Troutman Sanders and ACLU File Complaints on Behalf of Mark Lyttle, Deported U.S. Citizen (and Puerto Rican?)

I took this photograph of Mark last year when we visited a Christian boarding school that cared for him when he was young. He now stands again, still, in front of another semi-mythical story of origins about his "Puerto Rican descent" the ACLU has highlighted, one not so different from everyone else's stories of descent that we repeat based on the inventions of others.

Yesterday Troutman Sanders, a top tier Atlanta law firm, alongside the ACLU, filed a pro bono lawsuit on behalf of Mark Lyttle against a bunch of bad government actors and agencies that deported Mark, a U.S. citizen, from the United States to Mexico. The complaints tell an amazing story of government malfeasance and worse, and have the documents to back it all up. The legal and narrative work here is overwhelming and impressive.

You can find the lawsuit filed against bad government actors in North Carolina here, and the complaint against bad government actors in Georgia here .

Since the ACLU has put its public relations muscle behind this, the story, thank goodness, is all over the world, which is terrific because the complaints document systemic civil rights abuses that affect thousands of U.S. residents in ICE custody today, including U.S. citizens.

One lead item in these media stories, based on a paragraph in the complaints, however, bothers me. The problem is not the fault of Troutman Sanders or the ACLU, which put together a remarkably compelling, clear, detailed, and accurate narrative of Mark's ordeal. And yet, the statement that Mark is a "U.S. citizen of Puerto Rican descent" has only his adoptive mother's own observations based on his appearance, reiterated by her sons, including Mark, to back this up.

The "only" here is not a feature that is unique to Mark's story; after all, how else do we know who we are? Every family has its own confusions about its background and a compulsion to come up with a story, to wit my mother and grandmother used to argue about whether her father was from Hungary or Romania and I honestly don't remember who "won."

I guess my point here is that family narratives of ethnicity make me queasy and I don't feel better reading about Mark's Puerto Rican descent in the newspaper than I do hearing his adoptive mother give me her reason for believing this, "He's always looked Caribbean to me."
I have spent a lot of time with Mark and his family, and while Mark's mother, Jeanne, has offered various speculations on the ethnic identity and background of Mark's biological parents, including that his biological father is Puerto Rican, neither she nor anyone else, as far as I can ascertain, have any concrete evidence this is the case.

This seems such a small point that mentioning it calls for an explanation. The reason this bothers me so much is that putting forward a claim about someone's ethnicity in this context capitulates to a narrative quest for ethnic origins that is at once commonplace and understandable, especially if the desire is to offer an explanation for how this happened to Mark, but also consistent with arbitrary divisions and background narratives that have proven troublesome. I am not suggesting that Troutman Sanders or the ACLU were wrong to include this information in the context of a lawsuit, but wondering whether as a society there is something wrong with us for expecting or even needing it.

The bulk of the complaints reveal that the U.S. government had no evidence that Mark was born in Mexic and had a lot of evidence that he was born in the United States. Period. Why is there an expectation that the story needs more?

Now that the ACLU, understandably following the lead of Mark's family, has asserted Mark is of Puerto Rican descent, the press has picked up on this and this "fact" appears close to the lead in many of the articles describing his ordeal, the complaint brilliantly nailing ICE for its egregious violations of the law and Mark's dignity while perhaps abetting along the way a curious and unsurprising fiction.

Kidnapped Canadian, Part V: ICE Holds Kenneth Murray in Arizona For Weeks After DOJ Authorizes His Release

Drawing from recently obtained immigration court records, this is the fifth 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 (arrest in Sweetgrass, Montana); part three here (first immigration court hearing), and part four is here (second immigration court hearing). For entire series, click here and read from bottom up.

The image above is the Florence Correctional Center, run by the Corrections Corporation of America. Kenneth Danard was unlawfully held here from November 26, 2008 to January 20, 2009, wearing what he said his podmates in the custody of Immigration and Customs Enforcement (ICE) called "chicken yellow" jumpsuits .

