Tooby's California Post-Conviction Relief for Immigrants

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.[82]  Effective November 29, 1990, the Immigration Act of 1990 abolished the sentencing court’s discretion to grant a JRAD.[83]  Thus, the immigration authorities and immigration courts are now precluded from honoring a JRAD issued on or after November 29, 1990.[84]  This repeal has been held valid.[85] 

            There is a significant secondary literature concerning this important form of relief.[86]

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

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

[84] Ibid.

[85] 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v. INS, 954 F.2d 1253 (6th Cir. 1992) (judicial recommendation against deportation granted after enactment of 1990 Act repealed the JRAD is ineffectual).

[86] 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). See 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, 2008). 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 Tex. 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).