Fifth Circuit

POST-CONVICTION RELIEF - JRADS ISSUED BEFORE IMMACT90 REMAIN EFFECTIVE - RENTERIA INCORRECT ON THIS POINT
Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. Feb. 27, 2003) (amending opinion on denial of rehearing) ("[P]re-enactment JRAD's remain effective. Thus, the INS could not have deported Renteria-Gonzalez for the offenses specified in the JRAD even after enactment of the [Immigration] Act [of 1990 which abolished future grants of JRADs]).
Argument Against Renteria:      The Renteria panel misconstrued section 505 of the Immigration Act of 1990, Pub. L. No. 101-649, 505, 104 Stat. 4978, 5050 (1990) ("1990 Act") as rescinding all JRADs. Cf. Renteria, supra, at *11. Section 505(b) provides, to the contrary, EFFECTIVE DATE. The amendments made by subsection (a) [repealing the JRAD provision] shall take effect on the date of the enactment of this Act [November 29, 1990] and shall apply to convictions entered before, on, or after such date.      We do not dispute that "it is well settled that Congress has the authority to make past criminal activity a new ground for deportation." Ignacio v. INS, 955 F.2d 295, 298 (5th Cir. 1992) (citations omitted). See also United States v. Bodre, 948 F.2d 28, 32 (1st Cir. 1991), cert. denied, 503 U.S. 941 (1992). However, Congress’ use of plain language referring to convictions, not JRADS, entered before, on or after the 1990 Act, must control. Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330 (1978)(reiterating that the starting point in construing a statute is the language itself); United States v. Wong Kim Bo,472 F.2d 720, 722 (5th Cir. 1972) (per curiam) ("words are to be given their natural, plain, ordinary and commonly understood meaning unless it is clear that some other meaning was intended").      The express language in section 505(b) of the 1990 Act makes the amendment repealing JRADs applicable retroactively to convictions. This reading is underscored by both 8 C.F.R. 240.10(d) of the removal regulations and 240.48(c) of the regulations applicable to deportation proceedings commenced prior to April 1, 1997, in which the Attorney General has provided expressly that,      The alien shall provide a court certified copy of a Judicial Recommendation Against Deportation (JRAD) to the immigration judge when the recommendation shall be the basis of denying any charges brought by the Service. . . . No JRAD is effective against a charge of deportability under former section 241(a)(11) of the Act, or if the JRAD was granted on or after November 29, 1990. Id. (emphasis added). These regulations plainly recognize the repealer, but authorize giving effect to a JRAD granted prior to November 29, 1990.[FN1] [FN1] See also Kurzban, Immigration Law Sourcebook, 8th Ed. (2002), at 150 (citing INS ImmAct Wire No. 5, McNary, Comm, (Nov. 28, 1990)); Legomsky, Immigration and Refugee Law and Policy, 3d Ed. (2002), at 537.      The regulations clearly reflect the view of the agency that the repealer did not rescind all JRADs.[FN2] [FN2] It should go without saying that the INS is bound by such regulations. 8 U.S.C. 1103(a)(3). But cf. Resp. Br. at 17 (arguing both that the JRAD was ineffective because it did not apply to the grounds charged for Renteria-Gonzalez’ deportation, and because the statute was repealed before he was charged with being deportable).      Similarly, none of the out-of-circuit decisions cited by the panel stand for the proposition that a pre-November 29, 1990 JRAD is no longer effective. Cf. Renteria, supra, at *12, n. 5. The cited decisions involve two cases, United States v. Bodre, supra, and United States v. Koziel, 954 F. 2d 831 (2d Cir. 1992), in which a defendant sought a JRAD after November 29, 1990, arguing that it should be available to a pre-November 1990 conviction, and one case, United States v. Yacoubian, 24 F. 3d 1 (9th Cir 1994), in which deportability was charged on a ground of deportability independent of the conviction for which a JRAD previously had been issued.      