Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

U.S. v. AYENI

September 29, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
NIYI AYENI, DEFENDANT.



The opinion of the court was delivered by: Caldwell, United States District Judge.

MEMORANDUM

I. Introduction

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.

II Background

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 probation.

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.

III. Discussion

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.

A. Jurisdiction

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
  title.

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.