UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012
December 7, 2012
UNITED STATES OF AMERICA, APPELLEE,
COURTNEY DALEY, DEFENDANT-APPELLANT.
The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:
United States v. Daley
(Argued: September 6, 2012
Before: JACOBS, Chief Judge, CARNEY, Circuit
Judge, and GLEESON, District Judge.*fn1
29 Defendant Courtney Daley appeals from the judgment of 0 the United States District Court for the Eastern District of 31 New York (Korman, J.), convicting him of illegal re-entry 32 under 8 U.S.C. § 1326, following a conditional plea. Daley 33 challenges the denial of his motion to dismiss the 1 indictment. The district court ruled that the entry of the 2 removal order against Daley in absentia was not 3 fundamentally unfair because there was no reasonable 4 probability that Daley would have obtained relief had he 5 received notice of the removal proceeding and been present.
6 Because the district court properly considered Daley's 7 completed criminal conduct in making this discretionary 8 determination, we affirm the judgment.
23 Defendant Courtney Daley appeals from the judgment of 24 the United States District Court for the Eastern District of 25 New York (Korman, J.), convicting him of illegal re-entry 26 under 8 U.S.C. § 1326, following a conditional plea. Daley 27 moved to dismiss the indictment on the ground that he was 28 given no notice of the 1998 removal proceedings after which 29 a removal order was entered in absentia. The United States 2 1 District Court for the Eastern District of New York (Korman, 2 J.) ruled that the entry of the removal order was not 3 fundamentally unfair because there was no reasonable 4 probability that Daley would have obtained relief had he 5 received notice of the removal proceeding and been present. 6 While his 1998 immigration proceedings were pending, 7 Daley was arrested for robbery under the Hobbs Act and 8 detained at the Metropolitan Detention Center in Brooklyn, 9 New York. Although he notified the Immigration and 10 Naturalization Service ("INS") of his new address, INS did 11 not properly process the address change and failed to notify 12 Daley of his ongoing immigration proceedings, so that he was 13 ordered removed in absentia.
14 Daley was removed to Jamaica, his country of origin, 15 but he subsequently returned to the United States. He was 16 arrested again--this time following a domestic altercation 17 with his estranged wife--and indicted for illegal re-entry 18 under 8 U.S.C. § 1326. He moved to dismiss the indictment 19 pursuant to 8 U.S.C. § 1326(d), on the ground that his 1998 20 removal order was fundamentally unfair because he was 21 removed in absentia. In order to show fundamental 22 unfairness, however, Daley had to show that, but for the 1 Government's error, there was a reasonable probability that 2 he would have obtained relief from the Immigration Judge 3 ("IJ"). The district court concluded that there was no such 4 probability. Daley ultimately entered a conditional guilty 5 plea that preserved his right to appeal the denial of his 6 motion to dismiss the indictment. Daley was sentenced to 30 7 months' imprisonment and timely appealed. For the reasons 8 discussed below, we affirm the judgment.
11 Daley was born in Kingston, Jamaica, in 1968, and came 12 to the United States at the age of fifteen as a lawful 13 permanent resident. In 1995, Daley was indicted in New York 14 for possession of a loaded firearm and bail jumping. After 15 he served a one-year sentence, INS initiated removal 16 proceedings on January 14, 1998, pursuant to Section 17 237(a)(2)© of the Immigration and Nationality Act (which 18 allows removal of any alien convicted of certain firearm 19 offenses).
20 At Daley's initial appearance before the IJ in February 21 1998, he was granted additional time to find a lawyer. A 22 preliminary hearing was eventually scheduled for September 1 18, 1998. In May 1998, however, Daley was arrested and 2 arraigned in the Eastern District of New York on federal 3 robbery charges under the Hobbs Act (18 U.S.C. § 1951). 4 Daley pled guilty on August 18, 1998, but that conviction 5 did not become final until March 1999.
6 During the summer of 1998--because of his Hobbs Act 7 arrest--Daley was held without bail at the Metropolitan 8 Detention Center ("MDC") in Brooklyn. At Daley's request, 9 his girlfriend notified the INS that he was in custody at 10 the MDC and submitted a change-of-address form on his 11 behalf. It was received by INS and listed Daley's full 12 name, alien registration number, and Bureau of Prisons 13 number, clearly indicating that Daley was now residing at 14 the MDC in Brooklyn.
