United States v. Boliero

Decision Date13 February 2013
Docket NumberCriminal Action No. 11–10221–WGY.
Citation923 F.Supp.2d 319
PartiesUNITED STATES of America, v. Lucia Maria BOLIERO, Defendant.
CourtU.S. District Court — District of Massachusetts

OPINION TEXT STARTS HERE

Peter J. Pratt, United States Attorney's Office, Boston, MA, for United States of America.

Derege B. Demissie, Demissie & Church, Cambridge, MA, for Defendant.

MEMORANDUM & ORDER

YOUNG, District Judge.

I. INTRODUCTION

The defendant, Lucia Maria Bolieiro 1 (Ms. Bolieiro), is charged with violating 8 U.S.C. section 1326(a) and (b)(2), which makes the illegal reentry of a removed alien a criminal offense. The indictment charges Bolieiro with being found in the United States after having been excluded, deported, and removed without the express consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission to the United States. Indictment 1, ECF No. 1.

Since that indictment, the New Hampshire Superior Court has vacated the conviction which precipitated the order of deportation against Ms. Bolieiro. Def.'s Status Report, Attach. 1, Agreement, ECF No. 11–1. She has also raised due process concerns regarding the entry of the deportation order. See Def.'s Mot. Dismiss & Mem. Law (“Def.'s Mem.”), ECF No. 21. Ms. Bolieiro has filed a motion to dismiss challenging the validity of the deportation order collaterally. Def.'s Mem. To succeed on her motion, she must show (1) that she has exhausted all administrative remedies, (2) that she was improperly deprived of the opportunity for judicial review, and (3) that entry of her deportation order was fundamentally unfair. 8 U.S.C. § 1326(d).

A. Personal Background

Most of the relevant facts in this case are not in dispute.

Lucia Maria Bolieiro was born in Brazil on October 24, 1965. Gov't's Opp'n Def.'s Mot. Dismiss (“Gov't Opp'n”) 1, ECF No. 37. She emigrated to the United States from Brazil with her parents on September 17, 1972. Def.'s Status Report ¶ 1, ECF No. 11. At that time, she was admitted as a lawful permanent resident. Id. She remained in the United States until her deportation to Brazil on June 3, 1999. Def.'s Mem. 2; see Gov't Opp'n 1. At that time, she was the sole caretaker of an eleven-year-old child and had been employed full-time for many years. Resp't's Mot. Reopen Deportation Proceedings (“1999 Mot. Reopen”) ¶ 6, ECF No. 36. While in the United States, Ms. Bolieiro had two children, now approximately twenty-three and thirty years old. See Def.'s Status Report ¶ 2.

B. Procedural Background

In 1990, “Ms. Bolieiro was charged with selling $100 worth of cocaine to an undercover” police officer. Def.'s Status Report, Attach. 1, Mot. Withdraw Guilty Plea & Vacate Conviction 1, ECF No. 11–1. She pled guilty on March 6, 1991. Id. The defendant was served in hand with an Order to Show Cause (“OSC”) on April 9, 1992. Gov't Opp'n 2. The OSC indicated that Ms. Bolieiro was deportable based on two grounds: (1) as an alien having violated the Controlled Substances Act and (2) as an aggravated felon. Id. Both grounds of deportability stem from her 1991 guilty plea.

Ms. Bolieiro appeared, without counsel, before Immigration Judge Leonard Shapiro (the “hearing officer”) on June 2, 1992, and July 8, 1992. Gov't Opp'n, Attach. 1, Proceedings Tr. (June 2, 1992), ECF No. 37–1; Gov't Opp'n, Attach. 1, Proceedings Tr. (July 8, 1992), ECF No. 37–1. The hearing officer first found that on the basis of the conviction, Ms. Bolieiro was deportable. Proceedings Tr. (July 8, 1992) 9. He advised Ms. Bolieiro, however, that she was eligible for a waiver of deportation under Immigration and Nationality Act (“INA”) section 212(c) as a long-term permanent resident. Id. The hearing officer set August 10, 1992, as the deadline for filing the requisite paperwork and paying the requisite fees. Id. at 10–11. He also warned Ms. Bolieiro that if she did not file the application by August 10, 1992, then he would consider the application abandoned and order her deported. Id. at 12. Ms. Bolieiro did not file an application for INA section 212(c) relief. Gov't Opp'n 4. On September 30, 1992, the hearing officer ordered her deported. Order Show Cause, Notice Hr'g, & Warrant Arrest Alien, Ex. 3, Decision Immigration Judge (“1992 Decision Immigration Judge”), ECF No. 30–2. She never appealed the order, Gov't Opp'n 4, and has claimed that she was unaware of “her status of deportation” until 1994, when she was detained by immigration officials, 1999 Mot. Reopen ¶ 3.

According to Ms. Bolieiro, she was released by immigration officials “pursuant to an agreement ... that she provide cooperation,” id., and she became a confidential informant (“CI”), CI number XBOS1998011, Def.'s Mem. 2. She remained a CI from 1995 until 1999, when she was terminated. Id. Despite her detention in 1994, Ms. Bolieiro claims to have been unaware of the 1992 deportation order. See 1999 Mot. Reopen ¶ 3; Def.'s Mem. 2. Based on representations of immigration officials, she believed instead “that she was in compliance with them and that her status in the [c]ountry was not in jeapordy [sic].” 1999 Mot. Reopen ¶ 3.

