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?)
(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

Saturday, January 26, 2019

BITMAP Targetting Alleged "Adults" and Asylum-Seeking Children In U.S. Custody, not Terrorists

November 14, 2018 Email on BITMAP, X-Rays, and Age Reassessment, click to enlarge 
BITMAP is among the numerous global, mammoth data-collection enterprises that bring Orwell's nightmare to life.  It's supposed to "identify criminal persons, wanted subjects (including international  fugitives), and known or suspected terrorists" (House Report, p. 2).  But an email I obtained yesterday from an official in the Department of Health and Human Services through FOIA litigation reveals it is being used to target people who secretly may be ... adults.  

The email states: 
As you all know, we have a number of Bangladeshi nationals in our programs, who appear to be adults....If you have dental forensics showing 75% or greater probability that the individual is an adult, and you receive Bitmap information corroborating this, then the case meets ORR policy to make an age redetermination. -Thomas Curry, PhD, LPC-S, Federal Field Specialist Supervisor, South Texas Region, U.S. Department of Health and Human Services, Administration for Children and Families, Office of Refugee Resettlement
This is exactly the sort of mission creep against which civil libertarians warned.  Any positive hits also are a likely source for the Trump administration claims that they've snared terrorists crossing into the U.S. from Central America, when what they meant was that a database that was sold as targetting terrorists was used to move asylum-seekers from a DHHS facility into ICE custody prior to their immigration court hearings.

Of course Trumpists will be tickled that a lying Bangladeshi adult will be removed from DHHS custody and placed into the harsher (and cheaper) ICE facilities.  Except that the data on which such a move is based is just guesswork dressed up as science.  The dental forensics are junk science and the databases are no more reliable.  

Of course Trumpists will be tickled that anyone who isn't a White national will be removed from DHHS custody and placed into the harsher (and cheaper) ICE facilities.  So let's argue about that.  

And now since we're on that topic, I just gotta say, how about offering to scrap the entire ICE budget EXCEPT for building the damn wall?  If the wall is so ineffective, then what is so "immoral" about it?  

Dream legislation for AOC to introduce: Let Trump build his beautiful concrete wall on the border as a giant monument to Byzantium.  I'll give him the shovel.  Meanwhile, back in the 21st century, asylum-seekers who show up at a port of entrance must be admitted and released on their own recognizance; no more funding for ICE's long-stay detention facilities; no more arrests at court-houses of people who may have overstayed their visas; no more bogus marriage fraud threats of petitioners; no more Kafkaesque interrogations of the birth documents of brown-skinned people; and no more BITMAP.  The U.S. fully implements the 1964 Civil Rights Act and ends discrimination based on birth. Anyone inside the United States is left alone unless they break a criminal law unrelated to their hereditary status.  

So while Trump and his gang of idiots are building their wall -- and fighting off pissed-off ranchers, etc. -- the rest of us focus on implementing policies that defeat global apartheid.  As my colleague Daniel Morales states so eloquently,
 [W]hen the undocumented break the law and enter the U.S., they not only seize the privileges of rich-world life that the U.S. chose to deny them, they also send a clear message that the American immigration system and the broader political order of which it is a part, do not meet their needs. -Daniel Morales, "Undocumented Migrants as New (and Peaceful) American Revolutionaries"  Duke Journal of Constitutional Law and Public Policy (2016)
For more on the desirability of open borders, check out a new collection of essays just published by University of Georgia Press, and including a contribution from Joseph Nevins. 

Meanwhile, we need to remain vigilant about BITMAP, first passed during the Obama administration in 2011.  A bill to make it permanent passed the House in December but did not pass in the Senate, though an amended version was reported out favorably by a Senate Committee on September 5, 2018.  The ACLU, Immigrant Legal Resource Center, National Immigration Law Center, and National Immigration Project of the National Lawyers Guild issued an excellent explanation of its problems.

Within hours of the government opening for business, I received hundreds of pages of documents revealing how age reassessments are being performed by contractors working for the Department of Health and Human Services.  I requested these as part of a research project with the Pangea Legal Services, committed to assisting free movement, and hope to be releasing a report on our findings shortly.

