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In the United States District Court
for the Western District at Seattle

 

_______________________________________

IRFAN GOKCE

 

          Petitioner/Plaintiff

 

v.

 

WILLIAM JOHNSTON, District Director, Immigration and Naturalization Service; MICHAEL GARCIA, Acting Commissioner, Immigration and Naturalization Service; KEVIN D. ROONEY, Director, Executive Office for Immigration Review; JOHN ASHCROFT, Attorney General

 

          Respondents/Defendants

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No. C02-2568R

 

 

Brief of Amici in Support of the INS's Motion to dismiss and Memorandum Opposing Motion for Order Appointing Counsel

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Table of Contents

 

The Case

 

 

1

Statement of Amicus Curiae

 

 

2

Motion for Leave To File

 

 

3

Table of Authorities

 

 

4

Argument

 

 

4

Conclusion

 

15

 

 

 

The Case

 

1.                  Mr. Irfan Gokce ("petitioner"), a Turkish national illegally present in the United States, and a repeat offender, was arrested by immigration authorities ("respondents") on September 29, 2000 and removal proceedings were initiated against him by the United States.

 

2.                  Even though the law specifically precludes foreign nationals from accessing taxpayer funded legal counsel in deportation proceedings, petitioner is now demanding such counsel.

 

3.                  Petitioner claims that his "mental disability," evinced by dramatic displays and belligerent behavior in the courtroom, prevent him from receiving a fair hearing unless taxpayers provide him with free counsel.

 

4.                  Counsel for petitioner claims petitioner has been unable to retain counsel[1].  Nevertheless, counsel for petitioner on this case has spent a great deal of effort and time.  With all due respect, it appears counsel, which includes the American Immigration Law Foundation, an organization with a vested interest in drastically expanding the scope of public funding for immigration proceedings, is trying to use this case as a way to broaden the means by which advocates for illegal aliens may continue to advocate for illegal immigration, but to be paid for it at taxpayer expense.

 

5.                  It will be argued below that the motion to dismiss should be granted.  It will be shown that neither the Constitution nor the Immigration and Nationality Act require court-appointed or taxpayer-funded legal representation for petitioner.  It will be further shown that petitioner's arguments for the granting of such a radical new right are without merit. 

 


Statement of Amicus Curiae

 

6.                  Amici, Friends of Immigration Law Enforcement (FILE), is a non-profit organization of attorneys, law enforcement officers, state and federal legislators and staff, and immigration experts concerned about the widespread disregard for immigration law in the United States.  FILE is interested primarily in helping Americans who have been personally harmed by lack of immigration law enforcement, though it also authors legislation on the state and federal level, provides legislative analysis, and files notices, briefs and other legal documents.

 

7.                  FILE has an interest in this case because a ruling in favor of petitioner would drastically expand the ability of those whose interest it is to thwart the will of Congress on matters of immigration policy and law to do so.  Furthermore, a ruling in favor of petitioner would significantly increase the likelihood of abuse in the asylum process—a process already susceptible to fraud.[2]  Such fraud makes a mockery of the generosity of the American people, threatens the national security, and jeopardizes the ability of the truly deserving to gain sanctuary from real persecution.

 

8.                  The public interest will be well-served by including in the deliberations over this difficult case a voice representing the 70% of Americans who say that controlling and reducing illegal immigration should be a very important goal of U.S. foreign policy.[3]

 

9.                  FILE is incorporated as a non-profit public interest corporation headquartered at 310 6th St S.E., Washington, DC 20003.

 

Motion for Leave To File

 

10.              Counsel for respondents, Mr. Chris Pickrell, AUSA, (206) 553-4088, has granted consent for this filing.  A voice message to counsel for petitioner, Mr. Robert Pauw, (206) 682-1080, asking for consent to file was left for counsel at 8:45 a.m. PST on April 16, 2003, but was unreturned.

