Monday, April 24, 2017

Federal Court Rejects Prison Firm Akima Global Services Intervenor Motion, Orders ICE Contracts Released

Last week Federal Judge Harry Leinenweber of the Northern District of Illinois smacked down a private prison firm's effort to block Immigration and Customs Enforcement from releasing documents that Akima Global Services, LLC claimed contained proprietary information. The order of April 19, 2017 is part of ongoing litigation to procure information about how the private prison firms profit from the unlawful exploitation of those in their custody under deportation laws.

The passage most meaningful to me was the judge's response to Akima's invocation of deference ICE has shown to its previous redaction requests: 
AGS’s next argument is that ICE, by failing to exempt the Krome Contract, was changing its position that the Krome contract was exempt, and an agency must supply a “reasoned analysis” for such a new policy, citing Abraham Lincoln Memorial Hospital v. Sebelius, 698 F.3d 536, 555 (7th Cir. 2012). However, as ICE pointed out, the previous “decision” was not a formal decision of the agency itself but was an informal ruling made by an employee. Apparently there was no objection to the redaction made by the requester so no formal agency review was undertaken. Such an informal decision made by an employee would not be authoritative, unlike the decision at issue here, which resulted from a full agency review. (pp. 12-13)

Such a finding supports the importance of "forensic intelligence," that is, the largely untapped possibilities for scholarship that thwarts injustice by eliciting information the government does not release unless the public objects to the deference given corporate elites and agency cronies.

from Miami News Time investigative article

Akima runs a large facility in Miami, where the local media have highlighted ongoing abuse. Documents for the Krome facility I downloaded from a FedBizOpps website for the 2012 bid - reproduced in the appendix to this law review article  - reveal that Akima's kitchen operation is staffed by 30 people in its custody it pays one dollar per day and just six people employed from outside the facility. This violates a number of federal laws on labor and government contracts. Like similar facilities with ICE contracts, Akima fulfills virtually all its obligations to the government, save those of actual guard duties, by forcing those in its custody to work for slaving wages or no pay at all.

In the 29 months since Andrew Free, the brilliant civil rights attorney who represents me in FOIA litigation, filed the complaint, ICE has released thousands of pages of documents that I have discussed in my scholarship and on which journalists have reported, including the death by electrocution of Cesar Gonzalez after his jackhammer struck a powerline and sent 10,000 volts of direct current through his body. That said, we continue to battle to force ICE to remove the hundreds if not thousands of unjustified redactions, and to release dozens of documents still withheld in their entirety. (To support this work, please go here, or send funds directly to Attorney Free.)

Mother Jones and the Washington Post have covered the successful class action litigation underway against the GEO Corporation in Aurora, Colorado. For the orders in the Menocal lawsuit and the primary source documents obtained in our litigation, , please go here.

Monday, April 3, 2017

Tenth Circuit Orders Immigrant in Turlock, California Deported in Absentia, No Proof of Service

First Inn of Colorado, where ICE in 2007 sent Notice of Detainer for U.S. Citizen Peter Guzman, who was in the custody of the Los Angeles County Jail and had never been to the inn 

I was just browsing through recent Tenth Circuit opinions this morning and bumped into an order of March 30, 2017 deporting a Mr. Prabhjot Singh because he could not meet his burden of proving that the Executive Office of Immigration Review (EOIR) did not through regular mail send him a notice of his hearing.

For most people reading this, the order seems innocuous enough.  A guy from India is apprehended in March, 2014 in Arizona by a border patrol agent for entering illegally, blows off his notice to appear in immigration court, and then claims he never received it.  But a closer review raises questions not just about his case but the larger due process problems of relying on self-serving boilerplate statements of protocol by EOIR staff for deporting people whose affidavits offer evidence to the contrary.

Singh was first detained in Arizona and then transferred to Utah, where, 15 days after his apprehension, he was released on a  $7,500 bond after giving the Department of Homeland Security (DHS) a new address in Turlock, California.  On August 7, 2014, Singh is deported by an unnamed Salt Lake City immigration judge in absentia.  The Board of Immigration Appeals denies his October appeal to reopen the case, including his sworn affidavit stating he never received the Notice to Appear.

The Tenth Circuit affirms:
The alien bears the “burden of demonstrating the claimed lack of notice.” Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004)“The burden is not alight one.” Id. “Evidence that the notice of hearing was mailed to the alien [at his most recent address] raises a presumption of receipt.” Thongphilack v. Gonzales, 506 F.3d 1207, 1209 (10th Cir. 2007); see also Gurung, 371 F.3d at 721-22 (“A notice to appear is sufficient, both for due process and statutory purposes, if it is sent by regular mail to an alien’s contact address of record”; “the alien must overcome the presumption of due receipt raised by the evidence of mailing”). “The alien must support his motion to reopen with affidavits or other evidentiary materials in order to overcome the presumption of receipt.” Thongphilack, 506 F.3d at 1210. Deliberate ignorance is most convenient and most difficult to disprove. The presumption is, therefore, most appropriate. 
In his affidavit, Singh admits he gave the government the Turlock, California, address upon his release from custody on March 25, 2014. He also admits he resided at that address upon his release. Nevertheless, in the same affidavit, he alleges he did not receive notice of the August 7, 2014 hearing. But, as the BIA aptly said, such self-serving, conclusory statements are insufficient. Thongphilack, 506 F.3d at 1210; see also Gurung, 371 F.3d at 722; Sajidi v. Holder, 438 F. App’x 693, 695 (10th Cir. 2011) (unpublished)
I'm posting this because a few details prompt some head-scratching.  First, someone in the DHS and possibly the IJ -- the order does not say if there was a bond hearing -- in Salt Lake City, Utah trusted Mr. Singh enough to release him on bond.  This was before the November, 2014 implementation of prosecutorial discretion.  And even with this, as a recently arriving alien, Singh would be in the second priority group targeted for removal. (The Tenth Circuit order does not review the substantive merits of Singh's claim to remain, but these facts are consistent with him passing a credible fear interview as part of an asylum claim.)  If he's credible enough for bond and DHS is at best not appealing, why is the judiciary essentially second-guessing the credibility findings of DHS and asserting Singh is not credible enough to believe about receiving mail?  (The fact that he is affirmatively trying to make his case in immigration court and not fleeing is itself evidence of his good faith testimony that the Tenth Circuit simply ignores.)

