Detainees Charge "Slave Labor" at Detention Centers

UPDATES (May 25, 2014)
-A FOIA lawsuit to obtain more information on the work programs from ICE and the private firms was filed on May 6, 2014. 
-"One Dollar Per Day: The Slaving Wages of Immigration Jail Work Programs - A History and Legal Analysis, 1943-Present" (May 15, 2014, 160 pages) reviews these programs in detail and challenges the government's claim that they are legal.

One of the many dirty little secrets about ICE jails is that, depending on the facility, much or all of the work done to keep them going -- from handing out uniforms to buffing the floors to cleaning the toilets to baking the bread -- is being done for $1/day by the people who are locked up.

I've been planning on writing up my research on this topic for quite some time, including posting the response to my request under the Freedom of Information Act for the dollar amounts paid by the various facilities to these detainees.  It took over a year for ICE to respond to my request.   And then it took me several months to catch up to this piece of my research but at the instigation of a reporter I'm posting this response now and will provide more of the background research later.

In brief: the ICE jails are paying people $1/day for work that minimum wage laws would require compensated at  $29 - $58/day.   ICE bills this as a "volunteer work program" but nothing in this program fits the definition of this under federal employment law, including that people volunteer for a cause based on "humanitarian" reasons.  The prisoners are doing this work so that they can buy food and hygiene products.  If they don't have relatives on the outside to pump up their commissary accounts then they'll buff floors, as did U.S. citizen Mark Lyttle.  If they do, then, as "kidnapped Canadian Kenneth Danard" told me, they won't do this "slave labor."

The colossal "savings" from paying people a small fraction of the legal wage makes possible these centers.  How much exactly is being saved?  Here are the reports verbatim: you do the math.

Below is an excerpt for the monthly payments from just one detention center.  Each dollar is a day's payment's to one detainee, so July 2009 at 5,815 = 5815 individual days or shifts of labor.  Not all of the shifts are 8 hours but they go up to that.  If the range of hours worked for this example is 4 - 8 hours day, then the payments that should have been made for July 2009 under federal minimum wage laws would be $168,635 to $337,000.  Again, what actually was paid was $5,815.

El Centro Contract Detention Facility, California

(Actually, I will be writing more about the policy's history and why it is unconstitutional: in brief, the 13th amendment exempts prisoners from slave labor but it does not exempt people who are being held pending a hearing before an immigration judge.)

Correction:  The above table initially was identified as for the Varick, NY  facility; the tables in the FOIA response were not marked and these were included among the Varick documents.  Closer analysis revealed they referred to the El Centro Facility and a recently posted research paper reflects this, but I had forgotten that it had been mislabeled here.  Ahtna Technical Services, Inc has contracts for both facilities.  (Ahtna released documents indicating that they were running a detainee work program at Varick but the Varick contract omits the "Contract Line Item Number" and amount budgeted for the program in that time frame.)

DHS Hides Government Documents Confirming Esteban Tiznado's U.S. Citizenship

 

  FOIA response--New evidence, United States government possesses official Mexican documents contradicting DHS and prosecution assertions that Esteban's father was born in Mexico

As reported here several months ago, a jury found Esteban Tiznado had acquired U.S. citizenship at birth, through his father Jesus Tiznado, but in late 2011 Immigration and Customs Enforcement (ICE) deported him anyway.  ICE continued to insist that his father was born in Mexico and not the United States, Jesus's Arizona birth certificate notwithstanding.   (Jesus is now deceased.)

Esteban returned to Arizona in 2012, was arrested because of his deportation order, and for almost two months has been in an immigration jail, awaiting a June 4, 2012 hearing.

Documents recently received in response to a request under the Freedom of Information Act show that the government actually approved Esteban's petition for U.S. citizenship in 1980 but never informed him or his siblings of this, and then pursued efforts to reverse the approval, going so far as to hide records from its own investigation that confirmed Esteban's claim to U.S. citizenship.  The result has been the ethnic cleansing of Esteban and his family from their rightful places in their Tucson homes and history.

From Esteban's 1084 page file, of which 148 pages were redacted in their entirety:

INS Never Sends Esteban's February 17, 1980 Citizenship Approval.

 Note that there is nothing to indicate that there was any tampering or fraud involved with the documents submitted and that they were "seen and returned."  Nonetheless, On May 1, 1989, an ICE predecessor agency Immigration and Naturalization Service (INS) agent wrote a letter to Jesus Tiznado stating that it was revoking the approval he never received.

