ICE Puts Son of U.S. Navy Officer Incommunicado from Press, Attorney Outraged

This is where the Pinal County Jail officers informed me yesterday that ICE was violating the First Amendment (Florence, Arizona)

ICE Illegally Prohibiting Nation Reporter and Scholar's Access to Joseph Anderson, Detention Centers, Immigration Courts.

Joseph Anderson has provided copious evidence that he's a U.S. citizen, but ICE is ignoring his evidence and holding him in the Pinal County Jail. (You can read about his case here.)

Not only is ICE is holding Mr. Anderson illegally, it is now prohibiting Mr. Anderson from meeting with the press, further violating ICE rules as well as Mr. Anderson's and the U.S. public's First Amendment rights to freedom of association and freedom of the press.

Kari Hong, Mr. Anderson's attorney, is upset:

I am not aware of any policy or law that authorizes ICE to limit or deny Joseph's access to the media. This disregard for legal authority is even more troubling given that our legal argument to the federal courts is that Joseph is a U.S. citizen. The mere detention of him, in our view, is unauthorized. I understand that ICE disagrees with our position, but as the Ninth Circuit is resolving this legal question, under their own policy, ICE is supposed to be giving Joseph the benefit of the doubt and releasing him rather than taking away rights and privileges detained non-citizens enjoy.

The Details
On the afternoon of Friday, March 5, Officer Charlson of the Florence Service Processing Center (SPC) informed me while we were in the detention center that he would make sure to have Mr. Anderson brought to the Florence SPC for its normal visiting hours on Saturday at 8:30 a.m. This commitment was required by ICE detention standards, which allow detainees to meet anyone during visiting hours subject to both parties' mutual agreement. (The televideo system at the jail had been inoperative since February 26, and ICE was bringing people from the jail down the road to the ICE facility for weekend visits.)

Shortly after that arrangement was made, I received a cryptic email message from the Chief of ICE's Ministry of Propaganda, Brian Hale. I had not been in touch with Mr. Hale about the Saturday visit. He informed me that Mr. Anderson would not be allowed to meet with me over the weekend. No reason was provided for this illegal intervention. (Officer Charlson was aware that I was waiting for a long overdue response to a request to videotape an interview with Mr. Anderson; in the meantime Officer Charlson, following ICE rules, was trying to allow Mr. Anderson the ability to meet with me as a regular visitor.)

I replied to Mr. Hale by stating that his intervention was illegal and I intended to meet Mr. Anderson on Saturday. I am calling him a Minister of Propaganda and not using his official title of "Director of the Office of Public Affairs" because Mr. Hale is curtailing the public's access to information, using Soviet-era methods of obstructions, distortions, and outright lies to keep ICE's affairs secret.

On Saturday at 8 a.m. Officer Charlson met me at the gate of the Florence SPC and informed me that he had "made a mistake" and that Mr. Anderson would not be brought down to meet with me. I asked him for a legal reason for this. He did not provide one, although he did assure me that the televideo system would be working on Monday and Mr. Anderson could meet with me then.

Yesterday I showed up during the visiting hours of the Pinal County Jail and the desk officer told me that televideo system was still not working; the part was being held up by Customs at the Canadian border. Mr. Anderson would not be able to talk to me.

I drove back to Florence SPC and told Officer Charlson that it seemed he had made another mistake. However, Officer Charlson had a nice surprise: he had followed up on his commitment and arranged with Commander Johnston at the jail for me to have a face-to-face meeting with Mr. Anderson that afternoon. I returned to the jail and informed the desk officer of this. She spoke with Commander Johnston and informed me that I would be escorted to meet Mr. Anderson. However, there had been a fight in the women's wing and I would have to wait a few minutes for an escort.

While I was waiting, the ICE Ministry of Propaganda unlawfully interceded yet again. Commander Johnston came out to inform me that he had just been called by Officer Charlson and told that Mr. Anderson once again would have his right to meet with me obstructed. Cmdr. Johnston said his facility was under contract to ICE and although he had been trying to accommodate a meeting, he "was helpless" in the face of an illegal order from ICE.

