Thursday, September 17, 2015

Colorado Judge Swats Down GEO's Motion to Reconsider Class Action Lawsuit Brought by Captive Labor Force, New Evidence of GEO Labor Violations


GEO claims paying people fair wages "will result in manifest injustice," and claims that ordering a trial by jury, i.e., the rule of law, "should be corrected before litigation in this case and other cases grows in scale."  (Menocal et al. v. GEO, Doc. 29, Motion to Reconsider, 2, August 4, 2015).

Federal District Court John Kane disagrees. (Doc. 31, Order, August 26, 2015).

In the latest round of motions from a lawsuit last October, GEO whined that laws designed to prevent exactly GEO's exploitation of labor had some other purpose, and that it would be absurd to follow their plain text.  One new argument was that the Plaintiffs had no expectation of fair payments for their labor.  And, GEO argued, it would really suck for them and other prison firms if the lawsuit were to proceed per the judge's previous order.

The judge's response, in two pages of text: the arguments either were the ones he already found unpersuasive from the first round, or a new argument that the Court will not consider "for the first time on a motion for reconsideration." 

New Documents Further Contradict GEO's Defense


Reimbursement invoices for the work program being released in dribs and drabs responsive to my FOIA lawsuit further document that GEO is making up its own pay scales and not just acting as a pass-through for ICE's $1/day payments last authorized by Congress in 1978.  Note that for GEO's Pearsall, South Texas facility, there is one column for the reimbursements from ICE and another for their own outlays.  This is consistent with other documents on which I reported in the working paper "One Dollar Per Day: The Slaving Wages of Immigration Jail, 1942 to Present," soon to be published in the Georgetown Immigration Law Journal.  (I'll fill in the link once it's published.)

This release further illuminates the conditions of a labor force compensated well below the minimum wage.  Excluded from these positions is the local community, once again highlighting GEO's violations of the Fair Labor Standards Act and the Trafficking Victims Protection Act (2008), codified in part in the statute prohibiting Forced Labor. 

According to18 U.S.C. 1589 (a) "Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means— (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person ... shall be punished as provided under subsection (d)."

The variation in wages suggests a rudimentary labor market, one with radically depressed wages because of captivity, and not people chipping-in because of boredom to help keep GEO in business.  This is more evidence that GEO is basing its business on forced labor -- were GEO not operating on a business model that assumes they can physically control their workforce, they would need to be paying wages of more than one dollar per day or even three.

Section (d) states: "Whoever violates this section shall be fined under this title, imprisoned not more than 20 years, or both. If death results from a violation of this section, or if the violation includes kidnapping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title, imprisoned for any term of years or life, or both."

While President Obama's rounding out his term by using his executive authority to enforce labor rights, maybe he should call up the Department of Labor and send out a few inspectors to check out GEO's cleaning, kitchen, and laundry employment practices in Colorado, Texas, and elsewhere, and charge them with violations of the FLSA and the TVPA.  Or, they could visit facilities run by the Correction Corporation of America or any of the other ICE facilities that use the same business model.

Thursday, July 23, 2015

NPR Airs Story on ICE Private Prison Labor

NPR reporter Alexandra Starr covers lawsuit and slaving wages to those in custody under immigration laws.  Listen here.

Note that in response to my assertion that those in ICE custody are not exempt from the protections of federal labo laws, GEO notes the dollar/per day level in an appropriations Act, but fails to engage with the fact the appropriation level set expired in 1979.   Note as well that there are many other labor laws that have little to do with wages, and from which there is not even old law that exempts from coverage those working for private prisons firms.

This includes standards of the Occupational Safety and Health Administration, and which were found by a California agency to apply to apply to a California resident in ICE custody courtesy of the Mira Loma Sheriff.

Thursday, July 9, 2015

Colorado District Court Green Lights Historic Lawsuit: Private Prisons Using Forced Labor of ICE Residents Ruled Illegal

Related: Recently Released Documents Show California OSHA 2008 Final Decision Ruling ICE Resident in Employer-Employee Relation with ICE Jail

In an historic decision, on July 6, 2015 Senior U.S. District Judge John Kane issued an order telling Defendant GEO Inc, that if people in their custody under deportation laws could prove they were forced to work, and that GEO was enriching itself as a consequence of this, then plaintiffs in a class action lawsuit would be entitled to millions in damanges. 

This is the first time a court has told a private prison firm housing people under U.S. immigration laws that it couldn't force them to work and that if it did, restitution and damages for this "unjust enrichment" could be pursued.

GEO holds more U.S. residents in custody under immigration laws than any other private prison firm, with the Corrections Corporation of America running second.  The case was brought against the GEO facility in Aurora, Colorado following attorneys reading a New York Times article featuring a link to my working paper, a revised version of which is now forthcoming in the Georgetown Immigration Law Journal.

After previous reporting on my FOIA findings failed to elicit legal interest, I decided to map out the program and legal history to help attorneys navigate a program that survived heretofore because of obscurity and ICE stonewalling on releasing information. Attorney Brandt Milstein saw the Times article, read my paper, and then contacted Andrew Free, FOIA attorney for the Deportation Research Clinic.  (Free is referenced in my paper's acknowledgements and footnotes for his insights based on his review of relevant government documents released under the FOIA).

Free, co-counsel on the case, provided legal research and arguments for the Plaintiff brief, submitted as well by co-counsel Nina DeSalvo, Executive Director of Towards Justice, and co-counsel Andrew Turner, and the rest really is now history.  Regardless of whether the appellate court overturns the decision, the United States now has on record a judicial order stating that private prisons may not force those in custody under immigration laws to work, and that firms can be held responsible for financial penalties if they are found to have done so.  The actual proof of these forced labor episodes is the low fruit--it is copiously documented--and the determination on these points of law will stand as a signficant developement in the history of civil rights accomplishments.

In the 1830s, prosecutors episodically attempted to hold slave owners, and those Whites who rented slaves, liable for criminal charges of cruelty or homicide.  Juries and judges were confused and voted or ordered in an ad hoc fashion--they were appalled by the specific events but also sensitive to the excuse that if people were property their owners could do with them as they pleased.  The legal theories in these cases helped crystallize intuitions about the inherent injustice of slavery and were part of the developing public debates in movements for its abolition.  Using the law to thwart injustice is a long-standing tradition in the United States, as is resistance to this and backlash.  This order is part of that tradition.

For the original complaint, and key excerpts, please go here.  The case is Alejandro Menocal et al. v. The GEO Group, Inc.,  1:14-cv-02887-JLK (D. Colo.).

 Less encouraging, and somewhat confusing, was Judge Kane's decision to follow the Alvarado Guevara precedent and those of Colorado state prison cases in finding that the Plaintiffs were not entitled to damages under Colorado's Minimum Wage Order.  (The specificity of findings related to the private prison profits seem inconsistent with the deference to the 1990 decision in the context of a federal government run facility, and the judge did not grapple with this distinction as it pertains to the definition of a labor market.)

In the event, this was the first case filed; a related cases is pending Suffolk County, Massachussetts and at least one more is being prepared.

