Crimes of Moral Turpitude


§ 10.19 7. The Government May Not Collaterally Attack a JRAD

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If the INS received notice of the application for a JRAD, and failed to appeal the order granting the JRAD, it is precluded from later attacking its validity.[220]


The BIA and other circuits have assumed that the BIA may entertain what amount to collateral attacks on final court orders. See Zaitona v. INS, 9 F.3d 432, 435-36 (6th Cir. 1993); Haller v. Esperdy, 397 F.2d 211, 214-15 (2d Cir. 1968); Matter of P---, 9 I. & N. Dec. 293, 294-95 (Att’y Gen. 1961); cf. Sawkow v. INS, 314 F.2d 34, 36-37 (3d Cir. 1963) (refusing to review criminal court’s reasons for vacating alien’s first conviction, but reviewing validity of JRAD issued at second sentencing).  Neither party has questioned that assumption, either before the BIA or in their briefs on appeal. Accordingly, we likewise assume the BIA has such authority. See United States v. Reyes, 8 F.3d 1379, 1390 (9th Cir. 1993) (ordinarily an issue raised for the first time on appeal is not considered by this court).[221]


This conclusion, however, has been reversed when the issue was actually raised.  It is black letter law that a decision does not stand for a proposition not raised in the proceedings.[222]


The law is clear that the noncitizen may not collaterally attack a final state court order in a criminal case during immigration proceedings.  The full faith and credit law precludes the DHS from doing the same thing.  Due process requires procedural rules to be applied evenhandedly for and against the government.[223]  The Fifth Circuit has held that the DHS cannot collaterally attack in immigration proceedings a state court judgment affording post-conviction relief.[224]

[220] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994) (INS failure to appeal JRAD order to Court of Appeals in order to contest district court’s finding that noncitizen’s destructive device conviction constituted crime of moral turpitude precluded the INS from collaterally attacking that finding in Court of Appeals by challenging contempt order issued to enforce it); Matter of S, 9 I. & N. Dec. 678 (BIA 1962) (law of the case doctrine prevents the INS from moving, seven years after a JRAD had been honored without an appeal by the INS, to reopen, challenging the validity of the JRAD).

[221] Rashtabadi v. INS, 23 F.3d 1562, 1568 n.1 (9th Cir. 1994).

[222] R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992) (“It is of course contrary to all traditions of our jurisprudence to consider the law on [a] point conclusively resolved by broad language in cases where the issue was not presented or even envisioned”); United States v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992) (precedent not controlling on issue not presented to prior panel), cert. den., 507 U.S. 996, 113 S.Ct. 1611, 123 L.Ed.2d 172 (1993); United States v. Faulkner, 952 F.2d 1066, 1071 n.3 (9th Cir. 1991) (same); DeRobles v. INS, 58 F.3d 1355 (9th Cir. 1995).

[223] Wardius v. Oregon, 412 U.S. 470 (1973); Gray v. Klauser, 282 F.3d 633 (9th Cir. 2002) (Idaho deprived petitioner of right to present a defense under Sixth Amendment when trial court used different standard for determining admissibility of hearsay statements from two dead victims). “A state rule or state judge may not without justification impose stricter evidentiary standards on a defendant . . . than it does on the prosecution.”).  Id. at 644.

[224] Renteria-Gonzalez v. INS, 322 F.3d 804, 811 n.5 (5th Cir. Feb. 27, 2003) (amending opinion on denial of rehearing) (“[T]he INS cannot collaterally attack the Order To Vacate, even for want of jurisdiction, because it did not directly appeal that order in 1992 . . . .”), citing Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 377, 60 S.Ct. 317, 84 L.Ed. 329 (1940) (holding that a “decree sustaining [subject matter] jurisdiction against attack, while open to direct review, is res judicata in a collateral action”); Royal Ins. Co. of Am. v. Quinn-L Capital Corp., 960 F.2d 1286, 1293 (5th Cir.1992) (“If the parties against whom judgment was rendered did not appeal, the judgment becomes final and the court’s subject matter jurisdiction is insulated from collateral attack.”).