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.

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.)

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.

Kidnapped Canadian, Part V: ICE Holds Kenneth Murray in Arizona For Weeks After DOJ Authorizes His Release

Drawing from recently obtained immigration court records, this is the fifth of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. Part I here; part II is here (arrest in Sweetgrass, Montana); part three here (first immigration court hearing), and part four is here (second immigration court hearing). For entire series, click here and read from bottom up.

The image above is the Florence Correctional Center, run by the Corrections Corporation of America. Kenneth Danard was unlawfully held here from November 26, 2008 to January 20, 2009, wearing what he said his podmates in the custody of Immigration and Customs Enforcement (ICE) called "chicken yellow" jumpsuits .

On December 29, 2008 Bruce Taylor, an adjudicator employed by the Executive Office of Immigration Review, an agency of the Department of Justice, issued an order that ICE release Mr. Danard under the terms of a voluntary departure. Mr. Danard's wife Rachel immediately purchased a plane ticket and provided the confirmation number to his deportation officer for the purpose of arranging a trip to the Phoenix airport and a direct flight to Edmonton as soon as possible.

ICE ignored this information, and two subsequent notes from Mr. Danard pleading for a trip to the airport so he could leave his confinement, paid for of course by U.S. taxpayers.

(The eventual monetary cost of the FCC incarceration would be about $5,400, a figure that does not include the ancillary labor costs for the attorneys, immigration court adjudicators and staff, and other administrative expenses, including the time of the Canadian embassy staff. The costs to Mr. Danard's business also are not figured here, nor the incalculable price of the loss of his and his wife Rachel's faith in justice and fair play.)

ICE records released to the Canadian government and then to the Danards show that on January 8 and January 9 Mr. Danard's deportation officer (the name appears to be Schlung), responded to Mr. Danard's queries about his departure by saying arrangements were being made and he would leave "soon."

Under the terms of a "voluntary departure" a respondent agrees to leave the country at his own expense, usually a very expensive open ticket, so that ICE can arrange the trip to the airport at its own convenience. The incentive for this and not a "removal order" is that the latter not only imposes more stringent requirements for attempting to return but it also leaves one at the whim of the government-paid flights organized by the U.S. Marshals. By granting Mr. Danard voluntary departure the adjudicator was attempting to hold up his end of the coerced deal (see previous post) and allow a speedy return.

Mr. Taylor, when he gave ICE until January 20 or "any extensions as may be granted by the District Director, Department of Homeland Security" envisioned this outside date as allowing Mr. Danard the maximum flexibility in obtaining his plane ticket--not purchasing a ticket by the stated date would violate the terms of the voluntary departure agreement and allow ICE to remove Mr. Danard on its own planes and with more stringent conditions for his return.

ICE took advantage of the regulation's demonstrably unfounded assumption that ICE would not deliberately incarcerate at taxpayer expense someone who had the legal authority and means of leaving the country, and waited until January 20, three weeks after the hearing, before giving Mr. Danard his freedom.

ICE RESPONSE
Last month I sent ICE's Ernestine Fobbs a few questions about Mr. Danard's case, along with a privacy waiver signed by Mr. Danard. I asked if it was consistent with agency policy for ICE attorneys to file a motion to reopen without evidence sufficient to overcome a termination order, and also whether it was consistent with ICE policy to hold people for several weeks after they had procured an order for voluntary departure and a plane ticket to their home country.

Ms. Fobbs replied:

It is ICE's policy that we do not comment on ongoing investigations and
pending legal actions. However, for the information that you are
requesting you can submit a FOIA request.
http://www.ice.gov/foia/index.htm/.

In my response I pointed out that "ongoing investigations" and "pending legal actions" are two separate matters and asked which one specifically was the alleged grounds for not replying. And I mentioned that her last sentence appeared to be an error: "I am not sure how you understand that this is a request covered by the FOIA. The FOIA does not require agencies to produce new information about policies, as the
questions I posed anticipate."

The Freedom of Information Act covers only systems records, i.e., documents the government already has on file so to speak. The Public Affairs office is the appropriate office for reaching out to agency officials for answering policy questions.

