States Without Nations: Citizenship For Mortals, Available on Kindle

(You can go here to order.)

$10 less than the $25 paperback and you can read it on the subway.

US Citizen Deported to Jamaica in 2005, Court Ruling Yesterday Gives Him A Way Back Home

According to a Ninth Circuit decision issued yesterday, Linden Winston Graham has presented material evidence that he was born on the U.S. Virgin Island of St. Croix and is thus a US citizen. The Ninth Circuit, for the reasons stated in the screen shot above, has thus remanded his case to a district court in Arizona, as well as suggested that the court consider returning Mr. Graham from Jamaica at government expense.

Here's an excerpt from a Jamaican newspaper in 2007, describing his ordeal after arriving, stateless, in a foreign country and then being locked up:

Graham, 48, appeared in the Corporate Area Resident Magistrate's Court yesterday after attorney Peter Champagnie filed a writ of habeus corpus on his behalf on Tuesday.

He told the court he was deported to Jamaica after serving nine years for a gun-related crime in a high security prison in Arizona, United States last year, but upon his arrival in Kingston it was discovered that he was not Jamaican.

"We questioned him and found out that he knew nothing about Jamaica. We are satisfied that he is not Jamaican," a police officer told the court yesterday.

For more on the case's background, from 2007, please read here.

Please note that the court is pointing out that the government is "unable or unwilling" to produce the only evidence that could support its position that Linden Winston Graham is an alias of Winston George Graham. Nonetheless, absent this evidence, an immigration judge and the BIA deported the guy! Especially because Mr. Graham is asserting he was born in the United States, the burden of proof to show otherwise would be on the government. Yet it appears that it had none, just the word of an ICE attorney and the black box of their data collection.

(A Department of Homeland Security database matches records with similar names and dates of birth; since the database contains millions of files, such a process will generate false positives. This is not "evidence" of anything but government stupidity and a poor understanding of probability on the part of the EOIR attorneys evaluating the case.)

Mr. Graham's plight, an egregious civil rights violation, is another reason for the courts to recognize that anyone in detention has a constitutional right to an attorney, and that if the respondent cannot afford this, then the government will appoint one.

The only difference between Mr. Graham and Jakadrian Turner is that she was a teenage girl. Both were born in the United States and both were deported on flimsy grounds that would never stand up in a real court for more than two seconds.

Now that the public is starting to pick up on the fact that the government deporting of US citizens is part of the deportation regime, there should be less complacency about continuing to make Mr. Graham fight for his citizenship. Instead of paying tens of thousands of dollars to keep a US citizen out, Janet Napolitano should be sending a first class plane ticket for Mr. Graham's immediate return to the United States.

Of Course ICE Is Deporting Teenage Americans Who Speak No Spanish To Colombia

[document cut here for size, letter dated October 20, 2010]

(Entire settlement here.)

The horrifying experience of Jakadrian Turner, a 14 year-old U.S. citizen who speaks no Spanish but who was deported to Colombia in April, 2011, will come as no surprise to anyone who has been following the systematic law-breaking by Immigration and Customs Enforcement (ICE) officials, and the failure of the Department of Justice to do anything about it.

Rennison Castillo is an army veteran ICE held for nine months even though he had provided documentation of his U.S. citizenship, a claim acknowledged in an apology written by U.S. Assistant Attorney Phil Lynch in October, 2010 as part of the public settlement that included as well $400,000 and Mr. Lynch's reassurances that ICE had new procedures in place to "avoid this happening again to a fellow U.S. [c]itizen."

If ICE is going to hold an Army vet and ignore his pleas for nine months, what chance does a 14 year old girl have of having ICE agents respect her U.S. citizenship?

Mr. Lynch's good intentions notwithstanding, since October, 2010 several cases have been documented of ICE doing not only detaining, but deporting their fellow U.S. citizens, including the still ongoing experiences of a teenager whose human not to mention civil rights were so egregiously violated. This is because ICE is just not used to following the law -- but it is used to bullying people and deporting the evidence.

Another lawsuit settlement ICE appears to have recently violated is Perez-Funez v. District Director, a 1985 case that, according to Maricela Garcia, and according to a USCIS regulation, prohibits ICE from entering into "agreements from unaccompanied children unless they were first given notice of their rights and put in contact with a relative or a nonprofit organization," actions that appear not to have occurred.

Once again, U.S. citizens are the 900 pound gorilla in the mine: if even U.S. citizens are having their rights violated, then we are learning quite a bit about the unlawful treatment of everyone else, for instance, the 15 year-old detained boy who I recently heard via a digital recording in an immigration court for proceedings in Oakdale that deported Andres Robles, a U.S. citizen, in 2008.

The adjudicator who heard the case, John Duck, Jr., presiding over the Oakdale detained docket, never bothered to stop the proceedings to ask the boy if he had spoken with his family about his agreement to be deported, or had been in touch with a nonprofit. This teenager had no criminal convictions, nor did most of the respondents for that master calendar hearing when they agreed to their removal.

Coincidentally all the Notices to Appear announced in the court that day in Oakdale only listed entry dates if they were more recent than ten years; for the majority the date was simply "unknown" and the adjudicator who presided did nothing to ascertain the approximate range of the pro se respondents' entry into the United States much less explain the possibility of relief. (My inference was that if people had been here more than ten years the ICE agents simply omitted this information and the respondents, who had no understanding of what was going on, would not object when the NTA information was reviewed.)

If Mr. Lynch wants to make good on his assurances to Mr. Castillo, then he might want to investigate the ICE agents who deported Ms. Turner for false imprisonment and kidnapping, as well as the possibility of travel document fraud -- how does Ms. Turner make it into Colombia without a passport or any identifying information she is from there, including speaking Spanish?

For "U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens," Virginia Journal of Social Policy and the Law, please go here (115 pp).

UPDATE January 6, 2012: My interview today on "Democracy Now" on the subject of Ms. Turner's deportation and that of other U.S. citizens.

EOIR Fails to File Change of Its Own Chicago Address With Itself

The EOIR issued an official announcement on December 1, 2011 indicating a move on December 7. but it never bothered to change its own web page to reflect this.

