New York Times Hides Recent Deportation of US Citizens

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

Julia,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Best wishes, Jackie

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

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

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

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

How ICE Deported Another US Citizen, Andres Robles Still In Mexico

Andres Robles, 22, has a letter from US Citizenship and Immigration Services sent on June 15, 2011 stating he "derive[d] citizenship on June 13, 2002, when your father became a naturalized citizen of the United States." But the letter, under the Department of Homeland Security official insignia, is no protection against the armed gangs that roam San Isidro in Apozol, Zacatecas, where he's been staying with his grandmother since he was wrongfully deported when he was 19:

There's a lot of shooting, mafias. They do decapitations. The police don't really do nothing about it. They had a fair but no one went because of the mafia picking up people.

A post last week describes the absurd failures of the U.S. government to rectify it's admitted errors, including how the consular officers in Matamoros are failing to protect a U.S. citizen from the dangers described above.

The post here describes how this happened.

Andres, who speaks with a slight Louisiana drawl and understood little Spanish before his deportation, was ordered removed from his country on December 16, 2008 by an adjudicator he believes is John Ducks from the Oakdale Immigration Court because of the following miscarriages of justice and the law.

1) Immigration and Customs Enforcement (ICE) agents in the jail where he was first interviewed and then at what sounds like the regional Criminal Alien Program subfield office ignored his statements asserting U.S. citizenship because they didn't believe him, in the first place, and because, in the second, investigating them would be too much of a bureaucratic hassle.

In jail,

They [ICE] asked me if I had my papers and stuff, and at that time I didn't have an ID. I was 17. I didn't have any type of ID. I told him I had a father who is a US citizen and he said, 'Really, do you?' I told him, yeah. But he had a face like, yeah, right, like he didn't believe me.

This was at the Terribone Juvenile Detention Center, where ICE is busy deporting teenage US citizens.

At the small office where Andres was taken in 2008 after he finished his jail sentence, he again told the agent interviewing him that his father was a US citizen and he believed he also could be a US citizen:

I told them right there, too, about my father, and they said they would look into it. I remember they were going to show it to the main person there, but he didn't agree. They said just take him up to the jail. The person talking was a young person. He was alright, telling me what was going on. That's how I know the main officer there didn't agree, said it was too much paperwork.

The guy running the office knew that ICE was not allowed to detain US citizens, but simply ignored the plea to check the USCIS database. A few minutes of searching would have verified not only the US citizenship of Mr. Robles' father, but also the names and ages of his children, an easy means of confirming that the person in their custody was indeed the same person who had derived US citizenship when his father naturalized in 2002 and therefore should not be in deportation proceedings.

2) During the hearing the adjudicator ignored Andres and his attorney failed to appear telephonically twice. The first time, no one was available when the adjudicator called the law offices and the second time, a secretary appears to have participated by telephone instead of the attorney.

Mr. Robles' father hired an attorney who then failed to appear in the telephonic hearing, and instead designated his secretary to take the call from the immigration judge and simply agree to the deportation.

I told him [John Duck, Andres believes] that my father was a U.S. citizen. He didn't say much. I think he said it was too late to say that. They were just talking among themselves with the DA [the IJ, the immigration attorney's secretary, and the ICE trial attorney]. They asked me if I wanted to fight the case and everything, and I said not really, because I didn't want to stay another year in jail. So I got deported.

According to Maria Robles, Andres' older sister, the current attorney, Lawrence Fabacher, and her father have been faxing and calling the office of this attorney to request the file. "He's in hiding. He just ignores everyone. He's an attorney. He should have taken care of this. He basically just stole our money." Maria also told me that the secretary who appeared on behalf of the attorney quit because she didn't approve of how he ran his business.

(I left messages today at the two offices for Andres' first attorney, someone who runs one of those places that promises to sue for your back injury and help you immigrate. I will publish his name after he has a chance to respond to their allegations.)

[UPDATE August 30: The attorney Andres Robles' family hired and whose actions are described above is Rigeur Silva; he also ignored my several phone messages left with his receptionists in two offices, voice mail messages, and email messages seeking comment on these claims.]

3) ICE and the State Department's Consular Services are doing nothing to rectify their error.

When Mark Lyttle was deported, the consular office in Guatemala City contacted his family and within six hours had issued him a U.S. passport. Consular Affairs spokesperson Rebecca Dodds was not familiar with the deportation of US citizens and was very surprised when I told her about the expeditious treatment of Mark Lyttle, suggesting that official protocols would have required he wait much longer, though providing no information on these. "If someone comes into the consulate and speaks with an American accent and doesn't have the papers, then we would do what it takes to assist them." She refused to comment on why this did not occur in the Matamoros consular office because I did not have a privacy waiver and she is "never allowed to speak about a U.S. citizen," a status the State Department will assert only for the purpose of denying information about inept consular officers, as opposed to recognizing as a slam dunk acknowledgement that Andres should be allowed to return.

