Richards v. Commissioner of Correction ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
FABIAN RICHARDS v. COMMISSIONER
OF CORRECTION
(AC 37481)
Gruendel, Lavine and Mullins, Js.*
Argued January 14—officially released April 26, 2016
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Elyssa N. Williams, for the appellant (petitioner).
Jacob L. McChesney, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Robin D. Krawczyk, senior assis-
tant state’s attorney, for the appellee (respondent).
Opinion
MULLINS, J. The petitioner, Fabian Richards, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus. In his petition, the
petitioner alleged that his criminal trial counsel had
provided ineffective assistance by failing to advise the
petitioner adequately of the immigration consequences
he faced by entering a guilty plea. Because the petitioner
already has been deported to Jamaica, pursuant to a
deportation order issued by the United States Immigra-
tion Court, and has failed to establish that any practical
relief could be provided by this court, we conclude that
his appeal is moot. Accordingly, the appeal is dismissed.
The petitioner is a native of Jamaica, who lawfully
entered this country on January 8, 2007, on a visitor
visa. He married a citizen of the United States and
received permanent resident status in 2010. In 2012, the
petitioner entered guilty pleas to charges of second
degree assault in violation of General Statutes § 53a-60
(a) (2) and carrying a pistol without a permit in violation
of General Statutes § 29-35 (a). Subsequently, he
brought this habeas petition alleging that his trial coun-
sel rendered ineffective assistance by failing to advise
him adequately of the immigration consequences of his
plea. The habeas court denied his petition but granted
certification to appeal, and the petitioner filed the pre-
sent appeal.
Several months after the petitioner had filed his
appellate brief, the respondent, the Commissioner of
Correction, on October 1, 2015, submitted to the Appel-
late Court clerk’s office a letter that stated: ‘‘The Com-
missioner respectfully requests that the clerk bring the
following matter to the court’s attention. During the
pendency of this appeal, the petitioner has been
deported from the United States to Jamaica pursuant
to an immigration court deportation order. This is a
relevant fact for the court’s consideration under State
v. Aquino, 279 Conn. 293, 901 A.2d 1194 (2006), and St.
Juste v. Commissioner of Correction, 155 Conn. App.
164, 109 A.3d 523, cert. granted, 316 Conn. 901, 111 A.3d
470 (2015).’’
The respondent also submitted a letter of supplemen-
tal authority, stating that it may also refer to 8 U.S.C.
§ 1229b (a), 8 U.S.C. § 1229b (d), 8 U.S.C. § 1182 (a) (2)
(A), and 8 U.S.C. § 1182 (a) (2) (C). The respondent
contends that the appeal is moot. The petitioner’s coun-
sel concedes that the petitioner has been deported, but
argues that the matter is not moot.1 We agree with the
respondent that the appeal is moot because there is no
practical relief that can be afforded the petitioner.
‘‘Under our well established jurisprudence, [m]oot-
ness presents a circumstance wherein the issue before
the court has been resolved or had lost its significance
because of a change in the condition of affairs between
the parties. . . . In determining mootness, the disposi-
tive question is whether a successful appeal would ben-
efit the plaintiff or defendant in any way. . . . In other
words, the ultimate question is whether the determina-
tion of the controversy will result in practical relief to
the complainant. . . . Mootness implicates [this]
court’s subject matter jurisdiction and is thus a thresh-
old matter for us to resolve.’’ (Citation omitted; internal
quotation marks omitted.) State v. Jerzy G., 162 Conn.
App. 156, 161, A.3d (2015), cert. granted, 320 Conn.
919, A.3d (2016).
For a deported petitioner to establish that an appeal
is not moot, our Supreme Court has stated that the
petitioner is required to establish that the underlying
conviction was the exclusive basis of his or her deporta-
tion. State v. Aquino, supra, 279 Conn. 298; see State
v. Jerzy G., supra, 162 Conn. App. 161–64 (following
rule of Aquino); Paulino v. Commissioner of Correc-
tion, 155 Conn. App. 154, 162–63, 109 A.3d 516 (same),
cert. denied, 317 Conn. 912, 116 A.3d 310 (2015); Quir-
oga v. Commissioner of Correction, 149 Conn. App.
168, 173, 87 A.3d 1171 (same), cert. denied, 311 Conn.
950, 91 A.3d 462 (2014); State v. Chavarro, 130 Conn.
App. 12, 17–18, 21 A.3d 541 (2011) (same); but see St.
Juste v. Commissioner of Correction, supra, 155 Conn.
App. 174 (petitioner must prove both that underlying
conviction was exclusive basis for deportation and that
petitioner would be permitted reentry in absence of
underlying conviction). ‘‘If [the deportation] was not
the result of his guilty plea alone, then this court can
grant no practical relief and any decision rendered by
this court would be purely advisory.’’ State v. Aquino,
supra, 279 Conn. 298.
