Immigration Judge Sylvia Arellano Ignores Ninth Circuit Precedent

Today, Monday, October 22, Esteban Tiznado was supposed to be attending his hearing in an immigration court in Florence, Arizona.  And his pro bono attorney David Ouimette was supposed to be presenting evidence of his client's U.S. citizenship.  But it's not going to happen.

In April, 2012, Esteban Tiznado, a U.S. citizen, at least according to an Arizona jury, was once again placed in removal proceedings.  Since then he's been locked up in the portion of the Pinal County Jail rented out to Immigration and Customs Enforcement (ICE) after an initial offer to release him on bond during the proceedings was made by ICE.  Tiznado's family has no funds for this and ICE refused Ouimette's request that the government release Tiznado on his own recognizance.  A hearing scheduled for July 16, 2012 never happened, and subsequent hearings also were cancelled.

As the screenshot above indicates, Tiznado is losing hope and thinking that the only escape from his purgatory might be another ICE bus ride to Mexico, from where he will return.  The bar against Double Jeopardy means he cannot be charged with Illegal Reentry but it also means constantly looking over his shoulder in fear of being held as is he right now.  (For the details of Tiznado's case, including evidence of his U.S. citizenship, please go here.)

Of the second cancelled hearing:
"I show up in Florence on August 21" said David Ouimette, Tiznado's pro bono attorney, and [Sylvia Arellano, the recently hired attorney working for the Executive Office of Immigration Review], tells me, "We scheduled two things at the same time again and I don't have time for this, and so we're going to postpone it," supposedly to October 22, today.  This time it was Ouimette as well who was being wrongfully detained by Arellano, whose failure to notify him in advance of this conflict meant a long commutes from Phoenix, a waste of most of the day. 

I.  Arellano v. Ninth Circuit June 10, 2012
Arellano's handling of Tiznado's citizenship rights is as adept as her clock management skills.  During the master calendar hearing she joined forces with those immigration judges whom an American Immigration Council Legal Action Center advisory points out are blatantly ignoring the Ninth Circuit mandate requiring ICE to hand over to respondents their so-call "alien" files.

In Dent v. Holder, 627 F.3d 365 (9th Cir. 2010), the opinion noted that the government had been withholding documents that were consistent with Dent's assertion of his U.S. citizenship.  The same is true for Tiznado's case. (I received portions of this from a FOIA response and it shows that the government had various Certificados de Inexistencia for Jesus Tiznado's birth, thus falsifying the government's assertion that Jesus was born in Mexico and not, as the state of Arizona states, Topawa, Arizona.)

The analysis in Dent v. Holder observes that the Constitution embodies the intuition that people have a right to evidence that will be used against them, and that the immigration court rulings that ignore this cannot be shielded by a law that would normally preclude review of their decisions:

 The law does not, however, interpret this rule absurdly, so that 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 opinion in Dent, in which the word "Kafkaesque" appears, notes:

 in the critical proceedings before the IJ neither the IJ nor the BIA nor Dent was furnished with the relevant documents. We have no idea why not. The only justification the government offers for why we all should have been left rooting around in the dark is in its 28(j) letter, arguing that the law did not require them to furnish the A-file. The government offers no reason why the A-file should not be furnished.

So you'd think that during the master calendar hearing, when Ouimette requested the entire contents of Tiznado's file, that Arellano would order exactly this.  Here's what happened instead:

Ouimette:   July 16 at 1 oclock would be acceptable your honor.

Arellano:   I would like for you to be personally present please.

Ouimette:  Yes.  With respect to the respondent's  A file, we've made a request for the file under the Dent v. Holder case and the counsel's response was that we needed to make a Freedom of Information Act request, which in my reading is clearly contrary to Dent v. Holder.  So we'd ask the court's assistance in getting access to the a file.

Arellano:  Mr. Morwood?

Dion Morwood [DHS attorney]:  Your honor, we have received the respondent counsel's Dent request and in reviewing that we note that, in regard to specific documents we will and I believe we have complied with that request. However, it appears that he's also requested the entire A file. And with regard to that request I would note the following. It is the Department's position that neither the respondent nor his counsel is entitled to full access to the A file because there is certain confidential, classified information that would not be discoverable such as attorney client or attorney work product documents, etc. However, the majority of the A file is available to the respondent but that's done through a FOIA request.

That's the proper method. there is a method for respondent's counsel that respondent himself will need to sign under penalty of perjury indicating that his file may be released to counsel. In addition to that he would need to submit a hearing notice stating that the next hearing date will be on the 16^th of July and specifically in the request indicate that the respondent is detained in the Florence Detention Center.

Arellano:  Anything additional Mr. Ouimette.

Ouimette:  Yes, I believe that suggested procedure is clearly contrary to the Dent case, which says that a FOIA request is not necessary  to get access to the file. And that's a case which is precisely similar to this one. It's a removal case.

Arellano:  I'm familiar with it sir. My ruling is that you will need to make a FOIA request.  Anything else sir?

