Newly Released ICE Memorandum Admits US Citizens in ICE Custody

On November 6, 2008 James Hayes, Jr., Director of Detention and Removal Operations (DRO) for Immigration and Customs Enforcement (ICE), signed a memorandum “Superseding Guidance on Reporting and Investigating Claims to United States Citizenship."  (Among the many Obama holdovers of policy and personnel from the Bush administration are the folks running ICE, including Hayes, presently "Acting" in this same position.)


The memorandum spells out the procedures DRO agents are supposed to follow when they are holding U.S. citizens, a situation the memorandum acknowledges is especially likely to occur when DRO officers are “exercising authority under section 287 of the Immigration and Nationality Act, 8 U.S.C.S. §1357,” a provision authorizing local law enforcement agencies to detain aliens, not U.S. citizens. Section 287 has been associated with numerous egregious law-breaking acts by local police officers and sheriff's officers, as well as by ICE agents, including the deportation of US citizens through classifications initiated in state prisons and county jails.

I recently received the document in partial response to a FOIA request for ICE documents pertaining to Mark Lyttle, a U.S. citizen who was born in North Carolina. Last fall ICE agents invented a name for him and signed documents indicating he was born in Mexico, even though their own reports from various databases clearly stated that Mark was a U.S. citizen and born in the United States. (For more on Mark's case, read here.)

The two-page memorandum reveals the following:

+ While ICE public affairs officers were telling reporters ICE was "never" detaining U.S. citizens, ICE Operations officials were telling its detention and removal officers, here's what you should do to stop detaining U.S. citizens.

+ ICE officers are supposed to be investigating whether people who may not know they are U.S. citizens are indeed U.S. citizens. In the cases I have studied, agents do not do this, and they ignore hard evidence of US citizenship that arises in this research. (The file ICE had for Mark included printouts from federal and state law enforcement databases indicating in numerous places that he was a US citizen and that he was born in the United States.)

+ ICE is violating its policies on classifying documents. This “law enforcement sensitive” classification may be used only when the release of the document “could cause harm to a person's privacy or welfare, adversely impact economic or industrial institutions, or compromise programs or operations essential to the safeguarding of our national interests.” (See Department of Homeland Security Management Directive System's classification “For Official Use Only.”.)

None of the above apply to a memorandum protecting the civil rights of U.S. citizens.

This rule states further: "Information shall not be designated FOUO [this includes "law enforcement sensitive"] in order to conceal government negligence, ineptitude, illegalities, or other disreputable circumstances embarrassing to a government agency.”

Prohibiting public disclosure of rules that protect the rights of U.S. citizens has no legitimate law enforcement purpose. Its only function is to allow ICE to deny it is deporting US citizens and to deny those in ICE custody knowledge of their due process rights.

Should ICE be commended for issuing a memorandum in which it is attempting to encourage more care on the part of its agents? This is tempting, if one lives in the land of Sheriff Joe Arpaio. For those of us who still remember the U.S. Constitution, this document should be a call to action.

The only honorable and legally valid memorandum from an agency aware that when it tries to implement a law designed to deport criminal aliens it demonstrably risks deporting U.S. citizens, i.e., kidnapping, is one to Congress urging the repeal of 287: "We cannot enforce this law without violating the due process rights of U.S. citizens. Therefore, we are requesting that Congress repeal 287 g and provide full due process protections to everyone in removal proceedings."

Of course Congress can also do this itself, or it can wait and allow US citizens to be rendered stateless while wasting taxpayer money on the lawsuits across the country as these situations are remedied.

(For more on the illicit actions from 287g operations, see "The Policies and Politics of Local Immigration Enforcement Laws," issued by University of North Carolina and the North Carolina ACLU in February 2009 and "Forcing Our Blues Into Gray Areas: Local Police and Federal Immigration Enforcement," a report by Appleseed, revised January, 2008.)

Daniel Ellsberg and His Country: An American Love Story

"The Most Dangerous Man in America," a documentary by filmmakers Judith Ehrlich and Rick Goldsmith, is being shown in Los Angeles and New York (until September 29th at the Film Forum) as well as film festivals. I hope it gets a broader release because it's best seen in a theatre, not because of the film's cinematic qualities but because that's one way to feel what Ellsberg and the filmmakers show us: individual conscience is a group activity.

