United States District Court, E.D. New York
May 4, 2005.
UNITED STATES OF AMERICA,
RICHARD COPELAND, Defendant.
The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
MEMORANDUM, JUDGMENT AND ORDER
This case raises the issue of how a district court can
determine whether the fact that a deportee was denied due process
in deportation hearings prejudiced him i.e., whether the
result would not have been deportation if no constitutional
violation had occurred. As indicated below, see infra Part
III.F.3.c., a readily applied and probably fairer test would
require the defendant to prove only that his deportation resulted
from a due process denial serious enough to make "the entry of
the [deportation] order . . . fundamentally unfair."
8 U.S.C. § 1326(d)(3).
The rule of law adopted by the United States Court of Appeals
for the Second Circuit requires the district court to undertake
the highly speculative task of determining whether, absent the
constitutional violation, the immigration judge would have
ordered the defendant deported. In effect, this enterprise
necessitates a present reconstruction of a hypothetical
deportation hearing in 1996. It requires the court to accurately
predict, in the deportation context, what would have happened at
another time, in another place, with different lawyers, and
before another unknown judge, using variable and subjective
An indictment charging Richard Copeland with illegal reentry
into the United States was dismissed by this court based on a
finding that the underlying prior ordered deportation was not
consistent with due process. See United States v. Copeland,
228 F. Supp. 2d 267 (E.D.N.Y. 2002). Though the United States Court
of Appeals for the Second Circuit was in agreement that due
process had been denied, it nevertheless vacated dismissal of the
indictment. See United States v. Copeland, 376 F.3d 61, 75 (2d
Cir. 2004). Concluding that the law required both denial of due
process and a showing of prejudice before the dismissal of an
illegal re-entry indictment, the Court of Appeals remanded the case to the district court for
an evidentiary hearing and findings on the question of whether
the fundamental procedural error in the defendant's deportation
hearing had been prejudicial.
The court conducted a full evidentiary hearing. It finds that
the defendant was not "prejudiced." The decision is based on a
determination, by a standard of clear, unequivocal and convincing
evidence 80% or more probability that had the section 212(c)
hearing and administrative appeal before deportation been
properly conducted by an immigration judge, the defendant would
have been ordered deported. Accordingly, the indictment is
A. Family History
The defendant is a citizen of Jamaica. He was born on November
11, 1969. On July 21, 1982, when he was twelve years old, he
entered the United States as a lawful permanent resident. His
grandmother, a naturalized citizen, had adopted the defendant in
1978, and it was through her petition that the defendant was able
to enter the country legally. He left only distant relatives in
Jamaica and did not return there until 1998, upon his deportation
at the age of 27. At the time of deportation, he resided in this
country with his two children, Richard Copeland Jr. and Tyler
Brown, then ages 11 and 4, and their mother, Monique Brown. The
children and mother are United States citizens.
B. Criminal Conduct
The defendant was convicted of four New York state crimes prior
to his deportation: (1) disorderly conduct; (2) attempted
criminal sale of a controlled substance in the third degree; (3)
criminal possession of a weapon in the third degree; and (4)
criminal possession of a weapon in the second degree. He was sentenced to three days imprisonment
for the disorderly conduct conviction. He served the sentences
for the three other crimes concurrently, from October 13, 1995 to
September 23, 1998 just under three years.
The convictions themselves do not adequately reflect the
severity of the criminal activity. A more thorough chronology is
required to place the crimes in context. It was not uncommon for
immigration judges to conduct similar inquiries in assessing
section 212(c) applications; they were authorized to go behind
records of conviction to ascertain the underlying facts. See,
e.g., Matter of Roberts, 20 I. & N. Dec. 294, 301 (BIA 1991)
("[I]nquiry may be had into the circumstances surrounding the
commission of the crime in order to determine whether a favorable
exercise of discretion is warranted [.] [I]t is impermissible
[however] to go behind a record of conviction to reassess an
alien's ultimate guilt or innocence.").
On May 18, 1988, within six years of his admission into the
United States, the defendant was arrested for grand larceny of a
car, criminal possession of stolen property, and unauthorized use
of a vehicle. At the time of his arrest, the defendant provided a
social security number belonging to an unrelated individual
residing in Buffalo. On September 16, 1988, having failed to
appear for a scheduled court proceeding, a bench warrant was
issued for his arrest. The defendant ultimately pled guilty to
disorderly conduct, following his arrest on March 22, 1989.
A March 22, 1989 arrest was for criminal possession of a
controlled substance and illegal possession of a firearm. The
defendant again provided a false social security number. He also
indicated that he was born in Trinidad and Tobago. The social
security number provided by the defendant in that instance
belonged to a woman residing in Brooklyn. When the defendant
again failed to appear on the date set by the court, another
warrant was issued for his arrest. On February 9, 1993, the defendant was arrested and indicted on
multiple counts related to the criminal sale and possession of
controlled substances. At the time of his arrest, Richard
Copeland indicated that his name was Rohan Brown, thereby
avoiding detection as a fugitive on the March 1989 charges. At an
evidentiary hearing before this court, defendant testified that
he received probation, was told to report to the probation
officer, but never did so out of concern that the probation
officer would discover the outstanding warrant for his 1989
arrest. See Mar. 24, 2005 Hrg. Tr. at 84. As a result, another
bench warrant was issued.
On September 16, 1995, the defendant was arrested for attempted
murder, first degree attempted robbery, first and fourth degree
assault, and criminal possession of a weapon in the second and
third degrees. The conduct underlying the arrest involved serious
violence. The defendant pulled a man from a car at gunpoint,
demanded money, and shot him in the throat when he made an effort
to escape. The victim was paralyzed as a result of the shot. At
the time of his arrest, Richard Copeland indicated that his name
was Richard Hyatt, and falsely claimed to be a United States
Following his fourth arrest, the state sought convictions for
the charges which he had evaded while a fugitive for more than
six and one-half years. On October 13, 1995, the defendant pled
guilty to criminal possession of a weapon in the third degree,
based on his March 22, 1989 arrest. He was sentenced to a year in
prison. On October 16, 1995, he pled guilty to attempted criminal
sale of a controlled substance in the third degree, based on his
1993 arrest, and was sentenced to one year. On October 27, 1995,
the defendant pled guilty to criminal possession of a weapon in
the second degree, relating to his arrest for the September 16,
1995 shooting. He was sentenced to 1½ to 4½ years in prison.
Copeland served his three felony sentences concurrently; all resulted from guilty pleas.
C. Deportation Hearings and Deportation
While the defendant was incarcerated, the INS initiated
deportation proceedings based on his conviction for the February
9, 1993 attempted criminal sale of a controlled substance. A
hearing was conducted before an Immigration Judge ("IJ") on
August 7 and November 27, 1996. At the August hearing, the IJ
informed the defendant that he had a right to an attorney and
that he was entitled to appeal any decision by the IJ within 30
days of a decision. The IJ also told the defendant that because
he was an alien, he would be deportable if the INS proved that he
had been convicted of attempted sale of a controlled substance.
The IJ stated that "[u]nder current law there is no waiver for
deportability if you're, [sic] had been convicted of, of
violation of a controlled substance law," because "the law
changed April 1996 a couple a months ago . . . and the new law
says if you have a conviction for narcotics you're not eligible
for any form of relief."
The defendant apparently attempted to ask whether the date of
his conviction would have an effect on his eligibility for a
waiver of deportation by suggesting that he had committed the
crimes and had been convicted before adoption of the new
COPELAND: So, so that law it, it all depends umm . . .
if it was before April 19 . . .
JUDGE: It doesn't depend on when the crime was
com . . .
JUDGE: No! No! Goes by whether . . . if you
have . . .
COPELAND: . . . (unintelligible) . . . what's in your
JUDGE: Right. Alright, that's what the law says now.
As if and it says that. Okay? But speak to lawyers
about it. . . . The IJ then adjourned the hearing for three months to give the
defendant time to find an attorney.
When the hearing resumed on November 27, 1996, the defendant
again appeared pro se. He admitted that he was not a citizen of
the United States, that he was a citizen of Jamaica, and that he
had been convicted of an attempted criminal sale of a controlled
substance on September 27, 1993. The IJ found the defendant
"deportable from the United States as charged." The following
colloquy then occurred:
JUDGE: There's no relief available to you anymore
because the law changed in April. And the new law
said that if you have a conviction for a controlled
substances [sic] you're deportable and there's no
relief. So I feel I have no alternative but to order
you deported to Jamaica. You could accept this
decision as a final decision or you can appeal my
decision. Which do you prefer to do?
COPELAND: I will accept this decision.
The defendant did not file an appeal with the Board of
Immigration Appeals ("BIA") within the 30 day time limit. He
remained in the United States because of his incarceration.
The "new law" referred to by the IJ was actually two laws: the
Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"),
Pub.L. No. 104-132, 110 Stat. 1214, enacted on April 24, 1996,
and the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009-546,
enacted on September 30, 1996 (collectively, "the 1996
Amendments"), which amended the Immigration and Nationality Act
("INA"), 66 Stat. 163, as amended, 8 U.S.C. § 1101 et seq.
Prior to these amendments, the Attorney General had broad
discretion to cancel deportation orders for aliens who met
certain residence requirements and had not served five years in prison for an aggravated felony. (Recall that defendant
served considerably less than five years in total.) See
8 U.S.C. § 1182(c) (repealed 1996); INS v. St. Cyr, 533 U.S. 289,
296-97 (2001). AEDPA amended section 1182(c) to render aliens who
pled guilty to aggravated felonies ineligible for section 212(c)
discretionary relief from deportation. See AEDPA § 440(d).
IIRIRA then repealed section 212(c), see IIRIRA § 304(b),
replacing it with a new section granting the Attorney General
authority to cancel removal only for a narrowly defined class of
inadmissible or deportable aliens, not including persons
"convicted of any aggravated felony." Id.
At the time of the defendant's deportation hearing, the BIA's
position was that the 1996 Amendments applied retroactively to
non-citizens, like him, who, prior to their enactment, had pled
guilty to aggravated felonies. See In re Soriano, 21 I. & N.
Dec. 516, 534, 1996 WL 426888 (BIA June 27, 1996), vacated on
other grounds, 1997 WL 33347804 (Op. Atty Gen. Feb. 21, 1997).
The IJ's statement to the defendant that new laws had rendered
him ineligible for relief was based on Soriano.
During 1997 and 1998, however, several courts in this
circuit and elsewhere ruled that Section 440(d) could
not be applied retroactively in Copeland's
circumstances. The Supreme Court eventually agreed,
holding that Section 440(d) could not be applied
retroactively to aliens who pled guilty to crimes
prior to 1996 that made them ineligible for Section
212(c) relief under the 1996 Amendments.
United States v. Copeland, 376 F.3d 61 (2d Cir. 2004)
D. Motion to Reopen
On September 22, 1998, following his deportation hearing, but
before the St. Cyr decision, the defendant filed a motion to
reopen the proceedings and for a stay of deportation under
section 212(c). He based his motion in part on the argument that
the IJ had breached his obligation, under section 242.17(a) of Title 8 of the Code of
Federal Regulations, to inform him of his eligibility for section
212(c) relief. The same IJ denied the defendant's motion to
reopen on the ground that, although section 212(c) relief
remained available to aliens whose deportation proceedings began
prior to the passage of AEDPA, the defendant was ineligible for
section 212(c) relief because his deportation proceedings began
after its passage.
The defendant appealed the IJ's decision to the BIA on October
6, 1998. He argued that he was eligible for section 212(c)
relief. On November 23, 1998, before the BIA had considered his
appeal, he was deported to Jamaica. On May 25, 1999, the BIA
dismissed the defendant's appeal as moot under section 3.6(b) of
Title 8 of the Code of Federal Regulations because he had already
E. Reentry into the United States and Charge of Illegal Reentry
The defendant reentered the United States by February 22, 1999,
at the latest. On December 1, 2001, he was arrested. He was
indicted for illegal reentry. 8 U.S.C. §§ 1326(a), (b)(2);
18 U.S.C. § 3551 et seq. On March 27, 2002, the defendant moved to
dismiss the indictment on the grounds that his deportation order,
an element of the crime of illegal reentry, was invalid.
F. Decision by District Court on Motion to Dismiss Indictment
At a hearing before this court, the defendant argued that he
was inaccurately advised of his right to appeal when the IJ
incorrectly told him that no relief was available because of the
1996 Amendments. The district court scheduled another hearing to
determine whether the defendant "really didn't appreciate that he
had a right to appeal[,] having been overborne" by the IJ. At
that hearing, the court listened to tapes of the defendant's
deportation hearings, heard testimony from an INS agent about the defendant's criminal
history, and inquired about defendant's age and education at the
time of his deportation hearing. The court found that the
defendant's will was not overborne and that he made a rational
decision not to appeal based upon the advice he had then
received, even though it ultimately turned out to be incorrect.
The court also found that the IJ effectively indicated to the
defendant that an appeal would be futile, and that the defendant
rationally decided not to waste his effort by appealing.
The district court dismissed the indictment on the ground that
the underlying deportation order violated the defendant's due
process rights and therefore could not be the basis for the prior
deportation element in the illegal reentry charge. United States
v. Copeland, 228 F. Supp. 2d 267, 272 (E.D.N.Y. 2002). It noted
that, under section 1326(d), a deportation order could be
collaterally challenged in an illegal reentry case if the
non-citizen defendant: (1) exhausted administrative remedies; (2)
was deprived of the opportunity for judicial review; and (3)
showed that the proceeding was fundamentally unfair. Id. at 270
(citing 8 U.S.C. § 1326(d)). The defendant was deemed to have
satisfied the exhaustion requirement based on the conclusion
that, though he had not appealed to the BIA, any attempt to do so
would have been futile, given the then-current BIA interpretation
of AEDPA. Id. at 271. The court concluded that the defendant
was denied judicial review because the applicable transitional
rules of the IIRIRA barred direct judicial review of deportation
orders against aliens deported for narcotics offenses. Id.
Finally, the defendant's deportation order was found to be
"fundamentally unfair" because the IJ "not only failed to advise
the defendant of the existence of discretionary relief, but
affirmatively misled him by indicating he was ineligible for such
relief." Id. at 271-72. The court concluded that this
unfairness was prejudicial to the defendant because there was a
"reasonable likelihood" that he would have been granted section 212(c) relief. Id.
Finding that the requirements of section 1326(d) were satisfied,
this court dismissed the indictment.
G. Government's Appeal from Dismissal and Remand
1. Court of Appeals Decision
a. Section 1326(d)(1): Exhaustion of Administrative Remedies
The district court had found that since an appeal to the BIA
would have been futile in light of Soriano, the defendant had
sufficiently fulfilled the exhaustion requirement of section
1326(d)(1). The Court of Appeals for the Second Circuit noted
that it had since held that there is no futility exception, with
one minor qualification, to statutory exhaustion requirements.
Copeland, 376 F.3d at 66. It concluded, however, that under its
caselaw, the motion to reopen the deportation hearing and the
defendant's appeal from the denial of that motion satisfied the
exhaustion requirement of section 1326(d). Id. at 67.
b. Section 1326(d)(2): Denial of Judicial Review
The Court of Appeals agreed with the district court that under
section 1326(d)(2) the defendant was required to demonstrate that
he was denied an opportunity for judicial review. The district
court had determined that the defendant was denied judicial
review because the applicable transitional rules of IIRIRA barred
direct judicial review of deportation orders against aliens
deported for narcotics offenses. The Court of Appeals noted that
the defendant nevertheless may have had the right to seek
judicial relief "by way of habeas corpus." Id. at 68.
It ultimately concluded that where habeas review is potentially
available, an opportunity for judicial review will still be
deemed to have been denied where the interval between entry of
the final deportation order and the physical deportation is too
brief to afford a realistic possibility of filing a habeas petition. See id. at 69. It reasoned that
where no realistic opportunity for judicial review by way of
habeas review existed, an alien's failure to seek such review
should not be deemed to preclude a collateral attack on a
deportation order under section 1326(d)(2). The appellate court
concluded that "[i]n the present case, Copeland had no realistic
opportunity for habeas review not only because of the lack of
time but also because of the legal uncertainties as to the
availability of habeas review." Copeland, 376 F.3d at 69. It
held that "Copeland's resort to administrative remedies was not
unreasonable" and that "his opportunity for habeas review was not
sufficiently realistic to bar him from challenging the validity
of the deportation order." Id. at 70.
c. Section 1326(d)(3): Fundamental Unfairness
The Court of Appeals ruled that a failure to advise a potential
deportee of a right to seek section 212(c) relief can, if
prejudicial, be fundamentally unfair within the meaning of
section 1326(d)(3). Copeland, 376 F.3d at 71. It stated that
"[p]rejudice is shown where `defects in the deportation
proceedings may well have resulted in a deportation that would
not otherwise have occurred.'" Id. at 73 (citing United States
v. Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002)). The
court stated that the defendant would have to "show that he
likely would have been granted Section 212(c) relief if he had
obtained a hearing." 376 F.3d at 73. Vacating the dismissal of
the defendant's indictment and remanding to the district court
for an evidentiary hearing to determine "prejudice" to the
deportee, the Court of Appeals declared:
Because the parties to the present matter could not
have anticipated the precise nature of our decision,
it would not be appropriate for us to review the
district court's finding of prejudice on the present
record. Specifically, although the record includes
comprehensive evidence of Copeland's criminal
history, there is little detail about Copeland's family relationships or other potentially
favorable considerations. Such evidence would be
essential to any finding that Copeland was prejudiced
by the lack of a Section 212(c) hearing, given the
fact that Copeland's criminal record is quite
serious. . . . We therefore remand for findings
based on a full record supplemented if necessary by
an evidentiary hearing on the question of whether
Copeland was prejudiced by the IJ's failure to advise
him of his right to seek 212(c) relief.
376 F.3d at 61 (emphasis added).
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 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 if the proceedings failed to afford the
non-citizen due process of law. See United States v.
Mendoza-Lopez, 481 U.S. 828, 839 n. 15 (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
A non-citizen charged with a violation of section 1326 may
collaterally attack the validity of a prior deportation order
since it is a necessary element of the charged criminal offense.
See 8 U.S.C. § 1326(d). Such a collateral challenge can be
1) the alien exhausted any administrative remedies
that may have been available to seek relief against
2) the deportation proceedings at which the order was
issued improperly deprived the alien of the
opportunity for judicial review; and
3) the entry of the order was fundamentally unfair. See id. As previously noted, the Court of Appeals held that the
defendant satisfied prong one of section 1326(d) by moving to
reopen his deportation hearing and appealing the denial of that
motion. See 376 F.3d at 67. It held that the defendant
satisfied prong two by resorting to administrative remedies,
where his opportunity for habeas review was not sufficiently
realistic to bar him from challenging the validity of the
deportation order. Id. at 70. The section 1326 question before
the court on remand concerns only the third prong, whether the
entry of the order was fundamentally unfair and prejudicial.
B. Fundamental Unfairness of Entry of Deportation Order
1. Standard for Prejudice
An alien attempting to demonstrate on collateral review "that
his [deportation] hearing was so fundamentally unfair that it
constituted a denial of his Fifth Amendment right to due process
. . . must show both a fundamental procedural error AND
prejudice resulting from that error." United States v.
Fernandez-Antonia, 278 F.3d 150, 159 (2d Cir. 2002) (emphasis
Prejudice is shown where "defects in the deportation
proceedings may well have resulted in a deportation that would
not otherwise have occurred." Id. (internal quotation marks and
citation omitted). To satisfy the standard the defendant "must
show that he likely would have been granted Section 212(c)
relief if he had obtained a hearing." Copeland, 376 F.3d at 73
(emphasis added). The Court of Appeals did not say what degree of
"likelihood," i.e. what probability, must be established. It
observed that "[w]e have not decided what level of proof is
required for a showing that an alien likely would not have been
removed, but we have flirted with two possible standards: a
`reasonable likelihood' and a `plausible showing.'" Id.
It concluded that prejudice is shown where there is a
"reasonable probability" that the deportation at issue would not have been ordered absent the error
In our view . . . the appropriate test for prejudice
is the one used to decide ineffective assistance of
counsel claims, namely, prejudice is shown where
"there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different," Strickland v.
Washington, 466 U.S. 668, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984). This analogy is close-fitting
because the denial of an opportunity to apply for
Section 212(c) relief will generally be the result
either of a lawyer having caused an eligible alien to
fail to apply, United States v. Perez, 330 F.3d 97,
104 (2d Cir. 2003), or of an IJ, owing special duties
to a pro se alien, having failed to give notice of
such an opportunity, . . . . In the latter case,
therefore, prejudice is shown where there is a
reasonable probability that, but for the IJ's
unprofessional errors, the alien would have been
granted Section 212(c) relief.
Id. (emphasis added). Subsequently, in United States v.
Scott, 394 F.3d 111
(2d Cir. 2005), the Court of Appeals
expanded Copeland's prejudice analysis by equating "reasonable
probability" with "a probability sufficient to undermine
confidence in the outcome."
Recently, in Copeland, we clarified that
"prejudice" in the context of § 1326(d) is shown
where there is a reasonable probability that, but
for counsel's unprofessional errors, the result of
the proceeding would have been different. As the
Supreme Court has defined it, a reasonable
probability is a probability sufficient to undermine
confidence in the outcome. Is there a "reasonable
probability" that [the defendant] would have received
a waiver of deportation [at a hearing for] § 212(c)
relief in 1996?
