Deported Defendants: Challenging Convictions From Outside U.S.?

By Labe M. Richman

June 14, 2006


As a result of extensive plea bargaining, there were over 168,000 convictions last year in New York City alone, a mind-boggling number.

Of course, the millions of convictions attained in New York over the past decades have led to numerous deportations. Obviously, once deported, many of these individuals are motivated to investigate the propriety of their conviction in an effort to re-enter the United States.

Litigating From the Outside

It is the purpose of this article to examine whether an individual may challenge the legality of his conviction after being expelled from the country. Despite the practical difficulties of litigating from outside the jurisdiction, there is no absolute bar to the filing of a constitutional challenge by appeal or by way of Criminal Procedure Law (CPL) §440.10.

Most criminal appeals lawyers assume the opposite. This is because there are numerous summary appellate division decisions where appeals were dismissed because the defendant-appellant was deported.1 In some cases, CPL §440.10 challenges were also summarily dismissed for the same reason.2 However, none of these decisions contain a discussion of the legal rationale for the dismissal nor do they contain a description of the facts surrounding the deportations or the convictions. Therefore, the opinions are of little precedential value.

Furthermore, and probably more important, all of the above summary decisions cite People v. Del Rio3 to support the dismissal of the appeal of a defendant who has been deported. Del Rio is a very interesting case that deserves extended discussion. Not only does it not bar a challenge by a deported individual, it actually contains language that supports a defendant's right to challenge a conviction when he has been involuntarily removed from the jurisdiction, as in a deportation.

In 1961, Mr. Del Rio, a Cuban national, was convicted of murder after trial and sentenced to 20 years to life. As part of a prisoner exchange with the Cuban government, the governor commuted Mr. Del Rio's sentence and allowed him to be paroled, provided that he agreed to never return to the United States. After Mr. Del Rio accepted this commutation and left the United States, the prosecution sought to dismiss his appeal. The court granted the motion, but, in reaching that decision, it spent the better part of the opinion determining whether Mr. Del Rio's departure from the United States was voluntary. Indeed, it noted the compelling fact that when the assistant attorney general presented the governor's agreement for commutation of his sentence, Mr. Del Rio immediately signed it without waiting for the guard to remove his handcuffs. The legal importance of the voluntariness of Mr. Del Rio's removal from the United States was made even more clear when the court noted in the procedural history of the case that it had dismissed the appeal on an earlier occasion and had vacated that order when it was alleged that his removal was not voluntary. This implies that an involuntary removal from New York, such as during a deportation, could not strip jurisdiction from the court.

The 'Del Rio' Court

In reaching its decision, the Del Rio court relied on the fugitive disentitlement doctrine which holds that a convict who has escaped or absconded cannot avail himself of the court's jurisdiction.4 Such a rule is good public policy because it discourages flight while an appeal is pending. It would be a dishonor to the court to allow a defendant to flee and still appeal his sentence and conviction when he would not have to fulfill his sentence or be retried once the appeal was decided. Such action, of course, flouts the authority of the court. However, it is indisputable that the application of this doctrine also requires a voluntary absence by the defendant. As the U.S. Court of Appeals for the Eleventh Circuit stated in United States v. Ortega-Rodriguez,5 a fugitive defendant forfeits his right to contest the conviction on appeal unless his absence from the jurisdiction "was due to matters beyond his control."6 This exception to the doctrine applies to deportees because they are normally expelled from the country against their will which is, by definition, beyond their control.7

Even though the fugitive disentitlement doctrine and Del Rio are clearly distinguishable from involuntary deportations, as noted above, there are still numerous summary appellate division opinions that dismissed appeals because the defendant was deported. These decisions must be addressed and, in reality, they can be reconciled with the above analysis. First, it may be that the substance of these appeals were meritless, that counsel lost touch with the defendant after his deportation,8 and that the motion to dismiss the appeal was, thus, unopposed by defense counsel.9 This explains the summary nature of the order.

Second, it may also be that the deportations occurred for immigration violations unrelated to the convictions on appeal. Therefore, in that situation, even if the challenged conviction was reversed on appeal, the defendant might never be able to return for trial because he is inadmissible to the United States for other reasons. This circumstance would bring the case within the ambit of Del Rio, where the defendant agreed to never return to the United States. It would not make sense to review a conviction when the defendant is forever banned from the United States for entirely independent reasons. In such a situation, the court would have to expend great effort to decide the case, and then if the conviction was vacated, it would never be able to try the defendant on the indictment.

This would be another reason that a defendant might not oppose a motion to dismiss an appeal — that is, reversal would have no effect on his right to re-enter the United States and the conviction might not affect his life in his home country.

However, the situation is much different when the conviction that the defendant seeks to challenge actually caused his deportation and keeps him from re-entering the United States. This was exactly the reasoning of the Washington State Supreme Court when it ruled that a defendant may challenge his conviction on appeal when he is outside the United States.10 In such cases, the appeal (and for that matter a collateral challenge), would not be moot at all but would impact on the defendant's right to re-enter the United States, a critical issue for any prior resident.

Conclusion

To guarantee fairness, New York law should be interpreted similarly. A defendant whose rights are violated and is then deported against his will should not be denied redress in our courts simply because he is not situated in the country. New York State should not be able to win post-conviction litigation simply because the federal government expelled the defendant against his will before he could vindicate his constitutional and statutory rights.11

Labe M. Richman, an adjunct professor at New York Law School, specializes in challenging convictions related to immigration problems.

Endnotes:

1. People v. Wright, 274 A.D.2d 599 (2nd Dept. 2000); People v. Shaw, 237 A.D.2d 995 (4th Dept. 1997); People v. Malbranche, 268 A.D.2d 488 (2nd Dept. 2000); People v. Forde, 182 A.D.2d 830 (2nd Dept. 1992); People v. Hernandez, 157 A.D.2d 854 (2nd Dept. 1990); People v. Ragsdale, 144 A.D.2d 708 (2nd Dept. 1988); People v. Adamson, 122 A.D.2d 147 (2nd Dept. 1986); People v. Jiminez, 97 A.D.2d 799 (2d Dept. 1983).

2. People v. Byfield, 7 Misc.3d 126(A)(N.Y. Sup., App. Term 2005). The briefs on appeal reflect that the defense did not contest the mootness of the appeal. Therefore, in Byfield, the issue raised in this article was not addressed in an adversarial process and the decision contains no facts or analysis.

3. People v. Molina Del Rio, 14 N.Y.2d 165 (1964).

4. The Del Rio court relied on People v. Genet, 59 N.Y. 80 (1874); For a discussion of the fugitive dis-entitlement doctrine see, Ortega-Rodriguez v. United States, 507 U.S. 234 (1993); Peppin v. Lewis, 194 Misc.2d 151 (Family Court, Albany 2002).

5. 13 F.3d 1474, 1476 (11th Cir. 1994).

6. Id. at 1476.

7. See, People v. Clancy, 39 A.D.2d 538 (1st Dept. 1972).

8. See, People v. Shaw, 237 A.D.2d 995 (4th Dept. 1997)(defendant deported and whereabouts unknown).

9. See note 2.

10. State v. Ortiz, 774 P.2d 1229 (Wash. 1989)(en banc); See, United States v. Campos-Serrano, 404 U.S. 293, 294 n. 2 (1971); United States v. Marsh, 747 F.2d 7, 9, n. 2 (1st Cir. 1984); Cuellar v. State, 13 S.W.2d 449, 451 (Tex. App. Corpus Christi, 2000).

11. It should be noted, however, that the DHS cannot deport individuals on convictions which are still on appeal. Matter of Thomas, 21 I&N Dec. 20 (BIA 1995) citing Pino v. Landon, 349 U.S. 901 (1955); Matter of Ozkok, 19 I&N 546, 552 n. 7 (BIA 1988); 8 U.S.C. §§1101 (f)(3), (7) & (8). The situation discussed in this article will arise more often for defendants who failed to appeal in the first instance but whose rights were otherwise violated, see, People v. Corso, 40 N.Y.2d 578 (1976), or for defendants who fail to tell the DHS that their convictions are still on appeal.