In
the United States District Court
for the Western District at Seattle
_______________________________________
IRFAN GOKCE
Petitioner/Plaintiff v. WILLIAM
JOHNSTON, District Director, Immigration and Naturalization Service; MICHAEL
GARCIA, Acting Commissioner, Immigration and Naturalization Service; KEVIN D.
ROONEY, Director, Executive Office for Immigration Review; JOHN ASHCROFT,
Attorney General Respondents/Defendants |
) ) ) ) ) ) ) ) ) ) ) ) |
No. C02-2568R Brief of Amici in
Support of the INS's Motion to dismiss and Memorandum Opposing Motion for
Order Appointing Counsel |
_______________________________________)
The Case
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Statement
of Amicus Curiae |
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Motion
for Leave To File |
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Table
of Authorities |
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Argument |
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Conclusion |
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1. Mr. Irfan Gokce ("petitioner"), a Turkish national illegally present in the United States, and a repeat offender, was arrested by immigration authorities ("respondents") on September 29, 2000 and removal proceedings were initiated against him by the United States.
2.
Even though
the law specifically precludes foreign nationals from accessing taxpayer funded
legal counsel in deportation proceedings, petitioner is now demanding such
counsel.
3.
Petitioner
claims that his "mental disability," evinced by dramatic displays and
belligerent behavior in the courtroom, prevent him from receiving a fair
hearing unless taxpayers provide him with free counsel.
4.
Counsel for
petitioner claims petitioner has been unable to retain counsel[1]. Nevertheless, counsel for petitioner on this
case has spent a great deal of effort and time. With all due respect, it appears counsel, which includes the American
Immigration Law Foundation, an organization with a vested interest in
drastically expanding the scope of public funding for immigration proceedings,
is trying to use this case as a way to broaden the means by which advocates for
illegal aliens may continue to advocate for illegal immigration, but to be paid
for it at taxpayer expense.
5.
It will be
argued below that the motion to dismiss should be granted. It will be shown that neither the
Constitution nor the Immigration and Nationality Act require court-appointed or
taxpayer-funded legal representation for petitioner. It will be further shown that petitioner's arguments for the
granting of such a radical new right are without merit.
6. Amici, Friends of Immigration Law Enforcement (FILE), is a non-profit organization of attorneys, law enforcement officers, state and federal legislators and staff, and immigration experts concerned about the widespread disregard for immigration law in the United States. FILE is interested primarily in helping Americans who have been personally harmed by lack of immigration law enforcement, though it also authors legislation on the state and federal level, provides legislative analysis, and files notices, briefs and other legal documents.
7. FILE has an interest in this case because a ruling in favor of petitioner would drastically expand the ability of those whose interest it is to thwart the will of Congress on matters of immigration policy and law to do so. Furthermore, a ruling in favor of petitioner would significantly increase the likelihood of abuse in the asylum process—a process already susceptible to fraud.[2] Such fraud makes a mockery of the generosity of the American people, threatens the national security, and jeopardizes the ability of the truly deserving to gain sanctuary from real persecution.
8. The public interest will be well-served by including in the deliberations over this difficult case a voice representing the 70% of Americans who say that controlling and reducing illegal immigration should be a very important goal of U.S. foreign policy.[3]
9.
FILE is incorporated as a non-profit public interest
corporation headquartered at 310 6th St S.E., Washington, DC 20003.
10.
Counsel
for respondents, Mr. Chris Pickrell, AUSA, (206) 553-4088, has granted consent for this filing. A voice message to counsel for petitioner, Mr. Robert Pauw, (206)
682-1080, asking for consent to file was left for counsel at 8:45 a.m. PST on April
16, 2003, but was unreturned.
11.
