Deported U.S. Citizen Andres Robles Wins $350,000 Settlement, Records Corrected

    

Deported U.S. Citizen Andres Robles Wins Record $350,000
 False Records Corrected

Analysis of EOIR Cases Adjourned with Claims of US Citizenship: ICE Still Detaining and Deporting U.S. Citizens as Aliens, and Still Lying about It

Update covers (click to move directly to the section)
*Deported U.S. Citizen Andres Robles Settles Lawsuit
*U.S. Government Detaining and Deporting U.S. Citizens: Recent Timeline
*Analysis of Recent Data on Immigration Court Cases: "Alien Claim to U.S. Citizenship"
*Detained U.S. Citizen Jhon Ocampo
*Lawsuit by Deported U.S. Citizen Robert Dominguez, Government Fraudulently Revokes his Passport
*Deported U.S. Citizen Demetrious (Jim) Koukolomates in Greece, Attorney Andrew Free Obtains Termination Order, February, 2015
*Why this Matters, and Remedies


Andres Robles was 19 years old in 2008 when Immigration and Customs Enforcement (ICE) agents in Louisana ignored his claims of U.S. citizenship, as well as their own files that readily affirm this status, and deported him to Mexico for three years. 

Eventually U.S. Citizenship and Immigration Services (USCIS) saw fit to issue him a Certificate of Citizenship, but there was a problem. Since the government had deported him, the government could not provide him with the certificate, government employee Jonathan Crawford, New Orleans Field Director, helpfully pointed out:

Your N-600 Application for a Certificate of Citizenship was approved on June 15, 20011 [sic]. You derive [sic] citizenship on June 13, 2002, when your father became a naturalized citizen of the United States. However, since you were deported from the United States, we are unable to complete the N-600 application process and provide you with a certificate of citizenship.

Upon your return to the United States, please make an appointment at the USCIS office closest to your current location. At that time, the local office will be able to assist you in obtaining your certificate of citizenship.
Andres this letter confirming his U.S. citizenship, a Vice Consul with the U.S. Department of State denied Andres a U.S. passport document. In his denial letter, the Vice Consul stated: "[I]t does not appear that you have a claim to U.S. citizenship[.]”

Andres eventually made his way back in, thanks to the persistence of immigration attorney Larry Fabacher, who had to badger the U.S. government for months after the USCIS confirmed Andres's U.S. citizenship.

Just days after Andres returned to the United States with a U.S. passport card in August 2011, ICE issued ANOTHER immigration detainer against him, causing several more days of illegal detention.

The errant paper trail ICE created and then failed to correct apparently prevented Andres from obtaining a Social Security card, Louisiana Driver's License, and the everyday benefits citizens derive therefrom.  Following several unsuccessful efforts by his older sister, Maria, to obtain legal counsel seek remediation, civil rights attorney Andrew Free, who represents the Deportation Research Clinic in our FOIA litigation, stepped in at the request of the Clinic and filed suit.  

Extensive discovery ensued, including revelations that the government was well aware of their mistake and were doing nothing to remedy it. Finally, on May 1, 2015, the United States Government agreed to correct Robles's records of all references to his "alienage" and deportation, and to pay Andres $350,000 in damages.

Absent such an intervention, U.S. government records would have recorded Andres's deportation as that of one more "criminal alien."  The lawsuit not only provides Andres well-deserved compensation, it also corrects the record, a key objective for the forensic intelligence paradigm that guides the Deportation Research Clinic scholarship. Lawsuits such as these provide data necessary for accurate scholarship and journalism on U.S. deportation policy; they highlight the criminal misconduct perpetrated by the government in contrast with putative civil infractions of immigration law Immigration and Customs Enforcement is authorized to prevent. 

(For more details, see the Andres Robles tag on the blog States Without Nations, which broke the story and followed Andre's efforts to return in 2011.)

U.S. Government Still Detaining and Deporting U.S. Citizens

Andres is not the only U.S. citizen deported and seeking redress.  This update provides analysis of data on U.S. citizens in deportation proceedings from January 1, 2011 to September 30, 2014.  And it updates the status of two other deported U.S. citizens: Massachusetts native Roberto Dominguez, deported when he was 19 to the Dominican Republic and U.S citizen Dimitrios Koukoulomates, unlawfully banished at the age of 42 to Greece, a country he had not been to since he was a child.  

Journalists and scholars have been reporting on these violations throughout this period, but to no avail.  In the last decade, officials of Immigration and Customs Enforcement (ICE) went from stating they did not know how often this occurred, to categorically denying these events, to claiming, in 2013, that the practice had occurred but new steps by the agency had corrected this and the problem was historic.

Timeline of ICE Statements on the Unlawful Detention and Deportation of U.S. Citizens: Key Statements and Actions

2008
ICE IN DENIAL
- Several U.S. citizens in the presence of ICE Assistant Secretary Gary Mead testify at Congressional hearing about their experiences being arrested and detained by ICE. 
Mead sticks to script and pretends as though they never gave the testimony he just heard. Claims ICE has no record of US citizens in ICE custody.
"Problems With ICE Interrogation, Detention, and Removal Proceedings," Hearing before the House Subcommittee on Immigration, Citizenship, Border Security, Refugees, and International Law, House Judiciary, 110th Congress, June 4.

