ICE Officials Knew Dollar/Day Wages Lacked Congressional Authorization

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  E-mail ICE Fought to Keep Secret for Six Years May Clinch Minimum Wage Claims against Private Prisons

For the last ten years I've been conducting research on the history and legality of Immigration and Customs Enforcement (ICE) and its contractors paying $1/day to those in civil custody for work vital to the operation of the detention facilities. 

I've reported on the program's effects on U.S. citizens such as Mark Lyttle and others in ICE custody, the extent of the payments and their contributions to GEO and CCA (now CoreCivic) profits, the first lawsuit filed in Denver, the class certifications, and the positive treatment of these and subsequent cases by judges and appellate courts across the country.  (See other links at end.)

Today, almost six years after FOIA litigation to obtain e-mail behind the program, and following an order by Judge Harry Leinenweber telling ICE its "messaging communications" must be produced,  we now may have a proverbial smoking gun: 2014 e-mail from ICE's Director of the Office of Detention Policy and Planning (ODDP) challenging ICE's reliance on the 1979 appropriations bill for justification of the work program's $1/day wages, first disregarded and then, according to subsequent e-mail in this release, adopted as the agency's interpretation of appropriations policy for the ICE work program.

On May 1, 2014, ICE Director of ODDP Kevin Landy writes:

As indicated yesterday, I question the accuracy of this statement:
[']Facilities are reimbursed a minimum of $1 per day by ICE per Congressional appropriations standards.[']   Has someone concluded that the 1979 appropriations provision remains binding on ICE in perpetuity?  I don't think that's typically true for language inserted in appropriations bills. 

The subject heading is "NYT materials," presumably prompted by Ian Urbina, who was researching this article published on May 25.  Landy sent it to Barbara Gonzalez in the ICE public affairs office, as well as to other high-ranking officials, including Tae Johnson, then Assistant Director for Custody Management, Enforcement and Removal.  

On May 2, Ian Urbina received a statement claiming the Congressional appropriations standards justifying the work program identical to that proposed on May 1, suggesting ICE's colleagues rejected Landy's analysis.  The paragraph Landy challenged (and Urbina received) states:

Facilities that house the overwhelming majority of ICE detainees provide compensation for participation in voluntary work programs.  Facilities are reimbursed a minimum of $1 per day by ICE per Congressional appropriation standards. As of April 2014, the majority of those participating in some sort of voluntary work program -- well over 95% -- were provided monetary compensation.

Urbina's article was published on May 24.  

On May 27 at 3:34 p.m. Gonzalez proposed a response to questions from Telemundo, Univision, and Entravision triggered by Urbina's article.  The new statement, cleared by DHS, no longer included any reference to the Congressional appropriations authorization for the program.
 
At 10:39 p.m. that same day, in case one was not clear about the new version's rationale, Gonzalez sent an e-mail stating, "Sir, Per ERO, we struck this part of the background section: 'per Congressional approprations standards." (Emphasis added.)

Crucially, among the recipients was Thomas Homan, who became the acting director of ICE under Trump.  Homan's correspondence with GEO shows him rebuffing GEO's efforts for ICE to cover GEO's legal fees for the class action litigation over the firm's minimum wage and other labor violations, another indication Homan and his colleagues were fully aware that DHS and ICE did not find the 1978 appropriations bill for 1979 appropriations authorized the dollar/day payments for the ICE work program.
 
(ICE redacted the May 2 paragraph on the Congressional appropriations act in its release to me on Friday.  Fortunately, I have a previous FOIA production including the correspondence to Urbina from a prior FOIA request and this paragraph is not redacted; if I did not have this other release, the recent redaction would have made it impossible to document the change between the ICE statement of May 2 that included the 1979 appropriations rationale and the May 27 e-mail revoking this interpretation.)

In short, the release on Friday tells us that in addition to three federal judges, ICE itself since 2014 has rejected the claim by GEO and misleading statements by its own officials about the program's legal authorization in the appropriations act of 1978.  
 
Recently, the State Department's annual Trafficking In Persons report has made note of the litigation (p. 529).  Details on the legislative history of the program and its violations of the FLSA are available here; episodic scholarly publications, reports, and media coverage of the litigation are available via the Deportation Research Clinic, Buffett Institute for Global Affairs, Northwestern University.  

Thanks to Nicolette Glazer for her fabulous work in drafting motions to obtain the order for these materials to be re-reviewed and unredacted.  And thanks to Andrew Free for assistance in the initial FOIA litigation and brilliant work on the actual class lawsuits now underway.

Finally, none of this would have been possible without research assistance from Matthew Casler, Daisy Conant, Grant Li, Khadeejah Milhan, Caleb Young, and numerous other students who diligently tracked the redactions for us to challenge. Thanks also to the Buffett Institute, Posner Fellow Program, and Political Science department at Northwestern University for their support. 

Stay tuned for more analysis -- trying to upload entire file but server glitch.
6/22 update  -  93 page release now available here. 
Menocal brief from 6/30/2020 referencing new release here.

FOIA-ing the FOIA Manual! The Inside Scoop on USCIS and DHS Data Entry and Databases

From USCIS FOIA Search Training Manual

      A couple months ago, fed up with the randomness of Freedom of Information Act rote rejection letters from certain agencies--the State Department is the worst and USCIS had just lost a remand responsive to my appeal--I got off the phone with the USCIS employee and FOIA-d their FOIA manuals.  (UPDATE 9/3/2016-link fixed!)

     The response, uploaded here, is over 4200 pages.   

1 of 6 COW-2016-000509, pp. 1-750.

2 of 6 COW-2016-000509, pp. 751-1499.

3 of 6 COW-2016-000509, pp. 1500-2249.

4 of 6  COW-2016-000509, pp. 2250-2999.

5 of 6 COW-2016-000509, pp. 3000-3749.

6 of 6 COW-2016-000509, pp. 3750-end.

The information could be helpful for FOIA litigation (next up: other agencies) and also provides insights from actual agency examples that might be helpful with due process litigation.  I'm still scrolling through it... 

Colorado Judge Swats Down GEO's Motion to Reconsider Class Action Lawsuit Brought by Captive Labor Force, New Evidence of GEO Labor Violations

 

GEO claims paying people fair wages "will result in manifest injustice," and claims that ordering a trial by jury, i.e., the rule of law, "should be corrected before litigation in this case and other cases grows in scale."  (Menocal et al. v. GEO, Doc. 29, Motion to Reconsider, 2, August 4, 2015).

