Wednesday, May 6, 2009

Customs and Border Protection Destroys Birth Certificates of Mexican-American U.S.-born Teenage Boys

Here are descriptions of two previously unpublished accounts of U.S.-born Mexican-American teenagers who had their birth certificates ripped up by Customs and Border Patrol agents. I have information on other similar cases, but only time to write up the details of these two, along with summaries and links to two other recent cases published elsewhere.

Just to be clear, a national identity card doesn't solve these problems: in many cases of U.S. citizens deported ICE or Customs and Border Protection doesn't even check the digital files that have evidence matching the identity cards presented by the individual with the information in their databases-- as was the case at several points for Mark Lyttle. If no one bothers to check that a passport (or national identity card) matches the information in a law enforcement database-- as should happen when a U.S. citizen objects to having his proper identity disregarded by an agent or an immigration judge -- then having a national card does nothing and is no improvement over our current system.

Mexican-Americans with Birth Certificates Border Patrol Destroys or Ignores
Case 1. Mario, 17, was born in a Colorado hospital in the late 1980s and I've seen his birth certificate and hospital records.

Mario's mother is a U.S. citizen and his father Mexican. When Mario was a toddler his father and mother separated and Mario's father brought him to Mexico. His father's plan was to raise Mario, and then he would return to the United States. When Mario was 17 he decided it was time to "go back to the United States and claim his destiny," according to an individual familiar with this case. Mario had uncles in Tucson who visited Mario frequently in Mexico. He was especially interested in finding his mother. A birth certificate is a valid form of identification for entering the United States, and Mario thought he was all set. (Mario couldn't obtain a U.S. passport from Mexico because if you're 17 or under, that requires the presence of both legal parents.)

In early 2007, when Mario tried to return through Nogales, Arizona the Customs and Border Patrol agent, the attorney said, "tore it up on the spot. They told him, 'It's not real. Go away, kid, this is fraud.' There goes your Colorado birth certificate. Go away, have a nice day." Mario was upset and insisted he was a U.S. citizen. "They told him that if he says he's Mexican he can leave, but if he keeps saying he's a citizen he'll be detained at the Nogales border patrol station and arrested." He signed and returned to Mexico.

Because of worries about identity theft he was not able to send for another copy of his birth certificate. In May 2007, Mario decided to take his chances by crossing without inspection and was apprehended by the Nogales Border Patrol. He made a sworn statement that he's a U.S. citizen and is taken into detention for deportation proceedings, where he can make his case before a judge. Mario, the attorney said, "denied he was a Mexican alien, but they whipped this thing out," according to the attorney, and said, "You said you were a Mexican. Here's the proof. You were removed as a Mexican."

The Immigration Judge says the initial sworn statement of Mexican citizenship is sufficient to shift the burden onto Mario to prove he really is a U.S. citizen. Even granting the absurdity of a Mario's coerced statement being used against him, Mario met that burden. His file includes Medicaid records of his birth and infant care, a copy of the birth certificate, and the Colorado hospital records, including the Apgar test (taken one minute and five minutes after birth). The attorney continued, "The judge says, 'The records don't show he was born at the hospital. The records only show he was treated at the hospital." Oh, and Mario had obtained a childhood photo from his uncles in Tucson, from when they visited Mario in Mexico, in which Mario's about 8 and holding THE SAME BIRTH CERTIFICATE in his file. (The family had the photo enlarged and it's very clear.)

The attorney also pointed out that the entire proceeding was improper because ICE never conducted an initial interview or investigation of his claim to U.S. citizenship, as required by the deportation and removal regulations, but, the attorney said, "They didn't do that. They just NTA'd him." (A Notice to Appear is a charging document that requires an interview by an ICE agent.)

Mario signed the removal order and is going to try to obtain a passport or file for a from Mexico, but it's not going to be easy because a passport requires U.S. photo identification and other documents that someone in Mexico cannot obtain. Also, the form for filing for U.S. Certificates of Citizenship (N-600) states it is for people born abroad, the premise being that if you have a U.S. birth certificate that is proof of citizenship.

