UNITED STATES OF AMERICA, Appellee, —v.— RICARDO ALVIN GILL, Defendant-Appellant.
Docket No. 12-2207-cr
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 7, 2014
August Term, 2013 (Argued: November 26, 2013)
Defendant-Appellant Gill appeals from a judgment of the United States District Court for the Western District of New York (Skretny, J.), denying his motion to dismiss the indictment for illegal reentry in violation of
MICHAEL J. STACHOWSKI, Buffalo, NY, for Defendant-Appellant.
KATZMANN, Chief Judge:
This case requires us to decide whether the petitioner Ricardo Allen Gill can sustain a collateral challenge to his order of deportation, which is a defense to a prosecution for illegal reentry in violation of
I. Factual Background
Gill, a native and citizen of Barbados, came to the United States on a B-2 visa in or about 1972 with his parents, three brothers, and three sisters. At that point, he was approximately five years old. While he was growing up, he went to school in the Bronx and had various jobs. He eventually became a lawful permanent resident on January 6, 1984, and his parents and siblings became lawful permanent residents as well.
In or around 1986, Gill began using crack cocaine and committing crimes—largely theft-related—to support his habit. As a result, he was prosecuted and pleaded guilty to several related offenses including, as relevant to this case, a 1989 conviction for attempted criminal sale of a controlled substance in the third degree in violation of
In 1991, Gill met Michelle McNeal, a United States citizen, and they married in 1993. She was pregnant when they met and together they raised her son, Randy Hinkston (“Randy“). Gill worked a steady job and paid for McNeal‘s tuition as she pursued her nursing degree, as well as the costs of raising her son, whom Gill treated as his own.
At his November 1992 hearing in immigration court, Gill conceded that he was deportable and applied for a waiver of deportation under § 212(c).2 While his immigration case was pending, Gill was convicted after trial of attempted robbery in the first degree in violation of
II. Deportation Proceedings
Gill‘s merits hearing in his immigration case took place before an immigration judge (“IJ“) on January 8, 1997, while he was serving his sentence for attempted robbery. Gill, his wife, his brother, his niece, and his mother testified about the important role that Gill played as a father to Randy, the presence of Gill‘s extended family in the United States, his work history, the fact that he had paid taxes, and his criminal convictions. His wife testified that Gill had paid for all of Randy‘s expenses and her tuition to pursue her nursing degree. The IJ reserved decision, noting that Gill had strong family support and had “done an awful lot to help [him]self” in becoming drug-free, but also had a significant criminal history, App‘x 142. The IJ indicated that he was undecided at the conclusion of the hearing.
On January 27, 1997, the IJ denied Gill‘s application for § 212(c) relief as a matter of discretion. In a written decision, the IJ noted Gill‘s strong family ties, but concluded that Gill‘s equities were insufficient to overcome his “serious,
Gill appealed to the BIA on February 26, 1997. The INS‘s Assistant District Counsel of the New York District submitted a letter-brief asking the BIA to dismiss the appeal on the ground that Gill was statutorily ineligible for relief because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), Pub. L. No. 104-132, § 440(d) 110 Stat. 1214, 1277-78, made noncitizens with aggravated felony convictions (like Gill) ineligible for § 212(c) relief. In that letter-brief, the INS argued that AEDPA applied to all cases that were pending when AEDPA went into effect. The BIA dismissed Gill‘s appeal on that basis in a single-member, per curiam order dated August 21, 1997. The BIA did not reach the merits of Gill‘s appeal, which challenged the IJ‘s discretionary denial of § 212(c) relief. Gill did not seek habeas review and was deported to Barbados on April 23, 2004, after serving his sentence for the 1995 conviction.
III. Reentry Charge and Motion to Reopen
Gill returned to the United States without authorization in approximately 2007. Until 2010, he maintained a residence in Buffalo, New York, and a steady job as a residential maintenance worker. He has had no other convictions since
On April 29, 2010, Gill moved the BIA to reopen his deportation proceedings. His motion to reopen was based on INS v. St. Cyr, 533 U.S. 289 (2001), a decision that post-dated his order of deportation, which held that § 212(c) relief remained available to noncitizens “whose convictions were obtained through plea agreements and who, notwithstanding those convictions, would have been eligible for § 212(c) relief at the time of their plea under the law then in effect,” id. at 326. Gill argued that the BIA had dismissed his appeal based on an erroneous finding that he was ineligible for § 212(c) relief, and therefore he had been denied meaningful administrative and judicial review of the IJ‘s decision. He acknowledged that his motion was untimely, but sought equitable tolling since St. Cyr was not decided until well after the time limit for filing a motion to reopen had passed. He also sought sua sponte reopening as a matter of discretion.
