Monday, April 24, 2017

Federal Court Rejects Prison Firm Akima Global Services Intervenor Motion, Orders ICE Contracts Released

Last week Federal Judge Harry Leinenweber of the Northern District of Illinois smacked down a private prison firm's effort to block Immigration and Customs Enforcement from releasing documents that Akima Global Services, LLC claimed contained proprietary information. The order of April 19, 2017 is part of ongoing litigation to procure information about how the private prison firms profit from the unlawful exploitation of those in their custody under deportation laws.

The passage most meaningful to me was the judge's response to Akima's invocation of deference ICE has shown to its previous redaction requests: 
AGS’s next argument is that ICE, by failing to exempt the Krome Contract, was changing its position that the Krome contract was exempt, and an agency must supply a “reasoned analysis” for such a new policy, citing Abraham Lincoln Memorial Hospital v. Sebelius, 698 F.3d 536, 555 (7th Cir. 2012). However, as ICE pointed out, the previous “decision” was not a formal decision of the agency itself but was an informal ruling made by an employee. Apparently there was no objection to the redaction made by the requester so no formal agency review was undertaken. Such an informal decision made by an employee would not be authoritative, unlike the decision at issue here, which resulted from a full agency review. (pp. 12-13)

Such a finding supports the importance of "forensic intelligence," that is, the largely untapped possibilities for scholarship that thwarts injustice by eliciting information the government does not release unless the public objects to the deference given corporate elites and agency cronies.

from Miami News Time investigative article

Akima runs a large facility in Miami, where the local media have highlighted ongoing abuse. Documents for the Krome facility I downloaded from a FedBizOpps website for the 2012 bid - reproduced in the appendix to this law review article  - reveal that Akima's kitchen operation is staffed by 30 people in its custody it pays one dollar per day and just six people employed from outside the facility. This violates a number of federal laws on labor and government contracts. Like similar facilities with ICE contracts, Akima fulfills virtually all its obligations to the government, save those of actual guard duties, by forcing those in its custody to work for slaving wages or no pay at all.

In the 29 months since Andrew Free, the brilliant civil rights attorney who represents me in FOIA litigation, filed the complaint, ICE has released thousands of pages of documents that I have discussed in my scholarship and on which journalists have reported, including the death by electrocution of Cesar Gonzalez after his jackhammer struck a powerline and sent 10,000 volts of direct current through his body. That said, we continue to battle to force ICE to remove the hundreds if not thousands of unjustified redactions, and to release dozens of documents still withheld in their entirety. (To support this work, please go here, or send funds directly to Attorney Free.)

Mother Jones and the Washington Post have covered the successful class action litigation underway against the GEO Corporation in Aurora, Colorado. For the orders in the Menocal lawsuit and the primary source documents obtained in our litigation, , please go here.

Monday, April 3, 2017

Tenth Circuit Orders Immigrant in Turlock, California Deported in Absentia, No Proof of Service

First Inn of Colorado, where ICE in 2007 sent Notice of Detainer for U.S. Citizen Peter Guzman, who was in the custody of the Los Angeles County Jail and had never been to the inn 

I was just browsing through recent Tenth Circuit opinions this morning and bumped into an order of March 30, 2017 deporting a Mr. Prabhjot Singh because he could not meet his burden of proving that the Executive Office of Immigration Review (EOIR) did not through regular mail send him a notice of his hearing.

For most people reading this, the order seems innocuous enough.  A guy from India is apprehended in March, 2014 in Arizona by a border patrol agent for entering illegally, blows off his notice to appear in immigration court, and then claims he never received it.  But a closer review raises questions not just about his case but the larger due process problems of relying on self-serving boilerplate statements of protocol by EOIR staff for deporting people whose affidavits offer evidence to the contrary.

