United States v. Holmes
| Decision Date | 06 April 2022 |
| Docket Number | 21-CR-147 (NGG) |
| Parties | UNITED STATES OF AMERICA v. GEORGE ALPHONSON HOLMES, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Defendant George Holmes, a noncitizen from Jamaica, is charged with one count of illegal reentry in violation of 8 U.S.C §§ 1326(a) and (b)(2). (See Indictment (Dkt. 8).) Section 1326(a) makes it a crime for a person who “has been denied admission, excluded, deported, or removed” from the United States to reenter the country. 18 U.S.C § 1326(a). An element of this crime is a defendant's administrative removal order. Thus, the charge against Holmes turns on the validity of his prior removal order. (See Final Administrative Removal Order (Dkt. 15-3) at ECF p. 42.)
Holmes now moves to dismiss the indictment, attacking the removal order as invalid. He argues that the immigration judge erroneously concluded that his state convictions supporting removal were aggravated felonies, thus precluding Holmes from seeking, or being considered for, any form of relief from removal. He contends this was a prejudicial procedural error that altered the outcome of his removal proceeding, rendering his removal order invalid.
For the reasons explained below, the court agrees with Holmes and finds the underlying removal order invalid. Thus, it cannot support a charge of illegal reentry. Holmes's motion is therefore GRANTED, and the Indictment is DISMISSED.
George Holmes was born in Jamaica in 1969. He came to the United States at an early age, when he was either about ten months old, or four years old. The Immigration and Naturalization Service (“INS”) has no record of his entry. Holmes's father was a U.S. citizen; his mother was a lawful resident. In time, Holmes married a U.S. citizen, and they had four children in the United States. Despite his family's status and his longstanding residency in the United States, Holmes never obtained legal immigration status.
In 1992, Holmes was convicted of attempted criminal sale of a controlled substance in the third degree under New York Penal Law (“N.Y.P.L.”) §§ 110.00, 220.39(1). He received a sentence of one day in jail and five years of probation. In 1999, he was convicted for possession of a controlled substance in the third degree under N.Y.P.L. § 220.16(1).[1] According to court records, the 1992 conviction involved “crack/cocaine, ” and the 1999 conviction involved cocaine.
Although Holmes received a five-to-ten-year sentence for the 1999 conviction, he was accepted into New York's SHOCK Incarceration program at the Lakeview Correctional facility-a selective six-month program that provides an alternative to incarceration aimed at rehabilitation. During this program, the INS identified Holmes as a removable noncitizen, lodged a detainer with Lakeview, and prepared an administrative warrant for Holmes's arrest. In addition, the INS prepared a Form I-862, the “Notice to Appear, ” charging Holmes with removability based on his unlawful status and his criminal history.
At the end of the SHOCK program, on March 23, 2000, the INS took custody of Holmes. He was served a Form I-286, a “Notice of Custody Determination, ” informing him that he would be detained pending the immigration court's final determination of his case. The INS then filed the Notice to Appear with the immigration court in Batavia, New York. After additional filings, on April 4, the immigration court produced a notice to Holmes, informing him of an April 12, 2000 removal hearing.
Holmes appeared pro se for his removal hearing before an immigration judge (“IJ”) on April 12, 2000. The INS alleged Holmes was removable on three grounds: (1) being present without having been lawfully admitted or paroled, 8 U.S.C. § 1182(a)(6)(A)(i); (2) having been convicted of offenses “relating to a controlled substance (as defined in . . . 21 U.S.C. [§] 802), ” 8 U.S.C. § 1182(A)(2)(A)(i)(II); and (3) being an “alien who the . . . Attorney General knows or has reasons to believe . . . is or has been an illicit trafficker in any controlled substance or any listed chemical (as defined in . . . 21 U.S.C. [§] 802), ” 8 U.S.C. § 1182(a)(2)(C). (See also Ex. G to Wheeler Decl., Removal Hr'g, Tape 1, GAH000274, at 5:40 - 6:15.) The second and third drug-related removability charges were based on Holmes's 1992 and 1999 state convictions.
