Sunday, September 26, 2010

Kidnapped Canadian, Part V: ICE Holds Kenneth Murray in Arizona For Weeks After DOJ Authorizes His Release

Drawing from recently obtained immigration court records, this is the fifth 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 (arrest in Sweetgrass, Montana); part three here (first immigration court hearing), and part four is here (second immigration court hearing). For entire series, click here and read from bottom up.

The image above is the Florence Correctional Center, run by the Corrections Corporation of America. Kenneth Danard was unlawfully held here from November 26, 2008 to January 20, 2009, wearing what he said his podmates in the custody of Immigration and Customs Enforcement (ICE) called "chicken yellow" jumpsuits .

On December 29, 2008 Bruce Taylor, an adjudicator employed by the Executive Office of Immigration Review, an agency of the Department of Justice, issued an order that ICE release Mr. Danard under the terms of a voluntary departure. Mr. Danard's wife Rachel immediately purchased a plane ticket and provided the confirmation number to his deportation officer for the purpose of arranging a trip to the Phoenix airport and a direct flight to Edmonton as soon as possible.

ICE ignored this information, and two subsequent notes from Mr. Danard pleading for a trip to the airport so he could leave his confinement, paid for of course by U.S. taxpayers.

(The eventual monetary cost of the FCC incarceration would be about $5,400, a figure that does not include the ancillary labor costs for the attorneys, immigration court adjudicators and staff, and other administrative expenses, including the time of the Canadian embassy staff. The costs to Mr. Danard's business also are not figured here, nor the incalculable price of the loss of his and his wife Rachel's faith in justice and fair play.)

ICE records released to the Canadian government and then to the Danards show that on January 8 and January 9 Mr. Danard's deportation officer (the name appears to be Schlung), responded to Mr. Danard's queries about his departure by saying arrangements were being made and he would leave "soon."

Under the terms of a "voluntary departure" a respondent agrees to leave the country at his own expense, usually a very expensive open ticket, so that ICE can arrange the trip to the airport at its own convenience. The incentive for this and not a "removal order" is that the latter not only imposes more stringent requirements for attempting to return but it also leaves one at the whim of the government-paid flights organized by the U.S. Marshals. By granting Mr. Danard voluntary departure the adjudicator was attempting to hold up his end of the coerced deal (see previous post) and allow a speedy return.

Mr. Taylor, when he gave ICE until January 20 or "any extensions as may be granted by the District Director, Department of Homeland Security" envisioned this outside date as allowing Mr. Danard the maximum flexibility in obtaining his plane ticket--not purchasing a ticket by the stated date would violate the terms of the voluntary departure agreement and allow ICE to remove Mr. Danard on its own planes and with more stringent conditions for his return.

ICE took advantage of the regulation's demonstrably unfounded assumption that ICE would not deliberately incarcerate at taxpayer expense someone who had the legal authority and means of leaving the country, and waited until January 20, three weeks after the hearing, before giving Mr. Danard his freedom.

Last month I sent ICE's Ernestine Fobbs a few questions about Mr. Danard's case, along with a privacy waiver signed by Mr. Danard. I asked if it was consistent with agency policy for ICE attorneys to file a motion to reopen without evidence sufficient to overcome a termination order, and also whether it was consistent with ICE policy to hold people for several weeks after they had procured an order for voluntary departure and a plane ticket to their home country.

Ms. Fobbs replied:
It is ICE's policy that we do not comment on ongoing investigations and
pending legal actions. However, for the information that you are
requesting you can submit a FOIA request.
In my response I pointed out that "ongoing investigations" and "pending legal actions" are two separate matters and asked which one specifically was the alleged grounds for not replying. And I mentioned that her last sentence appeared to be an error: "I am not sure how you understand that this is a request covered by the FOIA. The FOIA does not require agencies to produce new information about policies, as the
questions I posed anticipate."

The Freedom of Information Act covers only systems records, i.e., documents the government already has on file so to speak. The Public Affairs office is the appropriate office for reaching out to agency officials for answering policy questions.

Ms. Fobbs did not reply nor did she respond to two phone messages requesting elaboration. Moreover, in early September Mr. Danard finally received his DHS file in response to his own FOIA request. It is a 118 pages. 109 pages are blacked out. The FOIA exemption cited was a law enforcement investigation.

I recently noticed in correspondence forwarded to me by the Danards that in March, 2009 the Department of Homeland Security's Office for Civil Rights and Civil Liberties replied to the Danard's complaint about their treatment by stating that their letter was being forwarded to ICE's Office of Professional Responsibility (OPR), as this was the component appropriate for reviewing their concerns.

Rachel wrote that she tried to follow-up but nothing happened:
I phoned a few times, to inquire on our case. They kept telling me they never recieved my complaint, and I gave up, guessing that's what thay were tring to
accomplish, another DHS win.
The letter stating the matter was forwarded to the OPR would be seen by the FOIA office folks who would immediately flag that as a reason not to release the file, even if there was no actual investigation.

