Deported U.S. Citizen Andres Robles Wins $350,000 Settlement, Records Corrected

    

Deported U.S. Citizen Andres Robles Wins Record $350,000
 False Records Corrected

Analysis of EOIR Cases Adjourned with Claims of US Citizenship: ICE Still Detaining and Deporting U.S. Citizens as Aliens, and Still Lying about It

Update covers (click to move directly to the section)
*Deported U.S. Citizen Andres Robles Settles Lawsuit
*U.S. Government Detaining and Deporting U.S. Citizens: Recent Timeline
*Analysis of Recent Data on Immigration Court Cases: "Alien Claim to U.S. Citizenship"
*Detained U.S. Citizen Jhon Ocampo
*Lawsuit by Deported U.S. Citizen Robert Dominguez, Government Fraudulently Revokes his Passport
*Deported U.S. Citizen Demetrious (Jim) Koukolomates in Greece, Attorney Andrew Free Obtains Termination Order, February, 2015
*Why this Matters, and Remedies


Andres Robles was 19 years old in 2008 when Immigration and Customs Enforcement (ICE) agents in Louisana ignored his claims of U.S. citizenship, as well as their own files that readily affirm this status, and deported him to Mexico for three years. 

Eventually U.S. Citizenship and Immigration Services (USCIS) saw fit to issue him a Certificate of Citizenship, but there was a problem. Since the government had deported him, the government could not provide him with the certificate, government employee Jonathan Crawford, New Orleans Field Director, helpfully pointed out:

Your N-600 Application for a Certificate of Citizenship was approved on June 15, 20011 [sic]. You derive [sic] citizenship on June 13, 2002, when your father became a naturalized citizen of the United States. However, since you were deported from the United States, we are unable to complete the N-600 application process and provide you with a certificate of citizenship.

Upon your return to the United States, please make an appointment at the USCIS office closest to your current location. At that time, the local office will be able to assist you in obtaining your certificate of citizenship.
Andres this letter confirming his U.S. citizenship, a Vice Consul with the U.S. Department of State denied Andres a U.S. passport document. In his denial letter, the Vice Consul stated: "[I]t does not appear that you have a claim to U.S. citizenship[.]”

Andres eventually made his way back in, thanks to the persistence of immigration attorney Larry Fabacher, who had to badger the U.S. government for months after the USCIS confirmed Andres's U.S. citizenship.

Just days after Andres returned to the United States with a U.S. passport card in August 2011, ICE issued ANOTHER immigration detainer against him, causing several more days of illegal detention.

The errant paper trail ICE created and then failed to correct apparently prevented Andres from obtaining a Social Security card, Louisiana Driver's License, and the everyday benefits citizens derive therefrom.  Following several unsuccessful efforts by his older sister, Maria, to obtain legal counsel seek remediation, civil rights attorney Andrew Free, who represents the Deportation Research Clinic in our FOIA litigation, stepped in at the request of the Clinic and filed suit.  

Extensive discovery ensued, including revelations that the government was well aware of their mistake and were doing nothing to remedy it. Finally, on May 1, 2015, the United States Government agreed to correct Robles's records of all references to his "alienage" and deportation, and to pay Andres $350,000 in damages.

Absent such an intervention, U.S. government records would have recorded Andres's deportation as that of one more "criminal alien."  The lawsuit not only provides Andres well-deserved compensation, it also corrects the record, a key objective for the forensic intelligence paradigm that guides the Deportation Research Clinic scholarship. Lawsuits such as these provide data necessary for accurate scholarship and journalism on U.S. deportation policy; they highlight the criminal misconduct perpetrated by the government in contrast with putative civil infractions of immigration law Immigration and Customs Enforcement is authorized to prevent. 

(For more details, see the Andres Robles tag on the blog States Without Nations, which broke the story and followed Andre's efforts to return in 2011.)

U.S. Government Still Detaining and Deporting U.S. Citizens

Andres is not the only U.S. citizen deported and seeking redress.  This update provides analysis of data on U.S. citizens in deportation proceedings from January 1, 2011 to September 30, 2014.  And it updates the status of two other deported U.S. citizens: Massachusetts native Roberto Dominguez, deported when he was 19 to the Dominican Republic and U.S citizen Dimitrios Koukoulomates, unlawfully banished at the age of 42 to Greece, a country he had not been to since he was a child.  

Journalists and scholars have been reporting on these violations throughout this period, but to no avail.  In the last decade, officials of Immigration and Customs Enforcement (ICE) went from stating they did not know how often this occurred, to categorically denying these events, to claiming, in 2013, that the practice had occurred but new steps by the agency had corrected this and the problem was historic.

Timeline of ICE Statements on the Unlawful Detention and Deportation of U.S. Citizens: Key Statements and Actions

2008
ICE IN DENIAL
- Several U.S. citizens in the presence of ICE Assistant Secretary Gary Mead testify at Congressional hearing about their experiences being arrested and detained by ICE. 
Mead sticks to script and pretends as though they never gave the testimony he just heard. Claims ICE has no record of US citizens in ICE custody.
"Problems With ICE Interrogation, Detention, and Removal Proceedings," Hearing before the House Subcommittee on Immigration, Citizenship, Border Security, Refugees, and International Law, House Judiciary, 110th Congress, June 4.

