ICE Tricks Sheriffs into Kidnapping U.S. Citizens, Bogus Immunity Claims

Source of image 

Last week a U.S. citizen born in Philadelphia filed a lawsuit after a Florida sheriff took him into custody under immigration laws.  (No law enforcement entity in the country has jurisdication over U.S. citizens under immigration laws, a point that ICE itself has repeatedly avowed.)

The sheriff is claiming that the agreement he has with Immigration and Customs Enforcement -- to earn a $50 bounty for each person turned over to ICE -- immunizes him from any litigation.  Instead, though, the payments might be grounds for charging the sheriff with criminal kidnapping.

The ICE announcement of the new partnerships acknowledges past litigation had made counties reluctant to hold people on immigration detainers, insofar as courts have found that these do not alone provide "probable cause" for an arrest.

ICE explains that the new agreement should assuage county concerns on this score:

Recognizing these challenges, the National Sheriffs’ Association (NSA) and the Major County Sheriffs of America (MCSA) worked with ICE to develop a new process to clarify that aliens held by these jurisdictions are held under the color of federal authority, thereby affording local law enforcement liability protection from potential litigation as a result of faithfully executing their public safety duties.

 The ACLU and other civil rights organizations vigorously dispute this. 

Journalists covering this are understandably confused.  

Here's the quick version of the big picture:

1)  Congress in 1996 voted to amend the law controlling immigration detainers.  The amendment was Sec. 133 in the 1996 bill, and it was to section 237 in the previous bill, and so called 237 (g).

The text of the 1996 bill is now in the U.S. Code as 8 U.S.C. 1357.    

2)   The dispute is about this language (from the 1996 bill) and promises based on it:  

(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.

3)  The problem for Monroe County and others operating under these agreements are two-fold:

    a)  Nothing in this language exempts anyone in law enforcement from the "probable cause" threshold for taking someone into physical custody.  If the government lacks probable cause, especially if the person is a U.S. citizen, then holding the person in custody is false imprisonment or even kidnapping.  There is no Federal authority for doing this, and thus there is no basis on which a local sheriff would be able to prevail in asserting they were acting on behalf of ICE.  

For the most part, litigation has been civil, though under Obama, the DOJ did successfully criminally prosecute two East Haven police officers.  At some point a prosecutor who believes in the rule of law will prosecute for this, as did prosecutors in the 1850s when they brought charges against U.S. marshals or slave agents who kidnapped people accused of being escaped slaves.

Under Florida law: (1)(a)The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage...

ICE is giving the county sheriffs a reward of $50 for holding Mr. Brown after his April 26, 2018 court hearing against his will and without lawful authority.  Discovery presumably would prove that the cash incentives were implemented because ICE otherwise was having a problem with enlisting the cooperation of the sheriffs.

  b)  The claims of ICE officials asserting the agreements indemnify the sheriffs are not legally enforceable.  Just because someone with a government title, say, "President of the United States," puts something on a web site, or in an agreement with a local county, that does not make that agreement binding on the federal government. No one in the government can supersede the Fourth Amendment, period.    

4)  The National Sheriff Association and the sheriffs in Florida seem to have indulged in some magical thinking to the contrary.

5)  The reason that ICE is doing this is that it continues to have problems with buy-in to the original 287 (g) program.  A 2018 budget request indicated only 31 counties were participating.  The 2019 budget request says the number has gone up to 60 and that ICE anticipates an additional 23 MOAs, but that's still a miniscule fraction of the 3100 counties nation-wide.  The new BOAs are supposed to change this.

At present ICE lists 78 counties as having signed the MOAs, about 2.5% of all eligible counties, and in areas that represent an even smaller jurisdiction over the U.S. population, because they are largely in areas sparsely populated.  97.5% of U.S. counties are not participating because of a mix of anti-deportation sentiment and litigation risk aversion.  

  

The American Civil Liberties Union has a terrific FAQ about the "Basic Ordering Agreements" ICE rolled out earlier this year in Florida.  And here's the complaint against Monroe County filed on behalf of Peter Sean Brown, and the story behind it.