The DHS's abuse of the FOIA exemptions is not a situation unique to the Danards. In the case of Mark Lyttle, a North Carolina native who speaks no Spanish and whom ICE deported to Mexico, ICE refuses to respond to a FOIA request for his own hand-written grievances written while he was unlawfully locked up in the Stewart Detention Center in Lumpkin, Georgia. The office did confirm that he submitted eight grievances totaling 20 pages between November and December, 2008.

In Mr. Lyttle's case ICE is not even claiming that it has initiated an investigation but only that one is "pending," a position the DHS Office of the General Counsel upheld after I appealed it. (I stated that the time-lag between the events in question and the "pending investigation" was not consistent with any legitimate law enforcement efforts--what sort of inquiry is going to happen almost two years after the fact?--but was consistent with hiding behind this FOIA exemption to avoid transparency and accountability. (It is of course impossible to know if an investigation is actually pending until it actually happens; all we know for certain at this point is there is a possibly pending investigation. This obfuscation is typical of ICE, which refuses to provide a time frame for falsifying its assertion of a pending investigation.)

Mr. Danard writes, "John Lennon summed it up when he said our leaders are all insane."

Many of Mr. Danard's problems occurred because bad laws authorized a context for empowering ICE and border patrol agents to think they could behave unlawfully as well. For instance, a law that authorizes the government to keep people locked up WITH NO REGULATIONS governing their treatment is going to empower the people running these places to feel authorized to do anything at all, as is a law that allows the government to lock up foreigners without assigning them legal counsel.

Likewise, a law whose purpose is to give special privileges to Canadians needs to be rewritten when its effect is to deprive them of their liberty, and the same for the voluntary departure regulations.

Still, there are at least two moments of Mr. Danard's apprehension and incarceration in which the government clearly broke even the flimsy laws that might have protected him:

1) The Border Patrol agents in Canada deliberately provided false and misleading information on the charging document--they only had legal grounds for charging him with being inadmissible at their own port of Sweetgrass, Montana, and not El Paso, the port indicated on the Notice to Appear. Instead, knowing that Mr. Danard had left the U.S. and therefore requiring him to apply to re-enter from Canada, and knowing that he never entered El Paso as a B-1 visitor, these agents deliberately omitted crucial information that would exonerate him and stated false information consistent with immigration violations that were the basis of a false arrest.

DHS components have the authority to hold someone who is inadmissible at the border, but DHS components do not have the authority to do so under false pretenses and deny those in their custody due process rights, most importantly the right to know why one is being held.

2) No one from DHS at the port, in transit, or even when Mr. Danard was in ICE custody for 9 weeks, gave him a copy of the charges against him, nor did his deportation officer meet with him even once. (ICE claims deportation officers meet with incarcerated people at least once weekly, a statement that people who are being held find a joke. I have never encountered anyone in ICE custody whose deportation officer has met with them weekly.)

If someone is held without legal authority and moved across state lines without his consent, this is kidnapping. Mr. Danard's legal custody by ICE requires that it follows certain steps, including most importantly, allowing him to know the conditions under which he is being held and giving him a list of people who might provide legal assistance. The officers signing off on the lines verifying Mr. Danard's receipt of these documents, including his alleged request for a hearing as opposed to waiving this right, say these documents were "refused," evidence consistent with Mr. Danard's claim they were never provided to him. (Further evidence of this is that the Canadian officials had to obtain the charges from the U.S. government and share them with Rachel, weeks after Mr. Danard's arrest.)

It is one more black mark on the immigration courts in ICE jails that not one but two adjudicators, including Bruce Taylor, who made a big show of Mr. Danard's "rights advisals" at the beginning of the hearing, failed to ascertain that through the course of two hearings, and eventually his entire time in ICE custody, Mr. Danard had never received a copy of his charges. ICE agents know these are systemic failures and rely on the incompetence of the adjudicators to cover-up their document fraud.

3. ICE is abusing the FOIA exemptions for law enforcement investigations, not surprising in light of the darkness advocated by the White House and Attorney General more generally.

Finally, the Danards are furious at their own government as well, for not pressing harder on the U.S. to assist in Mr. Danard's release. However, Canada has its own border policies and is upsetting U.S. citizens who, for instance, are refused admission because of drunk driving records--one of the few countries to make this grounds for inadmissibility--or for left media affiliations. Canada makes mistakes and holds people at their own ports for hours and even longer, posing significant hurdles to travel that perhaps gives the Canadian government pause when it comes to questioning the egregious practices of its neighbor.

Mr. Danard writes, "As to all this immigration nonsense, it bothered me watching my European counterparts deporting so many folks whose ancestral roots were at least American, be it north, central or south. Most of us are immigrants. I raised three Ojibwa step-sons. Maybe one day they will deport us back to Europe."

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