BARRY J. PORTMAN                                                          

Federal Public Defender

ELIZABETH M. FALK

Assistant Federal Public Defender

450 Golden Gate Avenue

San Francisco, CA  94102

Telephone:  (415) 436-7700

 

Counsel for Defendant XXX-XXXX

 

 

 

 

IN THE UNITED STATES DISTRICT COURT

 

FOR THE NORTHERN DISTRICT OF CALIFORNIA

 

 

UNITED STATES OF AMERICA,

                                              Plaintiff,

v.

XXX XXX-XXXX,

 

                                          Defendant.

 

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No. CR 00-0000 XXX

 

DEFENDANT XXX XXX=s MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS INDICTMENT ON GROUNDS THAT PRIOR DEPORTATION CANNOT SERVE AS PREDICATE FOR ILLEGAL REENTRY PROSECUTION

 

Date:   May 26, 2004

Time:   1:30 p.m.

Court:  Hon. Phyllis J. Hamilton

 

 

 

 

 

TO:   UNITED STATES OF AMERICA, PLAINTIFF; AND KEVIN V. RYAN, UNITED STATES ATTORNEY; AND XXXXPH A. FAZIOLI, ASSISTANT UNITED STATES ATTORNEY:

 

PLEASE TAKE NOTICE that on May 26, 2004, at 1:30 p.m., before the Honorable Phyllis J. Hamilton, defendant XXXX XXX-XXXX (hereinafter AMr. XXX-XXXX@) will move this Court to dismiss the indictment on grounds that the prior deportation order was entered after constitutionally defective deportation proceedings and therefore cannot serve as a predicate for a prosecution under 8 U.S.C. ' 1326.

 

                                    MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

Defendant XXXX XXX-XXXX is charged with one count of violating 8 U.S.C. ' 1326,

illegal reentry after deportation.  The indictment against Mr. XXX-XXXX should be dismissed on the grounds that his prior deportation in 1997, as a matter of law, cannot constitute the prior lawful deportation order necessary for the government to establish the deportation element of a violation of 8 U.S.C. ' 1326.  The erroneous failure to the Immigration Judge to advise Mr. XXX-XXXX of possible relief from deportation denied him due process and rendered the resulting deportation order constitutionally flawed.  Consequently, Mr. XXX-XXXX suffered substantial prejudice because he was in fact eligible for relief from deportation and was nonetheless ordered removed from the United States.  The underlying deportation order cannot serve as a predicate for the prosecution for illegal reentry and the indictment must be dismissed. 

                                                         FACTUAL BACKGROUND

In 1977, at age fourteen, Mr. XXX-XXXX came to this country lawfully from Mexico as the son of a lawful permanent resident.  At that young age, Mr. XXX-XXXX filled out all the requisite paperwork and began residing in San Francisco with his parents.  See Application for Immigrant Visa and Alien Registration paperwork (AAlien Registration@) attached hereto as Exhibit B.  On September 27, 1985, after residing in this country for eight years, Mr. XXX-XXXX himself was granted legal permanent resident status and obtained an I-551 card lawfully.  See 1-551 Data, attached hereto as Exhibit C.  His entire extended family continues to reside here, all of whom have legal status in this country, either as United States citizens or lawful permanent residents.   Mr. XXX-XXXX also has children, all of whom are United States citizens.  His father, now deceased, lived his entire life in the United States; his mother remains in the United States legally as a lawful permanent resident and currently resides in Santa Rosa, California. 


As a youth, however, Mr. XXX-XXXX became heavily addicted to alcohol and controlled substances.  As a result, he has several alcohol and drug related offenses on his criminal record.  His last state conviction, which was the subject of the 1997 deportation proceedings at issue in the instant case, was for a felony possession of a controlled substance for sale. Mr. XXX-XXXX obtained this conviction as a result of a plea bargain on February 2, 1996, which resulted in a two year sentence.  See Abstract of Judgment B Prison Commitment Form, attached hereto as Exhibit D.

