United States v. Taveras, 511 F.Supp.3d 367

Juan Fernandez-Taveras, Dominican national and LPR since 1996, pleaded guilty in New York (Aug. 1998) to criminal possession of a controlled substance (N.Y. Penal Law § 220.18) after police found cocaine; sentenced to 3 years–life.
INS served a Notice to Appear (May 1999); removal proceedings occurred in late 1999–2000 during which defense counsel conceded removability under INA § 1227(a)(2)(B)(i); IJ ordered removal and denied voluntary departure; no BIA appeal was filed.
Fernandez-Taveras was deported to the Dominican Republic (July 2000).
He was later indicted (2018) for illegal reentry under 8 U.S.C. §§ 1326(a) and (b)(1) and moved under Fed. R. Crim. P. 12 to dismiss the indictment via a collateral attack on the underlying removal order.
Core legal contention: New York’s statutory definition of “cocaine” (including all isomers) is broader than the federal Controlled Substances Act (which excludes certain isomers for cocaine), so his § 220.18 conviction is not categorically a deportable controlled-substance offense; counsel’s concession and the IJ’s acceptance excused exhaustion. The court granted the motion and dismissed the indictment.

Issue	Plaintiff's Argument (Gov't)	Defendant's Argument (Fernandez-Taveras)	Held
Whether administrative exhaustion and opportunity for judicial review bar collateral attack	Defendant failed to exhaust and reserved right to appeal; collateral attack barred	Counsel and IJ erroneously conceded removability, making exhaustion not knowing/intelligent and thus excused	Excused under Calderon/Sosa reasoning; court proceeds to substantive unfairness inquiry
Whether N.Y. Penal Law § 220.18 is a deportable conviction under INA § 1227(a)(2)(B)(i) using the categorical approach	Realistic-probability test favors deportability; statute is effectively a CSA match	NY definition of “cocaine” on its face covers isomers (including positional isomers) that CSA excludes, so statute is broader and fails categorical test	NY statute is broader on its face; categorical analysis fails and conviction is not a deportable offense
Whether the removal was "fundamentally unfair" under 8 U.S.C. § 1326(d)(3)	Removal is valid because based on a state conviction and proceedings	Removal based on a non-deportable conviction is fundamentally unfair and invalidates the order	Removal was fundamentally unfair; § 1326(d)(3) satisfied; removal order invalid
Sufficiency of the Notice to Appear (NTA)	N/A in this decision (Gov't relies on controlling precedent)	NTA lacked date/time so facially insufficient, making order void ab initio	Court declines to decide because Second Circuit precedent (Banegas-Gomez) forecloses that argument

INS v. Mendoza-Lopez, 481 U.S. 828 (1987) (allows collateral attack on removal order in illegal-reentry prosecution)
United States v. Copeland, 376 F.3d 61 (2d Cir. 2004) (court must dismiss illegal-reentry indictment when § 1326(d) requirements met)
United States v. Calderon, 391 F.3d 370 (2d Cir. 2004) (excuses exhaustion where IJ and counsel gave legally erroneous statements making appeal futile)
United States v. Sosa, 387 F.3d 131 (2d Cir. 2004) (similar rule excusing exhaustion for erroneous IJ advice)
Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (articulates categorical approach to determine whether state conviction is a removable offense)
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (discusses the "realistic probability" test in categorical analysis)
Hylton v. Sessions, 897 F.3d 57 (2d Cir. 2018) (holds realistic-probability test inapplicable when statutory text itself shows mismatch)
United States v. Phifer, 909 F.3d 372 (11th Cir. 2018) (explains different kinds of isomers and relevance to categorical analysis)
Williams v. Barr, 960 F.3d 68 (2d Cir. 2020) (reinforces that textual mismatch obviates realistic-probability inquiry)