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U.S. Government STILL Capturing Its Own Citizens and Holding them as Aliens
Case Clogs Crowded Immigration Court Docket
Immigration and Customs Enforcement Wastes Taxpayer Money,
Ignores Immigration Judge Request to Investigate and Drop Case Based on Lack of Evidence
Deportation Research Clinic Intervention Helps Free Another U.S. Citizen
On January 5, 2016, Lorenzo Palma, with a lawyer finally by his side (Nashville-based civil rights attorney Andrew Free), won his release from the Houston CCA immigration jail. Ever since immigration judge Saul Greenstein flagged the possibility that Mr. Palma, 39, unbeknownst to himself, might have acquired U.S. citizenship from his mother, who, born in Mexico in 1948, unbeknownst to herself, might have acquired it from her father, the family had been on a scavenger hunt to find evidence the government already had to prove Lorenzo's maternal grandfather Lazaro Palma was born in the United States and resided there 10 years, five of which were after the age of 16.
The search required the location of decades-old records, ranging from Lazaro Palma's 1914 Texas birth certificate to a 1950 manifest to various other documents and affidavits, all of which cost the family time, worry, and money.
Lorenzo's is a case study in the different outcomes when respondents are subject to either the "Goofus"-s or "Gallant"-s who preside over immigration courts, and the need for everyone who is in ICE custody to be assigned a government-funded attorney with expertise in immigration, citizenship, and civil rights law.
(Goofus and Gallant are children's book characters who illustrate situational choices that are either infantile, intemperate, and injudicious, or mature, thoughtful, and judicious.)
"Goofus and Gallant - October 1980" by Source (WP:NFCC#4). Licensed under Fair use via Wikipedia - https://en.wikipedia.org/wiki/File:Goofus_and_Gallant_-_October_1980.jpg#/media/File:Goofus_and_Gallant_-_October_1980.jpg
IJ Goofus rushes through cases, ignoring the possibility respondents might be U.S. citizens.
IJ Gallant makes careful inquiries of respondents to ascertain if they may be U.S. citizens.
Although the immigration court benchbook and various press releases from the Executive Office of Immigration Review suggest that immigration judges conduct inquiries of pro se respondents to evaluate the possibility of U.S. citizenship, Lorenzo, like hundreds before and after him, had the misfortune of encountering Goofus Richard Walton, who has a cavalier attitude toward the respondents before him and outside the presence of observers fails to inquire of the U.S. citizenship status of respondents, which requires as well inquiries about the citizenship status of their parents and grandparents.
(On July 30, 2015 Walton threw a bit of a temper tantrum in talking over and ignoring an attorney's arguments to have a bond hearing. The attorney and public were denied a reasoned response to her detailed
legal analysis as to the custody implications of the government not meeting its burden of proof; even if Walton disagreed, the public deserved the adjudicator's reasoned analyses
of the case law she cited, not just a denial by fiat. The attorney had flown out
from Los Angeles and abided by other requirements he imposed. I was appalled by what I observed in that hearing and others Walton conducted, and requested a copy of this recording under the FOIA, which does not require a privacy waiver for the release of public hearing recordings, just written records. You can listen to him rant here. 1 of 2, 2 of 2.
The deportation order was terminated, confirming the government had a weak case, as the lawyer advised Walton; I lost touch with her and do not know further details.)
Lorenzo's travails began a few months before he was supposed to be paroled from the prison at Huntsville, Texas. Per standard operating procedure, in mid-February, 2014, an ICE agent impersonated a legal worker and spoke with Palma on the pretext of "trying to figure out your case" for parole purposes, Palma told me. From this interview she obtained information the government used for its arrest report and Notice to Appear (NTA). Until Lorenzo and I were reviewing his documents in late July, 2015, it never occurred to Lorenzo that she was with ICE, "No one had ICE shirts; they spoke with a whole group of us," he told me.
In June, 2014, still at the Huntsville prison a month after he was supposed to be released on parole, he appeared in a televideo hearing before adjudicator Walton, who went through the motions of informing Lorenzo of a list of overburdened pro bono attorneys who rarely provide individual representation. Walton never asked questions that would ascertain whether Lorenzo might be a U.S. citizen, a matter of some complexity.
Lorenzo wrote every attorney and organization on the list. No one responded.
Meanwhile, on September 22, 2014 IJ Greenstein took over the case. At their first encounter, he asked about the citizenship status of Lorenzo's mother and grandfather, and immediately ascertained that Lorenzo's genealogy was consistent with a potential claim of U.S. citizenship. From that first hearing he repeatedly cajoled ICE agents to investigate, and challenged the government attorney for claiming that Lorenzo had produced no probative documents when it turned out that he had -- after persistent questioning Greenstein discerned the ICE attorney did indeed possess a copy of Lazaro's Texas birth certificate and that ICE had failed to follow up on this with further research.
