The opinion of the court was delivered by: LEISURE
Defendant Danilo Perez-Valdera ("defendant") moves to dismiss the first count of a three-count Superseding Indictment, which charges him with unlawfully reentering the United States, after lawful deportation, in violation of 8 U.S.C. § 1326. In addition, defendant moves to sever for trial this first count of the Superseding Indictment from counts two and three. For the reasons stated below, the Court denies defendant's motion to dismiss count one of the Superseding Indictment, and grants his motion to sever for trial count one of the Superseding Indictment from counts two and three.
Defendant, a citizen of the Dominican Republic, originally entered the United States in May of 1972, and thereafter obtained permanent resident status. See Affirmation of Assistant United States Attorney Joanna C. Hendon ("Hendon Aff.") Ex. A. The address listed for defendant on his original Immigrant Visa and Alien Registration form was 564 West 160th Street, Apartment #42, New York, New York 10032. From January of 1980 through May of 1983, defendant was convicted of three unrelated crimes. See Hendon Aff. Exs. B-F. In early July of 1986, defendant was released from prison on parole from his third conviction. After violating his parole, he was taken into federal custody on July 13, 1988 in New York City, see Hendon Aff. Ex. I, and subsequently incarcerated in the Federal Correctional Institute in Oakdale, Louisiana ("Oakdale").
While defendant was at Oakdale, a deportation investigation, originally initiated in 1983 during defendant's incarceration for his third conviction, see Hendon Aff. Ex. G., was renewed. The basis of the Immigration and Naturalization Services ("INS") proceeding was that defendant, a citizen of the Dominican Republic, had, after entry into the United States, been convicted of two or more crimes of moral turpitude not arising out of a single scheme of criminal conduct, and was therefore subject to deportation pursuant to § 241(a)(4) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(4). See Government's Memorandum of Law in Opposition to Defendant's Pretrial Motions at 4, Exs. G & H.
On October 12, 1989, a bail bond was posted on defendant's behalf, and he was released from custody. See Hendon Aff. Ex. O. Defendant immediately moved back to New York. Pursuant to a motion filed by his Louisiana-based counsel, Leo Jerome Lahey, Esq. ("Lahey"), the venue of the deportation proceedings was transferred from Louisiana to New York City on October 13, 1993. See Hendon Aff. Ex. P. Lahey's motion to withdraw as counsel, which was granted on November 15, 1989, stated that defendant could be served with any notices for hearings or other matters at 564 West 160th Street, Apt. #42, New York, New York 10032, which is "the home of [defendant's] mother, and is where [defendant] is residing." Hendon Aff. Ex. Q. Defendant does not dispute that he resided at this address upon his return to New York. On October 23, 1989, the Executive Office for Immigration Review ("EOIR") mailed to defendant, at the above address, notice that a hearing before an immigration judge was scheduled for November 14, 1989. See Affirmation of Thomas J. Bonita III ("Bonita Aff.") Ex. A. The letter was sent first-class mail. The notice stated that failure to appear may result in the hearing being held, and a decision to deport made, in defendant's absence. See id. After defendant failed to appear, the hearing was adjourned until January 9, 1990. Notice of this hearing was mailed first-class mail to defendant on November 15, 1990. See id. Ex. C. Again defendant failed to appear at the scheduled hearing, and again the hearing was adjourned, this time until May 22, 1990. Notice of this hearing was mailed first-class mail to defendant on March 6, 1990. See id. Ex. D. For a third time, he failed to show up.
At the May 22, 1990 hearing, the immigration judge decided to proceed without defendant. After finding that defendant had "received those notices but for some . . . unknown reason failed to appear," Hendon Aff. Ex. T at 1, the immigration judge, pursuant to § 241(a)(4) of the INA, ordered him deported. See id. Exs. T & U.
The next day the EOIR, again by first-class mail, sent defendant various documents relating to the hearing, including notice of his right to appeal the decision. See Bonita Aff. Ex. E. The EOIR notice informed defendant that his time to appeal the deportation order would expire on June 6, 1990. The EOIR did not receive an appeal. See Hendon Aff. Ex. V. On September 29, 1991, defendant was deported to the Dominican Republic. See id. Ex. W.
Defendant denies having ever received notice of the May 22, 1990 deportation hearing. See Affirmation of Danilo Perez-Valdera P 2. In addition, he denies having ever received notice informing him that a decision had been rendered and that he had a right to appeal. Id. P 3. According to EOIR policy, any evidence of the return of a mailed notice would have been placed in defendant's file. See Bonita Aff. P 6. His file did not contain such evidence. Id.
Defendant was arrested in New York City on April 25, 1995. See Hendon Aff. Ex. W. Subsequent to his arrest, a federal grand jury in the Southern District of New York returned a Superseding Indictment against defendant charging him with illegally reentering the United States following conviction for an aggravated felony. See 8 U.S.C. § 1326. The Superseding Indictment also contains two other counts, which charge defendant with (1) unlawful possession of a stolen check, and (2) unlawful possession of a United States Postal Money Order. See Affirmation of Julie Prag Vianale, Esq. ("Prag Vianale Aff.") P 2.
I. Defendant's Right to Challenge Collaterally the Deportation Proceedings
Section 276 of the INA provides that an alien who has been lawfully deported from the United States, and thereafter reenters the United States without the consent of the Government, is guilty of a felony. See 8 U.S.C. § 1326. Aliens charged with violation of § 1326 have a due process right to challenge collaterally the validity of their underlying deportation hearings. In United States ...