UNITED STATES DEPARTMENT OF JUSTICE

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					                UNITED STATES DEPARTMENT OF JUSTICE
              EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
                         PORTLAND, OREGON

IN THE MATTER OF                     §
                                     §      IN REMOVAL PROCEEDINGS
JHN                                  §      HON. JUDGE BENNETT
AXXXXXX                              §      MASTER CALENDAR
                                     §      HEARING
Respondent                           §      OCT. XXX9:00 AM
                                     §

RESPONDENT’S MOTION FOR ISSUANCE OF SUBPOENAS FOR PRODUCTION OF
            DOCUMENTS AND MOTION FOR CONTINUANCE

       Comes now Respondent(s) in the above captioned matter, pursuant to 8 C.F.R.
§1003.35, et seq., and moves this Honorable Court for issuance of a subpoena(s) to the
custodian(s) of XXXX’s file(s) for the following documents:

           1. The Respondent’s complete DHS File(s), Number A;
           2. All Statements taken by DHS personnel from the Respondent;
           3. The entire ''record of proceeding'' of Respondent's prior filed application
           for asylum filed;
           4. All memoranda forwarded from the Department of State regarding the
           conditions in XXXXXXX and/or relating to the adjudication of asylum
           applications filed by citizens of XXXXXX; and
           5. Any other documents and/or statements contained in DHS files for
           Respondent.

           POINTS AND AUTHORITIES

           1. Subpoenas

        Section §240(b)(1) of the Immigration and Naturalization Act, as amended
(INA), 8 U.S.C. §1229a(b)(1) , provides that the IJ has authority to issue subpoenas
for attendance of witnesses and presentation of evidence. 8 C.F.R. §§1003.35(b),
287.4(a)(2), 1287.4(a)(2), Kaur v. INS, 237 F.3d 1098 (9th Cir. 2001)[Removal order
reversed and IJ directed to issue subpoena to compel the INS to produce resource
material cited in INS’ referral of respondent’s asylum application to the IJ]; Matter of
Duran, 20 I&N Dec. 1 (BIA 1989).Pursuant to 8 C.F.R. §1003.35, et seq., as well as 8
C.F.R. § 1287.4(a)(ii), et seq., the Immigration Judge is authorized to issue a
subpoena for ''the production of books, papers and other documentary evidence, or
both.''

       Section 1003.35 requires that the applicant has made diligent effort, without

RESPONDENT’S MOTION FOR SUBPOENA
AND FOR CONTINUANCE - 1
success, to obtain the requested documentary evidence and that the evidence is
essential. This motion satisfies both preconditions.

       First, Respondent’s attorney sent a FOIA request to the USCIS on February
9, 2005. (See Exhibit A) Respondent’s attorney sent a FOIA request to CBP on
February 9, 2005. (See Exhibit B) Respondent’s attorney sent a FOIA request to ICE
on February 9, 2005. (See Exhibit C) Respondent’s attorney sent a FOIA request to
EOIR on February 9, 2005. (See Exhibit D) The records were not received within the
20 working days as required under 8 C.F.R. 103, et seq. Respondent’s attorney filed
an appeal with CIS on XXXXX. (See Exhibit E) Respondent’s attorney filed an
appeal with CBP on XXXXX. (See Exhibit F) Respondent’s attorney filed an appeal
with ICE on XXXXX. (See Exhibit G) Respondent’s attorney filed an appeal with
EOIR on XXXXX. (See Exhibit H)

       Second, the evidence sought is material and essential to the preparation and
presentation of respondent's application for relief under INA § 208.

       a. Prior Statements

        It is essential for the attorney for the Respondent to have access to all
statements made by Respondent to DHS personnel in order to prepare the § 208
application and present said application in the removal proceedings by having all
prior statements available and to determine any possible impeachment evidence in
possession of the government. Authority for the production of all prior statements
made by Respondent is found, among other, in 8 C.F.R. § 103.2(b)(7), et seq., which
provides:

       ''when any statement is taken from a person and that statement is signed by
       him, he shall be furnished a copy thereof, on request without fee.''

       b. Record of 8 C.F.R. § 208 Proceeding

        The record of proceeding of Respondent's application for asylum is material in
that it contains evidence relating to his/her compliance with applicable procedures.
Further, this record of proceeding contains evidence which directly relates to
Respondent's application(s) for relief in that it contains all prior statements as well as
material relating to the conditions in XXXXX received from the Department of
State to which Respondent does not have access. This information is essential for the
preparation and presentation of Respondent's application for relief herein.

        Further authority for the production of the record of proceeding of the § 208
asylum application is found in 8 C.F.R. § 292.4(b). The ''record of proceeding'' is
defined as ''the official history of any ... proceeding before the Service, and in addition
to the application ... includes the transcript of the hearing or interview. exhibits, and
any other evidence relied upon in the adjudication ...''.

RESPONDENT’S MOTION FOR SUBPOENA
AND FOR CONTINUANCE - 2
       Accordingly, Respondent requests the production of the complete record of
proceeding, including but not limited to all transcripts of interviews (in any form) all
statements by respondent or other witnesses, all evidence received from Department
of State regarding the conditions in XXXXX, and any and all other documents
and/or statements contained in DHS files related to Respondent. Further,
Respondent requests the production of his entire DHS file(s) and any other
documentary evidence relating to himself/herself and the conditions in XXXX in
existence.

 c. Production of Respondent’s DHS Files Will Benefit These Proceedings

       Authority for the production of such evidence is found in 5 U.S.C. § 552(a) and
8 C.F.R. 103.10 (Freedom of Information Act); 5 U.S.C. § 552(a), and 8 C.F.R. 103.21
(Privacy Act); and authority of the immigration judge to issue subpoenas, (8 C.F.R. §
1003.35); and the authority of the immigration judge to take any action consistent
with applicable provisions of law and regulation as may be appropriate to the
disposition of the case and the principles of fundamental fairness embodied in the
Fifth Amendment of the Constitution.

