Tuesday, June 23, 2020

FOIA Motion for Judgment on the Pleadings

Novel Attempt to Avoid Government Dithering

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A release from ICE that revealed a heretofore secret policy position on its work program took SIX YEARS of FOIA litigation to obtain. So much for the 20 days in the statute.  

In an effort to speed along litigation, attorney Andrew Free is trying out a Motion on the Pleadings. Here's what the litigation looks like to date:

Doc 7 - PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS 5/21/2020 

Doc 7-1 - PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF JUDGMENT ON THE PLEADINGS 5/21/2020

Doc 12 - DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS 6/18/2020 

Doc 13 - PLAINTIFF’S REPLY IN SUPPORT OF JUDGMENT ON THE PLEADINGS 6/23/2020

Sunday, June 21, 2020

ICE Officials Knew Dollar/Day Wages Lacked Congressional Authorization


click to enlarge

  E-mail ICE Fought to Keep Secret for Six Years May Clinch Minimum Wage Claims against Private Prisons


For the last ten years I've been conducting research on the history and legality of Immigration and Customs Enforcement (ICE) and its contractors paying $1/day to those in civil custody for work vital to the operation of the detention facilities. 

I've reported on the program's effects on U.S. citizens such as Mark Lyttle and others in ICE custody, the extent of the payments and their contributions to GEO and CCA (now CoreCivic) profits, the first lawsuit filed in Denver, the class certifications, and the positive treatment of these and subsequent cases by judges and appellate courts across the country.  (See other links at end.)

Today, almost six years after FOIA litigation to obtain e-mail behind the program, and following an order by Judge Harry Leinenweber telling ICE its "messaging communications" must be produced,  we now may have a proverbial smoking gun: 2014 e-mail from ICE's Director of the Office of Detention Policy and Planning (ODDP) challenging ICE's reliance on the 1979 appropriations bill for justification of the work program's $1/day wages, first disregarded and then, according to subsequent e-mail in this release, adopted as the agency's interpretation of appropriations policy for the ICE work program.

On May 1, 2014, ICE Director of ODDP Kevin Landy writes:
As indicated yesterday, I question the accuracy of this statement:
[']Facilities are reimbursed a minimum of $1 per day by ICE per Congressional appropriations standards.[']   Has someone concluded that the 1979 appropriations provision remains binding on ICE in perpetuity?  I don't think that's typically true for language inserted in appropriations bills. 
The subject heading is "NYT materials," presumably prompted by Ian Urbina, who was researching this article published on May 25.  Landy sent it to Barbara Gonzalez in the ICE public affairs office, as well as to other high-ranking officials, including Tae Johnson, then Assistant Director for Custody Management, Enforcement and Removal.  

On May 2, Ian Urbina received a statement claiming the Congressional appropriations standards justifying the work program identical to that proposed on May 1, suggesting ICE's colleagues rejected Landy's analysis.  The paragraph Landy challenged (and Urbina received) states:
Facilities that house the overwhelming majority of ICE detainees provide compensation for participation in voluntary work programs.  Facilities are reimbursed a minimum of $1 per day by ICE per Congressional appropriation standards. As of April 2014, the majority of those participating in some sort of voluntary work program -- well over 95% -- were provided monetary compensation.
Urbina's article was published on May 24.  

On May 27 at 3:34 p.m. Gonzalez proposed a response to questions from Telemundo, Univision, and Entravision triggered by Urbina's article.  The new statement, cleared by DHS, no longer included any reference to the Congressional appropriations authorization for the program.
 

At 10:39 p.m. that same day, in case one was not clear about the new version's rationale, Gonzalez sent an e-mail stating, "Sir, Per ERO, we struck this part of the background section: 'per Congressional approprations standards." (Emphasis added.)

Crucially, among the recipients was Thomas Homan, who became the acting director of ICE under Trump.  Homan's correspondence with GEO shows him rebuffing GEO's efforts for ICE to cover GEO's legal fees for the class action litigation over the firm's minimum wage and other labor violations, another indication Homan and his colleagues were fully aware that DHS and ICE did not find the 1978 appropriations bill for 1979 appropriations authorized the dollar/day payments for the ICE work program.
 