New Documents Show ICE Knew Cal OSHA Ruled Mira Loma Work Program Fell Under Cal OSHA Jurisdiction: Employer-Employee Relation Found

Finally, according to information released to me recently through FOIA litigation I am now updating the forthcoming article to reflect the fact that in 2007 Cesar Gonzalez Baez, an ICE resident working for the Los Angeles Sheriff Department while housed at its Mira Loma facility, died after his jackhammer hit a power line and 10,000 volts of direct current charged through his body. Other horrified workers witnessed this.  After immediate brain damage Mr. Gonzalez died two days later.

The purpose of his labor?  Holes for new fence poles needed to expand the facility's perimeter responsive to ICE's demand for more bed space.   Cesar Gonzalez died so that ICE could lock up more U.S. residents.  (The Mira Loma facility was for those detained in the L.A area; when I observed hearings in 2009, everyone was a long-time resident of the United States and had extensive family ties; most were teenagers who'd grown up in the area and were picked up on minor or pretextual misdemeanor charges.)

There are numerous other episodes reflected in grievances released to me in this 501 page document. A full analysis is forthcoming in the law review article, but one point bears mention here: ICE's persistent confusion of its public affairs office with a propaganda outfit.  In the same time frame in which ICE was claiming to journalists, myself included, that the program was completely legal and that the ICE residents working in the facilities were not employees, the ICE top brass knew of a 2008 Caslifornia OSHA final decision finding that Cesar Gonzalez WAS in an employee-employer relation and that the LA County Sheriff had violated California's OSHA law.

ICE needs to stop pretending this work program is legal and at the very least immediately reflect the policy implications of the Cal-OSHA finding in its California private prison contracts, including with GEO's Adelanto facility, near Vacaville, the location to which the Mira Loma residents were transferred when that contract expired in 2012.

The Deportation Research Clinic, housed in the Buffett Institute for Global Studies at Northwestern University, conducts research informed by the emerging paradigm of forensic intelligence, whereby scholarship is tied to analyzing and creating new legal discourses and facts.

Thursday, June 11, 2015

Probable U.S. Citizen Robinson Martinez Returns After Deportation, Locked Up as Alien

 Caution: For Wonks Only!

This post reviews the statutory history of a portion of U.S. citizenship law that applies to children born of U.S. citizens out-of-wedlock after January 13, 1941; if interpreted by the statute's plain meaning, Robinson Martinez acquired U.S. citizenship at birth; if adjudicated based on ad hoc assertions about blanket effect dates for citizenship laws at odds with the plain language of the laws and code, he is not a U.S. citizen . 

"The Board," aka a single adjudicator,
Roger Pauley, wrote two contradictory rulings, one on February 12, 2014 and another on December 4, 2014, based on the exact same facts.  

Which one is right and why does this matter?

If you read the relevant statutes, as did Robinson Martinez, it would appear he acquired U.S. citizenship at birth by operation of law.  "The law" producing this status requires a close reading of several statutes and underlying bills (and the effective dates).  The single-authored Board of Immigration Appeals decision, relying on the plain meaning of the statute (8 U.S.C 1409 (b)) seems to have made the right determination in its February 12, 2014 decision, reiterating Robinson's reading of the law, pointing out the absence of a DHS objection to this, and remanding the case for evidentiary review and supporting Robinson's request for a change of venue for that purpose.

But on April 3, 2014, instead of implementing the order, Houston CCA immigration judge Saul Greenstein stood by his reversed order and, under a seemingly invented jurisdiction, sent the case back to his supervisors for review, depriving Robinson of his day in immigration court as previously ordered.

(I regret having to report this: IJ Greenstein was gracious in allowing my research assistant and me to observe hearings in his court at Houston CCA in 2013. His colleagues in that area thumbed their nose at the law requiring access.  Richard Walton told the guards not to allow my assistant to enter. Mimi Yam cancelled hearings.  And Clarease Yates locked us out.  Greenstein made a genuine and much-appreciated effort to keep his courtroom open.)

This is a tough case, not because of the plain meaning of the statute, but because of erroneous statutory interpretations inferred by the Board and various agencies.  They have been inventing a rule whereby the statute effective at the time of birth invariably determines one's citizenship status. This is demonstrably not true, and the echo chamber of administrative adjudicators and federal judges does not change this.

Some statutes confer citizenship at birth retroactively, discussed below; others exclude this.  In Robinson's case, the statute in 1986 specifically referenced the earlier time frame for his mother's date of birth, thus rendering her and in turn, Robinson citizens at birth, provided the evidentiary record supports this.

The principle advancing the analysis here follows the plain meaning jurisprudence favored for statutory analysis more generally. I favor it because it is the approach most amenable to government transparency and hence accountability.  If statutes mean whatever the DOJ attorneys or even judges believe suits their ideas of proper policy, independent of what the text says, then there is effectively no democracy, and no rule of law: we're stuck with whatever the folks in the robes say even when the plain meaning is entirely different. On balance, the decisions that hurt those in confinement are those that rely on prejudices and not the law in finding "absurd" results in the plain meaning of a text, thus depriving those Davids who are actually using the law to defend themselves any weapons at all against the government's Goliath.

Roger Pauley, BIA, Remand for change of venue and evidentiary hearing, 02-12-2014
Saul Greenstein, IJ, "Certifies" to BIA without hearing, 04-03-2014
Roger Pauley, BIA, Affirms legal analysis of Greenstein, 12-04-2014

Where Things Stand Now

Robinson was deported on December 12, 2014, without notice to his attorney and without time to file an appeal in federal court.  The quick action appears to have been retaliation for Robinson's persistent criticisms of CCA, including sharing information with me that was widely circulated in coverage of CCA's exploitation of their ICE detainees.  (He had been punished in other ways before this, including guards throwing away his legal documents during a transfer of him to Livingston.)

 On February 22, 2015 Border Patrol arrested and charged Robinson with Illegal Reentry (8 USC 1326(a)(1)(b)(1)).  He is being held at present in Brownsville, Texas, a classic example of how the prison industry uses deportation law to snare longtime residents for civil violations and then, when they return, fills up the federal prisons with people held on criminal immigration violations, a "crime" that is not only victimless but actually harms the general public.  (Mainstream economists agree on the overall benefits of free labor movement and labor markets.)

Admittedly, this is not an easy case; but most cases of people who are long-time residents of the United States are not easy: the government is demanding a biographical profile that fits its arbitrary classifications of borders and documents, and is not responsive to people's actual relationships, a complex web of commitments, dangers, needs, and fantasies.  The real problem is our fantasies about the importance of birth and family to membership in a political society, not failures of evidence, legal complexity, or life choices and imperatives.

That said, various components of the government are not up to the complexities of writing or understanding citizenship law. As has been said repeatedly by everyone from the Detention Watch Network to federal judge Richard Posner to immigration judge Dana Marks, the immigration courts are consistently unable to mete out decisions that comport with basic expectations of legality, much less justice.

