9th Circuit Probes Immigration Tactics

(CN) - Two 9th Circuit panels lambasted immigration officials for their handling of two cases involving two people - including one U.S. citizen - who were facing deportation.

Odilia de Jesus Velasquez-Escovar asked the 9th Circuit in Pasadena to overturn the Board of Immigration Appeals' refusal to reopen in absentia removal proceedings. Velasquez-Escovar - who entered the country illegally from Guatemala in 1990 and now has two children that are native-born U.S. citizens - said an error by immigration officials resulted in notice-to-appear letters being sent to her old address.

The woman did not receive the notices, and the board ordered her removed from the United States in absentia. She learned of the letters six months later when she was detained by ICE agents.

Velasquez-Escovar filed to reopen the removal order, claiming that she should not lose her right to a hearing just because immigration officials wrote down her former address on a ticket she received two years earlier. The Justice Department said the woman should have noticed the error on the ticket at some point and brought it to the board's attention.

On Monday, Circuit Judge Richard Tallman agreed that the Board of Immigration Appeals abused its discretion by denying Velasquez-Escovar's request to reopen her case, since she was essentially deprived of notice that she about to be thrown out of the United States.

"Put simply, aliens are entitled to notice unless they fail to give a current address to the government or fail to let the government know when they move," Tallman wrote. "Here, Velasquez did neither. She claims that she gave the Corpus Christi-based immigration officials her current address and that she never moved. Nothing in the record refutes either claim. Accordingly, the statutes entitled her to notice."

Tallman also noted that while Velasquez-Escovar should have seen that the notice to appear had her old address, nothing on the form itself warned her that correcting the mistake was her problem. And he rejected calls by the BIA to view the woman's carelessness as a kind of perjury.

"The BIA did not rely on this analogy, so we cannot either. Nor would we if we could. The analogy does not work because deception and carelessness are two different things," Tallman wrote.

In her dissent, Judge Johnnie Rawlinson said her colleagues ignored Velasquez-Escovar's "obligation to provide her current address to the agency in writing, and absolved her of the obligation to provide an address in writing upon service of the notice to appear."

Rawlinson added: "These requirements are fatal to petitioner's case."

In the second case, a panel in San Francisco reversed a federal court's dismissal of claims by a man who said ICE agents placed immigration holds on him that kept him from bailing out of jail.

Bernardo Mendia claims that after he was arrested for "various alleged financial crimes" and a state court granted bail, ICE agents came to interview him in jail. Mendia says he told them he is a U.S. citizen and offered his social security and passport as proof - and then exercised his Fifth Amendment right to remain silent.

Mendia says that one of the agents became irate and said, "Oh, you don't want to talk to me? We'll see if you want to talk when we're deporting your ass." The ICE agents lodged an immigration detainer against Mendia the same day stating the man was a Mexican national being investigated for possible deportation.

The immigration hold meant no bail bondsman could help him, and Mendia didn't have the money to post bail himself. And even after the trial court granted Mendia release on his own recognizance, Mendia says he was afraid to leave jail because he thought ICE would just arrest him again and deport him.

Mendia finally left jail nearly two years after his arrest, when he discovered that ICE had canceled the immigration hold 18 months earlier. He sued the two ICE agents for various constitutional and tort claims, which the trial court dismissed for lack of standing.

But Circuit Judge Paul Watford, writing for the three-judge panel in San Francisco, said Monday that Mendia had easily shown both the injury and redressability necessary to establish Article III standing and reversed the trial court's dismissal.

"If we take Mendia's well-pleaded allegations as true, as we must on this facial attack, he spent two years in pretrial detention that he should not have endured," Watford wrote. "He thus claims as his injury loss of liberty, which satisfies Article III because it's an injury that affects him in a personal and individual way.' In fact, it's difficult to imagine an injury that could affect one more personally and individually than a deprivation of one's liberty. That's presumably why no one questions the existence of Article III injury when a civil rights plaintiff sues on the theory that the actions of the defendants (say, the police) resulted in wrongful confinement on criminal charges, whether before or after trial. And it's clear that the relief Mendia seeks - an award of monetary damages - would redress the injury he has alleged." (Parentheses in opinion.)

As to the third requirement of causation, Watford rejected the government's claim that ICE didn't cause his injury because ICE never took him into custody."Contrary to the ICE agents' argument, Mendia's causation theory - that the detainer led the bail bondsmen to refuse to do business with him - isn't facially implausible," Watford wrote. "When ICE announces that it 'seeks custody of an alien for the purpose of arresting and removing the alien,' there's certainly a higher risk that, if released on bail from state custody, the alien might not be around to make his court dates. Whether that heightened risk was enough to lead bail bondsmen to refuse Mendia's business altogether, rather than simply demand an increased fee, strikes us as the sort of factual issue that can't be resolved in the context of a facial attack on the sufficiency of a complaint's allegations."

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