Bodre v INS, supra, involved a defendant who had been convicted before November 29, 1990 and was awaiting a ruling on a JRAD that had been filed on November 26, 1990. In rejecting Bodre’s argument that, as applied to crimes committed before the effective date, the repealer violated the Constitutional prohibition of ex post facto laws," id. at 33, the First Circuit ruled that section 505 "repealed the sentencing judge’s power to issue JRADs," and "applied ‘to convictions entered before. . .’ November 29, 1990." Id. at 30 (emphasis added). United States v. Koziel, supra, involved the denial of JRADs where the provision was repealed after the aliens' criminal conduct occurred, but before they pled guilty and were sentenced. Id. The Second Circuit ruled that "there is no ex post facto impediment to Congress's making the abolition of JRADs applicable to convictions for conduct engaged in before the enactment of the repealer." Id. at 834-35 (emphasis added). Likewise, in United States v. Yacoubian, supra, the Ninth Circuit recognized that "under the JRAD and the law at the time of the JRAD's issuance in 1989, the defendant would not have been deportable based upon any of his convictions," id. at 7-8 (finding that "deportation was sought on grounds different from those as to which the JRADs were effective."). The Fifth Circuit appears to have previously understood that the language in section 505 related to convictions, not JRADs, entered before, on and after November 29, 1990. See Ignacio v. INS, supra, at 298 (comparing the retroactive language eliminating an automatic stay for aliens having aggravated felony convictions to the similar language relating to convictions in section 505). Moreover, in United States v. Castro, 26 F.3d 557, 558, reh’g denied, 38 F.3d 759, (5th Cir. Tex. 1994), the Fifth Circuit remanded an ineffective assistance of counsel claim relating to a 1984 failure to seek a JRAD, finding that Castro "was entitled to have the sentencing court consider a JRAD," and that "there is a reasonable probability that such relief would have been granted if a request had been made." Id. at 562-63.      It cannot be the case that the Fifth Circuit previously viewed section 505 as rescinding all JRADS or there would have been little purpose to its reversing and remanding in Castro. Since that time, the court has not indicated a different view in the JRAD context. United States v. Flores-Ochoa, 139 F.3d 1022, (5th Cir. Tex. 1998) (distinguishing United States v. Castro because it was based on a "specific statutory option" and on the strength of the case on its merits).      In sum, the panel misapprehended the retroactive effect of section 505, which applies expressly to convictions entered prior to the November 29, 1990 effective date of the 1990 Act, not to JRADs. Cf. Renteria, supra, at *11-12. A timely issued JRAD covers aggravated felony convictions under 8 U.S.C. 1252(a)(2)(A)(iii) and precludes reliance on the conviction at issue as a basis for deportability or inadmissibility. Bodre v. INS, supra, at 30 ("[b]efore November 29, 1990, a convicted alien could seek relief from Section 1251(a)(2)(A)(iii)'s mandatory deportation requirement by seeking a JRAD under 8 U.S.C. 1251(b)(2)"). See also United States v. Probert, 737 F. Supp. 1010, 1012 (E.D. Mich. Nov 15, 1989). Similarly, a conviction that is the subject of a pre-November 29, 1990 JRAD would not bar judicial review under either the temporary or the permanent rules, which apply only where an alien is deportable by reason of having committed a covered offense. IIRIRA 304(C)(4)(G), 8 U.S.C. 1252(a)(2)(C) (emphasis added).[FN3] [FN3] See also Probert v. INS, 954 F. 2d 1253, 1255 (6th Cir. 1992) (reasoning that a 1989 JRAD preventing the INS from deporting Probert based on his drug conviction, also precluded mandatory detention under either version of 8 U.S.C. 1252(a)(2))      Accordingly, the panel discussion indicating that the retroactive effect of the language in section 505 extends to JRADs granted before November 29, 1990, and that all JRADs are rescinded, must be corrected. THIS IS FROM RENTERIA AMICUS PETITION FOR REHEARING