Because the criminal sentencing hearing, the only proceeding at which a JRAD may be granted, forms part of a criminal case, there is an excellent argument that the ex post facto clauses of the United States Constitution should forbid denial of an effective JRAD in a case in which the criminal offense occurred prior to November 29, 1990.[109]

 

It is true that the Supreme Court held that the United States Constitution’s ban on ex post facto laws does not apply to civil immigration proceedings, only to criminal proceedings.[110]

Moreover, this principle seems to be well entrenched at this point:

A long and constant line of precedent establishes that statutes retroactively setting criteria for deportation do not violate the ex post facto clause.  Domond v. U.S. INS, 244 F.3d 81, 87 (2d Cir. 2001); e.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 98 L.Ed. 911 (1954) (“And whatever might have been said at an earlier date for applying the ex post facto clause, it has been the unbroken rule of this Court that it has no application to deportation.”); United States v. Koziel, 954 F.2d 831, 834-35 (2d Cir. 1992) (collecting decisions).  The ex post facto clause protects against the retroactive application of penal legislation.  Deportation is a civil, not a criminal, proceeding.  See Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 96 L.Ed. 586 (1952).[111]

 

Nonetheless, since deportation as a result of a criminal conviction can fairly be called punishment, and since the JRAD is granted, or withheld, during a criminal sentencing proceeding, the ex post facto argument should prevail.[112] 

 

In . . . the cases in which the Supreme Court has held that the ex post facto clause did not apply to deportation proceedings were cases involving deportation grounds, over which the sentencing judge had no authority.[footnote 8 omitted]  This is different from the instant case because it involves the application of an ex post facto law to JRADs, which are part of the criminal sentencing process, and not grounds for deportation.[113]

[109] United States v. Shaibu, 957 F.2d 662 (9th Cir. 1992) (ruling on motion for judicial recommendation against deportation is final appealable decision because it is integral part of sentencing process), citing Janvier v. United States, 793 F.2d 449, 452-54 (2d Cir. 1986).

[110] Fleming v. Nestor, 363 U.S. 603 (1960); Galvan v. Press, 347 U.S. 522 (1954); see also United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994) (discussion of inapplicability of ex post facto clauses to civil immigration proceedings).  Moreover, the First and Second Circuits have rejected the ex post facto argument.  United States v. Bodre, 948 F.2d 28 (1st Cir. 1991), cert. denied, 503 U.S. 941, 112 S.Ct. 1487, 117 L.Ed.2d 628 (1992); United States v. Koziel, 954 F.2d 831, 834-35 (2d Cir. 1992).

[111] Kuhali v. Reno, 266 F.3d 93, 111-112 (2d Cir. 2001).

[112] See Pauw, A New Look At Deportation As Punishment: Why At Least Some Of The Constitution's Criminal Procedure Protection Must Apply, 52 Admin. L. Rev. 305 (2000).

[113] United States v. Bodre, 948 F.2d 28, 37-38 (1st Cir. 1991), cert. denied, 503 U.S. 941, 112 S.Ct. 1487, 117 L.Ed.2d 628 (1992) (Bownes, J., dissenting, makes excellent argument for application of ex post facto clause to JRADs).

Second Circuit

EX POST FACTO - CONTROLLING DATE - LAST DATE OF THE OFFENSE ALLEGED IN THE CHARGE
United States v. Broderson, 67 F.3d 452 (2d Cir. 1995); U.S.S.G. 1B1.11(b), comment (n.2) (for Ex Post Facto purposes, controlling date is the last date of the offense, as alleged in indictment).