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At a time when immigration matters and the bold positions the government is taking in the name of national security concern the country, a fight is brewing in a federal court in Houston over a civil suit that involves both of those issues. The suit may show just how far the U.S. Department of Homeland Security can go in failing to comply with fairly routine civil discovery demands in an immigration-related dispute. Two immigration lawyers say the battle is an example of how difficult it is to deal with DHS in immigration litigation. And a fight between DHS and the federal judge presiding over Safety National Casualty Corp., et al. v. U.S. Department of Homeland Security, et al.recently reached the 5th U.S. Circuit Court of Appeals. The suit involves an injunction a Missouri surety company and a Houston bonding agency sought against DHS last year over the alleged breach of millions of dollars worth of immigration delivery bonds. An alien may use an immigration delivery bond to secure his release from the custody of DHS’ Bureau of Immigration and Customs Enforcement, pending the outcome of deportation proceedings in an immigration court. To obtain an immigration delivery bond, an alien must contact a bonding company, which then completes the forms. The surety company and the bonding company are co-obligors. According to the District Court’s Response to Defendant’s Motion for Writ of Mandamus, by issuing an immigration delivery bond, Safety National � acting through its agent, Houston-based AAA Bonding Agency � then “guarantees that it will produce the alien upon demand by DHS. The immigration delivery bond is a contract, akin to a bail bond, between the surety company and DHS, according to the plaintiffs’ complaint in Safety National. “If Safety National fails to produce the alien, it is in breach of the bond and is liable for the bond’s face value and any interest that accrues between the time of the breach and the time of the payment,” according to the district court’s response. An increasing number of disputes have arisen between Safety National and DHS concerning immigration delivery bond breaches, according to the plaintiffs’ complaint. The plaintiffs allege that DHS has demanded the payment of immigration delivery bonds that were not actually breached. They also maintain that DHS refused to comply with requests under the Freedom of Information Act (FOIA) for information about the immigration status of their clients. According to the plaintiffs’ complaint, many of the problems with the immigration delivery bonds are the result of DHS’ bad record-keeping. For example, DHS is supposed to inform bonding companies when a bonded alien voluntarily departs the United States and then cancel the aliens’ immigration delivery bonds. Instead, DHS considers the immigration delivery bonds of aliens who have voluntarily left the country to have been breached and demands payment on a substantial number of bonds it should have canceled, the plaintiffs allege. The plaintiffs claim they paid the bonds on hundreds of such suspect breaches hoping that DHS would return money on the bonds after it discovered they were not breached. The plaintiffs claim they should be credited $3.6 million. In its answer filed last year in U.S. District Judge Keith P. Ellison’s Houston court, DHS denies all of the plaintiffs’ claims. DHS argues in its mandamus that Safety National has an abnormally high percentage of immigration delivery bond breaches and that Safety National’s frequent failure to stay apprised of the whereabouts of bonded aliens constitutes a “national security risk.” After DHS asked the U.S. Department of the Treasury to decertify Safety National as an approved company that can do business with the government, which would mean the plaintiffs cannot issue new immigration delivery bonds, Safety National and AAA Bonding filed the injunction action before Ellison to stop the decertification. In December 2005, Ellison enjoined DHS from refusing to accept Safety National immigration delivery bonds and directed the parties to exchange discovery involving 50 test files, pursuant to an alternative dispute resolution agreement between the parties. While DHS produced some documents, it continues to withhold approximately 2,000 documents, arguing in a motion that those documents either cannot be released under FOIA or that they are protected by the law enforcement privilege. On April 18, Ellison ordered DHS to produce the 50 files in their entirety within 10 days, with the exception of files that are subject to the attorney-client privilege. Instead of producing the files, on April 26 DHS filed a mandamus action against Ellison with the 5th Circuit. In its motion for stay of Ellison’s order pending appellate review, which accompanies the mandamus, DHS asserts that the release of the documents would cause “irreparable harm to the government’s law enforcement interests, as well as to third parties whose identities would be revealed, that would flow from disclosure of DHS’s sensitive law enforcement documents.”