The Facts: The Family Tree
The basic dispute on which the case hangs is whether Robinson's mother, Sara, was a U.S. citizen at the time of her birth in Mexico on July 4(!), 1952.

Her father, Gregario, was a U.S. citizen at birth in 1934; no one disputes this, nor that he and his descendants grew up in the vicinity of Mercedes, Texas, the site of his mother's birth.

Gregario was 17 years old at the time of Sara's birth in Mexico.

Sara was born out-of-wedlock to her mother, Maria.

Gregario's name is on Sara's birth certificate, and thus he legitimated her.

Maria and Gregario married in Hidalgo County, Texas in 1970.

Sara, then a resident of El Paso, gave birth to Robinson in Mexico in 1971.

She brought him back into the United States with her parents and they adopted him and raised him as their son and Sara's younger brother.

Robinson did not learn any of this until the U.S. government violated its public policy favoring preserving family relations and in 2010 put Robinson into removal proceedings.

The Law: Out-of-Wedlock Citizenship Law: 1941 to Present, Main Texts

Okay, it's a bit of a mess.  The key point is that the U.S. Code reflects a 1986 amendment that reduced the time of residence in the United States necessary for a father to convey citizenship to a child born outside the United States from five to two years after the age of 14 and did not restrict its coverage to those born on or after its passage.

Public Law 99-653, passed on November 14, 1986, simply states at Sect. 12 "Section 301 (g) (8 U.S. S. 1401(g) is amended by striking out "ten years, at least five" and inserting in lieu thereof "five years, at least two"."

(Public Law 97-116, Dec. 29, 1981, changes the relevant section number of the 1952 INA from 301 (7)(a) to 301(g).)

Thus, according to the plain meaning of the 1952 INA, Public Law 414 (June 27, 1952), as amended by the 1986 Act (Public Law 100-653), anyone born out-of-wedlock from January 13, 1941 through at least November 14, 1986, would have their citizenship status determined by section 301 (g) and in turn by Sect. 12 as stated above.

At present 8 U.S.C 1409(b) states:
Except as otherwise provided in section 405, the provisions of section 301(g) shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time while such child is under the age of twenty-one years by legitimation.
So Robinson and his attorneys, and Pauley in February of 2014 are reading this and quite sensibly infer that Sara, Robinson's mother, was a U.S. citizen at birth and thus conveyed this status to Robinson, when she left her hometown of El Paso and gave birth to him in Mexico in 1971.

Crucially, the 1986 amendment to the Immigration and Naturalization Act does not restrict coverage of these changes to ONLY those born on or after November 14, 1986.

According to the plain text, therefore, as soon as the President signed PL 100-653, Sara acquired U.S. citizenship via her father Gregario and thereby transmitted U.S. citizenship to her son, Robinson.

The fact that this is the plain meaning of the 1986 text is reinforced by a 1988 INA "technical" amendment, which states that the 1986 amendment at section 12 "shall apply to persons born on or after November 14, 1986."  (PL 100-525, "Effective Dates")  

Public Law 100-525
October 24, 1988

Congress attempts a do-over.

Section (2) states that "the old section 309(a) shall apply-- (A) to any individual who has attained 18 years of age as of the date of the enactment of this Act, and (B) any individual with respect to whom paternity was established by legitimation before such date."

Sara was both well over 18 and also had her paternity established by legitimation before October 24, 1988.

Does this mean that Congress can retroactively apply in 1988 a citizenship rule to Sara that is at odds with the plain meaning of the statute it passed in 1986? If so, then Sara's citizenship status would be determined under the Sec. 301 (7) in effect in 1952, where by Gregario would have to have been been a U.S. resident until he was 19 years old for her to have acquired U.S. citizenship from his paternity. It appears as though someone in either the INS or Congress was seeing people legitimately claiming U.S. citizenship on the basis of the plain text of the 1986 Act and wanted to prevent this.

But they can't do this.  Common sense indicates that it would be bizarre for Congress to tell Sara in 1986, we passed a law and now you are a U.S. citizen, and so are your children who may acquire this status from you under our citizenship laws, and then in 1988 to say, "We passed another law and, even though you did nothing wrong, we are retroactively changing the citizenship status of you and your son."

The law behind this common sense head scratcher is called the Ex Post Facto clause of the U.S. Constitution, or perhaps the Due Process clause.  

Does it matter that neither Sara nor Robinson had any clue about any of this in this time frame? Not if the courts are going to be consistent with their rulings on Congress's plenary authority more generally.  The courts have been very clear on the point that all that matters in citizenship laws is the texts thesmelves, not their coherence, disparate impacts, discrimination, or stupidity.  Once Congress passes a 1986 law that makes Sara a U.S. citizen by operation of law, it is unconstitutional to change her status retroactively, regardless of whether she personally knew or did not know about the law.  Presumably others did and that's why Congress changed it.

There's a difference between construing a law however one feels like construing it, i.e., ignoring the plain text of the 1986 amendment--and finding the plain text of a law unconstitutional, i.e., the decision to retroactively remove people's citizenship.  The claim cannot be that the 1986 amendment always entailed application only to those born before its passage: 1) it does not say that; 2) previous statutes are retroactive and there is no prima facie reason to infer the 1986 bill is not; 3) if the 1986 bill did state it was operative only to those born after its passage, then the 1988 language would not have been introduced.  The 1988 bill is itself the best evidence that the 1986 bill included Sara.

EOIR Analysis

IJ Greenstein, April 3, 2014
I am not aware of any Constitutional challenges to the 1988 amendments but the funny part is that Sara and Robinson aren't the only one who fail to attend to the importance of the 1988 amendments: Greenstein also ignores the 1988 Act, as well as the portions of the 1952 Act that, according to the current statute, incorporate the bill's retroactivity to January 13, 1941 for out-of-wedlock foreign births.

Greenstein asserts, without quoting the 1986 law, that it is "first effective in 1986, and thus does not apply to the issue of whether Sarita Martinez acquired U.S. citizenship."

Greenstein cites for this claim Lake v. Reno, 226 F. 3d 141, 144 n. 1 (2d Cir. 2000) and U.S. v. Sandoval-Gonzalez, 642 F. 3d 717, 720 n. 2 (9th Cir. 2011).

Lake v. Reno is irrelevant: the petitioner in that case was born in 1953, and thus not in the Jan. 13, 1941 - Dec. 24, 1952 time frame applicable to Sara and referenced in 8 USC 1409.

Moreover, the petitioner prevailed  on the merits of his due process challenge:  
Interpreting Supreme Court precedent as authorized by our own precedent, we find that the gender-based distinction mandated by section 309(a) of the INA violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment. We therefore conclude that petitioner Lake holds United States citizenship from birth under section 301(a) (7). The decision of the BIA is reversed.
The Supreme Court later overturned the Second Circuit opinion on this, citing its ruling in Nguyen v. INS 533 U.S. 53 (2001) (finding sex discrimination of the different requirements for conveying citizenship through paternity versus maternity constitutional).  But that precedent is tailored to claims about the parent/child relationship and not the validity of the longer requirements of U.S. residency for fathers as opposed to mothers.  (No doubt this has been challenged as well--if someone knows the case law on this I'd love to hear more about it.)

