New FOIA Lawsuits

from TVtropes.org

"from Matter of C.B.

I decided it was time to push back against the slow poke or nonresponsive replies to my requests for information under the Freedom of Information Act.  Sam Niiro and I are now filing pro se lawsuits.  Sam is just finishing his first year as a Northwestern undergraduate.  And many thanks to attorney R. Andrew Free who is taking over after we file them!

Complaint Against the Executive Office of Immigration Review
The first complaint, filed in April, was to obtain the case docket for "Matter of C.B." an August 15, 2012 Board of Immigration decision that, pathetically, had to be written in order to tell a Department of Justice attorney that respondents really do have a right to an attorney.   I requested the hearing history because I wanted to know how long it took someone locked up to have this due process right affirmed.  The coercion of detention pressures so many people to abandon their legal claims to residence and I wanted to document what this wait looks like.  

I had received precisely this information in response to a previous FOIA request, with the respondents' names redacted. But this time around the geniuses at the DOJ said they did not maintain this information.  (The problem is not terminology because I used the exact same language on both requests, as my complaint points out.)

Finally, please note in this decision and all BIA decisions the gross flaunting of the rule of law the EOIR perpetuates when it hides the names of the immigration judges, another symptom of the kangaroo court mentality among the folks who run that agency.  In exchange for the great power judges have they must submit their decisions to public scrutiny.  But of course kangaroo courts can provide this discretion and cloak these DOJ attorneys in the hangman's garb of anonymity.

Complaint Against the Department of Homeland Security, Office of Inspector General
The second complaint, filed a couple weeks ago, is on behalf of a woman who in 2011 was falsely imprisoned, kidnapped, and robbed by DHS employees when she was returning from Nigeria.  The Office of the Inspector General conducted an investigation that resulted in her being returned to the United States at government expense but the OIG is not releasing the underlying investigation results that led to this decision.   I'll be posting more details on her situation shortly.

EOIR, MaryBeth Keller email
Next up is the email to and from EOIR attorney MaryBeth Keller about the coverup that she participated in pertaining to the investigation of my own misconduct complaint against William Cassidy, the Atlanta immigration court attorney who deported U.S. citizen Mark Lyttle and then illegally failed to allow us to observe hearings, ordered me removed from the building, and then lied about it.

Ironically, Keller, point person for misconduct investigations, herself failed to comply with the FOIA law for over a year.  The EOIR is not among the components that consider employee FOIA responses in their performance reviews, something that needs to change.  Keller is the EOIR official who sucks up the misconduct complaints against the immigration judges and then, in violation of the statutes, helps her  colleagues sweep them under the rug.  There are statutes that require her to forward these complaints to the DOJ Office of Professional Responsibility or Office of Inspector General but last time I checked she and the rest of her colleagues were regularly violating these statutes.

ICE Agents Deported Chicago Residents Without Criminal Histories Based on Unsubstantiated Claims of Gang Membership

Federal agents deployed through a special "Gang Surge Operation" have been arresting and deporting people based solely on unreviewed allegations of alienage and gang membership, including juveniles.  Moreover, according to the Chicago data, none of the program's key objectives are being met, an outcome ignored by the agent who reviewed this and indicated satisfaction that U.S. residents merely accused of gang membership and minor crimes were being deported with neither criminal nor immigration hearings.

In 2011 the Department of Homeland Security's (DHS)  Office of Inspector General (OIG) issued a report evaluating how effectively Immigration and Customs Enforcement's (ICE) Enforcement and Removal Operations (ERO) was identifying so-called criminal aliens and ensuring their deportation.  The report was focused on identifying false negatives, that is, whether immigrants with criminal records were not being flagged for deportation.  In reviewing agency actions, the OIG described a program that appeared to be deporting people who had no actual criminal record, if they were "alleged gang members."

Concerned about the due process violations this might occasion, I submitted a request under the Freedom of Information Act for the OIG to release to me the files of the Gang Surge Operation they reviewed.  They did not release these but they did release some spreadsheets and analysis.

The FOIA response I received reveals that ICE was plucking people off the streets of Chicago who had no criminal history, asserting they were breaking laws that should land them in state courts and jails, and then, instead of turning them over to state or local authorities, throwing them out of the country using Stipulated Removal Orders.  Also, most of the alleged violations were inconsistent with the high falutin' mission of attacking dangerous transnational cartels trafficking drugs and weapons, but were for relatively benign events, like "defacing private property," (graffiti) or possessing small amounts of marijuana.

Here is the first part of the record from the screen shot above, the first two columns blacked out are the person's first and last names.  The column with the word "none" is for the codes of previous arrests from the NCIC database.

That is, instead of the police arresting people and then, after they have been convicted and served their sentences, turning them over to ICE, ICE was arresting people, including juveniles, and then deporting them based purely on allegations of crimes and gang membership and without any administrative or judicial review.

Moreover, although a main concern of the OIG research was to learn whether people being released on their own recognizance were committing crimes and not showing up for their hearings, 25 of the 27 who were deported through STIPs had no prior orders of removal.  This was their first time in ICE custody.  The agent reviewing this data:  1) describes a policy to deport alleged gang members who have never been convicted of a crime; ("..discussed that unless there is a conviction, subjects are often released," in other words, discussed the presumption of innocence and how Gang Surge Operation could supersede this;  2) grossly mischaracterizes the program success by collapsing the number of individuals whose records required mandatory detention with those who signed Stipulated Removal orders, thus misleadingly suggesting ICE was deporting recidivist gang members, and overlooking the extent to which ICE was deporting non-criminals without hearings; 3) recommends OIG should no longer review whether those arrested through Gang Surge Operation have records consistent with mandatory detention.  

The analyst writes: "I found that 33 case files indicated that the individual was subject to mandatory detention and 14 files indicated that the custody decision was discretionary."  But then later the analyst states, correctly, "Of these files, 33 were instances where detention was mandatory due to criminal history or that the individual had signed a stipulated removal..." (emphasis added). The more accurate breakdown is that only 7 of the individuals required mandatory detention and 40 did not, among whom 25 nonetheless signed stipulated orders of removal and were deported and another signed a stipulated order of removal and then an immigration judge released him or her.

From OIG Report Referencing Gang Surge Operation (pp. 11-12): 

ICE’s Office of Investigations arrested 1,785 gang members and associates, criminals, and other aliens during its 2009 Gang Surge Operation. The operation was part of the larger, nationwide Operation Community Shield, which targeted transnational street gangs involved in human smuggling and trafficking, narcotics smuggling and distribution, weapons smuggling and arms trafficking, and other crimes. According to ICE’s Office of Investigations, violent transnational criminal street gangs represent a threat to public safety in neighborhoods across the United States. ICE’s Office of Investigations generally recommends that ERO detain gang members to protect the public.

We reviewed 52 gang member arrests during the Gang Surge Operation in 2009. Upon arrest, ICE turned the alien gang members over to ERO custody for removal. For each case, we determined whether ERO overturned ICE’s initial custody recommendations and released the aliens. Of the 52 arrests, 47 (90%) aliens were subject to mandatory detention or ICE detained them because they posed a danger to the public. ICE’s Office of Investigations recommended that ERO release three (6%) aliens because they were juveniles (two) or participating in an ongoing ICE investigation (one). The remaining two (4%) aliens were incarcerated in federalprisons or local jails. We did not identify cases where ERO overturned ICE’s initial custody recommendations. However, we determined that immigration judges later released six of the aliens from detention, and ERO released one into an ATD program.

If you know a little bit about how ICE agents really work, i.e., their own self-acknowledged "ruse operations" in which they impersonate everyone from insurance agents to Mormon missionaries, how they stake out church parking lots where Latinos go and write down license plate numbers, or hire local off-duty sheriffs to use their local law enforcement vehicles to pull people over for pretextual traffic stops and then hand them over to ICE, then this sounds lots of alarms.

The language of a "threat to the community" based on alleged gang membership alone and not criminal convictions is a huge red flag for potential ICE abuses.  (The doctrine of pre-emption is not just a problem in international law.)  I wondered, who exactly are these people ICE is arresting under its Gang Surge Operation and how can they be deported if they don't have any criminal records? And then I filed a FOIA request.

In late October I received a reply.  By coincidence the sample of the nationwide program OIG studied was based on the program in Chicago.  Here's what I learned:

FROM FOIA/PA No 2012-180:
-Among the 52 Chicago residents arrested through the Gang Surge Operation,  27 were deported on the basis of Stipulated Removal Orders (STIPs) -- meaning they signed a document in which they relinquished the right to an immigration hearing -- but only seven had been convicted of any crime, and none of the 27 were charged with the alleged violations supposedly triggering their ICE arrests.  

