The opinion of the court was delivered by: David Trager, District Judge
Defendant Richard Garcia-Jurado ("Garcia-Jurado") is charged in a single-count indictment with illegally reentering the United States after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and § 1326(b)(2). Garcia-Jurado now moves to dismiss the indictment pursuant to Rule 12(b)(2) of the Federal Rules of Criminal Procedure and the Fifth Amendment, arguing that the underlying deportation was unlawful because he was improperly denied an opportunity to seek discretionary relief under § 212(c) of the Immigration and Naturalization Act ("INA").
Garcia-Jurado was born in Colombia on November 19, 1971. (Colson Aff. ¶ 4.) At the age of sixteen, he came to the United States as a legal permanent resident. (Id.) Garcia-Jurado's mother filed the petition on his behalf. (Id.) Garcia-Jurado's mother was a legal permanent resident at the time; she subsequently became a United States citizen in 1992. (Id.) Upon arrival, Garcia-Jurado lived with his mother, stepfather and half-sister. (Id. ¶ 5.) Both his stepfather and half-sister are United States citizens. (Id.) Shortly after his arrival, Garcia-Jurado's brother and [ Page 2]
older sister also emigrated to the United States as legal permanent residents. (Id. ¶ 6.) His older sister is now a United States citizen. (Id.)
Garcia-Jurado attended high school in the United States. (Id. ¶ 7.) He was also employed for a time in 1990 by a cleaning company in Westchester County, New York. (Id. ¶ 9.) Also in 1990, Garcia-Jurado began a long-term relationship with Maryiory Alzate, a legal permanent resident, with whom Garcia-Jurado had a daughter in August 1992.
On December 13, 1993, Garcia-Jurado pled guilty in Queens County Supreme Court to Criminal Possession of a Controlled Substance in the Third Degree. (Id. ¶ 10.) He was sentenced to four to twelve years in state prison. (Id.) In prison, he completed his GED and received two vocational training certificates. (Id.) In late 1995, the INS initiated deportation proceedings against Garcia-Jurado, charging him as deportable as a result of his 1993 conviction. (Id. ¶ 11.)
Garcia-Jurado was transferred to INS custody in February 1997, upon the completion of his state sentence. (Id. ¶ 16.) On March 31, 1997, he was released on a $15,000 bond pending the resolution of the deportation proceedings. (Id.) While out on bond, Garcia-Jurado worked as a machine operator for a company in Ossining, New York. (Id.) His bond remained in effect until he presented himself, as instructed, to the INS immediately prior to his deportation. (Id. ¶ 17.)
In an effort to avoid deportation, Garcia-Jurado's retained Glenn Bank, Esq. ("Bank"), who represented him throughout the deportation process. (Id. ¶ 12.) Bank sent a letter to the INS on February 13, 1996 (prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996*fn1 ("AEDPA")) requesting a hearing before an immigration judge in Fishkill, New York. (Id. ¶ 12; Id., Ex. J, at 6.) The hearing was held on July 23, 1996. At the hearing, Garcia-Jurado [ Page 3]
did not challenge his deportability, but indicated that he intended to apply for § 212(c) relief. (Id. ¶ 13.)
However, the immigration judge, in a written opinion, "pretermitted" the application for discretionary relief, finding that § 212(c) relief was not available to Garcia-Jurado. (Id. ¶ 14, Ex. K, at 2) The immigration judge cited the then recently-enacted AEDPA, as well as an Attorney General's ruling that AEDPA applied to all convictions and guilty pleas entered prior to the enactment of AEDPA regardless of whether the application for discretionary relief was pending when AEDPA was enacted.*fn2 (Id.)
Garcia-Jurado timely appealed to the Board of Immigration Appeals ("BIA"), and on July 2, 1997, the BIA dismissed Garcia-Jurado's appeal on the ground that he was ineligible for § 212(c) relief under AEDPA. (Id. ¶ 15, Ex. M.) Garcia-Jurado then filed a motion to reconsider before the BIA, which was opposed by the government. (Id., Ex. N.) On October 16, 1997, while the motion for reconsideration was still pending before the BIA, Garcia-Jurado submitted himself to INS custody as he was instructed. Garcia-Jurado then filed a request for an emergency stay of deportation, which was denied. (Bank Aff. ¶ 4.) On October 22, 1997, six days after presenting himself to the INS, he was deported to Colombia. (Colson Aff. ¶ 17.) On March 25, 1998, the BIA ordered that the motion to reconsider be withdrawn "by operation of law" because Garcia-Jurado had been deported. (Id. ¶ 18, Ex. U.) [ Page 4]
On June 13, 2002, Garcia-Jurado was arrested in Queens, New York, for Criminal Possession of Marijuana. (Gov.'s Mem. at 3.) The INS interviewed Garcia-Jurado at the Rikers Island detention facility and determined that he had previously been deported. (Id.) The challenged indictment followed.
