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UNITED STATES v. FERMIN-RODRIGUEZ

April 2, 1998

UNITED STATES OF AMERICA,
v.
OSVALDO FERMIN-RODRIGUEZ, Defendant.



The opinion of the court was delivered by: WOOD

OPINION and ORDER

 WOOD, U.S.D.J.

 Defendant Osvaldo Fermin-Rodriguez ("Fermin") is charged with illegally reentering the United States subsequent to a deportation for an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). *fn1" Defendant moves to dismiss the Indictment against him, as a matter of law, on the ground that the Government cannot establish an essential element of a § 1326(a) charge of illegal reentry, namely that he was "deported" within the meaning of § 1326. See United States v. Flores-Peraza, 58 F.3d 164, 166 (5th Cir. 1995) (deportation is essential element of § 1326 illegal reentry crime); United States v. Mancebo-Santiago, 875 F. Supp. 1030, 1032 (S.D.N.Y. 1995) (same).

 This motion calls upon the Court to address whether an alien is "deported" for the purposes of 8 U.S.C. § 1326 if the Immigration and Naturalization Service ("INS") removes an alien against his will from the United States at a time when the order authorizing his deportation is stayed pending an appeal from a Board of Immigration Appeals decision to one of the United States Circuit Courts of Appeals. It also requires the Court to address whether the argument that he was not "deported" constitutes a collateral attack on defendant's deportation proceedings or deportation order, thus implicating the limitations on collateral challenges prescribed by § 1326(d) and United States v. Mendoza-Lopez, 481 U.S. 828, 837-41, 95 L. Ed. 2d 772, 107 S. Ct. 2148 (1987).

 For the reasons set forth below, the Court holds that defendant's argument relates to the construction of a statutory term -- "deported" in § 1326 -- and is not a collateral attack on either his deportation proceedings or the order resulting from those proceedings. The Court also holds that when an alien is removed from this country against his will by the INS at a time when his order of deportation has been stayed, the alien has not been "deported" for the purposes of § 1326. The Court thus grants defendant's motion to dismiss the Indictment.

 I. Background and Procedural History

 To understand defendant's argument that he was not "deported" for the purposes of § 1326 requires a review not only of his immigration status, but also the procedural posture of the INS's attempt to deport him in 1992.

 On July 26, 1968, INS issued Fermin an immigration visa permitting him to enter the United States from the Dominican Republic, where he was born. Thereafter, Fermin entered the United States and grew up in New York, but remained a citizen of the Dominican Republic. On May 15, 1990, Fermin pleaded guilty to criminal possession of a controlled substance in the third degree, in violation of New York Penal Law § 220.16, in the New York State Supreme Court, New York County. The indictment to which Fermin plead guilty charged him with possession of a heroin with intent to sell it. (Gov't Exh. V, People of the State of New York v. Oswald Fermin, Indictment No. 9N108107).

 On January 17, 1992, the INS commenced deportation proceedings against Fermin by order to show cause. The INS alleged that Fermin was deportable on two statutory grounds: (1) that he had been convicted of an aggravated felony, and was therefore deportable under the Immigration and Nationality Act ("INA") § 241(a)(2)(A)(iii), codified at 8 U.S.C. § 1251(a)(2)(A)(iii), and (2) that he had been convicted of a controlled substance violation, and therefore was deportable under INA § 241(a)(B)(i), codified at 8 U.S.C. § 1251(a)(2)(B)(i). After several hearings before an Immigration Judge Charles A. Wiegand, III, Judge Wiegand ruled on May 12, 1992 that Fermin was deportable on both of these statutory grounds. Judge Weigand denied Fermin's petition for a discretionary waiver of deportation under INA § 212(c), 8 U.S.C. § 1182(c), and ordered Fermin to be deported.

