Judge Naomi Reice Buchwald
Zapata was admitted as a lawful permanent resident in 1985. In 1992 he was sentenced to six months in prison after pleading guilty to third-degree attempted criminal possession of a controlled substance. The immigration service sought deportation in May 1992. Following a hearing before an immigration judge, Zapata was deported on July 9, 1992. He later re-entered the country illegally, and in 2011 he was indicted for illegal re-entry. The court denied Zapata’s motion to dismiss the indictment on the ground that the underlying deportation order was invalid. In passing the Illegal Immigration Reform and Immigrant Responsibility Act in 1996, Congress eliminated discretionary relief from deportation under §212(c) of the Immigration and Nationality Act. Moreover, Zapata did not meet §212(c)’s requirement that an alien have been “lawfully domiciled” in the U.S. for seven years of more. Lawfully admitted on Dec. 28, 1985, by the time of his June 1992 deportation hearing, Zapata had not accrued seven consecutive years of residency so as to be eligible for §212(c) relief. The court further deemed without merit his arguments as to why the domicile requirement did not bar collateral attack of the deportation order.
