Federal Court Litigation

Government Deports Key Criminal Defense Witness

By: Danielle Huntley, Esq.  

On September 14, 2012 the Ninth Circuit decided a case called U.S. v. Leal-Del Carmen in which the government (the prosecution) deported a witness who could provide exculpatory evidence for criminal defendant Jonathan Leal-Del Carmen. Exculpatory evidence is evidence that tends to clear the defendant from alleged fault or guilt. It is a very big deal for the government to withhold or block access to this type of evidence.


The Ninth Circuit was less than impressed with the government’s actions. Chief Judge Kozinski, writing for the court, held that the government violated the defendant’s constitutional rights when it deported a witness who could have helped exonerate him.


Here’s what happened in the case.


On March 25, 2010 border patrol agents found 12 illegal immigrants hiding in the brush in Smith Canyon an unfenced area along the United States-Mexico border. They arrested the defendant and another man later that same day on suspicion of alien smuggling.  The border patrol agents questioned at least four of the illegal immigrants – three identified the defendant as a lead smuggler the fourth, Ana Maria Garcia-Garcia said three times that the defendant was not a leader. That’s your exculpatory evidence. The defendant could only be found guilty if the jury believed he was leading the group and her testimony would suggest the opposite. Border patrol recorded the four interviews on tape and then deported Garcia-Garcia and the eight other illegal immigrants they had picked up.


Chief Judge Kozinski in a lengthy footnote (sometimes the best part of a judicial opinion) calls into question the government’s story about what happened when Garcia-Garcia and the other illegal immigrants were interviewed. I am going to quote from it at length, because I think it’s interesting and Chief Judge Kozinski points out other potential shenanigans:


FN3 “It's not clear from the record whether border agents interviewed the eight other aliens in the group. At a motion hearing, [the defendant’s] attorney asked the government to produce any statements taken from those witnesses: “I can't tell whether there was actually a statement taken, even if it was unrecorded, for the other eight material witnesses.... I have no statements from these eight individuals at all.” The Assistant United States Attorney represented that he was not aware of any statements but would turn them over if they could be found. Defense counsel apparently never received any statements, because in his jury summation he argued, “And for the nine other witnesses we have no idea because nobody bothered to question them, or ask them or see what they knew.”

We find it suspicious that the government would interview some of the witnesses but not the others. It's also curious that the testimony of the single exculpatory witness happened to be included on the tape with the inculpatory witnesses. The government argued before the district court that a border agent made the video of Garcia–Garcia's interview because he believed her testimony wasn't exculpatory and wanted to show he wasn't “hiding anything.” But the agent couldn't have known what Garcia–Garcia would say before she said it. Either the agent made videos of all the witnesses but preserved only some, or he first interviewed them without a video recorder and then replicated some of the interviews on tape. Either alternative leaves us skeptical that the government did not question the eight other aliens it apprehended.

The Assistant United States Attorney disavowed that there were audio or video recordings of the eight others, saying he ”inquired about that specific point,” but he produced no sworn statement to that effect from any of the agents involved. Nor does the record disclose any evidence as to notes the agents may have taken in connection with the witness interviews. It's possible that the agents made such notes but did not produce them because they did not believe them to be exculpatory.


The defendant had not been arraigned and had no attorney when Garcia-Garcia was deported, meaning his attorney never had an opportunity to interview her. Defense counsel was forced to submit multiple discovery requests to force the government to turn over the video recordings of the interview – which the court took issue with.


You may be thinking, well they got to play the video of the testimony at trial so not that troubling – wrong, the district court denied use of the video at trial. The Ninth Circuit stated that the district court abused its discretion by blocking the video or any mention of the missing witness.


The Ninth Circuit further held that the video recording should be admissible because the government engaged in conduct (deportation) designed to prevent Garcia-Garcia from testifying. Furthermore, the district court should have given the jury a missing-witness instruction which would tell the jury that Garcia-Garcia existed; they should presume that she would testify unfavorably against the government, and that the government prevented her from testifying.


The court had no patience for the government’s argument that Garcia-Garcia was not in its control:


The government quibbles…that Garcia–Garcia is not “peculiarly” within its power, given that it has no knowledge of where she is in Mexico and therefore has no better chance of finding her than [the defendant] does. But it's the government's fault that no one knows where she is. The government removed Garcia–Garcia from the country and thus put her beyond the reach of the court and defense counsel. It also failed to obtain and keep her contact information, which would at least have made it possible to seek her voluntary return.

Because Garcia–Garcia is an alien lacking a lawful immigration status, the federal government had exclusive authority to parole her into the country to testify. For the government to say that it isn't responsible for her absence because it no longer knows where to find her comes close to the classic definition of chutzpah. (internal citations omitted)


It sounds like chutzpah to me.


Criminal prosecution is a powerful tool of the state and it is deeply troubling when it abuses that power through getting rid of unfavorable witnesses.

PROS & CONS: Suing in Federal Court for Immigration Denials and Delays

By: Lawrence P. Lataif  

Most people are aware from the news that federal lawsuits are often filed in connection with attempts by individual states to regulate immigration, and by individuals seeking to avoid deportation (now called removal) when found guilty of crimes, denied political asylum, or found to be removable based on other grounds.


Much less known is that federal lawsuits are available for immigration benefits which have been wrongfully denied or unreasonably delayed. Such suits, which represent only a small percentage of federal court lawsuits, can be filed by individuals or employers who are aggrieved or prejudiced by USCIS (United States Citizenship and Immigration Services) action (or inaction) in individual cases. While a federal lawsuit is not feasible or advisable in every situation, it can be very effective when a federal district court judge has become, literally, the court of last resort.


