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BOWLER v. U.S. INS

September 12, 1995

VINCENT BOWLER, Petitioner, against U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.


The opinion of the court was delivered by: SONIA SOTOMAYOR

 SONIA SOTOMAYOR, U.S.D.J.

 At the invitation of the Court, respondent, the United States Attorney's Office for the Southern District of New York, has moved for sanctions against petitioner Vincent Bowler's attorney, Paul I. Freedman ("Freedman"), pursuant to Federal Rule of Civil Procedure 11 ("Rule 11"). Freedman, in turn, moves for Rule 11 sanctions based on respondent's filing of the instant motion. For the reasons discussed below, petitioner's and respondent's Rule 11 motions are denied. I do, however, impose sanctions against Freedman pursuant to 28 U.S.C. § 1927 ("§ 1927").

 Vincent Bowler ("Bowler"), a citizen and national of Jamaica, entered the United States on a six month tourist visa in November 1983. Since that time, Bowler has compiled an extensive criminal record, including possession of marijuana and a loaded firearm. See Record File -- Deportation Proceedings, certified September 9, 1994 (hereinafter "Deportation Record"), at 88-90, attached as Ex. 5 to Declaration of F. James Loprest, Jr., sworn to November 30, 1994 (hereinafter "Loprest Decl."). On March 18, 1993, the United States Immigration and Naturalization Service ("INS") served an administrative order to show cause on Bowler, who was serving a sentence on a New York State weapons charge at the Collins Correctional Facility in Helmuth, New York, why he should not be deported. Id. In the order to show cause, the INS alleged that Bowler was deportable because he had overstayed his visa and due to his criminal record pursuant to 8 U.S.C. § 1251, subsections (a)(2)(B)(i) and (a)(2)(C). Id.

 In late 1993 or early 1994, Bowler was taken into federal custody and transferred to the Federal Correctional Institutional at Oakdale, Louisiana ("Oakdale"). On April 7, 1994, Bowler was notified that his deportation hearing would be held at Oakdale on May 10, 1994. At the May 10 hearing, Immigration Judge Charles A. Wiegand, III (the "Immigration Judge") advised Bowler about the nature of the proceeding, advised him of his right to counsel, and gave him a list of pro bono counsel in the area. Bowler requested an adjournment of the proceedings so that he could try to retain a private attorney. See Hearing Transcripts, attached as Ex. 6 to Loprest Decl. (hereinafter "Hearing Trans."), at 2-3. The Immigration Judge granted Bowler's request, and set a new hearing date for May 20, 1994. Bowler was handed a notice that contained the new hearing date. Id.

 At the May 20 hearing, Bowler informed the Immigration Judge that he was still making arrangements to retain an attorney, and that he was trying to obtain a bond so that he could be released from detention. Id. at 4. The Immigration Judge delayed the proceedings until June 14, 1994. Id. at 5. The Immigration Judge advised Bowler that if he was released on bond before the June 14 hearing, Bowler would still be obliged to be present for that hearing "unless you [Bowler] receive notice from my office that the [June 14] hearing has either been postponed or that the venue of the proceeding is changed to some other location." Id. at 5.

 On May 23, 1994, the INS granted Bowler's request for release on a $ 15,000 bond. See Loprest Decl. at P 7. Thereafter, Bowler apparently left Louisiana for New York. Bowler did not appear at the June 14 hearing. At that hearing, the Immigration Judge noted that Bowler had not contacted the Court to explain his absence, and conducted a hearing in absentia pursuant to 8 U.S.C. § 1252b, which empowers immigration judges to deport aliens who fail to show exceptional circumstances for failing to appear at a scheduled hearing. See Hearing Trans. at 5. The government produced evidence concerning Bowler's alienage, entry into the United States, and criminal history. Id. at 6. Finding the government's evidence sufficient to support a deportation order, and in light of Bowler's failure to either appear or to apply for any form of relief, the Court ordered Bowler deported to Jamaica pursuant to 8 U.S.C. § 1252b(c)(1).

 On June 21, 1994, Bowler, through his recently retained counsel Freedman, filed a motion to reopen his deportation proceedings with the INS's District Office in New York. See Deportation Record at 38. In the motion, Freedman affirmed under penalty of perjury that he meant to file a motion to change the venue of Bowler's deportation hearing prior to the final hearing held on June 14, but failed to do so because his office was "backed up" with other cases and a new employee made a mistake. Id. at 39 and 41. Freedman indicated that he wished to file an application for political asylum, although he did not specify the grounds for such an application. Id. at 40. Attached to the motion to reopen was an affidavit executed by Bowler, in which he states that he retained Freedman on June 6, 1994 and that he did not show up to the June 14 hearing because Freedman told him that the hearing would be rescheduled. Id. at 42. The INS opposed the motion to reopen, and forwarded it to the Immigration Judge in Oakdale.

