Judge: Immigrant’s ouster ‘draconian,’ but must stand

By Cy Ryan

Tuesday, Aug. 26, 2008 | 2 a.m.

By all appearances, Erika Garcia was a typical, law-abiding Las Vegan.

She worked and stayed out of trouble. In 1997, she married Alberto Rincon, a permanent U.S. resident, and the couple had a child.

But because Garcia de Rincon twice entered the United States illegally from her native Mexico, federal officials have been trying for years to deport her.

An appeal to stop her deportation was rejected last week by the 9th U.S. Circuit Court of Appeals, which cited a lack of jurisdiction.

“Other than her unlawful entries into the United States, de Rincon has been law-abiding and productive,” the court stated. “Although it gives us no pleasure to do so, we dismiss de Rincon’s consolidated appeal for lack of jurisdiction.”

Garcia De Rincon has already returned to Mexico and must wait 20 years before applying to reenter the United States.

She first sneaked into the country in 1995. In 1999 she returned to Mexico to visit her sick mother and was stopped at the border by U.S. authorities. She admitted to officials she had illegally entered the country.

A removal order was issued and she returned to Mexico. But within days, she was back with her family in Las Vegas. She and her husband purchased a home and had another child.

In 2002, she filed an application for admission to the United States. After a search of federal records showed her 1999 removal from the United States, immigration officials had her immediately arrested and issued an expedited removal order.

Thus began her court battle to return to this country.

U.S. District Judge Philip Pro in Las Vegas ruled against her on grounds he did not have jurisdiction in the case. But, he noted, her removal had imposed the “draconian” condition of barring Garcia de Rincon from reapplying to return to the United States for 20 years. Pro transferred the case to the Circuit Court of Appeals.

Garcia De Rincon sought to have the appeals court send the case back to Pro to decide whether she had been denied due process in her 1999 removal from the country.

Judge N. Randy Smith, writing the unanimous decision for the appeals court, said it was “jurisdictionally barred from hearing de Rincon’s challenge” by federal law.

“So, while the result may be unsatisfying — and unduly harsh given de Rincon’s family situation and a record indicating that she is otherwise an upstanding person — we must dismiss de Rincon’s habeas petition for lack of jurisdiction.”