IN THE UNITED STATES DISTRICT COURT                     FOR THE MIDDLE DISTRICT OF TENNESSEE                              ...
proceeding in November 2010. As a result, the Immigration Court vacated his removal order.Mr. Garcia’s reopened immigratio...
JURISDICTION AND VENUE        4.      This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 5U.S.C....
removal proceedings that produced his removal order.3 Following the entry of the removal order,Mr. Garcia retained undersi...
is responsible for Mr. Garcia’s removal proceeding. As Chief Counsel for the government in thatproceeding, Ms. Raborn expr...
years, Mr. Virula engaged in a pattern of unauthorized practice of law that targeted vulnerableMiddle Tennessee immigrants...
18.   After Mr. Garcia’s removal from the United States, he prevailed in his motion toset aside the final order of removal...
24.     On October 21, 2011, the Immigration Court ruled on Mr. Garcia’s motion forsubpoena and DHS’s motion to set a new ...
mentioned March 25, 2011 letter. ICE trial counsel indicated that Immigration and CustomsEnforcement was now prepared to f...
entitled to return to the United States status quo ante at the time of the (now-vacated) removalorder on January 20, 2010 ...
to facilitate his parole into the United States. Because government offices in Guatemala willapparently be closed in advan...
by, inter alia, facilitating aliens’ return to the United States”); Spence v. Holder, 414 Fed. App’x637, 640 n.4 (5th Cir....
acted arbitrarily and capriciously and otherwise contrary to law in violation of, inter alia,Sections 240(b)(2)(B) and 240...
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H Garcia v DHS CV-000354 M.D. TN filed 4-5-12

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H Garcia v DHS CV-000354 M.D. TN filed 4-5-12

  1. 1. IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISIONHAIRO GARCIA, ) ) Plaintiff, ) ) v. ) Civil Action No. __________ )DEPARTMENT OF HOMELAND )SECURITY; JANET NAPOLITANO, )Secretary of Homeland Security, UNITED )STATES IMMIGRATION AND CUSTOMS )ENFORCEMENT AGENCY; JOHN )MORTON, Director, U.S. Immigration and )Customs Enforcement; GLENDA RABORN, )Chief Counsel, U.S. Immigration and Customs )Enforcement, New Orleans Office of Chief )Counsel; PHILIP MILLER, Field Office )Director, U.S. Immigration and Customs )Enforcement New Orleans Field Office; )JAMES DINKINS, Executive Associate )Director, U.S. Immigration and Customs )Enforcement, Homeland Security )Investigations, ) ) Defendants. ) VERIFIED COMPLAINT Comes now the Plaintiff, by and through his undersigned counsel, and states for hisVerified Complaint as follows: INTRODUCTION 1. Mr. Garcia is a citizen and national of Guatemala. An Immigration Court orderedhim removed to Guatemala in January 2010. Over the strenuous objections of his counsel,1 U.S.Immigration and Customs Enforcement (“ICE”) executed the removal order in August 2010. Mr.Garcia subsequently prevailed in a post-order motion to reconsider certain aspects of removal1 This and all other references to “undersigned counsel” refer to Mr. Garcia’s immigrationattorney, Elliott Ozment. 1 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 1 of 18 PageID #: 1
  2. 2. proceeding in November 2010. As a result, the Immigration Court vacated his removal order.Mr. Garcia’s reopened immigration proceeding is currently pending in the Memphis ImmigrationCourt. His next hearing is currently scheduled for April 10, 2012. 2. Over the past thirteen months, undersigned counsel has sought to obtain thenecessary assistance of Defendants to facilitate Mr. Garcia’s return to the United States. Over sixmonths ago, a federal immigration judge requested that the Department of Homeland Security(“DHS”) arrange for the parole of Mr. Garcia into the United States so that he may participate inhis removal proceeding. Despite its repeated assurances to the contrary, DHS has delayed andimpeded facilitating Mr. Garcia’s lawful return to the United States. These delays andimpediments have forced Mr. Garcia to miss multiple plane flights and immigration courthearings. As long as DHS continues to unnecessarily and unreasonable delay Mr. Garcia’sreturn, his immigration case will remain in indefinite limbo, and his three young U.S. Citizenchildren – including a son who recently survived brain surgery – will face severe, unwarrantedhardship. 