The film, brilliantly edited, tells a number of stories and stories-behind-the-stories (and it was a nice surprise to encounter in the film my friend and co-editor Richard Falk, himself a distinguished anti-war scholar and activist).

As political narrative the opening scenes depicting the Johnson White House's fabrication of Vietnamese aggression to elicit Congressional authorization for the Vietnam War are surreal in their spot-on resemblance to how Cheney obtained approval for the Iraq war. The insidiously crafted bogus threats indicating America was vulnerable worked their magic on two gullible Congresses. In the film, as in life itself, the people's branch of government comes off almost as bad as the imperial presidency.

(When Ellsberg first tries to leak the Rand Corporation's 7,000 page "Top Secret" report documenting U.S. lies behind the conflict dating back to the 1950s, it was to a spineless Senator J. William Fulbright, Chair of the Senate Foreign Affairs Committee who, despite his supposed rejection of U.S. policy, pretended as though the report did not exist. Ellsberg was shocked that politicians who had opposed the war for much longer than he had were too scared to release documents that might have ended it. He spent months carefully organizing the report's copying and delivery, and then nothing happened.)

It took months of smuggling out pieces of the report and then copying them in a secret location before Ellsberg had enough copies to share with key politicians. For this, Ellsberg believed that he might go to prison. In a typically thoughtful choice of honesty over secrecy, which also was an attempt to insure his 14-year-old son and nine-year-old daughter would not think him a kook -- what would they think if one day he's suddenly arrested as a traitor? -- he explained what he was doing as he was doing it. More than that, he wanted to honor them by including them in this important work; one evening his son was making the copies and his daughter was cutting off "Top Secret" at the top.

Ellsberg knew that he was putting his children at risk in various ways, including possibly sentencing them to a father behind bars, but preferred this over the certain calamity of lies. One of the film's motifs is calling into question bourgeois ideals of family and security, suggesting that these values corrode integrity and life itself. (If you care more about what your friends and co-workers think of you than you do about government bombing of civilians, innocent people die.)

Children 10 or older will really enjoy this film.

Why is this an American love story? Because it opens with a recently divorced Ellsberg working as a defense analyst and wooing a woman who, while drawn to him, could not abide by his support of the war. She ends their relationship but it seems that she started a process that profoundly changed him. Later, as Ellsberg is on the brink of leaking the Pentagon Papers, they reunite, marry, and Patricia supports him in this decision and goes underground with him for a while.

But more than their personal relationship, this is a story of Ellsberg's commitment to his government and democracy, faith in the idea that if the people knew the truth, they would do the right thing and end the war. A refrain that occurs more than once is Ellsberg's incitements of his fellow citizens to action. Quotations from Thoreau, Gandhi and Martin Luther King, Jr. come easily to him.

Despite the film's concluding notes indicating Nixon's resignation and the end of the Vietnam War, the Pentagon Papers seem to have played more of a role in the former than the latter. Nixon becomes consumed by revenge after the Supreme Court allows the press to publish the Pentagon Papers and this leads him to establish the secret "plumbers" group that would break into Ellsberg's psychiatrist's office and, later, bug the Democrats at the Watergate complex.

It seems a little sad but also fitting that the virtues of the woman Ellsberg married and that she admired in him meant so little to the country on whose behalf these passions were devoted. At one point Ellsberg quotes the aphorism "if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country" and tells us that he never understood why anyone would endorse loyalty to a friend instead of one's country when morality seemed to demand the opposite. There are a few other comrades-against-arms we meet who embody the Ellsbergs' ideals, all allies through the peace movement, but America does not come off as an obviously worthy love interest.

True, there is justice and even poetry when the judge in the Ellsberg and Russo case declares a mistrial and dismisses the charges after a Nixon henchman tried bribing the judge by promising him a high-level FBI appointment, but in the end Ellsberg seems to realize that the leaked report, the words themselves, did not really matter and his country would act in the same stupid way it always had. Ellsberg reflects on what it meant that after all he risked and lost, people seemed not to care.

It is unclear whether Ellsberg believes that his love for America has been betrayed, will remain ineluctably unrequited, or whether America might someday reciprocate. Perhaps that's what makes this such a great story.

UPDATE, 9/28/09: Today's column by Frank Rich shows how these debates from the 1960s are being rehashed in the Obama White House.

