h garcia v dhs cv-000354 m.d. tn filed 4-5-12

1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

HAIRO 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 his

Verified Complaint as follows:

INTRODUCTION

1. Mr. Garcia is a citizen and national of Guatemala. An Immigration Court ordered

him 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 removal

1 This and all other references to “undersigned counsel” refer to Mr. Garcia’s immigration

attorney, Elliott Ozment.

Case 3:12-cv-00354 Document 1 Filed 04/05/12 of 18 PageID #: 1

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 Immigration

Court. His next hearing is currently scheduled for April 10, 2012.

2. Over the past thirteen months, undersigned counsel has sought to obtain the

necessary assistance of Defendants to facilitate Mr. Garcia’s return to the United States. Over six

months 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 in

his removal proceeding. Despite its repeated assurances to the contrary, DHS has delayed and

impeded facilitating Mr. Garcia’s lawful return to the United States. These delays and

impediments have forced Mr. Garcia to miss multiple plane flights and immigration court

hearings. As long as DHS continues to unnecessarily and unreasonable delay Mr. Garcia’s

return, his immigration case will remain in indefinite limbo, and his three young U.S. Citizen

children – including a son who recently survived brain surgery – will face severe, unwarranted

hardship.

3. Defendants’ actions and omissions are part of a larger national failure by the

federal government to live up to the promises the Solicitor General made to the United States

Supreme Court in Nken v. Holder. Chief Justice Roberts, writing for the Court, expressly relied

on these promises in deciding Nken. Specifically, the government represented that it had

procedures in place for facilitating the return of aliens who prevail in post-removal motions and

judicial review. As Mr. Garcia’s case and others around the country painfully demonstrate, these

representations are “a bit of a shuffle.” See Nat’l Immigration Project of the Nat’l Lawyers Guild

v. 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.


3

JURISDICTION AND VENUE

4. This Court has jurisdiction pursuant to 28 U.S.C. § 1331 (federal question), 5

U.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) because

the Department of Homeland Security and U.S. Immigration and Customs Enforcement reside in

this District, and pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events

giving rise to Plaintiff’s claims occurred in this District.

PARTIES

5. Plaintiff Hairo Garcia was ordered removed from the United States on January

20, 2010. Prior to his removal in August 2010, Mr. Garcia had lived in the United States

continuously since his entry as a child. Mr. Garcia’s mother fled to the U.S. following the

kidnapping and murder of his father and uncle by government soldiers in Guatemala in

retaliation for their political activities. She is now a Lawful Permanent Resident of the United

States. Throughout most of Mr. Garcia’s adult life, he had valid employment authorization from

U.S. Citizenship and Immigration Services. In 2005, Elmer Virula filed an ill-fated immigration

application for Mr. Garcia that ultimately led ICE to initiate removal proceedings against him.2

Timothy Darnell Flowers then performed the lion’s share of Mr. Garcia’s representation in the

2 Mr. Virula is no stranger to this Court, which sentenced him to 24 months imprisonment

in 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 Tennessee

Attorney General and Reporter in 2008 arising out of his unauthorized practice of law, of which

Mr. Garcia was a victim. See “Defendants in Alleged Unauthorized Practice of Law in Middle

Tennessee Immigrant Community Agree to Stop Unlawful Conduct” (Mar. 19, 2008) (available

at http://www.tn.gov/attorneygeneral/press/2008/story/pr16.pdf).


www.tn.gov/attorneygeneral/press/2008/story/pr16.pdf

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, an

Immigration Judge vacated Mr. Garcia’s removal order on November 30, 2010.

6. Defendant Department of Homeland Security is the federal agency

encompassing 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 and

Nationality 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 Homeland

Security, 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 and

Nationality Act pursuant to INA § 103(a).

8. Defendant Immigration and Customs Enforcement is the component within

DHS that is responsible for the detention and removal of non-citizens, as well as their return to

the United States following successful post-removal motions and judicial review.

