U.S. v. Calderon

Full title: UNITED STATES OF AMERICA, — against — VTTALIO CALDERON, Defendant

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

Date published: Jan 9, 2003

02 CR 0691 (JBW) (E.D.N.Y. Jan. 9, 2003)

Opinion

02 CR 0691 (JBW)

January 9, 2003

MEMORANDUM AND ORDER

JACK WEINSTEIN, Senior District Judge

I. Introduction

Defendant Vitalio Calderon was originally charged with attempted illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b)(2). He moved to dismiss the indictment under Federal Rule of Criminal Procedure 12(b)(2) and the Fifth Amendment. A Superseding Indictment was then entered, maintaining the attempted illegal re-entry charge in count one and charging Mr. Calderon in count two with possession of an identification document with the intent to defraud the United States in violation of 18 U.S.C. § 1028(a)(4) and (b). Counts 1 and 2 were severed, and decision was reserved on the motion to dismiss count 1. Mr. Calderon subsequently pled guilty to, and was sentenced on, count 2.

The motion to dismiss count 1 of the indictment is now granted for the reasons stated orally on the record and explained below. Mr. Calderon's prior deportation proceedings violated his due process rights by denying him the opportunity to apply for discretionary relief from deportation. Those proceedings cannot be relied upon to establish the prior deportation or removal necessary to sustain a charge of attempted illegal re-entry. See I.N.S. v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001); see also United States v. Figueroa-Taveras, 228 F. Supp.2d 428 (S.D.N.Y. 2002); United States v. Copeland, 228 F. Supp.2d 267 (E.D.N.Y. 2002); United States v. Perez, 213 F. Supp.2d 229 (E.D.N.Y. 2002).

II. Facts

Vitalio Calderon is a citizen of the Dominican Republic. In 1988, he came to the United States and applied for Lawful Permanent Resident status. He was granted that status in October 1990. Mr. Calderon had full custody of his now 11 year old son, a United States citizen. His wife is a lawful permanent resident.

In 1994, Mr. Calderon pleaded guilty to the possession of a controlled substance with intent to distribute, a 3rd degree crime under New Jersey law. He was sentenced to 3 years probation with the condition that he serve 180 days in jail. See Exhibit A to the Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Indictment ("Government's Memorandum"). In March of 1998, Mr. Calderon was convicted in a New Jersey Municipal Court of criminal mischief and assault by auto. See Exhibit B to Government's Memorandum.

In May of 2000, upon Mr. Calderon's return from a trip to the Dominican Republic, the Immigration and Naturalization Service ("INS") began removal proceedings based on the 1994 conviction. EMS charged that he was subject to removal pursuant to Immigration and Nationality Act ("INA") section 212(a)(2)(A)(i)(II) (inadmissability of alien convicted of violation of State law relating to a controlled substance) and INA section 2121(a)(2)(C) (immigration officer has reason to believe alien involved in illicit trafficking in a controlled substance).

Mr. Calderon was placed in INS custody. A hearing was afforded in May 2000. The Immigration Judge ordered Mr. Calderon removed, and advised him that he was ineligible for section 212(c) relief. See Affirmation of Antonio R. Espinosa, Esq., (Mr. Calderon's immigration attorney), Exhibit D to Memorandum of Law in Support of Defendant's Motion to Dismiss Indictment ("Defendant's Memorandum"); Order of the Immigration Judge, Exhibit E to Defendant's Memorandum (indicating that the defendant had been "advised of the limitation on discretionary relief); Order Denying Bond on basis of statutory ineligibility, Exhibit F to Defendant's Memorandum.

Former section 212(c) of the INA, 8 U.S.C. § 1182(c) ("212(c)"), provided for a hearing and potential waiver of deportation under specified circumstances. Under the then-current interpretation of changes to the INA created by the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, § 304(B) (Sept. 30, 1996) and the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), section 212(c) relief was not available to any alien whose removal proceedings commenced after those statutes took effect.

