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United States v. Dixon

United States District Court, D. Massachusetts

July 15, 2016

UNITED STATES OF AMERICA
v.
DONOVAN DIXON, Defendant.

          MEMORANDUM & ORDER

          NATHANIEL M. GORTON UNITED STATES DISTRICT JUDGE

         Defendant Donovan Dixon (“defendant” or “Dixon”) challenges the validity of the indictment pending against him on the grounds that the deportation on which it is based was unfairly imposed. He has therefore moved to dismiss the indictment and the government opposes that motion.

         I. Background

         Dixon was born in Jamaica and first entered the United States as a Legal Permanent Resident in 1971 at the age of twelve. Defendant has three adult children born in the United States, two of whom reside in Massachusetts and one of whom resides in Florida.

         In the early 1980s defendant was convicted of several offenses in Massachusetts and New York state courts: 1) possession with intent to distribute a Class D controlled substance (marijuana), for which he received a sentence of probation (1980); mutilating a firearm serial number and unlawfully carrying a firearm, for which he was sentenced to serve one year in the Billerica House of Correction (sentence imposed in 1982 and reimposed in 1988); possession of a controlled substance (marijuana) with intent to distribute, for which he was sentenced to serve 6 months concurrent with the sentence for the firearms offenses (complaint received in 1982, sentenced imposed 1988); and criminal sale of a controlled substance (cocaine), for which he was sentenced to serve five years in a New York state facility (1983).

         Upon defendant's first conviction in 1980, he was informed that he was subject to deportation under Section 241(a)(11) of the Immigration and Nationality Act ("the Act") and was placed in immigration removal proceedings. After defendant failed to appear before an Immigration Judge for his initial removal hearing on December 11, 1980, the Immigration and Naturalization Service ("INS") administratively closed his case.

         On April 27, 1989 the INS encountered Dixon at the Middlesex County House of Correction in Billerica, Massachusetts where he was serving his concurrent state sentences from his 1982 convictions. On August 2, 1989 Dixon's attorney filed with the INS an Application for Advance Permission to Return to Unrelinquished Domicile pursuant to Section 212(c) of the Act. Accompanying the application Dixon’s attorney filed only two short letters of support but did not file defendant’s tax returns or a country conditions report about Jamaica, which, according to defendant, was besieged with politically motivated violence around that time.

         The INS subsequently added an additional charge of deportability to its petition for deportation based on defendant’s conviction for possession of a controlled substance (marijuana) with intent to distribute (apparently the offense for which he was sentenced in 1988). On May 3, 1990 defendant and his attorney appeared at a deportation hearing, where the Immigration Judge denied defendant’s Section 212(c) Application and ordered Dixon to be deported to Jamaica pursuant to Sections 241(a)(11) and 241(a)(4)(B) of the Act. At the hearing, the Immigration Judge read the deportation order and informed Dixon that “if you file an appeal, the notice is due by May 14, 1990.” The Immigration Judge then asked defendant’s attorney whether defendant reserved his right to appeal, which the attorney answered affirmatively. No notice of appeal was filed in the case. Dixon was deported on June 1, 1990.

         Defendant returned to the United States at an unknown date. Immigration and Customs Enforcement (“ICE”, formerly INS) again encountered Dixon on October 13, 2015 at the Bristol County House of Correction in North Dartmouth, Massachusetts, where he was being held on state charges of witness intimidation and being a fugitive from justice. On November 12, 2015, a federal grand jury returned an indictment charging Dixon with one count of illegal reentry after deportation, in violation of 8 U.S.C. §§ 1326(a) and (b)(2).

         II. Motion to Dismiss the Indictment

         Title 8 U.S.C. § 1326(d) permits an alien to mount a collateral attack against a prior deportation order under certain, limited circumstances. In order to succeed, the alien must demonstrate that

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order; (2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and (3) the entry of the order was fundamentally unfair.

8 U.S.C. § 1326(d).

         Dixon claims that he was improperly deprived of judicial review, rendering the deportation order fundamentally unfair, because 1) the Immigration Judge failed to advise him of his appellate rights, 2) his attorney failed to advise him of his appellate rights and failed to appeal the deportation order despite reserving the right to do so and 3) his attorney failed to file a political asylum application for relief from deportation. Defendant further avers that because his failure to exhaust his administrative remedies is the result of a due ...


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