Janvier v. U.S., No. 627

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtBefore OAKES and KEARSE, Circuit Judges, and BARTELS; KEARSE; BARTELS
Citation793 F.2d 449
PartiesLyonel JANVIER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 85-2306.
Decision Date05 June 1986
Docket NumberNo. 627,D

Page 449

793 F.2d 449
Lyonel JANVIER, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
No. 627, Docket 85-2306.
United States Court of Appeals,
Second Circuit.
Argued Dec. 20, 1985.
Decided June 5, 1986.

Page 450

Amy Eppler, Law Student Intern, New Haven, Conn. (Mary A. McCarthy, Miriam Berkman, Stephen Wizner, Sally Zanger, Bob Solomon, Jerome N. Frank Legal Services Organization, New Haven, Conn., on brief), for plaintiff-appellant.

George A. Yanthis, Asst. U.S. Atty., Albany, N.Y. (Frederick J. Scullin, Jr., U.S. Atty., for N.D.N.Y., Albany, N.Y., on brief), for defendant-appellee.

Before OAKES and KEARSE, Circuit Judges, and BARTELS, District Judge. *

KEARSE, Circuit Judge:

Plaintiff Lyonel Janvier, an alien who has served a term of imprisonment for smuggling and counterfeiting offenses, appeals from an order of the United States District Court for the Northern District of New York, Roger J. Miner, then-District Judge, denying his motion pursuant to 28 U.S.C. Sec. 2255 (1982) to vacate his sentence. Janvier contended that he had been deprived of his Sixth Amendment right to effective assistance of counsel at his sentencing by reason of his counsel's failures (1) to request, pursuant to 8 U.S.C. Sec. 1251(b) (1982), that the sentencing judge recommend, either at sentencing or within 30 days thereafter, that Janvier not be deported as a result of his convictions, and (2) to advise Janvier that he would be deportable as a result of his convictions unless the sentencing judge recommended against deportation not later than 30 days after sentencing. The court denied the Sec. 2255 motion on the ground that the alleged deprivation of the effective assistance of counsel did not occur at a critical stage of the criminal prosecution. On appeal, Janvier contends that this ruling was erroneous. We agree, and we vacate the order and remand for further proceedings.

I. BACKGROUND

Janvier, a Haitian citizen, is a permanent resident alien who entered the United States lawfully in February 1981. In October 1982, he was arrested at the Canadian border and was charged with possession of $20,340 in counterfeit United States currency and of smuggling that currency into the United States, in violation of 18 U.S.C. Secs. 472 and 545 (1982). Following a jury trial, Janvier was convicted as charged and was sentenced on January 21, 1983, to a total of four years' imprisonment. Janvier served the required portion of his prison term and was paroled in 1984.

As a result of his convictions and sentencing, Janvier apparently became subject to deportation pursuant to 8 U.S.C. Sec. 1251(a)(4) (1982), which provides for the deportation, upon order of the Attorney General of the United States, of any alien who "is convicted of a crime involving moral turpitude committed within five years after entry" into the United States and is sentenced to or serves a prison term of one year or longer. Accordingly, upon his parole Janvier was released into the custody

Page 451

of the Immigration and Nationalization Service ("INS") for deportation.

Section 1251(b) of 8 U.S.C., however, provides that Sec. 1251(a)(4) is inapplicable if the sentencing judge, either at the time of sentencing or within 30 days thereafter, and after giving due notice to the appropriate authorities, recommends against deportation. Janvier apparently learned of the thrust of Sec. 1251 only after the expiration of the 30-day period in which Sec. 1251(b) relief against deportation could be obtained, and he filed his present motion for Sec. 2255 relief after his release from prison. In support of his motion, he submitted the May 25, 1984 affidavit of Thomas J. Spargo, Esq., his appointed counsel at trial and sentencing.

Spargo stated that he had been unaware of Sec. 1251(b) when he represented Janvier. Thus, Spargo never asked the sentencing judge to recommend against the deportation of Janvier. Nor did he advise Janvier that such relief against deportation might be available. Indeed, Spargo was unaware of Sec. 1251(a)(4), and believes he may even have communicated to Janvier the opinion that the convictions would not make Janvier deportable. Relying on these assertions, which the district court noted were undisputed, Janvier contended that he had been deprived of his Sixth Amendment right to the effective assistance of counsel at sentencing. He requested that his 1983 sentence be vacated, that he be resentenced with the assistance of new counsel, and that the court hold a hearing at which he could present evidence in support of his request for a judicial recommendation against the use of his convictions as grounds for his deportation.

In a Memorandum-Decision and Order ( "Decision" ) dated July 31, 1985, the district court declined to reach the question of whether counsel's assistance had been defective, ruling instead that the alleged ineffective assistance had occurred at a time other than a critical stage of a criminal proceeding. First, while recognizing that sentencing is such a critical stage and that a defendant has a Sixth Amendment right to the effective assistance of counsel at sentencing, the court reasoned that since Sec. 1251(b) allows a recommendation against deportation to be made up to 30 days after sentencing, "Sec. 1251(b) relief exists independent of any sentence imposed upon a criminal defendant, and a failure by counsel to request it cannot be regarded as ineffective assistance at the sentencing phase, whether or not the application could have been made at the time of sentence." Decision at 5 (footnote omitted). Second, the court held that counsel's failure to pursue Sec. 1251(b) relief after sentence had been imposed could not be the basis for an ineffective assistance challenge, since the Sixth Amendment right to counsel attaches only to criminal proceedings, and deportation is a civil proceeding. Thus concluding that Janvier had not been denied effective assistance of counsel at a critical stage of his criminal prosecution and that his sentence was therefore not " 'imposed in violation of the Constitution or laws of the United States,' " Decision at 7 (quoting Sec. 2255), the district court denied Janvier's motion. This appeal followed.