-Many of the individuals deported through the STIPs have traffic stops or other minor violations associated with their ICE arrests.  No legal status is provided, so it is unclear how many were legal residents, overstayed visas, or had entered without inspection.

In Gang Surge, ICE could, and apparently did, pick up people, including kids, told them to sign something, and shipped them out of the country, even if they had broken no laws.   (One entry says the individual has no criminal history and gives no reason at all for the arrest but lists the individual as a "Latin King.")  In two cases ICE released juveniles after their arrests--there is no information on how long they were held--but an additional two on the list of those who signed STIPS were arrested by ICE supposedly because of "possession of alcohol by a minor" and "possession of liquor by a minor."  One subsequently was "bonded out by an IJ" but the other was deported.

Again, the OIG evaluation focused on whether ICE was releasing criminals, and had no comment at all on these cases of juveniles signing stipulated removal orders.  Also, though one may be a minor and not a juvenile under state law for possession of alcohol, the definition of a juvenile in federal law, which governs deportation proceedings, is anyone under 21.

What is the definition of a federal juvenile delinquent? (top)

A juvenile is a person who has committed an act of delinquency, but has not attained his/her 21st birthday and is sentenced under the Juvenile Justice and Delinquency Prevention Act (JJDPA) (18 U.S.C. 5031 through 5042). In corrections, the term juvenile, juvenile offender, juvenile resident, student, and resident are used interchangeably and are considered synonymous. For more information, visit http://www.ojjdp.gov  (from the Federal Bureau of Prisons)

Most of this information I requested was not released to me and the material I received was highly redacted. I will be filing an appeal and will perhaps learn more about how this program was and is being run.

DHS at Princeton Rejects USCIS Efforts to Table Same-Sex Green Card Applications Pending DOMA Challenge, Obama Ignoring Civil Rights Violations

Yesterday's March 28 round table on "Deportations and National Security" organized by Patricia Fernandez-Kelly with the support of several Princeton University co-sponsors, moderated by the Pulitzer-prize winning Julia Preston who has been covering immigration law and politics for the New York Times, staged a conversation among high-level officials from the Department of Homeland Security (DHS), Princeton's pro civil rights congressman Rush Holt (D-NJ), several directors and leaders of national and local immigration and civil rights groups, as well as academic experts on deportation and immigration policy.

At one point, Princeton University graduate Josh Vandiver popped out of the audience, identifying himself as the "American half of a same-sex couple" involved in a high-profile fight for his spouse's green card. He was following up on Rep. Holt's questioning of John Sandweg, DHS Counselor to the Secretary, about whether, in light of Attorney General Eric Holder's announcement that his office's finding that the Defense of Marriage Act (DOMA) is unconstitutional the DHS would continue to deny U.S. citizens with same-sex spouses the same benefits of marriage green cards for their loved ones available to different-sex spouses, "what policy is being formulated that would respond to the activism we've done?"

Mr. Sandweg replied, "The president's directive is to enforce the law as currently written until a court decision. There are a couple of cases we are holding in abeyance, but we are going to enforce the law until DOMA is declared unconstitutional." His colleague Seth Grossman, Chief of Staff for the DHS Office of the General Counsel backed this up, "What the attorney general says is that as a litigation position he will not defend [DOMA] in court," but his decision "makes it crystal clear that the executive agency must enforce the law as it did before."

In saying this, DHS stepped on hopes raised by a story broken in the Daily Beast indicating that two regional offices of the United States Citizenship and Immigration Services were no longer rejecting marriage green card applications from same-sex couples, and would approve these pending authorization from the DHS:

Sarah Taylor, who heads the Washington district for USCIS, gave a presentation on Wednesday night to more than 100 members of the local AILA chapter. During a Q&A session afterward, she was asked whether her office had put cases involving same-sex marriages on hold. Taylor said that it had, according to Brenda Oliver, the AILA chapter’s chair. The lawyers in the room, Oliver added, responded with claps, smiles, and cheers.

Her colleague Greg Collett who runs the Baltimore regional office said the same, the story reported.

The fact that government attorneys running these agencies contemplated the approval of same-sex green card applications suggests that the directive is not "crystal clear" in requiring DHS to violate the civil rights of same sex couples, but that the agency is making a political decision, one that would only be made at the behest of the White House.

[UPDATE confirming DHS plan to overturn USCIS abeyances: see Tuesday article in Metroweekly, "DHS Official: Bi-National Immigration Case Abeyances Could End Within a Week."]

This was just one very obvious example of the Obama White House failing to take advantage of its discretion to decrease deportations and increase the protection of U.S. residents' civil rights that drew concern, eloquently articulated by Lucas Guttentag, founding national director for 25 years of the ACLU's Immigrant Rights Project, and now a Robina Foundation Distinguished Senior Fellow in Residence at Yale Law School.

In response to frequent statements by the DHS officials that they were bound to "enforce the law" Guttentag pointed out that in light of DHS discretion and the absence of any immigration legislative reform in the near future that might incentivize bumping up numbers in order to attract Republican support, the harsh policies were pointless: "If one thought comprehensive immigration reform were around the corner," massive arrests and deportation might make sense, "but given there is not going to be significant legislative reform what's the role of presidential leadership on this issue?"

Guttentag added later:

It is a mistake for the administration to view this solely as a matter of legislation. [The DHS] could adopt regulations on the adjudication of waivers so people could safely apply for the immigration status for which they are eligible. They could adopt court interpretations to get individual hearings at which their danger and flight risks are adjudicated.

Of course even these high-ranking DHS officials were not the right audience for his astute insights and suggestions. They were not making these decisions. The White House is. If Obama wanted the DHS to use its discretion, Sandweg and Grossman would be in Princeton making the sort of announcement their counterparts at the USCIS were making. (The USCIS has to defer to the DHS Office of General Counsel instruction and they were the ones in Princeton saying, forget it.)

The fact that people such as Guttentag and Rep. Holt were having this conversation at a Princeton roundtable and not in the White House was perhaps the most discouraging takeaway from the event. An activist who attended and has been to these White House meetings said the relevant staff in the White House listen but no one is supporting their proposals. The individual lacks "confidence that meetings at the White House are useful to move proposals forward."

That the Obama administration is not taking advantage of its ability to protect civil rights by virtue of running the government, and is indeed going in the opposite direction by using its discretion to implement nationwide the InSecure Communities program by 2013, means that Obama is focused on a craven calculus of his re-election, and not the civil rights of millions of people whose lives are being crushed by his policies.

Immigration Judge in Bed with DHS: Not Just a Metaphor

I received an email today from an immigration law practitioner in Colorado pointing out yet another strange understanding of justice on the part of the Executive Office of Immigration Review and the Department of Justice: hire an immigration judge who is married to a high-ranking Department of Homeland Security prosecutor in the ICE Denver field office, the same one where the newly appointed adjudicator was an assistant chief counsel.

Hard to understand how justice can be blind when the new Denver immigration judge Eileen Trujillo is not only a former DHS prosecutor but also married to the ICE Deputy Chief Counsel in Denver, Donald O'Hare.

Here's the message from the practitioner:

"Here in Denver, a new immigration judge has been hired and will begin taking cases in December 2010, Judge Eileen Trujillo. Although she may be an excellent judge, there is a major concern about her on the bench that EOIR seems to fully be ignoring. That is: She is married to the #2 in charge for the Department of Homeland Security, government counsel.

Yes, the incoming judge is sleeping with the boss of the government prosecutors and that is apparently not a conflict for EOIR. I don't know how, since it is one of the most transparent and visible conflicts in all of the law. Apparently all fears should be allayed by the verbal assertion by the new judge and her husband that they will not work on cases that are in front of each other. Huh? Impossible! He reviews ALL cases as a supervisor and her conflict can reach the whole bench here in Colorado.

The story remains to unfold--someone from EOIR's Chief Judge office is coming to speak to AILA here soon, but like I said, cases are already scheduled before the new judge. For all intents and purposes, immigration lawyers may be forced to one-by-one request the judge to recuse herself from their cases and face the wrath (by all sides) for their requests."

Clandestine ICE Subfield Offices

12/22/2009 UPDATE: For a recently published article inThe Nation magazine, please read "America's Secret ICE Castles."

