11-2987-cr United States v. Daley **UNITED STATES COURT OF APPEALS** 1 2 **FOR THE SECOND CIRCUIT** 3 4 August Term, 2012 5 6 7 (Argued: September 6, 2012 Decided: December 7,2012) 8 9 Docket No. 11-2987 10 11 - - - - - - - - - - - - - - - - - - - -x 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 17 - v.- 18 19 COURTNEY DALEY, 20 21 Defendant-Appellant

. 22 23 - - - - - - - - - - - - - - - - - - - -x 24 25 Before: JACOBS, Chief Judge , CARNEY, Circuit 26 Judge , and GLEESON, District Judge

. * 27 28 Defendant Courtney Daley appeals from the judgment of 29 the United States District Court for the Eastern District of 30 New York (Korman, J. ), convicting him of illegal reentry 31 under 8 U.S.C. § 1326, following a conditional plea. Daley 32 challenges the denial of his motion to dismiss the 33

*The Honorable John Gleeson, United States District Judge for the Eastern District of New York, sitting by designation.indictment. The district court ruled that the entry of the 1 removal order against Daley in absentiawas not 2 fundamentally unfair because there was no reasonable 3 probability that Daley would have obtained relief had he 4 received notice of the removal proceeding and been present. 5 Because the district court properly considered Daley’s 6 completed criminal conduct in making this discretionary 7 determination, we affirm the judgment. 8 YUANCHUNG LEE, Federal Defenders 9 of New York, Inc., New York, NY, 10 for AppellantCourtney Daley. 11 12 TIANA A. DEMAS (David C. James, 13 on the brief ), Assistant United 14 States Attorneys, forLoretta E. 15 Lynch, United States Attorney 16 for the Eastern District of New 17 York, Brooklyn, NY, for Appellee 18 United States of America. 19 20 DENNIS JACOBS, Chief Judge : 21 22 Defendant Courtney Daley appeals from the judgment of 23 the United States District Court for the Eastern District of 24 New York (Korman, J. ), convicting him of illegal reentry 25 under 8 U.S.C. § 1326, following a conditional plea. Daley 26 moved to dismiss the indictment on the ground that he was 27 given no notice of the 1998 removal proceedings after which 28 a removal order was entered in absentia . The United States 29

2District Court for the Eastern District of New York (Korman, 1
J. ) ruled that the entry of the removal order was not 2 fundamentally unfair because there was no reasonable 3 probability that Daley would have obtained relief had he 4 received notice of the removal proceeding and been present. 5 While his 1998 immigration proceedings were pending, 6 Daley was arrested for robbery under the Hobbs Act and 7 detained at the Metropolitan Detention Center in Brooklyn, 8 New York. Although he notified the Immigration and 9 Naturalization Service (“INS”) of his new address, INS did 10 not properly process the address change and failed to notify 11 Daley of his ongoing immigration proceedings, so that he was 12 ordered removed in absentia

. 13 Daley was removed to Jamaica, his country of origin, 14 but he subsequently returned to the United States. He was 15 arrested again--this time following a domestic altercation 16 with his estranged wife--and indicted for illegal reentry 17 under 8 U.S.C. § 1326. He moved to dismiss the indictment 18 pursuant to 8 U.S.C. § 1326(d), on the ground that his 1998 19 removal order was fundamentally unfair because he was 20 removed in absentia . In order to show fundamental 21 unfairness, however, Daley had to show that, but for the 22

3Government’s error, there was a reasonable probability that 1 he would have obtained relief from the Immigration Judge 2 (“IJ”). The district court concluded that there was no such 3 probability. Daley ultimately entered a conditional guilty 4 plea that preserved his right to appeal the denial of his 5 motion to dismiss the indictment. Daley was sentenced to 30 6 months’ imprisonment and timely appealed. For the reasons 7 discussed below, we affirm the judgment. 8 9
**BACKGROUND** 10 Daley was born in Kingston, Jamaica, in 1968, and came 11 to the United States at the age of fifteen as a lawful 12 permanent resident. In 1995, Daley was indicted in New York 13 for possession of a loaded firearm and bail jumping. After 14 he served a one-year sentence, INS initiated removal 15 proceedings on January 14, 1998, pursuant to Section 16 237(a)(2)© of the Immigration and Nationality Act (which 17 allows removal of any alien convicted of certain firearm 18 offenses). 19 At Daley’s initial appearance before the IJ in February 20 1998, he was granted additional time to find a lawyer. A 21 preliminary hearing was eventually scheduled for September 22