Ms. Fobbs did not reply nor did she respond to two phone messages requesting elaboration. Moreover, in early September Mr. Danard finally received his DHS file in response to his own FOIA request. It is a 118 pages. 109 pages are blacked out. The FOIA exemption cited was a law enforcement investigation.

I recently noticed in correspondence forwarded to me by the Danards that in March, 2009 the Department of Homeland Security's Office for Civil Rights and Civil Liberties replied to the Danard's complaint about their treatment by stating that their letter was being forwarded to ICE's Office of Professional Responsibility (OPR), as this was the component appropriate for reviewing their concerns.

Rachel wrote that she tried to follow-up but nothing happened:

I phoned a few times, to inquire on our case. They kept telling me they never recieved my complaint, and I gave up, guessing that's what thay were tring to
accomplish, another DHS win.

The letter stating the matter was forwarded to the OPR would be seen by the FOIA office folks who would immediately flag that as a reason not to release the file, even if there was no actual investigation.

The DHS's abuse of the FOIA exemptions is not a situation unique to the Danards. In the case of Mark Lyttle, a North Carolina native who speaks no Spanish and whom ICE deported to Mexico, ICE refuses to respond to a FOIA request for his own hand-written grievances written while he was unlawfully locked up in the Stewart Detention Center in Lumpkin, Georgia. The office did confirm that he submitted eight grievances totaling 20 pages between November and December, 2008.

In Mr. Lyttle's case ICE is not even claiming that it has initiated an investigation but only that one is "pending," a position the DHS Office of the General Counsel upheld after I appealed it. (I stated that the time-lag between the events in question and the "pending investigation" was not consistent with any legitimate law enforcement efforts--what sort of inquiry is going to happen almost two years after the fact?--but was consistent with hiding behind this FOIA exemption to avoid transparency and accountability. (It is of course impossible to know if an investigation is actually pending until it actually happens; all we know for certain at this point is there is a possibly pending investigation. This obfuscation is typical of ICE, which refuses to provide a time frame for falsifying its assertion of a pending investigation.)

Mr. Danard writes, "John Lennon summed it up when he said our leaders are all insane."

CONCLUSIONS
Many of Mr. Danard's problems occurred because bad laws authorized a context for empowering ICE and border patrol agents to think they could behave unlawfully as well. For instance, a law that authorizes the government to keep people locked up WITH NO REGULATIONS governing their treatment is going to empower the people running these places to feel authorized to do anything at all, as is a law that allows the government to lock up foreigners without assigning them legal counsel.

Likewise, a law whose purpose is to give special privileges to Canadians needs to be rewritten when its effect is to deprive them of their liberty, and the same for the voluntary departure regulations.

Still, there are at least two moments of Mr. Danard's apprehension and incarceration in which the government clearly broke even the flimsy laws that might have protected him:

1) The Border Patrol agents in Canada deliberately provided false and misleading information on the charging document--they only had legal grounds for charging him with being inadmissible at their own port of Sweetgrass, Montana, and not El Paso, the port indicated on the Notice to Appear. Instead, knowing that Mr. Danard had left the U.S. and therefore requiring him to apply to re-enter from Canada, and knowing that he never entered El Paso as a B-1 visitor, these agents deliberately omitted crucial information that would exonerate him and stated false information consistent with immigration violations that were the basis of a false arrest.

DHS components have the authority to hold someone who is inadmissible at the border, but DHS components do not have the authority to do so under false pretenses and deny those in their custody due process rights, most importantly the right to know why one is being held.

2) No one from DHS at the port, in transit, or even when Mr. Danard was in ICE custody for 9 weeks, gave him a copy of the charges against him, nor did his deportation officer meet with him even once. (ICE claims deportation officers meet with incarcerated people at least once weekly, a statement that people who are being held find a joke. I have never encountered anyone in ICE custody whose deportation officer has met with them weekly.)

If someone is held without legal authority and moved across state lines without his consent, this is kidnapping. Mr. Danard's legal custody by ICE requires that it follows certain steps, including most importantly, allowing him to know the conditions under which he is being held and giving him a list of people who might provide legal assistance. The officers signing off on the lines verifying Mr. Danard's receipt of these documents, including his alleged request for a hearing as opposed to waiving this right, say these documents were "refused," evidence consistent with Mr. Danard's claim they were never provided to him. (Further evidence of this is that the Canadian officials had to obtain the charges from the U.S. government and share them with Rachel, weeks after Mr. Danard's arrest.)