II. DISCUSSION

As the district court recognized, it is well established that a defendant to a criminal prosecution has a Sixth Amendment right to the effective assistance of counsel at all critical stages of the prosecution where his substantial rights may be affected, and that sentencing is one such stage. Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256, 19 L.Ed.2d 336 (1967); see McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). It is similarly established that deportation proceedings are civil proceedings to which the constitutional protections applicable to criminal prosecutions do not apply. Abel v. United States, 362 U.S. 217, 237, 80 S.Ct. 683, 696, 4 L.Ed.2d 668 (1960) ( "deportation proceedings are not subject to the constitutional safeguards for criminal prosecutions" ). The principal question before us on this appeal thus is whether the recommendation envisioned by

Page 452

Sec. 1251(b) should be deemed part of the sentencing stage of the criminal prosecution rather than part of the ensuing deportation proceedings.

A. The Relationship of Sec. 1251(b) to Sentencing

Section 1251 of 8 U.S.C. provides, in pertinent part, as follows:

(a) General classes

Any alien in the United States ... shall, upon the order of the Attorney General, be deported who--

....

(4) is convicted of a crime involving moral turpitude committed within five years after entry and either sentenced to confinement or confined therefore [sic] in a prison or corrective institution, for a year or more ...;

....

(b) Nonapplicability of subsection (a)(4)

The provisions of subsection (a)(4) of this section respecting the deportation of an alien convicted of a crime or crimes shall not apply ... 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 [INS], and prosecution authorities, who shall be granted an opportunity to make representations in the matter.

In concluding that Janvier was not denied effective assistance of counsel at a critical stage of his prosecution, the district court focused principally on Sec. 1251(b)'s implicit permissiveness with respect to the time within which a request for 1251(b) relief may be made. We believe that the proper focus is not on the timing of the request but on the required timing of the recommendation; and, looking to a confluence of factors including the language, judicial interpretation, and legislative history of the section with respect to the identity of the decisionmaker,...

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63 practice notes
  • Verduzco v. State, CC CV110467
    • United States
    • Supreme Court of Oregon
    • July 30, 2015
    ...Amendment. Id. at 362–63, 130 S.Ct. 1473 ; see United States v. Castro, 26 F.3d 557 (5th Cir.1994) ; 357 Or. 573Janvier v. United States, 793 F.2d 449 (2d Cir.1986).19 Similarly, as the 355 P.3d 914Court observed, “the weight of prevailing professional norms supports the view that counsel m......
  • U.S. v. Bodre, No. 91-1134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 31, 1991
    ...In supporting her argument that the JRAD was a part of criminal sentencing, Appellant relies heavily upon Janvier v. United States, 793 F.2d 449 (2d Cir.1986), in which the Second Circuit held that JRADs were part of the sentencing stage of a criminal prosecution and that the Sixth Amendmen......
  • Padilla v. Ky., No. 08-651
    • United States
    • United States Supreme Court
    • March 31, 2010
    ...authority to decide whether a particular conviction should be disregarded as a basis for deportation, " Janvier v. United States, 793 F.2d 449, 452 (CA2 1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offense......
  • United States v. Juarez-Escobar, Criminal No. 14–0180.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • December 16, 2014
    ...authority to decide whether a particular conviction should be disregarded as a basis for deportation,” Janvier v. United States, 793 F.2d 449, 452 (2nd Cir.1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offe......
  • Request a trial to view additional results
63 cases
  • Verduzco v. State, CC CV110467
    • United States
    • Supreme Court of Oregon
    • July 30, 2015
    ...Amendment. Id. at 362–63, 130 S.Ct. 1473 ; see United States v. Castro, 26 F.3d 557 (5th Cir.1994) ; 357 Or. 573Janvier v. United States, 793 F.2d 449 (2d Cir.1986).19 Similarly, as the 355 P.3d 914Court observed, “the weight of prevailing professional norms supports the view that counsel m......
  • U.S. v. Bodre, No. 91-1134
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 31, 1991
    ...In supporting her argument that the JRAD was a part of criminal sentencing, Appellant relies heavily upon Janvier v. United States, 793 F.2d 449 (2d Cir.1986), in which the Second Circuit held that JRADs were part of the sentencing stage of a criminal prosecution and that the Sixth Amendmen......
  • Padilla v. Ky., No. 08-651
    • United States
    • United States Supreme Court
    • March 31, 2010
    ...authority to decide whether a particular conviction should be disregarded as a basis for deportation, " Janvier v. United States, 793 F.2d 449, 452 (CA2 1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offense......
  • United States v. Juarez-Escobar, Criminal No. 14–0180.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • December 16, 2014
    ...authority to decide whether a particular conviction should be disregarded as a basis for deportation,” Janvier v. United States, 793 F.2d 449, 452 (2nd Cir.1986). Thus, from 1917 forward, there was no such creature as an automatically deportable offense. Even as the class of deportable offe......
  • Request a trial to view additional results

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