11-2987-cr

United States v. Daley

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2012

6

7

8 (Argued: September 6, 2012 Decided: December 7,2012)

9

10 Docket No. 11-2987

11

12 - - - - - - - - - - - - - - - - - - - -x

13

14 UNITED STATES OF AMERICA,

15

16 Appellee,

17

18 - v.-

19

20 COURTNEY DALEY,

21

22 Defendant-Appellant.

23

24 - - - - - - - - - - - - - - - - - - - -x

25

26 Before: JACOBS, Chief Judge, CARNEY, Circuit

Judge, and GLEESON, District Judge.* 27

28

29 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. Daley

33 challenges the denial of his motion to dismiss the

 * The Honorable John Gleeson, United States District

Judge for the Eastern District of New York, sitting by

designation.
1 indictment. The district court ruled that the entry of the

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 YUANCHUNG LEE, Federal Defenders

10 of New York, Inc., New York, NY,

11 for Appellant Courtney Daley.

12

13 TIANA A. DEMAS (David C. James,

14 on the brief), Assistant United

15 States Attorneys, for Loretta E.

16 Lynch, United States Attorney

17 for the Eastern District of New

18 York, Brooklyn, NY, for Appellee

19 United States of America.

20

21 DENNIS JACOBS, Chief Judge:

22

23 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. Daley

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. The United States

2
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. He moved to dismiss the indictment

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. In order to show fundamental

22 unfairness, however, Daley had to show that, but for the

3
1 Government’s error, there was a reasonable probability that

2 he would have obtained relief from the Immigration Judge

3 (“IJ”). The district court concluded that there was no such

4 probability. Daley ultimately entered a conditional guilty

5 plea that preserved his right to appeal the denial of his

6 motion to dismiss the indictment. Daley was sentenced to 30

7 months’ imprisonment and timely appealed. For the reasons

8 discussed below, we affirm the judgment. 

9

10 BACKGROUND

11 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. In 1995, Daley was indicted in New York

14 for possession of a loaded firearm and bail jumping. After

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 At Daley’s initial appearance before the IJ in February

21 1998, he was granted additional time to find a lawyer. A

22 preliminary hearing was eventually scheduled for September

4
1 18, 1998. In May 1998, however, Daley was arrested and

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 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. At Daley’s request,

9 his girlfriend notified the INS that he was in custody at

10 the MDC and submitted a change-of-address form on his

11 behalf. It was received by INS and listed Daley’s full

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 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. At the hearing, INS suggested that Daley might be

19 incarcerated, and the IJ adjourned to permit INS counsel to

20 determine Daley’s whereabouts. Daley did not appear at the

21 subsequent hearing on October 23, 1998, and INS wrongly

22

5
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. Within a year, Daley returned to the United

7 States. 

8 In February 2010, Daley was again arrested--this time

9 for allegedly threatening his then-estranged wife in

10 Brooklyn. As a result of that arrest, immigration

11 authorities learned of Daley’s unlawful presence in the

12 United States. A grand jury indicted Daley in the Eastern

13 District of New York for illegal reentry after deportation,

14 in violation of 8 U.S.C. §§ 1326(a), (b)(2).

15 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). Daley argued, pursuant to 8 U.S.C. § 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 At a November 2010 evidentiary hearing on Daley’s

23 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 removed. 

11 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. Id. at 119. 

16 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. The district

20 court carefully distinguished Scott: “I’m not looking at

21 future occurrences. I’m looking at what had occurred at the

22 time of the hearing. . . . And it’s what distinguishes

23 Scott. 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.” Tr. of Mot. Hr’g, at 39-40 (Nov. 22, 2010)

3 (App. 208-09). The district court explained further:

4 [T]he temporal limitation of Scott deals with a crime

5 that’s committed after that hearing. If you wanted to

6 consider[] what happened, all the relevant information

7 as of the date of the hearing and the relevant

8 information includes his guilty plea for which he was

9 ultimately sentenced, and then the question becomes he

10 wouldn’t have gotten relief. At most, they would have

11 put off the hearing but . . . he probably wouldn’t have

12 gotten relief based on the admission that he made that

13 he committed [Hobbs Act] extortion . . . .

14 Id. at 43 (App. 212). In short, the district court found no

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). Id. at 52

19 (App. 221).

20 Daley thereafter entered a conditional plea to illegal

21 reentry, preserving his right to appeal the denial of the

22 motion to dismiss. On May 3, 2011, the district court

23 sentenced Daley to 30 months’ imprisonment. After the

24 district court issued its judgment, Daley timely appealed

25 the denial of the motion to dismiss the indictment.

26

27

8
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. Before

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.

