DHS Releases US Citizen George Ibarra From Eloy Detention Center

On February 22, 2011, an immigration judge ruled that Mr. George Ibarra had by a "preponderance of the evidence" proven he was a U.S. citizen and thus terminated his deportation order, and yet Mr. Ibarra remained in solitary confinement in the Eloy Detention Center pending the decision's appeal by the Department of Homeland Security (DHS).

Yesterday afternoon, a week after information about his plight was posted on this blog and distributed by the Bender's Immigration Blog, edited by Daniel Kowalski, authorities from the Department of Homeland Security released Mr. Ibarra.

Mr. Ibarra's pro bono attorney, Luis Parra, said that his client had received no information on the reason for his release and that Mr. Parra had seen no legal documents to account for the shift in the DHS determination of his client's custody.

At present Mr. Ibarra is in legal limbo. The immigration judge has declared him a U.S. citizen, but he's still in the DHS database as a deported criminal alien and subject to arrest. "He's going to have to be very careful out there," Mr. Parra said, "It's not like he's carrying around a paper saying he's a U.S. citizen," although he does have a minute entry from immigration judge Richard Phelps that terminates the deportation order on grounds of Mr. Parra's U.S. citizenship.

Mr. Parra decided to help Mr. Ibarra, a veteran, after reading a posting about him on an Arizona listserve and sympathizing with his predicament. "I knew about his situation because I'm a veteran and I understand the plight of Persian Gulf war vets who served in the 91 war." Mr. Parra and Mr. Ibarra both did active duty in the region and saw combat. As a result of Mr. Ibarra's misclassification as a criminal alien he was not only locked up, deported twice -- in 1998 and in 2005 -- but he also lost his veterans benefits.

I am presently waiting for Mr. Ibarra to sign a privacy waiver so that ICE can share information about the details of his release and the DHS position more generally on incarcerating folks after immigration judges rule they are U.S. citizens.

DHS Falsely Imprisoning George Ibarra, U.S. Citizen, After Wrongful Deportations

On February 23, 2011 Department of Justice adjudicator Richard Phelps ruled in Eloy, Arizona that George Ibarra had by a preponderance of the evidence proven that he is indeed a citizen of the United States.

Rather than rely on this determination and apologize to Mr. Ibarra for previously wrongfully deporting him, the Department of Homeland Security (DHS) is holding Mr. Ibarra in solitary confinement at the Eloy Detention Center, in clear violation of the U.S. Constitution and a memorandum requiring Immigration and Customs Enforcement (ICE) to release anyone with "probative evidence" of U.S. citizenship.

Mr. Ibarra, 46, was born in Mexico but was raised since infancy in Arizona. In his late 20s he enlisted in the Marines and served three years on active duty, including time in Iraq, before being honorably discharged.

According to attorney Kara Hartzler of the non-profit Florence Project, Mr. Ibarra suffers from nerve damage sustained from time in combat as well as Post Traumatic Stress Disorder.

Moreover, his convictions, the trigger for him coming to the attention of ICE, were for actions whose criminalization is senseless in the first place, the sale of methamphetamines and the possession of drug paraphernalia, violations far less harmful than the government's kidnapping and false imprisonment of Mr. Ibarra.

In repayment for Mr. Ibarra's suffering in Iraq, Mexico, and now in the Eloy immigration prison the government's prosecutor Brett Day is appealing the adjudicator's decision and claiming that Mr. Ibarra's mother's U.S. Certificate of Citizenship and other documents that verify Mr. Ibarra's U.S. citizenship to the satisfaction of an immigration judge are not credible, arguments the adjudicator rejected:

The Court therefore concludes that the evidence offered ...to rebut the presumption of Alienage as occasioned by his foreign birth is both substantial and credible and sufficient to rebut that presumption. In the absence of any further evidence of Alienage from the Department, the Court must conclude that the removal proceedings must be terminate.