Likewise, Sandoval was born in 1957, again outside the range of the dispute Martinez has with the government's handline of his case.

Other than ignoring the Acts and current statute on which Robinson based his claim to U.S. citizenship, Greenstein appears to have invented a legal maneuver to bounce the case back to the BIA instead of following the Board's instructions by changing venue and allowing a new hearing (a proposal to which the DHS itself did not object and proposed Port Isabel, closer to Martinez's ailing adoptive mother/grandmother).

Specifically, Greenstein "certifies the case to the Board, given what appears to be significant legal error on the Board's part."  That's basically the equivalent of a district court judge telling an appellate panel it's wrong and instead of acting on the remand, sending it back up to the appellate court. The regulation Greenstein cites, 8 CFR 1003.1(c) allows for "certification to the board" under a large number of circumstances bearing on the administration of hearings, bonds, and custody in the immigration courts, but I don't see a criterion for IJ dissatisfaction with a Board decision.

THEN WHAT? December 4, 2014, Self-Reversal Without New Evidence

After Pauley receives the "You-blew-it" memo from Greenstein, a former staff attorney at the Office of Immigration Litigation, Ashcroft appointee, Roger Pauley, folds. Let's say Pauley and Greenstein are both men of integrity and doing their best: the upshot is that the law is so convoluted they can't figure it out. In such a circumstance, the decision in keeping with Due Process would have to be erring on the side of inclusivity, especially when the fact pattern is consistent with the broader policy goals favoring family unity. That is not the direction Pauley takes. Citing Iracheta v Holder, 730 F. 3d 419, 423 (5th Cir. 2013); United States v. Cervantes-Nava, 281 F. 3d 501, 503 n. 2 (5th Cir. 2002) (citing United States v. Gomez-Orozco,  188 F. 3d 422, 426-27 (7th Cir. 1999)); see also Matter of Rodriguez-Tejedor, 23 1&N Dec. 153, 163 (BIA 2001), he also affirms the notion that the statute in place at the time of birth controls criteria for citizenship.

First, the EOIR really wants to cite Iracheta, the one where the Fifth Circuit calls out the government for lying about a fake amendment to the Mexican Constitution?  Really?  More than anything else, Iracheta is a precedent for the proposition that the DHS and EOIR have zero credibility in their statements about citizenship law. To the point, Congress has repeatedly enacted INA laws and amendments that are retroactive and also prospective changes to U.S. citizenship claims, the caveat being these advance a one-way ratchet opening the window to U.S. citizenship, including the portion of the 1952 law that was retroactive to children born on or after January 13, 1941. In short, Greenstein and Pauley have in front of them the plain text of exactly the sort of retroactive laws they claim do not exist.

The law in effect for designating citizenship is whatever law Congress in the time frame of dispute indicates as its citizenship law, including bills passed subsequent to one's birth and that make one a U.S. citizen based on a legal fiction of retroactivity.

Not only 8 USC 1409 (b), which includes dates that retrospectively make citizens of those born out of wedlock between 1941and 1952, but also 8 USC 1407, 8 USC 1406, 8 USC 1405, 8 USC 1404, 8 USC 1403, and 8 USC 1402 also provide U.S. citizenship retroactively (e.g., a June 22, 1952 law stating "All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth").  

Matter of Rodriguez-Tejedor, 23 1&N Dec. 153, 163 (BIA 2001) references the 2000 Child Citizenship Act, and the federal regulations implementing it, which specify dates of eligibility that exclude the respondent, a clear difference with the 1986 Amendment on which Martinez is basing his legal challenge.

Pauley's citation of United States v. Cervantes-Nava is a case challenging the longer lengths of time required for residence in conferring U.S. citizenship to those born in foreign countries to those who are children of married parents.  It notes that the relevant statute is the one in place at the time of birth and ignores the plain text of statutes retroactively affording citizenship to those born decades earlier. 

Relevant Portions of Statutes

The Nationality Act of 1940
(October 14, 1940, Public. No. 853)

Sec. 201 The following shall be nationals and citizens of the United States at birth:  ...
(c) A person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has resided in the United States or one of its outlying possessions prior to the birth of such person;
(g) A person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who, prior to the birth of such person, has had ten years' residence in the united States or one of its outlying possessions, at least five of which were after attaining the age of sixteen years, the other being an alien: Provided That, in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years; Provided further, That, if the child has not taken up a residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes ipossible for him to complete the five years' residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease... 
[Exemption for child born abroad to American parent employed by government or with employment having substantial ties to the United States.]
(h)  The foregoing provisions of subsection (g) concerning retention of citizenship shall apply to a child born abroad subsequent to May 24, 1934.
 Section 205.  The provisions of section 201, subsections (c), (d), (e), and (g)...hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjuciation of a competent court.
  In the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child's birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.
McCarran-Walters Act
66 Stat. 238
Public Law 414 (June 27, 1952)
Sec. 301 (1)  The following shall be nationals and citizens of the United States at birth:...
(3) a person born outside of the United States and its outlying possessions of parents both of hwom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of suh person;

(7) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years...

Sec. 309 (a)  The provisions of paragraphs (3), (4), (5), and (7) of section 301 (a)...shall apply as of the date of birth to a child born out of wedlock on or after the effective date of this Act, if the paternity of such child is established while such child is under the age of twenty-one years by legitimation.

              (b) Except as otherwise provided in section 405, the provisions of section 301 (a) (7) shall apply to a child born out of wedlock on or after January 13, 1941, and prior to the effective date of this Act, as of the date of birth, if the paternity of such child is established before or after the effective date of this Act and while such child is under the age of twenty-one years of age by legitimation.

               (c)Notwithstanding the provision of subsection (a) of this section, a person born, on or after the effective date of this Act, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the motehr had the nationality of the United States at the time of such person's birth, and if the mother had previously been present in the United States or one of its outlying possessions for a continuous period of one year.
In 1986, Congress passed a law amending 301(g), codified at 8 U.S.C. 1401 (g);An Act To amend the Immigration and Nationality Act, and for other purposes
Public Law 99-653(Nov. 14, 1986)
Sec. 12.  Section 301 (g)  (8 U.S. S. 1401(g) is amended by striking out "ten years, at least five" and inserting in lieu thereof "five years, at least two".  

