Post-Conviction Relief for Immigrants

(D)  Consideration of Conviction in Discretionary Decision.  The Third Circuit held the JRad also prevented the conviction from being taken into account in the discretionary decision whether to grant relief.[74]  This rule, however, was rejected by the BIA, which holds to the contrary everywhere in the country except the Third Circuit.[75]  Two other circuits expressly disapproved of the Third Circuit rule.[76]

[74] Giambanco v. INS, 531 F.2d 141 (3d Cir. 1976).

[75] Matter of Gonzalez, 16 I. & N. Dec. 134 (BIA 1977) (immigration judge could consider the conviction in reaching a discretionary decision, even though a JRAD had been granted as to that conviction, and even though the charge of deportability was based on an overstay, rather than the CMT conviction itself); Matter of Mangabat, 14 I. & N. Dec. 75 (BIA 1972), aff'd, 477 F.2d 108 (9th Cir.), cert. denied, 414 U.S. 841 (1973). See also United States v. DeParias, 631 F.Supp. 1530 (S.D.N.Y. 1986) (JRAD not warranted in all cases).

[76] Delgado-Chavez v. INS, 765 F.2d 868, 869-870 (9th Cir. 1985) (immigration court can consider CMT conviction in reaching discretionary decision concerning voluntary departure, despite JRAD, since statute limits JRAD’s effects to deportation on account of a CMT conviction); Oviawe v. INS, 853 F.2d 1428 (7th Cir. 1988) (holding that notwithstanding judicial recommendation against deportation, board can consider noncitizen’s prior moral turpitude convictions as adverse discretionary factor in adjudicating noncitizen’s motion to reopen in order to apply for adjustment of status).