No Immunity For ICE Attorney Who Submitted A Forged Document In A Deportation Hearing

from the christ-what-an-asshole dept

The Ninth Circuit Court of Appeals has refused to extend qualified immunity to a former ICE attorney who forged a document submitted into evidence in a deportation hearing. (h/t Mark Stern) While still with ICE, Jonathan M. Love produced a document claiming Ignacio Lanuza had agreed to voluntary departure to Mexico, thus undermining the ten years of residency needed to avail himself of a removal order cancellation. Here's what was submitted and its effect, from the appeals court decision [PDF]:

On May 11, 2009 at Lanuza’s actual immigration hearing, Love submitted an I-826 form agreeing to voluntary departure, purportedly signed by Lanuza on January 13, 2000, making Lanuza ineligible for cancellation of removal. See id. Based solely on that I-826 form, the immigration judge issued an order of removal on January 5, 2010; the Board of Immigration Appeals (“BIA”) affirmed on November 15, 2011.

Lanuza hired a new lawyer who examined the document and found something highly suspect about it. Most glaringly, it was supposedly signed in 2000 by someone from the DHS. Here's the problem:

From the court:

[The document] referred to the “U.S. Department of Homeland Security” at the top of the page, an agency that did not exist at the time Lanuza purportedly signed the form on January 13, 2000. Congress created DHS in response to the September 11, 2001 terrorist attacks, and the agency did not begin formal operations until 2003. Therefore, it would have been impossible for Lanuza to sign the DHS I-826 form in January 2000, because that form did not then exist.

Notably, the government did nothing to the ICE attorney until after he was sued by Lanuza. Only then did it find he had violated Lanuza's rights by forging the document. For derailing a model immigrant's life and forcing him into a decade of litigation, Love received a 30-day sentence and a 10-year ban on practicing law.

Now, it's Lanuza's turn to obtain compensation for Love's fraudulent actions. The ICE attorney tried to protect himself from being sued directly by laughably claiming his document forgery naturally flowed from ICE policies and directives. This was Love's attempt to dodge Lanuza's Bivens claim. The court makes short work of his argument.

Love argues that all actions taken by immigration officials in the course of their duties—even criminal acts— are necessarily intertwined with the execution of immigration policy. We decline to entertain such a broad reading of immigration law, as the illogical nature of such a reading is demonstrated by the absurdity of its results. If, for example, an immigration official physically forced himself on an asylum-seeker and offered to help her obtain relief if she kept quiet, we would have no trouble concluding that such criminal conduct bears no relationship to the legitimate execution of immigration policy. Likewise, we will not allow an officer of the immigration court to cloak himself in the government’s protection when he commits the crimes of forgery and perjury.

Love also argued that allowing this claim to continue would result in the court being swamped by similar complaints from aggrieved plaintiffs. The government feels this would be an unacceptable burden on ICE and the courts. The court, again, finds this argument ridiculous. If the court were to take the government's assertions seriously, it would suggest there's something horribly wrong with ICE, not the extension of a Bivens remedy in a non-criminal case.

[W]e do not foresee a “deluge” of potential claimants seeking to avail themselves of this particular Bivens action. [...] Recognizing a Bivens action here will produce widespread litigation only if ICE attorneys routinely submit false evidence, which no party argues is the case. And if this problem is indeed widespread, it demonstrates a dire need for deterrence, validating Bivens’s purpose.

With the Bivens claim established in a new context (immigration hearings rather than just criminal trials), the ICE attorney's qualified immunity assertion is quickly dispensed with.

There can be no doubt that Love—who intentionally, and illegally, submitted falsified evidence in an immigration hearing—is not protected by qualified immunity, as the district court properly held.

[...]

For these reasons, we hold that a Bivens remedy is available here, where a government immigration attorney intentionally submitted a forged document in an immigration proceeding to completely bar an individual from pursuing relief to which he was entitled. Failing to provide a narrow remedy for such an egregious constitutional violation would tempt others to do the same and would run afoul of our mandate to enforce the Constitution.

Love will be held personally responsible for violating the rights of an immigrant seeking naturalization. The record shows Lanuza was exactly the kind of person we want to welcome to the US -- a person who was useful, productive, and by all accounts a model citizen. The only thing he was missing was the citizenship. And an ICE lawyer tried to take it all away and separate Lanuza from his family by submitting a forged document into evidence. The brazen dishonesty is shocking. The capricious cruelty of this move -- completely unwarranted by Lanuza's behavior during his decade in the US -- is what really sticks in your throat.


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  • icon
    Anonymous Anonymous Coward (profile), 22 Aug 2018 @ 11:15am

    Only sorta dirty, from their point of view

    "...Recognizing a Bivens action here will produce widespread litigation only if ICE attorneys routinely submit false evidence, which no party argues is the case. And if this problem is indeed widespread, it demonstrates a dire need for deterrence, validating Bivens’s purpose."

    That they did it, and got caught once, leaves the question as to whether they did it more times. It is hard to believe that they didn't. The problem will be that other cases won't have such clear cut evidence. That no party argues that in this case could mean they didn't investigate other cases, not that other cases don't exist.

    Courts should take any filing by DHS with a huge amount of skepticism, because of this.

    reply to this | link to this | view in chronology ]

    • icon
      RonKaminsky (profile), 22 Aug 2018 @ 12:15pm

      Re: Only sorta dirty, from their point of view

      > Courts should take any filing by DHS with a huge amount of skepticism, because of this.

