Wednesday, April 05, 2006

Misinformation to Immigrant at Deportation Hearing Causes Deprivation of Judicial Review, Invalidating Subsequent Reentry Conviction

United States v. Jermi Francisco Lopez, Docket No. 03-1476-cr (2d Cir. April 4, 2006) (Sack, Sotomayor, Raggi):

Where an element of a crime, in this case a prior deportation, depends on an administrative finding, due process requires that that finding have been subject to judicial review, to ensure its accuracy and make it a proper basis for criminal sanctions. See United States v. Mendoza-Lopez, 481 U.S. 828 (1987); 18 U.S.C. § 1326(d). In this case, the defendant had sought dismissal of his illegal reentry indictment on the ground that he had been denied judicial review of his deportation by misinformation given him at his hearing and by the Immigration Judge's failure to advise him of the availability of collateral relief by habeas corpus. In 1997, just at the time of amendment of new immigration laws eliminating much of the existing discretionary relief for deportation, the defendant had been ordered deported and informed that he was not eligible for any form of relief from deportation. He appealed to the BIA claiming that the new law did not retroactively eliminate his eligibility for relief, but his appeal was dismissed; he was deported 20 months later. Within two years thereafter, the Supreme Court decided in essence that the defendant's argument had been correct, and that he had been entitled to consideration for relief from deportation. The defendant later reentered the country and was prosecuted on the basis that his reentry was illegal since it followed a prior (valid) deportation.

The Circuit held, following its prior decisions in Copeland, Sosa, and Calderon, that the misinformation the defendant had received, that he was not entitled to discretionary relief, had deprived him of the opportunity for judicial review of his deportation. It remanded for a determination whether he had been prejudiced by the denial of review, that is, whether he might have prevailed on a request for discretionary relief from deportation.

The Court rejected the argument made in Judge Raggi's dissent, relying on the Court's decision in Gonzalez-Roque, that the defendant had review on habeas corpus available to him and that he could have sought that review in the twenty months before he was deported. In Gonzalez-Roque, the defendant had been deported a mere 10 months after his decision became final and the Court had upheld his conviction. Here, the Court rejected the reliance on Gonzalez-Roque because there had been no evidence in that case that the defendant had affirmatively been misinformed about the possibility of obtaining relief. In this case, it held, the misinformation had been sufficient to deprive the defendant of the opportunity for judicial review.

Two points are worth making. First, the Court rejected the broader proposition that the Immigration Judge's failure to inform the defendant of the availability of habeas relief deprived him of the only available judicial review. The Court essentially relies on the fiction that even pro se immigrants (who often do not speak English) are aware of their rights to collateral review on the writ of habeas corpus. This seems wrong, and indeed is contrary to the notion in the immigration laws that the Immigration Judge facing a pro se litigant has more than the usual judicial duty of deciding which of two adversaries is correct; the IJ is thought to have some duty to protect the immigrant. Given this, and given the Court's own citation for the fact that the premise of its ruling is "unrealistic," one may wonder about the soundness of its result.

The second point is that the dissent seems to read too much into Gonzalez-Roque. So far as one can tell from that decision, the defendant did not argue that the events at his deportation proceeding deprived him of judicial review. Rather, he made the broader claim that Congress's elimination of direct review in the courts constituted such a deprivation, even though collateral review remained available. The Court's simple rejection of this broad claim provides no authority for the dissent's contention that the mere passage of 10 months' time after a final deportation order removes any impediment to judicial review caused by misinformation given the defendant by the government. Gonzalez-Roque spoke to the question whether the continued availability of habeas provided, generally, the opportunity for judicial review required by Mendoza-Lopez, and said nothing about the extent to which misinformation might constitute an actual deprivation in the individual case or that initial deprivation might be ameliorated by the passage of various amounts of time.

UPDATE: I just noted that it took the Court more than two years to issue this decision following argument and that the defendant will have served his entire sentence four months from now. Thus, the Court's delay in issuing its decision deprived him of any real possibility of relief from dismissal of his conviction. This is unfortunate at the least; the narrow issue on which the case was decided hardly warranted this kind of delay.

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