On December 29, 2008 Bruce Taylor, an adjudicator employed by the Executive Office of Immigration Review, an agency of the Department of Justice, issued an order that ICE release Mr. Danard under the terms of a voluntary departure. Mr. Danard's wife Rachel immediately purchased a plane ticket and provided the confirmation number to his deportation officer for the purpose of arranging a trip to the Phoenix airport and a direct flight to Edmonton as soon as possible.

ICE ignored this information, and two subsequent notes from Mr. Danard pleading for a trip to the airport so he could leave his confinement, paid for of course by U.S. taxpayers.

(The eventual monetary cost of the FCC incarceration would be about $5,400, a figure that does not include the ancillary labor costs for the attorneys, immigration court adjudicators and staff, and other administrative expenses, including the time of the Canadian embassy staff. The costs to Mr. Danard's business also are not figured here, nor the incalculable price of the loss of his and his wife Rachel's faith in justice and fair play.)

ICE records released to the Canadian government and then to the Danards show that on January 8 and January 9 Mr. Danard's deportation officer (the name appears to be Schlung), responded to Mr. Danard's queries about his departure by saying arrangements were being made and he would leave "soon."

Under the terms of a "voluntary departure" a respondent agrees to leave the country at his own expense, usually a very expensive open ticket, so that ICE can arrange the trip to the airport at its own convenience. The incentive for this and not a "removal order" is that the latter not only imposes more stringent requirements for attempting to return but it also leaves one at the whim of the government-paid flights organized by the U.S. Marshals. By granting Mr. Danard voluntary departure the adjudicator was attempting to hold up his end of the coerced deal (see previous post) and allow a speedy return.

Mr. Taylor, when he gave ICE until January 20 or "any extensions as may be granted by the District Director, Department of Homeland Security" envisioned this outside date as allowing Mr. Danard the maximum flexibility in obtaining his plane ticket--not purchasing a ticket by the stated date would violate the terms of the voluntary departure agreement and allow ICE to remove Mr. Danard on its own planes and with more stringent conditions for his return.

ICE took advantage of the regulation's demonstrably unfounded assumption that ICE would not deliberately incarcerate at taxpayer expense someone who had the legal authority and means of leaving the country, and waited until January 20, three weeks after the hearing, before giving Mr. Danard his freedom.

ICE RESPONSE
Last month I sent ICE's Ernestine Fobbs a few questions about Mr. Danard's case, along with a privacy waiver signed by Mr. Danard. I asked if it was consistent with agency policy for ICE attorneys to file a motion to reopen without evidence sufficient to overcome a termination order, and also whether it was consistent with ICE policy to hold people for several weeks after they had procured an order for voluntary departure and a plane ticket to their home country.

Ms. Fobbs replied:

It is ICE's policy that we do not comment on ongoing investigations and
pending legal actions. However, for the information that you are
requesting you can submit a FOIA request.
http://www.ice.gov/foia/index.htm/.

In my response I pointed out that "ongoing investigations" and "pending legal actions" are two separate matters and asked which one specifically was the alleged grounds for not replying. And I mentioned that her last sentence appeared to be an error: "I am not sure how you understand that this is a request covered by the FOIA. The FOIA does not require agencies to produce new information about policies, as the
questions I posed anticipate."

The Freedom of Information Act covers only systems records, i.e., documents the government already has on file so to speak. The Public Affairs office is the appropriate office for reaching out to agency officials for answering policy questions.

Ms. Fobbs did not reply nor did she respond to two phone messages requesting elaboration. Moreover, in early September Mr. Danard finally received his DHS file in response to his own FOIA request. It is a 118 pages. 109 pages are blacked out. The FOIA exemption cited was a law enforcement investigation.

I recently noticed in correspondence forwarded to me by the Danards that in March, 2009 the Department of Homeland Security's Office for Civil Rights and Civil Liberties replied to the Danard's complaint about their treatment by stating that their letter was being forwarded to ICE's Office of Professional Responsibility (OPR), as this was the component appropriate for reviewing their concerns.

