Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. COTTONE

February 14, 2003

UNITED STATES OF AMERICA
V.
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 aggravated felony.

I. BACKGROUND

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 Willard.
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.

II. DISCUSSION

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. ยง 1326(d). Because these requirements are conjunctive, the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.