United States District Court, E.D. Kentucky, Northern Division, Covington
MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
It is not uncommon for courts to see multiple cases of the same type, often involving the same parties. It is uncommon, however, to see a second case involving the same offense and the same defendant before the Court has even resolved the first. That is the precise situation here.
In the first case, a jury convicted Edward Darko Agyemano of resisting deportation. See United States v. Agyemano, No. Crim. 14-20-ART (E.D. Ky. Nov. 25, 2014), D.E. 56 (guilty verdict). Because the outcome of Agyemano's motion to overturn the guilty verdict depended on a factual dispute currently before the Board of Immigration Appeals ("BIA"), the Court chose to stay sentencing until the BIA resolved the dispute. D.E. 80 (order denying Agyemano's motion to overturn his verdict pending the outcome of his BIA appeal). Before the BIA could act, however, federal agents tried again to deport Agyemano. Again, Agyemano resisted. And again, the United States charged him with resisting deportation. So here we are, for the second time, under much the same circumstances as the first.
Agyemano filed a motion to dismiss the most recent charge against him, claiming that he cannot be guilty of resisting expulsion because the underlying order was (1) automatically stayed, (2) not final, and (3) in violation of his due-process rights. See R. 17. But Agyemano's arguments fail. When federal agents tried to remove Agyemano for the second time, they were executing an enforceable, final order that did not violate due process. Accordingly, the Court will deny Agyemano's motion to dismiss.
Edward Darko Agyemano is a citizen of Ghana. D.E. 1-1 at 1. In 2003, Agyemano entered the United States on a student visa. Id. But contrary to the conditions of his student visa, Agyemano did not enroll in classes. Id. Nearly five years later, the Department of Homeland Security served a notice for Agyemano to appear before an Immigration Judge ("IJ") for failing to maintain the student status under which he was admitted to the United States. Id. at 2. But Agyemano did not show up for the hearing. Id. According to Agyemano, he never received the notice to appear. Regardless, on September 9, 2013, the IJ ordered in absentia that Agyemano be removed from the United States. Id. Because Agyemano had no right to appeal the in absentia order of removal, 8 C.F.R. § 1240.15 ("[N]o appeal shall lie from an order of removal in absentia."), he filed a motion to reopen the proceeding and a motion for asylum, D.E. 1-1 at 2-3. The IJ denied both motions, id., but failed to inform Agyemano of his right to appeal the denial of his motion to reopen. R. 17-2. When federal agents tried to execute the removal order, Agyemano physically resisted. D.E. 1-1 at 2-3. The United States charged him with violating 8 U.S.C. § 1253(a)(1)(C)-"conniv[ing] or conspir[ing]... to prevent or hamper... the alien's departure pursuant to [an outstanding final order of removal]." D.E. 9. In August 2014, a jury found Agyemano guilty of the charge. D.E. 56. Agyemano challenged the verdict. D.E. 59 (motion to set aside the verdict); D.E. 69 (motion to reconsider). Among other arguments, Agyemano alleged that the IJ's failure to notify him of his right to appeal violated his due process rights. D.E. 59 at 2-3; see also D.E. 69 at 2-3.
Meanwhile, Agyemano's administrative challenge continued. On October 8, 2014, the IJ reissued the order denying Agyemano's motion to reopen the removal proceeding. R. 17-3. In the order, the IJ acknowledged that he had failed to properly notify Agyemano of his right to appeal the denial of his motion to reopen the September 2013 removal order. Id. at 1-2. This time, however, the IJ remedied the error, explicitly advising Agyemano of his right to appeal. Id. at 2. Agyemano appealed the denial, alleging that he did not receive notice of the original removal proceeding. R. 17-4. That appeal is still pending before the BIA. R. 17-5.