11.              Amici beg leave of this court to file this brief as provided for under Rule 29 of the Federal Rules of Appellate Procedure.  [Rule 32(a)(7):  less than 4500 words]

 


 

Table of Authorities

 

 

Cases

 

 

Aguilera-Enriquez v. INS 516 F.2d 565

 

7, 10

Castro-O'Ryan v. INS 847 F.2d 1307

 

6

Escobar-Ruiz v. INS 787 F.2d 1294

 

7

Gagnon v. Scarpelli 411 U.S. 778

 

10

In Re Gault 387 U.S. 1

 

10

Lassister v Dept of Social Servs. 452 U.S. 18

 

9

Nelson v. INS 232 F.3d 258

 

12

Reno v. Flores 507 U.S. 292

 

5

Rios-Berrios v. INS 776 F.3d 859, 862

 

6

Vitek v. Jones 445 U.S. 480

 

9, 14

Zadvydas v. Davis 533 U.S. 678

 

15

 

 

 

Statutes

 

 

8 U.S.C. §1229a(b)(4)(A)

 

5

 

 

 

Administrative Codes

 

 

8 C.F.R. § 240.4

 

13

 

 

 

Other Authorities

 

 

U.S. Department of Justice, OIG

 

2

Worldviews 2002

 

3

2001 Statistical Yearbook of the INS

 

12

Saunders' Encyclopedia and Dictionary of Medicine, Nursing and Allied Health

 

13



Argument

 

Petitioner's main argument, proceedings "unfair," not applicable to present case

 

12.              Petitioner argues that "he cannot have a fundamentally fair hearing under the Fifth Amendment and he cannot exercise his statutory rights, including the right to present evidence in his behalf, unless counsel is appointed to represent him."[4]  Petitioner argues that such "fairness" includes the ability to present corroborating evidence in support of asylum claims, the ability to decide competently which evidence to present, and the ability to gather such evidence.[5] 

 

13.              Petitioner argues that the ability of a detained deportee to accomplish the above is augmented by having access to professional counsel.  This is undoubtedly true.  However, this argument is irrelevant to the present case. 

 

14.              In any legal proceeding, all parties may be able to present a better case if they have access to professional counsel.  However, there is no right to such counsel at taxpayer expense in every kind of civil legal proceeding.  In particular, Congress has specifically declared that deportees do not have such right.[6]

 

Fifth Amendment right to counsel not applicable in present case

 

15.              Petitioner, while agreeing that he has no Sixth Amendment right to counsel, nevertheless maintains that he has a right to publicly funded counsel under the Fifth Amendment.  Petitioner has no such right. 

 

16.              While petitioner correctly notes that aliens have the right to due process in deportation proceedings, the two cases petitioner cites to establish this right are curiously chosen, since both cases argue against petitioner.

 

17.              The first, a case having to do with the detention and custody of alien juveniles, actually found that "each unaccompanied juvenile [does not] have a substantive right to an individualized hearing on whether private placement would be in his "best interests." Reno v. Flores 507 U.S. 292 (1993).  In the decision, noting, "Congress has granted the Attorney General broad discretion regarding detention," the court actually restricted the due process privileges of the aliens in detention.   The court noted that "[a]ny remaining constitutional doubts are eliminated by the fact that almost all respondents are aliens suspected of being deportable" Id. (citing 8 U.S.C. § 1252(a)(1)).   The court also found that the INS detention policy "rationally pursues a purpose that is lawful for the INS to seek" Id.   

 

18.              In the present case, 1) the INS is rationally pursuing a purpose that is lawful for the INS to seek, 2) petitioner, as a member of a class of deportable aliens, has substantially reduced due process privileges, and 3) since Congress has granted the Attorney General broad discretion regarding the detention and removal of deportable aliens, the procedural regulations established by the Attorney General, and followed in the present case, including assessment of mental competence, are more than adequate to safeguard petitioner's rights under 8 C.F.R. §240.4.

 

19.              The second case petitioner cites would seem to undermine his argument even more.  While it is true that the decision found that an "alien is entitled to due process under the Fifth Amendment in his deportation hearing," Rios-Berrios v. INS, 776 F.3d 859, 862 citing United States v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir.1978), the ruling specifically held that "due process mandates that he is entitled to counsel of his own choice at his own expense under terms of the Immigration and Nationality Act." Id. [emphasis added].  The decision further noted that "Section 242(b) of the Act, 8 U.S.C. § 1252(b), directs the Attorney General to adopt regulations to assure the integrity of the deportation process (e.g. reasonable notice of charges, reasonable opportunity to present and examine evidence, sufficiency of evidence to support deportability, etc.). Id. [emphasis added].

