Los Angeles Immigration Judge Terminates Case For Late-Filed I-213 That Was Unreliable

In a decision dated June 18, 2009, Immigration Judge Frank M. Travieso of the Los Angeles Immigration Court terminated removal proceedings in immigration court based on ICE's failure to file any evidence (such as an I-213 form) in a timely manner along with how the late-filed I-213 was unreliable.

In doing so, IJ Travieso terminated the case without having to rule on a motion to suppress and another type of motion to terminate that was filed in immigration court after an allegedly illegal raid by ICE officers.

In this case, IJ Travieso gave ICE around 2.5 months to file any evidence to prove alienage because the government has the burden of proving alienage in a removal proceeding where ICE attempts to deport someone they found present in the US without beinga dmitted or paroled (under INA 212(a)(6)(A)(i)). Although IJ Travieso set a specific date for submitting evidence, ICE did not file anything until 12 days after the deadline.

First, IJ Travieso held that an IJ has the authority to set deadlines for filing evidence. 8 CFR 1003.31(c). Also, a party is deemed to waive the opportunity to file evidence if it misses a deadline. 8 CFR 1003.31(c) and Immigration Court Practice Manual section 3.1.

The IJ concluded that ICE's explanation that there had been a clerical error was an inadequate explanation for missing the filing deadline, especially when ICE had the document for over 9 months before the deadline.

It is logical that if ICE misses a deadline, an IJ should reject any late-filed materials unless ICE has a compelling excuse. If ICE offers no excuse, it would be logical for an IJ to reject the materials.

Second, as an independent basis for rejecting the I-213, it was unreliable because it contained incorrect and unsupported information. It said the respondent was from a city that does not exist. It did not explain how the purported facts were obtained. It contradicts itself by saying the respondent refused to answer questions about her employment yet lists the dates of her employment. Also, the I-213 said the respondent is from a different country than ICE alleged in the Notice to Appear or in the case. In addition, there was undisputed evidence that ICE officers during a raid instructed the respondent to lie about where she arrived in the United States and during an interrogation said they would just write down information about her when she refused to answer questions.

For the respondent was Stacy Tolchin of Van Der Hout, Brigagliano & Nightingale LLP of Los Angeles, California with assistance from law students at UCLA Law School. For the government was Carlos E. Maury of ICE counsel in Los Angeles.