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Napa resident suing the INS for deporting him to Mexico

He has federal court order protecting him

By Bob Egelko
The San Francisco Chronicle, September 27, 2000

Mario Rodriguez-Franco had a federal court order protecting him from deportation for an old marijuana conviction, but that didn't prevent immigration officials from putting him on a bus bound for Mexico, or from brushing off his attorney when she tried to object, civil rights attorneys say.

Rodriguez-Franco, of Napa, sued a deportation officer and other Immigration and Naturalization Service employees for $1.5 million Tuesday. He wants damages for the three days he spent in Tijuana last September, separated from his family, before the INS acknowledged its mistake and brought him home.

It's not the only case of its kind, said attorney Robert Rubin of the Lawyers' Committee for Civil Rights. He said he had filed an administrative claim against the INS on behalf of a family of four who had been illegally deported to Nicaragua under similar circumstances, and was in the process of settling two other false-arrest cases against the INS.

"I think we are starting to see a pattern," Rubin said. "It's a product of poor training and perhaps reckless behavior. . . . The policy of deport now and ask questions later must stop."

There was no immediate comment from the INS.

Lawyers said Rodriguez-Franco had entered the United States in 1979 and become a legal permanent resident in 1985 after his marriage to a U.S. citizen. They have three children, also U.S. citizens.

Rubin said Rodriguez-Franco had been convicted in 1991 of possessing marijuana for sale. The INS moved to deport him after passage of a 1996 law that expanded the list of crimes that made legal immigrants subject to deportation.

An INS appeals board ordered him deported in September 1998. But the 9th U.S. Circuit Court of Appeals promptly issued a stay order prohibiting deportation. The order remains in effect at least until the courts decide how the new law applies to pre-1996 crimes.

Rodriguez-Franco, meanwhile, was arrested by Napa police in July 1999 on an unrelated matter and held for several weeks until the charges were dropped. Instead of going free, however, he remained in jail at the orders of the INS, which was again seeking to deport him.

Contacted by Rodriguez-Franco's family, his immigration lawyer, Camille Cook, called the INS and told an officer about the stay issued by the court, but he refused to check the file, the suit said. When INS agents took Rodriguez-Franco from jail to their office three days later, the suit said, he asked repeatedly to talk to Cook, but was turned down by a deportation officer, Andrew Del Valle, who said there was nothing the lawyer could do.

He was put on a bus to Tijuana a few hours later without notice to his attorney, the suit said. Cook called the INS two days later, again mentioned the court order and faxed a copy to the office. Del Valle called her later that day, discussed arrangements to bring Rodriguez-Franco home and told her that the INS copy of the stay order had been "way down in the file," the suit said.

Rodriguez-Franco was returned to the United States the next day but spent another six weeks in custody before being released on bond, the suit said.