Id. at 118 (emphasis in original).
2. Quantifying Prejudice
Typically, courts have not quantified burdens of proof. See
J. MAGUIRE, J. CHADBOURN, J. MANSFIELD, ET AL., CASES AND
MATERIALS ON EVIDENCE 871-73 (6th ed. 1973) (collecting
literature on quantification of burdens of proof); RICHARD H.
GASKINS, BURDENS OF PROOF IN MODERN DISCOURSE 20 (1992)
(discussing implications of burdens of proof); TERENCE ANDERSON & WILLIAM TWINING, ANALYSIS OF EVIDENCE 338 (1991)
(correlating verbal and mathematical measures of certainty and
The term "reasonable probability" should be quantified to the
extent possible, given the difficulty of assessing what another
adjudicator would have done when applying complex and subjective
criteria. One of the most astute observers of problems of proof
has emphasized the importance of attempting to set standards of
probability in deciding whether fact-finding burdens have been
met. He wrote:
The possible frailty of the fact-finding process in
adjudication is an important and complex problem. It
threatens to corrode public confidence in a vital
part of the legal system; it raises significant
moral, ethical, and legal issues . . .; it raises the
possibility that legal rules cannot be efficiently or
effectively administered and implemented; and it
raises broader questions about the fairness,
morality, acceptability, and efficiency of matters
such as the legislative process and administrative
rule-making proceedings. The problem of evidence and
uncertainty is not simply a "technical" or "abstract"
one. However one proposes to deal with the problem of
uncertain inference whether by "abstract" models,
by "common sense" reasoning, by dismissing it as
unmanageable by rational analysis, or in some other
way what one thinks about probability and inference
in [adjudication] profoundly affects what one thinks
about the "rule of law."
Peter Tillers, Introduction to the Boston University School of
Law Symposium on Probability and Inference in the Law of
Evidence, 66 B.U.L.REV. 381, 381-82 (1986). Agreement on
quantification, while not a solution, does help move beyond the
mere anecdotal to at least a rough consensus in application.
Quantification requires analysis in terms of probability. Cf.
Anne W. Martin & David A. Schum, Quantifying Burdens of Proof: A
Likelihood Ratio Approach, 27 JURIMETRICS J. 383 (1987); Peter
Tillers & David A. Schum, Charting New Territory in Judicial
Proof: Beyond Wigmore, 9 CARDOZO L. REV. 907, 910 (1988) ("The primary
motivation for the use of most mathematical models of proof is to
facilitate consistent thinking about very complex problems.").
While "reasonable probability," the term of art selected by the
Court of Appeals, seems deliberately designed to be fuzzy in
concept and articulation, it is suggested that a probability of
20% the approximate inverse of "clear, unequivocal and
convincing evidence" represents a sensible and enforceable
standard, considering that deportation often has such serious
consequences for the deportee and his or her family.
It has been said that,
[t]ime is irreversible, events unique, and any
reconstruction of the past at best an approximation.
As a result of this lack of certainty about what
happened, it is inescapable that the trier's
conclusions be based on probabilities.
J. MAGUIRE, J. CHADBOURN, J. MANSFIELD, ET AL., CASES AND
MATERIALS ON EVIDENCE 1 (6th ed. 1973). See also United States
v. Fatico, 458 F.Supp. 388 (E.D.N.Y. 1978). In Fatico, the
court noted: "Quantified, the preponderance standard would be 50%
probable. . . . [T]he probabilities might be in the order of
above 70% under a clear and convincing evidence burden. . . . In
terms of percentages, the probabilities for clear, unequivocal
and convincing evidence might be in the order of 80% under this
standard." 458 F.Supp. at 405. Id. at 411 (concluding that
"clear, unequivocal and convincing evidence" means a probability
of "about 80%"). Cf. United States v. Shonubi, 895 F.Supp. 460,
514 (E.D.N.Y. 1995) ("[Non-statistical] evidence offers nothing
more than a basis for conclusions about a perceived balance of
probabilities."), rev'd, 103 F.3d 1085, 1092 (2d Cir. 1997)
("Though [the district court's] comprehensive opinion is a
valuable addition to the legal literature on the subject of
evidence in particular and judicial decision-making in general, we conclude that he relied on
evidence beyond the category of `specific evidence' that our
prior opinion ruled was required for determination of a "relevant
conduct" drug quantity for purposes of imposing a criminal
sentence."); Peter Tillers, Introduction: Three Contributions to
Three Important Problems in Evidence Scholarship, 18 CARDOZO L.
REV. 1875, 1884 (1997) ("One possible way to make sense out of
[the opinion of the Court of Appeals in Shonubi] is to view it
as a condemnation of statistical evidence in general. . . . But
there are . . . problems with the view that [the opinion] is, at
bottom, a repudiation of statistical evidence and statistical
methods. [For instance, the Court of Appeals for the Second
Circuit] seems to accept the use of statistics and statistical
methods for [related] purposes. . . .").
When, as here, a relatively "simple fact" what happened in
the real world of defendant's life is combined with what an
unknown administrative judge would have done in evaluating the
evidence supporting that finding of "fact," and analyzing the
"fact" in the context of a "legal rule," the problem of
determining how the judge would have decided the "law-fact" issue
is complex. It is compounded by many factors among them the
egocentricity of the judge. At most a band of probabilities is
all that we can expect. Since the defendant's constitutional
rights have been violated he is entitled, it is submitted, to the
most favorable band border here, it is proposed, 20%. An
attempt to quantify in order to provide some uniformity in
application of the rule is justified even though it must be
conceded that the percentage chosen is based on public policy
favoring enforcement of constitutional rights and somewhat
The present illegal reentry case involves a potentially
unconstitutional deportation of great consequence to a
deportee-defendant: To be sure, a deportation proceeding is not a
criminal prosecution. But it does not syllogistically
follow that a person may be banished from this
country upon no higher degree of proof than applies
in a negligence case. This Court has not closed its
eyes to the drastic deprivations that may follow when
a resident of this country is compelled by our
Government to forsake all the bonds formed here and
go to a foreign land where he often has no
Woodby v. Immigration & Naturalization Serv., 385 U.S. 276, 285
(1966). Unlike a standard deportation case, which would be
nominally civil, this case also involves a criminal prosecution.
Requiring a petitioner to meet a burden greater than 20% to
establish a "reasonable probability" that he would have been
granted section 212(c) relief would therefore seem unfair and
C. Means of Determining Prejudice: Balancing Positive and
To establish prejudice, the defendant must show that there is a
"reasonable probability" that he would have received section
212(c) relief. Former section 212(c) allowed non-citizens in
removal proceedings meeting the statutory criteria to apply for a
discretionary waiver of deportation. See 8 U.S.C. § 1182(c)
(1994). To qualify for such relief, an alien was required to show
that he or she: (1) was a lawful permanent resident of the United
States; (2) had an unrelinquished domicile of seven consecutive
years; and (3) had not committed an aggravated felony for which
he or she had served a term of at least five years. See id. The
Attorney General could exercise discretion to waive deportation
of an alien who satisfied these criteria. In the years leading up
to 1996, the year the defendant received his deportation hearing,
over half of the applications for 212(c) relief were granted.
See INS v. St. Cyr, 533 U.S. 289, 296 n. 5 (2001).
A section 212(c) determination involved a balancing of "the
adverse factors evidencing an alien's undesirability as a permanent resident with the social
and humane considerations presented in his behalf to determine
whether the granting of section 212(c) relief appear[ed] in the
best interests of this country." Matter of Marin, 16 I. & N.
Dec. 581, 584 (BIA 1978); accord Douglas v. INS, 28 F.3d 241,
244 (2d Cir. 1994).
Adverse factors included the nature and underlying
circumstances of the exclusion ground at issue, the presence of
additional significant immigration law violations, the existence
of a criminal record and its nature, recency and seriousness, and
the presence of other evidence indicative of an alien's bad
character or undesirability as a permanent resident. See Marin,
16 I. & N. Dec. at 584.
Favorable factors included family ties within this country,
residence of long duration in the United States, arrival in the
country at a young age, evidence of hardship to the non-citizen
and the non-citizen's family upon deportation, Armed Forces
service, employment history, community service, property or
business ties, other evidence attesting to good character, and,
in the case of an alien convicted of criminal conduct, proof of
genuine rehabilitation. See id. at 585.
Resolution of the prejudice issue . . . is somewhat
akin to a trial within a trial. The district court
must determine whether there is a reasonable
probability that the alien would have obtained relief
had he or she been informed of, and sought, a Section
212(c) hearing. The court must first obtain all of
the facts relevant to the particular alien and then
apply standards established under Section 212(c) to
those facts, taking into account actual cases in
which similarly situated aliens have been granted or
denied discretionary relief.
Copeland, 376 F.3d at 73-74.
D. Unusual or Outstanding Countervailing Equities
The Court of Appeals noted in Copeland that "[w]here . . . an
alien is deportable by reason of two narcotics convictions, the alien must make a
showing of unusual or outstanding countervailing equities to
obtain a waiver of deportation." Id. at 74 (citing Lovell v.
INS, 52 F.3d 458, 461 (2d Cir. 1995)).
The necessity of demonstrating unusual or outstanding
equities is not exclusively triggered by serious
crimes involving controlled substances, however.
Rather, as we indicated in Marin, one must examine
the gravity of the offense, per se. In addition,
such a showing may be mandated because of a single
serious crime, as in Marin, or because of a
succession of criminal acts, which together establish
a pattern of serious criminal misconduct. Finally, we
observe that an alien who demonstrates unusual or
outstanding equities, as required, merely satisfies
the threshold test for having a favorable exercise of
discretion considered in his case; such a showing
does not compel that discretion be exercised in his
Matter of Buscemi, 19 I. & N. Dec. 628, 633-34 (BIA 1988). See
also Montilla v. INS, 926 F.2d 162
, 170 (2d Cir. 1991) ("We
recognize that petitioner's chances on remand may be slim because
of the high standard he must meet as a narcotics offender to be
entitled to a waiver of deportation under § 212(c) of the Act.").
In Montilla, the Court of Appeals for the Second Circuit
embraced the BIA's requirement of a showing of unusual or
outstanding countervailing equities in the case of an individual
convicted of even one serious drug offense. See id.
The BIA has found, inter alia, family ties, long residence in
the country, arrival at a young age, emotional hardship to family
members upon deportation, gainful employment and difficult
childhood experiences to constitute unusual or outstanding
equities. See Matter of Buscemi, 19 I. & N. Dec. at 634 ("In
his favor, the respondent has shown that he has resided in this
country for some 17 years and that such residence began at a
young age. Moreover, the record reflects that the respondent's
entire immediate family resides in this country either as United
States citizens or lawful permanent residents. Furthermore, the
respondent has demonstrated that he is closely tied to his family and that all
would suffer emotional hardship if the respondent were deported.
Finally, we note that the respondent appears to have a history of
gainful employment and that he was forced to grow up under
difficult circumstances. We consider these to be outstanding
equities, particularly with regard to the respondent's 17 years
of residence in this country since age 9.").
As illustrated by Matter of Buscemi, the presence of unusual
or outstanding countervailing equities will not necessarily
outweigh adverse factors. See, e.g., Zaluski v. INS,
37 F.3d 72, 74 (2d Cir. 1994) (affirming BIA's holding that defendant's
"repeated criminal violations constitute a serious adverse
discretionary factor," and that, "[w]hile his equities, including
lengthy residence, hardship to himself and to his family, and
employment ties to the United States rise to the level of
outstanding and unusual, . . . they are insufficient to outweigh
the seriousness of his criminal activity.").
"[S]ection 212(c) applications involving convicted aliens must
be evaluated on a case-by-case basis, with rehabilitation a
factor to be considered in the exercise of discretion." Matter
of Roberts, 20 I. & N. Dec. 294, 299 (BIA 1991) (considering
rehabilitation to be a "significant discretionary factor."). A
clear showing of rehabilitation, however, is not an absolute
prerequisite to a favorable exercise of discretion in every
section 212(c) application involving an alien with a criminal
record. See Matter of Edwards, 20 I. & N. Dec. 191, 196 (BIA
1990) ("To the extent that [prior] language may be read as
creating an absolute prerequisite to a favorable exercise of
discretion, we withdraw from it. Rather, section 212(c)
applications involving convicted aliens must be evaluated on a
case-by-case basis, with rehabilitation a factor to be considered in the exercise of discretion.").
F. Cases Involving Similarly Situated Aliens
The Court of Appeals instructed the district court in the
instant case to "tak[e] into account actual cases in which
similarly situated aliens have been granted or denied
discretionary relief." Copeland, 376 F.3d at 74. The
examination of these cases was to be informed by the Supreme
Court's broad observation that "over half of all
[contemporaneous] 212(c) applications [were] granted." Id.
(citing St. Cyr, 533 U.S. at 296 n. 5).
Actual cases were as myriad as the differences in the
backgrounds of those seeking section 212(c) relief. Much depended
on the particular administrative judge and the dedication and
skill of the lawyer assembling his or her client's favorable
data. As one experienced attorney explained,
I'm an attorney with the Legal Aid Society, the only
free legal-service organization in New York City that
provides assistance to people who are [being
deported] because of a criminal conviction.
. . . .
In 1986 we deported just under 2,000 immigrants per
year for criminal offenses. Last year that number was
79,000. . . . Many of the people being deported have
lived here for a long time. Some came here as babies
and now have spouses and children. Some have never
even seen their native countries. . . .
I used to be able to leave my work at the office. But
now when I'm with my family, my mind is constantly on
what I am going to do Monday for this person. I wake
up in the middle of the night thinking about a
client. I used to paint portraits. I don't do that
anymore. . . . In the beginning, I could detach, but
when you start getting calls from a guy who's crying
uncontrollably and all he's talking about is his kids
Bryan Lonegan, My Hands are Tied, NY TIMES, Nov. 7, 2004. Much
appears to have turned on the luck of the draw and the personal
view of the hearing officer. See Maurice A. Roberts, The Exercise of Administrative Discretion Under the Immigration
Laws, 13 SAN DIEGO L. REV. 144, 146-47 (1975) ("Theoretically,
the evidence submitted . . . is weighed objectively and
dispassionately and appropriate fact findings are made on the
basis of the persuasiveness of the evidence. Realistically, and
especially where the proofs are conflicting, the appraisal of the
evidence frequently involves a value judgment, in which the
subjective attitudes of the adjudicator can often play a decisive
part."). The effect of a given immigration judge's attitude
toward non-citizens, particularly those convicted of crimes,
cannot be underestimated. See id. at 165.
The Court of Appeals has directed a backward-looking
theoretical inquiry into what likely would have happened had the
defendant in the case now before this court been able to seek
section 212(c) relief. The review of actual cases, decided by
immigration judges and the Board of Immigration Appeals, as well
as by the Court of Appeals for the Second Circuit and the
district courts, is instructive.
1. Court of Appeals Cases
a. Illegal Reentry
In United States v. Scott, 349 F.3d 111 (2d Cir. 2005), the
Court of Appeals for this circuit reversed a conviction of
illegal reentry into the United States, holding that the district
court erred in denying the defendant's motion to dismiss the
indictment on the ground that the underlying deportation order
was invalid. In determining whether the defendant was prejudiced
by the error in his deportation proceedings, the Court of Appeals
reasoned as follows:
Several factors would have weighed in favor of
granting § 212(c) relief to Scott in 1996 fifteen
years of residence in New York, strong family ties to
New York, young age of lawful arrival in [the] United States, and employment and education
in New York. According to Scott, his mother would
also have testified that he is a "good father and a
good husband," a "nice caring person" who is "willing
to help and very considerate," and that he was
physically abused as a child.
Although the parties dispute the degree of
rehabilitation a defendant-alien must achieve, Scott
makes a legitimate claim under any reasonable
standard that he could have persuaded an IJ in 1996
that he was rehabilitated, given his successful
completion of the [New York State Shock Incarceration
Scott's criminal record as of 1996 would undoubtedly
have weighed against § 212(c) relief. Prior to being
ordered deported in 1996, Scott had four convictions,
for which he was sentenced to five years of
probation, three days of community service, two to
four years imprisonment, and three to six years of
imprisonment, respectively. In Perez, we found that
the alien could have made a strong showing for §
212(c) relief despite his single conviction for a
drug trafficking offense, for which he was sentenced
to six months' imprisonment. Although Scott has a
lengthier criminal history than Perez, Scott's
multiple [automobile theft related] crimes were
neither violent nor drug-related. Hence, as in Perez,
Scott's criminal record would not have precluded §
There is some indication, as the district court
suggested, that, given his "lengthy criminal
history," Scott may have been required to show
"unusual or outstanding equities" in his favor.
However, an alien's strong family ties to the United
States in addition to his extensive educational and
employment histories in the United States have, on
occasion, been held to outweigh a single conviction
of third degree drug possession, a crime more serious
than any of Scott's. Therefore, we are persuaded that
Scott's multiple convictions for lesser crimes would
not have outweighed his strong ties to the United
Id. at 120-21. The defendant in Scott had been convicted of
grand larceny, after being seen putting a motorcycle into a
stolen van, criminal possession of stolen property, after
reportedly selling two stolen vehicles to an undercover officer,
possession of burglar's tools, after being arrested for attempted
auto theft, a separate charge of grand larceny, illegal
possession of vehicle identification plates, and criminal
possession of stolen property. The Court of Appeals held that the district court erred in considering certain ex post data in
determining prejudice. Even considering only the information
available at the time of the deportation order, as recognized by
the Court of Appeals, the defendant had a "lengthy criminal
In United States v. Calderon, 391 F.3d 370 (2d Cir. 2004), a
defendant moved to dismiss an indictment charging him with
criminal reentry into the country. This court dismissed the
indictment and the Court of Appeals affirmed its dismissal. Mr.
Calderon had entered the United States in 1988 and become a
lawful permanent resident in 1990. In 1994, he pled guilty to the
possession of a controlled substance with intent to distribute
and was sentenced to probation for 3 years with the condition
that he serve 180 days in prison. In 1998 he was convicted of
criminal mischief and assault by automobile and sentenced to a
term of imprisonment of 30 days. The court found that the
defendant could "make a plausible showing that had he been
granted a section 212(c) hearing, he would not have been
deported, and that the proceeding was fundamentally unfair."
Id. at 376 (internal quotations and citation omitted).
Specifically, the district court had found:
Mr. Calderon can make a plausible showing that had he
been granted a section 212(c) hearing, he would not
have been deported. He has strong ties to the United
States. He lived in the United States legally for
approximately ten years. His wife is a long-time
lawful permanent resident. He had full custody of his
son, a United States citizen. His criminal history is
comparatively less serious, and he does not appear to
have a history of immigration law violations.
Arguably, he was, on the whole, a productive member
of the United States community.
United States v. Calderon, 2003 WL 1338943, at *7 (E.D.N.Y.
2003). The United States Court of Appeals for the Second Circuit
concluded that the finding was not clearly erroneous and that
there was no reason to disturb it. Calderon, 391 F.3d at 376. In United States v. Perez, 330 F.3d 97
(2d Cir. 2003), the
Court of Appeals considered the case of a defendant whose
attempted illegal reentry charge was dismissed by the district
court on the grounds of an invalid underlying deportation. The
district court had held that the failure of defendant's counsel
to file an application for discretionary relief amounted to
ineffective assistance of counsel. See United States v. Perez,
213 F. Supp. 2d 229
, 235 (E.D.N.Y. 2002) ("In a case at the verge
of fundamental unfairness, which could lead to a serious criminal
prosecution and a long prison term, due process should be
interpreted generously to protect the accused. An alien is not
entitled to any less due process protection than a citizen
especially in a proceeding so important as one which could lead
to the devastating punishment to himself and his family of
separation from home and loved ones by deportation.").
The Court of Appeals affirmed the district court's finding that
the defendant had shown his deportation proceedings to be
fundamentally unfair as a result of counsel's ineffectiveness.
Perez, 330 F.3d at 104. It concluded that Perez had "shown
prejudice because he [showed] that he was eligible for § 212(c)
relief and that he could have made a strong showing in support of
his application for such relief." Id. at 102. The Court of
Appeals applied the Marin balancing test, weighing both
positive and negative factors:
[S]everal factors weighed in Perez's favor: he had a
steady history of employment, a wife who was a
permanent resident, and a son who was a United States
citizen. The government does not claim that any
negative factors other than his [single] conviction
[for attempted sale of a controlled substance] would
have weighed against him at the time of his
deportation. Accordingly, Perez could have made a
strong showing in favor of § 212(c) relief.
b. Reviewing BIA Decisions The United States Court of Appeals for the Second Circuit
reviewed section 212(c) decisions by the Board of Immigration
Appeals for abuse of discretion, a much higher burden than the
"likelihood" standard it imposes in the instant case. See, e.g.,
Douglas v. INS, 28 F.3d 241, 243 (2d Cir. 1994) ("We review the
BIA's denial of a section 212(c) application for an abuse of
discretion."). A denial of a section 212(c) application was
deemed to constitute an abuse of discretion "only if it was `made
without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis such as
an invidious discrimination against a particular race or group.'"
Id. (citing Arango-Aradondo v. INS, 13 F.3d 610, 613 (2d Cir.