Rachel wrote that she tried to follow-up but nothing happened:

I phoned a few times, to inquire on our case. They kept telling me they never recieved my complaint, and I gave up, guessing that's what thay were tring to
accomplish, another DHS win.

The letter stating the matter was forwarded to the OPR would be seen by the FOIA office folks who would immediately flag that as a reason not to release the file, even if there was no actual investigation.

The DHS's abuse of the FOIA exemptions is not a situation unique to the Danards. In the case of Mark Lyttle, a North Carolina native who speaks no Spanish and whom ICE deported to Mexico, ICE refuses to respond to a FOIA request for his own hand-written grievances written while he was unlawfully locked up in the Stewart Detention Center in Lumpkin, Georgia. The office did confirm that he submitted eight grievances totaling 20 pages between November and December, 2008.

In Mr. Lyttle's case ICE is not even claiming that it has initiated an investigation but only that one is "pending," a position the DHS Office of the General Counsel upheld after I appealed it. (I stated that the time-lag between the events in question and the "pending investigation" was not consistent with any legitimate law enforcement efforts--what sort of inquiry is going to happen almost two years after the fact?--but was consistent with hiding behind this FOIA exemption to avoid transparency and accountability. (It is of course impossible to know if an investigation is actually pending until it actually happens; all we know for certain at this point is there is a possibly pending investigation. This obfuscation is typical of ICE, which refuses to provide a time frame for falsifying its assertion of a pending investigation.)

Mr. Danard writes, "John Lennon summed it up when he said our leaders are all insane."

CONCLUSIONS
Many of Mr. Danard's problems occurred because bad laws authorized a context for empowering ICE and border patrol agents to think they could behave unlawfully as well. For instance, a law that authorizes the government to keep people locked up WITH NO REGULATIONS governing their treatment is going to empower the people running these places to feel authorized to do anything at all, as is a law that allows the government to lock up foreigners without assigning them legal counsel.

Likewise, a law whose purpose is to give special privileges to Canadians needs to be rewritten when its effect is to deprive them of their liberty, and the same for the voluntary departure regulations.

Still, there are at least two moments of Mr. Danard's apprehension and incarceration in which the government clearly broke even the flimsy laws that might have protected him:

1) The Border Patrol agents in Canada deliberately provided false and misleading information on the charging document--they only had legal grounds for charging him with being inadmissible at their own port of Sweetgrass, Montana, and not El Paso, the port indicated on the Notice to Appear. Instead, knowing that Mr. Danard had left the U.S. and therefore requiring him to apply to re-enter from Canada, and knowing that he never entered El Paso as a B-1 visitor, these agents deliberately omitted crucial information that would exonerate him and stated false information consistent with immigration violations that were the basis of a false arrest.

DHS components have the authority to hold someone who is inadmissible at the border, but DHS components do not have the authority to do so under false pretenses and deny those in their custody due process rights, most importantly the right to know why one is being held.

2) No one from DHS at the port, in transit, or even when Mr. Danard was in ICE custody for 9 weeks, gave him a copy of the charges against him, nor did his deportation officer meet with him even once. (ICE claims deportation officers meet with incarcerated people at least once weekly, a statement that people who are being held find a joke. I have never encountered anyone in ICE custody whose deportation officer has met with them weekly.)

If someone is held without legal authority and moved across state lines without his consent, this is kidnapping. Mr. Danard's legal custody by ICE requires that it follows certain steps, including most importantly, allowing him to know the conditions under which he is being held and giving him a list of people who might provide legal assistance. The officers signing off on the lines verifying Mr. Danard's receipt of these documents, including his alleged request for a hearing as opposed to waiving this right, say these documents were "refused," evidence consistent with Mr. Danard's claim they were never provided to him. (Further evidence of this is that the Canadian officials had to obtain the charges from the U.S. government and share them with Rachel, weeks after Mr. Danard's arrest.)