The National Immigrant Justice Center, Southern Poverty Law Center, American Immigration Council, the American Immigration Lawyer Association, and the National Immigration Law Center also partnered on a March, 2018 report detailing the case law at odds with ICE's claims that its local partnerships indemnify the counties. 

ICE acknowledges rogue operations in which agents go undercover to trick immigrants into providing location information to assist with the arrests of family members or co-workers.  Here it seems the rogue operation is to trick sheriffs into believing false imprisonment possible without consequences.  

"Coercivic," aka CCA, Sued for Exploiting People Held during Immigration Proceedings in New Mexico

"CoreCivic profits from its operation of Cibola by relying heavily on a captive workforce of civilly detained immigrants, including Plaintiffs, to perform labor necessary to keep Cibola operational and provide the services it is obligated to provide under the terms of its contract with Cibola County, New Mexico." 

 From lawsuit filed Wednesday, November 14, 2018.

This is the first lawsuit against a private facility on behalf of people held under immigration laws using the Fair Labor Standards Act.  It also alleges violations of New Mexico's minimum wage law and its common law prohibiting unjust enrichment.

Please go here for more information, including on how to join the class.

And here for recent Ninth Circuit petition and replies, including 92-page declaration of Plaintiff attorney. (Ninth Circuit recently denied GEO's petition to review federal district court green-lighting of cases against the Tacoma facility.)

The United States of Prisons?

Btw, is the graphic design shop "Coercivic" hired chuckling over how they branded the United States (flag) as a prison?  Or is this seemingly astute parody only accidentally illuminating the control this heinous industry has over the U.S. Congress and local politicians?

GEO Loses Another Round in Effort to Defend Slaving Wages, Ninth Circuit Motions Here

Workers Paid $1/Day at Tacoma Facility, from article pointing out Gates Foundation GEO investments

The Ninth Circuit Appellate Court yesterday denied GEO's petition to appeal Judge Bryan's class certification of the lawsuit charging GEO with violating Washington's minimum wage laws as well as laws against forced labor and unjust enrichment.  Here are some of the key appellate pleadings in the case going forward with discovery against the GEO facility in Tacoma, Washington:

1) GEO's Petition to the Ninth Circuit (August 2018)

2)  Plaintiff's Answer (September 2018)

3)  Plaintiff Attorney Declaration (September 2018)

4)) Defense Reply (September 2018)

The attorneys for the Plaintiffs are brilliant and are slaying Goliath.   

Here's a short April 2018 op-ed in the New York Times with a quick overview.

For more information on the cases, media coverage, and the law review article explaining the basis for these lawsuits, please go to the Deportation Research Clinic sources page and also the Deportation Research Clinic home page.  

Can the Commander in Chief Use Military Funds to (Falsely?) Imprison Alleged Noncitizens and Asylum-Seekers?

Source: PBS, October 30, 2018

I just listened to Trump's plan for holding noncitizens in what sound like military bases while they wait for their immigration court dates.  He claimed that lack of space is the only reason people now are being released prior to their scheduled court dates and seemed to relish the likelihood that the harsh conditions of confinement will discourage people from exercising their rights to claim asylum (or prove lawful residence or U.S. citizenship).

The idea seems to be that the government can avoid  the expenses of prolonged detention by throwing people into military camps. 

(President Obama, remember when your party controlled both houses of Congress and your DHS turned down the petition to enact regulations for people in custody under immigration laws, claiming the process would be time-consuming and expensive?  Okay for prisons to have to follow regulations but not facilities holding U.S. citizens in ICE custody? And now martial law is okay?)

Here is an article from June discussing the options considered.

The legal authority to do this seems unclear. The photo of one facility was released on October 30. 2018 by the Department of Heath  and Human Services, but the facility was actually being paid for by the Army.

