U.S. v. Johnson

• Decision Date: 02 December 2004
• Docket Number: Docket No. 03-1671.
• Citation: 391 F.3d 67
• Parties: UNITED STATES of America, Appellee, v. Mark Anthony JOHNSON, a/k/a "Maxie Johnson," a/k/a "Brown Marvin," Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

391 F.3d 67

UNITED STATES of America, Appellee, v. Mark Anthony JOHNSON, a/k/a "Maxie Johnson," a/k/a "Brown Marvin," Defendant-Appellant.

Docket No. 03-1671.

United States Court of Appeals, Second Circuit.

Argued: August 23, 2004.

Decided: December 2, 2004.

Steven M. Statsinger, Legal Aid Society, Federal Defender Division Appeals Bureau, New York, N.Y., for Defendant-Appellant.

Katherine A. Lemire, Assistant United States Attorney for the Southern District of New York, New York, N.Y. (Jonathan S. Kolodner, Assistant United States Attorney, and David N. Kelley, United States Attorney, on the brief) for Appellee.

Before: NEWMAN, MINER, and KATZMANN, Circuit Judges.

MINER, Circuit Judge.

Defendant-Appellant, Mark Anthony Johnson ("Johnson"), appeals from a judgment of conviction and sentence on a one-count indictment charging him with reentering the United States after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). The judgment was entered after a non-jury trial on stipulated facts in the United States District Court for the Southern District of New York (Jones, J.). Prior to trial, Johnson had moved to dismiss the indictment, claiming that the order of deportation was unlawful by reason of the erroneous advice of an Immigration Judge. The District Court rejected the claim and found that Johnson had failed to fulfill the statutory requirements for a collateral challenge to the deportation order.

BACKGROUND

Johnson is a thirty-four-year-old native and citizen of Jamaica who entered the United States as a lawful permanent resident on January 23, 1987. Prior to his deportation in August 2000, Johnson had been convicted of two felonies: On February 11, 1993, he was convicted in New York State Supreme Court, Kings County, for attempted sale of a controlled substance in the third degree. This conviction arose from the sale of crack cocaine to a New York City Police Department undercover officer. For this offense, Johnson was sentenced to a one-month term of imprisonment and to a five-year term of probation. Then, while on probation, he was convicted in New York State Supreme Court, Nassau County, of aggravated unlicensed operation of a motor vehicle in the first degree. This conviction apparently was predicated upon the operation of an automobile following license suspension for failure to pay traffic tickets. For that offense, Johnson was sentenced to a probation term of five years.

Upon his arrival in the United States on January 30, 2000, after a trip to Jamaica, Johnson was apprehended at the airport by agents of the Immigration and Naturalization Service ("INS").¹ In a Notice to Appear ("NTA") issued by the INS on the same date, he was charged with being removable as an alien convicted of an aggravated felony after admission, pursuant to § 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"). A superseding NTA was filed on February 7, 2000 classifying Johnson as an "arriving alien" and charging him with being removable as an alien convicted of violating a controlled substance law, pursuant to INA § 212(a)(2)(A)(i)(II). He was also charged with being an alien whom a consular officer or the Attorney General had reason to believe to be an illicit trafficker in a controlled substance, pursuant to INA § 212(a)(2)(C)(i).

Responding to the NTA, Johnson first appeared by counsel before an Immigration Judge ("IJ") assigned to conduct Johnson's deportation hearing. In compliance with the request for briefing by the IJ, counsel for Johnson submitted a memorandum arguing that Johnson was eligible for cancellation of removal as well as for the discretionary relief of waiver of deportation. The government filed a memorandum in opposition, contending that Johnson did not meet the statutory requirements for cancellation of removal and that, by reason of amendments to the INA, discretionary relief from deportation was no longer available.

The amendments referred to came in the form of two statutes enacted by Congress in 1996. The first was the Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, 1277-79 (1996) (amending 8 U.S.C. § 1182(c)). Section 440(d) of the AEDPA eliminated the discretionary waivers of deportation for those aliens deportable by reason of having committed an aggravated felony or drug offense. The second statute was the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009-597 (1996). Section 304 of the IIRIRA repealed Section 212(c) of the Immigration and Nationality Act of 1952, 66 Stat. 163, 187 (1952). Section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed), had provided the Attorney General with broad discretion, which he had delegated to the Board of Immigration Appeals, to waive deportation of aliens who had accrued seven years of lawful residence in the United States. Immigration Judges were constrained to exercise that discretion by balancing the "alien's undesirability as a permanent resident" against the "social and humane considerations presented in his behalf." Matter of Marin, 16 I. & N. Dec. 581, 584-85, 1978 WL 36472 (BIA 1978); see Lovell v. INS, 52 F.3d 458, 461 (2d Cir.1995).

