Joe Anderson's Attorney to ICE: Read the Rules, Stop Holding Someone With Evidence of U.S. Citizenship

Last week I wrote about Joseph Anderson, someone the U.S. government is trying to deport despite evidence indicating he is a U.S. citizen.

ICE has issued the following statement:

In the immigration proceedings concerning
Joseph Anderson and issues related to his continued
detention, ICE maintains, based upon documentation
and court decisions, that Mr. Anderson is a citizen
of the Philippines and a lawfully admitted permanent
resident of the United States who has forfeited his
residency status due to [criminal convictions for
nonviolent crimes].

Significantly, in October 1977, the U.S. Embassy in
Manila rejected Mr. Anderson's claim to U.S.
citizenship because he was not his U.S. citizen
stepfather Harold Anderson's blood child and
therefore did not have a valid claim at that time.

[Mr. Anderson is not a "blood child"?  What kind
of 21st century government uses the language of a
"blood child"?]

Mr. Anderson was admitted into the United States as
a lawful permanent resident in 1978 as the step-child
of a U.S. citizen.

In November 2003, Mr. Anderson was convicted of Arizona
state felony charges ... [P]ermanent residents guilty
of these crimes are subject to removal from the United
States.  As a result, he came into the custody of U.S.
Immigration and Customs Enforcement when he completed
his sentence in June 2007 in order to be placed in
removal proceedings.

Multiple court decisions by the Executive Office for
Immigration Review and the Board of Immigration
Appeals (BIA) have since found that Mr. Anderson is
not a citizen of the United States and that he should
be removed to the Philippines for his crimes.  Mr.
Anderson has not submitted any probative evidence
that he was legitimated by his step-father, Mr. Harold
Anderson, under federal or state laws following his
admission as a lawful permanent resident in 1978. 
Nevertheless, he will continue to have an
opportunity to do so in upcoming appeal proceedings,
as he has a Petition for Review pending with the
Ninth Circuit Court of Appeals.

Mr. Anderson is a felon ..., thus ICE is statutorily
mandated by the Immigration and Nationality Act to
keep him in detention during his proceedings. 
However, based on 9th Circuit precedent decisions, he
was entitled to and has received a bond redetermination
hearing, at which an immigration judge ordered his
release upon the payment of a $10,000 bond. He has
failed to post that bond, and thus remains in ICE
custody.

Here is the problem with this statement: Mr. Herbert Flores-Torres. Last week I made a mistake and said that ICE held him, a U.S. citizen, without authority for three years.

In fact, ICE locked up Mr. Flores without authority from June, 2005 until December, 2009, four and a half years. (There are many other cases like this I've encountered in my research; space does not permit their discussion here.)

Mr. Flores suffered through the same legal nightmare and ICE custody as Mr. Anderson--including several negative decisions on his U.S. citizenship claim by an immigration judge (hereafter, EOIR attorney) and the Board of Immigration Appeals. But he eventually won.

To ward against this ICE has come up with a new policy: the government may issue deportation orders and require hearings in an immigration court, but ICE may not keep people in custody who provide evidence of U.S. citizenship. The memorandum says, "In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention."

Regardless of the ultimate determination of Mr. Anderson's citizenship, Kari Hong, Mr. Anderson's attorney, thinks it's time for ICE to start following its own rules and release her client immediately: "The policy allows the immigration proceedings to continue but with him to be out of custody. This seems a reasonable regulation. It ensures you do not have a U.S. citizen detained. ICE appears to be in violation of its own regulation."

Although finding against Mr. Anderson on the merits of his claim, the Board of Immigration Appeals found evidence on his side and wrote, "We agree there is some support for his argument" claiming U.S. citizenship.

That this position has been rejected means little as far the final disposition of Mr. Anderson's citizenship claims. Mr. Flores is a U.S. citizen and the BIA ruled against him as well. However, it's hard to understand how the government can maintain it has certainty that Mr. Anderson lacks any evidence of citizenship when the BIA says it found "some support for his argument."

