COLUMBIA LEGAL SERVICES

2 Atieno Odhiambo, WSBA #30280 Patricia J. Arthur, WSBA #13769

3 Nancy L. Isserlis, WSBA #11623

4

1704 West Broadway Spokane, WA 99201

5 (509) 324-2789

FILED IN EASTERUN SD.ISDTIRSITCRTICOTFCWOAUSRHTINGTON

FEB 192002

a JAMES

LARSEN, CLERK

6 NORTHWEST IMMIGRANT RIGHTS PROJECT Matthew Adams, WSBA #28287
7 121 Sunnyside Avenue 8 Granger, WA 98932
(509) 854-2100
9

10

SOUTHERN POVERTY LAW CENTER Rhonda Brownstein

II Rohit Nepal

12

400 Washington Avenue Montgomery, AL 36104

13 (334) 956-8200

14 Attorneys for Plaintiffs

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE EASTERN DISTRICT OF WASHINGTON

17
MARCOS GONZALEZ MACHADO, by 18 and through DAVID GROESBECK, the
s,O2-OO6fr" FYS 19 Proposed Guardian ad Litem, and all othe
20 similarly situated,

21

Plaintiffs,

22
vs.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

23

24 JOHN ASHCROFT, Attorney General; ROBERT COLEMAN, District Director,
25 Seattle INS District Office; and 26 IMMIGRATION AND 27 NATURALIZATION SERVICE,

CLASS ACTION

28

COMPLAINT- 1 of9

COLUMBIA LEGAL SEW 1704 WEST BROAI SPOKANE, WA
TELEPHONE (509)32 FAX (509) 32

I. PRELIMINARY STATEMENT
2
1. This is a class action seeking declaratory and injunctive relief against the
3
4 Immigration and Naturalization Service ("INS") for failing to provide Plaintiff, and all
S other similarly situated minors, with legal counsel at government expense during
6
7 immigration removal/deportation proceedings.

8

2. Plaintiff, Marcos Gonzalez Machado, is a fifteen year old minor being

9
10 detained by the INS at a secure detention facility located near Spokane, Washington.

11 The sole reason he is in custody is to await removal proceedings to determine whether

12
he will be deported from the United States. Marcos is indigent and does not have
13
14 legal representation to assist him with his immigration proceedings. Marcos seeks an

Is injunction on behalf of himself, and others similarly situated, requiring the INS to
16
17 provide indigent minors who are detained in secure and shelter care facilities, and

IS awaiting removal proceedings with legal representation at government expense.
19
3. Plaintiff further asks this Court for a Declaratory Judgment declaring that
20
21 the INS violates the due process rights of minors who are in INS custody in secure
22 and shelter care facilities by failing to provide them with legal representation during
23
24 removal proceedings.

25

26

27

28
COMPLAINT- 2 of9

COLUMBIA LEGAL SERVLC1 1704 WEST BROAD WA SPOKANE, WA 992(
TELEPHONE (509) 324-2fl FAX (509) 324-27

H. JURISDICTION AND VENUE

2

3

4. Jurisdiction of the Court is predicated upon 28 U.S.C. § 1331 and

4 1346(a)(2) in that the matter arises under the Constitution and the laws of the United

5 States and the United States is a Defendant.
6

7

5. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)

8 and (e)(1), (2), and (4) because the events and omissions giving rise to the claim
9
10 occurred in Spokane County.

ii

6. Declaratory Judgment is sought pursuant to 28 U.S.C. § 2201-02.

12
ifi. PARTIES
'3 I

14

7. Plaintiff Marcos ("Marcos") Gonzalez Machado is a real party in interest

15 in this case. He is currently in INS custody.
16

17

8. David Groesbeck is Marcos' proposed guardian ad litem. Pursuant to LR

18 17.1(a), he is an attorney in good standing and is licensed to practice in the United
19
20 States District Court for the Eastern District of Washington.

21

9. Defendant John Ashcroft is the Attorney General of the United States

22 and, as such, is charged with the constitutional and lawfbl implementation of the
23
24 Immigration and Naturalization Act ("INA"). He is sued in his official capacity.

25

10. Defendant Robert Coleman is the District Director of the INS in Seattle,

26
27 Washington and, as such, is charged with the constitutional and lawful

28 implementation of the 1NA. He is the INS officer currently responsible for Marcos'

COMPLAINT- 3 of9

COLUMBIA LEGAL SERVJ 1704 WEST BROAD'S SPOKANE, WA 9

TELEPHONE (509)324 FAX 509) 324

custody, care, well-being and processing wider the INA. He is sued in his official
2
capacity.
3

4

11. Defendant Immigration and Naturalization Service ("INS") is an agency

5
of the United States Department of Justice and is responsible for the administration of
6
1 the INA and regulations and policies issued thereunder.

8

IV. STATEMENT OF THE FACTS

9

10

12. Marcos was born on May 8, 1984. His father died when he was young

II and his mother abandoned him shortly thereafter. He was raised by his grandfather.
12
13. Prior to his detention, Marcos was residing in Seattle, Washington with
13
14 his aunt and uncle.

15

14. In February 2002, Marcos was kidnapped at gunpoint. He went to a

16

11 police station in Seattle to report that he had been the victim of a crime. He informed

18 the police that he would be able to identify the perpetrators of the crime.
19
15. The police department notified the INS and Marcos was placed in INS
20
21 custody in Seattle, Washington. Shortly thereafter, he was transferred to Martin Hall
22
in Eastern Washington. He is being held in custody there awaiting immigration
23
24 removal proceedings.

25

16. Martin Hall is a secure juvenile detention facility located in Medical

26
27 Lake, Washington. It is a lockdown facility used by several Washington counties to

28
I COMPLAINT- 4 of9

COLUMBIA LEGAL SEW 1704 WEST BROAI SPOKANE, WA
TELEPHONE (509)32 FAX (509)32

incarcerate juvenile offenders. The INS also contracts with Martin Hall to detain
2
being held on immigration mailers.
3

4

17. At Martin Hall, Marcos and other INS detainees are treated as prisoners,

5
even though they have not been charged with any criminal offense. Marcos and the
6
7 other INS detainees are in daily contact with juveniles who have committed violent

offenses.
9
18.
10

Marcos is not at liberty to leave Martin Hall except for appearances

11 before the Immigration Court. When transporting Marcos to and from appearances
12
before the Immigration Court, INS uses physical restraints, such as handcuffs and
13
14 shackles.

Is

19. Marcos does not speak English. Martin Hall has a limited number of

16

17 staffmembers who speak Spanish, his native language. As a result, Marcos is unable

I8 to adequately communicate with either staffmembers or other detainees.

19

20

20. Marcos is currently in removal proceedings before the Immigration

21 Court. The INS is seeking to deport Marcos to Mexico.

22

21. Marcos has not been able to secure an attorney to represent him in his

23

24 immigration mailers.

25

will 22. If the MS prevails in Marcos' removal proceedings, they physically

will 26
27 transport him against his

to Mexico. Marcos could also be permanently baited

28 from returning to the United States. Marcos would thus be separated from his aunt

COMPLAINT- 5 of 9

COLUMBIA LEGAL SERVI 1704 WEST BROADV SPOKANE, WA 9
TELEPHONE (509)324FAX (509)324-:

and uncle, with whom he was living in Seattle. Marcos' aunt and uncle are United
2
States citizens. If Marcos were removed from the United States to Mexico, his aunt
3
4 and uncle would not be able to petition for his return to the United States.
$
23. Removal proceedings are governed by the [NA, an extremely complex
6
7 statutory scheme. Marcos is unfamiliar with the provisions of the INA and with the

8 legal system of the United States. Due to his youth, immaturity, inability to speak or
9
10 understand English, and lack of familiarity with the legal proceedings and applicable

II law, Marcos will have extreme difficulty understanding the nature of the legal

will 12 proceedings. Without legal assistance, it

be nearly to impossible for him to

13

14 meaningfully participate in his removal proceedings.

Is

will 24. Without the assistance of counsel, Marcos

not even be aware of

16

17 available remedies he has under the law that could enable him to avoid

I18 removal/deportation from the Untied States. For example, Marcos could ask for
'9
I immigration relief pursuant to INA § lOl(a)(l5)ØIJ'), 8 U.S.C. § 1 lOl(a)(15)(U)
20
I21 (application for victims of violent crimes), and INA § lO1(a)(27)(J), 8 U.S.C. §

22 1110 l(a)(27(J) (special immigrant juvenile status) which would permit him to avoid

23

I will 24 removal/deportation. Without the assistance of counsel, Marcos

be unable to

25 present his claims for relief to the Immigration Court. In the absence of the assistance

26
27 of counsel, it is probable that Marcos will be erroneously deported. Appointing

will 28 counsel to represent Marcos

substantially decrease the likelihood that he will be

COMPLAINT- 6 of 9

COLUMBIA LEGAL SERVI 1704 WEST BROADS spoicAliF, WA 9
TELEPHONE (509) 324FAX (509) 324.

erroneously removed from the United States and permanently separated from his
2
3 home and family here.

4

25. INS District Counsel appoints an Assistant Attorney to represent the INS

5
at all removal proceedings. Marcos, on the other hand, must defend himself against
6
7 counsel appointed to represent the opposing side.