For a list of ICE subfield offices and their phone numbers sent to me in response to a FOIA request, please go here.
-----------
A few weeks ago I was driving with Mark Lyttle to some of the government offices that had kidnapped him, stripped him of his rightful identity documents, rendered him stateless, and deported him to Mexico. (For more on how Mark, 33, born in North Carolina, was deported, please go here.)

One of the places we stopped was an address on several of the documents issued Mark from an ICE office in Cary, North Carolina. When we first arrived at the industrial park in a suburb of Raleigh, I thought google/maps had led me astray. 140 Centrewest Court was just next to a production plant for Oxford University Press, and off a main road with some gated communities. There was no sign indicating an ICE facility.


When I started to express some doubts Mark said, "No, this is it. That's one of their vans." He pointed to a white van with no marking and no windows behind the driver's seat. He recognized it because he'd been driven in one like that, in shackles and handcuffs. (It's not in these photos, alas.)


We continued toward the end of the road and found ourselves behind 140 Centrewest Court, at the far end of the development, adjacent to at least 15 unmarked white vans identical to the one we'd seen in front.

There was no sign anywhere indicating that this was a government building, much less a place where people were being held by ICE in transit to larger facilities.

Though there was a sign suggesting one might be given travel documents.


When I returned to Berkeley I called up some folks to see if I could learn more about these secret sites. Kathy Purnell, an Immigrant Rights Fellow at the ACLU in Georgia told me that she'd read something about them in a recent report by Dora Schriro, "Immigration Detention Overview and Recommendations" (October 6, 2009).

According to the report, these offices are used to hold people for up to 12 - 16 hours and are used for "84% of all book-ins." The subfield offices are below the legal radar so it would be impossible for anyone to know the conditions and if the limits are enforced.

I called ICE and requested a list of what the report says are 186 subfield offices.

First I was rebuffed. Temple Black, an ICE public affairs officer, checked with his supervisor and told me that these locations were "not releasable." He said the list was "law enforcement sensitive." Around the time he told me this he had a family emergency and left town. Mr. Black put me in touch with someone else at ICE who did release the list to me.

(I'm still not sure of the list's official classification. Mr. Black told me today that he was told the list was law enforcement sensitive and that he couldn't remember anything else, nor did he have information on why another individual would release the list.)

The list is not complete (it has 174/186 locations) and at least one of the addresses is not accurate. I have requested a complete list and am waiting for that.

I circulated the list to various civil rights and immigrant rights groups, including Detention Watch Network, the ACLU, and Human Rights Watch. I also shared it with about a half dozen attorneys who work on immigration law enforcement. No one had previously seen it. Some of the locations are known detention centers and federal buildings but many are like the place I saw in Cary: unmarked buildings with unmarked cars housing agents who themselves travel incognito.

For more on what's happening at these places, and the response from activists and attorneys, stay tuned for an article that will be appearing shortly in a national magazine. Meanwhile, feel free to stop by and say hello.

U.S. Citizen Obtains His "Alien" File: Record of Government Misconduct

Today Mark Lyttle, 31, a U.S. citizen who was kidnapped and rendered stateless by numerous government agencies as part of his illegal deportation to Mexico, obtained a copy of his file from the Atlanta Immigration Court. (See Atlanta Immigration Court for background.)

Mark's file includes many of the documents from Immigration and Customs Enforcement (ICE) that resulted in his deportation. During our time together in the last couple of days Mark also shed new light on the ignorant, racist, bureaucrats who did this to him, as well as his experience abroad. He walked about 200 miles in El Salvador, drinking leftover sodas on the roadside because he remembered his brother in the army told him how important it was to stay hydrated.

Mark is very resourceful about certain things and much less so about others. He's also very open and thoughtful. It's been fun hanging out with him.

HIGHLIGHTS FROM MARK'S "ALIEN" FILE AND CONVERSATIONS
1) Mark thinks that his problems started at the Neuse (pronounced NOOSE) Correctional Institute in Goldsboro, North Carolina at the end of August, 2008,when he met with a social worker doing a standard intake diagnostic interview. Mark said, "She said, 'We're curious about the name 'José' because it's a Hispanic name." Mark said she had said something in the computer attributed this name to his father. Mark's adoptive father's name was Thomas Lyttle, now deceased, and Mark's biological father's name is equally Anglo-sounding and remote from "José."

Mark replied, "My name is Mark Daniel Lyttle. I don't have a Hispanic name." The social worker told him, "'We're going to check that out. We're going to contact Homeland Security.' I said, 'Go ahead. I'm going to contact my family so I can protect myself and make sure precautions are taken.'" He said he was puzzled because, "They had my social security number; that's the second time I was there. They didn't do that the first time I was there, five months prior."

(As far as I understand, Mark's criminal record, including the two violations Immigration Judge-For-Now William Cassidy, see previous posts, mentions in his deportation order, all stem from his time in mental institutions and halfway homes. His mother, Jeanne Lyttle, a health care professional, told me that the staff would secretly tell her that the employees would regularly provoke Mark and other patients. After the patients physically responded, the staff would press criminal charges.)

The social worker at Neuse asked Mark to sign a document. Mark refused and she said that his signature was not needed for the referral to ICE. Shortly after that he was interviewed by the ICE agent who told him his name was "Jose Thomas" (sic).

Mark's family had moved outside the state since he was incarcerated; he couldn't find them and they couldn't find him.

2) Mark's Notice to Appear was issued on November 5, 2008, two days after Mark had signed a sworn statement that he was a U.S. citizen. The Notice to Appear states, "you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." There is no evidence provided to substantiate the allegation, just the charge.

The form also states that he is deportable because of criminal convictions.

It was signed by Tracy Moten at the Stewart Detention Center in Lumpkin, GA, where Mark was held. Moten is a Supervisory Detention & Deportation Officer, and another form indicates she was the examining officer. Mark told everyone he met he was a U.S. citizen, so presumably that includes Moten.

3) A longer document, the "Record of Deportable/Inadmissible Alien" (I213) also was prepared on 11/5/08 and is the document referenced by Cassidy. This document states in capital letters:

"SUBJECT CLAIMS TO HAVE BEEN BORN IN THE UNITED STATES BUT DOES NOT POSSES [SIC] ANY DOCUMENTATION TO SUPPORT HIS CLAIM."

Mark did not have a passport and he did not bring his birth certificate with him to prison. Mark's family had moved since he had been incarcerated. He told everyone in ICE, as well as Cassidy, that his brothers were in the military and they could find them if they tried, a statement that was verified when the U.S. Embassy in Guatemala City located Mark's brother Tommy at Fort Campbell over four months later. It took them 45 minutes, Mark said.

The I213 also states: "Subject claimed during interview questioning that he has a bipolar mental illness condition."

According to ICE's own record, they had in custody a mentally ill individual who claimed to be born in the United States, and the only evidence they had to prove otherwise was a single coerced statement signed by Mark. This occurred in September, 2008, while he was being badgered by the ICE agent in Neuse -- as I reported earlier, Mark was given a statement indicating he was Jose Thomas and told he had to sign it. He signed it: "Mark Daniel Lyttle."

All of the documents in his record are signed either "Mark Lyttle" or "Mark Daniel Lyttle."

4) The I213, which Cassidy used for the deportation, is demonstrably inconsistent. It documents government employees' stupidity and reckless disregard for human dignity. It does not document Mark's alienage.

The author of this bizarre document is David Collado, an ICE Deportation Officer in Atlanta.

-Under Father's Name, Nationality, it says: "Nationality: MEXICO LYTTLE, Thomas" but of course Thomas Lyttle, Mark's adoptive father, was not born in Mexico AND the original document alleging Mark's alienage said his father's name was Jose Thomas.

-Under Mother's Name, Nationality, it says, "Nationality: MEXICO LYTTLE, Jennie." Mark's mother's name is Jeanne; she was born in Ireland; and the original document on which ICE had issued Mark's order of removal stated that Mark's mother's name was "Maria Thomas."

When Jeanne, Mark's mother, read this part of the document, she said, "I laughed. I didn't know I was born in Mexico."

-Under criminal record it says, "None Known" but it also says that his status when found was "IN INSTITUTION" and he was "encountered while incarcerated at Neuse."

-It uses the name "Mark Daniel Lyttle" but the sworn statement of the ICE agent in Neuse from September says his true name is "Jose Thomas" and "Mark Daniel Lyttle" is an alias.