Sec. 13. Subsection (a) of section 309 (8 U.S.C. 1409) is amended--
(a) by striking out "paragraphs (3), (4), (5), (and (7) of section 301(a) and inserting in lieu thereof "paragraphs (c), (d), (e), and (g) of section 301"; and

(b) by striking out all after "wedlock", and inserting in lieu thereof "if a blood relationship between the child and the father is established by clear and convincing evidence, provided the father had the nationality of the United States at the time of the child's birth, the father unless deceased has agreed in writing to provide financila support for the child until such child reaches the age of eighteen yeras and if, while such child is under the age of eighteen years, (1) such child is legitimated under the law of the childs residence or comicile, or (2) the father acknowledges paternity of the child in writing under oath, or (3) paternity of the child is established by adjudication of a competent court."
 The 1986 changes to the INA were further revised by a 1988 Act to "make technical corrections in immigration related laws.
Public Law 100-525
Oct. 24, 1988

The Act states:
"(d) The amendment made by section 12 shall apply to persons born on or after November 14, 1986.
"(2) The old section 309(a) shall apply --
  "(A) to any individual who has attained 18 years of age as of the date of the enactment of this Act, and 
  "(B) any individual with respect to whom ppaternity was established by legitimation before such date.
"(3) An individual who is at least 15 years of age, but under 18 years of age, as of the date of the enactment of this Act, may elect to have the old section 309(a) apply to the individual instead of the new section 309(a).
"(4)  In this subection:
    "(A) The term 'new section 309(a) means section 309(a) of the Immigration and Naitonality Act as amended by section 13 of this Act and as in effect after the date of the enactment of this Act.
    "(B) The term 'old section 309(a)' means section 309(a) of the Immigration and Nationality Act, as in effect before the date of the enactment of this Act.
Public Law 8 USC 1409(b) (2012) states:
the provisions of section 301(g) shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time and while such a child is under the age of 21years by legitimation. 
Section 301(g) establishes U.S. citizenship for:
a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

Sunday, May 31, 2015

Deported U.S. Citizen Andres Robles Wins $350,000 Settlement, Records Corrected

Deported U.S. Citizen Andres Robles Wins Record $350,000
 False Records Corrected

Analysis of EOIR Cases Adjourned with Claims of US Citizenship: ICE Still Detaining and Deporting U.S. Citizens as Aliens, and Still Lying about It

Update covers (click to move directly to the section)
*Deported U.S. Citizen Andres Robles Settles Lawsuit
*U.S. Government Detaining and Deporting U.S. Citizens: Recent Timeline
*Analysis of Recent Data on Immigration Court Cases: "Alien Claim to U.S. Citizenship"
*Detained U.S. Citizen Jhon Ocampo
*Lawsuit by Deported U.S. Citizen Robert Dominguez, Government Fraudulently Revokes his Passport
*Deported U.S. Citizen 
Demetrious (Jim) Koukolomates in Greece, Attorney Andrew Free Obtains Termination Order, February, 2015
*Why this Matters, and Remedies

Andres Robles was 19 years old in 2008 when Immigration and Customs Enforcement (ICE) agents in Louisana ignored his claims of U.S. citizenship, as well as their own files that readily affirm
this status, and deported him to Mexico for three years. 

Eventually U.S. Citizenship and Immigration Services (USCIS) saw fit to issue him a Certificate of Citizenship, but
there was a problem. Since the government had deported him, the government could not provide him with the certificate, government employee Jonathan Crawford, New Orleans Field Director, helpfully pointed out:

Your N-600 Application for a Certificate of Citizenship was approved on June 15, 20011 [sic]. You derive [sic] citizenship on June 13, 2002, when your father became a naturalized citizen of the United States. However, since you were deported from the United States, we are unable to complete the N-600 application process and provide you with a certificate of citizenship.

Upon your return to the United States, please make an appointment at the USCIS office closest to your current location. At that time, the local office will be able to assist you in obtaining your certificate of citizenship.
Andres this letter confirming his U.S. citizenship, a Vice Consul with the U.S. Department of State denied Andres a U.S. passport document. In his denial letter, the Vice Consul stated: "[I]t does not appear that you have a claim to U.S. citizenship[.]”

Andres eventually made his way back in, thanks to the persistence of immigration attorney Larry Fabacher, who had to badger the U.S. government for months after the USCIS confirmed Andres's U.S. citizenship.

Just days after Andres returned to the United States with a U.S. passport card in August 2011, ICE issued ANOTHER immigration detainer against him, causing several more days of illegal detention.

The errant paper trail ICE created and then failed to correct apparently prevented Andres from obtaining a Social Security card, Louisiana Driver's License, and the everyday benefits citizens derive therefrom.  Following several unsuccessful efforts by his older sister, Maria, to obtain legal counsel seek remediation, civil rights attorney Andrew Free, who represents the Deportation Research Clinic in our FOIA litigation, stepped in at the request of the Clinic and filed suit.  

Extensive discovery ensued, including revelations that the government was well aware of their mistake and were doing nothing to remedy it. Finally,
on May 1, 2015, the United States Government agreed to correct Robles's records of all references to his "alienage" and deportation, and to pay Andres $350,000 in damages.

Absent such an intervention, U.S. government records would have recorded Andres's deportation as that of one more "criminal alien."  The lawsuit not only provides Andres well-deserved compensation, it also corrects the record, a key objective for the forensic intelligence paradigm that guides the Deportation Research Clinic scholarship. Lawsuits such as these provide data necessary for accurate scholarship and journalism on U.S. deportation policy; they highlight the criminal misconduct perpetrated by the government in contrast with putative civil infractions of immigration law Immigration and Customs Enforcement is authorized to prevent. 

(For more details, see the Andres Robles tag on the blog States Without Nations, which broke the story and followed Andre's efforts to return in 2011.)

U.S. Government Still Detaining and Deporting U.S. Citizens

Andres is not the only U.S. citizen deported and seeking redress.  This update provides analysis of data on U.S. citizens in deportation proceedings from January 1, 2011 to September 30, 2014.  And it updates the status of two other deported U.S. citizens: Massachusetts native Roberto Dominguez, deported when he was 19 to the Dominican Republic and U.S citizen Dimitrios Koukoulomates, unlawfully banished at the age of 42 to Greece, a country he had not been to since he was a child.  

Journalists and scholars have been reporting on these violations throughout this period, but to no avail.  In the last decade, officials of Immigration and Customs Enforcement (ICE) went from stating they did not know how often this occurred, to categorically denying these events, to claiming, in 2013, that the practice had occurred but new steps by the agency had corrected this and the problem was historic.

Timeline of ICE Statements on the Unlawful Detention and Deportation of U.S. Citizens: Key Statements and Actions

- Several U.S. citizens in the presence of ICE Assistant Secretary Gary Mead testify at Congressional hearing about their experiences being arrested and detained by ICE. 
Mead sticks to script and pretends as though they never gave the testimony he just heard. Claims ICE has no record of US citizens in ICE custody.
"Problems With ICE Interrogation, Detention, and Removal Proceedings," Hearing before the House Subcommittee on Immigration, Citizenship, Border Security, Refugees, and International Law, House Judiciary, 110th Congress, June 4.

-"ICE does not track the number of U.S. citizens it detains."
ICE attorneys responding to an inquiry by the House Subcommittee chaired by Zoe Lofgren looking into U.S. citizens detained  problem. 
From Problems With ICE Interrogation, Detention, and Removal Proceedings, Hearing before the House Subcommittee on Immigration, Citizenship, Border Security, Refugees, and International Law, House Judiciary, 110th Congress, Report, Note 5 at 139.

-"ICE does not knowingly detain U.S. citizens."
ICE spokesperson Brandon Alvarez, email to Stevens for a Nation magazine article.
"Thin ICE."


