Suing the US gov’t for wrongful deportation
Joekerr
amnesty... with cost being a factor not discussed by the deport
crowd... and now......
By Lourdes Santos Tancinco
Philippine Daily Inquirer First Posted 17:52:00 07/23/2009 Filed
Under: Crime and Law and Justice, Crime, Migration, Travel & Commuting
A FILIPINO couple who believe they were wrongly deported are suing the
United States government for half a million dollars.
The case, reported on a news website, has caught the attention of many
immigrants. Can immigrants win against big government?
According to the news report, these are some of the facts of the case:
The husband arrived in the US in 1985, with the wife following 10
years later. The report did not mention the immigration status of the
couple at the time of their deportation. At any rate, the couple
claimed they did not receive a Notice to Appear at a deportation
hearing against them, resulting in their failure to appear. Because of
their nonappearance, an immigration judge apparently signed an order
for their deportation.
At the time they were taken into custody and deported in 2005, the
couple protested, saying they had a pending motion before the
deportation court explaining their failure to appear and requesting
they be afforded an opportunity to be heard. However, the US
Department of Homeland Security, through the Immigration and Customs
Enforcement (ICE) office, went ahead and deported them back to the
Philippines.
The couple won their appeal. A return to the US was arranged by their
lawyer. They returned to the US two years ago. They then filed a claim
against the US government for wrongfully deporting them. They are
seeking half a million dollars in damages.
Reasons for deportation
Those who enter the US must have a valid visa to stay and work. Once a
nonimmigrant oversteps the limits and conditions of the visa, he or
she loses the right to stay in the country. It is the obligation of
the Department of Homeland Security, through the ICE, to send notices
to appear and take into custody nonimmigrants who have fallen out of
status.
With the big number of undocumented aliens, the ICE prioritizes those
who are up for deportation. Noncitizens with criminal cases and final
orders of deportation are among the first to be deported to their home
countries. After the 9/11 terrorist attacks, the ICE launched
Operation Return to Sender which speeds up the deportation of aliens
with final deportation orders.
The Filipino couple were apparently subjects of a final order of
deportation. Their motion to reopen the case was reportedly approved
after they had already been deported.
Motions to reopen
As a general rule, the ICE may enforce the final order of deportation
unless there is a court order staying the deportation of individuals.
The ICE has the authority to take into custody all individuals subject
to deportation. This is what they refer to as “mandatory detention.”
The deported husband argued that since there was a pending motion to
reopen the case, he and his wife should not have been deported.
Generally, the ICE is not prevented from removing an individual if the
order of deportation is final unless there is a properly filed motion
or appeal. Also, there is an automatic stay of deportation only if the
motion is filed as a result of an “in absentia” order of deportation.
This means the failure to appear was due to the lack of proper notice.
The ICE and the immigration court must be duly informed of this
automatic stay.
Noncitizen’s constitutional rights
Both citizens and noncitizens in the US are generally protected
against arbitrary federal and state action. The constitutional
safeguards of due process and equal protection of the law apply. The
Federal Constitution’s Fifth Amendment explicitly states that no
“person” shall be deprived of life, liberty, or property without due
process of law. The Fourteenth Amendment commands that no “person”
shall be denied equal protection of the law. However, in some areas,
such as in employment and property rights, noncitizens may not enjoy
the same rights as citizens.
It is not unusual for an individual who feels aggrieved by federal
action to sue the US government for damages. The basis for these
lawsuits may be the Federal Tort Claims Act (FTCA) or the Bivens
Claims against individual officials for violating the immigrant’s
constitutional rights. Under the FTCA, the aggrieved immigrant may
claim damages for false arrest, battery, and intentional infliction of
emotional distress.
As a defense, the US government can argue that it is not liable if the
employee’s conduct involved an element of judgment or choice and its
exercise was grounded in social, economic, or political policy.
The claim can prevail
A complete analysis of the case is not possible here because there are
many details missing from the news item on the couple’s case. The
report states that the wife, a registered nurse, is “under petition”
by a US employer. Hopefully, she now has a valid immigration visa that
authorizes her to stay and work in the US.
To prevail in their suit for damages, the Filipino couple must prove
not merely the damage done but also the fact that the ICE agents went
beyond their call of duty in removing them from the US.
Under the law, the US government may show that the ICE employees were
performing their official functions—even if there was an abuse of
discretion.
On the other hand, the Filipino couple do not deserve unjust treatment
and the harsh effects of deportation. What happened to them was not
extraordinary. There have been many complaints against what many
deemed a restrictive and unreasonable immigration policy during the
Bush administration, particularly after the terrorist attacks of 2001.
