Why is This U.S Citizen in Immigration Detention?

We elect to use Respondent in place of an actual name for privacy reasons. In this case, respondent is 35-year-old a native of Mexico who was lawfully admitted to the United States On June 29, 1993. Respondent was lawfully admitted for permanent residence; however, he never physically received his lawful Permanent Resident Card. Accordingly respondent demonstrated his objective and official manifestations of intent to reside permanently in the United States based on facts to be accended later in this article. The record, in this case, reflects that the respondent was born out-of-wedlock in Tijuana B.C. Mexico on February 24, 1980. Respondent was a beneficiary of I-130  [Immigration petition for relative, in this case, his mother] filed on March 11, 1991, and later approved on April 20, 1991 (Receipt # WAC-91-134-0 XXXX). Respondent’s parents never married each other. Respondent resided in his mother’s legal custody. The respondent’s biological mother became a naturalized United States Citizen on October 18, 1996.

On April 29, 2014, The Department of Homeland Security (DHS, formerly the Immigration and Naturalization Service) served the respondent with Notice to Appear before Immigration Judge.
In the NTA, DHS alleged that on May 9, 2013, the Respondent convicted in Superior Court of San Diego, California for the offense of carjacking in violation of Section 215(a) of the California Penal Code. On basis of above alleged-noted offense, the DHS also charged the respondent pursuant to provisions of Section 212 (a)(6)(A)(i) of the INA and Section 212(a)(2)(I) (i)(I) and initiated removal proceedings. Respondent was taken into custody May 05,2014 pursuant to Section 240 of the Act. Respondent remains currently detained by Department of Homeland Security at DHS/ICE Otay -Mesa Detention Facility. {Civic Core}.

On May 29, 2014, DHS filed a notification pursuant to the Notice of Criteria in Franco-Gonzalez v. Holder, No. CV 10-02211, 2013 U.S. Dist. LEXIS 186258, 2013 WL 3674492, indicating the respondent had been diagnosed with Mental Health Diagnosis of Schizophrenia, antisocial disorder and psychotic disorder.

On September 24, 2014, Respondent through the office of his former counsel on record, filed N-600 application in an effort to prove that he is derivative United States Citizen through Naturalization of his Mother which took place on October 18, 1996, when respondent was 16 yrs old. On December 17, 2014, the respondent applied for asylum, withholding of removal under the Act, and relief under Convention Against Torture.
On February 15, 2015, respondent’s N-600 application was denied, by USCIS San Diego District Office. On March 13, 2015, respondent through the help of other inmates timely filed Form I-290 B accordingly and Statement of Notice of Appeal.
On March 09 2015, a merits hearing on immigration relief was held, the immigration judge (“IJ”) denied all applied forms of relief and ordered respondent removed to Mexico from the United States. In lieu of USCIS decision, respondent was within statutorily right to appeal Agency February 18, 2015, decision. See Section 5 U.S.C 557(b) of the Administrative Procedure Act (APA).

Apart from accented issues under reliefs that respondent applied for, In a normal setting pursuant to 8 U.S.C § 1252 (a) (5) provides that where an order of removal is entered against a petitioner, and “if the petitioners claim to be a National of the United States, the Federal Court shall decide the claim.” As here respondent did base his challenge to removal on his purported American citizenship status. Under Rivera,394 F.3d {511 F.3d 888} at 1137” the Constitution is violated when a person with a non-frivolous claim to U.S. citizenship is deported without receiving a judicial determination of that claim.” 394 F.3d at 1140.  Until the claim of citizenship is resolved, the propriety of the entire proceeding is in doubt.  ‘Jurisdiction in the executive to order deportation exists only if the person arrested is an alien. Under the plain language of INA 242(a) (2) (c), the Federal Court is permitted to review issues of whether petitioner is an Alien, removable, having committed a disqualifying offense. As here, DHS and BIA failed to sufficiently establish the respondent  Alienage. See; 8 U.S.C. §§ 1252 (b) (5) 1421 (c) . In an alternative,  AAO maintains plenary power to review each appeal on a de novo basis. 5 U.S.C. § 557(b) (On appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision except as it may limit the issues on notice or by rule.); see also, Janka v. U.S. Dept. of Transp., NTSB, 925 F.2d 1147, 1149 (9th Cir. 1991). Section 557(b) of the Administrative Procedure Act (APA), 5 U.S.C. 557(b), provides that an initial agency decision is not final if there is an appeal to, or review on motion of, the agency within time provided by rule.