As the IJ reviewed these allegations, Holmes expressed disagreement about the record regarding his 1992 conviction. This prompted the IJ to advise Holmes to retain an attorney to review the allegations against him. But Holmes declined.
During the back-and-forth that followed, Holmes told the IJ, “[t]his man want to know what kind of waiver this man here got.”[2] (Id. at 7:32.) Again, the IJ responded by formally advising Holmes of his right to an attorney and offering Holmes an adjournment so that he may exercise that right. (Id. at 7:40 - 8:00.) Again, Holmes declined.
Holmes then expressed his desire to proceed. The IJ asked him to explain his earlier disagreement about his 1992 conviction. Rather than respond to the IJ's question, Holmes stated that and repeated that “[t]his man want to know what kind of rights he got, what kind of waiver, what kind of rights he got.” (Id. at 8:11 - 8:23.)
The questioning that followed focused on Holmes's alienage. He expressed not knowing whether he was ever granted lawful residency; he knew only that he had “been here all his life, ” or at least since he was four years old. (Id. at 9:00.) Because of this confusion, the IJ broke down the situation for Holmes:
(Id. at 9:21 - 10:08.) The IJ then suggested Holmes take an adjournment and retain a lawyer to determine his status. (Id. at 10:17.) Holmes countered by asking whether he could receive bail. At this point, the IJ paused the removal hearing, went off the record, and conducted a bond hearing (a separate proceeding), where the IJ found Holmes subject to mandatory detention based on his criminal convictions pursuant to 8 U.S.C. § 1226(c).
After the bond hearing, the IJ again urged Holmes to request an adjournment and speak with a lawyer to review the allegations. (Id. at 10:58 - 11:22.) Holmes objected, asking whether he “can't get a bail or nothing?” (Id. at 11:30.) The IJ reiterated his determination that Holmes was subject to detention. Holmes thus requested to “sign out right now, ” (id. at 11:45), prompting the IJ to explain the rights that Holmes would be afforded at this hearing, (id. at 12:02 - 12:54).
Continuing with the hearing, the IJ again asked Holmes whether he was a citizen of the United States. Holmes again explained that he did not know; he was told he was born in Brooklyn; he's been here all is life. (Id. at 13:05 - 13:17.) The IJ took Holmes's responses as a denial of the removability allegations. (Id. at 14:18 - 14:26.) In the ensuing exchange, Holmes again asked to “sign out” to avoid further proceedings and return to Jamaica. (Id. at 15:00 - 15:15.) But because of Holmes's responses regarding alienage, the IJ ordered a factual hearing focused on that subject for May 12, 2000. (Id. at 15:16 - 15:20, 16:26 - 16:30, 17:10 -17:26.)
Holmes objected to a continuance, emphasizing his desire to move forward. He said that, because he's “not eligible for no bail or nothing, ” he “just want[s] to move on”; he wished “to sign out” and return to Jamaica. (Id. at 18:15 - 18:30.) Over Holmes's objection, the IJ adjourned the hearing.
Holmes again appeared pro se for his removal hearing on May 12, 2000. But this time he conceded (based on a conversation with his mother) that he was not born in Brooklyn, and he was not a U.S. citizen. He also conceded that he had been convicted of the 1992 and 1999 drug offenses as alleged in the Notice to Appear. Holmes reviewed the evidence submitted in support of removal, asked the IJ limited questions about his charges (which the IJ answered), and then consented to the IJ considering that evidence in making his decision.
With this consent, the IJ dictated his decision. (Id. at 32:45.) First, the IJ determined Holmes had not met his burden to establish a prior lawful admission and found him removable as charged in the Notice to Appear. (Id. at 42:10 - 44:59.) The IJ held:
(Id. at Tape 2, GAH000275, at 01:48 - 03:03.) The IJ then ordered Holmes's removal to Jamaica.
Holmes however, explaining his interjection, rejected that his 1999...
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