DON'T GO HERE!!! (BELOW)

The above is a screen shot from the court listings on the Executive Office of Immigration Review web page for January 3, 2012, almost one month after the courts moved to...

CORRECT ADDRESS

Well, it's sort of the correct address. The EOIR announcement does not explain the complicated scheduling for the detained dockets. Most of these hearings will be moved to the Van Buren address but some individual hearings for the detained docket heard by Eliza Klein will continue to be held at the old address at 536 Clark Street, something that the EOIR has not publicized.

The point of pointing this out is not simply to provide accurate information to people doing google searches or to embarrass the EOIR, which has not updated its webpage since November, 2011, despite a federal regulation requiring the immediate posting of accurate agency information. In addition, it is to highlight how easy it is for people to disseminate inaccurate addresses without this being evidence of fraud or deceit. If a respondent does not file a change of address form within five days of moving, the result could be enforcement of a deportation order in absentia.

The fact that the federal government cannot maintain its own accurate address with itself suggests that deporting people who fail to do this is, well, a bit kooky.

Perhaps the EOIR told respondents where to show up? Maybe, but not according to the pro se respondents who appeared in the court hearings I attended today. They had run the 8+ long blocks from the old EOIR address in 20 degree weather, a fact that came out when the immigration judge asked a master calendar group to make sure to keep the court posted on any change of address. One guy said he received the notice about the hearing today but it had given a different address. When the IJ said the court had mailed out 17,000 announcements of their new location, the response from the five men was that they never received it and one asked what he should do in case the court moves again before his next hearing. (The IJ said she would make a note of the problem and was quite understanding of their plight.)

Also due to the move, the ICE attorney didn't have most of the files, repeatedly responding to inquiries from the IJ by stating that the office was in chaos. Not that the immigration attorneys were much better.

The IJ showed patience with the ICE attorney and the respondents' attorneys -- many of whom also were unprepared -- and simply pushed things back. (In one case it was because the attorney of record was in jail.) The calendar is so clogged up that cases were moved into late 2013 and even 2014, the delays perhaps not that different from ICE using its discretion to close the cases, a procedure that was not implemented once today, even though most of the respondents lacked any criminal records and many had entered legally and were pursuing adjustments of their status through Citizenship and Immigration Services.

New York Times Hides Recent Deportation of US Citizens

My research on the unlawful detention of U.S. citizens was cited in Julia Preston's article today in the New York Times, "Immigration Crackdown Also Snares Americans." Unfortunately, Ms. Preston, whose focus was on situations in which US citizens were briefly detained, added, or her editor did, the following inaccurate sentence: "In no recent cases was an American placed in deportation." In addition, Ms. Preston misquoted me. Here is the email I sent to her this morning requesting that the Times correct the inaccurate statement by removing it.

Julia,

Nice story. You're about to read a long email with evidence to underscore a request for a correction but I want you to know that although I have a problem with an assertion you make, I really appreciate the work you put into documenting the particular cases and highlighting this problem.

I do have a major concern about the line before the last paragraph: "In no recent cases was an American placed in deportation." I have evidence to the contrary. I'm wondering if you could make a correction that removes this sentence entirely or qualifies it by attributing this assertion to ICE, if ICE indeed will make it.

One problem is that the sentence is grammatically incorrect. Someone is either a) "deported"; or b) "in deportation proceedings." The sentence is open to both interpretations. If the former, it is demonstrably inaccurate, i.e., Esteban Tiznado's case (ICE reinstated the old removal order and deported him in late November.) If the latter it is still a problem, depending on the timeframe for "recent" and the fact that ICE should be holding new proceedings if people have probative evidence of US citizenship, not simply rubber-stamping old paperwork. In other words, if ICE is not placing American citizens in deportation proceedings but simply dumping them in Mexico as they did in executing Esteban's Reinstatement of Removal, this is hardly evidence of their correct handling of US citizens.

Moreover, U.S. Americans have been in deportation proceedings recently. Esteban Tiznado has relatives in deportation proceedings now in Arizona.

Also, George Ibarra was locked up in Eloy until last May even though his deportation order was terminated last February by an immigration judge because of the evidence of Ibarra's US citizenship: ICE appealed; BIA remanded and the case is still open. Ibarra, in violation of the Morton policy, was locked up in Eloy pending the appeal, until I wrote about the case and someone from MSNBC arranged an interview w. Ibarra in the detention center.

Ibarra was released without explanation the day the interview was scheduled. (Ted Robbins did a story on this for "All Things Considered" that aired in October or November.)

As I shared with you a couple weeks ago, ICE recently has deported a U.S. citizen, Esteban Tiznado.

Esteban Tiznado was deported November 28 and is definitely a US citizen, and he's stuck in Mexico contemplating suicide because he keeps being deported. I have other cases from this year as well that I've documented -- these are cases in which DHS eventually recognized the US citizenship of the people they'd deported earlier. Actually, ICE deported Esteban's cousin Humberto in 2011 AFTER a US Asst. Attorney wrote ICE and asked them not to deport him because he appeared to be a US citizen.

'm wondering if perhaps you asked the govt. about Esteban and were then deterred by writing about this because of their misrepresentations? The Citizenship and Immigrations (CIS) officer who was representing the govt.'s case during Tiznado's trial was demonstrably misrepresenting the evidence, as I documented on Monday: http://stateswithoutnations.blogspot.com/2011/12/uscis-official-jaime-yslas-testifies.html (A jury did not believe the CIS agent and found Esteban Not Guilty of Illegal Reentry because he is a US citizen.)

There are other problems w. the CIS claims about Esteban's file I won't get into right now. They raise troubling questions about the whole process of how applications for Certificates of US Citizenship on behalf of people born in Mexico are being handled.

Also, I spoke yesterday w. the priest at the mission in southern Arizona that has the Tiznado family baptismal records. CIS questioned the authenticity of the certificate for Esteban's father's baptism, used for procuring a legitimate Arizona delayed birth certificate (no one in that area was given a birth certificate in 1922) but I spoke to the priest at the mission today, following up on my inquiry from last week: they have the contemporaneous 1924 entry of Jesus Tiznado's baptism on their books! Moreover, ICE on Friday called the Florence Project and said that if someone could send them records of Jesus's siblings' US citizenship, they would reevaluate Esteban's case. I have these records for Jesus's older brother Miguel, born in 1916, from Humberto's CIS case. ICE has had these records since Saturday, but still no word on their allowing Esteban back in.

