Kidnapped Canadian: Case Terminated But ICE Retains Custody, Part III

Drawing from recently obtained immigration court records, this is the third of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. Part I here; part II is here. For entire series, click here and read from bottom up.


On December 8, 2008, Kenneth Murray Danard, a Canadian falsely arrested by Border Patrol agents at the Sweetgrass, Montana Port and then kidnapped by Immigration and Customs Enforcement (ICE) agents on November 20, was taken to an immigration court inside an ICE jail in Florence, Arizona, the Florence Processing Center (FPC).

ICE was jailing a tourist who just wanted to go back to Canada so that the U.S. could deport him to Canada because, ICE alleged in a secret charging document, Mr. Danard's 1984 burglary was a Crime Involving Moral Turpitude (CIMT) and rendered him ineligible to enter the U.S. on a B-1 visa at El Paso, an event that never occurred and that the government never bothered to try to prove.

THE HEARING
The conditions under which the Executive Office of Immigration Review (EOIR) holds its hearings are an abomination to the concept of due process. By the time people held in the vast network of immigration prisons proximate to immigration courts in ICE facilities appear before an adjudicator, they have been standing since the wee hours of the morning in cramped rooms with no diversions or any other attention to their physical comfort.

If the conditions of life in the ICE jails were itself not grounds for abandoning their legal right to remain in the United States, the periods of waiting to see the adjudicators are one more reminder of ICE cruelty and the respondents' humiliation.

According to Mr. Danard, who was picked up with others from the Florence Correctional Center, a prison run by the Corrections Corporation of America (CCA),

at 4 a.m. they put you in a little room for hour after hour until they bring you in [to the hearing]. It's right in the immigration facility, a cell holding 25 people, standing room only. They put you through torture. We were there three hours and then people go to court room.

After their hearings the respondents are returned to the cell, the day interrupted only for lunch, consumed while standing in the same room. At 4:30 in the afternoon, they are brought back to their jail cells.

Watching people who have obvious legal status agreeing to be deported is tough--young men who have lived here since infancy cannot bear these conditions--and it is clear from their sometimes impassioned speeches that that the conditions of the hearings as well as the ICE jails are coercing false confessions to manufactured ICE charges, as eventually happened in Mr. Danard's case.

For Mr. Danard's first hearing the immigration judge, Richard Bartolomei, was in the building shown below, in San Diego, and the proceedings occurred via a televideo set up. Although Mr. Bartolomei possessed a copy of the NTA without Mr. Danard's signature, at no point did Mr. Bartolomei ask Mr. Danard if he had seen the charging documents.

According to Mr. Danard,

I had no idea what I was being held for. The guards claimed they had no access to my file, but that I wore a blue wrist-band ID meant I was not being criminally charged with a crime. I was surprised when Bartolomei said I had been charged with being illegally in the US, at the beginning of the hearing.

.

Immigration hearings are recorded and anyone who wants to do research on deportation proceedings would do well to obtain a privacy release and contact the EOIR's FOIA office to obtain these and the rest of respondents' files. (Alas, some adjudicators realize that the recordings may reveal their perfidy and simply turn the devices off, something that is unlawful but occurs regularly and can be discerned, for instance, in the hearings when there are obvious starts and stops without any indication that the adjudicators are "on" and "off" the record, a frequent violation of the Immigration Judge Benchbook of which the EOIR is well aware and has not remedied.)

In the event, Mr. Danard's hearing opens with him saying, "To me, the most important thing is to get back to Canada," and provides a fascinating look at the nuts and bolts of what happens when an immigration judge follows the rules and ICE does not.

Mr. Bartolomei asked the ICE attorney if she had copies of Mr. Danard's convictions and could prove they were Crimes Involving Moral Turpitude. She did not have the convictions and she could not prove this.

As is often the case, the ICE attorney asked for a postponement. As is rarely the case, Mr. Bartolomei denied this request. (Shockingly, immigration judges, at the expense of respondents' freedom, regularly grant extensions to government attorneys who don't do their homework. Instead of being penalized for coming to court unprepared, the government is actually incentivized to do so because the longer they drag out the proceedings, the greater the chance is that the respondent will abandon their legal fight and the government will "win" the deportation order even though the individual is in the country lawfully.)

Mr. Bartolomei asked detailed questions of Mr. Danard pertaining to his 1984 conviction. The adjudicator found Mr. Danard "credible," and concluded that the burglary was a "petty offense exception" to the exclusion for a CIMT. (Mr. Danard at age 17 hooked up with some kids who had already broken a store window and helped carry out some VCRs. They were immediately caught, the VCRs recovered, and over a year later Mr. Danard was tried and received a suspended sentence.)

Mr. Bartolomei also ruled, incorrectly as it turns out, that Canada is a "visa waiver country" and this was another grounds for terminating the deportation order.

Bartolomei: "What does the government want me to do, seeing that this gentleman wants to go back to Canada just as soon as possible?"

ICE attorney [name is unclear on the recording]: "Based on these convictions I would like a continuance." (The government wanted to hold Mr. Danard while it obtained the conviction records.)

Mr. Bartolomei: "I am terminating today based on the fact that these are visa waiver countries and that he is subject to the petty offense exception. You can certainly reserve appeal."

Mr. Danard then says, "The most important thing to me is to return to my family. I'd like to go home tonight if it's possible."

Mr. Bartolomei issues his decision orally and confirms this with a written order consistent with his statements during the hearing.

No doubt an additional reason for the ruling is that the government had no evidence for its charge regarding his B-1 visa at El Paso, a point that Mr. Bartolomei pressed and that the ICE attorney could not address. (As discussed in the previous post, this is because Mr. Danard never had a B-1 visa and before the hearing, ICE never informed him that this was a crucial element of the charge against him.)

At this point, ICE has lost a case that it never should have brought in the first place. But rather than release Mr. Danard, ICE continues Mr. Danard's torture by reserving the right to appeal Mr. Bartolomei's order.

More to come, on the second hearing, ICE's extortionist efforts to abuse the appeal process through its Motion to Reopen, and ICE's current statement about this case.

