Tucson Ecumenical Council v. Ezell, CIV 88-127 TUC WDB.
| Decision Date | 07 February 1989 |
| Docket Number | No. CIV 88-127 TUC WDB.,CIV 88-127 TUC WDB. |
| Parties | TUCSON ECUMENICAL COUNCIL, Plaintiff, v. Harold EZELL, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Kenneth K. Graham, Law Office of William Risner, and Nancy Grey Postero, Keller & Postero, Tucson, Ariz., for plaintiff.
John S. Leonardo, Asst. U.S. Atty., Office of the U.S. Atty., Tucson, Ariz., for defendants.
This is an action by the Tucson Ecumenical Council, owner of a 1982 Dodge Aries vehicle, to recover from the Immigration and Naturalization Service (I.N.S.) said vehicle. The unresolved issues in the case were tried on August 29, 1988.
The vehicle was driven by David Kennon, a member of plaintiff group and a Christian minister. The vehicle contained a companion of his and three other persons, a woman and her two children. It is undisputed that the latter were citizens of Guatemala and did not have prior or proper documentation to be in this country and that the foregoing was known to Kennon and his companion, both U.S. citizens.
On June 15, 1987, the date of the seizure, a rancher notified government agents that a van and its occupants were parked on a dirt road near the United States-Mexico border, in what the government knew to be a well-used drug smuggling area. En route to this location, border patrol agents spotted a van matching the rancher's description. The van was stopped and the alien occupants detained.
Later, the agents were able to ascertain, by tracing tracks, that the aliens had been escorted from a point near the border to the parked van.
Kennon testified that the aliens had asked his organization for assistance several days prior to June 15th. They claimed to fear for their lives in Guatemala. The woman had lived in Los Angeles, California (without documentation) and had returned to Guatemala with a terminally ill daughter who wanted to die in her native land. After the daughter's death, the woman and two children made their way back to the U.S. border where they contacted plaintiff group.
Kennon testified he knew they lacked proper documentation. He testified his group didn't help them cross the border but that, once across, he intended to transport them to Tucson, Arizona, where they had an appointment with an attorney at 3:00 p.m. the following day, June 16th. Kennon testified that he felt the aliens would be rejected if they tried to get proper entry papers at the Douglas — or any other — border point of entry, but that if they presented themselves to an inland office of the Immigration and Naturalization Service, such as Tucson or Phoenix, they would be allowed to remain in the United States pending action on their application for legal status.
Erika Kreider, a lawyer devoting a substantial amount of time to immigration matters, was the attorney with whom the aliens had the appointment. She testified that they could have presented themselves to the border port of entry, where an INS officer, in his or her discretion, could admit or exclude the alien, detain the alien, or parole the alien into the United States.
These aliens could have presented themselves to a U.S. Consulate in Mexico, or the ports of entry at Douglas, Arizona, or Nogales, Arizona. They could have counseled with Attorney Kreider by phone or mail or by personally meeting with her, or other counsel, at the border.
On June 15th, the day of the seizure of the van, Kennon authored a letter to the District Director of the Immigration and Naturalization Service in Phoenix, Arizona. He mailed said letter from Tucson to Phoenix by certified mail on the same day. Kennon's testimony was that he had knowledge of the plans to assist these aliens on or about June 8.
The letter stated the nationality and number of the aliens, but refused to disclose their identity, date of entry or the like. It said, in part, that Kennon's group "is helping the ... refugees reach legal counsel in order to determine the best way for them to obtain legal status in the United States" (emphasis added).
It also gave the name, birthdate and "country of origin" of the bearer and stated no other information would be furnished without "my attorney" being consulted and present.
Additional facts and contentions will be presented below.
is guilty of a criminal offense. 8 U.S.C.A. § 1324(a)(1)(B) (West Supp.1988).
Plaintiff claims that Kennon had a good faith belief that he was not acting in furtherance of a violation of the law. Kennon bottoms his good faith belief on the following:
1. An affidavit by one Jesus Romo, an investigator for a law firm, made in behalf of that firm's client, a defendant in the 1985 "Sanctuary" trial held in the U.S. District Court in Tucson, Arizona (CR 85-008);1
2. An April, 1985, tract by A. Bates Butler III, justifying violation of the government's interpretation of the immigration laws;
3. His choosing "moral and humanitarian" law as having greater force than the government's interpretation of the immigration laws;
4. A speech by one Karen Parker (whom he described as "a legal expert") at a seminar;
5. His own, but unspecified, extensive study and research;
6. The Refugee Act of 1980 (8 U.S.C.A. § 1151 et seq. (West Supp.1988)).
The Court must weigh the reasonableness of his beliefs, and whether they are held in good faith, against all the circumstances of plaintiff's actions in the case.
The Romo affidavit, based in large part on hearsay, criticizes the Immigration and Naturalization Service for deporting aliens they determine are ineligible for entry. It contains other hearsay saying that I.N.S. policy is to inform a person requesting asylum to make application at the nearest U.S. Consulate in Mexico. It further states (also hearsay) that no "refugee" had ever asked for asylum at the Nogales port of entry. The Court finds that a reasonable person could not formulate a good faith belief based on this affidavit, either standing alone or in conjunction with the other items noted above. None of the conclusions in this affidavit would confer legal status on an undocumented alien.
The Butler tract contains historical and religious analyses justifying "civil disobedience" (his words) of the immigration laws. He refers to the government's policies of law interpretation and enforcement as "biased" and "perverted" while clearly acknowledging that it is well known that conduct such as Kennon's here is unlawful in the eyes of the government. He eloquently documents his disagreement with the law, but his opinion cannot form a basis for a...
To continue reading
Request your trial