3. Defendants’ actions and omissions are part of a larger national failure by thefederal government to live up to the promises the Solicitor General made to the United StatesSupreme Court in Nken v. Holder. Chief Justice Roberts, writing for the Court, expressly reliedon these promises in deciding Nken. Specifically, the government represented that it hadprocedures in place for facilitating the return of aliens who prevail in post-removal motions andjudicial review. As Mr. Garcia’s case and others around the country painfully demonstrate, theserepresentations are “a bit of a shuffle.” See Nat’l Immigration Project of the Nat’l Lawyers Guildv. Dept. of Homeland Security, Case No. 3:11-cv-3235, Doc. No. 26 (S.D.N.Y. Feb. 7, 2012.Unfortunately for Mr. Garcia and his children, Defendants have lost his case in the shuffle. 2 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 2 of 18 PageID #: 2
  3. 3. JURISDICTION AND VENUE 4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 5U.S.C. § 702 (Administrative Procedure Act (“APA”)), and 28 U.S.C. §§ 2201 and 2202(declaratory relief). Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(1) becausethe Department of Homeland Security and U.S. Immigration and Customs Enforcement reside inthis District, and pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the eventsgiving rise to Plaintiff’s claims occurred in this District. PARTIES 5. Plaintiff Hairo Garcia was ordered removed from the United States on January20, 2010. Prior to his removal in August 2010, Mr. Garcia had lived in the United Statescontinuously since his entry as a child. Mr. Garcia’s mother fled to the U.S. following thekidnapping and murder of his father and uncle by government soldiers in Guatemala inretaliation for their political activities. She is now a Lawful Permanent Resident of the UnitedStates. Throughout most of Mr. Garcia’s adult life, he had valid employment authorization fromU.S. Citizenship and Immigration Services. In 2005, Elmer Virula filed an ill-fated immigrationapplication for Mr. Garcia that ultimately led ICE to initiate removal proceedings against him.2Timothy Darnell Flowers then performed the lion’s share of Mr. Garcia’s representation in the2 Mr. Virula is no stranger to this Court, which sentenced him to 24 months imprisonmentin December 2011. See United States v. Virula, Doc. No. 74, 3:10-cr-00076 (M.D. Tenn. Dec. 9,2011) (Trauger, J.). In addition, Mr. Virula entered into an agreement with the TennesseeAttorney General and Reporter in 2008 arising out of his unauthorized practice of law, of whichMr. Garcia was a victim. See “Defendants in Alleged Unauthorized Practice of Law in MiddleTennessee Immigrant Community Agree to Stop Unlawful Conduct” (Mar. 19, 2008) (availableat http://www.tn.gov/attorneygeneral/press/2008/story/pr16.pdf). 3 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 3 of 18 PageID #: 3
  4. 4. removal proceedings that produced his removal order.3 Following the entry of the removal order,Mr. Garcia retained undersigned counsel. As a result of counsel’s post-order filings, anImmigration Judge vacated Mr. Garcia’s removal order on November 30, 2010. 6. Defendant Department of Homeland Security is the federal agencyencompassing U.S. Immigration and Customs Enforcement (“ICE”), which is responsible for,inter alia, the detention and removal of non-citizens and enforcement of the Immigration andNationality Act (“INA”), and U.S. Customs and Border Patrol (“CBP”), which is responsible for,inter alia, inspecting and paroling aliens into the United States. 7. Defendant Janet Napolitano is the Secretary of the Department of HomelandSecurity, which has executive authority over Defendant ICE. She is sued in her official capacity.Ms. Napolitano is charged with the administration and enforcement of the Immigration andNationality Act pursuant to INA § 103(a). 8. Defendant Immigration and Customs Enforcement is the component withinDHS that is responsible for the detention and removal of non-citizens, as well as their return tothe United States following successful post-removal motions and judicial review. 9. Defendant John Morton is the Director of ICE. Mr. Morton leads the detentionand removal functions of ICE. He is sued in his official capacity. 10. Defendant Glenda Raborn is the Chief Counsel of ICE’s New Orleans Office ofthe Chief Counsel. She is sued in her official capacity. The New Orleans Office of Chief Counsel3 Just before Mr. Garcia was removed from the United States, Mr. Flowers was suspendedfrom practice before the nation’s immigration courts. See In re Flowers, Executive Office ofImmigration Review File No. D2010-223 (Aug. 11, 2010) (available athttp://www.justice.gov/eoir/profcond/ImmediateSuspensions/FlowersTimothyD_ImmSuspension.pdf). This suspension occurred as a result of Mr. Flowers’ suspension from practice of law inTennessee for one year on June 4, 2010. See Flowers v. Bd. of Prof’l Responsibility, 314 S.W.3d882 (Tenn. 2010) (discussing serious deficiencies in Mr. Flowers’ representation of immigrantsstretching over nearly a decade). 4 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 4 of 18 PageID #: 4
