Appellate Court Gives Go-Ahead to Sue Border Patrol for Deporting a U.S. Citizen

On February 20, 2009, the U.S. Court of Appeals for the Fifth Circuit in Texas reversed a district court decision (No. 07-40416). (
If Monica Castro, a U.S. citizen, can show that the Border Patrol Agents who deported her daughter, also a U.S. citizen, in violation of the Constitution and the law authorizing immigration enforcement duties, then Castro and her daughter should be compensated as mandated by the Federal Tort Claims Act. (For an article on the case background, see here; also, you can download the original complaint from 2006 as well as the appellant brief and appellant reply brief from 2007.)

In a case clouded by stereotypes and a typical government defense of haplessness, the Court majority cut to the heart of the legal question at stake: the Border Patrol, regardless of its sweeping powers over aliens, does not have jurisdiction over U.S. citizens. The majority writes: "here, the Agents concede they knew R.M.G. [the child] was a U.S. citizen" (p. 18), and hence they may be sued for acting outside the scope of their authority.

This decision cites a number of precedents on the relevance of the FTCA to the abuses of U.S. citizens by agencies in the Department of Homeland Security that apply to fact patterns in many other cases similar to this one, several of which I have described here (see esp. tags for David and NationArticleFacts). Indeed, the only unusual fact here is the custody dispute between the noncitizen father, who had R.M.G. in his custody when he was deported, though Monica Castro was also present and had alerted the Border Patrol to her daughter's U.S. citizenship and Castro's claim for custody.

In other words, in many other cases DHS agents have clear evidence of U.S. citizenship without distracting custody disputes, which should make suing the government even easier in those instances.

As I've mentioned before, this model of using the FTCA to curb government abuses is a third-best option. It does not punish the individual agents and it does not attack the roots of the border's absurdity and the resulting prejudices. The charges of false imprisonment and, essentially kidnapping, at the heart of Castro's suit deserve the attention of U.S. Attorney Generals. Once the agents realize the results of their abuses could be prison time, and not just an increased tax burden for the rest of us, then they might show more judgment and restraint.

And even this is the second-best option. The wisest policy for ending the border crimes of noncitizens and DHS agents alike would be to allow free movement.

The image above is from the Caller-Times.

That Can't be Right, Can It?: $1 BILLION for Bomb Sniffing

Homeland Security has managed to procure $1 billion in the stimulus package for devices that could detect bombs in checked luggage.

Considering that absent this technology airplanes are not dropping out of the skies due to bombs in checked luggage, and knowing that spending $1 billion is not a guarantee the technology and people using it will work in the future, isn't this a colossal waste of money?

Now that the Obama administration has, for the first time, identified economic fragility as posing the world's greatest security threat to the United States, it seems logical to complain that not only is the spending on this stupid, its wastefulness and especially the opportunity costs of not spending the $1 BILLION dollars on programs we know would be useful, e.g., education, public transportaion, health care, programs for supporting immigrants... the expenditure is also heightening the threat to homeland security.

(In Title VIII the Stimulus bill allocates $3.95 billion for "Training and Employment Services": how can anyone justify spending 1/4 of the amount on training the entire country on questionably useful bomb-sniffing technology?)

English Only: British MP Presses PM Gordon Brown on Israel Human Rights Violations

Tonight I ended up watching the 30 minutes of "Ask the Prime Minister" session recorded last Wednesday. Prime Minister Gordon Brown was being asked to renounce not only capitalism, by one Labour Party Member of Parliament, alert to the ideology's recent difficulties, but also, by another, to insist that Israel allow humanitarian aid into Gaza.

Before making this request, the MP, I don't recall his name, explained that by preventing lorries carrying medical supplies and food from reaching Palestinians in Gaza, Israel was violating international law. The speaker described in some detail the devastation Israel caused during its bombing, and insisted on the importance of Israel allowing entrance into Gaza of lorries driven by United Nations and other human rights workers. It reminded me of how odd it is that a member of the U.S. Congress would never publicly press President Obama on Israel.

The British Prime Minister replied by saying that he had written a letter to the Israeli Prime minister requesting that Israel immediately allow the lorries entry.

Super-imposed on the screen in white letters: Lorry - Truck

The need to instruct on simple vocabulary revealed in form the differences in substantive political intelligence between our Congress and the British Parliament I had been watching.

ICE Crimes and Coverup in Baltimore, MD

CASA de Maryland, an immigrant rights group, on January 28, 2009, released video footage taken by 7-11 cameras showing ICE agents literally rounding up patrons in and outside the store based solely on their appearance as Latino. The link to the video, taken in Baltimore in 2007, is here and you might want to start around 2:45, which is where the events in question are most visible and, at 3:10, you see the ICE agents marching three customers out of the store and sitting them on the curb alongside several others similarly detained.

The video makes two points very clear: 1) ICE initiated contact with the individuals; 2) there is absolutely no "probable cause" or grounds for "reasonable suspicion" other than the illegal motive of racial profiling.

Even more troubling than the initial violation of these people's civil rights is the subsequent cover-up of the ICE agents' illegal activities. According to the CASA attorney Justin Cox, an ICE internal report quoted ICE agents stating that they were approached by the individuals they detained. Cox explains that the agents told the ICE investigator that they "happened to stumble on these people who volunteered that they were in the country with no immigration status." Many of those detained of course were citizens or legally in the country.

The CASA attorney also noted that the investigators who conducted a review of the raid did not interview a single one of the individuals ICE detained. Hardly a sign of an unbiased investigation into civil rights violations.

In response to the release of the video, Washington-based ICE representative Kelly Nantel told an NPR reporter:

"Those who were targeted were the individuals who were congregating and who had approached the vehicle. Obviously, I know there were allegations of racial profiling, those allegations are two years old, more than two years old now. They were thoroughly investigated at the time. That investigation found those allegations to be unsubstantiated."

The video footage renders this statement demonstrably false, as you can see individuals being taken from the store, not near a truck, and also herded AFTER a white pickup truck leaves.

In an interview with a Baltimore Sun reporter, another ICE spokesman, Richard Rocha, says:

"In this case our officers used their training and experience to respond to a developing situation as it unfolded. They were approached by individuals asking if they needed workers. Those workers were questioned and ultimately it was determined they were in the country illegally."

Again, it is obvious that the only situation that developed occurred because of ICE agents acting illegally.

Best wishes to CASA de Maryland in its wrongful arrest lawsuit under the Federal Tort Claim Act. I hope they win every penny of the $500,000 damages they're claiming on behalf of their three clients.

Still, defending civil rights and punishing government coverups shouldn't be left to private individuals and non-profit groups. It's time for the Department of Justice to step up on behalf of not only wrongfully detained US citizens and residents but also the U.S. taxpayer. It's one thing to have the US government, not the agents themselves, pay out millions of dollars in lawsuits, as has happened. If a few ICE agents were imprisoned for their crimes, including lying to a federal officer, which is what appears to have occurred when the agents told ICE investigators about what transpired, perhaps then ICE would pay a bit more attention to the laws and the U.S. Constitution.

Problems with ICE Interrogration, Detention, and Removal Procedures: Links to Hearing and Follow up ICE Responses

On February 13, 2008 Zoe Lofgren (CA-D) chaired a very important hearing before the House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. The hearing brought forward several U.S. citizens and public interest attorneys, including Kara Hartzler, Rachel Rosenbloom, and James Brosnahan, who testified about ICE violations of the rights of US citizens, as well as resident aliens.

In addition, Gary Mead testified rather pathetically on behalf of the Department of Homeland Securities.

The link to these hearings, which includes streaming video, changed over the last year and became hard to find, so for my own records if not those of others, I thought I'd repost the link that presently works here.

During the hearing, the members asked several questions that Mead said he would answer in writing. In August, 2008 the Subcommittee received those responses, which are included in the final Subcommittee Report, Serial No. 110–80, beginning on p. 130. These responses are quite enlightening for their statements that in the interior ICE bears the burden of proving someone is not a US citizen before detaining that individual; ICE does not qualify this by citing foreign birth.

Also noteworthy is the preference of seeming stupid instead of culpable, in responding to specific allegations of abuses by stating that ICE would be responsive to specific allegations of abuses and then not responding.