Second,  on March 25, 2014 the Department of Homeland Security (DHS) had a new address for Mr. Singh in Turlock, California.  Assuming he was pro se, why didn't the DHS, which granted bond, file a motion to change venue to California?  Even if the notice of the August 7 hearing were received, it would have required Mr. Singh to return to Utah.

Third, what crazy prejudice on the part of our judges allows the government to falsely imprison or kidnap people -- capture and send them away regardless of potentially legitimate asylum claims -- for no reason other than that the person about to lose her liberty cannot prove a negative, i.e., the absence of a piece of mail?  If proof of service is required for Colorado Small Claims courts for damages of up to $7,500, then how can the Tenth Circuit find any due process in deporting people without the government bothering to show the U.S. Post Office certified delivery?  (Indeed, this is the position of the Ninth Circuit, as characterized in a 2008 BIA decision published on this point.)

Fourth, Executive Office of Immigration Review (EOIR) administrators make all sorts of mistakes all the time, including with their own address (!), and the same for ICE, including not only deporting U.S. citizens but sending U.S citizen Peter Guzman's detainer to a Colorado inn in the Tenth Circuit, even though he was in the custody of the Los Angeles County Jail and had never been to Colorado.  If the government cannot afford to pay for Certified Mail to ensure Mr. Singh has his day in (fake) immigration court, it cannot afford to deport Mr. Singh.

Monday, March 20, 2017

ICE Data Released Today: ICE Almost Doubles Detainers Issued from Same Time in 2015

Only in America
VIDEO: While Trump is deporting people, US citizens are protecting them/us

A journalist asked today about how the arrests under Trump compared with Obama.  It turns out that today Immigration and Customs Enforcement (ICE) issued a report indicating that between January 28 and February 3, 2017 the agency had issued 3,083 detainers throughout the United States, which is about 45% of the 6,975 people for whom ICE issued detainers in the entire month of February, 2015, according to government data hosted by Syracuse University's TRAC.

(Detainers are typically sent by ICE to law enforcement agencies, usually jails or prisons.  The detainers may be for someone who was arrested and not convicted, someone who is set to be released immediately, or could be for someone serving a prison sentence, so that the LEA notifies ICE when the person is being released from that agency's custody.  In other words, ICE may not take immediate custody of those for whom the detainers are issued.)

If ICE numbers stay on track, the agency will have issued detainers for 12,332 people for the month of February, 2017, or 177% of the number detained during the same period in 2015.

Also of note: ICE says just 206 detainers were declined during the one week of January 28 - February 3, 2017.

CAUTION:  The government's data on detention and deportations suck.  I am reporting data the government has made publicly available, but only time and careful research will clarify if these data are in fact accurate.  TRAC includes similar caveats
in its reports as well.

Transactional Records Access Clearinghouse  

Greetings. Today Immigration and Customs Enforcement issued its first weekly report on detainers that it said had been refused by non-federal law enforcement agencies. Unfortunately, the information ICE released is very limited and selective.

At the same time ICE released its report, the agency has started withholding other more comprehensive detainer-by-detainer information that ICE previously released to the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to Freedom of Information Act (FOIA) requests. ICE does not claim the withheld information is exempt from disclosure, it simply claims past releases were discretionary and it is no longer willing to make many of these details available to the public.

Unfortunately, because of these ICE refusals, TRAC is unable to update its online free web query tool that allows the public to view all detainers as well as notices issued to each local law enforcement agency, month-by-month, during both the Bush and Obama Administrations, and then track what happened. TRAC's apps cover not simply whether a detainer was refused, but whether ICE actually took the person into custody. They also show how often deportation ultimately occurred following the use of a detainer. To view these TRAC online tools see:


In contrast, the limited information in ICE's new weekly report makes meaningful comparisons difficult. ICE's report does not provide any information on how many detainers the local law enforcement agency may have received in total, listing only those that ICE recorded as refused. The public also does not know, for example, how often ICE issued a detainer but then decided not to take the person into custody. Or having taken individuals into custody, found it did not have a legal basis to deport them.

ICE's report does not provide any information about the content of the detainer itself, or even whether the original detainer request met legal requirements that were outlined in the Department of Homeland Security's November 2014 memorandum regarding limits on its legal authority to issue detainers.

David Burnham and Susan B. Long, co-directors  
Transactional Records Access Clearinghouse  
Syracuse University  
Suite 360, Newhouse II  
Syracuse, NY 13244-2100  

Monday, February 27, 2017

Federal Judge Certifies Class of Detained Immigrants Suing GEO for Violating Trafficking Victims Protection Act and for Unjust Enrichment!

