US Citizen Mark Lyttle Settles Lawsuit for Deportation, Government Conducts Sham Investigation

 Mark Lyttle at Indian Springs State Park, Georgia, 2011

 I

Mark Daniel Lyttle recently signed the paper work clearing the way for the federal government to cut him a check for $175,000 in exchange for dropping his Federal Tort Claims Act and Bivens lawsuit that for the most part had survived the government's motion to dismiss. Lyttle was born in Rowan County, North Carolina, and deported to Mexico.  The government did lots of things that were unlawful, and then they papered them over with an "investigation into misconduct" coordinated with the government legal team that was claiming no such misconduct existed.

The settlement amount is incommensurate not only with the hardships Lyttle endured, but also with the strength of the lawsuit at that point, as evident in the passion on display in Judge Clay Land's March, 2012  93-page decision castigating ICE and other employees in the deportation branch of the government, including the immigration court judge William Cassidy, for trampling on Lyttle's Constitutional rights.

Why did Lyttle settle for such a relatively small sum? For instance, Ernesto Galarza recently received $25,000 for just three days of detention, a per diem rate of $8,333/day in contrast with the $1,011/day Lyttle received in compensation for weeks in ICE custody and months of stateless migration in Latin America, where he was deported from Mexico as well as Honduras before making his way to the U.S. embassy in Guatemala and then to the Atlanta airport, where the U.S. government again attempted to deport Mr. Lyttle back to Mexico.

It's been more than two years since the lawsuit was filed.  As Lyttle told his attorneys, as well as me, and as poor clients have told attorneys doing this work for decades, "I really need the money."  $175,000 is a lot of money, especially for Lyttle, even after the $10,000 that he will be paying to reimburse some of the costs incurred by the the ACLU and his intrepid attorneys Brian Watt and Michael Johnson at Troutman Sanders. 

In another post I will suggest some hypotheses to explain the variation in these settlements but for now I want to focus on the reports and affidavits about Lyttle's deportation released to me on September 28, 2012 in response to a request I submitted under the Freedom of Information Act (FOIA).  The report is sad evidence of an agency that has a complete lack of integrity.  The problem is partly the agents, most of whom are at best evasive.  But the biggest problem is the cover-up operation being run out of the Immigration and Customs Enforcement (ICE) Office of Professional Responsibility (OPR), which, were there truth-in-labeling, would be called the Office of Professionals Covering Their Asses.  It is one of the strongest arguments I've seen for a constitutional right to an assigned attorney in deportation proceedings, one appointed at government expense if the individual cannot afford one.

What becomes clear in this report is that once Lyttle, who has a long, well-documented record in the criminal databases as a U.S. citizen, indicates he wants to go to Mexico -- initially with his girlfriend, another U.S. citizen -- and so agrees that he is from Mexico and tells the ICE agent at a jail where he is classified as bipolar that he wants her to set it all up, the train has left the station, so  to speak.

When Lyttle tries to straighten this out with specific details of his adoption and U.S. citizenship a few weeks later, the ICE agents fail to follow up properly, but claim otherwise, and they withhold from his ICE arrest report crucial information about his U.S. citizenship appearing in the databases.

It is ironic that the agents make such a big deal about Lyttle not having on his person documents indicating he is a U.S. citizen.   At least there are documents in the federal and state databases indicating Lyttle is a U.S. citizen.  None exist that state he is otherwise.  The only evidence to suggest he is a Mexican citizen is a statement he signed to this effect without understanding its legal meaning, and that he attempted to recant on several occasions before giving up and going along with the government nonsense so he could get out of the Stewart Detention Center and not have to wait months or even years for an appeal, as has been the case for others who chose to stick it out and eventually had their U.S. citizenship recognized while they were in ICE custody.

The report frequently references the recording from Cassidy's televideo hearing in which Lyttle is not heard objecting to being deported, using this to suggest that Lyttle was not challenging his deportation: I have a copy of this recording; it is obvious Cassidy is recording only one portion of the entire hearing.  The investigative report, however, never states that Cassidy is turning the recording on and off, thus leading the reader to believe that the failure to hear Lyttle speak on the recording means Lyttle did not speak at the hearing.  At one point Cassidy actually says to someone who is speaking out against being deported, "we'll speak to him privately," a clear violation of EOIR policy and one for which Cassidy has been rebuked on several previous occasions.  Lyttle told me he brought up his U.S. citizenship with the guard and the guard brought this to Cassidy's attention after the other bits that were recorded, perhaps when this other individual was discussing his unrecorded objections as well. 

