21

                JRADs that have been properly granted by the criminal sentencing judge prior to November 29, 1990 and within 30 days of imposing sentence, are effective to eliminate convictions of crimes of moral turpitude and aggravated felonies as grounds of deportation.[211]  It is important to check criminal court files to discover these valuable orders when they are present.

 

A conviction of a crime of moral turpitude or aggravated felony will not trigger deportation if the criminal sentencing court granted a proper and timely Judicial Recommendation Against Deportation (JRAD) prior to November 29, 1990, when the authorization to grant such orders was repealed. 

 

The effect of a JRAD was to preclude the immigration authorities from deporting or excluding the defendant on the basis of the conviction of a crime involving moral turpitude or aggravated felony in the case in which the JRAD was granted.  The JRAD was effective only as to the specific conviction(s) for which it was granted, and was not effective beyond its terms even as to other convictions suffered in the same criminal case.[212]

 

The JRAD effectively prevents deportation only on the basis of one or more convictions of crimes involving moral turpitude or aggravated felony convictions.[213]  A pardon and a JRAD defeated deportability for removal purposes, under the statute, which in June 1990 included both the moral turpitude and aggravated felony grounds of deportability.  In addition, former 8 U.S.C. § 1251(b) included an exception, but it was for deportability under former 8 U.S.C. 1251(a)(11), the controlled substance ground of deportability.  There was no exception for the aggravated felony ground of deportation.  Therefore, a JRAD avoided deportability on account of an aggravated felony conviction.

 

The statute required the sentencing court to grant the JRAD within thirty days of first passing sentence or entry of judgment, whichever was later.[214]  A later order, pre-dated nunc pro tunc to the earlier first date of sentence, was held ineffective even if the sentencing court, the prosecuting attorney, and defense counsel were previously unaware that the relief was available.[215]

 

                The party challenging the validity of a JRAD bears the burden of proof, as the presumption of regularity favors the validity of the order.[216]  This would be true even in immigration contexts in which the noncitizen bears the burden of proof.

 

Even now, where a conviction for an aggravated felony is triggering deportation or inadmissibility, and the sentence date preceded November 29, 1990, counsel should carefully check the court file to determine whether the sentencing judge granted a JRAD.  If so, the JRAD will still eliminate deportability or inadmissibility based upon the conviction.  The DHS has agreed to honor JRADs that were actually signed by a judge before November 29, 1990.[217]  The Fifth Circuit has also held JRADs properly granted prior to this date continue to be valid and enforceable.[218]  The statute that repealed JRADs did not revoke the authority of JRADs granted before November 29, 1990.  The regulations reflect this view.[219]  The 1990 abolition of the Judicial Recommendation Against Deportation therefore does not invalidate JRADs issued prior to November 29, 1990, the effective date of the legislation.[220]

 

                If a noncitizen was sentenced for an aggravated felony before November 29, 1990, and original defense counsel did not seek a JRAD or obtain a knowing waiver of the defendant’s right to do so, current counsel should investigate the case to determine whether this omission constituted ineffective assistance of counsel, which would provide a ground for vacating the prior conviction and sentence.[221]

 

When ineffective assistance of counsel results in prejudice to a client, the proper remedy is to place the client in the same position s/he would have occupied at the time the error occurred under the law as it existed at that time.[222]  Thus, the proper remedy for ineffective assistance of counsel at sentencing is to give the defendant the sentence s/he would likely have received absent counsel’s error.  Here, the remedy – at a minimum – would be to reopen sentence and grant a fresh sentencing hearing with all possibilities open that were open at the time of the original sentencing.[223]

 

It is important for counsel 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.[224]

 

                For an extended discussion of judicial recommendations against deportation, their immigration effects, the necessary procedure, ineffective counsel for failure to seek them, and retroactivity issues, see N. Tooby, Post-Conviction Relief for Immigrants, § § 8.21-8.37 (2004).

 

[211] Former 8 U.S.C. § 1251(b); see, e.g., Janvier v. United States, 793 F.2d 449 (2d Cir. 1986).    See N. Tooby & J. Rollin, Safe Havens: How To Identify And Construct Non-Deportable Convictions § 4.25 (2005).

