The People, Respondent,v.Andre Harrison, Appellant.BriefN.Y.March 29, 2016 Court of Appeals State of New York ______________________________________________________________________________ PEOPLE OF THE STATE OF NEW YORK, Respondent, against - APL-2015-00014 ANDRE HARRISON, Defendant-Appellant. PEOPLE OF THE STATE OF NEW YORK, Respondent, against - APL-2015-00074 MARINO SERRANO, Defendant-Appellant. BRIEF OF AMICUS CURIAE IMMIGRANT DEFENSE PROJECT IN SUPPORT OF DEFENDANT-APPELLANTS Ryan Muennich, Esq. Immigrant Defense Project 40 West 39th Street, Fifth Floor New York, New York 10018 Telephone: (646) 358-4285 Attorney for Amicus Curiae Immigrant Defense Project, in Support of Defendant-Appellants Harrison and Serrano i CORPORATE DISCLOSURE STATEMENTS Pursuant to 22 NYCRR Part 500.1(f), amicus Immigrant Defense Project (IDP) states that it is a nonprofit organization whose parent corporation is the Fund for the City of New York, a nonprofit corporation operating under section 501(c)(3) of the Internal Revenue Code. IDP has no other affiliates, subsidiaries or parents. ii TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................ iii PRELIMINARY STATEMENT ............................................................................ 1 INTEREST OF AMICUS CURIAE ........................................................................ 1 SUMMARY OF ARGUMENT ............................................................................... 2 ARGUMENT ............................................................................................................ 3 I. Whether a conviction affected an involuntarily removed defendant’s deportation or reentry is outside the expertise of State appellate courts. ...... 3 1. The effect of criminal convictions on deportation proceedings is a complex legal inquiry. ....................................................................................... 7 2. In practice, deported defendants do submit to re-prosecution in the U.S. ..................................................................................................................15 CONCLUSION .......................................................................................................22 iii TABLE OF AUTHORITIES Cases Arizona v. United States, 132 S. Ct. 2492 (2012) ...................................................... 5 Baltazar-Alcazar v. INS, 386 F.3d 940 (9th Cir. 2004) ............................................. 5 Brown v. Ashcroft, 360 F.3d 346 (2d Cir. 2004) .....................................................13 Cardoso-Tlaseca v. Gonzalez, 460 F.3d 1102 (9th Cir. 2006) ......................... 18, 19 Drax v. Reno, 338 F.3d 98 (2d Cir. 2003) ................................................................. 4 Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981) ............................................22 Florez v. Holder, 779 F.3d 207 (2d Cir. 2015) .......................................................... 6 Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011) ......................................................10 Gomez-Beleno v. Holder, 644 F.3d 139 (2d Cir. 2011) ............................................. 6 Husic v. Holder, 776 F.3d 59, 67 (2d Cir. 2015) .....................................................11 Ibarra v. Holder, 736 F.3d 903 (10th Cir.2013) ........................................................ 6 In re Ayman Salama, 2010 WL 5559194 (BIA Dec. 17, 2010) ..............................19 In re Vakhtang Pruidze, No. A77-434-982 (BIA Sept. 22, 2011) ...........................20 Leocal v. Ashcroft, 543 U.S. 1 (2004) ....................................................................... 7 Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) .................................................10 Matter of Accardi, 14 I.&N. Dec. 367 (BIA 1973) .................................................16 Matter of Alyazji, 25 I.&N. Dec. 397 (BIA 2011) ...................................................11 Matter of C-V-T-, 22 I.&N. Dec. 7 (BIA 1998) ......................................................... 9 iv Matter of N-A-M-, 24 I.&N. Dec. 336 (BIA 2007) ..................................................11 Matter of Polanco, 20 I&N Dec. 894 (BIA 1994) ...................................................15 Matter of Rodriguez-Ruiz, 22 I.&N. Dec. 1378 (BIA 2000) ...................................16 Matter of Y-L-, 23 I.&N. Dec. 270 (A.G. 2002) ........................................................ 9 Mellouli v. Lynch, 135 S. Ct. 1980 (2015) ................................................................. 7 Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) .........................................................10 Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) ...................................18 Padilla v. Kentucky, 130 S. Ct. 1473 (2010) .................................................... 3, 4, 5 People v. Bonilla, 41 Misc. 3d 894 (Sup. Ct., Queens Co. 2013) ...........................15 People v. Philogene, 45 Misc. 3d 1220(A) (Sup. Ct., N.Y. Co. 2014) ..................15 People v. Reid, 34 Misc. 3d 1234A (Crim. Ct., Queens Co. 2012) .........................15 People v. Ventura, 17 N.Y.3d 675 (2011) ...........................................................4, 13 People v. Williams, 2012 N.Y. Slip Op. 32281(U) (Sup. Ct., N.Y. Co. 2012) .......15 People v. Worklis, 2011 WL 7402818 (Sup. Ct., Kings Co. 2011) .........................15 Plyler v. Doe, 457 U.S. 202 (1982)............................................................................ 