 Mr. XXX-XXXX was taken into INS custody directly from the state prison after serving his sentence for the 1996 drug case, where he was held without bond.  See INS Bond Forms, attached hereto as Exhibit E; see also INS Arrest Warrant, attached hereto as Exhibits G and H.  He was served an Order to Show Cause why he should not be deported on January 27, 1997.   See Order to Show Cause, attached hereto as Exhibit F.  The Order to Show Cause erroneously accused Mr. XXX-XXXX of entering the country illegally, absent inspection.  See Exhibit F at 3.  However, the Order also correctly stated that Mr. XXX-XXXX had been convicted of a crime that was, as of January 27, 1997, considered an aggrevated felony.  See id.

On February 10, 1997, Immigration Judge Richard Knuck (AIJ Knuck@) conducted the deportation proceedings of fifteen respondents, including Mr. XXX-XXXX, in Imperial, California.  See Transcript of Deportation Proceedings (ATranscript@) and Declaration of Frederick Anderson, attached hereto as Exhibit A.  During the proceedings, Mr. XXX-XXXX was not represented by counsel.  The proceedings with respect to Mr. XXX-XXXX were nothing short of an administrative fiasco.[1]  First, IJ Knuck was not aware that Mr. XXX-XXXX was a LPR until midway through Mr. XXX-XXXX=s proceedings.  The charging documents against Mr. XXX-XXXX Amistakenly@ charged him as an illegal alien.  See Exhibit A at 9-10.  As evidenced by this Amistake,@ Mr. XXX-XXXX did not receive any administrative consideration of his resident status pre-hearing.

After correcting this Amistake,@ IJ Knuck found that Mr. XXX-XXXX had been convicted of  an aggrevated felony, possession of a controlled substance for sale, while legally resident in the United States as a lawful permanent resident.  Following this finding, IJ Knuck made an additional, fatal Amistake@ by affirmatively stating that Mr. XXX-XXXX was not eligible for a Apardon:@

ANow, under the law as it was before April of last year, if you were a permanent resident for seven years or more, you can ask for a pardon.  However, the law changed in April of last year, and it took away that pardon.  Then there was another law changed in September that says the same thing.  Persons convicted of an aggravated felony, such as trafficking and heroin must be deported.@

 

Transcript at 10: 15-20 (emphasis added.)

After seemingly obtaining Mr. XXX-XXXX=s waiver of appeal, which Mr. XXX-XXXX now argues was invalid, the Immigration Judge ordered Mr. XXX-XXXX removed from the United States based upon his affirmative finding that Mr. XXX-XXXX was ineligible for relief from deportation.  See Transcript at 11.

LEGAL BACKGROUND

The core of Mr. XXX-XXXX= motion to dismiss rests on the Supreme Court=s ruling in INS v. St. Cyr, 121 S. Ct. 2271, 2271 (2001), a case with strikingly similar factual circumstances as this case.  As such, a discussion of both the factual and legal underpinnings of the Snt. Cyr decision is appropriate to this Court=s analysis of the instant case.

In St. Cyr, the respondent had pled guilty to a charge of selling a controlled substance ten years after his admission to the United States as a lawful permanent resident on March 9, 1996.  See id. at 2275.  Although this conviction made the respondent deportable under the immigration laws that existed in March of 1996, Snt. Cyr would have been eligible for a form of relief from deportation known as ASection 212(c)@ relief from the Immigration and Nationality Act of 1952.  See id. at 2276.  This relief was the Apardon@ referred to by IJ Knuck at Mr. XXX-XXXX= February 10, 1997 deportation proceedings.  However, Congress= enactment of the Antiterrorism and Effective Death Penalty Act of 1996 on April 24, 1996, (AAEDPA@) as well as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 on September 30,1996 (AIIRIRA@) effectively eliminated Section 212(c) relief for individuals convicted of crimes similar to Snt. Cyr=s and Mr. XXX-XXXX=.  Id.  As Snt. Cyr=s deportation proceeding was held after the AEDPA and the IIRIRA became effective, the Attorney General retroactively applied the amendments to the respondent=s case and found that he was ineligible for Section 212(c) relief from deportation.  See id.    

  In Snt. Cyr, the Supreme Court held that the Attorney General=s retroactive application of the AEDPA to Snt. Cyr=s case was incorrect.  Instead, the Court held that former  A' 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.@  St. Cyr, 121 S. Ct. at 2293.  As a result of this decision, Section 212(c) relief is still available for legal aliens who faced deportation as a result of convictions through plea agreements that were entered into prior to April 24, 1996, when pre-AEDPA Section 212(c) relief was still available.

