Al Jazeera Covers Deportations of Esteban Tiznado and Andres Robles

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

deported in 2008, 

Social Security number still not cleared in E-Verify

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

http://governmentillegals.org/RoblesComplaint.pdf

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

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

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

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

"They told me I almost died. 20 minutes longer and I wouldn't have made it."

Last week Esteban was collapsed in the shade of a mesquite bush along the highway 21 miles north of one of the more corrupt, fraudulent borders in a U.S. history not lacking for these  (In 1853, Mexican President Antonio de Santa Anna had the Spanish language newspapers from New York that reported the deal swiped off the streets so that Mexicans wouldn't learn of the negotiations, or the kickbacks he'd receive.)

The first Border Patrol truck whizzed by. Esteban had been vomiting food, then water, then blood. He wanted to be caught. The next car was civilian.  Esteban, 5'3", struggled to wave them down but they drove by. Shortly after that the border patrol returned and he flagged them down. When they saw him retching blood after drinking from the water bottle they gave him, they called for assistance and soon he had an IV in his arm.

Border patrol drove him to Tucson.  A few days later he was back in [town omitted to protect Esteban], talking to me on a cell phone, the first time I'd heard his voice since he was deported in July, I think. I lose track. Esteban's been deported so many times even he loses track.

Here's a slightly edited transcript of our conversation. (Esteban's so close to the border that Verizon thinks he is in the U.S. and his Tucson phone card works.) We spoke Monday, September 23, the same day I read the AP story on all the deaths in the desert from people crossing in Texas instead of Arizona.  But of course it's still very easy to die in the deserts of Arizona as well.

JS: Where are you? 

ET: [], Sonora on top of this mountain so I can get this line. Otherwise I can't hear. 

JS: How long does it take for you to go up the mountain? 

ET: Just four minutes. It's a small mountain. 

JS: What do you see? 

ET: The border. I'm right here on a little mountain and I can see the border on the other side. Just the border, just a little border on []. The line is right there, some bushes and a metal fence. It's big, about 30 feet tall. 

JS: Where are you staying? 

ET: I'm staying w. these people right now. Not the people I was staying with before. There are no jobs right here. This is a little town. They don't have no business. Just five little stores. No business, no nothing. 

JS: How did you end up with that family?

ET: Because I don't have nowhere to go. I don't have money to go somewhere else. They know me. They know my family. My brother's helping them. My brother he works roofing and sometimes he don't work. Roofing they just work two times a week. 

JS: Why did you cross last week? 

ET: I was always looking,looking for somebody else, to see who wants to cross with me. Someone told me there's another guy who wants to leave. He told me, "I want to leave but I don't have money to buy food. We need to buy food for three days." I told him, "I'll buy the food and you just go with me." 

JS: Why this guy?

ET: First, I saw these other guys. They said, "If you want to go to other side, put a bundle [of marijuana] on you back and we will take you back." I don't want to get in trouble. I don't want none of that. Then I would be in jail. See what happened last time? [Esteban was charged with drug smuggling and found not guilty.] I don't want to be passing through the same thing. I don't want to risk my life again. 

JS: Who was the guy you crossed with? 

ET: I don't know, an old man, 55 years old. He was in United States and was deported and was living in MX. He was in the US for 15 years. [He was deported] for drinking. He was living in Eloy. He was driving and got a DUI. 

JS: Could you cross and just follow the smugglers without carrying anything? ET: They used to let you, but not no more. They don't let people cross no more. They don't want illegal people crossing right here. The only people they let cross right here is if you're born here. [Esteban was born in []; his father, Jesus, was born in Arizona and had an Arizona birth certificate, and was married to Esteban's mother, which is why the jury in 2008 found him Not Guilty of Illegal Reentry.] They [the smugglers] are working all the time. I ask them, "When can I cross, I'm from []? They give you a day, "We're not going to work that day." They used to charge $300 but right now I didn't pay nothing. 

JS: What do they use when they cross? Trucks? Cars? 

ET: When they're going to cross bundles it's just people. And then people with binoculars to see the other side. Radios walkie talkies and everything. 

JS: What food did you buy? 

ET: Little cans of sausage, tuna, some tortillas, a lot of chips, little things, juices. 

JS: What did you use to carry things? 

ET: A backpack like the kind you use from school. 

JS: What time did you leave? 

ET: We jumped the border at 8 a.m. 

JS: How did you know where to go? How did you go over the fence? 

ET: Some people told us that you can cross by yourself. If you walk all the way to mountain, there's no fence no more, just a mountain. I want to go back with my family and I don't have money for coyote and I don't want to carry bundles. People said, go this mountain and go straight toward another mountain and stay between the roads and that will take you to Tucson. 

JS: Did you sleep at night? 

ET: We just walk in the day and sleep in the night. And when we start walking on mile 18 the border patrol starts following but they didn't catch up. We lost them. From there they saw us again and they was waiting for us on the road. We went to sleep right there, so they got tired waiting for us. Then in the morning at 6 a.m. we start walking. And that night I start feeling sick, start throwing up a lot. I drink the water and I'm throwing that up, and then in the desert you can die 

JS: Why do you think you had this problem and not the guy you were with? 

ET: I think I was locked up for 15 months with no sun [fighting his deportation] and so when the sun hits me, it hits me bad. That's what I think. JS: What was it like with the other guy when he decided to leave you? 

ET: He told me, "Now I'm going to leave you in the desert, good luck. I need to keep walking because if I stay here border patrol is going to get me for reentry and I don't want to do time for reentry. So i'm going to leave you." 

JS: What did you say? 

ET: I told him, "I'm going to give you a couple cans, but leave me a little water so I can get to the road." He said alright. In the morning we came out to cross the JS: How long were you waiting before you saw the Border Patrol? 

ET: About a half hour. I was on the side of the road, sitting under under the mesquite right there and then Border Patrol passes and didn't see me and another car passed and I ask them for a ride and they just keep going and i think they told [Border Patrol]. And they pass again. I was sitting right under the mesquite. They asked me, "You haven't drunk water for how long? I told them we finished our water and we drank where the cows drink water. That's where we got water, and I just got that dirty water. [Border Patrol] gives me water and I just start throwing up. "You're sick, I'm calling medical," the guy said. Another Border Patrol got there and gave me the things in Tucson. They were saying "Oh, how did you get out? You was doing 75 years." I never got no sentence for 75 years. "Yeah, you got 75 years. how did you got out?" I told them I walked away from a work furlough,and got 7.5 months. "On the paper the court put 'years.' How did you get out? You had sentence for 75 years." So that scared me, too. And then they said we're going to get you for Reentry. We're going to take you to CCA Florence to see the judge. I said, let me talk to my attorney. they said, we can't let you. I said I wanted to talk to the Mexican consulate. They called Jesse [Smith], Esteban's terrific defense attorney for the 2008 case] and the third day they released me. I think they saw in the computer that i beat that case. 

JS: Did they give you any paperwork when they released you? 

ET: They didn't give me nothing. I just signed one page. They gave me no copy.

Tonight  Esteban sent me a text.  He is going to try again.  As soon as possible.  As soon as he finds someone else to cross with him.

