No Immunity For ICE Attorney Who Submitted A Forged Document In A Deportation Hearing

from the christ-what-an-asshole dept

The Ninth Circuit Court of Appeals has refused to extend qualified immunity to a former ICE attorney who forged a document submitted into evidence in a deportation hearing. (h/t Mark Stern) While still with ICE, Jonathan M. Love produced a document claiming Ignacio Lanuza had agreed to voluntary departure to Mexico, thus undermining the ten years of residency needed to avail himself of a removal order cancellation. Here's what was submitted and its effect, from the appeals court decision [PDF]:

On May 11, 2009 at Lanuza’s actual immigration hearing, Love submitted an I-826 form agreeing to voluntary departure, purportedly signed by Lanuza on January 13, 2000, making Lanuza ineligible for cancellation of removal. See id. Based solely on that I-826 form, the immigration judge issued an order of removal on January 5, 2010; the Board of Immigration Appeals (“BIA”) affirmed on November 15, 2011.

Lanuza hired a new lawyer who examined the document and found something highly suspect about it. Most glaringly, it was supposedly signed in 2000 by someone from the DHS. Here's the problem:

From the court:

[The document] referred to the “U.S. Department of Homeland Security” at the top of the page, an agency that did not exist at the time Lanuza purportedly signed the form on January 13, 2000. Congress created DHS in response to the September 11, 2001 terrorist attacks, and the agency did not begin formal operations until 2003. Therefore, it would have been impossible for Lanuza to sign the DHS I-826 form in January 2000, because that form did not then exist.

Notably, the government did nothing to the ICE attorney until after he was sued by Lanuza. Only then did it find he had violated Lanuza's rights by forging the document. For derailing a model immigrant's life and forcing him into a decade of litigation, Love received a 30-day sentence and a 10-year ban on practicing law.

Now, it's Lanuza's turn to obtain compensation for Love's fraudulent actions. The ICE attorney tried to protect himself from being sued directly by laughably claiming his document forgery naturally flowed from ICE policies and directives. This was Love's attempt to dodge Lanuza's Bivens claim. The court makes short work of his argument.

Love argues that all actions taken by immigration officials in the course of their duties—even criminal acts— are necessarily intertwined with the execution of immigration policy. We decline to entertain such a broad reading of immigration law, as the illogical nature of such a reading is demonstrated by the absurdity of its results. If, for example, an immigration official physically forced himself on an asylum-seeker and offered to help her obtain relief if she kept quiet, we would have no trouble concluding that such criminal conduct bears no relationship to the legitimate execution of immigration policy. Likewise, we will not allow an officer of the immigration court to cloak himself in the government’s protection when he commits the crimes of forgery and perjury.

Love also argued that allowing this claim to continue would result in the court being swamped by similar complaints from aggrieved plaintiffs. The government feels this would be an unacceptable burden on ICE and the courts. The court, again, finds this argument ridiculous. If the court were to take the government's assertions seriously, it would suggest there's something horribly wrong with ICE, not the extension of a Bivens remedy in a non-criminal case.

[W]e do not foresee a “deluge” of potential claimants seeking to avail themselves of this particular Bivens action. [...] Recognizing a Bivens action here will produce widespread litigation only if ICE attorneys routinely submit false evidence, which no party argues is the case. And if this problem is indeed widespread, it demonstrates a dire need for deterrence, validating Bivens’s purpose.

With the Bivens claim established in a new context (immigration hearings rather than just criminal trials), the ICE attorney's qualified immunity assertion is quickly dispensed with.

There can be no doubt that Love—who intentionally, and illegally, submitted falsified evidence in an immigration hearing—is not protected by qualified immunity, as the district court properly held. [...] For these reasons, we hold that a Bivens remedy is available here, where a government immigration attorney intentionally submitted a forged document in an immigration proceeding to completely bar an individual from pursuing relief to which he was entitled. Failing to provide a narrow remedy for such an egregious constitutional violation would tempt others to do the same and would run afoul of our mandate to enforce the Constitution.

Love will be held personally responsible for violating the rights of an immigrant seeking naturalization. The record shows Lanuza was exactly the kind of person we want to welcome to the US -- a person who was useful, productive, and by all accounts a model citizen. The only thing he was missing was the citizenship. And an ICE lawyer tried to take it all away and separate Lanuza from his family by submitting a forged document into evidence. The brazen dishonesty is shocking. The capricious cruelty of this move -- completely unwarranted by Lanuza's behavior during his decade in the US -- is what really sticks in your throat.

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Filed Under: 9th circuit, deportation, dhs, forgeries, ice, ignacio lanuza, jonathan love, qualified immunity