It appears that Air Force and Army also may be queuing up some bids and proposals.  If you're a journalist interested in poking around, go to https://www.fbo.gov and look for contracts with the NAICS Code 236220 -- Commercial and Institutional Building Construction.

There are a few that seem plausible.  One that especially caught my attention is one that was posted on October 10 with an October 30 deadline for firms expressing an interest.

This office intends to solicit offers for SABER (Simplified Acquisition of Base Engineer Requirements) execution of multi trade real property maintenance and repair of military facilities at Joint Base San Antonio, Texas.  Delivery Orders will be issued under the general contract to include a broad range of work in a variety of trades, including but not limited to site work, roadway construction and repair, drainage, utilities, electrical (interior and exterior distribution), construction of building facilities, renovation of existing building facilities, structural repairs, roofing, plumbing, HVAC, controls painting, asbestos and lead based paint abatement, demolition, and installation or removal of large equipment such as boilers, chillers, etc.  Estimated contract ceiling amount is $50M.  Up to 8 contracts will be awarded.  Duration of each contract will be 5 years.

 Here's another one, at Lackland AFB.   Not only is this an unusual turnaround time for bids but the archiving time frame also is quite short and the project public description seem inconsistent with the budget and other details.

Does the Air Force or Army have authority to use its appropriations to build structures for locking up noncitizens seeking a review of their asylum or other applications for admission?  What about people who are U.S. citizens or have other legal status and are put into custody under immigration laws nonetheless?  Are the authorizations for these speedy bids proper and in the Appropriations Act?  Is Trump calling the folks in the caravan an "invasion" part of his effort to invoke his authority as Commander of Chief to avoid legal challenges to unauthorized expenditures?

Open Door Policy at Retail Stores Means Mobs, not Jobs, Time to Close the Free Movement Loophole in U.S. Commerce

"Black Friday" Shopping Mob

For years I've been biting my tongue, aware that my views on this subject would be unpopular among my friends in the 21st century, especially anyone in the land of the fee and the home of the sale, a country whose iconic Apple is a beacon calling forth the wired, the bored, the befuddled bad-asses yearning to be Jay-Z.  But commentary over the last few days on the folks in the caravan has finally liberated me to speak my truth and support Laura Ingraham in her campaign to end the ridiculous open door policies of our country's retail outlets.

Today anyone can enter a shopping store.  ANY ONE!  I don't think people understand just how easy it is, and how many people are entering these stores.  The media elite don't want you to know the exact numbers but it's in the billions.  In fact, each year hundreds of millions, okay, gazillions, go in and out of stores.  They buy things, they sell things, often if they do not really need them.  (Sometimes they lie and will say that they need something but they don't; they call it "retail therapy," but obviously they're coached to say this.  The truth is they really just want to earn money and then spend it.)

Look at how unattractive they are.  And how unruly.  All that pushing, overpowering even security guards.  And there, a child!  What kind of parents would bring their children on such an excursion?  (Also, we've heard rumors that the goblins are among them.  Just bring your cameras to the center and look around.)

Clearly we need to do something about this and stop people from entering stores without inspection.  That doesn't mean everyone entering a store is a criminal, but come on! 

Radio talk show host Laura Ingraham totally gets it.  "Not everybody is going to come into the United States and commit a crime.  I'm well aware of that, as are most Americans."  Right, we are well aware that most people who enter a store aren't going to shoplift.  But if we don't regulate their entrance then we're doomed.   Like Ingraham says, "if you lose control of who comes into your country, for whatever reason, then we [sic] lose it all.   Why is that the case?  Because without order, there is no security.  Without security, our freedoms begin to erode."

You listening Trader Joe's?  You better, because if you don't start checking people's identity cards at the entrance, you're going to need guard towers and machine guns once they're in.

"How many of these Hollywood do-gooders or high-tech billionaires or liberal politicians....would respond to, let's say it's a hundred people surrounding your gates, climbing onto your gates, dropping onto your property, how many of them would open their doors and say, wanna use the bathroom?"
  

"Jobs or mobs?"