Government Keeps Thousands Locked Up for Months Without Final Decisions, Authorizes New Delays for Bond Hearings

On July 14, 2010, Brian O'Leary, Chief Immigration Judge for the Executive Office of Immigration Review (EOIR) issued an order authorizing arbitrary delays for bond hearings and case completions for people locked up pending determination of their citizenship or immigration status.

According to documents released to me under the Freedom of Information Act (FOIA), the Office of the Chief Immigration Judge established a 60 day case completion goal for 85% of detained respondents and increased from 3 to 21 days the time that people may be held pending bond hearings.  (The "redeterminations" refer to the immigration judges' initial bond hearings to evaluate the conditions of release set by the Department of Homeland Security, not reassessments of bonds set by the immigration courts.)

O'Leary signed onto a policy of the United States government holding people on the authority of DHS agents without any review for at least 21 days.  The data show that the agency has met this seemingly unconstitutional goal for 90% of those detained, and thus also shows that thousands of people are having to wait for more than 21 days for a bond hearing.  For instance, their data shows that for the first quarter of 2012, 1,324 people did not have bond hearings within 21 days of being taken into custody by DHS.

(The full release of this data includes analysis by immigration court and will be available here by zip file this weekend.)

Taking these data at face value, the government is funding the capacity to lock people up at a level greater than the capacity to provide the admittedly limited review for these custody decisions.

O'Leary's response to this is to sell out the rights of those on the EOIR docket.  Rather than release them because it is unconstitutional to hold people indefinitely without an independent review of their custody status, O'Leary is playing the role of the good bureaucrat and expanding the time frame for incarcerations so that it accommodates the rate of DHS lockups.

The case completion data also are troubling.  On the basis of their own data, 18% of people locked up have been waiting for their cases to have final decisions in a time frame we know is beyond 60  days.

Finally, it is not clear that the tracking information is accurately reflecting what is happening on the ground.  Each time a respondent moves from one immigration judge to another, the clock starts over for the EOIR tracking data.  For instance, when the EOIR violated Esteban Tiznado's due process rights by hand picking a former Office of Immigration Litigation employee to hear Tiznado's case in its Falls Church headquarters, instead of leaving it with the case load of Sylvia Arellano in Florence, Arizona, the clock would start over and the initial decision against Tiznado issued almost seven months after he was most recently detained would show up as being issued in the time frame from when his case was redocketed.

We know from the recent response to the budget sequestration that when the funds are short, the DHS will release people it would otherwise detain.  If the DHS will do this because it lacks funds for housing people, then  the DOJ should do this as well, when it lacks funds for protecting their due process rights.  If the EOIR cannot because of budget shortfalls staff the immigration courts at a level sufficient to protect respondents' constitutional rights, then O'Leary needs to instruct his IJs to order their release, not reset goals to accommodate indefinite detention.

This Is What Solitary Confinement Looks Like

A few weeks ago Esteban Tiznado sent me these drawings of what lockdown looks like from his perspective.  (If you click on them you'll see larger versions.)

http://www.governmentillegals.org/EstebanSolitaryRoom.PNG

The government's unconscionable treatment has been documented in previous blogs, including how Esteban ended up in the segregated units and 24/7 lockdown because he objected when a guard spit in his face.  I have since realized in the course of reading other complaints from U.S. residents locked up in deportation jails that this practice is not isolated to Pinal County Jail wing rented out to ICE and that guards across the country use their words to add injury to insult.

CURRENT STATUS
Esteban's case was pulled from the docket of Sylvia Arellano in Florence and assigned an October, 2012 televideo hearing before adjudicator Quynh Vu Bain in the EOIR Falls Church headquarters; no explanation was provided.  However, based on the experiences of Stephanie (Dae) Cho and her husband Edward Bloodworth in Atlanta, Georgia -- when Cho's case was pulled form Cassidy's docket after Bloodworth filed a lawsuit against Cassidy and EOIR adjudicator J. Dan Pelletier was assigned the case and quickly awarded her a green card -- it is clear that the EOIR hand picks adjudicators, something that would never happen in a real federal court system.  

Informally the EOIR admits that it tries to assign "complex" cases to "more experienced" IJs but Cassidy has lots of experience deporting people and when "more experience" means adjudication before a career prosecutor, this deprives respondents to their right to a neutral adjudicator and is a clear due process violation.

In Esteban's case, the EOIR picked someone whose entire career is devoted to defending the government.  Below is the text from the EOIR announcement of her appointment in 2008:

Judge Bain was appointed as an immigration judge in March 2008. She received a bachelor of arts degree in 1988 from Dickinson College and a juris doctorate in 1991 from the Dickinson School of Law of the Pennsylvania State University. From 2006 to 2008 and 1996 to 2001, Judge Bain served as senior litigation counsel and an appellate lawyer in the Department of Justice, Civil Division, Office of Immigration Litigation. From July 2003 to September 2006, she worked as a trial attorney in the Civil Division, Torts Branch, Environmental Torts Section. From 2001 to 2003, Judge Bain was detailed to the Office of the Deputy Attorney General where she served as counsel to the Deputy Attorney General. From 1991 to 1996, she was a trial attorney with the former Immigration and Naturalization Service (INS), entering on duty through the Attorney General’s Honors Program in 1991. From 2000 to 2006, Judge Bain also served as an adjunct professor at American University, Washington College of Law, where she taught two courses in asylum and immigration law. She is a member of the Pennsylvania and New York State bars.

Another irregularity is that right now the EOIR has Esteban scheduled for a hearing on Feburary 6, except that Bain made it clear to the attorneys that she would not be scheduling further hearings and would on the basis of their written and oral motions provide her decision in mid-February.

The fake hearing date is a symptom of a larger problem to be addressed in the next post in which I will be releasing a FOIA response with the data the EOIR is using to track how long it is taking detained respondents to have hearings.

For a very good article on Esteban's case, please read Tim Vanderpool's article in the Tucson Weekly.

Emergency Mandamus Petition Filed: Arizona District Court "granting ICE de facto jurisdiction to detain a person with a non-frivolous claim to U.S. citizenship"

Kara Hartzler, Esq. today filed an Emergency Mandamus motion with the Ninth Circuit on behalf of Esteban Tiznado, who has been locked up in solitary confinement by Immigration and Customs Enforcement despite a 2008 Arizona jury finding him "Not Guilty" of Illegal Reentry because of the copious evidence of his U.S. citizenship.

Ms. Hartzler's motion speaks for itself:

On May 30, 2012, Petitioner Esteban Tiznado-Reyna filed a petition for writ of habeas corpus and motion for preliminary injunction to the United States District Court of the District of Arizona. See Exhibit 1, Docket Report for 12-cv-01159-SRB-SPL. In this petition, Mr. Tiznado- Reyna contends that Immigration and Customs Enforcement (“ICE”) lacks jurisdiction to detain him on the basis of his non-frivolous claim to United States Citizenship. Six months later, the district court has failed to rule on the preliminary injunction or Mr. Tiznado-Reyna’s multiple motions to expedite, and the magistrate judge has failed to issue a Report and Recommendation on the habeas petition. The district court’s failure to act effectively abrogates this Court’s decision in Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008), which requires a threshold decision on ICE’s jurisdiction to detain a person with a non-frivolous claim to United States citizenship. On this basis, Mr. Tiznado-Reyna seeks an emergency petition for mandamus and injunctive relief.