While Mr. Day's decision to appeal this decision may be very poor judgment, Mr. Day's failure to ensure Mr. Ibarra's immediate release from the Eloy Detention Center in its aftermath pending a final determination by the Board of Immigration Appeals is unlawful. ICE has a policy of not imprisoning anyone with probative evidence of U.S. citizenship, a standard that is lower than that of the "preponderance of evidence" for this found by the immigration judge.

The day that Mr. Phelps terminated Mr. Ibarra's deportation order on grounds of his U.S. citizenship was the day that the law required Mr. Day to ensure Mr. Ibarra's release from Eloy, as have other DHS attorneys in similar situations. By failing to do so Mr. Day raises very serious questions about his commitment to the rule of law and thus of whether the U.S. government should continue to put in his hands such life and death questions as the confinement of U.S. residents. ICE's negligence in failing to ensure Mr. Ibarra's release provides further evidence of the horrors that result when the government tries to distinguish U.S. citizens from "illegals" and deport U.S. residents on the basis of antiquated fantasies about birth and lineage.

UPDATE, May 4, 2011: DHS releases Mr. Ibarra!!! On May 3 DHS released Mr. Ibarra from the Eloy Detention Center. For details, click here.

Please note as well comments from anonymous ICE trial attorneys below suggesting that DHS is not legally obligated to abide by DOJ's analyses when evaluating whether someone in their custody has proferred "probative evidence" of US citizenship, a chilling claim that violates the letter and spirit of the John Morton memorandum of November, 2009 which states: "In all cases, any uncertainty about about whether evidence is probative of U.S. citizenship should weigh against detention." If an immigration judge's determines that a respondent has proven U.S. citizenship by a "preponderance of the evidence" and this does not create at least uncertainty of the respondent's citizenship claim in the mind of an ICE attorney, then this is evidence of a strong and unprofessional bias against respondents inconsistent with not only ICE rules but the rule of law more generally.

ICE Deports Wrong Man, Attorney Fights Back

As the Department of Homeland Security (DHS) expands its database surveillance programs, civil libertarians have feared, rightly, the agency encroaching on privacy interests. However, equally worrisome is that the government might arrest and deport you by encroaching on someone else's privacy.

Immigration and Customs Enforcement (ICE) agents and local law enforcement officials have been using a DHS database (IDENT) and coming up with false positives and then including in their arrest reports information consistent with the match and excluding from the arrest report information inconsistent with a match. The cases I've seen typically involve two records for two different people: one record is for someone with legal status to remain in the country and the other record is for someone ICE has put into removal proceedings. ICE claims in these cases that one or the other names is an alias and the two records are for the same person.

That means that you could have an arrest warrant issued to you based on ICE claiming that you are "really" someone else. The secrecy of these databases and their protocols, as well as DHS attorneys' failure to produce authenticated and verifiable underlying evidence, makes it difficult to impossible for respondents who lack legal counsel to challenge these orders.

Attorneys have a hard time challenging these matches as well. Florence Project attorney Kara Hartzler's July 20, 2010 Motion to Appeal EOIR adjudicator Linda Spencer-Walters' removal order for someone who was deported on February 2, 2010 provides insight into how ICE agents are playing around with information on their reports and how EOIR adjudicators, many of whom are former ICE attorneys, are rubber-stamping the misinformation.

Ms. Hartzler's incisive and informative appeal contains important legal and factual analyses useful for challenging ICE in these cases. I am posting it here, with the personal information about the respondent and someone else redacted, because her analyses may be helpful for other attorneys confronting similar situations.

By the way, folks who are familiar with the poor quality of decisions by Ms. Spencer-Walters, an adjudicator at the Eloy Detention Center, may know that she is a former ICE attorney but may not realize that she was the ICE attorney who vigorously pursued the deportation of four star high school students in a well-publicized 2005 case following their arrest on a field trip.

An immigration judge in Phoenix, John Richardson, squashed the deportation order on the grounds that it was obtained based on unconstitutional racial profiling, according to Daniel González, a reporter for the Arizona Republic. His story describes two students quoting Border Patrol agents in Buffalo: "In Arizona they may not stick out because there are a lot of Hispanics, but in Buffalo they were eventually going to get questioned."

