Criminal Defense of Immigrants

Although Judicial Recommendations Against Deportation may no longer be granted, those properly issued prior to November 29, 1990, when the JRAD statute was repealed,[126] are still being honored.[127]  If defense counsel failed to request a JRAD when the JRAD legislation was still in effect, s/he rendered ineffective assistance of counsel, and the invalid judgment and sentence can be set aside.[128]  If the sentencing court now grants a JRAD, nunc pro tunc as of the date of the original sentence, prior to November 29, 1990, there is an argument that the immigration authorities must honor the new JRAD.  See § 11.21, infra.

It is important for counsel, if possible, to offer the criminal court a ground of invalidity of the original conviction or sentence that is separate from the goal of obtaining an opportunity to receive a timely JRAD.[129]

[126] See Immigration Act of 1990, Pub. L. No. 101-649, § § 505, 602(b), 104 Stat. 4978, 5081.

[127] 8 C.F.R. § 240.10(d) (“The alien shall provide a court certified copy of a Judicial Recommendation Against Deportation (JRAD) to the immigration judge when such recommendation will be the basis of denying any charge(s) brought by the Service in the proceedings against the alien.  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.”); Memorandum by INS Commissioner Gene McNary, February 4, 1991, reprinted in Interpreter Releases, February 25, 1991, p. 220; Rentería-González v. INS, 322 F.3d 804 (5th Cir. Nov. 11, 2002).

[128] 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).

[129] See United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348 U.S. 840 (1954) (dissenting opinion); United States v. Sambro, 454 F.2d 918, 924-27 (D.C. Cir. 1971) (dissenting opinion).