VIDEO: Alien in deportation proceedings is entitled to his complete file

Is an alien in deportation proceedings entitled to a complete copy of his immigration file in order to defend himself?

Hi. I’m Jim Hacking, immigration and deportation attorney here in St. Louis, Missouri.  The Board of Immigration Appeals handed down a decision last month that talks about an alien’s right to their records at deportation proceedings.  In this case, a young man from Mexico was charged with being removable and the Department of Homeland Security charged that he had entered the country without inspection, that is that he had snuck into the United States.

The man claimed that he had been in the United States since 1997 and that he had come on a valid agricultural visa.  What happened at the immigration court in Oakdale, Louisiana which is where cases from St. Louis used to be assigned, the man went to his first master calendar hearing and he asked the judge to allow him more time to find an attorney and to tender a defense.  The man did not get an attorney after that first continuance.  He went back a second time and asked the judge for a continuance.  The judge gave it to him one more time to hire an attorney.  On the third occasion, the man showed up without an attorney.  The judge said, “We’re not going to continue it anymore and we want to know what your response is to each of the allegations in the notice to appear.”

When an alien is in deportation, they’re given a notice to appear.  It lists the allegations, the factual and legal basis for why Department of Homeland Security contends that the alien is deportable.  At the hearing, you’re expected to say yes or no, to admit or deny each of the allegations.

As the government went through each of the allegations, the man admitted the vast majority of them but he denied that he had entered the country illegally, claiming again that he had entered on that agricultural visa back in 1997.  He did not have an attorney at the hearing.  At this point, it seems that the judge might have been fed up with the man and the man did not bring his passport with him to the hearing.  The court held that it was the alien’s burden, the man from Mexico’s burden, to show and to prove that he had entered the country legally and that he had failed to do so and ordered him removed.

The man appealed to the board of immigration appeals.  At some point between the time he was ordered deported and the time of his appeal, he had located proof that he had in fact entered the country legally on the agricultural visa.

The Board of Immigration Appeals remanded it but in a footnote, they also highlighted the fact that the alien should have been given a copy of his file and that the file did contain proof that back in 1997, he had been properly admitted on an agricultural visa.

Again, with all things, this case stands for many propositions, one of which it’s always better to have competent deportation immigration attorney assisting you.  We know how to get the records that you need in order to prove whatever defenses might be available to you.  When pro se, that means unrepresented people, go to immigration court, they’re really doing so at their peril.  They don’t know the rules or the procedures.  Judges can get frustrated.  I think this case really stands for the proposition that you’re always better off, especially in deportation with getting good immigration counsel.

If you have any questions about this rule, about the obligation of the Department of Homeland Security to provide documents and copy the file to the alien, give us call, 314-961-8200 or you can send me an email, jim@hackinglawpractice.com.  We’d be happy to discuss with you any questions that you have about removal or deportation or notices to appear.  Give us a call. Thanks.