Kidnapped Canadian, Part II, Border Patrol Fabricates Evidence

Drawing from recently obtained immigration court records, this is the second of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. To read Part I, click here.

The photo shows Murray Danard, a field machinist, in his shop in Alberta. "It's a small town and knowledge of my arrest has been damaging to my business," Mr. Danard said.

On November 20, 2008, Kenneth Murray Danard, who lives in Whitecourt outside Edmonton, Canada with his wife, Rachel, was unlawfully locked up in the Sweetgrass, Montana Border Patrol office based on trumped up charges and then held in solitary confinement for two days at the Shelby Jail in Montana under the authority of the Department of Homeland Security (DHS). Then he was shipped to a prison in Florence, Arizona, all without ever being notified of the charges against him, and pursuant to a truly insane effort to imprison him during deportation proceedings in Arizona when his only wish was to go home immediately to Canada.

A "Notice to Appear" is the legal document DHS uses for explaining why someone is being placed in deportation proceedings. It is supposed to include the respondent's signature verifying receipt of this document. Instead of Mr. Danard's signature, Larry Allen, a Customs and Border Patrol (CBP) officer, wrote above the signature line "Refused," an assertion inconsistent not only with Mr. Danard's detailed narrative of making repeated inquiries of ICE officers as to why he was being held, but also inconsistent with the document itself.

Officer Allen did not even bother to fill out the space on the top of the box for the notice that indicates the date. A properly executed attempt to serve a document would at least include the date attempted, even if the document itself were not signed and helps explain why Mr. Danard felt he was being kidnapped.

Perhaps one reason the CBP officers did not give Mr. Danard a copy of his charges is that they were based on a fictional narrative of his comings and goings. If the officers followed the law and informed Mr. Danard of their claims against him he would have been able to better defend himself, something that the DHS seemed intent on preventing. Knowledge of these charges also would have assisted Rachel, who was soon in touch with the Canadian consulate in Los Angeles.

According to Mr. Danard's charging document, the agent who signed off on Officer Allen's statement that Mr. Danard had refused to sign this paper was Tiffany Throckmorton, the Chief Officer at the Port of Sweetgrass.

The November 20, 2008 document charges Mr. Danard with being admitted into the United States at El Paso on November 11 as a B-1 visitor, meaning someone entering the country for doing business, and then claims that he is inadmissible because of the 1984 burglary conviction and therefore subject to being held for deportation proceedings.

The fact is that Mr. Danard returned from Mexico via El Paso as a tourist, someone who would be classified for a B-2 visa if these were required of Canadians, which they are not. And, Mr. Danard had demonstrably left the United States from Montana and was attempting to re-enter at Sweetgrass, Montana, as indicated by the fact that the CBP officials required him to complete new paperwork to re-enter the country. "When we attempted to re-enter the States," Mr. Danard explained, "the officer on the US side wanted me to fill out a form inside the building, saying that I had technically left the US and was required to apply for admission again."

Nothing in Mr. Danard's passport or the government records indicate he was ever given a B-1 visa, much less that it was used to enter El Paso. His passport does contain an erroneous B-2 visa stamp that was inserted in his passport in Arizona in October, while he was in the airport in transit to Mexico. (Canadians do not require visas and if he were to have received one, it should have been a transit visa, not a tourist visa.) [Update, 9/27/10, please see bottom for more information on Canadians and C-1 transit visas.]

The reason for the fake paperwork illegally hidden from Mr. Danard's inspection is that the CBP is not supposed to arrest people and charge them with being in the country illegally if they are only trying to enter the country. 8 CFR 235.4 gives CBP the authority to allow inadmissible immigrants to withdraw applications for admission, rather than face arrest. The CBP Field Manual provides the guidelines for its agents to do this:

Aliens who are inadmissible because their NIV has been canceled under section 222(g)(1) of the Act may be offered the opportunity to voluntarily withdraw their application for admission, unless there are other related underlying reasons for proceeding with expedited removal, such as long-term or repeated overstays, or other egregious immigration violations.

Because Mr. Danard did not meet any of the criteria for being arrested and not turned around, the CBP agents, eager to crank up their arrests but not interested in drawing attention from their superiors for doing this based on inadmissibility at the border and not unlawful presence, filled out a form to make it appear as though Mr. Danard was continuously in the U.S. (Again, the only reason Mr. Danard was filling out a form asking about his arrest history was because CBP in Sweetgrass was telling Mr. Danard to apply for admission.)

Border Patrol did have the authority to arrest him and put him through deportation proceedings, but perhaps because the agency policy discourages this, the officers tried to cover-up what actually had occurred and thus manufactured a false arrest.

The government's secret filing of immigration charges is part of a pattern of I have observed across the country, notable in immigration court when the adjudicators, who have copies of the Notices to Appear (NTA), tell the respondents that they had refused to sign them, and the respondents spontaneously and indignantly reply that they were never shown these documents. This frequently happens when ICE decides to deport people in jails based only on the fact that the folks imprisoned are foreign-born.

The practice results in effective kidnappings in these instances as well, as people believe they are being released from jail or prison and instead find themselves in the back of an unmarked white van heading to a destination unknown to even them, much less their friends and family.

Moreover, the Executive Office of Immigration Review's recently announced policy of requiring the dates from the Notices to Appear in order to obtain information about immigration hearings means that respondents and their attorneys are further at the mercy of ICE deportation officers, who can arrange for people to be deported just by not bringing them to the hearings, and the incarcerated respondents or attorneys won't know they've missed them.

MORE to come: Immigration Judge terminates proceedings, ICE reserves appeal, DHS common pattern of using detention to extort false confession clearly documented, weeks more of incarceration.

UPDATE, 9/27/10: Thanks to Dan Kowalski for sharing more information on C-1 visas for Canadians: "99.999% of Canadians are properly admitted as B-1s or B-2s. C-1 Transit Visas are quite rare, and [difficult] to apply for:
http://travel.state.gov/visa/temp/types/types_4383.html
In theory he might have qualified, but no sane Canadian would apply for C-1 unless necessary.
[They are] mostly for guys who work on cargo ships who fly into LA from Manila, then "transit" from LAX to their ship docked in Long Beach..."