Moreover, the government is in no position to assert its certainty about Mr. Anderson's evidence when they were demonstrably wrong about similar claims they made in the case of Mr. Flores, and when the EOIR has had so many of its decisions reversed by the federal courts. One federal decision went so far as to publicly ridicule the EOIR:

This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice. Whether this is due to resource constraints or to other circumstances beyond the Board's and the Immigration Court's control, we do not know, though we note that the problem is not of recent origin. All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts, and that the power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them in its Immigration Court and Board of Immigration Appeals. Benslimane v. Gonzales, 430 F.3d 829 (2005).

In Mr. Flores's case the district court judge's opinion on his case was a lengthy and nuanced evaluation of family law in California and El Salvador, a model of textual exegesis that bears no relation to the poorly reasoned opinions produced by the EOIR. For instance, Mr. Anderson is a citizen if Harold Anderson, Jr. is considered to have legitimated Joseph in his residence or domicile, as well as Joseph's place of birth. Under California law during this period, Harold Jr. appears to be Joseph's presumptive father, but the Board only considered paternity laws in the Philippines.

In his second Motion to Reconsider, Mr. Anderson's appeal conveyed frustration with the Board's failure to consider the law and legal analysis:

In its decision, this Board stated, ‘Insofar as the respondent was born in the Philippines, we must look to that jurisdiction’s laws to determine whether he has been legitimated.’ BIA dec. at 2. The decision offered no explanation as to why the place of birth controls for purposes of legitimation. [Note:] Several paragraphs before the discussion of legitimation, the decision states that the ‘applicable law for transmitting citizenship’ is the ‘law in effect on the child’s birth date.’ BIA Dec.at 2. While this Board’s decision may be implying that the relevant law is also the law in effect at the place and time of the child’s birth, case law only supports the interpretation that the date of the child’s birth is controlling for purposes of determining the law under which citizenship, not legitimacy, will be determined. Furthermore, the idea that the applicable law of legitimacy is the law in effect at the place and time of birth is at odds with the plain language of the statute...

No wonder the federal courts have to intervene.

This is not to say the federal courts always get it right. Two recent opinions in the Ninth Circuit misread U.S. citizenship law and misstate the history of kinship rules in world history, including the United States. Martinez-Madera v. Holder, 599 F.3d 947 (2009) and U.S. v. Marguet-Pillado, 560 F.3d 1078 (2009) assume that families are based on "blood," not law.

Here's what the opinion states in Marguet-Pillado:

It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution, and the latter is provided for by the enactments of Congress. It would be a bit surprising to discover that over the decades Congress had selected a method that relied on neither concept, but, rather, was content to have United States citizenship acquired at birth by a person born out of wedlock, who was not born on United States soil and who, at the time, did not have a natural parent who was a United States citizen. As it is, there is no cause for surprise

The problem with this passage is that citizenship law from 1953-1986 provides for exactly this possibility, by making family ties retroactive to the time of birth. A step-father who marries one's mother becomes one's father under this law.

8 USC §1409(a) defines “child” for purposes of acquired citizenship as an

unmarried person under twenty-one years of age who is—(A) a child born in wedlock; (B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of step child occurred; (C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of he legtimating parent or parents at the time of such legitimation; (D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person.

(B) applies not only to the situation the appellate court ridicules, but to Harold Andersons Jr.'s relation to his son, Joseph. Only Officer Anderson was named on Joseph's birth certificate as his father, had married Joseph's mother, and had held him out as his son as long as Joseph knew.

Moreover, the truly absurd statement is that kinship ties have been based on knowledge about paternal genetics. That information was not even available until the late 20th century. This language, and laws about the authority of State Department findings, also explains why the U.S. embassy's ruling against Mr. Anderson's citizenship claim when he was two do not controvert his claim now.

Many other U.S. citizens had been given improper documents at some point indicating they were legal permanent residents. This is evidence of government error, not grounds for deportation.

