Wednesday, December 12, 2018

ICE Tricks Sheriffs into Kidnapping U.S. Citizens, Bogus Immunity Claims

Source of image 

Last week a U.S. citizen born in Philadelphia filed a lawsuit after a Florida sheriff took him into custody under immigration laws.  (No law enforcement entity in the country has jurisdication over U.S. citizens under immigration laws, a point that ICE itself has repeatedly avowed.)
The sheriff is claiming that the agreement he has with Immigration and Customs Enforcement -- to earn a $50 bounty for each person turned over to ICE -- immunizes him from any litigation.  Instead, though, the payments might be grounds for charging the sheriff with criminal kidnapping.

The ICE announcement of the new partnerships acknowledges past litigation had made counties reluctant to hold people on immigration detainers, insofar as courts have found that these do not alone provide "probable cause" for an arrest.

ICE explains that the new agreement should assuage county concerns on this score:
Recognizing these challenges, the National Sheriffs’ Association (NSA) and the Major County Sheriffs of America (MCSA) worked with ICE to develop a new process to clarify that aliens held by these jurisdictions are held under the color of federal authority, thereby affording local law enforcement liability protection from potential litigation as a result of faithfully executing their public safety duties.
 The ACLU and other civil rights organizations vigorously dispute this. 

Journalists covering this are understandably confused.  

Here's the quick version of the big picture:

1)  Congress in 1996 voted to amend the law controlling immigration detainers.  The amendment was Sec. 133 in the 1996 bill, and it was to section 237 in the previous bill, and so called 237 (g).
The text of the 1996 bill is now in the U.S. Code as 8 U.S.C. 1357.    

2)   The dispute is about this language (from the 1996 bill) and promises based on it:  
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.
3)  The problem for Monroe County and others operating under these agreements are two-fold:
    a)  Nothing in this language exempts anyone in law enforcement from the "probable cause" threshold for taking someone into physical custody.  If the government lacks probable cause, especially if the person is a U.S. citizen, then holding the person in custody is false imprisonment or even kidnapping.  There is no Federal authority for doing this, and thus there is no basis on which a local sheriff would be able to prevail in asserting they were acting on behalf of ICE.  

For the most part, litigation has been civil, though under Obama, the DOJ did successfully criminally prosecute two East Haven police officers.  At some point a prosecutor who believes in the rule of law will prosecute for this, as did prosecutors in the 1850s when they brought charges against U.S. marshals or slave agents who kidnapped people accused of being escaped slaves.

Under Florida law(1)(a)The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage...

ICE is giving the county sheriffs a reward of $50 for holding Mr. Brown after his April 26, 2018 court hearing against his will and without lawful authority.  Discovery presumably would prove that the cash incentives were implemented because ICE otherwise was having a problem with enlisting the cooperation of the sheriffs.

  b)  The claims of ICE officials asserting the agreements indemnify the sheriffs are not legally enforceable.  Just because someone with a government title, say, "President of the United States," puts something on a web site, or in an agreement with a local county, that does not make that agreement binding on the federal government. No one in the government can supersede the Fourth Amendment, period.    

4)  The National Sheriff Association and the sheriffs in Florida seem to have indulged in some magical thinking to the contrary.

5)  The reason that ICE is doing this is that it continues to have problems with buy-in to the original 287 (g) program.  A 2018 budget request indicated only 31 counties were participating.  The 2019 budget request says the number has gone up to 60 and that ICE anticipates an additional 23 MOAs, but that's still a miniscule fraction of the 3100 counties nation-wide.  The new BOAs are supposed to change this.

At present ICE lists 78 counties as having signed the MOAs, about 2.5% of all eligible counties, and in areas that represent an even smaller jurisdiction over the U.S. population, because they are largely in areas sparsely populated.  97.5% of U.S. counties are not participating because of a mix of anti-deportation sentiment and litigation risk aversion.  
The American Civil Liberties Union has a terrific FAQ about the "Basic Ordering Agreements" ICE rolled out earlier this year in Florida.  And here's the complaint against Monroe County filed on behalf of Peter Sean Brown, and the story behind it.

The National Immigrant Justice Center, Southern Poverty Law Center, American Immigration Council, the American Immigration Lawyer Association, and the National Immigration Law Center also partnered on a March, 2018 report detailing the case law at odds with ICE's claims that its local partnerships indemnify the counties. 

ICE acknowledges rogue operations in which agents go undercover to trick immigrants into providing location information to assist with the arrests of family members or co-workers.  Here it seems the rogue operation is to trick sheriffs into believing false imprisonment possible without consequences.  

Friday, November 16, 2018

"Coercivic," aka CCA, Sued for Exploiting People Held during Immigration Proceedings in New Mexico

"CoreCivic profits from its operation of Cibola by relying heavily on a captive workforce of civilly detained immigrants, including Plaintiffs, to perform labor necessary to keep Cibola operational and provide the services it is obligated to provide under the terms of its contract with Cibola County, New Mexico." 

This is the first lawsuit against a private facility on behalf of people held under immigration laws using the Fair Labor Standards Act.  It also alleges violations of New Mexico's minimum wage law and its common law prohibiting unjust enrichment.

Please go here for more information, including on how to join the class.

And here for recent Ninth Circuit petition and replies, including 92-page declaration of Plaintiff attorney. (Ninth Circuit recently denied GEO's petition to review federal district court green-lighting of cases against the Tacoma facility.)

The United States of Prisons?

Btw, is the graphic design shop "Coercivic" hired chuckling over how they branded the United States (flag) as a prison?  Or is this seemingly astute parody only accidentally illuminating the control this heinous industry has over the U.S. Congress and local politicians?

Friday, November 9, 2018

GEO Loses Another Round in Effort to Defend Slaving Wages, Ninth Circuit Motions Here

Workers Paid $1/Day at Tacoma Facility, from article pointing out Gates Foundation GEO investments
The Ninth Circuit Appellate Court yesterday denied GEO's petition to appeal Judge Bryan's class certification of the lawsuit charging GEO with violating Washington's minimum wage laws as well as laws against forced labor and unjust enrichment.  Here are some of the key appellate pleadings in the case going forward with discovery against the GEO facility in Tacoma, Washington:

2)  Plaintiff's Answer (September 2018)
3)  Plaintiff Attorney Declaration (September 2018)
4)) Defense Reply (September 2018)

The attorneys for the Plaintiffs are brilliant and are slaying Goliath.   

Here's a short April 2018 op-ed in the New York Times with a quick overview.

For more information on the cases, media coverage, and the law review article explaining the basis for these lawsuits, please go to the Deportation Research Clinic sources page and also the Deportation Research Clinic home page.  

Thursday, November 1, 2018

Can the Commander in Chief Use Military Funds to (Falsely?) Imprison Alleged Noncitizens and Asylum-Seekers?

A tent city set up to hold immigrant children separated from their parents or who crossed the U.S. border on their own is seen in Tornillo, Texas, U.S., in this U.S. Department of Health and Human Services (HHS) image released on Oct. 12, 2018. Photo courtesy HHS/Handout via Reuters

Source: PBS, October 30, 2018

I just listened to Trump's plan for holding noncitizens in what sound like military bases while they wait for their immigration court dates.  He claimed that lack of space is the only reason people now are being released prior to their scheduled court dates and seemed to relish the likelihood that the harsh conditions of confinement will discourage people from exercising their rights to claim asylum (or prove lawful residence or U.S. citizenship).

