U.S. v. Sosa

• Decision Date: 21 October 2004
• Docket Number: No. 03-1530.,03-1530.
• Citation: 387 F.3d 131
• Parties: UNITED STATES of America, Appellee, v. Rene Mauricio SOSA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

387 F.3d 131

UNITED STATES of America, Appellee, v. Rene Mauricio SOSA, Defendant-Appellant.

No. 03-1530.

United States Court of Appeals, Second Circuit.

Argued: April 12, 2004.

Decided: October 21, 2004.

Appeal from the United States District Court for the Eastern District of New York, Edward R. Korman, Chief Judge.

COPYRIGHT MATERIAL OMITTED

David Lewis, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Defendant-Appellant.

Michael J. Ramos, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney, Emily Berger, Assistant United States Attorney, on the brief), Brooklyn, NY, for Appellee.

Before: OAKES, WINTER, and CALABRESI, Circuit Judges.

WINTER, Circuit Judge.

Rene Sosa appeals from a conviction before Chief Judge Korman for illegal reentry into the United States after deportation. See 8 U.S.C. § 1326(a), (b)(2). The district court rejected Sosa's collateral attack on the validity of his deportation order, holding that Sosa had failed to satisfy at least two requirements of Section 1326(d): exhaustion of administrative remedies and denial of the opportunity for judicial review. We hold that Sosa has satisfied these two requirements. We vacate his conviction and remand for findings on whether Sosa satisfied the third requirement, fundamental unfairness.

BACKGROUND

a) Factual Background

Sosa, a citizen of El Salvador, moved to the United States in 1979 when he was five years old. He entered as a non-immigrant visitor but adjusted his status to that of a lawful permanent resident in 1980. Sosa lived with his parents in Brooklyn until he was 17 and remains close to them. He stopped attending school at age 17, in the tenth grade. On November 30, 1992, based on his sale of heroin to an undercover police officer, Sosa pleaded guilty in New York state court to Attempted Criminal Sale of a Controlled Substance in the Fifth Degree. He was sentenced to 18 months' to three years' imprisonment. On July 11, 1996, based on his attempt to smuggle a single-edge razor blade in his belt to an inmate, Sosa pleaded guilty in the Bronx to smuggling dangerous contraband to prisoners. He was sentenced to 15 days' imprisonment.

While Sosa was incarcerated for his 1992 conviction, the Immigration and Naturalization Service ("INS") served him with an Order to Show Cause why he should not be deported. No further action was taken on the deportation proceeding, and Sosa was released on parole by the New York authorities on March 15, 1994. However, on July 15, 1997, after Sosa's 1996 conviction, the INS took him into custody.

A deportation hearing took place before an immigration judge ("IJ") in Oakdale, Louisiana, on August 12, 1997. The IJ offered Sosa an adjournment to prepare his case and/or find an attorney; Sosa declined and proceeded pro se that day. The IJ then informed Sosa that he had a right to an attorney, but that the government would not pay for one, and that he had a right to present evidence. Finally, the IJ told Sosa of his "right to appeal any decision of this Court to a higher court in Washington D.C." and "even after that, to the federal court system in this country."

At the IJ's request, Sosa admitted that he was not a citizen of the United States and that he was a citizen of El Salvador. Sosa also admitted to the November 3, 1992 conviction for attempted sale of heroin. The IJ then found Sosa "removable as charged" and asked whether Sosa understood that finding. Sosa responded that he did, and the IJ asked whether he wished "to accept that decision or reserve appeal." The following colloquy then occurred:

Sosa: Um, first I'd like to ask a question. Then I'll make my decision on the appeal. My first question is this. If I was to be removed from the United States how long will it be on punishment? How long will it be to come back?

Govt: Well.

IJ: Uh, at least twenty years.

Sosa: At least 20 years. Because, well, I have no family in El Salvador. No relatives.

IJ: Do you wish to accept my decision or reserve an appeal?

Sosa: I'll take it.

IJ: You accept it?

Sosa: I accept it.

The IJ then stated that the decision was final, and the INS deported Sosa to El Salvador within a month.

