Opinion
Crim. No. 09-294 (DRD).
February 23, 2010
PAUL J. FISHMAN, United States Attorney, United States Attorney's Office, Newark, New Jersey, By: MATTHEW E. BECK, Assistant U.S. Attorney.
Kevin F. Carlucci, Esq., Assistant Federal Public Defender, Newark, New Jersey, Attorney for Defendant Baselet Guillaume.
ORDER
For the reasons set forth in an opinion of even date;
It is this 23rd day of February, 2010;
ORDERED that the motion of Defendant, Baselet Guillaume, to dismiss the indictment, is denied.
OPINION
An indictment filed on April 17, 2009, charges that Defendant, Baselet Guillaume, on or about June 11, 2008, being an alien, and having been deported on or about March 7, 2007, after sustaining a conviction for an aggravated felony re-entered and was found in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). Defendant moves to dismiss the indictment.
Essentially Defendant contends that the deportation hearing upon which the indictment is based was unfair in that he was not provided an interpreter, and that he did not understand that his attorney basically conceded his deportability and stated that Defendant was not seeking withholding of deportation under the Convention Against Torture ("CAT").
I. Background
The government has provided records of the Department of Homeland Security, Immigration and Customs Enforcement ("ICE") that establish authoritatively the sequence of relevant events. It is useful to set this forth before addressing Defendant's contentions.
On or about June 24, 1992, Defendant, a native and citizen of Haiti, was temporarily granted admission to the United States based on a "colorable" claim to political asylum. Throughout his ex-parte communications with the Court and in other documents, Defendant asserts that in June, 1992, he was granted asylum. In fact he was not. He was paroled into the United States for 180 days to permit him sufficient time to file an asylum application. He did not file such an application but stayed on in the United States.
On June 12, 1996, Defendant filed an application to become a legal permanent resident based on his marriage to a United States citizen. On August 30, 2001, Defendant withdrew the application because he was granted lawful permanent resident status pursuant to the Haitian Refugee Immigration Fairness Act of 1999 ("HRIFA"), Pub.L. No. 104-277, 112 Stat. 2681 (Oct. 21, 1998).
On or about August 7, 2006, Defendant was convicted in the United States District Court for the Southern District of Florida of encouraging and inducing aliens to unlawfully enter the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and was sentenced to a six months term of imprisonment.
The conviction, constituting an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(n), resulted in removal proceedings that were commenced against Defendant on November 16 and 30, 2006. Defendant, represented by counsel, appeared before Immigration Judge Denise N. Slavin at the Immigration Court in Miami, Florida. It is the conduct of these proceedings, specifically, a failure to provide an interpreter, that forms the basis of Defendant's motion to dismiss the indictment.
During the November 30, 2006, removal hearing Defendant's counsel addressed the removal charges by admitting to most of the allegations, affirmatively waiving relief from deportation through withholding or the CAT and specifically agreeing that Defendant would return to Haiti. Without objection, the Immigration Judge ordered that Defendant be removed from the United States and returned to Haiti. On March 7, 2007, Defendant was removed to Haiti.
After his removal from the United States, but before June 11, 2008, Defendant re-entered the United States.
On June 11, 2008, two deportation officers with ICE, with the assistance of Orange, New Jersey, police officers, attempted to arrest Defendant. Defendant fled; he was apprehended; he identified himself as Demosthene Clement and provided false identification documents bearing the same name.
Defendant was then indicted on one count with re-entering the United States after having been deported subsequent to sustaining a conviction for an aggravated felony.
II. Defendant's Political Asylum Claim
Defendant's entitlement to political asylum or withholding under CAT is not directly an issue in this proceeding, but the failure of his lawyer to pursue these claims is one of the factors upon which Defendant relies to support his contention that the removal proceeding was fundamentally unfair. Further, the issue bears upon Defendant's credibility. Defendant claims that he and his family were strong supporters of Haiti's former President Jean-Bertrand Aristide, and that after the opposition party exiled Aristide, it commenced attempting to exterminate his supporters, specifically Defendant and his family. Defendant's contentions are contained in two ex parte letters that he sent to the Court — one dated July 17, 2009, and the other dated September 1, 2009. The accounts in these letters are consistent in most respects, but seem to differ in one important respect.
A. July 17, 2009 Letter: Defendant states that he was granted asylum in 1992 and that "the reason for asylum was regular attempts of assassination was made against me and my family. My 3 year old son was killed in the first assassination attempts on my life which leads to my fleeing to the U.S. in 1992."
Defendant then describes assassinations that led him to return to the United States after his March, 2007, deportation to Haiti.
