Free Statement - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JOHN R. MAYFIELD Assistant U.S. Attorney Arizona State Bar No. 4848 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Defendant Earl R. Scalet, Deportation Officer Department of Homeland Security, U.S. Immigration and Customs Enforcement (ICE), by and through undersigned counsel, respectfully submit his Statement of Facts in support of the Motion for Summary Judgment pursuant to Rule 56 F.R.Civ.P. and in accordance with Local Rule 56(a). Respectfully submitted this day of November, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney Carlos Arthur Powell, Plaintiff, vs. F. Garcia, (Assist. Warden); C. Miles (Unit Manager/Bravo); E. Scalet, (INS), Defendants CIV 03-1819-PHX-JAT (LOA) DEFENDANT SCALET'S STATEMENT OF FACTS I9N SUPPORT OF MOTION TO DISMISS; MOTION FOR SUMMARY JUDGMENT

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STATEMENT OF FACTS Earl R. Scalet is currently employed by the Department of Homeland Security,

U.S. Immigration and Customs Enforcement (ICE) as a Deportation Officer, He is currently assigned to the Phoenix, Arizona Field Office. SCALET AFFIDAVIT page 1, lines 15-17. 2. From March 2001 until February of 2006, he was employed as an Immigration

Agent by the United States Immigration and Naturalization Service (INS). INS was replaced by ICE after the creation of the Department of Homeland Security, and my job title was changed to Immigration Enforcement Agent in August of 2003. SCALET AFFIDAVIT page 1, lines 18-21. 3. During that period of time he was assigned to the Eloy Detention Center,

Institutional Removal Program (IRP). His duties were to interview the United States Bureau of Prisons, (BOP) inmates housed at the Eloy Detention Center to determine their citizenship, and place them into removal proceedings if appropriate based upon their citizenship, information found in their Immigration File, and their criminal convictions. He remained an employee of ICE at the Eloy Detention Center until February of 2006. SCALET AFFIDAVIT page 1, lines 22-27. 4. It was in this capacity that he first came into contact with Carlos Powell, (known

to ICE as Raul Ernesto Alonzo). Mr. Powell was a BOP inmate, which BOP had listed as a citizen of Cuba. SCALET AFFIDAVIT page 2 , lines 1-3. 5. Earl R. Scalet is currently named as a co-defendant in case CV 03-1819-PHX-JAT

(LOA). The plaintiff, one Raul Ernesto Alonzo-Prieto (AKA: Carlos Powell), BOP #1090-023 is a Bureau of Prisons inmate who was, at all times relevant to the charges against Scalet, incarcerated at the Eloy Detention Center. SCALET AFFIDAVIT page 2 , lines 4-7. 6. Mr. Alonzo (Powell) is complaining /alleging that Scalet, as the Immigration

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Enforcement Agent assigned to handle his case for ICE purposes, conspired with the other co-defendants to intentionally disclose information to other inmates at this institution which would cause Powell, to be labeled a "snitch." SCALET AFFIDAVIT page 2, lines 8-11. 7. The charges Powell has made against Scalet are unfounded. In Scalet's duties as an

Immigration Enforcement Agent, he routinely received correspondence from inmates asking questions about their Immigration proceedings. These requests are made in writing on forms commonly known in the institution as "Cop-Out Letters." Many times the questions are based upon discussions the inmates have amongst themselves which leads them to compare their Immigration situation to that of another inmate and consequently they want to ask me why the are being placed in removal proceedings while another inmate, who's case appears to them to be similar, may not be. SCALET AFFIDAVIT page 2, lines 12-19. 7. Scalet received one such "Cop-Out Letter" on August 5, 2003 from an Inmate by

the name of Eric Salvador-Benitez. EXHIBIT 1. In his correspondence, Inmate Salvador-Benitez was comparing his case to that of another inmate by the name of Jose Garcia-Ibarra. Inmate Salvador-Benitez was concerned with why Inmate Garcia-Ibarra was being allowed to work outside the prison gates and was not being placed into removal proceedings when his conviction was similar to that of Inmate SalvadorBenitez's conviction. SCALET AFFIDAVIT page 2, lines 20-26. 8. At the time BOP inmates who were not "deportable" were used as "gate-pass"

workers who would clean up the parking lot and perimeter fence areas, as well as other needed duties around the facility. Scalet attempted to explain this to Inmate SalvadorBenitez in writing on August 7, 2003. EXHIBIT 2.SCALET AFFIDAVIT page 2-3, lines 6; 1-3. 9. On August 11, 2003, Scalet received a "Cop-Out Letter" from an inmate by the