Amici
beg leave of this court to file this brief as provided for under Rule 29 of the
Federal Rules of Appellate Procedure. [Rule
32(a)(7): less than 4500 words]
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Cases |
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Aguilera-Enriquez
v. INS 516 F.2d 565 |
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7,
10 |
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Castro-O'Ryan
v. INS 847 F.2d 1307 |
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6 |
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Escobar-Ruiz
v. INS 787 F.2d 1294 |
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7 |
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Gagnon
v. Scarpelli 411 U.S. 778 |
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10 |
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In
Re Gault 387 U.S. 1 |
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10 |
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Lassister
v Dept of Social Servs. 452 U.S. 18 |
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9 |
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Nelson
v. INS 232 F.3d 258 |
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12 |
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Reno
v. Flores 507 U.S. 292 |
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5 |
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Rios-Berrios
v. INS 776 F.3d 859, 862 |
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6 |
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Vitek
v. Jones 445 U.S. 480 |
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9,
14 |
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Zadvydas
v. Davis 533 U.S. 678 |
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15 |
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Statutes
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8
U.S.C. §1229a(b)(4)(A) |
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5 |
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Administrative
Codes
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8
C.F.R. § 240.4 |
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13 |
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Other
Authorities
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U.S.
Department of Justice, OIG |
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2 |
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Worldviews
2002 |
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3 |
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2001
Statistical Yearbook of the INS |
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12 |
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Saunders'
Encyclopedia and Dictionary of Medicine, Nursing and Allied Health |
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13 |
Petitioner's main
argument, proceedings "unfair," not applicable to present case
12.
Petitioner argues that "he cannot have a fundamentally
fair hearing under the Fifth Amendment and he cannot exercise his statutory
rights, including the right to present evidence in his behalf, unless counsel
is appointed to represent him."[4] Petitioner argues that such "fairness"
includes the ability to present corroborating evidence in support of asylum
claims, the ability to decide competently which evidence to present, and the
ability to gather such evidence.[5]
13.
Petitioner argues that the ability of a detained deportee
to accomplish the above is augmented by having access to professional
counsel. This is undoubtedly true. However, this argument is irrelevant to the
present case.
14.
In any legal proceeding, all parties may be able to present
a better case if they have access to professional counsel. However, there is no right to such
counsel at taxpayer expense in every kind of civil legal proceeding. In particular, Congress has specifically
declared that deportees do not have such right.[6]
Fifth Amendment right to
counsel not applicable in present case
15.
Petitioner, while agreeing that he has no Sixth Amendment
right to counsel, nevertheless maintains that he has a right to publicly funded
counsel under the Fifth Amendment.
Petitioner has no such right.
16.
While petitioner correctly notes that aliens have the right
to due process in deportation proceedings, the two cases petitioner cites to
establish this right are curiously chosen, since both cases argue against
petitioner.
17.
The first, a case having to do with the detention and
custody of alien juveniles, actually found that "each unaccompanied
juvenile [does not] have a substantive right to an individualized hearing on
whether private placement would be in his "best interests." Reno
v. Flores 507 U.S. 292 (1993). In
the decision, noting, "Congress has granted the Attorney General broad
discretion regarding detention," the court actually restricted the due
process privileges of the aliens in detention. The court noted that "[a]ny remaining constitutional doubts
are eliminated by the fact that almost all respondents are aliens suspected of
being deportable" Id. (citing 8 U.S.C. § 1252(a)(1)). The court also found that the INS detention
policy "rationally pursues a purpose that is lawful for the INS to
seek" Id.
18.
In the present case, 1) the INS is rationally pursuing a
purpose that is lawful for the INS to seek, 2) petitioner, as a member of a
class of deportable aliens, has substantially reduced due process privileges,
and 3) since Congress has granted the Attorney General broad discretion
regarding the detention and removal of deportable aliens, the procedural
regulations established by the Attorney General, and followed in the present
case, including assessment of mental competence, are more than adequate to safeguard
petitioner's rights under 8 C.F.R. §240.4.
19.
The second case petitioner cites would seem to undermine
his argument even more. While it is
true that the decision found that an "alien is entitled to due process
under the Fifth Amendment in his deportation hearing," Rios-Berrios v.
INS, 776 F.3d 859, 862 citing United States v. Barraza-Leon, 575
F.2d 218, 220 (9th Cir.1978), the ruling specifically held that "due
process mandates that he is entitled to counsel of his own choice at his
own expense under terms of the Immigration and Nationality Act." Id.
[emphasis added]. The decision further
noted that "Section 242(b) of the Act, 8 U.S.C. § 1252(b), directs the
Attorney General to adopt regulations to assure the integrity of the
deportation process (e.g. reasonable notice of
charges, reasonable opportunity to present and examine
evidence, sufficiency of evidence to support deportability, etc.). Id. [emphasis
added].