-"ICE does not detain U.S. citizens."
ICE spokespeson Richard
Rocha in interview.
Andrew Becker and Patrick McDonnell, "U.S. Citizens Caught Up In Immigration Sweeps,"Los Angeles Times, June 9.

"ICE never detains U.S. citizens."
ICE spokesperson Barbara Gonzales, in response to my follow up questions, telephone, June 9, 2009.  

late 2009-2010

-ICE establishes e-mail address for reports to headquarters of claims to US citizenship for those in ICE custody.  4,000 pages of email responsive to this
are produced between its inception on November 19, 2009 and March 1, 2010. 

- Stevens publishes 115 page analysis of ICE detaining and deporting U.S. citizen, shows from 2006-2008, one percent of deportation proceedings in southern Arizona detained population (10% of country, most from California jails), terminated because of U.S. citizenship and an estimated .5% of deportations as U.S. citizens. Analyzes protocols for 53 deportions of U.S. citizens. "U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens" Virginia Journal of Social Policy and Law, 18(3).

-Articles in national and local newspapers continue to document U.S. citizens in ICE custody and deported. Here are three examples.

Sandra Baltazar Martinez, "Santa Fe Man One of Thousands of Legal Citizens Incarcerated by ICE," Santa Fe New Mexican, November 20.

Paul McEnroe, "U.S. Citizenship No Defense Against Deportation," Minneapolis Star-Tribune, December 11.

Julia Preston, "Immigration Crackdown Also Snares Americans," December 11. (Please go here for 2011 correction of Preston's now demonstrably inaccurate claim that there were no U.S. citizens in 2011 who had been deported.)

Ted Robbins. "In Rush to Deport, Expelling U.S. Citizens," NPR, October 4.

-Teenage Houston native Jakadrian Turner attracts national attention when she returns from her deportation to Columbia.
Patrik Jonsson, "Deported Teen Returns to the U.S.  How Many Americans are Mistakenly Banished?" Christian Science Monitor, January 7.

-ICE propaganda machine shifts from denying ICE ever deports US citizens to publishing an announcement of toll number for US citizens in ICE custody.

link to archived ICE home page with advertisement of toll free number here
link to archived release page here


-In April, the New Yorker magazine publishes an article reporting on Professsor Stevens's research on the deportations of Mark Lyttle and other U.S.

-In May, the New Yorker publishes a letter responding to the article by John Morton, then ICE Assistant Director, stating that Lyttle’s experience was a “rare and unfortunate case dating back to 2008” and that ICE had “new safeguards to protect against the possibility of a citizen’s detainment or removal.”  The claim is not just that ICE is protecting against a citizen's detention, but that ICE is protecting us from even the possibility of this occurring.

EOIR FOIA Case No. 2014-23528 

The Executive Office of Immigration Review releases to the Deportation Research Clinic data on 1,219 individuals with immigration court hearings between January 1, 2011 and September 30, 2014 whose cases have adjournment codes indicating "Alien Claim to U.S. Citizenship," an oxymoron for a hearing that may determine the adjournment was because of a U.S. Citizen Claim to U.S. Citizenship.

256 orders terminated for cases adjourned because of "aliens" claims of U.S. citizenship,
an unknown portion of all cases in which U.S. citizens receive deportation orders.  

After reading Morton's letter, Clinic Director files request for all documents on which Morton relied in drafting this reply.
109 page file is incomplete but shows that when Morton wrote the letter he was aware of cases of US
citizens in ICE custody AFTER the implementation of the third wave of "new" protocols.
Cover letter on scope of response
ICE FOIA Case No. 2015-ICFO-00500 Response

Morton has in his possession several cases, including an Indiana ACLU demand for jury trial for naturalized U.S. citizen in ICE custody, an Illinois U.S. citizen in ICE custody for six days, and a New Jersey born U.S. citizen in ICE custody, as well as a memorandum directing "aliens to call the LESC if they a United States citizen..."

The position seems to be that if ICE admits it holds U.S. citizens for hours or days, and covers up the longer detentions documented below, then then it's okay to call them "aliens" and give them a phone number, avoiding the legal fact that even in these cases there was no probable cause for suspecting alienage other than racial profiling and that ICE holding U.S. citizens in these circumstances is false imprisonment and kidnapping.

The release also contains several cases in which there are complaints of US citizens in ICE custody and ICE field office denials, but no investigation of the accuracy of the field offices's responses.  Morton has no basis for crediting the self-serving narratives provided by the ICE agents who have U.S. citizens in their custody. Unless there is a lawsuit, the ICE claims will prevail but could be inaccurate.

Jhon Ocampo
For instance, one of the items in the release of ICE documents on U.S. citizens in Morton's possession references ICE's arrest of U.S. citizen Jhon Ocampo, and includes this link to its first report on States Without Nations, as well as reference to inquiries by a "liberal weekly alternative newspaper in Springsfield."  The ICE narrative Morton has claims that once Ocampo produced documents proving his U.S. citizenship he was released, six days later.  But that's just wrong, AND, it doesn't match the Answer the government gave two years later, after Ocampo filed his lawsuit.

Ocampo actually proved his U.S. citizenship the same afternoon the agents arrived at his house and arrested him--his state identification showed who he was and DHS had the records showing when his mother naturalized when Ocampo was under 18. 
ICE released him only after the attorney Ocampo's mother hired called and not because of new documents. The attorney had no additional documents, suggesting ICE knew all along it had no case and folded quickly when called on their bluff.  By stating otherwise, the ICE agents lied to Morton and everyone else.

Also, what is the legal basis for holding him after he's asserted his U.S. citizenship and ICE has all the evidence it needs for confirming this? What about the revised policy indicating people claiming U.S. citizenship should not be held?

From a comment left on the Ocampo post:

Anonymous said...
These same agents illegally arrested my husband, a US citizen, born and raised here by US Citizens, and within our borders! I have been hoping you would file a civil rights suit against them and was glad to see you did. Rock on!

They took him to that same house. He spent a horrible night in the snake pit that is Sangamon Jail. I will be watching your case carefully and cheering you on!
Mark Fleming at the National Immigrant Justice Center in Chicago is representing Ocampo.

The complaint is here.

The government answer is here.

Note that in the original narrative, ICE claims they held Ocampo until he produced documentation of his U.S. citizenship, and never denies he immediately asserted his U.S. citizenship, nor claims that on the date of his arrest he represented himself as a legal permanent resident.

But in their answer to the lawsuit two years later, the government claims Ocampo never asserted his U.S. citizenship until after he was held for six days and that six days after his arrest Ocampo's attorney informed Ocampo of his U.S. citizenship, claiming that before that Ocampo "represented to the Department of Homeland Security that he was an LPR."

Ocampo's story is consistent: Ocampo told ICE agents Glen Harrington and Michael Mitchell that he was a U.S. citizen immediately on their arrival to arrest him. The agents in Ocampo's presence spoke on the phone with his mother, who also told them that she and her father had naturalized and their son was a citizen.  The initial narrative elsewhere in the Morton release also indicates the ICE Springfield office did not have Ocampo's file, further undermining the credibility of the account in their Answer.