Moreover, by that point, Lyttle's arrest report, which Cassidy possessed, indicated Lyttle had sworn he was  a U.S. citizen; immigration judges have an affirmative obligation to explore the possibility of U.S. citizenship with pro se respondents. Silence on this matter is a damning indictment of Cassidy: either there was an exchange and Cassidy failed to record it and then lied by telling folks afterward that it did not occur--I have email in which Cassidy is reported to have gone to considerable lengths to invent stories out of thin cloth about other matters I personally witnessed, so I know he is capable of blatant deceit -- or Cassidy never bothered to read the information that was in Lyttle's file, nor to ascertain whether Lyttle had seen it (he had not)-- all of which are flagrant violations of the law, not to mention his job description.  His bosses at the EOIR of course know all this and so do the respondents and attorneys who appear before him, many of whom have shared with me their incredulity that their government could so blatantly ignore the rule of law by not firing him for his persistent misconduct.

In Their Own Words

The investigation into deportation officer misconduct was triggered on January 20, 2010, when an attorney in the ICE Office of Principal Legal Advisor (OPLA) referenced the administrative complaint Lyttle's attorneys sent to them on a form one must complete before filing a lawsuit under the Federal Torts Claims Act. 

Ten months later...

12/01/2010 - Case agent reviewed the files and has identified the employees that need to be interviewed.  No investigative steps have been taken due to civil litigation.  This file will be held in abeyance; pending the outcome.

 A year later, while the lawsuit was still ongoing, an investigation commenced. Agents were interviewed over three years after the events in question.

Instead of an independent investigation the agency coordinated a bizarre buck-passing exercise in bureaucratese with the attorneys who were defending the government against Lyttle's lawsuit.

12/12/2011 - RAC [Resident Agent in Charge] conversed with DOJ Attorney [] in December 2010.  (202)616[].  Fax (202) 616-4314.  All investigative activity will be coordinated w. [] ongoing Civil/Tort lawsuit.

As a result of an investigation that prioritized avoiding liability for the government and appears to be a way of the Department of Justice figuring out what was going on with their own case before discovery, the investigators failed to follow up on the numerous discrepancies in the agent statements and red flags of actions that were clearly unlawful.  The investigation was initiated following receipt of the administrative complaint and then held in abeyance until AFTER the actual lawsuit was filed. The final report distorts information obtained by their own investigators, and fails to present key evidence.

This report is itself an object study in how law enforcement agencies in the federal government are evading accountability through abusing processes of the very agencies Congress established to serve watchdog functions, leaving the federal courts the only venue for redress.  On the one hand, the Department of Justice is, rightly, going after local sheriffs and police, e.g., Maricopa County and East Haven, but on the other hand, federal agents are colluding in misconduct in their own backyard.

To their credit, the investigators did interview  the key players who signed paperwork to deport Lyttle in North Carolina and Georgia in 2008, and in Texas and Atlanta following his efforts to return in 2009.   Also to their credit, the government released this to me.  One of the problems with the litigation was that Lyttle's attorneys never were able to pursue discovery.  If it were not for the Freedom of Information Act, most of the important events associated with Lyttle's deportation and other government misconduct would remain secret.

I'll be going over the report in a few posts, beginning with Lyttle's first encounter with an ICE agent, in the Neuse Correctional Institution, in Goldsboro, North Carolina.  Nothing in these reports is inconsistent with the information I've posted previously -- based on the file I received and reviewed with Judy Rabinovitz at the ACLU in 2009 -- but the agents' admissions and inconsistencies are interesting nonetheless.

NORTH CAROLINA
From the ICE deportation officer Deshanta Faucette, who interviewed Lyttle at the Neuse jail where he was finishing up a sentence for violating probation after he'd been released following a conviction and serving a 100 day prison sentence for Assault on a Female.