 In the instant case, Mr. XXX-XXXX could not be more similarly situated with Snt Cyr.  Mr. XXX-XXXX=s conviction for possession for sale of heroin occurred on February 7, 1996, prior to the effective date of both AEDPA and IIRIRA B one month before Snt Cyr=s conviction date of March 8, 1996.  Moreover, Mr. XXX-XXXX was convicted of the exact same offense as Snt. Cyr - possession for sale of a controlled substance.  As with Snt. Cyr, Mr. XXX-XXXX was convicted pursuant to a plea agreement he entered into before AEDPA=s enactment date of April 24, 1996, in reliance that he would be eligible for 212(c) relief.  In sum, St. Cyr conclusively establishes that Mr. XXX-XXXX should have been advised of and permitted to apply for former ' 212(c) relief at the time of his deportation hearing in February of 1997.

However, as evidenced by the deportation hearing transcript, IJ Knuck mistakenly applied the AEDPA and the IIRIRA retroactively by failing to inform Mr. XXX-XXXX of his opportunity for discretionary relief from deportation via former ' 212(c).  Thus, IJ Knuck utterly erred in 1997, not only by failing to advise Mr. XXX-XXXX of his eligibility to apply for former ' 212(c) relief under the law in effect at the time of his convictions, but also by conclusively stating the Mr. XXX-XXXX was not eligible for any form of relief whatsoever.   Specifically, IJ Knuck informed Mr. XXX-XXXX that Athe law changed in April of last year, and it took away that pardon.@  Exhibit A at 10.  The IJ=s failure to correctly advise Mr. XXX-XXXX of his due process right to apply for section 212(c) relief is the linchpin of this collateral attack on his deportation order.

                                                                      ARGUMENT

I.       MR. XXX-XXXX WAS DENIED DUE PROCESS AT HIS DEPORTATION HEARING BECAUSE ALTHOUGH HE WAS ELIGIBLE FOR 212(c) RELIEF, HE WAS TOLD HE WAS NOT ELIEGIBLE, RESULTING IN A CONSTITUTIONALLY FLAWED DEPORTATION ORDER

 

A.        Mr. XXX-XXXX= Successful Collateral Attack on the 1997 Deportation Proceedings Must Result in a Dismissal of his Indictment under 8 U.S.C Section 1326.

 

A prior deportation order cannot serve as a predicate for a subsequent prosecution under 8 U.S.C. ' 1326 when the deportation proceedings giving rise to the order were fundamentally flawed.  See United States v. Mendoza-Lopez, 481 U.S. 828, 837 (1987); 8 U.S.C. ' 1326(d).  If a defendant succeeds in a collateral attack on the predicate deportation order, the indictment against him must be dismissed.  See United States v. Andrade-Partida, 110 F.Supp.2d 1260, 1272 (N.D.Cal. 2000). To prevail in a collateral attack on a prior deportation on grounds that the deportation proceedings were fundamentally flawed, the defendant must show that (1) he exhausted administrative remedies that were available to him; (2) the deportation proceedings at which the order was issued denied the opportunity for judicial review; (3) the entry of the order was fundamentally unfair.  See United States v. Pallares-Galan, 359 F.3d 1088, 12 (9th Cir. 2004)(citing 8 U.S.C. ' 1326(d)).  AAn underlying removal order is >fundamentally unfair= if (1) an alien=s >due process rights were violated by defects in the underlying deportation proceeding= and (2) >he suffered prejudice as a result of the defects.=@  Id. (citing United States v. Garcia-Martinez, 228 F.3d 956, 960 (9th Cir. 2000)).  Here, Mr. XXX-XXXX= collateral challenge to his 1997 deportation order meets each of the three prongs.

