United States v. Gutierrez-Campos, 21 Cr. 40 (JPC)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtJOHN P. CRONAN, United States District Judge:
Docket Number21 Cr. 40 (JPC)
Decision Date31 January 2022



No. 21 Cr. 40 (JPC)

United States District Court, S.D. New York

January 31, 2022


JOHN P. CRONAN, United States District Judge:

Defendant Raul Gutierrez-Campos is charged in an Information with one count of illegal reentry, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). He has moved to dismiss the Information, raising various arguments to collaterally challenge the validity of the removal order issued at his immigration court proceedings in July 2000. Defendant first argues that the removal order was invalid because certain defects in the initial Notice to Appear deprived the immigration judge of jurisdiction. He further contends that his removal proceedings violated due process because the immigration judge failed to afford him the opportunity to apply for voluntary departure. And but for that error, Defendant argues, there was a reasonable probability that he would have sought and been granted voluntary departure.

As discussed in further detail below, the Court finds that the immigration judge who presided over Defendant's removal proceedings had authority to enter the removal order. But because the Court finds that the New York statute under which Defendant was convicted criminalizes narcotics activity involving cocaine isomers that are not covered by the federal definition of controlled substances, his New York conviction did not qualify as an aggravated felony under the immigration laws at the time of his removal proceedings. Defendant therefore was eligible to seek voluntary departure in immigration court. While Defendant did not seek


administrative or judicial appeal of the question of his eligibility for voluntary departure, Second Circuit precedent excuses that failure to exhaust because Defendant did not knowingly and intelligently waive his right to appeal. The Court also finds that there is a reasonable probability that Defendant would have sought and received voluntary departure from the immigration court. Because that relief would prevent the Government from satisfying an element of a section 1326(a) offense, Defendant's motion to dismiss the Information is granted.

I. Background

A. Facts

The parties do not dispute the relevant facts.[1] Defendant is a citizen of Mexico who came to the United States as a child in approximately 1985 or 1986. Wheeler Declaration, Exh. A (“Gutierrez-Campos Declaration”) ¶ 4. For years, Defendant lived in the United States without lawful authority to do so. Opposition at 2. He was arrested in 1998 and charged in New York state court with criminal sale of a controlled substance on school grounds and criminal possession of a controlled substance in the third degree. Id. at 3. In February 1999, Defendant pleaded guilty in New York County Supreme Court to attempted criminal sale of a controlled substance in the third degree, in violation of New York Penal Law sections 110 and 220.39. Motion at 3; see Wheeler Declaration, Exh. B. Defendant absconded after pleading guilty and was arrested on a bench warrant in November 1999. Opposition at 3. On December 20, 1999, Defendant was sentenced to one year in prison (the “New York Conviction”). Wheeler Declaration, Exh. B.


Defendant's judgment of conviction for the New York Conviction indicates that he was convicted of attempting to sell cocaine. Id.

While detained in state custody for the New York Conviction, Defendant was interviewed by an officer with the former Immigration and Naturalization Service (“INS”), who determined that Defendant's conviction for attempted sale of cocaine qualified as an “aggravated felony” and lodged a detainer with the New York City Department of Corrections.[2] Motion at 3; Opposition at 3; Wheeler Declaration, Exhs. C, D. On December 28, 1999, Defendant requested a hearing before the immigration court to determine whether he may remain in the United States. Wheeler Declaration, Exh. C. On January 31, 2000, an INS officer prepared and signed a Form I-862, captioned “Notice to Appear, ” which directed Defendant “to appear before an immigration judge of the United States Department of Justice.” Id., Exh. E at 1. The Notice to Appear did not identify a specific location, date, or time for that appearance, and instead indicated that such information was to be calendared and notice was to be provided by the Office of the Immigration Judge. Id.

The Notice to Appear alleged, inter alia, that Defendant is not a citizen of the United States, that he entered the United States without inspection, and that he was convicted in 1999 of


attempted criminal sale of a controlled substance (i.e., cocaine) in the third degree in New York state court. Id. at 2. On the basis of those allegations, the Notice to Appear charged Defendant as removable from the United States under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A)(i), as a person present in the United States “without being admitted or paroled, ” and under section 212(a)(2)(A)(i)(II) of the INA, 8 U.S.C. § 1182(a)(2)(A)(i)(II), “as an alien who has been convicted of . . . a violation or a conspiracy or attempt to violate any law or regulation . . . relating to a controlled substance (as defined in section 102 of the Controlled Substances Act, 21 U.S.C. 802).” Wheeler Declaration, Exh. E at 2.