Doh, jobs! And Ingraham's right, come to think of it.  That do-gooder liberal Howard Schulz has never once let me use his bathroom, and I'm a U.S. citizen.  (Though to be fair, the Starbucks outlets he owns let me use them all the time without being invited, or even buying coffee.)   

I'm still silently cheering Ingraham on as I listen to the podcast while waiting in line to pay for my Campari from Milan, Spanish olive oil, and San Francisco sourdough, grateful to her for raising my awareness of the danger of my present situation.  I am in an unpoliced open space.  There are dozens of other shoppers with their carts.   At any second they could cut in front of me.  In fact, they could all crowd together and block my access to the clerk. 

I've shopped there countless times and this revelation of human darkness has never come to pass.  But Ingraham's a smart lady and now that I've encountered her analysis, I think she makes a point. I look around, aware for the first time of the precarity of my situation, and the ignorant complacency of the other shoppers.  Does the woman in the blue parka live nearby?  Or is she day labor at Crate and Barrel, picking up some food to prepare for her family in the suburbs?

Also, what the hell are all these people doing, taking advantage of the open shopping policy?  Don't they know that they should be at their jobs?   (I know, some pointy-head academician will whine about how open labor markets are good for the economy and mobs of shoppers or potential employees are good for jobs, that the clerks at Trader Joe's need customers so they can go form a mob during the holiday sales, say at Crate and Barrel.  "There shall be open borders."  That's what the Wall Street Journal editorial board proposed in 1984 as the next amendment to the U.S. Constitution.  The folks who came up with that probably also thought industry contributed to global warming and preferred peace to war.)

"They broke into Mexico.  That's breaking and entering!" Ingraham shouts, self-energized by her own legal acumen. Anyone listening to her genius analysis knows she could go so much further.

Someone needs to flag the folks who run Trader Joe's and break it down.  Sure, the United States citizens made gobs of money by encouraging guest workers and allowing people to come in and use the bathroom, but there's more to economic viability than private property laws conducive to a functioning labor market and a secure business environment making possible surplus to reinvest.  Don't the owners of Trader Joe's realize that all their customers (except for me) have been breaking and entering?  Are they too busy making money to get this?

No, capitalism is not a panacea, but it does provide obvious examples for pragmatic responses to the horrifying nonsense mobilizing our country's worst nativist reflexes.  

Supreme Court Conference Announcement: Cert Denied for Menocal et al. v. GEO Group, Inc.

From October 1, 2018 Supreme Court Docket for The GEO Group, Inc., Petitioner
v. 
Alejandro Menocal, et al.

In its petition last June, GEO reiterated arguments that lost in the Colorado federal district court, and lost in the Tenth Circuit appellate court.  In urging the Supreme Court to review GEO's defense of legalizing slavery before the case has gone to trial, GEO wrote:

[T]he court held that a longstanding government program aimed at reducing detainees’ idle time may now be categorically unjust under some standard that no one has quite pinned down....GEO is being sued for carrying out lawful and longstanding federal policies under an existing federal contract....If interlocutory appeals are still denied, contractors will face a tidal wave of class actions by hundreds of thousands of detainees before a single federal appellate court has reviewed de novo the merits of these TVPA and unjust enrichment claims... 

GEO seems to be under the impression that if it calls "forced labor" "reducing ... idle time" and breaks the law for a long time, its wrongdoing is grandfathered in just because it has a federal contract.   ("I've been driving 90 miles per hour on this freeway for decades. Here's my contract with the U.S. Postal Service. How else am I going to be able to deliver the mail?!") GEO's rationale is evidence that power and money, and the obscurity and secrecy of detention conditions, have been cushioning them for years from the firm's obligations to the rule of law.  (For the origins of this litigation, please see this Washington Post article and details on this and related cases here.)

