The Theory and Practice of Immigration Detention Workshop: Some Comparisons

Manor Road Building, site of Friday's detention workshop

Last Friday (May 21) two Oxford University graduate students -- Stephanie Silverman (Politics and International Relations) and Evelyn Massa (Sociology) -- hosted an unusually fabulous workshop, The Theory and Practice of Immigration Detention.

It turns out that Oxford has three vibrant centers devoted to immigration studies: The Refugee Studies Centre, The Centre on Migration Policy and Society (COMPAS), and the International Migration Institute. Drawing on the support of the first two, Ms. Silverman and Ms. Massa brought together researchers and advocates from across Europe to present cutting-edge findings.

A few tidbits I thought especially interesting:

1) No Detention Regulation in England = Guards Committing Assault.
In response to my mentioning during a Q and A that the U.S. holds people in immigration jails without any regulations, an eminent British immigration rights lawyer, Frances Webber, took me aside during a break and described a similar discovery she had made in 1997, following upheaval at the Campsfield detention center, just outside Oxford. The government was charging the people in their custody with various crimes associated with a riot.

Not only did the video footage reveal it was the guards who had been smashing the televisions (and the people in the centers) but the lawyers asked the government, how, absent regulations, could the government use any force at all?

Without regulations, Ms. Webber explained to the government attorneys, any use of force by a guard constituted an assault. The government lawyers' tacit agreement with this observation was suggested by the fact that they quickly drafted regulations authorizing, and also constraining, the government's use of force in immigration detention centers.

(Also, the prison industrial complex from the US is alive and well in England: the UK's Campsfield web page lists the The GEO Group Ltd as the center's contractor; the GEO Group is also a contractor for many of the large ICE facilities.)

2) Differentiated Detention Centers.
In the U.S., Immigration and Customs Enforcement (ICE) houses people from various criminal backgrounds in the same jails and people are distinguished within them by different colored uniforms and may or may not be segregated into different sleeping areas. This system seems designed to maximize the flexibility of bed space.

In the UK, there are different levels of detention security and these vary by criminal background. In all the centers, the visits are open, not via telephones across windows, and the guards control movement by affixing wristbands to the visitors.

Some facilities are "open" so that the detained may come and go, and even at the closed facilities, people wear their own clothes. Also, at all facilities in England people may use their own cell phones and the internet.

Not surprisingly, escapes happen. But England seems willing to tolerate this as the price of avoiding collective punishment, the effect of housing noncriminals in the conditions of penal incarceration, and worse, used in the United States.

(Joseph Anderson, someone who appears to be a US citizen and has been held at the Arizona Pinal County Jail by ICE for over two years, recently told me that in the same jail people with criminal convictions have outdoor recreation each day but those in the ICE wing are lucky if they are allowed out for an hour once a week.)

3) UK Bribes Foreign Governments.
A lawyer who testifies as an expert witness on behalf of Iranians fearing persecution if they return told me that he had recently prevailed in a FOIA request and learned that the UK was paying Nigeria 250 Euros per deportee for the purpose of obtaining travel documents. Another participant mentioned an individual who was seeking asylum from Somalia and had originally entered with Gambian papers. Despite no connection to Nigeria, the UK deported him there.

4) Less Transparency in the U.S.
England has a Freedom of Information Act but the courts there are much more likely than they are here to defer to the government's reluctance to release policy or statistical information.

For instance, the government's response to a Parliamentary inquiry was to assert "diplomatic relations" as an excuse not to release data on the numbers of criminals with life sentences being deported to respective countries:

Mr. Grieve: To ask the Secretary of State for the Home Department how many prisoners from (a) Ireland and (b) each other European Economic Area country serving mandatory life sentences have been deported or removed in each of the last five years. [320071]

Mr. Woolas [holding answer 2 March 2010]: Since 2007, the UK Border Agency has removed or deported over 15,000 foreign national offenders. Of those removed or deported, less than three in every thousand previously served a mandatory life sentence.

Information from before this period could be obtained only by reviewing individual records. This would be a disproportionate cost.

As a general rule, it is our policy not to disclose the volume or characteristics of those removed to specific countries as it would jeopardise our diplomatic relations.

The above is quoted from a Parliamentary web site that contains other interesting exchanges on British deportation practices.

If you want more information on UK deportation data, this is the government website with that information.

Presentations.
The presentations ran the gamut and without striking a wrong note, from applying Giorgio Agamben's theories to Italian detention centers (rumored to be Europe's worst) to a British physician's grim and thorough review of detainee medical care. The presenters and their talk titles are here.

(Also, I just learned that "run the gamut" refers to the medieval scale, which is pretty perfect for presentations about medieval government practices. Here's what the American Heritage Dictionary says:

[Middle English, the musical scale, from Medieval Latin gamma ut, low G : gamma, lowest note of the medieval scale (from Greek, gamma; see gamma) + ut, first note of the lowest hexachord (after ut, first word in a Latin hymn to Saint John the Baptist, the initial syllables of successive lines of which were sung to the notes of an ascending scale CDEFGA: Ut queant laxis resonare fibris Mira gestorum famuli tuorum, Solve polluti labii reatum, Sancte Iohannes).])