It is one more black mark on the immigration courts in ICE jails that not one but two adjudicators, including Bruce Taylor, who made a big show of Mr. Danard's "rights advisals" at the beginning of the hearing, failed to ascertain that through the course of two hearings, and eventually his entire time in ICE custody, Mr. Danard had never received a copy of his charges. ICE agents know these are systemic failures and rely on the incompetence of the adjudicators to cover-up their document fraud.

3. ICE is abusing the FOIA exemptions for law enforcement investigations, not surprising in light of the darkness advocated by the White House and Attorney General more generally.

Finally, the Danards are furious at their own government as well, for not pressing harder on the U.S. to assist in Mr. Danard's release. However, Canada has its own border policies and is upsetting U.S. citizens who, for instance, are refused admission because of drunk driving records--one of the few countries to make this grounds for inadmissibility--or for left media affiliations. Canada makes mistakes and holds people at their own ports for hours and even longer, posing significant hurdles to travel that perhaps gives the Canadian government pause when it comes to questioning the egregious practices of its neighbor.

Mr. Danard writes, "As to all this immigration nonsense, it bothered me watching my European counterparts deporting so many folks whose ancestral roots were at least American, be it north, central or south. Most of us are immigrants. I raised three Ojibwa step-sons. Maybe one day they will deport us back to Europe."

CNN Covers Deportation of Luis Alberto Delgado, US Citizen

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

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

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

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

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

Kidnapped Canadian, Part IV: ICE Coverup and Extortion

Drawing from recently obtained immigration court records, this is the fourth 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; part three here. For entire series, click here and read from bottom up

The image above is the Canadian Consulate in Los Angeles, where Mr. Danard's own government unsuccessfully attempted to intercede and obtain his freedom.

On December 8, 2008, Mr. Danard won, ICE lost, and hence Mr. Danard was hoping to fly home immediately. However, unlike real judicial proceedings in this country, if the government loses its case in an immigration court it has 30 days to decide on whether it will appeal the decision. After it files the appeal, it will take several months, and some cases more than a year, for the Board of Immigration Appeals to rule on the matter. Pending the final decision, a respondent whom the government is alleging is deportable because of criminal convictions must await the outcome behind bars.

The result is that even when ICE loses the case on its merits, it has the legal leverage to force respondents into falsely confessing to the government's charges purely to avoid further delays in their release. In most cases, this coercion occurs with people who would like to remain in the United States, and hence there is a substantive good at stake--a non-citizen's right to U.S. residence--that gives these appeals some appearance of legitimacy.

In Mr. Danard's case, the record described below, including a signed form delivered to his deportation officer the day he arrived in Florence, Arizona, shows that ICE deportation officers and attorneys knew that he wanted to leave the United States, and yet nonetheless sought to prolong proceedings for only one purpose: achieving an ICE "win" at the expense of actually allowing him to leave the United States at the earliest point possible.

ICE MOTION TO REOPEN
On December 11, 2008, Robert Bartlemay, Sr., on behalf of the Department of Homeland Security, filed a Motion to Reopen Mr. Danard's case.

The motion contains numerous errors of fact revealing evidence of the DHS effort to run roughshod, and quickly at that, over Mr. Danard's rights, including the first sentence stating that Mr. Danard (his full name appears as the respondent) was in removal proceedings "under the name Guillermo G....." (last name omitted to protect someone else's privacy).

The rest of the motion is similarly out of touch with reality, including the statements that at his December 8, 2008 hearing Mr. Danard "admitted the allegations on the NTA," the charging document, and that he admitted that he "traveled to Mexico to buy a car." (Mr. Danard never conceded that he committed a Crime Involving Moral Turpitude, and he never stated that he flew to Mexico to buy a car; as indicated in the first post, he flew to Mexico for a vacation and ended up buying a car to drive back with stray puppies he and his wife Rachel were rescuing.)

