10th Circuit judges urge full

Jul 11, 2023

The Byron White U.S. Courthouse in downtown Denver, which houses the 10th U.S. Circuit Court of Appeals.

The Denver-based federal appeals court has agreed a Colorado immigration judge was wrong when he concluded Costa Rican police officers who abducted and raped a man, while wearing their uniforms and using their police car, were not actually acting in their government roles.

Consequently, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit ordered a new look at Dennis Arostegui-Maldonado's plea to avoid deportation to Costa Rica.

In an extraordinary move, two members of the panel also urged a rare all-judges hearing of Arostegui-Maldonado's appeal to determine whether recent U.S. Supreme Court precedent even allowed them to review the case. If the answer was no, it could jeopardize Arostegui-Maldonado's effort to escape further torture in his home country.

Decided: August 1, 2023

Jurisdiction: Board of Immigration Appeals

Ruling: 3-0

Judges: Scott M. Matheson Jr. (author)

Timothy M. Tymkovich (concurrence)

Allison H. Eid (concurrence)

Background: Strategic Considerations for Going En Banc in the Tenth Circuit (2023)

Arostegui-Maldonado was previously deported in 2008 and 2018, but reentered in 2021. An immigration judge reinstated the prior deportation order to once again remove Arostegui-Maldonado. But Arostegui-Maldonado sought protection under the Convention Against Torture. He testified that he feared returning to Costa Rica because of his recent torture at the hands of police officers.

In late 2020, police officers arrived at Arostegui-Maldonado's home in their patrol car and in uniform, demanding he sell drugs for them. Arostegui-Maldonado filed a report with authorities in a neighboring jurisdiction, but was told he needed to report the officers where he lived. He did so.

Shortly afterward, the officers again met him at his home, where they kidnapped him at gunpoint and took him to an isolated location. They beat him and sexually assaulted him, once more demanding he sell drugs on their behalf. They also threatened to kill him if he made a report, and they gained access to his family's contact information. Finally, the officers transported him to jail and held him for 24 hours without any criminal charge.

At a hearing in Aurora, Arostegui-Maldonado told Immigration Judge Steven Caley his stomach still has "the bubble" where the officers hit him and that he has to take medicine for his rape injury. Caley found him credible, but ultimately ordered him returned to Costa Rica. Specifically, Caley decided Arostegui-Maldonado had not shown the police who tortured him were acting as government agents at the time.

"The evidence is insufficient to show that they could not have performed their actions regardless of their connection to the government," Caley wrote.

He added that "any person" could have pointed a gun at Arostegui-Maldonado or abducted him, not just police.

On appeal to the 10th Circuit, Arostegui-Maldonado's lawyer disputed Caley's logic.

"During each encounter," attorney Laura Lunn told the 10th Circuit panel during oral arguments, the officers "were uniformed and had their police vehicle. They gained control over Mr. Maldonado by arresting him, handcuffing him and placing him in their official patrol car. The officers jailed Mr. Maldonado, which is not something anyone can do. Only officers have that kind of authority."

The 10th Circuit agreed with her, issuing a decision on Aug. 1 that was critical of the way Caley dismissed the officers' connection to the government.

"This interpretation defies logic and the law," wrote Judge Scott M. Matheson Jr. "The police officers wore their uniforms, used a gun and a patrol car, put Mr. Arostegui-Maldonado in jail, and later obtained a warrant for his arrest. Their misuse of power — threatening, beating, raping, and jailing Mr. Arostegui-Maldonado — was thus made possible by virtue of being clothed with the authority of law."

The panel ordered immigration authorities to reevaluate Arostegui-Maldonado's application for protection in light of its decision.

At the same time, in a highly unusual two-person concurrence, Judge Timothy M. Tymkovich wrote for himself and Judge Allison H. Eid to say they were skeptical the 10th Circuit had the authority to hear Arostegui-Maldonado's appeal in the first place.

The dispute pertained to the circumstances of Arostegui-Maldonado's request to avoid deportation. Because his earlier deportation order was reinstated when he came to the U.S. a third time, it was unclear whether he needed to file a challenge within 30 days or if he could wait for his Convention Against Torture proceedings to conclude.

The 10th Circuit decided in 2015 that a non-citizen could wait to appeal until after related proceedings concluded — and Matheson's majority opinion stood by that interpretation. But Tymkovich warned that recent Supreme Court decisions may have compromised the 10th Circuit's earlier position to the point where the panel may not have had the authority to consider Arostegui-Maldonado's case at all.

Federal appeals courts can rehear cases "en banc," meaning with all of the judges instead of the traditional three-member panels. In the 10th Circuit, en banc hearings happen rarely — less than once per year, on average.

However, as Tymkovich pointed out, the only mechanism to overrule a prior 10th Circuit decision, other than the Supreme Court's intervention, is to do so en banc with the vote of a majority of judges. The concurrence made clear that two of the court's 11 members were interested in taking that step.

"The full court should consider whether Mr. Arostegui-Maldonado should have petitioned for review within the 30-day window following the imposition of his reinstatement order," Tymkovich wrote.

The case is Arostegui-Maldonado v. Garland.

The federal appeals court based in Denver rejected a man's argument last month that he should be shielded from deportation because his felony …