New York, NY, (May 10, 2012) Agostino Accardo, a 38-year-old lawful permanent resident, returned to the United States today after being wrongfully deported to Italy in December 2009. He has returned as a result of the success of Bretz & Coven, LLP, before the United States Court of Appeals for the Eleventh Circuit and before the Board of Immigration Appeals on remand from the Eleventh Circuit. The federal appellate court held that the Board of Immigration Appeals was wrong to conclude that Mr. Accardo’s 2007 conviction for extortionate extension of credit was a crime of violence, and therefore an aggravated felony. The decision’s citation is Accardo v. U.S. Attorney Gen., 634 F.3d 1333 (11th Cir. 2011).
Pursuant to a guilty plea, Agostino Accardo, was convicted on May 24, 2007, of extortionate extension of credit in the United States District Court, Eastern District of New York under 18 U.S.C. § 892(a). He had never been in trouble with the law before. The Department of Homeland Security (DHS) placed him into removal proceedings after charging him with being removable as an alien convicted of an aggravated felony involving a crime of violence. Mr. Accardo was taken into custody by Immigration and Customs Enforcement (“ICE”) on July 24, 2008.
From the outset, the lawyers of Bretz & Coven, LLP, challenged the grounds for putting Mr. Accardo in removal proceedings based on a careful analysis of the statute under which he was convicted. They argued the statute under which Mr. Accardo was convicted was divisible and that Mr. Accardo was not convicted of an aggravated felony because his conviction did not constitute a crime of violence.
Accordingly, the Bretz & Coven lawyers filed a motion to terminate the removal proceedings in the immigration court in Atlanta, Georgia. The presiding immigration judge, William A. Cassidy, found that Mr. Accardo had not been convicted of a crime of violence because the convicting statute at issue, 18 U.S.C. 892(a), is a divisible statute in that it contains some offenses that would qualify as an aggravated felony and other offenses that would not. Judge Cassidy found that because Mr. Accardo only admitted to threatening to harm a person’s reputation and not making a threat to harm a person or property, he was not convicted of a crime of violence under 18 U.S.C. § 16. He therefore granted the motion to terminate the proceedings in a decision dated September 19, 2008. Moreover, the immigration judge indicated that Mr. Accardo should be released.
However, instead of (1) recognizing the merits of the decision and (2) releasing Agostino Accardo, DHS appealed the decision to the Board of Immigration Appeals (“Board”) and continued his detention. Nine months later, the Board of Immigration Appeals sustained DHS’s appeal and reinstated the removal proceedings in a decision dated June 17, 2009, though it was not based exactly on DHS’s arguments. The Board concluded that 18 U.S.C. § 892(a) was categorically a crime of violence under both 18 U.S.C. § 16(a) and (b), and it remanded the case to the immigration judge. On remand, Judge Cassidy ordered Mr. Accardo removed to Italy on July 9, 2009, despite the fact he had ruled differently the first time the case was before him in 2008. Mr. Accardo’s subsequent appeal to the Board of Immigration Appeals, was, as expected, dismissed on October 20, 2009. This led to the filing by Bretz & Coven of a Petition for Review and Stay of Removal with the United States Court of Appeals for Eleventh Circuit on October 27, 2009. The Stay of Removal request was denied by the Eleventh Circuit in a decision dated December 8, 2009. Within days of that decision, Agostino Accardo was deported to Italy after spending 17 months in ICE custody.
However, the lawyers of Bretz & Coven, LLP, persevered in litigating his Petition for Review before the United States Court of Appeals for Eleventh Circuit. Their diligence led to the March 10, 2011, decision that granted Mr. Accardo’s Petition for Review and remanded the matter to Board of Immigration Appeals. The Eleventh Circuit held that the Board of Immigration Appeals was wrong to conclude that Mr. Accardo’s 2007 conviction for extortionate extension of credit was a crime of violence, and therefore an aggravated felony. The case was remanded to the Board of Immigration Appeals.
