order of suppression in van nuys raids - ij travieso (los angeles imm. ct, june 18, 2009)

8/14/2019 Order of Suppression in Van Nuys Raids - IJ Travieso (Los Angeles Imm. Ct, June 18, 2009)

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File:In the Matter of:

UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURTLOS ANGELES, CALIFORNIA.

)))) IN REMOVAL PROCEEDINGS))

Respondent. )

CHARGE: Section 2 12(a)(6)(A)(i) of the Immigration and Nationality Act ("Act").- Present withollt being admilfed or paroled

APPLICATION: Objections to Government Submission of Form 1-213; Motion toTemlinate.

ON BEHALF OF RESPONDENT:Stacy Tolchin, EsquireVan Ocr Hout, Brigagliano & Nightinga le. LLP634 Spring Street, Suite 714Los Angele s, California 90014

ON BEHALF OF TH E GOVERNMENT:Carlos E. Maury, EsquireAssistant Ch ie f CounselU.S. Department of Homeland Security606 SOUlh Olive Street, S" FloorLos Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGEI. Procedural Histon'

On Febmary 13,2008, the Government personally served Respondent with a Notice toAppear ("NTA"). See Exh. I . In the NTA. the Government alleged that Respondent, a nativeand citizen of Guatemala, entered the United States at or near Douglas, Arizona, on or about July31.2005. and was not then admitted or paroled after inspection by an immigration officer. Id .Accordingly. the Government charged Respondent with removability pursuant to section212(a)(2)(6)(A)(i) of the Act. The NTA was filed with the Court on March 4. 2008, therebyvesting the Court with jurisdiction over these proceedings pursuant to 8 C.F.R. I003 .14(a).

On August 22. 2008, Respondent appeared in Court with counsel. Respondent denied allractual


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Government indicated that it did not have evidence at that time to support its charge againstRespondent. The Court ordered the Government to file any and all evidence to support its chargeagainst Respondent by December 5. 2008.

On December 17.2008, the Government tiled a Record of Deportab lellnadmissible AlienrForm 1-213") with a Motion to Accept Lale Filing. The Goverrunent explained that it failed tosubmit the requested evidence by the due date because of a clerical error.

On March 5, 2009, Respondent , through counsel, filed a Motion to TerminateProceedings and , Alternatively, to Suppress Evidence with supporting affidavits and documents.Respondent also filed Objections to Goverrunent Submission of Form 1-213 . Respondent objectsto admission of the Fonn 1-213 because it was untimely filed by the Government, and because itis inherently unreliable. Specifically. Respondent argues that, because the Government failed totile the Form 1-213 by the court-ordered deadline, it waived its opportunity to file evidence insupport of its charge of removability against Respondent. Respondent also argues that the Form1-213 is unreliable because it contains many unexplained errors and omissions, such as howinformation about Respondent was obtained.

On April 8, 2009, the Government filed an Opposition to Motion to Terminate andObjections. On April 17 ,2009, the Government filed an Amended and Superceding Response toMalian to Terminate and Suppress, asking the Court to accept the late submission on the basisthat the Government did not have the administrative file as of the filing deadline. TheGovernment argues that the Form 1-21 3 is related to Respondent, reliable, and trustworthy. Itmaintains that the Form 1-213 should be submitted into evidence because Respondent has failedto assert that the document contains any erroneous information. The Government contends thatthe statements recorded in the Form 1-213 establish alienage because "Respondent stated to thequestioning officer that she was born in Mexico and [isJ a citizen of Mexico."

On May 15,2009, Respondent, through counsel, filed a Reply to Government Opposition.Respondent asks the COLIrt to terminate proceedings without reaching the merits of her case,because " the government has twice disregarded the Court's deadlines and failed to timely submitboth its evidence and its opposition brief without good cause." Respondent also argues that theCourt should tenninate proceedings because the Government has failed to meet its burden toestablish alienage by clear. convincing. and unequivocal cvidence.

