United States v. Ingrid Josefina Bodre

948 F.2d 28

• Court: Court of Appeals for the First Circuit
• Decided: November 21, 1991
• Docket: 91-1134
• Status: Published

Opinions

HILL, Senior Circuit Judge.

Appellant is a citizen of the Dominican Republic and permanent resident alien of the United States. Appellant pled guilty in the district court to charges of possession and distribution of heroin. Appellant’s motion for a Judicial Recommendation Against Deportation was denied by the district court on the grounds that Congress eliminated the sentencing judge’s power to make such a recommendation under Section 505 of the Immigration Act of 1990.

Appellant appeals from the district court’s denial of her motion for a Judicial Recommendation Against Deportation. She advances the theory that the retrospective application of Section 505 to her case violates the Constitution’s prohibition against ex post facto laws.

We AFFIRM the district court’s denial of Appellant’s motion. The Judicial Recommendation Against Deportation was not an action criminal in substance and the principal effect of its repeal is upon the civil action of deportation. Accordingly, the ex post facto clause has no application to the Congressional repeal of the judicial power to make recommendations against deportation.

I. BACKGROUND

Appellant, a citizen of the Dominican Republic, has been a legal permanent resident of the United States since 1985. On September 18, 1990, Appellant pled guilty in the district court to charges of conspiracy to distribute heroin and distribution of heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1). Under the Immigration and Nationality Act (INA), this conviction mandated that Appellant be deported as an “aggravated felon” under 8 U.S.C. § 1251(a)(2)(A)(iii).¹

On November 26, 1990, Appellant moved for a Judicial Recommendation Against Deportation (JRAD). Before November 29, 1990, a convicted alien could seek relief from Section 1251(a)(2)(A)(iii)’s mandatory deportation requirement by seeking a JRAD under 8 U.S.C. § 1251(b)(2), which provided:

(b) The provision ... of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply ... (2) if the court sentencing such alien for such crime shall make, at the time of first imposing judgment or passing sentence, or within thirty days thereafter, a recommendation to the Attorney General that such alien not be deported, due notice having been given prior to making such recommendation to representatives of the interested State, the Service, and prosecution authorities, who shall be granted an opportunity to make representations in the matter. The provisions of this subsection shall not apply in the case of any alien who is charged with being deportable from the United States under subsection (a)(ll) of this section.²

While § 1251(b) referred to judicial “recommendation,” a JRAD properly entered with respect to a conviction absolutely barred the Immigration & Naturalization Service (I.N.S.) from using that conviction as a basis for deportation. See, e.g., Pacheco v. I.N.S., 546 F.2d 448, 452 (1st Cir.1976), cert. denied, 430 U.S. 985, 97 S.Ct. 1683, 52 L.Ed.2d 380 (1977); Velez-Lozano v. I.N.S., 463 F.2d 1305, 1308 (D.C.Cir.1972). However, on November 29, 1990, while Appellant’s motion for a JRAD was pending, the Immigration Act of 1990 went into effect. Pub.L. No. 101-649. Section 505(a) of the 1990 Act repealed the sentencing judge’s power to issue JRADs. Section 505(b) stated that the repealer took effect immediately and applied “to convictions entered before, on or after” November 29, 1990. Pub.L. No. 101-649, Title V, § 505(b), 104 Stat. 5050 (1990).

At the sentencing hearing on December 13, 1990, the district judge denied Appellant’s motion for a JRAD. While stating that there was no doubt in his mind that he would issue the JRAD if he had the power, the district judge conceded that, under the repealer he was “powerless” to recommend against deportation and had “no option” whatsoever in the matter.

Appellant appeals from the ruling denying her motion, claiming that the repeal of Judicial Recommendations Against Deportation by the Immigration Act of 1990, as it applies to crimes committed before the effective date of the repealer, violates the Constitutional prohibition of ex post facto laws. Because the Appellant committed her crimes prior to the effective date of the Immigration Act’s repeal of JRADs, the Appellant argues that application of the repealer to her would be unconstitutional.