(ICE redacted the May 2 paragraph on the Congressional appropriations act in its release to me on Friday.  Fortunately, I have a previous FOIA production including the correspondence to Urbina from a prior FOIA request and this paragraph is not redacted; if I did not have this other release, the recent redaction would have made it impossible to document the change between the ICE statement of May 2 that included the 1979 appropriations rationale and the May 27 e-mail revoking this interpretation.)

In short, the release on Friday tells us that in addition to three federal judges, ICE itself since 2014 has rejected the claim by GEO and misleading statements by its own officials about the program's legal authorization in the appropriations act of 1978.  
 

Recently, the State Department's annual Trafficking In Persons report has made note of the litigation (p. 529).  Details on the legislative history of the program and its violations of the FLSA are available here; episodic scholarly publications, reports, and media coverage of the litigation are available via the Deportation Research Clinic, Buffett Institute for Global Affairs, Northwestern University.  

Thanks to Nicolette Glazer for her fabulous work in drafting motions to obtain the order for these materials to be re-reviewed and unredacted.  And thanks to Andrew Free for assistance in the initial FOIA litigation and brilliant work on the actual class lawsuits now underway.

Finally, none of this would have been possible without research assistance from Matthew Casler, Daisy Conant, Grant Li, Khadeejah Milhan, Caleb Young, and numerous other students who diligently tracked the redactions for us to challenge. Thanks also to the Buffett Institute, Posner Fellow Program, and Political Science department at Northwestern University for their support. 

Stay tuned for more analysis -- trying to upload entire file but server glitch.
6/22 update  -  93 page release now available here
Menocal brief from 6/30/2020 referencing new release here.

Friday, April 17, 2020

Updates on ICE Work Program Violations - FOIA Litigation b(5), b(6), b(7) Order and GEO-Karnes TRO Motion




In an order issued on April 8, 2020, Judge Harry Leinenweber (Northern District of Illinois, Eastern Division) ruled that the b(5) predecisional exemption is for policy decisions, not "how to spin its prior decisions":
...ICE’s internal communications about its responses to outside inquiries from the press, Congress, advocacy groups, and the public are not protected by the deliberative process privilege. From the Vaughn index descriptions and a review of the reprocessed supplemental production, ICE merely deliberates over which agency subpart should handle an inquiry and/or how to spin its prior decisions about the detainee volunteer work program and general operation of ICE detention centers. Those communications do not qualify as facilitating/informing a final agency decision or performing a deliberative function specifically assigned to ICE.... 
ICE must show that the messaging communications are so “intimately bound up with [the] agency’s central policy mission” to warrant protection. New York, 2018 WL 4853891, at *2. ICE does not make that showing here.... 
ICE’s Vaughn index descriptions and accompanying declarations do not demonstrate that these communications relate to anything other than rationalizing the agency’s final decisions. Thus, disclosure would not reveal the deliberative process behind not-yet-finalized policy decisions. Some of the redacted portions also appear to be pure facts and data that ICE solicited from its private jail operators. This kind of information is not protected by the deliberative process privilege. Nat’l Immigrant Justice Ctr. v. U.S. Dep’t of Justice, No. 12-CV-04691, 2018 WL 1508531, at *5 (N.D. Ill. Mar. 27, 2018) (citing Enviro Tech, 371 F.3d at 374) (noting the deliberative process privilege “typically does
not justify the withholding of purely factual material”).
(Case 1:14-cv-03305 Document 144, Filed: 04/08/20 Pages 17, 18, 19.)
The judge also rejected ICE's b(6) and b(7) arguments and ordered the agency to unredact the names of ICE officials who participated in these deliberations:
 ICE itself distinguishes between “personnel record files” and the emails at issue here. (Def.’s Reply at 8.) Yet, ICE argues that the names it redacted are protected because they belong to lower level employees. ICE labels these employees as “support staff.” (Id.) Generally, support staff provide administrative assistance to agency managers and would not have job titles like “Deputy Chief,” “Chief of Staff,” “Deputy Field Office Director,”or “Senior Advisor.” (Reprocessed Prod. at Supp. 105, 109, 138, & 299, Fuentes Decl., Ex. D, Dkt. No. 132-1.) Such titles indicate some level of managerial authority. Even if such employees were support staff, ICE overstates the authority supporting these redactions and fails to cite any case binding on this Court or directly relevant to these circumstances. See, e.g., Skinner v. U.S. Dep’t of Justice, 744 F. Supp. 2d 185 (D.D.C. 2010) (upholding redaction of law enforcement and support staff names, among others, from documents related to specific investigations under Exemption 7(C)); Associated Press v. U.S. Dep’t of Justice, 549 F.3d 62 (2d Cir. 2008) (withholding name redactions from a commutation petition under Exemptions 6 & 7(C)). Thus, Exemption 6 does not permit ICE to withhold the redacted federal employee names. As for Exemption 7(C), the Court asks whether these emails were “compiled for law enforcement purposes.” 5 U.S.C. § 552(b)(7)(C). While ICE is obviously a federal law enforcement agency, not every document ICE produces or amasses has been “compiled for law enforcement purposes.” Id. “Courts have generally interpreted Exemption 7 as applying to records that pertain to specific investigations conducted by agencies, whether internal or external, and whether created or collected by the agency—in other words, investigatory files.” Families for Freedomv. U.S. Customs & Border Prot., 797 F. Supp. 2d 375, 397 (S.D.N.Y. 2011) (collecting cases interpreting Exemption 7). The documents at issue are not investigatory files.
(Case 1:14-cv-03305 Document 144, Filed: 04/08/20 Page 25-27.)
Many thanks to Nicolette Glazer for her terrific briefing on this and other cases carrying on the litigation Andrew Free initiated on my behalf in 2014, when he filed a complaint to enforce my rights to documents about the contracts between Immigration and Customs Enforcement and the prison firms GEO and then-Correction Corporation of America, now CoreCivic.

