Opinion
No. 03-4837-AG.
February 26, 2007.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.
Petition for review from the Board of Immigration Appeals.
Jose L. Delcastillo, Del Castillo Associates, LLC, Hartford, Conn., for Petitioner.
Dione M. Enea, Special Assistant United States Attorney (Scott Dunn, Assistant United States Attorney, on the brief), for Roslynn R. Mauskopf, United States Attorney, Eastern District of New York, Brooklyn, N.Y., for Respondent.
Daniel A. McLaughlin and Michael Rato, Sidley Austin LLP, New York, N.Y., Amicus counsel.
PRESENT: Hon. AMALYA L. KEARSE, Hon. GUIDO CALABRESI, and Hon. ROSEMARY S. POOLER, Circuit Judges.
SUMMARY ORDER
Petitioner Oneil Myron Wilks ("Wilks"), a native and citizen of Jamaica and a legal permanent resident of the United States, petitions this court pursuant to § 242(a) of the Immigration and Nationality Act of 1952, as amended ("the Act" or "INA"), 8 U.S.C. § 1252(a), to review an April 7, 2003, order of the Board of Immigration Appeals ("BIA"). In that order, the BIA affirmed the January 9, 2001, decision of an immigration judge ("IJ") ordering Wilks removed from the United States on the basis of his conviction (entered by plea) for credit card theft in violation of Conn. Gen.Stat. 53a-128c, a crime for which he was sentenced to one year of imprisonment. Wilks argues that he is not subject to removal, because he is a derivative beneficiary of his father's United States citizenship or, in the alternative, because he can be considered a national of the United States. We assume the parties' familiarity with the facts and the specific issues on appeal.
The procedural history of this case is long and winding, and we recount here only those portions necessary to understand the disposition of the instant petition. On June 19, 2006, we filed, with the government's stipulation, a non-dispositive summary order which ordered that the case be "held pending Wilks's effort in state court to reduce, nunc pro tunc, his criminal sentence by one day or more." Wilks v. Gonzales, 186 Fed. Appx. 93 (2d Cir. 2006) (citing In re Cota-Vargas, 23 I. N. Dec. 849, 851 (BIA 2005) (court's nunc pro tunc reduction of sentence to less than 365 days "precludes the underlying conviction . . . from qualifying as an aggravated felony conviction" within the meaning of 8 U.S.C. § 1101(a)(43)(G))). Despite the government's commendable position, however, on September 11, 2006, counsel for Wilks, Jose L. DelCastillo ("DelCastillo"), informed this court that "[w]e have reviewed the facts of Cota-Vargas against the facts of our clients [sic] case and concluded that to make a motion for this nunc pro tunc modification based on Cota-Vargas is not within the best interest [sic] of our client."
Wilks's previous efforts to obtain citizenship had been dogged by INS errors. The government plausibly argued that those errors were no longer remediable. But in view of those errors, it recommended the above-mentioned actions.
Following receipt of DelCastillo's letter, this court learned that DelCastillo had recently become the subject of a grand jury investigation. We ordered, on September 20, 2006, that amicus counsel be appointed to determine (1) whether the actual or potential conflict of interest resulting from such investigation was waivable; (2) whether, if the conflict was waivable, Wilks had in fact knowingly and voluntarily waived his right to unconflicted counsel; and (3) whether, in particular, Wilks had knowingly and voluntarily waived the relief possibly available to him under Cota-Vargas. Amicus counsel met with Wilks and, on November 15, 2006, filed a brief under seal with this court.
Subsequent to the filing of amicus counsel's briefing, DelCastillo was indicted in the District of Connecticut on violations of 18 U.S.C. §§ 2, 1001, and 1546. It was possible that amicus counsel's previous analysis of whether the potential or actual conflict of interest was waivable, and whether Wilks had in fact waived it, had been based on amicus's assumptions about "the nature of the grand jury investigation, the facts about which[, at the time,] remain[ed] unclear." We therefore invited amicus counsel to indicate to us whether the indictment affected any part of the analysis in its brief.
In response, amicus counsel sent this court a 28(j) letter stating, inter alia, that they
believe[] the indictment presents a sufficiently new conflict (over and above the mere existence of a grand jury investigation) that Connecticut ethical rules require that Mr. Del Castillo discuss the indictment with the Petitioner, explaining to him with specificity the nature of the charges, the potential conflicts that arise from the charges, and the potential outcome of the charges, and obtain his continuing consent to the representation. . . . Only in the event that Petitioner agrees to waive the conflict after being so informed by Mr. Del Castillo could this conflict be deemed waived.
In light of this letter, we ordered, on January 24, 2007, that DelCastillo make such disclosure to Wilks.
On February 13, 2007, amicus counsel informed this court, by letter, that Wilks had "confirmed that he had been provided with copies of both indictments against Mr. Del Castillo and that Mr. Del Castillo had explained the significance of the charges to him." Moreover, amicus counsel stated that they were "satisfied after questioning Mr. Wilks that he understood the significance of the indictments and the potential conflict," yet "continues to consent to Mr. Del Castillo's representation of him."
Having carefully reviewed the evidence, we agree with amicus counsel. We conclude (1) that the indictment presents, in the particular circumstances of this case, a waivable conflict, and (2) that Wilks has in fact waived his right to unconflicted counsel, as well as the possibility of relief under Cota-Vargas. As such, we must consider Wilks's assertions (1) that he is a derivative beneficiary of his father's United States citizenship, and, alternatively, (2) that, on the facts of this case, he should be considered a national of the United States.
As amicus counsel notes, DelCastillo appears to have more than twenty appeals presently pending before the Board of Immigration Appeals. These appeals — and any other proceedings in which DelCastillo might currently be participating — may present distinct conflict issues from those involving Wilks, and we have no occasion to consider them here.
We conclude that, in the particular circumstances of this case, neither of Wilks's contentions has merit. Accordingly, the petition for review is DENIED. Our review having been completed, the stays of removal that this court previously granted in this petition are VACATED. We thank amicus counsel, Daniel A. McLaughlin and Michael Rato of Sidley Austin LLP, for their commendable, assiduous efforts.