United States v. Daley, No. 11-2987 (2d Cir. 2012)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Second Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Second Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Defendant appealed from the judgment of the district court convicting him of illegal reentry under 8 U.S.C. 1326, following a conditional plea. While defendant's 1998 immigration proceedings were pending, he was arrested for robbery and detained in New York. Although he notified the INS of his new address, the INS did not properly process the address change and failed to notify defendant of his ongoing immigration proceedings, so that he was ordered removed in absentia. Defendant was removed to Jamaica but he subsequently returned to the United States. He was arrested again and indicted for illegal reentry. Defendant moved to dismiss the indictment on the ground that he was given no notice of the 1998 removal proceedings. Because the district court properly considered defendant's completed criminal conduct in ruling that the entry of the removal order against defendant in abstentia was not fundamentally unfair because there was no reasonable probability that defendant would have obtained relief had he received notice of the removal proceeding and been present, the court affirmed the judgment.
Download PDF
11-2987-cr United States v. Daley 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: September 6, 2012 Decided: December 7,2012) Docket No. 11-2987 - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.COURTNEY DALEY, Defendant-Appellant. - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, CARNEY, Circuit Judge, and GLEESON, District Judge.* Defendant Courtney Daley appeals from the judgment of 30 the United States District Court for the Eastern District of 31 New York (Korman, J.), convicting him of illegal reentry 32 under 8 U.S.C. § 1326, following a conditional plea. 33 challenges the denial of his motion to dismiss the * Daley The Honorable John Gleeson, United States District Judge for the Eastern District of New York, sitting by designation. 1 indictment. 2 removal order against Daley in absentia was not 3 fundamentally unfair because there was no reasonable 4 probability that Daley would have obtained relief had he 5 received notice of the removal proceeding and been present. 6 Because the district court properly considered Daley s 7 completed criminal conduct in making this discretionary 8 determination, we affirm the judgment. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The district court ruled that the entry of the YUANCHUNG LEE, Federal Defenders of New York, Inc., New York, NY, for Appellant Courtney Daley. TIANA A. DEMAS (David C. James, on the brief), Assistant United States Attorneys, for Loretta E. Lynch, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee United States of America. DENNIS JACOBS, Chief Judge: Defendant Courtney Daley appeals from the judgment of 24 the United States District Court for the Eastern District of 25 New York (Korman, J.), convicting him of illegal reentry 26 under 8 U.S.C. § 1326, following a conditional plea. 27 moved to dismiss the indictment on the ground that he was 28 given no notice of the 1998 removal proceedings after which 29 a removal order was entered in absentia. 2 Daley The United States 1 District Court for the Eastern District of New York (Korman, 2 J.) ruled that the entry of the removal order was not 3 fundamentally unfair because there was no reasonable 4 probability that Daley would have obtained relief had he 5 received notice of the removal proceeding and been present. 6 While his 1998 immigration proceedings were pending, 7 Daley was arrested for robbery under the Hobbs Act and 8 detained at the Metropolitan Detention Center in Brooklyn, 9 New York. Although he notified the Immigration and 10 Naturalization Service ( INS ) of his new address, INS did 11 not properly process the address change and failed to notify 12 Daley of his ongoing immigration proceedings, so that he was 13 ordered removed in absentia. 14 Daley was removed to Jamaica, his country of origin, 15 but he subsequently returned to the United States. He was 16 arrested again--this time following a domestic altercation 17 with his estranged wife--and indicted for illegal reentry 18 under 8 U.S.C. § 1326. 