8

V. CLASS ALLEGATIONS

9

10

26. Marcos brings this action on behalf of himself; and all others who are

11 similarly situated, pursuant to FED. R. Civ. P. 23(a) and 23(b)(2). Plaintiff

12
provisionally proposes the following class definition:
13

14

All current and future unaccompanied, indigent minors who are in

Is

INS custody in a secure detention or shelter care facility and for whom the INS has not appointed a legal representative at government

16

expense to represent them during removal proceedings.

17
27. This is an appropriate class action because the class is so numerous that
18

'9 joinder of all of the members is impracticable. Members of the proposed class

20 number in the thousands.

21

22

28. There are questions of law and fact common to the class, including

23 whether the current INS policy of failing to appoint legal counsel to represent
24
unaccompanied, detained minors is lawful.
25

26

29. The claims of the named Plaintiff are typical to the claims of the class.

27

28

COMPLAINT-i of 9

COLUMBIA LEGAL SEW
1704 WEST BROAJ SPOKANE, WA
TELEPHONE (509)32 FAX (509) 32

30. The named Plaintiff will fairly and adequately protect the interests of the
2
3 class because he has been subjected to the conditions challenged by the class as a
4 whole.

5
31. The named Plaintiff has available competent counsel with experience in
6
7 civil rights, prisoner's rights and immigration law who are willing and able to protect

8 the interests of the class.

9

10

32. The Defendants have acted or refused to act on grounds generally

II applicable to the class, thereby making appropriate final declaratory and injunctive

12
relief with respect to the class as a whole.
13

14

VI. IRREPARABLE INJURY

IS

33. Plaintiff, and others similarly situated, are threatened with immediate,

16

17 irreparable harm by the unlawful failure of the INS to appoint counsel to represent

18 them in their removal proceedings. Such injury includes deprivation of due process
19
20 through removal from the United States and denial of rights under the NA in general.

21

'/11. CAUSES OF ACTION

22
34. Defendants' failure to appoint counsel to represent Plaintiffs in their
23
24 removal hearings denies them their due process rights in violation of the Fifth

25 I Amendment ofthe United States Constitution.
26

27

28

I COMPLAINT- S of9

COLUMBIA LEGAL SER 1704 WEST BROAJ SPOKANE, WA
TELEPHONE (509)32 FAX (509) 32

Vifi. PRAYER FOR RELIEF
2
WHEREFORE, Plaintiff prays this Court:

4

1. Certify this action as a class action pursuant to FED. K Civ. P. 23(b)(2);

$

2. Issue a Declaratory Judgment declaring that Defendants have violated

6

7 Plaintiff's due process rights and declaring that the Plaintiffs due process rights

S entitle him, and all others similarly situated, to have counsel appointed to represent
9
10 them in removal proceedings at government expense;

II

3. Issue an injunction appointing counsel to represent members of the class

12
in removal/deportation proceedings;
13

14

4. Award Plaintiffs' costs of this suit and attorney's fees reasonably

15 incurred as a result of this lawsuit pursuant to the Equal Access to Justice Act, 28
16
Ii U.S.C. § 2412(d) or any other applicable law; and

IS

5. Grant Plaintiffs other such relief as the Court deems appropriate and just.

19

/9 Respectfully submitted this

day of February,2002.

20

21

22

23

ATIEWa ODHITAMBO, WSBA #30280

24

Attorney for Plaintiffs

25

26

27

28
I COMPLAINT- 9 of9

COLUMBIA LEGAL SERVICE 1704 WEST BROADWA SPOKANE, WA 992(
TELEPHONE (509) 324-27 FAX (509) 324-27

 
 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

UNITED STATES DISTRICT COURT

JUN 1. 8 2032

2

EASTERN DISTRICT OF WASHINGTON

JAMES P. LARSEN, CLERK

3

DEPUTY SPCKANE, WASHINGTON

4

5

MARCOS GONZALEZ MACHADO, by and through DAVID GROESBECPC, the

6

Proposed Guardian ad Litem, and all others similarly situated,

7

8

Plaintiff,

No, C5-02-0066-FVS ORDER GRANTING MOTION TO DISMISS

9

V.

10

11

JOHN ASHCROFT, Attorney General; ROBERT COLEMAN, District

12

Director, Seattle INS District Office; and IMMIGRATION AND

13 NATURALIZATION SERVICE,

14

Defendants.

15

16

THIS MATTER came before the Court for a hearing on June 6, 2002,

17 on the plaintiffs motion for class certification and the defendants'

18 motion to dismiss. Rhonda Brownstein of the Southern Poverty Law

19 Center argued the motions for the plaintiff. With her on the briefs

20 were Rohit Nepal, also of the Southern Poverty Law Center, Matthew

21 Adams of Northwest Immigrant Rights Project, and Nancy Isserlis,

22 Atieno Odhiambro and Patricia Arthur, of Columbia Legal Services.

23 Michelle E. Gorden, United States Department of Justice, Office of

24 Immigration Litigation, argued the motions for the government. With

26 her on the briefs were Papu Sandhu, also of the Office of Immigration

26 Litigation, and Assistant United States Attorney William H. Beatty.

ORDER GRANTING MOTION TO DISMISS - 1

2ACICGROtTND

2,

In this action the plaintiff seeks to establish a right under

the Due Process Clause of the Fifth Amendment for detained,

4 unaccompanied and indigent juvenile aliens in the immigration and

Naturalization Service ("INS") deportation process to be appointed

6 counsel at government expense.

7

The plaintiff is a juvenile, 14 years old when this action

8 began, and a citizen of Mexico. His father is deceased and his

S mother abandoned him when he was young. He does not speak English,

10 and he is indigent. He was taken into immigration and Naturalization

11

Service ("INS") custody after being kidnaped in Seattle, Washington,

12

where he had been living with his aunt and uncle. Mr. Gonzalez was

13

transferred to Martin Hall, a state juvenile offender facility in the

14 Eastern District of Washington that houses juvenile aliens under

15

contract with the INS. During an initial proceeding before an

16

immigration Judge ("IJ"), Mr. Gonzalez agreed, without the advice of

17 counsel, to accept "voluntary departure."

18

Mr. Gonzalez then filed this action for injunctive and

19 declaratory relief and certification of a class of similarly

20 situation persons. Mr. Gonzalez also sought a temporary restraining

21

order and preliminary injunction halting his deportation proceedings

22

and requiring the INS to appoint counsel to represent him at

23

government expense. The government stipulated that it would not seek

24 to physically remove the defendant from the United States while this

26 action was pending. The Court further order a halt to proceedings

26

involving the plaintiff, and ordered that if the government and the

ORDER GRANTING MOTION TO DISMISS - 2

plaintiff could not work out an agreement providing for the plaintiff 2 to be released on bond, that specific counsel be appointed to 3 represent the plaintiff in connection with his release status only, 4 at government expense. The parties were unable to come to an 5 agreement, and counsel was appointed, but could not secure the 6 plaintiff's release. Mr. Gonzalez then asked the Court to dissolve

7 its injunction and allow him to be deported in order to leave Martin 8 Hall.

9

In lieu of a response the government filed the instant motion to

10 dismiss, which was heard simultaneously with the motion for class

11 certification.

12

DISCUSSION

13

The government moves to dismiss under Fed. R. Civ. 2. 12(b)(1)

14 for lack of subject matter jurisdiction' and Rule 12 (b) (6) for 15 failure to state a claim upon which relief may be granted. The Court 16 dismisses the action under Rule 12(b) (6). The plaintiff's legal 17 position is contrary to Ninth Circuit precedent, which 'holds that 18 there is no right to appointed counsel in deportation proceedings. 19 The plaintiff has not distinguished his claim nor demonstrated that 20 his position is a natural progression of the law that should be 21 recognized despite its conflict with precedent. The motion for class

22

23

The government's jurisdiction arguments focus on mootness

and administrative exhaustion. However, the government also

24 asserts that the Court lacked jurisdiction to issue its prior

injunction preventing the government from deporting the plaintiff

25 or proceeding with deportation or removal hearings pending an

order from the Court.

g Mern. in Support of Gov't Motion to

26 Dismiss at 39. Because the Court has already dissolved the

injunction on the plaintiff's motion, that issue is moot.

ORDER GRANTING MOTION TO DISMISS - 3

certification is denied as moot.

2

A. Motion To Dismiss or for Summary Judgment?

The Court must initially consider whether it would be

41 appropriate to treat the government's motion as a motion to dismiss 5 under Fed. F. Civ. 2. 12 or convert the motion into a Rule 56 motion 6 for summary judgment.

7

In support of its motion, the government filed several documents

6 that were not referred to in the complaint, and alleged a number of

9 facts not mentioned in the complaint. Documents not part of a

10 complaint "may be considered on a motion to dismiss only if their

1-I authenticity is not contested and the plaintiff's complaint

12 necessarily relies on them." Wyatt v Terhune 280 F.3d 1238, 1246

13 (9th dr. 2002) (summarizing Lee v Los Angeles 250 F.3d 668, 588

14

(9th Cir. 200-1)). The Court may not convert the motion without

15 giving the plaintiff some opportunity to present evidence in

16 response. See Anderson v Angelone 86 F.3d 932, 934-35 (9th dir.

