Crimes of Moral Turpitude


§ 10.12 C. Judicial Recommendation Against Deportation

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Prior to Nov. 29, 1990, federal immigration law allowed a state or federal criminal sentencing judge, after notice to the INS, the discretion to grant a judicial recommendation against deportation (JRAD) within 30 days of sentence.[159]  Where a JRAD was properly issued by the criminal sentencing court prior to the repeal of the provision authorizing it, the JRAD remains valid and enforceable today despite the repeal of the enabling legislation.[160]


Where a JRAD was not granted prior to Nov. 29, 1990, the Immigration Act of 1990 abolished the sentencing court’s discretion to grant a JRAD.[161]  Thus, the DHS and immigration courts are now precluded from honoring a JRAD issued on or after Nov. 29, 1990.[162]  This repeal has been held valid.[163]  Whether the repeal of the JRAD should or may be construed retroactively to apply with respect to convictions occurring prior to the effective date of the amendment may now be reexamined in light of the retroactivity analysis of the Supreme Court in INS v. St. Cyr.[164]

[159] Former 8 U.S.C. § 1251(b); see, e.g., Janvier v. United States, 793 F.2d 449 (2d Cir. 1986).

[160] 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]).

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

[162] Ibid.

[163] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994) (repeal did not violate separation of powers because no judicial reversal of the JRAD is required; ex post facto clause is not violated because the deportation provision is civil, not criminal); United States v. Koziel, 954 F.2d 831, 834 (2d Cir. 1992) (“A long . . . line of authority has established that statutes retroactively setting criteria for deportation do not violate the ex post facto provision . . . .  We conclude that there is no ex post facto impediment to Congress’s making the abolition of JRADs applicable to convictions for conduct engaged in before the enactment of the repealer.”).  Cf. Probert v. INS, 954 F.2d 1253 (6th Cir. 1992) (judicial recommendation against deportation granted after enactment of 1990 Act repealed the JRAD is ineffectual).

[164] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).



Seventh Circuit

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).
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.).