U.S. v. Chacon

U.S. Court of Appeals for the Fifth Circuit

2004 U.S. App. LEXIS 2292

The Petitioner, Lee Arturo Chacon was convicted of possession with intent to distribute marijuana.  The Petitioner was arrested when a Border Patrol Agent boarded a bus the Petitioner was riding.  The Agent asked the Petitioner about his immigration status, then walked to the back of the bus.  While heading back to the front of the bus, the Agent noticed a bag under the Petitioner’s seat and stopped and asked the Petitioner about his itinerary and the contents of the bag.  The Agent asked for and obtained the Petitioner’s consent to search the bag, where he found nine pounds of marijuana. 

At trial, the Petitioner moved to suppress the evidence on the grounds that the Agent’s stop violated the fourteenth amendment.  The trial court denied the motion and sentenced the Petitioner to ten months of imprisonment.  On appeal, the U.S. Court of Appeals for the Fifth Circuit found that the trial court failed to find whether the Agent had completed his immigration inquiry of the Petitioner when he walked away to the back of the bus and then returned to the front of the bus, and also if no, whether the stop was unreasonably prolonged.  On remand, the trial court found that the Agent’s second questioning was not related to the Agent’s initial immigration inquiry, and that the stop was unreasonably prolonged and violated the Petitioner’s fourteenth amendment rights.

The U.S. appealed the trial court’s finding and on appeal, the U.S. Court of Appeals for the Fifth Circuit stated the rule that when an agent acknowledges that the immigration purpose of a stop has been completed, further questioning may impermissibly extend the stop unless the agent is alerted to additional facts that might raise a reasonable suspicion of criminal activity.   In this case, there were no additional facts giving rise to reasonable suspicion, and as a result, the stop was unreasonable and unconstitutional and any fruits of the stop and seizure must and should have been suppressed.

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Andia v. Ashcroft

Ninth Circuit Court of Appeals

2004 U.S. App. LEXIS 3956

Petitioners Rosmery Andia and her son Amilcar Torrez did not appear at their deportation hearing and were deported, but claimed they never received notice of the hearing so sought to reopen the case.  The IJ denied their motion to reopen because they waited seven months after learning of the deportation order before filing their motion to reopen, and the BIA found no abuse of discretion by the IJ.  The Ninth Circuit granted the motion to reopen, citing federal law which allows the filing of a motion to reopen an in absentia deportation order at any time on lack of notice grounds. 

Petitioners' asylum application, prepared by an immigration consultant, included what the petitioners claim was not their address but the address of their immigration consultant. After a series of correspondence never received by the petitioners, the IJ ordered deportation on February 9, 1996, but the petitioners were not aware of the order until August of that same year when they contacted the immigration consultant again to check on their asylum application.

Since the IJ did not address the lack-of-notice issue, which the BIA has clearly found relevant in motions to reopen, and the BIA did not resolve the notice issue, the Ninth Circuit found the BIA's holding contrary to law, granted the petitioners' motion, and remanded the case for further proceedings.  The Ninth Circuit held that the IJ had arbitrarily and without authority set a time limit for a reopening motion when the statutes and regulations do not establish such a time limit.  The court found unconstitutional any deportation without constitutionally adequate notice of the deportation hearing; aliens are permitted to raise lack of notice at any time.