5 Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) .............................................. 20, 21 Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011) ..........................................21 Torres v. Holder, 764 F.3d 152 (2d Cir. 2014) cert. granted sub nom. Torres v. Lynch, 135 S. Ct. 2918 (2015) ................................................................................ 7 United States v. Pacheco, 225 F.3d 148 (2d Cir. 2000) ..........................................10 v Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990) ................................................22 Statutes 28 U.S.C. § 1821 ......................................................................................................16 8 U.S.C. § 1101(a)(13) .............................................................................................10 8 U.S.C. § 1101(a)(43) ............................................................................................... 9 8 U.S.C. § 1158(a) ..................................................................................................... 8 8 U.S.C. § 1158(b)(2)(B)(i) .................................................................................8, 11 8 U.S.C. § 1182(a)(2)(A) ........................................................................................... 7 8 U.S.C. § 1182(a)(2)(A)(i) .....................................................................................21 8 U.S.C. § 1182(a)(2)(A)(i)(II) ................................................................................13 8 U.S.C. § 1182(a)(6)(A)(i) .................................................................................7, 14 8 U.S.C. § 1182(a)(7) ................................................................................................. 7 8 U.S.C. § 1182(a)(9)(A)(ii) ....................................................................................17 8 U.S.C. § 1182(d)(5)........................................................................................ 16, 17 8 U.S.C. § 1182(h)(2)...........................................................................................9, 10 8 U.S.C. § 1227(a)(1)(B) ........................................................................................... 7 8 U.S.C. § 1227(a)(2) ................................................................................................. 7 8 U.S.C. § 1227(a)(2)(A)(i) .....................................................................................21 8 U.S.C. § 1227(a)(2)(A)(ii) ....................................................................................21 8 U.S.C. § 1227(a)(2)(iii) .........................................................................................11 vi 8 U.S.C. § 1229(a)(1) ...............................................................................................12 8 U.S.C. § 1229b(a)(1),(2) ......................................................................................... 8 8 U.S.C. § 1229b(a)(3) ............................................................................................... 8 8 U.S.C. § 1229b(b)(1)(C) ......................................................................................... 8 8 U.S.C. § 1229b(d) ................................................................................................... 8 8 U.S.C. § 1231(b)(3)(B) .........................................................................................11 8 U.S.C. § 1255(a) ...................................................................................................14 N.Y. Crim. Proc. L. § 220.50(1) ..............................................................................19 N.Y. Crim. Proc. L. § 440 ........................................................................................16 Other Authorities S. Rep. No. 1137, 82d Cong., 2d sess. 12-13 ..........................................................16 U.S. Immigration and Customs Enforcement, “Tool Kit for Prosecutors,” available at https://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-for-prosecutors.pdf (last accessed February 8, 2016) ..........................................................................17 Regulations 8 C.F.R. § 1003.1(e)(4) ............................................................................................12 8 C.F.R. § 1003.30 ...................................................................................................13 8 C.F.R. § 1003.5(a) .................................................................................................12 8 C.F.R. § 1240.48(b) ..............................................................................................13 8 C.F.R. § 1240.50(a) ........................................................................................ 12, 13 vii 8 C.F.R. § 212.5(d) ..................................................................................................17 8 C.F.R. § 212.7(d) .................................................................................................... 