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Case Name Dent v. Sessions IM-AZ-0014
Docket / Court 2:10-cv-02673-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 Lawful Permanent Resident detained by the Department of Homeland Security ("DHS") filed this lawsuit in the U.S. Court of Appeals for the Ninth Circuit. The plaintiff, represented by private counsel, sought review under 8 U.S.C. § 1252 of a decision of the Board of Immigration ... read more >
On June 26, 2009, a Lawful Permanent Resident detained by the Department of Homeland Security ("DHS") filed this lawsuit in the U.S. Court of Appeals for the Ninth Circuit. The plaintiff, represented by private counsel, sought review under 8 U.S.C. § 1252 of a decision of the Board of Immigration Appeals ("BIA") affirming his removal order. The plaintiff argued that the order was wrong as a matter of law and violated his 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 Immigration and Nationality Act (INA). 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 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).

DHS initiated removal proceedings against the plaintiff in 2005 on the ground that he had been convicted of an aggravated felony. The plaintiff had been 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 against his removal pro se, arguing that he had been adopted by a U.S. citizen when he was a child, and thus was a U.S. citizen himself. He also argued that his convictions did not suffice to make him an aggravated felon under the INA.

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 the plaintiff had 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 an aggravated felony 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 related to his claim of U.S. citizenship were already in his immigration file (“A-file”). 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.

In his appeal to the Ninth Circuit, the plaintiff raised a new claim—that he should have been furnished with the naturalization petitions in his A-file.

On November 9, 2010, Circuit Judge Andrew J. Kleinfeld held that the Court would take judicial notice of the 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 INA. Finally, the court held that a factual issue existed as to whether the plaintiff was a naturalized U.S. citizen, and therefore, the case should be transferred to the district court, rather than remanded to the BIA.

Accordingly, the court vacated the BIA decision and transferred the proceedings to the U.S. District Court for the District of Arizona 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. 627 F.3d 365.

On December 23, 2010, the case was assigned to Judge Mary H. Murguia. On January 5, 2011, the case was reassigned to the U.S. Circuit Judge John W. Sedwick, and it was reassigned again on January 20 to Judge Timothy M. Burgess.

During discovery, the plaintiff’s counsel requested to withdraw from the case. Judge Burgess granted the motion to withdraw on August 22, 2012.

On September 12, 2012, the defendants filed a motion for summary judgment as to the plaintiff’s nationality claim, and a motion to dismiss all other claims. 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; he also 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 longer a pending order of removal (the Ninth Circuit had vacated the BIA's earlier decision affirming the removal order).

On January 2, 2013, Judge Burgess issued an order to the plaintiff requiring him to show cause why this action should not have been dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

On January 17, 2013, Judge Burgess admitted pro hac vice a private attorney for the plaintiff. On January 18, the plaintiff responded to the order to show cause.

On September 30, 2013, Judge Burgess granted both of the defendant's motions. First, the court granted the government summary judgment on the plaintiff’s naturalization claim, finding that under the INA, the plaintiff did not meet the requirements for naturalization under his mother’s application, nor did he successfully prosecute his individual application. Judge Burgess also granted the defendant's motion to dismiss as to all other claims because the case had been transferred to the district court as if on “limited remand” for the purpose of resolving the factual issues surrounding the plaintiff’s citizenship, and the government had since produced all the relevant documents it had in its possession. 2013 WL11311230.

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 Brown v. Holder, 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 “[Immigration and Naturalization Service] 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 reassigned to U.S. District Court Judge Steven P Logan. On August 31, 2015, the case was again re-assigned by lot to Judge G. Murray Snow.

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

On March 17, 2017, Judge Snow issued an order granting the defendant's motion for summary judgment and denying the plaintiff's motion. The Judge found that the plaintiff had failed to present evidence sufficient to raise a prima facie case that the INS arbitrarily and intentionally obstructed or acted with deliberate indifference toward his naturalization applications. 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 plaintiff appealed to the Ninth Circuit (case no. 17-15662).

On August 17, 2018, the Ninth Circuit issued an opinion denying the plaintiff’s petition insofar as it raised due process and equal protection claims relating to his citizenship determination, but granting and remanding insofar as the BIA ruled that his escape conviction was an aggravated felony.

