United States v. Daley, 702 F.3d 96

Daley appeals a judgment convicting him of illegal reentry under 8 U.S.C. § 1326 following a conditional plea.
The district court denied Daley’s motion to dismiss the indictment under § 1326(d), finding no reasonable probability of relief had notice been provided.
Removal order was entered in absentia during 1998 immigration proceedings after INS failed to notify Daley of the hearing despite a change-of-address.
Daley was removed to Jamaica and later returned to the United States, where he was reindicted for illegal reentry.
Daley argued the 1998 removal order was fundamentally unfair and sought dismissal under § 1326(d)(3).
The court affirmed, holding there was no reasonable probability Daley would have obtained discretionary relief at the 1998 removal proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the removal order was fundamentally unfair under § 1326(d)(3).	Daley contends the lack of notice prejudiced him.	Daley argues there was a reasonable probability of relief had he been present.	Yes; the district court properly found no reasonable probability of relief.
Whether the district court could consider Daley’s Hobbs Act plea as part of the prejudice analysis.	Daley relies on Scott to bar post-order conduct from influencing the analysis.	The court may consider relevant information as of the removal proceeding date.	Yes; the court correctly considered Daley’s Hobbs Act guilty plea as of 1998.
Whether Scott limits consideration to information at the time of removal proceedings.	Daley argues Scott forbids post-order information.	Scott allows reconstruction of information as of the disputed proceeding date.	Scott governs; the court may reconstruct information as of the date of removal and not beyond.

United States v. Scott, 394 F.3d 111 (2d Cir. 2005) (limits inquiry to information existing at the time of the removal proceeding)
United States v. Copeland, 376 F.3d 61 (2d Cir. 2004) (prejudice shown by a reasonable probability of a different outcome)
United States v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. 2002) (fundamental unfairness requires prejudice from error)
Barco-Sandoval v. Gonzales, 516 F.3d 35 (2d Cir. 2007) (cancellation of removal is discretionary; factors weighed in IJ’s discretion)
Edwards v. INS, 393 F.3d 299 (2d Cir. 2004) (prognostication role in reasonable probability analysis)
Ledesma v. Holder, 450 F.App’x 51 (2d Cir. 2011) (discretionary factors affect cancellation of removal)
Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010) (factor-balancing in discretionary relief decisions)
Jay v. Boyd, 351 U.S. 345 (1956) (discretionary relief and administrative grace considerations)
Strickland v. Washington, 466 U.S. 668 (1984) (prejudice standard for ineffective assistance-like review)