Safe Havens

(B) Procedural Requirements.  A motion for a judicial recommendation which was timely received and granted by the court, with notice properly given to the relevant parties, precluded the INS from using the conviction as a basis to charge deportability under former 8 U.S.C. § 1251(a)(4).  A JRAD was honored where the INS had not received the required notice, but did not object on the basis of lack of notice, and presented its position fully.[129]  A JRAD, however, could not lawfully be issued if the procedural requirements were not satisfied.[130]  For example, a JRAD obtained in violation of the notice requirements was ineffective.[131]  The statute required the sentencing court to grant the JRAD within 30 days of first passing sentence or entry of judgment, whichever was later.[132]  A later order, pre-dated nunc pro tunc to the earlier first date of sentence, was held ineffective even if the sentencing court, the prosecuting attorney, and defense counsel were previously unaware that the relief was available.[133]  The courts required that the JRAD actually be signed within the statutory time to be effective.[134]  The time limit was strictly enforced even if the motion was properly filed and the hearing held within the 30 days.  The definition of the judicial action which constitutes “first imposing judgment or passing sentence” was held to be governed by a federal standard.[135]  In Matter of Amesquita,[136] the BIA held that the 30-day time period began to run “. . . at the time the court makes an order with sufficient finality to support a finding of deportability . . . .”  In that case the defendant had been placed on probation in the criminal proceedings, with both entry of judgment and imposition of sentence deferred.  The Board refused to give effect to a JRAD obtained more than 30 days later, holding that the grant of probation was sufficient to begin the 30-day period.[137]

[129] Matter of Ligidakis, 20 I. & N. Dec. 112 (BIA 1989).

[130] Former 8 C.F.R. § 241.1, 55 Fed. Reg., No. 59 (March 27, 1990).

[131] Matter of I, 6 I. & N. Dec. 426 (BIA 1954); Matter of Plata, 14 I. & N. Dec. 462, 463 (BIA 1973). But see Matter of Ligidakis, 20 I. & N. Dec. 112 (BIA 1989) (due notice had been afforded to the INS when the INS had actual notice prior to the proceeding and did not interpose an objection based upon insufficient preparation time but instead presented its position on the merits); Cerujo v. INS, 570 F.2d 1323 (7th Cir. 1978) (failure to give notice to the INS was not fatal where the sentencing court was still inclined to grant a JRAD and would give the INS an opportunity to be heard); Haller v. Esperdy, 397 F.2d 211 (2d Cir. 1968) (where the sentencing court assumed the responsibility of serving the INS and failed to do so, the lack of notice did not nullify the effect of the JRAD).

[132] United States v. Sanchez-Guzman, 744 F.Supp. 997 (E.D.Wash. 1990) (entry of judgment, not day of sentence, began 30-day period in which district court was required to make JRAD).

[133] Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993) (JRAD issued after initial sentence had been vacated was ineffective, since vacatur was grounded solely on intention to issue belated JRAD); Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972); Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926); Marin v. INS, 438 F.2d 932 (9th Cir.), cert. den., 403 U.S. 923, 91 S.Ct. 2238 (1971); United States ex rel. Arcara v. Flynn, 11 F.2d 899 (W.D.N.Y. 1926); Ex parte Eng, 77 F.Supp. 74 (N.D.Calif. 1939).

[134] Matter of Tafoya-Gutierrez, 13 I. & N. Dec. 342 (BIA 1969).

[135] United States ex rel. Piperkoff v. Esperdy, 267 F.2d 72 (2d Cir. 1959).

[136] Matter of Amesquita, 16 I. & N. Dec. 318 (BIA 1977).

[137] See 18 U.S.C. § 3561. See also Matter of Ozkok, 19 I. & N. Dec. 546 (BIA 1988).