1982 Investigation
Two years after approving the Tiznado petition to recognize Esteban as a U.S. citizen, the INS Tucson office initiated an investigation into the validity of  Jesus Tiznado's delayed birth certificate showing birth in Topawa, Arizona.

In a request of the Mexican government to search for "Birth Record or no existence Record" for Jesus in El Plomo, Sonora and Hermosillo, Sonora, the INS officer wrote: "several of the children have his place of birth as Topawa, Az. and several have it as El Plomo, Son., Mexico.  The ones that show Arizona have been altered...It is possible that we have a suspect third party agency involved."

-The Mexican government conducted the search and a December 14, 1982 notation on this same document indicates the INS received documents from the Mexican government certifying its search of official and church records revealed no records of birth for Jesus Tiznado.



 1985 Investigation
Not content with these responses, the agency in 1985 continued its efforts to purge Jesus and his children from the ranks of U.S. citizens, requesting on this occasion a search of the records in Rancho Vera Cruz, and requesting yet another request of the records of El Plomo, both in the state of Sonora.

 Not only were no documents found but the Mexican government issued several certificates stipulating that these records did not exist.

 Furthermore, Esteban's 1979 certificate of legitimacy issued by Mexico states Jesus Tiznado was born in Topowa, Arizona, and shows no indications of having been altered, nor does the INS suggest otherwise.

Indeed, INS records also show that immediately upon copying the records, the originals were all returned, raising questions about the basis for the officer's assertions that they were "visibly altered."

2010 ICE Arrest Report States Jesus Born In Topawa, Arizona
Furthermore, ICE's own recent records indicate Jesus Tiznado IS a U.S. citizen.
An October 18, 2010 ICE warrant of arrest and removal issued in Salt Lake City for Esteban indicates that Jesus Tiznado's nationality is "United States."

(Why did they nonetheless deport Esteban again?  Because that's what ICE does.  The ICE arrest report notes Tiznado's 2000 conviction for Illegal Reentry but has no reference to the more recent Not Guilty verdict from his trial on the same charge in 2008.)

Why the change between 1980 and thereafter?

The May 1, 1989 letter states the reasons for this decision: "an investigation into the documentation used to obtain the delayed birth certificate [for Jesus], documents relating to other family members, and the testimony of various family members which is a matter of record..."

An undated report titled "Esteban Tiznado-Reyna, United States Citizenship Analysis" by DHS Assistant Chief Counsel Robert C. Bartlemay appears to have been prepared in late 2011, after Esteban had emphasized to his most recent ICE captors the 2008 jury Not Guilty verdict based on his U.S. citizenship.  It appears to be a justification for proceeding with his deportation despite evidence of Esteban's U.S. citizenship. 

This analysis provides the most explicit factual allegations for this reversal.  It is a deeply disturbing document, and will be more so if it turns out to be representative of how the Tucson office was handling citizenship applications for people of Mexican descent.

For its 2008 Illegal Reentry prosecution, the U.S. claimed that Esteban's sister's birth certificate indicated that Jesus was born in Rancho Vera Cruz, an assertion the jury rejected after hearing the testimony of USCIS officer Jaime Yslas and that Bartlemay reiterates.

Bartlemay never mentions any of the  the Mexican government's research falsifying the U.S. government's claim Jesus was born in any of the places INS claimed he was born, including Rancho Vera Cruz.  Bartlemay never reflects that the evidence in his own dossier shows only one government issued a birth certificate to Jesus Tiznado: the government of Arizona, in the United States of America.

Instead, Bartlemay wades into irrelevant and unsubstantiated minutiae, much of which is actually falsified by the agencies' own records.  This includes asserting that Esteban's mother, "stated before an immigration officer that Respondent's father was a native and citizen of Mexico" and that "Respondent's father used one of his brother's paperwork to claim birth in the United States."   (Under oath during the trial and when I spoke with her, Julia denied ever making this statement and the government has produced no specific evidence of this alleged statement; other records attribute the statement to the daughter and it appears Bartemay just misread this.)

 More importantly, anyone with a passing familiarity with the documents, especially a government immigration attorney, would realize that such a claim can't possibly be true: all of the government documents the agency credits with (falsely) asserting Jesus's U.S. citizenship are in relation to Jesus's children or his wife.   That is, Esteban's and his siblings' birth certificates, Julia's marriage certificate, and the birth certificates of the other siblings are all from documents for Jesus's family members, not that of his brother, Miguel.

