Johns v. Department of Justice of U.S., s. 80-5135

• Decision Date: 04 August 1981
• Docket Number: 81-5062,Nos. 80-5135,s. 80-5135
• Citation: 653 F.2d 884
• 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: U.S. Court of Appeals — Fifth Circuit

Page 884

653 F.2d 884

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.

Nos. 80-5135, 81-5062.

United States Court of Appeals, Fifth Circuit.

Aug. 4, 1981.

Rehearing denied Sept. 2, 1981.

Joseph Nazzaro, North Miami Beach, Fla., Philip Dennis, Financial Planning Consultant, North Miami Beach, Fla., for plaintiffs-appellants, cross appellees.

Atlee W. Wampler, III, U. S. Atty., Peter Nimkoff and Richard A. Marshall, Jr., Asst. U. S. Attys., Miami, Fla., for defendants-appellees.

Elizabeth S. Baker, Legal Serv. of Greater Miami, Inc., Miami, Fla., Kathy Hamilton, Coral Gables, Fla., for Macias-Rosales.

Theodore Klein, Miami, Fla., Guardian Ad Litem for minor child Cynthia.

Appeals from the United States District Court for the Southern District of Florida.

Before RUBIN, HENDERSON 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-old child, who, when she was one day old, had been brought to the United States from Mexico, where she had been born. The immigration judge, after a deportation hearing, had concluded that Cynthia had been brought to the United States illegally and had found her deportable. This decision had been affirmed by the Board of Immigration Appeals, which, however, had granted Cynthia the privilege of voluntary departure. Pursuant to an INS warrant issued on January 30, 1980, Cynthia had been taken from the Johns and had been placed in an institution under the care of Catholic Services Bureau (CSB), for what was then proposed to be a period of 48 to 72 hours, pending arrangement of air transportation to Mexico.

No appeal had been taken from the Board's final order. Instead, Mark and Eileen Johns, who had brought Cynthia to the United States shortly after her birth and who had reared her as their daughter since then, had filed suit to enjoin her deportation and for a writ of habeas corpus commanding that she be returned to their custody. Her natural mother, Angela Macias-Rosales, sought to intervene. She contended that the Johns had taken Cynthia illegally and asked that her child be returned to Mexico. The United States had sought dismissal of the proceeding. The district court had denied the Johns' motion in its entirety and had denied Mrs. Macias-Rosales' motion to intervene. The Johns had then filed an appeal to this Court.

Because Cynthia had not been represented in the deportation proceeding, we remanded the case to the district court with instructions to appoint a guardian ad litem to represent Cynthia, to enjoin execution of the deportation order, and to direct the INS to conduct all further proceedings involving Cynthia contradictorily with her guardian ad litem. ¹

It was apparent to all that, in view of her age, the temporary situation was traumatic to Cynthia and its protraction was undesirable. We had no jurisdiction to determine what her personal welfare required, however, because the only issues before us were whether her deportation should be enjoined and whether habeas corpus should be granted to the Johns. Contemplating further INS action, we ordered it to be completed within sixty days and further ordered subsequent district court proceedings to be completed within thirty days thereafter. To avoid further appellate delay, we retained jurisdiction.

Events thereafter, unfortunately, perhaps due to no one's fault or more likely due to the fault of everyone but Cynthia, and to Cynthia's continued detriment, took the leisurely course we had hoped to avoid. Our opinion was issued on August 1, 1980. On August 6, the district judge appointed Theodore Klein, Esq. and Rebecca Poston, Esq., both members of the Florida bar, as guardians ad litem for Cynthia. On August 22, the Johns filed a motion seeking her release to their custody pending resolution of the case. This was accompanied by psychiatric and psychological reports stating that the Johns were Cynthia's "psychological parents" and that she should be returned to their care immediately lest she suffer permanent psychological harm. Cynthia's mother countered with a motion to deny the Johns' motion. The INS opposed the Johns' motion on the grounds, inter alia, that the Johns might flee and that it was doubtful that they provided a desirable home environment. Mr. Klein, as guardian ad litem, ² also opposed the Johns' motion. On September 23, the district judge denied the motion.

