United States v. Gonzalez

UNITED STATES, v. TEODORO GONZALEZ, Defendant.

15-CR-0021 (JMF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

May 29, 2015

OPINION AND ORDER

JESSE M. FURMAN, United States District Judge:

Defendant Teodoro Gonzalez, charged with one count of illegal reentry after having been removed from the United States, in violation of Title 8, United States Code, Section 1326(a) and (b)(1), moves to dismiss the indictment. Specifically, Gonzalez challenges the validity of the removal order pursuant to which he was previously removed from the United States, arguing that entry of the order was "fundamentally unfair" within the meaning of Section 1326(d)(3) because the immigration judge and his immigration lawyer failed to advise him about his right to seek a form of discretionary relief called "voluntary departure." That argument requires the Court to decide whether the failure to inform an alien about the right to seek voluntary departure can qualify as "fundamental error." In light of United States v. Copeland, 376 F.3d 61, 70 (2d Cir. 2004), which addressed a related issue, the Court follows the only courts within this Circuit to have decided the question and holds that the failure to inform an alien about the right to seek voluntary departure does indeed qualify as fundamental error if the alien shows that he was prejudiced by the error. Additionally, the Court finds that Gonzalez has shown by a preponderance of the evidence that he was prejudiced by the error in his case. Accordingly, and for the reasons explained below, Gonzalez's motion is granted and the indictment is dismissed.

THE STATUTORY FRAMEWORK

An alien facing removal from the United States can apply for various forms of discretionary relief. Three forms of such relief are relevant in this case. The first is adjustment of status pursuant to Section 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i). Section 245(i) provides, in relevant part, that an alien who is "physically present" in the United States and meets certain other criteria may apply to adjust his or her status to that of a permanent resident if "(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and (B) an immigrant visa is immediately available to him at the time his application his filed." Id. § 1255(i)(2). Pursuant to the plain terms of the statute, if an alien is inadmissible to the United States as a permanent resident — for example, because of a conviction of "a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance," id. § 1182(a)(2)(A)(ii) — the alien is ineligible for adjustment of status, even if he or she can satisfy the statute's other requirements.

The second relevant form of discretionary relief is "pre-hearing voluntary departure" pursuant to Title 8, United States Code, Section 1229c(a). Pursuant to that provision, the Government may permit an alien to "voluntarily depart the United States at the alien's own expense . . . in lieu of being subject to [removal proceedings] or prior to the completion of such proceedings." To be eligible for pre-hearing voluntary departure, the alien must request it "prior to or at the master calendar hearing," concede removability, withdraw any other requests for relief that have previously been made, and waive appeal. 8 C.F.R. § 1240.26(b). Significantly, an alien may request pre-hearing voluntary departure at any time before the final order of removal is entered — even if the immigration judge has already denied other requests for relief,so long as the alien withdraws his requests for such relief. See United States v. Garcia, No. 08-CR-32 (ARR), 2008 WL 3890167, at *10 (E.D.N.Y. Aug. 19, 2008).

Third, an alien can request "post-hearing voluntary departure" — that is, voluntary departure after the completion of removal proceedings — pursuant to Title 8, United States Code, Section 1229c(b). Notably, unlike an alien seeking pre-hearing voluntary departure, an alien seeking post-hearing voluntary departure must demonstrate that he "is, and has been, a person of good moral character for at least 5 years immediately preceding" his application for voluntary departure. 8 U.S.C. § 1229c(b)(1)(B). To satisfy that requirement, the alien must show, among other things, that he has not "been confined, as a result of conviction, to a penal institution for an aggregate period of one hundred and eighty days or more." Id. § 1101(f)(7). Thus, although an alien who has recently been incarcerated for an aggregate period of 180 days or more might be eligible for pre-hearing voluntary departure, he would not be eligible for post-hearing voluntary departure.