During the hearing, a US citizen, Mike Graves, who worked at the Swift plant, testified: "We were there for about 8 hours with no means of getting outside contact, no food or water till the whole process was over and done with." (A longer excerpt appears below.)

During the hearing Mead would not state what constituted a "brief" period of detention and ICE was asked to comment on this in writing.

"Subcommittee Question: Does detaining one of our witnesses, Mr. Mike Graves, and hundreds of his co-workers in the Swift plant in Marshalltown, Iowa for eight hours constitute a 'brief' period?

Response: ICE is unaware of any instances where United States citizens or lawful permanent residents were detained for eight hours during the worksite enforcement operation conducted at te Swift and Company plant in Marshalltown, Iowa. ICE takes such allegations seriously and if the committee has information regarding any such instances, we ask that the information be provided to facilitate an investigation."

Of course ICE agent Gary Mead sat within several feet of Mike Graves, who gave specific testimony about this precise set of events, and this, and the other witness testimonies, also were available in writing during the period in which ICE was responding to the Subcommittee questions.

Here's what Mead heard Graves tell the Subcommittee on February 13, 2008:

[The ICE agents] asked me questions about my identification and asked me about my parents. And I said they lived in Mississippi. He asked me do I know my route to Mississippi. And I said, well yeah, but I don’t know the exact route in detail.

So he kind of looked at me and told me to sit down. So he took my identification to another agent that was down from the aisle where I was sitting and told me to sit down. And he looked at my identification and the other agent did, too. They looked at it, said something to each other, and started laughing.

So they took my identification with them, and I was still sitting there waiting for them to come back. When they did come back, he told me to go to the cafeteria where everybody was still sitting there waiting. The cafeteria holds about 50 people, but they crammed about 150 people in the cafeteria. So they blocked off all the food supply, all the water in the cafeteria. They unhandcuffed me at the entrance
of the cafeteria and told me to go in there and wait——We was in there for about, at least, 3 or 4 hours in the cafeteria with no food, no water, no means of telephone to call our lawyers or—they did not give us a chance to get our union rep there to talk to us about the situation either.

So we was there with no food, no water, nothing. When they came, they got us by tens of people and then they took us to go to another area to process. After that, we were processed. We went to another area outside the plant and walked about
400 yards to another building where 400 people were in there where they still cut off all our food supplies, no water, no phones, no nothing.

We were there for about 8 hours with no means of getting outside contact, no food or water till the whole process was over and done with.

This report includes extensive media and non profit organization documentation of ICE law-breaking.

Facts on the Ground: the Occupation in America

The Los Angeles Times ran a great story today about the 35,000 truckloads of dirt used to fill in a gulch in California, to change the landscape enough to make the earth a barrier instead of a corridor. And then the US government is adding layers and layers of fence, with the result that people will lose their homes, jobs, families, and communities.

It is true that unlike the Palestinians, the residents designated by their birth certificates or other legal documents as Mexicans are not being killed at war. That happened just over 150 years ago, and the losers never mounted another serious armed struggle against the victors. If they had, the US would turn their weapons on them without hesitation (as happened against the Puerto Rican separatists), and the civilians in the borderlands would be praying they were being attacked by the Israelis.

This comes to mind because I am receiving a welcome round of petitions through various listserves, from colleagues venting righteous anger against Israel's bombing of Gaza, including its educational institutions and therefore students.

I endorse their cause, but wonder at the irony. The state of California is using its police and prisons to illegally deport US citizens of Mexican descent. As UC faculty we are not protesting our own employer removing from "the homeland" residents born in Mexico and even the US. The state of California only exists in "our" borders because of occupation, terrorism, and state armies.

This is a point that Israeli nationalists make when challenged for their exclusions of non-Jews: what Israel did is no different from the US expanding into Mexico. (This also was a point repeatedly stressed by someone who was highly placed in Franjo Tudjman's government in Croatia in 1996 , and he included a fine-grained analysis of the US displacement of Native Americans.) The observation is only ever offered for the purpose of naming US hypocrisy toward its own occupation, assuming this is a fait accompli, but perhaps it might be turned to another purpose.

What about ending US hypocrisy on civil rights, human rights, and the rule of law by doing the right thing and allowing free movement, at least starting with those on our borders? (Yeah, if Mexicans could move here freely then the Canadians might make a fuss. There goes the neighborhood, eh?)

DHS Illegally Detains and Deports US Citizen Born in Fresno, Califonia

Daily Journal reporter Sandra Hernandez details another familiar-sounding case of ICE agents and immigration judges ignoring the rule of law. Jose Ledesma showed immigration agents a copy of his Fresno birth certificate, also on file with Madera County. Numerous agents and immigration judges ignored their burden of proof and asserted he was lying. On various occasions Ledesma was detained, deported, and also charged with falsely impersonating a US citizen.

Ledesma told Hernandez, "I know my rights, but in court you don't really understand all the legal stuff or they just don't believe you."

"I think the only reason I got out is immigration saw the newspaper stuff and didn't want to keep me in there after it was public," he said.

You can find out the rest of a very familiar story in Sandra Hernandez's article here.

Thanks to Dan Kowalksi for posting this on Bender's Immigration Bulletin.

An Interview with David, Wrongly Classified as an Illegal Alien Based On Racial Profiling

This is a story about how one man, David Lopez (names are fictional unless otherwise indicated), a US citizen, came to endure the racism, lawlessness, and stupidity of US immigration agents, leading to his incarceration by the Immigration and Customs Enforcement Agency (ICE) and a removal order to Mexico, even though ICE has no jurisdiction over US citizens.

As opposed to previous accounts on this blog (you can find by clicking on the David tag), this one is based largely on an interview I had with David on Thursday, December 18, 2008, the day after receiving a message from David's attorney, Neil Rambana, that he had just received David's Certificate of US Citizenship.

This post focuses on one case of a US citizen illegally detained by ICE to show how the mandatory criminal deportation policy and its implementation are fraught with civil rights and other Constitutional violations. Elsewhere on this blog and in The Nation I have shown that one consequence of this law, the deportation and detention of US citizens, is widespread.

The post here also indicates the points at which David's narrative invites legal remedies that might include a Bivens complaint, a lawsuit under the Federal Tort Claims Act, and criminal prosecution for kidnapping and false imprisonment.

David's Story: US Issues Illegal Removal Orders for US Citizens of Hispanic Descent

In 1998 David ignored the advice of his sister Esther and took the rap for a nonviolent crime to protect another sister, Anna. Anna, in her mid-40s, was 20 years older than David and in poor health. David thought he'd be sentenced to 3 years in prison, max. But instead he found himself with a ten year sentence, hoping for an early parole. Fortunately, he'd be in the Coffee Prison, a low security private facility for inmates with nonviolent records.

Or so David thought. In the middle of the night in 1999 the guards woke him up and told him he was being transferred. David said, "I thought I was going to another minimum security prison, but they sent me to close security. I was afraid because it was more dangerous. In close security you have the murderers, rapists, people with life sentences. There are a lot of people with nothing to lose." (David is living in El Paso, Texas with his elderly mother. We spoke by phone.)

The guards who transferred him to Hancock Prison didn't tell him why he was going there. He learned from a prison counselor the next day that it was because of an immigration hold that Carlos Cabrillo had put on David while he was in the Jackson Diagnostic intake center in 1998.

I asked David how he was picked out to have an interview with Cabrillo and he described how the immigration agents in the prison used illegal racial profiling: "They take all the Hispanics. That's the way they do it, if your name is Hispanic. It doesn't matter if you're Puerto Rican, whatever." This is exactly the same screening procedure that Robert said occurred in the L.A. County Jail in 2001. (Robert is a US citizen who was deported twice to Mexico and served 3 years for falsely impersonating a US citizen. You can read about him in the NationFacts tagged posts.)

In 1998 David told Cabrillo that he was a US citizen and had been documented as such by the US Consulate in Juarez in 1989 when he was 16. David's father was a US citizen and fulfilled the other requirements necessary to convey citizenship to his children born in Mexico. "They said that I was a new citizen," David told me, and gave him a consular identity card indicating his US citizenship. "They didn't say nothing about registering." That's because the US does not keep such a list and there would be no reason to expect that David or anyone else in prison would have with them evidence of US citizenship.