20.
In the present case, 1) petitioner has enjoyed all
privileges of due process afforded to persons in his circumstances, and 2) the INS
has acted within its regulations and has made all reasonable efforts to assure
the integrity of the proceedings.
21.
Petitioner argues "[t]he legislative history of
Section 292 of the INA confirms that in enacting this provision Congress
intended to confer a right."[7] In support, petitioner cites Castro-O’Ryan
v. INS 847 F.2d 1307. However, in Castro,
the court specifically found that the right to counsel in deportation hearings
is not a constitutional right, but rather a humanitarian right granted
by Congress "at no expense to the Government."
22.
In the present case, petitioner cannot use Castro to
argue that he has a constitutional right to free counsel; rather, Castro
would more easily support the government's position that petitioner has no
Fifth Amendment right to counsel.
23.
Petitioner asks the court to adopt a "case-by-case
approach" to the question of whether "fundamental fairness requires
the appointment of counsel" in the present case.[8] Petitioner cites two cases in support of
this approach, and, again, both cases seem to argue against, rather than for,
the petitioner's Motion for Order Appointing Counsel.
24.
In the first case, the petitioner’s claim that appointed
counsel may be required in some cases is not supported by the text. Indeed, the petitioner in that case was
denied his petition because
"The lack of counsel before the Immigration Judge did not prevent
full administrative consideration of his argument. Counsel could have obtained
no different administrative result. 'Fundamental fairness,' therefore, was not
abridged during the administrative proceedings, and the order of deportation is
not subject to constitutional attack for a lack of due process." Aguilera-Enriquez
v. INS 516 F.2d 565, 569.
25.
Petitioner appears to be arguing that, because there is a
hypothetical case imaginable in which the lack of counsel before an Immigration
Judge could prevent full administrative consideration of a petitioner's
argument, the ruling in Aguilera holds that, despite the clear intent of
Congress, any alien under deportation proceedings has a latent right to counsel
on a case-by-case basis. This clearly
is not the plain meaning of the holding in that case.
26.
In the second case, petitioner cites a Ninth Circuit case
in which an illegal alien's "application for attorney's fees is denied at
this time, because he is not a 'prevailing party.'" Escobar-Ruiz v. INS,
787 F.2d 1294 (1986). Petitioner quotes
from the ruling
"We note that Congress' treatment of indigent aliens in § 292 may
not be constitutional as applied in individual cases. The fifth amendment
guarantee of due process applies to immigration proceedings, and in specific
proceedings, due process could be held to require that an indigent
alien be provided with counsel despite the prohibition of section 292." Id.
[emphasis added]
27.
However, the court does not specify under which
immigration proceedings the Fifth Amendment would require an indigent alien be
provided with counsel. Since it is well
established that there is no Fifth Amendment right to counsel in civil actions except
when liberty is at stake, it is possible, even likely, that the Ninth
Circuit's "specific proceedings" language refers only to those
actions that might result in the deprivation of a person's liberty, in which
case there is a blanket right. It is
certainly quite a stretch to take the language of the passage above to mean, as
petitioner argues, that the Ninth Circuit "indicated that it will use a
case-by-case approach in determining whether appointed counsel is necessary as
a matter of fundamental fairness."[9]
28.
It is, in fact, over the entire matter of deprivation of
liberty that petitioner's argument that the Fifth Amendment gives him the right
to counsel is most flawed. Several of
the cases petitioner cites to argue his right to counsel under the Fifth Amendment
are wrongly cited in the present case, since they all have to do with personal
liberty. In the present case, petitioner
is not threatened with loss of liberty if he loses either his Motion for Order
Appointing Counsel, or his asylum application.
(Ironically, denial of petitioner's Motion for Order Appointing Counsel
may actually speed petitioner to liberty.)
Thus, petitioner may receive a fair hearing without a Fifth Amendment
right to free counsel.
29.
