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

Monday, February 29, 2016

Please Support Northwestern Faculty Trying to Stop NU Board from Appointing Ret. Lt. Gen. Karl Eikenberry to Run Global Studies Institute

Ret. Lt. Gen. Karl Eikenberry, Former Ambassador to Afghanistan (2009-11), speaking to Rwandan soldiers.  
See Edison Akugizibwe, "Rwanda, U.S. Strengthen Military Ties," Feb. 4, 2015

Please read, sign, and circulate this petition of NU President Morton Schapiro and Provost Daniel Linzer circulated today by Northwestern Faculty, Staff, Students, and Friends in Support of Academic Integrity, an ad hoc group seeking your support to stop Boeing, General Dynamics, Caterpillar, and Abbott Laboratories from installing their guy to run the premiere global studies research institute at Northwestern. (These are the firms whose CEOs and directors dominate the Northwestern Board of Trustees.)

My colleagues and I will be making a presentation to the Faculty Senate on Wednesday, March 2 and would love your support.

Here's the link to the petition to "Withdraw Appoint of Ret. Lt. Gen. Karl Eikenberry to Run NU Buffett Institute"on

The Deportation Research Clinic is part of the Buffett Institute for Global Studies at Northwestern.  So is a research working group on the Global Research University, of which I am a co-convener.  Eikenberry could and appears likely to discontinue both.

The details are in the petition. Please sign and spread the word on Facebook and other social media.   Thank you!!!

Friday, February 19, 2016

How Many DOJ Attorneys Does It Take to Deport a U.S. Citizen? Boston Hearing Today

photo from Robert's mother, provided to Cardozo Law School Immigrant Rights Justice Clinic for lawsuit exhibit

Oral arguments on a Plaintiff's Motion for Summary Judgment are scheduled for today at 2 p.m. in Boston.  Six federal attorneys are named on briefs claiming someone with copious documentation of birth in Lawrence, Massachusetts is not a U.S. citizen

As reported here previously, Robert Dominguez was born in 1979 in Lawrence, Massachusetts and deported in 1999 to the Dominican Republic.  A decade later, in 2009, he procured a U.S. passport and returned.  In 2011, he was arrested on a drug charge and Immigration and Customs Enforcement (ICE) and the State Department decided to ignore copious photographic and documentary evidence and rescind Robert's passport.

(A previous team of civil attorneys led by a lawyer without expertise in citizenship and immigration law filed a lawsuit under the Federal Torts Claims Act, but did not first fix Robert's legal status; the case was dismissed.)

Robert is out of jail, but terrified of being deported again.  For Robert, citizenship is not a protection against deportation, and a run-in with the law means a ticket to the DR.  (I'm no expert, but I imagine that being hounded being ICE is not standard treatment for addiction.)

After receiving documents from the Deportation Research Clinic at Northwestern University, the Cardozo Law School Immigration Justice Clinic stepped in to see if they could figure this out.  

In 2013, a team led by Clinic Fellow Andrea Saenz met with Robert and initiated negotiations with the government.  When common sense failed to prevail, the Clinic went to court.  Under 8 U.S.C. § 1503 (Denial of Rights and Privileges as a U.S. Citizen), a judge can order the State Department and the rest of the U.S. government to fix their records and recognize Robert's rights as a U.S. citizen.  

In the ensuing years, Attorney Saenz and the Immigration Justice Clinic students amassed a shocking amount of evidence, including a photograph of Robert's mother pregnant with Robert, as verified by their location in a Lawrence hospital with another family who gave birth in that same time frame.  How many of us born here would have that?  And how about the Baby Dominguez hospital bed tag she saved?

The information above matches the information on Robert's birth certificate that was contemporaneously filed at the Lawrence City Hall, where it exists today.  

The one problem with the birth certificate is that Robert's mother's legal first name is Juana and not Patria.  To obtain sponsorship for a "green card" she was using the name of her husband's sister, who died at the age of nine.  You can read the details of this piece here. The bottom line is that none of this discredits the copious photograpic and documentary evidence of Robert's birth in the United States.  

The DR birth certificate Robert's mother procured when he was a toddler caused confusion in 1999 when Robert was 19 and in a remote detention center without contact with his parents or an attorney.  But in the intervening years this was all straighted out and the U.S. Consular office issued Robert a U.S. passport in 2009.

It was seemingly straightened out again in 2011, when the State Department's Diplomatic Security Service initiated a fraud investigation.   According to filed statements, "On October 13, 2011, Agent Baldwin conducted a field visit to Lawrence City Hall to personally verify the validity of the Massachusetts birth certificate Mr. Dominguez had used to obtain his passU.S. passport." 

Having found the original, authentic birth certificate with information that matched the biographical information in Robert's file, one would think the case would be over and the government would find a different way to waste taxpayer funds.  

Instead, Agent Douglas Baldwin decided that the birth certificate with Robert's name belonged to another individual.  Baldwin decided that Robert somehow came into "possession of a valid birth certificate that belongs to another person but bears his same name, childhood address, month, and year of birth" (Plaintiff Brief, Dec. 18, 2015).  Neither Agent Baldwin, nor the six federal attorneys denying Robert his lawful recognition as a U.S. citizen have been able to find the "other" Robert Dominguez, a different individual who has to exist to claim this is not Robert's birth certificate.  