-"ICE does not track the number of U.S. citizens it detains."
ICE attorneys responding to an inquiry by the House Subcommittee chaired by Zoe Lofgren looking into U.S. citizens detained  problem. 
From Problems With ICE Interrogation, Detention, and Removal Proceedings, Hearing before the House Subcommittee on Immigration, Citizenship, Border Security, Refugees, and International Law, House Judiciary, 110th Congress, Report, Note 5 at 139.

-"ICE does not knowingly detain U.S. citizens."
ICE spokesperson Brandon Alvarez, email to Stevens for a Nation magazine article.
"Thin ICE."


2009
ICE PROPAGANDA-I
CATEGORICAL DENIAL
-"ICE does not detain U.S. citizens."
ICE spokespeson Richard Rocha in interview.
Andrew Becker and Patrick McDonnell, "U.S. Citizens Caught Up In Immigration Sweeps,"Los Angeles Times, June 9.

-"ICE never detains U.S. citizens."
ICE spokesperson Barbara Gonzales, in response to my follow up questions, telephone, June 9, 2009.  

late 2009-2010
ICE TRIES TO MANAGE THE PROBLEM
-ICE establishes e-mail address for reports to headquarters of claims to US citizenship for those in ICE custody.  4,000 pages of email responsive to this are produced between its inception on November 19, 2009 and March 1, 2010. 

2011
DETAILED DOCUMENTATION ON ICE DETAINING AND DEPORTING US CITIZENS
- Stevens publishes 115 page analysis of ICE detaining and deporting U.S. citizen, shows from 2006-2008, one percent of deportation proceedings in southern Arizona detained population (10% of country, most from California jails), terminated because of U.S. citizenship and an estimated .5% of deportations as U.S. citizens. Analyzes protocols for 53 deportions of U.S. citizens. "U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens" Virginia Journal of Social Policy and Law, 18(3).

-Articles in national and local newspapers continue to document U.S. citizens in ICE custody and deported. Here are three examples.

Sandra Baltazar Martinez, "Santa Fe Man One of Thousands of Legal Citizens Incarcerated by ICE," Santa Fe New Mexican, November 20.

Paul McEnroe, "U.S. Citizenship No Defense Against Deportation," Minneapolis Star-Tribune, December 11.

Julia Preston, "Immigration Crackdown Also Snares Americans," December 11. (Please go here for 2011 correction of Preston's now demonstrably inaccurate claim that there were no U.S. citizens in 2011 who had been deported.)

Ted Robbins. "In Rush to Deport, Expelling U.S. Citizens," NPR, October 4.

2012
ICE CONCEDES IT IS DEPORTING US CITIZENS, CLAIMS REMEDIATION
-Teenage Houston native Jakadrian Turner attracts national attention when she returns from her deportation to Columbia.
Patrik Jonsson, "Deported Teen Returns to the U.S.  How Many Americans are Mistakenly Banished?" Christian Science Monitor, January 7.

-ICE propaganda machine shifts from denying ICE ever deports US citizens to publishing an announcement of toll number for US citizens in ICE custody.

link to archived ICE home page with advertisement of toll free number here
link to archived release page here

2013
ICE PROPAGANDA-II. 
ICE HAS STOPPED DEPORTING U.S. CITIZENS  

-In April, the New Yorker magazine publishes an article reporting on Professsor Stevens's research on the deportations of Mark Lyttle and other U.S. citizens.

-In May, the New Yorker publishes a letter responding to the article by John Morton, then ICE Assistant Director, stating that Lyttle’s experience was a “rare and unfortunate case dating back to 2008” and that ICE had “new safeguards to protect against the possibility of a citizen’s detainment or removal.”  The claim is not just that ICE is protecting against a citizen's detention, but that ICE is protecting us from even the possibility of this occurring.

2014  
ICE STILL DETAINING US CITIZENS
EOIR FOIA Case No. 2014-23528 

The Executive Office of Immigration Review releases to the Deportation Research Clinic data on 1,219 individuals with immigration court hearings between January 1, 2011 and September 30, 2014 whose cases have adjournment codes indicating "Alien Claim to U.S. Citizenship," an oxymoron for a hearing that may determine the adjournment was because of a U.S. Citizen Claim to U.S. Citizenship.

256 orders terminated for cases adjourned because of "aliens" claims of U.S. citizenship, an unknown portion of all cases in which U.S. citizens receive deportation orders.  

2015
Propaganda-III
RELEASE REVEALS MORTON LIED IN NEW YORKER LETTER
After reading Morton's letter, Clinic Director files request for all documents on which Morton relied in drafting this reply.
109 page file is incomplete but shows that when Morton wrote the letter he was aware of cases of US citizens in ICE custody AFTER the implementation of the third wave of "new" protocols.
Cover letter on scope of response
ICE FOIA Case No. 2015-ICFO-00500 Response

Morton has in his possession several cases, including an Indiana ACLU demand for jury trial for naturalized U.S. citizen in ICE custody, an Illinois U.S. citizen in ICE custody for six days, and a New Jersey born U.S. citizen in ICE custody, as well as a memorandum directing "aliens to call the LESC if they a United States citizen..."

