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October 22, 2002


The opinion of the court was delivered by: Robert P. Patterson, Jr., United States District Judge.


Defendant Rogelio Figueroa-Taveras ("Defendant") moves to dismiss the Government's indictment charging Defendant with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b)(2), on the basis that Defendant's prior deportation was unlawful. For the following reasons, Defendant's motion is granted.


Defendant, a citizen of the Dominican Republic, arrived in the United States to live in New York City as a legal immigrant on October 2, 1966 when Defendant was four years old. (Declaration of Steven M. Statsinger, dated July 17, 2002, ¶ 5.) On February 24, 1997, while Defendant was serving a sentence of three and a half to seven years for attempted possession of a controlled substance, the Immigration and Naturalization Service ("INS") issued an order to show cause alleging that Defendant was deportable on the basis of his conviction in November 1983 for criminal sale of a controlled substance in New York Supreme Court and sentence to a term of six months imprisonment and four and a half years of probation.*fn1 (Government's Brief in Opposition to Defendant's Motion for Dismissal of the Indictment, Ex. 1.) The deportation hearing commenced on May 8, 1997. (Statsinger Decl. ¶ 8.) Immigration Judge Mitchell Levinsky advised Defendant of his rights to appeal and to counsel at his own expense, and then granted an adjournment to July 7, 1997 to give Defendant an opportunity to retain counsel. (Id.) On July 7, 1997, Defendant proceeded pro se before Judge Levinsky, and Defendant stated that he wished to seek a waiver of deportation based on § 212(c).*fn2 (Id. ¶¶ 9-10; Ex. B.) Judge Levinsky advised Defendant that he was ineligible for § 212(c) relief due to its repeal by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") but further advised that the law could potentially change in the future to permit such relief to Defendant. (Id. ¶¶ 11-12; Ex. B.) According to the Transcript of the Deportation Hearing, Judge Levinsky explained that in the event that he decided to deport Defendant, Defendant could appeal that decision and possibly exercise his right to § 212(c) relief should the law change to permit such relief. (Statsinger Decl. Ex. B; Tr. at 4-5.) However, Judge Levinsky also told Defendant he was only eligible for early release from prison if he waived his right to appeal and accepted a deportation decision as final, and specifically stated that Defendant could not "apply for early release if [he was] appealing." (Id.; Tr. at 5.) Following the admission of Defendant's 1983 conviction into evidence, Judge Levinsky ordered Defendant to be deported to the Dominican Republic, and then offered Defendant the choices of accepting the deportation or appealing the decision. (Id. ¶¶ 14-15.) It is Defendant's position that he waived his right to appeal and accepted the order of deportation based on Judge Levinsky's advice that his waiver of appeal was necessary to obtain early release from his sentence. (Id. ¶ 16.) Defendant's position is that, had Defendant been advised that he could appeal his deportation and apply for early release, he would not have waived his appeal. (Id.)

Defendant was deported on August 22, 1999, after serving his minimum term of imprisonment of three and a half years in connection with his 1996 conviction for attempted criminal possession of a controlled substance in the third degree. (Gov. Opp. at 2.) At the time of the deportation hearing, Defendant had resided in the United States as a lawful permanent resident for 31 years, and had no family or ties of any kind to the Dominican Republic. (Statsinger Decl. ¶¶ 18-19.) The majority of Defendant's close family relatives lived near to him in New York City.*fn3 (Id. ¶ 20.) Defendant also had a history of employment from 1979 to 1996 during the periods he was not in prison.*fn4 (Id. ¶¶ 24-25.)

Subsequent to his deportation, Defendant re-entered the United States without first obtaining express consent from the Attorney General. (Gov. Opp. at 2.) His re-entry was discovered when he was arrested on or about January 4, 2002 by the New York Police Department in the Southern District of New York, and was ultimately convicted of criminal possession of a controlled substance in the seventh degree in Criminal Court, Bronx County. (Gov. Opp. at 2-3.) On or about March 26, 2002, Defendant was indicted in the present case on one count of illegal reentry after removal subsequent to conviction for commission of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). (Gov. Opp. at 3.)

Defendant's motion to dismiss is a collateral challenge to the legality of his original deportation arguing that a) Immigration Judge Levinsky improperly caused Defendant to lose his right to request § 212(c) relief from deportation by advising Defendant that Defendant was ineligible to pursue such relief following the 1996 change in law; b) Judge Levinsky incorrectly advised Defendant, acting pro se, that if he appealed the order of deportation, he would be ineligible for New York's state program granting aliens in prison early release for deportation; c) Defendant relied on Judge Levinsky's invalid advice and decided to forgo his appeal and any § 212(c) relief in order to be eligible for early release; and d) pursuant to a subsequent Supreme Court decision, Judge Levinsky's interpretation of the 1996 change in law was incorrect in that Defendant would have been eligible for a § 212(c) relief from deportation and would have received it.


A. The Standards Applicable For Collateral Attack

8 U.S.C. § 1326(d) defines the limitations on a collateral attack on a deportation order, and states in relevant part:

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order . . . unless the alien demonstrates that —
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the ...

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