Opinion
00-CR-97S(F).
July 16, 2001
DENISE E. O'DONNELL, United States Attorney, Attorney for the Government, PAUL J. CAMPANA, Assistant United States Attorney, of Counsel, Buffalo, New York.
MARK T. KENMORE, ESQ., Attorney for Defendant, Buffalo, New York.
REPORT and RECOMMENDATION JURISDICTION
By order dated January 29, 2001, this matter was referred to the undersigned by Hon. William M. Skretny pursuant to 28 U.S.C. § 636(b)(1)(A) and 636(b)(1)(B). It is presently before the court on Defendant's motion, filed November 8, 2000, (Doc. # 6) for discovery and dismissal of the Indictment and Defendant's supplemental motion, filed January 11, 2001, (Doc. # 12) to dismiss the Indictment.
Although denominated as a motion to dismiss, as discussed, infra, Defendant's motion is, in actuality, a motion to suppress as evidence Defendant's prior order of deportation which is an element of the offense charged in the Indictment.
BACKGROUND
Defendant is charged in a single count indictment with a violation of 8 U.S.C. § 1326(a), unlawful reentry by an previously deported aggravated felon, dated June 21, 2000. Defendant moved on November 3, 2000 to dismiss the Indictment contending that the Indictment fails to allege a necessary element of the offense charged. Defendant's Memorandum of Support of Motion to Dismiss, filed November 3, 2000 (Doc. # 7) ("Defendant's Memoranda I") at 2. Specifically, in his first motion, Defendant contended that the failure to allege service of a Warrant of Deportation, in accordance with 8 C.F.R. § 241.32, or notice to Defendant of the effect of the alleged deportation upon Defendant's asserted liberty interest in retaining his status as a permanent resident alien, rendered the Indictment dismissible as matter of law. Id. The Government's Response to Defendant's Pretrial Motion (Doc. # 8) ("Government's Response I") was filed on November 27, 2000. Oral argument was conducted on December 7, 2000. At oral argument, Defendant's discovery requests were resolved and, based on the Government's agreement to provide the requested documents pertaining to Defendant's deportation file, the motion was deemed moot as to such discovery requests.Following oral argument and in response to the court's invitation to do so, Defendant advised the court by letter dated December 13, 2000 that he wished to file a supplemental motion to dismiss. The court directed such motion be filed not later than January 12, 2001 with oral argument at the court's discretion. As noted, Defendant's motion was filed, following a court approved extension of time, Doc. # 11, on January 16, 2001 (Doc. # 12) ("Defendant's Supplemental Motion"), along with a Memorandum in Support of Supplemental Motions (Doc. # 13) ("Defendant's Memorandum II"); the Government's Reply to Defendant's Supplemental Motion (Doc. # 16) ("Government's Reply") was filed January 30, 2001. Further oral argument was deemed unnecessary. For the reasons which follow, Defendant's motions should be DENIED.
FACTS
The statement of facts is taken from the motion papers filed in this proceeding.
Defendant, a native of Colombia, entered the United States in June 1982, at age 16, and was deported from the United States as an aggravated felon on March 13, 1997. Defendant's Memorandum II at 1-2. Prior to his deportation, Defendant acquired resident alien status. Id. On July 9, 1985, Defendant was convicted of possession of cocaine in a Massachusetts' state court and, on June 2, 1993, Defendant was convicted in United States District Court for the District of Massachusetts of conspiracy to possess cocaine and possession with intent to distribute cocaine, a felony. Exhibit A to Government's Reply at 1a.
On April 20, 1994, Defendant was served with an Order to Show Cause why he should not be deported based on the two narcotics convictions. Exhibit A to Government's Reply. The Order to Show Cause was acknowledged to have been received by Defendant through the placement of his thumb print on the document and by the signature of a witness. Id at 5. The Order to Show Cause explains in both English and Spanish the purpose of the deportation proceeding, and Defendant's rights in connection with the proceeding. Id. at 2, 4.
While Defendant contended in his first motion that he was not served with a Warrant of Deportation, Defendant's Memorandum I at 4, Defendant did not claim he was not served with the Order to Show Cause. Further, in its Reply, the Government attached a copy of a Warrant of Deportation in Defendant's name dated February 20, 1997, including Defendant's right index finger print and his signature acknowledging receipt of the Order to Show Cause on March 12, 1997. Exhibit C to Government's Response. Additionally, the Government submitted a copy of a Notice of Country to which Deportation has been Directed and Penalty for Reentry Without Permission ("Notice of Deportation") addressed to Defendant, dated March 12, 1997, which indicates Defendant acknowledged receipt of the Notice of Deportation by signing the document. Id. Defendant has not disputed the authenticity of these exhibits.