-"ICE does not track the number of U.S. citizens it detains."
ICE attorneys responding to an inquiry by the House Subcommittee chaired by Zoe Lofgren looking into U.S. citizens detained  problem. 
From Problems With ICE Interrogation, Detention, and Removal Proceedings, Hearing before the House Subcommittee on Immigration, Citizenship, Border Security, Refugees, and International Law, House Judiciary, 110th Congress, Report, Note 5 at 139.

-"ICE does not knowingly detain U.S. citizens."
ICE spokesperson Brandon Alvarez, email to Stevens for a Nation magazine article.
"Thin ICE."


2009
ICE PROPAGANDA-I
CATEGORICAL DENIAL
-"ICE does not detain U.S. citizens."
ICE spokespeson Richard Rocha in interview.
Andrew Becker and Patrick McDonnell, "U.S. Citizens Caught Up In Immigration Sweeps,"Los Angeles Times, June 9.

-"ICE never detains U.S. citizens."
ICE spokesperson Barbara Gonzales, in response to my follow up questions, telephone, June 9, 2009.  

late 2009-2010
ICE TRIES TO MANAGE THE PROBLEM
-ICE establishes e-mail address for reports to headquarters of claims to US citizenship for those in ICE custody.  4,000 pages of email responsive to this are produced between its inception on November 19, 2009 and March 1, 2010. 

2011
DETAILED DOCUMENTATION ON ICE DETAINING AND DEPORTING US CITIZENS
- Stevens publishes 115 page analysis of ICE detaining and deporting U.S. citizen, shows from 2006-2008, one percent of deportation proceedings in southern Arizona detained population (10% of country, most from California jails), terminated because of U.S. citizenship and an estimated .5% of deportations as U.S. citizens. Analyzes protocols for 53 deportions of U.S. citizens. "U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens" Virginia Journal of Social Policy and Law, 18(3).

-Articles in national and local newspapers continue to document U.S. citizens in ICE custody and deported. Here are three examples.

Sandra Baltazar Martinez, "Santa Fe Man One of Thousands of Legal Citizens Incarcerated by ICE," Santa Fe New Mexican, November 20.

Paul McEnroe, "U.S. Citizenship No Defense Against Deportation," Minneapolis Star-Tribune, December 11.

Julia Preston, "Immigration Crackdown Also Snares Americans," December 11. (Please go here for 2011 correction of Preston's now demonstrably inaccurate claim that there were no U.S. citizens in 2011 who had been deported.)

Ted Robbins. "In Rush to Deport, Expelling U.S. Citizens," NPR, October 4.

2012
ICE CONCEDES IT IS DEPORTING US CITIZENS, CLAIMS REMEDIATION
-Teenage Houston native Jakadrian Turner attracts national attention when she returns from her deportation to Columbia.
Patrik Jonsson, "Deported Teen Returns to the U.S.  How Many Americans are Mistakenly Banished?" Christian Science Monitor, January 7.

-ICE propaganda machine shifts from denying ICE ever deports US citizens to publishing an announcement of toll number for US citizens in ICE custody.

link to archived ICE home page with advertisement of toll free number here
link to archived release page here

2013
ICE PROPAGANDA-II. 
ICE HAS STOPPED DEPORTING U.S. CITIZENS  

-In April, the New Yorker magazine publishes an article reporting on Professsor Stevens's research on the deportations of Mark Lyttle and other U.S. citizens.

-In May, the New Yorker publishes a letter responding to the article by John Morton, then ICE Assistant Director, stating that Lyttle’s experience was a “rare and unfortunate case dating back to 2008” and that ICE had “new safeguards to protect against the possibility of a citizen’s detainment or removal.”  The claim is not just that ICE is protecting against a citizen's detention, but that ICE is protecting us from even the possibility of this occurring.

2014  
ICE STILL DETAINING US CITIZENS
EOIR FOIA Case No. 2014-23528 

The Executive Office of Immigration Review releases to the Deportation Research Clinic data on 1,219 individuals with immigration court hearings between January 1, 2011 and September 30, 2014 whose cases have adjournment codes indicating "Alien Claim to U.S. Citizenship," an oxymoron for a hearing that may determine the adjournment was because of a U.S. Citizen Claim to U.S. Citizenship.

256 orders terminated for cases adjourned because of "aliens" claims of U.S. citizenship, an unknown portion of all cases in which U.S. citizens receive deportation orders.  

2015
Propaganda-III
RELEASE REVEALS MORTON LIED IN NEW YORKER LETTER
After reading Morton's letter, Clinic Director files request for all documents on which Morton relied in drafting this reply.
109 page file is incomplete but shows that when Morton wrote the letter he was aware of cases of US citizens in ICE custody AFTER the implementation of the third wave of "new" protocols.
Cover letter on scope of response
ICE FOIA Case No. 2015-ICFO-00500 Response

Morton has in his possession several cases, including an Indiana ACLU demand for jury trial for naturalized U.S. citizen in ICE custody, an Illinois U.S. citizen in ICE custody for six days, and a New Jersey born U.S. citizen in ICE custody, as well as a memorandum directing "aliens to call the LESC if they a United States citizen..."