Judge John Kane Order of February 27, 2017, on case brought against GEO for exploiting the people it has locked up and making illegal super profits from their labor:

"I have not found and GEO has not provided any authority requiring that, for TVPA claims, causation must be proven by direct and not circumstantial evidence. Were a jury deciding the individual merits of Representatives claims, it surely would be permitted to make such an inference. Thus, it should
be allowed on a classwide basis as well. See CGC Holding Co., LLC, 773 F.3d at 1092."

Kane notes that precisely because Plaintiffs have few resources and are not native English speakers, class certification is appropriate.

The order in its entirety is here.

For previous complaints, please go here.

If the suit is successful, the private prison industry will be shut down for civil immigration cases--if GEO, CCA, and the other immigration prison profiteers had to pay prevailing wages for work performed, the profits would vanish and so would their incentive to lobby, i.e., bribe, Congress for mandatory detention and other laws that sustain their industry and hurt U.S. residents who lack, or appear to lack, legal status.

Congratulations to the plaintiffs and the legal team behind this!!
Brandt Milstein (Milstein Law Office), Andrew Turner (Buescher, Kelman & Perera, P.C.), Alexander Hood (Towards Justice),  Hans Meyer (Meyer Law Office, P.C.), and Andrew Free (Law Office of R. Andrew Free).

Background: Plaintiff attorneys read this article in the New York Times discussing research published as "One Dollar Per Day: The Slaving Wages of Immigration Jail, 1943 to Present," Georgetown Immigration Law Journal, which owes a lot to the FOIA litigation on my behalf by Andrew Free.  The attorneys investigated GEO's Aurora facility, identified plaintiffs, and sued GEO.  The Fair Labor Standards Act Minimum Wage claim was thrown out, but Plaintiffs will appeal; the TVPA (forced labor), and Unjust Enrichment (Colorado common law) claims are the ones for which Judge Kane certified the class.

Of course there is more legal work and research ahead.  The Deportation Research Clinic is soliciting donations to support our research on this and other government misconduct, including ongoing FOIA litigation over prison contracts.  At present the Clinic research is supported by student volunteer and paid research funded by a few thousand dollars/year from my discretionary account.  All contributions welcome! To donate, please contact kelby AT  The Clinic is a nonprofit and all donations are tax deductible. 

Friday, February 24, 2017

Back to the Future: Local Government Support for ICE before and after Trump, 287(g) and the Rest

“If you don’t have enough evidence to charge someone criminally but you think he’s illegal, we can make him disappear.” Those chilling words were spoken by James Pendergraph, then executive director of Immigration and Customs Enforcement’s (ICE) Office of State and Local Coordination, at a conference of police and sheriffs in August 2008. - From Jacqueline Stevens, "America's Secret ICE Castles," The Nation, January 4, 2010, quoting from Amnesty report "Jailed Without Justice."

See below for specific budget and operational details-Blogspot won't allow an anchor.

As the Trump administration rolls out its efforts to deport U.S. residents, with and without the legal right to be here - including U.S. citizens - it is worth reflecting on what is and is not consistent with Immigration and Customs Enforcement (ICE) efforts under the Bush administration and under Deporter in Chief, Barack Obama, whose administration was responsible for rolling out "Secure Communities," begun under the guidance of James Pendergraph.  

In short, the Trump administration is resuming where the Bush administration left off.  The only difference is that the Bush administration lied.  It paid lip service to civil liberties and respect for immigrant communities.  When he first took office and was aiming for "comprehensive immigration reform" Obama stuck with the same removal policies as his predecessor, hoping to find Republican partners to support the paths to citizenship and guest worker programs.  Once Obama's constituents convinced him that this was never happening, Obama changed course, but it was too little and too late.  

Trump's trumpeting of policies targeting for removal basically everyone who might seem a non-citizen is no more than sticking into Executive Orders the protocols and practices, if not policies, more quietly initiated by ICE and its predecessor Immigration and Naturalization Services (INS) during the Bush and Clinton administrations.

In fact, using local and state authorities to capture and deport U.S. residents go back to the 1980s.   (I say "U.S. residents" because the people who end up in the jails and prisons across the country tend to be people who have been in the United States for years and even decades.)  It came out of Governor Pete Wilson attempting to blame his budget failures on Latinos.  Wilson riled up the California Congressional delegation and there were hearings on the costs to states of incarcerating those without legal status.

Two outcomes were in federal legislation passed in the Clinton era: the State Criminal Alien Apprehension Program (SCAAP) and the "287(g)" programs that used "Memorandum of Understanding" (MOU) to authorize local sheriff staff to use arrest and jail records for those who were foreign born and then to fill out paperwork reporting them to the ICE predecessor agency "Immigration and Naturalization Service" (INS).   In the last couple years of the Bush administration, ICE hired James Pendergraph, the Sheriff from Mecklenburg County, North Carolina who was an early and vigorous 287(g) partner, and attempted to extend it nationwide by a program called Secure Communities.  (He's the guy quoted at the top of this post.)

Detaining and Deporting U.S. Citizens
SCAAP, which is behind the Institutional Hearing Programs (fast mass removal "hearings" via televideo for people who are locked up in prison and do not have attorneys) also is the main mechanism for the unlawful detention and deportation of U.S. citizens as aliens, as I reported years ago, in describing the role SCAAP played in the deportation of Mark Lyttle to Mexico, despite the fact that he was born in North Carolina, has no relatives in Mexico, had never been to Mexico, and speaks no Spanish. 

Budget and Operational Facts

1.  287(g)
The 2017 DHS budget states there are 32 287(g) agreements in place.  That means 32 counties out of more than 3100 counties nationwide have these. 99.9% of counties do NOT have these.  

