Post-Conviction Relief for Immigrants

If a noncitizen was sentenced for a crime involving moral turpitude or aggravated felony before November 29, 1990, and original defense counsel did not seek a JRAD or obtain a knowing waiver of the defendant’s right to do so, current counsel should investigate the case to determine whether this omission constituted ineffective assistance of counsel, which would provide a ground for vacating the prior conviction and sentence.[89]

A criminal defendant has a Sixth Amendment right to counsel at all critical stages of the prosecution where his substantial rights may be affected, including the sentencing stage.[90]  In Janvier v. United States, the Second Circuit found that the legislative history of 8 U.S.C. § 1251(b) indicated that Congress wished to incorporate the application for a JRAD as part of the sentencing procedure.[91]  “The court concluded that the procedural limitations imposed by Congress, including that the JRAD must be issued by the sentencing judge, within thirty days of first imposing sentence, supported this interpretation.  The one Senate report notes that the JRAD proviso was added on the floor of the House the ‘obvious purpose of which’ being to allow the criminal court to recommend that ‘deportation be not effected after the sentences has been issued.’ S. Rep. No. 352, 64th Cong. 1st Sess. 15 (1916).  The House debate reflected Congress’ view that deportation was essentially part of the penalty for conviction of serious crimes and wished to provide a mechanism allowing the criminal court to lessen that harsh result. 53 Cong. Rec. 5165, 5169-74.  The debate limiting issuance of the JRAD to the time of first imposition of sentence or within thirty days thereafter further supported treatment of the request for and issuance of a JRAD as part of the sentencing stage of prosecution, as it indicated concern that the decision be made by the trial court judge at the time he is most familiar with the facts of the case, i.e., at the time he first imposed sentence.  Id. at 5170-71.  Further, the court concluded that to the extent any ambiguity existed concerning Congress’ intent, any doubt should be resolved in favor of providing the alien as much protection as possible.”[92]

The Janvier court held that only a valid sentence triggered the 30-day period within which an effective JRAD could be granted.[93]  A court cannot impose a valid sentence if counsel renders ineffective assistance.[94]  Therefore, the sentence imposed after the invalid sentence was vacated must be considered the first valid sentence which begins the running of the 30-day period.

[89] See, e.g., United States v. Castro, 26 F.3d 557 (5th Cir. 1994) (motion for JRAD was part of sentencing process to which Sixth Amendment protections applied, and defendant made sufficient showing of actual prejudice to support claim for ineffective assistance of counsel); Janvier v. United States, 793 F.2d 449 (2d Cir. 1986); cf. Trench v. INS, 783 F.2d 181 (10th Cir. 1986) (no prejudice resulting from lack of counsel who might seek JRAD); Ittah v. United States, 761 F.Supp. 157 (D.Me. 1989); People v. Barocio, 216 Cal.App.3d 99, 264 Cal.Rptr. 573 (1989) (failure to advise defendant regarding JRAD constitutes ineffective assistance of counsel); People v. Pozo, 749 P.2d 523 (Colo. 1987); People v. Soriano, 194 Cal.App.3d 1470, 240 Cal.Rptr. 328 (1987); Lyons v. Pearce (Lyons I), 694 P.2d 969 (Or. 1985) (failure to request JRAD constituted ineffective assistance where conviction triggered deportation); Lyons v. Pearce (Lyons II), 694 P.2d 978 (Or. 1985) (counsel’s failure to request JRAD does not constitute ineffective assistance where the conviction would not trigger deportability).

[90] Janvier v. United States, 793 F.2d 449 (2d Cir. 1986), citing Mempha v. Rhay, 389 U.S. 128, 134 (1967).

[91] Id. at p. 455.

[92] Appendix G, Judicial Recommendations Against Deportation Prior To November 29, 1990, D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes, p. G-11 n. 22.2 (Nat’l Lawyers Guild, Nat’l Imm. Project, West Group, 2001), citing Janvier v. United States, 793 F.2d 449 (2d Cir. 1986), citing Delgadillo v. Carmichael, 332 U.S. 388 (1947).

[93] Sawkow v. INS, 314 F.2d 34, 37 (3d Cir. 1963); cf. Piperkoff v. Esperdy, 267 F.2d 72, 74 (2d Cir. 1947).

[94] Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052 (1984).