(Since USCIS has issued a letter to Andres signed by Jonathan Crawford verifying his US citizenship, there is no reason it should take more than a few minutes or hours at the most to verify the letter's authenticity by phone or email. If consular officer Maria Alvarado, who handled Mark Lyttle's passport in the Guatemala City, were in Matamoros, Andres Robles would be with his parents in Louisiana today.)

As usual, ICE has no response to queries about the agency's ongoing civil rights violations committed against U.S. citizens who appear to be of Mexican descent, other than spokesperson Ernestine Fobbs assuring me she is pursuing one.

Ms. Fobbs said she also was the person who was not responding to my earlier inquiries about the deportation, detention, and release of Marine and U.S. citizen George Ibarra over two months ago, even though the ICE Arizona spokesperson and my point of contact for that story was Vincent Picard. Ms. Fobbs claims to be still working on that but will provide no timeline for a response.

USCIS Says ICE Deported US Citizen, Andres Robles Still Stuck in Mexico

Andres Robles is celebrating his 22d birthday today in Mexico and not with his parents in Thibodaux, Louisiana because the U.S. government once again deported a U.S. citizen.

Instead of following the law that says U.S. citizens cannot be detained, much less deported, the government is channeling Kafka.

The letter Mr. Robles received over a month ago care of his attorney Lawrence Fabacher speaks for itself:

Dear Mr. Robles,

Your N-600 Application for a Certificate of Citizenship was approved on June 15, 20011 [sic]. You derive [sic] citizenship on June 13, 2002, when your father became a naturalized citizen of the United States. However, since you were deported from the United States, we are unable to complete the N-600 application process and provide you with a certificate of citizenship.

Upon your return to the United States, please make an appointment at the USCIS office closest to your current location. At that time, the local office will be able to assist you in obtaining your certificate of citizenship....

We have papers that will authorize your presence inside the Castle, Mr. Robles. But since we mistakenly threw you out of the Castle, you may not obtain them. Once you enter the Castle, we will be happy to provide you papers that will authorize your entry.

Mr. Robles is not without assistance. His attorney, Lawrence Fabacher, reached out to the Oakdale, Louisana ICE offices. ICE told Mr. Fabacher that Mr. Robles would have to resolve this matter at the U.S. consulate in Mexico. Andres' father flew down to Mexico and met his son at the U.S. consular office in Matamoros, a border city that is a 12 hour bus ride from Andres' current home with his grandmother in a small village 40 mountainous miles north of Puerto Vallarta.

When we spoke by phone yesterday, Mr. Robles said that the consular officer told them they did not issue "that kind of passport" and refused to assist him.

Andres' sister Maria, 26, also a U.S. citizen, told me that when her parents shared with her the results of their trip to the consular office over two weeks ago they were all devastated, "It's like the world's coming down on our shoulders. They were crying. He's growing up without us. I try to help them but I feel so useless."

Maria had in fact managed to track down someone in the U.S. Consular Office in Nuevo Laredo who followed up on her concerns and induced someone in the State Department in Washington, D.C. to call Andres. Andres told me, "He asked me all the questions you are asking: where I first crossed, the first time I crossed over, how old I was and all of that, where I went to school. They told me he would call me back and get me my passport, that I could pick it up at a border crossing."

But no one ever called back and the number he had for the individual with whom he spoke two weeks ago was a nonworking number with an area code for Trinidad and Tobago, perhaps the result of a transcription error.

Happy birthday, Andres. Hang in there. Wouldn't it be a nice present if the guy from the State Department called back today! You told me that you thought you'd been there since New Year's Eve, 2009, but I just checked and the immigration judge you think deported you, John Duck at Oakdale, ordered your removal on December 16, 2008, a week after the adjudicator William Cassidy ordered Mark Lyttle's deportation unlawful deportation.

I will post more on how Andres came to be deported early next week.

And I will also report any response to this from ICE or the State Department, though I am not holding my breath. ICE ignored U.S. citizen and ex-Marine Geoge Ibarra's privacy waiver instructing the government to share information with me about his unlawful detention and deportations, even though ICE spokesperson Vincent Picard assured me that this would be forthcoming. (ICE ignored Mr. Ibarra's probative evidence of U.S. citizenship, i.e., an immigration judge finding he was a U.S. citizen!, and continued to hold him for several months while it filed its appeal, releasing him without explanation only after I wrote about this and major news outlets were arranging interviews with Mr. Ibarra at the Eloy Detention Center.)

This most recent episode of ICE silence on its malfeasance confirms that ICE under the Obama administration is misusing funding Congress appropriated for providing public information and is instead devoting these resources to its propaganda machine and hiding from the American people the practices it is using to unlawfully detain and deport U.S. citizens and other residents.

A research article on this topic, "US Government Unlawfully Detaining and Deporting US Citizens" will be appearing shortly in the University of Virginia Journal of Social Policy and the Law, vol 18 (3).

DHS Releases US Citizen George Ibarra From Eloy Detention Center

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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