From DHS, Congressional Budget Justification, FY2017, vol. II, p. 69.

The cost of this program is about $5,400,000 annually.  (See  Congressional Budget Justification, FY 2017, p. 14).  The MOU funding is ONLY for ICE operations.  The MOUs specifically exclude any payments to the local counties for their cooperation.  Counties not only have refused to implement 287(g) agreements, but have refused to honor ICE detainer requests because of civil liability concerns.  

The areas that support these programs are typically in the South or regions with economies linked to the prison industrial complex and are entering into these agreements despite and not because of financial incentives for the counties.

2.  Criminal Alien Program (CAP) 
These pay ICE agents to review data from jails and prisons participating in SCAAP, as well as to issue detainers and arrange for Notices to Appear and removal orders.  

For Larger Version of CAP FY 2016-2017 Budget, Click Here.
The budget for these operations is about $347 million annually, clearly dwarfing the expenditures on the 287(g) operations.  

This is how much the federal government pays states and counties that provide the reporting data on foreign born inmates.  The last I checked, all states and counties participate in this, but this was a few years ago and may have changed, though judging from San Francisco City and County participation in 2015, when they received about $170,000 for reporting their foreign-born inmates - including those arrested and not found guilty - probably not.

The annual expenditure on this in 2015, the most recent data reported on the DOJ website, was $167 million.

4. Secure Communities 
This was replaced by the Priorities Enforcement Program (PEP) in July, 2015. The difference seems to be that under PEP ICE is relying on FBI and other federal databases, rather than trying to use local databases.  The Obama administration's DHS points out that communities were resisting ICE efforts to acquire local law enforcement data under Secure Communities and tells us what to expect now that Trump is reverting to this:
Removals have decreased as an increasing number of jurisdictions have reduced or eliminated the transfer out of priority individuals to ICE custody. Jurisdictions have also started to limit or deny ICE access to their detention facilities. Because of detainer non-
compliance and not receiving notifications of releases, jurisdictions release criminals directly into society rather than transferring them into ICE custody in a controlled, safe, and secure manner. Without this cooperation, ERO officers must seek out these criminals in higher risk situations that take more time and manpower. The additional effort required reduces the total number of criminal aliens ERO is able to apprehend and ultimately remove.  DHS Congressional Budget Justification, FY 2017, vol. II, p. 68.
DHS Budget, FY 2017, showing communities declining ICE detainers, p. 68.
Under PEP, ICE communicates its enforcement interest to LEAs [law enforcement agencies] through a request for notification or a request for detention. ICE continues to refine its allocation of enforcement resources and build capabilities to initiate efficient and aggressive enforcement actions against priority aliens while they are in local custody. Since the establishment of PEP, more than 275 jurisdictions that had previously not honored ICE detainers have agreed to honor requests for notification or requests for detention. This has a direct impact on officer and public safety, as criminal aliens in these
jurisdictions will be apprehended by ICE officers within a controlled detention setting rather than released into the community where they would have an opportunity to re-offend.
The current website indicates that PEP information is archived and it appears to be history now that Secure Communities is being re-rolled out.  Here's a description of what to expect from when it was in effect and supposedly mandatory under the Obama administration.  

A 2012 ICE Budget Fact Sheet put the cost of Secure Communities in place then at $184 million.  

Tuesday, August 30, 2016

FOIA-ing the FOIA Manual! The Inside Scoop on USCIS and DHS Data Entry and Databases

From USCIS FOIA Search Training Manual

      A couple months ago, fed up with the randomness of Freedom of Information Act rote rejection letters from certain agencies--the State Department is the worst and USCIS had just lost a remand responsive to my appeal--I got off the phone with the USCIS employee and FOIA-d their FOIA manuals.  (UPDATE 9/3/2016-link fixed!)

     The response, uploaded here, is over 4200 pages.   

The information could be helpful for FOIA litigation (next up: other agencies) and also provides insights from actual agency examples that might be helpful with due process litigation.  I'm still scrolling through it... 

Saturday, June 18, 2016

"PBZ" (aka J. Dan Pelletier?) Reveals Atlanta IJs WERE Using Boilerplate [And Incorrect] IRS Analyses
From article on the Court of the Star Chamber.

Atlanta IJs coordinating their rulings. Headquarters meddling in individual case orders. Atlanta IJs misquoting tax law

Yesterday I bumped into an email from "PBZ"* to Assistant Chief Immigration Judge (ACIJ) Gary Smith.  It documents everything Atlanta practitioners knew but couldn't exactly prove: 1) The Atlanta IJs were coordinating their rulings; 2) EOIR headquarters is meddling in individual case orders; and 3) Atlanta IJs do not follow the law, and in fact cannot even quote it accurately.   And correspondence from PBZ indicates that Board decisions depend on the staff attorney who writes them, not the Board members.

This is from the AILA trove of IJ Misconduct Complaints obtained through FOIA litigation.  My Northwestern colleagues and I are moving from our quantitative to qualitative analyses of the complaints.  After reviewing the randomly selected complaints, I am now focusing on PBZ--distinguished for the number of complaints he drew.