Wednesday, December 12, 2018

ICE Tricks Sheriffs into Kidnapping U.S. Citizens, Bogus Immunity Claims

Source of image 

Last week a U.S. citizen born in Philadelphia filed a lawsuit after a Florida sheriff took him into custody under immigration laws.  (No law enforcement entity in the country has jurisdication over U.S. citizens under immigration laws, a point that ICE itself has repeatedly avowed.)
The sheriff is claiming that the agreement he has with Immigration and Customs Enforcement -- to earn a $50 bounty for each person turned over to ICE -- immunizes him from any litigation.  Instead, though, the payments might be grounds for charging the sheriff with criminal kidnapping.

The ICE announcement of the new partnerships acknowledges past litigation had made counties reluctant to hold people on immigration detainers, insofar as courts have found that these do not alone provide "probable cause" for an arrest.

ICE explains that the new agreement should assuage county concerns on this score:
Recognizing these challenges, the National Sheriffs’ Association (NSA) and the Major County Sheriffs of America (MCSA) worked with ICE to develop a new process to clarify that aliens held by these jurisdictions are held under the color of federal authority, thereby affording local law enforcement liability protection from potential litigation as a result of faithfully executing their public safety duties.
 The ACLU and other civil rights organizations vigorously dispute this. 

Journalists covering this are understandably confused.  

Here's the quick version of the big picture:

1)  Congress in 1996 voted to amend the law controlling immigration detainers.  The amendment was Sec. 133 in the 1996 bill, and it was to section 237 in the previous bill, and so called 237 (g).
The text of the 1996 bill is now in the U.S. Code as 8 U.S.C. 1357.    

2)   The dispute is about this language (from the 1996 bill) and promises based on it:  
(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.
3)  The problem for Monroe County and others operating under these agreements are two-fold:
    a)  Nothing in this language exempts anyone in law enforcement from the "probable cause" threshold for taking someone into physical custody.  If the government lacks probable cause, especially if the person is a U.S. citizen, then holding the person in custody is false imprisonment or even kidnapping.  There is no Federal authority for doing this, and thus there is no basis on which a local sheriff would be able to prevail in asserting they were acting on behalf of ICE.  

For the most part, litigation has been civil, though under Obama, the DOJ did successfully criminally prosecute two East Haven police officers.  At some point a prosecutor who believes in the rule of law will prosecute for this, as did prosecutors in the 1850s when they brought charges against U.S. marshals or slave agents who kidnapped people accused of being escaped slaves.

Under Florida law(1)(a)The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage...

ICE is giving the county sheriffs a reward of $50 for holding Mr. Brown after his April 26, 2018 court hearing against his will and without lawful authority.  Discovery presumably would prove that the cash incentives were implemented because ICE otherwise was having a problem with enlisting the cooperation of the sheriffs.

  b)  The claims of ICE officials asserting the agreements indemnify the sheriffs are not legally enforceable.  Just because someone with a government title, say, "President of the United States," puts something on a web site, or in an agreement with a local county, that does not make that agreement binding on the federal government. No one in the government can supersede the Fourth Amendment, period.    

4)  The National Sheriff Association and the sheriffs in Florida seem to have indulged in some magical thinking to the contrary.

5)  The reason that ICE is doing this is that it continues to have problems with buy-in to the original 287 (g) program.  A 2018 budget request indicated only 31 counties were participating.  The 2019 budget request says the number has gone up to 60 and that ICE anticipates an additional 23 MOAs, but that's still a miniscule fraction of the 3100 counties nation-wide.  The new BOAs are supposed to change this.

At present ICE lists 78 counties as having signed the MOAs, about 2.5% of all eligible counties, and in areas that represent an even smaller jurisdiction over the U.S. population, because they are largely in areas sparsely populated.  97.5% of U.S. counties are not participating because of a mix of anti-deportation sentiment and litigation risk aversion.  
The American Civil Liberties Union has a terrific FAQ about the "Basic Ordering Agreements" ICE rolled out earlier this year in Florida.  And here's the complaint against Monroe County filed on behalf of Peter Sean Brown, and the story behind it.