The idea seems to be that the government can avoid  the expenses of prolonged detention by throwing people into military camps. 

(President Obama, remember when your party controlled both houses of Congress and your DHS turned down the petition to enact regulations for people in custody under immigration laws, claiming the process would be time-consuming and expensive?  Okay for prisons to have to follow regulations but not facilities holding U.S. citizens in ICE custody? And now martial law is okay?)

Here is an article from June discussing the options considered.

The legal authority to do this seems unclear. The photo of one facility was released on October 30. 2018 by the Department of Heath  and Human Services, but the facility was actually being paid for by the Army.

It appears that Air Force and Army also may be queuing up some bids and proposals.  If you're a journalist interested in poking around, go to and look for contracts with the NAICS Code 236220 -- Commercial and Institutional Building Construction.

There are a few that seem plausible.  One that especially caught my attention is one that was posted on October 10 with an October 30 deadline for firms expressing an interest.

This office intends to solicit offers for SABER (Simplified Acquisition of Base Engineer Requirements) execution of multi trade real property maintenance and repair of military facilities at Joint Base San Antonio, Texas.  Delivery Orders will be issued under the general contract to include a broad range of work in a variety of trades, including but not limited to site work, roadway construction and repair, drainage, utilities, electrical (interior and exterior distribution), construction of building facilities, renovation of existing building facilities, structural repairs, roofing, plumbing, HVAC, controls painting, asbestos and lead based paint abatement, demolition, and installation or removal of large equipment such as boilers, chillers, etc.  Estimated contract ceiling amount is $50M.  Up to 8 contracts will be awarded.  Duration of each contract will be 5 years.

 Here's another one, at Lackland AFB.   Not only is this an unusual turnaround time for bids but the archiving time frame also is quite short and the project public description seem inconsistent with the budget and other details.

Does the Air Force or Army have authority to use its appropriations to build structures for locking up noncitizens seeking a review of their asylum or other applications for admission?  What about people who are U.S. citizens or have other legal status and are put into custody under immigration laws nonetheless?  Are the authorizations for these speedy bids proper and in the Appropriations Act?  Is Trump calling the folks in the caravan an "invasion" part of his effort to invoke his authority as Commander of Chief to avoid legal challenges to unauthorized expenditures?

Monday, October 22, 2018

Open Door Policy at Retail Stores Means Mobs, not Jobs, Time to Close the Free Movement Loophole in U.S. Commerce

"Black Friday" Shopping Mob

For years I've been biting my tongue, aware that my views on this subject would be unpopular among my friends in the 21st century, especially anyone in the land of the fee and the home of the sale, a country whose iconic Apple is a beacon calling forth the wired, the bored, the befuddled bad-asses yearning to be Jay-Z.  But commentary over the last few days on the folks in the caravan has finally liberated me to speak my truth and support Laura Ingraham in her campaign to end the ridiculous open door policies of our country's retail outlets.

Today anyone can enter a shopping store.  ANY ONE!  I don't think people understand just how easy it is, and how many people are entering these stores.  The media elite don't want you to know the exact numbers but it's in the billions.  In fact, each year hundreds of millions, okay, gazillions, go in and out of stores.  They buy things, they sell things, often if they do not really need them.  (Sometimes they lie and will say that they need something but they don't; they call it "retail therapy," but obviously they're coached to say this.  The truth is they really just want to earn money and then spend it.)

Look at how unattractive they are.  And how unruly.  All that pushing, overpowering even security guards.  And there, a child!  What kind of parents would bring their children on such an excursion?  (Also, we've heard rumors that the goblins are among them.  Just bring your cameras to the center and look around.)

Clearly we need to do something about this and stop people from entering stores without inspection.  That doesn't mean everyone entering a store is a criminal, but come on! 

Radio talk show host Laura Ingraham totally gets it.  "Not everybody is going to come into the United States and commit a crime.  I'm well aware of that, as are most Americans."  Right, we are well aware that most people who enter a store aren't going to shoplift.  But if we don't regulate their entrance then we're doomed.   Like Ingraham says, "if you lose control of who comes into your country, for whatever reason, then we [sic] lose it all.   Why is that the case?  Because without order, there is no security.  Without security, our freedoms begin to erode."

You listening Trader Joe's?  You better, because if you don't start checking people's identity cards at the entrance, you're going to need guard towers and machine guns once they're in.

"How many of these Hollywood do-gooders or high-tech billionaires or liberal politicians....would respond to, let's say it's a hundred people surrounding your gates, climbing onto your gates, dropping onto your property, how many of them would open their doors and say, wanna use the bathroom?"
"Jobs or mobs?"

Doh, jobs! And Ingraham's right, come to think of it.  That do-gooder liberal Howard Schulz has never once let me use his bathroom, and I'm a U.S. citizen.  (Though to be fair, the Starbucks outlets he owns let me use them all the time without being invited, or even buying coffee.)   

I'm still silently cheering Ingraham on as I listen to the podcast while waiting in line to pay for my Campari from Milan, Spanish olive oil, and San Francisco sourdough, grateful to her for raising my awareness of the danger of my present situation.  I am in an unpoliced open space.  There are dozens of other shoppers with their carts.   At any second they could cut in front of me.  In fact, they could all crowd together and block my access to the clerk. 

I've shopped there countless times and this revelation of human darkness has never come to pass.  But Ingraham's a smart lady and now that I've encountered her analysis, I think she makes a point. I look around, aware for the first time of the precarity of my situation, and the ignorant complacency of the other shoppers.  Does the woman in the blue parka live nearby?  Or is she day labor at Crate and Barrel, picking up some food to prepare for her family in the suburbs?

Also, what the hell are all these people doing, taking advantage of the open shopping policy?  Don't they know that they should be at their jobs?   (I know, some pointy-head academician will whine about how open labor markets are good for the economy and mobs of shoppers or potential employees are good for jobs, that the clerks at Trader Joe's need customers so they can go form a mob during the holiday sales, say at Crate and Barrel.  "There shall be open borders."  That's what the Wall Street Journal editorial board proposed in 1984 as the next amendment to the U.S. Constitution.  The folks who came up with that probably also thought industry contributed to global warming and preferred peace to war.)

"They broke into Mexico.  That's breaking and entering!" Ingraham shouts, self-energized by her own legal acumen. Anyone listening to her genius analysis knows she could go so much further.

Someone needs to flag the folks who run Trader Joe's and break it down.  Sure, the United States citizens made gobs of money by encouraging guest workers and allowing people to come in and use the bathroom, but there's more to economic viability than private property laws conducive to a functioning labor market and a secure business environment making possible surplus to reinvest.  Don't the owners of Trader Joe's realize that all their customers (except for me) have been breaking and entering?  Are they too busy making money to get this?

No, capitalism is not a panacea, but it does provide obvious examples for pragmatic responses to the horrifying nonsense mobilizing our country's worst nativist reflexes.  

Monday, October 1, 2018

Supreme Court Conference Announcement: Cert Denied for Menocal et al. v. GEO Group, Inc.

