Wednesday, August 27, 2008

Department of Homeland Security Withdraws Appeal to Deport US Citizen

Late Monday, August 25 attorney Neil Rambana received a notice from the Immigrations and Customs Enforcement (ICE) attorney in Atlanta who had been trying to deport his client, a US citizen, stating that she was dropping her appeal of the judge's second order terminating deportation proceedings.

Since 1999 ICE and its predecessor agency the Immigration and Naturalization Services (INS) have been trying to deport David (for more on the background, click on the the David tag below). This has meant that David has spent nine years misclassified as an alien in the Georgia prison system, enduring maximum security incarceration and the loss of liberty from being denied the parole process due citizens.

If not for the ICE detainer, David would have been eligible for parole in 2005. Now he is still in prison and a Georgia Corrections Officer told me yesterday that because David's entire sentence will be served within a few months, “the parole board will not ramp up machinery for parole with so little time,” a response that does not fit Rambana's plans to seek David's immediate release.

Rambana described his response to the DHS withdrawal of its appeal this way:
The way this reads, it identifies that he has met his burden of proof and is a US citizen, and it memorializes for us that he's been put through the ringer unnecessarily and that all those things he suffered as a result of the detainer while he was in in prison is because they pushed the envelope unnecessarily. When they recommend withdrawing their appeal, they are saying that the judge [who twice terminated deportation proceedings] is right. That is malfeasance or nonfeasance.

Rambana continued, describing what happened in 2006 after Rambana had obtained an order from an immigration judge terminating the deportation proceedings, which ICE appealed without notifying Rambana:
I'm angry and I know his family must be angry too. He's been put in a situation where his security level increased; he was in isolation; and he was treated as a second class person. This is very upsetting.

The most upsetting part is that they did this behind our backs when we were attorneys of record. We could have addressed this issue several years ago. It was as though this person's life and wellbeing wasn't worth anything and they don't care. That is unacceptable and someone has to put them on notice that you cannot look at people and because of questionable immigration status treat them as a lesser person. You're not seeing a human being as a human being. You're treating them as pariahs or lepers because of an immigration matter. This is a US citizen, but because you didn't give them the benefit of due diligence they must suffer. How can they not do this? Who has all the resources? They [the DHS] do.

The attorney who withdrew the appeal is on vacation but Rambana hopes to learn the reason for the reversal next week. David is very fortunate to have an attorney who has been able to fight off the DHS in its maniacal, relentless efforts to remove him from the country despite his US citizenship, but many, many others are not so fortunate. For more on these cases, see the NationArticleFacts tag below.

Tuesday, August 12, 2008

ICE Acts Like Gestapo: Black Shirts Try to Punish US Politicians for Calling ICE Gestapo

Aug. 6, 2008 – 11:28 p.m.

ICE Chief Calls for Congress to Discipline Lawmaker for 'Gestapo' Remark

By John Bicknell, CQ Staff

The head of U.S. Immigration and Customs Enforcement will ask Congress to consider taking disciplinary action against one of its members for a statement he made equating ICE agents with the Gestapo, a senior agency official said Wednesday. Luis V. Gutierrez , vice chairman of the House Judiciary subcommittee that handles immigration, has called for a moratorium on ICE enforcement actions until Congress passes a comprehensive overhaul, something it has failed to do in each of the past two years.

In a column written for Politico, Gutierrez, D-Ill., commenting on recent ICE arrests of illegal immigrants in Iowa, said: 'You know who is in charge now? The Gestapo agents at Homeland Security. They are in charge.'

A senior ICE official, speaking on condition of anonymity, said Julie L. Myers, the assistant secretary of Homeland Security for Immigration and Customs Enforcement, was 'absolutely appalled and deeply angered' by the statement. The official said Myers would send a letter to senior members of Congress asking that disciplinary action be taken against Gutierrez' for his remarks.

Another official, Jamie Zuieback, director of congressional affairs for ICE, went on the record.

'It's not OK,' Zuieback said. 'Aside from being demeaning to the law enforcement officer
s that uphold the very laws passed by Mr. Gutierrez's Congress, it's potentially dangerous. No member of Congress should be encouraging the public to defy or demean federal law enforcement officers. Words matter.'

