A Word From Our Sponsor...

Okay, I guess that's me.

States Without Nations: Citizenship for Mortals may not exist, but the book is now a reality. It was published this week by Columbia University Press as part of its series New Directions in Critical Theory, edited by Amy Allen.

I hope you judge it by the cover. (Thank you, Columbia designers!)

Here's the catalogue copy:

As citizens, we hold certain truths to be self-evident: that the rights to own land, marry, inherit property, and especially to assume birthright citizenship should be guaranteed by the state. The laws promoting these rights appear not only to preserve our liberty but to guarantee society remains just. Yet considering how much violence and inequality results from these legal mandates, Jacqueline Stevens asks whether we might be making the wrong assumptions. Would a world without such laws be more just?

Arguing that the core laws of the nation-state are more about a fear of death than a desire for freedom, Stevens imagines a world in which birthright citizenship, family inheritance, state-sanctioned marriage, and private land ownership are eliminated. Would chaos be the result? Drawing on political theory and history and incorporating contemporary social and economic data, she brilliantly critiques our sentimental attachments to birthright citizenship, inheritance, and marriage and highlights their harmful outcomes, including war, global apartheid, destitution, family misery, and environmental damage. It might be hard to imagine countries without the rules of membership and ownership that have come to define them, but conjuring new ways of reconciling our laws with the condition of mortality reveals the flaws of our present institutions and inspires hope for moving beyond them.

And, yes, there are blurbs:

"Imagining governments and citizenship unbeholden to rules of birth-that is, cleaving the state from the family (i.e. the nation)-is the single most important thought experiment in political theory since John Rawls asked us to consider justice from a position of veiled ignorance. Jacqueline Stevens is not just a punchy provacateur, she is a careful scholar and an engaging writer. States without Nations is a must read for any scholar of the politics, sociology or legal studies of the state-and anyone concerned with distributive justice." — Dalton Conley, Dean for the Social Sciences, New York University


"States without Nations is a scathing indictment of kinship-based membership. In an argument as unrelenting as it is brilliant, Jacqueline Stevens challenges feminists, liberals, and, indeed, anyone who values peace and security, to join her in recognizing and rejecting kinship as the ultimate source of violence. This original and much-needed intervention will reshape debates in international relations, political science, and women's studies." — Jodi Dean, author of Democracy and Other Neoliberal Fantasies

"States Without Nations is a brutal exposé of the violent and mutually implicating underpinnings of liberal theory and national identity, and it constitutes nothing less than an early attempt to reconceptualize and reorganize world citizenship anew. I find it brilliant, bold, breathtaking, pioneering, far-reaching, and visionary. There's nothing else quite like it." — John Evan Seery, professor of politics, Pomona College

"No myth needs exploding more urgently than that of the tight association of state with nation, of the exigencies of governance with the idea of people defined by culture and common descent. No misconception has done more damage in modern political theory. And no theorist is better positioned to explode this myth-in its birthright, where it lives, in its premises of blood and land and birth-than Jacqueline Stevens." — Jeremy Waldron, University Professor, New York University School of Law

Order Book

Newly Released ICE Memorandum Admits US Citizens in ICE Custody

On November 6, 2008 James Hayes, Jr., Director of Detention and Removal Operations (DRO) for Immigration and Customs Enforcement (ICE), signed a memorandum “Superseding Guidance on Reporting and Investigating Claims to United States Citizenship.” (Among the many Obama holdovers of policy and personnel from the Bush administration are the folks running ICE, including Hayes, presently "Acting" in this same position.)


The memorandum spells out the procedures DRO agents are supposed to follow when they are holding U.S. citizens, a situation the memorandum acknowledges is especially likely to occur when DRO officers are “exercising authority under section 287 of the Immigration and Nationality Act, 8 U.S.C.S. §1357,” a provision authorizing local law enforcement agencies to detain aliens, not U.S. citizens. Section 287 has been associated with numerous egregious law-breaking acts by local police officers and sheriff's officers, as well as by ICE agents, including the deportation of US citizens through classifications initiated in state prisons and county jails.

I recently received the document in partial response to a FOIA request for ICE documents pertaining to Mark Lyttle, a U.S. citizen who was born in North Carolina. Last fall ICE agents invented a name for him and signed documents indicating he was born in Mexico, even though their own reports from various databases clearly stated that Mark was a U.S. citizen and born in the United States. (For more on Mark's case, read here.)

The two-page memorandum reveals the following:

+ While ICE public affairs officers were telling reporters ICE was "never" detaining U.S. citizens, ICE Operations officials were telling its detention and removal officers, here's what you should do to stop detaining U.S. citizens.

+ ICE officers are supposed to be investigating whether people who may not know they are U.S. citizens are indeed U.S. citizens. In the cases I have studied, agents do not do this, and they ignore hard evidence of US citizenship that arises in this research. (The file ICE had for Mark included printouts from federal and state law enforcement databases indicating in numerous places that he was a US citizen and that he was born in the United States.)

+ ICE is violating its policies on classifying documents. This “law enforcement sensitive” classification may be used only when the release of the document “could cause harm to a person's privacy or welfare, adversely impact economic or industrial institutions, or compromise programs or operations essential to the safeguarding of our national interests.” (See Department of Homeland Security Management Directive System's classification “For Official Use Only.”.)

None of the above apply to a memorandum protecting the civil rights of U.S. citizens.

This rule states further: "Information shall not be designated FOUO [this includes "law enforcement sensitive"] in order to conceal government negligence, ineptitude, illegalities, or other disreputable circumstances embarrassing to a government agency.”

Prohibiting public disclosure of rules that protect the rights of U.S. citizens has no legitimate law enforcement purpose. Its only function is to allow ICE to deny it is deporting US citizens and to deny those in ICE custody knowledge of their due process rights.

Should ICE be commended for issuing a memorandum in which it is attempting to encourage more care on the part of its agents? This is tempting, if one lives in the land of Sheriff Joe Arpaio. For those of us who still remember the U.S. Constitution, this document should be a call to action.

The only honorable and legally valid memorandum from an agency aware that when it tries to implement a law designed to deport criminal aliens it demonstrably risks deporting U.S. citizens, i.e., kidnapping, is one to Congress urging the repeal of 287: "We cannot enforce this law without violating the due process rights of U.S. citizens. Therefore, we are requesting that Congress repeal 287 g and provide full due process protections to everyone in removal proceedings."

Of course Congress can also do this itself, or it can wait and allow US citizens to be rendered stateless while wasting taxpayer money on the lawsuits across the country as these situations are remedied.

(For more on the illicit actions from 287g operations, see "The Policies and Politics of Local Immigration Enforcement Laws," issued by University of North Carolina and the North Carolina ACLU in February 2009 and "Forcing Our Blues Into Gray Areas: Local Police and Federal Immigration Enforcement," a report by Appleseed, revised January, 2008.)

Daniel Ellsberg and His Country: An American Love Story

"The Most Dangerous Man in America," a documentary by filmmakers Judith Ehrlich and Rick Goldsmith, is being shown in Los Angeles and New York (until September 29th at the Film Forum) as well as film festivals. I hope it gets a broader release because it's best seen in a theatre, not because of the film's cinematic qualities but because that's one way to feel what Ellsberg and the filmmakers show us: individual conscience is a group activity.

The film, brilliantly edited, tells a number of stories and stories-behind-the-stories (and it was a nice surprise to encounter in the film my friend and co-editor Richard Falk, himself a distinguished anti-war scholar and activist).

As political narrative the opening scenes depicting the Johnson White House's fabrication of Vietnamese aggression to elicit Congressional authorization for the Vietnam War are surreal in their spot-on resemblance to how Cheney obtained approval for the Iraq war. The insidiously crafted bogus threats indicating America was vulnerable worked their magic on two gullible Congresses. In the film, as in life itself, the people's branch of government comes off almost as bad as the imperial presidency.

(When Ellsberg first tries to leak the Rand Corporation's 7,000 page "Top Secret" report documenting U.S. lies behind the conflict dating back to the 1950s, it was to a spineless Senator J. William Fulbright, Chair of the Senate Foreign Affairs Committee who, despite his supposed rejection of U.S. policy, pretended as though the report did not exist. Ellsberg was shocked that politicians who had opposed the war for much longer than he had were too scared to release documents that might have ended it. He spent months carefully organizing the report's copying and delivery, and then nothing happened.)

It took months of smuggling out pieces of the report and then copying them in a secret location before Ellsberg had enough copies to share with key politicians. For this, Ellsberg believed that he might go to prison. In a typically thoughtful choice of honesty over secrecy, which also was an attempt to insure his 14-year-old son and nine-year-old daughter would not think him a kook -- what would they think if one day he's suddenly arrested as a traitor? -- he explained what he was doing as he was doing it. More than that, he wanted to honor them by including them in this important work; one evening his son was making the copies and his daughter was cutting off "Top Secret" at the top.

Ellsberg knew that he was putting his children at risk in various ways, including possibly sentencing them to a father behind bars, but preferred this over the certain calamity of lies. One of the film's motifs is calling into question bourgeois ideals of family and security, suggesting that these values corrode integrity and life itself. (If you care more about what your friends and co-workers think of you than you do about government bombing of civilians, innocent people die.)

Children 10 or older will really enjoy this film.

Why is this an American love story? Because it opens with a recently divorced Ellsberg working as a defense analyst and wooing a woman who, while drawn to him, could not abide by his support of the war. She ends their relationship but it seems that she started a process that profoundly changed him. Later, as Ellsberg is on the brink of leaking the Pentagon Papers, they reunite, marry, and Patricia supports him in this decision and goes underground with him for a while.

But more than their personal relationship, this is a story of Ellsberg's commitment to his government and democracy, faith in the idea that if the people knew the truth, they would do the right thing and end the war. A refrain that occurs more than once is Ellsberg's incitements of his fellow citizens to action. Quotations from Thoreau, Gandhi and Martin Luther King, Jr. come easily to him.

Despite the film's concluding notes indicating Nixon's resignation and the end of the Vietnam War, the Pentagon Papers seem to have played more of a role in the former than the latter. Nixon becomes consumed by revenge after the Supreme Court allows the press to publish the Pentagon Papers and this leads him to establish the secret "plumbers" group that would break into Ellsberg's psychiatrist's office and, later, bug the Democrats at the Watergate complex.

It seems a little sad but also fitting that the virtues of the woman Ellsberg married and that she admired in him meant so little to the country on whose behalf these passions were devoted. At one point Ellsberg quotes the aphorism "if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country" and tells us that he never understood why anyone would endorse loyalty to a friend instead of one's country when morality seemed to demand the opposite. There are a few other comrades-against-arms we meet who embody the Ellsbergs' ideals, all allies through the peace movement, but America does not come off as an obviously worthy love interest.

True, there is justice and even poetry when the judge in the Ellsberg and Russo case declares a mistrial and dismisses the charges after a Nixon henchman tried bribing the judge by promising him a high-level FBI appointment, but in the end Ellsberg seems to realize that the leaked report, the words themselves, did not really matter and his country would act in the same stupid way it always had. Ellsberg reflects on what it meant that after all he risked and lost, people seemed not to care.

It is unclear whether Ellsberg believes that his love for America has been betrayed, will remain ineluctably unrequited, or whether America might someday reciprocate. Perhaps that's what makes this such a great story.

UPDATE, 9/28/09: Today's column by Frank Rich shows how these debates from the 1960s are being rehashed in the Obama White House.

Deported New York City Resident Alleging Unlawful Detention Wins $145,000 Settlement From NYC, And So Can You!

photograph from tenth anniversary of NYU Immigrant Rights Clinic

A couple of weeks ago Cecil Harvey, a legal permanent resident for 36 years and a citizen of Barbados, received his check from the City of New York for $145,000, part of a settlement last May in response to his lawsuit claiming Rikers Island Jail illegally confined him for over a month because the jail staff thought Immigration and Customs Enforcement might want to deport him. [Correction 9/10/09: Mr. Harvey directed that $10,000 from the settlement be donated directly to the NYU Immigrant Rights Clinic, so his personal check was for $135,000.]

Especially inspiring about this lawsuit is that a detainee and immigration attorneys who are more used to playing defense than offense in the legal system prevailed. Their victory stands as an object lesson for thousands of other U.S. residents who are being illegally detained by law enforcement. Crucial here is that Mr. Harvey won these damages despite being deported as a criminal alien. In other words, the City of New York tacitly recognized that its guards cannot violate anyone's civil rights, even those of an alleged criminal alien. (Mr. Harvey, although presently in Barbados, does not concede the legality of his deportation.)

Under 8 CFR 287.7(d), jails are not allowed to hold someone awaiting transfer to ICE custody for more than 48 hours, not including weekends or holidays. But Rikers held Mr. Harvey for ICE 35 days in 2003 and in 2006 Rikers again held him for more than 48 hours. The jail's illegal deprivation of Mr. Harvey's liberty is, according to the complaint, part of a systemic practice in which the jail regularly ignores the immigration law and the due process rights of immigrants:

40. On information and belief, pursuant to this policy, NYC DOC frequently detains immigrants beyond the 48 hours authorized by 8 CFR 287.7(d)(3).

41. Mr. Harvey met other victims of this practice during the months he spent in ICE detention in 2007.

42. On information and belief, NYC DOC officials with final decision-making authority acquiesced in the decision to hold Mr. Harvey, with deliberate indifference toward. theresulting clear violation of his constitutional rights.

The text above is from the 18-page complaint filed on Mr. Harvey's behalf in October, 2008 by Alisa Wellek and Laura Trice, law school interns supervised by Professor Nancy Morawetz at New York University's Immigrant Rights Clinic.

The complaint contains many allegations that might trigger a lawsuit under 42 U.S.C §1983. (The statute allows people to sue those acting under color of law for violating their civil rights.) In this case, the underlying injury was the illegal and unconstitutional deprivation of Mr. Harvey's liberty, a serious example of government misconduct and in some cases felonious.

Keeping people locked up is supposed to hurt. That's the assumption of our current system of criminal incarceration. These harms may include the loss of employment, frayed family relations, and even medical complications from discontinued health treatments.

Mr. Harvey's unlawful detention resulted in all of the above. He knows he is not alone, and has called for "outlawing the conspiracy between between New York City and ICE."

Professor Peter Markowitz, who directs the Immigration Justice Clinic at the Benjamin Cardozo School of Law in New York City, characterized Mr. Harvey's experience as part of a larger pattern of illegal treatment of immigrant detainees in New York City custody – a pattern that has contributed to the unnecessary deportation of countless New Yorkers whose families are left behind.”

NATIONWIDE PROBLEM
Actually, this is happening around the country, including in the DeKalb County Jail in Georgia. For instance, Oscar, who was deported in June to Mexico, also seems like he has a strong case to sue for the violation of his liberty interests. In a fact pattern that holds for thousands of deported US residents, Oscar was picked up by the local police on a pretextual arrest, held for two weeks, unlawfully deprived of visitation by his wife, and then shipped off to Georgia and deported to Mexico, where I met him in late June.

Oscar, 25, originally entered without inspection nine years ago with his father when he was 16. He and his wife, Kimberly, a U.S. citizen, have three young children. Oscar, a contractor, has no criminal record, and if the DeKalb County Jail had released him after its 48 hour legal period for holding him for ICE had expired, then perhaps he could have obtained an attorney and figured out a way to remain in the country legally. (This was part of Harvey's allegation as well: the illegal detention impeded his ability to defend against the deportation.)

I spoke to Kimberly in July, on what turned out to be their wedding anniversary. She said, "He went to Court on Tuesday and the judge dropped all the charges. They wouldn’t let him out because ICE had a hold on him for 48 hours. When the 48 hours was up they put another hold on him. All they would tell me is that ICE had a hold on him. I would call back up there to see if they came and took him and they said they took another 48 hour hold on him. He was there for two weeks."

According to Professor Markowitz, there is no legal means for ICE to "renew" a hold, and yet jails routinely hold people for more than the 48 period legally allowed.

Linda, Kimberly's grandmother, isn't surprised, "That's the way the county is. They don't care. If they want to hold you for two weeks, they'll hold you for two weeks. This whole situation is terrible. The little girl is crying. They made the children here lose their father."

I tried calling Kimberly yesterday but her cell phone is turned off, presumably because she is unable to pay the bill. (She and Oscar both told me he was unable to reach her because without his income she couldn't afford the phone.)

DEPORTED US RESIDENTS CAN SUE, TAXPAYERS LOSE
The biggest disappointment for Mr. Harvey, indeed for any resident of a country whose government wrenches them from their homes and families because of fantasies about nations, was that he was ultimately shipped off to Barbados in 2007. His lawsuit states that the deportation itself was largely due to the impact of detention on his ability to prepare his case--he was stuck in an ICE facility in Alabama.

What does it mean that a guy who had been kidnapped and held incommunicado by a foreign government not only decided to fight for his ability to stay in that country, but also that the United States Constitution was meaningful enough that he could use it to sue the government that was breaking its own laws?

The good news, only possible because of Mr. Harvey's gutsy and inspiring use of the law to stand up to the government, is that New York City's attorneys acknowledged by their substantial settlement that Rikers Jail cannot break the law, even when the law is protecting a deported noncitizen and a criminal. This is an extremely important precedent that could potentially allow tens of thousands of other deported US residents to sue the places that illegally held them as well.

THE TAKEAWAY(S)
Alisa Wellek, one of the NYU law students who submitted the complaint, said, "One of the huge takeaways is that localities are subject to litigation. ICE isn't paying for it. New York City is paying for it." Her hope is that as the word gets out, local jails, including Rikers, will stop illegally holding people.

One thought for immigration attorneys and activists going to detention centers: download the lawsuit here and do it yourself! And don't be afraid to show some spine. According to one source familiar with the negotiations, the City's initial offer was $1,500. It's hard not to infer that the City attorneys wanted to avoid a lawsuit not only because of the damages but because of what would be revealed in discovery, when the jail and ICE would be subject to subpoenas. In light of the widespread illegal practices elsewhere, this motive may not be unique to New York City.