418, 1998. In May 1998, however, Daley was arrested and 1 arraigned in the Eastern District of New York on federal 2 robbery charges under the Hobbs Act (18 U.S.C. § 1951). 3 Daley pled guilty on August 18, 1998, but that conviction 4 did not become final until March 1999. 5 During the summer of 1998--because of his Hobbs Act 6 arrest--Daley was held without bail at the Metropolitan 7 Detention Center (“MDC”) in Brooklyn. At Daley’s request, 8 his girlfriend notified the INS that he was in custody at 9 the MDC and submitted a change-of-address form on his 10 behalf. It was received by INS and listed Daley’s full 11 name, alien registration number, and Bureau of Prisons 12 number, clearly indicating that Daley was now residing at 13 the MDC in Brooklyn. 14 INS somehow misplaced or mishandled this form. 15 Presumably because he was not informed of the date, Daley 16 failed to appear for his September 1998 hearing before the 17 IJ. At the hearing, INS suggested that Daley might be 18 incarcerated, and the IJ adjourned to permit INS counsel to 19 determine Daley’s whereabouts. Daley did not appear at the 20 subsequent hearing on October 23, 1998, and INS wrongly 21 22

5informed the IJ that Daley was not in federal or state 1 custody. The IJ ordered Daley removed in absentia

. 2 Daley was subsequently sentenced to 37 months’ 3 imprisonment for his Hobbs Act conviction, and upon 4 completing that sentence in January 2001, he was deported to 5 Jamaica. Within a year, Daley returned to the United 6
States. 7 In February 2010, Daley was again arrested--this time 8 for allegedly threatening his then-estranged wife in 9 Brooklyn. As a result of that arrest, immigration 10 authorities learned of Daley’s unlawful presence in the 11 United States. A grand jury indicted Daley in the Eastern 12 District of New York for illegal reentry after deportation, 13 in violation of 8 U.S.C. §§ 1326(a), (b)(2). 14 Daley moved to dismiss the indictment pursuant to Rule 15 12 of the Federal Rules of Criminal Procedure and 8 U.S.C. 16 § 1326(d). Daley argued, pursuant to 8 U.S.C. § 1326(d), 17 that it would be fundamentally unfair to rely on the 1998 18 removal order to establish an element of the illegal reentry 19 offense because the 1998 removal order was entered in 20 violation of his due process rights. 21 At a November 2010 evidentiary hearing on Daley’s 22 motion to dismiss the indictment, Marguerite Mills, 23

6Assistant Chief Counsel for U.S. Immigration and Customs 1 Enforcement, testified as follows concerning INS policy in 2 place at the time: if the IJ had been notified of Daley’s 3 Hobbs Act guilty plea on the day of Daley’s removal hearing 4 (October 23, 1998), the IJ would have administratively 5 closed the case until the Hobbs Act conviction became final; 6 and after the conviction became final, the IJ could have 7 reopened the case, denied Daley any discretionary relief 8 (including cancellation of removal), and ordered him 9 removed. 10 In response, Daley relied almost exclusively on United 11
States v. Scott , 394 F.3d 111 (2d Cir. 2005), arguing that 12 the district court should not consider “future occurrences” 13 when determining whether entry of the removal order was 14 fundamentally unfair. Id.at 119. 15 The district court denied Daley’s motion from the 16 bench, on the ground that the failure of notice did not 17 prejudice Daley because he would not have been granted 18 cancellation of removal on October 23, 1998. The district 19 court carefully distinguished Scott : “I’m not looking at 20 future occurrences. I’m looking at what had occurred at the 21 time of the hearing. . . . And it’s what distinguishes 22
Scott . In other words . . . if I am going to look at all of 23

