U.S. v. Lopez
| Decision Date | 04 April 2006 |
| Docket Number | Docket No. 03-1476-CR. |
| Citation | 445 F.3d 90 |
| Parties | UNITED STATES of America, Appellee, v. Jermi Francisco LOPEZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Matthew L. Guadagno, Bretz & Coven, LLP, (Kerry William Bretz and Jules E. Coven, on the brief), New York, New York, for Defendant-Appellant.
Colleen Kavanaugh, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Barbara D. Underwood and Emily Berger, Assistant United States Attorneys, of counsel), Brooklyn, New York, for Appellee.
Before: SACK, SOTOMAYOR and RAGGI, Circuit Judges.
Defendant Jermi Francisco Lopez appeals from an August 5, 2003 judgment of the United States District Court for the Eastern District of New York (Johnson, J.) convicting him, upon his conditional plea of guilty, of illegally reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). We hold that erroneous statements by the Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") informing Lopez that he was categorically ineligible for relief under former § 212(c) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(c), deprived Lopez of judicial review within the meaning of 8 U.S.C. § 1326(d)(2). We vacate Lopez's conviction and remand to the district court for determination of whether the erroneous information given by the government to Lopez on the availability of § 212(c) relief rendered Lopez's deportation order fundamentally unfair within the meaning of § 1326(d)(3).
Lopez, a citizen of the Dominican Republic, first entered the United States in January 1986 at the age of nine as a lawful permanent resident. On October 6, 1994, Lopez was convicted in New York State Supreme Court of attempted robbery in the second degree. Upon entering a plea of guilty, he was sentenced to a term of two to six years' imprisonment. On November 14, 1996, the Immigration and Naturalization Service ("INS")1 issued Lopez an Order to Show Cause, charging him with deportability under INA § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(A)(iii).
Much of the subsequent history of this case hinges on significant revisions to the immigration laws that occurred during this time period. Prior to 1996, former § 212(c) of the INA vested the Attorney General with "broad discretion to cancel deportation orders for aliens who met certain residence requirements and had not served five years in prison for an aggravated felony." United States v. Copeland, 376 F.3d 61, 64 (2d Cir.2004) (citing 8 U.S.C. § 1182(c) (repealed 1996)). The enactment of the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), extinguished the prospect of such relief for many categories of aliens. Section 440(d) of AEDPA eliminated § 212(c) waivers of deportation for those aliens deportable for having committed, inter alia, an aggravated felony or a controlled substance offense. Subsequently, § 304 of IIRIRA repealed § 212(c) and replaced it with a narrower provision called "cancellation of removal."2 See United States v. Johnson, 391 F.3d 67, 70 (2d Cir.2004). Under the cancellation of removal provision, codified at INA § 240A(a), the Attorney General lacks discretion to cancel the removal of a lawful permanent resident who has, inter alia, been convicted of an aggravated felony. 8 U.S.C. § 1229b(a).
On February 7, 1997, Lopez appeared at a deportation hearing before an IJ. Lopez requested and received an adjournment until March 10, 1997, to obtain an attorney. On this date, he appeared before the IJ and requested and received a second adjournment to obtain an attorney, but was told that this adjournment would be the last one granted to him. On April 22, 1997, Lopez appeared pro se, admitted the allegations in the Order to Show Cause, and conceded deportability. The IJ informed Lopez that he was ineligible for any relief from deportation, including discretionary relief under § 212(c) of the INA, and ordered Lopez deported to the Dominican Republic. The IJ also told Lopez of his right to appeal the ruling to the BIA.
