     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
27                            Judge, and GLEESON, District Judge.*
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.




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