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Deportations carried out in the middle of immigration cases

May 22, 2009|Anna Gorman

Fernando Arteaga appeared last week in Immigration Court as part of a lengthy battle to stay in the United States. But just before the hearing began, immigration officers removed him from the courtroom, arrested him and took him into custody.

Several hours later, agents deported him to Mexico -- even though his court case was still underway.

Arteaga, 44, is among a small number of immigrants picked up in recent weeks by immigration agents at the downtown Los Angeles courthouse. All of the people arrested there had been previously deported and all had criminal records, said Immigration and Customs Enforcement spokeswoman Virginia Kice.

Immigration agents are reinstating previous orders of deportation, Kice said, which "enables the nation's immigration judges to focus on the cases of those aliens who have not had their day in court."

"People arrested for being in the United States illegally have access to due process," she said. "However, those who exercise their rights, then willfully ignore the immigration judge's decision or willfully reenter the United States after being previously removed . . . must understand there are consequences for those actions."

The arrests have angered immigration attorneys, who argue that once an immigrant is in court, the judge should make the final decision -- not the immigration agency.

Immigration agents have a choice when they encounter someone with a previous deportation order: They can either reinstate the order or issue a charging document and start a new court case, said Stacy Tolchin, a Los Angeles immigration attorney. If they choose to send the illegal immigrant to court, she said, case precedent holds that the previous order can't be reinstated until the judge terminates the case.

"Once they start that case, only the immigration judge can end it," said Tolchin, of the law firm Van Der Hout, Brigagliano & Nightingale, LLP. "It is really up to the judge's authority."

Retired Los Angeles immigration judge Gilbert T. Gembacz said immigration agents are "asserting power and authority they do not have" by arresting immigrants in the courthouse before proceedings are completed.

"They are acting in a way that demonstrates contempt toward the Immigration Court," he said. "They are acting like immigration judges have no purpose."

Arteaga, an illegal immigrant from Mexico, was deported in 1988 based on an assault conviction and sneaked back across the border soon after. In 2003, he was arrested by immigration officials but was released from detention after paying a bond. The immigration agency gave him a notice to appear in court. For the last six years, he had been fighting to stay in the country based on his marriage to a U.S. citizen. The couple have three U.S.-born children.

Arteaga's attorney, Mario Acosta Jr., said that moments after his client was arrested May 11, he went into the courtroom and explained what had happened. The judge issued a stay of deportation, Acosta said, but the immigration agency ignored the order and deported Arteaga anyway.

"It's mind-boggling," the lawyer said. "To basically arbitrarily decide that you don't want to wait and just deport him, even though his case is still pending before an immigration judge, just screams abuse of power."

Acosta said he is trying to find a legal way to bring his client back to the U.S. to continue with the case.

Arteaga's wife, Rocio, said she was shocked by her husband's arrest, because he had already been allowed out of detention on bond and was doing everything the judge and the government asked.

"My family wants answers," she said. "We want an explanation. Isn't it the judge who has the final word?"

In another case, Salvadoran immigrant Victoria Alfaro was arrested in early May at the Los Angeles immigration courthouse, even though her case wasn't over. She had been deported in 1990 because of a drug conviction and returned illegally. She was placed in immigration proceedings after applying to the government for protected legal status.

Now, she is in immigration custody and her attorney, Gregory Olive, is trying to get her released on bond so she can continue with her case.

Olive said he questions why the government has been moving forward with her court case over the last three years if it planned to arrest and deport her before it was over. "It's a waste of resources," he said.

Olive also said that arresting people in the courthouse is "bad public policy."

"Are people really going to come to court if they think they can be arrested?" he said.

Kice said agents decide where to arrest immigrants depending on several factors, including the availability of information about their whereabouts.

--

anna.gorman@latimes.com

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