GEO also argues that their important mission of locking people up urges the Supreme Court to review their case right now:

The combined force of these suits—and more that are sure to follow on the tailwinds of the panel’s decision—are burdensome to GEO and threaten to pass on greater costs to American taxpayers, as the costs of private detention services must rise in response to the litigation. Indeed, that is plainly the goal: to reduce the availability of one of the federal government’s chosen means of carrying out its Constitutional mandate to control the nation’s borders. That alone warrants this Court’s intervention.  

The Supreme Court one day may review this case and others.  In the meantime, we'll have to see how GEO's warnings play out.   The options are: settle and negotiate back pay to the classes certified in Colorado and other states or continue to litigate, lose in a jury trial in Colorado -- that GEO forces crews of six people daily to perform janitorial work is not in dispute -- and then renew their appeals.  Meanwhile, the parties should be on track to resume discovery.   (Oh, and this reminds me: what about their reassurances to their shareholders, that this litigation was baseless and no big deal?) 

Motions and orders on this and six other cases are here, though need some updating.  For an overview of the impact of this litigation, including successful claims that GEO has violated minimum wage laws in the states of Washington and California, see "When Migrants are Treated Like Slaves," New York Times, April 4, 2018. 

Department of Justice to Immigration Court Administrators: Ignore Pereira

In June, 2018 the Supreme Court made it clear that the immigration courts were accepting putative and not bona fide NTAs.  Shortly thereafter, the Executive Office of Immigration Review (EOIR) says, okay, we'll stop doing this.  And then, in July, EOIR reverses course and tells the courts to accept charging documents that are legally deficient.

On June 21, 2018, the Supreme Court held: "A putative notice to appear that fails to designate the specific time or place of the noncitizen’s removal proceedings is not a 'notice to appear under section 1229(a),' and so does not trigger the stop-time rule" (p. 9).

Less than a week later, on June 27, the EOIR sent an email to court administrators stating: "Effective immediately, NTAs filed at the window that do not specify the time and place of the hearing should be rejected."

Then, on July 11, 2018, EOIR's Deputy Chief Immigration Judge Christoper Santoro, apparently at the behest of the Department of Justice, reversed this instruction, as well as the Supreme Court:

The Department has concluded that, even after Pereira, EOIR should accept Notices to Appear that do not contain the time and place of the hearing. Accordingly, effective immediately, courts should begin accepting TBD NTAs. 

The message above supersedes the guidance below. [The email then quotes the email linked above.]

An attorney told me recently that he was no longer going to appear in any immigration courts: "They're not real courts."  Monopoly money works just fine in the game of Monopoly and bogus NTAs are par for the course in fake courts.

Texas Updates: New "Montgomery Processing Center" Immigration Court, Farm Said to Exploit Immigrants on Loan from Polk County Jail

The Houston detained deportation court dockets "continue to increase beyond capacity," according to an official who helps run them.  Documents just released reveal that as of May 24, 2018 almost 1,900 people in the Houston area under lock and key on any given day were in queue to have their fates decided by just three Department of Justice attorneys in Houston and three in ... Miami.  Though many of the Houston detained cases are heard by televideo so it probably doesn't matter so much if the hearing official is 20 or 1,200 miles away.

The government official, Elisa Sukkar, sounded the alarm:

I would like to point out that the Polk numbers are out of control as the docket was very high once, then dropped to 40 or 50 cases, and now is up to 600 cases. 

Today we received 75 Credible Fear Cases out of Polk so we are scrambling in terms of IJ time. 

I have asked CA [Court Administrator] Russelburg to reassign some of hte Polk cases to the Miami HOD judges to stabilize the situation. 

Starting Next week, each Miami HOD judge will dedicate one day a week to the Polk cases as ICE only has 2 VTC [televideo] units at Polk.  (IJ Walton will continue to use one and one Miami HOD judge will use the other VTC.)

Each and every single one of these cases is because of a status crime whose roots go back to English common law, when being caught outside your  parish of birth without a pass might lead to branding, the laceration of an ear, or, transportation to the colonies.

Email on crushing case load for Houston detained docket, click to enlarge

Many of these cases are for people who have been residing in the vicinity of these courts since they were toddlers or even infants.  (To read more on how a poorly conceptualized idea of citizenship is sustaining these practices in the United States and elsewhere, please go here.)

