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May 4, 2005.


The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge


I. Introduction

  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 factors.

  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 reinstated.

  II. Facts

  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 citizen.

  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 provision:
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 record.
  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) (citations omitted).

  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 been deported.

  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).

  III. Law

  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 Cir. 2002).

  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 sustained if:
1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
2) the deportation proceedings at which the order was issued improperly deprived 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 added).

  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 complained of.

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 doubt).

  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 arbitrary.

  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 contemporary identification.

 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 unreasonable.

  C. Means of Determining Prejudice: Balancing Positive and Negative Factors

  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 ...

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