9 8 C.F.R. § 245.1(b)(3) ..............................................................................................14 1 PRELIMINARY STATEMENT Amicus curiae Immigrant Defense Project is a nonprofit organization devoted to the defense of the rights of noncitizens who have been accused or convicted of crimes. Amicus respectfully offers this brief in support of Defendant- Appellants Harrison and Serrano (“Defendant-Appellants”) to apprise the Court of relevant provisions of immigration law and federal immigration enforcement that bear on this Court’s consideration of these appeals. INTEREST OF AMICUS CURIAE Amicus the Immigrant Defense Project (IDP) is a not-for-profit legal resource and training center dedicated to defending the legal, constitutional and human rights of immigrants. A nationally recognized expert on the intersection of criminal and immigration law, IDP supports, trains, and advises both criminal defense and immigration lawyers, as well as immigrants themselves, on issues that involve the intersection of immigration and criminal law. Since 1997, IDP, with its former parent organization the New York State Defenders Association, has produced and maintained the only legal treatise for New York defense counsel representing immigrant defendants. See Manuel D. Vargas, Representing Immigrant Defendants in New York (5th ed. 2011). IDP seeks to improve the quality of justice for immigrants accused or convicted of crimes and therefore has a keen interest in ensuring that immigration law is correctly interpreted to give 2 noncitizen defendants the benefit of their constitutional right to due process in state criminal proceedings. Numerous courts, including this Court, have accepted and relied on amicus curiae briefs prepared and submitted by IDP (on its own or by its former parent, NYSDA) in many of the key cases involving the intersection of immigration and criminal laws. See, e.g., Brief of Amici Curiae IDP et al. Supporting Petitioner in People v. Baret, 23 N.Y.3d 777 (2014); Brief of Amicus Curiae IDP Supporting Petitioner in People v. Peque, 22 N.Y.3d 168 (2013) (cited in Peque, 22 N.Y.3d at 23, 25 n.4); Brief of Amici Curiae IDP et al. Supporting Defendant-Appellants in People v. Ventura, 17 N.Y.3d 675 (2011); Brief of Amici Curiae IDP et al. in support of Petitioner in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010); Brief of Amici Curiae IDP et al. in support of Petitioner in Padilla v. Kentucky, 130 S. Ct. 1473 (2010); Brief of Amici Curiae IDP et al. in support of Petitioner in Nijhawan v. Holder, 129 S. Ct. 2294 (2009); Brief of Amici Curiae NYSDA Immigrant Defense Project, et al. in support of Respondent, cited in INS v. St. Cyr, 533 U.S. 289, 323 n.50 (2001). SUMMARY OF ARGUMENT Because changes in immigration law in the last two decades have “dramatically raised the stakes of a noncitizen’s criminal conviction,” Padilla v. 3 Kentucky, 130 S. Ct. 1473, 1480 (2010), appellate review of convictions is at least as important to noncitizen defendants as to citizens. Respondents argue that Ventura, which precludes intermediate appellate courts from dismissing appeals of involuntarily deported defendants because they were deported, does not apply when the conviction was not the cause of the non- citizen’s removal, and the defendant was unable to reenter the United States because he or she was deported. Making state courts responsible for determining these inquiries is ill-advised for two principal reasons. First, appellate courts would have to make highly complex legal and factual determinations about immigration proceedings based on materials outside the appellate record in an area of law long recognized as complex. Second, deported defendants can, and do, re- enter the United States through “parole” under the immigration law to face re- prosecution. This Court should affirm that the holding in Ventura applies to all non- citizen defendants, without trying to determine whether the conviction played a role in the defendant’s involuntary removal or prevents or complicates the non- citizen’s return. ARGUMENT I. Whether a conviction affected an involuntarily removed defendant’s deportation or reentry is outside the expertise of State appellate courts. 4 New York State courts are ill-equipped to determine whether non-citizen defendants’ criminal convictions affect their deportation proceedings, or prevent or complicate their reentry to the United States to face prosecution.1 The People argue in Serrano that because “defendant’s deportation was unrelated to his conviction” and had no “deportation ramifications,” dismissal was appropriate. Serrano Resp. Br. at 19-20. This standard naturally requires the appellate court to determine whether the conviction was “unrelated” to the defendant’s removal. Likewise, the People argue in Harrison that the defendant’s conviction prevents or at least complicates his ability to reenter to face prosecution, making dismissal appropriate. Harrison Resp. Br. at 9, 29-30. This standard requires the appellate court to determine whether the conviction would prevent or complicate the defendant’s reentry. Asking the court to apply these standards is more complex than the People recognize. Federal courts, charged with interpreting and applying immigration law, have recognized this complexity intrinsic to immigration law. Padilla, 559 U.S. at 369 (“Immigration law can be complex, and it is a legal specialty of its own”); Drax v. Reno, 338 F.3d 98, 99-100 (2d Cir. 2003) (noting the “labyrinthine” immigration system is “a maze of hyper-technical statutes and regulations that 1 The dissent in Ventura distinguished the majority’s decision by urging this standard, which it applied and concurred in the case of appellant Gardner but dissented for appellant Ventura. People v. Ventura, 17 N.Y.3d 675, 685 (2011) (Read, J., dissenting in Ventura and concurring in Gardner). 