       The information sought by Respondent is not contained in any of the
exemptions to disclosure under the Freedom of Information Act [5 U.S.C. § 552(b)(1)-
(9)] and therefore is subject to mandatory disclosure, 5 U.S.C. § 552(a) and (c).

        The information sought in Respondent's DHS file(s) contains records and
information pertaining to him/her and as such must be made available for his/her
inspection and/or copying upon his/her request within 10 days of said request. 5
U.S.C. § 552a(d). To date, the records have not been received although Respondent
has filed appeals with all agencies. Except filing a federal mandamus action under the
Freedom of Information Act ("FOIA"), 5 U.S.C. Section 552, as amended, to order the
production of agency records, Respondent has exhausted his/her administrative
remedies to obtain his/records.

        Said records sought to be reviewed and/or copied are not covered by any of the
exemptions enumerated in 5 U.S.C. § 552a(j) and therefore must be produced for
review. Furthermore, the exceptions under FOIA preventing disclosure are to be
narrowly construed. Dep’t of the Interior v. Klamath Water Users Protective Ass’n, 532
U.S. 1 (2001). In creating the FOIA, Congress intended "full agency disclosure unless
information is exempted under clearly delineated statutory language." Dep’t of Air
Force v. Rose, 425 U.S. 352, 360–61 (1976). Because [Alien’s] immigration file is not
clearly exempted, it must be disclosed.

        Fundamental fairness requires the disclosure of the evidence sought herein.
See e.g. Chin Yow v. U.S., 208 U.S. 8 (1908)(applicant for admission has a right to a
fundamentally fair hearing under DHS statutes and regulations). See also Matter of

RESPONDENT’S MOTION FOR SUBPOENA
AND FOR CONTINUANCE - 3
G-, 20 I&N Dec. 764 (BIA 1993)(administrative proceedings must conform to basic
notions of fundamental fairness).

        Requests for discovery are particularly important in immigration court
proceedings. Disclosure of Department of Homeland Security (DHS) records does not
interfere with immigration proceedings, but, in fact, expedites matters by providing
immigrants with information vital to their case. The judge, the DHS trial attorney,
and the public all benefit from better-prepared respondents.

        Given that Respondent’s reasonable efforts to obtain information from the
DHS agencies has proven effectively futile, it is imperative that Respondents has
access to his/her files in immigration proceedings. INA §240(c)(1) provides that “at
the conclusion of the proceeding the immigration judge shall decide whether an alien
is removable from the United States. The determination of the immigration judge
shall be based only on the evidence produced at the hearing.” Therefore, it is
imperative that Respondent has access to all files at the beginning which can then
become part of the record. See e.g. Matter of Kazemi, 19 I&N Dec. 49, 51 (BIA
1984)(an application for admission is a continuing application and admissibility is
determined on the basis of the law and facts existing at the time the application is
finally considered before the IJ).

       Furthermore, under INA §240(c)(2), even when the alien bears a burden of
proof in the §212 context, an alien has a statutory right to access to their file for the
purpose of proving either that they have been admitted to the country, or that they
are admissible. This section provides that:

       “[i]n meeting the burden of proof under subparagraph (B), the alien shall have
       access to the alien’s visa or other entry document, if any, and any other
       records and documents, not considered by the Attorney General to be
       confidential, pertaining to the alien’s admission or presence in the United
       States.”

       In addition, INA §240(c)(3)(A) places the burden of proof on the Government
where an individual has been previously admitted in that “the Service has the burden
of establishing by clear and convincing evidence that, in the case of an alien who has
been admitted to the United States, the alien is deportable.” See also 8 CFR
§1240.8(a) and 8 C.F.R. §1240.9.

       Respondent has received a Notice to Appear from DHS, and is now in removal
proceedings with significant issues at stake. [His/Her] removal hearing is approaching
and in order to defend [himself/herself], [he/she] needs to know the information that
may be used against [him/her] given that either a ground of inadmissibility or
removability may not be applicable and/or a waiver or other relief is available and
may be granted at the conclusion of proceedings. The information sought herein is


RESPONDENT’S MOTION FOR SUBPOENA
AND FOR CONTINUANCE - 4
not privileged. The request is reasonably related to these proceedings and the
information sought is material and essential to the presentation of the application.

        WHEREFORE, Respondent prays that this Court issue a subpoena directed
to the custodian(s) of JHN’s A file and that a continuance until these documents are
produced is necessary, fair, and consistent with the interest of justice.




                      Respectfully submitted,


                                                   Larsson Immigration Group, P.C.
                                                   243 SW Scalehouse Loop # 5A
                                                   Bend, OR 97702
                                                   (541) 749-2102
                                                   (541) 749-2103 Fax

                                                   ______________________________
                                                   Dan R. Larsson, OSB # 04199
                                                   Attorney for Respondent




RESPONDENT’S MOTION FOR SUBPOENA
AND FOR CONTINUANCE - 5

				
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