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.


Sabastopol said...

Dear Jacqueline,

I find this story fascinating. But I am confused as to why David would have lost his citizenship if he signed a deportation order. Is it possible to lose your US citizenship once you have obtained it?
My understanding from reading your story is that David is a USC by virtue of his being born to a USC.
Couldn't he have gone to Mexico and used the same documents his father used in having his USC recognized in Mexico, and that David used in having his USC recognized in the US to apply for a US passport? Couldn't he apply for a passport even while in prison?
The travesties here are many. I can't believe ICE would insist on trying to deport a USC even when the judge had found that he was indeed a citizen.

jacqueline stevens said...

Hi Susan,
Thanks so much for your note. David cannot lose his US citizenship unless he goes through the complicated process of expatriation, but he and others who sign "voluntary" deportation orders can and do lose their citizenship rights, including the right to be in the country and to have the social benefits due US citizens. David's attorney is in the process of applying for the appropriate documents certifying David's citizenship but the timeframe did not allow this during the first deportation proceedings and it is difficult to do this from prison, and impossible without a lawyer or someone to assist one outside the prison.

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