Johns v. Department of Justice of U.S., 80-5135
| Citation | 624 F.2d 522 |
| Decision Date | 01 August 1980 |
| Docket Number | No. 80-5135,80-5135 |
| Parties | Mark David JOHNS et al., Plaintiffs-Appellants-Cross Appellees, v. DEPARTMENT OF JUSTICE OF the UNITED STATES et al., Defendants-Appellees, Angela Macias-Rosales, Intervenor-Appellee-Cross Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Joseph C. Nazzaro, North Miami Beach, Fla., for plaintiffs-appellants-cross appellees.
Peter Nimkoff, Richard A. Marshall, Jr., Asst. U. S. Attys., Miami, Fla., for defendants-appellees.
Elizabeth S. Baker, Miami, Fla., for Angela Macias-Rosales, intervenor-cross appellant.
Appeals from the United States District Court for the Southern District of Florida.
Before RUBIN, HENDERSON and REAVLEY, Circuit Judges.
The Director of the Immigration and Naturalization Service has ordered the deportation of a female child named Cynthia, who is slightly less than five years old and who was brought into the United States from Mexico, where she was born, when she was one day old. Because the child has not been represented by a guardian ad litem, we reverse the district court, direct it to issue a preliminary injunction against execution of the deportation order, and remand the case for the appointment of a guardian ad litem and for further proceedings contradictorily with that person.
Mark David Johns and his wife, Eileen May Johns, United States citizens, brought Cynthia from Mexico without a visa or other proper documentation. Angela Macias-Rosales, a Mexican native, who is 36 years of age, claims that she is Cynthia's mother and that the child was kidnapped from her in Tijuana, Mexico. The Johns contend that Cynthia was given to them by Mrs. Macias-Rosales, and that they took her from Mexico with her consent. Mrs. Macias-Rosales communicated with the INS on January 29, 1976, in San Francisco, California. This led to an INS investigation. On October 24, 1976, the INS ordered a deportation hearing. In January, 1977, the immigration judge issued an interlocutory order declaring Cynthia deportable, but withholding its final order to allow custody proceedings in state court. These were not completed. Further INS proceedings followed, which we need not detail at this time. On January 30, 1980, the District Director of INS rescinded an earlier stay of deportation and a warrant for Cynthia's deportation was issued. When the Johns failed to surrender Cynthia to the INS, she was taken into INS custody. The Johns filed this suit, seeking to enjoin deportation and to obtain a writ of habeas corpus. Mrs. Macias-Rosales' motion to intervene was denied. The district court dismissed the Johns' complaint with prejudice. The Johns appealed and Mrs. Macias-Rosales has been permitted to intervene in this court in support of the district court's judgment.
In the many legal proceedings the Johns have appeared through counsel representing both themselves and Cynthia. Their interests and Cynthia's are not necessarily the same. They patently lack legal standing to represent her, being neither her natural nor her adoptive parents and having no custody order. It appears to be undisputed that Mrs. Macias-Rosales is Cynthia's mother. Her personal interest must command sympathy. Whatever the events that occurred in Tijuana about five years ago, she seeks return of her own daughter whom she has not seen since the day after Cynthia's birth. However, Cynthia has been raised in a different culture, speaks a different language, has resided for all but the first twenty-four hours of her life with another family and would, if deported, presumably be taken to Mrs. Macias-Rosales' home to reside with two older siblings who have never seen her and with whom she could not communicate. Under these circumstances, Mrs. Macias-Rosales does not necessarily represent Cynthia's interests.
Deportation is not a criminal action, but the consequences may more seriously affect the deportee than a jail sentence. The liberty of the individual is at stake and "meticulous care must be exercised...
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Johns v. Department of Justice of U.S., s. 80-5135
...and REAVLEY, Circuit Judges. ALVIN B. RUBIN, Circuit Judge. Almost a full year has passed since this Court, in Johns v. Department of Justice, 624 F.2d 522 (5th Cir. 1980), considered an appeal from an order of a district court refusing to stay the deportation of Cynthia, then a four-year-o......
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Gonzalez ex rel. Gonzalez v. Reno
...interest in the child such that the INS24 itself placed Plaintiff in his hands on November 25, 1999.25 In Johns v. Department of Justice, 624 F.2d 522 (5th Cir.1980), the Fifth Circuit addressed a situation in which a one-day-old child was taken from her birth mother in Mexico and brought t......
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F.L.B. v. Lynch
...of being separated from them if she cannot also stay in the United States.The fourth case on which defendants rely, Johns v. Dep't of Justice , 624 F.2d 522 (5th Cir.1980), actually runs contrary to their position. In Johns , a husband and wife brought an infant girl from Mexico into the Un......
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Dolin On Behalf of N.D. v. West
...sue on behalf of a child where the parent's interests are not aligned with those of the child. See, e.g., Johns v. Dep't of Justice of the United States, 624 F.2d 522 (5th Cir.1980). Instead, the court must appoint a guardian ad litem or must make "such other order as it deems proper for th......