17 1996); Grove v Mead School fist No 354, 753 F.2d 1528, 1532-33

16

(9th dir. 1985)

19

Consideration of all of the materials and facts in the

20 government's briefing would not convert the Rule 12(b) (1) portions of 21 the motion into a motion for summary judgment. See Assn of Am Med. 22 Coils v United States 217 F.3d 770, 778 (9th Cir. 2000) (holding

23 that courts may consider extra-pleading material in evaluating a 24 motion to dismiss for lack of subject matter jurisdiction). However,

25 considering these facts in the context of the Rule 12(b) (6) portion 26 of the motion would convert that portion into a motion for summary

ORDER GRANTING MOTION TO DISMISS - 4

judgment.

2

The outside information presented by the qovernment includes

3 evidence about Mr. Gonzalez' prior criminal activity, statistics

4 related to juvenile aliens in the INS system, and the like. Because

5 the Court does not need to rely on any of this information in order

6 to rule in the government's favor on the Rule 12(b) (6) portion of the

7 motion to dismiss, the court ignores all of this information in that 8 context.

9

B.

Mootness

10

The government argues that the action should be dismissed for

11 lack of subject matter jurisdiction under Fed. R. Civ. p. 12(b) Cl)

12 because Mr. Gonzalez' due process claim is moot. The government

13 asserts that Mr. Gonzalez' deportation proceedings are over, ending

14 his need for appointed counsel to represent him.

15

Mr. Gonzalez' claim may be moot as a result of his departure

16 from the United States, although it was not moot when this action was

17 filed. Mr. Gonzalez accepted voluntary departure during his first

18 hearing but filed a motion to reopen his case and for

19 reconsideration. Therefore, at the time this case was filed Mr.

20 Gonzalez still faced potential proceedings before the INS in which

21 counsel would be of assistance. However, following unsuccessful

22 attempts to bond him out of INS detention, Mr. Gonzalez asked the

23 Court to lift the stay preventing his removal, accepted voluntary 24 deportation, and was removed from the United States. This may have 25 ended the possibility of reopening or appealing his case, and mooted 26 the issue of representation by counsel.

ORDER GRANTING MOTION TO DISMISS - 5

However, "{t] he Supreme Court has held that, even in the absence

2, of prior class certification, the resolution of the named plaintiffs substantive claim does not necessarily moot all other issues in the

4 case." Sze v INS 153 F.3d 1005, 1009 (9th Cir. 1958) (citing

United States Parole Comm'n v Geraahty, 445 U.S. 388, 402, 100 S.Ct.

6 1202 (1980)); Gerstein v Pugh 420 U.S. 103, 110 n.11, 95 S.Ct. 854,

861 n.h (1975) (holding that even though named plaintiff's claims S were moot and plaintiff was not likely to suffer same deprivation 9 again, case could continue pending class certification). Mootness on 10 the part of the individual, plaintiff's claim will not render the 11 whole case moot pending class certification if the class is

12 "inherently transitory."

, 153 F.3d at 1009 (Quotin2 iasht,

13 445 U.S. at 397, 100 S.Ct. at 1209). "An inherently transitory claim

14 is one where there is a constantly changing putative class, and where

15 the trial court will not have even enough time to rule on a motion

16 for class certification before the proposed representative's

17 individual interest expires." Sze, 153 F.3d at 1009 (ci.ioting

-Ia Geraght445 U.S. at 359, 100 5.Ct. at 1209 and Wade v Kirkland

19 118 F.3d 667, 670 (9th Cir. 1997) (finding that class of prisoners

20 working on chain gang was inherently transitory)) (internal

21 punctuation omitted). However, it must also appear that a class of

22 persons with the same potential claim will continue to exist after

23 the expiration of the individual's claim. See Gerst, 420 U.S. at

24 110 ri.hl, 95 S.Ct. at 861 n.11; Sze, 153 F.3d at 1009-lU (holding

25 mootness of class representative's claim fatal when class was

26 shrinking due to change in challenged INS procedures)

ORDER GRANTING MOTION TO DISMISS - 6

As the government itself points out, most juvenile aliens who 2 are taken into custody are released relatively quickly, and
adjudication of most juveniles deportation status is usually

4

accomplished quickly as well.' The governments statistics indicate

5i that the pace of immigration proceedings is much more rapid in most

cases than the pace of District Court proceedings. As a result, this

7 Court did not (and likely would not if this case were to be repeated)

S have time to rule on a motion for class certification before the

9 plaintiffs due process claim became moot.

10

Therefore, it appears that the class of persons that Mr.

"71 Gonzalez seeks to represent is "constantly changing" and is

12

'inherently transitory.

, 153 F.3d at 1009. Also, "the constant

13 existence of a class of persons suffering the deprivation is 14 certain," Gerstein 420 U.S. at 110 n.11, 95 S.Ct. at 861 n.11,

15

because there is no indication that the INS has changed or will

16 change its past practice with regard to detention and deportation of

17 juveniles. Thus, even if Mr. Gonzalez' individual claim is moot,

18

this exception to the general justiciability requirement of Article

19

III applies in this case. The government's motion to dismiss for

20 mootness is denied.

21

C.

Procedural Exhaustion

22

Second, the government argues that the Court lacks jurisdiction

23 because Mr. Gonzalez failed to administratively exhaust his claim

24 before the Board of Immigration Appeals ("IA") . This assertion

25
2 As noted above, referring to these facts in the context of 26 a Rule 12(b) (1) motion based on jurisdiction does not convert the
motion into a motion for summary judgment.
ORDER GRANTING MOTION To DISMISS - 7

lacks merit.

2

In the immigration context exhaustion is only required for

3 "procedural errors, constitutional or otherwise, that are correctable

4 by the [BIA] "" ju v Waters SS F.3d 421, 426 (9th Cir. 1995)

Exhaustion is not required where administrative review of the claim 6 would be futile. See Mccarthy v Madigan 503 U.S. 140, 144, 112

7

SOt. 1091 (1992). Statutory exhaustion requirements do not apply to

allegations that the INS' practices and procedures are themselves

unconstitutional. El Rescate Legal Serve Inc. v Exec. Office of

10 Immigration Review 959 F.2d 742, 748 (9th Cir. 1991) ; Detroit Fr 11 Press v Ashcroft 195 F. Supp.2d 948, -'- (E. P. Mich. 2002) (holding

12 exhaustion not required on alien's due process challenge to INS

13 directive to close certain post-9/ii immigration hearings)

14

Here, the BIA clearly lacked any authority to correct the due

15 process violation that Mr. Gonzalez alleges, because the statute

16 under which the INS operates specifies that aliens only have a right

17 to counsel at their own expense. See S U.S.C. § 1252(b). Moreover,

18 the SIA itself has declared that it lacks jurisdiction to hear the

19 specific due process claim that Mr. Gonzalez advances, See Matter of

20 Gutierrez 16 I. & N. Dec. 226, 229 (1977) (declining to consider

21 argument that due process requires appointed counsel; 'we are

22 precluded from entertaining constitutional challenges to the Act

23 itself."). Therefore, the defendants' Rule 12(b) (1) motion based on

24 lack of administrative exhaustion fails.

25

D.

Failure to State a Claim Upon Which Relief Can Be Granted

26

The government moves to dismiss this action on the basis that

ORDER GRANTING MOTION TO DISMISS - 8

Mr. Gonzalez has failed to state a claim upon which relief can be 2 granted. See Fed. R. Civ. P. 12(b) (6). The government argues that

3 Mr. Gonzalez has failed to state a claim because Congress has 4 determined that aliens only have a right to counsel at their own

expense; courts have already determined that due process does not 6 require that counsel be appointed in deportation proceedings; and the

7 statutory rights conferred by Congress adequately protect juvenile

8

aliens and satisfy due process.

9

Mr. Gonzalez responds that Congress' determination that aliens

10 have a right to counsel at their own expense is irrelevant to the

11

question whether due process requires more, and that due process

12

requires that indigent juvenile aliens in INS detention have counsel

13

appointed for them at government expense. Specifically, the

14 plaintiff argues that the Court should apply the test established in

15 Matthews v Eldridge 424 U.S. 319, 335, 96 S.Ct. 693, 903 (1976),

16

for determining what due process requires.'

17

"On a motion to dismiss we are required to read the complaint

18

charitably, to take all well-pleaded facts as true, and to assume

19

20

The Matthews factors are: (1) the private interests of the

21

person subject to the government proceeding; (2) the government's interests; and (3) the risk that the procedure, if carried out

22

without the requested accommodation to the individual will result in an erroneous result. Matthews 424 U.S, at 335, 96

23 S.Ct. at 903, The plaintiff further argues that, if the Court

concludes that due process requires the appointment of counsel,

24

the court should not leave the issue to a case-by-case

determination, but should declare the right to be automatic. CL..

