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Court Holds Access to Government Files Essential in Immigration Proceedings

In a very important 9th Circuit Court of Appeals decision, Dent v. Holder, No. 09-71987, November 9, 2010, the Court held that Mr. Dent was entitled to his immigration files in order to have a full and fair hearing under the Due Process Clause of the 5th Amendment to the U.S. Constitution. Mr. Dent represented himself in an Immigration Court Proceedings. He was charged with being deportable because of an aggravated felony. However, he alleged that he had been adopted by a U.S. Citizen when he was eleven years old. The Immigration Judge gave him opportunities to produce his adoption papers and his adoptive mother’s U.S. citizenship status papers. Ms. Dent was born in 1904 when birth records were not kept, and she died while on an annual trip to Honduras from where she had originally met Mr. Dent and decided to adopt him. Mr. Dent claimed his adopted mother’s papers were in the government files because she had to present them in order to bring him to the U.S. Unbeknownst to Mr. Dent, for years there was a government file never turned over to him that contained his mother’s and his applications for naturalization. In what looks like an abhorrent set of circumstances, the government may have denied the mother’s naturalization 27 years after she filed it and long after the Immigration Judge denied his case and he appealed. The Court was concerned about the authenticity of the adjudication of the naturalization applications.

The Court held that Mr. Dent was entitled to copies of his A files so that he could challenge the deportation charges against him, particularly since he claimed to be a naturalized U.S. citizen. (Immigration application files are often referred to as “A files” because each immigrant is assigned a number starting with A followed by several digits.) The Court stated:

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. That would unreasonably impute to Congress and the agency a Kafkaesque sense of humor about aliens’ rights. Prejudice here is plain, because the A-file, when it is fully examined and this case adjudicated on all the facts, may show that Dent is a naturalized citizen of the United States.

The Court acknowledged the difficulties people before the Immigration Courts have when they are unrepresented and when they try to navigate the complexities of immigration law by themselves. The Court held that individuals in removal proceedings must be given a copy of their files to meet the burden of proof in removal proceedings and that they should not have to wait for the results of a Freedom of Information Act Request (FOIA).

Those of us who frequently file FOIA requests for our clients know that it can take months if not a year or more to obtain their files. Even then we often receive heavily redacted files. The Court acknowledged that a person could be deported during the time it takes to get a response to a FOIA request. The Court held that it is by statute that individuals before the Immigration Courts are mandated to have access to any records or documents pertaining to a person’s entry or admission into the U.S. But it is by regulation that one files a FOIA request for “records” not necessarily having to do with removal proceedings. Because of the time it can take to get a FOIA response, the Court acknowledged that a person’s Due Process rights could be violated where the statute mandates access to the file.

This case has huge implications for immigration practitioners. Although there is a process to get FOIA requests expedited in removal proceedings, the fact is the file is heavily redacted and often not timely to meet Court hearings or to plan strategy. Moreover, this case highlights two issues I have discussed in earlier posts. One concerns the extra problems created by the lack of counsel. As I noted in my post on October 29, 2010, NPR Highlights Role of Private Prisons Behind Arizona’s SB1070, the Executive Office of Immigration Review (EOIR) which runs the Immigration Courts estimates that 60% of individuals before the Courts are unrepresented. This case also highlights the scenarios I mentioned in my November 9, 2010 post on U.S. Citizen Documentation Problems Stem from Immigration Enforcement When the government can hide the ball by keeping information from immigrants and U.S. citizens in court, justice is not served, especially where the ultimate penalty can be banishment from the U.S. and possibly death abroad.