Gete v. INS

Decision Date04 August 1997
Docket NumberNo. 95-35408.,95-35408.
Citation121 F.3d 1285
PartiesZenebe GETE, Michael Hughes, Olga Froehlich, Dallas Julien, Binay Gounder, Bimal Chand, Dale Racine, Balvinder Maan, Ravinder Maan, and John Lackner, on behalf of themselves, individuals and on others similarly situated, Plaintiffs-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Stanley Johnson, Regional Commissioner, USA, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Robert Pauw, Seattle, WA, for plaintiffs-appellants.

Michael E. Robinson, Washington, DC, for defendant-appellee.

Before: REAVLEY,* REINHARDT, and WIGGINS, Circuit Judges.

Opinion by Judge REINHARDT; Dissent by Judge REAVLEY.

REINHARDT, Circuit Judge:

This case involves the seizure and administrative forfeiture of property by the Immigration and Naturalization Service ("INS") from a number of people who, on the basis of the record before us, appear to have been guilty of nothing more than honest mistakes. It also involves the administrative review of forfeitures under procedures lacking all semblance of due process. For the reasons set forth below, we hold that the district court erred in dismissing the plaintiffs' constitutional claims on the grounds of lack of jurisdiction and waiver, and that to the extent it reached the merits, it erred there as well. We further hold that the district court abused its discretion in denying the plaintiffs' motion for class certification.

I. BACKGROUND

The ten named plaintiffs and the members of the putative class contend that they suffered similar treatment at the hands of the INS.1 We provide two representative accounts in order to demonstrate the factual bases of their claims. Because this case comes before the court on appeal from the district court's dismissal of some claims and grant of summary judgment with respect to others, we view all factual disputes in the record in the light most favorable to the plaintiffs.

A. Bimal Chand

Unfortunately for Bimal Chand, gasoline is cheaper in the United States than it is in Canada, and unfamiliar roads can be confusing. Chand, a Canadian citizen and a named plaintiff in this action, was travelling with his wife as part of a three-car caravan to a family picnic at Boundary Bay Beach, a Canadian recreation area near the United States border. Chand's parents and Suneeta Prasad, a nanny employed by Chand's sister, rode in the lead vehicle. Chand's brother-in-law drove the second vehicle, and Chand drove the third — a car he owned. As the Chand family's vehicles approached the United States-Canada border, Chand's father decided to make a brief detour on the way to the picnic to take advantage of the lower prices on gas and groceries in the United States. Because Ms. Prasad was not a Canadian citizen — although she was residing there — and had no papers that would permit her legally to enter the United States, Chand's father pulled his car over to the side of the road near the Canadian Customs area and told her to get out and wait for his return; Chand's mother got out of the car also, and the two women then walked a short distance to a more comfortable spot.

Meanwhile, intending to go directly to the picnic site, but distracted by the detour made by the lead vehicle, Chand's brother-in-law turned down a road that ran between the United States and Canadian customs areas, and Chand followed. In doing so, they inadvertently passed the Canadian Customs area. Officer Chan, a United States customs official, flagged down Chand's car and directed him to pull off the road, although she did not stop the brother-in-law's vehicle. When Chand pulled over and got out of his car, Chan asked him if he had cleared United States customs and immigration. Chand told her that he had not done so because his destination was in Canada and he had no intention of entering the United States. Chan replied that he had already crossed the border, and instructed him to go to the United States customs station. By that time, Chand's mother and Ms. Prasad had seen him pull over, and had walked toward his car from the place where they were awaiting his father's return. Upon learning that Ms. Prasad was not a Canadian citizen and was not carrying documentation regarding her Canadian immigration status, Chan told the women to follow them to the customs area. When they got there, she seized the car for an alleged violation of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1324(a).2 She did not explain that Chand was entitled to challenge the seizure, nor did she tell him how he could attempt to recover his car. Even though Chand had pulled over to the side of the road only after being directed to do so, Ms. Prasad overheard Officer Chan remark that she was seizing the car because she suspected he had stopped to pick up the women illegally.

Subsequently, Chand received a letter from the INS informing him that he could post bond and challenge the seizure in court, with the government retaining possession of both the car and the bond throughout the litigation process, or that he could contest the forfeiture in an administrative "personal interview," for which no bond was required, although the INS would still hold the car pending the outcome of that proceeding. On the basis of the letter and his faith in the common sense of the INS, Chand selected the speedier, less costly administrative route rather than the slower, more complicated and far more expensive judicial one.3

Chand's "personal interview" consisted of nothing more than a couple of immigration officials talking to him briefly from behind a counter in a public area of a customs station. Perhaps not surprisingly, the summary meeting resulted in a determination that the vehicle was forfeited. Chand then filed petitions for "remission" and "mitigation" with the INS, as he was entitled to do under the applicable regulations. After a delay of several months, the INS finally agreed to grant the latter, which entailed Chand's payment of a fine and fees in the amount of $448.98 instead of the permanent loss of his vehicle.

Under the facts as we must view them, the innocent missing of a turnoff to a picnic site while on the way to a family gathering ended up costing Chand not only the use of his vehicle for a prolonged period of time and several hundred dollars in fines and fees, but also his job: Chand was fired because he was unable to get to work without his car. Thus, although Chand's father may have saved a few cents a gallon on gas by lawfully crossing the border to patronize a United States gas station, the ultimate cost to the family was out of all proportion to any benefits his trip may have yielded.