5 engender waste, delay, and confusion”); Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (stating that immigration laws are ranked only second to the Internal Revenue Code in terms of complexity). To properly determine the effect of a criminal conviction, New York State courts must consider “significant variations among Circuit interpretations of federal immigration statutes; the frequency with which immigration law changes; different rules governing the immigration consequences of juvenile, first-offender, and foreign convictions; and the relationship between the length and type of sentence and the determination whether an alien is subject to removal, eligible for relief from removal, or qualified to become a naturalized citizen.” Padilla, 559 U.S. at 380 (Alito, J., concurring in the judgment) (internal quotations omitted). In another context, the Justice Blackmun recognized that “the structure of the immigration statutes makes it impossible for the State to determine which aliens are entitled to residence, and which eventually will be deported.” Plyler v. Doe, 457 U.S. 202, 236 (1982) (Blackmun, J., concurring). The interplay between State criminal convictions and federal immigration law is especially complex. See, e.g., Arizona v. United States, 132 S. Ct. 2492, 2506 (2012) (“There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable.”). For example, courts come to opposite conclusions about deportability statutes. 6 Compare Florez v. Holder, 779 F.3d 207, 211 (2d Cir. 2015) (“crime of child abuse” includes N.Y.P.L. 260.10, which allows negligent mens rea and no injury) with Ibarra v. Holder, 736 F.3d 903, 910 (10th Cir.2013) (“crime of child abuse” does not include negligent mens rea with no injury). Federal courts determining whether a conviction causes deportation, or prevents or complicates a non-citizen’s return, also have the benefit of considering the full administrative record. See, e.g., Gomez-Beleno v. Holder, 644 F.3d 139, 143 (2d Cir. 2011) (the court independently discovered the agency’s “mischaracterization of the [administrative] record,” mandating reversal and remand). Immigration cases in the federal courts also have counsel for both parties specializing in immigration law.2 State courts attempting to determine the interplay between criminal convictions and immigration law do so without these benefits. Determining whether the defendant would have been deported without the conviction, or whether the defendant’s reentry is prevented by the conviction, is outside the scope of State appellate courts, and amicus urges that this Court remove these considerations from the ambit of involuntarily deported defendants’ appeals. 2 The U.S. Department of Justice, Office of Immigration Litigation represents the federal government in federal court on immigration-related issues, or through special prosecutors assigned to work directly with U.S. Attorney offices. 7 1. The effect of criminal convictions on deportation proceedings is a complex legal inquiry. State criminal convictions affect deportation proceedings in numerous ways. Broad categories of conviction can trigger deportability. See 8 U.S.C. §§ 1182(a)(2)(A); 1227(a)(2) (premising deportability on, inter alia, “crimes involving moral turpitude,” offenses relating to Federally-controlled substances, “aggravated felonies,” domestic violence offenses, crimes of child abuse or neglect, and firearms offenses). Grounds of deportability are continuously litigated. See, e.g., Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (addressing paraphernalia possession offenses in the context of controlled substance offenses); Torres v. Holder, 764 F.3d 152 (2d Cir. 2014) cert. granted sub nom. Torres v. Lynch, 135 S. Ct. 2918 (2015) (deciding whether a federal jurisdictional element is necessarily “defined in” federal statutes identified as aggravated felonies); Leocal v. Ashcroft, 543 U.S. 1, 6 (2004) (the court held that DUI statutes are not “crimes of violence” removal offenses, settling a circuit split). Additional deportation grounds can be alleged depending on the non-citizen’s method of entry, current status, or lack of documentation. See, e.g., 8 U.S.C. §§ 1182(a)(6)(A)(i) (presence in the United States without having been lawfully admitted or paroled); 1227(a)(1)(B) (present in violation of law following lawful admission, including continued presence after the expiration of an authorized period of stay); 1182(a)(7) 8 (not in possession of, inter alia, valid passport, visa, or travel document). Determining whether a non-citizen is removable is frequently contested. If the immigration court finds that a noncitizen is deportable, it then considers whether the non-citizen qualifies for “relief from removal.” Eligibility for most of these forms of relief is restricted based on a wide range of factors and ultimately designated to the Executive’s discretion by Congress. See, e.g., 8 U.S.C. §§ 1158(a) (“asylum” available only to respondents who have applied within one year of entry to the United States, subject to enumerated exceptions); 1229b(a)(1),(2) (“cancellation of removal” available only to lawful residents who have held that status for five years and who have continuously resided in the United states for seven years pursuant to a lawful admission). Certain convictions may automatically bar respondents who otherwise meet these criteria from seeking forms of relief. See, e.g., 8 U.S.C. §§ 1158(b)(2)(B)(i) (bar to asylum upon conviction of “aggravated felony”); 1229b(a)(3) (same for cancellation of removal for permanent residents); 1229b(d) (commission of criminal conduct leading to certain categories of conviction stops the required accrual of seven years of continuous residence for purposes of cancellation of removal for permanent residents); 1229b(b)(1)(C) (bar to cancellation of removal for non-permanent residents who have been convicted of any criminal conduct triggering removability). 