Kidnapped Canadian: Case Terminated But ICE Retains Custody, Part III

Drawing from recently obtained immigration court records, this is the third of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. Part I here; part II is here. For entire series, click here and read from bottom up.


On December 8, 2008, Kenneth Murray Danard, a Canadian falsely arrested by Border Patrol agents at the Sweetgrass, Montana Port and then kidnapped by Immigration and Customs Enforcement (ICE) agents on November 20, was taken to an immigration court inside an ICE jail in Florence, Arizona, the Florence Processing Center (FPC).

ICE was jailing a tourist who just wanted to go back to Canada so that the U.S. could deport him to Canada because, ICE alleged in a secret charging document, Mr. Danard's 1984 burglary was a Crime Involving Moral Turpitude (CIMT) and rendered him ineligible to enter the U.S. on a B-1 visa at El Paso, an event that never occurred and that the government never bothered to try to prove.

THE HEARING
The conditions under which the Executive Office of Immigration Review (EOIR) holds its hearings are an abomination to the concept of due process. By the time people held in the vast network of immigration prisons proximate to immigration courts in ICE facilities appear before an adjudicator, they have been standing since the wee hours of the morning in cramped rooms with no diversions or any other attention to their physical comfort.

If the conditions of life in the ICE jails were itself not grounds for abandoning their legal right to remain in the United States, the periods of waiting to see the adjudicators are one more reminder of ICE cruelty and the respondents' humiliation.

According to Mr. Danard, who was picked up with others from the Florence Correctional Center, a prison run by the Corrections Corporation of America (CCA),

at 4 a.m. they put you in a little room for hour after hour until they bring you in [to the hearing]. It's right in the immigration facility, a cell holding 25 people, standing room only. They put you through torture. We were there three hours and then people go to court room.

After their hearings the respondents are returned to the cell, the day interrupted only for lunch, consumed while standing in the same room. At 4:30 in the afternoon, they are brought back to their jail cells.

Watching people who have obvious legal status agreeing to be deported is tough--young men who have lived here since infancy cannot bear these conditions--and it is clear from their sometimes impassioned speeches that that the conditions of the hearings as well as the ICE jails are coercing false confessions to manufactured ICE charges, as eventually happened in Mr. Danard's case.

For Mr. Danard's first hearing the immigration judge, Richard Bartolomei, was in the building shown below, in San Diego, and the proceedings occurred via a televideo set up. Although Mr. Bartolomei possessed a copy of the NTA without Mr. Danard's signature, at no point did Mr. Bartolomei ask Mr. Danard if he had seen the charging documents.

According to Mr. Danard,

I had no idea what I was being held for. The guards claimed they had no access to my file, but that I wore a blue wrist-band ID meant I was not being criminally charged with a crime. I was surprised when Bartolomei said I had been charged with being illegally in the US, at the beginning of the hearing.

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Immigration hearings are recorded and anyone who wants to do research on deportation proceedings would do well to obtain a privacy release and contact the EOIR's FOIA office to obtain these and the rest of respondents' files. (Alas, some adjudicators realize that the recordings may reveal their perfidy and simply turn the devices off, something that is unlawful but occurs regularly and can be discerned, for instance, in the hearings when there are obvious starts and stops without any indication that the adjudicators are "on" and "off" the record, a frequent violation of the Immigration Judge Benchbook of which the EOIR is well aware and has not remedied.)

In the event, Mr. Danard's hearing opens with him saying, "To me, the most important thing is to get back to Canada," and provides a fascinating look at the nuts and bolts of what happens when an immigration judge follows the rules and ICE does not.

Mr. Bartolomei asked the ICE attorney if she had copies of Mr. Danard's convictions and could prove they were Crimes Involving Moral Turpitude. She did not have the convictions and she could not prove this.

As is often the case, the ICE attorney asked for a postponement. As is rarely the case, Mr. Bartolomei denied this request. (Shockingly, immigration judges, at the expense of respondents' freedom, regularly grant extensions to government attorneys who don't do their homework. Instead of being penalized for coming to court unprepared, the government is actually incentivized to do so because the longer they drag out the proceedings, the greater the chance is that the respondent will abandon their legal fight and the government will "win" the deportation order even though the individual is in the country lawfully.)

Mr. Bartolomei asked detailed questions of Mr. Danard pertaining to his 1984 conviction. The adjudicator found Mr. Danard "credible," and concluded that the burglary was a "petty offense exception" to the exclusion for a CIMT. (Mr. Danard at age 17 hooked up with some kids who had already broken a store window and helped carry out some VCRs. They were immediately caught, the VCRs recovered, and over a year later Mr. Danard was tried and received a suspended sentence.)

Mr. Bartolomei also ruled, incorrectly as it turns out, that Canada is a "visa waiver country" and this was another grounds for terminating the deportation order.

Bartolomei: "What does the government want me to do, seeing that this gentleman wants to go back to Canada just as soon as possible?"

ICE attorney [name is unclear on the recording]: "Based on these convictions I would like a continuance." (The government wanted to hold Mr. Danard while it obtained the conviction records.)

Mr. Bartolomei: "I am terminating today based on the fact that these are visa waiver countries and that he is subject to the petty offense exception. You can certainly reserve appeal."

Mr. Danard then says, "The most important thing to me is to return to my family. I'd like to go home tonight if it's possible."

Mr. Bartolomei issues his decision orally and confirms this with a written order consistent with his statements during the hearing.

No doubt an additional reason for the ruling is that the government had no evidence for its charge regarding his B-1 visa at El Paso, a point that Mr. Bartolomei pressed and that the ICE attorney could not address. (As discussed in the previous post, this is because Mr. Danard never had a B-1 visa and before the hearing, ICE never informed him that this was a crucial element of the charge against him.)

At this point, ICE has lost a case that it never should have brought in the first place. But rather than release Mr. Danard, ICE continues Mr. Danard's torture by reserving the right to appeal Mr. Bartolomei's order.

More to come, on the second hearing, ICE's extortionist efforts to abuse the appeal process through its Motion to Reopen, and ICE's current statement about this case.