354 F. Supp. 3d 362
S.D. Ill.2018Background
- Malcolm Brown, a Jamaican national, was convicted multiple times of sale/possession of marijuana in New York; one 2006 conviction was a felony (first-degree possession) and earlier misdemeanor sale convictions occurred in 2000–2001.
- In April 2008 Brown appeared pro se before an IJ in removal proceedings and asked about voluntary departure; the IJ told him he was ineligible because his sale-of-marijuana convictions were "aggravated felonies."
- The IJ entered an order of removal and Brown was removed in June 2008; he subsequently reentered and was later indicted for illegal reentry (8 U.S.C. § 1326).
- Brown moved to dismiss the § 1326 indictment, arguing the 2008 removal order was invalid because the IJ’s advice that he was ineligible for voluntary departure was legally erroneous and deprived him of due process.
- The government relied on contemporaneous BIA precedent and other authority to justify the IJ’s statement; Brown relied on later Second Circuit precedent (Martinez) rejecting the BIA’s interpretation that certain NY § 221.40 convictions were aggravated felonies.
- The district court concluded the IJ’s advice constituted fundamental error, that Brown was prejudiced (reasonable probability he would have sought and received voluntary departure), and that his failure to exhaust administrative remedies and obtain judicial review was excused; the indictment was dismissed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ’s misinformation about voluntary departure eligibility renders the removal proceeding fundamentally unfair | Brown: IJ wrongly told him sale convictions were aggravated felonies, foreclosing voluntary departure; that was fundamental error | Gov't: IJ applied prevailing BIA interpretation at the time; no error | Held: Fundamental error — IJ relied on then-prevailing but incorrect BIA interpretation later rejected by Second Circuit (Martinez) |
| Whether Brown was prejudiced by the error (reasonable probability he would have sought and obtained voluntary departure) | Brown: he requested voluntary departure at hearing, had long U.S. residence and family ties, and likely would have been granted relief | Gov't: adverse criminal record made relief unlikely; Brown allegedly waived or withdrew request | Held: Prejudice shown — Brown did not withdraw request; reasonable probability relief would have been granted (statutory eligibility and discretionary factors favored relief) |
| Whether administrative exhaustion should be excused | Brown: waiver of appeal was not knowing/intelligent because IJ’s incorrect denial foreclosed a meaningful choice | Gov't: Brown waived and exhausted was not excused | Held: Exhaustion excused — waiver not knowing/intelligent given pro se status and IJ’s affirmative misstatement |
| Whether Brown was deprived of opportunity for judicial review | Brown: erroneous IJ advice denied meaningful appeal and judicial review | Gov't: judicial review not denied if no fundamental error | Held: Opportunity for judicial review denied — unknowing waiver and fundamental error satisfied §1326(d) requirements |
Key Cases Cited
- Dada v. Mukasey, 554 U.S. 1 (2008) (describing voluntary departure as discretionary relief)
- United States v. Copeland, 376 F.3d 61 (2d Cir. 2004) (failure to advise of discretionary relief can be fundamental error; prejudice standard explained)
- United States v. Calderon, 391 F.3d 370 (2d Cir. 2004) (deportation proceeding fundamentally unfair where IJ erroneously denied discretionary relief)
- United States v. Sosa, 387 F.3d 131 (2d Cir. 2004) (excusing administrative exhaustion where waiver of appeal was not knowing and intelligent)
- INS v. St. Cyr, 533 U.S. 289 (2001) (judicial construction of statute applies retroactively to clarify prior meaning)
- Mendoza-Lopez v. United States, 481 U.S. 828 (1987) (unknowing waiver of appeal deprives alien of judicial review)
- Lopez v. Gonzales, 549 U.S. 47 (2006) (state drug offense qualifies as federal drug felony only if corresponding federal statute punishes it as felony)
- Martinez v. Mukasey, 551 F.3d 113 (2d Cir. 2008) (holding NY Penal Law § 221.40 sale convictions are not aggravated felonies for INA purposes)