A call seeking comment from Gutierrez was not returned. Similar comments from the immigration activist community are not all that uncommon, and at least one other Democratic House member has made a similar remark. At a February hearing, California Democrat Sam Farr , assessing ICE's tactics, said, 'What happens is the public image of you becomes one of not this compassionate law enforcement agency but essentially a Gestapo-type agency that is knocking on doors.'

At that hearing, Myers responded by saying 'Congressman Farr, we are not the Gestapo, and I will not listen to you call . . . us Gestapo.'

A version of this story originally appeared on CQ Homeland Security.

Thanks to Rachel Rosenbloom, Supervising Attorney at the
Post-Deportation Human Rights Project for bringing this story to my attention.

Image from blog noting Gestapo tactics of ICE raids.

Monday, August 11, 2008

The Epistemology of Race and Citizenship

The State Department absent proof in individual cases, has been using the possibility of fraud in a particular region to deny citizenship documents to Mexican-Americans born in this country.

According to an article by Miriam Jordan in today's Wall Street Journal, Juan Aranda's
birth certificate says he was delivered unto Weslaco 38 years ago, and church records say he was baptized here soon after. School files list him as a student in the local district from kindergarten through high school, and voter rolls show he votes for president here. But to the U.S. State Department, all that black and white looks a lot like gray. It recently refused to issue Mr. Aranda a passport; the government isn't sure he's an American.
While the possibility of fraud may require vigilance in certain areas of the country among US Citizenship and Immigration Service agents, that is different from categorically questioning the birth certificates of all comers born in a certain region, especially when they present other documentation.

Any epistemologist knows there is no such thing as metaphysical certainty of anything. Either the US government must prove in individual cases that the documents it is receiving are fraudulent or they must grant the appropriate citizenship documents. Anything else is a violation of due process as well as the equal protection clause.
(Thanks to my colleague at UCLA Joshua Dienstag for sending this my way.)

Friday, August 8, 2008

California Prisons and Jails Deny Due Process to Citizens and Legal Residents

As discussed in yesterday's post (August 7), the 1994 Crime Bill and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act incentivized states to reclassify their inmate populations as aliens. The 1994 program designed for early parole on condition of deportation for nonviolent aliens turned into program of the federal government paying states to hold aliens for their normal sentences, or even longer. And this program provides no protections for citizens and legal residents who are misclassified. They too were put in maximum security prisons; held in detention centers; and in some cases, deported.

Here is some more information on how this was established in California.

The Texas legislative analyst's 1994 report Identify All Incarcerated Illegal Aliens and Deport Eligible Nonviolent Criminal Aliens was written to inform the Texas legislature on how other states had been handling their alien inmate population, and to asses the potential fiscal impact of signing up for the alien identification and deportation program with the federal government.

Here's what it says about California:
California's Department of Corrections reports that its process of identification goes far beyond self-reporting. An official in its Classification and Institution Division stated that caseworkers look at court records, "rap sheets," probation officer reports and other forms of identification, including Social Security cards and birth certificates. If there is any doubt about citizenship, the inmate is referred to INS for further review. Basically, California's policy is
that, unless inmates can prove they are U.S. citizens, they are referred to INS, which will screen and identify those it deems to be deportable.

This is a denial of due process for everyone, and clearly illegal in the case of those inmates who claim citizenship based on birth in the United States.

That this policy has continued through today in California is suggested in LA Sheriff Department's Officer Al Woods in his June 14, 2007 affidavit included in the government's responses to the habeas petition filed by the Southern California ACLU on behalf of Peter Guzman in June, 2007. In that document, Woods acknowledges that Guzman had told the police who arrested him and the agents who admitted him to the jail that he was born in California.

This is a remarkable statement, in which Woods is admitting that the LASD routinely breaks the law. Regardless of Woods' unsubstantiated assertion that “illegal aliens often times falsely represent their place of birth” the law requires that the assertion of birth in the United States puts the burden of proof on the government to show otherwise. The admission that Guzman “stated he was born in California” absent any other proof otherwise means that there were no reasonable grounds for suspecting Guzman was lying, and therefore no grounds for coercing him into signing a “voluntary” deportation order other than the illegal ones of racial profiling, incentivized by the compensation to local jails for housing criminal aliens.

