United States v. Contreras

1

UNITED STATES OF AMERICA v. HAIRO CONTRERAS, Defendant.

No. 22 Cr. 129 (PGG)

United States District Court, S.D. New York

May 18, 2023

MEMORANDUM OPINION & ORDER

PAUL G. GARDEPHE, U.S.D.J.

The Indictment charges Defendant Hairo Contreras with illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2). (Indictment (Dkt. No. 6)) Defendant has moved to dismiss, arguing that (1) his prior deportation was invalid and (2) Section 1326 violates the equal protection guarantee of the Fifth Amendment. (Def. Mot. (Dkt. No. 18); Def. Br (Dkt. No. 19))

For the reasons stated below, Defendant's motion to dismiss will be denied.

BACKGROUND

I. FACTS^[1]

A. Defendant's Early Life and Family in the Dominican Republic

Defendant is 36 years old. He was born in La Vega in the Dominican Republic in 1986 and lived there until age 23. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 7; Contreras Decl. (Dkt. No. 20-1) ¶¶ 2-3)^[2] Defendant was raised by his mother, with whom he is close. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 7-8) Defendant's “family's financial situation growing up” was “[n]ot good,” and he “began working with [his] uncle as a car mechanic” at age eight. (Id. at 8)

Defendant has three children, evidently with two women, in the Dominican Republic. (Id. at 9)

B. Defendant's Entry into the United States and Life in the United States

When Defendant was about 13 years old, his mother moved from the Dominican Republic to the United States. His brother and most of his father's relatives likewise moved to the United States. (Id. at 8-9)

In 2009 - at age 23 - Defendant illegally entered the United States. (Id. at 9-10 (“Q. How old were you when you came to the United States? A. 23. Q. And you mentioned that was in 2009, right? A. Yes.”); Oct. 3, 2018 Removal Proceeding Audio, DX-L^[3] (Dkt. No. 47-11) at 4:29 (“Immigration Judge: Did you illegally enter the United States? Contreras: Yes, sir.”)) Contreras came to the United States because he was “looking to provide better food and education for [his] children.” (Feb. 23, 2023 Tr. (Dkt. No. 40) at 10)^[4]

After coming to the United States, Defendant lived with his mother and a cousin in the Bronx. He frequently saw his brother, who lived in Manhattan. His sister later moved to the United States as well. According to Contreras, he had a close relationship with his relatives in the New York area. (Id. at 10-11) The Defendant's children, their mothers, and the Defendant's father remained in the Dominican Republic, however. (Id. at 9)

After arriving in the United States, Contreras quickly found work as a car mechanic, which paid better than his work in the Dominican Republic. Contreras enjoyed his work and sent his earnings to his children in the Dominican Republic. (Id. at 11-12) He later worked as a porter. (Id. at 27)

In 2010, Defendant met and began dating a woman in New York City. They moved in together in 2011 and were married in 2013. They have two children together, ages two and eight, both of whom were born in New York. Contreras was actively involved in raising his oldest child, who needed surgery and specialized medical care as an infant. (Id. at 12-18; May 2, 2013 Marriage Certificate, DX-N (Dkt. No. 47-13); Birth Certificates, DX-O, -P (Dkt. Nos. 4714, 47-15))

C. Defendant's Pre-2017 Criminal History

In November 2012, Defendant was arrested and charged with burglary, theft, and attempted burglary in New Jersey state court. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 18; N.J. Criminal History, GX-3 (Dkt. No. 47-22) at 3) His defense attorney referred him to an immigration lawyer, Ronald Mondello. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 18) Mondello advised that “a guilty plea to the burglary, attempted burglary or theft offense with a one-year jail sentence would result in Mr. Contreras being deported,” and he recommended that Contreras seek to plead to a lesser charge. (July 19, 2013 Mondello Ltr., DX-J (Dkt. No. 47-9) at 3; Feb. 23, 2023 Tr. (Dkt. No. 40) at 19) In October 2013, Contreras pleaded guilty to criminal trespass. He received no prison sentence and paid the fine that was imposed. (N.J. Criminal History, GX-3 (Dkt. No. 47-22) at 3)

In November 2014, Contreras was arrested and charged with criminal possession of a controlled substance with intent to sell in New York state court. He pleaded guilty in June 2015. His plea and sentence were vacated in September 2016, after he participated in a diversion program. (N.Y. Criminal History, GX-2 (Dkt. No. 47-21) at 7-8; Feb. 23, 2023 Tr. (Dkt. No. 40) at 19-20, 59)

D. Defendant's U-Visa Application and Discussion of Spousal Petition

In 2016, Contreras was assaulted by two men, who “hit [him] on the back of the head with a gun and . . . broke open [his] head and [his] nose.” (Feb. 23, 2023 Tr. (Dkt. No. 40) at 20; Injury Photo, DX-H (Dkt. No. 47-8); Contreras Decl. (Dkt. No. 20-1) ¶ 7) Defendant reported the attack and “cooperated with the prosecutors in [the] case” from the Bronx County District Attorney's Office. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 21) The prosecutors told him that he might be eligible for a “U-visa” (id.), a type of visa that “provide[s] a . . . temporary immigration benefit . . . in exchange for law enforcement assistance.” Moya v. United States Dep't of Homeland Sec., 975 F.3d 120, 142 n.5 (2d Cir. 2020) (Carney, J., concurring in part).