And guess what?  It's about to get much worse.

At the very time at which the government is throwing more people in ICE jails, they are closing the facility with experienced immigration judges and turning their dockets over to attorneys whom the government itself says lack the expertise necessary for these cases.

The agency's solicitation for the new immigration court says, "Because we have an immediate need to to cover this court, we will consider judges who would otherwise not be eligible to place their names on the reassignment register (for example, due to being on the bench fewer than 24 months or having been recently reassigned...)."

From job announcement of vacancies for immigration court replacing Houston detained court, click to enlarge

The email and a partial response to my request for documents associated with the reassignment of immigration judges caused by shifting the people arrested and the court from the Houston city limits and the opening of a new facility in Conroe, an hour away without traffic reveals the time frame is being pushed back from the fall (now) to late 2018 or early 2019.

Other highlights include 104 immigration judges "in process," apparently referring to IJs being hired or moved around (p. 2); Powell and Chris Brisack as two of the five IJs to be assigned to the new court, to be called the Montgomery Processing Center (MPC) (p. 3); individual IJ dockets ranging from 1 (from an IJ who retired years ago) to 603 for Walton at the Houston detained courts (p. 15); the three current IJs for the Houston detained docket will be moving to the non-detained docket downtown (p. 52);

FROM TRAC:  

Compared to Judge Brisack's denial rate of 83.6 percent, nationally during this same period, immigration court judges denied 52.8 percent of asylum claims. In the Houston Immigration Court where Judge Brisack was based, judges there denied asylum 87.1 percent of the time.  

Compared to Judge Powell's denial rate of 78.8 percent, nationally during this same period, immigration court judges denied 52.8 percent of asylum claims. In the Los Fresnos Immigration Court where Judge Powell was based, judges there denied asylum 77.4 percent of the time. 

Brisack is currently working at the non-detained Houston immigration court.  TRAC says Powell was at Los Fresnos (Port Isabel) in 2017, but EOIR's list of IJs there now omits him.

The closing of the current Houston detained court alongside a transfer of its operations to an expanded GEO facility in Conroe, Texas, about 45 minutes north, will create an enormous burden on attorneys based in Houston, and thus mean more costly and less accessible representation.

LIVINGSTON, POLK COUNTY  IAH

When observing with Northwestern students the detained hearings at Houston for three days in June, I heard from guards and other officials that CCA's contract with ICE was lapsing and it would operate its prison under a new contract with the U.S. Marshals.  There was a lot of fuzziness and I figured it would be helpful to have a sense of exactly who was going where and when, so I filed a records request, the results of which are above.

Also while in Houston, I was told that the new facility will incarcerate people who are now held in Houston CCA as well as the Livingston, Polk County jail, and that Polk County, under attack by civil rights groups for a decade, will discontinue its ICE contracts and subcontracts with MTC, a firm that has a horrifying track record, including riots and forced labor at the Livingstone facility.  At the time we were there, Polk County was the site of grisly outbreaks of infectious diseases and people missed hearings because they were in quarantine.  (I'm waiting for ICE's response to my requests for the reports on this, a FOIA case that is now in litigation.)

I also heard an account that the facility, run by a firm that is the country's third largest private prison operator, was returning to plantation slavery and driving folks held there, most of whom seemed to be long-term U.S. residents, to pick crops.  Someone whose hearing I observed reported to me that he was taken on a bus about 90 minutes away from the facility to work on a farm.  He reported that he and others detained at Polk County spent the day picking fruit and vegetables and collecting eggs.  He further reported that they were taken there on a bus at six a.m. and returned around 5 p.m., and that their pay was $1.  He was horrified and said that he did this just one day. 

I shared this lead with a reporter who was unable to find additional information, so I figured I'd report it here.  (If someone wants to be a whistle blower, let me know! jackiestevens AT protonmail.com)

The new court replacing the one in the Houston Processing Center will be called the Montgomery Processing Center (MPC) and will be handling people detained at Joe Corley, in Conroe, and also the new facility adjacent to it, also owned GEO.