The National Immigrant Justice Center, Southern Poverty Law Center, American Immigration Council, the American Immigration Lawyer Association, and the National Immigration Law Center also partnered on a March, 2018 report detailing the case law at odds with ICE's claims that its local partnerships indemnify the counties. 

ICE acknowledges rogue operations in which agents go undercover to trick immigrants into providing location information to assist with the arrests of family members or co-workers.  Here it seems the rogue operation is to trick sheriffs into believing false imprisonment possible without consequences.  

Friday, November 16, 2018

"Coercivic," aka CCA, Sued for Exploiting People Held during Immigration Proceedings in New Mexico

"CoreCivic profits from its operation of Cibola by relying heavily on a captive workforce of civilly detained immigrants, including Plaintiffs, to perform labor necessary to keep Cibola operational and provide the services it is obligated to provide under the terms of its contract with Cibola County, New Mexico." 

This is the first lawsuit against a private facility on behalf of people held under immigration laws using the Fair Labor Standards Act.  It also alleges violations of New Mexico's minimum wage law and its common law prohibiting unjust enrichment.

Please go here for more information, including on how to join the class.

And here for recent Ninth Circuit petition and replies, including 92-page declaration of Plaintiff attorney. (Ninth Circuit recently denied GEO's petition to review federal district court green-lighting of cases against the Tacoma facility.)

The United States of Prisons?

Btw, is the graphic design shop "Coercivic" hired chuckling over how they branded the United States (flag) as a prison?  Or is this seemingly astute parody only accidentally illuminating the control this heinous industry has over the U.S. Congress and local politicians?

Friday, November 9, 2018

GEO Loses Another Round in Effort to Defend Slaving Wages, Ninth Circuit Motions Here

Workers Paid $1/Day at Tacoma Facility, from article pointing out Gates Foundation GEO investments
The Ninth Circuit Appellate Court yesterday denied GEO's petition to appeal Judge Bryan's class certification of the lawsuit charging GEO with violating Washington's minimum wage laws as well as laws against forced labor and unjust enrichment.  Here are some of the key appellate pleadings in the case going forward with discovery against the GEO facility in Tacoma, Washington:

2)  Plaintiff's Answer (September 2018)
3)  Plaintiff Attorney Declaration (September 2018)
4)) Defense Reply (September 2018)

The attorneys for the Plaintiffs are brilliant and are slaying Goliath.   

Here's a short April 2018 op-ed in the New York Times with a quick overview.

For more information on the cases, media coverage, and the law review article explaining the basis for these lawsuits, please go to the Deportation Research Clinic sources page and also the Deportation Research Clinic home page.  

Thursday, November 1, 2018

Can the Commander in Chief Use Military Funds to (Falsely?) Imprison Alleged Noncitizens and Asylum-Seekers?

A tent city set up to hold immigrant children separated from their parents or who crossed the U.S. border on their own is seen in Tornillo, Texas, U.S., in this U.S. Department of Health and Human Services (HHS) image released on Oct. 12, 2018. Photo courtesy HHS/Handout via Reuters

Source: PBS, October 30, 2018

I just listened to Trump's plan for holding noncitizens in what sound like military bases while they wait for their immigration court dates.  He claimed that lack of space is the only reason people now are being released prior to their scheduled court dates and seemed to relish the likelihood that the harsh conditions of confinement will discourage people from exercising their rights to claim asylum (or prove lawful residence or U.S. citizenship).

The idea seems to be that the government can avoid  the expenses of prolonged detention by throwing people into military camps. 

(President Obama, remember when your party controlled both houses of Congress and your DHS turned down the petition to enact regulations for people in custody under immigration laws, claiming the process would be time-consuming and expensive?  Okay for prisons to have to follow regulations but not facilities holding U.S. citizens in ICE custody? And now martial law is okay?)

Here is an article from June discussing the options considered.

The legal authority to do this seems unclear. The photo of one facility was released on October 30. 2018 by the Department of Heath  and Human Services, but the facility was actually being paid for by the Army.

It appears that Air Force and Army also may be queuing up some bids and proposals.  If you're a journalist interested in poking around, go to and look for contracts with the NAICS Code 236220 -- Commercial and Institutional Building Construction.

