Friday, November 22, 2019

Dems Pass Giveaway to Tech Firms, Violate House Rules

 Sign at Trump Women's March, Dems Aiding and Abetting

UPDATE: Portions of this post appeared later in an article revealing Rep. Lauren Underwood's true colors published on January 4, 2020 in The Intercept: "Democratic Representative Pushed to Create a Massive Migrant Health Database that No One Wants.

Proclaiming solidarity with health care providers assisting arriving noncitizens at the border Rep. Lauren Underwood (D-IL) in late September urged her colleagues in the House to vote for  a measure that will create a mammoth health and biometric database, generate wealth for the private contractors who will run these systems, and obligate no actual medical care for anyone.

H.R. 3525 U.S. BORDER PATROL MEDICAL SCREENING STANDARDS ACT passed largely under the radar of established immigrant and civil rights groups and lawyers.  It was sold to fellow Dems as a bill that would combat the inhumane conditions at the border and help save lives, especially those of children. And yet while other bills the House passed actually do this (and will go on to die in the Senate), Underwood's bill does nothing other than mandate screening - not treatment - protocols and the creation of a massive database with no rules for privacy, data correction, consent, and NO BUDGET.

Congressional rules require bills provide a clear statement of their costs.  The report for HR 3525 includes a section to conform with this:
Congressional Budget Office Estimate New Budget Authority, Entitlement Authority, and Tax Expenditures With respect to the requirements of clause 3(c)(2) of rule XIII of the Rules of the House of Representatives and section 308(a) of the Congressional Budget Act of 1974 and with respect to requirements of clause (3)(c)(3) of rule XIII of the Rules of the House of Representatives and section 402 of the Congressional Budget Act of 1974, the Committee adopts as its own the estimate of the estimate of new budget authority, entitlement authority, or tax expenditures or revenues contained in the cost estimate prepared by the Director of the Congressional Budget Office.
However, instead of a bona fide analysis of the proposed bill by the Congressional Budget Office, the Report for HR 3525 uses an analysis of an entirely different bill, one passed in 2002:
H.R. 3525--Enhanced Border Security and Visa Entry Reform Act of 2002
CBO estimates that H.R. 3525 (enacted as Public Law 107- 173) will result in no significant net cost to the federal government. The act will affect direct spending, but we estimate that any net effects will not be significant. H.R. 3525 sets the amount of the machine-readable visa (MRV) fee at $65 and establishes a surcharge of $10 for issuing an MRV in a nonmachine-readable passport...
When I first read this I figured that the current HR 3525 was amending the Act from 2002 and would be relying on visa fees.  Why else would this analysis be here?  That said, I was curious as to the amount the CBO estimated it would cost to operationalize the program Rep. Underwood proposed and contacted Underwood's office, the Homeland Security Committee staff, and the CBO a couple weeks ago and requested they provide this information.

I'm still waiting.

To be clear, the rules require the inclusion of this information from the CBO in the House Report.

In the meantime, the floor debate underscores that the Majority Report is just plain wrong.  Mike Rogers (R-AL), Chair, Homeland Security Minority Committee in his floor speech on September 26, 2019 stated: "We have no idea how much this bill will cost because the majority failed to file a cost estimate from CBO."

Later, Rep. Jim Jones (R-IN) highlights the omission and the error:
There is no score or cost estimate whatsoever. The score that was filed is from the Enhanced Border Security and Visa Entry Reform Act of 2002, which is completely unrelated.  
We are being asked to vote on this legislation blindly. Based on the experience of institutions similar in size to CBP that have implemented EHRs, the price tag could easily run into the billions. Five to 10 years is a realistic timeline, not 30 days.

Altogether, I think this is a mistake, even if well-intentioned.
Also, Rep. Underwood asserts that the bill has the endorsement of Homeland Security itself.

And yet Rep. Rogers stated DHS opposed the bill as did the administration:
Mr. Speaker, I am curious about the announcement that the administration is in support of this and is working toward this, because they have already issued an announcement that they oppose this piece of legislation. So, if it did pass, it would be vetoed by the President.
Underwood is extolling to her colleagues the importance of an "evidence-based approach" to immigration law enforcement.  And yet she has failed to respond to the evidence of an error in a report for a bill she championed.  She seems also to have mispresented the official position of the agency she claims will be enacting it.

This is a pretty simple object-lesson in the gap between collecting information and using it for the greater good.   If Rep. Underwood cannot insure the accuracy of a Democrat-drafted Committee report on her own public bill after it has been scrutinized on the House floor and its errors clearly highlighted to the entire world via C-SPAN, that seems to be pretty good evidence on the failures of her logic about the importance of evidence for its own sake and the merits of HR 3525.  If a member of Congress cannot or will not act on clear evidence of an error after being aware of this for several months, why expect that information secretly collected and used by border agents and others in law enforcement will be accurate or used properly? 

The really sad part is that Democrats overwhelmingly supported Underwood's flawed bill, even though not a single member can tell you how much taxpayer money could be going to the coffers of Homeland Security contractors such as General Dynamics, 360 IT Integrated Solutions, or CASI Federal, Inc., or how exactly the data will be used or could be misused.

I am hoping to learn more about this bill and will publish more later, but wanted to make this information available to others following the role of interoperable databases and artificial (as in pseudo) intelligence in today's idiocracy.

Thanks to Daisy Conant and Pranav Baskar for assistance in reporting. 

Monday, August 5, 2019

Schroedinger's Citizen

"For the foregoing reasons, the Department is prepared to conclude Juan acquired U.S. citizenship automatically under INA Section 321, 8 USC §1432 on April 26, 1988." -- Memo of July 8, 2019

links to Juan's memo and previously unreleased State Department Memorandums interpreting 8 U.S.C. 1432 below

courtesy of Wikipedia
On July 8, 2019, the State Department announced that a deported alien was a U.S. citizen and would be issued a U.S. passport.  Juan had been waiting for this news for thirty years, over a decade of them in exile from his home and family.

Juan was born in Colombia.  When he was two years old he moved with his parents to Miami as a legal resident.  In 1987, when he was 11, Juan's mother naturalized.  Shortly thereafter his parents divorced. Juan received a notice from US Citizenship and Immigration Services giving him an appointment slot for receiving his Certificate of Citizenship.

Juan figured the government set up the appointment for his Certificate because the official who organized his mother's naturalization knew she had a son and the son was a legal resident and had derived U.S. citizenship via his mother's naturalization.  (Juan's brother was born in the United States and his father was a legal resident who did not naturalize.)

Juan showed up at the federal building in Miami with a relative, but his name was not on the list.  He showed his appointment card to an official.  She asked to see his mother, who was not with him. He went home and figured they'd sort it all out later. 

After Juan turned 18 he submitted an N-400.  And then another, and another, and another. He told me, "Apparently for some odd reason my A-file never left its repository.  The INS officials could never give me a clear explanation of what went wrong."  (An N-400 is the form for legal residents who want to become naturalized U.S. citizens.  You have to take a civics test most people born here would flunk and go through a criminal background check.  If you are already a U.S. citizen, as the State Department now recognizes was the case for Juan, it's like completing all the coursework through the twelfth grade with passing grades and then signing up for the G.E.D. instead of just filling out the paperwork for your diploma, the equivalent of which for a Certificate of Citizenship is the N-600.)

In 1996, when Juan was 21, Drug Enforcement Agents nabbed him for transporting $275,000.  They released him after the confiscation of the currency.  