In the event, I understand that you were not doing a story on US citizens being deported but I don't understand why you would then claim that this is not happening, and not qualify it by attributing this claim to ICE.

Finally, the last statement is not what I said: canaries have less of an ability to handle toxic fumes than miners. But US citizens under our laws have more rights to handle the hardships of deportation hearings than do immigrants, and thus, as I said, it's like sending a 900 pound gorilla into the mine. If U.S. citizens are not making it, then that tells us a lot. (I was thinking later that this was a wordy and perhaps clumsy statement and that I should work on my soundbites.) Also, I did not refer to the noncitizens as people here "potentially unlawfully"--I don't use that phrase and for these purposes it isn't useful. The legal distinction as far as rights are concerned is between citizens and noncitizens, and I think, but am not positive I referred to the latter, inelegantly, as "everyone else."

It's okay if you leave the quote as is but in the interests of accuracy I am requesting that you request the deletion of this sentence: "In no recent cases was an American placed in deportation." Again, I am sorry for this inconvenience but hope you can follow up on it as soon as possible.

Best wishes, Jackie

---------------
As of 10:00 CST I have not heard back from either Julia Preston or the National desk editor with whom I also shared this email.

11:15 a.m. I spoke with Ms. Preston and she explained that the sentence initially said that "In none of these cases" of the U.S. citizen on whom she was reporting were U.S. citizens deported, but that during editing those words were removed.

Ms. Preston said that the context of the article made it obvious that the sentence referred only to the U.S. citizens on whom she was reporting but then, when I pointed out that the statement appeared immediately above a quotation from me, and that my research was on national trends, agreed that the placement was "unfortunate" and one could interpret it to be a more sweeping statement. She said that because the statement was accurate "in the context of the article" the Times would not be issuing a correction.

UPDATE January 5, 2012: Just to be clear, the response from the Times is absurd; the context indicates no restriction to the cases on which Ms. Preston is reporting and to say otherwise is to ignore the plain meaning of the words and sentence. Moreover, the assertion could be at best a wild guess because often no one knows about the deportation of US citizens until well past the period of their deportation, e.g., the widely publicized case of Jakadrian Turner, deported in April, 2011. Moreover, I spoke this morning to Manuel Valenzuelas, a US citizen who, along with his brother, Valencia, have been fighting their order of removal for several years. I will post more on their case after I receive the legal documents but the short version is that their mother was born in the United States and thus they automatically acquired citizenship by operation of law at birth. Nonetheless, racial profiling at the El Paso border when they entered the US as children meant they were issued green cards and when ICE matched them up with some minor convictions they were put into removal proceedings; these are ongoing even though they have shared with Homeland Security agents and an immigration judge copies of their birth certificates, their mother's birth certificate, and their mother's death certificate. At no point has anyone accused them of fraud but DHS is trying to make them jump through the hoop of acquiring an N600. Manuel correctly asserts that this is not necessary and the papers he has presented are legally sufficient; nonetheless, ICE won't drop the case and the immigration judges -- one avowing he is under the authority of Homeland Security! -- won't terminate.

USCIS Official Jaime Yslas Testifies Falsely About Dual Citizenship

From the 2008 transcript of the prosecution questioning of USCIS agent Jaime Yslas during Esteban Tiznado's 2008 trial for Illegal Reentry

In addition to the false and misleading testimony of a US government official, this post documents the successful appeal of Esteban's cousin in June, 2011,
relying on the same evidence that also proves Esteban's citizenship

Last week I had the opportunity to read the transcript for Esteban Tiznado's 2008 trial in which an Arizona jury found him "Not Guilty" of Illegal Reentry because the copious evidence of his father's U.S. citizenship was consistent with Esteban's defense of U.S. citizenship, as argued by his court-appointed counsel, Jesse Smith.

The chief witness for the prosecution was Citizenship and Immigration Services (CIS) agent Jaime Yslas who, he asserted, was the "subject matter expert" on citizenship policies for District 25, which encompasses Arizona and Nevada.

If this guy's the "expert" no wonder U.S. citizens are ending up deported.

In addition to partial and misleading characterizations of the case documents and agency practices, Yslas made a statement about dual citizenship and nationality that is simply inaccurate. This and other partial truths Yslas made were all toward the end of depriving Tiznado of his U.S. citizenship.

Throughout the hearing ,the prosecution points out instances in which Tiznado states he is born in Mexico and a citizen of Mexico -- and the defense shows all the statements Tiznado made indicating that he is a U.S. citizen. Tiznado's attorney, Smith, points out that at the various points at which Tiznado failed to appeal his deportations and accepted the government's designation of him as a citizen of Mexico that he was in government custody and that conceding this would be a way to be released from it.

Smith also points out that Tiznado's statements acknowledging birth in Mexico, and thus Mexican citizenship, do not contradict an assertion of U.S. citizenship as well. In response, the prosecution pursues the following line of inquiry with CIS agent Yslas:

Q. Jaime, there's a discussion earlier about dual citizenship. If a person from another country applies for United States citizenship, can he retain or she retain their citizenship from that other country?

A. To become a U.S. citizen, whether you are naturalized or you derive citizenship, you are required to take an oath of allegiance where you denounce citizenship from your original country of birth or citizenship.

Q. So the United States does not recognize dual citizenship?

A. No, sir, but they recognize that other countries will possibly recognize dual citizenship.

This statement is demonstrably false. Here's a correct statement of U.S. policy on dual citizenship, derived from a definition of dual nationality, appearing courtesy of the State Department - drawing on 8 USC 1481 sec. 349 (a) (1):

The concept of dual nationality means that a person is a citizen of two countries at the same time ... Persons may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth.

A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.

Note that there is no requirement for someone who derives citizenship, i.e., obtains it automatically by operation of law, to swear allegiance to the United States, a ludicrous requirement even hypothetically since this happens at birth. Also, the policy statement concludes, "The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause." Note the initial reference to acquiring dual nationality due to an "automatic operation of different laws" -- the circumstance for Esteban's U.S. citizenship -- and the final reference requiring "intent" for relinquishing U.S. citizenship.

