Friday, September 12, 2014

'What HE Said!': Eastern District of Louisiana Judge Affirms Plaintiff Brief, Denies Government Motion to Dismiss Deported U.S. Citizen's FTCA Claims

On August 4, 2014 Andres Robles, through his attorney Andrew Free, went on record with a motion explaining why the court had jurisdiction to hear his case under the Federal Torts Claims Act.

Two days later district court judge Carl Barbier in Louisiana endorsed it.

The one-line decision states: "For the reasons outlined in Plaintiff's Opposition, IT IS HEREBY ORDERED that the government's Motion to Dismiss for Lack of Jurisdiction (Rec. Doc. 18) is DENIED."

(Free's 15-page motion is instructive reading for anyone wanting to sue DHS for malicious prosecution.  See below for full pleadings.)

U.S. citizen Andres Robles may pursue redress for his country's refusal to recognize him as a citizen, leading to his detention, deportation, and further Kafkaesque ordeals from the persistent incorrect entries in federal databases.

For the original complaint and background, please go here.

The more recent motions from July and August, 2014 are here:

Government Motion and Exhibit (Defense/dates of filings)
Memorandum in Support of Motion to Dismiss (07/25/2014)
Exhibit-Acuna Declaration, noting June 2014 update of records (07/25/2014)

Andres Robles Motion and Exhibits (Plaintiff/dates of filings)
Response In Opposition to Motion to Dismiss (08/04/2014)
Exhibit 1- Order in Ortega (08/04/2014)
Exhibit 2- Order in Ibrahim (08/04/2014)

Judge's order

For details on Andres's case from when States Without Nations broke the story based on information from outraged attorney Larry Fabacher, please read the Andres Robles tag, which includes his
interview by NPR's Story Court (along with his sister Maria) and his interview on Al Jazeera English.

(Full disclosure: lucky for me, Andrew Free also is my FOIA attorney.)

Sunday, May 25, 2014

New York Times Story on ICE Detention Center Slave Wages

photo Ramin Rahimian, for the New York Times

Check out the New York Times article by Ian Urbina, "Using Jailed Migrants as a Pool of Cheap Labor." 

If you want to read more about the program's legality and history, here's the working paper I posted last week on the Social Science Research Network, "One Dollar Per Day: The Slaving Wages of Immigration Jail Work Programs - A History and Legal Analysis, from 1943 to Present."   (posted May 15, 2014, 160 pages).  

From the abstract:
This Paper evaluates the legality of the $1 per day payments for work performed by those in custody under immigration laws as well as its genesis. In 1941, President Franklin Roosevelt issued an order moving the Immigration and Naturalization Service (INS) out of the Department of Labor and into the Justice Department. During this same time frame, the U.S. Government established internment camps for "enemy aliens," i.e., civilians in the United States and other countries in Latin America who were or were imagined to be citizens of Axis powers. In 1943, the Justice Department paid those so held 80 cents per day for their work performed in the camps; the average daily cost of each person's detention in 1943 was one dollar. This was the origins of the 1950 law authorizing paying those in custody under immigration laws for work performed. If those in immigration custody today were paid at the ratio from 1943, they would be earning about $80 per day. This paper draws on government documents and contracts obtained under the Freedom of Information Act as well as the program's implementation and history as the basis for a statutory analysis of the Government's defense of its legality. The Paper argues that under a reading of the relevant laws' plain meaning, legislative history, and purpose, the program appears to violate various labor laws and the Fifth, Sixth, Thirteenth and Fourteenth Amendments.
For entire paper, please go here.

Sunday, May 11, 2014

Port Isabel Detention Facility Overcrowded, ICE Vows to Continue Violating Prison Standards, Only 10% Have Convictions

Recent contract documents reveal the Texas Port Isabel Detention Center is subjecting the average 1115 people it locks up each night to overcrowding, and that 90 per cent of them have no criminal records.

On February 11 and 12, 2014 representatives from several private prison firms visited the Port Isabel Facility.  Then they submitted questions, to assist in them preparing bids.   You can read the Q and A here.

The contractor question published here does not mention the precise level of overcrowding but it appears to be a) systemic; and b) of no concern to ICE.

This is important not only because of the inherent problem of subjecting those in civil detention to conditions deemed impermissible for criminal punishment, and not only because of ICE indifference to this.  This is the answer ICE gives to private prison firms, authorizing their violations but it is not the answer ICE gives Congress and the American public.  By ICE insisting that its facilities meet the American Correction Association standards for criminal inmates, for instance, in its Annual Performance Reports to Congress (see U.S. Department of Homeland Security Annual Performance Report for Fiscal Years (FY) 2012 – 2014) ICE is just lying. And when ICE tells the contractors that the agency has no intention of following the ACA standards for bed space, it is sending a signal that the agency may condone violations as well.

 If ICE can't be trusted to adhere to basic quantifiable standards such as bed occupancy, and to accurately represent their non-compliance in their communications with Congress, including their budget proposals, this is further evidence of the need for ending detention under immigration laws altogether.

The demonstrable problem is too many beds, but absent their actual use there would appear to be no reason for ICE's commitment to the noncompliant infrastructure. Moreover, ICE can't credibly tout its adherence to ACA standards and then slough off those that it deems superfluous.

On the one side of the practice are the harms being committed every day by the government, including false imprisonment of U.S citizens and their banishment, as well as corrosion of the rule of law.  On the other side, well, immigrants, economists, and human rights professionals agree there is no upside to this.

Also, of interest is that 90% of those held at the Port Isabel facility have no criminal history whatsoever.

Definitions (from ICE Statistics):  "Level 1, Level 2, and Level 3 offenders. Level 1 offenders are those aliens convicted of "aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as "felonies." Level 2 offenders are aliens convicted of any other felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors." Level 3 offenders are aliens convicted of "misdemeanor" crime(s) punishable by less than one year. Prior to FY 2011, ICE used SC levels 1, 2, and 3 for prioritization purposes."

