Federal District Court Asserts Its Authority to Protect Immigrants

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Congress has tried to severely limit immigrants’ ability to seek protection in federal district court. On July 15, immigration attorney Scott McVarish successfully stopped the deportation and ongoing detention of his client by successfully appealing to the Federal District Court.

“This decision provides immigrants and their advocates with renewed faith that the federal district courts will still welcome their cases when those immigrants have no other place to go,” said Scott McVarish, immigration attorney.

In recent years both Congress and the Department of Homeland Security have attempted to limit the ability of federal district courts to exercise the writ of habeas corpus in favor of immigrants. Both the Congressionally-enacted REAL ID Act in 2005 and cases such as the recent Singh v. Napolitano have been used to prevent immigrants from exercising rights guaranteed to them by the Suspension Clause of the United States Constitution.

In a landmark decision on Friday, July 15, 2011, Federal District Court Judge Cormac J. Carney of the Central District in California in Santa Ana, reasserted the role of federal district courts as “courts of equity” in upholding fundamental rights of immigrants. In the decision in Machado v. Holder [No. SACV 11-0960-CJC (RNBx)], Judge Carney asserted his court’s jurisdiction over a violation of the petitioner’s fifth amendment due process rights. Judge Carney’s decision focused on the petitioner’s previous attorney’s failure to file a petition for review of her case with the Ninth Circuit Court of Appeals. He explained that the district courts-- unlike the Ninth Circuit or the Board of Immigration Appeals (BIA)-- have equitable powers that allowed them to step in to “upsetting” cases and make findings and create a record, a power that other courts do not have.

“This decision provides immigrants and their advocates with renewed faith that the federal district courts will still welcome their cases when those immigrants have no other place to go,” said Scott Daniel McVarish, Mrs. Machado’s current immigration attorney. “A court of equity-- such as our federal district courts-- has powers that no other courts have: to step into cases where the jurisdiction and procedure are unclear but the injustice is easy to see,” said McVarish.

To read the transcripts of the hearing, please see: http://goo.gl/6WAFe

In Machado v. Holder, Mrs. Machado, a legal permanent resident, was a warm and loving foster mother who had just been nominated as Foster Mother of the Year. A baby under her care received a burn during a bath due to an accident caused by a faulty water faucet. Unfortunately, the time was 2001 and the County of Los Angeles was in turmoil from a record seven deaths of foster care children under their protection {Ref. http://goo.gl/52bzL p. 8-31}. Even though the treating doctor, social care worker in charge of the baby, Child Protective Services and the investigating police officer all deemed the incident an accident, the District Attorney pressed for felony child abuse charges. Due to her two incompetent attorneys-- who collectively were disciplined by the state bar five times-- Mrs. Machado was convinced to plead “no contest.”

Despite assurances from her attorneys to the contrary, Mrs. Machado received nine months in jail and found herself in deportation proceedings in immigration court. After losing in immigration court, the attorney then failed to properly appeal the case to the BIA and failed to even file a petition with the Ninth Circuit courts. It was that last failure by the previous attorney that prompted Judge Carney to accept this case in his court over the objections of the government attorneys.

Recognizing that the petitioner’s rights had been violated by her previous attorney, Judge Carney held that the petitioner had been denied: (1) her right to speak in her criminal court case, (2) appeal the immigration court’s decision, and (3) file a motion to reopen or file a petition with the Ninth Circuit Court of Appeals. Judge Carney found that the petitioner succeeded on her third ground and that she had a high likelihood that she said she would succeed on her remaining two claims. He did not rule on those first two claims, instead he decided to retain jurisdiction over the case and wait until separate pending actions in both state Superior Court and the BIA were decided.

During the proceedings, Judge Carney then ordered Petitioner-- who had been detained by the Immigration and Customs Enforcement (ICE) agency for nine weeks-- to be released immediately during the proceeding. In a dramatic moment for the Petitioner’s family, the Judge informed the ICE agent that she was being detained un–Constitutionally so he would not need to transport her back to the jail.

In another moment that reminded the court audience of the power of federal district courts, Judge Carney informed the government’s lawyer that he would be displeased if the Petitioner were detained again by ICE.

McVarish filed a “Suggestion” to the Superior Court Judge James Brandlin in Torrance, California, on July 11 to dismiss the 2001 conviction against Mrs. Machado. Immigration Lawyer McVarish thoroughly documented the fact that she was innocent and had ineffective assistance of counsel during the criminal court proceedings. That case is now pending in Judge Brandlin’s courtroom.

For further information or for interviews, contact Counsel for the Petitioner, Scott Daniel McVarish, Esq. with the private law office “Immigration Law Office of Los Angeles” at (800) 792-9889 or scott(at)immigrationhelpla(dot)com or http://www.immigrationhelpla.com

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