Moreover, the jails and prisons who profile aliens and continue to house them are violating Congress's admittedly bad intentions. The 1996 IIRPA legislation, in explaining the desire to revise bilateral treaties to deport criminal aliens, states: “It is the sense of the Congress that the focus of negotiations for such agreements should be (A) to expedite the transfer of aliens unlawfully in the United States who are (or who are about to be) incarcerated in United States prisons.” The measure specifically calls for the treaties to end the requirement of prisoner consent to these transfers.

However, as was the case for David in Georgia, Guzman was not transferred to a Mexican prison but served the same amount of time in the LA County Jail as other prisoners would serve.

The only difference between the sentence of Guzman and other inmates with US citizenship in the LA County Jail is that Guzman (and Robert, and other US citizens wrongfully deported to Mexico whom I profiled in “Thin ICE”) had alien classifications leading to substantial federal dollars to the local and state prison systems, as discussed in yesterday's post.

(Note: I was planning to post the habeas petition on behalf of a Maryland inmate who is a US citizen but was misclassified as an alien without due process by the Maryland prison and then Department of Homeland Security. However, since sending me the information, the attorney has expressed a desire to consult his incarcerated client for permission to publicize his situation; I am respecting the attorney's request not to post the habeas petition until that has been obtained or the hearing has been held, whichever comes first.)

Photo by Don Bartletti, LA Times.

Thursday, August 7, 2008

How Early Release Turned into Indefinite Detention: Criminal Alien Laws from the 1990s

I've been writing this summer about David, a US citizen who should have been paroled in 2005 but continues to be held in Hancock State Prison in Sparta, Georgia because of wrongfully initiated deportation proceedings that have twice been terminated by an immigration judge. Nonetheless, the Department of Homeland Security attorneys continue to appeal and the Georgia Correctional Authority continues to hold David. (To read more on this case, see yesterday's post and also the posts tagged David.)

Why is this Happening?

Yesterday's post ended with a quotation from David's attorney's response to the DHS appeal charging them with failure to carry out their duties as government officials to the rule of law and justice. Neil Rambana alleged a procedural quagmire depriving David of his liberty.

Why the quagmire? What kind of quagmire is this, exactly? It turns out that David's situation is not an esoteric anomaly but symptomatic of a quiet scheme whereby state prisons and the INS and now DHS were collaborating to rip off the federal government and deport aliens without due process.

As readers of “Thin ICE” may have noticed, some of the detentions of US citizens I describe were occurring before 9-11. The mechanisms for deporting US citizen are not the result of a newly over-vigilant DHS but were put in place during the Clinton administration.

In 1994, just before the elections that gave Republicans a majority and elevated Newt Gingrich to Speaker of the House, Congress passed the most expansive and expensive crime bill in history. One key part aimed at deporting aliens who were convicted of a felony. The ostensible goal was budgetary: in exchange for identifying criminal aliens and targetting for early parole on condition of deportation those convicted of nonviolent offenses, Congress was going to reimburse the state prisons and jails for alien inmates. The funds appropriated for this purpose alone were enormous:
`(A) $130,000,000 for fiscal year 1995;
`(B) $300,000,000 for fiscal year 1996;
`(C) $330,000,000 for fiscal year 1997;
`(D) $350,000,000 for fiscal year 1998;
`(E) $350,000,000 for fiscal year 1999; and
`(F) $340,000,000 for fiscal year 2000.

The program has been reauthorized and is now called the State Criminal Alien Assistance Program.

Subsequent authorizations were between $250 and $565 million per year.

In other words, Congress wanted to give states an incentive to identify and deport criminal aliens. The outlay in federal expenditures, the thinking went, would be dwarfed by the savings from states not having to care for another country's criminals. A requirement for the funding is that states house all those classified as criminal aliens in maximum security facilities.