Wednesday, May 7, 2014

DHS and Private Prisons Refuse to Release Records on Dollar Per Day Wages Paid to ICE Residents, FOIA Lawsuit Filed

The last year I've been conducting research on the legality of ICE contracts authorizing private prisons to meet performance goals by paying one dollar per day to the people they're locking up.  ICE is not forthcoming about the program and it has not responded to my FOIA requests submitted in the summer and fall of 2013.  

Current insights into the program are possible because a couple years ago I received a partial response to a FOIA request documenting ICE and private prison firms paying those in ICE custody one dollar per day.  In the wake of that release, reporters have followed up.  In fact, there have been intermittent reports on this since 2009, when journalist Susan Caroll described the program in an article in the Houston Chronicle.  

The government says the program is legal, but the scope and profits made by the private prison firms go well beyond the program's official description and are shocking. For instance, the 2012 Krome Facility Request for Proposals lists shifts for "detainee workers" alongside those paid prevailing local wages under the Service Contract Act.  The labor is a crucial part of running these detention centers.  

Note that there are 10 "detainee workers" per breakfast, lunch and dinner, for a total of 30 workers each day, but only eight legally paid employees assigned to the breakfast shift, and just six for lunch.  AKAL Security, which runs, Krome, relies exclusively on its resident labor force to serve dinner. In other words, most of its food service is performed by the folks it has locked up; whereas it is paying the outside workers $30 for a couple hours of work, it is paying 30 people for three shifts just $30 total.

This is arguably legal for criminal prisoners.  But the U.S. citizens and other residents ICE locks up are in civil detention and not  for punishment or rehabilitation.  There is a law that authorizes the government paying for this work, 8 USC 1555 (d); it comes out of the World War Two internment camps for civilian "enemy aliens" and prisoners of war .  If ICE paid people today at the same level it was paying those locked up in World War Two, the payments would be around $80 per day.  (INS was paying people 80 cents a day; the average daily cost in 1943 of detaining each person?  One dollar a day.)

Congress has outlawed hiring non-citizens to pick tomatoes for minimum wage.  Meanwhile, private prisons are reaping enormous profits by hiring at slaving wages residents, some U.S. citizens, most undocumented, for staffing facilities under contract to the federal government.  Providing super profits to a select sector, the program is artificially sustaining the private prison industry and their lobbyists, and thus also distorting federal immigration policy.

The only legal footing ICE has for the program is an ad hoc decision by a federal district court judge in 1990 that was copied and pasted into a Fifth Circuit opinion, Alvarado Guevara v. INS , 902 F.2d 395 (5th Cir., 1990).

Here's the complaint drafted by Attorney Andrew Free.  It includes a succinct description of the program's history and documents areas of concern.  I will release the working paper shortly.

Wednesday, April 9, 2014

Al Jazeera Covers Deportations of Esteban Tiznado and Andres Robles

Oysterman Andres Robles, acquired US citizenship in 2002 when 14 years old, 
deported in 2008, 
Social Security number still not cleared in E-Verify

Adam Raney of Al Jazeera television put together a terrific segment documenting the deportations of Esteban Tiznado and Andres Robles, whose stories were first reported here.  For background on Esteban's case, read here; for more on Andres, read here.

On behalf of Andres, Attorney Andrew Free filed on March 26, 2014 a complaint requesting the federal government fully rectify its mistake and also award damages.  The complaint provides a terrific narrative of Andres's ordeal.  It also adds to the database of federal immigration lawsuits and judicial orders in which the word "Kafkaesque" appears.  (Attorney Free also represents me in FOIA cases, though not any involving Andres.)

Esteban is now finishing up a short sentence in the custody of CCA Central Arizona, part of their vertical integration plan: first they lobby Congress for a 34,000 bed/night mandate;  ICE, incentivized to fill these beds, assesses agent performance on the basis of the quantity of arrests, not whether they are lawful; then, when US residents, many unlawfully deported, try to return, they end up in CCA's federal prisons, after convicted of Illegal Reentry (18 USC 1326)  - this being the population that has long surpassed drug offenders as the largest group in federal custody.

Next week Esteban again will be released from criminal custody, again deported, and again attempt to return home.  Each time he is locked up his body becomes weaker, but his will to return home remains as strong as ever.

Correction: An earlier version indicated Andres still had not obtained his Social Security card.  This is not correct.  He does now have his card.   In the years following his return from Mexico, Andres and his sister Maria had r attempted to obtain a social security card for him,  but it never arrived.  Each time they were told to fill out a new application.  After several attempts over more than a year, the card did finally arrive; however, the linked databases mean any E-verify inquiry will indicate his deportation and thus the wrongful deportation may continue to pose problems for him.

Wednesday, April 2, 2014

Houston DHS Trial Attorneys Assert Criminal Convictions as Grounds to Hold Respondent, Ignoring Probative Evidence of US Citizenship

From Board of Immigration Appeals on Robinson Martinez, February 12, 2014, pertaining to his claims of automatically acquiring US citizenship at birth

DHS is agreeing to a change of venue and to move Robinson Martinez, who has been in ICE custody for over two years, to Port Isabel, so that it will not be such a burden for his family to come and testify.  But DHS is opposing Robinson's release.   In law and written policy, the DHS takes the position that it is unlawful to hold anyone with "probative evidence" of U.S. citizenship in custody under immigration laws.  But behind the closed doors of immigration courts they say whatever is necessary to avoid releasing people, relying heavily on innuendo about criminal convictions to obscure the specific legal question about citizenship.  