Let's Drink to That!

After the workshop a bunch of us headed off to a nearby pub, The King's Arms (absolutely incredible fish and chips!) and I was able to hear more about the really interesting research the graduate students are doing, including in-depth case studies of foreign nationals in England's prisons undertaken by a U.S. student who hails from Legal Aid work in New York City. (It appears as though there is a lot more fluidity between the criminal and immigration incarceration policies compared with the U.S. For instance, in the U.K., failing to cooperate with an immigration investigation by, say, not providing fingerprints, can put you in prison for a year, whereas here it would typically lead to more time in detention.)

Another student is writing about how liberal theory does and does not accommodate practices of immigration detention, a study that is path-breaking in that takes as a conceptual problem an important but heretofore marginal fact for political theorists. Placing the nitty-gritty details of immigration policy at the center stage of serious theoretical research is absolutely the right move for advancing scholarly and public discussion of our barbaric practices.

It was clear from those conversations as well as a meeting the previous week with Professor Engin Isin (editor of the journal Citizenship Studies) and conversations with Professor Matthew Gibney and his students on Wednesday at Oxford that citizenship studies, if not immigration studies, in England are producing a lot more interesting research and analysis than on this side of the pond. One thought among my colleagues was to blame this on U.S. political science, which kills any interesting subject before it can be examined in real life; that actually seems right to me.

Citizenship studies requires developing heuristics and thinking about history and narrative; political science departments in the U.S. are terrible at this. The best scholarship on this topic in the U.S. is from law professors or those in legal studies but that has different constraints.

Finally, one disappointment was that Engin had told me Agamben's influence had diminished in England but at least two presenters relied on his work quite heavily. Happily, others were eager to wrestle with Agamben's work.
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Oh, my own contribution to the workshop was a Powerpoint presentation of my data on the detention and deportation of U.S. citizens. The information will appear in a forthcoming issue of the Virginia Journal of Social Policy and the Law. The article is pithily titled "U.S. Government Illegally Detaining and Deporting U.S. Citizens as Aliens."

I showed a photo of the ICE office in Cary, North Carolina that held Mark Lyttle, but forgot to mention that it was adjacent an Oxford University Press printing plant.

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correction, thursday: the original post misspelled Engin Isin's name. It's now corrected. Also, he has a really wonderful website, including a lovely "about" description, the updated version of W.E.B. Du Bois's version of Dusk of Dawn: An Autobiography of the Concept of Race. Engin's is an autobiography of the concept of the cosmopolitan.

May 19, 2010 Talk at Refugee Studies Centre, Oxford University

In about a week I will be giving a public lecture at the Refugee Studies Centre at Oxford University.

According to the Centre website, "Seminars will take place at 5.00pm on Wednesdays, in Seminar Room 1, Oxford Department of International Development (QEH), 3 Mansfield Road, Oxford (OX1 3TB). "

The title is "States Without Nations: The Future of Free Movement." Copies of States Without Nations: Citizenship for Mortals will be available at Oxford Blackwell on Broad Street.

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For those interested in the status of the investigations into William Cassidy and his gang at the Atlanta immigration courts: I have contacted the appropriate agencies and am consulting with civil rights experts. It will be interesting to see how this experiment in the rule of law works out.

Also, I am very happy to announce that I will be joining the Political Science Department at Northwestern University.

Atlanta Immigration Judge Sics Guards on Professor/Writer Who Revealed Improprieties

ABLE, an interfaith group that does court observing, holding a vigil in front of a building housing the Atlanta Immigration Courts and ICE
 

 UPDATE (May 6, 2012):  On April 18, 2012,  I filed a lawsuit against 9 named individuals.

"Unbelievable," "incredible," "crazy" are frequent responses to the story of how Mark Lyttle, born in North Carolina, was illegally ordered deported to Mexico on December 9, 2008 with the imprimatur of William Cassidy, a former ICE attorney who presides as an immigration judge over hearings for people detained in southern Georgia. He is employed as an attorney by the Executive Office of Immigration Review (EOIR), an agency in the Department of Justice (DOJ).

Similarly surreal, unreal, too real, calling to mind Alice as well as Kafka, were the events on Monday, April 19 at the Atlanta federal building on 180 Spring St. SW, where a phalanx of private security guards stormed the waiting room where I was writing notes on Mr. Cassidy's most recent bizarre behavior, discussed below. A private security guard told me I had to leave. I asked him why. Backed by others in his gang, he repeated his "order" and then he took out hand cuffs.

(It's a LONG story, but the punchline is fairly simple: Many but not all employees of EOIR and ICE have no interest in the rule of law; when folks try to hold them to account, they lash out. Both EOIR and ICE are grumpy about me writing on behalf of the U.S. residents whose rights the government is violating. The only thing surprising about the events described below is that Mr. Cassidy's character behaves in ways that are too cliched to be easily believable. And yet...)

