"Everything They Did, They Did At Night": This is How Sheriffs and Federal Agents Deport U.S. Citizens

Past as Prologue - Expect More US Citizens Deported
and more cover-ups

From CBP File on U.S. Citizen Miguel Silvestre, 2004

Superbowl Sunday, January 31, 1999.  Miguel Silvestre, 20, was in the drunk tank at the San Joaquin County Jail.  Three men in green uniforms entered Miguel's cell and asked some questions.  The conversation began in Spanish but quickly turned to English, Miguel's best language.  “I told them, ‘I’m from Stockton, California. I was born at the Dameron Hospital,’” eight miles up the road. The men also asked about his brothers.  Miguel let the guards know that they, too, were born in Stockton, where his father worked as a foreman for a nearby construction company.   

“We’ll come back,” one said. 

A half hour later they returned.  “Grab your property.  You’re coming with us.”  The guards escorted him to a dull green and grey bus. Miguel, on parole, figured he and the four others in the jail were on their way to prison. 

About 20 minutes later Miguel made out that they were entering the Port of Stockton, a gritty 6.5 square mile hub for container ships, rail transport, and long-haul trucks and storage for the goods and fuel in transit.  The group entered a building.  One side had two cells, the other some guys at their desks in civilian cloths. One approached, a White man with grey hair.  “Where’s Miguel?” he asked. 

“I'm right here," Miguel said.    

“Oh, so you’re the troublemaker,” the man said. Miguel figured he'd heard about the fight with another inmate when he was being booked at the jail.  

“Give me your belt,” the man in civilian clothes ordered.  

“I can’t.  My pants will fall down.”  

The official punched Miguel in the stomach. Miguel handed over his belt.

In the holding cell someone tried giving Miguel a Bible.  Miguel asked why.  The Good Samaritan replied, “We’re leaving.  We’re being transferred.  Aren’t you scared?”  Shackled, his stomach aching from the hit and nausea from the hangover, Miguel demurred. No reason to be more scared of “somewhere else,” even prison, than a holding cell in the Port of Stockton with some old guy who punches you. 

Six days after he and his friends watched the Broncos beat the Falcons and his mom called 911 to report her son's alcohol and meth-fueled demands to borrow her car, Miguel, in a tan prison outfit, stripped of his drivers license and social security card, heard guards shouting to his group that had just disembarked a bus, "Keep walking!"  A few minutes later he had reached his final destination: Nogales, Mexico.

Route from Eloy Detention Center, AZ to Nogales, MX

"If you ask questions they ignore you or tell you to shut up," he said, explaining to me his confusion about the odyssey that took him to several jails, a military base with soldiers using gun scopes to scan the sky with red beams, his first plane flight ever, and being chemically sprayed in Eloy, AZ.  "Everything they did, they did at night,” he said.  

After arriving in Nogales it took Miguel a day to figure out he had been deported and two more days before a church worker told him the U.S. government could not do that to a U.S. citizen.  When Miguel tried to return, U.S. border patrol threw him back into Mexico, so he called his dad.  

"Are you lying to me?" his father asked. "They can't do that to a U.S. citizen," he added, underscoring his reluctance to abandon his construction work crew based on nonsense from his addict son.  Finally convinced, his father grabbed Miguel's birth certificate with the imprint from Miguel's newborn feet and drove his red GMC pickup down to Mexico. "He seen me and started crying," Miguel said, describing how his father reacted on encountering his son, 5' tall, filthy and wearing a woman's shirt he'd grabbed from the church donation pile.

***

The account above is from episodic interviews with Miguel over the last three years.  It tracks precisely the paperwork I finally obtained through Freedom of Information Act requests and litigation, though some records remains withheld in a dispute before a federal district court in Northern Illinois. 