Nevertheless, the ICE agents are expected to exercise reasonable
judgment in the performance of their functions. This case could be
another reminder that federal officials are not above the law.
John B
"Joekerr" <joek...@gmail.com> wrote in message
news:6e30137d-93c4-4606...@y7g2000yqa.googlegroups.com...
Reasons for deportation
Motions to reopen
Noncitizen�s constitutional rights
The claim can prevail
How would this be handled in the Phils?
John
Joekerr
> "Joekerr" <joeke...@gmail.com> wrote in message
Good question- we should have Bill look into it-but he's on vacation I
think....
Dirty Sick Pig
>>
>> The deported husband argued that since there was a pending motion to
>> reopen the case, he and his wife should not have been deported.
>>
>> Generally, the ICE is not prevented from removing an individual if the
>> order of deportation is final unless there is a properly filed motion
>> or appeal. Also, there is an automatic stay of deportation only if the
>> This means the failure to appear was due to the lack of proper notice.
>> The ICE and the immigration court must be duly informed of this
>> automatic stay.
>>
>>
>> Both citizens and noncitizens in the US are generally protected
>> against arbitrary federal and state action. The constitutional
>> safeguards of due process and equal protection of the law apply. The
>> �person� shall be deprived of life, liberty, or property without due
>> process of law. The Fourteenth Amendment commands that no �person�
>> shall be denied equal protection of the law. However, in some areas,
>> such as in employment and property rights, noncitizens may not enjoy
>> the same rights as citizens.
>>
>> It is not unusual for an individual who feels aggrieved by federal
>> action to sue the US government for damages. The basis for these
>> lawsuits may be the Federal Tort Claims Act (FTCA) or the Bivens
>> constitutional rights. Under the FTCA, the aggrieved immigrant may
>> claim damages for false arrest, battery, and intentional infliction of
>> emotional distress.
>>
>> As a defense, the US government can argue that it is not liable if the
>> exercise was grounded in social, economic, or political policy.
>>
>> The claim can prevail
>>
>> A complete analysis of the case is not possible here because there are
>> report states that the wife, a registered nurse, is �under petition�
>> by a US employer. Hopefully, she now has a valid immigration visa that
>> authorizes her to stay and work in the US.
>>
>> To prevail in their suit for damages, the Filipino couple must prove
>> not merely the damage done but also the fact that the ICE agents went
>> beyond their call of duty in removing them from the US.
>>
>> Under the law, the US government may show that the ICE employees were
>> discretion.
>>
>> On the other hand, the Filipino couple do not deserve unjust treatment
>> and the harsh effects of deportation. What happened to them was not
>> extraordinary. There have been many complaints against what many
>> deemed a restrictive and unreasonable immigration policy during the
>> Bush administration, particularly after the terrorist attacks of 2001.
>>
>> Nevertheless, the ICE agents are expected to exercise reasonable
>> judgment in the performance of their functions. This case could be
>> another reminder that federal officials are not above the law.
>>
>> How would this be handled in the Phils?
>>
>> John
>
> Good question- we should have Bill look into it-but he's on vacation I
> think....
Hmmmm. They are fighting for their right to a court hearing and
damages. But winning that suit doesn't change their status from TnT to
legal, green card carrying immigrants. But a half million bucks only?
These illegals haven't heard of inflation? How about notices being
posted on courthouse doors and in the legal legal notices section of
publications of general circulation? Duh.
Joekerr
>
> >> The deported husband argued that since there was a pending motion to
> >> reopen the case, he and his wife should not have been deported.
>
> >> Generally, the ICE is not prevented from removing an individual if the
> >> order of deportation is final unless there is a properly filed motion
> >> or appeal. Also, there is an automatic stay of deportation only if the
> >> This means the failure to appear was due to the lack of proper notice.
> >> The ICE and the immigration court must be duly informed of this
> >> automatic stay.
>
>
> >> Both citizens and noncitizens in the US are generally protected
> >> against arbitrary federal and state action. The constitutional
> >> safeguards of due process and equal protection of the law apply. The
> >> “person” shall be deprived of life, liberty, or property without due
> >> process of law. The Fourteenth Amendment commands that no “person”
> >> shall be denied equal protection of the law. However, in some areas,
> >> such as in employment and property rights, noncitizens may not enjoy
> >> the same rights as citizens.
>
> >> It is not unusual for an individual who feels aggrieved by federal
> >> action to sue the US government for damages. The basis for these
> >> lawsuits may be the Federal Tort Claims Act (FTCA) or the Bivens
> >> constitutional rights. Under the FTCA, the aggrieved immigrant may
> >> claim damages for false arrest, battery, and intentional infliction of
> >> emotional distress.
