The opinion of the court was delivered by: Hurley, District Judge
Rohan Manragh ("Manragh" or "defendant") stands accused of illegally reentering the United States after being deported following his conviction for an aggravated felony in violation of 8 U.S.C. § 1326(a). Pending before the Court is his motion to dismiss the indictment on the ground "that his prior deportation violated due process." (Chavis Decl. Supp. Mot. ¶ 1.)*fn1
Specifically, he maintains that his prior deportation may not serve as a legitimate basis for the illegal re-entry charge "because at his prior deportation hearing, [he] received ineffective assistance of counsel for his trial attorney failed to present necessary evidence to the immigration judge in support of his application for 212(c)*fn2 relief and his appellate attorney failed to file a necessary brief in support of his appeal resulting in summary dismissal." (Id. at 2.)
For the reasons indicated infra, the motion to dismiss the indictment is denied.
1. Defendant's Initial Entry Into The United States
Defendant was born in Jamaica. He legally entered the United States in 1974 when he was 13 years old as a permanent resident along with his six siblings. (Chavis Decl. Supp. Mot. at 3.) His mother was initially a permanent resident and eventually became a citizen. (Id.)
2. Defendant's Criminal Record
In 1979, defendant pled guilty to Criminal Sale of a Controlled Substance in the Fourth Degree in violation of New York State Penal Law § 221.40. He was sentenced to a conditional discharge and a $600 fine. (Gov't's Mem. in Opp'n, Ex. A.)
A year and a half later, i.e. in November of 1980, defendant was charged with Assault in the First Degree and Criminal Possession of a Weapon in the Second Degree in violation of New York State Penal Law §§ 120.10 and 265.03. (Id. Ex. B.) Those charges arose from an incident during which defendant shot another person who, according to defendant, had attempted to steal his marijuana after he offered to sell that person and his companion "a couple of bags." (Transcript of Deportation Proceeding ("Tr.") at 210.)*fn3 After bail was apparently posted by his mother, defendant failed to appear for a scheduled court date on December 9, 1980. (Id. 100-01.) As a result, another State charge was leveled against defendant, Bail Jumping in the First Degree in violation of New York State Penal Law § 215.57. (Gov't's Mem. Opp'n at 2.)
The bench warrant issued in December of 1980 was executed "in approximately 1984." (Tr. at 72.) Sometime thereafter defendant pled guilty, as charged, to the assault and weapon possession charges, and to Bail Jumping Second Degree in satisfaction of the Bail Jumping First Degree charge. (Gov't's Mem. Opp'n at 3 and Ex. D.)
On May 6, 1985, defendant was sentenced to an indeterminate sentence of imprisonment of 3a to 10 years incarceration on the convictions for assault and weapons possession, and 1a to 4 years on the Bail Jumping in the Second Degree conviction, with all sentences to run concurrently. (Id.) Defendant was released from jail on May 27, 1988. (Tr. at 78.)
3. Order to Show Cause Filed by Immigration and Naturalization Service ("INS")
By Order to Show Cause dated September 7, 1984 ("OSC"), the INS sought to deport defendant to Jamaica based on his 1979 drug conviction. (Chavis Decl. Supp. Mot., Ex. 1.) On September 26, 1988, defendant appeared before Immigration Judge Patricia Rohan ("IJ Rohan") to answer the OSC, accompanied by his attorney James Lane, Esq. of the Jacob B. Fuchsberg Law Firm. Mr. Lane acknowledged that his client was subject to deportation but advised the Court that he had "an application for relief under Section 212(c)."*fn4 (Tr. at 2.) A hearing was then scheduled for November 9, 1988. (Id.) The details of the hearing are provided infra.
The hearing on defendant's 212(c) application was held on November 9, 1988 and January 6, 1989. Appearing for defendant was Mr. Lane, this time accompanied by another attorney from the Jacob D. Fuchsberg law firm, Mr. Malinsky. Defendant, his mother, wife, and one of his sisters, testified. Through them, considerable information was placed before IJ Rohan bearing on the favorable 212(c) factors that she was required to consider in reaching her determination. For example, evidence was adduced about defendant's long-time family and other ties to the United States, and the fact that his wife and children are citizens. Substantial countervailing information, however, was also presented, i.e. evidence adverse to the granting of the relief requested. By written decision dated January 20, 1989, IJ Rohan denied defendant's 212(c) application. (Gov't's Mem. Opp'n, Ex. E.)
5. Appeal Of IJ Rohan's Decision And Other Subsequent Legal Efforts By Defendant Prior To His Deportation
Following the adverse determination by IJ Rohan, defendant obtained new counsel for appeal purposes, Mr. Freedman. Mr. Freedman maintained that trial counsel provided defendant with constitutionally defective assistance by failing to present IJ Rohan with adequate evidence of defendant's ...