Monday, April 25, 2011

DHS Falsely Imprisoning George Ibarra, U.S. Citizen, After Wrongful Deportations

On February 23, 2011 Department of Justice adjudicator Richard Phelps ruled in Eloy, Arizona that George Ibarra had by a preponderance of the evidence proven that he is indeed a citizen of the United States.

Rather than rely on this determination and apologize to Mr. Ibarra for previously wrongfully deporting him, the Department of Homeland Security (DHS) is holding Mr. Ibarra in solitary confinement at the Eloy Detention Center, in clear violation of the U.S. Constitution and a memorandum requiring Immigration and Customs Enforcement (ICE) to release anyone with "probative evidence" of U.S. citizenship.

Mr. Ibarra, 46, was born in Mexico but was raised since infancy in Arizona. In his late 20s he enlisted in the Marines and served three years on active duty, including time in Iraq, before being honorably discharged.

According to attorney Kara Hartzler of the non-profit Florence Project, Mr. Ibarra suffers from nerve damage sustained from time in combat as well as Post Traumatic Stress Disorder.

Moreover, his convictions, the trigger for him coming to the attention of ICE, were for actions whose criminalization is senseless in the first place, the sale of methamphetamines and the possession of drug paraphernalia, violations far less harmful than the government's kidnapping and false imprisonment of Mr. Ibarra.

In repayment for Mr. Ibarra's suffering in Iraq, Mexico, and now in the Eloy immigration prison the government's prosecutor Brett Day is appealing the adjudicator's decision and claiming that Mr. Ibarra's mother's U.S. Certificate of Citizenship and other documents that verify Mr. Ibarra's U.S. citizenship to the satisfaction of an immigration judge are not credible, arguments the adjudicator rejected:

The Court therefore concludes that the evidence offered rebut the presumption of Alienage as occasioned by his foreign birth is both substantial and credible and sufficient to rebut that presumption. In the absence of any further evidence of Alienage from the Department, the Court must conclude that the removal proceedings must be terminate.
While Mr. Day's decision to appeal this decision may be very poor judgment, Mr. Day's failure to ensure Mr. Ibarra's immediate release from the Eloy Detention Center in its aftermath pending a final determination by the Board of Immigration Appeals is unlawful. ICE has a policy of not imprisoning anyone with probative evidence of U.S. citizenship, a standard that is lower than that of the "preponderance of evidence" for this found by the immigration judge.

The day that Mr. Phelps terminated Mr. Ibarra's deportation order on grounds of his U.S. citizenship was the day that the law required Mr. Day to ensure Mr. Ibarra's release from Eloy, as have other DHS attorneys in similar situations. By failing to do so Mr. Day raises very serious questions about his commitment to the rule of law and thus of whether the U.S. government should continue to put in his hands such life and death questions as the confinement of U.S. residents. ICE's negligence in failing to ensure Mr. Ibarra's release provides further evidence of the horrors that result when the government tries to distinguish U.S. citizens from "illegals" and deport U.S. residents on the basis of antiquated fantasies about birth and lineage.

UPDATE, May 4, 2011: DHS releases Mr. Ibarra!!! On May 3 DHS released Mr. Ibarra from the Eloy Detention Center. For details, click here.

Please note as well comments from anonymous ICE trial attorneys below suggesting that DHS is not legally obligated to abide by DOJ's analyses when evaluating whether someone in their custody has proferred "probative evidence" of US citizenship, a chilling claim that violates the letter and spirit of the John Morton memorandum of November, 2009 which states: "In all cases, any uncertainty about about whether evidence is probative of U.S. citizenship should weigh against detention." If an immigration judge's determines that a respondent has proven U.S. citizenship by a "preponderance of the evidence" and this does not create at least uncertainty of the respondent's citizenship claim in the mind of an ICE attorney, then this is evidence of a strong and unprofessional bias against respondents inconsistent with not only ICE rules but the rule of law more generally.


Anonymous said...

