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Was the Supreme Court Decision In Arizona V. United States Reasonable?

by Leon Rosen

In light of the Supreme Court decision in Arizona v. United States, Mr. Leon Rosen, a lawyer practicing immigration law for fifty-eight years and counting argues in protestation of the provision that was upheld. 2B of S.B. 1070, commonly known as the "papers please" provision, requires state law enforcement officials to demand immigration papers from anyone whom they have stopped, detained, or arrested in the state and suspect to be in the country without authorization. The provision also requires the officials to check the immigration status with the federal government of all those whom they have arrested before they can be released.

Mr. Rosen gave the example of one of his cases, Ayala-Villenueva v. Holder. Wilsonis Ayala-Villanueva was brought into the country at the age of nine as a lawful permanent resident by his Salvadorian parents. Several years later, Mr. Ayala was convicted for stolen property amounting to $250 in the state of Nevada for which he faced one or more years in prison. During the trial, questions of his immigration status arose, by also initiating removal proceedings against him as an aggravated felon under 8 U.S.C 1227(a)(2)(A)(iii) and 8 U.S.C. 1101(a)(43)(G). Mr. Ayala claimed derivative citizenship which would render him irremovable.

In immigration court, the judge terminated the removal proceedings on three occasions as Mr. Ayala had proven his citizenship with sufficient evidence. However, after each dismissal by the judge, the DHS appealed to the Board of Immigration Appeals, who sustained the appeals of the DHS, thus remanding the proceedings back to the judge. On the third remanding from the Board of Immigration Appeals, the judge was advised not to terminate the proceedings if she was unable to present new and substantial evidence of Mr. Ayala's citizenship. The judge, with no such new evidence, was forced to comply and found that Mr. Ayala is a native and citizen of El Salvador and that he be removed as an aggravated felon. Mr. Ayala appealed; however, the Board of Immigration Appeals dismissed it. Therefore, Mr. Ayala petitioned for relief in the United States Court of Appeals, Ninth Circuit.

Under 321 (a) of the Immigration and Nationality Act as it then existed, provides that any child born out of wedlock and is not legitimated, born out of the country and is lawfully admitted into the country as a permanent resident, and is in the primary custody of a parent who has become a naturalized citizen prior to the child's eighteenth birthday qualifies as a derivative citizen. The problem for Mr. Ayala arises in regard to his legitimization by the establishment of his paternity.

Mr. Ayala's recognized father, his mother's husband was not married to his mother until after his birth, which shows him to be born out of wedlock. While this still does not create a problem, the marriage of his recognized father to his mother destroys Mr. Ayala's claim to derivative citizenship if the father is his biological father. In court, two copies and two translations of birth certificates were presented. Strikingly similar, the two certificates differed only in the birth record number, the location of Mr. Ayala's birth, and his father's name. While one shows his father to be Mr. Jose Humberto Ayala Gaitan - the man whom Mr. Ayala recognizes as his father, the other shows his father to be Jose Tiburcio Ayala Gaitan. The legitimization of birth, then, rested on the dismissal of one and the accreditation of the other.

The proceedings, due to the aforementioned dispute and the fact that the law requires cases with questioned citizenship to be decided in district courts, were transferred to the US District Court of Nevada. The case is now pending in the Ninth Circuit Court of the United States. On the eve of oral arguments in the district court, Mr. Rosen received two individual panicked telephone calls, one from the attorney for the DHS and the other for the attorney for the DOJ. Both requested Mr. Rosen that he stipulated to a termination of proceedings. The attorneys would consent to a finding of citizenship for Mr. Ayala but a 1053 day incarceration - as an aggravated felon for stolen property - would have to precede this recognition. The argument in regard to Mr. Ayala's citizenship, until that point, had been conducted despite the fact that it was clear that he had indeed acquired his citizenship. Until the eve of the oral argument in the district court, the government opposed the recognition, however. Despite all of the years of expertise of the two attorneys, the realization of Mr. Ayala's case was not had until the eve of the argument in court.

When the immigration judge, the DHS, the Board of Immigration Appeals, and a room full of experienced attorneys and officials, were unable to determine the immigration status of one man over the course of several years, we ask how it is possible for a single state law enforcement official to determine the immigration status of an individual during a traffic stop. How are we expecting the officers to know about derivative citizenship or any other complex structures? How are we allowing the disruption of potentially thousands of lives by a single traffic stop? It is unreasonable, even absurd, to think that justice will be served under these circumstances.

About The Author

Leon Rosen has practiced immigration law for 58 years. Mr. Rosen is also past National President of AILA, 1995 recipient of award for Promoting Excellence in the Practice of Immigration Law and has been member of AILA Board for 48 years.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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