Cervantes De Hernandez v. Chertoff

• Citation: 368 F.Supp.2d 896
• Decision Date: 06 May 2005
• Docket Number: No. 05-C-0347.,05-C-0347.
• Parties: Leticia CERVANTES DE HERNANDEZ, Petitioner, v. Michael CHERTOFF, et al., Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 896

368 F.Supp.2d 896

Leticia CERVANTES DE HERNANDEZ, Petitioner, v. Michael CHERTOFF, et al., Respondent.

No. 05-C-0347.

United States District Court, E.D. Wisconsin.

May 6, 2005.

COPYRIGHT MATERIAL OMITTED

Godfrey Y Muwonge, Godfrey Y Muwonge's Law Office, Milwaukee, WI, for Petitioner.

Nora Sheehan Barry, United States Department of Justice, Office of the U.S. Attorney, Milwaukee, WI, Bernard R Vash, Kenosha County Corporation Counsel, Kenosha, WI, for Respondents.

DECISION AND ORDER

RANDA, Chief Judge.

Leticia Cervantes de Hernandez ("Cervantes de Hernandez") has been in this country for twenty years, and perhaps even longer. On March 22, 2005, she was detained by special agents of Immigrations and Customs Enforcement and now awaits removal. Cervantes de Hernandez filed a petition for a writ of habeas corpus, temporary restraining order, injunction, and declaratory judgment. Her case presents questions that must be answered by the complex, evolving, and sometimes ambiguous, area of immigration law.

I. BACKGROUND

Cervantes de Hernandez is a female native and citizen of Mexico. Her husband and two sons are United States citizens. She has been in the United States since at least April 20, 1985, when she entered the country without inspection.¹ In November 1993, she was granted permission to depart the United States voluntarily within one year, but she did not do so.

In the meantime, Cervantes de Hernandez was caught exchanging fake social security cards and fake resident alien cards for money. She pleaded guilty (in this district) to two crimes: transferring false United States identification documents in violation of 18 U.S.C. § 1028(a)(2) and knowingly possessing unlawful United States documents in violation of 18 U.S.C. § 1028(a)(6). She was sentenced in January 1995 by then-Chief Judge Terence T. Evans to two years probation.

Nearly two years later, in October 1996, the Immigration and Naturalization Service ("INS")² began deportation proceedings against Cervantes de Hernandez. The INS alleged that Cervantes de Hernandez had entered the United States without inspection in violation of Section 241(a)(1)(B) of the Immigration and Nationality Act ("INA"). Not long after learning of the deportation proceedings, Cervantes de Hernandez filed an Application to Register Permanent Residence or Adjust Status ("Form I-485") with the INS. On that form, Cervantes de Hernandez answered "NO" when asked whether she had ever "been arrested, cited, charged, indicted, fined, or imprisoned for breaking or violating any law or ordinance, excluding traffic violations." (See Muwonge Decl. in Supp. of Habeas Corpus Pet. ("Muwonge Decl.") Ex. 7.) Cervantes de Hernandez says that misrepresentation (she had, in fact, been convicted) was her lawyer's fault.

Cervantes de Hernandez maintains that her lawyer sent her two copies of the form. He asked her to sign the original, but to leave the questions blank — she was to fill in her answers to the questions on a photocopy of the form. Cervantes de Hernandez claims she signed the original, certifying under penalty of perjury that the information on the application was true, and her lawyer later typed the answers from the copy onto the original and submitted the form.

For thirteen months nothing happened. Then, in December 1997, the INS notified Cervantes de Hernandez of two additional charges of deportability. First, the INS claimed that Cervantes de Hernandez could be deported because of her conviction in the Eastern District of Wisconsin. See 8 U.S.C. § 1227(a)(2)(A)(ii) (any alien who, at any time after entry, is convicted of two or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, is deportable). Second, the INS claimed that Cervantes de Hernandez was excludable because she had willfully misrepresented a material fact on her Form I-485 in an effort to procure a visa or other documentation or benefit provided by the INA. See 8 U.S.C. § 1182(a)(6)(C)(i) (any alien who by fraud or willfully misrepresenting a material fact, seeks to procure a visa, other documentation, or entry into the United States or other benefit provided by the INA is excludable). In response, Cervantes de Hernandez filed an Application for Waiver of Grounds of Excludability.