>
> >> As a defense, the US government can argue that it is not liable if the
> >> exercise was grounded in social, economic, or political policy.
>
> >> The claim can prevail
>
> >> A complete analysis of the case is not possible here because there are
> >> report states that the wife, a registered nurse, is “under petition”
> >> by a US employer. Hopefully, she now has a valid immigration visa that
> >> authorizes her to stay and work in the US.
>
> >> To prevail in their suit for damages, the Filipino couple must prove
> >> not merely the damage done but also the fact that the ICE agents went
> >> beyond their call of duty in removing them from the US.
>
> >> Under the law, the US government may show that the ICE employees were
> >> discretion.
>
> >> On the other hand, the Filipino couple do not deserve unjust treatment
> >> and the harsh effects of deportation. What happened to them was not
> >> extraordinary. There have been many complaints against what many
> >> deemed a restrictive and unreasonable immigration policy during the
> >> Bush administration, particularly after the terrorist attacks of 2001.
>
> >> Nevertheless, the ICE agents are expected to exercise reasonable
> >> judgment in the performance of their functions. This case could be
> >> another reminder that federal officials are not above the law.
>
> >> How would this be handled in the Phils?
>
> >> John
>
> > Good question- we should have Bill look into it-but he's on vacation I
> > think....
>
> Hmmmm. They are fighting for their right to a court hearing and
> damages. But winning that suit doesn't change their status from TnT to
> legal, green card carrying immigrants. But a half million bucks only?
> These illegals haven't heard of inflation? How about notices being
> posted on courthouse doors and in the legal legal notices section of
> publications of general circulation? Duh.
1/2 a mill is probably just a starter.... one they prove the
deportation is illegal they'll pile on and attack various associated
agencies...
Boracay Bill
I googled around a bit and found that the report which started this
thread was apparently sparked by a 23 July PDI story at
http://globalnation.inquirer.net/viewpoints/viewpoints/view/20090723-216886/Suing-the-US-govt-for-wrongful-deportation
which seems to have spun off of a 4 July 2009 ABS-CBN story at
http://www.abs-cbnnews.com/pinoy-migration/07/04/09/pinoy-couple-sues-us-govt-wrongful-deportation
which names the couple as Carlos Sison and his wife Amelyn Banares
Neither story gives much info. Apparently Carlos had been in the US
(presumably legally) since 1985, Amelyn arrived in about 1995, and
they married sometime between 1995 and 2005. Apparently, Amelyn had
been sponsored for a resident visa as a nurse-employee sometime prior
to 2005 by her employer. Amelyn, then, had apparently sponsored Carlos
as her husband. That is about the extent of the details of their
immigration status which I glean from the stories. The stories don't
really spell out the details of why DHS challenged their status but
they do say that an immigration court ordered their deportation for
their alleged(??) failure to appear in court after they had failed to
respond to one or more "notices to appear". Carlos, the ABS-CBN story
says, claims that the letters were sent to an old address.
My guess is that persons with whatever their immigration status was
are required to keep the DHS informed of current contact information.
My guess is that DHS procedure is to send "notices to appear" to
whatever contact address the subjects have supplied.
Joekerr
> I saw this thread while checking the internet in an internet cafe.
>
> I googled around a bit and found that the report which started this
> which seems to have spun off of a 4 July 2009 ABS-CBN story athttp://www.abs-cbnnews.com/pinoy-migration/07/04/09/pinoy-couple-sues...
Yes that's true resident aliens are required to make notifications at
certain times etc
apparently their visa's expired or they didn't answer a notification
or both...
but as an employee of the govt I know that their database is
worthless...
despite 4 change of address with the post office and several direct
reports to my own boss.... my dept still sends mail to an address
that's over 10 years old.... but my pay stub still comes to my current
one! Go figure!
Dirty Sick Pig
> Yes that's true resident aliens are required to make notifications at
> certain times etc
Only changes of address and Selective Service registration upon reaching
18 years of age.
> apparently their visa's expired or they didn't answer a notification
> or both...
They are TnT, nothing more, nothing less. But they found a lawyer type.
> but as an employee of the govt I know that their database is
> worthless...
Maybe you should quit and be Pig Enterprises' man in the Pacific. See
lots of, ah, wet WW2 relics and souvenirs.
> despite 4 change of address with the post office and several direct
> reports to my own boss.... my dept still sends mail to an address
> that's over 10 years old.... but my pay stub still comes to my current
> one! Go figure!
Pay stub?!!!!! Que horror! You've never heard of Direct Deposit yet?
PayPalPig
:D
Joekerr
> Joekerr wrote:
> > Yes that's true resident aliens are required to make notifications at
> > certain times etc
>
> Only changes of address and Selective Service registration upon reaching
> 18 years of age.
