Tuesday, December 23, 2008

An Interview with David, Wrongly Classified as an Illegal Alien Based On Racial Profiling

This is a story about how one man, David Lopez (names are fictional unless otherwise indicated), a US citizen, came to endure the racism, lawlessness, and stupidity of US immigration agents, leading to his incarceration by the Immigration and Customs Enforcement Agency (ICE) and a removal order to Mexico, even though ICE has no jurisdiction over US citizens.

As opposed to previous accounts on this blog (you can find by clicking on the David tag), this one is based largely on an interview I had with David on Thursday, December 18, 2008, the day after receiving a message from David's attorney, Neil Rambana, that he had just received David's Certificate of US Citizenship.

This post focuses on one case of a US citizen illegally detained by ICE to show how the mandatory criminal deportation policy and its implementation are fraught with civil rights and other Constitutional violations. Elsewhere on this blog and in The Nation I have shown that one consequence of this law, the deportation and detention of US citizens, is widespread.

The post here also indicates the points at which David's narrative invites legal remedies that might include a Bivens complaint, a lawsuit under the Federal Tort Claims Act, and criminal prosecution for kidnapping and false imprisonment.

David's Story: US Issues Illegal Removal Orders for US Citizens of Hispanic Descent

In 1998 David ignored the advice of his sister Esther and took the rap for a nonviolent crime to protect another sister, Anna. Anna, in her mid-40s, was 20 years older than David and in poor health. David thought he'd be sentenced to 3 years in prison, max. But instead he found himself with a ten year sentence, hoping for an early parole. Fortunately, he'd be in the Coffee Prison, a low security private facility for inmates with nonviolent records.

Or so David thought. In the middle of the night in 1999 the guards woke him up and told him he was being transferred. David said, "I thought I was going to another minimum security prison, but they sent me to close security. I was afraid because it was more dangerous. In close security you have the murderers, rapists, people with life sentences. There are a lot of people with nothing to lose." (David is living in El Paso, Texas with his elderly mother. We spoke by phone.)

The guards who transferred him to Hancock Prison didn't tell him why he was going there. He learned from a prison counselor the next day that it was because of an immigration hold that Carlos Cabrillo had put on David while he was in the Jackson Diagnostic intake center in 1998.

I asked David how he was picked out to have an interview with Cabrillo and he described how the immigration agents in the prison used illegal racial profiling: "They take all the Hispanics. That's the way they do it, if your name is Hispanic. It doesn't matter if you're Puerto Rican, whatever." This is exactly the same screening procedure that Robert said occurred in the L.A. County Jail in 2001. (Robert is a US citizen who was deported twice to Mexico and served 3 years for falsely impersonating a US citizen. You can read about him in the NationFacts tagged posts.)

In 1998 David told Cabrillo that he was a US citizen and had been documented as such by the US Consulate in Juarez in 1989 when he was 16. David's father was a US citizen and fulfilled the other requirements necessary to convey citizenship to his children born in Mexico. "They said that I was a new citizen," David told me, and gave him a consular identity card indicating his US citizenship. "They didn't say nothing about registering." That's because the US does not keep such a list and there would be no reason to expect that David or anyone else in prison would have with them evidence of US citizenship.

Unlike the other Hispanic-named inmates at the Jackson Diagnostic Center that day, David was not fingerprinted or photographed. He thought Cabrillo believed him. "He led me along," David said.

The next time he saw Cabrillo, David was in the Hancock Prison, the close security facility, shortly after he was transferred. Cabrillo was telling David that he needed to prove his US citizenship, otherwise the US government would continue to classify him as an alien. "I told him, 'I'm in prison. Whatever I told you is all I can give you. I gave you my social security number. My ex-wife is a permanent resident because of me. All you have to do is go to the immigration building!'" David was appalled by Cabrillo's refusal to consult his own immigration bureaucracy for the relevant paperwork in such an important matter that should have been easy to resolve. "I really don't think he did a thing to find out."

Cabrillo's only duty as an immigration agent in the Georgia prison system was to ascertain the inmates' citizenship. This is not a discretionary activity for a prison-based immigration agent, but the only purpose of his employment. By failing to consult the relevant authorities whom David had clearly specified, Cabrillo did not carry out the congressionally designated duties for the program that had funded him.

This is the first of several violations of David's civil rights that seem to trigger government liability under the Federal Tort Claims Act (FTCA) 28 U.S.C. sect. 1346b, as well as a law that provides damages if government employees violate Constitutional rights (42 U.S.C. sect. 1983).

Under FTCA, the common law "sovereign immunity" defense is not available to the federal government for tort liability in the case of:
injury or loss or property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. sect. 1346(b).