Unlike the other Hispanic-named inmates at the Jackson Diagnostic Center that day, David was not fingerprinted or photographed. He thought Cabrillo believed him. "He led me along," David said.

The next time he saw Cabrillo, David was in the Hancock Prison, the close security facility, shortly after he was transferred. Cabrillo was telling David that he needed to prove his US citizenship, otherwise the US government would continue to classify him as an alien. "I told him, 'I'm in prison. Whatever I told you is all I can give you. I gave you my social security number. My ex-wife is a permanent resident because of me. All you have to do is go to the immigration building!'" David was appalled by Cabrillo's refusal to consult his own immigration bureaucracy for the relevant paperwork in such an important matter that should have been easy to resolve. "I really don't think he did a thing to find out."

Cabrillo's only duty as an immigration agent in the Georgia prison system was to ascertain the inmates' citizenship. This is not a discretionary activity for a prison-based immigration agent, but the only purpose of his employment. By failing to consult the relevant authorities whom David had clearly specified, Cabrillo did not carry out the congressionally designated duties for the program that had funded him.

This is the first of several violations of David's civil rights that seem to trigger government liability under the Federal Tort Claims Act (FTCA) 28 U.S.C. sect. 1346b, as well as a law that provides damages if government employees violate Constitutional rights (42 U.S.C. sect. 1983).

Under FTCA, the common law "sovereign immunity" defense is not available to the federal government for tort liability in the case of:

injury or loss or property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. sect. 1346(b).

There are several exceptions to the FTCA but none of these obtain in this case. The most frequently used exception is for duties in which the employee is exercising a "discretionary function" for actions that may but need not be construed as government obligations under law. But this could not be a defense in this matter.

Relatedly, US law requiring the burden of proof for foreign-born citizens in deportation proceedings does not change Congress's intent to support a prison-based program for initiating these proceedings against criminal aliens, not US citizens.

In other words, the only reason that David encountered an immigration agent was because Congress had decided to deport criminal aliens from US prisons. The absence of any process for David to challenge a misclassification from prison -- because there was no process to do so until after his sentence had been served and because he had no legal representation -- only increases the expectation that the immigration agents exercise due diligence in their assessments. At the very least this would seem to require consulting records in their own databases.

Furthermore, the malfeasance leading to David's illegal detention is not protected by the intentional tort exemption. The exemption does not cover "investigative or law enforcement officers," defined as those who are empowered to "make arrests under federal law." This encompasses one of the duties of immigration agents and the one that led to the detainer. And again, the initial violation of the immigration agent was the malfeasance in duties leading to the initial misclassification, which is not an exempted intentional damage.

In addition, Cabrillo's decision to screen based on Hispanic names is a violation of David's civil rights, subjecting him to deportation procedures only because of racial profiling. This seems to trigger what's known as a Bivens action, in which federal employees may be sued for violating someone's constitutional or other legal rights. In this case, the misclassification of David as an alien violated his due process and equal protection rights. Moreover, these violations occurred in the context of an agreement with Georgia authorizing immigration agents to work under color of state as well as federal law, in this case, the ability to screen inside state prisons under the State Criminal Alien Assistance Program.

This state agreement authorizing the federal agent work in the Georgia prison would seem to directly trigger the provisions of 42 U.S.C. 21 sect. 1983.

The usual Bivens exceptions do not apply. There is no other available remedy for the violations of David's Constitutional rights and Congress specifically excluded a judicial remedy (by not allowing for a judicial appeal of a deportation order prior to time served). Moreover, it is clearly in the interest of good public policy for immigration agents to have an incentive to not deport or hold in detention US citizens.

In short, Cabrillo's initial malfeasance in screening David seems to fall squarely under the umbrella FTCA violations -- for negligence in performing a basic bureaucratic duty that would trigger a tort if committed by a bureaucrat in a private firm, say an insurance agent who failed to search for records in the company database of previous patient care authorization, resulting in adverse consequences for the patient.

But this is just the beginning.

After his interview with Cabrillo at Hancock Prison, David was sent to an even worse prison, Telfair. David said that at the time it was a "punishment camp" and the conditions were especially harsh. David didn't know why he was sent there. Most likely it was because of the 1994 Crime Bill, touted as a major bipartisan achievement for Rahm Emmanuel and the Clinton White House. That bill first funded the ongoing State Criminal Alien Assistance Program. As a condition for federal reimbursements for alien inmates, states had to promise to house all alien inmates in maximum security prisons.

David's name still appears in the Georgia State SCAAP registery submitted for federal reimbursements. David is listed in the November, 2008 registry as someone who has claimed Mexican citizenship, months after his deportation proceedings were dropped by the DHS.

In the event, after David was misclassified and moved to Telfair, he enlisted his sister Esther and his mother to gather the federal government's documents that it had issued to David and his ex-wife, and send them to David so that he could send them back to the same agency. In 2002 he sent the Atlanta immigration office the same documents that in late 2008 were used for the purpose of his recently issued certificate of citizenship.

Back in 2002, David waited. Nothing. He waited some more. Still nothing. He waited a few years, and then finally in December, 2005, he received a letter from the Georgia Department of Corrections informing him that as a result of a lawsuit it had lost, it was no longer able to enforce a policy of making inmates serve 90% of their sentences. He was going to be released. That was the good news.

The bad news: David was going to be deported to Mexico. In February 2006 he was moved to the top floor of an Alabama jail Etowah County had leased to ICE. He met an ICE agent who asked David, "Do you want to be deported or see the judge?" David said, "He told me 'You're not a U.S. citizen.' Then he opened the file, what I sent in 2002, and said, 'Wow, you're really an American citizen. What are you doing here?' He really got surprised." David told the agent that the reason this happened was "'You never looked at the papers. You never pay attention to what I sent you.'" The agent told David that he'd have to go see the judge.

So this triggers the second series of unlawful abuses of David's rights. ICE has no jurisdiction over US citizens. The minute the agent David met in Alabama recognized David as a US citizen, his removal order should have been thrown away and David should have been given a sincere apology. The agent's failure to perform his job is actionable under the FTCA and the violation of David's due process rights justifies a Bivens complaint.

If this weren't a system designed for poor people of color who lack legal representation, then the story might end soon. After all, David was supposed to see an immigration judge in a couple of weeks. But, alas for David, it took three more years before he would be released. "At first I didn't have a problem to wait [two weeks]. I knew I was going to be released." But the day for David's hearing, "They never went to pick me up. They told me the guys who were going to pick me up didn't know where I was. They thought I was in another place." David didn't believe them. How could they not know where he was? "I told them, 'if you think you can make believe that, you're wrong.'"

At that point he was told he would have to wait for another court date in two months. David said, "I waited too long for that moment. Two more months ain't that long." But when it came time for his second scheduled hearing in May David was again left to stew in his cell. "I went to talk to [the ICE agents] again and they told me the same thing. That's when I started getting desperate." How desperate? David said of what transpired after he missed the second hearing, "I felt like I was kidnapped."

This is not surprising. David was kidnapped. Under Georgia law, moving someone against his will constitutes kidnapping. Likewise, arresting, confining, or detaining someone without legal authority constitutes false imprisonment. The immigration service was knowingly moving David across state lines and holding him without legal authority. Kidnapping is a violent felony in Georgia and punishable by 10 to 20 years.

When a US citizen is intentionally denied his personal liberty, those responsible should be prosecuted not only for civil damages, but on behalf of the people. The intuition that David's treatment was inhumane and deserves punishment is backed up by a statute designed for this purpose. It only needs a state prosecutor with a sense of justice to be implemented. Civil penalties shouldered by taxpayers are not a sufficient incentive to stop such behaviors. Only after immigration agents understand that the state bureaucracy is not a protection for their illicit activities but the means for their prosecution can damages such as those endured by David be rectified and deterred.

After David realized he was kidnapped, he contacted the pro bono attorney assigned him. "Mr. Rambana told me, "Just send me the papers and I'll go and take you out of there.'" David sent his papers to Mr. Rambana, twice. And twice Mr. Rambana did not receive them, nor were they returned to David. David suspected the guards were intercepting his correspondence.