7the relevant factors at the time of the hearing, then you 1 lose.” Tr. of Mot. Hr’g, at 39-40 (Nov. 22, 2010) 2 (App. 208-09). The district court explained further: 3 [T]he temporal limitation of Scottdeals with a crime 4 that’s committed after that hearing. If you wanted to 5 consider[] what happened, all the relevant information 6 as of the date of the hearing and the relevant 7 information includes his guilty plea for which he was 8 ultimately sentenced, and then the question becomes he 9 wouldn’t have gotten relief. At most, they would have 10 put off the hearing but . . . he probably wouldn’t have 11 gotten relief based on the admission that he made that 12 he committed [Hobbs Act] extortion . . . . 13 Id.at 43 (App. 212). In short, the district court found no 14 reasonable probability that Daley would have been granted 15 relief had he been present at the 1998 hearing, thus he was 16 not prejudiced, and could not dismiss his indictment for 17 illegal reentry under Section 1326(d). Id.at 52 18 (App. 221). 19 Daley thereafter entered a conditional plea to illegal 20 reentry, preserving his right to appeal the denial of the 21 motion to dismiss. On May 3, 2011, the district court 22 sentenced Daley to 30 months’ imprisonment. After the 23 district court issued its judgment, Daley timely appealed 24 the denial of the motion to dismiss the indictment. 25 26 27

8**DISCUSSION** 1 Daley’s appeal turns on a single issue: whether the 2 district court properly determined that there was no 3 reasonable probability that Daley would have obtained relief 4 had he been notified of his removal proceeding. Before 5 analyzing this issue in light of United States v. Scott , 394 6 F.3d 111 (2d Cir. 2005), we review the relevant legal 7 standards applicable in these circumstances. 8 9

**I** 10 The question whether the district court properly denied 11 Daley’s motion to dismiss the indictment is a mixed question 12 of fact and law, subject to de novoreview. United States 13 v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). We 14 review the district court’s factual findings for clear 15 error. United States v. Cerna, 603 F.3d 32, 39 (2d Cir. 16 2010). 17 Section 1326(d) places limits on an alien’s ability to 18 collaterally attack a removal order when seeking to dismiss 19 an indictment for illegal reentry. In relevant part, 20 Section 1326(d)provides: 21 In a criminal proceeding under this section, an 22 alien may not challenge the validity of the 23 deportation order . . . unless the alien 24

9demonstrates that– 1 2 (1) the alien exhausted any administrative 3 remedies that may have been available to seek 4 relief against the order; 5 6 (2) the deportation proceedings at which the 7 order was issued improperly deprived the alien 8 of the opportunity for judicial review; and 9 10 (3) the entry of the order was fundamentally 11 unfair. 12 8 U.S.C. § 1326(d). The only prong of Section 1326(d)at 13 issue in this appeal is the third one: whether entry of the 14 removal order was fundamentally unfair. The district court 15 found--and the Government does not dispute--that Daley 16 established the first two prongs (i.e. , exhaustion of 17 administrative remedies and deprivation of opportunity for 18 judicial review). 19 The alien bears the burden of showing that entry of the 20 removal order was fundamentally unfair. “To show 21 fundamental unfairness [under Section 1326(d)(3)], a 22 defendant must show both a fundamental procedural error and 23 prejudice resulting from that error.” United States v. 24 Copeland, 376 F.3d 61, 70 (2d Cir. 2004) (internal quotation 25 marks omitted). More specifically, “in order to demonstrate 26 prejudice an alien must show that his proceeding contained 27 errors so fundamental that he might have been deported in 28