Deported New York City Resident Alleging Unlawful Detention Wins $145,000 Settlement From NYC, And So Can You!

photograph from tenth anniversary of NYU Immigrant Rights Clinic

A couple of weeks ago Cecil Harvey, a legal permanent resident for 36 years and a citizen of Barbados, received his check from the City of New York for $145,000, part of a settlement last May in response to his lawsuit claiming Rikers Island Jail illegally confined him for over a month because the jail staff thought Immigration and Customs Enforcement might want to deport him. [Correction 9/10/09: Mr. Harvey directed that $10,000 from the settlement be donated directly to the NYU Immigrant Rights Clinic, so his personal check was for $135,000.]

Especially inspiring about this lawsuit is that a detainee and immigration attorneys who are more used to playing defense than offense in the legal system prevailed. Their victory stands as an object lesson for thousands of other U.S. residents who are being illegally detained by law enforcement. Crucial here is that Mr. Harvey won these damages despite being deported as a criminal alien. In other words, the City of New York tacitly recognized that its guards cannot violate anyone's civil rights, even those of an alleged criminal alien. (Mr. Harvey, although presently in Barbados, does not concede the legality of his deportation.)

Under 8 CFR 287.7(d), jails are not allowed to hold someone awaiting transfer to ICE custody for more than 48 hours, not including weekends or holidays. But Rikers held Mr. Harvey for ICE 35 days in 2003 and in 2006 Rikers again held him for more than 48 hours. The jail's illegal deprivation of Mr. Harvey's liberty is, according to the complaint, part of a systemic practice in which the jail regularly ignores the immigration law and the due process rights of immigrants:

40. On information and belief, pursuant to this policy, NYC DOC frequently detains immigrants beyond the 48 hours authorized by 8 CFR 287.7(d)(3).

41. Mr. Harvey met other victims of this practice during the months he spent in ICE detention in 2007.

42. On information and belief, NYC DOC officials with final decision-making authority acquiesced in the decision to hold Mr. Harvey, with deliberate indifference toward. theresulting clear violation of his constitutional rights.

The text above is from the 18-page complaint filed on Mr. Harvey's behalf in October, 2008 by Alisa Wellek and Laura Trice, law school interns supervised by Professor Nancy Morawetz at New York University's Immigrant Rights Clinic.

The complaint contains many allegations that might trigger a lawsuit under 42 U.S.C §1983. (The statute allows people to sue those acting under color of law for violating their civil rights.) In this case, the underlying injury was the illegal and unconstitutional deprivation of Mr. Harvey's liberty, a serious example of government misconduct and in some cases felonious.

Keeping people locked up is supposed to hurt. That's the assumption of our current system of criminal incarceration. These harms may include the loss of employment, frayed family relations, and even medical complications from discontinued health treatments.

Mr. Harvey's unlawful detention resulted in all of the above. He knows he is not alone, and has called for "outlawing the conspiracy between between New York City and ICE."

Professor Peter Markowitz, who directs the Immigration Justice Clinic at the Benjamin Cardozo School of Law in New York City, characterized Mr. Harvey's experience as part of a larger pattern of illegal treatment of immigrant detainees in New York City custody – a pattern that has contributed to the unnecessary deportation of countless New Yorkers whose families are left behind.”

NATIONWIDE PROBLEM
Actually, this is happening around the country, including in the DeKalb County Jail in Georgia. For instance, Oscar, who was deported in June to Mexico, also seems like he has a strong case to sue for the violation of his liberty interests. In a fact pattern that holds for thousands of deported US residents, Oscar was picked up by the local police on a pretextual arrest, held for two weeks, unlawfully deprived of visitation by his wife, and then shipped off to Georgia and deported to Mexico, where I met him in late June.

Oscar, 25, originally entered without inspection nine years ago with his father when he was 16. He and his wife, Kimberly, a U.S. citizen, have three young children. Oscar, a contractor, has no criminal record, and if the DeKalb County Jail had released him after its 48 hour legal period for holding him for ICE had expired, then perhaps he could have obtained an attorney and figured out a way to remain in the country legally. (This was part of Harvey's allegation as well: the illegal detention impeded his ability to defend against the deportation.)

