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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