By Andrew Keshner, From New York Law Journal

An indictment for illegal re-entry premised on a faulty deportation order cannot stand, a federal judge has ruled.

Eastern District Judge Jack Weinstein said the deportation order against Shani Moncrieffe was invalid, based on the immigration courts’ misapplication of law in proceedings where Moncrieffe represented himself.

And with the 1995 deportation order being defective, Weinstein on Thursday dismissed the 2015 illegal re-entry case against Moncrieffe, who returned to the United States and became a “role model” in his Queens community.

In U.S. v. Moncrieffe, 15-cr-366, Weinstein said the defendant was “wrongfully deported and he, in effect, never left the country.” The judge said the case joined “a distressing group in which an injustice has been committed because a person threatened with deportation has no attorney.”

Moncrieffe is a 40-year-old Jamaican citizen who entered the United States in 1982, at age 7, as a lawful permanent resident based on his mother’s visa.

In 1993, Moncrieffe, a dropout who left a high school troubled by drugs and gangs, was arrested for robbing bus passengers in Queens. He said he joined other boys in the crime to help a friend indebted to a drug dealer threatening violence in case of non-payment.

He was indicted for first-degree robbery and pleaded guilty to the charge, pursuant to Penal Law 160.15, on advice of counsel who did not notify Moncrieffe about deportation possibilities.

According to Weinstein, there was “no satisfying proof” that Moncrieffe pleaded to the specific subsections of the law, an issue the judge dissected.

While awaiting sentence, Moncrieffe was indicted in Brooklyn for third-degree criminal sale of a controlled substance. He pleaded guilty to that offense as well.

In 1994, immigration authorities sought to deport Moncrieffe, saying he was a “deportable alien,” based on his “aggravated felony of robbery” and his conviction of a firearms violation.

Moncrieffe, then 19, appeared at a deportation hearing shackled and without counsel.

Though the immigration judge told Moncrieffe of his right to counsel, Weinstein said “no effort was made by anyone to provide an attorney for this administrative hearing.”

The immigration judge asked Moncrieffe if he wanted to stay in the United States or return to Jamaica. “I want to go back, but I [want to] talk to my mom first,” he replied.

At that time, Moncrieffe’s mother was on life support, recovering from a car accident. Weinstein said Moncrieffe’s desire “suggested he had not yet waived the right to contest deportation.”

The immigration judge said there was no relief available to Moncrieffe, stating that immigration law said, “if you have a gun charge violation against you in immigration proceedings that you can’t stay here in this country” unless Moncrieffe met certain conditions, which the judge said he did not.

“An attorney would not have accepted so cavalier a description of defendant’s legal position,” Weinstein noted.

The Board of Immigration Appeals affirmed the deportation order in 1995, though acknowledging Moncrieffe’s judgment of conviction did not specify under which Penal Law 160.15 subsection he was guilty.

The court said it could be “inferred” Moncrieffe was convicted under either 160.15(2), which said the forcible stealing happens when the individual is “armed with a deadly weapon,” or 160.15(4), where the individual “displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”

Moncrieffe could only be deportable in his case if convicted under those subsections, according to the immigration appeals board. He might have been able to demonstrate his eligibility for adjustment of status based on his relationship with his mother, it said, but there was “no indication in the record” the mother petitioned Moncrieffe’s for admission by filing a visa petition for him.

Noting Moncrieffe lacked a lawyer and his mother was on life support, Weinstein said, “How could he possibly make the required record without counsel?” and said the court’s inference on particular subsections was “impermissible.”

Moncrieffe did not sue in the U.S. Court of Appeals for the Second Circuit or file a habeas petition. He was deported to Jamaica in 1999, returning to the United States soon after.

Weinstein said Moncrieffe acquired his high school equivalency diploma, started his own business and is active in his church.

New York City police arrested Moncrieffe last April for unlicensed operation of a motor vehicle; the arrest led to his federal indictment for illegal re-entry.

Moncrieffe contended the underlying deportation was procedurally unfair and was secured in violation of immigration law and due process.

In his decision, Weinstein said non-citizens accused of illegal re-entry can attack the deportation under 8 U.S.C. §1326(d) by showing an exhaustion of remedies, that the deportation proceedings “improperly deprived the alien of the opportunity for judicial review,” and that the order was “fundamentally unfair.”

Here, Weinstein said immigration authorities repeatedly told Moncrieffe no relief was available. As “an uncounseled immigrant, and a youthful, poorly educated, 19-year-old as well,” Moncrieffe’s failure to press his case after hearing from the immigration appeals court was no bar on collateral attack now.

Weinstein said the deportation was “fundamentally unfair.” He said the immigration judge and the immigration appeals board erroneously concluded Moncrieffe’s state offense constituted a “crime of violence” in the eyes of federal law.

“The minimum conduct under any grade or subsection of the New York robbery statute does not require violent physical force. In the colloquial phrase, violence under the federal statute occurs when ‘push comes to shove.’ A gentle push is enough under the state law, but not under federal law,” the judge said.

With Moncrieffe’s residence in the country at stake, “this difference matters,” Weinstein said.

Here, both the immigration judge and the board of appeals “summarily and incorrectly concluded that Mr. Moncrieffe was convicted of an ‘aggravated felony’ simply because he pled guilty” to first-degree robbery under state law.

Jan Rostal and S. Isaac Wheeler of the Federal Defenders of New York represented Moncrieffe. They could not be reached for comment.

Eastern District Assistant U.S. Attorney Alicia Washington appeared for the prosecution.

Nellin McIntosh, an Eastern District spokeswoman, declined to comment.

IMAGE: Judge Weinstein NYLJ/Rick Kopstein

For more on this story go to: http://www.newyorklawjournal.com/id=1202752155985/Judge-Faults-Illegal-Reentry-Case-Based-on-Unfair-Deportation#ixzz435jLIGX4