There are several exceptions to the FTCA but none of these obtain in this case. The most frequently used exception is for duties in which the employee is exercising a "discretionary function" for actions that may but need not be construed as government obligations under law. But this could not be a defense in this matter.

Relatedly, US law requiring the burden of proof for foreign-born citizens in deportation proceedings does not change Congress's intent to support a prison-based program for initiating these proceedings against criminal aliens, not US citizens.

In other words, the only reason that David encountered an immigration agent was because Congress had decided to deport criminal aliens from US prisons. The absence of any process for David to challenge a misclassification from prison -- because there was no process to do so until after his sentence had been served and because he had no legal representation -- only increases the expectation that the immigration agents exercise due diligence in their assessments. At the very least this would seem to require consulting records in their own databases.

Furthermore, the malfeasance leading to David's illegal detention is not protected by the intentional tort exemption. The exemption does not cover "investigative or law enforcement officers," defined as those who are empowered to "make arrests under federal law." This encompasses one of the duties of immigration agents and the one that led to the detainer. And again, the initial violation of the immigration agent was the malfeasance in duties leading to the initial misclassification, which is not an exempted intentional damage.

In addition, Cabrillo's decision to screen based on Hispanic names is a violation of David's civil rights, subjecting him to deportation procedures only because of racial profiling. This seems to trigger what's known as a Bivens action, in which federal employees may be sued for violating someone's constitutional or other legal rights. In this case, the misclassification of David as an alien violated his due process and equal protection rights. Moreover, these violations occurred in the context of an agreement with Georgia authorizing immigration agents to work under color of state as well as federal law, in this case, the ability to screen inside state prisons under the State Criminal Alien Assistance Program.

This state agreement authorizing the federal agent work in the Georgia prison would seem to directly trigger the provisions of 42 U.S.C. 21 sect. 1983.

The usual Bivens exceptions do not apply. There is no other available remedy for the violations of David's Constitutional rights and Congress specifically excluded a judicial remedy (by not allowing for a judicial appeal of a deportation order prior to time served). Moreover, it is clearly in the interest of good public policy for immigration agents to have an incentive to not deport or hold in detention US citizens.

In short, Cabrillo's initial malfeasance in screening David seems to fall squarely under the umbrella FTCA violations -- for negligence in performing a basic bureaucratic duty that would trigger a tort if committed by a bureaucrat in a private firm, say an insurance agent who failed to search for records in the company database of previous patient care authorization, resulting in adverse consequences for the patient.

But this is just the beginning.

After his interview with Cabrillo at Hancock Prison, David was sent to an even worse prison, Telfair. David said that at the time it was a "punishment camp" and the conditions were especially harsh. David didn't know why he was sent there. Most likely it was because of the 1994 Crime Bill, touted as a major bipartisan achievement for Rahm Emmanuel and the Clinton White House. That bill first funded the ongoing State Criminal Alien Assistance Program. As a condition for federal reimbursements for alien inmates, states had to promise to house all alien inmates in maximum security prisons.

David's name still appears in the Georgia State SCAAP registery submitted for federal reimbursements. David is listed in the November, 2008 registry as someone who has claimed Mexican citizenship, months after his deportation proceedings were dropped by the DHS.

In the event, after David was misclassified and moved to Telfair, he enlisted his sister Esther and his mother to gather the federal government's documents that it had issued to David and his ex-wife, and send them to David so that he could send them back to the same agency. In 2002 he sent the Atlanta immigration office the same documents that in late 2008 were used for the purpose of his recently issued certificate of citizenship.

Back in 2002, David waited. Nothing. He waited some more. Still nothing. He waited a few years, and then finally in December, 2005, he received a letter from the Georgia Department of Corrections informing him that as a result of a lawsuit it had lost, it was no longer able to enforce a policy of making inmates serve 90% of their sentences. He was going to be released. That was the good news.

The bad news: David was going to be deported to Mexico. In February 2006 he was moved to the top floor of an Alabama jail Etowah County had leased to ICE. He met an ICE agent who asked David, "Do you want to be deported or see the judge?" David said, "He told me 'You're not a U.S. citizen.' Then he opened the file, what I sent in 2002, and said, 'Wow, you're really an American citizen. What are you doing here?' He really got surprised." David told the agent that the reason this happened was "'You never looked at the papers. You never pay attention to what I sent you.'" The agent told David that he'd have to go see the judge.

So this triggers the second series of unlawful abuses of David's rights. ICE has no jurisdiction over US citizens. The minute the agent David met in Alabama recognized David as a US citizen, his removal order should have been thrown away and David should have been given a sincere apology. The agent's failure to perform his job is actionable under the FTCA and the violation of David's due process rights justifies a Bivens complaint.

