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March 25, 1988


The opinion of the court was delivered by: MCNICHOLS


 On March 4, 1988 Mr. Salgado brought a motion under Rule 60(b)(6), Federal Rules of Civil Procedure, to set aside a conviction obtained against him in this district in 1964. A conference was held on March 22, 1988 at 8:30 a.m. AUSA Crum and Mr. Kitching appeared personally, and Mr. Mullery and Mr. Salgado participated telephonically. It was the general consensus of all concerned that the equities militate strongly in favor of relieving defendant from prospective operation of the judgment. The question is whether, equities aside, the Court has authority to take any action. As Mr. Salgado was advised at the close of the conference, were there anything that could be done for him in this proceeding, it would be.

 The facts are undisputed. Mr. Salgado first entered the country lawfully in 1943 as a seasonal agricultural worker under the Bracero program. He returned during harvest season over the ensuing years and in 1947 married a United States citizen. He was granted status as a permanent resident alien the following year. For some reason not reflected in the record, defendant apparently never applied for naturalization. In 1964 he pled guilty to a charge of failing to pay transfer tax on what, by today's standards, would be a small quantity of marijuana and was sentenced to a two-year term of imprisonment. While incarcerated, he went through deportation proceedings and was ordered deported. After serving approximately eighteen months, he was released from prison and self-deported. Advised by prison officials that he could not re-enter the United States for a period of two years, he followed that direction and remained in Mexico until 1969 when he re-entered the United States using the green card which had never been taken from him.

 Life went on uneventfully thereafter for the next fifteen years. Mr. Salgado found steady work with a rancher in California and was inspected on numerous occasions by INS agents without incident. He spent vacations in Mexico from time to time and neither the validity of his green card nor his right to re-enter was ever questioned.

 In 1984 Mr. Salgado applied for Social Security benefits. During a routine eligibility investigation, the SSA determined that defendant had been deported and that so far as the INS was concerned, he was in the country unlawfully. He and his wife thereafter visited relatives in Mexico, as they had on occasion over the years. While there, Mr. Salgado contacted the American Embassy to seek clarification of his status. State was apparently not plugged into the same computer as was INS, because defendant was told that his green card was valid, and that he was a lawful permanent resident. In the meantime, his wife filed an I-130 petition with the INS seeking immediate relative status. The filing of the petition triggered an investigation which culminated in Mr. Salgado's arrest as an illegal and the commencement of deportation proceedings which are currently ongoing.

 According to defense counsel, the best that Mr. Salgado can expect from the administrative process under present law is an indeterminate deferral which would allow him to remain in the country without status and subject to periodic review. In that undocumented nether world, his family would not be entitled to Social Security benefits.

 As the parties are aware, there are significant questions concerning the availability of the relief sought; including, inter alia : (1) whether FRCP 60 applies to criminal proceedings; (2) whether the circumstances set forth above would warrant such extraordinary relief; and (3) whether the unprecedented delay of twenty-four years since the time of conviction would per force preclude consideration of the subject motion. Furthermore, questions of technical propriety aside, while a court generally decides only the case before it, based on the facts as they are found, and on the law as it appears at the time, there is always a concern for establishing bad precedent. It is virtually a foregone conclusion that once the amnesty window closes in May of this year and the INS turns its efforts to the enforcement provisions of IRCA, the courts are going to be inundated with hardluck tales such as presented here. Some will involve aliens who could have, but did not, avail themselves of the amnesty program. Some will involve aliens who were not eligible, perhaps for the same reason as Mr. Salgado. It is impossible to see around all of the corners, but it would seem a legitimate concern of the system that vacation of a longstanding judgment be a jealously guarded exception to cure the freakish case rather than a readily available remedy to cure the mundane.

 Defendant argues that he was denied effective assistance of counsel because a competent attorney familiar with immigration law may have been able to engineer a plea agreement which would not have rendered him deportable; or alternatively, if no such bargain was possible, he could have taken his chances on trial. With regard to the first, it is difficult to see how a more propitious bargain could have been reached. Mr. Salgado was charged with four counts, any one of which would have rendered him deportable. As to the alternative of going to trial, the events of 1964 are far too remote in time to allow for any rational appraisal. The presiding judge is long since deceased. The present whereabouts of the prosecutor are unknown. While Mr. Salgado might be expected to testify that in retrospect, he would have cheerfully taken his chances with the jury had he been aware of his jeopardized status, the trustworthiness of any such post facto statement would be suspect in light of the draconian penalties for drug trafficking then in effect which defendant would have risked had he been convicted of all four counts. The net result is that it is difficult to see how any factual basis could be developed in support of this aspect of the case.

 A further position advanced is that the Court should have counseled Mr. Salgado as to the potential collateral consequences to insure that his plea was voluntary. While that may be the rule in various state courts, counsel cites no authority for that proposition in the federal system and the Court knows of none. *fn1"

 It is also argued that if Mr. Salgado had been represented by counsel at the time of the deportation proceeding, that attorney may have been able to successfully contend for an early application of the rule eventually espoused in Francis v. Immigration & Naturalization Service, 532 F.2d 268, 272-73 (2nd Cir. 1976) (expanding availability of § 212(c) waiver to resident aliens). That postulation in itself is highly speculative, but more to the point, the deportation proceeding post-dated the occurrence which forms the subject matter of this suit; viz., the conviction in this Court.

 Mr. Salgado also contends that his deportation hearing was a farce, and that he was not even aware of the nature of the process, believing instead that the hearing was for the purpose of considering early release from incarceration. Were defendant now charged with being an alien in the United States after deportation under 8 U.S.C. § 1326, this would be a powerful argument which would require an evidentiary hearing. United States v. Mendoza-Lopez, 481 U.S. 828, 107 S. Ct. 2148, 95 L. Ed. 2d 772 (1987). But once again, the validity of the deportation proceeding is not embraced within the subject-matter of this action.

 Then there is the matter of Mr. Salgado's peaceful, productive, and uneventful life in the United States which presumably would have continued indefinitely had he not applied for Social Security benefits. Even assuming that the INS was negligent dozens, or perhaps hundreds, of times over the course of virtually two decades, that negligence accrued to defendant's benefit, and is not the sort of "affirmative misconduct" which would result in estoppel against the government. *fn2" Nor, for that matter, does his successful rehabilitation call into question the validity of the underlying conviction.

 Having said all of that, and considering that no single factor of those arrayed above would warrant granting the relief sought, the Court is left with the unmistakable impression that under the totality of the circumstances, it would be a gross injustice to allow this man, who has by all accounts been a model resident for forty-five years save for a single period of unlawful conduct, to effectively serve a life ...

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