The protocols ICE and its predecessor INS followed are identical to those in place today, and resemble dozens of other cases I've reviewed.  The details highlighted here reveal the inner workings of the deportation machine.  Specific records are reviewed so media and policymakers can see how the U.S. government illegally deports U.S. citizens.  Of note is that this is not a "mix-up" but a deliberate effort to deport someone the sheriffs and INS had clear evidence of U.S. citizenship at birth.  Prior personal contact and details in Miguel's criminal records, in addition to Miguel's own statements, left no doubt of his U.S. citizenship.  ICE's mid-February announcement of efforts to coordinate with sheriffs indicates we can expect more unlawful deportations, of U.S. citizens and noncitizens.      

1)  11 a.m., Feb. 1.  An INS officer types up the I-213 that invented Miguel's fake bio.  Miguel is brought from jail to CBP building in Port of Stockton.

From Miguel's I-213, 1999 

Pretty much everything here is fiction, including that Miguel was arrested for a DUI.  (The criminal arrest record INS attached makes no mention of any DUI arrest at any time. Miguel may have been a menace to his family, but he was not driving when the county sheriff took him into custody.)

If anyone were to spend a few minutes looking at this record, the fraudulent paperwork used to kidnap Miguel would be obvious: the biographical information on his recent criminal arrests in May, 1998, November 1998, and January 16, 1999 for possession of drugs and carrying a firearm, made it obvious that Miguel was quite familiar to the local sheriffs, who were knowledgeable of his U.S. citizenship as well, a fact that appears on their prior records on him. 

If Miguel really were from Mexico, then why was he on probation and not deported after his gun and meth possession prison time in 1998?  And why didn't CBP note the records showed he was born and raised in San Joaquin County?

Miguel might have been the world's worst son, but he was quite obviously the Stockton-born-and-bred child of the Modesto-resident mother who had called 911, not some Mexican guy from Guerrero who happened to share his same name, birth date, and parents but had first shown up in the United States just two weeks earlier for agricultural work.

2)  4:18 p.m. CBP, Port of Stockton, Arrest Warrant 

 click to enlarge

In the afternoon of February 1, 1999, Port Agent in Charge Dale Johnson had created an arrest record, Exhibit 1 for Miguel's sham administrative hearing inside the Eloy, Arizona detention facility run by the Immigration and Naturalization Service (INS), the predecessor to Immigration and Customs Enforcement (ICE).  Johnson's report stated Miguel had first entered the U.S. two weeks earlier and was agricultural labor.  In the space for "Currently Residing" Johnson wrote, "FAILED TO PROVIDE."  

All of this was sheer fiction, written about a guy in a nearby holding cell who was entirely clueless as to the fact that Johnson was effecting Miguel's kidnapping. 

3)  Feb. 1, 1999, Port of Stockton, Notice to Appear, created by Dale Johnson

 

 Notice to Appear - Has "Ds" in left margin denying he is a national and citizen of Mexico
Created by CBP Officer Dale Johnson, Feb. 1, 1999 (click to enlarge)

4)   DOJ Attorney/"Immigration Judge" Notes Indicate Claim of US Citizenship

Notes of John Zastrow, IJ who deported other US citizens, including Johann Francis

Zastrow memorializes Miguel's claim to U.S. citizenship and then indicates Miguel said he was born in Mexico.  While in some cases, U.S. citizens may have acquired fake birth certificates in Mexico for purposes of attending public schools, this was never the case for Miguel.  Copious documentation proves Miguel was born and raised in California. 

Zastrow provides no explanation as to why Miguel would claim U.S. citizenship and then assert he was born in Mexico. 

The hearing was on the morning of Friday, February 5, 1999, the culmination of several days of confusing travel and attacks by INS agents annoyed by Miguel's yelling at them from his cell in Eloy, AZ.  He demanded to know what was happening, and screamed obscene insults at the guards.  In the wee morning hours guards cajoled him to approach the meal tray slot, then launched a chemical spray in his direction through the opening and charged his cell.  

After roughing him up, guards brought Miguel to the showers, to rinse out the spray from his eyes and elsewhere, the result of which was to saturate his genitals with the chemicals and cause further pain, the treatment for which was shots of tranquilizers, Miguel told me.  