The only other document at issue that could have been altered would be the baptismal certificate, but I personally verified with the Pagago church that they have an entry in their original 1924 books for the baptism of Jesus Tiznado, as well as an earlier one for his brother Miguel, a point volunteered by the woman doing this search for me because someone had recently contacted them for this information to prove the U.S. citizenship of Miguel's grandson and Esteban's cousin, Humberto Tiznado.  (Humberto had been deported several times but in 2011 was issued his Certificate of Citizenship, thus confirming that these earlier actions were unlawful.)

There are a few other points Bartlemay raises to cast doubt but all of them are contentious and lack documentation, in contrast with the documentary evidence Jesus was born in Arizona.  For instance, Bartlemay credits his daughter's alleged statement that Jesus was born in Mexico (she also denied under oath making this statement)  but discounts a sworn statement about Jesus's birth in Arizona: "The affidavit prepared by Respondent's friend stated that he met Respondent's father when he [the Respondent] was three years old, and therefore could not provide evidence regarding the father's place of birth."

Who is more likely to have more immediate historical knowledge of a family's actual residence, an adult who knew Jesus Tiznado and his family since he was three, or Jesus's daughter, who denies making any statement indicating Jesus was born in Mexico and more importantly for these purposes was not cognizant of her family history until her father was an adult?

True enough, the burden of proof is on Esteban to come up with the documents proving he meets the criteria for acquired U.S. citizenship but the standard does not require people to overcome trumped up analyses based on secret and uncorroborated so-called evidence.

What Next?
Esteban has a hearing at the Florence Immigration Court scheduled for June 4, 2012.  This is a master calendar hearing, and thus it may be weeks or longer before Esteban's pro bono attorney David Ouimette has an opportunity to review the underlying documents or cross-examine the government experts.

Esteban's arrest a couple of months ago has devastated his family.  According to his sister, he was picked up because the habeas order prohibiting his arrest had expired; when Esteban saw some police, he ran.  And when they saw him running, then they chased him, caught him, and figured out he had been deported.  He's being held in the wing of the Pinal County Jail under contract to ICE. At the very least ICE needs to release him pending a hearing on the merits of his case.

Arizona demonstrably issued Jesus Tiznado a birth certificate. The Mexican authorities demonstrably did not issue Jesus Tiznado a birth certificate.  In light of this evidence, not to mention, the copious documentation of Jesus's residence in the United States for the requisite time periods, the DHS at the very least needs to comply with John Morton's November 19, 2009 memorandum requiring ICE not to detain someone with possibly probative evidence of U.S. citizenship: ""In all case, any uncertainty of whether the evidence is probative of U.S. citizenship should weigh against detention." 

For more on Esteban's case, please go here.

Citizenship To Go

Today's opinion piece in the New York Times provoked e-mail to me I wanted to share:

Dear Professor Stevens,

I completely agree with your article "Citizenship to go".

I've lived most of my adult life in the US, having moved here as a
graduate student in 2001. I bought a house, had a child born here, pay
my taxes, have a retirement plan, etc. All 100% legal. Yet I'm not
even a "permanent resident" yet. I can apply next year, and become a
citizen several years after that. It is quite possible that someone
born in the US or to American parents in 2001 will be able to vote
before I do. Where's the logic in that?

I even get jury duty notices, and each time I have to go to extra
trouble to prove that I'm not eligible to serve. This is always a
painful reminder of my second-class status.

I understand you may get hundreds of letters about your op-ed, so I
don't expect a reply. I just I wanted to get this off my chest. I hope
you don't get a lot of hate mail.

Best,
Ivan  "Temporary visitor" to the US

 Of course Ivan most likely would be a fine juror in his community.  In light of the problems enlisting participation on juries or even voting, this is perhaps more reason to put Ivan's time to good use on a a jury and not fighting government bureaucracy.

From my colleague Jeff Rice in the History Department:

[Y]our column today... reminded me of an interesting anecdote about Thomas Mann.  After becoming an enemy of the Nazi regime he took off to Czechoslavakia and then to England acquiring citizenship along the way.  After that he came to L.A. and took US citizenship and then, when called before HUAC he took off for Switzerland for the remainder of his life (suggesting that he left Germany in the name of freedom and he would leave the US in the name of freedom).  One of his detractors denounced him for  changing citizenship as often as he changed his clothes.  Personally, I always admired Mann for his cosmopolitanism.  

 Here's a link to the book behind the opinion piece.

