Crimes of Moral Turpitude

Even now, where a conviction for a crime involving moral turpitude is triggering deportation or inadmissibility, and the sentence date preceded Nov. 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 Nov. 29, 1990.[188]  The Fifth Circuit has also held JRADs properly granted prior to this date continue to be valid and enforceable.[189]

The statute that repealed JRADs did not revoke the authority of JRADs granted before Nov. 29, 1990.  The regulations reflect this view.  8 C.F.R. § 240.10(d) provides:

(d) Issues of removability . . . . 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.

Under United States v. Yacoubian,[190] the JRAD should be effective to eliminate a moral turpitude conviction for removal purposes.[191]  In Yacoubian, the Ninth Circuit held that a JRAD did not defeat the expanded firearm ground of deportability, which was not new in June 1990 when the court granted the JRAD.

Former 8 U.S.C. § 1251(b) provided for a JRAD.  Before it was repealed, it provided:

The provisions of (a)(4) respecting the deportation of a crime or crimes shall not apply (1) in the case of any alien who has subsequent to such conviction been granted a full and unconditional pardon by the President of the United States or by the Governor of any of the several States, or (2) If the court sentencing such alien for such crimes shall make . . . a recommendation to the Attorney General that such alien shall not be deported.

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.

[188] 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, Feb. 4, 1991, reprinted in 68 Interpreter Releases 220 (Feb. 25, 1991).

[189] 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]).

[190] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994).

[191] See also Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) (JRADs issued before repeal of JRAD statute are still effective).