Douglas involved a non-citizen who was admitted to the United
States as a lawful permanent resident when he was sixteen years
old. All of his immediate relatives resided in the United States
and were United States citizens. Four years after his admission
to the country, Douglas pled guilty to criminal possession of
cocaine. That conviction served to aggravate an already lengthy
criminal record. The INS initiated deportation proceedings based
on the drug offense. Douglas then appealed to the BIA, arguing,
inter alia, that the IJ had abused his discretion in denying
the section 212(c) application by failing to give adequate weight
to positive equities. The BIA affirmed the order of the IJ and
dismissed the appeal. Douglas then appealed to the United States
Court of Appeals for the Second Circuit, arguing that the BIA had
erred because it failed to consider the economic impact of his
deportation on his family, failed to consider "meaningfully" the
emotional impact of the deportation upon Douglas, and failed to
conclude that the positive equities it did consider were unusual
or outstanding. 28 F.3d at 243. The Court of Appeals rejected his
claims, in part because "Douglas [had] not demonstrated that the BIA has uniformly considered characteristics such as his to
be `unusual or outstanding.'" Id. at 245. The court noted that,
"[w]hether such equities should be considered unusual or
outstanding depends upon the specific facts of each case viewing
the record in its entirety." Id.
At issue in Douglas was the consideration of unpublished BIA
cases. Douglas cited three unpublished opinions of the BIA for
the proposition that long-time United States residence, family
ties, and emotional and economic hardship to a relative
constituted "unusual or outstanding" circumstances meriting
weight in the consideration of the section 212(c) application of
a convicted narcotics offender. See id. at 244. The INS
countered that the three unpublished opinions of the BIA cited by
Douglas could not be relied upon as precedent. See id. at 245.
Douglas then observed that the Court of Appeals for the Second
Circuit had itself relied upon unpublished BIA opinions in
Vargas v. INS, 938 F.2d 358, 362 (2d Cir. 1991), in concluding
that the BIA's departure from precedent in that case was
arbitrary and capricious. The Court of Appeals in Douglas
clarified that "such decisions should not be relied upon as
binding precedent in unrelated matters." Douglas,
28 F.3d at 245.
In Lovell v. INS, 52 F.3d 458 (2d Cir. 1995), the Court of
Appeals held that an immigration judge abused his discretion by
not granting a change of venue, but that there was no prejudice,
since it did not affect the outcome of the 212(c) determination.
The petitioner's criminal record in Lovell included two
narcotics convictions. The BIA had noted that the petitioner's
criminal history was a serious adverse factor weighing heavily
against him in the discretionary balancing of factors required by
section 212(c). At his deportation hearing, the Court of Appeals
observed that the IJ had established "that petitioner came here
when he was thirty and had been here but four years when his
criminal problems began," and that they culminated "in two separate drug convictions, state and federal,
one for conduct while on bond from the other." Id. at 460. As a
result of the two narcotics convictions, the Court of Appeals
determined that it was incumbent on the petitioner to show
unusual or outstanding countervailing equities to obtain a waiver
of deportation. See Lovell, 52 F.3d at 461. The Court of
Appeals concluded that both the immigration judge and the BIA
gave full credit to the petitioner's positive factors, including
a history of employment, though marred by the failure to pay
taxes, strong family ties to the United States, and some evidence
of good character. It concluded that these findings were
insufficient to outweigh the adverse factors presented by his two
narcotics convictions, and as a result, the court declined to
disturb the decisions of the IJ and the BIA.
In Zaluski v. INS, 37 F.3d 72 (2d Cir. 1994), a non-citizen
petitioned for review of a final order of deportation by the BIA.
Zaluski contended that the BIA abused its discretion in
dismissing his appeal. The Court of Appeals reviewed the
reasoning of the BIA:
After finding that some of Zaluski's equitable
arguments were more appealing than the IJ had found
them to be, the BIA nevertheless held that Zaluski's
"repeated criminal violations constitute a serious
adverse discretionary factor," and that, "[w]hile his
equities, including lengthy residence, hardship to
himself and to his family, and employment ties to the
United States rise to the level of outstanding and
unusual, . . . they are insufficient to outweigh the
seriousness of his criminal activity."
Id. at 74. The Court of Appeals reiterated that it would only
find an abuse of discretion where the decision was made without a
reasonable explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as an
invidious discrimination against a particular race or group. See
id. It stated that "[b]ecause we must give considerable
deference to INS decisions, we need only decide whether or not
the INS considered the appropriate factors and came to a decision that has any rational basis." Id.
(citing Dhine v. Slattery, 3 F.3d 613
, 619 (2d Cir. 1993)). The
Court of Appeals ultimately concluded that "the BIA fully
considered all of Zaluski's arguments, carefully weighed all the
equities of the case," and as a result, "[found] no abuse of
discretion in this case." Id.
In Arango-Aradondo v. INS, 13 F.3d 610 (2d Cir. 1994), the
Court of Appeals held that a denial of a waiver of deportability
did not constitute an abuse of discretion. The deportation in
Arango-Aradondo was prompted by a 1990 plea of guilty to
attempted criminal sale of a controlled substance in the third
degree, which resulted in a sentence of three to six years
imprisonment. See id. at 610. Viewed in its entirety,
Arango-Aradondo's criminal record included, inter alia,
"twenty-one arrests, seven convictions and multiple extended
periods of incarceration." Id. at 611-612. The Court of Appeals
declined to disturb the determination of the IJ and the BIA's
affirmance of that decision:
In this case, it is evident that the immigration
judge carefully and thoroughly weighed the evidence
in Arango's favor (including his drug and alcohol
rehabilitation efforts, his longtime residency in the
United States, his close family ties, and the
hardship he will endure in Colombia given his HIV
status and his lack of ties there) against the
detrimental evidence (including his sporadic
employment record, his failure to file taxes, and,
most importantly, his "very lengthy and very severe"
criminal record together with his long involvement in
drug culture). Based on these considerations, the
judge concluded that "the positive factors presented
just do not outweigh the adverse factors." Since the
judge considered the evidence presented by Arango, we
are not empowered to reweigh the evidence and second
guess his determination.
Id. at 613.
In Rabiu v. INS, 41 F.3d 879 (2d Cir. 1994), the Court of
Appeals held that the failure of a non-citizen's lawyer to timely file an application for a
section 212(c) waiver of deportation constituted ineffective
assistance of counsel. Before it could find that the attorney's
failure to file caused the defendant actual prejudice, the
district court indicated that the defendant was required to "make
a prima facie showing that he would have been eligible for the
relief and that he could have made a strong showing in support of
his application." Id. at 882. It decided:
Rabiu made a prima facie showing that he was
eligible for relief under section 212(c) in his brief
to the BIA. He alleged that he arrived in the United
States when he was nine years old and that he has
resided continuously in the United States for the
past fifteen years as a lawful permanent resident,
well over the statutory minimum of seven years. He
alleged that his father, sisters and cousins all
reside in the United States, giving him substantial
family ties to the United States. He also alleged
that he has a long history of employment, and that he
has made efforts to rehabilitate himself while in
prison by obtaining an associate degree certificate.
. . . .
Rabiu . . . would have been eligible for relief had
his section 212(c) application been filed, and . . .
he was a strong candidate for that relief.
Id. at 883 (citation omitted). The Court of Appeals came to
this conclusion despite the fact that the defendant "was
convicted of an aggravated felony and sentenced to five years'
imprisonment." Id. It reversed the BIA's denial of Mr. Rabiu's
appeal and remanded to the IJ to allow him to file for a waiver
of inadmissibility pursuant to section 212(c).
In Vlassis v. INS, 963 F.2d 547 (2d Cir. 1992), a non-citizen
petitioned for review of an order of the BIA denying his
application for a stay of deportation. The Court of Appeals held
that the resident who was subject to deportation for violating
narcotics laws was not entitled to a discretionary waiver of
deportation. The court considered that in December of 1981,
Vlassis pled guilty to a charge of unlawful possession of cocaine, quaaludes,
and marijuana, and was conditionally discharged. In May of 1985,
he was convicted upon a plea of guilty to a charge of attempted
criminal sale of marijuana and was fined $100. Less than six
months later, in November of 1985, he pled guilty to a charge of
criminal sale of marijuana and was fined $200. In April of 1986,
he was named in a sixteen-count indictment charging various
narcotics violations. In July of 1986, he pled guilty to one
count alleging criminal sale of cocaine in the third degree and
was sentenced to a one to three year prison term. The Court of
Appeals in Vlassis reasoned:
At the outset, Vlassis appeared to be a likely
candidate for waiver. Born in Greece in 1960, he came
to the United States with his parents in 1967 and has
resided in this Country ever since. He speaks little
Greek and has only one known relative in Greece.
However, these equities quickly were outweighed by
Id. at 550. With the exception of the identified equities, the
court found that Vlassis presented a relatively weak case for
His employment record was suspect, his claim being
that he worked mainly for members of his family and
often was paid "off the books." He claimed to have
received a high school equivalency diploma during his
incarceration and to have received substance abuse
counselling [sic]. However, no family members
testified on his behalf, and he submitted no
documentary evidence in support of his claim of
rehabilitation. Accordingly, he was granted a
continuance to produce both witnesses and supporting
documents. [The IJ] wanted to see an up-to-date
parole officer's report, a report showing Vlassis'
attendance at drug counselling [sic] sessions, tax
returns for the years Vlassis claimed to have been
working, a certificate of dismissal from parole and
an up-to-date police record. [The IJ] adjourned the
hearing so that this evidence could be produced.
At the next hearing . . . Vlassis produced none of
the requested documents or witnesses, and the matter
was adjourned again. . . . At the [next] hearing, the requested
documentary evidence still was not produced. Vlassis'
mother did appear and testify. Her testimony did
little to bolster her son's case, as it did not
appear that she and her son were very close. She did
not know that he had a drug problem or that he had
been arrested three times prior to his 1986
Not surprisingly, [the IJ] concluded that Vlassis had
not established that he had rehabilitated himself
from his drug-related problems so that the social and
humane considerations in his favor were not
outweighed by the undesirability of permitting him to
remain a permanent resident.
In an eight-page order which recited at length the
facts and findings below, the BIA . . . dismissed
Vlassis' appeal . . . demonstrating thereby a
complete knowledge of the facts and the applicable
law. Its reasoning followed very closely that of [the
IJ] and is persuasive.
Id. at 550.
In Vargas v. INS, 938 F.2d 358 (2d Cir. 1991), a non-citizen
appealed the BIA's dismissal of his motion to reopen the denial
of a waiver of deportation. The IJ had found the petitioner
eligible for relief under section 212(c), and had acknowledged
that he had strong family ties in the United States. She denied
discretionary relief, however, based on his criminal record and a
weak showing of rehabilitation. The petitioner appealed from the
IJ's decision to the BIA, which then dismissed his appeal. While
the BIA acknowledged that the "petitioner presented `outstanding
equities,' including strong family ties in the United States and
no possibility of livelihood in the Dominican Republic," id. at
360, it nevertheless denied relief based on his criminal record
and slim evidence of rehabilitation. Some time later, petitioner
moved to reopen the BIA's denial of relief under section 212(c),
and sought "to present new evidence concerning, among other
things, his employment history, continued law-abiding conduct,
independence from drugs, and family life, including the birth of
a child." Id. The Court of Appeals held that the decision of the BIA denying the motion to reopen the denial of
the waiver of deportation, based on a prior BIA decision, was not
the product of reasoned decision-making, and vacated the BIA
decision. In so doing, it relied on two unpublished decisions of
the BIA to find that the decision in petitioner's case was
arbitrary and capricious. See id. at 362. This approach
arguably was later disapproved in Douglas, as discussed
2. District Court Cases
In United States v. Garcia-Jurado, 281 F. Supp. 2d 498
(E.D.N.Y. 2003), a non-citizen moved to dismiss a count of
illegally reentering the United States after deportation for an
aggravated felony. He argued that his deportation was unlawful
because he was improperly denied an opportunity to seek
discretionary relief under section 212(c). The court agreed,
finding actual prejudice based on the conclusion that the
deprivation of judicial review may well have resulted in a
deportation that would not otherwise have occurred:
Garcia-Jurado claims that he would have been a good
candidate for a § 212(c) waiver of deportation.
Indeed, he would. Garcia-Jurado has lived here since
he was a teenager. He has strong family ties in this
country: a mother, stepfather and two half-sisters
who are United States citizens. He also has two other
siblings who are legal permanent residents, and,
importantly, a daughter who is a citizen. He attended
high school here, [and] was employed for a year prior
to his arrest. He also received a GED and vocational
training in prison, and was employed as a machine
operator after his release from prison up to the time
he was deported. Garcia-Jurado has also submitted an
affidavit by [his attorney], who represented him
throughout the deportation process, claiming that in
his experience representing over 75 aliens at §
212(c) hearings, aliens with equities similar to
Garcia-Jurado were reasonably likely to receive §
As to adverse factors, other than the conviction
itself, the government has not argued that any of the
adverse factors weighed against Garcia-Jurado.
Moreover, as the Supreme Court noted in St. Cyr,
51.5% of the [section 212(c)] applications for which
a final decision was reached between 1989 and 1995 were
granted. Nothing in the record indicates that
Garcia-Jurado's circumstances were such that would
place him outside this statistical norm.
Garcia-Jurado has, therefore, shown that he was
prejudiced by the deprivation of judicial review
given that it was reasonably likely, and certainly
plausible, that he would have received § 212(c)
relief. Accordingly, Garcia-Jurado has shown that in
addition to being deprived of an opportunity for
judicial review, his deportation was fundamentally
Id. at 515 (internal quotation omitted).
In United States v. Frias-Gomez, 262 F. Supp. 2d 11 (E.D.N.Y.
2003), a non-citizen moved to dismiss a charge of attempted
illegal re-entry. The district court held that the defendant's
prior deportation proceedings violated his due process rights by
improperly denying him the opportunity to apply for discretionary
relief from deportation. The reasoning for this prejudice
determination was as follows:
Mr. Frias-Gomez can make a plausible showing that
these errors prejudiced him. He was statutorily
eligible for a waiver of deportation under former
section 212(c). He was a lawful permanent resident,
had lived in the United States for more than double
the seven consecutive years required, and served a
term of imprisonment of less than five years.
If Mr. Frias-Gomez had been granted a section 212(c)
hearing, there is a strong possibility that he would
not have been deported. He had strong ties to the
United States. He entered the United States as a
lawful permanent resident at the age of 11 and lived
in the United States until his deportation, a period
of more than fifteen years. His large family, with
whom he is close, has also lived in the United States
for an extended period of time. He apparently has no
family or close friends in the Dominican Republic. He
has a thirteen year old citizen daughter in the
United States with whom he would like to build a
relationship. Before his conviction, he was steadily
employed and a contributing member of the community.
Although the crime for which he was deported [
possession of a controlled substance with intent to
distribute in the third degree ] is a serious one,
it is not heinous and is essentially his only
criminal history, arguably constituting an aberration for immigration purposes.
Id. at 16-17.
3. Board of Immigration Appeals
a. Precedential Cases
The BIA would hear appeals from immigration judge decisions
granting or denying section 212(c) relief. Its review of such
decisions was de novo.
The Board of Immigration Appeals has . . . been
questioned concerning the standard of review we
utilize when considering a discretionary decision of
the immigration judge, such as the section 212(c)
application in the instant case. Specifically, we
have been questioned about the relationship between
the Board and the immigration judge in terms of
We state at the outset that when the Board engages in
a review of a discretionary determination by an
immigration judge, we rely upon our own independent
judgment in deciding the ultimate disposition of the
case. . . . The authority of the Board to issue a
discretionary decision independent from that of the
immigration judge has been recognized by the federal
courts. Thus, we do not employ an abuse of discretion
standard when reviewing discretionary determinations
of immigration judges.
The advantage of an independent standard of review is
that it promotes uniformity in the application of
various discretionary provisions. . . . If our review
were limited to questioning whether an immigration
judge abused his or her discretion, we would be
unable to remedy [disparities caused by differing
decisions on virtually identical facts]. However, by
utilizing our own discretionary authority, there
exists a forum available to promote uniformity of
. . . .
Finally, we acknowledge that questions concerning our
standard of review were invited by occasional
decisions of the Board which concluded that the
immigration judge "did not abuse his discretion." We
agree that the use of this and similar language can
be misleading. However, such language is attributable
to inartful drafting rather than to a limited review
of the record on the part of the Board. . . . Matter of Burbano, 20 I. & N. Dec. 872, 873-74 (BIA
1994). See also Jeffrey L. Romig, Administrative
Review of Cases Involving the Exercise of Discretion
Under Section 212(c): Should the Board of Immigration
Appeals Adopt an "Abuse of Discretion" Standard?, 9
GEO. IMMIGR. L.J. 63 (1995) ("The BIA's practice of
applying a de novo standard of review in exclusion
and deportation cases has its origin in a decision
issued forty years ago. . . . The BIA's observation
in 1969 that it has `plenary power to make a de
novo review of the record and based on such a review
make its own independent findings on questions of
fact and law irrespective of those made by the
special inquiry officer,' stands today as a succinct
statement of the review authority which the BIA may
exercise in exclusion and deportation cases.")
(citing In re Vilanova-Gonzalez, 13 I. & N. Dec.
399, 402 (BIA 1969)).
The BIA would exercise its independent review authority to
re-weigh the positive and adverse factors that were considered by
the immigration judge in the first instance. Instructive
decisions whose fact patterns may not closely mirror the facts of
the instant case also bear consideration. They will be treated in
Matter of Marin, discussed above, set forth the balancing
test of positive and adverse factors to be employed in section
212(c) determinations. 16 I. & N. Dec. 581 (BIA 1978). The
applicant was a 46-year-old Colombian citizen who pled guilty to
the felony of criminal sale of cocaine. The immigration judge
concluded that the respondent had failed to establish that a
waiver of deportability was merited as a matter of discretion. He
determined that given the criminal conduct at issue, a narcotics
conviction, a waiver should not be granted absent a showing of
"unusual or outstanding equities." Id. at 583.
Other than his residence in the United States for 12 years,
however, the respondent was "unable to advance any substantial equities."
He was single, childless, and had no relatives residing in this
country. His closest relatives (a brother and sister) both lived
in Colombia. The respondent's employment history was sporadic and
he presented no evidence that he would have particular difficulty
returning to Colombia other than stating that "life [was] too
Id. at 583. Based on the record as a whole, the immigration
judge concluded that the respondent's conviction as a drug
offender had not been sufficiently offset by his twelve years of
residence in the United States and his adjustment to prison life
so as to warrant the granting of discretionary relief. See id.
The BIA affirmed, stating that,
[t]he Board has not adopted an inflexible test for an
immigration judge to use to determine as a conclusory
matter whether section 212(c) relief should be
granted as a matter of discretion. The undesirability
and "difficulty, if not impossibility, of defining
any standard in discretionary matters of this
character which may be applied in a stereotyped
manner" has long been recognized. Instead, it has
been held that each case must be judged on its own
16 I. & N. Dec. at 584 (citation omitted).
Matter of Buscemi, 19 I. & N. Dec. 628 (BIA 1988) involved an
application for section 212(c) relief. The non-citizen was a
single, 26-year-old native of Italy whose crime was the attempted
criminal sale of the controlled substance heroin. The applicant
had resided in the United States since 1970, his entire immediate
family resided in the United States, he had helped to support his
family, and he had served as a father figure to his four siblings
since they were abandoned by their biological father in 1975. The
respondent submitted copies of letters and affidavits from his
former neighbors and employer testifying to his good character.
The IJ denied the application for section 212(c) relief,
concluding that the respondent had not demonstrated the outstanding equities and genuine rehabilitation necessary to
merit relief in the face of a serious criminal record. The BIA
Even considering the outstanding equities which the
respondent has been able to establish, we do not find
that granting relief is warranted or in the best
interests of this country. In reaching this
conclusion, we have evaluated the respondent's
equities against the serious adverse factors present
in his case and our determination that he has not
demonstrated rehabilitation. While his deportation
may well involve hardship to himself and certainly
much unhappiness for his family, the responsibility
for this result rests with the respondent alone.
Id. at 635-36.
Matter of Edwards, 20 I. & N. Dec. 191 (BIA 1990), involved a
44-year-old native and citizen of Barbados, who had been admitted
to the United States twenty-two years earlier. He had married a
United States citizen and had four citizen children. His criminal
record included: attempted burglary (1977); third degree
burglary, larceny, possession of burglary tools, and possession
of stolen property (1979); attempted burglary (1981); possession
of a controlled substance (1985); and two counts of possession
with intent to distribute a controlled substance, three counts of
intentional distribution of a controlled substance, and a single
count of conspiracy to distribute a controlled substance (1987).