The position seems to be that if ICE admits it holds U.S. citizens for hours or days, and covers up the longer detentions documented below, then then it's okay to call them "aliens" and give them a phone number, avoiding the legal fact that even in these cases there was no probable cause for suspecting alienage other than racial profiling and that ICE holding U.S. citizens in these circumstances is false imprisonment and kidnapping.

The release also contains several cases in which there are complaints of US citizens in ICE custody and ICE field office denials, but no investigation of the accuracy of the field offices's responses.  Morton has no basis for crediting the self-serving narratives provided by the ICE agents who have U.S. citizens in their custody. Unless there is a lawsuit, the ICE claims will prevail but could be inaccurate.

Jhon Ocampo
For instance, one of the items in the release of ICE documents on U.S. citizens in Morton's possession references ICE's arrest of U.S. citizen Jhon Ocampo, and includes this link to its first report on States Without Nations, as well as reference to inquiries by a "liberal weekly alternative newspaper in Springsfield."  The ICE narrative Morton has claims that once Ocampo produced documents proving his U.S. citizenship he was released, six days later.  But that's just wrong, AND, it doesn't match the Answer the government gave two years later, after Ocampo filed his lawsuit.

Ocampo actually proved his U.S. citizenship the same afternoon the agents arrived at his house and arrested him--his state identification showed who he was and DHS had the records showing when his mother naturalized when Ocampo was under 18. ICE released him only after the attorney Ocampo's mother hired called and not because of new documents. The attorney had no additional documents, suggesting ICE knew all along it had no case and folded quickly when called on their bluff.  By stating otherwise, the ICE agents lied to Morton and everyone else.

Also, what is the legal basis for holding him after he's asserted his U.S. citizenship and ICE has all the evidence it needs for confirming this? What about the revised policy indicating people claiming U.S. citizenship should not be held?


From a comment left on the Ocampo post:

Anonymous said...

These same agents illegally arrested my husband, a US citizen, born and raised here by US Citizens, and within our borders! I have been hoping you would file a civil rights suit against them and was glad to see you did. Rock on!

They took him to that same house. He spent a horrible night in the snake pit that is Sangamon Jail. I will be watching your case carefully and cheering you on!

May 30, 2014 at 12:55 AM

Mark Fleming at the National Immigrant Justice Center in Chicago is representing Ocampo.

The complaint is here.

The government answer is here.

Note that in the original narrative, ICE claims they held Ocampo until he produced documentation of his U.S. citizenship, and never denies he immediately asserted his U.S. citizenship, nor claims that on the date of his arrest he represented himself as a legal permanent resident.

But in their answer to the lawsuit two years later, the government claims Ocampo never asserted his U.S. citizenship until after he was held for six days and that six days after his arrest Ocampo's attorney informed Ocampo of his U.S. citizenship, claiming that before that Ocampo "represented to the Department of Homeland Security that he was an LPR."

Ocampo's story is consistent: Ocampo told ICE agents Glen Harrington and Michael Mitchell that he was a U.S. citizen immediately on their arrival to arrest him. The agents in Ocampo's presence spoke on the phone with his mother, who also told them that she and her father had naturalized and their son was a citizen.  The initial narrative elsewhere in the Morton release also indicates the ICE Springfield office did not have Ocampo's file, further undermining the credibility of the account in their Answer.

The ICE claims at different time frames contradict each other, but the pervasiveness of their inventions themselves is persistent, from the bottom up and the top down.  If any other organization were run in a fashion that financially incentivized lying to law enforcement in service of holding people without legal authority the leadership would be immediately charged with everything from RICO violations to kidnapping. The DOJ at least on occasion investigates these scenarios when it is local police agencies but ignores this daily, widespread malpractice by federal agents.

Analysis of Cases Adjourned Using a Code for Claim of U.S. Citizenship:
January 1, 2011 to Septbember 30, 2014

Clinic Research Assistant Elizabeth Meehan found:

-256 cases terminated following claims of U.S. citizenship

-51 cases closed administratively

-10 cases closed by ICE prosecutors
 
In sum, in 21% of all cases immigration judges at some point adjourned because of U.S. citizenship claims, the immigration judges wrote orders affirming the claims of the respondents.

In additional 5% (n=62), ICE abandoned the deportation proceedings, for a total of 26% of cases terminated or otherwise closed following claims of U.S. citizenship. 

For the underlying spreadsheet, see EOIR FOIA Case No. 2014-23528

These 1,219 cases are not the total number of cases in which respondents asserted U.S. citizenship, but a fraction of an unknown total.  Even though these data provide no information on the absolute numbers of US citizens in deportation proceedings they reveal several important pieces of information.

1)  109 U.S. citizens were in ICE jails on the date when their orders were terminated; an additional 47 had been in ICE custody on charges of alienage and were released before their final hearings.

2)  Those not in ICE custody prevailed in 44% of their claims of US citizenship (n=147 terminations, n = 334 never detained or released), compared with 12% percent for those who were detained (n=109 terminations, n = 886 detained).

3)  All 10 cases dismissed by prosecutorial discretion were for respondents with attorneys; 82% of cases closed by adjudicators for non-detained respondents had attorneys (n = 23 non-detained closed); and 50% closed by adjudicators for detained respondents had attorneys (n=28 total closed).

