University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Dent v. Sessions IM-AZ-0014
Docket / Court 2:10-cv-02673-PHX-GMS ( D. Ariz. )
Additional Docket(s) 09−71987  [ 09-71987 ]
13-17213  [ 13-17213 ]
17-15662  [ 17-15662 ]
State/Territory Arizona
Case Type(s) Immigration and/or the Border
Case Summary
On June 26, 2009, a Legal Permanent Resident born in Honduras and adopted by a U.S. citizen mother at the age of 14, while in the custody of the Department of Homeland Security ("DHS"), filed this lawsuit in the U.S. Court of Appeals for the Ninth Circuit.

The plaintiff, represented by ... read more >
On June 26, 2009, a Legal Permanent Resident born in Honduras and adopted by a U.S. citizen mother at the age of 14, while in the custody of the Department of Homeland Security ("DHS"), filed this lawsuit in the U.S. Court of Appeals for the Ninth Circuit.

The plaintiff, represented by a private counsel, sought a review under 8 U.S.C. § 1252 of an order of the Board of Immigration Appeals ("BIA") that sustained the Immigration Judge's order finding the plaintiff removal as charged. The plaintiff argued that the order was wrong as a matter of law and violated the plaintiff's constitutional rights,

Specifically, the plaintiff claimed that the administrative removal proceedings were fraught with material mistakes and omissions on the part of the Immigration Judge ("IJ"), the BIA and the DHS, such that the plaintiff was deprived of any semblance of a fundamentally fair removal hearing. Allegedly, the IJ repeatedly failed to properly advise the plaintiff of his procedural rights, as required by the regulations. Moreover, the plaintiff claimed that the IJ committed material procedural and substantive errors of law; the BIA simply ignored the IJ's errors and summarily approved his decision; and the DHS mischarged and recharged the plaintiff with different grounds of deportation.

The plaintiff also claimed that, as a Lawful Permanent Resident of the United States for more than 20 years, he was entitled to apply for full relief from removal in the form of cancellation of removal pursuant to 8 U.S.C. § 1229b(a).

In 2005, the DHS initiated removal proceedings against the plaintiff on the ground that he was not a U.S. citizen, and had been convicted of an aggravated felony. The plaintiff lived in the U.S. since 1981, but according to the government, he was a citizen of Honduras and was a lawful permanent resident rather than a citizen of the U.S. The plaintiff was convicted in the Superior Court of Arizona for possession or use of narcotic drugs and escape in the third degree, both felonies, and sentenced to one year of imprisonment.

The plaintiff initially defended pro se against his removal, arguing that he had been adopted by a U.S. citizen when he was a child, and was a U.S. citizen himself. He also argued that his convictions did not suffice to make him an aggravated felon under the statute. The BIA adopted and affirmed the IJ's decision that he be removed.

When the plaintiff told the IJ he had been adopted by a U.S. citizen, the IJ asked the plaintiff to produce the adoption papers and his mother's birth certificate. Later, noting that the plaintiff had not produced his mother's birth certificate despite continuances and that he could pursue his citizenship claim from Honduras, the IJ found that "defendant has been unable to make a prima facie showing of citizenship in the United States" and ordered him removed to Honduras.

The plaintiff appealed to the BIA and won a remand on the non-substantive ground that the record it received lacked the adoption decree and the criminal judgment. On remand, the government lodged an additional charge, that the plaintiff was removable not only for the escape but also for his controlled substance violation. The IJ again found the plaintiff removable because his escape violation was a crime of violence, and also because of his controlled substance violation. The plaintiff again appealed to the BIA, and the BIA adopted and affirmed the IJ's decision.

Unknown to the plaintiff, the documents existed in his A-file related to his claim of U.S. citizenship. These documents were always in the government's control, but never given to him or to the IJ or BIA. The documents consisted of a naturalization application that the plaintiff's adoptive mother filed on his behalf on January 18, 1982 and an Application to File Petition for Naturalization that the plaintiff filed on his own behalf on February 26, 1986. The A-file did not include any documents purporting to adjudicate either application.

