Houston DHS Trial Attorneys Assert Criminal Convictions as Grounds to Hold Respondent, Ignoring Probative Evidence of US Citizenship

From Board of Immigration Appeals on Robinson Martinez, February 12, 2014, pertaining to his claims of automatically acquiring US citizenship at birth

DHS is agreeing to a change of venue and to move Robinson Martinez, who has been in ICE custody for over two years, to Port Isabel, so that it will not be such a burden for his family to come and testify.  But DHS is opposing Robinson's release.   In law and written policy, the DHS takes the position that it is unlawful to hold anyone with "probative evidence" of U.S. citizenship in custody under immigration laws.  But behind the closed doors of immigration courts they say whatever is necessary to avoid releasing people, relying heavily on innuendo about criminal convictions to obscure the specific legal question about citizenship.  

In a few hours in Houston, Texas, Robinson Martinez will take a brief absence from his expensive if not exactly swanky $120/night lodgings in the Correction Corporation of America's popular Houston facility to appear in a conveniently located adjacent immigration court.

Robinson's mission is to have his government finally recognize his U.S. citizenship and release him, something he's been dogging them to do since March, 2012, when he was transferred from a Texas prison to the CCA lockup in March, 2012.

But April 3, 2014 is different.  Today he will enter because last month's five-page single-spaced decision by the Board of Immigration Appeals told the Department of Homeland Security and immigration judge that they were "persuaded by the respondent's arguments" and remanding.  "The respondent has presented new evidence with his motion to remand which should be assessed by the Immigration Judge..." 

Robinson seems well on the way to being entirely vindicated: if he can prove that his grandfather conveyed US citizenship to Robinson's mother by proving his grandfather really was in the United States for two years after the age of 14 and before Robinson's mother was born -- he was, and signed a very detailed affidavit about living with his mother in the family home in Mercedes, Texas.  The BIA reasoning and remand suggest that the government made a grave mistake when it tried deporting him, and an even graver one in not allowing his freedom while he was trying to prove this.  

The BIA is saying it is persuaded by Robinson's legal argument and that he has new evidence that is important enough that an immigration judge needs to review it.  Robinson has his grandfather's Certificate of Citizenship and other documentation proving that his grandfather was a U.S. citizen at birth, as well as copious other affidavits, birth certificates, school records, adoption records, and much more that provide numerous overlapping verification of the facts the BIA said would prove his US citizenship.  

The immigration judge is not going to decide on the merits of the case today but the DHS can determine Robinson's release, and the immigration judge also can weigh in on this.   The Morton Memorandum on this point is clear:  ""In all case, any uncertainty of whether the evidence is probative of U.S. citizenship should weigh against detention."  Although directed to the DHS, it provides a statement about the law that should be taken into account by immigration judges in their bond determinations as well.  

The law against holding US citizens in custody under immigration laws is clear: it is never allowed, with no exceptions for criminal allegations, even for Ted Bundy.  Therefore, the DHS analysis of Robinson's criminal history -- which is itself a subject of dispute -- is completely irrelevant.  (The logic for this is fairly straightforward: if someone has either been charged or convicted, then criminal proceedings take care of this; the law for mandatory detention is for criminal "aliens" and not those who have persuaded the BIA they may well be US citizens.

Listen here as adjudicator Howard Rose on May 18, 2011 at the Houston Detention Facility screams at then pro se Robinson, who, over the televideo, is trying to explain he is a U.S. citizen and therefore should not be in deportation proceedings.   At one point he says he doesn't understand the proceedings and Rose says, "I don't care what you understand!" 

And listen here, where Rose at another hearing several months later is talking over Robinson about the rules of citizenship based on a fact-pattern that has nothing to do with the evidence Robinson was trying to present. Robinson's grandfather is not a "naturalized citizen," as Rose is insisting, but himself acquired U.S. citizenship at birth and had a Certificate of Citizenship with the AA on the top right hand corner that proves this. (Certificates for those who naturalize only have one A.)  

Above is what a Certificate of Citizenship looks like for someone considered a U.S. citizen at birth:

And this above is from the NATURALIZATION certificate of Robinson's mother

Both of these images are from the certificates in the file Howard Rose was looking at when began yelling Robinson.

Robinson's case has been heard by three EOIR adjudicators, two of whom have since resigned (Howard Rose and Jimmie Benton.)  They made a couple of poor decisions on which Immigration Judge Saul Greenstein relied and that seem plain wrong.   Not just that, Benton and especially Rose berated and insulted Robinson, including cutting him off and calling him "insolent" when Robinson, pro se, tried to explain the citizenship law that applied to his case.

Another point Robinson claimed in his appeal is about prejudgment, not only on the claim of his US citizenship but also the failure of the immigration judges to take into account the "mitigation exception" "because the information in the indictment does not allege any amount of drugs" (BIA 02/12/2014). As it turns out, the conviction record also does not state an amount.  

Over the next few days I'll be posting on how an ICE agent lied on Robinson's I-213 (arrest report); the abuse he and the rule of law endured at the hands of the immigration courts and ICE attorneys; and a factual record consistent with his assertion that he indeed is a U.S. citizen.

Of special concern is that on the first recording for 5/15/12 there is a reference to ICE sharing its legal analysis with Rose --  the ICE trial attorney (sounds like McPhail) says someone in his office is writing up a memorandum and he volunteers to show it, redacted, to the IJ.  However, there is no copy of this in the record.  This would seem to be illegal.  If the DHS wants to keep its internal briefings to themselves that's one thing, but to only show it to the immigration judge and not the opposing party is illegal and one of a littany of basic civil rights violations Robinson is now enduring.