US v. Cerna

• Decision Date: 27 April 2010
• Docket Number: Docket No. 09-1170-cr.
• Citation: 603 F.3d 32
• Parties: UNITED STATES of America, Appellee, v. Jose Ricardo CERNA, also known as Jose Cerna, also known as Rocardo Cerna, also known as Jason Padilla, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

603 F.3d 32

UNITED STATES of America, Appellee, v. Jose Ricardo CERNA, also known as Jose Cerna, also known as Rocardo Cerna, also known as Jason Padilla, Defendant-Appellant.

Docket No. 09-1170-cr.

United States Court of Appeals, Second Circuit.

Argued: March 18, 2010.

Decided: April 27, 2010.

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Daniel L. Stein, Assistant United States Attorney (Randall W. Jackson, Assistant United States Attorney, of counsel), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Darrell B. Fields, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

Before KATZMANN and HALL, Circuit Judges, and RAKOFF, District Judge.^**

KATZMANN, Circuit Judge:

This case gives us occasion once again to take note of the exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law. See Aris v. Mukasey, 517 F.3d 595, 596 (2d Cir.2008). Here, despite the fact that the immigration judge ("IJ") specifically found that the defendant was eligible for relief from deportation in the form of a waiver of inadmissibility under former § 212(c) of the Immigration and Naturalization Act ("INA"), 8 U.S.C. § 1182(c) (repealed 1996), and despite the fact that the defendant's counsel indicated that he would file an application for such relief, no application was ever filed. We hold today that the district court committed clear error when it found that the defendant knowingly and intelligently waived his right to contest the deportation order that was subsequently issued. Because the district court's determinations that the defendant did not meet the requirements of § 1326(d)(2) and (3) either were predicated on this erroneous factual conclusion or were legally erroneous, its decision cannot stand on these additional findings. We further hold that ineffective assistance of counsel may be grounds to excuse the requirement of 8 U.S.C. § 1326(d)(1) that a defendant charged with illegal reentry who brings a collateral challenge to the prior deportation order must have exhausted administrative remedies in the immigration proceeding.

For non-citizens at risk of deportation the consequences of inadequate counsel can be devastating.¹ Because such incompetence undermines the fair and effective administration of justice, courts must be ever vigilant. We cannot countenance the circumstance in which the failure of counsel to meet the most basic professional standards denies the alien a meaningful opportunity for judicial review. Cf. Padilla v. Kentucky, No. 08-651, 559 U.S. ___, ___, 130 S.Ct. 1473, 1480, ___ L.Ed.2d ___ (2010) ("The importance of accurate legal advice for noncitizens accused of crimes has never been more important.").

Accordingly, we vacate the judgment of the district court and remand for further proceedings consistent with this opinion.

BACKGROUND

Defendant-Appellant Jose Ricardo Cerna is a native of El Salvador who moved to the United States in 1983, at the age of ten, and became a lawful permanent resident of this country in 1989. In May 1990, at the age of sixteen, Cerna was convicted of two counts of criminal sale of a controlled substance, after selling drugs on two occasions to undercover officers. He was sentenced to two concurrent terms of one to three years' imprisonment. In May 1992, at the age of eighteen, he was found with a loaded firearm and was convicted of attempted criminal possession of a weapon in the third degree. He was sentenced to one and one-half to three years' imprisonment. In March 1995, at the age of twenty-one, after again selling a controlled substance to an undercover officer, he was convicted of criminal sale of a controlled substance in the fifth degree. He was sentenced to two to four years' imprisonment.

In October 1995, while Cerna was incarcerated, the United States Immigration and Naturalization Service ("INS") ordered him to appear for a hearing to determine whether he was subject to deportation. On April 12, 1996, Maria Liz, of the law firm of Liz & Botshon, entered a notice of appearance as Cerna's attorney. The deportation hearing was held on May 17, 1996, before an IJ at the Ulster Correctional Facility in Napanoch, New York. Cerna appeared in person, while his counsel, Andrew Friedman of Liz & Botshon, participated by telephone. At the hearing, the IJ found that Cerna's deportability had been established by clear and convincing evidence, but he also found that Cerna was eligible for relief from deportation in the form of a waiver of inadmissibility under former § 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed 1996).² Cerna's attorney asked for, and was granted, 45 days to file Cerna's application for § 212(c) relief, but he never filed the requisite documents.