 On June 27, 1994, Bowler's deportation order became final, because he had failed to file a notice of appeal to the Board of Immigration Appeals. See Loprest Decl. at P 9; 8 C.F.R.

 §§ 3.38-3.39 (alien has 13 days to file notice of appeal from Immigration Judge's decision when notice of decision provided by mail, after which time decision of Immigration Judge becomes final). On July 14, the Immigration Judge in Oakdale denied Bowler's motion to reopen the deportation proceedings because Bowler had failed to show any exceptional circumstances for failing to appear as defined by 8 U.S.C. § 1252(f)(2). See id. at 30-31.

 On the basis of the June 14 order of deportation, the INS ordered Bowler to surrender for deportation at Oakdale on July 15, 1994. When Bowler did not surrender, the brokerage firm that posted Bowler's $ 15,000 bond hired Fugitive Task Force, Inc. ("FTF") to locate Bowler. See Affidavit of John Mancini, sworn to September 9, 1994 ("Mancini Aff."), at P 1.

 On August 12, Freedman filed another motion to reopen the deportation proceedings with the INS District Office in New York. Again, Freedman indicated that he wished to file an application for political asylum, but did not specify the grounds for such an application. See Deportation Record at 20. The INS forwarded this motion and its opposition papers to the Immigration Judge in Oakdale.

 On August 19, 1994, Freedman filed an Order to Show Cause in this Court (the "August 19 Order to Show Cause") seeking to stay the deportation and the activities of FTF. Sitting in Part I, this Court's emergency part, Judge Loretta A. Preska denied the order to show cause without prejudice, inter alia, because Freedman had failed to include a memorandum of law setting forth the jurisdictional basis for the action. See Order to Show Cause, dated August 19, 1994.

 On Tuesday August 23, 1994, John Mancini ("Mancini"), a FTF bail enforcement agent, was informed by the Bronx County Probation Office that Bowler was present in that office. Mancini Aff. at P 3. Mancini went to the Probation Office sometime between 4:00 and 4:30 pm on August 23, and took custody of Bowler. Id. at 4; see also Affidavit of Michael Siegel, sworn to September 9, 1994 ("Siegel Aff."), at P 4. Mancini made arrangements to transport Bowler to the Oakdale and then brought Bowler to a hotel in Clifton, New Jersey. At 2:00 am on August 24, Mancini and Bowler were joined at the hotel by FTF bail enforcement agent Michael Siegel ("Siegel"). Siegel Decl. at P 4. At about 6:20 am on August 24, Siegel, Mancini, and Bowler boarded a flight to Dallas, Texas. Id. at P 5. From Dallas, the trio caught a flight to Alexandria, Louisiana, and then drove to Oakdale where INS officers took custody of Bowler at about 1:00 pm. Mancini Aff. at P 7. From the moment of his apprehension in the Bronx to his arrival in Oakdale, Bowler was in the constant custody of Mancini and Siegel. Siegel Aff. at P 7.

 On August 24, Freedman refiled the Order to Show Cause in this Court (the "August 24 Order to Show Cause"). At that time, I was the Part I judge. Attached to both the August 19 and the August 24 Orders to Show Cause were letters from FTF to Freedman. In one of the letters, dated August 16, 1994, Siegel stated:

 
I have been waiting for you to return my phone calls. It appears that you are not going to follow thru [sic] with your promises. We have been trying to work this out with your office since the end of last week, but when promises are not kept ... then we will have to execute the actions that are within our legal rights ... Please be advised that unless this matter is resolved today, Mr. Bowler will be apprehended and transported back to Oakdale La.

 See Letter of Michael Siegel, attached to August 19 Order to Show Cause at Ex. A; August 24 Order to Show Cause at 9 (hereinafter the "Siegel Letter"). *fn1"

 
in this situation, the [immigration] judge apparently contacted our office. A member of our firm contacted the judge, because Mr. Bowler was in our office. Let me state for the record, Mr. Bowler's affidavit I believe was under the original order to show cause. He was in our office. He appeared in our office.
 
We attempted to contact the judge. The judge has one phone in Louisiana, not nine lines, one phone. The judge was on trying to reach either us or doing another hearing. We don't know. We attempted to call the judge four times in an attempt to request a continuance because our office was engaged in [another matter]...
 
We couldn't get through to the court. The judge in that situation tried us. We ...

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