Whether granted pre-hearing or post-hearing, voluntary departure offers an alien several benefits. See Dada v. Mukasey, 554 U.S. 1, 11 (2008). First, an alien who is granted voluntary departure may be able to avoid "extended detention pending completion of travel arrangements." See id. (If the immigration judge finds it to be necessary, however, the judge may grant voluntary departure "with safeguards," in which case the alien would remain in custody until he or she leaves the United States. See El Badrawi v. United States, 787 F. Supp. 2d 204, 231-32 (D. Conn. 2011).) Second, the alien may choose his departure date. See Dada, 554 U.S. at 11. Third, in some cases, voluntary departure "facilitates the possibility of readmission" because an alien who voluntarily departs may "sidestep some of the penalties attendant to deportation," including, for example, those providing that an alien who is deported would not be eligible forreadmission until a certain amount of time has elapsed. Id. And lastly, unlike an alien who is deported, an alien who returns to the United States without permission after being granted voluntary departure would not be subject to criminal prosecution for illegal reentry pursuant to Title 8, United States Code, Section 1326(a). See Garcia, 2008 WL 3890167, at *6.

Notably, the BIA has held that if an alien is apparently eligible for voluntary departure, the immigration judge must inform him about its availability and give the alien an opportunity to apply. See In re Cordova, 22 I. & N. Dec. 966, 970-71 (BIA 1999). The immigration judge must make such disclosures no later than the master calendar hearing or, if there is no such hearing, "prior to the taking of pleadings." Id. at 971. The BIA based its ruling not only on a regulation requiring that an alien must be informed about "her eligibility for benefits," including voluntary departure, but also to ensure that voluntary departure is used "fairly." Id. Indeed, the BIA went so far as to find that the requirement is necessary "to accord full due process to all aliens who may be eligible" for relief. Id. at 970-71. If the immigration judge does not inform the alien about the right to seek voluntary departure, the BIA will vacate the order of deportation and remand. See id. at 972; see also, e.g., In re Necitas Mallari Dangan, 2014 WL 3795545, at *1 (BIA June 16, 2014) (unpublished) (remanding the case to the immigration judge when the judge failed to inform the alien about the availability of voluntary departure); In re Alejandro Jose Betances, 2014 WL 3795482, at *1 (BIA June 10, 2014) (unpublished) (same).

FACTS

With that framework in mind, the Court turns to the facts of the instant case, derived from the parties' submissions and an evidentiary hearing held on April 17, 2015. (The relevant facts are undisputed except where noted.) Gonzalez, a citizen of the Dominican Republic, first entered the United States in or about 2000, without being admitted or paroled and without a validentry document. (Habib Decl. (Docket No. 14), Exs. D, G ¶ 3). In 2001, he married a United States citizen, Iris Velazquez, and subsequently applied for adjustment of status (or Section 245(i) relief) based on their marriage. (Id., Exs. A, B). In 2006, however, before his application for adjustment of status was resolved, Gonzalez pleaded guilty in Connecticut state court to possession of heroin, and was sentenced to three years in prison. (Id., Exs. C, D).

While Gonzalez was serving his sentence, he received a notice to appear in removal proceedings. (Id., Ex. D). He was represented in those proceedings by an attorney named Milagros Cruz ("Cruz" or "immigration counsel") from the law firm DeCastro Foden. (Evidentiary Hr'g Tr. (Docket No. 36) ("Tr.") 4-5, 11). Cruz began representing Gonzalez in or about January 2007, at which point she was relatively new to the practice of immigration law; specifically, she had begun practicing immigration law only in 2005. (Id. at 4-5). She and Gonzalez met in jail two times in advance of his immigration hearing on May 4, 2007: once on January 12, 2007, and again on April 27, 2007. (Id. at 10, 48 (discussing notes from two meetings prior to the date of the hearing); Defense Ex. B). In an affidavit, Gonzalez asserts that Cruz failed to inform him about the possibility of voluntary departure. (Habib Decl., Ex. G ¶ 4). Based on Cruz's testimony at the evidentiary hearing held on April 17, 2015, however, the Court finds that she did mention voluntary departure to Gonzalez, but only in their first meeting. (Tr. 9-14, 19, 54, 58, 60). At that meeting, Cruz reviewed three forms of relief with Gonzalez — relief that, in her view, "he was available for": asylum, adjustment of status, and "voluntary departure with safeguards." (Id. at 10-11).

Significantly, the Government concedes that Gonzalez's drug conviction rendered him statutorily ineligible for adjustment of status — thus, the only relief realistically available to him was pre-hearing voluntary departure. See 8 U.S.C. §§ 1182(a)(2)(A)(i)(II); 1255(i)(2)(A).(Gov't's Post-Hr'g Mem. (Docket No. 34) ("Gov't's Post-Hr'g Mem.") 7). Cruz, however, did not advise Gonzalez of that fact, and for one simple reason: she was not...