U.S. v. Scott

Decision Date11 January 2005
Docket NumberDocket No. 04-0927-CR.
Citation394 F.3d 111
PartiesUNITED STATES of America, Appellee, v. Kevin Eric SCOTT, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Joey Lipton, Assistant United States Attorney, for Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, Brooklyn, N.Y. (Emily Berger, on the brief), for Appellee.

Edward S. Zas, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: KEARSE, McLAUGHLIN, and CALABRESI, Circuit Judges.

MCLAUGHLIN, Circuit Judge:

Kevin Eric Scott appeals from a judgment of the United States District Court for the Eastern District of New York (Sifton, J.), convicting him, after a jury trial, of illegal reentry into the United States after deportation, in violation of 8 U.S.C. § 1326(a). This case has tracked a long, sinuous, almost Kafkaesque course.

This is the second time it has been before us. In 2003, we remanded the case for the district court to reconsider its denial of Scott's motion to dismiss the indictment in light of United States v. Perez, 330 F.3d 97 (2d Cir.2003), which we had decided during the pendency of Scott's appeal. United States v. Scott, 75 Fed.Appx. 30 (2d Cir.2003) (summary order).

On remand, Scott again challenged his indictment, under 8 U.S.C. § 1326(d), by collaterally attacking the deportation order upon which the charge was predicated. Scott claimed that he was prejudiced during the deportation proceeding by his counsel's ineffective assistance — namely, his failure to move for a waiver of deportation under § 212(c) of the Immigration & Nationality Act ("INA") of 1952, 8 U.S.C. § 1182(c) (repealed Sept. 30, 1996).

Despite our decision in Perez, the district court again denied Scott's motion to dismiss the indictment; and it upheld his conviction for illegal reentry. United States v. Scott, No. 02-0332 (E.D.N.Y. Feb. 9, 2004).

We now conclude that Scott was prejudiced by his counsel's ineffective assistance and that entry of the underlying deportation order was "fundamentally unfair" within the meaning of 8 U.S.C. § 1326(d). We therefore reverse the district court's denial of Scott's motion to dismiss his indictment.


Kevin Eric Scott is a thirty-one-year-old Jamaican native. In 1981, at the age of eight, Scott moved to the United States with his family and became a lawful permanent resident. He attended grade school, high school, and college in New York. Scott's mother, father, two sisters, and several other family members also live in New York. Between 1991 and 1996, Scott held various jobs in New York.

In October 1989, at the age of sixteen, Scott was convicted of grand larceny (3rd degree) in Queens, New York. Scott was seen putting a motorcycle into a stolen van. He received five years' probation.

In May 1995, Scott was convicted in the Bronx, New York, of criminal possession of stolen property (3rd degree). Scott reportedly sold two stolen vehicles to an undercover officer. He was sentenced to three- to six-years' incarceration. Scott served this sentence in the New York State Shock Incarceration Program ("SIP"), "an alternative form of correctional life stressing a highly structured and regimented daily routine which includes extensive discipline and counseling." N.Y. Comp.Codes R. & Regs. tit. 7, § 1800.6. Because of his successful completion of the SIP, Scott was released from custody after only six months.

In July 1995, while Scott was still in the SIP, the Immigration and Naturalization Service ("INS") ordered Scott to show cause why he should not be deported based on his two New York convictions for crimes of "moral turpitude."* Scott was also instructed to report any change of address or phone number to the immigration court.

In October 1995, Scott appeared before the immigration judge ("IJ") and requested an opportunity to retain an attorney. The hearing was adjourned. In December 1995, another hearing was adjourned because Scott's counsel could not be there.

On January 11, 1996, Scott's counsel appeared at a third hearing, but this time Scott did not. At the hearing, the IJ stated his belief that Scott was eligible for discretionary relief from deportation under § 212(c) of the INA — i.e., "waiver of deportation." His counsel conceded that without the waiver Scott was deportable based on his two prior convictions. The IJ, therefore, instructed counsel to file a § 212(c) application in a month, i.e., no later than February 12, 1996. Counsel stated that he did not need more time to file. The IJ scheduled the § 212(c) hearing for March 19th.

Despite the IJ's instructions, Scott's counsel never filed an application for § 212(c) relief.

Shortly after the January 11th hearing, Scott was released from state custody and taken into INS custody. He was released on an immigration bond.

