by Christopher Zoukis
Jose Luis Tapia-Fierro, who was a legal permanent resident of California when he was deported after a conviction of involuntary manslaughter, was granted the right to appeal his deportation decision even after waiving his appeal rights at the deportation hearing. Tapia-Fierro also accepted a settlement of approximately $80,000 for attorneys' fees and costs.
Tapia-Fierro arrived in the United States in 1986 and received permanent resident status the following year. In 1999, he was convicted of involuntary manslaughter, resulting in a 34-month prison sentence. On May 24, 2001, the Immigration and Naturalization Service ("INS") initiated removal proceedings, alleging that he was a noncitizen convicted of an aggravated felony. At the hearing, Tapia-Fierro allegedly waived his appeal rights and was deported.
On August 2, 2001, Tapia-Fierro was arrested and charged with illegal re-entry into the United States. He was convicted and sentenced to 67 months imprisonment, his sentence being increased based on his having a prior aggravated felony conviction.
On August 19, 2005, Tapia-Fierro filed a petition for writ of habeas corpus in federal court against the U.S. Attorney General. He claimed that he had been wrongfully convicted of re-entry because he had been wrongfully deported in the first place. He explained that his original conviction for involuntary manslaughter was not an aggravated felony, meaning there was no basis for his deportation. He also claimed his due process rights were violated at his removal hearing because his appeal rights were never explained to him, making his appeal waiver invalid.
On May 25, 2006, Judge Manuel L. Real dismissed the case for lack of jurisdiction following a motion by the Attorney General. Upon appeal to the Ninth Circuit Court of Appeals, the order was reversed and remanded back to the District Court on February 17, 2009.
On January 5, 2011, Judge Real granted Tapia-Fierro's petition for a writ of habeas corpus, although he denied his request to be released from custody while waiting for an appellate decision. On April 5, in response to a request for reimbursement of legal fees and costs under the Equal Access to Justice Act, a settlement was reached with the United States agreeing to pay $77,937.70 for attorneys' fees and $3,971.85 for costs. Tapia-Fierro was represented by Michael Plimack, Jessica Wai-Chung Chan and John D. Freed of Covington & Burling, San Francisco.
See: Tapia-Fierro v. Holder, United States District Court for the Central District of California, Case No. 5:05-cv-00786-R-SS (Jan. 12, 2012)
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