U.S. v. Copeland

• Decision Date: 16 July 2004
• Docket Number: No. 02-1704.,02-1704.
• Citation: 376 F.3d 61
• Parties: UNITED STATES of America, Appellant, v. Richard COPELAND, also known as Jamal Owen, Defendant-Appellee,
• Court: U.S. Court of Appeals — Second Circuit

376 F.3d 61

UNITED STATES of America, Appellant, v. Richard COPELAND, also known as Jamal Owen, Defendant-Appellee,

No. 02-1704.

United States Court of Appeals, Second Circuit.

Argued: August 28, 2003.

Decided: July 16, 2004.

Appeal from the United States District Court for the Eastern District of New York, Jack B. Weinstein, J Steven H. Breslow, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney and Emily Berger, Assistant United States Attorney, on the brief), Brooklyn, New York, for Appellant.

David A. Lewis (Leonard F. Joy and Michael P. Padden, on the brief, Barry Leiwant, current counsel), The Legal Aid Society Federal Defender Division, New York, New York, for Defendant-Appellee.

Before: WINTER, CALABRESI, and KATZMANN, Circuit Judges.

WINTER, Circuit Judge.

The government appeals from Judge Weinstein's dismissal of an indictment charging Richard Copeland with illegal reentry into the United States after deportation. See 8 U.S.C. § 1326(a). Copeland collaterally attacked the validity of his deportation order as provided under Section 1326(d), and the district court held that his deportation was not a valid element of the criminal reentry charge because the underlying deportation hearing was not consistent with due process. We agree that most of the requirements of Section 1326(d) have been met. However, we remand for a hearing and findings on whether the defects in Copeland's deportation hearing caused him prejudice.

BACKGROUND

a) Copeland's History

Copeland, a Jamaican citizen, had been adopted by his grandmother, a naturalized citizen of the United States, in 1978. He came to the United States at age 12 in 1982 and lived in this country as a lawful permanent alien until he was deported in 1998. The district court found that at the time of his deportation, Copeland was living with and supporting his two children, ages 11 and 4, and their mother, all of whom are citizens of the United States.

Copeland was convicted of four New York state crimes prior to his deportation. Upon each arrest, he gave the police false names, social security numbers, addresses, and/or birth dates. On May 18, 1988, he was arrested for grand larceny of a car, criminal possession of stolen property, and unauthorized use of a vehicle. Based on this arrest, Copeland ultimately pled guilty to disorderly conduct and was sentenced to three days in prison. On March 22, 1989, Copeland was arrested and charged with criminal possession of a controlled substance in the second degree and criminal possession of a weapon in the third degree. Copeland failed to appear on the date set by the court, and a bench warrant for his arrest was issued. While the warrant in the weapons case was still out, Copeland was arrested under an alias on February 9, 1993, for attempted criminal sale of a controlled substance — crack cocaine — in the third degree. Still under the alias, Copeland pled guilty to this charge and was sentenced to a year in prison but apparently did not begin to serve his sentence.¹

The warrant on the weapons charge was returned after yet another arrest on September 18, 1995. At that time Copeland pled guilty under his own name to criminal possession of a weapon in the third degree for the 1989 arrest and was sentenced to a year in prison on that charge. The conduct leading to Copeland's September 16, 1995 arrest involved serious violence. He pulled a man from a car at gunpoint, demanded money, and shot him in the throat when the man tried to escape. The victim was paralyzed by the shot. Copeland was charged with attempted murder, first degree robbery, first and fourth degree assault, criminal possession of a weapon in the second and third degrees, and menacing in the second degree. On October 27, 1995, Copeland pled guilty to criminal possession of a weapon in the second degree based on these charges and was sentenced to an 18 to 54 month term of imprisonment. Copeland served his three felony sentences concurrently, from October 13, 1995 to September 23, 1998.

b) The Deportation

While Copeland was incarcerated on his various sentences, the INS initiated deportation proceedings based on his conviction of the February 9, 1993 attempted criminal sale of a controlled substance. 8 U.S.C. § 1227(a)(2)(B)(i) and (a)(2)(A)(iii). A deportation hearing was held before an Immigration Judge ("IJ") on August 7 and November 27, 1996. At the August hearing, the IJ began by informing Copeland of his right to an attorney and to appeal any decision by the IJ within 30 days of that decision. The IJ also told Copeland that because he was an alien, he would be deportable if the INS proved that he had been convicted of attempted sale of a controlled substance. The IJ stated that "[u]nder current law there is no waiver for deportability if you're, had been convicted of, of violation of a controlled substance law," because "the law changed April 1996 a couple a months ago ... and the new law says if you have a conviction for narcotics you're not eligible for any form of relief."

