United States v. Daley, Docket No. 11–2987.

• Decision Date: 07 December 2012
• Docket Number: Docket No. 11–2987.
• Parties: UNITED STATES of America, Appellee, v. Courtney DALEY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

702 F.3d 96

UNITED STATES of America, Appellee,

v.Courtney DALEY, Defendant–Appellant.

Docket No. 11–2987.

United States Court of Appeals,Second Circuit.

Argued: Sept. 6, 2012.

Decided: Dec. 7, 2012.

Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY, for Appellant Courtney Daley.

Tiana A. Demas (David C. James, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee United States of America.

Before: JACOBS, Chief Judge, CARNEY, Circuit Judge, and GLEESON, District Judge.^*

DENNIS JACOBS, Chief Judge:

Defendant Courtney Daley appeals from the judgment of the United States District Court for the Eastern District of New York (Korman, J.), convicting him of illegal reentry under 8 U.S.C. § 1326, following a conditional plea. Daley moved to dismiss the indictment on the ground that he was given no notice of the 1998 removal proceedings after which a removal order was entered in absentia. The United States District Court for the Eastern District of New York (Korman, J.) ruled that the entry of the removal order was not fundamentally unfair because there was no reasonable probability that Daley would have obtained relief had he received notice of the removal proceeding and been present. While his 1998 immigration proceedings were pending, Daley was arrested for robbery under the Hobbs Act and detained at the Metropolitan Detention Center in Brooklyn, New York. Although he notified the Immigration and Naturalization Service (“INS”) of his new address, INS did not properly process the address change and failed to notify Daley of his ongoing immigration proceedings, so that he was ordered removed in absentia.

Daley was removed to Jamaica, his country of origin, but he subsequently returnedto the United States. He was arrested again—this time following a domestic altercation with his estranged wife—and indicted for illegal reentry under 8 U.S.C. § 1326. He moved to dismiss the indictment pursuant to 8 U.S.C. § 1326(d), on the ground that his 1998 removal order was fundamentally unfair because he was removed in absentia. In order to show fundamental unfairness, however, Daley had to show that, but for the Government's error, there was a reasonable probability that he would have obtained relief from the Immigration Judge (“IJ”). The district court concluded that there was no such probability. Daley ultimately entered a conditional guilty plea that preserved his right to appeal the denial of his motion to dismiss the indictment. Daley was sentenced to 30 months' imprisonment and timely appealed. For the reasons discussed below, we affirm the judgment.

BACKGROUND

Daley was born in Kingston, Jamaica, in 1968, and came to the United States at the age of fifteen as a lawful permanent resident. In 1995, Daley was indicted in New York for possession of a loaded firearm and bail jumping. After he served a one-year sentence, INS initiated removal proceedings on January 14, 1998, pursuant to Section 237(a)(2)(c) of the Immigration and Nationality Act (which allows removal of any alien convicted of certain firearm offenses).

At Daley's initial appearance before the IJ in February 1998, he was granted additional time to find a lawyer. A preliminary hearing was eventually scheduled for September 18, 1998. In May 1998, however, Daley was arrested and arraigned in the Eastern District of New York on federal robbery charges under the Hobbs Act (18 U.S.C. § 1951). Daley pled guilty on August 18, 1998, but that conviction did not become final until March 1999.

During the summer of 1998—because of his Hobbs Act arrest—Daley was held without bail at the Metropolitan Detention Center (“MDC”) in Brooklyn. At Daley's request, his girlfriend notified the INS that he was in custody at the MDC and submitted a change-of-address form on his behalf. It was received by INS and listed Daley's full name, alien registration number, and Bureau of Prisons number, clearly indicating that Daley was now residing at the MDC in Brooklyn.

INS somehow misplaced or mishandled this form. Presumably because he was not informed of the date, Daley failed to appear for his September 1998 hearing before the IJ. At the hearing, INS suggested that Daley might be incarcerated, and the IJ adjourned to permit INS counsel to determine Daley's whereabouts. Daley did not appear at the subsequent hearing on October 23, 1998, and INS wrongly informed the IJ that Daley was not in federal or state custody. The IJ ordered Daley removed in absentia.

