167 F. Supp. 3d 383
E.D.N.Y2016Background
- Shani Moncrieffe, a Jamaican lawful permanent resident since 1982, pled guilty in New York (1993) to robbery in the first degree (N.Y. Penal Law §160.15); the plea transcript/certified plea record is not in the immigration record and is now unavailable.
- In 1995 an Immigration Judge (IJ) found Moncrieffe deportable as having committed an aggravated felony (a "crime of violence") and a firearms offense; Moncrieffe proceeded pro se, was told no relief was available, and indicated he wanted to consult his mother.
- The Board of Immigration Appeals (BIA) remanded for a conviction record, later affirmed the IJ by inferring the conviction rested on subsections involving a firearm, and held Moncrieffe ineligible for relief (including under then-section 212(c)).
- Moncrieffe was deported in 1999, returned to the U.S. years later, and was indicted in 2015 for illegal reentry under 8 U.S.C. §1326, which requires a valid prior deportation order as an element.
- Moncrieffe moved to dismiss the §1326 indictment, arguing: (1) he exhausted administrative remedies; (2) he was deprived of meaningful judicial review because he was misinformed and uncounseled; and (3) the 1995 deportation was fundamentally unfair because the IJ/BIA misapplied the categorical approach and improperly denied discretionary relief.
Issues
| Issue | Plaintiff's Argument (Moncrieffe) | Government's Argument | Held |
|---|---|---|---|
| Whether administrative exhaustion under §1326(d)(1) is satisfied | Moncrieffe timely appealed to the BIA; was misled about relief so failure to pursue further remedies excused | He did not seek judicial review (circuit appeal or habeas) after BIA and thus failed exhaustion | Held: exhaustion satisfied (timely BIA appeal; misinformation excused further pursuit) |
| Whether Moncrieffe was deprived of opportunity for judicial review (§1326(d)(2)) | IJ and BIA affirmatively misinformed pro se, young, uncounseled Moncrieffe that no relief was available, so he lacked a realistic opportunity to seek review | Judicial review (circuit appeal or habeas) was available but Moncrieffe failed to use it | Held: deprived of meaningful judicial review (misinformation and pro se status made appeal unrealistic) |
| Whether the 1995 deportation order was fundamentally unfair (§1326(d)(3)) because his NY robbery conviction qualified as an aggravated felony (crime of violence) | The IJ/BIA misapplied the categorical approach: NY robbery's minimal-force element may not meet federal §16(a) "violent force" requirement; record did not show conviction necessarily involved firearm | Any robbery necessarily involves force; BIA permissibly inferred defendant pled to firearm-related subsection or could use modified categorical materials | Held: deportation was fundamentally unfair — categorical approach misapplied; minimal New York force does not necessarily equal federal violent force; BIA improperly relied on impermissible inferences and inadequate record |
| Whether BIA denial of 212(c) relief rendered proceedings unfair | BIA denied 212(c) based on a now-discredited "comparable grounds" rule; but court did not need to reach merits because removability was invalid | BIA applied the law applicable at the time; later changes cannot be applied retroactively | Held: court did not reach full merits of 212(c) claim here (analysis unnecessary given dispositive categorical error), but noted BIA’s comparable-grounds rule is suspect post-Judulang if removability were established |
Key Cases Cited
- Mendoza-Lopez v. United States, 481 U.S. 828 (1987) (administrative findings used to impose criminal penalties require meaningful judicial review)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (explains categorical approach and presumption about the "least of the acts" criminalized)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" in ACCA/§16 requires violent force capable of causing pain or injury)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (§16 targets violent, active crimes and guides interpretation of "crime of violence")
- United States v. Copeland, 376 F.3d 61 (2d Cir. 2004) (no realistic habeas opportunity means failure to seek habeas does not bar collateral attack under §1326(d))
- United States v. Calderon, 391 F.3d 370 (2d Cir. 2004) (affirmative misinformation about relief can deprive alien of realistic opportunity for judicial review)