9 Even where a conviction does not serve as a per se bar to applying for relief under the statute, it may have a strong or even conclusive effect on the immigration court’s exercise of discretion in deciding whether to grant that relief under governing agency precedent or regulations. See, e.g., Matter of C-V-T-, 22 I.&N. Dec. 7, 11 (BIA 1998) (describing the factors immigration judges must consider in deciding whether to grant relief from removal, including “the existence of a criminal record and, if so, its nature, recency, and seriousness”); Matter of Y-L-, 23 I.&N. Dec. 270 (A.G. 2002) (making “drug trafficking offenses” a presumptive bar to “withholding of removal,” a form of asylum offered to non-citizens who are more likely than not subject to persecution in their home country), overruled on other grounds, Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004); 8 C.F.R. § 212.7(d) (holding that “[t]he Attorney General, in general, will not favorably exercise discretion [to grant a criminal conviction waiver] under . . . 8 U.S.C. § 1182(h)(2) . . . in cases involving violent or dangerous crimes, except in extraordinary circumstances” but that “ a showing of extraordinary circumstances might still be insufficient to warrant a favorable exercise of discretion”). Each of these issues requires detailed analysis. For example, the “aggravated felony” ground of removal consists of twenty-one separately defined categories of offense conduct. 8 U.S.C. § 1101(a)(43). A given state’s designation of an offense as a “felony” or “misdemeanor” is irrelevant to the inquiry of 10 whether it is an “aggravated felony” under immigration law. United States v. Pacheco, 225 F.3d 148, 149 (2d Cir. 2000). The federal circuits have frequently diverged in their interpretation of whether a given state offense constitutes an aggravated felony and even on how this determination is made. Compare, e.g., Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) (criminal sale of marijuana under N.Y. Penal Law § 221.40 conclusively presumed not to be a “drug trafficking” aggravated felony because it may punish noncommercial transfer, regardless of actual conduct), with Garcia v. Holder, 638 F.3d 511 (6th Cir. 2011) (similar offense presumed to be an aggravated felony unless the immigrant can affirmatively prove such noncommercial transfer), overruled by Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013). Moreover, even when Circuit precedent clearly covers a conviction, it is impossible to determine what role the conviction played in the non-citizen’s removal without an accurate understanding of his or her immigration status, personal history, and potential claims to relief from removal. For instance, an aggravated felony conviction bars discretionary waivers of inadmissibility under 8 U.S.C. § 1182(h)(2) for lawful permanent residents who were convicted after “admi[ssion] for permanent residence” to the United States. “Admission” is a legal term of art with its own complex definition, see 8 U.S.C. § 1101(a)(13), and determining whether an aggravated felony conviction barred a given immigrant’s 11 eligibility for this waiver may require knowing how the immigrant originally entered, how she or he obtained lawful residence and whether that process is considered an “admission” under the law of the relevant jurisdiction. Husic v. Holder, 776 F.3d 59, 67 (2d Cir. 2015); cf. Matter of Alyazji, 25 I.&N. Dec. 397 (BIA 2011) (discussing and departing from the agency’s own past precedent regarding what constitutes an “admission” for permanent residence in a related context). Further, because the aggravated felony removal ground applies only to respondents convicted of aggravated felonies “at any time after admission,” 8 U.S.C. § 1227(a)(2)(iii), a defendant who has not been “admitted” would not be deported “because of” an aggravated felony conviction, in the sense that he or she would not have been susceptible to a charge of removability for conviction of an aggravated felony “after admission.” But such an individual may have sought a form of relief for which an aggravated felony conviction served as either an automatic or a discretionary bar. Compare, e.g., 8 U.S.C. § 1158(b)(2)(B)(i) (aggravated felony conviction bars grant of asylum) with § 1231(b)(3)(B) (aggravated felony conviction bars withholding of removal, a related form of relief, only when it has been determined to be a “particularly serious crime”); Matter of N-A-M-, 24 I.&N. Dec. 336, 342 (BIA 2007) (explaining that the determination of whether an offense is “particularly serious” so as to bar withholding of removal 12 turns on “a variety of factors” including “the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction”). In addition, a rule that requires litigants to obtain and introduce evidence of the cause of the defendant’s deportation—likely resulting in disputed issues of fact requiring resolution—imposes a significant and unwelcome burden on appellate courts whose review is generally confined to the state court record below. This is especially true in the immigration context because the agency’s records are frequently insufficient to determine with certainty why a defendant was removed. Immigration judges need not issue written opinions. 