DHS and Private Prisons Refuse to Release Records on Dollar Per Day Wages Paid to ICE Residents, FOIA Lawsuit Filed

The last year I've been conducting research on the legality of ICE contracts authorizing private prisons to meet performance goals by paying one dollar per day to the people they're locking up.  ICE is not forthcoming about the program and it has not responded to my FOIA requests submitted in the summer and fall of 2013.  

Current insights into the program are possible because a couple years ago I received a partial response to a FOIA request documenting ICE and private prison firms paying those in ICE custody one dollar per day.  In the wake of that release, reporters have followed up.  In fact, there have been intermittent reports on this since 2009, when journalist Susan Caroll described the program in an article in the Houston Chronicle.  

The government says the program is legal, but the scope and profits made by the private prison firms go well beyond the program's official description and are shocking. For instance, the 2012 Krome Facility Request for Proposals lists shifts for "detainee workers" alongside those paid prevailing local wages under the Service Contract Act.  The labor is a crucial part of running these detention centers.  

Note that there are 10 "detainee workers" per breakfast, lunch and dinner, for a total of 30 workers each day, but only eight legally paid employees assigned to the breakfast shift, and just six for lunch.  AKAL Security, which runs, Krome, relies exclusively on its resident labor force to serve dinner. In other words, most of its food service is performed by the folks it has locked up; whereas it is paying the outside workers $30 for a couple hours of work, it is paying 30 people for three shifts just $30 total.

This is arguably legal for criminal prisoners.  But the U.S. citizens and other residents ICE locks up are in civil detention and not  for punishment or rehabilitation.  There is a law that authorizes the government paying for this work, 8 USC 1555 (d); it comes out of the World War Two internment camps for civilian "enemy aliens" and prisoners of war .  If ICE paid people today at the same level it was paying those locked up in World War Two, the payments would be around $80 per day.  (INS was paying people 80 cents a day; the average daily cost in 1943 of detaining each person?  One dollar a day.)

Congress has outlawed hiring non-citizens to pick tomatoes for minimum wage.  Meanwhile, private prisons are reaping enormous profits by hiring at slaving wages residents, some U.S. citizens, most undocumented, for staffing facilities under contract to the federal government.  Providing super profits to a select sector, the program is artificially sustaining the private prison industry and their lobbyists, and thus also distorting federal immigration policy.

The only legal footing ICE has for the program is an ad hoc decision by a federal district court judge in 1990 that was copied and pasted into a Fifth Circuit opinion, Alvarado Guevara v. INS , 902 F.2d 395 (5th Cir., 1990).

Here's the complaint drafted by Attorney Andrew Free.  It includes a succinct description of the program's history and documents areas of concern.  I will release the working paper shortly.

Ex-Immigration Judge Jimmie Benton to US Citizen: Go tell it to the government

 CAUTION: This Post Contains Digital Audio Material That May Be Offensive To Some Civil Rights Attorneys

Houston Correction Corporation of America
Immigration Courts, July 10, 2013

  Retired Immigration Judge Jimmie Benton
Highlights EOIR Management and Training Weaknesses

Frank Serna wrote me from Houston CCA in June, where he'd been locked up for 14 months.   An immigration judge in 2004 held a hearing and found credible his mother's testimony and other evidence of his U.S. citizenship and terminated proceedings, but in 2012 Immigration and Customs Enforcement ignored Frank's narrative and their own records and brought him in again.  He was surprised, "ICE picked me up in 2009 and let me go."  After a six month sentence in Laredo in 2012 for drug possession he thought he was free, "But then when I got out, ICE was there, and I was thinking, 'Why are they picking me up?'"

Obviously this just had to be a huge mistake.   Serna, whose best language is English, said, "It seemed like a last minute decision."  Once he was in an immigration court one he figure'd he'd explain everything and be released.

But that's not what happened.   On May 8, 2012 Immigration Judge Jimmie Benton said he heard the 2004 recording in which Immigration Judge Cary Copeland in Dallas had terminated the proceedings.  According to the records, the government had failed to prove Frank was an alien and waived appeal.

