ICE Really is Out to Get Miguel Silvestre, a U.S. Citizen
Miguel reached out to me a couple years ago because he couldn't shake the fear that Immigration and Customs Enforcement might try to mess up his life, again. Miguel was born in Stockton, California and has a contemporaneous birth certficate. I pursued records requests so he could obtain the bogus records driving his original deportation as well as the records on its termination in 2004, so that having them might give Miguel some documentation, prevent this from happening again, and give him some peace of mind. (You can read about his ordeal here.)
Beseiged since early 2025 by reporters who wanted to know how a U.S. citizen could be deported, I posted a few months ago a detailed narrative of Miguel's experiences. Noting that even though they went back to 1999, 2002, and 2004, I shared screen shots of the records documenting how immigration agents then and today can work with local law enforcement to deport, or in Miguel's case, simply kidnap, a U.S. citizen.
On July 4, 2025 Miguel had a day off work and called me back. I was so relieved to hear from him. I wasn't able to reach him earlier in the week and worried he was already picked up. Still, I felt awful about the alarming news I had to break to him.
A Customs and Border Patrol release of his records to me last week, one I thought would include historical materials, revealed ICE had written up a new arrest warrant and on June 26, 2025 issued a fresh expedited removal order, meaning that any encounter with any law enforcement entity could mean Miguel goes straight to Mexico, without an immigration hearing.
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Miguel's been working on a construction site a three hour drive from home, waking up at 3:30 in the morning and returning home at 7:30 p.m. He's still traumatized from the kidnapping experiences 20 years ago and newly worried about a fender bender he caused from his exhaustion, one that involved the exchange of insurance information but not a police report. We discussed what he could do to prevent another nightmare. "I carry that 2004 order in my backpack everywhere I go," he told me.
How is this even possible? Miguel should be the last person in this country who should be flagged for immediate removal. I should be more worried about deportation than Miguel. That's because only Miguel has an order from an immigration judge terminating his deportation and stating Miguel is a U.S. citizen, based on his mother bringing down to Florence, Arizona, a copy of Miguel's birth certificate.
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Miguel is not the only one who should be alarmed. The U.S. Supreme Court needs to revisit the precedents derived from vague treatises on national sovereignty, on which the Chinese Exclusion Act precedents overturning the Constitution's due process rights were based. Miguel's plight further highlights the toxicity of the "nation" and its "national security" myths on which these cases relied. It's time to use originalism to overturn vague claims that are not grounded in the text of the Constitution.
On the occasion of our celebration of independence from England, We the People should be able to celebrate our independence of pernicious myths of the U.S. as a nation. (A chapter reviewing this jurisprudence will appear in a forthcoming collection of essays edited by Nicholas De Genova and Daniel Morales, Border Abolitionism: Migrant Struggles and the Law, Duke University Press.)
