CNN Covers Deportation of Luis Alberto Delgado, US Citizen

Those of you who read this blog will be familiar with the fact-pattern of Immigration and Customs Enforcement and the Border Patrol's deportation of Luis Alberto Delgado, a U.S. citizen. On Sunday, CNN's Don Lemon interviewed Mr. Delgado, his attorney Isais Torres, and myself about this event.

In re-reading the coverage in preparation I realized that Mr. Delgado was not the only U.S. citizen whose civil rights were violated, something I didn't mention on CNN but that bears notice. In addition, his brother, Eduardo Luis Pompa, who was driving, also was unlawfully arrested on the basis of racial profiling. The officer admitted that he used the pretext of driving without a license to arrest Mr. Delgado's brother who was then released after his U.S. citizenship was confirmed.

If a U.S. citizen is born in the United States, then the burden of proof is on the government to show otherwise, and the government requires reasonable grounds for suspicion before arresting someone as a non-citizen. Mr. Pompa, according to the Houston Chronicle's Susan Carroll, "released from jail after posting bail after jailers were told by federal officials that he is a U.S. citizen." (To read the story, written before Mr. Delgado was allowed back, go here.)

Of course most U.S. citizens caught driving without a license receive a ticket and their car is impounded, but here Capt. Joe R. Martinez, who pulled the car over because Mr. Delgado was not wearing a seat belt, appears to have been using a traffic offense as an excuse to hold people, just in case they might be deportable. This is precisely the sort of civil rights violation that the Department of Justice (DOJ) alleged in its brief against the State of Arizona and its efforts to use law enforcement to verify legal status.

The DOJ doesn't need to be worried about what may happen down the line but might want to consider filing federal civil rights suits against the localities where this is happening right now.

Deported New York City Resident Alleging Unlawful Detention Wins $145,000 Settlement From NYC, And So Can You!

photograph from tenth anniversary of NYU Immigrant Rights Clinic

A couple of weeks ago Cecil Harvey, a legal permanent resident for 36 years and a citizen of Barbados, received his check from the City of New York for $145,000, part of a settlement last May in response to his lawsuit claiming Rikers Island Jail illegally confined him for over a month because the jail staff thought Immigration and Customs Enforcement might want to deport him. [Correction 9/10/09: Mr. Harvey directed that $10,000 from the settlement be donated directly to the NYU Immigrant Rights Clinic, so his personal check was for $135,000.]

Especially inspiring about this lawsuit is that a detainee and immigration attorneys who are more used to playing defense than offense in the legal system prevailed. Their victory stands as an object lesson for thousands of other U.S. residents who are being illegally detained by law enforcement. Crucial here is that Mr. Harvey won these damages despite being deported as a criminal alien. In other words, the City of New York tacitly recognized that its guards cannot violate anyone's civil rights, even those of an alleged criminal alien. (Mr. Harvey, although presently in Barbados, does not concede the legality of his deportation.)

Under 8 CFR 287.7(d), jails are not allowed to hold someone awaiting transfer to ICE custody for more than 48 hours, not including weekends or holidays. But Rikers held Mr. Harvey for ICE 35 days in 2003 and in 2006 Rikers again held him for more than 48 hours. The jail's illegal deprivation of Mr. Harvey's liberty is, according to the complaint, part of a systemic practice in which the jail regularly ignores the immigration law and the due process rights of immigrants:

40. On information and belief, pursuant to this policy, NYC DOC frequently detains immigrants beyond the 48 hours authorized by 8 CFR 287.7(d)(3).

41. Mr. Harvey met other victims of this practice during the months he spent in ICE detention in 2007.

42. On information and belief, NYC DOC officials with final decision-making authority acquiesced in the decision to hold Mr. Harvey, with deliberate indifference toward. theresulting clear violation of his constitutional rights.

The text above is from the 18-page complaint filed on Mr. Harvey's behalf in October, 2008 by Alisa Wellek and Laura Trice, law school interns supervised by Professor Nancy Morawetz at New York University's Immigrant Rights Clinic.

The complaint contains many allegations that might trigger a lawsuit under 42 U.S.C §1983. (The statute allows people to sue those acting under color of law for violating their civil rights.) In this case, the underlying injury was the illegal and unconstitutional deprivation of Mr. Harvey's liberty, a serious example of government misconduct and in some cases felonious.

Keeping people locked up is supposed to hurt. That's the assumption of our current system of criminal incarceration. These harms may include the loss of employment, frayed family relations, and even medical complications from discontinued health treatments.

Mr. Harvey's unlawful detention resulted in all of the above. He knows he is not alone, and has called for "outlawing the conspiracy between between New York City and ICE."

Professor Peter Markowitz, who directs the Immigration Justice Clinic at the Benjamin Cardozo School of Law in New York City, characterized Mr. Harvey's experience as part of a larger pattern of illegal treatment of immigrant detainees in New York City custody – a pattern that has contributed to the unnecessary deportation of countless New Yorkers whose families are left behind.”

NATIONWIDE PROBLEM
Actually, this is happening around the country, including in the DeKalb County Jail in Georgia. For instance, Oscar, who was deported in June to Mexico, also seems like he has a strong case to sue for the violation of his liberty interests. In a fact pattern that holds for thousands of deported US residents, Oscar was picked up by the local police on a pretextual arrest, held for two weeks, unlawfully deprived of visitation by his wife, and then shipped off to Georgia and deported to Mexico, where I met him in late June.

Oscar, 25, originally entered without inspection nine years ago with his father when he was 16. He and his wife, Kimberly, a U.S. citizen, have three young children. Oscar, a contractor, has no criminal record, and if the DeKalb County Jail had released him after its 48 hour legal period for holding him for ICE had expired, then perhaps he could have obtained an attorney and figured out a way to remain in the country legally. (This was part of Harvey's allegation as well: the illegal detention impeded his ability to defend against the deportation.)

I spoke to Kimberly in July, on what turned out to be their wedding anniversary. She said, "He went to Court on Tuesday and the judge dropped all the charges. They wouldn’t let him out because ICE had a hold on him for 48 hours. When the 48 hours was up they put another hold on him. All they would tell me is that ICE had a hold on him. I would call back up there to see if they came and took him and they said they took another 48 hour hold on him. He was there for two weeks."

According to Professor Markowitz, there is no legal means for ICE to "renew" a hold, and yet jails routinely hold people for more than the 48 period legally allowed.

Linda, Kimberly's grandmother, isn't surprised, "That's the way the county is. They don't care. If they want to hold you for two weeks, they'll hold you for two weeks. This whole situation is terrible. The little girl is crying. They made the children here lose their father."

I tried calling Kimberly yesterday but her cell phone is turned off, presumably because she is unable to pay the bill. (She and Oscar both told me he was unable to reach her because without his income she couldn't afford the phone.)

DEPORTED US RESIDENTS CAN SUE, TAXPAYERS LOSE
The biggest disappointment for Mr. Harvey, indeed for any resident of a country whose government wrenches them from their homes and families because of fantasies about nations, was that he was ultimately shipped off to Barbados in 2007. His lawsuit states that the deportation itself was largely due to the impact of detention on his ability to prepare his case--he was stuck in an ICE facility in Alabama.

What does it mean that a guy who had been kidnapped and held incommunicado by a foreign government not only decided to fight for his ability to stay in that country, but also that the United States Constitution was meaningful enough that he could use it to sue the government that was breaking its own laws?

The good news, only possible because of Mr. Harvey's gutsy and inspiring use of the law to stand up to the government, is that New York City's attorneys acknowledged by their substantial settlement that Rikers Jail cannot break the law, even when the law is protecting a deported noncitizen and a criminal. This is an extremely important precedent that could potentially allow tens of thousands of other deported US residents to sue the places that illegally held them as well.

THE TAKEAWAY(S)
Alisa Wellek, one of the NYU law students who submitted the complaint, said, "One of the huge takeaways is that localities are subject to litigation. ICE isn't paying for it. New York City is paying for it." Her hope is that as the word gets out, local jails, including Rikers, will stop illegally holding people.

One thought for immigration attorneys and activists going to detention centers: download the lawsuit here and do it yourself! And don't be afraid to show some spine. According to one source familiar with the negotiations, the City's initial offer was $1,500. It's hard not to infer that the City attorneys wanted to avoid a lawsuit not only because of the damages but because of what would be revealed in discovery, when the jail and ICE would be subject to subpoenas. In light of the widespread illegal practices elsewhere, this motive may not be unique to New York City.

(The New York City Law Department did not respond to a request for comment.)

Another thought for the Department of Justice: start charging the law enforcement agents who are illegally holding people with false arrest and kidnapping. The law is clear about how long people can be held. When US Attorneys or state prosecutors do not file charges, it imposes an enormous hardship on the law-abiding taxpayers who must foot the bill. Not only is a criminal sanction the only real deterrent for the ICE agents and jail guards who are violating the rights of US residents--the City of New York is paying the settlement, not the wardens--it is the appropriate response to the outrageous and cavalier treatment of people the government is supposed to protect, not persecute.

Raleigh News and Observer Story on Mark Lyttle and the ICEcapades

Kristin Collins' article U.S. ignored evidence when it deported U.S. citizen to Mexico appeared in today's Raleigh News and Observer. It provides a succinct and revealing account of ICE mishaps leading to Mark Lyttle's deportation.

(Credit for today's post's headline goes to my friend Jamie; credit for the image goes to Serendipity.)

update 8/31/09: the original post was linked to the Charlotte Observer, but the story appeared first in Kristin Collins' own Raleigh News and Observer, as now linked above.

The Mexican-izing of Mark Lyttle: The First Steps in Deporting a US Citizen

8/21/09--click here for a slightly different version published today on Huffingtonpost.
________________________________________

Immigration and Customs Enforcement (ICE) has been deporting over a million people each year. Most are Mexican citizens residing here without legal status. But thousands of those being detained and even deported are US citizens.