Q.  Where did you encounter LYTTLE and what was your role? 
A.  I made the initial contact with Mr. Lyttle at Neuse Correctional Facility[in Septebmber 2008].   I was a Deportation Officer for Immigration and Customs Enforcement working the CAP [Criminal Alien Program] program for the Raleigh, NC office at that time.  I had several inmates to interview that particular day -- I believe about 12-14 and I went out to the area where they were all waiting.  I asked who spoke English and the ones that raised their hands were first on my list to be interviewed.  This was easier for me because my Spanish is not so good and I usually would read the Spanish translations and this took a little longer...

So now we know that people are being deported by someone who cannot understand what she is saying, much less what they might be saying in response.

Faucette continues:

During the interview Mr. Lyttle asked me if his girlfriend could come with him to Mexico.  I asked him if his girlfriend was illegal as well and was she incarcerated.  He replied, "No" to both questions.  I told him that I could not deport her but she could obtain a passport and visit him at leisure.  He also asked me about obtaining his mail once he got to Mexico.  I told him that as long as he left a forwarding address we would be able to forward his mail to him.  He seemed eager to be deported and wanted to get the process over as quickly as possible. 

Much of the interview centers on Lyttle's name, since it becomes clear that the interviewers are thinking Faucette should have realized that since she had listed as the father "Deceased Thomas Lyttle" and the mother as "Jennie Lyttle (Kentucky)" it seemed strange to imagine that Mark Lyttle's true name was "Jose Thomas."  Faucette admits that when Lyttle said his mother was named Lyttle and living in Kentucky and that Lyttle had been adopted that "maybe he could be a U.S. Citizen so I asked a few more questions. I asked did he have a birth certificate and he said no because he came here at age 3 illegally.  He also said he wasn't in contact with his family and he had no papers."

Except for the part about being born in Mexico, the rest of this is true, and for various reasons Lyttle also has believed he had a father who was Mexican.  In 2007 Lyttle's mother had dropped him off at group home and then settled in Kentucky; as Lyttle moved in and out of different homes and jail, they lost track of each other.  Lyttle's mother tried to find him but was foiled and she told me that she was concerned that Mark would feel abandoned.

The scenario here may seem anomalous, but the jails are filled with people like Lyttle--poor, unrooted, U.S. citizens who do not understand citizenship law, their own biographies, or the meaning of deportation-- and ICE's official position in this report is that it's okay to deport them.  We know these folks are turning up by thousands in our immigration courts because the EOIR is now releasing data stating that 1% of adjournments in 2008 and 2010 were because individuals were asserting U.S. citizenship.

Adjournments are not terminations.  The EOIR previously denied it maintained data on cases terminated due to U.S. citizenship, but I have noted a code for this and will be requesting this under the FOIA.  (I thought that the EOIR, which was coding for "country of origin" in its Statistical Yearbook, should have the data indicating the United States as the "country of origin" for some number of people who appeared in immigration courts and whose deportation orders were terminated on these grounds, as eventually occurred in the case of Lyttle.  EOIR public affairs officer Elaine Komis informed me that the EOIR relied on the DHS for this data, in keeping with its reliance on this agency's representation for other matters as well.  I took her at her word but no longer believe this is the case.  I do not believe Komis realized that she was being given inaccurate information to pass along to me but simply repeated what she had been told.)

 Another important point: Faucette misstated the policy on forwarding mail.

Here is the number of all the letters I've sent to people in detention center who received them after they were deported: 0.  The policy is "return to sender."

This was actually an important deception: if Lyttle had been told that ICE would not forward his government disability check to him in Reynosa, and that he would be entirely stripped of these benefits if he conceded alienage, Lyttle never would have signed those papers.

Q.  Please specify the form(s) used to document immigration status or citizenship.
A.  To document a person's immigration statuts we use an I213 and a sworn statement.  To determine citizenship we would use a birth certificate.  Those are the most accurate forms.

 Q.  What is the procedure for ERO employees when a United States Citizen is encountered? 
A.  If a United States Citizen is encountered, we need for the inmate to prove it.  It is not enough for them to simply state it.  We would need to ask questions--where were you born, what hospital, what city?  What school did you go to?  Several questions and ask for proof.  I would also notify my supervisor.