Gill petitioned this Court for review of the BIA‘s denial, and on September 22, 2010, we affirmed the BIA‘s decision in all respects, dismissing Gill‘s petition as “lack[ing] an arguable basis in law or fact.” App‘x 168. We found that “[t]he BIA did not abuse its discretion in denying petitioner‘s motion to reconsider because the motion was untimely and [he] failed to demonstrate due diligence to
Gill then responded to the criminal illegal reentry charge by collaterally challenging the deportation order. He moved to dismiss the indictment pursuant to
The magistrate judge handling pretrial matters found that Gill had not established the second or third requirement of
On February 16, 2012, Gill pleaded guilty to the illegal reentry charge, specifically reserving his right pursuant to
STANDARD OF REVIEW
“We review de novo the district court‘s denial of [a defendant‘s] motion to dismiss the indictment on the basis of a collateral attack on his deportation order under
DISCUSSION
“[I]t is well settled that the procedures employed [in deportation or removal hearings] must satisfy due process. . . . Consequently a defendant may collaterally attack an order of deportation on due process grounds where, as here, the order becomes an element of a criminal offense.” Gonzalez-Roque, 301 F.3d at 45 (internal quotation marks omitted). The mechanism for collaterally attacking a deportation order that forms the basis of a criminal offense is set forth in
In order to successfully challenge a deportation order under
(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;
(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and
(3) the entry of the order was fundamentally unfair.
On appeal, Gill argues that the district court erred in concluding that, because Gill did not file a habeas petition, he cannot establish that he was deprived of judicial review of his deportation order. He maintains that he had no realistic opportunity to seek judicial review because he was misinformed by the BIA that he was ineligible for relief.5 He argues that he was indeed eligible for relief, a fact which Vartelas makes clear, and consequently he was unfairly deprived of any realistic possibility of seeking judicial review. In this same vein, he contends that the entry of his deportation order was fundamentally unfair because he was deemed ineligible for a form of relief for which, under Vartelas, he is eligible.
I. Retroactivity Analysis and § 212(c) relief
Gill‘s arguments hinge on the availability of § 212(c) relief for noncitizens who were eligible for such relief but, prior to the 1996 congressional repeal of § 212(c), were convicted of an aggravated felony after trial. Because the elimination of § 212(c) relief affected a large number of people, there has been a considerable amount of litigation to determine who remains eligible for this form of relief. As a result, there have been significant shifts in the law governing the continuing availability of this relief for individuals who would have been eligible for § 212(c) relief prior to § 212(c)‘s repeal. All of these shifts occurred after Gill‘s
A. Continuing Availability of § 212(c) Relief
Prior to 1996, many noncitizens with criminal convictions could seek a discretionary waiver of deportation under § 212(c). This form of relief could be granted, in the discretion of the Attorney General, to noncitizens who could show that they were lawful permanent residents, had accrued seven consecutive years of “lawful unrelinquished domicile,” and had not been convicted of an aggravated felony for which they had served a term of at least five years. See
In the early and mid-1990s, Congress limited the classes of noncitizens eligible for this form of discretionary relief and then eliminated this type of relief altogether. In 1990, Congress amended § 212(c) to preclude from discretionary relief anyone who had served an aggregate term of imprisonment of at least five years as a result of one or more aggravated felony convictions. See Immigration Act of 1990, Pub. L. No. 101-649, § 511, 104 Stat. 4978, 5052 (amending
Since the enactments of AEDPA and IIRIRA, we and other courts have been called upon to determine the retroactive reach of these statutes. In this endeavor, we are guided by Landgraf v. USI Film Products, 511 U.S. 244 (1994), the touchstone case regarding statutory retroactivity. Landgraf sets forth a two-step test to determine whether a law should apply to conduct that occurred prior to the law‘s enactment: we must (1) consider whether Congress “expressly prescribed the statute‘s proper reach,” and, if it did not, (2) “determine whether
