Houston ICE Attorney Calls Due Process for U.S. Citizen "Idiotic" - Seeks Reinstatement of Removal of Texas Mother

[5/13/09: Cerna's relatives just located her parents' marriage certificate at a town hall in Nuevo Laredo, MX; this helps prove her U.S. citizenship. Meanwhile, Cerna is threatened with detention at any moment.]
The Immigration and Customs Enforcement agency (ICE) owes another apology to a probable U.S. citizen, Julia Cerna, 42, whose due process rights and physical security ICE Assistant Chief Counsel Tracy Hamby jeopardized Wednesday, May 6, 2009 in a Houston immigration court.

ICE in Washington, D.C. had been working with Cerna to protect her from ICE custody as she was documenting her claim to U.S. citizenship, but Hamby apparently found this offensive and made an end-run around Cerna's Constitutional rights and the interests of justice.

Here's an excerpt from a message Cerna's immigration attorney in Houston, Amy Tehauno, sent Thursday morning to an ICE public affairs spokesperson and copied to me, describing the events in the immigration court Wednesday:

At the first Master Calendar hearing in Houston before Judge Clarease Rankin-Yates yesterday, ICE Assistant Chief Counsel Mr. Tracy Hamby appeared for the government. He immediately moved to terminate the proceedings, which was unopposed by the Respondent as we believed that it was appropriate to permit Mrs. Cerna to apply for her Certificate of Citizenship and U.S. passport administratively/affirmatively. Mr. Hamby's words were something to the effect that the Immigration Court was an inappropriate forum to make a citizenship claim, a statement with which I agree.

However, Mr. Hamby then indicated that he intends to send the file to Detention and Removal to act on the old expedited removal/order reinstatement, and recommended that we file the N-600 [application for a Certificate of Citizenship] as soon as possible so that it will be on file when, presumably, my client is detained again.

I believe that the exact description Mr. Hamby gave in court of the actions of ICE in attempting to accord Mrs. Cerna all due process of law in presenting her U.S. citizenship as a defense to removal (an opportunity that she was not previously afforded) was "idiotic." Mr. Hamby did not consult with his office in moving to terminate and taking on this decision.

Hamby did not reply to two voice mail messages requesting comment on this incident in immigration court, part of a public hearing.

Hamby understood that an ICE trial attorney and immigration judge in Oakdale, Louisiana had allowed Cerna to be released on $5,000 bail while she was tracking down the documents for proving her U.S. citizenship and thought this idiotic. Exercising legal discretion over a possibly unlawful action -- ICE arrest or deportation of a U.S. citizen -- Hamby terminated the hearing only to reinstate an earlier expedited removal order issued in 2000 by a border officer (not a judge), issued when Cerna did not know her father's birth in Alice, Texas established grounds for her being a U.S. citizen and signed a statement that she was not a U.S. citizen. ICE interview notes also indicate she stated her father was born in Alice, Texas. The agent should have informed Cerna of this being grounds for investigating a claim to U.S. citizenship.

Before Cerna has an opportunity to document her citizenship, Hamby is authorizing ICE to come to her home, arrest her, and stick her back into a detention center. (Tehauno explained that they have a number of documents but need time for further research of records from the 1940s to 1960s before submitting the application.)

Cerna is fortunate because Tehauno has enlisted the support of a graduate student in history to find the necessary documents, but Tehauno is concerned more generally about acquired and derived citizenship cases for U.S. citizens who are poor and do not have access to an attorney or investigator.

BACKGROUND
Julia Cerna, 42, is raising two teenage sons in Magnolia, Texas, a suburb of Houston where she's lived for 20 years. She also has two daughters, in their twenties, one of whom had to take charge of the household while her mother was in detention last year. According to Tehauno, who is representing Cerna for a low fee to be paid after the bail is returned, Cerna has no criminal convictions. The only reason she is about to be deported is that she lives in a country in which citizenship rules are complicated and ideas of what counts as "U.S.-American" racialized as White, so that sometimes people born U.S. citizens abroad do not know they are U.S. citizens.

For instance, someone called me yesterday who applied for a U.S. Certificate of Citizenship in 2007 only because he had a friend from Europe whose parent was born in the U.S. and was applying for a Certificate of Citizenship. Because the man who called yesterday was of Mexican descent and lives in a country where the political if not legal message is that real U.S. citizens can never be born in Mexico, it never even occurred to him that he was a U.S. citizen at birth.

Legally, however, U.S. citizenship is predicated on meeting the criteria for U.S. citizenship, not encyclopedic knowledge of citizenship laws that even trained border agents and ICE attorneys do not understand.

Out of frustration that her client who might well be a U.S. citizen was in ICE custody, Tehauno said she "pulled an email address for an ICE press person giving quotes to press saying 'We don't deport U.S. citizens. She [Ernestine Fobbs, ICE public affairs] was great. She called me within an hour and I explained the situation to her."

ICE sent two agents to interview Cerna in an Alabama prison. Cerna was transferred to Oakdale, Louisiana where an immigration judge bonded her out of detention for $5,000, changed the venue for the hearing to Houston, near Cerna's home, and the ICE trial attorney waived appeal. These decisions are a good indication that they believed Cerna had a viable claim to U.S. citizenship and did not want a U.S. citizen in an ICE detention center.

But then came yesterday's hearing. Tehauno concluded this morning's message to Ernestine Fobbs, ICE Public Affairs, as follows:

I truly appreciate your assistance, and the considered and thoughtful actions of ICE in Alabama and ICE Assistant Chief Counsel in Oakdale, Louisiana. All of the actions from your office and agency through yesterday indicated a genuine concern that our government take every precaution not to deport U.S. citizens, as continues to occur in cases such as that of Mark Lyttle. However, Mr. Hamby's intended course of action indicates a lack of consistency within the agency in that regard. We will not oppose a motion to reopen the proceedings before Judge Rankin-Yates, should ICE Assistant Chief Counsel in Houston prefer to handle this through the immigration courts. Thank you again for any assistance that you may be able to render.

Fobbs has not replied to Tehauno's email message about Hamby's action undermining the decisions of the immigration judge and ICE Assistant Chief Counsel in Oakdale, or to phone or email messages from me.

Tehauno said: "There should be onus on the government to make sure that people are not citizens of the country. Before they deport people and ruin their lives and lock them up in prison they should absolutely know they're not citizens." Tehauno was disturbed by the harsh and arbitrary consequences of the discretion given to ICE attorneys, "It's happening a lot and there's no one in the government accountable. There 's no coherent government program, and then a case lands on the desk of someone" who characterizes due process rights as idiotic. (Well, that last phrase is a loose paraphrase of what Tehauno said...)