10error.” Fernandez-Antonia, 278 F.3d at 159. We have 1 adopted the same test for prejudice as used to decide claims 2 of ineffective assistance of counsel: “[P]rejudice is shown 3 where ‘there is a reasonable probability that, but for [the 4 error], the result of the proceeding would have been 5 different.’” Copeland, 376 F.3d at 73 (quoting Strickland 6 v. Washington, 466 U.S. 668, 694 (1984)). In sum, the 7 relevant inquiry for the district court--and now for us--was 8 whether there was a reasonable probability that Daley would 9 have been granted cancellation of removal at his October 23, 10 1998 removal hearing. 11 Cancellation of removal is a discretionary form of 12 relief available if an alien “has been . . . lawfully 13 admitted for permanent residence for not less than 5 years,” 14 “has resided in the United States continuously for 7 years 15 after having been admitted,” and “has not been convicted of 16 any aggravated felony.” 8 U.S.C. § 1229b(a). An IJ’s 17 decision regarding cancellation of removal consists of 18 “discretionary and factual determinations.” Barco-Sandoval 19 v. Gonzales , 516 F.3d 35, 36 (2d Cir. 2007). The IJ may 20 consider “various positive and negative discretionary 21 factors” when making this determination, including a 22 criminal record, which can “weigh[] strongly against 23

11granting . . . discretionary relief.” Ledesma v. Holder, 1 450 F. App’x 51, 53 (2d Cir. 2011); see alsoRosario v. 2 Holder, 627 F.3d 58, 62 (2d Cir. 2010) (noting that 3 “factfinding and factor-balancing . . . are at the core of 4 [the IJ’s] discretion”). 5 With these legal standards in mind, we turn to examine 6 whether the district court properly considered Daley’s Hobbs 7 Act guilty plea (and the likely results of that guilty plea) 8 when determining whether there was a reasonable probability 9 that Daley would have obtained cancellation of removal. 10 11

**II** 12 Fundamental unfairness arises when a “fundamental 13 procedural error” is coupled with “prejudice resulting from 14 that error.” Copeland, 376 F.3d at 70. The Government 15 concedes that Daley established procedural error, and that 16 on October 23, 1998, Daley was technically eligible for 17 cancellation of removal. But Daley had to show a resulting 18 prejudice: a reasonable probability that but for the error, 19 he would not have been ordered removed. The district court 20 found that Daley “wouldn’t have gotten relief” 21 notwithstanding that the Hobbs act conviction to which he 22 had pled had not yet become final. Tr. of Mot. Hr’g, at 43 23

12(App. 212). The district court credited the testimony of 1 Marguerite Mills as to what would have happened had the IJ 2 been aware of Daley’s Hobbs Act guilty plea, but also took a 3 broader view, concluding that regardless of whether Daley’s 4 Hobbs Act guilty plea had yet become a final conviction, an 5 IJ considering “all the relevant information as of the date 6 of the hearing” would not have granted Daley discretionary 7 relief. Id.at 39, 43-44 (App. 208, 212-13). 8 On appeal, Daley relies on United States v. Scott , 394 9 F.3d 111 (2d Cir. 2005). In that case, a lawful permanent 10 resident was ordered removed in 1996 after two criminal 11 convictions in New York. Id.at 113-14. He was ordered 12 removed in absentiaand never applied for waiver of 13 deportation (the equivalent of cancellation of removal at 14 that time). Id.He later claimed that his counsel during 15 the removal proceedings was ineffective. Id.In 1998, 16 after the IJ issued the removal order but before he was 17 deported, Scott was convicted for possession of burglar’s 18 tools. Id.After his deportation and subsequent reentry, 19 he was arrested in New York for grand larceny (among other 20 things). Id.at 114. Following that arrest, he was charged 21 with illegal reentry after deportation under 8 U.S.C. § 1326 22 and sought to dismiss his indictment and collaterally 23