Complicated legal questions cannot be evaluated by a blog. But if the government says that ICE may not incarcerate anyone who has even the possibility of probative evidence of U.S. citizenship, and Mr. Anderson has grounds for his arguments, then while this is being settled, ICE should not risk punishing Mr. Anderson for its mistakes, as it demonstrably did in the case of Mr. Flores.

Mr. Anderson's family cannot afford the $10,000 bond. The procedures for releasing people with evidence of U.S. citizenship apply to everyone, regardless of any criminal history. Mr. Anderson served his time for a nonviolent crime far less severe than the one his government is perpetrating against him: false imprisonment. It's time for his government to follow the rule of law and release him.

----------------
Thanks to the ACLU, the Nation, the Nation Institute, and Yale Law School's Media Freedom and Information Access Practicum I did go on the tour of the Varick Detention Center on Tuesday. I will be writing about this shortly for The Nation and at more length here as well.

Also, on Sunday, Henry Raines had me on his am radio show in Tampa to talk about States Without Nations, the book. If you want to hear a caller denounce me as a pot smoker (his claim, not mine), listen in...

ACLU Demands Varick Jail Tour for Nation Reporter: ICE Backs Down

Last week I wrote about ICE's long history of denying media requests for tours at its Varick Street jail, including my own requests since November 16, 2009. (The ICE lock-up is on the fourth floor of the federal building at the corner of Varick and Houston, a half block from the Film Forum.)

The facility will be either closing or changing to new management (ICE) on February 27, 2010, depending on the source, but it's not going to be what it is and that's why I had been pressing for ICE to finally and for the first time, allow a press tour.

Yesterday the American Civil Liberties Union and the New York Civil Liberties Union, on behalf of the Nation, the Nation Institute, and me sent a letter to ICE pointing out that its failure to approve any media tours at the Varick Street ICE jail was violating its own procedures as well as the First Amendment.

This morning, I received a note from ICE indicating that my request for a tour had been approved. It's scheduled for Tuesday, February 16.

This is great because it shows that there is some rule of law and that with enough mobilization the government, including ICE, may even follow it.

Thank so much to Lee Gelernt and the ACLU, Udi Ofer of the New York Civil Liberties Union as well as Betsy Reed, my editor at The Nation and Esther Kaplan of the Nation Institute for the thoughtful work that went into putting their imprimaturs on my request. Thanks also to Ben Wyskida at the Nation and Maria Archuleta at the ACLU for figuring out how to make the public aware of ICE's policies.

And thanks also to David Schulz, a media attorney who supervised the diligent efforts of students at the Yale Law School Media Freedom and Information Access Practicum. It's a new practicum, just started this year and two of its founding members, Adrienna Wong and Nabiha Syed, along with a new member Stephen Gikow assembled the underlying information that went into the letter.

I had been pressing the same arguments that appear in the letter for almost three months, but it took the efforts of Yale Law School students and backing from my colleagues at the Nation and the ACLU to make them heard.

ICE Agents Lose Track of US Citizens in their Custody, And the Rules for Releasing Them

On April 9, 2008, when I met Joe Anderson, then 30, through a televideo contraption, he was still in shock.

It had been over three months since ICE locked him up at the Pinal County Jail in southern Arizona while they were disputing his U.S. citizenship and Joe still couldn't believe it. His family lacked funds for an attorney and he was doing his best to represent himself, and also relying on the advice of overstretched attorneys at the Florence Immigrant and Refugee Rights Project, which runs the EOIR's Legal Orientation Program in the area.

In late March, 2009 Joe was still there. Confusion and outrage were replaced by grief and frustration over the senseless deprivation of his liberty and the threat that he would be sent to a country he hadn't seen since infancy and where they spoke a language he couldn't understand.

Joe said he was keeping his eye out for shows on the Travel Channel, in case they had something on restaurants in the Philippines, the country to which his former state governor, Janet Napolitano, is trying to ship him. He was thinking it might be good to know about fancy tourist restaurants that might need a native English-speaker.

(I asked him about the access to cable television and he said ruefully, "Oh, yeah, they keep us well-entertained in here.")