Edwards pleaded that his wife and children, as well as his mother
and siblings, resided in the United States and that he knew no
one in Barbados. His employment history was presented as a
positive factor, although he acknowledged that he was unemployed
during the period leading up to his 1987 convictions, and that he
had sold drugs while his wife was supporting him. Finally, he
explained that his wife would be unable to accompany him to
Barbados because the country lacked special education facilities
for his autistic son. The immigration judge denied relief, reasoning that the serious
negative factor of the respondent's criminal convictions could
only be overcome by a showing of unusual or outstanding equities,
together with a demonstration of rehabilitation. The BIA
clarified its position with respect to a requirement of
With respect to the issue of rehabilitation, the
Board noted in Matter of Marin . . . and reiterated
in Matter of Buscemi . . . that a section 212(c)
waiver applicant who has a criminal record
"ordinarily" will be required to make a showing of
rehabilitation before relief will be granted as a
matter of discretion. This language has been
interpreted in some cases as though a clear showing
of reformation is an absolute prerequisite to a
favorable exercise of discretion in every case
involving an alien with a criminal record. To the
extent that this language may be read as creating an
absolute prerequisite to a favorable exercise of
discretion, we withdraw from it. Rather, 212(c)
applications involving convicted aliens must be
evaluated on a case-by-case basis, with
rehabilitation a factor to be considered in the
exercise of discretion.
Matter of Edwards, 20 I. & N. Dec. at 196. While it made clear
that rehabilitation is not a threshold requirement for
non-citizens with criminal convictions, the BIA did take
rehabilitation into account as a factor in reaching its ultimate
conclusion with respect to the applicant in Matter of Edwards:
In balancing the various factors of the respondent's
case, we take note of his favorable equities, which
we found to be unusual or outstanding. However, when
we weigh these equities against the adverse factors
of his extensive criminal record, which includes
controlled substance distribution offenses, and our
lack of confidence as to his rehabilitation, we
determine that a favorable exercise of discretion is
Id. at 198-99.
In Matter of Roberts, 20 I. & N. Dec. 294 (BIA 1991), the
BIA, conducting a de novo review, overturned an immigration judge's grant of section 212(c)
relief. The IJ had determined that relief was warranted in the
exercise of discretion. He reasoned that the serious negative
factor of a criminal conviction for the sale of a controlled
substance, cocaine, had been overcome by the respondent's period
of residence in this country, his family ties, the hardship that
deportation would impose on his family, his clean criminal record
prior to and after his conviction, and his history of employment.
The IJ also reasoned that a single conviction for the sale of
cocaine did not constitute drug trafficking and that some of the
facts presented raised the possibility of entrapment.
The BIA rejected the immigration judge's conclusion, first
deciding that a single conviction for the sale of narcotics
sufficiently established trafficking. As to the question of
entrapment, the BIA observed that "[w]hile inquiry may be had
into the circumstances surrounding the commission of the crime in
order to determine whether a favorable exercise of discretion is
warranted, it is impermissible to go behind a record of
conviction to reassess an alien's guilt or innocence." Id. at
301. In weighing the positive and adverse factors considered by
the IJ de novo, the BIA reasoned:
We find that the respondent's conviction for sale of
cocaine constitutes an extremely serious adverse
factor. As such, the respondent must demonstrate
unusual or outstanding equities if he is to have the
possibility of receiving a favorable exercise of
discretion on his waiver application. We conclude
that the respondent has not demonstrated unusual or
outstanding equities so as to offset the serious
adverse factors in his record.
In the respondent's favor, we take into account the
fact that he has resided in the United States for
approximately 12 years. However, we do not find that
this period is so lengthy as to constitute an unusual
or outstanding equity, particularly where the
respondent was an adult when he was first admitted to
this country as a lawful permanent resident. The
majority of the respondent's family reside[s] in New York, and although none of
them appeared to testify on his behalf, they did
submit letters in support of his waiver request. We
note that although the respondent has many close
relatives residing lawfully in the United States, he
has been separated from his wife and their four
children since 1987. Further, he admitted that he did
not call or write to his wife since he was convicted
in 1989. In addition, the respondent testified that
he is not sure of the whereabouts of his 2-year-old
son but believes that he is in the custody of the
child's maternal grandmother, who supports him from
her welfare income. In terms of the financial
difficulties that his family may face due to his
deportation, we note that none of the respondent's
family appear to rely on him for financial support.
The respondent admitted that between 1987 and 1989,
he provided only occasional support of a minimal
amount, and that since 1989, he has provided no
support at all. In addition, his testimony regarding
his 2-year-old son indicates that he does not provide
any support for him. Therefore, the respondent has
not shown that his family's financial situation will
be materially altered if he is forced to depart from
We do not consider the respondent's employment
history to be an unusual or outstanding equity. The
irregularity of his employment between 1987 and 1989
certainly impairs the significance of this factor.
The respondent admits he has paid no income taxes
since 1986. Additionally, he did not demonstrate that
he has any business or property ties to this country.
The respondent merely asserts that he would not be
able to afford tools or real estate in Jamaica. Aside
from this statement, he did not present any evidence
that he would have difficulty residing in Jamaica. In
fact, the respondent testified that he may have
relatives living there, including his father and his
On the other hand, the respondent was convicted of
[the] sale of cocaine, an aggravated felony. . . .
After balancing the respondent's equities, which we
do not find to be unusual or outstanding, against the
adverse nature of his serious criminal conviction for
the sale of a controlled substance, and our lack of
confidence as to his rehabilitation, we conclude that
he has not demonstrated that he warrants a favorable
exercise of discretion.
Id. at 302-303.
In Matter of Coelho, 20 I. & N. Dec. 464 (BIA 1992), the BIA
entertained an appeal by a non-citizen who had been denied section 212(c) relief. Coelho had
been convicted of conspiracy to possess with intent to distribute
cocaine and possession with intent to distribute cocaine. The BIA
considered the particular facts of his case, weighing the
We find that the respondent's convictions . . .
compel the respondent to show unusual or outstanding
equities to warrant a grant of relief.
In the respondent's favor, we consider most
significant his familial ties in the United States
and his more than 23 years of residence in this
country, beginning when he was only 13 years old. The
respondent is the father of two United States citizen
children, who at the time of the deportation hearing
were 5 and 7 years of age. At the time of his
deportation hearing, both children were living with
the respondent's former spouse. The record reflects
that both the respondent and his former spouse have
joint custody over the children, and the respondent
is not required to pay any support. The respondent
testified that he nevertheless sends them between $75
and $300 per week depending on whether he has gone
A majority of the respondent's other family members
reside in the United States. The respondent testified
that at the time of his deportation proceedings, six
of his siblings were living in the United States,
while two were in Canada and only one was in
Portugal. He stated that his father was deceased and
that his mother, with whom he was . . . living, was
in the United States. The record reflects that the
respondent and his mother reside[d] in a three-family
dwelling, the respondent's mother was 74 years old
and was primarily supported by the respondent. The
respondent has sustained intermittent employment
since the age of 16 with the fishing industry.
We find that the respondent's more than 23 years in
the United States, beginning at age 13, and his
familial circumstances are sufficient to show unusual
or outstanding equities. Given the fact that most of
his family is in the country, that he has two United
States [citizen] children that he supports, and that
he currently resides with and supports his mother,
the respondent's equities, taken as a whole, rise to
the level of unusual or outstanding. Our analysis,
however, does not end here. The fact that an alien
demonstrates the requisite unusual or outstanding
equities does not mandate that discretion be
exercised in his favor; rather, we must weigh the
equities against the adverse factors. In regard to the adverse factors in the case, we note
the seriousness of the respondent's conviction for
his two offenses. Both offenses involved cocaine
possession with the intent to distribute. . . . [T]he
respondent was sentenced to confinement for 3 years,
given a special parole term of 3 years, and ordered
to pay $150. By the respondent's own admission, he
intended to sell 2 pounds of cocaine when he was
arrested. The respondent planned to reap and share in
the $50,000 from the illicit drug transaction.
We agree with the immigration judge's conclusion that
even though the respondent denied any involvement in
distributing large amounts of cocaine, the record
reflects that he had been involved in cocaine
trafficking for an extended period of time. The
respondent testified that he first became involved
with cocaine distribution when he was 25 or 26 years
old, which would mean that he participated in the
distribution of cocaine from 1980 or 1981 until his
conviction in 1986. The respondent also admitted that
he used cocaine himself during this period of time.
We find that this testimony and the fact that 2
pounds of cocaine were found on the respondent
contradict his statement that he was not involved in
the distribution of large quantities of drugs.
Furthermore, we find that the respondent's testimony
regarding his involvement was very evasive.
. . . .
The respondent attempted to show that he had
completed his rehabilitation. He testified that he
had no other convictions, that he pleaded guilty to
his offenses, and that he had complied with all the
terms of his probation. Notwithstanding his
testimony, we conclude that the respondent has not
established rehabilitation. During his testimony at
the deportation hearing, the respondent was unwilling
to give straightforward answers in response to the
Service's questioning. The respondent did not express
any remorse and was unwilling to provide details
regarding his cocaine transactions. For these
reasons, we conclude that he did not prove
After evaluating the facts of this case, we find that
a grant of relief is not warranted or in the best
interests of this country. In reaching this
conclusion, we have considered the respondent's
outstanding equities and the serious adverse factors
presented in this case, as well as our determination
that he has not demonstrated either rehabilitation or
other factors to merit a favorable exercise of
discretion. While the respondent's deportation may
well involve hardship to himself and certainly much unhappiness
for his family, the responsibility for this result
rests with the respondent alone. . . .
Id. at 468-70. The BIA denied the appeal from the IJ's
In re Catalina Arreguin de Rodriguez, 21 I. & N. Dec. 38 (BIA
1995), involved an appeal from a denial of section 212(c) relief
by an immigration judge. The applicant was 41 years old and a
native citizen of Mexico. She moved to the United States in 1970,
when she was 17 years old, and she was formally admitted as an
immigrant on December 12, 1975. On September 29, 1993, nearly
twenty years later, the applicant was convicted of importation of
a controlled substance, a conviction involving 78.45 kilograms of
marijuana. The immigration judge denied relief under section
212(c). The BIA reversed. It found that the applicant's
rehabilitation, including immediate acceptance of responsibility,
was an equitable factor in her favor. It also found the
Despite her current incarceration, the record
reflects that the applicant has apparently used her
time in prison well in that she has advanced her
otherwise meager education by voluntarily pursuing
GED studies, for which she received a letter of
commendation, has pursued other courses, has had no
prison infractions, and has been involved in a church
ministry. . . . The other two major equities to be
considered in the applicant's favor are her long
residence and her five United States citizen
children. . . . The letters of support submitted by
the applicant assert that she is a responsible and
caring mother and that her exclusion and deportation
would bring great hardship upon the children.
Accordingly, we find that the minor children do
constitute an outstanding equity, and that the three
adult children are family ties to the United States
to be considered in her favor.
Likewise, we find that the applicant's nearly 20
years of lawful permanent residence in this country
constitutes an unusual or outstanding equity. The
immigration judge found this not to be so because she
"has little to show for her residence in the United
States." There is no doubt that additional community
ties, property and business holdings, or special
service to the community would be equities in her favor. However, the absence of
those additional ties in [itself] does not negate the
weight to be accorded the applicant's long residence
in this country, which is otherwise without a
criminal record, and during most of which she has
been employed. We note that the applicant testified
that she has paid income taxes and she submitted
copies of returns from 1982 to 1986. Accordingly, we
consider the applicant's long residence to be an
unusual and outstanding equity in her favor. . . .
[W]e consider the applicant's long history of
employment to be a favorable equity.
In sum, upon consideration of the applicant's efforts
at rehabilitation and the other factors outlined
above, we give greater weight to the favorable facts
of record than did the immigration judge.
Id. at 40-42. While the BIA explained that a non-citizen who
has committed a serious drug offense faces a difficult task in
establishing that he or she merits discretionary relief, see
id. at 42-43, it underscored that even when presented with
serious crimes, "relief under 212(c) may be merited based upon
the totality of circumstances presented in a particular case."
Id. at 43. It granted a section 212(c) waiver of
b. Unpublished Cases
The Court of Appeals charged the court with the following duty:
The court must first obtain all of the facts relevant
to the particular alien and then apply standards
established under Section 212(c) to those facts,
taking into account actual cases in which similarly
situated aliens have been granted or denied
Copeland, 376 F.3d at 74. The request to take into account
actual cases in the context of decisions by immigration judges
and the Board of Immigration Appeals poses a substantial
challenge. The majority of decisions that might shed light on
what actual immigration judges did when confronted with similar
fact patterns, are largely unavailable unless a party seeks
them through discovery. Oftentimes, the closest a court can come
to identifying what sorts of decisions immigration judges made when faced with particular
facts is by looking to those decisions appealed. The BIA,
however, reviewed "only a small percentage of the total number of
cases heard by immigration judges [who were] also vested with the
discretion to grant relief." Matter of Burbano, 20 I. & N. Dec.
872, 878 (BIA 1994). This presents a skewed sample because
non-citizens satisfied with the results of an immigration judge's
decision, in cases where the government did not seriously object,
were never appealed.
Not only are virtually all section 212(c) immigration judge
decisions unpublished and inaccessible, but the BIA identified
for publication only a select set of section 212(c) decisions
that would bind immigration judges. See 8 C.F.R. § 3.1(g).
Unpublished decisions were afforded no precedential value. See,
e.g., Douglas v. INS, 28 F.3d 241, 245 (2d Cir. 1994) (holding
that unpublished decisions should not be relied upon as binding
precedent in unrelated matters).
When consideration of actual cases is limited to published
opinions, such as some of the landmark BIA cases cited above, the
misleading appearance may be created that section 212(c) relief
was usually denied in cases involving serious criminal conduct,
particularly drug cases.
The Court recognizes that the BIA hears only a small
percentage of the total number of cases heard by
immigration judges and that the immigration judges
are also vested with discretion to grant relief. Yet
this does not diminish the fact that, in cases which
do eventually reach the BIA, the BIA's lack of the
exercise of discretion leaves the impression that it
has a policy of not granting a 212(c) waiver in a
case where an alien has been convicted of a serious
drug offense. . . .
Courts and administrative agencies are given
discretionary power in order to individualize the
application of law, make it flexible and adaptable to
circumstances. Without it, the law is apt to be
criticized as harsh, unfeeling and unjust. In
deportation cases, the Attorney General or her
designees, in this case the INS and the BIA, are entrusted with the authority to
exercise discretion in order to ameliorate the harsh
results that deportation wrecks on aliens and their
families by allowing, in certain circumstances, a
waiver of deportation. . . .
Gonzalez v. INS, 996 F.2d 804
, 810-11 (6th Cir. 1993). But see
Matter of Burbano, 20 I. & N. Dec. 872, 879 (BIA 1994) ("In sum,
this Board has never implemented, in law or in fact, a strict
policy of denying section 212(c) relief to every alien convicted
of a serious drug offense without regard to the totality of
circumstances presented in the case. Our established practice has
been, and continues to be, to premise discretionary
determinations on the individual factors presented in a given
Though landmark published BIA decisions would appear to suggest
that relief was almost always denied, either at the IJ level or
upon reaching the BIA, it is beyond dispute that over half of all
section 212(c) applications were granted. In fact because BIA
review of section 212(c) determinations was de novo, a
non-citizen denied relief by the IJ had a reasonable second
chance on appeal, and it was not uncommon to grant relief where
an IJ had not, although reversals were largely unpublished.
[A] factor which complicate[d] the BIA's ability to
issue uniform decisions in this area [was] the
fact-specific nature of the discretionary section
212(c) inquiry. Each section 212(c) case [was]
unique, involving a myriad of discretionary factors.
There . . . often [may have been cases] with similar
fact patterns such as an alien in his twenties who
ha[d] resided here for half his life, ha[d] a
sporadic employment record, ha[d] family ties in this
country, and ha[d] a serious drug conviction. But the
dispositive factors in these similar kinds of cases
[would have been] whether, for example, the
particular alien ha[d] demonstrated that his family
[was] reliant upon him for emotional and financial
support, or [whether] the particular alien ha[d] made
a persuasive showing of reformation. Jeffrey L. Romig, Administrative Review of Cases Involving the
Exercise of Discretion Under Section 212(c): Should the Board of
Immigration Appeals Adopt an "Abuse of Discretion" Standard?, 9
GEO. IMMIGR. L.J. 63, 72 (1995). See also Daniel Kanstroom,
Surrounding the Hole in the Doughnut: Discretion and Deference
in U.S. Immigration Law, 71 TUL. L. REV. 703, 802 (1997)
(discussing the crisis of discretion posed by "excessive and
inconsistent use of adjudicatory rulemaking by the Board of
Immigration Appeals. . . .").
The difficulty is this: A court, tasked with determining
whether an individual was prejudiced by a fundamental error in
his deportation, must determine whether it is likely that the
individual "would have been granted Section 212(c) relief if he
had obtained a hearing." Copeland, 376 F.3d at 73. It suggests
a quasi-empirical analysis, i.e., an inquiry into what actually
would have happened. Yet courts are effectively prevented, by
lack of publication, from considering IJ decisions the vast
majority of "actual cases" and the only effective window into
what actually did happen. All that is firmly known is that at the
time of the Supreme Court's decision in St. Cyr, "over half of
all Section 212(c) applications had been granted." Id. at 74.
The details of the underlying grants and denials are not readily
accessible, and even when accessible, not formally available for
courts' consideration. In all but the most obvious cases from
terrible crimes with no equities, to minor crimes with great
equities the answer to the question of what would have happened
at a section 212(c) hearing can rarely amount to more than
In an effort to comply with the request of the Court of Appeals
to consider actual cases with similar facts, apart from the
select group of published BIA decisions whose facts have some
similarity to the defendant's, the court examined unpublished
materials of the BIA, available on electronic databases, not for consideration as precedent, but to
obtain a sense of how immigration judges and the BIA have
historically treated applications for section 212(c) relief by
aliens with criminal records that were "quite serious."
Copeland, 376 F.3d at 74. The review confirms what the broader
St. Cyr statistic suggested, namely, that immigration judges
and the BIA have granted relief in many cases involving serious
criminal histories, and denied relief in many others. Cases
involving serious criminal conduct have often been deemed "close"
by the IJ, the BIA, or both, suggesting that their resolutions
were by no means predetermined.
Pre- as well as post-1996 cases demonstrate the challenge in
applying the prior law in "close cases." See, e.g., In re
Antonio Reyes-Hernandez, No. A37 202 672, 2004 WL 1398621 (BIA
Mar. 15, 2004) ("Although this is a close case given the
respondent's rehabilitation, we agree with the Immigration Judge
that, on balance, the negative factors do not outweigh the
respondent's positive factors. In this respect, we note that the
respondent admitted to selling cocaine approximately 500 times
during the course of several years. . . . The Immigration Judge
placed too much weight on his failure to show rehabilitation.");
Matter of Jose Feliz, No. A37 645 946, 29 Immig. Rptr. (MB)
B1-1 (BIA Apr. 13, 2004) (granting motion to reconsider IJ
decision denying section 212(c) relief, and determining contrary
to IJ decision that "the respondent [was] deserving of relief in
discretion" in light of positive factors in respondent's favor,
such as length of residence, family ties, and medical condition,
although recognizing that "admittedly a substantial amount of
cocaine was involved [in his offense.]"); Jose
Santos-Maldonado, No. A93 192 030, 2004 WL 1739060 (BIA June 22,
2004) ("[W]e defer to the Immigration Judge's first hand
assessment that the gravity of the respondent's crime [of moral
turpitude], which cannot be denied, is outweighed by the
respondent's equities."); In re Souvith Vongvixay, No. A23 882 967, 2003 WL 23216741 (BIA Sept. 29,
2003) ("The Board recognizes that this is a close case with
regard to the exercise of [section 212(c)] discretion considering
the nature of respondent's criminal history (sexual assault in
1st degree; possession of a stolen vehicle; shoplifting). Like
the Immigration Judge, however, the Board finds that the
respondent in this case presented outstanding or unusual equities
which do outweigh the adverse factors in this case."); Matter of
Dominos Dias Goncalves, No. A34 744 205, 26 Immig. Rptr. (MB)
B1-117 (BIA Nov. 25, 2002) (overturning IJ's denial of 212(c)
relief and noting: "[W]hile it is indeed lengthy, the
respondent's criminal record includes several arrests for minor
offenses which were committed when the respondent was a minor
from an abusive and troubled background. Given the strength of
the positive factors in this case, including the evidence of the
respondent's strong ties in the United States and of his
significant rehabilitation, we conclude that the positive factors
surpass the cumulative weight of the respondent's criminal record
and his substance-abuse history."); Matter of Maico Grimaldy
Lopez-Jimenez, No. A36 410 813, 25 Immig. Rptr. (MB) B1-125 (BIA
Mar. 24, 2002) ("Initially, we find that the respondent's
criminal history, most significantly his two convictions for
attempted robbery, is . . . very serious. He has two convictions
for violent crimes, and it is troubling that the second robbery
conviction occurred when he was on probation. We also consider
that the respondent had several other arrests related to drug
use. . . . It would take an exceptional case to establish
equities to overcome these negative factors. In the respondent's
case, we find that his strong evidence of rehabilitation
ultimately tips the balance of the equities in his favor.");
Matter of Wayne Martin Cammack, No. A30 756 066, 26 Immig.