About 30 minutes later, Officer Charlson informed me that he had made another "mistake."

More Lies and Secrets at the ICE Ministry of Propaganda
In addition to illegally interfering with Mr. Anderson's rights, ICE has been obstructing my own investigation of its facilities at Eloy and Florence, including this morning, when I was illegally turned away from the immigration courts at Eloy. (See below.)

This continues longstanding attempts by ICE to improve its image by deception and impeding access, rather than by following the law. Before turning to my recent experiences, consider the following:

#In 2009, ICE propagandist Richard Rocha told reporters from the Los Angeles Times, "ICE does not detain U.S. citizens." But of course, as reporters across the country have been documenting, including Andrew Becker and Patrick McDonnell of the LA Times, ICE has been detaining thousands of U.S. citizens. (Recently, in circumstances very similar to those in Mr. Anderson's case, a judge ordered the release of a U.S. citizen from ICE custody in Minnesota: you can listen to coverage of that here. (I personally documented 82 U.S. citizens who had been held in ICE custody in the Florence and Eloy area and then ordered released by immigration judges.) You can read about that and find links to earlier articles here.

#In her article, "Officials Hid Truth of Immigrant Deaths in Jail," New York Times reporter Nina Bernstein describes how Mr. Hale's underling Michael Gilhooley lied to Ms. Bernstein. Mr. Gilhooley, the same person who had denied, without any reason, my request for a tour of the Varick Detention Center, told Ms. Bernstein that he was unable to find out the condition of a dying man. Instead of communicating the truth to a reporter, Mr. Gilhooley used Ms. Bernstein's inquiry to initiate a cover-up of Boubacar Bah's illness and eventual death.

#In response to my article in The Nation magazine documenting ICE agents unconstitutionally impersonating Mormons and attorneys, ICE issued talking points to its staff that covered-up ICE's previous statements to me.

Local reporters did some great work following up on the the secret subfield offices in their vicinities. As a result I was contacted by Utah Tribune reporter Kristin Molton. She told me that ICE propagandist Virginia Kice had categorically denied the report. I sent her the emailed responses to my queries ICE had sent to me earlier. Here they are, verbatim:

[JS]3) Is it consistent with government policy for ICE agents to pose as religious workers in order to gain access to homes for the purposes of issuing arrest warrants to immigrants who have no criminal history?

[ICE:]DRO officers are authorized and trained to conduct ruse operations. The use of ruses in law enforcement operations is an effective law enforcement tool that enhances officer safety. One main objective of a ruse is to prevent violators from fleeing, thereby allowing for a safe arrest that does not place the violator, the arresting officers or innocent bystanders at risk.

[JS:]5) Is it consistent with government policy for ICE agents to represent themselves as an immigrant's attorney for purposes of arranging to meet in the attorney's office and then arresting the immigrant in the lobby?

[ICE:] As stated in response to question 3 above, DRO officers are authorized and
trained to conduct ruse operations, however, DRO officers do not routinely conduct ruse operations in attorney's offices.

I gave ICE an opportunity to deny that it impersonated religious workers and attorneys, and ICE instead explained how these operations were part of their mission. In response to this reporter telling me that ICE's Ms. Kice denied the Mormon operation, she quoted my response: "How do we know it's not part of their ruse operation to lie about ruse operations? They told me it's [impersonating religious workers] consistent with their policy. Why would I doubt it?"

ICE agents lie as part of their daily operations, and ICE has a team of expert propagandists trying to cover this up. This is offensive to the rule of law and any possibility of responsible self-governance. How can citizens and Congress regulate ICE when ICE lies about its actions and obstructs those in its custody from meeting with reporters?

The Nation recently published an editorial in which I gave voice to the frustration among attorneys and people in ICE custody that, shockingly, ICE refused to issue regulations for its detention operations. The violations above are a result of this.

