Post-Conviction Relief for Immigrants

If the INS received notice of the application for a JRAD, and failed to appeal the order granting the JRAD, it is precluded from later attacking its validity.[114]

The BIA and other circuits have assumed that the BIA may entertain what amount to collateral attacks on final court orders.  See Zaitona v. INS, 9 F.3d 432, 435-36 (6th Cir. 1993); Haller v. Esperdy, 397 F.2d 211, 214-15 (2d Cir. 1968); Matter of P–, 9 I. & N. Dec. 293, 294-95 (Att'y Gen. 1961); cf. Sawkow v. INS, 314 F.2d 34, 36-37 (3d Cir. 1963) (refusing to review criminal court's reasons for vacating alien's first conviction, but reviewing validity of JRAD issued at second sentencing).  Neither party has questioned that assumption, either before the BIA or in their briefs on appeal.  Accordingly, we likewise assume the BIA has such authority.  See United States v. Reyes, 8 F.3d 1379, 1390 (9th Cir. 1993) (ordinarily an issue raised for the first time on appeal is not considered by this court).[115]

This conclusion, however, has been reversed when the issue was actually raised.  It is black letter law that a decision does not stand for a proposition not raised in the proceedings.[116]

            The law is clear that the noncitizen may not collaterally attack a final state court order in a criminal case in immigration proceedings.  The full faith and credit law precludes the INS from doing the same thing.  See § 4.5(c), supra.  Due process requires procedural rules to be applied evenhandedly for and against the government.[117]

[114] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994) (INS failure to appeal JRAD order to Court of Appeals in order to contest district court's finding that noncitizen’s destructive device conviction constituted crime of moral turpitude precluded INS from collaterally attacking that finding in Court of Appeals by challenging contempt order issued to enforce it); Matter of S, 9 I. & N. Dec. 678 (BIA 1962) (law of the case doctrine prevents the INS from moving, seven years after a JRAD had been honored without an appeal by the INS, to reopen, challenging the validity of the JRAD).

[115] Rashtabadi v. INS, 23 F.3d 1562, 1568 n.1 (9th Cir. 1994).

[116] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. denied, 507 U.S. 996, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[117] Wardius v. Oregon, 412 U.S. 470 (1973); Gray v. Klauser, 282 F.3d 633 (9th Cir. 2002) (Idaho deprived petitioner of right to present a defense under Sixth Amendment when trial court used different standard for determining admissibility of hearsay statements from two dead victims. “A state rule or state judge may not without justification impose stricter evidentiary standards on a defendant . . . than it does on the prosecution.”).