UNITED STATES DISTRICT COURT
		
________________DISTRICT OF TEXAS

________________ DIVISION

UNITED STATES OF AMERICA	                 §
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V.	                                                                 §		NO.
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__________________________	                 §	

DEFENDANT’S MOTION TO DISMISS

TO THE HONORABLE ________________, UNITED STATES DISTRICT JUDGE FOR THE ______________ DISTRICT OF TEXAS:

	NOW COMES Defendant, _______________, by attorney, and respectfully moves this Honorable Court to dismiss the indictment against him based on the Supreme Court’s decision in INS v. St Cyr, 533 U.S. 289 (2001).  In support of his motion, _________ would show this Honorable Court the following facts and circumstances.
	I. 	Statement of Relevant Facts
	_____________________ is charged by indictment with illegal re-entry into the United States after deportation in violation of Title 8 U.S.C.§ 1326(a).  In________________, _____________________ pleaded guilty to  the offense of indecency with a child, in Bexar County, Texas.  At the time he entered his guilty plea, _____________________ had resided in the United States for eleven years and had obtained permanent residence status.  Under the law in effect when _____________________ entered his guilty plea, he was entitled, despite his conviction, to apply for a relief from deportation pursuant to section 212(c) of the Immigration and Naturalization Act (INA). See 8 U.S.C. § 1182(c).  _____________________ entered a guilty plea and was sentenced to ten years’ probation.  
	On April 24, 1996, the Antiterrorism and Effective Death Penalty Act (AEDPA) was enacted.  AEDPA amended the Immigration and Naturalization Act and expanded the list of deportable crimes.  On September 30, 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was enacted.  IIRIRA also expanded the category of crimes considered to be “aggravated felonies.”  In addition, section 304 of IIRIRA repealed the provision in section 212(c) of the INA granting the Attorney General broad discretion to grant relief from deportation (section 212(c) relief).  After the amendment, no one convicted of an “aggravated felony” offense  was eligible for section 212(c) relief.
	After the amendments, the INS took the position that _____________________’s pre-IIRIRA indecency with a child conviction made him both deportable and ineligible to seek section 212(c) relief.1  In 1998, the INS commenced removal proceedings against _____________________.  The immigration judge determined that _____________________ was removable and that he was ineligible for section 212(c) relief.  See App. A.2  _____________________ appealed the immigration judge’s ruling.  The Board of Immigration Appeals (BIA) ruled against _____________________ and dismissed his appeal.  See App. B at 2.3  In 1999, _____________________ was formally removed from the country.  