According to the Plaintiff's Motion, 
Defendant's theory is that this 'doppelganger' Roberto Carlos Dominguez was born in the same town where Plaintiff grew up; was born in the same month and year as Plaintiff, early November 1979; at the time of his birth, had a mother living at 70 Cross Street, the same address where Plaintiff and his parents lived throughout his early years; and that, through some incredible coincidence, Plaintiff was able to obtain this individual's birth certificate.  (Pl. Motion of Law for Sum. Judgment, Dec. 18, 2015, p. 16)
 The Plaintiff brief also points out that, "Unlike the U.S. birth certificate, there is no corroborating evidence of a Dominican birth for Plaintiff, such as hospital documents or evidence of Plaintiff's mother pregnant or even present in the DR in 1979." (Pl. Motion of Law for Sum. Judgment, Dec. 18, 2015, p. 19)

I reviewed the facts in this case Wednesday with students in "The Rule of Law" seminar I teach.  We were discussing that week's assigned reading of Franz Kafka's The Trial (Der Prozess).  The focus was on Kafka's insights about how the law occupies our interior lives and that we everyday people are the ones who make it happen, not the remote officialdom one finds in texts by Max Weber.  At the same time,  Kafka points out, we preserve a view of the law as universal and beyond the specificities of individual quirks and demands.
We, including agent Douglas Baldwin -- with whom I spoke with just long enough to hear a gruff, sincere federal employee who was unmistakably a Boston native -- as well as his attorney colleagues, are the individuals responsible for how we engage the law, including when it comes to a poor kid from Lawrence.  (Baldwin sounded sincere in his desire to speak with me and need to have it cleared with his supervisors; no idea about his motives for deciding there must be another guy out there with the same address and mother as Robert, someone who has never been located and from whom Robert stole a birth certificate.)

By referencing a document from the DR his mother obtained to make the law fit his family's needs - so he would have something that gave him the same parents names as those of his siblings - the following attorneys are relying on a thin, obvious fiction and ignoring the thicker, more believable fiction of his still arbitrary state identity bestowed by the State of Massachusetts and the Government of the United States.

These attorneys are:

Carmen Ortiz, U.S. Attorney
Rayford Farquhar, Asst. U.S. Attorney
Benjamin Mizer, Principal Deputy Asst. Attorney Gen. Civil Division
William Peachey, Director, District Court Section, Office of Immigration Litigation
Elizabeth J. Stevens, Asst. Director, District Court Section, Office of Immigration Litigation,
Brian C. Ward, Trial Attorney, Office of Immigration, Civil Division, US DOJ

Enough with the harassment, yes?  Close the case.  Instead of putting our government's resources into persecuting U.S. citizens, how about supporting attorneys to represent those presently detained and facing a gang of agents and lawyers dedicated to removing people from their la
wful place in the United States?  Are the attorneys above especially otiose robots doing their jobs, or are they offering disingenuous pseudo-legal feints to avoid losing?  Either way, right now, they're the ones fraudulently misstating Dominguez's true identity and trying to sanction government kidnapping.

2/20/20  UPDATE:  Attorney Saenz reports that at yesterday's hearing the judge seemed impressed by the amount of evidence her team amassed proving Robert's birth in the United States.  I know it's work for Saenz and her students, but it wouldn't be the worst thing in the world if they lose they Motion for Summary Judgment and the case goes to trial.  That way the jury and public can see for themselves the absurdity of the government's position and, by extension, the irresponsibility of those advancing it. 

Also, thanks to Dan Kowalski, editor of the LexisNexis Legal Newsroom Immigration Law, for linking to this story and coming up with a better title than the one of my original post, "How Many U.S. Attorneys and Assistant U.S. Attorneys Does It Take to Deport a U.S. Citizen?"  I just changed mine to the one he used because Dan's title also more accurately reflects the distribution of attorneys across various DOJ components.

Monday, January 18, 2016

U.S. Citizen Released after 18 Months in Houston CCA ICE Jail

  U.S. Government STILL Capturing Its Own Citizens and Holding them as Aliens

Vox in a Box - Dog Chasing His Tail – Kobol the Tail Hunter!


Case Clogs Crowded Immigration Court Docket
Immigration and Customs Enforcement Wastes Taxpayer Money,
Ignores Immigration Judge Request to Investigate and Drop Case Based on Lack of Evidence

 Deportation Research Clinic Intervention Helps Free Another U.S. Citizen

On January 5,  2016, Lorenzo Palma, with a lawyer finally by his side (Nashville-based civil rights attorney Andrew Free), won his release from the Houston CCA immigration jail.  Ever since immigration judge Saul Greenstein flagged the possibility that Mr. Palma, 39, unbeknownst to himself, might have acquired U.S. citizenship from his mother, who, born in Mexico in 1948, unbeknownst to herself, might have acquired it from her father, the family had been on a scavenger hunt to find evidence the government already had to prove Lorenzo's maternal grandfather Lazaro Palma was born in the United States and resided there 10 years, five of which were after the age of 16.   

The search required the location of decades-old records, ranging from Lazaro Palma's 1914 Texas birth certificate to a 1950 manifest to various other documents and affidavits, all of which cost the family time, worry, and money.

Lorenzo's is a case study in the different outcomes when respondents are subject to either the "Goofus"-s or "Gallant"-s who preside over immigration courts, and the need for everyone who is in ICE custody to be assigned a government-funded attorney with expertise in immigration, citizenship, and civil rights law.  

(Goofus and Gallant are children's book characters who illustrate situational choices that are either infantile, intemperate, and injudicious, or mature, thoughtful, and judicious.)

 "Goofus and Gallant - October 1980" by Source (WP:NFCC#4). Licensed under Fair use via Wikipedia -

IJ Goofus rushes through cases, ignoring the possibility respondents might be U.S. citizens.

IJ Gallant makes careful inquiries of respondents to ascertain if they may be U.S. citizens.
Although the immigration court benchbook and various press releases from the Executive Office of Immigration Review suggest that immigration judges conduct inquiries of pro se respondents to evaluate the possibility of U.S. citizenship, Lorenzo, like hundreds before and after him, had the misfortune of encountering Goofus Richard Walton, who has a cavalier attitude toward the respondents before him and outside the presence of observers fails to inquire of the U.S. citizenship status of respondents, which requires as well inquiries about the citizenship status of their parents and grandparents.  