GEO Karnes TRO
The FOIA litigation against ICE produced documents from which I quoted and linked in a law review article on the labor and employment law violations by these firms and was used in class action litigation against GEO and CoreCivic.  Federal judges and appellate courts have ruled against GEO and CoreCivic and the cases are going forward.

On April 6, 2020, attorneys filed a motion for a Temporary Restraining Order on behalf of "those subject to the Housing Unit Sanitation Policy (HUSP)."  The motion points out that
The living conditions encourage the rapid transmission of the virus and exposure to COVID-19 throughout the GEO facilities. And yet, GEO’s HUSPs still force Class Members to clean the epicenter of COVID-19’s spread at its facilities—the common spaces. GEO provides no protection to these workers, so they are unnecessarily exposed to COVID-19 because of GEO’s HUSP program. The circumstances call for immediate action to protect the Class Members where their ward, GEO, has completely failed.  5:17-cv-02514-JGB-SHK Document 252-1 Filed 04/06/20, pages 7-8.
Other cases in this litigation continue to move forward, including that of the nation-wide class of those alleging state and federal labor and trafficking law violations in the case against the GEO facility in Adelanto, California.

Friday, November 22, 2019

Dems Pass Giveaway to Tech Firms, Violate House Rules



 Sign at Trump Women's March, Dems Aiding and Abetting


UPDATE: Portions of this post appeared later in an article revealing Rep. Lauren Underwood's true colors published on January 4, 2020 in The Intercept: "Democratic Representative Pushed to Create a Massive Migrant Health Database that No One Wants.

Proclaiming solidarity with health care providers assisting arriving noncitizens at the border Rep. Lauren Underwood (D-IL) in late September urged her colleagues in the House to vote for  a measure that will create a mammoth health and biometric database, generate wealth for the private contractors who will run these systems, and obligate no actual medical care for anyone.

H.R. 3525 U.S. BORDER PATROL MEDICAL SCREENING STANDARDS ACT passed largely under the radar of established immigrant and civil rights groups and lawyers.  It was sold to fellow Dems as a bill that would combat the inhumane conditions at the border and help save lives, especially those of children. And yet while other bills the House passed actually do this (and will go on to die in the Senate), Underwood's bill does nothing other than mandate screening - not treatment - protocols and the creation of a massive database with no rules for privacy, data correction, consent, and NO BUDGET.