"Citizenship-In-Question: Evidentiary Challenges"

Below is a link to the conference report for

"Citizenship-In-Question: Evidentiary Challenges for Jus Soli  and Autochthony, from Authenticité to ‘Birtherism’"

Scholars convening at the Boston College Law School April 19 - 21, 2012 presented rich, fascinating papers focused on struggles over ascertaining citizenship claims across regions. Through the above report, the conference organizers, Dan Kanstroom, Benjamin Lawrance, Rachel Rosenbloom, Rogers Smith and I wanted to alert our colleagues to this important work in progress.

Immigration Court Agency, Homeland Security, and Private Guards Sued for Civil Rights Violations

On April 19, 2010 guards followed an unlawful order to remove me from the Atlanta federal building housing the immigration courts.  Documents obtained under the Freedom of Information Act (FOIA) show that in the months following this, supervising employees of the Executive Office of Immigration Review (EOIR) and the Federal Protective Services (FPS) tried to cover up these events, in particular, to disguise the fact that the order to remove me while I was engaged in court observations for findings reported in The Nation magazine and scholarly publications came from the immigration judge William Cassidy, the same individual reported for the first time on this blog as having deported U.S. citizen Mark Lyttle.

On April 18, 2012, I filed a complaint in the United States District Court in the Northern District of Georgia, Atlanta Division charging violations of the First, Fourth, and Fifth Amendments to the United States Constitution (Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics), and False Imprisonment, Assault, and Battery.

Summons were executed and immediately sent to the appropriate agencies for service on Defendants Eric Holder, Attorney General; Juan Osuna, Director, EOIR; Fran Mooney, Assistant Director for the Office of Management Programs, EOIR; MaryBeth Keller, Assistant Chief Immigration Judge, EOIR; Gary Smith, Assistant Chief Immigration Judge, EOIR; William Anthony Cassidy, Immigration Judge (EOIR); Cynthia Long, Atlanta Court Administrator, EOIR; Darren Eugene Summers, FPS; Inspector DOE, FPS; Paragon System, Inc. Guard DOES 1-4; and Paragon Systems, Inc.

The complaint relies on a contemporaneous transcript of a Paragon Security Systems, Inc. guard's call to the FPS Battle Creek Michigan MegaCenter, obtained pursuant to a FOIA request.  That call, and 423 pages of e-mail to and from EOIR public affairs attorney Lauren Alder Reid, shows that the EOIR was closely monitoring my movements among immigration courts nationwide and had convened to discuss "banning" me from hearings following my reporting for articles in The Nation magazine that resulted in a 2011 Project Censored awards for number four out of  the Top 25 Censored Stories in 2010.

In addition to detailing unlawful closures of hearings and cover-ups of this on two occasions by William Cassidy, Cynthia Long, MaryBeth Keller and Gary Smith, all EOIR employees, the complaint details numerous violations of judicial procedures for the purpose of highlighting the unlawful practices that the DOJ was attempting to hide.

According to the complaint:

125.  On April 13, 2010, a desk clerk working at the immigration hearing rooms in the CCA facility at Lumpkin, Georgia sent the following message to court administrator Ray Bethune:
"Subject: Problem...
Ray- That reporter woman is back and being argumentative about being allowed in the Courtroom.  The courtroom is full! 97 detainees.  We are suggesting that she wait until we do that mass removal and then allow her in.  She refuses to take no for an answer.  She is arguing with Sgt Perry also.  Any suggestions on how to handle this?" (EOIR FOIA 2010-12055, p. 315, received January 9, 2012 in response to Plaintiff request of June 3, 2010)
    126.  "Mass removals" are not lawful under EOIR or any other DOJ procedures.  According to the Immigration Judge (hereafter IJ) Benchbook: "[A]ll salient points discussed in the non-detainee setting must be covered in the detainee setting as well. In the detainee setting, it is important to get individualized answers from each respondent to important matters."
    127.  The windowless room in which the 97 people may or may not have heard their names called, and may or may not have heard and understood they were all being ordered removed, at all times relevant to this complaint  had a seating capacity for approximately 24 people. 
    128.  Plaintiff has been physically present in that room.  Based on information and belief, the immigration judge running that hearing was J. Dan Pelletier.  Based on information and belief, it would be impossible for Pelletier, reciting his script from a dais in an Atlanta court room and observing the Lumpkin hearing room via televideo, to have visually discerned individual respondents, much less engage each of them in any meaningful exchange. 
    129.   Mass hearings of any sort are not consistent with judicial procedures.

 The complaint states that the same absence of judicial conduct that harms respondents means that immigration judges may not claim the sovereign immunity from lawsuits available government officials who engage in truly judicial conduct.