Lopez appealed the IJ's decision, arguing that § 440(d) of AEDPA could not be applied retroactively to him and that he should have been afforded § 212(c) relief. On October 31, 1997, the BIA dismissed Lopez's appeal, applying § 440(d) of AEDPA to hold that Lopez's criminal conviction made him "statutorily ineligible" for § 212(c) relief. The BIA relied on Matter of Soriano, 1996 WL 426888, 21 I. & N. Dec. 516 (1997), which held that AEDPA's amendments to § 212(c) applied to proceedings pending when AEDPA became law and to those that commenced subsequent to AEDPA's passage.3 Because Lopez's deportation proceedings began prior to April 1997 and became administratively final after October 1996, IIRIRA's transitional provisions governed Lopez's appeal. See Henderson v. INS, 157 F.3d 106, 117 (2d Cir.1998). The relevant transitional provisions, codified in IIRIRA § 309, stated that "[t]here shall be no appeal permitted" of deportation orders based on the alien's commission of an aggravated felony. 157 F.3d at 117. While Lopez was awaiting deportation, this Circuit held that habeas review under 28 U.S.C. § 2241 remained available under § 309's transitional provisions. See Jean-Baptiste v. Reno, 144 F.3d 212, 219 (2d Cir.1998). Thus, once Lopez received a final order of removal, he could have sought judicial review of his deportation order through a habeas petition even though he could not have filed a petition for review. On June 28, 1999, the government deported Lopez to the Dominican Republic. On June 25, 2001, the Supreme Court decided in INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), that the provisions of IIRIRA and AEDPA repealing § 212(c) could not be applied retroactively to preclude § 212(c) relief for an alien who pled guilty to an aggravated felony prior to that section's repeal.4 Id. at 326, 121 S.Ct. 2271. Accordingly, the analysis that led the IJ and the BIA to find Lopez statutorily ineligible for § 212(c) relief was legally incorrect because it erroneously applied IIRIRA and AEDPA retroactively to Lopez's case.
On May 25, 2002, officers of the New York City Police Department arrested Lopez in Queens, New York for, among other things, criminal possession of marijuana. On June 18, 2002, the INS obtained a warrant to arrest Lopez. The complaint and affidavit in support of the arrest warrant alleged that Lopez had illegally reentered the United States after being deported on account of an aggravated felony conviction. On July 16, 2002, an indictment was filed in the United States District Court for the Eastern District of New York, charging Lopez with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2).
On October 30, 2002, Lopez moved to dismiss the indictment by challenging his 1997 deportation order under 8 U.S.C. § 1326(d). The district court denied Lopez's motion on December 13, 2002. The court found that Lopez had exhausted his administrative remedies pursuant to § 1326(d)(1) because he had appealed his order of deportation to the BIA. Pursuant to United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir.2002), however, the district court held that Lopez could not demonstrate, under § 1326(d)(2), that the erroneous retroactive application of the 1996 amendments to the INA to his case improperly denied him the opportunity for judicial review of his deportation order because he had failed to take advantage of the existing opportunity for habeas review. The district court declined to decide whether Lopez had satisfied the third prong of § 1326(d), which requires Lopez to show that his deportation proceeding was fundamentally unfair, but noted that it found "persuasive" the Fifth Circuit's decision in United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir.2002), that no due process violation existed from the denial of § 212(c) relief because such relief was discretionary. Id. at 231.
On March 18, 2003, Lopez entered a conditional plea of guilty, which permitted him to appeal the district court's denial of his motion to dismiss the indictment. Lopez's counsel submitted a sentencing letter on July 8, 2003, that included a request that the district court reconsider its ruling on the motion to dismiss the indictment on the ground that the IJ and the BIA violated Lopez's right to due process by not informing Lopez of his right to file a habeas corpus petition to challenge his removal order. Lopez's counsel made the same argument at Lopez's sentencing on August 1, 2003. The district court rejected counsel's request and sentenced Lopez principally to a fifty-seven month term of imprisonment. This appeal followed.
Section 1326(d) of Title 8 permits an alien charged with illegal reentry under 8 U.S.C. § 1326(a) to challenge the underlying deportation order on which the illegal reentry charge is based. See United States v. Calderon, 391 F.3d 370, 374 (2d Cir.2004). This provision effectively codified the Supreme Court's decision in United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987). See Copeland, 376 F.3d at 66. In Mendoza-Lopez, the Supreme Court held that an alien charged with illegal reentry must have the opportunity to challenge his or her deportation order if those proceedings violated the alien's rights. 481 U.S. at 838-39, 107 S.Ct. 2148. We review de novo the district court's denial of Lopez's motion to dismiss the indictment on the basis of a collateral attack on his deportation order under § 1326(d). United States v. Scott, 394 F.3d 111, 116 (2d Cir.2005).
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