This is a copy of a "Notice of Intent to Issue a Final Administrative Removal Order" issued on September 5, 2008 to a U.S. citizen. It was canceled about eight months later, after Mark Lyttle had spent about four months stateless in Mexico and four other countries in Latin America. (For more on his experience, go here. And here.)
In the wake of a new Arizona law authorizing local police to make inquiries about residents' immigration status, people are beginning to realize how laws supposedly designed for aliens are affecting U.S. citizens.
As I've reported previously, the number of U.S. citizens already incarcerated by ICE are alarming: my research suggests that last year approximately 4,000 people who went to an immigration court with deportation orders had their cases terminated because they were U.S. citizens. (Of course this should not be that surprising: absent assigned counsel and a working immigration court, the real shock is that the number of U.S. citizens detained and deported is not higher.)
Especially disturbing are those who may have a legal reason to remain in the United States but are shipped out without the opportunity to even appear before an immigration judge.
Administrative Removal Orders
The legal instrument for deporting people without a hearing is either an Expedited Removal Order (usually issued at the border) or an Administrative Removal for Aggravated Felons.
According to the excellent researchers at TRAC, ICE has been handing these out in increasingly higher numbers. In 2006, the most recent year indexed, 55% of people deported did not have a chance to be heard before an immigration judge.
The only safeguard in the procedure is a requirement that those who receive these orders have ten days to challenge them.
The regulation states:
The alien will have 10 calendar days from service of the Notice of Intent or 13 calendar days if service is by mail, to file a response to the Notice of Intent. In the response, the alien may: designate his or her choice of country for removal; submit a written response rebutting the allegations supporting the charge and/or requesting the opportunity to review the Government's evidence; and/or submit a statement indicating an intention to request withholding of removal under 8 CFR 208.16 of this chapter, and/or request in writing an extension of time for response, stating the specific reasons why such an extension is necessary.(Emphasis added.)Of course if there's no opportunity to go to even the compromised "courts" available for people in immigration proceedings these procedures are unenforceable and, as it turns out, not always implemented.
ICE Agent Violates U.S. Citizen's Constitutional Right to Due Process
On September 8, 2008 an ICE agent working out of a clandestine facility in the rear of an office park in a Raleigh suburb visited Mr. Lyttle while he was in jail and gave him the Notice of Intent required for an Administrative Removal Order. (The document advises people they have ten days to challenge his deportation order.)
But Agent Faucette did not give Mr. Lyttle this opportunity. Instead of leaving the form with him and allowing him ten days to decide on how to proceed, she instructed him to sign the form in her presence, without him even having a chance to read it, and then she took it from him.
How do we know this? Is this a case of his word against hers? Not really. As the form indicates, the man Ms. Faucette was accusing of being "Jose Thomas" signed his name "Mark Lyttle" to indicate he had received the instructions at 12:05 p.m., the very same minute that he signed the form indicating he was waiving any appeal.
portion of form indicating Notice of Intent has been received:
According to the government's own document, Mr. Lyttle had been given not even one minute to read a piece of paper that was supposedly giving his informed consent to be sent to Mexico as a Mexican citizen, a country where he had no ties and where his lack of Spanish would prove, as it did in the rest of his exodus in Latin America, a major difficulty.
The form instructs recipients that DHS must receive the form in the mail within ten days, suggesting that the government believes it reasonable for people to have some time to contemplate their legal options:
The process by which Mr. Lyttle's signature was obtained is one that seems part of the ICE routine. An agent from the Criminal Alien Program office (in this case, the Cary subfield office), goes out to a prison or a jail, meets someone, shoves a form in his or her face, and gets the individual to sign it without a chance to read it or consider alternatives. Since the form's addressee is the Department of Homeland Security Office in Atlanta, there is no separate agency that might check on agent misconduct implementing the regulation.
This practice of assuming in advance legal questions that require protections of the rule of law and assigned counsel to be ascertained with any clarity if not justice is an ominous trend begun in the late 1980s and continued by Attorney General Eric Holder, most recently with his pitch to eliminate Miranda warnings for assumed terrorists.
Denying due process rights to citizens because they might be aliens, like denying due process rights to people because they might be terrorists, gives an illogical credibility to the unsubstantiated intuitions of law enforcement. It is not a likelihood but a certainty that under these conditions U.S. citizens have been deported, just as, pressured by law enforcement, people have confessed to crimes for which they are innocent, the very reason the Miranda warning was established.
The solutions are simple: assigned counsel for anyone in ICE custody and an increase in immigration court judges. Expensive? Maybe. Too expensive? Maybe. If so, then Congress needs to realize it lacks the resources to continue its reckless and irrational practice of paying uneducated armed thugs to interfere with the private lives of their constituents.
Post-script: Mr. Lyttle eventually was able to force an ICE agent at the Stewart Detention Center in Georgia to issue a Notice to Appear so that Mr. Lyttle could go before an immigration judge. As I've described previously, the Executive Office of Immigration Review attorney filling that position, William Cassidy, relying on dishonest ICE statements, broke various regulations, ignored Mr. Lyttle's statements, and deported him anyway.