June 26, 2025 Expedited Removal Order to Deport California-born U.S. Citizen, Citing Removal Order Immigration Judge ... Terminated in 2004

ICE Really is Out to Get Miguel Silvestre, a U.S. Citizen  

Miguel reached out to me a couple years ago because he couldn't shake the fear that Immigration and Customs Enforcement might try to mess up his life, again.  Miguel was born in Stockton, California and has a contemporaneous birth certficate.   I pursued records requests so he could obtain the bogus records driving his original deportation as well as the records on its termination in 2004, so that having them might give Miguel some documentation, prevent this from happening again, and give him some peace of mind.  (You can read about his ordeal here.)

Beseiged since early 2025 by reporters who wanted to know how a U.S. citizen could be deported, I posted a few months ago a detailed narrative of Miguel's experiences.  Even though they went back to 1999, 2002, and 2004, the screen shots document how immigration agents then and today work with local law enforcement to deport, or in Miguel's case, simply kidnap, a U.S. citizen.

On July 4, 2025 Miguel had a day off work and called me back. I was so relieved to hear from him.  I wasn't able to reach him earlier in the week and worried he was already picked up. Still, I felt awful about the alarming news I had to break to him.  

A Customs and Border Patrol release of his records to me last week, one I thought would include historical materials, revealed ICE had written up a new arrest warrant and on June 26, 2025 issued a fresh expedited removal order, meaning that any encounter with any law enforcement entity could mean Miguel goes straight to Mexico, without an immigration hearing.  

Click to Enlarge

 

 

 

Miguel's been working on a construction site a three hour drive from home, waking up at 3:30 in the morning and returning home at 7:30 p.m.  He's still traumatized from the kidnapping experiences 20 years ago and newly worried about a fender bender he caused from his exhaustion, one that involved the exchange of insurance information but not a police report.  We discussed what he could do to prevent another nightmare.  "I carry that 2004 order in my backpack everywhere I go," he told me.  

How is this even possible?  Miguel should be the last person in this country who should be flagged for immediate removal.  I should be more worried about deportation than Miguel.  That's because only Miguel has an order from an immigration judge terminating his deportation and stating Miguel is a U.S. citizen, based on his mother bringing down to Florence, Arizona, a copy of Miguel's birth certificate. 

 

click to enlarge

Miguel is not the only one who should be alarmed.  The U.S. Supreme Court needs to revisit the precedents derived from vague treatises on national sovereignty, on which the Chinese Exclusion Act precedents overturning the Constitution's due process rights were based. Miguel's plight further highlights the toxicity of the "nation" and its "national security" myths on which these cases relied. It's time to use originalism to overturn vague claims that are not grounded in the text of the Constitution.    

On the occasion of our celebration of independence from England, We the People should be able to celebrate our independence of pernicious myths of the U.S. as a nation.  (A chapter reviewing this jurisprudence will appear in a forthcoming collection of essays edited by Nicholas De Genova and Daniel Morales, Border Abolitionism: Migrant Struggles and the Law, Duke University Press.)

"Everything They Did, They Did At Night": This is How Sheriffs and Federal Agents Deport U.S. Citizens

Past as Prologue - Expect More US Citizens Deported
and more cover-ups

From CBP File on U.S. Citizen Miguel Silvestre, 2004

Superbowl Sunday, January 31, 1999.  Miguel Silvestre, 20, was in the drunk tank at the San Joaquin County Jail.  Three men in green uniforms entered Miguel's cell and asked some questions.  The conversation began in Spanish but quickly turned to English, Miguel's best language.  “I told them, ‘I’m from Stockton, California. I was born at the Dameron Hospital,’” eight miles up the road. The men also asked about his brothers.  Miguel let the guards know that they, too, were born in the United States, in Yuma, Arizona.  

“We’ll come back,” one said. 

A half hour later they returned.  “Grab your property.  You’re coming with us.”  The guards escorted him to a dull green and grey bus. Miguel, on parole, figured he and the four others in the jail were on their way to prison. 

About 20 minutes later Miguel made out that they were entering the Port of Stockton, a gritty 6.5 square mile hub for container ships, rail transport, and long-haul trucks and storage for the goods and fuel in transit.  The group entered a building.  One side had two cells, the other some guys at their desks in civilian cloths. One approached, a White man with grey hair.  “Where’s Miguel?” he asked. 

“I'm right here," Miguel said.    

“Oh, so you’re the troublemaker,” the man said. Miguel figured he'd heard about the fight with another inmate when he was being booked at the jail.  

“Give me your belt,” the man in civilian clothes ordered.  

“I can’t.  My pants will fall down.”  

The official punched Miguel in the stomach. Miguel handed over his belt.

In the holding cell someone tried giving Miguel a Bible.  Miguel asked why.  The Good Samaritan replied, “We’re leaving.  We’re being transferred.  Aren’t you scared?”  Shackled, his stomach aching from the hit and nausea from the hangover, Miguel demurred. No reason to be more scared of “somewhere else,” even prison, than a holding cell in the Port of Stockton with some old guy who punches you. 

Six days after he and his friends watched the Broncos beat the Falcons and his mom called 911 to report her son's alcohol and meth-fueled demands to borrow her car, Miguel, in a tan prison outfit, stripped of his drivers license and social security card, heard guards shouting to his group that had just disembarked a bus, "Keep walking!"  A few minutes later he had reached his final destination: Nogales, Mexico.

Route from Eloy Detention Center, AZ to Nogales, MX

"If you ask questions they ignore you or tell you to shut up," he said, explaining to me his confusion about the odyssey that took him to several jails, a military base with soldiers using gun scopes to scan the sky with red beams, his first plane flight ever, and being chemically sprayed in Eloy, AZ.  "Everything they did, they did at night,” he said.  

