U.S. v. Gonzalez-Roque

• Decision Date: 20 August 2002
• Docket Number: Docket No. 01-1509.
• Citation: 301 F.3d 39
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Coperquin GONZALEZ-ROQUE, also known as Manuel Ledesma, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

301 F.3d 39

UNITED STATES of America, Plaintiff-Appellant, v. Coperquin GONZALEZ-ROQUE, also known as Manuel Ledesma, Defendant-Appellee.

Docket No. 01-1509.

United States Court of Appeals, Second Circuit.

Argued: June 21, 2002.

Decided: August 20, 2002.

COPYRIGHT MATERIAL OMITTED

Neil M. Barofsky, Assistant United States Attorney (Meir Feder, of counsel, for Mary Jo White, United States Attorney for the Southern District of New York), New York, NY, for Plaintiff-Appellant.

Philip L. Weinstein, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellee.

Before: McLAUGHLIN, CALABRESI, and B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge.

The Government appeals the dismissal of an indictment charging Coperquin Gonzalez-Roque with illegal reentry into the United States following deportation for an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). Gonzalez-Roque moved to dismiss the indictment on the grounds that procedural errors in the underlying deportation proceedings violated due process. The District Court (Robert W. Sweet, Judge) agreed and dismissed the indictment. United States v. Gonzalez-Roque, 165 F.Supp.2d 577 (S.D.N.Y.2001). Because we find no denial of due process and because we find that Gonzalez-Roque neither exhausted his administrative remedies nor was deprived of an opportunity for judicial review of his deportation order, we reverse and remand.

BACKGROUND

Gonzalez-Roque is a citizen of the Dominican Republic. He entered the United States as a lawful permanent resident in August 1992. Less than a year later, in June 1993, he was arrested and indicted for attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in both the second and third degrees. The charging documents reflect that, while cleaning an apartment, Gonzalez-Roque had placed magazines in the hallway of the building. When a building employee asked him to remove them, Gonzalez-Roque hit the employee in the head with a firearm and fired four shots at him, striking him once in the groin. Gonzalez-Roque pleaded guilty to criminal possession of a weapon in the second degree, and in August 1993 he was sentenced to two to six years' imprisonment.

In October 1994, while Gonzalez-Roque was incarcerated, the Immigration and Naturalization Service ("INS") commenced deportation proceedings at the Ulster Correctional Facility in Naponoch, New York. His due process claims arise from the conduct of these proceedings. On February 2, 1995, the first hearing was held before Immigration Judge Joe Miller (the "IJ"), at which Gonzalez-Roque represented himself. The IJ questioned Gonzalez-Roque, who conceded that: (1) he was not a citizen of the United States; (2) he entered the United States as a lawful permanent resident in August 1992; and (3) he had been convicted of criminal possession of a weapon in the second degree in 1993. The IJ found that Gonzalez-Roque was a deportable alien because of his aggravated felony conviction. See 8 U.S.C. § 1227(a)(2)(C) (2000). His conviction set an extremely high barrier for receipt of a deportation waiver, as the Immigration and Nationality Act ("INA") prescribes that "[a]n alien convicted of an aggravated felony shall be conclusively presumed to be deportable from the United States." 8 U.S.C. § 1228(c) (2000).

Notwithstanding this conclusive presumption, the IJ questioned Gonzalez-Roque to see if he qualified for any form of discretionary relief and determined that, in view of his prior criminal record, Gonzalez-Roque faced certain deportation unless he could obtain an adjustment of his immigration status to that of a lawful permanent resident.¹ In order to be eligible for an adjustment of status under section 245(a) of the INA: (i) the applicant must make an application for the adjustment; (ii) he must be eligible to receive an immigrant visa and be admissible for permanent residence; and (iii) the visa must be immediately available to him at the time of the application. 8 U.S.C. § 1255(a) (2000). Had Gonzalez-Roque submitted a proper application for adjustment of status, he would have satisfied the first two requirements. See Matter of Gabryelsky, 20 I. & N. Dec. 750, 753, 1993 WL 495142 (BIA Nov. 3, 1993) (finding that alien's conviction for criminal possession of a weapon did not render him inadmissible for purposes of section 245(a)). With regard to the third requirement, the IJ stated that Gonzalez-Roque's stepfather, who was a U.S. citizen, was "the only one that can file papers for you that might even give you a chance to stay" in the United States. The stepfather was required to file an I-130 petition, which, if approved, would have made an immigrant visa immediately available to Gonzalez-Roque. See 8 U.S.C. § 1154(a)(1)(A)(i) (2000); 8 C.F.R. § 204.1(a)(1) (2001). The IJ's inquiry was complicated by the fact that Gonzalez-Roque had given the INS and the IJ contradictory information concerning his date of birth and the citizenship of his parents. Nevertheless, the IJ granted Gonzalez-Roque three adjournments so that he could solicit the petition from his stepfather.