If this weren't a system designed for poor people of color who lack legal representation, then the story might end soon. After all, David was supposed to see an immigration judge in a couple of weeks. But, alas for David, it took three more years before he would be released. "At first I didn't have a problem to wait [two weeks]. I knew I was going to be released." But the day for David's hearing, "They never went to pick me up. They told me the guys who were going to pick me up didn't know where I was. They thought I was in another place." David didn't believe them. How could they not know where he was? "I told them, 'if you think you can make believe that, you're wrong.'"

At that point he was told he would have to wait for another court date in two months. David said, "I waited too long for that moment. Two more months ain't that long." But when it came time for his second scheduled hearing in May David was again left to stew in his cell. "I went to talk to [the ICE agents] again and they told me the same thing. That's when I started getting desperate." How desperate? David said of what transpired after he missed the second hearing, "I felt like I was kidnapped."

This is not surprising. David was kidnapped. Under Georgia law, moving someone against his will constitutes kidnapping. Likewise, arresting, confining, or detaining someone without legal authority constitutes false imprisonment. The immigration service was knowingly moving David across state lines and holding him without legal authority. Kidnapping is a violent felony in Georgia and punishable by 10 to 20 years.

When a US citizen is intentionally denied his personal liberty, those responsible should be prosecuted not only for civil damages, but on behalf of the people. The intuition that David's treatment was inhumane and deserves punishment is backed up by a statute designed for this purpose. It only needs a state prosecutor with a sense of justice to be implemented. Civil penalties shouldered by taxpayers are not a sufficient incentive to stop such behaviors. Only after immigration agents understand that the state bureaucracy is not a protection for their illicit activities but the means for their prosecution can damages such as those endured by David be rectified and deterred.

After David realized he was kidnapped, he contacted the pro bono attorney assigned him. "Mr. Rambana told me, "Just send me the papers and I'll go and take you out of there.'" David sent his papers to Mr. Rambana, twice. And twice Mr. Rambana did not receive them, nor were they returned to David. David suspected the guards were intercepting his correspondence.

In August, 2006, the THIRD TIME that the guards failed to bring David to his immigration hearing, he was nonetheless informed that Judge Cassidy had terminated his deportation order. However, the ICE agent in the jail tried to convince David that "the judge terminated my case because they didn't take me to court, not because he was accepting an American citizen." David knew better and repeated that he felt kidnapped and "depressed, desperate." He explained, "I found people who were [in the ICE-leased floor of the jail] for five years. They were fighting their cases. I thought I was going to be with them and spending a long time there."

David wrote to the judge and asked for the decision, which he sent to Mr. Rambana. Within a few days, and this appears to be in September or October, 2006, "I was released. But they didn't release me."

David describes being on the Alabama Etowah County Jail ground floor in his street clothes when he was informed that the Georgia Department of Corrections had just placed a hold on him. He was sent back upstairs, this time to the floor for state prisoners, not alien detainees. He stayed there for three days.

The next unlawful action occurred when ICE agents, who at that point lacked even the thinnest shred of a legal fiction for their custody of him, put him in an ICE van and drove him to Atlanta's downtown jail. David said ICE drove him there because the jail wouldn't pick him up because "they didn't have a charge." And the Atlanta jail wouldn't take David even when ICE dropped him off. "At 6 am they left me in the intake waiting room. At 6 pm ICE picked me up and put me in another jail. Fulton. I don't know why ICE did this. They were so strange. Everything was so strange."

A new piece of the story emerged in the van ride to Fulton, when the ICE agent told David that Cabrillo had personally told that ICE agent that the reason David had been classified as an alien was that David had himself told Cabrillo that he was "illegal." David replied, "If I told him that, why didn't he take my picture or fingerprints?" The agent in the van said he didn't know. Perhaps Cabrillo was lying to his colleagues to cover up his error.

At Fulton County jail the situation in Atlanta recurred: "They didn't want to let me in and they told them the same thing, 'You're going to get us in trouble. What's the charge? How come he's got a hold from the Department of Corrections but he's already released?'" The ICE agents said they didn't know and told them he was going to pick David up the next morning. They next morning, however, they booked David "like I broke parole. That's what they put in the computer, and I saw it." But of course David had never even been on parole. However, while he was being held by the Georgia Correctional Authority, ICE had decided to appeal Judge Cassidy's order terminating David's removal order. [The lack of due process, including the DHS failure to notify David's attorney of this decision, is detailed in previous postings here.]

