Opinion
84 Cr. 006-01 (CSH).
September 14, 2007
MEMORANDUM OPINION AND ORDER
Defendant Adnan Asan, confronted with an apparent decision by the Immigration and Customs Enforcement agency of the United States Department of Homeland Security ("ICE") to deport him next week to his native country of Macedonia, applies to this Court on an expedited basis for relief. Specifically, Asan asks that a so-ordered stipulation of dismissal of his previously filed petition for a writ of error coram nobis be vacated and that petition revived, so that Asan can pursue the remedy it sought, namely, the withdrawal of a guilty plea to a narcotics offense Asan gave in 1984 in accordance with a plea agreement between Asan and the government acting through the office of the United States Attorney for this District ("USAO-SDNY"). Asan desires this ultimate relief because, as he and the government seem to agree, that criminal conviction forms the basis for ICE's order of deportation. Familiarity is assumed with all prior proceedings in the case.
Given the exigencies of the case, and the absence of the undersigned from the Courthouse and the state, the Court scheduled a telephone conference for the morning of Friday, September 14, 2007. Having considered the submissions of counsel, and for the following reasons, the Court denies Asan's present application in its entirety.
The core question is whether the government has abided by the two agreements it entered into with Asan: the 1984 plea agreement and the 2007 stipulation of dismissal of Asan's coram nobis petition. That question must be answered in the affirmative. The plea agreement obligated the USAO-SDNY to advise ICE's predecessor agency, the Immigration and Naturalization Service ("INS"), of the extent and value of Asan's cooperation with the government in connection with the underlying narcotics offense for which Asan was indicted and to which he pleaded guilty. Given the amount of time elapsed, the government is understandably unable to show beyond question that it fulfilled that obligation in 1984 or shortly thereafter. But the record generated by Asan's present application makes it crystal clear that the USAO-SDNY's detailed and eloquent letter to ICE in July 2007, describing Asan's cooperation with the government and its value, fulfilled the government's obligations under both the plea agreement and the stipulation of dismissal.
This Court endorsed the stipulation of dismissal on August 7, 2007.
The 1984 plea agreement expressly provided that the USAO-SDNY had no authority to bind any other government agency (including INS) to the terms or consequences of that agreement. The plea agreement made it clear to Asan that the USAO-SDNY's only obligation under that agreement was to advise INS of the extent and value of Asan's cooperation with the USAO-SDNY. That limitation is stated with equal clarity in the 2007 stipulation of dismissal. The stipulation obligated the USAO-SDNY to write again to ICE, detailing Asan's earlier cooperation and its value. The USAO-SDNY has done so. The prosecutors' letter is described in ¶ 2 of the stipulation as being in aid of "a determination by ICE whether to exercise its discretion not to enforce Asan's order of exclusion and deporatation." (emphasis added). ¶ 3 recites that the stipulation "contains no express or implied provision with respect to ICE's decision to enforce Asan's order of exclusion and deportation, and Asan understands that the USAO-SDNY lacks the authority to require any particular decision." (emphasis added). ¶ 4 of the stipulation provides that if "the USAO-SDNY satisfies its obligations under this Stipulation, no action shall be brought by Asan, or anyone acting on Asan's behalf, in any court alleging a breach or violation of the terms of this Stipulation or the Cooperation Agreeement." The USAO-SDNY has fully satisfied its obligations under the stipulation.
The stipulation begins with the provision that Asan's underlying coram nobis petition was dismissed "without prejudice." The stipulation's text makes it plain that the USAO-SDNY had not yet conveyed its follow-up letter to ICE. The clear purpose of the "without prejudice" phrase was to entitle Asan to reopen his petition if the prosecutors failed to convey their letter to ICE. But they did so. That brings the case within the bar against further actions by Asan contained in ¶ 4 of the stipulation.
Asan's renewed application to the Court results from his dissatisfaction, understandable in human terms, with ICE's decision to enforce the order of exclusion and deportation. Asan's able and energetic attorney does not ask this Court to substitute its judgment for that of the agency; counsel recognizes that the Court lacks that power under the statute. The gravamen of Asan's present complaint is that ICE failed to make a good-faith consideration of Asan's case in general and the USAO-SDNY's letter in particular. Counsel argues in his brief that ICE's "failure to make a determination" constituted "a non-occurrence which materially affected [Asan's] bargained-for consideration." Pet'r's Br. at 2. Counsel argued during the hearing that ICE "failed to follow the spirit of the stipulation" and that "the Court could [and should] find ICE's response is insufficient." There is no substance to such arguments. ICE's negative response was terse, but just as the decision is vested in the agency's discretion, so is the manner of its expression.
Counsel for Asan and members of his family contend, based upon their personal perceptions, that ICE gave no meaningful consideration to Asan's case. The government responds with a sworn declaration by James Shaughnessy, a Supervisory Deportation Officer at ICE, that the agency carefully considered the matter and decided not to exercise its discretion in Asan's favor. This dispute does not fall within the Court's competence to resolve, either under the statutory scheme or the agreements between the parties.
Asan's application to vacate the stipulation of dismissal and to reopen his coram nobis petition is denied.
It is SO ORDERED.