Thursday, December 24, 2009

Democracy Now Interview on Nation Articles

You can watch the interview here.

The articles occasioning the interview were published recently in The Nation magazine. The one that appeared in the print magazine and online is America's Secret ICE Castles. The ICE Ruse Operations article is a "web exclusive."

Many thanks to those who agreed to be interviewed, including those whose comments space did not permit appearing in these articles. I hope to post a back story piece later and, with permission, will include some of this information there.

I also want to thank, again!, Dan Kowalski, an immigration attorney who runs the Bender's Immigration Bulletin, for his help through his listserve in bringing to my attention people with important stories to share.
update, 01/05/10

A copy of a letter to The Nation written by Hasan appears in a comment below. This letter was retracted at my request because I recently noticed what Hasan called "embellishments" of his background prior to the narrative of being tortured by an ICE agent. Hasan had told me that he had a green card and that the ICE agent destroyed it, but that is not true. Hasan entered the country legally but was later ordered removed; he never had a green card. He also told me that he had several degrees that he does not in fact possess.

Hasan said that he included this information because he had not been taken seriously in conveying allegations about his torture at an ICE subfield office in 2006.

Hasan initially contacted me after reading the article about subfield offices in The Nation online; he is in Pakistan and someone in the US brought this to his attention. After obtaining a formal waiver from Hasan, I was quickly able to obtain a copy of his ICE file. The file is highly redacted but the information available is consistent with the information Hasan gave me regarding the details of his arrest and deportation, including that Hasan was arrested jointly by ICE and an agent from the FBI's Joint Terrorism Task Force. Hasan had not seen his file before giving me this information.

I will be following up on his account and will report evidence of torture if this can be verified independent of Hasan's narrative.

I post many accounts of people who are mistreated by ICE agents and to date ICE has not provided evidence that would contradict the information these contain. I of course receive numerous other accounts that I do not pursue because I do not trust the narratives and cannot verify them. Hasan had requested that I remove his comment but in the interests of transparency and for the historical record I am leaving it as is and including this explanation.

Tuesday, December 22, 2009

"Home Sweet Home!" says US Citizen American Government Rendered Stateless

Ten years after being illegally banished from his country, U.S. citizen Johann Francis was reunited with his mother and two sisters in an Atlanta airport early Sunday morning. (For background, please go here.)

On Monday he spent the day figuring out new gadgets, including the shower, and catching up with his family and life in America: "I've been away so long. Readjusting is really something. It's like if you haven't eaten salt in ten years and someone gives you a chimichanga."

When Mark Lyttle returned to the Atlanta airport last spring after he was illegally deported he was held for two days and the government prepared to deport him again, despite a freshly minted US passport. Johann's response to hearing about Mark's experience of being told his passport was fraudulently obtained was, "How stupid do they look? You can just lie and get a passport? Do you know how many people are trying to get into the United States and they're saying you can get one if you just lie?"

In the event, Johann entered the US at the Fort Lauderdale airport Saturday evening with no significant delay. Barbara Gonzalez, an ICE public affairs officer, had transmitted information about his return in advance to the Customs and Border Protection office that had presumably updated his records. Johann also had a sealed letter from the US Consulate in Jamaica and produced this after the agent at the checkpoint was "staring with a confused look at the computer, like he didn't know what to do."

The agent brought Johann to an adjacent room and he sat there with his luggage, not sure what was happening or would happen next, "I got scared, that I'm-in-trouble-feeling, worried it's all going to happen all over again. I was just trying to be calm." 40 minutes later an officer came in and asked Johann two questions, if his mother was single (yes) and how old he was when he had his citizenship (14). But they kept the copy of the letter from the US consulate. Johann said, "I really want that letter. I'm scared."

In Jamaica, Johann had expressed his discomfort with the unfairness of feeling this way, "I feel like I'm doing something wrong, or like they're doing me a favor [by issuing the passport]. I feel like I have to ask a favor of them."

(I have written a note to Barbara Gonzalez asking for procedures US citizens should follow if they want to make sure that earlier wrongful deportations do not haunt them forever--right now the FBI database will indicate that he is illegally in the country and he may be arrested for illegal reentry--and will post the reply when it arrives.)