4)  The Oakdale, Louisiana Detention facility, where Andres was held, reported 74 cases adjourned because of claims of U.S. citizenship, of which 10 were terminated. 

  

2013 Detained U.S. Citizen Frank Serna Calendar: No Adj. for USC Claim

It is important to underscore that the FOIA dataset on which the above analyses are drawn is incomplete. It omits all cases in which respondents claimed U.S. citizenship and an immigration judge used a different adjournment code, e.g., one for seeking time to find an attorney, as happened in Andres's case, or that of Francisco "Frank" Serna, a U.S. citizen in ICE custody for over 13 months who contacted me about about his detention a week after the New Yorker published Morton's propaganda.

Immigration Judge Jimmie Benton coded the adjournments in Serna's case as being for adjudication of an application for a green card (I-130), not a Certificate of Citizenship (N-600).  So U.S. Serna, who TWICE had his deportation orders terminated because ICE could not prove alienage, does not appear in the EOIR release data as claiming U.S. citizenship.  (The references to Serna filing an application are all to his application for a Certificate of Citizenship.)





ANALYSIS
The higher rate of termination orders among those never detained cannot be explained by correlating this status with a likelihood of prevailing on their citizenship claims.  Deportation custody determinations are based on whether an individual is a "danger to the community" or a "flight risk." Congress requires mandatory detention in immigration jails of putative non-citizens convicted of an aggravated felonies following the conclusion of their prison sentences.  Those in detention pending deportation proceedings are more likely to be there because of prior criminal convictions than those who are lack a criminal record.  Previous research on U.S. citizens whose deportation occurred between 2003 and 2008 revealed they all were in ICE custody following their release from prison or jail.  

In other words, U.S. citizens who are incarcerated are more and not less likely to end up in removal proceedings than those who have no criminal record.  

Therefore, the lower rate of termination orders for those asserting U.S. citizenship while in ICE custody (12%), compared with 44% who prevail among those not detained, strongly suggests a false determination of the citizenship status for poor men who are in prison, as was the case for Andres Robles, as well as Robert Dominguez, and Demetrious "Jim" Koukolomates, whose cases are discussed below.

Finally, the release also omits data for those who never appeared in an immigration court, but who simply agreed to deportation or were released, for instance, that of U.S. citizen Jhon Ocampo.

Roberto (Robert) Dominguez
In 1999, when he was 19 years old, Robert, was released from jail in his hometown of Lawrence, Massachussetts, where he was born.  Instead of a bus dropping him off at the downtown court house, he was taken to various facilities run by then Immigration and Naturalization Service (INS); appeared in immigration court in the Batavia, New York detention facility; and, without an attorney, asserted he believed he was a U.S. citizen, but then backed down after being handed inaccurate documents from his INS file and was "deported," an option only possible for aliens. 

After 10 years of wrongful banishment to the Dominican Republic, Robert procured a U.S. passport and returned home.  In 2010, instead of actions consistent with Morton's claim that the government was redressing old problems, the government reinitiated efforts to deport Robert, including in 2011 revoking his U.S. passport.  

In the last two years, Robert's legal team, led by Andrea Saenz of the Cardozo Immigration Justice Clinic, has filed a lawsuit demanding the State Department recognize his U.S. citizenship. 

The complaint has copious documentation of Robert's birth in the Lawrence hospital,  including the  from his basinette with his name, Baby Dominguez, as well as an original photograph from the hospital, also with the name Dominguez.  



The government's Answer is to conjure TWO Roberto Dominguezes. To advance this fantasy, they will need to show by a preponderance of the evidence that there are two Roberto Dominguezes who were both born to parents living at the same address, 70 Cross Street, Lawrence, Massachusetts; both born in November, 1979; and that the Roberto Dominguez suing the government somehow obtained the bassinette tag, birth certificate, and infant photographs of the U.S. citizen infant Roberto Dominguez and is using these ORIGINAL baby records from someone with the same name, physical characteristics, and other biological markers of U.S. birth, including the plaintiff's circumcision (not done in this time frame in the DR), to fraudulently assert U.S. citizenship.

If this is hard to follow, you've read it correctly.

Voicemail messages asking for an explanation of the government's position in its Answer, left for Brian Ward, the lead trial attorney representing the State Department, part of a team of six U.S. attorneys bilking the U.S. taxpayers of hundreds of thousands of dollars, were not returned.

For more background, please go here.

The Complaint is here.

The Government's Answer is here.

Demetrious (Jim) Koukolomates

On February 19, 2015, an immigration judge in York, Pennsylvania, based on motions and evidence provided by Andrew Free, terminated an errant deportation order that has banished Jim from the U.S. for the last 12 years.  Jim was born in Greece in 1962. 

Jim immigrated to the U.S. in 1978, after his father died. Jim, when he was 16, automatically acquired U.S. citizenship when his mother naturalized. These simple facts on which the adjudicator relied when 2015 have been in the possession of the United States for over 35 years.

Order for Matter of Demetrious (Jim) Koukolomates, York Immigration Court, February 19, 2015.