(Mr. Danard received a B-2 stamp in an Arizona airport while he was going from one terminal to another en route to Mexico.)

Kidnapped Canadian: "I'm Just Looking for a Way Home"

On April 30, 2010 I received the first of dozens of email messages with the subject heading "Kidnapped Canadian." They were from Rachel and Kenneth Murray Danard (he goes by his middle name), Canadian citizens who reside in Alberta. On occasion I changed the message headings to reflect the specific topic, e.g., "FOIA waiver form," but inevitably it was changed back. After receiving Mr. Danard's alien file from the immigration court and reviewing the hearing recordings, I understood why. What started out as a family vacation to Mexico turned into a nightmarish two months of Arizona prison life.

Their documents provide insight not only into Mr. Danard's own case, but shed light on systemic problems that pervade the immigration courts and jails. The moral and legal indignities visited on Mr. Danard include Border Patrol agents arresting him in violation of the policies for arriving tourists, not providing him a copy of his immigration charges, and then lying about this (a federal crime); Department of Homeland Security prosecutors abusing the procedures for filing a Motion to Reopen in order to extort a "win" for the government (Robert Barthlemay was the Florence DHS prosecutor who pursued this); an immigration adjudicator (Bruce Taylor) looking the other way and rubber-stamping the coerced agreement; and, especially upsetting, Immigration and Customs Enforcement Deportation Officers keeping Mr. Danard in confinement for weeks after Mr. Taylor had authorized Mr. Danard's return and a plane ticket home had been procured.

DOG RESCUE OPERATION IN MEXICO


In mid-October, 2008 Rachel and Murray, a field machinist, flew to Mexico for a long-awaited vacation. At some point they encountered these two dogs, then emaciated stray puppies, and decided to rescue them. To save money they decided to return home by car, and bought a used VW.

Border Patrol in El Paso waved them through on November 11, and the Danards entered Canada on November 20. However, the car, which was good enough to enter the United States, was not up to Canadian standards. They decided to turn around and sell the car in Montana.

That's when their lives changed. Instead of allowing them back into the U.S. after confirming their Canadian citizenship, a U.S. border patrol agent instructed Murray, but not Rachel, to fill out a visa form. "I am convinced that my choice to wear my hair long and never shave led to a type of discrimination others must suffer constantly," Mr. Danard told me later.

In filling out the visa form he honestly admitted to a 1984 burglary conviction, a crime that occurred when he was 17. This could possibly be construed as a Crime Involving Moral Turpitude, and thus grounds for inadmissibility (although an immigration adjudicator later ruled that absent government evidence to the contrary this was a "petty offense exception" and hence Mr. Danard was actually admissible).

In the event, the Customs procedures advise agents not to arrest Canadians in this circumstance but only to prevent their entry.

Instead of turning him around or allowing him in, the Border Patrol agents at Sweetgrass Montana, including Officer Larry Allen, arranged for him to be arrested and sent to an immigration jail.

Rachel described a wrenching scene of her being pushed out of the Montana office with the puppies, and watching her husband being kidnapped, sent first to solitary confinement in a local jail and then to a private prison in Florence, Arizona, where he was held through the Christmas holidays and not released until January 20, 2009.

[More later, on how Mr. Danard's initial court victory circumventing ICE's custody of him actually led to weeks more in ICE custody.]

InSecure Communities

According to today's Los Angeles Times, the Department of Homeland Security (DHS) will be increasing its use of the IDENT database, even though this database has produced false positives leading to the arrest of legal residents and U.S. citizens. ("Secure Communities" is the Orwellian name of the program for rolling out its use by local law enforcement agencies.)

On Sunday Colorado public radio station KDNK's Matt Katz and I discussed a specific case of an IDENT screw-up that he's been covering in Carbondale, where, on July 20, 2010, Immigration and Customs Enforcement agents stormed into the home of U.S. citizen Marco Guevara with the intent of deporting him.

The conversation is about 15 minutes and you can listen here.

ICE Deports Wrong Man, Attorney Fights Back

As the Department of Homeland Security (DHS) expands its database surveillance programs, civil libertarians have feared, rightly, the agency encroaching on privacy interests. However, equally worrisome is that the government might arrest and deport you by encroaching on someone else's privacy.

Immigration and Customs Enforcement (ICE) agents and local law enforcement officials have been using a DHS database (IDENT) and coming up with false positives and then including in their arrest reports information consistent with the match and excluding from the arrest report information inconsistent with a match. The cases I've seen typically involve two records for two different people: one record is for someone with legal status to remain in the country and the other record is for someone ICE has put into removal proceedings. ICE claims in these cases that one or the other names is an alias and the two records are for the same person.

That means that you could have an arrest warrant issued to you based on ICE claiming that you are "really" someone else. The secrecy of these databases and their protocols, as well as DHS attorneys' failure to produce authenticated and verifiable underlying evidence, makes it difficult to impossible for respondents who lack legal counsel to challenge these orders.

Attorneys have a hard time challenging these matches as well. Florence Project attorney Kara Hartzler's July 20, 2010 Motion to Appeal EOIR adjudicator Linda Spencer-Walters' removal order for someone who was deported on February 2, 2010 provides insight into how ICE agents are playing around with information on their reports and how EOIR adjudicators, many of whom are former ICE attorneys, are rubber-stamping the misinformation.

Ms. Hartzler's incisive and informative appeal contains important legal and factual analyses useful for challenging ICE in these cases. I am posting it here, with the personal information about the respondent and someone else redacted, because her analyses may be helpful for other attorneys confronting similar situations.

By the way, folks who are familiar with the poor quality of decisions by Ms. Spencer-Walters, an adjudicator at the Eloy Detention Center, may know that she is a former ICE attorney but may not realize that she was the ICE attorney who vigorously pursued the deportation of four star high school students in a well-publicized 2005 case following their arrest on a field trip.

