ICE Locking Up Hundreds of US Citizens in Recent Years, Chicago Case Suggests ICE Obstruction of Justice

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Data recently released by the Executive Office of Immigration Review (EOIR) responsive to my FOIA request shows ICE today still is holding US citizens from days to years prior to their cases being terminated or closed. 

JUNE 1, 2015 UPDATE--Following more detailed screens for duplicates and analysis of outcomes other than terminations or removals, a final analysis has been produced.  Please see here for final results and dataset. Also, Andre Joseph, to obtain his liberty from the McHenry County Jail, decided to accept an order deporting to Jamaica.  We are still awaiting the release of his full military file for evidence to corroborate his narrative of being naturalized in the time frame of his recruitment by the U.S. Navy in Springfield, Massachusetts.

I am another  "Mark Little"! [sic]

ICE Use of Fraudulent Data Violates Due Process

Andre Joseph has been in ICE custody in Chicago since September 9, 2014.  Joseph himself had been deported and, back in the U.S., was trying to obtain paperwork from his 1984 naturalization.

 Joseph is concerned about the fact that after he was arrested ICE agents ignored his requests for an N-600 form (so he could obtain his already existing Certificate of Citizenship) and then, after he obtained one, failed to help him procure the passport photos necessary for its submission.

According to Joseph, when he was 18 he went to the federal building in downtown Springfield, Massachusetts to take the test for joining the Navy.  His recruitment officer told him to go upstairs and naturalize. Joseph says he passed the test and was sworn in as a US citizen, but was so anxious to cram for the military exam that he dashed back downstairs before picking up the certificate.

The regulation on citizenship states that the effective date of naturalization is the day one is sworn in (8 CFR 1337.9).  Joseph says he surrendered his green card and did everything he was supposed to do, and that the folks in the military office congratulated him on his citizenship and made positions available to him in the Navy that would not be available if he had not become a citizen.

Consistent with Joseph's account is that there is indeed a federal building on Main Street (1550) in Springfield, just as Joseph testified last week at his hearing before adjudicator Richard Fujimoto,

 Further confirmation is that the same building housed a US Navy Recruiting office,

AND, still has DHS offices,

,
(RAC = Resident Agent-in-Charge)


According to Northwestern student Hayley Hopkins, who observed the televideo hearing last week in downtown Chicago, the government trial attorneys tried discredting Joseph by claiming that in this time frame, he would have needed a judge to perform the ceremony.

Maybe, maybe not.  Either way, the ICE attorneys never informed adjudicator Fujimoto that until 2008, the federal building at 1550 Main Street, Springfield also housed the U.S. District Court of Western Massachusetts.

Joseph's narrative suggested the recruiters there routinely were naturalizing the new recruits and it is plausible they had an arrangement with the federal judges to facilitate this in an expeditious fashion, i.e., that day.  (It also could have been coordinated through a Massachusetts program also housed in the building, which focused on attracting and supporting immigrants in the region.)

Also consistent with Joseph's narrative of effecting his naturalization in 1984 is the E-Verify print-out Joseph's wife brought with her to the hearing last week.  (She runs a small business and in 2012 used the interface to inquire into her husband's status.)

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Hopkins told me she was shocked that the DHS attorneys, and also adjudicator Fujimoto, appeared to have no familiarity at all with E-Verify, which since 2008 has been using social security cards tied into Citizenship and Immigration Services databases that automatically update citizenship status after naturalization.  (This recalls retired adjudicator Jimmie Benton's observation about the poor training EOIR provides its adjudicators.)

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The trial attorneys claimed to have exhaustively researched the case, but failed to mention any of the information above.

ICE public affairs director for the Central Region, Carl Rusnok, has ignored repeated inquiries by phone and e-mail.  (Typically they respond that they cannot comment on cases for privacy reasons, but since I attached Joseph's privacy waiver they just ignored the queries altogether.)

ICE Agent Obstruction of Justice and RICO Violations
At this point it is impossible to say whether the database will back up Joseph's narrative.  But it's also impossible to say if this is because Joseph is confused or because DHS components are altering or destroying records, as ICE agents demonstrably did when they reported the circumstances of Joseph's arrest.

This is a very serious problem.  The main evidence of citizenship and many other immigration claims lies in government maintained records.  If the government is manufacturing or hiding its own records, as it has clearly done with Joseph's arrest report, then we will never know what happened with Joseph in Springfield, Massachusetts in 1984.

"They're playing a game and they're not being truthful. They're lying now like they were lying back then," he said, referring to when an INS agent in 2002 told him that his bank robbery conviction meant his citizenship was being revoked.    