Meanwhile, on September 5, the federal defendants, represented by the Assistant U.S. Attorney, called the district court's attention to the passage of time since the entry of this Court's order and to the failure of either the INS or the guardian ad litem to institute any proceedings. The federal defendants recommended the appointment of a psychiatric and a psychological expert to assist the guardian ad litem. In apparent response to that action, the guardian ad litem petitioned this Court and we granted an additional fifteen days for completion of INS proceedings. ³

On October 30, Mr. Klein filed a request with the INS District Director for a "stay of deportation." In the letter requesting the action, he recommended that "custody" be decided by a Florida court. On November 12, the District Director granted the stay by a letter addressed to Mr. Klein. The letter states, in part:

It is very evident from its decision that the Circuit Court is troubled by the fact that Cynthia Johns was not specifically represented by Counsel during the previous legal proceedings. The Court points out that even though Mr. and Mrs. Johns were frequently represented by Counsel, their interests do not necessarily coincide with those of Cynthia. The thrust of the Circuit Court's decision is that Cynthia's interests must be considered before a final decision is made regarding her deportation from the United States.

On the basis that the custody of Cynthia Johns will be litigated, and hopefully decided in a Florida Court proceeding, I am granting your request for a Stay of Deportation pending the outcome of those proceedings.

Mrs. Macias-Rosales promptly filed a motion requesting the federal District Court to order Cynthia's deportation or, in the alternative, to declare the INS to be "without further authority to detain the child" and to "release the child forthwith to the natural mother." The Johns opposed the motion and asked the Court to order the "immediate release of Cindy" to them.

Meanwhile, on December 5, the guardian ad litem filed a proceeding in the Family Division of the Florida state trial court ⁴ "to determine the legal custody of Cynthia (Johns)." Mrs. Macias-Rosales, opposing his petition, disputed that court's jurisdiction. From the Family Court's decision that it had jurisdiction, she appealed. That appeal is now pending in the Florida Third District Court of Appeals. ⁵

The federal District Court treated the pleading filed before it as an application for review of the INS order staying deportation, and denied it on the basis that the District Director has discretion to determine whether to proceed with or to stay a deportation, and that no abuse of discretion had been shown. The District Judge added:

A determination as to the legal custodian of Cynthia is a factor of the utmost importance as to whether or not she will be deported. For that reason, the Guardian Ad Litem's report supports the Director's stay to allow further proceedings to determine The Johns and Mrs. Macias-Rosales both filed a new appeal from this order, apparently without noting our retention of jurisdiction in the habeas corpus action, Case No. 80-5135. Because the new appeal was separately docketed as Case No. 81-5062, and none of the parties called special attention to it or requested expedited action, the case was handled routinely as it should never have been and its pendency did not reach this panel's attention until briefing under the usual schedule was completed. Thus, the litigants, most of all Cynthia, who assuredly is the only completely innocent party, have again been victims of delays in the legal process.

what is in the best interests of Cynthia.

In March 1981, Cynthia was finally transferred from the CSB institution to the care of a foster family under CSB supervision. She was attended by an INS guard 24 hours a day until July 23, when the CSB succeeded in having the guard removed. She remains in the foster home, her stay indefinite, her future uncertain. Recognizing this, as soon as the case again reached our attention, we suggested oral argument by conference telephone. All parties consented to this procedure and the case was orally argued. We now order the two nominally separate matters consolidated and consider both in this opinion.

I.

Two INS hearings and a sheaf of ex parte representations by those who contend for Cynthia's custody leave the history of her separation from her mother and her entry into the United States still disordered. The following facts are culled from the INS hearing and the many documents filed in the various proceedings to which Cynthia has been subjected.

It appears certain that Cynthia is an alien, of Mexican nationality, and that Angela Macias-Rosales is Cynthia's natural mother. Mrs. Macias-Rosales is 33 years of age, has two children, a girl about three years old and a boy about two years old, who reside with her in Rosarito, Baja California, where she now operates a restaurant. Whether she is married to the person who is the father of these children and of Cynthia is disputed. There are representations that this man is married to someone else and cannot obtain a divorce. There is an account that Mrs. Macias-Rosales has two older...