MEMORANDUM OPINION AND ORDER
Defendant Winston J. Barrett, Jr. ("Defendant" or "Barrett") is charged in a one-count indictment (the "Indictment") with illegally reentering the United States after having been removed from the United States following his conviction of an aggravated felony, without having obtained the express consent of the Attorney General of the United States, or his successor, the Secretary for the Department of Homeland Security, to reapply for admission, in violation of 8 U.S.C. §§ 1326(a). Defendant has moved to dismiss the Indictment, pursuant to Rule 12 of the Federal Rules of Criminal Procedure, on the grounds that the Indictment is legally insufficient. The parties have submitted extensive briefing and the Court heard oral argument on the motion. The Court has considered carefully and reviewed thoroughly all of the parties' arguments. For the reasons explained below, Defendant's motion is denied.
Barrett was born in Jamaica and is a citizen of that country. (Barrett Decl. ¶ 2.) He first entered the United States in February 1985 on an indefinite B-1, B-2 non-immigrant visa. (Id. at ¶ 3.) In February 1986, Defendant married an American citizen. (Id. at ¶ 4.) Defendant has two biological children, one with his wife and another whom his wife legally adopted, who are American citizens. (Id. at ¶ 5.) According to Defendant, he applied to become a legal permanent resident of the United States after his marriage. (Id. at ¶ 6.) His application was pending at the time of his deportation. (Id.) Between 1985 and 1987, Defendant made several trips between the United States and Jamaica, but Defendant contends that he maintained a permanent residence in Manhattan from 1985 onwards. (Id. at ¶ 7.)
In 1986, Defendant appears to have pled guilty to Attempted Criminal Sale of Marijuana, in violation of New York Penal Code §§ 110, 221.40, a Class B Misdemeanor, and was sentenced to five days' imprisonment. (Baumgartel Decl. ¶ 8.) In 1987, Defendant pled guilty to and was convicted of Possession with Intent to Distribute a Controlled Substance in violation of District of Columbia Code § 33-541(a)(1). (Id. at ¶ 9.)
In October 1991, on the way back from a Jamaican dance festival in Dallas, Texas, Defendant was stopped by federal immigration officers in the Dallas airport. (Barrett Decl. ¶ 8.) Defendant was taken into custody and was subsequently transferred to Louisiana. (Id. at ¶ 10.) According to Defendant, he received a brief hearing in Louisiana to determine whether he would be deported. (Id. at ¶ 14.) Although attorney Craig E. Miley submitted letters on Defendant's behalf in connection with the deportation proceeding, including a request for a prompt deportation hearing that asserted that Defendant was ineligible to be permitted to depart voluntarily, (see Exs. D, E, to Gvt's Mar. 27, 2009, letter), Defendant contends that he did not have an attorney at his hearing and that he does not remember being told that he could be represented by a lawyer or request an adjournment to hire a lawyer. (Barrett Decl. ¶ 14.) Additionally, the Record of Action attached as Exhibit C to the Government's January 14, 2009, letter indicates that the hearing was held without an attorney for Defendant present. (See Ex. C to Gvt's Jan. 14, 2009, letter). Shortly after the hearing, Barrett was deported to Jamaica. (Barrett Decl. at ¶ 21.)
The Indictment, charging the Defendant with illegal entry and presence in the United States from in or about 2007, was filed on October 20, 2008. (Id. at ¶ 4; Docket Entry No. 6.)
Defendant, invoking 8 U.S.C. § 1326(d), challenges the Indictment as legally insufficient because the underlying deportation order resulted from a proceeding that effectively denied him judicial review and violated due process. Defendant also contends that the Indictment is insufficient because 8 U.S.C. § 1326(b)(2) requires that the indictment specify a relevant prior aggravated felony conviction and neither of the Defendant's convictions meets that standard. Section 1326(d)
Under 8 U.S.C. § 1326(d), a defendant charged with illegal re-entry may collaterally attack the underlying deportation order 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." 8 U.S.C.A. 1326(d) (West 2005). Although there are disputes about what precisely occurred at the hearing, the parties' arguments focus on whether the Defendant can satisfy the third prong by demonstrating that the entry of the underlying deportation order was fundamentally unfair. In order to show fundamental unfairness for the purposes of 1326(d), a defendant must establish that there was a procedural error and prejudice resulting from that error. U.S. v. Copeland, 376 F.3d 61, 70 (2d Cir. 2004).
At the time of Defendant's deportation, section 212(c) of the Immigration and Nationality Act (the "INA"), codified at 8 U.S.C. § 1182(c) ("Section 212(c)"), permitted "[a]liens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, [to] be admitted in the discretion of the Attorney General." 8 U.S.C.A. § 1182(c) (West 1991). Section 212(c) relief, if granted, waives the "inadmissibility" arising from, inter alia, certain types of controlled substance convictions. 8 U.S.C.A. § 1182(a)(2) & (c) (West 1991); see also Matter of Gabryelsky, 20 I. & N. Dec. 750, 753 (1993) ("[A]lthough the respondent's controlled substance conviction does render him inadmissible under section 212(a)(2)(A)(i)(II) of the Act, he may utilize section 212(c) of the Act for the limited purpose of waiving this ground.") Although Section 212(c) relief applies, on its face, only to exclusion proceedings, the Board of Immigration Appeals has interpreted it "to authorize any permanent resident alien with a lawful unrelinquished domicile of seven consecutive years to apply for a discretionary waiver from deportation." I.N.S. v. St. Cyr, 533 U.S. 289, 295 (2001) (internal quotations omitted), citing Matter of Silva, 16 I. & N. Dec. 26, 30 (1976).
Failure to inform an alien of the availability of relief under Section 212(c), if such failure was prejudicial, constitutes a fundamental procedural error. Copeland, 376 F.3d at 72-73. In order to establish prejudice resulting from a procedural error, Defendant must show that there is a "reasonable probability" that, but for the errors at the deportation hearing, the outcome of the hearing would have been different. Id. at 73; see also U.S. v. Scott, 394 F.3d 111, 118 (2d Cir. 2005) ("As the Supreme Court has defined it, '[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.'" quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)).*fn1
Defendant argues that there is a reasonable probability that he would have received Section 212(c) relief under a balancing of the relevant factors. See, e.g., Scott, 394 F.3d at 119-20 ("Adverse factors include: (1) the nature and circumstances of the exclusion ground at issue; (2) other immigration law violations; (3) the alien's criminal record; and (4) evidence indicative of an alien's undesirability as a permanent resident. Favorable factors include: (1) family ties to the United States; (2) many years of residency in the United States; (3) hardship to the alien and his family upon deportation; (4) United States military service; (5) employment history; (6) community service; (7) property or business ties; (8) evidence attesting to good character; and, in the case of a convicted criminal, (9) proof of genuine rehabilitation." (internal citations omitted)). Although the Court agrees that many of the Section 212(c) factors appear to weigh in Defendant's favor, the Court finds, for the reasons explained below, that Defendant cannot show a reasonable probability that he would have received Section 212(c) relief and, thus, has not established prejudice on that basis.
In order to be eligible for a waiver of deportability pursuant to Section 212(c) under the law as in effect at the time of Defendant's deportation hearing, a defendant must have been a legal permanent resident and have had a lawful unrelinquished U.S. domicile of seven consecutive years. 8 U.S.C.A. § 1182(c) (West 1991). Defendant concedes that he was not a legal permanent resident at the time of his deportation, but argues that he could have applied for an adjustment of status to legal permanent resident. Defendant also concedes that he was at least months short of the requisite lawful unrelinquished domicile of seven consecutive years at the time ...