II. THE EX POST FACTO CLAUSE

A. Limitation to Criminal Matters

The ex post facto clause of the United States Constitution prohibits the retrospective application of criminal laws that materially disadvantage the defendant. See U.S. Const., Art. I, § 9, cl. 3; Art. 1, § 10, cl. 1. Read literally, the prohibition applies to any law passed “after the fact.” However, a long line of Supreme Court cases beginning with Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), has established that the ex post facto clause applies only to criminal laws. See, e.g., Collins v. Youngblood, — U.S. —, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990) (“It has been long recognized by this Court that the Constitutional prohibition of ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.”); Harisiades v. Shaughnessy, 342 U.S. 580, 594, 72 S.Ct. 512, 521, 96 L.Ed. 586 (1952) (“It has always been considered that that which [the ex post facto clause] forbids is penal legislation which imposes or increases criminal punishment for conduct lawful prior to its enactment.”) ³

With its scope limited to criminal legislation, the ex post facto clause allows individuals to rely on existing law regarding criminal conduct and prevents retrospective punishment for crimes committed before any changes in the law. E.g., Weaver v. Graham, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981); Calder, 3 U.S. at 396 (Paterson, J.). In Calder, Justice Chase explained that the ex post facto clause was included by the Framers to assure that federal and state legislators were restrained from arbitrary or vindictive action.⁴ See Calder, 3 U.S. at 389. From the outset, then, the Supreme Court has ruled that the ex post facto prohibition is a safeguard against the “lack of fair notice and governmental restraint [that exists] when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver, 450 U.S. at 30, 101 S.Ct. at 965; see Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987).

B. The Clause in Deportation Proceedings

It is well established that deportation proceedings are not criminal actions. Deportation proceedings have been consistently classified as purely civil in nature. See, e.g., I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1038, 104 S.Ct. 3479, 3483, 82 L.Ed.2d 778 (1984) (“A deportation proceeding is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry, though entering or remaining in this country is itself a crime.” (citation omitted)); Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521. Consequently, the ex post facto clause has no application to deportation proceedings. E.g., Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 743, 98 L.Ed. 911 (1954) (“[T]he ex post facto Clause ... has no application to deportation.”); Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521 (“Deportation, however severe its consequences, has been consistently classified as a civil rather than criminal procedure ... the prohibition of ex post facto has no application.”)

While noting the severe consequences that deportation may have on an alien, the Supreme Court has repeatedly held that deportation is not punishment for the commission of crimes. E.g., Harisiades v. Shaughnessy, 342 U.S. at 594-95, 72 S.Ct. at 521 (“The determination of facts that might constitute a crime under local law is not a conviction of a crime, nor is the deportation a punishment: it is simply a refusal by the government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident.”) (quoting Bugajewitz v. Adams, 228 U.S. 585, 591, 33 S.Ct. 607, 608, 57 L.Ed. 978 (1913)); Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549 (1924) (“It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment.”); Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905 (1893).

The Supreme Court has consistently deferred to Congress in matters of deportation. See Harisiades v. Shaughnessy, 342 U.S. at 594, 72 S.Ct. at 521 (“It is thoroughly established that Congress has power to order the deportation of aliens whose presence in this country it deems hurtful.”) (quoting Bugajewitz v. Adams, 228 U.S. at 591, 33 S.Ct. at 608). While there have been credible arguments brought before the Court that the ex post facto clause should be applied to deportation proceedings, these arguments have never succeeded. That the ex post facto clause has no application to deportation proceedings is as axiomatic as any rubric in the law. In Galvan v. Press, 347 U.S. at 530-31, 74 S.Ct. at 742, Justice Frankfurter, writing for the Court, stated:

[M]uch could be said for the view, were we writing on a clean slate, that ... since the intrinsic consequences of deportation are so close to punishment for crime, it might fairly be said also that the ex post facto Clause, even though applicable only to punitive legislation, should be applied to deportation.

But the slate is not clean ... [T]here is not merely a page of history, but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government ... That the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissue of our body politic as any aspect of government. And whatever might have been said at an earlier date for applying the ex post facto Clause, it has been the unbroken rule of this Court that it has no application to deportation.