In August, 2006, the THIRD TIME that the guards failed to bring David to his immigration hearing, he was nonetheless informed that Judge Cassidy had terminated his deportation order. However, the ICE agent in the jail tried to convince David that "the judge terminated my case because they didn't take me to court, not because he was accepting an American citizen." David knew better and repeated that he felt kidnapped and "depressed, desperate." He explained, "I found people who were [in the ICE-leased floor of the jail] for five years. They were fighting their cases. I thought I was going to be with them and spending a long time there."

David wrote to the judge and asked for the decision, which he sent to Mr. Rambana. Within a few days, and this appears to be in September or October, 2006, "I was released. But they didn't release me."

David describes being on the Alabama Etowah County Jail ground floor in his street clothes when he was informed that the Georgia Department of Corrections had just placed a hold on him. He was sent back upstairs, this time to the floor for state prisoners, not alien detainees. He stayed there for three days.

The next unlawful action occurred when ICE agents, who at that point lacked even the thinnest shred of a legal fiction for their custody of him, put him in an ICE van and drove him to Atlanta's downtown jail. David said ICE drove him there because the jail wouldn't pick him up because "they didn't have a charge." And the Atlanta jail wouldn't take David even when ICE dropped him off. "At 6 am they left me in the intake waiting room. At 6 pm ICE picked me up and put me in another jail. Fulton. I don't know why ICE did this. They were so strange. Everything was so strange."

A new piece of the story emerged in the van ride to Fulton, when the ICE agent told David that Cabrillo had personally told that ICE agent that the reason David had been classified as an alien was that David had himself told Cabrillo that he was "illegal." David replied, "If I told him that, why didn't he take my picture or fingerprints?" The agent in the van said he didn't know. Perhaps Cabrillo was lying to his colleagues to cover up his error.

At Fulton County jail the situation in Atlanta recurred: "They didn't want to let me in and they told them the same thing, 'You're going to get us in trouble. What's the charge? How come he's got a hold from the Department of Corrections but he's already released?'" The ICE agents said they didn't know and told them he was going to pick David up the next morning. They next morning, however, they booked David "like I broke parole. That's what they put in the computer, and I saw it." But of course David had never even been on parole. However, while he was being held by the Georgia Correctional Authority, ICE had decided to appeal Judge Cassidy's order terminating David's removal order. [The lack of due process, including the DHS failure to notify David's attorney of this decision, is detailed in previous postings here.]

Georgia was starting to put together an argument that it was holding David so it could arrange for his parole, but this was a fabrication, possibly designed as a cover to hold David for ICE as it was appealing the termination order. Since Georgia had already paroled him under Georgia law and released him from detention under federal immigration law, the claim was a ruse, one that a correctional officer himself noted to David after David was moved from Fulton to the Baldwin Diagnostic Prison in late 2006: "I saw a parole officer and he didn't know what was going on. He said, 'Listen David, you're not supposed to be here if you didn't break the law. I don't know what to tell you.' He was so confused about it." Another violation of David's rights. If a law enforcement officer notices that the law is being broken, then there should be no "confusion," but affirmative action to release a man who was "not supposed to be here."

On December 12, 2006 David was transferred to Calhoun Prison, where he was informed of a parole date of May, 2007. [I have previously posted summaries of phone conversations with Georgia parole administrators that undermine the claim David was held in order to satisfy parole conditions.]

To make a long story further long, David was not paroled in May, 2007, but during this time was in deportation proceedings, unbeknownst to his attorney. Eventually, after appealing two more orders terminating David's removal to Mexico, the DHS attorney without comment withdrew their appeal.

On November 8, 2008 after serving every minute of a ten year sentence for a nonviolent and victimless crime, David was finally released. His two daughters, 17 and 14, have grown up without him. Were it not for the ICE hold, David at least would have had three more years of their childhood to enjoy, and less emotional distance to travel now. Even though they wrote him frequently, right now it's tough. "They look at me like I'm a stranger. I think they've got some anger. I can feel it, though I'm pretty sure with time it will be okay."

Toward the end of our conversation, David started to discuss the danger he feels even now because he knows ICE agents do not understand the laws they are supposed to be administering. He worries he could be stopped on the street at any point by the police or ICE and be forced to go through this all again. Describing one encounter with an agent who didn't understand how David qualified as a citizen "at birth," David told me that after he explained the section defining "citizens at birth", he told the ICE agent in the Alabama jail, "You're supposed to study the law first [before detaining people]." The agent replied, "I am not the one who is going to do the time."

This exchange summarizes a US racist legal culture that is not original with the Bush administration. Its resonance in immigration enforcement has deep roots. That David is going to do time is the reason that the agent SHOULD know the law, because, as the parole officer in Georgia said, only people who break the law should be in prison. When US government officials defend their actions on the grounds that only other people will be harmed, it is long past time for immigration agents and prison officers to have a crash course on the rule of law. If the only incentive they have to learn the law is government agents doing prison time, then so be it.

DHS Expands Biometric Requirements: US Citizens May Be Next

As of January 18, 2009, the Department of Homeland Security will be vastly increasing the number of people required to provide digital fingerprints and photographs on entry to the United States.

Although the DHS headline announces "Department of Homeland Security Expands Collection of Biometrics for Visitors," the policy actually is going to be applied to Longterm Permanent Residents!

Millions of US residents will now be treated like criminals simply because they chose to travel.

These include:

• Lawful permanent residents of the United States (LPRs);
• Persons entering the United States who seek admission on immigrant visas;
• Persons entering the United States who seek admission as refugees and asylees;
• Canadian citizens who are currently required to obtain a Form I-94, Arrival / Departure Document upon entry or require a waiver of inadmissibility to enter the United States (This excludes most Canadian citizens entering the United States for purposes of shopping, visiting friends and family, vacation or short business trips);
• Persons paroled into the United States; and
• Persons applying for acdmission under the Guam Visa Waiver Program.

The DHS states: "Collection and verification of biometric identifiers upon entry protects travelers by making it virtually impossible for anyone else to attempt to use their biometrically linked travel documents (such as a permanent resident card), such as if their documents were stolen or duplicated."

This creeping and creepy logic suggests that US citizens are next. Why leave US citizen travelers out of the "protections" of biometric screening so generously extended to longterm permanent residents?

Israel Turns Back Richard Falk, UN Rapporteur and Political Scientist

UN Special Rapporteur and Princeton Political Science Professor (emeritus) Richard Falk was supposed to enter Israel's occupied territories this weekend, at the invitation of Palestinian President Mahmood Abbas. Instead he was detained incommunicado and then shipped to Newark.

Here's a summary of the latest unfortunate episode of Israel rejecting norms of the international community and the United States sitting by and watching, sent by a colleague Lisa Hajjar, Law and Society Program, UC Santa Barbara.

Richard Falk was elected/appointed to be the UN Special Rapporteur for
Palestine in June 2008. He released his first report about the human rights situation in the Palestinian Occupied Territories (OPT) in October. Since he was appointed, the Israeli government has stated its opposition to him, citing his criticisms of Israeli human rights violations in the West Bank and Gaza. The US government also opposed his appointment for the same reasons, and both governments had lobbied--unsuccessfully--to block his appointment.

He received an invitation from Palestinian President Mahmood Abbas to study the situation in the West Bank, and the Geneva office of the UN High Commission for Human Rights authorized his mission. He left the US on Friday, via Geneva, where he was joined by an assistant and a UN security detail.

When they arrived in Israel, the assistant and the security official were permitted to enter but Richard was detained at the airport, questioned and searched. He was informed that he would be denied entry, and was held for hours before being temporarily transported to some place beyond the airport (a VIP detention facility?).

The US Embassy was alerted to this situation by Richard's wife, from California, after Richard made a quick call from the airport before going into an incommunicado situation. It took more than 12 hours for people to learn what Israel's plans were--sending him to the US, via Newark, on a flight that departs at 11:15 a.m. Israel time.