Mail box ICE Houston CCA Visitors, 10800 Export Plaza

 Benton ignored the prior termination order based on a full hearing and kept Serna locked up.  Benton implies Serna's failure to obtain a Certificate of Citizenship is grounds for holding him at CCA  But unlike most of the population, the government had already brought Frank to immigration court and failed to prove his alienage.  Thus Frank is the last person who should need additional documents from the government to avoid deportation hearings again.  The government already knew it lost its case. Unless it could show it was closed without prejudice or fit some other exception, their day in court had come and gone.

Entrance to Houston CCA Immigration Court, photo by Sam Niiro

At the hearing on May 8, 2012 Frank, without funds for an attorney, tries his best to stave off this unlawful and unjust deferral of his freedom.  He tries to squeeze in between Benton's interruptions the correct legal analysis to explain how the law and facts confirmed his U.S. citizenship, but Benton cuts him off,  "That's for the government to determine, that's not for you to determine.  If the government determines you are not a U.S. citizen you can try to convince me."

 In other words, in some strange legal world of his own creation, Benton had decided that immigration courts are not part of the government, and also that he could have another agency make a determination that under res judicata was his to make.

Listen for yourself

Andrew Free, Serna's attorney, said of the May 8, 2012:

I have rarely had such a visceral reaction to a piece of audio. It's just infuriating. I found myself screaming at the disembodied voice of the judge in my laptop. 

About a year later (May 31, 2013),  Benton "separated from the EOIR" according to Lauren Alder Reid, a public affairs official at the Executive Office for Immigration Review.  Benton says he retired.  On June 7, 2013 Houston Immigration Judge Saul Greenstein terminated proceedings on the basis of reviewing the 2004 recording and immigration court order at the time.  Under Benton, the hearings had dragged out for over a year and Benton ordered him deported.  Greenstein, aware of all this, held the first hearing on June 3, 2013 and four days later Serna was released.

With unlimited resources at its disposal, and backdoor channels to sway Citizenship and Immigration Services agents from issuing people like Frank Serna Certificates of Citizenship -- more on that later -- ICE is appealing Greenstein's order.

Frank picking up mail informing him government will be appealing the immigration judge decision to terminate deportation proceedings

 Frank is having a rough time finding work in Texas.  E-verify is not his friend.  And he still needs to fight the government to remain in the United States. Attorney Andrew Free (who represents me in FOIA litigation) is now representing Frank before the Board of Immigration Appeals and is looking to help Frank close this chapter of his life sooner rather than later.

And Benton?  I saw him in his old grim, windowless court at the Houston CCA in July.  He was there to barter with the ICE attorney for his client's bond, along with the dozen other private attorneys.  I heard it was his first time back in his old court since he left.  The incongruity of the situation was palpable but it was business as usual, though Benton seemed to get a better deal from the ICE attorney for his client than the other attorneys did, $4,500 compared to the median $7,500.

Benton's Recollection of the Frank Serna Case and Others
We spoke today by phone. I asked him about the Frank Serna case and others in which the word was that Benton refused to allow hearings unless respondents first filed N600 applications.  He defended this practice, "I tell them, that way they have two bites at the apple," a phrase that I indeed heard verbatim from respondents and attorneys who had appeared before him.  "That way if they are unable to convince the government, they have an opportunity to try to convince me."  Again, pretty much what he told Serna during that hearing.

But all the cases I'd heard about, including Serna's, showed ICE attorneys in ex parte communication with the CIS and Benton rubber-stamping the denials.  I asked Benton if he ever terminated proceedings on the basis of US citizenship after an N600 application had been denied.  He couldn't recall any.

Benton said that the paperwork for the N600 applications helped prepare for the hearings, but the rationale only worked for the government attorney and himself.  He could not produce any reasons for why it would be beneficial for a US citizen to have to wait in detention for an N600 decision instead of having the hearing before Benton.  This isn't to say it's not a fair strategy for IJs who have confidence in their own abilities to independently evaluate an administrative record, just that Benton lacked the training and qualifications to do this, and admitted as much.  (Greenstein, on the other hand, is a former attorney in the Office of Immigration Litigation.)