In March 2006 I was arrested by the police in Miami for helping a friend entering in the U.S. I was sentenced for 6 months and deported back to my country Haiti. Since the opposition party to Haiti President won by exiling President Aristide the[y] began to extermination all of his supporters which my family, specifically my father was one of his strong supporters. He was assassined (sic) along with my bother in 2007 upon my arrival to Haiti after my deportation. (emphasis added)
The group are after my life now. My father and my brother were killed which they were searching for me. I fled back to the U.S. to escape my execution by the power in Haiti. I will be killed if I stayed in my country Haiti.
B. September 1, 2009, Letter: This letter appears to put quite a different date on the killing of his father and brother (not 2007, but instead 1991):
The court is aware that my dad and I both worked for the former "President Aristide" and that my dad as well as my brother became victims of a group called the "Man Man — Ton Ton", a vicious opposition group who brutally beat them to death with machetes, as I jumped out of the second floor window to escape with my life. Even today I can still hear their screams for mercy in 1991, this same group bludgeoned my three year old son to death. I fled to Guantanamo where I was granted asylum into the United States. (emphasis added)
In his 2010 hearing testimony on this motion Defendant stated that his brother and father were assassinated in 2007 and that his son was bludgeoned to death in 1991. He did not write the two letters, but dictated them to another inmate. He contends that the words "in 1991" did not refer to the killing of the father and brother but only to "this same group, bludgeoned my three year old son to death," which was the cause of his flight. Defendant produced a receipt from a funeral parlor dated November 17, 2007, that supports the 2007 assassination date of the father and brother, and the court will accept that as the correct date.
In this letter Defendant seeks to explain the rather remarkable fact that during the nine-year period January 24, 1997, to March 8, 2006, Defendant made 11 trips between the United States and Haiti, notwithstanding the vicious attempts by Aristide's opponents to exterminate Aristide supporters, including Defendant. During this period, while in the United States, Defendant had withdrawn his application for permanent residency based on marriage and had been granted permanent residency status based on HRIFA. Subsequent to this period, on August 7, 2006, Defendant was convicted of encouraging and inducing aliens to unlawfully enter the United States.
The reason Defendant gives in his September 1, 2009, letter to take eleven flights between the United States and Haiti was to see his sick mother:
Your Honor, from time to time, my mom would become very ill. I believe that this was due to the circumstances which surrounded the deaths of my dad, brother and three year old son. My mom would muster enough strength through her illness to request that I return to see her while she was still alive. She had long since removed herself from miles and miles away, wheas (sic) our family members were murdered, and she was all that I had left, your Honor, and she was my mom.
According to Defendant it was safe for him to visit his mother:
Her new location in no way posed a physical threat to either of us. I went to see her, she is my mother, over the years.
The September 1, 2009 letter demonstrates that Defendant was able to fly into and out of Haiti with no danger to himself and to visit with his mother on numerous occasions. "Her new location in no way posed a physical threat to either of us. I went to see her . . . over the years." In his hearing testimony Defendant asserted that, notwithstanding what he stated in the September 1, 2009, letter, he was in danger wherever he went in Haiti.
III. Discussion
A. November, 2006, Removal Proceeding: Defendant argues that the November, 2006, removal proceeding was fundamentally unfair and should be set aside because Defendant, although represented by counsel, was not provided with an interpreter to translate what was said into Defendant's native Creole language. The government provided a DVD containing the audio recording of Defendant's appearances before the Immigration Judge ("IJ") on November 16, 2006, and November 30, 2006.
The November 16, 2006, appearance was brief because Defendant's counsel asked that it be adjourned for two weeks. The IJ asked whether Defendant spoke English. Defendant responded, "a little bit." The IJ asked Defendant for his name and he provided his first and last names. Subsequently the IJ asked him if Guillaume was his first name and Defendant incorrectly answered "Yes". He was asked if his attorney was acting on his behalf, to which he responded "Yes". Neither Defendant nor his attorney asked for an interpreter or indicated any lack of understanding of the proceedings.
At the resumed hearing on November 30 the IJ mentioned that there was no interpreter and then stated "oh, you speak English." Defendant responded "a little bit." The IJ asked Defendant for his name, and Defendant responded correctly. The IJ asked Defendant whether his attorney was authorized to speak for him, to which Defendant said "yes." No request was made for an interpreter.
At the November 30 hearing Defendant's counsel admitted most of the allegations of the removal charges and affirmatively waived relief from deportation through withholding or the CAT, and agreed that Defendant would return to Haiti. At the conclusion of the hearing the IJ ordered that Defendant be removed from the United States and returned to Haiti.
Defendant contends that he was not informed of his right to appeal. The audio recording of the November 30, 2006, removal hearing does not reflect that Defendant was made aware of his right to appeal, and for the purposes of this motion the government does not contest Defendant's contention in this regard.