Ms. Spencer-Walters lost the case but as an apparent reward for her dogged efforts to deport honor students -- the hearing lasted six hours -- the Department of Justice made her a job offer and in 2008 she was sworn in as an adjudicator. Now she can just deport people herself and not bother with little things like the Constitution and evidence.

Adam, 8 Years Old, Loses Mother to Iraq War and Father, a Marine, to ICE

"Get this letter out to the American people..."

Today I received a letter from Anthony Chiu, a Marine who served in Afghanistan and was honorably discharged in 2003. Shortly after his discharge Mr. Chiu committed three crimes and served the prison sentences associated with these (identity theft, embezzlement, and forgery -- all apparently associated with one single incident).

Then ICE tried to deport him. He is from Virginia but has been in ICE jails for over four years, most of them at the Eloy Detention Center in Arizona.

During this time his wife was killed in Iraq.

Here is part of what he wrote:

I have adjusted my Immigration status to that of a Lawful Permane[n]t Resident on September 13, 1988. I've been in Immigration detention for the last four years... My wife and I were married nine loving years before she was killed in the Iraq War. I'm upset that ICE did not and would not let myself have the ability to attend her Funeral in Arlington National Cemetery shortly after she was back here in the United States from Iraq. ICE told me to F%$& myself and it was not their F@#$ing problem that I was unable to go because I committed criminal acts which two are now misdem[e]anors and one is still a felony...

The deportation officers who spoke to Mr. Chiu this way were at the Eloy Detention Center.

Mr. Chiu asked me to share his story and I am posting his entire letter here. If this information is accurate, it appears that Mr. Chiu should be eligible for relief based on the hardship his deportation would cause his son. As I obtain more information I will update this post.

Adam's mother died fighting for a country that is deporting Adam's father, a legal permanent resident and Afghanistan war veteran who could not attend her own burial. This is the lunacy of U.S. immigration policy: in the name of the nation and the family, nativist policies are ruining the lives of the very U.S. children on whose behalf these struggles are supposedly being waged.

Adam and Anthony Chiu's ordeals are no surprise because the nation and family are both fictions, and bad ones at that, making the violence done in their names especially stupid and horrifying.

If this were a class, an essay question might be "what would Antigone say?"

ICE Puts Son of U.S. Navy Officer Incommunicado from Press, Attorney Outraged

This is where the Pinal County Jail officers informed me yesterday that ICE was violating the First Amendment (Florence, Arizona)

ICE Illegally Prohibiting Nation Reporter and Scholar's Access to Joseph Anderson, Detention Centers, Immigration Courts.

Joseph Anderson has provided copious evidence that he's a U.S. citizen, but ICE is ignoring his evidence and holding him in the Pinal County Jail. (You can read about his case here.)

Not only is ICE is holding Mr. Anderson illegally, it is now prohibiting Mr. Anderson from meeting with the press, further violating ICE rules as well as Mr. Anderson's and the U.S. public's First Amendment rights to freedom of association and freedom of the press.

Kari Hong, Mr. Anderson's attorney, is upset:

I am not aware of any policy or law that authorizes ICE to limit or deny Joseph's access to the media. This disregard for legal authority is even more troubling given that our legal argument to the federal courts is that Joseph is a U.S. citizen. The mere detention of him, in our view, is unauthorized. I understand that ICE disagrees with our position, but as the Ninth Circuit is resolving this legal question, under their own policy, ICE is supposed to be giving Joseph the benefit of the doubt and releasing him rather than taking away rights and privileges detained non-citizens enjoy.

The Details
On the afternoon of Friday, March 5, Officer Charlson of the Florence Service Processing Center (SPC) informed me while we were in the detention center that he would make sure to have Mr. Anderson brought to the Florence SPC for its normal visiting hours on Saturday at 8:30 a.m. This commitment was required by ICE detention standards, which allow detainees to meet anyone during visiting hours subject to both parties' mutual agreement. (The televideo system at the jail had been inoperative since February 26, and ICE was bringing people from the jail down the road to the ICE facility for weekend visits.)

