Prior Deportees Get Hearing, 9th Circuit Says

Dealing a setback to the federal government's continued crackdown on illegal immigrants, the 9th U.S. Circuit Court of Appeals on Thursday ruled that authorities cannot immediately deport immigrants with prior deportation orders without giving them a hearing. While the ruling largely pertains to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the decision has greater resonance given the crackdown on illegal immigrants after the Sept. 11 terrorist attacks.

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Dealing a setback to the federal government’s continued crackdown on illegal immigrants, the 9th U.S. Circuit Court of Appeals on Thursday ruled that authorities cannot immediately deport immigrants with prior deportation orders without giving them a hearing. A unanimous three-judge panel overturned a rule in which illegal aliens who were previously deported and found again in this country could summarily be shipped back to their homeland. Instead, they are entitled to go before an immigration judge. “The plain statutory language, supported by the structure of the legislation, provides that an immigration judge must conduct all proceedings for deciding the inadmissibility or deportability of an alien,” Judge Sidney Thomas wrote. “The attorney general’s promulgation of a regulation vesting that authority in immigration officers is in conflict with the statute,” he added. While the ruling largely pertains to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, the decision has greater resonance given the crackdown on illegal immigrants after the Sept. 11 terrorist attacks. Nadine Wettstein, director of legal action for the Washington, D.C.-based American Immigration Law Foundation, said the decision could be viewed as a repudiation of such hard-line tactics. AILF filed an amicus curiae brief in the case. “We think [the ruling] is very significant because it affects thousands of people,” she said. “These cases will again go in front of an immigration judge rather than an untrained deportation officer in the field.” The underlying case involves Raul Morales-Izquierdo, a Mexican citizen who illegally entered the United States in 1990 and played cat-and-mouse with the Immigration and Naturalization Service for about a decade. Years later, Morales married a United States citizen. In 2001, his wife filed an alien relative petition to adjust his status to lawful permanent resident based on their marriage. But when Morales and his wife visited the Spokane, Wash., INS office, they were served with a denial petition and a notice of intent to reinstate Morales’ prior deportation order. Morales then filed a habeas corpus petition and a petition for review directly to the 9th Circuit. Morales’ attorney Robert Pauw, a partner with Seattle’s Gibbs Houston Pauw, said the ruling was welcome early holiday relief for Morales and his family. The family has a 4-year-old daughter, he said. “They are of course very happy and pleased that they will have a chance to stay together as a family,” he said. “It couldn’t come as better news to someone who is looking at being sent out of the United States without explaining his story to an immigration judge.” Pauw added that the decision was a rebuke of the government’s “broad” view of who should be deported. AILF’s Wettstein agreed that the government applies the provision too broadly. “The government’s policy and practice has been to grab up lots of people and quickly reinstate their removal and send them across the border,” said Wettstein. “This would put them in detention and send them back when they had an airplane ready.” “We’re not just talking about criminals. … They were long-term residents with green cards who didn’t realize they had a deportation order,” she said. Isaac Campbell and Song Park litigated the case for the U.S. Department of Justice. The offices were closed at press time and the attorneys could not be immediately reached for comment. The case is Morales-Izquierdo v. Ashcroft, 04 C.D.O.S. 10234.

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