8 C.F.R. § 1240.50(a). While oral remarks of the Immigration Judge are recorded on tape, they are not transcribed unless a party appeals the decision to the Board of Immigration Appeals (in which case they are of limited relevance because they no longer represent the agency’s final view). 8 C.F.R. § 1003.5(a). A large number of appeals to the BIA similarly do not result in detailed opinions setting forth the basis for removal. See 8 C.F.R. § 1003.1(e)(4) (requiring Board members to affirm decisions of the immigration judge “without opinion” in various circumstances). Immigration prosecutors are required to lodge a charging document, known as a Notice to Appear, listing the asserted grounds for commencing a removal proceeding. 8 U.S.C. § 1229(a)(1) (listing requirements for a Notice to Appear). See Serrano App. at A-18. But these documents can be amended throughout the 13 proceedings and in any event do not necessarily indicate on their face whether the Immigration Judge sustained any given charge or set of charges as a basis for removal, any more than a criminal complaint or information establishes the offenses of which defendants are ultimately convicted. 8 C.F.R. § 1003.30 (allowing additional charges of deportability to be brought “at any time”); 8 C.F.R. §§ 1240.48(b), 1240.50(a) (requiring the Immigration Judge to make a decision as to each asserted ground of removal, but not requiring formal enumeration of findings). Nor does the Notice to Appear shed any light on whether a given conviction served as an automatic bar to relief for which the immigrant was otherwise eligible. A conviction may be found to bar relief as an “aggravated felony” or otherwise even though the government lodged no such charge on the Notice to Appear. See Brown v. Ashcroft, 360 F.3d 346 (2d Cir. 2004). Suppose that a non-citizen entered the United States without inspection, married a U.S. citizen, and was subsequently wrongfully convicted of possession of a Federally-controlled substance in New York.3 Convictions for possession of a controlled substance operate as unwaivable bars to permanent lawful admission. 8 U.S.C. § 1182(a)(2)(A)(i)(II) (conviction of an offense relating to a controlled 3 The appellant in People v. Gardner was convicted of criminal possession of a controlled substance in the seventh degree, which prevented the appellant from applying for relief from removal and acted as an absolute bar to his reentry into the United States. Ventura, 17 N.Y.3d at 685 (Read, J., dissenting in Ventura and concurring in Gardner). 14 substance; a limited waiver applies to a single offense involving simple possession of under 30 grams of marijuana). If this defendant were placed in removal proceedings during the pendency of his appeal, the drug conviction would not serve as the sole cause of his removal, because his lack of valid status is itself a sufficient cause for removal. 8 U.S.C. § 1182(a)(6)(A)(i). Nor would the conviction cause his removal—although it operates as a bar to obtaining lawful permanent resident status through his spouse, he is already independently ineligible for such relief in the context of his deportation case because he does not meet the eligibility requirement of having been previously lawfully admitted. 8 U.S.C. § 1255(a); 8 C.F.R. § 245.1(b)(3). Nonetheless, the conviction would bar his re- immigration to the United States via the consulate abroad, and the dismissal of his appeal, even without prejudice, of his wrongful conviction would forever deprive him of the privilege he would otherwise enjoy of seeking to return lawfully to his family in this country. This Court should not countenance causal inquiries by State courts, which requires both a specialized knowledge of immigration law and the parsing of extrinsic evidence wholly unrelated to the underlying criminal proceeding. Instead, judicial pragmatism and due process strongly suggest that this Court should guarantee intermediate appellate review of all convictions. Incorrectly 15 finding that a conviction played no role could ultimately result in the non-citizen’s permanent exclusion. 2. In practice, deported defendants do submit to re-prosecution in the U.S. The Defendant-Appellants accurately laid out the immigration mechanisms for deported defendants to reenter the United States after removal. See Serrano Br. at 29-31, 34; Serrano Reply Br. at 13-14; Harrison Br. at 26-27; Harrison Reply Br. at 14-15. At minimum, the People also acknowledge that this Court’s Ventura decision prevents trial courts from dismissing an involuntarily deported defendant’s post-conviction relief motion. Harrison Resp. Br. at 43 (appellant “mandatorily entitled to” a “full merits review of his claim” by the trial court).4 However, when a conviction did not affect an individual’s deportation, the State appellate court still remains ill-equipped to determine that the conviction does not create an immigration disability preventing the immigrant’s return to the United States. As Defendant-Appellants note (Harrison Br. at 26; Serrano Reply Br. at 6-8), both the conviction and the length of a sentence are relevant to the 4 In contrast to this position, the People have not conceded the defendant’s right to post-conviction relief in front of the trial court and urged dismissal in People v. Worklis, 2011 WL 7402818 (Sup. Ct., Kings Co. 2011); People v. Williams, 2012 N.Y. Slip Op. 32281(U) (Sup. Ct., N.Y. Co. 2012); People v. Reid, 34 Misc. 3d 1234A (Crim. Ct., Queens Co. 2012); People v. Bonilla, 41 Misc. 3d 894, 897 (Sup. Ct., Queens Co. 2013); People v. Philogene, 45 Misc. 3d 1220(A) (Sup. Ct., N.Y. Co. 2014). This is problematic because removal proceedings are not stayed pending applications for post-conviction relief. See Matter of Polanco, 20 I&N Dec. 894 (BIA 1994). 