Alas, space did not permit sharing some insightful quotations on this subject. When federal agents worked under a similar cloak of lawlessness in the 1920s, federal judges and senior attorneys protested. Of the "Red raids," in which agents used the pretext of immigration violations to disrupt communist organizing, one judge squashing a deportation order wrote:

Assuming petitioner is of the so-called 'Reds' and of the evil practice [sic] charged against him, he and his kind are less a danger to America than are those who [e]ndorse or use the methods that brought him to deportation. (Judge Bourquin, 263 Fed. 110, 113)

Another judge said of J. Edgar Hoover’s raids:

"a mob is a mob, whether made up of Government officials acting under instructions from the Department of Justice, or of criminals, loafers and the vicious classes. (Judge Anderson 265 Fed. 17, 43)

In a third case, the federal court held:

The 'mild mannered' methods employed do not change the truth that the arrest and detention were wholly without authority of law....The relator is charged with a failure to observe the immigration laws; she is sought to be condemned by another violation.

The principle that protecting U.S. citizens from government thuggery should be prioritized over protecting against the immigration of criminal aliens is of course the raison d’etre of the Bill of Rights and thus a longstanding central tenet of this country’s system of governance.

This morning at the Eloy Detention Center, Assistant Warden Karl Stansel and Chief of Unit Management Wilson informed me that ICE Assistant Field Office Director Michelle Lee and Correction Corporation of America's Mr. Swenson, the managing director for CCA in Arizona, had instructed him not to allow me into attend immigration court hearings that day. Warden Stansel said he was told the order was issued because of an investigation being conducted after ICE agent Vincent Picard informed them of how I was mistreated during my visit last week, when I was illegally pulled out of an immigration hearing by a CCA guard.

I started to laugh, "You realize how absurd this is: you are preventing me from having access to the courts because of an investigation into my being prevented from having access to the courts? This is only going to cause another investigation." (According to a DOJ regulation, immigration courts are supposed to be open to the public.)

I asked them for a legal reason for my being denied access to the courts that morning. None was offered. Instead, Asst. Warden Stansel said, "This investigation is for your safety." I said I thought it was great that they were doing an investigation but I didn't understand why this would prevent my access that day. What if I waived my safety concerns? He repeated that he had been ordered by his warden who had been ordered by someone else not to allow me in.

To their credit, Ms. Wilson and Asst. Warden Swenson seemed genuinely pained by having to convey this information, and they did not disagree when I pointed out the irony of them deporting people for a simple infraction of legal status while they were perpetrating a serious violation of the U.S. Constitution, one of many that are occurring here and in ICE operations across the country.

[UPDATE, 3/10/10] I learned today for the first time a bit more about the alleged allegation for conduct from Ernestine Fobbs, ICE public affairs officer, and John Mills, a CCA investigator. It is truly incredible and deeply disturbing. I believe the message I drafted to Ms. Fobbs conveys what is happening. ICE is refusing to let me read any of the documents associated with alleged allegations concerning events at the Eloy Detention Center.

Dear Ernestine,

I just spoke by phone with John Mills, the CCA investigator into my alleged allegations.

You told me that the investigation was still ongoing. He told me that he concluded the investigation yesterday afternoon. Unfortunately, the investigation was into nonsense and not into the substantive concerns about my access to the courts being obstructed.

In response to Mr. Picard asking me how I was doing following my visit to Eloy on Thursday for the master calendar hearings I said, "I'm fine but a bit bruised from running the g[au]ntlet." Apparently Mr. Picard conveyed this sentence verbatim, but the investigator understood the meaning. "You're a literary type, so I took that to be a metaphor."

Nonetheless, CCA launched an investigation into whether rows of men with clubs had been attacking me on Thursday.

Mr. Mills told me that he had not observed this. He did observe my being told to leave a court room but he said he did not report on this or any of my other concerns about my access being obstructed by verbal instructions or people keeping me in and out of locked areas. Instead of investigating specific charges about CCA obstructing access to the courts, CCA investigated a metaphor.

