U.S. v. Bodre, 91-1134

• Decision Date: 31 July 1991
• Docket Number: No. 91-1134,91-1134
• Citation: 948 F.2d 28
• Parties: UNITED STATES, Appellee, v. Ingrid Josefina BODRE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 28

948 F.2d 28

UNITED STATES, Appellee, v. Ingrid Josefina BODRE, Defendant, Appellant.

No. 91-1134.

United States Court of Appeals First Circuit.

Heard July 31, 1991.

Decided Oct. 28, 1991.

Rehearing and Rehearing En Banc

Denied Nov. 21, 1991.

Robert D. Richman, Federal Defender Office, for defendant, appellant.

John Reinstein, Judy Rabinovitz, and Lucas Guttentag, on brief for American Civ. Liberties Union, Civ. Liberties Union of Massachusetts and Nat. Immigration Project of the Nat. Lawyers Guild, amici curiae.

Joseph M. Walker, III, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., was on brief for appellee.

Before TORRUELLA, Circuit Judge, and HILL, ^* and BOWNES, Senior Circuit Judges.

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)(11) 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...