There are a few that seem plausible.  One that especially caught my attention is one that was posted on October 10 with an October 30 deadline for firms expressing an interest.

This office intends to solicit offers for SABER (Simplified Acquisition of Base Engineer Requirements) execution of multi trade real property maintenance and repair of military facilities at Joint Base San Antonio, Texas.  Delivery Orders will be issued under the general contract to include a broad range of work in a variety of trades, including but not limited to site work, roadway construction and repair, drainage, utilities, electrical (interior and exterior distribution), construction of building facilities, renovation of existing building facilities, structural repairs, roofing, plumbing, HVAC, controls painting, asbestos and lead based paint abatement, demolition, and installation or removal of large equipment such as boilers, chillers, etc.  Estimated contract ceiling amount is $50M.  Up to 8 contracts will be awarded.  Duration of each contract will be 5 years.

 Here's another one, at Lackland AFB.   Not only is this an unusual turnaround time for bids but the archiving time frame also is quite short and the project public description seem inconsistent with the budget and other details.

Does the Air Force or Army have authority to use its appropriations to build structures for locking up noncitizens seeking a review of their asylum or other applications for admission?  What about people who are U.S. citizens or have other legal status and are put into custody under immigration laws nonetheless?  Are the authorizations for these speedy bids proper and in the Appropriations Act?  Is Trump calling the folks in the caravan an "invasion" part of his effort to invoke his authority as Commander of Chief to avoid legal challenges to unauthorized expenditures?

Monday, October 22, 2018

Open Door Policy at Retail Stores Means Mobs, not Jobs, Time to Close the Free Movement Loophole in U.S. Commerce

"Black Friday" Shopping Mob

For years I've been biting my tongue, aware that my views on this subject would be unpopular among my friends in the 21st century, especially anyone in the land of the fee and the home of the sale, a country whose iconic Apple is a beacon calling forth the wired, the bored, the befuddled bad-asses yearning to be Jay-Z.  But commentary over the last few days on the folks in the caravan has finally liberated me to speak my truth and support Laura Ingraham in her campaign to end the ridiculous open door policies of our country's retail outlets.

Today anyone can enter a shopping store.  ANY ONE!  I don't think people understand just how easy it is, and how many people are entering these stores.  The media elite don't want you to know the exact numbers but it's in the billions.  In fact, each year hundreds of millions, okay, gazillions, go in and out of stores.  They buy things, they sell things, often if they do not really need them.  (Sometimes they lie and will say that they need something but they don't; they call it "retail therapy," but obviously they're coached to say this.  The truth is they really just want to earn money and then spend it.)

Look at how unattractive they are.  And how unruly.  All that pushing, overpowering even security guards.  And there, a child!  What kind of parents would bring their children on such an excursion?  (Also, we've heard rumors that the goblins are among them.  Just bring your cameras to the center and look around.)

Clearly we need to do something about this and stop people from entering stores without inspection.  That doesn't mean everyone entering a store is a criminal, but come on! 

Radio talk show host Laura Ingraham totally gets it.  "Not everybody is going to come into the United States and commit a crime.  I'm well aware of that, as are most Americans."  Right, we are well aware that most people who enter a store aren't going to shoplift.  But if we don't regulate their entrance then we're doomed.   Like Ingraham says, "if you lose control of who comes into your country, for whatever reason, then we [sic] lose it all.   Why is that the case?  Because without order, there is no security.  Without security, our freedoms begin to erode."

You listening Trader Joe's?  You better, because if you don't start checking people's identity cards at the entrance, you're going to need guard towers and machine guns once they're in.

"How many of these Hollywood do-gooders or high-tech billionaires or liberal politicians....would respond to, let's say it's a hundred people surrounding your gates, climbing onto your gates, dropping onto your property, how many of them would open their doors and say, wanna use the bathroom?"
"Jobs or mobs?"

Doh, jobs! And Ingraham's right, come to think of it.  That do-gooder liberal Howard Schulz has never once let me use his bathroom, and I'm a U.S. citizen.  (Though to be fair, the Starbucks outlets he owns let me use them all the time without being invited, or even buying coffee.)   