Shortly after that arrangement was made, I received a cryptic email message from the Chief of ICE's Ministry of Propaganda, Brian Hale. I had not been in touch with Mr. Hale about the Saturday visit. He informed me that Mr. Anderson would not be allowed to meet with me over the weekend. No reason was provided for this illegal intervention. (Officer Charlson was aware that I was waiting for a long overdue response to a request to videotape an interview with Mr. Anderson; in the meantime Officer Charlson, following ICE rules, was trying to allow Mr. Anderson the ability to meet with me as a regular visitor.)

I replied to Mr. Hale by stating that his intervention was illegal and I intended to meet Mr. Anderson on Saturday. I am calling him a Minister of Propaganda and not using his official title of "Director of the Office of Public Affairs" because Mr. Hale is curtailing the public's access to information, using Soviet-era methods of obstructions, distortions, and outright lies to keep ICE's affairs secret.

On Saturday at 8 a.m. Officer Charlson met me at the gate of the Florence SPC and informed me that he had "made a mistake" and that Mr. Anderson would not be brought down to meet with me. I asked him for a legal reason for this. He did not provide one, although he did assure me that the televideo system would be working on Monday and Mr. Anderson could meet with me then.

Yesterday I showed up during the visiting hours of the Pinal County Jail and the desk officer told me that televideo system was still not working; the part was being held up by Customs at the Canadian border. Mr. Anderson would not be able to talk to me.

I drove back to Florence SPC and told Officer Charlson that it seemed he had made another mistake. However, Officer Charlson had a nice surprise: he had followed up on his commitment and arranged with Commander Johnston at the jail for me to have a face-to-face meeting with Mr. Anderson that afternoon. I returned to the jail and informed the desk officer of this. She spoke with Commander Johnston and informed me that I would be escorted to meet Mr. Anderson. However, there had been a fight in the women's wing and I would have to wait a few minutes for an escort.

While I was waiting, the ICE Ministry of Propaganda unlawfully interceded yet again. Commander Johnston came out to inform me that he had just been called by Officer Charlson and told that Mr. Anderson once again would have his right to meet with me obstructed. Cmdr. Johnston said his facility was under contract to ICE and although he had been trying to accommodate a meeting, he "was helpless" in the face of an illegal order from ICE.

About 30 minutes later, Officer Charlson informed me that he had made another "mistake."

More Lies and Secrets at the ICE Ministry of Propaganda
In addition to illegally interfering with Mr. Anderson's rights, ICE has been obstructing my own investigation of its facilities at Eloy and Florence, including this morning, when I was illegally turned away from the immigration courts at Eloy. (See below.)

This continues longstanding attempts by ICE to improve its image by deception and impeding access, rather than by following the law. Before turning to my recent experiences, consider the following:

#In 2009, ICE propagandist Richard Rocha told reporters from the Los Angeles Times, "ICE does not detain U.S. citizens." But of course, as reporters across the country have been documenting, including Andrew Becker and Patrick McDonnell of the LA Times, ICE has been detaining thousands of U.S. citizens. (Recently, in circumstances very similar to those in Mr. Anderson's case, a judge ordered the release of a U.S. citizen from ICE custody in Minnesota: you can listen to coverage of that here. (I personally documented 82 U.S. citizens who had been held in ICE custody in the Florence and Eloy area and then ordered released by immigration judges.) You can read about that and find links to earlier articles here.

#In her article, "Officials Hid Truth of Immigrant Deaths in Jail," New York Times reporter Nina Bernstein describes how Mr. Hale's underling Michael Gilhooley lied to Ms. Bernstein. Mr. Gilhooley, the same person who had denied, without any reason, my request for a tour of the Varick Detention Center, told Ms. Bernstein that he was unable to find out the condition of a dying man. Instead of communicating the truth to a reporter, Mr. Gilhooley used Ms. Bernstein's inquiry to initiate a cover-up of Boubacar Bah's illness and eventual death.

