The U.S. Court of Appeals for the Fifth Circuit upheld the use of a sealed pre-sentence investigation report (PSR) in removal proceedings and held that DHS trial attorneys should not be cited for criminal contempt as a result of submitting the PSR to an immigration judge without first receiving permission from the criminal court. United States v. Iqbal, No. 10-51200, slip op. (5th Cir. June 14, 2012) (Jones, Owen, and Higginson). Judge Jones wrote the panel’s decision.
This case involved an individual convicted of structuring financial transactions to evade federal reporting requirements and charged with being removable on the basis that he immigrated to the USA to engage in unlawful commercialized vice—namely, an illegal gambling operation. Iqbal, No. 10-51200, slip op. at 1-2. A DHS trial attorney introduced the PSR produced by the federal district court “to demonstrate that Iqbal immigrated to the U.S. to assist in [his brother] Tariq’s gambling operations notwithstanding the district court’s contrary finding.” Iqbal, No. 10-51200, slip op. at 2.
Iqbal objected to the PSR’s use without permission from the district court, the IJ agreed, and the district court later released a redacted version of the PSR for use in the removal proceedings. Iqbal, No. 10-51200, slip op. at 2. Iqbal also requested criminal contempt sanctions against the DHS attorneys for releasing the sealed PSR to the IJ without first receiving permission from the district court, but the district court refused to impose sanctions. Iqbal, No. 10-51200, slip op. at 3. Iqbal appealed the district court’s decision to release portions of the PSR and refusal to impose sanctions.
The Fifth Circuit disagreed with Iqbal on both issues. First, it concluded that release of the redacted PSR was permissible under the three-part framework articulated in United States v. Huckaby, 43 F.3d 135, 139 (5th Cir. 1995). Though not directly on point, “Huckaby supplies a reasonable framework for analyzing PSR releases to immigration authorities,” the court announced. Iqbal, No. 10-51200, slip op. at 5.
In Huckaby, the Fifth Circuit explained that PSRs are typically kept confidential because the defendant has a strong privacy interest in the broad range of information that they contain; because PSRs often rely on confidential sources so regularly breaching the guarantee of secrecy would make it difficult for the government to gather important confidential information in the future; and because regular release could “stifle or discourage” defendants and third parties from providing courts with the information contained in PSRs that’s necessary to reach a just sentence. Iqbal, No. 10-51200, slip op. at 4-5. All of these considerations, however, can be outweighed “when the moving party can show a “‘compelling, particularized need for disclosure’ to meet the ends of justice.” Iqbal, No. 10-51200, slip op. at 5 (quoting Huckaby, 43 F.3d at 138).
None of the reasons supporting confidentiality are particularly strong in Iqbal’s case, the Fifth Circuit concluded. There was no suggestion that confidential sources or other government access to information might be compromised by disclosure to the IJ. Furthermore, there is little risk that disclosure would impinge the government’s ability to gather information needed for a just sentence because the district court allowed only a limited disclosure for immigration purposes. Iqbal, No. 10-51200, slip op. at 5.
The court also concluded that Iqbal’s privacy interest was not unfairly risked because the key factor for which DHS sought to use the PSR was already a matter of public record: the sentencing judge clearly noted that Iqbal had no knowledge of his brother’s illegal gambling activities prior to entering the USA and that Iqbal properly objected to statements to the contrary contained in the PSR. Iqbal, No. 10-51200, slip op. at 6-7.
Use of the PSR in removal proceedings, therefore, was proper. As a result, PSRs are likely to continue to play an important role in removal proceedings that depend on information contained outside the statute of conviction. Contesting the facts recounted in the PSR with an eye for their impact on immigration status is destined to become ever more important—in the Fifth Circuit at least—after this decision. The need for zealous criminal defense attorneys to have a keen understanding of immigration law becomes even more important.
As a final note, the court concluded that there was no merit to Iqbal’s request for sanctions against DHS attorneys. Despite introducing a sealed PSR in removal proceedings, they “did not behave contumaciously” in doing so. Iqbal, No. 10-51200, slip op. at 8. That is, they did not willfully or stubbornly disregard a clear court order. The court reached this conclusion largely because the PSR contained a common statement that “‘re-disclosure…is authorized by the United States District Court solely to assist administering the offender’s prison sentence…and other limited purposes, including deportation proceedings.’” Iqbal, No. 10-51200, slip op. at 7.
Interestingly enough, the court doesn’t address whether the DHS attorneys recklessly disregarded the court order sealing the PSR even though criminal contempt occurs if a reasonably specific court order is violated with a willful, contumacious, or reckless state of mind. Iqbal, No. 10-51200, slip op. at 7. Moreover, because this case involves removal proceedings, the court had no need to consider what else might come within the “other limited purposes” language. Is this a situation where the exception threatens to swallow the rule?