In the present case, the respondent argues that on
the basis of the present record, we cannot ascertain
the basis for the petitioner’s deportation. The petitioner
argues that we know the basis because he has no convic-
tions other than those underlying the present case. We
agree with the respondent.
Although the December 28, 2012 notice to appear,
issued by the Department of Homeland Security, was
based on the petitioner’s underlying convictions in the
present case, we do not have an official copy of the
decision of the United States Immigration Court giving
us the basis for its ruling deporting the petitioner, and
the order, itself, does not contain the basis. See footnote
1 of this opinion. Indeed, Aquino requires proof that
the conviction being challenged is ‘‘the exclusive basis
of the petitioner’s deportation, rather than a primary
or likely one.’’ Quiroga v. Commissioner of Correction,
supra, 149 Conn. App. 174. Without knowing the precise
basis of the immigration court’s ruling, we are left to
surmise and speculate as to whether other or additional
grounds formed the basis of that court’s ruling.
If a petitioner fails to prove that the underlying con-
viction was the sole basis for his deportation, the appeal
also may not be moot if the petitioner can prove collat-
eral consequences by providing ‘‘evidence to suggest
that, in the absence of the guilty plea, [he] would be
allowed to reenter this country or become a citizen.’’
State v. Aquino, supra, 279 Conn. 298–99 n.3; see State
v. Chavarro, supra, 130 Conn. App. 18 (same); but see
St. Juste v. Commissioner of Correction, supra, 155
Conn. App. 174 (petitioner must prove both that under-
lying conviction was exclusive basis for deportation and
that petitioner would be permitted reentry in absence of
underlying conviction).
‘‘[U]nder this court’s long-standing mootness juris-
prudence . . . despite developments during the pen-
dency of an appeal that would otherwise render a claim
moot, the court may retain jurisdiction when a litigant
shows that there is a reasonable possibility that prejudi-
cial collateral consequences will occur. . . . [T]o
invoke successfully the collateral consequences doc-
trine, the litigant must show that there is a reasonable
possibility that prejudicial collateral consequences will
occur. Accordingly, the litigant must establish these
consequences by more than mere conjecture, but need
not demonstrate that these consequences are more
probable than not. This standard provides the necessary
limitations on justiciability underlying the mootness
doctrine itself. Where there is no direct practical relief
available from the reversal of the judgment . . . the
collateral consequences doctrine acts as a surrogate,
calling for a determination whether a decision in the
case can afford the litigant some practical relief in the
future.’’ (Citation omitted; internal quotation marks
omitted.) State v. Jerzy G., supra, 162 Conn. App.
165–66.
The respondent contends that the petitioner has not
and could not establish that he would be allowed reen-
try into this country because (1) under 8 U.S.C. § 1229b
(a) and (d),2 the petitioner would have to establish that
he had been in this country continuously for more than
seven years before his deportation began to be eligible
to apply to vacate that order of deportation, and he had
lived here, at most, six and one-half years before the
relevant statutory time period began, and (2) officers
discovered that the petitioner had been growing mari-
juana in his home and had paraphernalia indicating sale
of marijuana, and, although that charge had been nolled
in this case as part of the plea deal, the petitioner admit-
ted in open court before the habeas judge that he had
been growing marijuana. The respondent contends that
pursuant to 8 U.S.C. § 1182 (a) (2) (A),3 the petitioner
could be denied readmission because he admitted to
drug activity, and pursuant to 8 U.S.C. § 1182 (a) (2)
(C),4 he could be denied readmission if the Attorney
General of the United States has reason to believe he
engaged in drug activity. Notwithstanding these federal
statutes, the petitioner made no attempt to establish
his eligibility for reentry before the habeas court. This
failure is fatal to his claim. See Paulino v. Commis-
sioner of Correction, supra, 155 Conn. App. 164.
Because we are unable to ascertain the precise basis
for the order of deportation issued by the United States
Immigration Court, and the petitioner failed to produce
any evidence before the habeas court that, in the
absence of his convictions, he would be permitted to
return to the United States, we conclude that this appeal
is moot.
The appeal is dismissed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Included in the appendix to the petitioner’s appellate brief is a December
28, 2012 notice to appear, issued to the petitioner by the United States
Department of Homeland Security, notifying the petitioner that he is subject
to removal from the United States, pursuant to the Immigration and National-
ity Act, due to his conviction of an aggravated felony, namely, the second
degree assault charge, and his conviction of possessing or carrying a firearm.
See 8 U.S.C. § 237 (a) (2) (A) (iii) and (a) (2) (C). Also included is an order
from the United States Immigration Court that states that it is a memorandum
of the court’s decision, entered on June 12, 2014, but that the ‘‘oral or written
findings, decision and orders is the official opinion in this case.’’ The order
stated that the petitioner was ordered removed from the United States to
Jamaica and that his application for deferral of removal was denied. The
order does not state the official basis for removal, and the petitioner has
not furnished us with a transcript of the immigration court’s official decision.
