The opinion of the court was delivered by: Weinstein, Senior District Judge.
AMENDED MEMORANDUM AND ORDER
Defendant, charged with criminal reentry into this country,
moves to dismiss the indictment on the collateral grounds that
his prior deportation was unlawful and so cannot be used as a
predicate in this criminal case. The motion is granted because
the prior deportation conflicts with the Supreme Court's
decision in I.N.S. v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct.
2293, 150 L.Ed.2d 347, 378 (2001). See e.g. United States v.
Perez, 213 F. Supp.2d 229 (E.D.N.Y. 2002) (dismissing criminal
prosecution for reentry after deportation on ground of lack of
due process in deportation); United States v. Hart, 00-CR-915,
Transcript of 7/20/2001 (Dearie, J.) (same).
Richard Copeland is a citizen of Jamaica. In 1982, when he was
twelve years old, he came to the United States and lived here as
a lawful permanent alien until his deportation in 1998. At the
time of deportation, Mr. Copeland was living with and supporting
his two children, aged 11 and 4, and their mother, all United
In 1989, Mr. Copeland was arrested and charged with criminal
possession of a controlled substance and criminal possession of
a weapon. He failed to appear on these charges and a bench
warrant was issued. In 1995 he was arrested for shooting a
person. Mr. Copeland pleaded guilty to all three charges. He
served concurrent sentences from October 1995 to September 1998.
Based upon the attempted sale conviction, in May 1996 the
Immigration and Naturalization Service ("INS") began deportation
proceedings charging him with being a deportable alien. See
Sections 241(a)(2)(B)(i) and 241(a)(2)(A)(iii) of the
Immigration and Nationality Act. A deportation hearing was held
in August 1996. The Immigration Judge informed Mr. Copeland of
his right to an attorney and to appeal the Immigration Judge's
decision. Transcript of Hearing held on August 7, 1996, attached
as Exhibit A to Government's Letter of June 14, 2002
("Government's Letter"). The Immigration Judge then adjourned
the proceedings to give Mr. Copeland the opportunity to find an
Still without counsel, at his deportation hearing in November,
1996, Mr. Copeland conceded deportability as charged. Transcript
of Hearing held on November 27, 1996 ("November 27 Transcript")
at 12, attached as Exhibit B to Government's Letter.
After being told that "[t]here's no relief available to you
anymore because the law changed in April," Mr. Copeland was
informed of his right to appeal the Immigration Judge's
decision. Id. The Immigration Judge ruled that Mr. Copeland
was ineligible for a hearing and potential waiver of deportation
under former section 212(c) of the Immigration and
Naturalization Act ("INA"), 8 U.S.C. § 1182(c), based on the
then-current interpretation of changes to the INA created by the
Illegal Immigration Reform and Immigrant Responsibility Act
("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009, § 304(B) (Sept.
30, 1996) and Anti-Terrorism and Effective Death Penalty Act
("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). IIRIRA had
the effect of repealing section 1182(c) while AEDPA allowed for
the retroactive denial of section 212(c) relief. This
interpretation of nonavailability of section 212(c) relief was
subsequently invalidated by the Supreme Court in I.N.S. v. St.
Cyr. 533 U.S. at 326, 121 S.Ct. 2271, holding that section
212(c) relief is available to aliens with convictions based on
pleas of guilty entered prior to the enactment of IIRIRA and
In the spring of 1999 the INS became aware that Mr. Copeland
had returned to the United States. He was arrested and is
presently charged with having been found in the United States
subsequent to a deportation for an aggravated felony conviction.
8 U.S.C. § 1326.
A. Deportation and 212(c)
Aliens convicted of certain crimes, labeled "aggravated
felonies" in immigration law, become deportable. See
8 U.S.C. § 1227(a)(2)(A)(iii). Certain drug offenses, including
defendant's, constitute aggravated felonies.
8 U.S.C. § 1101(a)(43)(B). Prior to 1996, former section 212(c) of the INA
allowed aliens to apply for a discretionary waiver of
deportation. See St. Cyr, 533 U.S. at 294-97, 121 S.Ct. 2271
(history of section 212(c)).
When determining whether to grant a section 212(c)
application, an Immigration Judge will "balance the adverse
factors evidencing an alien's undesirability as a permanent
resident with the social and humane considerations presented in
his behalf." Matter of Marin, 1978 WL 36472, 16 I. & N. Dec.
581, 584 (BIA 1978). The Judge will consider positive factors
such as family ties within the United States, length of
residence in the United States, evidence of hardship to the
alien and the alien's family in the event of deportation,
employment history, property or business ties, and evidence of
good character and likelihood of positive contributions to
American society when deciding whether to grant 212(c) relief.
Lovell v. INS, 52 F.3d 458, 461 (2d Cir. 1995). Adverse
factors that will be considered include the nature and
circumstances of the cause for deportation; additional
immigration law violations; the existence, recency, seriousness,
and nature of a criminal record; and other indications of ...