After arriving in Nogales it took Miguel a day to figure out he had been deported and two more days before a church worker told him the U.S. government could not do that to a U.S. citizen.  When Miguel tried to return, U.S. border patrol threw him back into Mexico, so he called his dad.  

"Are you lying to me?" his father asked. "They can't do that to a U.S. citizen," he added, underscoring his reluctance to abandon his construction work crew based on nonsense from his addict son.  Finally convinced, his father grabbed Miguel's birth certificate with the imprint from Miguel's newborn feet and drove his red GMC pickup down to Mexico. "He seen me and started crying," Miguel said, describing how his father reacted on encountering his son, 5' tall, filthy and wearing a woman's shirt he'd grabbed from the church donation pile.

***

The account above is from episodic interviews with Miguel over the last three years.  It tracks precisely the paperwork I finally obtained through Freedom of Information Act requests and litigation, though some records remain withheld in a dispute before a federal district court in Northern Illinois. 

The protocols ICE and its predecessor INS followed are identical to those in place today, and resemble dozens of other cases I've reviewed.  The details highlighted here reveal the inner workings of the deportation machine.  Specific records are reviewed so media and policymakers can see how the U.S. government illegally deports U.S. citizens.  Of note is that this is not a "mix-up," but a deliberate effort to deport someone the sheriffs and INS had clear evidence of U.S. citizenship at birth.  Prior personal contact and details in Miguel's criminal records, in addition to Miguel's own statements, left no doubt of his U.S. citizenship.  ICE's mid-February announcement of efforts to coordinate with sheriffs indicates we can expect more unlawful deportations, of U.S. citizens and noncitizens.      

1)  11 a.m., Feb. 1.  An INS officer types up the I-213 that invented Miguel's fake bio.  Miguel is brought from jail to CBP building in Port of Stockton.

From Miguel's I-213, 1999 

Everything on Miguel's supposed origins from Mexico is fiction, as is the claim that Miguel was arrested for a DUI.  (The criminal arrest record INS attached makes no mention of any DUI arrest at any time. Miguel may have been a menace to his family, but he was not driving when the county sheriff took him into custody.)

If anyone were to spend a few minutes looking at this record, the fraudulent paperwork used to kidnap Miguel would be obvious: the biographical information on his recent criminal arrests in May, 1998, November 1998, and January 16, 1999 for possession of drugs and carrying a firearm, made it obvious that Miguel was quite familiar to the local sheriffs, who were knowledgeable of his U.S. citizenship as well, a fact that appears on their prior records on him. 

If Miguel really were from Mexico, then why was he on probation and not deported after his gun and meth possession prison time in 1998?  And why didn't CBP note the records showed he was born and raised in San Joaquin County?

Miguel might have been the world's worst son, but he was quite obviously the Stockton-born-and-bred child of the Modesto-resident mother who had called 911, not some Mexican guy from Guerrero who happened to share his same name, birth date, and parents but had shown up in the United States just two weeks earlier for agricultural work.

2)  4:18 p.m. CBP, Port of Stockton, Arrest Warrant 

 click to enlarge

In the afternoon of February 1, 1999, Port Agent in Charge Dale Johnson had created an arrest record, Exhibit 1 for Miguel's sham administrative hearing inside the Eloy, Arizona detention facility run by the Immigration and Naturalization Service (INS).  Johnson's report stated Miguel had first entered the U.S. two weeks earlier and was agricultural labor.  In the space for "Currently Residing" Johnson wrote, "FAILED TO PROVIDE."  

All of this was Johnson's creative writing about a guy in a nearby holding cell who was entirely clueless as to the fact that INS was effecting Miguel's abduction. 

3)  Feb. 1, 1999, Port of Stockton, Notice to Appear, created by Dale Johnson

 

 Notice to Appear - Has "Ds" in left margin denying he is a national and citizen of Mexico
Created by CBP Officer Dale Johnson, Feb. 1, 1999 (click to enlarge)

4)   DOJ Attorney/"Immigration Judge" Notes Indicate Claim of US Citizenship

Notes of John Zastrow, IJ who deported other US citizens, including Johann Francis

Zastrow memorializes Miguel's claim to U.S. citizenship and then indicates Miguel said he was born in Mexico.  While in some cases, U.S. citizens may have acquired fake birth certificates in Mexico for purposes of attending public schools, this was never the case for Miguel.  Copious documentation proves Miguel was born and raised in California. 

Zastrow provides no explanation as to why Miguel would claim U.S. citizenship and then assert he was born in Mexico. 

The hearing was on the morning of Friday, February 5, 1999, the culmination of several days of confusing travel and attacks by INS agents annoyed by Miguel's yelling at them from his cell in Eloy, AZ.  He demanded to know what was happening, and screamed obscene insults at the guards.  In the wee morning hours guards cajoled him to approach the meal tray slot, then launched a chemical spray in his direction through the opening and charged his cell.  

After roughing him up, guards brought Miguel to the showers, to rinse out the spray from his eyes and elsewhere, the result of which was to saturate his genitals with the chemicals and cause further pain, the treatment for which was shots of tranquilizers, Miguel told me.  

A few hours later Miguel, groggy and disoriented, was dragged out of his cell into an immigration court room inside Eloy, a fact of which he was not aware.  At the time, his best guess as to what was happening was that he was being arraigned for a parole violation.

4)   What about the Mandatory Recordings of Immigration Hearings?

EOIR in 1999 and in 2004 was obligated to record all removal hearings, pursuant to 8 CFR 1240.9. Any discrepancies between Zastrow's claims and Miguel's could be easily resolved if we had these cassettes.  After I filed a lawsuit, EOIR still withheld the audio recordings and other EOIR records responsive to my request.   (I know this because USCIS produced EOIR records that EOIR withheld from me.) 