Juan obtained a degree in Electronics and Engineering Technology in 2002 and worked in that industry until 2006, when he once again attempted to procure his Certificate of Citizenship through an N-400.  The examiner explained that he also was eligible for "derivative citizenship."  Juan says:
 I had no idea what she meant by the terms 'derivative citizenship,' so I just told her to proceed with the N-400.  Out of all the mistakes that the government has made, this seems to me by far the most crucial and devastating.   The examiner should have went through the path of derivative citizenship and not offer me another option.
The 2006 visit to the federal building entailed fingerprinting.  This alerted the feds to Juan's prior arrest and upon leaving the examiner's office he was charged with money laundering and taken into custody.

Juan served his sentence of one year and one day, reduced by the judge from the plea deal he had accepted for four years.   

In December, 2006, Juan was driven five hours from an ICE facility in New Mexico to the El Paso Processing Center.  He told me that in the courtroom, before the hearing officer arrived, the ICE attorney "approached us and said 'Hey, Juan, I know you're a U.S. citizen.   I have all the evidence and you satisfy the conditions. I'm not going to object to the evidence you provided.   The last thing I need is a civil suit for deporting an American citizen.'"  

But a few minutes later, the hearing officer, Thomas Roepke, ordered Juan deported.  "The IJ claimed that I was removable due to the fact that my mother did not have sole legal custody.  My lawyer, the DA [ICE trial attorney], and myself were shocked to hear the outcome."

Juan remained only a month in Colombia.  "I feared for my life.  My mother was kidnapped in Buga, 1997."  Juan still does not know what became of her.  "Her husband was found dead about two weeks later."  Juan moved to Germany with his brother, who was in the U.S. Army.

A few weeks ago Juan received a phone call from the U.S. Embassy in Madrid.  A consular official told him, "Things have changed, Juan, for the better."  Soon after, Juan obtained his U.S. passport. 

The State Department's analysis lays out how this happened.  It is a model of legal clarity.  The official quotes from the relevant case law, administrative decisions, and memorandums on derivative U.S. citizenship.  Juan wanted me to post the letter in its entirety because he knows it will help many others who find themselves in this situation.  (It will be especially helpful to folks in the Eleventh Circuit who were under 18 when just one parent naturalized and their parents divorced and had joint custody.)

Ambiguous Categorical Representations
"Schroedinger's Cat" is a thought experiment created in 1935 by physicist Erwin Schroedinger to illustrate what he claimed was the paradoxical absurdity of a potential condition that simultaneously has two mutually exclusive attributes, e.g., a cat being alive and dead. Citizenship law reflects this. At any given point one either is or is not a U.S. citizen. And yet, consider the following regulation:
 An alien whose claim to lawful permanent resident, refugee, asylee status, or U.S. citizen status cannot be verified will be advised of the penalties for perjury, and will be placed under oath or allowed to make a declaration as permitted under 28 U.S.C. 1746, concerning his or her lawful admission for permanent residence, admission as a refugee under section 207 of the Act, grant of asylum status under section 208 of the Act, or claim to U.S. citizenship.  A written statement shall be taken from the alien in the alien's own language and handwriting, stating that he or she declares, certifies, verifies, or states that the claim is true and correct. From 8 CFR § 235.3 - Inadmissible aliens and expedited removal.
Of course if "the alien"  is a U.S. citizen, then a U.S. citizen is verifying her U.S. citizenship.  Like Schroedinger's cat, the alien of the regulation may be a citizen, and not even a dual citizen, in the case of those who are born in the United States and have been deported, such as Pedro Guzman, Mark Lyttle, and Roberto Dominguez.

Subsequently, philosophers argued such a scenario was not at all absurd.

Paradoxes about knowledge are abstract.  The legal analysis of the meticulously documented 13-page single-spaced memorandum is concrete:
Although the Property Settlement Agreement attached to the final Order of Dissolution provides for 'shared parental responsibility' for the children (Juan and his sibling), which falls afoul of the sole legal custody requirement announced in Bustamante-Barrera, 1) the Department maintains that the legal custody requirement of former INA 321(a)(3) is satisfied even if the parents are awarded joint custody (See TABS 11 and 16); and 2) two DHS/USCIS Administrative Appeals Office (AAO) opinions (albeit one non-precedential) have since concluded that Bustamante-Barrera does not apply in the 11th Circuit which is where the events giving rise to Juan's citizenship claim under INA 321 took place (specifically, Juan's mother's naturalization, the dissolution of the marriage of Juan's parents and Juan thereafter residing as a legal permanent resident with his mother in Florida after the dissolution of his parents' marriage on April 26, 1988 when he was 12 years old.
TAB 11 refers to a 1996 State Department Passport Memorandum 96-18.   The Memorandum suggests that the interpretation of custody by the Department of State goes back to the previous version in 1993.
Legal Custody
The  Department  has  not  changed  its  interpretation  of  what  constitutes  'legal  custody[.]'  As  stated  in  the  referenced  Bulletin,  in  cases  where  the  divorce  or  separation  decree  does  not  specify  who  has  custody  and  the  naturalized  parent  has  physical  custody,  the  child  can  be  documented  as  a  citizen  under  Section  321(a)(3)  provided  that  all  other  conditions  of  the  law  are  met.  Section  321  does  not  require  sole or exclusive legal custody. If the parents have a joint custody  decree,  then  both  parents  have  legal  custody.  Thus,  the  naturalization  of  either  parent  would  be  sufficient  to  satisfy  the  Section  321(a)(3).  If  there  is  a  specific  question  about  the  sufficiency  of  legal  custody  evidence,  OCS, PPT and INS agree that we should review the matter on a case by case basis. (Emphasis added.)
As State notes in its recent memorandum, this interpretation since 1993 conflicts with the decision in Bustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006).

One thought would be that the statutory interpretation of the Fifth Circuit supersedes an agency.  The agency seems to concede this is the case for the Fifth Circuit and the Ninth Circuit, which cited Bustamante-Barrera and decided similarly in U.S. v. Suchite-Casola 670 F. 3d 1023 (9th Cir. 2012).  Memo pp. 5 - 7.

Bustamente-Barrera did not consider the State Department Passport Memorandum.  Suchite-Casola did:
We must conclude that the non-precedential, BIA statutory interpretations are not worthy of any deference, because they conflict with the words and obvious meaning of the statute. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004) (refusing to grant any deference when the agency decision was "contrary to the plain and sensible meaning of the statute" and would lead to an irrational result). Indeed, the only authority cited by the BIA from the time § 1432(a) was in effect is an unpublished 1996 Passport Bulletin issued by the State Department, an agency that does not enforce these immigration laws. The BIA's additional reliance on regulations later adopted by the Department of Homeland Security to implement the CCA is unpersuasive, because the CCA superseded the controlling statute in this case. Rather than follow unpublished, BIA decisions unworthy of deference, we instead give the statute a sensible interpretation and thereby agree with the only circuit decision that has addressed this issue, the Fifth Circuit's decision in Bustamante-Barrera, 447 F.3d at 395-96.
A couple thoughts.  First, the authority for this interpretation is not solely the 1996 Passport Bulletin.  As quoted above, the 1996 Bulletin actually references back to an earlier version of the Bulletin, from 1993.  The State Department also reiterated this policy in 2013.   In other words, on at least three separate occasions State Department staff have interpreted the statute consistent with the plain text and to align with the needs of U.S. citizens.  This is the agency that is doing the hands-on work of implementing the law.   Typically judges defer to such practices unless they are clearly at odds with the text or absurd.  The State Department interpretation is neither. 

