Crimes of Moral Turpitude

(A)

Deportation Grounds Covered.  The JRAD effectively prevented deportation only on the basis of one or more convictions of crimes involving moral turpitude.  It was completely ineffective as to controlled substance convictions.[167]  It did not eliminate deportability on account of a firearms conviction.[168]  At least two courts, however, have applied the JRAD to an aggravated felony conviction.[169]  A JRAD was ineffective to bar deportation if any ground of deportation, other than one for which a JRAD was effective, was alleged against the noncitizen.[170]

            There is a question whether a CMT conviction, for which a JRAD was validly obtained before Nov. 29, 1990, can trigger deportation for multiple CMT convictions when combined with a later (or earlier) second CMT.  Immigration counsel could argue that under the former statute, still enforced, deportation cannot be based on a CMT for which a JRAD was granted.  The government can argue that the CMT for which a JRAD was granted forms one CMT of a two-CMT deportation ground. They could analogize to those cases that hold if a noncitizen has CMTs that trigger deportation, and then respondent obtains a waiver of deportation for them under former INA § 212(c) waiver, and the client suffers another CMT conviction, the old waived CMT can be combined with the new CMT conviction to trigger deportation for multiple CMTs.[171]  The waiver does not eliminate the old CMT.  It merely waivers deportation for that ground and that ground only.  The two-CMT deportation ground is a different ground, and both CMT convictions continue to exist, and so can trigger deportation.  The question would be whether counsel can distinguish those 212(c) cases.

[167] Former 8 U.S.C. § 1251(b).

[168] United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc); United States v. Quintana, 914 F.2d 1409 (10th Cir. 1990) (statute that provides for a binding recommendation by a judge against deportation did not apply to a noncitizen who pleaded guilty to possession of a sawed-off shotgun, which was not a crime involving moral turpitude).

[169] 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); 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 was 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).

[170] See Jew Ten v. INS, 307 F.2d 832 (9th Cir. 1962); United States v. George, 534 F.Supp. 570 (S.D.N.Y. 1982) (criminal court lacked jurisdiction to grant JRAD, since INS had lodged deportation charge of overstaying a visa, rather than for conviction of crime of moral turpitude); Matter of Corral-Fragoso, 11 I. & N. Dec. 478 (BIA 1966).

[171] See § 3.43, supra.