An immigration judge in Phoenix, John Richardson, squashed the deportation order on the grounds that it was obtained based on unconstitutional racial profiling, according to Daniel González, a reporter for the Arizona Republic. His story describes two students quoting Border Patrol agents in Buffalo: "In Arizona they may not stick out because there are a lot of Hispanics, but in Buffalo they were eventually going to get questioned."

Ms. Spencer-Walters lost the case but as an apparent reward for her dogged efforts to deport honor students -- the hearing lasted six hours -- the Department of Justice made her a job offer and in 2008 she was sworn in as an adjudicator. Now she can just deport people herself and not bother with little things like the Constitution and evidence.

Deported US Citizen Johann Francis Interviewed on CNN

Yesterday CNN's Don Lemon interviewed Johann Francis, a U.S. citizen ICE deported in 1999, and Rachel Rosenbloom, a Northeastern University Law School Professor. Professor Rosenbloom is an expert on citizenship and immigration law. They discussed Mr. Francis's 10 year forced exile in Jamaica and why the Arizona law and the continued lack of legal counsel for people in ICE detention means more US citizens will find themselves in his position.

CNN Producer Tina Kim linked the interview on her blog, and you can watch it here.

Mr. Francis's story was first reported on this blog when he returned for Christmas in 2009. You can read the details here.

"The Kids Are Alright"...But the Parents Are A Mess

Lisa Cholodenko's latest film "The Kids Are Alright" (2010) has received glowing reviews, including New York Times' A.O. Scott's coveted status as a "critic's pick." It is indeed a fine piece of work but as a symptom of the Zeitgeist, it makes me utterly despondent.

Reader beware: if you haven't seen the film and care about suspense, read a real reviewer, someone who knows better than to reveal key plot details. This is for people who've seen the film or who like to know what they're getting into (or avoiding).

As the trailer suggests, Nic (Annette Bening) and Jules (Julianne Moore) have raised two children to whom they each gave birth, respectively, from the sperm of the same donor (Mark Ruffalo). The kids are teenagers, one is leaving for college, and "Dad" is suddenly on the scene, and connecting with Jules in a way that poor Nic never has and never will. (Paul and Jules have passionate sex; Jules and Nic seem to have done nothing but hold hands for years and years.)

Worse, there was nothing else that seemed meaningful between them except the responsibilities of parenting.

A lawyer was among the friends with whom I saw the film. Over hot dogs (with and without meat) and beer on a fabulous Manhattan patio the size of Nic's and Jules' SUV, he disagreed with this assessment and said that they shared a connection. Evidence of this was the story they told in response to Paul's (Ruffalo's) question about how they met. But that particular story was really a portrait of two forlorn people whose meeting-story had been told so many times it was drained of emotion or meaning, a worn out touchstone for a romance that was never more than the aspiration for romance based on insidious films like Cholodenko's (but hopefully those films had plots that depicted actual romance).

Someone else who approved of the film's message replied that marriage's magic was not always apparent to the outsider.

True enough. But this is a drama, not a documentary.

(It really bothers me when educated people talk about the secret, private lives of fictional characters, mostly because it's a symptom of the primitive intuitions that persist when it comes to narrative, a low-level of common sense intolerable in any other field.)

Anything we see or do not see in "The Kids Are Alright" is because Cholodenko made a choice. If she wanted to show a hidden connection between Nic and Jules, she was free to do just that. Sure, it was a tight budget but it doesn't cost less to shoot constant fuming anger, frustration, and despair than empathy and joy. In the film Cholodenko co-wrote and directed, she made a choice to celebrate a relationship between two people who were unable to bring happiness to the other, and who kept disappointing these expectations, making matters worse.

Charity Scribner, a comparative literature professor at CUNY, agreed that the film showed nothing redeeming in the relationship between the moms, and then made the brilliant point that she thought this was Cholodenko's intention. After all, Charity said, the title is "The Kids Are Alight." Cholodenko is making an incisive observation about generations, Charity suggested. The lesbian moms reproduced the same suburban pain and suffering they were taught in their own homes. The teleology of their remaining together merely represented a culture for which they were they last forbears. Their own children, who were the film's primary conduits of light and possibility, were now free to do something different, something better, something meaningful, something honest and fun.

Charity's partner disagreed and said the film really was about two people just sticking it out.

Alas, having read the interviews with Cholodenko, it appears that while Charity's film was brilliant, her partner was correct; Cholodenko's intentions really were banal and reactionary.

If you google "Cholodenko intervew," portions of which seem to be channeling James Dobson and Phyllis Schlafly, you'll see what I mean.

The moral of Cholodenko's film, at least according to Cholodenko, is: who cares about anything except the fact that they stay together? Isn't that what families are for? In Cholodenko's film, the country's 50 per cent divorce rate is the talismanic enemy, not a symptom of a painful, archaic institution that Cholodenko reveals as stifling desire, sex, and connection.

The problem with the film is that the relationship between the moms is hollow, miserable, depressing and without any redeemable qualities, save that they raised two children who are alright. Jules at one point gives an impassioned speech affirming the relationship, but the reason she gives is that they've stuck together. Outside of raising two children, Nic and Jule's relationship's only alleged virtue is a tautology: it is good they are together because they are together. (If you stick to the plot, raising two children together is not going to be enough once the kids graduate, yet it is clear that Jules and Nic will disappoint each other until death do they part.)

The upshot is a major victory for conservatives, on whose behalf Cholodenko has made the following blow for same-sex marriage: lesbians are not like any other happy couple but like any other miserable, melancholic couple who cling to each other out of fear not love. Go Prop 8!

U.S. Citizens Detained and Deported: 2010 Fact Sheet

FACT SHEET ON THE U.S. GOVERNMENT

DETAINING AND DEPORTING U.S. CITIZENS

This fact sheet is a response to recent requests for original data.

Findings based on this research have been published in The Nation magazine, States Without Nations: Citizenship for Mortals (Columbia University Press, 2009), and on this blog (see tag ICE Deporting US Citizens).

.In January, 2011 the Virginia Journal of Social Policy and the Law will be publishing “U.S. Government Detaining and Deporting U.S. Citizens as Aliens,” a 78-page typescript.

"It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country."

--U.S. Supreme Court Judge John Clark, majority decision in Fat v. White 253 U.S. 454, 464 (1920).

Key Findings

#1 In 2010 The Department of Homeland Security (DHS) Bureau of Immigration of Customs Enforcement(ICE) continues to unlawfully detain and deport U.S. citizens and to issue false and misleading statements about these activities.

#2 The agency running the immigration courts, the Department of Justice's (DOJ) Executive Office of Immigration Review (EOIR), is a paranoid and bureaucratic backwater beset by cronyism, malfeasance, and close ties to the DHS, rendering many immigration courts, especially those hearing detained respondents, incapable of providing checks on ICE lawbreaking, including ICE's detention and deportation of U.S. citizens.

FINDING #1

RATE OF U.S. CITIZENS DETAINED IN MAJOR LEGAL ORIENTATION PROGRAM SERVICE AREA

From 2006 to 2008 one percent of people in ICE detention centers in Southern Arizona who consulted with attorneys funded by the Department of Justice Legal Orientation Program had their cases terminated by immigration judges because they were U.S. citizens (82 out of 8,027).

(For chart indicating length of time U.S. citizens held in Arizona jails please go here.)

Only a handful of detainees who were U.S. citizens in ICE detention had been convicted of violent crimes; the majority were reported to ICE while serving sentences for drug convictions.

This population of Southern Arizona detainees for the most part originates in California prisons and jails, and accounts for approximately 10 per cent of all detainees nationwide; it appears to be broadly representative of people held in other detention centers. About 30% of the people detained who were not U.S. citizens nonetheless had two or more close relatives who were U.S. citizens.

A 2009 report by the City Bar Justice Center's NYC Know Your Rights Project noted that eight per cent of people who were held in the Varick Detention when they conducted a survey had apparently valid claims to U.S. citizenship.

Last year ICE held over 400,000 individuals, including approximately 4,000 U.S. citizens. (See chart for 2003 to 2009.)

RECENT EVENTS
ICE public affairs and other officers are claiming that a November 19, 2009 memorandum issued by ICE Assistant Secretary John Morton has addressed successfully the problem of ICE detaining U.S. citizens.

Far from being evidence of ICE cleaning up its act, such statements to members of Congress and the press are further evidence of government malfeasance and deceptions. As recently as June, 2010, Mr. Luis Delgado, born in Houston, was threatened with prison and turned back to Reynosa, Mexico at the same border crossing where Mr. Mark Lyttle was twice turned away 18 months earlier.

In a June, 2010 response to my request under the FOIA, an ICE FOIA officer told me he had received a CD with over 4,000 pages of email traffic to its email "drop box" between November 19, 2009 and March 29, 2010. He reviewed and mailed a hard copy of the most recent 100 pages at the time (March 17 - 29, 2010). The reports redact the legal response advised by ICE Headquarters.

Two inferences are obvious from the documents I received: 1) ICE agents are demonstrably violating the 24 hour requirement by days and even weeks; 2)ICE continues to lock up people with probative evidence of U.S. citizenship.

For an ICE memorandum pertaining to someone claiming US citizenship and held in March, 2010 in violation of ICE procedures and US law, please see PAGE ONE and PAGE TWO.

Also, ICE has not insured its agents know about the new procedures. Therefore the inquiries of the drop box are understating the actual number of cases of detainees who have probative evidence of U.S. citizenship.

In January, 2010 I called a Florence, Arizona deportation officer to find out if Joseph Anderson's original birth certificate (with his USC father's name on it and a recording noting marriage to Joseph's mother as well as noting Joseph's birth as "legitimate") were "probative evidence" of his US citizenship. The deportation officer had no idea what I was talking about and stated he had not heard of this memorandum.

He gave me his email address and I forwarded the ICE memorandum I'd obtain under the FOIA. (After I posted it on my website, ICE posted the Morton memorandum on its website.)

(Mr. Anderson's been locked up in ICE custody at the Pinal County Jail for over two years.) Herbert Flores-Torres, a U.S. citizen, had to endure detention for over four years before ICE complied with the order of a federal judge to recognize his U.S. citizenship and release him. This occurred in December, 2009.

Mr. Anderson told me that when ICE first picked him up, the agent in the Phoenix office told him that the agent didn't know the meaning of "legitimate" in immigration law and was therefore going to detain him.

DEPORTED U.S. CITIZENS
In the 30 cases I have documented in which the U.S. government actually deported U.S. citizens (this does not include the events associated with the recent deportation reported in the Houston Chronicle), the most common factors were U.S. citizens falsely indicating alienage to escape detention, ICE deportation officer threats, and CBP threats and destroying valid legal identification. This has meant years of exile and statelessness (see, e.g., Johann Francis).

-Among the cases I reviewed since 2003 were 19 U.S. citizens who were deported and served prison sentences after being convicted of Personation of a U.S. Citizen (18 U.S.C. 911) or Illegal Reentry (8 U.S.C. 1362), crimes predicated on alienage.

The similarity of the underlying fact patterns in these cases, and their consistency with practices that pervade ICE offices, indicate that the phenonomenon of deporting U.S. citizens is underreported, especially because the government can make it so difficult to falsify the incorrect assignment of alienage.

For instance, on his return from Guatemala after obtaining a U.S. passport through the U.S. Embasssy in Guatemala City, CBP and ICE officials arrested Mr. Lyttle at the Atlanta airport and completed Expedited Removal forms as they, in collaboration with ICE trial attorneys, attempted to deport Mr. Lyttle to Mexico for a fourth time (he was deported twice after he tried re-entering from Mexico).

(For previous reporting on the pattern of CBP tearing up or disregarding U.S. government documents presented by U.S. citizens of apparent Mexican descent, please go here.)

- Nationwide data indicating ICE is holding U.S. citizens include: independent reports from two immigration judges; a 2010 Master Calendar hearing of 105 individuals I observed, which included one U.S. citizen; a survey of pro bono immigration firms listed on a DOJ website for Southern California--in response to inquiries of 15 firms in 2008, 7 replied they had represented one to four U.S. citizens in the last three years.

-Representativeness of Southern Arizona data: The Arizona data may understate the denominator because people who are truly hopeless about their legal status may not meet with the LOP attorneys; but the Arizona data may also understate the total number of U.S. citizens in ICE custody because U.S. citizens are more likely to obtain their own private attorneys and thus would be less likely to meet with LOP attorneys and initiate a file on their cases.

FINDING #2

Immigration courts are run by an agency, the EOIR, whose practices and policies, including unwritten ones restricting access to the courts, are rooted in cronyism and paranoia. EOIR staff nationwide vary in their efforts to follow immigration hearing laws and regulations. Respondents are at the mercy of this decentralized system. The legal counsel at the EOIR headquarters in Falls Church, Virginia have violated FOIA laws, rebuffed inquiries from independent researchers and journalists, and ignored clear evidence of misconduct by EOIR attorneys running the immigration hearings.

William Cassidy and Dan Pelletier, who run hearings for those detained at the Stewart Detention Center, have, according to TRAC at Syracuse University, the highest rate of deportations nationwide and are regularly violating the laws, regulations, and rules for immigration hearings. This incentivizes U.S. citizens, legal residents, and immigrants to give up on legal claims to remain in the United States.

EXAMPLES:

No Check to Ensure Respondents Receive Copy of Government Charging Documents.

If ICE actually allows someone to appeal a removal order by going to an immigration court, a federal regulation requires that the government's basis for seeking removal is shared with the respondent. The first thing that the vast majority of immigration judges do at a Master Calendar hearing is ask the respondents at the hearings if they received this. Judges are also supposed to review the charging document and make sure the respondent has this.

Mr. Cassidy and Mr. Pelletier demonstrably do not do this. Instead, at hearings I have attended and in recordings to which I have listened, the judges TELL the respondents that they were served a "Notice to Appear," a phrase that is itself utterly meaningless. Indeed, one individual, who had been alerted by his attorney about the legal problem of not receiving a Notice to Appear, tried to tell the judge that he had not received this. In this case and others when respondents made inquiries of Mr. Pelletier he ignored their questions and, over the television monitor, barked the next name.

At one hearing that was supposedly a "mass removal" -- everyone has supposedly agreed in advance to be deported and just raises their hands in front of a camera (of course many just sit still with arms folded and show no indication of agreeing with anything Mr. Pelletier is saying on the television screen) -- immediately after Mr. Pelletier adjourned the hearing, several longterm U.S. residents asked the CCA guard when they were going to talk to the judge. The guard ignored the question and was trying to escort them out of the room to lunch. The detainees explained their plight to me and I alerted the ICE trial attorney who requested the judge resume the hearings. It was too late for one detainee who was already outside the court room. I believe that if I had not been present none of them would have spoken with the judge.

Inadequate and Misleading Bond Information.

A key reason people agree to deportation is because they want to escape detention centers. Many are eligible for bond but do not realize this because their deportation officers lie to them and they do not know how to request bond hearings of the EOIR.

Even if they do request a bond hearing, no regulation guarantees this will occur in a timely fashion. Two attorneys who represent clients in the Stewart Detention Center told me of bond hearings being frequently canceled.

At the Eloy Detention Center in southern Arizona, an EOIR attorney presiding over hearings, Mr. Richard Phelps (appointed during the Monica Goodling era), allows those who are resourceful enough to pursue a bond hearing, to hear his TAPE RECORDED INSTRUCTIONS. Following the recording, which is largely incomprehensible to anyone without immigration law training (and concludes with his chit-chat with someone helping him with the recording), the detainees ask questions of the CCA guard prior to Mr. Phelps returning to the court room where he impatiently brushes off the respondents' inquiries.

I encountered one individual who was awaiting a hearing on his green card application following the marriage to his U.S. citizen wife; he had overstayed a tourist visa and had no criminal history. It took three months before he was able to navigate his release on the minimum $1500 bond, an indication of unnecessary detention that cost not only his freedom but also the U.S. taxpayers approximately $9,000.

These experiences encourage U.S. citizens, legal residents, and immigrants to agree to deportation rather than endure the harsh and arbitrary conditions of detention and U.S. immigration courts.

Secret Evidence.
On December 8, 2008, William Cassidy encountered in Mr. Lyttle's "alien file" the ICE arrest report (I-213) showing his claim to be born in North Carolina. As is the case for other EOIR files I have examined, it lacks a "certificate of service" indicating that ICE shared it with Mr. Lyttle, a violation of 8 C.F.R. § 1003.32. During the hearing, Mr. Lyttle asked Mr. Cassidy for a copy of the paper he was reading. Normally a judge will order the ICE attorney to make a copy, but neither the ICE attorney nor the judge did this. Following the judge ignoring his entreaties, Mr. Lyttle filed a grievance requesting a copy of the I-213 but never received it.

I recently obtained an EOIR file for another respondent who appeared in the Stewart Detention Center immigration courts in 2010. It also contains what appears to be deliberately falsified information on an I-213 report that was never shared with the respondent. Mr. Pelletier, the EOIR attorney who presided over the hearing, did not require that the ICE attorney share a copy with the respondent.

Based on my own observations and conversations with practitioners in the area I believe that every EOIR file for those who are in ICE custody and have their hearings at Stewart or Atlata contains I-213s that have not been shared with respondents.

Unlawfully Closed Hearings.
A DOJ regulation states that, specific exceptions notwithstanding, "All hearings, other than exclusion hearings, shall be open to the public..." The EOIR regularly violates this rule by holding hearings in several detention centers where security guards block access. The EOIR also allows immigration judges to close hearings in non-detained buildings without legal reason or penalty. (You can read about this in The Nation and more recent postings about the EOIR on my blog.)