(The New York City Law Department did not respond to a request for comment.)

Another thought for the Department of Justice: start charging the law enforcement agents who are illegally holding people with false arrest and kidnapping. The law is clear about how long people can be held. When US Attorneys or state prosecutors do not file charges, it imposes an enormous hardship on the law-abiding taxpayers who must foot the bill. Not only is a criminal sanction the only real deterrent for the ICE agents and jail guards who are violating the rights of US residents--the City of New York is paying the settlement, not the wardens--it is the appropriate response to the outrageous and cavalier treatment of people the government is supposed to protect, not persecute.

Raleigh News and Observer Story on Mark Lyttle and the ICEcapades

Kristin Collins' article U.S. ignored evidence when it deported U.S. citizen to Mexico appeared in today's Raleigh News and Observer. It provides a succinct and revealing account of ICE mishaps leading to Mark Lyttle's deportation.

(Credit for today's post's headline goes to my friend Jamie; credit for the image goes to Serendipity.)

update 8/31/09: the original post was linked to the Charlotte Observer, but the story appeared first in Kristin Collins' own Raleigh News and Observer, as now linked above.

The Mexican-izing of Mark Lyttle: The First Steps in Deporting a US Citizen

8/21/09--click here for a slightly different version published today on Huffingtonpost.
________________________________________

Immigration and Customs Enforcement (ICE) has been deporting over a million people each year. Most are Mexican citizens residing here without legal status. But thousands of those being detained and even deported are US citizens.

This sounds unbelievable, and it should. ICE has no authority over US citizens. Nonetheless, a systematic examination of thousands of individual case files for detainees in southern Arizona between 2006 and 2008 revealed that just over one percent were deemed US citizens by an immigration judge.

Estimates are that an additional one percent of detainees are US citizens but either do not know this, or choose not to remain locked up for an indeterminate time with few due process rights and hence falsely confess to alienage and agree to be deported.

(This estimate is based on reports from criminal attorneys contacted to file habeas briefs, as well as pro bono immigration attorneys and attorneys who work on federal contracts for Legal Orientation Programs servicing detention centers.)

Mark Lyttle, 32, a US citizen born in Salisbury, North Carolina can attest to all of this. He knows what it's like to be kicked out of his own country and, among other things, have to pretend to be Cuban in Honduras to avoid being put in a US prison for false impersonation of a US citizen, a charge lodged against Mark by Customs and Border Patrol at the Hidalgo border just after Christmas when he tried to return home.

Right, this makes no sense, and it is unbelievable.

LEGAL INSANITY
Last week I received Mark's "alien file" maintained by the Department of Homeland Security. It includes a significant paper trail, or rather, copies of the legal paper chain that pulled Mark into statelessness.

Today I want to focus on the first tiny, ridiculously important event that led to Mark's four month journey through five countries in Latin America. In upcoming posts I’ll review additional documents.

SCAAP at Neuse Correctional Institution
North Carolina is one of the numerous states participating in the State Criminal Alien Apprehension Program. (For more posts on this, start here.) This means prisons screen for aliens or possible aliens and report them to ICE. The ICE agent then comes to the prison, in this case the Neuse Correctional Institution in Goldsboro, North Carolina, and interviews the inmate to determine if the person's legal status as well as criminal record warrant deportation.

On August 27, 2008, according to a Neuse employee, "five or six ladies who do the admin intakes" would have been typing into the North Carolina Offender database vital statistics for the approximately 60 inmates they were screening that day.

For Mark this meant a record stating:

Race: OTHER
Complexion: MEDIUM
Ethnicity: ORIENTAL
Place of Birth: MEXICO

Mark says he remembers the interview. The woman told him he had brown skin, so maybe he was from Mexico. Or maybe he was "Oriental," whatever that means. She was going to alert ICE to follow up. (Perhaps she did this by typing “Mexico” as Mark’s place of birth? I guess Mark was lucky: she could have typed "China" -- of course Mark has no relatives from Asia, either.)

The Neuse officer describing these procedures said the prison’s job is alerting ICE to possible alienage but not making a final determination. After all, immigration status is the province of federal immigration agencies, not state prison employees. Upon learning that ICE issued an administrative removal order for someone Neuse had incorrrectly characterized as born in Mexico, the officer said, “I don't understand how ICE did this. They're the ones who are supposed to check this.”

On September 2, 2008, Mark signed an affadavit stating that his name was Jose Thomas and he was born in Mexico. The document’s information is handwritten by ICE agent D. Faucette.

“Jose Thomas”-s mother is named as Jennie Lyttle (his mother’s name is Jeanne) and his father is named as Thomas Lyttle – deceased.

The man who was swearing that his name was Jose Thomas and he was born in Mexico signed the statement: “Mark Lyttle.” Mark does not speak a word of Spanish.

This was the solitary legal document attesting to Mark’s alienage on which ICE relied when on September 5 a deportation officer issued Mark’s “Final Administrative Removal Order.” This document is authorized by 238b of the Immigrant and Nationality Act and deprives aliens and US citizens alike of the right to a hearing before an immigration judge.

At the time this order was issued, ICE also had Mark’s FBI record designating his citizenship as “UNTD STATES AMERICA.” And ICE had Mark’s social security number. The false information that might justify removal was construed as factual and the accurate information indicating US citizenship was ignored. So was the information about Mark’s long history of mental illness.

WHAT HAPPENED DURING THE INTERVIEW WITH AGENT D. FAUCETTE
When Mark returned to the United States he was detained by ICE in the Atlanta airport and interviewed on April 22. This is from an ICE transcript of that interview:

Q. Do you remember why you were ordered removed in December 2008?
A. I talked to an ICE officer and I asked her how Mexico was and to put me over there just to see how it was. She made up some kind of paperwork to make it look like I was from there.
Q. Did you ever tell the ICE officer you were from Mexico?
A. I never told her that.

Mark has a history of mental illness, which also was indicated in the criminal records ICE possessed. Indeed on December 17, 2008, an ICE health inspector evaluating Mark just before he was put on a plane to Mexico wrote:


According to WebMD, Bipolar I disorder is a “form of mental illness. A person affected by bipolar 1 disorder has had at least one manic episode in his or her life. A manic episode is a period of abnormally elevated mood, accompanied by abnormal behavior that disrupts life.”

Mark may have had a manic episode of wanderlust – one from which he tried to recover by signing a sworn statement on November 3, 2008 stating he was born in the United States and a US citizen.

ICE, however, maintained the delusion that the inconsistent and, frankly, goofy statement of Mark’s alienage was authentic and claimed that the more credible and easily verifiable evidence of his US citizenship was false.

When I told Mark’s attorney, Neil Rambana, that ICE had Mark’s FBI record indicating he was a US citizen, Rambana was furious, “That is the most dangerous precedent I have ever heard. Someone swept a whole heap of dust under a carpet because they didn’t want to do their job. These things are easily identifiable by those who have superior resources, but they failed to exercise an iota of effort.”

Commenting on the ICE documents I was reading verbatim from the FOIA-d files, Rambana said, “Everything you are reading is disgusting to me. You just read three different things that all came full circle and all tried to cover themselves by saying he acquiesced. So what if he acquiesced? They should have ascertained the truth; they needed to dot their I-s and cross their T-s. They had someone who looks the part, so they seem to have thought, ‘I'm just going to shuffle him through.’”

Mark is adopted, as are millions of other US citizens. Mark's biological father's name is as Mexican-sounding as Mark Lyttle; and of course someone in the US Embassy in Guatemala City contacted Jeanne Lyttle and was able to issue Mark a US passport based on the documents Jeanne faxed in less than 24 hours.

Rambana does not believe Mark's adoption ameliorates ICE's culpability: "This is the 21st century. People have all sorts of families. If we're not paying attention to the fact that this is a different age, when the nuclear family is not essential to someone's existence, then we are failing as a society."

ICE RESPONSE
According to ICE Public Affairs Officer Barbara Gonzalez, the agency believes that the decision by William Cassidy in Atlanta to deport Mark validated ICE's findings. Cassidy, like many so-called immigration judges, runs a kangaroo court. His actions on other occasions have provoked formal and informal complaints. And he has consistently ignored the instructions in the Immigration Judge Benchbook pertaining to the treatment of respondents who lack attorneys.

ICE has not indicated any concern about its agents deporting Mark. Gonzalez stated, “The review of the case shows that the officers executed a removal order issued by an immigration judge, so to my knowledge, there is no investigation into the matter.”

When ICE presents sworn statements by their agents affirming the factually inaccurate narrative of a mental patient, and ICE ignores government records and sworn statements from the same individual that are factually accurate, and thus compiles a record prompting a judge to deport a US citizen, ICE thinks it has done its job.

On July 6, 2009 I asked Gonzalez: “Is it ICE policy that a sworn statement to alienage be considered evidence of alienage and a sworn statement of US citizenship be disregarded? This is a fact pattern in many cases of US citizens being deported and I consider it a very important policy question.”

As of yesterday she was still working on a response. I will report this and other statements from ICE as I review the additional documents in Mark’s file. (If you want to be notified of new posts, just click on the RSS box on the far right side of the URL panel above.)

MARK’S RESPONSE
Mark is living in a group home in Virginia. We speak regularly. Mark’s comments a couple of months ago seem especially apt: “They’re supposed to be professional but they screwed up. The judge is going to look at it and say, ‘You knew all this and you still deported him? You’re crazy.’”

I Might Harm U.S. National Security, Therefore I Am: The New Truth of Global Warming

Sure it's only the second day this summer in Manhattan to crack 90 degrees (a new microclimate of island cooling? a weather trick by God to tease Al Gore?), so I'm wondering if that's why I'm listening to WNYC turn over its airwaves to these women from the national security establishment announcing that, gasp,

global warming exists!

(Warning -- this is NOT a Saturday Live sketch)

"This is not a hoax," said Sharon Burke, Vice President of Strategy at the Center for a New American Security, a DC group that stands for Developing Strong, Pragmatic, and Principled National Security and Defense Policies, "This is a real phenomenon. When the military tells you you need to think about it, then you need to think about it."

Right. Of course we do ... in the cynical strategy sessions of overachieving liberals who want to share snacks at whatever table is set by the folks who have the nuclear football, there because they thought conservatives too, what, puritanical? humorless? midwestern? White? southern? male? -- or had some other hangup preventing them from honestly realizing their ambitions for crude power and prestige.

Apparently the First Way and Second Way think tanks were too committed to principled (not pragmatic) and pragmatic (not principled) policies.

The WNYC host, no dummy (but a sub, so I don't have his name), and no fan of "climate change" or even global warming, kept pressing Burke and also the Obama administration's Amanda Dory, Deputy Assistant Secretary for Strategy at the Department of Defense, about whether this new announcement of the sweltering skies was really about politics.

In response, Dory shared a story about a friend of hers in the Air Force who ended up in a class 2 hurricane, perilous for his a small craft, because the absence of hurricanes in that region since the mid-nineteenth century meant no one on the ground even checked to warn him.

Same moral of the story: if her pal in the Air Force almost had something bad happen because of weather expectations, then, gosh, the arctic ice cap melting matters.

I'd never heard of these folks or groups before, but their presence in the government and on the air waves is no accident. Third Way's website describes its activities as "products." Its About section states Third Way is the "leading think tank of the moderate wing of the progressive movement. We work with elected officials, candidates, and advocates to develop and advance the next generation of moderate policy ideas."

The Twitter version: we don't know who we are and we stand for nothing.

Tonight's radio segment fits a disturbing pattern in the Obama administration's militarization and "national securitization" of public needs that is not driven by genuine security needs -- e.g., for universal health care and public transportation -- or paranoid nationalism, and is not even genuinely neoliberal, but is the ideological equivalent of a kleptocracy, an unprincipled grab for agenda setting without having an actual agenda.

The absence of a functioning democracy today is signaled in economic problems occasioned by massive corruption and just plain stealing -- from Abramoff to Wall Street cronyism -- and not capitalism. Likewise, the absence of a functioning democracy reveals itself in pointless change signaled by belonging to the right clique -- from the New this or that to the Third something or other.

That's why the guy who ran on the platform of Change and Hope is presiding over More of the Same, and Then Some.

Where is the hope if the First Lady's big commitment is to military families instead of poor families? If education funding for research under the stimulus package is ramping up Department of Defense projects instead of funding for the arts and humanities? If the government wants to open the coffers to fully fund higher education for people who join the military, and not people who work at nonprofits? If everything from immigration policy to health policy are described as part of our "national security" and not basic human rights?

If the problem with Alaska resembling Hawaii, or is it vice versa, is that nuclear submarines might get dinged by surf boards?

It's a Small World

Today I met Oscar in Reynosa, Mexico at a shelter for migrants, “Nuestra Señora de Guadalupe.” Oscar speaks fabulous English, which isn't surprising. He has been living in the United States since he was 16. His wife is a United States citizen and so are his three young children, Isabella (4), Ethan (3), and Matthew (1). He was just deported yesterday from the Stewart Detention Center even though he has extreme hardship and perhaps other grounds for remaining in the United States. Oscar is the primary source of income for his US citizen family, which has lost phone service since his arrest.

Why was Oscar deported despite a strong case for obtaining legal residence? Well, in addition to the inane laws that prevent movement across borders, the person who made sure even the bad laws were not being applied properly was in this case ... William Cassidy, the same Atlanta judge who deported a U.S. citizen who was born in North Carolina.

I know that Cassidy is not the only judge running a court where respondents do not find justice, and that it really is a coincidence that the folks I keep running into whose due process rights have been trampled on have recently found themselves in Cassidy's court room. (Just to be clear, the purpose of my visit to the shelter was not to find people wrongfully deported. Oscar and I started talking after he heard me asking questions about a U.S. citizen who lives in Georgia and spent some time there after he was illegally deported by the same judge who deported Oscar. Oscar mentioned he also lives in Georgia, or had lived there until yesterday.)

Or maybe not such a coincidence. Cassidy presides over the hearings of the detainees in the Stewart Detention Center in Lumpkin, Georgia. These are the folks who are most likely to have detention itself serve as coercion for them to agree to deportation, even if they may have sound legal grounds for remaining in the United States, as Oscar does.

Oscar has never been convicted of any crime. The only reason he was being deported was a) he did not have a social security card; and b) Cassidy set his bail at $10,000, far too much for his family to pay. Likewise, he was too poor to afford an attorney.

A $10,000 bond for someone with strong ties to the community, no criminal history, and a strong case for establishing legal residence is a miscarriage of justice.

Oscar, who was in detention since May 11, told me he met people who had been there six months before they even had a hearing, and he couldn't bear that.

I asked Oscar if Cassidy reviewed any possible defenses against deportation with him, as he was appearing pro se. Oscar said no, and added that Cassidy does not provide any opportunity for respondents to address him, "He only talks to you. You don't talk to him."

Once again, this is not what the rules require of immigration judges in cases with pro se respondents. The Immigration Judge Benchbook states:
12. Relief from removal and deportation

a. Examine the respondent to determine what remedies against deportation may be available for him or her
b. What is your age?
c. Are you legally married? If so, what is the citizenship status of your spouse? If your spouse is an American citizen or an immigrant, did he or she file visa petition on your behalf?

Oscar told me he was not asked any of these questions, only instructed on the consequences of his deportation.

The shelter only allows people to stay three days. Along with Oscar's wife and children, his father also lives in the United States and his mother is deceased. Tomorrow Oscar takes a bus to his grandmother's home in Guerrero, Mexico.

Oscar was showing me some of his legal documents and I noticed that on the other side he had made some gorgeous drawings. The one he is holding is of the bars that keep him locked away from his wife, Kimberly, whose name is represented by the K in the center.

UPDATE 6-26-09: I will write more about the circumstances of Oscar's detention after I learn more because it is possible that the police acted unlawfully.

U.S. Citizen Obtains His "Alien" File: Record of Government Misconduct

Today Mark Lyttle, 31, a U.S. citizen who was kidnapped and rendered stateless by numerous government agencies as part of his illegal deportation to Mexico, obtained a copy of his file from the Atlanta Immigration Court. (See Atlanta Immigration Court for background.)

Mark's file includes many of the documents from Immigration and Customs Enforcement (ICE) that resulted in his deportation. During our time together in the last couple of days Mark also shed new light on the ignorant, racist, bureaucrats who did this to him, as well as his experience abroad. He walked about 200 miles in El Salvador, drinking leftover sodas on the roadside because he remembered his brother in the army told him how important it was to stay hydrated.

Mark is very resourceful about certain things and much less so about others. He's also very open and thoughtful. It's been fun hanging out with him.

HIGHLIGHTS FROM MARK'S "ALIEN" FILE AND CONVERSATIONS
1) Mark thinks that his problems started at the Neuse (pronounced NOOSE) Correctional Institute in Goldsboro, North Carolina at the end of August, 2008,when he met with a social worker doing a standard intake diagnostic interview. Mark said, "She said, 'We're curious about the name 'José' because it's a Hispanic name." Mark said she had said something in the computer attributed this name to his father. Mark's adoptive father's name was Thomas Lyttle, now deceased, and Mark's biological father's name is equally Anglo-sounding and remote from "José."

Mark replied, "My name is Mark Daniel Lyttle. I don't have a Hispanic name." The social worker told him, "'We're going to check that out. We're going to contact Homeland Security.' I said, 'Go ahead. I'm going to contact my family so I can protect myself and make sure precautions are taken.'" He said he was puzzled because, "They had my social security number; that's the second time I was there. They didn't do that the first time I was there, five months prior."