From October 1, 2018 Supreme Court Docket for The GEO Group, Inc., Petitioner
Alejandro Menocal, et al.
In its petition last June, GEO reiterated arguments that lost in the Colorado federal district court, and lost in the Tenth Circuit appellate court.  In urging the Supreme Court to review GEO's defense of legalizing slavery before the case has gone to trial, GEO wrote:
[T]he court held that a longstanding government program aimed at reducing detainees’ idle time may now be categorically unjust under some standard that no one has quite pinned down....GEO is being sued for carrying out lawful and longstanding federal policies under an existing federal contract....If interlocutory appeals are still denied, contractors will face a tidal wave of class actions by hundreds of thousands of detainees before a single federal appellate court has reviewed de novo the merits of these TVPA and unjust enrichment claims... 
GEO seems to be under the impression that if it calls "forced labor" "reducing ... idle time" and breaks the law for a long time, its wrongdoing is grandfathered in just because it has a federal contract.   ("I've been driving 90 miles per hour on this freeway for decades. Here's my contract with the U.S. Postal Service. How else am I going to be able to deliver the mail?!") GEO's rationale is evidence that power and money, and the obscurity and secrecy of detention conditions, have been cushioning them for years from the firm's obligations to the rule of law.  (For the origins of this litigation, please see this Washington Post article and details on this and related cases here.)

GEO also argues that their important mission of locking people up urges the Supreme Court to review their case right now:
The combined force of these suits—and more that are sure to follow on the tailwinds of the panel’s decision—are burdensome to GEO and threaten to pass on greater costs to American taxpayers, as the costs of private detention services must rise in response to the litigation. Indeed, that is plainly the goal: to reduce the availability of one of the federal government’s chosen means of carrying out its Constitutional mandate to control the nation’s borders. That alone warrants this Court’s intervention.  
The Supreme Court one day may review this case and others.  In the meantime, we'll have to see how GEO's warnings play out.   The options are: settle and negotiate back pay to the classes certified in Colorado and other states or continue to litigate, lose in a jury trial in Colorado -- that GEO forces crews of six people daily to perform janitorial work is not in dispute -- and then renew their appeals.  Meanwhile, the parties should be on track to resume discovery.   (Oh, and this reminds me: what about their reassurances to their shareholders, that this litigation was baseless and no big deal?) 

Motions and orders on this and six other cases are here, though need some updating.  For an overview of the impact of this litigation, including successful claims that GEO has violated minimum wage laws in the states of Washington and California, see "When Migrants are Treated Like Slaves," New York Times, April 4, 2018. 

Thursday, September 27, 2018

Department of Justice to Immigration Court Administrators: Ignore Pereira

In June, 2018 the Supreme Court made it clear that the immigration courts were accepting putative and not bona fide NTAs.  Shortly thereafter, the Executive Office of Immigration Review (EOIR) says, okay, we'll stop doing this.  And then, in July, EOIR reverses course and tells the courts to accept charging documents that are legally deficient.

On June 21, 2018, the Supreme Court held: "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a 'notice to appear under section 1229(a),' and so does not trigger the stop-time rule" (p. 9).

Less than a week later, on June 27, the EOIR sent an email to court administrators stating: "Effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected."

Then, on July 11, 2018, EOIR's Deputy Chief Immigration Judge Christoper Santoro, apparently at the behest of the Department of Justice, reversed this instruction, as well as the Supreme Court:

The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs. 
The message above supersedes the guidance below. [The email then quotes the email linked above.]
An attorney told me recently that he was no longer going to appear in any immigration courts: "They're not real courts."  Monopoly money works just fine in the game of Monopoly and bogus NTAs are par for the course in fake courts.

Friday, September 21, 2018

Texas Updates: New "Montgomery Processing Center" Immigration Court, Farm Said to Exploit Immigrants on Loan from Polk County Jail

The Houston detained deportation court dockets "continue to increase beyond capacity," according to an official who helps run them.  Documents just released reveal that as of May 24, 2018 almost 1,900 people in the Houston area under lock and key on any given day were in queue to have their fates decided by just three Department of Justice attorneys in Houston and three in ... Miami.  Though many of the Houston detained cases are heard by televideo so it probably doesn't matter so much if the hearing official is 20 or 1,200 miles away.

The government official, Elisa Sukkar, sounded the alarm:
I would like to point out that the Polk numbers are out of control as the docket was very high once, then dropped to 40 or 50 cases, and now is up to 600 cases. 
Today we received 75 Credible Fear Cases out of Polk so we are scrambling in terms of IJ time. 
I have asked CA [Court Administrator] Russelburg to reassign some of hte Polk cases to the Miami HOD judges to stabilize the situation. 
Starting Next week, each Miami HOD judge will dedicate one day a week to the Polk cases as ICE only has 2 VTC [televideo] units at Polk.  (IJ Walton will continue to use one and one Miami HOD judge will use the other VTC.)
Each and every single one of these cases is because of a status crime whose roots go back to English common law, when being caught outside your  parish of birth without a pass might lead to branding, the laceration of an ear, or, transportation to the colonies.

Email on crushing case load for Houston detained docket, click to enlarge

Many of these cases are for people who have been residing in the vicinity of these courts since they were toddlers or even infants.  (To read more on how a poorly conceptualized idea of citizenship is sustaining these practices in the United States and elsewhere, please go here.)

And guess what?  It's about to get much worse.

At the very time at which the government is throwing more people in ICE jails, they are closing the facility with experienced immigration judges and turning their dockets over to attorneys whom the government itself says lack the expertise necessary for these cases.

The agency's solicitation for the new immigration court says, "Because we have an immediate need to to cover this court, we will consider judges who would otherwise not be eligible to place their names on the reassignment register (for example, due to being on the bench fewer than 24 months or having been recently reassigned...)."

From job announcement of vacancies for immigration court replacing Houston detained court, click to enlarge
The email and a partial response to my request for documents associated with the reassignment of immigration judges caused by shifting the people arrested and the court from the Houston city limits and the opening of a new facility in Conroe, an hour away without traffic reveals the time frame is being pushed back from the fall (now) to late 2018 or early 2019.

Other highlights include 104 immigration judges "in process," apparently referring to IJs being hired or moved around (p. 2); Powell and Chris Brisack as two of the five IJs to be assigned to the new court, to be called the Montgomery Processing Center (MPC) (p. 3); individual IJ dockets ranging from 1 (from an IJ who retired years ago) to 603 for Walton at the Houston detained courts (p. 15); the three current IJs for the Houston detained docket will be moving to the non-detained docket downtown (p. 52);


Compared to Judge Brisack's denial rate of 83.6 percent, nationally during this same period, immigration court judges denied 52.8 percent of asylum claims. In the Houston Immigration Court where Judge Brisack was based, judges there denied asylum 87.1 percent of the time.  

Compared to Judge Powell's denial rate of 78.8 percent, nationally during this same period, immigration court judges denied 52.8 percent of asylum claims. In the Los Fresnos Immigration Court where Judge Powell was based, judges there denied asylum 77.4 percent of the time. 

Brisack is currently working at the non-detained Houston immigration court.  TRAC says Powell was at Los Fresnos (Port Isabel) in 2017, but EOIR's list of IJs there now omits him.

The closing of the current Houston detained court alongside a transfer of its operations to an expanded GEO facility in Conroe, Texas, about 45 minutes north, will create an enormous burden on attorneys based in Houston, and thus mean more costly and less accessible representation.


When observing with Northwestern students the detained hearings at Houston for three days in June, I heard from guards and other officials that CCA's contract with ICE was lapsing and it would operate its prison under a new contract with the U.S. Marshals.  There was a lot of fuzziness and I figured it would be helpful to have a sense of exactly who was going where and when, so I filed a records request, the results of which are above.