Even before the measure was implemented it was clear that the states realized that this was a huge bonanza for them, and that the big money was not going to be from the early release of inmates, but from the federal funds coming to them once they identified their inmates as aliens. Here's what the Texas legislative analyst wrote of the program in the 1994 Identify All Incarcerated Illegal Aliens and Deport Eligible Nonviolent Criminal Aliens:

The recently passed federal Violent Crime Control and Law
Enforcement Act of 1994, popularly known simply as the "Crime Bill," creates an additional incentive to identify all incarcerated illegal aliens. The bill provides that the federal government will compensate states and local jurisdictions for the average cost of incarceration of undocumented criminal aliens.11 Any enhancement to TDCJ's current method should improve its ability to properly identify undocumented aliens.

Later the report states:
The major gains to general revenue would be in the form of additional federal aid received under the Crime Bill for compensation to the state for the incarceration of illegal aliens.

In 1996, this measure was further strengthened through the Illegal Immigration Reform and Immigrant Responsibility Act, a law designed to harm immigrants in many ways, including by depriving them, and therefore also citizens, of due process rights during immigration proceedings. The bill lowered the threshold for deportation to a felony OR two misdemeanors, and it added language bolstering the criminal identification and deportation program:
“To the extent of available appropriations, funds otherwise made available under this section with respect to a State (or political subdivision, including a municipality) for incarceration of an undocumented criminal alien may, at the discretion of the recipient of the funds, be used for the costs of imprisonment of such alien in a State, local, or municipal prison or jail.” (Sec. 328).

The bill further states that “Of the $130,000,000 appropriated in fiscal year 1995 for the State Criminal Alien Assistance Program, the Department of Justice disbursed the first $43,000,000 to states on October 6, 1994, 32 days before the 1994 general election, and then failed to disburse the remaining $87,000,000 until January 31, 1996, 123 days after the end of fiscal year 1995.” This section goes on to complain that the States are owed $66,000,000 in funds for housing “documented illegal immigrant felons,” when in fact the people identified as “illegal” were never given hearings before this designation was assigned. (Section 328).

If Congress only pays for aliens, then the state prisons can ask the federal government to pay for anyone's incarceration by designating them aliens. Since there are no hearings to determine or even appeal this, the only losers are the inmates. (Section 250 gives the INS the authority to deport people who have records of criminal convictions and Section 328 provides the rules for implementing this policy through the prisons.)

Sure enough, this is exactly what happened to David, giving Georgia Correctional Authorities an incentive to not only misclassify a US citizen as an alien, but also to hold him for a period longer than he would otherwise be incarcerated. Each day David is held means more money going to the Georgia state prisons.

The evidence for this is as follows:

-The Notice to Appear form used for David's initial reclassification in 1999 was printed in 1997 by the INS as part of “removal proceedings under section 240 of the Immigration and Nationality Act,” relying on the section allowing for the use of state records of a criminal conviction to be grounds for the removal of aliens.

-The form used for David's parole is one that was issued in 8/95 and titled: “Order of Conditional Transfer to I.N.S. Detainer, with Detainer.” Its language is consistent with the 1994 law.

It states that the Georgia State Board of Pardons and Parole has been

“informed by the United States Department of Justice Immigration and Naturalization Service that the subject of this Order is an alien subject to deportation, and the Board finds the welfare of the citizens of Georgia and the orderly administration of this state's penitentiary resources would be best served by an action allowing the subject of this Order to depart Georgia custody for the sole and limited purpose of enabling such actual deportation action to occur.”

The order concludes, “Failing actual deportation, the subject of this Order shall be returned to Georgia custody to resume service of all sentences without credit for the time lapsing while out of Georgia custody.” This means that David's prison sentence could be extended an additional 8 months, the amount of time he was released for deportation proceedings into ICE custody.

-If the incarceration of 8 years for a prison sentence of ten years for a nonviolent crime is not sufficient evidence in itself of Georgia pocketing the federal per diem money for housing aliens, rather than releasing them early, then perhaps the direct statement of a Parole Board officer should suffice. In mid-July, before I saw a copy of David's "early" parole on condition of deportation order, I had been asking various Georgia prison officials whether aliens who were paroled on condition of deportation were paroled and deported earlier than they would be if they had been citizens, or whether they served the same length in prison that they would serve if they were US citizens.