Here is the text in dispute.  It indicates that if the following criterion is met, a child under 18 who entered as a legal resident automatically derives U.S. citizenship by operation of law.
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents...
Juan's mother naturalized.  Shortly thereafter his parents legally separated.  His mother had physical and legal custody of him, though it was joint legal custody.   The judges claim that State Department interpretation "conflict[s] with the words..." but the plain text does not support this claim.
Second, which interpretation is irrational?  One that separates U.S. citizen parents from their children, and siblings from each other, or one that keeps them together?  The judges in Buastamante-Barrera  and  Suchite-Casolaare are considering Schroedinger's citizens, i.e., the uncertainty and ambiguity of citizenship status, to be the "irrational result." The State Department officials are saying that what's really irrational is creating certainty by killing the cat.  To avoid this, the State Department is interpreting the law such that people who could be U.S. citizens - the law's plain text does not require sole custody of the naturalizing parent - are U.S. citizens. 

Third, as a matter of law,  Suchite-Casola seems to misstate the division of labor between the State Department and Homeland Security.  To the extent that Homeland Security enforces immigration law, as the Ninth Circuit opinion notes, it does so based on a prior finding of who exactly is a U.S. citizen. If the State Department and U.S. Citizenship and Immigration Services use criteria to define a U.S. citizen, then to enforce the law means not deporting U.S. citizens, and does not empower the agency to invent its own criteria.  If the courts are going to defer to any agency's interpretation of U.S. citizenship for those who are foreign-born, then it should be first to the State Department and then U.S Citizenship and Immigration Services.

Now that the cat is out of the bag, what happens next?  One thought is that many other wrongfully deported U.S. citizens will be able to make use of the State Department analysis here.  Another is that Trump apparatchik Mike Pompeo will want to deprive as many people as possible their U.S. citizenship and change the directive, even if it means a soldier in the U.S. army cannot live near his older brother, and the reversal would be at odds with over 25 years of policy, and prompt court challenges on several grounds, including for violating the Administrative Procedure Act.

Is the irrationality in U.S citizenship statutes their ambiguity, or that racist governments weaponize our complex biographies for scurrilous political agendas?  It is easy to be distracted by the confusion of birthright citizenship laws and their shifting standards of evidence.  Juan's ordeal persisted under the presidencies of Ronald Reagan, Bill Clinton, George Bush, Barack Obama, and Donald Trump, under whose leadership Juan finally was declared a U.S. citizen.

The real problem is birthright citizenship itself, jus sanguinis and jus soli, that is, the discrepancy between a citizenry produced capriciously through narratives of family history, birth, and lines in the sand irrelevant to good governance and a citizenry of those who distinguish themselves by vows to uphold the rule of law

Wednesday, July 17, 2019

GEO Wants Taxpayers to Foot Bill for Private Prison Exploitation

GEO Execs Demand More Money
click image to enlarge
GEO and ICE communications about litigation linked below

In the last five years, seven class action lawsuits have been filed seeking damages and injunctive relief from private prisons that stand accused of forcing people to work in violation of several federal and state laws.  In letters obtain from FOIA litigation, we now know GEO is demanding taxpayers cover their fees and even damages.  The government, even Trump's government, so far is refusing.

The first lawsuit was filed in Denver in 2014 against GEO Corp.  Judge John Kane saw through GEO's whining captioned as a Motion to Dismiss and an especially overwrought Motion for Reconsideration and allowed two of the three charges to proceed.  Other judges did likewise and even allowed the minimum wage claims to go forward, the one charge Kane had sidelined.

In 2017, GEO told the Tenth Circuit appellate panel that if the class action lawsuit in Denver were allowed to proceed it would pose a "a potentially catastrophic risk to GEO's ability to honor its contracts with the federal government."  

GEO also told the Tenth Circuit panel that "the skeleton of this suit could potentially be refiled against privately operated facilities across the United States, causing GEO and other contractors to defend them even though GEO firmly believes that policies give the Plaintiffs no legal claim."  

In early 2018, the Tenth Circuit panel unanimously green-lighted the litigation. Apparently they were concerned more about the rule of law than GEO's profits.  

On January 11, 2019, the plaintiff attorneys sent out the following notice to up to 60,000 people held in the Aurora facility: "If you were detained at GEO’s Detention Facility in Aurora, Colorado between October 22, 2004 and October 22, 2014, please read this notice. A class action lawsuit
may affect your rights..." 

After six more lawsuits were filed against private prison firms for using those in their custody to do the work on federal contracts and had survived the motions to dismiss, I was curious about how the government was responding and filed a new request for documents.  

Here are a few highlights from the 4,015 pages obtained to date, pursuant to ongoing FOIA litigation.   

In a February 14, 2018 letter from GEO's Senior Vice President of Business Development to Acting Director Thomas Homan we learn:

1)  GEO has been begging ICE to intervene and support their exploitation of immigrants and U.S. citizens in their custody. "There is an urgent need for the federal government to particpate in the current and anticipated future litigation, as well as to justify and defend the programs and policies that ICE requires of its detention contractors."

2)  GEO thinks the U.S. taxpayers should reimburse GEO for their legal fees and damages.  Of the Colorado case, GEO writes: 
The legal discovery costs could total several millions of dollars and potential damages could be in the tens of millions.  Understandably, GEO would need to be reimbursed for all of the costs through an equitable adjustment request to ICE. To date, GEO has expended $1,615,000 in legal costs for which we seek an equitable adjustment.
GEO's letter also noted an additional $442,000 in fees for its defense against two lawsuits in Washington and new litigation and laws threatening their operations in California, including one requiring GEO to release information:  "The City of Adelanto has recently received multiple broad reqeusts for information about the Adelanto facility under this provision from the news againcy BuzzFeed and one individual." 

Apparently GEO does not want the public to become aware of its operations.  (Just guessing they won't be thrilled about our reading their correspondence about them not wanting us to read their correspondence.)
3)  Just a few months later, in May, 2018 GEO ups the estimate of legal fees alone to $15 to $20 million, and claims damages could be in the tens of millions. (This seems low to me.  GEO provides no basis for this estimate.)

4)  GEO hopes that by dramatizing a mutual enemy, Washington State's Attorney General, perhaps ICE, a.k.a. "U.S. taxpayers," will pay off GEO: "the State of Washington's suit is pursued by Washington's Attorney General, who has publicly boasted of his victories over the current Administration, including several regarding immigration."

5)  GEO continues to live in its own legal bubble and presses claims that several judges rejected when it made these claims to ICE in February 2018:  "Decades of precedents under the Fair Labor Standards Act have upheld the $1 per day allowance for detainee work, holding that detainees are not 'employees' of detention facilities and that minimum wage standards are inapplicable to detainees...Yet, GEO finds itself defending the agency and its policies against allegations of state minimum wage violations."   This is absurd on its face.

If courts for decades were upholding GEO's legal analysis, the lawsuits would have been thrown out and GEO wouldn't be begging ICE for money.  GEO's own summary of the litigation makes it clear that some courts in recent years are holding that GEO's organization of work by those in ICE custody could be an employer-employee relation.