That feeling of not quite fitting in or being accepted by one's own country emerged repeatedly in our conversations as a burden and also a source of strength. The first time we spoke, Johann told me about speaking with his mother from Jamaica after he'd lost touch with her for almost two years, "Wow, we've been looking for you," she said, "I could hear a sigh of relief that I wasn't dead or hurt somewhere. That was hard, hearing my mother's voice again. It was almost painful. I didn't cry because I was used to being alone. We were in Washington State. I am from Jamaica. There are no Jamaicans in Washington State."

And there weren't many deported US citizens in Jamaica. One of the most difficult challenges Johann endured was hiding his deportation, "I couldn't say, 'Hi my name is Johann Francis and I've been deported from the United States because those people are looked down on. They're outcasts. It's like, you had your chance and you blew it. Why should I help you now?" But Johann could not locate any Jamaican documents to verify his birth there--which he would need for either Jamaican or US citizenship. Although he was by law a US citizen, he was de facto stateless and invented various tax numbers and so forth for later employment.

Hiding his identity was not easy. First, there was the accent. Johann spoke American. He made up a story of going to the US for education and returning to Jamaica by choice. But it also was hard when people believed him. Speaking from Jamaica a few days before returning, Johann said:
"I'm still going with that story up to this day. That was a mental drain, being unable to speak Jamaican without an accent, and I had to go through the whole fabrication. I've been constantly somebody else. I think three people knew my true story. I don't know if you know the psychology, but when you hear a foreign person who speaks another language, when they get upset, they start speaking that language. It's an expression of themselves and who they are and they relate better speaking the language they know and feel frustrated speaking a language they don't know. That's me for ten years. In the seventh or eighth year I started associating myself with other deportees for the sake of wanting to be home in America. That was so wierd. I could relate to them whether I was a citizen or not. I told one or two of them the truth becuase you want to talk to somebody. You want to tell your story."
One interesting piece of Johann's story is a legal misunderstanding on the part of his mother, one that persisted until his seventh or eighth year in Jamaica. His mother knew that Johann had derived US citizenship, the equivalent of citizenship at birth, when he was 14 through her naturalization. She simply assumed that the US would not deport a US citizen and inferred from his deportation that the government had revoked his citizenship. Once they realized that this is not what had transpired, and that Johann had his US citizenship rights stolen by a US government that had flagrantly violated his due process rights, Johann began his quest to return.

Until the government clears up the legal mess it created, Johann is still at risk of arrest, but he is very happy to be back and begin to tell his story.

Friday, December 18, 2009

US Citizen Unlawfully Deported Ten Years Ago Returns Tomorrow

U.S. citizen Johann Francis, 30, unlawfully deported from the United States, returns tomorrow from Jamaica to celebrate Christmas with his family in Atlanta for the first time in ten years.

Why Was Johann Deported?
The quick answer is that the U.S., like other countries, continues to use medieval rules to regulate the movement of people across state boundaries. These regulations were thrown out a few hundred years ago when they were used to restrict movement among villages and they are equally absurd for regulating movement among countries.

Of course even under current laws, US citizens may not be deported. Yet Johann and thousands of other U.S. citizens will tell you that this has happened to them. Johann's story, alas, is a familiar one: a youthful run-in with the law, a couch-surfing mother on the other side of the country, no attorney, and voila, a one-way ticket to Jamaica, the judge telling him, "You're deported forever."

The Facts

Johann a US Citizen. Johann moved to the US with his mother when he was 7, at which time received a green card indicating he was a lawful permanent resident. His mother was not married to his father; his father is not listed on Johann's birth certificate, and his mother always had sole custody of him. Thus, when Johann was 14 and his mother naturalized, he automatically derived US citizenship.

Johann and Mother Cannot Find Each Other. Johann described a childhood of moving around among various military bases as his mother accompanied his stepfather to new posts. After a separation his mother, broke, decided to leave Washington because her employment prospects were better in Atlanta. The timing could not have been worse, "It was January of my senior year. I was very distraught because I wanted to graduate with my friends. I was 18 and working at the Safeway and told my mother, 'Hey, I want to finish, and stay, and graduate.' She said that was fine." However, his mother's economic situation did not improve and she was moving from relative to relative and then motel to motel. Meanwhile, Johann also was having a tough time, also moved, and his mother could not locate him, either.

