United States v. Daley

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
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13
UNITED STATES OF AMERICA, 14
15
Appellee, 16
17
- v.- 18
19
COURTNEY DALEY, 20
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Defendant-Appellant. 22
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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.

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indictment. The district court ruled that the entry of the 1
removal order against Daley in absentia 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
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 Appellant Courtney Daley. 11
12
TIANA A. DEMAS (David C. James, 13
on the brief), Assistant United 14
States Attorneys, for Loretta 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
2

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District 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
3

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Government’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
4

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18, 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
5

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informed 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
6

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Assistant 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
7

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the 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 Scott deals 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
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8

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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 novo review. 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
9

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demonstrates 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
10

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error.” 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
11

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granting . . . discretionary relief.” Ledesma v. Holder, 1
450 F. App’x 51, 53 (2d Cir. 2011); see also Rosario 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

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(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 absentia and 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
13

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challenge his deportation pursuant to Section 1326(d). 1
We ruled that the district court erred by considering 2
“ex post data”--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 conduct after 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
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Here, 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
15

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Two 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. See Barco-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); see Jay 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 Scott could suggest that 22
the district court should not consider anything that 23
16

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occurred or could have occurred after the day of the removal 1
order, the upshot of Scott is to prohibit consideration of 2
criminal conduct occurring 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
Scott suggesting 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
17

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