About one per cent of class action employment lawsuits survive motions to dismiss and go to trial.  For these class action lawsuits against GEO and CoreCivic to have gone this far, it's pretty obvious the firms made some big mistakes and might now have to pay for them.  (The mainstream media has stayed away from in-depth coverage, a reflection and perpetuation of the legal illiteracy that advantages the fraudsters who wrangle massive government contracts amid egregious violations of federal laws and regulations.)  
There are several problems for GEO and CCA. One challenge is that the law GEO's Senior V.P. references in the letter, 8 USC 1555(d), says that the payments should be "at such rate as may be specified from time to time in the appropriation Act involved."  The last time Congress set a rate in its appropriations act was 1978.  That appropriations act expired in 1979 and was for "no more" than one dollar/day.  It also was in effect during a time frame when few people were in detention for more than a few days. 

Anyway, on the one hand, GEO is claiming that it is paying people in accordance with this (irrelevant, because long-expired) appropriations act.  

On the other hand, GEO clearly is not doing even this.  Internal email shows ICE attorneys very attentive to how GEO is using the labor of ICE residents as a mainstay for its operations, including by paying in some cases up to six dollars/day to insure GEO has the labor supply to meet its ICE committments.  

In an email of July 20, 2017, one official writes, "It is interesting that GEO is paying different rates at the facilities."  A colleague replies 20 minutes later, "I know! I'm really curious why they would pay more at Jena.  It is odd. (But good, I guess?  Then again, I hear commissary items are outrageosly expensive.  So, they probably just recoup it all that way.)"

In the end, ICE and the Solicitor General put the law and the taxpayers before GEO and CoreCivic.  On June 21, 2018 ICE denied all of GEO's requests for contract adjustments to cover their legal fees in this litigation. (It's on the last page.) ICE also declined to file as an intervenor and refused to defend the private prisons.  

An amicus brief filed on April 1, 2019 by the Solicitor General, "in support of neither party,"  affirmed the Trafficking Victims Protection Act analysis of the plaintiffs and the district court judge, i.e., holding that a for-profit prison is not categorically excluded from TVPA protections:
As the district court [in the seventh case, filed in Georgia] correctly recognized, there is no basis for reading this broad provision to categorically exclude from its coverage facilities operated by private entities that contract or subcontract to provide immigration detention services to the federal government, particularly in light of Congress’s repeated efforts to ensure that federal contractors do not provide goods and services to the government through reliance on forced labor.
It's the Trump administration and filed on April Fool's Day so I just checked again.  Trump's S.G. really says this.

The Georgia case against CoreCivic, the facility that held Mark Lyttle and is the subject of the above S.G. brief, makes no minimum wage claims.  The Eleventh Circuit appellate court has not yet issued its decision on whether the case  can proceed.  If it adheres to the analysis of the district court and the Solicitor General, the case should be ordered to proceed.  If it does, the outcome will hang on whether the CoreCivic can prove it was running the facility consistent with the Performance Based National Detention Standards.  (We know from independent audits and the Office of Inspector General reports that CoreCivic has flunked already.)  

Some folks reading this may be wondering about the policy implications. 
It is becoming painfully clear that there is a fundamental contradiction between the rule of law and the operations necessary to regulate the movement of people across national boundaries.  

In light of this, a lot of Trumpists think it's fine to suspend with the rule of law, the thought being: do we really want to make it either more difficult or more expensive to exclude or remove those without legal authorization from the United States? If the cost of controlling the ancestry of U.S. residents means blowing off our labor laws, then so be it, runs this line of reasoning, with no small support from some bad U.S. Supreme Court decisions from the nineteenth century.

This response reflects the success of our kleptocratic leaders in controlling public discourse.  They encourage the assumption that the object of the game is arbitrary population controls and not our intellectual, political, and economic vitality.

The important questions are the ones the Republicans and the Democrats alike don't want us asking: if we want to deter from residing here people who drain the U.S. coffers and avoid paying taxes on their booty, then why aren't we deporting the Trump family, or for that matter the Pritzkers and the Crowns of Illinois, who for decades laundered funds illicitly funneled from government coffers to themselves in the guise of public spending, going back to war profiteering in the 1940s, and who continue this through bogus "philanthropic" gifts and tax deductions today?  

"Without justice, what are kingdoms but great robberies?" -St. Augustine, City of God, c. 380.

What are the marginal public benefits of a dollar spent on GEO holding a guy who wants to pick tomatos, and his children, compared to a buck spent on investigating General Dynamics Information Technology for anti-trust violations connected to their gobbling up of firms that handle databases for Homeland Security, including apparently one that lost track of migrant children?   

Is the giant sucking sound jobs shipped to China, or funds whisked into the offshore accounts of those turned into billionaires from padded federal contracts, and who fight on various fronts to insure our taxes will never be available for responsibly, not corruptly, designed and built high speed trains, Creative Commons licensing training (and the elimination of the Bayh Act), or public health investments?  

Do we really want to investigate fewer than 1,200 cases of tax evasion annually, down from 1,948 in 2010  and leave tens of billions on the table while spending scarce resources capturing and locking up hundreds of thousands of people who might actually assist the U.S economy and pay more taxes than the jailers who are exploiting them? A Department of Treasury report notes "a significant decrease in the Collection function’s staffing in recent years.  The number of revenue officers declined over 40 percent, from 4,068 at the end of FY 2010 to 2,425 as of June 2016."
The myth is that the one percent somehow earned their wealth through the miracle of capitalism.  Sure, a few did.  But most wealth is from intergenerational transfers and much of this is from assests or commodities acquired from the state and federal government.  The largest spender in the world is the U.S. federal government, and it spent about $1 trillion, including taxes from noncitizens, on some of the world's most toxic commodities, from cluster bombs to biometric databases to prisons.  The folks hauling in these billions run firms that buy or merge with their competition, and spend millions on making nice with the people who control the purse strings to not ask questions or to install those who they can insure will not.

Shouldn't we be taking care of the real vulnerabilities to the rule of law, i.e., the corruption of those managing our treasury and our jails, i.e., our resources and liberty, before worrying about the lineage of new arrivals, a population less likely to be convicted of any crimes if they cross borders instead of being born here?

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." - Preamble, U.S. Constitution

Our wager as citizens is on a people defined solely by our desire to establish justice and further other principles, with no other criteria as to collective origins or fantasies thereof.  To the extent that ideas about ancestry and especially nationality favored by the identity politicians of the right and left crowd out these founding aspirations, they pose the real threats to the rule of law and hence the posterity of the founders.  Those arriving for the purpose of joining the  people of the U.S. Constitution are the posterity perfecting the rule of law and should be welcomed.  Any other decision-rules for admission or expulsion, especially hereditary, are distractions that are expensive and even lethal.

P.S. How this happened....
It's been just over ten years since June, 2009, when Mark Lyttle asked for help in obtaining what he said was $32 owed him by the Correction Corporation of America (CCA).  Mark had been working in the kitchen and had a midnight shift buffing floors at the Stewart Detention Facility in Lumpkin, Georgia.  CCA was paying him one dollar a day.

Mark, a U.S. citizen, in late 2008 was employed by a for-profit immigration jail.  The only difference between him and the janitor at the hospital down the road is that Mark was in the custody of his employer and was waiting for an immigration hearing. It's illegal for ICE to detain and deport U.S. citizens.  I was writing about that piece of his saga, and what it meant that William Cassidy, a federal attorney and hearing officer, a.k.a., immigration judge, could ship Mark to Mexico, lie about it, and still not be fired.    