Congressional rules require bills provide a clear statement of their costs.  The report for HR 3525 includes a section to conform with this:
Congressional Budget Office Estimate New Budget Authority, Entitlement Authority, and Tax Expenditures With respect to the requirements of clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the Committee adopts as its own the estimate of the estimate of new budget authority, entitlement authority, or tax expenditures or revenues contained in the cost estimate prepared by the Director of the Congressional Budget Office.
However, instead of a bona fide analysis of the proposed bill by the Congressional Budget Office, the Report for HR 3525 uses an analysis of an entirely different bill, one passed in 2002:
H.R. 3525--Enhanced Border Security and Visa Entry Reform Act of 2002
CBO estimates that H.R. 3525 (enacted as Public Law 107- 173) will result in no significant net cost to the federal government. The act will affect direct spending, but we estimate that any net effects will not be significant. H.R. 3525 sets the amount of the machine-readable visa (MRV) fee at $65 and establishes a surcharge of $10 for issuing an MRV in a nonmachine-readable passport...
When I first read this I figured that the current HR 3525 was amending the Act from 2002 and would be relying on visa fees.  Why else would this analysis be here?  That said, I was curious as to the amount the CBO estimated it would cost to operationalize the program Rep. Underwood proposed and contacted Underwood's office, the Homeland Security Committee staff, and the CBO a couple weeks ago and requested they provide this information.

I'm still waiting.

To be clear, the rules require the inclusion of this information from the CBO in the House Report.

In the meantime, the floor debate underscores that the Majority Report is just plain wrong.  Mike Rogers (R-AL), Chair, Homeland Security Minority Committee in his floor speech on September 26, 2019 stated: "We have no idea how much this bill will cost because the majority failed to file a cost estimate from CBO."

Later, Rep. Jim Jones (R-IN) highlights the omission and the error:
There is no score or cost estimate whatsoever. The score that was filed is from the Enhanced Border Security and Visa Entry Reform Act of 2002, which is completely unrelated.  
We are being asked to vote on this legislation blindly. Based on the experience of institutions similar in size to CBP that have implemented EHRs, the price tag could easily run into the billions. Five to 10 years is a realistic timeline, not 30 days.

Altogether, I think this is a mistake, even if well-intentioned.
Also, Rep. Underwood asserts that the bill has the endorsement of Homeland Security itself.

And yet Rep. Rogers stated DHS opposed the bill as did the administration:
Mr. Speaker, I am curious about the announcement that the administration is in support of this and is working toward this, because they have already issued an announcement that they oppose this piece of legislation. So, if it did pass, it would be vetoed by the President.
Underwood is extolling to her colleagues the importance of an "evidence-based approach" to immigration law enforcement.  And yet she has failed to respond to the evidence of an error in a report for a bill she championed.  She seems also to have mispresented the official position of the agency she claims will be enacting it.

This is a pretty simple object-lesson in the gap between collecting information and using it for the greater good.   If Rep. Underwood cannot insure the accuracy of a Democrat-drafted Committee report on her own public bill after it has been scrutinized on the House floor and its errors clearly highlighted to the entire world via C-SPAN, that seems to be pretty good evidence on the failures of her logic about the importance of evidence for its own sake and the merits of HR 3525.  If a member of Congress cannot or will not act on clear evidence of an error after being aware of this for several months, why expect that information secretly collected and used by border agents and others in law enforcement will be accurate or used properly? 

The really sad part is that Democrats overwhelmingly supported Underwood's flawed bill, even though not a single member can tell you how much taxpayer money could be going to the coffers of Homeland Security contractors such as General Dynamics, 360 IT Integrated Solutions, or CASI Federal, Inc., or how exactly the data will be used or could be misused.

I am hoping to learn more about this bill and will publish more later, but wanted to make this information available to others following the role of interoperable databases and artificial (as in pseudo) intelligence in today's idiocracy.

Thanks to Daisy Conant and Pranav Baskar for assistance in reporting. 

