Safe Havens

(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).