It is one more black mark on the immigration courts in ICE jails that not one but two adjudicators, including Bruce Taylor, who made a big show of Mr. Danard's "rights advisals" at the beginning of the hearing, failed to ascertain that through the course of two hearings, and eventually his entire time in ICE custody, Mr. Danard had never received a copy of his charges. ICE agents know these are systemic failures and rely on the incompetence of the adjudicators to cover-up their document fraud.

3. ICE is abusing the FOIA exemptions for law enforcement investigations, not surprising in light of the darkness advocated by the White House and Attorney General more generally.

Finally, the Danards are furious at their own government as well, for not pressing harder on the U.S. to assist in Mr. Danard's release. However, Canada has its own border policies and is upsetting U.S. citizens who, for instance, are refused admission because of drunk driving records--one of the few countries to make this grounds for inadmissibility--or for left media affiliations. Canada makes mistakes and holds people at their own ports for hours and even longer, posing significant hurdles to travel that perhaps gives the Canadian government pause when it comes to questioning the egregious practices of its neighbor.

Mr. Danard writes, "As to all this immigration nonsense, it bothered me watching my European counterparts deporting so many folks whose ancestral roots were at least American, be it north, central or south. Most of us are immigrants. I raised three Ojibwa step-sons. Maybe one day they will deport us back to Europe."

Kidnapped Canadian, Part IV: ICE Coverup and Extortion

Drawing from recently obtained immigration court records, this is the fourth of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. Part I here; part II is here; part three here. For entire series, click here and read from bottom up

The image above is the Canadian Consulate in Los Angeles, where Mr. Danard's own government unsuccessfully attempted to intercede and obtain his freedom.

On December 8, 2008, Mr. Danard won, ICE lost, and hence Mr. Danard was hoping to fly home immediately. However, unlike real judicial proceedings in this country, if the government loses its case in an immigration court it has 30 days to decide on whether it will appeal the decision. After it files the appeal, it will take several months, and some cases more than a year, for the Board of Immigration Appeals to rule on the matter. Pending the final decision, a respondent whom the government is alleging is deportable because of criminal convictions must await the outcome behind bars.

The result is that even when ICE loses the case on its merits, it has the legal leverage to force respondents into falsely confessing to the government's charges purely to avoid further delays in their release. In most cases, this coercion occurs with people who would like to remain in the United States, and hence there is a substantive good at stake--a non-citizen's right to U.S. residence--that gives these appeals some appearance of legitimacy.

In Mr. Danard's case, the record described below, including a signed form delivered to his deportation officer the day he arrived in Florence, Arizona, shows that ICE deportation officers and attorneys knew that he wanted to leave the United States, and yet nonetheless sought to prolong proceedings for only one purpose: achieving an ICE "win" at the expense of actually allowing him to leave the United States at the earliest point possible.

ICE MOTION TO REOPEN
On December 11, 2008, Robert Bartlemay, Sr., on behalf of the Department of Homeland Security, filed a Motion to Reopen Mr. Danard's case.

The motion contains numerous errors of fact revealing evidence of the DHS effort to run roughshod, and quickly at that, over Mr. Danard's rights, including the first sentence stating that Mr. Danard (his full name appears as the respondent) was in removal proceedings "under the name Guillermo G....." (last name omitted to protect someone else's privacy).

The rest of the motion is similarly out of touch with reality, including the statements that at his December 8, 2008 hearing Mr. Danard "admitted the allegations on the NTA," the charging document, and that he admitted that he "traveled to Mexico to buy a car." (Mr. Danard never conceded that he committed a Crime Involving Moral Turpitude, and he never stated that he flew to Mexico to buy a car; as indicated in the first post, he flew to Mexico for a vacation and ended up buying a car to drive back with stray puppies he and his wife Rachel were rescuing.)

The DHS needed to invent this motive of a car purchase because it would justify the fabricated statement on the NTA that Mr. Danard was in removal proceedings for violating conditions of a B-1 visa, a visa issued for business purposes. However, Mr. Danard never had a B-1 visa, nor did the government show otherwise.

