightest suspicion that defendants were involved in illegal activity. (Terry v Ohio, 392 US 1, 16; Ojeda-Vinales v Immigration & <mask> Serv. 523d 286; United States v Riggs, 474d 699, 703, cert den 414 US 820; United States v Salter, 521d 1326.)


On January 10, 1994, Mejia pleaded guilty to the three crimes. Mejia initialed an immigration advisement on the plea form: "I understand that if I am not a citizen of the United States the conviction for the offense charged may have the consequence of deportation, exclusion from admission to the United States, or denial of <mask> pursuant to the laws of the United States." (Italics added.) The *822prosecution did not sign the plea form (indicating a "straight up" plea to the court). The court granted probation with various conditions, including a 120-day jail sentence.


The People assert that "the trial court determined that [defendant] did not state a prima facie case for relief, among other reasons, because he did not include any declaration in support of his unverified petition, and the allegations he raised were contrary to the record." We disagree. The trial court here did not determine defendant had not stated a prima facie case. Rather, the court denied the motion to vacate because defendant was not present, he had not attached a declaration to his motion, and the plea agreement form stated he was "given the advisal." Although the plea agreement attached to defendant's motion indicates defendant initialed the box next to the statement "I understand that if I am not a citizen of the United States, deportation, exclusion from admission to the United States, or denial of <mask> will result from a conviction of the offense(s) to which I plead guilty/nolo contendere (no contest),"4 we cannot assume defendant was in fact advised of the immigration consequences by his appointed counsel without an adequate record. Moreover, at the June 11, 2018 hearing, after the court noted defendant had been given advisals according to the plea agreement form, defendant's prior public defender, who was present at the hearing and who had declared a conflict, never indicated that he had advised defendant he would be deported as a result of his guilty plea. Under the circumstances here, the trial court's combined errors in failing to consider whether to appoint a conflict panel attorney once the public defender's office had *983declared a conflict and denying the motion without a hearing and without defendant's presence, which have produced a meager record, we reject the People's claim that defendant did not state a prima facie case for relief.


*786criminal defendant who is no longer in 'custody' for purposes of the writ of habeas corpus, can move to withdraw a guilty plea if the trial court accepting the plea, failed to admonish the defendant of the possible immigration consequence of the plea under Penal Code section 1016.5." (Sen. Com. on Public Safety Bill Analysis of AB 813 (2015-2016 Reg. Sess.), July 6, 2015, pp. 8-9, citing *514Zamudio , supra , 23 Cal.4th 183, 96 Cal.Rptr.2d 463, 999 P.2d 686 and People v. Martinez (2013) 57 Cal.4th 555, 565, 160 Cal.Rptr.3d 37, 304 P.3d 529.) The committee's coupling of AB 813 with section 1016.5, its focus on "immigration consequences" in general, and its failure to indicate that AB 813 was limited to removal proceedings further supports the conclusion that the Legislature intended AB 813 to apply to a broad scope of immigration consequences similar to those expressly called out in section 1016.5, i.e., immigration consequences that in addition to removal, such as exclusion from admission and denial of <mask>.