19 pursuant to 8 U.S.C. § 1326(d), on the ground that his 1998 20 removal order was fundamentally unfair because he was 21 removed in absentia. 22 unfairness, however, Daley had to show that, but for the He moved to dismiss the indictment In order to show fundamental 3 1 Government s error, there was a reasonable probability that 2 he would have obtained relief from the Immigration Judge 3 ( IJ ). 4 probability. 5 plea that preserved his right to appeal the denial of his 6 motion to dismiss the indictment. 7 months imprisonment and timely appealed. 8 discussed below, we affirm the judgment. The district court concluded that there was no such Daley ultimately entered a conditional guilty Daley was sentenced to 30 For the reasons 9 10 11 BACKGROUND Daley was born in Kingston, Jamaica, in 1968, and came 12 to the United States at the age of fifteen as a lawful 13 permanent resident. 14 for possession of a loaded firearm and bail jumping. 15 he served a one-year sentence, INS initiated removal 16 proceedings on January 14, 1998, pursuant to Section 17 237(a)(2)© of the Immigration and Nationality Act (which 18 allows removal of any alien convicted of certain firearm 19 offenses). 20 In 1995, Daley was indicted in New York After At Daley s initial appearance before the IJ in February 21 1998, he was granted additional time to find a lawyer. 22 preliminary hearing was eventually scheduled for September 4 A 1 18, 1998. 2 arraigned in the Eastern District of New York on federal 3 robbery charges under the Hobbs Act (18 U.S.C. § 1951). 4 Daley pled guilty on August 18, 1998, but that conviction 5 did not become final until March 1999. 6 In May 1998, however, Daley was arrested and During the summer of 1998--because of his Hobbs Act 7 arrest--Daley was held without bail at the Metropolitan 8 Detention Center ( MDC ) in Brooklyn. 9 his girlfriend notified the INS that he was in custody at At Daley s request, 10 the MDC and submitted a change-of-address form on his 11 behalf. 12 name, alien registration number, and Bureau of Prisons 13 number, clearly indicating that Daley was now residing at 14 the MDC in Brooklyn. 15 It was received by INS and listed Daley s full INS somehow misplaced or mishandled this form. 16 Presumably because he was not informed of the date, Daley 17 failed to appear for his September 1998 hearing before the 18 IJ. 19 incarcerated, and the IJ adjourned to permit INS counsel to 20 determine Daley s whereabouts. 21 subsequent hearing on October 23, 1998, and INS wrongly At the hearing, INS suggested that Daley might be 22 5 Daley did not appear at the 1 informed the IJ that Daley was not in federal or state 2 custody. The IJ ordered Daley removed in absentia. 3 Daley was subsequently sentenced to 37 months 4 imprisonment for his Hobbs Act conviction, and upon 5 completing that sentence in January 2001, he was deported to 6 Jamaica. 7 States. 8 9 Within a year, Daley returned to the United In February 2010, Daley was again arrested--this time for allegedly threatening his then-estranged wife in 10 Brooklyn. 11 authorities learned of Daley s unlawful presence in the 12 United States. 13 District of New York for illegal reentry after deportation, 14 in violation of 8 U.S.C. §§ 1326(a), (b)(2). 15 As a result of that arrest, immigration A grand jury indicted Daley in the Eastern Daley moved to dismiss the indictment pursuant to Rule 16 12 of the Federal Rules of Criminal Procedure and 8 U.S.C. 17 § 1326(d). 18 that it would be fundamentally unfair to rely on the 1998 19 removal order to establish an element of the illegal reentry 20 offense because the 1998 removal order was entered in 21 violation of his due process rights. 22 23 Daley argued, pursuant to 8 U.S.C. § 1326(d), At a November 2010 evidentiary hearing on Daley s motion to dismiss the indictment, Marguerite Mills, 6 1 Assistant Chief Counsel for U.S. Immigration and Customs 2 Enforcement, testified as follows concerning INS policy in 3 place at the time: if the IJ had been notified of Daley s 4 Hobbs Act guilty plea on the day of Daley s removal hearing 5 (October 23, 1998), the IJ would have administratively 6 closed the case until the Hobbs Act conviction became final; 7 and after the conviction became final, the IJ could have 8 reopened the case, denied Daley any discretionary relief 9 (including cancellation of removal), and ordered him 10 11 removed. In response, Daley relied almost exclusively on United 12 States v. Scott, 394 F.3d 111 (2d Cir. 2005), arguing that 13 the district court should not consider future occurrences 14 when determining whether entry of the removal order was 15 fundamentally unfair. 