Defendant testified at the 2010 motion hearing that his lawyer informed him at the time of the 2006 removal hearing that he would file a motion for bail and that he would soon be back with his family. He denied that he told his lawyer that he agreed to return to Haiti and that he waived his right to seek asylum and CAT relief. In fact, he stated that he informed the lawyer that he sought asylum on the basis that if he returned to Haiti he feared for his life. When he signed papers after the hearing he thought that he was going to be released. Instead, he was taken to another room; his lawyer left; and he was processed for removal.
After the Supreme Court's decision in United States v. Mendoza Lopez, 481 U.S. 828, 839 (1987), Congress codified its holding in 8 U.S.C. § 1326(d) which provides that an alien charged with illegal entry may challenge the underlying deportation order only when the following three conditions are met:
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair8 U.S.C. §§ 1326(d)(1)-(3)
In view of the government's concession for the purposes of this motion that Defendant was not advised of his right to appeal the removal order, Defendant will be deemed to have satisfied the first two requirements of § 1326(d). The question remains whether the entry of the removal order was fundamentally unfair.
The Court of Appeals has stated that in the removal context "fundamental unfairness" is a "question of procedure" that requires that an alien be provided "(1) notice of the charges against him, (2) a hearing before an executive or administrative tribunal, and (3) a fair opportunity to be heard." United States v. Torres, 383 F. 3d 92, 103-104 (3d Cir. 2004). Further, even if a defendant satisfies these three requirements, he must also establish that "as a result of that fundamental error he suffered some prejudice." United States v. Charleswell, 456 F. 3d 347, 358 (3d Cir. 2006). The "burden an alien carries when attempting to establish prejudice" is a showing of "a reasonable likelihood that the result would have been different if the error in the deportation proceeding had not occurred." Charleswell, 456 F. 3d at 361-62.
Defendant unquestionably had notice of the charges against him; he was given a hearing before an executive or administrative tribunal and was given a fair opportunity to be heard. He was represented by retained counsel. It is true that his counsel admitted most of the allegations of the charge against him, but considering the undisputed record in the case, there was no other course he could have taken.
Defendant asserts that his opportunity to be heard was not satisfied because he was not provided with an interpreter. He insists that if he had understood what was transpiring he would have sought relief from removal based on a previously granted asylum claim, a new asylum claim or an application under CAT.
An alien in a removal proceeding who does not understand English has the right to an interpreter. The question of the necessity of an interpreter is within the discretion of the IJ,Drobny v. I.N.S., 947 F. 2d 241, 244 (7th Cir. 1991). A review of the audio recording of Defendant's two appearances and evidence of Defendant's command of English lead to the conclusion that the IJ did not abuse her discretion in proceeding without an interpreter. In the first place, neither Defendant nor his attorney requested an interpreter. The IJ posed questions to Defendant that he answered promptly and accurately. The fact that on one occasion he appeared to be confused about whether the IJ was asking for his first or last name does not require a different conclusion.
During the hearing on the instant motion, Defendant exhibited a command of the English language by frequently answering questions before his interpreter responded. The July 17, 2009, and the September 1, 2009, letters are well written and articulate. Defendant testified that he did not write them himself but gave the information they contained to another inmate who did not speak Creole. Defendant had to have spoken good English to convey this information to the other inmates.
At the time of his removal he was told in English and understood that he could ask for permission to return to the United States but could not return without permission.
By the time of his November, 2006 removal hearing, Defendant had lived in the United States since 1992; he had pursued at least two applications before the Immigration authorities, and he had worked legally in this country. It is to be expected that he had sufficient command of the English language to understand the substance of his removal hearing and the positions to which his lawyer agreed on his behalf.
The facts before the court suggest that there is no merit to Defendant's assertion that had he understood the nature of the proceedings he would have raised a political asylum claim. Defendant in his representations to the Court repeatedly states that when he first entered the United States in June, 1992, he was granted political asylum. He is in error in this regard. He was granted temporary admission on a colorable claim to political asylum with a grant of 180 days to file an application for political asylum. Defendant never applied for political asylum and instead, as described above, he obtained permanent residency through the HRIFA.
Defendant's basis for political asylum is suspect. Defendant traveled back and forth between the United States and Haiti without untoward results. Defendant in his September 1, 2009, letter acknowledged that his mother's new location in Haiti "in no way posed a physical threat to either of us." Defendant's second flight from Haiti suggest that he sought to re-enter the United States without seeking asylum. After the killing of his father and brother he did not seek permission to enter the country. He took a boat to the Bahamas, stayed there three months and then took a boat to Miami. From there he took a train to New Jersey to be with his family. Finally, the circumstances of Defendant's arrest by ICE agents in June of 2007 negate any thought of an intent to file a legitimate asylum claim. He fled from the police and ICE officers; he falsely identified himself as Demosthene Clement; and he was in possession of documents that falsely identified him as Demosthene Clement.