Indeed, one of the citations petitioner uses to argue
petitioner's Fifth Amendment right to counsel, actually makes the opposite
case, and makes it explicitly:
"With regard to what the "fundamental fairness"
requirement of the Due Process Clause means concerning the right to appointed
counsel, there is a presumption that an indigent litigant has a right to
appointed counsel only when, if he loses, he may be deprived of
his physical liberty. The other elements of the due process decision—the
private interest at stake [e.g., petitioner's claims of possible persecution in
his home country], the government's interest [e.g., not over-burdening
administrative proceedings], and the risk that the procedures used will lead to
erroneous decisions—must be balanced against each other and then weighed
against the presumption." Lassister v Dept of Social Servs. 452
U.S. 18, 101 S. Ct. 2135 citing *19 Mathews v. Eldridge, 424 U.S. 319,
335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 [emphasis added].
30.
Petitioner argues "[t]he Supreme Court has found that
appointment of counsel is required under the Fifth Amendment in various civil
contexts,"[10] and cites a
total of five cases. However, each of
the five cases cited either weakens petitioner's claims outright or fails to
support petitioner's assertion that he has a due process right to counsel in
the present case due to inapplicability.
31.
In the first case petitioner cites, the court found that
"the involuntary transfer of a prisoner to a mental hospital implicates a
liberty interest protected by the Fourteenth Amendment's due process
clause." Vitek v. Jones, 445 U.S. 480, 500 (1980). But, it was because of the liberty at stake,
a stake absent in the present case, that the court held in Vitek that
there was a right to counsel. Thus the
Fifth Amendment holding in Vitek is inapplicable in the present case.
32.
In the second cited case, a juvenile delinquent was found
to have a right to counsel in a habeas proceeding. But again, the cite is inapplicable to the present case because
there was a liberty issue at stake, and the court equated the delinquency
proceeding in serious to a felony prosecution.
"A proceeding where the issue is whether the child will be found
to be 'delinquent' and subjected to the loss of his liberty for years is
comparable in seriousness to a felony prosecution. The juvenile needs the
assistance of counsel to cope with problems of law, to make skilled inquiry
into the facts, to insist upon regularity of the proceedings, and to ascertain whether
he has a defense and to prepare and submit it." In Re Gault, 387
U.S. 1, 36 (1967).
33.
The third case cited by petitioner, as already noted above,
undermines petitioner's claims since it explicitly notes that an "indigent
litigant has a right to appointed counsel only when, if he loses, he may be
deprived of his physical liberty." Lassiter. In the present case, petitioner is facing
deportation, not loss of liberty, and thus has no due process of law right to
counsel.
34.
In the fourth case cited by petitioner, the court held that
a parolee or an indigent probationer was, indeed, afforded a due process right
to counsel. But, again, the issue at
stake was loss of personal liberty:
"Even though the revocation of parole is not a part of the criminal
prosecution, we held that the loss of liberty entailed is a serious deprivation
requiring that the parolee be accorded due process." Gagnon v.
Scarpelli, 411 U.S. 778, 781 (1973).
35.
In the fifth case cited by petitioner to argue for a due
process right to counsel, the court held that "refusal to appoint attorney
for indigent alien in proceeding before immigration judge did not deny due
process." Aguilera. As
noted above, the text of the decision does not support petitioner's assertion
that "appointment of counsel may be required in deportation
proceedings."[11] The court merely held that petitioner in Aguilera
did not have a right to counsel.
36.
Petitioner might argue that the alleged "impasse"
in which petitioner finds himself might represent "indeterminate
detention," and, as such, makes the case a matter in which personal
liberty is at stake. Such an argument,
if made, should be rejected since the current "impasse," insofar as
one exists, is the result of a difference of interpretation between two
courts—a difference that can be easily resolved between the two courts and this
court. It is easily seen that
petitioner's position is not without end, and that, certainly, the petitioner's
case does not warrant establishment of a radical new right.
37.
In sum, the unfairness that petitioner posits as the
central part of his demand for taxpayer funded counsel under the Fifth
Amendment is not supported by case law, is not supported by the Constitution, is
counter to federal statute, and his demand should be rejected.
Mental Competency
38.
Petitioner correctly notes that by Section 240(b)(3) of the
Immigration and Nationality Act, "If it is impracticable by reason of an
alien's mental incompetency for the alien to be present at the proceeding, the
Attorney General shall prescribe safeguards to protect the rights and
privileges of the alien." Hence,
petitioner argues, the Attorney General must "(1) assess an individual's
competency at the outset of proceedings, and (2) provide adequate safeguards to
ensure that he or she is afforded a fair hearing."