ICE agents arrested Joseph at the Infopass appointment.  But the arrest report claimed he was arrested at his residence.

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101 W. Congress Parkway is the address for the Citizenship and Immigration Services, and also the detained immigration courts.

Joseph resides in Waukegan, not a federal building.  The ICE officers who arrested him knew this; they had his driver's license.  And they knew this from his wife, who thought she was just dropping him off for a little administrative appointment, and was out doing a little shopping in the Loop.

Another problem is that the summary of the ICE arrest reports states that Joseph had not filed a petition for his naturalization, even though he claimed otherwise and was in line to follow up on that.

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Joseph told the agents he had been sworn in as a US citizen in 1984, implying he had petitioned for this at that time.  And the only reason he didn't file a petition on September 9, 2014 is that ICE arrested him.

Of course it is possible Joseph is confused or himself obfuscating.  But why not point this out, rather than obscure the true location of his arrest and the underlying events surrounding it?  And, after he's locked up, why prevent him from filing an N-600 form?

In immigration court last week, when Joseph over the televideo from McHenry County Jail expressed concerns about the false statements and his wife, present in the court, showed adjudicator Fujimoto the entire print-out from ICE's system records, the ICE trial attorneys responded in an accusatory tone, "Where'd you get that?!" implying that by procuring his own records he had violated a government secrecy act.

It is troubling that the ICE attorneys and the adjudicator paid zero attention to the clearly false information in their own records.  At the end of the day, the records Joseph has produced are consistent with his claims of US citizenship and the ICE records are evidence of obstruction of justice.  (18 USC 1519: "Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.")

Joseph Needs a Lawyer
Joseph wrote a very clear narrative of events that he submitted to adjudicator Fujimoto, along with the 2012 E-verify printout, but he, his wife, and also the student observer Hayley Hopkins, were shaken by Fujimoto's indifference and the government's double-standards. "They only respect a lawyer," Joseph told me.  Hayley reported that Andre and his wife said that the I-213 summary "showed evidence of misrepresentation," but that instead of taking it seriously, the government attorneys were "skeptical of how they got this, and asked, 'How were you able to obtain ICE documents?'"

 These events are just a piece of the larger problem with deportation proceedings today.  If either President Obama or Congress really care about the rule of law, then they should stop arguing about prosecutorial discretion and put ICE on ICE and stop deportations until everyone has an assigned attorney and there are regulations for detention centers, absent which people are agreeing to being deported to effectively escape conditions of torture.

I am not claiming that most people in deportation proceedings have secured the proper permissions to remain in the United States or have not violated laws consistent with the government's prerogative to deport them.  I am claiming that virtually all proceedings reveal the government to be breaking laws that are much more important to public safety than the ones those in their custody are accused of violating.

Coda
Finally, we should all be praying over Franz Kafka's grave, his body surely tossing like mad by now.  His name frequently appears in federal court decisions responsive to BIA and IJ orders,mostly because of their failures of logic and legal inventiveness -- my favorite is the BIA precedent based on an invented portion of the Mexican Constitution.  In the event, the specific problem Kafka highlights is the blurring of private and public behaviors in spaces that are putatively governmental. On the one hand, the citizen goes before the law expecting from the court fairness and knowledge of the law, and then is frustrated by officials who are much less orderly and civic minded than their supplicants, which Kafka dramatizes by the family and dining scenes inside the court building.  

All this is weirdly brought to life by the recent published and leaked reports by the DOJ OIG and DHS OIG, respectively.  The image of our immigration and deportation business being treated with all the graveman of the family chores is, alas, the horror Joseph now confronts.

ICE Agents Deported Chicago Residents Without Criminal Histories Based on Unsubstantiated Claims of Gang Membership

Federal agents deployed through a special "Gang Surge Operation" have been arresting and deporting people based solely on unreviewed allegations of alienage and gang membership, including juveniles.  Moreover, according to the Chicago data, none of the program's key objectives are being met, an outcome ignored by the agent who reviewed this and indicated satisfaction that U.S. residents merely accused of gang membership and minor crimes were being deported with neither criminal nor immigration hearings.

In 2011 the Department of Homeland Security's (DHS)  Office of Inspector General (OIG) issued a report evaluating how effectively Immigration and Customs Enforcement's (ICE) Enforcement and Removal Operations (ERO) was identifying so-called criminal aliens and ensuring their deportation.  The report was focused on identifying false negatives, that is, whether immigrants with criminal records were not being flagged for deportation.  In reviewing agency actions, the OIG described a program that appeared to be deporting people who had no actual criminal record, if they were "alleged gang members."

