Collateral Damage

United States v. Cerna, No. 09-1170-cr (2d Cir. April 27, 2010) (Katzmann, Hall, CJJ, Rakoff, DJ)

Against the backdrop of the circuit’s ongoing concern over the “exceptionally poor quality of representation often provided by attorneys retained by aliens as they attempt to negotiate the complexities of our immigration law,” here, the circuit reversed the district court’s denial of the defendant’s collateral challenge to the legality of his deportation.

Jose Cerna came to the United States from El Salvador when he was ten. He became a lawful permanent resident but, as a teenager, had several brushes with the law – two drug sale convictions when he was sixteen, a gun possession charge two years later, and another drug sale when he was twenty-one. While serving this last sentence, deportation proceedings were commenced against him.

After a hearing, an immigration judge found Cerna deportable, but also found him to be eligible for 212(c) relief. Cerna was represented by counsel and the attorney had forty-five days to file the application but never did so. After the 212(c) deadline passed, the judge issued a deportation order. That order, along with an advice of the right to appeal to the BIA was sent to Cerna’s counsel with a “cc” to Cerna at a New York State correctional facility. Cerna’s attorney took no further action on the case and about one year later Cerna was deported to El Salvador.

Cerna was found back in the United Sates in late 2000, charged with illegal reentry in 2004, and arrested on that charge in 2007. He then moved to dismiss under 8 U.S.C. § 1326(d), which authorizes a collateral challenge to the deportation underlying an illegal reentry charge.

This section requires that the defendant (1) exhaust his administrative remedies in connection with the deportation, (2) establish that the proceedings improperly deprived him of the opportunity for judicial review and that (3) the deportation was fundamentally unfair. As to the first two prongs, Cerna argued that his attorney’s failure either to file the 212(c) application or to tell him that he had not was ineffective assistance of counsel that both excused his failure to exhaust and deprived him of judicial review. Cerna’s motion included a declaration explaining that he had no reason to believe that his attorney would not apply for 212(c) relief, did not learn that the attorney had not done so until he was deported, and never received the written notice of the right to appeal.

Despite these assertions, the district court denied the motion. It held that Cerna “knowingly and intelligently waived his right to any administrative remedies” by taking no action to contest the deportation during the period between the order and his actual removal from the country. The court also held that the deportation was not fundamentally unfair because Cerna’s criminal record made it unlikely that he would have been granted 212(c) relief in any event.

On appeal, the circuit first concluded that the district court’s finding that Cerna knowingly and voluntarily waived his administrative remedies was clear error. The basic problem was the district court’s failure to resolve the factual contradiction before it: the notice of the right to appeal the deportation was apparently “cc”’d to Cerna, but he asserted that he never received it. Perhaps the court discredited the assertion, but it “offered no explicit statement to that effect and no explanation of why it did not find Cerna to be credible.” Nor could the mere passage of time serve as the basis for a finding of a valid waiver since, during this period, Cerna believed that his attorney was fighting the deportation. “We decline to hold that an incarcerated alien whose lawyer has stated that he would file an application for relief from deportation has an obligation to check up on the lawyer to confirm that the application has been filed or risk waiving his right to appeal.” The court thus agreed with Cerna that his counsel’s ineffectiveness excused his failure to exhaust his administrative remedies.

As for the judicial review prong, the court merely applied existing precedent holding that ineffective assistance of immigration counsel can result in the deprivation of judicial review of a deportation.

Finally, the court agreed that the district court’s conclusion that Cerna was unlikely to have received 212(c) relief was unsound. The question was “whether Cerna had a reasonable probability of receiving” it and the circuit’s prior decisions have found that probability in cases no worse than Cerna’s.