B.        As Mr. XXX-XXXX=s Waiver of his Right to Appeal was Invalid, Mr. XXX-XXXX Exhausted his Administrative Remedies

 

Although 8 U.S.C. ' 1326(d)(1) requires that an alien exhaust all administrative remedies before a collateral attack will succeed, the exhaustion requirement Acannot bar collateral review of a deportation proceeding when the waiver of right to an administrative appeal did not comport with due process.@  United States v. Ubaldo-Figueroa, 347 F.3d 718, 725 (9th Cir. 2003)(citing United States v. Muro-Inclan, 249 F.3d 1180, 1183-84 (9th Cir. 2001)). The Due Process Clause requires that an alien=s waiver of his right to appeal a deportation order be Aconsidered and intelligent.@  See id; see also Mendoza‑Lopez, 481 U.S. at 839.  

An alien who does not validly waive his right to appeal is not subject to the exhaustion of administrative remedies requirement of 8 U.S.C. ' 1326(d).  See Ubaldo-Figueroa, 347 F.3d at 726; Pallares, 359 F.3d at14-15 (AWhere >the record contains an inference that the petitioner is eligible for relief from deportation,= but the IJ fails to >advise an alien of this possibility and give him an opportunity to develop the issue,= we do not consider an alien=s waiver of his right to appeal his deportation order to be >considered and intelligent.=@) Id. (citing Muro-Inclan, 249 F.3d at 1182)(remaining citations omitted.)

Here, as the Ninth Circuit specifically decided in United States v. Leon-Paz,[2] 340 F.3d 1003, 1007 (9th Cir. 2003), Mr. XXX-XXXX=s waiver of his appellate rights was not Aconsidered and intelligent@ because the IJ failed to advise him of his right to seek relief under Section 212(c). Instead, the Immigration Judge specifically and erroneously informed Mr. XXX-XXXX that he was statutorily ineligible for any relief from deportation.  AThe requirement that the IJ inform an alien of his or her ability to apply for relief from removal is >mandatory= and >failure= to so inform the alien [of his eligibility for relief from removal] is a denial of due process that invalidates the underlying deportation proceeding.@  Ubaldo-Figueroa, 347 F.3d at 726(citing Muro-Inclan, 249 F.3d at 1183.)  The Immigration Judge=s erroneous advisement regarding Mr. XXX-XXXX=s rights and remedies under Section 212(c) of the INA thus resulted in an invalid waiver of his right to appeal, and Mr. XXX-XXXX meets the exhaustion requirement prong set forth in section 1326(d)(1).

C.        The Immigration Judge=s Categorical and Unequivocal Representation that Mr. XXX-XXXX was Ineligible for Relief Amounted to a Fundamental Due Process Error that Deprived Mr. XXX-XXXX an Opportunity for Judicial Review.

 

As a result of the Snt. Cyr decision, it is clear that IJ Knuck was required to advise Mr. XXX-XXXX of the relief that was available to him at the time of his underlying convictions, or, prior to the enactment of AEDPA and the IIRIRA in 1996.  Had the IJ correctly advised Mr. XXX-XXXX on the state of the law and applied former  ' 212(c) to his prior conviction, he would have found that Mr. XXX-XXXX was not barred from relief from deportation.  Because (1) Mr. XXX-XXXX was a lawful permanent resident with seven years of lawful unrelinquished domicile, (2) was not deportable under the firearms/explosives ground, and (3) had not been incarcerated for five years for one or more aggravated felonies, Mr. XXX-XXXX was eligible for ' 212(c) relief.  See Snt. Cyr, 533 S. Ct. at 2275.  The IJ=s fundamental error in this regard denied Mr. XXX-XXXX the opportunity for judicial review.  See Andrade-Partida, 110 F. Supp at 1271 (finding that the IJ=s failure to advise of section 212(c) relief deprived the alien of judicial review).

An immigration judge is obligated to advise an alien regarding apparent avenues for relief from deportation.  See, e.g., Duran v. INS, 756 F.2d 1338, 1341‑42 (9th Cir.1985) (citing 8 C.F.R. ' 242.17(a) (1984)). Using the same analysis employed in section IB above regarding Mr. XXX-XXXX=s invalid waiver of appeal, the Ninth Circuit has held that aliens in the exact position as Mr. XXX-XXXX were deprived a meaningful opportunity for judicial review.  See, e.g, Pallares-Galan, 359 F.3d at p. 22 (AFor the same reasons [as those stated to find that Pallares= waiver of appeal was procedurally defective] we hold that Pallares was deprived of a meaningful opportunity for judicial review.@); see also Ubaldo-Figueroa, 247 F.3d at 726; (holding same.)  Mr. XXX-XXXX thus meets the second prong in this collateral attack on his deportation proceeding.