The 1996 legislation replaced the Section 212(c) provision for discretionary relief from deportation with a more strict procedure designated "cancellation of removal." See Swaby v. Ashcroft, 357 F.3d 156, 159 & n. 7 (2d Cir.2004). This procedure, enacted in INA § 240A(a), 8 U.S.C. § 1229b(a), authorizes the Attorney General to cancel removal of certain permanent aliens who are deportable from, or inadmissible to, the United States if three conditions are met. The alien must: (1) have been lawfully admitted as a permanent resident for at least five years; (2) have resided in the United States continuously for seven years after admission in any status; and (3) have not been convicted of any aggravated felony. Swaby, 357 F.3d at 159 n. 7.

By an interlocutory decision and order dated May 31, 2000, the IJ denied the relief sought by Johnson. Finding that his state drug-offense conviction fit within the definition of "aggravated felony," see INA § 101(a)(43)(B), 8 U.S.C. § 1101(a)(43)(B), the IJ concluded that Johnson was not prima facie eligible for cancellation of removal. The IJ also concluded that Johnson's eligibility was barred by his failure to reside continuously in the United States after he had been admitted in any status, since the continuity had been interrupted by Johnson's 1993 drug conviction and incarceration. As to Johnson's claim for eligibility for a Section 212(c) waiver, the IJ concluded that "this form of relief has been repealed by the enactment of the amendments to the INA wrought by the IIRIRA of 1996, sections 304(b) and 306(d) thereunder." Counsel for Johnson urged that Section 212(c), although repealed, could still be applied to provide discretionary relief from deportation in the case of an aggravated felon whose conviction predated the effective date of the repealing statute. In other words, counsel urged that, because Johnson's conviction in 1993 preceded the 1996 AEDPA legislation repealing § 212(c), the AEDPA could not be applied retroactively to deprive Johnson of eligibility for § 212(c) relief.

The IJ convened a hearing on June 8, 2000, following the issuance of the interlocutory decision and order. Johnson was present at the hearing, and his counsel appeared telephonically. Based on the submissions of counsel, documentary evidence, and the determinations made in the interlocutory decision, the IJ found "that both of the charges set forth in the notice to appear have been sustained by clear and convincing evidence" and that an order of deportation therefore was warranted. Upon inquiry by the IJ regarding designation of a country of removal, counsel responded that Johnson wished to designate Jamaica. The following colloquy ensued:

IJ: Is this going to be a final order today? Are you going to, is Mr. Johnson going to exercise his right to appeal?

Counsel: I'm not sure whether Mr. Johnson's going to exercise his right to appeal or not. Mr. Johnson has expressed some concerns about taking appeal, the time that might take. So — but before I would waive that right on his behalf, I would want to discuss it more formally with him and his family.

IJ: Okay.

Counsel: So at this point I would reserve, unless at this point Mr. Johnson wishes to affirmatively himself state that he wishes to take no appeal.

IJ: Mr. Johnson, you've heard the outcome of this case. Unfortunately for you, I believe the law is against you in this matter. It's a kind of technical or complex analysis and I'll concede that to you. But the bottom line, what's important to you, is I found that under the present Immigration and Nationality Act, the laws and regulations pertaining to that, your conviction precludes you from remaining in the United States under any circumstance.

Now, this is an issue that has not been definitely decided by appellate courts. But it's up to you as to whether you want to take this as a final decision. If you do that, by waiving your right to appeal — because you do have a right to appeal to a higher immigration court — that would necessitate your remaining in detention, obviously, for a period of time.

But be that as it may, that is your right. If you want to waive your appeal, it will be a final order and you will not be able to change your mind later on.

Do you understand? What do you want to do? Your attorney suggested he might want to talk to you about this.

Johnson: No, I do not have the time. I wish to waive my right to an appeal.

IJ: Okay.

Counsel: Judge, I didn't hear what he said.

IJ: He said he wants to waive an appeal.

Counsel: That's what I thought he would say. Okay.

IJ: Do you have any questions, Mr. Johnson?

Johnson: No, sir.

There were no further proceedings in the matter, and Johnson was deported to Jamaica on ...