Sixteen days after the agreed-upon filing deadline, the IJ issued a deportation order, dated July 17, 1996. The record contains a cover letter from the Immigration Court Clerk to Maria E. Liz of Liz & Botshon, with a "cc" to Cerna at the Mohawk Correctional Facility in Rome, New York, that apparently accompanied this order. The clerk's cover letter states,

Attached is a copy of the written decision of the Immigration Judge. This decision is final unless an appeal is taken to the Board of Immigration Appeals. The enclosed copies of FORM EOIR 26, Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or Representative, properly executed, must be filed with this office on or before 8/16/96. This appeal must be accompanied by proof of paid fee ($110.00).

App. for Def.-Appellant Jose Ricardo Cerna ("Cerna App.") 79. No appeal was ever taken, nor did Cerna or his counsel seek any other relief (such as filing a motion to reopen). On July 22, 1997, a little over a year after his deportation order was issued, Cerna was deported to El Salvador.

By December 13, 2000, Cerna had returned to the United States without the consent of the Attorney General or the Secretary of Homeland Security. On that date, he was arrested in the Bronx for criminal possession of a controlled substance, a charge to which he later pleaded guilty. He was sentenced to time served.

On July 30, 2004, Cerna was indicted in the Southern District of New York for unlawfully reentering the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). He was arrested on this charge on June 12, 2007. In August 2007, Cerna moved to dismiss the indictment on the ground that he had not been lawfully deported.

A collateral challenge to a prior deportation order in an unlawful reentry case is governed by 8 U.S.C. § 1326(d), which provides that

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.

Cerna conceded that he had not exhausted his administrative remedies in the prior deportation proceeding, but he argued that this failure should be excused because his lawyer's failure to file an application for § 212(c) relief, compounded by his failure to inform Cerna that he had not filed the application, amounted to ineffective assistance of counsel. He further argued that he was deprived of the opportunity for judicial review because of his counsel's ineffectiveness. Finally, he contended that the entry of the deportation order was fundamentally unfair because there was both a fundamental procedural error, in the form of his counsel's ineffective assistance, and resulting prejudice because, absent the error, there was a reasonable probability that he would have been granted relief under § 212(c).

In support of his motion to dismiss the indictment, Cerna submitted a declaration stating, inter alia, that (1) his family had hired the law firm of Liz & Botshon to help him avoid deportation; (2) he "had no reason to believe that Mr. Friedman would not file the appropriate § 212(c) papers, since he indicated at the hearing that he would do so;" (3) for 90 days before his deportation, he was in a holding facility without phone privileges and that during this period, his family attempted to contact his attorney but failed; (4) while he was incarcerated and awaiting deportation, he believed that his attorney was taking steps to prevent his deportation, and he "did not believe that there was anything else that I could do or needed to do to contest my deportation;" (5) "I did not learn that my attorney had failed to file the § 212(c) application until I was deported;" and (6) "I do not recall ever having received written notice of my right to appeal my deportation order." Cerna App. 32-33.

The district court denied Cerna's motion. It explicitly stated that it made no finding as to whether Cerna's counsel had been ineffective, but it found that even assuming that Cerna's counsel was "unacceptable," Cerna had knowingly and intelligently waived his right to any administrative remedies in light of the fact that he took no action to contest his deportation during the year that elapsed between the issuance of the deportation order and his deportation. United States v. Cerna, No. 04 Cr. 765, 2008 WL 216632, at *2 n. 2 (S.D.N.Y. Jan. 23, 2008). The district court further found that Cerna was not deprived of judicial review by his counsel's purported ineffectiveness because "he sat on his rights" — in other words, because he failed to exhaust his administrative remedies. Id. at *4. Finally, the district court found that the entry of the deportation order against Cerna was not fundamentally unfair because, again, Cerna had failed to exhaust his administrative remedies, and...