Most prison officers said they had wondered about this themselves and didn't know. But when I finally found someone in a policy-making position in the Parole Board office, here's what he said: “If the Parole Board in Georgia makes a decision to grant parole, they don't make it earlier than what it would be if they do not have an ICE detainer.” He reiterated the point later in the conversation, as I was asking about the particulars of David's case, “Just because they have an ICE detainer does not mean we will consider them [for parole on condition of deportation].” This is a direct violation of the federal law under which Georgia is receiving compensation for their criminal aliens.

During this conversation, I pointed out the contradiction of this officer conceding that for David to be paroled on condition of deportation he would have had to have served his entire sentence and him also stating that David would be reincarcerated rather than released after the judge issued an order terminating his deportation proceedings.

If they only release people for conditional parole who have served out their sentences, then on what grounds can these people be returned to prison if ICE does not deport them?

His reply: “This conversation is over.”

After reading the language of the so-called early deportation orders, the travesty of law and justice become even more clear. Georgia is using David to line the coffers of their prison system. Georgia saves money only if it releases people classified as US citizens. It earns money by holding people it helps ICE classify as aliens, even if these people are also US citizens denied due process necessary for them to maintain their citizenship rights, including at minimum protections again wrongful imprisonment.

Tomorrow: Habeas petition filed for Maryland inmate in similar situation.

Wednesday, August 6, 2008

US Citizen Continues to be Wrongfully Imprisoned

In June 2008, Neil Rambana, an immigration attorney in Tallahassee, contacted me about a client who was being held in deportation proceedings in Georgia, even though an immigration judge had issued an order terminating deportation proceedings in 2006. Over the next couple of weeks I posted a few pieces about the case of the man I'm calling David, which you can find by clicking on this tag below.

As I continued doing my research I realized that just as US citizen Peter Guzman's 2007 removal to Tijuana was a symptom of ICE detaining and deporting thousands of US citizens, David's wrongful classification turns out to be a symptom of a widespread practice of prisons gaming laws that Congress passed in the 1990s. Prisons classify their inmates as aliens and then receive hundreds of millions of dollars from the federal government, with no safeguards for those who are actually US citizens.

This posting describes what happened to David. Tomorrow's will show how it fits a nationwide pattern. (Meanwhile, the report documenting the political screening of immigration judges and DHS prosecuting attorneys is here.

David's Story

In 1998 David began a ten year prison sentence for a nonviolent crime (omitted for reasons of privacy) at the privately run Coffee Prison, a medium security facility in Georgia used for inmates posing a low risk of violence or flight. Prison blogs are generally favorable about the conditions there. As Georgia prisons go, Coffee isn't that bad.

In 1999, the INS classified David as an alien and initiated deportation proceedings against him.

David, however, is a US citizen at birth by operation of law, and has the documents to prove this, as he has done twice to the satisfaction of an immigration judge. David's father, José, now deceased, had a birth certificate showing he was born in Los Angeles in 1925. Similar to another case I describe in “Thin ICE” (The Nation, June 23, 2008), José's family returned to Mexico in the early 1930s. This was during period when immigration agents were illegally removing legal residents and US citizens with Mexican ancestry, a phenomenon documented in a contemporaneous government report published in 1931, as well as by historians today (for more on the link between these earlier illegal deportations and those of today, see this post).

José married David's mother and fulfilled the other requirements that would allow his Mexican-born children to be US citizens at birth by operation of law. In 1989, when David was 15, he went to the US Consulate office in Mexico and presented the relevant documents. The American Vice Consul signed a document indicating that David had “registered at this office as a citizen of the United States, having acquired United States citizenship by birth under Section 301(g) INA 1952.”

David then joined his other siblings in the US and used these papers for the purposes of marrying his wife and bestowing US citizenship on her as well. In other words, David has documentation of two different immigration agents in two different time frames, one in Mexico and another in the US, accepting his documents as proof of his citizenship.

According to David, an immigration agent told him that a corrections officer at Coffee had contacted Immigration and Naturalization Service (INS) in 1999 to request the immigration hold. David writes, “You can prove he is lying because he didn't want to take my fingerprints or even a picture. Thanks to this hold I had to do seven years of my sentence at a high security level prison because of the hold I had from immigration.”