Also while in Houston, I was told that the new facility will incarcerate people who are now held in Houston CCA as well as the Livingston, Polk County jail, and that Polk County, under attack by civil rights groups for a decade, will discontinue its ICE contracts and subcontracts with MTC, a firm that has a horrifying track record, including riots and forced labor at the Livingstone facility.  At the time we were there, Polk County was the site of grisly outbreaks of infectious diseases and people missed hearings because they were in quarantine.  (I'm waiting for ICE's response to my requests for the reports on this, a FOIA case that is now in litigation.)

I also heard an account that the facility, run by a firm that is the country's third largest private prison operator, was returning to plantation slavery and driving folks held there, most of whom seemed to be long-term U.S. residents, to pick crops.  Someone whose hearing I observed reported to me that he was taken on a bus about 90 minutes away from the facility to work on a farm.  He reported that he and others detained at Polk County spent the day picking fruit and vegetables and collecting eggs.  He further reported that they were taken there on a bus at six a.m. and returned around 5 p.m., and that their pay was $1.  He was horrified and said that he did this just one day. 

I shared this lead with a reporter who was unable to find additional information, so I figured I'd report it here.  (If someone wants to be a whistle blower, let me know! jackiestevens AT

The new court replacing the one in the Houston Processing Center will be called the Montgomery Processing Center (MPC) and will be handling people detained at Joe Corley, in Conroe, and also the new facility adjacent to it, also owned GEO.

Google map satellite view of GEO's Joe Corley Detention Facility and new Montgomery Processing Center,
W. Cartwright Rd, Highway 336, Conroe, Texas
There is a row of prisons on a dead-end street alongside a highway, including one for people with mental disabilities.  When students and I walked around to inspect the mammoth GEO facility under construction -- it was around 6:30 pm and the site was active -- we saw through a modest cage around a small yard people in white uniforms at the adjacent jail.  They were walking silently, slowly in circles at dusk.  The scene would send shivers down the spine of anyone with a calendar for 2018. The bulldozers in the construction site were awaiting the next morning's orders to shift earth to make way for a new building where clerks, guards, attorneys, immigration judges, and those whose bad luck of birth made them a "case" and removed them from society will all together spend endless, pointless days in concrete tombs for zombies.  In the name of law, we lock ourselves up by edicts, a point Lon Fuller made when he explained the validity of war crime trials for Nazi officials.  (The eight criteria for the rule of law inevitably go unmet in the exercise of national sovereignty.)  In the name of rationality, there is only madness, stupidity, and dollars for those too craven for shame and justice.

Tuesday, September 18, 2018

How Many Errors are in this Graphic on U.S. Citizens in ICE Custody Published in the Los Angeles Times?

A few days ago a reporter from the Los Angeles Times reminded me of what journalism looks like when it works.  And that reminded me of what it looks like when undertaken by his colleagues Paige St. John and Joel Rubin.  Their article makes bogus claims about ICE reviews of claims of U.S. citizenship and announces breaking news on immigration court adjournments of cases of U.S. citizens that another reporter broke eight months earlier.

My analysis of their article and some new information from ICE attorneys reviewing claims of U.S. citizenship is here.

The primary audiences for this are the Los Angeles Times editor, journalists covering deportation, and folks interested in operational information on how ICE reviews claims of U.S. citizenship.

Thursday, July 12, 2018

ICE Turning U.S. Citizens Over to DHHS? Are Those under Five of "Unknown Parentage" U.S. Citizens?

A reporter from Buzzfeed, Amber Jamieson, brought to my attention a passage from today's Declaration indicating that at least one U.S. citizen may be in the custody of Department of Health and Human Services.

Her article states:
A child under the age of 5 remains detained by the federal government after being separated from their parent at the US–Mexico border more than a year ago, even though they may be US citizens [sic].
8 CFR 1240.8 says that burden on the government to prove by "clear and convincing evidence" that someone put into removal proceedings is indeed an alien.

Today's declaration states:
One child on the original list has a parent who may or may not be a United States citizen (insufficient information is available to make this determination, and the parent and others are not available to provide that information). The child was separated from her parent in 2015 when her parent was arrested on an outstanding warrant by the U.S. Marshals Service. Defendants have not been aware of the parent’s location since then and they remain unable to locate that parent. 
A child in a class of those under 5 years old and taken into custody in 2015 could have been no more than 2 years old at the time of the separation.  If that child has been incommunicado from any relatives, then the child would have no information on where she was born.  Assuming that the child had no identification at the time her parent was arrested on an outstanding warrant -- which implies that the parent had been living in the U.S. for enough time to accumulate an outstanding warrant -- then it seems not only unlikely that ICE would have evidence of the child's alienage but also likely that the child was born in the United States.

What happened to this parent?  The U.S. Marshals could find the parent because of an outstanding warrant but a judge's order to do so leaves them coming up short? 

"Foundling" Law
Another possible scenario is that the government does not know who the child's parent even is.  This has been broached in some cases but I have not heard anyone make the point that each and every one of such individuals is by law a U.S. citizen.

According to 8 USC 1401, "The following shall be nationals and citizens of the United States at birth":
a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.
In short, the U.S. government can collect all the DNA that it wants, but if they cannot match the children with a known parent, and cannot prove they were not born in the United States, then these children are effectively of "unknown parentage found in the United States" and they all are legally  U.S. citizens at birth.

UPDATE 9:15 pm: Amber Jamieson posted on Twitter stating that ICE says the possible US citizen parent in question presented herself and her son "born in Mexico" at the border in 2015 and that she was then taken into custody because of an outstanding warrant.  Once more a credible journalist  repeats ICE's claims without a shred of evidence or verification.  If ICE has hard evidence of this, why wasn't it in the Declaration, one necessary to show compliance with a court order? Why not release the documents?  The same government that claims it cannot now locate the mother expects, alas correctly, a compliant media will reprint their assertions about her background, just because they said so.
Why are reporters continuing to print statements from official ICE-dom when that agency has been demonstrably lying about US citizens detained and deported for decades?  Maybe this time ICE is right but the media is supposed to print the truth that it has verified, and not amplify whatever propaganda the government feeds them.

Thursday, April 5, 2018

Q and A on "When Migrants are Treated Like Slaves," New York Times

For those who have seen the opinion piece in today's New York Times, here's a quick Q and A.

Q.  The work is not at gunpoint.  People are signing up for $1/day.  Why isn't this "volunteer" labor, like GEO and CoreCivic claim it is?
A.  First, some of it is coerced, e.g., the crews for janitorial cleaning of showers or ad hoc work ordered by guards on threat of punishment.  Second, the paid work doesn't meet the definition of a "volunteer" in our labor law.  A federal regulation defines a "volunteer" as someone who is donating time for no pay to a government organization or a nonprofit.  Nothing about people working to earn money to pay for phone calls or food in a private prison meets this definition.

Q.  Who are the 18 Republicans who favor forced labor?
A.  Here's the letter they sent.  See for yourself.

Q.  Why is this happening now?
A.  Because a brilliant team of civil rights attorneys and nonprofits took a risk and initiated this laborious and expensive litigation, beginning in Aurora, Colorado.  For the appeal, a number of organizations wrote amicus briefs.