16 Id. at 119. The district court denied Daley s motion from the 17 bench, on the ground that the failure of notice did not 18 prejudice Daley because he would not have been granted 19 cancellation of removal on October 23, 1998. 20 court carefully distinguished Scott: I m not looking at 21 future occurrences. 22 time of the hearing. . . . 23 Scott. The district I m looking at what had occurred at the And it s what distinguishes In other words . . . if I am going to look at all of 7 1 the relevant factors at the time of the hearing, then you 2 lose. 3 (App. 208-09). 4 5 6 7 8 9 10 11 12 13 Tr. of Mot. Hr g, at 39-40 (Nov. 22, 2010) The district court explained further: [T]he temporal limitation of Scott deals with a crime that s committed after that hearing. If you wanted to consider[] what happened, all the relevant information as of the date of the hearing and the relevant information includes his guilty plea for which he was ultimately sentenced, and then the question becomes he wouldn t have gotten relief. At most, they would have put off the hearing but . . . he probably wouldn t have gotten relief based on the admission that he made that he committed [Hobbs Act] extortion . . . . 14 Id. at 43 (App. 212). 15 reasonable probability that Daley would have been granted 16 relief had he been present at the 1998 hearing, thus he was 17 not prejudiced, and could not dismiss his indictment for 18 illegal reentry under Section 1326(d). 19 (App. 221). 20 In short, the district court found no Id. at 52 Daley thereafter entered a conditional plea to illegal 21 reentry, preserving his right to appeal the denial of the 22 motion to dismiss. 23 sentenced Daley to 30 months imprisonment. 24 district court issued its judgment, Daley timely appealed 25 the denial of the motion to dismiss the indictment. On May 3, 2011, the district court 26 27 8 After the 1 DISCUSSION 2 Daley s appeal turns on a single issue: whether the 3 district court properly determined that there was no 4 reasonable probability that Daley would have obtained relief 5 had he been notified of his removal proceeding. 6 analyzing this issue in light of United States v. Scott, 394 7 F.3d 111 (2d Cir. 2005), we review the relevant legal 8 standards applicable in these circumstances. Before 9 10 I 11 The question whether the district court properly denied 12 Daley s motion to dismiss the indictment is a mixed question 13 of fact and law, subject to de novo review. 14 v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). 15 review the district court s factual findings for clear 16 error. 17 2010). United States We United States v. Cerna, 603 F.3d 32, 39 (2d Cir. 18 Section 1326(d) places limits on an alien s ability to 19 collaterally attack a removal order when seeking to dismiss 20 an indictment for illegal reentry. 21 Section 1326(d)provides: 22 23 24 In relevant part, In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order . . . unless the alien 9 1 2 3 4 5 6 7 8 9 10 11 12 demonstrates that (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. 13 8 U.S.C. § 1326(d). 14 issue in this appeal is the third one: whether entry of the 15 removal order was fundamentally unfair. 16 found--and the Government does not dispute--that Daley 17 established the first two prongs (i.e., exhaustion of 18 administrative remedies and deprivation of opportunity for 19 judicial review). 20 The only prong of Section 1326(d) at The district court The alien bears the burden of showing that entry of the 21 removal order was fundamentally unfair. To show 22 fundamental unfairness [under Section 1326(d)(3)], a 23 defendant must show both a fundamental procedural error and 24 prejudice resulting from that error. 25 Copeland, 376 F.3d 61, 70 (2d Cir. 2004) (internal quotation 26 marks omitted). 27 prejudice an alien must show that his proceeding contained 28 errors so fundamental that he might have been deported in United States v. More specifically, in order to demonstrate 10 1 error. 