Parties have been unable to locate a tape or transcript of Mr. Calderon's hearing. He was represented at the time of his removal proceedings by attorney Antonio R. Espinosa. After the hearing, Mr. Espinosa advised Mr. Calderon that both the Immigration Judge and the BIA were bound to follow the law that made Mr. Calderon statutorily ineligible for section 212(c) relief from removal. He further advised him that his only remedy was to petition for a writ of habeas corpus in the Third Circuit, and that pursuing a habeas petition would be expensive and would take a lengthy amount of time, during which Mr. Calderon would have to remain in custody.

At the time of Mr. Calderon's removal proceedings in May of 2000, the position of the Third Circuit was that no right of direct judicial review in the federal courts of a removal order existed for an alien removable by reason of an enumerated criminal offense, including aggravated felonies and virtually any violation of a law relating to a controlled substance. See 8 U.S.C. § 1252(a)(2)(C); 8 U.S.C. § 1227(a)(2). While such an alien's right to petition the federal courts for a writ of habeas corpus was recognized, See, e.g., Liang v. I.N.S., 206 F.3d 308 (3rd Cir. 2000), the possibility of a waiver of deportation under INA section 212(c) had been found not to be available to aliens whose removal proceedings began subsequent to the effective date of IIRIRA even if the conviction on which the removal proceedings were predicated had occurred before the effective date of IIRIRA. See, e.g., Sandoval v. Reno, 166 F.3d 225 (3rd Cir. 1999); Then v. I.N.S., 58 F. Supp.2d 422 (D. N.J. 1999).

Although Mr. Calderon was informed of and reserved his right to appeal the Immigration Judge's order at the time of the hearing, he believed — reasonably — that he had no effective remedy. A letter dated June 6, 2000 from Mr. Espinosa stated that defendant accepted the order of the Immigration Judge as final and would not appeal from it.

Mr. Calderon was removed from the United States on July 5, 2000. On May 18, 2002, he attempted to re-enter the country through John F. Kennedy Airport. Mr. Calderon presented a Puerto Rican birth certificate with the name "Miguel Cedeno" at the airport, but he was identified as Vitalio Calderon through his fingerprints. Mr. Calderon was arrested at the airport and charged with attempted illegal re-entry after deportation for an aggravated felony conviction. 8 U.S.C. § 1326.

III. Law

A. Deportation and 212(c) Relief

Aliens convicted of aggravated felonies or of virtually any violation of a law dealing with a controlled substance, including Mr. Calderon's conviction for possession with intent to distribute, become deportable.See 8 U.S.C. § 1227(a)(2). Prior to the amendment of the INA in 1996, former section 212(c) allowed aliens meeting the statutory criteria to apply for a discretionary waiver of deportation. For further history of section 212(c), see INS v. St. Cyr, 533 U.S. 289, 294-97, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001).

An Immigration Judge, when considering whether to exercise discretion to grant a section 212(c) application, will "balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf" Matter of Marin, 16 I. N. Dec. 581, 584 (BIA 1978). Positive factors to be considered include family ties within the United States, length of residence in the United States, evidence of hardship to the alien and the alien's family in the event of deportation, employment history, property or business ties, evidence of good character, and likelihood of positive contributions to American society. Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995). Adverse factors that will impact on the Immigration Judge's decision are the nature and circumstances of the cause for deportation, additional immigration law violations, the existence, recency, seriousness, and nature of a criminal record, and other indications of an alien's bad character or undesirability as a permanent resident. Lovell 52 F.3d at 461 (citing Marin 16 I. N. Dec. at 584-85). More than 50% of 212(c) applications between 1989 and 1995 were approved. St. Cyr, 533 U.S. at 296 n. 5.

Section 440(d) of AEDPA deprived the Attorney General of discretion to grant relief 4 under section 212(c) to aliens convicted of a broad range of criminal offenses including aggravated felonies such as the one for which defendant was convicted. The effective date of AEDPA is April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214(1996). IIRIRA then repealed section 212(c) entirely, and replaced it with a provision giving the Attorney General discretion to cancel the removal of a narrowly defined groups of aliens not including those who had committed an aggravated felony. See 8 U.S.C. § 1229b(a). The permanent rules of IIRIRA took effect on April 1, 1997. St. Cyr, 533 U.S. at 315.

