EDNY Judge Dismisses Illegal Reentry Indictment Where Defendant Not Advised of Right to Voluntary Departure Prior to Deportation

Illegal re-entry cases are amongst the hardest to defend.  After all, the presence of the defendant in the courtroom is Government Exhibit A.  One defense strategy is to move to dismiss the indictment by attacking the validity of the underlying deportation order, and now, EDNY Judge Ross has joined with other district courts to expand the grounds for such collateral attacks, holding in this terrific decision, United States v. Garcia, 08 cr 32 (ARR), 2008 WL 3890167 (EDNY August 19, 2008), that for purposes of a collateral attack on a deportation order, there is no meaningful distinction between access to a discretionary waiver of removal under former § 212(c) and access to discretionary voluntary departure under § 1229c.  No circuit court has yet addressed this issue.

Garcia claimed that his deportation proceeding violated his Fifth Amendment due process rights because neither the immigration judge who presided over the proceeding nor his attorney told him of his right under 8 U .S.C. § 1229c to depart the United States voluntarily at his own expense in lieu of being deported (a right that is available under some circumstances, and was available to Garcia).  Had they done so, and had he exercised that right, he would have avoided criminal penalties for illegally re-entering.   Finding that the deprivation of Garcia’s voluntary departure rights was fundamentally unfair, Judge Ross granted his motion to dismiss the indictment.  

Lawyers: Raymond Aab and Alberto Ebanks (for defendant); AUSA Matthew Amatruda.