The DHS needed to invent this motive of a car purchase because it would justify the fabricated statement on the NTA that Mr. Danard was in removal proceedings for violating conditions of a B-1 visa, a visa issued for business purposes. However, Mr. Danard never had a B-1 visa, nor did the government show otherwise.

Instead, the U.S. government created a story and, the day of Mr. Danard's arrest, lied to officials from the Canadian Consulate and claimed that he "knew he wasn't supposed to enter the US because he told officers that the was aware of this, but thought he would gamble anyway." In the margins, Mr. Danard has written, "These statements are completely false. Never would have risked going to gaol in your country."

The DHS Motion to Reopen attaches a list of Visa Waiver countries and proves that the immigration judge Richard Bartolomei incorrectly stated that Canada was among them. (Ironically, the purpose of this omission is to give Canadians the benefit of appealing a deportation order issued at the border in an immigration court, unlike Visa Waiver countries to which those prohibited entry must immediately return. DHS was turning a regulation designed to assist citizens from our friendly neighbor into a weapon for assaulting under pretense of legality a guy with long hair, a beat up VW, and puppies.)

Crucially, the DHS Motion to Reopen never offered new facts to challenge the initial decision's conclusion that the 1984 Burglary was NOT a Crime Involving Moral Turpitude. With no legal opinion supporting this charge, the government had no evidence for excluding Mr. Danard and ICE had no excuse for continuing to hold him in its jails.

Therefore, while the Motion might be relevant for the adjudicator's continuing legal education, it had no bearing on the government's legal authority to keep Mr. Danard locked up.

At this point Mr. Danard had been in touch with Katie Ruhl, an attorney at the Florence Immigration and Refugee Rights Project, a Legal Orientation Program in the area that provides limited legal advice and assistance to individuals in addition to its "Know Your Rights" presentations. According to email traffic from the Canadian Consulate in Los Angeles, who had been hearing from Rachel Danard and were trying for weeks without success to reach an ICE deportation officer, Ms. Ruhl had been in touch with Mr. Bartlemay, the DHS attorney, and obtained his agreement to drop the appeal and use the Motion to Reopen as an occasion for procuring Mr. Danard's release IF Mr. Danard stipulated that his 1984 burglary conviction was a Crime Involving Moral Turpitude.

This may look like a standard plea deal like those struck in criminal courts every day, but this deal was being offered AFTER an adjudicator had ruled against the legal conclusion forwarded by the DHS. In other words, the DHS knew that during the first hearing the immigration judge had thrown out their theory that Mr. Danard had committed a CIMT, and they knew that the immigration judge had ruled against allowing them an extension to pursue a fishing expedition to find something that might disprove his conclusions, and yet nonetheless went ahead and forced Mr. Danard into a hearing at which his only option for release from his unlawful confinement was agreeing to a statement that a Department of Justice official was on record as holding was untrue.

The second hearing was on December 29, 2008, over a month after Mr. Danard was kidnapped, and occurred before adjudicator Bruce Taylor, again in the Florence Service Processing Center, an ICE jail where, with other respondents, Mr. Danard had stood in a small room for hours before appearing in court.

Before arriving at the hearing, there had been several phone calls among officers at the Canadian Consulate, including those reflecting telephone conversations with DHS officers, although it was not until December 18, almost a month after Mr. Danard was in ICE custody that consular officer Marie Dextraze was able to actually reach a deportation officer in Arizona. She wrote to her colleagues that the officer had spoken "with the lawyers (did not elaborate, but likely the prosecutor) who would like for them to obtain copies of subject previous convictions in Canada. Officer [blank] asked if this is something we can assist with." This further proves that ICE was trying to deport Mr. Danard based on evidence that it did not possess, and that the agency was unwilling to heed the Canadian government's request to simply allow Mr. Danard to leave, rather than holding him and forcing him to leave.

