U.S. v. Brown
| Citation | 127 F.Supp.2d 392 |
| Decision Date | 25 January 2001 |
| Docket Number | No. 00-CR-55E.,00-CR-55E. |
| Parties | The UNITED STATES of America v. Rory BROWN. |
| Court | U.S. District Court — Western District of New York |
Denise E. O'Donnell, United States Attorney, Paul J. Campana, Assistant United States Attorney, of counsel, Buffalo, NY, for the government.
Alan S. Hoffman, Buffalo, NY, for defendant.
The abovenamed individual ("the defendant") was indicted April 5, 2000 for having attempted to enter the United States on or about December 3, 1999 after having earlier been deported from the United States, without first having obtained the consent therefor from the Attorney General of the United States — Count I — and for having, at the time and place of said attempt, made a materially false statement — Count II.
On April 21, 2000 the defendant moved to suppress, in his yet-to-be scheduled trial of such charges, evidence of the charged earlier deportation. Such motion was opposed and was argued to the Hon. Leslie G. Foschio, a Magistrate Judge of this Court, who rendered his Report and Recommendation September 1, 2000. Judge Foschio recommended that the defendant's motion should be denied.
The defendant on October 31, 2000 filed Objections to said Report and Recommendation, the prosecution responded thereto November 27, 2000, the matter was argued to the undersigned December 8, 2000 and the defendant filed on December 12, 2000 an Addendum to his Objections.
The undersigned has given full attention and consideration to said Report and Recommendation — and to the written and oral arguments of counsel and thereupon overrules the defendant's aforesaid objections and now affirms Magistrate Judge Foschio's determination and decision.
IT IS SO ORDERED.
REPORT and RECOMMENDATION
This case was assigned to the undersigned on June 9, 2000, by the Hon. John T. Elfvin. The matter is currently before the court for Report and Recommendation on Defendant's pretrial motion to suppress, filed April 21, 2000 (Docket Item No. 10).
Defendant was charged in a three count indictment dated April 5, 2000, with knowingly and unlawfully attempting to enter the United States, without first receiving permission from the United States Attorney General, in violation of 8 U.S.C. § 1326(a) (Count I), and knowingly and willfully making, in connection with the alleged illegal attempted entry, materially false statements to United States Immigration and Naturalization officials, in violation of 18 U.S.C. § 1001(a)(2) (Counts II and III).
Count I of the Indictment is predicated on Defendant's previous deportation, on March 18, 1998, as an aggravated felon based on a 1990 Virginia conviction for robbery, use of a firearm, and abduction. On April 21, 2000, Defendant filed a motion to suppress the use of his previous deportation on due process grounds. The motion was accompanied by a Memorandum of Law (Docket Item No. 10) ("Defendant's Memorandum"). In opposition to the motion, the Government filed, on May 5, 2000, its Response to Defendant's Pretrial Motion (Docket Item No. 11) ("Government's Response"), and the affidavit of Agent Joseph Loiselle of the United States Immigration and Naturalization Service ("INS") (Docket Item No. 12) ("Loiselle Affidavit"). On May 18, 2000, Defendant filed the Reply Affidavit of Alan S. Hoffman, Esq. (Docket Item No. 13) ("Hoffman Reply Affidavit"), in further support of his motion to suppress. Further oral argument was also conducted May 18, 2000.
By orders dated June 7 and June 30, 2000, Defendant was granted further time in which to submit additional papers in support of his motion to suppress. Accordingly, Defendant, on July 26, 2000, filed his own affidavit (Docket Item No. 17) ("Defendant's Affidavit"), and the Affidavit of Alan S. Hoffman in Support of Defendant's Motion to Suppress Use of Prior Deportation Proceeding (Docket Item No. 18) ("Hoffman Affidavit"). On July 28, 2000, Defendant filed a Memorandum of Law in Further Support of Suppression (Docket Item No. 19) ("Defendant's Memorandum in Further Support of Suppression").
On August 14, 2000, the Government, in further opposition to Defendant's motion to suppress, filed its Second Response to Defendant's Pretrial Motion (Docket Item No. 20) ("Government's Second Response"), an additional affidavit by Loiselle (Docket Item No. 21) ("Loiselle's Second Affidavit"), and the affidavit of INS Agent Richard L. Merce (Docket Item No. 22) ("Merce Affidavit"). Oral argument was deemed unnecessary.
Based on the following, Defendant's motion to suppress use of his previous deportation should be DENIED.