#In response to my article in The Nation magazine documenting ICE agents unconstitutionally impersonating Mormons and attorneys, ICE issued talking points to its staff that covered-up ICE's previous statements to me.

Local reporters did some great work following up on the the secret subfield offices in their vicinities. As a result I was contacted by Utah Tribune reporter Kristin Molton. She told me that ICE propagandist Virginia Kice had categorically denied the report. I sent her the emailed responses to my queries ICE had sent to me earlier. Here they are, verbatim:

[JS]3) Is it consistent with government policy for ICE agents to pose as religious workers in order to gain access to homes for the purposes of issuing arrest warrants to immigrants who have no criminal history?

[ICE:]DRO officers are authorized and trained to conduct ruse operations. The use of ruses in law enforcement operations is an effective law enforcement tool that enhances officer safety. One main objective of a ruse is to prevent violators from fleeing, thereby allowing for a safe arrest that does not place the violator, the arresting officers or innocent bystanders at risk.

[JS:]5) Is it consistent with government policy for ICE agents to represent themselves as an immigrant's attorney for purposes of arranging to meet in the attorney's office and then arresting the immigrant in the lobby?

[ICE:] As stated in response to question 3 above, DRO officers are authorized and
trained to conduct ruse operations, however, DRO officers do not routinely conduct ruse operations in attorney's offices.

I gave ICE an opportunity to deny that it impersonated religious workers and attorneys, and ICE instead explained how these operations were part of their mission. In response to this reporter telling me that ICE's Ms. Kice denied the Mormon operation, she quoted my response: "How do we know it's not part of their ruse operation to lie about ruse operations? They told me it's [impersonating religious workers] consistent with their policy. Why would I doubt it?"

ICE agents lie as part of their daily operations, and ICE has a team of expert propagandists trying to cover this up. This is offensive to the rule of law and any possibility of responsible self-governance. How can citizens and Congress regulate ICE when ICE lies about its actions and obstructs those in its custody from meeting with reporters?

The Nation recently published an editorial in which I gave voice to the frustration among attorneys and people in ICE custody that, shockingly, ICE refused to issue regulations for its detention operations. The violations above are a result of this.

Alas, space did not permit sharing some insightful quotations on this subject. When federal agents worked under a similar cloak of lawlessness in the 1920s, federal judges and senior attorneys protested. Of the "Red raids," in which agents used the pretext of immigration violations to disrupt communist organizing, one judge squashing a deportation order wrote:

Assuming petitioner is of the so-called 'Reds' and of the evil practice [sic] charged against him, he and his kind are less a danger to America than are those who [e]ndorse or use the methods that brought him to deportation. (Judge Bourquin, 263 Fed. 110, 113)

Another judge said of J. Edgar Hoover’s raids:

"a mob is a mob, whether made up of Government officials acting under instructions from the Department of Justice, or of criminals, loafers and the vicious classes. (Judge Anderson 265 Fed. 17, 43)

In a third case, the federal court held:

The 'mild mannered' methods employed do not change the truth that the arrest and detention were wholly without authority of law....The relator is charged with a failure to observe the immigration laws; she is sought to be condemned by another violation.

The principle that protecting U.S. citizens from government thuggery should be prioritized over protecting against the immigration of criminal aliens is of course the raison d’etre of the Bill of Rights and thus a longstanding central tenet of this country’s system of governance.

This morning at the Eloy Detention Center, Assistant Warden Karl Stansel and Chief of Unit Management Wilson informed me that ICE Assistant Field Office Director Michelle Lee and Correction Corporation of America's Mr. Swenson, the managing director for CCA in Arizona, had instructed him not to allow me into attend immigration court hearings that day. Warden Stansel said he was told the order was issued because of an investigation being conducted after ICE agent Vincent Picard informed them of how I was mistreated during my visit last week, when I was illegally pulled out of an immigration hearing by a CCA guard.