A few hours later Miguel, groggy and disoriented, was dragged out of his cell into an immigration court room inside Eloy, a fact of which he was not aware.  At the time, his best guess as to what was happening was that he was being arraigned for a parole violation.

4)   What about the Mandatory Recordings of Immigration Hearings?

EOIR in 1999 and in 2004 was obligated to record all removal hearings, pursuant to 8 CFR 1240.9. Any discrepancies between Zastrow's claims and Miguel's could be easily resolved if we had these cassettes.  After I filed a lawsuit, EOIR still withheld the audio recordings and other EOIR records responsive to my request.   (I know this because USCIS produced EOIR records that EOIR withheld from me.) 

Executive Office of Immigration:  Oops! No Audio for Either Hearing (click to enlarge)

If records the government is obligated to retain are damaged, the agency is required to submit a report on this to the National Archives and Records Administration.  No such report exists. 

5)  Miguel Files Complaint, July, 1999.   A few months after his February ordeal, Miguel filed a complaint with the DOJ, pursuant to the Federal Torts Claims Act.   

FTCA Complaint

6) INS Doubles Down on Agency Lies and Reliance on Lies

INS Response to Complaint - click to enlarge

The INS analysis relies exclusively on false information in the charging documents.  The author fails to note that Silvestre asserted U.S. citizenship in the hearing before Zastrow, and claims that Miguel's signatures indicating receipt of filings is proof that Miguel himself stated he was a citizen of Mexico who entered the U.S. in January, 1999.     

7)  Second Detainer Issued (2002) - Agents Note Miguel's Assertion of US Citizenship

The paperwork indicate the detainer was created on February 22, 2002 and evaluated while Miguel was in the custody of the Modesto Police, including his assertion of U.S. citizenship.

I-213, Feb. 22, 2002

8)  INS already knew Miguel was a US citizen, and born in Stockton, California

Database Search 2-21-2002 Shows Miguel born in California, US Citizen

Information on right: "Citizenship United States."

Further, in response to INS request, Modesto Police confirmed that the fingerprints of the guy they were trying to deport matched the fingerprints and other biographical information for the U.S. citizen Miguel Guzman-Silvestre.  

INS Receives Confirmation Miguel a U.S. Citizen, 2002, click to enlarge

 

9) Second Detainer Dropped (2002) - "Mexican" Citizenship Not Corrected

I-213 "Drop Hold," 3-9-2002

On March 9, 2022, INS dropped the detainer of a guy they knew was born Stockton.  However, no one bothered to correct the INS database to indicate that Miguel was born in the United States, much less open an investigation into the events of 1999 producing the first fraudulent I-213.  It was obvious to anyone reviewing this paperwork that something very bad had happened in 1999, but no one followed up to figure out just what had occurred, much less to correct the error.

 9)  Third Detainer in San Luis, AZ, 2004
In 2004, Miguel was living in Arizona and accompanied a friend to Mexico for the weekend.  When he tried to return, CBP saw the prior deportation and arrested him, disregarding the findings from 2002 to drop the detainer hold.  

San Luis, POE, photo from Yuma Sun New

Miguel knew the drill.  He brought with him his birth certificate and California driver's license, as the CBP confirms.

CBP notes Miguel's Birth Certificate and Calif. DL, Proof that BC is Miguel's,
Makes Error on Date of Entry, click to enlarge

Here's how Miguel describes what happened:

The guard said, "I can't let you go into US. You've got to go back into Mexico.  You need someone to send documentation.  I need birth certificate."  I called my mother.  She decided to come down to Arizona, to San Luis.  Me, her, and my friend's mom wanted to take me somewhere to apply for a passport.  But I was feeling sick.  They left and I stayed in San Luis, Mexico.  "When you feel better, you go back into Yuma and fix things there," they told me.  

A day or two I felt better.   Mom called me.  "You're going to walk through there.  Your uncle will be right behind you." I went through.  I started walking. As I came, they asked me a question.  "Where were you born?" 