I helped Mark find attorneys at the ACLU.  They filed a lawsuit for the detention and deportation.  No one followed up on the $32 CCA owed him.   

It bugged me.  I couldn't figure out why CCA thought they could pay him, or anyone who had not been convicted of a crime, one dollar per day, and not at least minimum wage.  (The 13th Amendment exampts from the prohibition against forced labor work performed as a condition of punishment.)

Thanks to the acumen of Andrew Free, who also handled the FOIA litigation crucial for obtaining documents for my research unwinding this, the class action lawsuits against the private prison firms for work programs along the lines of what Mark described to me rolled out nationwide. 

I am now also indebted to attorney Nicolette Glazer, who has stepped in to help out with the FOIA litigation, including the winding down of the prison contract litigation Andrew filed in 2014, which is still ongoing.  

Here's a link to a law review note updating the litigation last year.   

Friday, July 12, 2019

Age Assessments for Unaccompanied Children: Alternative Facts, Policies, and Logic

Click image to enlarge 

Interim Report on Age Assessment Policy Violations by the U.S. Department of Health and Human Services, Office of Refugee and Resettlement

Jackie Stevens 
Professor, Political Science Department, Founding Director, Deportation Research Clinic, Buffett Institute for Global Affairs, Northwestern University
Research assistance from Political Science Department Farrell Fellow Daisy Grace Conant and Posner Fellow Khadeejah Milhan

This is a preliminary report on findings about ORR Age Assessments.  It is being released in conjunction with producer Nadia Reiman's "This American Life" July 12 broadcast as an interim alert to the public, including those in custody, and attorneys, as we await the full production from ORR and ICE.

U.S. officials are unlawfully moving asylum-seeking children from costly shelters into relatively cheaper Immigration and Customs Enforcement jails.  The Deportation Research Clinic has reviewed hundreds of age assessment cases since January 1, 2016.  Among the 205 formal Memorandums of Age Determination coded to date we found ORR officials blatantly misstating the results of medical assessments and official policies.

Along with keeping adults out of facilities meant for minors, officials from the Office of Refugee and Resettlement are placing unaccompanied children into ICE jails.  We found ORR collaborating with Immigration and Customs Enforcement officials, violating the policies for placement, and also writing bogus reports that could hurt children's asylum claims.
Journalists previously have highlighted ORR officials turning children over to ICE if, per ORR policy, a dentist says there is at least a 75% likelihood that their wisdom teeth, roots and all, look like those of someone 18 years or older.  If you're reading this a second time and furrowing your brow, you're not alone: the expert consensus is that dental radiographs cannot be used to reliably distinguish the teeth of a 17 year-old from those of a 23 year-old, much less an 18 year-old.  And if the teeth are those of someone from the vast majority of the world's population that has no reference sample for a comparison, forget about it.

U.S. policy says the radiograph reports cannot be used without other evidence of adult status, such as a birth certificate.  In at least three separate federal lawsuits since 2016, judges have found ORR violating this policy.  

It's bad enough that the government is using tooth X-rays for immigrant age assessments.  But we found something even more alarming and not previously reported: the government ordering children moved to ICE custody even though they had submitted their own bona fide birth certificates and the dental radiographs affirmed their claims or were never referenced.

The L.A. Times article recently lamented cases in which people had their ages reassessed because they passsed the 75% threshold. Our cases show ages being reassessed upward even when the radiograph reports show probabilities below this threshold, including indicating someone is not likely to be an adult.
Think Magic Eight Ball.  The government asks the Magic Radiograph, "Is Taj 18 years or older?"  The Magic Radiograph says, "Most likely."   The shelter worker gives Taj the news and tells him ICE is on the way to put him into jail.  Taj says, "What about my Bangladeshi birth certificate?"  "Tough luck," the case worker might tell him.  

But what about when the Magic Radiograph answers the question of whether Taj is at least 18 with "Cannot Predict Now," or even "Very Doubtful"?  That's what happened in about a quarter of the cases we reviewed that used the dental forensic reports.

Taj should have lucked out.  But in the world of alternative facts, he still loses.  The government is taking these results and emphasizing that according to the Magic Radiograph, there's some chance Taj could be 18 years or older.  And then, based only on adulthood simply being possible, the government is disregarding Taj's bona fide documents, and his narrative, and that of his parents, and still telling him ICE is on the way to put him into jail and hold him there until his final hearing. 

Interim Key findings:

(1)  ORR officials are misrepresenting the facts and policies in their age assessment memorandums.  Instead of catching fraud, ORR is perpetrating it.

The ORR shelters regularly encounter people whose narratives, statements on file with the government, official documents, and biometrics, contain discrepancies. There is nothing inherently unlawful or even surprising about this. Children often travel using false documents attesting adulthood so they can leave their country of origin, especially if their journeys require air travel from, say, Bangladesh, India, or Camaroon.  The registries of many developing countries are known to contain errors and missing data.   

Minors benefit from laws allowing them more lenient supervision and release while awaiting hearings. Not surprisingly, some adult noncitizens have entered the United States with their own altered birth certificates or a bona fide birth certificate belonging to a younger friend or relative and used these to enter the juvenile shelter system.   Case managers in shelters are catching some of those, mostly from pressuring people into confessions. 

Case managers also review cases remotely, including employees of a military firm with ORR contract.  They conduct reviews of migrant children digitally and from their homes.  One employee claimed she had elucidated an ORR client was lying after she found a Facebook page that, if it really did belong to the person in their custody, proved the person had graduated from college.  Again, if, it didn't belong to another, say, Juan Mario Gomez from El Salvador.) 

ORR's Age Assessment policy states:
Each agency acknowledges the challenges in determining the age of individuals in custody. These challenges include, but are not limited to: 
•Unavailable  documentation;
• Contradictory or fraudulent identity documentation and/or statements
• Physical appearance of the individual; and
• Diminished capacity of the individual.
The TVPRA requires the age determination procedures, at a minimum, to take into account multiple forms of evidence. Accordingly, under these procedures, each case must be evaluated carefully based on the totality of all available evidence, including the statement of the individual in question.
ORR blatantly disregards these requirements, as documented below.

(2) The payments for these investigations are coming out of ORR's health care budget for these children.
The payments to the dentists performing the X-rays and analysis are coming out of ORR's health care budget for the shelters.  This would be like the Federal Bureau of Investigation paying for forensic hair analyis from our Medicare budget.  It's exactly the sort of shuffling of funds from child care to law enforcement that makes it difficult for the Democrats to support Trump's plans to increase even ORR funding without extensive oversight by the House.  (ORR has funds to pay hundreds of thousands of dollars for junk science reports, but not toothpaste for kids in CBP custody?)  UPDATE: 3/17/2020 - The documents released indicated offsite age assessments were being performed by four dentists, with David Senn and Peter Arvanitis conducting the vast majority.  Arvanitis runs a family dentistry practice in Arizona, was not listed as a member of the American Board of Forensic Ondontology, and did not respond to inquiries about his qualifications for conducting such assessments.
(3) The age assessments rely heavily on data and narratives from the consular officials of the children's country of origin.
The cases are frequently asylum claims.  Relying on the consular officer's disavowal of claims made by those seeking asylum is like discrediting a wife's claim of abuse because an accused husband claims the narrative is not plausible.  Further, the vast majority of the age assessments are for people from Guatemala or Honduras, both  notorious for national registries with inaccuracies, missing information, and even, in the case of Honduras, criminal fraud.  (Widespread problems with the registries and certificates in Latin American countries are described by Emory University Law School Professor Polly Price in Chapter 1 of Citizenship In Question: Evidentiary Birthright and Statelessness.)