I'm still silently cheering Ingraham on as I listen to the podcast while waiting in line to pay for my Campari from Milan, Spanish olive oil, and San Francisco sourdough, grateful to her for raising my awareness of the danger of my present situation.  I am in an unpoliced open space.  There are dozens of other shoppers with their carts.   At any second they could cut in front of me.  In fact, they could all crowd together and block my access to the clerk. 

I've shopped there countless times and this revelation of human darkness has never come to pass.  But Ingraham's a smart lady and now that I've encountered her analysis, I think she makes a point. I look around, aware for the first time of the precarity of my situation, and the ignorant complacency of the other shoppers.  Does the woman in the blue parka live nearby?  Or is she day labor at Crate and Barrel, picking up some food to prepare for her family in the suburbs?

Also, what the hell are all these people doing, taking advantage of the open shopping policy?  Don't they know that they should be at their jobs?   (I know, some pointy-head academician will whine about how open labor markets are good for the economy and mobs of shoppers or potential employees are good for jobs, that the clerks at Trader Joe's need customers so they can go form a mob during the holiday sales, say at Crate and Barrel.  "There shall be open borders."  That's what the Wall Street Journal editorial board proposed in 1984 as the next amendment to the U.S. Constitution.  The folks who came up with that probably also thought industry contributed to global warming and preferred peace to war.)

"They broke into Mexico.  That's breaking and entering!" Ingraham shouts, self-energized by her own legal acumen. Anyone listening to her genius analysis knows she could go so much further.

Someone needs to flag the folks who run Trader Joe's and break it down.  Sure, the United States citizens made gobs of money by encouraging guest workers and allowing people to come in and use the bathroom, but there's more to economic viability than private property laws conducive to a functioning labor market and a secure business environment making possible surplus to reinvest.  Don't the owners of Trader Joe's realize that all their customers (except for me) have been breaking and entering?  Are they too busy making money to get this?

No, capitalism is not a panacea, but it does provide obvious examples for pragmatic responses to the horrifying nonsense mobilizing our country's worst nativist reflexes.  

Monday, October 1, 2018

Supreme Court Conference Announcement: Cert Denied for Menocal et al. v. GEO Group, Inc.

From October 1, 2018 Supreme Court Docket for The GEO Group, Inc., Petitioner
Alejandro Menocal, et al.
In its petition last June, GEO reiterated arguments that lost in the Colorado federal district court, and lost in the Tenth Circuit appellate court.  In urging the Supreme Court to review GEO's defense of legalizing slavery before the case has gone to trial, GEO wrote:
[T]he court held that a longstanding government program aimed at reducing detainees’ idle time may now be categorically unjust under some standard that no one has quite pinned down....GEO is being sued for carrying out lawful and longstanding federal policies under an existing federal contract....If interlocutory appeals are still denied, contractors will face a tidal wave of class actions by hundreds of thousands of detainees before a single federal appellate court has reviewed de novo the merits of these TVPA and unjust enrichment claims... 
GEO seems to be under the impression that if it calls "forced labor" "reducing ... idle time" and breaks the law for a long time, its wrongdoing is grandfathered in just because it has a federal contract.   ("I've been driving 90 miles per hour on this freeway for decades. Here's my contract with the U.S. Postal Service. How else am I going to be able to deliver the mail?!") GEO's rationale is evidence that power and money, and the obscurity and secrecy of detention conditions, have been cushioning them for years from the firm's obligations to the rule of law.  (For the origins of this litigation, please see this Washington Post article and details on this and related cases here.)

GEO also argues that their important mission of locking people up urges the Supreme Court to review their case right now:
The combined force of these suits—and more that are sure to follow on the tailwinds of the panel’s decision—are burdensome to GEO and threaten to pass on greater costs to American taxpayers, as the costs of private detention services must rise in response to the litigation. Indeed, that is plainly the goal: to reduce the availability of one of the federal government’s chosen means of carrying out its Constitutional mandate to control the nation’s borders. That alone warrants this Court’s intervention.  
The Supreme Court one day may review this case and others.  In the meantime, we'll have to see how GEO's warnings play out.   The options are: settle and negotiate back pay to the classes certified in Colorado and other states or continue to litigate, lose in a jury trial in Colorado -- that GEO forces crews of six people daily to perform janitorial work is not in dispute -- and then renew their appeals.  Meanwhile, the parties should be on track to resume discovery.   (Oh, and this reminds me: what about their reassurances to their shareholders, that this litigation was baseless and no big deal?) 