On July 30, 1996, the IJ convened another deportation hearing. This time neither Scott nor his counsel appeared. The IJ observed that notice of the hearing was delivered to counsel's address of record. But, unbeknownst to the judge, counsel's address had changed. Based on the findings made at the January 11th hearing, the IJ issued an order of deportation in absentia.

In September 1996, Scott appealed the deportation order to the Board of Immigration Appeals ("BIA"). His attorney stated that his office had relocated at the end of January 1996, but that he had "forgotten to send a change of address notice to the New York Immigration Office." Attached to the appeal was an affidavit by Scott stating that he had not been notified of the July 30 deportation hearing.

Later that month, Scott was arrested in New York for attempted auto theft. At the arrest, burglar's tools were found on his person.

Two years later, in August 1998, the BIA dismissed Scott's appeal because the BIA was precluded from considering an appeal from a deportation order entered in absentia. The proper way to challenge such an order was to petition the IJ to reopen the deportation proceedings.

In September 1998, Scott was convicted in New York of possessing burglar's tools, a misdemeanor, in connection with his 1996 arrest. He was sentenced to thirty days' incarceration.

In March 2001, Scott was taken into INS custody. A month later, Scott was deported to Jamaica. At some point between April and October 2001, Scott returned to the United States.

In October 2001, Scott was arrested in New York and charged with: (1) grand larceny (4th degree); (2) illegal possession of vehicle identification number plates; and (3) criminal possession of stolen property (5th degree).

In March 2002, Scott was indicted for illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a), in the Eastern District of New York.

In April 2002, Scott moved to dismiss the indictment for illegal reentry under Fed.R.Crim.P. 12(b)(2). Scott argued that his 1996 deportation proceeding, conducted in absentia, was fundamentally unfair and thus could not serve as the basis for a reentry indictment. Specifically, Scott claimed that his attorney had been ineffective, thus violating his due process rights. According to Scott, had his attorney filed a § 212(c) application in February 1996, his deportation would have been waived. In support of this claim, Scott cited his fifteen years of residence in New York, his strong family ties to the United States, education in New York, completion of the SIP, and a criminal history that involved neither violence nor drugs.

On May 31, 2002, the Eastern District of New York (Sifton, J.) denied Scott's dismissal motion on procedural grounds. United States v. Scott, No. 02-0332 (E.D.N.Y. May 31, 2002). The court ruled that Scott could have appealed the BIA's 1998 decision to this Court on the ground of attorney incompetence, but had failed to do so. Therefore, Scott could not meet the requirement of § 1326(d) that he have been deprived of the opportunity for judicial review of the underlying deportation order. Nor did Scott notify the Immigration Office of his address upon release from state custody in 1996.

In June 2002, Scott sought to reargue his motion to dismiss before Judge Sifton, claiming that he was denied a fair opportunity to seek judicial review of the BIA's decision because he was never notified of the BIA's 1998 dismissal of his appeal. As proof of his diligence, Scott proffered a document from his INS file dated October 28, 1995, which proved that he had indeed provided his new address to the INS. Although acknowledging that the BIA's decision was not accompanied by an affidavit of service, the Government characterized as "implausible" Scott's contention that he had no notice of the BIA decision.

In July 2002, Judge Sifton denied Scott's motion for reargument. United States v. Scott, No. 02-0332 (E.D.N.Y. July 10, 2002). In doing so, the court: (1) recognized that Scott's claims raised "serious questions about whether he had the opportunity for judicial review;" but (2) declined to resolve that issue, because even if it were true, "the entry of the deportation order was not fundamentally unfair" under 8 U.S.C. § 1326(d). The court reasoned, in part, that Scott's 1998 misdemeanor conviction for possession of burglar's tools would have undermined his application for § 212(c) relief by showing lack of rehabilitation.

Scott proceeded to trial. The jury found him guilty of illegally reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a). Judge Sifton sentenced him to 41 months' imprisonment.

Scott appealed the denial of his motion to dismiss the indictment. While the appeal was pending, we decided United States v. Perez, 330 F.3d 97 (2d Cir.2003). Because Perez "deal[t] with many issues germane to [Scott's] case, and specifically the meaning of all three of § 1326(d)'s requirements," we vacated and remanded for Judge Sifton to reconsider Scott's ...

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