Federal District Court John Kane disagrees. (Doc. 31, Order, August 26, 2015).

In the latest round of motions from a lawsuit last October, GEO whined that laws designed to prevent exactly GEO's exploitation of labor had some other purpose, and that it would be absurd to follow their plain text.  One new argument was that the Plaintiffs had no expectation of fair payments for their labor.  And, GEO argued, it would really suck for them and other prison firms if the lawsuit were to proceed per the judge's previous order.

The judge's response, in two pages of text: the arguments either were the ones he already found unpersuasive from the first round, or a new argument that the Court will not consider "for the first time on a motion for reconsideration." 

New Documents Further Contradict GEO's Defense

 

Reimbursement invoices for the work program being released in dribs and drabs responsive to my FOIA lawsuit further document that GEO is making up its own pay scales and not just acting as a pass-through for ICE's $1/day payments last authorized by Congress in 1978.  Note that for GEO's Pearsall, South Texas facility, there is one column for the reimbursements from ICE and another for their own outlays.  This is consistent with other documents on which I reported in the working paper "One Dollar Per Day: The Slaving Wages of Immigration Jail, 1942 to Present," soon to be published in the Georgetown Immigration Law Journal.  (I'll fill in the link once it's published.)

This release further illuminates the conditions of a labor force compensated well below the minimum wage.  Excluded from these positions is the local community, once again highlighting GEO's violations of the Fair Labor Standards Act and the Trafficking Victims Protection Act (2008), codified in part in the statute prohibiting Forced Labor. 

According to18 U.S.C. 1589 (a) "Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means— (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person ... shall be punished as provided under subsection (d)."

The variation in wages suggests a rudimentary labor market, one with radically depressed wages because of captivity, and not people chipping-in because of boredom to help keep GEO in business.  This is more evidence that GEO is basing its business on forced labor -- were GEO not operating on a business model that assumes they can physically control their workforce, they would need to be paying wages of more than one dollar per day or even three.

Section (d) states: "Whoever violates this section shall be fined under this title, imprisoned not more than 20 years, or both. If death results from a violation of this section, or if the violation includes kidnapping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title, imprisoned for any term of years or life, or both."

While President Obama's rounding out his term by using his executive authority to enforce labor rights, maybe he should call up the Department of Labor and send out a few inspectors to check out GEO's cleaning, kitchen, and laundry employment practices in Colorado, Texas, and elsewhere, and charge them with violations of the FLSA and the TVPA.  Or, they could visit facilities run by the Correction Corporation of America or any of the other ICE facilities that use the same business model.

NPR Airs Story on ICE Private Prison Labor

NPR reporter Alexandra Starr covers lawsuit and slaving wages to those in custody under immigration laws.  Listen here.

Note that in response to my assertion that those in ICE custody are not exempt from the protections of federal labo laws, GEO notes the dollar/per day level in an appropriations Act, but fails to engage with the fact the appropriation level set expired in 1979.   Note as well that there are many other labor laws that have little to do with wages, and from which there is not even old law that exempts from coverage those working for private prisons firms.

This includes standards of the Occupational Safety and Health Administration, and which were found by a California agency to apply to apply to a California resident in ICE custody courtesy of the Mira Loma Sheriff.

Colorado District Court Green Lights Historic Lawsuit: Private Prisons Using Forced Labor of ICE Residents Ruled Illegal

Related: Recently Released Documents Show California OSHA 2008 Final Decision Ruling ICE Resident in Employer-Employee Relation with ICE Jail

In an historic decision, on July 6, 2015 Senior U.S. District Judge John Kane issued an order telling Defendant GEO Inc, that if people in their custody under deportation laws could prove they were forced to work, and that GEO was enriching itself as a consequence of this, then plaintiffs in a class action lawsuit would be entitled to millions in damanges. 

This is the first time a court has told a private prison firm housing people under U.S. immigration laws that it couldn't force them to work and that if it did, restitution and damages for this "unjust enrichment" could be pursued.

GEO holds more U.S. residents in custody under immigration laws than any other private prison firm, with the Corrections Corporation of America running second.  The case was brought against the GEO facility in Aurora, Colorado following attorneys reading a New York Times article featuring a link to my working paper, a revised version of which is now forthcoming in the Georgetown Immigration Law Journal.

After previous reporting on my FOIA findings failed to elicit legal interest, I decided to map out the program and legal history to help attorneys navigate a program that survived heretofore because of obscurity and ICE stonewalling on releasing information. Attorney Brandt Milstein saw the Times article, read my paper, and then contacted Andrew Free, FOIA attorney for the Deportation Research Clinic.  (Free is referenced in my paper's acknowledgements and footnotes for his insights based on his review of relevant government documents released under the FOIA).

Free, co-counsel on the case, provided legal research and arguments for the Plaintiff brief, submitted as well by co-counsel Nina DeSalvo, Executive Director of Towards Justice, and co-counsel Andrew Turner, and the rest really is now history.  Regardless of whether the appellate court overturns the decision, the United States now has on record a judicial order stating that private prisons may not force those in custody under immigration laws to work, and that firms can be held responsible for financial penalties if they are found to have done so.  The actual proof of these forced labor episodes is the low fruit--it is copiously documented--and the determination on these points of law will stand as a signficant developement in the history of civil rights accomplishments.

In the 1830s, prosecutors episodically attempted to hold slave owners, and those Whites who rented slaves, liable for criminal charges of cruelty or homicide.  Juries and judges were confused and voted or ordered in an ad hoc fashion--they were appalled by the specific events but also sensitive to the excuse that if people were property their owners could do with them as they pleased.  The legal theories in these cases helped crystallize intuitions about the inherent injustice of slavery and were part of the developing public debates in movements for its abolition.  Using the law to thwart injustice is a long-standing tradition in the United States, as is resistance to this and backlash.  This order is part of that tradition.

For the original complaint, and key excerpts, please go here.  The case is Alejandro Menocal et al. v. The GEO Group, Inc.,  1:14-cv-02887-JLK (D. Colo.).