25 Lassiter v Dept Social Servs. 452 U.S. 18, 31, 101 S.Ct. 2153,

2162 (1961) (due process only requires that counsel be appointed 26 to represent parents in parental-rights-termination proceedings
if trial court so determines on facts of particular case)

ORDER GRANTING MOTION TO DISMISS - 9

that all general allegations embrace whatever specific facts might be 2 necessary to support them." Peloza v Capistrano Unified Sub. Dist. 3 37 F.3d 517, 521 (9th Cir. 1994) ; lcnevelbaard Dairies v Kraft Foods

4 Inc. 232 F. 3d 979, 984 (9th dr. 2000) (U [T] he court must presume S all factual allegations of the complaint to be true and draw all
reasonable inferences in favor of the nonmoving party."). The claim that due process requires the appointment of counsel
S at government expense for aliens has been rejected by the Ninth

9 Circuit on many occasions in cases that did not distinguish between

10 adult and juvenile aliens. See,

United States v Cerda-Pena

11 799 F.2d 1374, 1376 n. 2 (9th Cir. 1986). Therefore, despite this

12 precedent, the plaintiff's specific due process claim is not 13 necessarily defeated because It is limited to indigent, 14 I unaccompanied, juvenile aliens in INS detention. "Dismissal is 15 proper only where there is no cognizable legal theory or an absence

18

of sufficient facts alleged to support a cognizabJe legal theory."

17 Navarro v Block 250 F3d 729, 732 (9th dir. 2001) ; Balistreri V

18 Pacifica Police Dept. 901 F.2d 695, 699 (9th dir. 1988). "Rule

19 12(b) (6) dismissals are especially disfavored in cases where the

20 complaint sets forth a novel legal theory that can best be assessed

21 after factual development." Baker v cuomo 58 F.3d 814, 818-19 (2d

22 Cir, 1995). However, when a plaintiff proceeding on a novel theory

23 is faced with a Rule 12(b)(6) motion, "[tjhe plaintiff has to show

24 that while her claim has no basis in existing law, or at least the

25

law's current pigeonholes, it lies in the natural line of the law's

26 development and should now be recognized as part of the law."

ORDER GRANTING MOTION TO DISMISS - 10

Kirksey if R.J Reynolds Tobacco Co. 168 F.3c5. 1039, 1041-42 (7th.

2 Cir. 1999) (emphasis in original)

3

Therefore, this action may be maintained if the plaintiff can

4 distinguish his legal position from unfavorable precedent on the

5 basis that the reasoning of those case has been eroded by subsequent

6 developments or is inapplicable to juvenile aliens.

7

1. Statutory Right to Counsel

B

Under current statutory law, aliens have a right to counsel, at

9

their own expense, at deportation and removal hearings. See 8 U.S.C.

10 § 1252(b). The government argues that Congress policy decision on

11

this issue is dispositive. However, it is axiomatic that Congress is

12 not the arbiter of what process is due under the Constitution. The

13 Ninth Circuit has shown little hesitation in considering whether to

14 strike down portions of the immigration laws or the INS' policies and

15

procedures as violative of Constitutional rights. See Kim if Ziolar,

15 276 F.3d 523, 528 (9th Cir. 2002) (questioning whether portion of INA

1?

permitting no-bail detention of certain classes of aliens is facially

18

unconstitutional)

Varpas-Garcia V INS 287 F.3d 882, 886 (9th Cir.

19

2002) (holding that BIA notice of appeal form "is so misleading that

20 it can result in a denial of due process to the alien."); a also

21

nkowski-Burczvk v INS No. 01-2353, slip op. at S (2d Cir. May 29,

22

2002) (portion of INA treating permanent legal resident aliens

23

("PLRs") and non-PLRs differently did not violate equal protection).

24

Thus, the fact that Congress has conferred upon aliens the

25

"privilege" of retaining counsel, Acewicz v I.N 984 F.2d 1056,

26

1062 (9th Cir. 1993), is not dispositive of the constitutional issue

ORDER GRANTING MOTION To DISMISS - 11

1 argued by the plaintiff.

2

2. The Plaintiff's Due Process Claim

3

The Ninth Circuit has held that in addition to being a statutory

4 right, an alien's right to counsel is required by the Due Process

S Clause of the Fifth Amendment. Castro-Cortez v INS 239 F.3d 1037,

6 1049 (9th Cir. 2001) ("Fundamental to due process is the right to 7 counsel, and we have previously held that, in deportation hearings,

8 aliens have the 'right to obtain counsel of their choice at their own expense.'") (cxuoting Orantes-Hernandez v Thornburgh 919 F.2d 549,

10 554 (9th dr. 2990)); United States v Lara-Aceves 183 F.3d 1007,

11 1 1011 (9th Cir. 1999), cert. denied 528 U.S. 1095, 120 S.Ct. 836

12 (2000), overruled on other grounds United States v

13 Rivera-sanchez 247 F.3d 905 (9th Cir. 2001) ( band; Acewicz 984

14 I F.2d at 1062. The Court of Appeals has characterized an alien's 15 right to counsel as "fundamental." Orantes-Flernandez 919 F.2d at

15 i 554.

17

However, the law in this Circuit is clear that aliens have no

18 right to appointed counsel. "[CJourts have uniformly held in this 19 circuit and elsewhere that in light of the non-criminal nature of

20 both the proceedings and the order which may be a result, that 21 respondents are not entitled to have counsel appointed at government 22 expense." United States v Gasca-Kraft 522 F.2d 149, 152 (9th dr.

23 1975) (abrogated on other grounds United states y Meridoza-LoPeZ

24 481 U.S. 828, 834, 107 S.Ct. 2148, 2153 (2987) (cruoted j United
a 25 States v Cerda-Pena 799 F.2d 1374, 1376 n. 2 (9th Cir. 1986));

26 Ijara-Aceves 183 F.3d at 1010; Martin-Mendoza v INS 499 F.2d 918,

ORDER GRANTING MOTION TO DISMISS - 12

922 (9th Cir. 1974) ; Burr v INS 350 F.2d 87 (9th dir.), cert.

2 denied 383 U.S. 915, 86 S. Ct. 905 (1965) ; Perez-Funez V INS 611

F. Supp. 990, 1004 (C.D. Cal. 1984) (in suit alleging that INS

4 coerced minors into accepting voluntary removal, granting partial

injunction keeping alien minors from being deported and certifying

class but denying request to appoint counsel for minors) .

As discussed above, the plaintiff's task is to distinguish this

unfavorable precedent through either of two modes of attack:

9 demonstrating that the case law is not "good law, " or demonstrating

10 that the unique features of the sub-set of aliens that he represents

11 require a different result.

12

With regard to the first option, the plaintiff has not shown

13 that his claim may survive because the basis for the unfavorable

14 precedent is not "good law" in that it has been eroded or has become

15 anachronistic. The Ninth Circuit's rulings that there is no right to

16 appointed counsel in these circumstances is based in large part on

17 the importance of the distinction between deportation as a civil, and

proceeding.' 18 not a criminal,

See Lara-Aceves 183 F.Jd at 1010;

19

20

The law of other Circuits is in accord. See, e.g.

21

Burguez V INS 513 F.2d 751 (10th dir. 1975) ; Tupacyupangui-Maifl V INS, 447 F.2d 603 (7th Cir. 1971). Only one Court of Appeals

22 has ever ruled to the contrary. See Apuilera-Enrigpez v IN

516 F.2d 565, 568 (6th Cir. 1975) (holding that if "fundamental

23 fairness" requires, appointment of counsel for indigent alien may

be required by due process despite statutory bar)

24

For an overview of the civil/criminal distinction as

25 applied to immigration law, see Robert Pauw, A New Look At

Deportation As Punishment Why At Least Some of the

26 Constitution's Criminal Procedure Protections Must pply 52

Admin. L. Rev. 305 (2000)

ORDER GRANTING MOTION TO DISMISS - 13

Gasca-Kraft 522 F.2d at 152. It is true, as the plaintiff points

2 out, that this distinction has not held up as a bar to extension of

3 Sixth Amendment-type rights in certain other contexts. £e.., e.g.

4 Lassiter v Dept Social Servs. 452 U.S. 18, 21, 101 S.Ct, 2153,

5 2157 (1981) (holding that parental-rights termination proceeding,

6 although civil, may require appointment of counsel in an individual

7 case if indigent person's interests overcome "presumption that there

8 is no right to appointed counsel in the absence of at least a

9 potential deprivation of physical liberty."); Vitek v Jones 445

70 U.S. 480, 500, 200 S.Ct. 1254, 1267 (1980) (holding indigent prisoner

11 entitled to appointed counsel in civil mental health commitment

12 proceeding); In re Gault 387 U.S. 1, 41, 87 S.ct. 1428, 1451 (1967)

13

(concluding that delinquency proceedings, although considered civil,

14 nevertheless require appointed counsel because of the possibility

15 that juvenile's liberty may be curtailed as a result)

16

However, the Supreme Court and the Ninth Circuit continue to

17 rely on the civil/criminal distinction in the immigration context to

18 limit the process that is due in deportation and removal hearings.

19 "A deportation proceeding is a purely civil action to determine

20 eligibility to remain in this country, not to punish an unlawful

21 entry." INS v Lonez-Mendoza 468 U.S. 1032, 1038-39, 104 S.Ct.