Q.  Why am I just learning about this now?
A.  There has been a smattering of press coverage about this but our country suffers from chronic legal illiteracy.  This makes it tough for most journalists to cover the nuts and bolts financing of private prisons, and kleptocracy in general.  Reporters may not understand the law and the lack of public common sense on these matters means a lot more details are required to explain the litigation.  Matt Casler and Anya Patel, Eva Jefferson Paterson Fellows at the Deportation Research Clinic, will be writing a letter responding to the one signed by the 18 Republicans and explain their errors in more detail, as well as the relation between investment firms and private prisons.

Plus, ICE has most of the information and is not eager to share.  It took years of FOIA requests and litigation to obtain the information presented in the opinion piece.  (Thanks to Andrew Free for all his work on this, and on these cases.)

Q.  Is it really "slavery"?
A.   The labor typically is not outdoors and people are not being lashed with whips. That said, guards do round up details of those in ICE custody to work under grim conditions (back-breaking manual labor, toxic chemicals, no breaks) and refusals elicit punishment.  Also, most of the history of slavery was not plantation slavery.  There was early modern prison work, work deported vagrants performed in the colonies, e.g., building fortresses in Georgia, and, of course, the Nazi labor camps readers have mentioned in email to me today.  Until the fifteenth century, slavery was the work required of captured foreigners.  This form of slavery was practiced pervasively and for most of the history of the world.

Q.  Where can I read more about the harms of birthright citizenship, and the connections among nation-state, slavery, and war?
A.  For a critique of birthright citizenship, see Citizenship in Question: Evidentiary Birthright and Statelessness (Duke University Press, 2017).  You can download it courtesy of Knowledge Unlatched at no cost.  For a critique of intergenerational identity politics, especially nationalism, and analysis of the connections among the nation, slavery, and war, see States Without Nations: Citizenship for Mortals (Columbia University Press, 2009).
And if you're into political theory and want to understand political membership -- in the nation, ethnicity, race, the family, and religion -- see Reproducing the State (Princeton University Press, 1999).

Friday, December 8, 2017

Historic Court Orders Allow State of Washington and Chao Chen to Sue GEO for Minimum Wage Violations

And listen below to November 15, 2017 oral argument before the 10th Circuit Appellate Court panel reviewing class certification in Menocal, et al. v. The GEO Group,  case no. 17-1125, before MATHESON, BACHARACH, and McHUGH, Circuit Judges. 

Image result for clip art of domestic slavery
New York Times

Federal district court judge Robert Bryan in the Western District of Washington State on December 6, 2017 filed two orders denying GEO's motions to dismiss the latest lawsuits seeking damages for violating employment laws.

For the first time, a federal judge has taken a plain text approach to the 1950 statute authorizing compensation to people in custody under immigration laws and noted that the absence of any appropriations since 1978, as required by the authorizing statute, means there is no law authorizing exemptions from state or federal minimum wage laws.

In responding to Chao Chen's complaint, GEO's attorneys argued that federal laws preempted actions against GEO brought under state laws.  In particular, GEO claimed, the 1986 Immigration Reform and Control Act (IRCA), the federal management of immigration detention, and the federal policy goals served by GEO's work program for U.S. citizens and residents detained under immigration laws preempted any claims under state law challenging the employment of immigrants.  

The judge found that IRCA did not expressly preempt state action on wages.  He also rejected the more general claim about preemption: 
Defendant has assembled a hodgepodge of federal statutes and argues that Congress intends to regulate the field of immigration detention generally, including detainee wages. See Dkt. 16 at FN16, citing 8 U.S.C. §§1103, 1225, 1226, 1226a, 1231, 1324a, 1555(d). Surveying the authority from Defendant, it cannot be said, with any degree of clarity, that Congress intends to occupy the field of detainee wages. At best, Defendant has highlighted general sources of authority for ICE agency action, but as discussed below, ICE has not created a regulatory scheme preempting state law through its policies, including the Voluntary Work Program. (Doc 28, p. 9).  
He concluded that "There is no showing that Congress intended for its general appropriations after 1979 to delegate to ICE the authority to preempt state law as to detainee wages" (Doc. 28, p. 11).

Judge Bryan found that the conflict preemption argument was "premature" because it referenced facts and these were inadmissible for a motion to dismiss, and he found the "obstacle" preemption argument "wandering and opaque" (Doc. 28, p. 11).

Of special note is that Judge Bryan rejected GEO's invitation to follow non-precedential analysis in Alvarado Guevara v. INS as taken up in other recent cases, including Menocal, which allowed the lawsuit to proceed based on the allegations of violating the prohibitions against forced labor int eh Trafficking Victims Protection Act and the common law prohibiting unjust enrichment : "Neither Menocal, Whyte, nor Alvarado is binding precedent, and in this Court’s view, extending the logic of Alvarado to interpret this State’s statutory exception to include federal detainees moves beyond interpretation to legislation" (Doc. 28, p. 14).  In other words, just because it might be the case that Congress hates immigrants and a majority at some point may have wanted them to be exploited, there's no law that actually permits this, and there are laws that require firms to pay people according to the minimum wage laws, including those without legal authorization to be paid to work.

In response to a similar complaint filed by the State of Washington last September, and reviewed during the same oral argument, Judge Bryan rejected the same arguments he rejected in the Chen case, and also challenged GEO's conflation of historical practice with legislative intent: 
Admittedly, at first blush the issue of preemption would seem to favor Defendant, given the long history of federal legislation and agency action in the area of immigration detention generally. After peeling back the rhetoric and examining the actual statutes and regulations, on the issue of detainee wages, an area of traditional state prerogative, the Court cannot find evidence of congressional intent—either express or implied—sufficient to overcome the presumption against preemption. Defendant’s motion to dismiss based on preemption should be denied. (Doc. 29, pp. 11-12).
The oral argument for this case is presently being transcribed. (Andrew Free, my FOIA attorney, presented the oral argument for the Plaintiff.)  As soon as it is available, I will post it here.  For a more extended analysis of the laws and legislative history that support Judge Bryan's analysis, please see Jacqueline Stevens, "One Dollar Per Day, The Slaving Wages of Immigration Jail: 1942 to Present," Georgetown Immigration Law Journal (2015/16).

In my more recent research, I encountered clear evidence that the federal government did not in earlier time frames treat those in custody under immigration law as prisoners.  Nor did it require janitorial or other work. A New York Times Magazine article in 1950 urging Ellis Island no longer hold new immigrants noted the "civil servants" who maintained the facility, including cleaning personal quarters, and the 10 cents/hour then paid for kitchen volunteers:
Unarmed guards, freedom of communication, second helpings at mealtime, a school for the children, an excellent hospital for the sick, a constant effort on the part of the officials to make themselves approachable, if not always informative -- all these are signs we are not aping Hitler's concentration camp methods. Or Stalin's labor camps, either. No one has to work at Ellis Island. (A.H. Ruskin 1950, p. 78).
Ruskin noted as well, "The authorities do not require any of the immigrants or deportees to make their beds or clean their rooms. Some do. Most don't. When they don't, regular civil service cleaners do the job" (Ruskin 1950, 75).  (This research is for my contribution to a volume on prison work and includes research on the transition from these boarding arrangements for immigrants to the implementation of a private prison system for housing people in the 1980s; these operational changes were not accompanied by legal changes.)

Menocal et. al. v The GEO Group, case no. 17-1125
See Washington Post article for more on Menocal and class certification last spring.
Also on point for the litigation against GEO's profiteering from the labor of those in its custody was the November oral argument before the Tenth Circuit's three-judge panel in November.  You can listen to that here.  The judges posed some sharp questions of the GEO attorney, even provoking an unsolicited claim that since the folks GEO held were willing to work for $1/day, we should infer that they are never being forced to work because $1/day is effectively nothing.