I had a plane to catch and decided to go along with the young thugs in front of me. I walked out of the waiting room and asked the guy doing the talking for his name. "Officer Out the Front Door," he replied. As I turned, still walking, to look at his name tag on his right side he twisted away to hide it from my view, placed his hands on me and forced me to walk more quickly, suggesting more force if I paused to examine his identification more carefully. (The building is full of cameras and I have requested Federal Protective Services (FPS) preserve relevant video.)

(The name tag that he was trying to hide said T. Hayes or Hays; an Atlanta supervisor for Federal Protective Services (FPS), a branch of Department of Homeland Security (DHS) that handles security for federal buildings, told me the company handling security at the site is Paragon Systems.)

Hayes shouted to additional guards in the lobby that he was acting at the behest of Mr. Cassidy: "Judge Cassidy wants her out of here! He wants her out of the building!"

But Lauren Alder Reid, Legal Counsel for the EOIR's Office of Public Affairs explained to me that same day that as an employee of the DOJ, Mr. Cassidy has no legal authority over employees of the DHS.

Oops.

I guess a guy deporting a U.S. citizen without authority might not be so squeamish about ejecting a court observer from a federal building without authority.

Atlanta Immigration Courts: "The Worst in the Country."
Mr. Cassidy has a long record of poor judgment and unlawful actions reaching back to the 1990s. I have published some of this information; he knows I have more. In addition to deporting Mark, Mr. Cassidy has held at least one ex parte conversation with an ICE attorney in which he said he would rule against a respondent even though he thought this would be overturned, filed baseless retaliatory complaints against immigration attorneys, failed to record hearings properly, backdated a court record, accepted into evidence materials that have not been served on both parties, and unlawfully closed proceedings to Mark and me in October on the strength of a lie conveyed by the court administrator, Cynthia Long, who said she was acting on the instructions of "the ju" -- and then stopped, apparently attempting to keep this a secret.

It was Mr. Cassidy's email to Jennifer Barnes in the EOIR's Office of General Counsel in late April, 2009, contemporaneous with Mr. Cassidy vacating his deportation order following Mark's return, that cemented my view of Mr. Cassidy as a classic bully, someone who kisses up to those who have power and influence, including certain Atlanta immigration attorneys, and kicks down those who do not--and I wrote as much in an affidavit that was copied to Mr. Cassidy in a case involving what I considered a frivolous, baseless, irrational misconduct complaint he filed and that the state bar to which it was referred closed without taking any action.

(Mr. Cassidy claims Mark was silent about his U.S. citizenship during the master calendar hearing, while Mark, who had never been in an immigration court before, offered in our first conversation, within days of his return, a very detailed narrative of their exchange and that of others in Mr. Cassidy's court, none of which are on the digital audio recording (DAR) Mr. Cassidy is charged with maintaining; instead the DAR has obvious stops and starts with the intervening conversations not recorded. Instead of letting the EOIR investigate a deportation order that appears to display at best gross incompetence, Mr. Cassidy wrote an absurd complaint against an attorney who had nothing to do with the events in Mr. Cassidy's court room the day he deported Mark as a vehicle to assert to the EOIR upper brass that Mark never spoke up.)

The EOIR, in addition to tolerating Mr. Cassidy's persisting in conduct violating federal regulations, the Immigration Practice Manual and the Immigration Judge Benchbook, also has failed to admonish the Atlanta EOIR for requiring the public to "check in" before attending court hearings, an unauthorized restriction on court access that my interviews with observers as well as my own experience demonstrates has been abused to close hearings that should be open to the public. EOIR Public Affairs Officer Susan Eastwood told me last October that it is not EOIR policy for visitors to "check in" before they may attend hearings.

Moreover, the Atlanta EOIR court office appears to have committed document destruction, a violation of various policies not to mention the Freedom of Information Act. In order to document that Ms. Long and Mr. Cassidy were unlawfully closing his hearings I requested a copy of the docket the day I was turned away, by filing a FOIA request.

Only one of the three cases appearing on Mr. Cassidy's 1 pm docket posted in the waiting area October 7, 2009 appeared on the docket printed on December 16, 2009.

The cover letter, dated January 25, 2010 (far beyond the FOIA deadlines for a request submitted mid-October, another symptom of EOIR trying to cover up or delay exposure of misconduct) states: "Please be advised that the original Immigration Court calendar could not be located. However, the enclosed Immigration Court calendar was obtained from the Immigration Court database."

Each court's dockets are maintained in a computer database whose output may be accessed in Washington, D.C. and the local court. A court administrator elsewhere told me that the only way to explain the disappearance of the two cases would be if someone in the Atlanta EOIR office deleted these, a procedure this employee said was technically "easy." (EOIR staff elsewhere have noted different examples of incompetence on the part of the Atlanta court, including a failure to send files in a timely fashion after venue has been changed, leading to delays and confusion. One employee told me, "They're the worst." The Atlanta EOIR staff appear to be spending so much time chasing out the public and covering up misconduct that they are unable to perform basic tasks like sending files.)

When he is in court, Mr. Cassidy still fails to perform the duties of an immigration judge. He does not record significant portions of hearings, fails to note which portions are on and off the record, and does not summarize off-the-record exchanges when going back on the record--all required by the Immigration Judge Benchbook. He also fails to provide the name of the interpreter at the beginning of each proceeding. (The Immigration Judge Benchbook is online and is the EOIR's helpful response to critics who were pointing out the poor habits of some immigration judges. The fact that Mr. Cassidy and EOIR attorney and administrative judge Dan Pelletier (another former ICE trial attorney), also in Atlanta, fail to follow what is basically a script that any high school student could read suggests their disrespect for court rules and respondent rights are deeply ingrained; the EOIR clearly needs to do more than lead these horses to the water.

Other Peculiarities for those in Mr. Cassidy's Court
Most of the morning was taken up with bond hearings, an occasion that allowed for interesting insights by the ICE trial attorney (located in Stewart) into Mr. Cassidy's approach to full hearings. He repeatedly told attorneys he would not negotiate bond because their motions did not include attachments with ten years of income tax returns and, absent these, Mr. Cassidy had a categorical policy of denying relief. Since the ICE attorney was so certain that Mr. Cassidy would deny relief without considering any other factors, the ICE attorney was opposing bond.

(Bond is possible for those in ICE custody as long as their imprisonment is not ordered by Congress -- "mandatory detention." Whether an ICE attorney goes along with this will depend on various factors, including the possibility of relief from being deported, either on the merits of the order or because the immigration judge may use discretion and grant relief; the trial attorney's claim on Monday was that absent ten years of income tax returns, relief in Mr. Cassidy's court would be impossible. Like other actions in immigration court, ICE has more power in this matter than the immigration judge: if the judge orders bond and a family has the funds, ICE can continue to hold the respondent in custody pending an ICE appeal of the immigration judge's order, effectively nullifying the whole point of a bond. Therefore, it is effectively ICE, not the immigration judge, setting bond for those in ICE custody.)

The ICE attorney's rationale for denying bond violates a due process expectation that a bond hearing is different from merit hearings; if the trial attorney were in fact correct in surmising that Mr. Cassidy would never consider relief absent ten years of tax returns, this is a pretty grim summary of Mr. Cassidy's judicial temperment. But unless the ICE attorney expects respondents to know of Mr. Cassidy's strange proclivities on this point, legally available routes for relief should be sufficient to induce respondents to attend a future hearing and hence weigh on the side of granting bond.

By second-guessing the respondents' mindset when faced with a judge who writes his decisions by-the-numbers and not individual circumstances--what if the tenth year were not filed because the respondent was suffering from an injury sustained after carrying NY fire fighters from the World Trade Center?--the ICE trial attorney forecloses the opportunity for such a respondent to appear in court (not by televideo) during the full hearing and present his case as a full human being, not a blurry monitor figure in orange uniform, or grey, if the monitor is not fully working.

(The morning televideo feed was in black-and-white--a poor image drawing notice by an attorney once it was observed that Mr. Cassidy was receiving affirmative responses to a voluntary deportation order by someone other than her client; the individual he believed he was addressing had actually left the room. The interpreter later said to the attorney that she had remained silent despite noticing the switch because Mr. Cassidy 'tells me to stop interfering so much.')

For the record, when he returned to the court room following one of these discussions Mr. Cassidy affirmed that the ICE attorney had accurately represented his rigid requirement for ten years of income tax returns.

More On Mr. Cassidy and his Gang
Other than to tell me that DOJ employees have no authority over DHS employees, EOIR's Ms. Reid, on behalf of Mr. Cassidy, provided no account for his rounding up his pals at Paragon. Mr. Cassidy also has not replied to previous telephone and email messages seeking comment on his deportation of Mark and the events in October.

The immediate trigger for Mr. Cassidy's ordering private guards to have me removed appears to be an exchange we had shortly after 3 pm. I was the sole observer as he left the bench and, out of the camera's line of vision, walked toward me and asked me to leave. I asked him why. He said he had the authority to close hearings. I said that immigration hearings were generally open to the public subject to certain exceptions. I asked him if the respondent had requested a closed hearing. He said "No, the respondent is pro se," meaning without an attorney.

Mr. Cassidy also said he could order me removed. I asked if he would give me a reason for why he was closing the hearing. He thought for a few seconds and then said, "No," and told me he was getting the regulation on closing hearings and that I should wait. I told him I was familiar with the regulation. He nonetheless left the court through the rear exit.

Concerned about his implied threat earlier and also not interested in continuing this exchange I told the interpreter and administrator that I was going to the front office and that if the respondent happened to have understood what was happening and wanted me back, I would be there. The entire episode occurred in about 90 seconds.

The reason I was concerned about the respondent is that Mr. Cassidy, according to Syracuse University TRAC analysis, has among the highest rates of denying asylum applications in the country. For 2004 through the end of 2008 he denied 88% of asylum applications, compared to 57 per cent nationwide; in 2008, the most recent year for data, the TRAC chart appears to indicate that he denied 100% of asylum applications.

The regulation and rules allowing judges to close hearings to protect respondents in asylum applications are for the purpose of protecting people from retaliation by government agents from their home countries. Mr. Cassidy's high rate of denials suggests that in Mr. Cassidy's court, the respondents may have more to fear from him as an agent of the U.S. government than an undercover agent from Burma hiding behind court benches, for example.

The relevant rule in the Immigration Practice Manual states:

Evidentiary hearings involving an application for asylum or withholding of removal (“restriction on removal”), or a claim brought under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, are open to
the public unless the respondent expressly requests that the hearing be closed. In cases involving these applications or claims, the Immigration Judge inquires whether the respondent requests such closure.

At no point did Mr. Cassidy include either the ICE attorney or the respondent in this discussion. He certainly did not inquire whether the respondent requested a closed hearing.

In the front office I spoke with Ms. Long's replacement for the day, Marion Crosby. I told her what had transpired. She left, then returned and informed me that this was indeed an asylum hearing. (The Stewart docket is posted at that location, and is not available in the Atlanta EOIR front office so I was unable to verify this.)

Ms. Crosby and I had a conversation about whether discretion in closing a hearing entailed legal reasons being provided contemporaneously. Since the DOJ has interpreted the regulation on public access to require a respondent's assent to closing an asylum hearing, it appears that Mr. Cassidy simply broke a rule. If he in fact were weighing other factors, then he needs to state these. The regulation does not authorize immigration judges evading all accountability, especially an EOIR attorney with the record of Mr. Cassidy.

Fortunately, a real federal judge (see below) has ruled on this question. Here's what Sixth Circuit Judge Damon Keith wrote when the EOIR tried to block the press from attending so-called deportation cases in immigration courts by invoking a "special interest" exemption and claiming the same broad latitude Mr. Cassidy was asserting:

Today, the Executive Branch seeks to take this safeguard away from the public by placing its actions beyond public scrutiny. Against non-citizens, it seeks the power to secretly deport a class if it unilaterally calls them "special interest" cases. The Executive Branch seeks to uproot people's lives, outside the public eye, and behind a closed door. Democracies die behind closed doors. The First Amendment, through a free press, protects the people's right to know that their government acts fairly, lawfully, and accurately in deportation proceedings. When government begins closing doors, it selectively controls information rightfully belonging to the people. Selective information is misinformation. The Framers of the First Amendment "did not trust any government to separate the true from the false for us." Kleindienst v. Mandel, 408 U.S. 753, 773, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972) (quoting Thomas v. Collins 323 U.S. 516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (Jackson, J., concurring)). They protected the people against secret government.

The decision as a whole is a great read, and demolishes the claims shared with me by Ms. Reid and Ms. Crosby that an immigration judge has unreviewable discretion to close hearings without providing a reason. (From the decision above, e.g., "... the Government contends ... Congress took the INS's discretion away for exclusion hearings and specifically gave them discretion to open or close deportation hearings. We find the Government's reading unpersuasive.")

Coda
On Tuesday afternoon I spoke with FPS Central District Commander Darren Summers. FPS is the DHS agency that contracts with the Paragon guards. After quizzing me on why I was "hanging out" at the immigration courts and asking who had "detailed" me to Atlanta for my research, Mr. Summers told me the guards had responded to an "order of a federal judge." Mr. Cassidy is not a federal judge but an administrative judge. I told Mr. Summers that Mr. Cassidy was employed by the DOJ and asked him how an employee of the DOJ could have authority over employees of the DHS.

Mr. Summers, his voice dripping with condescension, said that I needed to do more research, as this would show me that "immigration courts are part of the Department of Homeland Security."

This statement, so indecorous as to ignore the thin legal veil between EOIR and ICE, is also pretty awesome for illustrating the actual overlapping personnel and missions of the EOIR and ICE. (Three of the four EOIR attorneys in Atlanta are former ICE trial attorneys.) This blurring of legal authority between DOJ and DHS has consequences far more harmful than wrongfully removing a scholar/reporter from a building and committing battery.

It pervades the atmosphere in which EOIR attorneys are rubber-stamping ICE attorneys' claims that are demonstrably lies and evidence of agent misconduct, including faked fingerprint reports, false assertions on ICE arrest reports, and illegally hiding exonerating evidence from respondents' and their attorneys.

Most immigration judges, especially those who oversee hearings for non-detained populations, follow the rules and suffer the consequences of being overworked and underappreciated for their judicial temperment. Immigration judges with whom I've spoken mention only quantitative, not qualitative assessments, and believe that all EOIR HQ notices is their pace of hearings, and not the quality of their decisions. The fact that EOIR has continued to employ Mr. Cassidy, and colleagues who also show a long record of ignoring rules and regulations--more on others later!--seems to confirm this assessment.

The actions initiated by Mr. Cassidy violated not only my civil rights, but are also a crime. Under Georgia law, misdemeanor simple battery is when an assailant "Makes intentional contact of an insulting or provoking nature with the person of another," which is a great definition of what happened. Mr. Cassidy appears to be running a criminal gang, one that is using force and threats of force to harm the public. I have asked FPS to retain a copy of the video and I have been in contact with the Atlanta police exploring the possibilities for filing charges.

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UPDATE, Monday, April 26: thanks so much for the comments (below) supporting filing criminal complaints against the guards and William Cassidy. I'd like to do this but am not in Atlanta. My understanding from the Atlanta police is that an attorney would need to file an affidavit written by me at a downtown office. If there's someone in the Atlanta vicinity willing to help out with this, please shoot me an email: jstevens AT law.berkeley.edu
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(The photo is a vigil organized by Atlantans Building Leadership for Empowerment in front of the building from which I was removed. In addition to the immigration courts, it houses DHS agencies including ICE and FPS.)
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Correction 4/27/10: The original post said of Mark's comments to me on April 24, 2009, "Mark, who has never been in an immigration court before..." This was a mistake I just caught. It is corrected to read "had" since Mark has come with me to immigration court hearings in Stewart on a few occasions in 2010, long after the account he gave and I posted two days after he returned. You can read that here.

New York City Resident and ICE Officer Attacked by Mentally Ill Man in Varick: ICE Attempts Coverup

Journalists have been sharing stories about the illegal and inhumane treatment of people with mental illnesses by Immigration and Customs Enforcement employees for several years. The problems range from suicide and suicide attempts to tortuous levels of anxiety for those in their custody to wrongfully rendering U.S. citizens stateless. (For more on ICE's unlawful imprisonment and mistreatment of U.S. citizens with mental illnesses, see "Thin ICE.")

People whose demons make life hard if not impossible to navigate not only suffer uniquely, but may pose special threats to those confined in their proximity, including ICE officers. In January and February New York residents and employees at the ICE lock-up on Varick Street in lower Manhattan were traumatized by this first-hand.

According to former Varick inmates, one man was persistently masturbating openly, and another had fixated on the idea of brutalizing another Varick inmate, Chao Chen, and set about doing just that, but only after he assaulted a female ICE deportation officer. (She was dissuaded from sending the assailant, H.Y., to jail by those in his pod who said he was mentally ill; by ignoring earlier complaints ICE and Ahtna Technical Services -- the private security firm managing Varick -- appear to have negligently exposed her to hazardous working conditions.)

According to Queens resident Chao Chen, private security guards and an ICE officer had first-hand knowledge that a man who was demonstrably violent was being held with the general population, but no one acted until after Mr. Chen was beaten, after which ICE tried to cover this up.

Chao Chen Stalked and Beaten
Following several days of verbal threats and feints with a ball point pen that was taken away, at 2:30 a.m. on February 2, H.Y. waited in the dark on an empty bed, #155, on the far side from where he was supposed to be. A grievance written by the occupant of bed #156, B.D., states that he was disturbed by H.Y.'s menacing presence and asked him to return to his own side of the room. H.Y. told B.D. that "he wants to attack Mr. Chen Chao, who was sleeping at that time" in bed #158. H.Y. offered noodle soup to the occupant of bed #125 to "help him beat up Mr. Chen Chao, which he refused," B.D. wrote, "and told him to stop acting crazy."

That night the occupants of B-1 were able to protect Mr. Chen from H.Y., who went back to his bed. But later that same day, after lunch, H.Y. lunged and stomped on the bed of the napping Mr. Chen. When he turned toward the noise, H.Y. began ferociously punching him in the left eye. Through a translator, a friend whom he had met at Varick Street, Mr. Chen described how others described the beating to him, "According to a witness, it seems like he had a rush of blood and just ran over and attacked." He began moving his fists up and down rapidly and said this went on for about ten seconds, "My eye was very swollen, like a panda."

(Mr. Chen's friend, Huck, is in his fifties, and speaks nostalgically of the olden days, including his time in Europe, when all you needed to travel between countries was some cash and legs strong enough to land the jump from a ship to a harbor boat. He was carrying a New York Times and spoke with disgust of the increase in deportations under President Obama, whom he described as "an empty vessel." Both he and Mr. Chen are waiting for work permits before resuming jobs in the restaurant industry. Mr. Chen was brought to Varick last June by New York City Police. When I asked him why he was stopped he said, "It was late, 11:30, and they saw me parking." I asked if the police gave him a ticket and he said no. Instead the NYPD was doing the work of ICE. Mr. Chen was released on ICE parole and had missed a 2005 meeting; this showed up when the NYPD ran a check on him.)

Mr. Chen said he and others at Varick were angry because everyone knew H.Y. had a mental problem: "Everybody was nervous because it was obvious he was dangerous and had a problem because he would walk on people's beds with his shoes." Even after the incident, Mr. Chen said that others conveyed that "Lt. Smith went to B-1 and told everybody that they did not have space to keep [H.Y.] in isolation and that it wasn't their problem." Shortly after that, H.Y. was gone.

Chunyu Jean Wang, Mr. Chen's attorney, is upset, "He was sleeping and attacked by a mentally incapacitated person who should have been isolated. ICE is responsible for [Mr. Chen's] safety, but as a result of what they did there was bruising to his eye, which was blind for a few days."

Dirty ICE
The events above were unfolding just before ICE relented to pressure from the ACLU and escorted me on a February 16 tour of the Varick facility, the very day ICE released Mr. Chen.

Based on reports that ICE deportation officers at Varick were holding people without authority by not meeting with Varick inmates and thus not following up on new legal documents, I asked about specific incident of an individual who said his deportation officer had not seen him in three weeks. ICE New York Field Office Director Christopher Shanahan, who has an office in the same building as the ICE prisoners, denied this was possible, "We wouldn't want to put someone in a dorm and leave them there. That's not good for them or for us." And yet Mr. Chen was held months beyond when he should have been released and went for long stretches without seeing his deportation officer.

Moreover, the tour guides' eagerness to emphasize the quality of their medical and psychological care seemed excessive and compensatory. Dr. Peter Dorazio told me that everyone had a psychiatric exam within 12 hours of being admitted, but didn't mention that he had recently read a report on Mr. Chen's attack and assailant indicating these tests were either inadequate or ignored.

The week before another Varick inmate had told me a version of the story I later heard from Mr. Chen himself. When I called Mr. Shanahan after the tour to ask follow up questions I mentioned this attack. I had some of the facts wrong but the basic outline was correct. Instead of explaining the incident fully, Mr. Shanahan categorically denied that anything resembling what I had described had happened. I asked whether, if something like this had happened, he would have been informed or whether I should follow up with someone else . He said that had anything like this he certainly would have known about it, and discouraged me from making further inquiries.

By the time Mr. Chen contacted me, the information was too late for inclusion in The Nation Comment I wrote about ICE's lawless refusal to regulate its detention operations.

The bureaucratic follow up noted on Mr. Chen's complaint states: "Referred to CSS and Dr. Dorazio on 2/4/10." (I am unfamiliar with Christoper Shanahan's middle initial, if any, and it may not be "S.")

In a recent email responding to my questions, Mr. Shanahan did not confirm or deny that his initial is "S" or that he had been notified of these events.

Again, the underlying problem is not Varick or even Mr. Shanahan but Secretary of Homeland Security Janet Napolitano's failure to obligate ICE detention operations to the rule of law, itself delusional reckless behavior threatening to different degrees the safety of the mentally ill, and everyone else in ICE detention operations -- those with shackles and keys alike.

It is likely that Mr. Chen will be filing a lawsuit and that ICE will settle it for an undisclosed amount. This is not justice but stupidity, the biggest dunces being the U.S. public who are eager to toss billions of dollars to government and private security, militarized borders, and payments for kooky practices instead of reaping the benefits of free movement. ICE and before that the INS have been happy to use the taxpayer's checkbook to fund their thuggery.

INS Agent Willie Witt Cost Taxpayers Big Bucks
An experienced San Francisco Bay Area attorney pointed me to the numerous lawsuits in the 1980s against INS because of agent brutality, and mentioned one in particular, Willie Witt, Jr., was a special problem:"[INS] kept promoting him. It cost them hundreds of thousands of dollars in lawsuits. But they just kept paying out the lawsuits and promoting him."

A quick google and Lexis search confirms these observations. A 1989 article in the Los Angeles Times describes a trial against INS for failing to punish employees for abuses:

Despite repeated allegations of misconduct, the INS has investigated only one allegation of misconduct during a factory raid since 1982, said Steven A. Brick, an attorney for the plaintiffs. During that period, no INS agent was disciplined for violating the rights of the accused, he said.

The article continues to describe the single investigation during this period:

The sole investigation involved actions of one agent at Modern Mode Inc., a furniture factory in the Alameda County city of San Leandro. About 20 INS and Border Patrol agents arrived on the morning of July 20, 1983, and began questioning, then handcuffing workers.

When Jose Mendes, plant superintendent and a legal U.S. resident from Portugal, demanded a copy of the warrant, an agent replied, "You don't have no rights to ask me what's going on," Mendes testified.

Forced to Ground

INS agents told Mendes that he would be arrested unless he went away. Mendes' run-in might have ended with him walking away. But as he left, he told the judge, he cursed the agents. One agent then ordered another to "get him."

Before Mendes could turn, Agent Willie Witt Jr. grabbed him around the neck, forced him to the ground, then threw him from a loading dock to the ground, about three feet below.

Mendes began hyperventilating as he sat, handcuffed, in an INS van. When he asked agents to roll down the windows, one of them replied, "You should have thought about that before." Mendes was arrested on suspicion of assaulting a federal officer. Prosecutors declined to issue charges, but Mendes spent a night in San Francisco County Jail.

Anthony Ratto, owner of Modern Mode, wrote to President Reagan about the incident. Describing himself as a "loyal Republican," he said: "Mr. President, something wrong occurred at my plant on July 20, and I believe the facts should be brought to light."

As a result, the INS investigated--but not until more than a year later, according to documents released to the plaintiffs. An INS internal affairs investigator interviewed none of the witnesses and never contacted Mendes. Instead, the investigator relied on notes an FBI agent took in interviews with INS agents and Mendes, and on depositions of some of the workers.

The INS found no evidence of wrongdoing when the investigation was concluded in September, 1984. INS Commissioner Alan C. Nelson wrote Witt that the charge was "unsubstantiated," and he "sincerely regretted any hardship or inconvenience you may have experienced."

That's the last line in that article, but the story wasn't over for Mr. Witt. A 1999 article in the SF Chronicle, "When the Case Is About Lawyers," shows how Mr. Witt applied lessons learned from watching INS settlements and sued for race discrimination. Mr. Witt is African-American. Another INS agent in the office, who was white, also sued. Witt's case settled for $55,000 and his agreement to retire.

Mr. Chen's Condition
A photograph taken last week shows that two and a half months later Mr. Chen's left eye remains somewhat dark and swollen in contrast with his right eye, and his vision is still blurred: "Its like a curtain that you open up, and there's another curtain," he explained.

Mr. Chen's attorney, Ms. Wang, is outraged, not just because of the attack but because Mr. Chen never should have been in custody. He is among those for whom China will not issue travel documents. (The Supreme Court has prohibited ICE from keeping people locked up solely because of statelessness or because a country refuses to issue travel documents to one of its citizens, but ICE routinely ignores this.) "Because ICE held him past a reasonable time, past the time legally allotted," she said, "they gave a mentally incapacitated person an opportunity to attack him."

Adam, 8 Years Old, Loses Mother to Iraq War and Father, a Marine, to ICE

"Get this letter out to the American people..."

Today I received a letter from Anthony Chiu, a Marine who served in Afghanistan and was honorably discharged in 2003. Shortly after his discharge Mr. Chiu committed three crimes and served the prison sentences associated with these (identity theft, embezzlement, and forgery -- all apparently associated with one single incident).

Then ICE tried to deport him. He is from Virginia but has been in ICE jails for over four years, most of them at the Eloy Detention Center in Arizona.

During this time his wife was killed in Iraq.

Here is part of what he wrote:

I have adjusted my Immigration status to that of a Lawful Permane[n]t Resident on September 13, 1988. I've been in Immigration detention for the last four years... My wife and I were married nine loving years before she was killed in the Iraq War. I'm upset that ICE did not and would not let myself have the ability to attend her Funeral in Arlington National Cemetery shortly after she was back here in the United States from Iraq. ICE told me to F%$& myself and it was not their F@#$ing problem that I was unable to go because I committed criminal acts which two are now misdem[e]anors and one is still a felony...

The deportation officers who spoke to Mr. Chiu this way were at the Eloy Detention Center.

Mr. Chiu asked me to share his story and I am posting his entire letter here. If this information is accurate, it appears that Mr. Chiu should be eligible for relief based on the hardship his deportation would cause his son. As I obtain more information I will update this post.

Adam's mother died fighting for a country that is deporting Adam's father, a legal permanent resident and Afghanistan war veteran who could not attend her own burial. This is the lunacy of U.S. immigration policy: in the name of the nation and the family, nativist policies are ruining the lives of the very U.S. children on whose behalf these struggles are supposedly being waged.

Adam and Anthony Chiu's ordeals are no surprise because the nation and family are both fictions, and bad ones at that, making the violence done in their names especially stupid and horrifying.

If this were a class, an essay question might be "what would Antigone say?"

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In a third case, the federal court held:

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

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

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

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

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

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

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

Dear Ernestine,

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

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

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

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

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

Sincerely,

Jacqueline Stevens

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

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

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

ICE has issued the following statement:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No wonder the federal courts have to intervene.

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

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

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

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

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

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

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

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

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

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

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

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

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

ACLU Demands Varick Jail Tour for Nation Reporter: ICE Backs Down

Last week I wrote about ICE's long history of denying media requests for tours at its Varick Street jail, including my own requests since November 16, 2009. (The ICE lock-up is on the fourth floor of the federal building at the corner of Varick and Houston, a half block from the Film Forum.)

The facility will be either closing or changing to new management (ICE) on February 27, 2010, depending on the source, but it's not going to be what it is and that's why I had been pressing for ICE to finally and for the first time, allow a press tour.

Yesterday the American Civil Liberties Union and the New York Civil Liberties Union, on behalf of the Nation, the Nation Institute, and me sent a letter to ICE pointing out that its failure to approve any media tours at the Varick Street ICE jail was violating its own procedures as well as the First Amendment.

This morning, I received a note from ICE indicating that my request for a tour had been approved. It's scheduled for Tuesday, February 16.

This is great because it shows that there is some rule of law and that with enough mobilization the government, including ICE, may even follow it.

Thank so much to Lee Gelernt and the ACLU, Udi Ofer of the New York Civil Liberties Union as well as Betsy Reed, my editor at The Nation and Esther Kaplan of the Nation Institute for the thoughtful work that went into putting their imprimaturs on my request. Thanks also to Ben Wyskida at the Nation and Maria Archuleta at the ACLU for figuring out how to make the public aware of ICE's policies.

And thanks also to David Schulz, a media attorney who supervised the diligent efforts of students at the Yale Law School Media Freedom and Information Access Practicum. It's a new practicum, just started this year and two of its founding members, Adrienna Wong and Nabiha Syed, along with a new member Stephen Gikow assembled the underlying information that went into the letter.

I had been pressing the same arguments that appear in the letter for almost three months, but it took the efforts of Yale Law School students and backing from my colleagues at the Nation and the ACLU to make them heard.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The memorandum from Morton states:

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

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

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

DUH, right?

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

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

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

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

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

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

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