Saturday, May 28, 2011 | 2 a.m.
The three UNLV law students thought they had a pretty routine case to argue before the federal judges, but they got far more than they bargained for.
They emerged from the 9th U.S. Circuit Court of Appeals with an unexpected landmark immigration victory that means tens of thousands of people, maybe more, who are fighting deportation stand a greater chance of proving their U.S. citizenship.
For one of the Boyd Law School students, Holly Cheong, who stated the case and took a 15-minute grilling by the judges, “it was pretty intimidating.”
The immediate beneficiary is construction worker Sazar Dent of Ohio, who seeks to convince a federal judge in Arizona of his citizenship by using government files previously denied the 43-year-old native of Honduras.
The appeals court heard the case last year and set a precedent by ruling all individuals facing deportation should have access to their “alien files,” or A-files that the Homeland Security Department keeps on them. The ruling means they will be allowed to see documents such as adoption papers, applications for naturalization and correspondence with immigration authorities.
The ruling will stand if the government doesn’t appeal to the U.S. Supreme Court by May 31.
Before, the government had only given A-files to those who tried to prove they are lawful permanent residents, also known as green-card holders or permanent resident aliens. Lawful permanent residents are citizens of their native countries but not yet U.S. citizens.
The government refused to give Dent his file because it considers him a lawful permanent resident. What the government disputes is Dent’s claim that he is a U.S. citizen, and the government hasn’t turned over A-files to individuals claiming citizenship. This distinction is important because Dent had a felony conviction for narcotics possession, which would make him eligible for deportation if he is a permanent legal resident but not if he is a U.S. citizen. His A-file might help him prove his citizenship.
The ruling’s potential effect is massive because it covers all nine of the 9th Circuit states, including Nevada, California and Arizona, where a combined 85,000 deportation cases are handled annually, according to Boyd associate law professor Anne Traum.
“This case makes sure our immigration courts are functioning fairly and with enough transparency that every court can have confidence in the records developed by immigration courts,” Traum said. “A lot of people in the courts are talking about this case. If there is a question about your citizenship, you should have access to your A-file.”
Boyd’s Appellate Clinic, which gives third-year law students the opportunity to participate pro bono in appellate cases, caught wind of Dent’s immigration battle and approached his attorney for permission to represent Dent before the 9th Circuit.
Traum’s team included Boyd graduates Cheong, Corina Rocha Pandeli and Kris Zeppenfeld when they were third-year law students. The case began as a challenge to an immigration judge’s ruling that Dent should be deported for committing what the students believed was a fairly minor crime. As the Boyd team delved into legal research, including 30 years of case law and congressional transcripts, they found that it was a far more complicated immigration case caused by a series of government errors.
Cheong got 15 minutes to argue the due process case before 9th Circuit Judges Andrew Kleinfeld, A. Wallace Tashima and Sidney Thomas in San Francisco. To prepare, she first participated in two moot courts, in which she argued her case before volunteer attorneys in Las Vegas.
Central to her argument, which she delivered without having to rely on notes, was the notion that Dent’s constitutional rights to due process were violated during his deportation hearing because he was deprived of his A-files, making it more difficult to prove he was a naturalized U.S. citizen.
Cheong, a law clerk for the Nevada Supreme Court, said “Kleinfeld is hot on the bench, which means he asks a lot of questions. But I think getting our points across without getting rattled impressed him.”
What amazed Zeppenfeld most is that it turned into an important immigration case that started out as a routine criminal matter.
“It was a little weird because we didn’t think it would be this type of case when we started,” said Zeppenfeld, now in private practice in Las Vegas.
Pandeli is a law clerk for U.S. Bankruptcy Court in Las Vegas.
The ruling has vaulted the law school into the spotlight among immigration lawyers nationwide who are hailing the Dent decision as a landmark.
Immigration attorney Carlos Batara of Escondido, Calif., wrote on his website: “To a casual observer, the 9th Circuit’s decision may not seem like a major legal event. Yet, for immigrants, the opportunity to obtain their A-file, while their cases are still pending, could become a new weapon in their fight against deportation and removal.”
Dent has taken a convoluted path in his quest to prove citizenship. He has lived in the United States since 1981 but the Homeland Security Department wanted him deported to Honduras after he pleaded guilty in Arizona Superior Court in 2003 to narcotics possession and received a one-year prison sentence.
At a 2005 deportation hearing, Dent argued he was a citizen, producing both an adoption document and his school records after the immigration judge stated he hadn’t been informed by the government that Dent was adopted. Dent said he was adopted in 1981 at age 14 by a woman who frequently traveled to Honduras to assist poor people. He also provided the judge with a copy of her 1950 application for Social Security, which indicated she was born in Kansas in 1905.
But Dent couldn’t prove his deceased adoptive mother was born in the U.S. because a county courthouse fire in Kansas destroyed her birth certificate and those of others born before 1911. That led the judge to conclude that Dent couldn’t prove his citizenship, making him eligible for deportation.
The Immigration Appeals Board initially remanded the case to the judge on a technicality, then upheld the deportation order.
The order never reached Dent, though, because it was sent to the wrong address. In May 2008 he was arrested in Ohio for illegal re-entry into the U.S., but he argued he never learned he had been ordered deported. The government conceded this error and dismissed its illegal re-entry charge in 2009, but an attorney for Dent asked the Immigration Appeals Board to reissue the deportation order so it could be reviewed by the 9th Circuit.
That’s when the UNLV team got involved.
Traum and the students argued that the government maintained an A-file on Dent since 1982, when his adoptive mother petitioned for him to be naturalized, but never gave that file to Dent, the immigration judge or the Immigration Appeals Board. The 9th Circuit ruling also led to Dent’s release from an Ohio jail, where he had been held on Homeland Security Department orders since 2008 for what it perceived to be illegal reentry into the country.