A judge references another class action precedent on typicality and states:
Isn't it similar here, that there's an inference that's very easy to be made here, that when the people were detained and they're under a policy where they can be disciplined, including in isolation, segregation, that they worked because they didn't want to be punished?
GEO's counsel replies:
It was a simple matter in CVC but it's not here...Here's it's a very human calculus. We're talking about detainees who, say in the housekeeping program, might be put on a list of six to clean once a week or something like that. They make a decision each time whether they're going to consent to work or not.
Another judge interjects:
Or eat, or be put in isolation, right? I mean, slaves had a choice, right? Your point in answering Judge McHugh is they had a choice, right? Well, the sanitation policy didn't give them a choice. Now, they may have had a choice of whether we are going to face the consequences of violating the sanitation policy. But the sanitation policy, would you agree, was mandatory.

The sanitation policy, yes, the sanitation policy is something all detainees are subject to. However, what we're talking about at the end of the day is whether these plaintiffs are entitled to damages in a court, whether a court is going to order GEO to pay damages.
JUDGE: That may be later down the road, on the merits.    
GEO: The inference the district court drew was unacceptable. 
JUDGE: I don't think it was the district court that drew the actual inference. The district court said a jury could draw the inference. Am I missing something there? 
GEO:  That's fair, your honor.

The second exchange of note went as follows:
JUDGE:  Is there anything in the record that suggests the existence of an individualized proof that some of the detainees worked for reasons other than the policy?
GEO [Referring to Plaintiff declarations]:  Every one of them contain two paragraphs. One is a paragraph that says, "I performed housecleaning chores because I didn't want to be put in disciplinary segregation." The second paragraph says, I volunteered to work one or more jobs in the Volunteer Work Program. Does that make sense? Does that make sense that the same detainees would be volunteering to step up and work in a variety of jobs in food services and laundry for a dollar a day but yet at the same time say they only performed occasional housekeeping chores... 
JUDGE:  They're different programs.
GEO:   On the ground there's really not a difference. Does the dollar a day make a complete difference? To me it's really kind of a lawyerish distinction.

When I played the MP3 last week for my students they were dumbstruck and we had to listen to that section again.  Sure, for the GEO lawyer who has $10 in change in his car seats $1 = 0, but for the folks who need the $1 to buy some ramen noodles or deodorant, it's a wage and they use it to purchase commodities.  GEO is basically admitting that they are effectively paying nothing to people in exchange for their labor.  Rather than express shame and self-loathing for his role in this scheme, GEO's attorney suggests the availability of labor for $1/day means GEO has lucked into happy slaves and they prefer to work and the six people chosen to clean each day allows each individual detained the sought for opportunity of rotating through their shifts to alleviate their boredom.

Thursday, September 28, 2017

The Attorney General of Washington Is Suing GEO!!! And So Are the Workers...

Aurora Detention Facility

Aurora, Colorado, where GEO warehouses immigrants and forces them to clean the stock rooms on threat of solitary confinement.  Is the lawsuit a death knell to GEO's business model, or a possible small glitch?  The answer depends...on whether they're talking to an Appellate Court or their stockholders.

A district court judge in Colorado gave the green light in February for a class action lawsuit against the private prison firm GEO.   Next up was the the complaint filed in Otay Mesa, California on May 31, 2017.  Then, last week, a state government launched an historic lawsuit against the private prison firm.

On September 20, the Attorney General for the State of Washington stepped up to the plate, charging GEO with violating the state's minimum wage laws and also "unjust enrichment."

And as if that weren't bad enough for GEO, on September 26 a team of private attorneys in Washington came in to clean up on behalf of GEO Tacoma's detained employee Chen Chao, including Andrew Free, who is part of the original group suing GEO in Aurora (and the attorney who represents the DRC in our FOIA litigation).  

GEO's stock, now around $26.40, is continuing on a downward trend from its year high in April, 2016 of $34.  In light of the recent filing, it's surprising it isn't lower.  Maybe that's because GEO is telling the Appellate judges one thing and their stockholders something else. 

GEO in their 2016 annual report admitted being sued by the state of Mississippi.  The report states that they are being accused of... 
violations of various public servant statutes, racketeering activity, antitrust law, civil conspiracy, unjust enrichment and fraud. The complaint seeks compensatory damages, punitive damages, exemplary damages, forfeiture of all money received by the defendants, restitution, interest, attorneys’ fees, other costs, and such other expenses or damages as the court may deem proper. The complaint claims that between 2007 and 2014, the Company and Cornell Companies, Inc. received approximately $256 million in proceeds from public contracts paid for by the State of Mississippi. The Company intends to take all necessary steps to vigorously defend itself and Cornell Companies, Inc. The Company has not recorded an accrual relating to this matter at this time, as a loss is not considered probable or reasonably estimable at this preliminary stage of the lawsuit.
In the SEC update released for the period ending June 30, 2017, GEO noted the Aurora litigation:
On October 22, 2014, nine current and former civil immigration detainees who were detained at the Aurora Immigration Detention Center filed a purported class action lawsuit against the Company in the United States District Court for the District of Colorado (the “Court”). The complaint alleged that the Company was in violation of the Colorado Minimum Wages of Workers Act and the Trafficking Victims Protection Act, and claimed that the Company was unjustly enriched as a result of the level of payment that the detainees received for work performed at the facility, even though the voluntary work program as well as the wage rates and standards associated with the program that are at issue in this case are authorized by the Federal government under guidelines approved by the United States Congress. On July 6, 2015, the Court granted the Company’s motion to dismiss the claim against the Company under the Colorado Minimum Wages of Workers Act but otherwise denied the Company’s motion to dismiss. On February 27, 2017, the Court granted the plaintiffs’ motion for class certification. The Court ordered the parties to file a revised Proposed Stipulated Scheduling and Discovery Order by March 27, 2017 to proceed with the case. On March 13, 2017, GEO filed for permission to appeal this class certification order directly to the 10th Circuit Court of Appeal. On April 11, 2017, the 10th Circuit Court of Appeal granted GEO’s petition to hear the case. As a result, GEO has filed a motion to stay the proceedings in the trial court. Fact discovery in the case has not yet begun. The plaintiffs seek actual damages, compensatory damages, exemplary damages, punitive damages, restitution, attorneys’ fees and costs, and such other relief as the Court may deem proper. The Company intends to take all necessary steps to vigorously defend itself and has consistently refuted the allegations and claims in the lawsuit. The Company has not recorded an accrual relating to this matter at this time, as a loss is not considered probable nor reasonably estimable at this state of the lawsuit. If the Company had to change the level of compensation under the voluntary work program, or to substitute employee work for voluntary work, this could increase costs of operating these facilities. (Emphasis added.)
How can it be the case that on June 30, 2017 the company calmly reports that changing the level of compensation "could increase costs of operating these facilities" even though in March, GEO filed an apoplectic petition with the 10th Circuit asserting a very different risk scenario:
[T]he district court's novel certification of a class comprising all people detained at the Facility over the past ten years poses a potentially catastrophic risk to GEO's ability to honor its contracts with the federal government. And the skeleton of this suit could potentially be refiled against privately operated facilities across the United States, causing GEO and other contractors to defend them even though GEO firmly believes that policies give the Plaintiffs no legal claim. (Appellee Petition, 03/13/2017 at 30, emphasis added). 
Which outcome represents GEO's true position on its future ICE contracts if it loses these lawsuits?  Is it merely that a loss "could increase costs of operating these facilities"? Or does the Aurora lawsuit pose a "catastrophic risk"  to GEO's capacity to honor its ICE contracts?  Looks like ICE detainees aren't the only ones who may have a claim of Unjust Enrichment against GEO's directors.