Because he was born on a foreign military base, as was his Senator, John McCain (R-AZ), Joe's evidence of U.S. citizenship is more complicated than a simple birth certificate.

Under ICE procedures, ICE is prohibited from keeping him locked up while the government sorts this out.

A memorandum from John Morton, ICE Assistant Secretary dated November 19, 2009, which I obtained recently through a FOIA request, states:

If an individual already in custody claims to be a USC, an officer must immediately examine the merits of the claim and notify and consult with his or her local OCC [Office of Chief Counsel] ... If the individual's claim is credible on its face, or if the investigation results in probative evidence that the detained individual is a USC [US Citizen], the individual should be released from detention.

"Probative," according to the Oxford English Dictionary, means "Having the quality or function of proving or demonstrating; affording proof or evidence; demonstrative, evidential."

Joe's birth certificate with his father's name on it, and the copious documentation of his father's marriage to Joe's mother as well as the rules for legitimacy and paternity in the places of his residence (California and Arizona) easily meet this criterion. Probative does not mean conclusive "proof," only that the evidence is relevant and could contribute to legal decision.

This morning I called the Pinal County Jail and spoke with Commander Montanyo. I told him that the jail he was running for ICE was holding someone over whom ICE had no legal authority. He gave me the number of the ICE deportation and removal office at the nearby Florence Service Processing Center (Orwell talk for ICE Jail).

I called the ICE jail where the ICE agents work in Florence and the operator said I needed to speak to "upper management." She connected me to the voice mail for Nicole Moore and I left a message indicating that her office was unlawfully ordering the confinement of someone with probative evidence of U.S. citizenship.

Because the procedures indicate that ICE prosecutors are supposed to review these cases, I called the DHS Phoenix office and spoke with the ICE desk attorney, Jim Harmony. I provided him with Joe's full name and "alien number" but Mr. Harmony said that he could not locate Joe in his database and questioned whether he was still being detained.

I gave Mr. Harmony the phone number of the Pinal County Jail as well as the phone numbers of two attorneys now assisting Joe with his appeals. He assured me he would investigate and provide me information he was authorized to make available to me.

A few hours later I called the Florence ICE jail and someone answered the phone.

Officer S. pulled up Joe's file and correctly pointed out that an "immigration judge" (hereafter EOIR attorney--these folks are NOT actual judges) and the Board of Immigration Appeals had found that Joe was not a U.S. citizen.

I pointed out that this was not a legally final determination of Joe's citizenship. BIA decisions on acquired and derived U.S. citizenship claim have been overturned by the Ninth Circuit Appellate Court and, recently, even by a district court judge- I will discuss Herbert Flores-Torres' case in a later post because it's so fabulous and also so complicated.

The rule I had quoted was not requiring ICE to release only people who had proven conclusively to be U.S. citizens--alas, ICE also needs education on this as well--but was indicating ICE agents lacked the legal authority to hold people who had "probative evidence" of U.S. citizenship.

Joe is not his father's biological son, but under the laws of Arizona and California, Joe is his father's legitimate son and this--along with the legal documents verifying this--is sufficient to trigger acquired U.S. citizenship. However, the BIA simply substituted their own understanding of paternity for the one in the law. In a related case in the Ninth Circuit, Herbert Flores-Torres recently prevailed in a derived citizenship claim that had been ruled invalid by an EOIR attorney and the BIA, but only after he had been held in ICE detention for two years.

The memorandum from Morton states:

While some cases may be easily resolved, because of the complexity of citizenship and nationality law, many require additional investigation and substantial legal analysis. As a matter of law, ICE cannot assert its civil immigration authority to arrest and/or detain a USC.

In the case of Mr. Flores-Torres, and thousands of other US citizens who have been confined by ICE, ICE has been demonstrably breaking this law.

Presumably that's why these procedures were developed. The only way that ICE can guarantee it is not confining U.S. citizens is if it releases people who are attempting to prove they are U.S. citizens.

DUH, right?