Mr. Cassidy and Cynthia Long, the court administrator in Atlanta, Georgia, have incorrectly told court watchers that a docket listed asylum hearings and therefore they could not attend when the truth was that the docket a) did not include asylum hearings; and b) asylum hearings are only closed at the request of the respondent. This provision is to ensure foreign agents do not retaliate against family members in a respondent's home country. It is a cruel abuse to lie and use the regulation for the purpose of obstructing access to hearings by religious, pro-immigrant observers who want to keep an eye on Mr. Cassidy, a former ICE prosecutor who has one of the highest rates of asylum denial in the country.

The Department of Justice Executive Office of Immigration Review is charged with managing immigration hearings, but its staff in Washington, D.C. also regularly violate federal laws, regulations and rules designed to thwart misconduct. I will be describing these in more detail in a forthcoming article.

Conclusion.
The criminal and regulatory violations perpetrated by the DHS and EOIR vastly overshadow the small infractions of immigration law for which the deportation agencies and their increasingly costly budgets were established.

The government has reporting systems in place that would allow it to systematically track the rate at which deportation orders are terminated because of U.S. citizenship, but ignore Congressional inquiries and fail to collect the requested data. (This could be done easily through by EOIR, if it reported findings of nationality in its Statistical Yearbooks as reported by immigration judges and not ICE attorneys. At present the EOIR's Statistical Yearbook inaccurately lists respondents who are U.S. citizens as having the nationalities ICE ascribes to them and is another indication of the EOIR's poor record-keeping and lack of independence.)

A further problem is that the agency at the DOJ that is supposed to oversee the EOIR, the Office of Professional Responsibility (OPR), is infected by a similar culture. Like the EOIR, OPR is being run by an Acting Director, Mary Patrice Brown, who is a career civil servant. Brown is on leave from her position as a U.S. attorney.

According to the Washington Post's WhoRunsGov.com, Brown has close ties to Attorney General Eric Holder and is rumored to be in line for a position as a federal judge. Brown's appointment seems designed to prevent the OPR from performing as an independent watch dog within DOJ. The OPR is clearly violating the FOIA statute -- in violation of an April 2010 remand from the DOJ Office of Information Policy OPR will not release reports of immigration judge misconduct -- and is so secretive that it refuses to release its 2009 Annual Report.

SOLUTION:

The only way to protect the rights of U.S. citizens and legal residents is to provide an assigned attorney at government expense to anyone arrested by ICE and either held in detention or issued an Expedited Removal Order or an Administrative Removal Order who cannot afford an attorney. Absent this, it is impossible to check the abuses of discretion as well as law-breaking by ICE and border patrol agents.

Expensive? Yes, just as assigned attorneys for indigent people accused of crimes is also costly. This is the cost of doing the nasty business of implementing deportation laws.

If the U.S. public truly wanted to save money, increase jobs, and give a shot to the housing market to boot, it could abandon this parochial cause, as will surely occur eventually. This might seem far-fetched, but not as far-fetched as requiring government documents to travel from the villages to London, or to move within the colonies, as also was deemed imperative for order, the unregulated movement of poor people regarded as a clear threat to stability. Such a policy, once relinquished, now seems a provincial and ridiculous restraint on freedom and justice, not to mention commerce, as will the restriction on movement among countries appear to populations in a few hundred years.

Postscript: In May, 2010 a settlement agreement was reached in which the U.S. government agreed to pay $350,000 to a trust fund for Peter Guzman and his mother because Mr. Guzman was born in Los Angeles and in 2007 the U.S. government deported him. (The agreement has not been finalized by the judge but appears to be on track for this to occur shortly.)

--RSS Subscribers: you received two messages because of time-stamp problem on first one. My apologies for the confusion. (If you are not using the RSS and would like to be notified of new posts on this blog, please click on orange box in right-hand corner of url box.)

U.S. Citizens Detained and Deported: 2010 Fact Sheet

FACT SHEET ON THE U.S. GOVERNMENT

DETAINING AND DEPORTING U.S. CITIZENS

....

July 15, 2010: There was a time-stamp problem. The post for this title is here.

Apologies for any confusion!

U.S. Border Patrol Kills Mexican Teenage Stone Thrower Protesting the Occupation

The map shows El Paso belonging to Mexico until the mid-nineteenth century, when the U.S. government acquired sovereignty after invading Mexico City. (It is taken from a Latin American Studies web page that has several excellent maps on the land grab.)

Today's Los Angeles Times features an AP story "Border Patrol in El Paso kills Mexican teen":

Preliminary reports on the incident indicated that U.S. officers on bicycle patrol "were assaulted with rocks by an unknown number of people," Border Patrol Special Operations Supervisor Ramiro Cordero said Tuesday.

The article connects this violence with the U.S. government's targeted and deadly electrocution of someone walking across the border in California:

Less than two weeks ago, Mexican migrant Anastasio Hernandez, 32, died after a Customs and Border Protection officer shocked him with a stun gun at the San Ysidro border crossing that separates San Diego and Tijuana, Mexico. The San Diego medical examiner's office ruled that death a homicide.

The article offers a compassionate portrait of the death's impact on the teenager's family. But, resembling coverage of similar events in Israel-Palestine, the reporter quotes extensively from the U.S. government explaining its armed presence in the area and provides no response from political and religious organizations challenging this.

Of course the real problem is not the unrecognized principle of Mexican or any other nation's sovereignty, but unrecognized principles of justice that require free movement and thus the elimination of birthright citizenship.

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For a more balanced story, including an eyewitness challenging the Border Patrol version of events, listen in to NPR's Monica Ortiz Uribe on "All Things Considered."

Administrative Removal and the Deportation of a US Citizen

This is a copy of a "Notice of Intent to Issue a Final Administrative Removal Order" issued on September 5, 2008 to a U.S. citizen. It was canceled about eight months later, after Mark Lyttle had spent about four months stateless in Mexico and four other countries in Latin America. (For more on his experience, go here. And here.)

In the wake of a new Arizona law authorizing local police to make inquiries about residents' immigration status, people are beginning to realize how laws supposedly designed for aliens are affecting U.S. citizens.