The position seems to be that if ICE admits it holds U.S. citizens for hours or days, and covers up the longer detentions documented below, then then it's okay to call them "aliens" and give them a phone number, avoiding the legal fact that even in these cases there was no probable cause for suspecting alienage other than racial profiling and that ICE holding U.S. citizens in these circumstances is false imprisonment and kidnapping.

The release also contains several cases in which there are complaints of US citizens in ICE custody and ICE field office denials, but no investigation of the accuracy of the field offices's responses.  Morton has no basis for crediting the self-serving narratives provided by the ICE agents who have U.S. citizens in their custody. Unless there is a lawsuit, the ICE claims will prevail but could be inaccurate.

Jhon Ocampo
For instance, one of the items in the release of ICE documents on U.S. citizens in Morton's possession references ICE's arrest of U.S. citizen Jhon Ocampo, and includes this link to its first report on States Without Nations, as well as reference to inquiries by a "liberal weekly alternative newspaper in Springsfield."  The ICE narrative Morton has claims that once Ocampo produced documents proving his U.S. citizenship he was released, six days later.  But that's just wrong, AND, it doesn't match the Answer the government gave two years later, after Ocampo filed his lawsuit.

Ocampo actually proved his U.S. citizenship the same afternoon the agents arrived at his house and arrested him--his state identification showed who he was and DHS had the records showing when his mother naturalized when Ocampo was under 18. ICE released him only after the attorney Ocampo's mother hired called and not because of new documents. The attorney had no additional documents, suggesting ICE knew all along it had no case and folded quickly when called on their bluff.  By stating otherwise, the ICE agents lied to Morton and everyone else.

Also, what is the legal basis for holding him after he's asserted his U.S. citizenship and ICE has all the evidence it needs for confirming this? What about the revised policy indicating people claiming U.S. citizenship should not be held?


From a comment left on the Ocampo post:

Anonymous said...

These same agents illegally arrested my husband, a US citizen, born and raised here by US Citizens, and within our borders! I have been hoping you would file a civil rights suit against them and was glad to see you did. Rock on!

They took him to that same house. He spent a horrible night in the snake pit that is Sangamon Jail. I will be watching your case carefully and cheering you on!

May 30, 2014 at 12:55 AM

Mark Fleming at the National Immigrant Justice Center in Chicago is representing Ocampo.

The complaint is here.

The government answer is here.

Note that in the original narrative, ICE claims they held Ocampo until he produced documentation of his U.S. citizenship, and never denies he immediately asserted his U.S. citizenship, nor claims that on the date of his arrest he represented himself as a legal permanent resident.

But in their answer to the lawsuit two years later, the government claims Ocampo never asserted his U.S. citizenship until after he was held for six days and that six days after his arrest Ocampo's attorney informed Ocampo of his U.S. citizenship, claiming that before that Ocampo "represented to the Department of Homeland Security that he was an LPR."

Ocampo's story is consistent: Ocampo told ICE agents Glen Harrington and Michael Mitchell that he was a U.S. citizen immediately on their arrival to arrest him. The agents in Ocampo's presence spoke on the phone with his mother, who also told them that she and her father had naturalized and their son was a citizen.  The initial narrative elsewhere in the Morton release also indicates the ICE Springfield office did not have Ocampo's file, further undermining the credibility of the account in their Answer.

The ICE claims at different time frames contradict each other, but the pervasiveness of their inventions themselves is persistent, from the bottom up and the top down.  If any other organization were run in a fashion that financially incentivized lying to law enforcement in service of holding people without legal authority the leadership would be immediately charged with everything from RICO violations to kidnapping. The DOJ at least on occasion investigates these scenarios when it is local police agencies but ignores this daily, widespread malpractice by federal agents.

Analysis of Cases Adjourned Using a Code for Claim of U.S. Citizenship:
January 1, 2011 to Septbember 30, 2014

Clinic Research Assistant Elizabeth Meehan found:

-256 cases terminated following claims of U.S. citizenship

-51 cases closed administratively

-10 cases closed by ICE prosecutors
 
In sum, in 21% of all cases immigration judges at some point adjourned because of U.S. citizenship claims, the immigration judges wrote orders affirming the claims of the respondents.

In additional 5% (n=62), ICE abandoned the deportation proceedings, for a total of 26% of cases terminated or otherwise closed following claims of U.S. citizenship. 

For the underlying spreadsheet, see EOIR FOIA Case No. 2014-23528

These 1,219 cases are not the total number of cases in which respondents asserted U.S. citizenship, but a fraction of an unknown total.  Even though these data provide no information on the absolute numbers of US citizens in deportation proceedings they reveal several important pieces of information.

1)  109 U.S. citizens were in ICE jails on the date when their orders were terminated; an additional 47 had been in ICE custody on charges of alienage and were released before their final hearings.

2)  Those not in ICE custody prevailed in 44% of their claims of US citizenship (n=147 terminations, n = 334 never detained or released), compared with 12% percent for those who were detained (n=109 terminations, n = 886 detained).

