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Nourredine Khodja v. Eric H. Holder

December 12, 2011

NOURREDINE KHODJA, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of Orders of the Board of Immigration Appeals. No. A038-672-573

The opinion of the court was delivered by: Kanne, Circuit Judge.

ARGUED OCTOBER 27, 2011

Before FLAUM, KANNE, and WOOD, Circuit Judges.

Petitioner Nourredine Khodja became a lawful permanent resident of the United States on February 11, 1984. In 1990, Khodja was con- victed of aggravated battery and armed violence and sentenced to four years' imprisonment. After his sentencing hearing, Khodja moved for a judicial recom- mendation against deportation ("JRAD"). An assistant attorney for the Immigration and Naturalization Service ("INS") stated that the motion should be denied because Khodja could seek a § 212(c) waiver in a subsequent immigration proceeding. On this basis, the trial judge denied the motion. Congress repealed § 212(c) in 1996. In 2003, following a vacation to the Dominican Republic, the INS charged Khodja as being inadmissible for having been convicted of a crime involving moral turpitude. Khodja sought a waiver under §§ 212(c) and (h). The immigration judge denied both waivers, and the Board of Immigration Appeals affirmed. Because we find that the repeal of § 212(c) does not apply retroactively to Khodja's case, the petition will be granted.

I. BACKGROUND

Nourredine Khodja is a sixty-one-year-old Tunisian native and dual citizen of Tunisia and Canada. In 1969, Khodja met his wife, a United States citizen, while she was a summer exchange student in Canada. They married in 1977 and have two children, ages thirty-two and twenty-four. Khodja became a lawful permanent resident of the United States on February 11, 1984.

On October 14, 1988, Khodja was charged in Illinois state court with aggravated battery, armed violence, and attempted murder after he repeatedly stabbed James W. Bevan in the back and side. During the bench trial, expert testimony established that Khodja suffered from major depression with psychotic features at the time he com- mitted the crime. On March 14, 1990, the trial judge found Khodja "guilty but mentally ill" on the aggravated battery and armed violence counts. Khodja was found not guilty of attempted murder. On May 18, 1990, Khodja was sentenced to four years' imprisonment for his armed violence conviction. He did not receive a sentence on the aggravated battery conviction.*fn1

Following his sentencing hearing, Khodja moved for a judicial recommendation against deportation, or JRAD. At the time of Khodja's hearing, a sentencing judge could issue a JRAD, which provided that the defendant's conviction could not be used as a basis for deportation by immigration authorities. See 8 U.S.C. § 1251 (b)(2)

(repealed 1990). "Although called a 'recommendation,' the command of a JRAD was mandatory." Solis-Chavez v. Holder, Nos. 10-1354 & 11-1243, 2011 WL 5041916, at *2 (7th Cir. Oct. 25, 2011). At Khodja's hearing, Seth Fitter, an assistant attorney for the former INS, urged the court to deny the JRAD motion because Khodja could seek a waiver before an immigration judge. He stated as follows:

Basically, Judge, this is a highly unusual type of relief for the Defendant here.

There is an Immigration Judge who handles immigra- tion cases. He is apart from the Immigration Service.

He would make a ruling on a case like this to deter- mine whether the Defendant is deportable. And then after that, if that's correct, then there is a separate portion in which the Defendant would testify, bring in his wife, and the Judge has--could grant a waiver of this conviction.

But if the Court grants this motion, it's as if you are usurping the role of the Immigration Judge in making that ruling.

And I don't believe in this type of case the Immigra- tion Judge should be taken out of ...


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