This case requires the untying of yet another legal knot that was formed in the wake of the enactment of AEDPA and the Illegal Immigration Reform and Immigration Responsibility Act ("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009-546 et. seq. (1996). Under the immigration laws, an alien that is convicted of certain crimes — known as aggravated felonies — is deportable. See United States v. Copeland, 228 F. Supp.2d 267, 270 (E.D.N.Y. 2002) (Weinstein, J.) (citing 8 U.S.C. § 1227(a)(2)(A)(iii)). Prior to April 24, 1996, legal permanent residents who were deportable were, nonetheless, entitled to apply for a discretionary waiver of deportation, unless they had been "convicted of one or more aggravated felonies and ha[d] served for such felony or felonies a term of imprisonment of at least five years." INA § 212(c); 8 U.S.C. § 1182(c) (repealed) (1994). (Under that statutory scheme, Garcia-Jurado would have been eligible for discretionary relief.) Whether to actually grant such a discretionary waiver — commonly referred to as § 212(c) relief — requires the balancing of "the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf[.]" United States v. Perez, 330 F.3d 97, 102 (2d Cir. 2003) (internal quotation marks omitted). [ Page 5]
This scheme was significantly altered when congress enacted AEDPA on April 24, 1996. Section 440(d) of that legislation eliminated § 212(c) hearings for aliens convicted of certain crimes, including that committed by Garcia-Jurado. See AEDPA § 440(d)(2). On September 30, 1996, Congress enacted IIRIRA, which repealed § 212(c) altogether and replaced it with a different and narrower form of discretionary relief called cancellation of removal. See IIRIRA § 304(b).
For several years after these enactments, the law was unclear as to whether and how AEDPA and IIRIRA applied to pre-enactment convictions and guilty pleas. See St. Cyr v. I.N.S., 229 F.3d 406, 416 n. 6 (2d Cir. 2000) (holding that "IIRIRA § 304 does not apply retroactively to pre-enactment guilty pleas"); id. at 417 (listing divided circuit courts that dealt with analogous question of AEDPA's application to pre-enactment guilty pleas). The issue was finally settled by the Supreme Court in 2001, when it held in I.N.S. v. St. Cyr 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. 289, 326, 121 S.Ct. 2271, 2293 (2001), aff'g, 229 F.3d 406 (2d Cir. 2000).
A second source of confusion was the elimination of judicial review under IIRIRA of deportation proceedings for aliens convicted of aggravated crimes.*fn3 Although direct judicial [ Page 6]
appeal had clearly been eliminated by IIRIRA, it was initially unclear whether habeas review of deportation proceedings survived IIRIRA. The Second Circuit later indicated in 1998 that IIRIRA did not strip the courts' habeas jurisdiction. See Jean-Baptiste v. Reno, 144 F.3d 212, 219 (2d Cir. 1998). However, at the time — and for a while later as well — the answer was very much in doubt. See Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 480 n. 7, 119 S.Ct. 936, 942 n. 7 (1999) (noting that "[t]here is disagreement" as to whether habeas review is still available under IIRIRA and listing circuit court cases). Indeed, the issue was not conclusively settled until the Supreme Court's contemporaneous rulings in St. Cyr, 533 U.S. at 314, 121 S.Ct. at 2287, and Calcano-Martinez v. I.N.S., 533 U.S. 348, 351, 121 S.Ct. 2268, 2270 (2001) (holding that "the jurisdiction-stripping provisions of [IIRIRA do not] preclude aliens such . . . from pursuing habeas relief pursuant to § 2241"), aff'g, 232 F.3d 328 (2d Cir. 2000).
The government and Garcia-Jurado agree that under the current interpretation of AEDPA and IIRIRA, Garcia-Jurado would have been eligible for § 212(c) relief. The parties also agree that habeas review would have been available as well. However, at the time of Garcia-Jurado's deportation, neither the Supreme Court nor the Second Circuit had ruled on these issues.
"Since a prior deportation order is an element of [illegal reentry], a defendant charged under section 1326(a) may collaterally attack the validity of a prior deportation order and proceedings." United States v. Calderon, 2003 WL 1338943, at *4 (E.D.N.Y. Jan. 9, 2003) (Weinstein, J.) (citations omitted); see United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 2155 (1987) (allowing collateral attacks on the underlying deportation in illegal reentry charges). In Mendoza-Lopez, the Supreme Court held that it would be a violation of due process to allow the imposition of "a criminal penalty for reentry after any deportation, regardless [ Page 7]
of how violative of the rights of the alien the deportation proceeding may have been." 481 U.S. at 837, 107 S.Ct. at 2155. The Supreme Court affirmed an Eighth Circuit decision, which held that an alien's uninformed waiver of his rights to appeal or seek a suspension of deportation rendered the deportation fundamentally unfair and that such a deportation can be collaterally attacked in an illegal reentry charge. See id. at 832, 107 S.Ct. at 2152. Mendoza-Lopez reviewed solely the question of whether the deportation can ever be collaterally attacked — assuming, at the request of the government — that the deportation proceedings the aliens complained of were indeed "fundamentally unfair." 481 U.S. at 839-40, 107 S.Ct. at 2156.
The Supreme Court held that "where a determination made in an administrative proceeding is to play a critical role in the subsequent imposition of a criminal sanction, there must be some meaningful review of the administrative proceeding." Id. at 837-38, 107 S.Ct. at 2155. "[A]t a minimum, the result of an administrative proceeding may not be used as a conclusive element of a criminal offense where the judicial review that legitimated such a practice in the first instance has effectively been denied." Id. at 838 n. 15, 107 S.Ct. at 2155 n. 15.*fn4 In addition to showing deprivation of judicial review, the courts required a showing "that the deportation hearing was fundamentally unfair. . . . In other words, . . . that he was prejudiced." United States v. Espinoza-Farlo, 34 F.3d 469, ...