In a few hours in Houston, Texas, Robinson Martinez will take a brief absence from his expensive if not exactly swanky $120/night lodgings in the Correction Corporation of America's popular Houston facility to appear in a conveniently located adjacent immigration court.

Robinson's mission is to have his government finally recognize his U.S. citizenship and release him, something he's been dogging them to do since March, 2012, when he was transferred from a Texas prison to the CCA lockup in March, 2012.

But April 3, 2014 is different.  Today he will enter because last month's five-page single-spaced decision by the Board of Immigration Appeals told the Department of Homeland Security and immigration judge that they were "persuaded by the respondent's arguments" and remanding.  "The respondent has presented new evidence with his motion to remand which should be assessed by the Immigration Judge..." 

Robinson seems well on the way to being entirely vindicated: if he can prove that his grandfather conveyed US citizenship to Robinson's mother by proving his grandfather really was in the United States for two years after the age of 14 and before Robinson's mother was born -- he was, and signed a very detailed affidavit about living with his mother in the family home in Mercedes, Texas.  The BIA reasoning and remand suggest that the government made a grave mistake when it tried deporting him, and an even graver one in not allowing his freedom while he was trying to prove this.  

The BIA is saying it is persuaded by Robinson's legal argument and that he has new evidence that is important enough that an immigration judge needs to review it.  Robinson has his grandfather's Certificate of Citizenship and other documentation proving that his grandfather was a U.S. citizen at birth, as well as copious other affidavits, birth certificates, school records, adoption records, and much more that provide numerous overlapping verification of the facts the BIA said would prove his US citizenship.  

The immigration judge is not going to decide on the merits of the case today but the DHS can determine Robinson's release, and the immigration judge also can weigh in on this.   The Morton Memorandum on this point is clear:  ""In all case, any uncertainty of whether the evidence is probative of U.S. citizenship should weigh against detention."  Although directed to the DHS, it provides a statement about the law that should be taken into account by immigration judges in their bond determinations as well.  

The law against holding US citizens in custody under immigration laws is clear: it is never allowed, with no exceptions for criminal allegations, even for Ted Bundy.  Therefore, the DHS analysis of Robinson's criminal history -- which is itself a subject of dispute -- is completely irrelevant.  (The logic for this is fairly straightforward: if someone has either been charged or convicted, then criminal proceedings take care of this; the law for mandatory detention is for criminal "aliens" and not those who have persuaded the BIA they may well be US citizens.

Listen here as adjudicator Howard Rose on May 18, 2011 at the Houston Detention Facility screams at then pro se Robinson, who, over the televideo, is trying to explain he is a U.S. citizen and therefore should not be in deportation proceedings.   At one point he says he doesn't understand the proceedings and Rose says, "I don't care what you understand!" 

And listen here, where Rose at another hearing several months later is talking over Robinson about the rules of citizenship based on a fact-pattern that has nothing to do with the evidence Robinson was trying to present. Robinson's grandfather is not a "naturalized citizen," as Rose is insisting, but himself acquired U.S. citizenship at birth and had a Certificate of Citizenship with the AA on the top right hand corner that proves this. (Certificates for those who naturalize only have one A.)  

Above is what a Certificate of Citizenship looks like for someone considered a U.S. citizen at birth:

And this above is from the NATURALIZATION certificate of Robinson's mother

Both of these images are from the certificates in the file Howard Rose was looking at when began yelling Robinson.

Robinson's case has been heard by three EOIR adjudicators, two of whom have since resigned (Howard Rose and Jimmie Benton.)  They made a couple of poor decisions on which Immigration Judge Saul Greenstein relied and that seem plain wrong.   Not just that, Benton and especially Rose berated and insulted Robinson, including cutting him off and calling him "insolent" when Robinson, pro se, tried to explain the citizenship law that applied to his case.

Another point Robinson claimed in his appeal is about prejudgment, not only on the claim of his US citizenship but also the failure of the immigration judges to take into account the "mitigation exception" "because the information in the indictment does not allege any amount of drugs" (BIA 02/12/2014). As it turns out, the conviction record also does not state an amount.  

Over the next few days I'll be posting on how an ICE agent lied on Robinson's I-213 (arrest report); the abuse he and the rule of law endured at the hands of the immigration courts and ICE attorneys; and a factual record consistent with his assertion that he indeed is a U.S. citizen.

Of special concern is that on the first recording for 5/15/12 there is a reference to ICE sharing its legal analysis with Rose --  the ICE trial attorney (sounds like McPhail) says someone in his office is writing up a memorandum and he volunteers to show it, redacted, to the IJ.  However, there is no copy of this in the record.  This would seem to be illegal.  If the DHS wants to keep its internal briefings to themselves that's one thing, but to only show it to the immigration judge and not the opposing party is illegal and one of a littany of basic civil rights violations Robinson is now enduring.

Thursday, November 7, 2013

Ex-Immigration Judge Jimmie Benton to US Citizen: Go tell it to the government

 CAUTION: This Post Contains Digital Audio Material That May Be Offensive To Some Civil Rights Attorneys

Houston Correction Corporation of America
Immigration Courts, July 10, 2013

  Retired Immigration Judge Jimmie Benton
Highlights EOIR Management and Training Weakness

Frank Serna wrote me from Houston CCA in June, where he'd been locked up for 14 months.   An immigration judge in 2004 held a hearing and found credible his mother's testimony and other evidence of his U.S. citizenship and terminated proceedings, but in 2012 Immigration and Customs Enforcement ignored Frank's narrative and their own records and brought him in again.  He was surprised, "ICE picked me up in 2009 and let me go."  After a six month sentence in Laredo in 2012 for drug possession he thought he was free, "But then when I got out, ICE was there, and I was thinking, 'Why are they picking me up?'"