(I am quoting from the government paraphrasing 8 USC 1401 sec. 349 to emphasize that the U.S. government's policy of recognizing dual nationality or dual citizenship is the government's own interpretation of the statute, not mine.)

In other words, the CIS expert for District 25, in charge of adjudicating citizenship claims for the last 15 years, either does not know or is deliberately misstating a crucial policy on dual citizenship.

Other issues that come up raising serious questions about how the CIS handling of acquired citizenship claims for people born in Mexico are the time frame for these adjudications and Yslas's statement minimizing the importance of using an attorney when appealing a denial of a claim to U.S. citizenship.

Timeline Problem
The CIS received N-600 applications to award Certificates of U.S. Citizenship to the ten Tiznado children on June 18, 1981. CIS did not even bother to respond to the application until May 5, 1989, EIGHT YEARS LATER!

The Office of Inspector for the Department of Homeland Security (DHS) should look into the response times for N600 applications for people born in Mexico in comparison for those on behalf of people born in other countries -- I don't know anyone of European descent who had to wait EIGHT YEARS for a decision on an application for US citizenship. This delay itself is a sign of bad faith on the part of the CIS.

Mischaracterizing Relevance of Attorneys to an Appeal
CIS allows appeals of its N-600 decisions, for a price. As Smith points out, in 1989 that price as $110/person, or $1,100 for the Tiznado brood, not to mention attorney fees. The prosecution attempts to minimize this by pointing out that attorneys are not required for these appeals, and gets Yslas to play along:

Q: Do most people who apply for citizenship have a lawyer
representing them?

A: Very few do, sir.

The effect here is to suggest that lack of resources for a lawyer is no obstacle to a successful appeal and to further insinuate that the absence of an appeal implies a weak case for the Tiznados' citizenship claims. Both of these inferences are false. Of course an applicant with no legal training and no resources is going to give up, and this says nothing about the viability of their underlying claims. As the government expert and in the interest of justice, it would be Yslas's responsibility to explain this.

Nirav Parikh of the Parikh Law Group, LLC, Heartland Immigration, a national firm, told me his office receives about six inquires daily concerning denials of N-600 applications "from all over the world," estimating "five out of these six are viable, but only one of these five have the financial resources" to hire his firm, and thus about 80% either will not pursue the appeal or do so at a severe disadvantage: "For any appeal you need an attorney, someone who is familiar with the issues," Parikh explained, "You can do anything on your own, but you can't do it well an attorney," a point born out in the Tiznado case in particular.

Successful N-600 Appeal for Humberto Tiznado
As mentioned earlier, Esteban Tiznado's cousin, Humberto Tiznado, also had been deported and also had his initial application for US citizenship turned down. However, an attorney with the Federal Public Defenders office in San Diego, Sara Peloquin, filed an appeal and on June 11, 2011 prevailed. USCIS found that Humberto, who also had been in prison for Illegal Reentry, was indeed a U.S. citizen and that he had acquired this from his father, also called Humberto (and also wrongfully deported in the 1970s).

Humberto's great-grandfather is Esteban's grandfather. The CIS found that the copious documents of Esteban's grandfather's and his uncle's (Humberto's grandfather's) birth and presence in Arizona, obtained by a private investigator the Federal Defenders hired, proved that Miguel Gonzales Tiznado (Humberto's father) was born in Arizona in 1915. In doing so, the CIS relied on documents that should have been used by ICE to authenticate Esteban Tiznado's claims for U.S. citizenship through his father, Jesus Tiznado, the brother of Miguel Gonzales Tiznado. Had they followed the law, they would have heeded Esteban's plea to investigate further, rather than just throw him out, again.

Bad Faith at the CIS
During the initial questioning the prosecutor sought to establish that the CIS is a neutral party ("[Prosecutor]: How would you describe your relationship with the applicant? Are you their adversary?

[Yslas]: No, sir.") and thus their 1989 assessment of the application should be taken at face value. During the closing statement the prosecutor references statements by the CIS in 1989 claiming Jesus Tiznado was born in Mexico and says, "I can't imagine that the citizenship office would just manufacture that. I mean, that doesn't make any sense. Why would
they do that?"

Why indeed? Why did Jaime Yslas invent claims about the U.S. policy on dual citizenship to reflect poorly on Esteban, even while asserting no adversarial relationship between them? Why did CIS take 8 years before reviewing Esteban's N-600? Why did Yslas imply that one could effectively appeal a denial of an N-600 application without an attorney?

These are not hypothetical questions but part of the sad record of ethnic cleansing by the CIS. That someone with an Hispanic name is part of this should come as no surprise. The deportation machine would shut down without their participation. (Anyone who has spent a little time in an immigration jail knows that much of the daily business is conducted in Spanish, so much so that non-Spanish-speaking, English-speaking immigrants object to not being able to follow what is being said to them while in ICE custody.)

The fact that the immigration attorney is receiving calls daily from people who have viable U.S. citizenship claims CIS denied but that would appear to prevail on appeal, yet who lack the means to proceed, especially in light of Humberto Tiznado's effective appeal obtained through such services, is a matter of great importance to the civil rights of thousands and even tens of thousands of U.S. citizens.

In overruling a defense motion for a dismissal, District Court Judge Frank Zapata explained the central factual question on which the 12 members of the jury would decide.

The jury reviewed the CIS documents and decided Esteban was a U.S. citizen.

Instead of the prosecutor's hypothetical question, the real question is, Why assume that the mishandling of Jesus Diego Tiznado's application for his children's citizenship certificates is an isolated case? The refusal to recognize the U.S. citizenship for applicants born in Mexico deserves close scrutiny by the DHS Office of the Inspector General.

Speaking of Lawsuits Filed by U.S. Citizens Falsely Imprisoned by ICE......

Exerpt from November 14, 2011 U.S. Judge Magistrate's advisory decision denying most of the government's Motions to Dismiss Mark Lyttle's lawsuit

In response to the post last week about the government's false imprisonment and kidnapping of Esteban Tiznado, a reader posted a comment suggesting lawsuits are in order. Indeed.