Specifically, the Order to Show Cause states, inter alia, that Defendant is believed by the United States Immigration and Naturalization Service to be an alien "not lawfully entitled to be in or remain in the United States." Exhibit A to Government's Reply at 2, 1. Defendant was informed that the Order to Show Cause explains his rights "as an alien in deportation." Id. It further states that Defendant will be granted a hearing at which he may contest whether he is "deportable." Id., 4. The Order to Show Cause also informed Defendant that an Immigration Judge will advise Defendant of any relief from "deportation" as is available to him. Id., 5.
The Notice of Deportation informed Defendant that he will be deported to Colombia, his native country. Notice of Deportation, supra. Additionally, the Notice of Deportation stated that if Defendant was deported as a aggravated felon, he must first obtain prior approval of the Attorney General if reentry to the United States is sought within 20 years of deportation. Id. Defendant does not dispute that he was deported as an aggravated felon. Nor does he dispute that he received, prior to his deportation hearing, the Order to Show Cause and, prior to his removal to Colombia, the Notice of Deportation.
DISCUSSION
Although Defendant initially argued that no warrant of deportation was served upon him and therefore his deportation was not effective to provide a basis for a charge under 8 U.S.C. § 1326 (a), Defendant's Memorandum I at 5, Defendant has not advanced such contention in his Supplemental Motion, see Defendant's Memorandum II, passim, and accordingly the court deems it to be withdrawn. In any event, the Government has provided a copy of such warrant demonstrating it was served upon Defendant. Exhibit C to Government's Reply. Moreover, the word "arrest" was deleted from § 1326 and, accordingly, after April 7, 1997, the date of Defendant's deportation, an administrative arrest is no longer an element of the offense under § 1326. See United States v. Ramirez — Gamez, 171 F.3d 236, 238 (5th Cir. 1999).
However, in his Supplemental Motion, Defendant continues to assert that because, prior to his deportation, he had gained permanent resident alien status in this country, unless he was given explicit notice at the time his deportation proceeding was commenced, the proposed deportation terminated such status, thereby depriving him of an accrued liberty interest in such status including an unconditioned right to reenter the United States, such lack of notice constitutes a violation of due process and renders the Indictment dismissible for failure to allege such prior notice as a necessary element of the offense. Defendant's Memorandum II at 6-7. Defendant concedes that no reported judicial authority supports this proposition. Id., at 4.
In United States v. Mendoza-Lopez, 481 U.S. 828 (1987), the Supreme Court held that a defendant charged under 8 U.S.C. § 1326 (a), in challenging the constitutionality of the alleged underlying deportation proceeding, is limited to showing that (1) the deportation proceeding was fundamentally unfair; (2) the defendant was prevented from seeking judicial review of the deportation decision; and (3) the alleged deficiencies in the deportation proceedings caused defendant actual prejudice, i.e., had defendant been advised of his right to appeal such appeal, if taken, would have resulted in a reversal of the deportation decision. Mendoza-Lopez, supra, at 839; United States v. Paredes-Battista, 140 F.3d 367, 378 (2d Cir.), cert. denied, 525 U.S. 859 (1998); United States v. Benitez-Villafuerte, 186 F.3d 651, 658 (5th Cir. 1999), cert. denied, 120 S.Ct. 838 (2000).
Here, although Defendant contends he seeks to dismiss the Indictment for failure to allege an essential element of lack of notice, it is evident that any asserted deficiency in notification of the consequences of deportation would necessarily be directed to the underlying deportation proceedings held prior to the Notice of Deportation. Thus, even if alleged in the Indictment, an allegation and proof of such specific notice at trial would serve no purpose as it would not affect the validity of Defendant's deportation. Additionally, an element of a charged offense is a question of fact for the jury, whereas a challenge to the constitutionality of an indictment is a question of law for the court. In this case, Defendant's challenge based on insufficient notice must therefore be viewed as an attack on the validity of the underlying deportation proceeding rather than a deficiency on the face of the Indictment itself.
However, Defendant makes no allegation that the underlying deportation was fundamentally unfair, that he was prevented from seeking judicial review, or that he was actually prejudiced by such alleged unfairness. Indeed, Defendant did unsuccessfully appeal his order of deportation after a hearing. Government's Reply at 6. Accordingly, his claim fails to meet the threshold for collateral attack on the underlying deportation proceedings as established by Mendoza-Lopez, supra, and, as such, it is without merit.
Even if Defendant's contention that the failure to more specifically advise him that deportation results in the loss of his status as a resident alien could constitute a fundamental unfairness within the holding of Mendoza-Lopez, the contention is equally without merit. Defendant has not submitted any evidence that he was not served with the Order to Show Cause prior to his deportation proceeding nor does Defendant claim that he was unable to understand either the English version of the information presented in the document or the parallel Spanish translations of the English advice as printed on the Order. Neither does Defendant assert that he was prevented from reading the text of the Order.