Obviously this just had to be a huge mistake.   Serna, whose best language is English, said, "It seemed like a last minute decision."  Once he was in an immigration court one he figure'd he'd explain everything and be released.

But that's not what happened.   On May 8, 2012 Immigration Judge Jimmie Benton said he heard the 2004 recording in which Immigration Judge Cary Copeland in Dallas had terminated the proceedings.  According to the records, the government had failed to prove Frank was an alien and waived appeal.

Mail box ICE Houston CCA Visitors, 10800 Export Plaza
 Benton ignored the prior termination order based on a full hearing and kept Serna locked up.  Benton implies Serna's failure to obtain a Certificate of Citizenship is grounds for holding him at CCA  But unlike most of the population, the government had already brought Frank to immigration court and failed to prove his alienage.  Thus Frank is the last person who should need additional documents from the government to avoid deportation hearings again.  The government already knew it lost its case. Unless it could show it was closed without prejudice or fit some other exception, their day in court had come and gone.

Entrance to Houston CCA Immigration Court, photo by Sam Niiro

At the hearing on May 8, 2012 Frank, without funds for an attorney, tries his best to stave off this unlawful and unjust deferral of his freedom.  He tries to squeeze in between Benton's interruptions the correct legal analysis to explain how the law and facts confirmed his U.S. citizenship, but Benton cuts him off,  "That's for the government to determine, that's not for you to determine.  If the government determines you are not a U.S. citizen you can try to convince me."

 In other words, in some strange legal world of his own creation, Benton had decided that immigration courts are not part of the government, and also that he could have another agency make a determination that under res judicata was his to make.

Listen for yourself

Andrew Free, Serna's attorney, said of the May 8, 2012:
I have rarely had such a visceral reaction to a piece of audio. It's just infuriating. I found myself screaming at the disembodied voice of the judge in my laptop. 
About a year later (May 31, 2013),  Benton "separated from the EOIR" according to Lauren Alder Reid, a public affairs official at the Executive Office for Immigration Review.  Benton says he retired.  On June 7, 2013 Houston Immigration Judge Saul Greenstein terminated proceedings on the basis of reviewing the 2004 recording and immigration court order at the time.  Under Benton, the hearings had dragged out for over a year and Benton ordered him deported.  Greenstein, aware of all this, held the first hearing on June 3, 2013 and four days later Serna was released.

With unlimited resources at its disposal, and backdoor channels to sway Citizenship and Immigration Services agents from issuing people like Frank Serna Certificates of Citizenship -- more on that later -- ICE is appealing Greenstein's order.
Frank picking up mail informing him government will be appealing the immigration judge decision to terminate deportation proceedings
 Frank is having a rough time finding work in Texas.  E-verify is not his friend.  And he still needs to fight the government to remain in the United States. Attorney Andrew Free (who represents me in FOIA litigation) is now representing Frank before the Board of Immigration Appeals and is looking to help Frank close this chapter of his life sooner rather than later.

And Benton?  I saw him in his old grim, windowless court at the Houston CCA in July.  He was there to barter with the ICE attorney for his client's bond, along with the dozen other private attorneys.  I heard it was his first time back in his old court since he left.  The incongruity of the situation was palpable but it was business as usual, though Benton seemed to get a better deal from the ICE attorney for his client than the other attorneys did, $4,500 compared to the median $7,500.

Benton's Recollection of the Frank Serna Case and Others
We spoke today by phone. I asked him about the Frank Serna case and others in which the word was that Benton refused to allow hearings unless respondents first filed N600 applications.  He defended this practice, "I tell them, that way they have two bites at the apple," a phrase that I indeed heard verbatim from respondents and attorneys who had appeared before him.  "That way if they are unable to convince the government, they have an opportunity to try to convince me."  Again, pretty much what he told Serna during that hearing.

But all the cases I'd heard about, including Serna's, showed ICE attorneys in ex parte communication with the CIS and Benton rubber-stamping the denials.  I asked Benton if he ever terminated proceedings on the basis of US citizenship after an N600 application had been denied.  He couldn't recall any.

Benton said that the paperwork for the N600 applications helped prepare for the hearings, but the rationale only worked for the government attorney and himself.  He could not produce any reasons for why it would be beneficial for a US citizen to have to wait in detention for an N600 decision instead of having the hearing before Benton.  This isn't to say it's not a fair strategy for IJs who have confidence in their own abilities to independently evaluate an administrative record, just that Benton lacked the training and qualifications to do this, and admitted as much.  (Greenstein, on the other hand, is a former attorney in the Office of Immigration Litigation.)

And indeed when Serna's denial came back (via the government attorney, who gave a copy of it to Serna the day of the hearing), Benton just read it verbatim as part of the record for preparing the deportation order, and failed to countenance Serna's arguments about the evidence his mother shared with the immigration court in 2004.

Benton told me that if someone objected and wanted to have the hearing they could, though that does not seem plausible, at least for Serna.  In fact, even attorneys told me that Benton refused to have hearings unless they filed N-600 applications.

Benton also told me that he interviewed Serna's mother and made his determination only after he had reached her, or someone whose phone number Serna said was hers, and found the information she gave him not sufficient.  I was pretty sure that in that time frame, Frank's mother was deceased and asked if perhaps he was confusing that event with the hearing he'd listened to from 2004.  Benton then and in a subsequent email was adamant about having spoken with Serna's mother and that this was during a hearing.

After we hung up I listened to all the hearings.   At the September 12, 2012 hearing, Benton asks Serna about whether he reach his mother for documents or other assistance and Serna says, "Both my parents are deceased."  I'd be happy to give Benton the benefit of the doubt on this.  After all the guy's heard thousands of cases.  I don't think he lied per se about what he did, but he did misrepresent his temperment.  