	_____________________ is charged by indictment with illegal re-entry into the United States after deportation in violation of Title 8 U.S.C.§ 1326(a). He asks this Court to dismiss the indictment against him because his removal proceedings were fundamentally unfair and cannot be used to support this criminal prosecution.
	II.	Argument and Authorities
	Due process requires that a Defendant be permitted to raise a collateral challenge to the use of a removal proceeding as an element of a criminal charge where the proceeding was fundamentally unfair.  United States v. Mendoza-Lopez, 481 U.S. 828, 107 S.Ct. 2148, 2154-2157 (1987).  The removal proceedings against _____________________ were fundamentally unfair and violated his right to due process.  At those proceedings post-IIRIRA law, making those convicted of any “aggravated felony” offense ineligible for section 212(c) relief, was improperly and retroactively applied.  The United States Supreme Court, in INS v. St. Cyr, 533 U.S. 289, 326 (2001), ruled that the elimination of section 212(c) relief could not be retroactively applied to those persons who would have been eligible to seek such relief at the time of their plea.   _____________________ was not afforded full opportunity to seek discretionary relief which may have been granted him.  He was clearly prejudiced by this improper retroactive application of IIRIRA’s provisions: his legal resident status of many years was taken from him, he was ordered removed as a person having been convicted of an aggravated felony, and was separated from his family.
	In order to successfully collaterally attack an earlier removal, in addition to showing  fundamentally unfair removal proceedings, an illegal reentry defendant must show the following: (1) that he exhausted any administrative remedies that may have been available;(2) the removal proceedings improperly deprived him of judicial review; and (3) that he suffered actual prejudice as a result of the deprivation. United States v. _____________________-Avalos, 251 F.3d 505, 507 (5th Cir. 2001); Mendoza-Lopez, 481 U.S. at 842.4
A. _____________________ did not fail to exhaust administrative remedies
	The Fifth Circuit has held that to exhaust administrative remedies a person need only raise the issue on appeal at the agency level.  Goosuwan v. Ashcroft, 252 F.3d 383, 389 (5th Cir. 2001); see also United States v. Girosky-Garibay, 176 F.Supp 2d 705, 712 (W.D. Tex. 2001).  An exception to the exhaustion requirement is where resort to the agency would have been futile because the agency had no power to resolve the issue in the applicant’s favor.  Goonsuwan, 252 F.3d at 389.  _____________________ took measures to seek an administrative remedy to the immigration judge’s adverse removal order.  He appealed  the immigration judge’s finding that he was removable and ineligible for relief to BIA.  BIA rejected _____________________’s claims and dismissed his appeal.  See App. B at 2.  
Therefore, _____________________ did not fail to exhaust the administrative remedy available to him. 	
	Furthermore, even if the court held that Mr. _____________________ failed to exhaust administrative remedies, such a finding would not preclude relief because exhaustion is not required when administrative remedies are inadequate.  Ramirez-Osorio v. INS, 745 F.2d 937, 939 (5th Cir. 1984).  Under the circumstances of Mr. _____________________’s case, seeking further administrative remedies would have been inadequate and  futile.  Until the Supreme Court issued its opinion in St. Cyr, the Attorney General had maintained that the amendments to section 212(c) enacted by IRRIRA and AEDPA had entirely withdrawn his authority to waive deportation for aliens previously convicted of aggravated felonies.  See St. Cyr, 121 S. Ct. 2277–78.  
	Similarly, both the Fifth Circuit and the Board of Immigration Appeals had  held, prior to St. Cyr, that the amendments to section 212(C) precluded discretionary relief from deportation for an alien convicted of an aggravated felony, regardless of whether the conviction predated the effectiveness of the amendments.  See Requena-Rodriguez v. Pasquarell, 190 F.3d 299, 307 (5th Cir. 1999), and In Re Rodriguez-Carillo, Interim Decision 3413, 1999 WL 1390328 (BIA 1999).  With controlling precedent against him, any administrative appeal that Mr. _____________________ might have made would have been futile.   Moreover, at his removal proceeding both the immigration judge and _____________________’s immigration attorney mistakenly believed that no relief was available.  See Deportation Hearing Tr. at 45–48.
B. _____________________’s removal proceedings effectively denied him opportunity for judicial review.
	An immigration judge “has a duty to inform aliens of potential forms of relief for which they are apparently eligible.”  In re Cordova, Interim Decision 3408, 1999 WL 590719 (BIA 1999) (en banc).  An alien is effectively deprived of seeking judicial review when the immigration judge at his deportation hearing fails to adequately explain the alien’s right to relief or his right to appeal. Mendoza-Lopez, 481 U.S. at 840.  At his removal proceedings, _____________________ was not advised of his right to seek relief from deportation; in fact he was  misinformed that because of his aggravated felony status he was ineligible for section 212(c)  relief.   _____________________ was further effectively denied judicial review when his BIA appeal was improperly dismissed. 
	Until St. Cyr, judicial review of _____________________’s removal proceedings would have been unavailing.  Title 8 U.S.C. §1252(A)(2)(C) provides: “ no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [an aggravated felony]  offense.”  The Fifth Circuit interpreted § 1252(A)(2)(C) as precluding not only direct judicial review of a final deportation order, but also habeas review.  See Max-George v. Reno, 205 F.3d 194,  198 (5th Cir. 2000).  Therefore, it is clear that, under the controlling precedent, any appeal of Mr. _____________________’s deportation order—either direct or collateral—would have been dismissed for lack of jurisdiction. Because any administrative or judicial review of the BIA’s improper ruling would have been dismissed, this court should hold that Mr. _____________________ was effectively precluded from seeking judicial review.
C. _____________________ Suffered Actual Prejudice From These Fundamentally Unfair Removal      Proceedings.