According to Jim, the problem began in his criminal bond hearing for a drug charge in 1990, when the prosecutor argued that Jim was not a U.S. citizen and thus a flight risk. The prosecutor was so vehement that Jim began to doubt his citizenship himself, "I believed a new law was installed and maybe I wasn't a citizen." The prosecution was arguing that Jim had to be under 16 years of age to automatically acquire citizenship through his mother, but the law plainly states a cut-off age of 18.  

While in prison he had a televideo hearing with adjudicator Charles Honeyman in York, Pennsylvania.  Honeyman ignored the statute, went along with the false claims asserted by the INS attorney, and in 2002 ordered Jim deported. In October, 2003 INS deported Jim, then 44, to Greece, a country he had not seen since he was a child.

Koukolomates describes the deportation as a “kidnapping,” and the State Department’s indifference to his request for a passport, “no different from Stalin’s Russia.”  

Despite the February order terminating the deportation and stating Jim is a U.S. citizen, the Athens consular office still refused to issue him a passport.  

On March 16, 2015, attorney Free filed a lawsuit against Secretary of State John Kerry and Abigail Aronson, Consul, Citizenship Section, U.S. Embassy, Athens.  The complaint sought "relief to compel the government to adjudicate [Mr. Koukoulomates's] passport action."

Three weeks after Free filed the complaint, and 25 years after federal prosecutors falsely stated the law on U.S. citizenship, the U.S. government finally recognized Jim's legal status as a U.S. citizen.

The insistence on an inaccurate rendering of law by the federal prosecutor in 1990, as well as the INS attorney and adjudicator in 2002 were hardly anomalies.

According to a 2013 federal appellate court decision, U.S. citizen Sigifredo Saldana Irachata's application for a Certificate of Citizenship was denied and he was in deportation proceedings because "no decision maker has clearly applied the correct Mexican statutes to Saldana's claim of citizenship."  The court goes on to note:

In both Saldana's case and other cases involving similar situations, DHS officers and the Administrative Appeals Office ("AAO") within DHS have relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claims they say. (Sigifredo Irachata v. Eric Holder, Jr., U.S. Attorney General, Case 12-60087 (Fifth Circuit Panel, September 11, 2013.)

The court ridiculed the government's excuses:  

Though the government attempted to dismiss the error as a mere 'typo,' we cannot agree.  It is unclear what legal authority the BIA actually relied on in Reyes...[T]he BIA's mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from applying the correct law in subsequent cases.  That error has wound its way through multiple agency decisions in immigration matters, which are significant to the impacted individuals.The government's position is that simple typography in one specific case misrepresented the Mexican Constitution.  But the judicial panel states the government is disingenuous on this point.  

The court points out how the iterability of the government's invention produced the status and identities of numerous other citizens as aliens.  These decisions will ripple through the offspring of those registered on the basis of the BIA's version of the Mexican Constitution.

For over a hundred years, the U.S. government has been detaining and deporting U.S. citizens as aliens.  In recent years, approximately one in 100 cases in immigration courts will include someone whose deportation order is terminated because of claims of U.S. citizenship; an additional number of U.S. citizens make these claims but do not prevail and are deported, a figure that is about one half of one percent.

The basis for these estimates appears in recent work by Professor Rachel Rosenbloom at Northeastern University Law School, including her chapter forthcoming in Citizenship-In-Question: Forensic Challenges of Blood, Birthright, and Bureaucracy, Benjamin Lawrance and Jacqueline Stevens, eds. (Duke University Press), as well as earlier research cited above, along with the recent information presented herein: the procedures and cover-ups documented here indicate an absence of integrity and tolerance of systemic misconduct by ICE such that it would be shocking if U.S. citizens were not regularly detained and deported.

Likewise, some immigration court administrators and adjudicators, for instance, those in the Atlanta, Georgia, also perpetuate this problem.  (Forthcoming analysis of immigration judge misconduct complaints, undertaken with Professor Heather Schoenfeld and research assistants Elizabeth Meehan and Ary Hansen will elaborate on this.) 


Why This Matters

The detention and deportation of U.S. citizens demands attention for three reasons. 

First, the action is corrosive of the rule of law, so much so that one federal judge refused to recognize the "deportation" of North Carolina native Mark Lyttle to Mexico as such and called it"banishment."  If the government cannot operate in such as a way as to ensure its own citizens are not banished as aliens, it is abandoning any claim for our trust that the government will respect other rights that follow from this bedrock right to have one's citizenship recognized as such.

Second, the detention and deportation of U.S. citizens as aliens is the 900 pound gorilla in the mine, so to speak. That is, miners rely on canaries for sensitivity to toxic fumes that would take much longer to overcome human beings.  U.S. citizens have more robust Constitutional rights than non-citizens, especially in deportation proceedings, and thus their civic death reveals alarming information on the deportation industry's overall legal toxicity.  When
the U.S. government falsely dismisses the claims to legal residence *by U.S. citizens*, then that is an inherently alarming and not just cautionary index of its more general failures to recognize claims to legal residence by non-citizens.

Third, and finally, the government's response to these cases has been lies and propaganda, not firing the agents behind these actions, much less prosecuting them for false imprisonment or kidnapping.  The New York Times editorial board has rightly demanded radical changes of America's deportation system, including the immediate closure of the massive web of privately-run prisons.  