After the N600 denial, which appears to have been accomplished in coordination with the ICE attorney, when Benton is ordering Serna's removal, Serna is agitated.  Making the same exact points that Greenstein makes a few weeks later, Serna points out that on the basis of his mother's testimony in 2004, the Dallas IJ terminated proceedings because he believed Serna was a US citizen.  Benton says, "We've got somethhing here that's more significant than the recollection of your mother. we've got documents."  Not only do the recordings show that Benton knew he could never call Serna's mother, or someone claiming to be her, they also show that he repeatedly dismissed the possibility that Serna might gather additional evidence to show that his father had filled out an INS form without quite understanding the question and thus misstated the first time he was in the United States, indicating it was 1954.  

During the hearing Serna says, "He was working in the Galveston docks in 1944" and asks to be released so he can obtain evidence of that.  Benton asks him how and Serna says he'll just go down there.  Benton laughs and says, "That's not going to happen" and orders Serna deported

Here's the verbatim text from the email I received today from Jimmie Benton following our conversation, when I sent him a link to the hearing where he tells Serna to file an N-600 application, quoted in full with his permission:
Sorry. I can not listen to the recording at my office because there are
no speakers attached to my computer. will listen to it this evening.

Regardless, I will swear to you that I called the person he identified as his mother to receive from her the information she provided to IJ Copeland. There was no written decision in the ROP explaining how he arrived at his decision.

Yes, my general policy was to require N600 to be filed before I would consider hearing evidence of US citizenship. By my way of thinking that gave respondents two opportunities to establish their claim, organize their evidence and at the same time provide me the DHS position on the citizenship claim.. In a number of cases DHS found they were citizens, issued certificates of citizenship and motioned to terminate proceedings.

I do recall instances were DHS refused to adjudicate the N600 because the fee was not paid and they would not issue a fee waiver. Those cases I decided without DHS' adjudication.

Based upon the two cases you brought to my attention I was obviously flawed in my analysis of the citizenship claim. It would also be fair to say that I was weak in the area of citizenship. This was definitely something that EOIR should have addressed in the form of training. The substantive IJ training involving active give and take, questions and learned input from colleagues has been sorely missing for several years now.

I retired on May 31, 2013. None of my decisions have ever been the subject of discipline, admonishment or attention by the Chief Judge. The one complaint against me in my nearly 18 years on the bench involved an off the record statement I made to Respondent's attorney wherein I told her that if the case was remanded I would understand if she ask that I recused myself (this was an LPR cancellation matter).

My decision to retire was manifold: retirement eligible since 2011, lack of professional respect for OCIJ management because my immediate supervisors could not find there way around an immigration court, lack of meaningful training, crushing case load, the current flux in the immigration laws (not comfortable with issuing removal orders for people who may in the near future be eligible for releif) and my desire to enter private practice where there is no pressure to be financially successful.

Wednesday, September 25, 2013

"They told me I almost died. 20 minutes longer and I wouldn't have made it."

Last week Esteban was collapsed in the shade of a mesquite bush along the highway 21 miles north of one of the more corrupt, fraudulent borders in a U.S. history not lacking for these  (In 1853, Mexican President Antonio de Santa Anna had the Spanish language newspapers from New York that reported the deal swiped off the streets so that Mexicans wouldn't learn of the negotiations, or the kickbacks he'd receive.)

The first Border Patrol truck whizzed by. Esteban had been vomiting food, then water, then blood. He wanted to be caught. The next car was civilian.  Esteban, 5'3", struggled to wave them down but they drove by. Shortly after that the border patrol returned and he flagged them down. When they saw him retching blood after drinking from the water bottle they gave him, they called for assistance and soon he had an IV in his arm.

Border patrol drove him to Tucson.  A few days later he was back in [town omitted to protect Esteban], talking to me on a cell phone, the first time I'd heard his voice since he was deported in July, I think. I lose track. Esteban's been deported so many times even he loses track.