A-Files are documents that chronicle the history of individuals' interactions with components of the DHS and predecessor agencies. The U.S. Citizenship and Immigration Services (USCIS) uses the information in an A-File to enforce U.S. immigration laws. The A-file "contains all the individual's official record material such as naturalization certificates; various forms (and attachments, e.g., photographs), applications and petitions for benefits under the immigration and nationality laws, reports of investigations; statements; reports; correspondence; and memoranda on each individual for whom INS has created a record under the Immigration and Nationality Act."

The plaintiff sought review in the Ninth Circuit of the BIA decision affirming the IJ's decision, and raised a new issue, that he should have been furnished with the naturalization petitions in his A-file.

The case was argued in front of the Circuit Judges on April 13, 2010. On November 9, 2010, Circuit Judge Andrew J. Kleinfeld held that it would take judicial notice of existence of naturalization applications contained in the plaintiff's A-file, but it would not take judicial notice of facts allegedly proved by out-of-record naturalization applications. The Court also held that the government's failure to provide the plaintiff with a copy of his A-file violated his due process rights and that he was entitled to a copy of his A-file under the mandatory access provision of the removal statute. Finally, the court held that a fact issue existed as to whether the plaintiff was a naturalized U.S. citizen, and therefore, the case was transferred to the district court, rather than remanded to the BIA.

Accordingly, the court vacated the BIA decision and transferred the proceedings to the district court for a new hearing on the plaintiff's nationality claim, to be considered as if an action had been brought for declaratory relief under 28 U.S.C. § 2201.33. If the district court determined that the plaintiff was not a citizen of the U.S., then the case would be remanded to the BIA for a new hearing after production of the A-file in full, unless its production had already been ordered by the district court.

On December 23, 2010, the case was reassigned to the U.S. Circuit Judge Mary H. Murguia. On January 5, 2011, the case was reassigned to the U.S. Circuit Judge John W. Sedwick and later on the same day reassigned to the US Circuit Judge Timothy M. Burgess by agreement of the judges.

On September 12, 2012, the defendants filed a motion for summary judgment seeking to dismiss the plaintiff nationality claim under 8 U.S.C. § 1252(b)(5)(B). At this point the plaintiff still lacked representation, and he failed to file a timely response. On October 12, 2012, he requested a 60-day extension to obtain counsel and respond to the defendants' motion and requested a stay of removal. On October 25, 2012, Judge Burgess granted the plaintiff's request for a 60-day extension. Judge Burgess denied the plaintiff's request for a stay of removal as moot because there was no pending order of removal concerning the plaintiff because the Ninth Circuit vacated the Board of Immigration Appeals' earlier decision concerning the plaintiff.

On January 2, 2013, Judge Burgess issued an order to show cause why this action should not have been dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). The plaintiff's deadline to respond was January 18, 2013.

On January 17, 2013, Judge Burgess admitted pro hac vice a private attorney for the plaintiff.

On September 30, 2013, Judge Burgess granted the defendant's motion for summary judgment on the plaintiff's nationality claim because the plaintiff did not successfully prosecute his application, which was subsequently denied by the court, and he could not prove that he naturalized based on his application. Judge Burgess granted the defendant's motion to dismiss as to all other claims because the defendant produced all the relevant documents it had in its possession. The plaintiff's request for oral arguments wasn't necessary to resolve the matter. 2013 WL 11311230 2013 (D. Ariz. Sept. 30, 2013).

On October 28, 2013, the plaintiff filed an appeal with the Ninth Circuit (case number: 13-17213).

On June 30, 2015, the Ninth Circuit issued a memorandum vacating and remanding the case for further consideration of the plaintiff's due process claims in light of the Ninth Circuit's decision in , 763 F.3d 1141 (9th Cir. 2014), holding that a petitioner might be able to establish a claim to citizenship if he can demonstrate that the "INS acted arbitrarily and intentionally obstructed his Childhood and/or Adult Applications" or was "deliberately indifferent to whether his application[s] [were] processed." 606 Fed.Appx. 405 (Jun 30, 2015).

On August 27, 2015, the case was re-assigned to U.S. District Court Judge Steven P Logan. On August 31, 2015, the case was again re-assigned by lot to the U.S. District Court Judge G. Murray Snow.