Georgia was starting to put together an argument that it was holding David so it could arrange for his parole, but this was a fabrication, possibly designed as a cover to hold David for ICE as it was appealing the termination order. Since Georgia had already paroled him under Georgia law and released him from detention under federal immigration law, the claim was a ruse, one that a correctional officer himself noted to David after David was moved from Fulton to the Baldwin Diagnostic Prison in late 2006: "I saw a parole officer and he didn't know what was going on. He said, 'Listen David, you're not supposed to be here if you didn't break the law. I don't know what to tell you.' He was so confused about it." Another violation of David's rights. If a law enforcement officer notices that the law is being broken, then there should be no "confusion," but affirmative action to release a man who was "not supposed to be here."

On December 12, 2006 David was transferred to Calhoun Prison, where he was informed of a parole date of May, 2007. [I have previously posted summaries of phone conversations with Georgia parole administrators that undermine the claim David was held in order to satisfy parole conditions.]

To make a long story further long, David was not paroled in May, 2007, but during this time was in deportation proceedings, unbeknownst to his attorney. Eventually, after appealing two more orders terminating David's removal to Mexico, the DHS attorney without comment withdrew their appeal.

On November 8, 2008 after serving every minute of a ten year sentence for a nonviolent and victimless crime, David was finally released. His two daughters, 17 and 14, have grown up without him. Were it not for the ICE hold, David at least would have had three more years of their childhood to enjoy, and less emotional distance to travel now. Even though they wrote him frequently, right now it's tough. "They look at me like I'm a stranger. I think they've got some anger. I can feel it, though I'm pretty sure with time it will be okay."

Toward the end of our conversation, David started to discuss the danger he feels even now because he knows ICE agents do not understand the laws they are supposed to be administering. He worries he could be stopped on the street at any point by the police or ICE and be forced to go through this all again. Describing one encounter with an agent who didn't understand how David qualified as a citizen "at birth," David told me that after he explained the section defining "citizens at birth", he told the ICE agent in the Alabama jail, "You're supposed to study the law first [before detaining people]." The agent replied, "I am not the one who is going to do the time."

This exchange summarizes a US racist legal culture that is not original with the Bush administration. Its resonance in immigration enforcement has deep roots. That David is going to do time is the reason that the agent SHOULD know the law, because, as the parole officer in Georgia said, only people who break the law should be in prison. When US government officials defend their actions on the grounds that only other people will be harmed, it is long past time for immigration agents and prison officers to have a crash course on the rule of law. If the only incentive they have to learn the law is government agents doing prison time, then so be it.

Friday, December 19, 2008

DHS Expands Biometric Requirements: US Citizens May Be Next

As of January 18, 2009, the Department of Homeland Security will be vastly increasing the number of people required to provide digital fingerprints and photographs on entry to the United States.

Although the DHS headline announces "Department of Homeland Security Expands Collection of Biometrics for Visitors," the policy actually is going to be applied to Longterm Permanent Residents!

Millions of US residents will now be treated like criminals simply because they chose to travel.

These include:
  • Lawful permanent residents of the United States (LPRs);
  • Persons entering the United States who seek admission on immigrant visas;
  • Persons entering the United States who seek admission as refugees and asylees;
  • Canadian citizens who are currently required to obtain a Form I-94, Arrival / Departure Document upon entry or require a waiver of inadmissibility to enter the United States (This excludes most Canadian citizens entering the United States for purposes of shopping, visiting friends and family, vacation or short business trips);
  • Persons paroled into the United States; and
  • Persons applying for acdmission under the Guam Visa Waiver Program.
The DHS states: "Collection and verification of biometric identifiers upon entry protects travelers by making it virtually impossible for anyone else to attempt to use their biometrically linked travel documents (such as a permanent resident card), such as if their documents were stolen or duplicated."

This creeping and creepy logic suggests that US citizens are next. Why leave US citizen travelers out of the "protections" of biometric screening so generously extended to longterm permanent residents?

Monday, December 15, 2008

Israel Turns Back Richard Falk, UN Rapporteur and Political Scientist

UN Special Rapporteur and Princeton Political Science Professor (emeritus) Richard Falk was supposed to enter Israel's occupied territories this weekend, at the invitation of Palestinian President Mahmood Abbas. Instead he was detained incommunicado and then shipped to Newark.

Here's a summary of the latest unfortunate episode of Israel rejecting norms of the international community and the United States sitting by and watching, sent by a colleague Lisa Hajjar, Law and Society Program, UC Santa Barbara.