22 3479, 3483 (1984) (holding that exclusionary rule does not apply to

23 deportation proceedings); Lara-Aceves 183 F.3d at 1010 ("Given the

24 civil nature of deportation proceedings, it is well established that

25 aliens in such proceedings have no constitutional right to counsel

26 under the Sixth Amendment."); United States v Yacoubian 24 F.3d 1,

ORDER GRANTING MOTION TO DISMISS - 14

10 (9th Cir. 1994) (holding that ex post facto and double jeopardy

2 protections do not apply to deportation proceedings); tJrbIna-Mauric±o

3 V INS 989 F.2d 1085, 1089 n. 7 (9th Cir. 1993) (concluding that

4 double jeopardy does not apply; "deportation is a civil action, not a 5 criminal punishment."); El Rescate Legal Serve., 959 F.2d at 751

C (finding INS interpretation of statute not to require full

7 translation of proceedings did not violate due process; deportation

"is a civil proceeding in which many of the protections afforded in the criminal context do not apply."); United States v Garay-Burgg

10 961 F. Supp. 1321, 1322-23 (D. Ariz. 1997) (holding that double

11 jeopardy does not apply to deportation proceedings; rejecting

12 argument that United States v Malper, 490 U.S. 435, 109 S.Ct. 1892

13

(1989), transformed deportation into punishment) ; p

also Zadvydas

14 v Davis 533 U.S. 678, 690, 121 SOt. 2491, 2492 (2001) (finding

15 that although proceedings to detain aliens who had been ordered

16 -removed, but whose deportations could not be effectuated, "are civil,

17 not criminal, and we assume that they are nonpunitive in nature,"

18 interpreting statute to permit indefinite detention would violate due

19 process); Reno V Amer.-Arab Anti-Discrimination Comm. 525 U.S. 471,

20 491, 119 SOt. 936 (1999) (concluding that removal is not

21 punishment) ; Ardestani v INS 502 U.S. 129, 137, 112 S.Ct. 515, 521

22

(1991) (determining that deportation proceedings are not "adversary

23 proceedings" covered by Administrative Procedure Act and thus

24 attorney's fees not reimbursable under Equal Access to Justice Act);

25 Briseno v INS 192 F.3d 1320, 1323 (9th Cir. 1999) (holding that

26 deportation is not punishment)

ORDER GRANTING MOTION TO DISMISS - 15

1

The plaintiff also appears to argue that recent case law has

2 expanded aliens' right to counsel to such a point that the

3 unfavorable precedent is simply anachronistic, and that declaring a

4 right to appointed counsel is the next logical step in the outward

expansion of due process protections for aliens. It is true that the

Ninth Circuit has taken a hard line on actions that interfere with an

7 alien's right to counsel. The court has gone so far as to question

S the INS' regulations and written policies,

, e.g. Castro-Cortez

9 239 F.3d at 1048 (holding that right to private counsel should apply 10 to aliens subject to reinstatement of deportation as well as other 11 aliens) ; Orantes-Hernandez 919 F2d at 566 (concluding that district

12 court's injunction regarding access to counsel was supported by 13 factual findings that INS practices "severely impeded class members

14 from communicating with counsel."), along with criticizing individual

15 applications of INS policies. See Singh v Waters 87 F-3d 345, 349

16

(9th dr. 1996) (finding that INS "effectively scuttled the right to

17 counsel guaranteed to Singh by statute" when it failed to inform his 18 counsel that it had found Singh's INS file); Castro-O'Ryan v INS

19 847 F.2d 2307, 1313 (9th dir. 1988) (holding that immigration judge's

20 failure to rule on alien's request for representation by counsel

21

"effectively denied" right to private counsel); Baires v INS 856

22 F.2d 89, 92 (9th Cir. 1988) (finding that immigration judge abused

23 discretion by denying continuance necessary for counsel to travel to

24 hearing); Rios-Berrios v INS 775 F.2d 859, 863 (9th Cit. 2985)

25 (concluding that immigration judge abused discretion and denied right

26 to counsel by not granting continuances to allow alien time to secure

ORDER GRANTING MOTION To DISMISS - 16

counsel, despite IN regulation allowing only one continuance for 2 that purpose)

3

Case law does not demonstrate, however, that the right to

4 counsel is on an inevitable path of outward expansion. The Court of 5 Appeals has been clear that the right to counsel is not absolute. 6 Thus, for example, a deportation order may be overturned on a showing

7 that the right to counsel was interfered with only if the alien can

8 show some degree of prejudice.

Acewicz 984 F.2d at 1062

S (holding right to counsel not violated when aliens could not

10 demonstrate that "counsel might have obtained a different result.");

11 United States v Villa-Fabela 882 F.2d 434, 438 (9th Cir. 1989)

12

("Infringements of the right to counsel are prejudicial [when

13 counsel] could have better marshaled specific facts or arguments in 14 presenting the petitioner's case."); but see Cerda-P, 799 F.2d at

15 1337 n. 3 (holding that "failure to adequately apprise an alien of 16 his or her right to representation" requires showing prejudice but 17 that "an outright refusal to allow an alien the opportunity to obtain 18 representation may be such an egregious violation of due process so

19 as not to require any further showing of prejudice."); Oarcia-Ouzman 20 v Reno 65 F. Supp.2d 1077, 1089 (N.D. Cal. 1999) (finding that

21 Ninth Circuit precedent on "whether prejudice must be shown where the 22 right to counsel is involved.. . points in both directions.") ; See

23 also Huicochea-Gomez v INS 237 F.3d 696, 699 (6th Cir. 2001) ("The

24 alien carries the burden of establishing that ineffective assistance 25 of counsel prejudiced him or denied him fundamental fairness in order

26 to prove that he has suffered a denial of due process.").

ORDER GRANTING MOTION To DISMISS - 17

With regard to the second method of attack, the plaintiff does 2 not succeed at distinguishing precedent -by providing a sufficient .3 legal basis for finding that due process requires more procedural 4 protection for juvenile aliens than adults.' The plaintiff points 5 out that children have been granted the right to appointed counsel in 6 proceedings that are themselves civil because of their special 7 vulnerabilities. See In re Gault 387 U.S. 1, 36-37, 87 S.Ct. 1428

5 (1967) (holding that needs of children require representation by

9 counsel in juvenile adjudications that can result in confinement)

10 Kent v United States 383 U.S. 541, 557- 62, 86 S.Ct. 1045 (1966)

"11

(finding a right to appointed counsel in proceedings to waive

12 juvenile court jurisdiction) ; e also Haley v Ohio 332 U_ S. 596,

13 600, 68 S.Ct. 302, 92 L.Ed. 224 (1948) (stressing a minor's need for

14 "counsel and support if he is not to become the victim first of fear,

15 then of panic' during interrogation).'

16

17

6 For academic treatments of this issue see Note, Voice of

Justice Promoting Fairness Through Appointed Counsel for

15 Immiorant Children 17 N.Y.L. Sch. J. Hum. Rts. 1105 (2001) and

Beth J. Werlin, Renewing the Call Immigrants's Right to

19 Appointed Counsel in Deportation Proceedings 20 B.C. Third World

L. J. 393 (2000)
20

21

Congress has also created a right to representation for children in some non-criminal proceedings. £ Catherine J.

22 Ross, From Vulnerability to Voice : Ant~ointincr Counsel for Children in Civil Litigation 64 Fordharn L. Rev. 1571, 1575

23 (1600) (noting that the Child Abuse Prevention and Treatment Act,

42 U.S;C. §S 5101-5118, "requir[es] appointment of a guardian ad

24 litem for abused or neglected children in judicial

proceedings."). ,In addition, some states have created statutory

25

rights to counsel for children in certain substantive categories

of civil litigation, such as custody proceedings,'

. Federal

26

law also provides for the appointment of counsel by the court for

indigent civil litigants (usually prisoners) if certain criteria

ORDER GRANTING MOTION TO DISMISS - 18

The Court assumes that the needs of juvenile aliens are greater

than those of alien adults. The plaintiff has made a very convincing

3

argument that that is true.' However, that is not the key issue

4 here. The Ninth Circuit precedent referred to above rejecting a due

5 process right to appointed counsel is based not on the concept that

6 adult aliens can effectively participate in INS proceedings without

7 the assistance of counsel, but on the civil nature of the INS

S proceedings themselves. See, e.g. Lara-Aceves 183 F.3d at 1010.

9 Interrelated with the civil characterization of the proceedings is 10 the observation that the interest implicated is not the deprivation 11 of physical liberty.9 See Gasca-Kraft 522 F.2d at 152 (finding no

12

13

are met. See 25 U.S.C. § 1915(d); United States IT. $292,888.04 in 15.5 Currency 54 F.3d 564, 569 (9th Cir. 1995).

14

The Court notes, however, that the Supreme Court in Reno

15 V Flares, 507 U.S. 292, 308-09, 113 S.Ct. 1439, 1450-51 (1993),

specifically rejected an argument that the vulnerabilities of

16 juvenile aliens require a special degree of procedural

protection. In Flores the Court denied the plaintiff's claim

17 that as a matter of procedural due process that an immigration

judge automatically review the INS' initial custody

18 determination. Id. The Court held that simply giving juvenile

aliens the right to request such a review, and to revoke their 19 waiver of the right, was sufficient; "it has not been shown that

20

all of them are too young or too ignorant to exercise that right when the form asking them to assert or waive it is presented."