PBZ is responding to ACIJ Smith passing on a complaint from the Board of Immigration Appeals (BIA).  The BIA remanded because PBZ relied on government claims about IRS filings to issue an order finding the respondent lacked good moral character, without holding a hearing.  Here's the email from the IJ EOIR coded as "PBZ," and whom I believe is J. Dan Pelletier:
To refresh your memory, 2 yrs ago, the IJ's in [redacted] had our legal clerk, [redacted] research this issue.  After he researched it and gave us his opinion, Judge [redacted] wrote a decision on this issue and forwarded it to you for your revue before issuing it.  (May have forwarded it through [redacted].)  All [redacted] of the IJs in [redacted] took this position at that time.  Each of us have received decisions from the Board upholding us on that finding.  Please note I cited both IRS publications and Board cases. 
Since there does not appear to be any reason for this referral, I cannot help but feel that this action may have been taken against me in retaliation for purusing an arbitration case against EOIR.   (Email from PBZ to Gary Smith, November 24, 2009)
These few lines, from Complaint 42, completely blows the cover for any pretense of judicial integrity or the judicial independence of immigration courts.  First, the IJs in Atlanta had together decided to use perceived IRS violations as grounds for categorically inferring poor moral character for all cases before them. Second, their decisions in individual cases are being vetted through an agency supervisor. And third, PBZ is just wrong about tax law!

PBZ alleges that the reason his decision of October, 2008 was referred to Smith was harassment and speculates as to "[w]hether [a transcription error] was deliberate misconduct on the Board's behalf" (Complaint 69, p. 20).

Immigration Courts are not Judicial
We now have proof that adjudicators are collectively and categorically deciding orders for all their cases that by law mandates the use of discretion for individual relief.  Furthermore, EOIR headquarters knows about this, facilitates this, and then lamely tries to cover this up.  PBZ is effectively calling Smith out on being disingenuous.  (To paraphrase, "Dude, WTF?  You KNEW we are doing this because you signed off on it!")

MaryBeth Keller, who then and now supervises the IJ misconduct complaint process, saw these emails and ignored them.

You think the district court judges meet to decide that any defendant whom the government alleges has committed tax fraud automatically will be found guilty of unrelated charges without a trial?  How about running a draft decision up the chain to see if an appellate court judge will like it?  In fact, this is even worse: the adjudicators are running their decisions by the people who write their performance evaluations and set their pay. 

Also, misconduct investigations for Article III judges typically are run by independent panels or commissions, for state and federal courts.  But EOIR misconduct investigations are triggered by Board members and overseen by the adjudicators' supervisors.  The actual process is identical with a review for any other bureaucracy trying to keep its field employees on track.  When PBZ asks Smith, "do these responses go to the Board?" (Complaint 255, p. 26) he is wondering about how his response as an employee to a supervisor is going to affect how they treat his orders--his earlier correspondence indicates his belief that if, as an employee, he antagonizes the Board, then they will retaliate by remanding his orders and this could affect his reputation if not his salary.

(Pay for real judges is uniform, but EOIR adjudicators are unionized civil servants and their salaries are tied to seniority and performance.)

In short, in a few words of Complaint 42, PBZ has provided the smoking gun proving what many of us had put together from a number of sources and encounters: the immigration courts that are run by government attorneys are fancy offices for bureaucrats who dress up in black.  When they meet and decide on a rule across all cases, they are making policy, not providing justice.  Some of the government attorneys at other offices are incredibly smart, thoughtful, and judicious, but too many others are like PBZ and the colleagues he describes in Atlanta.  (For another complaint against PBZ, Smith writes the wife of a detained respondent that PBZ's failure to comply with the Board remand for a bond was in Smith's discretion, and that it would be "inappropriate for me to intercede" in a matter before the immigration court (Complaint 161, p. 12).

IRS "Resident Alien" IS NOT the same as a "Legal Resident Alien" under Immigration Law
Finally, the decision rule on "resident aliens" PBZ is using is wrong.  The respondent in this case appears to be a Gambian woman who was applying for discretionary relief and met the requirements for physical presence and the absence of a criminal record.  She had filed for an Earned Income Tax Credit (EITC).  PBZ misquoted the IRS rule, and pretermitted her claim for relief on the grounds that the EITC is available only to U.S. citizens or legal residents.  In other words, PBZ incorrectly inferred the woman committed fraud, and used this to deny her claim for discretionary relief without a hearing.

The problem: PBZ spends so much time trying to deport people using immigration law that he is apparently blind too the actual text for other agencies.  PBZ, claiming to quote the IRS from 596 ch. 1, rule 4 writes: "'You must be a U.S. citizen or a lawful resident alien all year.'"  But the text itself says, "You must be a U.S. citizen or a resident alien all year."

The rule as quoted by PBZ:

Tax law uses a "Substantial Presence" definition of a resident alien that is not the one PBZ was using:
An alien individual is a resident alien if the individual meets the substantial presence test. An individual satisfies this test if he or she has been present in the United States on at least 183 days during a three year period that includes the current year. 
Further clarifying, in a different document, the IRS states:
Tax Credits. U.S. resident aliens generally claim tax credits and report tax payments, including withholding, using the same rules that apply to U.S. citizens. The following items are some of the credits you may be able to claim: child and dependent care credit, credit for the elderly and disabled, child tax credit, education credits, foreign tax credit, earned income credit, and adoption credit. For further information, see Form 1040 and its instructions.
(Just to be on the safe side, I found the IRS publication 596, Rule 4 on resident aliens for 2008 and the language is identical.)

Finally, PBZ confirms that staff attorneys are behind the Board orders: "[O]n several occasions the Board has upheld my findings of lack of GMC [good moral character] for failure to file taxes.  On other occasions they have found failure to file taxes insufficient to find lack of GMC.  As we discussed, it just depends on what member (or perhaps more accurately, which staff attorney) happens to handle the case" (Complaint 69, p. 20, April 2010).