The Government took the position that section 212(c) relief was not available in any proceedings pending on or commenced after the effective date of the relevant statute, regardless of the date of the conviction of the crime that caused the alien to become deportable. See Office of Legal Counsel, United States Department of Justice, Authority of the Attorney General to Grant Discretionary Relief from Deportation under Section 212(c) of the Immigration and Nationality Act (Feb. 21, 1997) (modifying the position taken by the BIA in Matter of Soriano, 21 I. N. Dec. 516 (BIA 1996), that the bar to section 212(c) relief applied only to applications filed after the date of enactment of the amendments); See also St. Cyr, 533 U.S. at 297. In St. Cyr. the Supreme Court held that "§ 212(c) relief remains available for aliens . . . whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for 212(c) relief at the time of their plea under the law then in effect." 533 U.S. at 326. If an alien entered a plea of guilty before April 1, 1997 and that alien meets the other eligibility requirements of 212(c) in effect when the plea was taken, he or she is entitled to a section 212(c) hearing in removal proceedings regardless of when those proceedings are commenced.

B. Illegal Reentry

Section 1326(a) of Title 8 of the United States Code makes it a crime for a deported or removed alien to enter, attempt to enter, or be found in the United States without the express consent of the Attorney General. Since a prior deportation order is an element of this criminal offense, a defendant charged under section 1326(a) may collaterally attack the validity of a prior deportation order and proceedings. United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); See also United States v. Gonzalez-Rogue, 301 F.3d 39, 45 (2d Cir. 2002). Deportation proceedings are not valid and cannot be used to establish prior deportation for purposes of a criminal prosecution for illegal reentry if they failed to afford an alien due process of law. See, e.g., Mendoza-Lopez, 481 U.S. at 837-39;United States v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002).

C. Collateral Challenge to Prior Deportation Order

A deportation order can be collaterally challenged if:

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.

8 U.S.C. § 1326(d). This statute codified the Supreme Court's holding in Mendoza-Lopez, 481 U.S. at 837-39, limiting the use of deportation proceedings to prove a charge of illegal re-entry. See also Copeland, 228 F. Supp.2d 267. To some extent all three elements of 1326(d) overlap.

1. Exhaustion

Exhaustion of administrative remedies generally requires an alien to appeal the order of an Immigration Judge to the Board of Immigration Appeals. See Theodoropoulos v. INS, ___ F.3d ___, 2002 WL 31831518, at *3 (2d Cir. 2002). Exhaustion is not required when: "(1) available remedies provide no genuine opportunity for adequate relief; (2) irreparable injury may occur without immediate judicial relief; (3) administrative appeal would be futile; and (4) in certain instances a plaintiff has raised a substantial constitutional question." Able v. United States, 88 F.3d 1280, 1288 (2d Cir. 1996) (internal quotations and citations omitted), cited in Theodoropoulos, 2002 WL 31831518, at *4.

Administrative appeal is futile if the body being appealed to lacks the power or believes that it lacks the power to resolve the matter in the applicant's favor. Sousousa v. INS, 226 F.3d 28, 32 (1st Cir. 2000); Copeland, 228 F. Supp.2d at 271. At the time of Mr. Calderon's hearing before the Immigration Judge, the Board of Immigration Appeals ("BIA") took the position that section 212(c) relief had been eliminated in all cases involving aggravated felons, See, e.g., In re Phat Dinh Truong, 22 I. N. Dec. 1090 (BIA 1999), and that there was no right to direct judicial review of BIA decisions. See 8 U.S.C. § 1252(a)(2)(C); 8 U.S.C. § 1227(a)(2).