It should be noted that Mr. Day has little to no authority to decide whether a case is appealed or an individual is released from detention. Those decisions are made by the head of the chief counsel's office, Maria Bjornerud, with some limited oversight by Patricia Vroom and Katrina Kane. Questioning their authority would merely result in Mr. Day being more heavily supervised, and being given less liberty to make these kinds of decisions in the future.

Richard said...

The previous anonymous poster seems to fail to recognize that Mr. Day (the ICE attorney) has independently sworn an oath to uphold the Constitution and the laws of the United States. The fact that a supervisor would like to take away his responsibility of exercising some independent judgment is no excuse for just following orders.

Another Anonymous Poster

Anonymous said...

According to the first anonymous..."Just Serve your superiors". Not only that our anonymous friend does'nt want any one to criticize Mr. Day, he goes one step ahead and suggests that Mr. Day's superiors whose order Mr. Day is following like a sheep should also be spared because otherwise they will supervise Mr. Day more closely. As if the whole purpose of the consitution and INA was just to make Mr. Day's and his ilk's lives comfy...If this view is not shameful, I wonder what is.

Anonymous said...

For what its worth, a few years ago I represented a gentleman detained in Eloy who also claimed he was a US citizen. In the end, after providing the Court with our evidence of citizenship, and after the Court ruled in our favor, the attorney representing DHS reserved appeal.

Literally as soon as DHS reserved, the IJ went ballistic. I mean, he was visibly angry. He yelled at DHS counsel and said, "Ms. XXX, I know Alberto Gonzalez (he was AG at the time) requires that you reserve appeal in this type of case, but I am telling you that XXXX is a US citizen and unless you doubt that he is, you should not be appealing,"

I cant remember word for word what the Judge said exactly, but it was something to that effect and it had its intended effect b/c she withdrew the appeal there and then and my client was released that same afternoon.

Anonymous said...

Since when does DHS policy become law? The article states that DHS has a policy of not detaining individuals with probative evidence of United States citizenship and the minute the immigration judge terminated removal proceedings, detention was unlawful. Obviously, DHS does not believe there is probative evidence. Moreover, the immigration judge's decision isn't final until there has been a ruling from the Board of Immigration Appeals and potentially the Ninth Circuit Court of Appeals. Perhaps Ms. Jackie Stevens should learn the detention provisions of the Immigration and Nationality Act before spouting such uninformed trivialities. I will leave the subject of United States citizenship laws alone because those definitely are too much for her to learn.

Anonymous said...

Is the judge going "ballistic" a good thing? This law professor certainly isn't, but judges are required to be impartial. Also, interesting that the professor thinks that drug trafficking shouldn't be a crime.

Anonymous said...

yeah, the author undermines his credibility and distracts from the issue by suggesting that selling meth isn't a very serious crime, which i would think most be would agree is.

Anonymous said...

Since when has the constitution or the INA ever mattered to DHS?
The point of the comment was merely to name those individuals who have created- and are petpetuating- the problem, lest they feel that they can hide behind their attorneys. Also, I think we should appreciate when new, reasonable attorneys join DHS, and not publicly trash them for decisions beyond their control. I doubt every DHS attorney realizes exactly what they've signed up for when they accept the job.

Anonymous said...

Mr. Ibarra's alleged drug activity is wrong, but the issue here is whether he is or is not a citizen of this country. If he is indeed a USC, his detention is wrong. Using the "I'm just following orders" excuse to deny another US citizen's right to liberty is lame as is the idea that his drug past should justify such detention. We do not have a gulag in this country or you can imagine how many US citizens druggies will be sharing space with Mr. Ibarra. Clearly, the commenter does not sugggest that we should detain all similarly situated US citizens. So, why is it ok to detain Mr. Ibarra? The color of hus skin perhaps?

Dave Bennion said...

yuck, are dhs officials posting anonymously on immigrant rights blogs now? or just run of the mill nativists. either way, it's creepy ...
if you're going to defend the continued detention of USCs, at least have the balls to put your name behind your arguments.

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