So, when the case went before an immigration judge ("IJ") in April 1998, three matters required resolution: (1) deportation proceedings against Cervantes de Hernandez; (2) Cervantes de Hernandez's Form I-485 (Application for Adjustment of Status); and (3) Cervantes de Hernandez's Application for Waiver of Grounds of Excludability. After a lengthy series of hearings, the IJ issued a decision on September 28, 2001. In it, the IJ found by clear, convincing, and unequivocal evidence that Cervantes de Hernandez was deportable because she had entered the United States without inspection. He also found that she was inadmissible because she had willfully misrepresented a material fact on her Form I-485. He did not find, however, that she was deportable because of her two convictions in the Eastern District of Wisconsin because one of the two offenses was a possessory offense that he did not consider a "separate crime involving moral turpitude." (Muwonge Decl. Ex. 13 (emphasis added).)

Having concluded that Cervantes de Hernandez was inadmissible, the IJ turned to her request for a waiver of inadmissibility (a waiver she needed in order to have her status adjusted). Waiver of inadmissibility is a form of relief committed to the IJ's discretion. See 8 U.S.C. § 1182(i). The IJ determined that Cervantes de Hernandez's family ties to the United States — her husband and two sons are United States Citizens — would ordinarily be sufficient to earn her a waiver of inadmissibility. But the IJ also noted that he was entitled to balance favorable and unfavorable factors. Accordingly, the IJ considered testimony that Cervantes de Hernandez gave at her deportation hearing regarding her convictions. He found that Cervantes de Hernandez's "testimony was neither altogether truthful nor candid." (Muwonge Decl. Ex. 13.) As a result, the IJ denied her application for a waiver of inadmissibility (and her application for adjustment of status), noting that it was "unfortunate given that her ... family ties [and] attendant hardship ... would ordinarily outweigh the egregiousness of the crime for which she was convicted."

Cervantes de Hernandez appealed to the Board of Immigration Appeals ("BIA"), but to no avail. In March 2003, the BIA affirmed the IJ's decision without opinion. The BIA ordered Hernandez to voluntarily depart within thirty days or be deported. Rather than depart, Cervantes de Hernandez filed a motion to reopen her case with the BIA. In that motion, Cervantes de Hernandez alleged that she had been ineffectively assisted by her original lawyer because he had answered the criminal history question on her Form I-485 incorrectly. She submitted "new evidence" to the BIA to substantiate her claim — a letter from her lawyer instructing her to sign the original form, fill out a copy, and mail both back to him; he would type the answers on the original and submit it. Unfortunately, Cervantes de Hernandez submitted her motion to reopen one day late, and the BIA denied it as untimely. Moreover, while the Board had discretion to reopen the case despite the untimeliness of the motion, see 8 C.F.R. § 1003.2(a), it chose not to. It noted:

There is no basis whatsoever for abrogating the motions deadline here. The respondent has been represented by current counsel since 1998, when he appeared on her behalf at a continued deportation hearing. Current counsel also represented [Cervantes de Hernandez] on appeal to this Board. Her claims against former counsel could have been raised long ago ....

(Muwonge Decl. Ex. 18 at 2.) Though ordered to depart voluntarily several times, Cervantes de Hernandez has failed to do so. She was detained on March 22, 2005, and is scheduled to be deported.

With few (if any) options available to her, Cervantes de Hernandez filed a petition for a writ of habeas corpus, temporary restraining order, injunction, and declaratory judgment in this Court. Without the benefit of the government's response, the Court granted Cervantes de Hernandez's request for a temporary restraining order preventing the government from deporting her. See Decision and Order March 31, 2005. The matter was promptly set for a hearing to determine whether a stay of removal should issue and to identify more carefully the contours of Cervantes de Hernandez's petition. After hearing both sides of the story, the Court took these matters under advisement, giving the parties ten days to brief their issues and promising a decision within thirty days.

II. DISCUSSION

Cervantes de Hernandez bases her petition for a writ of habeas corpus on two alleged errors of law. First, she claims that the IJ erred as a matter of law when he found that she willfully misrepresented a material fact on her Form I-485 (an offense that made her inadmissible). She argues that the IJ was required to make that finding by clear, convincing, and unequivocal evidence — a standard that she maintains must admit of no doubt. See Addington v. Texas, 441 U.S. 418, 432, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) ("The term `unequivocal,' taken by itself, means proof that admits of no doubt, a burden approximating, if not exceeding, that used in criminal cases." (footnote omitted)). She insists that there was doubt in the record because she testified that the misrepresentation was not her fault, but her lawyer's. Second, Cervantes de Hernandez claims that once he found her inadmissible, the IJ erred when he denied her a waiver of inadmissibility. Specifically, she alleges that he erroneously considered her testimony about her convictions in exercising his discretion. None of Cervantes de Hernandez's substantive claims may be reached, however, until the...