Sincerely,

Jacqueline Stevens

--------------
UPDATE 3/15/10: Maria Hinosa read this post and interviewed me about Joseph Anderson for the NPR show "Latino USA." It aired this weekend. You can listen to it here.

Joe Anderson's Attorney to ICE: Read the Rules, Stop Holding Someone With Evidence of U.S. Citizenship

Last week I wrote about Joseph Anderson, someone the U.S. government is trying to deport despite evidence indicating he is a U.S. citizen.

ICE has issued the following statement:

In the immigration proceedings concerning
Joseph Anderson and issues related to his continued
detention, ICE maintains, based upon documentation
and court decisions, that Mr. Anderson is a citizen
of the Philippines and a lawfully admitted permanent
resident of the United States who has forfeited his
residency status due to [criminal convictions for
nonviolent crimes].

Significantly, in October 1977, the U.S. Embassy in
Manila rejected Mr. Anderson's claim to U.S.
citizenship because he was not his U.S. citizen
stepfather Harold Anderson's blood child and
therefore did not have a valid claim at that time.

[Mr. Anderson is not a "blood child"?  What kind
of 21st century government uses the language of a
"blood child"?]

Mr. Anderson was admitted into the United States as
a lawful permanent resident in 1978 as the step-child
of a U.S. citizen.

In November 2003, Mr. Anderson was convicted of Arizona
state felony charges ... [P]ermanent residents guilty
of these crimes are subject to removal from the United
States.  As a result, he came into the custody of U.S.
Immigration and Customs Enforcement when he completed
his sentence in June 2007 in order to be placed in
removal proceedings.

Multiple court decisions by the Executive Office for
Immigration Review and the Board of Immigration
Appeals (BIA) have since found that Mr. Anderson is
not a citizen of the United States and that he should
be removed to the Philippines for his crimes.  Mr.
Anderson has not submitted any probative evidence
that he was legitimated by his step-father, Mr. Harold
Anderson, under federal or state laws following his
admission as a lawful permanent resident in 1978. 
Nevertheless, he will continue to have an
opportunity to do so in upcoming appeal proceedings,
as he has a Petition for Review pending with the
Ninth Circuit Court of Appeals.

Mr. Anderson is a felon ..., thus ICE is statutorily
mandated by the Immigration and Nationality Act to
keep him in detention during his proceedings. 
However, based on 9th Circuit precedent decisions, he
was entitled to and has received a bond redetermination
hearing, at which an immigration judge ordered his
release upon the payment of a $10,000 bond. He has
failed to post that bond, and thus remains in ICE
custody.

Here is the problem with this statement: Mr. Herbert Flores-Torres. Last week I made a mistake and said that ICE held him, a U.S. citizen, without authority for three years.

In fact, ICE locked up Mr. Flores without authority from June, 2005 until December, 2009, four and a half years. (There are many other cases like this I've encountered in my research; space does not permit their discussion here.)

Mr. Flores suffered through the same legal nightmare and ICE custody as Mr. Anderson--including several negative decisions on his U.S. citizenship claim by an immigration judge (hereafter, EOIR attorney) and the Board of Immigration Appeals. But he eventually won.

To ward against this ICE has come up with a new policy: the government may issue deportation orders and require hearings in an immigration court, but ICE may not keep people in custody who provide evidence of U.S. citizenship. The memorandum says, "In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention."

Regardless of the ultimate determination of Mr. Anderson's citizenship, Kari Hong, Mr. Anderson's attorney, thinks it's time for ICE to start following its own rules and release her client immediately: "The policy allows the immigration proceedings to continue but with him to be out of custody. This seems a reasonable regulation. It ensures you do not have a U.S. citizen detained. ICE appears to be in violation of its own regulation."

Although finding against Mr. Anderson on the merits of his claim, the Board of Immigration Appeals found evidence on his side and wrote, "We agree there is some support for his argument" claiming U.S. citizenship.

