Seventh Circuit on JRADs, due process, ineffective assistance

"Jorge Solis-Chavez is a native of Guatemala who has been a lawful permanent resident in the United States since 1980. In 2007 he faced removal as a result of a 1989 Illinois conviction for sexual abuse of a minor. He initially argued that he was not subject to removal because the judge who convicted and sentenced him issued a judicial recommendation against deportation (“JRAD”). If valid, a JRAD prohibits the Department of Homeland Security (“DHS”) from using a conviction as a basis for removing an alien. Here, the JRAD would have provided a complete defense to removal. But before the Immigration Judge (“IJ”) rendered a decision, Solis-Chavez’s attorney conceded, without consulting his client, that the JRAD was invalid because it was entered outside the 30-day postsentencing window specified in the JRAD statute. Shortly thereafter, Solis-Chavez retained new counsel and sought to revive the JRAD claim. The Board of Immigration Appeals (“BIA”) held that prior counsel had waived the issue. Solis-Chavez petitioned for review. At oral argument we suggested that counsel’s concession before the IJ was uninformed and Solis-Chavez might seek to reopen his case based on ineffective assistance of counsel. Solis-Chavez promptly moved to reopen, but the BIA denied the motion. The Board held that the concession was not prejudicial because the JRAD was untimely and therefore invalid. Solis-Chavez again petitioned for review, and we consolidated the petitions for decision. We now grant the petitions and remand to the BIA for further proceedings. The JRAD was valid. Although it was entered about a month outside the 30-day postsentencing window, the state-court record confirms that the judge unequivocally indicated her intent to retain jurisdiction for the express purpose of considering a JRAD, and the recommendation was thereafter entered without opposition from immigration authorities or the state prosecutor. The JRAD statute (repealed in 1990) is silent on whether noncompliance with the 30-day time limit is a defect that strips the court of authority to enter the recommendation. Dolan v. United States, 130 S. Ct. 2533 (2010), suggests that the missed deadline does not extinguish the court’s authority—at least where, as here, the judge timely announced her intent to consider a JRAD and continued the case for that purpose. Accordingly, conceding the JRAD’s invalidity was gravely prejudicial to Solis-Chavez’s defense against removal. The BIA must determine on remand whether counsel’s concession amounts to a denial of due process, as required for claims of ineffective assistance of counsel in immigration proceedings. We also direct the BIA to clarify two issues it failed to address in Solis-Chavez’s first petition." - Solis-Chavez v. Holder, Oct. 25, 2011.