3)  All 10 cases dismissed by prosecutorial discretion were for respondents with attorneys; 82% of cases closed by adjudicators for non-detained respondents had attorneys (n = 23 non-detained closed); and 50% closed by adjudicators for detained respondents had attorneys (n=28 total closed).

4)  The Oakdale, Louisiana Detention facility, where Andres was held, reported 74 cases adjourned because of claims of U.S. citizenship, of which 10 were terminated. 

  

2013 Detained U.S. Citizen Frank Serna Calendar: No Adj. for USC Claim

It is important to underscore that the FOIA dataset on which the above analyses are drawn is incomplete. It omits all cases in which respondents claimed U.S. citizenship and an immigration judge used a different adjournment code, e.g., one for seeking time to find an attorney, as happened in Andres's case, or that of Francisco "Frank" Serna, a U.S. citizen in ICE custody for over 13 months who contacted me about about his detention a week after the New Yorker published Morton's propaganda.

Immigration Judge Jimmie Benton coded the adjournments in Serna's case as being for adjudication of an application for a green card (I-130), not a Certificate of Citizenship (N-600).  So U.S. Serna, who TWICE had his deportation orders terminated because ICE could not prove alienage, does not appear in the EOIR release data as claiming U.S. citizenship.  (The references to Serna filing an application are all to his application for a Certificate of Citizenship.)





ANALYSIS
The higher rate of termination orders among those never detained cannot be explained by correlating this status with a likelihood of prevailing on their citizenship claims.  Deportation custody determinations are based on whether an individual is a "danger to the community" or a "flight risk." Congress requires mandatory detention in immigration jails of putative non-citizens convicted of an aggravated felonies following the conclusion of their prison sentences.  Those in detention pending deportation proceedings are more likely to be there because of prior criminal convictions than those who are lack a criminal record.  Previous research on U.S. citizens whose deportation occurred between 2003 and 2008 revealed they all were in ICE custody following their release from prison or jail.  

In other words, U.S. citizens who are incarcerated are more and not less likely to end up in removal proceedings than those who have no criminal record.  

Therefore, the lower rate of termination orders for those asserting U.S. citizenship while in ICE custody (12%), compared with 44% who prevail among those not detained, strongly suggests a false determination of the citizenship status for poor men who are in prison, as was the case for Andres Robles, as well as Robert Dominguez, and Demetrious "Jim" Koukolomates, whose cases are discussed below.

Finally, the release also omits data for those who never appeared in an immigration court, but who simply agreed to deportation or were released, for instance, that of U.S. citizen Jhon Ocampo.

Roberto (Robert) Dominguez
In 1999, when he was 19 years old, Robert, was released from jail in his hometown of Lawrence, Massachussetts, where he was born.  Instead of a bus dropping him off at the downtown court house, he was taken to various facilities run by then Immigration and Naturalization Service (INS); appeared in immigration court in the Batavia, New York detention facility; and, without an attorney, asserted he believed he was a U.S. citizen, but then backed down after being handed inaccurate documents from his INS file and was "deported," an option only possible for aliens. 

After 10 years of wrongful banishment to the Dominican Republic, Robert procured a U.S. passport and returned home.  In 2010, instead of actions consistent with Morton's claim that the government was redressing old problems, the government reinitiated efforts to deport Robert, including in 2011 revoking his U.S. passport.  

In the last two years, Robert's legal team, led by Andrea Saenz of the Cardozo Immigration Justice Clinic, has filed a lawsuit demanding the State Department recognize his U.S. citizenship. 

The complaint has copious documentation of Robert's birth in the Lawrence hospital,  including the  from his basinette with his name, Baby Dominguez, as well as an original photograph from the hospital, also with the name Dominguez.  



The government's Answer is to conjure TWO Roberto Dominguezes. To advance this fantasy, they will need to show by a preponderance of the evidence that there are two Roberto Dominguezes who were both born to parents living at the same address, 70 Cross Street, Lawrence, Massachusetts; both born in November, 1979; and that the Roberto Dominguez suing the government somehow obtained the bassinette tag, birth certificate, and infant photographs of the U.S. citizen infant Roberto Dominguez and is using these ORIGINAL baby records from someone with the same name, physical characteristics, and other biological markers of U.S. birth, including the plaintiff's circumcision (not done in this time frame in the DR), to fraudulently assert U.S. citizenship.

If this is hard to follow, you've read it correctly.

Voicemail messages asking for an explanation of the government's position in its Answer, left for Brian Ward, the lead trial attorney representing the State Department, part of a team of six U.S. attorneys bilking the U.S. taxpayers of hundreds of thousands of dollars, were not returned.

For more background, please go here.

The Complaint is here.

The Government's Answer is here.

Demetrious (Jim) Koukolomates

On February 19, 2015, an immigration judge in York, Pennsylvania, based on motions and evidence provided by Andrew Free, terminated an errant deportation order that has banished Jim from the U.S. for the last 12 years.  Jim was born in Greece in 1962. 

Jim immigrated to the U.S. in 1978, after his father died. Jim, when he was 16, automatically acquired U.S. citizenship when his mother naturalized. These simple facts on which the adjudicator relied when 2015 have been in the possession of the United States for over 35 years.