 

20.              In the present case, 1) petitioner has enjoyed all privileges of due process afforded to persons in his circumstances, and 2) the INS has acted within its regulations and has made all reasonable efforts to assure the integrity of the proceedings.

 

21.              Petitioner argues "[t]he legislative history of Section 292 of the INA confirms that in enacting this provision Congress intended to confer a right."[7]  In support, petitioner cites Castro-O’Ryan v. INS 847 F.2d 1307.  However, in Castro, the court specifically found that the right to counsel in deportation hearings is not a constitutional right, but rather a humanitarian right granted by Congress "at no expense to the Government."

 

22.              In the present case, petitioner cannot use Castro to argue that he has a constitutional right to free counsel; rather, Castro would more easily support the government's position that petitioner has no Fifth Amendment right to counsel.

 

23.              Petitioner asks the court to adopt a "case-by-case approach" to the question of whether "fundamental fairness requires the appointment of counsel" in the present case.[8]  Petitioner cites two cases in support of this approach, and, again, both cases seem to argue against, rather than for, the petitioner's Motion for Order Appointing Counsel.

 

24.              In the first case, the petitioner’s claim that appointed counsel may be required in some cases is not supported by the text.  Indeed, the petitioner in that case was denied his petition because

 

"The lack of counsel before the Immigration Judge did not prevent full administrative consideration of his argument. Counsel could have obtained no different administrative result. 'Fundamental fairness,' therefore, was not abridged during the administrative proceedings, and the order of deportation is not subject to constitutional attack for a lack of due process." Aguilera-Enriquez v. INS 516 F.2d 565, 569.

 

25.              Petitioner appears to be arguing that, because there is a hypothetical case imaginable in which the lack of counsel before an Immigration Judge could prevent full administrative consideration of a petitioner's argument, the ruling in Aguilera holds that, despite the clear intent of Congress, any alien under deportation proceedings has a latent right to counsel on a case-by-case basis.  This clearly is not the plain meaning of the holding in that case.

 

26.              In the second case, petitioner cites a Ninth Circuit case in which an illegal alien's "application for attorney's fees is denied at this time, because he is not a 'prevailing party.'" Escobar-Ruiz v. INS, 787 F.2d 1294 (1986).  Petitioner quotes from the ruling

 

"We note that Congress' treatment of indigent aliens in § 292 may not be constitutional as applied in individual cases. The fifth amendment guarantee of due process applies to immigration proceedings, and in specific proceedings, due process could be held to require that an indigent alien be provided with counsel despite the prohibition of section 292." Id. [emphasis added]

 

27.              However, the court does not specify under which immigration proceedings the Fifth Amendment would require an indigent alien be provided with counsel.  Since it is well established that there is no Fifth Amendment right to counsel in civil actions except when liberty is at stake, it is possible, even likely, that the Ninth Circuit's "specific proceedings" language refers only to those actions that might result in the deprivation of a person's liberty, in which case there is a blanket right.  It is certainly quite a stretch to take the language of the passage above to mean, as petitioner argues, that the Ninth Circuit "indicated that it will use a case-by-case approach in determining whether appointed counsel is necessary as a matter of fundamental fairness."[9]

 

28.              It is, in fact, over the entire matter of deprivation of liberty that petitioner's argument that the Fifth Amendment gives him the right to counsel is most flawed.  Several of the cases petitioner cites to argue his right to counsel under the Fifth Amendment are wrongly cited in the present case, since they all have to do with personal liberty.  In the present case, petitioner is not threatened with loss of liberty if he loses either his Motion for Order Appointing Counsel, or his asylum application.  (Ironically, denial of petitioner's Motion for Order Appointing Counsel may actually speed petitioner to liberty.)  Thus, petitioner may receive a fair hearing without a Fifth Amendment right to free counsel. 