There are several problems with this policy but perhaps the most glaring one is that there is no due process for appealing the classification. INS and now ICE puts the hold on the inmate and the earliest this can be appealed is when the prison releases the inmate into the deportation process, after the damage of their reclassification has occurred.

A Georgia Corrections agent who works in the Georgia Correctional Authority Classifications office told me that once ICE notifies their office of an immigration hold, the inmate is automatically reclassified as high security. I asked what the person could do if he is a US citizen, if there were any appeal process within the prison. I was told that the only way the Classifications office would change the status is “if immigration contacts us and says they're a citizen. Immigration has to tell us.”

I asked about the inevitable delay before this would occur, that the sentence would be over before an opportunity to change the status. Her response: “We just have to wait until the outcome. We don't say this person's wrong or right; we just wait until the final outcome.” This is a bizarre reply. The reclassification is indeed privileging the assertion of the government's claim that the individual is an alien and ignoring the citizen's protest against this without any due process.

For David, it took seven years of him waiting in a maximum security facility for him to prove that he should never have been incarcerated this way, and even now this proof has not been sufficient for him to be released and he remains incarcerated with an immigration hold.

A complicating fact in this narrative was the 90% policy Georgia initiated in 1998, requiring anyone convicted of almost any felony, including nonviolent ones, to serve 90% of their sentences. A judge eventually ruled this unconstitutional, and in 2005 David received a form letter from the Chairman of the State Board of Pardons and Paroles informing him of this:
“A Fulton County Superior Court judge recently signed an order ruling that the Parole Board's 90% policy, adopted in 1997, was 'implemented improperly and as a result is ineffective and has no force or effect.' After consulting with the office of the Attorney General, the Board has decided not to appeal the decision and to apply the ruling to all cases previously considered using the 90% policy.”

The letter informs David that he will be evaluated for parole based on his “grid score,” which in light of all the certificates and other commendations in David's file, must have been quite high. The letter also said that because of the large number of inmates affected, there would be delays in evaluating the cases—hardly respectful of the important liberty interests at stake.

In the event, in late 2005, eight years into David's sentence, the Board granted David “parole on condition of removal.”

The order was called an “Early Release” even though David was not being parole early, but by the state's own account, he had been held too long! (Apologies for being mysterious here but David's attorney, Rambana, requested that I not reveal the crime. I can say that it is nonviolent, victimless, and virtually never charged.)

David's sister told me that David had been in touch with her to obtain legal representation for this. Rambana's firm provides pro bono representation and he accepted the case. In August, 2006 Rambana thought his work was done. The immigration judge William Cassidy issued an order terminating deportation proceedings and Rambana assumed David would be released.

After ICE lost the case, they did as they normally do and appealed the adverse decision. This meant that the immigration hold continued. Due process required that ICE notify David's attorney, Rambana, of any further action but this never happened. ICE sent their appeal to the Board of Immigration Appeals and withheld notice of this from Rambana.

During this period, according to David's sister Erica, David was desperate to be released and repeatedly said he was going to sign the deportation order, just so he could leave the prison where he'd been for almost 9 years, even if that meant losing his citizenship rights and being sent to Mexico. Erica tried calling the parole office to find out what was going on but no one answered the phone and when someone finally called her back she began to cry in frustration.

Erica, who works in animal control in southern California, expressed her frustration at the absence of the rule of law, complaining that every time she spoke to a different person she was told a different story, “One day I tell them, this does not depend on what officer I get, but what the law is. No matter who I talk to, I should get the same answer.”

Erica also told me about David's threat to sign out: “We said, no, you don't resign. You've already been in there 9 years, just one more year.”

In March 2008, the Board of Immigration Appeals, which, like ICE, has been documented as being illegally staffed by political appointees, instructed the judge to hold a new hearing and issue his decision in writing. This is the order that was sent to Rambana's office, alerting him 19 months after he thought his client had been freed that David still was in deportation proceedings and still being held in prison.

It is unconscionable that it took the BIA this long to act on the appeal. The delay is itself part of the coercion used to pressure detainees to sign out. The absence of a decision is not neutral but gives the power of a punishing imprisonment to ICE, which uses this to pressure detainees to drop their appeals and be released in a foreign country. Although David was physically in the custody of the Georgia prison, this was only because of the ICE detainer. Absent the INS hold, David would have been paroled and out of prison at the end of 2005.