You can listen here--note IJ Greenstein's attentive patience and the government attorney John McPhail's (sp?) indifference to the fact that his own carelessness may mean a U.S. citizen is being falsely imprisoned.
Over the course of numerous hearings one discerns IJ Greenstein doing work that should be done by the government or an attorney, and only as a last resort by an immigration judge. At a hearing in March, 2015, exasperated by ICE failing to heed his request to interview Lorenzo's mother, IJ Greenstein places a call to her himself and, on the record, waits while she pulls off the freeway before finally figuring out the narrative but not proof of hers and Lorenzo's U.S. citizenship.
Toward the end of their telephone conversation, Rita, who up until that point had been addressing IJ Greenstein's questions through the interpreter as she might have been discussing old family affairs with an inquisitive neighbor, realizes exactly what is happening and is overwhelmed. IJ Greenstein has made no promises and is stern about Lorenzo's burden of proof; but IJ Greenstein's tenacity in pursuing the truth moves Rita to tears. The interpreter translates, "It is very hard to find a judge like you, very considerate, very hard to find anywhere a judge like you."
At the behest of IJ Greenstein, YMCA attorney Tatiana Obando pushed Lorenzo's elderly stroke-afflicted mother to fax Ms. Obando relevant papers that she in turn submitted to the court; but Ms. Obando lacked the resources to do her own investigations or to appear in court on Lorenzo's behalf.
When, by sheer coincidence, I first met Lorenzo while observing hearings for the detained docket on July 30, 2015 Lorenzo told IJ Greenstein that he was giving up and on the verge of agreeing to sign out and be deported to Mexico, a country where he had never resided and in which he was born only because his mother could not afford Texas hospitals. Even more poignant: Rita, who acquired U.S. citizenship from her father Lazaro, remained in Mexico and was raised by her grandmother, and not her parents in Texas, because, she told me, "I didn't have papers."
The rest of the story behind Lorenzo's release is one of a little organizational assistance on my part and Attorney Free's hard work, time, and dedication to giving Lorenzo the attorney everyone in deportation proceedings needs. (Free is an attorney who collaborates with the Deportation Research Clinic, of which I am the director; Free represents the Clinic in our FOIA litigation and has sued the government for detaining U.S. citizens encountered in Clinic research.)
Just after the ruling in his favor, Lorenzo called me from Houston CCA, elated and also aware of how easily it could have gone the other way, "I was praying, please God, don't let me go in there by myself." Lorenzo had spoken with attorney Free the week before, but wasn't sure his family could put together the funds for Mr. Free's plane trip. Lorenzo was overwhelmed with gratitude when on the morning of January 5, he first laid eyes on Mr. Free, a solo practitioner who had cobbled together the cash he received from Lorenzo's common-law wife, Jacqueline, with his own frequent flier points and somehow made it for the hearing.
Confronted in court for the first time by a lawyer, the government conceded it had not met its burden of proof and waived appeal. Lorenzo was released hours later and is with his mother and catching up with his brother and sister nearby; Jacqueline recently visited and is back at her job in Colorado. Lorenzo will finish up his parole in Texas and then return to their home near Denver in August.
Legal Analysis
The fact-pattern above is fairly typical. It has two implications: First, it further underscores the need for everyone in removal proceedings to have a government-funded attorney, to guarantee no further violations of the well-recognized due process rights U.S. citizens have not to be deported as aliens, and to ensure the legal rights of everyone else in deportation proceedings, as the Second District Court judge pointed out this fall in an order responding to the National Immigrant Justice Center Watson civil complaint.
In addition, this case raises tough questions about the reasoning behind the recent bizarre Ninth Circuit decision deferring factual findings of U.S. citizenship to a single district court judge. I will discuss this in my next post, updating the filings by the Cardozo Immigration Justice Clinic on behalf of U.S. citizen Roberto Dominguez, but it is obvious that cases with so much at stake and of such complexity -- in which the government is the main source of the evidence on which the respondent must rely for her rights -- allowing a single individual to make such decisions cedes too much power to the government. This deference to the fact-finding of a single judge goes directly to the logic of the Sixth Amendment: a right to trial by a jury is not just protection against an authoritarian government, but also an assertion that single decision-makers should not be granted unilateral authority. Especially because those in deportation proceedings at present do not have a right to a government-paid attorney, they have an even greater claim on the government's institutions of judicial review.
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