Dent v. Holder
| Decision Date | 09 November 2010 |
| Docket Number | No. 09-71987,09-71987 |
| Citation | 627 F.3d 365 |
| Parties | Sazar DENT, aka Cesar Augusto Jimenez-Mendez, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Anne R. Traum, Supervising Attorney and Holly E. Cheong, Student Attorney, Kristopher T. Zeppenfeld and Corina R. Pandeli, Student Attorneys on brief, University of Nevada, William S. Boyd School of Law, Thomas & Mack Legal Clinic, Las Vegas, NV, for the petitioner.
Paul Fiorino, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A037-082-657.
Before: ANDREW J. KLEINFELD, A. WALLACE TASHIMA and SIDNEY R. THOMAS, Circuit Judges.
We address an alien's right to see his "A-file" during proceedings against him.
The Department of Homeland Security initiated removal proceedings against Dent on the ground that he was not an American citizen or national, and had been convicted of an aggravated felony. He has lived in the United States since 1981, but according to the government, he is a citizen of Honduras and has been a lawful permanent resident rather than a citizen. He was convicted on a guilty plea in the Superior Court of Arizona of possession or use of narcotic drugs 1 and escape in the third degree,2 both felonies, and sentenced to one year of imprisonment.
Dent defended pro se against his removal, arguing that he had been adopted by an American citizen when he was a child, and was an American citizen himself. He also argued that his convictions did not suffice to make him an aggravated felon under the statute.3 The BIA adopted and affirmed the IJ's decision that he be removed.
Dent at first conceded, at a hearing before the IJ, that he was not a citizen of the United States. Subsequently, when the IJ found that his escape, though on foot and for only half a block, was a crime of violence, and that the charge of removal had been proved, Dent said The IJ said he knew nothing about it.
In a previous hearing, government counsel had referred to Dent's Alien File ("A-file") ("[the I-261] might have had a different 'A' number on because we had to change'A' numbers on this case...."). In an earlier separate proceeding the government filed a "motion to change A-file number" from A24 411 521 to A37 082 657, consolidating the two files for Dent, also using his pre-adoption name, Cesar Augusto Jimenez-Mendez. The government had not given copies of the A-file to Dent or to the IJ in Dent's removal case. An A-file is the file maintained by various government agencies for each alien on record. "Contents include, but are not limited to passport, driver's license, other identification cards, and photographs; immigration history (prior record); and all documents and transactions" relating to the alien.4
After Dent told the IJ he had been adopted by an American citizen, the IJ reminded him that "You admitted that you're a native and citizen of Honduras." Dent replied He went on, "I have my adoption papers to show you, if you want to see them." The IJ understood Dent to mean that he was claiming United States citizenship and asked Dent if he had the adoption papers with him. Dent did not, so the IJ gave him a continuance so that he could produce them.
Dent succeeded. He wrote the lawyer in Arkansas who had handled his Arkansas adoption twenty years before, and produced not only his adoption decree, but his school records showing his elementary and high school attendance and his grades. But then government counsel pointed out that he had not proved that his adoptive mother, Roma Dent, was herself an American citizen. The IJ asked Dent if he had his now-deceased mother's birth certificate. Dent did not, so the IJ gave him three weeks to get it and produce it. Dent wrote the Arkansas adoption lawyer again. The lawyer replied that he would be unable to find a death certificate because Ms. Dent had died in Honduras, and a birth certificate would be a problem because (Ms. Dent was born in 1905.) He was working on getting her passport, difficult since she had died on a trip to Honduras. Nevertheless the adoption lawyer sent Dent other persuasive evidence of his adoptive mother's citizenship: her 1950 application for a social security number, in which she had represented that she was born in Morehead in Labette County, Kansas June 17, 1905, of Arley Riggs and Irma Riggs nee Ross.
Dent wrote a statement to the IJ explaining that Ms. Dent had taken him, a child abandoned at age five or six, under her wing on her annual trips to help poor people in Honduras, brought him to America, and adopted him when he was fourteen:
Dent pointed out in this statement that "the government really knows that she was a U.S. born citizen by birth."
Noting that Dent had still not produced his mother's birth certificate despite continuances and that he could pursue hiscitizenship claim from Honduras, the IJ found that "respondent has been unable to make a prima facie showing of citizenship in the United States" and ordered him removed to Honduras.
Dent appealed to the BIA, and won a remand on the non-substantive ground that the record it received lacked the adoption decree and the criminal judgment. On remand, the government lodged an additional charge, that Dent was removable not only for the escape but also for his controlled substance violation. The IJ again found Dent removable because his escape violation was a crime of violence, and also because of his controlled substance violation. Dent again appealed to the BIA, and the BIA adopted and affirmed the IJ's decision.
Unknown to Dent, documents existed in Dent's A-file related to Dent's claim of United States citizenship. These documents were always in the government's control, but never given to Dent. The documents consisted of a naturalization application Dent's adoptive mother filed on Dent's behalf on January 18, 1982 when Dent was fourteen, and an Application to File Petition for Naturalization Dent filed on his own behalf on February 26, 1986, when he was eighteen. The A-file does not include any document purporting to adjudicate either application. We now know about the A-file only because of a peculiar course of subsequent proceedings discussed below. Dent was not given these documents, and the IJ and BIA were not made aware of them, in the removal proceedings.
Dent petitions for review of the BIA decision affirming the IJ's decision, and raises a new issue, that he should have been furnished with the naturalization petitions in his A-file.
The procedural history of Dent's case took peculiar turns. First, the BIA remanded to the IJ because the record was inadequate. Second, the BIA affirmed, but failed to send notice to Dent at his current address. Dent was arrested in Ohio in 2008 for illegal reentry 5 and claimed (correctly) that he had not known that the BIA had affirmed or that he had been ordered deported. The government conceded inadequate notice and dismissed the indictment for illegal reentry in 2009. Dent had obtained counsel in the criminal proceeding. Counsel petitioned the BIA to reissue the 2005 decision that had not been sent to the proper address, so that a timely petition for review could be filed. The BIA did so, and the petition for review before us is from the reissued decision.
The A-file documents have trickled into these proceedings subsequent to the government's aborted criminal prosecution for illegal reentry, so subsequent to the BIA decision under review. The BIA, so far as we can tell from the record, has never been provided with Dent's A-file documents regarding his adoptive mother's and his own petitions for his naturalization. When the BIA held that Dent had failed to prove that he was a naturalized...
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