  5. 5. is responsible for Mr. Garcia’s removal proceeding. As Chief Counsel for the government in thatproceeding, Ms. Raborn expressly refused to facilitate the timely return of Mr. Garcia, and thusensured that he was unable to attend at least one of his immigration court hearings following thereopening of Mr. Garcia’s immigration case. 11. Defendant Philip Miller is the Field Office Director of ICE’s New Orleans FieldOffice. He is sued in his official capacity. The New Orleans Field Office encompasses the ICEEnforcement and Removal Office with responsibility over executing removal orders andfacilitating returns. As Field Office Director, Mr. Miller has failed to facilitate the timely returnof Mr. Garcia and ensured that he is unable to attend his upcoming immigration hearing. 12. Defendant James Dinkins is the Executive Associate Director of HomelandSecurity Investigations (“HSI”) for ICE. He is sued in his official capacity. Upon informationand belief, HSI is the office with primary responsibility for facilitating parole of Mr. Garcia intothe United States. The repeated failure of HSI to timely and expeditiously approve Mr. Garcia’sparole into the U.S. ensured that is unable to attend his upcoming immigration hearing. FACTS 13. Mr. Garcia fled his home country as a child to join his mother and seek politicalasylum in the United States. An asylum application was submitted on his behalf in 1992. For thenext thirteen years, Mr. Garcia grew up, studied, worked, married, and fathered children as anotherwise law-abiding U.S. resident. Prior to his immigration proceedings, Mr. Garcia’s onlyrun-in with the law was a ten-day period of false imprisonment pursuant to a mistakenly issuedwarrant. 14. In 2005, Mr. Garcia sought out assistance to obtain a more permanentimmigration status. Unfortunately, the provider of that assistance was Elmer Virula. For several 5 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 5 of 18 PageID #: 5
  6. 6. years, Mr. Virula engaged in a pattern of unauthorized practice of law that targeted vulnerableMiddle Tennessee immigrants of limited means, often with disastrous consequences. Theapplication Mr. Virula filed for Mr. Garcia was denied. Federal immigration authorities thenplaced Mr. Garcia in removal proceedings. 15. Mr. Garcia’s troubles continued when he hired Mr. Timothy Darnell Flowers. Mr.Flowers dragged Mr. Garcia’s case out for nearly three years over nine separate hearings. Itappears from the record that Mr. Flowers neglected to timely file both the application for relief(cancellation of removal) and all of the evidence supporting it, despite dire warnings from theImmigration Judge of the consequences for failing to do so. Throughout his representation of Mr.Garcia, Mr. Flowers was battling formal findings by a Tennessee Board of ProfessionalResponsibility panel that he had violated several rules of professional responsibility inrepresenting other immigration clients. See Flowers, 314 S.W.3d at 888. 16. On January 20, 2010, an Immigration Judge ordered Mr. Garcia removed toGuatemala. Mr. Garcia subsequently retained undersigned counsel to address the deficiencies inMr. Flowers’ representation that led to his removal order. In April 2010, undersigned counselfiled a Motion to Reopen the removal proceeding based upon ineffective assistance of counsel. 17. At the request of ICE Nashville Fugitive Operations Unit Deportation Officer EricLim, Mr. Garcia voluntarily reported for an interview at the ICE Office in Nashville in July2010. Officer Lim promptly took Mr. Garcia into ICE custody, where he remained until hisremoval from the United States on or around August 25, 2010. 6 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 6 of 18 PageID #: 6
