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September 1, 1999


The opinion of the court was delivered by: Henderson, District Judge.



Mr. Garcia-Guzman is a sixty-four year old citizen and national of Mexico who moved to the United States as a lawful permanent resident in 1967. On July 12, 1995, petitioner was convicted of assault with a deadly weapon in violation of California Penal Code § 245(a)(1). On March 20, 1997, he was convicted and sentenced to two years, eight months, for driving under the influence of alcohol in violation of California Vehicle Code § 23152(a) and inflicting corporal injury on a spouse or cohabitant in violation of California Penal Code § 273.5(a). While serving out his prison sentences petitioner had surgery for throat cancer. His larynx was removed and he has since been unable to speak. Petitioner also suffers from arthritis, kidney problems and requires medication.

Presumably in anticipation of removal proceedings, petitioner retained current counsel, Mr. Lamar Peckham, who filed a Form G-28 notice of entry of appearance of counsel with the Immigration and Naturalization Service ("INS") in San Francisco on December 9, 1997. In a letter submitted with the Form G-28, counsel noted petitioner's health problems and specifically requested that he not be transported outside of northern California for removal proceedings. Counsel also emphasized that, because of petitioner's throat surgery, "it is impossible to maintain attorney-client communication over the telephone." Certified Administrative Record ("AR") 149. On January 23, 1998, the INS "issued" but failed to serve a Notice to Appear, stating that petitioner was removable pursuant to sections 237(a)(2)(A)(ii) & (iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1227 (a)(2)(A)(ii) & (iii) (covering crimes involving moral turpitude and aggravated felonies). AR 164-66. On June 10, 1998, petitioner was taken into the custody of the INS from Centenella State Prison and two days later, the INS finally served him with the Notice to Appear. However, the Notice to Appear did not indicate the time and place for petitioner to appear for removal proceedings and it was not forwarded to petitioner's counsel.

It took counsel until June 17, 1998, to determine that petitioner was being detained by the INS in El Centro, California, and that the Notice to Appear had still not been filed with the Immigration Court because no judges were available. The following day, counsel filed a motion for change of venue with the Immigration Court in El Centro, along with another Form G-28, but the motion was returned on June 30, 1998, because no Notice to Appear had been filed with the court. Inexplicably, and without notice to counsel, the INS then moved petitioner to Seattle, Washington. On July 13, 1998, the INS informed the Seattle Immigration Court that petitioner was in custody there, AR 167, and on July 15, 1998, the INS filed the Notice to Appear.

Counsel for petitioner was not informed of petitioner's whereabouts until July 20, 1998, the very day his removal proceedings were set to begin in Seattle. After attempting to initiate proceedings and discovering that petitioner was mute, the Immigration Judge ("IJ") queried whether petitioner had counsel. Petitioner responded by nodding and indicated that he would like to have Mr. Peckham contacted. AR 48. Once raised on the telephone, Mr. Peckham immediately remarked that he was "astonished" to learn that petitioner had been moved to Seattle and stated that he would file a motion for change of venue. AR 49. In response, the IJ advised counsel that it was her practice to deny motions for change of venue for detained aliens unless the INS agreed:

  Judge:       But I just want to let you know Mr.
               Peckham, that I don't normally grant
               motions for a change of venue unless the
               Service — with two exceptions. One
               is that the client admits and conceded to
               his removal and tells the Court what
               relief he's going to apply, and secondly
               would be if the Service would be. Because
               he is in detention being held by the
               INS, I cannot tell the INS to transfer to
               another district. Just so you understand
               what the process is of this Court.
  Mr. Peckham: Yes, but that's not even the district he
               was — I mean, I can't understand why
               he is in Seattle at all.
  Judge:       I don't know what they do, Mr. Peckham,
               but I do know that we have been receiving
               a lot of California prisoners, and
               they've just been transferring any which
               way they can get them. I know of cases in
               Anchorage, Alaska, that the people have
               been transferred from Anchorage to
               Arizona, and their case is still in
               Anchorage. So I cannot help you there.

Mr. Peckham: Right.

  Judge:       But he is here, and as I told you
               earlier, there are only two circumstances
               under which I do grant changes of venue.
               Just so that it's clear, do you want me
               to continue this case for two days or a

Mr. Peckham: A week, please.

Judge:       Okay . . . .

AR at 50. The IJ then granted a continuance until August 3, 1998, and asked counsel to enter an appearance by filing another G-28.

