Kafka Revisited: Ninth Circuit Decision Protects Due Process Rights for Noncitizens

Written by on November 30, 2010 in Immigration Courts with 4 Comments
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The basic tenet that you can’t be sued without knowing the charges against you and having a meaningful opportunity to defend yourself is a cornerstone of the U.S. judicial system. This concept of fundamental fairness ensures that people in courtrooms across the country have access to a discovery process that enables them to see the other side’s evidence. Plaintiffs and prosecutors are routinely required to produce documents that will be used to prove their cases so that defendants have a chance to respond. For too long, however, these kinds of procedures and protections have been denied to noncitizens in immigration court.

Finally, the Ninth Circuit Court of Appeals has handed down a path-forging decision in Dent v. Holder that could put an end to this denial of due process. In its ruling, the court indicated that Alien (or “A”) files in the government’s possession should be provided as a matter of course to all noncitizens in removal proceedings. An A-file is a noncitizen’s case file which contains all records of his interactions with the government during the U.S. immigration and inspection process—records that could, for instance, support a claim to citizenship. The Ninth Circuit flatly rejected the government’s argument that, under existing regulations, Dent could obtain his A-file only by submitting a written request under the Freedom of Information Act (FOIA).

Given that the processing of FOIA requests often takes a long time and that continuances in removal hearings are discretionary, the Court noted that a respondent could be removed before receiving his A-file. Such an unconstitutional result, according to the Ninth Circuit, “would unreasonably impute to Congress and the agency a Kafkaesque sense of humor about aliens’ rights.” The Court’s allusion to Kafka’s The Trial—the story of a man who is arrested by an anonymous authority for an unknown crime—is sadly a reality for many immigrants, but the Court’s decision to grant access to A-files during removal proceedings represents significant progress toward protecting noncitizens’ due process rights.

Born in Honduras, Dent, who represented himself in his removal proceedings, argued that he had been adopted as a child by a U.S. citizen and was therefore a U.S. citizen himself. The Immigration Judge granted Dent several continuances to produce his mother’s birth certificate, but ultimately ordered him removed when he failed to do so. Although the Board of Immigration Appeals (BIA) remanded the case on technical grounds, Dent still did not prevail.

Due to a lack of proper notice, Dent did not learn of the Board’s decision until three years later, when he was indicted for unlawful reentry into the United States. The indictment, however, was dismissed after the government conceded inadequate notice, and Dent’s counsel—AILA President David Leopold—petitioned the BIA to rescind and reissue the earlier decision so that he could file a timely petition for review with the Ninth Circuit. During the aborted criminal prosecution, Dent’s counsel became aware that his client’s A-file, which had been in the exclusive control of the government, contained documents that might have helped to substantiate his claim for U.S. citizenship. Before the Ninth Circuit, Dent, who was represented by Professor Anne Traum and her students at the William S. Boyd School of Law, argued that the government’s failure to provide him with the documents in his A-file violated his due process rights. The Court agreed.

The Ninth Circuit relied on Section 240(c)(2)(b) of the Immigration and Nationality Act, which guarantees that a noncitizen shall have access to his entry document and any other non-confidential records and documents pertaining to his admission or presence in the United States. Concluding that Dent was entitled to his A-file under this “mandatory access law,” the Court transferred Dent’s case to a federal district court in Arizona for a new hearing on his citizenship claim. While noting that Dent had requested assistance from the BIA in obtaining records confirming his U.S. citizenship, the Ninth Circuit strongly implied that such a request was not a prerequisite for obtaining an A-file.

While the Ninth Circuit’s decision should be commended, Dent’s experience illustrates certain other Kafkaesque realities that noncitizens in removal proceedings regularly confront. Like Dent, most of these individuals are forced to represent themselves because the government does not appoint counsel for them. Without lawyers, they face the daunting and often insurmountable task of navigating a complicated maze of statutes, regulations, court decisions, and procedural rules reminiscent of The Trial, one of Kafka’s seminal works. Given the high stakes in immigration cases, we need to ensure that noncitizens have more due process rights than Kafka’s protagonist.

Photo by Albert.ag.

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