On the other hand, the evidence offered to sustain a last domicile in the county of New York is about as follows: On the 21st of June, 1900, the decedent verified a petition as an applicant for admission to citizenship of the United States of America. In this petition he swore that he emigrated to the Unted States,'landing at the port of New York on the 10th day of July, 1888; that he now resides at No. 55 West Twenty-seventh street, in the city of New York; that he was over twenty-one years of age; that he resided continuously in the United States since July 10, 1888, and continuously within the state of New York since July 10, 1888. An affidavit by one Mr. Edward F. McManus is also attached to the petition, in which he swears that he is a citizen of the United States; that he resides at No. 72 West Eighty-seventh street; that he is a merchant and that he personally knows that the applicant, Tirso Mesa y Hernandez, has resided continuously within the limits and in the jurisdiction of the United States of America since June, 1890, and continuously within the city of New York since June, 1890, and that' during said time of his residence within the United States and within the city he had behaved as a man of good moral character, etc. The petitioner, the deceased, and his witness appeared before Mr. S. H. Lyman, in the United States District Court for the Southern District of New York, and were orally examined and the proofs taken upon this petition. He was then admitted to citizenship by the United States District Court of the Southern District of New York on the 23d day of .Time, 1900. These affidavits upon which the cer*443tificate of citizenship was issued were put in evidence under objection and exception. The testimony in regard to this <mask> discloses that the deceased announced to his wife his intention of taking out naturalization papers while they were living in Cuba in 1899, the year after the war was over, giving as his reason therefor that his property was then in danger; that his home had once been destroyed during the Spanish war, and that as the United States soldiers were still in Cuba he was going to take out American citizenship papers in order to protect his property. He also mentioned the same thing to his son Hannibal in 1900. The testimony also shows that in 1902 Mr. Mesa y Hernandez contributed a substantial sum towards the election expenses of President Estrada Palma of Cuba, and that he expected to receive from him an offer of the position of ambassador or minister of the republic of Cuba to the court of St. James, showing that he still held himself to be a citizen and resident of the republic of Cuba. It also appears that the will of the deceased was executed by him on December 19, 1906, on his way to Cuba from England. It was so executed in the city of New York, and it recites that he “ is a native of Colon, in the Province of Matanzas, Island of Cuba, but now a citizen of the United States, residing and domiciled at the City of New York.” This will created a number of trust funds and provided for the payment of various annuities and legacies, and on several occasions the deceased stated to members of his family that he was aware that its provisions contravened the provisions of the Cuban law as to the right of a person who died leaving children to dispose of his property. It is suggested that this was the reason for stating that the domicile of deceased was in the city of New York, as the validity of the will might depend on the law of New York. In the will decedent named as executors Paul Fuller and Jose M. Andreni, who were not related to him. This last will and testament of the deceased was probated in the county of New York upon the petition of these executors» *444alleging that the deceased died a resident of the county of New York. No objection was made to this probate by the beneficiaries of any party interested, and letters testamentary were accordingly issued by this court on the 29th day of January, 1909, to the executors named in the will. The question of the domicile of the deceased was not put in issue in the probate proceeding, or until the transfer tax proceedings were instituted. It is now argued by the state that all parties in interest in the probate proceeding, having failed to object to the finding that the decedent died a resident of New York county, are bound by that finding.


Clearly, an accused who is deemed to be a young adult offender has been convicted of a crime. The dispute, however, arises over the legal implications of that person’s later being "unconditionally discharged” from probation and having his conviction "set aside.” Although there is no New York authority on the subject, courts in other jurisdictions are divided. In People v Loomis (231 Cal App 594), a California court declared that the defendant had been properly found guilty of the crime of possession of a pistol by one previously convicted of a felony when that prior conviction had been set aside under the Federal Youth Corrections Act. (See, also, People v Robinson, 1 Cal App 3d 555; United States v Canniff, supra, which allowed a conviction under this statute to be used to attack credibility at a later proceeding; Garcia-Gonzalez v Immigration & <mask> Serv., 344d 804; Hernandez-Valensuela v Rosenberg, 304d 639, wherein aliens sentenced under the Federal Youth Corrections Act were held deportable; United States v McMains, 540d 387; Fite v Retail Credit Co., 386 F Supp 1045.)


Article 36 of the Vienna Convention, which discussed the notification of a consulate upon the arrest of a foreign national, clearly does not create any fundamental rights or the right to counsel. (United States v Li, 206d 56; Waldron v Immigration & <mask> Serv., 17d 511, 518.) Indeed, the Treaty’s preamble clearly states that the purpose of the privileges and immunities contained in the Treaty “is not to benefit individuals but to ensure the efficient performance of functions by consular posts.” (Preamble to Vienna Convention, 21 UST 77, 79.) Thus, at most, the Convention “arguably” confers on foreign nationals the right to consular assistance.