	A defendant, like _____________________, who is seeking to challenge his removal proceeding must also demonstrate that he was actually prejudiced by the defective proceeding.  See 8 U.S.C. 1326(d); United States v. Encarnacion-Galvez, 964 F.2d 402, 409 (5th Cir. 1992).  To show prejudice,  _____________________ is not required to demonstrate that, if his deportation proceedings had afforded him due process, the outcome would have been different.  Instead, he  need only demonstrate that there was a “reasonable likelihood that but for the errors complained of [he] would not have been deported.”  Encarnacion-Galvez, 964 F.2d 402, 406; see also United States v. Holland, 876 F.3d 1533, 1536 (11th Cir. 1989) (defendant need only show that “errors might have affected the outcome of the hearing”).  Conversely,  “[i]f the defendant was legally deportable and, despite the INS’s errors, the proceeding ‘could not have yielded a different result,’ the deportation is valid.”  United States v. Benitez-Villafuerte, 186 F.3d 651, 659 (5th Cir. 1999) (citing United States v. Galicia-Gonzalez, 997 F.2d 602, 603 (9th Cir. 1993)).
	_____________________ was classified as an alien with an aggravated felony conviction and was deprived of the opportunity to seek section 212(c) relief through a retroactive application of IIRIRA.  Had he been allowed to seek a mitigation hearing, he had a reasonable likelihood of avoiding deportation.  See St. Cyr, 121 S. Ct. 2291.  In deciding whether to grant relief from deportation under section 212(c), the immigration judge must balance the adverse factors showing an alien’s undesirability as a permanent resident with the social and humane considerations to determine whether the granting of section 212(c) relief appears in the best interests of the United States.  Matter of Marin, 16 I. & N. Dec 581, 583 (1978).  Favorable considerations include: (1) family ties within the United States; (2) lengthy residence in the United States (particularly when residency began when the alien was young); (3) hardship to the alien and his family if deportation occurs; (4) service in the Armed Forces; (5) a history of employment; (6) existence of property or business ties; (7) evidence of value and service to the community; (8) proof of genuine rehabilitation if a criminal record exists; and (9) other evidence attesting to an alien’s good character (e.g. affidavits from family, friends and responsible community representatives).  Id. at 584.  All of these factors may be considered, but no single factor or its lack is necessarily determinative.  Matter of Edwards, 20 I. & N. Dec. 191, 196 (1990).
	In _____________________’s case,  had he had the opportunity, he could have presented significant equities  that likely would have weighed positively in the immigration judge’s considerations.  He had lived in the United States since the age of 17.  His U.S. citizen daughters and his father and sister— both  legal permanent residents—all lived in the United States.  _____________________ had been in a common-law marriage with ______________ for several years, and they owned a home together.  He had a history of steady employment in a fencing and welding business.  At the time he entered his plea of guilty, _____________________ had full custody of his older daughter, _______________, who was _____________ at the time.  In addition, he  had financially and emotionally supported  his younger daughter, _________________, who had and continues to have significant health problems.  With such equitable factors at issue, it is reasonably likely that _____________________ would have been granted section 212(c) relief.
	In  St. Cyr, the Supreme Court noted  the “frequency with which § 212(c) relief was granted” prior to the passing of provisions that eliminated it. Id.  The Court was unpersuaded by the Government’s argument that, because section 212(c) relief was discretionary, its denial could be retroactively applied without great injury.   Id. at 2293.  The Court observed that a substantial percentage of section 212(c) applicants received relief from deportation.  Id. at 2276 & n.5.  Based on this substantial percentage,  the Court stated that, prior to the passage of AEDPA and IIRIRA, aliens like  _____________________ had a “significant likelihood” or receiving section 212(c) relief.  Id. at 2293. 
	In the instant case, the retroactive application of IIRIRA prejudiced _____________________ by depriving him of the ability to seek relief from removal.  Clearly, _____________________ who had resided in this country for twenty one years and had attained permanent resident status suffered actual prejudice by the 
retroactive application of IIRIRA to his case during the removal proceedings.
D.  In United States v. Jose Ojeda-Escobar, the Court Dismissed the Indictment on        Similar Factual and Legal Grounds.

	In Jose Ojeda-Escobar, DR-01-CR-509-OG, the Court ruled that the defendant’s prior deportation could not be used to support his prosecution for illegal reentry after deport.5  In Ojeda’s case, as in _____________________’s, the operative facts were that Ojeda had resided in the United States for a lengthy period and had attained permanent resident status at the time he pleaded guilty to a state  offense.  See App. C at 1.  Ojeda pleaded guilty to his state burglary of a vehicle offense prior to the passage of AEDPA and IIRIRA, but was deported and deemed ineligible for section 212(c) relief as a result of those Acts.  Like _____________________, Ojeda moved the Court to dismiss the indictment based on the Supreme Court’s decisions in Mendoza-Lopez and St. Cyr.   The Court held that under the reasoning in St Cyr, the retroactive application of the IIRIRA amendments to Ojeda’s deportation rendered those deportation proceedings fundamentally unfair.  See App. C at 8.  The Court also noted that “while it [was] not clear whether [Ojeda] attempted to pursue a waiver under § 212(c),” any attempt to do so would have been futile under the law at the time of Ojeda’s deportation proceedings. Id at 5–6.  And finally, the Court held that just as an agency appeal would have been futile, and attempt to seek judicial review would not have been meaningful.  Id. at 8.  Because the operative facts, and the state of the law, are the same in _____________________’s case as in Ojeda’s, the Court should enter an order dismissing the indictment in this case.
  	PRAYER
	WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests this Honorable Court set this matter for hearing and thereafter order the dismissal with prejudice of the indictment pending against him.  

						Respectfully submitted.

						_________________										Attorney for Defendant

CERTIFICATE OF SERVICE

	I hereby certify that I caused to be served a copy of the foregoing Motion to Dismiss, on Mr. ________________, United States Attorney for the _______________ District of Texas (Attn.: Assistant United States Attorney ________________), by mailing it to ________________________, on ________________________.

						

						Attorney for Defendant

APPENDIX A

APPENDIX B

APPENDIX C