The conditions of unlawful violence and degradation inherent to the deportation machine are not only reprehensible in themselves, they also form the backdrop for the unlawful deportation U.S. citizens and other legal residents.

Changes Required

1.  The FBI's indictment of Denny Hastert for lying to them about private financial transactions suggests skewed priorities.  If the FBI wants to prevent assaults, robberies, and kidnappings of U.S. citizens and other U.S. residents in ICE custody, it should be prosecuting ICE officials and agents, including Ocampo's kidnappers Glen Harrington and Michael Mitchell, at minimum for lying twice, once in 2012 and a second time to the U.S. Attorneys handling their defense.  

2.An urgent short-term palliative would require government-funded assigned attorneys to those who are detained and in deportation proceedings. The cases referenced above occurred in the context of an adversarial system in which poor men of color are forced to battle the world's largest law enforcement bureacracy without even access to their own records that the government itself maintains and is using against them, often unscrupulously, much less professionals trained in deportation law and dedicated to serve as their advocates.  

3. Government Accountability Office Audit of Executive Office of Immigration Review record-keeping for errors and fraud.  

4. GAO Audit of ICE record-keeping for errors and fraud. 

5. More distant changes require allowing citizenship criteria based on residence and consent, not birth.
The problems above are not only about employee errors and fraud but reflect the impossibility of these categories for lives, histories, and countries that are in flux, mutually engaged, and not amenable to archaic classifications of the earth's residents as "aliens." A summary of the rationale for this appears here. For the theory and data, here's the book: States Without Nations: Citizenship for Mortals (Columbia University Press, 2009).

For more on the Deportation Research Clinic, Buffett Institute on Global Studies, Northwestern University, please see our website: http://buffett.northwestern.edu/programs/deportationresearch/

'What HE Said!': Eastern District of Louisiana Judge Affirms Plaintiff Brief, Denies Government Motion to Dismiss Deported U.S. Citizen's FTCA Claims

On August 4, 2014 Andres Robles, through his attorney Andrew Free, went on record with a motion explaining why the court had jurisdiction to hear his case under the Federal Torts Claims Act.

Two days later district court judge Carl Barbier in Louisiana endorsed it.

The one-line decision states: "For the reasons outlined in Plaintiff's Opposition, IT IS HEREBY ORDERED that the government's Motion to Dismiss for Lack of Jurisdiction (Rec. Doc. 18) is DENIED."

(Free's 15-page motion is instructive reading for anyone wanting to sue DHS for malicious prosecution.  See below for full pleadings.)

U.S. citizen Andres Robles may pursue redress for his country's refusal to recognize him as a citizen, leading to his detention, deportation, and further Kafkaesque ordeals from the persistent incorrect entries in federal databases.

For the original complaint and background, please go here.

The more recent motions from July and August, 2014 are here:

Government Motion and Exhibit (Defense/dates of filings)
Memorandum in Support of Motion to Dismiss (07/25/2014)
Exhibit-Acuna Declaration, noting June 2014 update of records (07/25/2014)

Andres Robles Motion and Exhibits (Plaintiff/dates of filings)
Response In Opposition to Motion to Dismiss (08/04/2014)
Exhibit 1- Order in Ortega (08/04/2014)
Exhibit 2- Order in Ibrahim (08/04/2014)

Judge's order

More...
For details on Andres's case from when States Without Nations broke the story based on information from outraged attorney Larry Fabacher, please read the Andres Robles tag, which includes his
interview by NPR's Story Court (along with his sister Maria) and his interview on Al Jazeera English.

(Full disclosure: lucky for me, Andrew Free also is my FOIA attorney.)

Al Jazeera Covers Deportations of Esteban Tiznado and Andres Robles

Oysterman Andres Robles, acquired US citizenship in 2002 when 14 years old, 

deported in 2008, 

Social Security number still not cleared in E-Verify

Adam Raney of Al Jazeera television put together a terrific segment documenting the deportations of Esteban Tiznado and Andres Robles, whose stories were first reported here.  For background on Esteban's case, read here; for more on Andres, read here.

http://governmentillegals.org/RoblesComplaint.pdf

On behalf of Andres, Attorney Andrew Free filed on March 26, 2014 a complaint requesting the federal government fully rectify its mistake and also award damages.  The complaint provides a terrific narrative of Andres's ordeal.  It also adds to the database of federal immigration lawsuits and judicial orders in which the word "Kafkaesque" appears.  (Attorney Free also represents me in FOIA cases, though not any involving Andres.)

Esteban is now finishing up a short sentence in the custody of CCA Central Arizona, part of their vertical integration plan: first they lobby Congress for a 34,000 bed/night mandate;  ICE, incentivized to fill these beds, assesses agent performance on the basis of the quantity of arrests, not whether they are lawful; then, when US residents, many unlawfully deported, try to return, they end up in CCA's federal prisons, after convicted of Illegal Reentry (18 USC 1326)  - this being the population that has long surpassed drug offenders as the largest group in federal custody.

Next week Esteban again will be released from criminal custody, again deported, and again attempt to return home.  Each time he is locked up his body becomes weaker, but his will to return home remains as strong as ever.