(4)  When attorneys file habeas challenges to the relocation of a client to ICE custody based on the dental X-rays, judges convey the common sense indignation one would expect from any well-educated professional.
The judges' orders note that those charged with enforcing the Trafficking Victims Protection Reauthorization Act seem unfamiliar with its most basic instructions.  The orders suggest that the judges are encountering government officials who inhabit a cave of illiterate simpletons.

For instance, in an opinion of October 26, 2018, Judge Diane Humetewa writes:
There is no apparent plausible construction of the TVPRA, or the ORR Guide, under which an ORR official's nonspecific, unsubstantiated speculation of what they perceive to be adult behavior suffices as 'evidence' that may be considered and relied upon in making an age determination.  Indeed, ORR does not include appearance or behavior as criteria for evaluating whether an individual is an adult or juvenile, but instead lists those factors as a challenge to the age determination process.
The judge ridicules not only reliance on the case managers' subjective opinions but also the accuracy of  information in ICE databases.  She writes: "DHS was aware of this conflicting information in Bitmap at the time it designated Petitioner as an UAC" and so inferred "these records appear to be questionable at best."

(5)  Military and security firms are using massive cross-country databases with information that is not only bogus and harmful, in this case to the children from whom it was elicited without consent, but also prone to hacking and other illicit uses.

General Dynamics Information Technology handles juvenile case management services for ORR.  Last year GD acquired the firm that contracts with Homeland Security to operate the biometric database the judge above was rightly questioning.

Everyone knows that the Biometric Identification Transnational Migration Alert Program database cannot distinguish fraudulent passports children use to leave their countries from their own from bona fide documents they present on arriving at the U.S. border.) 

Here is a link to a GDIT juvenile case management job posting, courtesy of The Daily Beast.    (When you read about the difficulty in reuniting children with their parents, blame General Dynamics.) 

General Dynamics is the world's fifth largest military contractor and the country's third largest federal contractor.  Vertical integration is the name of its gruesome game.  Just like Purdue Pharma makes money first from addicting people to opioids and then from selling drugs for overdoses, General Dynamics profits first from selling cluster bomb missiles, and then the federal services for the children made refugees from war.   That's why countries and university faculties are calling for ending contracts with GD.

The MADs - Overview of Results to Date

The Memorandum of Age Determination is the key document ORR uses when coordinating with ICE to remove kids from a juvenile shelter, at a cost of about $750/day, and put them in ICE jail, about $125/day, while awaiting an immigration hearing.

The triggers for the reviews typically are omitted or stated vaguely.  105 MADs state the age review was initiated because it "became apparent" during an intake interview that the person was likely an adult, with no explanation of what exactly was "apparent" that prompted the case worker's belief the client was an adult. 

43 of the reviews were initiated due to discrepant documents, 21 after people admit they lied, and the balance are initiated based on "behavior" or "physical appearance."

Email shows the shelter case workers and ORR often are taking cues for age assessments from ICE officials, even though ORR is legally the guardian for unaccompanied children.  The case managers include people who staff the nonprofit shelters as well as folks who research cases from their homes and work for General Dynamics Information Technology.

The statements by these contract workers in records systems and emails, including those that are not made lawfully, may be used to move noncitizens out of shelters and also to impugn their credibility in asylum cases.  Conflicts of interest are a serious concern.  If the shelter is under scrutiny for self-dealing and overpay, as is Southwest Key, a major contributor to these MADs -- responsible for all but nine of the 205 MADs we reviewed -- could they be selling out those over whom they have legal guardianship by cheerfully providing assessments the contracting agency wants to hear?  If they cooperate, might this make it less likely ORR will suspend SWK from federal contracts, as the record shows should happen?

A typical MAD is between one and two pages and follows a template that narrates facts in the person's file and a list of the transfer documents, including a TB report.  The MAD concludes with an assessment the person is 18 years or older or just a statement that per policy ICE should pick them up.  About 80% include no medical age assessments. 

We are still tabulating, but so far found nine cases in which the dental radiographs put the chances of someone being an adult below 75%, sometimes well below.  ORR official memorandums misstated the outcomes or policy, or both.  Just to be clear, these cases have weak or no other evidence to impute adulthood.

We've extracted a few examples.  Here's one from November 3, 2018, for a teenager who possesses a birth certificate that shows his date of birth is 2001, and a reference to a Consulate report on the birth certificate with no claim the Consulate questioned its validity.  There is also a dental forensics report.  It estimates a 51.4% probability that the person claiming to be 17 is 18 years or older, the equivalent of the Magic Eightball being clueless.   (The Memo does not report the country of origin but other email and notes suggest the person is from Bangladesh.)

There is exactly one observation inconsistent with this person being a minor: "On November 5, 2018, ORR received information that Mr. [REDACTED] entered the US with a date of birth of [REDACTED] 1998, making him 20 years old."  There is no reference to the nature of the information, its source, or how information received on November 5, 2018 could be included in a Memo of Age Redeterminated dated two days earlier.

Compare the above memorandum with one typical of those referencing actual evidence that would hold up in court.  Information included in this one and not in the one above is: an admission of lying, specific evidence of an altered birth certificate, and a summary of a conversation with the Guatemalan consulate.

Another memorandum, also from early November, 2018, but authored by a different ORR official covering the Chicago region, where Yong was held, follows a similar trajectory as the first bogus one -- crediting unsourced information from Bitmap and ignoring bona fide documents and a radiograph that says there is only a 30% likelihood that the wisdom teeth belong to someone who is 18 years or older.

Here's a third example of a MAD gone wrong, by a third official, but in the same time frame and also for a teenage boy from Bangladesh.  The memorandum indicates the Bangladesh birth certificate is authenticated and that the forensic results are below the ORR threshold.  Nonetheless, the memorandum concludes, "In accordance with ORR age redetermination policy and procures, MR. [REDACTED] dental forensics results are 68.45 and ORR requests that FOJC [Field Office Juvenile Coordinator] coordinates and ensure[s] the immediate transfer of custody of this individual to an adult DRO facility." 

The media have made a big deal about the dental radiographs.  Not previously reported is that fewer than 20% of the MADs actually reference any forensic report.  For an unknown number of cases, radiographs appear to have been taken and assessed but not reported.  After we receive all the documents owed us from the FOIA request, we should be able to assess the discrepancies between references to dental X-rays in the shelter records and their absence from the MADs.
The MADs contain numerous other problems unrelated to radiographs.  In one case without a radiograph, the ORR in late 2018 noted it had evidence that a teenager from Guatemala was born in 2001, not 2000, as he claimed.  ORR's memo stated he was 20 years old.  The research assistant who coded this MAD conveyed to me her concern that people in ORR cannot add.

I told her my worry: under the impression no one would ever look at these, officials are filling in the blanks, maybe even copying and pasting, and then asserting whatever is necessary for the desired bottom line: "Please refer this case to DHS ICE Juvenile Coordinator to arrange for transfer to ICE adult custody."

In another case with a 2016 MAD, the U.S. government stated that someone was using travel documents with a 1999 date of birth, making the individual 17 years old.  However, a shelter worker claimed the individual stated he was born in 1997.  The government in this case relied on the older age supposedly stated by the teenager and ignored its documents.