The upshot: Smith is gone, and so is Grace Sease, another Atlanta adjudicator and former INS attorney. But Keller, Pelletier and of course William Cassidy still remain.  (My hunch is that he's the one who ran the draft IRS opinion by Smith.)  Cassidy also is the guy who deported U.S. citizen Mark Lyttle and whom I am suing because he ordered guards to throw me out of the lobby of the Atlanta immmigration courts and then lied about it.  When I filed my complaint about these events, of April 19, 2010, I also pointed out to Smith that Cassidy that morning had been categorically denying bond to respondents who had not submitted 10 years of IRS income tax forms.  Smith found Cassidy only made individualized determinations.  Too bad we didn't have this email when we were deposing him...
Federal District Court Judge Orinda Evans derailed the case, bestowing on Cassidy absolute judicial immunity.  My attorneys Bruce Brown and Ray Lerer are presently working on our appeal. 

*Narrative material from other complaints refers to PBZ as a former trial attorney in the same court where he was appointed an IJ.  J. Dan Pelletier is the only IJ under the supervision of Smith who meets that criterion and was appointed in the time frame indicated; plus the content of the complaints match up with everything others and I have observed about Pelletier first-hand.

Other snippets of note from PBZ:
PBZ response to BIA referral, Complaint 302:  
The Board remands, finding that PBZ mischaracterized the record and made inaccurate credibility findings about the Respondent's fear her daughters faced female genital mutiliation if they were to return to Mali, thus meeting the standard of "extreme hardship."  In responding to the complaint, PBZ writes that he and others are on a "target list": "This remand to another Judge is patently transparent.  I know for 'plausible deniability' you have to eschew any knowledge of a target list of Immigration Judges the Board is keeping an eye on and applying a different standard of review.  Each of these baseless referrals from the Chairman of the Board is further evidence of such a list.  I request each member of the Board be placed under oath before the OPR and asked whether any such list exists" (May 2010, p. 26)

Sunday, April 10, 2016

Ret. Lt. Gen. Karl Eikenberry Praises Rwandan Government and Military, Ignores Assassinations and Civil Rights Abuses

Karl Eikenberry, who may run Northwestern's Buffett Institute for Global Studies, center, January 29, 2015, source: Rwandan Ministry of Defence
Universities might have formed an effective counterweight to the military industrial complex by strengthening their emphasis on the traditional values of our democracy, but many of the leading universities have instead joined the monolith, adding greatly to its power and influence. 
-- Senator William Fulbright, 1967 speech introducing concept of the "military-industrial-academic" complex. 

 Northwestern University community reviewing appointment of Ret. Lt. Gen. Karl Eikenberry to lead Buffett Institute for Global Studies, new questions raised

(For background, please see Deanna Isaacs, Northwestern Wants to Hire a Former Afghan Commander, and Professors are Pissed, Chicago Reader, March 15, 2016.  For additional information, please see petition. For current status of debate, see Kelli Ngyun and Matthew Choi, "ASG, Faculty Senate Debate Eikenberry Appointment," Daily Northwestern, April 7, 2016.) 

 Believing that Karl Eikenberry's arrival in September will stay on track, despite intense faculty and student opposition, some faculty have come forward to endorse him.  With little direct information about his background, they have been relying on their private conversations with him over beer or other meetings, or have yielded to administration pressure as well as inaccurate statements about his time at Stanford and the search process, the position criteria, and the position responsibilities.

The information here is addressed to them, including the colleague who told me last week that unless evidence comes out that Eikenberry is a war criminal, the appointment likely will stay on track.  I disagreed, hoping that "not-a-war-criminal" is not the  standard for the keys to the Buffett Intitute's largest office.  More to the point, at the time he said this, my colleague was not aware that Eikenberry, while not shown to be a war criminal, is cheerfully in league with them.  These entanglements and possibly others --  Eikenberry and the NU administration will not release his c.v. -- cannot be erased, nor should they be ignored.

Eikenberry Goes to Rwanda
Last year, during and after a visit sponsored by the Rwandan Defense Force Command Command and Staff College, Eikenberry repeatedly and enthusiastically endorsed without qualification the brutal regime of President Paul Kagame.

In Eikenberry's own words:
What I’ve seen on [the] ground has far exceeded in terms of performance of this country I could imagine ... and [I] come here to find how this country and the people, the military has been able to rise from the ashes, sorry [sic] to speak, and see a vibrant society which is coherent, prosperous, and a sense of unity. I look at Rwanda serving as a very great example not only for this region of Africa, but actually globally.  (Ministry of Defence (MOD) emphasis added)
The trip encompassed several cities in Rwanda.  On February 2, 2015, Eikenberry met with Minister of Defence, James Kabarebe.  Kabarebe and Rwanda's President Paul Kagame are both named in a 2010 United Nations report as responsible for the genocide of Congolese and Rwandans.

Eikenberry shakes hands with Rwanda's Minister of Defence, James Kabarebe

A February 4, 2015 article covering the visit states:
[Eikenberry] further noted that he discussed with the Minister of Defence “the ways to institutionalise and legalise our military to military ties”, he said. He reiterated that deepening educational ties was investing in future relationship between people, faculty to faculty, soldier to soldier.  The Minister of Defence underlined that the military education was very promising both for Rwanda and the United States.

uncaptioned photo from MOD report on Eikenberry visit, Eikenberry on right

The MOD report notes that Eikenberry would "recommend to the United States to continue maintaining good relations with Rwanda diplomatically, politically, economically and militarily."