Subsequent case history has reemphasized Justice Frankfurter’s words. Congressional legislation retroactively making past criminal activity a new basis for deportation has been repeatedly upheld. See, e.g., Lehman v. U.S. ex rel. Carson, 353 U.S. 685, 690, 77 S.Ct. 1022, 1024, 1 L.Ed.2d 1122 (1957) (alien made deportable under the Immigration and Nationality Act of 1952 for convictions of crimes involving moral turpitude in 1936); Mulcahey v. Catalanotte, 353 U.S. 692, 694, 77 S.Ct. 1025, 1027, 1 L.Ed.2d 1127 (1957) (alien made deportable under the 1952 Act for narcotics convictions in 1923); Marcello v. Bonds, 349 U.S. 302, 314, 75 S.Ct. 757, 764, 99 L.Ed. 1107 (1955) (alien made deportable under the Immigration and Nationality Act of 1952 for a marihuana conviction in 1938); and Gardos v. I.N.S., 324 F.2d 179 (2d Cir.1963) (alien made deportable by previous marihuana conviction).

To summarize, deportation has been staunchly classified as a civil rather than criminal proceeding. Deportation itself is not punishment for criminal acts but rather a governmental decision not to harbor an unwanted alien. The ex post facto clause has been unswervingly held as inapplicable to matters of deportation. Regarding matters of deportation, the Supreme Court has faithfully deferred to Congressional regulation.

In order to succeed in her appeal, Appellant must surmount these formidable judicial hurdles which are “about as firmly embedded in the judicial tissue of our body politic as any aspect of government.” As we examine the arguments Appellant advances in her favor, we necessarily remain mindful that “whatever might have been said at an earlier date for applying the ex post facto clause, it has been the unbroken rule ... that it has no application to deportation.” Galvan, 347 U.S. at 531, 74 S.Ct. at 743.

III. APPELLANT’S CLAIM

Appellant does not question the body of law discussed above or suggest that the ex post facto clause applies to deportation proceedings. Rather, the Appellant claims that the Judicial Recommendation Against Deportation stood on separate footing from deportation measures. The crux of Appellant’s argument is that the JRAD was criminal in nature because it was an integral part of the sentencing stage of a criminal prosecution. Appellant maintains that once Congress entrusted the sentencing judge with the exclusive power to grant a JRAD under § 1251(b), the JRAD became a part of criminal sentencing and fell outside the civil sphere of deportation.

Appellant contends that, because the JRAD was a part of criminal sentencing, Congressional repeal of the recommendation authority, as applied to crimes committed before the effective date of the repeal-er, violates the Constitutional prohibition of ex post facto laws. Because her crimes were committed prior to the effective date of the repealer, Appellant argues that application of the repealer to her is unconstitutional.

Appellant’s claim turns on whether the JRAD was criminal or civil in nature and thus whether the ex post facto clause applies. In supporting her argument that the JRAD was a part of criminal sentencing, Appellant relies heavily upon Janvier v. United States, 793 F.2d 449 (2d Cir.1986), in which the Second Circuit held that JRADs were part of the sentencing stage of a criminal prosecution and that the Sixth Amendment right to effective assistance of counsel attached. See Janvier, 793 F.2d at 455.

Appellant follows the reasoning of the Second Circuit in Janvier in asserting that the confiding of absolute discretion in the sentencing judge supports the view that the JRAD was a part of criminal sentencing. Appellant relies on the procedural framework set forth for the sentencing judge in deciding whether to issue a JRAD to bolster this position.⁵

Appellant also contends, as did Janvier in its exhaustive tracing, that the legislative history of 1251(b) reflects that Congress intended the JRAD to allow the sentencing judge to reduce criminal sentences in appropriate case. Thus, it is argued, brings the JRAD within the scope of sentencing. Finally, Appellant argues that sentencing judges applied traditional sentencing considerations to their decision whether to grant a JRAD and that this, too, removes the JRAD from the realm of civil deportation proceedings.