2 adopted the same test for prejudice as used to decide claims 3 of ineffective assistance of counsel: [P]rejudice is shown 4 where there is a reasonable probability that, but for [the 5 error], the result of the proceeding would have been 6 different. 7 v. Washington, 466 U.S. 668, 694 (1984)). 8 relevant inquiry for the district court--and now for us--was 9 whether there was a reasonable probability that Daley would 10 have been granted cancellation of removal at his October 23, 11 1998 removal hearing. 12 Fernandez-Antonia, 278 F.3d at 159. We have Copeland, 376 F.3d at 73 (quoting Strickland In sum, the Cancellation of removal is a discretionary form of 13 relief available if an alien has been . . . lawfully 14 admitted for permanent residence for not less than 5 years, 15 has resided in the United States continuously for 7 years 16 after having been admitted, and has not been convicted of 17 any aggravated felony. 18 decision regarding cancellation of removal consists of 19 discretionary and factual determinations. 20 v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2007). 21 consider various positive and negative discretionary 22 factors when making this determination, including a 23 criminal record, which can weigh[] strongly against 8 U.S.C. § 1229b(a). 11 An IJ s Barco-Sandoval The IJ may 1 granting . . . discretionary relief. 2 450 F. App x 51, 53 (2d Cir. 2011); see also Rosario v. 3 Holder, 627 F.3d 58, 62 (2d Cir. 2010) (noting that 4 factfinding and factor-balancing . . . are at the core of 5 [the IJ s] discretion ). 6 Ledesma v. Holder, With these legal standards in mind, we turn to examine 7 whether the district court properly considered Daley s Hobbs 8 Act guilty plea (and the likely results of that guilty plea) 9 when determining whether there was a reasonable probability 10 that Daley would have obtained cancellation of removal. 11 12 II 13 Fundamental unfairness arises when a fundamental 14 procedural error is coupled with prejudice resulting from 15 that error. 16 concedes that Daley established procedural error, and that 17 on October 23, 1998, Daley was technically eligible for 18 cancellation of removal. 19 prejudice: a reasonable probability that but for the error, 20 he would not have been ordered removed. 21 found that Daley wouldn t have gotten relief 22 notwithstanding that the Hobbs act conviction to which he 23 had pled had not yet become final. Copeland, 376 F.3d at 70. The Government But Daley had to show a resulting 12 The district court Tr. of Mot. Hr g, at 43 1 (App. 212). 2 Marguerite Mills as to what would have happened had the IJ 3 been aware of Daley s Hobbs Act guilty plea, but also took a 4 broader view, concluding that regardless of whether Daley s 5 Hobbs Act guilty plea had yet become a final conviction, an 6 IJ considering all the relevant information as of the date 7 of the hearing would not have granted Daley discretionary 8 relief. 9 The district court credited the testimony of Id. at 39, 43-44 (App. 208, 212-13). On appeal, Daley relies on United States v. Scott, 394 10 F.3d 111 (2d Cir. 2005). 11 resident was ordered removed in 1996 after two criminal 12 convictions in New York. 13 removed in absentia and never applied for waiver of 14 deportation (the equivalent of cancellation of removal at 15 that time). 16 the removal proceedings was ineffective. 17 after the IJ issued the removal order but before he was 18 deported, Scott was convicted for possession of burglar s 19 tools. 20 he was arrested in New York for grand larceny (among other 21 things). 22 with illegal reentry after deportation under 8 U.S.C. § 1326 23 and sought to dismiss his indictment and collaterally Id. Id. In that case, a lawful permanent Id. at 113-14. He was ordered He later claimed that his counsel during Id. In 1998, After his deportation and subsequent reentry, Id. at 114. Following that arrest, he was charged 13 1 2 challenge his deportation pursuant to Section 1326(d). We ruled that the district court erred by considering 3 ex post data --specifically, Scott s 1998 conviction for 4 possession of burglar s tools--in determining whether, in 5 1996, Scott would have had a reasonable probability of 6 relief at his deportation proceeding. 