United States v. Phillips

• Decision Date: 03 August 2015
• Docket Number: No. 13–CR–631 (RJD).,13–CR–631 (RJD).
• Citation: 120 F.Supp.3d 263
• Parties: UNITED STATES of America, v. Shanado PHILLIPS, Defendant.
• Court: U.S. District Court — Eastern District of New York

120 F.Supp.3d 263

UNITED STATES of America,

v.Shanado PHILLIPS, Defendant.

No. 13–CR–631 (RJD).

United States District Court, E.D. New York.

Signed Aug. 3, 2015.

Melody Wells, United States Attorney's Office, Brooklyn, NY, for United States of America.

Kannan Sundaram, Federal Defenders, Brooklyn, NY, for Defendant.

MEMORANDUM & ORDER

RAYMOND J. DEARIE, District Judge.

Defendant Shanado Phillips is charged under 8 U.S.C. §§ 1326(a) and 1326(b)(2) with illegal reentry into the United States subsequent to deportation for an aggravated felony. Phillips moves to dismiss the indictment pursuant to 8 U.S.C. § 1326(d) on the basis of a fundamental procedural error in his removal proceeding. For the reasons stated below, the Court grants defendant's motion.

BACKGROUND

Phillips was born in Jamaica. In 1983, at the age of nine or ten, he moved to the United States with his mother, twin brother, and younger sister. His father and older sister were already living in the United States. Phillips and his family lived in Brooklyn with his aunt for a few years until they were able to afford their own apartment. Two more of Phillips's sisters then moved from Jamaica to join the family. All of the members of Phillips's immediate family and much of his extended family now live legally in the United States.

Phillips was granted status as a permanent resident a year after moving to the United States, and he attended New York City public schools. He attended Jackie Robinson Junior High, and then Automotive High School. During high school, Phillips worked at an automobile service garage for the sanitation department. After graduating high school, Phillips worked a variety of jobs, including as a custodian at the World Trade Center, a messenger for a service in Manhattan, a sales associate at the Gap Store, a parking attendant at Shea Stadium, and a plumber's assistant. He also enrolled in college, taking classes in business management and then heating ventilation and air conditioning.

During these years, it is clear that Phillips played a significant role in the lives of a number of his family members. His mother testified that he would help her with chores, take her to medical appointments, and contribute financially. Phillips's sisters also testified that he served as a father figure for many of his nieces and nephews whose biological fathers were not present in their lives.

Phillips's brief but not insignificant criminal history began and ended when he was 21 years old. On January 29, 1995, Phillips was arrested for armed robbery. His brother was competing with another man for the affections of a woman, and Phillips agreed to help his brother confront the man. When the man became aggressive, Phillips waved an inoperable gun in the air to scare the man off. Phillips and his brother then robbed the man of his personal belongings. Phillips was arrested and indicted in Kings County Supreme Court for robbery in the first degree, two counts of robbery in the second degree, and three counts of grand larceny in the fourth degree. He was released on bail and continued to attend school and work.

A few months later, on June 19, 1995, Phillips again committed another robbery. Phillips testified that he was motivated to steal money to give to his family before he was sent to prison for the first offense. Phillips hatched a plan with a friend of his to rob a fast food restaurant where the friend worked. The plan was for Phillips to bring a fake weapon, put on an act for the restaurant employee not in on the plot, and then steal some money. Phillips was arrested and indicted in New York County Supreme Court for robbery in the first degree, robbery in the second degree, and unlawful imprisonment for a robbery.

On July 10, 1995, Phillips pled guilty in Kings County Supreme Court to robbery in the second degree, and admitted that he had a handgun during the offense. On September 12, 1995, he was sentenced to 2 to 6 years' imprisonment. On June 13, 1996, for his second robbery, Phillips pled guilty in New York County Supreme Court to robbery in the first degree. At his plea, Phillips admitted to brandishing a pistol, although he now claims there was no gun used during the robbery.¹ Phillips was sentenced on June 27, 1996, to 2 ½ to 7 ½ years' imprisonment, to run consecutively to the sentence imposed for his first robbery.

While incarcerated, Phillips began to turn his life around. As he told the Court, he "made up [his] mind from that point ... [that he] would never return [ ] behind bars" and would "look forward to being a better man." He took a number of vocational programs in which he excelled. For instance, in his welding class, the instructor wrote on a final evaluation that Phillips's work was "outstanding" and that he had a good "attitude and drive." He also became certified as an HIV and AIDS prevention counselor, and taught and worked with other inmates.