21 Flores 507 U.S. at 309, 113 S.Ct. at 1451 (noting that the Court

has upheld juvenile waivers of the Fifth-Amendment right to

22 counsel in criminal proceedings)

23

Of course, a portion of the interest-deprivation that the

plaintiff alleges is the physical liberty of those indigent

24 juveniles who cannot secure their release on bond without the

expertise of an attorney. This aspect of an alien's interest has

25

been recognized as Constitutionally "civil" nature of the confinement.

significant despite
e Zadadas 533

the
u.s.

at

26 696, 121 S.Ct. at 2502 (aliens' liberty interest 'is, at the

least, strong enough" to raise question about whether indefinite

ORDER GRANTING MOTION TO DTP-MISS - 19

right to appointed counsel because of the non-criminal nature of

2 proceedings and 'the order which may be a result."). Therefore, the

3

case law cited by the plaintiff is unhelpful; all of these cases

4

involved a proceeding that was a first step in potentially depriving

5

a juvenile of physical liberty for an extended period. Faced with

6

unfavorable precedent, the key question here is not whether the needs

7

of juvenile aliens are different than those of adults, but whether

a

the interests of juvenile aliens in their deportation proceedings are

9 different.

10

Although the Supreme Court has never precisely described the

11

nature of an aliens interest in deportation proceedings, the Court

12 has implied that it is not of great Constitutional significance in

13

cases that found the interest insufficiently compelling when balanced

14 against the governments interests.

e.g. Arab-Amer. Comm. 525

15 U.S at 491, 119 S.Ct. at 947 (holding aliens' interests insufficient

16

to warrant a right of action against government for selective

17 prosecution; "deportation is necessary in order to bring to an end an

18

ongoing violation of United States law."); Lopez-Mendoza 468 U.S. at

19

1049-50, 104 S.Ct. at 3488-89 (alien's interest did not outweigh

20 government's interest in expedited proceedings to justify application

21

of exclusionary rule). The plaintiff has not pointed to any case

22

that has held that a juvenile alien's interests are different from

23 those of an adult. Indeed, if the court were to undertake an

24 analysis of whether a juvenile's "liberty" interest in not being

25

26

detention would violate Fourth Amendment). However, the plaintiff claims a much broader interest, and the Court addresses

the plaintiff's claim in that context.

ORDER GRANTING MOTION TO DISMISS - 20

erroneously deported is different than that of an adult, it is

2 unclear what the result would be. The plaintiff has referred the 3 Court to only one case finding a right to appointed counsel in

4 proceedings that did not in substance implicate physical liberty.

5 See Lassiter, 452 U.S. at 26-27, 101 S.Ct. at 2158-59 (finding right

6 to appointed counsel in parental-rights-termination proceedings) 7 Using that Supreme Court precedent as a yard-stick, the interest of a

unaccompanied juvenile like the plaintiff in an accurate proceeding

is potentially of less Constitutional significance than those of an 10 adult alien who, in many cases, is faced with being separated from

11 his or her children. See Lassiter, 452 U.S. at 27, 101 S.Ct. at

12 2159-GO (parents' interest in retaining "companionship, care, 13 custody, and management of his or her children" is "a commanding

14

one. 11) .

15

Based on the discussion above, the Court determines that the

plaintiff has not distinguished the interests of juveniles from those of adults generally so as to demonstrate that the Ninth Circuits holding that aliens have no right to appointed counsel should not bar 19 his claim.

20

The task of establishing a due process right for juveniles in

21 proceedings that do not at their core threaten personal liberty is

22 difficult, and is made more difficult here by the way that courts

23 have consistently characterized immigration proceedings, and

24 unfavorable precedent. If this issue had not already been addressed 25 in a general sense by a higher court, the plaintiff's argument that

26 the special needs and dilemmas faced by juvenile aliens require more

ORDER GRANTING MOTION To DISMISS - 21

procedural protection than is now provided would have great force. 2 However, this Court is not free to ignore or overrule Ninth Circuit

3 precedent. Mr. Gonzalez has not demonstrated that the fundamental

4 civil/criminal dichotomy that forms the basis for Ninth Circuit case 5 law on this issue is no longer a valid analytical model or that the

6 interests of juvenile aliens undermines the reasoning of those prior 7 opinions when applied to children.

S

CONCLUSION

9

Although the plaintiff's claim is not moot, and the plaintiff

10 need not procedurally exhaust his claim, the plaintiff has failed to

11 demonstrate that his legal position, contrary to precedent as it is, 12 "lies in the natural line of the law's development." Jcirksey 168 13 F.3d at 1041-42. The Court determines that even taking all of the

14 complaint's factual allegations as true and drawing all reasonable

15 inferences in his favor the plaintiff has not set forth a cognizable

16 legal claim, and can prove no set of facts that would warrant relief, 17 and thus has failed to state a claim on which relief can be granted.

18 Therefore, the government's Rule 12(b) (6) motion to dismiss is

19 granted.

20

LEAVE TO AMEND

21

The "key question" in determining whether leave to amend should

22 be granted after a successful Rule 12(b) (6) motion "is whether [the

23 plaintiff] could [] savefl his complaint through further amendment." 24 Simon v Value Behavioral Health Inc. 208 F.3d 1073, 1084 (9th Cir.

25 2001); Schreiber Distributing Co. v Serv-Well Furniture Co. 806

26 F.2d 1393, 1401 (9th Cir. 1986) (plaintiff should be denied

ORDER GRANTING MOTION TO DISMISS - 22

opportunity to amend only if "allegations or other facts consistent

2 with the challenged pleading could not possibly cure the defect. It) -

3

Here, it is clear that amendment would be futile because the

4 plaintiff could prove no set of facts that would save his claim. The

5 Court has assumed throughout that the plaintiff is, as the complaint 6 describes, the most sympathetic kind of plaintiff for this claim. 7 That is, the Court has taken as true the complaint's allegations that B he speaks and understands no English; is unfamiliar with the criminal

legal system, the immigration system and legal procedures generally; 10 is not unusually mature for his age; has been detained at Martin Hall

11 with (and treated as) a juvenile criminal offender; and that he did

12 not understand what was happening when he agreed to voluntary

13 departure or attempted to secure his release on bond pending his

14 deportation-

15

if the Court had concluded that it was appropriate to examine

16 whether due process required that counsel be appointed under the 17 factors elucidated in Matthews v Eldridqe 424 U.S. 319, 335, 96

18 s_ct. 893, 903 (1976) and In re Gault 387 U_s. 1, 36 -37, 87 S.Ct.

19 1428 (1967), these features may have proven determinative. However, 20 the Court does not reach that analysis. The Court is bound by the

21 Ninth Circuit's precedent on this issue, and the plaintiff has failed 22 to demonstrate that this precedent should be ignored even under the

23 most compelling of facts. Therefore, leave to amend is denied, and

24 the dismissal will be with prejudice.

25

IT IS HEREBY ORDERED THAT:

25

1. The defendant's motion to dismiss (Ct. Rec. 47) is GRANTED.

ORDER GRANTING MOTION TO DISMISS - 23

This action is DISMISSED WITH PREJUDICE.

a

2. The plaintiff's motion for class certification (Ct. Rec.

3 4) is DENIED AS MOOT.

4

3. The "house-keeping' motions discussed at the hearing (Ct.

S Recs. 14, 18, 19, 45, and 60) are GRANTED.

6

4. The defendants motion to vacate (Ct. Rec. 47) is DENIED AS

7 HOOT.

S

IT IS SO ORDERED. The District Court Executive is hereby

9 directed to enter this order, furnish copies to counsel, and close

10 the file.

11

DATED this

day of June, 2002.

12

13

Fred Van Sickle

Chief United States District Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER GRANTING NOTION TO DISMISS - 24

 
 CM/ECF LIVE - U.S. District Court:waed - Docket Report

Page 1 of 9

CLOSED, JURY, LC02
Eastern District of Washington U.S. District Court (Spokane) CIVIL DOCKET FOR CASE #: 2:02-cv-00066-FVS

Machado, et al v. Ashcroft, et al Assigned to: Judge Fred Van Sickle Demand: $0 Cause: 28:1331 Fed. Question
Plaintiff
Marcos Gonzalez Machado by and through David Groesbeck, the Proposed Guardian ad Litem, and all others similarly situated

Date Filed: 02/19/2002 Date Terminated: 06/18/2002 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant
represented by Atieno C Odhiambo Columbia Legal Services 101 Yesler Way Suite 300 Seattle, WA 98104 206-464-1155 Email: Atieno.Odhiambo@Columbialegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marie Higuera Gibbs Houston Pauw 1000 Second Avenue Suite 1600 Seattle, WA 98104 206-682-1080 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H Adams Northwest Immigrant Rights Project - SEA
909 Eighth Avenue Seattle, WA 98104 206-957-8611 Email: matt@nwirp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L Isserlis Winston & Cashatt 601 West Riverside Avenue Suite 1900 Spokane, WA 99201 509-838-6131

https://ecf.waed.uscourts.gov/cgi-bin/DktRpt.pl?743450996980478-L_353_0-1

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CM/ECF LIVE - U.S. District Court:waed - Docket Report

Page 2 of 9

Plaintiff
David Groesbeck Proposed Guardian ad Litem

Email: nli@winstoncashatt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia J Arthur Columbia Legal Services - SEA 101 Yesler Way Suite 300 Seattle, WA 98104 206-464-0838 Fax: 12063823386 Email: pat.arthur@columbialegal.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rhonda Brownstein Southern Proverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8200 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rohit Nepal Southern Proverty Law Center 400 Washington Avenue Montgomery, AL 36104 334-956-8200 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Atieno C Odhiambo (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew H Adams (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L Isserlis (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patricia J Arthur (See above for address) LEAD ATTORNEY

https://ecf.waed.uscourts.gov/cgi-bin/DktRpt.pl?743450996980478-L_353_0-1

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CM/ECF LIVE - U.S. District Court:waed - Docket Report