The issues on this appeal arise from the fact that the IJ never informed Sosa that he was eligible to seek discretionary relief from deportation under former Section 212(c) of the Immigration and Nationality Act ("INA"), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq. Prior to 1996, that section gave the Attorney General "broad discretion to cancel deportation orders for aliens who met certain residence requirements and had not served five years in prison for an aggravated felony." United States v. Copeland, 376 F.3d 61, 64 (2d Cir.2004) (citing 8 U.S.C. § 1182(c) (repealed 1996)). In 1996, the Antiterrorism and Effective Death Penalty Act ("AEDPA") made aliens convicted of aggravated felonies ineligible for Section 212(c) relief. Pub.L. No. 104-132, § 440(d), 110 Stat. 1214, enacted April 24, 1996. Later that year, the Illegal Immigrant Reform and Immigrant Responsibility Act ("IIRIRA") repealed Section 212(c) and replaced it with a provision allowing the Attorney General to cancel removal for a narrower class of aliens not including anyone "convicted of any aggravated felony." Pub.L. No. 104-208, § 304(b), 110 Stat. 3009-546, enacted Sept. 30, 1996.

The Board of Immigration Appeals ("BIA") initially determined that these new laws applied to aliens, like Sosa, who had pled guilty to aggravated felonies before the new laws were enacted. Copeland, 376 F.3d at 64. Because the BIA was following this interpretation when Sosa's deportation hearing took place, the IJ did not inform Sosa that he was eligible to seek Section 212(c) relief. After Sosa's deportation, however, the Supreme Court held that the 1996 amendments could not be applied retroactively to render aliens who pled guilty to aggravated felonies prior to 1996 ineligible for Section 212(c) relief. INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

Sosa reentered the United States about nine and a half months after his deportation, around June 1998. He worked installing car stereo systems between his reentry and 2002, and his employer was satisfied with his work. During this period, Sosa committed two new crimes. On March 6, 2002, he was arrested in Queens for Criminal Possession of Marijuana in the Fifth Degree; he pleaded guilty to the charge the next day. On April 5, 2002, Sosa was again arrested on the same charge. After this arrest, a fingerprint check revealed his deportation for committing an aggravated felony.

b) District Court Proceedings

Sosa was indicted in the Eastern District of New York for illegal reentry under 8 U.S.C. § 1326 on July 9, 2002.¹ Sosa moved to dismiss the indictment on the grounds that his deportation hearing "violated [his] right to due process." He argued that at the pertinent time he had been eligible for discretionary Section 212(c) relief under 8 U.S.C. § 1182(c) (1994), was reasonably likely to have received that relief, but was not given an opportunity to apply for it.

Section 1326(d) allows a defendant facing an illegal reentry charge to challenge collaterally the underlying deportation order. To do so successfully, the defendant must show exhaustion of administrative remedies, denial of judicial review, and fundamental unfairness in the deportation proceeding. The district court denied Sosa's motion to dismiss, holding that he had failed to meet the first two requirements of 8 U.S.C. § 1326(d)—exhaustion of administrative remedies and denial of the opportunity for judicial review. The court noted, however, that "maybe" the deportation order had been fundamentally unfair.

Sosa then entered into a conditional plea agreement under which he waived any right to appeal a sentence of less than 57 months' imprisonment but retained his right to appeal from the denial of his motion to dismiss. Sosa pled guilty on December 11, 2002 before Magistrate Judge Azrack. The Probation Department found that he had an offense level of 21 and a Criminal History Category of III, yielding a sentencing range of 46 to 57 months. The district court agreed but granted a downward departure because "these kinds of cases are the most difficult ones." The court noted that Sosa was "for all practical purposes an American and then he's dropped back into a country that's totally strange and foreign to him, even though he was born there." The court sentenced Sosa to 36 months' imprisonment and a three year term of supervised release. This appeal followed.

DISCUSSION

As noted, an alien attempting to collaterally challenge a deportation proceeding as a defense to a criminal prosecution for illegal reentry must satisfy the three requirements of 8 U.S.C. § 1326(d):

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

Id. We address Sosa's compliance with each of these requirements in turn, concluding that he satisfies the first two and remanding for findings on the third.

a) Exhaustion of Administrative Remedies

Statutory exhaustion requirements, such as Section 1326(d)(1), are generally not subject to exceptions. United States v. Gonzalez-Roque, 301 F.3d 39, 47 (2d Cir. 2002) (statutory exhaustion requirements are "mandatory, and courts are not free to dispense with them") (internal quotation marks omitted); see also Theodoropoulos v. INS, 358 F.3d 162, 172-72 (2d Cir.2004) (futility of exhaustion excuses statutory exhaustion requirement only where administrative procedure lacks power to provide any relief; otherwise, exhaustion is required).

However, when an administrative order is relied upon as an element of a...