In Theodoropoulos the court held that an alien who had not appealed his order of deportation to the BIA had not presented a substantial constitutional question and therefore could not avoid administrative exhaustion requirements on those grounds. Theodoropoulos, 2002 WL 318315518, at *7. Mr. Theodoropoulos had been convicted after a jury trial of several drug-related crimes before the enactment of AEDPA and IERIRA and found removable and statutorily ineligible for relief on the basis of those convictions. Id. at *1-2. The court concluded that St. Cyr should not be extended to aliens convicted after a trial and that therefore Mr. Theodoropoulos's case presented no substantial constitutional consideration. Id. at *7. This decision does not control the present case — where guilt was established by plea rather than by trial — on the issue of exhaustion.

2. Deprivation of Opportunity for Judicial Review

Deprivation of the opportunity for judicial review lies at the heart of this collateral review inquiry. In Mendoza-Lopez, the Supreme Court held that "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." 481 U.S. at 837-38 (emphasis in original). Due process is violated when an alien is "effectively deprived" of the right to a direct appeal. United States v. Paredes-Batista, 140 F.3d 367, 376 (2d Cir. 1998); Perez, 213 F. Supp.2d at 232. In Perez, the court listed situations in which such a deprivation had been found to occur:

an unconsidered and unintelligent waiver of appeal, Mendoza-Lopez, 481 U.S. at 840, 107 S.Ct. 2148; failure to advise of the availability of discretionary relief, United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000); United States v. Aguirre-Tello, 181 F. Supp.2d 1298, 1303-1304 (D. N.M. 2002); inadequate explanation of a section 212(c) hearing and such a hearing's accompanying rights, United States v. Sanchez-Peralta, 1998 WL 63405, at *5 (S.D.N.Y. Feb. 13, 1998); and failure to inform the alien of the time and date of a hearing, United States v. Montano-Betancourt, 151 F. Supp.2d 794, 796-97 (W.D.Tex. 2001) Deprivation of judicial review can also be established by demonstrating ineffective assistance of counsel.

213 F. Supp.2d at 232-33.

Waivers of the right to appeal are only effective if they are "the intentional relinquishment or abandonment of a known right or privilege with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Figueroa-Taveras, 228 F. Supp.2d at 432 (internal quotations and citations omitted); See also United States v. Fares, 978 F.2d 52, 56-57 (2d Cir. 1992). Waivers are not fully informed if the immigration judge and counsel fail to inform the alien of his right to discretionary relief. See United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). ("an alien who is not made aware that he has a right to seek relief necessarily has no meaningful opportunity to appeal the fact that he was not advised of that right.");United States v. Aguirre-Tello, 181 F. Supp.2d 1298, 1303-1304 (D. N.M. 2002) (same).

While there is a strong policy in favor of finality, that policy does not override an individual's right to due process in a proceeding whose outcome is being asserted as an element of a criminal offense.

3. Fundamental Unfairness of Entry of Deportation Order

An alien attempting to demonstrate on collateral review "that his hearing was so fundamentally unfair that it constituted a denial of his Fifth Amendment right to due process . . . must show both a fundamental procedural error and prejudice resulting from that error."Fernandez-Antonia, 278 F.3d at 159. As already noted, misinforming an alien as to the 4 availability of discretionary relief is a procedural error so fundamental that it functionally deprives an alien of judicial review. See section III.C.2, supra. In order to show prejudice, an alien "must show that, absent the procedural errors, he would not have been removed." Fernandez-Antonia, 278 F.3d at 159.

The court of appeals for the Second Circuit has not yet stated the standard of proof necessary for an alien to demonstrate prejudice. See Fernandez-Antonia, 278 F.3d at 159-60. Two formulations are commonly employed by the courts: (1) a "reasonable likelihood" that the alien would not have been deported, See, e.g., United States v. Sanchez-Peralta, 1998 WL 63405, at *12 (S.D.N.Y. 1998) (internal citations omitted), and (2) a "plausible" showing that the alien would not have been deported, See, e.g., United States v. Jimenez-Marmolejo, 104 F.3d 1083, 1086 (9th Cir. 1996). As a practical matter, the alien must make "some showing" that the result might have been different absent the procedural error. See Fernandez-Antonia, 278 F.3d at 157-58, Perez, 213 F. Supp.2d at 254.