IV. Law and Ana lvsis

A. Government' s Burden of ProofThe Government has charged Respondent with being pn::sent in the United States without

being admitted or paroled by an immigration officer pursuant to seE lion 21-2(aX6XA)(i) of theAct. The Government then bears the burden to establish the alienage of Respondent by clear,


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convincing, and unequivocal evidence. 8 C.F.R. I240.8(c); see also Woodby v. INS, 385 U.S.276.28485 (1966): Murphy v. INS. 54 F.3d 605. 6 10 (9th Cir. 1995).

Here, the only evidence submitted by the Government to establi sh the alienage ofRespondent is the Form 1-213. However, the Court finds that the Government's submission wasuntimely and finds that the information contained therein is unreliable and untrustworthy. TheCourt will terminate proceedings for the followi ng reasons:

I. Unfimely FilingIt is well established that the Immigra tion Judge has the authority to set deadlines For

filings of pleadings and evidence. See 8 C.F.R. 1003.31(c). It is equally well estab lished that aparty, whether an alien or the DHS, may be deemed to have waived the opportunity to file suchdocuments upon that party's failure, wi thout good cause, to comply with such deadlines. (d .; seealso Immigration Court Practice Manual 3.1.In the instant case, the Court specifically ordered the Government to file its evidence insupport oFthe charge of removability no later than December 5, 2008, approximately fifteen days

prior to the December 22. 2008, hearing. The Court set the deadline for nearly three months afterthe August 22, 2008, hearing, at which Respondent contested the charges brought against her bythe Government. The Court set the deadline in comp liance wi th the Immigrat ion Court PracticeManual. See Practice Manual 3.I(b)(ii)(A).

Although clearly set, the Government fa iled to comply with the Court 's deadline ofDecember 5, 2008. Rather. the Government submitted its evidence. a certified Form 1-213, onDecember 17.2008. See Exh. 2 for identification. If a party fails to file documents by the courtordered deadline, the party may file a motion to accept an untimely filing, however, the mo tion"must exp lain the reasons for the late filing and show good cause ror acceptance of the filing."See Practice Manual 3.I(d)(ii). The Government argued that it failed to meet the filingdeadline due to a clerical error; however, the Court finds that a Government clerical error doesnot constitute good cause for railu re to comply with the December 5, 2008 deadline. TheGovernment obviously had the Form 1-213 at the time it commenced these proceed ings on March4,2008 , as the document itself appears to have been prepared on February 13,2008. TheGovernment has neither explained why it did not submitlh is evidence at Respondent's hearingon August 22. 2008, nor has it exp lained why one of the attorneys on stafT in the Office of theChief Counsel ror Ol-IS in Los Angeles, Ca li forn ia. cou ld not have ensured that the Form 1-213was properly prepared for submiss ion as evidence during the nearly three months afterRespondent contested removability. Consequently, because of its untimely submission, theCourt finds the Government waived its opportunity to file the Form 1-213.

2_ Rcliabilit)' of FIII'm 1-213In general. removal proccedings are not bound by the strict rules of evidence. Espinoza v.

J


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INS, 45 F.3d 308, 310 (91h Cir. 1995). In stead, Ihe lest for admissibi lity of documentaryev idence in removal proceedings is that evidence must be probative and that its use must befundamenlal ly fair. Matler of Barcenas, 19 I&N Dec. 609. 611 (BIA 1988); Trias-Hernandez v.INS, 528 F.2d 366 (9th Cir. 1975). A properly authenticated Form 1-213 is presumed to betrustworthy and admissible as evidence 10 prove alienage absent any indication that an 1-213contains information that is incorrect or was obtained by coercion or duress . Espinoza, 45 FJdat 310; see also Trias-Hernandez, 528 F.2d at 369; Marter ofPonce-Herdandez. 22 I&N Dec. 784(BIA \999) . This rule is premised on the assumption that " public officials perform their dutiesproperly without motive or interest other than to submit accurate and fair reports." Espinoza, 45F.Jd al 310 (quoling Keilh v. Volpe, 858 F.2d 467 , 481 (91h Cir. 1988)).

