Monday, April 3, 2017

Tenth Circuit Orders Immigrant in Turlock, California Deported in Absentia, No Proof of Service

First Inn of Colorado, where ICE in 2007 sent Notice of Detainer for U.S. Citizen Peter Guzman, who was in the custody of the Los Angeles County Jail and had never been to the inn 

I was just browsing through recent Tenth Circuit opinions this morning and bumped into an order of March 30, 2017 deporting a Mr. Prabhjot Singh because he could not meet his burden of proving that the Executive Office of Immigration Review (EOIR) did not through regular mail send him a notice of his hearing.

For most people reading this, the order seems innocuous enough.  A guy from India is apprehended in March, 2014 in Arizona by a border patrol agent for entering illegally, blows off his notice to appear in immigration court, and then claims he never received it.  But a closer review raises questions not just about his case but the larger due process problems of relying on self-serving boilerplate statements of protocol by EOIR staff for deporting people whose affidavits offer evidence to the contrary.

Singh was first detained in Arizona and then transferred to Utah, where, 15 days after his apprehension, he was released on a  $7,500 bond after giving the Department of Homeland Security (DHS) a new address in Turlock, California.  On August 7, 2014, Singh is deported by an unnamed Salt Lake City immigration judge in absentia.  The Board of Immigration Appeals denies his October appeal to reopen the case, including his sworn affidavit stating he never received the Notice to Appear.

The Tenth Circuit affirms:
The alien bears the “burden of demonstrating the claimed lack of notice.” Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004)“The burden is not alight one.” Id. “Evidence that the notice of hearing was mailed to the alien [at his most recent address] raises a presumption of receipt.” Thongphilack v. Gonzales, 506 F.3d 1207, 1209 (10th Cir. 2007); see also Gurung, 371 F.3d at 721-22 (“A notice to appear is sufficient, both for due process and statutory purposes, if it is sent by regular mail to an alien’s contact address of record”; “the alien must overcome the presumption of due receipt raised by the evidence of mailing”). “The alien must support his motion to reopen with affidavits or other evidentiary materials in order to overcome the presumption of receipt.” Thongphilack, 506 F.3d at 1210. Deliberate ignorance is most convenient and most difficult to disprove. The presumption is, therefore, most appropriate. 
In his affidavit, Singh admits he gave the government the Turlock, California, address upon his release from custody on March 25, 2014. He also admits he resided at that address upon his release. Nevertheless, in the same affidavit, he alleges he did not receive notice of the August 7, 2014 hearing. But, as the BIA aptly said, such self-serving, conclusory statements are insufficient. Thongphilack, 506 F.3d at 1210; see also Gurung, 371 F.3d at 722; Sajidi v. Holder, 438 F. App’x 693, 695 (10th Cir. 2011) (unpublished)
I'm posting this because a few details prompt some head-scratching.  First, someone in the DHS and possibly the IJ -- the order does not say if there was a bond hearing -- in Salt Lake City, Utah trusted Mr. Singh enough to release him on bond.  This was before the November, 2014 implementation of prosecutorial discretion.  And even with this, as a recently arriving alien, Singh would be in the second priority group targeted for removal. (The Tenth Circuit order does not review the substantive merits of Singh's claim to remain, but these facts are consistent with him passing a credible fear interview as part of an asylum claim.)  If he's credible enough for bond and DHS is at best not appealing, why is the judiciary essentially second-guessing the credibility findings of DHS and asserting Singh is not credible enough to believe about receiving mail?  (The fact that he is affirmatively trying to make his case in immigration court and not fleeing is itself evidence of his good faith testimony that the Tenth Circuit simply ignores.)

Second,  on March 25, 2014 the Department of Homeland Security (DHS) had a new address for Mr. Singh in Turlock, California.  Assuming he was pro se, why didn't the DHS, which granted bond, file a motion to change venue to California?  Even if the notice of the August 7 hearing were received, it would have required Mr. Singh to return to Utah.

Third, what crazy prejudice on the part of our judges allows the government to falsely imprison or kidnap people -- capture and send them away regardless of potentially legitimate asylum claims -- for no reason other than that the person about to lose her liberty cannot prove a negative, i.e., the absence of a piece of mail?  If proof of service is required for Colorado Small Claims courts for damages of up to $7,500, then how can the Tenth Circuit find any due process in deporting people without the government bothering to show the U.S. Post Office certified delivery?  (Indeed, this is the position of the Ninth Circuit, as characterized in a 2008 BIA decision published on this point.)

Fourth, Executive Office of Immigration Review (EOIR) administrators make all sorts of mistakes all the time, including with their own address (!), and the same for ICE, including not only deporting U.S. citizens but sending U.S citizen Peter Guzman's detainer to a Colorado inn in the Tenth Circuit, even though he was in the custody of the Los Angeles County Jail and had never been to Colorado.  If the government cannot afford to pay for Certified Mail to ensure Mr. Singh has his day in (fake) immigration court, it cannot afford to deport Mr. Singh.

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