D.        The Entry of Mr. XXX-XXXX= Deportation Order was Fundamentally Unfair

As cited in Section IA of this brief, Mr. XXX-XXXX successfully meets the third prong of his collateral attack by proving that the entry of the deportation order against him was Afundamentally unfair.@ In doing so, Mr. XXX-XXXX makes the requisite showing that (1) his due process rights were violated by defects in the underlying deportation proceeding; (2) he suffered prejudice as a result of the defects.

1.         Mr. XXX-XXXX= Due Process Rights were Violated by the Defects in the Underlying Deportation Proceeding Previously Described

 

 

 The Ninth Circuit has reiterated, utilizing the same reasoning described above in Section IB and IC, that an erroneous determination by an immigration judge that an alien is statutorily ineligible for relief from deportation such as section 212(c) relief is a basic denial of due process.  See, e.g., Ubaldo-Figueroa, 347 F.3d at 724 (stating that the IJ=s failure to inform alien that he may be eligible for relief under former INA ' 212(c) deprived him of due process); Leon-Paz, 340 F.3d at 1007 (A[Leon] was entitled to be considered for ' 212(c) relief.  When he was given advice to the contrary and thus, deprived of that possibility and of an appeal, his due process rights were violated.@) Mr. XXX-XXXX thus clearly meets the first aspect of the third prong of this collateral attack.

2..        Mr. XXX-XXXX was Prejudiced by the Due Process Violations in the Underlying Deportation Proceedings.

 

In order to establish that he has been prejudiced by the defect in the deportation proceedings, Mr. XXX-XXXX Adoes not have to show that he actually would have been granted relief.  Instead, he must only show that he had a >plausible= ground for relief from deportation.@  United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000)(citing United States v. Arce-Hernandez 163 F.3d 559, 563 (9th Cir. 1998).

Former section 212(c) of the Act created a form of relief from deportation for (1) lawful permanent residents with seven years of lawful unrelinquished domicile, (2) who are not deportable under the firearms/explosives ground, and (3) who have not been incarcerated for five years for one or more aggravated felonies.  See ' 11.10 Immigration Waivers: Section 212(c) Relief, California Criminal Law and Immigration, 1995 Edition, attached hereto as Exhibit M.  This type of relief is discretionary and a permanent resident can apply for this relief even if he has been convicted of serious offenses such as narcotics violations, aggravated felonies, or crimes involving moral turpitude.  See id.  The immigration court must then determine whether the application for relief will be granted.  Generally, the discretionary factors considered by the immigration judge at the hearing are whether the individual has shown rehabilitation and the strength of equities such as length of time in the United States, close family members with lawful status, residence of long duration in this country, evidence of hardship to the alien and the alien=s family upon deportation, history of employment, good character, service in the United States Armed Forces, and evidence of rehabilitation.  See Andrade-Partida, 110 F. Supp at 1267.

Prior to enactment of the AEDPA, immigration judges and the Board of Immigration Appeals (ABIA@) granted over half of the section 212(c) petitions they considered.  See Tasios v. Reno, 204 F.3d 544, 551 (4th Cir. 2000).  The class of aliens whose continued residence in this country has depended on their eligibility for ' 212(c) relief is extremely large, and a substantial percentage of their applications for ' 212(c) relief have been granted.  See St. Cyr,  533 S.Ct. at 2277.  AConsequently, in the period between 1989 and 1995 alone, ' 212(c) relief was granted to over 10,000 aliens.@  Id. 