The petition documents the numerous urgent habeas motions and filings on which District Court Judge Susan Bolton and Magistrate Judge Steven Logan have failed to rule, despite having the Government's response brief since July 10, 2012. The petition also highlights the many adjournments by the Florence immigration judge Sylvia Arellano, and explains how Mr. Tiznado-Reyna and his family are suffering as a result:

Mr. Tiznado-Reyna has now spent over seven months in immigrationcustody—much of it in solitary confinement. He suffers from depression and anxiety and has difficulty sleeping. Given the numerous continuances by the immigration judge, he has no idea when he will be released from detention. In addition, Mr. Tiznado-Reyna’s mother is partially blind and her health is in serious decline. Prior to his arrest, Mr. Tiznado-Reyna had served as her caretaker, but since his incarceration, she has been without  assistance. Mr. Tiznado-Reyna’s depression and anxiety is severely  heightened by his concern for his mother and his fear that she may pass away while he is in detention and that he will never see her again.

 This and numerous other cases in which the  federal courts are ignoring habeas motions reveal the government's refusal or inability to pay for the Constitutionally required protection of our due process rights.  Right now the backlog of cases is unconscionably pressing down on the bodies and spirits of people challenging the government's right to remove them from their homes and communities.

 If the government will not or cannot spend the money needed to protect our Constitutional rights while holding us in government custody, then it has abrogated its legal authority to lock us up and immediately must release Mr. Tiznado-Reyna and the tens of thousands of others being held amid interminable delays for immigration hearings.

Armed, Dangerous Criminal Gang Holding Tucson Man Since April, Conditions Worsen

Sheriff Paul Babe with Pinal County, Arizona deputies, 2011

"I'm stretching really bad right here, really depressed.  I'm in this county jail and it's really terrible because the officers right here are from county, not from ICE.  The people from this county, these guards, treat us like inmates."  --Tucscon resident and U.S. citizen Esteban Tiznado, November 13, 2012, in deportation proceedings and now solitary confinement. 

Pinal County, Arizona receives a $13 million annual contract from Immigration and Customs Enforcement despite long-standing documentation by government, media, and legal organizations of massive and sustained civil rights violations and calls to end contract with Pinal County Jail.  

County budget summary lists ICE contract as the sole source of increased revenues; property taxes go down as ICE contracts go up, from $839,791 in 2006 to $11,600,000 for 2009-2010--see Pinal County Budget, 2009-10, p. 309.   

ESTEBAN TIZNADO IN SOLITARY CONFINEMENT

Last Thanksgiving I wrote here about Tucson resident Esteban Tiznado being held by Immigration and Customs Enforcement after a jury found him Not Guilty of Illegal Reentry because of the copious evidence of his U.S. citizenship.  (For other posts on Tiznado, please go here.)  He's been waiting for over six months for an immigration hearing, as have thousands of others held in this area.  Worse, since September he's been put in solitary confinement.

In a pattern following the lack of due process documented by the National Immigrant Justice Center recent report, Tiznado was put here after a misunderstanding with a guard and Tiznado's request that she speak without spitting in his face.  The "hearing" to adjudicate this was a sham and he's now in the middle of a three month sentence to "the hole."

According to Tiznado, around September 14,

 I was taking a shower and heard what I thought was a guard calling my number.  I asked, 'Did you call my cell?'  She said, 'You don't have to be yelling from shower.'  I told her,  'I thought you called my name.'  I was waiting for someone to see me from the Florence Project. She just started screaming and yelling and spitting in my face. I start getting mad.  Somebody spits in your face, you'd get mad, too.'  She says, 'I don't care.   I do whatever I want. I'm the one, I run this place.'  I say, 'I'm not saying you don't run this place. I'm saying you're spitting in my face.'  She says,  'I'm going to send you to the hole. Go get your stuff.'

A sentence to solitary requires a hearing.  But it's strictly pro forma. For Tiznado, this meant a quick conversation with a sergeant who confirmed the fix was in.   "She said she was going to find me guilty," according to Tiznado, "I told her, please look up the camera video so you can see I wasn't doing nothing.'  She said, 'I don't have to see the video because I'm not on your side.  I'm on the side of the guard."

SOLITARY CONFINEMENT IN THE PINAL COUNTY JAIL

"You're just in the room 24 hours," Tiznado says.  But it's not just that.  The punishment for requesting to be treated like a human being means Tiznado cannot buy food to supplement the garbage he receives for meals.  He described breakfasts of a freezing cold boiled egg and a piece of bologna, a lunch of beans and rice, with the beans barely cooked, and "sometimes the food comes with hairs."  In the general population Tiznado could buy some soup or candy, but now this is it.   

Tiznado is in the unusual position to compare among ICE facilities and says, "In Florence (Service Processing Center) they treated us real good," but the bottom line is that he can't figure out why he's locked up at all, "I feel like ICE, they just kidnapped me."

While the rest of the country is facing budget shortfalls and Tiznado is receiving inedible food, Pinal County is receiving $13 million from ICE, even though their facilities are regularly condemned for these and many other abuses.  (For history of Pinal County's documented violations of its ICE contracts and links, see Matthew Hendly, June 2012 Phoenix New Times update.)

Immigration Judge Sylvia Arellano Ignores Ninth Circuit Precedent

Today, Monday, October 22, Esteban Tiznado was supposed to be attending his hearing in an immigration court in Florence, Arizona.  And his pro bono attorney David Ouimette was supposed to be presenting evidence of his client's U.S. citizenship.  But it's not going to happen.

In April, 2012, Esteban Tiznado, a U.S. citizen, at least according to an Arizona jury, was once again placed in removal proceedings.  Since then he's been locked up in the portion of the Pinal County Jail rented out to Immigration and Customs Enforcement (ICE) after an initial offer to release him on bond during the proceedings was made by ICE.  Tiznado's family has no funds for this and ICE refused Ouimette's request that the government release Tiznado on his own recognizance.  A hearing scheduled for July 16, 2012 never happened, and subsequent hearings also were cancelled.

As the screenshot above indicates, Tiznado is losing hope and thinking that the only escape from his purgatory might be another ICE bus ride to Mexico, from where he will return.  The bar against Double Jeopardy means he cannot be charged with Illegal Reentry but it also means constantly looking over his shoulder in fear of being held as is he right now.  (For the details of Tiznado's case, including evidence of his U.S. citizenship, please go here.)

Of the second cancelled hearing:
"I show up in Florence on August 21" said David Ouimette, Tiznado's pro bono attorney, and [Sylvia Arellano, the recently hired attorney working for the Executive Office of Immigration Review], tells me, "We scheduled two things at the same time again and I don't have time for this, and so we're going to postpone it," supposedly to October 22, today.  This time it was Ouimette as well who was being wrongfully detained by Arellano, whose failure to notify him in advance of this conflict meant a long commutes from Phoenix, a waste of most of the day. 