It appears as though Eikenberry was specific enough that the training benefits promised were a "package [that] is really quite helpful," according to Major Oyoo Peter.

At no point does Eikenberry indicate any interest in obtaining educational opportunities for Rwandan students who are not in the military.

What's Wrong With Rwanda's Government and Military?

This is a topic for a course or book.  Here's a quick summary of expert views on Rwanda, and below is a discussion of the relevance of this for the Northwestern appointment.

Congressional testimony by State Department Assistant Secretary Steven Feldstein in May, 2015, shortly after Eikenberry's glowing reports, reveals an entirely different story about Rwanda:
When it comes to the human rights situation in Rwanda, we see three trends of note. First, political space in Rwanda and the overall human rights environment continues to shrink. There are reports of targeted killings, and an increasing number of reports of disappearances and harassment of civil society groups and opposition parties. Second, this trend is reinforcing the wrong lessons for Rwanda– particularly that a country can continue to experience robust economic growth and foreign investment even while repressing its citizens further and reducing democratic space. This is not a sustainable path. At some point – if unchecked - human rights violations will begin to affect Rwanda’s economic performance, stability and the willingness of foreign investors to pump in outside capital and do business. Third, Rwanda’s human rights records is setting a disturbing precedent for the region and continent. Other countries are carefully watching Rwanda’s model of economic liberalization and political repression. In my discussions, counterparts frequently point to Rwanda and question whether protecting the rights of their citizens matters if they can achieve substantial economic development.
Either Eikenberry is clueless about Rwanda, thinks it's fine for autocrats to assassinate, disappear, and jail citizens who press too hard for accounability and democracy, or he is deliberately misrepresenting Rwanda's record and its lessons for the region (possibly for pay), or some combination of the above.

Here's how one journalist describes Rwanda's current president, who changed the Constitution to remain in office:
Filip Reyntjens, a Belgian scholar whom many consider the world’s foremost expert on Rwanda, describes Kagame as “probably the worst war criminal in office today.” In an interview, Reyntjens told me that Kagame’s crimes rank with those perpetrated by former Iraqi president Saddam Hussein or Sudanese leader Omar al-Bashir, who is wanted by the International Criminal Court on charges of genocide, war crimes, and crimes against humanity.  (Howard French, "Is Kagame a War Criminal?" Newsweek, Jan. 14, 2013)
A 2010 article discusses Kagame's role in more recent jailing and assassinations of dissidents:  "[W]henever Hutu politicians have started to gather power or criticise the government, it has usually meant their imprisonment, exile, disappearance or, in the case of Seth Sendashonga and a few others, unsolved assassination."

The 2015 World Press Freedom Index ranks Rwanda 161 out of 178 for press freedoms.

Of note is that Kagame was trained at the US Army Command and Staff College at Fort Leavenworth in 1989, clearly implicating the military training partnerships Eikenberry is cultivating today with the ongoing cycle of bloodshed in Africa and elsewhere. 

Since 2013, the same Rwandan army Eikenberry is defending has been jailing and killing dissidents, and flaunting the rule of law, according to Human Rights Watch: "The authorities detained people unlawfully in unofficial detention centers, including in military custody; some were held incommunicado and ill-treated."  Here are links to recent posts:

Rwanda Turns the Clock Back on Access to Justice, March 11, 2016

East Africa: Little Progress, Worsening Repression, January 27, 2016

Why Not Call This Place a Prison? Unlawful Detention and Ill Treatment in Rwanda's Gikondo Transit Center, September 24, 2015

Rwanda also has offered its services as a dumping ground for African refugees from elsewhere transferred there by Israel.  A 2015 report by the International Refugee Rights Initiative finds Israel forcing Eritrean and Sudanese asylum-seekers into Rwanda and Uganda, in violation of international law and United Nations mandates.

This list could go into much more detail about specific, recent assassinations to which Kagame's government has been linked, along the lines of Putin's Russia.  Do Northwestern faculty and students want their leader of global studies to be an apologist for perpetrators of genocide and assassinations?  If this information had come out earlier, would his appointment have gone this far?  What does this tell us about the search process and Henry Bienen's and the university's due diligence? 
Why Does this Matter for the Eikenberry Appointment? 
My hunch is that some of my colleagues, especially in political science will claim that Eikenberry is doing his best to work with a bad government to make it better.  That was my first thought when I heard about the visit.  But if one thinks of the photos taken and disseminated -- making Kabarebe and the military seem diplomatically palatable -- as well as the spin about Rwanda being an "exemplary" country, it starts to seem as though Rwanda has hired Eikenberry to improve its international reputation, obtain U.S. military training, and acquire weapons.

This recent and possibly ongoing work on behalf of the Rwandan military -- Eikenberry has not responded to questions about this -- with or without compensation, seems to completely rule out allowing Eikenberry to lead the Buffett Institute, especially in the context of Eikenberry's expertise on mililtary and civilian education as inducements for arms sales, discussed below.

Not only in Rwanda, but also when on return to Stanford, Eikenberry remained silent on abuses by the Rwandan government and military.  In a March 13, 2015 in-house interview with Stanford's Institute for International Studies, Eikenberry speaks only glowingly of Rwanda.  Why publish pro-Rwanda propaganda on a Stanford website and omit any reference to the military's unlawful violence? For instance, of the military officers whom he met:
They had an extraordinary grasp of the political, security, and development problems that their civilian leaders were attempting to solve. Most realized that without regional cooperation that the prospects of their own country prospering were quite limited. So I was impressed with how they viewed security as having both national and collective dimensions.
Of course other analysts, including the U.S. government, have understood Rwanda's interest in "regional cooperation" to mean selective organizing among militias to raid neighboring countries and silence critics.  Even if this is not what Eikenberry has in mind, failing to hold Rwanda accountable for any wrong-doing at any point in any of his statements, particularly those published under his control at Stanford, smacks of being on the Rwandan payroll, a possibility that a release of an accurate resume would either confirm or falsify.  Eikenberry and the NU administration continue not to release the c.v. on which they relied when hiring him.

