The opinion of the court was delivered by: Caldwell, United States District Judge.
Defendant, Niyi Ayeni ("Ayeni"), a native of Nigeria, has been charged
with failing to comply with a final order of removal, in violation of
8 U.S.C. § 1253(a)(1)(A),(B) and(C). Defendant seeks to dismiss the
indictment, contending that he was denied effective assistance of counsel
during the underlying deportation proceeding, and that the deportation
order on which the indictment is based is therefore invalid. The
Government contends that we lack jurisdiction to consider Defendant's
challenge because the deportation order was based on a firearms
conviction and that Defendant cannot show that his attorney's actions
caused him prejudice such that the order should be vacated.
Ayeni entered the United States from Nigeria in 1989 as a permanent
resident alien. In May 1995, he was convicted in Philadelphia,
Pennsylvania, of two criminal offenses; criminal mischief and carrying a
firearm in a public place or street. He was sentenced to one year of
The Immigration and Naturalization Service ("INS") subsequently
commenced deportation proceedings against Ayeni. At a hearing before an
immigration judge ("IJ") in March 1996, Ayeni sought to terminate the
deportation proceedings or, in the alternative, he requested that he be
granted voluntary departure. In a decision issued in November 1996, the
IJ held that evidence of Ayeni's conviction was "clear, convincing, and
unequivocal." Oral Decision & Order of IJ, Nov. 19, 1996, at 2. The
FBI had confirmed through fingerprints that Ayeni was the person
convicted in 1995, and the IJ found that the record of conviction was
conclusive evidence of the firearms offense. The IJ then determined
that, despite the firearms convictions, Ayeni would be permitted to
voluntarily depart the country, and he was granted until January 2,
1997, to leave.
Ayeni appealed the IJ's decision to the Board of Immigration Appeals
("BIA"). However, his attorney never filed a brief in support of the
appeal even though he received an extension of time to do so.
Accordingly, the BIA dismissed the appeal in October 1997 without
addressing the merits, as permitted by 8 C.F.R. § 3.1(d)(1-a)(i)(E).
Defendant claims that he never received notice of the BIA's decision
because his attorney did not inform him of the outcome.*fn1
On June 23, 1999, Defendant was charged in a one-count indictment with
a violation of 8 U.S.C. § 1253(a)(1)(A),(B) and (C) for his failure
to comply with the departure order. Defendant's motion to dismiss the
indictment seeks collateral review of the underlying deportation order
pursuant to 8 U.S.C. § 1252(b)(7). Defendant argues that the order
should be vacated because he was prejudiced by his attorney's failure to
prosecute his appeal and to inform him of the BIA's decision. Vacating the
deportation order would man-date dismissal of the indictment.
As provided in 8 U.S.C. § 1253(a), an alien who is subject to a
final order of removal and who "willfully fails or refuses" to depart or
make application to depart, or "connives or conspires" in order to
prevent such departure, may be fined or imprisoned or both.
8 U.S.C. § 1253(a). Section 1252(b)(7) of the Immigration and
Nationality Act ("INA") allows a defendant charged with a violation of
section 1253(a) to collaterally challenge the validity of the removal
order, "[i]f the validity of an order of removal has not been judicially
decided." 8 U.S.C. § 1252(b)(7). To obtain review a defendant must
file a motion with the court prior to trial on the criminal charge.
The Government contends that despite the availability of collateral
review under section 1252(b)(7), we are nonetheless deprived of
jurisdiction to review the Defendant's deportation order by
8 U.S.C. § 1252(a)(2)(C), which provides:
Notwithstanding any other provision of law, no court
shall have jurisdiction to review any final order of
removal against an alien who is removable by reason of
having committed a criminal offense covered in
section . . . 1227(a)(2) . . . (C) . . . of this
Section 1227(a)(2)(C) describes various firearms offense, including using
or carrying a firearm, for which an alien may be deported. Because the
departure order entered against Ayeni was based on his firearms offense,
and Defendant now seeks review of that order, section 1252(a)(2)(C)
appears to apply. Defendant argues, however, that we retain jurisdiction
to review the departure order ...