MARK RETURNS TO THE SCENE OF CASSIDY'S CRIME
I was curious about this guy Cassidy who deported at least one U.S. citizen and who was spreading false rumors about Mark and others to his superiors in Washington and the immigration legal community, and so was Mark. We wanted to take a look at him and also see if Mark could identify the translator who could verify Mark's exchange with Cassidy that Cassidy has denied occurred. While we were waiting for Mark's record, I looked at the Atlanta court schedule. Cassidy's schedule was missing. The clerk told me, "He called in sick this morning."

Mark said, "Is the sickness fear? Where's the doctor's report?" Mark said this because the rules for obtaining a copy of an immigration file require advance notice of the Court as to the date on which one would be picking it up.

Mark's letter to Cynthia Long, the Atlanta Court administrator, stated he would be there with me on Monday, June 21, the same morning Cassidy called in sick.

If reporters want to follow up, other names of individuals involved with Marks' case are:

Steven [sp?] Fuller. On the hearing recording for December 9, 2009 Cassidy says, "The government is represented by Steven [sp?] Fuller."

Nicole F. Kelly, Assistant Chief Counsel, filed a "Motion to Rescind and Vacate Final Order" on April 24, 2008 after Mark returned to the U.S. and was arrested by ICE despite possessing a U.S. passport.

Jill Jensen, Assistant Chief Counsel filed "Motion to Terminate Proceedings" on behalf of the Department of Homeland Security on April 28, 2009 stating that "the NTA was improvidently issued."

Both of their motions exclude mention of evidence before Mark's deportation indicating Mark was a U.S. citizen and both motions exclude mention of blatant errors in the charging documents.

The DHS attorneys are in the same building that houses the immigration courts at 180 Spring Street SW.

Judge Sease, also at the Atlanta Immigration Court, used to be an ICE attorney and in that capacity was engaged in ex parte communications with Judge Cassidy about ten years ago that were the subject of a complaint against Cassidy, as noted in a comment on the post below.

Mark's attorney, Neil Rambana, filed a FOIA request for Mark's file and has not received a copy. He also tried to pick one up at the Atlanta Court several weeks ago -- this is noted in the file copy Mark obtained -- and was told the file was not there and they did not know where it was.

Houston ICE Attorney Calls Due Process for U.S. Citizen "Idiotic" - Seeks Reinstatement of Removal of Texas Mother

[5/13/09: Cerna's relatives just located her parents' marriage certificate at a town hall in Nuevo Laredo, MX; this helps prove her U.S. citizenship. Meanwhile, Cerna is threatened with detention at any moment.]
The Immigration and Customs Enforcement agency (ICE) owes another apology to a probable U.S. citizen, Julia Cerna, 42, whose due process rights and physical security ICE Assistant Chief Counsel Tracy Hamby jeopardized Wednesday, May 6, 2009 in a Houston immigration court.

ICE in Washington, D.C. had been working with Cerna to protect her from ICE custody as she was documenting her claim to U.S. citizenship, but Hamby apparently found this offensive and made an end-run around Cerna's Constitutional rights and the interests of justice.

Here's an excerpt from a message Cerna's immigration attorney in Houston, Amy Tehauno, sent Thursday morning to an ICE public affairs spokesperson and copied to me, describing the events in the immigration court Wednesday:

At the first Master Calendar hearing in Houston before Judge Clarease Rankin-Yates yesterday, ICE Assistant Chief Counsel Mr. Tracy Hamby appeared for the government. He immediately moved to terminate the proceedings, which was unopposed by the Respondent as we believed that it was appropriate to permit Mrs. Cerna to apply for her Certificate of Citizenship and U.S. passport administratively/affirmatively. Mr. Hamby's words were something to the effect that the Immigration Court was an inappropriate forum to make a citizenship claim, a statement with which I agree.

However, Mr. Hamby then indicated that he intends to send the file to Detention and Removal to act on the old expedited removal/order reinstatement, and recommended that we file the N-600 [application for a Certificate of Citizenship] as soon as possible so that it will be on file when, presumably, my client is detained again.

I believe that the exact description Mr. Hamby gave in court of the actions of ICE in attempting to accord Mrs. Cerna all due process of law in presenting her U.S. citizenship as a defense to removal (an opportunity that she was not previously afforded) was "idiotic." Mr. Hamby did not consult with his office in moving to terminate and taking on this decision.

Hamby did not reply to two voice mail messages requesting comment on this incident in immigration court, part of a public hearing.

Hamby understood that an ICE trial attorney and immigration judge in Oakdale, Louisiana had allowed Cerna to be released on $5,000 bail while she was tracking down the documents for proving her U.S. citizenship and thought this idiotic. Exercising legal discretion over a possibly unlawful action -- ICE arrest or deportation of a U.S. citizen -- Hamby terminated the hearing only to reinstate an earlier expedited removal order issued in 2000 by a border officer (not a judge), issued when Cerna did not know her father's birth in Alice, Texas established grounds for her being a U.S. citizen and signed a statement that she was not a U.S. citizen. ICE interview notes also indicate she stated her father was born in Alice, Texas. The agent should have informed Cerna of this being grounds for investigating a claim to U.S. citizenship.

Before Cerna has an opportunity to document her citizenship, Hamby is authorizing ICE to come to her home, arrest her, and stick her back into a detention center. (Tehauno explained that they have a number of documents but need time for further research of records from the 1940s to 1960s before submitting the application.)

Cerna is fortunate because Tehauno has enlisted the support of a graduate student in history to find the necessary documents, but Tehauno is concerned more generally about acquired and derived citizenship cases for U.S. citizens who are poor and do not have access to an attorney or investigator.

BACKGROUND
Julia Cerna, 42, is raising two teenage sons in Magnolia, Texas, a suburb of Houston where she's lived for 20 years. She also has two daughters, in their twenties, one of whom had to take charge of the household while her mother was in detention last year. According to Tehauno, who is representing Cerna for a low fee to be paid after the bail is returned, Cerna has no criminal convictions. The only reason she is about to be deported is that she lives in a country in which citizenship rules are complicated and ideas of what counts as "U.S.-American" racialized as White, so that sometimes people born U.S. citizens abroad do not know they are U.S. citizens.

For instance, someone called me yesterday who applied for a U.S. Certificate of Citizenship in 2007 only because he had a friend from Europe whose parent was born in the U.S. and was applying for a Certificate of Citizenship. Because the man who called yesterday was of Mexican descent and lives in a country where the political if not legal message is that real U.S. citizens can never be born in Mexico, it never even occurred to him that he was a U.S. citizen at birth.

Legally, however, U.S. citizenship is predicated on meeting the criteria for U.S. citizenship, not encyclopedic knowledge of citizenship laws that even trained border agents and ICE attorneys do not understand.

Out of frustration that her client who might well be a U.S. citizen was in ICE custody, Tehauno said she "pulled an email address for an ICE press person giving quotes to press saying 'We don't deport U.S. citizens. She [Ernestine Fobbs, ICE public affairs] was great. She called me within an hour and I explained the situation to her."

ICE sent two agents to interview Cerna in an Alabama prison. Cerna was transferred to Oakdale, Louisiana where an immigration judge bonded her out of detention for $5,000, changed the venue for the hearing to Houston, near Cerna's home, and the ICE trial attorney waived appeal. These decisions are a good indication that they believed Cerna had a viable claim to U.S. citizenship and did not want a U.S. citizen in an ICE detention center.

But then came yesterday's hearing. Tehauno concluded this morning's message to Ernestine Fobbs, ICE Public Affairs, as follows:

I truly appreciate your assistance, and the considered and thoughtful actions of ICE in Alabama and ICE Assistant Chief Counsel in Oakdale, Louisiana. All of the actions from your office and agency through yesterday indicated a genuine concern that our government take every precaution not to deport U.S. citizens, as continues to occur in cases such as that of Mark Lyttle. However, Mr. Hamby's intended course of action indicates a lack of consistency within the agency in that regard. We will not oppose a motion to reopen the proceedings before Judge Rankin-Yates, should ICE Assistant Chief Counsel in Houston prefer to handle this through the immigration courts. Thank you again for any assistance that you may be able to render.

Fobbs has not replied to Tehauno's email message about Hamby's action undermining the decisions of the immigration judge and ICE Assistant Chief Counsel in Oakdale, or to phone or email messages from me.