This sounds unbelievable, and it should. ICE has no authority over US citizens. Nonetheless, a systematic examination of thousands of individual case files for detainees in southern Arizona between 2006 and 2008 revealed that just over one percent were deemed US citizens by an immigration judge.

Estimates are that an additional one percent of detainees are US citizens but either do not know this, or choose not to remain locked up for an indeterminate time with few due process rights and hence falsely confess to alienage and agree to be deported.

(This estimate is based on reports from criminal attorneys contacted to file habeas briefs, as well as pro bono immigration attorneys and attorneys who work on federal contracts for Legal Orientation Programs servicing detention centers.)

Mark Lyttle, 32, a US citizen born in Salisbury, North Carolina can attest to all of this. He knows what it's like to be kicked out of his own country and, among other things, have to pretend to be Cuban in Honduras to avoid being put in a US prison for false impersonation of a US citizen, a charge lodged against Mark by Customs and Border Patrol at the Hidalgo border just after Christmas when he tried to return home.

Right, this makes no sense, and it is unbelievable.

LEGAL INSANITY
Last week I received Mark's "alien file" maintained by the Department of Homeland Security. It includes a significant paper trail, or rather, copies of the legal paper chain that pulled Mark into statelessness.

Today I want to focus on the first tiny, ridiculously important event that led to Mark's four month journey through five countries in Latin America. In upcoming posts I’ll review additional documents.

SCAAP at Neuse Correctional Institution
North Carolina is one of the numerous states participating in the State Criminal Alien Apprehension Program. (For more posts on this, start here.) This means prisons screen for aliens or possible aliens and report them to ICE. The ICE agent then comes to the prison, in this case the Neuse Correctional Institution in Goldsboro, North Carolina, and interviews the inmate to determine if the person's legal status as well as criminal record warrant deportation.

On August 27, 2008, according to a Neuse employee, "five or six ladies who do the admin intakes" would have been typing into the North Carolina Offender database vital statistics for the approximately 60 inmates they were screening that day.

For Mark this meant a record stating:

Race: OTHER
Complexion: MEDIUM
Ethnicity: ORIENTAL
Place of Birth: MEXICO

Mark says he remembers the interview. The woman told him he had brown skin, so maybe he was from Mexico. Or maybe he was "Oriental," whatever that means. She was going to alert ICE to follow up. (Perhaps she did this by typing “Mexico” as Mark’s place of birth? I guess Mark was lucky: she could have typed "China" -- of course Mark has no relatives from Asia, either.)

The Neuse officer describing these procedures said the prison’s job is alerting ICE to possible alienage but not making a final determination. After all, immigration status is the province of federal immigration agencies, not state prison employees. Upon learning that ICE issued an administrative removal order for someone Neuse had incorrrectly characterized as born in Mexico, the officer said, “I don't understand how ICE did this. They're the ones who are supposed to check this.”

On September 2, 2008, Mark signed an affadavit stating that his name was Jose Thomas and he was born in Mexico. The document’s information is handwritten by ICE agent D. Faucette.

“Jose Thomas”-s mother is named as Jennie Lyttle (his mother’s name is Jeanne) and his father is named as Thomas Lyttle – deceased.

The man who was swearing that his name was Jose Thomas and he was born in Mexico signed the statement: “Mark Lyttle.” Mark does not speak a word of Spanish.

This was the solitary legal document attesting to Mark’s alienage on which ICE relied when on September 5 a deportation officer issued Mark’s “Final Administrative Removal Order.” This document is authorized by 238b of the Immigrant and Nationality Act and deprives aliens and US citizens alike of the right to a hearing before an immigration judge.

At the time this order was issued, ICE also had Mark’s FBI record designating his citizenship as “UNTD STATES AMERICA.” And ICE had Mark’s social security number. The false information that might justify removal was construed as factual and the accurate information indicating US citizenship was ignored. So was the information about Mark’s long history of mental illness.

WHAT HAPPENED DURING THE INTERVIEW WITH AGENT D. FAUCETTE
When Mark returned to the United States he was detained by ICE in the Atlanta airport and interviewed on April 22. This is from an ICE transcript of that interview:

Q. Do you remember why you were ordered removed in December 2008?
A. I talked to an ICE officer and I asked her how Mexico was and to put me over there just to see how it was. She made up some kind of paperwork to make it look like I was from there.
Q. Did you ever tell the ICE officer you were from Mexico?
A. I never told her that.

Mark has a history of mental illness, which also was indicated in the criminal records ICE possessed. Indeed on December 17, 2008, an ICE health inspector evaluating Mark just before he was put on a plane to Mexico wrote:


According to WebMD, Bipolar I disorder is a “form of mental illness. A person affected by bipolar 1 disorder has had at least one manic episode in his or her life. A manic episode is a period of abnormally elevated mood, accompanied by abnormal behavior that disrupts life.”

Mark may have had a manic episode of wanderlust – one from which he tried to recover by signing a sworn statement on November 3, 2008 stating he was born in the United States and a US citizen.

ICE, however, maintained the delusion that the inconsistent and, frankly, goofy statement of Mark’s alienage was authentic and claimed that the more credible and easily verifiable evidence of his US citizenship was false.

When I told Mark’s attorney, Neil Rambana, that ICE had Mark’s FBI record indicating he was a US citizen, Rambana was furious, “That is the most dangerous precedent I have ever heard. Someone swept a whole heap of dust under a carpet because they didn’t want to do their job. These things are easily identifiable by those who have superior resources, but they failed to exercise an iota of effort.”

Commenting on the ICE documents I was reading verbatim from the FOIA-d files, Rambana said, “Everything you are reading is disgusting to me. You just read three different things that all came full circle and all tried to cover themselves by saying he acquiesced. So what if he acquiesced? They should have ascertained the truth; they needed to dot their I-s and cross their T-s. They had someone who looks the part, so they seem to have thought, ‘I'm just going to shuffle him through.’”

Mark is adopted, as are millions of other US citizens. Mark's biological father's name is as Mexican-sounding as Mark Lyttle; and of course someone in the US Embassy in Guatemala City contacted Jeanne Lyttle and was able to issue Mark a US passport based on the documents Jeanne faxed in less than 24 hours.

Rambana does not believe Mark's adoption ameliorates ICE's culpability: "This is the 21st century. People have all sorts of families. If we're not paying attention to the fact that this is a different age, when the nuclear family is not essential to someone's existence, then we are failing as a society."

ICE RESPONSE
According to ICE Public Affairs Officer Barbara Gonzalez, the agency believes that the decision by William Cassidy in Atlanta to deport Mark validated ICE's findings. Cassidy, like many so-called immigration judges, runs a kangaroo court. His actions on other occasions have provoked formal and informal complaints. And he has consistently ignored the instructions in the Immigration Judge Benchbook pertaining to the treatment of respondents who lack attorneys.

ICE has not indicated any concern about its agents deporting Mark. Gonzalez stated, “The review of the case shows that the officers executed a removal order issued by an immigration judge, so to my knowledge, there is no investigation into the matter.”

When ICE presents sworn statements by their agents affirming the factually inaccurate narrative of a mental patient, and ICE ignores government records and sworn statements from the same individual that are factually accurate, and thus compiles a record prompting a judge to deport a US citizen, ICE thinks it has done its job.

On July 6, 2009 I asked Gonzalez: “Is it ICE policy that a sworn statement to alienage be considered evidence of alienage and a sworn statement of US citizenship be disregarded? This is a fact pattern in many cases of US citizens being deported and I consider it a very important policy question.”

As of yesterday she was still working on a response. I will report this and other statements from ICE as I review the additional documents in Mark’s file. (If you want to be notified of new posts, just click on the RSS box on the far right side of the URL panel above.)

MARK’S RESPONSE
Mark is living in a group home in Virginia. We speak regularly. Mark’s comments a couple of months ago seem especially apt: “They’re supposed to be professional but they screwed up. The judge is going to look at it and say, ‘You knew all this and you still deported him? You’re crazy.’”

It's a Small World

Today I met Oscar in Reynosa, Mexico at a shelter for migrants, “Nuestra Señora de Guadalupe.” Oscar speaks fabulous English, which isn't surprising. He has been living in the United States since he was 16. His wife is a United States citizen and so are his three young children, Isabella (4), Ethan (3), and Matthew (1). He was just deported yesterday from the Stewart Detention Center even though he has extreme hardship and perhaps other grounds for remaining in the United States. Oscar is the primary source of income for his US citizen family, which has lost phone service since his arrest.

Why was Oscar deported despite a strong case for obtaining legal residence? Well, in addition to the inane laws that prevent movement across borders, the person who made sure even the bad laws were not being applied properly was in this case ... William Cassidy, the same Atlanta judge who deported a U.S. citizen who was born in North Carolina.

I know that Cassidy is not the only judge running a court where respondents do not find justice, and that it really is a coincidence that the folks I keep running into whose due process rights have been trampled on have recently found themselves in Cassidy's court room. (Just to be clear, the purpose of my visit to the shelter was not to find people wrongfully deported. Oscar and I started talking after he heard me asking questions about a U.S. citizen who lives in Georgia and spent some time there after he was illegally deported by the same judge who deported Oscar. Oscar mentioned he also lives in Georgia, or had lived there until yesterday.)

Or maybe not such a coincidence. Cassidy presides over the hearings of the detainees in the Stewart Detention Center in Lumpkin, Georgia. These are the folks who are most likely to have detention itself serve as coercion for them to agree to deportation, even if they may have sound legal grounds for remaining in the United States, as Oscar does.

Oscar has never been convicted of any crime. The only reason he was being deported was a) he did not have a social security card; and b) Cassidy set his bail at $10,000, far too much for his family to pay. Likewise, he was too poor to afford an attorney.

A $10,000 bond for someone with strong ties to the community, no criminal history, and a strong case for establishing legal residence is a miscarriage of justice.

Oscar, who was in detention since May 11, told me he met people who had been there six months before they even had a hearing, and he couldn't bear that.

