Case History: 32 Years Later and Fernando Arango is Still in Court

By David North on February 21, 2012

Some aliens' battles with the U.S. government go on for 10, 12, even 15 years.

Then there is Fernando Arango.

He started his relations with the government successfully, but on the wrong foot, when he arrived in the U.S. from Columbia in 1980 with a green card obtained through a fraudulent marriage. (It ran in the family. His sister arrived in the same manner.)

It is now 32 years later. Arango is still in America, albeit in a federal prison, and is still struggling with the U.S. court system. And with a little help from the Ninth Circuit he may win his next round.

After Arango's arrival he had the following relationships with the government:

  • In 1982 INS began examining a batch of marriage fraud cases, including his;

  • The government enlisted Arango as an informer in the case against the marriage broker he had used, apparently in a plea bargain that gave him and his sister legal presence;

  • in 1989 Arango was naturalized;

  • a little later, according to the Ninth Circuit, he became a U.S. Customs Border Protection Officer in Arizona; it went downhill from there;

  • in 2005 he was arrested on an unrelated federal drug charge, pled guilty, and subsequently went to a federal prison;

  • in 2009 the government moved to denaturalize him (a fairly rare legal remedy) on the grounds that he had obtained his green card and his citizenship fraudulently;

  • thereafter a federal district court judge in Arizona granted summary judgment to the government on denaturalizing him; he appealed;

  • in 2012 the Ninth Circuit gave him a partial legal victory, remanding his denaturalization case back to the district court to see if there really was a binding deal, all those years ago, between the government and Arango, that would preserve his status as a citizen;

  • at some point in the future, the district court will decide that issue; Arango is still in prison as a result of the drug offense.

I find it interesting that, at least in the past, the government would use an alien's legal status as a tool in a criminal marriage fraud investigation. The government gained some real ground against the marriage broker in this case. According to the Ninth Circuit opinion, "As a result of Arango and [his sister's] assistance the INS seized evidence of over 200 immigration applications that were based on sham marriages . . ."

That opinion, dated January 12, is available online for users of PACER, the court's electronic reporting system. It is USA v. Arango, Ninth Circuit, case 10-15821. It was also reported in Interpreter Releases, the immigration bar's trade paper, January 23, p. 191, but that is not available online to non-subscribers.

I wonder about the terms of such deals. In this case, INS could have given Arango green card status, and thus legal presence in the U.S., but not a green light for naturalization; I am sure he would have happily accepted such an arrangement. INS did not do that.

Arango said he and his sister had a deal with INS agents so that not only could they could keep their green cards in exchange for cooperating with the prosecution (she had been secretary to the marriage broker), but they would not be barred from citizenship. Decades later the Justice Department told the trial court that no such deal existed and that Arango should have told INS at the time of the citizenship interview about the marriage fraud as he had not done.

Arango's argument in reply showed a touching faith in the much-maligned INS records system. (There used to be numerous news stories about large numbers of missing A-files.) He said he assumed that since the citizenship staffer had his file, she must have known about his plea arrangement, so he did not mention it.

The district court judge did not regard Arango's statement as presenting a genuine factual dispute, and granted summary judgement to Justice. The Ninth Circuit said that there indeed was a factual dispute in the case (about the plea bargain) and that summary judgement was not appropriate. The lower court, through a remand, was told to settle the matter at a trial.

That's where the case stands now, with Arango still in jail on the drug charge. It as if one is reading a long mystery novel (covering 32 years) and finds that the final chapter is missing.

Will the district judge rule, again, that Arango must be denaturalized? Will he appeal again? Will the post-naturalization drug charge be held against him in some way.

Clearly Arango, who has pled guilty to both marriage fraud and drug dealing, is a dubious addition to the citizenry, but what do you do if government agents manage to get the evidence that they want without, in fact, carrying out their part of the deal? That sounds like it might have been the case. What, more broadly, is the proper approach to a plea bargain that apparently was not put into writing, which is the current practice?

In this instance, the Ninth Circuit seemed impressed with some circumstantial evidence. Arango's sister had obtained naturalization without problems. Arango had been hired as a federal law enforcement officer after he was naturalized. All those acts would seem to suggest that a deal was in place.

Meanwhile there is another loose thread in this case. Arango is in jail in California, and wants the next trial to be there, rather than going back to the same court in Arizona. He says that he now really lives in California and could not go to Arizona, his former residence, if he wanted to do so.

The Ninth Circuit's decision cited many precedents against Arango's locational argument but sent that issue back to the trial court as well. One perceptive observation it made was that if one's legal residence while in prison was the location of the prison, it could lead the federal government, which moves prisoners around at will, to use its power to relocate prisoners as a first step toward forum-shopping. The judges clearly thought such a practice would be a bad idea and, I might add, it would appall the immigration bar.

All this probably will take many years to resolve, all on top of the first 32 of them.

I have made a note to check with PACER every six months or so to see how this case is going, and hope to satisfy my curiosity about the last chapter while Fernando Arango and I are both alive.

Clarification: In a Response to a USCIS Request for Comment on an L-1 (nonimmigrant) document I had quoted Professor Ron Hira of Rochester Institute of Technology incorrectly. I said that he had estimated that there were "about 750,000 people on L visas in the U.S. at any given time." What he has estimated is that the L-1 population (i.e. the principal nonimmigrants) is about 350,000 at any point in time, and to that I have added my own estimate of 300,000 L-2s (dependents) for a combined total of about 650,000. L-1s are managerial and professional employees of multinational corporations. My apologies.