Google map satellite view of GEO's Joe Corley Detention Facility and new Montgomery Processing Center,
W. Cartwright Rd, Highway 336, Conroe, Texas

There is a row of prisons on a dead-end street alongside a highway, including one for people with mental disabilities.  When students and I walked around to inspect the mammoth GEO facility under construction -- it was around 6:30 pm and the site was active -- we saw through a modest cage around a small yard people in white uniforms at the adjacent jail.  They were walking silently, slowly in circles at dusk.  The scene would send shivers down the spine of anyone with a calendar for 2018. The bulldozers in the construction site were awaiting the next morning's orders to shift earth to make way for a new building where clerks, guards, attorneys, immigration judges, and those whose bad luck of birth made them a "case" and removed them from society will all together spend endless, pointless days in concrete tombs for zombies.  In the name of law, we lock ourselves up by edicts, a point Lon Fuller made when he explained the validity of war crime trials for Nazi officials.  (The eight criteria for the rule of law inevitably go unmet in the exercise of national sovereignty.)  In the name of rationality, there is only madness, stupidity, and dollars for those too craven for shame and justice.

How Many Errors are in this Graphic on U.S. Citizens in ICE Custody Published in the Los Angeles Times?

A few days ago a reporter from the Los Angeles Times reminded me of what journalism looks like when it works.  And that reminded me of what it looks like when undertaken by his colleagues Paige St. John and Joel Rubin.  Their article makes bogus claims about ICE reviews of claims of U.S. citizenship and announces breaking news on immigration court adjournments of cases of U.S. citizens that another reporter broke eight months earlier.

My analysis of their article and some new information from ICE attorneys reviewing claims of U.S. citizenship is here.

The primary audiences for this are the Los Angeles Times editor, journalists covering deportation, and folks interested in operational information on how ICE reviews claims of U.S. citizenship.

ICE Turning U.S. Citizens Over to DHHS? Are Those under Five of "Unknown Parentage" U.S. Citizens?

A reporter from Buzzfeed, Amber Jamieson, brought to my attention a passage from today's Declaration indicating that at least one U.S. citizen may be in the custody of Department of Health and Human Services.

Her article states:

A child under the age of 5 remains detained by the federal government after being separated from their parent at the US–Mexico border more than a year ago, even though they may be US citizens [sic].

8 CFR 1240.8 says that burden on the government to prove by "clear and convincing evidence" that someone put into removal proceedings is indeed an alien.

Today's declaration states:

One child on the original list has a parent who may or may not be a United States citizen (insufficient information is available to make this determination, and the parent and others are not available to provide that information). The child was separated from her parent in 2015 when her parent was arrested on an outstanding warrant by the U.S. Marshals Service. Defendants have not been aware of the parent’s location since then and they remain unable to locate that parent. 

A child in a class of those under 5 years old and taken into custody in 2015 could have been no more than 2 years old at the time of the separation.  If that child has been incommunicado from any relatives, then the child would have no information on where she was born.  Assuming that the child had no identification at the time her parent was arrested on an outstanding warrant -- which implies that the parent had been living in the U.S. for enough time to accumulate an outstanding warrant -- then it seems not only unlikely that ICE would have evidence of the child's alienage but also likely that the child was born in the United States.

What happened to this parent?  The U.S. Marshals could find the parent because of an outstanding warrant but a judge's order to do so leaves them coming up short? 

"Foundling" Law
Another possible scenario is that the government does not know who the child's parent even is.  This has been broached in some cases but I have not heard anyone make the point that each and every one of such individuals is by law a U.S. citizen.

According to 8 USC 1401, "The following shall be nationals and citizens of the United States at birth":

a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States.

In short, the U.S. government can collect all the DNA that it wants, but if they cannot match the children with a known parent, and cannot prove they were not born in the United States, then these children are effectively of "unknown parentage found in the United States" and they all are legally  U.S. citizens at birth.