Thankfully, people are filing these, and a recent judge magistrate's advisory decision out of North Carolina provides encouragement.

------------------

ANTHONY CLARKE'S LAWSUIT

As reported by Paul McEnroe in the Star-Tribune, Immigration and Customs Enforcement agents and attorneys shuttled Anthony Clarke among various immigration jails for 43 days, even though they had clear evidence of his U.S. citizenship.

The lawsuit filed on his behalf by Angela Bortel begins:

Plaintiff Anthony A. Clarke is a citizen of the United States. Notwithstanding that objectively verifiable fact, officer[s] of the United States Immigration and Customs Enforcement ("ICE") directed the unlawful arrest and detention of plaintiff in immigration custody...

The individuals named as decision-makers in Clarke's arrest and imprisonment are Special Agent Ulrich Palmer Denig, Special Agent Brenner Jennifer Skwira, and ICE Chief Counsel Barry Chait, Deputy Chief Counsel Ann M. Tanke, Assistant Chief Counsel Daniel Pornschloegl, and Assistant Chief Counsel Daniel Hetfield.

UPDATE ON MARK LYTTLE'S LAWSUIT

In October, 2010, Mark Lyttle, represented by Troutman and Sanders and the ACLU, filed lawsuits in North Carolina and Georgia.

On November 14, 2011, a judge magistrate in North Carolina issued the first substantive ruling, albeit advisory, on the merits of Lyttle's case. The governments motions to dismiss were largely DENIED and, if the federal judge responsible for the final ruling on this matter follows the advisory ruling, Mr. Lyttle should have his day in court.

In a 30-page advisory opinion, U.S. Magistrate Judge William Webb writes in response to the government's Motion to Dismiss due to the discretionary character of duties assigned to those responsible for deporting criminal aliens: "[T]his analysis ignores one crucial fact: these statutes give immigration officials the authority to detain 'aliens', and Plaintiff is not an alien."

Meanwhile, Esteban Tiznado, following ICE agents refusing his plea for an immigration hearing to present evidence of his U.S. citizenship, is penniless, homeless, and desperate in Mexico. Is it really the right policy choice for the government to deport anyone agents unfettered by public or agency scrutiny decides to deport and then dip into taxpayer funds to pay-out the few fortunate enough to make it back and find gutsy lawyers willing to take on a major bureaucracy happy to spend our money to defend its lawbreaking? When is the Department of Justice going to step up to the plate and start charging these agents and attorneys with false imprisonment and kidnapping?

ICE Ignores Esteban Tiznado-Reyna's Evidence of Citizenship, Deports Him, Again, to Mexico

Esteban Tiznado, captured and photographed by Border Patrol in Arizona desert after U.S. government ignores his evidence of U.S. citizenship, taken shortly after midnight, February 23, 2011

In next year's Statistical Yearbook and press releases, Esteban Tiznado-Reynes' deportation Tuesday morning from the Florence Service Processing Center to Mexico will be used to show Immigration and Custom Enforcement's (ICE) efficacy in ridding the country of "criminal aliens." But the truth is that in his case and thousands of others, ICE is disregarding the rules for handling probative evidence of U.S. citizenship,and unlawfully deporting people.

Ignoring information from a local non-profit about a 2008 trial in which a jury believed Tiznado's evidence of U.S. citizenship and thus found him "not guilty" of "Illegal Reentry" (a charge predicated on alienage), ICE agents Monday refused to heed Tiznado's plea to appear in an immigration court and simply dumped him Mexico. (On Monday Tiznado placed numerous panicked calls about once again being effectively kidnapped and taken from his country.)

When Jesus Tiznado, Esteban's father, was born the Tiznado family lived where they had for the last 10,000 years, according to Esteban's court-appointed attorney, Jesse Smith, "They were part of the Tohono O O’dham tribe, one of the oldest tribes continuing in one place. Their tribe goes from Tucson east, halfway to San Diego." He continued, "[Esteban's] dad was born in 1922 in a little town called Tapowa, north of the border. The tribe didn't have a hospital. Everyone was born at home." Esteban was born in 1974 in Mexico to a Mexican mother. "The dad had the family down there because it was cheaper," Smith explained. Esteban was the last of ten kids and in 1977, when he was three, the "father brought the whole family up to Tucson."

In 1979 the father applied and had approved a delayed birth certificate for himself certified by the Arizona Office of Vital Records. It references receipt of Jesus Tiznado's October 10, 1924 Certificate of Baptism, an October 29, 1928 record of his elementary school enrollment at age six in Arizona's Gilbert Public Schools, reference to Jesus's U.S. birth on his daughter's 1958 Mexican birth certificate, and the 1977 affidavit of a family friend.

In 1989 the Citizenship and Immigration Services denied Jesus Tiznado his request for Certificates of Citizenship for his children, the only explanation being that Tiznado had submitted a delayed birth certificate, without any evidence that would suggest it had been obtained fraudulently or was defective in any other way. Smith says, "What's really offensive here is that some immigration agent who's been here less than 500 years kicking out someone who's been here 10,000 years. That's kinda nervy." Finances prevented an appeal, Smith explains, "It would have cost them $100 per kid. [The government] said no and that was that. No one was getting kicked out at the time," and the family let the matter drop.

In the 1990s Congress decided to demonize criminal aliens and Esteban, convicted of possessing 20 lbs of marijuana, was on their radar. When he was released in 2000 following his prison time for this and an attempted car theft charge, he was deported to Mexico. He was caught trying to return -- what's this guy going to do in Mexico with no family, no friends, no place to live? -- and charged with Illegal Reentry. His court-appointed defender, concerned about the previous convictions upping the sentencing for this -- encouraged him to plead guilty rather than assert his U.S. citizenship. Esteban served a 51 month prison sentence for a crime for which U.S. citizenship is conclusive evidence of innocence.

After serving his sentence he again was deported and again returned, and again was caught and again charged with Illegal Reentry in 2006. This time, though, he had a good lawyer. Jesse Smith, a Tuccon criminal attorney, organized the testimony of an expert witness, family members, and produced documentary evidence of Jesus Tiznado's U.S. citizenship as well has his having met the residency criteria for automatically conveying U.S. citizenship to his Mexican-born children. The only defense against the Illegal Reentry charge was Esteban's U.S. citizenship and jury notes to the judge show this was the issue on which they were focused.