I asked Oscar if Cassidy reviewed any possible defenses against deportation with him, as he was appearing pro se. Oscar said no, and added that Cassidy does not provide any opportunity for respondents to address him, "He only talks to you. You don't talk to him."

Once again, this is not what the rules require of immigration judges in cases with pro se respondents. The Immigration Judge Benchbook states:
12. Relief from removal and deportation

a. Examine the respondent to determine what remedies against deportation may be available for him or her
b. What is your age?
c. Are you legally married? If so, what is the citizenship status of your spouse? If your spouse is an American citizen or an immigrant, did he or she file visa petition on your behalf?

Oscar told me he was not asked any of these questions, only instructed on the consequences of his deportation.

The shelter only allows people to stay three days. Along with Oscar's wife and children, his father also lives in the United States and his mother is deceased. Tomorrow Oscar takes a bus to his grandmother's home in Guerrero, Mexico.

Oscar was showing me some of his legal documents and I noticed that on the other side he had made some gorgeous drawings. The one he is holding is of the bars that keep him locked away from his wife, Kimberly, whose name is represented by the K in the center.

UPDATE 6-26-09: I will write more about the circumstances of Oscar's detention after I learn more because it is possible that the police acted unlawfully.

U.S. Citizen Obtains His "Alien" File: Record of Government Misconduct

Today Mark Lyttle, 31, a U.S. citizen who was kidnapped and rendered stateless by numerous government agencies as part of his illegal deportation to Mexico, obtained a copy of his file from the Atlanta Immigration Court. (See Atlanta Immigration Court for background.)

Mark's file includes many of the documents from Immigration and Customs Enforcement (ICE) that resulted in his deportation. During our time together in the last couple of days Mark also shed new light on the ignorant, racist, bureaucrats who did this to him, as well as his experience abroad. He walked about 200 miles in El Salvador, drinking leftover sodas on the roadside because he remembered his brother in the army told him how important it was to stay hydrated.

Mark is very resourceful about certain things and much less so about others. He's also very open and thoughtful. It's been fun hanging out with him.

HIGHLIGHTS FROM MARK'S "ALIEN" FILE AND CONVERSATIONS
1) Mark thinks that his problems started at the Neuse (pronounced NOOSE) Correctional Institute in Goldsboro, North Carolina at the end of August, 2008,when he met with a social worker doing a standard intake diagnostic interview. Mark said, "She said, 'We're curious about the name 'José' because it's a Hispanic name." Mark said she had said something in the computer attributed this name to his father. Mark's adoptive father's name was Thomas Lyttle, now deceased, and Mark's biological father's name is equally Anglo-sounding and remote from "José."

Mark replied, "My name is Mark Daniel Lyttle. I don't have a Hispanic name." The social worker told him, "'We're going to check that out. We're going to contact Homeland Security.' I said, 'Go ahead. I'm going to contact my family so I can protect myself and make sure precautions are taken.'" He said he was puzzled because, "They had my social security number; that's the second time I was there. They didn't do that the first time I was there, five months prior."

(As far as I understand, Mark's criminal record, including the two violations Immigration Judge-For-Now William Cassidy, see previous posts, mentions in his deportation order, all stem from his time in mental institutions and halfway homes. His mother, Jeanne Lyttle, a health care professional, told me that the staff would secretly tell her that the employees would regularly provoke Mark and other patients. After the patients physically responded, the staff would press criminal charges.)

The social worker at Neuse asked Mark to sign a document. Mark refused and she said that his signature was not needed for the referral to ICE. Shortly after that he was interviewed by the ICE agent who told him his name was "Jose Thomas" (sic).

Mark's family had moved outside the state since he was incarcerated; he couldn't find them and they couldn't find him.

2) Mark's Notice to Appear was issued on November 5, 2008, two days after Mark had signed a sworn statement that he was a U.S. citizen. The Notice to Appear states, "you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." There is no evidence provided to substantiate the allegation, just the charge.

The form also states that he is deportable because of criminal convictions.

It was signed by Tracy Moten at the Stewart Detention Center in Lumpkin, GA, where Mark was held. Moten is a Supervisory Detention & Deportation Officer, and another form indicates she was the examining officer. Mark told everyone he met he was a U.S. citizen, so presumably that includes Moten.

3) A longer document, the "Record of Deportable/Inadmissible Alien" (I213) also was prepared on 11/5/08 and is the document referenced by Cassidy. This document states in capital letters:

"SUBJECT CLAIMS TO HAVE BEEN BORN IN THE UNITED STATES BUT DOES NOT POSSES [SIC] ANY DOCUMENTATION TO SUPPORT HIS CLAIM."

Mark did not have a passport and he did not bring his birth certificate with him to prison. Mark's family had moved since he had been incarcerated. He told everyone in ICE, as well as Cassidy, that his brothers were in the military and they could find them if they tried, a statement that was verified when the U.S. Embassy in Guatemala City located Mark's brother Tommy at Fort Campbell over four months later. It took them 45 minutes, Mark said.

The I213 also states: "Subject claimed during interview questioning that he has a bipolar mental illness condition."

According to ICE's own record, they had in custody a mentally ill individual who claimed to be born in the United States, and the only evidence they had to prove otherwise was a single coerced statement signed by Mark. This occurred in September, 2008, while he was being badgered by the ICE agent in Neuse -- as I reported earlier, Mark was given a statement indicating he was Jose Thomas and told he had to sign it. He signed it: "Mark Daniel Lyttle."

All of the documents in his record are signed either "Mark Lyttle" or "Mark Daniel Lyttle."

4) The I213, which Cassidy used for the deportation, is demonstrably inconsistent. It documents government employees' stupidity and reckless disregard for human dignity. It does not document Mark's alienage.

The author of this bizarre document is David Collado, an ICE Deportation Officer in Atlanta.

-Under Father's Name, Nationality, it says: "Nationality: MEXICO LYTTLE, Thomas" but of course Thomas Lyttle, Mark's adoptive father, was not born in Mexico AND the original document alleging Mark's alienage said his father's name was Jose Thomas.

-Under Mother's Name, Nationality, it says, "Nationality: MEXICO LYTTLE, Jennie." Mark's mother's name is Jeanne; she was born in Ireland; and the original document on which ICE had issued Mark's order of removal stated that Mark's mother's name was "Maria Thomas."

When Jeanne, Mark's mother, read this part of the document, she said, "I laughed. I didn't know I was born in Mexico."

-Under criminal record it says, "None Known" but it also says that his status when found was "IN INSTITUTION" and he was "encountered while incarcerated at Neuse."

-It uses the name "Mark Daniel Lyttle" but the sworn statement of the ICE agent in Neuse from September says his true name is "Jose Thomas" and "Mark Daniel Lyttle" is an alias.

MARK RETURNS TO THE SCENE OF CASSIDY'S CRIME
I was curious about this guy Cassidy who deported at least one U.S. citizen and who was spreading false rumors about Mark and others to his superiors in Washington and the immigration legal community, and so was Mark. We wanted to take a look at him and also see if Mark could identify the translator who could verify Mark's exchange with Cassidy that Cassidy has denied occurred. While we were waiting for Mark's record, I looked at the Atlanta court schedule. Cassidy's schedule was missing. The clerk told me, "He called in sick this morning."

Mark said, "Is the sickness fear? Where's the doctor's report?" Mark said this because the rules for obtaining a copy of an immigration file require advance notice of the Court as to the date on which one would be picking it up.

Mark's letter to Cynthia Long, the Atlanta Court administrator, stated he would be there with me on Monday, June 21, the same morning Cassidy called in sick.

If reporters want to follow up, other names of individuals involved with Marks' case are:

Steven [sp?] Fuller. On the hearing recording for December 9, 2009 Cassidy says, "The government is represented by Steven [sp?] Fuller."

Nicole F. Kelly, Assistant Chief Counsel, filed a "Motion to Rescind and Vacate Final Order" on April 24, 2008 after Mark returned to the U.S. and was arrested by ICE despite possessing a U.S. passport.

Jill Jensen, Assistant Chief Counsel filed "Motion to Terminate Proceedings" on behalf of the Department of Homeland Security on April 28, 2009 stating that "the NTA was improvidently issued."

Both of their motions exclude mention of evidence before Mark's deportation indicating Mark was a U.S. citizen and both motions exclude mention of blatant errors in the charging documents.

The DHS attorneys are in the same building that houses the immigration courts at 180 Spring Street SW.

Judge Sease, also at the Atlanta Immigration Court, used to be an ICE attorney and in that capacity was engaged in ex parte communications with Judge Cassidy about ten years ago that were the subject of a complaint against Cassidy, as noted in a comment on the post below.

Mark's attorney, Neil Rambana, filed a FOIA request for Mark's file and has not received a copy. He also tried to pick one up at the Atlanta Court several weeks ago -- this is noted in the file copy Mark obtained -- and was told the file was not there and they did not know where it was.

Judge Who Deports U.S. Citizen Has Heavy Finger on the Stop Button: Digital Audio Recording of Mark Lyttle's Hearing Has Long Gaps

On December 9, 2008 Immigration Judge-For-Now William Cassidy signed an order deporting Mark Lyttle to Mexico. Mark is a U.S. citizen who was born in the United States, in Salisbury, North Carolina, and who twice informed the judge of this fact. Mark does not speak a word of Spanish.

There are four actions Cassidy has undertaken that go far beyond a moment's poor judgment and that I believe disqualify him holding the title of immigration judge. I have left messages with various staff at the Atlanta Immigration Court requesting an interview with Cassidy and he has not replied, although he has been talking about details of Mark's case with attorneys who do not represent Mark in an effort to gain their sympathy. I believe Cassidy is not talking to me because he knows I cannot be manipulated by him, and not because he is averse to speaking about his hearings to third parties.

1) By Cassidy's own admission, conveyed by colleagues reporting on their conversations with him, Cassidy was aware that Mark was diagnosed as bipolar and that Mark had signed a sworn statement indicating he was born in the United States.

A nationally prominent immigration attorney who deals with Cassidy regularly, and was attempting to excuse Cassidy's actions, sent the following message to a listserve of other immigration attorneys:

I have talked to Cassidy about this case ... The I-213, is written up and says that he and his parents are all born in Mexico, notes he claims to be bipolar, and then notes that he says he was born in South Carolina [sic--Mark was born in North Carolina]."

The attorney then states, "There is nothing on the 4 minute tape in which Little says: "Hey, stop, I am a US Citizen."

The attorney is referring to a portion of a Digital Audio Recording (DAR) produced by immigration judges as an official record of the hearing. The DARs are supposed to be inclusive of the entire hearing unless otherwise indicated. According to the Immigration Court Practice Manual:

The entire hearing is recorded except for those occasions when the Immigration Judge authorizes an off-the-record discussion. On those occasions, the results of the off- the-record discussion are summarized by the Immigration Judge on the record. The Immigration Judge asks the parties if the summary is true and complete, and the parties are given the opportunity to add to or amend the summary, as appropriate. Parties should request such a summary from the Immigration Judge, if the Immigration Judge does not offer one.

According to the 15 minute DAR for the hearing sent to Mark's attorney, Neil Rambana, there is no discussion at all of Mark's U.S. citizenship status. This is damning for Cassidy for two reasons.

THE DOG THAT DIDN'T BARK
The immigration judge benchbook contains extensive instructions for how immigration judges should engage respondents who do not have legal counsel and who have possible citizenship defenses. These include a series of questions that the judge supposed to ask the respondent about his parents, his place of birth, age, and an instruction that those who may be U.S. citizens should be given N600 forms so they may apply for a certificate of U.S. citizenship. Crucially, the judge is instructed to affirmatively explore possible defenses against deportation with pro se respondents: "Examine the respondent to determine what remedies against deportation may be available for him or her."

In short, the DAR silence on Mark's U.S. citizenship status, in light of Cassidy's alleged concession that he understood Mark had submitted a sworn statement that he was born in the United States, means that the DAR demonstrates Cassidy's failure to fulfill his professional responsibilities. Cassidy's own statements to his colleagues suggests that the DAR should have included an extensive exchange between Cassidy and Mark regarding Mark's U.S. citizenship, not silence on this matter.

I'm also not sure how anyone would find a statement that a respondent claims to be bipolar is grounds for supporting a deportation order, and not ordering a psychiatric evaluation and further inquiry into Mark's mental competence regarding his other statements.

In addition, the DAR reveals several other inconsistencies between how Cassidy ran the Master Calendar hearing on December 9, 2008 and how judges who follow the rules run their hearings. These range from him not naming the translator to improperly turning on and off the recording device without summarizing the events "off the record" to reading instructions to the respondents in a voice that is too fast to be properly understood in English, and without allowing time for the translator to translate. You can go through the Master Calendar immigration judge benchbook checklist and compare that with the DAR and most of what's supposed to be there is missing, including the individual interviews with the respondents.


2) The DAR was made in a manner entirely inconsistent with the EOIR rules. It is not a complete record and its omissions are not properly noted. This is evident from the DAR itself. There is at least one point at which it quite obviously goes off and on and picks up in an entirely new sentence with no note made of the stoppage. Moreover, at 15 minutes for 30 respondents, it is far too short to be a complete record.

According to a court watcher who has attended Cassidy's court, this is par for the course: "He does not say whether he's recording or not recording. I know Judge Sease says, 'This is off the record,' and then turns it back it on." The court watcher said it was impossible to tell from watching when the recorder was off or on. Another court watcher told me that Cassidy will say something is off the record but only when he physically leaves the room during a conference between an attorney (who is in the courtroom in Atlanta) and the client (at the Stewart Detention Center). This court watcher did not recall other occasions in which the judge said events were on and off the record.

A hearing for 30 people is going to take much longer than 15 minutes. Either the DAR that was sent to Mark's attorney, Neil Rambana, was not the entire DAR, or, Cassidy only recorded the formal portions at the hearing's beginning roll call and the final formal orders at the end. Both possibilities call into question Cassidy's account of the events that day.

3) Cassidy made statements to the Atlanta immigration legal community and to his superiors at the EOIR about the events in the courtroom the day he deported Mark that are flatly contradicted by Mark and for which Mark produced contemporaneous documentary evidence that supports Mark's account. (The manner in which Cassidy made these statements to his superiors is something I still am not at liberty to reveal, but that will change shortly; at that point I look forward to posting on the evil of banality.)

According to Mark, he told Cassidy he was a U.S. citizen not once, but twice. Mark said that after their names were read, Cassidy interviewed each of the respondents. I asked him how long the exchanges took and he said it depended on whether the respondent was challenging the deportation. None of these exchanges are on the DAR, including TWO in which the respondents had defenses of U.S. citizenship. Mark said,
"One guy was detained for a very long time. I heard his lawyer. She was finding out how long he was detained and Cassidy said, 'Send me whatever you have.' They were basically trying to get him out. They had too many American documents that he was a U.S. citizen." Mark thought this respondent had been in detention for more than two years.

He also told me about another U.S. citizen, "a guy with dreds from Jamaica. He spoke a lot of English." Mark said that ICE lost his paperwork and they had to release him, "He was American."

When it was Mark's turn he felt discouraged and intimidated and in his first statement told Cassidy, "I'm an American. I was born and raised here, but you can deport me if you like." Mark said there were two groups--those who were appealing and those who had agreed to be deported, and that Mark initially agreed to be in the latter group.

However, as he was listening to people talk and the hearing progressed, Mark changed his mind and told a guard he had something else to say, "I need to speak to the judge." The guard told him to wait until everybody was done.

I asked for more details on how the guard did this and Mark said there was a "very low door" and that "the guard had to go up to the judge on the TV, and he said I had another comment to make." That's when Mark told Cassidy the narrative about his U.S. citizenship I reported on previous occasions. Mark said that Cassidy told him he had to "go by the statement of a sworn ICE agent." Mark asked to see a copy of what the judge was examining and was upset that this did not occur.

Mark had never been in an immigration court before the day he met Cassidy and would be incapable of inventing the detailed narrative he gave me; also, as opposed to Cassidy, Mark has no incentive to lie since ICE had noted Mark's claims to U.S. citizenship and some government agency, be it ICE, the prison, Stewart, and the immigration judge, was responsible for investigating their validity, even if Mark didn't say a word that day.

Finally, Mark filed written grievances on ICE forms against Cassidy at the time of the deportation order and in the subsequent days before he was sent to Mexico, because Cassidy never sent Mark the paperwork he promised he would. These grievances should be at the Stewart Detention Center and hopefully Mark and his attorneys will obtain them and this will further substantiate his narrative.

4) Well there is a number four and it's a doozy, so stay tuned. Hopefully by the time that is resolved Cassidy will be profusely apologizing to Mark and the immigration law community in Atlanta.


WHAT DOES EOIR HAVE TO SAY ABOUT THE JUDGE WHO DEPORTED A MAN WHO WAS BORN IN NORTH CAROLINA?

EOIR Counsel for Legislative and Public Affairs Fatimah Mateen told me Monday that "someone" whose name she could not recall decided EOIR could not comment on Lyttle's case and that she would consult her notes in order to tell me who this was; she never did tell me this, but I learned today that "someone" was in fact Mateen herself.

EOIR's Mateen's obfuscation on this and other matters is a funny echo chamber of Cassidy's own efforts to avoid transparency, accountability, and to shift responsibility elsewhere. Agency staff lead by example and the EOIR Counsel has set a tone Cassidy and others seem happy to follow.

DOJ Public Affairs Officer Charles Miller, who is obtaining his information from Mateen and EOIR's Public Affairs Officer Elaine Komis, told me that they were not commenting on Cassidy's conduct because of "privacy concerns" for Mark Lyttle, which of course makes no sense.

One needs to have no information whatsoever about Mark to be instructed on whether the EOIR believes that Cassidy recorded the hearing properly, was being disciplined for deporting a U.S. citizen, or to learn the extent of complaints against immigration judges for not recording their hearings-- all of which were questions on which Miller at the DOJ, at the behest of Mateen, would not comment.

UPDATE JUNE 16, 2009: Please see comment submitted by reader on previous misconduct by Cassidy.

Houston ICE Attorney Calls Due Process for U.S. Citizen "Idiotic" - Seeks Reinstatement of Removal of Texas Mother

[5/13/09: Cerna's relatives just located her parents' marriage certificate at a town hall in Nuevo Laredo, MX; this helps prove her U.S. citizenship. Meanwhile, Cerna is threatened with detention at any moment.]
The Immigration and Customs Enforcement agency (ICE) owes another apology to a probable U.S. citizen, Julia Cerna, 42, whose due process rights and physical security ICE Assistant Chief Counsel Tracy Hamby jeopardized Wednesday, May 6, 2009 in a Houston immigration court.

ICE in Washington, D.C. had been working with Cerna to protect her from ICE custody as she was documenting her claim to U.S. citizenship, but Hamby apparently found this offensive and made an end-run around Cerna's Constitutional rights and the interests of justice.

Here's an excerpt from a message Cerna's immigration attorney in Houston, Amy Tehauno, sent Thursday morning to an ICE public affairs spokesperson and copied to me, describing the events in the immigration court Wednesday:

At the first Master Calendar hearing in Houston before Judge Clarease Rankin-Yates yesterday, ICE Assistant Chief Counsel Mr. Tracy Hamby appeared for the government. He immediately moved to terminate the proceedings, which was unopposed by the Respondent as we believed that it was appropriate to permit Mrs. Cerna to apply for her Certificate of Citizenship and U.S. passport administratively/affirmatively. Mr. Hamby's words were something to the effect that the Immigration Court was an inappropriate forum to make a citizenship claim, a statement with which I agree.

However, Mr. Hamby then indicated that he intends to send the file to Detention and Removal to act on the old expedited removal/order reinstatement, and recommended that we file the N-600 [application for a Certificate of Citizenship] as soon as possible so that it will be on file when, presumably, my client is detained again.

I believe that the exact description Mr. Hamby gave in court of the actions of ICE in attempting to accord Mrs. Cerna all due process of law in presenting her U.S. citizenship as a defense to removal (an opportunity that she was not previously afforded) was "idiotic." Mr. Hamby did not consult with his office in moving to terminate and taking on this decision.

Hamby did not reply to two voice mail messages requesting comment on this incident in immigration court, part of a public hearing.

Hamby understood that an ICE trial attorney and immigration judge in Oakdale, Louisiana had allowed Cerna to be released on $5,000 bail while she was tracking down the documents for proving her U.S. citizenship and thought this idiotic. Exercising legal discretion over a possibly unlawful action -- ICE arrest or deportation of a U.S. citizen -- Hamby terminated the hearing only to reinstate an earlier expedited removal order issued in 2000 by a border officer (not a judge), issued when Cerna did not know her father's birth in Alice, Texas established grounds for her being a U.S. citizen and signed a statement that she was not a U.S. citizen. ICE interview notes also indicate she stated her father was born in Alice, Texas. The agent should have informed Cerna of this being grounds for investigating a claim to U.S. citizenship.

Before Cerna has an opportunity to document her citizenship, Hamby is authorizing ICE to come to her home, arrest her, and stick her back into a detention center. (Tehauno explained that they have a number of documents but need time for further research of records from the 1940s to 1960s before submitting the application.)

Cerna is fortunate because Tehauno has enlisted the support of a graduate student in history to find the necessary documents, but Tehauno is concerned more generally about acquired and derived citizenship cases for U.S. citizens who are poor and do not have access to an attorney or investigator.

BACKGROUND
Julia Cerna, 42, is raising two teenage sons in Magnolia, Texas, a suburb of Houston where she's lived for 20 years. She also has two daughters, in their twenties, one of whom had to take charge of the household while her mother was in detention last year. According to Tehauno, who is representing Cerna for a low fee to be paid after the bail is returned, Cerna has no criminal convictions. The only reason she is about to be deported is that she lives in a country in which citizenship rules are complicated and ideas of what counts as "U.S.-American" racialized as White, so that sometimes people born U.S. citizens abroad do not know they are U.S. citizens.

For instance, someone called me yesterday who applied for a U.S. Certificate of Citizenship in 2007 only because he had a friend from Europe whose parent was born in the U.S. and was applying for a Certificate of Citizenship. Because the man who called yesterday was of Mexican descent and lives in a country where the political if not legal message is that real U.S. citizens can never be born in Mexico, it never even occurred to him that he was a U.S. citizen at birth.

Legally, however, U.S. citizenship is predicated on meeting the criteria for U.S. citizenship, not encyclopedic knowledge of citizenship laws that even trained border agents and ICE attorneys do not understand.

Out of frustration that her client who might well be a U.S. citizen was in ICE custody, Tehauno said she "pulled an email address for an ICE press person giving quotes to press saying 'We don't deport U.S. citizens. She [Ernestine Fobbs, ICE public affairs] was great. She called me within an hour and I explained the situation to her."

ICE sent two agents to interview Cerna in an Alabama prison. Cerna was transferred to Oakdale, Louisiana where an immigration judge bonded her out of detention for $5,000, changed the venue for the hearing to Houston, near Cerna's home, and the ICE trial attorney waived appeal. These decisions are a good indication that they believed Cerna had a viable claim to U.S. citizenship and did not want a U.S. citizen in an ICE detention center.

But then came yesterday's hearing. Tehauno concluded this morning's message to Ernestine Fobbs, ICE Public Affairs, as follows:

I truly appreciate your assistance, and the considered and thoughtful actions of ICE in Alabama and ICE Assistant Chief Counsel in Oakdale, Louisiana. All of the actions from your office and agency through yesterday indicated a genuine concern that our government take every precaution not to deport U.S. citizens, as continues to occur in cases such as that of Mark Lyttle. However, Mr. Hamby's intended course of action indicates a lack of consistency within the agency in that regard. We will not oppose a motion to reopen the proceedings before Judge Rankin-Yates, should ICE Assistant Chief Counsel in Houston prefer to handle this through the immigration courts. Thank you again for any assistance that you may be able to render.

Fobbs has not replied to Tehauno's email message about Hamby's action undermining the decisions of the immigration judge and ICE Assistant Chief Counsel in Oakdale, or to phone or email messages from me.

Tehauno said: "There should be onus on the government to make sure that people are not citizens of the country. Before they deport people and ruin their lives and lock them up in prison they should absolutely know they're not citizens." Tehauno was disturbed by the harsh and arbitrary consequences of the discretion given to ICE attorneys, "It's happening a lot and there's no one in the government accountable. There 's no coherent government program, and then a case lands on the desk of someone" who characterizes due process rights as idiotic. (Well, that last phrase is a loose paraphrase of what Tehauno said...)

Customs and Border Protection Destroys Birth Certificates of Mexican-American U.S.-born Teenage Boys

Here are descriptions of two previously unpublished accounts of U.S.-born Mexican-American teenagers who had their birth certificates ripped up by Customs and Border Patrol agents. I have information on other similar cases, but only time to write up the details of these two, along with summaries and links to two other recent cases published elsewhere.

Just to be clear, a national identity card doesn't solve these problems: in many cases of U.S. citizens deported ICE or Customs and Border Protection doesn't even check the digital files that have evidence matching the identity cards presented by the individual with the information in their databases-- as was the case at several points for Mark Lyttle. If no one bothers to check that a passport (or national identity card) matches the information in a law enforcement database-- as should happen when a U.S. citizen objects to having his proper identity disregarded by an agent or an immigration judge -- then having a national card does nothing and is no improvement over our current system.

Mexican-Americans with Birth Certificates Border Patrol Destroys or Ignores
Case 1. Mario, 17, was born in a Colorado hospital in the late 1980s and I've seen his birth certificate and hospital records.

Mario's mother is a U.S. citizen and his father Mexican. When Mario was a toddler his father and mother separated and Mario's father brought him to Mexico. His father's plan was to raise Mario, and then he would return to the United States. When Mario was 17 he decided it was time to "go back to the United States and claim his destiny," according to an individual familiar with this case. Mario had uncles in Tucson who visited Mario frequently in Mexico. He was especially interested in finding his mother. A birth certificate is a valid form of identification for entering the United States, and Mario thought he was all set. (Mario couldn't obtain a U.S. passport from Mexico because if you're 17 or under, that requires the presence of both legal parents.)

In early 2007, when Mario tried to return through Nogales, Arizona the Customs and Border Patrol agent, the attorney said, "tore it up on the spot. They told him, 'It's not real. Go away, kid, this is fraud.' There goes your Colorado birth certificate. Go away, have a nice day." Mario was upset and insisted he was a U.S. citizen. "They told him that if he says he's Mexican he can leave, but if he keeps saying he's a citizen he'll be detained at the Nogales border patrol station and arrested." He signed and returned to Mexico.

Because of worries about identity theft he was not able to send for another copy of his birth certificate. In May 2007, Mario decided to take his chances by crossing without inspection and was apprehended by the Nogales Border Patrol. He made a sworn statement that he's a U.S. citizen and is taken into detention for deportation proceedings, where he can make his case before a judge. Mario, the attorney said, "denied he was a Mexican alien, but they whipped this thing out," according to the attorney, and said, "You said you were a Mexican. Here's the proof. You were removed as a Mexican."

The Immigration Judge says the initial sworn statement of Mexican citizenship is sufficient to shift the burden onto Mario to prove he really is a U.S. citizen. Even granting the absurdity of a Mario's coerced statement being used against him, Mario met that burden. His file includes Medicaid records of his birth and infant care, a copy of the birth certificate, and the Colorado hospital records, including the Apgar test (taken one minute and five minutes after birth). The attorney continued, "The judge says, 'The records don't show he was born at the hospital. The records only show he was treated at the hospital." Oh, and Mario had obtained a childhood photo from his uncles in Tucson, from when they visited Mario in Mexico, in which Mario's about 8 and holding THE SAME BIRTH CERTIFICATE in his file. (The family had the photo enlarged and it's very clear.)

The attorney also pointed out that the entire proceeding was improper because ICE never conducted an initial interview or investigation of his claim to U.S. citizenship, as required by the deportation and removal regulations, but, the attorney said, "They didn't do that. They just NTA'd him." (A Notice to Appear is a charging document that requires an interview by an ICE agent.)

Mario signed the removal order and is going to try to obtain a passport or file for a from Mexico, but it's not going to be easy because a passport requires U.S. photo identification and other documents that someone in Mexico cannot obtain. Also, the form for filing for U.S. Certificates of Citizenship (N-600) states it is for people born abroad, the premise being that if you have a U.S. birth certificate that is proof of citizenship.

Case 2.
An attorney who works for a federal defender's office told me about Ricardo, 16, who was living in Phoenix and drove to Nogales so he could drink. (These events transpired roughly between 2002-2006.) On returning to the United States, Ricardo presented his Los Angeles County birth certificate and Arizona driver's license. The attorney said "The border patrol agent kept trying to get him to admit he was Mexican and it was a fake certificate: 'You're a punk, you're stupid, and I'm going to do you a favor,' and the border patrol rips up Ricardo's birth certificate." The agent tells Ricardo that he saved him from a charge of presenting false documents and says that if Ricardo doesn't sign a statement saying he's Mexican, then he's going to prison for a year. Ricardo signed."

I asked the attorney why Ricardo signed the false statement, although the absence of an attorney and being a minor are already grounds for concern. He replied, "Nobody believes you, and they browbeat you, 'Stop lying, you're just making it worse.'" Ricardo went to court but didn't say anything. I asked why he didn't explain his situation to the immigration judge and the attorney, who had watched a video tape of the hearing told me, "A lot of these judges don't listen to shit anybody says. This judge never even looked up from the paper." (Incidentally, Ricardo didn't miscalculate: Mark Lyttle told the judge he was U.S. citizen and was still deported.)

Ricardo, born in Los Angeles, was deported twice, each time signing a statement that he was a Mexican national. The attorney said, "It was the path of least resistance. The third time he was looking at six months to a year so he said, 'That's crazy. I'm a U.S.. citizen.' And they say, you're not a U.S. citizen, asshole, you've been deported a couple of times." That's when the attorney's brought in, to defend Ricardo against the charge of Illegal Re-entry. The attorney introduces Ricardo's birth certificate as evidence and the prosecutor moves to dismiss the charge, but then the attorney paraphrase the prosecutor's next statement, "Don't think I'm being a nice guy. He's still guilty of Illegal Entry, anyone entering without inspection." (Ricardo was found not guilty.)

Case 3.
The following is from an ACLU-Southern California Press Release, issued on October 29, 2008:

“If ever there was evidence of the fundamental flaws in our immigration system, it is the fact that a U.S. citizen was deported twice and denied entry into the United States on numerous occasions without any due process of law,” said Jennie Pasquarella, staff attorney for the ACLU/SC. “ICE officials repeatedly ignored his certified birth certificate, which they could easily have corroborated, and instead simply refused to believe him. It is inconceivable that this would have happened were he not Latino.”

Olivares was born in the Los Angeles area, and had never lived outside the United States until he was forced to live in Mexico after ICE deported him in 2007 and refused to allow him to re-enter. But his ordeal began in 2000, when border agents questioned the veracity of his birth certificate and whether it belonged to him when he was returning into the United States at the Tijuana border crossing. The agents refused to let him enter his own country. A week later, however, Olivares’ mother met him at the border crossing with a certified copy of his birth certificate, and Olivares and his mother re-entered the United States without incident.

In 2007, while Olivares was serving time in state prison, agents from the Department of Homeland Security approached him and told him he was a Mexican citizen and would be deported. Olivares insisted that he was a U.S. citizen, but eventually – not fully understanding his rights as an American citizen – he was coerced into signing papers that were never explained to him and was deported to Mexico.

He then attempted to cross back into the United States, but border guards refused to let him enter. He felt he had no choice other than to live for a time with his mother’s family in Jalisco. But in June 2008, upon learning that his father in Los Angeles was gravely ill, Olivares again tried to cross the border legally, presenting a certified copy of his birth certificate. After being rebuffed, he crossed illegally, but was picked up by the U.S. Border Patrol. On September 2, 2008, he was deported for a second time to Mexico, on the day his father died.

In September, Olivares – accompanied by his mother -- tried yet again to re-enter the United States legally from Tijuana. Once again, immigration officials rejected his birth certificate. However, this time he refused to sign his name to the papers foisted upon him and demanded to see a judge. As a result, ICE put Olivares in removal proceedings and detained him at the Otay Mesa Immigration Detention facility in San Diego. The family then contacted the Coalition for Human Immigrants’ Rights of Los Angeles, which in turn contacted the ACLU/SC. On October 9, ACLU/SC staff attorney Jennie Pasquarella advised ICE that it had no authority to detain Olivares because he was a U.S. citizen, and presented his birth certificate and other documentation demonstrating his citizenship. He was released later that day.

“There’s something fundamentally wrong with the system if border guards can effectively deprive you of your citizenship by simply disregarding a valid birth certificate,” said Pasquarella. “ICE officials obviously used race and ethnicity as a basis for enforcing our nation’s immigration laws, rather than taking a few minutes to verify Mr. Olivares’ legal status.”

Case 4.
In a detailed article by Sandra Hernanez appearing in the Los Angeles Daily Journal on December 31, 2008 Jose Ledesma, who estimates he was deported about 15 times despite presenting a U.S. birth certificate, says,

"I think the only reason I got out is immigration saw the newspaper stuff and didn't want to keep me in there after it was public," he said.
"I think I might have gotten out a lot faster if I'd had a lawyer," Ledesma said. "I know my rights, but in court you don't really understand all the legal stuff or they just don't believe you."

This does seem to be a pattern: when the media focus attention on cases ICE responds but absent that attention even attorneys have a problem receiving due process protections for their clients.

Another interesting point Ledesma mentions is that during his hearing before an immigration judge, when Ledesma brings up his claim to U.S. citizenship, the judge "turned off the tape recorder and began talking to the government attorney and then turned it back on and told me I had 15 days to provide facts to show I was a citizen."

So the immigration courts won't let people in (see earlier postings tagged EOIR) and immigration judges are having secret exchanges with the government attorneys?!

Wow.

How many cases of U.S. citizens deported or detained, how many outrageous illegal actions by ICE, Customs and Border Protection, and the immigration judges before we stop spending money on sending out people because of the accidents of borders and birth--and the inherent inability to get this stuff right in programs run by dumb Americans--and start spending that money on health care, education, transportation and other real needs? (Spending billions of dollars because of an unfounded anxiety that open borders cost money is as rational as buying a $1 billion safe to protect a dime store flag.)

The attorney who told me about Ricardo said, "This cat and mouse shit hurts people, it gets people killed, it teaches agents to treat people like animals." He described a chat site popular with border agents that refers to immigrants as "tonks." He asked a CPB agent what that meant and was told, "'That's the sound it make when you hit someone over the head with an aluminum flashlight. Aluminum's flexible and the hair covers the injury.' That's a culture created by a cat and mouse chase game. Who loses? In Tucson, I watch kids getting picked up at a downtown bus center by border patrol and hauled off, kids I doubt were illegal."

We know that border enforcement is systematically hurting people innocent by law and common sense; we know that it is costing billions of dollars; and we have no evidence that free movement harms rather than helps the overall economy. And we know that ending border restrictions will increase household and family stability.

Our country is in the grip of a profound borderline personality disorder. The psychotic effort to separate an idealized U.S.-American "good" citizen from the racialized "bad" Mexican is no different, legally, from the 1933 Nuremburg laws, where officials held similar debates about where to draw the arbirary line of Jewish/German ancestry to make sure that Germans wouldn't be deported. The Nazis had to decide on degrees of descent, not to punish Germans who happened to have a Jewish ... great-great grand parent, great-grandparent, grandparent, parent. How to know when one is wrongfully punishing good Germans and not appropriately deporting bad Jews? This particular Nazi legal question is exactly the same as the ones being asked every day in U.S. immigration courts. Are you a real U.S. natural-born citizen if you only have documents showing your father worked here 9 years after 1950? 10 years? If your mother was born in the United States but not your father? If your father's name does not appear on your birth certificate? If you don't have money for an attorney and private investigator to track down documents?

A sane people does not ask this question.

Fortunately, there are many people who are rational, compassionate adults and understand this. The nonprofit attorneys who spend their time in low-paying positions with impossible caseloads, the private immigration attorneys who take tricky pro bono cases, the government employees who are speaking up when they can, the journalists who take patience to describe complicated cases and not just shocking are doing amazing work and deserve as much attention as the trouble caused by our government. It is important to know about government mischief but it is a mistake, one I am guilty of, to be preoccupied by this to the exclusion of the good work done by so many, one for which I will be making amends here. Stay tuned...

Thanks to Dan Kowalski, Austin immigration attorney, for some useful information on the procedures and terminology.

---
Note on image: I realize people have a bad reaction to Nazi allusions. I'm not referring to death camps but the publicly announced deportations preceding 1941 using classifications for determining citizenship the same as the ones being used today. (U.S. foreign embassies on their web pages are suggesting applicants bring DNA samples!) The photo above is a German passport for a Jew issued in 1938, and is from a web page on Holocaust research for which I cannot vouch.

Obama's First 100 Days: "Not in Service" for Victims of ICE Kidnappings

In addition to the myriad of ICE abuses of power during the first 100 days of the Obama administration, the further insult is that the main number for the ICE Office of Professional Responsibility, the office charged with internal investigations to punish ICE agents, is literally "Not in Service," or so the recorded voice says for the number listed for the Office of the Director.

I tried calling this morning to find out if anyone was looking into a U.S. citizen forced to sign a false statement on a form filled in by an ICE agent as part of a plan to arrange his kidnapping to Mexico. The federal code, defines kidnapping as

"Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person, except in the case of a minor by the parent thereof, when—
(1) the person is willfully transported in interstate or foreign commerce, regardless of whether the person was alive when transported across a State boundary, or the offender travels in interstate or foreign commerce or uses the mail or any means, facility, or instrumentality of interstate or foreign commerce in committing or in furtherance of the commission of the offense;
(2) any such act against the person is done within the special maritime and territorial jurisdiction of the United States;
(3) any such act against the person is done within the special aircraft jurisdiction of the United States as defined in section 46501 of title 49;
...

Section 3 applies to what ICE did to Mark, as Mark was taken unlawfully in a plane from Raleigh to Atlanta and by another plane from Atlanta to Mexico, even though ICE had a sworn statement from him stating he was born in the United States. Just to be clear:

(2) “special aircraft jurisdiction of the United States” includes any of the following aircraft in flight:
(A) a civil aircraft of the United States.
(B) an aircraft of the armed forces of the United States.
(C) another aircraft in the United States.

The federal kidnapping statute continues:

(c) If two or more persons conspire to violate this section and one or more of such persons do any overt act to effect the object of the conspiracy, each shall be punished by imprisonment for any term of years or for life.
(d) Whoever attempts to violate subsection (a) shall be punished by imprisonment for not more than twenty years.

Section 1 also likely applies because the form that Mark was coerced into signing in North Carolina ended up in offices in Georgia. The statute contains other provisions, but the gist is that unlawfully seizing people and transporting them in planes is kidnapping, and there's no special clause that says ICE agents are immune. Mark was unlawfully seized and transported.

It's common sense to insist that the rule of law apply to government officials. Congresswoman Zoe Lofren, Chair of the House Subcommittee overseeing ICE, agrees. Andrew Becker wrote a terrific piece in Mother Jones last week on the deportation of U.S. citizens, and quoting Congresswoman Lofgren: "'There's no jurisdiction for the government to arrest or detain, or let alone deport, citizens. That's otherwise known as kidnapping.'"

MORE CHRONOLOGY
I spoke yesterday with ICE Spokesperson Barbara Gonzalez, who had a sketchy Executive Summary of ICE actions on Mark Lyttle. I asked her who prepared the summary and Gonzalez said she didn't know. I asked because conversations with various ICE agents indicate that there's a lot of folks trying to point the finger elsewhere, be it the prison, Raleigh, Atlanta, the immigration judge, and of course, they all want to blame Mark, the victim. I thought that whoever wrote this summary might have the narrative shaped by these concerns. It turns out that I was right. Today I received a different narrative.

Here's what Gonzalez told me yesterday, from a transcript of our conversation edited for relevance--nothing is added but tangential or confusing exchanges are not included:

BG: On Sept 2 2008 our ICE officers encountered Mr. Lyttle at Neuse Correctional Institute, Goldsboro, North Carolina.

JS: What does encounter mean?

BG: I would have to look into that. It could have been through the criminal alien program, where we identify individuals for removal.

BG: On November 5, 2008 ICE officers took a sworn statement where he stated he was a citizen of Mexico, that he illegally entered the U.S. without being inspected, and made no claim of U.S. citizenship. Subsequently ICE officers served Mr. Lyttle with a notice to appear.

JS: Can you tell me the date on the Notice to Appear and what it says.

BG: I don't have that information.

BG: On December 9, 2008 an immigration judge ordered Mr. Lyttle removed to Mexico. On December 21, 2008, ICE removed Mr. Lyttle to Mexico.

JS: Do you know where in Mexico he was taken?

BG: I don't know where. [Mark told me after I my conversation with Gonzalez that he and about a 100 other detainees were flown to Hidalgo in handcuffs and shackles; these were unlocked after they left the plane and they were told to walk across a bridge to Reynosa, Mexico.]

BG: On December 29, 2008 Customs and Border Patrol encountered Mr. Lyttle after he attempted to enter in Hidalgo, Texas They [pursued?] a process for expedited removal. On the same date he was removed to Mexico.

BG: On April 22, 2009, ICE encountered Mr. Lyttle after arriving from Guatemala City. Customs and Border Patrol determined he was previously removed and processed Mr. Lyttle for expedited removal. Subsequently he was placed in custody at the Atlanta pretrial detention center.

BG: On April 24, 2009, ICE interviewed Mr. Lyttle and obtained another sworn statement from him where he admitted providing false information regarding his citizenship.

JS: Do you know where he admitted this and if his lawyer [Neil Rambana] was present.

BG: I don't know where. He was in possession of a valid U.S. passport and subsequently released. On Friday, the DHS filed a motion with the court to rescind the order of removal.

JS: Do you know why ICE was calling Mark "José Thomas"?

BG: I have no information about José Thomas.

Here's what happened in our conversation today:

BG: On September 2 the day that Mr. Lyttle was encountered at the correctional institution by our criminal alien program officers ...

JS: Do you know why he was interviewed by ICE agents?

BG: Barbara Gonzalez does not know why [sic].

BG: I have a sworn statement taken on that day where the name you kept bringing up yesterday appears. Jose Thomas aka Mark Daniel Lyttle stated that he was a national of Mexico and that he was born in Mexico and that he entered the U.S. at age 3 and he wasn't sure where he entered the U.S. He stated he had never been arrested in Mexico but yes in the United States he had.

JS: Were these answers typed or hand-written.

BG: Hand written [She explained that it's a form and that it has lines indicating country of birth, e.g., and then it says in hand writing: "Mexico"]

JS: Do you know who filled in the form, was it Mark or the agent?

BG: I don't know.

JS: How is it signed?

BG: The signature says Mark Lyttle.

JS: Where does it say José Thomas?

BG: It's on the record of the sworn statement with the file number, José Thomas aka Mark Lyttle

BG: November 3, there's another record, a sworn statement with the same alien number and signed by Mr. Lyttle where he now says he's a U.S. citizen.

BG: A notice to appear is subsequently issued.

JS: What does it say?

BG: Matter of Mark Daniel Lyttle aka Jose Thomas, November 5th.

BG: There's a new sworn statement November 12, this one in the name of Mark Daniel Lyttle aka Jose Thomas. What is your true and correct name: Jose Thomas, any other names? Mark Lyttle, in what country are you a citizen? Mexico. Tthen it says mother and father's names. Father, Jose Thomas, mother Maria. Mother is living in Texas and father Mexico. Signed by Mark Lyttle

After I got off the phone with Gonzalez, I called Mark. He told me that the September 2 meeting Gonzalez describes is when the ICE agent told him they knew his name was José Thomas. I told him that Gonzalez said he signed a statement saying he was José Thomas and asked him why he did this. This is exactly what Mark told me:

I signed because I’m thinking to myself... She didn’t even let me read it. She didn’t even let me read the piece of paper. I asked her, 'Can I read this?' I didn’t get chance to read it. She said 'you’re waiving your rights, you’re from Mexico.'"

I asked Mark how he was feeling while he was having this conversation with the agent, whom he identified as an African-American woman:

"I felt very intimidated by her. I never knew about those people and it’s all up to them. I signed it because, I mean, I felt like I didn’t have a choice but to sign this paper."

In case the context is not sufficiently clear, Mark told me that the agent filled in the form, not him. Why did she do this? The answer may be interesting from a literary perspective but not a legal one. The agent decided that she wanted Mark out of the country, wrote a document that would accomplish this despite his verbal protests against this, and then forced him to sign it when she knew it would accomplish his forced removal from the country. Many other agents and agencies have responsibility for what Mark endured as well.

I told Mark that ICE is now acknowledging his sworn statement on November 3, 2008 stating that he is a U.S. citizen. Mark said, "If I signed a statement saying I was a United States citizen then why would you deport me?"

Great question! I'd really like to ask that of someone in the ICE Office of Professional Responsibility, if only they had their phone working, or the right number published on the website. 100 days and Obama can't get the watchdogs for the people who are deporting U.S. citizens to answer the phone?

I don't like letter grades, so consider this the written evaluation...

This is not just about Mark Lyttle. I know from talking to attorneys across the country and reading court cases of people like Mark arrested for illegal reentry that this fact pattern seems unique only because it's publicly examined here for the first time. I do not believe that when the ICE agent sat across the table from Mark in the Neuse Correctional Institute that this was the only time she filled in a form with false information and demanded a signature of an inmate. And I do not believe that this ICE agent is the only one who has done this. If only the ICE Office of Professional Responsibility had a working phone.

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Immigration Judge Controversy in Atlanta
There's more in the narrative that I'll get into later but right now I want to quickly address an esoteric debate initiated by some folks in the Atlanta immigration law community, about the role Judge William Cassidy played in deporting Mark Lyttle. (Thanks to Dan Kowalski for keeping me, and everyone else!, informed.)

I don't want to spend a lot of time on this now, but I do want to say to the folks who claim to have listened to the tape or who know someone who listened to the tape and did not see Mark speak up to the Judge, as he told me he did, the tape may not include all of the events that transpired.

Someone wrote:

"I have talked to Cassidy about this case. This guy's master was a "Mass" master, that is about 30 folks with no relief. There is nothing on the 4 minute tape in which Little [sic] says: "Hey, stop, I am a US Citizen." The I-213, is written up and says that he and his parents are all born in Mexico, notes he claims to be bipolar, and then notes that he says he was born in South Carolina [sic--North Carolina is where Mark was born]."

Wait a minute: this person is saying the judge has notes that a person diagnosed as bipolar and who says he's born in the United States is a respondent in his courtroom and then approves a deportation order for that person??? A crowded docket?

With apologies for the sarcasm, poor Judge Cassidy. Mark almost died from two diabetic seizures in Mexico, for which he was hospitalized, and one in an Honduran prison where he was sleeping in a large room with several other inmates on a cement floor, with no blankets or mattress, in a room that stank of urine because it was hard for the convicts with whom he shared the room to pee into the white PVC pipe that passed for a urinal, a place he found himself after the Mexican immigration authorities stuck him on a bus to Honduras and the Honduran immigration authorities locked him up because Judge Cassidy ... had 30 respondents in his courtroom? (When Mark's legs collapsed during his seizure in Honduras the guards laughed and taunted him before giving him some medicine. Mark told me that the "gangsters" had mattresses and blankets and had their girlfriends bring Mark bedding, but the guards "said it was a political thing, they hated Americans" and took his mattress away from him.)

If Judge Cassidy is overwhelmed, then why punish Mark and the other respondents? Why not simply terminate the proceedings for everyone in the court? If I'm having trouble finishing grading papers, I don't give everyone an F. If EOIR cannot handle its workload, then it needs to close shop, not rubber stamp U.S. citizens for a trip to Mexico. (Tucson reporter Claudine Lomonaco did a great story that aired yesterday on PRI's "The World" about problems with immigration court access.)

Even if Mark never said a word, I'm not sure what's so exculpatory for Judge Cassidy about this scenario.

Mark has been very specific and consistent about his exchange with Judge Cassidy, indeed about everything that has transpired. Maybe he really spoke with someone else, or maybe it was another time and place, but right now I believe what Mark says, which is that Judge Cassidy replied to Mark saying he was a U.S. citizen by saying he had to go by the paperwork he had, and when Mark asked him what the papers said, Judge Cassidy told him he would have a woman who sounds like she might have been from the Legal Orientation Program send Mark the paper he, Cassidy, was reading. Mark never received this.

I realize that people may have seen a tape, in which a judge is in one courtroom and respondents are in another and they're talking to video monitors and the respondent cannot inspect the paperwork in the judge's hand, but I think the jury's still out about whether the tape includes all the exchanges between the respondents and the immigration judge.

Mark Lyttle In Hiding From ICE

On Thursday, April 23, Neil Rambana informed me that another client of his, Mark Lyttle, was a U.S. citizen wrongfully identified as a noncitizen by an Immigration and Customs Enforcement (ICE) agent. (You can read about the first client, David, HERE, and Mark Lyttle HERE and you can read all the posts on Mark by clicking on Mark Lyttle.)

I spoke with Mark and his mother on Friday, April 24 and wrote about some of Mark's forced travel through Mexico, Honduras, Nicaragua and Guatemala after ICE removed him.

Here's what's happened in the meantime.

MARK STILL LISTED AS ALIEN IN DHS DATABASE
The DHS issued a press release Friday stating it was correcting its databases; as of this morning, not only was Mark still listed in the ICE database as Mexican, he also is listed as being in ICE custody in Atlanta.

ICE spokeswoman Barbara Gonzalez points out that the DHS never said when it would finish its updating. I asked her if there was a timeline that DHS had in mind when it issued this statement. She could not provide one. This leads me to conclude that when the DHS says it is updating its records, and there is no time line given, DHS is asserting that it cannot be held accountable for updating its records.

MARK'S CURRENT STATUS
Right now Mark is with his brothers Tommy and Brian at Fort Campbell, Tennessee. Mark wanted to stay with his brother, an army officer, because he was not comforted by his attorney's assurances that ICE would stop arresting him and wanted Tommy's protection. Looks like Mark was right. At this point if Mark were stopped and someone ran his name through a DHS database, it is likely he would be arrested.

After I told Mark's youngest brother, Brian, 25, also in the U.S. army, that Mark's name was in the ICE database as in detention in Atlanta, he said in disgust, "Government agencies operate with impunity. There's no ramifications for anything they do. We need to see this thing through. People need to lose their jobs. There needs to be some sort of restitution." Brian added that he'd also insisted that Mark get away from Atlanta. He'd heard that, "In Atlanta they can arrest you if you don't have ID on you. If you can't prove who you are, they can detain you." He said I should look into that to make sure, but that this is what he thought was going on. (This would be illegal, but so is deporting a U.S. citizen.)

ICE TRYING TO COVER UP MISCONDUCT
Meanwhile, I made some inquiries of ICE and North Carolina prison personnel to learn how Mark was put into deportation proceedings. What I learned is chilling. ICE is instructing its agents to put together information about Mark's history of mental illness in order to support a story that Mark had told ICE he was not a U.S. citizen, suggesting that Mark is or was mentally incompetent.

An ICE agent who does not work for public affairs told me that ICE in Atlanta tasked someone to go through Mark's medical records and pull out all the information on his "psychiatric illnesses." The agent told me that he could see in Mark's file that he was classified as bipolar, something that Mark himself had told me when we spoke on Friday and that I didn't mention because it had nothing to do with him being deported and because the diagnosis is uncertain, as I explain below.

Mark also is diabetic, but no one from ICE it Atlanta was asking for evidence about how this condition might have affected his detention and deportation. The agent would not tell me the grounds on which ICE had decided that Mark was Mexican, that was private, but was happy to tell me that Mark was bipolar. (Mark and his mother Jeanne discussed his having a "mental disorder" a television reporter who posted this on the internet, and that's why I'm writing about it today.)

The crafting of this information into an explanation for Mark's deportation was signaled as well by Ivan Ortiz, a DHS public affairs officer. I asked Ortiz why ICE gave Mark a notice to appear in immigration court. Ortiz replied, "That was a decision made by an immigration judge." This was not responsive, although I pity Ortiz's friends growing up, so I repeated the question. (Immigration judges do not issue notices to appear in their immigration courts; ICE does.)

Ortiz said, "At the time he did not say he was a U.S. citizen and everything indicated he was Mexican." I told Mark this afternoon what Ortiz told me and Mark was firm, repeating what he'd told me earlier, that he had insisted his name was Mark Daniel Lyttle, that he'd given him his social security number, which he had memorized, told them he was a U.S. citizen, and that he never, not once, said he was Mexican until after the immigration judge issued a deportation order and Mark wanted to get out of the Stewart Detention Center.

The DHS was trying to use a similar line in defending their deportation of Peter Guzman, also a U.S. citizen born in the United States. ICE said that Guzman himself had said he was born in Mexico. First, a defense against a charge of misconduct or kidnapping cannot be that the victim had a mental illness. And second, Mark Lyttle told ICE and Peter Guzman told the L.A.jail custodial assistant that they were born in the United States, respectively. (An agent states this in an affidavit defending Guzman's deportation and then says they didn't believe Guzman because aliens lie.)

Just to be clear, there are cases in which an underlying mental illness can wrongfully trigger deportation proceedings, as was the case for someone I identified as Anna in article I wrote for The Nation. Anna, documented as legally incompetent, told a police officer arresting her in Phoenix she was born in France and the foreign birth statement triggered her being sent to the Eloy Detention Center. She also has said that the Pope is her father and JFK is her father, but ICE did not deport her to the Vatican or call Caroline Kennedy.

Eventually, relying only on the sworn statement of someone who was legally incompetent, an immigration judge issued Anna a deportation order, which was not executed because France would not accept her so Anna is presumably wandering around southern Arizona deprived of her citizenship rights and subject to being thrown into detention at any point. A passport application in her files states she is born in Tehran, so Anna had better pray that the U.S. continues to have poor relations with Iran, or she might find herself in the Middle East.

In the event, I have spoke with Mark for a couple of hours. He was completely lucid and also sharp on the timeline and details of what happened. I hope there are tapes on file for the immigration hearings because I am confident they will confirm Mark's story.

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JEANNE'S STORY
Jeanne, 60, lost her job today as a rehab aid at a local hospital because she was allowed only one absence during her 90-day probationary period, set to end May 13, and she used up a second one on Friday when she went to pick up Mark from the Fulton County Jail where ICE was holding him.

This is just one example of the myriad of consequences that ICE misconduct causes to innocent parties, especially family members. Other examples are U.S. children of detainees being held in foster care before being adopted while their parents are either still in detention or deported, family members who are in advanced stages of illness denied the comfort of loved ones while on their death beds, U.S. citizens having their relatives, often legal permanent residents, "disappeared" by ICE, something that Jeanne also experienced, although part of the separation period is due to the prisons and not just DHS.

Jeanne hadn't seen Mark since July, 2007, when she dropped him off at a group home in North Carolina. Mark, one of three special needs siblings she adopted, in addition to two to whom she gave birth. Mark had some problems taking care of himself due to either mental illness or drugs he'd been prescribed to help treat it, discussed below. Jeanne was moving to Kentucky and there wasn't room in the Saturn for her daughter, Mark, and their belongings. The plan was that once she was settled, she'd come back and pick him up. She spoke with him on the phone a few times, enough to learn he was unhappy, but when she tried to make arrangements to find him in August, he was gone. Turns out he'd been arrested for trespassing -- Jeanne said he'd broken a rule in the home -- and he was sent to Jacksonville Jail.

After that Jeanne lost track of him, "I sent him a letter with everyone's phone numbers, but I got it back - 'Refused.'" In fall and winter, 2007 "his brothers walked the streets looking for him, everybody was looking for him. I checked the obituaries." On Mother's Day in 2008 she called a state hospital where Mark had once stayed, "The attendant remembered me and said, 'I'm not supposed to do this, but I'll get on the computer and check all the hospitals.'" No sign of of Mark. The same day, her son David, 29, said, "'Mom, let me try.' He sent the letter to same place at the jail and he enclosed the letter I got back. When I went to visit David in Winchester, Virginia, he showed me the manila envelope -- 'Refused'-- and we thought Mark had refused it. I thought Mark felt I left him behind, that I just left him [when I was moving to Kentucky]." Jeanne was crying, "We kept trying to find out where he was," and she told me about a family friend who was a lawyer and had hired a private investigator to help Jeanne find her son, but then the attorney had a stroke. It turned out that Mark had never received any of their letters.

Mark's absence haunted her family. Jeanne said that two weekends back she was visiting her son Tommy, 29, in Fort Campbell. They were talking about where Mark might be, speculating if he could be in Atlanta. Tommy tried calling some places, I'm not sure where, and Jeanne could hear him say, "I'm looking for Mark Lyttle." But no news.

Until Friday, April 17. That's when Jeanne received a phone call from Tommy, who said he was calling her about Mark. "I asked [Tommy] if he'd found [Mark] and he said, "Mom, I didn't find him, he found me," and explained how Mark had called him from the U.S. embassy in Guatemala, the first leg of Mark's trip home. If the embassy staff in Guatemala could believe Mark, and pay for an international call to his brother Brian, then why couldn't government employees in the United States exstend Mark the same courtesy before shipping him out of the country?

Jeanne described her response to Mark's deportation by his own government, "I'm a strong Christian woman, but let justice be served. This beats all. I thought I was dreaming, or seeing a made-for-TV movie. How many others are out there?"

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MARK'S MENTAL ILLNESS
Mark and his family freely discuss his mental illness diagnoses. Jeanne, who repeatedly mentioned her faith in God, said that perhaps it was a blessing that this happened. "Mark told me he was 'traumatized,'" revealing to Jeanne not only his distress, but a mental and emotional acuity that Jeanne had never seen in her son before. "I'm so shocked he's so clear-headed," she told me.

Jeanne explained that a while back a psychiatrist in Virginia had called and said "he wasn't supposed to be calling me" but he had treated Mark and when he took him off the medication, Mark seemed fine. In other words, it was the medication that was causing Mark's disorders. The psychiatrist said that she might have grounds for a lawsuit against the places that had been medicating him so heavily.

Again, I was reluctant to pursue this topic in this particular case because it seems a distraction from the main issue: ICE wrongfully deported someone. However, because his family is discussing Mark's psychological condition with the media and because ICE appears to believe that it is more defensible to deport someone because of mental illness than racial profiling, I thought I would supplement the record.

Mark's response to what happened as far as I can tell from our phone conversations is the response of any sane person: he's traumatized, terrified of law enforcement, especially ICE, and happy, very, very happy, to be back with his brothers, including Tommy, 29, who took this picture of Mark this afternoon.