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October 22, 2002


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


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. 2271, 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).

I Facts

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 States citizens.

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 attorney.

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 AEDPA.

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.

II Law

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 ...

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