Wednesday, April 29, 2009

Obama's First 100 Days: "Not in Service" for Victims of ICE Kidnappings

In addition to the myriad of ICE abuses of power during the first 100 days of the Obama administration, the further insult is that the main number for the ICE Office of Professional Responsibility, the office charged with internal investigations to punish ICE agents, is literally "Not in Service," or so the recorded voice says for the number listed for the Office of the Director.

I tried calling this morning to find out if anyone was looking into a U.S. citizen forced to sign a false statement on a form filled in by an ICE agent as part of a plan to arrange his kidnapping to Mexico. The federal code, defines kidnapping as

"Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49;
...

Section 3 applies to what ICE did to Mark, as Mark was taken unlawfully in a plane from Raleigh to Atlanta and by another plane from Atlanta to Mexico, even though ICE had a sworn statement from him stating he was born in the United States. Just to be clear:
(2) “special aircraft jurisdiction of the United States” includes any of the following aircraft in flight:
(A) a civil aircraft of the United States.
(B) an aircraft of the armed forces of the United States.
(C) another aircraft in the United States.

The federal kidnapping statute continues:
(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.
(d) Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than twenty years.

Section 1 also likely applies because the form that Mark was coerced into signing in North Carolina ended up in offices in Georgia. The statute contains other provisions, but the gist is that unlawfully seizing people and transporting them in planes is kidnapping, and there's no special clause that says ICE agents are immune. Mark was unlawfully seized and transported.

It's common sense to insist that the rule of law apply to government officials. Congresswoman Zoe Lofren, Chair of the House Subcommittee overseeing ICE, agrees. Andrew Becker wrote a terrific piece in Mother Jones last week on the deportation of U.S. citizens, and quoting Congresswoman Lofgren: "'There's no jurisdiction for the government to arrest or detain, or let alone deport, citizens. That's otherwise known as kidnapping.'"

MORE CHRONOLOGY
I spoke yesterday with ICE Spokesperson Barbara Gonzalez, who had a sketchy Executive Summary of ICE actions on Mark Lyttle. I asked her who prepared the summary and Gonzalez said she didn't know. I asked because conversations with various ICE agents indicate that there's a lot of folks trying to point the finger elsewhere, be it the prison, Raleigh, Atlanta, the immigration judge, and of course, they all want to blame Mark, the victim. I thought that whoever wrote this summary might have the narrative shaped by these concerns. It turns out that I was right. Today I received a different narrative.

Here's what Gonzalez told me yesterday, from a transcript of our conversation edited for relevance--nothing is added but tangential or confusing exchanges are not included:

BG: On Sept 2 2008 our ICE officers encountered Mr. Lyttle at Neuse Correctional Institute, Goldsboro, North Carolina.

JS: What does encounter mean?

BG: I would have to look into that. It could have been through the criminal alien program, where we identify individuals for removal.

BG: On November 5, 2008 ICE officers took a sworn statement where he stated he was a citizen of Mexico, that he illegally entered the U.S. without being inspected, and made no claim of U.S. citizenship. Subsequently ICE officers served Mr. Lyttle with a notice to appear.

JS: Can you tell me the date on the Notice to Appear and what it says.

BG: I don't have that information.

BG: On December 9, 2008 an immigration judge ordered Mr. Lyttle removed to Mexico. On December 21, 2008, ICE removed Mr. Lyttle to Mexico.

JS: Do you know where in Mexico he was taken?

BG: I don't know where. [Mark told me after I my conversation with Gonzalez that he and about a 100 other detainees were flown to Hidalgo in handcuffs and shackles; these were unlocked after they left the plane and they were told to walk across a bridge to Reynosa, Mexico.]

BG: On December 29, 2008 Customs and Border Patrol encountered Mr. Lyttle after he attempted to enter in Hidalgo, Texas They [pursued?] a process for expedited removal. On the same date he was removed to Mexico.

BG: On April 22, 2009, ICE encountered Mr. Lyttle after arriving from Guatemala City. Customs and Border Patrol determined he was previously removed and processed Mr. Lyttle for expedited removal. Subsequently he was placed in custody at the Atlanta pretrial detention center.

BG: On April 24, 2009, ICE interviewed Mr. Lyttle and obtained another sworn statement from him where he admitted providing false information regarding his citizenship.

JS: Do you know where he admitted this and if his lawyer [Neil Rambana] was present.

BG: I don't know where. He was in possession of a valid U.S. passport and subsequently released. On Friday, the DHS filed a motion with the court to rescind the order of removal.

JS: Do you know why ICE was calling Mark "José Thomas"?

BG: I have no information about José Thomas.

Here's what happened in our conversation today:

BG: On September 2 the day that Mr. Lyttle was encountered at the correctional institution by our criminal alien program officers ...

JS: Do you know why he was interviewed by ICE agents?

BG: Barbara Gonzalez does not know why [sic].

BG: I have a sworn statement taken on that day where the name you kept bringing up yesterday appears. Jose Thomas aka Mark Daniel Lyttle stated that he was a national of Mexico and that he was born in Mexico and that he entered the U.S. at age 3 and he wasn't sure where he entered the U.S. He stated he had never been arrested in Mexico but yes in the United States he had.

JS: Were these answers typed or hand-written.

BG: Hand written [She explained that it's a form and that it has lines indicating country of birth, e.g., and then it says in hand writing: "Mexico"]

JS: Do you know who filled in the form, was it Mark or the agent?

BG: I don't know.

JS: How is it signed?

BG: The signature says Mark Lyttle.

JS: Where does it say José Thomas?

BG: It's on the record of the sworn statement with the file number, José Thomas aka Mark Lyttle

BG: November 3, there's another record, a sworn statement with the same alien number and signed by Mr. Lyttle where he now says he's a U.S. citizen.