9. Defendant John Morton is the Director of ICE. Mr. Morton leads the detention

and 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 of

the Chief Counsel. She is sued in her official capacity. The New Orleans Office of Chief Counsel

3 Just before Mr. Garcia was removed from the United States, Mr. Flowers was suspended

from practice before the nation’s immigration courts. See In re Flowers, Executive Office of

Immigration Review File No. D2010-223 (Aug. 11, 2010) (available at

http://www.justice.gov/eoir/profcond/ImmediateSuspensions/FlowersTimothyD_ImmSuspension

.pdf). This suspension occurred as a result of Mr. Flowers’ suspension from practice of law in

Tennessee for one year on June 4, 2010. See Flowers v. Bd. of Prof’l Responsibility, 314 S.W.3d

882 (Tenn. 2010) (discussing serious deficiencies in Mr. Flowers’ representation of immigrants

stretching over nearly a decade).


www.justice.gov/eoir/profcond/ImmediateSuspensions/FlowersTimothyD_ImmSuspension.pdf

www.justice.gov/eoir/profcond/ImmediateSuspensions/FlowersTimothyD_ImmSuspension.pdf

5

is responsible for Mr. Garcia’s removal proceeding. As Chief Counsel for the government in that

proceeding, Ms. Raborn expressly refused to facilitate the timely return of Mr. Garcia, and thus

ensured that he was unable to attend at least one of his immigration court hearings following the

reopening of Mr. Garcia’s immigration case.

11. Defendant Philip Miller is the Field Office Director of ICE’s New Orleans Field

Office. He is sued in his official capacity. The New Orleans Field Office encompasses the ICE

Enforcement and Removal Office with responsibility over executing removal orders and

facilitating returns. As Field Office Director, Mr. Miller has failed to facilitate the timely return

of Mr. Garcia and ensured that he is unable to attend his upcoming immigration hearing.

12. Defendant James Dinkins is the Executive Associate Director of Homeland

Security Investigations (“HSI”) for ICE. He is sued in his official capacity. Upon information

and belief, HSI is the office with primary responsibility for facilitating parole of Mr. Garcia into

the United States. The repeated failure of HSI to timely and expeditiously approve Mr. Garcia’s

parole 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 political

asylum in the United States. An asylum application was submitted on his behalf in 1992. For the

next thirteen years, Mr. Garcia grew up, studied, worked, married, and fathered children as an

otherwise law-abiding U.S. resident. Prior to his immigration proceedings, Mr. Garcia’s only

run-in with the law was a ten-day period of false imprisonment pursuant to a mistakenly issued

warrant.

14. In 2005, Mr. Garcia sought out assistance to obtain a more permanent

immigration status. Unfortunately, the provider of that assistance was Elmer Virula. For several


6

years, Mr. Virula engaged in a pattern of unauthorized practice of law that targeted vulnerable

Middle Tennessee immigrants of limited means, often with disastrous consequences. The

application Mr. Virula filed for Mr. Garcia was denied. Federal immigration authorities then

placed 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. It

appears 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 the

Immigration 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 Professional

Responsibility panel that he had violated several rules of professional responsibility in

representing other immigration clients. See Flowers, 314 S.W.3d at 888.

16. On January 20, 2010, an Immigration Judge ordered Mr. Garcia removed to

Guatemala. Mr. Garcia subsequently retained undersigned counsel to address the deficiencies in

Mr. Flowers’ representation that led to his removal order. In April 2010, undersigned counsel

filed 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 Eric

Lim, Mr. Garcia voluntarily reported for an interview at the ICE Office in Nashville in July

2010. Officer Lim promptly took Mr. Garcia into ICE custody, where he remained until his

removal from the United States on or around August 25, 2010.


7

18. After Mr. Garcia’s removal from the United States, he prevailed in his motion to

set 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 to

Defendant Raborn requesting her assistance in facilitating Mr. Garcia’s return so that he could

exercise 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 the

Immigration Court issue a subpoena for Mr. Garcia.