Tehauno said: "There should be onus on the government to make sure that people are not citizens of the country. Before they deport people and ruin their lives and lock them up in prison they should absolutely know they're not citizens." Tehauno was disturbed by the harsh and arbitrary consequences of the discretion given to ICE attorneys, "It's happening a lot and there's no one in the government accountable. There 's no coherent government program, and then a case lands on the desk of someone" who characterizes due process rights as idiotic. (Well, that last phrase is a loose paraphrase of what Tehauno said...)

Mark Lyttle In Hiding From ICE

On Thursday, April 23, Neil Rambana informed me that another client of his, Mark Lyttle, was a U.S. citizen wrongfully identified as a noncitizen by an Immigration and Customs Enforcement (ICE) agent. (You can read about the first client, David, HERE, and Mark Lyttle HERE and you can read all the posts on Mark by clicking on Mark Lyttle.)

I spoke with Mark and his mother on Friday, April 24 and wrote about some of Mark's forced travel through Mexico, Honduras, Nicaragua and Guatemala after ICE removed him.

Here's what's happened in the meantime.

MARK STILL LISTED AS ALIEN IN DHS DATABASE
The DHS issued a press release Friday stating it was correcting its databases; as of this morning, not only was Mark still listed in the ICE database as Mexican, he also is listed as being in ICE custody in Atlanta.

ICE spokeswoman Barbara Gonzalez points out that the DHS never said when it would finish its updating. I asked her if there was a timeline that DHS had in mind when it issued this statement. She could not provide one. This leads me to conclude that when the DHS says it is updating its records, and there is no time line given, DHS is asserting that it cannot be held accountable for updating its records.

MARK'S CURRENT STATUS
Right now Mark is with his brothers Tommy and Brian at Fort Campbell, Tennessee. Mark wanted to stay with his brother, an army officer, because he was not comforted by his attorney's assurances that ICE would stop arresting him and wanted Tommy's protection. Looks like Mark was right. At this point if Mark were stopped and someone ran his name through a DHS database, it is likely he would be arrested.

After I told Mark's youngest brother, Brian, 25, also in the U.S. army, that Mark's name was in the ICE database as in detention in Atlanta, he said in disgust, "Government agencies operate with impunity. There's no ramifications for anything they do. We need to see this thing through. People need to lose their jobs. There needs to be some sort of restitution." Brian added that he'd also insisted that Mark get away from Atlanta. He'd heard that, "In Atlanta they can arrest you if you don't have ID on you. If you can't prove who you are, they can detain you." He said I should look into that to make sure, but that this is what he thought was going on. (This would be illegal, but so is deporting a U.S. citizen.)

ICE TRYING TO COVER UP MISCONDUCT
Meanwhile, I made some inquiries of ICE and North Carolina prison personnel to learn how Mark was put into deportation proceedings. What I learned is chilling. ICE is instructing its agents to put together information about Mark's history of mental illness in order to support a story that Mark had told ICE he was not a U.S. citizen, suggesting that Mark is or was mentally incompetent.

An ICE agent who does not work for public affairs told me that ICE in Atlanta tasked someone to go through Mark's medical records and pull out all the information on his "psychiatric illnesses." The agent told me that he could see in Mark's file that he was classified as bipolar, something that Mark himself had told me when we spoke on Friday and that I didn't mention because it had nothing to do with him being deported and because the diagnosis is uncertain, as I explain below.

Mark also is diabetic, but no one from ICE it Atlanta was asking for evidence about how this condition might have affected his detention and deportation. The agent would not tell me the grounds on which ICE had decided that Mark was Mexican, that was private, but was happy to tell me that Mark was bipolar. (Mark and his mother Jeanne discussed his having a "mental disorder" a television reporter who posted this on the internet, and that's why I'm writing about it today.)

The crafting of this information into an explanation for Mark's deportation was signaled as well by Ivan Ortiz, a DHS public affairs officer. I asked Ortiz why ICE gave Mark a notice to appear in immigration court. Ortiz replied, "That was a decision made by an immigration judge." This was not responsive, although I pity Ortiz's friends growing up, so I repeated the question. (Immigration judges do not issue notices to appear in their immigration courts; ICE does.)

Ortiz said, "At the time he did not say he was a U.S. citizen and everything indicated he was Mexican." I told Mark this afternoon what Ortiz told me and Mark was firm, repeating what he'd told me earlier, that he had insisted his name was Mark Daniel Lyttle, that he'd given him his social security number, which he had memorized, told them he was a U.S. citizen, and that he never, not once, said he was Mexican until after the immigration judge issued a deportation order and Mark wanted to get out of the Stewart Detention Center.

The DHS was trying to use a similar line in defending their deportation of Peter Guzman, also a U.S. citizen born in the United States. ICE said that Guzman himself had said he was born in Mexico. First, a defense against a charge of misconduct or kidnapping cannot be that the victim had a mental illness. And second, Mark Lyttle told ICE and Peter Guzman told the L.A.jail custodial assistant that they were born in the United States, respectively. (An agent states this in an affidavit defending Guzman's deportation and then says they didn't believe Guzman because aliens lie.)

Just to be clear, there are cases in which an underlying mental illness can wrongfully trigger deportation proceedings, as was the case for someone I identified as Anna in article I wrote for The Nation. Anna, documented as legally incompetent, told a police officer arresting her in Phoenix she was born in France and the foreign birth statement triggered her being sent to the Eloy Detention Center. She also has said that the Pope is her father and JFK is her father, but ICE did not deport her to the Vatican or call Caroline Kennedy.

Eventually, relying only on the sworn statement of someone who was legally incompetent, an immigration judge issued Anna a deportation order, which was not executed because France would not accept her so Anna is presumably wandering around southern Arizona deprived of her citizenship rights and subject to being thrown into detention at any point. A passport application in her files states she is born in Tehran, so Anna had better pray that the U.S. continues to have poor relations with Iran, or she might find herself in the Middle East.

In the event, I have spoke with Mark for a couple of hours. He was completely lucid and also sharp on the timeline and details of what happened. I hope there are tapes on file for the immigration hearings because I am confident they will confirm Mark's story.

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JEANNE'S STORY
Jeanne, 60, lost her job today as a rehab aid at a local hospital because she was allowed only one absence during her 90-day probationary period, set to end May 13, and she used up a second one on Friday when she went to pick up Mark from the Fulton County Jail where ICE was holding him.

This is just one example of the myriad of consequences that ICE misconduct causes to innocent parties, especially family members. Other examples are U.S. children of detainees being held in foster care before being adopted while their parents are either still in detention or deported, family members who are in advanced stages of illness denied the comfort of loved ones while on their death beds, U.S. citizens having their relatives, often legal permanent residents, "disappeared" by ICE, something that Jeanne also experienced, although part of the separation period is due to the prisons and not just DHS.

Jeanne hadn't seen Mark since July, 2007, when she dropped him off at a group home in North Carolina. Mark, one of three special needs siblings she adopted, in addition to two to whom she gave birth. Mark had some problems taking care of himself due to either mental illness or drugs he'd been prescribed to help treat it, discussed below. Jeanne was moving to Kentucky and there wasn't room in the Saturn for her daughter, Mark, and their belongings. The plan was that once she was settled, she'd come back and pick him up. She spoke with him on the phone a few times, enough to learn he was unhappy, but when she tried to make arrangements to find him in August, he was gone. Turns out he'd been arrested for trespassing -- Jeanne said he'd broken a rule in the home -- and he was sent to Jacksonville Jail.

After that Jeanne lost track of him, "I sent him a letter with everyone's phone numbers, but I got it back - 'Refused.'" In fall and winter, 2007 "his brothers walked the streets looking for him, everybody was looking for him. I checked the obituaries." On Mother's Day in 2008 she called a state hospital where Mark had once stayed, "The attendant remembered me and said, 'I'm not supposed to do this, but I'll get on the computer and check all the hospitals.'" No sign of of Mark. The same day, her son David, 29, said, "'Mom, let me try.' He sent the letter to same place at the jail and he enclosed the letter I got back. When I went to visit David in Winchester, Virginia, he showed me the manila envelope -- 'Refused'-- and we thought Mark had refused it. I thought Mark felt I left him behind, that I just left him [when I was moving to Kentucky]." Jeanne was crying, "We kept trying to find out where he was," and she told me about a family friend who was a lawyer and had hired a private investigator to help Jeanne find her son, but then the attorney had a stroke. It turned out that Mark had never received any of their letters.

Mark's absence haunted her family. Jeanne said that two weekends back she was visiting her son Tommy, 29, in Fort Campbell. They were talking about where Mark might be, speculating if he could be in Atlanta. Tommy tried calling some places, I'm not sure where, and Jeanne could hear him say, "I'm looking for Mark Lyttle." But no news.