Here's a slightly edited transcript of our conversation. (Esteban's so close to the border that Verizon thinks he is in the U.S. and his Tucson phone card works.) We spoke Monday, September 23, the same day I read the AP story on all the deaths in the desert from people crossing in Texas instead of Arizona.  But of course it's still very easy to die in the deserts of Arizona as well.
JS: Where are you? 
ET: [], Sonora on top of this mountain so I can get this line. Otherwise I can't hear. 
JS: How long does it take for you to go up the mountain? 
ET: Just four minutes. It's a small mountain. 
JS: What do you see? 
ET: The border. I'm right here on a little mountain and I can see the border on the other side. Just the border, just a little border on []. The line is right there, some bushes and a metal fence. It's big, about 30 feet tall. 
JS: Where are you staying? 
ET: I'm staying w. these people right now. Not the people I was staying with before. There are no jobs right here. This is a little town. They don't have no business. Just five little stores. No business, no nothing. 
JS: How did you end up with that family?
ET: Because I don't have nowhere to go. I don't have money to go somewhere else. They know me. They know my family. My brother's helping them. My brother he works roofing and sometimes he don't work. Roofing they just work two times a week. 
JS: Why did you cross last week? 
ET: I was always looking,looking for somebody else, to see who wants to cross with me. Someone told me there's another guy who wants to leave. He told me, "I want to leave but I don't have money to buy food. We need to buy food for three days." I told him, "I'll buy the food and you just go with me." 
JS: Why this guy?
ET: First, I saw these other guys. They said, "If you want to go to other side, put a bundle [of marijuana] on you back and we will take you back." I don't want to get in trouble. I don't want none of that. Then I would be in jail. See what happened last time? [Esteban was charged with drug smuggling and found not guilty.] I don't want to be passing through the same thing. I don't want to risk my life again. 
JS: Who was the guy you crossed with? 
ET: I don't know, an old man, 55 years old. He was in United States and was deported and was living in MX. He was in the US for 15 years. [He was deported] for drinking. He was living in Eloy. He was driving and got a DUI. 
JS: Could you cross and just follow the smugglers without carrying anything? ET: They used to let you, but not no more. They don't let people cross no more. They don't want illegal people crossing right here. The only people they let cross right here is if you're born here. [Esteban was born in []; his father, Jesus, was born in Arizona and had an Arizona birth certificate, and was married to Esteban's mother, which is why the jury in 2008 found him Not Guilty of Illegal Reentry.] They [the smugglers] are working all the time. I ask them, "When can I cross, I'm from []? They give you a day, "We're not going to work that day." They used to charge $300 but right now I didn't pay nothing. 
JS: What do they use when they cross? Trucks? Cars? 
ET: When they're going to cross bundles it's just people. And then people with binoculars to see the other side. Radios walkie talkies and everything. 
JS: What food did you buy? 
ET: Little cans of sausage, tuna, some tortillas, a lot of chips, little things, juices. 
JS: What did you use to carry things? 
ET: A backpack like the kind you use from school. 
JS: What time did you leave? 
ET: We jumped the border at 8 a.m. 
JS: How did you know where to go? How did you go over the fence? 
ET: Some people told us that you can cross by yourself. If you walk all the way to mountain, there's no fence no more, just a mountain. I want to go back with my family and I don't have money for coyote and I don't want to carry bundles. People said, go this mountain and go straight toward another mountain and stay between the roads and that will take you to Tucson. 
JS: Did you sleep at night? 
ET: We just walk in the day and sleep in the night. And when we start walking on mile 18 the border patrol starts following but they didn't catch up. We lost them. From there they saw us again and they was waiting for us on the road. We went to sleep right there, so they got tired waiting for us. Then in the morning at 6 a.m. we start walking. And that night I start feeling sick, start throwing up a lot. I drink the water and I'm throwing that up, and then in the desert you can die 
JS: Why do you think you had this problem and not the guy you were with? 
ET: I think I was locked up for 15 months with no sun [fighting his deportation] and so when the sun hits me, it hits me bad. That's what I think. JS: What was it like with the other guy when he decided to leave you? 
ET: He told me, "Now I'm going to leave you in the desert, good luck. I need to keep walking because if I stay here border patrol is going to get me for reentry and I don't want to do time for reentry. So i'm going to leave you." 
JS: What did you say? 
ET: I told him, "I'm going to give you a couple cans, but leave me a little water so I can get to the road." He said alright. In the morning we came out to cross the JS: How long were you waiting before you saw the Border Patrol? 
ET: About a half hour. I was on the side of the road, sitting under under the mesquite right there and then Border Patrol passes and didn't see me and another car passed and I ask them for a ride and they just keep going and i think they told [Border Patrol]. And they pass again. I was sitting right under the mesquite. They asked me, "You haven't drunk water for how long? I told them we finished our water and we drank where the cows drink water. That's where we got water, and I just got that dirty water. [Border Patrol] gives me water and I just start throwing up. "You're sick, I'm calling medical," the guy said. Another Border Patrol got there and gave me the things in Tucson. They were saying "Oh, how did you get out? You was doing 75 years." I never got no sentence for 75 years. "Yeah, you got 75 years. how did you got out?" I told them I walked away from a work furlough,and got 7.5 months. "On the paper the court put 'years.' How did you get out? You had sentence for 75 years." So that scared me, too. And then they said we're going to get you for Reentry. We're going to take you to CCA Florence to see the judge. I said, let me talk to my attorney. they said, we can't let you. I said I wanted to talk to the Mexican consulate. They called Jesse [Smith], Esteban's terrific defense attorney for the 2008 case] and the third day they released me. I think they saw in the computer that i beat that case. 
JS: Did they give you any paperwork when they released you? 
ET: They didn't give me nothing. I just signed one page. They gave me no copy.
Tonight  Esteban sent me a text.  He is going to try again.  As soon as possible.  As soon as he finds someone else to cross with him.

Tuesday, September 24, 2013

New ICE Contracts, and Design Within ICE

From ICE Adelanto Intergovernmental Service Agreement, released to Deportation Research Clinic under the Freedom of Information Act

I took a break from the blog since July, but am resuming with some posts that will try to document in real time some of my research and writing in progress, especially documents sent to me responsive to requests under the Freedom of Information Act.  (I should note that the government is trying to have it both ways: prosecuting people for leaks but then not releasing information according to the statutory requirements of the FOIA law.)

In a cover letter dated September 12, 2013, and postmarked a week later, Immigration and Customs Enforcement released some of the documents associated with its current contract with the City of Adelanto, California for a detention facility dedicated exclusively to people in ICE custody.  The data on the daily bed rates and other costs are unlawfully redacted, and I am appealing these, as well as the missing attachments.  (I am linking to the appeal because the ICE FOIA office is handling a lot of requests for contracts and I'm guessing they will be applying unlawful redactions on those as well; will update on the result.)

 According to an official who spoke to me on condition of confidentiality, the new detention arrangement with GEO is replacing the previous contract ICE had with the facility run by the Los Angeles County sheriff in Mira Loma. Instead of detainees being housed about an hour from downtown L.A. and having live hearings before immigration hearing adjudicators, they are now having televideo hearings from the-middle-of-nowhere in a region chock full of federal, state and local prisons and jails.  Apparently, the LA Sheriff union contract was being renegotiated and ICE found it too expensive. 

GEO Managed Adelanto, CA East and West Detention Facilities

Adelanto 2011 Intergovernmental Service Agreement (IGSA)
I've been reviewing older contracts and this one seems radically different from others, including others signed as late as 2011.  Perhaps the facility is supposed to be one of the new model facilities, except that the language emphasizing the specificity of immigration detainees and their unique needs as administrative detainees and not criminals, is couched in broader, systemwide terms and not specific to this facility.   (The contract also has some language that resembles terms in the Request for Procurement for a new facility in San Antonio, Texas, also issued in 2011.)  