Correction: An earlier version indicated Andres still had not obtained his Social Security card.  This is not correct.  He does now have his card.   In the years following his return from Mexico, Andres and his sister Maria had r attempted to obtain a social security card for him,  but it never arrived.  Each time they were told to fill out a new application.  After several attempts over more than a year, the card did finally arrive; however, the linked databases mean any E-verify inquiry will indicate his deportation and thus the wrongful deportation may continue to pose problems for him.

Deported U.S. Citizen Andres Robles Files $1.5 million Claim Against ICE

From sworn statement of Andres Robles, October 9, 2008
 taken by ICE agents interviewing Robles in a Thibodeaux, Louisiana jail; 
released June, 2013 

Documents recently released to me under the Freedom of Information Act confirm what Andres told me over the summer of 2011 while he was hiding from gang violence at his grandmother's home in Mexico.  He explained then that he told the ICE agents and the immigration judge, John Duck in Oakdale, Louisiana, that he was United States citizen, but they failed to check and deported him anyway. 

Ozment Law Files Complaint for $1.5 million
Andrew Free, an attorney with Ozment Law in Nashville, Tennessee, read about Andres's plight on this blog a few months ago.  Ozment Law then went down to Louisiana to meet Andres. (Ozment Law also has been representing me in FOIA litigation.)
On the occasion of filing on June 28, 2013 a claim demanding the government pay Andres for his illegal arrest and detention, false imprisonment,malicious prosecution, intentional infliction of emotional duress, and wrongful deportation under the Federal Tort Claim Act, Elliot Ozment stated,

Now is the time for the United States to make amends for its mistreatment of Andres and his family, and take immediate measures to prevent it from ever happening again.
Just as important, our nation's insatiable deportation machine must immediately conduct a top-to-bottom review to explain why it keeps detaining, kidnapping, and banishing its own citizens -- who are predominantly men, women, and children of color.
This troubling practice must stop. And until it does Andres, his family and thousands who are similarly situated will work to hold government officials accountable.
Andres's older sister Maria has been the force behind making sure the government's cruel treatment of her brother and others is not forgotten. Shortly after she heard about the claim being filed I asked her what she hoped to obtain from this. "Mainly to get him justice. The attorneys will get the attention of the people who are doing all this. They need to do more research instead of taking the easy way out."

Forensics of a Wrongful Deportation
In 2008, Andres Robles, then 19, was falsely imprisoned and then banished from the United States after the government ignored his sworn statement that he was a U.S. citizen.  The document has several anomalies, contradictions, and inaccuracies.

PARENTS ARE AND ARE NOT UNITED STATES CITIZENS
In one place it shows his  parents are both U.S. citizens

while another section in the same document states they both were legal residents:

TECS REPORT SAYS ANDRES A US CITIZEN

 ICE also ignored the information in its own TECS database indicating that Andres was born in Mexico and that he was a United States citizen.

 

WHAT DOES ANDRES WANT?

When we spoke around noon today he was looking forward to Maria joining him at his parents where the family was planning a July Fourth celebration on Andres's day off from working on an oyster boat. He pointed out that for him the trauma of the deportation is still ongoing. Speaking somewhat haltingly, at pains to describe a situation that defies explanation, he told me, "I can't get my driver's license because they ask for the social security card. But I can't get the social security card. I've been down there five times and it still doesn't come. They ask me who filled out the form and then they send it again. The last time they asked me who did it and it was the person who asked me."

The folks at the social security office can't tell him why the social security card isn't there, but I bet the folks at ICE could.  The same TECS database that correctly indicated in 2008 Robles's US citizenship now lists him as a citizen of Mexico, a date that would have been seen by whoever consulted it in 2012, presumably proximate to one of the time frames when Andres was trying to obtain his social security card.  

Robles is shocked and deeply grateful to attorney Free and his colleagues at Ozment Law for taking this on, "I didn't expect this.  It's pretty exciting."

ICE Still Detaining and Deporting US Citizens, And Still Lying About It

On June 7, 2013 an immigration judge terminated deportation proceedings for a 54 year old United States citizen who had been locked up without a lawyer for 14 months, one of three individuals to contact me in the last two weeks from Houston, SPC.  

ICE and the Corrections Corporation of America that held Mark Lyttle in 2008 are still holding US citizens.

The full letter from FS I received yesterday is here, redacted because he has not given me permission to publish his name.  It is just a page.  Anyone who thinks Mark Lyttle's case is a one-off should read this letter and then read why this is still happening.  As long as poor U.S. citizens of Mexican descent, or the perception they are of Mexican descent, are locked up, ICE is going to be falsely imprisoning and banishing U.S. citizens.

 On April 29, 2013 The New Yorker published an article by William Finnegan "The Deportation Machine" about Mark Lyttle's deportation to Mexico.  (More later on Finnegan's plagiarism of my work, and the New Yorker's bizarre apology and inadequate efforts at redress.)  John Morton, Director of Immigration and Customs Enforcement, replied indignantly to the article, claiming new "stringent safeguards to protect against the possibility of a citizen’s detainment or removal..."

