Massieu v. Reno

• Decision Date: 28 February 1996
• Docket Number: Civil Action No. 96-104 (MTB).
• Citation: 915 F. Supp. 681
• Parties: Mario Ruiz MASSIEU, Plaintiff, v. Janet RENO, In Her Capacity as the Attorney General of the United States; Warren Christopher, In His Official Capacity as Secretary of State of the United States; United States Department of Justice Immigration and Naturalization Service; Warren A. Lewis, In His Capacity as District Director of the Immigration and Naturalization Service; and Demetrius Georgakopoulos, In His Capacity as Assistant District Director, Investigations, Defendants.
• Court: U.S. District Court — District of New Jersey

915 F. Supp. 681

Mario Ruiz MASSIEU, Plaintiff, v. Janet RENO, In Her Capacity as the Attorney General of the United States; Warren Christopher, In His Official Capacity as Secretary of State of the United States; United States Department of Justice Immigration and Naturalization Service; Warren A. Lewis, In His Capacity as District Director of the Immigration and Naturalization Service; and Demetrius Georgakopoulos, In His Capacity as Assistant District Director, Investigations, Defendants.

Civil Action No. 96-104 (MTB).

United States District Court, D. New Jersey.

February 28, 1996.

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Fleming, Roth & Fettweis by Cathy A. Fleming, Newark, New Jersey, J.A. Canales, Canales & Simonson, Corpus Christi, TX, for Plaintiff.

Gary G. Grindler, Deputy Assistant Attorney General, David J. Kline, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Defendants.

OPINION

BARRY, District Judge.

Plaintiff, Mario Ruiz Massieu, seeks a permanent injunction enjoining the deportation proceeding instituted against him pursuant to 8 U.S.C. ž 1251(a)(4)(C)(i) and a declaration that the statute, which has not previously been construed in any reported judicial opinion, is unconstitutional. That statute, by its express terms, confers upon a single individual, the Secretary of State, the unfettered and unreviewable discretion to deport any alien lawfully within the United States, not for identified reasons relating to his or conduct in the United States or elsewhere but, rather, because that person's mere presence here would impact in some unexplained way on the foreign policy interests of the United States. Thus, the statute represents a breathtaking departure both from well established legislative precedent which commands deportation based on adjudications of defined impermissible conduct by the alien in the United States, and from well established precedent with respect to extradition which commands extradition based on adjudications of probable cause to believe that the alien has engaged in defined impermissible conduct elsewhere.

Make no mistake about it. This case is about the Constitution of the United States and the panoply of protections that document provides to the citizens of this country and those non-citizens who are here legally and, thus, here as our guests. And make no mistake about this: Mr. Ruiz Massieu entered this country legally and is not alleged to have committed any act within this country which requires his deportation. Nor, on the state of this record, can it be said that there exists probable cause to believe that Mr. Ruiz Massieu has committed any act outside of this country which warrants his extradition, for the government has failed in four separate proceedings before two Magistrate Judges to establish probable cause. Deportation of Mr. Ruiz Massieu is sought merely because he is here and the Secretary of State and Mexico have decided that he should go back.

The issue before the court is not whether plaintiff has the right to remain in this country beyond the period for which he was lawfully admitted; indeed, as a "non-immigrant visitor" he had only a limited right to remain here but the right to then go on his way to wherever he wished to go. The issue, rather, is whether an alien who is in this country legally can, merely because he is here, have his liberty restrained and be forcibly removed to a specific country in the unfettered discretion of the Secretary of State and without any meaningful opportunity to be heard. The answer is a ringing "no".

I.

The facts of this case read more like a best-selling novel than a typical deportation proceeding. Mario Ruiz Massieu, a citizen of Mexico, is a member of one of Mexico's most influential and politically active families, and, in recent years, has occupied several positions at the upper-most echelons of the Mexican government. For much of the past twenty years, Mr. Ruiz Massieu lived an academic life both as a professor and director of the National University of Mexico. During that time, he authored a number of books on topics such as education, history, law and politics. In 1993, however, Mr. Ruiz Massieu was thrust into the vanguard of Mexican politics as a member of the Institutional Revolutionary Party ("the PRI"), Mexico's only established ruling party. He was appointed Deputy Attorney General in 1993, Under Secretary for the Department of Government in 1994, and Deputy Attorney General, again, in May of 1994.¹

