Crimes of Moral Turpitude

(A)

Retroactivity.  The Immigration Act of 1990 provided that the abolition of the JRAD was retroactive, so that offenses committed before the Act’s effective date of Nov. 29, 1990 could not be treated effectively by the JRAD after Nov. 29, 1990, the effective date of the amendment.[210]  The Ninth Circuit upheld the statute.[211]  Similarly, where counsel’s error forfeited the client’s right to make a motion for a timely JRAD, the Constitution requires that the client be afforded this opportunity.  The Second Circuit has found that a JRAD is effective to waive an aggravated felony, even if the conviction was not considered at aggravated felony at the time.[212]  There are arguments, however, both that the 1990 repeal cannot prevent a criminal court from granting an effective JRAD after that date, if the conviction predates the repeal, and that an earlier, proper JRAD must be given continuing effect.[213]

            The 1990 abolition of the Judicial Recommendation Against Probation should not be construed to invalidate JRADs issued prior to Nov. 29, 1990, the effective date of the legislation.[214]

[210] Immigration Act of 1990, Pub. L. No. 101-649, § 505, 104 Stat. 4978, 5081.

[211] United States v. Murphey, 731 F.2d 606 (9th Cir. 1991) (sentencing judges divested of jurisdiction to issue JRAD as of date of passage of Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978; ex post facto concerns not discussed).

[212] Nguyen v. Chertoff, 501 F.3d 107 (2d Cir. Sept. 13, 2007) (deportation may be avoided even as a result of new aggravated felonies, created after repeal of JRAD statute: “[J]ust as respondents may rely on IIRAIRA's expanded definition of aggravated felony to argue petitioner's deportability on that ground, petitioner may rely on the same definition to claim JRAD protection from deportation on that ground.”).

[213] See Kankamalage v. INS, 335 F.3d 858 (9th Cir. July 8, 2003) (1990 regulation, making certain noncitizens categorically ineligible for a discretionary grant of asylum, cannot be applied retroactively to exclude petitioner for consideration for asylum based on his 1988 robbery conviction).

[214] See Kankamalage v. INS, 335 F.3d 858 (9th Cir. July 8, 2003) (1990 regulation, making certain noncitizens categorically ineligible for a discretionary grant of asylum, cannot be applied retroactively to exclude petitioner for consideration for asylum based on his 1988 robbery conviction).