And indeed when Serna's denial came back (via the government attorney, who gave a copy of it to Serna the day of the hearing), Benton just read it verbatim as part of the record for preparing the deportation order, and failed to countenance Serna's arguments about the evidence his mother shared with the immigration court in 2004.

Benton told me that if someone objected and wanted to have the hearing they could, though that does not seem plausible, at least for Serna.  In fact, even attorneys told me that Benton refused to have hearings unless they filed N-600 applications.

Benton also told me that he interviewed Serna's mother and made his determination only after he had reached her, or someone whose phone number Serna said was hers, and found the information she gave him not sufficient.  I was pretty sure that in that time frame, Frank's mother was deceased and asked if perhaps he was confusing that event with the hearing he'd listened to from 2004.  Benton then and in a subsequent email was adamant about having spoken with Serna's mother and that this was during a hearing.

After we hung up I listened to all the hearings.   At the September 12, 2012 hearing, Benton asks Serna about whether he reach his mother for documents or other assistance and Serna says, "Both my parents are deceased."  I'd be happy to give Benton the benefit of the doubt on this.  After all the guy's heard thousands of cases.  I don't think he lied per se about what he did, but he did misrepresent his temperment.  

After the N600 denial, which appears to have been accomplished in coordination with the ICE attorney, when Benton is ordering Serna's removal, Serna is agitated.  Making the same exact points that Greenstein makes a few weeks later, Serna points out that on the basis of his mother's testimony in 2004, the Dallas IJ terminated proceedings because he believed Serna was a US citizen.  Benton says, "We've got somethhing here that's more significant than the recollection of your mother. we've got documents."  Not only do the recordings show that Benton knew he could never call Serna's mother, or someone claiming to be her, they also show that he repeatedly dismissed the possibility that Serna might gather additional evidence to show that his father had filled out an INS form without quite understanding the question and thus misstated the first time he was in the United States, indicating it was 1954.  

During the hearing Serna says, "He was working in the Galveston docks in 1944" and asks to be released so he can obtain evidence of that.  Benton asks him how and Serna says he'll just go down there.  Benton laughs and says, "That's not going to happen" and orders Serna deported

Here's the verbatim text from the email I received today from Jimmie Benton following our conversation, when I sent him a link to the hearing where he tells Serna to file an N-600 application, quoted in full with his permission:

Sorry. I can not listen to the recording at my office because there are
no speakers attached to my computer. will listen to it this evening.

Regardless, I will swear to you that I called the person he identified as his mother to receive from her the information she provided to IJ Copeland. There was no written decision in the ROP explaining how he arrived at his decision.

Yes, my general policy was to require N600 to be filed before I would consider hearing evidence of US citizenship. By my way of thinking that gave respondents two opportunities to establish their claim, organize their evidence and at the same time provide me the DHS position on the citizenship claim.. In a number of cases DHS found they were citizens, issued certificates of citizenship and motioned to terminate proceedings.

I do recall instances were DHS refused to adjudicate the N600 because the fee was not paid and they would not issue a fee waiver. Those cases I decided without DHS' adjudication.

Based upon the two cases you brought to my attention I was obviously flawed in my analysis of the citizenship claim. It would also be fair to say that I was weak in the area of citizenship. This was definitely something that EOIR should have addressed in the form of training. The substantive IJ training involving active give and take, questions and learned input from colleagues has been sorely missing for several years now.

I retired on May 31, 2013. None of my decisions have ever been the subject of discipline, admonishment or attention by the Chief Judge. The one complaint against me in my nearly 18 years on the bench involved an off the record statement I made to Respondent's attorney wherein I told her that if the case was remanded I would understand if she ask that I recused myself (this was an LPR cancellation matter).

My decision to retire was manifold: retirement eligible since 2011, lack of professional respect for OCIJ management because my immediate supervisors could not find there way around an immigration court, lack of meaningful training, crushing case load, the current flux in the immigration laws (not comfortable with issuing removal orders for people who may in the near future be eligible for releif) and my desire to enter private practice where there is no pressure to be financially successful.

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

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

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

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

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

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

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

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



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

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

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

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

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

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

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

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

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

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

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