Johann Goes to Prison. Shortly before Johann was supposed to graduate, he and some friends had a Westside Story encounter in Seaside, Oregon, the result of which was that Johann pled guilty to felonious assault and served one year in the Oregon Shutter Creek prison boot camp, "Boot camp was really important to me because out of the 96 inmates who started, only 26 finished. I was one of the model prisoners there, the guy who carries the flag. I did very well and I was proud that I graduated."

Johann Sent to Detention Center. "On graduation day I was told I couldn't leave because I have an INS hold." Johann said that as far as he knew he was never interviewed by anyone from the INS. Johann said he told the guards in Oregon that he thought he was a US citizen, but when they asked him the year his mother became a U.S. citizen and he couldn't answer, they "shipped me to Arizona, to Eloy."

At this point the line was quiet and I thought maybe we lost the connection. Johann was sobbing and trying to regain composure, explaining that he thought he was a U.S. citizen but had no means of contacting his mother in order to obtain the documents for proving this. "I'm talking to inmates who are in there for two or three years. Are you kidding me? Some are trying to get asylum and my story just sounds impossible. Okay, you're a citizen, too. I don't have any money. I can't afford a lawyer. Nobody knows where I'm at. By the time my mother catches up and finds out that I'm not in Washington or a hospital and that I may be in Oregon, I'm not even there. I'm in Arizona." Johann was in tears, "I didn't know or understand the whole law. I knew they weren't supposed to... But they did. I signed the papers. I signed it. It's my fault and the judge said never to return. I have nightmares. I'm thinking to myself, even if I had a right I could have signed it away." (By the time he was in Eloy, Johann was entirely confused about whether he really was a US citizen. He spent three months there and wanted to leave confinement.)

"It's so amazing what you can do with a coconut, but it 's not a well-balanced diet." Johann's life in Jamaica for the last ten years has been one of despair and resourcefulness, about which I will write more on Monday. One major difficulty was that until 2007 it was impossible to locate one's birth certificate without a number. However, in 2007 a new digital system was put in place, and that's what eventually allowed Johann to track down his certificate and bring it to the US consulate which, along with the legal documents from his mother, proved his US citizenship. On October 30, 2009, Johann received a US passport: "When I got it I told myself, this is the prettiest piece of paper I've ever seen."

Johann endured various diseases associated with malnutrition but eventually found his bearings and, drawing on his high school broadcasting experience, began to independently produce a television show on the local tourist industry for which the businesses paid Johann and Johann paid the television station for air time. Before sending me his photograph Johann explained that they do not do justice to his hardships, "Most of the pictures I have taken are when things are good. People are going to see these and say, 'Wow, this guy looks great. Send me to Jamaica.' How I am now, coming home, is not the meager, malnourished person I was four or five years ago. I didn't want to be the poor puppy that just came home. That's good PR, but that's not me."

In time for Christmas. Johann is scheduled to arrive tomorrow, Saturday, December 19 in Atlanta via Fort Lauderdale. He has a sealed envelope with a letter from the US consulate verifying the authenticity of his US passport. The consular officer realized that Johann might have the sort of experience Mark Lyttle endured on returning with a valid US passport from his unlawful deportation in April, when the government tried to execute and "expedited removal order" and failed to return phone calls from Marks' attorney.

After the Holidays. Even if Johann is successful in returning, the decade old unlawful deportation order remaining in his federal record could easily trigger a new criminal arrest for Illegal Reentry. And, if Johann is pulled over for a speeding ticket, especially in the Atlanta area, it seems likely that he would be once more in the net of ICE. After I called ICE public affairs officer Barbara Gonzalez last spring, ICE agents and attorneys retracted the ICE deportation documents and requested that William Cassidy terminate and vacate his illegal deportation order. Cassidy did so.

