Post-Conviction Relief for Immigrants

The JRAD effectively prevented deportation only on the basis of one or more convictions of crimes involving moral turpitude,[64] or aggravated felony convictions.[65]  It was completely ineffective, however, as to controlled substance convictions.[66]  It did not eliminate deportability on account of a firearms conviction.[67]  A JRAD was ineffective to bar deportation if any ground of deportation, other than one for which a JRAD was effective, was alleged against the noncitizen.[68]

[64] See N. Tooby & J. Foster, Crimes of Moral Turpitude [19] (2002).

[65] Former 8 U.S.C. § 1251(b) provided for a JRAD.  Before the repealer, it stated: “The provisions of (a)(4) respecting the deportation of a crime or crimes shall not apply 1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, or 2) If the court sentencing such alien for such crimes shall make . .  . a recommendation to the Attorney General that such alien shall not be deported . . . .”  A pardon and a JRAD defeated deportability for the provisions of (a)(4), which in June 1990 included both the moral turpitude and aggravated felony grounds of deportability.  In addition, former 8 U.S.C. § 1251(b) did include an exception, but it was for deportability under former 8 U.S.C. § 1251(a)(11), the controlled substance ground of deportability.

            The Sixth Circuit recognized that a JRAD defeated deportability under the aggravated felony ground.  See Probert v. INS, 954 F.2d 1253 (6th Cir. 1992) (holding that the provision requiring the AG to detain a noncitizen deportable for an aggravated felony conviction did not apply to a noncitizen who had a JRAD for his aggravated felony conviction because he was not deportable under the aggravated felony ground).  A recent BIA case involving pardons also supports by analogy the availability of a JRAD for the aggravated felony ground.  Congress moved the pardon provisions from former 8 U.S.C. § 1251(b) to 8 U.S.C. § 1237(a)(2)(A)(v).  The pardon statute now forgives the deportation grounds in 8 U.S.C. § 1227(a)(2), which is where Congress moved the moral turpitude and aggravated felony grounds of deportability that had previously been codified under former 8 U.S.C. § 1251(a)(4).  The same express exception for controlled substance deportability remains in the statute.  Probert v. United States, 737 F.Supp. 1010 (E.D. Mich. 1989) (JRAD available to offender whose aggravated felony controlled substance conviction was on appeal, since only thirty days was allowed within which to seek a JRAD, and by not limiting JRADs only to crimes of moral turpitude, Congress intended court to have an opportunity to determine which aggravated felonies should be the basis for deportation).

[66] Former 8 U.S.C. § 1251(b).

[67] United States v. Quintana, 914 F.2d 1409 (10th Cir. 1990) (statute that provides for a binding recommendation by a judge against deportation did not apply to an alien who pled guilty to possession of a sawed-off shotgun, which was not a crime involving moral turpitude).

[68] See Jew Ten v. INS, 307 F.2d 832 (9th Cir. 1962); United States v. George, 534 F.Supp. 570 (S.D.N.Y. 1982) (criminal court lacked jurisdiction to grant JRAD, since INS had lodged deportation charge of overstaying a visa, rather than for conviction of crime of moral turpitude); Matter of Corral-Fragoso, 11 I. & N. Dec. 478 (BIA 1966).