21. By letter dated March 25, 2011, Defendant Raborn denied counsel’s request to

facilitate Mr. Garcia’s return. She stated “the Department [of Homeland Security] declines to

provide correspondence to the Department of State requesting the issuance of a nonimmigrant

visa for Mr. Garcia[.].”

22. To avoid the entry of an in absentia removal order upon Mr. Garcia’s failure to

appear in person at the upcoming hearing, undersigned counsel requested that the Immigration

Court 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 Judge

continued the hearing indefinitely.

23. On August 4, 2011, DHS moved the Immigration Court to set another hearing

date.

4 See Pruidze v. Holder, 632 F.3d 234 (6th Cir. 2011) (recognizing aliens’ statutory right to

file post-order motions even after removal from the U.S., and rejecting the government’s

interpretation to the contrary).


8

24. On October 21, 2011, the Immigration Court ruled on Mr. Garcia’s motion for

subpoena and DHS’s motion to set a new hearing. The Court determined issuing the subpoena

would be a futile exercise because “there is no legal method by which Respondent could come

into the United States without parole [i.e., permission from DHS],” and the Immigration Court

does not have jurisdiction to order an alien’s parole into the United States. The Immigration

Court stated unequivocally that Mr. Garcia’s absence from a removal hearing would “be in

violation of [INA § 240(b)(2)(B) and INA § 240(b)(4)(B)].” Moreover, the Immigration Court

noted 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 the

United States was in proceedings before the IJ, the Respondent’s inability to reenter the United

States legally and attend his hearing would be ‘fundamentally unfair’ in the Sixth Circuit’s

application of due process to removal proceedings.” (citing Lin v. Holder, 565 F.3d 971, 979 (6th

Cir. 2010)). In addition, the Immigration Court noted that if Respondent failed to appear at an

immigration court hearing, he could be ordered removed in absentia. INA § 240(b)(5)(A). The

Court set a new hearing date of December 20, 2011. In light of its findings, the Court ordered

that 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 trial

counsel out of the Memphis office indicating that Assistant Chief Counsel Monique Harris, with

the apparent authority of Defendant Raborn, reversed the position previously taken in the above-


9

mentioned March 25, 2011 letter. ICE trial counsel indicated that Immigration and Customs

Enforcement 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 to

arrive at the Miami International Airport on December 18, 2011.

27. Undersigned counsel notified ICE local counsel in Memphis of Mr. Garcia’s

travel 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 ICE

Enforcement and Removal Operations (“ERO”)’s New Orleans Field Office. That official

indicated that the necessary processes to authorize Mr. Garcia’s return could not be completed by

the date of Mr. Garcia’s scheduled travel. Mr. Garcia was thus unable to return to the United

States in time for his December 20, 2011 hearing.

30. At the December 20, 2011 hearing, trial counsel for DHS, acting with the

apparent authority of Defendant Raborn, represented to the Memphis Immigration Court that

DHS was fully prepared to facilitate Mr. Garcia’s return to the United States. The Court

scheduled a new hearing for February 21, 2012, with the understanding that Mr. Garcia would be

present in the United States and in attendance at the hearing.

31. Prior to the February 21 hearing, undersigned counsel received a phone call from

a person believed to be an official with ICE Homeland Security Investigations. That official

stated: “You do realize that Mr. Garcia will be detained upon his arrival.” Undersigned counsel

responded 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


10

entitled to return to the United States status quo ante at the time of the (now-vacated) removal

order on January 20, 2010 – i.e., he was entitled to return non-detained. The HSI official

indicated 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 a

phone 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 Judge

of the situation. ICE trial counsel advised the Court that the Office of Chief Counsel could do

nothing 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 anything

about the threat of detention.

34. The Immigration Judge set a new hearing date of April 10, 2012. Once again, it

was 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, and

deciding to risk the possibility of detention upon arrival in the United States, Mr. Garcia changed

his departure date to April 3, 2012. His scheduled arrival also changed to the Chicago O’Hare

Airport at 1:50 AM on the morning of April 4, 2012.