Concerned about the due process violations this might occasion, I submitted a request under the Freedom of Information Act for the OIG to release to me the files of the Gang Surge Operation they reviewed.  They did not release these but they did release some spreadsheets and analysis.

The FOIA response I received reveals that ICE was plucking people off the streets of Chicago who had no criminal history, asserting they were breaking laws that should land them in state courts and jails, and then, instead of turning them over to state or local authorities, throwing them out of the country using Stipulated Removal Orders.  Also, most of the alleged violations were inconsistent with the high falutin' mission of attacking dangerous transnational cartels trafficking drugs and weapons, but were for relatively benign events, like "defacing private property," (graffiti) or possessing small amounts of marijuana.

Here is the first part of the record from the screen shot above, the first two columns blacked out are the person's first and last names.  The column with the word "none" is for the codes of previous arrests from the NCIC database.

That is, instead of the police arresting people and then, after they have been convicted and served their sentences, turning them over to ICE, ICE was arresting people, including juveniles, and then deporting them based purely on allegations of crimes and gang membership and without any administrative or judicial review.

Moreover, although a main concern of the OIG research was to learn whether people being released on their own recognizance were committing crimes and not showing up for their hearings, 25 of the 27 who were deported through STIPs had no prior orders of removal.  This was their first time in ICE custody.  The agent reviewing this data:  1) describes a policy to deport alleged gang members who have never been convicted of a crime; ("..discussed that unless there is a conviction, subjects are often released," in other words, discussed the presumption of innocence and how Gang Surge Operation could supersede this;  2) grossly mischaracterizes the program success by collapsing the number of individuals whose records required mandatory detention with those who signed Stipulated Removal orders, thus misleadingly suggesting ICE was deporting recidivist gang members, and overlooking the extent to which ICE was deporting non-criminals without hearings; 3) recommends OIG should no longer review whether those arrested through Gang Surge Operation have records consistent with mandatory detention.  

The analyst writes: "I found that 33 case files indicated that the individual was subject to mandatory detention and 14 files indicated that the custody decision was discretionary."  But then later the analyst states, correctly, "Of these files, 33 were instances where detention was mandatory due to criminal history or that the individual had signed a stipulated removal..." (emphasis added). The more accurate breakdown is that only 7 of the individuals required mandatory detention and 40 did not, among whom 25 nonetheless signed stipulated orders of removal and were deported and another signed a stipulated order of removal and then an immigration judge released him or her.

From OIG Report Referencing Gang Surge Operation (pp. 11-12): 

ICE’s Office of Investigations arrested 1,785 gang members and associates, criminals, and other aliens during its 2009 Gang Surge Operation. The operation was part of the larger, nationwide Operation Community Shield, which targeted transnational street gangs involved in human smuggling and trafficking, narcotics smuggling and distribution, weapons smuggling and arms trafficking, and other crimes. According to ICE’s Office of Investigations, violent transnational criminal street gangs represent a threat to public safety in neighborhoods across the United States. ICE’s Office of Investigations generally recommends that ERO detain gang members to protect the public.

We reviewed 52 gang member arrests during the Gang Surge Operation in 2009. Upon arrest, ICE turned the alien gang members over to ERO custody for removal. For each case, we determined whether ERO overturned ICE’s initial custody recommendations and released the aliens. Of the 52 arrests, 47 (90%) aliens were subject to mandatory detention or ICE detained them because they posed a danger to the public. ICE’s Office of Investigations recommended that ERO release three (6%) aliens because they were juveniles (two) or participating in an ongoing ICE investigation (one). The remaining two (4%) aliens were incarcerated in federalprisons or local jails. We did not identify cases where ERO overturned ICE’s initial custody recommendations. However, we determined that immigration judges later released six of the aliens from detention, and ERO released one into an ATD program.

If you know a little bit about how ICE agents really work, i.e., their own self-acknowledged "ruse operations" in which they impersonate everyone from insurance agents to Mormon missionaries, how they stake out church parking lots where Latinos go and write down license plate numbers, or hire local off-duty sheriffs to use their local law enforcement vehicles to pull people over for pretextual traffic stops and then hand them over to ICE, then this sounds lots of alarms.

The language of a "threat to the community" based on alleged gang membership alone and not criminal convictions is a huge red flag for potential ICE abuses.  (The doctrine of pre-emption is not just a problem in international law.)  I wondered, who exactly are these people ICE is arresting under its Gang Surge Operation and how can they be deported if they don't have any criminal records? And then I filed a FOIA request.

