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U.S. v. COTTONE
February 14, 2003
UNITED STATES OF AMERICA
NICOLO COTTONE, DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court is a motion by Nicolo Cottone ("Cottone" or
the "defendant") to dismiss an indictment charging him with illegal
reentry after deportation subsequent to a conviction for commission of an
Cottone was born in Italy and emigrated to the United States in 1970
when he was 16 years old. The defendant's ex-wife and his adult children
are United States citizens. Although Cottone never became a naturalized
citizen, he was a legal resident of the United States.
On February 11, 1993, the defendant pled guilty to Robbery in the
Second Degree, in violation of New York Penal Law § 160.10, and was
sentenced to an indeterminate term of three to nine years in prison. On
July 14, 1995, the defendant was paroled to the United States Immigration
and Naturalization Service ("INS"). The defendant was detained by the
INS until he posted bail for his release. On March 4, 1997, an
Immigration Judge ("IJ") ordered that the defendant be deported to
Italy. Because of the defendant's robbery conviction and his two prior
narcotics convictions, the IJ found that Cottone was deportable as an
aggravated felon and held that the Anti-Terrorism and Effective Death
Penalty Act of 1996 ("AEDPA") precluded him from being considered for
discretionary relief under Section 212 of the Immigration and
Naturalization Act ("INA").
On March 24, 1997, the defendant filed an appeal to the Board of
Immigration ("BIA"). On February 3, 1998, the BIA dismissed the appeal
holding that AEDPA precluded him from being eligible for discretionary
relief under Section 212(c) and that he was deportable. In an
affirmation dated November 20, 2002, Edward Cuccia, the attorney who
represented the defendant during his deportation proceedings, stated that
the BIA decision was forwarded to him and that he then mailed a copy of
the decision to the defendant's home address. Mr. Cuccia also stated
that his law firm placed a telephone call to the defendant.
Nevertheless, Mr. Cuccia asserts that his files do not indicate that
Cottone received the decision.
On May 5, 1998, Cottone began serving a 90 day sentence in the Nassau
County Correctional Facility for petit larceny. On June 6, 1998, the INS
issued a deportation warrant for the defendant. On July 17, 1998, the
INS lodged a detainer with the Nassau County Correctional Facility.
After serving his 90-day sentence on the attempted petit larceny
charge, the defendant began serving a separate sentence for a parole
violation. On November 16, 1998, Cottone was mandated to the Willard
Drug Treatment Center. On December 29, 1998, INS lodged a detainer with
On March 9, 1999, the defendant was released from Willard, and INS took
him into custody for deportation. Twenty days later on March 29, 1999,
Cottone was deported to Italy pursuant to the IJ's March 4, 1997 order.
The defendant did not challenge the BIA's denial of his appeal.
Section 1326(a) makes it a crime for an alien who has been deported or
removed to enter, attempt to enter, or be found in the United States
without the express consent of the Attorney General.
8 U.S.C. § 1326(a). Because a prior deportation is an element of
this crime, a defendant charged pursuant to Section 1326(a) may
collaterally attack the validity of a prior deportation order and
proceedings. United States v. Mendoza-Lopez, 481 U.S. 828, 837-39,
107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); United States v. Gonzalez-Roque,
301 F.3d 39, 45 (2d Cir. 2002).
To challenge a deportation order, the defendant must demonstrate that,
(1) he 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 him of the opportunity for
judicial review; and (3) the entry of the order was fundamentally
unfair. 8 U.S.C. § 1326(d). Because these requirements are
conjunctive, the ...
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