Eikenberry also did not reply to a February query about his speaking engagements and fees. I am waiting for a reply to a late request for more details about his ties to the Rwandan government, thus far unanswered.  (Any responses from Eikenberry will be appended here.)

Up until now we've debated Eikenberry's use of soft power on behalf of the U.S., but here he's advancing soft power for Rwanda. 

If a health expert about to assume leadership of a medical institute were touting baseless claims about the health advantages of Coca Cola and refusing to release his resume or answer questions about employment by the beverage industry, Northwestern presumably would find this a deal-breaker.  Why cut a potential employee slack when he misleads people about a government causing death and not sugar?

In the context of Northwestern's control by large weapons and military equipment manufactuers (Boeing, General Dynamics, and Caterpillar) and Eikenberry's long-standing interest in U.S. arms sales, this is worrisome.   (The GD link is to a recent article about Northwestern trustee and GD CEO Phebe Novakovic, also a former CIA employee, speaking of the military-industrial-academic complex--Smith College students didn't even want her on campus for a visit, and yet she helps run Northwestern.)

Eikenberry Has Expertise in Foreign Military Sales
Putting someone with a keen interest in foreign weapons sales and the use of university educations to cement poses additional problems.

Eikenberry writes:

For instance, prospective foreign purchasers of United States equipment may be convinced not only by the quality of the particular hardware in question, but also by such factors as impressive and credible American security guarantees, access to much needed technology through offset agreements, and opportunities to study in advanced civil and military institutions.* [Emphasis added.] ....

* Offsets are defined as "compensatory, reciprocal trade agreements arranged as a condition of the export sale of military material and support services. They are, in effect, countertrade in the defense sector." See Grant T. Hammond, "The Role of Offsets in Arms Collaboration," ed. Ethan B. Kapstein, Global Arms Production: Policy Dilemmas for the 1990's (New York: University Press of America, 1992), p.205.

Source: Karl Eikenberry, "Explaining and Influencing Chinese Arms Transfers," McNair Paper 36, Institute for National Strategic Studies, February 1995.

Military Offsets -- with citations to be added 
Northwestern has been singled out as a recipient of student enrollments responsive to U.S. government or private firm side agreements since at least 1973, when Northwestern took students from Portugal in exchange for the U.S. receiving rights to use the Lajes airfield in the Azores, then occupied by the fascist Portuguese government.  (The State Department paid Northwestern to effect a secret US 1971 agreement with the Portuguese government. In the late 1970s, the funding was distributed through the same program, but disguised as Fulbrights.)

In more recent years the use of student scholarships for U.S. study to incentivize weapons sales has flourished.   Shortly after the U.S. invaded Iraq, the payments by private military firms for university, college, or professional schools admissions in exchange for foreign military sales was valued at over $100 million/year.

A Chicago-based consultant specializing in these transactions explained in a 1995 publication that many weapons sales match up on price and quality, leaving these side arrangements as enticements, including illegal but obscure and hard to punish bribes.  If a firm can promise a country rep that his child has a guaranteed entrance into a U.S. university, that's a game-changer.   That firm now is based in Evanston.

If you put this background information together with the make-up of Northwestern's board and Eikenberry's avowed commitment to Rwanda's military, this raises questions.  The leader of the Buffett Institute is the perfect position for implementing military sale offset arrangements that use university placements.  This arrangement also makes Eikenberry's lack of PhD important in a way that has not been previously discusssed.  The fact that Eikenberry has no problem advocating for Rwanda bodes poorly for how he will use his platform at the Buffett Institute, which likely would draw criticism for being run by the guy who's shaking hands with Kabarebe.

Without a PhD and tenure, and with an extremely lucrative compensation package, Eikenberry lacks the conventional protections of academic freedom and could not easily turn his back on requests by the trustees.   (For instance, without tenure, my colleagues and I could never publish about these matters.)  Eikenberry's lack of intellectual freedom of course affects the institutional arrangements of those working under him, not to mention the independence of the Buffett Institute, part of which seems destined to be turned over to foreign and military policies that violate academic integrity and other values as well should he take over.
CODA:  Last Week
NU Provost Dan Linzer's intimidation of students -- warning them last Wednesday evening just before the Associated Student Government debate about bogus "defamation" problems with their resolution urging withdrawing the Eikenberry appointment -- and Linzer's instigation of the Faculty Senate's Executive Committee to rush putting together a one-sided package of information and faculty endorsements released with no advance notice less than three hours before the Senate meeting will be scrutinized later.   

These actions are further evidence that NU's engagements with Qatar, and now Rwandan, dictators have proven inspirational for our administration.  Northwestern is being run increasingly like a Gulf State, and not just on their behalf; meanwhile, Qatar shows no signs of democratizing since the founding of "Education City," and remains notorious for its labor trafficking violations, jailing dissidents, and media repression (ranked in 2015 #115 out of 163, well behind poor countries such as the Dominican Republic (#63) and Togo (#80); and there is no sign of progress--Qatar is down five places from 2013 despite the eight year presence of the Medill Journalism school.

Petition on Behalf of Academic Integrity-Sign Here
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