The opinion of the court was delivered by: John Gleeson, District Judge
FOR ONLINE PUBLICATION ONLY
Defendant Manuel Carrasco-Abreu, a citizen of the Dominican Republic, moves to dismiss a one-count indictment charging him with illegally reentering the United States after having been removed. He claims that he was never "removed" within the meaning of the illegal re-entry statute, 8 U.S.C. § 1326, because he initially left the United States pursuant to an order of voluntary departure, not an order of removal. For the reasons stated below, the motion is denied.
Carrasco-Abreu entered the United States from the Dominican Republic prior to September 1991. On September 17, 1991, the Immigration and Naturalization Service ("INS")*fn1 served an order to show cause charging Carrasco-Abreu with entering the United States without inspection. On December 20, 1991, he appeared for a hearing at the Buffalo Immigration Court and stipulated with the government to an order resolving the proceedings. The terms of this stipulated order are disputed.
The transcript of the hearing shows the immigration judge opening the proceedings by asking Carrasco-Abreu, through his counsel, to acknowledge service of the order to show cause, admit to its allegations, and concede his deportability.*fn2 Carrasco-Abreu's counsel did this, and designated the Dominican Republic as his country of deportation. The immigration judge then stated:
Thank you. This been [sic] an off the record discussion the sum and substance of which is that the government of the United States has no objection to the court entering an order granting voluntary departure provided that he leave no later than April 20, 1992 or any extension granted by the district director. Should the respondent fail to report by that time, he shall be deported from the United States to the Dominican Republic.
Hr'g Tr. 1. The immigration judge then placed Carrasco-Abreu under oath and stated:
Initially the United States Government sought to deport you. However now the United States Government is or has no objection to allow you to remain in this country and has no objection to giving you trust and allowing you to leave voluntarily allowing the court to place trust in you that you will leave voluntarily no later than April 20, 1992 and that if you don't leave by that time and your attorney does not get an extension beyond that date you will be deported to the Dominican Republic.
Hr'g Tr. 2. Carrasco-Abreu stated that he understood and agreed "to that," id., and the stipulation was converted into an order after Carrasco-Abreu's attorney, at the government's request, stated that Carrasco-Abreu was eligible for voluntary departure and that the order should "be accepted as a final order without appeal," id.
Carrasco-Abreu was arrested on New York State drug possession charges prior to his voluntary departure date and did not depart by April 20, 1992. The INS issued a warrant of deportation directing that Carrasco-Abreu be removed. Carrasco-Abreu pled guilty to the drug charges and was sentenced to concurrent terms of four years to life and six years to life. On May 8, 1997, while Carrasco-Abreu was in state custody, the immigration judge who had presided over Carrasco-Abreu's hearing issued an order clarifying the effect of the stipulation entered at the hearing. The May 8, 1997 order states that in order to "clarify the official and final order" stipulated to at the December 20, 1991 hearing, the immigration judge "concludes," inter alia:
The certified recording of the proceeding indicates that the respondent was granted voluntary departure on or before April 20, 1992, and that if the respondent failed to depart when and as required, the privilege of voluntary departure would be withdrawn without further notice of proceedings, and the respondent would be deported from the United States to the Dominican Republic on the charge contained in the his [sic] Order to Show Cause, pursuant to Section 244(e) of the Immigration and Nationality Act.
Def.'s Mem. Supp. Mot. Dismiss Ex. D. The order ends: "Therefore, it is hereby ordered that the official and final decision of the immigration judge is that the respondent was granted voluntary departure on or before April 20, 1992." Id.
On June 4, 1997, Carrasco-Abreu was released on parole and transferred to INS custody. On June 14, 1997, he was removed pursuant to the May 8, 1997 order. He subsequently reentered the United States, was indicted for illegal re-entry on July 28, 2003 in the Southern District of New York, and was convicted at a bench trial and sentenced principally to imprisonment for one year and one day. United States v. Carrasco-Abreu, No. 03-CR-912 (SHS) (S.D.N.Y. June 2, 2004). He was removed on August 2, 2004 pursuant to a warrant of removal which indicated that it was based upon a final order by "a district director or a district director's designated official." ...