  7. 7. 18. After Mr. Garcia’s removal from the United States, he prevailed in his motion toset aside the final order of removal.4 Consequently, he received a new hearing date of April 12,2011. 19. On March 14, 2011, Mr. Garcia’s undersigned counsel faxed a request toDefendant Raborn requesting her assistance in facilitating Mr. Garcia’s return so that he couldexercise his statutory right to appear at his hearings. See Immigration and Nationality Act(“INA”) § 240(b)(2)(B). See also INA § 240(b)(4)(B). 20. On March 22, 2011, Mr. Garcia’s undersigned counsel requested that theImmigration Court issue a subpoena for Mr. Garcia. 21. By letter dated March 25, 2011, Defendant Raborn denied counsel’s request tofacilitate Mr. Garcia’s return. She stated “the Department [of Homeland Security] declines toprovide correspondence to the Department of State requesting the issuance of a nonimmigrantvisa for Mr. Garcia[.].” 22. To avoid the entry of an in absentia removal order upon Mr. Garcia’s failure toappear in person at the upcoming hearing, undersigned counsel requested that the ImmigrationCourt waive Mr. Garcia’s personal appearance. When Mr. Garcia failed to appear at his April 12,2011 hearing, rather than ordering Mr. Garcia removed in absentia, the Immigration Judgecontinued the hearing indefinitely. 23. On August 4, 2011, DHS moved the Immigration Court to set another hearingdate.4 See Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) (recognizing aliens’ statutory right tofile post-order motions even after removal from the U.S., and rejecting the government’sinterpretation to the contrary). 7 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 7 of 18 PageID #: 7
  8. 8. 24. On October 21, 2011, the Immigration Court ruled on Mr. Garcia’s motion forsubpoena and DHS’s motion to set a new hearing. The Court determined issuing the subpoenawould be a futile exercise because “there is no legal method by which Respondent could comeinto the United States without parole [i.e., permission from DHS],” and the Immigration Courtdoes not have jurisdiction to order an alien’s parole into the United States. The ImmigrationCourt stated unequivocally that Mr. Garcia’s absence from a removal hearing would “be inviolation of [INA § 240(b)(2)(B) and INA § 240(b)(4)(B)].” Moreover, the Immigration Courtnoted Mr. Garcia’s “absence from the United States raises procedural due process problems.”The Immigration Court also observed that, “[i]f a respondent physically present outside of theUnited States was in proceedings before the IJ, the Respondent’s inability to reenter the UnitedStates legally and attend his hearing would be ‘fundamentally unfair’ in the Sixth Circuit’sapplication of due process to removal proceedings.” (citing Lin v. Holder, 565 F.3d 971, 979 (6thCir. 2010)). In addition, the Immigration Court noted that if Respondent failed to appear at animmigration court hearing, he could be ordered removed in absentia. INA § 240(b)(5)(A). TheCourt set a new hearing date of December 20, 2011. In light of its findings, the Court orderedthat the first issue addressed at the upcoming hearing would be: whether DHS will agree to parole [Mr. Garcia] for the purpose of a re-trial of his cancellation of removal hearing. Accordingly, this Court requests that DHS as a matter of comity to assist in the reconstruction of this record, specifically by arranging the parole of [Mr. Garcia] into the United States for testimony. It is not inconceivable that the Sixth Circuit will ultimately issue such an order. 25. On December 14, 2011, undersigned counsel received a call from ICE trialcounsel out of the Memphis office indicating that Assistant Chief Counsel Monique Harris, withthe apparent authority of Defendant Raborn, reversed the position previously taken in the above- 8 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 8 of 18 PageID #: 8
  9. 9. mentioned March 25, 2011 letter. ICE trial counsel indicated that Immigration and CustomsEnforcement was now prepared to facilitate the return of Mr. Garcia to the United States. 26. Based on this information, Mr. Garcia bought a ticket on American Airlines toarrive at the Miami International Airport on December 18, 2011. 27. Undersigned counsel notified ICE local counsel in Memphis of Mr. Garcia’stravel plans on December 16, 2011 at 11:01 AM. 28. Defendant Raborn and Assistant Chief Counsel Harris were advised of Mr.Garcia’s travel plans by ICE trial counsel in Memphis on December 16, 2011 at 12:11 PM. 29. Shortly afterward, undersigned counsel received a call from an individual in ICEEnforcement and Removal Operations (“ERO”)’s New Orleans Field Office. That officialindicated that the necessary processes to authorize Mr. Garcia’s return could not be completed bythe date of Mr. Garcia’s scheduled travel. Mr. Garcia was thus unable to return to the UnitedStates in time for his December 20, 2011 hearing. 