That this position has been rejected means little as far the final disposition of Mr. Anderson's citizenship claims. Mr. Flores is a U.S. citizen and the BIA ruled against him as well. However, it's hard to understand how the government can maintain it has certainty that Mr. Anderson lacks any evidence of citizenship when the BIA says it found "some support for his argument."

Moreover, the government is in no position to assert its certainty about Mr. Anderson's evidence when they were demonstrably wrong about similar claims they made in the case of Mr. Flores, and when the EOIR has had so many of its decisions reversed by the federal courts. One federal decision went so far as to publicly ridicule the EOIR:

This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice. Whether this is due to resource constraints or to other circumstances beyond the Board's and the Immigration Court's control, we do not know, though we note that the problem is not of recent origin. All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts, and that the power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them in its Immigration Court and Board of Immigration Appeals. Benslimane v. Gonzales, 430 F.3d 829 (2005).

In Mr. Flores's case the district court judge's opinion on his case was a lengthy and nuanced evaluation of family law in California and El Salvador, a model of textual exegesis that bears no relation to the poorly reasoned opinions produced by the EOIR. For instance, Mr. Anderson is a citizen if Harold Anderson, Jr. is considered to have legitimated Joseph in his residence or domicile, as well as Joseph's place of birth. Under California law during this period, Harold Jr. appears to be Joseph's presumptive father, but the Board only considered paternity laws in the Philippines.

In his second Motion to Reconsider, Mr. Anderson's appeal conveyed frustration with the Board's failure to consider the law and legal analysis:

In its decision, this Board stated, ‘Insofar as the respondent was born in the Philippines, we must look to that jurisdiction’s laws to determine whether he has been legitimated.’ BIA dec. at 2. The decision offered no explanation as to why the place of birth controls for purposes of legitimation. [Note:] Several paragraphs before the discussion of legitimation, the decision states that the ‘applicable law for transmitting citizenship’ is the ‘law in effect on the child’s birth date.’ BIA Dec.at 2. While this Board’s decision may be implying that the relevant law is also the law in effect at the place and time of the child’s birth, case law only supports the interpretation that the date of the child’s birth is controlling for purposes of determining the law under which citizenship, not legitimacy, will be determined. Furthermore, the idea that the applicable law of legitimacy is the law in effect at the place and time of birth is at odds with the plain language of the statute...

No wonder the federal courts have to intervene.

This is not to say the federal courts always get it right. Two recent opinions in the Ninth Circuit misread U.S. citizenship law and misstate the history of kinship rules in world history, including the United States. Martinez-Madera v. Holder, 599 F.3d 947 (2009) and U.S. v. Marguet-Pillado, 560 F.3d 1078 (2009) assume that families are based on "blood," not law.

Here's what the opinion states in Marguet-Pillado:

It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution, and the latter is provided for by the enactments of Congress. It would be a bit surprising to discover that over the decades Congress had selected a method that relied on neither concept, but, rather, was content to have United States citizenship acquired at birth by a person born out of wedlock, who was not born on United States soil and who, at the time, did not have a natural parent who was a United States citizen. As it is, there is no cause for surprise

The problem with this passage is that citizenship law from 1953-1986 provides for exactly this possibility, by making family ties retroactive to the time of birth. A step-father who marries one's mother becomes one's father under this law.

8 USC §1409(a) defines “child” for purposes of acquired citizenship as an

unmarried person under twenty-one years of age who is—(A) a child born in wedlock; (B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of step child occurred; (C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of he legtimating parent or parents at the time of such legitimation; (D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person.

(B) applies not only to the situation the appellate court ridicules, but to Harold Andersons Jr.'s relation to his son, Joseph. Only Officer Anderson was named on Joseph's birth certificate as his father, had married Joseph's mother, and had held him out as his son as long as Joseph knew.