Thursday, June 29, 2017

Eleventh Circuit Appellate Panel Hears Oral Argument on IJ Who Tossed Professor out of Building

Attorney Bruce Brown
On Tuesday, June 27 I had the honor of observing my attorney Bruce Brown present an oral argument on Stevens v. the Attorney General before a panel of three Eleventh Circuit judges in the Atlanta Appellate Court building on Forsyth St., a million miles from the arc of the moral universe that bottoms out at 180 Spring St., SW, the home of Atlanta's immigration courts, though just a few seconds distant as the crow flies.

You can stream or download the 39 minute hearing.  Attorney Ray Lerer, who has been with me in this since 2012, was in the second chair.  I am incredibly grateful to both of them.

The backstory is that over seven years ago a cranky and duplicitous INS prosecutor hired by the Executive Office of Immigration Review (EOIR) to wear a black robe and rubber stamp removal orders, closed a hearing improperly and then 20 minutes after I had left the courtroom ordered guards to remove me from the building.  I filed a misconduct complaint.  William Cassidy, the attorney-in-the-robe, then colluded with his friend and the guy supervising the investigation, Gary Smith, and claimed that Cassidy never ordered me removed from the building.  This cover-up was in the official letter closing my complaint in June, 2010, a few months after I was thrown out.

Next I filed a request under the Freedom of Information Act and obtained a contemporaneous transcript of the Paragon Security Guard Nathaniel Hayes telling the Battle Creek MegaCenter Operator that he threw me out because "the judge" told him to and that he had no idea what was going on until after he returned and learned EOIR was trying to ban me from immigration hearings.

Then I filed a pro se Complaint and a few months later the law firm of Keegan Federal (the Federal Firm) stepped in.

From left to right, Atlanta City Attorney Jeremy Berry (foreground), Ray Lerer, Bruce Brown after hearing

Through discovery we learned that EOIR's general counsel contacted the agency that handles federal building security to keep me out.  DHS informed EOIR that they couldn't just ban someone but first would need a policy. EOIR couldn't openly say "people critical of IJs and EOIR cannot enter immigration courts" and dropped the matter.

That said, Cassidy recently said as much to law students from Emory Law School who, with the Southern Poverty Law Center, released a letter they sent to the Executive Office of Immigration Review (EOIR) a few months ago about the ridiculous nonsense that passes as law in the Atlanta immigration courts:
The investigation found that during a hearing where Judge William Cassidy rejected a request for bond, he compared an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood.” In a private conversation after a case, Cassidy told an observer for the project that the United States should be more like Russia, noting that “if you come to America, you must speak English.” Cassidy also said his cases involve people “trying to scam the system” and that none of them want to be citizens.
 The Emory Law School/SPLC letter to EOIR Director Juan Osuna states:
IJ Cassidy described why he sometimes did not permit observers in his court, although Immigration Court proceedings are open to the public. IJ Cassidy expressed dismay about “reporters who write all sorts of things about me.”
He continued: “I just follow the law. When you have an uninvited guest in your home, what do you do? You have to tell them to leave.”  IJ Cassidy then provided explanations for comments made during the proceedings. He promised the observer, “let me know if you want to clerk for us. Petition for it and I will put in a good word for you.” 
One observer noted in a later proceeding that IJ Cassidy glanced at him when he spoke harshly to a witness before apologizing and stating, “I did not intend to be abrupt.” In their conversation after the hearing, the observer reported that IJ Cassidy asked whether the observer thought he was “mean or harsh” in his ruling. He sought to explain to another observer why he ruled the way he did and then asked how the observers would use the information they have gathered. 
The panel on Tuesday -- a Reagan appointee, an Obama appointee who was a former public defender, and an Obama appointee who was a former prosecutor -- appeared to have decided in advance that the case would hang on whether or not immigration judges have absolute judicial immunity based on case law conferring an "inherent judicial function" to a penumbra of actions for real judges or Administrative Law Judges employed under the Administrative Procedures Act.

A sad coda to all this is that MaryBeth Keller, who was the person who coordinated the investigation of my complaint by first convening a meeting with the people trying to ban me to "avoid a right hand/left hand" situation, to quote from her email in 2010, and who squashed numerous misconduct investigations under her supervision by officially categorizing complaints as "frivolous" despite her own notes indicating they were not--including allegations of bribery at the Dallas immigration court-- and should have been fired for this many times, was promoted by the Obama administration to Chief Immigration Judge.

Atlanta's "Immigration Courts": Where Judge Judy might end up after she retires from her reality TV show

Here's the wonky history informing our argument that Immigration "Judge" William Cassidy has more in common with Judge Judy than he does with any of the judges in the Forsyth building.

As you'll see, both the phrases "immigration judge" and "immigration court" are created by agency via housekeeping rules with no review and no claim to map onto any underlying functions that are either those of courts (which must maintain independent records), nor recognizably judicial.

1.  In 1950, the Supreme Court in Wong Sang v. McGrath, Attorney General, ruled that a deportation order was unconstitutional because the "special inquiry officer" ordering the removal was not employed nor the hearings conducted under the Administrative Procedures Act:
But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process. We find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner.")
2.  A couple months later, in a Senate Appropriations Hearing, the Supreme Court mandate is discussed.  Only economic considerations are taken into account and the Appropriations Act includes a proviso that explicitly mandates immigration hearings be conducted outside the provisions of the Administrative Procedures Act.
from 1950 Appropriations Hearing
Senator McCARRAN. The committee has just one other question here. In regard to the 1951 appropriation, what will be the effect of the Supreme Court decision in the case of Sung v. U. S., wherein they invalidated the system previously used by the Immigration Service, in having the same inspector act as both the investigative officer and the hearing officer at deportation proceedings? What have you to say to that? 
Mr. MILLER. We have an estimate before the Bureau of the Budget at the present moment, which involves something like $25,000,000 of this sum of about $20,000,000 is for the cost of conducting hearings on the southern frontier and $5,000,000 for other types of cases. One very perplexing phase of that is the necessity, upon application, to get such hearings under the APA Act. 
The Mexicans they apprehend are returned to Mexico. There were over 232,000 Mexicans apprehended in the first 6 months of this fiscal year. They were not all different persons because there are some repeats, of course. That means a half million a year. Right now they are demanding and receiving hearings under 19 (c) suspension of deportation on the ground of economic detriment to American-born children or American spouses, for example. That discretionary relief was, of course, granted and approved by Congress. 
It might in one single instance fix the status in this country of maybe a husband and wife and maybe 12 children, with just 1 of them having been born in this country, usually very shortly after arrival. If we have to give hearings under the Administrative ProcedureAct, and a number of attorneys along the border, I think quite properly, legitimately, are applying for recognition to practice before our service, I think it is going to be a terrific problem. It might possibly cost $150,000,000. 
Probably in 10 years we could give hearings to a half million applicants, we will say. But we will possibly have a million next year and following years. That problem is increasing from a trickle of 10,000 in the last 10 years to this figure that I have just given you. 
Mr. Chairman, may I ask a question about another matter?
Senator MCCARRAN. Yes.
That's the entire Congressional response to the Supreme Court in Sung.