Order for Matter of Demetrious (Jim) Koukolomates, York Immigration Court, February 19, 2015.

According to Jim, the problem began in his criminal bond hearing for a drug charge in 1990, when the prosecutor argued that Jim was not a U.S. citizen and thus a flight risk. The prosecutor was so vehement that Jim began to doubt his citizenship himself, "I believed a new law was installed and maybe I wasn't a citizen." The prosecution was arguing that Jim had to be under 16 years of age to automatically acquire citizenship through his mother, but the law plainly states a cut-off age of 18.  

While in prison he had a televideo hearing with adjudicator Charles Honeyman in York, Pennsylvania.  Honeyman ignored the statute, went along with the false claims asserted by the INS attorney, and in 2002 ordered Jim deported. In October, 2003 INS deported Jim, then 44, to Greece, a country he had not seen since he was a child.

Koukolomates describes the deportation as a “kidnapping,” and the State Department’s indifference to his request for a passport, “no different from Stalin’s Russia.”  

Despite the February order terminating the deportation and stating Jim is a U.S. citizen, the Athens consular office still refused to issue him a passport.  

On March 16, 2015, attorney Free filed a lawsuit against Secretary of State John Kerry and Abigail Aronson, Consul, Citizenship Section, U.S. Embassy, Athens.  The complaint sought "relief to compel the government to adjudicate [Mr. Koukoulomates's] passport action."

Three weeks after Free filed the complaint, and 25 years after federal prosecutors falsely stated the law on U.S. citizenship, the U.S. government finally recognized Jim's legal status as a U.S. citizen.

The insistence on an inaccurate rendering of law by the federal prosecutor in 1990, as well as the INS attorney and adjudicator in 2002 were hardly anomalies.

According to a 2013 federal appellate court decision, U.S. citizen Sigifredo Saldana Irachata's application for a Certificate of Citizenship was denied and he was in deportation proceedings because "no decision maker has clearly applied the correct Mexican statutes to Saldana's claim of citizenship."  The court goes on to note:

In both Saldana's case and other cases involving similar situations, DHS officers and the Administrative Appeals Office ("AAO") within DHS have relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claims they say. (Sigifredo Irachata v. Eric Holder, Jr., U.S. Attorney General, Case 12-60087 (Fifth Circuit Panel, September 11, 2013.)

The court ridiculed the government's excuses:  

Though the government attempted to dismiss the error as a mere 'typo,' we cannot agree.  It is unclear what legal authority the BIA actually relied on in Reyes...[T]he BIA's mistake in citing a non-existent constitutional provision, perpetuated and uncorrected by DHS in subsequent years, prevented the agency from making the correct inquiries or possibly from applying the correct law in subsequent cases.  That error has wound its way through multiple agency decisions in immigration matters, which are significant to the impacted individuals.The government's position is that simple typography in one specific case misrepresented the Mexican Constitution.  But the judicial panel states the government is disingenuous on this point.  

The court points out how the iterability of the government's invention produced the status and identities of numerous other citizens as aliens.  These decisions will ripple through the offspring of those registered on the basis of the BIA's version of the Mexican Constitution.

For over a hundred years, the U.S. government has been detaining and deporting U.S. citizens as aliens.  In recent years, approximately one in 100 cases in immigration courts will include someone whose deportation order is terminated because of claims of U.S. citizenship; an additional number of U.S. citizens make these claims but do not prevail and are deported, a figure that is about one half of one percent.

The basis for these estimates appears in recent work by Professor Rachel Rosenbloom at Northeastern University Law School, including her chapter forthcoming in Citizenship-In-Question: Forensic Challenges of Blood, Birthright, and Bureaucracy, Benjamin Lawrance and Jacqueline Stevens, eds. (Duke University Press), as well as earlier research cited above, along with the recent information presented herein: the procedures and cover-ups documented here indicate an absence of integrity and tolerance of systemic misconduct by ICE such that it would be shocking if U.S. citizens were not regularly detained and deported.

Likewise, some immigration court administrators and adjudicators, for instance, those in the Atlanta, Georgia, also perpetuate this problem.  (Forthcoming analysis of immigration judge misconduct complaints, undertaken with Professor Heather Schoenfeld and research assistants Elizabeth Meehan and Ary Hansen will elaborate on this.) 


Why This Matters

The detention and deportation of U.S. citizens demands attention for three reasons. 

First, the action is corrosive of the rule of law, so much so that one federal judge refused to recognize the "deportation" of North Carolina native Mark Lyttle to Mexico as such and called it"banishment."  If the government cannot operate in such as a way as to ensure its own citizens are not banished as aliens, it is abandoning any claim for our trust that the government will respect other rights that follow from this bedrock right to have one's citizenship recognized as such.

Second, the detention and deportation of U.S. citizens as aliens is the 900 pound gorilla in the mine, so to speak. That is, miners rely on canaries for sensitivity to toxic fumes that would take much longer to overcome human beings.  U.S. citizens have more robust Constitutional rights than non-citizens, especially in deportation proceedings, and thus their civic death reveals alarming information on the deportation industry's overall legal toxicity.  When
the U.S. government falsely dismisses the claims to legal residence *by U.S. citizens*, then that is an inherently alarming and not just cautionary index of its more general failures to recognize claims to legal residence by non-citizens.

Third, and finally, the government's response to these cases has been lies and propaganda, not firing the agents behind these actions, much less prosecuting them for false imprisonment or kidnapping.  The New York Times editorial board has rightly demanded radical changes of America's deportation system, including the immediate closure of the massive web of privately-run prisons.  

The conditions of unlawful violence and degradation inherent to the deportation machine are not only reprehensible in themselves, they also form the backdrop for the unlawful deportation U.S. citizens and other legal residents.

Changes Required

1.  The FBI's indictment of Denny Hastert for lying to them about private financial transactions suggests skewed priorities.  If the FBI wants to prevent assaults, robberies, and kidnappings of U.S. citizens and other U.S. residents in ICE custody, it should be prosecuting ICE officials and agents, including Ocampo's kidnappers Glen Harrington and Michael Mitchell, at minimum for lying twice, once in 2012 and a second time to the U.S. Attorneys handling their defense.  

2.An urgent short-term palliative would require government-funded assigned attorneys to those who are detained and in deportation proceedings. The cases referenced above occurred in the context of an adversarial system in which poor men of color are forced to battle the world's largest law enforcement bureacracy without even access to their own records that the government itself maintains and is using against them, often unscrupulously, much less professionals trained in deportation law and dedicated to serve as their advocates.  

3. Government Accountability Office Audit of Executive Office of Immigration Review record-keeping for errors and fraud.  

4. GAO Audit of ICE record-keeping for errors and fraud. 

5. More distant changes require allowing citizenship criteria based on residence and consent, not birth.
The problems above are not only about employee errors and fraud but reflect the impossibility of these categories for lives, histories, and countries that are in flux, mutually engaged, and not amenable to archaic classifications of the earth's residents as "aliens." A summary of the rationale for this appears here. For the theory and data, here's the book: States Without Nations: Citizenship for Mortals (Columbia University Press, 2009).

For more on the Deportation Research Clinic, Buffett Institute on Global Studies, Northwestern University, please see our website: http://buffett.northwestern.edu/programs/deportationresearch/

ICE Locking Up Hundreds of US Citizens in Recent Years, Chicago Case Suggests ICE Obstruction of Justice

click to enlarge

Data recently released by the Executive Office of Immigration Review (EOIR) responsive to my FOIA request shows ICE today still is holding US citizens from days to years prior to their cases being terminated or closed. 

JUNE 1, 2015 UPDATE--Following more detailed screens for duplicates and analysis of outcomes other than terminations or removals, a final analysis has been produced.  Please see here for final results and dataset. Also, Andres Joseph, to obtain his liberty from the McHenry County Jail, decided to accept an order deporting to Jamaica.  We are still awaiting the release of his full military file for evidence to corroborate his narrative of being naturalized in the time frame of his recruitment by the U.S. Navy in Springfield, Massachusetts.

Preliminary analysis of a small sample of EOIR data for hearings from January 1, 2011 to September 30, 2014 reveals EOIR adjudicators terminated 185 deportation orders and administratively closed an additional 53 cases after adjournments based on claims of US citizenship. Hundreds more were released from detention based on other forms or relief or because of prosecutorial discretion.  (These figures refer only to those detained.)

These data were released responsive to my request for cases associated with an adjournment code available for when there is a claim of US citizenship.    Adjudicators hearing these cases may use an adjournment code for US citizenship, but they also may use a more generic code associated with searching for representation.   This means that the cases released are an unknown portion of the total number terminated because of US citizenship.

Also, I can see from my own records that even those whose Record of Proceeding indicates an adjournment because of a claim of US citizenship in this time frame are not showing up in the data released to me.  (In fact, none of the cases with records I possess and know were terminated in this time frame are showing up in the EOIR spreadsheet.)

The EOIR data I am now analyzing, with the assistance of Northwestern student Sam Niiro,  are useful for examining what happens to some of those who happen to have their cases coded this way -- I will be publishing more on this at a later date -- but they tells us nothing about the actual numbers of U.S. citizens ICE has arrested nor their treatment.

Nonetheless, one thing we do know: long after John Morton, Director of ICE Enforcement and Removal Operations, issued a memorandum requiring the release of those with probative evidence of their U.S. citizenship, and after his 2013 letter to the New Yorker claiming ICE may in the past have apprehended U.S. citizens but had stopped, ICE is persisting in locking up US citizens absent any legal authority to do so.

I'm releasing this preliminary count now because it contextualizes what ICE agents and attorneys have been doing to Andre Joseph, who on September 16, 2014 wrote me a letter stating he had been arrested by ICE in Chicago after showing up for his Infopass appointment.   He'd read his wife's New Yorker magazine article describing my research on Mark Lyttle, who was born in North Carolina and deported to Mexico, even though he had never been there, had no relatives there, and spoke no Spanish.

I am another  "Mark Little"! [sic]
ICE Use of Fraudulent Data Violates Due Process

Andre Joseph has been in ICE custody in Chicago since September 9, 2014.  Joseph himself had been deported and, back in the U.S., was trying to obtain paperwork from his 1984 naturalization.