Moreover, the truly absurd statement is that kinship ties have been based on knowledge about paternal genetics. That information was not even available until the late 20th century. This language, and laws about the authority of State Department findings, also explains why the U.S. embassy's ruling against Mr. Anderson's citizenship claim when he was two do not controvert his claim now.

Many other U.S. citizens had been given improper documents at some point indicating they were legal permanent residents. This is evidence of government error, not grounds for deportation.

Complicated legal questions cannot be evaluated by a blog. But if the government says that ICE may not incarcerate anyone who has even the possibility of probative evidence of U.S. citizenship, and Mr. Anderson has grounds for his arguments, then while this is being settled, ICE should not risk punishing Mr. Anderson for its mistakes, as it demonstrably did in the case of Mr. Flores.

Mr. Anderson's family cannot afford the $10,000 bond. The procedures for releasing people with evidence of U.S. citizenship apply to everyone, regardless of any criminal history. Mr. Anderson served his time for a nonviolent crime far less severe than the one his government is perpetrating against him: false imprisonment. It's time for his government to follow the rule of law and release him.

----------------
Thanks to the ACLU, the Nation, the Nation Institute, and Yale Law School's Media Freedom and Information Access Practicum I did go on the tour of the Varick Detention Center on Tuesday. I will be writing about this shortly for The Nation and at more length here as well.

Also, on Sunday, Henry Raines had me on his am radio show in Tampa to talk about States Without Nations, the book. If you want to hear a caller denounce me as a pot smoker (his claim, not mine), listen in...

ICE Agents Lose Track of US Citizens in their Custody, And the Rules for Releasing Them

On April 9, 2008, when I met Joe Anderson, then 30, through a televideo contraption, he was still in shock.

It had been over three months since ICE locked him up at the Pinal County Jail in southern Arizona while they were disputing his U.S. citizenship and Joe still couldn't believe it. His family lacked funds for an attorney and he was doing his best to represent himself, and also relying on the advice of overstretched attorneys at the Florence Immigrant and Refugee Rights Project, which runs the EOIR's Legal Orientation Program in the area.

In late March, 2009 Joe was still there. Confusion and outrage were replaced by grief and frustration over the senseless deprivation of his liberty and the threat that he would be sent to a country he hadn't seen since infancy and where they spoke a language he couldn't understand.

Joe said he was keeping his eye out for shows on the Travel Channel, in case they had something on restaurants in the Philippines, the country to which his former state governor, Janet Napolitano, is trying to ship him. He was thinking it might be good to know about fancy tourist restaurants that might need a native English-speaker.

(I asked him about the access to cable television and he said ruefully, "Oh, yeah, they keep us well-entertained in here.")

Because he was born on a foreign military base, as was his Senator, John McCain (R-AZ), Joe's evidence of U.S. citizenship is more complicated than a simple birth certificate.

Under ICE procedures, ICE is prohibited from keeping him locked up while the government sorts this out.

A memorandum from John Morton, ICE Assistant Secretary dated November 19, 2009, which I obtained recently through a FOIA request, states:

If an individual already in custody claims to be a USC, an officer must immediately examine the merits of the claim and notify and consult with his or her local OCC [Office of Chief Counsel] ... If the individual's claim is credible on its face, or if the investigation results in probative evidence that the detained individual is a USC [US Citizen], the individual should be released from detention.

"Probative," according to the Oxford English Dictionary, means "Having the quality or function of proving or demonstrating; affording proof or evidence; demonstrative, evidential."

Joe's birth certificate with his father's name on it, and the copious documentation of his father's marriage to Joe's mother as well as the rules for legitimacy and paternity in the places of his residence (California and Arizona) easily meet this criterion. Probative does not mean conclusive "proof," only that the evidence is relevant and could contribute to legal decision.

This morning I called the Pinal County Jail and spoke with Commander Montanyo. I told him that the jail he was running for ICE was holding someone over whom ICE had no legal authority. He gave me the number of the ICE deportation and removal office at the nearby Florence Service Processing Center (Orwell talk for ICE Jail).