36. Undersigned counsel advised SDDO Warren of these arrangements by letter sent

via 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


11

to facilitate his parole into the United States. Because government offices in Guatemala will

apparently be closed in advance of the upcoming Easter holiday, Mr. Garcia will not be able to

obtain the necessary documents to board a plane to the United States prior to his April 10, 2011

hearing.

38. For over one year, Mr. Garcia, through his undersigned counsel, has been trying

to return to the United States so that he may fully participate in his reopened removal

proceeding, 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 of

individuals 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 Administrative

Procedure Act, 5 U.S.C. §§ 701 et seq. By preventing Mr. Garcia’s return to the United States to

participate in his removal proceeding, Defendants have acted arbitrarily and capriciously and

otherwise 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 execution

of removal orders by promising to re-admit individuals such as Mr. Garcia who prevail in their

motions to reopen after being removed from the United States. See, e.g., Brief for Respondent at

44, Nken v. Holder, 556 U.S. 418 (2009) (“by policy and practice, the government accords aliens

who were removed pending judicial review but then prevailed before the courts effective relief


12

by, inter alia, facilitating aliens’ return to the United States”); Spence v. Holder, 414 Fed. App’x

637, 640 n.4 (5th Cir. 2011) (quoting the government’s statement in its brief that “[a]liens who

are removed may continue to pursue their petitions for review, and those who prevail can be

afforded [sic] effective relief by facilitation of their return, along with the restoration of the

immigration status they had upon removal.”). Until very recently, courts have accepted the

government’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, 624

F.3d 678, 681 n.3 (5th Cir. 2010). And a number of courts, including the United States Supreme

Court, have relied on these government promises to conclude that removal does not constitute

irreparable harm that would warrant a stay of removal. See Nken, 556 U.S. 556; Leiva-Perez, 640

F.3d at 969. However, growing evidence demonstrates the government’s lawyers, including the

U.S. Solicitor General, “were engaged in a bit of a shuffle.” Nat’l Immigration Project of the

Nat’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 have

been impugned by incorrect information provided to the Supreme Court.” Id. See also

Declaration of Jessica Chicco, Lam v. Holder, No. 11-2576 (7th Cir. Mar. 5, 2012) (available at

http://www.nationalimmigrationproject.org/legalresources/J_Chicco_Declaration_for_Lam_v_H

older.pdf)

43. Despite its promises to the contrary – both in this case and in federal courts across

this country – the federal government has not facilitated Plaintiff’s return to the United States

following 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


www.nationalimmigrationproject.org/legalresources/J_Chicco_Declaration_for_Lam_v_Holder.pdf

www.nationalimmigrationproject.org/legalresources/J_Chicco_Declaration_for_Lam_v_Holder.pdf

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 of

law in deportation proceedings.” Reno v. Flores, 507 U.S. 292, 306 (1993). An alien who faces

deportation is entitled to a full and fair hearing of his claims and a reasonable opportunity to

present evidence on his behalf. The right to be present at one’s own removal proceeding is

fundamental to due process. If an individual is outside of the United States, he cannot be

physically present and is substantially hindered in his ability to testify, present witnesses and

evidence, consult with his attorneys, and cross-examine the government’s witnesses and examine

its evidence. Each of these rights is a recognized due process right in removal proceedings. See

Khan 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 to

reopen and motion to reconsider. Although Plaintiff is entitled to due process in these

proceedings, Defendants have thus far deprived him of the ability to be present during his

hearings. If Mr. Garcia is not returned to the United States, he will miss additional hearings and

will ultimately be ordered removed in absentia. Defendants have thus deprived and are

continuing to deprive Plaintiff of a fundamentally fair hearing in violation of the Due Process

Clause 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


h garcia v dhs cv-000354 m.d. tn filed 4-5-12

News & Politics