On the Fourth of July, a network news website reported on a Filipino couple filing a case for damages against the US government. This case had caught the attention of many immigrants and the first question that was raised is whether this couple, who allegedly were wrongfully deported, will prevail on their claim.
According to the news report, the husband arrived in the US in 1985, with the wife following ten years later. It did not state what the immigration statuses of the couple were at the time of their deportation. What was stated is that there was a deportation case and that no Notice to Appear was received by them resulting in their failure to appear. The immigration judge apparently issued an order of deportation.
At the time they were taken into custody and deported in 2005, the couple claimed that they had a pending Motion to Re-open to explain the lack of notice and to request that they be afforded an opportunity to be heard before the court. Unfortunately, the US Department of Homeland Security through the Immigration and Customs Enforcement (ICE) decided to deport them back to the Philippines.
After prevailing on their appeal, a return to the United States was arranged by their attorney through the US Department of Homeland Security. The couple returned to the US two years ago. They filed a claim against the US government for wrongfully being deported. The couple are seeking for half a million dollars in damages.
Reasons for Deportation
Those who enter the United States must have a valid visa to stay and work. Once a nonimmigrant falls out of status, this individual loses the right to stay in the US . It is the obligation of the Department of Homeland Security through the Immigration and Customs Enforcement to file notices to appear and take into custody nonimmigrant’s who had fallen out of status.
With the significant number of undocumented aliens, the ICE prioritizes only which group they are going to deport. Noncitizens with criminal cases and final orders are one of the groups being deported to their home country. After 9/11 the ICE came out with a program called Operation Return to Sender where they deport aliens with final orders of deportation.
The subject Filipino couple seemed to have a Final Order of Deportation issued to them by the immigration judge. A motion to reopen was filed and according to them it was approved recently but after they were deported. As far as ICE is concerned they enforced the final order of deportation notwithstanding the pending motion.
Motions to Reopen
Unless there is a court order staying the deportation of individuals, the ICE may enforce a final order of deportation. During the enforcement of this order, they have the authority to take into custody the individuals subject to deportation. This is what they refer to as “mandatory detention”.
According to the deported husband, there was a “pending” motion to reopen and so therefore they should not have been deported. This holds true only in limited circumstances. Generally, the ICE is not prevented from removing an individual if the order of deportation is final unless there is a properly filed motion or appeal. Also, there is an automatic stay of deportation only if the motion is filed as a result of an “in absentia” order of deportation. This means that there was failure to appear because of lack of proper notice. The ICE and the immigration court must be duly informed of this automatic stay.
Noncitizens Constitutional Rights
Both citizens and noncitizens in the US are generally protected against arbitrary federal and state action. The constitutional safeguards of due process and equal protection of the law apply to both. The Federal Constitution explicitly states in the Fifth Amendment that no “person” shall be deprived of life, liberty or property without due process of law and that the Fourteenth Amendment commands that no “person” shall be denied the equal protection of the laws. The constitutional rights have been debated several times in many cases and it is settled that in some areas such as in employment and property rights noncitizens may not enjoy the same rights as citizens.
Suing the US Government
It is not unusual that an individual who is aggrieved by arbitrary federal action sues the US government for damages. The basis for these lawsuits may be the Federal Tort Claims Act (FTCA) and the Bivens claims against individual officials for violating the immigrant’s constitutional rights. Under the FTCA, the aggrieved immigrant may claim damages for false arrest, battery and intentional infliction of emotional distress.
As a defense, the US government is not liable if it can prove that the employees’ conduct involved an element of judgment or choice and the judgment exercised by its employees was grounded in social, economic or political policy.
Claim Should Prevail
There are no details of the Pinoy couple case that will allow us to give an objective analysis. The report states that the wife is “under petition” as a registered nurse by a US employer. Hopefully, she now has a valid immigration visa that authorizes her to stay and work in the US and that their removal case is now terminated.
To prevail on the lawsuit for damages, the Pinoy couple must prove not merely the damages but the fact that the ICE agents went beyond their call of duty in removing them arbitrarily from the US. Under the law, the US government may just show that the ICE employees were performing their official functions even if there has been an abuse of discretion.
It is true that the Pinoy couple do not deserve the unjust treatment and harsh effects of deportation. With the restrictive and unreasonable immigration policy during the Bush administration, what happened to them is no longer extraordinary, as more families are separated because of the broken immigration system. Nevertheless, the ICE agents are still expected to exercise reasonable judgment in the performance of their functions despite the mounting pressure placed on them by the administration. For after all, it is worth reminding that not even federal officials should be above the law.
(Tancinco may be reached at law@tancinco.com or at 887 7177)