Phillips maintained a close relationship with his family while in prison. A number of his relatives testified to the important role Phillips continued to play in their lives even while he was incarcerated. For example, Phillips's nephew testified that Phillips was a "second father" to him and taught him how to cook. Phillips's niece testified that even from prison he was her confidant, encouraging her to stay in school and pursue higher education and acting as a key source of support when she was diagnosed with lupus.

On February 7, 1997, while Phillips was serving his prison sentences, the Immigration and Naturalization Service ("INS") notified him that he was subject to deportation as a result of his convictions and issued a warrant for his arrest. On May 7, 1997, Phillips appeared for a deportation proceeding before an immigration judge ("IJ"), but the proceeding was adjourned so he could obtain an attorney. On July 10, 1997, the deportation hearing was reconvened and Phillips, unable to procure an attorney, proceeded pro se. Finding that the INS had proven that Phillips was "an alien from Jamaica" that has been "convicted of an aggravated felony, second degree robbery," the IJ ordered Phillips deported to Jamaica. The IJ also told Phillips that "there is no relief that I'm aware of ... that would allow you to stay in this country legally." The IJ asked Phillips whether he wished to appeal; Phillips confirmed that he did, and the IJ gave him the paperwork for an appeal. No appeal, however, was taken.

On September 13, 2000, Phillips moved pro se to reopen the deportation proceedings, claiming that he had been denied an opportunity to apply for a discretionary waiver of deportation under former § 212(c) of the Immigration and Nationality Act. On October 5, 2000, the IJ denied the motion as untimely. On February 23, 2001, Phillips appealed the denial of his motion to reopen. The Board of Immigration Appeals ("BIA") reopened the proceeding "because of a significant change in the law in 2000," and remanded the matter to the IJ to "afford[ ] [Phillips] an opportunity to apply for relief under section 212(c)."

On June 11, 2001, the IJ held a hearing and informed Phillips that a hearing would be held on July 25, 2001, "to see whether or not [the IJ would] let [Phillips] stay here." Phillips appeared pro se. The IJ instructed Phillips to "bring some witnesses who can tell about the good things that [Phillips has] done since [he has] been in the United States." The IJ also told Phillips that "letters from correctional officers or priests or ministers or whatever within the prison system or people on the outside" can be helpful at the hearing. That hearing, however, was never held. At the prompting of the INS, the IJ determined that because Phillips had "served more than five years ... [he was] not qualified for the 212(c) hearing." The IJ, however, instructed Phillips to appeal, stating that "you have nothing to lose by appealing [that decision], and if I were in your shoes, I'd appeal it too.... I'm going to tell you how to appeal this ... you should appeal ... [on the grounds that] the immigration judge should not have applied that five year bar." The IJ gave Phillips the paperwork for an appeal and told him he had 30 days to appeal. This time Phillips did appeal (again, pro se ). On September 14, 2001, the BIA affirmed the decision without opinion. Phillips moved pro se for reconsideration, and on November 15, 2001, the BIA again denied his appeal, this time writing that because Phillips's "actual term of imprisonment exceeded five years" he was not eligible for § 212(c) relief. Phillips did not appeal that decision.

On November 18, 2004, more than three years after the BIA's final order of removal, Phillips was removed from the United States to Jamaica. Phillips has no family or friends in Jamaica. Phillips stayed with men he met while incarcerated, struggled to find work, and had to rely on his family to send money.

In 2006 Phillips reentered the United States. Upon returning to the United States, he began working for a contracting company. He excelled in that position. A letter from the president of that company states that Phillips is "a self-starter" with an "impeccable work ethic," and that he was "an integral part of [the] team." After Hurricane Sandy, this company was so busy that it began referring overflow projects to Phillips. With the encouragement of his employer and family, Phillips eventually opened his own home renovation company—Phillips Perfections LLC—and the record is replete with letters from his satisfied customers. In 2010 he married Geraldine Phillips, a U.S. citizen. They have two children—Yatzany and Shanado Jr.—who have submitted letters about the important role their father plays in their lives. By all accounts, Phillips and his wife have been successful in what he described as "breaking the generational cycle with [his] children." Phillips has in his own way broken with his prior life. In addition to succeeding in business, Phillips has also obtained a license, paid his taxes, made...