As soon as I read Morton's inventions, I knew that I would again need to start documenting U.S. citizens being detained and deported.  ICE is lying today just as they did when I first started doing this research in 2008.  ICE propagandists have gone from denying that it ever happened -- that was the company line in 2008 and 2009 -- to now saying that they stopped doing this.

Alas, it was as easy to do this last month as it was in 2008 to 2011.

Daniel (not his real name)
 A few weeks ago I came across an April,  2012 Board of Immigration Appeals (BIA) decision affirming the appeal of a respondent who was indignant that EOIR adjudicator Jimmie Benton refused to recognize his claim for U.S. citizenship because he did not know the law on this. 



I called the locator system, learned Daniel was still detained and wrote him a letter.  The letter was properly addressed but not accepted by the CCA mail room because my research assistant had not used an "alien number" on the envelope -- on what legal grounds can CCA refuse a properly addressed piece of mail just because it lacks some weird code they use and that most people cannot obtain unless they are able to contact the person they are writing?

In the event, Daniel had just had the remanded hearing, again before Benton, who didn't understand the law in 2012 and still didn't understand it in 2013.  Daniel told me over the phone just before he was deported that Benton said that he would only terminate proceedings if Daniel could produce a Certificate of Citizenship, something that costs $600.  Daniel is indigent.  He told me that it took several months for his request for a fee waiver to be approved and he was still waiting on the final Certificate.  He had all the necessary underlying documents but Benton refused to consider them.   (FS also did not have a Certificate of Citizenship but in his case the IJ relied on the underlying documents and on that basis terminated the proceedings.)

(To be clear, a Certificate of Citizenship is NOT a requirement for U.S. citizenship.  Anyone who is a U.S. citizen by birth has that status because of meeting the underlying criteria, e.g., birth in the United States or birth outside the U.S. to a parent or parents who are U.S. citizens.)

A few days after public affairs in Houston was alerted to my request to speak with Daniel, he was shipped out to Juarez, Mexico.  There he will be facing the same problem that Andres Robles encountered after ICE deported him to Mexico in 2008.  Three years later he was sent a letter, care of his lawyer, saying that his application for the Certificate of Citizenship had been approved but that it would be impossible for Andres to pick it up because, the USCIS Field Office Director acknowledged, the government had deported him.    (In the last few weeks, thanks to the persistence of his sister, Maria, Andres obtained the representation of Andrew Free of the Ozment Law Firm and will be filing a civil rights lawsuit against the thugs who falsely imprisoned and then banished Andres.)

Robert (not his real name)
Robert's situation is somewhat more complicated, not because of anything he did but because he lives in a primitive era of ethnic cleansing, such that his mother and grandfather were treated by their government as foreigners and not the U.S. citizens they really were.

Robert's great grandmother was born in Texas in 1902, and her father and mother also were born in Texas.  She lived in Mercedes, Texas but gave birth to her son, Robert's grandfather, Gino, in Mexico.  Gino was by law a U.S. citizen at birth but instead of being recognized as such, when he entered the United States he was given a green card and then later, long after his daughter,  Robert's mother Rachel was born, became a naturalized U.S. citizen.

Rachel then also grew up with a green card.  I've spoken several times with her and Robert. They had hired an attorney but he didn't understand the possibility of the acquired citizenship.  Robert has a forthcoming hearing.  Meanwhile we are trying to assemble the documents underlying these claims so his attorney can present the probative evidence that should trigger his release.  This is actually the responsibility of the U.S. government--Morton's 2009 memorandum requires ICE to conduct investigations into claims of U.S. citizenship.  His family's green cards and naturalization means all the underlying birth certificates and marriage certificates are already in the Citizenship and Immigration Service database, but Robert's been locked up for over a year.  He said his deportation officer did nothing to help him.

Robert and Daniel have signed privacy waivers and we will be obtaining their files shortly. I also will be writing to FS and will be asking him to sign a waiver as well.  Hopefully we can find an attorney who will help him hold the government accountable for his false imprisonment as well.  (FS had already been through this once in 2004 when an IJ then as well terminated the deportation order.)

As I've been writing, the only way to follow the U.S. Constitution and prevent U.S. citizens from being in the unlawful custody of ICE is to provide all detained respondents assigned attorneys.  As these cases show, generations of racial profiling have deprived people the status and thus knowledge of their U.S. citizenship. The U.S. government has been stripping people of their U.S. citizenship and has an obligation to stop doing this; that's only possible if everyone in these ICE jails has an assigned attorney.

Finally, it is urgent that we not lose sight of the big picture: the borders of the nation-state are arbitrary and it is as ridiculous to restrict our movement on their basis today as it was to confine people to parishes in England and transport them to America when they were caught in London without a pass.

The reason I focus on the detention and deportation of U.S. citizens is the same reason that slavery abolitionists supported criminal prosecutions for the especially brutal treatment of slaves.   The prosecutions forced the public to think about what slavery looked like in practice.  The unprovoked shootings of slaves and detentions and deportations of U.S. citizens are expressions of these respective institutions when they are doing what they are supposed to do, and not rare aberrations.   Slavery and deportations are barbaric; it is as impossible to deport people without unlawfully harming respondents, including U.S. citizens, as it was to have slavery without unjust, horrifying violence.