Rptr. B1-25 (BIA July 9, 2002) (upholding IJ's grant of 212(c)
relief to an aggravated felon who sold crack cocaine, who was
never regularly employed in the United States, and who failed to demonstrate that he would
have any difficulties in returning to the United Kingdom: "The
respondent's equities are considered in light of his serious
criminal history and conduct in this country. While this is a
very close case, on this record we find that the Immigration
Judge was within her range of discretion in determining that the
respondent has met his burden of establishing unusual and
outstanding countervailing equities which outweigh the adverse
factors."); In re: Refugio Lopez-Armenta de Velarde, No. A11
440 995, 7 Immig. Rptr. (MB) B1-161 (BIA Sept. 15, 1989)
(overturning immigration judge's denial of section 212(c) relief,
where non-citizen was convicted of possession of 41 pounds of
marijuana with intent to distribute, finding that extremely long
residence coupled with lawful presence in the United States of
entire family constituted outstanding or unusual equities);
Matter of Andreas Weingarther, No. A8 610 922, 2 Immig. Rptr.
(MB) B1-170 (BIA June 12, 1985) (granting a section 212(c) waiver
to a non-citizen convicted of first-degree manslaughter as well
as a drug offense, noting: "We agree with the Service that the
adverse factors present in this case are substantial and
therefore when this case was first before us in 1978, when the
application for 212(c) relief was originally submitted, we
concluded that the favorable exercise of discretion was
unwarranted. . . . When it comes to the exercise of discretion,
reasonable persons may differ and frequently do. In this case,
the evidence of rehabilitation is substantial and the equities
are outstanding. Consequently, we find no reason at this time to
disturb the immigration judge's decision in this admittedly close
case."); Matter of Jose Jesus Gutierrez-Murillo, No. A13 717
602, 6 Immig. Rptr. (MB) B1-72 (BIA 1988) (holding that
respondent's equities outweighed the strong adverse factors of
record, including a conviction for selling cocaine and a
conviction for voluntary manslaughter, where defendant's victim
was his brother, noting that, "when evidence of serious negative factors [is] present, such as
serious drug offenses, or where human life has been endangered
or, as in this case, has been taken away, a showing of unusual or
outstanding countervailing equities will be necessary in order to
support a grant of relief under section 212(c) of the Act.").
Of the significant number of "close" cases reviewed, at least
two section 212(c) cases ultimately resulted in the grant of
relief to individuals whose criminal records included both
manslaughter convictions and drug convictions. While these cases
may have no precedential value, they are instructive in terms of
"tak[ing] into account actual cases in which similarly situated
aliens have been granted or denied discretionary relief."
Copeland, 376 F.3d at 74.
c. Challenge of "Actual Cases"
Despite the suggestion by the Court of Appeals that the
district court should consider actual cases of similarly situated
individuals, as indicated above, the lack of access to the full
picture of how immigration judges and the BIA were actually
deciding cases and their variability over the years makes it
difficult to accurately assess how similar fact patterns would
have been handled.
The Court of Appeals nonetheless seeks a retroactive prediction
of what would have happened at a hearing before a hypothetical
immigration judge. This inquiry necessarily suggests the
following questions: Who would have held the hearing? Would he or
she have been sympathetic to or hardened against stories like
those of the defendant? What would the judge's life experience
have been like? How would the judge have evaluated witnesses? Ten
years ago, what was the atmosphere like in an administrative
court? Cf. Maurice A. Roberts, The Exercise of Administrative
Discretion Under the Immigration Laws, 13 SAN DIEGO L. REV. 144,
165 (1975) ("An intolerant adjudicator could deny relief to aliens
whose cultural patterns, political views, moral standards or
lifestyles differed from his own. Worse still, a hostile or
xenophobic adjudicator could vent his spleen on aliens he
personally considered offensive without articulating the actual
basis for his decision."); Daniel Kanstroom, Surrounding the
Hole in the Doughnut: Discretion and Deference in U.S.
Immigration Law, 71 TUL. L. REV. 703, 731-32 (1997) ("The
dichotomy between questions of "fact" and those of "law" appears
often in discussions of discretion. Despite its venerability and
durability, however, this distinction is much more slippery than
it might first appear. Fact-finding, for example, might involve
hearing evidence, deciding what is relevant or probative,
weighing different aspects of evidence, deciding what evidence is
accurate or believable, and drawing certain factual conclusions.
It is apparent that most, if not all, of these activities
themselves depend to some degree on prior "legal" (or policy or
philosophical) decisions. Which facts should be focused on? What
is at issue?").
Maurice Roberts, former chairman of the Board of Immigration
Appeals, in explaining the importance of the individual making
the decision, observed:
Regardless of the type of discretion involved, the
fact remains that it is exercised by impressionable
and fallible human beings at all levels of the
administrative hierarchy. . . .
In the absence of carefully considered and clearly
articulated standards, for the exercise of the
various types of discretionary powers, the resulting
decisions must necessarily vary with the personal
attitudes and biases of the individual decision
makers. Adjudicators with hard-nosed outlooks are
likely to be more conservative in their evidentiary
appraisals and in their dispensation of discretionary
bounties than their counterparts with more permissive
philosophies. It must be recognized as a fact of life
that Service officers and Board members are no more
immune than other persons to the influences that
result in individual bias and predilection. To set up
as a standard that a case must be "meritorious"
before discretion is favorably exercised on behalf of an eligible applicant is therefore illusory. Too many
subjective elements go into the making of such a
Maurice A. Roberts, The Exercise of Administrative Discretion
Under the Immigration Laws, 13 SAN DIEGO L. REV. 144, 147-48
Despite the great fact-finding deference usually afforded
district judges by the Court of Appeals for the Second Circuit,
there is a limit to the capacity of trial judges. All that can be
said is that in many cases, perhaps even the majority of cases,
when presented with the very same set of facts, some immigration
judges would have granted section 212(c) relief and some would
have denied it, because it would have been left to each "to
determine for himself, on the basis of his own subjective
experiences and beliefs, just what factors in an alien's life
should be determinative in exercising discretion and how much
weight should be accorded each factor." See id. at 165. How one
hypothetical immigration judge would have decided a case is
nearly impossible to determine.
We note in this regard that the individualistic
nature of a discretionary determination permits the
possibility that differing decisions may be reached
based on essentially identical facts, with each
decision arguably falling within a reasonable
exercise of discretion.
Matter of Burbano, 20 I. & N. Dec. 872, 873 (BIA 1994). See
also Mar. 24, 2005 Hrg. Tr. at 132 (Immigration Judge Williams:
"Judges can disagree amongst themselves[:] Judge A would have
granted it, Judge B would have denied it. But those are usually
judges that fall within a permissible center. I mean, there is no
absolute correct answer, but there is the permissible middle.").
Immigration judges are human, subject to varying biases, and
within the vast permissible middle in section 212(c) cases, perhaps best represented by St.
Cyr's fifty plus percent statistic, it is inevitable that some
judges would have approached their evaluations with more sympathy
and compassion than others:
My duties [as an immigration judge] sometimes vary
considerably from those of other administrative
judges and from civil and criminal court judges. I
have cases where there are hours of testimony
concerning torture in Algerian prisons. I listen to
the testimony of medical personnel who are torture
experts. I have people who appear in front of me with
no attorney, all-alone, and they do not speak
English. Not only that, they speak a rare language
where there are no interpreters available in this
area, and only one or two in the United States. I
have many cases where the respondent has dealt with
an "attorney" for many months (and at great cost),
only to find out later that the person was a notary
public and not an attorney, and could not represent
him in court.
. . . .
My 30-year career with the Department of Justice has
been exciting and stimulating. Each case I hear is a
life story. I have been able to grant refuge to
persons who have a genuine fear of persecution. I
have been able to unite or re-unite families. On the
other hand, in many cases I have had to deal with the
frustration of not being able to grant relief to
someone because of the precise requirements of the
statute, even though on a personal level he appears
to be worthy of some immigration benefit.
James P. Vandello, Perspective of an Immigration Judge, 80
DENV. U.L.REV. 770, 770-771, 775 (2003). See also Daniel
Kanstroom, Surrounding the Hole in the Doughnut: Discretion and
Deference in U.S. Immigration Law, 71 TUL.L.REV. 703, 767 (1997)
("Critique of the lack of precise bounds of INS discretion, as
well as the often incomprehensible manner in which it is
exercised, has dogged the INS for many years."). Cf. Matter of
Burbano, 20 I. & N. Dec. at 874 ("[W]e recognize that the
immigration judge who presides over a case has certain
observational advantages due to his or her presence at the
exclusion or deportation hearing."). This conclusion of
egocentricity of the decisionmakers is reflected in the
extraordinarily individuated factual determinations of the Court of Appeals, the district courts, and
the BIA, excerpted supra.
The Court of Appeals for the Second Circuit recently discussed
its expectation for courts in this situation:
[W]hat is at stake in the illegal reentry context is
not the restoration of the defendant's deprived
opportunity to apply for § 212(c) relief. Rather, in
the illegal reentry context the defendant is asking
the court to dismiss the indictment against him. . . .
As such, the courts must necessarily play the role
of prognosticator, and divine whether, had the error
not occurred, the defendant would likely have
obtained immigration relief.
Edwards v. INS, 393 F.3d 299
, 311 (2d Cir. 2004) (emphasis
altered from original). Trial courts are not always well-equipped
to prognosticate and divine because such enterprises are
effectively counter-factual and speculative. Cf. United States
v. Balon, 384 F.3d 38 (2d Cir. 2004) (holding that certain
challenges to conditions of supervised release involving computer
monitoring were not ripe for review, "because it is currently
impossible to predict the [future] state of computer
technology. . . .").
The Court of Appeals for the Second Circuit has proposed a
Strickland habeas corpus test for prejudice in section 212(c)
cases such as the instant one. Strickland v. Washington,
466 U.S. 668 (1984). A Strickland test for prejudice may be
manageable in other contexts, although never fail-safe. For
instance, in a criminal case, an error by defense counsel might
well be "harmless" where a killer was found with a smoking gun
and there were multiple eyewitnesses to the crime, because there
is a clear independent likelihood of conviction but not a
certainty of guilt. In a section 212(c) case, by contrast, unless
the non-citizen had not only a serious, but an extraordinarily
serious criminal history, along with a dearth of positive
factors, given the broad discretion afforded in such questions,
an immigration judge's decision to grant or deny relief may have been close.
Perhaps the best example of this wide range of discretion
especially as it related to close cases or cases involving
serious criminal records is the identification of "unusual or
extraordinary" equities. "Unusual or extraordinary" equities
often amounted to nothing more than re-characterized positive
equities. For instance, residence of long duration in the United
States was normally considered a positive equity. It was also one
of the most common examples of an "unusual or extraordinary"
equity. See, e.g., In re Catalina Arreguin de Rodriguez, 21 I.
& N. Dec. 38 (BIA 1995). Yet there were no clear standards for
when residence of long duration would be considered merely
ordinary and when it would be deemed to rise to the level of
extraordinary. It appears to have been in the absolute discretion
of the IJ or the BIA to make that determination. Meaningful
distinctions are at times difficult to parse, and it is fairly
clear that individuals with virtually identical situations were
treated differently depending on what judge or panel they faced.
See Matter of Burbano, 20 I. & N. Dec. at 873. This should not
be surprising because application of Strickland standards in
state conviction-based habeas proceedings will vary depending on
the district judge and panel of the Court of Appeals for the
Given the broad range of discretion that could be exercised in
cases with identical facts, there is reason to urge that the
Strickland prejudice requirement should not be transposed into
the immigration arena. Cases should instead turn on the
seriousness of the due process denial, rather than on an abstract
and somewhat ill-instructed impression of that denial's effect.
The determination of whether "the entry of the order was
fundamentally unfair," 8 U.S.C. § 1326(d)(3), should be resolved
by a categorical rather than an individual approach. Cf.
Restrepo v. McElroy, 369 F.3d 627 (2d Cir. 2004) (suggesting
that reliance on the availability section 212(c), somewhat analagous to the prejudice inquiry in this case,
could be categorically presumed rather than individually
determined); United States v. Andrade-Partida,
110 F.Supp. 2d 1260, 1272 (N.D. Cal. 2000) (holding that "defendant's 1996
deportation was tainted by a due process violation, and that the
violation prejudiced defendant by foreclosing his opportunity for
judicial review."). Even under such a categorical rule, were the
government to demonstrate as a matter of law that the applicant
could never have obtained section 212(c) relief, i.e. that he
fell outside the category, relief would be denied. See id.
(rejecting government's argument that the defendant was not
eligible for section 212(c) relief and noting that "defendant's
familial and cultural connections in the United States indicate
that he may have merited [a] section 212(c) waiver in 1996"
because he "had lived in the United States since his childhood,
and, at the time of his deportation, he provided support and
child care for his United States citizen wife and their three
A rebuttable categorical presumption of prejudice is not the
standard laid down in the order of remand of the instant case.
The defendant's individual case for prejudice therefore is
considered in accordance with the mandate of the United States
Court of Appeals for the Second Circuit.
IV. Evidence at Hearing
A. Positive and Adverse Factors
At an evidentiary hearing held on March 24, 2005, both parties
had an opportunity to present evidence. Counsel for the defendant
began by calling members of his family.
1. Mother: Ivy Johnson
Ivy Johnson, the defendant's mother, was asked to describe the
defendant as a child. She provided the following testimony: "Well, when he was growing up,
he was a nice boy. He will go to school, everyday go to school.
And he was doing good in school, he was very bright." Mar. 24,
2005 Hrg. Tr. at 8. When asked to describe what the defendant was
like, she indicated that he was "very calm and was a nice
child. . . . At the time I was living with Richie, Richie was a
very nice son and everything like that." Id. at 9-10. When
asked by counsel for the defendant whether the defendant helped
his mother when they lived together, she responded as follows:
Q: Did he help you out?
A: No, sometimes
Q: Please, slowly.
A: Sometimes I was working too.
Q: I am talking about personal things, in terms of
helping you with any personal needs?
A: No. No.
Q: He didn't help you?
A: No. No, anything to help with that. He helped
himself and me, I was working.
Q: You were working?
Q: What was Richard doing?
A: Richard was doing mason work first when I came up
Q: He was working?
Q: Was he supporting his family too?
Q: I am talking about his relationship with you, what
kind of a relationship?
A: We had a good relationship.
Q: Describe that, if you would, please.
A: Responsibilities as a mother. Q: Was he a good son?
A: He was a nice son.
Q: Did he give you help in anyway? Did he help you
with your chores and things around the house?
A: Yes, he would like clean up and wash off things
and clean up.
Q: So he took care of the house while you were living
there with him?
A: Yes, he clean up for me.
Q: What about his relationship with his children?
A: It was a nice relationship.
Q: How many kids did he have?
. . . .
Q: Did he help take care of the kids?
A: Yes, he takes care of the kids.
Q: Was he a good father?
A: Yes, he was a nice father.
Q: What about [his common law wife]?
A: She was a nice girl.
Q: Was she working?
A: Yes, she was here for a year. She learned a trade.
Mar. 24, 2005 Hrg. Tr. at 10-12.
2. Uncle: Donald Johnson
Donald A. Johnson, the defendant's uncle, testified in support
of section 212(c) relief. He has known the defendant since birth.
Asked about the defendant's situation growing up, he responded:
As a kid, I first went to give him scholarship money
when he passed his examination back in Jamaica. That
was a big thing back then. I was working at the time.
I told him there was a competition among nephews. I said anyone pass, I
definitely sponsor them that summer for their books,
etcetera, etcetera. And he was the one that came
[out] ahead, so I was very proud of him with that,
Mar. 24, 2005 Hrg. Tr. at 17. He testified that the defendant was
sent to the United States to pursue his education, since he was a
gifted member of the family. "He was excited about the situation,
because he was coming here for a better life, to take care of his
family that was back home." Id. at 18. Donald Johnson's contact
with the defendant increased upon his arrival in the United
States, and he testified to that contact:
Q: What contact did you have with him once he came up
to the United States?
A: Well, I see him personally. He [came] to my home
and we talked. I [would] see him on a constant basis.
Afterschool he [would] run to may house.
Q: What can you tell us about the type of person he
was growing up here in the United States?
A: He was nice. He was always at my house. . . .
Q: Did there ever come a time that he worked for you?
A: Yes, he did.
Q: Tell us about that, please.
A: I had a couple of properties. I would need people
to supervise, take garbage out, and so forth and so
on. It was nice, he did it.
. . . .
Q: What did Richard do, in terms of helping you
manage the property?
A: Make sure I don't get tickets by taking the
garbage out, and putting them together and so forth
and so on.
Q: Did you pay him for the work that he did?
Q: What about the vacuum cleaner, appliance company.
Did he work for you there?
A: One time he was a salesman for my company. Q: He was a salesman?
Q: What can you tell us about his performance as a
A: He was pretty good. At one time he got [the] top
award for number of sales.
Q: Was he a reliable employee?
A: He was there when necessary.
Q: Do you know specifically when that was?
A: That was about '93 to '95.
Q: He worked for you on a regular basis during that
period of time?
A: Yes, he [did].
Q: Both [by] selling appliances and maintaining the
properties you own?
A: During that time he was basically selling
Q: Did you have any problems with him?
A: None at all.
Q: What, if anything, do you know about his
relationship to [his common law wife]?
A: Based on what I know, he treats her nice. He did
the best he could at the time. What he [could]
afford, he did it. That is what I personally see for
Q: What about his children, did you have an
opportunity to observe his relationship with his
A: That was a decent relationship with the children.
Mar. 24, 2005 Hrg. Tr. at 19-20.
On cross-examination, the government provided a significant
Q: Did you ever file anything with the United States
Government, any state or local government, related to
Mr. Copeland's employment with you?
Q: Do you do that with other employees?
Q: Why didn't you do it with Mr. Copeland? A: With Mr. Copeland there wasn't enough income to
3. Common Law Mother-in-Law: Beverly Lovell
Beverly Lovell, is the mother of the defendant's common law
wife, Monique Brown, and the grandmother of their two children.
She testified on his behalf:
Q: . . . Let me just ask you this, what can you tell
us about the contact that you had an the observations
you made about Richard, in terms of dealing with your
daughter and your grandchildren? Let me break that
down for you. How often did you see
A: Very often. I see Richard as a conscientious and
loving and caring father. Very supportive of my
daughter and the children.
Q: When you say very supportive of them, can you just
elaborate a bit? Tell us what you mean by that.
A: With the homework. My daughter was not well, he
was always there for her.
Q: When you say your daughter was not well and he was
there for her, tell us what you mean by that.
A: I think what stands out for me is that when she
was pregnant, she wasn't feeling well. She was always
able to go to him for comfort. . . . she was always
able to go to him for comfort. That stands out in my
mind when I think of him. He would come to open
school nights, we would go together, actually.
Q: This is the open school nights for Richard, the
A: Richard Copeland, the grandchild.
Q: What, if anything, do you know about the financial
support he provided for your daughter and to the
A: He provided financial support for the children,
yes, he did.
Q: Do you know what kind of work he was doing?
A: He was working with his uncle. . . .
Q: That is an uncle on the other side of the family?
A: His uncle that testified here. Q: That is on his side of the family?
A: Yes, his mother's brother.
Q: You are aware he was working for Mr. Johnson?
A: Yes, I was.
Q: Do you know what kind of work he was doing?
A: He was a salesman selling vacuum cleaners.
Q: Would he talk about that in your presence?
A: Yes. He also gave me a vacuum cleaner. It was a
used one. They would trade a vacuum cleaner when the
client purchased a vacuum cleaner, and trade it in.
Q: In terms of your grandchildren, tell us everything
you can about what you remember about his
relationship with them.
A: He didn't get to spend much time with Tyler, which
is the youngest child.
Q: Why was that?
A: Because he was incarcerated. Richard, they had a
loving, caring, supportive relationship. They played,
helped with homework, and he helped with his
education. And Richard's education as a whole. He is
very caring. As a matter of fact, my family has
adopted him as our child as well. He is like a son to
me. That is why I am here today.
Mar. 24, 2005 Tr. at 24-27.
On cross-examination, the government developed the following
Q: You spoke before about Mr. Copeland providing
Q: Other than his work with Mr. Johnson, are you
aware of any other means by which Mr. Copeland was
able to secure support, financial support for his
A: After his conviction, I found out that he was
doing he was, you know, he was doing illegal
activities. But prior to that I had no idea, prior to
coming prior to being convicted. Mar. 24, 2005 Hrg. Tr. at 30.
4. Aunt: Cymlyn Chambers
Cymlyn Chambers is the sister of the defendant's father. She is
also his legal sister based on his adoption by his grandmother.
She provided testimony on the defendant's behalf:
Q: From the time that Richard came to live with your
mother until his incarceration, how much contact did
you have with him?
A: Well, a lot. When he came up, I had a smaller
brother, approximately two years older than Richard.
They grew up together. They went to school together.
I visited my mom there weekly or so, and Richard was
in the house and he comes to my house. We meet for
family, Thanksgiving and Christmas, the holidays, and
Q: What do you know about Richard's progress with his
A: Richard happened to be, he was real bright when he
was going to junior high and high school. If this is
relative, I have a daughter who is about the same age
as Richard and Richard was really brighter than her
and helped her.
Q: What does she do now, by the way?
A: She is now a medical resident at Brooklyn
Hospital. They were going head and head with
education, but he was [the] brighter of the two. So I
know fairly well in those years he was doing very
well, looked very promising.
Q: What kind of a person was he in your experience?
A: He was just like any one of my children. He calls
me Sis Pam.
Q: Sis Pam?