On April 24, 2008 they unanimously voted Not Guilty. On April 30, 2008 Smith moved on grounds of Double Jeopardy to dismiss a remaining order for his arrest -- the government was claiming that, although he was not convicted, the "Illegal Reentry" charge violated the conditions of his 2006 parole -- and prevailed. Tiznado was free, or so it might seem.

After the trial, "ICE picks him up and says fuck you, as far as we're concerned you're not a citizen." In May, 2008 they deported him again. "There's an opinion from the Ninth Circuit that says they can't prosecute him, it's Double Jeopardy. The don't prosecute him, but they keep kicking him out."

And Tiznado, who does not belong in Mexico, keeps returning home. But it's becoming more and more dangerous, and expensive, and even deadly. "It used to be very easy to walk back in illegally. I don't know how many times they've kicked him out and he would come back in, but they've really expanded all these check points. And because of the war against drugs in Mexico, some of the cartels have taken over the alien smuggling. You can't come in on your own anymore, they'll kill you."

For his most recent return in February, 2011, his mom and his sisters sent him $1,000 to pay a coyote. After two days of walking, and 50 miles in from the border the coyote shows the four guys who've paid him some burlap sacks of marijuana dropped off by pick-up trucks to evade the highway checks, and orders them to put them on their backs. Border Patrol caught them and they were arrested and Esteban initially charged with Illegal Reentry and Possession With Intent to Distribute Marijuana. Smith demonstrated Esteban's innocence through physical evidence (the absence of any burlap fibers on Esteban), medical records (recent and past hospitalization operations), a scar from surgery, and the testimony of someone else in the group ("This guy wasn't carrying anything because of his back injury"). It was a bench trial. By then the prosecution had dropped the Illegal Reentry charge because of Double Jeopardy, and on November 22, 2011 Judge Cindy Jorgenson found Esteban Not Guilty on the drug charge.

Nonetheless, a week ago Tuesday, as the country was preparing to celebrate the destruction of the towns and peoples who lived here before invaders inspired by the pursuit of Paradise and Amazons wiped them out, Esteban remained in government custody, estranged from his family, including his mother, Julia, who is presently hospitalized.

The legal picture here appears murky because of the dead zone between the government not meeting its burden of proof of his alienage and Tiznado seeming not to meet his burden of proof, because he is foreign born, of U.S. citizenship.

The scenario in which Tiznado and many others find themselves is liminal and thus provocative of all sorts of fascinating questions about the vagueries of borders, nationalities, and immigration charges that mix civil and criminal adjudications. But by no means does this absolve the government of the charge of false imprisonment and kidnapping.

Here's why:

1) On November 19, 2009 John Morton issued an order to ICE agents and attorneys stating that "because of complexity of citizenship and nationality law, many [cases] may require additional investigation and substantial legal analysis. As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain an USC [United States Citizen]." The memorandum also states: "In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention." Esteban was telling ICE agents at Florence that he'd won a trial based on new documents and expert statements about his U.S. citizenship. Why didn't someone look this up?

2) On Monday, a local nonprofit attorney called ICE at Florence SPC and asked them to hold off on Esteban’s deportation until further investigation could be done on his citizenship claim. In other words, ICE knew about Esteban's claims and he was not simply lost in the cracks of the vast deportation machine. A deportation officer at Florence SPC told her that a previous analysis of his U.S. citizenship claim would stand in the absence of any new evidence to the contrary and he would be deported that evening.

3) Tiznado has a cousin, Humberto, now in Utah, who was in a similar situation in San Diego during the same time frame. Humberto was represented by ex- San Diego Federal Defender, Sara Peloquin. Humberto also had been originally denied his Certificate of Citizenship but then appealed and prevailed. She writes, "In spite of a letter [to ICE] from the AUSA [Assistant U.S. Attorney] indicating there was a strong likelihood that my client was a citizen, they [ICE] deported him." (Thanks to some incredible work by Sara, Humberto is now back in Utah and I will describe his experiences later.)

4) The “Reinstatement of Removal Order” authorized by CFR § 241.8 states: “The immigration officer shall attempt to verify an alien's claim, if any, that he or she was lawfully admitted…” U.S. citizens cannot be found to have violated rules for lawful entry. The immigration agents’ failure to investigate the evidence of Esteban’s U.S. citizenship violates the regulation and thus, absent legal authority for his imprisonment and removal, renders these actions false imprisonment and kidnapping.

It's tempting to dismiss this case because of Esteban's convictions. Esteban's no choir boy, but he never held someone captive for 51 months.

On Tuesday the local attorney spent the day poring through the 2008 trial transcripts, tracking for the benefit of Florence SPC deportation officers the evidence of Esteban's U.S. citizenship that had proved so convincing for the 12 Arizona jurors. For naught. Esteban had been deported on Tuesday morning, and his whereabouts are currently unknown. ICE has stated that they will conduct a new analysis of his claim to citizenship, but even if they correctly conclude he is a citizen, there is no way to let Esteban know of their decision.

UPDATE DECEMBER 2: Yesterday Esteban called his attorney from Caborca, Mexico.

UPDATE DECEMBER 3, 1: 30 pm: I just spoke with Estevan. He is in Caborca because another person on the bus from Florence SPC to Mexicali on Tuesday is from there and said he could spend two nights with him. He's worn out his welcome sleeping on Manuel's floor and has no money and no idea where he will go in the next few hours. His mother is elderly and sick and his siblings are scrambling to make ends meet for their own families, "especially because Christmas is coming," Estevan told me, and therefore are unable to help him out.

To read more, see "U.S. Government Unlawfully Deporting U.S. Citizens as Aliens," Virginia Journal of Social Policy and the Law, 2011, 115 p.

U.S. Citizen Sues ICE for False Imprisonment in Minnesota

An article in the Star-Tribune by Paul McEnroe reveals yet another U.S. citizen who was falsely imprisoned.

A Minneapolis man was arrested and illegally detained for 43 days by federal immigration agents who sought to have him deported even though he is a U.S. citizen, according to a lawsuit filed recently in federal court in Minneapolis.

