United States v. Gill
748 F.3d 491
2d Cir.2014Background
- Gill, a Barbados native, entered the U.S. on a B-2 visa circa 1972 and became a lawful permanent resident in 1984.
- He committed several crimes, including an aggravated felony conviction for attempted sale of a controlled substance (1989) and a 1995 attempted robbery conviction.
- Gill sought §212(c) relief at his 1992 deportation proceedings; the IJ denied discretionarily and the BIA later dismissed his appeal on AEDPA grounds.
- AEDPA and IIRIRA repealed §212(c) in 1996, raising retroactivity questions for pre-repeal convictions.
- Gill emigrated in 2004, reentered illegally in 2007, and was indicted for illegal reentry under 8 U.S.C. §1326(a), (b)(2).
- Gill collaterally challenged his deportation order under §1326(d); the district court denied, and Gill appealed."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §212(c) relief remains available for trial-based pre-IIRIRA convictions. | Gill relies on Vartelas to negate ineligibility due to post-trial conviction. | Gill’s convictions preclude §212(c) relief after repeal. | Remanded for retroactivity and relief analysis. |
| Did misinforming Gill about relief options deprive him of judicial review under §1326(d)? | Misinformation could render habeas review realistically unavailable. | No clear record on realistic habeas access. | Remand for factual findings on habeas feasibility. |
| Was Gill prejudiced by alleged misadvice and thus the deportation process fundamentally unfair? | Misinformation caused procedural prejudice and potential relief loss. | No proven prejudice from misadvice. | Remand to assess prejudice and fairness. |
Key Cases Cited
- St. Cyr v. INS, 533 U.S. 289 (U.S. 2001) (retroactivity of §212(c) and reliance concerns )
- Vartelas v. Holder, 132 S. Ct. 1479 (U.S. 2012) (reliance on retroactivity and new legal consequences analysis)
- Rankine v. Reno, 319 F.3d 93 (2d Cir. 2003) (trial-based convictions and retroactivity—reliance-based approach overturned )
- Landgraf v. USI Film Prod., 511 U.S. 244 (U.S. 1994) (two-step retroactivity test; presumption against retroactivity)
- Gonzalez-Roque v. United States, 301 F.3d 39 (2d Cir. 2002) (collateral attack principles and §1326(d) framework)