(On July 30, 2015 Walton threw a bit of a temper tantrum in talking over and ignoring an attorney's arguments to have a bond hearing. The attorney and public were denied a reasoned response to her detailed legal analysis as to the custody implications of the government not meeting its burden of proof; even if Walton disagreed, the public deserved the adjudicator's reasoned analyses of the case law she cited, not just a denial by fiat.  The attorney had flown out from Los Angeles and abided by other requirements he imposed. I was appalled by what I observed in that hearing and others Walton conducted, and requested a copy of this recording under the FOIA, which does not require a privacy waiver for the release of public hearing recordings, just written records. You can listen to him rant here.  1 of 2, 2 of 2

The deportation order was terminated, confirming the government had a weak case, as the lawyer advised Walton; I lost touch with her and do not know further details.)

Lorenzo's travails began a few months before he was supposed to be paroled from the prison at Huntsville, Texas.  Per standard operating procedure, in mid-February, 2014, an ICE agent impersonated a legal worker and spoke with Palma on the pretext of "trying to figure out your case" for parole purposes, Palma told me.  From this interview she obtained information the government used for its arrest report and Notice to Appear (NTA).  Until Lorenzo and I were reviewing his documents in late July, 2015, it never occurred to Lorenzo that she was with ICE, "No one had ICE shirts; they spoke with a whole group of us," he told me.  

In  June, 2014, still at the Huntsville prison a month after he was supposed to be released on parole, he appeared in a televideo hearing before adjudicator Walton, who went through the motions of informing Lorenzo of a list of overburdened pro bono attorneys who rarely provide individual representation.  Walton never asked questions that would ascertain whether Lorenzo might be a U.S. citizen, a matter of some complexity. 

 Lorenzo wrote every attorney and organization on the list.  No one responded. 

Meanwhile, on September 22, 2014 IJ Greenstein took over the case.  At their first encounter, he asked about the citizenship status of Lorenzo's mother and grandfather, and immediately ascertained that Lorenzo's genealogy was consistent with a potential claim of U.S. citizenship.  From that first hearing he repeatedly cajoled ICE agents to investigate, and challenged the government attorney for claiming that Lorenzo had produced no probative documents when it turned out that he had -- after persistent questioning Greenstein discerned the ICE attorney did indeed possess a copy of Lazaro's Texas birth certificate and that ICE had failed to follow up on this with further research.   

You can listen here--note IJ Greenstein's attentive patience and the government attorney John McPhail's (sp?) indifference to the fact that his own carelessness may mean a U.S. citizen is being falsely imprisoned.  

Over the course of numerous hearings one discerns IJ Greenstein doing work that should be done by the government or an attorney, and only as a last resort by an immigration judge.  At a hearing in March, 2015, exasperated by ICE failing to heed his request to interview Lorenzo's mother, IJ Greenstein places a call to her himself and, on the record, waits while she pulls off the freeway before finally figuring out the narrative but not proof of hers and Lorenzo's U.S. citizenship.  

Toward the end of their telephone conversation, Rita, who up until that point had been addressing IJ Greenstein's questions through the interpreter as she might have been discussing old family affairs with an inquisitive neighbor, realizes exactly what is happening and is overwhelmed.  IJ Greenstein has made no promises and is stern about Lorenzo's burden of proof; but IJ Greenstein's tenacity in pursuing the truth moves Rita to tears.  The interpreter translates, "It is very hard to find a judge like you, very considerate, very hard to find anywhere a judge like you."

At the behest of IJ Greenstein, YMCA attorney Tatiana Obando pushed Lorenzo's elderly stroke-afflicted mother to fax Ms. Obando relevant papers that she in turn submitted to the court; but Ms. Obando lacked the resources to do her own investigations or to appear in court on Lorenzo's behalf.

When, by sheer coincidence, I first met Lorenzo while observing hearings for the detained docket on July 30, 2015 Lorenzo told IJ Greenstein that he was giving up and on the verge of agreeing to sign out and be deported to Mexico, a country where he had never resided and in which he was born only because his mother could not afford Texas hospitals.  Even more poignant: Rita, who acquired U.S. citizenship from her father Lazaro, remained in Mexico and was raised by her grandmother, and not her parents in Texas, because, she told me, "I didn't have papers."

The rest of the story behind Lorenzo's release is one of a little organizational assistance on my part and Attorney Free's hard work, time, and dedication to giving Lorenzo the attorney everyone in deportation proceedings needs. (Free is an attorney who collaborates with the Deportation Research Clinic, of which I am the director; Free represents the Clinic in our FOIA litigation and has sued the government for detaining U.S. citizens encountered in Clinic research.)

Just after the ruling in his favor, Lorenzo called me from Houston CCA, elated and also aware of how easily it could have gone the other way,  "I was praying, please God, don't let me go in there by myself."   Lorenzo had spoken with attorney Free the week before, but wasn't sure his family could put together the funds for Mr. Free's plane trip.  Lorenzo was overwhelmed with gratitude when on the morning of January 5, he first laid eyes on Mr. Free, a solo practitioner who had cobbled together the cash he received from Lorenzo's common-law wife, Jacqueline, with his own frequent flier points and somehow made it for the hearing.  

Confronted in court for the first time by a lawyer, the government conceded it had not met its burden of proof and waived appeal. Lorenzo was released hours later and is with his mother and catching up with his brother and sister nearby; Jacqueline recently visited and is back at her job in Colorado.  Lorenzo will finish up his parole in Texas and then return to their home near Denver in August.

Legal Analysis
The fact-pattern above is fairly typical.  It has two implications: First, it further underscores the need for everyone in removal proceedings to have a government-funded attorney, to guarantee no further violations of the well-recognized due process rights U.S. citizens have not to be deported as aliens, and to ensure the legal rights of everyone else in deportation proceedings, as the Second District Court judge pointed out this fall in an order responding to the National Immigrant Justice Center Watson civil complaint.

In addition, this case raises tough questions about the reasoning behind the recent bizarre Ninth Circuit decision deferring factual findings of U.S. citizenship to a single district court judge.  I will discuss this in my next post, updating the filings by the Cardozo Immigration Justice Clinic on behalf of U.S. citizen Roberto Dominguez, but it is obvious that cases with so much at stake and of such complexity -- in which the government is the main source of the evidence on which the respondent must rely for her rights -- allowing a single individual to make such decisions cedes too much power to the government.  This deference to the fact-finding of a single judge goes directly to the logic of the Sixth Amendment: a right to trial by a jury is not just protection against an authoritarian government, but also an assertion that single decision-makers should not be granted unilateral authority.  Especially because those in deportation proceedings at present do not have a right to a government-paid attorney, they have an even greater claim on the government's institutions of judicial review.

Thursday, September 17, 2015

Colorado Judge Swats Down GEO's Motion to Reconsider Class Action Lawsuit Brought by Captive Labor Force, New Evidence of GEO Labor Violations


GEO claims paying people fair wages "will result in manifest injustice," and claims that ordering a trial by jury, i.e., the rule of law, "should be corrected before litigation in this case and other cases grows in scale."  (Menocal et al. v. GEO, Doc. 29, Motion to Reconsider, 2, August 4, 2015).

Federal District Court John Kane disagrees. (Doc. 31, Order, August 26, 2015).

In the latest round of motions from a lawsuit last October, GEO whined that laws designed to prevent exactly GEO's exploitation of labor had some other purpose, and that it would be absurd to follow their plain text.  One new argument was that the Plaintiffs had no expectation of fair payments for their labor.  And, GEO argued, it would really suck for them and other prison firms if the lawsuit were to proceed per the judge's previous order.

The judge's response, in two pages of text: the arguments either were the ones he already found unpersuasive from the first round, or a new argument that the Court will not consider "for the first time on a motion for reconsideration." 

New Documents Further Contradict GEO's Defense


Reimbursement invoices for the work program being released in dribs and drabs responsive to my FOIA lawsuit further document that GEO is making up its own pay scales and not just acting as a pass-through for ICE's $1/day payments last authorized by Congress in 1978.  Note that for GEO's Pearsall, South Texas facility, there is one column for the reimbursements from ICE and another for their own outlays.  This is consistent with other documents on which I reported in the working paper "One Dollar Per Day: The Slaving Wages of Immigration Jail, 1942 to Present," soon to be published in the Georgetown Immigration Law Journal.  (I'll fill in the link once it's published.)

This release further illuminates the conditions of a labor force compensated well below the minimum wage.  Excluded from these positions is the local community, once again highlighting GEO's violations of the Fair Labor Standards Act and the Trafficking Victims Protection Act (2008), codified in part in the statute prohibiting Forced Labor. 

According to18 U.S.C. 1589 (a) "Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means— (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person ... shall be punished as provided under subsection (d)."

The variation in wages suggests a rudimentary labor market, one with radically depressed wages because of captivity, and not people chipping-in because of boredom to help keep GEO in business.  This is more evidence that GEO is basing its business on forced labor -- were GEO not operating on a business model that assumes they can physically control their workforce, they would need to be paying wages of more than one dollar per day or even three.

Section (d) states: "Whoever violates this section shall be fined under this title, imprisoned not more than 20 years, or both. If death results from a violation of this section, or if the violation includes kidnapping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title, imprisoned for any term of years or life, or both."

While President Obama's rounding out his term by using his executive authority to enforce labor rights, maybe he should call up the Department of Labor and send out a few inspectors to check out GEO's cleaning, kitchen, and laundry employment practices in Colorado, Texas, and elsewhere, and charge them with violations of the FLSA and the TVPA.  Or, they could visit facilities run by the Correction Corporation of America or any of the other ICE facilities that use the same business model.

Thursday, July 23, 2015

NPR Airs Story on ICE Private Prison Labor

NPR reporter Alexandra Starr covers lawsuit and slaving wages to those in custody under immigration laws.  Listen here.

Note that in response to my assertion that those in ICE custody are not exempt from the protections of federal labo laws, GEO notes the dollar/per day level in an appropriations Act, but fails to engage with the fact the appropriation level set expired in 1979.   Note as well that there are many other labor laws that have little to do with wages, and from which there is not even old law that exempts from coverage those working for private prisons firms.

This includes standards of the Occupational Safety and Health Administration, and which were found by a California agency to apply to apply to a California resident in ICE custody courtesy of the Mira Loma Sheriff.

Thursday, July 9, 2015

Colorado District Court Green Lights Historic Lawsuit: Private Prisons Using Forced Labor of ICE Residents Ruled Illegal

Related: Recently Released Documents Show California OSHA 2008 Final Decision Ruling ICE Resident in Employer-Employee Relation with ICE Jail

In an historic decision, on July 6, 2015 Senior U.S. District Judge John Kane issued an order telling Defendant GEO Inc, that if people in their custody under deportation laws could prove they were forced to work, and that GEO was enriching itself as a consequence of this, then plaintiffs in a class action lawsuit would be entitled to millions in damanges. 

This is the first time a court has told a private prison firm housing people under U.S. immigration laws that it couldn't force them to work and that if it did, restitution and damages for this "unjust enrichment" could be pursued.

GEO holds more U.S. residents in custody under immigration laws than any other private prison firm, with the Corrections Corporation of America running second.  The case was brought against the GEO facility in Aurora, Colorado following attorneys reading a New York Times article featuring a link to my working paper, a revised version of which is now forthcoming in the Georgetown Immigration Law Journal.

After previous reporting on my FOIA findings failed to elicit legal interest, I decided to map out the program and legal history to help attorneys navigate a program that survived heretofore because of obscurity and ICE stonewalling on releasing information. Attorney Brandt Milstein saw the Times article, read my paper, and then contacted Andrew Free, FOIA attorney for the Deportation Research Clinic.  (Free is referenced in my paper's acknowledgements and footnotes for his insights based on his review of relevant government documents released under the FOIA).

Free, co-counsel on the case, provided legal research and arguments for the Plaintiff brief, submitted as well by co-counsel Nina DeSalvo, Executive Director of Towards Justice, and co-counsel Andrew Turner, and the rest really is now history.  Regardless of whether the appellate court overturns the decision, the United States now has on record a judicial order stating that private prisons may not force those in custody under immigration laws to work, and that firms can be held responsible for financial penalties if they are found to have done so.  The actual proof of these forced labor episodes is the low fruit--it is copiously documented--and the determination on these points of law will stand as a signficant developement in the history of civil rights accomplishments.

In the 1830s, prosecutors episodically attempted to hold slave owners, and those Whites who rented slaves, liable for criminal charges of cruelty or homicide.  Juries and judges were confused and voted or ordered in an ad hoc fashion--they were appalled by the specific events but also sensitive to the excuse that if people were property their owners could do with them as they pleased.  The legal theories in these cases helped crystallize intuitions about the inherent injustice of slavery and were part of the developing public debates in movements for its abolition.  Using the law to thwart injustice is a long-standing tradition in the United States, as is resistance to this and backlash.  This order is part of that tradition.

For the original complaint, and key excerpts, please go here.  The case is Alejandro Menocal et al. v. The GEO Group, Inc.,  1:14-cv-02887-JLK (D. Colo.).

 Less encouraging, and somewhat confusing, was Judge Kane's decision to follow the Alvarado Guevara precedent and those of Colorado state prison cases in finding that the Plaintiffs were not entitled to damages under Colorado's Minimum Wage Order.  (The specificity of findings related to the private prison profits seem inconsistent with the deference to the 1990 decision in the context of a federal government run facility, and the judge did not grapple with this distinction as it pertains to the definition of a labor market.)

In the event, this was the first case filed; a related cases is pending Suffolk County, Massachussetts and at least one more is being prepared.

New Documents Show ICE Knew Cal OSHA Ruled Mira Loma Work Program Fell Under Cal OSHA Jurisdiction: Employer-Employee Relation Found

Finally, according to information released to me recently through FOIA litigation I am now updating the forthcoming article to reflect the fact that in 2007 Cesar Gonzalez Baez, an ICE resident working for the Los Angeles Sheriff Department while housed at its Mira Loma facility, died after his jackhammer hit a power line and 10,000 volts of direct current charged through his body. Other horrified workers witnessed this.  After immediate brain damage Mr. Gonzalez died two days later.

The purpose of his labor?  Holes for new fence poles needed to expand the facility's perimeter responsive to ICE's demand for more bed space.   Cesar Gonzalez died so that ICE could lock up more U.S. residents.  (The Mira Loma facility was for those detained in the L.A area; when I observed hearings in 2009, everyone was a long-time resident of the United States and had extensive family ties; most were teenagers who'd grown up in the area and were picked up on minor or pretextual misdemeanor charges.)

There are numerous other episodes reflected in grievances released to me in this 501 page document. A full analysis is forthcoming in the law review article, but one point bears mention here: ICE's persistent confusion of its public affairs office with a propaganda outfit.  In the same time frame in which ICE was claiming to journalists, myself included, that the program was completely legal and that the ICE residents working in the facilities were not employees, the ICE top brass knew of a 2008 Caslifornia OSHA final decision finding that Cesar Gonzalez WAS in an employee-employer relation and that the LA County Sheriff had violated California's OSHA law.

ICE needs to stop pretending this work program is legal and at the very least immediately reflect the policy implications of the Cal-OSHA finding in its California private prison contracts, including with GEO's Adelanto facility, near Vacaville, the location to which the Mira Loma residents were transferred when that contract expired in 2012.

The Deportation Research Clinic, housed in the Buffett Institute for Global Studies at Northwestern University, conducts research informed by the emerging paradigm of forensic intelligence, whereby scholarship is tied to analyzing and creating new legal discourses and facts.

Thursday, June 11, 2015

Probable U.S. Citizen Robinson Martinez Returns After Deportation, Locked Up as Alien

 Caution: For Wonks Only!

This post reviews the statutory history of a portion of U.S. citizenship law that applies to children born of U.S. citizens out-of-wedlock after January 13, 1941; if interpreted by the statute's plain meaning, Robinson Martinez acquired U.S. citizenship at birth; if adjudicated based on ad hoc assertions about blanket effect dates for citizenship laws at odds with the plain language of the laws and code, he is not a U.S. citizen . 

"The Board," aka a single adjudicator,
Roger Pauley, wrote two contradictory rulings, one on February 12, 2014 and another on December 4, 2014, based on the exact same facts.  

Which one is right and why does this matter?

If you read the relevant statutes, as did Robinson Martinez, it would appear he acquired U.S. citizenship at birth by operation of law.  "The law" producing this status requires a close reading of several statutes and underlying bills (and the effective dates).  The single-authored Board of Immigration Appeals decision, relying on the plain meaning of the statute (8 U.S.C 1409 (b)) seems to have made the right determination in its February 12, 2014 decision, reiterating Robinson's reading of the law, pointing out the absence of a DHS objection to this, and remanding the case for evidentiary review and supporting Robinson's request for a change of venue for that purpose.

But on April 3, 2014, instead of implementing the order, Houston CCA immigration judge Saul Greenstein stood by his reversed order and, under a seemingly invented jurisdiction, sent the case back to his supervisors for review, depriving Robinson of his day in immigration court as previously ordered.

(I regret having to report this: IJ Greenstein was gracious in allowing my research assistant and me to observe hearings in his court at Houston CCA in 2013. His colleagues in that area thumbed their nose at the law requiring access.  Richard Walton told the guards not to allow my assistant to enter. Mimi Yam cancelled hearings.  And Clarease Yates locked us out.  Greenstein made a genuine and much-appreciated effort to keep his courtroom open.)

This is a tough case, not because of the plain meaning of the statute, but because of erroneous statutory interpretations inferred by the Board and various agencies.  They have been inventing a rule whereby the statute effective at the time of birth invariably determines one's citizenship status. This is demonstrably not true, and the echo chamber of administrative adjudicators and federal judges does not change this.

Some statutes confer citizenship at birth retroactively, discussed below; others exclude this.  In Robinson's case, the statute in 1986 specifically referenced the earlier time frame for his mother's date of birth, thus rendering her and in turn, Robinson citizens at birth, provided the evidentiary record supports this.

The principle advancing the analysis here follows the plain meaning jurisprudence favored for statutory analysis more generally. I favor it because it is the approach most amenable to government transparency and hence accountability.  If statutes mean whatever the DOJ attorneys or even judges believe suits their ideas of proper policy, independent of what the text says, then there is effectively no democracy, and no rule of law: we're stuck with whatever the folks in the robes say even when the plain meaning is entirely different. On balance, the decisions that hurt those in confinement are those that rely on prejudices and not the law in finding "absurd" results in the plain meaning of a text, thus depriving those Davids who are actually using the law to defend themselves any weapons at all against the government's Goliath.

Roger Pauley, BIA, Remand for change of venue and evidentiary hearing, 02-12-2014
Saul Greenstein, IJ, "Certifies" to BIA without hearing, 04-03-2014
Roger Pauley, BIA, Affirms legal analysis of Greenstein, 12-04-2014

Where Things Stand Now

Robinson was deported on December 12, 2014, without notice to his attorney and without time to file an appeal in federal court.  The quick action appears to have been retaliation for Robinson's persistent criticisms of CCA, including sharing information with me that was widely circulated in coverage of CCA's exploitation of their ICE detainees.  (He had been punished in other ways before this, including guards throwing away his legal documents during a transfer of him to Livingston.)

 On February 22, 2015 Border Patrol arrested and charged Robinson with Illegal Reentry (8 USC 1326(a)(1)(b)(1)).  He is being held at present in Brownsville, Texas, a classic example of how the prison industry uses deportation law to snare longtime residents for civil violations and then, when they return, fills up the federal prisons with people held on criminal immigration violations, a "crime" that is not only victimless but actually harms the general public.  (Mainstream economists agree on the overall benefits of free labor movement and labor markets.)

Admittedly, this is not an easy case; but most cases of people who are long-time residents of the United States are not easy: the government is demanding a biographical profile that fits its arbitrary classifications of borders and documents, and is not responsive to people's actual relationships, a complex web of commitments, dangers, needs, and fantasies.  The real problem is our fantasies about the importance of birth and family to membership in a political society, not failures of evidence, legal complexity, or life choices and imperatives.

That said, various components of the government are not up to the complexities of writing or understanding citizenship law. As has been said repeatedly by everyone from the Detention Watch Network to federal judge Richard Posner to immigration judge Dana Marks, the immigration courts are consistently unable to mete out decisions that comport with basic expectations of legality, much less justice.

The Facts: The Family Tree
The basic dispute on which the case hangs is whether Robinson's mother, Sara, was a U.S. citizen at the time of her birth in Mexico on July 4(!), 1952.

Her father, Gregario, was a U.S. citizen at birth in 1934; no one disputes this, nor that he and his descendants grew up in the vicinity of Mercedes, Texas, the site of his mother's birth.

Gregario was 17 years old at the time of Sara's birth in Mexico.

Sara was born out-of-wedlock to her mother, Maria.

Gregario's name is on Sara's birth certificate, and thus he legitimated her.

Maria and Gregario married in Hidalgo County, Texas in 1970.

Sara, then a resident of El Paso, gave birth to Robinson in Mexico in 1971.

She brought him back into the United States with her parents and they adopted him and raised him as their son and Sara's younger brother.

Robinson did not learn any of this until the U.S. government violated its public policy favoring preserving family relations and in 2010 put Robinson into removal proceedings.

The Law: Out-of-Wedlock Citizenship Law: 1941 to Present, Main Texts

Okay, it's a bit of a mess.  The key point is that the U.S. Code reflects a 1986 amendment that reduced the time of residence in the United States necessary for a father to convey citizenship to a child born outside the United States from five to two years after the age of 14 and did not restrict its coverage to those born on or after its passage.

Public Law 99-653, passed on November 14, 1986, simply states at Sect. 12 "Section 301 (g) (8 U.S. S. 1401(g) is amended by striking out "ten years, at least five" and inserting in lieu thereof "five years, at least two"."

(Public Law 97-116, Dec. 29, 1981, changes the relevant section number of the 1952 INA from 301 (7)(a) to 301(g).)

Thus, according to the plain meaning of the 1952 INA, Public Law 414 (June 27, 1952), as amended by the 1986 Act (Public Law 100-653), anyone born out-of-wedlock from January 13, 1941 through at least November 14, 1986, would have their citizenship status determined by section 301 (g) and in turn by Sect. 12 as stated above.

At present 8 U.S.C 1409(b) states:
Except as otherwise provided in section 405, the provisions of section 301(g) shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
So Robinson and his attorneys, and Pauley in February of 2014 are reading this and quite sensibly infer that Sara, Robinson's mother, was a U.S. citizen at birth and thus conveyed this status to Robinson, when she left her hometown of El Paso and gave birth to him in Mexico in 1971.

Crucially, the 1986 amendment to the Immigration and Naturalization Act does not restrict coverage of these changes to ONLY those born on or after November 14, 1986.

According to the plain text, therefore, as soon as the President signed PL 100-653, Sara acquired U.S. citizenship via her father Gregario and thereby transmitted U.S. citizenship to her son, Robinson.

The fact that this is the plain meaning of the 1986 text is reinforced by a 1988 INA "technical" amendment, which states that the 1986 amendment at section 12 "shall apply to persons born on or after November 14, 1986."  (PL 100-525, "Effective Dates")  

Public Law 100-525
October 24, 1988

Congress attempts a do-over.

Section (2) states that "the old section 309(a) shall apply-- (A) to any individual who has attained 18 years of age as of the date of the enactment of this Act, and (B) any individual with respect to whom paternity was established by legitimation before such date."

Sara was both well over 18 and also had her paternity established by legitimation before October 24, 1988.

Does this mean that Congress can retroactively apply in 1988 a citizenship rule to Sara that is at odds with the plain meaning of the statute it passed in 1986? If so, then Sara's citizenship status would be determined under the Sec. 301 (7) in effect in 1952, where by Gregario would have to have been been a U.S. resident until he was 19 years old for her to have acquired U.S. citizenship from his paternity. It appears as though someone in either the INS or Congress was seeing people legitimately claiming U.S. citizenship on the basis of the plain text of the 1986 Act and wanted to prevent this.

But they can't do this.  Common sense indicates that it would be bizarre for Congress to tell Sara in 1986, we passed a law and now you are a U.S. citizen, and so are your children who may acquire this status from you under our citizenship laws, and then in 1988 to say, "We passed another law and, even though you did nothing wrong, we are retroactively changing the citizenship status of you and your son."

The law behind this common sense head scratcher is called the Ex Post Facto clause of the U.S. Constitution, or perhaps the Due Process clause.  

Does it matter that neither Sara nor Robinson had any clue about any of this in this time frame? Not if the courts are going to be consistent with their rulings on Congress's plenary authority more generally.  The courts have been very clear on the point that all that matters in citizenship laws is the texts thesmelves, not their coherence, disparate impacts, discrimination, or stupidity.  Once Congress passes a 1986 law that makes Sara a U.S. citizen by operation of law, it is unconstitutional to change her status retroactively, regardless of whether she personally knew or did not know about the law.  Presumably others did and that's why Congress changed it.

There's a difference between construing a law however one feels like construing it, i.e., ignoring the plain text of the 1986 amendment--and finding the plain text of a law unconstitutional, i.e., the decision to retroactively remove people's citizenship.  The claim cannot be that the 1986 amendment always entailed application only to those born before its passage: 1) it does not say that; 2) previous statutes are retroactive and there is no prima facie reason to infer the 1986 bill is not; 3) if the 1986 bill did state it was operative only to those born after its passage, then the 1988 language would not have been introduced.  The 1988 bill is itself the best evidence that the 1986 bill included Sara.

EOIR Analysis

IJ Greenstein, April 3, 2014
I am not aware of any Constitutional challenges to the 1988 amendments but the funny part is that Sara and Robinson aren't the only one who fail to attend to the importance of the 1988 amendments: Greenstein also ignores the 1988 Act, as well as the portions of the 1952 Act that, according to the current statute, incorporate the bill's retroactivity to January 13, 1941 for out-of-wedlock foreign births.

Greenstein asserts, without quoting the 1986 law, that it is "first effective in 1986, and thus does not apply to the issue of whether Sarita Martinez acquired U.S. citizenship."

Greenstein cites for this claim Lake v. Reno, 226 F. 3d 141, 144 n. 1 (2d Cir. 2000) and U.S. v. Sandoval-Gonzalez, 642 F. 3d 717, 720 n. 2 (9th Cir. 2011).

Lake v. Reno is irrelevant: the petitioner in that case was born in 1953, and thus not in the Jan. 13, 1941 - Dec. 24, 1952 time frame applicable to Sara and referenced in 8 USC 1409.

Moreover, the petitioner prevailed  on the merits of his due process challenge:  
Interpreting Supreme Court precedent as authorized by our own precedent, we find that the gender-based distinction mandated by section 309(a) of the INA violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment. We therefore conclude that petitioner Lake holds United States citizenship from birth under section 301(a) (7). The decision of the BIA is reversed.
The Supreme Court later overturned the Second Circuit opinion on this, citing its ruling in Nguyen v. INS 533 U.S. 53 (2001) (finding sex discrimination of the different requirements for conveying citizenship through paternity versus maternity constitutional).  But that precedent is tailored to claims about the parent/child relationship and not the validity of the longer requirements of U.S. residency for fathers as opposed to mothers.  (No doubt this has been challenged as well--if someone knows the case law on this I'd love to hear more about it.)

Likewise, Sandoval was born in 1957, again outside the range of the dispute Martinez has with the government's handline of his case.

Other than ignoring the Acts and current statute on which Robinson based his claim to U.S. citizenship, Greenstein appears to have invented a legal maneuver to bounce the case back to the BIA instead of following the Board's instructions by changing venue and allowing a new hearing (a proposal to which the DHS itself did not object and proposed Port Isabel, closer to Martinez's ailing adoptive mother/grandmother).

Specifically, Greenstein "certifies the case to the Board, given what appears to be significant legal error on the Board's part."  That's basically the equivalent of a district court judge telling an appellate panel it's wrong and instead of acting on the remand, sending it back up to the appellate court. The regulation Greenstein cites, 8 CFR 1003.1(c) allows for "certification to the board" under a large number of circumstances bearing on the administration of hearings, bonds, and custody in the immigration courts, but I don't see a criterion for IJ dissatisfaction with a Board decision.

THEN WHAT? December 4, 2014, Self-Reversal Without New Evidence

After Pauley receives the "You-blew-it" memo from Greenstein, a former staff attorney at the Office of Immigration Litigation, Ashcroft appointee, Roger Pauley, folds. Let's say Pauley and Greenstein are both men of integrity and doing their best: the upshot is that the law is so convoluted they can't figure it out. In such a circumstance, the decision in keeping with Due Process would have to be erring on the side of inclusivity, especially when the fact pattern is consistent with the broader policy goals favoring family unity. That is not the direction Pauley takes. Citing Iracheta v Holder, 730 F. 3d 419, 423 (5th Cir. 2013); United States v. Cervantes-Nava, 281 F. 3d 501, 503 n. 2 (5th Cir. 2002) (citing United States v. Gomez-Orozco,  188 F. 3d 422, 426-27 (7th Cir. 1999)); see also Matter of Rodriguez-Tejedor, 23 1&N Dec. 153, 163 (BIA 2001), he also affirms the notion that the statute in place at the time of birth controls criteria for citizenship.

