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U.S. v. BROWN

January 17, 2001

UNITED STATES OF AMERICA
V.
EVAN BROWN, DEFENDANT.



The opinion of the court was delivered by: Sifton, Senior District Judge.

  MEMORANDUM AND ORDER

Defendant Evan Brown is charged with illegal reentry into the United States following a previous removal pursuant to law, in violation of 8 U.S.C. § 1326(a) & (b)(2).

On November 8, 2000, defendant moved pursuant to Federal Rule of Criminal Procedure 12(b)(2) and the Fifth Amendment to the United States Constitution to dismiss the indictment against him, arguing that the removal order underlying the instant charge was invalid because he was not afforded an opportunity to depart from the country voluntarily. The government argues that there was no infirmity in the underlying removal procedure and that Brown may not collaterally attack his original removal order.

For the reasons set forth below, defendant's motion to dismiss the indictment is granted.

BACKGROUND

The following facts are drawn from the submissions of the parties in connection with the instant motion. Material disputes are noted.

In September 1991, Brown, a citizen of Ghana, was convicted in Thailand of conspiracy to import narcotics and sentenced to thirty months in prison. Upon his release in May 1994 from prison in Thailand, Brown was extradited to the United States to be prosecuted for conspiracy to import narcotics into the United States in violation of 21 U.S.C. § 963. On May 27, 1994, after being received into the custody of the Immigration and Naturalization Service ("INS") pursuant to the extradition warrant, Brown was paroled into the United States pursuant to § 212(d)(5) of the Immigration and Naturalization Act, 8 U.S.C. § 1182(d)(5),*fn1 in order to permit his appearance to confront the charges against him. According to INS Agent Stanley Stedman, Brown's period of parole was scheduled to expire on May 26, 1995; Brown claims that he was never informed when his period of parole would expire.

On November 14, 1994, Brown pled guilty in the United States District Court for the District of New Jersey to one count of conspiracy to import heroin in violation of 21 U.S.C. § 963 and remanded to the custody of the Bureau of Prisons to serve a sentence of 60 months' imprisonment to be followed by five years of supervised release.

On April 21, 1998, following the completion of his federal prison sentence and while in the custody of the INS in Oakdale, Louisiana, Brown was served with a letter from the INS informing him of his right, recognized by the INS in Matter of Badalamenti, 19 I. & N. Dec. 623, 626 (1988), to make preparations to leave the United States voluntarily within 30 days (the "Badalamenti letter"). According to the letter, if Brown was able to obtain "a non-refundable airline ticket with an open departure date and a valid Travel Document (Passport or Emergency Travel Permit) to Ghana," (Def.'s Mot. Ex. B.), he would be allowed to depart voluntarily; otherwise, removal proceedings would commence and he would be ordered removed. Upon receipt of this letter, Brown indicated in the manner provided by the letter that "I, Evan Owens Brown, do wish to return to Ghana at my own expense." (Id.) The government does not dispute that, because Brown was in custody, his passport and money were in the possession of the government when the Badalamenti letter was delivered. Brown plausibly claims that he expected the government to assist him in leaving the country voluntarily since both his passport and the funds required to obtain the airline ticket were in the possession and under the control of the government.

On the same day on which he received the Badalamenti letter, April 21, 1998, Brown was also served with a notice dated April 17, 1998, to appear for a removal proceeding. This notice informed Brown that he was "an arriving alien" and charged that he was subject to removal. (Def.'s Mot. Ex. A.)*fn2

On April 27, 1998, six days after Brown received the Badalamenti letter, Brown received notice of a hearing date, May 13, 1998, regarding the removal proceedings. On this date, which, like the notice, was prior to the expiration of the thirty day period, Immigration Judge Agnelis L. Reese held a hearing and ordered Brown removed to Ghana. Brown appeared at this hearing without an attorney.

At the hearing, the judge informed Brown of the charges against him, namely that Brown was a citizen of Ghana and not the United States, that Brown was extradited and paroled for "humanitarian reasons" into the country, and that he was convicted of the offense for which he was incarcerated. The immigration judge then informed Brown that "[t]here is no relief that is available to you under present immigration law. So I am going to order that you be removed from the United States to Ghana. Now if you agree with that decision you can accept it, if you disagree with it you would have thirty days to appeal it. What would you like to do?" (05/13/99 Hearing, at 5.) Brown responded that he accepted the immigration judge's decision and did not want to appeal. Brown then asked the immigration judge, "How will you assist me to facilitate my removal as quickly as possible?" (Id. at 6.) The immigration judge responded that an INS officer would contact Brown within the week. No mention was made at Brown's removal hearing by either the immigration judge or the INS attorney of Brown's right to depart voluntarily. Brown states that he believed that an immigration officer would assist him to depart voluntarily after the removal hearing was completed.

Following the hearing, Brown was removed from the United States on either November 17, or December 29, 1998; the government's exhibit 10 to its memorandum of August 8, 2000, contradicts its exhibit 11 in this regard.

Over a year after Browns's removal, on February 9, 2000, he appeared at John F. Kennedy International Airport ("JFK") and presented a Nigerian passport and a transportation letter issued at the United States Embassy in Banjul, the Gambia, that indicated that he was a lawful permanent resident named Henry Cosmas Ikemefuna Ofodili Uwakonye, a citizen of Nigeria. The INS reviewed the photograph and fingerprint indices of Uwakonye and determined that defendant's appearance and fingerprints did not match those of Uwakonye. Thereafter, defendant stated that he was not Henry Cosmas Ikemefuna Ofodili Uwakonye but was Cosmas Ofodili Uwakonye, the man's cousin, to whom he claimed to have sold his identity in 1993. Later in the same day, fingerprint test results established that the individual claiming to be Cosmas Ofodili Uwakonye was in fact Evan O. Brown. When confronted with this information, defendant admitted his identity, that he had been previously incarcerated, and thereafter left the United States. Brown states that he returned to the United States to collect approximately the $1,500 he earned while incarcerated that had not been used for his plan ticket to Ghana.

On April 20, 2000, Brown pled guilty before the undersigned to one count of illegal reentry in violation of 8 U.S.C. ยง 1326(a) & (b)(2). Defendant was thereafter scheduled to be sentenced on June 30, 2000, at which point he requested leave to withdraw his guilty plea. By memorandum and order dated November 6, 2000, as amended by decision and order ...


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