Executive Office of Immigration:  Oops! No Audio for Either Hearing (click to enlarge)

If records the government is obligated to retain are damaged, the agency is required to submit a report on this to the National Archives and Records Administration.  No such report exists. 

5)  Miguel Files Complaint, July, 1999.   A few months after his February ordeal, Miguel filed a complaint with the DOJ, pursuant to the Federal Torts Claims Act.   

FTCA Complaint

6) INS Doubles Down on Agency Lies and Reliance on Lies

INS Response to Complaint - click to enlarge

The INS analysis relies exclusively on false information in the charging documents.  The author fails to note that Silvestre asserted U.S. citizenship in the hearing before Zastrow, and claims that Miguel's signatures indicating receipt of filings is proof that Miguel himself stated he was a citizen of Mexico who entered the U.S. in January, 1999, as though signing a traffic ticket to indicate receipt were an acknoweldgement of guilt.     

7)  Second Detainer Issued (2002) - Agents Note Miguel's Assertion of US Citizenship

The paperwork indicates a new detainer was created on February 22, 2002 and evaluated while Miguel was in the custody of the Modesto Police, including his assertion of U.S. citizenship.  

I-213, Feb. 22, 2002

8)  INS already knew Miguel was a US citizen, and born in Stockton, California

Database Search 2-21-2002 Shows Miguel born in California, US Citizen

Information on right: "Citizenship United States."

Further, in response to the INS request, Modesto Police confirmed that the fingerprints of the guy they were trying to deport matched the fingerprints and other biographical information for the U.S. citizen Miguel Guzman-Silvestre.  

INS Receives Confirmation Miguel a U.S. Citizen, 2002, click to enlarge

 

9) Second Detainer Dropped (2002) - "Mexican" Citizenship Not Corrected

I-213 "Drop Hold," 3-9-2002

On March 9, 2002, INS dropped the detainer of a guy they knew was born Stockton.  However, no one bothered to correct the INS database to indicate that Miguel was born in the United States, much less open an investigation into the events of 1999 producing the first fraudulent I-213.  It was obvious to anyone reviewing this paperwork that something very bad had happened in 1999, but no one followed up to figure out just what had occurred, much less to correct the error.

 9)  Third Detainer in San Luis, AZ, 2004
In 2004, Miguel was living in Arizona and accompanied a friend to Mexico for the weekend.  

San Luis, POE, photo from Yuma Sun New

When he tried to return, CBP saw the prior deportation and arrested him, disregarding the findings from 2002 to drop the detainer hold.  

CBP notes Miguel's Birth Certificate and Calif. DL, Proof that BC is Miguel's,
Makes Error on Date of Entry, click to enlarge

Here's how Miguel describes what happened:

The guard said, "I can't let you go into US. You've got to go back into Mexico.  You need someone to send documentation.  I need a birth certificate."  I called my mother.  She decided to come down to Arizona, to San Luis.  Me, her, and my friend's mom wanted to take me somewhere to apply for a passport.  But I was feeling sick.  They left and I stayed in San Luis, Mexico.  "When you feel better, you go back into Yuma and fix things there," they told me.  

A day or two I felt better.   Mom called me.  "You're going to walk through there.  Your uncle will be right behind you." I went through.  I started walking. As I came, they asked me a question.  "Where were you born?" 

"Stockton, California."  I gave him that right away.   He arrested me.  I'm looking at my uncle.  "Aren't you going to do something?" 

He took me into the holding cell.  They took all my information.  I gave them all my documents. "You're committing fraud," they said, "You're trying to represent somebody that aint you."  They held me  6-8 hours.  

CBP has an interview template.  

Q.  Why did you leave your homeland or country of residence?"  A. "Because they said I had to fix my deportation in Arizona." 

Q.  Do you have any fear or concern about being returned to your home country or being removed from the United States?  A.  I would just be pissed off being returned to a country where I wasn't born.  

Q.  Would you be harmed if you returned to your home country or country of last residence. A. No, but I have no reason [sic] over there.   

Q.  Do you have any question or is there anything else you would like to add?  A.  Why does the paper work I see around me say I am a Mexican citizen? 

Interview in Bizarroland, March 8, 2004, click to enlarge

The Alien Who is a Citizen
Miguel's records are of a piece with a pattern: a deported U.S. citizen who produces records documenting U.S. citizenship elicits accusations of false personation of a U.S. citizen, as the San Luis, AZ charged Miguel in March, 2004.  

I-213, 2004

I-860 Form, 2004

I-860 Form 

Miguel couldn't win.  If he didn't present documents he would not be allowed to return to his home.  But when he did, CBP wrote:

You are ineligible for admission to the United States ... You are an alien who, at the time of your application for admission at the San Luis, Arizona Port of Entry on March 7, 2004, ... falsely represented yourself to be a United States citizen ... [But] you are an alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or sought to procure of has procured) a visa, other documentation, or admission into the United States or other benefit provided under the Act, to wit: You presented a California birth certificate in the name of Miguel Silvestre, born in Stockton, California on [PII] 1978 and attempted to assume that person's identity in order to be admitted to the United States.

The disposition on the report on March 8, said "expedited removal."  Typically that means immediate deportation, perhaps directly or perhaps through the detained immigration court docket.  Instead, CBP sent Miguel to the Yuma County Jail, to face criminal charges 

10)  Yuma, AZ Federal Court

Of his 2004 arrest, Miguel said,

Then they sent me to Yuma, Arizona, to the county jail.  I was there a day or two. Then they took me to the immigration court. They  took me there with my mother.  The judge said, "What's your name?" Then it was over.  "That's it?"

March 9, 2004 Indictment, 8 USC 1326, 8 USC 1325, click to enlarge

 

I said, "What's going on?" No one said anything. They took me out and sent me back to the county jail.  "What just happened?" I asked.  The guards said, "You've been to Tijuana lately."  I told them, "I've never stepped foot in Tijuana." 