On September 28, 1994, Mr. Ruiz Massieu's brother, Jose Francisco Ruiz Massieu ÔÇö Secretary General of the PRI and an outspoken critic of the Mexican political system ÔÇö was assassinated.² Within hours, Mario Ruiz Massieu, as Deputy Attorney General, began an investigation into his brother's murder. In the ensuing weeks, fourteen people were apprehended and indicted as part of a conspiracy uncovered through Mr. Ruiz Massieu's investigatory efforts. Many of the arrested conspirators named Manuel Munoz Rocha, a PRI official, as the architect of the conspiracy. Mr. Munoz Rocha, however, was shielded by official immunity, and could not be interviewed by the Attorney General's office in connection with the case. Mr. Ruiz Massieu requested that President Carlos Salinas de Gortari waive Rocha's immunity, a request that the PRI vigorously opposed. Eventually, the immunity was waived, but not before Mr. Munoz Rocha had disappeared. He was never interviewed or arrested, and remains unaccounted for to this day.

Fifty-seven days after his brother's assassination, Mr. Ruiz Massieu resigned as Deputy Attorney General and withdrew his membership in the PRI. In a dramatic and widely publicized speech on November 23, 1994, Mr. Ruiz Massieu announced that he was resigning from both his office and his party because of the PRI's continuous efforts to frustrate his investigation into his brother's murder. Specifically, he alleged that the PRI was obstructing his search for the persons who might have ordered former Deputy Munoz Rocha to actÔÇöpersons whom Mr. Ruiz Massieu alleged to be very high-ranking members of the PRI.

In February of 1995, Mr. Ruiz Massieu published a book elaborating on the themes of his resignation address entitled Yo Accuso: Denuncia De Un Crimen Politico ("I Accuse: Denunciation of a Political Crime"). Immediately, Mexican authorities alleged that Mr. Ruiz Massieu committed the crimes of intimidation, concealment and "against the administration of justice" (a crime analogous to obstruction of justice in this country) in connection with the investigation of his brother's assassination. Contemporaneously, Mr. Ruiz Massieu claimed that he and his family began to receive both death and kidnapping threats. On March 2, 1995, he appeared for an official interrogation before Mexican authorities concerning the allegations of his criminal activity committed while in office. (See 1/11/96 Bond Memorandum, Fleming Aff.Exh. K.)

Later that same day, Mr. Ruiz Massieu and his family lawfully entered the United States as non-immigrant visitors at Houston, Texas, where they have owned a home since October of 1994. After remaining at their Houston home for the night, the family boarded a plane en route to Spain. When the plane touched down at Newark Airport on March 3, 1995, Mr. Ruiz Massieu was arrested by United States Customs officials, pursuant to 31 U.S.C. ž 5316, on a charge of reporting only approximately $18,000 of the $44,322 in his possession. The charge was never pursued and was subsequently dismissed at the government's request.

On March 5, 1995, two days after his arrest in Newark, a Mexican court issued an arrest warrant for Mr. Ruiz Massieu charging him with intimidation, concealment, and "against the administration of justice." The following day, at Mexico's request, the United States presented a complaint for Mr. Ruiz Massieu's provisional arrest and sought his extradition to face the charges set forth in the Mexican arrest warrant. On June 9, 1995, a Mexican court consolidated the allegations into a single charge of "against the administration of justice".³

On June 13, 1995, the first extradition proceeding began before Magistrate Judge Ronald J. Hedges. After lengthy hearings at which both the government and Mr. Ruiz Massieu presented documentary evidence and oral testimony, Magistrate Judge Hedges declined to issue a certificate of extraditability. In so doing, he determined that the government had failed to demonstrate even probable cause to believe that Mr. Ruiz Massieu committed the crimes charged. (Tr. of 6/22/95 at 79, Fleming Aff.Exh. A.)

Significantly, Magistrate Judge Hedges also found that many of the statements submitted by the government were "incredible and unreliable", id., and might have been altered to remove certain recantations and exculpatory statements. In addition, he found, and the government did not deny, that multiple statements were procured by torture inflicted by the Mexican authorities, including the inculpatory testimony of one of the government's primary affiants. Id. at 73, 79.

The government had lost its case, but not its will. On June 20, 1995, two days before Magistrate Judge Hedges issued his initial opinion, Mexico filed its second request for extradition based on newly filed charges of embezzlement. (Complaint # 6082G-01 filed June 20, 1995.) The charges focused on the $9,000,000 in the Houston bank account and 2,500,000 pesos allegedly disbursed without adequate documentation while Mr. Ruiz Massieu was in office. (Opinion of 9/25/95, Fleming Aff.Exh. B.) In an opinion filed September 25, 1995, Magistrate Judge Hedges again declined to issue a certificate of extraditability on the ground that the government had failed to demonstrate probable cause, or present any evidence whatsoever, that the funds had been illegally obtained or disbursed....