15 INS somehow misplaced or mishandled this form. 16 Presumably because he was not informed of the date, Daley 17 failed to appear for his September 1998 hearing before the 18 IJ. At the hearing, INS suggested that Daley might be 19 incarcerated, and the IJ adjourned to permit INS counsel to 20 determine Daley's whereabouts. Daley did not appear at the 21 subsequent hearing on October 23, 1998, and INS wrongly 22 1 informed the IJ that Daley was not in federal or state 2 custody. The IJ ordered Daley removed in absentia. 3 Daley was subsequently sentenced to 37 months' 4 imprisonment for his Hobbs Act conviction, and upon 5 completing that sentence in January 2001, he was deported to 6 Jamaica. Within a year, Daley returned to the United 7 States.
8 In February 2010, Daley was again arrested--this time 9 for allegedly threatening his then-estranged wife in 10 Brooklyn. As a result of that arrest, immigration 11 authorities learned of Daley's unlawful presence in the 12 United States. A grand jury indicted Daley in the Eastern 13 District of New York for illegal re-entry after deportation, 14 in violation of 8 U.S.C. §§ 1326(a), (b)(2).
15 Daley moved to dismiss the indictment pursuant to Rule 16 12 of the Federal Rules of Criminal Procedure and 8 U.S.C. 17 § 1326(d). Daley argued, pursuant to 8 U.S.C. § 1326(d), 18 that it would be fundamentally unfair to rely on the 1998 19 removal order to establish an element of the illegal re-entry 20 offense because the 1998 removal order was entered in 21 violation of his due process rights.
22 At a November 2010 evidentiary hearing on Daley's 23 motion to dismiss the indictment, Marguerite Mills, 1 Assistant Chief Counsel for U.S. Immigration and Customs 2 Enforcement, testified as follows concerning INS policy in 3 place at the time: if the IJ had been notified of Daley's 4 Hobbs Act guilty plea on the day of Daley's removal hearing 5 (October 23, 1998), the IJ would have administratively 6 closed the case until the Hobbs Act conviction became final; 7 and after the conviction became final, the IJ could have 8 reopened the case, denied Daley any discretionary relief 9 (including cancellation of removal), and ordered him 10 removed.
11 In response, Daley relied almost exclusively on United 12 States v. Scott, 394 F.3d 111 (2d Cir. 2005), arguing that 13 the district court should not consider "future occurrences" 14 when determining whether entry of the removal order was 15 fundamentally unfair. Id. at 119.
16 The district court denied Daley's motion from the 17 bench, on the ground that the failure of notice did not 18 prejudice Daley because he would not have been granted 19 cancellation of removal on October 23, 1998. The district 20 court carefully distinguished Scott: "I'm not looking at 21 future occurrences. I'm looking at what had occurred at the 22 time of the hearing. . . . And it's what distinguishes 23 Scott. In other words . . . if I am going to look at all of 1 the relevant factors at the time of the hearing, then you 2 lose." Tr. of Mot. Hr'g, at 39-40 (Nov. 22, 2010) 3 (App. 208-09). The district court explained further:
4 [T]he temporal limitation of Scott deals with a crime 5 that's committed after that hearing. If you wanted to 6 consider what happened, all the relevant information 7 as of the date of the hearing and the relevant 8 information includes his guilty plea for which he was 9 ultimately sentenced, and then the question becomes he 10 wouldn't have gotten relief. At most, they would have 11 put off the hearing but . . . he probably wouldn't have 12 gotten relief based on the admission that he made that 13 he committed [Hobbs Act] extortion . . .
14 Id. at 43 (App. 212). In short, the district court found no 15 reasonable probability that Daley would have been granted 16 relief had he been present at the 1998 hearing, thus he was 17 not prejudiced, and could not dismiss his indictment for 18 illegal re-entry under Section 1326(d). Id. at 52 19 (App. 221).
20 Daley thereafter entered a conditional plea to illegal 21 re-entry, preserving his right to appeal the denial of the 22 motion to dismiss. On May 3, 2011, the district court 23 sentenced Daley to 30 months' imprisonment. After the 24 district court issued its judgment, Daley timely appealed 25 the denial of the motion to dismiss the indictment.
2 Daley's appeal turns on a single issue: whether the 3 district court properly determined that there was no 4 reasonable probability that Daley would have obtained relief 5 had he been notified of his removal proceeding. Before 6 analyzing this issue in light of United States v. Scott, 394 7 F.3d 111 (2d Cir. 2005), we review the relevant legal 8 standards applicable in these circumstances.
11 The question whether the district court properly denied 12 Daley's motion to dismiss the indictment is a mixed question 13 of fact and law, subject to de novo review. United States 14 v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). We 15 review the district court's factual findings for clear 16 error. United States v. Cerna, 603 F.3d 32, 39 (2d Cir. 17 2010).