I.  Arellano v. Ninth Circuit June 10, 2012
Arellano's handling of Tiznado's citizenship rights is as adept as her clock management skills.  During the master calendar hearing she joined forces with those immigration judges whom an American Immigration Council Legal Action Center advisory points out are blatantly ignoring the Ninth Circuit mandate requiring ICE to hand over to respondents their so-call "alien" files.

In Dent v. Holder, 627 F.3d 365 (9th Cir. 2010), the opinion noted that the government had been withholding documents that were consistent with Dent's assertion of his U.S. citizenship.  The same is true for Tiznado's case. (I received portions of this from a FOIA response and it shows that the government had various Certificados de Inexistencia for Jesus Tiznado's birth, thus falsifying the government's assertion that Jesus was born in Mexico and not, as the state of Arizona states, Topawa, Arizona.)

The analysis in Dent v. Holder observes that the Constitution embodies the intuition that people have a right to evidence that will be used against them, and that the immigration court rulings that ignore this cannot be shielded by a law that would normally preclude review of their decisions:

 The law does not, however, interpret this rule absurdly, so that injustice may be done if the government successfully shields its documents from a person who ought to have access to them, particularly when the documents might change the result of the proceedings.

The opinion in Dent, in which the word "Kafkaesque" appears, notes:

 in the critical proceedings before the IJ neither the IJ nor the BIA nor Dent was furnished with the relevant documents. We have no idea why not. The only justification the government offers for why we all should have been left rooting around in the dark is in its 28(j) letter, arguing that the law did not require them to furnish the A-file. The government offers no reason why the A-file should not be furnished.

So you'd think that during the master calendar hearing, when Ouimette requested the entire contents of Tiznado's file, that Arellano would order exactly this.  Here's what happened instead:

Ouimette:   July 16 at 1 oclock would be acceptable your honor.

Arellano:   I would like for you to be personally present please.

Ouimette:  Yes.  With respect to the respondent's  A file, we've made a request for the file under the Dent v. Holder case and the counsel's response was that we needed to make a Freedom of Information Act request, which in my reading is clearly contrary to Dent v. Holder.  So we'd ask the court's assistance in getting access to the a file.

Arellano:  Mr. Morwood?

Dion Morwood [DHS attorney]:  Your honor, we have received the respondent counsel's Dent request and in reviewing that we note that, in regard to specific documents we will and I believe we have complied with that request. However, it appears that he's also requested the entire A file. And with regard to that request I would note the following. It is the Department's position that neither the respondent nor his counsel is entitled to full access to the A file because there is certain confidential, classified information that would not be discoverable such as attorney client or attorney work product documents, etc. However, the majority of the A file is available to the respondent but that's done through a FOIA request.

That's the proper method. there is a method for respondent's counsel that respondent himself will need to sign under penalty of perjury indicating that his file may be released to counsel. In addition to that he would need to submit a hearing notice stating that the next hearing date will be on the 16^th of July and specifically in the request indicate that the respondent is detained in the Florence Detention Center.

Arellano:  Anything additional Mr. Ouimette.

Ouimette:  Yes, I believe that suggested procedure is clearly contrary to the Dent case, which says that a FOIA request is not necessary  to get access to the file. And that's a case which is precisely similar to this one. It's a removal case.

Arellano:  I'm familiar with it sir. My ruling is that you will need to make a FOIA request.  Anything else sir?

Ouimette:  I would just note my objection on the record and make a request with respect to the filing of written materials prior to the hearing, since I still don't have access to the A file I request that I be allowed to do that one week prior to the hearing.

Arellano:  Um, that's a little tight for my purposes. But thank you for reminding me the document due date would be July 5^th for both parties.

In the meantime, Ouimette says, the DHS did not release the entire file but did eventually release to him some of its supposed evidence that Tiznado's father is not a U.S. citizen.  According to Ouimette  "There were several transcripts of birth certificates of numerous siblings, some stating Jesus’ birth in Mexico, and some stating his birth in Arizona."  In light of the extensive other documentation, these transcripts--no original were provided--seem much less relevant than the numerous records from the Mexican government at different time periods directly stating Jesus Tiznado was NOT registered anywhere as born in Mexico.

Moreover, nothing at all was turned over that would support an earlier government contention that other documents had been fraudulently altered.

October 22, 2012
Ouimette is confident of his client's case and wants a hearing so Tiznado can be released.  However, today all Tiznado will be facing another grim day of mistreatment at the hands of a guard who, Tiznado informs me, verbally abuses and literally spits on U.S. residents from Mexico who are locked up there, himself included.

In the meantime, Ouimette received a notice from the EOIR in the mail stating without explanation that Tiznado's hearing was rescheduled for December 11, and a new attorney assigned, immigration judge Quynh Vu Bain based in the EOIR's Falls Church headquarters.  The EOIR spokesperson tells me that an immigration judge in Florence retired and that may explain the docket shuffling, but Tiznado says other folks have not had their hearings postponed like this.  Moreover, a retirement is something that the EOIR would know in advance. Since the EOIR cannot manage to schedule a hearing, perhaps the EOIR should put up the bond.

II.  Unconstitutional Delays?
I made a request of the EOIR last week for information about why the case was being reassigned.  A spokesperson looked up up the case and said the database provided no entries that would explain the rescheduling. [UPDATE 5:30 p.m.--Here's what she sent me today from the EOIR database on Tiznado's hearings:

In terms of type of hearings, this case appears to have a master reset scheduled for 7/16/2012; an individual detainee hearing scheduled for 8/21/12; an individual hearing and a master reset scheduled for 10/22/12; and finally an individual hearing scheduled for 12/11/12. 

To be clear, none of these hearings occurred, and there is no explanation for how a master hearig could be adjourned to an individual hearing and then to a master hearing and then to an individual hearing with no motions or reasons given.

The spokesperson appears to notice these discrepancies as well:

Given that you’ve worked with Mr. Tiznado-Reyna’s attorney, before he may be able to shed more light on the specific reasons for these changes.

But Ouimette in our interview used words like "confusing" and "cockamanie" and couldn't account for this.

Tiznado has asked that I inform people of his plight; his mother is elderly and extremely ill--in fact this was a major motive for him to reenter last year and once again face removal proceedings.  Tiznado is shocked that he would have to stay locked up for nine months before a hearing.

It's true that Tiznado is receiving more legal assistance than if he were locked up in an area that lacked the vigilant support of folks at the Florence Project and its network of pro bono attorneys, including Ouimette, one in a small band of attorneys trying to shore up the rule of law against a flood of abuses as best they can.  Clearly an assigned government attorney who had the same extensive experience and resources in immigration courts as the DHS attorney (this is Ouimette's first case in an immigration court since several he handled in the 1980s), including the full contents of the DHS file, would substantially alter the playing field.

It would indeed appear that the logic of Zadyvas v. Davis might apply: if it is unconstitutional to keep people locked up  indefinitely, or just more than six months, if they concede removability, then it would seem to be unconstitutional to hold someone indefinitely who is amenable to a hearing and is prevented from this only because the government itself cannot be bothered  to show up. 

A habeas motion?  Right, well, like Dent, a habeas motion was indeed filed on Tiznado's behalf.  A gaping Constitutional black hole is now apparent: it is taking federal judges months and even a year to decide on these habeas cases.   A scary scenario is unfolding whereby if the legislative and administrative branches pursue actions that are violating our rights on a sufficiently massive scale by keeping us locked up without a hearing, then waiting in line for a court date to appeal this turns into another iteration of the harm that is being challenged by that habeas appeal.