BG: A notice to appear is subsequently issued.

JS: What does it say?

BG: Matter of Mark Daniel Lyttle aka Jose Thomas, November 5th.

BG: There's a new sworn statement November 12, this one in the name of Mark Daniel Lyttle aka Jose Thomas. What is your true and correct name: Jose Thomas, any other names? Mark Lyttle, in what country are you a citizen? Mexico. Tthen it says mother and father's names. Father, Jose Thomas, mother Maria. Mother is living in Texas and father Mexico. Signed by Mark Lyttle


After I got off the phone with Gonzalez, I called Mark. He told me that the September 2 meeting Gonzalez describes is when the ICE agent told him they knew his name was José Thomas. I told him that Gonzalez said he signed a statement saying he was José Thomas and asked him why he did this. This is exactly what Mark told me:
I signed because I’m thinking to myself... She didn’t even let me read it. She didn’t even let me read the piece of paper. I asked her, 'Can I read this?' I didn’t get chance to read it. She said 'you’re waiving your rights, you’re from Mexico.'"

I asked Mark how he was feeling while he was having this conversation with the agent, whom he identified as an African-American woman:
"I felt very intimidated by her. I never knew about those people and it’s all up to them. I signed it because, I mean, I felt like I didn’t have a choice but to sign this paper."

In case the context is not sufficiently clear, Mark told me that the agent filled in the form, not him. Why did she do this? The answer may be interesting from a literary perspective but not a legal one. The agent decided that she wanted Mark out of the country, wrote a document that would accomplish this despite his verbal protests against this, and then forced him to sign it when she knew it would accomplish his forced removal from the country. Many other agents and agencies have responsibility for what Mark endured as well.

I told Mark that ICE is now acknowledging his sworn statement on November 3, 2008 stating that he is a U.S. citizen. Mark said, "If I signed a statement saying I was a United States citizen then why would you deport me?"

Great question! I'd really like to ask that of someone in the ICE Office of Professional Responsibility, if only they had their phone working, or the right number published on the website. 100 days and Obama can't get the watchdogs for the people who are deporting U.S. citizens to answer the phone?

I don't like letter grades, so consider this the written evaluation...

This is not just about Mark Lyttle. I know from talking to attorneys across the country and reading court cases of people like Mark arrested for illegal reentry that this fact pattern seems unique only because it's publicly examined here for the first time. I do not believe that when the ICE agent sat across the table from Mark in the Neuse Correctional Institute that this was the only time she filled in a form with false information and demanded a signature of an inmate. And I do not believe that this ICE agent is the only one who has done this. If only the ICE Office of Professional Responsibility had a working phone.

-------------------
Immigration Judge Controversy in Atlanta
There's more in the narrative that I'll get into later but right now I want to quickly address an esoteric debate initiated by some folks in the Atlanta immigration law community, about the role Judge William Cassidy played in deporting Mark Lyttle. (Thanks to Dan Kowalski for keeping me, and everyone else!, informed.)

I don't want to spend a lot of time on this now, but I do want to say to the folks who claim to have listened to the tape or who know someone who listened to the tape and did not see Mark speak up to the Judge, as he told me he did, the tape may not include all of the events that transpired.

Someone wrote:
"I have talked to Cassidy about this case. This guy's master was a "Mass" master, that is about 30 folks with no relief. There is nothing on the 4 minute tape in which Little [sic] says: "Hey, stop, I am a US Citizen." 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--North Carolina is where Mark was born]."

Wait a minute: this person is saying the judge has notes that a person diagnosed as bipolar and who says he's born in the United States is a respondent in his courtroom and then approves a deportation order for that person??? A crowded docket?

With apologies for the sarcasm, poor Judge Cassidy. Mark almost died from two diabetic seizures in Mexico, for which he was hospitalized, and one in an Honduran prison where he was sleeping in a large room with several other inmates on a cement floor, with no blankets or mattress, in a room that stank of urine because it was hard for the convicts with whom he shared the room to pee into the white PVC pipe that passed for a urinal, a place he found himself after the Mexican immigration authorities stuck him on a bus to Honduras and the Honduran immigration authorities locked him up because Judge Cassidy ... had 30 respondents in his courtroom? (When Mark's legs collapsed during his seizure in Honduras the guards laughed and taunted him before giving him some medicine. Mark told me that the "gangsters" had mattresses and blankets and had their girlfriends bring Mark bedding, but the guards "said it was a political thing, they hated Americans" and took his mattress away from him.)

If Judge Cassidy is overwhelmed, then why punish Mark and the other respondents? Why not simply terminate the proceedings for everyone in the court? If I'm having trouble finishing grading papers, I don't give everyone an F. If EOIR cannot handle its workload, then it needs to close shop, not rubber stamp U.S. citizens for a trip to Mexico. (Tucson reporter Claudine Lomonaco did a great story that aired yesterday on PRI's "The World" about problems with immigration court access.)

Even if Mark never said a word, I'm not sure what's so exculpatory for Judge Cassidy about this scenario.

Mark has been very specific and consistent about his exchange with Judge Cassidy, indeed about everything that has transpired. Maybe he really spoke with someone else, or maybe it was another time and place, but right now I believe what Mark says, which is that Judge Cassidy replied to Mark saying he was a U.S. citizen by saying he had to go by the paperwork he had, and when Mark asked him what the papers said, Judge Cassidy told him he would have a woman who sounds like she might have been from the Legal Orientation Program send Mark the paper he, Cassidy, was reading. Mark never received this.

I realize that people may have seen a tape, in which a judge is in one courtroom and respondents are in another and they're talking to video monitors and the respondent cannot inspect the paperwork in the judge's hand, but I think the jury's still out about whether the tape includes all the exchanges between the respondents and the immigration judge.

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