39.
However, Section 240(b)(3) requires only that an alien be
competent enough to be present at a hearing, not that he be competent enough to
make a good showing of himself. If the
alien, through, e.g., belligerence and dramatic displays, casts doubt on his
mental competency, then the Attorney General may take steps to assess alien's
competency. In the present case, such
steps were properly taken, and a licensed professional mental health worker
found what is, quite frankly, evident in the transcripts[12]
of petitioner's hearings: The
petitioner is "skeptical" and answers most questions with a
"No," but his "memory is intact," and he is "able to
complete complex mental tasks."
The expert found petitioner to be "capable of/competent to
participate in an INS hearing."
40.
By arguing that the Attorney General must "assess an
individual's competency at the outset of proceedings"[13]
and by arguing that the professional evaluation given to petitioner was
inadequate, counsel for petitioner seems to be claiming that it is the job of
the Attorney General to conduct an exhaustive mental evaluation and
psychological work-up for the roughly 200,000 persons per year who are formally
removed from the United States.[14] Such a requirement, of course, would be as
absurd as it would be impossible. The
INS, in the present case, acted appropriately, sufficiently, and reasonably.
41.
Petitioner cites Nelson v. INS 232 F.3d 258 (1st
Cir. 2000) to recognize an "Immigration Judge's obligations to safeguard
respondent's rights under 8 C.F.R. §240.4."[15] However, Nelson is inapplicable to
the present case in that the court held there that a representative
could act for an incompetent, but it did not mandate counsel. Furthermore, the petitioner in Nelson
was denied her contention that her due process rights had been violated
in consequence of having no representative.
42.
Interestingly, in Nelson, the petitioner, a Suriname
national under deportation proceedings, made a mental incompetence due process
claim. In this narrow regard, Nelson
certainly is applicable and similar to the present case.
"Nelson suggests that the Immigration Judge's failure to account
for her mental incompetence by requesting a custodian or other party to appear
on her behalf was a violation of her right to due process. The INS has
specifically provided for custodial or other representation of incompetent
aliens in Regulation 240.4. Nelson
claims that her March 17, 1997 statement that her "memory ... is
bad," that she "forget[s] things and ... get[s] pain," and thus
that she was "not capable of defending [her]self" was a statement of
mental incompetency; and as such, that the Immigration Judge was required to
request a representative for her.
However, Regulation 240.4 is not applicable to this case, simply because
Nelson's health-related complaints do not rise to the level of mental
incompetence contemplated by Regulation 240.4."[16]
Nelson 261, 262 citing Nee Hao Wong v. INS, 550 F.2d 521, 522
(9th Cir.1977).
43.
In Nelson, the court held that the confusion alien
exhibited did "not rise to the level of mental incompetence contemplated
by Regulation 240.4" and, thus, there was no violation of the alien's due
process rights. In the present case,
petitioner's confusion seems very similar to that of the Nelson
case. If, in the case cited by
petitioner to argue for greater safeguards than that provided under law by the
INS, the alien's confusion didn't even rise to the level of ensuring a
representative, how much less can petitioner rely on Nelson and his own
confusion and belligerence to demand a Fifth Amendment right to public
counsel?
44.
Furthermore, Licensed Social Worker Julian Goulet, an
outside expert and mental health professional with Sea Mar Community Health
Centers of Seattle, examined petitioner in the present case. Mr. Goulet found petitioner to be
competent. Petitioner exhibited what
Mr. Goulet described in his chart entry "oriented x 3" competency.[17] Surely, the holding in Nelson
supports respondents' position that petitioner has no right to counsel on Fifth
Amendment due process grounds.
45.
Petitioner further argues, "[d]espite more than
fifteen hearings in this case, the government still has not afforded Mr. Gokce
a fair competency hearing."[18] Yet, elsewhere, petitioner argues, "Mr.
Gokce cannot have a fundamentally fair hearing without the appointment of
counsel."[19] One can conclude from this that the only
"fair" hearing in petitioner's eyes is one that results in a finding
that would impose a requirement on the court to provide paid counsel. Thus it is not surprising that petitioner
seeks to belittle Mr. Goulet's finding that petitioner is competent.[20]
46.