The ICE claims at different time frames contradict each other, but the pervasiveness of their inventions themselves is persistent, from the bottom up and the top down.  If any other organization were run in a fashion that financially incentivized lying to law enforcement in service of holding people without legal authority the leadership would be immediately charged with everything from RICO violations to kidnapping. The DOJ at least on occasion investigates these scenarios when it is local police agencies but ignores this daily, widespread malpractice by federal agents.

Analysis of Cases Adjourned Using a Code for Claim of U.S. Citizenship:
January 1, 2011 to Septbember 30, 2014

Clinic Research Assistant Elizabeth Meehan found:

-256 cases terminated following claims of U.S. citizenship

-51 cases closed administratively

-10 cases closed by ICE prosecutors
In sum, in 21% of all cases immigration judges at some point adjourned because of U.S. citizenship claims, the immigration judges wrote orders affirming the claims of the respondents.

In additional 5% (n=62), ICE abandoned
the deportation proceedings, for a total of 26% of cases terminated or otherwise closed following claims of U.S. citizenship. 

For the underlying spreadsheet, see
EOIR FOIA Case No. 2014-23528

These 1,219 cases are not the total number of cases in which respondents asserted U.S. citizenship, but a fraction of an unknown total.  Even though these data provide no information on the absolute numbers of US citizens in deportation proceedings they reveal several important pieces of information.

1)  109 U.S. citizens were in ICE jails on the date when their orders were terminated; an additional 47 had been in ICE custody on charges of alienage and were released before their final hearings.

2)  Those not in ICE custody prevailed in 44% of their claims of US citizenship (n=147 terminations, n = 334 never detained or released), compared with 12% percent for those who were detained (n=109 terminations, n = 886 detained).

3)  All 10 cases dismissed by prosecutorial discretion were for respondents with attorneys; 82% of cases closed by adjudicators for non-detained respondents had attorneys (n = 23 non-detained closed); and 50% closed by adjudicators for detained respondents had attorneys (n=28 total closed).

4)  The Oakdale, Louisiana Detention facility, where Andres was held, reported 74 cases adjourned because of claims of U.S. citizenship, of which 10 were terminated. 


2013 Detained U.S. Citizen Frank Serna Calendar: No Adj. for USC Claim

It is important to underscore that the FOIA dataset on which the above analyses are drawn is incomplete. It omits all cases in which respondents claimed U.S. citizenship and an immigration judge used a different adjournment code, e.g., one for seeking time to find an attorney, as happened in Andres's case, or that of Francisco "Frank" Serna, a U.S. citizen in ICE custody for over 13 months who contacted me about about his detention a week after the New Yorker published Morton's propaganda.

Immigration Judge Jimmie Benton coded the adjournments in Serna's case as being for adjudication of an application for a green card (I-130), not a Certificate of Citizenship (N-600).  So U.S. Serna, who TWICE had his deportation orders terminated because ICE could not prove alienage, does not appear in the EOIR release data as claiming U.S. citizenship.  (The references to Serna filing an application are all to his application for a Certificate of Citizenship.)

The higher rate of termination orders among those never detained cannot be explained by correlating this status with a likelihood of prevailing on their
citizenship claims.  Deportation custody determinations are based on whether an individual is a "danger to the community" or a "flight risk." Congress requires mandatory detention in immigration jails of putative non-citizens convicted of an aggravated felonies following the conclusion of their prison sentences.  Those in detention pending deportation proceedings are more likely to be there because of prior criminal convictions than those who are lack a criminal record.  Previous research on U.S. citizens whose deportation occurred between 2003 and 2008 revealed they all were in ICE custody following their release from prison or jail.  

In other words, U.S. citizens who are incarcerated are more and not less likely to end up in removal proceedings than those who have no criminal record.  

Therefore, the lower rate of termination orders for those asserting U.S. citizenship while in ICE custody (12%), compared with 44% who prevail among those not detained, strongly suggests a false determination of the citizenship status for poor men who are in prison, as was the case for Andres Robles, as well as Robert Dominguez, and Demetrious "Jim" Koukolomates, whose cases are discussed below.

Finally, the release also omits data for those who never appeared in an immigration court, but who simply agreed to deportation or were released, for instance, that of U.S. citizen Jhon Ocampo.

Roberto (Robert) Dominguez
In 1999, when he was 19 years old, Robert, was released from jail in his hometown of Lawrence, Massachussetts, where he was born.  Instead of a bus dropping him off at the downtown court house, he was taken to various facilities run by then Immigration and Naturalization Service (INS); appeared in immigration court in the Batavia, New York detention facility; and, without an attorney, asserted he believed he was a U.S. citizen, but then backed down after being handed inaccurate documents from his INS file and was "deported," an option only possible for aliens. 

After 10 years of wrongful banishment to the Dominican
Republic, Robert procured a U.S. passport and returned home.  In 2010, instead of actions consistent with Morton's claim that the government was redressing old problems, the government reinitiated efforts to deport Robert, including in 2011 revoking his U.S. passport.  

In the last two years, Robert's legal team, led by Andrea Saenz of the Cardozo Immigration Justice Clinic, has filed a lawsuit demanding the State Department recognize his U.S. citizenship. 

The complaint has copious documentation of Robert's birth in the Lawrence hospital,  including the 
from his basinette with his name, Baby Dominguez, as well as an original photograph from the hospital, also with the name Dominguez.  

Robertos basinette tag

The government's Answer is to conjure TWO Roberto Dominguezes. To advance this fantasy, they will need to show by a preponderance of the evidence that there are two Roberto Dominguezes who were both born to parents living at the same address, 70 Cross Street, Lawrence, Massachusetts; both born in November, 1979; and that the Roberto Dominguez suing the government somehow obtained the bassinette tag, birth certificate, and infant photographs of the U.S. citizen infant Roberto Dominguez and is using these ORIGINAL baby records from someone with the same name, physical characteristics, and other biological markers of U.S. birth, including the plaintiff's circumcision (not done in this time frame in the DR), to fraudulently assert U.S. citizenship.

If this is hard to follow, you've read it correctly.

Voicemail messages asking for an explanation of the government's position in its Answer, left for Brian Ward, the lead trial attorney representing the State Department, part of a team of six U.S. attorneys bilking the U.S. taxpayers of hundreds of thousands of dollars, were not returned.

For more background, please go here.

The Complaint is here.

The Government's Answer is here.

Demetrious (Jim) Koukolomates

On February 19, 2015, an immigration judge in York, Pennsylvania, based on motions and evidence provided by Andrew Free, terminated an errant deportation order that has banished Jim from the U.S. for the last 12 years.  Jim was born in Greece in 1962. 

Jim immigrated to the U.S. in 1978, after his father died. Jim, when he was 16, automatically acquired U.S. citizenship when his mother naturalized. These simple facts on which the adjudicator relied when 2015 have been
in the possession of the United States for over 35 years.