"Stockton, California."  I gave him that right away.   He arrested me.  I'm looking at my uncle.  "Aren't you going to do something?" 

He took me into the holding cell.  They took all my information.  I gave them all my documents. "You're committing fraud," they said, "You're trying to represent somebody that aint you."  They held me  6-8 hours.  

CBP has an interview template.  

Q.  Why did you leave your homeland or country of residence?"  A. "Because they said I had to fix my deportation in Arizona." 

Q.  Do you have any fear or concern about being returned to your home country or being removed from the United States?  A.  I would just be pissed off being returned to a country where I wasn't born.  

Q.  Would you be harmed if you returned to your home country or country of last residence. A. No, but I have no reason [sic] over there.   

Q.  Do you have any question or is there anything else you would like to add?  A.  Why does the paper work I see around me say I am a Mexican citizen? 

Interview in Bizarroland, March 8, 2004, click to enlarge

The Alien Who is a Citizen
Miguel's records are of a piece with a pattern: a deported U.S. citizen who produces records documenting U.S. citizenship elicits accusations of false personation of a U.S. citizen, as the San Luis, AZ charged Miguel in March, 2004.  

I-213, 2004

I-860 Form, 2004

I-860 Form 

Miguel couldn't win.  If he didn't present documents he would not be allowed to return to his home.  But when he did, CBP wrote:

You are ineligible for admission to the United States ... You are an alien who, at the time of your application for admission at the San Luis, Arizona Port of Entry on March 7, 2004, ... falsely represented yourself to be a United States citizen ... [But] you are an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or sought to procure of has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act, to wit: You presented a California birth certificate in the name of Miguel Silvestre, born in Stockton, California on [PII] 1978 and attempted to assume that person's identity in order to be admitted to the United States.

The disposition on the report on March 8, said "expedited removal."  Typically that means immediate deportation, perhaps directly or perhaps through the detained immigration court docket.  Instead, CBP sent Miguel to the Yuma County Jail, to face criminal charges 

10)  Yuma, AZ Federal Court

Of his 2004 arrest, Miguel said,

Then they sent me to Yuma, Arizona, to the county jail.  I was there a day or two. Then they took me to the immigration court. They  took me there with my mother.  The judge said, "What's your name?" Then it was over.  "That's it?"

March 9, 2004 Indictment, 8 USC 1326, 8 USC 1325, click to enlarge

 

I said, "What's going on?" No one said anything. They took me out and sent me back to the county jail.  "What just happened?" I asked.  The guards said, "You've been to Tijuana lately."  I told them, "I've never stepped foot in Tijuana." 

They kept me there three days.  Then they picked me up again and took me to Florence [Arizona].  

 

I  pointed out that the paperwork in Yuma was actually for federal court, that he was being charged with a felony of Illegal Reentry and the misdemeanor of Illegal Entry.  If he had been convicted, the judge would have sentenced him to several years in prison, and THEN he would be put into removal proceedings.  I asked Miguel if he showed anyone evidence of his U.S. citizenship at that the hearing.  Miguel's aunt recalls there were a few other inmates and their families n the court room.  Miguel's mother showed the bailiff and then the judge all the paperwork documenting Miguel's U.S. citizenship.  Miguel does not recall any formal statement from the judge, just being taken back to then being sent to Florence. 

Without notice to Miguel, the next day the federal court dismissed the charges. 

March 10, 2004, Charges Dismissed, click to enlarge

The charges were dismissed, presumably based on the evidence of Miguel's U.S. citizenship, and yet Miguel remained in custody in Yuma until he was transferred a few days later to an ICE facility in Florence, Arizona. 

  

11)  Florence, Arizona, Florence Immigrant and Refugee Rights Project files appearance

Miguel and his mom go to Florence.  Miguel is still in custody.  His mother needs to drive from where she was staying with relatives.  