Daley was subsequently sentenced to 37 months' imprisonment for his Hobbs Act conviction, and upon completing that sentence in January 2001, he was deported to Jamaica. Within a year, Daley returned to the United States.

In February 2010, Daley was again arrested—this time for allegedly threatening his then-estranged wife in Brooklyn. As a result of that arrest, immigration authorities learned of Daley's unlawful presence in the United States. A grand jury indicted Daley in the Eastern District of New York for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a), (b)(2).

Daley moved to dismiss the indictment pursuant to Rule 12 of the Federal Rules of Criminal Procedure and 8 U.S.C. § 1326(d). Daley argued, pursuant to 8 U.S.C. § 1326(d), that it would be fundamentally unfair to rely on the 1998 removal order to establish an element of the illegal reentry offense because the 1998 removal order was entered in violation of his due process rights.

At a November 2010 evidentiary hearing on Daley's motion to dismiss the indictment, Marguerite Mills, Assistant Chief Counsel for U.S. Immigration and Customs Enforcement, testified as follows concerning INS policy in place at the time: if the IJ had been notified of Daley's Hobbs Act guilty plea on the day of Daley's removal hearing (October 23, 1998), the IJ would have administratively closed the case until the Hobbs Act conviction became final; and after the conviction became final, the IJ could have reopened the case, denied Daley any discretionary relief (including cancellation of removal), and ordered him removed.

In response, Daley relied almost exclusively on United States v. Scott, 394 F.3d 111 (2d Cir.2005), arguing that the district court should not consider “future occurrences” when determining whether entry of the removal order was fundamentally unfair. Id. at 119.

The district court denied Daley's motion from the bench, on the ground that the failure of notice did not prejudice Daley because he would not have been granted cancellation of removal on October 23, 1998. The district court carefully distinguished Scott: “I'm not looking at future occurrences. I'm looking at what had occurred at the time of the hearing.... And it's what distinguishes Scott. In other words ... if I am going to look at all of the relevant factors at the time of the hearing, then you lose.” Tr. of Mot. Hr'g, at 39–40 (Nov. 22, 2010) (App. 208–09). The district court explained further:

[T]he temporal limitation of Scott deals with a crime that's committed after that hearing. If you wanted to consider[ ] what happened, all the relevant information as of the date of the hearing and the relevant information includes his guilty plea for which he was ultimately sentenced, and then the question becomes he wouldn't have gotten relief. At most, they would have put off the hearing but ... he probably wouldn't have gotten relief based on the admission that he made that he committed [Hobbs Act] extortion....

Id. at 43 (App. 212). In short, the district court found no reasonable probability that Daley would have been granted relief had he been present at the 1998 hearing, thus he was not prejudiced, and could not dismiss his indictment for illegal reentry under Section 1326(d). Id. at 52 (App. 221).

Daley thereafter entered a conditional plea to illegal reentry, preserving his right to appeal the denial of the motion to dismiss. On May 3, 2011, the district court sentenced Daley to 30 months' imprisonment. After the district court issued its judgment, Daley timely appealed the denial of the motion to dismiss the indictment.

DISCUSSION

Daley's appeal turns on a single issue: whether the district court properly determined that there was no reasonable probability that Daley would have obtained relief had he been notified of his removal proceeding. Before analyzing this issue in light of United States v. Scott, 394 F.3d 111 (2d Cir.2005), we review the relevant legal standards applicable in these circumstances.

I

The question whether the district court properly denied Daley's motion to dismiss the indictment is a mixed question of fact and law, subject to de novo review. United States v. Fernandez–Antonia, 278 F.3d 150, 156 (2d Cir.2002). We review the district court's factual findings for clear error. United States v. Cerna, 603 F.3d 32, 39 (2d Cir.2010).

Section 1326(d) places limits on an alien's ability to collaterally attack a removal order when seeking to dismiss an indictment for illegal reentry. In relevant part, Section 1326(d) provides:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order ... unless the alien demonstrates that—

(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.

8 U.S.C. § 1326(d). The only prong of Section 1326(d) at issue in this appeal is the third one: whether entry of the removal order was fundamentally unfair. The district court found—and the Government does not dispute—that Daley established the first two prongs ( i.e., exhaustion of administrative remedies and deprivation of opportunity for judicial review).

The alien bears the burden of...