I spoke to Kimberly in July, on what turned out to be their wedding anniversary. She said, "He went to Court on Tuesday and the judge dropped all the charges. They wouldn’t let him out because ICE had a hold on him for 48 hours. When the 48 hours was up they put another hold on him. All they would tell me is that ICE had a hold on him. I would call back up there to see if they came and took him and they said they took another 48 hour hold on him. He was there for two weeks."

According to Professor Markowitz, there is no legal means for ICE to "renew" a hold, and yet jails routinely hold people for more than the 48 period legally allowed.

Linda, Kimberly's grandmother, isn't surprised, "That's the way the county is. They don't care. If they want to hold you for two weeks, they'll hold you for two weeks. This whole situation is terrible. The little girl is crying. They made the children here lose their father."

I tried calling Kimberly yesterday but her cell phone is turned off, presumably because she is unable to pay the bill. (She and Oscar both told me he was unable to reach her because without his income she couldn't afford the phone.)

DEPORTED US RESIDENTS CAN SUE, TAXPAYERS LOSE
The biggest disappointment for Mr. Harvey, indeed for any resident of a country whose government wrenches them from their homes and families because of fantasies about nations, was that he was ultimately shipped off to Barbados in 2007. His lawsuit states that the deportation itself was largely due to the impact of detention on his ability to prepare his case--he was stuck in an ICE facility in Alabama.

What does it mean that a guy who had been kidnapped and held incommunicado by a foreign government not only decided to fight for his ability to stay in that country, but also that the United States Constitution was meaningful enough that he could use it to sue the government that was breaking its own laws?

The good news, only possible because of Mr. Harvey's gutsy and inspiring use of the law to stand up to the government, is that New York City's attorneys acknowledged by their substantial settlement that Rikers Jail cannot break the law, even when the law is protecting a deported noncitizen and a criminal. This is an extremely important precedent that could potentially allow tens of thousands of other deported US residents to sue the places that illegally held them as well.

THE TAKEAWAY(S)
Alisa Wellek, one of the NYU law students who submitted the complaint, said, "One of the huge takeaways is that localities are subject to litigation. ICE isn't paying for it. New York City is paying for it." Her hope is that as the word gets out, local jails, including Rikers, will stop illegally holding people.

One thought for immigration attorneys and activists going to detention centers: download the lawsuit here and do it yourself! And don't be afraid to show some spine. According to one source familiar with the negotiations, the City's initial offer was $1,500. It's hard not to infer that the City attorneys wanted to avoid a lawsuit not only because of the damages but because of what would be revealed in discovery, when the jail and ICE would be subject to subpoenas. In light of the widespread illegal practices elsewhere, this motive may not be unique to New York City.

(The New York City Law Department did not respond to a request for comment.)

Another thought for the Department of Justice: start charging the law enforcement agents who are illegally holding people with false arrest and kidnapping. The law is clear about how long people can be held. When US Attorneys or state prosecutors do not file charges, it imposes an enormous hardship on the law-abiding taxpayers who must foot the bill. Not only is a criminal sanction the only real deterrent for the ICE agents and jail guards who are violating the rights of US residents--the City of New York is paying the settlement, not the wardens--it is the appropriate response to the outrageous and cavalier treatment of people the government is supposed to protect, not persecute.

Raleigh News and Observer Story on Mark Lyttle and the ICEcapades

Kristin Collins' article U.S. ignored evidence when it deported U.S. citizen to Mexico appeared in today's Raleigh News and Observer. It provides a succinct and revealing account of ICE mishaps leading to Mark Lyttle's deportation.

(Credit for today's post's headline goes to my friend Jamie; credit for the image goes to Serendipity.)

update 8/31/09: the original post was linked to the Charlotte Observer, but the story appeared first in Kristin Collins' own Raleigh News and Observer, as now linked above.

The Mexican-izing of Mark Lyttle: The First Steps in Deporting a US Citizen

8/21/09--click here for a slightly different version published today on Huffingtonpost.
________________________________________

Immigration and Customs Enforcement (ICE) has been deporting over a million people each year. Most are Mexican citizens residing here without legal status. But thousands of those being detained and even deported are US citizens.

This sounds unbelievable, and it should. ICE has no authority over US citizens. Nonetheless, a systematic examination of thousands of individual case files for detainees in southern Arizona between 2006 and 2008 revealed that just over one percent were deemed US citizens by an immigration judge.