At the February 2, 1995 hearing, the IJ gave Gonzalez-Roque a blank I-130 form and adjourned the proceedings until March 2, 1995. The IJ told Gonzalez-Roque that if he were unable to locate his stepfather and demonstrate that the stepfather would file the petition, Gonzalez-Roque would be ordered deported at the next hearing. At the March 2 hearing, Gonzalez-Roque told the IJ that he had been unable to contact his stepfather, in part because his telephone privileges at the correctional facility had been revoked. The IJ informed Gonzalez-Roque that he had one final chance to locate his stepfather and "prove ... that your father [sic] is willing and going to file" the I-130 petition. He adjourned the hearing until March 30 and stated that no further adjournments would be granted.

The case reconvened on May 19, 1995. At this hearing, it was discovered that Gonzalez-Roque's mother, who was not a U.S. citizen, had improperly filed an I-130 petition on her son's behalf. Gonzalez-Roque stated that his mother had filed the petition because his stepfather was out of the country. The IJ informed Gonzalez-Roque that the petition would not be approved and that only a petition from his stepfather could assist him. The IJ then adjourned the hearing one last time until July 5, stating that "[i]f you do not have an approved I-130 on July 5, I'm going to order you deported."

The final hearing was conducted on July 5, 1995. Gonzalez-Roque claimed that his stepfather had sent, by express mail, a completed I-130 petition to the Ulster facility. The INS attorney in attendance informed the IJ that the INS had not received the petition. The IJ then briefly adjourned the hearing so that the INS could check its mail room to determine if the petition had arrived. It had not. Gonzalez-Roque claimed he had a copy of the petition "in his property" and requested a fourth adjournment of the proceedings so that he could submit the copy as proof that the form had been mailed. The request was denied. The IJ told Gonzalez-Roque that he would be given no more adjournments, but that he could raise the issue with the Board of Immigration Appeals (the "BIA") on appeal. The IJ then rendered an oral decision ordering Gonzalez-Roque deported. The IJ's refusal to grant this fourth adjournment was the crux of Gonzalez-Roque's due process claim in the District Court. The IJ then gave Gonzalez-Roque an appeals package, which he stated must be presented to the BIA within ten days, and adjourned the hearing. With respect to the I-130 petition, the IJ told Gonzalez-Roque that "[a]ll you [have] to do is, tell [the BIA] what the Judge did wrong and get it there by the 17th [of July]."

At a certain point, the date of which is unknown, the INS office at the Ulster facility received an undated I-130 petition from Gonzalez-Roque's stepfather. On July 21, 1995, an INS attorney who had appeared for the INS in the Gonzalez-Roque case at the May 19 hearing, sent a letter to Gonzalez-Roque's stepfather, stating that: "We are returning Form I-130 to you. The I-130 you forwarded must be processed at the Eastern Adjudication Center in Burlington, Vermont."² Gonzalez-Roque was not advised of the letter, and claims that he was not notified that the INS had received the petition until discovery proceedings during his illegal re-entry prosecution. The whereabouts of the I-130 petition after the INS letter was sent to Gonzalez-Roque's stepfather are unclear from the record; there is no indication that his stepfather ever mailed a completed petition to Burlington.

In September 1995, Gonzalez-Roque, still pro se, filed an appeal with the BIA. This appeal, however, failed to raise the IJ's denial of his request for an additional adjournment to allow submission of his stepfather's I-130 petition and, in fact, did not mention the petition at all. His sole ground for appeal was:

Appellant was deemed an illegal alien (status)[.] Per Title 8 § 1433(a) appellant was eligible for a certificate of citizenship from the Attorney General, Appellant has proof, per sub. (a)(5). And will be submitted forthwith the submitted brief.

The cited statute, 8 U.S.C. § 1433, allows citizen parents to naturalize their children born outside the United States if they are under eighteen years old and "residing outside of the United States in the legal and physical custody of the citizen parent...." 8 U.S.C. § 1433(a)(4) (2000). This provision was inapplicable to Gonzalez-Roque because, at the time of the deportation proceedings, he was over eighteen years old and resided in the United States. Further, although reference was made to a brief, Gonzalez-Roque did not file any additional documents with the BIA.

In November 1996, the BIA found Gonzalez-Roque's claims to be without merit and...