Case 2.
An attorney who works for a federal defender's office told me about Ricardo, 16, who was living in Phoenix and drove to Nogales so he could drink. (These events transpired roughly between 2002-2006.) On returning to the United States, Ricardo presented his Los Angeles County birth certificate and Arizona driver's license. The attorney said "The border patrol agent kept trying to get him to admit he was Mexican and it was a fake certificate: 'You're a punk, you're stupid, and I'm going to do you a favor,' and the border patrol rips up Ricardo's birth certificate." The agent tells Ricardo that he saved him from a charge of presenting false documents and says that if Ricardo doesn't sign a statement saying he's Mexican, then he's going to prison for a year. Ricardo signed."

I asked the attorney why Ricardo signed the false statement, although the absence of an attorney and being a minor are already grounds for concern. He replied, "Nobody believes you, and they browbeat you, 'Stop lying, you're just making it worse.'" Ricardo went to court but didn't say anything. I asked why he didn't explain his situation to the immigration judge and the attorney, who had watched a video tape of the hearing told me, "A lot of these judges don't listen to shit anybody says. This judge never even looked up from the paper." (Incidentally, Ricardo didn't miscalculate: Mark Lyttle told the judge he was U.S. citizen and was still deported.)

Ricardo, born in Los Angeles, was deported twice, each time signing a statement that he was a Mexican national. The attorney said, "It was the path of least resistance. The third time he was looking at six months to a year so he said, 'That's crazy. I'm a U.S.. citizen.' And they say, you're not a U.S. citizen, asshole, you've been deported a couple of times." That's when the attorney's brought in, to defend Ricardo against the charge of Illegal Re-entry. The attorney introduces Ricardo's birth certificate as evidence and the prosecutor moves to dismiss the charge, but then the attorney paraphrase the prosecutor's next statement, "Don't think I'm being a nice guy. He's still guilty of Illegal Entry, anyone entering without inspection." (Ricardo was found not guilty.)

Case 3.
The following is from an ACLU-Southern California Press Release, issued on October 29, 2008:

“If ever there was evidence of the fundamental flaws in our immigration system, it is the fact that a U.S. citizen was deported twice and denied entry into the United States on numerous occasions without any due process of law,” said Jennie Pasquarella, staff attorney for the ACLU/SC. “ICE officials repeatedly ignored his certified birth certificate, which they could easily have corroborated, and instead simply refused to believe him. It is inconceivable that this would have happened were he not Latino.”

Olivares was born in the Los Angeles area, and had never lived outside the United States until he was forced to live in Mexico after ICE deported him in 2007 and refused to allow him to re-enter. But his ordeal began in 2000, when border agents questioned the veracity of his birth certificate and whether it belonged to him when he was returning into the United States at the Tijuana border crossing. The agents refused to let him enter his own country. A week later, however, Olivares’ mother met him at the border crossing with a certified copy of his birth certificate, and Olivares and his mother re-entered the United States without incident.

In 2007, while Olivares was serving time in state prison, agents from the Department of Homeland Security approached him and told him he was a Mexican citizen and would be deported. Olivares insisted that he was a U.S. citizen, but eventually – not fully understanding his rights as an American citizen – he was coerced into signing papers that were never explained to him and was deported to Mexico.

He then attempted to cross back into the United States, but border guards refused to let him enter. He felt he had no choice other than to live for a time with his mother’s family in Jalisco. But in June 2008, upon learning that his father in Los Angeles was gravely ill, Olivares again tried to cross the border legally, presenting a certified copy of his birth certificate. After being rebuffed, he crossed illegally, but was picked up by the U.S. Border Patrol. On September 2, 2008, he was deported for a second time to Mexico, on the day his father died.

In September, Olivares – accompanied by his mother -- tried yet again to re-enter the United States legally from Tijuana. Once again, immigration officials rejected his birth certificate. However, this time he refused to sign his name to the papers foisted upon him and demanded to see a judge. As a result, ICE put Olivares in removal proceedings and detained him at the Otay Mesa Immigration Detention facility in San Diego. The family then contacted the Coalition for Human Immigrants’ Rights of Los Angeles, which in turn contacted the ACLU/SC. On October 9, ACLU/SC staff attorney Jennie Pasquarella advised ICE that it had no authority to detain Olivares because he was a U.S. citizen, and presented his birth certificate and other documentation demonstrating his citizenship. He was released later that day.

“There’s something fundamentally wrong with the system if border guards can effectively deprive you of your citizenship by simply disregarding a valid birth certificate,” said Pasquarella. “ICE officials obviously used race and ethnicity as a basis for enforcing our nation’s immigration laws, rather than taking a few minutes to verify Mr. Olivares’ legal status.”