Monday, August 5, 2019

Schroedinger's Citizen


"For the foregoing reasons, the Department is prepared to conclude Juan acquired U.S. citizenship automatically under INA Section 321, 8 USC §1432 on April 26, 1988." -- Memo of July 8, 2019

links to Juan's memo and previously unreleased State Department Memorandums interpreting 8 U.S.C. 1432 below

courtesy of Wikipedia
On July 8, 2019, the State Department announced that a deported alien was a U.S. citizen and would be issued a U.S. passport.  Juan had been waiting for this news for thirty years, over a decade of them in exile from his home and family.

Juan was born in Colombia.  When he was two years old he moved with his parents to Miami as a legal resident.  In 1987, when he was 11, Juan's mother naturalized.  Shortly thereafter his parents divorced. Juan received a notice from US Citizenship and Immigration Services giving him an appointment slot for receiving his Certificate of Citizenship.

Juan figured the government set up the appointment for his Certificate because the official who organized his mother's naturalization knew she had a son and the son was a legal resident and had derived U.S. citizenship via his mother's naturalization.  (Juan's brother was born in the United States and his father was a legal resident who did not naturalize.)

Juan showed up at the federal building in Miami with a relative, but his name was not on the list.  He showed his appointment card to an official.  She asked to see his mother, who was not with him. He went home and figured they'd sort it all out later. 

After Juan turned 18 he submitted an N-400.  And then another, and another, and another. He told me, "Apparently for some odd reason my A-file never left its repository.  The INS officials could never give me a clear explanation of what went wrong."  (An N-400 is the form for legal residents who want to become naturalized U.S. citizens.  You have to take a civics test most people born here would flunk and go through a criminal background check.  If you are already a U.S. citizen, as the State Department now recognizes was the case for Juan, it's like completing all the coursework through the twelfth grade with passing grades and then signing up for the G.E.D. instead of just filling out the paperwork for your diploma, the equivalent of which for a Certificate of Citizenship is the N-600.)

In 1996, when Juan was 21, Drug Enforcement Agents nabbed him for transporting $275,000.  They released him after the confiscation of the currency.  

Juan obtained a degree in Electronics and Engineering Technology in 2002 and worked in that industry until 2006, when he once again attempted to procure his Certificate of Citizenship through an N-400.  The examiner explained that he also was eligible for "derivative citizenship."  Juan says:
 I had no idea what she meant by the terms 'derivative citizenship,' so I just told her to proceed with the N-400.  Out of all the mistakes that the government has made, this seems to me by far the most crucial and devastating.   The examiner should have went through the path of derivative citizenship and not offer me another option.
The 2006 visit to the federal building entailed fingerprinting.  This alerted the feds to Juan's prior arrest and upon leaving the examiner's office he was charged with money laundering and taken into custody.

Juan served his sentence of one year and one day, reduced by the judge from the plea deal he had accepted for four years.   

In December, 2006, Juan was driven five hours from an ICE facility in New Mexico to the El Paso Processing Center.  He told me that in the courtroom, before the hearing officer arrived, the ICE attorney "approached us and said 'Hey, Juan, I know you're a U.S. citizen.   I have all the evidence and you satisfy the conditions. I'm not going to object to the evidence you provided.   The last thing I need is a civil suit for deporting an American citizen.'"  

But a few minutes later, the hearing officer, Thomas Roepke, ordered Juan deported.  "The IJ claimed that I was removable due to the fact that my mother did not have sole legal custody.  My lawyer, the DA [ICE trial attorney], and myself were shocked to hear the outcome."

Juan remained only a month in Colombia.  "I feared for my life.  My mother was kidnapped in Buga, 1997."  Juan still does not know what became of her.  "Her husband was found dead about two weeks later."  Juan moved to Germany with his brother, who was in the U.S. Army.

A few weeks ago Juan received a phone call from the U.S. Embassy in Madrid.  A consular official told him, "Things have changed, Juan, for the better."  Soon after, Juan obtained his U.S. passport. 

The State Department's analysis lays out how this happened.  It is a model of legal clarity.  The official quotes from the relevant case law, administrative decisions, and memorandums on derivative U.S. citizenship.  Juan wanted me to post the letter in its entirety because he knows it will help many others who find themselves in this situation.  (It will be especially helpful to folks in the Eleventh Circuit who were under 18 when just one parent naturalized and their parents divorced and had joint custody.)

