(C)  Other Arguments.  A number of arguments are available if original defense counsel failed to obtain a JRAD in an appropriate case.  (1)  If original defense counsel failed to obtain or attempt to obtain a JRAD for a CMT or aggravated felony when sentencing occurred prior to November 29, 1990, s/he may have rendered ineffective assistance of counsel, enabling successor counsel to vacate the original sentence and obtain a JRAD nunc pro tunc now which may be effective.[138]  (2)  If the conviction can now be vacated as legally invalid, and a new CMT or aggravated felony conviction results, counsel can attempt to obtain a JRAD nunc pro tunc now which may be effective.[139]  (3)  The 1990 repeal arguably cannot prevent a criminal court from granting an effective JRAD after that date, if the conviction predates the repeal, and an earlier, proper JRAD must be given continuing effect.[140]  (4)  Since the criminal sentencing hearing, the only proceeding at which a JRAD may be granted, forms part of a criminal case, there is an excellent argument that the ex post facto clauses of the United States Constitution forbid denial of an effective JRAD in a case in which the criminal offense occurred prior to November 29, 1990.[141]  (5)  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.[142]

[138] See N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude § 10.16 (2005). 

[139] See N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude § 10.17 (2005).

[140] 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).  See N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude § 10.18 (2005).

[141] United States v. Shaibu, 957 F.2d 662 (9th Cir. 1992) (ruling on judicial recommendation against deportation motion is final appealable decision because it is integral part of sentencing process), citing Janvier v. United States, 793 F.2d 449, 452-54 (2d Cir. 1986); N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude § 10.18(B) (2005).

[142] 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).  See N. Tooby, J. Rollin, & J. Foster, Crimes of Moral Turpitude § 10.19 (2005).

Second Circuit

POST-CON RELIEF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES
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).

POST-CON - JUDICIAL RECOMMENDATION AGAINST DEPORTATION WORKS FOR AGGRAVATED FELONIES - RETROACTIVITY
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 IIRIRA'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.").

POST CON RELIEF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION - IMMIGRATION EFFECT - ELIMINATES CMT AND AGGRAVATED FELONY CONVICTIONS AS GROUNDS FOR DEPORTATION
A JRAD prevents deportation on account of an aggravated felony. Nguyen v. Chertoff, 501 F.3d 107, 113 (2d Cir. 2007); 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 were 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). This is because the JRAD statute stated it prevented deportability under the statute that provided both CMTs and AFs constituted grounds of deportability. (Former INA 237(a)(4).) United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc), does not hold a JRAD does not prevent deportation on account of an AF. Hovsepian was charged with deportability under the firearms and destructive devices grounds, not the aggravated felony ground. The JRAD is effective to prevent deportation on the aggravated felony ground.

The JRAD statute applied both to the moral turpitude and the aggravated felony deportation grounds, in that it waived deportability under former INA 237(a)(4), which included both CMT and AF. (See Nguyen v. Chertoff, 501 F.3d 107, 113 (2d Cir. 2007), and cases cited.) Mr. Nguyen' obtained a JRAD for a CMT that later was retroactively made an aggravated felony. The Second Circuit did not adopt the government's anti-retroactivity argument that the JRAD does not waive the AF conviction because the conviction was not classified as an AF at the time the JRAD was issued. The most extensive discussion of JRADs is found in N. Tooby, J. Rollin & J. Foster, CRIMES OF MORAL TURPITUDE 10.12-10.20 (3d ed. 2008).

Seventh Circuit

POST CON RELIEF " JUDICIAL RECOMMENDATION AGAINST DEPORTATION
Khodja v. Holder, 666 F.3d 415 (7th Cir. Dec. 12, 2011) (immigration authorities may not deport a noncitizen on account of a conviction for which a judicial recommendation against deportation has been granted); see 8 U.S.C. 1251(b)(2) (repealed 1990); following Solis"Chavez v. Holder, 662 F.3d 462 (7th Cir. Oct. 25, 2011).

POST CON RELIEF " JUDICIAL RECOMMENDATION AGAINST DEPORTATION " TIMELINESS
Solis-Chavez v. Holder, ___ F.3d ___, 2011 WL 5041916 (7th Cir. Oct. 25, 2011) (The JRAD was valid. Although it was entered about a month outside the 30"day post-sentencing window, the state-court record confirms that the judge unequivocally indicated her intent to retain jurisdiction for the express purpose of considering a JRAD, and the recommendation was thereafter entered without opposition from immigration authorities or the state prosecutor. The JRAD statute (repealed in 1990) is silent on whether noncompliance with the 30"day time limit is a defect that strips the court of authority to enter the recommendation. Dolan v. United States, 130 S.Ct. 2533 (2010), suggests that the missed deadline does not extinguish the court's authority"at least where, as here, the judge timely announced her intent to consider a JRAD and continued the case for that purpose.).

Ninth Circuit

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - GOVERNMENT BEARS BURDEN OF PROOF THAT ORDER VACATING CRIMINAL CONVICTION WAS INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen).

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - GOVERNMENT BEARS BURDEN OF PROOF THAT ORDER VACATING CRIMINAL CONVICTION WAS INEFFECTIVE TO ELIMINATE CONVICTION FOR IMMIGRATION PURPOSES
Nath v. Gonzales, ___ F.3d ___, 2006 WL 3110424 (9th Cir. Nov. 3, 2006) (government has burden of proof by clear and convincing evidence that order vacating conviction was ineffective to eliminate conviction for immigration purposes when respondent made motion to reopen removal proceedings after conviction had been vacated; because order was ambiguous as to whether it had been based on a ground of invalidity, government could not meet its burden of proof, and BIA abused its discretion in denying motion to reopen).

POST CON RELIEF - EFFECTIVE ORDER - BURDEN OF PROOF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION - BURDEN ON GOVERNMENT TO PROVE RESENTENCING GRANTED SOLELY TO ENABLE COURT TO ISSUE TIMELY JRAD OR ELSE JRAD WOULD BE HELD EFFECTIVE
Rashtabadi v. INS, 23 F.3d 1562 (9th Cir. 1994) (all presumptions normally operating in favor of the judgment operate in favor of the validity of a Judicial Recommendation Aagainst Deportation, and the burden is on the government to prove the criminal resentencing was granted solely to enable the court to issue a timely JRAD or else the JRAD would be held effective).

Lower Courts of Ninth Circuit

POST-CON - JUDICIAL RECOMMENDATION AGAINST DEPORTATION
People v. Paredes, 72 Cal.Rptr.3d 867 (Cal.App. 4 Dist. Feb. 26, 2008) (agreement of state to JRAD does not constitute an express or implied promise that the conviction will not render the noncitizen deportable; the fact that the federal immigration laws changed retroactively to make 1987 manslaughter conviction deportable as an aggravated felony not sufficient to show that the original 1987 plea agreement had been violated).

Other

CONVICTION - CRIMINAL OFFENSE -- MILITARY OFFENSE
Congress knows how to refer to military criminal offenses if it wishes to do so. For example, Congress recently provided, with respect to a specific new statute, that "The term `criminal offense' means a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other criminal offense." The Adam Walsh Child Protection and Safety Act of 2006, H.R. 4472, Pub. L. 109-248, 111(6) (July 27, 2006).

POST CON RELIEF - JUDICIAL RECOMMENDATION AGAINST DEPORTATION - IMMIGRATION EFFECT
There is a question whether a CMT conviction, for which a JRAD was validly obtained before November 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. 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.