 

29.              Indeed, one of the citations petitioner uses to argue petitioner's Fifth Amendment right to counsel, actually makes the opposite case, and makes it explicitly:

 

"With regard to what the "fundamental fairness" requirement of the Due Process Clause means concerning the right to appointed counsel, there is a presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty. The other elements of the due process decision—the private interest at stake [e.g., petitioner's claims of possible persecution in his home country], the government's interest [e.g., not over-burdening administrative proceedings], and the risk that the procedures used will lead to erroneous decisions—must be balanced against each other and then weighed against the presumption." Lassister v Dept of Social Servs. 452 U.S. 18, 101 S. Ct. 2135 citing *19 Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 [emphasis added].

 

30.              Petitioner argues "[t]he Supreme Court has found that appointment of counsel is required under the Fifth Amendment in various civil contexts,"[10] and cites a total of five cases.  However, each of the five cases cited either weakens petitioner's claims outright or fails to support petitioner's assertion that he has a due process right to counsel in the present case due to inapplicability. 

 

31.              In the first case petitioner cites, the court found that "the involuntary transfer of a prisoner to a mental hospital implicates a liberty interest protected by the Fourteenth Amendment's due process clause." Vitek v. Jones, 445 U.S. 480, 500 (1980).  But, it was because of the liberty at stake, a stake absent in the present case, that the court held in Vitek that there was a right to counsel.  Thus the Fifth Amendment holding in Vitek is inapplicable in the present case.

 

32.              In the second cited case, a juvenile delinquent was found to have a right to counsel in a habeas proceeding.  But again, the cite is inapplicable to the present case because there was a liberty issue at stake, and the court equated the delinquency proceeding in serious to a felony prosecution.

 

"A proceeding where the issue is whether the child will be found to be 'delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the facts, to insist upon regularity of the proceedings, and to ascertain whether he has a defense and to prepare and submit it." In Re Gault, 387 U.S. 1, 36 (1967).

 

33.              The third case cited by petitioner, as already noted above, undermines petitioner's claims since it explicitly notes that an "indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of his physical liberty." Lassiter.  In the present case, petitioner is facing deportation, not loss of liberty, and thus has no due process of law right to counsel.

 

34.              In the fourth case cited by petitioner, the court held that a parolee or an indigent probationer was, indeed, afforded a due process right to counsel.  But, again, the issue at stake was loss of personal liberty:  "Even though the revocation of parole is not a part of the criminal prosecution, we held that the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process." Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973).

 

35.              In the fifth case cited by petitioner to argue for a due process right to counsel, the court held that "refusal to appoint attorney for indigent alien in proceeding before immigration judge did not deny due process." Aguilera.  As noted above, the text of the decision does not support petitioner's assertion that "appointment of counsel may be required in deportation proceedings."[11]  The court merely held that petitioner in Aguilera did not have a right to counsel.

 

36.              Petitioner might argue that the alleged "impasse" in which petitioner finds himself might represent "indeterminate detention," and, as such, makes the case a matter in which personal liberty is at stake.  Such an argument, if made, should be rejected since the current "impasse," insofar as one exists, is the result of a difference of interpretation between two courts—a difference that can be easily resolved between the two courts and this court.  It is easily seen that petitioner's position is not without end, and that, certainly, the petitioner's case does not warrant establishment of a radical new right.

 

37.              In sum, the unfairness that petitioner posits as the central part of his demand for taxpayer funded counsel under the Fifth Amendment is not supported by case law, is not supported by the Constitution, is counter to federal statute, and his demand should be rejected.

 

Mental Competency

 

38.              Petitioner correctly notes that by Section 240(b)(3) of the Immigration and Nationality Act, "If it is impracticable by reason of an alien's mental incompetency for the alien to be present at the proceeding, the Attorney General shall prescribe safeguards to protect the rights and privileges of the alien."  Hence, petitioner argues, the Attorney General must "(1) assess an individual's competency at the outset of proceedings, and (2) provide adequate safeguards to ensure that he or she is afforded a fair hearing."

