U.S. v. Gonzalez-Roque

• Decision Date: 25 September 2001
• Docket Number: No. 01 CR. 419 RWS.,01 CR. 419 RWS.
• Citation: 165 F.Supp.2d 577
• Parties: UNITED STATES of America, v. Coperquin GONZALEZ-ROQUE, a/k/a "Manuel Ledesma," Defendant.
• Court: U.S. District Court — Southern District of New York

165 F.Supp.2d 577

UNITED STATES of America, v. Coperquin GONZALEZ-ROQUE, a/k/a "Manuel Ledesma," Defendant.

No. 01 CR. 419 RWS.

United States District Court, S.D. New York.

September 25, 2001.

Honorable Mary Jo White, United States Attorney for the Southern District of New York, New York, By Neil M. Barofsky, Assistant U.S. Attorney, Of Counsel.

The Legal Aid Society, Federal Defender Division, New York, By Jennifer Brown, Esq., Of Counsel, for Defendant.

OPINION

SWEET, District Judge.

The defendant Coperquin Gonzalez-Roque ("Gonzalez-Roque") has moved pursuant to Rule 12, Fed.R.Crim.P. to dismiss the indictment filed against him charging him with a violation of Title 8, U.S.C. § 1326 for illegal entry after deportation on the grounds that the government cannot prove an essential element of the offense, namely, a valid deportation order, because the order entered violated due process and was fundamentally unfair. For the reasons set forth below, the motion is granted.

The issue presented is difficult — whether refusal to grant a fourth adjournment of a deportation hearing and failure to reopen that hearing under all the circumstances was a denial of due process. Because Gonzalez-Roque was acting pro se, because the submission for which the adjournment was sought was in fact received by the Immigration and Naturalization Service ("INS"), because the submission might have permitted an adjustment of Gonzalez-Roque's status to permit him to remain in the United States, and because Gonzalez-Roque was never notified of the receipt of the submission nor was the hearing reopened, due process requirements were not met. Since Gonzalez-Roque's prior deportation order violated due process, it could not be used to establish an element of the criminal offense with which he is now charged.

Prior Proceedings

The indictment against Gonzalez-Roque was filed on April 30, 2001, charging him in one count with illegally reentering the country in violation of Title 8, U.S.C. § 1326(a) and (b)(2). A pretrial conference was held on May 3 to schedule the proceedings at which time the defense indicated the likelihood that a motion would be filed. Time was excluded until the filing of the motion and the completion of briefing which occurred on July 13, 2001, at which time the instant motion was deemed submitted.

The Facts

On June 3, 1993, less than a year after he entered the United States as a lawful permanent resident ("LPR"), Gonzalez-Roque was arrested and subsequently indicted on charges of attempted murder in the second degree, assault in the second degree, criminal possession of a weapon in the second degree, and robbery in the third degree, arising out of an incident which was alleged to have occurred in the early morning hours of June 3, 1993, when a building employee outside the apartment in which Gonzalez-Roque was staying told him to stop placing magazines in the hallway of the building and Gonzalez-Roque used a firearm to strike the building employee in the head and to shoot him four times, striking him once in the groin.

On June 12, 1993, Gonzalez-Roque pleaded guilty to criminal possession of a weapon in the second degree. The Presentence Investigation ("PSI"), which was prepared in anticipation of sentencing, reported that "the Defendant did not express any remorse for his actions." On August 17, 1993, Gonzalez-Roque was sentenced to two to six years' imprisonment. According to his criminal history sheet, on June 20, 1994, Gonzalez-Roque absconded from a temporary release program.

On October 5, 1994, deportation proceedings were commenced against Gonzalez-Roque, and the first deportation hearing was held on February 2, 1995 before Immigration Judge Joe Miller. At the hearing, Gonzalez-Roque stated that he wanted to represent himself. The Immigration Judge then questioned Gonzalez-Roque, who admitted that: (1) he was not a citizen of the United States; (2) he entered the United States as an LPR on August 3, 1992; and (3) he had been convicted of criminal possession of a weapon in the second degree in 1993. The Immigration Judge therefore found that Gonzalez-Roque was a deportable alien.

In response to questioning from the Immigration Judge, Gonzalez-Roque claimed that he was 19 years old. The Immigration Judge confronted Gonzalez-Roque with an interview in which Gonzalez-Roque told an Immigration Agent that his date of birth was September 15, 1973. Gonzalez-Roque then denied ever speaking to the agent. The Immigration Judge also noted that the visa application originally filled out by Gonzalez-Roque's stepfather also reported a September 15, 1973 birth date. In response, Gonzalez-Roque stated that when his stepfather originally registered Gonzalez-Roque's birth certificate in the Dominican Republic, he mistakenly provided the wrong birth date for Gonzalez-Roque, and that this error was reflected on his visa application. Gonzalez-Roque then claimed that he was actually born on September 23, 1974, which would have made him 20 years old at the time of the hearing.