The court notes the Spanish word for deportation is "deportacion." Activa Technical and Business Dictionary Spanish English, available at http://www.activadic.com/Dicc/EnDic.htm. The word "deportacion" appears in the Spanish translation text of the Order to Show Cause no fewer than 16 times, including in the title of the Order. According to Webster's Dictionary, deportation in English means "the removal from a country of an alien whose presence in the country is unlawful or is held to be prejudicial to the public welfare." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 605. Assuming that a Spanish-English dictionary must necessarily consider the standard definition of an English word for which a Spanish equivalent is assigned by the dictionary, it follows that a Spanish only speaker would understand the word "deportacion" just as an English speaker would understand the word "deportation." Based on Defendant's 15 year residency in this country, it may be safely inferred Defendant also had a working knowledge of English.
Thus, Defendant cannot credibly argue he was reasonably unaware that the effect of the deportation proceeding was to physically remove him from the United States thereby terminating the privilege to work and live in this country afforded to him as a resident alien. As a permanent resident alien Defendant was entitled to due process in the underlying deportation proceedings. Kwong Hai Chew v. Colding, 344 U.S. 590, 596-97 (1953) (holding lawful permanent resident alien must be afforded opportunity to be heard in opposition to deportation proceedings as such alien may not be deprived of life, liberty or property without due process). Due process, however, requires only reasonable notice, not perfect notice. Weng v. United States, 137 F.3d 709, 713 (2d Cir. 1998) ("notice [must be] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . [W]hen notice is a person's due . . . [t]he means employed must be such as one desirous of actually informing the [person entitled to receive notice] might reasonably adopt. . . .") (quoting Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314-15 (1950) citations omitted)). Therefore, as long as Defendant was provided with reasonable notice of the purposes of the underlying deportation proceedings which resulted in Defendant's deportation, his right to due process as a permanent resident alien was met.
To suggest that in the absence of a more explicit explanation of the physical and legal consequences of deportation, the notice given to Defendant was a deprivation of due process is specious. No resident alien in similar circumstances could reasonably believe he was being involuntarily returned to his country of origin without any loss of the resident alien status he may previously have enjoyed. Nor could any such alien, given the detailed nature of the information provided in the Order to Show Cause, prior to the deportation proceeding and the subsequent Notice of Deportation prior to his physical removal including the explicit prohibition of return without prior executive approval, reasonably believe that he was being granted a short-term visit to his homeland at the government's expense.
Deportation from the United States by definition is, in both the English and Spanish languages, the negation of any right to work and enjoy life in this country including a right to return. Defendant, a native of Colombia, was given a reasonable opportunity to be aware of this drastic change of personal circumstances. Whatever liberty interest Defendant had in his resident alien status, there is no basis in law, or the record in this case, to find that he failed to receive fair and reasonable notice that the underlying deportation proceeding, upon which the Indictment is based, could result in the permanent abrogation of that interest.
The Indictment contains a plain and concise statement of the essential elements of an offense under 8 U.S.C. § 1326 (a). Fed.R.Crim.P. 7 (c). Except for Defendant's meritless contention regarding a failure to allege the specialized notice he claims is constitutionally required, Defendant does not contend otherwise.
CONCLUSION
Based on the foregoing, Defendant's motions (Doc. #s 6 12) should be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order . Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.
SO ORDERED.
ORDER
1. Pursuant to 28 U.S.C. § 636 (b)(1)(A) and (B), this Court referred this matter to the Honorable Leslie G. Foschio, United States Magistrate Judge.
2. On November 3, 2000, Defendant filed a Motion for Discovery and Dismissal of Indictment (Docket No. 6). Thereafter, Defendant filed a Motion to Dismiss the Indictment (Docket No. 12) on January 16, 2001.
3. On December 7, 2000, Judge Foschio heard oral argument with respect to Defendant's first Motion for Discovery and Dismissal of Indictment (Docket No. 6). On this same date, Judge Foschio deemed part of the motion for discovery withdrawn as moot and denied the other part of that motion. In addition, Judge Foschio granted Defendant leave to file supplemental papers regarding his Motion for Dismissal of Indictment. Upon receipt of Defendant's second Motion to Dismiss the Indictment (Docket No. 12), Judge Foschio deemed the matter submitted and no further argument was held.
4. On February 22, 2001, Judge Foschio issued a Report and Recommendation (Docket No.-17) denying Defendant's Motion for Discovery and Dismissal of Indictment (Docket No. 6) and Motion to Dismiss the Indictment (Docket No. 12).
5. On April 6, 2001, Defendant filed Objections (Docket No. 21) to Judge Foschio's February 22, 2001 Report and Recommendation.
6. This Court heard oral argument on the Defendant's objections and reserved decision on June 13, 2001.
7. This Court has carefully reviewed de novo the Report and Recommendation as well as the pleadings and materials submitted by the parties.
IT HEREBY IS ORDERED that this Court accepts the Magistrate Judge Foschio's February 22, 2001 Report and Recommendation in its entirety, including the authorities cited and the reasons given therein.
FURTHER, the Defendant's Motion for Discovery and Dismissal of Indictment (Docket No. 6) is DENIED.
FURTHER, the Defendant's Motion to Dismiss Indictment (Docket No. 12) is DENIED.
SO ORDERED.