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. United States

14 v. Fernandez-Antonia, 278 F.3d 150, 156 (2d Cir. 2002). We

15 review the district court’s factual findings for clear

16 error. United States v. Cerna, 603 F.3d 32, 39 (2d Cir.

17 2010).

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. In relevant part,

21 Section 1326(d)provides:

22 In a criminal proceeding under this section, an

23 alien may not challenge the validity of the

24 deportation order . . . unless the alien

9
1 demonstrates that–

2

3 (1) the alien exhausted any administrative

4 remedies that may have been available to seek

5 relief against the order;

6

7 (2) the deportation proceedings at which the

8 order was issued improperly deprived the alien

9 of the opportunity for judicial review; and

10

11 (3) the entry of the order was fundamentally

12 unfair.

13 8 U.S.C. § 1326(d). The only prong of Section 1326(d) at

14 issue in this appeal is the third one: whether entry of the

15 removal order was fundamentally unfair. The district court

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 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.” United States v.

25 Copeland, 376 F.3d 61, 70 (2d Cir. 2004) (internal quotation

26 marks omitted). More specifically, “in order to demonstrate

27 prejudice an alien must show that his proceeding contained

28 errors so fundamental that he might have been deported in

10
1 error.” Fernandez-Antonia, 278 F.3d at 159. We have

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.’” Copeland, 376 F.3d at 73 (quoting Strickland

7 v. Washington, 466 U.S. 668, 694 (1984)). In sum, the

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 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.” 8 U.S.C. § 1229b(a). An IJ’s

18 decision regarding cancellation of removal consists of

19 “discretionary and factual determinations.” Barco-Sandoval

20 v. Gonzales, 516 F.3d 35, 36 (2d Cir. 2007). The IJ may

21 consider “various positive and negative discretionary

22 factors” when making this determination, including a

23 criminal record, which can “weigh[] strongly against

11
1 granting . . . discretionary relief.” Ledesma v. Holder,

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 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.” Copeland, 376 F.3d at 70. The Government

16 concedes that Daley established procedural error, and that

17 on October 23, 1998, Daley was technically eligible for

18 cancellation of removal. But Daley had to show a resulting

19 prejudice: a reasonable probability that but for the error,

20 he would not have been ordered removed. The district court

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. Tr. of Mot. Hr’g, at 43

12
1 (App. 212). The district court credited the testimony of

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. Id. at 39, 43-44 (App. 208, 212-13).

9 On appeal, Daley relies on United States v. Scott, 394

10 F.3d 111 (2d Cir. 2005). In that case, a lawful permanent

11 resident was ordered removed in 1996 after two criminal

12 convictions in New York. Id. at 113-14. He was ordered

13 removed in absentia and never applied for waiver of

14 deportation (the equivalent of cancellation of removal at

15 that time). Id. He later claimed that his counsel during

16 the removal proceedings was ineffective. Id. In 1998,

17 after the IJ issued the removal order but before he was

18 deported, Scott was convicted for possession of burglar’s

19 tools. Id. After his deportation and subsequent reentry,

20 he was arrested in New York for grand larceny (among other

21 things). Id. at 114. Following that arrest, he was charged

22 with illegal reentry after deportation under 8 U.S.C. § 1326

23 and sought to dismiss his indictment and collaterally

13
1 challenge his deportation pursuant to Section 1326(d).

2 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. Id. at 118. 

7 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.” Id. (emphasis in original). “[A]s we

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.” Id. at 119

18 (emphasis added). In sum, “in assessing whether the

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.

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. Tr. of Mot. Hr’g, at 39, 43-44 (App. 208, 212-

6 13). 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). It considered “all relevant information”

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. Tr. of Mot. Hr’g, at 53

19 (App. 222). Unlike the criminal conduct in Scott--which

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.

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. We have

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.” Edwards v. INS, 393 F.3d 299, 311 (2d

8 Cir. 2004). Daley’s critique that the district court’s

9 determination was speculative or uncertain therefore gains

10 no traction. 

11 In addition, the IJ’s underlying determination whether

12 to grant cancellation of removal is also highly

13 discretionary. See Barco-Sandoval, 516 F.3d at 36. 

14 Cancellation of removal is essentially a matter of

15 administrative grace. Argueta v. Holder, 617 F.3d 109, 113

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. Daley presents no compelling

21 reason to disturb that determination.

22 While an extreme reading of Scott could suggest that

23 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). To

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

10 occurrences” to mean that the judge cannot consider the

11 likely effects of already completed conduct. Such a reading

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.

16

17 CONCLUSION

18 For the foregoing reasons, we affirm the judgment.

17