U.S. v. Fares, 1196
| Citation | 978 F.2d 52 |
| Decision Date | 16 October 1992 |
| Docket Number | No. 1196,D,1196 |
| Parties | UNITED STATES of America, Appellee, v. Yassem FARES, also known as Yasser Fares, Defendant-Appellant. ocket 91-1722. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Martin Coffey, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty. E.D. New York, Peter A. Norling, Asst. U.S. Atty., Brooklyn, N.Y., on the brief), for appellee.
Abraham L. Clott, New York City (The Legal Aid Society, Federal Defender Services Appeals Unit, on the brief), for defendant-appellant.
Before: KEARSE and MAHONEY, Circuit Judges, and RESTANI, Judge *.
Defendant Yassem Fares, a Lebanese national who was deported from the United States in 1990, appeals from a final judgment of the United States District Court for the Eastern District of New York, convicting him, following a jury trial before Gerald E. Rosen, Judge **, of unlawful reentry into the United States, in violation of 8 U.S.C. § 1326(a) (1988 & Supp. II 1990). Fares was sentenced principally to six months' imprisonment, to be followed by a one-year term of supervised release. On appeal, he contends principally that the 1990 order of deportation was an invalid basis for his conviction because the immigration law judge ("ILJ") who entered that order did not adequately inform him of his right to appeal from the deportation decision or of the "ramifications" of voluntary departure as an alternative to deportation. Fares also contends that in the present case he is the victim of selective prosecution and that the district court erred in denying his motion to dismiss on that ground without further discovery and an evidentiary hearing. For the reasons below, we reject Fares's contentions and affirm the judgment.
Fares entered the United States in November 1988 on a student visa, with the stated purpose of attending college in Staten Island, New York. His visa authorized him to remain so long as he was a student. However, he never enrolled in college in the United States. As detailed below, he was deported in 1990 after his continued presence as a nonstudent apparently had come to the attention of the Immigration and Naturalization Service ("INS") as a result of New York State assault charges filed against him in late 1989.
On December 6, 1989, Fares, his brother Malik, and a cousin became involved in a verbal confrontation with employees of a New York City municipal agency, leading to the ejection of Fares and his companions from the agency offices. Outside, the exchange escalated into a physical altercation, during which Malik slashed two of the agency employees with a knife, while Fares himself used a cane to beat another employee unconscious. One victim reported that during these events Fares and his companions made statements indicating that they were connected with "Hizballah," a Lebanese terrorist organization. Fares, Malik, and their cousin were apprehended and arrested on state charges of felonious assault.
On December 8, 1989, INS issued a warrant for Fares's arrest, seeking his deportation on the ground that he had been admitted on a student visa and was not a student. INS also sought to deport Malik and the cousin on like grounds. Fares, arrested later that day, signed a sworn statement conceding that he had never registered for school. He said he had not become a student because he had no money and had instead supported himself by working as a street peddler.
Prior to the deportation hearing, negotiations were held between INS and the attorney representing Fares and his companions as to the possibility of having the case disposed of by their voluntary departure from the United States. INS imposed several conditions on its offer of voluntary departure, however, including the conditions that Fares et al. bear the expense of their departures and go to a country other than Canada. Fares and his companions rejected the offer, indicating their intention instead to seek political asylum.
On February 9, 1990, ILJ Howard Cohen held a deportation hearing, at which Fares and his companions appeared pro se. Advised by the ILJ that they were entitled to JUDGE: .... Now let the record show that an off the record discussion of some length was held by and between government attorney and the aliens through the interpreter and the aliens were explained that they have the right to apply for voluntary departure from the United States meaning that they will pay their own way out of the United States and after a discussion they decided that they would rather not and that they would just take orders of deportation to Lebanon. Is that correct?
KHEIR [interpreter]: Yes it took place.
(February 9, 1990 Deportation Hearing Transcript ("Tr.") at 5-6.)
An order for Fares's deportation was entered on February 9, 1990. The order stated that Fares had waived his right to appeal from the deportation decision. By letter dated February 14, 1990, INS sent Fares formal notice of the deportation order; the letter included a warning that, should he ever wish to return to the United States, Fares would have to obtain permission from INS or an American Consular Office to return, and that if he returned within five years without permission, he could be prosecuted for violating 8 U.S.C. § 1326. Fares was deported to Lebanon on March 12, 1990. The state assault charges against him had been dismissed in anticipation of his deportation.
In February 1991, agents of the Federal Bureau of Investigation ("FBI"), upon examining certain surveillance photos taken in Brooklyn, New York, discovered that Fares had reentered the United States. He was arrested by FBI and INS agents in April 1991. Upon his arrest, Fares claimed to have reentered using a valid passport. After disclosure that he had no such passport, he was charged in a one-count indictment with having reentered the United States without permission after having previously been deported, in violation of 8 U.S.C. § 1326(a).
Prior to trial, Fares, represented by assigned counsel, moved to dismiss the indictment on the grounds (1) that his 1990 deportation could not form a proper predicate for the present prosecution because his due process rights had been violated by, inter alia, the failure of the ILJ to advise him of his rights; and (2) that the present prosecution was brought because of his membership in Hizballah and thus violated his First Amendment rights and his right to be free of selective prosecution. As discussed in greater detail below, District Judge Carol B. Amon, to whom the case was initially assigned, denied both motions.
In August 1991, Fares was tried before Judge Rosen and a jury. The jury found Fares guilty of unlawfully reentering the United States after having been deported, in violation of § 1326(a). Judge Rosen sentenced him as indicated above, and this appeal followed.
Fares contends that the 1990 deportation order constitutes an invalid basis for his conviction under 8 U.S.C. § 1326(a) because the ILJ did not adequately inform him of (a) his right to appeal from the deportation decision or (b) the desirability of voluntary departure as an alternative to deportation. The district court concluded that Fares had been adequately informed as to both the voluntary departure option and the right to appeal, and that any flaw in the information given him was not prejudicial. Though we conclude that Fares may not have had his right to appeal adequately explained, thereby giving him the right to challenge the order of deportation collaterally in this prosecution, we also conclude that he is not entitled to have the deportation order invalidated because the record does not indicate that he was prejudiced by deprivation of his right to appeal.
In general, where a determination in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be available some meaningful review of the administrative proceeding. See, e.g., United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 2154-55, 95 L.Ed.2d 772 (1987); Estep v. United States, 327 U.S. 114, 121-22, 66 S.Ct. 423, 427, 90 L.Ed. 567 (1946). In the deportation context, this principle is reflected in federal regulations requiring that an alien threatened with deportation be given written notice that he has a right to appeal. See 8 C.F.R. § 242.1(c) (1992) (); see also id. § 242.16(a) (...
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U.S. Chalmers
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