The only way to crack this through the courts would appear to be some form of queue jumping to an appellate court on the grounds that failure to rule within six months on a well-founded habeas claim by someone who is locked up in an immigration jail could be construed as an effective denial of rights established under Zadyvas v. Davis (2005), although even if a few lucky individuals miraculously prevailed, the next cohort would presumably clog the appellate courts as well. 

Tiznado is being held under a law that requires mandatory detention of criminal aliens, except that he wants to prove he is a U.S. citizen.   As far as being a flight risk: the only person who has failed to attend his hearings in the immigration courts has been Arellano.  Esteban Tiznado never made a single decision in his life that resulted in someone being wrongfully locked up for a minute.


Correction: An earlier version stated Ouimette had driven twice to Florence.  Ouimette was notified in advance that the July 16 hearing was cancelled, but was not alerted to the cancellation of the August 21 hearing.  

DHS Hides Government Documents Confirming Esteban Tiznado's U.S. Citizenship

 

  FOIA response--New evidence, United States government possesses official Mexican documents contradicting DHS and prosecution assertions that Esteban's father was born in Mexico

As reported here several months ago, a jury found Esteban Tiznado had acquired U.S. citizenship at birth, through his father Jesus Tiznado, but in late 2011 Immigration and Customs Enforcement (ICE) deported him anyway.  ICE continued to insist that his father was born in Mexico and not the United States, Jesus's Arizona birth certificate notwithstanding.   (Jesus is now deceased.)

Esteban returned to Arizona in 2012, was arrested because of his deportation order, and for almost two months has been in an immigration jail, awaiting a June 4, 2012 hearing.

Documents recently received in response to a request under the Freedom of Information Act show that the government actually approved Esteban's petition for U.S. citizenship in 1980 but never informed him or his siblings of this, and then pursued efforts to reverse the approval, going so far as to hide records from its own investigation that confirmed Esteban's claim to U.S. citizenship.  The result has been the ethnic cleansing of Esteban and his family from their rightful places in their Tucson homes and history.

From Esteban's 1084 page file, of which 148 pages were redacted in their entirety:

INS Never Sends Esteban's February 17, 1980 Citizenship Approval.

 Note that there is nothing to indicate that there was any tampering or fraud involved with the documents submitted and that they were "seen and returned."  Nonetheless, On May 1, 1989, an ICE predecessor agency Immigration and Naturalization Service (INS) agent wrote a letter to Jesus Tiznado stating that it was revoking the approval he never received.

1982 Investigation
Two years after approving the Tiznado petition to recognize Esteban as a U.S. citizen, the INS Tucson office initiated an investigation into the validity of  Jesus Tiznado's delayed birth certificate showing birth in Topawa, Arizona.

In a request of the Mexican government to search for "Birth Record or no existence Record" for Jesus in El Plomo, Sonora and Hermosillo, Sonora, the INS officer wrote: "several of the children have his place of birth as Topawa, Az. and several have it as El Plomo, Son., Mexico.  The ones that show Arizona have been altered...It is possible that we have a suspect third party agency involved."

-The Mexican government conducted the search and a December 14, 1982 notation on this same document indicates the INS received documents from the Mexican government certifying its search of official and church records revealed no records of birth for Jesus Tiznado.



 1985 Investigation
Not content with these responses, the agency in 1985 continued its efforts to purge Jesus and his children from the ranks of U.S. citizens, requesting on this occasion a search of the records in Rancho Vera Cruz, and requesting yet another request of the records of El Plomo, both in the state of Sonora.

 Not only were no documents found but the Mexican government issued several certificates stipulating that these records did not exist.

 Furthermore, Esteban's 1979 certificate of legitimacy issued by Mexico states Jesus Tiznado was born in Topowa, Arizona, and shows no indications of having been altered, nor does the INS suggest otherwise.

Indeed, INS records also show that immediately upon copying the records, the originals were all returned, raising questions about the basis for the officer's assertions that they were "visibly altered."

2010 ICE Arrest Report States Jesus Born In Topawa, Arizona
Furthermore, ICE's own recent records indicate Jesus Tiznado IS a U.S. citizen.
An October 18, 2010 ICE warrant of arrest and removal issued in Salt Lake City for Esteban indicates that Jesus Tiznado's nationality is "United States."

(Why did they nonetheless deport Esteban again?  Because that's what ICE does.  The ICE arrest report notes Tiznado's 2000 conviction for Illegal Reentry but has no reference to the more recent Not Guilty verdict from his trial on the same charge in 2008.)

Why the change between 1980 and thereafter?

The May 1, 1989 letter states the reasons for this decision: "an investigation into the documentation used to obtain the delayed birth certificate [for Jesus], documents relating to other family members, and the testimony of various family members which is a matter of record..."

An undated report titled "Esteban Tiznado-Reyna, United States Citizenship Analysis" by DHS Assistant Chief Counsel Robert C. Bartlemay appears to have been prepared in late 2011, after Esteban had emphasized to his most recent ICE captors the 2008 jury Not Guilty verdict based on his U.S. citizenship.  It appears to be a justification for proceeding with his deportation despite evidence of Esteban's U.S. citizenship. 

This analysis provides the most explicit factual allegations for this reversal.  It is a deeply disturbing document, and will be more so if it turns out to be representative of how the Tucson office was handling citizenship applications for people of Mexican descent.

For its 2008 Illegal Reentry prosecution, the U.S. claimed that Esteban's sister's birth certificate indicated that Jesus was born in Rancho Vera Cruz, an assertion the jury rejected after hearing the testimony of USCIS officer Jaime Yslas and that Bartlemay reiterates.

Bartlemay never mentions any of the  the Mexican government's research falsifying the U.S. government's claim Jesus was born in any of the places INS claimed he was born, including Rancho Vera Cruz.  Bartlemay never reflects that the evidence in his own dossier shows only one government issued a birth certificate to Jesus Tiznado: the government of Arizona, in the United States of America.

Instead, Bartlemay wades into irrelevant and unsubstantiated minutiae, much of which is actually falsified by the agencies' own records.  This includes asserting that Esteban's mother, "stated before an immigration officer that Respondent's father was a native and citizen of Mexico" and that "Respondent's father used one of his brother's paperwork to claim birth in the United States."   (Under oath during the trial and when I spoke with her, Julia denied ever making this statement and the government has produced no specific evidence of this alleged statement; other records attribute the statement to the daughter and it appears Bartemay just misread this.)

 More importantly, anyone with a passing familiarity with the documents, especially a government immigration attorney, would realize that such a claim can't possibly be true: all of the government documents the agency credits with (falsely) asserting Jesus's U.S. citizenship are in relation to Jesus's children or his wife.   That is, Esteban's and his siblings' birth certificates, Julia's marriage certificate, and the birth certificates of the other siblings are all from documents for Jesus's family members, not that of his brother, Miguel.

