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 ...to 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.
 
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