Appellant’s argument, at its core, promotes form over substance. We disagree with Appellant’s claim that JRADs were substantively part of criminal sentencing. Certainly Congress placed JRADs procedurally within the sentencing phase of a criminal trial. However, that procedural placement does not alter the fact that the substantive effect of a JRAD was on the alien’s deportability status and not upon the sentence imposed. While the motion to grant a JRAD was passed on during the course of criminal sentencing (or within thirty days thereafter), the material impact of the JRAD was felt not upon the sentence but upon deportation efforts. Simply because Congress empowered an official dressed in a black robe presiding over a courtroom to make binding recommendations regarding deportation does not intrinsically render that recommendation a criminal matter. The fact that the recommendation was found in Janvier to be a part of the criminal sentencing phase does nothing to change this basic premise.

The substantive value of the JRAD to an alien defendant was in deportation consequences, not in criminal sentencing. This is made clear by the binding effect of a JRAD on I.N.S. deportation efforts. While a reviewing court has power to vacate a sentence imposed by a sentencing judge, that same judge’s granting of a JRAD was given absolute binding effect upon deportation efforts by the I.N.S. That the sentencing judge’s passing on a JRAD was given such absolute discretion upholds our opinion that JRADs were substantively part of deportation measures rather than criminal sentencing. Likewise, the substantive effect of the JRAD repealer is upon deportation measures, not upon criminal sentencing.

We fail to see how the punishment for Appellant’s crimes has changed since their commission.⁶ In the first place, regardless of what was culled from legislative history, it is axiomatic that deportation is not punishment. E.g., I.N.S. v. Lopez-Mendoza, 468 U.S. at 1038, 104 S.Ct. at 3483; Harisiades v. Shaughnessy, 342 U.S. at 594-95, 72 S.Ct. at 521. Whether a sentencing judge considered traditional sentencing factors in deciding whether to grant a JRAD does nothing to change this well established principle. Likewise, the fact that a JRAD motion and sentencing were passed on concurrently does nothing to alter the precept that deportation is not punishment.

Secondly, the fact that deportation was a mandatory consequence of Appellant’s criminal conduct has not changed in any respect since the commission of her crimes. Prior to the repealer, deportation was mandatory for aliens adjudicated as aggravated felons. Deportation remains mandatory for such aliens after the repealer. While § 1251(b) was in effect, Appellant could bring a motion for a JRAD, but Appellant had no absolute right to have her motion granted as the power to grant or deny a JRAD was in the sentencing judge’s discretion. Congressional repeal of discretionary power is by no means the equivalent of a change in punishment.

Both prior to and after their commission, the effect of the crimes as to Appellant’s deportation vel non was and is a matter of immigration law. Deportation has always been a matter exclusively entrusted to Congress as “policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government.” Galvan v. Press, 347 U.S. at 531, 74 S.Ct. at 743. Immigration law in general and the deportability of an alien convicted of an aggravated felony specifically are powers entrusted to the Congress. In imparting discretionary JRAD authority to sentencing judges, Congress acted peculiarly to grant the judiciary partial subject-matter jurisdiction over immigration. To the extent this jurisdiction was granted, it was but loaned to the judiciary by the Congress. While administering criminal law, sentencing judges were empowered to grant or deny motions for JRADs. It does not follow that JRADS were incorporated by the Congress into the larger body of criminal law. In administering discretionary JRAD authority, sentencing judges were operating under the grant of immigration law jurisdiction. The substantive character of the law administered did not change with the mere change in identity of the official acting as administrator. The JRAD was, we conclude, substantively a part of civil deportation measures.

In Janvier v. United States, the Second Circuit held that the JRAD decision was part of the criminal sentencing process to which Sixth Amendment safeguards were applicable. See Janvier, 739 F.2d at 455. The difference in our present opinion may be explained by the fact that, by emphasizing the procedural placement of the JRAD decision, the Janvier Court may have been striving to ensure the integrity of procedural safeguards that protect the defendant’s right to effective assistance of counsel. However, to the extent the Second Circuit’s opinion in Janvier held that the JRAD was substantively within the scope of criminal sentencing, we respectfully disagree.

