Safe Havens

Counsel should check to see if an order granting a Judicial Recommendation Against Deportation is contained in the court file of the conviction.  If so, and the JRAD was properly obtained prior to November 29, 1990, the conviction cannot be used to trigger deportation as an aggravated felony or crime of moral turpitude.  Prior to November 29, 1990, federal immigration law allowed a state or federal criminal sentencing judge, after notice to the INS, the discretion to grant a JRAD within 30 days of sentence.[115]  The effect of a JRAD was to eliminate the conviction of an aggravated felony[116] or crime of moral turpitude as a ground of deportation. [117]  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.[118]

Even now, where a conviction for a crime involving moral turpitude or aggravated felony is triggering deportation or inadmissibility, and the sentence date preceded November 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 November 29, 1990.[119]  The Fifth Circuit has also held JRADs properly granted prior to this date continue to be valid and enforceable.[120]  The statute that repealed JRADs did not diminish the effectiveness of JRADs granted before November 29, 1990.  The regulations reflect this view.[121]

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

[116] Probert v. United States, 737 F.Supp. 1010 (E.D. Mich. 1989) (JRAD available to offender whose aggravated felony controlled substances conviction was on appeal, since only 30 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).

[117] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994); see Renteria-Gonzalez v. INS, 322 F.3d 804 (5th Cir. 2002) (JRADs issued before repeal of JRAD statute are still effective).

[118] 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.]”).

[119] 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 November 29, 1990.”); Memorandum by INS Commissioner Gene McNary, February 4, 1991, reprinted in 68 Interpreter Releases 220 (February 25, 1991).

[120] 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.]”).

[121] 8 C.F.R. § 240.10(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 November 29, 1990.”).