This is a situation that begs political and diplomatic intervention. The incoming Obama administration should, at minimum, issue a strong and unequivocal endorsement of Falk's status as the UN Special Rapporteur for Palestine, and should exert diplomatic pressure on Israel to grant him entry when he next seeks to travel to the country to pursue his UN mission.

Richard is a friend and colleague with whom Balakrishnan Rajagopal and I co-edited a special issue of Third World Quarterly that was published this year as a book, International Law and the Third World. In describing the challenges to his appointment by Israel and the United States Richard has always sounded more bemused than than surprised. You can read his own statements about his current work in a BBC report from December 10, 2008 here.

Those who know Richard understand that his scholarly turn of mind and genteel manner can be a provocation only to those who care little for truth or the rule of law. Richard is the author of more than 30 books on international law; it is erudition and expertise that lead him to his political positions. To reject his appointment is to refuse a place for truth and justice in the Middle East peace process.

Janet Napolitano and Obama's Immigration Policy

The first concrete indication of President-elect Barack Obama's thinking on immigration policy came with today's formal announcement that he will nominate Arizona Governor Janet Napolitano, a former federal prosecutor, for Secretary for Homeland Security. Consistent with the rest, the choices suggest not much change and not much hope. (Bush's Secretary of Defense? Hillary Invade-Iraq-Bomb-Iran Clinton as Secretary of State??? These are the two best qualified people in the entire United States for these positions?)

An excellent review of Napolitano's immigration record by Daniel González and Sean Holstege appeared a few days ago in the Arizona Republic. Napolitano seems happy to militarize the border; she has called for the national guard and more spending on border infrastructures, on the one hand.

But Napolitano also held back, González and Holstege write, “$1.6 million in state funding from Maricopa County Sheriff Joe Arpaio to blunt his efforts to arrest illegal immigrants through crime sweeps that critics said were terrorizing immigrant communities and violating civil rights.” In other words, Napolitano is no brown shirt. She, along with candidate Obama, also opposed state legislation that would deny drivers' licenses to residents without legal documentation of residency.

The current game plan for the Obama administration's immigration policy, as indicated on the webpages for the campaign and the 21 page report by the Center for American Policy, the Democrats' think tank while waiting for regime change that Obama has relied on for many of his advisors and positions, seems fairly close to the two immigration bills twice rejected in 2007.

The report hightlights neo-liberal goals of employment and free trade, not human rights or civil rights, and overall echoes S. 1348 and S. 1639. (For detailed analysis of the respective bills' contents and the voting on these, click on tags below.)

Obama's popularity may allow him to overcome the populist, nativist appeals of CNN anchor Lou Dobbs and other rightwing talk radio jocks to push through an immigration bill. If this happens, it could well harm immigrants, and citizens without the lawyers to prove their status, as did the Clinton Adminstration's 1996 reforms.

Any future bill will include this mix of enforcement with civil rights protections, and toward that end, here are three no-brainers:

1) End mandatory criminal deportation. This policy results in longtime residents with minor criminal records being removed to countries they may not have even visited since they were infants.

2) End “early release on condition of deportation” policies in state prisons. This has been implemented in such a manner as to falsely classify as aliens people who are US citizens and it has resulted in the extended and heightened sentencing above what inmates would receive without the alien designation.

3) Require the Department of Homeland Security and the Executive Office of Immigration Review to maintain and periodically release statistics on the legal claims for residence made by those apprehended. In particular, every claim of US citizenship should be noted. At present there are no government records with this information.

More on each forthcoming.

Catching Up

I've been away for awhile. My book manuscript States without Nations: Citizenship for Mortals is now with the copy editors at Columbia University Press. I've been catching up with some other loose ends but am now happy to be back with much more to report, some good news and some awful.

The first good news: The Ninth Circuit Court in California ruled on November 10, 2008 that ICE may not detain people who have non-frivolous claims to US citizenship. The decision Flores v. Mukasey (November 10, 2008)reverses earlier holdings denying habeas review of Herbert Flores-Torres's detention. The Court wrote:

"The government's authority to detain Torres appears to depend on the question of whether he was legitimated by his father under El Salvadoran law. The district court is the appropriate forum to resolve such a claim. We hold that Torres does not have to wait until his removal proceedings are completed and a final removal order is issued before he can secure habeas review of his citizenship claim andof his contention that he may not be detained under the INA."

In other words, the law says that ICE does not have jurisdiction over US citizens and ICE has to stop holding people who have non-frivolous claims to US citizenship.
Before this decision, people who were born outside of the US had to endure detention while their appeals were winding their way through the immigration review process.

As I've reported in The Nation, this was a ludicrous approach for the simple reason that US citizens are not the right targets of an immigration review: they're CITIZENS. It's great to see the 9th Circuit Court also take this position, and will be even better if the DHS attorneys and immigration judges adhere to it.

Congratulations to Holly Cooper, Supervising Attorney at UC Davis Immigration Law Clinic, for her work on this.

Department of Homeland Security Withdraws Appeal to Deport US Citizen

Late Monday, August 25 attorney Neil Rambana received a notice from the Immigrations and Customs Enforcement (ICE) attorney in Atlanta who had been trying to deport his client, a US citizen, stating that she was dropping her appeal of the judge's second order terminating deportation proceedings.

Since 1999 ICE and its predecessor agency the Immigration and Naturalization Services (INS) have been trying to deport David (for more on the background, click on the the David tag below). This has meant that David has spent nine years misclassified as an alien in the Georgia prison system, enduring maximum security incarceration and the loss of liberty from being denied the parole process due citizens.

If not for the ICE detainer, David would have been eligible for parole in 2005. Now he is still in prison and a Georgia Corrections Officer told me yesterday that because David's entire sentence will be served within a few months, “the parole board will not ramp up machinery for parole with so little time,” a response that does not fit Rambana's plans to seek David's immediate release.

Rambana described his response to the DHS withdrawal of its appeal this way:

The way this reads, it identifies that he has met his burden of proof and is a US citizen, and it memorializes for us that he's been put through the ringer unnecessarily and that all those things he suffered as a result of the detainer while he was in in prison is because they pushed the envelope unnecessarily. When they recommend withdrawing their appeal, they are saying that the judge [who twice terminated deportation proceedings] is right. That is malfeasance or nonfeasance.

Rambana continued, describing what happened in 2006 after Rambana had obtained an order from an immigration judge terminating the deportation proceedings, which ICE appealed without notifying Rambana:

I'm angry and I know his family must be angry too. He's been put in a situation where his security level increased; he was in isolation; and he was treated as a second class person. This is very upsetting.

The most upsetting part is that they did this behind our backs when we were attorneys of record. We could have addressed this issue several years ago. It was as though this person's life and wellbeing wasn't worth anything and they don't care. That is unacceptable and someone has to put them on notice that you cannot look at people and because of questionable immigration status treat them as a lesser person. You're not seeing a human being as a human being. You're treating them as pariahs or lepers because of an immigration matter. This is a US citizen, but because you didn't give them the benefit of due diligence they must suffer. How can they not do this? Who has all the resources? They [the DHS] do.

The attorney who withdrew the appeal is on vacation but Rambana hopes to learn the reason for the reversal next week. David is very fortunate to have an attorney who has been able to fight off the DHS in its maniacal, relentless efforts to remove him from the country despite his US citizenship, but many, many others are not so fortunate. For more on these cases, see the NationArticleFacts tag below.

ICE Acts Like Gestapo: Black Shirts Try to Punish US Politicians for Calling ICE Gestapo

CQ TODAY ONLINE NEWS – IMMIGRATION
Aug. 6, 2008 – 11:28 p.m.

ICE Chief Calls for Congress to Discipline Lawmaker for 'Gestapo' Remark

By John Bicknell, CQ Staff

The head of U.S. Immigration and Customs Enforcement will ask Congress to consider taking disciplinary action against one of its members for a statement he made equating ICE agents with the Gestapo, a senior agency official said Wednesday. Luis V. Gutierrez , vice chairman of the House Judiciary subcommittee that handles immigration, has called for a moratorium on ICE enforcement actions until Congress passes a comprehensive overhaul, something it has failed to do in each of the past two years.

In a column written for Politico, Gutierrez, D-Ill., commenting on recent ICE arrests of illegal immigrants in Iowa, said: 'You know who is in charge now? The Gestapo agents at Homeland Security. They are in charge.'