The only other document at issue that could have been altered would be the baptismal certificate, but I personally verified with the Pagago church that they have an entry in their original 1924 books for the baptism of Jesus Tiznado, as well as an earlier one for his brother Miguel, a point volunteered by the woman doing this search for me because someone had recently contacted them for this information to prove the U.S. citizenship of Miguel's grandson and Esteban's cousin, Humberto Tiznado.  (Humberto had been deported several times but in 2011 was issued his Certificate of Citizenship, thus confirming that these earlier actions were unlawful.)

There are a few other points Bartlemay raises to cast doubt but all of them are contentious and lack documentation, in contrast with the documentary evidence Jesus was born in Arizona.  For instance, Bartlemay credits his daughter's alleged statement that Jesus was born in Mexico (she also denied under oath making this statement)  but discounts a sworn statement about Jesus's birth in Arizona: "The affidavit prepared by Respondent's friend stated that he met Respondent's father when he [the Respondent] was three years old, and therefore could not provide evidence regarding the father's place of birth."

Who is more likely to have more immediate historical knowledge of a family's actual residence, an adult who knew Jesus Tiznado and his family since he was three, or Jesus's daughter, who denies making any statement indicating Jesus was born in Mexico and more importantly for these purposes was not cognizant of her family history until her father was an adult?

True enough, the burden of proof is on Esteban to come up with the documents proving he meets the criteria for acquired U.S. citizenship but the standard does not require people to overcome trumped up analyses based on secret and uncorroborated so-called evidence.

What Next?
Esteban has a hearing at the Florence Immigration Court scheduled for June 4, 2012.  This is a master calendar hearing, and thus it may be weeks or longer before Esteban's pro bono attorney David Ouimette has an opportunity to review the underlying documents or cross-examine the government experts.

Esteban's arrest a couple of months ago has devastated his family.  According to his sister, he was picked up because the habeas order prohibiting his arrest had expired; when Esteban saw some police, he ran.  And when they saw him running, then they chased him, caught him, and figured out he had been deported.  He's being held in the wing of the Pinal County Jail under contract to ICE. At the very least ICE needs to release him pending a hearing on the merits of his case.

Arizona demonstrably issued Jesus Tiznado a birth certificate. The Mexican authorities demonstrably did not issue Jesus Tiznado a birth certificate.  In light of this evidence, not to mention, the copious documentation of Jesus's residence in the United States for the requisite time periods, the DHS at the very least needs to comply with John Morton's November 19, 2009 memorandum requiring ICE not to detain someone with possibly probative evidence of U.S. citizenship: ""In all case, any uncertainty of whether the evidence is probative of U.S. citizenship should weigh against detention." 

For more on Esteban's case, please go here.

New York Times Hides Recent Deportation of US Citizens

My research on the unlawful detention of U.S. citizens was cited in Julia Preston's article today in the New York Times, "Immigration Crackdown Also Snares Americans." Unfortunately, Ms. Preston, whose focus was on situations in which US citizens were briefly detained, added, or her editor did, the following inaccurate sentence: "In no recent cases was an American placed in deportation." In addition, Ms. Preston misquoted me. Here is the email I sent to her this morning requesting that the Times correct the inaccurate statement by removing it.

Julia,

Nice story. You're about to read a long email with evidence to underscore a request for a correction but I want you to know that although I have a problem with an assertion you make, I really appreciate the work you put into documenting the particular cases and highlighting this problem.

I do have a major concern about the line before the last paragraph: "In no recent cases was an American placed in deportation." I have evidence to the contrary. I'm wondering if you could make a correction that removes this sentence entirely or qualifies it by attributing this assertion to ICE, if ICE indeed will make it.

One problem is that the sentence is grammatically incorrect. Someone is either a) "deported"; or b) "in deportation proceedings." The sentence is open to both interpretations. If the former, it is demonstrably inaccurate, i.e., Esteban Tiznado's case (ICE reinstated the old removal order and deported him in late November.) If the latter it is still a problem, depending on the timeframe for "recent" and the fact that ICE should be holding new proceedings if people have probative evidence of US citizenship, not simply rubber-stamping old paperwork. In other words, if ICE is not placing American citizens in deportation proceedings but simply dumping them in Mexico as they did in executing Esteban's Reinstatement of Removal, this is hardly evidence of their correct handling of US citizens.

Moreover, U.S. Americans have been in deportation proceedings recently. Esteban Tiznado has relatives in deportation proceedings now in Arizona.

Also, George Ibarra was locked up in Eloy until last May even though his deportation order was terminated last February by an immigration judge because of the evidence of Ibarra's US citizenship: ICE appealed; BIA remanded and the case is still open. Ibarra, in violation of the Morton policy, was locked up in Eloy pending the appeal, until I wrote about the case and someone from MSNBC arranged an interview w. Ibarra in the detention center.

Ibarra was released without explanation the day the interview was scheduled. (Ted Robbins did a story on this for "All Things Considered" that aired in October or November.)

As I shared with you a couple weeks ago, ICE recently has deported a U.S. citizen, Esteban Tiznado.

Esteban Tiznado was deported November 28 and is definitely a US citizen, and he's stuck in Mexico contemplating suicide because he keeps being deported. I have other cases from this year as well that I've documented -- these are cases in which DHS eventually recognized the US citizenship of the people they'd deported earlier. Actually, ICE deported Esteban's cousin Humberto in 2011 AFTER a US Asst. Attorney wrote ICE and asked them not to deport him because he appeared to be a US citizen.

'm wondering if perhaps you asked the govt. about Esteban and were then deterred by writing about this because of their misrepresentations? The Citizenship and Immigrations (CIS) officer who was representing the govt.'s case during Tiznado's trial was demonstrably misrepresenting the evidence, as I documented on Monday: http://stateswithoutnations.blogspot.com/2011/12/uscis-official-jaime-yslas-testifies.html (A jury did not believe the CIS agent and found Esteban Not Guilty of Illegal Reentry because he is a US citizen.)

There are other problems w. the CIS claims about Esteban's file I won't get into right now. They raise troubling questions about the whole process of how applications for Certificates of US Citizenship on behalf of people born in Mexico are being handled.

Also, I spoke yesterday w. the priest at the mission in southern Arizona that has the Tiznado family baptismal records. CIS questioned the authenticity of the certificate for Esteban's father's baptism, used for procuring a legitimate Arizona delayed birth certificate (no one in that area was given a birth certificate in 1922) but I spoke to the priest at the mission today, following up on my inquiry from last week: they have the contemporaneous 1924 entry of Jesus Tiznado's baptism on their books! Moreover, ICE on Friday called the Florence Project and said that if someone could send them records of Jesus's siblings' US citizenship, they would reevaluate Esteban's case. I have these records for Jesus's older brother Miguel, born in 1916, from Humberto's CIS case. ICE has had these records since Saturday, but still no word on their allowing Esteban back in.

In the event, I understand that you were not doing a story on US citizens being deported but I don't understand why you would then claim that this is not happening, and not qualify it by attributing this claim to ICE.