Instead, the U.S. government created a story and, the day of Mr. Danard's arrest, lied to officials from the Canadian Consulate and claimed that he "knew he wasn't supposed to enter the US because he told officers that the was aware of this, but thought he would gamble anyway." In the margins, Mr. Danard has written, "These statements are completely false. Never would have risked going to gaol in your country."

The DHS Motion to Reopen attaches a list of Visa Waiver countries and proves that the immigration judge Richard Bartolomei incorrectly stated that Canada was among them. (Ironically, the purpose of this omission is to give Canadians the benefit of appealing a deportation order issued at the border in an immigration court, unlike Visa Waiver countries to which those prohibited entry must immediately return. DHS was turning a regulation designed to assist citizens from our friendly neighbor into a weapon for assaulting under pretense of legality a guy with long hair, a beat up VW, and puppies.)

Crucially, the DHS Motion to Reopen never offered new facts to challenge the initial decision's conclusion that the 1984 Burglary was NOT a Crime Involving Moral Turpitude. With no legal opinion supporting this charge, the government had no evidence for excluding Mr. Danard and ICE had no excuse for continuing to hold him in its jails.

Therefore, while the Motion might be relevant for the adjudicator's continuing legal education, it had no bearing on the government's legal authority to keep Mr. Danard locked up.

At this point Mr. Danard had been in touch with Katie Ruhl, an attorney at the Florence Immigration and Refugee Rights Project, a Legal Orientation Program in the area that provides limited legal advice and assistance to individuals in addition to its "Know Your Rights" presentations. According to email traffic from the Canadian Consulate in Los Angeles, who had been hearing from Rachel Danard and were trying for weeks without success to reach an ICE deportation officer, Ms. Ruhl had been in touch with Mr. Bartlemay, the DHS attorney, and obtained his agreement to drop the appeal and use the Motion to Reopen as an occasion for procuring Mr. Danard's release IF Mr. Danard stipulated that his 1984 burglary conviction was a Crime Involving Moral Turpitude.

This may look like a standard plea deal like those struck in criminal courts every day, but this deal was being offered AFTER an adjudicator had ruled against the legal conclusion forwarded by the DHS. In other words, the DHS knew that during the first hearing the immigration judge had thrown out their theory that Mr. Danard had committed a CIMT, and they knew that the immigration judge had ruled against allowing them an extension to pursue a fishing expedition to find something that might disprove his conclusions, and yet nonetheless went ahead and forced Mr. Danard into a hearing at which his only option for release from his unlawful confinement was agreeing to a statement that a Department of Justice official was on record as holding was untrue.

The second hearing was on December 29, 2008, over a month after Mr. Danard was kidnapped, and occurred before adjudicator Bruce Taylor, again in the Florence Service Processing Center, an ICE jail where, with other respondents, Mr. Danard had stood in a small room for hours before appearing in court.

Before arriving at the hearing, there had been several phone calls among officers at the Canadian Consulate, including those reflecting telephone conversations with DHS officers, although it was not until December 18, almost a month after Mr. Danard was in ICE custody that consular officer Marie Dextraze was able to actually reach a deportation officer in Arizona. She wrote to her colleagues that the officer had spoken "with the lawyers (did not elaborate, but likely the prosecutor) who would like for them to obtain copies of subject previous convictions in Canada. Officer [blank] asked if this is something we can assist with." This further proves that ICE was trying to deport Mr. Danard based on evidence that it did not possess, and that the agency was unwilling to heed the Canadian government's request to simply allow Mr. Danard to leave, rather than holding him and forcing him to leave.

The crucial part of the note states that Ms. Dextraze also spoke with Ms. Ruhl who

advised that she had spoke with the subject's prosecutor, Mr. Bartlemay, who would be willing to allow the subject to apply for voluntary departure. She explained that they were preparing a letter to the judge, who is absent until Dec. 29th, who would then reconsider then case, then make a ruling, [and] if all parties agree with voluntary departure travel arrangements would need to be made. This process would be much quicker than appeal which could take 4 to 6 months. She could not say why lawyers would be requesting info on subject's previous convictions other than to bolster their case for inadmissibility into the US.