A: Yes. Sis Pam. Pam is a pet name that he calls me
and he calls me Sis Pam. He is very loving. He is
always in contact. He calls or comes by for the
holiday time until the time that he was incarcerated.
Q: Did you have any relationship or experience with
his children and their mother Monique?
A: They come by, too, when it is holiday time. They
come to visit and we have gifts, or whatever.
Q: Were you able to observe the nature of the
relationship he had with his children and their
A: The children, he totes them around, the daughter.
But Richard he is really very close.
Q: Richard Jr.?
A: Is very close to him and he loves his dad.
Q: Were you aware or did you have any understanding
of what kind of work he did?
A: I know when he was doing this Kirby thing, because
he wanted me to I had a Sears vacuum and he was
encouraging me to get rid of that and get a Kirby.
But I couldn't afford a Kirby then, but I know when
he was doing that.
Q: He tried to sell you a vacuum? I should say, he
was selling vacuum cleaners, to your knowledge?
Mar. 24, 2005 Hrg. Tr. at 38.
On cross-examination, the government inquired about the
contents of a letter Ms. Chambers sent on the defendant's behalf:
Q: You indicate in [your] letter that Mr. Copeland
had made some mistakes. What do you mean by that?
. . . .
Q: What is your understanding specifically of the
mistakes that Mr. Copeland made that you are
referring to in this letter?
A: Having to [do with] drugs and whatever he is
Q: Can you be more specific than that?
A: It was some drug-related charges, guns or drugs or
something like that.
Mar. 24, 2005 Hrg. Tr. at 40.
5. Proffered Testimony of Monique Brown: Beverly Lovell When it became clear that Monique Brown, the defendant's common
law wife, might not make it to the hearing, counsel for the
defendant re-called her mother, Beverly Lovell:
Q: Do you know if [Monique Brown] was planning to be
A: She is supposed to be in transit coming here. I
spoke to her this morning. I spoke to her last night
and I talked to her again this morning, she said she
is on her way. She is trying to make it here. She
didn't want to leave the children, because she didn't
want them to be out of school.
. . . .
Q: Do you know what happened in terms of her plans to
be here? What was related to that?
A: She wanted to be here to testify on Richard's
behalf. The children love him, they want him to be
involved in their lives. It is very difficult for
Q: Let me get to that. As far as you know, she had
planned to be here today.
A: Yes, definitely.
Q: In case she doesn't get here, let me ask you this.
Are you aware of what hardships were endured by your
daughter and Mr. Copeland's children as a result of
A: As a result she had to go on public assistance.
And it becomes very difficult for her to take on the
responsibility. She is also attending school. She
went back to school. It is very difficult for her. So
she decided to move to North Carolina. Because she
thought it would be much easier to raise the children
there and in a better environment. It is much more
conducive to them.
Q: As their grandmother, are you aware of the impact
that Mr. Copeland's deportation had on them as
A: Yes, I am very close with my grandchildren. I take
[an] active role in their lives, making sure homework
is done, making sure they are well behaved. They are
following the regulations of the home. I stay in
contact with them on a weekly basis. Sometimes daily.
They miss their father, especially Richard. Richard needs his father. He is 16 years old now. He needs a
Mar. 24, 2005 Hrg. Tr. at 43-45.
On cross-examination, the government elicited the following:
Q: Do you know when it was your daughter went on
A: She went on after Richard left. I can't remember
Q: To your knowledge, did she ever receive any public
assistance prior to the time that Mr. Copeland went
A: Yes, I think she did.
Q: Is it a fact that she was on welfare prior to Mr.
Copeland going away?
A: I can't recall. When he went away the last time
she was on welfare.
Q: When you say go away, what do you mean?
Q: That was in 1995.
Q: Did she remain on public assistance until he was
deported from the United States in 1998?
A: She went on public assistance until she moved to
North Carolina. I can't remember the year she moved,
but her daughter was about my granddaughter was
about two years old.
Q: Your granddaughter was born in 1995, is that
Q: Do you know how long it was prior to Mr. Copeland
being incarcerated that your daughter was born?
A: That his daughter was born?
A: She was only a few months.
Q: Would it have been around 1996 or 1997 when your
daughter moved to North Carolina? A: I can't recall specifically the dates.
Mar. 24, 2005 Hrg. Tr. at 45-46.
6. Aunt: Alesia Yoyo
Alesia Yoyo is the sister of the defendant's father and the
sister of Cymlyn Chambers. When asked to discuss her recollection
of the defendant at the time when he had just arrived in the
United States from Jamaica, she gave the following response:
A: Well, I was living here when he came. I was living
like a block away from my mother's house. He came and
was staying with my mom. I have two other brothers.
One is older than Richard, about three years. And one
is younger than Richard, about two years.
They all went to school together, because when he
came he [had] been going to high school in Jamaica.
When we brought him here and we took him to Board of
Education, he was very tiny for his age, he was 12
looking like a nine or ten year old. They did not
want to put him in high school.
So my mom put him in private school. He went to
Prince of Peace Parochial School, with my other two
brothers until he graduated. He was a very good kid.
He went to church with us. We had a mass choir in
church, he was on the mass choir in church.
. . . .
Q: In terms of his social situations, are you
familiar with his social personality?
A: I used to speak with him. At the time when he
came, I was in college. He was okay. He always, when
I [would] go to the house, if my mom [had] to go
away, I was the one that would take care of them.
Q: Did that occur regularly?
A: May be three times a year. . . .
Q: You would take care of Richard during that period
A: Yes. Q: Did he ever present any problems to you?
A: No, he was good. Gets up on time and goes to
school. He was good.
. . . .
Q: Did you ever become aware of any kind of work that
A: I only know that he was selling.
A: The Kirby.
Q: For the record, what is the Kirby?
A: A vacuum.
Q: Vacuum cleaners, okay.
Mar. 24, 2005 Hrg. Tr. at 51-53.
7. Defendant: Richard Copeland
The defendant provided extensive testimony in support of his
case. The following excerpts serve to capture its essence:
a. Family History
Q: So why don't we start by telling us as much as you
can about your childhood and your ultimate travel and
entering into the United States.
A: Well, I born in Jamaica. I stayed in Jamaica until
I was like 12 years old. I migrate to America to stay
with my grandmother. I went to the school next door.
After graduation I went to Lafayette High School.
Then my grandmother moved and she bought another
house and we moved over to that house. While I was
going to high school, I kind of got into the wrong
crowd and eventually me and my grandmother start
bumping heads. I start coming in late. She would, you
know, not putting up with it. Eventually when I have
was like 16 or 16 plus.
. . .
Q: Talk a little bit about your social situation,
your economic situation in Jamaica as well. Your
family situation in Jamaica. A: My mother had it pretty hard. My grandmother, my
father and my aunts, their side of the family, that
is why my grandmother adopted me and tried to make
things better for me.
Q: At least for a period of time were things better
A: Yes, it was better. To that I am grateful.
Q: So once you were in the United States in terms
[of] being in school up here and living with your
grandmother, tell us about how things were going
A: Things were going real good. She taught me a lot
of stuff, how to do it, and I just messed it up.
Q: Let's talk about that. How do you feel you messed
A: They saw so much in me and I didn't see for
Mar. 24, 2005 Hrg. Tr. at 56-57.
b. Work History
Q: Mr. Copeland, let's step aside from those issues
for a moment and focus on your family situation and
your work history. Okay? Tell us about that, if you
A: Yeah, I used to work with my uncle and sell the
Kirby vacuums. It is a situation where you work by
commission. So if you don't sell, you don't get paid,
you know. So at times it is kind of rough sometimes
when you can't even make a sale. I guess at those
times I just did other stuff.
Q: We are going get to the problems with the law in a
moment. But what, if any, other legitimate work did
A: From time-to-time I do like painting, mason work
and stuff like that.
Q: Did you do any other work for your uncle?
A: Yes, maintain the buildings.
Q: Under what circumstances was that?
A: At the same time that I was working with him.
Q: Right. But how is it that you were doing work on
other things for him?
A: Because he have buildings and I paint and make
sure the garbage is handled. And everything is covered and in order.
Mar. 24, 2005 Hrg. Tr. at 58.
c. Common Law Wife and Children
Q: Monique Brown, let's talk about your relationship
with her. How did that start and how did it progress?
A: We met in school. We went to the same school.
Q: When you say school, which school was that?
A: Lafayette High School.
Q: You met her in high school?
Q: Tell me about the relationship with her.
A: I met her in like '85. We just hit it off. We were
head over heels for each other, you know. I met her
family. I brought her to meet my family. We just kept
going every since.
Q: Did there come a point where you had children
Q: When was that?
A: We had a son July 16, 1988.
Q: What is his name?
A: Richard Copeland. And I have a daughter we had a
daughter April of 1995. That is about six months
before I got arrested the last time.
Q: What is her name?
A: Monique [Tyler] Brown.
Q: We will get to your issues with the law. Up until
the time that you were arrested what, was your
relationship Ms. Brown like?
A: It was good.
Q: And your children?
A: Everything was good. We had an apartment together. Q: You lived together?
A: I was going to school. We do everything together.
Q: In terms of supporting them what, if anything, did
you contribute to their support?
A: I supported them, with the clothing and food. We
basically had everything going as a normal family.
Q: You all lived together as a family?
Q: To this day, do you still have a good relationship
with Monique Brown?
A: We have a good relationship. Every time, twice now
I have been incarcerated. And she always been there.
She was always in touch.
Q: When was the last time you spoke to her?
Q: Last night?
Q: Your children, what relationship have you
maintained with your children?
A: Being that I am incarcerated, I try to keep as
close to them, having a conversation with them,
writing to them and stuff like that, to know that
they got a father.
Q: Do you give any advice to your son in particular?
A: Yes. My footsteps ain't the way to go. That is
what I try to tell him.
Mar. 24, 2005 Hrg. Tr. at 59-61.
d. Criminal History
Q: . . . Let's talk about your problems with the law.
Going back to your first encounter with the grand
larceny charge back in 1988. Can you tell us a little
bit about that?
A: The grand larceny charge, that is a one time I was
on a block and we had a guy that rent cars for the
guys. He rent a car for me and the car got overdue. I
got caught, I didn't know that, in the car. And they
charged me with stolen car, but later on the charges
was dropped. Q: Did you plead guilty to something in connection
A: No, it was a disposition.
Q: Disorderly conduct?
Q: You plead guilty to disorderly conduct?
Q: Which is not a crime, but a violation of the law,
is that correct?
Q: There came a time when you were arrested for
criminal possession of a weapon in the third degree.
Do you remember that? In 1989?
A: In 1989, again on the same block I was hanging out
in the building. And a lot of guys were there and
talking on the steps. The police came and entered the
building and the guys run. I was the only one that
got caught, I was at the foot of the steps. And they
found the gun and drugs up the stairs. That is how I
got charged with that.
Q: Did you ultimately pled guilty to that charge?
Q: Several years later?
A: Several years later.
Q: In 1993 were you arrested for selling drugs?
Q: What happened in that case? Did you plead guilty?
A: I plead guilty at the same time with the '95 case.
Q: Let's get to that '95 case. You were originally
arrested for attempted murder, correct?
Q: You pled guilty to possession of a weapon,
Q: Can you tell us the circumstances of how that
occurred? A: The circumstances is, in '95 I had a friend,
somewhat of an associate, he loaned me $1,000. And he
said I should pay him some interest on it. I couldn't
come up with the money to pay him. He goes on for
like months where I am like hiding from him, and
calling and sending people or whatever. And one day I
was on the Eastern Parkway and they put me up in a
car and drive me around.
Q: Who is they?
Q: Do you know his name?
A: The other friend, the guy that took me?
Q: The guy that you owed the money to.
A: His name is Derrick. We called him Track. Track is
Q: What happened?
A: They ordered me in the car. I went in the car.
They was like they are not going to do me nothing or
whatever, they just want their money. And I got to
Q: Let me just back you up a second. Prior to them
ordering you into the car that day, had there been
any contact with him regarding the money?
A: The only contact was the phone call, leaving
messages and stuff and passing by. I was like hiding
Q: You were hiding from him or trying to stay away
Q: He found you that day on Eastern Parkway?
Q: What happened?
A: I got in the car. They drove me around the block.
While I am in the car, one saying they are going to
do me in. Another one is saying just get the money or
whatever. When we went around like four blocks and
came under a stop light at Eastern Parkway and
Bedford, I make an attempt to come out of the car.
And they locked the door and the door keep locking I
open the door and come out of the car. He came out of
the car, pointing a gun. I grabbed him. Q: Who pointed the gun at you?
A: Yes. He pointed the gun at me. I grabbed the gun.
The gun go off, I think like two times. He got shot.
Then I fled the scene.
Q: Did there come a point where you were arrested?
A: I was arrested about like two months later at my
Q: At that point, there were warrants outstanding for
you with regard to the other cases, correct?
Q: And at that point, what did you do to resolve your
cases? How were all those cases resolved?
A: Well, I pled. The lawyer told me that I was going
to get time for the two prior warrants. So he had a
deal for one at four and a half. He said that was the
best thing to pled to, and having to run concurrent.
Q: You pled to?
A: Gun possession.
Q: Gun possession with regard to the incident
Q: And you plead to gun possession with regard to the
A: For all of them.
Q: What did you get for the gun possession that
A: I think a year.
Q: What did you get for you pled to attempted sale
of a controlled substance?
Q: What did you get for that?
A: That was a year, too.
Q: Was that one concurrent?
A: That was one [and] a half to four and a half. Q: Then you were sentenced to one and a half to four
and a half for the weapons possession?
Q: And all of this merged, correct?
Q: So you went to jail from your arrest on September
19, 1995. Do you remember that being the date you
Q: You remained in custody from then on until you
were deported, correct?
Q: At some point following your sentence, the one and
a half to four and a half, you were sent to the New
York State prison facility in upstate New York,
Q: What, if anything, did you do in terms of
educational or counseling programs when you got to
A: Well, I did electrical trades. I did masonry,
because I had prior knowledge of masonry. They had
like a program for violent, gun awareness. They had a
program called ART, to teach you like ten step points
to adjust your attitude or anger when confronted with
Q: Anger management?
A: Anger management program and a parenting program.
Q: Parenting program?
Q: You took a parenting program?
A: Yes, sir.
Q: In terms of masonry program, how far did you
advance in that?
A: I became a teacher in the masonry program.
Q: You appeared for a deportation hearing, you [were]
taken out of prison and brought to a deportation
hearing initially in August of '96, correct? A: Yes.
Q: At this point, let me just back up a second. You
were initially taken on August 7th of 1996, correct?
Q: But you actually had a hearing on November 27,
Q: That was the point at which you were told you that
you had no relief, is that correct?
Q: Prior to your appearing at the immigration court
for that hearing, had you had any disciplinary
infractions while you were in prison?
Q: Had you lost any of your good time?
Q: Had you been punished in any way for any
A: No sir.
Q: Prior to your appearing before the immigration
judge in either August or November of 1996, were you
already involved in these various vocational programs
and counseling programs in the prison?
A: I was.
Q: Finally, Richard, let me ask you this. Had the
immigration judge agreed to waive the deportation,
and you had gone onto be paroled from prison, what
were your plans?
A: My plan was to get back on the street and find a
job, give family support, and continue my education,
and do the right thing by my family.
Q: Had you been not deported, you would have been on
Q: And you would have had guidance and counseling
from a parole officer, correct?
A: Yes. Mar. 24, 2005 Hrg. Tr. at 61-68.
Through the course of an extensive and effective
cross-examination, of which only excerpted portions are cited
below, the defendant continued to deny his involvement in many of
the crimes for which he was convicted, but acknowledged key facts
for the first time:
A: I sell drugs on that block.
Q: You sell drugs?
Q: How long had you been selling drugs? When did you
start selling drugs?
A: I will say since I dropped out of high school.
Q: What year?
A: It was like 1988 or 1987.
Q: If it was 1987, it would be even before you turned
A: Yeah, '87.
Q: You turned 18 on November 11, 1987, right?
Q: So even before you turned 18, you were selling
drugs. And you continued selling drugs up until your
arrest on September 16, 1995, would that be a correct
A: Yes. On and off.
Q: During that time period, how many times would you
say that you sold drugs?
A: A lot.
Q: What does a lot mean?
A: For month, weeks, years.
Q: You sell drugs more than 50 times, would you say?
Q: More than 100 times?
Q: More than 500 times? A: No, I wouldn't say more than 500 times.
Q: More than 250 times?
Q: Somewhere between 250 and 500?
Q: The drugs that were there at the time of the March
22, 1989 arrest, you said there were drugs. Were
those your drugs?
A: No, those were not my drugs.
Q: What about the weapon? The loaded weapon?
A: That weapon wasn't my weapon.
Q: The drugs weren't yours, the weapon wasn't yours,
but you ended up pleading guilty, in any event?
Q: So you weren't responsible for this crime that you
were convicted of, but you ended up pleading guilty
A: It's not that I wasn't responsible for that crime,
but at the time I was selling drugs. But those
particular drugs wasn't my drugs.
Q: And the weapon wasn't your weapon.
A: The weapon wasn't my weapon. It just happened that
I am on the block, I was selling drugs at the time.
And some people, they ran. And I ended up being the
one caught with the drugs and the gun.
Q: Do you know whose weapon it was?
A: I don't know.
Q: It wasn't yours?
Q: And it was loaded?
A: It was loaded.
Q: During the six-year time period that we are
talking about, which is after the bench warrant was
issued, up until your September 16, 1995 arrest, you
were arrested on a number of other times. You were arrested on a
number of other cases, weren't you?
Q: You gave false answers to the police all of those
times, didn't you?
Q: On February 9th, 1993, you were arrested again?
Q: At that time, you told the police that your name
was Rohan Brown?
Q: And that was a lie?
Q: And you also told them that you were born in
A: No, I did not, sir.
Q: I ask you to look at Exhibit 2, page three. Next
to place of birth it says Japan?
A: That must have been some typing error or
Q: You don't recall ever telling them you were from
A: No, never.
Q: Now, in this case, the February 9th, 1993 arrest,
you were indicted on 20 counts, isn't that correct?
Related to drug sales.
A: I don't recall that, sir.
Q: I ask you to look at Exhibit 7, page six. And I
ask you if this refreshes your recollection.
. . . .
Q: Does that refresh your recollection?
A: Yes, it refreshes my recollection.
MR. PADDEN: Objection. Refresh his recollection as to
what? Unless I am missing pages here, it is splitting
hairs, I suppose, but I don't see the point of
Q: Does it refresh your recollection that you were
arrested on a multiple  count indictment related to drug sales?
Q: You were using a different name at this time?
A: Yes, sir.
Q: It wasn't until you were picked up September 16,
1995 that you ended up pleading out for this offense
as well, isn't that correct?
A: That is correct[.]
Q: October 16, 1995, you plead guilty to attempted
sale of a controlled substance in the third degree,
is that correct?
A: That's correct.
Q: I didn't hear in your testimony any indication
that you weren't responsible for this offense. Is it
fair to say that, in fact, you did possess this
amount of drugs at the time of your arrest?
. . . .
Q: Now I would like to talk about, for a moment, the
last arrest. So on September 16, 1995, you were
Q: In this case, you were originally charged with
attempted murder and first degree robbery, in
addition to the weapon possession, is that correct?
A: That's correct.
Q: At the time of your arrest, you gave your name as
Q: At that time, you indicated you were a United
States citizen, is that correct?
A: I think so.
Q: That was a lie, is that correct?
Q: The name that you gave to them, Richard Hyatt, was
also inaccurate, because that is not the name you
use, isn't that correct? A: Correct.
Q: On October 27, 1995, on your plea of guilty, you
were convicted of criminal possession of a weapon in
the second degree, is that correct?
A: That's correct.
Q: You plead guilty because on July 26, 1995 you shot
someone, didn't you?
A: July 26th?
Q: Right. July 26th was the incident date.
A: Okay, yeah.
Q: And isn't it a fact that you pointed a gun at a
man name Derrick Reynolds and demanded money?
A: No, sir.
Q: Isn't it a fact that when you pointed the gun at
him, other people stole his money?
A: No, sir.
Q: Isn't it a fact that you shot Mr. Reynolds in the
back while he was attempting to flee from you?
A: No, sir.
Q: Isn't it a fact that after you shot him, he fell
to the ground and you stood over him and shot him in
the the throat?
A: No, sir.
Q: Are you aware that Mr. Reynolds was paralyzed from
A: I knew he was hurt pretty bad. But I heard he
Mar. 24, 2005 Hrg. Tr. at 79-83, 85-87.
8. Immigration Judge: Keith Williams
Keith C. Williams, an experienced immigration judge called by
the government, provided useful background information on section
212(c) determinations along with a persuasive analysis of the
Q: What is your occupation? A: I am in the private practice of immigration law.
Q: How many years have you practiced law?
A: [In] total, for approximately 32, 33 years.
Q: What year did you graduate law school?
A: I graduated law school in 1972.
Q: What was your first job out of law school?
A: I worked for a small company outside of Chicago
called the Duall Corporation, as in-house corporate
Q: What was your next job after that?
A: Then I was hired by the United States Justice
Department, specifically the Immigration and
Naturalization Service, to be a naturalization
Q: What were your duties and responsibilities as a
naturalization examiner with the INS?
A: I interviewed and examined applicants for
citizenship and their witnesses to determine whether
or not they met the statutory requirements for
Q: And did [there] come a time when you received a
promotion at the INS?