Defendant, Rory Ephriam Brown ("Brown"), was born in Toronto, Canada on May 14, 1972, and is a Canadian citizen. Defendant's Memorandum at 1; Government's Response at 3; Defendant's A-File, at 221; and Defendant's Affidavit, ¶ 3. On January 1, 1982, Brown, then nine years old, traveled with his mother, Jacqueline Collington, and her five other children, to the United States, entering as a nonimmigrant visitor at Niagara Falls, New York.2 Loiselle Affidavit, ¶ 3; Defendant's Affidavit, ¶ 4; Defendant's Memorandum at 1; Government's Response at 3; Defendant's Memorandum in Further Support of Suppression at 7. Brown continued to live in the United States with his family where he attended school. Defendant's Memorandum at 2; Defendant's Affidavit, ¶¶ 4, 7.
In 1988, Collington, applied to change her status in the United States to that of Temporary Resident. Loiselle's Second Affidavit, ¶ 3. Collington indicated in her application that she was also seeking to adjust the status of the oldest three of her six children, but not the youngest three, one of whom was Brown. Loiselle's Second Affidavit, ¶ 3; Collington's A-File at 20.3 Collington became a temporary resident of the United States when her application was granted on May 3 1988. Defendant's Memorandum in Further Support of Suppression at 9.
In 1989, Collington applied to have her status adjusted from temporary to permanent resident. Loiselle's Second Affidavit, ¶ 4; Hoffman Reply Affidavit, ¶ 5. That application was granted on November 3, 1989. Id. As the child of a lawful permanent resident, Brown, age 17, was then eligible to apply for permanent residency in the United States, id, although he never did.
In 1989, Brown was arrested in Virginia in connection with an armed robbery, for which he was convicted, in 1990, of robbery, use of a firearm, and abduction. Brown was sentenced to a term of incarceration of 30 years.4 Government's Response at 4, 11; Government's Second Response at 2. It is undisputed that the crimes for which Brown was convicted qualify as "aggravated felony" offenses under § 101(a)(43) of the Immigration and Nationality Act ("the INA" or "the Act"), 8 U.S.C. § 1101(a)(43). Loiselle Affidavit, ¶ 4.
Collington became a naturalized United States citizen on August 30, 1996. Defendant's Memorandum at 12; Loiselle's Second Affidavit, ¶ 5. The Government maintains, and Brown does not dispute, that Collington's changes in her residency status had no effect on Brown's immigration status. Loiselle's Second Affidavit, ¶ 6; See Defendant's Memorandum in Further Support of Suppression at 8. Rather, neither Brown, nor anyone else acting on his behalf, ever filed an application or petition to adjust Brown's immigration status in the United States from the non-immigrant visitor status assigned when he first entered the United States on January 1, 1982, Id., ¶¶ 6-7, which had long since expired. Merce Affidavit, Exhibit B.
On December 18, 1997, Brown, who remained incarcerated in Virginia based on his 1990 Virginia conviction, was granted parole, although Brown was, apparently, not informed of this fact at that time. Defendant's Affidavit, ¶ 9. On January 14, 1998, deportation proceedings under 8 U.S.C. § 1229a were initiated against Brown when INS Special Agent Richard L. Merce ("Agent Merce"), arrested Brown at Nottoway Correctional Facility in Virginia, and served him with a Notice of Rights and Request for Disposition Form I-826 ("Form I-826"). Merce Affidavit, Exhibit D. Form I-826 advised Brown that he was entitled to a hearing before an Immigration Judge ("IJ"), and that Brown would be provided, upon his request, with a list of organizations that would provide legal representation to Brown at little or no cost to him.5 Merce Affidavit, ¶¶ 1, 3 and Exhibit A.
Based on his January 14, 1998 interview of Brown, Agent Merce learned that Brown's mother became a naturalized United States citizen in 1996, and had become a lawful permanent resident in 1989, causing Merce to initially believe that Brown may have some lawful status in the United States. Defendant's Memorandum at 9; Defendant's Affidavit, ¶ 11; Merce Affidavit, ¶ 5. Brown maintains he advised Merce that he was seeking advice as to how he could remain in the United States with his family. Defendant's Affidavit, ¶ 11. According to Brown, Agent Merce advised him that if Brown agreed to everything presented by the INS, Brown would be paroled to the INS and could seek permission to remain in the United States, and that Brown relied on such statements in complying with subsequent requests by the INS agents. Defendant's Affidavit, ¶ 11. Although the Notice of Rights included a box labeled "REQUEST FOR DISPOSITION" in which Brown could request a hearing before an IJ to determine whether Brown could remain in the United States, Brown did not select that option, nor either of the other two options listed. Id., ¶ 3; Merce Affidavit, Exhibit A. Rather, Brown simply signed the form. Id. Brown does not claim he is unable to speak or read English.
On January 23, 1998, Agent Merce served Brown with a Notice to Appear, INS Form I-862 ("Form I-862"), signed by the Norfolk, Virginia INS Officer in Charge, William W. Bittner ("Agent Bittner"). Merce Affidavit, ¶ 4...
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