7 Id. at 118. As we explained, Section 1326(d) s focus on the 8 entry of the [removal] order suggest a temporal limitation 9 on the district court s inquiry. Id. In other words, the 10 statute itself indicates that, contrary to the district 11 court s analysis, the only pertinent issue is whether entry 12 of the deportation order in 1996 prejudiced 13 Scott--regardless of Scott s potential deportability for 14 some later crimes. 15 are presently concerned about the process afforded to Scott 16 at his deportation proceeding in 1996, it would be anomalous 17 to consider criminal conduct after that date. 18 (emphasis added). 19 defendant-alien had a reasonable probability of not being 20 deported at his proceeding but for [the error], the district 21 court should reconstruct events as they existed at the time 22 of the disputed deportation proceeding, without considering 23 future occurrences. Id. (emphasis in original). [A]s we Id. at 119 In sum, in assessing whether the Id. 14 1 Here, the district court s ruling--that there was no 2 reasonable probability that Daley would have been granted 3 cancellation of removal--was based on circumstances as they 4 existed on October 23, 1998, the day of Daley s removal 5 proceeding. 6 13). Tr. of Mot. Hr g, at 39, 43-44 (App. 208, 212- It therefore did not run afoul of Scott. 7 In determining whether there was a reasonable 8 probability of relief, the district court could and did 9 consider Daley s entire criminal record as it existed at the 10 relevant time, including his Hobbs Act guilty plea. 11 Copeland, 376 F.3d at 74 (allowing review of entire criminal 12 record prior to removal proceeding); Scott, 394 F.3d at 13 118-19 (same). 14 that would have been available on the day of the removal 15 proceeding, including the fact that Daley had pled guilty to 16 Hobbs Act robbery, when making its determination as to 17 whether the IJ would have afforded Daley discretionary 18 cancellation of removal. 19 (App. 222). 20 occurred after the removal order was entered--Daley made his 21 Hobbs Act guilty plea before October 23, 1998, the date of 22 his removal proceedings. It considered all relevant information Tr. of Mot. Hr g, at 53 Unlike the criminal conduct in Scott--which 23 15 1 Two considerations support this conclusion. First, the 2 district court s reasonable probability analysis, by its 3 nature, requires some degree of speculation. 4 explained that the courts must necessarily play the role of 5 prognosticator, and divine whether, had the error not 6 occurred, the defendant would likely have obtained 7 immigration relief. 8 Cir. 2004). 9 determination was speculative or uncertain therefore gains 10 11 We have Edwards v. INS, 393 F.3d 299, 311 (2d Daley s critique that the district court s no traction. In addition, the IJ s underlying determination whether 12 to grant cancellation of removal is also highly 13 discretionary. 14 Cancellation of removal is essentially a matter of 15 administrative grace. 16 (2d Cir. 2010); see Jay v. Boyd, 351 U.S. 345, 354 (1956). 17 Here, the district court analyzed circumstances as they 18 existed on October 23, 1998 and concluded that there was no 19 reasonable probability that the IJ would have exercised his 20 discretion in Daley s favor. 21 reason to disturb that determination. 22 23 See Barco-Sandoval, 516 F.3d at 36. Argueta v. Holder, 617 F.3d 109, 113 Daley presents no compelling While an extreme reading of Scott could suggest that the district court should not consider anything that 16 1 occurred or could have occurred after the day of the removal 2 order, the upshot of Scott is to prohibit consideration of 3 criminal conduct occurring after entry of the removal order. 4 Scott, 394 F.3d at 119 (noting that it would be anomalous 5 to consider criminal conduct after the relevant date). 6 achieve Daley s desired result, one must read the line from 7 Scott suggesting that a district court judge should 8 reconstruct events as they existed at the time of the 9 disputed deportation proceeding, without considering future To 10 occurrences to mean that the judge cannot consider the 11 likely effects of already completed conduct. 12 would be inconsistent with the district court s inherently 13 speculative role in carrying out the reasonable 14 probability analysis and with the IJ s broad discretion in 15 granting relief. Such a reading 16 17 18 CONCLUSION For the foregoing reasons, we affirm the judgment. 17
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