30. At the December 20, 2011 hearing, trial counsel for DHS, acting with theapparent authority of Defendant Raborn, represented to the Memphis Immigration Court thatDHS was fully prepared to facilitate Mr. Garcia’s return to the United States. The Courtscheduled a new hearing for February 21, 2012, with the understanding that Mr. Garcia would bepresent in the United States and in attendance at the hearing. 31. Prior to the February 21 hearing, undersigned counsel received a phone call froma person believed to be an official with ICE Homeland Security Investigations. That officialstated: “You do realize that Mr. Garcia will be detained upon his arrival.” Undersigned counselresponded that (a) this was not his understanding, (b) such detention was improper since Mr.Garcia was returning to attend his immigration court proceedings, and (c) Mr. Garcia was 9 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 9 of 18 PageID #: 9
  10. 10. entitled to return to the United States status quo ante at the time of the (now-vacated) removalorder on January 20, 2010 – i.e., he was entitled to return non-detained. The HSI officialindicated to undersigned counsel that she would explore the possibility of not detaining Mr.Garcia upon his return. 32. Shortly before the February 21 hearing, undersigned counsel’s office received aphone call from ICE ERO New Orleans Supervisory Detention and Deportation Officer(“SDDO”) Scott Warren indicating that Mr. Garcia would indeed be detained. 33. At the February 21 hearing, undersigned counsel advised the Immigration Judgeof the situation. ICE trial counsel advised the Court that the Office of Chief Counsel could donothing about the detention decision, and that this dispute could only be resolved by ICE ERO.The Immigration Judge likewise indicated that he did not have the jurisdiction to do anythingabout the threat of detention. 34. The Immigration Judge set a new hearing date of April 10, 2012. Once again, itwas the understanding of all parties and, upon information and belief, of the Immigration Court,that Mr. Garcia would be paroled in the United States and present at the April 10, 2012 hearing. 35. Relying on the representations made in the February 21, 2012 hearing, anddeciding to risk the possibility of detention upon arrival in the United States, Mr. Garcia changedhis departure date to April 3, 2012. His scheduled arrival also changed to the Chicago O’HareAirport at 1:50 AM on the morning of April 4, 2012. 36. Undersigned counsel advised SDDO Warren of these arrangements by letter sentvia FedEx and also via email on March 28, 2012. 37. Once again, when the time came to board the plane at 8:30 PM on April 3, Mr.Garcia was informed, through undersigned counsel, that DHS had not taken the necessary steps 10 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 10 of 18 PageID #: 10
  11. 11. to facilitate his parole into the United States. Because government offices in Guatemala willapparently be closed in advance of the upcoming Easter holiday, Mr. Garcia will not be able toobtain the necessary documents to board a plane to the United States prior to his April 10, 2011hearing. 38. For over one year, Mr. Garcia, through his undersigned counsel, has been tryingto return to the United States so that he may fully participate in his reopened removalproceeding, and, if he is successful, obtain lawful permanent residence in the United States. 39. Rather than utilizing any existing policy or practice for facilitating the return ofindividuals who prevail after being removed, DHS has engaged in a year-long pattern of refusal,impediment, and delay that has thus far blocked Mr. Garcia’s reentry into the United States. CLAIMS FOR RELIEF CLAIM I: VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT 40. All of the foregoing allegations are re-alleged and incorporated by reference. 41. Mr. Garcia is a person aggrieved by agency action under the AdministrativeProcedure Act, 5 U.S.C. §§ 701 et seq. By preventing Mr. Garcia’s return to the United States toparticipate in his removal proceeding, Defendants have acted arbitrarily and capriciously andotherwise contrary to law in violation of the Immigration and Nationality Act and 5 U.S.C. §706. 42. In recent years, the federal government has opposed motions to stay the executionof removal orders by promising to re-admit individuals such as Mr. Garcia who prevail in theirmotions to reopen after being removed from the United States. See, e.g., Brief for Respondent at44, Nken v. Holder, 556 U.S. 418 (2009) (“by policy and practice, the government accords alienswho were removed pending judicial review but then prevailed before the courts effective relief 11 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 11 of 18 PageID #: 11