Ouimette:  I would just note my objection on the record and make a request with respect to the filing of written materials prior to the hearing, since I still don't have access to the A file I request that I be allowed to do that one week prior to the hearing.

Arellano:  Um, that's a little tight for my purposes. But thank you for reminding me the document due date would be July 5^th for both parties.

In the meantime, Ouimette says, the DHS did not release the entire file but did eventually release to him some of its supposed evidence that Tiznado's father is not a U.S. citizen.  According to Ouimette  "There were several transcripts of birth certificates of numerous siblings, some stating Jesus’ birth in Mexico, and some stating his birth in Arizona."  In light of the extensive other documentation, these transcripts--no original were provided--seem much less relevant than the numerous records from the Mexican government at different time periods directly stating Jesus Tiznado was NOT registered anywhere as born in Mexico.

Moreover, nothing at all was turned over that would support an earlier government contention that other documents had been fraudulently altered.

October 22, 2012
Ouimette is confident of his client's case and wants a hearing so Tiznado can be released.  However, today all Tiznado will be facing another grim day of mistreatment at the hands of a guard who, Tiznado informs me, verbally abuses and literally spits on U.S. residents from Mexico who are locked up there, himself included.

In the meantime, Ouimette received a notice from the EOIR in the mail stating without explanation that Tiznado's hearing was rescheduled for December 11, and a new attorney assigned, immigration judge Quynh Vu Bain based in the EOIR's Falls Church headquarters.  The EOIR spokesperson tells me that an immigration judge in Florence retired and that may explain the docket shuffling, but Tiznado says other folks have not had their hearings postponed like this.  Moreover, a retirement is something that the EOIR would know in advance. Since the EOIR cannot manage to schedule a hearing, perhaps the EOIR should put up the bond.

II.  Unconstitutional Delays?
I made a request of the EOIR last week for information about why the case was being reassigned.  A spokesperson looked up up the case and said the database provided no entries that would explain the rescheduling. [UPDATE 5:30 p.m.--Here's what she sent me today from the EOIR database on Tiznado's hearings:

In terms of type of hearings, this case appears to have a master reset scheduled for 7/16/2012; an individual detainee hearing scheduled for 8/21/12; an individual hearing and a master reset scheduled for 10/22/12; and finally an individual hearing scheduled for 12/11/12. 

To be clear, none of these hearings occurred, and there is no explanation for how a master hearig could be adjourned to an individual hearing and then to a master hearing and then to an individual hearing with no motions or reasons given.

The spokesperson appears to notice these discrepancies as well:

Given that you’ve worked with Mr. Tiznado-Reyna’s attorney, before he may be able to shed more light on the specific reasons for these changes.

But Ouimette in our interview used words like "confusing" and "cockamanie" and couldn't account for this.

Tiznado has asked that I inform people of his plight; his mother is elderly and extremely ill--in fact this was a major motive for him to reenter last year and once again face removal proceedings.  Tiznado is shocked that he would have to stay locked up for nine months before a hearing.

It's true that Tiznado is receiving more legal assistance than if he were locked up in an area that lacked the vigilant support of folks at the Florence Project and its network of pro bono attorneys, including Ouimette, one in a small band of attorneys trying to shore up the rule of law against a flood of abuses as best they can.  Clearly an assigned government attorney who had the same extensive experience and resources in immigration courts as the DHS attorney (this is Ouimette's first case in an immigration court since several he handled in the 1980s), including the full contents of the DHS file, would substantially alter the playing field.

It would indeed appear that the logic of Zadyvas v. Davis might apply: if it is unconstitutional to keep people locked up  indefinitely, or just more than six months, if they concede removability, then it would seem to be unconstitutional to hold someone indefinitely who is amenable to a hearing and is prevented from this only because the government itself cannot be bothered  to show up. 

A habeas motion?  Right, well, like Dent, a habeas motion was indeed filed on Tiznado's behalf.  A gaping Constitutional black hole is now apparent: it is taking federal judges months and even a year to decide on these habeas cases.   A scary scenario is unfolding whereby if the legislative and administrative branches pursue actions that are violating our rights on a sufficiently massive scale by keeping us locked up without a hearing, then waiting in line for a court date to appeal this turns into another iteration of the harm that is being challenged by that habeas appeal.

The only way to crack this through the courts would appear to be some form of queue jumping to an appellate court on the grounds that failure to rule within six months on a well-founded habeas claim by someone who is locked up in an immigration jail could be construed as an effective denial of rights established under Zadyvas v. Davis (2005), although even if a few lucky individuals miraculously prevailed, the next cohort would presumably clog the appellate courts as well. 

Tiznado is being held under a law that requires mandatory detention of criminal aliens, except that he wants to prove he is a U.S. citizen.   As far as being a flight risk: the only person who has failed to attend his hearings in the immigration courts has been Arellano.  Esteban Tiznado never made a single decision in his life that resulted in someone being wrongfully locked up for a minute.


Correction: An earlier version stated Ouimette had driven twice to Florence.  Ouimette was notified in advance that the July 16 hearing was cancelled, but was not alerted to the cancellation of the August 21 hearing.