As I've reported previously, the number of U.S. citizens already incarcerated by ICE are alarming: my research suggests that last year approximately 4,000 people who went to an immigration court with deportation orders had their cases terminated because they were U.S. citizens. (Of course this should not be that surprising: absent assigned counsel and a working immigration court, the real shock is that the number of U.S. citizens detained and deported is not higher.)

Especially disturbing are those who may have a legal reason to remain in the United States but are shipped out without the opportunity to even appear before an immigration judge.

Administrative Removal Orders
The legal instrument for deporting people without a hearing is either an Expedited Removal Order (usually issued at the border) or an Administrative Removal for Aggravated Felons.

According to the excellent researchers at TRAC, ICE has been handing these out in increasingly higher numbers. In 2006, the most recent year indexed, 55% of people deported did not have a chance to be heard before an immigration judge.

The only safeguard in the procedure is a requirement that those who receive these orders have ten days to challenge them.

The regulation states:

The alien will have 10 calendar days from service of the Notice of Intent or 13 calendar days if service is by mail, to file a response to the Notice of Intent. In the response, the alien may: designate his or her choice of country for removal; submit a written response rebutting the allegations supporting the charge and/or requesting the opportunity to review the Government's evidence; and/or submit a statement indicating an intention to request withholding of removal under 8 CFR 208.16 of this chapter, and/or request in writing an extension of time for response, stating the specific reasons why such an extension is necessary.(Emphasis added.)

Of course if there's no opportunity to go to even the compromised "courts" available for people in immigration proceedings these procedures are unenforceable and, as it turns out, not always implemented.

ICE Agent Violates U.S. Citizen's Constitutional Right to Due Process
On September 8, 2008 an ICE agent working out of a clandestine facility in the rear of an office park in a Raleigh suburb visited Mr. Lyttle while he was in jail and gave him the Notice of Intent required for an Administrative Removal Order. (The document advises people they have ten days to challenge his deportation order.)

But Agent Faucette did not give Mr. Lyttle this opportunity. Instead of leaving the form with him and allowing him ten days to decide on how to proceed, she instructed him to sign the form in her presence, without him even having a chance to read it, and then she took it from him.

How do we know this? Is this a case of his word against hers? Not really. As the form indicates, the man Ms. Faucette was accusing of being "Jose Thomas" signed his name "Mark Lyttle" to indicate he had received the instructions at 12:05 p.m., the very same minute that he signed the form indicating he was waiving any appeal.

portion of form indicating Notice of Intent has been received:

portion of form indicating Mr. Lyttle does not wish to contest his deportation

According to the government's own document, Mr. Lyttle had been given not even one minute to read a piece of paper that was supposedly giving his informed consent to be sent to Mexico as a Mexican citizen, a country where he had no ties and where his lack of Spanish would prove, as it did in the rest of his exodus in Latin America, a major difficulty.

The form instructs recipients that DHS must receive the form in the mail within ten days, suggesting that the government believes it reasonable for people to have some time to contemplate their legal options:



The process by which Mr. Lyttle's signature was obtained is one that seems part of the ICE routine. An agent from the Criminal Alien Program office (in this case, the Cary subfield office), goes out to a prison or a jail, meets someone, shoves a form in his or her face, and gets the individual to sign it without a chance to read it or consider alternatives. Since the form's addressee is the Department of Homeland Security Office in Atlanta, there is no separate agency that might check on agent misconduct implementing the regulation.

This practice of assuming in advance legal questions that require protections of the rule of law and assigned counsel to be ascertained with any clarity if not justice is an ominous trend begun in the late 1980s and continued by Attorney General Eric Holder, most recently with his pitch to eliminate Miranda warnings for assumed terrorists.

Denying due process rights to citizens because they might be aliens, like denying due process rights to people because they might be terrorists, gives an illogical credibility to the unsubstantiated intuitions of law enforcement. It is not a likelihood but a certainty that under these conditions U.S. citizens have been deported, just as, pressured by law enforcement, people have confessed to crimes for which they are innocent, the very reason the Miranda warning was established.

The solutions are simple: assigned counsel for anyone in ICE custody and an increase in immigration court judges. Expensive? Maybe. Too expensive? Maybe. If so, then Congress needs to realize it lacks the resources to continue its reckless and irrational practice of paying uneducated armed thugs to interfere with the private lives of their constituents.

Post-script: Mr. Lyttle eventually was able to force an ICE agent at the Stewart Detention Center in Georgia to issue a Notice to Appear so that Mr. Lyttle could go before an immigration judge. As I've described previously, the Executive Office of Immigration Review attorney filling that position, William Cassidy, relying on dishonest ICE statements, broke various regulations, ignored Mr. Lyttle's statements, and deported him anyway.

""I was just profiled" -- CNN story on False Imprisonment of Chicago Man

Yesterday CNN news writer Tom Watts put together a great story revealing once again the inanity of deportation laws and the illegal actions they precipitate.

According to the article, Eduardo Caraballo's mother was not allowed to bail him out of a Chicago jail for a stolen car charge because of an ICE hold. But Mr. Caraballo was born in Puerto Rico, and is legally a U.S. citizen by birth, and therefore protected by law and the Fourteenth Amendment from the handcuffs of ICE.

According to the CIA World Factbook, Puerto Ricans were "granted U.S. citizenship in 1917."

ICE has no authority over anyone who is a U.S. citizen by birth, including those born in Puerto Rico. It can only justify arresting someone who makes a claim of having this status if it has proof that the person is lying, and, in this case is from Mexico. Absent such proof, and therefore legal authority, the ICE and jail officials responsible for this are violating not only Mr. Caraballo's civil rights but are also committing serious crimes of kidnapping and false imprisonment.

Further evidence that this is happening around the country, mostly through the Criminal Alien Program, recently came my way in ICE's reply to a FOIA request I submitted in March.

In just the last few months ICE HQ provided guidance to ICE attorneys concerning about 1500 people issued ICE detainers who asserted they were U.S. citizens.

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.
===
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.

---
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.