Sunday, September 16, 2007

Case Terminated For Not Giving Juvenile An I-770 Form

Jason Cade at The Door won termination of an immigration court case against his client because DHS and ICE did not issue a Form I-770 Notice of Rights and Disposition as required for anyone under 18 years old. The case was Maria E-E-M- (N.Y.C. Imm. Ct. Sept. 6, 2007) before Judge Jeffrey Romig!

The regulation at 8 CFR 1236.3(h) requires giving a Form I-770 form to an unaccompanied juvenile. A question that had never before been resolved is what remedy the court should grant to an unaccompanied juvenile who was not given the forms absolutely required by the immigration regulations.

Under expansive protections by the Second Circuit, when a regulations protects a fundamental right and DHS violates it, the proceeding is invalid. Therefore, the IJ terminated the case, regardless of whether the violation caused prejudice against the juvenile.

This is similar to the analysis in suppression motions in immigration court. When the government obtains evidence (such as through interrogations) in a way that violates a regulation enacted to protect an immigrant's fundamental rights, there is a very strong argument that the evidence must be suppressed in immigration court. Usually, illegal interrogations are the only source of the information that the government will try to use in immigration court. As a result, the IJ will terminate the case because the government cannot prove that the immigrant was born outside the US or is out of status.

Both avenues get to the same result -- the IJ will terminate the case. Just in one avenue, it's a direct route to termination. In the other, the IJ suppresses evidence which cripples the government and leads to terminating the case.

If you are litigating these cases, it'd probably be best to request direct termination for violating the regulation and, in the alternative, suppressing all of the government's offered evidence which then will result in terminating the case unless the government somehow can rely on untainted evidence.


At 3:32 PM, Blogger Al Fargione said...

Hello. This might sound odd, but I am getting desperate. I am working for a small immigration law firm this summer, and I have been asked to research the ramifications of the Services failure to read the form I-770 to a 9 year old minor in a language which he could understand. I came across your posting discussing the Maria E-E-M case, and my thought is this: If that court dismissed the case for failure to give the I-770, perhaps we could argue that our case should be dismissed b/c even though the form was received, our client could not understand what it was he was receiving, which is similiar, if not equivalent, to never being given the form at all. After that long story, I was hoping you could provide me with a cite to the Maria E-E-M case, and wonder if you have any other thoughts on arguments which we could raise. Thanks for your help! Please reply to:


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