Case 4.
In a detailed article by Sandra Hernanez appearing in the Los Angeles Daily Journal on December 31, 2008 Jose Ledesma, who estimates he was deported about 15 times despite presenting a U.S. birth certificate, says,
"I think the only reason I got out is immigration saw the newspaper stuff and didn't want to keep me in there after it was public," he said.
"I think I might have gotten out a lot faster if I'd had a lawyer," Ledesma said. "I know my rights, but in court you don't really understand all the legal stuff or they just don't believe you."

This does seem to be a pattern: when the media focus attention on cases ICE responds but absent that attention even attorneys have a problem receiving due process protections for their clients.

Another interesting point Ledesma mentions is that during his hearing before an immigration judge, when Ledesma brings up his claim to U.S. citizenship, the judge "turned off the tape recorder and began talking to the government attorney and then turned it back on and told me I had 15 days to provide facts to show I was a citizen."

So the immigration courts won't let people in (see earlier postings tagged EOIR) and immigration judges are having secret exchanges with the government attorneys?!


How many cases of U.S. citizens deported or detained, how many outrageous illegal actions by ICE, Customs and Border Protection, and the immigration judges before we stop spending money on sending out people because of the accidents of borders and birth--and the inherent inability to get this stuff right in programs run by dumb Americans--and start spending that money on health care, education, transportation and other real needs? (Spending billions of dollars because of an unfounded anxiety that open borders cost money is as rational as buying a $1 billion safe to protect a dime store flag.)

The attorney who told me about Ricardo said, "This cat and mouse shit hurts people, it gets people killed, it teaches agents to treat people like animals." He described a chat site popular with border agents that refers to immigrants as "tonks." He asked a CPB agent what that meant and was told, "'That's the sound it make when you hit someone over the head with an aluminum flashlight. Aluminum's flexible and the hair covers the injury.' That's a culture created by a cat and mouse chase game. Who loses? In Tucson, I watch kids getting picked up at a downtown bus center by border patrol and hauled off, kids I doubt were illegal."

We know that border enforcement is systematically hurting people innocent by law and common sense; we know that it is costing billions of dollars; and we have no evidence that free movement harms rather than helps the overall economy. And we know that ending border restrictions will increase household and family stability.

Our country is in the grip of a profound borderline personality disorder. The psychotic effort to separate an idealized U.S.-American "good" citizen from the racialized "bad" Mexican is no different, legally, from the 1933 Nuremburg laws, where officials held similar debates about where to draw the arbirary line of Jewish/German ancestry to make sure that Germans wouldn't be deported. The Nazis had to decide on degrees of descent, not to punish Germans who happened to have a Jewish ... great-great grand parent, great-grandparent, grandparent, parent. How to know when one is wrongfully punishing good Germans and not appropriately deporting bad Jews? This particular Nazi legal question is exactly the same as the ones being asked every day in U.S. immigration courts. Are you a real U.S. natural-born citizen if you only have documents showing your father worked here 9 years after 1950? 10 years? If your mother was born in the United States but not your father? If your father's name does not appear on your birth certificate? If you don't have money for an attorney and private investigator to track down documents?

A sane people does not ask this question.

Fortunately, there are many people who are rational, compassionate adults and understand this. The nonprofit attorneys who spend their time in low-paying positions with impossible caseloads, the private immigration attorneys who take tricky pro bono cases, the government employees who are speaking up when they can, the journalists who take patience to describe complicated cases and not just shocking are doing amazing work and deserve as much attention as the trouble caused by our government. It is important to know about government mischief but it is a mistake, one I am guilty of, to be preoccupied by this to the exclusion of the good work done by so many, one for which I will be making amends here. Stay tuned...

Thanks to Dan Kowalski, Austin immigration attorney, for some useful information on the procedures and terminology.

Note on image: I realize people have a bad reaction to Nazi allusions. I'm not referring to death camps but the publicly announced deportations preceding 1941 using classifications for determining citizenship the same as the ones being used today. (U.S. foreign embassies on their web pages are suggesting applicants bring DNA samples!) The photo above is a German passport for a Jew issued in 1938, and is from a web page on Holocaust research for which I cannot vouch.

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