In
another place, petitioner argues he "cannot have a fundamentally fair
competency hearing without an attorney"[21]
based on the Board of Immigration Appeals' ("BIA") note that
petitioner's belligerence and dramatic displays "all seem to serve as
important indicia of the respondent's mental status." After dismissing out of hand Mr. Goulet's
professional assessment that petitioner is competent, petitioner then uses the
untrained and non-professional judgment of the BIA to assert petitioner is
incompetent. With this demonstration of
incompetence, petitioner demands public counsel, again citing Vitek v. Jones. (Once more, Vitek was a case in which
personal liberty was at stake, and so is inapplicable to the present case.)
47.
Petitioner
also argues that since the BIA was under the erroneous belief that petitioner
had pro bono counsel, and that the "quandary" over
petitioner's mental state was solved by such representation, the BIA therefore
held that the petitioner's mental competency is so deficient that petitioner
must be provided with public counsel.[22] Petitioner's conclusion cannot reasonably be
inferred from the BIA holding. The fact
that the BIA wrongly assumed petitioner had counsel does not support
Petitioner's assertion that the BIA insisted on counsel for fairness.
48.
Petitioner
argues that the "immigration judge, who has not talked extensively with
Mr. Gokce and is not trained to deal with persons suffering from mental
disabilities, is not in the best position to uncover the relevant facts about
his personal history."[23] Yet, petitioner dismisses the testimony of a
mental health professional who is trained to deal with persons suffering
from mental disabilities. Therefore, it
is hard to understand the petitioner's argument that, due to the petitioner's
mental incompetence, an immigration judge and a trained mental health
professional are unable to uncover relevant facts, but that paid counsel would
be able to.
49.
It
is also interesting to note that while petitioner gives weight to neither the
immigration judge's assessment, nor to Mr. Goulet's professional training to
deal with persons suffering from mental disabilities, petitioner puts great
store in the BIA's ability to determine mental competence—indeed, finding from
the BIA's non-professional and untrained assessment of petitioner's mental
competence an "impasse" and an outright Constitutional right.
50.
Petitioner
argues that his detention is "indeterminate," that there "is no
foreseeable end to his detention."[24] From this, petitioner maintains that his
Fifth Amendment due process rights are violated unless he is appointed counsel
and cites Zadvydas v. Davis in support, a case in which an alien faced
indeterminate post-order detention 533 U.S. 678 (2001). Zadvydas is not applicable in the
present case because, unlike an indeterminate detention in a post-order
detention, petitioner in the present case does not face indeterminate
detention, despite his claims to the contrary.
Rather, adjudication of this case would allow petitioner to regain his
personal liberty in his home country.
51.
Petitioner should not be provided legal counsel paid
for out of the public purse. The
Constitution provides the right to appointed counsel in a civil action under
the Fifth Amendment only when there is a deprivation of liberty at stake; a
deportation proceeding does not threaten in itself the loss of liberty. Furthermore, Congress clearly did not intend
foreign nationals who illegally and against the will of the American people enter
and/or remain illegally in the United States to be able to resist remedy with
counsel paid for out of public money.
52.
It
is FILE's position that if petitioner is allowed to prevail in this case, the
effects will mean a massive expansion of the illegal alien advocacy industry at
taxpayer expense. It will, furthermore,
subvert the will of Congress by undermining clear legislative intent, and increase
the potential for fraud and false claims in the asylum and removal process.
53.
This
court should dismiss petitioner's Motion for Order Appointing Counsel. By dismissal, this court will enable the
case to come to a just conclusion for the petitioner, in compliance with all relevant law.
Moreover, dismissal will serve the public good by recognizing Congress'
intention to limit the right to taxpayer-funded counsel in civil actions.
Date:
Respectfully
submitted,
_________________________
Craig Nelsen, director
Friends of Immigration Law
Enforcement
310 6th St S.E. 2nd Flr
Washington, DC 20003
202 543 2323
Amicus Curiae
April 16, 2003
Office
of the Clerk
Western
District of Washington U.S.D.C
1010
Fifth Ave Suite 215
Seattle,
WA 98104
[1] Petitioner's Exhibit F,
March 24, 2003; Petitioner's reply to
INS's motion to dismiss and memorandum in support of motion for order
appointing counsel, p. 7.1-4,
March 24, 2003