 

39.              However, Section 240(b)(3) requires only that an alien be competent enough to be present at a hearing, not that he be competent enough to make a good showing of himself.  If the alien, through, e.g., belligerence and dramatic displays, casts doubt on his mental competency, then the Attorney General may take steps to assess alien's competency.  In the present case, such steps were properly taken, and a licensed professional mental health worker found what is, quite frankly, evident in the transcripts[12] of petitioner's hearings:  The petitioner is "skeptical" and answers most questions with a "No," but his "memory is intact," and he is "able to complete complex mental tasks."  The expert found petitioner to be "capable of/competent to participate in an INS hearing."

 

40.              By arguing that the Attorney General must "assess an individual's competency at the outset of proceedings"[13] and by arguing that the professional evaluation given to petitioner was inadequate, counsel for petitioner seems to be claiming that it is the job of the Attorney General to conduct an exhaustive mental evaluation and psychological work-up for the roughly 200,000 persons per year who are formally removed from the United States.[14]  Such a requirement, of course, would be as absurd as it would be impossible.  The INS, in the present case, acted appropriately, sufficiently, and reasonably.

 

41.              Petitioner cites Nelson v. INS 232 F.3d 258 (1st Cir. 2000) to recognize an "Immigration Judge's obligations to safeguard respondent's rights under 8 C.F.R. §240.4."[15]  However, Nelson is inapplicable to the present case in that the court held there that a representative could act for an incompetent, but it did not mandate counsel.  Furthermore, the petitioner in Nelson was denied her contention that her due process rights had been violated in consequence of having no representative.

 

42.              Interestingly, in Nelson, the petitioner, a Suriname national under deportation proceedings, made a mental incompetence due process claim.  In this narrow regard, Nelson certainly is applicable and similar to the present case. 

 

"Nelson suggests that the Immigration Judge's failure to account for her mental incompetence by requesting a custodian or other party to appear on her behalf was a violation of her right to due process. The INS has specifically provided for custodial or other representation of incompetent aliens in Regulation 240.4.  Nelson claims that her March 17, 1997 statement that her "memory ... is bad," that she "forget[s] things and ... get[s] pain," and thus that she was "not capable of defending [her]self" was a statement of mental incompetency; and as such, that the Immigration Judge was required to request a representative for her.  However, Regulation 240.4 is not applicable to this case, simply because Nelson's health-related complaints do not rise to the level of mental incompetence contemplated by Regulation 240.4."[16] Nelson 261, 262 citing Nee Hao Wong v. INS, 550 F.2d 521, 522 (9th Cir.1977).

 

43.              In Nelson, the court held that the confusion alien exhibited did "not rise to the level of mental incompetence contemplated by Regulation 240.4" and, thus, there was no violation of the alien's due process rights.  In the present case, petitioner's confusion seems very similar to that of the Nelson case.  If, in the case cited by petitioner to argue for greater safeguards than that provided under law by the INS, the alien's confusion didn't even rise to the level of ensuring a representative, how much less can petitioner rely on Nelson and his own confusion and belligerence to demand a Fifth Amendment right to public counsel? 

 

44.              Furthermore, Licensed Social Worker Julian Goulet, an outside expert and mental health professional with Sea Mar Community Health Centers of Seattle, examined petitioner in the present case.  Mr. Goulet found petitioner to be competent.  Petitioner exhibited what Mr. Goulet described in his chart entry "oriented x 3" competency.[17]  Surely, the holding in Nelson supports respondents' position that petitioner has no right to counsel on Fifth Amendment due process grounds.

 

45.              Petitioner further argues, "[d]espite more than fifteen hearings in this case, the government still has not afforded Mr. Gokce a fair competency hearing."[18]  Yet, elsewhere, petitioner argues, "Mr. Gokce cannot have a fundamentally fair hearing without the appointment of counsel."[19]  One can conclude from this that the only "fair" hearing in petitioner's eyes is one that results in a finding that would impose a requirement on the court to provide paid counsel.  Thus it is not surprising that petitioner seeks to belittle Mr. Goulet's finding that petitioner is competent.[20] 

 

46.              In another place, petitioner argues he "cannot have a fundamentally fair competency hearing without an attorney"[21] based on the Board of Immigration Appeals' ("BIA") note that petitioner's belligerence and dramatic displays "all seem to serve as important indicia of the respondent's mental status."  After dismissing out of hand Mr. Goulet's professional assessment that petitioner is competent, petitioner then uses the untrained and non-professional judgment of the BIA to assert petitioner is incompetent.  With this demonstration of incompetence, petitioner demands public counsel, again citing Vitek v. Jones.  (Once more, Vitek was a case in which personal liberty was at stake, and so is inapplicable to the present case.)