B. Case Number 914 BLW 00114

If gas is cheap on the United States side of the border, words may be even cheaper, at least if they are not carefully analyzed by all involved. Mrs. Doe,4 a member of the putative class, is a Canadian citizen whose car was forfeited because her husband followed the advice given by a United States consular official, at least as that advice was reported to him. According to the Does, their troubles began when two young girls arrived in Canada for a visit: the daughter of Mr. Doe's friend and business associate from England, and her travelling companion from Australia. The record does not disclose the age of "the girls," although the impression one receives is that they were probably teenagers. Mr. Doe is a Canadian business executive who conducts business abroad and has a number of European business associates. The girls were taking a trip around the world, and had intended to go sight-seeing in Northern British Columbia and the Yukon before completing their journey and returning to England. Because of gloomy weather in those parts of Canada, however, and enticed by the millions of dollars in advertising designed to lure both American and foreign tourists to Disneyland and Universal Studios, they decided to visit California instead. So, they went to the United States Consulate in Vancouver, British Columbia, to see whether they would be permitted to enter the United States. They reported to Mr. Doe that the consular official said they might not need visas if an adult Canadian citizen with whom they were staying took them across the border. Mr. Doe therefore agreed to drive them from Vancouver to Bellingham, Washington, and then to put them on a Greyhound bus to Los Angeles.

The night before the trip was to begin, Mrs. Doe's car (of which she was the registered owner and operator), developed a dead battery and required a jump start. As a result, Mrs. Doe drove her husband's car to work at the University of British Columbia the next morning because she was afraid that if she drove her own she would have a dead battery at the end of the day. Mr. Doe's vehicle was a company car. According to the record, Mr. Doe was a model citizen with no criminal record of any kind and Mrs. Doe had never known him to break the law in any way, so she did not hesitate to allow him to use her car to take the girls to the Bellingham Greyhound station.

In the meantime, the girls changed their plans and decided that, rather than taking the bus, they would ride to California with a friend who was driving there from Canada but was himself not a Canadian. Heeding the advice of the United States consular official, they had Mr. Doe drive them across the border and drop them off to wait for their friend. Mrs. Doe did not know anything about this new arrangement and did not accompany her husband across the border with the girls. At the United States customs station, a customs officer asked Mr. Doe where he was born and where he was going. He responded that he was born in Canada and was heading to Bellingham. He was not asked and did not volunteer that the girls were not Canadian citizens and that he was going to drop them off so that they could get a ride to Disneyland. He now acknowledges with hindsight that he...

To continue reading

Request your trial
44 cases
  • Al Haramain Islamic v. U.S. Dept. of Treasury
    • United States
    • U.S. District Court — District of Oregon
    • 6 Noviembre 2008
    ...without "unreasonable delay," and certainly before the September 9, 2004 designation finalizing the blocking order. See Gete v. I.N.S., 121 F.3d 1285, 1296 (9th Cir.1997) (civil forfeiture In an analogous situation, the Ninth Circuit reviewed the administrative forfeiture proceedings of the......
  • AL Haramain Islamic Found., Inc. v. U.S. Dep't of the Treasury
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 27 Febrero 2012
    ...and legal bases for a government action does not substitute for actual notice of the government's intentions. In Gete v. INS, 121 F.3d 1285, 1287–91 (9th Cir.1997), the INS seized motor vehicles from certain aliens and offered only summary process of the aliens' requests to recover those ve......
  • U.S. v. Pallares-Galan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 20 Febrero 2004
    ...of right to appeal).5 For a waiver to be valid, the government must establish by "clear and convincing evidence," Gete v. INS, 121 F.3d 1285, 1293 (9th Cir.1997), that the waiver is "considered and intelligent." U.S. v. Lopez-Vasquez, 1 F.3d 751, 753-54 (9th Cir.1993)(en banc); see also U.S......
  • Kashem v. Barr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 21 Octubre 2019
    ...and finding "no reason why [the government] could not have given [such] notice in this particular case"); see also Gete v. INS , 121 F.3d 1285, 1297 (9th Cir. 1997) (holding that notice of an administrative forfeiture of a vehicle under 8 U.S.C. § 1324(b) must include "the exact reasons" fo......
  • Request a trial to view additional results
2 books & journal articles
  • Additional charges
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Volume 1
    • 30 Marzo 2022
    ...Charges §2:44 Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152. Eby v. Chaskin (1996) 47 Cal.App.4th 1045. Gete v. I.N.S. 121 F3d 1285 (9th Cir 1997)—“Personal interview” hearing in a vehicle forfeiture case, consisting of talking to an I.N.S. official over a counter, without adequ......
  • Table of cases
    • United States
    • James Publishing Practical Law Books California Drunk Driving Law - Volume 1-2 Appendices
    • 30 Marzo 2022
    ...547 U.S. 103, §7:77.1 Gerstein v. Pugh (1975) 420 U.S. 103, §5:22.2 Gerwig v. Gordon (2021) 61 Cal.App.5th 59, §11:122.3.4 Gete v. I.N.S., 121 F3d 1285 (9th Cir. 1997), §2:44 Giglio v. United States (1972) 405 U.S. 150, 154, §§5:53.4, 5:100.3 Gikas v. Zolin (1993) 6 Cal.4th 841, §§10:31.6, ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT