How Many DOJ Attorneys Does It Take to Deport a U.S. Citizen? Boston Hearing Today

photo from Robert's mother, provided to Cardozo Law School Immigrant Rights Justice Clinic for lawsuit exhibit

Oral arguments on a Plaintiff's Motion for Summary Judgment are scheduled for today at 2 p.m. in Boston.  Six federal attorneys are named on briefs claiming someone with copious documentation of birth in Lawrence, Massachusetts is not a U.S. citizen

As reported here previously, Robert Dominguez was born in 1979 in Lawrence, Massachusetts and deported in 1999 to the Dominican Republic.  A decade later, in 2009, he procured a U.S. passport and returned.  In 2011, he was arrested on a drug charge and Immigration and Customs Enforcement (ICE) and the State Department decided to ignore copious photographic and documentary evidence and rescind Robert's passport.

(A previous team of civil attorneys led by a lawyer without expertise in citizenship and immigration law filed a lawsuit under the Federal Torts Claims Act, but did not first fix Robert's legal status; the case was dismissed.)

Robert is out of jail, but terrified of being deported again.  For Robert, citizenship is not a protection against deportation, and a run-in with the law means a ticket to the DR.  (I'm no expert, but I imagine that being hounded being ICE is not standard treatment for addiction.)

After receiving documents from the Deportation Research Clinic at Northwestern University, the Cardozo Law School Immigration Justice Clinic stepped in to see if they could figure this out.  

In 2013, a team led by Clinic Fellow Andrea Saenz met with Robert and initiated negotiations with the government.  When common sense failed to prevail, the Clinic went to court.  Under 8 U.S.C. § 1503 (Denial of Rights and Privileges as a U.S. Citizen), a judge can order the State Department and the rest of the U.S. government to fix their records and recognize Robert's rights as a U.S. citizen.  

In the ensuing years, Attorney Saenz and the Immigration Justice Clinic students amassed a shocking amount of evidence, including a photograph of Robert's mother pregnant with Robert, as verified by their location in a Lawrence hospital with another family who gave birth in that same time frame.  How many of us born here would have that?  And how about the Baby Dominguez hospital bed tag she saved?

The information above matches the information on Robert's birth certificate that was contemporaneously filed at the Lawrence City Hall, where it exists today.  

The one problem with the birth certificate is that Robert's mother's legal first name is Juana and not Patria.  To obtain sponsorship for a "green card" she was using the name of her husband's sister, who died at the age of nine.  You can read the details of this piece here. The bottom line is that none of this discredits the copious photograpic and documentary evidence of Robert's birth in the United States.  

The DR birth certificate Robert's mother procured when he was a toddler caused confusion in 1999 when Robert was 19 and in a remote detention center without contact with his parents or an attorney.  But in the intervening years this was all straighted out and the U.S. Consular office issued Robert a U.S. passport in 2009.

It was seemingly straightened out again in 2011, when the State Department's Diplomatic Security Service initiated a fraud investigation.   According to filed statements, "On October 13, 2011, Agent Baldwin conducted a field visit to Lawrence City Hall to personally verify the validity of the Massachusetts birth certificate Mr. Dominguez had used to obtain his passU.S. passport." 

Having found the original, authentic birth certificate with information that matched the biographical information in Robert's file, one would think the case would be over and the government would find a different way to waste taxpayer funds.  

Instead, Agent Douglas Baldwin decided that the birth certificate with Robert's name belonged to another individual.  Baldwin decided that Robert somehow came into "possession of a valid birth certificate that belongs to another person but bears his same name, childhood address, month, and year of birth" (Plaintiff Brief, Dec. 18, 2015).  Neither Agent Baldwin, nor the six federal attorneys denying Robert his lawful recognition as a U.S. citizen have been able to find the "other" Robert Dominguez, a different individual who has to exist to claim this is not Robert's birth certificate.  

According to the Plaintiff's Motion, 

Defendant's theory is that this 'doppelganger' Roberto Carlos Dominguez was born in the same town where Plaintiff grew up; was born in the same month and year as Plaintiff, early November 1979; at the time of his birth, had a mother living at 70 Cross Street, the same address where Plaintiff and his parents lived throughout his early years; and that, through some incredible coincidence, Plaintiff was able to obtain this individual's birth certificate.  (Pl. Motion of Law for Sum. Judgment, Dec. 18, 2015, p. 16)

 The Plaintiff brief also points out that, "Unlike the U.S. birth certificate, there is no corroborating evidence of a Dominican birth for Plaintiff, such as hospital documents or evidence of Plaintiff's mother pregnant or even present in the DR in 1979." (Pl. Motion of Law for Sum. Judgment, Dec. 18, 2015, p. 19)

I reviewed the facts in this case Wednesday with students in "The Rule of Law" seminar I teach.  We were discussing that week's assigned reading of Franz Kafka's The Trial (Der Prozess).  The focus was on Kafka's insights about how the law occupies our interior lives and that we everyday people are the ones who make it happen, not the remote officialdom one finds in texts by Max Weber.  At the same time,  Kafka points out, we preserve a view of the law as universal and beyond the specificities of individual quirks and demands.
 
We, including agent Douglas Baldwin -- with whom I spoke with just long enough to hear a gruff, sincere federal employee who was unmistakably a Boston native -- as well as his attorney colleagues, are the individuals responsible for how we engage the law, including when it comes to a poor kid from Lawrence.  (Baldwin sounded sincere in his desire to speak with me and need to have it cleared with his supervisors; no idea about his motives for deciding there must be another guy out there with the same address and mother as Robert, someone who has never been located and from whom Robert stole a birth certificate.)

By referencing a document from the DR his mother obtained to make the law fit his family's needs - so he would have something that gave him the same parents names as those of his siblings - the following attorneys are relying on a thin, obvious fiction and ignoring the thicker, more believable fiction of his still arbitrary state identity bestowed by the State of Massachusetts and the Government of the United States.

These attorneys are:

Carmen Ortiz, U.S. Attorney
Rayford Farquhar, Asst. U.S. Attorney
Benjamin Mizer, Principal Deputy Asst. Attorney Gen. Civil Division
William Peachey, Director, District Court Section, Office of Immigration Litigation
Elizabeth J. Stevens, Asst. Director, District Court Section, Office of Immigration Litigation,
Brian C. Ward, Trial Attorney, Office of Immigration, Civil Division, US DOJ

Enough with the harassment, yes?  Close the case.  Instead of putting our government's resources into persecuting U.S. citizens, how about supporting attorneys to represent those presently detained and facing a gang of agents and lawyers dedicated to removing people from their la
wful place in the United States?  Are the attorneys above especially otiose robots doing their jobs, or are they offering disingenuous pseudo-legal feints to avoid losing?  Either way, right now, they're the ones fraudulently misstating Dominguez's true identity and trying to sanction government kidnapping.

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2/20/20  UPDATE:  Attorney Saenz reports that at yesterday's hearing the judge seemed impressed by the amount of evidence her team amassed proving Robert's birth in the United States.  I know it's work for Saenz and her students, but it wouldn't be the worst thing in the world if they lose they Motion for Summary Judgment and the case goes to trial.  That way the jury and public can see for themselves the absurdity of the government's position and, by extension, the irresponsibility of those advancing it. 

Also, thanks to Dan Kowalski, editor of the LexisNexis Legal Newsroom Immigration Law, for linking to this story and coming up with a better title than the one of my original post, "How Many U.S. Attorneys and Assistant U.S. Attorneys Does It Take to Deport a U.S. Citizen?"  I just changed mine to the one he used because Dan's title also more accurately reflects the distribution of attorneys across various DOJ components.

U.S. Citizen Released after 18 Months in Houston CCA ICE Jail

tsebresos.deviantart.com

  U.S. Government STILL Capturing Its Own Citizens and Holding them as Aliens
 

Case Clogs Crowded Immigration Court Docket
Immigration and Customs Enforcement Wastes Taxpayer Money,
Ignores Immigration Judge Request to Investigate and Drop Case Based on Lack of Evidence

 Deportation Research Clinic Intervention Helps Free Another U.S. Citizen

On January 5,  2016, Lorenzo Palma, with a lawyer finally by his side (Nashville-based civil rights attorney Andrew Free), won his release from the Houston CCA immigration jail.  Ever since immigration judge Saul Greenstein flagged the possibility that Mr. Palma, 39, unbeknownst to himself, might have acquired U.S. citizenship from his mother, who, born in Mexico in 1948, unbeknownst to herself, might have acquired it from her father, the family had been on a scavenger hunt to find evidence the government already had to prove Lorenzo's maternal grandfather Lazaro Palma was born in the United States and resided there 10 years, five of which were after the age of 16.   

The search required the location of decades-old records, ranging from Lazaro Palma's 1914 Texas birth certificate to a 1950 manifest to various other documents and affidavits, all of which cost the family time, worry, and money.

Lorenzo's is a case study in the different outcomes when respondents are subject to either the "Goofus"-s or "Gallant"-s who preside over immigration courts, and the need for everyone who is in ICE custody to be assigned a government-funded attorney with expertise in immigration, citizenship, and civil rights law.  

(Goofus and Gallant are children's book characters who illustrate situational choices that are either infantile, intemperate, and injudicious, or mature, thoughtful, and judicious.)

 "Goofus and Gallant - October 1980" by Source (WP:NFCC#4). Licensed under Fair use via Wikipedia - https://en.wikipedia.org/wiki/File:Goofus_and_Gallant_-_October_1980.jpg#/media/File:Goofus_and_Gallant_-_October_1980.jpg

IJ Goofus rushes through cases, ignoring the possibility respondents might be U.S. citizens.

IJ Gallant makes careful inquiries of respondents to ascertain if they may be U.S. citizens.

 

Although the immigration court benchbook and various press releases from the Executive Office of Immigration Review suggest that immigration judges conduct inquiries of pro se respondents to evaluate the possibility of U.S. citizenship, Lorenzo, like hundreds before and after him, had the misfortune of encountering Goofus Richard Walton, who has a cavalier attitude toward the respondents before him and outside the presence of observers fails to inquire of the U.S. citizenship status of respondents, which requires as well inquiries about the citizenship status of their parents and grandparents.  

(On July 30, 2015 Walton threw a bit of a temper tantrum in talking over and ignoring an attorney's arguments to have a bond hearing. The attorney and public were denied a reasoned response to her detailed legal analysis as to the custody implications of the government not meeting its burden of proof; even if Walton disagreed, the public deserved the adjudicator's reasoned analyses of the case law she cited, not just a denial by fiat.  The attorney had flown out from Los Angeles and abided by other requirements he imposed. I was appalled by what I observed in that hearing and others Walton conducted, and requested a copy of this recording under the FOIA, which does not require a privacy waiver for the release of public hearing recordings, just written records. You can listen to him rant here.  1 of 2, 2 of 2. 

The deportation order was terminated, confirming the government had a weak case, as the lawyer advised Walton; I lost touch with her and do not know further details.)

Lorenzo's travails began a few months before he was supposed to be paroled from the prison at Huntsville, Texas.  Per standard operating procedure, in mid-February, 2014, an ICE agent impersonated a legal worker and spoke with Palma on the pretext of "trying to figure out your case" for parole purposes, Palma told me.  From this interview she obtained information the government used for its arrest report and Notice to Appear (NTA).  Until Lorenzo and I were reviewing his documents in late July, 2015, it never occurred to Lorenzo that she was with ICE, "No one had ICE shirts; they spoke with a whole group of us," he told me.  

In  June, 2014, still at the Huntsville prison a month after he was supposed to be released on parole, he appeared in a televideo hearing before adjudicator Walton, who went through the motions of informing Lorenzo of a list of overburdened pro bono attorneys who rarely provide individual representation.  Walton never asked questions that would ascertain whether Lorenzo might be a U.S. citizen, a matter of some complexity. 

 Lorenzo wrote every attorney and organization on the list.  No one responded. 

Meanwhile, on September 22, 2014 IJ Greenstein took over the case.  At their first encounter, he asked about the citizenship status of Lorenzo's mother and grandfather, and immediately ascertained that Lorenzo's genealogy was consistent with a potential claim of U.S. citizenship.  From that first hearing he repeatedly cajoled ICE agents to investigate, and challenged the government attorney for claiming that Lorenzo had produced no probative documents when it turned out that he had -- after persistent questioning Greenstein discerned the ICE attorney did indeed possess a copy of Lazaro's Texas birth certificate and that ICE had failed to follow up on this with further research.   

You can listen here--note IJ Greenstein's attentive patience and the government attorney John McPhail's (sp?) indifference to the fact that his own carelessness may mean a U.S. citizen is being falsely imprisoned.  

Over the course of numerous hearings one discerns IJ Greenstein doing work that should be done by the government or an attorney, and only as a last resort by an immigration judge.  At a hearing in March, 2015, exasperated by ICE failing to heed his request to interview Lorenzo's mother, IJ Greenstein places a call to her himself and, on the record, waits while she pulls off the freeway before finally figuring out the narrative but not proof of hers and Lorenzo's U.S. citizenship.  

Toward the end of their telephone conversation, Rita, who up until that point had been addressing IJ Greenstein's questions through the interpreter as she might have been discussing old family affairs with an inquisitive neighbor, realizes exactly what is happening and is overwhelmed.  IJ Greenstein has made no promises and is stern about Lorenzo's burden of proof; but IJ Greenstein's tenacity in pursuing the truth moves Rita to tears.  The interpreter translates, "It is very hard to find a judge like you, very considerate, very hard to find anywhere a judge like you."

At the behest of IJ Greenstein, YMCA attorney Tatiana Obando pushed Lorenzo's elderly stroke-afflicted mother to fax Ms. Obando relevant papers that she in turn submitted to the court; but Ms. Obando lacked the resources to do her own investigations or to appear in court on Lorenzo's behalf.

When, by sheer coincidence, I first met Lorenzo while observing hearings for the detained docket on July 30, 2015 Lorenzo told IJ Greenstein that he was giving up and on the verge of agreeing to sign out and be deported to Mexico, a country where he had never resided and in which he was born only because his mother could not afford Texas hospitals.  Even more poignant: Rita, who acquired U.S. citizenship from her father Lazaro, remained in Mexico and was raised by her grandmother, and not her parents in Texas, because, she told me, "I didn't have papers."

The rest of the story behind Lorenzo's release is one of a little organizational assistance on my part and Attorney Free's hard work, time, and dedication to giving Lorenzo the attorney everyone in deportation proceedings needs. (Free is an attorney who collaborates with the Deportation Research Clinic, of which I am the director; Free represents the Clinic in our FOIA litigation and has sued the government for detaining U.S. citizens encountered in Clinic research.)

Just after the ruling in his favor, Lorenzo called me from Houston CCA, elated and also aware of how easily it could have gone the other way,  "I was praying, please God, don't let me go in there by myself."   Lorenzo had spoken with attorney Free the week before, but wasn't sure his family could put together the funds for Mr. Free's plane trip.  Lorenzo was overwhelmed with gratitude when on the morning of January 5, he first laid eyes on Mr. Free, a solo practitioner who had cobbled together the cash he received from Lorenzo's common-law wife, Jacqueline, with his own frequent flier points and somehow made it for the hearing.  

Confronted in court for the first time by a lawyer, the government conceded it had not met its burden of proof and waived appeal. Lorenzo was released hours later and is with his mother and catching up with his brother and sister nearby; Jacqueline recently visited and is back at her job in Colorado.  Lorenzo will finish up his parole in Texas and then return to their home near Denver in August.

Legal Analysis
The fact-pattern above is fairly typical.  It has two implications: First, it further underscores the need for everyone in removal proceedings to have a government-funded attorney, to guarantee no further violations of the well-recognized due process rights U.S. citizens have not to be deported as aliens, and to ensure the legal rights of everyone else in deportation proceedings, as the Second District Court judge pointed out this fall in an order responding to the National Immigrant Justice Center Watson civil complaint.

In addition, this case raises tough questions about the reasoning behind the recent bizarre Ninth Circuit decision deferring factual findings of U.S. citizenship to a single district court judge.  I will discuss this in my next post, updating the filings by the Cardozo Immigration Justice Clinic on behalf of U.S. citizen Roberto Dominguez, but it is obvious that cases with so much at stake and of such complexity -- in which the government is the main source of the evidence on which the respondent must rely for her rights -- allowing a single individual to make such decisions cedes too much power to the government.  This deference to the fact-finding of a single judge goes directly to the logic of the Sixth Amendment: a right to trial by a jury is not just protection against an authoritarian government, but also an assertion that single decision-makers should not be granted unilateral authority.  Especially because those in deportation proceedings at present do not have a right to a government-paid attorney, they have an even greater claim on the government's institutions of judicial review.

Massachusetts Native, Deported for Ten Years, Sues for $12 Million

The tag for the Lawrence General Hospital infant crib Robert's mother saved from when he was born there; it has the same date and other information that appears on his official birth certificate.

Robert's Amended Complaint, filed October 4, 2012 by the law office of Gerald Phelps, Halifax, MA

Robert Dominguez was born in November, 1979 in the Lawrence General Hospital, a modest brick building in the heart of Lawrence Massachusetts, about a 30 minute drive north of Boston.  According to the first line of the 14th Amendment, that would make him a citizen of the United States: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." 

But in 1998, deportation agents interviewed Robert, then 18 years old, at the Middleton jail.   They asked him for proof of his claim to U.S. citizenship, "I'm American, I don't need to claim U.S. citizenship.   If I'm born here, why do I need to claim it.  I'm a U.S. citizen, I'm born here, that's all that matters.  I let him know my part."