A senior ICE official, speaking on condition of anonymity, said Julie L. Myers, the assistant secretary of Homeland Security for Immigration and Customs Enforcement, was 'absolutely appalled and deeply angered' by the statement. The official said Myers would send a letter to senior members of Congress asking that disciplinary action be taken against Gutierrez' for his remarks.

Another official, Jamie Zuieback, director of congressional affairs for ICE, went on the record.

'It's not OK,' Zuieback said. 'Aside from being demeaning to the law enforcement officer
s that uphold the very laws passed by Mr. Gutierrez's Congress, it's potentially dangerous. No member of Congress should be encouraging the public to defy or demean federal law enforcement officers. Words matter.'

A call seeking comment from Gutierrez was not returned. Similar comments from the immigration activist community are not all that uncommon, and at least one other Democratic House member has made a similar remark. At a February hearing, California Democrat Sam Farr , assessing ICE's tactics, said, 'What happens is the public image of you becomes one of not this compassionate law enforcement agency but essentially a Gestapo-type agency that is knocking on doors.'

At that hearing, Myers responded by saying 'Congressman Farr, we are not the Gestapo, and I will not listen to you call . . . us Gestapo.'

A version of this story originally appeared on CQ Homeland Security.

--------------
Thanks to Rachel Rosenbloom, Supervising Attorney at the Post-Deportation Human Rights Project for bringing this story to my attention.

Image from blog noting Gestapo tactics of ICE raids.

The Epistemology of Race and Citizenship

The State Department absent proof in individual cases, has been using the possibility of fraud in a particular region to deny citizenship documents to Mexican-Americans born in this country.

According to an article by Miriam Jordan in today's Wall Street Journal, Juan Aranda's

birth certificate says he was delivered unto Weslaco 38 years ago, and church records say he was baptized here soon after. School files list him as a student in the local district from kindergarten through high school, and voter rolls show he votes for president here. But to the U.S. State Department, all that black and white looks a lot like gray. It recently refused to issue Mr. Aranda a passport; the government isn't sure he's an American.

While the possibility of fraud may require vigilance in certain areas of the country among US Citizenship and Immigration Service agents, that is different from categorically questioning the birth certificates of all comers born in a certain region, especially when they present other documentation.

Any epistemologist knows there is no such thing as metaphysical certainty of anything. Either the US government must prove in individual cases that the documents it is receiving are fraudulent or they must grant the appropriate citizenship documents. Anything else is a violation of due process as well as the equal protection clause.
(Thanks to my colleague at UCLA Joshua Dienstag for sending this my way.)

California Prisons and Jails Deny Due Process to Citizens and Legal Residents

As discussed in yesterday's post (August 7), the 1994 Crime Bill and the 1996 Illegal Immigration Reform and Immigrant Responsibility Act incentivized states to reclassify their inmate populations as aliens. The 1994 program designed for early parole on condition of deportation for nonviolent aliens turned into program of the federal government paying states to hold aliens for their normal sentences, or even longer. And this program provides no protections for citizens and legal residents who are misclassified. They too were put in maximum security prisons; held in detention centers; and in some cases, deported.

Here is some more information on how this was established in California.

The Texas legislative analyst's 1994 report Identify All Incarcerated Illegal Aliens and Deport Eligible Nonviolent Criminal Aliens was written to inform the Texas legislature on how other states had been handling their alien inmate population, and to asses the potential fiscal impact of signing up for the alien identification and deportation program with the federal government.

Here's what it says about California:

California's Department of Corrections reports that its process of identification goes far beyond self-reporting. An official in its Classification and Institution Division stated that caseworkers look at court records, "rap sheets," probation officer reports and other forms of identification, including Social Security cards and birth certificates. If there is any doubt about citizenship, the inmate is referred to INS for further review. Basically, California's policy is
that, unless inmates can prove they are U.S. citizens, they are referred to INS, which will screen and identify those it deems to be deportable.

This is a denial of due process for everyone, and clearly illegal in the case of those inmates who claim citizenship based on birth in the United States.

That this policy has continued through today in California is suggested in LA Sheriff Department's Officer Al Woods in his June 14, 2007 affidavit included in the government's responses to the habeas petition filed by the Southern California ACLU on behalf of Peter Guzman in June, 2007. In that document, Woods acknowledges that Guzman had told the police who arrested him and the agents who admitted him to the jail that he was born in California.



This is a remarkable statement, in which Woods is admitting that the LASD routinely breaks the law. Regardless of Woods' unsubstantiated assertion that “illegal aliens often times falsely represent their place of birth” the law requires that the assertion of birth in the United States puts the burden of proof on the government to show otherwise. The admission that Guzman “stated he was born in California” absent any other proof otherwise means that there were no reasonable grounds for suspecting Guzman was lying, and therefore no grounds for coercing him into signing a “voluntary” deportation order other than the illegal ones of racial profiling, incentivized by the compensation to local jails for housing criminal aliens.

Moreover, the jails and prisons who profile aliens and continue to house them are violating Congress's admittedly bad intentions. The 1996 IIRPA legislation, in explaining the desire to revise bilateral treaties to deport criminal aliens, states: “It is the sense of the Congress that the focus of negotiations for such agreements should be (A) to expedite the transfer of aliens unlawfully in the United States who are (or who are about to be) incarcerated in United States prisons.” The measure specifically calls for the treaties to end the requirement of prisoner consent to these transfers.

However, as was the case for David in Georgia, Guzman was not transferred to a Mexican prison but served the same amount of time in the LA County Jail as other prisoners would serve.

The only difference between the sentence of Guzman and other inmates with US citizenship in the LA County Jail is that Guzman (and Robert, and other US citizens wrongfully deported to Mexico whom I profiled in “Thin ICE”) had alien classifications leading to substantial federal dollars to the local and state prison systems, as discussed in yesterday's post.

(Note: I was planning to post the habeas petition on behalf of a Maryland inmate who is a US citizen but was misclassified as an alien without due process by the Maryland prison and then Department of Homeland Security. However, since sending me the information, the attorney has expressed a desire to consult his incarcerated client for permission to publicize his situation; I am respecting the attorney's request not to post the habeas petition until that has been obtained or the hearing has been held, whichever comes first.)

Photo by Don Bartletti, LA Times.

How Early Release Turned into Indefinite Detention: Criminal Alien Laws from the 1990s

I've been writing this summer about David, a US citizen who should have been paroled in 2005 but continues to be held in Hancock State Prison in Sparta, Georgia because of wrongfully initiated deportation proceedings that have twice been terminated by an immigration judge. Nonetheless, the Department of Homeland Security attorneys continue to appeal and the Georgia Correctional Authority continues to hold David. (To read more on this case, see yesterday's post and also the posts tagged David.)

Why is this Happening?

Yesterday's post ended with a quotation from David's attorney's response to the DHS appeal charging them with failure to carry out their duties as government officials to the rule of law and justice. Neil Rambana alleged a procedural quagmire depriving David of his liberty.

Why the quagmire? What kind of quagmire is this, exactly? It turns out that David's situation is not an esoteric anomaly but symptomatic of a quiet scheme whereby state prisons and the INS and now DHS were collaborating to rip off the federal government and deport aliens without due process.

As readers of “Thin ICE” may have noticed, some of the detentions of US citizens I describe were occurring before 9-11. The mechanisms for deporting US citizen are not the result of a newly over-vigilant DHS but were put in place during the Clinton administration.

In 1994, just before the elections that gave Republicans a majority and elevated Newt Gingrich to Speaker of the House, Congress passed the most expansive and expensive crime bill in history. One key part aimed at deporting aliens who were convicted of a felony. The ostensible goal was budgetary: in exchange for identifying criminal aliens and targetting for early parole on condition of deportation those convicted of nonviolent offenses, Congress was going to reimburse the state prisons and jails for alien inmates. The funds appropriated for this purpose alone were enormous:
`(A) $130,000,000 for fiscal year 1995;
`(B) $300,000,000 for fiscal year 1996;
`(C) $330,000,000 for fiscal year 1997;
`(D) $350,000,000 for fiscal year 1998;
`(E) $350,000,000 for fiscal year 1999; and
`(F) $340,000,000 for fiscal year 2000.