Page 3 of 9

V. Defendant John - Ashcroft Attorney General
Defendant Robert - Coleman District Director, Seattle INS District Office
Defendant Immigration and Naturalization Service

ATTORNEY TO BE NOTICED
Rhonda Brownstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Rohit Nepal (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle E Gorden U S Department of Justice - DC 950 Pennsylvania Avenue NW Washington, DC 20530-0001 202-514-2000 LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Herbert Beatty U S Attorney's Office - SPO 920 W Riverside Suite 300 P O Box 1494 Spokane, WA 99210-1494 509-353-2767 Fax: 4623866 Email: USAWAE.WBeattyECF@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle E Gorden (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Herbert Beatty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Michelle E Gorden (See above for address)

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Date Filed 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002 02/19/2002

LEAD ATTORNEY ATTORNEY TO BE NOTICED
William Herbert Beatty (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

#

Docket Text

1 RECEIVED Complaint - Receipt #none (IFP) (CP) (Entered: 02/20/2002)

3 COMPLAINT (Summons(es) issued) Fee-status: ifp Receipt #: ifp (CP) (Entered: 02/20/2002)

4 MOTION by plaintiffs for Class Certification (Class Action) (CP) (Entered: 02/20/2002)

5 Memorandum by plaintiffs in support of Class Certification (Class Action) [4-1] (CP) (Entered: 02/20/2002)

6 Declaration of Rhonda Brownstein in Support of Plaintiffs' Motion for Class Certification (Class Action) [4-1] (CP) (Entered: 02/20/2002)

7 Declaration of Nancy L Isserlis in Support of Plaintiffs' Motion for Class Certification (Class Action) [4-1] (CP) (Entered: 02/20/2002)

8 Declaration of Patricia J Arthur in Support of Plaintiffs' Motion for Class Certification (Class Action) [4-1] (CP) (Entered: 02/20/2002)

9 Declaration of Matt Adams in Support of Plaintiffs' Motion for Class Certification (Class Action) [4-1] (CP) (Entered: 02/20/2002)

10 Declaration of Atieno Odhiambo in Support of Plaintiffs' Motion for Class Certification (Class Action) [4-1] (CP) (Entered: 02/20/2002)

11 Notice by plaintiffs of hearing setting motion for Class Certification (Class Action) [4-1] (w/o oral argument 3/25/02 ) (CP) (Entered: 02/20/2002)

12 MOTION by plaintiffs to File Overlength Brief (CP) (Entered: 02/20/2002)

13 Notice by plaintiffs of hearing on Motion for Leave to File Overlength Brief LR 7.1(f) and (h) [12-1] (w/o oral argument 3/25/02 ) (CP) (Entered: 02/20/2002)

14 MOTION by plaintiffs for appointment of Guardian ad Litem (LR 17.1(a)) (CP) (Entered: 02/20/2002)

15 Declaration of Atieno Odhiambo in Support of Motion for appointment of Guardian ad Litem (LR 17.1(a)) [14-1] (CP) (Entered: 02/20/2002)

16 Notice by plaintiffs of hearing setting motion for appointment of Guardian ad Litem (LR 17.1(a); LR 7.1(h)) [14-1] (w/o oral argument 3/25/02 ) (CP) (Entered: 02/20/2002)

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02/19/2002 02/20/2002 02/20/2002 02/20/2002 02/20/2002 02/25/2002 02/26/2002 02/26/2002 02/26/2002 02/26/2002 02/26/2002 02/26/2002 02/26/2002 02/26/2002 02/26/2002 02/26/2002

17 Notice by plaintiffs of hearing on Motion for Permission to Participate Pro Hac Vice LR 83.2(c) Without Oral Argument 3/25/02 (CP) Modified on 02/22/2002 (Entered: 02/20/2002)
2 ORDER TO PROCEED IN FORMA PAUPERIS by Magistrate Judge Cynthia Imbrogno (nunc pro tunc 2/19/02)(cc: all counsel) (CP) Modified on 02/22/2002 (Entered: 02/20/2002)
18 MOTION by plaintiffs to Participate pro hac vice (re: atty Rohit Nepal) (CP) (Entered: 02/20/2002)
19 MOTION by plaintiffs to Participate pro hac vice (re: Rhonda Brownstein) (CP) (Entered: 02/20/2002)
20 Declaration of Rohit Nepal in Support of Plaintiffs' Motion for Class Certification (Class Action) [4-1] (CP) (Entered: 02/20/2002)
Law Clerk assigned to case is 02 (PW) (Entered: 02/25/2002)
21 MOTION by plaintiffs Marcos Gonzalez Machado & David Groesbeck for temporary restraining order and for preliminary injunction (SAP) (Entered: 02/27/2002)
22 Memorandum by plaintiffs Marcos Gonzalez Machado, David Groesbeck in support of motion for temporary restraining order [21-1], motion for preliminary injunction [21-2] (SAP) (Entered: 02/27/2002)
23 Declaration of Daniel Smith by plaintiffs re motion for temporary restraining order [21-1], re motion for preliminary injunction [21-2] (SAP) (Entered: 02/27/2002)
24 Declaration of Margaret H. Taylor by plaintiffs re motion for temporary restraining order [21-1], re motion for preliminary injunction [21-2] (SAP) (Entered: 02/27/2002)
25 Declaration of Ann E. Benson by plaintiffs re motion for temporary restraining order [21-1], re motion for preliminary injunction [21-2] (SAP) (Entered: 02/27/2002)
26 Declaration of Marcos Gonzalez Machado by plaintiffs re motion for temporary restraining order [21-1], re motion for preliminary injunction [21-2] (SAP) (Entered: 02/27/2002)
27 Notice by plaintiffs of hearing setting motion for temporary restraining order [21-1] (w/o oral argument 2/26/02 ) (SAP) (Entered: 02/27/2002)
28 Notice by plaintiffs of hearing setting motion for preliminary injunction [21-2] (w/o oral argument 3/8/02 ) (SAP) (Entered: 02/27/2002)
29 MOTION by plaintiffs Marcos Gonzalez Machado, David Groesbeck for leave to file overlength brief (SAP) (Entered: 02/27/2002)
30 Notice by plaintiffs of hearing setting motion for leave to file overlength brief [29-1] (w/o oral argument 3/29/02 ) (SAP) (Entered: 02/27/2002)

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02/26/2002 02/27/2002
02/27/2002
02/28/2002 03/05/2002 03/05/2002
03/07/2002 03/12/2002 03/20/2002
03/20/2002 03/21/2002 03/22/2002

End file #1 (docs 1-24) (SAP) (Entered: 03/07/2002)
31 TEMPORARY RESTRAINING ORDER by Chief Judge Fred L. Van Sickle: INS shall not remove pltf Machado from USA prior to 3/7/02; telephonic hrg set for 10:00 3/5/02 Spokane, WA to determine if this order to remain in effect w/pltfs to initiate call; pltfs do not need to post a bond at this time (cc: all counsel via facsimile & mail) (SAP) (Entered: 02/27/2002)
32 AMENDED TEMPORARY RESTRAINING ORDER by Chief Judge Fred L. Van Sickle: pltfs' mtn to file an overlength brief [12-1] is granted; pltfs' mtn for TRO [21-1] is granted in part & denied in part; INS shall not remove pltf Machado from USA prior to 3/7/02; telephonic hrg set 3/5/02 @ 10:00 w/pltfs to initiate call; pltfs do not need to post a bond at this time (cc: all counsel via facsimile & regular mail) (SAP) (Entered: 02/28/2002)
(PW) (Entered: 02/28/2002)
33 MINUTES: Telephonic TRO hearing held before Chief Judge Fred L. Van Sickle Hrg Location: Spokane; Topper Baker court reporter (SAP) (Entered: 03/05/2002)
34 ORDER by Chief Judge Fred L. Van Sickle granting motion for leave to file overlength brief [29-1], granted in part and denied in part [21-2] motion for preliminary injunction, INS shall not remove Marcos Gonzalez Machado from US prior to end of case or upon further order of the court; INS shall not conduct hrgs/proceedings re removal/deportation except upon order of the court; INS to permit access by Machado's counsel to all records; if parties have not reached agr by 3/6/02 12:00 pm re release of Machado from INS custody, then court appoints Marie Higuera to represent Machado for limited purpose of securing his release from INS custody w/atty's fees to be paid by dfts; bond requirement by pltf is waived; court to set expeditied schedling conf (cc: all counsel & atty Higuera via fax & mail) (SAP) Modified on 03/07/2002 (Entered: 03/07/2002)
35 NOTICE of ATTORNEY APPEARANCE for defendant Immigration and Nat; Atty William Herbert Beatty appearing (SAP) (Entered: 03/08/2002)
Status Conference Notice ;telephonic status conf 8:30 4/19/02 Spokane, WA (PW) (Entered: 03/12/2002)
36 OBJECTION by Federal defendants' to plaintiff's motions: to motion to Participate pro hac vice (re: Rhonda Brownstein) [19-1], motion to Participate pro hac vice (re: atty Rohit Nepal) [18-1], motion for appointment of Guardian ad Litem (LR 17.1(a)) [14-1], motion for Class (Class Action) [4-1] (SAP) (Entered: 03/20/2002)
37 FIRST AMENDED COMPLAINT for Injunctive and Declaratory Relief (SAP) (Entered: 03/20/2002)
38 REPORTER'S TRANSCRIPT FILED. CR : Topper S Baker Judge Van Sickle City : Spokane, WA For date of 3/5/02 Type of Proceeding: Telephonic Hrg on TRO (CP) (Entered: 03/21/2002)
39 NOTICE OF ADDRESS CORRECTION by plaintiff (CP) (Entered: 03/22/2002)

