U.S. v. Anderson, IP 99-30 CR-01 B/F.

• Decision Date: 24 September 1999
• Docket Number: No. IP 99-30 CR-01 B/F.,IP 99-30 CR-01 B/F.
• Citation: 64 F.Supp.2d 870
• Parties: UNITED STATES of America, Plaintiff, v. David Rafael ANDERSON, Defendant.
• Court: U.S. District Court — Southern District of Indiana

64 F.Supp.2d 870

UNITED STATES of America, Plaintiff, v. David Rafael ANDERSON, Defendant.

No. IP 99-30 CR-01 B/F.

United States District Court, S.D. Indiana, Indianapolis Division.

September 24, 1999.

Donna R. Eide, Assistant U.S. Attorney, Indianapolis, IN, for plaintiff.

Jim McKinley, Federal Community Defenders Office, Indianapolis, IN, for defendant.

ENTRY DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT

BARKER, Chief Judge.

Defendant, David R. Anderson ("Anderson"), has been indicted on the charge that as a deported alien he unlawfully entered the United States in violation of 8 U.S.C. § 1326. Anderson seeks to collaterally attack his prior two deportation orders, moving this Court to dismiss the Indictment on the grounds that he allegedly failed to receive adequate judicial review of his prior deportations orders, which was and is a violation of his Fifth Amendment right to due process. The United States of America ("the government") rejoins that Anderson received all the process to which he was constitutionally entitled in his previous deportation hearings and that those proceedings were fundamentally fair. For the reasons discussed below, we DENY Anderson's motion to dismiss the Indictment.

Background

Defendant Anderson was born in Honduras in 1956. He entered the United States as a legal permanent resident in November 1964, dropped out of school in the early seventies and "led a life of juvenile delinquency" from 1971 to 1982. Gov't Ex. 4 (IJ decision, Oct. 22, 1990, at 3). In 1982, Anderson was convicted in Louisiana on charges of armed robbery and attempted murder, receiving two concurrent twelve-year sentences of imprisonment in Louisiana State Prison. See Gov't Ex. 5 (BIA decision, Nov. 29, 1993, at 2). On a separate occasion in 1982, Anderson also was convicted of simple robbery and sentenced to a seven-year term of imprisonment. Id.

On July 14, 1989, approximately two weeks before the Louisiana State Prison was to discharge Anderson from custody, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against Anderson by issuing him a Notice of Deportability. See Parties' Factual Stipulation ("Stip.") ¶ 5. A deportation hearing commenced in August 1989, was continued twice, and ultimately concluded on October 22, 1990. Id. ¶ 7. Counsel represented Anderson at all stages of the deportation proceedings. Id. ¶ 6.

At the deportation hearing, Anderson conceded that he was deportable. Id. ¶ 8. However, he sought a discretionary "waiver of inadmissibility" under section 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(c), which at that time permitted the Attorney General (or her delegate), to exercise discretion to afford an excludable alien relief from deportation based on equity and special circumstances. Id. On October 22, 1990, Immigration Judge McHugh ("IJ") granted Anderson the requested relief from deportation under section 212(c), finding, among other things, that Anderson's long period of lawful residence in the United States from a young age, extensive family ties, coupled with the effect that his deportation would have on the emotional problems of his sons and the serious illnesses of both his parents, created unusual and outstanding equities that offset his criminal record. See Gov't Ex. 4; Stip. ¶ 9.

The INS appealed the IJ's decision to the Board of Immigration Appeals ("BIA"), which reversed the IJ's decision on November 29, 1993, and ordered Anderson's deportation. See Gov't Ex. 5. The BIA conducted a de novo review of the IJ's findings and concluded that Anderson's circumstances did "not merit section 212(c) relief in the exercise of discretion." Id. at 4. The BIA agreed with the IJ that outstanding equities characterized Anderson's case, but found those equities outweighed by serious adverse factors and evidence of Anderson's undesirability as a lawful permanent resident. Id. at 5. The BIA initially noted that Anderson's deportability, which he failed to contest, had been established by clear, unequivocal, and convincing evidence. Id. at 2. In comparing the equities and Anderson's history of criminal activity, the BIA found that Anderson had a twenty-year history of drug abuse, that at least sixteen of his twenty-nine years in the United States were spent either committing crimes or serving time in prison for those crimes, and that the IJ erroneously characterized the majority of these crimes as having occurred during Anderson's juvenile years, when in fact he committed the most serious crimes after the age of twenty-one. Id. at 4-5. The BIA also assessed Anderson's family history, such as his failure to provide child support for his children, and his potential for rehabilitation, concluding that the balance of the relevant factors required the denial of discretionary relief. In a brief dissent, Lawrence Di-Costanzo, temporary BIA member, believed that the IJ properly exercised his discretion in awarding Anderson relief from deportation.