Immediately after the passage of AEDPA, the BIA held that § 440(d) of AEDPA applied retroactively to all pending applications for § 212(c) relief, even if the criminal conviction occurred before AEDPA was enacted and even if the applicant‘s removal proceedings were initiated prior to AEDPA‘s enactment. See Matter of Soriano, 21 I. & N. Dec. 516, 518-21 (BIA 1996; Op. Att‘y Gen. 1997). However, it also held that § 440(d) did not apply retroactively to noncitizens who, like Gill, had applied for § 212(c) relief before AEDPA was enacted. Id. On February 21, 1997, the Attorney General vacated the BIA‘s opinion and concluded that § 440(d) applied to all noncitizens who had not been granted
In St. Cyr, this Court disagreed with the Attorney General‘s interpretation, rejecting the notion that AEDPA applied retroactively in that case in which the noncitizen had chosen to plead guilty to a crime that would have left him eligible for § 212(c) relief prior to § 212(c)‘s repeal. St. Cyr, 229 F.3d at 421. Applying the second step of the Landgraf analysis, we found it relevant that noncitizens might have relied “on the possibility of receiving a waiver of deportation” under § 212(c) when they entered their pleas. Id. at 419. We further noted that “[a] ‘legal change that would have an impact on private parties’ planning’ triggers the presumption against retroactivity,” id. at 418 (quoting Landgraf, 511 U.S. at 281-82), and reasoned that the rescission of § 212(c) relief would change
The Supreme Court affirmed. St. Cyr, 533 U.S. at 326. It began by noting the “deeply rooted” presumption against retroactive legislation, id. at 316 (internal quotation marks omitted), and the “special concerns” it raises, id. at 315. It noted that two legal consequences resulted from St. Cyr‘s conviction: (1) he became deportable and (ii) he became eligible for § 212(c) relief. Id. at 314-15. Among the relevant considerations, it noted that, “[g]iven the frequency with which § 212(c) relief was granted in the years leading up to AEDPA and IIRIRA, preserving the possibility of such relief would have been one of the principal benefits sought by defendants deciding whether to accept a plea offer or instead to proceed to trial.” Id. at 323 (footnote omitted). And, the Court observed that noncitizen defendants considering whether to plead or proceed to trial are “acutely aware of the immigration consequences of their convictions.” Id. at 322.
In the years that followed, we were asked to apply St. Cyr‘s retroactivity holding in the case of a noncitizen who had been convicted after trial rather than through a guilty plea. In Rankine v. Reno, we considered whether “the fact that the petitioners were convicted after trial dictate[s] a different conclusion on the retroactive effect of IIRIRA than that reached in St. Cyr, where the petitioners had pled guilty[.]” 319 F.3d at 98. We found that it did because we could not “conclude, as we must to find impermissible retroactivity, that the petitioners chose to go to trial in reliance on the availability of § 212(c) relief.” Id. at 100. In so doing, we reasoned that, “[u]nlike aliens who entered pleas, the petitioners [who were found guilty after trial] made no decision to abandon any rights and
B. Vartelas v. Holder
We built upon our reliance-focused retroactivity analysis when we decided Vartelas v. Holder, 620 F.3d 108 (2d Cir. 2010). That case hinged on the retroactive application of
The Supreme Court reversed in Vartelas v. Holder, 132 S. Ct. 1479, 1484 (2012). After noting the presumption against retroactive legislation, and the fact
In reversing our precedent, the Supreme Court expressly rejected our conclusion that Vartelas could not demonstrate that the statute had an impermissible retroactive effect because he could not show actual reliance on prior law. Id. at 1490. First, it rejected our holding that reliance on prior law is “essential to application of the antiretroactivity principle,” id. at 1491; expressly approving of Olatunji, it pointed out that “the presumption against retroactive application of statutes does not require a showing of detrimental reliance.” Id. at 1491. Second, it explained, to the extent that “reasonable reliance” is relevant, it is simply one of several “‘familiar considerations’ animating [the antiretroactivity] presumption.” Id. at 1491 (quoting Landgraf, 511 U.S. at 270) (noting that fair notice and settled expectations are among the other factors). The