They kept me there three days.  Then they picked me up again and took me to Florence [Arizona].  

 

I  pointed out that the paperwork in Yuma was actually for federal court, that he was being charged with a felony of Illegal Reentry and the misdemeanor of Illegal Entry.  If he had been convicted, the judge would have sentenced him to several years in prison, and THEN he would be put into removal proceedings.  I asked Miguel if he showed anyone evidence of his U.S. citizenship at that the hearing.  Miguel's aunt recalls there were a few other inmates and their families in the court room.  Miguel's mother showed the bailiff and then the judge all the paperwork documenting Miguel's U.S. citizenship.  Miguel does not recall any formal statement from the judge, just being taken back to then being sent to Florence. 

Without notice to Miguel, the next day the federal court dismissed the charges. 

March 10, 2004, Charges Dismissed, click to enlarge

The charges were dismissed, presumably based on the evidence of Miguel's U.S. citizenship, and yet Miguel remained in custody in Yuma until he was transferred a few days later to an ICE facility in Florence, Arizona. 

  

11)  Florence, Arizona, Florence Immigrant and Refugee Rights Project files appearance

Miguel and his mom go to Florence.  Miguel is still in custody.  His mother needs to drive from where she was staying with relatives.  

On March 16, 2004, Miguel's mother files an affidavit and the rest of Miguel's records documenting his birth and school attendance in California with the immigration court.

Mom Swears Miguel Born in the Stockton, California, click to enlarge

On March 23, 2004, the immigration court at the Florence Detention Center affirmed Miguel's claim to U.S. citizenship.

2004 Order Finding Miguel a US Citizen,
Terminating Removal Proceedings in Florence, AZ

The next day, ICE filed a motion indicating that the NTA of February 25, 2004 was "improvidently issued" and moved to terminate.  

ICE Moves to Terminate Without Prejudice

However, ICE cannot retract inaccurate allegations without creating new errors. First, ICE's Notice to Appear was created on March 18, 2004, two days after his mother submitted the paperwork documenting his U.S. citizenship, not February 25, a date before Miguel was apprehended.  Further, Miguel is never not going to be a U.S. citizen.  Why is ICE moving to dismiss without prejudice?  Shouldn't the government recognize a massive prejudice against the possibility of ever again charging Miguel with being a noncitizen? 

Interview with CBP official Dale Johnson

On February 1, 1999, CBP Officer Johnson created a false report filed with the immigration court a few days later in Florence, Arizona.  A few days ago I spoke with him by phone.  I asked him how it was possible for him to write this false narrative leading to the deportation of a U.S. citizen. "It wouldn’t have happened," he replied.

I told him I had the paperwork right in front of me, including his name and signature on a document that demonstrably false information. Next was the CYA.  "It wasn't me. He would have gone to a deportation office. They would have brought him to El Centro," suggesting that most of the individuals who ran through his office were bussed to Southern California, not Arizona.  

I pointed out that no one could be sent anywhere in INS custody without someone in Stockton first completing the paperwork, and that it turned out he was the person who did this, in response to the I-213 created a few hours earlier.  (The names on that are redacted.)  

"Sometimes they would claim US citizenship so they could go back to Mexico," he said, trying to account for why he would have received an I-213 with inaccurate statements. 

I told him this made no sense.  "You sound like you are someone who hates ICE," he replied, adding that he did not want to continue the conversation.  I offered to send him the records in case he wanted to review them.  He declined and said he no longer wished to speak with me.

Conclusions

1)  Nothing in the protocols relied on by any of these agencies has changed since 2004. 

2)  Many of the people who deported Miguel on numerous occasions knew he was a U.S. citizen.

3)  Many of the government officials who created or reviewed these records must have known that the original 1999 I-213 arrest sheet was inaccurate and likely fraudulent. In 2002 this impeded a new I-213, but the 2004 CBP and ICE officials disregarded this.

4)  No one has done anything to protect Miguel from enduring similar treatment at a later date. 

Miguel is no choir boy.  But he has never kidnapped anyone.  He has never falsely imprisoned anyone.  And he has never assaulted anyone with a chemical spray.   I have numerous other accounts of U.S. citizens detained and deported, accounts that ICE is doing its utmost to delay or refuse to produce.  They know that if these facts go before our courts, the plenary power afforded Congress and law enforcement when it comes to deportation policy will be rescinded.  The plenary power to disregard the Constitutional rights of noncitizens is wrong on its merits, but it extends only to noncitizens.  Over a century of evidence that the removal of due process protections for noncitizens entails the kidnapping and false imprisonment of U.S. citizens removes these prerogatives.  (Working on the law review article, but in light of interest by various parties, I wanted to share these details in the meantime.) 

Many thanks to FOIA attorney Nicolette Glazer and Deportation Research Clinic research assistants who have pitched in on requests and litigation analyses: Addie Fleming, Caitlin Jimmar, Gabriel Sanchez, and Juliana Zitron.  Thanks also for support from the the Buffett Institute for Global Affairs and the Political Science Department at Northwestern University. A special thanks to Miguel, for his patience, persistence, and his honesty. If you are a lawyer (or a California state prosecutor) and want to speak further with Miguel, please let me know. jacqueline-stevens AT northwestern. edu 

Please consider donating to support our work. 

Federal District Court Judge Matthew Kennelly to ICE: No More Bites at the Apple

 

 

 

                                                                 source: Tasting Table

 

Federal Court Orders ICE Release 13,000 Pages: ICE "Plain Wrong," Redactions "Egregious" 

 

 

 

 

 

In retaliation for revealing misconduct by Immigration and Customs Enforcement (ICE) and the private prison industry, ICE in recent years often disregards my requests under the Freedom of Information Act (FOIA) and forces me to go to court to obtain any responsive records.  