Contreras spoke with Attorney Mondello about the U-visa application, and Mondello wrote a letter to the Bronx District Attorney's Office in support of Defendant's visa application. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 21; May 4, 2017 Bronx D.A. Ltr., DX-C (Dkt. No. 47-3)) Contreras testified that Mondello and the prosecutors told him that the U-visa could not be issued “[u]ntil the [assault] case was closed.” (Feb. 23, 2023 Tr. (Dkt. No. 40) at 21)

At some point between 2014 and 2017, Contreras and Mondello also discussed the possibility of filing a “spousal petition” for legal residency. No such petition was ever filed, however (see id. at 20), and Contreras never obtained legal residency. (Id. at 47 (“THE COURT: [Y]ou weren't a legal resident [in 2018], right? A legal resident of the United States? THE WITNESS: No.”)

E. Defendant's 2018 New York State Conviction and Related Immigration Advice

In November 2017, while Contreras's U-visa application was still pending, he was arrested in the Bronx and charged in New York state court with criminal sale of a controlled substance in the second degree, in violation of New York Penal Law § 220.41(1), a Class A-II felony. (Id. at 22; N.Y. Criminal History, GX-2 (Dkt. No. 47-21) at 4) The controlled substance was cocaine. (Feb. 14, 2018 N.Y. State Plea Tr., DX-K (Dkt. No. 47-10) at 12) He was detained at Rikers Island after his arrest. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 22)

Defendant retained criminal defense attorney Gary Kaufman to represent him in the New York state case. (Id. at 22, 34-35; Feb. 14, 2018 N.Y. State Plea Tr., DX-K (Dkt. No. 47-10) at 3) Contreras testified that Kaufman told him that - as a result of the drug trafficking arrest - he “had no possibility whatsoever to remain in the United States.” (Id. at 23)

In December 2017, Defendant's wife contacted immigration attorney Mondello's law firm and spoke with associate Pablo Forray. In an email to Mondello summarizing the call, Forray states: “I told her that a drug charge would complicate his U-visa petition, but that we couldn't tell until we knew more. I also told her that he needs to consult with an immigration attorney like us before pleading to anything.” (Dec. 13, 2017 Forray Email, DX-A (Dkt. No. 471) at 2) In response to Forray's email, Mondello states that because (1) the Bronx District Attorney's Office had not provided an update for ten months; (2) Contreras had paid only $500; and (3) Contreras had never obtained from the Bronx District Attorney's Office the affidavit necessary for obtaining the U-visa, Mondello's firm was “done with this case ....Case over. Close it.” (Dec. 13, 2017 Mondello Email, DX-A (Dkt. No. 47-1) at 2) Forray's time sheets indicate, however, that he performed legal research later that month regarding whether Contreras - if convicted of the pending drug charge - could still obtain a U-visa after serving his sentence. (Forray Time Sheets, DX-B (Dkt. No. 47-2) at 2)

Contreras testified that his wife - after consulting Forray - told Contreras that he “had no . . . chances whatsoever anymore” with respect to his U-visa application. He further testified that she did not tell him that Forray had advised her to tell Contreras to consult with an immigration attorney before pleading guilty. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 23, 51)

On February 14, 2018, Contreras pleaded guilty to criminal sale of a controlled substance in the second degree, a Class A-II felony, in Bronx County Supreme Court. During his plea allocution, the following colloquy took place:

Q. So, sir, do you understand if you're not a United States citizen this plea of guilty would result in your being deported, excluded from the United States. Do you understand that?

A. Yes.

Q. Have you talked to your lawyer about that? He indicated that you have. I believe that's true. I just want you to confirm that.

A. Yes.

Q. You discussed the immigration consequences of pleading guilty today?

A. Yes.

Q. Are there any questions about that issue and do you want to talk to your lawyer about it now?

A. No, no.

(Feb. 14, 2018 N.Y. State Plea Tr., DX-K (Dkt. No. 47-10) at 11-12)

Contreras did not “ask the judge whether [he] [w]ould ever be able to come back to the United States legally,” nor did the judge sua sponte address that issue. (Feb. 23, 2023 Tr. (Dkt. No. 40) at 25-26)

Nothing in the record suggests that - prior to his guilty plea - (1)...