First, the Court found that the plaintiff did have standing to assert due process and equal protection claims on his deceased adoptive mother’s behalf. Applying rational basis review, the Court held that the statutory requirement that citizen parents petition to naturalize their adopted, foreign-born children does not violate equal protection. The Court also held that the plaintiff was unable to show that the INS violated his due process rights by acting with deliberate indifference in processing his citizenship applications. Finally, the Court found that the BIA erred in concluding that third-degree escape under Arizona law was an aggravated felony crime of violence that would make the plaintiff removable. However, the Court stated that the plaintiff’s conviction for a controlled substance offense still rendered him removable, and so remanded the case to the BIA for a new hearing to address the plaintiff’s request for cancellation of removal. 900 F.3d 1075.

The plaintiff petitioned the U.S. Supreme Court for a writ of certiorari, but the Court denied the petition on April 1, 2019. 139 S.Ct. 1472.

The case is closed.

Xin Chen - 07/18/2012
Joanna Kuzdra - 03/15/2018
Sam Kulhanek - 03/18/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Due Process
Equal Protection
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 Lawful Permanent Resident in immigration detention.
Class action status sought No
Class action status granted No
Filed Pro Se Yes
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Filed 06/26/2009
Case Closing Year 2019
Case Ongoing No
Additional Resources
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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: 11/02/2018
Source: PACER [Public Access to Court Electronic Records]
General Documents
Petition for Review [Ct. of App. ECF# 1]
IM-AZ-0014-0002.pdf | Detail
Date: 06/26/2009
Source: PACER [Public Access to Court Electronic Records]
Ninth Circuit Opinion [Ct. of App. ECF# 50] (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] (243 F.Supp.3d 1062) (D. Ariz.)
IM-AZ-0014-0003.pdf | WESTLAW| LEXIS | Detail
Date: 03/17/2017
Source: PACER [Public Access to Court Electronic Records]
Opinion (900 F.3d 1075)
IM-AZ-0014-0005.pdf | WESTLAW| LEXIS | Detail
Date: 08/17/2018
Source: Westlaw
show all people docs
Judges Burgess, Timothy Mark (D. Alaska) show/hide docs
IM-AZ-0014-0004
Graber, Susan (Ninth Circuit) show/hide docs
IM-AZ-0014-0005
Kleinfeld, Andrew Jay (D. Alaska, Ninth Circuit) show/hide docs
IM-AZ-0014-0001
Lemelle, Ivan L. R. (E.D. La.) show/hide docs
IM-AZ-0014-0005
Snow, G. Murray (State Appellate Court, D. Ariz.) show/hide docs
IM-AZ-0014-0003 | IM-AZ-0014-9000
Tallman, Richard C. (FISCR, Ninth Circuit) show/hide docs
IM-AZ-0014-0005
Plaintiff's Lawyers Agne, Sara Jane (Arizona) show/hide docs
IM-AZ-0014-9000
Cheong, Holly E. (Nevada) show/hide docs
IM-AZ-0014-9000
Johnson, Brett William (Arizona) show/hide docs
IM-AZ-0014-9000
Leopold, David W. (Ohio) show/hide docs
IM-AZ-0014-0002
Marouf, Fatma E. (Texas) show/hide docs
IM-AZ-0014-9000
Selzer, Sarah (Arizona) show/hide docs
IM-AZ-0014-9000
Tolchin, Stacy Eva (California) show/hide docs
IM-AZ-0014-9001
Traum, Anne Rachel (Nevada) show/hide docs
IM-AZ-0014-9000 | IM-AZ-0014-9001
Villanueva, Cindy Aracely (Arizona) show/hide docs
IM-AZ-0014-9000
Defendant's Lawyers Clark, Katharine Elizabeth (District of Columbia) show/hide docs
IM-AZ-0014-9000 | IM-AZ-0014-9001
Evans, Walter Manning (District of Columbia) show/hide docs
IM-AZ-0014-9000 | IM-AZ-0014-9001
Fiorino, Paul (District of Columbia) show/hide docs
IM-AZ-0014-9001
George, Matthew B (District of Columbia) show/hide docs
IM-AZ-0014-9001
Parsons, Cynthia M. (Arizona) show/hide docs
IM-AZ-0014-9000 | IM-AZ-0014-9001
Verby, Russell J. (District of Columbia) show/hide docs
IM-AZ-0014-9000

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