Mr. Danard says, "To me it was extortion, and that's how it played out in the next hearing. If I admitted I was removable I would be cleared for voluntary deportation. If I wouldn't admit that, I would have to come back February 2d to prove why my crime in Canada was petty."

The second hearing opens, as did the first, with Mr. Danard saying, "I'm just looking for a way back to Canada. I'm a tourist, not an immigrant."

After swearing in Mr. Danard, the adjudicator, Mr. Taylor, asks if he was admitted into El Paso as a B-1 visitor. Mr. Danard, who still has not seen the charging document on which Mr. Taylor is relying, never answers the question and the adjudicator never bothers to look for government documents that might prove this allegation. (Again, none exist.) Crucially, once again, Mr. Taylor never bothers to check for Mr. Danard's signature on his Notice To Appear nor inquire if he received this.

Bruce Taylor, Immigration Judge, Florence, Arizona

The adjudicator, Mr. Taylor, asks the government if it has the conviction records, and the woman presenting the case for the DHS -- her identity is not provided -- says, "No, your honor." In other words, rather than spend its time securing proof that Mr. Danard was convicted of a CIMT, the government used its resources to pressure Mr. Danard into conceding this, hence obviating the need for evidence.

Mr. Taylor then pushes Mr. Danard to concede that he really was convicted of a CIMT. Mr. Danard had reason to believe that the description Mr. Taylor was giving him for a CIMT, "evidence of entry or remaining on the premises in a building or structure with intent to commit a theft," did not fit the circumstances of his own conviction, and when he hedged on agreeing he was convicted of a CIMT Mr. Taylor added, "If you want to contest your removability then we can set it for another hearing probably for February 2 or 3, and the government would have to get copies of your conviction records."

Why threaten this additional extension? This was the hearing scheduled following the court's acceptance of the DHS Motion to Reopen. If the government had no evidence to support the charges in the NTA, then why not do what Mr. Bartolomei did and simply terminate the proceedings, again?

There are three reasons the adjudicator may have had for doing this. First, most immigration judges come out of law enforcement backgrounds, including ICE, and are deferential to those holding these positions. Second, many also are are nervous that they might be throwing out a case for lack of evidence and then the respondent, on release, commits a horrible crime and the media blames the adjudicator. (In fact, this actually happened to Mr. Taylor two years later.) Third, immigration judges know that if they rule against the government instead of rescheduling, then the government will file an appeal, a process that will take months, and hence actually result in the unfair confinement of a respondent for a period longer than than if they reschedule.

Now that 50% of all immigration cases involve people who are locked up, the regulations fixing these parameters need to be revisited. Again, there is nothing about Mr. Danard's hearing that is unusual. But only rarely is the government's ability to abuse its regulatory discretion so clearly revealed.

Eventually, after Mr. Taylor asks Mr. Danard for the third time if he agrees that his conviction meets the conditions for a CIMT, Mr. Danard says, "I have no contest with the removal proceedings. I have no fight left in me." A few minutes later the government agrees to allow Mr. Danard to buy a ticket and leave as soon as the appropriate information is shared with his deportation officer, and Mr. Taylor suggests that Mr. Danard will be out soon. Mr. Taylor never hints that even though everyone had agreed Mr. Danard should be home, it would be three more weeks until this happened.

Final post tomorrow on how ICE held Mr. Danard for three weeks AFTER he purchased an open ticket to Canada, and the Danard's dissatisfaction with their own government's efforts on their behalf.

Kidnapped Canadian: Case Terminated But ICE Retains Custody, Part III

Drawing from recently obtained immigration court records, this is the third of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. Part I here; part II is here. For entire series, click here and read from bottom up.


On December 8, 2008, Kenneth Murray Danard, a Canadian falsely arrested by Border Patrol agents at the Sweetgrass, Montana Port and then kidnapped by Immigration and Customs Enforcement (ICE) agents on November 20, was taken to an immigration court inside an ICE jail in Florence, Arizona, the Florence Processing Center (FPC).

ICE was jailing a tourist who just wanted to go back to Canada so that the U.S. could deport him to Canada because, ICE alleged in a secret charging document, Mr. Danard's 1984 burglary was a Crime Involving Moral Turpitude (CIMT) and rendered him ineligible to enter the U.S. on a B-1 visa at El Paso, an event that never occurred and that the government never bothered to try to prove.