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03/25/2002 03/27/2002
03/29/2002 04/08/2002 04/16/2002 04/19/2002 04/19/2002 04/19/2002 04/19/2002
04/19/2002
04/19/2002 04/19/2002 04/24/2002 04/29/2002

40 NOTICE of ATTORNEY APPEARANCE for defendant John Ashcroft, defendant Robert Coleman, defendant Immigration and Nat; Atty Michelle E Gorden appearing (SAP) (Entered: 03/25/2002)
41 ORDER re Motions by Chief Judge Fred L. Van Sickle; parties to jointly file by 4/17/02 a briefing schedule for all pending and anticipated motions; court will set a date for motions to be re-noted at status conf on 4/19/02; 3/25/02 is sticken for motion for appointment of Guardian ad Litem (LR 17.1(a)) [14-1] & motion for Class Certification (Class Action) [4-1] (cc: all counsel) (SAP) (Entered: 03/27/2002)
42 SUMMONS/RETURN OF SERVICE executed upon defendant John - Ashcroft, defendant Robert - Coleman (CP) (Entered: 03/29/2002)
43 JOINT Status Conference Certificate filed (SAP) (Entered: 04/08/2002)
44 SUBMISSION re Discovery Plan & Initial Disclosure Deadlines by plaintiffs (SAP) (Entered: 04/16/2002)
45 MOTION by defendants John Ashcroft, Robert Coleman & Immigration and Nat for leave to file overlength brief (SAP) (Entered: 04/22/2002)
46 Memorandum by defendants John Ashcroft, Robert Coleman & Immigration and Nat in support of motion for leave to file overlength brief [45-1] (SAP) (Entered: 04/22/2002)
47 MOTION by defendants John Ashcroft, Robert Coleman & Immigration and Nat to dismiss the complaint and to vacate the court's 3/5/02 order granting a preliminary injunction (SAP) (Entered: 04/22/2002)
48 Memorandum by defendants John Ashcroft, Robert Coleman & Immigration and Nat in support of motion to dismiss the complaint [47-1] & motion to vacate the court's 3/5/02 order granting a preliminary injunction [47-2] (SAP) (Entered: 04/22/2002)
49 Notice by defendants John Ashcroft, Robert Coleman & Immigration and Nat of hearing setting motion for leave to file overlength brief [45-1] with oral argument 1:30 6/6/02 Spokane, WA, setting motion to dismiss the complaint [47-1] with oral argument 1:30 6/6/02 Spokane, WA, setting motion to vacate the court's 3/5/02 order granting a preliminary injunction [47-2] with oral argument 1:30 6/6/02 Spokane, WA (SAP) (Entered: 04/22/2002)
50 Certificate of service by defendants John Ashcroft, Robert Coleman & Immigration and Nat of: docs #45-49 (SAP) (Entered: 04/22/2002)
51 MINUTES: Status/Scheduling Conference hearing held before Chief Judge Fred L. Van Sickle Hrg Location: Spokane; Mark Snover court reporter (SAP) (Entered: 04/22/2002)
52 Notice by plaintiff of hearing setting motion for Class Certification (Class Action) [4-1]; oral argument 1:30 6/6/02 Spokane, WA (LE) (Entered: 04/24/2002)
53 Scheduling Conference Order by Chief Judge Fred L. Van Sickle Disp mtn ddl:

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05/07/2002 05/07/2002 05/07/2002 05/07/2002
05/07/2002
05/17/2002 05/20/2002 05/20/2002 05/20/2002 05/20/2002 05/20/2002 05/31/2002 05/31/2002 06/06/2002

10/7/02; Mtn in limine ddl: 10/28/02 ; In-court hearing set 1:30 6/6/02 Spokane, WA ;discovery to be complete 9/30/02 ;proposed PTO due 1/2/03; Pretrial Conf set 8:30 1/7/03 Spokane, WA ; Non-Jury Trial set 9:00 1/27/03 Spokane, WA (cc:all counsel) (CP) Modified on 04/30/2002 (Entered: 04/29/2002)
54 MOTION by defendant John Ashcroft, defendant Robert Coleman, defendant Immigration and Nat for an extension of time to file a response to plaintiff's motion for class certification (SAP) (Entered: 05/07/2002)
55 Declaration of Marcos Gonzalez Machado by plaintiffs Marcos Gonzalez Machado, David Groesbeck (SAP) (Entered: 05/07/2002)
56 PROPOSED RECEIVED Stipulation and Order vacating stay of removal proceedings and stay of removal re: submitted by plaintiffs Marcos Gonzalez Machado & David Groesbeck (SAP) (Entered: 05/07/2002)
57 Stipulation and ORDER Vacating Stay of Removal Proceedings and Stay of Removal by Chief Judge Fred L. Van Sickle re order of 3/5/02 [34-1] both court's stay of pltf's administrative proceedings & stay of his removal from US are VACATED (cc: faxed to all counsel) (SAP) (Entered: 05/08/2002)
58 ORDER Extending Briefing Deadlines for Motion to Certify Class by Chief Judge Fred L. Van Sickle; dft's motion for an extension of time [54-1] is GRANTED IN PART; govt's resp ddl 5/17/02; pltf's rply ddl 5/31/02 (cc: all counsel) (SAP) (Entered: 05/08/2002)
59 Memorandum by defendant John - Ashcroft, defendant Robert - Coleman, defendant Immigration and Nat in opposition to motion for Class Certification (Class Action) [4-1] (SAP) (Entered: 05/17/2002)
60 MOTION by plaintiff to file overlength brief (RF) (Entered: 05/20/2002)
61 Notice of Hearing by plaintiff setting motion to file overlength brief [60-1] (w/o oral argument 6/6/02 ) (RF) (Entered: 05/20/2002)
62 Declaration of Nancy L Isserlis by plaintiff in support of motion to file overlength brief [60-1] (RF) (Entered: 05/20/2002)
63 Plaintiffs' opposition to Defendants' motion to dismiss the complaint [47-1] (RF) (Entered: 05/20/2002)
64 Appendix to plaintiffs' opposition to Defendants' motion to dismiss [63-1] (Exhibits 1-7) (RF) (Entered: 05/20/2002)
65 Reply by plaintiffs Marcos Gonzalez Machado, David Groesbeck re memorandum in opposition to class certification [59-1] (SAP) (Entered: 06/03/2002)
66 Reply by defendants to plaintiff's memorandum in opposition to defendants' motion to dismiss the complaint and vacate the court's 3/5/02 order granting a preliminary injunction [63-1] (SAP) (Entered: 06/03/2002)
67 MINUTES: Motion hearing held before Chief Judge Fred L. Van Sickle Hrg Location: Spokane; Mark Snover court reporter (SAP) (Entered: 06/07/2002)

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06/17/2002 06/18/2002
07/15/2002 07/29/2002 07/29/2002 08/13/2002 08/20/2002 08/20/2002

68 MINUTES: Telephonic motion hearing held before Chief Judge Fred L. Van Sickle Hrg Location: Spokane; Mark Snover court reporter (SAP) (Entered: 06/18/2002)
69 ORDER Granting Motion to Dismiss by Chief Judge Fred L. Van Sickle; dft's mtn to dismiss the complaint [47-1] is GRANTED; this action is DISMISSED WITH PREJUDICE; pltf's mtn for Class Certification (Class Action) [4-1] is DENIED AS MOOT; granting motion for appointment of Guardian ad Litem (LR 17.1(a)) [14-1], granting motion to Participate pro hac vice (re: atty Nepal) [18-1], granting motion to Participate pro hac vice (re: Rhonda Brownstein) [191], granting motion for leave to file overlength brief [45-1], granting motion to file overlength brief [60-1], dft's mtn to vacate [47-2] is DENIED AS MOOT; DCE to close file; CrOB-188-90; case terminated (cc: all counsel) (SAP) (Entered: 06/18/2002)
70 Application by plaintiff for attorney fees (CP) (Entered: 07/15/2002)
71 MOTION by defendant to dissolve the preliminary injunction granting appointment of counsel at government expense & ... (SAP) (Entered: 07/30/2002)
71 ... & Memorandum by defendant in opposition to application motion for attorney fees [70-1] (SAP) (Entered: 07/30/2002)
72 BRIEF in Support of Fees by plaintiff Marcos Gonzalez Machado (SAP) (Entered: 08/14/2002)
FAXED/MAILED order re atty's fees to all counsel (SAP) (Entered: 08/20/2002)
73 ORDER by Chief Judge Fred L. Van Sickle granting motion to dissolve the preliminary injunction granting appointment of counsel at government expense [71-1]; atty Marie Higuera is appointed counsel retroactively under 18 USC 3006A(a)(2); atty Higuera is to submit an appl for pyment under CJA; DCE to process appl for atty's fees under CJA (cc: all counsel & atty Higuera w/CJA form) (SAP) (Entered: 08/21/2002)

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