“Sometimes the biggest gifts,” my mother would tell me, “arrive in the smallest packages.”
This is true not just in day-to-day life, but also in immigration cases.
Recently, the Ninth Circuit Court of Appeals provided such a gift for immigrants fighting deportation and removal from the United States.
Discovery In Immigration Court Proceedings
In Dent v. Holder, the Ninth Circuit ruled that a person in deportation proceedings has a right to receive a copy of his administrative file.
The administrative file, known as the A-file, typically contains all of an immigrant’s official materials, such as naturalization certificates; various forms and attachments (e.g., photographs); immigration applications and petitions; investigations; reports; correspondence; and memoranda.
Lawyers who practice other types of law would say, “So what?” They would add the the A-file is just discovery.
In their world, “discovery,” the process of obtaining information already in the other lawyer’s possession is routine. Even in the toughest criminal law cases.
In their world, this is part of our constitutional heritage. It’s called due process.
But as I often tell non-immigration attorneys trying to handle deportation and removal defense, many aspects of immigration court proceedings resemble a kangaroo court. Discovery from the government is one of these aspects.
The government is more than willing to serve copies of criminal convictions and arrests, as well as other types of negative evidence. But evidence which is positive for an immigrant? That is, and has been, another story.
Due Process Counts – Even At Deportation And Removal Hearings
In Sazar Dent v. Holder, the case centered on whether Cesar Augusto Jimenez-Mendez had been adopted by a U.S. citizen. Born in Honduras, he was brought to the United States as a child by an American woman. She later adopted him.
At his deportation hearing, he asserted U.S. citizenship by virtue of his adoption. The government countered he could not prove his adoptive mother was a U.S. citizen by birth.
The immigration judge agreed with the government. On appeal, the Board of Immigration Appeals agreed with the immigration judge.
He was never served with a copy of the BIA’s decision or final deportation order.
Several years later, he was again picked up by immigration officials. The government brought criminal charges against him for re-entering after having been deported. Since he did not know about his deportation, his criminal case was dropped.
He was sent back to immigration court to re-start his deportation case again, this time so he could be officially removed back to Honduras.
However, during the criminal case, he had learned the government had a complete copy of his A-file. The file included information about his adoptive mother’s citizenship status.
The file contained the naturalization application submitted, on his behalf, by his mother in 1982 and a naturalization petition he filed in 1986.
The government had never given him a copy of these documents. The government had never provided copies to the immigration judge or the Board of Immigration Appeals.
The Ninth Circuit was not amused.
“Injustice may be done if the government successfully shields its documents from a person who ought to have access to them, particularly when the documents might change the result of the proceedings.”
The New Discovery Rules
To a casual observer, the Ninth Circuit’s decision may not seem like a major legal event. Yet, for immigrants, the opportunity to obtain their A-file, while their cases are still pending, could become a new weapon in their fight against deportation and removal.
Prior to the Ninth Circuit decision, the only option available was to file a Freedom of Information Act (FOIA) request.
Over the years, the main problem with the FOIA process is timing. Even As a San Bernardino immigration lawyer, I am not given any guarantees how long it will take to receive a client’s records via a FOIA request. It could take six months. It could take two years. Or longer.
Given the urgency of defending against deportation, this drawn-out process is often not much help.
In its’ decision, the Ninth Circuit addressed these limitations.
The government stuck to its usual position.
In the government’s view, it was not required to directly provide A-file information. Under existing law, the government stressed immigrants in removal proceedings were required to utilize the FOIA process to obtain copies of their immigration files.
On the contrary, the Ninth Circuit noted the FOIA procedures cited by the government did not pertain to deportation hearings.
If the procedures cited by the government covered removal proceedings, the Ninth Circuit said, “a serious due process problem would arise.”
FOIA requests take a long time to process. Immigration judges do not like to prolong cases simply to allow time to get records via the FOIA process. As a result, many immigrants in removal cases have been unable to get needed evidence in time to fight their cases.
Hence, the Ninth Circuit emphasized, “It would indeed be unconstitutional if the law entitled an alien in removal proceedings to his A-file, but denied him access to it until it was too late to use it.”
This is not small news.
For immigrants facing deportation, this is a huge victory.
By Carlos Batara, Immigration Law, Policy, And Politics