Richard Falk was elected/appointed to be the UN Special Rapporteur for
Palestine in June 2008. He released his first report about the human rights situation in the Palestinian Occupied Territories (OPT) in October. Since he was appointed, the Israeli government has stated its opposition to him, citing his criticisms of Israeli human rights violations in the West Bank and Gaza. The US government also opposed his appointment for the same reasons, and both governments had lobbied--unsuccessfully--to block his appointment.

He received an invitation from Palestinian President Mahmood Abbas to study the situation in the West Bank, and the Geneva office of the UN High Commission for Human Rights authorized his mission. He left the US on Friday, via Geneva, where he was joined by an assistant and a UN security detail.

When they arrived in Israel, the assistant and the security official were permitted to enter but Richard was detained at the airport, questioned and searched. He was informed that he would be denied entry, and was held for hours before being temporarily transported to some place beyond the airport (a VIP detention facility?).

The US Embassy was alerted to this situation by Richard's wife, from California, after Richard made a quick call from the airport before going into an incommunicado situation. It took more than 12 hours for people to learn what Israel's plans were--sending him to the US, via Newark, on a flight that departs at 11:15 a.m. Israel time.

This is a situation that begs political and diplomatic intervention. The incoming Obama administration should, at minimum, issue a strong and unequivocal endorsement of Falk's status as the UN Special Rapporteur for Palestine, and should exert diplomatic pressure on Israel to grant him entry when he next seeks to travel to the country to pursue his UN mission.
Richard is a friend and colleague with whom Balakrishnan Rajagopal and I co-edited a special issue of Third World Quarterly that was published this year as a book, International Law and the Third World. In describing the challenges to his appointment by Israel and the United States Richard has always sounded more bemused than than surprised. You can read his own statements about his current work in a BBC report from December 10, 2008 here.

Those who know Richard understand that his scholarly turn of mind and genteel manner can be a provocation only to those who care little for truth or the rule of law. Richard is the author of more than 30 books on international law; it is erudition and expertise that lead him to his political positions. To reject his appointment is to refuse a place for truth and justice in the Middle East peace process.

Monday, December 1, 2008

Janet Napolitano and Obama's Immigration Policy

The first concrete indication of President-elect Barack Obama's thinking on immigration policy came with today's formal announcement that he will nominate Arizona Governor Janet Napolitano, a former federal prosecutor, for Secretary for Homeland Security. Consistent with the rest, the choices suggest not much change and not much hope. (Bush's Secretary of Defense? Hillary Invade-Iraq-Bomb-Iran Clinton as Secretary of State??? These are the two best qualified people in the entire United States for these positions?)

An excellent review of Napolitano's immigration record by Daniel González and Sean Holstege appeared a few days ago in the Arizona Republic. Napolitano seems happy to militarize the border; she has called for the national guard and more spending on border infrastructures, on the one hand.

But Napolitano also held back, Gonz├ílez and Holstege write, “$1.6 million in state funding from Maricopa County Sheriff Joe Arpaio to blunt his efforts to arrest illegal immigrants through crime sweeps that critics said were terrorizing immigrant communities and violating civil rights.” In other words, Napolitano is no brown shirt. She, along with candidate Obama, also opposed state legislation that would deny drivers' licenses to residents without legal documentation of residency.

The current game plan for the Obama administration's immigration policy, as indicated on the webpages for the campaign and the 21 page report by the Center for American Policy, the Democrats' think tank while waiting for regime change that Obama has relied on for many of his advisors and positions, seems fairly close to the two immigration bills twice rejected in 2007.

The report hightlights neo-liberal goals of employment and free trade, not human rights or civil rights, and overall echoes S. 1348 and S. 1639. (For detailed analysis of the respective bills' contents and the voting on these, click on tags below.)

Obama's popularity may allow him to overcome the populist, nativist appeals of CNN anchor Lou Dobbs and other rightwing talk radio jocks to push through an immigration bill. If this happens, it could well harm immigrants, and citizens without the lawyers to prove their status, as did the Clinton Adminstration's 1996 reforms.

Any future bill will include this mix of enforcement with civil rights protections, and toward that end, here are three no-brainers:

1) End mandatory criminal deportation. This policy results in longtime residents with minor criminal records being removed to countries they may not have even visited since they were infants.

2) End “early release on condition of deportation” policies in state prisons. This has been implemented in such a manner as to falsely classify as aliens people who are US citizens and it has resulted in the extended and heightened sentencing above what inmates would receive without the alien designation.

3) Require the Department of Homeland Security and the Executive Office of Immigration Review to maintain and periodically release statistics on the legal claims for residence made by those apprehended. In particular, every claim of US citizenship should be noted. At present there are no government records with this information.

More on each forthcoming.
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