Upon her termination as a CI, she was taken back into custody by immigration officials. See Gov't Opp'n 4; Def.'s Mem. 2. Ms. Bolieiro claims that it was at this time that she learned of the 1992 deportation order and began to challenge it. See Def.'s Mem. 2; Gov't Opp'n 4. Through counsel, Ms. Bolieiro asked for a stay of her deportation and filed a motion to reopen her immigration proceedings. Gov't Opp'n 4. The same hearing officer denied the motion to reopen on May 7, 1999. Order Show Cause, Notice Hr'g, & Warrant Arrest Alien, Ex. 6, Decision Immigration Judge (“1999 Decision Immigration Judge”), ECF No. 30–5.

In that decision, the hearing officer stated that the motion to reopen was denied because the motion was untimely, because it failed to comply with the regulatory requirements for such filings like the inclusion of evidence showing the payment of the proper fee and of a completed section 212(c) application, and as a matter of discretion.2Id. at 2–3.

Ms. Bolieiro was removed from the United States on June 3, 1999. Gov't Opp'n 4. At some point, Ms. Bolieiro returned to the United States and entered without inspection. See id.; Def.'s Mem. 3. Ms. Bolieiro was arrested by immigration officials on May 14, 2011. Gov't Opp'n 4. She was indicted in this case for unlawful reentry on June 8, 2011. Id.

The New Hampshire Superior Court vacated Ms. Bolieiro's 1991 conviction on November 7, 2011. Id. at 5; Def.'s Status Report ¶ 7. The Assistant County Attorney recommended vacating the conviction and noted that the state would nol pros the indictment. Agreement. The conviction was constitutionally infirm because it violated the principle recently announced by the Supreme Court in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), that counsel must inform her client whether his plea carries a risk of deportation,” id. at 1486. Gov't Opp'n 5; Def.'s Status Report¶ 7; Agreement.

With the dismissal of the underlying conviction in hand, Ms. Bolieiro moved to reopen the 1992 deportation order on December 28, 2011 (2011 motion to reopen). Def.'s Status Report ¶ 8. Further, on January 5, 2012, she also submitted additional materials claiming eligibility for relief under the Violence Against Women and Department of Justice Reauthorization Act of 2005 (“VAWA”). Order Show Cause, Notice Hr'g, & Warrant Arrest Alien, Ex. 7, Resp't's Mot. Reopen (“2012 IJ Opinion”) 2, ECF No. 30–6.

The same hearing officer denied the 2011 motion to reopen on January 31, 2012. Id. at 4. He also denied a motion to reconsider this denial on March 7, 2012. Order Show Cause, Notice Hr'g, & Warrant Arrest Alien, Ex. 8, Lucia Maria Boliero Deportation Proceedings Appeal (“BIA Decision”) 1, ECF No. 30–7. In rejecting the 2011 motion to reopen, the hearing officer found that he did not have jurisdiction to consider the motion. 2012 IJ Opinion 3. Much of the reasoning for this decision was based on the fact that Ms. Bolieiro “did not request [the] vacatur until October 5, 2011, almost two decades after her removal had been effectuated.” 3Id. The hearing officer blamed Ms. Bolieiro for “fail[ing] to institute proceedings to vacate her conviction prior to her removal, and instead ‘sle[eping] on her rights until after deportation has been accomplished.’ Id. (quoting 4Matter of C-----, 8 I. & N. Dec. 611, 614 (BIA 1960)).5 As a result, he found that the enforcement of a deportation order based on a now-vacated conviction was not a “gross miscarriage of justice” because the order was proper under the law at the time of execution. See id. Furthermore, the hearing officer found that “exceptional circumstances” did not exist, id., despite the showing that Ms. Bolieiro lost her lawful permanent resident status and was ordered deported due to a conviction that was later vacated as constitutionally infirm.

Ms. Bolieiro appealed from the denials of the motion to reopen and the motion for reconsideration to the Board of Immigration Appeals (“BIA”). Def.'s Status Report (“Second Status Report”) ¶ 6, ECF No. 12. On May 29, 2012, the BIA dismissed this appeal. BIA Decision. The BIA agreed with the hearing officer, writing:

An alien has received due process where, at the time of her departure, she had been convicted of a crime triggering the relevant deportation provisions, her removal proceeding came to a lawful conclusion before her conviction was vacated, and, with benefit of appropriate notice, she received a hearing before an Immigration Judge and an opportunity for appeal.

Id. at 3. On June 27, 2012, Ms. Bolieiro appealed this denial to the First Circuit Court of Appeals where it is now pending. United States v. Boliero (BIA 2012), appeal docketed, No. 12–1807 (1st Cir. June 27, 2012); Second Status Report ¶ 7.

Finally, Ms. Bolieiro has been found to be prima facie eligible for relief under VAWA. Second Status...

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