[212] Matter of Parodi, 17 I. & N. Dec. 608 (BIA 1980).

[213] Probert v. United States, 737 F.Supp. 1010 (E.D. Mich. 1989) (JRAD available to offender whose aggravated felony controlled substance conviction was on appeal, since only thirty days were allowed within which to seek a JRAD, and by not limiting JRADs only to crimes of moral turpitude, Congress intended court to have an opportunity to determine which aggravated felonies should be the basis for deportation).

[214] United States v. Sanchez-Guzman, 744 F.Supp. 997 (E.D.Wash. 1990) (entry of judgment, not day of sentence, began 30-day period in which district court was required to make JRAD).

[215] Zaitona v. INS, 9 F.3d 432 (6th Cir. 1993) (JRAD issued after initial sentence had been vacated was ineffective, since vacatur was grounded solely on intention to issue belated JRAD); Velez-Lozano v. INS, 463 F.2d 1305 (D.C. Cir. 1972); Klonis v. Davis, 13 F.2d 630 (2d Cir. 1926); Marin v. INS, 438 F.2d 932 (9th Cir.), cert. denied, 403 U.S. 923, 91 S.Ct. 2238 (1971); United States ex rel. Arcara v. Flynn, 11 F.2d 899 (W.D.N.Y. 1926); Ex parte Eng, 77 F.Supp. 74 (N.D.Calif. 1939).

[216] Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all presumptions normally operating in favor of the judgment operate in favor of the validity of a Judicial Recommendation Aagainst Deportation, and the burden is on the government to prove the criminal resentencing was granted solely to enable the court to issue a timely JRAD or else the JRAD would be held effective).

[217] 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 Nov. 29, 1990.”); Memorandum by INS Commissioner Gene McNary, February 4, 1991, reprinted in 68 Interpreter Releases 220 (Feb. 25, 1991).

[218] Renteria-Gonzalez v. INS, 322 F.3d 804 n.5 (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]).

[219] 8 C.F.R. § 240.10(d).

[220] See Kankamalage v. INS, 335 F.3d 858 (9th Cir. July 8, 2003) (1990 regulation, making certain noncitizens categorically ineligible for a discretionary grant of asylum, cannot be applied retroactively to exclude petitioner for consideration for asylum based on his 1988 robbery conviction).

[221] 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 of 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, 746 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 (Ore. 1985) (failure to request JRAD constituted ineffective assistance where conviction triggered deportation); Lyons v. Pearce (Lyons II), 694 P.2d 978 (Ore. 1985) (counsel’s failure to request JRAD does not constitute ineffective assistance where the conviction would not trigger deportability).

[222] See Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000) (where counsel was ineffective for failing to file a suspension application due in 1994, before the stop-time rule of NACARA came into effect in 1997, the proper remedy required use of the deadline in effect in 1994 when the ineffectiveness occurred, to allow timely filing); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

[223] Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled).

[224] 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).

Second Circuit

POST-CON RELIEF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES
Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (judicial recommendations against deportation prevent deportation based upon an aggravated felony conviction as well as convictions of crimes of moral turpitude).

POST-CON - JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES - RETROACTIVITY
Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (deportation may be avoided even as a result of new aggravated felonies, created after repeal of JRAD statute: "[J]ust as respondents may rely on IIRIRA's expanded definition of aggravated felony to argue petitioner's deportability on that ground, petitioner may rely on the same definition to claim JRAD protection from deportation on that ground.").