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In a response to the mandamus petition, filed with the 5th Circuit on May 8, Ellison urged the appeals court to deny the mandamus. He also deconstructs each of DHS’ reasons for withholding the documents. Ellison argues that DHS can’t repeatedly use FOIA as a reason not to produce documents. If DHS refuses to release documents to a party under FOIA, 5 U.S.C.A. �552 confers jurisdiction on a district court to order a federal agency to produce records. “Had Congress intended the [FOIA] to apply to judicial discovery proceedings, there would be no need for the provisions giving aggrieved parties a right to redress through the federal district courts,” Ellison writes. Ellison also takes DHS to task for asserting a law enforcement privilege in a civil proceeding. “The law enforcement privilege would nonetheless be inapplicable here, because the privilege is recognized in this circuit only in the context of ongoing criminal investigations, not in civil deportation proceedings like those at issue in this case,” Ellison writes. “The district court has already stated in no uncertain terms that documents identifying specific undercover agents or revealing similar information may be withheld, so long as the government details the reasons for their non-production . . .” Ellison writes. “Together with the traditional privileges applicable in civil discovery, this latitude provides adequate assurance that the prosecution of this suit will not unduly burden the government or endanger national security,” Ellison writes. “To move beyond these protections would be to grant the government carte blanche to avoid the most basic � and fundamental � obligations of a party to civil litigation.” Access Denied Alan Magenheim of Houston’s Magenheim & Associates, who represents AAA Bonding, says his client just wants the suit resolved, but that’s hard to do because of the position DHS is taking during discovery. Magenheim says his client must have access to the DHS files or the case will go nowhere. “For example, what is the present status of some of these individuals who were granted bonds? Were they granted asylum, were they returned to their country of origin, are they awaiting new hearing dates?” Magenheim asks. “We’re not suggesting we know what’s in there. But we’re entitled to find out, because these bonds are contracts,” Magenheim says. “I think Judge Ellison has been extremely patient in dealing with this discovery dispute.” But in a reply brief DHS filed with the 5th Circuit on May 11, the department argues that Ellison’s determination that there is no law-enforcement exception to exempt the files from civil discovery is wrong and that the privilege does exist. The brief also asserts that DHS has a very real interest in keeping the documents secret. “The documents at issue here pertain to aliens who were arrested and taken into custody (hence the need for a bond),” the DHS says in its brief. “Investigations remain open for the vast majority of the aliens whose files are at issue here.” “Information in the alien files may be used to refer violations for prosecution as well as to enforce immigration laws. Disclosure would reveal investigative methods and techniques that are used in criminal law enforcement generally,” DHS writes. “The disclosure of such techniques could reveal to any suspect of an investigation how to evade investigations, how to hide evidence and evade detection, thereby assisting such subjects and potential violators in circumventing the laws.” Steven B. Whitmer, a partner in Chicago’s Lord Bissell & Brook who represents Safety National, declines to comment. Charles “Rocky” Rhodes, a law professor who teaches civil procedure at South Texas College of Law, says Ellison’s discovery rulings seem to be within his discretion. But Rhodes believes it will be interesting to see whether the 5th Circuit allows DHS to withhold the documents because of national security concerns. “It seems the judiciary is really still struggling to find where the balance is going to be between security issues and individual liberties,” Rhodes says. “And this is going to be another front on that battle.” Karen Pennington, a Dallas immigration law solo, says she’s not surprised that the issue is before the 5th Circuit, as DHS has become increasingly difficult to deal with when it comes to immigration delivery bonds. “It’s more common to have bond issues [in an immigration case] than not to. It’s an art to have a bond returned, not a science,” Pennington says of surety and bonding companies actually getting their bond money back after paying DHS. “That’s why you’re seeing a huge mandamus case here.” Pennington also believes the problems with immigration delivery bonds at DHS involve bad record-keeping. “They have no way of showing the files on how they are finding these bond breaches, so they’re going to claim national security, because it would embarrass them, because their record-keeping is so bad,” Pennington says. Kem Toole, a U.S. Department of Justice attorney who represents DHS, disagrees, saying the agency’s record-keeping on immigration delivery bonds has improved since it was created in 2002. She says bonding companies are not accustomed to having a government agency enforce immigration delivery bonds and making them pay. “I can tell you, in the old days, these bonding companies would run up a huge debt. And we’d end up settling with them for a small amount,” Toole says. “And now the files are in great shape, so we have very little litigation risk.” But Lisa Brodyaga, a San Benito attorney with the nonprofit Refugio Del Rio Grande, says immigrants are having problems when they post cash bonds � bonds in which a person puts up his own collateral without the use of a bonding company � to win release from DHS custody. Brodyaga believes DHS administrative problems � such as failing to make a meaningful attempt to notify a bond obligor about a breach � have led to unjust forfeitures of immigrants’ cash bonds that should have been returned. She represents 12 plaintiffs who sued DHS in 2002 because of forfeited cash bonds. That case, Zamora-Garcia, et al. v Moore, et al., is pending in U.S. District Judge Randy Crane’s McAllen court. “Everything is so hard now. Things that used to be routine are now like pulling teeth,” Brodyaga says of DHS. “It’s a change in attitude, and it’s a change in organization. But this business of national security, that to me [means] they don’t want to do the work, so we’ll claim national security.”

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