 Less encouraging, and somewhat confusing, was Judge Kane's decision to follow the Alvarado Guevara precedent and those of Colorado state prison cases in finding that the Plaintiffs were not entitled to damages under Colorado's Minimum Wage Order.  (The specificity of findings related to the private prison profits seem inconsistent with the deference to the 1990 decision in the context of a federal government run facility, and the judge did not grapple with this distinction as it pertains to the definition of a labor market.)

In the event, this was the first case filed; a related cases is pending Suffolk County, Massachussetts and at least one more is being prepared.

New Documents Show ICE Knew Cal OSHA Ruled Mira Loma Work Program Fell Under Cal OSHA Jurisdiction: Employer-Employee Relation Found

Finally, according to information released to me recently through FOIA litigation I am now updating the forthcoming article to reflect the fact that in 2007 Cesar Gonzalez Baez, an ICE resident working for the Los Angeles Sheriff Department while housed at its Mira Loma facility, died after his jackhammer hit a power line and 10,000 volts of direct current charged through his body. Other horrified workers witnessed this.  After immediate brain damage Mr. Gonzalez died two days later.

The purpose of his labor?  Holes for new fence poles needed to expand the facility's perimeter responsive to ICE's demand for more bed space.   Cesar Gonzalez died so that ICE could lock up more U.S. residents.  (The Mira Loma facility was for those detained in the L.A area; when I observed hearings in 2009, everyone was a long-time resident of the United States and had extensive family ties; most were teenagers who'd grown up in the area and were picked up on minor or pretextual misdemeanor charges.)

There are numerous other episodes reflected in grievances released to me in this 501 page document. A full analysis is forthcoming in the law review article, but one point bears mention here: ICE's persistent confusion of its public affairs office with a propaganda outfit.  In the same time frame in which ICE was claiming to journalists, myself included, that the program was completely legal and that the ICE residents working in the facilities were not employees, the ICE top brass knew of a 2008 Caslifornia OSHA final decision finding that Cesar Gonzalez WAS in an employee-employer relation and that the LA County Sheriff had violated California's OSHA law.

ICE needs to stop pretending this work program is legal and at the very least immediately reflect the policy implications of the Cal-OSHA finding in its California private prison contracts, including with GEO's Adelanto facility, near Vacaville, the location to which the Mira Loma residents were transferred when that contract expired in 2012.

The Deportation Research Clinic, housed in the Buffett Institute for Global Studies at Northwestern University, conducts research informed by the emerging paradigm of forensic intelligence, whereby scholarship is tied to analyzing and creating new legal discourses and facts.

GEO Sued for Minimum Wage and Forced Labor Law Violations, and Unjust Enrichment

Lawsuit seeks $5 million in minimum wage law damages and also compensatory and exemplary damages for Forced Labor (18 U.S.C. § 1589), 

and Unjust Enrichment 

American Friends Service Committee, May, 2010 vigil at GEO facility in Aurora, Colorado, sign reads, "We are not the NEW SLAVES"

Yesterday, Alejandro Menoca, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes, Argueta, Jesus Gaytan, Olga Alexaklina, Dagaberto Vizguerra, and Demetrio Valerga on their own behalf and others similarly situated filed a complaint informing a federal judge that their guards were breaking the law.

The complaint, filed by an intrepid team of lawyers who spent extensive time interviewing detainees at the GEO facility in Aurora, Colorado, states:

In the course of their employment by GEO, Plaintiffs and others scrubbed bathrooms, showers, toilets, and windows throughout GEO’s Aurora facility. They cleaned and maintained GEO’s on-site medical facility, cleaned the medical facility’s toilets, floors and windows, cleaned patient rooms and medical staff offices, swept, mopped, stripped, and waxed the floors of the medical facility, did medical facility laundry, swept, mopped, stripped, and waxed floors throughout the facility, did detainee laundry, prepared and served detainee meals, assisted in preparing catered meals for law enforcement events sponsored by GEO, performed clerical work for GEO, prepared clothing for newly arriving detainees, provided barber services to detainees, ran the facility’s law library, cleaned the facility’s intake area and solitary confinement unit, deep cleaned and prepared vacant portions of the facility for newly arriving detainees, cleaned the facility’s warehouse, and maintained the exterior and landscaping of the GEO building, inter alia.

 The complaint also includes violations of a federal law prohibiting Forced Labor, 18 U.S.C. § 1589:

5.  GEO or its agents also randomly selected six detainees per pod each day and forced them to clean the pods. In the handbook that GEO distributed to the detainees, GEO announced a “Housing Unit Sanitation” policy informing the people held at the facility that “[e]ach and every detainee must participate in the facility’s sanitation program.”

6. GEO or its agents forced Plaintiffs and other civil immigration detainees to clean the facility’s pods for no pay and under threat of solitary confinement as punishment for any refusal to work.

 And the complaint references Colorado Common Law prohibiting Unjust Enrichment.  In precise and riveting language the 21 page brief brilliantly lays out the legal problems with the private prison industry's business model.

 The attorneys who filed this lawsuit are Brandt Milstein, Boulder, CO; Andrew Turner, Denver, CO; Alexander Hood, Golden, CO; Hans Meyer, Denver, CO; and Andrew Free, Nashville, TN.

I have been filing FOIA requests on this topic for several years and Andrew Free is currently representing me in extricating additional material for use in a working paper that will be revised for publication next year in the Georgetown Immigration Law Journal.  For more research on related violations, please go here.

EOIR Refuses to Investigate Lying Adjudicator William Cassidy: DOJ Needs to Re-read Edward Coke

1614 portrait by Gilbert Jackson

Edward Coke is the genius behind independent judicial review and thus the rule of law.  Familiar with the king's courts, Coke would recognize the immigration courts as a poor excuse for the real thing. (More at bottom)

New Filings in Lawsuit against EOIR for Bivens Remedy and Injunctive Relief

October 14, 2014, Case 1:12-cv-01352-ODE:

Plaintiff's Motion for Partial Summary Judgment (6 pages)

Memorandum of Points and Authorities in Support of Plaintiff's Motion for Partial Summary Judgment (38 pages)

Plaintiff's Statement of Material Facts as to which there is no Genuine Issue to be Tried (24 pages)

These are the most recent motions in the lawsuit I filed April 18, 2012 after receiving information proving that Atlanta's William Cassidy indeed ordered a guard over whom he had no legal authority to push me out of a building lobby where I was writing in my notebook.  Cassidy then lied about this in a formal response to his friend Gary Smith's sham investigation of my misconduct complaint.   (Immigration judges have no authority over building guards, so Cassidy and Smith decided to put together a record suggesting this never happened.)  

In Cassidy's sworn affidavit, produced after the guard confirmed Cassidy had ordered my removal, he no longer denies the order and is just silent on the event altogether.

A few highlights from discovery and filings not under any request for a protective order are: 

-The guard who initially accosted me admitted to the Paragon Security firm lawyers that Cassidy had told him to have me removed from the building;

-MaryBeth Keller, in charge of immigration judge misconduct investigations for EOIR, as soon as she received my formal complaint, called a meeting with the people whom Cassidy's pal Gary Smith was organizing to ban me from the immigration court to "avoid a right-hand/left-hand scenario," as she instructed in the email, and she assigned Smith to coordinate the sham investigation of my complaint. 

Even when confronted with clear evidence of Cassidy lying, and conceding that this was a concern, Keller is refusing to investigate at this point because of "litigation."  

Keller used to run EOIR's Office of General Counsel and her statement reflects the worst of professional ethics --one would think that especially someone who is employed by an agency of the Department of Justice would view verification of illegal conduct brought to the agency's attention by any means, especially a lawsuit, would be a reason for firing someone.  For Keller, it's a reason to sit on her hands.

It is a blight on the DOJ and the immigration courts that MaryBeth Keller is in charge of misconduct complaints; a cursory review of their incomplete release responsive to the lawsuit brought by AILA and Public Citizen shows she is running an operation that is largely toothless. Complaints take hundreds and even thousands of days between the date of the incidents and being closed.  If you want action, file your complaint against an IJ with the respective state bar and instruct them NOT to forward it to EOIR.  

Keller  is still a defendant in the lawsuit's claim for a Bivens remedy and injunctive relief; she, like Smith, are claiming that the job title "Assistant Chief Immigration Judge" gives them judicial immunity. Our filing yesterday explains why this position is ridiculous.  

-Gary Smith, who had spoken with Cassidy shortly after Cassidy ordered me pushed out of the building and presumably knew all along what happened, failed to obtain statements from the two eye-witnesses to Cassidy's order and exchange with me (Paragon guard Nathaniel Hayes and Cassidy's assistant), and did not acknowledge that other accounts contradicted the one Cassidy gave and backed up my account.  (Shortly after I filed my lawsuit Smith retired and is now living in Georgia; he also remains a defendant in the Bivens claim.)

-Frances Mooney said she also heard that Cassidy had ordered the guards to remove me from the building.  (Mooney was a defendant Judge Orinda Evans dropped from my lawsuit because my amended complaint didn't include enough details about her specific actions; that's too bad because the record shows she was using her KGB-like position of managing the immigration courts' building security and public affairs to try to ban me and admitted that the reason I was targeted for surveillance and banning was because of what I wrote.)

-Cynthia Long is still the court administrator in Atlanta.  A highlight was her claim that before I had ever set foot in that building she circulated an email to a bunch of folks in EOIR headquarters and all the staff and IJs in Atlanta announcing Mark Lyttle and I would be arriving and might try to observe hearings.  She acknowledged that "in the history of the world" she had never sent another such an email on the occasion of someone picking up a file.  And she acknowledged I was singled out for needing special permission to enter the immigration courts.

Long was also dismissed from the lawsuit because of lack of specificity in the First Amended Complaint but the email and deposition make it obvious she was involved in unlawful restrictions on my observing hearings throughout the entire time frame; the statements and actions of which her supervisors are well aware violate the regulations and the First Amendment. The Atlanta immigration court is an object of derision and, save the fact that Long used to work in Falls Church headquarters and is part of the crony culture there, her persistence in that position would be a mystery.

-Lauren Alder Reid, who runs the public affairs office under the supervision of Frances Mooney, is someone whom I rightly suspected also played a role in working to ban me from immigration courts.  I did not name her in my lawsuit because, unlike Cassidy, Smith, and Keller, she was the only one who turned over email responsive to my FOIA request before I filed the lawsuit and I was grateful to her for this. (This was before I was litigating under the FOIA statute.) 

Alder Reid's email gave me information I needed to file the complaint.  I think the reason she is the one who coughed up her email is that I had filed a misconduct complaint against her previously because she had been giving me the run around about the access policy for immigration courts and then when I finally FOIAd it and I learned she was the one the who wrote it I realized she'd been lying to me.  

Alder Reid claims that the OIG investigated my complaint and found it baseless; she said her source for this information was a telephone conversation with a man whose name she could not recall; I have a letter from OIG saying that they never conducted an investigation and referred my complaint back to EOIR, and I have a phone message recording on my answering machine I saved from EOIR saying the agency never investigated my complaint.

Alder Reid also claims that my misconduct complaint had nothing to do with her decision to turn over email and that this was just a result of her open and forthcoming habits. Based on releases in discovery I find this disingenuous.  Judge Evans denied the government's request for a protective order a while back but I'm not sure of the current status of some documents for which they have requested this since then and will wait before going into this further.

-Cassidy has withheld responsive email and also seems to prefer the phone to a digital trail.  But his pals sell him out:  immediately after hanging up, the folks with whom he speaks send emails to each other.  The picture that emerges is him coordinating with the court administrators Long and Ray Bethune to mask his hearings from me by not posting his dockets, or avoiding hearings when I'm around.  Again, his job security seems due to his longtime ties with folks in agency headquarters; other IJs have been forced out for less egregious actions.  One of the problems is that the misconduct complaints against him were for a long time handled by Smith and Keller, who were covering up violations much more egregious than those about which I was complaining.  

Finally, to Attorney Bruce Brown, for being such a smart guy and terrific attorney: Thank you!!!

 Coke was the Attorney General under Elizabeth and when he supervised the courts under James I he challenged the legality of a ruling in the King's court on behalf of James, and was fired.  But a few years later, from Parliament, Coke brought 23 corruption charges against his nemesis, the Royalist Francis Bacon, then Lord Chancellor (in charge of all courts).  The charges stuck and Bacon was fired and spent a brief time in the Tower of London.  Thomas Hobbes prepared Bacon's work for publication in the few years between the conviction and Bacon's death in 1626.  (I was just lecturing on Coke in my political theory class and was tickled to see my attorney Bruce Brown had referenced a decision by Coke in the motion below.)

More on the Government Illegals Running the Immigration Courts

Attorneys are filing complaints against the sadistic clowns showing up for work in black robes at the Atlanta and Dallas immigration courts.  Will the Executive Office of Immigration Review do something, or will MaryBeth Keller and her cronies in the Office of General Counsel continue with their typically fake investigations and cover-ups?  

Analysis of misconduct complaint management from FOIA releases and lawsuit shows agency malfeasance.  To be serious about housecleaning, the agency needs to fire MaryBeth Keller, EOIR's leadership in the Office of General Counsel, and bring in the GAO for audit

A solo practitioner on Wednesday lodged with the Executive Office of Immigration Review (EOIR) a misconduct complaint against Atlanta immigration court case manager Dan Pelletier because he denied at the last moment her unopposed motion for a continuance to accommodate her maternity leave, and then yelled at her in a crowded court for showing up with her infant daughter, ultimately rescheduling the hearing per her initial request.

Attorney Stacy Ehrisman-Mickle's motion for a continuance is copiously cited and also accompanied by a detailed report from her physician.

 Ehrisman-Mickle's wrote to EOIR, in part:

 My complaint is simple: the IJ denied my motion for continuance for a master calendar hearing because he believed that being on maternity leave is not “good cause”. My initial consultation with the relevant clients (juvenile brothers) was on July 8, 2014. Due to financial constraints, the boys did not hire me right away. They went to their first master calendar hearing unrepresented on September 2, 2014. The boys and their mother came to my office on September 6 - the Saturday after their first master calendar hearing. The clients hired me that day and did not care that I had to file a motion for continuance due to my maternity leave. On Monday, September 8, I mailed a motion to continue their second master calendar hearing scheduled for October 7, 2014. The court received the motion on Tuesday, September 9. Counsel for DHS did not oppose my motion. The IJ did not rule on the motion until Thursday, October 2. I received the decision denying the continuance on Friday, October 3. I appeared with my clients this morning at their scheduled master calendar hearing. I was forced to bring my weeks old daughter with me as day care centers do not accept infants less than 6 weeks of age and I have no family in Georgia that could help me look after my baby. My husband is a truck driver and was out of state today. My family is in Iowa and my husband’s family is in New York and New Jersey. We have only lived in Georgia since November of last year. When the IJ saw me with my daughter, he was outraged. He scolded me for being inappropriate for bringing her. He questioned the fact that day care centers do not accept infants less than 6 weeks of age. He then questioned my mothering skills as he commented how my pediatrician must be appalled that I am exposing my daughter to so many germs in court. He humiliated me in open court.

Ehrisman-Mickle told me that that the EOIR supervisor of the Atlanta courts, Elisa Sukkar, called and expressed her frustration that Pelletier failed to record the exchange and indicated this meant Ehrisman-Mickle had the presumption of accuracy in any dispute about the facts, though Sukkar also indicated she might need further evidence from the attorneys then present.

Dallas Case Manager Dietrich Sims Targeted for Removal
On Thursday I received an email through a listserve from Attorney Niloufar Khonsari.  She indicated her own recent grievance filed against Dallas immigration court case manager Dietrich Sims, and called for other attorneys to share with EOIR their complaints at this time as well.

Khonsari is asking that EOIR terminate Sims and is asking attorneys to forward their complaints against Sims to ACIJ Dee Nadkarni at:  eoir.ijconduct@usdoj.gov

To make sure they don't ignore your Sims complaint, you can also send a copy to Khonsari.  Her email address is -- nilou AT pangealegal.org.

Khonsari Complaint
Khonsari was concerned because Sims first denied her motion for a change of venue because he found her client prima facie ineligible for relief even before his first master calendar hearing (he is eligible for cancellation and asylum). And then, when her client had flown from San Jose to Dallas (he'd been picked up for "driving too closely" and then brought by Dallas police into ICE custody before being released on bond) case manager Sims failed to call the pro bono attorney, per the telephonic hearing to which he had previously agreed.

Such burdens are unwelcome for most firms and a serious obstacle to due process when imposed on already overburdened nonprofits representing indigent clients. Khonsari's complaint to EOIR, including complaints from local attorneys preferring anonymity to incurring further wrath from Sims, states in part:

 -“[H]e is erratic and unpredictable.” 
 -“[He] never grants COV – especially not to CA.” 
 -“He made one of my clients travel from New York City for more than two years worth of hearings…” 
 -“[He] denies most cases.” 
 -“Sims acts as a prosecutor, rather than judge, and invented requirements, such as proving a prima facie case for asylum as a prerequisite to changing venue, that exist in no statute, regulation, or case law.” 
 -“Please file a complaint with the chief immigration judge [against Judge Sims]!” 
- One attorney recently reported that IJ Sims denied a child-client a continuance and ordered a deportation after the child had been granted special immigrant juvenile status. In that case, IJ Sims claimed he had no jurisdiction over the child's adjustment application and sua sponte, ordered the child deported.

Misconduct Investigation Data

The feeling among attorneys is that EOIR's system of  misconduct investigations is a farce. And a preliminary analysis of data released so far backs them up.

Since late 2013, EOIR has been releasing immigration judge misconduct complaints and investigations in summary form, and, since April, 2014 many of the associated underlying complaints and findings.

There are several huge problems with the release to AILA, represented in their FOIA litigation by Public Citizen.  But even the release as doctored by EOIR reveals some interesting results.

Here are some observations based on a quick analysis of the first "200" of their release (really 197-- three inexplicably are missing) from a spreadsheet, produced by Northwestern undergraduates Sam Niiro and Adelina Pak and a crosstab spreadsheet produced by Sam Niiro by complaint source and ACIJ, for the outcomes.

Summarized below are some glaring problems that stuck out as my colleague Professor Heather Schoenfeld and I began assembling data for a more systematic analyses of the release, and press for more accurate reports.

-The number of days lapsed between the conduct and the case being closed are incompatible with any process of remediation. 
Highlights include a complaint submitted by an attorney requesting the ACIJ's assistance with a request for an IJ's recusal that ACIJ Sarah Burr dismissed for "failure to state a claim" after a mere 2,793 days.   This is an outlier but the median range of several hundred days is not much more comforting. Nor are the problems with Gary Smith's "investigations," leaving aside for now his coverup of my own misconduct complaint. For instance, the Board of Immigration Appeals sent Smith a complaint noting an "IJs written order denying R[espondent]'s motion to reopen accuses counsel of attempting fraud," and the next day Smith "dismissed" the complaint "because it cannot be substantiated."  (Emphasis added.)

Nor is it encouraging to note rare punitive decisions taken after the offending IJ has been deporting thousands more, as when, responsive to allegations an IJ "maligned and exhibited hostility towards complainant's law firm, its attorneys, and clients" and intervened in "civil state court adoption proceeding involving an alien child and parent." ACIJ Larry Dean suspended an IJ on October 15, 2012, 1,026 days after the complaint was received.

Dean likewise ignored a complaint that an "IJ prematurely ended the proceedings following a terse exchange and did not adequately evaluate the removal charge," a complaint brought by the BIA on June 9, 2009 for behavior on July 18, 2007 and closed on September 8, 2010 with the IJs retirement.

-Lame or no responses predominate
"Oral counseling" leads all categories of responses (73), and an additional 64 are dismissed because they are "unsubstantiated" (28, including the one above), "merits-related" (22), failure to state a claim (8), disproven (4), or frivolous (2).

15 cases close because the IJ retires.  These are not 15 separate IJs but include multiple complaints against the same IJ--the exact number is not clear because of EOIR coding mistakes, about which EOIR refuses to comment).

-Single IJ terminated over AILA Objections  (#126)

I was contacted by an active AILA attorney in 2010 who felt EOIR was using the complaint as a pretext to go after the IJ for her rulings.  Keller, who managed the investigations, assigned Smith to do the dirty work, even though this was not among the courts he supervised.  The IJ EOIR fired had the reputation of being more progressive.  (She was dismissed after "IJ alleged to have misused position and equipment to influence court action against her husband" and related charges based on assisting her husband with his own traffic case.)

This is all of course the tip of the black ice floe that is EOIR.  Ehrisman-Mickle and Khonsari are to be commended for standing up to these bullies and on behalf of  integrity of a system that is sorely lacking in it.

(The disturbing scope and character of the misconduct complaint misrepresentations in the data released under the supervision of MaryBeth Keller will be discussed at another date, and also the actions of her colleagues in the agency's Office of General Counsel.)

Thanks to Tom Fritzon for the art!

'What HE Said!': Eastern District of Louisiana Judge Affirms Plaintiff Brief, Denies Government Motion to Dismiss Deported U.S. Citizen's FTCA Claims

On August 4, 2014 Andres Robles, through his attorney Andrew Free, went on record with a motion explaining why the court had jurisdiction to hear his case under the Federal Torts Claims Act.

Two days later district court judge Carl Barbier in Louisiana endorsed it.

The one-line decision states: "For the reasons outlined in Plaintiff's Opposition, IT IS HEREBY ORDERED that the government's Motion to Dismiss for Lack of Jurisdiction (Rec. Doc. 18) is DENIED."

(Free's 15-page motion is instructive reading for anyone wanting to sue DHS for malicious prosecution.  See below for full pleadings.)

U.S. citizen Andres Robles may pursue redress for his country's refusal to recognize him as a citizen, leading to his detention, deportation, and further Kafkaesque ordeals from the persistent incorrect entries in federal databases.

For the original complaint and background, please go here.

The more recent motions from July and August, 2014 are here:

Government Motion and Exhibit (Defense/dates of filings)
Memorandum in Support of Motion to Dismiss (07/25/2014)
Exhibit-Acuna Declaration, noting June 2014 update of records (07/25/2014)

Andres Robles Motion and Exhibits (Plaintiff/dates of filings)
Response In Opposition to Motion to Dismiss (08/04/2014)
Exhibit 1- Order in Ortega (08/04/2014)
Exhibit 2- Order in Ibrahim (08/04/2014)

Judge's order

More...
For details on Andres's case from when States Without Nations broke the story based on information from outraged attorney Larry Fabacher, please read the Andres Robles tag, which includes his
interview by NPR's Story Court (along with his sister Maria) and his interview on Al Jazeera English.

(Full disclosure: lucky for me, Andrew Free also is my FOIA attorney.)

Al Jazeera Covers Deportations of Esteban Tiznado and Andres Robles

Oysterman Andres Robles, acquired US citizenship in 2002 when 14 years old, 

deported in 2008, 

Social Security number still not cleared in E-Verify

Adam Raney of Al Jazeera television put together a terrific segment documenting the deportations of Esteban Tiznado and Andres Robles, whose stories were first reported here.  For background on Esteban's case, read here; for more on Andres, read here.

http://governmentillegals.org/RoblesComplaint.pdf

On behalf of Andres, Attorney Andrew Free filed on March 26, 2014 a complaint requesting the federal government fully rectify its mistake and also award damages.  The complaint provides a terrific narrative of Andres's ordeal.  It also adds to the database of federal immigration lawsuits and judicial orders in which the word "Kafkaesque" appears.  (Attorney Free also represents me in FOIA cases, though not any involving Andres.)

Esteban is now finishing up a short sentence in the custody of CCA Central Arizona, part of their vertical integration plan: first they lobby Congress for a 34,000 bed/night mandate;  ICE, incentivized to fill these beds, assesses agent performance on the basis of the quantity of arrests, not whether they are lawful; then, when US residents, many unlawfully deported, try to return, they end up in CCA's federal prisons, after convicted of Illegal Reentry (18 USC 1326)  - this being the population that has long surpassed drug offenders as the largest group in federal custody.

Next week Esteban again will be released from criminal custody, again deported, and again attempt to return home.  Each time he is locked up his body becomes weaker, but his will to return home remains as strong as ever.

Correction: An earlier version indicated Andres still had not obtained his Social Security card.  This is not correct.  He does now have his card.   In the years following his return from Mexico, Andres and his sister Maria had r attempted to obtain a social security card for him,  but it never arrived.  Each time they were told to fill out a new application.  After several attempts over more than a year, the card did finally arrive; however, the linked databases mean any E-verify inquiry will indicate his deportation and thus the wrongful deportation may continue to pose problems for him.

Federal Judge Orders Top Immigration Court Officials Stand Trial for Civil Rights Violations, Orders Discovery

On June 4, 2013, Judge Orinda Evans, Northern District Court, Georgia, issued two orders in the cause of government transparency, in particular recognizing the rights of the public and the media to attend immigration hearings.  Judge Evans is granting my attorneys' motion to enter an amended complaint, one holding accountable in their individual capacities for monetary damages top officials at the Executive Office for Immigration Review.  And she opened discovery.

This order is relevant for anyone who has filed a misconduct complaint with the federal government and has preliminary evidence to suggest that supervisors assigned to investigate are trying to coverup and not reprimand misconduct by agency employees.

In the context of the EOIR, Judge Evans decisively swatted away the claims of judicial immunity:

For example, not only does Plaintiff allege her rights were violated by the decision, on the relevant days, to exclude her from the courtroom, but she also alleges due process violations and a civil conspiracy to cover up her removal and exclusion. Included in these counts are claims based on incomplete responses to her FOIA requests, and a claim that Keller and Smith, assistant chief immigration judges based at EOIR headquarters in Virginia, failed to properly investigate her administrative complaint. Surely. the government is not asking this Court to grant all executive officials who handle administrative complaints or FOIA requests absolute judicial immunity.

The government has fallen woefully short of its "burden of establishing the justification for such immunity." Roland, 19 F.3d at 555

  (This means that if a jury finds they violated my civil rights, these individuals pay the damages, not the taxpayers.)  Second, she granted our request to open discovery for four months.  On the first order Judge Evans granted the government's request to deny the Bivens claim against Cassidy based on his so-called "absolute judicial immunity." We will be appealing this after this part of the case has concluded on the grounds that immigration courts are not judicial.

(Most of the folks reading this blog will know this, but the background is that on April 19, 2010 I was unlawfully removed by force from the Atlanta immigration courts on order of a immigration judge, aka DOJ attorney.  William Cassidy, who has one of the highest rates of asylum denials in the country and draws complaints from numerous attorneys, deported U.S. citizen Mark Lyttle to Mexico and then was retaliating against me, in concert with his cronies in the Falls Church headquarters, for reporting on this.  His cronies then covered this up.)

Thanks so much to my attorneys Ray Lerer and Beth Taylor at Federal Hasson in Atlanta for their persistence and great work on these briefs.

Also, if anyone reading this has suggestions for discovery, either for specific documents or questions for depositions, please let me know, either by posting a comment here anonymously or by sending me an email, jacqueline-stevens AT northwestern.edu.

I have positive updates to report on the FOIA litigation as well, undertaken with Andrew Free of the Ozment Law Firm in Nashville, and will post on that next week, as well as on US citizens who have been recently detained and deported from Texas.

Federal Judge Green-lights Lawsuit Against DOJ and DHS: William Cassidy's Actions to Receive Strict Scrutiny

At the instigation of immigration judge William Cassidy, a former deportation agency prosecutor, on April 19, 2010 various federal officials and Paragon Systems, Inc. guards interfered with my Constitutional rights to observe deportation hearings for the detained docket in Atlanta, Georgia.  Last week, Atlanta-based Eleventh Circuit District Court Judge Orinda Evans filed an order denying the federal government's motions to dismiss my pro se lawsuit based on those events and related ones.

For background on the underlying complaint, please go here.

The order allows me to show a jury the violations of my First and Fifth Amendment rights by guards employed by Paragon Systems, Inc. , and also to seek injunctive relief against William Cassidy, aka, the immigration-judge-who-deported-a-North-Carolina-born-U.S.citizen-who-speaks-no-Spanish-and-has-no-relatives-in-Mexico-to-Reynosa.  Judge Evans also denied his accomplices' motions to dismiss my lawsuit, and so they also remain as named federal defendants who may be ordered to follow the law that they are charged with enforcing.

These federal defendants are:  Eric Holder, Attorney General; Juan Osuna, Director, EOIR; Fran Mooney, Assistant Director for the Office of Management Programs, EOIR; MaryBeth Keller, Assistant Chief Immigration Judge, EOIR; Gary Smith, Assistant Chief Immigration Judge, EOIR; William Anthony Cassidy, Immigration Judge (EOIR); Cynthia Long, Atlanta Court Administrator, EOIR; Darren Eugene Summers, DHS.

Part of the order, alas, grants Department of Justice attorney/adjudicator William Cassidy absolute judicial immunity, from the damages portion of the lawsuit.  I will be appealing that portion of the order on the grounds that Congress deliberately denied immigration judges any authority to control the physical movement of anyone in their hearings or anywhere else, unlike federal judges who do have legal authority over the physical movement of spectators in their court rooms.  Congress provides federal judges the prerogative to issue orders to law enforcement personnel to make arrests and control the physical movement of people in their court rooms, and provides other contempt authority as well.  None of these are in the statute circumscribing the contempt authority for immigration judges, which at most would be to issue civil fines, but only if authorized by the Attorney General, and the A.G. has not provided even this limited authority.  Therefore, precedents that protect court room abuses by Article 3 federal judges do not apply to immigration judges.

(My complaint is that Cassidy unlawfully closed hearings and the damages are claimed because in addition to this, he ordered guards to remove me from the building.)

In addition to Cassidy lacking contempt authority, save the robes and other paraphernalia, immigration hearings are closer to kangaroo courts than actual judicial venues, including other administrative law proceedings.  Unless the courts want to rule that federal employees who wear black gowns can escape accountability for their civil rights violations, juries should have the opportunity to hold accountable immigration judges, along with the rest of the thugs in that gang.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Immigration Court Agency, Homeland Security, and Private Guards Sued for Civil Rights Violations

On April 19, 2010 guards followed an unlawful order to remove me from the Atlanta federal building housing the immigration courts.  Documents obtained under the Freedom of Information Act (FOIA) show that in the months following this, supervising employees of the Executive Office of Immigration Review (EOIR) and the Federal Protective Services (FPS) tried to cover up these events, in particular, to disguise the fact that the order to remove me while I was engaged in court observations for findings reported in The Nation magazine and scholarly publications came from the immigration judge William Cassidy, the same individual reported for the first time on this blog as having deported U.S. citizen Mark Lyttle.

On April 18, 2012, I filed a complaint in the United States District Court in the Northern District of Georgia, Atlanta Division charging violations of the First, Fourth, and Fifth Amendments to the United States Constitution (Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics), and False Imprisonment, Assault, and Battery.

Summons were executed and immediately sent to the appropriate agencies for service on Defendants Eric Holder, Attorney General; Juan Osuna, Director, EOIR; Fran Mooney, Assistant Director for the Office of Management Programs, EOIR; MaryBeth Keller, Assistant Chief Immigration Judge, EOIR; Gary Smith, Assistant Chief Immigration Judge, EOIR; William Anthony Cassidy, Immigration Judge (EOIR); Cynthia Long, Atlanta Court Administrator, EOIR; Darren Eugene Summers, FPS; Inspector DOE, FPS; Paragon System, Inc. Guard DOES 1-4; and Paragon Systems, Inc.

The complaint relies on a contemporaneous transcript of a Paragon Security Systems, Inc. guard's call to the FPS Battle Creek Michigan MegaCenter, obtained pursuant to a FOIA request.  That call, and 423 pages of e-mail to and from EOIR public affairs attorney Lauren Alder Reid, shows that the EOIR was closely monitoring my movements among immigration courts nationwide and had convened to discuss "banning" me from hearings following my reporting for articles in The Nation magazine that resulted in a 2011 Project Censored awards for number four out of  the Top 25 Censored Stories in 2010.

In addition to detailing unlawful closures of hearings and cover-ups of this on two occasions by William Cassidy, Cynthia Long, MaryBeth Keller and Gary Smith, all EOIR employees, the complaint details numerous violations of judicial procedures for the purpose of highlighting the unlawful practices that the DOJ was attempting to hide.

According to the complaint:

125.  On April 13, 2010, a desk clerk working at the immigration hearing rooms in the CCA facility at Lumpkin, Georgia sent the following message to court administrator Ray Bethune:
"Subject: Problem...
Ray- That reporter woman is back and being argumentative about being allowed in the Courtroom.  The courtroom is full! 97 detainees.  We are suggesting that she wait until we do that mass removal and then allow her in.  She refuses to take no for an answer.  She is arguing with Sgt Perry also.  Any suggestions on how to handle this?" (EOIR FOIA 2010-12055, p. 315, received January 9, 2012 in response to Plaintiff request of June 3, 2010)
    126.  "Mass removals" are not lawful under EOIR or any other DOJ procedures.  According to the Immigration Judge (hereafter IJ) Benchbook: "[A]ll salient points discussed in the non-detainee setting must be covered in the detainee setting as well. In the detainee setting, it is important to get individualized answers from each respondent to important matters."
    127.  The windowless room in which the 97 people may or may not have heard their names called, and may or may not have heard and understood they were all being ordered removed, at all times relevant to this complaint  had a seating capacity for approximately 24 people. 
    128.  Plaintiff has been physically present in that room.  Based on information and belief, the immigration judge running that hearing was J. Dan Pelletier.  Based on information and belief, it would be impossible for Pelletier, reciting his script from a dais in an Atlanta court room and observing the Lumpkin hearing room via televideo, to have visually discerned individual respondents, much less engage each of them in any meaningful exchange. 
    129.   Mass hearings of any sort are not consistent with judicial procedures.

 The complaint states that the same absence of judicial conduct that harms respondents means that immigration judges may not claim the sovereign immunity from lawsuits available government officials who engage in truly judicial conduct.

Speaking of Lawsuits Filed by U.S. Citizens Falsely Imprisoned by ICE......

Exerpt from November 14, 2011 U.S. Judge Magistrate's advisory decision denying most of the government's Motions to Dismiss Mark Lyttle's lawsuit

In response to the post last week about the government's false imprisonment and kidnapping of Esteban Tiznado, a reader posted a comment suggesting lawsuits are in order. Indeed.

Thankfully, people are filing these, and a recent judge magistrate's advisory decision out of North Carolina provides encouragement.

------------------

ANTHONY CLARKE'S LAWSUIT

As reported by Paul McEnroe in the Star-Tribune, Immigration and Customs Enforcement agents and attorneys shuttled Anthony Clarke among various immigration jails for 43 days, even though they had clear evidence of his U.S. citizenship.

The lawsuit filed on his behalf by Angela Bortel begins:

Plaintiff Anthony A. Clarke is a citizen of the United States. Notwithstanding that objectively verifiable fact, officer[s] of the United States Immigration and Customs Enforcement ("ICE") directed the unlawful arrest and detention of plaintiff in immigration custody...

The individuals named as decision-makers in Clarke's arrest and imprisonment are Special Agent Ulrich Palmer Denig, Special Agent Brenner Jennifer Skwira, and ICE Chief Counsel Barry Chait, Deputy Chief Counsel Ann M. Tanke, Assistant Chief Counsel Daniel Pornschloegl, and Assistant Chief Counsel Daniel Hetfield.

UPDATE ON MARK LYTTLE'S LAWSUIT

In October, 2010, Mark Lyttle, represented by Troutman and Sanders and the ACLU, filed lawsuits in North Carolina and Georgia.

On November 14, 2011, a judge magistrate in North Carolina issued the first substantive ruling, albeit advisory, on the merits of Lyttle's case. The governments motions to dismiss were largely DENIED and, if the federal judge responsible for the final ruling on this matter follows the advisory ruling, Mr. Lyttle should have his day in court.

In a 30-page advisory opinion, U.S. Magistrate Judge William Webb writes in response to the government's Motion to Dismiss due to the discretionary character of duties assigned to those responsible for deporting criminal aliens: "[T]his analysis ignores one crucial fact: these statutes give immigration officials the authority to detain 'aliens', and Plaintiff is not an alien."

Meanwhile, Esteban Tiznado, following ICE agents refusing his plea for an immigration hearing to present evidence of his U.S. citizenship, is penniless, homeless, and desperate in Mexico. Is it really the right policy choice for the government to deport anyone agents unfettered by public or agency scrutiny decides to deport and then dip into taxpayer funds to pay-out the few fortunate enough to make it back and find gutsy lawyers willing to take on a major bureaucracy happy to spend our money to defend its lawbreaking? When is the Department of Justice going to step up to the plate and start charging these agents and attorneys with false imprisonment and kidnapping?