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name of Ismael Navarro. EXHIBIT 3. In his correspondence, he seemed to be responding to Scalet's written response to inmate Salvador-Benitez. He went on about how my "entity" (ICE) was misinformed and that Inmate Garcia-Ibarra had been successful in avoiding deportation through legal means. He also stated that Mr. Garcia-Ibarra's pending appeal was dismissed. He further stated, in this correspondence, that Inmate Garcia-Ibarra was charging other inmates at this institution $25 or more for "601" pardons and Letters to the President. SCALET AFFIDAVIT page 3, lines 4-11. 10. Because of the information in the correspondence from Inmate Navarro, Scalet

contacted the 9th Circuit Court of Appeals and learned that Inmate Garcia-Ibarra's appeal had in fact been dismissed. This alarmed Scalet because if his appeal had been dismissed, then he was subject to removal proceedings and he was currently working outside the prison fences as a "gate-pass worker." At that time, there was no immigration detainer placed on Inmate Garcia-Ibarra because he was a Lawful Permanent Resident, and his current conviction was under appeal. Inmate Garcia-Ibarra had no other criminal history that would make him removable, and until his appeal with the 9th Circuit was decided, he was not "deportable." SCALET AFFIDAVIT page 3, lines 12-20. 11. During the years that Scalet was assigned to the Eloy Detention Center, only

inmates who are not subject to deportation/removal proceedings were used for "gatepass" duties. Scalet informed ICE AOIC Crowther of the fact that Mr. Garcia-Ibarra was now subject to removal proceedings, but was being utilized as a "gate-pass" worker. AOIC Crowther set up a meeting between Scalet, CCA Assistant Warden Garcia and CCA Movement Coordinator Joe Nasal to discuss the gate-pass worker situation and how to avoid having inmates who may not be immediately subject to removal proceedings, but may become amenable to removal in the future, more specifically, inmates who's conviction is under direct appeal, from becoming gate-pass workers. SCALET AFFIDAVIT pages 3-4 , lines 21-26; 1-3.

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12.

Scalet also informed Assistant Warden Garcia and Mr. Nasal that ICE intended to

place an Immigration Detainer on Inmate Garcia-Ibarra at that time. SCALET AFFIDAVIT page 4, lines 4-5. 13. During that meeting, Scalet also informed Assistant Warden Garcia of the

allegation made by Inmate Navarro, that Inmate Garcia-Ibarra was charging other inmates to help them prepare legal paperwork. Assistant Warden Garcia was provided a copy of the cop-out letter from Inmate Navarro at this time as well. Assistant Warden Garcia informed Scalet that he was going to bring Inmate Garcia-Ibarra back inside the fence and keep him from being a "gate-pass" worker due to Immigration Detainer being placed on him. He also told Scalet he intended to look into inmate Navarro's allegation that Inmate Garcia-Ibarra was charging inmate for help with their legal paperwork. The meeting was then adjourned. SCALET AFFIDAVIT page 4, lines 6-13. 14. Approximately a week later, CCA employee Joe Nasal informed Scalet that upon

investigation, it was discovered that the "cop-out" letters Scalet received from both Inmate Salvador-Benitez and Inmate Navarro were written by inmate Carlos Powell (known to ICE as Raul Ernesto Alonzo) under Inmate Navarro's name. Joe Nasal also informed Scalet that inmate Powell was placed into the Special Housing Unit for his own protection by CCA. SCALET AFFIDAVIT page 4, lines 14-21. 15. Scalet did not suggest, nor did Scalet have the authority to have Powell placed

into the Special Housing Unit nor did Scalet ever suggest that such placement was appropriate. SCALET AFFIDAVIT page 4, lines 19-21. 16. Scalet could not have possibly disclosed to anyone that Inmate Powell (Alonzo)

had "snitched" on any other inmate because Mr. Powell (Alonzo) made the allegation while writing correspondence under the name of Inmate Navarro. Scalet was not even aware of Inmate Powell's involvement until the CCA investigation of the allegations were complete, and by that time he had already been placed into protective custody.

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SCALET AFFIDAVIT page 4, lines 22-26. 17. At no time did Scalet take any actions against or make any statements regarding

Powell with respect to Scalet's handling of the "cop-outs" submitted to him by inmates Eric Salvador-Benitez or Inmate Garcia-Ibarra. Further, Scalet I had no reason to discuss Powell with the two other inmates. SCALET AFFIDAVIT page 5, lines 1-4. 18. Finally, other than the meeting Scalet had with ICE AOIC Crowther, and the

meeting with CCA Assistant Warden Garcia and CCA employee Joe Nasal, Scalet had no further contact with any CCA employee or representative, including co-defendant Ms. Cora A. Miles, regarding inmates Ismael Navarro, Garcia-Ibarra, Eric Salvador-Benitez or Raul Ernesto Alonzo (Carlos Powell). SCALET AFFIDAVIT page 5, lines 5-9. Dated this 15th day of November 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/ John R. Mayfield JOHN R. MAYFIELD Assistant U.S. Attorney CERTIFICATE OF SERVICE I hereby certify that on November 15, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Timothy James Bojanoski Daniel Patrick Struck Jones, Skelton & Hochuli, PLC 2901 N. Central Ave, Suite 800Phoenix, Arizona 85012 Attorneys for Defendants Carson, Gluch, Talamantes, Miles, Ponce s/John R. Mayfield Office of the U.S. Attorney

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CERTIFICATE OF SERVICE I hereby certify that on November 15, 2006, I served the attached document by mail, on the following, who is not a registered participant of the CM/ECF System:
Carlos Arthur Powell c/o Ken Peterson, Esq., The Office of the Amicus Curiae Association Foundation 9335 Bowman Avenue South Gate, CA., 90280

/John R. Mayfield Office of the U.S. Attorney

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