The program has been reauthorized and is now called the State Criminal Alien Assistance Program.

Subsequent authorizations were between $250 and $565 million per year.

In other words, Congress wanted to give states an incentive to identify and deport criminal aliens. The outlay in federal expenditures, the thinking went, would be dwarfed by the savings from states not having to care for another country's criminals. A requirement for the funding is that states house all those classified as criminal aliens in maximum security facilities.

Even before the measure was implemented it was clear that the states realized that this was a huge bonanza for them, and that the big money was not going to be from the early release of inmates, but from the federal funds coming to them once they identified their inmates as aliens. Here's what the Texas legislative analyst wrote of the program in the 1994 Identify All Incarcerated Illegal Aliens and Deport Eligible Nonviolent Criminal Aliens:

The recently passed federal Violent Crime Control and Law
Enforcement Act of 1994, popularly known simply as the "Crime Bill," creates an additional incentive to identify all incarcerated illegal aliens. The bill provides that the federal government will compensate states and local jurisdictions for the average cost of incarceration of undocumented criminal aliens.11 Any enhancement to TDCJ's current method should improve its ability to properly identify undocumented aliens.

Later the report states:

The major gains to general revenue would be in the form of additional federal aid received under the Crime Bill for compensation to the state for the incarceration of illegal aliens.

In 1996, this measure was further strengthened through the Illegal Immigration Reform and Immigrant Responsibility Act, a law designed to harm immigrants in many ways, including by depriving them, and therefore also citizens, of due process rights during immigration proceedings. The bill lowered the threshold for deportation to a felony OR two misdemeanors, and it added language bolstering the criminal identification and deportation program:

“To the extent of available appropriations, funds otherwise made available under this section with respect to a State (or political subdivision, including a municipality) for incarceration of an undocumented criminal alien may, at the discretion of the recipient of the funds, be used for the costs of imprisonment of such alien in a State, local, or municipal prison or jail.” (Sec. 328).

The bill further states that “Of the $130,000,000 appropriated in fiscal year 1995 for the State Criminal Alien Assistance Program, the Department of Justice disbursed the first $43,000,000 to states on October 6, 1994, 32 days before the 1994 general election, and then failed to disburse the remaining $87,000,000 until January 31, 1996, 123 days after the end of fiscal year 1995.” This section goes on to complain that the States are owed $66,000,000 in funds for housing “documented illegal immigrant felons,” when in fact the people identified as “illegal” were never given hearings before this designation was assigned. (Section 328).

If Congress only pays for aliens, then the state prisons can ask the federal government to pay for anyone's incarceration by designating them aliens. Since there are no hearings to determine or even appeal this, the only losers are the inmates. (Section 250 gives the INS the authority to deport people who have records of criminal convictions and Section 328 provides the rules for implementing this policy through the prisons.)

Sure enough, this is exactly what happened to David, giving Georgia Correctional Authorities an incentive to not only misclassify a US citizen as an alien, but also to hold him for a period longer than he would otherwise be incarcerated. Each day David is held means more money going to the Georgia state prisons.

The evidence for this is as follows:

-The Notice to Appear form used for David's initial reclassification in 1999 was printed in 1997 by the INS as part of “removal proceedings under section 240 of the Immigration and Nationality Act,” relying on the section allowing for the use of state records of a criminal conviction to be grounds for the removal of aliens.

-The form used for David's parole is one that was issued in 8/95 and titled: “Order of Conditional Transfer to I.N.S. Detainer, with Detainer.” Its language is consistent with the 1994 law.

It states that the Georgia State Board of Pardons and Parole has been

“informed by the United States Department of Justice Immigration and Naturalization Service that the subject of this Order is an alien subject to deportation, and the Board finds the welfare of the citizens of Georgia and the orderly administration of this state's penitentiary resources would be best served by an action allowing the subject of this Order to depart Georgia custody for the sole and limited purpose of enabling such actual deportation action to occur.”

The order concludes, “Failing actual deportation, the subject of this Order shall be returned to Georgia custody to resume service of all sentences without credit for the time lapsing while out of Georgia custody.” This means that David's prison sentence could be extended an additional 8 months, the amount of time he was released for deportation proceedings into ICE custody.

-If the incarceration of 8 years for a prison sentence of ten years for a nonviolent crime is not sufficient evidence in itself of Georgia pocketing the federal per diem money for housing aliens, rather than releasing them early, then perhaps the direct statement of a Parole Board officer should suffice. In mid-July, before I saw a copy of David's "early" parole on condition of deportation order, I had been asking various Georgia prison officials whether aliens who were paroled on condition of deportation were paroled and deported earlier than they would be if they had been citizens, or whether they served the same length in prison that they would serve if they were US citizens.

Most prison officers said they had wondered about this themselves and didn't know. But when I finally found someone in a policy-making position in the Parole Board office, here's what he said: “If the Parole Board in Georgia makes a decision to grant parole, they don't make it earlier than what it would be if they do not have an ICE detainer.” He reiterated the point later in the conversation, as I was asking about the particulars of David's case, “Just because they have an ICE detainer does not mean we will consider them [for parole on condition of deportation].” This is a direct violation of the federal law under which Georgia is receiving compensation for their criminal aliens.

During this conversation, I pointed out the contradiction of this officer conceding that for David to be paroled on condition of deportation he would have had to have served his entire sentence and him also stating that David would be reincarcerated rather than released after the judge issued an order terminating his deportation proceedings.

If they only release people for conditional parole who have served out their sentences, then on what grounds can these people be returned to prison if ICE does not deport them?

His reply: “This conversation is over.”

After reading the language of the so-called early deportation orders, the travesty of law and justice become even more clear. Georgia is using David to line the coffers of their prison system. Georgia saves money only if it releases people classified as US citizens. It earns money by holding people it helps ICE classify as aliens, even if these people are also US citizens denied due process necessary for them to maintain their citizenship rights, including at minimum protections again wrongful imprisonment.

Tomorrow: Habeas petition filed for Maryland inmate in similar situation.

US Citizen Continues to be Wrongfully Imprisoned

In June 2008, Neil Rambana, an immigration attorney in Tallahassee, contacted me about a client who was being held in deportation proceedings in Georgia, even though an immigration judge had issued an order terminating deportation proceedings in 2006. Over the next couple of weeks I posted a few pieces about the case of the man I'm calling David, which you can find by clicking on this tag below.

As I continued doing my research I realized that just as US citizen Peter Guzman's 2007 removal to Tijuana was a symptom of ICE detaining and deporting thousands of US citizens, David's wrongful classification turns out to be a symptom of a widespread practice of prisons gaming laws that Congress passed in the 1990s. Prisons classify their inmates as aliens and then receive hundreds of millions of dollars from the federal government, with no safeguards for those who are actually US citizens.

This posting describes what happened to David. Tomorrow's will show how it fits a nationwide pattern. (Meanwhile, the report documenting the political screening of immigration judges and DHS prosecuting attorneys is here.

David's Story

In 1998 David began a ten year prison sentence for a nonviolent crime (omitted for reasons of privacy) at the privately run Coffee Prison, a medium security facility in Georgia used for inmates posing a low risk of violence or flight. Prison blogs are generally favorable about the conditions there. As Georgia prisons go, Coffee isn't that bad.

In 1999, the INS classified David as an alien and initiated deportation proceedings against him.

David, however, is a US citizen at birth by operation of law, and has the documents to prove this, as he has done twice to the satisfaction of an immigration judge. David's father, José, now deceased, had a birth certificate showing he was born in Los Angeles in 1925. Similar to another case I describe in “Thin ICE” (The Nation, June 23, 2008), José's family returned to Mexico in the early 1930s. This was during period when immigration agents were illegally removing legal residents and US citizens with Mexican ancestry, a phenomenon documented in a contemporaneous government report published in 1931, as well as by historians today (for more on the link between these earlier illegal deportations and those of today, see this post).