 Joseph is concerned about the fact that after he was arrested ICE agents ignored his requests for an N-600 form (so he could obtain his already existing Certificate of Citizenship) and then, after he obtained one, failed to help him procure the passport photos necessary for its submission.

According to Joseph, when he was 18 he went to the federal building in downtown Springfield, Massachusetts to take the test for joining the Navy.  His recruitment officer told him to go upstairs and naturalize. Joseph says he passed the test and was sworn in as a US citizen, but was so anxious to cram for the military exam that he dashed back downstairs before picking up the certificate.

The regulation on citizenship states that the effective date of naturalization is the day one is sworn in (8 CFR 1337.9).  Joseph says he surrendered his green card and did everything he was supposed to do, and that the folks in the military office congratulated him on his citizenship and made positions available to him in the Navy that would not be available if he had not become a citizen.

Consistent with Joseph's account is that there is indeed a federal building on Main Street (1550) in Springfield, just as Joseph testified last week at his hearing before adjudicator Richard Fujimoto,

 Further confirmation is that the same building housed a US Navy Recruiting office,

AND, still has DHS offices,

,
(RAC = Resident Agent-in-Charge)


According to Northwestern student Hayley Hopkins, who observed the televideo hearing last week in downtown Chicago, the government trial attorneys tried discredting Joseph by claiming that in this time frame, he would have needed a judge to perform the ceremony.

Maybe, maybe not.  Either way, the ICE attorneys never informed adjudicator Fujimoto that until 2008, the federal building at 1550 Main Street, Springfield also housed the U.S. District Court of Western Massachusetts.

Joseph's narrative suggested the recruiters there routinely were naturalizing the new recruits and it is plausible they had an arrangement with the federal judges to facilitate this in an expeditious fashion, i.e., that day.  (It also could have been coordinated through a Massachusetts program also housed in the building, which focused on attracting and supporting immigrants in the region.)

Also consistent with Joseph's narrative of effecting his naturalization in 1984 is the E-Verify print-out Joseph's wife brought with her to the hearing last week.  (She runs a small business and in 2012 used the interface to inquire into her husband's status.)

click to enlarge

Hopkins told me she was shocked that the DHS attorneys, and also adjudicator Fujimoto, appeared to have no familiarity at all with E-Verify, which since 2008 has been using social security cards tied into Citizenship and Immigration Services databases that automatically update citizenship status after naturalization.  (This recalls retired adjudicator Jimmie Benton's observation about the poor training EOIR provides its adjudicators.)

click to enlarge

The trial attorneys claimed to have exhaustively researched the case, but failed to mention any of the information above.

ICE public affairs director for the Central Region, Carl Rusnok, has ignored repeated inquiries by phone and e-mail.  (Typically they respond that they cannot comment on cases for privacy reasons, but since I attached Joseph's privacy waiver they just ignored the queries altogether.)

ICE Agent Obstruction of Justice and RICO Violations
At this point it is impossible to say whether the database will back up Joseph's narrative.  But it's also impossible to say if this is because Joseph is confused or because DHS components are altering or destroying records, as ICE agents demonstrably did when they reported the circumstances of Joseph's arrest.

This is a very serious problem.  The main evidence of citizenship and many other immigration claims lies in government maintained records.  If the government is manufacturing or hiding its own records, as it has clearly done with Joseph's arrest report, then we will never know what happened with Joseph in Springfield, Massachusetts in 1984.

"They're playing a game and they're not being truthful. They're lying now like they were lying back then," he said, referring to when an INS agent in 2002 told him that his bank robbery conviction meant his citizenship was being revoked.    

ICE agents arrested Joseph at the Infopass appointment.  But the arrest report claimed he was arrested at his residence.

click to enlarge

101 W. Congress Parkway is the address for the Citizenship and Immigration Services, and also the detained immigration courts.

Joseph resides in Waukegan, not a federal building.  The ICE officers who arrested him knew this; they had his driver's license.  And they knew this from his wife, who thought she was just dropping him off for a little administrative appointment, and was out doing a little shopping in the Loop.

Another problem is that the summary of the ICE arrest reports states that Joseph had not filed a petition for his naturalization, even though he claimed otherwise and was in line to follow up on that.

click to enlarge

Joseph told the agents he had been sworn in as a US citizen in 1984, implying he had petitioned for this at that time.  And the only reason he didn't file a petition on September 9, 2014 is that ICE arrested him.

Of course it is possible Joseph is confused or himself obfuscating.  But why not point this out, rather than obscure the true location of his arrest and the underlying events surrounding it?  And, after he's locked up, why prevent him from filing an N-600 form?

In immigration court last week, when Joseph over the televideo from McHenry County Jail expressed concerns about the false statements and his wife, present in the court, showed adjudicator Fujimoto the entire print-out from ICE's system records, the ICE trial attorneys responded in an accusatory tone, "Where'd you get that?!" implying that by procuring his own records he had violated a government secrecy act.

It is troubling that the ICE attorneys and the adjudicator paid zero attention to the clearly false information in their own records.  At the end of the day, the records Joseph has produced are consistent with his claims of US citizenship and the ICE records are evidence of obstruction of justice.  (18 USC 1519: "Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.")

