cation for Stay of Deportation, attached as Exhibit D to
Government's Letter. This motion was denied. Order of the
Immigration Judge, attached as Exhibit G to Government's Letter.
Counsel filed an appeal in October 1998. Notice of Appeal,
attached as Exhibit H to Government's Letter. Before this appeal
could be heard, Mr. Copeland was deported. After deportation,
the Board of Immigration Appeals denied the appeal as moot.
Board of Immigration Appeals decision, attached as Exhibit I to
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 an
alien's bad character or undesirability as a permanent resident.
Lovell, 52 F.3d at 461, citing Marin, 1978 WL 36472, 16 I. &
N. Dec. at 584585. More than half of 212(c) applications have
been approved. St. Cyr, 533 U.S. at 296 n. 5, 121 S.Ct. 2271.
A weapons convictions would have barred section 212(c) relief.
See Cato v. I.N.S., 84 F.3d 597, 600 (2d Cir. 1996). No bar to
section 212(c) relief existed in cases involving drug offenses.
Montilla v. I.N.S., 926 F.2d 162, 170 (2d Cir. 1991).
B. Illegal Reentry
Section 1326(a) of Title 8 of the United States Code makes it
a crime for a deported or removed alien to enter, attempt to
enter, or be found in the United States without the expressed
consent of the Attorney General. To sustain this charge, the
government must prove that the alien previously had been
deported properly. If the deportation order is successfully
challenged collaterally it cannot be used to establish prior
A deportation order can be collaterally challenged if: (1) the
alien has exhausted administrative remedies; (2) the deportation
proceedings improperly deprived the alien of the opportunity for
judicial review; and (3) the entry of the order was
fundamentally unfair. 8 U.S.C.
§ 1326(d). This statute codified the Supreme Court's holding in
United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107
S.Ct. 2148, 2155, 95 L.Ed.2d 772, 782-83 (1987), limiting the
use of deportation proceedings to prove a charge of illegal
reentry. See also United States v. Perez, 213 F. Supp.2d 229
(E.D.N.Y. 2002). An alien attempting to make this kind of
collateral attack must prove that prejudice resulted from the
procedural errors, that is to say the alien must demonstrate
that without the procedural errors, he might not have been
removed. United States v. Fernandez-Antonia, 278 F.3d 150, 159
(2d Cir. 2002); Perez.
To exhaust administrative remedies, an alien is generally
required to appeal from an Immigration Judge's order to the
Board of Immigration Appeals. United States v. Johnson, No.
3:99-CR139(EBB), 2000 WL 620324, at *7 (Conn. May 1, 2000),
citing Mejia-Ruiz v. I.N.S., 51 F.3d 358, 364 (2d Cir. 1995).
This requirement does not have to be met when making such an
appeal would be futile because the body being appealed to lacks
power — or believes that it lacks the power — to resolve the
matter in the applicant's favor. Sousa v. I.N.S., 226 F.3d 28,
32 (1st Cir. 2000).
At the time of Mr. Copeland's deportation proceedings, the
right to judicial review of Board of Immigration Appeals
decisions did not exist. Because the deportation proceedings
began before April 1, 1997 and the deportation order became
administratively final after October 30, 1996, this case is
controlled by the transitional rules of IIRIRA. Henderson v.
I.N.S., 157 F.3d 106, 117 (2d Cir. 1998). Those rules state
that "there shall be no appeal permitted in the case of an alien
who is inadmissible or deportable by reason of having committed
a criminal offense covered in [certain sections of the code]."
Id., citing IIRIRA § 309(c)(4)(G). This part of the IIRIRA was
held not to preclude petitions for habeas corpus in the federal
district court in Henderson, 157 F.3d at 118-122.
AEDPA and IIRIRA eliminated the possibility of section 212(c)
relief for aliens convicted of committing an aggravated felony.
This policy was applied retroactively. In St. Cyr, the Supreme
Court modified the retroactivity rules, holding that "§ 212(c)
relief remains available for aliens . . . whose convictions were
obtained through plea agreements and who, notwithstanding those
convictions, would have been eligible for § 212(c) relief at the
time of their plea under the law then in effect." 533 U.S. at
326, 121 S.Ct. 2271. If an alien entered a plea of guilty before
the effective dates of AEDPA or IIRIRA, then that alien is
eligible for section 212(c) relief. The effective date of AEDPA
is April 24, 1996. Pub.L. No. 104-132, 110 Stat. 1214 (1996).
The effective date of IIRIRA is April 1, 1997. St. Cyr, 533
U.S. at 315, 121 S.Ct. 2271. The alien needs to prove that there
is a reasonable likelihood that there would have been no removal
if the procedural error had not occurred. Fernandez-Antonia,
278 F.3d at 159; see also Hart, 00-CR-915, Transcript of
III Application of Law to Facts
Although the defendant did not appeal to the Board of
Immigration Appeals from the decision of the Immigration Judge,
any attempt to do so would have been futile because at the time
of his deportation, AEDPA and IIRIRA were being interpreted by
INS in a manner that would have automatically precluded relief.
The defendant therefore need not have engaged in a futile
attempt to appeal his order of deportation.
The deportation order was fundamentally unfair, as required
for a collateral
attack, because the Immigration Judge not only failed to advise
the defendant of the existence of discretionary relief, but
affirmatively misled him by indicating that he was ineligible
for such relief. This misadvice improperly, as it turned out,
discouraged the defendant from seeking discretionary relief. As
a result, no immigration judge ever determined whether the
defendant was worthy of section 212(c) relief. Fundamental
unfairness was prejudicial to the defendant because there is a
reasonable likelihood he would have been granted 212(c) relief.
Cato, a weapons case, does not adversely affect defendant.
In that case, the deportation of the alien was predicated on the
gun charge. In the instant case, the deportation proceedings
were based upon the drug charge. Drug charges did not then have
a preclusive effect on section 212(c) applications. Because the
deportation proceedings were based upon the drug conviction, and
because the weapons convictions were not considered by the
Immigration Judge, the defendant was eligible for a section
Because the deportation order violated Mr. Copeland's Due
Process rights, it cannot be relied upon to establish the prior
deportation or removal needed to sustain a charge of illegal
reentry. 8 U.S.C. § 1326. The Indictment is dismissed.
The res judicata effect of this dismissal on any future
immigration proceedings is not addressed.
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