I started to laugh, "You realize how absurd this is: you are preventing me from having access to the courts because of an investigation into my being prevented from having access to the courts? This is only going to cause another investigation." (According to a DOJ regulation, immigration courts are supposed to be open to the public.)

I asked them for a legal reason for my being denied access to the courts that morning. None was offered. Instead, Asst. Warden Stansel said, "This investigation is for your safety." I said I thought it was great that they were doing an investigation but I didn't understand why this would prevent my access that day. What if I waived my safety concerns? He repeated that he had been ordered by his warden who had been ordered by someone else not to allow me in.

To their credit, Ms. Wilson and Asst. Warden Swenson seemed genuinely pained by having to convey this information, and they did not disagree when I pointed out the irony of them deporting people for a simple infraction of legal status while they were perpetrating a serious violation of the U.S. Constitution, one of many that are occurring here and in ICE operations across the country.

[UPDATE, 3/10/10] I learned today for the first time a bit more about the alleged allegation for conduct from Ernestine Fobbs, ICE public affairs officer, and John Mills, a CCA investigator. It is truly incredible and deeply disturbing. I believe the message I drafted to Ms. Fobbs conveys what is happening. ICE is refusing to let me read any of the documents associated with alleged allegations concerning events at the Eloy Detention Center.

Dear Ernestine,

I just spoke by phone with John Mills, the CCA investigator into my alleged allegations.

You told me that the investigation was still ongoing. He told me that he concluded the investigation yesterday afternoon. Unfortunately, the investigation was into nonsense and not into the substantive concerns about my access to the courts being obstructed.

In response to Mr. Picard asking me how I was doing following my visit to Eloy on Thursday for the master calendar hearings I said, "I'm fine but a bit bruised from running the g[au]ntlet." Apparently Mr. Picard conveyed this sentence verbatim, but the investigator understood the meaning. "You're a literary type, so I took that to be a metaphor."

Nonetheless, CCA launched an investigation into whether rows of men with clubs had been attacking me on Thursday.

Mr. Mills told me that he had not observed this. He did observe my being told to leave a court room but he said he did not report on this or any of my other concerns about my access being obstructed by verbal instructions or people keeping me in and out of locked areas. Instead of investigating specific charges about CCA obstructing access to the courts, CCA investigated a metaphor.

Sincerely,

Jacqueline Stevens

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UPDATE 3/15/10: Maria Hinosa read this post and interviewed me about Joseph Anderson for the NPR show "Latino USA." It aired this weekend. You can listen to it here.

PRI "The World" Story on Illegally Closed Immigration Courts

From PRI "The World":
"Federal regulations on transparency say that US immigration courts must be open to the public. But a California university professor found that's not always the case. Reporter Claudine LoMonaco has the story from Tuscson, Arizona."

Listen here, on PRI "The World," first broadcast on April 29, 2009.

Claudine LoMonaco put together a very impressive piece of radio journalism in which she develops a narrative tying the unlawful ICE detention and deportation of U.S. citizens to the unlawful ICE prevention of access to some immigration courts in detention centers.

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.)

ICE Detention Centers Unlawfully Close Immigration Courts to General Public

Greetings from Florence, Arizona. This morning I was unlawfully denied access to the immigration courts at the Eloy Detention Center run by the privately-owned CCA and the Florence Detention Center, run by DHS.

Last year when I attempted to gain access to the proceedings for a US citizen ICE was trying to deport (Rene Saldivar) at the Eloy Detention Center (about 30 minutes southwest of here), I was refused on the grounds that only family members and attorneys were allowed in. At the time, I was not aware of the rules governing immigration courts.

A federal prosecutor in San Diego last fall informed me that immigration courts are supposed to be open to the public, and sure enough, 8 CFR § 1003.27 states:

PART 1003 - EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

subpart c - IMMIGRATION COURT - RULES OF PROCEDURE

1003.27 - Public access to hearings.

All hearings, other than exclusion hearings, shall be open to the public except that: (a) Depending upon physical facilities, the Immigration Judge may place reasonable limitations upon the number in attendance at any one time with priority being given to the press over the general public; (b) For the purpose of protecting witnesses, parties, or the public interest, the Immigration Judge may limit attendance or hold a closed hearing.

