Crimes of Moral Turpitude

Prior to Nov. 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 sentence.[159]  Where a JRAD was properly issued by the criminal sentencing court prior to the repeal of the provision authorizing it, the JRAD remains valid and enforceable today despite the repeal of the enabling legislation.[160]

Where a JRAD was not granted prior to Nov. 29, 1990, the Immigration Act of 1990 abolished the sentencing court’s discretion to grant a JRAD.[161]  Thus, the DHS and immigration courts are now precluded from honoring a JRAD issued on or after Nov. 29, 1990.[162]  This repeal has been held valid.[163]  Whether the repeal of the JRAD should or may be construed retroactively to apply with respect to convictions 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.[164]

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

[160] Renteria-Gonzalez v. INS, 322 F.3d 804 n.5 (5th Cir. Feb. 27, 2003) (amending opinion on denial of rehearing) (“[P]re-enactment JRAD’s remain effective. Thus, the INS could not have deported Renteria-Gonzalez for the offenses specified in the JRAD even after enactment of the [Immigration] Act [of 1990 which abolished future grants of JRADs]).

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

[162] Ibid.

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v. INS, 954 F.2d 1253 (6th Cir. 1992) (judicial recommendation against deportation granted after enactment of 1990 Act repealed the JRAD is ineffectual).

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