      If only you could "forge" reality, to make it so...

      reply to this | link to this | view in chronology ]

      • icon
        Anonymous Anonymous Coward (profile), 22 Aug 2018 @ 12:22pm

        Re: Re: Only sorta dirty, from their point of view

        I am not hopeful, but I bet any defense attorneys will be taking a very close look, and make appropriate assertions. Maybe even when they don't have a leg to stand on, just the precedent.

        reply to this | link to this | view in chronology ]

  • identicon
    stine, 22 Aug 2018 @ 12:14pm

    What a lead.

    Now you know what type of documents to request without any care or concern about what they redact, those on Homeland Security letterhead, dated before 2003.

    reply to this | link to this | view in chronology ]

  • identicon
    mcinsand, 22 Aug 2018 @ 12:15pm

    deterrence

    >>dire need for deterrence, validating Bivens’s purpose.

    I hope that the 'agent' gets deterred into the Stone Age.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Aug 2018 @ 12:50pm

    What incentives does ICE have

    I want to know what motivated this ICE lawyer to take this criminal risk.
    Do they have quotas? Are (un)successful deportations a factor in performance reviews?

    Does ICE plan to do anything to ensure that in the future their employees don't value deportations over justice?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 22 Aug 2018 @ 1:19pm

    Feel that (silk lined and well padded) iron fist!

    For derailing a model immigrant's life and forcing him into a decade of litigation, Love received a 30-day sentence and a 10-year ban on practicing law.

    A ten year ban(though given the severity of the crime lifetime would have been more fitting) on practicing law is at least something, but a 30 day sentence, even assuming that that's jail? That's a sick joke.

    One month for fraud and perjury in an attempt to deport someone? Oh yeah, they really brought the hammer down on him for that action, making clear that they will absolutely not allow that sort of thing in the future... you know, unless someone else feels like risking a single month is worth screwing someone over for whatever reason.

    At least the court seems to be taking the issue seriously so far, though whether or not they'll be willing to follow through rather than break out the kid gloves come sentencing is still to be determined.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Aug 2018 @ 1:28pm

      Re: Feel that (silk lined and well padded) iron fist!

      Does he have duel citizenship? If so, strip him of US citizenship and deport him to wherever else he's a citizen of. That sounds like a fair and proportionate remedy.

      Unfortunately, if he only possesses US citizenship, revoking his US citizenship will leave him stateless, which generally isn't allowed.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Aug 2018 @ 2:14pm

        Re: Re: Feel that (silk lined and well padded) iron fist!

        duel citizenship

        I'd say that should be "dual"--but with Trump in power, your spelling may hold some truth.

        reply to this | link to this | view in chronology ]

  • identicon
    David, 22 Aug 2018 @ 1:55pm

    Qualified immunity

    The one thing I find more disconcerting than the crop of people claiming they are entitled to immunity because it's the government's way of creating organized crime incubators is that their main trangression may be not keeping their mouth shut about their well-funded expectations.

    Well, the criminal case is already over and the devastating punishment of 30 days arrest has apparently been delivered, but the 10-year barrment from the job is still curable by a presidential pardon.

    With regard to the civil case, I don't think that a pardon would work but the president could still use Executive Privilege to have the plaintiff shot.

    That way, the formalities of U.S. justice could still be served without surrendering to Mexicans.

    The wall that the U.S. folks are building in their heads will not be paid for by Mexico, though.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 22 Aug 2018 @ 2:18pm

    Policies and directives

    laughably claiming his document forgery naturally flowed from ICE policies and directives.

    That might be true. It is ICE we're talking about.

    Even if an act of forgery truly follows policies and directives, it should not shield one from consequences. "I was only following orders."

    reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 22 Aug 2018 @ 2:27pm

    It's called "Qualified" immunity for a reason

    I'm just surprised to finally see an example of something that seems to NOT qualify!

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 22 Aug 2018 @ 8:26pm

    Perhaps, just perhaps, we should demand they clean their own houses before turning them loose on others.

    The system is corrupt & the players who break the rules never get punished as they should... and people they railroad still get railroaded b/c the courts decide the train was dispatched in good faith.

    Screaming about people not having respect for the law when they set such an awesome example forgiving their own cogs from the small simple slips all the way up to the deceased was cuffed in the back of the squad car, had a gun no one found, and shot himself in the head... with his hands still behind his back.

    If the system doesn't apply to all evenly, it is broken and undermines everything the country was built on.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Aug 2018 @ 1:52am

    out_of_the_blue's not going to like this, is he? He hates it when authority is challenged.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Aug 2018 @ 3:15am

    All actions taken by immigration officials in the course of their duties—even criminal acts— are necessarily intertwined with the execution of immigration policy.

    Allowing this claim to continue would result in the court being swamped by similar complaints from aggrieved plaintiffs. The government feels this would be an unacceptable burden on ICE and the court.

    Translation:
    WE do what we have to do. We did this a lot, wink wink, you might want to give us a pass on this for, you know, convenience?

    reply to this | link to this | view in chronology ]

  • identicon
    Digirati, 23 Aug 2018 @ 5:28am

    We have the power....

    gosh whats next? Maybe a concerted effort to undermine "people you don't like"? like poor hispanics, or rich presidents? maybe we are equal under the (currpt)law!!

    reply to this | link to this | view in chronology ]

  • identicon
    thebosz, 23 Aug 2018 @ 3:16pm

    Can we trade?

    Maybe we can give Love's citizenship to Lanuza, who sounds like he might actually value it.

    reply to this | link to this | view in chronology ]

  • identicon
    peter, 24 Aug 2018 @ 2:20am

    Disturbing.

    "Love also argued that allowing this claim to continue would result in the court being swamped by similar complaints from aggrieved plaintiffs."


    Are you trying to tell us there are many many other ICE attorneys performing similar illegal acts?


    Disturbing.....assuming he is telling the truth that is.

    reply to this | link to this | view in chronology ]


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