Mr. McEnroe didn't tell me the details of the case he was following during our interview, but now that the story is published it appears that the fact-pattern that led to Anthony Clarke's unlawful incarceration is typical of the ones I tracked among the 2006-08 files of the Florence Project, the country's largest federally-funded legal orientation program for people in immigration jails: the person targeted for deportation has a marijuana conviction and is foreign-born.

Millions of U.S. citizens are foreign-born and acquire or derive U.S. citizenship by operation of law, e.g., Sen. John McCain. Immigration and Customs Enforcement (ICE) targets those who are foreign-born and have some run-in with the criminal database, yielding the arrest of criminal aliens and criminal U.S. citizens alike.

ICE agents are indifferent to civil rights, leading to the arrest of a U.S. citizen occurring in about one percent of all ICE arrests, meaning about 4,000 cases last year alone.

You may download "U.S. Citizens Unlawfully Detained and Deported as Aliens" published in the Virginia Journal of Social Policy and the Law here.

Photo of Anthony Clarke from the Star-Tribune.

USCIS Official Rebuffs Morton Memorandum on Detaining U.S. Citizens

"Santa Fe Man One of Thousands of Legal Citizens Rounded Up by ICE," is the latest headline announcing the persistence of the Department of Homeland Security's (DHS) kidnapping and false imprisonment of U.S. citizens.

In a case reported by Sandra Baltazar Martinez in the Santa Fe New Mexican on November 20, 2011, Emilio René Pincheira Dennett, a naturalized U.S. citizen, was held by Immigration and Custom Enforcement's (ICE). From the moment he was arrested by agents barging into his house, he asserted his U.S. citizenship, and provided information sufficient for ICE to have not only checked out his claims but also to release him, per the official and demonstrably ignored ICE policy on handling those who assert U.S. citizenship.

John Morton's November 19, 2009 memorandum to ICE agents states that as a "matter of law, ICE has no jurisdiction over U.S. citizens" and that "Agents and officers must fully investigate the merits of any claim to citizenship made by an individual who is subject to an NTA [Notice to Appear in an immigration court]." Information about naturalization would have been maintained in DHS databases easily accessible to ICE agents and attorneys, who appear not to have followed up on this. As well, the Morton memorandum states: "In all case, any uncertainty of whether the evidence is probative of U.S. citizenship should weigh against detention."

In a textbook case of DHS misstating its responsibilities and failing to hold its agents accountable for this egregious civil rights violation, Tim Counts of the U.S. Citizenship and Immigration Services, is reported to have told Martinez that "the burden of proof falls on the individual detained to produce documentation." This is an accurate statement of the burden of proof for an individual who is not born in the United States to prevail during deportation proceedings in an immigration court, but it is an erroneous statement of the legal burden of proof for "an individual detained."

To be clear, Counts is from USCIS and not ICE, but if he is going to state the policy of another agency, then he might want to make sure that he gets it right. Circulating a statement at odds with efforts to deter the detention of U.S. citizens reveals a lot about the mindset of DHS officials: absent specific knowledge they impute illegal authority to their agents.

The ICE response? "No system is perfect," according to Leticia Zamarripa, the ICE spokesperson quoted by Martinez.

For research on the large-scale of these imperfections, the government's euphemism for kidnappings and false imprisonment, see "U.S. Government Unlawfully Detaining and Deporting U.S. Citizens," published in the Virginia Journal of Social Policy and the Law (click on upper left "One Click Download) and cited by Martinez, along with statements from Ted Robbins' NPR story, "In the Rush to Deport: Expelling U.S. Citizens," which aired on October 24, 2011 . (Yeah, I know: "Expelling"?! Robbins' story is terrific and I'm blaming a clueless NPR editor for equating losing one's home, community, job, house, and everything else with being sent home from school.)

Release of Journal Article on Unlawful Detention and Deportation of U.S. Citizens as Aliens

My article "U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens" appearing in the most recent issue of the Virginia Journal of Law and Social Policy (18.3) is available for downloading as a pdf on the Social Science Research Network.

(Click on "One-click Download" just above the title. Also, the journal is behind in its publication schedule; its "Spring 2011" issue in which my article appears is only recently available as a hard copy and not yet online.)

The article reflects several years of research on how the lapses in deportation law and its practice are so extreme that those over whom the Department of Homeland Security has no legal jurisdiction are being held against their will and removed from their country. If any one else were doing this, the Department of Justice would go after them for false imprisonment and kidnapping, and yet the only restraint on these practices so far has been Congressional oversight hearings in which ICE officials claimed these events did not happen, and a number of lawsuits in which the government has paid out significant amounts in damages, including a February, 2011 $400,000 settlement and revised rules following a complaint by a client of the Northwest Immigrant Rights Project. However, the only one suffering from these actions are U.S. taxpayers.

For instance, according to ICE spokesperson Barbara Gonzalez, despite the fact that ICE agents submitted an arrest report with inaccurate information and in December, 2008 deported to Mexico Mark Lyttle, born in North Carolina and with no Mexican relatives or knowledge of Spanish, no one was investigated or punished for this, or for the coverup of these events written by ICE agents in Atlanta for internal circulation following Mr. Lyttle's return and additional efforts to deport him on an expedited basis, despite his recently issue U.S. passport obtained from a consular office in Guatemala City.

As those familiar with this blog know, I have written extensively about Mr. Lyttle's case; the journal article includes numerous other previously unpublished profiles of U.S. citizens unlawfully incarcerated and deported by the DHS. The pros at the Northwestern University Public Affairs Office released this statement today and did fine work summarizing the 115 page article:

NORTHWESTERN UNIVERSITY NEWS

MEDIA CONTACT: Hilary Hurd Anyaso at (847) 491-4887 or h-anyaso@northwestern.edu

FOR RELEASE: October 6, 2011

ILLEGAL DEPORTATION OF U.S. CITIZENS

Study finds U.S. government unlawfully incarcerating, deporting citizens as aliens

EVANSTON, Ill. --- Thousands of U.S. citizens across the country are being held in prison until they can prove their U.S. citizenship, even though the U.S. Department of Homeland Security (DHS) lacks authority to hold U.S. citizens, according to a report in the latest issue of the Virginia Journal of Social Policy and the Law, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1931703/.