José married David's mother and fulfilled the other requirements that would allow his Mexican-born children to be US citizens at birth by operation of law. In 1989, when David was 15, he went to the US Consulate office in Mexico and presented the relevant documents. The American Vice Consul signed a document indicating that David had “registered at this office as a citizen of the United States, having acquired United States citizenship by birth under Section 301(g) INA 1952.”

David then joined his other siblings in the US and used these papers for the purposes of marrying his wife and bestowing US citizenship on her as well. In other words, David has documentation of two different immigration agents in two different time frames, one in Mexico and another in the US, accepting his documents as proof of his citizenship.

According to David, an immigration agent told him that a corrections officer at Coffee had contacted Immigration and Naturalization Service (INS) in 1999 to request the immigration hold. David writes, “You can prove he is lying because he didn't want to take my fingerprints or even a picture. Thanks to this hold I had to do seven years of my sentence at a high security level prison because of the hold I had from immigration.”

There are several problems with this policy but perhaps the most glaring one is that there is no due process for appealing the classification. INS and now ICE puts the hold on the inmate and the earliest this can be appealed is when the prison releases the inmate into the deportation process, after the damage of their reclassification has occurred.


A Georgia Corrections agent who works in the Georgia Correctional Authority Classifications office told me that once ICE notifies their office of an immigration hold, the inmate is automatically reclassified as high security. I asked what the person could do if he is a US citizen, if there were any appeal process within the prison. I was told that the only way the Classifications office would change the status is “if immigration contacts us and says they're a citizen. Immigration has to tell us.”

I asked about the inevitable delay before this would occur, that the sentence would be over before an opportunity to change the status. Her response: “We just have to wait until the outcome. We don't say this person's wrong or right; we just wait until the final outcome.” This is a bizarre reply. The reclassification is indeed privileging the assertion of the government's claim that the individual is an alien and ignoring the citizen's protest against this without any due process.

For David, it took seven years of him waiting in a maximum security facility for him to prove that he should never have been incarcerated this way, and even now this proof has not been sufficient for him to be released and he remains incarcerated with an immigration hold.

A complicating fact in this narrative was the 90% policy Georgia initiated in 1998, requiring anyone convicted of almost any felony, including nonviolent ones, to serve 90% of their sentences. A judge eventually ruled this unconstitutional, and in 2005 David received a form letter from the Chairman of the State Board of Pardons and Paroles informing him of this:

“A Fulton County Superior Court judge recently signed an order ruling that the Parole Board's 90% policy, adopted in 1997, was 'implemented improperly and as a result is ineffective and has no force or effect.' After consulting with the office of the Attorney General, the Board has decided not to appeal the decision and to apply the ruling to all cases previously considered using the 90% policy.”

The letter informs David that he will be evaluated for parole based on his “grid score,” which in light of all the certificates and other commendations in David's file, must have been quite high. The letter also said that because of the large number of inmates affected, there would be delays in evaluating the cases—hardly respectful of the important liberty interests at stake.

In the event, in late 2005, eight years into David's sentence, the Board granted David “parole on condition of removal.”

The order was called an “Early Release” even though David was not being parole early, but by the state's own account, he had been held too long! (Apologies for being mysterious here but David's attorney, Rambana, requested that I not reveal the crime. I can say that it is nonviolent, victimless, and virtually never charged.)

David's sister told me that David had been in touch with her to obtain legal representation for this. Rambana's firm provides pro bono representation and he accepted the case. In August, 2006 Rambana thought his work was done. The immigration judge William Cassidy issued an order terminating deportation proceedings and Rambana assumed David would be released.

After ICE lost the case, they did as they normally do and appealed the adverse decision. This meant that the immigration hold continued. Due process required that ICE notify David's attorney, Rambana, of any further action but this never happened. ICE sent their appeal to the Board of Immigration Appeals and withheld notice of this from Rambana.

During this period, according to David's sister Erica, David was desperate to be released and repeatedly said he was going to sign the deportation order, just so he could leave the prison where he'd been for almost 9 years, even if that meant losing his citizenship rights and being sent to Mexico. Erica tried calling the parole office to find out what was going on but no one answered the phone and when someone finally called her back she began to cry in frustration.

Erica, who works in animal control in southern California, expressed her frustration at the absence of the rule of law, complaining that every time she spoke to a different person she was told a different story, “One day I tell them, this does not depend on what officer I get, but what the law is. No matter who I talk to, I should get the same answer.”

Erica also told me about David's threat to sign out: “We said, no, you don't resign. You've already been in there 9 years, just one more year.”

In March 2008, the Board of Immigration Appeals, which, like ICE, has been documented as being illegally staffed by political appointees, instructed the judge to hold a new hearing and issue his decision in writing. This is the order that was sent to Rambana's office, alerting him 19 months after he thought his client had been freed that David still was in deportation proceedings and still being held in prison.

It is unconscionable that it took the BIA this long to act on the appeal. The delay is itself part of the coercion used to pressure detainees to sign out. The absence of a decision is not neutral but gives the power of a punishing imprisonment to ICE, which uses this to pressure detainees to drop their appeals and be released in a foreign country. Although David was physically in the custody of the Georgia prison, this was only because of the ICE detainer. Absent the INS hold, David would have been paroled and out of prison at the end of 2005.

That neither ICE nor the BIA are especially interested in the law here can be seen by their failure to adhere to the burden of proof requirements for deportation cases. According to the law established through BIA and Supreme Court precedents, once a foreign-born person claiming to be a US citizen produces reasonable evidence substantiating a claim of US citizenship, then the burden of proof shifts to the Government show otherwise.

The DHS appeal of the first termination order does not even come close to providing this proof. Instead it raises allegations of the possibility of fraud and illegality that any skeptic could raise about any document, and provides not a single scintilla of evidence challenging their authenticity. For instance, after acknowledging that David had submitted a copy of a card recognizing him as a US citizen to the court, the DHS states, “there is no indicia of reliability in such card.” First, so what? The law does not require people to have US passports or fraud-proof certificates of citizenship, just reliable evidence of citizenship in any form. David presented copious documentation in the form of receipts, envelopes, and notarized, dated stamps indicating that this was a genuine card that had been issued to him in 1989. David also submitted his father's US birth certificate and death certificate—both indicating US citizenship—and documentation of his father's paystubs showing residence in the US for the requisite time frame.

The DHS states “This scant, unauthenticated evidence, cannot serve as a basis for the determination of Respondent's citizenship.” This is demonstrably false since the documents were authenticated by a notary and because an immigration judge had judged this evidence sufficient to determine David's US citizenship. Moreover, DHS provided no counter-evidence other than its own epistemic authority to decree its doubt. This is not proof but bullying. The immigration judge seemed to agree and on June 11, 2008 reaffirmed his first ruling terminating the deportation proceedings.

Sit down. DHS appealed AGAIN. In this appeal, submitted on June 12, the ICE attorney stated that the immigration judge had not complied with the BIA decision directing a new hearing with a transcript. There is not a shred of evidence proffered to indicate that David is not a US citizen, only a delaying tactic without substantive foundation to deprive David of his liberty.

In his reply to this appeal, David's attorney, Rambana, lashed out at the reckless disregard for lawfulness on the part of the DHS:

“[During the course of his removal proceedings DHS counsel's obligation to see that the law was observed was not fulfilled. 'Counsel for the government has an interest only the law being observed, not in victory or defeat in any particular litigation.' See Reid v. INS, 949 F.2d 287 (9th Cir. 1991). See also Freeport-McMoRan Oil and Gas Co. v. F.E.R.C., citing the ABA Code of Professional Responsibility holding government lawyers to a higher standard than private lawyers and finding 'it astonishing that an attorney for a federal administrative agency could so unblushingly deny that a government lawyer has obligations that might sometimes trump the desire to pound an applicant into submission.' Freeport-McMoRan Oil and Gas Co. v. F.E.R.C., 962 F. 2d 45, 48 (D.C. Cir. 1992). In the instant case, the truth of the matter is that the government wins when justice is done. Matter of S-M-J, 21 I&N Dec. 722, 727 (BIA 1997). However, here, the Respondent who should have been aided in obtaining any procedural rights or benefits required by the statute, regulation or a controlling court decision was left to linger in the procedural quagmire of DHS.”

For an explanation of the national policies driving this, please read tomorrow's post.