United States v. Moncrieffe
| Decision Date | 10 March 2016 |
| Docket Number | 15–CR–366 |
| Citation | 167 F.Supp.3d 383 |
| Parties | United States of America, v. Shani Moncrieffe, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Jan Alison Rostal, Federal Defenders of New York, Inc., One Pierrepont Plaza, 16th Floor, Brooklyn, NY 11201, (718) 330–1207, Email: Jan_ Rostal@fd.org, S. Isaac Wheeler, Federal Defenders of New York, Inc., 52 Duane Street, 10th Floor, New York, NY 10007, (212) 417–8717, Email: isaac_ wheeler@fd.org, for Shani Moncrieffe also known as Shawn Moncrieffe also known as Sean Lyons.
Alicia Nicole Washington, U.S. Attorney's Office, Eastern, District of New York, 271 Cadman Plaza East, Brooklyn, NY 11201, (718) 254–6009, Email: alicia.washington@usdoj.gov, for United States of America.
Table of Contents
I. Introduction ... 387
II. Factual Background ... 387
A. Early Life ... 387
B. 1993 Robbery Arrest ... 388
C. Robbery Indictment and Guilty Plea ... 388
D. Criminal Sale of a Controlled Substance ... 388
E. Immigration Proceedings ... 388
F. Return to United States ... 394
G. Arrest and Indictment in Instant Case ... 394
III. Defendant's Motion to Dismiss Indictment ... 395
IV. Law ... 395
A. Illegal Reentry ... 395
B. Collateral Challenge to Prior Deportation Order ... 396
V. Application of Law to Facts ... 398
A. Defendant Exhausted Administrative Remedies ... 398
B. Defendant Denied Opportunity for Judicial Review ... 398
C. Deportation Order Fundamentally Unfair ... 400
VI. Conclusion ... 414
I. Introduction
This case joins a distressing group in which an injustice has been committed because a person threatened with deportation has no attorney. Shani Moncrieffe, the defendant, faced deportation proceedings in 1995, after he pled guilty in a New York State court to the crime of robbery in the first degree. Nineteen years old, in shackles, without counsel and without the guidance of anyone, including his mother who was on life support, Mr. Moncrieffe was tried pro se before an immigration judge and the Board of Immigrations Appeal (“BIA”). He was found to be deportable and ineligible for further relief because they assumed, improperly, that he had been convicted in New York of an aggravated felony and a firearms offense.
Deported, he soon returned to the United States. Some twenty years later, after a life free of crime and after becoming a role model for his family and community, Mr. Moncrieffe again faces deportation. He has been charged with the crime of illegal reentry.
On December 16, 2015, he filed a motion to dismiss the indictment in the instant case, challenging the validity of the 1995 deportation order. Alleged is that the deportation following his 1993 state conviction was procedurally unfair and obtained in violation of immigration law and due process. If this claim is established—as it is—the 1995 deportation cannot serve as the basis for the current illegal reentry criminal prosecution.
Mr. Moncrieffe's deportation was improper. It was based on a misapplication of the categorical approach in determining whether his state conviction supported removal. Had the categorical approach been properly applied, he would not have been found to be deportable, the immigration proceedings would have been terminated, he would not have been deported, and he would not have entered the country illegally. See infra Part V.C.1–3.
Defendant's motion to dismiss the indictment is granted.
II. Factual Background
A. Early Life
Shani Moncrieffe is a 40 year old citizen of Jamaica. Decl. of Jan A. Rostal in Support of Def.'s Motion to Dismiss Indictment, Dec. 16, 2015, ECF No. 24 (“Rostal Decl.”), at ¶¶ 4, 17. He first arrived in the United States in 1982, at age seven, when he immigrated with his mother and two siblings. See id ., Ex. D, Immigrant Visa and Alien Registration (“Ex.D”), at SM000303. He entered as a lawful permanent resident on an immigrant visa based on the petition of his mother. Id .; see also Gov't's Mem. of Law in Opp'n to Def.'s Mot. to Dismiss Indictment, Feb. 2, 2016, ECF No. 29 (“Gov't Opp'n Mem.”), Ex. 1, Record of Deportable Alien (“Ex.1”), at SM000051.
The defendant grew up in small low-rent apartments in Queens, where he lived with his mother, two sisters, his stepfather, stepsiblings, and adopted sister. Rostal Decl., at ¶ 5. His mother worked at night as a nursing home caretaker and took part-time weekend jobs to support the family. Id . As a boy, Mr. Moncrieffe held a variety of jobs, including running a paper route, bagging groceries, and bussing tables at restaurants. Id .
