Knoxville, Tennessee–(12/8/09)–Ernst and Ingrid Zundel are insisting on reconsideration based on errors of law after a Knoxville judge dismissed all their remaining claims against the government in federal district court November 10.
In a motion filed November 24, Zundels and their attorney Bruce Leichty have protested the fact that U.S. District Judge Thomas Varlan did not even discuss one of the major issues remaining in their case when he tossed all of Zundels’ surviving claims out of court in November: whether it was lawful for the United States INS to bar Ernst Zundel from returning to the U.S. for 20 years after he was deported from the U.S. in 2003.
Zundel is currently serving a five-year prison sentence in Germany for a speech crime based on his publicly-expressed dissident views about “the Holocaust,” but he wishes to rejoin his wife Ingrid at their home in Tennessee after he is released.
U.S. immigration law in 2003 allowed a 20-year bar only when there had been a second deportation, Leichty pointed out in his motion. Since Ernst Zundel was deported only once, no 20-year bar could apply, and no prior court decision had dealt with the bar, and Zundel had properly raised the issue in his most recent amended complaint filed in 2004 in Knoxville, Leichty noted.
Zundels had argued that point as well other points in an extensive Opposition they filed in 2008 to a motion by the United States to dismiss all of Zundels’ remaining claims against the U.S. and its officers. That motion came after the Sixth Circuit Court of Appeals in late 2007 denied Zundels’ petition to review Ernst Zundel’s habeas corpus claim that his deportation itself was in violation of law–notwithstanding the government’s claim that Zundel had waived the right to allege any such violation–and after the U.S. Supreme Court in February 2008 then declined to consider Zundels’ appeal.
Knoxville judge Varlan took more than a year to rule on the United States motion to dismiss and a similar motion filed by Blount County Sheriff James Berrong, who had custody over Zundel when he was first arrested in 2003, as well as a request by Zundels to allow them to amend their complaint. Among other things, Zundel had sought to amend his complaint against sheriff Berrong based on new evidence that the use of threatening dogs against him in Blount County Jail was part of a larger pattern of federal mistreatment of political prisoners during the Bush presidency.
Leichty said the delay by the Knoxville federal court in deciding the three motions filed in mid-2008 was unprecedented in his experience; court staff told him at one point that the problem was exacerbated by overwhelmed and/or departing law clerks, who usually do the research on complex motions and often draft memoranda which become opinions, or sometimes write the opinions themselves, Leichty said. Leichty observed that he himself was commissioned to write such memos when he worked as an extern for the Ninth Circuit Court of Appeals during his studies at U.C. Berkeley law school–but it never took as long as this case did, nor did he ghost-write any final judgments.
By urging reconsideration mainly of the 20-year bar, Zundels have also not abandoned their right to appeal other aspects of Varlan’s ruling, according to Leichty, including their contention that Zundel is not subject to any bar at all because of the unique findings under which he was deported; and that his removal was unlawful because the Sixth Circuit finding of a waiver of rights was made only in a jurisdictional context, where Zundel had been deprived of the opportunity to present facts and prove that the U.S. Attorney General was not enforcing waivers of rights by former “visa waiver” entrants and was not legislatively empowered to do so when Zundel last entered in 2000.
Varlan also ruled that Zundel’s claim regarding the improper use of dogs was time-barred, but Leichty asserted in the motion for reconsideration that Varlan had failed to consider the fact that Zundel was prevented from previously amending his complaint (thereby “tolling” the statute of limitations) by the pendency of two appeals during all but about 11 months of the five years that elapsed between the time Zundel was first subjected to the prison abuse and the time he sought to amend in 2008–and that he tried at one point in 2006 to obtain permission to amend but was rebuffed.
After Zundels filed their motion for reconsideration November 24, the United States asked to extend the time for responding until January 22, 2010, some two months before Zundel is due to be released from Germany.
Zundels’ motion was supported by a detailed affidavit from Ingrid Zundel in which she described the hardships she has experienced without her husband, litigating against co-conspirators in three different countries, and pointed out why she is unable to leave Tennessee; unless her husband can rejoin her in America their marriage will be destroyed, she said. A U.S. citizen who has long operated a website called the Zundelsite, Ingrid Zundel has been told that an arrest warrant issued for her in 2001 in Germany because of the Zundelsite could be reactivated at any time, even though the site is located on a server in the United States.
The Zundelsite, one of the first revisionist websites on the Internet, was targeted by the German government already in 1996, she says. She continues to own and operate that site which allows her to accept orders for books and materials as well as contributions toward the couple’s legal costs.