13challenge his deportation pursuant to Section 1326(d). 1 We ruled that the district court erred by considering 2 “ex postdata”--specifically, Scott’s 1998 conviction for 3 possession of burglar’s tools--in determining whether, in 4 1996, Scott would have had a reasonable probability of 5 relief at his deportation proceeding. Id.at 118. 6 As we explained, Section 1326(d)’s “focus on the 7 ‘entry’ of the [removal] order suggest a temporal limitation 8 on the district court’s inquiry.” Id.“In other words, the 9 statute itself indicates that, contrary to the district 10 court’s analysis, the only pertinent issue is whether entry 11 of the deportation order in 1996 prejudiced 12 Scott--regardless of Scott’s potential deportability for 13 some later crimes.” Id.(emphasis in original). “[A]s we 14 are presently concerned about the process afforded to Scott 15 at his deportation proceeding in 1996, it would be anomalous 16 to consider criminal conductafter that date.” Id.at 119 17 (emphasis added). In sum, “in assessing whether the 18 defendant-alien had a reasonable probability of not being 19 deported at his proceeding but for [the error], the district 20 court should reconstruct events as they existed at the time 21 of the disputed deportation proceeding, without considering 22 future occurrences.” Id. 23

14Here, the district court’s ruling--that there was no 1 reasonable probability that Daley would have been granted 2 cancellation of removal--was based on circumstances as they 3 existed on October 23, 1998, the day of Daley’s removal 4 proceeding. Tr. of Mot. Hr’g, at 39, 43-44 (App. 208, 212- 5 13).It therefore did not run afoul of Scott

. 6 In determining whether there was a reasonable 7 probability of relief, the district court could and did 8 consider Daley’s entire criminal record as it existed at the 9 relevant time, including his Hobbs Act guilty plea. 10 Copeland, 376 F.3d at 74 (allowing review of entire criminal 11 record prior to removal proceeding); Scott , 394 F.3d at 12 118-19 (same). It considered “all relevant information” 13 that would have been available on the day of the removal 14 proceeding, including the fact that Daley had pled guilty to 15 Hobbs Act robbery, when making its determination as to 16 whether the IJ would have afforded Daley discretionary 17 cancellation of removal. Tr. of Mot. Hr’g, at 53 18 (App. 222). Unlike the criminal conduct in Scott--which 19 occurred after the removal order was entered--Daley made his 20 Hobbs Act guilty plea before October 23, 1998, the date of 21 his removal proceedings. 22 23

15Two considerations support this conclusion. First, the 1 district court’s “reasonable probability” analysis, by its 2 nature, requires some degree of speculation. We have 3 explained that “the courts must necessarily play the role of 4 prognosticator, and divine whether, had the error not 5 occurred, the defendant would likely have obtained 6 immigration relief.” Edwards v. INS , 393 F.3d 299, 311 (2d 7 Cir. 2004). Daley’s critique that the district court’s 8 determination was speculative or uncertain therefore gains 9 no traction. 10 In addition, the IJ’s underlying determination whether 11 to grant cancellation of removal is also highly 12 discretionary. SeeBarco-Sandoval , 516 F.3d at 36. 13 Cancellation of removal is essentially a matter of 14 administrative grace. Argueta v. Holder , 617 F.3d 109, 113 15 (2d Cir. 2010); seeJay v. Boyd, 351 U.S. 345, 354 (1956). 16 Here, the district court analyzed circumstances as they 17 existed on October 23, 1998 and concluded that there was no 18 reasonable probability that the IJ would have exercised his 19 discretion in Daley’s favor. Daley presents no compelling 20 reason to disturb that determination. 21 While an extreme reading of Scottcould suggest that 22 the district court should not consider anything that 23

16occurred or could have occurred after the day of the removal 1 order, the upshot of Scottis to prohibit consideration of 2 criminal conductoccurring after entry of the removal order. 3
Scott , 394 F.3d at 119 (noting that “it would be anomalous 4 to consider criminal conduct after” the relevant date). To 5 achieve Daley’s desired result, one must read the line from 6
Scottsuggesting that a district court judge should 7 “reconstruct events as they existed at the time of the 8 disputed deportation proceeding, without considering future 9 occurrences” to mean that the judge cannot consider the 10 likely effects of already completed conduct. Such a reading 11 would be inconsistent with the district court’s inherently 12 speculative role in carrying out the “reasonable 13 probability” analysis and with the IJ’s broad discretion in 14 granting relief. 15 16
**CONCLUSION** 17 For the foregoing reasons, we affirm the judgment. 18

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