Mengesha v. Ashcroft

US Court of Appeals for the Ninth Circuit

2003 US App. LEXIS 24923

Petitioners Afework Mengesha and Abebech Sisay petitioned and were granted review of a Board of Immigration Appeals order denying their motion to reconsider for abuse of discretion.

The Ninth Circuit Court of Appeals held that aliens in deportation hearings are entitled to the Fifth Amendment right to due process.  The Fifth Amendment requires, among other rights, the right that notice of deportation proceedings be reasonably calculated to reach the alien.  The government in this case, therefore, had the duty to provide notice to the alien’s last known address.  Once the plaintiff in a case provides such notice, there is a rebuttable presumption that the notice reached the alien.  The court held in Salta v. INS that the presumption may be rebutted “where a petitioner actually initiates a proceeding to obtain a benefit, appears at an earlier hearing, and has no motive to avoid the hearing,” then the petitioner’s affidavit stating that he did not receive notice. 

The Ninth Circuit held that the petitioners had no motive to fail to appear or file a brief.  In fact, their failure to do so resulted in their appeal being dismissed.  As a result, the petition for review was granted, and the court reversed for an evidentiary hearing to resolve the issue of whether the petitioners received notice.

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Arizona v. Johnson

2003 US App. LEXIS 25298

No. 02-10285

9^th Circuit Court of Appeals

The United States Court of Appeals for the Ninth Circuit upheld the convictions of a US Border Patrol Agent charged with kidnapping and sexual assault of an illegal immigrant who was taken into custody after crossing the US-Mexico border.

After picking up a group of individuals who crossed the US-Mexico border illegally, the defendant instructed one female from El Salvador to get into his patrol car.  Johnson failed to announce that he was a male agent transporting a female alien, as was the necessary procedure. The female remained the car, eventually being driven to an isolated spot in the desert. Conflicting accounts are offered of the next encounter.  The female claimed that the defendant forced her to perform oral sex.  The defendant claimed that the actions were consensual.  Following the encounter, instead of driving the female back to the station where the defendant was assigned, he drove her close to the border crossing and told her which way she should go to cross the border.  A Mexican border official contacted the US Border Patrol, who determined from her statements and the testimony of other agents who were at the site when she was initially picked up that the defendant had been in contact with her.  When questioned, the defendant changed his story many times, only acknowledging “consensual” sexual relations when told that physical evidence of the encounter existed.

The defendant was charged with sexual assault and kidnapping.  He was convicted of both counts after a five-day jury trial and sentenced to concurrent prison terms of seven years for sexual assault and five years for kidnapping.  The Court of Appeals affirmed on all counts.

Among the issues upheld on appeal were that the district court (1) did not abuse its discretion in answering a question from the jury during its deliberations; (2) did not abuse its discretion in admitting testimony of prior consistent statements under Federal Rule of Evidence 801(d)(1)(B); (3) properly rejected a Sixth Amendment claim that the government had acted in bad faith in deporting aliens who might have been material witnesses; and (4) properly refused to dismiss the kidnapping charge as unsupported by the evidence.

On Issue 3, the defendant must present evidence to show (1) that the government departed from its usual procedures, or (2) that it purposely deported the witnesses to gain an unfair advantage at trial.  However, the Court held that this claim was not proven since the female’s companions were returned to Mexico before anyone in the government was aware of the sexual encounter between the defendant and the female.

On Issue 4, the Court determined that while the defendant had legal authority to detain the female when she was first apprehended, he had no legal authority to continue to confine her in the back of his patrol car, to drive her to a remote spot in the desert, to handcuff her while she performed oral sex, and then to take her to the Naco border crossing roughly twenty-five miles west of his ordinary duty station.