Appendix A is a chronology that sets forth pertinent events in Defendant's life from 1991 to 2007. It also (based on data obtained from Wikipedia) sets forth the dates when Jean-Bertrand Aristide, the person the Guillaume family supported, held the office of President of Haiti.
Appendix A also lists the dates of Defendant's flights between Haiti and the United States. In the case of two of these flights Aristide held the office of President when they were made. In the case of the remaining nine flights, Aristide was not in office when they were made. The fact that Aristide's opponents were in control of the country does not seem to have deterred Defendant from returning there. On each flight Defendant used his own name and went through Duvalier International Airport, Port-au-Prince, Haiti, evidencing a lack of fear for his life from attacks by his political opponents.
B. Prejudice: Even if the failure to provide Defendant with an interpreter deprived him of a fair opportunity to be heard, which it did not, he suffered no prejudice. He has not shown a reasonable likelihood that the result would have been different if the asserted error in the deportation proceeding had not occurred.
The Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101 et seq. provides the Attorney General with discretion to grant asylum to an alien who meets the definition of a refugee. 8 U.S.C. §§ 1158(b)(1) and (2). Under 8 U.S.C. § 1101(a)(42)(A) a refugee is an alien who is unwilling or unable to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
However, an alien is disqualified from consideration for asylum if the Attorney General determines that "the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." 8 U.S.C. § 1158(b)(2)(A)(ii). For asylum purposes "an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime." 8 U.S.C. § 1158(b)(2)(B)(i). The offense of alien smuggling, of which Defendant was convicted, is one of the enumerated crimes in 8 U.S.C. § 1101(a)(43) that is defined as an aggravated felony.
Another form of discretionary relief authorized by the INA is withholding of removal if the Attorney General determines that "an alien's life or freedom would be threatened" in the country to which the alien would be removed "because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). For the same reasons that Defendant could not expect to be granted asylum relief, he could not expect to be granted relief from withholding in light of his conviction of a particularly serious crime.
Defendant theoretically could have, and can, seek relief under CAT, 8 C.F.R. § 208.17 (2009), if he could have demonstrated that he would "more likely than not" have been tortured if he returned to Haiti. In light of Defendant's frequent returns to Haiti without incident after his original entry into the United States, and in light of Defendant's statement that his visits to his mother's home in Haiti "in no way posed a physical threat to either of us," it is highly unlikely that Defendant could pursue successfully a CAT claim.
Thus Defendant has failed to show that if there were defects in his removal proceeding, that it caused him prejudice of any sort.
IV. Conclusion
For the foregoing reasons Defendant's motion to dismiss the indictment will be denied.
APPENDIX A Chronology
Feb. 7 — Sept. 30, 1991 — Aristide was President of Haiti.Sept. 1991 — Aristide deposed in military coup.
1991 — Defendant's 3 year old son beaten to death. (according to Defendant's Sept. 1, 2009 letter)
1992 — Defendant fled to U.S.
June 24, 1992 — Defendant granted temporary admission to the United States on colorable claim of political asylum. He was given 180 days to file asylum application.
Oct. 12, 1994 to Feb. 7, 1996 — Aristide was President again.
June 12, 1996 — Defendant applied to become permanent United States resident based on marriage to a U.S. citizen.
Aug. 30, 2001 — Defendant withdrew application for permanent residency as he had been granted permanent residency status pursuant to HRIFA of 1999.
Feb. 7, 2001 — Feb. 29, 2004 — Aristide was President again.
Feb. 29, 2004 — Aristide was ousted in a rebellion.
Aug. 7, 2006 — Defendant was convicted in the Southern District of Florida of encouraging and inducing aliens to unlawfully enter the United States.
Nov. 16 and 30, 2006 — Defendant appeared before Immigration judge in removal proceeding.
March 7, 2007 — Defendant was removed to Haiti.
2007 — Defendant's father and brother were assassinated (according to July 17, 2009 letter).
Feb., 2008 — Defendant re-entered the United States.
June 11, 2008 — Defendant was arrested in Orange, NJ.
April 17, 2009 — Defendant was indicted for illegal entry.
Oct., 2009 — Defendant filed motion to dismiss indictment.
Defendant's Flights Between Haiti and U.S.
1/24/97 — Aristide was not President.8/25/99 — Aristide was not President.
3/08/02 — Aristide was President.
6/12/02 — Aristide was President.
4/11/05 — Aristide was not President.
4/24/05 — Aristide was not President.
9/15/05 — Aristide was not President.
10/22/05 — Aristide was not President.
12/15/05 — Aristide was not President.
02/09/06 — Aristide was not President.
03/08/06 — Aristide was not President.