In the past, a request for a U.S. citizen's "A"-file ("A" for Alien) would yield several hundred pages and any litigation would be over redactions or pages that were withheld.  Now, even AFTER I go to court, ICE will take months or years before releasing just one to four pages from a computer print-out, thus forcing me to respond to round after round of their motions for summary judgment.

The result is stale information, and a diversion of my time away from writing and research and into tracking and drafting declarations revealing ICE's idiocies.  

A recent order revealed I was not the only one frustrated by ICE's Prozess -- the word from which Kafka's "The Trial" is translated.  

Northern Illinois District Court Judge Matthew Kennelly also has had enough. Here are some excerpts from his order, castigating ICE's declarant Fernando Pineiro for his vague and inaccurate statements:  

It is apparent from the way Pineiro worded this that his declaration does not contain a full list of program offices where ICE maintains its records, nor does it explain why he listed only four program offices as potential locations where responsive records may be found. Stevens v. Health and Human Services, et al., 1:22-cv-05072, ECF 121 at 11. 

Judge Kennelly faults Pineiro for his lack of explanation as to the locations searched, ICE redactions of information from publicly available federal court cases, as well as errors, including misstating the number of columns in his own Vaughn Index:

[T]he information he references as forthcoming ("described below") is nowhere to be found. Pineiro does describe the specific search terms used and databases searched, but he does not provide an explanation regarding why "no other record system was likely to produce responsive documents" related to prison grievances, commissary account data, and work program participation.  [Webster's Dictionary] defin[es] "explain" as "to make known; to make plain or understanding; to give the reason for or cause of; or to show the logical development or relationship of"). In essence, ICE is asking the Court to take Pineiro's bottom-line word for it without the benefit of any reasoning or justification. Ibid at 15, emphasis in original.

Judge Kennelly finds, 

T]hough ICE is afforded the presumption of good faith, Stevens has supplied the requisite evidence to 'raise substantial doubt [about the adequacy of the search]' byproviding her "well defined requests" and pointing to "positive indications of overlooked materials." See Rubman, 800 F.3d at 387. In particular, Stevens contends that there are over 10,000 pages of documents that ICE identified as potentially responsive but that were withheld without a sufficient explanation or description of which program office they came from, or even to which request they relate. Based on the record, no reasonable factfinder could find that ICE performed its search reasonably and in good faith. This is not a question of whether ICE "might have additional, unidentified responsive documents in its possession." Id. Rather, ICE has affirmed that there are over 10,000 pages of potentially responsive documents found by the various program offices, yet it has not sufficiently explained how it determined which of these pages to produce "to allow the . . . court to determine if the search was adequate." Oglesby, 920 F.2d at 68.  Ibid at 16. 

ICE filed a motion for stay.  Today Judge Kennelly denied the motion without prejudice.  ICE likely will file a new motion to preserve the right to file an appeal.  At that point, ICE also will file a new motion for stay.  Meanwhile, other records need to be released before January 30, 2025. 

U.S. Citizen Kidnapped and Deported
The records I requested include those of U.S. citizens ICE detained or deported, including a Stockton-born U.S. citizen then-INS basically kidnapped.  The information from Miguel's narrative and records I obtained through this litigation reveal the San Joaquin County jail turned Miguel over to INS agents, who brought him to a mobile CBP office in the Port of Stockton commercial rail yard. An agent there filled out a bogus arrest report asserting Miguel first entered two weeks earlier.  The then 19 year-old had no idea where he was being taken.  "Everything they did, they did at night," Miguel told me, including the chemical spray and shots of tranquilizers in an Arizona INS facility.  Six days after being kidnapped he was walking over a bridge into Mexico.  This was in 1999.  He "snuck" back in and was put into deportation proceedings again in 2004. 

Miguel reached out to me because he is terrified of this happening again.  Alas, his worries are not groundless.  ICE knows that the entire deportation machine will fall apart if the evidence of its wrongful deportation of U.S. citizens is judicially recognized.  To delay the inevitable, ICE now regularly challenges findings by immigration judges terminating deportations based on evidence of U.S. citizenship.  If Miguel is encountered by law enforcement and they see he was deported, they might well re-arrest him and try again, despite his contemporaneous birth certificate from Stockton, CA. 

With deportation protocols, past is prologue.  

As political scientist Raul Hilberg explained about the Nazis, the stereotype of the Einsatzgruppen following legal orders is a canard.   The deportation regiments were  systematic only in their protocols, while their interpretations of statutes were improvisational.* 

*I am referencing in particular the period of 1933 to 1940, before the mass killings in Poland and Latvia; I do not believe anything like death camps or mass shootings in remote forests is possible in the United States.  I do believe the nativism and national security rhetoric to which the Supreme Court regularly defers entails abandoning the rule of law, and is unconstitutional as well as harmful to most Americans. 

The records I have been obtaining for 15 years and am seeking now indicate that the U.S. government cannot abandon due process for deportations and avoid deporting U.S. citizens.   No wonder ICE refuses to follow the FOIA. 

Thanks as ever to attorney Nicolette Glazer and to Northwestern University Buffett Institute Deportation Research Clinic research assistants Addie Fleming, Caitlin Jimmar, Kendall McKay, Gabriel Sanchez, and Julianna Zitron for carefully combing through ICE's productions and flagging missing information crucial to this litigation. 

Schroedinger's Citizen

"For the foregoing reasons, the Department is prepared to conclude Juan acquired U.S. citizenship automatically under INA Section 321, 8 USC §1432 on April 26, 1988." -- Memo of July 8, 2019

links to Juan's memo and previously unreleased State Department Memorandums interpreting 8 U.S.C. 1432 below

courtesy of Wikipedia

On July 8, 2019, the State Department announced that a deported alien was a U.S. citizen and would be issued a U.S. passport.  Juan had been waiting for this news for thirty years, over a decade of them in exile from his home and family.