IV. Application of Law to Facts

Defendant's prior deportation order was not valid. Mr. Calderon has met the elements required by section 1326(d) of Title 8 of the United States Code to mount a successful collateral challenge to a prior deportation proceeding. He should be deemed to have exhausted his administrative remedies, and in fact exhaustion is not contested in this case. Appeal of the order of the Immigration Judge to the BIA would have been futile. The firm position of the BIA at the time was that aliens in Mr. Calderon's position were not entitled to the relief he sought, a hearing under INA section 212(c), and direct judicial review was not available from an order of the BIA.

Mr. Calderon's deportation proceedings violated his right to due process by depriving him of a meaningful opportunity for review. Not only were section 212(c) and its accompanying rights not explained, Mr. Calderon was told, in error, by both the Immigration Judge and his attorney that he was not entitled to any discretionary relief. As St. Cyr made clear, aliens in Mr. Calderon's position, removable as a result of guilty pleas entered into at a time when discretionary relief under INA section 212(c) would have been available to them, are entitled to a 212(c) hearing even when removal proceedings are commenced after the effective date of IIRIRA and the repeal of provisions granting 212(c) relief.

The court of appeals for the Second Circuit has suggested in dicta that an alien is not deprived of judicial review by IIRIRA's elimination of direct judicial review for aliens convicted of aggravated felonies where habeas review remains available. See Gonzalez-Rogue, 301 F.3d 39, 49-50.But see St. Cyr., 533 U.S. at 311-14 ("habeas corpus" and "judicial review" are not synonymous but have district and different meanings, with the scope of inquiry in habeas proceedings much narrower than that during judicial review). Mr. Calderon is not asserting that his due process rights were violated by IIRIRA's preclusion of direct appeals, but rather that his failure to appeal was misinformed and unintelligent, Mendoza-Lopez, 481 U.S. at 840;Figueroa-Taveras, 228 F. Supp.2d 428, because he was erroneously informed that he was ineligible for discretionary relief and specifically for a 212(c) hearing. Arrieta, 224 F.3d at 1079; Copeland, 228 F. Supp.2d 267;Aguirre-Tello, 181 F. Supp.2d at 1303-1304. As Mr. Calderon was informed by his attorney, the law in the Third Circuit at the time was that aliens whose removal proceedings began after IIRIRA took effect were statutorily ineligible for section 212(c) relief; meaningful relief would not have been available to Mr. Calderon even had he filed a habeas petition. See Section II, supra; Sandoval 166 F.3d 225; Then, 58 F. Supp.2d 422.

The entry of the deportation order against Mr. Calderon was fundamentally unfair. Had he been accurately informed of his right to apply for a discretionary waiver of deportation under section 212(c), he would probably have appealed. Although 212(c) on its face applied only to aliens seeking to reenter the United States, it had been interpreted to apply to aliens facing deportation as well. See Francis v. INS, 532 F.2d 268, 273 (2d Cir. 1976). Mr. Calderon was a lawful permanent resident and had accumulated more than seven years of unrelinquished domicile in the United States before his order of deportation became final in 2000. See Vargas v. INS. 938 F.2d 358, 361 (2d Cir. 1991) (for purposes of 212(c) relief lawful domicile ends with concession of deportability); Matter of Lok, 18 I. N. Dec. 101, 105 (BIA 1981),aff'd, Lok v. INS, 681 F.2d 107 (2d Cir. 1982).

Mr. Calderon can make a plausible showing that had he been granted a section 212(c) hearing, he would not have been deported. He has strong ties to the United States. He lived in the United States legally for approximately ten years. His wife is a long-time lawful permanent resident. He had full custody of his son, a United States citizen. His criminal history is comparatively less serious, arid he does not appear to have a history of immigration law violations. Arguably, he was, on the whole, a productive member of the United States community.

V. Conclusion

Because the deportation order violated Mr. Calderon's due process rights, it cannot be relied upon to establish the prior deportation or removal needed to sustain a charge of illegal reentry. 8 U.S.C. § 1326. Count 1 of the indictment is dismissed.

ORDERED.