Order for Matter of Demetrious (Jim) Koukolomates, York Immigration Court, February 19, 2015.

According to Jim, the problem began in his criminal bond hearing for a drug charge in 1990, when the prosecutor argued that Jim was not a U.S. citizen and thus a flight risk. The prosecutor was so vehement that Jim began to doubt his citizenship himself, "I believed a new law was installed and maybe I wasn't a citizen." The prosecution was arguing that Jim had to be under 16 years of age to automatically acquire citizenship through his mother, but the law plainly states a cut-off age of 18.  

While in prison he had a televideo hearing with adjudicator Charles Honeyman in York, Pennsylvania.  Honeyman ignored the statute, went along with the false claims asserted by the INS attorney, and in 2002 ordered Jim deported. In October, 2003 INS deported Jim, then 44, to Greece, a country he had not seen since he was a child.

Koukolomates describes the deportation as a “kidnapping,” and the State Department’s indifference to his request for a passport, “no different from Stalin’s Russia.”  

Despite the February order terminating the deportation and stating Jim is a U.S. citizen, the Athens consular office still refused to issue him a passport.  

On March 16, 2015, attorney Free filed a lawsuit against Secretary of State John Kerry and Abigail Aronson, Consul, Citizenship Section, U.S. Embassy, Athens.  The complaint sought "relief to compel the government to adjudicate [Mr. Koukoulomates's] passport action."

Three weeks after Free filed the complaint, and 25 years after federal prosecutors falsely stated the law on U.S. citizenship, the U.S. government finally recognized Jim's legal status as a U.S. citizen.

The insistence on an inaccurate rendering of law by the federal prosecutor in 1990, as well as the INS attorney and adjudicator in 2002 were hardly anomalies.

According to a 2013 federal appellate court decision, U.S. citizen Sigifredo Saldana Irachata's application for a Certificate of Citizenship was denied and he was in deportation proceedings because "no decision maker has clearly applied the correct Mexican statutes to Saldana's claim of citizenship."  The court goes on to note:

In both Saldana's case and other cases involving similar situations, DHS officers and the Administrative Appeals Office ("AAO") within DHS have relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claims they say. (Sigifredo Irachata v. Eric Holder, Jr., U.S. Attorney General, Case 12-60087 (Fifth Circuit Panel, September 11, 2013.)

The court ridiculed the government's excuses:  

Though the government attempted to dismiss the error as a mere 'typo,' we cannot agree.  It is unclear what legal authority the BIA actually relied on in Reyes...[T]he BIA's mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from applying the correct law in subsequent cases.  That error has wound its way through multiple agency decisions in immigration matters, which are significant to the impacted individuals.The government's position is that simple typography in one specific case misrepresented the Mexican Constitution.  But the judicial panel states the government is disingenuous on this point.  

The court points out how the iterability of the government's invention produced the status and identities of
numerous other citizens as aliens.  These decisions will ripple through the offspring of those registered on the basis of the BIA's version of the Mexican Constitution.

For over a hundred years, the U.S. government has been detaining and deporting U.S. citizens as aliens.  In recent years, approximately one in 100 cases in immigration courts will include someone whose deportation order is terminated because of claims of U.S. citizenship; an additional number of U.S. citizens make these claims but do not prevail and are deported, a figure that is about one half of one percent.

The basis for these estimates appears in recent work by Professor Rachel Rosenbloom at Northeastern University Law School, including her chapter forthcoming in Citizenship-In-Question: Forensic Challenges of Blood, Birthright, and Bureaucracy, Benjamin Lawrance and Jacqueline Stevens, eds. (Duke University Press), as well as earlier research cited above, along with the recent information presented herein: the procedures and cover-ups documented here indicate an absence of integrity and tolerance of systemic misconduct by ICE such that it would be shocking if U.S. citizens were not regularly detained and deported.

Likewise, some immigration court administrators and adjudicators, for instance, those in the Atlanta, Georgia, also perpetuate this problem.  (Forthcoming analysis of immigration judge misconduct complaints, undertaken with Professor Heather Schoenfeld and research assistants Elizabeth Meehan and Ary Hansen will elaborate on this.) 

Why This Matters

The detention and deportation of U.S. citizens demands attention for three reasons. 

First, the action is corrosive of the rule of law, so much so that one
federal judge refused to recognize the "deportation" of North Carolina native Mark Lyttle to Mexico as such and called it"banishment."  If the government cannot operate in such as a way as to ensure its own citizens are not banished as aliens, it is abandoning any claim for our trust that the government will respect other rights that follow from this bedrock right to have one's citizenship recognized as such.

Second, the detention and deportation of U.S. citizens as aliens is the 900 pound gorilla in the mine, so to speak. That is, miners rely on canaries for sensitivity to toxic fumes that would take much longer to overcome human beings.  U.S. citizens have more robust Constitutional rights than non-citizens, especially in deportation proceedings, and thus their civic death reveals alarming information on the deportation industry's overall legal toxicity.  When
the U.S. government falsely dismisses the claims to legal residence *by U.S. citizens*, then that is an inherently alarming and not just cautionary index of its more general failures to recognize claims to legal residence by non-citizens.

Third, and finally, the government's response to these cases has been lies and propaganda, not firing the agents behind these actions, much less prosecuting them for false imprisonment or kidnapping.  The New York Times editorial board has rightly demanded radical changes of America's deportation system, including the immediate closure of the massive web of privately-run prisons.  

conditions of unlawful violence and degradation inherent to the deportation machine are not only reprehensible in themselves, they also form the backdrop for the unlawful deportation U.S. citizens and other legal residents.

Changes Required

1.  The FBI's indictment of Denny Hastert for lying to them about private financial transactions suggests skewed priorities.  If the FBI wants to prevent assaults, robberies, and kidnappings of U.S. citizens and other U.S. residents in ICE custody, it should be prosecuting 
ICE officials and agents, including Ocampo's kidnappers Glen Harrington and Michael Mitchell, at minimum for lying twice, once in 2012 and a second time to the U.S. Attorneys handling their defense.  

2.An urgent short-term
palliative would require government-funded assigned attorneys to those who are detained and in deportation proceedings. The cases referenced above occurred in the context of an adversarial system in which poor men of color are forced to battle the world's largest law enforcement bureacracy without even access to their own records that the government itself maintains and is using against them, often unscrupulously, much less professionals trained in deportation law and dedicated to serve as their advocates.  

3. Government Accountability Office Audit of Executive Office of Immigration Review record-keeping for errors and fraud.  

4. GAO Audit of ICE record-keeping for errors and fraud. 

5. More distant changes require allowing citizenship criteria based on residence and consent, not birth.
The problems above are not only about employee errors and fraud but reflect the impossibility of these categories for lives, histories, and countries that are in flux, mutually engaged, and not amenable to archaic classifications of the earth's residents as "aliens." A summary of the rationale for this appears hereFor the theory and data, here's the book: States Without Nations: Citizenship for Mortals (Columbia University Press, 2009).

For more on the Deportation Research Clinic, Buffett Institute on Global Studies, Northwestern University, please see our website:

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