(c) In any proceeding before an Immigration Judge concerning an abused alien spouse, the hearing and the Record of Proceeding shall be closed to the public unless the abused spouse agrees that the hearing and the Record of Proceeding shall be open to the public. In any proceeding before an Immigration Judge concerning an abused alien child, the hearing and the Record of Proceeding shall be closed to the public.

(d) Proceedings before an Immigration Judge shall be closed to the public if information subject to a protective order under 1003.46, which has been filed under seal pursuant to 1003.31(d), may be considered.

[52 FR 2936, Jan. 29, 1987. Redesignated and amended at 57 FR 11571, 11572, Apr. 6, 1992; 62 FR 10334, Mar. 6, 1997; 67 FR 36802, May 28, 2002]

I arrived at the Eloy Detention Center this morning to attend the 8:30 a.m. hearings. The guard asked me if I was an attorney or a family member. I said I was a member of the general public and it was my understanding that unless a judge or detainee had specifically requested a closed hearing, the immigration courts were open to the general public. An attorney waiting to go in specifically invited me to a hearing for a client he was about to represent in the courtroom of Judge Phelps.

The guard called his supervisor and a man identifying himself as Captain Adams came out. He told me that I needed to be ""preapproved." I asked if he was aware that immigration courts are supposed to be open to the general public. First he said yes, and then he said no and left to get his supervisor.

The Director of Security Carey told me I needed prior approval from ICE before I could enter the detention facility. I asked him how I should obtain this, who in ICE should I contact? He said I could contact "anyone." I asked what I needed to submit to them. He said I needed to give them my social security number, my date of birth, and my address.

The guard at the desk gave me the phone number for the ICE agents running Eloy and said maybe I could have a phone screening and come the next day. As cell phones are not allowed in the Center I returned to the parking lot, called the ICE number for Eloy and spoke with Mark, an ICE supervisor. He told me that everyone entering the facility needs a background check and that can take two weeks: "The problem is that anyone with a felony or misdemeanor conviction in the last five years can be prohibited to come in for security reasons."

I told him it was my understanding that unless a judge had closed the proceedings, the law said that immigration courts were open to the general public. He repeated the security policy for the facility and added that even contractors entering needed these checks. I told him that under the law contractors do not have a right to perform work at a detention center, but the law says that the general public should be allowed access to immigration court proceedings.

I then drove back to Florence to try my luck at the detention center run by DHS. The guard seemed to think it wouldn't be a problem and said I needed to wait for an escort. After about 15 minutes he said his supervisor called and that it would not be possible for me to enter. He gave me the number for the Florence ICE agents and the agent there told me something slightly different from the agent at Eloy, that I needed prior approval from the agent in charge of the facility. He connected me to this person and I got the voice mail for what sounded like a Janet Ellison. I left a message. She has not returned my call.

After making the call, I asked the Florence guard if he was aware that immigration courts were supposed to be open to the general public. He was affable and said "Yes, I know. I thought it was going to go good but then they called a supervisor and they said, 'no, we're not letting her in.'"

An EOIR spokesperson informs me that when reporters try to gain access to hearings in ICE detention centers and are rebuffed, EOIR tells them that EOIR only controls their buildings and that reporters must coordinate arrangements with ICE if the hearings are in ICE facilities. I suggested that this was not legal and that the EOIR either needed to pull their hearings from the ICE centers or instruct ICE on the law regarding the public's access to immigration proceedings.

Immigration court for detainees, the most legally fragile population in the country, already resembles a kangaroo court. They are the main victims. Justice does not flourish in secret court hearings. But US citizens also have a stake in seeing how immigration law enforcement is being implemented in their name. Open courts are a crucial part of a functioning democracy. Before DHS Secretary Janet Napolitano and Attorney General Eric Holder throw legal residents out of the country for crimes and misdemeanors, they need to follow the law themselves.