On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A037-082-657.
The opinion of the court was delivered by: Kleinfeld, Circuit Judge
Argued and Submitted April 13, 2010 -- San Francisco, California
Before: Andrew J. Kleinfeld, A. Wallace Tashima and Sidney R. Thomas, Circuit Judges.
We address an alien's right to see his "A-file" during proceedings against him.
The Department of Homeland Security initiated removal proceedings against Dent on the ground that he was not an American citizen or national, and had been convicted of an aggravated felony. He has lived in the United States since 1981, but according to the government, he is a citizen of Honduras and has been a lawful permanent resident rather than a citizen. He was convicted on a guilty plea in the Superior Court of Arizona of possession or use of narcotic drugs*fn1 and escape in the third degree,*fn2 both felonies, and sentenced to one year of imprisonment.
Dent defended pro se against his removal, arguing that he had been adopted by an American citizen when he was a child, and was an American citizen himself. He also argued that his convictions did not suffice to make him an aggravated felon under the statute.*fn3 The BIA adopted and affirmed the IJ's decision that he be removed.
Dent at first conceded, at a hearing before the IJ, that he was not a citizen of the United States. Subsequently, when the IJ found that his escape, though on foot and for only half a block, was a crime of violence, and that the charge of removal had been proved, Dent said "I was adopted, you know that. You guys know that." The IJ said he knew nothing about it.
In a previous hearing, government counsel had referred to Dent's Alien File ("A-file") ("[the I-261] might have had a different 'A' number on because we had to change 'A' numbers on this case . . . ."). In an earlier separate proceeding the government filed a "motion to change A-file number" from A24 411 521 to A37 082 657, consolidating the two files for Dent, also using his pre-adoption name, Cesar Augusto Jimenez-Mendez. The government had not given copies of the A-file to Dent or to the IJ in Dent's removal case. An A-file is the file maintained by various government agencies for each alien on record. "Contents include, but are not limited to passport, driver's license, other identification cards, and photographs; immigration history (prior record); and all documents and transactions" relating to the alien.*fn4
After Dent told the IJ he had been adopted by an American citizen, the IJ reminded him that "You admitted that you're a native and citizen of Honduras." Dent replied "Yes. But I no [sic] I don't know anybody over there. I've been here since I was 11 years old so I don't know." He went on, "I have my adoption papers to show you, if you want to see them." The IJ understood Dent to mean that he was claiming United States citizenship and asked Dent if he had the adoption papers with him. Dent did not, so the IJ gave him a continuance so that he could produce them.
Dent succeeded. He wrote the lawyer in Arkansas who had handled his Arkansas adoption twenty years before, and produced not only his adoption decree, but his school records showing his elementary and high school attendance and his grades. But then government counsel pointed out that he had not proved that his adoptive mother, Roma Dent, was herself an American citizen. The IJ asked Dent if he had his now-deceased mother's birth certificate. Dent did not, so the IJ gave him three weeks to get it and produce it. Dent wrote the Arkansas adoption lawyer again. The lawyer replied that he would be unable to find a death certificate because Ms. Dent had died in Honduras, and a birth certificate would be a problem because "She was born before the central registry of birth certificates were issued. I have contacted the Labette County Courthouse in Kansas and due to a fire, they have lost all birth certificates before 1911." (Ms. Dent was born in 1905.) He was working on getting her passport, difficult since she had died on a trip to Honduras. Nevertheless the adoption lawyer sent Dent other persuasive evidence of his adoptive mother's citizenship: her 1950 application for a social security number, in which she had represented that she was born in Morehead in Labette County, Kansas June 17, 1905, of Arley Riggs and Irma Riggs nee Ross.
Dent wrote a statement to the IJ explaining that Ms. Dent had taken him, a child abandoned at age five or six, under her wing on her annual trips to help poor people in Honduras, brought him to America, and adopted him when he was fourteen:
I was born in Honduras, Central America, I was abandoned at an early age by my biological parents. Probably when I was 5 or 6 yrs. old, one American woman by the name of Roma Riggs Dent, used to travel to Honduras then in the mid 70's to help the poor people, with clothes, food, and education, etc . . ., she was not connected or affiliated to any church, ...