UPDATE 9:15 pm: Amber Jamieson posted on Twitter stating that ICE says the possible US citizen parent in question presented herself and her son "born in Mexico" at the border in 2015 and that she was then taken into custody because of an outstanding warrant.  Once more a credible journalist  repeats ICE's claims without a shred of evidence or verification.  If ICE has hard evidence of this, why wasn't it in the Declaration, one necessary to show compliance with a court order? Why not release the documents?  The same government that claims it cannot now locate the mother expects, alas correctly, a compliant media will reprint their assertions about her background, just because they said so.
Why are reporters continuing to print statements from official ICE-dom when that agency has been demonstrably lying about US citizens detained and deported for decades?  Maybe this time ICE is right but the media is supposed to print the truth that it has verified, and not amplify whatever propaganda the government feeds them.

Q and A on "When Migrants are Treated Like Slaves," New York Times

For those who have seen the opinion piece in today's New York Times, here's a quick Q and A.

Q.  The work is not at gunpoint.  People are signing up for $1/day.  Why isn't this "volunteer" labor, like GEO and CoreCivic claim it is?
A.  First, some of it is coerced, e.g., the crews for janitorial cleaning of showers or ad hoc work ordered by guards on threat of punishment.  Second, the paid work doesn't meet the definition of a "volunteer" in our labor law.  A federal regulation defines a "volunteer" as someone who is donating time for no pay to a government organization or a nonprofit.  Nothing about people working to earn money to pay for phone calls or food in a private prison meets this definition.

Q.  Who are the 18 Republicans who favor forced labor?
A.  Here's the letter they sent.  See for yourself.

Q.  Why is this happening now?
A.  Because a brilliant team of civil rights attorneys and nonprofits took a risk and initiated this laborious and expensive litigation, beginning in Aurora, Colorado.  For the appeal, a number of organizations wrote amicus briefs.

Q.  Why am I just learning about this now?
A.  There has been a smattering of press coverage about this but our country suffers from chronic legal illiteracy.  This makes it tough for most journalists to cover the nuts and bolts financing of private prisons, and kleptocracy in general.  Reporters may not understand the law and the lack of public common sense on these matters means a lot more details are required to explain the litigation.  Matt Casler and Anya Patel, Eva Jefferson Paterson Fellows at the Deportation Research Clinic, will be writing a letter responding to the one signed by the 18 Republicans and explain their errors in more detail, as well as the relation between investment firms and private prisons.

Plus, ICE has most of the information and is not eager to share.  It took years of FOIA requests and litigation to obtain the information presented in the opinion piece.  (Thanks to Andrew Free for all his work on this, and on these cases.)

Q.  Is it really "slavery"?
A.   The labor typically is not outdoors and people are not being lashed with whips. That said, guards do round up details of those in ICE custody to work under grim conditions (back-breaking manual labor, toxic chemicals, no breaks) and refusals elicit punishment.  Also, most of the history of slavery was not plantation slavery.  There was early modern prison work, work deported vagrants performed in the colonies, e.g., building fortresses in Georgia, and, of course, the Nazi labor camps readers have mentioned in email to me today.  Until the fifteenth century, slavery was the work required of captured foreigners.  This form of slavery was practiced pervasively and for most of the history of the world.

Q.  Where can I read more about the harms of birthright citizenship, and the connections among nation-state, slavery, and war?
A.  For a critique of birthright citizenship, see Citizenship in Question: Evidentiary Birthright and Statelessness (Duke University Press, 2017).  You can download it courtesy of Knowledge Unlatched at no cost.  For a critique of intergenerational identity politics, especially nationalism, and analysis of the connections among the nation, slavery, and war, see States Without Nations: Citizenship for Mortals (Columbia University Press, 2009).
And if you're into political theory and want to understand political membership -- in the nation, ethnicity, race, the family, and religion -- see Reproducing the State (Princeton University Press, 1999).