Yu Hua Jin Aquino sued then-Corrections Commissioner Dolores Aldan, Corrections Director Gregory F. Castro, and then-Assistant Attorney General Kathleen Busenkell, who resigned last month.
Ten “Does” were also included in the suit, in their individual and official capacities.
Aquino is seeking damages, court costs, and attorney’s fees for what she described as 88 days of unlawful extended detention.
Designated Judge Frances Marie Tydingco Gatewood held a conference in her chambers with the parties in connection with the motion to dismiss.
“This is a frivolous argument on which to base a claim as the Ninth Circuit has held that Gerstain hearings, which are criminal in nature, are not required in civil deportation cases,” stated Assistant Attorney General Braddock J.
Huesman in his motion filed with the federal court.
Attorney Stephen Woodruff is representing Aquino.
Huesman also pointed out that Aquino “has cited no CNMI law for the proposition that she was entitled to a hearing upon termination of her criminal incarceration.”
“For at least 20 years, the Ninth Circuit had held that Gerstein hearings do not apply in the deportation context,” the motion argued.
It said Busenkell is entitled to absolute immunity.
“It is well established that no civil liability attaches to prosecutors who fail to conduct Gerstein hearings,” Huesman said.
He said even if the court is reluctant to grant absolute immunity, “Busenkell is entitled to qualified immunity.”
Huesman said “Aquino did not suffer any infringement of a protected right, nor has she alleged Ms. Busenkell was responsible for any alleged infringement.”
Busenkell did not participate in any rights deprivation, according to Huesman.
Aquino has pleaded guilty to illegal possession of controlled substance.
Aquino was supposed to be released from Department of Corrections custody on April 13, 2009 but she remained in jail for 88 more days.