On March 16, 2004, Miguel's mother files an affidavit and the rest of Miguel's records documenting his birth and school attendance in California with the immigration court.

Mom Swears Miguel Born in the Stockton, California, click to enlarge

On March 23, 2004, the immigration court at the Florence Detention Center affirmed Miguel's claim to U.S. citizenship.

2004 Order Finding Miguel a US Citizen,
Terminating Removal Proceedings in Florence, AZ

The next day, ICE filed a motion indicating that the NTA of February 25, 2004 was "improvidently issued" and moved to terminate.  

ICE Moves to Terminate Without Prejudice

However, ICE cannot retract inaccurate allegations without creating new errors. First, ICE's Notice to Appear was created on March 18, 2004, two days after his mother submitted the paperwork documenting his U.S. citizenship, not February 25, a date before Miguel was apprehended.  Further, Miguel is never not going to be a U.S. citizen.  Why is ICE moving to dismiss without prejudice?  Shouldn't the government recognize a massive prejudice against the possibility of ever again charging Miguel with being a noncitizen? 

Interview with CBP official Dale Johnson

On February 1, 1999, CBP Officer Johnson created a false report filed with the immigration court a few days later in Florence, Arizona.  A few days ago I spoke with him by phone.  I asked him how it was possible for him to write this false narrative leading to the deportation of a U.S. citizen. "It wouldn’t have happened."

I told him I had the paperwork right in front of me, including his name and signature on a document that demonstrably false information. Next was the CYA.  "It wasn't me. He would have gone to a deportation office. They would have brought him to El Centro," suggesting that most of the individuals who ran through his office were bussed to Southern California, not Arizona.  

I pointed out that no one could be sent anywhere in INS custody without someone in Stockton first completing the paperwork, and that it turned out he was the person who did this, in response to the I-213 created a few hours earlier.  (The names on that are redacted.)  

"Sometimes they would claim US citizenship so they could go back to Mexico," he said, trying to account for why he would have received an I-213 with inaccurate statements. 

I told him this made no sense.  "You sound like you are someone who hates ICE," he replied, adding that he did not want to continue the conversation.  I offered to send him the records in case he wanted to review them.  He declined and said he no longer wished to speak with me.

Conclusions

1)  Nothing in the protocols relied on by any of these agencies has changed since 2004. 

2)  Many of the people who deported Miguel on numerous occasions knew he was a U.S. citizen.

3)  Many of the government officials who created or reviewed these records must have known that the original 1999 I-213 arrest sheet were created at best falsely and likely fraudulently. In 2002 this impeded a new I-213, but the 2004 CBP and ICE officials disregarded this.

4)  No one has done anything to protect Miguel from enduring similar treatment at a later date. 

Miguel is not a choir boy.  But he has never kidnapped anyone.  He has never falsely imprisoned anyone.  And he has never assaulted anyone with a chemical spray.   I have numerous other accounts of U.S. citizens detained and deported, accounts that ICE is doing its utmost to delay or refuse to produce. Why?  They know that if these facts go before our courts, plenary power afforded Congress and law enforcement when it comes to deportation policy will be rescinded.  The plenary power to disregard the Constitutional rights of noncitizens is wrong on its merits, but it extends only to noncitizens.  Over a century of evidence that the removal of due process protections for noncitizens entails the kidnapping and false imprisonment of U.S. citizens removes these prerogatives.  (Working on the law review article, but in light of interest by various parties, I wanted to share these details in the meantime.) 

Many thanks to FOIA attorney Nicolette Glazer and Deportation Research Clinic research assistants who have pitched in on requests and litigation analyses: Addie Fleming, Caitlin Jimmar, Gabriel Sanchez, and Juliana Zitron.  Thanks also for support from the Northwestern University Political Science Department and the Buffett Institute for Global Affairs. A special thanks to Miguel, for his patience, persistence, and his honesty. If you are a lawyer (or a California state prosecutor) and want to speak further with Miguel, please let me know. jacqueline-stevens AT northwestern. edu 

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