Ruling Could Reopen Many Deportee Cases

In a ruling that affects thousands of immigrants nationwide, a federal judge in Seattle has ordered the Immigration and Naturalization Service to reopen deportation proceedings in cases in which the INS failed to adequately inform individuals of their right to a hearing before deportation.

U.S. District Judge John C. Coughenour, a Reagan appointee, ruled that the INS violated the 5th Amendment’s due process clause by failing to properly inform about 5,000 individuals charged with using false documents that they have a right to a hearing in order to rebut those charges.

Once an individual is found to have used false immigration documents, he or she is subject to immediate deportation and can be permanently excluded from the United States.

In a ruling made public Wednesday, Coughenour found that the INS had been using forms and procedures that were “highly technical,” “legalistic” and “confusing.” He said the forms did not adequately apprise immigrants of their right to a hearing.

The judge also said that since many of the individuals charged with document fraud are Spanish-speaking, it was “simply unacceptable” for the INS not to have provided forms in a language other than English. He rejected the INS’ claims that the defendants had knowingly forfeited their right to a hearing.

Moreover, Coughenour ruled that the INS will have to permit individuals who were deported because of the agency’s illegal actions in this matter to be temporarily readmitted to contest their deportations. However, the government is not required to pay for travel or housing for any of those individuals.

To give added teeth to the ruling, Coughenour, in a rare move, ordered the INS to publicize the decision widely in Central America and South America so that people in those regions would be aware that they can return to the United States for document fraud and deportation hearings. He also directed the agency to provide notices of his ruling to 800 nonprofit immigration assistance providers with which the INS has established contact.

The INS has 60 days to appeal. INS spokesman Brian Jordan said the agency would have no comment until its attorneys had reviewed the ruling.

Public interest lawyers were quick to hail the ruling.

“This decision shows the need to have judicial oversight of the Immigration Service,” said Linton Joaquin of the National Immigration Law Center in Los Angeles, one of the lead lawyers for the plaintiffs in the class-action lawsuit. “It was apparent from the day we filed this suit in August 1994 that the INS forms weren’t reasonably calculated to inform people. But instead of changing the forms, the INS vigorously litigated the case.”

He said the decision affects about 2,500 individuals who have left the country.

Lee Gelernt of the American Civil Liberties Union, one of several public interest organizations that worked on the case, said the ruling also stood for a broader proposition. “This decision reaffirms the fundamental, but often neglected, principle that all persons regardless of immigration status are protected by the due process clause and must be given a fair opportunity to contest accusations against them.”

Coughenour ordered the INS to dramatically change the forms and procedures it uses to enforce a 1990 immigration law aimed at curtailing document fraud. Moreover, he directed the agency to restart deportation proceedings against thousands of people.

The plaintiffs sued over a section of the 1990 Immigration and Naturalization Act that made document fraud a crime punishable by automatic and permanent deportation. That section of the massive immigration reform law was intended to deter illegal immigrants from tampering with Social Security or residency “green” cards.

Coughenour agreed with the plaintiffs that INS procedures and forms only written in English were inadequate to constitute sufficient notice to those suspected of breaking the law that they had a right to a hearing. Once the nonresidents signed away their right to a hearing, they were subject to permanent deportation.

The judge said it was possible that some immigrants may have received constitutionally adequate notice. Nonetheless, he said he did not intend to require each individual to prove the inadequacy of his or her notice. “That would eviscerate the court’s broader holding that the general forms and procedures used by defendants were constitutionally deficient,” Coughenour wrote.

Therefore, all that is necessary for one of the plaintiffs to get a case reopened is to simply “attest to his or her lack of understanding” of the forms.

Coughenour’s decision does not mean that the plaintiffs will necessarily get to stay in the United States or gain permanent reentry. Rather, Joaquin said, it means that they are simply entitled to a hearing on charges of engaging in document fraud. He said that some immigrants had won some of their cases.