First, the EOIR really wants to cite Iracheta, the one where the Fifth Circuit calls out the government for lying about a fake amendment to the Mexican Constitution?  Really?  More than anything else, Iracheta is a precedent for the proposition that the DHS and EOIR have zero credibility in their statements about citizenship law. To the point, Congress has repeatedly enacted INA laws and amendments that are retroactive and also prospective changes to U.S. citizenship claims, the caveat being these advance a one-way ratchet opening the window to U.S. citizenship, including the portion of the 1952 law that was retroactive to children born on or after January 13, 1941. In short, Greenstein and Pauley have in front of them the plain text of exactly the sort of retroactive laws they claim do not exist.

The law in effect for designating citizenship is whatever law Congress in the time frame of dispute indicates as its citizenship law, including bills passed subsequent to one's birth and that make one a U.S. citizen based on a legal fiction of retroactivity.

Not only 8 USC 1409 (b), which includes dates that retrospectively make citizens of those born out of wedlock between 1941and 1952, but also 8 USC 1407, 8 USC 1406, 8 USC 1405, 8 USC 1404, 8 USC 1403, and 8 USC 1402 also provide U.S. citizenship retroactively (e.g., a June 22, 1952 law stating "All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth").  

Matter of Rodriguez-Tejedor, 23 1&N Dec. 153, 163 (BIA 2001) references the 2000 Child Citizenship Act, and the federal regulations implementing it, which specify dates of eligibility that exclude the respondent, a clear difference with the 1986 Amendment on which Martinez is basing his legal challenge.

Pauley's citation of United States v. Cervantes-Nava is a case challenging the longer lengths of time required for residence in conferring U.S. citizenship to those born in foreign countries to those who are children of married parents.  It notes that the relevant statute is the one in place at the time of birth and ignores the plain text of statutes retroactively affording citizenship to those born decades earlier. 

Relevant Portions of Statutes

The Nationality Act of 1940
(October 14, 1940, Public. No. 853)

Sec. 201 The following shall be nationals and citizens of the United States at birth:  ...
(c) A person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has resided in the United States or one of its outlying possessions prior to the birth of such person;
(g) A person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the united States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: Provided That, in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years; Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes ipossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease... 
[Exemption for child born abroad to American parent employed by government or with employment having substantial ties to the United States.]
(h)  The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934.
 Section 205.  The provisions of section 201, subsections (c), (d), (e), and (g)...hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjuciation of a competent court.
  In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child's birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.
McCarran-Walters Act
66 Stat. 238
Public Law 414 (June 27, 1952)
Sec. 301 (1)  The following shall be nationals and citizens of the United States at birth:...
(3) a person born outside of the United States and its outlying possessions of parents both of hwom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of suh person;

(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years...

Sec. 309 (a)  The provisions of paragraphs (3), (4), (5), and (7) of section 301 (a)...shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this Act, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.

              (b) Except as otherwise provided in section 405, the provisions of section 301 (a) (7) shall apply to a child born out of wedlock on or after January 13, 1941, and prior to the effective date of this Act, as of the date of birth, if the paternity of such child is established before or after the effective date of this Act and while such child is under the age of twenty-one years of age by legitimation.

               (c)Notwithstanding the provision of subsection (a) of this section, a person born, on or after the effective date of this Act, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the motehr had the nationality of the United States at the time of such person's birth, and if the mother had previously been present in the United States or one of its outlying possessions for a continuous period of one year.
In 1986, Congress passed a law amending 301(g), codified at 8 U.S.C. 1401 (g);An Act To amend the Immigration and Nationality Act, and for other purposes
Public Law 99-653(Nov. 14, 1986)
Sec. 12.  Section 301 (g)  (8 U.S. S. 1401(g) is amended by striking out "ten years, at least five" and inserting in lieu thereof "five years, at least two".  

Sec. 13. Subsection (a) of section 309 (8 U.S.C. 1409) is amended--
(a) by striking out "paragraphs (3), (4), (5), (and (7) of section 301(a) and inserting in lieu thereof "paragraphs (c), (d), (e), and (g) of section 301"; and

(b) by striking out all after "wedlock", and inserting in lieu thereof "if a blood relationship between the child and the father is established by clear and convincing evidence, provided the father had the nationality of the United States at the time of the child's birth, the father unless deceased has agreed in writing to provide financila support for the child until such child reaches the age of eighteen yeras and if, while such child is under the age of eighteen years, (1) such child is legitimated under the law of the childs residence or comicile, or (2) the father acknowledges paternity of the child in writing under oath, or (3) paternity of the child is established by adjudication of a competent court."
 The 1986 changes to the INA were further revised by a 1988 Act to "make technical corrections in immigration related laws.
Public Law 100-525
Oct. 24, 1988

The Act states:
"(d) The amendment made by section 12 shall apply to persons born on or after November 14, 1986.
"(2) The old section 309(a) shall apply --
  "(A) to any individual who has attained 18 years of age as of the date of the enactment of this Act, and 
  "(B) any individual with respect to whom ppaternity was established by legitimation before such date.
"(3) An individual who is at least 15 years of age, but under 18 years of age, as of the date of the enactment of this Act, may elect to have the old section 309(a) apply to the individual instead of the new section 309(a).
"(4)  In this subection:
    "(A) The term 'new section 309(a) means section 309(a) of the Immigration and Naitonality Act as amended by section 13 of this Act and as in effect after the date of the enactment of this Act.
    "(B) The term 'old section 309(a)' means section 309(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act.
Public Law 8 USC 1409(b) (2012) states:
the provisions of section 301(g) shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time and while such a child is under the age of 21years by legitimation. 
Section 301(g) establishes U.S. citizenship for:
a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

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