Estimates are that an additional one percent of detainees are US citizens but either do not know this, or choose not to remain locked up for an indeterminate time with few due process rights and hence falsely confess to alienage and agree to be deported.

(This estimate is based on reports from criminal attorneys contacted to file habeas briefs, as well as pro bono immigration attorneys and attorneys who work on federal contracts for Legal Orientation Programs servicing detention centers.)

Mark Lyttle, 32, a US citizen born in Salisbury, North Carolina can attest to all of this. He knows what it's like to be kicked out of his own country and, among other things, have to pretend to be Cuban in Honduras to avoid being put in a US prison for false impersonation of a US citizen, a charge lodged against Mark by Customs and Border Patrol at the Hidalgo border just after Christmas when he tried to return home.

Right, this makes no sense, and it is unbelievable.

LEGAL INSANITY
Last week I received Mark's "alien file" maintained by the Department of Homeland Security. It includes a significant paper trail, or rather, copies of the legal paper chain that pulled Mark into statelessness.

Today I want to focus on the first tiny, ridiculously important event that led to Mark's four month journey through five countries in Latin America. In upcoming posts I’ll review additional documents.

SCAAP at Neuse Correctional Institution
North Carolina is one of the numerous states participating in the State Criminal Alien Apprehension Program. (For more posts on this, start here.) This means prisons screen for aliens or possible aliens and report them to ICE. The ICE agent then comes to the prison, in this case the Neuse Correctional Institution in Goldsboro, North Carolina, and interviews the inmate to determine if the person's legal status as well as criminal record warrant deportation.

On August 27, 2008, according to a Neuse employee, "five or six ladies who do the admin intakes" would have been typing into the North Carolina Offender database vital statistics for the approximately 60 inmates they were screening that day.

For Mark this meant a record stating:

Race: OTHER
Complexion: MEDIUM
Ethnicity: ORIENTAL
Place of Birth: MEXICO

Mark says he remembers the interview. The woman told him he had brown skin, so maybe he was from Mexico. Or maybe he was "Oriental," whatever that means. She was going to alert ICE to follow up. (Perhaps she did this by typing “Mexico” as Mark’s place of birth? I guess Mark was lucky: she could have typed "China" -- of course Mark has no relatives from Asia, either.)

The Neuse officer describing these procedures said the prison’s job is alerting ICE to possible alienage but not making a final determination. After all, immigration status is the province of federal immigration agencies, not state prison employees. Upon learning that ICE issued an administrative removal order for someone Neuse had incorrrectly characterized as born in Mexico, the officer said, “I don't understand how ICE did this. They're the ones who are supposed to check this.”

On September 2, 2008, Mark signed an affadavit stating that his name was Jose Thomas and he was born in Mexico. The document’s information is handwritten by ICE agent D. Faucette.

“Jose Thomas”-s mother is named as Jennie Lyttle (his mother’s name is Jeanne) and his father is named as Thomas Lyttle – deceased.

The man who was swearing that his name was Jose Thomas and he was born in Mexico signed the statement: “Mark Lyttle.” Mark does not speak a word of Spanish.

This was the solitary legal document attesting to Mark’s alienage on which ICE relied when on September 5 a deportation officer issued Mark’s “Final Administrative Removal Order.” This document is authorized by 238b of the Immigrant and Nationality Act and deprives aliens and US citizens alike of the right to a hearing before an immigration judge.

At the time this order was issued, ICE also had Mark’s FBI record designating his citizenship as “UNTD STATES AMERICA.” And ICE had Mark’s social security number. The false information that might justify removal was construed as factual and the accurate information indicating US citizenship was ignored. So was the information about Mark’s long history of mental illness.

WHAT HAPPENED DURING THE INTERVIEW WITH AGENT D. FAUCETTE
When Mark returned to the United States he was detained by ICE in the Atlanta airport and interviewed on April 22. This is from an ICE transcript of that interview:

Q. Do you remember why you were ordered removed in December 2008?
A. I talked to an ICE officer and I asked her how Mexico was and to put me over there just to see how it was. She made up some kind of paperwork to make it look like I was from there.
Q. Did you ever tell the ICE officer you were from Mexico?
A. I never told her that.