Juan was born in Colombia.  When he was two years old he moved with his parents to Miami as a legal resident.  In 1987, when he was 11, Juan's mother naturalized.  Shortly thereafter his parents divorced. Juan received a notice from US Citizenship and Immigration Services giving him an appointment slot for receiving his Certificate of Citizenship.

Juan figured the government set up the appointment for his Certificate because the official who organized his mother's naturalization knew she had a son and the son was a legal resident and had derived U.S. citizenship via his mother's naturalization.  (Juan's brother was born in the United States and his father was a legal resident who did not naturalize.)

Juan showed up at the federal building in Miami with a relative, but his name was not on the list.  He showed his appointment card to an official.  She asked to see his mother, who was not with him. He went home and figured they'd sort it all out later. 

After Juan turned 18 he submitted an N-400.  And then another, and another, and another. He told me, "Apparently for some odd reason my A-file never left its repository.  The INS officials could never give me a clear explanation of what went wrong."  (An N-400 is the form for legal residents who want to become naturalized U.S. citizens.  You have to take a civics test most people born here would flunk and go through a criminal background check.  If you are already a U.S. citizen, as the State Department now recognizes was the case for Juan, it's like completing all the coursework through the twelfth grade with passing grades and then signing up for the G.E.D. instead of just filling out the paperwork for your diploma, the equivalent of which for a Certificate of Citizenship is the N-600.)

In 1996, when Juan was 21, Drug Enforcement Agents nabbed him for transporting $275,000.  They released him after the confiscation of the currency.  

Juan obtained a degree in Electronics and Engineering Technology in 2002 and worked in that industry until 2006, when he once again attempted to procure his Certificate of Citizenship through an N-400.  The examiner explained that he also was eligible for "derivative citizenship."  Juan says:

 I had no idea what she meant by the terms 'derivative citizenship,' so I just told her to proceed with the N-400.  Out of all the mistakes that the government has made, this seems to me by far the most crucial and devastating.   The examiner should have went through the path of derivative citizenship and not offer me another option.

The 2006 visit to the federal building entailed fingerprinting.  This alerted the feds to Juan's prior arrest and upon leaving the examiner's office he was charged with money laundering and taken into custody.

Juan served his sentence of one year and one day, reduced by the judge from the plea deal he had accepted for four years.   

In December, 2006, Juan was driven five hours from an ICE facility in New Mexico to the El Paso Processing Center.  He told me that in the courtroom, before the hearing officer arrived, the ICE attorney "approached us and said 'Hey, Juan, I know you're a U.S. citizen.   I have all the evidence and you satisfy the conditions. I'm not going to object to the evidence you provided.   The last thing I need is a civil suit for deporting an American citizen.'"  

But a few minutes later, the hearing officer, Thomas Roepke, ordered Juan deported.  "The IJ claimed that I was removable due to the fact that my mother did not have sole legal custody.  My lawyer, the DA [ICE trial attorney], and myself were shocked to hear the outcome."

Juan remained only a month in Colombia.  "I feared for my life.  My mother was kidnapped in Buga, 1997."  Juan still does not know what became of her.  "Her husband was found dead about two weeks later."  Juan moved to Germany with his brother, who was in the U.S. Army.

A few weeks ago Juan received a phone call from the U.S. Embassy in Madrid.  A consular official told him, "Things have changed, Juan, for the better."  Soon after, Juan obtained his U.S. passport. 

The State Department's analysis lays out how this happened.  It is a model of legal clarity.  The official quotes from the relevant case law, administrative decisions, and memorandums on derivative U.S. citizenship.  Juan wanted me to post the letter in its entirety because he knows it will help many others who find themselves in this situation.  (It will be especially helpful to folks in the Eleventh Circuit who were under 18 when just one parent naturalized and their parents divorced and had joint custody.)

Ambiguous Categorical Representations

"Schroedinger's Cat" is a thought experiment created in 1935 by physicist Erwin Schroedinger to illustrate what he claimed was the paradoxical absurdity of a potential condition that simultaneously has two mutually exclusive attributes, e.g., a cat being alive and dead. Citizenship law reflects this. At any given point one either is or is not a U.S. citizen. And yet, consider the following regulation:

 An alien whose claim to lawful permanent resident, refugee, asylee status, or U.S. citizen status cannot be verified will be advised of the penalties for perjury, and will be placed under oath or allowed to make a declaration as permitted under 28 U.S.C. 1746, concerning his or her lawful admission for permanent residence, admission as a refugee under section 207 of the Act, grant of asylum status under section 208 of the Act, or claim to U.S. citizenship.  A written statement shall be taken from the alien in the alien's own language and handwriting, stating that he or she declares, certifies, verifies, or states that the claim is true and correct. From 8 CFR § 235.3 - Inadmissible aliens and expedited removal.

Of course if "the alien"  is a U.S. citizen, then a U.S. citizen is verifying her U.S. citizenship.  Like Schroedinger's cat, the alien of the regulation may be a citizen, and not even a dual citizen, in the case of those who are born in the United States and have been deported, such as Pedro Guzman, Mark Lyttle, and Roberto Dominguez.

Subsequently, philosophers argued such a scenario was not at all absurd.

Paradoxes about knowledge are abstract.  The legal analysis of the meticulously documented 13-page single-spaced memorandum is concrete:

Although the Property Settlement Agreement attached to the final Order of Dissolution provides for 'shared parental responsibility' for the children (Juan and his sibling), which falls afoul of the sole legal custody requirement announced in Bustamante-Barrera, 1) the Department maintains that the legal custody requirement of former INA 321(a)(3) is satisfied even if the parents are awarded joint custody (See TABS 11 and 16); and 2) two DHS/USCIS Administrative Appeals Office (AAO) opinions (albeit one non-precedential) have since concluded that Bustamante-Barrera does not apply in the 11th Circuit which is where the events giving rise to Juan's citizenship claim under INA 321 took place (specifically, Juan's mother's naturalization, the dissolution of the marriage of Juan's parents and Juan thereafter residing as a legal permanent resident with his mother in Florida after the dissolution of his parents' marriage on April 26, 1988 when he was 12 years old.