During oral argument in this appeal, the parties discussed the issue of
mootness.
2
Title 8 of the United States Code, § 1229b (a), provides: ‘‘Cancellation
of removal for certain permanent residents
‘‘The Attorney General may cancel removal in the case of an alien who
is inadmissible or deportable from the United States if the alien—
‘‘(1) has been an alien lawfully admitted for permanent residence for not
less than 5 years,
‘‘(2) has resided in the United States continuously for 7 years after having
been admitted in any status, and
‘‘(3) has not been convicted of any aggravated felony. . . .’’
Title 8 of the United States Code, § 1229b (d), provides: ‘‘Special rules
relating to continuous residence or physical presence
‘‘(1) Termination of continuous period
‘‘For purposes of this section, any period of continuous residence or
continuous physical presence in the United States shall be deemed to end
(A) except in the case of an alien who applies for cancellation of removal
under subsection (b) (2) of this section, when the alien is served a notice
to appear under section 1229 (a) of this title, or (B) when the alien has
committed an offense referred to in section 1182 (a) (2) of this title that
renders the alien inadmissible to the United States under section 1182 (a)
(2) of this title or removable from the United States under section 1227 (a)
(2) or 1227 (a) (4) of this title, whichever is earliest.
‘‘(2) Treatment of certain breaks in presence
‘‘An alien shall be considered to have failed to maintain continuous physi-
cal presence in the United States under subsections (b) (1) and (b) (2) of
this section if the alien has departed from the United States for any period
in excess of 90 days or for any periods in the aggregate exceeding 180 days.
‘‘(3) Continuity not required because of honorable service in Armed Forces
and presence upon entry into service
‘‘The requirements of continuous residence or continuous physical pres-
ence in the United States under subsections (a) and (b) of this section shall
not apply to an alien who—
‘‘(A) has served for a minimum period of 24 months in an active-duty
status in the Armed Forces of the United States and, if separated from such
service, was separated under honorable conditions, and
‘‘(B) at the time of the alien’s enlistment or induction was in the
United States.’’
3
Title 8 of the United States Code, § 1182, provides in relevant part: ‘‘(a)
Classes of aliens ineligible for visas or admission
‘‘Except as otherwise provided in this chapter, aliens who are inadmissible
under the following paragraphs are ineligible to receive visas and ineligible
to be admitted to the United States . . .
‘‘(2) Criminal and related grounds
‘‘(A) Conviction of certain crimes
‘‘(i) In general
‘‘Except as provided in clause (ii), any alien convicted of, or who admits
having committed, or who admits committing acts which constitute the
essential elements of—
‘‘(I) a crime involving moral turpitude (other than a purely political
offense) or an attempt or conspiracy to commit such a crime, or
‘‘(II) a violation of (or a conspiracy or attempt to violate) any law or
regulation of a State, the United States, or a foreign country relating to a
controlled substance (as defined in section 802 of Title 21),
‘‘is inadmissible.
‘‘(ii) Exception
‘‘Clause (i) (I) shall not apply to an alien who committed only one
crime if—
‘‘(I) the crime was committed when the alien was under 18 years of age,
and the crime was committed (and the alien released from any confinement
to a prison or correctional institution imposed for the crime) more than 5
years before the date of application for a visa or other documentation and
the date of application for admission to the United States, or
‘‘(II) the maximum penalty possible for the crime of which the alien was
convicted (or which the alien admits having committed or of which the acts
that the alien admits having committed constituted the essential elements)
did not exceed imprisonment for one year and, if the alien was convicted
of such crime, the alien was not sentenced to a term of imprisonment in
excess of 6 months (regardless of the extent to which the sentence was
ultimately executed). . . .’’
4
Title 8 of the United States Code, § 1182, provides in relevant part: ‘‘(a)
Classes of aliens ineligible for visas or admission
‘‘Except as otherwise provided in this chapter, aliens who are inadmissible
under the following paragraphs are ineligible to receive visas and ineligible
to be admitted to the United States . . .
‘‘(2) Criminal and related grounds . . .
‘‘(C) Controlled substance traffickers
‘‘Any alien who the consular officer or the Attorney General knows or
has reason to believe—
‘‘(i) is or has been an illicit trafficker in any controlled substance or in
any listed chemical (as defined in section 802 of Title 21), or is or has been
a knowing aider, abettor, assister, conspirator, or colluder with others in
the illicit trafficking in any such controlled or listed substance or chemical,
or endeavored to do so; or
‘‘(ii) is the spouse, son, or daughter of an alien inadmissible under clause
(i), has, within the previous 5 years, obtained any financial or other benefit
from the illicit activity of that alien, and knew or reasonably should have
known that the financial or other benefit was the product of such illicit
activity,
‘‘is inadmissible. . . .’’