THE HEARING
The conditions under which the Executive Office of Immigration Review (EOIR) holds its hearings are an abomination to the concept of due process. By the time people held in the vast network of immigration prisons proximate to immigration courts in ICE facilities appear before an adjudicator, they have been standing since the wee hours of the morning in cramped rooms with no diversions or any other attention to their physical comfort.

If the conditions of life in the ICE jails were itself not grounds for abandoning their legal right to remain in the United States, the periods of waiting to see the adjudicators are one more reminder of ICE cruelty and the respondents' humiliation.

According to Mr. Danard, who was picked up with others from the Florence Correctional Center, a prison run by the Corrections Corporation of America (CCA),

at 4 a.m. they put you in a little room for hour after hour until they bring you in [to the hearing]. It's right in the immigration facility, a cell holding 25 people, standing room only. They put you through torture. We were there three hours and then people go to court room.

After their hearings the respondents are returned to the cell, the day interrupted only for lunch, consumed while standing in the same room. At 4:30 in the afternoon, they are brought back to their jail cells.

Watching people who have obvious legal status agreeing to be deported is tough--young men who have lived here since infancy cannot bear these conditions--and it is clear from their sometimes impassioned speeches that that the conditions of the hearings as well as the ICE jails are coercing false confessions to manufactured ICE charges, as eventually happened in Mr. Danard's case.

For Mr. Danard's first hearing the immigration judge, Richard Bartolomei, was in the building shown below, in San Diego, and the proceedings occurred via a televideo set up. Although Mr. Bartolomei possessed a copy of the NTA without Mr. Danard's signature, at no point did Mr. Bartolomei ask Mr. Danard if he had seen the charging documents.

According to Mr. Danard,

I had no idea what I was being held for. The guards claimed they had no access to my file, but that I wore a blue wrist-band ID meant I was not being criminally charged with a crime. I was surprised when Bartolomei said I had been charged with being illegally in the US, at the beginning of the hearing.

.

Immigration hearings are recorded and anyone who wants to do research on deportation proceedings would do well to obtain a privacy release and contact the EOIR's FOIA office to obtain these and the rest of respondents' files. (Alas, some adjudicators realize that the recordings may reveal their perfidy and simply turn the devices off, something that is unlawful but occurs regularly and can be discerned, for instance, in the hearings when there are obvious starts and stops without any indication that the adjudicators are "on" and "off" the record, a frequent violation of the Immigration Judge Benchbook of which the EOIR is well aware and has not remedied.)

In the event, Mr. Danard's hearing opens with him saying, "To me, the most important thing is to get back to Canada," and provides a fascinating look at the nuts and bolts of what happens when an immigration judge follows the rules and ICE does not.

Mr. Bartolomei asked the ICE attorney if she had copies of Mr. Danard's convictions and could prove they were Crimes Involving Moral Turpitude. She did not have the convictions and she could not prove this.

As is often the case, the ICE attorney asked for a postponement. As is rarely the case, Mr. Bartolomei denied this request. (Shockingly, immigration judges, at the expense of respondents' freedom, regularly grant extensions to government attorneys who don't do their homework. Instead of being penalized for coming to court unprepared, the government is actually incentivized to do so because the longer they drag out the proceedings, the greater the chance is that the respondent will abandon their legal fight and the government will "win" the deportation order even though the individual is in the country lawfully.)

Mr. Bartolomei asked detailed questions of Mr. Danard pertaining to his 1984 conviction. The adjudicator found Mr. Danard "credible," and concluded that the burglary was a "petty offense exception" to the exclusion for a CIMT. (Mr. Danard at age 17 hooked up with some kids who had already broken a store window and helped carry out some VCRs. They were immediately caught, the VCRs recovered, and over a year later Mr. Danard was tried and received a suspended sentence.)

Mr. Bartolomei also ruled, incorrectly as it turns out, that Canada is a "visa waiver country" and this was another grounds for terminating the deportation order.

Bartolomei: "What does the government want me to do, seeing that this gentleman wants to go back to Canada just as soon as possible?"

ICE attorney [name is unclear on the recording]: "Based on these convictions I would like a continuance." (The government wanted to hold Mr. Danard while it obtained the conviction records.)