TAB 11 refers to a 1996 State Department Passport Memorandum 96-18.   The Memorandum suggests that the interpretation of custody by the Department of State goes back to the previous version in 1993.

Legal Custody
The  Department  has  not  changed  its  interpretation  of  what  constitutes  'legal  custody[.]'  As  stated  in  the  referenced  Bulletin,  in  cases  where  the  divorce  or  separation  decree  does  not  specify  who  has  custody  and  the  naturalized  parent  has  physical  custody,  the  child  can  be  documented  as  a  citizen  under  Section  321(a)(3)  provided  that  all  other  conditions  of  the  law  are  met.  Section  321  does  not  require  sole or exclusive legal custody. If the parents have a joint custody  decree,  then  both  parents  have  legal  custody.  Thus,  the  naturalization  of  either  parent  would  be  sufficient  to  satisfy  the  Section  321(a)(3).  If  there  is  a  specific  question  about  the  sufficiency  of  legal  custody  evidence,  OCS, PPT and INS agree that we should review the matter on a case by case basis. (Emphasis added.)

As State notes in its recent memorandum, this interpretation since 1993 conflicts with the decision in Bustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006).

One thought would be that the statutory interpretation of the Fifth Circuit supersedes an agency.  The agency seems to concede this is the case for the Fifth Circuit and the Ninth Circuit, which cited Bustamante-Barrera and decided similarly in U.S. v. Suchite-Casola 670 F. 3d 1023 (9th Cir. 2012).  Memo pp. 5 - 7.

Bustamente-Barrera did not consider the State Department Passport Memorandum.  Suchite-Casola did:

We must conclude that the non-precedential, BIA statutory interpretations are not worthy of any deference, because they conflict with the words and obvious meaning of the statute. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004) (refusing to grant any deference when the agency decision was "contrary to the plain and sensible meaning of the statute" and would lead to an irrational result). Indeed, the only authority cited by the BIA from the time § 1432(a) was in effect is an unpublished 1996 Passport Bulletin issued by the State Department, an agency that does not enforce these immigration laws. The BIA's additional reliance on regulations later adopted by the Department of Homeland Security to implement the CCA is unpersuasive, because the CCA superseded the controlling statute in this case. Rather than follow unpublished, BIA decisions unworthy of deference, we instead give the statute a sensible interpretation and thereby agree with the only circuit decision that has addressed this issue, the Fifth Circuit's decision in Bustamante-Barrera, 447 F.3d at 395-96.

A couple thoughts.  First, the authority for this interpretation is not solely the 1996 Passport Bulletin.  As quoted above, the 1996 Bulletin actually references back to an earlier version of the Bulletin, from 1993.  The State Department also reiterated this policy in 2013.   In other words, on at least three separate occasions State Department staff have interpreted the statute consistent with the plain text and to align with the needs of U.S. citizens.  This is the agency that is doing the hands-on work of implementing the law.   Typically judges defer to such practices unless they are clearly at odds with the text or absurd.  The State Department interpretation is neither. 

Here is the text in dispute.  It indicates that if the following criterion is met, a child under 18 who entered as a legal resident automatically derives U.S. citizenship by operation of law.

(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents...

Juan's mother naturalized.  Shortly thereafter his parents legally separated.  His mother had physical and legal custody of him, though it was joint legal custody.   The judges claim that State Department interpretation "conflict[s] with the words..." but the plain text does not support this claim.
 
Second, which interpretation is irrational?  One that separates U.S. citizen parents from their children, and siblings from each other, or one that keeps them together?  The judges in Buastamante-Barrera  and  Suchite-Casolaare are considering Schroedinger's citizens, i.e., the uncertainty and ambiguity of citizenship status, to be the "irrational result." The State Department officials are saying that what's really irrational is creating certainty by killing the cat.  To avoid this, the State Department is interpreting the law such that people who could be U.S. citizens - the law's plain text does not require sole custody of the naturalizing parent - are U.S. citizens. 

Third, as a matter of law,  Suchite-Casola seems to misstate the division of labor between the State Department and Homeland Security.  To the extent that Homeland Security enforces immigration law, as the Ninth Circuit opinion notes, it does so based on a prior finding of who exactly is a U.S. citizen. If the State Department and U.S. Citizenship and Immigration Services use criteria to define a U.S. citizen, then to enforce the law means not deporting U.S. citizens, and does not empower the agency to invent its own criteria.  If the courts are going to defer to any agency's interpretation of U.S. citizenship for those who are foreign-born, then it should be first to the State Department and then U.S Citizenship and Immigration Services.

Now that the cat is out of the bag, what happens next?  One thought is that many other wrongfully deported U.S. citizens will be able to make use of the State Department analysis here.  Another is that Trump apparatchik Mike Pompeo will want to deprive as many people as possible their U.S. citizenship and change the directive, even if it means a soldier in the U.S. army cannot live near his older brother, and the reversal would be at odds with over 25 years of policy, and prompt court challenges on several grounds, including for violating the Administrative Procedure Act.

Is the irrationality in U.S citizenship statutes their ambiguity, or that racist governments weaponize our complex biographies for scurrilous political agendas?  It is easy to be distracted by the confusion of birthright citizenship laws and their shifting standards of evidence.  Juan's ordeal persisted under the presidencies of Ronald Reagan, Bill Clinton, George Bush, Barack Obama, and Donald Trump, under whose leadership Juan finally was declared a U.S. citizen.

