Wednesday, November 10, 2010

UNLV Law Clinic Wins Right to A-file in Removal Proceedings by Anne Traum

In Dent v. Holder, CA 09-71987 (9th Cir. Nov. 9, 2010), the Ninth Circuit ordered the Government to provide persons in removal proceedings a copy of the A-file. The case was briefed and argued by students in the Thomas & Mack Legal Clinic at UNLV, under the supervision of Associate Professor Anne Traum.

The issue arose in a long overdue appeal from a 2003 removal proceeding, in defense to which Dent claimed U.S. citizenship, a claim he was unable to substantiate without his A-file. A native of Honduras, Dent was adopted at age fourteen by a United States citizen in 1981. At the IJ’s request, he furnished proof of his adoption and his adoptive mother’s citizenship. He also asked the BIA for help in obtaining documents relevant to his citizenship claim, but got no response. The IJ and BIA rejected Dent’s citizenship defense and Dent was removed to Honduras. In 2008, while Dent was under indictment for illegal reentry, USCIS denied a naturalization petition filed on Dent’s behalf by his mother in 1982. Neither that petition nor another filed by Dent in 1986 had been provided to him, or disclosed to the IJ or the BIA, in the 2003 removal proceedings, despite the fact they were still pending at that time and were part of his A-file.

Citing the “mandatory access law” in 8 USC 1229a(c)(2)(B), the court held that Dent was entitled to his A-file in removal proceedings. The court rejected the Government’s argument that the A-file could only be obtained by FOIA request, noting that such a rule in removal proceedings would pose serious due process concerns. “The only practical way to give an alien access is to furnish him with a copy,” the court said. Though Dent asked for help in getting records, the court made clear that was not a “necessary precondition,” adding: “We are unable to imagine a good reason for not producing the A-file routinely without a request, but another case may address that issue when facts call for it.” For now, the court’s ruling appears to be broad, with production of the A-file as the default rule.

The court transferred the case to the district court in Arizona to resolve Dent’s citizenship claim.

Anne Traum Associate Professor of Law University of Nevada Las Vegas William S. Boyd School of Law Thomas & Mack Legal Clinic

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