AS IT IN THIS CASE  because there is a pending appeal, AAO has not issued a final decision on the instant proceeding. {Appellant citizenship claim}Moreover, Respondent-Mother in connection with 1991 “Immigration Petition for Relative” which was approved on April 20, 1991, submitted FORM I-601 “APPLICATION FOR WAIVER OF GROUNDS OF EXCLUDABILITY, which clearly states Respondent’s mental condition, along with the required medical evaluations by duly licensed doctors. From the Court documents, neither the Judge nor counsel for the U.S. government, inquired as to whether a sixteen-year-old with a chronic mental condition whose physical manifestations creates a life that is both dysfunctional and destructive, had the intellectual wherewithal to appreciate the gravity of his first deportation proceedings, especially as Counsel for the government had access to such documentation.

The fact that the Government deported respondent in 1996 as a Juvenile, it can not be said that issue is not before the court simply because the issues that raised from that proceedings does have probative value as the Government has relied on that case in different occasions, including basing its 2001 decision that appellant his deportable and, inter alia that he has been previously removed from the United States, forming an essential element of  charge offense (as the Government is charging Appellant with Section 212 (a)(6)(A)(i) of the Immigration and Nationality Act ( Alien present in the United States without being admitted or paroled ).  Should the Court find that under such deportation were improperly initiated, the current decisions will also be tainted by the same fruits of the poisonous tree and under  FEDERAL JUVENILE DELINQUENCY ACT, 18 U.S.C. 5031-5042 and agency own regulations for notice requirements at 8 C.F.R § 103.8(c)(i)  and 8 C.F.R.§ 103.8 (c)(2)(ii) [1] for mentally incompetent, the illegality should void subsequent deportation orders. In re Garcia-Flores, 17 I. & N. 325, 328 (adopting the Ninth Circuit’s “prejudice” test to determine whether a violation harmed the respondent interests “in such a way as to affect potentially the outcome of their deportation proceeding” (citing United States v. Calderon-Medina, 591 F.2d 529, 532 (9th Cir. 1979))); {17 I. & N. 325, 329} (“We will accordingly remand  to allow the respondent the opportunity to demonstrate that the investigating officer’s action prejudiced her interests that were protected by the regulation and that such prejudice affected the outcome of the deportation proceedings.”) citation ommitted. Based on aforementioned, there is no injury to the Government or the public where development’s in this case prompt reexamination of the historical evolution of exclusion doctrine, a reexamination that reveals a striking discontinuity between discourse and doctrine although the Court’s language has steadfastly maintained that the Power to exclude is absolute, the case law tells more intricate tale.

Heretofore; the public can benefit central to our concept of due process, that government officials no less than private citizens are bound by rules of law. Where individual interests are implicated, the Due Process Clause requires that an executive agency adheres to the standards by which it professes its action to be judged. See Vitarelli v. Seaton, supra, at 547. Administrative proceedings in which a petitioner who has a valid claim of U.S. Citizenship may be ordered deported from the United States involve the potential deprivation of a significant liberty interest and must be conducted according to the principles of fundamental fairness and substantial justice. ©Textbooksetrade

PLEASE Visit our site for more discussions on accented issues in regard to respondent valid U.S Citizenship Claim See: US National Under Child Citizenship Act and Juvenile Delinquency.

[1]          The Second and Ninth Circuits have both found that the statute, although textually silent as to the issue, should be interpreted as requiring service upon a minor’s closest adult relative. See; Llanos-Fernandez v. Mukasey, 535 F.3d 79 (2d Cir. 2008) (granting a motion to reopen a removal order when a child who was fourteen years old at the time of the proceedings argued that the agency failed to provide notice to his uncle, currently acting as his legal guardian); Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004)


  • OpenJurist
  • Law Justia.com
  • FindLaw.com
  • The US Government Publishing Office
  • Picture by likeden



One thought on “Why is This U.S Citizen in Immigration Detention?

Comments are closed.