Q: When was that?
A: In 1977 I was appointed to be the Deputy Assistant
Commissioner for Naturalization in Washington, D.C.,
in the INS headquarters.
Q: What were your duties and responsibilities as
deputy to the Assistant Commissioner?
A: I was one of two assistants to the Assistant
Commissioner, who was the official in charge of the
naturalization program nationwide.
Q: Did there come a time when you received another
promotion with the INS?
A: Yes. It was sort of a backhanded promotion, in
that my boss was promoted. I took over his function
in an acting capacity for approximately two years.
Q: What was his position?
A: He rose to the level of Associate Commissioner for
Adjudication, which is two steps down below the Commissioner of the INS.
Q: So you were the acting Assistant Commissioner?
A: I was the acting Assistant Commissioner for
Q: What were your duties and responsibilities as the
acting Assistant Commissioner for Naturalization?
A: Basically to prepare the annual budget, to testify
before Congress on naturalization matters, to
administer in all respect[s] the naturalization
program, including the hiring, firing and transfers
and what not of the personnel.
Q: Did there come a time when you left the
Immigration and Naturalization Service?
A: Yes. In 1983, when the naturalization division, a
separate entity, was merged into the then
adjudications division, I was offered a judgeship
with the newly formed executive office for
immigration and review, another component of the
Q: Where were you offered that judgeship?
A: In Chicago, Illinois.
Q: What year did you start work as an immigration
judge in Chicago?
A: In January of 1983.
Q: How long did you serve in Chicago?
A: Until January 1984.
Q: Where did you serve next?
A: Then I voluntarily transferred to the Chrome
Service Processing Center the INS Detention Center
outside of Langley, Florida.
Q: How long did you serve there?
A: I was at the Chrome Detention Center for
approximately five and a half years.
Q: For how long a time period did you serve as an
A: In total as an immigration judge, including the
Chrome, Downtown Miami and Chicago, for approximately
20 and a half years.
Q: When did you leave the bench?
A: July of 2003. Q: Now you're in private practice?
A: Yes, I am.
Q: And you are doing immigration law in private
Q: During the time that you were working as an
immigration judge, did you hear cases in any other
cities other than Miami?
A: Yes, I heard cases in half a dozen or more of the
state prison facilities around the state of Florida.
I heard cases in San Juan, Puerto Rico. I heard cases
at 26 Federal Plaza here in New York City. I heard
cases in Connecticut State Penitentiary, as well as
Danbury Federal Correctional Institution.
Q: What are the duties and responsibilities of an
A: [An] [i]mmigration judge is charged with
administering the authority that is granted to the
Attorney General through the Immigration and
Nationality Act, and delegated to immigration judges
to conduct deportation exclusion hearing[s] and now,
since the Illegal Immigration Reform and
Responsibility Act of 1997, what [are] now called
removal hearings, but essentially the same thing.
Q: Did these cases ever involve the adjudication
applications for waivers of deportation?
A: Yes, quite often.
Q: What type of application for waivers of
deportation did you adjudicate?
A: I adjudicated applications under Sections 212(c)
and 212(h) and 212(i) of the Immigration and
Nationality Act. As well as application for
suspension of deportation, under former Section
244(a)(1) of the Act. Political asylum applications.
And also applications for cancellation of removal
subsequent to the arrival.
Q: During the time period that were you an
immigration judge, how many times were you called
upon to conduct 212(c) hearings?
A: Hundreds of times.
Q: Are you familiar with decisions of other judges
regarding 212(c) waivers? A: Yes, of course. Judges discuss these things
Q: And you've read decisions by immigration judges?
A: I have read the decisions of the judges, as well
as of the Board of Immigration Appeals.
Q: What is the Board of Immigration Appeals?
A: The Board of Immigration Appeals is a separate
component of the executive office for immigration
review, which is essentially the first level, the
first administrative appellate.
Q: You are familiar with their decisions as well?
Q: Will you just briefly explain what a 212(c) waiver
is and who is eligible for it?
A: A 212(c) waiver is a waiver that is available to
long-term permanent residents of the United States.
The law requires that they have been permanent
residents for a period of at least seven years,
lawfully admitted to the United States. And who, if
for one reason or another, were subject to
deportation from the United States, they could apply
for this waiver and perhaps, if granted the waiver,
would be allowed to remain residents of the United
States, notwithstanding the fact that they remain
subject to deportability under the law.
Q: Who is not eligible for a 212(c) waiver?
A: Well, among other people who are not eligible, are
people who haven't resided in the United States for
the statutory period. People whose residency may not
be seen as lawful, because there might be some
blemish, perhaps, on their manner of having been
granted residency. People who have been convicted for
certain types of offenses. Some people who have been
convicted for what are called aggravated felonies
under Section 101.843 of the act. All persons who
have been convicted for firearms, weapons offenses.
Q: Judge Williams, what procedures
. . . .
In November of 1996, what procedure would have been
followed for conducting a 212(c) hearing?
A: Well, the procedure basically would be that the
applicant, and most of them were represented by
counsel, but whether or not they are represented by
counsel, would have the opportunity to testify, to
bring in witnesses, much the way it is done today. To
present evidence, documentary evidence on his own
behalf. The Immigration and Naturalization Service,
the former Immigration Service, could also bring in
any documentary evidence or witnesses that they might
have concerning his eligibility for 212(c) relief,
either statutorily or in the exercise of the Court's
Q: In November of 1996, what standard would have
applied in terms of adjudicating a 212(c) waiver?
A: The standard was the standard outlined in
[Matter] of Marin which is a Board of Immigration
Appeals decision, that is cited at 16 I&N decisions
581 (BIA 1978). In the Matter of Marin, the
instructions were given to the immigration judges
that said essentially that an immigration judge was
charged with balancing adverse factors of record
evidencing an alien[']s undesirability as a permanent
resident of the United States, with any social and
humane considerations that were presented on his
behalf, in order to determine whether or not his
continued residency in the United States was in the
best interest of the country.
Q: So the bottom line determination at the end of the
day is whether the alien being present in the country
is in the best interest of the country?
Q: What are the factors that a court would look at,
in terms of making such a determination?
A: The factors are many of the factors are also
outlined in the Matter of Marin. The court would
look on the positive side of the scale, at such
considerations as family ties in the United States,
residence of long duration in this country, whether
or not he served in the military, employment history,
property or business ties to the community, any
community service, any other evidence that might bear
on his good moral character. On the negative side, the court
would look at the exclusion ground [at] issue, the
presence of a criminal record, if so its nature, its
recency, its seriousness. And any other evidence that
might bear on poor moral character or might
demonstrate a person's undesirability as a permanent
resident for the United States.
Q: In adjudicating a 212(c) application, how would an
immigration judge go about balancing all of those
A: Well, it is a difficult and sometimes tedious
process. But the judge basically, and I as I used to
explain to pro se applicants, imagine the scale of
justice. On the one hand places all of the positive
factors given and it is up to the judge to give
those factors appropriate weight. On the other hand,
the negative factors. Also, the judge has to give
appropriate weight on the opposite side of the scale.
And basically we see how it balances out. The last of
the factors that a judge normally considers is the
issue of rehabilitation. Because an immigration judge
really does not want to get down to the bottom line
and allow to remain in the United States somebody who
is likely to continue with criminal activity.
Q: Is it significant in the determination if the
applicant is a repeat offender?
A: Yes, it is very significant.
Q: For repeat offenders, is it significant if the
crimes are getting more serious?
A: That is also very significant.
Q: Is it significant if the crimes involve violence?
A: Yes, of course. Violent crimes are certainly not
only [malum per se], if you will, but are certainly
against our public policy and detrimental to our
Q: Is it significant if the crime involves drugs?
A: The same could be true of drugs. And Congress has
seen fit to accord drugs especially harsh treatment
under the immigration laws.
Q: Is it significant if the crimes involve weapons?
A: Yes, it is, as well.
Q: What about a loaded weapon? A: The loaded weapon demonstrates if not violence,
certainly the potential for imminent violence
involving a weapon.
Q: Would you consider it significant if a person gave
false names and Social Security numbers at the time
A: That would go into those other factors evidencing
an alien's undesirability as a permanent resident. It
indicates that this is a person who cannot conduct
himself and comport himself in accordance with the
law and morality.
Q: You spoke earlier about the issue of
rehabilitation. Is that a significant issue?
A: Yes, it is.
Q: How do you evaluate that issue?
A: You basically take into account events subsequent
to the criminal activity. The efforts made by
somebody to better themselves. Their family support
system and how effective that family support system
might be, in order to assist them. But what you are
really looking for is to see whether or not somebody
has turned a corner in their lives and maybe
embarking on a different path.
Q: If the person has been convicted of a number
crimes over a number of years, is that something that
is relevant in terms of the rehabilitation
A: Certainly. Because the more the heavier the
[negative] factors become, the more positive factors
have to be introduced to counterbalance those. And
certainly a much greater showing would have to be
made before a judge could conclude that somebody with
a long criminal history has been rehabilitated.
Q: What if the person was in prison during the time
in which he was required to show rehabilitation?
A: The fact of incarceration does not preclude
somebody from showing rehabilitation under the law.
But in my view, it is more difficult for somebody to
demonstrate rehabilitation while they are in a
Q: Is the issue of residence in the United States at
an early age and for a long duration significant?
A: That is also something that is taken into account.
The question, of course, is what is long duration? Long duration would be a relative
thing. If somebody entered the United States at the
age of two or three and have been in the United
States for five or six years, at that point they have
lived in the United States more than half their
lives. That would certainly be of long duration. On
the other hand, somebody who came to the United
States at the age of 15 and was here for 10 years,
that might not be seen as such long duration, because
it is relative to the person's age and the length of
Q: Is the issue of employment significant?
A: The issue of employment is very significant. It
demonstrates stability. It demonstrates contributing
to one's own family. And it is something that we
expect of people who are able to support themselves.
Q: Is the issue of filing taxes significant?
A: The issue of filing taxes is significant, because
the failure to file taxes or to pay taxes or to file
tax returns, indicates that one is, once again, not
doing what the law requires that they do.
Q: Judge Williams, you've had a chance to sit here
and listen to all of the testimony, is that correct?
A: Yes, sir.
Q: You had a chance to review all of the exhibits
submitted into evidence, is that correct?
A: I have as well.
Q: Have you formed an opinion on whether in 1996,
November 1996, Mr. Copeland would have received a
grant of 212(c) relief?
MR. PADDEN: Objection, Your Honor.
THE COURT: I will allow it.
THE WITNESS: Yes, I have formed such an opinion.
Q: What is that opinion?
A: My opinion is that his case would have [been] an
exceedingly weak case for 212(c). And that in the
exercise of discretion, I believe, would have been
denied. Q: What do you base that on?
A: Based on the facts as they existed in 1996, as
well as the law as it existed in 1996.
Q: What do you base your opinion on?
A: I base my opinion essentially on the methodology
that I explained earlier. And that is, a balancing of
the favorable and unfavorable factors. The thought
process that a judge goes through in a 212(c) hearing
is one of constantly bouncing back and forth between
the positive and negative side of the ledger. And
I'll give you [a] for instance. In this particular
case, the positive side of the ledger is the fact
that he came here at the age of 12. He had been in
the United States by the time the 212(c) hearing for
more than half his life. But on the other hand, half
of that period of time he was, by his own admission
and certainly according to the record, engaged in
serious criminal activity. So it's an on this hand
sort of thing, and then you go on the other hand, but
then on the other hand and on the other hand, until
you basically run out of considerations.
Q: So what other factors did you consider in coming
to your opinion that Mr. Copeland's case would have
been exceedingly weak?
A: I considered his criminal history to be extremely
serious. I consider the fact that it was increasing
in seriousness as time went on. I consider, based on
his own testimony, the fact that he sold drugs
between 250 and 500 times, which I consider to be
quite serious. On the other hand, I considered his
family ties. Certainly his family appear[s] to think
well of him. Their testimony, however, appeared to be
somewhat lukewarm in their support. In a way, it was
mostly opinion testimony. It didn't really provide
specific facts that a trier of fact could grasp on. I
also see a family, who while supportive of Mr.
Copeland, seems to have failed to come to grips with
the gravity of his criminal misconduct. Whenever
questions were put to them about that, they indicated
either ignorance of that fact or tried to minimize
Q: What about strike that. Did the issue of
employment have any relevance to your decision? A: It is a factor, it is not the determinative
factor. But certainly the lack of employment would
demonstrate, in my view, solid employment, long-term
employment, that while he has two United States
citizen children, that he is not really in a position
to be financially supporting those children [to] a
large extent. And therefore, his deportation from the
United States would not cause them any particular
Q: What about his admission of using false names and
Social Security numbers upon arrest? Would that play
any role in your decision making process?
A: Once again, it is cumulative. It goes to the other
negative factors. And it certainly would indicate to
me that the applicant for 212(c) relief is somebody
who simply is not a person of moral character, who
has lied, who absconded, who provided false evidence,
false testimony to law enforcement officers, who when
granted probation, violated that probation. This is
just generally speaking, not somebody who is obeying
the laws of the United States.
Q: What about the issue of rehabilitation? Did you
make any determination in regard to that factor?
A: I did. And I considered on the positive side of
the ledger the fact that he attended certain courses
THE COURT: Go ahead. Finish your answer.
THE WITNESS: However, considering the fact that his
criminal activity began, by his own admission,
sometime in '87 or '88 and continued onto at least
the time of his incarceration in 1995, were I hearing
a 212(c) case in late 1996, balancing that one-year
period of time and those attainments during that
relatively short period of time, and balancing that
against the serious nature of an extensive nature of
his criminal record, I would have to find that even
though he might have embarked on rehabilitation, that
he was not at the time of the hearing rehabilitated,
and not somebody who I would particularly trust to
continue to stay out of trouble if allowed to remain
in this country.
. . . .
Q: Based on your familiarity with the opinions of
other immigration judges and your familiarity with
the BIA decisions, do you have an opinion [of] how
others would have adjudicated the defendant's
MR. PADDEN: Objection.
THE COURT: I will allow it.
THE WITNESS: I think that any reasonable immigration
judge would deny this application.
Q: The defendant has offered in a letter to the Court
strike that. The defendant has indicated in a
letter to the Court that there is information that in
the past over 50 percent of applications for 212(c)
relief were granted. Does that information change
your opinion at all?
A: No, it doesn't. Because even were there 50 percent
granted at that time, Mr. Copeland's case would have
been within the 50 percent that was denied, I am
MR. DUNN: No further questions, Your Honor.
Q: Is it okay to call you Mr. Williams or should I
call you Judge Williams?
A: Either is okay.
Q: You said you presided over hundreds of 212(c)
Q: In which waiver was sought? Do you have any sense
of your own experience as to how many applications
were granted percentage wise?
A: In my own courtroom?
A: My sense is that it was considerably less than 50
Q: So your personal experience is that you would have
granted less than A: I will explain to you why. A great many of the
212(c) applications that I heard, because I was
assigned to the Florida state prison circuit, and
because I was at the Chrome Service Processing
Center, [were] in a custodial setting. And as I
indicated earlier, frankly it is harder for people to
demonstrate that they have been rehabilitated when
they really haven't had the chance to get out on the
street and prove it.
Q: Let me ask you this, then. First of all, I take it
you didn't do any hearings in the New York State
Q: Just the 26 Federal Plaza?
Q: And that was did that involve strike that. Let
me ask you this. Do you think it is possible that
someone who, after committing three crimes, albeit
serious, can go to prison for the first time, spend
three years in prison, involve themselves in every
available vocational, educational and counseling
program, come out with a parole officer supervising
them, turn their life around and lead a productive
. . . .
THE WITNESS: It is certainly possible.
MR. PADDEN: That is all that I have, Judge.
THE COURT: Well I have just a few questions, Judge.
This is somewhat subjective, is it not?
THE WITNESS: There is a certain amount of
subjectivity in it. The adjudication of this is
certainly not with mathematical formula.
THE COURT: So there are some variations among the
THE WITNESS: There certainly are.
THE COURT: Is it possible for you to put in terms of
probabilities how probable it would have been, at the
time of this hearing and shortly thereafter, that a
judge would have granted a 212(c) application? THE WITNESS: Based on these facts, I would consider
it to be highly improbable that a judge would have
granted a 212(c).
THE COURT: Can you quantify that?
THE WITNESS: You mean percentage wise?
THE COURT: Yes.
THE WITNESS: Well, let me answer that a slightly
different way. Judges can disagree amongst themselves
as to Judge A would have granted it, Judge B would
have denied it. But those are usually judges that
fall within a permissible center. I mean, there is no
absolute correct answer, but there is the permissible
middle. In this particular case, I think that these
facts fall outside of that permissible middle. It is
my belief that even were 80 percent applications
granted, that this would nevertheless be in the 20
THE COURT: So it is more than a preponderance, as an
estimate of the probability of denial? . . . I am
asking you about the probability of a grant, given
these facts. As I understand it, it is at least more
probable than not that it would not have been
THE WITNESS: Yes, I will agree with that.
THE COURT: It is highly probable that it would not
have been granted, [defining] highly probable in the
order of 80 percent or so?
THE WITNESS: Yes, I could also say that.
THE COURT: Is it beyond a reasonable doubt probable
[where] the finding of reasonable doubt is 90 percent
THE WITNESS: I think I would be hard pressed to say
THE COURT: But at least the standard that could be
applied here is clear and convincing evidence, which
is somewhere in the order of 75 or 80 percent. And
you would find then by clear and convincing evidence
that it would not have been granted? THE WITNESS: Yes.
THE COURT: Any further questions?
MR. PADDEN: No, Judge.
MR. DUNN: No, Your Honor.
THE COURT: Thank you, sir.
MR. DUNN: Thank you, Judge.
Mar. 24, 2005 Hrg. Tr. at 111-33.
After all was said and done, this experienced administrative
judge provided a cogent answer to the question of the Court of
Appeals: by a standard of clear, unequivocal and convincing
evidence, section 212(c) would not have been afforded defendant.
V. Application of Law to Facts
A. Balancing Factors
This is a troubling case, in part because it involves a
non-citizen with a serious criminal record. More troubling still
is that the United States Court of Appeals for the Second Circuit
has asked the district court to determine not what did happen,
or what likely happened but what might have happened had the
defendant been permitted to seek section 212(c) relief.
The relevant time period for the prejudice inquiry is November
27, 1996, the date of the fundamental procedural error in
defendant's deportation proceeding. See United States v. Scott,
394 F.3d 111, 119 (2d Cir. 2005) ("[T]he district court should
reconstruct events as they existed at the time of the disputed
deportation proceeding, without considering future
As described in Part III.C, supra, potential adverse factors
include the nature and circumstances of the exclusion ground at
issue, the presence of additional immigration law violations, the existence of a criminal record and its nature,
recency and seriousness, and the presence of other evidence
indicative of an alien's bad character or undesirability as a
permanent resident. Possible favorable factors include family
ties within this country, residence of long duration in this
country, arrival in the country at a young age, evidence of
hardship to the alien and the alien's family upon deportation,
Armed Forces service, employment history, community service,
property or business ties, other evidence attesting to good
character, and, in the case of one convicted of criminal conduct,
proof of genuine rehabilitation.
Given the gravity of the defendant's criminal record, he almost
certainly would have been required to demonstrate the existence
of unusual or outstanding countervailing equities in order to
obtain section 212(c) relief. There is no question that in 1996,
serious drug crimes, particularly those involving sale or
trafficking, triggered significantly stricter scrutiny, and
required a showing of unusual or outstanding equities before
discretionary relief would be considered. See, e.g., Matter of
Burbano, 20 I. & N.Dec. 872, 878 (BIA 1994) ("[A]n alien who has
committed a serious drug offense will face a difficult task in
establishing that he or she merits discretionary relief. The
detrimental effect on society resulting from drug violations has
been consistently recognized by Congress in the clear
distinctions that have been drawn between drug offenses and other
crimes. . . ."). In fact, at one point, the BIA was forced to
rebut suggestions that it would not grant relief to individuals
convicted of drug crimes: "We emphasize that this observation
should not be taken as an indication that the Board will never
award relief to an alien convicted of a serious drug offense."
Id. at 879.
The necessity of demonstrating unusual or outstanding
equities is not exclusively triggered by serious
crimes involving controlled substances. . . . One
must examine the gravity of the offense, per se. In addition, such a showing may be
mandated because of a single serious crime, as in
Marin, or because of a succession of criminal acts,
which together establish a pattern of serious
criminal misconduct. . . .
In regard to the adverse factors in this case, we
note that the respondent, an admitted drug user, has
been convicted of two serious offenses, one involving
the attempted sale of heroin, and the other entailing
attempted robbery, in which firearms were carried and
an innocent bystander physically restrained. We
further observe that the second crime was committed
while the respondent was still under probation for
his first offense. Given the serious nature of these
crimes and their relative recency, it is necessary
for the respondent to demonstrate unusual and
outstanding equities in order for a favorable
exercise of discretion to be considered.
Matter of Buscemi, 19 I. & N. Dec. 628, 633-34 (BIA 1988).
2. Adverse Factors
Like the defendant in Matter of Buscemi, the defendant's
criminal record included a serious drug offense based on the
attempted sale of a controlled substance, and an offense
involving a firearm and an innocent bystander, who in the
defendant's case was not only restrained, but shot and paralyzed.
That crime occurred on September 16, 1995, just over a year
before the defendant's immigration hearing.
The question of whether the equities presented in the
defendant's case suffice to meet the "unusual and outstanding"
standard need not be reached. Even if the defendant were not
required to make such a showing, the court finds by clear,
unequivocal and convincing evidence that he would not have
obtained relief. He has failed to establish sufficient ordinary
equities, much less extraordinary equities, that would have led
immigration judge to determine that it would be in the best
interests of the United States to grant him relief, given his
extraordinarily serious criminal record. A balancing of the
relevant factors in this case supports the conclusion that there
is no reasonable probability that the defendant would have received
section 212(c) relief, had he been given the opportunity to apply
a. Nature of Exclusion Ground at Issue
The nature and circumstances of the defendant's exclusion
ground amount to a significant adverse factor. The basis for
defendant's removal is his conviction for a drug-trafficking
offense. At the time of the defendant's deportation it was
well-established that trafficking in drugs was a serious crime,
which could, given the particular facts and circumstances of a
case, justify the denial of discretionary immigration relief. The
United States Court of Appeals and the Board of Immigration
Appeals had both signaled that drug crimes were of particular
concern in immigration determinations. See Part III.D, supra.
b. Presence of Additional Immigration Law Violations
It is unclear whether the defendant's repeated use of false
identifying information would have been counted as an additional
immigration law violation or as evidence of bad character. To
avoid "double counting" this information, it seems reasonable to
assume that an IJ would have treated this information as evidence
of bad character rather than considering it as proof of
additional immigration law violations.
c. Criminal Record and its Nature, Recency, and Seriousness
In the defendant's case, the adverse factor of criminality
includes, in addition to the drug trafficking conviction, two
firearms convictions along with the defendant's admitted sale of
drugs on more than 250 occasions. Firearms convictions, like drug
convictions, would have been given considerable weight in
determining whether the defendant's remaining in the United
States would have been in the country's best interest. The
offense conduct underlying one of the firearms convictions, moreover, included the defendant's
paralyzing a victim with a shot to the throat. The recency of his
serious criminal conduct to the deportation hearing would have
been an important factor. See, e.g., Matter of Salmon, 16 I. &
N. Dec. 734, 737-38 (BIA 1978) ("We [have] observed that confined
aliens and those who have recently committed criminal acts will
have a more difficult task in showing that discretion should be
exercised in their behalf than aliens who have committed the same
offense in the more distant past."). The defendant's criminal
conduct also appeared to be increasing in severity over time. His
testimony at the hearing would have suggested to a reasonable
immigration judge that it was his drug trafficking activities
that led to the shooting of the defendant's "associate." To allow
a violent drug dealer to remain in the country would have been
difficult to justify.
At the March 24, 2005 evidentiary hearing, the government
introduced a useful chart chronicling key details of the
defendant's serious criminal record: [EDITORS' NOTE: CHART IS ELECTRONICALLY NON-TRANSFERRABLE.] d. Presence of Other Evidence of Bad Character
On multiple occasions the defendant provided authorities with
false information in an effort to conceal his identity, at the
peril of innocent parties. He fled in violation of court orders
so that arrest warrants had to be issued for his capture. The
defendant remained a fugitive for years, despite his knowledge
that he was wanted by the authorities, and thereby thwarted
efforts by law enforcement to bring him to justice on serious
pending charges. His consistent efforts to obstruct justice
complete the overall picture of someone whose continued residence
in the United States would not have appeared to virtually any
immigration judge to be in the country's best interest.
Telling was his continued evasiveness at the March 24, 2005
hearing. The defendant's energies were directed more toward
denying crimes to which he had pled guilty than in demonstrating
that he merited relief on the basis of his positive factors. His
evasiveness was marked to the point that his testimony could have
been largely disregarded as deceptive. At one moment in his
cross-examination, for instance, he testified as follows:
Q: Other than the four crimes that you were convicted
for, and the 250 and 500 times that you sold drugs,
did you commit any other crimes?
A: I have probably committed other things that I
didn't get caught for.
Q: For example?
A: Selling drugs.
Q: Other than selling drugs?
A: No, that is about it.
Q: What about possessing a weapon?
Q: You never possessed a weapon? A: I never personally owned a weapon. But at the
time, I knew how to get a weapon.
Q: Okay. Did you ever get a weapon?
Q: Did there ever come a time where you were
[possessing] a weapon? At any point in time from your
arrival in the United States to your deportation in
1995 to your arrest in 1995, did you ever possess a
A: I think after the [shooting] incident, because I
kinda figured his friends would retaliate against me.
Q: Up until that point you never even held a weapon
in your hand?
A: Yes, I held a weapon before.
Q: Why had you held a weapon in your hand?
A: Because I knew people who had weapons.
Q: And your work was scary. Is that why you held it?
A: If I was scared?
Q: I'm sorry. Let me backtrack. You held weapons in
your hands because people who you knew gave you the
weapons to hold, is that your testimony?
A: Yes. Guys, they would show their weapons and talk
and all that. That would be for a few incidents where
I would hold a weapon.
Q: But you never carried a weapon around for your own
Q: And the first time you did that, according to your
testimony, was after this July 26, 1995 incident.
Q: And then you carried a weapon around?
Q: Was that a weapon that you were legally permitted
to carry around or no?
A: No, sir.
Mar. 24, 2005 Hrg. Tr. at 93-94.
A cursory examination of the transcript in this case provides a
significant glimpse into the balancing of factors. The defendant's criminal history takes up
the lion's share of space, and even within his own testimony, the
majority is spent nitpicking the details of his criminal acts,
rather than providing a sense of his family relationships or of
The defendant's deceptiveness suggests a lack of remorse for a
criminal history that is exceptional even when compared with the
serious criminal histories of similarly situated defendants. He
cannot hope to demonstrate rehabilitation when he will not
concede that his criminal acts necessitated a change in conduct
and attitude. See, e.g., Matter of Coelho, 20 I. & N. Dec. 464,
470 (BIA 1992) ("During his testimony at the deportation hearing,
the respondent was unwilling to give straightforward answers in
response to the Service's questioning. The respondent did not
express any remorse and was unwilling to provide details
regarding his cocaine transactions."). When confronted with his
repeated lies to law enforcement and his failure to comply with
judicial orders in the form of aliases and absconding the
defendant's demeanor was dismissive, and he confirmed this
behavior without a sign of concern. See, e.g., Mar. 24, 2005
Hrg. Tr. at 85 ("Q: That was a lie [to law enforcement], is that
correct? A: Sure.").
The final indicator of bad character that the court considers
for purposes of determining whether the defendant's continued
residency in the United States would have been deemed desirable
by an immigration judge, is the devotion of his high
intelligence, noted by all who testified on his behalf, to
criminal enterprises. The defendant, by all accounts, was a
gifted youth. Because of his intellectual achievements, he was
afforded an opportunity to come to the United States from Jamaica
to pursue his education. One of the relatives who submitted a
letter on his behalf, but did not testify at the hearing,
described his opportunity as follows: Ritchie was often described as being bright and
having outstanding potential. . . . My grandmother, a
very proud, godly woman brought Ritchie, my uncle's
son, as a child to America from our native Jamaica.
She envisioned a better opportunity for her whole
family here and despite the tense environment in
Jamaica[,] she spotted great potential in Ritchie. I
think in striving for a better life, both my
grandmother and Ritchie crossed paths. In making his
choices, he lost her faith and respect. . . .
Jul. 24, 2002 Ltr. of Kimerliann Chambers at 1. The rest of his
family, from their appearance and testimony at the hearing, has
worked hard and done well both in Jamaica and this country.
Rather than taking advantage of the great opportunity he was
given, based on his natural intellectual abilities, the defendant
before the age of 18 began turning those abilities to a life
of crime. While the standard of Alexander Hamilton, who was sent
to the United States from a Caribbean island to pursue his
education, cannot be the benchmark, still, the defendant's
failure to take advantage of his good fortune is striking.
The defendant's squandering of his opportunity and putting his
talent to criminal use do not suggest a person that an
immigration judge would have looked upon favorably. This
conclusion was further reflected in the defendant's strategic
deceptiveness during the hearing and his lies to law enforcement
when arrested. See, e.g., Mar. 24, 2005 Tr. at 61 ("Q: Did you
plead guilty to something in connection with that? A: No, it was
a disposition. Q: Disorderly conduct? A: Yeah. You plead guilty
to disorderly conduct? A: Yes."). It also suggests that the
defendant should have known that when he lied to law enforcement
about his name, social security number, and other identifying
information, he was acting improperly.
3. Positive Factors
a. Family Ties It does appear, based on the testimony before the court, that
the defendant shared a meaningful relationship with his common
law wife, with whom he has been since high school. The court
credits the allegation of Beverly Lovell, the grandmother of his
children, that Monique Brown wished to attend the hearing. Her
failure to testify will not be considered an adverse factor, and
her relationship with the defendant, as indicated above, is
deemed a positive factor. Monique Brown's letter to the court
indicating her support for the defendant is also considered
My name is Monique Brown[.] I have two children by
Richard Anthony Copeland. Their names are Richard
Copeland Jr. and Tyler Brown[.] Tyler is seven years
old and [Richard] is fourteen and both are in need of
Richard is a family man, he is very kind hearted and
puts people before himself. Richard has always been
there for his children mentally, financially and
physically. He is much needed where my children are
concerned. I've been a single mom for almost six
years, which has been very difficult.
Jul. 30, 2002 Ltr. The court assumes that Ms. Brown would have
provided live testimony similar in substance to that submitted in
her letter on the defendant's behalf.
Other testimony indicated that the defendant is close to his
son, Richard Copeland, Jr. and wishes to be a part of his life.
Richard Copeland, Jr.'s letter is taken into consideration:
I am Richard Anthony Copeland Jr. My father is very
kind. He's always giving things to people that really
need it. I remember he use[d] to take me and my
sister Tyler to the movies and the mall. He was a big
asset to my family. My dad used to help me with my
homework, and pick me up from school when my mom
use[d] to work at KCA and couldn't pick me up from
football practice. My dad took Tyler and I to
Kissimmee, FL to take us to Disney World. I really
miss my dad can you please let him out.
Undated Ltr. The testimony demonstrated that, because of his incarceration,
the defendant was never able to develop a close relationship with
his daughter, who was born just before he went to prison.
The court considers as a part of the "family ties" positive
factor the fact that many members of the defendant's family came
to testify on his behalf, in addition to providing letters of
support. Letters were provided by numerous individuals who did
not attend the hearing. The court gives those letters substantial
The testimony of his family members and the letters submitted
on his behalf, however, ultimately gave the impression of a
family that felt obliged rather than eager to defend one of its
members. The court is in agreement with Keith Williams, the
seasoned immigration judge called by the government as a witness
in the case, who accurately described the defendant's family
support as "lukewarm." While it is true that the defendant has
significant family ties in the United States and apparently few
ties in Jamaica, he does not appear to be especially close to his
extended family, and it seems likely that this factor would not
have carried the day in a section 212(c) determination.
b. Residence of Long Duration
The defendant argues that his residence in the United States
has been of long duration, beginning when he entered the United
States in 1982 at age 12. While the defendant had resided in the
United States for over fourteen years by the time of his
deportation proceeding, his length of residence would have been
entitled to significantly less weight because it was "marked by
participation in criminal activity." Douglas v. INS,
28 F.3d 241, 245 (2d Cir. 1994) (giving non-citizen's twenty-year
residence little weight due to criminal activity). His narcotics
trafficking, by his own admission, began before he turned 18. By the time of
his deportation proceedings, more than half of the defendant's
time in the United States had been marked by serious criminal
c. Arrival at a Young Age
The defendant entered the United States at the age of twelve.
His arrival at a young age would have constituted a positive
factor to be considered on his behalf. As with his positive
equity relating to residence of long duration, the defendant's
criminal conduct at a young age would have undermined the
positive equity relating to arrival when he was young. It is
nevertheless a factor that would have been weighed against
d. Hardship to the Alien and His Family
There is very little evidence that the defendant's deportation
would cause financial hardship to his family. There is no
evidence that he ever provided legally obtained substantial
financial support to his common law wife and children. Support
provided appears to have come from his illegal drug-dealing
There is no question that deportation will cause emotional
hardship to his immediate family. He will no doubt be missed by
his common law wife and the son with whom he apparently was able
to form a solid relationship. He has not lived with either of
them since 1995, however, and so this separation, while greater
in distance, will not radically alter the status quo. The
banishment of a non-citizen from the country and the separation
of a family is always a significant factor, particular when the
family includes young children who need the love and support of
their parents. In this case, however, an immigration judge likely
would have concluded that the defendant's egregious disrespect
for the laws of this country amounted, on some level, to disrespect for the family that would ultimately be
There is no evidence that the defendant will have great
difficulty residing in Jamaica. Nevertheless, the court assumes
he will have problems earning a livelihood there. His
deportation, as in the case of many like deportations, has a
tendency to increase crime abroad, but this is not a factor an IJ
would have considered.
e. Armed Forces Service
The defendant was never a member of the United States Armed
f. Employment History
The defendant's legal employment history is not sufficient to
merit consideration. See, e.g., Arango-Aradondo v. INS,
13 F.3d 610, 613 (2d Cir. 1994) (noting non-citizen's sporadic employment
record and failure to pay taxes); Vlassis v. INS, 963 F.2d 547,
550 (2d Cir. 1992) (deeming employment record suspect where
non-citizen claimed that he was paid "off the books" by family
members). Though the defendant allegedly assisted his uncle with
various properties and in his vacuum sales business, there is no
written record of this work, and it appears to have been at best
sporadic. By his own admission, the defendant's most consistent
"work" took the form of hundreds of illegal drug sales.
g. Community Service
There is no evidence that the defendant ever engaged in
h. Property or Business Ties
There is no evidence that the defendant possessed any property
or business ties in the United States for purposes of
establishing that his remaining in the country would be in the
best interests of the United States. i. Other Evidence of Good Character
There is no other evidence of good character that an
administrative judge would have been able to consider. The
testimony and letters of several of the defendant's family
members were relatively devoid of evidence of good character
except for general statements that he was a "nice" or "loving"
man. There was almost no anecdotal evidence of good character,
apart from what has already been considered as a positive factor
in connection with his behavior as a father and a partner of his
While rehabilitation is not a prerequisite to relief, it is a
factor an IJ would have considered seriously, particularly in a
case involving a substantial criminal record. Viewed from the
perspective of an adjudicator in 1996, the defendant had been
committing increasingly dangerous crimes since 1989, and had
committed a violent weapons offense as recently as 1995. It is
unlikely that he would have been able to produce convincing
evidence of rehabilitation at his 1996 hearing, despite his
participation in anger management, parenting, and masonry
programs while incarcerated.
The defendant's three strongest positive equities were his
family ties, his residence of long duration in the United States
and his arrival at a young age. In some cases, these factors have
been deemed "unusual and extraordinary." See, e.g., In re
Catalina Arreguin de Rodriguez, 21 I. & N. Dec. 38 (BIA 1995)
(finding that unusual or outstanding equities included nearly 20
years of lawful residence and two minor United States citizen
children). An immigration judge may even have deemed them
"extraordinary" in this case. Given the force of the defendant's negative factors, however, even if he had not been required to
meet the threshold for "unusual and outstanding" equities, it is
highly probable that the defendant would not have prevailed at a
section 212(c) hearing.
4. Actual Cases
Though there are analytical challenges to a court interested in
availing itself of the full gamut of actual section 212(c) cases,
in the present case the precedential authority is sufficient. In
terms of cases from the United States Court of Appeals for the
Second Circuit, the defendant's situation can be analogized
closely to Vlassis v. INS, 963 F.2d 547 (2d Cir. 1992). As
discussed previously, in Part III.F.1.b, supra, in Vlassis a
non-citizen sought a stay of deportation. Mr. Vlassis had pled
guilty to a charge of unlawful possession of narcotics, attempted
criminal sale of marijuana, and criminal sale of marijuana. He
was later named in a sixteen-count indictment charging various
narcotics convictions. He pled guilty to one count alleging
criminal sale of cocaine in the third degree. The Court of
Appeals considered him, at the outset, to be a strong candidate
for a waiver. He had come to the United States at the age of
seven and lived in the United States for approximately twenty
years. He spoke little Greek and had only one known relative in
The Court of Appeals in Vlassis nonetheless denied relief in
part on the basis of a suspect employment record, where "he
worked mainly for members of his family and [was] often paid `off
the books.'" Id. at 550. He was not able to provide substantial
evidence of rehabilitation. His mother, though testifying on his
behalf, did not appear to know the details of his drug problem or
criminal history. The Court of Appeals was persuaded that the
immigration judge and the BIA were correct to deny relief. The defendant's criminal history appears to be more serious,
and his equities less substantial, than those in almost any
published BIA decision. In Matter of Edwards, 20 I. & N. Dec.
191 (BIA 1990), the non-citizen seeking a section 212(c) waiver
of deportation had a criminal record that included various counts
for attempted burglary and burglary as well as for possession of
a controlled substance and possession of a controlled substance
with intent to distribute. Edwards presented significant positive
factors, including a history of legal employment, a wife and
siblings living in the United States, the fact that he knew no
one in Barbados, and that he was the father of an autistic child.
Based in large part on a finding of lack of rehabilitation, the
BIA denied relief.
Matter of Roberts, 20 I. & N. Dec. 294 (BIA 1991), is
comparable to the defendant's situation. The BIA noted that the
sale of cocaine constituted an extremely serious adverse factor
and that, as a result, Roberts would need to establish unusual
and outstanding equities. It found no unusual and outstanding
equities in his case. He had resided in the United States for
approximately 12 years, having entered as an adult. It noted that
he had been separated from his wife and their four children since
1987, and that he was not certain of the whereabouts of his
2-year-old son. It observed that none of his family appeared to
rely on him for financial support, and that his employment was
irregular. Concluding that it lacked confidence in his
rehabilitation, the BIA determined that he did not warrant a
favorable exercise of discretion.
While the defendant has a closer relationship to his common law
spouse and children, he is otherwise in a very similar situation
to Mr. Roberts, with a far graver criminal record. He has never
meaningfully supported his family with legal income because of
his sporadic legal employment and his incarceration. While he
arrived in this country at a young age and has lived here for a longer time than Mr. Roberts, he has also acknowledged
over 250 drug sales, a shooting, and repeated efforts to obstruct
Even when compared with unpublished BIA cases, for purposes of
realistically assessing his probability of success in seeking
section 212(c) relief rather than for precedential value, the
defendant's criminal history is so serious that, to be
counterbalanced, he would need to demonstrate positive equities
substantially superior to those he has proven to date. The BIA's
unpublished "close cases" were close precisely because the
seriousness of the criminal conduct was in balance with positive
equities. From the most generous standpoint, it would be
difficult to support such a claim in the instant case.
Despite defendant's serious criminal record, his plight and
that of his family are not without compassionate elements.
In terms of human misery, the potential impact of our
immigration laws can hardly be overstated. With minor
exceptions, the immigration laws operate directly and
exclusively upon human beings, flesh and blood, men,
women and children, whose hopes for future happiness
in a realistic sense frequently depend on their
ability to enter, or remain in, this land of freedom
and opportunity. . . .
The statutes themselves contain a built-in potential
for hardship which is to some extent unavoidable. In
carving out the general classes of aliens eligible to
be admitted and to remain here, the laws obviously
exclude all others who do not fit into the defined
classes, with harsh results in marginal and
Maurice A. Roberts, The Exercise of Administrative Discretion
Under the Immigration Laws, 13 SAN DIEGO L. REV. 144, 144-45
By his own testimony, the defendant in the instant case is a
hardened drug dealer and a violent criminal. He has admitted to selling illegal drugs
hundreds of times, resulting in arrests and convictions on a
range of controlled substances offenses. He has likewise
acknowledged engaging in violent crime, on one occasion shooting
and critically injuring an "associate." He repeatedly obstructed
justice by refusing to surrender to authorities when called upon
to do so and by persistently lying to police about his identity
and immigration status.
Were the defendant's record less serious or his equities more
substantial, the "reasonable probability" outcome may well have
been different. Judge Williams himself acknowledged that it
certainly would have been possible for someone who "after
committing three crimes, albeit serious" ones, could have gone to
prison, spent three years there, and turned "their life around
[to] lead a productive law-abiding life[.]" Mar. 24, 2005 Hrg.
Tr. at 131. In United States v. Scott, 394 F.3d 111 (2d Cir.
2005), discussed above in Part III.B.1, supra, the United
States Court of Appeals for the Second Circuit dismissed the
indictment of a non-citizen charged with illegal reentry despite
a lengthy criminal history, on the grounds that an immigration
judge in a section 212(c) proceeding could have found that his
positive equities outweighed the negative factors.
Despite substantial evidence that many individuals convicted of
serious crimes were in fact granted section 212(c) relief, the
court is now presented with an individual whose criminal record
is extraordinary and whose equities are underwhelming. The
defendant has failed to prove that there was a reasonable
probability a 20% chance, applying the inverse of the "clear,
unequivocal and convincing" standard that he would have
obtained section 212(c) relief.
The indictment is reinstated. SO ORDERED.
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