Mark has a history of mental illness, which also was indicated in the criminal records ICE possessed. Indeed on December 17, 2008, an ICE health inspector evaluating Mark just before he was put on a plane to Mexico wrote:


According to WebMD, Bipolar I disorder is a “form of mental illness. A person affected by bipolar 1 disorder has had at least one manic episode in his or her life. A manic episode is a period of abnormally elevated mood, accompanied by abnormal behavior that disrupts life.”

Mark may have had a manic episode of wanderlust – one from which he tried to recover by signing a sworn statement on November 3, 2008 stating he was born in the United States and a US citizen.

ICE, however, maintained the delusion that the inconsistent and, frankly, goofy statement of Mark’s alienage was authentic and claimed that the more credible and easily verifiable evidence of his US citizenship was false.

When I told Mark’s attorney, Neil Rambana, that ICE had Mark’s FBI record indicating he was a US citizen, Rambana was furious, “That is the most dangerous precedent I have ever heard. Someone swept a whole heap of dust under a carpet because they didn’t want to do their job. These things are easily identifiable by those who have superior resources, but they failed to exercise an iota of effort.”

Commenting on the ICE documents I was reading verbatim from the FOIA-d files, Rambana said, “Everything you are reading is disgusting to me. You just read three different things that all came full circle and all tried to cover themselves by saying he acquiesced. So what if he acquiesced? They should have ascertained the truth; they needed to dot their I-s and cross their T-s. They had someone who looks the part, so they seem to have thought, ‘I'm just going to shuffle him through.’”

Mark is adopted, as are millions of other US citizens. Mark's biological father's name is as Mexican-sounding as Mark Lyttle; and of course someone in the US Embassy in Guatemala City contacted Jeanne Lyttle and was able to issue Mark a US passport based on the documents Jeanne faxed in less than 24 hours.

Rambana does not believe Mark's adoption ameliorates ICE's culpability: "This is the 21st century. People have all sorts of families. If we're not paying attention to the fact that this is a different age, when the nuclear family is not essential to someone's existence, then we are failing as a society."

ICE RESPONSE
According to ICE Public Affairs Officer Barbara Gonzalez, the agency believes that the decision by William Cassidy in Atlanta to deport Mark validated ICE's findings. Cassidy, like many so-called immigration judges, runs a kangaroo court. His actions on other occasions have provoked formal and informal complaints. And he has consistently ignored the instructions in the Immigration Judge Benchbook pertaining to the treatment of respondents who lack attorneys.

ICE has not indicated any concern about its agents deporting Mark. Gonzalez stated, “The review of the case shows that the officers executed a removal order issued by an immigration judge, so to my knowledge, there is no investigation into the matter.”

When ICE presents sworn statements by their agents affirming the factually inaccurate narrative of a mental patient, and ICE ignores government records and sworn statements from the same individual that are factually accurate, and thus compiles a record prompting a judge to deport a US citizen, ICE thinks it has done its job.

On July 6, 2009 I asked Gonzalez: “Is it ICE policy that a sworn statement to alienage be considered evidence of alienage and a sworn statement of US citizenship be disregarded? This is a fact pattern in many cases of US citizens being deported and I consider it a very important policy question.”

As of yesterday she was still working on a response. I will report this and other statements from ICE as I review the additional documents in Mark’s file. (If you want to be notified of new posts, just click on the RSS box on the far right side of the URL panel above.)

MARK’S RESPONSE
Mark is living in a group home in Virginia. We speak regularly. Mark’s comments a couple of months ago seem especially apt: “They’re supposed to be professional but they screwed up. The judge is going to look at it and say, ‘You knew all this and you still deported him? You’re crazy.’”

I Might Harm U.S. National Security, Therefore I Am: The New Truth of Global Warming

Sure it's only the second day this summer in Manhattan to crack 90 degrees (a new microclimate of island cooling? a weather trick by God to tease Al Gore?), so I'm wondering if that's why I'm listening to WNYC turn over its airwaves to these women from the national security establishment announcing that, gasp,

global warming exists!

(Warning -- this is NOT a Saturday Live sketch)

"This is not a hoax," said Sharon Burke, Vice President of Strategy at the Center for a New American Security, a DC group that stands for Developing Strong, Pragmatic, and Principled National Security and Defense Policies, "This is a real phenomenon. When the military tells you you need to think about it, then you need to think about it."