The procedures Faucette describes are NOT the standard of proof for anyone who is born in the United States--the burden of proof in that case is on the government to prove alienage, and not as Faucette maintains, the opposite -- and yet no one analyzing this information points this out much less holds her culpable.  Moreover, these are not the legal procedures, even in 2008, for investigating assertions of U.S. citizenship, even for those who are foreign-born, as she assumed was the case for Lyttle.  (These are not the standards in the so-called Hayes Memorandumr; this requires the agency to affirmatively to investigate these claims, "“investigation may include vital records searches, family interviews, and other appropriate investigative measures.”  This is different from saying "we need the inmate to prove it.")

Even if Lyttle's story of being born in Mexico is taken at face value, the fact that he has been adopted by two U.S. citizens and his prison record states in 8 places he has U.S. citizenship also should have flagged his case for her attention.

The investigators address this.

Q.  Did you run CIS records, criminal history checks, NCIC records before interviewing Lyttle?  If not, why?
A.  I don't believe that I ran any checks before I went out to interview Mr. Lyttle.  That was something that was normally done but for some reason, I did not do the preliminary work.  This was not my normal assignment.  I believe I was covering for someone.  I was a fillin. 

 On the matter of the adoption,

 Q.  Did you ask Lyttle if he had any adoption paperwork?
A.  Yes, I asked him if he had adoption paperwork...He just said no he did not and that he was no longer in contact with him family.

 So that's how Lyttle, a cognitively disabled, bipolar 30 year-old who had lived since the age of 9 in various institutionalized living facilities convinced an ICE agent to help him out in getting over to Mexico for what he told me might be something like a "field trip," despite the fact, she said, "He used one name and signed another...He looked like he could have been American but he was insisting he was Mexican."
 
Faucette is now working in ICE headquarters.  It is a shame that she was never deposed by Lyttle's attorneys. 

The supervisor of the CAP office at Cary, North Carolina --the unmarked subfield office in an office park adjacent an Oxford University printing press -- was also interviewed.

16.  Did you ever observe a fingerprint card for LYTTLE completed by DO [] [redacted but probably Faucette] on September 2, 2008?  If so, when?

The card was most likely a document in the alien file when I reviewed it, however, I don't specifically remember viewing it.

17.  Based on the completed fingerprint card for LYTTLE a/k/a [] [the agency is redacting "Jose Thomas," a fictitious name] it reflected a handwritten notation "Dropped - United States Citizen" on the back of the fingerprint card, under criminal charge disposition.  Do you know the meaning of the aforementioned notation?

No - never saw that before.

I will return to this notation in a subsequent post.  Everyone is asked about this and no one admits to either writing it or seeing it.

18.  According to the documentation in the alien file, LYTTLE claimed that he changed his name in South Carolina.  What steps did you take to verify LYTTLE's claim regarding his name change?

I have never seen such document and none of that information was available to my group while we handled the case.

Was there any indication at the time your office in Raleigh encountered LYTTLE, that he could have been a United States Citizen?  Why not?

None...My office had no knowledge of his family members or the fact that he had been adopted. 

Faucette is part of the Cary, CAP group and her affidavit shows not only that this information about the name change and adoption was available to her, but also that she wrote it down.

(The investigators, working with the attorneys who are defending these same agents again Lyttle's lawsuit, do not follow up on this, or any other discrepancy.)
After this September 2, 2008 interview, when Lyttle announced his great accomplishment of arranging for his Mexican field trip to his cellmates, they discouraged him, "Dude, you don't speak any Spanish," Lyttle said.  And an ICE deportation officer confirms that when he first arrived at the Stewart Detention Center in Georgia he was telling the guards he was a U.S. citizen and two days later he signed a sworn statement to this effect, stating as well, and accurately, that he was born in Rowan County, North Carolina. 

TO BE CONTINUED

Also upcoming:
-update on Esteban Tiznado, govt. denied his valid claim to US citizenship, never revealed it had evidence refuting its claim his father was born in Mexico.  Esteban locked up since May after IJ keeps postponing hearing over objections of Tiznado and his attorney David Ouimette.
-update on Stevens v. Holder, William Cassidy et al.;
-immigration judge in Florida unlawfully closing hearings;
-interview with Ernesto Galarza's attorney, Jonathan Feinberg
-leaked email on "Operation Secure Streets," predecessor to "Secure Communities"