Except that Officer S. at the Florence ICE jail wasn't buying it. After telling me that the ICE records did not indicate Joe had even claimed US citizenship, which explains why his file had not been reviewed for release as the new procedures required, Officer S. kept repeating that the immigration judge and BIA had found against Joe and ICE was holding him for the appeal.

I repeated the points above and Officer S. said he would call me back.

True to his word, he called, "Can you send me a copy of what you were reading so I can send it to litigation?" I asked if he had misplaced his own copy or if he just had no idea what I was talking about. He said, "They come out with these new things every day."

Basically ICE was keeping its rules secret and then after I obtained them via a FOIA request, requiring me to send them their own rules in order for them to be enforced. (Sometimes I feel like ICE is detaining all the immigration attorneys, civil rights lawyers, and even me with this nonsense.)

"I was supposed to get out on my grandmother's birthday," December 23, 2007, Joe told me the first time we met. "She said that was the best present she could have." More than two Christmases later, in clear violation of ICE procedures, the law, and common sense, Joe remains locked up in the Pinal County Jail.

Jennie Pasquarella, staff attorney with the Southern California ACLU, after I explained the case, was struck by how long Joe's been detained: "Regardless of this memo, there's no good policy reason why someone with a credible claim to U.S. citizenship should be detained for years while they're fighting their case."

I'll be checking back in with the folks at ICE tomorrow and see if they have decided to read and follow their own rules.

"The Prison at Varick Street": Coming Soon, to an ICE Lock-Up Near You. (ICE Censors Previews)

The problem with locking up people indefinitely who have not committed a crime is that....

Okay, so at this point there are several million answers, at least one for every single individual who has been ripped away from his or her home and community and locked up by this government, exacerbated because men and women with guns and uniforms who break the rules know they can hide the violations from the public in real-time and later deport the evidence.

At least in prisons, the convicts stay in your country and you know they might figure out a way to get your badge, or worse.

Civil rights attorneys and journalists have been diligent in exposing the abuses that occur in these places, but as the articles and reports below indicate, it's a little like Whack-a-Mole. The government shuts down one evil facility but then opens up two more.

The public finds out about San Pedro's deadly mold and human rights violations? The ACLU wins some lawsuits? No problem. Just stick the people held there in another miserable place, perhaps a basement of a federal building, B-18 in Los Angeles.

People learn about the Hutto Detention Center treating kids like felons? The government's right on it. Close it down and lock the kids up in Pennsylvania, or better yet, steal them from their parents and place them in foster homes, as attorneys in southern Arizona observe is now happening when mothers are placed in detention centers.

Folks protesting at a NY detention center and filing a lawsuit because of poor conditions?

Open Varick. That's right. OPEN Varick. See for yourself, from an amazing, must-read 1993 ACLU report that appears in PART ONE and PART TWO:

The recent protests about Varick and the plan to shut it down, as well as the reports and reports on reports and reports on reports on reports since the 1980s reveal two things:
1) This particular failure of self-governance is an embarrassment to the U.S. Constitution and the concept of democracy. It is disgusting that this irrational and cruel system is so impervious to the rule of law.
2) We gotta make the Moles feel like they are surrounded by bright sunshine and that everywhere these creepy beasts pop up it is easy for journalists and anyone else to show up, making ICE lock-ups so queasy about their very existence that they die out or mutate into something a democracy can live with.

This means telling ICE its rules on visiting detention centers and press tours have got to go. Partly that's been done (it's called the First Amendment) but it needs to be followed and if it's not followed, then we need to make them follow it.

Right now ICE stonewalls on allowing press tours of any detention center and, in the case of Varick, simply prohibits it altogether. Varick lets in other groups for tours, just not the press, and that's unconstitutional discrimination. That's the policy implemented by ICE Propagandist Richard Rocha, who, according to two ICE agents, denied my request for a press tour.

(He also has said, in an interview with the Los Angeles Times, "ICE does not detain U.S. citizens," a lie sufficient to earn him this special, though not unique, title.)

