Benjamin Nuñez-Marques, a resident of Orcas Island for the last nine years, was taking a neighbor to the emergency room at Island Hospital in Anacortes on March 3, 2008, when he was detained by the Border Patrol at a checkpoint at the Anacortes Ferry Terminal. Following a hearing on Sept. 15 in a deportation proceeding, Nuñez has been granted “voluntary departure,” compelling him to leave the United States. His attorneys, Robert Gibbs, Mari Matsumoto and Devin Theriot-Orr, say that the initial stop violated their client’s rights under the United States constitution and that they will appeal the decision.

The initial appeal will be heard by the Board of Immigrations Appeals, which can take from six months to a year to review the record and issue its decision. If the Board denies the appeal, Nuñez may appeal to the U.S. Court of Appeals for the Ninth Circuit in San Francisco.

“We strongly contest that this is a border check at all,” said Matsumoto. “There were no international sailings when he was apprehended, and border checks are valid only when entering from a United States border.” In fact, added attorney Theriot-Orr, “the government did not even claim that this was a border check at the hearing.”

When the Orcas resident was stopped and questioned at the Anacortes checkpoint, he says he informed the Border Patrol agents that he was taking his neighbor, who’d been seen at the Orcas Medical Center, to the Emergency Room at Island Hospital. Nuñez was detained and taken into custody, although the neighbor did finally get to the hospital.

Nuñez says that he asserted his right to speak to an attorney at various times during his detention. According to Matsumoto, the Customs and Border Patrol Inspectors Training Manual states that questioning is to cease for a reasonable amount of time if a detainee requests a lawyer, during which time counsel is to be obtained. Matsumoto said that during the deportation hearing, Border Patrol agents said they were completely unaware of that directive and could not recall the detainee ever requesting a lawyer, despite his sworn statement that he repeatedly did so. “They violated their own agency regulations,” said Matsumoto.

Nuñez was sent to Border Patrol offices in Bellingham, Lynden and Blaine, and finally to the Northwest Detention Center in Tacoma.

He is responsible for all fees for the legal proceedings since his detention. He has paid them himself with the assistance of island supporters “who are pulling together for him,” said Matsumoto.

With regard to concerns expressed regarding terrorists eluding law enforcement at the Anacortes terminal, Theriot-Orr said, “It bears emphasis that every one of the 9-11 attackers were in the United States lawfully with correct documentation, so the idea that the checkpoints prevent terrorism is patently false.” Matsumoto added that “the officers in this case didn’t state they did any security screening more effective than checking citizenship – they don’t check for unlawful firearms or explosives.”

Although the government has claimed that the checkpoint is necessary to prevent the illegal entry of persons from Canada through the San Juans, Nuñez’s attorneys noted that the government failed to produce any competent evidence to support that assertion at the hearing.

Under the terms of the Sept. 15 decision, Nuñez pays the expense of leaving the United States and has burdensome requirements for any future re-entry. In the meantime, he has returned to Orcas where he continues to work and help care for his neighbor.