The real problem is birthright citizenship itself, jus sanguinis and jus soli, that is, the discrepancy between a citizenry produced capriciously through narratives of family history, birth, and lines in the sand irrelevant to good governance and a citizenry of those who distinguish themselves by vows to uphold the rule of law. 

ICE Tricks Sheriffs into Kidnapping U.S. Citizens, Bogus Immunity Claims

Source of image 

Last week a U.S. citizen born in Philadelphia filed a lawsuit after a Florida sheriff took him into custody under immigration laws.  (No law enforcement entity in the country has jurisdication over U.S. citizens under immigration laws, a point that ICE itself has repeatedly avowed.)

The sheriff is claiming that the agreement he has with Immigration and Customs Enforcement -- to earn a $50 bounty for each person turned over to ICE -- immunizes him from any litigation.  Instead, though, the payments might be grounds for charging the sheriff with criminal kidnapping.

The ICE announcement of the new partnerships acknowledges past litigation had made counties reluctant to hold people on immigration detainers, insofar as courts have found that these do not alone provide "probable cause" for an arrest.

ICE explains that the new agreement should assuage county concerns on this score:

Recognizing these challenges, the National Sheriffs’ Association (NSA) and the Major County Sheriffs of America (MCSA) worked with ICE to develop a new process to clarify that aliens held by these jurisdictions are held under the color of federal authority, thereby affording local law enforcement liability protection from potential litigation as a result of faithfully executing their public safety duties.

 The ACLU and other civil rights organizations vigorously dispute this. 

Journalists covering this are understandably confused.  

Here's the quick version of the big picture:

1)  Congress in 1996 voted to amend the law controlling immigration detainers.  The amendment was Sec. 133 in the 1996 bill, and it was to section 237 in the previous bill, and so called 237 (g).

The text of the 1996 bill is now in the U.S. Code as 8 U.S.C. 1357.    

2)   The dispute is about this language (from the 1996 bill) and promises based on it:  

(8) An officer or employee of a State or political subdivision of a State acting under color of authority under this subsection, or any agreement entered into under this subsection, shall be considered to be acting under color of Federal authority for purposes of determining the liability, and immunity from suit, of the officer or employee in a civil action brought under Federal or State law.

3)  The problem for Monroe County and others operating under these agreements are two-fold:

    a)  Nothing in this language exempts anyone in law enforcement from the "probable cause" threshold for taking someone into physical custody.  If the government lacks probable cause, especially if the person is a U.S. citizen, then holding the person in custody is false imprisonment or even kidnapping.  There is no Federal authority for doing this, and thus there is no basis on which a local sheriff would be able to prevail in asserting they were acting on behalf of ICE.  

For the most part, litigation has been civil, though under Obama, the DOJ did successfully criminally prosecute two East Haven police officers.  At some point a prosecutor who believes in the rule of law will prosecute for this, as did prosecutors in the 1850s when they brought charges against U.S. marshals or slave agents who kidnapped people accused of being escaped slaves.

Under Florida law: (1)(a)The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:

1. Hold for ransom or reward or as a shield or hostage...

ICE is giving the county sheriffs a reward of $50 for holding Mr. Brown after his April 26, 2018 court hearing against his will and without lawful authority.  Discovery presumably would prove that the cash incentives were implemented because ICE otherwise was having a problem with enlisting the cooperation of the sheriffs.

  b)  The claims of ICE officials asserting the agreements indemnify the sheriffs are not legally enforceable.  Just because someone with a government title, say, "President of the United States," puts something on a web site, or in an agreement with a local county, that does not make that agreement binding on the federal government. No one in the government can supersede the Fourth Amendment, period.    

4)  The National Sheriff Association and the sheriffs in Florida seem to have indulged in some magical thinking to the contrary.

5)  The reason that ICE is doing this is that it continues to have problems with buy-in to the original 287 (g) program.  A 2018 budget request indicated only 31 counties were participating.  The 2019 budget request says the number has gone up to 60 and that ICE anticipates an additional 23 MOAs, but that's still a miniscule fraction of the 3100 counties nation-wide.  The new BOAs are supposed to change this.

At present ICE lists 78 counties as having signed the MOAs, about 2.5% of all eligible counties, and in areas that represent an even smaller jurisdiction over the U.S. population, because they are largely in areas sparsely populated.  97.5% of U.S. counties are not participating because of a mix of anti-deportation sentiment and litigation risk aversion.  

  

The American Civil Liberties Union has a terrific FAQ about the "Basic Ordering Agreements" ICE rolled out earlier this year in Florida.  And here's the complaint against Monroe County filed on behalf of Peter Sean Brown, and the story behind it.

The National Immigrant Justice Center, Southern Poverty Law Center, American Immigration Council, the American Immigration Lawyer Association, and the National Immigration Law Center also partnered on a March, 2018 report detailing the case law at odds with ICE's claims that its local partnerships indemnify the counties. 

ICE acknowledges rogue operations in which agents go undercover to trick immigrants into providing location information to assist with the arrests of family members or co-workers.  Here it seems the rogue operation is to trick sheriffs into believing false imprisonment possible without consequences.  

How Many Errors are in this Graphic on U.S. Citizens in ICE Custody Published in the Los Angeles Times?

A few days ago a reporter from the Los Angeles Times reminded me of what journalism looks like when it works.  And that reminded me of what it looks like when undertaken by his colleagues Paige St. John and Joel Rubin.  Their article makes bogus claims about ICE reviews of claims of U.S. citizenship and announces breaking news on immigration court adjournments of cases of U.S. citizens that another reporter broke eight months earlier.

My analysis of their article and some new information from ICE attorneys reviewing claims of U.S. citizenship is here.

The primary audiences for this are the Los Angeles Times editor, journalists covering deportation, and folks interested in operational information on how ICE reviews claims of U.S. citizenship.