Tooby's California Post-Conviction Relief for Immigrants

Where the original conviction occurred prior to November 29, 1990, the effective date of the Immigration Act of 1990, counsel at sentence could have sought a judicial recommendation against deportation (JRAD).  This was a discretionary order entered by the criminal sentencing judge, on motion filed 30 days in advance of sentence with notice to the DHS, that if granted prevented the DHS from using the subject conviction of a crime involving moral turpitude as a basis for deportation, pursuant to former INA § 241(b)(2), 8 U.S.C. § 1251(b)(2).[239]  The former JRAD statute applied both to the moral turpitude and the aggravated felony deportation grounds, and waived deportability under former INA § 237(a)(4).  See § § 10.29, et seq.[240]  

            Since the JRAD has now been abolished, it is not generally possible to seek a JRAD at sentencing at the present time.  However, where a conviction or sentence predating the effective date of its abolition is vacated, on constitutional grounds, the Constitution requires the defendant be placed in the same situation s/he would have occupied absent the constitutional violation.[241]  If this rule is followed, the court would be required to allow the defendant to make a motion for a JRAD under the law in effect at the time of the original sentence.

In People v. Paredes,[242] the court held that the prosecution's agreement to a 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 a 1987 manslaughter conviction deportable as an aggravated felony was not sufficient to show that the original 1987 plea agreement had been violated.

            The court, however, was incorrect in its description of federal law on this issue.  Though United States v. Hovsepian[243] held permissible the retroactive application of the statute eliminating JRADs, a properly-granted JRAD continues to prevent deportation based on a conviction for an aggravated felony or crime of moral turpitude, despite the repeal of the statute.[244]    See § § 10.29, et seq.  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).

[239]  The JRAD has since been eliminated by the Immigration Act of 1990.  See discussion in K. Brady, § 4.7.  See also D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (2001), Appendix G.  The DHS will accept JRADs that were signed by a criminal court judge before November 29, 1990, and litigation might require the DHS to accept JRADs properly obtained when the offense was committed before November 29, 1990.  Because of the ambiguities created by the elimination of the JRAD, counsel should not rely on failure to obtain a JRAD as the sole basis to claim ineffective assistance of counsel.  For example, if this is a first conviction of a moral turpitude offense counsel also can claim that the original trial counsel also should have obtained a sentence of less than one year or six months or less.  If it is a second moral turpitude offense, original counsel also should have advised the client that this offense would make the client deportable and discussed whether to proceed to trial.

[240] See Nguyen v. Chertoff, 501 F.3d 107, 113 (2d Cir. 2007), and cases cited.

[241] Cf. INS v. St. Cyr 533 U.S. 289 (2001) (Congress did not intend by 1996 legislation to alter immigration situation that pertained as of the date the plea was entered. 

[242] 72 Cal.Rptr.3d 867 (2008)

[243] 359 F.3d 1144 (9th Cir. 2004) (en banc).

[244] 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).