Joseph Needs a Lawyer
Joseph wrote a very clear narrative of events that he submitted to adjudicator Fujimoto, along with the 2012 E-verify printout, but he, his wife, and also the student observer Hayley Hopkins, were shaken by Fujimoto's indifference and the government's double-standards. "They only respect a lawyer," Joseph told me.  Hayley reported that Andre and his wife said that the I-213 summary "showed evidence of misrepresentation," but that instead of taking it seriously, the government attorneys were "skeptical of how they got this, and asked, 'How were you able to obtain ICE documents?'"

 These events are just a piece of the larger problem with deportation proceedings today.  If either President Obama or Congress really care about the rule of law, then they should stop arguing about prosecutorial discretion and put ICE on ICE and stop deportations until everyone has an assigned attorney and there are regulations for detention centers, absent which people are agreeing to being deported to effectively escape conditions of torture.

I am not claiming that most people in deportation proceedings have secured the proper permissions to remain in the United States or have not violated laws consistent with the government's prerogative to deport them.  I am claiming that virtually all proceedings reveal the government to be breaking laws that are much more important to public safety than the ones those in their custody are accused of violating.

Coda
Finally, we should all be praying over Franz Kafka's grave, his body surely tossing like mad by now.  His name frequently appears in federal court decisions responsive to BIA and IJ orders,mostly because of their failures of logic and legal inventiveness -- my favorite is the BIA precedent based on an invented portion of the Mexican Constitution.  In the event, the specific problem Kafka highlights is the blurring of private and public behaviors in spaces that are putatively governmental. On the one hand, the citizen goes before the law expecting from the court fairness and knowledge of the law, and then is frustrated by officials who are much less orderly and civic minded than their supplicants, which Kafka dramatizes by the family and dining scenes inside the court building.  

All this is weirdly brought to life by the recent published and leaked reports by the DOJ OIG and DHS OIG, respectively.  The image of our immigration and deportation business being treated with all the graveman of the family chores is, alas, the horror Joseph now confronts.

Slate's Reihan Salam Engages States Without Nations' Feminist Analysis

Most public discussion of States Without Nations: Citizenship for Mortals centers on a practical discussion of the first of its four proposals: eliminating birthright citizenship and allowing free movement and citizenship based on residency, along the lines of requirements for state residency in the United States. The overarching historical and theoretical framework tends not to receive much attention.  So I was pleasantly surprised to see journalist Reihan Salam's recent article on Slate "The End of Pregnancy and the Inevitable Rise of the Artificial Womb" explore the book's analysis of pregnancy envy.

Stevens suggests that our society is screwed up in large part because men have created myths, rituals, and laws that entrench their power as a way to compensate for a profound sense of inadequacy instilled early in life.

Salam explores the technological changes that may topple the current reproductive practices and thus the compensatory policies responsive to these, at least for elites working at Apple who have their eggs stored, thus readying them for the near distant future's possibility of ectogenesis. 

Salam claims that paternity testing also changes the compensatory rationales of inheritance and other policies.  But my argument is about the effects of early childhood fantasies boys have about the significance of their inability to give birth.  Empirical claims about new assessments for genetic paternity or men's actual contributions to child-rearing are not relevant to understanding the causes of the structures instantiating through law intergenerational families and nations.  Still, fun to think with Salam about new reproductive technologies and practices.  

For more on the relation between reproductive technologies and the feminist revolution, check out Shulamith Firestone's classic The Dialectics of Sex: The Case for a Feminist Revolution (1970).  Firestone wrote this at age 23, while a student at the Chicago Art Institute.  This reminds me that Gayle Rubin developed the central analysis in her classic essay, also theory-heavy, "The Traffic in Women: Notes on the 'Political Economy' of Sex" (1975) when she was an undergraduate at the University of Michigan, Ann Arbor and active in the feminist movement there. So here's a shout-out to the Midwest and campus activism in the 1970s for these two brilliant, iconoclastic feminist thinkers.

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

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

and Unjust Enrichment 

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

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

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

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

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

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

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

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

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

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

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

1614 portrait by Gilbert Jackson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More on the Government Illegals Running the Immigration Courts

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

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

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

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

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

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

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

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

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

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

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

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

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

Misconduct Investigation Data

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

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

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

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

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

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

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

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

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

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

-Single IJ terminated over AILA Objections  (#126)

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

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

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

Thanks to Tom Fritzon for the art!

US Justice Dept. Civil FOIA Office Rejecting All Digital Requests, No Email Option Provided

This morning I tried to file a request under the Freedom of Information Act of the Department of Justice Civil Division.   The site provides no email address but instead requires use of an interactive online form.  However, the site each time rejected  my submission without explanation.

Most government agencies provide an e-mail address for FOIA requests.  But for the DOJ Civil Division, the only recourse is to submit a request by mail, thus burdening the public and creating an obstacle to transparent government.  I am noting this now to document how long the problem persists and share this information with the public and government officials.

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

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

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

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

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

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

For the original complaint and background, please go here.

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

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

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

Judge's order

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

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