18 Section 1326(d) places limits on an alien's ability to 19 collaterally attack a removal order when seeking to dismiss 20 an indictment for illegal re-entry. In relevant part, 21 Section 1326(d)provides: 22 In a criminal proceeding under this section, an 23 alien may not challenge the validity of the 24 deportation order . . . unless the alien 1 demonstrates that-
3 (1) the alien exhausted any administrative 4 remedies that may have been available to seek 5 relief against the order;
7 (2) the deportation proceedings at which the 8 order was issued improperly deprived the alien 9 of the opportunity for judicial review; and 10 11 (3) the entry of the order was fundamentally 12 unfair. 13 8 U.S.C. § 1326(d). The only prong of Section 1326(d) at 14 issue in this appeal is the third one: whether entry of the 15 removal order was fundamentally unfair. The district court 16 found--and the Government does not dispute--that Daley 17 established the first two prongs (i.e., exhaustion of 18 administrative remedies and deprivation of opportunity for 19 judicial review).
20 The alien bears the burden of showing that entry of the 21 removal order was fundamentally unfair. "To show 22 fundamental unfairness [under Section 1326(d)(3)], a 23 defendant must show both a fundamental procedural error and 24 prejudice resulting from that error." United States v. 25 Copeland, 376 F.3d 61, 70 (2d Cir. 2004) (internal quotation 26 marks omitted). More specifically, "in order to demonstrate 27 prejudice an alien must show that his proceeding contained 28 errors so fundamental that he might have been deported in 1 error." Fernandez-Antonia, 278 F.3d at 159. We have 2 adopted the same test for prejudice as used to decide claims 3 of ineffective assistance of counsel: "[P]rejudice is shown 4 where 'there is a reasonable probability that, but for [the 5 error], the result of the proceeding would have been 6 different.'" Copeland, 376 F.3d at 73 (quoting Strickland 7 v. Washington, 466 U.S. 668, 694 (1984)). In sum, the 8 relevant inquiry for the district court--and now for us--was 9 whether there was a reasonable probability that Daley would 10 have been granted cancellation of removal at his October 23, 11 1998 removal hearing.
12 Cancellation of removal is a discretionary form of 13 relief available if an alien "has been . . . lawfully 14 admitted for permanent residence for not less than 5 years," 15 "has resided in the United States continuously for 7 years 16 after having been admitted," and "has not been convicted of 17 any aggravated felony." 8 U.S.C. § 1229b(a). An IJ's 18 decision regarding cancellation of removal consists of 19 "discretionary and factual determinations." Barco-Sandoval 20 v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2007). The IJ may 21 consider "various positive and negative discretionary 22 factors" when making this determination, including a 23 criminal record, which can "weigh strongly against 1 granting . . . discretionary relief." Ledesma v. Holder, 2 450 F. App'x 51, 53 (2d Cir. 2011); see also Rosario v. 3 Holder, 627 F.3d 58, 62 (2d Cir. 2010) (noting that 4 "factfinding and factor-balancing . . . are at the core of 5 [the IJ's] discretion").
6 With these legal standards in mind, we turn to examine 7 whether the district court properly considered Daley's Hobbs 8 Act guilty plea (and the likely results of that guilty plea) 9 when determining whether there was a reasonable probability 10 that Daley would have obtained cancellation of removal.
13 Fundamental unfairness arises when a "fundamental 14 procedural error" is coupled with "prejudice resulting from 15 that error." Copeland, 376 F.3d at 70. The Government 16 concedes that Daley established procedural error, and that 17 on October 23, 1998, Daley was technically eligible for 18 cancellation of removal. But Daley had to show a resulting 19 prejudice: a reasonable probability that but for the error, 20 he would not have been ordered removed. The district court 21 found that Daley "wouldn't have gotten relief" 22 notwithstanding that the Hobbs act conviction to which he 23 had pled had not yet become final. Tr. of Mot. Hr'g, at 43 1 (App. 212). The district court credited the testimony of 2 Marguerite Mills as to what would have happened had the IJ 3 been aware of Daley's Hobbs Act guilty plea, but also took a 4 broader view, concluding that regardless of whether Daley's 5 Hobbs Act guilty plea had yet become a final conviction, an 6 IJ considering "all the relevant information as of the date 7 of the hearing" would not have granted Daley discretionary 8 relief. Id. at 39, 43-44 (App. 208, 212-13).
9 On appeal, Daley relies on United States v. Scott, 394 10 F.3d 111 (2d Cir. 2005). In that case, a lawful permanent 11 resident was ordered removed in 1996 after two criminal 12 convictions in New York. Id. at 113-14. He was ordered 13 removed in absentia and never applied for waiver of 14 deportation (the equivalent of cancellation of removal at 15 that time). Id. He later claimed that his counsel during 16 the removal proceedings was ineffective. Id. In 1998, 17 after the IJ issued the removal order but before he was 18 deported, Scott was convicted for possession of burglar's 19 tools. Id. After his deportation and subsequent re-entry, 20 he was arrested in New York for grand larceny (among other 21 things). Id. at 114. Following that arrest, he was charged 22 with illegal re-entry after deportation under 8 U.S.C. § 1326 23 and sought to dismiss his indictment and collaterally 1 challenge his deportation pursuant to Section 1326(d).