In late October I received a reply.  By coincidence the sample of the nationwide program OIG studied was based on the program in Chicago.  Here's what I learned:

FROM FOIA/PA No 2012-180:
-Among the 52 Chicago residents arrested through the Gang Surge Operation,  27 were deported on the basis of Stipulated Removal Orders (STIPs) -- meaning they signed a document in which they relinquished the right to an immigration hearing -- but only seven had been convicted of any crime, and none of the 27 were charged with the alleged violations supposedly triggering their ICE arrests.  

-Many of the individuals deported through the STIPs have traffic stops or other minor violations associated with their ICE arrests.  No legal status is provided, so it is unclear how many were legal residents, overstayed visas, or had entered without inspection.

In Gang Surge, ICE could, and apparently did, pick up people, including kids, told them to sign something, and shipped them out of the country, even if they had broken no laws.   (One entry says the individual has no criminal history and gives no reason at all for the arrest but lists the individual as a "Latin King.")  In two cases ICE released juveniles after their arrests--there is no information on how long they were held--but an additional two on the list of those who signed STIPS were arrested by ICE supposedly because of "possession of alcohol by a minor" and "possession of liquor by a minor."  One subsequently was "bonded out by an IJ" but the other was deported.

Again, the OIG evaluation focused on whether ICE was releasing criminals, and had no comment at all on these cases of juveniles signing stipulated removal orders.  Also, though one may be a minor and not a juvenile under state law for possession of alcohol, the definition of a juvenile in federal law, which governs deportation proceedings, is anyone under 21.

What is the definition of a federal juvenile delinquent? (top)

A juvenile is a person who has committed an act of delinquency, but has not attained his/her 21st birthday and is sentenced under the Juvenile Justice and Delinquency Prevention Act (JJDPA) (18 U.S.C. 5031 through 5042). In corrections, the term juvenile, juvenile offender, juvenile resident, student, and resident are used interchangeably and are considered synonymous. For more information, visit http://www.ojjdp.gov  (from the Federal Bureau of Prisons)

Most of this information I requested was not released to me and the material I received was highly redacted. I will be filing an appeal and will perhaps learn more about how this program was and is being run.

EOIR Fails to File Change of Its Own Chicago Address With Itself

The EOIR issued an official announcement on December 1, 2011 indicating a move on December 7. but it never bothered to change its own web page to reflect this.

DON'T GO HERE!!! (BELOW)

The above is a screen shot from the court listings on the Executive Office of Immigration Review web page for January 3, 2012, almost one month after the courts moved to...

CORRECT ADDRESS

Well, it's sort of the correct address. The EOIR announcement does not explain the complicated scheduling for the detained dockets. Most of these hearings will be moved to the Van Buren address but some individual hearings for the detained docket heard by Eliza Klein will continue to be held at the old address at 536 Clark Street, something that the EOIR has not publicized.

The point of pointing this out is not simply to provide accurate information to people doing google searches or to embarrass the EOIR, which has not updated its webpage since November, 2011, despite a federal regulation requiring the immediate posting of accurate agency information. In addition, it is to highlight how easy it is for people to disseminate inaccurate addresses without this being evidence of fraud or deceit. If a respondent does not file a change of address form within five days of moving, the result could be enforcement of a deportation order in absentia.

The fact that the federal government cannot maintain its own accurate address with itself suggests that deporting people who fail to do this is, well, a bit kooky.

Perhaps the EOIR told respondents where to show up? Maybe, but not according to the pro se respondents who appeared in the court hearings I attended today. They had run the 8+ long blocks from the old EOIR address in 20 degree weather, a fact that came out when the immigration judge asked a master calendar group to make sure to keep the court posted on any change of address. One guy said he received the notice about the hearing today but it had given a different address. When the IJ said the court had mailed out 17,000 announcements of their new location, the response from the five men was that they never received it and one asked what he should do in case the court moves again before his next hearing. (The IJ said she would make a note of the problem and was quite understanding of their plight.)

Also due to the move, the ICE attorney didn't have most of the files, repeatedly responding to inquiries from the IJ by stating that the office was in chaos. Not that the immigration attorneys were much better.

The IJ showed patience with the ICE attorney and the respondents' attorneys -- many of whom also were unprepared -- and simply pushed things back. (In one case it was because the attorney of record was in jail.) The calendar is so clogged up that cases were moved into late 2013 and even 2014, the delays perhaps not that different from ICE using its discretion to close the cases, a procedure that was not implemented once today, even though most of the respondents lacked any criminal records and many had entered legally and were pursuing adjustments of their status through Citizenship and Immigration Services.