 Cherry picking the oldests age based on the documents available is a pattern throughout the MADs.  In November, 2018 an ORR official in Washington, D.C. writing a report requesting an ICE pick-up from a Phoenix children's shelter writes: "Dental forensic report result indicate adult age over 18: Avg. Mean Age 17.02."  
Among the 205 memorandums going back to January 1, 2016 that we have coded to date, just 38 include forensic results.  Among these, 22 rely on these exclusively to claim the person is 18 years older.  And, about one of out four, are using the age ranges to claim people are adults, even though the probability is below the legal threshold or even states the person is unlikely to be an adult.  

One MAD indicates the radiograph report indicated just a 28% probability that the individual is an adult, meaning a 72% probability the dental radiographs were from a juvenile.  A prior communication on this same case explains the surprising outcome: "[Because] the possible age range includes having reached the age of majority, it is our determination that the original determination that they are adults should stand" (emphasis added).  This suggests the official disregarding not only ORR policy but also the math on which it is based. 

Most dental radiograph from ORR shelters are likely to yield an age range that could include 18 years or much older.  This is because the dental radiograph ranges used for age determinations include two standard deviations above and below the mean.  Indeed, because the dental changes used for tracking wisdom teeth max out in our teens or early twenties -- we're not rodents -- radiograph analyses cannot distinguish someone who is 21 from someone who is 50.  In other words, more than 90% of the population falls within the two deviations of the 17.2 mean age associated with this radiograph. 

Here's the ORR policy on dental radiographs:
If an individual’s estimated probability of being 18 or older is 75 percent or greater according to a medical age assessment, and this evidence has been considered in conjunction with the totality of the evidence, ORR may refer the individual to DHS. The 75 percent probability threshold applies to all medical methods and approaches identified by the medical community as appropriate methods for assessing age.
Clearly ORR is ignoring this threshold. 

We also noted MADs leaving out information ORR requires to be included, especially the narratives of those in custody and their parents, as well as close coordination with DHS, especially for the individuals from Bangladesh.  An ORR official notes that "two dental records that indicate the UAC are minors."   In an earlier email the ORR official writes that the "Embassy said that the mother called and said when she gave birth and she should know since she is the one who birthed him."  This information does not appear in any of the MADs for the teenagers from Bangladesh, in violation of ORR policy.  
More generally, shelter workers claimed individuals confessed to being adults in about half the cases, but in the balance, the clients insisted they were indeed children.

Again, we are still in litigation.  The next status hearing is in late July and we will be asking the judge to order the government to release the balance of responsive documents, including the memorandums currently withheld in violation of the FOIA.

One important question is about the seeming discrepancy between the references to ordering dental forensics -- well over a hundred -- and the 38 memorandums of 205 referencing them.  Is the number referenced low because they were only ordered for these 38 cases, and when we receive more MADs they numbers will change significantly?  Or because an underling decided her boss might not want to see it? 

In an email of December 29, 2016, under the subject heading "re: Issue of Age," an intrepid ORR employee writes, "I'm happy to share the dental if you want it, I didn't send it in yet since it is below 75%." 

While ORR regularly uses the highest age range for kicking children out of ORR, the government also has been known to claim it has a very different policy, one requiring it use the lowest age.  "This American Life" producer Nadia Reiman encountered just such a case.  A Laotian woman arriving at O'Hare airport with a fiance visa was put into a juvenile shelter and held there despite a bona fide passport proving she was 19.  The rationale?  "[P]er ERO's standard operating procedures of age determination... DHS will base her age on the lowest age range from the 9/18/17 report (Dr. Senn's) at 15.35 age and minor's new DOB will be adjusted to September 1, 2002 for their records." 

With the exception of Yong's case, I have not seen a single report in which either ICE or ORR relied on the lowest age range of a dental forensic report.  And of course, if this policy were in place, then the cases that include age ranges under 18 -- the vast majority -- would not be moved to ICE custody and we've seen cases above showing that is happening.  For instance, the report of November, 2018 indicating a mean age of 17.02 states the lowest age for the person is 13.78 years. Yet the request is for immediate removal to ICE custody.

Finally, the stakes for the age assessment reports are not just custody while one waits for an asylum hearing.  A May, 2019 memorandum makes the MADs relevant to the actual asylum review as well:
Documentary evidence establishing the applicant's age and identity will be especially important if the applicant appears to be over the age of 18 at the time of filing, or if there are questions about the applicant's identity. As the party invoking users' jurisdiction, the individual filing for asylum bears the burden to establish that he or she met the UAC definition, which includes the applicant's burden to establish his or her age, and that the applicant was unaccompanied, at the time of first filing the asylum application." 
The USCIS memo misstates the Trafficking Victims Protection Reauthorization Act and ORR policy.  ORR states that challenges to accurate assessment of someone's age include "unavailable documentation" and "physical appearance."  In other words, officers need to make sure that just because someone is missing a birth certificate and may appear 18 years of age, the officials do not assume the person claiming to be a juvenile is lying.

To be continued!  Thanks to Nadia Reiman for her great reporting on Yong Xiong, and Daisy Conant and Khadeejah Milhan for their research assistance. 

Monday, March 25, 2019

New FOIA Release - Butler County ICE Detainees Paid in Coffee Packets, ICE Punishes Hunger Strikers in Tacoma

Butler County Jail, Ohio, Cleaned for Coffee Packets, courtesy of TNEMEC
Attorneys have been suing private prisons for their exploitation of people in custody under immigration laws, a phenomenon that has been receiving increasing coverage by the mainstream media.  But county facilities also are violating labor laws.  This post discusses highlights of the labor situation in the Butler County Jail.

A document released last week shows that ICE has been aware that Butler County has been requiring people to work without compensation since at least 2014. Here's the text from an email a reporter sent to public affairs official Gillian Christensen, who copied and pasted it in her own email to ICE custody officials Tae Johnson, Kevin Landy, and Andrew Strait-Lorenzen:
Just got call from Sheriff Jones from Butler County Ohio.  So, he said that none of the immigrant detainees work on chain gangs, they don't leave the four walls.  However, he did say that his immigrant detainees work jobs inside the jail.  He houses about 300 immigrants on any given day and typically about 50 are working jobs.  I asked him whether these jobs are paid.  he said no.  "it's just part of what I require".  They do all the work on cleaning, upkeep of the section of the jail where they are housed.  He estimated it saves him hundreds of thousands of dollars per year not having to hire staff to handle janitorial and such in that section of the jail.  He said he is not a member of the federal work progrm so he doesn't get a dollar a day reimbursement because his detainees are housed there for too short a period and the federal paper work would not be worth the headache.  (FOIA Supp. Release I, p. 194)
In a New York Times article published shortly after this email, Ian Urbina wrote:
Sheriff Richard K. Jones of Butler County, Ohio, said his county saved at least $200,000 to $300,000 a year by relying on about 40 detainees each month for janitorial work. “All I know is it’s a lot of money saved,” he said.
Urbina's report in the Times is terrific, but omits legally important information: the jail is not paying folks a penny for their work and not participating in the reimbursement program.

The private prison firms GEO Corp. and CoreCivic, as well as ICE, have defended paying people in custody under immigration laws $1/day or more based on a section of the Performance Based National Detention Standards and a 1950 statute authorizing payment of allowances for work performed by those held under immigration laws at a rate to be set by Congress from time to time in the appropriations act.  (Here is law review article criticizing these legal claims and explaining the program's history.)