2 We ruled that the district court erred by considering 3 "ex post data"--specifically, Scott's 1998 conviction for 4 possession of burglar's tools--in determining whether, in 5 1996, Scott would have had a reasonable probability of 6 relief at his deportation proceeding. Id. at 118. 7 As we explained, Section 1326(d)'s "focus on the 8 'entry' of the [removal] order suggest a temporal limitation 9 on the district court's inquiry." Id. "In other words, the 10 statute itself indicates that, contrary to the district 11 court's analysis, the only pertinent issue is whether entry 12 of the deportation order in 1996 prejudiced 13 Scott--regardless of Scott's potential deportability for 14 some later crimes." Id. (emphasis in original). "[A]s we 15 are presently concerned about the process afforded to Scott 16 at his deportation proceeding in 1996, it would be anomalous 17 to consider criminal conduct after that date." Id. at 119 18 (emphasis added). In sum, "in assessing whether the 19 defendant-alien had a reasonable probability of not being 20 deported at his proceeding but for [the error], the district 21 court should reconstruct events as they existed at the time 22 of the disputed deportation proceeding, without considering 23 future occurrences." Id.
1 Here, the district court's ruling--that there was no 2 reasonable probability that Daley would have been granted 3 cancellation of removal--was based on circumstances as they 4 existed on October 23, 1998, the day of Daley's removal 5 proceeding. Tr. of Mot. Hr'g, at 39, 43-44 (App. 208, 212- 6 13). It therefore did not run afoul of Scott. 7 In determining whether there was a reasonable 8 probability of relief, the district court could and did 9 consider Daley's entire criminal record as it existed at the 10 relevant time, including his Hobbs Act guilty plea. 11 Copeland, 376 F.3d at 74 (allowing review of entire criminal 12 record prior to removal proceeding); Scott, 394 F.3d at 13 118-19 (same). It considered "all relevant information" 14 that would have been available on the day of the removal 15 proceeding, including the fact that Daley had pled guilty to 16 Hobbs Act robbery, when making its determination as to 17 whether the IJ would have afforded Daley discretionary 18 cancellation of removal. Tr. of Mot. Hr'g, at 53 19 (App. 222). Unlike the criminal conduct in Scott--which 20 occurred after the removal order was entered--Daley made his 21 Hobbs Act guilty plea before October 23, 1998, the date of 22 his removal proceedings.
1 Two considerations support this conclusion. First, the 2 district court's "reasonable probability" analysis, by its 3 nature, requires some degree of speculation. We have 4 explained that "the courts must necessarily play the role of 5 prognosticator, and divine whether, had the error not 6 occurred, the defendant would likely have obtained 7 immigration relief." Edwards v. INS, 393 F.3d 299, 311 (2d 8 Cir. 2004). Daley's critique that the district court's 9 determination was speculative or uncertain therefore gains 10 no traction.
11 In addition, the IJ's underlying determination whether 12 to grant cancellation of removal is also highly 13 discretionary. See Barco-Sandoval, 516 F.3d at 36. 14 Cancellation of removal is essentially a matter of 15 administrative grace. Argueta v. Holder, 617 F.3d 109, 113 16 (2d Cir. 2010); see Jay v. Boyd, 351 U.S. 345, 354 (1956). 17 Here, the district court analyzed circumstances as they 18 existed on October 23, 1998 and concluded that there was no 19 reasonable probability that the IJ would have exercised his 20 discretion in Daley's favor. Daley presents no compelling 21 reason to disturb that determination. 22 While an extreme reading of Scott could suggest that 23 the district court should not consider anything that 1 occurred or could have occurred after the day of the removal 2 order, the upshot of Scott is to prohibit consideration of 3 criminal conduct occurring after entry of the removal order. 4 Scott, 394 F.3d at 119 (noting that "it would be anomalous 5 to consider criminal conduct after" the relevant date). To 6 achieve Daley's desired result, one must read the line from 7 Scott suggesting that a district court judge should 8 "reconstruct events as they existed at the time of the 9 disputed deportation proceeding, without considering future 10 occurrences" to mean that the judge cannot consider the 11 likely effects of already completed conduct. Such a reading 12 would be inconsistent with the district court's inherently 13 speculative role in carrying out the "reasonable 14 probability" analysis and with the IJ's broad discretion in 15 granting relief.
18 For the foregoing reasons, we affirm the judgment.