The outcome of Agyemano's BIA appeal will also determine the outcome of Agyemano's challenge to his guilty verdict in the first case before this Court. See D.E. 80. Before the Court can overturn Agyemano's conviction for resisting an order of removal, the Court must find that the order of removal violated Agyemano's right to due process. That conclusion requires a finding of prejudice-a likelihood that the failure to notify Agyemano of his right to appeal changed the ultimate result of the removal proceeding. Id. at 4-7. Depending on the outcome of a factual dispute, Agyemano may have won on appeal: If Agyemano never received notice of the first removal proceeding-as he claims-then the removal order could be rescinded. See D.E. 69 at 2; 8 U.S.C. § 1229a(b)(5)(C) (allowing rescission of a removal order in absentia when "the alien demonstrates that [he] did not receive notice [of the hearing]"). Because that factual question is currently before the BIA, the Court chose to stay Agyemano's sentencing until the BIA reaches a decision. D.E. 80.
Soon after the IJ reissued his denial of Agyemano's motion to reopen, and despite the stay of Agyemano's sentencing in this Court, federal agents again tried to remove Agyemano. Agyemano resisted, and the United States filed a new charge for resisting a final removal order. R. 1.
An indictment must assert facts that, if proved, would constitute an offense. United States v. Landham, 251 F.3d 1072, 1079 (6th Cir. 2001). Agyemano argues that the indictment here fails this basic test for three reasons: First, the order of removal had been automatically stayed so he was not subject to removal when the federal agents tried to send him back to Ghana for a second time. R. 17 at 3-4. Second, the order was not "final" as the statute requires because the IJ failed to notify Agyemano of his right to appeal. Id. at 5. And, finally, the order was deficient for failing to give notice of appeal rights, so indicting him based on that order would violate due process. Id. at 5-6. But all three arguments fail.
Before addressing the merits of Agyemano's motion, it is helpful to briefly review the statutory scheme. For years, the United States conducted two types of proceedings to expel noncitizens from the country: deportation proceedings and exclusion proceedings. In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") combined the "two previously distinct" expulsion procedures-deportation proceedings and exclusion proceedings-to "forge" a new creation called removal proceedings. Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 349, 351 (2005). Because the IIRIRA was prospective, however, it did not completely eliminate deportation and exclusion proceedings. See Fieran v. I.N.S., 268 F.3d 340, 345 (6th Cir. 2001) (quoting the IIRIRA § 309(c)(1)) (interpreting the IIRIRA as inapplicable to "alien[s] who [were] in exclusion or deportation proceedings before the [IIRIRA's] effective date"). Proceedings that started before the IIRIRA's 1997 effective date would be governed by rules that still recognize the deportation-exclusion distinction. See, e.g., Pilica v. Ashcroft, 388 F.3d 941, 951 n.9 (6th Cir. 2004). But all "[e]xpulsion proceeding[s] initiated after the [IIRIRA's] 1997 effective date are removal proceedings." Elia v. Gonzales, 431 F.3d 268, 272 n.4 (6th Cir. 2005).
Even though "removal proceeding" and "deportation proceeding" are distinctly different terms of art, courts continue to use the ordinary meaning of "deportation" to describe the outcome of removal proceedings. Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 109 (2d Cir. 2007) ("Except when referring to specific statutory language, we will use the terms deportation' and removal' interchangeably in this opinion." (internal citation omitted)). So to say that "[a]n alien may be deported for failing to appear at a removal proceeding " does not conflate deportation and removal proceedings. See Mhaidli v. Holder, 381 F.App'x 521, 524 (6th Cir. 2010) (emphasis added).
Agyemano entered the United States on a student visa in 2003 and became subject to a notice to appear in 2008. D.E. 1-1 at 1, 2. That 2008 notice to appear initiated the proceeding to expel Agyemano from the United States. See Matovski v. Gonzales, 492 F.3d 722, 727 (6th Cir. 2007) ("[T]he [INS] may initiate removal proceedings against the alien by issuing a Notice to Appear."). Because Agyemano's expulsion proceeding started long after the IIRIRA's 1997 effective date, it was a removal proceeding-not a deportation ...