In its brief to the Board, the Department of Homeland Security argued that Mr. Accardo had been convicted of an aggravated felony despite the Eleventh Circuit’s decision. However, in a decision dated March 15, 2012, the Board affirmed Judge Cassidy’s original September 19, 2008, decision in this matter. The Board vacated its prior decision of June 17, 2009, and dismissed DHS’s appeal. Furthermore, it terminated the removal proceedings of Agostino Accardo. The Board’s decision of March 15, 2012, cleared the way for Agostino Accardo’s return to the United States today.
Kerry Bretz, a senior partner at Bretz & Coven, said, “While this is a happy ending for Agostino Accardo, the cost in human terms for him was terrible. He unnecessarily lost 17 months of his life in ICE detention and another 29 months of his life outside the United States. He was physically separated all those many months from the family members with whom he came to the United States and with whom he had grown up in the U.S. since the age of less than two years old.”
Kerry Bretz said, “It is worth taking note of the cost to the government and taxpayers for this removal case.” According to the Detention Watch Network, its website reports that in 2009, the cost of detaining an immigrant was $122 per day. This suggests the cost to taxpayers for Mr. Accardo’s 17 months of detention was around $60,000. If one adds to this figure the material and labor costs of government attorneys, judges, law clerks, assistants and other support staff associated with the 44 months of litigation in Immigration Court, the Board of Immigration Appeals, and the United States Court of Appeals for the Eleventh Circuit, the aggregate cost clearly adds up to at least $200,000, and probably much higher. In the final analysis, the removal case brought against Agostino Accardo was an immense waste of government resources.”
Kerry Bretz, said, “My law office coordinated Mr. Accardo’s return with ICE’s new Public Advocate.” ICE Public Advocate was instituted only recently in February 2012, in response to the National Immigration Project of the National Lawyers Guild et al.’s successful challenge to the accuracy of a statement made by the Office of the Solicitor General in a brief addressed to the U.S. Supreme Court in Nken v. Holder, 556 U.S. 418 (2009) that “by policy and practice, the government accords aliens removed pending judicial review but prevailed before the courts effective relief, by . . . facilitating the aliens’ return to the United States.” See National Immigration Project of the National Lawyers Guild v. U.S. Department of Homeland Security, 2012 WL 375515 (SDNY Feb. 7, 2012). The plaintiffs in National Immigration Project argued that since Nken, they had encountered significant impediments in returning to the U.S. after prevailing in federal court, despite the Solicitor General’s statement in Nken.
Kerry Bretz said, “Mr. Accardo encountered resistance at the U.S. Embassy in Poland in issuing him a boarding foil required for boarding his airplane to New York. He was very nervous because he was traveling with his U.S. citizen wife and two U.S. citizen babies and had approximately 70 people waiting for him at JFK Airport. However, only after my law office vigorously intervened with several emails and phone calls to the ICE Public Advocate and the Assistant Chief Counsel in Atlanta, Mr. Accardo was finally able to get a travel document, two days prior to departure.”
Finally, Kerry Bretz said, “In charging Mr. Accardo with being removable from the U.S., and detaining and deporting him, some federal government agencies made serious errors in judgment and legal analysis. I find it ironic and maybe even spiteful that after those errors have been contested and remedied through the appellate process, he encountered a bureaucratic hassle at the U.S. Embassy and has to pay his own plane fare in seeking to return home to the United States.”
New York immigration lawyer Kerry Bretz is listed on superlawyers.com. Kerry Bretz was selected to New York Super Lawyers 2011 – Metro Edition.
Bretz & Coven, LLP is a full-service immigration law firm in New York City that is AV(R) Preeminent(TM) Peer Review Rated by Martindale-Hubbell(R). The firm’s attorneys serve immigrants who seek the privileges and benefits of U.S. visitation and lawful permanent residence. The firm also defends immigrants who are in removal and deportation proceedings.
“Individuals, families, and corporations turn to us when no one else will take the case,” said Kerry William Bretz, a senior partner at Bretz & Coven. “The firm has a long and well documented history of taking on difficult challenges on behalf of immigrants in federal courts and changing, often for the better, the way immigration law is interpreted.”
The firm’s staff speaks more than 20 languages and its attorneys are admitted to practice law in New York State, New Jersey, Connecticut, Florida, the federal district courts of those states, many U.S. Courts of Appeals throughout the country, and the U.S. Supreme Court.