Post-Conviction Relief for Immigrants

The statute required the sentencing court to grant the JRAD within thirty days of first passing sentence or entry of judgment, whichever was later.[83]  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 had previously been unaware that the relief was available.[84]

The courts required that the JRAD actually be signed within the statutory time to be effective.[85]  The time limit was strictly enforced even if the motion was properly filed and the hearing held within the thirty days.  The definition of the judicial action which constitutes “first imposing judgment or passing sentence” was held to be governed by a federal standard.[86]  In Matter of Amesquita,[87] 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 thirty days later, holding that the grant of probation was sufficient to begin the thirty-day period.[88]

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

[84] 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. denied, 403 U.S. 923, 91 S.Ct. 2238, 29 L.Ed.2d 702 (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).

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

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

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

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