16 immigration authorities’ exercise of discretion in deciding whether to allow a deportee to temporarily return to the United States for a specific purpose, notwithstanding his or her inadmissibility on criminal grounds. A deportee whose removal was not caused by the conviction on appeal may therefore retain a vital interest in vacating the conviction at bar.5 Ultimately, the People have the authority to request administrative parole of the non-citizen into the United States under 8 U.S.C. § 1182(d)(5) to face re- prosecution. The immigration statute permits immigration authorities to allow any individual to enter the United States on a “case-by-case basis for urgent humanitarian reasons or significant public benefit,” id. Paroling a defendant into the country to stand trial has long been recognized as having a “significant public benefit” within the meaning of the statute. See Matter of Accardi, 14 I.&N. Dec. 367, 368 (BIA 1973) (noting that the legislative history of the INA reveals that Congress intended administrative parole to be used to bring in noncitizens for the “purposes of prosecution” (quoting S. Rep. No. 1137, 82d Cong., 2d sess. 12-13)); see also 28 U.S.C. § 1821 (declaring “aliens who have been paroled into the 5 In contrast, when a court vacates an involuntarily deported defendant’s plea that was the basis for deportation, the defendant may be able to resume lawful status, allowing reentry into the United States to face re-prosecution. The court’s vacatur allows for a resumption of status. See Matter of Rodriguez-Ruiz, 22 I.&N. Dec. 1378 (BIA 2000) (holding that a conviction vacated pursuant to N.Y. Crim. Proc. L. § 440 is not a “conviction” under immigration law). 17 United States for prosecution, pursuant to section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. § 1182(d)(5))” ineligible for certain benefits). Indeed, the Department of Homeland Security’s U.S. Immigration and Customs Enforcement Bureau explains that “a prosecutor who needs to bring an alien… defendant into the United States for a criminal trial who may not be legally authorized to enter” can request Significant Public Benefit Parole through the local ICE Special Agent in Charge Parole Coordinator. See U.S. Immigration and Customs Enforcement, “Tool Kit for Prosecutors,” available at https://www.ice.gov/doclib/about/offices/osltc/pdf/tool-kit-for-prosecutors.pdf (last accessed February 8, 2016). Notably, the guide explains that the prosecutor’s office takes responsibility “for supervising and monitoring the whereabouts of the parolee while present in the United States, and must ensure the parolee’s timely departure.” Id. ICE defers to the prosecutor’s office to determine when a defendant’s presence is necessary in the United States, and the only bars to parole under the program involve former ship crewmen, security threats, and absconders. Id. Relevant factors for exercising parole include whether the non-citizen can pay a bond, the non-citizen’s community ties and known addresses, and conditions such as periodic reporting. 8 C.F.R. § 212.5(d)(1)-(3). Critically, parole waives all inadmissibility grounds, including the ground identified by the parties in these cases, 8 U.S.C. § 1182(a)(9)(A)(ii) (non-citizens 18 previously removed from the United States). Serrano Resp. Br. at 30; Harrison Resp. Br. at 29-30. In addition, ICE’s authority to parole non-citizens remains unreviewable by the courts, which helps explain the lack of reported “case[s] in which a convicted defendant was allowed to return [on parole].” Harrison Resp. Br. at 30. An additional misunderstanding by the People relates to “crimes involving moral turpitude.” While the immigration term of art may be the “broadest category of offenses under the immigration law,” defendant’s “felony firearms offense” is not included in that category. Harrison Resp. Br. at 30; Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (no court has ever found possession of a weapon to be a CIMT).6 New York criminal possession of a firearm is not an inadmissible offense and would not, as a matter of law, prevent a non-citizen’s entry into the United States. Deported defendants whose convictions are vacated have in fact made use of the mechanisms described above to re-enter the United States to submit to re- prosecution. Others resolve the pending criminal case without making a personal appearance. For instance, in Cardoso-Tlaseca v. Gonzalez, 460 F.3d 1102 (9th Cir. 2006), the defendant was removed to Mexico while his post-conviction relief case was pending in state court. Id. at 1104. Subsequently, the defendant achieved 6 This explains Defendant-Appellant Harrison’s statement that his conviction “rendered him deportable, [but] did not render him inadmissible.” Harrison Br. at 26. The People misconstrue that statement as Harrison “incorrectly asserts that … he is still ‘admissible’.” Harrison Resp. Br. at 29. Those are different assertions. 