United States v. Gill, No. 12-2207-cr (2d Cir. May 7, 2014) (Katzmann, Winter, and Calabresi), available hereSection 1326(a) of title 8, U.S.C, makes it a felony for an alien who was previously deported from the United States to reenter this country without the consent of the Attorney General to reapply for admission. But, assuming certain procedural requirements are met, a defendant may defend against the charge by challenging the fundamental fairness of the underlying deportation order.
In this case, Gill was deported to Barbados in 2004, following his conviction after trial of attempted robbery, an aggravated felony. At his deportation hearing in 1997, Gill unsuccessfully requested relief from deportation under former section 212(c) of the Immigration and Nationality Act (repealed in 1996), and he appealed to the Bureau of Immigration Appeals (BIA). The BIA dismissed the appeal, ruling that the Antiterrorism and Effective Death Penalty Act of 1996 made noncitizens with aggravated felony convictions, including Gill, ineligible for § 212(c) relief.
After Gill returned to the United States in 2007, he was charged with illegal reentry under Section 1326. He moved to dismiss the charge on the ground that his deportation was fundamentally unfair because, contrary to the BIA's ruling, he was in fact eligible for § 212(c) relief. The district court denied the motion, holding that, under the Second Circuit's decision in Rankine v. Reno, 319 F.3d 93, 96 (2d Cir. 2003), Gill was ineligible for § 212(c) relief because he was convicted of his underlying aggravated felony after trial, rather than after a guilty plea, and that Congress's repeal of 212(c) did not have an impermissible retroactive effect on defendants who went to trial.
This important decision holds that Rankine is no longer good law in light of the Supreme Court's decision in Vartelas v. Holder, 132 S. Ct. 1479 (2012), and that "deeming noncitizens like Gill ineligible for § 212(c) relief merely because they were convicted after trial would have an impermissible retroactive effect because it would impermissibly attach new legal consequences to convictions that pre-date the repeal of § 212(c)." Accordingly, because the district court erroneously found Gill to be ineligible for relief under § 212(c), the Circuit remanded for the court to determine whether, under 8 U.S.C. § 1326(d), Gill had been deprived of the opportunity for judicial review and whether his deportation order was fundamentally unfair. If so, his conviction would have to be vacated and the indictment dismissed.
Commentary: This decision, written by Chief Judge Katzmann, is a must-read for practitioners with illegal reentry cases.