Finally, the last statement is not what I said: canaries have less of an ability to handle toxic fumes than miners. But US citizens under our laws have more rights to handle the hardships of deportation hearings than do immigrants, and thus, as I said, it's like sending a 900 pound gorilla into the mine. If U.S. citizens are not making it, then that tells us a lot. (I was thinking later that this was a wordy and perhaps clumsy statement and that I should work on my soundbites.) Also, I did not refer to the noncitizens as people here "potentially unlawfully"--I don't use that phrase and for these purposes it isn't useful. The legal distinction as far as rights are concerned is between citizens and noncitizens, and I think, but am not positive I referred to the latter, inelegantly, as "everyone else."

It's okay if you leave the quote as is but in the interests of accuracy I am requesting that you request the deletion of this sentence: "In no recent cases was an American placed in deportation." Again, I am sorry for this inconvenience but hope you can follow up on it as soon as possible.

Best wishes, Jackie

---------------
As of 10:00 CST I have not heard back from either Julia Preston or the National desk editor with whom I also shared this email.

11:15 a.m. I spoke with Ms. Preston and she explained that the sentence initially said that "In none of these cases" of the U.S. citizen on whom she was reporting were U.S. citizens deported, but that during editing those words were removed.

Ms. Preston said that the context of the article made it obvious that the sentence referred only to the U.S. citizens on whom she was reporting but then, when I pointed out that the statement appeared immediately above a quotation from me, and that my research was on national trends, agreed that the placement was "unfortunate" and one could interpret it to be a more sweeping statement. She said that because the statement was accurate "in the context of the article" the Times would not be issuing a correction.

UPDATE January 5, 2012: Just to be clear, the response from the Times is absurd; the context indicates no restriction to the cases on which Ms. Preston is reporting and to say otherwise is to ignore the plain meaning of the words and sentence. Moreover, the assertion could be at best a wild guess because often no one knows about the deportation of US citizens until well past the period of their deportation, e.g., the widely publicized case of Jakadrian Turner, deported in April, 2011. Moreover, I spoke this morning to Manuel Valenzuelas, a US citizen who, along with his brother, Valencia, have been fighting their order of removal for several years. I will post more on their case after I receive the legal documents but the short version is that their mother was born in the United States and thus they automatically acquired citizenship by operation of law at birth. Nonetheless, racial profiling at the El Paso border when they entered the US as children meant they were issued green cards and when ICE matched them up with some minor convictions they were put into removal proceedings; these are ongoing even though they have shared with Homeland Security agents and an immigration judge copies of their birth certificates, their mother's birth certificate, and their mother's death certificate. At no point has anyone accused them of fraud but DHS is trying to make them jump through the hoop of acquiring an N600. Manuel correctly asserts that this is not necessary and the papers he has presented are legally sufficient; nonetheless, ICE won't drop the case and the immigration judges -- one avowing he is under the authority of Homeland Security! -- won't terminate.

USCIS Official Jaime Yslas Testifies Falsely About Dual Citizenship

From the 2008 transcript of the prosecution questioning of USCIS agent Jaime Yslas during Esteban Tiznado's 2008 trial for Illegal Reentry

In addition to the false and misleading testimony of a US government official, this post documents the successful appeal of Esteban's cousin in June, 2011,
relying on the same evidence that also proves Esteban's citizenship

Last week I had the opportunity to read the transcript for Esteban Tiznado's 2008 trial in which an Arizona jury found him "Not Guilty" of Illegal Reentry because the copious evidence of his father's U.S. citizenship was consistent with Esteban's defense of U.S. citizenship, as argued by his court-appointed counsel, Jesse Smith.

The chief witness for the prosecution was Citizenship and Immigration Services (CIS) agent Jaime Yslas who, he asserted, was the "subject matter expert" on citizenship policies for District 25, which encompasses Arizona and Nevada.

If this guy's the "expert" no wonder U.S. citizens are ending up deported.

In addition to partial and misleading characterizations of the case documents and agency practices, Yslas made a statement about dual citizenship and nationality that is simply inaccurate. This and other partial truths Yslas made were all toward the end of depriving Tiznado of his U.S. citizenship.

Throughout the hearing ,the prosecution points out instances in which Tiznado states he is born in Mexico and a citizen of Mexico -- and the defense shows all the statements Tiznado made indicating that he is a U.S. citizen. Tiznado's attorney, Smith, points out that at the various points at which Tiznado failed to appeal his deportations and accepted the government's designation of him as a citizen of Mexico that he was in government custody and that conceding this would be a way to be released from it.

Smith also points out that Tiznado's statements acknowledging birth in Mexico, and thus Mexican citizenship, do not contradict an assertion of U.S. citizenship as well. In response, the prosecution pursues the following line of inquiry with CIS agent Yslas:

Q. Jaime, there's a discussion earlier about dual citizenship. If a person from another country applies for United States citizenship, can he retain or she retain their citizenship from that other country?

A. To become a U.S. citizen, whether you are naturalized or you derive citizenship, you are required to take an oath of allegiance where you denounce citizenship from your original country of birth or citizenship.

Q. So the United States does not recognize dual citizenship?

A. No, sir, but they recognize that other countries will possibly recognize dual citizenship.

This statement is demonstrably false. Here's a correct statement of U.S. policy on dual citizenship, derived from a definition of dual nationality, appearing courtesy of the State Department - drawing on 8 USC 1481 sec. 349 (a) (1):

The concept of dual nationality means that a person is a citizen of two countries at the same time ... Persons may have dual nationality by automatic operation of different laws rather than by choice. For example, a child born in a foreign country to U.S. citizen parents may be both a U.S. citizen and a citizen of the country of birth.

A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.

Note that there is no requirement for someone who derives citizenship, i.e., obtains it automatically by operation of law, to swear allegiance to the United States, a ludicrous requirement even hypothetically since this happens at birth. Also, the policy statement concludes, "The U.S. Government recognizes that dual nationality exists but does not encourage it as a matter of policy because of the problems it may cause." Note the initial reference to acquiring dual nationality due to an "automatic operation of different laws" -- the circumstance for Esteban's U.S. citizenship -- and the final reference requiring "intent" for relinquishing U.S. citizenship.

(I am quoting from the government paraphrasing 8 USC 1401 sec. 349 to emphasize that the U.S. government's policy of recognizing dual nationality or dual citizenship is the government's own interpretation of the statute, not mine.)

In other words, the CIS expert for District 25, in charge of adjudicating citizenship claims for the last 15 years, either does not know or is deliberately misstating a crucial policy on dual citizenship.

Other issues that come up raising serious questions about how the CIS handling of acquired citizenship claims for people born in Mexico are the time frame for these adjudications and Yslas's statement minimizing the importance of using an attorney when appealing a denial of a claim to U.S. citizenship.

Timeline Problem
The CIS received N-600 applications to award Certificates of U.S. Citizenship to the ten Tiznado children on June 18, 1981. CIS did not even bother to respond to the application until May 5, 1989, EIGHT YEARS LATER!

The Office of Inspector for the Department of Homeland Security (DHS) should look into the response times for N600 applications for people born in Mexico in comparison for those on behalf of people born in other countries -- I don't know anyone of European descent who had to wait EIGHT YEARS for a decision on an application for US citizenship. This delay itself is a sign of bad faith on the part of the CIS.