19 vacatur of the conviction for cultivating marijuana for personal use that had served as one of the bases for the removal order. Id. While the defendant remained in Mexico, the prosecutor amended the complaint to charge the defendant with simple possession of marijuana. Id. The defendant then entered a guilty plea and completed probation successfully, after which the court expunged the conviction.7 Id. at 1105. In New York, non-felony pleas may similarly be entered by counsel without the requirement of the defendant’s personal appearance. See N.Y. Crim. Proc. L. § 220.50(1). Thus, deportation does not operate as a bar to post-vacatur resolution of a criminal case. In another example, Ayman Salama was ordered deported in 2006 based on a 1997 conviction for felony Welfare Fraud.8 See In re Ayman Salama, 2010 WL 5559194 (BIA Dec. 17, 2010). He filed a post-conviction relief petition alleging ineffective assistance of counsel, which was granted in December 2008. Id. Post- vacatur, the defendant moved to re-open his deportation case, which he accomplished in December 2010. Id. at *2. Upon his return to the United States, in February 2012, the defendant re-pled to a non-deportable offense, misdemeanor Conversion, in return for the dismissal of the Welfare Fraud charge. See Abstract 7 This office confirmed with Mr. Cardoso-Tlaseca’s attorney that Mr. Cardoso- Tlaseca was granted cancellation of removal on April 21, 2010, and allowed to remain in the United States as a Lawful Permanent Resident. 8 The defendant was ordered deported in absentia while outside of the United States; he was denied admission in 2007 when he attempted to return to the United States. See id. 20 of Judgment, Plea Agreement, and Order Granting State’s Motion to Dismiss, Marion Superior Court, Cause No. 49G05-9506-PC-081518.9 Thus, for some deported defendants, vacatur will pave the way for the defendant to return in person to resolve the open criminal case. Similarly, the defendant in Pruidze v. Holder, 632 F.3d 234, 235 (6th Cir. 2011), a lawful permanent resident deported to Russia for a controlled substance violation, regained his LPR status by achieving post-deportation vacatur of the conviction. As a result of the successful post-conviction relief petition, the Michigan trial court re-opened the criminal case. Id. Subsequently, the BIA re- opened and terminated the removal proceedings, which allowed the defendant to lawfully return to the United States for re-prosecution. See In re Vakhtang Pruidze, No. A77-434-982 (BIA Sept. 22, 2011). Likewise, an Australian woman who had been deported based on a conviction for theft successfully petitioned for post-conviction relief in Oregon state court.10 Subsequent to the vacatur of the theft conviction, she achieved the re-opening and dismissal of her removal proceeding, paving the way for her return to the United States in her previous status as a lawful permanent resident. Significantly, this was possible despite the fact that she had other convictions for 9 The criminal court documents are on file with counsel for amicus and are available at the Court’s request. 10 The immigration and criminal court records detailing this case are on file with counsel for amicus and available at the Court’s request. 21 “crimes involving moral turpitude” which rendered her inadmissible to the United States (though the same convictions would not have made her deportable from within the U.S.). See 8 U.S.C. § 1182(a)(2)(A)(i) (providing that conviction of a crime involving moral turpitude renders noncitizen inadmissible, unless it falls within “petty offense” exception); compare 8 U.S.C. § 1227(a)(2)(A)(i) (providing that a single crime involving moral turpitude must be committed within five years of lawful admission in order to render a noncitizen deportable from within the U.S.); 1227(a)(2)(A)(ii) (providing that multiple crimes involving moral turpitude do not render a noncitizen deportable if they arise from a single scheme of criminal conduct). However, because she returned to the United States in the lawful resident status that had been wrongfully stripped from her on the basis of an invalid conviction, she was assimilated to the status of a lawful resident who had never departed the U.S, and was not prevented from re-entering the Unites States even though as an applicant for admission she would have been deemed inadmissible. Thus, both law and experience show that any categorical judgment that a deported defendant would not be able to submit to re-prosecution is unfounded. Other state and federal courts reject such a categorical judgment. See Reyes-Torres v. Holder, 645 F.3d 1073, 1075 (9th Cir. 2011) (California court vacated conviction despite defendant’s deportation to Mexico); Pruidze, 632 F.3d at 235 22 (Michigan court vacated conviction despite defendant’s deportation to Russia); Wiedersperg v. INS, 896 F.2d 1179, 1180 (9th Cir. 1990) (California court vacated conviction despite defendant’s deportation to Austria); Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981) (federal court vacated conviction despite defendant’s deportation to Mexico). New York courts should likewise assume that a deported defendant seeking to re-open his criminal case can and will return to his family and friends in the United States to resolve the legal issues barring his permanent lawful re-settlement in the United States. CONCLUSION For the foregoing reasons, amicus respectfully requests that this Court reinstate the appeals of Defendant-Appellants and hold that courts of this State should hear the appeals of involuntarily deported defendants without trying to determine whether the conviction affected their removal or complicates their return to the U.S., recognizing the inherent difficulty in making complex legal and factual findings. Respectfully submitted, Ryan Muennich Counsel for amicus curiae Dated: New York, NY February 8, 2016