The crucial part of the note states that Ms. Dextraze also spoke with Ms. Ruhl who

advised that she had spoke with the subject's prosecutor, Mr. Bartlemay, who would be willing to allow the subject to apply for voluntary departure. She explained that they were preparing a letter to the judge, who is absent until Dec. 29th, who would then reconsider then case, then make a ruling, [and] if all parties agree with voluntary departure travel arrangements would need to be made. This process would be much quicker than appeal which could take 4 to 6 months. She could not say why lawyers would be requesting info on subject's previous convictions other than to bolster their case for inadmissibility into the US.

Mr. Danard says, "To me it was extortion, and that's how it played out in the next hearing. If I admitted I was removable I would be cleared for voluntary deportation. If I wouldn't admit that, I would have to come back February 2d to prove why my crime in Canada was petty."

The second hearing opens, as did the first, with Mr. Danard saying, "I'm just looking for a way back to Canada. I'm a tourist, not an immigrant."

After swearing in Mr. Danard, the adjudicator, Mr. Taylor, asks if he was admitted into El Paso as a B-1 visitor. Mr. Danard, who still has not seen the charging document on which Mr. Taylor is relying, never answers the question and the adjudicator never bothers to look for government documents that might prove this allegation. (Again, none exist.) Crucially, once again, Mr. Taylor never bothers to check for Mr. Danard's signature on his Notice To Appear nor inquire if he received this.

Bruce Taylor, Immigration Judge, Florence, Arizona

The adjudicator, Mr. Taylor, asks the government if it has the conviction records, and the woman presenting the case for the DHS -- her identity is not provided -- says, "No, your honor." In other words, rather than spend its time securing proof that Mr. Danard was convicted of a CIMT, the government used its resources to pressure Mr. Danard into conceding this, hence obviating the need for evidence.

Mr. Taylor then pushes Mr. Danard to concede that he really was convicted of a CIMT. Mr. Danard had reason to believe that the description Mr. Taylor was giving him for a CIMT, "evidence of entry or remaining on the premises in a building or structure with intent to commit a theft," did not fit the circumstances of his own conviction, and when he hedged on agreeing he was convicted of a CIMT Mr. Taylor added, "If you want to contest your removability then we can set it for another hearing probably for February 2 or 3, and the government would have to get copies of your conviction records."

Why threaten this additional extension? This was the hearing scheduled following the court's acceptance of the DHS Motion to Reopen. If the government had no evidence to support the charges in the NTA, then why not do what Mr. Bartolomei did and simply terminate the proceedings, again?

There are three reasons the adjudicator may have had for doing this. First, most immigration judges come out of law enforcement backgrounds, including ICE, and are deferential to those holding these positions. Second, many also are are nervous that they might be throwing out a case for lack of evidence and then the respondent, on release, commits a horrible crime and the media blames the adjudicator. (In fact, this actually happened to Mr. Taylor two years later.) Third, immigration judges know that if they rule against the government instead of rescheduling, then the government will file an appeal, a process that will take months, and hence actually result in the unfair confinement of a respondent for a period longer than than if they reschedule.

Now that 50% of all immigration cases involve people who are locked up, the regulations fixing these parameters need to be revisited. Again, there is nothing about Mr. Danard's hearing that is unusual. But only rarely is the government's ability to abuse its regulatory discretion so clearly revealed.

Eventually, after Mr. Taylor asks Mr. Danard for the third time if he agrees that his conviction meets the conditions for a CIMT, Mr. Danard says, "I have no contest with the removal proceedings. I have no fight left in me." A few minutes later the government agrees to allow Mr. Danard to buy a ticket and leave as soon as the appropriate information is shared with his deportation officer, and Mr. Taylor suggests that Mr. Danard will be out soon. Mr. Taylor never hints that even though everyone had agreed Mr. Danard should be home, it would be three more weeks until this happened.

Final post tomorrow on how ICE held Mr. Danard for three weeks AFTER he purchased an open ticket to Canada, and the Danard's dissatisfaction with their own government's efforts on their behalf.

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.)

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