Singh was first detained in Arizona and then transferred to Utah, where, 15 days after his apprehension, he was released on a  $7,500 bond after giving the Department of Homeland Security (DHS) a new address in Turlock, California.  On August 7, 2014, Singh is deported by an unnamed Salt Lake City immigration judge in absentia.  The Board of Immigration Appeals denies his October appeal to reopen the case, including his sworn affidavit stating he never received the Notice to Appear.

The Tenth Circuit affirms:
The alien bears the “burden of demonstrating the claimed lack of notice.” Gurung v. Ashcroft, 371 F.3d 718, 722 (10th Cir. 2004)“The burden is not alight one.” Id. “Evidence that the notice of hearing was mailed to the alien [at his most recent address] raises a presumption of receipt.” Thongphilack v. Gonzales, 506 F.3d 1207, 1209 (10th Cir. 2007); see also Gurung, 371 F.3d at 721-22 (“A notice to appear is sufficient, both for due process and statutory purposes, if it is sent by regular mail to an alien’s contact address of record”; “the alien must overcome the presumption of due receipt raised by the evidence of mailing”). “The alien must support his motion to reopen with affidavits or other evidentiary materials in order to overcome the presumption of receipt.” Thongphilack, 506 F.3d at 1210. Deliberate ignorance is most convenient and most difficult to disprove. The presumption is, therefore, most appropriate. 
In his affidavit, Singh admits he gave the government the Turlock, California, address upon his release from custody on March 25, 2014. He also admits he resided at that address upon his release. Nevertheless, in the same affidavit, he alleges he did not receive notice of the August 7, 2014 hearing. But, as the BIA aptly said, such self-serving, conclusory statements are insufficient. Thongphilack, 506 F.3d at 1210; see also Gurung, 371 F.3d at 722; Sajidi v. Holder, 438 F. App’x 693, 695 (10th Cir. 2011) (unpublished)
I'm posting this because a few details prompt some head-scratching.  First, someone in the DHS and possibly the IJ -- the order does not say if there was a bond hearing -- in Salt Lake City, Utah trusted Mr. Singh enough to release him on bond.  This was before the November, 2014 implementation of prosecutorial discretion.  And even with this, as a recently arriving alien, Singh would be in the second priority group targeted for removal. (The Tenth Circuit order does not review the substantive merits of Singh's claim to remain, but these facts are consistent with him passing a credible fear interview as part of an asylum claim.)  If he's credible enough for bond and DHS is at best not appealing, why is the judiciary essentially second-guessing the credibility findings of DHS and asserting Singh is not credible enough to believe about receiving mail?  (The fact that he is affirmatively trying to make his case in immigration court and not fleeing is itself evidence of his good faith testimony that the Tenth Circuit simply ignores.)

Second,  on March 25, 2014 the Department of Homeland Security (DHS) had a new address for Mr. Singh in Turlock, California.  Assuming he was pro se, why didn't the DHS, which granted bond, file a motion to change venue to California?  Even if the notice of the August 7 hearing were received, it would have required Mr. Singh to return to Utah.

Third, what crazy prejudice on the part of our judges allows the government to falsely imprison or kidnap people -- capture and send them away regardless of potentially legitimate asylum claims -- for no reason other than that the person about to lose her liberty cannot prove a negative, i.e., the absence of a piece of mail?  If proof of service is required for Colorado Small Claims courts for damages of up to $7,500, then how can the Tenth Circuit find any due process in deporting people without the government bothering to show the U.S. Post Office certified delivery?  (Indeed, this is the position of the Ninth Circuit, as characterized in a 2008 BIA decision published on this point.)

Fourth, Executive Office of Immigration Review (EOIR) administrators make all sorts of mistakes all the time, including with their own address (!), and the same for ICE, including not only deporting U.S. citizens but sending U.S citizen Peter Guzman's detainer to a Colorado inn in the Tenth Circuit, even though he was in the custody of the Los Angeles County Jail and had never been to Colorado.  If the government cannot afford to pay for Certified Mail to ensure Mr. Singh has his day in (fake) immigration court, it cannot afford to deport Mr. Singh.
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