On December 9, 2008, Immigration Judge William Cassidy wrongfully deported a man born in North Carolina. He ignored Mark Lyttle's signed and sworn statement that he was a U.S. citizen and his name was Mark Daniel Lyttle. Instead, Judge Cassidy believed an Immigration and Customs Enforcement (ICE) agent's baseless allegation that the man before him was really Jose Thomas, a name that I believe was invented by an ICE agent in North Carolina.
Neil Rambana, based in Tallahassee, is Lyttle's attorney. Yesterday he thought he would take advantage of a trip to the Atlanta immigration courts on behalf of another client and examine Lyttle's "alien" files. (Lyttle is a U.S. citizen, so this nomenclature for his records is an oxymoron.) Lyttle and anyone else in deportation proceedings has two files, one maintained by ICE and another by the Executive Office of Immigration Review.
Federal rules and regulations require EOIR and ICE to give Rambana access to these files. But agencies that deport U.S. citizens may not be so careful or even honest in complying with the law.
Rambana told me that at 10 a.m. yesterday he submitted the form Lyttle signed indicating that Rambana was his attorney. Rambana asked to see Lyttle's file and was rebuffed, "The clerk, Garrett, checked the database and said, 'This file is at the BIA [Bureau of Immigration Appeals].'" Rambana walked away for a moment to think, then returned and said, "There really is no reason for it to be at the BIA. Can you inquire further? I'm perplexed." Elaine Komis, spokesperson for EOIR, and Barbara Gonzalez, spokesperson for ICE both state they show nothing indicating an appeal of Judge Cassidy's April 27, 2009 decision rescinding his 2008 deportation order.
Because the appeal period is 30 days, the case is considered open and the EOIR file should be in Atlanta, as files are held in the courts where the last hearing occurred. Gonzalez confirmed that Lyttle's ICE file is in Atlanta. Rambana said the clerk had no further information, and "no one seemed to know where it was" beyond the unverified record indicating its presence with the BIA. [UPDATE: Rambana's hunch was confirmed. Komis wrote today: "If a case is ongoing at an immigration court, the case file would be at the immigration court."]
The clerk took Rambana's phone number and said he would call once he learned where the file was being held. Over 24 hours later, Rambana has not been notified about the whereabouts of Lyttle's EOIR file. When I called EOIR to ask about this, Komis told me I needed to file a FOIA. A FOIA for learning a file's LOCATION???
(I sent Komis a copy of the ICE waiver Lyttle signed and said that if that were not sufficient to answer questions about the file's location, he could sign another specific to the EOIR; she told me without further explanation that a waiver was not sufficient and I would have to file a FOIA.)
The EOIR is under the jurisdiction of the Department of Justice, run by self-proclaimed Mr. Transparency, Attorney General Eric Holder. This action is another signal that when it comes to the EOIR the Obama administration is more hype than hope.
I asked for the legal justification of requiring a FOIA for information about a file's location, and not its contents, especially since, as I explained to Komis, one needs to know the file's location before filing a FOIA. It may be somewhere in the EOIR, or it may be somewhere else entirely. If it's supposed to be in Atlanta and isn't there, then why believe it's even with the EOIR at all? I am awaiting a response and will update this post if and when that is received. [5/13 UPDATE: This is the response-- "Persons who are not a party to a proceeding before the immigration court must file a FOIA request to access information related to an individual’s record." This is of course not a response to my question about how to file the FOIA if one doesn't know where the file is located.]
Rambana next went to visit the ICE attorneys' office, to see if he could review their file on Mark. He was again rebuffed, "No one would talk to me." They told him he needed to make an advance appointment. "I was most frustrated they would impose that limitation. People travel from all over the country and you cannot expect people to make an appointment and come back with people who don't live in your area. I'm very disturbed by that."
Dan Kowalski, Austin immigration attorney and an expert on immigration court procedures said, "If he has a signed G-28 [the form Rambana presented to the immigration court clerk] he has the right to see the file." [UPDATE 5/13: EOIR Spokesperson Komis wrote today stating: "The Freedom of Information Act authorizes access to an alien’s record," but this is incorrect. Kowalski pointed me to the Immigration Court Practice Manual 12.2: "(A)Inspecting the record. — Parties to an Immigration Court proceeding, and their legal representatives, may inspect the official record of proceedings by prior arrangement with Immigration Court staff. A FOIA request is not required."
The same holds for Rambana's right to have access to his client's ICE records.
Kowalski referred me to 8 CFR 292.4 (b):
Availability of records. During the time a case is pending, and except as otherwise provided in §103.2(b) of this chapter, a party to a proceeding or his attorney or representative shall be permitted to examine the record of proceeding in a Service office. He may, in conformity with §103.10 of this chapter, obtain copies of Service records or information therefrom and copies of documents or transcripts of evidence furnished by him. Upon request, he may in addition, be loaned a copy of the testimony and exhibits contained in the record of proceeding upon giving his receipt for such copies and pledging that it will be surrendered upon final disposition of the case or upon demand. If extra copies of exhibits do not exist, they shall not be furnished free on loan; however, they shall be made available for copying or purchase of copies as provided in §103.10 of this chapter.
Cynthia Long, Atlanta Immigration Court Supervisor referred my question about the file location to the Public Affairs office in Washington, DC. I told her I was not interested in the file contents, only its location, and that the attorney had not been able to learn this. Her response was not comforting: "Once they locate it, they will contact that person. If the file is here." Meaning what? If EOIR throws the file away is Rambana not notified? If they hide it behind a file cabinet? What if they send the file to Mexico?
Rambana is resisting conspiracy theories but still wonders, "Why are they hiding this file? What's going on? Everything is already on the table. If anything it's to their advantage to make sure that nothing is misinterpreted or miscommunicated, because it will all be there in the file."
[UPDATE, 5/15/09: There has been a new, disturbing twist to the saga of EOIR's actions concerning the deportation of Mark Lyttle that may account for, but not excuse, the EOIR file's absence from the Atlanta court house. (Sorry to be mysterious for now, but within two weeks I can explain.) In the event, if any government agency wants to review an open case file, then it needs to make a copy, not remove the file from its proper place, especially without notifying the attorney. Rambana still has not been contacted by anyone in Atlanta, the BIA, or the EOIR with information on the file's location. The ICE file on Lyttle is in Atlanta and the ICE attorneys have no excuse for not showing this to Rambana when he was there.]
[UPDATE, 5/15/09, I received the following message from Elaine Komis at EOIR:
EOIR regrets the misunderstanding. When you asked whether there is "a regulation/rule that authorizes attorney access to EOIR's alien files," EOIR's response was "the Freedom of Information Act authorizes access to an alien's record" because your question referred to attorneys, not attorneys of record.
EOIR's subsequent response to you clarified that according to Chapter 12.2 of EOIR's Immigration Court Practice Manual, "Parties to an immigration court proceeding, and their legal representatives, may inspect the official record of proceedings by prior arrangement with immigration court staff. A FOIA request is not required."
Please refer any additional questions to the Department of Justice's Public Affairs Office at (202) 514-2007.
I had thought that the context of my phone call and email inquiry --asking why Rambana was not allowed to see his client's file maintained by the EOIR -- was sufficiently clear but apparently I was not specific enough.
UPDATE, 5/19/09: Received an email today from Neil Rambana indicating that the digital recording arrived in yesterday's mail. There is a related and pending matter that prevents me from saying more at this point but there is a lot more information forthcoming and it reflects extremely poorly on Mr. William Cassidy and the EOIR.