From 1952 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 judicial recommendation against deportation (JRAD) within 30 days of the date sentence was imposed.[57]  Effective November 29, 1990, the Immigration Act of 1990 abolished the sentencing court’s discretion to grant a JRAD.[58]  Thus, the immigration authorities and immigration courts are now precluded from honoring a JRAD issued on or after November 29, 1990.[59]  This repeal has been held valid.[60]  Whether the repeal of the JRAD should or may be construed retroactively to apply with respect to convictions or JRADs occurring prior to the effective date of the amendment may now be reexamined in light of the retroactivity analysis of the Supreme Court in INS v. St. Cyr.[61]

 

            There is a significant secondary literature concerning this important form of relief.[62]

 

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

[58] See Immigration Act of 1990, Pub. L. No. 101-649, § § 505, 602(b), 104 Stat. 4978, 5081.

[59] Ibid.

[60] United States v. Yacoubian, 24 F.3d 1 (9th Cir. 1994) (repeal did not violate separation of powers because no judicial reversal of the JRAD is required; ex post facto clause is not violated because the deportation provision is civil, not criminal); United States v. Koziel, 954 F.2d 831, 834 (2d Cir. 1992) (“A long . . . line of authority has established that statutes retroactively setting criteria for deportation do not violate the ex post facto provision . . . .  We conclude that there is no ex post facto impediment to Congress’s making the abolition of JRADs applicable to convictions for conduct engaged in before the enactment of the repealer.”).  Cf. Probert v. INS, 954 F.2d 1253 (6th Cir. 1992) (judicial recommendation against deportation granted after enactment of 1990 Act repealed the JRAD is ineffectual).

[61] INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271 (2001).

[62] See N. Tooby & J. Foster, Crimes of Moral Turpitude [19] (2002); Appendix G, Judicial Recommendations Against Deportation Prior To November 29, 1990, D. Kesselbrenner & L. Rosenberg, Immigration Law and Crimes (Nat’l Lawyers Guild, Nat’l Imm. Project, West Group, 2001). See generally Annot., Ineffective Assistance of Counsel: Failure to Seek Judicial Recommendation Against Deportation . . . ., 94 A.L.R. Fed. 868; Joe, The Judicial Recommendation Against Deportation, 45 TX. B. J. 712 (1982); Note, Crimes And Punishment of the Alien: The Judicial Recommendation Against Deportation, 14 Hofstra L. Rev. 357 (1986); Pauw, A New Look at Deportation as Punishment:  Why at Least Some of the Constitution’s Criminal Procedure Protection Must Apply, 52 Admin. L. Rev. 305 (2000).

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 - 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).