(As far as I understand, Mark's criminal record, including the two violations Immigration Judge-For-Now William Cassidy, see previous posts, mentions in his deportation order, all stem from his time in mental institutions and halfway homes. His mother, Jeanne Lyttle, a health care professional, told me that the staff would secretly tell her that the employees would regularly provoke Mark and other patients. After the patients physically responded, the staff would press criminal charges.)

The social worker at Neuse asked Mark to sign a document. Mark refused and she said that his signature was not needed for the referral to ICE. Shortly after that he was interviewed by the ICE agent who told him his name was "Jose Thomas" (sic).

Mark's family had moved outside the state since he was incarcerated; he couldn't find them and they couldn't find him.

2) Mark's Notice to Appear was issued on November 5, 2008, two days after Mark had signed a sworn statement that he was a U.S. citizen. The Notice to Appear states, "you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." There is no evidence provided to substantiate the allegation, just the charge.

The form also states that he is deportable because of criminal convictions.

It was signed by Tracy Moten at the Stewart Detention Center in Lumpkin, GA, where Mark was held. Moten is a Supervisory Detention & Deportation Officer, and another form indicates she was the examining officer. Mark told everyone he met he was a U.S. citizen, so presumably that includes Moten.

3) A longer document, the "Record of Deportable/Inadmissible Alien" (I213) also was prepared on 11/5/08 and is the document referenced by Cassidy. This document states in capital letters:

"SUBJECT CLAIMS TO HAVE BEEN BORN IN THE UNITED STATES BUT DOES NOT POSSES [SIC] ANY DOCUMENTATION TO SUPPORT HIS CLAIM."

Mark did not have a passport and he did not bring his birth certificate with him to prison. Mark's family had moved since he had been incarcerated. He told everyone in ICE, as well as Cassidy, that his brothers were in the military and they could find them if they tried, a statement that was verified when the U.S. Embassy in Guatemala City located Mark's brother Tommy at Fort Campbell over four months later. It took them 45 minutes, Mark said.

The I213 also states: "Subject claimed during interview questioning that he has a bipolar mental illness condition."

According to ICE's own record, they had in custody a mentally ill individual who claimed to be born in the United States, and the only evidence they had to prove otherwise was a single coerced statement signed by Mark. This occurred in September, 2008, while he was being badgered by the ICE agent in Neuse -- as I reported earlier, Mark was given a statement indicating he was Jose Thomas and told he had to sign it. He signed it: "Mark Daniel Lyttle."

All of the documents in his record are signed either "Mark Lyttle" or "Mark Daniel Lyttle."

4) The I213, which Cassidy used for the deportation, is demonstrably inconsistent. It documents government employees' stupidity and reckless disregard for human dignity. It does not document Mark's alienage.

The author of this bizarre document is David Collado, an ICE Deportation Officer in Atlanta.

-Under Father's Name, Nationality, it says: "Nationality: MEXICO LYTTLE, Thomas" but of course Thomas Lyttle, Mark's adoptive father, was not born in Mexico AND the original document alleging Mark's alienage said his father's name was Jose Thomas.

-Under Mother's Name, Nationality, it says, "Nationality: MEXICO LYTTLE, Jennie." Mark's mother's name is Jeanne; she was born in Ireland; and the original document on which ICE had issued Mark's order of removal stated that Mark's mother's name was "Maria Thomas."

When Jeanne, Mark's mother, read this part of the document, she said, "I laughed. I didn't know I was born in Mexico."

-Under criminal record it says, "None Known" but it also says that his status when found was "IN INSTITUTION" and he was "encountered while incarcerated at Neuse."

-It uses the name "Mark Daniel Lyttle" but the sworn statement of the ICE agent in Neuse from September says his true name is "Jose Thomas" and "Mark Daniel Lyttle" is an alias.

MARK RETURNS TO THE SCENE OF CASSIDY'S CRIME
I was curious about this guy Cassidy who deported at least one U.S. citizen and who was spreading false rumors about Mark and others to his superiors in Washington and the immigration legal community, and so was Mark. We wanted to take a look at him and also see if Mark could identify the translator who could verify Mark's exchange with Cassidy that Cassidy has denied occurred. While we were waiting for Mark's record, I looked at the Atlanta court schedule. Cassidy's schedule was missing. The clerk told me, "He called in sick this morning."

Mark said, "Is the sickness fear? Where's the doctor's report?" Mark said this because the rules for obtaining a copy of an immigration file require advance notice of the Court as to the date on which one would be picking it up.

Mark's letter to Cynthia Long, the Atlanta Court administrator, stated he would be there with me on Monday, June 21, the same morning Cassidy called in sick.

If reporters want to follow up, other names of individuals involved with Marks' case are:

Steven [sp?] Fuller. On the hearing recording for December 9, 2009 Cassidy says, "The government is represented by Steven [sp?] Fuller."

Nicole F. Kelly, Assistant Chief Counsel, filed a "Motion to Rescind and Vacate Final Order" on April 24, 2008 after Mark returned to the U.S. and was arrested by ICE despite possessing a U.S. passport.

Jill Jensen, Assistant Chief Counsel filed "Motion to Terminate Proceedings" on behalf of the Department of Homeland Security on April 28, 2009 stating that "the NTA was improvidently issued."

Both of their motions exclude mention of evidence before Mark's deportation indicating Mark was a U.S. citizen and both motions exclude mention of blatant errors in the charging documents.

The DHS attorneys are in the same building that houses the immigration courts at 180 Spring Street SW.

Judge Sease, also at the Atlanta Immigration Court, used to be an ICE attorney and in that capacity was engaged in ex parte communications with Judge Cassidy about ten years ago that were the subject of a complaint against Cassidy, as noted in a comment on the post below.

Mark's attorney, Neil Rambana, filed a FOIA request for Mark's file and has not received a copy. He also tried to pick one up at the Atlanta Court several weeks ago -- this is noted in the file copy Mark obtained -- and was told the file was not there and they did not know where it was.

Judge Who Deports U.S. Citizen Has Heavy Finger on the Stop Button: Digital Audio Recording of Mark Lyttle's Hearing Has Long Gaps

On December 9, 2008 Immigration Judge-For-Now William Cassidy signed an order deporting Mark Lyttle to Mexico. Mark is a U.S. citizen who was born in the United States, in Salisbury, North Carolina, and who twice informed the judge of this fact. Mark does not speak a word of Spanish.

There are four actions Cassidy has undertaken that go far beyond a moment's poor judgment and that I believe disqualify him holding the title of immigration judge. I have left messages with various staff at the Atlanta Immigration Court requesting an interview with Cassidy and he has not replied, although he has been talking about details of Mark's case with attorneys who do not represent Mark in an effort to gain their sympathy. I believe Cassidy is not talking to me because he knows I cannot be manipulated by him, and not because he is averse to speaking about his hearings to third parties.

1) By Cassidy's own admission, conveyed by colleagues reporting on their conversations with him, Cassidy was aware that Mark was diagnosed as bipolar and that Mark had signed a sworn statement indicating he was born in the United States.

A nationally prominent immigration attorney who deals with Cassidy regularly, and was attempting to excuse Cassidy's actions, sent the following message to a listserve of other immigration attorneys:

I have talked to Cassidy about this case ... The I-213, is written up and says that he and his parents are all born in Mexico, notes he claims to be bipolar, and then notes that he says he was born in South Carolina [sic--Mark was born in North Carolina]."

The attorney then states, "There is nothing on the 4 minute tape in which Little says: "Hey, stop, I am a US Citizen."

The attorney is referring to a portion of a Digital Audio Recording (DAR) produced by immigration judges as an official record of the hearing. The DARs are supposed to be inclusive of the entire hearing unless otherwise indicated. According to the Immigration Court Practice Manual:

The entire hearing is recorded except for those occasions when the Immigration Judge authorizes an off-the-record discussion. On those occasions, the results of the off- the-record discussion are summarized by the Immigration Judge on the record. The Immigration Judge asks the parties if the summary is true and complete, and the parties are given the opportunity to add to or amend the summary, as appropriate. Parties should request such a summary from the Immigration Judge, if the Immigration Judge does not offer one.

According to the 15 minute DAR for the hearing sent to Mark's attorney, Neil Rambana, there is no discussion at all of Mark's U.S. citizenship status. This is damning for Cassidy for two reasons.

THE DOG THAT DIDN'T BARK
The immigration judge benchbook contains extensive instructions for how immigration judges should engage respondents who do not have legal counsel and who have possible citizenship defenses. These include a series of questions that the judge supposed to ask the respondent about his parents, his place of birth, age, and an instruction that those who may be U.S. citizens should be given N600 forms so they may apply for a certificate of U.S. citizenship. Crucially, the judge is instructed to affirmatively explore possible defenses against deportation with pro se respondents: "Examine the respondent to determine what remedies against deportation may be available for him or her."

In short, the DAR silence on Mark's U.S. citizenship status, in light of Cassidy's alleged concession that he understood Mark had submitted a sworn statement that he was born in the United States, means that the DAR demonstrates Cassidy's failure to fulfill his professional responsibilities. Cassidy's own statements to his colleagues suggests that the DAR should have included an extensive exchange between Cassidy and Mark regarding Mark's U.S. citizenship, not silence on this matter.

I'm also not sure how anyone would find a statement that a respondent claims to be bipolar is grounds for supporting a deportation order, and not ordering a psychiatric evaluation and further inquiry into Mark's mental competence regarding his other statements.

In addition, the DAR reveals several other inconsistencies between how Cassidy ran the Master Calendar hearing on December 9, 2008 and how judges who follow the rules run their hearings. These range from him not naming the translator to improperly turning on and off the recording device without summarizing the events "off the record" to reading instructions to the respondents in a voice that is too fast to be properly understood in English, and without allowing time for the translator to translate. You can go through the Master Calendar immigration judge benchbook checklist and compare that with the DAR and most of what's supposed to be there is missing, including the individual interviews with the respondents.


2) The DAR was made in a manner entirely inconsistent with the EOIR rules. It is not a complete record and its omissions are not properly noted. This is evident from the DAR itself. There is at least one point at which it quite obviously goes off and on and picks up in an entirely new sentence with no note made of the stoppage. Moreover, at 15 minutes for 30 respondents, it is far too short to be a complete record.

According to a court watcher who has attended Cassidy's court, this is par for the course: "He does not say whether he's recording or not recording. I know Judge Sease says, 'This is off the record,' and then turns it back it on." The court watcher said it was impossible to tell from watching when the recorder was off or on. Another court watcher told me that Cassidy will say something is off the record but only when he physically leaves the room during a conference between an attorney (who is in the courtroom in Atlanta) and the client (at the Stewart Detention Center). This court watcher did not recall other occasions in which the judge said events were on and off the record.

A hearing for 30 people is going to take much longer than 15 minutes. Either the DAR that was sent to Mark's attorney, Neil Rambana, was not the entire DAR, or, Cassidy only recorded the formal portions at the hearing's beginning roll call and the final formal orders at the end. Both possibilities call into question Cassidy's account of the events that day.

3) Cassidy made statements to the Atlanta immigration legal community and to his superiors at the EOIR about the events in the courtroom the day he deported Mark that are flatly contradicted by Mark and for which Mark produced contemporaneous documentary evidence that supports Mark's account. (The manner in which Cassidy made these statements to his superiors is something I still am not at liberty to reveal, but that will change shortly; at that point I look forward to posting on the evil of banality.)

According to Mark, he told Cassidy he was a U.S. citizen not once, but twice. Mark said that after their names were read, Cassidy interviewed each of the respondents. I asked him how long the exchanges took and he said it depended on whether the respondent was challenging the deportation. None of these exchanges are on the DAR, including TWO in which the respondents had defenses of U.S. citizenship. Mark said,
"One guy was detained for a very long time. I heard his lawyer. She was finding out how long he was detained and Cassidy said, 'Send me whatever you have.' They were basically trying to get him out. They had too many American documents that he was a U.S. citizen." Mark thought this respondent had been in detention for more than two years.

He also told me about another U.S. citizen, "a guy with dreds from Jamaica. He spoke a lot of English." Mark said that ICE lost his paperwork and they had to release him, "He was American."

When it was Mark's turn he felt discouraged and intimidated and in his first statement told Cassidy, "I'm an American. I was born and raised here, but you can deport me if you like." Mark said there were two groups--those who were appealing and those who had agreed to be deported, and that Mark initially agreed to be in the latter group.

However, as he was listening to people talk and the hearing progressed, Mark changed his mind and told a guard he had something else to say, "I need to speak to the judge." The guard told him to wait until everybody was done.

I asked for more details on how the guard did this and Mark said there was a "very low door" and that "the guard had to go up to the judge on the TV, and he said I had another comment to make." That's when Mark told Cassidy the narrative about his U.S. citizenship I reported on previous occasions. Mark said that Cassidy told him he had to "go by the statement of a sworn ICE agent." Mark asked to see a copy of what the judge was examining and was upset that this did not occur.

Mark had never been in an immigration court before the day he met Cassidy and would be incapable of inventing the detailed narrative he gave me; also, as opposed to Cassidy, Mark has no incentive to lie since ICE had noted Mark's claims to U.S. citizenship and some government agency, be it ICE, the prison, Stewart, and the immigration judge, was responsible for investigating their validity, even if Mark didn't say a word that day.

Finally, Mark filed written grievances on ICE forms against Cassidy at the time of the deportation order and in the subsequent days before he was sent to Mexico, because Cassidy never sent Mark the paperwork he promised he would. These grievances should be at the Stewart Detention Center and hopefully Mark and his attorneys will obtain them and this will further substantiate his narrative.

4) Well there is a number four and it's a doozy, so stay tuned. Hopefully by the time that is resolved Cassidy will be profusely apologizing to Mark and the immigration law community in Atlanta.


WHAT DOES EOIR HAVE TO SAY ABOUT THE JUDGE WHO DEPORTED A MAN WHO WAS BORN IN NORTH CAROLINA?

EOIR Counsel for Legislative and Public Affairs Fatimah Mateen told me Monday that "someone" whose name she could not recall decided EOIR could not comment on Lyttle's case and that she would consult her notes in order to tell me who this was; she never did tell me this, but I learned today that "someone" was in fact Mateen herself.

EOIR's Mateen's obfuscation on this and other matters is a funny echo chamber of Cassidy's own efforts to avoid transparency, accountability, and to shift responsibility elsewhere. Agency staff lead by example and the EOIR Counsel has set a tone Cassidy and others seem happy to follow.

DOJ Public Affairs Officer Charles Miller, who is obtaining his information from Mateen and EOIR's Public Affairs Officer Elaine Komis, told me that they were not commenting on Cassidy's conduct because of "privacy concerns" for Mark Lyttle, which of course makes no sense.

One needs to have no information whatsoever about Mark to be instructed on whether the EOIR believes that Cassidy recorded the hearing properly, was being disciplined for deporting a U.S. citizen, or to learn the extent of complaints against immigration judges for not recording their hearings-- all of which were questions on which Miller at the DOJ, at the behest of Mateen, would not comment.

UPDATE JUNE 16, 2009: Please see comment submitted by reader on previous misconduct by Cassidy.

EOIR Hiding File for US Citizen Deported by Immigration Judge William Cassidy

On December 9, 2008, Immigration Judge William Cassidy wrongfully deported a man born in North Carolina. He ignored Mark Lyttle's signed and sworn statement that he was a U.S. citizen and his name was Mark Daniel Lyttle. Instead, Judge Cassidy believed an Immigration and Customs Enforcement (ICE) agent's baseless allegation that the man before him was really Jose Thomas, a name that I believe was invented by an ICE agent in North Carolina.

Neil Rambana, based in Tallahassee, is Lyttle's attorney. Yesterday he thought he would take advantage of a trip to the Atlanta immigration courts on behalf of another client and examine Lyttle's "alien" files. (Lyttle is a U.S. citizen, so this nomenclature for his records is an oxymoron.) Lyttle and anyone else in deportation proceedings has two files, one maintained by ICE and another by the Executive Office of Immigration Review.

Federal rules and regulations require EOIR and ICE to give Rambana access to these files. But agencies that deport U.S. citizens may not be so careful or even honest in complying with the law.

Rambana told me that at 10 a.m. yesterday he submitted the form Lyttle signed indicating that Rambana was his attorney. Rambana asked to see Lyttle's file and was rebuffed, "The clerk, Garrett, checked the database and said, 'This file is at the BIA [Bureau of Immigration Appeals].'" Rambana walked away for a moment to think, then returned and said, "There really is no reason for it to be at the BIA. Can you inquire further? I'm perplexed." Elaine Komis, spokesperson for EOIR, and Barbara Gonzalez, spokesperson for ICE both state they show nothing indicating an appeal of Judge Cassidy's April 27, 2009 decision rescinding his 2008 deportation order.

Because the appeal period is 30 days, the case is considered open and the EOIR file should be in Atlanta, as files are held in the courts where the last hearing occurred. Gonzalez confirmed that Lyttle's ICE file is in Atlanta. Rambana said the clerk had no further information, and "no one seemed to know where it was" beyond the unverified record indicating its presence with the BIA. [UPDATE: Rambana's hunch was confirmed. Komis wrote today: "If a case is ongoing at an immigration court, the case file would be at the immigration court."]

The clerk took Rambana's phone number and said he would call once he learned where the file was being held. Over 24 hours later, Rambana has not been notified about the whereabouts of Lyttle's EOIR file. When I called EOIR to ask about this, Komis told me I needed to file a FOIA. A FOIA for learning a file's LOCATION???

(I sent Komis a copy of the ICE waiver Lyttle signed and said that if that were not sufficient to answer questions about the file's location, he could sign another specific to the EOIR; she told me without further explanation that a waiver was not sufficient and I would have to file a FOIA.)

The EOIR is under the jurisdiction of the Department of Justice, run by self-proclaimed Mr. Transparency, Attorney General Eric Holder. This action is another signal that when it comes to the EOIR the Obama administration is more hype than hope.

I asked for the legal justification of requiring a FOIA for information about a file's location, and not its contents, especially since, as I explained to Komis, one needs to know the file's location before filing a FOIA. It may be somewhere in the EOIR, or it may be somewhere else entirely. If it's supposed to be in Atlanta and isn't there, then why believe it's even with the EOIR at all? I am awaiting a response and will update this post if and when that is received. [5/13 UPDATE: This is the response-- "Persons who are not a party to a proceeding before the immigration court must file a FOIA request to access information related to an individual’s record." This is of course not a response to my question about how to file the FOIA if one doesn't know where the file is located.]

Rambana next went to visit the ICE attorneys' office, to see if he could review their file on Mark. He was again rebuffed, "No one would talk to me." They told him he needed to make an advance appointment. "I was most frustrated they would impose that limitation. People travel from all over the country and you cannot expect people to make an appointment and come back with people who don't live in your area. I'm very disturbed by that."

Dan Kowalski, Austin immigration attorney and an expert on immigration court procedures said, "If he has a signed G-28 [the form Rambana presented to the immigration court clerk] he has the right to see the file." [UPDATE 5/13: EOIR Spokesperson Komis wrote today stating: "The Freedom of Information Act authorizes access to an alien’s record," but this is incorrect. Kowalski pointed me to the Immigration Court Practice Manual 12.2: "(A)Inspecting the record. — Parties to an Immigration Court proceeding, and their legal representatives, may inspect the official record of proceedings by prior arrangement with Immigration Court staff. A FOIA request is not required."

Oops.]

The same holds for Rambana's right to have access to his client's ICE records.

Kowalski referred me to 8 CFR 292.4 (b):

Availability of records. During the time a case is pending, and except as otherwise provided in §103.2(b) of this chapter, a party to a proceeding or his attorney or representative shall be permitted to examine the record of proceeding in a Service office. He may, in conformity with §103.10 of this chapter, obtain copies of Service records or information therefrom and copies of documents or transcripts of evidence furnished by him. Upon request, he may in addition, be loaned a copy of the testimony and exhibits contained in the record of proceeding upon giving his receipt for such copies and pledging that it will be surrendered upon final disposition of the case or upon demand. If extra copies of exhibits do not exist, they shall not be furnished free on loan; however, they shall be made available for copying or purchase of copies as provided in §103.10 of this chapter.

Cynthia Long, Atlanta Immigration Court Supervisor referred my question about the file location to the Public Affairs office in Washington, DC. I told her I was not interested in the file contents, only its location, and that the attorney had not been able to learn this. Her response was not comforting: "Once they locate it, they will contact that person. If the file is here." Meaning what? If EOIR throws the file away is Rambana not notified? If they hide it behind a file cabinet? What if they send the file to Mexico?

Rambana is resisting conspiracy theories but still wonders, "Why are they hiding this file? What's going on? Everything is already on the table. If anything it's to their advantage to make sure that nothing is misinterpreted or miscommunicated, because it will all be there in the file."

[UPDATE, 5/15/09: There has been a new, disturbing twist to the saga of EOIR's actions concerning the deportation of Mark Lyttle that may account for, but not excuse, the EOIR file's absence from the Atlanta court house. (Sorry to be mysterious for now, but within two weeks I can explain.) In the event, if any government agency wants to review an open case file, then it needs to make a copy, not remove the file from its proper place, especially without notifying the attorney. Rambana still has not been contacted by anyone in Atlanta, the BIA, or the EOIR with information on the file's location. The ICE file on Lyttle is in Atlanta and the ICE attorneys have no excuse for not showing this to Rambana when he was there.]

[UPDATE, 5/15/09, I received the following message from Elaine Komis at EOIR:

"Jackie,

EOIR regrets the misunderstanding. When you asked whether there is "a regulation/rule that authorizes attorney access to EOIR's alien files," EOIR's response was "the Freedom of Information Act authorizes access to an alien's record" because your question referred to attorneys, not attorneys of record.

EOIR's subsequent response to you clarified that according to Chapter 12.2 of EOIR's Immigration Court Practice Manual, "Parties to an immigration court proceeding, and their legal representatives, may inspect the official record of proceedings by prior arrangement with immigration court staff. A FOIA request is not required."

Please refer any additional questions to the Department of Justice's Public Affairs Office at (202) 514-2007.

Elaine"

I had thought that the context of my phone call and email inquiry --asking why Rambana was not allowed to see his client's file maintained by the EOIR -- was sufficiently clear but apparently I was not specific enough.

UPDATE, 5/19/09: Received an email today from Neil Rambana indicating that the digital recording arrived in yesterday's mail. There is a related and pending matter that prevents me from saying more at this point but there is a lot more information forthcoming and it reflects extremely poorly on Mr. William Cassidy and the EOIR.

Houston ICE Attorney Calls Due Process for U.S. Citizen "Idiotic" - Seeks Reinstatement of Removal of Texas Mother

[5/13/09: Cerna's relatives just located her parents' marriage certificate at a town hall in Nuevo Laredo, MX; this helps prove her U.S. citizenship. Meanwhile, Cerna is threatened with detention at any moment.]
The Immigration and Customs Enforcement agency (ICE) owes another apology to a probable U.S. citizen, Julia Cerna, 42, whose due process rights and physical security ICE Assistant Chief Counsel Tracy Hamby jeopardized Wednesday, May 6, 2009 in a Houston immigration court.

ICE in Washington, D.C. had been working with Cerna to protect her from ICE custody as she was documenting her claim to U.S. citizenship, but Hamby apparently found this offensive and made an end-run around Cerna's Constitutional rights and the interests of justice.

Here's an excerpt from a message Cerna's immigration attorney in Houston, Amy Tehauno, sent Thursday morning to an ICE public affairs spokesperson and copied to me, describing the events in the immigration court Wednesday:

At the first Master Calendar hearing in Houston before Judge Clarease Rankin-Yates yesterday, ICE Assistant Chief Counsel Mr. Tracy Hamby appeared for the government. He immediately moved to terminate the proceedings, which was unopposed by the Respondent as we believed that it was appropriate to permit Mrs. Cerna to apply for her Certificate of Citizenship and U.S. passport administratively/affirmatively. Mr. Hamby's words were something to the effect that the Immigration Court was an inappropriate forum to make a citizenship claim, a statement with which I agree.

However, Mr. Hamby then indicated that he intends to send the file to Detention and Removal to act on the old expedited removal/order reinstatement, and recommended that we file the N-600 [application for a Certificate of Citizenship] as soon as possible so that it will be on file when, presumably, my client is detained again.

I believe that the exact description Mr. Hamby gave in court of the actions of ICE in attempting to accord Mrs. Cerna all due process of law in presenting her U.S. citizenship as a defense to removal (an opportunity that she was not previously afforded) was "idiotic." Mr. Hamby did not consult with his office in moving to terminate and taking on this decision.

Hamby did not reply to two voice mail messages requesting comment on this incident in immigration court, part of a public hearing.

Hamby understood that an ICE trial attorney and immigration judge in Oakdale, Louisiana had allowed Cerna to be released on $5,000 bail while she was tracking down the documents for proving her U.S. citizenship and thought this idiotic. Exercising legal discretion over a possibly unlawful action -- ICE arrest or deportation of a U.S. citizen -- Hamby terminated the hearing only to reinstate an earlier expedited removal order issued in 2000 by a border officer (not a judge), issued when Cerna did not know her father's birth in Alice, Texas established grounds for her being a U.S. citizen and signed a statement that she was not a U.S. citizen. ICE interview notes also indicate she stated her father was born in Alice, Texas. The agent should have informed Cerna of this being grounds for investigating a claim to U.S. citizenship.

Before Cerna has an opportunity to document her citizenship, Hamby is authorizing ICE to come to her home, arrest her, and stick her back into a detention center. (Tehauno explained that they have a number of documents but need time for further research of records from the 1940s to 1960s before submitting the application.)

Cerna is fortunate because Tehauno has enlisted the support of a graduate student in history to find the necessary documents, but Tehauno is concerned more generally about acquired and derived citizenship cases for U.S. citizens who are poor and do not have access to an attorney or investigator.

BACKGROUND
Julia Cerna, 42, is raising two teenage sons in Magnolia, Texas, a suburb of Houston where she's lived for 20 years. She also has two daughters, in their twenties, one of whom had to take charge of the household while her mother was in detention last year. According to Tehauno, who is representing Cerna for a low fee to be paid after the bail is returned, Cerna has no criminal convictions. The only reason she is about to be deported is that she lives in a country in which citizenship rules are complicated and ideas of what counts as "U.S.-American" racialized as White, so that sometimes people born U.S. citizens abroad do not know they are U.S. citizens.

For instance, someone called me yesterday who applied for a U.S. Certificate of Citizenship in 2007 only because he had a friend from Europe whose parent was born in the U.S. and was applying for a Certificate of Citizenship. Because the man who called yesterday was of Mexican descent and lives in a country where the political if not legal message is that real U.S. citizens can never be born in Mexico, it never even occurred to him that he was a U.S. citizen at birth.

Legally, however, U.S. citizenship is predicated on meeting the criteria for U.S. citizenship, not encyclopedic knowledge of citizenship laws that even trained border agents and ICE attorneys do not understand.

Out of frustration that her client who might well be a U.S. citizen was in ICE custody, Tehauno said she "pulled an email address for an ICE press person giving quotes to press saying 'We don't deport U.S. citizens. She [Ernestine Fobbs, ICE public affairs] was great. She called me within an hour and I explained the situation to her."

ICE sent two agents to interview Cerna in an Alabama prison. Cerna was transferred to Oakdale, Louisiana where an immigration judge bonded her out of detention for $5,000, changed the venue for the hearing to Houston, near Cerna's home, and the ICE trial attorney waived appeal. These decisions are a good indication that they believed Cerna had a viable claim to U.S. citizenship and did not want a U.S. citizen in an ICE detention center.

But then came yesterday's hearing. Tehauno concluded this morning's message to Ernestine Fobbs, ICE Public Affairs, as follows:

I truly appreciate your assistance, and the considered and thoughtful actions of ICE in Alabama and ICE Assistant Chief Counsel in Oakdale, Louisiana. All of the actions from your office and agency through yesterday indicated a genuine concern that our government take every precaution not to deport U.S. citizens, as continues to occur in cases such as that of Mark Lyttle. However, Mr. Hamby's intended course of action indicates a lack of consistency within the agency in that regard. We will not oppose a motion to reopen the proceedings before Judge Rankin-Yates, should ICE Assistant Chief Counsel in Houston prefer to handle this through the immigration courts. Thank you again for any assistance that you may be able to render.

Fobbs has not replied to Tehauno's email message about Hamby's action undermining the decisions of the immigration judge and ICE Assistant Chief Counsel in Oakdale, or to phone or email messages from me.

Tehauno said: "There should be onus on the government to make sure that people are not citizens of the country. Before they deport people and ruin their lives and lock them up in prison they should absolutely know they're not citizens." Tehauno was disturbed by the harsh and arbitrary consequences of the discretion given to ICE attorneys, "It's happening a lot and there's no one in the government accountable. There 's no coherent government program, and then a case lands on the desk of someone" who characterizes due process rights as idiotic. (Well, that last phrase is a loose paraphrase of what Tehauno said...)

Customs and Border Protection Destroys Birth Certificates of Mexican-American U.S.-born Teenage Boys

Here are descriptions of two previously unpublished accounts of U.S.-born Mexican-American teenagers who had their birth certificates ripped up by Customs and Border Patrol agents. I have information on other similar cases, but only time to write up the details of these two, along with summaries and links to two other recent cases published elsewhere.

Just to be clear, a national identity card doesn't solve these problems: in many cases of U.S. citizens deported ICE or Customs and Border Protection doesn't even check the digital files that have evidence matching the identity cards presented by the individual with the information in their databases-- as was the case at several points for Mark Lyttle. If no one bothers to check that a passport (or national identity card) matches the information in a law enforcement database-- as should happen when a U.S. citizen objects to having his proper identity disregarded by an agent or an immigration judge -- then having a national card does nothing and is no improvement over our current system.

Mexican-Americans with Birth Certificates Border Patrol Destroys or Ignores
Case 1. Mario, 17, was born in a Colorado hospital in the late 1980s and I've seen his birth certificate and hospital records.

Mario's mother is a U.S. citizen and his father Mexican. When Mario was a toddler his father and mother separated and Mario's father brought him to Mexico. His father's plan was to raise Mario, and then he would return to the United States. When Mario was 17 he decided it was time to "go back to the United States and claim his destiny," according to an individual familiar with this case. Mario had uncles in Tucson who visited Mario frequently in Mexico. He was especially interested in finding his mother. A birth certificate is a valid form of identification for entering the United States, and Mario thought he was all set. (Mario couldn't obtain a U.S. passport from Mexico because if you're 17 or under, that requires the presence of both legal parents.)

In early 2007, when Mario tried to return through Nogales, Arizona the Customs and Border Patrol agent, the attorney said, "tore it up on the spot. They told him, 'It's not real. Go away, kid, this is fraud.' There goes your Colorado birth certificate. Go away, have a nice day." Mario was upset and insisted he was a U.S. citizen. "They told him that if he says he's Mexican he can leave, but if he keeps saying he's a citizen he'll be detained at the Nogales border patrol station and arrested." He signed and returned to Mexico.

Because of worries about identity theft he was not able to send for another copy of his birth certificate. In May 2007, Mario decided to take his chances by crossing without inspection and was apprehended by the Nogales Border Patrol. He made a sworn statement that he's a U.S. citizen and is taken into detention for deportation proceedings, where he can make his case before a judge. Mario, the attorney said, "denied he was a Mexican alien, but they whipped this thing out," according to the attorney, and said, "You said you were a Mexican. Here's the proof. You were removed as a Mexican."

The Immigration Judge says the initial sworn statement of Mexican citizenship is sufficient to shift the burden onto Mario to prove he really is a U.S. citizen. Even granting the absurdity of a Mario's coerced statement being used against him, Mario met that burden. His file includes Medicaid records of his birth and infant care, a copy of the birth certificate, and the Colorado hospital records, including the Apgar test (taken one minute and five minutes after birth). The attorney continued, "The judge says, 'The records don't show he was born at the hospital. The records only show he was treated at the hospital." Oh, and Mario had obtained a childhood photo from his uncles in Tucson, from when they visited Mario in Mexico, in which Mario's about 8 and holding THE SAME BIRTH CERTIFICATE in his file. (The family had the photo enlarged and it's very clear.)

The attorney also pointed out that the entire proceeding was improper because ICE never conducted an initial interview or investigation of his claim to U.S. citizenship, as required by the deportation and removal regulations, but, the attorney said, "They didn't do that. They just NTA'd him." (A Notice to Appear is a charging document that requires an interview by an ICE agent.)

Mario signed the removal order and is going to try to obtain a passport or file for a from Mexico, but it's not going to be easy because a passport requires U.S. photo identification and other documents that someone in Mexico cannot obtain. Also, the form for filing for U.S. Certificates of Citizenship (N-600) states it is for people born abroad, the premise being that if you have a U.S. birth certificate that is proof of citizenship.

Case 2.
An attorney who works for a federal defender's office told me about Ricardo, 16, who was living in Phoenix and drove to Nogales so he could drink. (These events transpired roughly between 2002-2006.) On returning to the United States, Ricardo presented his Los Angeles County birth certificate and Arizona driver's license. The attorney said "The border patrol agent kept trying to get him to admit he was Mexican and it was a fake certificate: 'You're a punk, you're stupid, and I'm going to do you a favor,' and the border patrol rips up Ricardo's birth certificate." The agent tells Ricardo that he saved him from a charge of presenting false documents and says that if Ricardo doesn't sign a statement saying he's Mexican, then he's going to prison for a year. Ricardo signed."

I asked the attorney why Ricardo signed the false statement, although the absence of an attorney and being a minor are already grounds for concern. He replied, "Nobody believes you, and they browbeat you, 'Stop lying, you're just making it worse.'" Ricardo went to court but didn't say anything. I asked why he didn't explain his situation to the immigration judge and the attorney, who had watched a video tape of the hearing told me, "A lot of these judges don't listen to shit anybody says. This judge never even looked up from the paper." (Incidentally, Ricardo didn't miscalculate: Mark Lyttle told the judge he was U.S. citizen and was still deported.)

Ricardo, born in Los Angeles, was deported twice, each time signing a statement that he was a Mexican national. The attorney said, "It was the path of least resistance. The third time he was looking at six months to a year so he said, 'That's crazy. I'm a U.S.. citizen.' And they say, you're not a U.S. citizen, asshole, you've been deported a couple of times." That's when the attorney's brought in, to defend Ricardo against the charge of Illegal Re-entry. The attorney introduces Ricardo's birth certificate as evidence and the prosecutor moves to dismiss the charge, but then the attorney paraphrase the prosecutor's next statement, "Don't think I'm being a nice guy. He's still guilty of Illegal Entry, anyone entering without inspection." (Ricardo was found not guilty.)

Case 3.
The following is from an ACLU-Southern California Press Release, issued on October 29, 2008:

“If ever there was evidence of the fundamental flaws in our immigration system, it is the fact that a U.S. citizen was deported twice and denied entry into the United States on numerous occasions without any due process of law,” said Jennie Pasquarella, staff attorney for the ACLU/SC. “ICE officials repeatedly ignored his certified birth certificate, which they could easily have corroborated, and instead simply refused to believe him. It is inconceivable that this would have happened were he not Latino.”

Olivares was born in the Los Angeles area, and had never lived outside the United States until he was forced to live in Mexico after ICE deported him in 2007 and refused to allow him to re-enter. But his ordeal began in 2000, when border agents questioned the veracity of his birth certificate and whether it belonged to him when he was returning into the United States at the Tijuana border crossing. The agents refused to let him enter his own country. A week later, however, Olivares’ mother met him at the border crossing with a certified copy of his birth certificate, and Olivares and his mother re-entered the United States without incident.

In 2007, while Olivares was serving time in state prison, agents from the Department of Homeland Security approached him and told him he was a Mexican citizen and would be deported. Olivares insisted that he was a U.S. citizen, but eventually – not fully understanding his rights as an American citizen – he was coerced into signing papers that were never explained to him and was deported to Mexico.

He then attempted to cross back into the United States, but border guards refused to let him enter. He felt he had no choice other than to live for a time with his mother’s family in Jalisco. But in June 2008, upon learning that his father in Los Angeles was gravely ill, Olivares again tried to cross the border legally, presenting a certified copy of his birth certificate. After being rebuffed, he crossed illegally, but was picked up by the U.S. Border Patrol. On September 2, 2008, he was deported for a second time to Mexico, on the day his father died.

In September, Olivares – accompanied by his mother -- tried yet again to re-enter the United States legally from Tijuana. Once again, immigration officials rejected his birth certificate. However, this time he refused to sign his name to the papers foisted upon him and demanded to see a judge. As a result, ICE put Olivares in removal proceedings and detained him at the Otay Mesa Immigration Detention facility in San Diego. The family then contacted the Coalition for Human Immigrants’ Rights of Los Angeles, which in turn contacted the ACLU/SC. On October 9, ACLU/SC staff attorney Jennie Pasquarella advised ICE that it had no authority to detain Olivares because he was a U.S. citizen, and presented his birth certificate and other documentation demonstrating his citizenship. He was released later that day.

“There’s something fundamentally wrong with the system if border guards can effectively deprive you of your citizenship by simply disregarding a valid birth certificate,” said Pasquarella. “ICE officials obviously used race and ethnicity as a basis for enforcing our nation’s immigration laws, rather than taking a few minutes to verify Mr. Olivares’ legal status.”

Case 4.
In a detailed article by Sandra Hernanez appearing in the Los Angeles Daily Journal on December 31, 2008 Jose Ledesma, who estimates he was deported about 15 times despite presenting a U.S. birth certificate, says,

"I think the only reason I got out is immigration saw the newspaper stuff and didn't want to keep me in there after it was public," he said.
"I think I might have gotten out a lot faster if I'd had a lawyer," Ledesma said. "I know my rights, but in court you don't really understand all the legal stuff or they just don't believe you."

This does seem to be a pattern: when the media focus attention on cases ICE responds but absent that attention even attorneys have a problem receiving due process protections for their clients.

Another interesting point Ledesma mentions is that during his hearing before an immigration judge, when Ledesma brings up his claim to U.S. citizenship, the judge "turned off the tape recorder and began talking to the government attorney and then turned it back on and told me I had 15 days to provide facts to show I was a citizen."

So the immigration courts won't let people in (see earlier postings tagged EOIR) and immigration judges are having secret exchanges with the government attorneys?!

Wow.

How many cases of U.S. citizens deported or detained, how many outrageous illegal actions by ICE, Customs and Border Protection, and the immigration judges before we stop spending money on sending out people because of the accidents of borders and birth--and the inherent inability to get this stuff right in programs run by dumb Americans--and start spending that money on health care, education, transportation and other real needs? (Spending billions of dollars because of an unfounded anxiety that open borders cost money is as rational as buying a $1 billion safe to protect a dime store flag.)

The attorney who told me about Ricardo said, "This cat and mouse shit hurts people, it gets people killed, it teaches agents to treat people like animals." He described a chat site popular with border agents that refers to immigrants as "tonks." He asked a CPB agent what that meant and was told, "'That's the sound it make when you hit someone over the head with an aluminum flashlight. Aluminum's flexible and the hair covers the injury.' That's a culture created by a cat and mouse chase game. Who loses? In Tucson, I watch kids getting picked up at a downtown bus center by border patrol and hauled off, kids I doubt were illegal."

We know that border enforcement is systematically hurting people innocent by law and common sense; we know that it is costing billions of dollars; and we have no evidence that free movement harms rather than helps the overall economy. And we know that ending border restrictions will increase household and family stability.

Our country is in the grip of a profound borderline personality disorder. The psychotic effort to separate an idealized U.S.-American "good" citizen from the racialized "bad" Mexican is no different, legally, from the 1933 Nuremburg laws, where officials held similar debates about where to draw the arbirary line of Jewish/German ancestry to make sure that Germans wouldn't be deported. The Nazis had to decide on degrees of descent, not to punish Germans who happened to have a Jewish ... great-great grand parent, great-grandparent, grandparent, parent. How to know when one is wrongfully punishing good Germans and not appropriately deporting bad Jews? This particular Nazi legal question is exactly the same as the ones being asked every day in U.S. immigration courts. Are you a real U.S. natural-born citizen if you only have documents showing your father worked here 9 years after 1950? 10 years? If your mother was born in the United States but not your father? If your father's name does not appear on your birth certificate? If you don't have money for an attorney and private investigator to track down documents?

A sane people does not ask this question.

Fortunately, there are many people who are rational, compassionate adults and understand this. The nonprofit attorneys who spend their time in low-paying positions with impossible caseloads, the private immigration attorneys who take tricky pro bono cases, the government employees who are speaking up when they can, the journalists who take patience to describe complicated cases and not just shocking are doing amazing work and deserve as much attention as the trouble caused by our government. It is important to know about government mischief but it is a mistake, one I am guilty of, to be preoccupied by this to the exclusion of the good work done by so many, one for which I will be making amends here. Stay tuned...

Thanks to Dan Kowalski, Austin immigration attorney, for some useful information on the procedures and terminology.

---
Note on image: I realize people have a bad reaction to Nazi allusions. I'm not referring to death camps but the publicly announced deportations preceding 1941 using classifications for determining citizenship the same as the ones being used today. (U.S. foreign embassies on their web pages are suggesting applicants bring DNA samples!) The photo above is a German passport for a Jew issued in 1938, and is from a web page on Holocaust research for which I cannot vouch.

PRI "The World" Story on Illegally Closed Immigration Courts

From PRI "The World":
"Federal regulations on transparency say that US immigration courts must be open to the public. But a California university professor found that's not always the case. Reporter Claudine LoMonaco has the story from Tuscson, Arizona."

Listen here, on PRI "The World," first broadcast on April 29, 2009.

Claudine LoMonaco put together a very impressive piece of radio journalism in which she develops a narrative tying the unlawful ICE detention and deportation of U.S. citizens to the unlawful ICE prevention of access to some immigration courts in detention centers.

Obama's First 100 Days: "Not in Service" for Victims of ICE Kidnappings

In addition to the myriad of ICE abuses of power during the first 100 days of the Obama administration, the further insult is that the main number for the ICE Office of Professional Responsibility, the office charged with internal investigations to punish ICE agents, is literally "Not in Service," or so the recorded voice says for the number listed for the Office of the Director.

I tried calling this morning to find out if anyone was looking into a U.S. citizen forced to sign a false statement on a form filled in by an ICE agent as part of a plan to arrange his kidnapping to Mexico. The federal code, defines kidnapping as

"Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49;
...

Section 3 applies to what ICE did to Mark, as Mark was taken unlawfully in a plane from Raleigh to Atlanta and by another plane from Atlanta to Mexico, even though ICE had a sworn statement from him stating he was born in the United States. Just to be clear:

(2) “special aircraft jurisdiction of the United States” includes any of the following aircraft in flight:
(A) a civil aircraft of the United States.
(B) an aircraft of the armed forces of the United States.
(C) another aircraft in the United States.

The federal kidnapping statute continues:

(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.
(d) Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than twenty years.

Section 1 also likely applies because the form that Mark was coerced into signing in North Carolina ended up in offices in Georgia. The statute contains other provisions, but the gist is that unlawfully seizing people and transporting them in planes is kidnapping, and there's no special clause that says ICE agents are immune. Mark was unlawfully seized and transported.

It's common sense to insist that the rule of law apply to government officials. Congresswoman Zoe Lofren, Chair of the House Subcommittee overseeing ICE, agrees. Andrew Becker wrote a terrific piece in Mother Jones last week on the deportation of U.S. citizens, and quoting Congresswoman Lofgren: "'There's no jurisdiction for the government to arrest or detain, or let alone deport, citizens. That's otherwise known as kidnapping.'"

MORE CHRONOLOGY
I spoke yesterday with ICE Spokesperson Barbara Gonzalez, who had a sketchy Executive Summary of ICE actions on Mark Lyttle. I asked her who prepared the summary and Gonzalez said she didn't know. I asked because conversations with various ICE agents indicate that there's a lot of folks trying to point the finger elsewhere, be it the prison, Raleigh, Atlanta, the immigration judge, and of course, they all want to blame Mark, the victim. I thought that whoever wrote this summary might have the narrative shaped by these concerns. It turns out that I was right. Today I received a different narrative.

Here's what Gonzalez told me yesterday, from a transcript of our conversation edited for relevance--nothing is added but tangential or confusing exchanges are not included:

BG: On Sept 2 2008 our ICE officers encountered Mr. Lyttle at Neuse Correctional Institute, Goldsboro, North Carolina.

JS: What does encounter mean?

BG: I would have to look into that. It could have been through the criminal alien program, where we identify individuals for removal.

BG: On November 5, 2008 ICE officers took a sworn statement where he stated he was a citizen of Mexico, that he illegally entered the U.S. without being inspected, and made no claim of U.S. citizenship. Subsequently ICE officers served Mr. Lyttle with a notice to appear.

JS: Can you tell me the date on the Notice to Appear and what it says.

BG: I don't have that information.

BG: On December 9, 2008 an immigration judge ordered Mr. Lyttle removed to Mexico. On December 21, 2008, ICE removed Mr. Lyttle to Mexico.

JS: Do you know where in Mexico he was taken?

BG: I don't know where. [Mark told me after I my conversation with Gonzalez that he and about a 100 other detainees were flown to Hidalgo in handcuffs and shackles; these were unlocked after they left the plane and they were told to walk across a bridge to Reynosa, Mexico.]

BG: On December 29, 2008 Customs and Border Patrol encountered Mr. Lyttle after he attempted to enter in Hidalgo, Texas They [pursued?] a process for expedited removal. On the same date he was removed to Mexico.

BG: On April 22, 2009, ICE encountered Mr. Lyttle after arriving from Guatemala City. Customs and Border Patrol determined he was previously removed and processed Mr. Lyttle for expedited removal. Subsequently he was placed in custody at the Atlanta pretrial detention center.

BG: On April 24, 2009, ICE interviewed Mr. Lyttle and obtained another sworn statement from him where he admitted providing false information regarding his citizenship.

JS: Do you know where he admitted this and if his lawyer [Neil Rambana] was present.

BG: I don't know where. He was in possession of a valid U.S. passport and subsequently released. On Friday, the DHS filed a motion with the court to rescind the order of removal.

JS: Do you know why ICE was calling Mark "José Thomas"?

BG: I have no information about José Thomas.

Here's what happened in our conversation today:

BG: On September 2 the day that Mr. Lyttle was encountered at the correctional institution by our criminal alien program officers ...

JS: Do you know why he was interviewed by ICE agents?

BG: Barbara Gonzalez does not know why [sic].

BG: I have a sworn statement taken on that day where the name you kept bringing up yesterday appears. Jose Thomas aka Mark Daniel Lyttle stated that he was a national of Mexico and that he was born in Mexico and that he entered the U.S. at age 3 and he wasn't sure where he entered the U.S. He stated he had never been arrested in Mexico but yes in the United States he had.

JS: Were these answers typed or hand-written.

BG: Hand written [She explained that it's a form and that it has lines indicating country of birth, e.g., and then it says in hand writing: "Mexico"]

JS: Do you know who filled in the form, was it Mark or the agent?

BG: I don't know.

JS: How is it signed?

BG: The signature says Mark Lyttle.

JS: Where does it say José Thomas?

BG: It's on the record of the sworn statement with the file number, José Thomas aka Mark Lyttle

BG: November 3, there's another record, a sworn statement with the same alien number and signed by Mr. Lyttle where he now says he's a U.S. citizen.

BG: A notice to appear is subsequently issued.

JS: What does it say?

BG: Matter of Mark Daniel Lyttle aka Jose Thomas, November 5th.

BG: There's a new sworn statement November 12, this one in the name of Mark Daniel Lyttle aka Jose Thomas. What is your true and correct name: Jose Thomas, any other names? Mark Lyttle, in what country are you a citizen? Mexico. Tthen it says mother and father's names. Father, Jose Thomas, mother Maria. Mother is living in Texas and father Mexico. Signed by Mark Lyttle

After I got off the phone with Gonzalez, I called Mark. He told me that the September 2 meeting Gonzalez describes is when the ICE agent told him they knew his name was José Thomas. I told him that Gonzalez said he signed a statement saying he was José Thomas and asked him why he did this. This is exactly what Mark told me:

I signed because I’m thinking to myself... She didn’t even let me read it. She didn’t even let me read the piece of paper. I asked her, 'Can I read this?' I didn’t get chance to read it. She said 'you’re waiving your rights, you’re from Mexico.'"

I asked Mark how he was feeling while he was having this conversation with the agent, whom he identified as an African-American woman:

"I felt very intimidated by her. I never knew about those people and it’s all up to them. I signed it because, I mean, I felt like I didn’t have a choice but to sign this paper."

In case the context is not sufficiently clear, Mark told me that the agent filled in the form, not him. Why did she do this? The answer may be interesting from a literary perspective but not a legal one. The agent decided that she wanted Mark out of the country, wrote a document that would accomplish this despite his verbal protests against this, and then forced him to sign it when she knew it would accomplish his forced removal from the country. Many other agents and agencies have responsibility for what Mark endured as well.

I told Mark that ICE is now acknowledging his sworn statement on November 3, 2008 stating that he is a U.S. citizen. Mark said, "If I signed a statement saying I was a United States citizen then why would you deport me?"

Great question! I'd really like to ask that of someone in the ICE Office of Professional Responsibility, if only they had their phone working, or the right number published on the website. 100 days and Obama can't get the watchdogs for the people who are deporting U.S. citizens to answer the phone?

I don't like letter grades, so consider this the written evaluation...

This is not just about Mark Lyttle. I know from talking to attorneys across the country and reading court cases of people like Mark arrested for illegal reentry that this fact pattern seems unique only because it's publicly examined here for the first time. I do not believe that when the ICE agent sat across the table from Mark in the Neuse Correctional Institute that this was the only time she filled in a form with false information and demanded a signature of an inmate. And I do not believe that this ICE agent is the only one who has done this. If only the ICE Office of Professional Responsibility had a working phone.

-------------------
Immigration Judge Controversy in Atlanta
There's more in the narrative that I'll get into later but right now I want to quickly address an esoteric debate initiated by some folks in the Atlanta immigration law community, about the role Judge William Cassidy played in deporting Mark Lyttle. (Thanks to Dan Kowalski for keeping me, and everyone else!, informed.)

I don't want to spend a lot of time on this now, but I do want to say to the folks who claim to have listened to the tape or who know someone who listened to the tape and did not see Mark speak up to the Judge, as he told me he did, the tape may not include all of the events that transpired.

Someone wrote:

"I have talked to Cassidy about this case. This guy's master was a "Mass" master, that is about 30 folks with no relief. There is nothing on the 4 minute tape in which Little [sic] says: "Hey, stop, I am a US Citizen." The I-213, is written up and says that he and his parents are all born in Mexico, notes he claims to be bipolar, and then notes that he says he was born in South Carolina [sic--North Carolina is where Mark was born]."

Wait a minute: this person is saying the judge has notes that a person diagnosed as bipolar and who says he's born in the United States is a respondent in his courtroom and then approves a deportation order for that person??? A crowded docket?

With apologies for the sarcasm, poor Judge Cassidy. Mark almost died from two diabetic seizures in Mexico, for which he was hospitalized, and one in an Honduran prison where he was sleeping in a large room with several other inmates on a cement floor, with no blankets or mattress, in a room that stank of urine because it was hard for the convicts with whom he shared the room to pee into the white PVC pipe that passed for a urinal, a place he found himself after the Mexican immigration authorities stuck him on a bus to Honduras and the Honduran immigration authorities locked him up because Judge Cassidy ... had 30 respondents in his courtroom? (When Mark's legs collapsed during his seizure in Honduras the guards laughed and taunted him before giving him some medicine. Mark told me that the "gangsters" had mattresses and blankets and had their girlfriends bring Mark bedding, but the guards "said it was a political thing, they hated Americans" and took his mattress away from him.)

If Judge Cassidy is overwhelmed, then why punish Mark and the other respondents? Why not simply terminate the proceedings for everyone in the court? If I'm having trouble finishing grading papers, I don't give everyone an F. If EOIR cannot handle its workload, then it needs to close shop, not rubber stamp U.S. citizens for a trip to Mexico. (Tucson reporter Claudine Lomonaco did a great story that aired yesterday on PRI's "The World" about problems with immigration court access.)

Even if Mark never said a word, I'm not sure what's so exculpatory for Judge Cassidy about this scenario.

Mark has been very specific and consistent about his exchange with Judge Cassidy, indeed about everything that has transpired. Maybe he really spoke with someone else, or maybe it was another time and place, but right now I believe what Mark says, which is that Judge Cassidy replied to Mark saying he was a U.S. citizen by saying he had to go by the paperwork he had, and when Mark asked him what the papers said, Judge Cassidy told him he would have a woman who sounds like she might have been from the Legal Orientation Program send Mark the paper he, Cassidy, was reading. Mark never received this.

I realize that people may have seen a tape, in which a judge is in one courtroom and respondents are in another and they're talking to video monitors and the respondent cannot inspect the paperwork in the judge's hand, but I think the jury's still out about whether the tape includes all the exchanges between the respondents and the immigration judge.

Mark Lyttle In Hiding From ICE

On Thursday, April 23, Neil Rambana informed me that another client of his, Mark Lyttle, was a U.S. citizen wrongfully identified as a noncitizen by an Immigration and Customs Enforcement (ICE) agent. (You can read about the first client, David, HERE, and Mark Lyttle HERE and you can read all the posts on Mark by clicking on Mark Lyttle.)

I spoke with Mark and his mother on Friday, April 24 and wrote about some of Mark's forced travel through Mexico, Honduras, Nicaragua and Guatemala after ICE removed him.

Here's what's happened in the meantime.

MARK STILL LISTED AS ALIEN IN DHS DATABASE
The DHS issued a press release Friday stating it was correcting its databases; as of this morning, not only was Mark still listed in the ICE database as Mexican, he also is listed as being in ICE custody in Atlanta.

ICE spokeswoman Barbara Gonzalez points out that the DHS never said when it would finish its updating. I asked her if there was a timeline that DHS had in mind when it issued this statement. She could not provide one. This leads me to conclude that when the DHS says it is updating its records, and there is no time line given, DHS is asserting that it cannot be held accountable for updating its records.

MARK'S CURRENT STATUS
Right now Mark is with his brothers Tommy and Brian at Fort Campbell, Tennessee. Mark wanted to stay with his brother, an army officer, because he was not comforted by his attorney's assurances that ICE would stop arresting him and wanted Tommy's protection. Looks like Mark was right. At this point if Mark were stopped and someone ran his name through a DHS database, it is likely he would be arrested.

After I told Mark's youngest brother, Brian, 25, also in the U.S. army, that Mark's name was in the ICE database as in detention in Atlanta, he said in disgust, "Government agencies operate with impunity. There's no ramifications for anything they do. We need to see this thing through. People need to lose their jobs. There needs to be some sort of restitution." Brian added that he'd also insisted that Mark get away from Atlanta. He'd heard that, "In Atlanta they can arrest you if you don't have ID on you. If you can't prove who you are, they can detain you." He said I should look into that to make sure, but that this is what he thought was going on. (This would be illegal, but so is deporting a U.S. citizen.)

ICE TRYING TO COVER UP MISCONDUCT
Meanwhile, I made some inquiries of ICE and North Carolina prison personnel to learn how Mark was put into deportation proceedings. What I learned is chilling. ICE is instructing its agents to put together information about Mark's history of mental illness in order to support a story that Mark had told ICE he was not a U.S. citizen, suggesting that Mark is or was mentally incompetent.

An ICE agent who does not work for public affairs told me that ICE in Atlanta tasked someone to go through Mark's medical records and pull out all the information on his "psychiatric illnesses." The agent told me that he could see in Mark's file that he was classified as bipolar, something that Mark himself had told me when we spoke on Friday and that I didn't mention because it had nothing to do with him being deported and because the diagnosis is uncertain, as I explain below.

Mark also is diabetic, but no one from ICE it Atlanta was asking for evidence about how this condition might have affected his detention and deportation. The agent would not tell me the grounds on which ICE had decided that Mark was Mexican, that was private, but was happy to tell me that Mark was bipolar. (Mark and his mother Jeanne discussed his having a "mental disorder" a television reporter who posted this on the internet, and that's why I'm writing about it today.)

The crafting of this information into an explanation for Mark's deportation was signaled as well by Ivan Ortiz, a DHS public affairs officer. I asked Ortiz why ICE gave Mark a notice to appear in immigration court. Ortiz replied, "That was a decision made by an immigration judge." This was not responsive, although I pity Ortiz's friends growing up, so I repeated the question. (Immigration judges do not issue notices to appear in their immigration courts; ICE does.)

Ortiz said, "At the time he did not say he was a U.S. citizen and everything indicated he was Mexican." I told Mark this afternoon what Ortiz told me and Mark was firm, repeating what he'd told me earlier, that he had insisted his name was Mark Daniel Lyttle, that he'd given him his social security number, which he had memorized, told them he was a U.S. citizen, and that he never, not once, said he was Mexican until after the immigration judge issued a deportation order and Mark wanted to get out of the Stewart Detention Center.

The DHS was trying to use a similar line in defending their deportation of Peter Guzman, also a U.S. citizen born in the United States. ICE said that Guzman himself had said he was born in Mexico. First, a defense against a charge of misconduct or kidnapping cannot be that the victim had a mental illness. And second, Mark Lyttle told ICE and Peter Guzman told the L.A.jail custodial assistant that they were born in the United States, respectively. (An agent states this in an affidavit defending Guzman's deportation and then says they didn't believe Guzman because aliens lie.)

Just to be clear, there are cases in which an underlying mental illness can wrongfully trigger deportation proceedings, as was the case for someone I identified as Anna in article I wrote for The Nation. Anna, documented as legally incompetent, told a police officer arresting her in Phoenix she was born in France and the foreign birth statement triggered her being sent to the Eloy Detention Center. She also has said that the Pope is her father and JFK is her father, but ICE did not deport her to the Vatican or call Caroline Kennedy.

Eventually, relying only on the sworn statement of someone who was legally incompetent, an immigration judge issued Anna a deportation order, which was not executed because France would not accept her so Anna is presumably wandering around southern Arizona deprived of her citizenship rights and subject to being thrown into detention at any point. A passport application in her files states she is born in Tehran, so Anna had better pray that the U.S. continues to have poor relations with Iran, or she might find herself in the Middle East.

In the event, I have spoke with Mark for a couple of hours. He was completely lucid and also sharp on the timeline and details of what happened. I hope there are tapes on file for the immigration hearings because I am confident they will confirm Mark's story.

-------

JEANNE'S STORY
Jeanne, 60, lost her job today as a rehab aid at a local hospital because she was allowed only one absence during her 90-day probationary period, set to end May 13, and she used up a second one on Friday when she went to pick up Mark from the Fulton County Jail where ICE was holding him.

This is just one example of the myriad of consequences that ICE misconduct causes to innocent parties, especially family members. Other examples are U.S. children of detainees being held in foster care before being adopted while their parents are either still in detention or deported, family members who are in advanced stages of illness denied the comfort of loved ones while on their death beds, U.S. citizens having their relatives, often legal permanent residents, "disappeared" by ICE, something that Jeanne also experienced, although part of the separation period is due to the prisons and not just DHS.

Jeanne hadn't seen Mark since July, 2007, when she dropped him off at a group home in North Carolina. Mark, one of three special needs siblings she adopted, in addition to two to whom she gave birth. Mark had some problems taking care of himself due to either mental illness or drugs he'd been prescribed to help treat it, discussed below. Jeanne was moving to Kentucky and there wasn't room in the Saturn for her daughter, Mark, and their belongings. The plan was that once she was settled, she'd come back and pick him up. She spoke with him on the phone a few times, enough to learn he was unhappy, but when she tried to make arrangements to find him in August, he was gone. Turns out he'd been arrested for trespassing -- Jeanne said he'd broken a rule in the home -- and he was sent to Jacksonville Jail.

After that Jeanne lost track of him, "I sent him a letter with everyone's phone numbers, but I got it back - 'Refused.'" In fall and winter, 2007 "his brothers walked the streets looking for him, everybody was looking for him. I checked the obituaries." On Mother's Day in 2008 she called a state hospital where Mark had once stayed, "The attendant remembered me and said, 'I'm not supposed to do this, but I'll get on the computer and check all the hospitals.'" No sign of of Mark. The same day, her son David, 29, said, "'Mom, let me try.' He sent the letter to same place at the jail and he enclosed the letter I got back. When I went to visit David in Winchester, Virginia, he showed me the manila envelope -- 'Refused'-- and we thought Mark had refused it. I thought Mark felt I left him behind, that I just left him [when I was moving to Kentucky]." Jeanne was crying, "We kept trying to find out where he was," and she told me about a family friend who was a lawyer and had hired a private investigator to help Jeanne find her son, but then the attorney had a stroke. It turned out that Mark had never received any of their letters.

Mark's absence haunted her family. Jeanne said that two weekends back she was visiting her son Tommy, 29, in Fort Campbell. They were talking about where Mark might be, speculating if he could be in Atlanta. Tommy tried calling some places, I'm not sure where, and Jeanne could hear him say, "I'm looking for Mark Lyttle." But no news.

Until Friday, April 17. That's when Jeanne received a phone call from Tommy, who said he was calling her about Mark. "I asked [Tommy] if he'd found [Mark] and he said, "Mom, I didn't find him, he found me," and explained how Mark had called him from the U.S. embassy in Guatemala, the first leg of Mark's trip home. If the embassy staff in Guatemala could believe Mark, and pay for an international call to his brother Brian, then why couldn't government employees in the United States exstend Mark the same courtesy before shipping him out of the country?

Jeanne described her response to Mark's deportation by his own government, "I'm a strong Christian woman, but let justice be served. This beats all. I thought I was dreaming, or seeing a made-for-TV movie. How many others are out there?"

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

MARK'S MENTAL ILLNESS
Mark and his family freely discuss his mental illness diagnoses. Jeanne, who repeatedly mentioned her faith in God, said that perhaps it was a blessing that this happened. "Mark told me he was 'traumatized,'" revealing to Jeanne not only his distress, but a mental and emotional acuity that Jeanne had never seen in her son before. "I'm so shocked he's so clear-headed," she told me.

Jeanne explained that a while back a psychiatrist in Virginia had called and said "he wasn't supposed to be calling me" but he had treated Mark and when he took him off the medication, Mark seemed fine. In other words, it was the medication that was causing Mark's disorders. The psychiatrist said that she might have grounds for a lawsuit against the places that had been medicating him so heavily.

Again, I was reluctant to pursue this topic in this particular case because it seems a distraction from the main issue: ICE wrongfully deported someone. However, because his family is discussing Mark's psychological condition with the media and because ICE appears to believe that it is more defensible to deport someone because of mental illness than racial profiling, I thought I would supplement the record.

Mark's response to what happened as far as I can tell from our phone conversations is the response of any sane person: he's traumatized, terrified of law enforcement, especially ICE, and happy, very, very happy, to be back with his brothers, including Tommy, 29, who took this picture of Mark this afternoon.

U.S. Kidnaps Mark Lyttle, Leaves Him Stateless in Mexico, Honduras, Nicaragua, Guatemala

Mark Lyttle, 31, born in Salisbury, North Carolina, was exhausted and traumatized, but he insisted on talking tonight. He's also very angry. He'd just been released this morning from the Fulton Jail in Atlanta after the Department of Homeland Security (DHS) violated his dignity and liberty one last time and arrested him Wednesday at the Atlanta Airport on the charge of illegal re-entry, a charge predicated on alienage. Mark is a U.S. citizen.

In the language of the DHS Mark was "ordered removed" as a noncitizen on December 9, 2008. That's a bureaucratic euphemism for what really happened: Mark's government kidnapped him, rendered him stateless, dropped him off in Mexico, and four months later, after he was kicked out of Mexico to Honduras, and from Honduras to Guatemala via Nicaragua, bought him a Big Mac before arresting him again in the United States.

Mark's mother, Jeanne Lyttle, 60, an occupational therapy assistant who raised Mark and his three special needs siblings after adopting them, also had something to say. (Jeanne's husband died a year and a half after the adoption.) They spoke to me on Friday evening, April 24, 2009 from Jeanne's home in Kennesaw, Georgia.

On October 26, 2008, Mark was supposed to be released after serving 85 out of a 100 day sentence at the Pasquotank County Jail in North Carolina for a misdemeanor. Instead, a woman from Immigration and Customs Enforcement (ICE) told him that they'd figured out his real name was Jose Thomas, that he was Mexican, and that he was going to be sent to Mexico.

Mark said, "The prison gave me my release papers and the next thing I know, I'm in a white minivan and they drive me all the way Raleigh. Then after that they fly me all the way to the ACC and I stayed there for a month. They were calling me Jose Thomas. They were trying to say that's my real name. I told them my name is Mark Daniel Lyttle, I was born in North Carolina." Mark started speaking rapidly, saying a phrase that he repeated at several points, and I felt the urgency that, shockingly, was belittled and ignored in his encounters with the people sending him away, "My mother's Jeanne Lyttle, here's my social security number, my brother's in the army, please call someone!" He told this to several ICE agents. He told this to William Cassidy, the immigration judge who ordered him removed on December 9, 2008. Mark told this to the U.S. border patrol in Texas after he was dumped in Mexico. "No one checked. No one believed me."

Jeanne picked up the story, "The judge looked at the piece of paper someone gave him and said that since Mark didn't have any proof, he needed to go by that piece of paper." As I've seen in many other cases, detainees do not have money to contact people. Mark simply couldn't pay the exorbitant fees jails and detentions centers charge for a phone call. [NOTE: This is what I first understood but then later Jeanne told me she had moved and his brothers were on new bases, so Mark did not have their phone numbers on hand.]

Judge Cassidy ignored Mark's pleas. Judge Cassidy could have tried to call Mark's mother; a DHS attorney could have looked up Mark's social security number. And anyone from ICE could have tracked down Mark's brother who was on a base in Kentucky. No one did a thing. Jeanne said, "Why didn't they look up his fingerprints, his social security number, why didn't they follow through on anything?"

I asked Mark if anyone told him that he could appeal the decision. He replied, "I was going to appeal until I found out that it would be six months to two years before I'd have a chance, and even if I did that, they still wouldn't believe me." He found the Stewart Detention Center unbearable. A detainee from El Salvador told him, "'You need to fight these people.'" Mark replied, "I don't want to stay here as long you have" and decided to take his chances from Mexico, even though the Mexican detainees were warning him not speaking any Spanish was going to make it tough. "They told me, 'your biggest problem is going to be the language.'"

Mark was dropped off somewhere near the Texas border with between five to ten pesos, Jeanne said. The only piece of identification he had was a deportation order for Jose Thomas. Mark told them his full name, that his mother was Jeanne Lyttle, that he was born in North Carolina, and his brother was in the army. He asked them to call his mother, his brother, to check his social security number. The border patrol guard looked at his paper and said he "was illegal."

Mark, defeated, headed south and was wandering around Mexico until he found some missionaries who gave him shelter and fed him after he hadn't eaten for two weeks. At some point, two months after being kidnapped by ICE, tried in a fake court, rendered stateless and dropped off in foreign country where he did not know a single person and could not speak the language, Mark crossed paths with the Mexican police, who confiscated his deportation order for Jose Thomas and put him on a bus to Honduras.

When Mark couldn't produce a passport for the border guards in Honduras, they "drove me three hours to San Pedro and left me in a jail with robbers and killers." Jeanne added, "A woman jailer named Sonia would spit at him and stick her tongue out. She hit the doors while he was sleeping so he couldn't sleep, and told two inmates to take him out so they could shoot him. One of them was bilingual and told Mark what was happening and he wouldn't do it."

After a month and two days, the Honduran immigration officials wanted to ship him to Guatemala, but for some reason the van stopped in Nicaragua, and then Mark was dropped off in Guatemala. The Guatemalan police pointed him the direction of the U.S. embassy. Once they spoke with his brother and were convinced he was a U.S. citizen, the embassy staff bought him a hamburger at the McDonald's across the street.

Jeanne, herself from Ireland and adopted, ended our conversation by saying, "I love this country so much. I cry every time "The Star Spangled Banner" is done. This tears my heart to pieces that they could do this to him. How many others are out there we don't know about who are stuck places?"

Mark said he was going to stay with his brother in Kentucky because "I'd feel safer. I'm so disgusted with ICE. He's a high ranking officer. I fear these people now because they're messing me up. My lawyer [Neil Rambana] says you don't need to worry now, but I don't trust them. It was a real passport I had, but they still detained me again."

I was told that Kelly Nantel from DHS would address questions about this case today, but she has not contacted me. [Added 4/25/09: DHS did issue a press statement to a local television reporter that contained false information. According to the reporter, the statement said: "Immediately upon learning that Mr. Lyttle was claiming U.S. Citizenship and had been detained by U.S. Customs and Border Protection, ICE conducted a thorough investigation and review of his file and all available information. Based upon the available information, ICE concluded that Mr. Lyttle is probably a U.S. citizen. ICE has initiated and will complete all the necessary actions to correct DHS databases." However, ICE did not conduct this investigation "immediately" but only after I spoke with Barbara Gonzalez and she contacted ICE agents in Atlanta. Until that point, ICE it Atlanta ignored Neil Rambana's repeated phone calls on his client's behalf, as I posted on Thursday, April 23. It's great that Gonzalez got someone to do something on Thursday, but ICE knew on Wednesday that Mark was claiming U.S. citizenship and it's unclear how long they would have held onto him if Gonzalez had not intervened. ICE was responsible for shipping him out in the first place; I've seen many other similar cases (well, without so much international travel) in which people with Mark's fact patterns and without a sympathetic ICE agent intervening at the behest of a professor/journalist are not just detained but charged with illegal re-entry.]
----------------------
UPDATE Monday, 4/27/09 5:25 EST--At 2:15 this afternoon I sent a waiver signed by Mark and witnessed by his brother authorizing DHS to review with me the government's account of his deportation. Barbara Gonzalez told me that in 2 hours she would discuss the file. At 4:30 she told me she had forwarded the waiver and was waiting to "hear from our attorneys."
------------------------------


NEXT INSTALLMENT: What Mark's brothers and mother were going through after Mark was kidnapped and they didn't know where he was.

U.S. Citizen Deported to Mexico, Shipped to Guatemala, Now Held in Jail

(For an updated account, after speaking with Mark and his mother, Jeannie, please go here.)

Neil Rambana, an attorney in Florida who'd reported an earlier case of a client of his that ICE had misclassified as a noncitizen, is helping another US citizen, Mark, in the middle of a surreal and excruciating experience with the DHS. [Added 4/24/09 Immigration Judge William Cassidy in Atlanta wrongfully deported Mark on December 9, 2008 to Mexico, and from there he ended up in Guatemala via Nicaragua before returning to the U.S. on Tuesday, only to be arrested by DHS at the airport.]

Mark's family first learned he was in Guatemala when he called his brother, Tommy, last Friday from the US Consulate. The consular officer told Tommy that his adopted brother, born in North Carolina, was trying to return to the United States. The family contacted Rambana and he faxed a copy of Mark's adoption papers indicating his U.S. birth. That was good enough for the U.S. consulate to not only issue Mark a temporary U.S. passport, but to help him obtain a plane ticket for his return. But DHS only compounded their earlier injury once Mark arrived.

Instead of apologizing for their enormous mistake, DHS at the Atlanta airport accused Mark of illegal reentry and took him into custody. Rambana paraphrased what Mark was told, "Customs and border patrol say you have an order of deportation; you're reeentering after you've been deported."

Rambana has spoken to ICE agents in Atlanta and left messages, and has also spoken to the DHS desk attorney, who has the authority to dismiss charges and order Mark released.

DHS has ignored the legal presumption of US citizenship conferred by a US passport and falsely arrested Mark. So far no one has responded to Rambana's persistent requests for Mark's release.

As Neil and I were getting off the phone we talked about how odd it was that this sort of case had long stopped seeming unusual. I told him about some conversations I'd been having with a criminal attorney in Phoenix (will post soon) about the border patrol down there tearing up the birth certificates of Mexican-American teenage boys and judges deporting them, and then prosecutors charging them with illegal reentry. Neil said ruefully, "The worst part is that it's so outrageous that it's happening so often and beginning not to seem so outrageous."

(I sent the case information including the A number and Rambana's contact information to Barbara Gonzalez, an ICE spokeswoman who claims that ICE does not arrest U.S. citizens. Fingers crossed...)
-----------
UPDATE: Friday Morning, 4/24/09--Barbara Gonzalez was responsive. She called the ICE office in Atlanta and the DHS desk attorney to ask them to look into Mark's detention. Rambana sent me a note this morning saying that DHS is now acknowledging that Mark is a U.S. citizen and they are going to release him. I will be speaking shortly with his family.

UPDATE: Friday Noon, 4/24/09-- Mark is home with his mother. More tomorrow.

As I've written before, the only means of preventing US citizens and legal permanent residents from being wrongfully detained and deported, and not to deprive them of Constitutional rights to their citizenship and legal residence, is to provide everyone in deportation proceedings an attorney and the full due process protections of the U.S. Constitution. Under the U.S. Constitution, it is never legal to deport a U.S. citizen by mistake. Any laws, regulations, or DHS or DOJ practices with this effect must be stopped immediately, including the mandatory criminal alien deportation law.

In some cases the agents involved should not only be fired, but charged with kidnapping and false imprisonment.

One final note: Last year, when I was writing an article for The Nation about US citizens being deported, I sent ICE public affairs spokespersons Brandon Alvarez-Montgomery, Viriginia Kice, and Lori Haley documents indicating that Rene Saldivar, a US citizen, was being wrongfully detained in Eloy, Arizona. I was testing their statements that ICE did not knowingly detain US citizens. ICE failed. This time, although DHS in Atlanta ignored Mark's passport and arrested him, the ICE public affairs person in DC, Barbara Gonzalez, followed up on my inquiry and Mark was released.

It seems that DHS is finally acknowledging that its agents do arrest US citizens, the first step to ending not only the wrongful detention of U.S. citizens, but the archaic practice of banishment. The problem of US citizens being deported is a headline grabber, and that's unfortunate unless the complexities and traumas of the inane U.S.-Mexican border, indeed of any border, are understood as the main narrative driving the story.

The first deportations from England to the colonies were not criminals but vagrants, English nationals who were "caught" outside their parishes of birth. The thought was that if left uncontrolled, the free movement of peasants and paupers would overwhelm the cities. The barbarity of punishing people for moving across a national border will strike future generations as ridiculous as it would seem now to ship people out of San Francisco for the crime of moving there from Omaha, Nebraska--a distance much further, in many ways, than the distance between Mexico and the southern United States.

The New Jewish Eugenics, Just as Dumb

The pseudo-scientists have done it again: successfully pitched an inane argument dressed up as "new research" to a middle-brow audience of journalists and editors always happy to unveil a "controversial" fake discovery legitimating racial and ethnic genetic inequality. One of the co-authors has made equally absurd claims before, arguing, the LA Times writes, that "some unidentified pathogen prompts a hormonal imbalance that makes babies more likely to become gay."

Henry Harpending and Gregory Cochran wrote a book that ignores a ground rule of statistics, not to confuse correlation with causation, especially when the correlation is likely to be entirely spurious.

They argue that the increased likelihood of Ashkenazi Jews to have certain mutations associated with neurological disorders AND to have higher IQs than themselves reveals the connection between these two attributes:

[Cochran] was struck by the fact that so many of the diseases involved problems with processing sphingolipids, the fat molecules that transmit nerve signals.

This seemed an unlikely coincidence.

Danger, Will Rogers, danger! There are hundreds, even thousands, of possible attributes associated with Jewish stereotypes, so it is not surprising that Cochran hit on one that yielded a correlation with some genes that have a higher but still rare probability of existing among Ashkenazi Jews. Their paper was turned down by peer reviewed journals and is a laughing stock among the scientific community.

Though the Times makes this all clear, even publishing the researchers' claims as talking points gives them too much credibility. If the Times is not going to turn its pages over to people debating whether one's astrological sign may cause more rare cancers, only to have real scientists demolish this assertion, because why waste the space to promote a nondebate, then why are they allowing themselves to be used to stage, or rather, create, this particular "controversy"?

The real information here is that absent scientific evidence it exists, some people still prefer to inhabit a world based on geneticized racial superiority: it is this fascination with the racist fantasy, be it one of attraction or repulsion, that allows these lame cliches to persist. The only evidence in support of their research is that the scientists are non-Jewish, hence confirming their theory's prediction that they lack the Jews' "abundance of brain power."

EOIR: Requiring Advance Notice to Attend Immigration Courts is Unlawful

A 1982 DOJ regulation requires immigration courts be open to the public, except in a limited number of circumstances determined by immigration judges. It turns out that the government is systematically violating this regulation, something I learned when I was recently turned away from immigration courts in Arizona detention centers. I later wrote about the excuses for this given by the EOIR.

NEW DEVELOPMENTS
Here's how the government has responded in the meantime.

EOIR
In the last week, apparently in response to inquiries on immigration court access policy by a Tucson reporter Claudine LoMonaco and myself, the EOIR changed their Immigration Court Practices Manual that the EOIR spokesperson Elaine Komis referenced to me the day I was turned away.

On March 27, 2009, the day I called Komis from the detention centers, the Manual stated: "The news media shall notify the Office of Legislative and Public Affairs and the Court Administrator before attending a hearing."

On April 9, 2009, the Manual stated: "The news media is strongly encouraged to notify the Office..."

EOIR spokesperson Susan Eastwood told me they made the changes because "some people had mistakenly believed that 'shall' meant 'must' and that was never our intention." EOIR made their underlying intentions explicit, Eastwood told me, because "immigration courts are open to the public." EOIR realized that requiring the media notify their office before attending a hearing was inconsistent with this.

DHS
DHS responses to inquiries about its unlawfully restricting access to the immigration courts has been something like Orwell meets Kafka. Access means no access; documents on the web stating their policy means no documents on the web stating their policy; publicly available information means obscure lengthy documents that contain no relevant information for attending the immigration courts.

The Details
On Friday, April 3, I received the following statement in an email message from ICS public affairs officer Vincent Picard in Phoenix:

“ICE’s policy is to provide public access to open hearings that are held in secure locations by requiring the minimum safety precautions. Specifically, persons wishing to attend courtroom proceedings in secure detention centers only need to comply with ICE’s visitation requirement to submit a written request in advance to be placed on the visitation list for a specific day allowing time to check credentials and undergo a security clearance. Certain cases are closed to the public by operation of law and those determinations are made by the immigration judge.”

I replied with a number of questions. Here are the questions and replies or no replies obtained in conversation with Barbara Gonzalez, an ICE spokesperson in Washington, D.C.

Gonzalez prefaced her comments by saying that a "new special advisor" Dr. Dora Schriro, appointed by Secretary of the DHS Janet Napolitano, is "looking at issues dealing with detention" and "making recommendations," and that immigration court access now will be among the areas of her examination.

Gonzalez responded on the telephone by largely reading responses to the written questions I'd sent Picard on April 3; some of my questions were not addressed. I have requested a copy of the statement from which she read and have received a reply. When I'd asked about receiving this information in writing earlier, Gonzalez told me she planned to provide it to me on the telephone because this was "more personal." I asked again and she said she was reading from notes and would answer me further if I had follow up questions. I will be following up on the written questions she did not address yesterday but in the meantime, I wanted to post what I have.

Again, my questions were in writing. Her replies are verbal.

JS: The big one: How can DHS justify having a higher level of security requirements for entering immigration court proceedings in its facilities than those required by prisons and jails where court hearings are also held and the public is allowed access without advance screening? Can you please tell me who authorized this policy and can you direct me to any written government statement other than your email where it appears?

BG: "Entrance requirements to open court hearings are determined by specific requirements by detention facility and are consistent with national detention standards."

Gonzalez then referred me to the Operations Manual ICE Performance Based National Detention Standards, initially drafted in 2000. Gonzalez repeatedly mentioned this document's section on Visitation as evidence that ICE had made its access policies for visitors attending immigration courts available to the public.

And yet, this document NOT ONCE mentions immigration courts, much less rules for public access to immigration courts in detention centers, but focuses on rules for attorneys and family members who want to meet with detainees.

At one point the document states: "A live voice or recording shall provide telephone callers the rules and hours for all categories of visitation. "

None of the detention centers I have called that house immigration courts, including those at Eloy and Florence, avail callers of information on access to the courts. Clearly public visitors to immigration courts are not a category contemplated by these centers and the claim that they are open to the public is demonstrably false.

In addition to this DHS document, Gonzalez also referred me to the Executive Office of Immigration Review Immigration Court Practice Manual. This document states under the heading of 4.9 Public Access: "Hearings in removal proceedings are generally open to the public"; none of the exceptions listed refer to courts being situated in detention centers.

Under a separate heading 4.14, the manual states: " For hearings held in Department of Homeland Security detention facilities or federal, state, or local correctional facilities,
compliance with additional security restrictions may be required. For example, individuals may be required to obtain advance clearance to enter the facility."

First, as Dan Kowalski, immigration lawyer in Austin, Texas, has informed me, these manuals do not have the force of law; if they are inconsistent with regulations, as this section is, then they require revision--as the EOIR recently undertook in changing its language on journalist access. When I asked Elaine Komis and more recently Susan Eastwood about the contradiction between courts being open and access requiring "advance screening" they both said that EOIR was only stating DHS rules.

Not only is this practice violating the regulation, it is not one that is at all transparent. Leaving aside the tension between open courts and advance screening, I asked Gonzalez if she thought it reasonable for a member of the public to find minutiae in a hundred plus page document they have no reason to know even exists.

BG: "It's no different than if you visit somewhere you've never been. You as a member of the public need to do your homework and figure out the rules, what you can bring and can't bring; for instance, cell phones and laptops are not allowed."

First, one can read the EOIR statement and still have no way of knowing the rules for showing up at immigration courts in a particular detention center, including a requirement of advance screening.

Second, even when I tried to comply with the advance screening requirement by contacting the ICE agents at the Florence Detention Center and leaving several messages, no one returned my phone calls. It was impossible for me to pursue obtaining advance screening.

Third and most importantly, planning to go to a publicly accessible court hearing should not require the advance planning of going to the Arctic Circle. It's one thing to go back to the car and drop off a cell phone, something else to return to the car and wait two weeks, which is what I was instructed. Say you read about a deportation hearing in the newspaper and want to attend, or an attorney notifies a reporter a few days in advance that a client has an interesting case the public should know about. Or say that the DOJ wants to keep their judges on their toes by not knowing when someone might drop in. None of these expectations of courts being open to the public are met by an "advance screening" requirement.

Indeed, EOIR itself has stated that advance notice by journalists violates the regulation requiring public access. If advance notice violates this rule, then surely advance screening does as well.

JS: Can you please give me a list of the "secure locations" where ICE is not allowing the public entrance into immigration courts without a written request?

No list was provided. Gonzalez said the detention centers make these assessments individually and its the public's responsibility to somehow figure it out.

JS: What measures, if any, has ICE made to alert the public about their limited access to immigration courts in "secure facilities"?

Gonzalez referred me to their standards and the EOIR rules.

JS: Who decided not to include a reference to the immigration courts on the signs at Eloy? Why is there no sign indicating the presence of immigration courts at Eloy?

This question was not answered.

JS: Why isn't a search and metal detector sufficient for providing "minimum safety precautions"? Whose security is being protected by this policy of not allowing the public into immigration court proceedings without advance notice?

The first part of the question was not answered. Gonzalez said the security was for the detention center detainees, judges, employees, and members of the public.

JS: How exactly is this advance notice to be given and to whom?

This question was not answered.

JS: Where does ICE state its "visitation requirement"s?

Gonzalez referenced their Performance Based National Detention Standards, but again, that is simply wrong.

JS: How long in advance and to whom is this request to be delivered and in what form?

This question was not answered.

JS: How is [advance screening] consistent with the regulation requiring public access
to the immigration court? Shouldn't judges expect that at any moment the public might scrutinize their proceedings? What if someone in the public learns of the hearing without time to submit documents for ICE scrutiny?

Gonzalez told me that advance screening was consistent with public access. I asked how a two week wait could accommodate this requirement. Gonzalez said, "Who said anything about two weeks?" and implied that I had arbitrarily selected a time frame to make DHS look more unreasonable than it really was. I told her that was the time for advance screening given to me at Eloy, and asked her if she thought that was unreasonable. Gonzalez shifted gears and said two weeks for screening was consistent with public access.

JS [Picard's reply mentioned that DHS had to "check credentials"]: What credentials are necessary? How is this consistent with the regulation specifically saying the immigration courts are open to the public, without any credentials necessary?

This question was not answered.

JS: What does this require? What would be grounds for failing this clearance?

This question was not answered.

Gonzalez concluded by reiterating that the policy on access is under review.

Meanwhile, every day, in violation of the law, hundreds of people are having the most important fact of their lives--the country of their legal residence--determined in secret hearings by judges who are political appointees ideologically averse detainee defenses and unafraid of public scrutiny.

Many thanks to Dan Kowalski for sending on the EOIR update to me and for providing legal insights on the regulation requiring public access to immigration courts!

News On US Citizens being Detained, Deported, or Convicted as Aliens

The following summarizes key findings from my recent research on U.S. citizens who have been detained, deported, or convicted of immigration crimes predicated on alienage. I am compiling this in the context of other narratives from government officials, immigration attorneys, criminal public defense attorneys, and US citizens for submission to a peer-reviewed journal but thought this information should be publicly available in the meantime.

The reports on the US citizens detained in the Eloy and Florence areas are based on my personal inspection of more than 2,000 individual case files maintained by the nonprofit Florence Immigrant and Refugee Rights Project. They provide legal support for pro se representation to all detainees held in Florence or Eloy and maintain files for approximately one-third of the detainees.

Between March 23 and March 25, 2009 I went through all the case files for Florence detainees for 2008 and all the cases files that were classified as possible terminations for detainees held in Eloy from 2006-2008.

The FIRRP attorneys are responsible for much appreciated access to their files, and for putting up with a stranger occupying their conference room for three long days, but they did not direct my research in any way.

In addition to the results below, this research yielded many other disturbing findings I will describe in future postings.

COUNTING US CITIZENS IN DETENTION CENTERS

--I saw files for at least 65 US citizens who were held in the Eloy Detention Center in Arizona between January 1, 2006 and December 31, 2008.

--I read files for at least 15 US citizens who were held in jails or ICE-run detention centers in nearby Florence, Arizona between January 1, 2008 and December 31, 2008.

--One percent of the cases in FIRRP files were for US citizens. If this rate holds for the United States, then about 10,000 US citizens have been put into removal proceedings since 2003.

--In at least five cases, DHS trial attorneys appealed the immigration judges' orders terminating proceedings on grounds of US citizenship. In each of the cases the BIA affirmed the order terminating the deportation proceedings, but the delay added months to years to the time the US citizens were held in detention.

--In an additional five cases that have been previously unreported in the media, US citizens who had produced birth certificates indicating birth in Arizona, Colorado, Missouri, or California were held as unlawful immigrants in detention centers in Eloy or Florence.

--There are many other cases in which individuals with proof of being citizens by birth are receiving adverse judgments by immigration judges and BIA judges who are writing decisions that defy law and evidence.

EXAMPLE OF ICE AND IMMIGRATION JUDGE VIOLATING DUE PROCESS RIGHTS OF US CITIZEN

I saw documents in a file for a 17 year-old who was born in Colorado and raised in Mexico. When he returned to the United States with his birth certificate, a border patrol guard tore it up in front of him and told him it was fraudulent. He told the kid, Michael, not his real name, that he could dispute this by being handcuffed and brought to a detention center, or he could sign a document stipulating he was a Mexican citizen and be released.

Go to jail with scary, mean guys who just tore up your birth certificate or sign a get-out-of-jail-notsofree card? The kid chose the latter.

Michael tried returning again, was caught, and this time decided to stick it out. The immigration judge relied on his statement of Mexican citizenship signed under duress and ignored the three inch thick file documenting his birth in the United States, including a birth certificate, a photo from when the kid was about 8 years old in which you can see the exact same birth certificate in his hand, and a hospital report on his newborn reflexes taken several minutes after birth.

Michael has been removed to Mexico and stripped of his citizenship rights.

ICE LIES

Today's LA Times article states: "'ICE does not detain United States citizens,' said spokesman Richard Rocha, adding that agents thoroughly investigated people's claims of citizenship. 'ICE only processes an individual for removal when all available facts indicate that the person is an alien.'"

Since in some cases, the DHS attorneys are themselves withdrawing the notices to appear, this statement is demonstrably false.

For instance, one guy was held in Eloy for two and half months in 2007 before the trial attorney filed a motion to withdraw the removal order on grounds of the detainee's US citizenship. I have documented similar cases and I know from conversations with DHS officials that they are also aware of this.

I have additional information on US citizens in removal proceedings--I've documented over 160 cases in recent years of individuals whose claims to US citizenship have been affirmed by an immigration judge, USCIS agent, jury, or federal judge and yet who at some point were detained, deported, or convicted of immigration crimes predicated on alienage.

Also, there are the potentially viable claims that cannot be pursued even as far as Michael's, who actually had a birth certificate.

Some files had what appear to be legitimate claims but the detainees decided not to pursue them. E.g., - a sleeve note by a Florence attorney states: “Dad USC, died 20 years ago” “R has a cta which has USC dad's name on it. BUT R doesnt have anything else and probably not means to get it. If he wants he can turn in generic deriv. w. [illegible] that he is an USC. But w/o more data claim will be denied.”

The attorney was advising the client on a pro se basis and knew that an indigent felon didn't have the resources to track down the necessary documents to show his father's residence and work history in the United States.

Okay, that's all the new stuff for now. More to come.

-----------

I was hoping that some of the information above would have appeared in today's LA Times story about the detention and removal of U.S. citizens. The article by Andrew Becker and Patrick McDonnell, U.S. citizens caught up in immigration sweeps mentions just one new case of a natural-born US citizen held in detention and downplays the documented evidence of many others in the public domain. I'd shared some of the information above with one of the reporters; I know from our conversations he had additional evidence of US citizens held in detention that also was not included.

Newspapers have space constraints and cannot include all available information about any particular subject;and yes, people who are interviewed and have their comments omitted will be predictably grumpy. No news there. But what seems wrong is for the article to confuse space constraints with the absence of evidence, as occurs in this statement: "No agency tracks such incidents, so statistical totals are not available."

This is gobbledygook and also incorrect. Since when does a "statistical total" from counting require an agency? What does it tell us about reporting standards that government reports are equated with evidence when it is the very same government that is illegally holding its own citizens?

----------

Meanwhile, if you want a quick survey of published reports on US citizens in detention centers or deported, you can check out the following:

-- the McClatchy news service, "Immigration officials detaining, deporting American citizens" (January 24, 2008)

--USA Today, Citizens sue after detentions, immigration raids (6/25/08)

--The Nation "Thin ICE" (6/23/08).

-------------------------
This is a photo of the Gila River, mostly a dry bed unless there's a downpour, taken from its north side facing south. The buildings in the background are the Pinal County Jail, which houses detainees. After the Mexican-American War, the Gila River marked the southern boundary of the United States. The Eloy Detention Center is also south of the Gila River. I took this picture a couple of weeks ago when I was doing research in this area. (That's not a typo: this area of the country was obtained by fraud and corruption in a trade brokered in 1853 on behalf of US slave-holding interests and for the personal enrichment of a Mexican dictator.)

DOJ/EOIR: Secret Decision to Maintain Secret Immigration Courts

WHO DUNNIT?

Last week I wrote about being turned away from immigration courts in Eloy and Florence, Arizona, even though federal law requires immigration courts be open to the public.

At first it seemed this might be a mistake on the part of overzealous guards. But it's not. According to Elaine Komis, Public Affairs Officer and Congressional Liason at the Executive Office for Immigration Review (EOIR), the EOIR has been aware for quite some time that the public has been prevented from entering immigration courts in some parts of the country, and the EOIR is happy to go along with this.

Even the architecture of the buildings suggests secrecy: the sign outside says "Eloy Detention Center" but includes no reference to the presence of immigration courts in the facility.

This all seems not only wrong but illegal. As I wrote to Komis, DOJ regulations require immigration courts be open to the public. How can EOIR justify having its courts in buildings the EOIR knows the public is not allowed to enter? The secret tribunals for the few hundred detainees at Guantanamo are bad enough, but what about secret trials for tens of thousands of US residents? (NOTE: I thought this was in a law passed by Congress, but it is actually a DOJ regulation; nonetheless these are the rules the government is supposed to follow and the EOIR is demonstrably not following its own regulation.)

The person who is usually super fast and largely helpful in responding to my queries suggested that she would have an answer. On Tuesday, March 30, in response to my following up on the query I'd written last Thursday, Komis wrote: "Please know that I’m still researching this issue with EOIR’s program experts….I’m hoping to have a response soon…Elaine"

The long-awaited response from the program experts arrived yesterday: "Regarding your query, please contact the Department of Homeland Security (DHS). DHS/ICE Public Affairs’ HQ telephone number is 202-732-4242….Elaine"

This is of course absurd. I'd already heard first-hand the DHS policy, as I reported last week: it wouldn't allow the public into its buildings without "preapproval" that required a criminal background check and would take two weeks. At the 202 number they told me to contact Lori Haley, an ICE public affairs officer in California. She wrote back and copied Virginia Kice, an ICE public affairs officer, and Vincent Picard; Haley's note told me to talk to Picard, an ICE public affairs officer in Phoenix, who had already told me he was not aware of what the DHS policy was and would get back to me. But he didn't.

Also disturbing is that the EOIR is not disclosing the name of the person who is making the decision to keep the courts closed. In response to my query on this point, Komis said I would have to submit a FOIA query and sent me the contact information for the right office.

Didn't someone run for president with a promise of transparency? Didn't some high-placed official in the Obama administration, revoking the old FOIA policy, call for openness?

Attorney General Eric Holder, now that you've saved a rich, corrupt, Republican, ex-Senator from prison due to prosecutorial misconduct, what about making sure that tens of thousands of people who cannot afford an attorney at least have judges whose work is open to public scrutiny?

In fact, what does it tell us about these judges that they are not themselves protesting these conditions? If they cannot guarantee the respondents in their courtroom the most minimum protection of an open court, then how can we even pretend that these same judges will provide them other due process protections?

One more question: why are the same people who were unhelpful in providing information about immigration law enforcement under the Bush administration still in place under the Obama administration? President Obama isn't using Dana Perino for his press secretary, so why are Lori Haley and Virginia Kice -- two DHS public affairs officers who have been spectacularly unhelpful and apologists for the worst ICE abuses -- still the public voices for immigration law enforcement?

(Who's On First: Right now EOIR has an Acting Director, Thomas Snow, and an Acting Chief Immigration Judge, Michael McGoings, and no Deputy Director.)

ICE Detention Centers Unlawfully Close Immigration Courts to General Public

Greetings from Florence, Arizona. This morning I was unlawfully denied access to the immigration courts at the Eloy Detention Center run by the privately-owned CCA and the Florence Detention Center, run by DHS.

Last year when I attempted to gain access to the proceedings for a US citizen ICE was trying to deport (Rene Saldivar) at the Eloy Detention Center (about 30 minutes southwest of here), I was refused on the grounds that only family members and attorneys were allowed in. At the time, I was not aware of the rules governing immigration courts.

A federal prosecutor in San Diego last fall informed me that immigration courts are supposed to be open to the public, and sure enough, 8 CFR § 1003.27 states:

PART 1003 - EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

subpart c - IMMIGRATION COURT - RULES OF PROCEDURE

1003.27 - Public access to hearings.

All hearings, other than exclusion hearings, shall be open to the public except that: (a) Depending upon physical facilities, the Immigration Judge may place reasonable limitations upon the number in attendance at any one time with priority being given to the press over the general public; (b) For the purpose of protecting witnesses, parties, or the public interest, the Immigration Judge may limit attendance or hold a closed hearing.

(c) In any proceeding before an Immigration Judge concerning an abused alien spouse, the hearing and the Record of Proceeding shall be closed to the public unless the abused spouse agrees that the hearing and the Record of Proceeding shall be open to the public. In any proceeding before an Immigration Judge concerning an abused alien child, the hearing and the Record of Proceeding shall be closed to the public.

(d) Proceedings before an Immigration Judge shall be closed to the public if information subject to a protective order under 1003.46, which has been filed under seal pursuant to 1003.31(d), may be considered.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 11572, Apr. 6, 1992; 62 FR 10334, Mar. 6, 1997; 67 FR 36802, May 28, 2002]

I arrived at the Eloy Detention Center this morning to attend the 8:30 a.m. hearings. The guard asked me if I was an attorney or a family member. I said I was a member of the general public and it was my understanding that unless a judge or detainee had specifically requested a closed hearing, the immigration courts were open to the general public. An attorney waiting to go in specifically invited me to a hearing for a client he was about to represent in the courtroom of Judge Phelps.

The guard called his supervisor and a man identifying himself as Captain Adams came out. He told me that I needed to be ""preapproved." I asked if he was aware that immigration courts are supposed to be open to the general public. First he said yes, and then he said no and left to get his supervisor.

The Director of Security Carey told me I needed prior approval from ICE before I could enter the detention facility. I asked him how I should obtain this, who in ICE should I contact? He said I could contact "anyone." I asked what I needed to submit to them. He said I needed to give them my social security number, my date of birth, and my address.

The guard at the desk gave me the phone number for the ICE agents running Eloy and said maybe I could have a phone screening and come the next day. As cell phones are not allowed in the Center I returned to the parking lot, called the ICE number for Eloy and spoke with Mark, an ICE supervisor. He told me that everyone entering the facility needs a background check and that can take two weeks: "The problem is that anyone with a felony or misdemeanor conviction in the last five years can be prohibited to come in for security reasons."

I told him it was my understanding that unless a judge had closed the proceedings, the law said that immigration courts were open to the general public. He repeated the security policy for the facility and added that even contractors entering needed these checks. I told him that under the law contractors do not have a right to perform work at a detention center, but the law says that the general public should be allowed access to immigration court proceedings.

I then drove back to Florence to try my luck at the detention center run by DHS. The guard seemed to think it wouldn't be a problem and said I needed to wait for an escort. After about 15 minutes he said his supervisor called and that it would not be possible for me to enter. He gave me the number for the Florence ICE agents and the agent there told me something slightly different from the agent at Eloy, that I needed prior approval from the agent in charge of the facility. He connected me to this person and I got the voice mail for what sounded like a Janet Ellison. I left a message. She has not returned my call.

After making the call, I asked the Florence guard if he was aware that immigration courts were supposed to be open to the general public. He was affable and said "Yes, I know. I thought it was going to go good but then they called a supervisor and they said, 'no, we're not letting her in.'"

An EOIR spokesperson informs me that when reporters try to gain access to hearings in ICE detention centers and are rebuffed, EOIR tells them that EOIR only controls their buildings and that reporters must coordinate arrangements with ICE if the hearings are in ICE facilities. I suggested that this was not legal and that the EOIR either needed to pull their hearings from the ICE centers or instruct ICE on the law regarding the public's access to immigration proceedings.

Immigration court for detainees, the most legally fragile population in the country, already resembles a kangaroo court. They are the main victims. Justice does not flourish in secret court hearings. But US citizens also have a stake in seeing how immigration law enforcement is being implemented in their name. Open courts are a crucial part of a functioning democracy. Before DHS Secretary Janet Napolitano and Attorney General Eric Holder throw legal residents out of the country for crimes and misdemeanors, they need to follow the law themselves.

Anti-War Arguments: Vietnam v. Iraq

For the last week of the "Law and Politics" course I teach, students attended a screening of "Weather Underground," a 2002 documentary by Sam Green that Obama's presidential campaign made relevant again for its interviews with Bill Ayers. (Ayers, a former key player in the Weather Underground and now a professor at Northwestern University Law School, was the guy whose acquaintanceship with Obama demonstrated the latter's inclinations to terrorism.)

One of the bits of the film that always strikes me is that the Students for a Democratic Society as well as the Weather Underground offshoot objected to the war largely because it was killing and maiming Vietnamese villagers by the dozens, hundreds, thousands, tens of thousands, and eventually millions.

Like Henry David Thoreau, and unlike the contemporary left rhetoric against U.S. occupations in Iraq and Afghanistan, the protesters in the 1960s objected to a war of aggression because they did not want to be cogs in a machine that was systematically crushing an innocent population, not because they were worried about the deaths of U.S. soldiers.

Here's what Thoreau wrote, in the essay now published as "On the Duty of Civil Disobedience" and originally titled "Resistance to Civil Government" (1849), an inspiration for Gandhi as well as Martin Luther King, Jr.--the reading is paired with their watching "The Weather Underground":

"Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents on injustice. A common and natural result of an undue respect for the law is, that you may see a file of soldiers, colonel, captain, corporal, privates, powder-monkeys, and all, marching in admirable order over hill and dale to the wars, against their wills, ay, against their common sense and consciences, which makes it very steep marching indeed, and produces a palpitation of the heart."

The injustice Thoreau had in mind was the war on Mexico and Mexicans on behalf of filibuster terrorists (mostly U.S. citizens) trying to establish slavery in northern Mexico in violation of its Constitution. He could not imagine U.S. citizens could rationally support this war and yet despite their objections, he noted that they still served in the army carrying it out. )

Thoreau and other writers never imagined that the government could attract this lemming-like support for imperialism and mass killing without a draft. Nor, one thinks, would they imagine that pacifists would support soldiers for their patriotic service. I know this is not fashionable but I have no patience for sympathy extended by commentators on the Left to "our soldiers" IN A VOLUNTEER ARMY when little is said about the people in the countries who did not choose to be invaded. And yet in their stress on the harms the wars are causing U.S. soldiers and their silence on the civilians killed by U.S. drones attacking homes in Pakistan and Afghanistan, the Left has capitulated to a cheap provincialism. Rachel Maddow and Keith Olbermann are indistinguishable from Rush Limbaugh in mouthing platitudes about people who have agreed to kill because they are either mercenaries or zealots, neither of which are motives worthy of respect from progressives.

A few days ago I asked students in my class at the University of California at Santa Barbara to discuss the difference between the anti-war arguments in the film and those by the Left today. The response paraphrased:

'The Vietnamese were Communists and this war is fought against terrorists. People in the United States in the 1960s were more open to Communism than they are today to terrorism.'

The course I teach is about theories of sovereignty and offered no information about the Vietnam War; my question was to provoke them to think about why there might be this disparity. The response, both illogical and inconsistent with historical facts, was fascinating to me. The only way that they could imagine an anti-war movement would stress the harms war caused non-U.S. populations was to impute to the U.S. public in the 1960s a sympathy to Communism! (They explained that the Left didn't need to worry about a Right that would attack them for these arguments because the U.S. public was open to Communism, unlike the contemporary U.S. public which is terrified of terrorism, so to speak, and will allow harms against anyone, except U.S. soldiers, apparently, to thwart this.)

But really the weird answer is because of a misleading premise in my question. There is no anti-war movement today. Although the anti-war movement in the 1960s and 1970s spoke on behalf of the Vietnamese under siege by the U.S. government, the fact that there was a draft perhaps made war politically salient to a student population (and their parents) that today finds it a remote sideshow.

According to the Revolutionary Association of Afghan Women, the source of the image above of graves being prepared for Masmo villagers killed by the U.S., Obama has been worse for Afghan civilians than Bush: In January they estimate between 78-83 civilians were killed by the drones he ordered into Pakistan and Afghanistan.

Perhaps the only way the U.S. public might care about the people the U.S. government invades is to make sure that our youth are also targeted as potential invaders. Hard to know if we would have had more war if our Presidents could call up millions at short notice (the worry of the U.S. Congress that ended the draft in 1973), or fewer, for the same reason.

Appellate Court Gives Go-Ahead to Sue Border Patrol for Deporting a U.S. Citizen

On February 20, 2009, the U.S. Court of Appeals for the Fifth Circuit in Texas reversed a district court decision (No. 07-40416). (
If Monica Castro, a U.S. citizen, can show that the Border Patrol Agents who deported her daughter, also a U.S. citizen, in violation of the Constitution and the law authorizing immigration enforcement duties, then Castro and her daughter should be compensated as mandated by the Federal Tort Claims Act. (For an article on the case background, see here; also, you can download the original complaint from 2006 as well as the appellant brief and appellant reply brief from 2007.)

In a case clouded by stereotypes and a typical government defense of haplessness, the Court majority cut to the heart of the legal question at stake: the Border Patrol, regardless of its sweeping powers over aliens, does not have jurisdiction over U.S. citizens. The majority writes: "here, the Agents concede they knew R.M.G. [the child] was a U.S. citizen" (p. 18), and hence they may be sued for acting outside the scope of their authority.

This decision cites a number of precedents on the relevance of the FTCA to the abuses of U.S. citizens by agencies in the Department of Homeland Security that apply to fact patterns in many other cases similar to this one, several of which I have described here (see esp. tags for David and NationArticleFacts). Indeed, the only unusual fact here is the custody dispute between the noncitizen father, who had R.M.G. in his custody when he was deported, though Monica Castro was also present and had alerted the Border Patrol to her daughter's U.S. citizenship and Castro's claim for custody.

In other words, in many other cases DHS agents have clear evidence of U.S. citizenship without distracting custody disputes, which should make suing the government even easier in those instances.

As I've mentioned before, this model of using the FTCA to curb government abuses is a third-best option. It does not punish the individual agents and it does not attack the roots of the border's absurdity and the resulting prejudices. The charges of false imprisonment and, essentially kidnapping, at the heart of Castro's suit deserve the attention of U.S. Attorney Generals. Once the agents realize the results of their abuses could be prison time, and not just an increased tax burden for the rest of us, then they might show more judgment and restraint.

And even this is the second-best option. The wisest policy for ending the border crimes of noncitizens and DHS agents alike would be to allow free movement.

The image above is from the Caller-Times.