Copeland seemingly tried to ask whether the date of his conviction affected his eligibility for waiver:

COPELAND: So, so that law it, it all depends umm ... if it was before April 19...

JUDGE: It doesn't depend upon when the crime was com...

COPELAND: Oh?

JUDGE: No! No! Goes by whether ... if you have COPELAND: ... (unintelligible) ... what's in your record.

JUDGE: Right. Alright, that's what the law says now. As if and it says that. Okay? But speak to lawyers about it....

The IJ then adjourned the hearing for three months to give Copeland time to find an attorney.

When the hearing resumed on November 27, 1996, Copeland appeared pro se. Copeland admitted that he was not a citizen of the United States, that he was a citizen of Jamaica, and that he had been convicted of attempted criminal sale of a controlled substance on September 27, 1993.² The IJ found Copeland "deportable from the United States as charged." The following colloquy then occurred:

Judge: There's no relief available to you anymore because the law changed in April. And the new law said that if you have a conviction for a controlled substances [sic] you're deportable and there's no relief. So I feel I have no alternative but to order you deported to Jamaica. You could accept this decision as a final decision or you can appeal my decision. Which would you prefer to do?

COPELAND: I will accept this decision.

Copeland did not file an appeal with the Board of Immigration Appeals ("BIA") within the 30 day time limit for such filings. Copeland remained in the United States, however, because of his incarceration in New York.

The "new law" referred to by the IJ was actually two laws: the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, enacted on April 24, 1996, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546, enacted on September 30, 1996 (collectively, "the 1996 Amendments"), which amended the Immigration and Nationality Act ("INA"), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. Prior to these amendments, the Attorney General had 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. See 8 U.S.C. § 1182(c) (repealed 1996); INS v. St. Cyr, 533 U.S. 289, 296-97, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). AEDPA amended Section 1182(c) to render aliens who pled guilty to aggravated felonies ineligible for Section 212(c) discretionary relief from deportation. AEDPA § 440(d). IIRIRA then repealed § 212(c), see IIRIRA § 304(b), replacing it with a new section giving the Attorney General authority to cancel removal for only a narrowly defined class of inadmissible or deportable aliens, not including anyone "convicted of any aggravated felony," id. (creating 8 U.S.C. § 1229b). At the time of Copeland's deportation hearing, the BIA's position was that the 1996 Amendments applied retroactively to aliens, like Copeland, who had pled guilty to aggravated felonies prior to their enactment. See In re Soriano, 21 I. & N. Dec. 516, 534, 1996 WL 426888 (BIA June 27, 1996), vacated on other grounds, 1997 WL 33347804 (Op. Atty Gen. Feb. 21, 1997). The IJ's statement to Copeland that new laws had rendered him ineligible for relief was based on Soriano.

During 1997 and 1998, however, several courts in this circuit and elsewhere ruled that Section 440(d) could not be applied retroactively in Copeland's circumstances. See, e.g., Goncalves v. Reno, 144 F.3d 110, 133 (1st Cir.1998); Mojica v. Reno, 970 F.Supp. 130, 182 (E.D.N.Y.1997). The Supreme Court eventually agreed, holding that Section 440(d) could not be applied retroactively to aliens who pled guilty to crimes prior to 1996 that made them ineligible for Section 212(c) relief under the 1996 Amendments. St. Cyr, 533 U.S. at 326, 121 S.Ct. 2271.

On September 22, 1998, after his deportation hearing but prior to the decision in St. Cyr, Copeland filed a motion to reopen his deportation proceedings and for a stay of deportation under Section 212(c). Copeland, now represented by counsel, based his motion in part on the argument that the IJ had breached his obligation under 8 C.F.R. § 242.17(a) to inform Copeland of his eligibility for Section 212(c) relief. The same IJ denied Copeland's motion to reopen on the ground that, although Section 212(c) relief remained available to aliens whose deportation proceedings began prior to the passage of AEDPA, Copeland was ineligible for Section 212(c) relief because his deportation proceedings began after its passage.

Copeland appealed the IJ's decision to the BIA on October 6, 1998, arguing that he was eligible for Section 212(c) relief. However, on November 24, 1998, before the BIA considered his appeal, Copeland was deported to Jamaica. On May 25, 1999, the...