  12. 12. by, inter alia, facilitating aliens’ return to the United States”); Spence v. Holder, 414 Fed. App’x637, 640 n.4 (5th Cir. 2011) (quoting the government’s statement in its brief that “[a]liens whoare removed may continue to pursue their petitions for review, and those who prevail can beafforded [sic] effective relief by facilitation of their return, along with the restoration of theimmigration status they had upon removal.”). Until very recently, courts have accepted thegovernment’s promises to be true. See, e.g., Nken, 556 U.S. at 556 (citing Government Br. at 44);Leiva-Perez v. Holder, 640 F.3d 962, 969 (9th Cir. 2011); Rodriguez-Barajas v. Holder, 624F.3d 678, 681 n.3 (5th Cir. 2010). And a number of courts, including the United States SupremeCourt, have relied on these government promises to conclude that removal does not constituteirreparable harm that would warrant a stay of removal. See Nken, 556 U.S. 556; Leiva-Perez, 640F.3d at 969. However, growing evidence demonstrates the government’s lawyers, including theU.S. Solicitor General, “were engaged in a bit of a shuffle.” Nat’l Immigration Project of theNat’l Lawyers Guild v. Dep’t of Homeland Security, Doc. No. 26, No. 11-cv-3235 (S.D.N.Y.Feb. 7, 2012) (Rakoff, J.). There is now “substantial evidence that the judicial process may havebeen impugned by incorrect information provided to the Supreme Court.” Id. See alsoDeclaration of Jessica Chicco, Lam v. Holder, No. 11-2576 (7th Cir. Mar. 5, 2012) (available athttp://www.nationalimmigrationproject.org/legalresources/J_Chicco_Declaration_for_Lam_v_Holder.pdf) 43. Despite its promises to the contrary – both in this case and in federal courts acrossthis country – the federal government has not facilitated Plaintiff’s return to the United Statesfollowing his successful motion to reopen his removal proceedings. In fact, in Mr. Garcia’s case,Defendants have made it more – not less – difficult for him to return. Thus, Defendants have 12 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 12 of 18 PageID #: 12
  13. 13. acted arbitrarily and capriciously and otherwise contrary to law in violation of, inter alia,Sections 240(b)(2)(B) and 240(b)(4)(B) of Immigration and Nationality Act and 5 U.S.C. § 706. CLAIM II: VIOLATION OF THE DUE PROCESS CLAUSE 44. All of the foregoing allegations are re-alleged and incorporated by reference. 45. “It is well established that the Fifth Amendment entitles aliens to due process oflaw in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). An alien who facesdeportation is entitled to a full and fair hearing of his claims and a reasonable opportunity topresent evidence on his behalf. The right to be present at one’s own removal proceeding isfundamental to due process. If an individual is outside of the United States, he cannot bephysically present and is substantially hindered in his ability to testify, present witnesses andevidence, consult with his attorneys, and cross-examine the government’s witnesses and examineits evidence. Each of these rights is a recognized due process right in removal proceedings. SeeKhan v. Gonzales, 148 Fed. App’x 303, 307 (6th Cir. 2005); Mikhailevitch v. INS, 146 F.3d 384,391 (6th Cir. 1998). 46. Mr. Garcia is now in removal proceedings, having prevailed on his motion toreopen and motion to reconsider. Although Plaintiff is entitled to due process in theseproceedings, Defendants have thus far deprived him of the ability to be present during hishearings. If Mr. Garcia is not returned to the United States, he will miss additional hearings andwill ultimately be ordered removed in absentia. Defendants have thus deprived and arecontinuing to deprive Plaintiff of a fundamentally fair hearing in violation of the Due ProcessClause to the Fifth Amendment to the U.S. Constitution. See Hassan v. Gonzales, 403 F.3d 429,436 (6th Cir. 2005). CLAIM III: VIOLATION OF THE IMMIGRATION AND NATIONALITY ACT AND THE FIFTH AMENDMENT 13 Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 13 of 18 PageID #: 13
  14. 14. Case 3:12-cv-00354 Document 1 Filed 04/05/12 Page 14 of 18 PageID #: 14
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