POST CON RELIEF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION - IMMIGRATION EFFECT - ELIMINATES CMT AND AGGRAVATED FELONY CONVICTIONS AS GROUNDS FOR DEPORTATION
A JRAD prevents deportation on account of an aggravated felony. Nguyen v. Chertoff, 501 F.3d 107, 113 (2d Cir. 2007); Probert v. United States, 737 F.Supp. 1010 (E.D. Mich. 1989) (JRAD available to offender whose aggravated felony controlled substance conviction was on appeal, since only thirty days were allowed within which to seek a JRAD, and by not limiting JRADs only to crimes of moral turpitude, Congress intended court to have an opportunity to determine which aggravated felonies should be the basis for deportation). This is because the JRAD statute stated it prevented deportability under the statute that provided both CMTs and AFs constituted grounds of deportability. (Former INA 237(a)(4).) United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc), does not hold a JRAD does not prevent deportation on account of an AF. Hovsepian was charged with deportability under the firearms and destructive devices grounds, not the aggravated felony ground. The JRAD is effective to prevent deportation on the aggravated felony ground.

The JRAD statute applied both to the moral turpitude and the aggravated felony deportation grounds, in that it waived deportability under former INA 237(a)(4), which included both CMT and AF. (See Nguyen v. Chertoff, 501 F.3d 107, 113 (2d Cir. 2007), and cases cited.) Mr. Nguyen' obtained a JRAD for a CMT that later was retroactively made an aggravated felony. The Second Circuit did not adopt the government's anti-retroactivity argument that the JRAD does not waive the AF conviction because the conviction was not classified as an AF at the time the JRAD was issued. The most extensive discussion of JRADs is found in N. Tooby, J. Rollin & J. Foster, CRIMES OF MORAL TURPITUDE 10.12-10.20 (3d ed. 2008).

Seventh Circuit

POST CON RELIEF " JUDICIAL RECOMMENDATION AGAINST DEPORTATION
Khodja v. Holder, 666 F.3d 415 (7th Cir. Dec. 12, 2011) (immigration authorities may not deport a noncitizen on account of a conviction for which a judicial recommendation against deportation has been granted); see 8 U.S.C. 1251(b)(2) (repealed 1990); following Solis"Chavez v. Holder, 662 F.3d 462 (7th Cir. Oct. 25, 2011).

POST CON RELIEF " JUDICIAL RECOMMENDATION AGAINST DEPORTATION " TIMELINESS
Solis-Chavez v. Holder, ___ F.3d ___, 2011 WL 5041916 (7th Cir. Oct. 25, 2011) (The JRAD was valid. Although it was entered about a month outside the 30"day post-sentencing window, the state-court record confirms that the judge unequivocally indicated her intent to retain jurisdiction for the express purpose of considering a JRAD, and the recommendation was thereafter entered without opposition from immigration authorities or the state prosecutor. The JRAD statute (repealed in 1990) is silent on whether noncompliance with the 30"day time limit is a defect that strips the court of authority to enter the recommendation. Dolan v. United States, 130 S.Ct. 2533 (2010), suggests that the missed deadline does not extinguish the court's authority"at least where, as here, the judge timely announced her intent to consider a JRAD and continued the case for that purpose.).

Ninth Circuit

POST CON - PARDON -STATE PARDON DID NOT ELIMINATE CONVICTION FOR FEDERAL CRIMINAL HISTORY SENTENCE PURPOSES
United States v. Bays, 589 F.3d 1035 (9th Cir. Dec. 17, 2009) (Idaho state pardon of two state controlled substances convictions was ineffective to expunge those convictions under USSG 4A1.2; convictions were properly considered in computing defendant's criminal history score since "Application Note 10 to section 4A1.2 states . . . that previous convictions which are 'set aside or ... pardoned for reasons unrelated to innocence or errors of law' are to be counted. Id. 4A1.2 cmt. n.10."); see United States v. Hayden, 255 F.3d 768, 770 (9th Cir.2001), cert. denied, 534 U.S. 969, 771, 122 S.Ct. 383, 151 L.Ed.2d 293 (2001). The commentary in Application Note 10 is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline."), quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993).

Lower Courts of Ninth Circuit

POST-CON - JUDICIAL RECOMMENDATION AGAINST DEPORTATION
People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008) (agreement of state to JRAD does not constitute an express or implied promise that the conviction will not render the noncitizen deportable; the fact that the federal immigration laws changed retroactively to make 1987 manslaughter conviction deportable as an aggravated felony not sufficient to show that the original 1987 plea agreement had been violated).