Mischaracterizing Relevance of Attorneys to an Appeal
CIS allows appeals of its N-600 decisions, for a price. As Smith points out, in 1989 that price as $110/person, or $1,100 for the Tiznado brood, not to mention attorney fees. The prosecution attempts to minimize this by pointing out that attorneys are not required for these appeals, and gets Yslas to play along:

Q: Do most people who apply for citizenship have a lawyer
representing them?

A: Very few do, sir.

The effect here is to suggest that lack of resources for a lawyer is no obstacle to a successful appeal and to further insinuate that the absence of an appeal implies a weak case for the Tiznados' citizenship claims. Both of these inferences are false. Of course an applicant with no legal training and no resources is going to give up, and this says nothing about the viability of their underlying claims. As the government expert and in the interest of justice, it would be Yslas's responsibility to explain this.

Nirav Parikh of the Parikh Law Group, LLC, Heartland Immigration, a national firm, told me his office receives about six inquires daily concerning denials of N-600 applications "from all over the world," estimating "five out of these six are viable, but only one of these five have the financial resources" to hire his firm, and thus about 80% either will not pursue the appeal or do so at a severe disadvantage: "For any appeal you need an attorney, someone who is familiar with the issues," Parikh explained, "You can do anything on your own, but you can't do it well an attorney," a point born out in the Tiznado case in particular.

Successful N-600 Appeal for Humberto Tiznado
As mentioned earlier, Esteban Tiznado's cousin, Humberto Tiznado, also had been deported and also had his initial application for US citizenship turned down. However, an attorney with the Federal Public Defenders office in San Diego, Sara Peloquin, filed an appeal and on June 11, 2011 prevailed. USCIS found that Humberto, who also had been in prison for Illegal Reentry, was indeed a U.S. citizen and that he had acquired this from his father, also called Humberto (and also wrongfully deported in the 1970s).

Humberto's great-grandfather is Esteban's grandfather. The CIS found that the copious documents of Esteban's grandfather's and his uncle's (Humberto's grandfather's) birth and presence in Arizona, obtained by a private investigator the Federal Defenders hired, proved that Miguel Gonzales Tiznado (Humberto's father) was born in Arizona in 1915. In doing so, the CIS relied on documents that should have been used by ICE to authenticate Esteban Tiznado's claims for U.S. citizenship through his father, Jesus Tiznado, the brother of Miguel Gonzales Tiznado. Had they followed the law, they would have heeded Esteban's plea to investigate further, rather than just throw him out, again.

Bad Faith at the CIS
During the initial questioning the prosecutor sought to establish that the CIS is a neutral party ("[Prosecutor]: How would you describe your relationship with the applicant? Are you their adversary?

[Yslas]: No, sir.") and thus their 1989 assessment of the application should be taken at face value. During the closing statement the prosecutor references statements by the CIS in 1989 claiming Jesus Tiznado was born in Mexico and says, "I can't imagine that the citizenship office would just manufacture that. I mean, that doesn't make any sense. Why would
they do that?"

Why indeed? Why did Jaime Yslas invent claims about the U.S. policy on dual citizenship to reflect poorly on Esteban, even while asserting no adversarial relationship between them? Why did CIS take 8 years before reviewing Esteban's N-600? Why did Yslas imply that one could effectively appeal a denial of an N-600 application without an attorney?

These are not hypothetical questions but part of the sad record of ethnic cleansing by the CIS. That someone with an Hispanic name is part of this should come as no surprise. The deportation machine would shut down without their participation. (Anyone who has spent a little time in an immigration jail knows that much of the daily business is conducted in Spanish, so much so that non-Spanish-speaking, English-speaking immigrants object to not being able to follow what is being said to them while in ICE custody.)

The fact that the immigration attorney is receiving calls daily from people who have viable U.S. citizenship claims CIS denied but that would appear to prevail on appeal, yet who lack the means to proceed, especially in light of Humberto Tiznado's effective appeal obtained through such services, is a matter of great importance to the civil rights of thousands and even tens of thousands of U.S. citizens.

In overruling a defense motion for a dismissal, District Court Judge Frank Zapata explained the central factual question on which the 12 members of the jury would decide.

The jury reviewed the CIS documents and decided Esteban was a U.S. citizen.

Instead of the prosecutor's hypothetical question, the real question is, Why assume that the mishandling of Jesus Diego Tiznado's application for his children's citizenship certificates is an isolated case? The refusal to recognize the U.S. citizenship for applicants born in Mexico deserves close scrutiny by the DHS Office of the Inspector General.

Speaking of Lawsuits Filed by U.S. Citizens Falsely Imprisoned by ICE......

Exerpt from November 14, 2011 U.S. Judge Magistrate's advisory decision denying most of the government's Motions to Dismiss Mark Lyttle's lawsuit

In response to the post last week about the government's false imprisonment and kidnapping of Esteban Tiznado, a reader posted a comment suggesting lawsuits are in order. Indeed.

Thankfully, people are filing these, and a recent judge magistrate's advisory decision out of North Carolina provides encouragement.

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

ANTHONY CLARKE'S LAWSUIT

As reported by Paul McEnroe in the Star-Tribune, Immigration and Customs Enforcement agents and attorneys shuttled Anthony Clarke among various immigration jails for 43 days, even though they had clear evidence of his U.S. citizenship.

The lawsuit filed on his behalf by Angela Bortel begins:

Plaintiff Anthony A. Clarke is a citizen of the United States. Notwithstanding that objectively verifiable fact, officer[s] of the United States Immigration and Customs Enforcement ("ICE") directed the unlawful arrest and detention of plaintiff in immigration custody...

The individuals named as decision-makers in Clarke's arrest and imprisonment are Special Agent Ulrich Palmer Denig, Special Agent Brenner Jennifer Skwira, and ICE Chief Counsel Barry Chait, Deputy Chief Counsel Ann M. Tanke, Assistant Chief Counsel Daniel Pornschloegl, and Assistant Chief Counsel Daniel Hetfield.

UPDATE ON MARK LYTTLE'S LAWSUIT

In October, 2010, Mark Lyttle, represented by Troutman and Sanders and the ACLU, filed lawsuits in North Carolina and Georgia.

On November 14, 2011, a judge magistrate in North Carolina issued the first substantive ruling, albeit advisory, on the merits of Lyttle's case. The governments motions to dismiss were largely DENIED and, if the federal judge responsible for the final ruling on this matter follows the advisory ruling, Mr. Lyttle should have his day in court.

In a 30-page advisory opinion, U.S. Magistrate Judge William Webb writes in response to the government's Motion to Dismiss due to the discretionary character of duties assigned to those responsible for deporting criminal aliens: "[T]his analysis ignores one crucial fact: these statutes give immigration officials the authority to detain 'aliens', and Plaintiff is not an alien."

Meanwhile, Esteban Tiznado, following ICE agents refusing his plea for an immigration hearing to present evidence of his U.S. citizenship, is penniless, homeless, and desperate in Mexico. Is it really the right policy choice for the government to deport anyone agents unfettered by public or agency scrutiny decides to deport and then dip into taxpayer funds to pay-out the few fortunate enough to make it back and find gutsy lawyers willing to take on a major bureaucracy happy to spend our money to defend its lawbreaking? When is the Department of Justice going to step up to the plate and start charging these agents and attorneys with false imprisonment and kidnapping?