What actions can be brought to Federal Court?

Lawsuits for denied or delayed immigration benefits can include claims for:


  1. Declaratory Judgment
  2. Injunctive Relief
  3. Constitutional Violations – Due Process and Equal Protection
  4. Administrative Procedures Act Violations
  5. Mandamus Actions
  6. De Novo Review of Naturalization Denials
  7. Monetary Damages
  8. §1983 Civil Rights Actions


Practical Benefits of Filing Suit

Any litigant or lawyer who files a federal court lawsuit must be prepared for lengthy litigation, even though 98.5% of all lawsuits do not go to trial. However, there are practical benefits that accrue to virtually every litigant once a federal court lawsuit has been filed. Among these are:


  1. Case gets immediate review by U.S. Attorney’s Office
  2. Case gets reviewed by lawyers from OIL (Office of Immigration Litigation)
  3. Case gets high level administrative review by USCIS
  4. Where the issue is unreasonable administrative delay the case is often won without the government ever filing an answer


When Does Litigation Make Sense?


Federal court litigation can be appropriate in any one or more of the following situations:


  1. CIS policy violates statute or regulations
  2. CIS policy or regulations are unconstitutional
  3. Statutes conflict with each other
  4. USCIS ignores favorable evidence to justify denial


Yet, even in these cases, there are important considerations to address before taking the significant step of filing a federal court action. Exhaustion of administrative remedies must be done, unless there is a very compelling reason against it. The costs involved, including legal fees, third party costs and the substantial commitment of time, must be carefully evaluated. Thought must also be given to whether other relief is available to fix the problem, such as a different immigration filing strategy or Congressional action that may change the applicable law.


Helpful Research Resources


Examples of federal court litigation addressed above can be found at the following research resources:


  1. Immigration LexisNexis Community (formerly Bender’s Immigration Bulletin – Daily Edition) - www.lexisnexis.com/community/portal/
  2. Immigration Daily - www.ilw.com
  3. Interpreter Releases – Federal Case Summaries by Gerald Seipp
  4. WSJ Law Blog - blogs.wsj.com/law
  5. SCOTUSblog -  www.scotusblog.com


ANNOUNCING: Three-Part Seminar: "Federal Court Litigation Against USCIS and Other Federal Agencies."


Lataif, LLC has been invited to conduct a three-part seminar series on Federal Court Litigation in Immigration cases starting in the fall and continuing until February of next year. Hosted by the Boston Bar Association, each presentation will be accompanied by a Power Point presentation and the floor will be open throughout for questions and answers.




  • Why, How and When businesses and individuals can sue when immigration benefits are wrongfully denied or unreasonably delayed
  • What types of immigration decisions can prompt a federal lawsuit including erroneous petition denials, and illegal and improper CIS policies
  • What claims can/should be brought: Declaratory Judgment, Injunctive Relief, Mandamus, APA violations, Constitutional violations: Due Process, Equal Protection, De Novo review
  • Drafting considerations – including venue, exhaustion issues, complaint drafting issues and practice pointers
  • Anticipating the defenses – ie: CIS has unlimited and unreviewable discretion, and federal courts have no jurisdiction.


Save the Dates!

Attendance is FREE for Boston Bar Association members and non-members. Seminars from 3:00-5:00PM at the Boston Bar Association at 16 Beacon Street, Boston, MA. Dates as follows:


SEMINAR PART ONE: “Suing in Federal Court for Immigration Denials and Delays: When Your Client Has No Choice but to Sue the Bureaucrats." Tuesday, October 18, 2011


SEMINAR PART TWO: “Pretrial Discovery.” Tuesday, November 15, 2011 (**POSTPONED EVENT -  NEW DATE TBA**)


SEMINAR PART THREE: “Mock Litigation.” Tuesday, February 21, 2012


The program will be included in a WestEd Legal Center live, online broadcast. Please visit here to register for the online broadcast. Online listening fee of $55 applies.


The event will be moderated by Ellen Kief of Law Office of Ellen S. Kief and handouts with exhibits and citations will be provided.




Lawrence P. Lataif, J.D., LLM – Larry has been practicing federal immigration law exclusively since he joined Jones Day in 1986 to organize and head its firm-wide immigration practice. Larry also headed the firm-wide immigration practice of McDermott, Will & Emery and has headed his own boutique immigration firm for over 15 years. Larry conceived of the Religious Worker law and headed the legal team that brought about its passage in 1990. Most recently, Larry’s extensive publications have continued in the Palm Beach Post and Miami Daily Business Review. In 2004, Larry was honored for his legal accomplishments as a recipient of the Ellis Island Medal of Honor. Larry has extensive federal court litigation experience, including federal immigration lawsuits against USCIS, the Department of Homeland Security (DHS), and the Department of Justice (DOJ) requesting declaratory judgments, APA review, mandamus, Constitutional and injunctive relief.


Danielle E. Huntley, JD – Danielle works with Larry on a broad range of immigration matters, including federal litigation. Danielle graduated cum laude from Boston College as a Scholar of the College in Philosophy. At Boston College Law School she was a quarter-finalist in the Grimes Moot Court Competition where she was recognized as a top ten oralist and brief writer. She was a member of the National Religious Freedom Moot Court Team and Co-Chaired the Grimes Moot Court competition the following year. In her third year, Danielle was chosen to spend an intensive full-year working in the Administrative Law Division of the Massachusetts Attorney General’s Office.