Defendant struggled in school and was repeatedly held back. Id . at ¶ 6. He attended, but dropped out of, Springfield Gardens High School, which closed in 2008 due to low test scores and a high drop-out rate. Id . Drugs and gang activity were prevalent problems in his high school and among his neighborhood peers. Id .
B. 1993 Robbery Arrest
In 1993, at age eighteen, Mr. Moncrieffe was arrested after he and two other boys robbed passengers on a bus. Id . at ¶ 7. He claims that the crime was carried out to help a friend repay a debt to a drug dealer who had threatened violence in case of non-payment. Id . at ¶ 6.
C. Robbery Indictment and Guilty Plea
On August 26, 1993, defendant was indicted in Queens County, New York, for robbery in the first degree in violation of New York Penal Law sections 160.15(2) and 160.15(4). See Gov't Opp'n Mem., Ex. 2, People v. Pope, et al., Indictment No. 3352/93 (“Ex.2”), at SM000253–54. Charged was that on or about July 30, 1993, the defendant, together with two other named persons: (1) “forcibly stole ... United States currency ... and in the course of the commission of the crime or of immediate flight therefrom,” the defendant was “armed with a deadly weapon to wit: a handgun”; and (2) forcibly stole money from an individual, and “displayed what appeared to be a handgun.” See id . at SM000254.
Shortly after he was charged, and on the advice of appointed counsel, Mr. Moncrieffe pled guilty to the crime of robbery in the first degree in violation of New York Penal Law section 160.15. See Rostal Decl., at ¶ 7; see also Gov't Opp'n Mem., Ex. 3, Sentence & Commitment, Oct. 22, 1993 (“Ex.3”), at SM000198. There is no satisfying proof that he pled to any specific subsection of section 160.15. He was sentenced to an indeterminate term of imprisonment of between three and one-third to ten years. See Gov't Opp'n Mem., Ex. 3, at SM000198. Defendant states that he was not advised of the possibility that he could be deported as a result of his guilty plea. Rostal Decl., at ¶ 7.
D. Criminal Sale of a Controlled Substance
In June 1993, prior to being sentenced for the robbery, defendant was separately indicted in Kings County for criminal sale of a controlled substance in the third degree in violation of New York Penal Law section 220.39(1). See Gov't Opp'n Mem., Ex. 6, People v. Bradum, et al., Indictment No. 6170/93 (“Ex.6”), at SM000214–15. Charged was that the defendant, together with two other named persons, knowingly and unlawfully sold cocaine. See id . In March 1994, Mr. Moncrieffe pled guilty to criminal sale of a controlled substance in the third degree in violation of New York Penal Law Section section 220.39(1). See Gov't Opp'n Mem., Ex. 7, Sentence & Commitment, Mar. 28, 1994 (“Ex.7”), at SM000217. He was sentenced to one to three years imprisonment to run concurrently with his sentence for robbery in the first degree. Id.
E. Immigration Proceedings
On October 19, 1994, the Immigration and Naturalization Service (“INS”) issued an Order to Show Cause based on defendant's New York robbery conviction. Rostal Decl., Ex. F, Order to Show Cause and Notice of Hearing, Oct. 19, 1994 (“Ex.F”). Charged was that Mr. Moncrieffe was a “deportable alien” pursuant to two grounds: (1) conviction of an aggravated felony of robbery; and (2) conviction of a firearms violation. See § 241(a)(2)(A)(iii), 8 U.S.C. § 1251(a)(2)(A)(iii) (1994); § 241(a)(2)(C), 8 U.S.C. § 1251(a)(2)(C) (1994); Rostal Decl., at ¶ 8 and Ex. F.
On February 9, 1995, an immigration judge conducted a deportation hearing while Mr. Moncrieffe was serving his state sentence at the Ulster Correctional Facility in Napanoch, New York. Rostal Decl., Ex. A, Oral Decision of the Immigration Judge and Transcript of Proceedings, Feb. 9, 1995 (“Ex.A”). Aged nineteen, Mr. Moncrieffe appeared in shackles and without counsel. Id . The immigration judge informed Mr. Moncrieffe of his right to an attorney, but no effort was made by anyone to provide an attorney for this administrative hearing:
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