Post-Conviction Relief for Immigrants

Where a judgment of conviction and sentence has been vacated, the new sentencing counts as the “time of first imposing judgment” under the statute, and a JRAD issued within 30 days of that time was effective.  If a conviction or sentence was vacated for the sole purpose of enabling the court to issue a JRAD, that was not timely granted, a JRAD issued at the time of resentencing was not considered timely or effective.[95]  The court went on to hold that all the presumptions normally operating in favor of the judgment operate in favor of the validity of the JRAD, and the burden is on the immigration authorities to prove the resentencing was granted solely to enable the court to issue a timely JRAD.  If a conviction is vacated on constitutional grounds, and the original sentence occurred prior to November 29, 1990, when the sentencing court still retained jurisdiction to grant a JRAD, a new JRAD should be sought nunc pro tunc backdated to the date of the original sentencing.  Then, the immigration authorities should honor it, since (if the original proceeding had been constitutional) it would have been timely issued prior to the effective date of the Immigration Act of 1990, and the INS would be required by equal protection principles to honor it as it honored other pre-1990 JRADs.[96]

The courts disagreed as to whether a JRAD obtained after the guilty plea has been vacated, and a new conviction entered, was effective to block deportation or exclusion.  The Second Circuit, in United States ex rel. Piperkoff v. Esperdy,[97] held that the JRAD was ineffective where the “sole basis for the vacation and reentry of judgment is to repair the omission to make the statutory recommendation against deportation.”  The court stated that Congress inserted the language, “first imposing judgment or passing sentence,” in the statute to ensure that strict procedural guidelines would be followed.  The court stated that a noncitizen should not be allowed to evade this intent by vacating the plea and obtaining a fresh sentence, or the congressional purpose would be frustrated.  One court denied a motion to vacate a guilty plea to allow the defendant an opportunity to obtain a JRAD, concluding that the JRAD would be ineffective, since it would not have been obtained within thirty days of the first sentencing.[98]

On the other hand, the Third Circuit held that a JRAD obtained after a guilty plea had been vacated, and a new judgment entered, was valid.[99]  The court stated: “Obviously, Congress by the use of the phrase ‘at the time of first imposing judgment or passing sentence’ was referring to a valid sentence.”[100]  The BIA agreed generally with Piperkoff, but held the record should be reviewed to see whether there was some ground to vacate the plea other than the desire to obtain a valid JRAD.[101]  The inquiry was not whether the noncitizen’s sole purpose in vacating the conviction and obtaining a new sentence was to obtain a valid JRAD, but whether this was the trial court’s sole reason for vacating the conviction.  If the court had other grounds to reopen the case, the JRAD would be honored.[102]

[95] Matter of P, 9 I. & N. Dec. 293, 294-295 (AG 1961); Rashtabadi v. INS, 23 F.3d 1562, 1568 n.1 (9th Cir. 1994).

[96] Cf. Garberding v. INS, 30 F.3d 1187 (9th Cir. 1994).

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

[98] People v. Borja, 178 Cal. Rptr. 287 (1981).  See also Matter of P, 8 I. & N. Dec. 689 (BIA 1960) (judicial recommendation against deportation held not timely when made upon resentencing on October 2, 1959, following retrial as result of coram nobis proceedings alleging respondent did not comprehend the nature of the complaint when he originally pleaded guilty to disorderly conduct on March 19, 1959; respondent again pleaded guilty at new trial; hence, sole purpose was to obtain recommendation against deportation not previously made), overruled by Matter of P, 9 I. & N. Dec. 293 (BIA 1961); Matter of L, 8 I. & N. Dec. 389 (BIA 1959) (judicial recommendation against deportation, to be valid, must be made at first sentence, and opportunity cannot be extended or revived five years later by order granting new trial and imposition of new sentence, where the revoked order was not void or irregular, but had been entered in compliance with the law).

[99] Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).

[100] Id. at 37 (emphasis supplied).

[101] Matter of P, 9 I. & N. Dec. 293 (BIA 1961); Matter of S, 9 I. & N. Dec. 613 (BIA 1962), reversed on other grounds by Sawkow v. INS, 314 F.2d 34 (3d Cir. 1963).  See also Bruno v. United States, 336 F.Supp. 204 (W.D. Mo. 1971).  Compare Matter of Sirhan, 13 I. & N. Dec. 592 (BIA 1970) (effect to be given vacation of judgment).

[102] Matter of P, 9 I. & N. Dec. 293 (BIA 1961); cf. Matter of S, 9 I. & N. Dec. 688 (BIA 1962) (BIA gave effect to a JRAD obtained after a guilty plea had been set aside, where the defendant had thought he was a United States citizen and the sole basis of the vacation of plea was to allow a JRAD; however, the holding was most likely limited to the facts of that case).