Until Friday, April 17. That's when Jeanne received a phone call from Tommy, who said he was calling her about Mark. "I asked [Tommy] if he'd found [Mark] and he said, "Mom, I didn't find him, he found me," and explained how Mark had called him from the U.S. embassy in Guatemala, the first leg of Mark's trip home. If the embassy staff in Guatemala could believe Mark, and pay for an international call to his brother Brian, then why couldn't government employees in the United States exstend Mark the same courtesy before shipping him out of the country?

Jeanne described her response to Mark's deportation by his own government, "I'm a strong Christian woman, but let justice be served. This beats all. I thought I was dreaming, or seeing a made-for-TV movie. How many others are out there?"

-------------------------

MARK'S MENTAL ILLNESS
Mark and his family freely discuss his mental illness diagnoses. Jeanne, who repeatedly mentioned her faith in God, said that perhaps it was a blessing that this happened. "Mark told me he was 'traumatized,'" revealing to Jeanne not only his distress, but a mental and emotional acuity that Jeanne had never seen in her son before. "I'm so shocked he's so clear-headed," she told me.

Jeanne explained that a while back a psychiatrist in Virginia had called and said "he wasn't supposed to be calling me" but he had treated Mark and when he took him off the medication, Mark seemed fine. In other words, it was the medication that was causing Mark's disorders. The psychiatrist said that she might have grounds for a lawsuit against the places that had been medicating him so heavily.

Again, I was reluctant to pursue this topic in this particular case because it seems a distraction from the main issue: ICE wrongfully deported someone. However, because his family is discussing Mark's psychological condition with the media and because ICE appears to believe that it is more defensible to deport someone because of mental illness than racial profiling, I thought I would supplement the record.

Mark's response to what happened as far as I can tell from our phone conversations is the response of any sane person: he's traumatized, terrified of law enforcement, especially ICE, and happy, very, very happy, to be back with his brothers, including Tommy, 29, who took this picture of Mark this afternoon.

U.S. Citizen Deported to Mexico, Shipped to Guatemala, Now Held in Jail

(For an updated account, after speaking with Mark and his mother, Jeannie, please go here.)

Neil Rambana, an attorney in Florida who'd reported an earlier case of a client of his that ICE had misclassified as a noncitizen, is helping another US citizen, Mark, in the middle of a surreal and excruciating experience with the DHS. [Added 4/24/09 Immigration Judge William Cassidy in Atlanta wrongfully deported Mark on December 9, 2008 to Mexico, and from there he ended up in Guatemala via Nicaragua before returning to the U.S. on Tuesday, only to be arrested by DHS at the airport.]

Mark's family first learned he was in Guatemala when he called his brother, Tommy, last Friday from the US Consulate. The consular officer told Tommy that his adopted brother, born in North Carolina, was trying to return to the United States. The family contacted Rambana and he faxed a copy of Mark's adoption papers indicating his U.S. birth. That was good enough for the U.S. consulate to not only issue Mark a temporary U.S. passport, but to help him obtain a plane ticket for his return. But DHS only compounded their earlier injury once Mark arrived.

Instead of apologizing for their enormous mistake, DHS at the Atlanta airport accused Mark of illegal reentry and took him into custody. Rambana paraphrased what Mark was told, "Customs and border patrol say you have an order of deportation; you're reeentering after you've been deported."

Rambana has spoken to ICE agents in Atlanta and left messages, and has also spoken to the DHS desk attorney, who has the authority to dismiss charges and order Mark released.

DHS has ignored the legal presumption of US citizenship conferred by a US passport and falsely arrested Mark. So far no one has responded to Rambana's persistent requests for Mark's release.

As Neil and I were getting off the phone we talked about how odd it was that this sort of case had long stopped seeming unusual. I told him about some conversations I'd been having with a criminal attorney in Phoenix (will post soon) about the border patrol down there tearing up the birth certificates of Mexican-American teenage boys and judges deporting them, and then prosecutors charging them with illegal reentry. Neil said ruefully, "The worst part is that it's so outrageous that it's happening so often and beginning not to seem so outrageous."

(I sent the case information including the A number and Rambana's contact information to Barbara Gonzalez, an ICE spokeswoman who claims that ICE does not arrest U.S. citizens. Fingers crossed...)
-----------
UPDATE: Friday Morning, 4/24/09--Barbara Gonzalez was responsive. She called the ICE office in Atlanta and the DHS desk attorney to ask them to look into Mark's detention. Rambana sent me a note this morning saying that DHS is now acknowledging that Mark is a U.S. citizen and they are going to release him. I will be speaking shortly with his family.

UPDATE: Friday Noon, 4/24/09-- Mark is home with his mother. More tomorrow.

As I've written before, the only means of preventing US citizens and legal permanent residents from being wrongfully detained and deported, and not to deprive them of Constitutional rights to their citizenship and legal residence, is to provide everyone in deportation proceedings an attorney and the full due process protections of the U.S. Constitution. Under the U.S. Constitution, it is never legal to deport a U.S. citizen by mistake. Any laws, regulations, or DHS or DOJ practices with this effect must be stopped immediately, including the mandatory criminal alien deportation law.

In some cases the agents involved should not only be fired, but charged with kidnapping and false imprisonment.

One final note: Last year, when I was writing an article for The Nation about US citizens being deported, I sent ICE public affairs spokespersons Brandon Alvarez-Montgomery, Viriginia Kice, and Lori Haley documents indicating that Rene Saldivar, a US citizen, was being wrongfully detained in Eloy, Arizona. I was testing their statements that ICE did not knowingly detain US citizens. ICE failed. This time, although DHS in Atlanta ignored Mark's passport and arrested him, the ICE public affairs person in DC, Barbara Gonzalez, followed up on my inquiry and Mark was released.

It seems that DHS is finally acknowledging that its agents do arrest US citizens, the first step to ending not only the wrongful detention of U.S. citizens, but the archaic practice of banishment. The problem of US citizens being deported is a headline grabber, and that's unfortunate unless the complexities and traumas of the inane U.S.-Mexican border, indeed of any border, are understood as the main narrative driving the story.

The first deportations from England to the colonies were not criminals but vagrants, English nationals who were "caught" outside their parishes of birth. The thought was that if left uncontrolled, the free movement of peasants and paupers would overwhelm the cities. The barbarity of punishing people for moving across a national border will strike future generations as ridiculous as it would seem now to ship people out of San Francisco for the crime of moving there from Omaha, Nebraska--a distance much further, in many ways, than the distance between Mexico and the southern United States.

EOIR: Requiring Advance Notice to Attend Immigration Courts is Unlawful

A 1982 DOJ regulation requires immigration courts be open to the public, except in a limited number of circumstances determined by immigration judges. It turns out that the government is systematically violating this regulation, something I learned when I was recently turned away from immigration courts in Arizona detention centers. I later wrote about the excuses for this given by the EOIR.

NEW DEVELOPMENTS
Here's how the government has responded in the meantime.

EOIR
In the last week, apparently in response to inquiries on immigration court access policy by a Tucson reporter Claudine LoMonaco and myself, the EOIR changed their Immigration Court Practices Manual that the EOIR spokesperson Elaine Komis referenced to me the day I was turned away.

On March 27, 2009, the day I called Komis from the detention centers, the Manual stated: "The news media shall notify the Office of Legislative and Public Affairs and the Court Administrator before attending a hearing."

On April 9, 2009, the Manual stated: "The news media is strongly encouraged to notify the Office..."

EOIR spokesperson Susan Eastwood told me they made the changes because "some people had mistakenly believed that 'shall' meant 'must' and that was never our intention." EOIR made their underlying intentions explicit, Eastwood told me, because "immigration courts are open to the public." EOIR realized that requiring the media notify their office before attending a hearing was inconsistent with this.

DHS
DHS responses to inquiries about its unlawfully restricting access to the immigration courts has been something like Orwell meets Kafka. Access means no access; documents on the web stating their policy means no documents on the web stating their policy; publicly available information means obscure lengthy documents that contain no relevant information for attending the immigration courts.

The Details
On Friday, April 3, I received the following statement in an email message from ICS public affairs officer Vincent Picard in Phoenix:

“ICE’s policy is to provide public access to open hearings that are held in secure locations by requiring the minimum safety precautions. Specifically, persons wishing to attend courtroom proceedings in secure detention centers only need to comply with ICE’s visitation requirement to submit a written request in advance to be placed on the visitation list for a specific day allowing time to check credentials and undergo a security clearance. Certain cases are closed to the public by operation of law and those determinations are made by the immigration judge.”