Anyway,  take a look.    The Adelanto subcontractor is the GEO Group.   Curious if anyone has thoughts on why ICE would use an Intergovernmental Service Agreement to have the city supervise a site that ICE is requiring to house exclusively federal immigration detainees, in an area where the federal government already makes quite an impressive footprint.  And, why is ICE doing this in Adelanto and issuing a call for its own contractor to design and run a facility in San Antonio?  Also, curious to hear from anyone who has been to this facility: are there really contact visits? (You can post here or email me at jacqueline-stevensAT  Also, the city sold the land for this facility to GEO a few years back, though that itself doesn't explain the IGSA since ICE has other direct contracts with firms that also own the land and facility.

DIY Detention Facility Instructions
And speaking of the San Antonio RFP, here's something I never ran across before: a lengthy design guide, with dimensions and pictures, for how to build your own ICE detention facility

It's the real life dollhouse version of the immigration detention facility, for children who like to play prison, and with a weird fixation on ... the toilet, the single image that appears more than any other in this document.  I lost track but well over a dozen pictures of toilets appear.  Here are a few:

The one above appears in the document the most frequently--it's the unisex, male, female, officer, public, etc. toilet.  It looks exactly like the Eloy CCA toilet when I visited, the one that had been overflowing into the waiting room for a few days.

This is the "Special Case" Room, which the Manual notes is also referred to as the "padded room."
If you want to know what an inside of a detention facility is supposed to look like, this is your book


Thursday, July 4, 2013

Deported U.S. Citizen Andres Robles Files $1.5 million Claim Against ICE

From sworn statement of Andres Robles, October 9, 2008
 taken by ICE agents interviewing Robles in a Thibodeaux, Louisiana jail; 
released June, 2013 
Documents recently released to me under the Freedom of Information Act confirm what Andres told me over the summer of 2011 while he was hiding from gang violence at his grandmother's home in Mexico.  He explained then that he told the ICE agents and the immigration judge, John Duck in Oakdale, Louisiana, that he was United States citizen, but they failed to check and deported him anyway. 

Ozment Law Files Complaint for $1.5 million
Andrew Free, an attorney with Ozment Law in Nashville, Tennessee, read about Andres's plight on this blog a few months ago.  Ozment Law then went down to Louisiana to meet Andres. (Ozment Law also has been representing me in FOIA litigation.)
On the occasion of filing on June 28, 2013 a claim demanding the government pay Andres for his illegal arrest and detention, false imprisonment,malicious prosecution, intentional infliction of emotional duress, and wrongful deportation under the Federal Tort Claim Act, Elliot Ozment stated,
Now is the time for the United States to make amends for its mistreatment of Andres and his family, and take immediate measures to prevent it from ever happening again. Just as important, our nation's insatiable deportation machine must immediately conduct a top-to-bottom review to explain why it keeps detaining, kidnapping, and banishing its own citizens -- who are predominantly men, women, and children of color. This troubling practice must stop. And until it does Andres, his family and thousands who are similarly situated will work to hold government officials accountable.
Andres's older sister Maria has been the force behind making sure the government's cruel treatment of her brother and others is not forgotten. Shortly after she heard about the claim being filed I asked her what she hoped to obtain from this. "Mainly to get him justice. The attorneys will get the attention of the people who are doing all this. They need to do more research instead of taking the easy way out." Forensics of a Wrongful Deportation In 2008, Andres Robles, then 19, was falsely imprisoned and then banished from the United States after the government ignored his sworn statement that he was a U.S. citizen. The document has several anomalies, contradictions, and inaccuracies. PARENTS ARE AND ARE NOT UNITED STATES CITIZENS In one place it shows his parents are both U.S. citizens
while another section in the same document states they both were legal residents:

 ICE also ignored the information in its own TECS database indicating that Andres was born in Mexico and that he was a United States citizen.

When we spoke around noon today he was looking forward to Maria joining him at his parents where the family was planning a July Fourth celebration on Andres's day off from working on an oyster boat. He pointed out that for him the trauma of the deportation is still ongoing. Speaking somewhat haltingly, at pains to describe a situation that defies explanation, he told me, "I can't get my driver's license because they ask for the social security card. But I can't get the social security card. I've been down there five times and it still doesn't come. They ask me who filled out the form and then they send it again. The last time they asked me who did it and it was the person who asked me."

The folks at the social security office can't tell him why the social security card isn't there, but I bet the folks at ICE could.  The same TECS database that correctly indicated in 2008 Robles's US citizenship now lists him as a citizen of Mexico, a date that would have been seen by whoever consulted it in 2012, presumably proximate to one of the time frames when Andres was trying to obtain his social security card.  
Robles is shocked and deeply grateful to attorney Free and his colleagues at Ozment Law for taking this on, "I didn't expect this.  It's pretty exciting."

Thursday, June 13, 2013

ICE Still Detaining and Deporting US Citizens, And Still Lying About It

On June 7, 2013 an immigration judge terminated deportation proceedings for a 54 year old United States citizen who had been locked up without a lawyer for 14 months, one of three individuals to contact me in the last two weeks from Houston, SPC.  

ICE and the Corrections Corporation of America that held Mark Lyttle in 2008 are still holding US citizens.

The full letter from FS I received yesterday is here, redacted because he has not given me permission to publish his name.  It is just a page.  Anyone who thinks Mark Lyttle's case is a one-off should read this letter and then read why this is still happening.  As long as poor U.S. citizens of Mexican descent, or the perception they are of Mexican descent, are locked up, ICE is going to be falsely imprisoning and banishing U.S. citizens.

