Tooby's California Post-Conviction Relief for Immigrants

The effect of a JRAD was to preclude the INS and immigration courts from deporting or excluding the defendant on the basis of the conviction of a crime involving moral turpitude in the case in which the JRAD was granted.  See § 10.30, infra.  A JRAD also had other beneficial immigration effects.  See § 10.32, infra.  The JRAD was effective only as to the specific conviction(s) for which it was granted, however, and was not effective beyond its terms even as to other convictions suffered in the same criminal case.[87]

If a JRAD has been obtained, and there is a reasonable doubt whether it is effective to eliminate the conviction, the party with the burden of proof loses.  In deportation proceedings, this would be the government.[88]

California State Courts sometimes do not understand JRADS.[89]

[87] Matter of Parodi, 17 I. & N. Dec. 608 (BIA 1980).

[88] Nath v. Gonzales, 467 F.3d 1185 (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); 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).

[89] For a particularly inaccurate description of JRADs, see People v. Paredes (2008) 160 Cal. App. 4th 496. 72 Cal.Rptr.3d 867 (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 was not sufficient to show that the original 1987 plea agreement had been violated).