Jacqueline Stevens, professor of political science at Northwestern University and an expert on the practices of the Immigration and Customs Enforcement (ICE), reports on several previously unpublished cases in the journal. Mario Guerrero, a California truck driver, was deported and then, on his return, charged with False Personation of a U.S. Citizen. He was incarcerated for seven years for immigration violations, even though he acquired U.S. citizenship at birth from his father, also a U.S. citizen, a fact the government finally recognized in 2007.

In another case, a man born in Lawrence, Mass., was deported to the Dominican Republic when he was 19. It took “William” more than a decade before his U.S. citizenship was recognized in 2009.

“Some of these U.S. citizens found the Immigration and Customs Enforcement custody so physically and emotionally debilitating that they capitulated to ICE officers who pressured them to sign statements falsely conceding their lack of U.S. citizenship,” Stevens said. “They preferred deportation to ICE confinement.”

Stevens’ research on southern Arizona records found 82 people locked up in immigration jails between 2006 and 2008 whose deportation orders were terminated by Department of Justice (DOJ) adjudicators because of U.S. citizenship. She found that most were held for more than one month and five were held for more than one year. Because of the size of the study and the findings’ consistency with other studies, Stevens concludes that among the approximately 400,000 people held this year by ICE, 4,000 will be U.S. citizens.

To ascertain the rate at which U.S. citizens are in ICE custody, Stevens reviewed data from more than 8,000 files maintained by the country's largest federally funded legal orientation program for 2006 to 2008. She also examined 2010 email traffic on assertions of U.S. citizenship by those in ICE custody from November 2009 to March 2010 obtained under the Freedom of Information Act, interviews with immigration attorneys and immigration judges and a report by a New York City Bar Association.

The plurality of U.S. citizens held in southern Arizona whose civil and constitutional rights ICE violated were young men of Mexican descent who had recently completed criminal sentences in California for marijuana possession. Some, despite acquiring citizenship at birth, were issued green cards on entering the country and deported following minor convictions as teenagers, unlike U.S. citizens of European descent with similar histories. Others agreed to deportation in lieu of appeals, preferring life in Mexico to an indefinite lockup in unregulated ICE facilities.

Stevens attributes these incidents to DHS and DOJ racial profiling and coverups of their agencies’ misconduct, including preventing those incarcerated from meeting with the media and other visitors, and limiting access to immigration hearings in detention centers, thus hiding from public scrutiny agents' perjured statements and abuse of those in their custody.

In the journal article “U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens,” Stevens’ key recommendation is to provide those in immigration jail custody the same legal protections as those serving prison sentences, including a regulated facility and an ICE-funded attorney if the respondent cannot afford one.

(Source contact: Jacqueline Stevens, jacqueline-stevens@northwestern.edu, 847-467-2093)

NORTHWESTERN NEWS: www.northwestern.edu/newscenter/

Andres Robles Released! DHS Misrepresents Date Notified of Citizenship

Andres Robles derived U.S. citizenship in 2002, was unlawfully deported in 2008, returned to the U.S. last week, and the next day was arrested for missing probation hearings following his deportation, then told of an active deportation order.

For more background, read here.

Andres Robles, 22, was released yesterday evening from the Lafourche Parish jail without explanation, "They just pulled me out and told me I was getting released," he told me today from his parents' home in Thibodeux, Louisiana. He was really happy to be back in his old bedroom, where he would have been living the last few years if DHS had not unlawfully deported him in 2008, ignoring the fact that he had derived U.S. citizenship from his father in 2002.

According to Andres, when his sister Maria, 26, saw him being cuffed in the court clerk's waiting room on August 24 while they were waiting to clear up the warrant for him missing probation meetings while out of the country, she pleaded with the judge to order him released, but Judge Larose ignored her last week, and he also never let Andres speak to him when he was arraigned on Monday, August 29, "The DA just said the charges and that was it. They didn't let me talk or anything. They just said, go to the box."

Andres explained that on Wednesday, August 24, the day after he returned from Mexico, while he was being marched out in hand cuffs, he heard his sister tell the district attorneys what was going on, that Andres' warrant for missing his probation hearings was because of a wrongful deportation orders. Someone assured her they would explain this to the judge when Andres was arraigned. But this never happened. "It was the same people. My sister told one of the DAs and they didn't say anything."

No one at the jail told Andres why he was let out, but Maria knows why. I spoke with someone in the parole office yesterday who figured out the jail's error, and Maria spent most of yesterday calling the probation office and the jail and forced them to fix the problem the jail caused when it failed to record that in 2008, after Andres, then 19, served a prison sentence, the jail released him to ICE and not to his home. This is a common problem across the country.

The probation officer told me that their policy is to record when inmates are picked up by ICE. No one at the Lafourche jail did this and thus there was no record that his failure to appear was because of their own poor judgment in turning a U.S. citizen over to ICE and not because Andres was ignoring the conditions of his parole. There is no doubt that if Maria hadn't been calling the jail, Andres would be there tonight as well.

Meanwhile, following attorney Larry Fabacher's persistent entreaties and reporting posted on the Bender's Immigration Bulletin on the agency's failure to file a motions to terminate his removal proceedings and vacate the removal order, Craig Harlow, DHS Deputy Chief Counsel at Oakdale on August 31, 2011 finally filed a Motion to Reopen and Motion to Dismiss Removal Proceedings. The motion states that "It has come to the attention of the undersigned that the respondent was recently issued a United States Citizenship Card by the U.S. Department of State." The motion fails to state the true date at which DHS learned of Andres' US citizenship (June 15) or the date at which it learned of his U.S. citizenship card; nor does it state that Andres derived U.S. citizenship in 2002 and that this, not the date of his certificate of citizenship, is the legally relevant information; a certificate of citizenship is not a legal requirement for proving derived U.S. citizenship.

The DHS filing also does not move to vacate and rescind the previous deportation order, as was done by DHS attorneys following Mark Lyttle's wrongful deportation order. (My understanding is that this is necessary to clear this matter from the EOIR database, which otherwise will represent his status as a deported criminal alien and could continue to cause problems for Andres down the road.)