1 judge hearing immigration appeal was wrongfully deported

Posted: Monday, October 25, 2010 3:00 pm

Howard Fischer, Capitol Media Services | 0 comments

One of the judges deciding whether Arizona should be able to start enforcing its own immigration law was nearly deported, wrongfully, as a college student.

Carlos Bea, who became a resident alien in 1952, detailed for other judges three years ago how a mistake he made in applying for a visa while visiting Spain resulted in a hearing officer declaring he fled this country to avoid the draft.

Bea managed to get the Board of Immigration Appeals to overturn that ruling.

"Only later, when I started handling a few immigration cases, did I realize how unusual was this appellate finding,'' Bea said.

There is no way to tell whether any of that will have any effect on how he and two colleagues on the 9th Circuit Court of Appeals will decide whether a trial judge acted properly in enjoining key sections of SB 1070. The hearing is set for Monday in San Francisco.

From a purely political standpoint, the edge goes to Gov. Jan Brewer, a Republican, who is arguing through her lawyers that Judge Susan Bolton erred in granting the injunction. Two of the three judges -- Bea and John Noonan -- were nominated for the court by Republican presidents; Richard Paez, a former legal aid lawyer, was the choice of Democrat Bill Clinton.

But their personal backgrounds and philosophies may not help.

For example, Noonan has tended to side with the federal government in disputes with the states over whose laws prevail, according to Ira Ellman, a professor of law at Arizona State University.

That could prove significant.

Much of challenge by the Obama administration to SB 1070 was based on the argument that immigration is solely the province of the federal government and that the Arizona laws illegally intruded into that area. Bolton, in her ruling, agreed with many of those points.

Bea told his story in 2007 in an address to the immigration judges and members of the Board of Immigration Appeals.

Much of his speech concerned the process of hearing immigration cases as well as the immigration process itself. But Bea also detailed his own experience in the system.

"You see before you an immigrant who was once under an order of deportation,'' the judge said.

He told of his family fleeing Spain in 1939 in anticipation of a German invasion. They went first to Cuba before settling in California.

Bea noted there was a preference for resident visas for those coming from elsewhere in the Americas. Because he had inherited Cuban citizenship from his father, he became a resident alien in 1952.

That year, as a sophomore at Stanford and a basketball player, he made the Cuban Olympic team. Bea said he left for Havana without a re-entry permit, confident he could get a resident visa on his return as he had in earlier trips to Cuba.

After the games in Finland, he delayed his return for a year to play basketball in Europe.

Apply for a visa at the U.S. embassy in Madrid, Bea said he was going back to Stanford. He was given a student visa.

"I did not grasp that this was a non-resident visa that would interrupt my resident status until two years later when I attempted to get U.S. citizenship,'' Bea said.

Through a lawyer, he had filed an affidavit stating he intended to remain in the United States. That, in turn, prompted Immigration and Naturalization Service to begin deportation proceedings.

According to Bea, the hearing officer found he had voluntarily abandoned residency to avoid the draft.

Bea said the hearing officer was not swayed by his offer to reinstate his residency and draft him since, at age 21, he was still draft eligible. He the hearing officer told him that was not the same as the Korean War was now over.

On appeal to the five-member Board of Immigration Appeals in Washington, Bea said the chairman asked to speak directly to him. Bea said that conversation apparently helped when the appeals board concluded that the hearing officer abused his discretion by not exercising his discretion to reinstate his resident status.

Bea is the newest of the three judges hearing the case, having been named to the court in 2003 by President George W. Bush.

At the other extreme is Noonan, a 1985 appointment of Ronald Reagan.

Ellman said Reagan likely picked Noonan, a Catholic, because of his strong anti-abortion sentiments.

"I don't think that Reagan got quite what he expected,'' Ellman said. The ASU professor said that, on other issues, Noonan is not a doctrinaire conservative. And that, said Ellman, goes beyond the judge not always seeing states' rights as superior to the powers of the federal government.

"He also cares about people in a way that is sometimes a little bit antithetic to the way conservatives might want the court to be,'' Ellman said.

He specifically said that Noonan might be sympathetic to arguments that SB 1070 would lead to profiling of Hispanics who are in this country legally. That is one of the arguments made by the U.S. Department of Justice in urging Bolton to halt the law.

Last year Noonan wrote a decision for the appellate court barring federal magistrates in Tucson from taking guilty pleas from illegal immigrants in large groups.

Noonan also came down on the side of individual privacy in a 1999 ruling that found nothing wrong with police using thermal imaging equipment to peer through the walls of a house to determine whether more heat was being generated than expected, perhaps because of lights to grow marijuana. Noonan dissented, calling it "Orwellian surveillance.''

Paez wrote a decision declaring illegal the use of "webcams'' by Maricopa County Sheriff Joe Arpaio where outsiders could log on to see what was happening inside the jail. He said that "constitutes a level of humiliation that almost anyone would regard as profoundly undesirable and strive to avoid.''

www.eastvalleytribune.com