Vartelas‘s retroactivity analysis—in particular its discussion of reliance interests—thus compels us to reevaluate our prior retroactivity analyses that focused on reliance interests. In the instant case, it requires us to find that Rankine‘s holding, as least as it relates to convictions obtained after trial, has been implicitly overruled.7 We do not make such a finding lightly but, for the reasons explained below, we must join the weight of post-Vartelas precedent on this issue in finding that prior Rankine-aligned precedents have been overruled by Vartelas.8
Considering the repeal of
Our reading of Vartelas is bolstered by the fact that the Fifth and Ninth Circuits have concluded that their own Rankine-like precedents were overruled by Vartelas, thus joining the Third, Eighth, and Tenth Circuits in holding that
Moreover, there is no precedent of which we are aware that conflicts with our understanding of Vartelas‘s impact on Rankine-aligned precedents.11 Only the Eleventh Circuit, in an unpublished decision, has found that Vartelas does not affect its retroactivity analysis with respect to
Our holding today is also consistent with the “commonsense, functional” view that we must take in our retroactivity determination, Martin v. Hadix, 527 U.S. 343, 357 (1999), because it reflects the practical reality of noncitizens who were facing a choice between pleading and going to trial. For a defendant who maintained his innocence and exercised his right to trial, it might have been rational to do so if he knew that a conviction for the top charge of an indictment
To the extent that reliance plays any role on our decision today, we find that it weighs in Gill‘s favor. As explained above, the signals we believed that St. Cyr sent about the distinct position of noncitizens who chose to go to trial, see Rankine, 319 F.3d at 100, have been clarified in subsequent Supreme Court
For these reasons, we find that the repeal of
II. Deprivation of Judicial Review
First, the district court found that, because Gill did not challenge the BIA‘s order by filing a habeas petition under
In reviewing cases involving collateral attacks under
Applying these principles in United States v. Lopez, we reviewed a
Lopez is highly relevant to this case because both Gill and Lopez were incorrectly informed that they were ineligible for
Gill was represented before the IJ and BIA, but it appears that he was pro se, as he lacked the financial resources to hire an immigration attorney, and was detained for most or all of time between the BIA decision and his deportation—which was the time period during which he theoretically could have filed a habeas petition.13 In addition, Gill has asserted that he was informed by his immigration attorneys (at a minimum, the attorney who represented him until
The district court made no factual findings regarding these issues, nor did it analyze whether seeking habeas review was realistically possible given the facts of Gill‘s case. Therefore, we think that it is appropriate to remand to the district court for fact-finding and consideration of whether the combination of the BIA decision and bad legal advice from his lawyer deprived Gill of a meaningful opportunity for judicial review.
III. Fundamental Fairness
Finally, “[f]or an alien to succeed in collaterally attacking his deportation order, he ‘must show . . . that the administrative proceedings were fundamentally unfair in some respect that would have entitled him to relief on direct appeal.‘” Fernandez–Antonia, 278 F.3d at 157 (quoting United States v. Fares, 978 F.2d 52, 57 (2d Cir. 1992)). To show fundamental unfairness, a defendant “must show both a fundamental procedural error and prejudice resulting from
We also remand for findings as to whether, assuming that Gill has satisfied
CONCLUSION
For the foregoing reasons, the matter is remanded to the district court in accordance with the procedures of United States v. Jacobson, 15 F.3d 19, 22 (2d Cir. 1994), for determination of whether Gill was deprived of the opportunity for judicial review and whether the entry of his deportation order was fundamentally unfair. If it finds that Gill has satisfied the requirements of
Notes
Id. at 774.Aliens in [the petitioner‘s] position—those who declined a plea agreement and went to trial—could instead have negotiated to plead guilty to a nonexcludable offense. Alternatively, an alien in [the petitioner‘s] shoes who decided not to appeal might have chosen not to do so because [the petitioner] had been sentenced to five years or fewer in prison, which, under pre-IIRIRA rules, would allow [the petitioner] to remain eligible for discretionary relief under § 212.