Right. Of course we do ... in the cynical strategy sessions of overachieving liberals who want to share snacks at whatever table is set by the folks who have the nuclear football, there because they thought conservatives too, what, puritanical? humorless? midwestern? White? southern? male? -- or had some other hangup preventing them from honestly realizing their ambitions for crude power and prestige.

Apparently the First Way and Second Way think tanks were too committed to principled (not pragmatic) and pragmatic (not principled) policies.

The WNYC host, no dummy (but a sub, so I don't have his name), and no fan of "climate change" or even global warming, kept pressing Burke and also the Obama administration's Amanda Dory, Deputy Assistant Secretary for Strategy at the Department of Defense, about whether this new announcement of the sweltering skies was really about politics.

In response, Dory shared a story about a friend of hers in the Air Force who ended up in a class 2 hurricane, perilous for his a small craft, because the absence of hurricanes in that region since the mid-nineteenth century meant no one on the ground even checked to warn him.

Same moral of the story: if her pal in the Air Force almost had something bad happen because of weather expectations, then, gosh, the arctic ice cap melting matters.

I'd never heard of these folks or groups before, but their presence in the government and on the air waves is no accident. Third Way's website describes its activities as "products." Its About section states Third Way is the "leading think tank of the moderate wing of the progressive movement. We work with elected officials, candidates, and advocates to develop and advance the next generation of moderate policy ideas."

The Twitter version: we don't know who we are and we stand for nothing.

Tonight's radio segment fits a disturbing pattern in the Obama administration's militarization and "national securitization" of public needs that is not driven by genuine security needs -- e.g., for universal health care and public transportation -- or paranoid nationalism, and is not even genuinely neoliberal, but is the ideological equivalent of a kleptocracy, an unprincipled grab for agenda setting without having an actual agenda.

The absence of a functioning democracy today is signaled in economic problems occasioned by massive corruption and just plain stealing -- from Abramoff to Wall Street cronyism -- and not capitalism. Likewise, the absence of a functioning democracy reveals itself in pointless change signaled by belonging to the right clique -- from the New this or that to the Third something or other.

That's why the guy who ran on the platform of Change and Hope is presiding over More of the Same, and Then Some.

Where is the hope if the First Lady's big commitment is to military families instead of poor families? If education funding for research under the stimulus package is ramping up Department of Defense projects instead of funding for the arts and humanities? If the government wants to open the coffers to fully fund higher education for people who join the military, and not people who work at nonprofits? If everything from immigration policy to health policy are described as part of our "national security" and not basic human rights?

If the problem with Alaska resembling Hawaii, or is it vice versa, is that nuclear submarines might get dinged by surf boards?

It's a Small World

Today I met Oscar in Reynosa, Mexico at a shelter for migrants, “Nuestra Señora de Guadalupe.” Oscar speaks fabulous English, which isn't surprising. He has been living in the United States since he was 16. His wife is a United States citizen and so are his three young children, Isabella (4), Ethan (3), and Matthew (1). He was just deported yesterday from the Stewart Detention Center even though he has extreme hardship and perhaps other grounds for remaining in the United States. Oscar is the primary source of income for his US citizen family, which has lost phone service since his arrest.

Why was Oscar deported despite a strong case for obtaining legal residence? Well, in addition to the inane laws that prevent movement across borders, the person who made sure even the bad laws were not being applied properly was in this case ... William Cassidy, the same Atlanta judge who deported a U.S. citizen who was born in North Carolina.

I know that Cassidy is not the only judge running a court where respondents do not find justice, and that it really is a coincidence that the folks I keep running into whose due process rights have been trampled on have recently found themselves in Cassidy's court room. (Just to be clear, the purpose of my visit to the shelter was not to find people wrongfully deported. Oscar and I started talking after he heard me asking questions about a U.S. citizen who lives in Georgia and spent some time there after he was illegally deported by the same judge who deported Oscar. Oscar mentioned he also lives in Georgia, or had lived there until yesterday.)

Or maybe not such a coincidence. Cassidy presides over the hearings of the detainees in the Stewart Detention Center in Lumpkin, Georgia. These are the folks who are most likely to have detention itself serve as coercion for them to agree to deportation, even if they may have sound legal grounds for remaining in the United States, as Oscar does.