I called the ICE jail where the ICE agents work in Florence and the operator said I needed to speak to "upper management." She connected me to the voice mail for Nicole Moore and I left a message indicating that her office was unlawfully ordering the confinement of someone with probative evidence of U.S. citizenship.

Because the procedures indicate that ICE prosecutors are supposed to review these cases, I called the DHS Phoenix office and spoke with the ICE desk attorney, Jim Harmony. I provided him with Joe's full name and "alien number" but Mr. Harmony said that he could not locate Joe in his database and questioned whether he was still being detained.

I gave Mr. Harmony the phone number of the Pinal County Jail as well as the phone numbers of two attorneys now assisting Joe with his appeals. He assured me he would investigate and provide me information he was authorized to make available to me.

A few hours later I called the Florence ICE jail and someone answered the phone.

Officer S. pulled up Joe's file and correctly pointed out that an "immigration judge" (hereafter EOIR attorney--these folks are NOT actual judges) and the Board of Immigration Appeals had found that Joe was not a U.S. citizen.

I pointed out that this was not a legally final determination of Joe's citizenship. BIA decisions on acquired and derived U.S. citizenship claim have been overturned by the Ninth Circuit Appellate Court and, recently, even by a district court judge- I will discuss Herbert Flores-Torres' case in a later post because it's so fabulous and also so complicated.

The rule I had quoted was not requiring ICE to release only people who had proven conclusively to be U.S. citizens--alas, ICE also needs education on this as well--but was indicating ICE agents lacked the legal authority to hold people who had "probative evidence" of U.S. citizenship.

Joe is not his father's biological son, but under the laws of Arizona and California, Joe is his father's legitimate son and this--along with the legal documents verifying this--is sufficient to trigger acquired U.S. citizenship. However, the BIA simply substituted their own understanding of paternity for the one in the law. In a related case in the Ninth Circuit, Herbert Flores-Torres recently prevailed in a derived citizenship claim that had been ruled invalid by an EOIR attorney and the BIA, but only after he had been held in ICE detention for two years.

The memorandum from Morton states:

While some cases may be easily resolved, because of the complexity of citizenship and nationality law, many require additional investigation and substantial legal analysis. As a matter of law, ICE cannot assert its civil immigration authority to arrest and/or detain a USC.

In the case of Mr. Flores-Torres, and thousands of other US citizens who have been confined by ICE, ICE has been demonstrably breaking this law.

Presumably that's why these procedures were developed. The only way that ICE can guarantee it is not confining U.S. citizens is if it releases people who are attempting to prove they are U.S. citizens.

DUH, right?

Except that Officer S. at the Florence ICE jail wasn't buying it. After telling me that the ICE records did not indicate Joe had even claimed US citizenship, which explains why his file had not been reviewed for release as the new procedures required, Officer S. kept repeating that the immigration judge and BIA had found against Joe and ICE was holding him for the appeal.

I repeated the points above and Officer S. said he would call me back.

True to his word, he called, "Can you send me a copy of what you were reading so I can send it to litigation?" I asked if he had misplaced his own copy or if he just had no idea what I was talking about. He said, "They come out with these new things every day."

Basically ICE was keeping its rules secret and then after I obtained them via a FOIA request, requiring me to send them their own rules in order for them to be enforced. (Sometimes I feel like ICE is detaining all the immigration attorneys, civil rights lawyers, and even me with this nonsense.)

"I was supposed to get out on my grandmother's birthday," December 23, 2007, Joe told me the first time we met. "She said that was the best present she could have." More than two Christmases later, in clear violation of ICE procedures, the law, and common sense, Joe remains locked up in the Pinal County Jail.

Jennie Pasquarella, staff attorney with the Southern California ACLU, after I explained the case, was struck by how long Joe's been detained: "Regardless of this memo, there's no good policy reason why someone with a credible claim to U.S. citizenship should be detained for years while they're fighting their case."

I'll be checking back in with the folks at ICE tomorrow and see if they have decided to read and follow their own rules.