Post-Conviction Relief for Immigrants

The former regulation governing the issuance of JRADs provided:

[a] For the purposes of clause 2 of section 241[b] of the Act, notice of the district director having administrative jurisdiction over the place in which the court imposing sentence is located shall be regarded as notice to the Service.  The notice shall be transmitted to the district director by the defendant or by counsel for the defendant not less than 15 days prior to the date on which the court will hear the defense motion for a judicial recommendation against deportation.  When less than 15 days notice is received, an objection shall be interposed to the recommendation against deportation on the ground that due notice was not received.  If the notice is received after the running of the 30-day statutory period, it shall be regarded as an invalid notice.  Failure to furnish due notice for any reason shall constitute a waiver by the alien of the introduction of a judicial recommendation against deportation into evidence, and of any reference to such judicial recommendation before a special inquiry officer.  The notice to the district director shall include the following: (1) The true and complete name of the defendant; (2) The full name of the defendant as known to the court; (3) The full name of the defendant as known to the Immigration and Naturalization Service; (4) Any aliases by which he or she has been known or has himself or herself used; (5) Date of birth; (6) Place of birth including country; (7) Country of citizenship; (8) Alien registration numbers(s), if any; (9) Date, place and manner by which he or she last entered the United States.  The manner of entry will include where applicable, the vehicle, vessel, or aircraft used to arrive in the United States; (10) Crime(s) for which defendant is being sentenced; (11) Statute(s) under which the defendant is being sentenced; (12) If already sentenced, or if the subject of a plea bargain, amount of time imposed to be incarcerated; (13) Whether the sentence renders the crime a felony, misdemeanor, petty offense, or undesignated crime under sentencing authority definition; (14) A court certified copy of the presentence report; (15) Date and time of sentencing; (16) A statement of the defendant's criminal convictions listing the sentencing jurisdiction and the information requested in paragraphs (a)(10), (11), and (12) of this section.  Former 8 C.F.R. §   241.1, Fed. Reg. Vol. 55, No. 59 (March 27, 1990).

A JRAD obtained after March 27, 1990, in violation of the notice requirements was ineffective.[82]  The validity of JRADs granted earlier is not affected by this regulation.

[82] 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).