 

47.              Petitioner also argues that since the BIA was under the erroneous belief that petitioner had pro bono counsel, and that the "quandary" over petitioner's mental state was solved by such representation, the BIA therefore held that the petitioner's mental competency is so deficient that petitioner must be provided with public counsel.[22]  Petitioner's conclusion cannot reasonably be inferred from the BIA holding.  The fact that the BIA wrongly assumed petitioner had counsel does not support Petitioner's assertion that the BIA insisted on counsel for fairness. 

 

48.              Petitioner argues that the "immigration judge, who has not talked extensively with Mr. Gokce and is not trained to deal with persons suffering from mental disabilities, is not in the best position to uncover the relevant facts about his personal history."[23]  Yet, petitioner dismisses the testimony of a mental health professional who is trained to deal with persons suffering from mental disabilities.  Therefore, it is hard to understand the petitioner's argument that, due to the petitioner's mental incompetence, an immigration judge and a trained mental health professional are unable to uncover relevant facts, but that paid counsel would be able to.

 

49.              It is also interesting to note that while petitioner gives weight to neither the immigration judge's assessment, nor to Mr. Goulet's professional training to deal with persons suffering from mental disabilities, petitioner puts great store in the BIA's ability to determine mental competence—indeed, finding from the BIA's non-professional and untrained assessment of petitioner's mental competence an "impasse" and an outright Constitutional right.

 

50.              Petitioner argues that his detention is "indeterminate," that there "is no foreseeable end to his detention."[24]  From this, petitioner maintains that his Fifth Amendment due process rights are violated unless he is appointed counsel and cites Zadvydas v. Davis in support, a case in which an alien faced indeterminate post-order detention 533 U.S. 678 (2001).  Zadvydas is not applicable in the present case because, unlike an indeterminate detention in a post-order detention, petitioner in the present case does not face indeterminate detention, despite his claims to the contrary.  Rather, adjudication of this case would allow petitioner to regain his personal liberty in his home country.

 

 

Conclusion

51.              Petitioner should not be provided legal counsel paid for out of the public purse.  The Constitution provides the right to appointed counsel in a civil action under the Fifth Amendment only when there is a deprivation of liberty at stake; a deportation proceeding does not threaten in itself the loss of liberty.  Furthermore, Congress clearly did not intend foreign nationals who illegally and against the will of the American people enter and/or remain illegally in the United States to be able to resist remedy with counsel paid for out of public money.

 

52.              It is FILE's position that if petitioner is allowed to prevail in this case, the effects will mean a massive expansion of the illegal alien advocacy industry at taxpayer expense.  It will, furthermore, subvert the will of Congress by undermining clear legislative intent, and increase the potential for fraud and false claims in the asylum and removal process.

 

53.              This court should dismiss petitioner's Motion for Order Appointing Counsel.  By dismissal, this court will enable the case to come to a just conclusion for the petitioner, in compliance with all relevant law.  Moreover, dismissal will serve the public good by recognizing Congress' intention to limit the right to taxpayer-funded counsel in civil actions.

 

 

 

 

Date:

 

Respectfully submitted,

 

 

 

                                                                        _________________________

                                                                        Craig Nelsen, director

                                                                        Friends of Immigration Law Enforcement

                                                                        310 6th St S.E. 2nd Flr

                                                                        Washington, DC 20003

                                                                        202 543 2323

                                                                        Amicus Curiae

 

 

 

April 16, 2003

 

 

Office of the Clerk

Western District of Washington U.S.D.C

1010 Fifth Ave Suite 215

Seattle, WA 98104

 



[1] Petitioner's Exhibit F, March 24, 2003; Petitioner's reply to INS's motion to dismiss and memorandum in support of motion for order appointing counsel, p. 7.1-4, March 24, 2003