 On April 29, 2013 The New Yorker published an article by William Finnegan "The Deportation Machine" about Mark Lyttle's deportation to Mexico.  (More later on Finnegan's plagiarism of my work, and the New Yorker's bizarre apology and inadequate efforts at redress.)  John Morton, Director of Immigration and Customs Enforcement, replied indignantly to the article, claiming new "stringent safeguards to protect against the possibility of a citizen’s detainment or removal..."

As soon as I read Morton's inventions, I knew that I would again need to start documenting U.S. citizens being detained and deported.  ICE is lying today just as they did when I first started doing this research in 2008.  ICE propagandists have gone from denying that it ever happened -- that was the company line in 2008 and 2009 -- to now saying that they stopped doing this.

Alas, it was as easy to do this last month as it was in 2008 to 2011.

Daniel (not his real name)
 A few weeks ago I came across an April,  2012 Board of Immigration Appeals (BIA) decision affirming the appeal of a respondent who was indignant that EOIR adjudicator Jimmie Benton refused to recognize his claim for U.S. citizenship because he did not know the law on this. 

I called the locator system, learned Daniel was still detained and wrote him a letter.  The letter was properly addressed but not accepted by the CCA mail room because my research assistant had not used an "alien number" on the envelope -- on what legal grounds can CCA refuse a properly addressed piece of mail just because it lacks some weird code they use and that most people cannot obtain unless they are able to contact the person they are writing?

In the event, Daniel had just had the remanded hearing, again before Benton, who didn't understand the law in 2012 and still didn't understand it in 2013.  Daniel told me over the phone just before he was deported that Benton said that he would only terminate proceedings if Daniel could produce a Certificate of Citizenship, something that costs $600.  Daniel is indigent.  He told me that it took several months for his request for a fee waiver to be approved and he was still waiting on the final Certificate.  He had all the necessary underlying documents but Benton refused to consider them.   (FS also did not have a Certificate of Citizenship but in his case the IJ relied on the underlying documents and on that basis terminated the proceedings.)

(To be clear, a Certificate of Citizenship is NOT a requirement for U.S. citizenship.  Anyone who is a U.S. citizen by birth has that status because of meeting the underlying criteria, e.g., birth in the United States or birth outside the U.S. to a parent or parents who are U.S. citizens.)

A few days after public affairs in Houston was alerted to my request to speak with Daniel, he was shipped out to Juarez, Mexico.  There he will be facing the same problem that Andres Robles encountered after ICE deported him to Mexico in 2008.  Three years later he was sent a letter, care of his lawyer, saying that his application for the Certificate of Citizenship had been approved but that it would be impossible for Andres to pick it up because, the USCIS Field Office Director acknowledged, the government had deported him.    (In the last few weeks, thanks to the persistence of his sister, Maria, Andres obtained the representation of Andrew Free of the Ozment Law Firm and will be filing a civil rights lawsuit against the thugs who falsely imprisoned and then banished Andres.)

Robert (not his real name)
Robert's situation is somewhat more complicated, not because of anything he did but because he lives in a primitive era of ethnic cleansing, such that his mother and grandfather were treated by their government as foreigners and not the U.S. citizens they really were.

Robert's great grandmother was born in Texas in 1902, and her father and mother also were born in Texas.  She lived in Mercedes, Texas but gave birth to her son, Robert's grandfather, Gino, in Mexico.  Gino was by law a U.S. citizen at birth but instead of being recognized as such, when he entered the United States he was given a green card and then later, long after his daughter,  Robert's mother Rachel was born, became a naturalized U.S. citizen.

Rachel then also grew up with a green card.  I've spoken several times with her and Robert. They had hired an attorney but he didn't understand the possibility of the acquired citizenship.  Robert has a forthcoming hearing.  Meanwhile we are trying to assemble the documents underlying these claims so his attorney can present the probative evidence that should trigger his release.  This is actually the responsibility of the U.S. government--Morton's 2009 memorandum requires ICE to conduct investigations into claims of U.S. citizenship.  His family's green cards and naturalization means all the underlying birth certificates and marriage certificates are already in the Citizenship and Immigration Service database, but Robert's been locked up for over a year.  He said his deportation officer did nothing to help him.

Robert and Daniel have signed privacy waivers and we will be obtaining their files shortly. I also will be writing to FS and will be asking him to sign a waiver as well.  Hopefully we can find an attorney who will help him hold the government accountable for his false imprisonment as well.  (FS had already been through this once in 2004 when an IJ then as well terminated the deportation order.)

As I've been writing, the only way to follow the U.S. Constitution and prevent U.S. citizens from being in the unlawful custody of ICE is to provide all detained respondents assigned attorneys.  As these cases show, generations of racial profiling have deprived people the status and thus knowledge of their U.S. citizenship. The U.S. government has been stripping people of their U.S. citizenship and has an obligation to stop doing this; that's only possible if everyone in these ICE jails has an assigned attorney.

Finally, it is urgent that we not lose sight of the big picture: the borders of the nation-state are arbitrary and it is as ridiculous to restrict our movement on their basis today as it was to confine people to parishes in England and transport them to America when they were caught in London without a pass.

The reason I focus on the detention and deportation of U.S. citizens is the same reason that slavery abolitionists supported criminal prosecutions for the especially brutal treatment of slaves.   The prosecutions forced the public to think about what slavery looked like in practice.  The unprovoked shootings of slaves and detentions and deportations of U.S. citizens are expressions of these respective institutions when they are doing what they are supposed to do, and not rare aberrations.   Slavery and deportations are barbaric; it is as impossible to deport people without unlawfully harming respondents, including U.S. citizens, as it was to have slavery without unjust, horrifying violence.
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