Mr. Bartolomei: "I am terminating today based on the fact that these are visa waiver countries and that he is subject to the petty offense exception. You can certainly reserve appeal."

Mr. Danard then says, "The most important thing to me is to return to my family. I'd like to go home tonight if it's possible."

Mr. Bartolomei issues his decision orally and confirms this with a written order consistent with his statements during the hearing.

No doubt an additional reason for the ruling is that the government had no evidence for its charge regarding his B-1 visa at El Paso, a point that Mr. Bartolomei pressed and that the ICE attorney could not address. (As discussed in the previous post, this is because Mr. Danard never had a B-1 visa and before the hearing, ICE never informed him that this was a crucial element of the charge against him.)

At this point, ICE has lost a case that it never should have brought in the first place. But rather than release Mr. Danard, ICE continues Mr. Danard's torture by reserving the right to appeal Mr. Bartolomei's order.

More to come, on the second hearing, ICE's extortionist efforts to abuse the appeal process through its Motion to Reopen, and ICE's current statement about this case.

Kidnapped Canadian: "I'm Just Looking for a Way Home"

On April 30, 2010 I received the first of dozens of email messages with the subject heading "Kidnapped Canadian." They were from Rachel and Kenneth Murray Danard (he goes by his middle name), Canadian citizens who reside in Alberta. On occasion I changed the message headings to reflect the specific topic, e.g., "FOIA waiver form," but inevitably it was changed back. After receiving Mr. Danard's alien file from the immigration court and reviewing the hearing recordings, I understood why. What started out as a family vacation to Mexico turned into a nightmarish two months of Arizona prison life.

Their documents provide insight not only into Mr. Danard's own case, but shed light on systemic problems that pervade the immigration courts and jails. The moral and legal indignities visited on Mr. Danard include Border Patrol agents arresting him in violation of the policies for arriving tourists, not providing him a copy of his immigration charges, and then lying about this (a federal crime); Department of Homeland Security prosecutors abusing the procedures for filing a Motion to Reopen in order to extort a "win" for the government (Robert Barthlemay was the Florence DHS prosecutor who pursued this); an immigration adjudicator (Bruce Taylor) looking the other way and rubber-stamping the coerced agreement; and, especially upsetting, Immigration and Customs Enforcement Deportation Officers keeping Mr. Danard in confinement for weeks after Mr. Taylor had authorized Mr. Danard's return and a plane ticket home had been procured.

DOG RESCUE OPERATION IN MEXICO


In mid-October, 2008 Rachel and Murray, a field machinist, flew to Mexico for a long-awaited vacation. At some point they encountered these two dogs, then emaciated stray puppies, and decided to rescue them. To save money they decided to return home by car, and bought a used VW.

Border Patrol in El Paso waved them through on November 11, and the Danards entered Canada on November 20. However, the car, which was good enough to enter the United States, was not up to Canadian standards. They decided to turn around and sell the car in Montana.

That's when their lives changed. Instead of allowing them back into the U.S. after confirming their Canadian citizenship, a U.S. border patrol agent instructed Murray, but not Rachel, to fill out a visa form. "I am convinced that my choice to wear my hair long and never shave led to a type of discrimination others must suffer constantly," Mr. Danard told me later.

In filling out the visa form he honestly admitted to a 1984 burglary conviction, a crime that occurred when he was 17. This could possibly be construed as a Crime Involving Moral Turpitude, and thus grounds for inadmissibility (although an immigration adjudicator later ruled that absent government evidence to the contrary this was a "petty offense exception" and hence Mr. Danard was actually admissible).

In the event, the Customs procedures advise agents not to arrest Canadians in this circumstance but only to prevent their entry.

Instead of turning him around or allowing him in, the Border Patrol agents at Sweetgrass Montana, including Officer Larry Allen, arranged for him to be arrested and sent to an immigration jail.

Rachel described a wrenching scene of her being pushed out of the Montana office with the puppies, and watching her husband being kidnapped, sent first to solitary confinement in a local jail and then to a private prison in Florence, Arizona, where he was held through the Christmas holidays and not released until January 20, 2009.

[More later, on how Mr. Danard's initial court victory circumventing ICE's custody of him actually led to weeks more in ICE custody.]

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

--------------
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!