On July 22, 1998, petitioner's counsel filed for a change of venue, citing the impossibility of conferring with his client by telephone or paying for travel to Seattle to appear in person, the due process protections regarding petitioner's right to counsel, the fact that the INS had repeatedly transferred petitioner without notice to counsel, and the inherent inadequacy of appearing by telephone since petitioner would be unable to communicate with him. AR 142-47. The IJ summarily denied the motion on the following day, stating only that "Respondent is in INS custody. If INS in San Francisco and Seattle agree to transfer Respondent to San Francisco, the Motion may be granted. Otherwise, this Court cannot force the INS to move a detained individual. Counsel may appear by telephone." AR 141. The INS had no opportunity to respond to the motion.

Counsel for petitioner immediately moved the IJ to reconsider, citing authority for the proposition that even if the place of detention is beyond the authority of an IJ to change, the place where hearings are held can be determined by an IJ. AR 72-73. The INS filed an opposition, arguing that "the privilege of appearing telephonically for master calendar hearings" is sufficient for petitioner's attorney and witnesses and that "[i]f respondent is found removable as charged there is little likelihood of any available relief and the need for an individual hearing." AR 131. Tracking the INS's opposition, the IJ denied the motion to reconsider on the grounds that petitioner failed to provide "evidence that INS in San Francisco had space to keep the respondent. Furthermore, there is no evidence that INS in Seattle, Washington is willing to transfer respondent." AR 129-30. Finally, the IJ noted that "if the Court were to grant a change of venue, the Court is indirectly ordering the INS to transfer respondent to San Francisco." Id. Thus the IJ concluded that Petitioner's right to counsel was not interfered with because Mr. Peckham could appear telephonically, or travel to Seattle since "[i]t is a well-known fact that many attorneys travel from State to State to represent their clients." Id. Petitioner filed an interlocutory appeal with the BIA, but the court refused to entertain the appeal since "questions of venue are within the jurisdiction of the Immigration Judge." AR 69.

At the August 3, 1998 hearing Mr. Peckham again appeared by telephone and indicated that he was not ready to proceed because he had still not received a copy of the Notice to Appear. AR 54. The judge promised to send a copy of the Notice to Appear along with an "evidence packet" and granted another continuance of the removal hearing to August 13, 1998, informing counsel that she expected him "to be ready to proceed on that date." AR 55. On the 13th the IJ attempted to proceed, however, the difficulties created by petitioner's inability to speak combined with Mr. Peckham's inability to appear personally and inadequate time to prepare or consult with his client derailed the hearing. Petitioner attempted to submit a written statement in Spanish which the Judge refused to have translated. AR 57-58. Mr. Peckham then stated that he had only received the NTA five days before the hearing, that he had received written communication from his client which he was trying to respond to, and that all of their efforts to communicate with each other were slowed by petitioner's inability to speak. The IJ then granted a third continuance to August 19, 1998, noting that it would be the last. AR 59.

The hearing went forward on the 19th with petitioner again nodding or shaking his head to respond to questions. AR 63. Mr. Peckham admitted that he had received the NTA, sent petitioner a copy, and explained it to him. The IJ then held that petitioner was removable, finding that the INS had proved all the requisite allegations. The IJ gave counsel through September 10, 1998, to file a brief outlining any possible grounds for relief from deportation. No brief was filed on petitioner's behalf, so on the 10th of September the IJ ruled on the merits that petitioner's felony convictions were particularly serious crimes which rendered him ineligible for relief from deportation. AR 34. Petitioner appealed to the BIA. Just before the BIA dismissed his appeal on May 26, 1999, petitioner was released on his own recognizance due to his deteriorating health.

Petitioner filed the instant action on June 9, 1999, fearing imminent removal to Mexico. However, the INS agreed not to remove petitioner immediately after the BIA's ruling and the parties stipulated to move the hearing date into August. Until the Court issued its notice of intended ruling, petitioner was under orders from the INS to report for removal on the morning of August 16, 1999.


A. Standing

The government contends that petitioner lacks standing because, even assuming his statutory and due process rights were violated, he does not contest the factual predicate for his order of removal or his ineligibility for relief from deportation. Thus, his alleged injuries — a procedurally defective removal proceeding and violation of his right to counsel — are not redressable. As the government argues: "On the evidence before the Court, there could be no different result than that already rendered by the immigration judge and the Board. . . . The prospect that petitioner would obtain relief from the injury of deportation as a result of a favorable ruling by [this] Court is too speculative to warrant the exercise of judicial review." Resp. Opp. Mem. at 4-5.

As the government notes, the Supreme Court has held that redressibility is an essential element of standing. See Northeastern Florida Chapter of the Associated General Contractors v. Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993) ("It has been established by a long line of cases that a party seeking to invoke a federal court's jurisdiction must demonstrate . . . a likelihood that the injury will be redressed by a favorable decision, by which we mean that the `prospect of obtaining relief from the injury as a result of a favorable ruling' is not `too speculative.'") (quoting Allen v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984)). Here the BIA affirmed the immigration judge's finding of removability after noting that petitioner did not offer evidence to challenge the ...

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