Motions and orders on this and six other cases are here, though need some updating.  For an overview of the impact of this litigation, including successful claims that GEO has violated minimum wage laws in the states of Washington and California, see "When Migrants are Treated Like Slaves," New York Times, April 4, 2018. 

Thursday, September 27, 2018

Department of Justice to Immigration Court Administrators: Ignore Pereira

In June, 2018 the Supreme Court made it clear that the immigration courts were accepting putative and not bona fide NTAs.  Shortly thereafter, the Executive Office of Immigration Review (EOIR) says, okay, we'll stop doing this.  And then, in July, EOIR reverses course and tells the courts to accept charging documents that are legally deficient.

On June 21, 2018, the Supreme Court held: "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a 'notice to appear under section 1229(a),' and so does not trigger the stop-time rule" (p. 9).

Less than a week later, on June 27, the EOIR sent an email to court administrators stating: "Effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected."

Then, on July 11, 2018, EOIR's Deputy Chief Immigration Judge Christoper Santoro, apparently at the behest of the Department of Justice, reversed this instruction, as well as the Supreme Court:

The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs. 
The message above supersedes the guidance below. [The email then quotes the email linked above.]
An attorney told me recently that he was no longer going to appear in any immigration courts: "They're not real courts."  Monopoly money works just fine in the game of Monopoly and bogus NTAs are par for the course in fake courts.

Friday, September 21, 2018

Texas Updates: New "Montgomery Processing Center" Immigration Court, Farm Said to Exploit Immigrants on Loan from Polk County Jail

The Houston detained deportation court dockets "continue to increase beyond capacity," according to an official who helps run them.  Documents just released reveal that as of May 24, 2018 almost 1,900 people in the Houston area under lock and key on any given day were in queue to have their fates decided by just three Department of Justice attorneys in Houston and three in ... Miami.  Though many of the Houston detained cases are heard by televideo so it probably doesn't matter so much if the hearing official is 20 or 1,200 miles away.

The government official, Elisa Sukkar, sounded the alarm:
I would like to point out that the Polk numbers are out of control as the docket was very high once, then dropped to 40 or 50 cases, and now is up to 600 cases. 
Today we received 75 Credible Fear Cases out of Polk so we are scrambling in terms of IJ time. 
I have asked CA [Court Administrator] Russelburg to reassign some of hte Polk cases to the Miami HOD judges to stabilize the situation. 
Starting Next week, each Miami HOD judge will dedicate one day a week to the Polk cases as ICE only has 2 VTC [televideo] units at Polk.  (IJ Walton will continue to use one and one Miami HOD judge will use the other VTC.)
Each and every single one of these cases is because of a status crime whose roots go back to English common law, when being caught outside your  parish of birth without a pass might lead to branding, the laceration of an ear, or, transportation to the colonies.

Email on crushing case load for Houston detained docket, click to enlarge

Many of these cases are for people who have been residing in the vicinity of these courts since they were toddlers or even infants.  (To read more on how a poorly conceptualized idea of citizenship is sustaining these practices in the United States and elsewhere, please go here.)

And guess what?  It's about to get much worse.

At the very time at which the government is throwing more people in ICE jails, they are closing the facility with experienced immigration judges and turning their dockets over to attorneys whom the government itself says lack the expertise necessary for these cases.

The agency's solicitation for the new immigration court says, "Because we have an immediate need to to cover this court, we will consider judges who would otherwise not be eligible to place their names on the reassignment register (for example, due to being on the bench fewer than 24 months or having been recently reassigned...)."

From job announcement of vacancies for immigration court replacing Houston detained court, click to enlarge
The email and a partial response to my request for documents associated with the reassignment of immigration judges caused by shifting the people arrested and the court from the Houston city limits and the opening of a new facility in Conroe, an hour away without traffic reveals the time frame is being pushed back from the fall (now) to late 2018 or early 2019.