Ambiguous Categorical Representations
"Schroedinger's Cat" is a thought experiment created in 1935 by physicist Erwin Schroedinger to illustrate what he claimed was the paradoxical absurdity of a potential condition that simultaneously has two mutually exclusive attributes, e.g., a cat being alive and dead. Citizenship law reflects this. At any given point one either is or is not a U.S. citizen. And yet, consider the following regulation:
 An alien whose claim to lawful permanent resident, refugee, asylee status, or U.S. citizen status cannot be verified will be advised of the penalties for perjury, and will be placed under oath or allowed to make a declaration as permitted under 28 U.S.C. 1746, concerning his or her lawful admission for permanent residence, admission as a refugee under section 207 of the Act, grant of asylum status under section 208 of the Act, or claim to U.S. citizenship.  A written statement shall be taken from the alien in the alien's own language and handwriting, stating that he or she declares, certifies, verifies, or states that the claim is true and correct. From 8 CFR § 235.3 - Inadmissible aliens and expedited removal.
Of course if "the alien"  is a U.S. citizen, then a U.S. citizen is verifying her U.S. citizenship.  Like Schroedinger's cat, the alien of the regulation may be a citizen, and not even a dual citizen, in the case of those who are born in the United States and have been deported, such as Pedro Guzman, Mark Lyttle, and Roberto Dominguez.

Subsequently, philosophers argued such a scenario was not at all absurd.

Paradoxes about knowledge are abstract.  The legal analysis of the meticulously documented 13-page single-spaced memorandum is concrete:
Although the Property Settlement Agreement attached to the final Order of Dissolution provides for 'shared parental responsibility' for the children (Juan and his sibling), which falls afoul of the sole legal custody requirement announced in Bustamante-Barrera, 1) the Department maintains that the legal custody requirement of former INA 321(a)(3) is satisfied even if the parents are awarded joint custody (See TABS 11 and 16); and 2) two DHS/USCIS Administrative Appeals Office (AAO) opinions (albeit one non-precedential) have since concluded that Bustamante-Barrera does not apply in the 11th Circuit which is where the events giving rise to Juan's citizenship claim under INA 321 took place (specifically, Juan's mother's naturalization, the dissolution of the marriage of Juan's parents and Juan thereafter residing as a legal permanent resident with his mother in Florida after the dissolution of his parents' marriage on April 26, 1988 when he was 12 years old.
TAB 11 refers to a 1996 State Department Passport Memorandum 96-18.   The Memorandum suggests that the interpretation of custody by the Department of State goes back to the previous version in 1993.
Legal Custody
The  Department  has  not  changed  its  interpretation  of  what  constitutes  'legal  custody[.]'  As  stated  in  the  referenced  Bulletin,  in  cases  where  the  divorce  or  separation  decree  does  not  specify  who  has  custody  and  the  naturalized  parent  has  physical  custody,  the  child  can  be  documented  as  a  citizen  under  Section  321(a)(3)  provided  that  all  other  conditions  of  the  law  are  met.  Section  321  does  not  require  sole or exclusive legal custody. If the parents have a joint custody  decree,  then  both  parents  have  legal  custody.  Thus,  the  naturalization  of  either  parent  would  be  sufficient  to  satisfy  the  Section  321(a)(3).  If  there  is  a  specific  question  about  the  sufficiency  of  legal  custody  evidence,  OCS, PPT and INS agree that we should review the matter on a case by case basis. (Emphasis added.)
As State notes in its recent memorandum, this interpretation since 1993 conflicts with the decision in Bustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006).

One thought would be that the statutory interpretation of the Fifth Circuit supersedes an agency.  The agency seems to concede this is the case for the Fifth Circuit and the Ninth Circuit, which cited Bustamante-Barrera and decided similarly in U.S. v. Suchite-Casola 670 F. 3d 1023 (9th Cir. 2012).  Memo pp. 5 - 7.