>
> > apparently their visa's expired or they didn't answer a notification
> > or both...
>
> They are TnT, nothing more, nothing less. But they found a lawyer type.
>
> > but as an employee of the govt I know that their database is
> > worthless...
>
> Maybe you should quit and be Pig Enterprises' man in the Pacific. See
> lots of, ah, wet WW2 relics and souvenirs.
Oh dear I don't have scuba training LOL!
> > despite 4 change of address with the post office and several direct
> > reports to my own boss.... my dept still sends mail to an address
> > that's over 10 years old.... but my pay stub still comes to my current
> > one! Go figure!
>
> Pay stub?!!!!! Que horror! You've never heard of Direct Deposit yet?
>
> PayPalPig
> :D
Uh yes... direct deposit is how one gets a "stub" instead of a "check"
bwahahahahar!!!!
Dirty Sick Pig
> On Jul 29, 3:13 am, Dirty Sick Pig <herd_boar@pigs_lodge_1.org> wrote:
>> Joekerr wrote:
>>> Yes that's true resident aliens are required to make notifications at
>>> certain times etc
>> Only changes of address and Selective Service registration upon reaching
>> 18 years of age.
>>> apparently their visa's expired or they didn't answer a notification
>>> or both...
>> They are TnT, nothing more, nothing less. But they found a lawyer type.
>>> but as an employee of the govt I know that their database is
>>> worthless...
>> Maybe you should quit and be Pig Enterprises' man in the Pacific. See
>> lots of, ah, wet WW2 relics and souvenirs.
> Oh dear I don't have scuba training LOL!
The head puke in Cebu didn't even have straightleg training except in
numbers crunching but he's doing just fine running the higher species.
Actually, more than fine. I hired him for his looks but he turned out
to be as ugly inside as I am. BWAHAWR!
>>> despite 4 change of address with the post office and several direct
>>> reports to my own boss.... my dept still sends mail to an address
>>> that's over 10 years old.... but my pay stub still comes to my current
>>> one! Go figure!
>> Pay stub?!!!!! Que horror! You've never heard of Direct Deposit yet?
> Uh yes... direct deposit is how one gets a "stub" instead of a "check"
> bwahahahahar!!!!
Shit! No online LES for you? I think you should be paid by DFAS again
and help save trees. One hundred million stubs is equivalent to one
sequoia. https://mypay.dfas.mil/mypay.aspx?FLPS=LES~DCPS
TreeHuggerPig
Joekerr
we don't use that option yet.... but hey you know the govt they're
always the last to do anything- even if they insist everyone should do
it LOL!
igotskillz
nice ones online though.
Naturally, i only met greencard-for-porn fillups who masqueraded as an
abuse shelter.
I know nothing of the aforementioned folks. It's a darn shame that so
many fillups gathered together to help scam out country after we freed
fillupland.
Dirty Sick Pig
".....freed fillupland." You ignorant son of a fucking prostie heifer!
The Philippines was a Commonwealth of the U.S. at the outbreak of WW2.
Filipinos then were U.S. nationals.
If Puerto Rico was attacked and occupied today by the Japs and Puerto
Ricans (U.S. nationals) fought for the U.S., will you ask them for
gratitude for liberating Puerto Rico, like you seem to be asking "Fillups?"
So the legend that "No Japanese soldier ever set foot on U.S. soil" is
all bullshit, just like what you have between the ears. They were in
the Philippines-USA and Guam-USA.
If you ever need education, NotGotSkillz, you fucking idiot, we'll be
glad to oblige. Shame, fucking shame. Such ignorance! Hey, did you
even finish grade school, huh?
But of course its NoGotSkillz, the dumb ass online glambler.
In-Your-Ass Pig
thats senator al frankin to you bob
>
> - Show quoted text -
get garfunkel
Joekerr
art Garfunkel??? Dis Paul Simon dump him again?
thats senator al frankin to you bob
>
> - Show quoted text -
that atty that get pinoy tnts become green card holders
LeeBat
>But of course its NoGotSkillz, the dumb ass online glambler.
>
>In-Your-Ass Pig
Ah, Pigsa, tell us how you really feel;
LeeBat
Mr Nice Guy
That's Congressman Jovito S. Palparan, Jr. to you
> get garfunkel
Get Simon, O Simple One.
That's Congressman Jovito S. Palparan, Jr. to you
> On Aug 1, 6:40 pm, Joekerr <joeke...@gmail.com> wrote:
>> On Aug 1, 8:15 pm, thats senator al frankin to you bob
>> art Garfunkel??? Dis Paul Simon dump him again?- Hide quoted text -
>>
Was that how your parents got their green cards?