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
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.
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.
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 . . .
COPELAND: Oh?
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).
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).
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).
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 ...