The opinion of the court was delivered by: Jack Weinstein, Senior District Judge
Defendant Jose Frias-Gomez was charged in a two count indictment with attempted illegal re-entry in violation of 8 U.S.C. § 1326(a) and (b)(2) and the use and attempted use of a false, forged, counterfeited, mutilated, and altered passport in violation of 18 U.S.C. § 1543. He moves to dismiss count 1 of the indictment, attempted illegal reentry, under Federal Rule of Criminal Procedure 12(b)(2) and the Fifth Amendment. The motion is granted. Mr. Frias-Gomez's prior deportation proceedings violated his due process rights by improperly denying him the opportunity to apply for discretionary relief from deportation. Those proceedings cannot be relied upon to establish the prior deportation or removal necessary to sustain a charge of attempted illegal re-entry. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987); see also United States v. Gonzalez-Roque, 301 F.3d 39, 45 (2d Cir. 2002).
Jose Frias-Gomez is a citizen of the Dominican Republic. In August 1980, Mr. Frias-Gomez was issued a visa. He entered the United States in September of that year at the age of eleven as a lawful permanent resident. His father, step-mother, three full siblings, three paternal half siblings, and one maternal half sibling all currently reside and work in or near Trenton, New Jersey. His mother, before her death from cancer in 1987, had also lived in Trenton for fourteen years.
On October 22, 1993, Mr. Frias-Gomez was convicted after a jury trial in Mercer County Superior Court in New Jersey of possession of a controlled substance with intent to distribute it on or near school property in the third degree in violation of N.J. Stat. Ann. §§ 2C:35-7, 2C35-5a(a) and 5b(3); Exhibit A to Government's Appendix in Support of Memorandum of Law in Opposition to Defendant's Motion to Dismiss the Indictment ("Government's Memorandum"). He was sentenced to a term of four years in prison.
In December 1995 the Immigration and Naturalization Service ("INS") issued an Order to Show Cause initiating deportation proceedings against Mr. Frias-Gomez on the charge that he was deportable pursuant to Immigration and Nationality Act ("INA" or "the Act") section 241(a)(2)(B)(i) (convicted of violation of a law relating to a controlled substance) and INA section 241(a)(2)(A) (convicted of an aggravated felony). See Exhibit B to Government's Memorandum. This Order to Show Cause was served on Mr. Frias-Gomez on January 4, 1996. See id.; Exhibit C to Government's Memorandum at 1-2.
After completing his term of imprisonment, Mr. Frias-Gomez was transferred to the custody of the INS. A hearing on the merits of the deportation proceedings against him was held on April 22, 1997. Mr. Frias-Gomez through counsel applied for discretionary relief from deportation under former section 212(c) of the Immigration and Nationality Act ("INA"). See 8 U.S.C. § 1182(c). The Immigration Judge, while expressing thoughtful concern at numerous points during this hearing and prior bond hearings over the applicability of the amendments in the Antiterrorism and Effective Death Penalty Act ("AEDPA") and the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") to Mr. Frias-Gomez, ultimately found that the hands of the immigration court were tied by the clearly stated position of the Department of Justice that AEDPA and IIRIRA's elimination of section 212(c) relief was retroactive. See Exhibits C, D, E. and F; see also Office of Legal Counsel, United States Department of Justice, Authority of the Attorney General to Grant Discretionary Relief from Deportation under Section 212(c) of the Immigration and Nationality Act (Feb. 21, 1997) (reversing the position taken by the BIA in Matter of Soriano, 21 1. & N. Dec. 516 (BIA 1996), that the bar to section 212(c) relief applied only to applications filed after the date of enactment of the amendments).
Mr. Frias-Gomez was found not eligible to apply for 212(c) relief and was ordered removed to the Dominican Republic. His right to appeal was reserved, and the Immigration Judge explained that an appeal must be filed with the Board of Immigration Appeals within thirty days, that is, by May 21, 1997. See Exhibits E, F to Government's Memorandum (There is what appears to be an error in the transcript, Exhibit E to the Government's Memorandum, at p. 4. It says first that Mr. Frias-Gomez has until May 21 to file an appeal, but later refers to the date of April 21. Since the hearing was being held on April 22, April 21 cannot possibly be the correct date.) On May 9, 1997, over a week before that deadline, Mr. Frias-Gomez was deported. See Exhibit G to Government's Memorandum.
On October 27, 2002, Mr. Frias-Gomez attempted to re-enter the country through John F. Kennedy International Airport. He presented a passport bearing the name "Sidney Preston Bradsher, Jr." and his own photograph to inspectors from INS. INS identified the passport as lost or stolen, and identified Mr. Frias-Gomez through his fingerprints.
Mr. Frias-Gomez pled guilty before a Magistrate Judge to count 1 of the indictment, attempted illegal reentry, but that plea has not yet been accepted by the court.
A. Illegal Reentry and Collateral Attack
Section 1326(a) of Title 8 of the United States Code makes it a crime for a deported or removed non-citizen to enter, attempt to enter, or be found in the United States without the express consent of the Attorney General. Deportation proceedings are not valid and cannot be used to establish a prior order of deportation for purposes of a criminal prosecution for illegal reentry if the proceedings failed to afford the non-citizen due process of law. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-39, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987) ("Even with this safeguard, the use of the result of an administrative proceeding to establish an element of a criminal offense is troubling."); see also United States v. Gonzalez-Roque, 301 F.3d 39, 45 (2d Cir. 2002). A non-citizen charged with a ...