The opinion of the court was delivered by: Jack B. Weinstein, District Judge
Defendant, charged with criminal reentry into this country after
deportation, moves to dismiss the indictment on the collateral ground
that ineptness of his attorney during deportation proceedings had
resulted in violation of his right to due process, negating the predicate
for the prosecution. The claim is troubling. It illustrates why aliens
are often afforded the form of due process without its substance. The
motion is granted.
Mr. Perez is a citizen of the Dominican Republic. He became a permanent
resident of the United States in 1986 and lived in New York City with his
wife and daughter.
In April 1993 Mr. Perez was convicted of the attempted criminal sale of
a controlled substance and sentenced to six months incarceration and five
years probation. He apparently had pleaded guilty. Defendant's Criminal
History, attached as Exhibit A to Government's Response in Opposition to
Defendant's Motion to Dismiss Indictment (Apr. 25, 2002) ("Government's
After his release from Riker's Island, Mr. Perez was transferred to an
INS facility at Oakdale, Louisiana and his case was assigned to an
Immigration Judge. His application for a change of venue to New York, his
and his family's place of domicile, made through his attorney, John J.
Garzon, an attorney practicing in New York, was denied. A deportation
hearing was conducted in Louisiana on October 5, 1993. At this hearing,
the Immigration Judge found Mr. Perez to be deportable. His attorney
indicated an intention to make a "212(c) application." Transcript of
Hearing held on October 5, 1993, attached as Exhibit D to Government's
Response. By a 212(c) application, Mr. Garzon presumably meant that he
would seek a discretionary waiver of deportation under then-section
212(c) of the Immigration and Naturalization Act. 8 U.S.C. § 1182 (c)
(1994) (repealed by the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA), Pub.L. 104-208, 110 Stat. 3009, §
The Immigration Judge ordered that Mr. Garzon file any 212(c)
application by October 19, 1993 and that he personally appear at a hearing
in Louisiana on the application on November 1, 1993. On October 18,
1993, Mr. Garzon informed the clerk of the immigration court that he
intended to submit a motion for continuance. Nevertheless, no 212(c)
application or motion for a continuance had been filed on Mr. Perez's
behalf by October 19. On October 20 the Immigration Judge found that
because an application had not been timely filed Mr. Perez had "abandoned
any and all claims for relief from deportation." Order of Deportation,
attached as Exhibit D to Memorandum in Law in Support of Defendant's
Motion to Dismiss Indictment (April 10, 2002) ("Defendant's
Memorandum"). The Immigration Judge then ordered Mr. Perez deported. Id.
On October 28, Mr. Garzon filed a motion on behalf of Mr. Perez to
reopen the deportation proceedings. Along with this motion, Mr. Garzon
attached a motion for a continuance dated October 27, 1993, as well as an
"Application for Advance Permission to Return to Unrelinquished Domicile"
dated October 19, 1993. Motion to Reopen Deportation Proceedings,
attached as Exhibit E to Defendant's Memorandum. These papers did not
include a motion to stay the deportation order. A stay would have allowed
Mr. Perez to remain in the United States while he appealed from his order
of deportation. On November 9, 1993, the Immigration Judge denied the
motion to reopen the deportation proceedings on the ground that the
defendant had not shown good cause for failure to file the 212(c)
application by October 19, 1993. Mr. Perez was deported shortly after his
motion to reopen was denied.
On November 9, 1993, the same day that the Immigration Judge denied
reopening, but before actual deportation, Mr. Garzon filed a notice of
appeal to the Board of Immigration Appeals appealing the Immigration
Judge's denial of the motion to reopen. Notice of Appeal to the Board of
Immigration Appeals of Decision of Immigration Judge, attached as Exhibit
G to Government's Response. A memorandum in support of the appeal was
filed the following day by Mr. Garzon. Memorandum in Support of Appeal,
attached as Exhibit G to Government's Response. On December 7, 1993,
after actual deportation, the Board of Immigration Appeals affirmed the
decision of the Immigration
Judge denying the motion to reopen the
proceedings. Board of Immigration Appeals decision, attached as Exhibit H
to Government's Response.
Eight years later, on November 24, 2001, Mr. Perez arrived at John F.
Kennedy International Airport on a flight from the Dominican Republic.
Immigration and Naturalization Services agents stopped him. A records
check revealed his criminal conviction and deportation. Mr. Perez was
indicted on a charge of illegal reentry on December 11, 2001.
Section 1326(b)(2) of Title 8 of the United States Code makes it a
crime for an alien "whose removal was subsequent to a conviction for
commission of an aggravated felony" to reenter the United States. As
defined at the time of deportation an aggravated felony included "illicit
trafficking in a controlled substance . . . including a drug trafficking
crime." 8 U.S.C. § 1101 (a)(43)(B) (1994). The defendant met the
definition of an aggravated felon.
Put aside is the question — not raised by the parties on this
motion — of whether a person has "entered the United ...