Other highlights include 104 immigration judges "in process," apparently referring to IJs being hired or moved around (p. 2); Powell and Chris Brisack as two of the five IJs to be assigned to the new court, to be called the Montgomery Processing Center (MPC) (p. 3); individual IJ dockets ranging from 1 (from an IJ who retired years ago) to 603 for Walton at the Houston detained courts (p. 15); the three current IJs for the Houston detained docket will be moving to the non-detained docket downtown (p. 52);


Compared to Judge Brisack's denial rate of 83.6 percent, nationally during this same period, immigration court judges denied 52.8 percent of asylum claims. In the Houston Immigration Court where Judge Brisack was based, judges there denied asylum 87.1 percent of the time.  

Compared to Judge Powell's denial rate of 78.8 percent, nationally during this same period, immigration court judges denied 52.8 percent of asylum claims. In the Los Fresnos Immigration Court where Judge Powell was based, judges there denied asylum 77.4 percent of the time. 

Brisack is currently working at the non-detained Houston immigration court.  TRAC says Powell was at Los Fresnos (Port Isabel) in 2017, but EOIR's list of IJs there now omits him.

The closing of the current Houston detained court alongside a transfer of its operations to an expanded GEO facility in Conroe, Texas, about 45 minutes north, will create an enormous burden on attorneys based in Houston, and thus mean more costly and less accessible representation.


When observing with Northwestern students the detained hearings at Houston for three days in June, I heard from guards and other officials that CCA's contract with ICE was lapsing and it would operate its prison under a new contract with the U.S. Marshals.  There was a lot of fuzziness and I figured it would be helpful to have a sense of exactly who was going where and when, so I filed a records request, the results of which are above.

Also while in Houston, I was told that the new facility will incarcerate people who are now held in Houston CCA as well as the Livingston, Polk County jail, and that Polk County, under attack by civil rights groups for a decade, will discontinue its ICE contracts and subcontracts with MTC, a firm that has a horrifying track record, including riots and forced labor at the Livingstone facility.  At the time we were there, Polk County was the site of grisly outbreaks of infectious diseases and people missed hearings because they were in quarantine.  (I'm waiting for ICE's response to my requests for the reports on this, a FOIA case that is now in litigation.)

I also heard an account that the facility, run by a firm that is the country's third largest private prison operator, was returning to plantation slavery and driving folks held there, most of whom seemed to be long-term U.S. residents, to pick crops.  Someone whose hearing I observed reported to me that he was taken on a bus about 90 minutes away from the facility to work on a farm.  He reported that he and others detained at Polk County spent the day picking fruit and vegetables and collecting eggs.  He further reported that they were taken there on a bus at six a.m. and returned around 5 p.m., and that their pay was $1.  He was horrified and said that he did this just one day. 

I shared this lead with a reporter who was unable to find additional information, so I figured I'd report it here.  (If someone wants to be a whistle blower, let me know! jackiestevens AT

The new court replacing the one in the Houston Processing Center will be called the Montgomery Processing Center (MPC) and will be handling people detained at Joe Corley, in Conroe, and also the new facility adjacent to it, also owned GEO.

Google map satellite view of GEO's Joe Corley Detention Facility and new Montgomery Processing Center,
W. Cartwright Rd, Highway 336, Conroe, Texas
There is a row of prisons on a dead-end street alongside a highway, including one for people with mental disabilities.  When students and I walked around to inspect the mammoth GEO facility under construction -- it was around 6:30 pm and the site was active -- we saw through a modest cage around a small yard people in white uniforms at the adjacent jail.  They were walking silently, slowly in circles at dusk.  The scene would send shivers down the spine of anyone with a calendar for 2018. The bulldozers in the construction site were awaiting the next morning's orders to shift earth to make way for a new building where clerks, guards, attorneys, immigration judges, and those whose bad luck of birth made them a "case" and removed them from society will all together spend endless, pointless days in concrete tombs for zombies.  In the name of law, we lock ourselves up by edicts, a point Lon Fuller made when he explained the validity of war crime trials for Nazi officials.  (The eight criteria for the rule of law inevitably go unmet in the exercise of national sovereignty.)  In the name of rationality, there is only madness, stupidity, and dollars for those too craven for shame and justice.
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