Tuesday, June 19, 2007

Guzman v. Chertoff et al.

On June 10, 2007 lawyers from several offices of the ACLU as well as a San Francisco immigration law firm filed a lawsuit against Michael Chertoff, Secretary of the Department of Homeland Security; James T. Hayes, Field Office Director, U.S. Immigration and Customs Enforcement; Ronald J. Crame, Consul General of the United States; Leroy Baca, the Los Angeles County Sheriff-Who-Released-Paris-Hilton; and Robert Olmsted, Captain, Los Angeles County Men's Central Jail.

The suit states that there are "no circumstances under which an American citizen may lawfully be deported from this country," which brings up a difficult question pertaining to the Guzman lawsuit. It's bad enough that Guzman may have been deported illegally, but what if the deportation is legal?

The major precedent that the plaintiffs cite is Rivera v. Ashcroft, 394 F. 3d 1129, a case whose facts would have added another twist to the film Babel: Salvador Rivera is born in Portland, Oregon and has a birth certificate, but by the time he's 18 his legal history in this country is not a pretty one and he decides to start a new life as a Mexican immigrant, so in 1997 he buys a fake Mexican birth certificate with an invented last name and uses this as his official identification, including in the United States as a means of obtaining a Washington state driver's license and identity card.

The new identity brought Salvador no new luck. About a year later he was apprehended by the Border Patrol as an illegal alien. Rather than give his true identity and face prosecution, he maintained his cover as a Mexican and was deported in 1998, but returned to the USA shortly thereafter. Here's what happened next, according to the Ninth Circuit Appellate Court opinion:
Over a year and a half later, a Border Patrol agent interviewed Rivera at Skagit County jail in Washington. Salvador told the agent that he had previously been deported under the name Salvador Galvan-Gaspar, but that he was actually a U.S. citizen.

On December 12, 2000, Rivera was arrested by Border Patrol agents when he appeared for a parole hearing with the Washington State Department of Corrections. Rivera told the agents that he was a U.S. citizen, and that he had purchased a birth certificate in Mexico in the name of "Salvador Galvan-Gaspar." Rivera initially agreed to give a sworn statement to the agents as to his identity, but then refused after reading the list of questions that he was to answer. That same day, the INS issued a "Notice to Appear" alleging that Rivera was not a U.S. citizen.

To make a long story somewhat shorter, the INS decided that Salvador Rivera was not Salvador Rivera and that he was an imposter. As the Court pointed out in rebuking the INS:

First, the INS did not present its own version of the facts of Rivera's birth, presumably because, on the evidence before the IJ [Immigration Judge, in this case, Anna Ho], there was no other version that was plausible. No party has disputed that the Oregon birth certificate is an authentic State document; the only question is whether it belongs to Rivera or to some other person. The Mexican birth certificate is too similar to the Oregon birth certificate to also be authentic. The birth dates are the same, the mother's name (Eloisa Gaspar) is the same, and the first name "Salvador" is the same. Moreover, the other last name on the Mexican birth certificate, Galvan, is Eloisa's married name. If it were the INS's position that the Mexican document was Rivera's real birth certificate, and the Oregon birth certificate belonged to someone else, the coincidences would be staggering. The INS story would have to be that Mexican citizens "Eloisa Gaspar" and her son, "Salvador Galvan-Gaspar," went to the United States and discovered that another woman named "Eloisa Gaspar" had a son named "Salvador Rivera" born in Oregon on exactly the same date, and contrived to obtain "Salvador Rivera's" birth certificate. This set of circumstances is not out of the realm of imagination, but it is incredibly unlikely. Far more plausible is the explanation that the Oregon birth certificate belongs to Rivera, and that he simply had a Mexican birth certificate created with his own birthdate and own mother on it, but changed his last name to his mother's married name.

In the end, the Court used strong language to rule in favor of Salvador Rivera:

In short, a U.S. citizen cannot lose that status unless the government can prove that the person intended to relinquish citizenship. We can think of no reason why citizens illegally deported by the government should be exempt from that rule. Acceptance of deportation after an administrative hearing is not, in and of itself, proof that a person wishes to relinquish citizenship.

While the tone of indignation about the stupidity of the INS (now ICE) seems to bode well for Pedro Guzman, the case points out the dangers of the procedural wasteland in which U.S. law leaves aliens.

The cases are different because although Guzman was deported, ICE is not sticking to this view of Guzman's status and has conceded the validity of his birth certificate and hence the authenticity of his U.S. citizenship. In the one area where Guzman is claiming relief (via the suit filed by his brother), it is on the grounds of his denial of his Constitutional rights, especially to due process and habeas corpus.

The Rivera opinion points out that the Court's overturning of the INS determination was consistent with other cases in which they had deferred to the administrative decisions, and this is the part that is tricky for Guzman and any other U.S. citizen unfortunate enough not to have 24/7 legal counsel and the ability to stand up to guys with guns dragging them out of the country: actions taken by ICE do not require judicial review if the person against whom they are directed waives appeal and signs a document consenting to the deportation. As the Court notes in Rivera v. Ashcroft, describing the deportation of an alien:

Citing § 2241's [of 28 U.S.C.] requirements that a petitioner must be "in custody," we held in Miranda that a petitioner who has already been removed "cannot avail himself of habeas corpus jurisdiction." 238 F.3d at 1158. We also noted an exception to this rule: "under extreme circumstances," we have held that an immigrant already removed may still receive habeas review.

But the "extreme circumstances" refers to the violation of the judge's order, and not violation of the rights of a U.S. citizen:

The extreme circumstances exception arose in our decision in Singh v. Waters, 87 F.3d 346 (9th Cir. 1996). The INS had removed Singh in violation of a stay of deportation by the immigration judge and after interfering with Singh's right to counsel.

In short, Pedro Guzman was treated inhumanely, indecently, and clearly unjustly. But because he never insisted on a judicial review of his case, the decisions cited by Rivera v. Ashcroft seem to suggest that his habeas corpus rights may not have been violated.

The reason for this reveals the deep problem with immigration law, a special, partial law that kicks in once the government determines that someone is an alien, a status that puts them into a realm of medieval orders and despotic decisions. One final quote:

The Fifth Amendment right to judicial review of non-frivolous citizenship claims and the Fourteenth Amendment right to U.S. citizenship (absent voluntary relinquishment) are not violated when an alien making a frivolous citizenship claim is deported after administrative proceedings.

But the entire purpose of judicial proceedings is precisely to distinguish the "frivolous" claim from the legitimate one, a task that when left only to the idiots at ICE violates due process, at least if the person deported is a citizen. Clearly, as long as due process is only for citizens, not even citizens will be able to obtain this. Indeed it is telling of the utter breakdown of the rule of law that Guzman's own case is being handled by immigration lawyers, since of course Guzman is not an immigrant.

If the United States is willing to commit to international law for human rights, then there is something very strange in denying everyone in its borders equal treatment under a law that treats everyone equally. One easy way to change this is to grant everyone claiming citizenship the right to a trial. Expensive? Difficult to manage? Well, that's the cost of justice, and as St. Augustine said, "Without justice, what are kingdoms but great robbers?" On a more pragmatic note, it's still cheaper than preventing free movement. (Image of cathedral in the Prague castle Kafka made famous.)

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