Bustamente-Barrera did not consider the State Department Passport Memorandum.  Suchite-Casola did:
We must conclude that the non-precedential, BIA statutory interpretations are not worthy of any deference, because they conflict with the words and obvious meaning of the statute. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004) (refusing to grant any deference when the agency decision was "contrary to the plain and sensible meaning of the statute" and would lead to an irrational result). Indeed, the only authority cited by the BIA from the time § 1432(a) was in effect is an unpublished 1996 Passport Bulletin issued by the State Department, an agency that does not enforce these immigration laws. The BIA's additional reliance on regulations later adopted by the Department of Homeland Security to implement the CCA is unpersuasive, because the CCA superseded the controlling statute in this case. Rather than follow unpublished, BIA decisions unworthy of deference, we instead give the statute a sensible interpretation and thereby agree with the only circuit decision that has addressed this issue, the Fifth Circuit's decision in Bustamante-Barrera, 447 F.3d at 395-96.
A couple thoughts.  First, the authority for this interpretation is not solely the 1996 Passport Bulletin.  As quoted above, the 1996 Bulletin actually references back to an earlier version of the Bulletin, from 1993.  The State Department also reiterated this policy in 2013.   In other words, on at least three separate occasions State Department staff have interpreted the statute consistent with the plain text and to align with the needs of U.S. citizens.  This is the agency that is doing the hands-on work of implementing the law.   Typically judges defer to such practices unless they are clearly at odds with the text or absurd.  The State Department interpretation is neither. 

Here is the text in dispute.  It indicates that if the following criterion is met, a child under 18 who entered as a legal resident automatically derives U.S. citizenship by operation of law.
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents...
Juan's mother naturalized.  Shortly thereafter his parents legally separated.  His mother had physical and legal custody of him, though it was joint legal custody.   The judges claim that State Department interpretation "conflict[s] with the words..." but the plain text does not support this claim.
 
Second, which interpretation is irrational?  One that separates U.S. citizen parents from their children, and siblings from each other, or one that keeps them together?  The judges in Buastamante-Barrera  and  Suchite-Casolaare are considering Schroedinger's citizens, i.e., the uncertainty and ambiguity of citizenship status, to be the "irrational result." The State Department officials are saying that what's really irrational is creating certainty by killing the cat.  To avoid this, the State Department is interpreting the law such that people who could be U.S. citizens - the law's plain text does not require sole custody of the naturalizing parent - are U.S. citizens. 

Third, as a matter of law,  Suchite-Casola seems to misstate the division of labor between the State Department and Homeland Security.  To the extent that Homeland Security enforces immigration law, as the Ninth Circuit opinion notes, it does so based on a prior finding of who exactly is a U.S. citizen. If the State Department and U.S. Citizenship and Immigration Services use criteria to define a U.S. citizen, then to enforce the law means not deporting U.S. citizens, and does not empower the agency to invent its own criteria.  If the courts are going to defer to any agency's interpretation of U.S. citizenship for those who are foreign-born, then it should be first to the State Department and then U.S Citizenship and Immigration Services.

Now that the cat is out of the bag, what happens next?  One thought is that many other wrongfully deported U.S. citizens will be able to make use of the State Department analysis here.  Another is that Trump apparatchik Mike Pompeo will want to deprive as many people as possible their U.S. citizenship and change the directive, even if it means a soldier in the U.S. army cannot live near his older brother, and the reversal would be at odds with over 25 years of policy, and prompt court challenges on several grounds, including for violating the Administrative Procedure Act.

Is the irrationality in U.S citizenship statutes their ambiguity, or that racist governments weaponize our complex biographies for scurrilous political agendas?  It is easy to be distracted by the confusion of birthright citizenship laws and their shifting standards of evidence.  Juan's ordeal persisted under the presidencies of Ronald Reagan, Bill Clinton, George Bush, Barack Obama, and Donald Trump, under whose leadership Juan finally was declared a U.S. citizen.

The real problem is birthright citizenship itself, jus sanguinis and jus soli, that is, the discrepancy between a citizenry produced capriciously through narratives of family history, birth, and lines in the sand irrelevant to good governance and a citizenry of those who distinguish themselves by vows to uphold the rule of law
 
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