Robert went back to his cell and thought that was the end of the matter. But when he was released, instead of being picked up by the bus that was supposed to shuttle him to the Lawrence Court House, he was picked up by some guys in green uniforms.  "They kidnapped me from Middleton and brought me to New Hampshire, and kept kidnapping me to different systems." Over the course of a couple months, deportation agents ignored his statements about being born in the United States and shuffled him around a few deportation jails in New Hampshire and Massachusetts before taking him to a detention center in Batavia, New York where, he said, "A lot of people were on a hunger strike.  'If you bring me back to my country they're going to kill me.'  I'm thinking, What the hell is this place?" 

 For the first time he was given a copy of some bogus paperwork his parents put together in the 1980s and that Robert didn't know about.  Those documents stated, incorrectly, that Robert was born in the Dominican Republic. Robert also has two social security numbers, one from shortly after he was born, and another from  after he returned from the DR with his mother.

Robert didn't have an attorney, nor did he have in his possession his certified birth certificate with the same information on the Lawrence hospital bed tag above.  And like every single individual on the planet, he lacked first-hand knowledge of where he was born.  (An immigration judge once told me that the testimony from respondents about their place of birth is always heresy and should not be credited: the only relevant testimony on this question would be that of a respondent's mother, who is pretty much never present for these proceedings.) 

Knowing nothing about documents that Robert himself did not create, had never seen before, could not authenticate, and containing information he could not verify, he conceded alienage and asked the Department of Justice attorney John Reid, an immigration judge, not to deport him because even though he was learning he'd been born in the DR, he'd believed all his life he was a U.S. citizen.  The hearing recording reveals Robert telling Reid,

I never have had an immigration problem, getting jobs, being part of a school. It never affected me. They always asked me for my papers and where I was born and I would always tell them I was born here in the United States because that's what I thought all my life, until recently I just found out I was born over there, and I never had any problems with none of that. And if you could really reconsider me not getting deported, I would really appreciate it.

Robert explained, "I got all these very professional American government people right there telling me [I'm not a U.S. citizen] and I'm like, 'Wow...'"  Reid, who is still deporting folks from the same court in Batavia, never asked for more information about why Robert thought he was born in the United States.  Speaking over a televideo contraption set up in the Batavia, New York detention center--the only attorney in the room with him being the guy working for the government and trying to deport him, Robert begged Reid for mercy, when what he should have been demanding is the enforcement of his Fifth and Fourteenth Amendment due process rights, including a right to an attorney and not what Reid mentioned, a gimmicky list of folks who supposedly would provide pro bono legal services. 

The U.S. Constitution requires neither that Robert nor anyone else do something impossible, i.e., recall first-hand the details of her birth, nor that one have legal expertise on the nuances of deportation and citizenship laws.  And yet that is exactly what the government is demanding when it deports people, including U.S. citizens, without providing assigned attorneys.  

(In many regions, the deportation officers, the IJs, and especially the respondents, know that referencing these provider lists is a pro forma judicial joke at the expense of the respondents and the larger public appalled at what the government is doing in the name of "the people."  Some regions have lists that have top-notch nonprofit attorneys who do excellent work but in too many places these lists are distributed only so the agency appears to comply with a regulation requiring the EOIR to maintain such a list.  Even if there really is a working number and a real attorney answers, they are not able to provide individual assistance without compensation to every confused kid with a rap sheet who calls them, and indeed that was exactly what Robert said happened, and what he said was common knowledge among the other folks locked up with him.   Nonprofits firms and pro bono attorneys are doing great work, just as did individual attorneys before the landmark Gideon case; indeed it is precisely the benefits that some receive as a result of this work that makes clear the importance of a right to assigned counsel for everyone.  Robert is not alone; many of the U.S. citizens who are being deported have this happen for very similar reasons: parents creating confusing paper trails that assist perhaps education abroad or their own immigration status, documents that have implications for their children of which the children are entirely unaware.)

The next thing Robert knew is that Reid ordered him deported to the Dominican Republic, and not to return for at least ten years.  His file shows a round-trip trip ticket booked on American Airlines from Buffalo, New York to Santo Domingo, leaving on October 13, 1999 and returning on October 14, 1999.  Robert, of course, only used half of that ticket.  When he finally overcame his fear of being imprisoned for trying to return before ten years, he put together the documents his mother had saved from when he was born in Lawrence, presented them to the U.S. consulate in Santo Domingo, and in 2009 was issued a U.S. passport and used that to purchase with his own funds a ticket home.  That passport has since been revoked and is part of Robert's damages in the pending lawsuit. 

The next post will describe Robert's time in the DR, including some amazing stories about his work as a telemarketer for global finance firms, including accounts of fraud by AIG and other companies.