U.S. v. Perez

• Decision Date: 25 July 2002
• Docket Number: No. 01-CR-1377 (JBW).,01-CR-1377 (JBW).
• Citation: 213 F.Supp.2d 229
• Parties: UNITED STATES of America, v. Segundo De Jesus PEREZ Defendant
• Court: U.S. District Court — Eastern District of New York

Page 229

213 F.Supp.2d 229

UNITED STATES of America, v. Segundo De Jesus PEREZ Defendant

No. 01-CR-1377 (JBW).

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

July 25, 2002.

Catherine Wen Hwa So, U.S. Attorney's Office, E.D.N.Y., Brooklyn, NY, for Plaintiff.

Jan A. Rostal, The Legal Aid Society Federal Defender Division, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

WEINSTEIN, Senior District Judge.

Defendant, charged with criminal reentry into this country after deportation, moves to dismiss the indictment on the collateral ground that ineptness of his attorney during deportation proceedings had resulted in violation of his right to due process, negating the predicate for the prosecution. The claim is troubling. It illustrates why aliens are often afforded the form of due process without its substance. The motion is granted.

I Facts

Mr. Perez is a citizen of the Dominican Republic. He became a permanent resident of the United States in 1986 and lived in New York City with his wife and daughter.

In April 1993 Mr. Perez was convicted of the attempted criminal sale of a controlled substance and sentenced to six months incarceration and five years probation. He apparently had pleaded guilty. Defendant's Criminal History, attached as Exhibit A to Government's Response in Opposition to Defendant's Motion to Dismiss Indictment (Apr. 25, 2002) ("Government's Response").

On August 2, 1993, while serving his sentence at Riker's Island, Mr. Perez was given an Order to Show Cause and Notice of Hearing by the Immigration and Naturalization Service ("INS") indicating that the INS would seek to have him deported as an aggravated felon. Order to Show Cause and Notice of Hearing, attached as Exhibit B to Government's Response. The notice included a form informing Mr. Perez in English and Spanish that "[i]f you are not satisfied with the decision of the immigration judge, you have the right to appeal. The immigration judge will provide you with your appeal rights." Id.

After his release from Riker's Island, Mr. Perez was transferred to an INS facility at Oakdale, Louisiana and his case was assigned to an Immigration Judge. His application for a change of venue to New York, his and his family's place of domicile, made through his attorney, John J. Garzon, an attorney practicing in New York, was denied. A deportation hearing was conducted in Louisiana on October 5, 1993. At this hearing, the Immigration Judge found Mr. Perez to be deportable. His attorney indicated an intention to make a "212(c) application." Transcript of Hearing held on October 5, 1993, attached as Exhibit D to Government's Response. By a 212(c) application, Mr. Garzon presumably meant that he would seek a discretionary waiver of deportation under then-section 212(c) of the Immigration and Naturalization Act. 8 U.S.C. § 1182(c) (1994) (repealed by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. 104-208, 110 Stat. 3009, § 304(B) (1996)).

The Immigration Judge ordered that Mr. Garzon file any 212(c) application by October 19, 1993 and that he personally appear at a hearing in Louisiana on the application on November 1, 1993. On October 18, 1993, Mr. Garzon informed the clerk of the immigration court that he intended to submit a motion for continuance. Nevertheless, no 212(c) application or motion for a continuance had been filed on Mr. Perez's behalf by October 19. On October 20 the Immigration Judge found that because an application had not been timely filed Mr. Perez had "abandoned any and all claims for relief from deportation." Order of Deportation, attached as Exhibit D to Memorandum in Law in Support of Defendant's Motion to Dismiss Indictment (April 10, 2002) ("Defendant's Memorandum"). The Immigration Judge then ordered Mr. Perez deported. Id.

On October 28, Mr. Garzon filed a motion on behalf of Mr. Perez to reopen the deportation proceedings. Along with this motion, Mr. Garzon attached a motion for a continuance dated October 27, 1993, as well as an "Application for Advance Permission to Return to Unrelinquished Domicile" dated October 19, 1993. Motion to Reopen Deportation Proceedings, attached as Exhibit E to Defendant's Memorandum. These papers did not include a motion to stay the deportation order. A stay would have allowed Mr. Perez to remain in the United States while he appealed from his order of deportation.

On November 9, 1993, the Immigration Judge denied the motion to reopen the deportation proceedings on the ground that the defendant had not shown good cause for failure to file the 212(c) application by October 19, 1993. Mr. Perez was deported shortly after his motion to reopen was denied.

