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URBINA v. UNITED STATES

January 5, 1998

JUAN URBINA, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: KNAPP

 WHITMAN KNAPP, SENIOR DISTRICT JUDGE

 On April 26, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L.No. 104-132, 110 Stat. 1214 (1996). A provision of that enactment, as interpreted by the Attorney General, mandated that she establish procedures whereby persons in petitioner's position would automatically be seized and deported without any further action on her part. See, e.g., Mojica v. Reno (E.D.N.Y. 1997) 970 F. Supp. 130, 136. Specifically, as interpreted to be applied retroactively, section 440(d) of the AEDPA barred petitioner from seeking a section 212(c) waiver of deportation. Pursuant to such procedures, petitioner was seized and deported, thereby converting our sentence from one designed to assist the defendant in readjusting to his community to one that plucked him out of that community for life and, in effect, destroyed him. For reasons that follow, we vacate the judgment pursuant to which that sentence was imposed.

 BACKGROUND

 Petitioner was born in Honduras on May 25, 1953. At the age of six he was brought to the United States to live with his uncle Luis Urbina and his uncle's wife Virginia Gladen Urbina, both of whom then were, and still are, citizens of the United States. By document dated September 2, 1959, petitioner's biological mother transferred all legal parental power to her brother and his wife stating (as translated by the Consul General of Honduras):

 
I am giving my son for them to raise as he were their own son, giving him the education and all the necessaries spenders for support his life in the way that they could do it, and for to be his own parents (father and mother) before the law judicial and extrajudicially, in the way that I am no going to interfere in any moments and no claim in any time of any kind.

 As petitioner's adoptive parents, the Urbinas could have automatically acquired United States citizenship for him at anytime until he reached the age of sixteen. See 8 U.S.C. § 1434(a). However, they neglected to do so. Having had no further contact with Honduras after his arrival in the United States and unaware of such formal technicalities, petitioner considered himself an American. English was and is his only language.

 In 1973, when petitioner was twenty years old, his adoptive parents were divorced. The record does not disclose whether any or how much animosity between his parents preceded and/or followed their divorce. The PSI Report does indicate that petitioner had then begun abusing alcohol, and that by the time he had become involved in the robbery which resulted in his conviction he had become an alcoholic and addicted to drugs; and had lost contact with his adoptive family. See PSI Report at 16, 17 & 23. He had also suffered a previous conviction for which he had been considered for deportation, but found "not amenable" thereto. See Id. at 17. This finding apparently resulted from the then applicable statutory provision that in determining whether to deport the INS could consider "family ties within the United States, residence of long duration in this country (particularly when the inception of residence occurred at a young age), [and] evidence of hardship to the individual * * * if deportation were to occur." See Immigration and Nationality Act, 8 U.S.C. 1182(c) § 212(c). However, as above noted, such relief is no longer available.

 The robbery which ultimately resulted in the judgment of conviction with which we are now concerned occurred in August 1991. Petitioner was not apprehended until almost two years later. Immediately upon his arrest he began cooperating with the Government in its investigation of the crime, without insisting upon a cooperation agreement or any other writing which would assure him of a reward for his efforts.

 As above noted, by the time of sentencing, he had earned a 5K1.1 letter. We then observed to him "it looks like you are straightening yourself out." See Transcript of Sentencing, October 14, 1994, at 5. With that thought in mind we fashioned a sentence designed to further the straightening out process. As above noted, we imposed thirty six (36) months in prison (18 months of which he had already served) with the provision that petitioner participate in an alcoholism treatment program, such term of imprisonment to be followed by a three year period of supervised release which, as noted in the PSI Report, "would assist the defendant in his readjustment to the community." PSI Report at 23.

 While incarcerated, petitioner successfully completed the prison's alcoholic treatment program. In addition, he completed and obtained certificates for courses in communication skills, self development, advanced entrepreneurship, introduction to business, business law, marketing, legal assistance and a course entitled "Black Presence in the Bible." In his own words, petitioner states (Letter attached to Motion to Vacate Judgment of Conviction):

 
I'm not a career criminal, I have acknowledge my wrong-doings with the Law and I have paid my dues. I'm totally rehabilitated and took advantage of my incarceration to further enrich myself in several educational classes. I have also attended AA and drug rehab. classes and I'm ready to be a productive citizen in society.

 Pursuant to the above noted automatic procedures, upon completion of his term of imprisonment petitioner was immediately taken into custody by the Immigration and Naturalization Service pending deportation. On ...


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