Pursuant to former  ' 212(c), Mr. XXX-XXXX was eligible for discretionary relief from deportation.  Mr. XXX-XXXX was a lawful permanent resident with far more than seven years of lawful unrelinquished domicile.  At the time of his deportation, Mr. XXX-XXXX had lived in the United States since 1977, when he entered with his parents and siblings from Mexico when he was 14 years old.  See Immigration Application, Exhibit B.  This duration of residence is a strong positive equity for consideration.  See Pallares-Galan, 359 F.3d at p. 38.  Mr. XXX-XXXX also had several children who were born in the United States.  Additionally, Mr. XXX-XXXX=s parents, sisters, and brothers all lived in the United States and were either United States citizens or lawful permanent residents.  Mr. XXX-XXXX had also been gainfully employed throughout much of his life here.  Furthermore, Mr. XXX-XXXX was not deportable under the firearms/explosives ground.  Nor had Mr. XXX-XXXX served prison time for five years for one or more aggravated felonies.  

The only conceivable bar to deportation relief were Mr. XXX-XXXX=s previous convictions for driving under the influence of alcohol and possession of drugs.  However, given Mr. XXX-XXXX= lengthy residence in the United States prior to the deportation hearing of 1997 (approximately 20 years), the fact that his entire extended family resides in Northern California, as well as the vast number of cases granted section 212(c) relief prior to AEDPA=s enactment, he has made the requisite showing that he had a Aplausible@ basis for relief in 1997, and was thus prejudiced by the IJ=s failure to advise him of his rights under section 212(c).

II.     AS MR. XXX-XXXX= 1997 DEPORTATION ORDER IS THE ONLY DEPORTATION ORDER OF RECORD FOR MR. XXX-XXXX, THERE ARE NO ALTERNATE DEPORTATION ORDERS THAT CAN SERVE AS THE PREDICATE ELEMENT FOR MR. XXX-XXXX= PROSECUTION UNDER 8 U.S.C. SECTION 1326.

 

Mr. XXX-XXXX= 1997 deportation hearing is his only deportation proceedings of record.  His remaining deportations were merely the result of the INS= reinstatement of the February 10, 1997 order.  See Notices of Decision to Reinstate Prior Order, attached hereto as Exhibits J, K, and L.  A Reinstatement of Deportation is not an actionable deportation order in and of itself, but merely reaffirms the findings of predicate deportation proceedings that comport with due process requirements.  See, e.g. Castro-Cortez v. INS, 239 F.3d 1037, 1044 (9th Cir. 2001)(stating that a reinstatement of deportation has no effect absent the underlying deportation proceedings and order of deportation promulgated by an actual Immigration Judge.)  As a result of the due process infirmities of the 1997 Deportation Order in this case, each of these Reinstatement of Deportation Orders is similarly invalid, and none can serve as the predicate deportation required to prosecute Mr. XXX-XXXX under 8 U.S.C. ' 1326.   As a result, the indictment must be dismissed.

CONCLUSION

For the aforementioned reasons, this Court should dismiss the indictment against Mr. XXX-XXXX on the charge of illegal reentry, in violation of 8 U.S.C. ' 1326, based on the Immigration Judge=s failure to advise Mr. XXX-XXXX of former ' 212(c) relief, and because the Immigration Judge retroactively applied AEDPA and IIRIRA to Mr. XXX-XXXX=s prior conduct.  The failure to advise, coupled with the retroactive application of AEDPA and IIRIRA to Mr. XXX-XXXX, made his prior deportation order, as well as any and all orders reinstating that deportation, legal nullities that cannot serve as a predicate element for an illegal reentry prosecution. 

Dated: April 21, 2004

 

Respectfully submitted,

 

BARRY J. PORTMAN

Federal Public Defender

 

 

 

 

ELIZABETH M. FALK

Assistant Federal Public Defender

 

 


[1] Attached as Exhibit N to the file copy, the extra copy filed with the Clerk, and the Judge=s courtesy copy of this motion is a recording of the deportation proceedings on CD.  Defense counsel encourages your Honor to listen to the portion of the deportation tape reflecting Mr. XXX-XXXX=s portion of the proceedings, as the transcript alone does not adequately capture the obvious level of confusion and disorganization that transpired at the February 10, 1997 deportation hearing.

[2] The Leon-Paz case and its exact application to the instant case is discussed in detail in Pallares-Galan, 359 F.3d at 15-16. (AIn Leon-Paz, after the IJ erroneaously advised the alien that he was not eligible for relief under '212(c) of the former INA, the alien expressly declined to appeal the IJ=s order of removal.  We held that the alien=s due process rights had nonetheless been violated because of the IJ=s erroneous advice.@)