On May 27, 2016, both parties filed motions for summary judgements.

On March 17, 2017, Judge G. Murray Snow issued an order granting the defendant's motion for summary judgement and denied the plaintiff's motion for summary judgement. The plaintiff failed to present the evidence sufficient to raise a prima facie case that the INS arbitrarily and intentionally obstructed or acted with deliberate indifference toward his application. As such, the plaintiff was unable to succeed on a constitutional due process claim. 243 F.Supp.3d 1062 (D. Ariz. 2017).

On April 7, 2017 the Notice of Appeal was filed by the plaintiff with the Ninth Circuit. The case number is 17-15662. The appeal is ongoing.

Xin Chen - 07/18/2012
Joanna Kuzdra - 03/15/2018


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Due Process
Defendant-type
Jurisdiction-wide
Immigration/Border
Constitutional rights
Deportation - criteria
Deportation - judicial review
Deportation - procedure
U.S. citizenship - acquiring
Plaintiff Type
Private Plaintiff
Causes of Action Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) Attorney General of the United States
Plaintiff Description A Legal Permanent Resident born in Honduras and adopted by a U.S. citizen mother at the age of 14.
Class action status sought No
Class action status granted No
Prevailing Party Defendant
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None yet
None
Case Ongoing Yes
Docket(s)
09-71987 (U.S. Court of Appeals)
IM-AZ-0014-9001.pdf | Detail
Date: 10/29/2013
Source: PACER [Public Access to Court Electronic Records]
2:10-cv-02673-TMB (D. Ariz.)
IM-AZ-0014-9000.pdf | Detail
Date: 05/13/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Petition for Review
IM-AZ-0014-0002.pdf | Detail
Date: 06/26/2009
Source: PACER [Public Access to Court Electronic Records]
Ninth Circuit Opinion (627 F.3d 365)
IM-AZ-0014-0001.pdf | WESTLAW| LEXIS | Detail
Date: 11/09/2010
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 146] (2013 WL 11311230) (D. Ariz.)
IM-AZ-0014-0004.pdf | WESTLAW | Detail
Date: 09/30/2013
Source: PACER [Public Access to Court Electronic Records]
Order [ECF# 206] (D. Ariz.)
IM-AZ-0014-0003.pdf | Detail
Date: 03/17/2017
Source: PACER [Public Access to Court Electronic Records]
Judges Burgess, Timothy Mark (D. Alaska)
IM-AZ-0014-0004
Kleinfeld, Andrew Jay (D. Alaska, Ninth Circuit)
IM-AZ-0014-0001
Snow, G. Murray (State Appellate Court, D. Ariz.)
IM-AZ-0014-0003 | IM-AZ-0014-9000
Plaintiff's Lawyers Agne, Sara Jane (Arizona)
IM-AZ-0014-9000
Cheong, Holly E. (Nevada)
IM-AZ-0014-9000
Johnson, Brett William (Arizona)
IM-AZ-0014-9000
Leopold, David W. (Ohio)
IM-AZ-0014-0002
Marouf, Fatma E. (Texas)
IM-AZ-0014-9000
Selzer, Sarah (Arizona)
IM-AZ-0014-9000
Tolchin, Stacy Eva (California)
IM-AZ-0014-9001
Traum, Anne Rachel (Nevada)
IM-AZ-0014-9000 | IM-AZ-0014-9001
Villanueva, Cindy Aracely (Arizona)
IM-AZ-0014-9000
Defendant's Lawyers Clark, Katharine Elizabeth (District of Columbia)
IM-AZ-0014-9000 | IM-AZ-0014-9001
Evans, Walter Manning (District of Columbia)
IM-AZ-0014-9000 | IM-AZ-0014-9001
Fiorino, Paul (District of Columbia)
IM-AZ-0014-9001
George, Matthew B (District of Columbia)
IM-AZ-0014-9001
Parsons, Cynthia M. (Arizona)
IM-AZ-0014-9000 | IM-AZ-0014-9001
Verby, Russell J. (District of Columbia)
IM-AZ-0014-9000

- click to show/hide ALL -

new search
page permalink

- top of page -