I replied with a number of questions. Here are the questions and replies or no replies obtained in conversation with Barbara Gonzalez, an ICE spokesperson in Washington, D.C.

Gonzalez prefaced her comments by saying that a "new special advisor" Dr. Dora Schriro, appointed by Secretary of the DHS Janet Napolitano, is "looking at issues dealing with detention" and "making recommendations," and that immigration court access now will be among the areas of her examination.

Gonzalez responded on the telephone by largely reading responses to the written questions I'd sent Picard on April 3; some of my questions were not addressed. I have requested a copy of the statement from which she read and have received a reply. When I'd asked about receiving this information in writing earlier, Gonzalez told me she planned to provide it to me on the telephone because this was "more personal." I asked again and she said she was reading from notes and would answer me further if I had follow up questions. I will be following up on the written questions she did not address yesterday but in the meantime, I wanted to post what I have.

Again, my questions were in writing. Her replies are verbal.

JS: The big one: How can DHS justify having a higher level of security requirements for entering immigration court proceedings in its facilities than those required by prisons and jails where court hearings are also held and the public is allowed access without advance screening? Can you please tell me who authorized this policy and can you direct me to any written government statement other than your email where it appears?

BG: "Entrance requirements to open court hearings are determined by specific requirements by detention facility and are consistent with national detention standards."

Gonzalez then referred me to the Operations Manual ICE Performance Based National Detention Standards, initially drafted in 2000. Gonzalez repeatedly mentioned this document's section on Visitation as evidence that ICE had made its access policies for visitors attending immigration courts available to the public.

And yet, this document NOT ONCE mentions immigration courts, much less rules for public access to immigration courts in detention centers, but focuses on rules for attorneys and family members who want to meet with detainees.

At one point the document states: "A live voice or recording shall provide telephone callers the rules and hours for all categories of visitation. "

None of the detention centers I have called that house immigration courts, including those at Eloy and Florence, avail callers of information on access to the courts. Clearly public visitors to immigration courts are not a category contemplated by these centers and the claim that they are open to the public is demonstrably false.

In addition to this DHS document, Gonzalez also referred me to the Executive Office of Immigration Review Immigration Court Practice Manual. This document states under the heading of 4.9 Public Access: "Hearings in removal proceedings are generally open to the public"; none of the exceptions listed refer to courts being situated in detention centers.

Under a separate heading 4.14, the manual states: " For hearings held in Department of Homeland Security detention facilities or federal, state, or local correctional facilities,
compliance with additional security restrictions may be required. For example, individuals may be required to obtain advance clearance to enter the facility."

First, as Dan Kowalski, immigration lawyer in Austin, Texas, has informed me, these manuals do not have the force of law; if they are inconsistent with regulations, as this section is, then they require revision--as the EOIR recently undertook in changing its language on journalist access. When I asked Elaine Komis and more recently Susan Eastwood about the contradiction between courts being open and access requiring "advance screening" they both said that EOIR was only stating DHS rules.

Not only is this practice violating the regulation, it is not one that is at all transparent. Leaving aside the tension between open courts and advance screening, I asked Gonzalez if she thought it reasonable for a member of the public to find minutiae in a hundred plus page document they have no reason to know even exists.

BG: "It's no different than if you visit somewhere you've never been. You as a member of the public need to do your homework and figure out the rules, what you can bring and can't bring; for instance, cell phones and laptops are not allowed."

First, one can read the EOIR statement and still have no way of knowing the rules for showing up at immigration courts in a particular detention center, including a requirement of advance screening.

Second, even when I tried to comply with the advance screening requirement by contacting the ICE agents at the Florence Detention Center and leaving several messages, no one returned my phone calls. It was impossible for me to pursue obtaining advance screening.

Third and most importantly, planning to go to a publicly accessible court hearing should not require the advance planning of going to the Arctic Circle. It's one thing to go back to the car and drop off a cell phone, something else to return to the car and wait two weeks, which is what I was instructed. Say you read about a deportation hearing in the newspaper and want to attend, or an attorney notifies a reporter a few days in advance that a client has an interesting case the public should know about. Or say that the DOJ wants to keep their judges on their toes by not knowing when someone might drop in. None of these expectations of courts being open to the public are met by an "advance screening" requirement.

Indeed, EOIR itself has stated that advance notice by journalists violates the regulation requiring public access. If advance notice violates this rule, then surely advance screening does as well.

JS: Can you please give me a list of the "secure locations" where ICE is not allowing the public entrance into immigration courts without a written request?

No list was provided. Gonzalez said the detention centers make these assessments individually and its the public's responsibility to somehow figure it out.

JS: What measures, if any, has ICE made to alert the public about their limited access to immigration courts in "secure facilities"?

Gonzalez referred me to their standards and the EOIR rules.

JS: Who decided not to include a reference to the immigration courts on the signs at Eloy? Why is there no sign indicating the presence of immigration courts at Eloy?

This question was not answered.

JS: Why isn't a search and metal detector sufficient for providing "minimum safety precautions"? Whose security is being protected by this policy of not allowing the public into immigration court proceedings without advance notice?

The first part of the question was not answered. Gonzalez said the security was for the detention center detainees, judges, employees, and members of the public.

JS: How exactly is this advance notice to be given and to whom?

This question was not answered.

JS: Where does ICE state its "visitation requirement"s?

Gonzalez referenced their Performance Based National Detention Standards, but again, that is simply wrong.

JS: How long in advance and to whom is this request to be delivered and in what form?

This question was not answered.

JS: How is [advance screening] consistent with the regulation requiring public access
to the immigration court? Shouldn't judges expect that at any moment the public might scrutinize their proceedings? What if someone in the public learns of the hearing without time to submit documents for ICE scrutiny?

Gonzalez told me that advance screening was consistent with public access. I asked how a two week wait could accommodate this requirement. Gonzalez said, "Who said anything about two weeks?" and implied that I had arbitrarily selected a time frame to make DHS look more unreasonable than it really was. I told her that was the time for advance screening given to me at Eloy, and asked her if she thought that was unreasonable. Gonzalez shifted gears and said two weeks for screening was consistent with public access.

JS [Picard's reply mentioned that DHS had to "check credentials"]: What credentials are necessary? How is this consistent with the regulation specifically saying the immigration courts are open to the public, without any credentials necessary?

This question was not answered.

JS: What does this require? What would be grounds for failing this clearance?

This question was not answered.

Gonzalez concluded by reiterating that the policy on access is under review.

Meanwhile, every day, in violation of the law, hundreds of people are having the most important fact of their lives--the country of their legal residence--determined in secret hearings by judges who are political appointees ideologically averse detainee defenses and unafraid of public scrutiny.

Many thanks to Dan Kowalski for sending on the EOIR update to me and for providing legal insights on the regulation requiring public access to immigration courts!

News On US Citizens being Detained, Deported, or Convicted as Aliens

The following summarizes key findings from my recent research on U.S. citizens who have been detained, deported, or convicted of immigration crimes predicated on alienage. I am compiling this in the context of other narratives from government officials, immigration attorneys, criminal public defense attorneys, and US citizens for submission to a peer-reviewed journal but thought this information should be publicly available in the meantime.

The reports on the US citizens detained in the Eloy and Florence areas are based on my personal inspection of more than 2,000 individual case files maintained by the nonprofit Florence Immigrant and Refugee Rights Project. They provide legal support for pro se representation to all detainees held in Florence or Eloy and maintain files for approximately one-third of the detainees.

Between March 23 and March 25, 2009 I went through all the case files for Florence detainees for 2008 and all the cases files that were classified as possible terminations for detainees held in Eloy from 2006-2008.

The FIRRP attorneys are responsible for much appreciated access to their files, and for putting up with a stranger occupying their conference room for three long days, but they did not direct my research in any way.

In addition to the results below, this research yielded many other disturbing findings I will describe in future postings.

COUNTING US CITIZENS IN DETENTION CENTERS

--I saw files for at least 65 US citizens who were held in the Eloy Detention Center in Arizona between January 1, 2006 and December 31, 2008.

--I read files for at least 15 US citizens who were held in jails or ICE-run detention centers in nearby Florence, Arizona between January 1, 2008 and December 31, 2008.

--One percent of the cases in FIRRP files were for US citizens. If this rate holds for the United States, then about 10,000 US citizens have been put into removal proceedings since 2003.