On November 9, 1993, the same day that the Immigration Judge denied reopening, but before actual deportation, Mr. Garzon filed a notice of appeal to the Board of Immigration Appeals appealing the Immigration Judge's denial of the motion to reopen. Notice of Appeal to the Board of Immigration Appeals of Decision of Immigration Judge, attached as Exhibit G to Government's Response. A memorandum in support of the appeal was filed the following day by Mr. Garzon. Memorandum in Support of Appeal, attached as Exhibit G to Government's Response. On December 7, 1993, after actual deportation, the Board of Immigration Appeals affirmed the decision of the Immigration Judge denying the motion to reopen the proceedings. Board of Immigration Appeals decision, attached as Exhibit H to Government's Response.

Eight years later, on November 24, 2001, Mr. Perez arrived at John F. Kennedy International Airport on a flight from the Dominican Republic. Immigration and Naturalization Services agents stopped him. A records check revealed his criminal conviction and deportation. Mr. Perez was indicted on a charge of illegal reentry on December 11, 2001.

II Law

Section 1326(b)(2) of Title 8 of the United States Code makes it a crime for an alien "whose removal was subsequent to a conviction for commission of an aggravated felony" to reenter the United States. As defined at the time of deportation an aggravated felony included "illicit trafficking in a controlled substance ... including a drug trafficking crime." 8 U.S.C. § 1101(a)(43)(B) (1994). The defendant met the definition of an aggravated felon.

Put aside is the question— not raised by the parties on this motion— of whether a person has "entered the United States" if he is stopped at the border.

One element that the government must prove to sustain its charge is that the alien was properly deported. In United States v. Mendoza-Lopez, 481 U.S. 828, 837, 107 S.Ct. 2148, 2154-55, 95 L.Ed.2d 772, 782 (1987), the Supreme Court held that the Due Process Clause places limits on the use of prior deportations in criminal charges. The Court outlined requirements for a successful collateral challenge. Id. at 836-39, 107 S.Ct. 2148. Congress codified these requirements as: (1) the alien must have exhausted all administrative remedies; (2) the deportation proceedings must have improperly denied the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair. 8 U.S.C. § 1326(d). In proving fundamental unfairness an alien attempting to make a collateral attack on a prior deportation order must prove that prejudice resulted from any fundamental procedural errors.

To exhaust administrative remedies, an alien is generally required to appeal from an Immigration Judge's order to the Board of Immigration Appeals. United States v. Johnson, 2000 WL 620324, at *8 (D.Conn.2000), citing Mejia-Ruiz v. INS, 51 F.3d 358, 364 (2d Cir.1995). The defendant appealed the denial of the motion to reopen to the Board of Immigration Appeals. The deportation order itself was never appealed. The defendant was deported while the appeal was pending.

The meaningful review requirement mandates that an alien at risk of being deported be provided with written notice of the right to appeal. United States v. Fares, 978 F.2d 52, 56 (2d Cir. 1992), citing 8 C.F.R. § 242.1(c). Due Process is violated when the proceedings "effectively deprived" the alien of the right to a direct administrative appeal of the decision of the Immigration Judge. United States v. Paredes-Batista, 140 F.3d 367, 377 (2d Cir.1998). Situations in which courts have found a deprivation of the opportunity for review include an unconsidered and unintelligent waiver of appeal, Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148; failure to advise of the availability of discretionary relief, United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000); United States v. Aguirre-Tello, 181 F.Supp.2d 1298, 1303-1304 (D.N.M.2002); inadequate explanation of a section 212(c) hearing and such a hearing's accompanying rights, United States v. Sanchez-Peralta, 1998 WL 63405, at *5 (S.D.N.Y. Feb. 13, 1998); and failure to inform the alien of the time and date of a hearing, United States v. Montano-Bentancourt, 151 F.Supp.2d 794, 796-97 (W.D.Tex.2001). Cf. United States v. Gonzalez-Roque, 165 F.Supp.2d 577, 581 (S.D.N.Y.2001) (alien deprived of due process when he was not informed that an INS attorney had received his 212(c) application, thus frustrating review).

Deprivation of judicial review can also be established by demonstrating ineffective assistance of counsel. To prove ineffectiveness of the attorney a party must show that "counsel's performance was so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Saleh v. United States Dep't of Justice, 962 F.2d 234, 241 (2d Cir.1992) (internal quotes and citations omitted). The party "must allege sufficient facts to allow this court to infer that competent counsel would have acted otherwise and must also show that he was prejudiced by his counsel's performance." Esposito v. INS, 987 F.2d 108, 111 (2d Cir. 1993) (per curiam) (internal quotes and citations omitted).

Ineffective assistance...