No one in ICE has provided any legal rationale for incentivizing work by those in custody under immigration laws by more food, visitation, or threats of force, overt or implicit.

To find out if the 2014 email and reporting on Butler County triggered any changes, I spoke today with Sheriff Richard Jones and Chief Anthony Dwyer.  

Jones claimed to have no recollection of any report in the New York Times about his work program or any conversation with ICE about this, either.  He also claimed to have much less knowledge of the program more generally than he had in 2014, suggesting that the longer he has run the jail, the less familiar he has become with how it operates.  When I asked if the facility participated in the formal work program compensating people at least $1/day he said, "I have no idea.  I wish i could tell you. I don't know if we participate." Sheriff Jones said someone with more working knowledge would call me back.

Chief Dwyer confirmed that the jail, found out of compliance on dozens of ICE standards, still was not participating in the formal "Voluntary Work Program."  He explained that each unit of about 100 people has two porters.  The porters personally mop and maintain the living quarters as well as elicit work by others, such as cleaning the showers, painting, and general upkeep.  The porters, selected monthly, receive 20 coffee packages/ week, "the same as sentenced inmates" in the part of the jail used for prisoners convicted of crimes.

"ICE runs a program where they require a stipend," he explained.  "We operate under an IGSA standard for the facility" that does not require this.  The compensation, in addition to the coffee, includes increased visiting options and also exemptions from facility lockdowns.  "Being a porter is a privilege," he explained.

I suggested to Chief Dwyer that even if the labor of the porters and those working under the porters truly is not at gunpoint,  it still might not be legal.  McDonalds cannot defend itself, for instance, by claiming that people without legal authorization to work thought it fine, even a privilege, to be paid in Big Macs.  

Dwyer referenced a text message someone had sent him in preparation for our interview with a screen shot of the IGSA requiring only that the compensation be identical to those in criminal custody.  He also rejected my McDonalds analogy, stating it was inappropriate for a "correctional environment."  

And yet, as I pointed out, and as is clear in the contract Chief Wyden personally signed, people in custody under immigration laws are not there for purposes of "correction."  As the contract states
All persons in the custody of BICE will be referred to as an "Administrative Detainee".  This term recognizes that BICE detainees are not charged with criminal violations and are only held in custody to assure their presence throughout the administrative hearing process...
Sheriff Jones had referred to "immigration prisoners" and Chief Wyden said any emphasis on the distinction between ICE and criminal detainees was "an invalid point." He stated that the IGSA with ICE stated that as long as the porters held for ICE are "compensated like anybody else," i.e,., the porters convicted of crimes, then the jail had no legal worries.  I asked if he could read the portion of the text that stated this.  He stated he had seen a picture of this section of the contract but could not read it to me.  He reiterated that the "IGSA says we should compensate for whatever you do the same as you do for anyone else you in the facility."  (Of course as soon as we hung up I submitted a request for this under the Freedom of Information Act.)

MORE - Hunger Strike Docs for Tacoma, Woman Choked in Delany Hall, NJ (p. 280)
The document here and thousands of pages more are a result of litigation under the Freedom of Information Act.  Andrew Free has been representing me in this litigation for several years, with assistance from local counsel in Chicago Andy Szot; in recent months, attorney Nicolette Glazer has taken over.  Their work makes possible my research, publications, and especially important, a number of student training opportunities.

Monday, February 4, 2019

End Campus-wide E-Verify at Northwestern University, Letter to the Editor and Petition

Below is the Letter to the Editor of the Daily Northwestern from representatives of undergraduate and graduate student groups and faculty at Northwestern University.  It includes a link to a spreadsheet US Citizenship and Immigration Services produced listing the institutions of higher education that signed MOUs obligating them to use E-Verify for all employees, including student research assistants, and not just those working on a federal grant or contract.  (Some institutions are obligated to do so because of state laws.)

Please consider signing our petition
Daily Northwestern - NU leaders endanger students, employees through E-verify

Since 2009, Northwestern faculty, staff and students have voiced concerns about NU implementing a discretionary program that turns over private data from students, staff and faculty to the U.S. Department of Homeland Security through a program called E-Verify. As the timeline on this matter shows, in the last decade, various NU legal and administrative officials have responded to our concerns by misrepresenting the necessity of E-Verify for those not directly employed by government contracts. We now have proof as to the shocking scope of individuals affected at NU and the false claims shared with us about the University’s need to participate.
In response to litigation under the Freedom of Information Act, we received the Memorandums of Understanding NU signed to initiate and renew its participation in E-Verify, which then-General Counsel Philip Harris refused to release last spring. Through this litigation, we received national data revealing that NU is the only research university in Illinois to participate campus-wide and that its participation is an extreme outlier: fewer than 1 percent of institutions of higher education have in fact signed these MOUs obligating campus-wide participation.
The MOUs with U.S. Citizenship and Immigration Services prove that NU is under no legal obligation to force the vast majority of its community to provide their personal data to a Homeland Security database that, according to the ACLU, poses threats to our privacy and that violates the national criteria proposed for campuses seeking to welcome noncitizens.
In sharp contrast with hundreds of research universities in states not obligated to participate in E-Verify, NU forced over 76,000 students, staff and faculty to submit personal information to databases that share their information with third parties. Anyone employed by NU since 2010 is in this database. Our analysis of the USCIS Excel sheet itemizing NU’s submissions of our data reveals that over 190 individuals were specifically targeted by NU for Homeland Security as attempting to work without authorization approved by E-Verify. The final determinations are not yet clear; we expect to receive additional data from this litigation shortly.
As the MOUs clearly state, NU can after 30 days notice stop reporting data on all new hires who are not directly working under federal government contract. At that point, everyone who is working on a federal contract will have been already included in the E-Verify database.
The only new hires whose data would need to be submitted would be those working directly on a federal contract, which is exactly the situation of our peer institutions. If the University of Chicago (and over 99 percent of other institutions of higher education) can target only new hires working on federal contracts for E-Verify, then there is no logistical impediment to prevent NU from doing this as well.
We have been sharing our concerns with President Morton Schapiro and Provost Jonathan Holloway since last spring. On Jan. 8, 2019 we wrote a letter to them stating that, in light of NU’s stated intention to protect the educational opportunities of its noncitizen community and this new information proving the inaccuracy of claims about NU’s obligations to USCIS, we wanted them to reconsider their earlier position. We requested that NU immediately send the 30-day notice of an intent to withdraw from campus-wide participation in E-Verify. President Schapiro and Provost Holloway did not reply, though they regularly opine to The Daily their support of DACA students, a population NU’s own attorney has agreed is at special risk from E-Verify.
We write now to ask others to join us in sharing with Schapiro and Holloway your concerns by signing this petition.
Students Organizing for Labor Rights (SOLR)
Seri Lee, Weinberg 2020
Allyson Bondy, Weinberg 2020
Erykah Nava, Weinberg 2020
Sharmain Siddiqui, Weinberg 2020
Natalie Vega, Weinberg 2019
Jessica Wang, Weinberg 2019

Northwestern University Graduate Workers,
Jorge Coronado, Professor of Spanish and Portuguese
President, NU-AAUP
Alessandra Visconti, Assistant Professor of Instruction, Department of French and Italian
Vice President, NU-AAUP
Jacqueline Stevens, Professor of Political Science
Secretary, NU-AAUP

Added on 2/7/2019: For links to the General Dynamics piece of the NU E-Verify story, please see this 2016 Letter to the Editor
#End read more