On December 14, 1993, Anderson's counsel filed a Petition for Judicial Review of the BIA decision with the Court of Appeals for the Fifth Circuit. See Stip. ¶ 12. On or about February 17, 1994, INS authorities arrested Anderson pursuant to the BIA's November 1993 deportation order and detained him in Orleans Parish Prison pending deportation. Id. ¶ 13. Anderson's Petition for Judicial Review of the BIA decision remained pending, with Anderson scheduled to file his brief in support thereof sometime in early March 1994. On February 17, 1994, Anderson's counsel moved the Fifth Circuit to stay Anderson's deportation, filing a "Motion for Emergency Confirmation of Stay of Deportation." Id. ¶ 14. That same day, according to the parties and the Fifth Circuit's docket sheet, the INS opposed the motion and the Fifth Circuit denied Anderson's request to stay deportation. See Gov't Ex. 6; Stip. ¶ 15. On February 22, 1994, INS deported Anderson to Honduras.

On February 28, 1994, INS moved the Fifth Circuit to dismiss Anderson's Petition for Judicial Review of the BIA decision on the grounds that Anderson had departed the country, asserting that the Fifth Circuit lacked subject matter jurisdiction to hear the dispute under 8 U.S.C. § 1105a(c) (since repealed and recodified). See Stip. ¶ 17. On March 8, 1994, Anderson's counsel filed his Brief for Appellant with the Fifth Circuit, asserting, among other things, that the BIA decision regarding Anderson's deportation was arbitrary, capricious, and an abuse of the BIA's discretion. On March 22, 1994, the Fifth Circuit granted INS' motion to dismiss Anderson's Petition for Judicial Review of the BIA decision on jurisdictional grounds. Id. ¶ 19.

Undeterred by his deportation, Anderson reentered the United States no later than March 1995 without inspection or permission by immigration authorities or the Attorney General. Prior to returning to the United States, Anderson did not otherwise legally challenge the Fifth Circuit's decisions to deny his request for an emergency stay and to dismiss his petition for judicial review of the BIA's decision. Instead, Anderson obtained a social security card from an unknown source, visited the Louisiana Division of Motor Vehicles, and falsely represented in an application for a Louisiana identification card that the Social Security Administration had assigned him the social security number. See Gov't Ex. 10 (Gov't Bill of Information). He also falsely represented that his name was Jackie D. Smith, a ploy that nicely complimented his new social security number — Anderson (a.k.a.Smith) received his identification card and temporarily avoided detection by immigration authorities.

Anderson's run of luck, however, was short-lived. On May 12, 1995, United States Border Patrol agents encountered Anderson at a residence in Louisiana after learning from an informant that Anderson had reentered the country without authorization. They discovered a number of false documents in Anderson's possession, including his fraudulently-obtained identification card. Id. In June 1995, a federal grand jury sitting in the United States District Court for the Middle District of Louisiana indicted Anderson on the charge of unlawful entry following deportation, in violation of 8 U.S.C. § 1326. The government dismissed the section 1326 violation in exchange for Anderson's plea of guilty to unlawful use of social security number in violation of 42 U.S.C. § 408(a)(7)(B). Id. (Grand Jury Indictment). On November 3, 1995, Anderson received a twelve-month sentence of imprisonment pursuant to the plea agreement. See Gov't Ex. 11; Stip. ¶ 22

On October 21, 1996, the INS instituted deportation proceedings against Anderson for the second time with the same result. The INS' allegations supporting deportability included, among other things, Anderson's previous convictions for attempted murder, armed robbery, and simple robbery. See Gov't Exs. 11-12. On March 25, 1997, an IJ ordered Anderson's deportation, stating in is order that "Respondent has made no application for relief from the deportation" and that Anderson "WAIVED" appeal. Gov't Ex. 14. Anderson agrees that he declined to appeal the IJ's deportation decision. See Gov't Ex. 14; Stip. ¶ 24. On April 8, 1997, the INS deported Anderson pursuant to a deportation warrant issued on March 28, 1997. Anderson's notice of deportation, which he signed in the presence of a witness, advised him (in both Spanish and English) that "[s]hould you wish to return to the United States you must write this office or the United States Consular Office nearest your residence abroad as to how to obtain permission to return after deportation." Gov't Ex. 15. The document further warned that "[p]ermission must be obtained from the Attorney General if you are seeking admission within five (5) years of deportation or removal" and that reentry without such permission would result in imprisonment for up to fifteen years. Id...