Next item!"

Here's the language in the Supplemental Appropriations Act passed shortly after the above exchange, in which Congress uses ye olde Plenary Authority:

Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7,and 8 of the Administrative Procedure Act (5 . S. C. 1004, 1006, 1007).
One sentence.  Not much longer than "screw you" and not much different. No due process rights for aliens, or U.S. citizens profiled as such.  

3.  As far as open hearings: the hearings before Special Inquiry Officers were not explicitly required to be open to the public until 1965, when the Department of Justice approved a rule change revising 8 CFR 2.16 in language that largely tracks that of the current 8 CFR 1003.27.

4.  1973: Here Come the "Judge"   -  Another federal rule change allowed for "immigration judge" to be used interchangeably with "special inquiry officer," but without one single substantive change in functions, as emphasized by the fact that a formal, public rule change procedure was not followed.
Immigration Judge
Pursuant to 5 U.S.C. 552 and the authority contained in 8 U.S.C. 1103 and 8 CFR 2.1, part 1 of chapter I of title 8 of the Code of Federal Regulations, as hereinafter set forth, Is amended to provide that the terms "immigration judge" and "special inquiry officer" may be used interchangeably.
Section 1.1 is amended by adding at the end thereof a new paragraph (1) to read as follows: § 1.1 Definitions 
(1) The term "immigration judge" means special inquiry officer and may be used interchangeably with the term special inquiry officer wherever it appears in this chapter.
Compliance with the. provisions of 5 U.S.C. 553 (80 Stat. 383) as to notice of proposed rulemaking and delayed effective date is unnecessary in, this instance and would serve no useful purpose because the amendment to § 1.1 relates to a rule of agency organization.
5.  1983  Executive Office of Immigration Review is created.  Again, no formal rule-making process occurs.  It should be noted that through this time period, there are no "immigration courts," only "reviews" and "proceedings."

6.  1987  EOIR makes substantive changes to regulations, including removing the language added in 1965 to require the special inquiry officers to follow the Federal Rules of Civil Procedure whenever possible.

7.  1995 EOIR waves a magic wand and creates "immigration courts," but, like the name change to "immigration judges," provides zero substantive changes.
This final rule amends 8 CFR 3, 103, 204, 208, 212, 236, 240, 242, 245, and 292 by replacing the tribunal name "Office of the Immigration Judge" with the tribunal name "Immigration Court." This rule codifies current usage of the term "Immigration Court" in reference to deportation and exclusion proceedings conducted before Immigration Judges throughout the United States. The rule makes no substantive changes in Immigration Judge proceedings.
EFFECTIVE DATE: This final rule is effective on June 30, 1995 except that the amendment to Sec. 242.1(a) as revised at 59 FR 42414, August 17, 1994, is effective August 17, 1995.
SUPPLEMENTARY INFORMATION: The final rule is a nomenclature change. The rule changes the name of the administrative tribunal which initially hears deportation and exclusion proceedings from "Office of the Immigration Judge" to "Immigration Court."
 So first the agency invents the "immigration judge" and then, inspired by its own fiction, decides if there is a judge, there must be a court!

In the interests of truth in advertising, at the beginning of each hearing the IJs should be forced to make the following announcement: "Just to be clear, this [motions to the dais and seal] is only a 'court' in nomenclature.  And the title?  Some DOJ colleagues made it up a few decades ago without telling anyone first.  The robe?  Do you have any idea how much laundry I avoid with this?  And that nonsense about 'the whole truth and nothing but the truth?'  Hah!  The truth is that there are no independent records created, as would be required for a real court.  I get to create the record all by myself when I push this record button on and off, as the regulation authorizes."

The Weeds
The District Court dismissed my case because EOIR does not make these statements but ignores the statutes and regulations and pretends these are real courts and judges.  District Court Judge Orinda Evans was tricked by this and granted Cassidy absolute judicial immunity, claiming that since real judges can order guards around based on "inherent judicial functions," so, too, can Cassidy.

The ruling fails to grapple with basic tenets of statutory construction: Congress has spoken very clearly and specifically on the authority available immigration judges.  Unlike Article I courts, i.e., courts of record Congress created and to whom they gave contempt authority and authority over the U.S. marshals, and unlike Article III judges, Congress has deliberately restricted IJ contempt authority to civil fines, which the Attorney General has not implemented.  Congress also has limited the independence of IJs, whose decisions may be fashioned at the behest of the Attorney General, to whom they report and who controls their salaries.  (During the hearing Judge Williams pointed out that Cassidy ordering the guards to push me out after talking with headquarters would not occur under the APA.)

As to the question of what IJs should do if there are disturbances: there are thousands of federal employees across the country who make decisions in tense situations and disappoint petitioners, taxpayers, and other citizens every day: they and anyone else feeling unsafe in a federal building may alert a guard.  Either the guard encounters the disturbance in real time and makes an arrest or intervention based on reasonable suspicion of a crime, or an arrest report or request for a restraining order is created.  You don't need to give everyone who works in a federal building absolute judicial immunity in order to maintain order.  Judge Williams came pretty close to stating a version of this in her questioning of the government's attorney, Chris Hollis.  And of course all immigration proceedings throughout the country are in spaces accessible only after passing through a metal detector.

We are not challenging the Constitutionality of IJs to close hearings (though I would like to), but rather making the claim that since the regulation makes the hearings presumptively public, the IJ can't close them because a critic is present.  8 CFR 1003.27 is a federal regulation titled "Public Access to Hearings." The first phrase states, "All hearings, other than exclusion hearings, shall be open to the public." It also gives the immigration judge discretion to close them.

This regulation is similar to any other administrative or legislative body that opens its proceedings to public scrutiny as a matter of course. The First Amendment claim is not whether the discretion afforded EOIR in regulating access is too broad, but whether in implementing this discretion, EOIR employees, including immigration judges, court staff, and agency supervisors, can exclude people because of viewpoint. The First Amendment case law on this is clear that they may not.  (Our record is overflowing with examples of my being tracked and singled out because, as Fran Mooney, in charge of Public Affairs and Building Security put it in the depositions, "she is very critical" of the agency.  (You can find my six articles published in The Nation between 2008-10 here.)

Under our Constitution, proceedings that are generally open to the public may on occasion be closed without turning this discretion into an excuse for subverting public access for unconstitutional reasons. For instance, as we have recently seen, Congress's Judiciary Committee largely meets in public, but on occasion it has closed sessions. Congressional office halls and lobbies are generally open to the public, but some portions are not. And libraries are generally open to the public, but on a schedule determined by library staff, funds permitting.

None of these discretionary restrictions are inconsistent with a government policy requiring access, unless the discretion is based on viewpoint. If the library posts its hours are 9-5 and a librarian, on seeing someone whose religious views he deplores approach and locks the doors, this is no more legal than what EOIR, including Cassidy, did in hiding hearings from me and ordering me pushed out of the building.

Finally, every morning dozens of U.S. citizens show up at immigration courts around the country, don their black robes, and despite and not because of these laws and regulations, adhere to norms of due process and deliver justice as best they can.  Their integrity and fairness redeem our institutions and their character, but do not change the underlying deformities of their supervisors and the agency that cuts their check.

The panel should issue its decision in a few months.  
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