And yes, the government locking up U.S. citizens at Varick also was happening in 1993:

Deja Vu All Over Again

"A startling petition arrived at the New York City Bar Association in October 2008, signed by 100 men, all locked up without criminal charges in the middle of Manhattan. In vivid if flawed English, it described cramped, filthy quarters where dire medical needs were ignored and hungry prisoners were put to work for $1 a day."

--Nina Bernstein, "Immigrant Jail Tests U.S. View of Legal Access," New York Times (November 1, 2009).

Hmmmm...

I bet Lucas Guttentag, Judy Rabinovitz and Lee Gelernt -- all still with the ACLU Immigrant Rights Project, which published the 1993 report -- do not find this petition that startling. They were moved to write their report because in the spring of 1990, guess who approached them with their problems?

Right, the Varick Street detainees.


(I was at Varick Street recently and a woman visiting her boyfriend told me he was concerned about a Chinese cellmate. He didn't have anyone on the outside sending him money and without being able to buy snacks from a commissary account people go hungry.)

Well, at least the government might do something, right?

"In response to ongoing reports of abuse, INS Commissioner Doris Meissner appointed a Citizens' Advisory Panel in March to review complaints. It is still too soon to gauge the impact this 15-member group will have on an entrenched system."

Well, not really.

The passage is from a terrific piece of investigative journalism Alisa Solomon wrote for the Village Voice. It appeared on August 8, 1998.

12 years later it seems fair to say that the group had no impact.

Still Groundhog Day. Again

[D]ozens of protesters gathered outside a Greenwich Village detention center on Thursday to demand the release of Jean Montrevil, a Haitian immigrant rights advocate and a community leader in New York who has been detained since December while awaiting deportation.

Kirk Semple, "Demonstrators Press for Haitian Advocate’s Release," The New York Times, January 14, 2010. article in The New York Times,

That was now.

This is then:

On Sunday, 150 people gathered outside the Immigration and Naturalization Service's detention center on Varick Street in Manhattan to protest the inhumane treatment of those held inside.

This is from an opinion piece Alisa Solomon wrote that appeared in the New York Times on Saturday, June 11, 1994: "The Prison on Varick Street." Solomon's essay describes the plight of Lulseged Dhine, who had been held at Varick for four years. At 4:30 a.m. he was awakened and sent to Arizona, according to INS, to "accommodate his request for fresh air."

What's Next? OR Next Year's Punchline?

26 years later, it seems the government is listening, sort of. Semple writes: "[F]ederal immigration officials announced that they would close the center, in part because it lacked access to open-air recreation."

New York Times staff writer Nina Bernstein also had her request for a tour turned down -- she writes about this in "Immigrant Jail Tests U.S. View of Legal Access," November 1, 2009.

And, yes, in the 1990s, Alisa Solomon said, she, too was turned down when she requested a tour.

President Obama Thinks Transparency Means He Disappears on Constitutional Rights

If the government has its way, on February 26, 2010 the "Prison on Varick Street" will end its run and the press will have never set a foot inside. And an important if shameful part of New York City's history since 1984 will vanish without specific documentation of its mildew, lack of fresh air, light, and unsanitary conditions that all sound vague and abstract as described here because I have never been allowed to see what it's really like in there and the people who are allowed in are not supposed to write about this. (These descriptions are third-hand summaries from my conversations with visitors at Varick and second-hand reports by Ms. Solomon and Ms. Bernstein.)

This would be not only a crime against history, but also a violation of the First Amendment. As long as a prison, or any other government agency, provides access to one group, as has been the case at Varick for law students, judges, and attorneys, then it cannot discriminate against the press.

I presently have a new request pending and am hoping for a different result. If you have been on a tour at Varick some point, please write and let me know!

Man Impersonating Federal Agent Impersonating Federal Agent

This is SO excellent!

"Man Arrested on Charges of Impersonating Federal Agent and 'Deporting' Distant Counsin's Wife," Los Angeles Times, February 3, 2010.

Demolishing any doubts that it is possible to deport someone without any legal authority, an enterprising Californian dressed up like the people who dress up like people who enforce the law and used a badge to send to the Philippines a woman who had the right to remain in this country.