After completing his sentence for the New York Conviction, Defendant was transferred to INS custody and was served with a copy of a warrant for his arrest, along with a form advising that he would be detained pending his removal proceedings and any removal. Id., Exh. F. An undated Form I-830, captioned “Notice to EOIR: Alien Address, ” informed the immigration court in Oakdale, Louisiana, that Defendant was being detained by INS at the Federal Detention Center in Oakdale. Id., Exh. H. The Form I-830 also stated that the “[c]harging document will be filed with the [Office of the Immigration Judge] in Oakdale, LA” and that a “[c]opy of this form has been given to [Defendant] for notification of jurisdiction/commencement of proceedings as required per CFR 3.14.” Id. On July 13, 2000, the Oakdale immigration court served on Defendant via mail a Notice of Hearing in Removal Proceedings informing him that “a hearing in this case is scheduled/rescheduled before an Immigration Court on Jul[y] 18, 2000 at 1:00 P.M. at 1900 E. Whatley Road, Oakdale, LA 71463” and that “any motions . . ., applications, or other correspondence concerning this case should be filed with the Immigration Court at: 1900 E. Whatley Road, Oakdale, LA 71463.” Id., Exh. I. According to the receipt stamp, this Notice of Hearing was received by “INS-Litigation Oakdale, LA” on July 14, 2000, at 10:03 a.m. Id.


On July 18, 2000, Defendant appeared in person for a removal hearing before an immigration judge (the “IJ”). Wheeler Declaration ¶¶ 16-17, Exhs. J, K. The hearing was conducted in English with the assistance of a Spanish-language interpreter. Id., Exh. K (recording); Dkt. 55-1 (transcript with translation). At the start of the hearing, the IJ advised Defendant that he may request more time to better prepare his case or to seek an attorney, or he may proceed with the hearing at that time. Id. Defendant responded: “I wish to sign the papers to leave the country.” Id. The IJ then explained the nature of immigration court and advised Defendant of his right to counsel and to appeal an adverse decision to the Board of Immigration Appeals (“BIA”) and to the federal courts. Id. Defendant responded “yes” in acknowledgement. Id. The IJ also confirmed service and receipt of Defendant's immigration forms, including the Notice to Appear, the notice of appeal form, and proof of his conviction. Id. Defendant, once again, responded “yes.” Id.

Defendant then admitted to the factual allegations in the Notice to Appear, including that he was “convicted for attempted sale of cocaine” in 1999 in New York. Id. Based on Defendant's acknowledgements and admissions, the IJ found Defendant “removable as charged.” Id. Defendant informed the IJ that he wished to be removed to Mexico. Id. The IJ inquired whether the Government was aware of any relief available to Defendant, to which the Government responded “no.” Id. After ordering Defendant removed to Mexico, the IJ asked Defendant whether he understood the decision. Id. Defendant responded “yes.” Id. The IJ asked Defendant whether he wished to appeal the IJ's decision. Id. Defendant answered “no.” Id.; see also Wheeler Declaration, Exh. L (IJ's order of removal indicating appeal was waived). At no point during the removal hearing did the IJ advise Defendant of the availability of a discretionary form of relief from removal called voluntary departure. Gutierrez-Campos Declaration ¶ 8; Wheeler


Declaration, Exh. K; Dkt. 55-1. Defendant contends that had he been aware of the possibility of voluntary departure, he would have sought that relief. Gutierrez-Campos Declaration ¶ 8.

Defendant was removed to Mexico on July 25, 2000. Opposition at 6. The Government alleges that, sometime following his removal, Defendant returned to the United States and, on February 1, 2020, Defendant was arrested in the Bronx for assault in the third degree, in violation of New York Penal Law section 120.00(1). Dkt. 1 ¶ 4.

B. Procedural History

On October 19, 2020, Defendant was charged in a criminal complaint with illegal reentry in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2) and an arrest warrant was issued. Dkts. 1, 2. He was arrested on December 1, 2020 by federal authorities, and, on January 19, 2021, he waived indictment and pleaded not guilty to an Information that charged him with one count of illegal reentry. Dkts. 7, 8, 12.

On April 16, 2021, Defendant moved to dismiss the Information on the ground that the IJ's order of removal was invalid. Defendant argues that the immigration...

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