 Fermin then appealed Judge Wiegand's decision to the Board of Immigration Appeals ("BIA") on the grounds that Judge Weigand (1) erred as a matter of law in finding that Fermin was deportable as an alien convicted of an aggravated felony pursuant to § 241(a)(2)(A)(iii) of the INA, and (2) erred in failing to grant Fermin's application of a waiver of deportation pursuant to § 212(c) of the INA. On September 3, 1992, the BIA issued a written opinion in which it decided that, although Fermin was deportable as an alien convicted of an offense relating to controlled substances pursuant to § 241(a)(2)(B)(i) of the INA, Judge Wiegand erred in concluding that Fermin was also deportable as an alien convicted of an aggravated felony pursuant to § 241(a)(2)(A)(iii) of the INA. The BIA found that the INS "had not sustained its burden of establishing deportability under Section 241 (a)(2)(A)(iii) of the Act and the immigration judge's decision with regard to that charge is accordingly reversed." (Def. Exh. F at 1.) The BIA affirmed Judge Wiegand's decision not to grant Fermin's application for a waiver of deportation pursuant to § 212(c) of the INA. Accordingly, the BIA affirmed Judge Wiegand's order of deportation and dismissed Fermin's appeal. On September 15, 1992, the INS District Director of Louisiana issued a Warrant of Deportation for Fermin. In accordance with the decision of the BIA, the Warrant indicated that Fermin was subject to deportation under § 241(a)(2)(B)(i) of the INA, but did not state that Fermin was subject to deportation under § 241(a)(2)(A)(iii) of the INA.

 On October 2, 1992, Fermin filed a pro se "Petition for Review of the Final Deportation Order Issued and Entered by [the BIA]" in the United States Court of Appeals for the Fifth Circuit. Pursuant to Rule 15 of the Federal Rules of Appellate Procedure, the Clerk of the Fifth Circuit served Fermin's petition for review upon the Attorney General of the United States and upon the Director of the Justice Department's Office of Immigration Litigation on October 2, 1992; a copy of Mr. Fermin's petition for review was also sent to John B.Z. Caplinger, the INS District Director in New Orleans, which copy was received by the INS's New Orleans office on October 5, 1992.

 In October 1992, § 106(a)(3) of the INA, codified as amended at 8 U.S.C. § 1105a (a)(3) (West, Westlaw USCA92 1992), *fn2" provided for an automatic stay of an order of deportation upon the filing of a petition for review in the appropriate Court of Appeals and service of that petition upon the applicable INS officials. In October 1992, § 106(a)(3) provided:

 
Service of the petition for review shall be made upon the Attorney General of the United States and upon the official of the [INS] in charge of the [INS] district in which the office of the clerk of court is located. The service of the petition for review upon such official of the [INS] shall stay the deportation of the alien pending determination of the petition by the court, unless the court otherwise directs or unless the alien is convicted of an aggravated felony, in which case the [INS] shall not stay the deportation of the alien pending determination of the petition of the court unless the court otherwise directs.

 8 U.S.C. § 1105a(a)(3). Under this provision, defendant properly served his petition for review. The exceptions to an automatic statutory stay did not apply in defendant's case. The BIA had reversed the finding of the immigration judge that defendant was deportable as alien who had been convicted of an aggravated felony under § 241(a)(2)(A)(iii) of the INA. *fn3" (Def. Exh. F at 1.) Further, the Fifth Circuit Court of Appeals did not enter any orders regarding Fermin's appeal until after October 30, 1992. On October 30, 1993, the INS placed Fermin on an American Airlines flight departing Miami, Florida to the Dominican Republic against his will. The Court finds that the automatic stay of deportation provided by § 1105a(a)(3) had taken effect at the time INS removed Fermin from the United States on October 30, 1992.

 On November 16, 1992, with the assistance of an former fellow inmate, Fermin filed an "Emergency Motion" in the Fifth Circuit seeking the court to order the INS to repatriate him to the United States to continue to prosecute his appeal of the order of deportation. In its response to this "Emergency Motion," the INS conceded that "in light of the [BIA's] specific finding in this case that petitioner is not an aggravated felon, petitioner is entitled to an automatic stay of deportation pending a review by this Court of his petition for review." (Def. Exh. N at 2.) On that basis, the INS did not oppose Fermin's reentry into the United States "pending a review of this Court of his pending petition for review ...


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