That neither ICE nor the BIA are especially interested in the law here can be seen by their failure to adhere to the burden of proof requirements for deportation cases. According to the law established through BIA and Supreme Court precedents, once a foreign-born person claiming to be a US citizen produces reasonable evidence substantiating a claim of US citizenship, then the burden of proof shifts to the Government show otherwise.

The DHS appeal of the first termination order does not even come close to providing this proof. Instead it raises allegations of the possibility of fraud and illegality that any skeptic could raise about any document, and provides not a single scintilla of evidence challenging their authenticity. For instance, after acknowledging that David had submitted a copy of a card recognizing him as a US citizen to the court, the DHS states, “there is no indicia of reliability in such card.” First, so what? The law does not require people to have US passports or fraud-proof certificates of citizenship, just reliable evidence of citizenship in any form. David presented copious documentation in the form of receipts, envelopes, and notarized, dated stamps indicating that this was a genuine card that had been issued to him in 1989. David also submitted his father's US birth certificate and death certificate—both indicating US citizenship—and documentation of his father's paystubs showing residence in the US for the requisite time frame.

The DHS states “This scant, unauthenticated evidence, cannot serve as a basis for the determination of Respondent's citizenship.” This is demonstrably false since the documents were authenticated by a notary and because an immigration judge had judged this evidence sufficient to determine David's US citizenship. Moreover, DHS provided no counter-evidence other than its own epistemic authority to decree its doubt. This is not proof but bullying. The immigration judge seemed to agree and on June 11, 2008 reaffirmed his first ruling terminating the deportation proceedings.

Sit down. DHS appealed AGAIN. In this appeal, submitted on June 12, the ICE attorney stated that the immigration judge had not complied with the BIA decision directing a new hearing with a transcript. There is not a shred of evidence proffered to indicate that David is not a US citizen, only a delaying tactic without substantive foundation to deprive David of his liberty.

In his reply to this appeal, David's attorney, Rambana, lashed out at the reckless disregard for lawfulness on the part of the DHS:
“[During the course of his removal proceedings DHS counsel's obligation to see that the law was observed was not fulfilled. 'Counsel for the government has an interest only the law being observed, not in victory or defeat in any particular litigation.' See Reid v. INS, 949 F.2d 287 (9th Cir. 1991). See also Freeport-McMoRan Oil and Gas Co. v. F.E.R.C., citing the ABA Code of Professional Responsibility holding government lawyers to a higher standard than private lawyers and finding 'it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an applicant into submission.' Freeport-McMoRan Oil and Gas Co. v. F.E.R.C., 962 F. 2d 45, 48 (D.C. Cir. 1992). In the instant case, the truth of the matter is that the government wins when justice is done. Matter of S-M-J, 21 I&N Dec. 722, 727 (BIA 1997). However, here, the Respondent who should have been aided in obtaining any procedural rights or benefits required by the statute, regulation or a controlling court decision was left to linger in the procedural quagmire of DHS.”

For an explanation of the national policies driving this, please read tomorrow's post.

Tuesday, August 5, 2008

43 Years Ago Today at 7:15 pm EST...

the United States government's Enola Gay airplane dropped nuclear bombs on Nagasaki and Hiroshima, instantly killing tens of thousands and leaving hundreds of thousands to die from their internal and external radiation burns. The United States, which recently invented the Weapons of Mass Destruction excuse to invade Iraq, has been the only country to use nuclear weapons in war, and the only country to kill such a large number of civilians in a single attack.

Here's what one US citizen wrote in his letter to Time magazine on August 6, 1945:
The United States of America has today become the new master of brutal infamy, atrocity. Bataan, Buchenwald, Dachau, Coventry Lidice were tea parties compared the horror which we, the people of the United States of America, have dumped on the world in th form of atomic energy bombs. No peacetime applications of the Frankenstein monster can ever erase the crime we have committed. We have paved the way for the obliteration of our globe. It is no democracy where such an outrage can be committed without our consent!

Walter G. Taylor of New York City
#End read more