I am sending this information to Immigration and Customs Enforcement and the Customs and Border Protection and hope that they are able to begin to offer this minimal and late protection against further unlawful confinement and other forms of government harassment stemming from Johann Francis's unlawful deportation.


How I learned about Johann's travails. On the basis of reading this blog, Johann sent me an email last week. Since then we've spoken on the telephone. The information above is based on those conversations. He contacted me because he wanted to publicize his experience, "People shouldn't have to go through this. Ultimately, if we need a better system in place where we can avoid illegal deportations If I can have a hand in that, that would be good."

Wednesday, November 18, 2009

Clandestine ICE Subfield Offices

12/22/2009 UPDATE: For a recently published article inThe Nation magazine, please read "America's Secret ICE Castles."

For a list of ICE subfield offices and their phone numbers sent to me in response to a FOIA request, please go here.

A few weeks ago I was driving with Mark Lyttle to some of the government offices that had kidnapped him, stripped him of his rightful identity documents, rendered him stateless, and deported him to Mexico. (For more on how Mark, 33, born in North Carolina, was deported, please go here.)

One of the places we stopped was an address on several of the documents issued Mark from an ICE office in Cary, North Carolina. When we first arrived at the industrial park in a suburb of Raleigh, I thought google/maps had led me astray. 140 Centrewest Court was just next to a production plant for Oxford University Press, and off a main road with some gated communities. There was no sign indicating an ICE facility.

When I started to express some doubts Mark said, "No, this is it. That's one of their vans." He pointed to a white van with no marking and no windows behind the driver's seat. He recognized it because he'd been driven in one like that, in shackles and handcuffs. (It's not in these photos, alas.)

We continued toward the end of the road and found ourselves behind 140 Centrewest Court, at the far end of the development, adjacent to at least 15 unmarked white vans identical to the one we'd seen in front.

There was no sign anywhere indicating that this was a government building, much less a place where people were being held by ICE in transit to larger facilities.

Though there was a sign suggesting one might be given travel documents.

When I returned to Berkeley I called up some folks to see if I could learn more about these secret sites. Kathy Purnell, an Immigrant Rights Fellow at the ACLU in Georgia told me that she'd read something about them in a recent report by Dora Schriro, "Immigration Detention Overview and Recommendations" (October 6, 2009).

According to the report, these offices are used to hold people for up to 12 - 16 hours and are used for "84% of all book-ins." The subfield offices are below the legal radar so it would be impossible for anyone to know the conditions and if the limits are enforced.

I called ICE and requested a list of what the report says are 186 subfield offices.

First I was rebuffed. Temple Black, an ICE public affairs officer, checked with his supervisor and told me that these locations were "not releasable." He said the list was "law enforcement sensitive." Around the time he told me this he had a family emergency and left town. Mr. Black put me in touch with someone else at ICE who did release the list to me.

(I'm still not sure of the list's official classification. Mr. Black told me today that he was told the list was law enforcement sensitive and that he couldn't remember anything else, nor did he have information on why another individual would release the list.)

The list is not complete (it has 174/186 locations) and at least one of the addresses is not accurate. I have requested a complete list and am waiting for that.

I circulated the list to various civil rights and immigrant rights groups, including Detention Watch Network, the ACLU, and Human Rights Watch. I also shared it with about a half dozen attorneys who work on immigration law enforcement. No one had previously seen it. Some of the locations are known detention centers and federal buildings but many are like the place I saw in Cary: unmarked buildings with unmarked cars housing agents who themselves travel incognito.

For more on what's happening at these places, and the response from activists and attorneys, stay tuned for an article that will be appearing shortly in a national magazine. Meanwhile, feel free to stop by and say hello.

Tuesday, November 10, 2009

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

Monday, October 26, 2009

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.)

Sunday, September 27, 2009

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.

Wednesday, September 9, 2009

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.”

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.)

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.

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.

Sunday, August 30, 2009

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.

Thursday, August 20, 2009

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.

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:

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.

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."

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 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.’”

Tuesday, August 11, 2009

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?

Wednesday, June 24, 2009

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.

Monday, June 22, 2009

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.

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:


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.

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.

Wednesday, June 10, 2009

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 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.


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.
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