Here, Respondent challenges the reliability of the Form 1-2 13 because it containsincorrect and unsupported information . Upo n review of the Form 12 13, the Court agrees withRespondent.

The biographical information section on the Form 1-2 13 indicates that Respondent is fromShiela. Other. Guatemala." It states thai she is a laborer who has worked at Microsolutionsfrom October 2005 to February 7. 2008. The narrative portion of the Form 121 3 s tates:"Subject is a ci ti zen and national of Guatemala. Subject en tered the United States withoutinspection on July 3 1, 2005 at or near Douglas, Arizona. Subject is five months pregnant andrefused to answer any questions pertaining [tol her employment with Micro So lutionsEnterprises." See Exh. 2 for identification.

The Form 1-21 3 lacks any indication as to how the above-men tioned facts allegedlypertaining to Respondent were obtained. The preparer of the Form 1213 did not specify whetherRespondent provided her information during an interrogation, or if the preparer obtained thesefacts from an outside source. In fact, Respondent argues that there is no "Sheila, Guatemala" andattaches a map and an affidavit in support of her claim. Additionally, il is unclear how thepreparer of the Form 1-213 knew the dates of Re spondent 's employment if she refused to answerany questions regarding her employment.

In its opposition brief. the Government maintains that the "s tatements" recorded in theForm 12 J3 sut1iciently establish alienage because "Respondent stated to the questioning officerthat she was born in Mexico and [is I a ci tizen of Mexico." Ilowever. thi s argument failsprimarily because. according to the Form 12 13, Respondent is from Guatemala. It also fai lsbecause then: is no indication that Respondent made any "statements:' The Fo rm 12 13 includesonly conclusory s tatements of fact without any reference to their source. Furthermore. the Fonn12 13 is unsigned. thus further negating the trustworthiness o f the doc ument.

Finally, Respondent has submitted evidence that. dUring her first interrogation at MicroSolutions. an ICE agenllOld her that if she docs not remember where she enlerea the UnitedStates, she should "make up a place of entry - I ke Arizona," See Respondent 's Declaration, TabI. pg. 3, para. 10. Respondent also states that. during her third interrogation on February 13,

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2008, she refused to answer an ICE agent's questi ons, but the agent told her, "I already knowwhere you are from . You are from Guatemala." Id . at para. 51. The Government has offered noevidence to refute these allegations; therefo re, the Court finds that Respondent 's swornstatements, together wi th th e facial inaccuracies and inconsistencies contained in the Form 1-213,suffici entl y rebut the presumption that the Form 1-2 13 is re liable or trustworthy.

For the foregoi ng reasons, the Court will sustain Re spondent 's objections to admission ofthe Form 1-2 13 into evidence. Absent other evidence to establish Respondent's alienage orremovability, the Court finds that the Government has fai led to meet its burden to proveRespondent's alienage by clear and convincing evidence. Therefore, the Coun find s good causefor termination of th e instant proceedings.

As the Court finds sufficient cause to terminate proceedings based on these grounds, itwill not reach Re spondent' s remaining argum ents. Accordingly, the following orders wi ll beentered:

ORDERSIT IS ORDERED that Respondent's objections to the Government' s submission of th e

Form 1-2 13 are SUSTAINED.IT IS FURTHER ORDERED thaI Respondent's MOIion to Terminate theseproceedings is hereby GRANTED.IT IS FURTHER ORDERED that these proceed in gs be hereby terminated.IT IS FURTHER ORDERED that the hea ring scheduled for June 26. 2009 at I :00 p.m.is hereby VACATED.

DATE: J (A.I'Q. I8', 1...;;j)C(

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f ~ ~ ~ = = = - - : >' '___yr:tnk M. ravicso

Immigration Judge

order of suppression in van nuys raids - ij travieso (los angeles imm. ct, june 18, 2009)

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