The Immigration Judge then ascertained that Gonzalez-Roque's stepfather was a United States citizen and informed Gonzalez-Roque that if his stepfather were to file an I-130 petition on Gonzalez-Roque's behalf, there was a "chance" that Gonzalez-Roque "might" be able to remain in the United States. The Immigration Judge then gave Gonzalez-Roque a blank I-130 form and adjourned the proceedings until March 2, 1995. The Immigration Judge told Gonzalez-Roque that if he was unable to locate his stepfather and demonstrate that a completed I-130 petition would be forthcoming, the Immigration Judge would order Gonzalez-Roque deported at the next hearing.

On March 2, 1995, the deportation hearing resumed. Gonzalez-Roque reported that he had been unable to contact his stepfather, although he thought that his stepfather was living in Manhattan. The Immigration Judge informed Gonzalez-Roque that he would have one final chance to locate his stepfather, but that no further adjournments would be granted.

On May 19, 1995, the Immigration Judge continued the deportation proceedings. At the hearing it was noted that Gonzalez-Roque's mother, not his stepfather, had filed an I-130 petition on his behalf. Because Gonzalez-Roque's mother was not a United States citizen, approval of the petition could not assist Gonzalez-Roque. The Immigration Judge gave Gonzalez-Roque yet another adjournment and again warned Gonzalez-Roque that there would be no further adjournments.

A final hearing was conducted on July 5, 1995 at the Ulster Correctional Facility at Naponoch, New York. Gonzalez-Roque claimed that his stepfather had mailed in a completed I-130 petition. The Immigration Judge noted that no such petition had been received and briefly adjourned the hearing to check the mail room to determine if it had arrived. Gonzalez-Roque asked for an adjournment to present his copy of the I-130 petition to the Immigration Judge as proof that the form had been mailed. The request was denied. After learning that no such petition had been received, the Immigration Judge told Gonzalez-Roque that he would be given no more adjournments, but that he could raise this issue with the Board of Immigration Appeals ("BIA") on appeal. Gonzalez-Roque stated that he had a copy of the petition among his papers at the institution and that he had two years more to serve on his sentence. The Immigration Judge then rendered an oral decision and ordered Gonzalez-Roque deported.

Two weeks after the July 5, 1995 hearing, Adam Opaciuch, Assistant District Counsel for the INS at Naponoch in the Trial Counsel's Office, sent a letter to Jorge Apolo, Gonzalez-Roque's stepfather. In the letter counsel stated: "We are returning Form I-130 to you. The Form I-130 you forwarded must be processed ... in Burlington, Vt." With the letter counsel enclosed the completed Form I-130 and the accompanying money order. The return address on the letter from Opaciuch is the Ulster Correctional Facility, the same address to which Gonzalez-Roque had informed the Immigration Judge the form had been sent. Gonzalez-Roque was not advised of this letter, nor was the record reopened.

Gonzalez-Roque, still pro se, filed an appeal with the BIA on September 7, 1994. In his appeal, Gonzalez-Roque did not raise the issue he is now advancing for the first time, that the Immigration Judge had abused his discretion in not granting him an additional adjournment, and that this purported abuse of discretion had resulted in Gonzalez-Roque being unfairly denied an adjustment of status. Gonzalez-Roque's appeal made no mention whatsoever of an attempt to adjust his status, but instead made that claim that:

Appellant was deemed an illegal alien (status). Per 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.¹

On November 4, 1996, the BIA considered Gonzalez-Roque's claim, and found it to be without merit. The BIA stated:

Based upon our review of the record, we find that the decision of the Immigration Judge is proper and we adopt it. On appeal the respondent claims that he is a United States citizen, but he has not provided any support for his assertion. We therefore find that such claim is without merit. Accordingly, the appeal is dismissed.

On September 21, 1997, Gonzalez-Roque was deported to the Dominican Republic.

Gonzalez-Roque illegally returned to the United States sometime before January 9, 2000. On that date he was arrested for criminal possession of a controlled substance in the seventh degree. He pleaded guilty to this charge on January 10, 2000, and was sentenced to five days' community service. He was arrested again on November 6, 2000, for grand larceny in the third degree. On January 23, 2001, a complaint was sworn out in the Southern District of New York charging Gonzalez-Roque with illegal...