--In at least five cases, DHS trial attorneys appealed the immigration judges' orders terminating proceedings on grounds of US citizenship. In each of the cases the BIA affirmed the order terminating the deportation proceedings, but the delay added months to years to the time the US citizens were held in detention.

--In an additional five cases that have been previously unreported in the media, US citizens who had produced birth certificates indicating birth in Arizona, Colorado, Missouri, or California were held as unlawful immigrants in detention centers in Eloy or Florence.

--There are many other cases in which individuals with proof of being citizens by birth are receiving adverse judgments by immigration judges and BIA judges who are writing decisions that defy law and evidence.

EXAMPLE OF ICE AND IMMIGRATION JUDGE VIOLATING DUE PROCESS RIGHTS OF US CITIZEN

I saw documents in a file for a 17 year-old who was born in Colorado and raised in Mexico. When he returned to the United States with his birth certificate, a border patrol guard tore it up in front of him and told him it was fraudulent. He told the kid, Michael, not his real name, that he could dispute this by being handcuffed and brought to a detention center, or he could sign a document stipulating he was a Mexican citizen and be released.

Go to jail with scary, mean guys who just tore up your birth certificate or sign a get-out-of-jail-notsofree card? The kid chose the latter.

Michael tried returning again, was caught, and this time decided to stick it out. The immigration judge relied on his statement of Mexican citizenship signed under duress and ignored the three inch thick file documenting his birth in the United States, including a birth certificate, a photo from when the kid was about 8 years old in which you can see the exact same birth certificate in his hand, and a hospital report on his newborn reflexes taken several minutes after birth.

Michael has been removed to Mexico and stripped of his citizenship rights.

ICE LIES

Today's LA Times article states: "'ICE does not detain United States citizens,' said spokesman Richard Rocha, adding that agents thoroughly investigated people's claims of citizenship. 'ICE only processes an individual for removal when all available facts indicate that the person is an alien.'"

Since in some cases, the DHS attorneys are themselves withdrawing the notices to appear, this statement is demonstrably false.

For instance, one guy was held in Eloy for two and half months in 2007 before the trial attorney filed a motion to withdraw the removal order on grounds of the detainee's US citizenship. I have documented similar cases and I know from conversations with DHS officials that they are also aware of this.

I have additional information on US citizens in removal proceedings--I've documented over 160 cases in recent years of individuals whose claims to US citizenship have been affirmed by an immigration judge, USCIS agent, jury, or federal judge and yet who at some point were detained, deported, or convicted of immigration crimes predicated on alienage.

Also, there are the potentially viable claims that cannot be pursued even as far as Michael's, who actually had a birth certificate.

Some files had what appear to be legitimate claims but the detainees decided not to pursue them. E.g., - a sleeve note by a Florence attorney states: “Dad USC, died 20 years ago” “R has a cta which has USC dad's name on it. BUT R doesnt have anything else and probably not means to get it. If he wants he can turn in generic deriv. w. [illegible] that he is an USC. But w/o more data claim will be denied.”

The attorney was advising the client on a pro se basis and knew that an indigent felon didn't have the resources to track down the necessary documents to show his father's residence and work history in the United States.

Okay, that's all the new stuff for now. More to come.

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I was hoping that some of the information above would have appeared in today's LA Times story about the detention and removal of U.S. citizens. The article by Andrew Becker and Patrick McDonnell, U.S. citizens caught up in immigration sweeps mentions just one new case of a natural-born US citizen held in detention and downplays the documented evidence of many others in the public domain. I'd shared some of the information above with one of the reporters; I know from our conversations he had additional evidence of US citizens held in detention that also was not included.

Newspapers have space constraints and cannot include all available information about any particular subject;and yes, people who are interviewed and have their comments omitted will be predictably grumpy. No news there. But what seems wrong is for the article to confuse space constraints with the absence of evidence, as occurs in this statement: "No agency tracks such incidents, so statistical totals are not available."

This is gobbledygook and also incorrect. Since when does a "statistical total" from counting require an agency? What does it tell us about reporting standards that government reports are equated with evidence when it is the very same government that is illegally holding its own citizens?

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Meanwhile, if you want a quick survey of published reports on US citizens in detention centers or deported, you can check out the following:

-- the McClatchy news service, "Immigration officials detaining, deporting American citizens" (January 24, 2008)

--USA Today, Citizens sue after detentions, immigration raids (6/25/08)

--The Nation "Thin ICE" (6/23/08).

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This is a photo of the Gila River, mostly a dry bed unless there's a downpour, taken from its north side facing south. The buildings in the background are the Pinal County Jail, which houses detainees. After the Mexican-American War, the Gila River marked the southern boundary of the United States. The Eloy Detention Center is also south of the Gila River. I took this picture a couple of weeks ago when I was doing research in this area. (That's not a typo: this area of the country was obtained by fraud and corruption in a trade brokered in 1853 on behalf of US slave-holding interests and for the personal enrichment of a Mexican dictator.)

DOJ/EOIR: Secret Decision to Maintain Secret Immigration Courts

WHO DUNNIT?

Last week I wrote about being turned away from immigration courts in Eloy and Florence, Arizona, even though federal law requires immigration courts be open to the public.

At first it seemed this might be a mistake on the part of overzealous guards. But it's not. According to Elaine Komis, Public Affairs Officer and Congressional Liason at the Executive Office for Immigration Review (EOIR), the EOIR has been aware for quite some time that the public has been prevented from entering immigration courts in some parts of the country, and the EOIR is happy to go along with this.

Even the architecture of the buildings suggests secrecy: the sign outside says "Eloy Detention Center" but includes no reference to the presence of immigration courts in the facility.

This all seems not only wrong but illegal. As I wrote to Komis, DOJ regulations require immigration courts be open to the public. How can EOIR justify having its courts in buildings the EOIR knows the public is not allowed to enter? The secret tribunals for the few hundred detainees at Guantanamo are bad enough, but what about secret trials for tens of thousands of US residents? (NOTE: I thought this was in a law passed by Congress, but it is actually a DOJ regulation; nonetheless these are the rules the government is supposed to follow and the EOIR is demonstrably not following its own regulation.)

The person who is usually super fast and largely helpful in responding to my queries suggested that she would have an answer. On Tuesday, March 30, in response to my following up on the query I'd written last Thursday, Komis wrote: "Please know that I’m still researching this issue with EOIR’s program experts….I’m hoping to have a response soon…Elaine"

The long-awaited response from the program experts arrived yesterday: "Regarding your query, please contact the Department of Homeland Security (DHS). DHS/ICE Public Affairs’ HQ telephone number is 202-732-4242….Elaine"

This is of course absurd. I'd already heard first-hand the DHS policy, as I reported last week: it wouldn't allow the public into its buildings without "preapproval" that required a criminal background check and would take two weeks. At the 202 number they told me to contact Lori Haley, an ICE public affairs officer in California. She wrote back and copied Virginia Kice, an ICE public affairs officer, and Vincent Picard; Haley's note told me to talk to Picard, an ICE public affairs officer in Phoenix, who had already told me he was not aware of what the DHS policy was and would get back to me. But he didn't.

Also disturbing is that the EOIR is not disclosing the name of the person who is making the decision to keep the courts closed. In response to my query on this point, Komis said I would have to submit a FOIA query and sent me the contact information for the right office.

Didn't someone run for president with a promise of transparency? Didn't some high-placed official in the Obama administration, revoking the old FOIA policy, call for openness?

Attorney General Eric Holder, now that you've saved a rich, corrupt, Republican, ex-Senator from prison due to prosecutorial misconduct, what about making sure that tens of thousands of people who cannot afford an attorney at least have judges whose work is open to public scrutiny?

In fact, what does it tell us about these judges that they are not themselves protesting these conditions? If they cannot guarantee the respondents in their courtroom the most minimum protection of an open court, then how can we even pretend that these same judges will provide them other due process protections?

One more question: why are the same people who were unhelpful in providing information about immigration law enforcement under the Bush administration still in place under the Obama administration? President Obama isn't using Dana Perino for his press secretary, so why are Lori Haley and Virginia Kice -- two DHS public affairs officers who have been spectacularly unhelpful and apologists for the worst ICE abuses -- still the public voices for immigration law enforcement?

(Who's On First: Right now EOIR has an Acting Director, Thomas Snow, and an Acting Chief Immigration Judge, Michael McGoings, and no Deputy Director.)