To summarize, the JRAD had its substantive effect upon deportation measures, not the criminal sentence imposed. Likewise, the repeal of JRADs has its substantive effect upon deportation measures rather than the criminal sentences. That the sentence and JRAD were passed on concurrently during criminal administration does nothing to change these facts. Because the JRAD and its repealer were and are substantively deportation matters and within the civil realm, the ex post facto clause has no application to them. Accordingly, we agree with the district judge that, after November 29, 1990, he had no power to grant a JRAD and that he had “absolutely no option” other than to deny Appellant’s motion for a Judicial Recommendation Against Deportation.

IV. JUDGMENT

We AFFIRM the district court’s denial of Appellant’s motion for a Judicial Recommendation Against Deportation.

1 . The Immigration Act of 1990, Pub.L. No. 101-649, Title VI, § 602(a), 104 Stat. 5077 (1990), amended the provisions of 8 U.S.C. § 1251(a)(4) and recodified them at § 1251(a)(2)(A)(iii), which provides as follows:

(a) Any alien (including an alien crewman) in the United States shall, upon the order of the Attorney General, be deported if the alien is deportable as being within one or more of the following classes of aliens:

(2)(A)(iii) Aggravated Felony

Any alien who is convicted of an aggravated felony at any time after entry is deportable.

“Aggravated felony" is defined in 8 U.S.C. § 1101(a)(43) to include, by reference to 18 U.S.C. § 924(c)(2), felony narcotics offenses.

2 . We note that Appellant is also deportable under 8 U.S.C. § 1251(a)(ll) as one “convicted of a violation of, or conspiracy to violate, any law or regulation relating to the illicit possession of or traffic in narcotic drugs.” Id.

3 . The Supreme Court has fashioned a three-pronged test for determining whether legislation violates the ex post facto clause. First, the legislation must be penal or criminal in nature. See Harisiades v. Shaughnessy, 342 U.S. 580, 594-95, 72 S.Ct. 512, 521-22, 96 L.Ed. 586 (1952). Second, the legislation must be retrospective. See Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987). Third, the legislation must "disadvantage the offender affected by it.” Id. (quoting Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)).

4 . Justice Chase’s now familiar Calder opinion instructs us which legislative acts in his view implicated the primary concerns of the ex post facto clause:

"1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the commission of the offense, in order to convict the offender.”

3 U.S. at 390 (emphasis in original).

5 . Appellant argues that (1) § 1251(b) required that the decision whether to issue a JRAD be made only by the court sentencing the alien for a crime (whether that court be federal, state or local). (2) The recommendation was required to be entered at the time of passing sentence or within thirty days thereafter. Appellant argues this time restriction only makes sense if the JRAD decision is based on the seriousness of the crime, a traditional sentencing consideration, and not if the decision is based on whether deportability is appropriate; and (3) the judge's JRAD power was triggered by conviction, not deportability. This, Appellant argues, supports the position that the JRAD decision, like the sentencing decision, was based on the judge’s view of an appropriate punishment, not an alien’s immigration status.

This last argument is particularly circuitous. Since deportability is triggered by conviction, it is logical that the JRAD authority would likewise be triggered by conviction. Simply because sentencing and JRAD authority are both triggered by conviction does not lead to the immediate conclusion that they are part of the same substantive law.

6 . We are mindful of the fact that, in determining whether punishment has changed for ex post facto purposes, the inquiry is on whether a change in the law is more onerous than preexisting law. See Miller v. Florida, 482 U.S. at 431, 107 S.Ct. at 2451; Dobbert v. Florida, 432 U.S. 282, 294, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344 (1977). In making this determination, the focus is on "the practical operation” of the change in the law rather than whether the new law is "technically an increase in the punishment annexed to the crime.” Lindsey v. Washington, 301 U.S. 397, 399-400, 401, 57 S.Ct. 797, 798-997, 81 L.Ed. 1182 (1937).