Oscar has never been convicted of any crime. The only reason he was being deported was a) he did not have a social security card; and b) Cassidy set his bail at $10,000, far too much for his family to pay. Likewise, he was too poor to afford an attorney.

A $10,000 bond for someone with strong ties to the community, no criminal history, and a strong case for establishing legal residence is a miscarriage of justice.

Oscar, who was in detention since May 11, told me he met people who had been there six months before they even had a hearing, and he couldn't bear that.

I asked Oscar if Cassidy reviewed any possible defenses against deportation with him, as he was appearing pro se. Oscar said no, and added that Cassidy does not provide any opportunity for respondents to address him, "He only talks to you. You don't talk to him."

Once again, this is not what the rules require of immigration judges in cases with pro se respondents. The Immigration Judge Benchbook states:
12. Relief from removal and deportation

a. Examine the respondent to determine what remedies against deportation may be available for him or her
b. What is your age?
c. Are you legally married? If so, what is the citizenship status of your spouse? If your spouse is an American citizen or an immigrant, did he or she file visa petition on your behalf?

Oscar told me he was not asked any of these questions, only instructed on the consequences of his deportation.

The shelter only allows people to stay three days. Along with Oscar's wife and children, his father also lives in the United States and his mother is deceased. Tomorrow Oscar takes a bus to his grandmother's home in Guerrero, Mexico.

Oscar was showing me some of his legal documents and I noticed that on the other side he had made some gorgeous drawings. The one he is holding is of the bars that keep him locked away from his wife, Kimberly, whose name is represented by the K in the center.

UPDATE 6-26-09: I will write more about the circumstances of Oscar's detention after I learn more because it is possible that the police acted unlawfully.

U.S. Citizen Obtains His "Alien" File: Record of Government Misconduct

Today Mark Lyttle, 31, a U.S. citizen who was kidnapped and rendered stateless by numerous government agencies as part of his illegal deportation to Mexico, obtained a copy of his file from the Atlanta Immigration Court. (See Atlanta Immigration Court for background.)

Mark's file includes many of the documents from Immigration and Customs Enforcement (ICE) that resulted in his deportation. During our time together in the last couple of days Mark also shed new light on the ignorant, racist, bureaucrats who did this to him, as well as his experience abroad. He walked about 200 miles in El Salvador, drinking leftover sodas on the roadside because he remembered his brother in the army told him how important it was to stay hydrated.

Mark is very resourceful about certain things and much less so about others. He's also very open and thoughtful. It's been fun hanging out with him.

HIGHLIGHTS FROM MARK'S "ALIEN" FILE AND CONVERSATIONS
1) Mark thinks that his problems started at the Neuse (pronounced NOOSE) Correctional Institute in Goldsboro, North Carolina at the end of August, 2008,when he met with a social worker doing a standard intake diagnostic interview. Mark said, "She said, 'We're curious about the name 'José' because it's a Hispanic name." Mark said she had said something in the computer attributed this name to his father. Mark's adoptive father's name was Thomas Lyttle, now deceased, and Mark's biological father's name is equally Anglo-sounding and remote from "José."

Mark replied, "My name is Mark Daniel Lyttle. I don't have a Hispanic name." The social worker told him, "'We're going to check that out. We're going to contact Homeland Security.' I said, 'Go ahead. I'm going to contact my family so I can protect myself and make sure precautions are taken.'" He said he was puzzled because, "They had my social security number; that's the second time I was there. They didn't do that the first time I was there, five months prior."

(As far as I understand, Mark's criminal record, including the two violations Immigration Judge-For-Now William Cassidy, see previous posts, mentions in his deportation order, all stem from his time in mental institutions and halfway homes. His mother, Jeanne Lyttle, a health care professional, told me that the staff would secretly tell her that the employees would regularly provoke Mark and other patients. After the patients physically responded, the staff would press criminal charges.)

The social worker at Neuse asked Mark to sign a document. Mark refused and she said that his signature was not needed for the referral to ICE. Shortly after that he was interviewed by the ICE agent who told him his name was "Jose Thomas" (sic).

Mark's family had moved outside the state since he was incarcerated; he couldn't find them and they couldn't find him.

2) Mark's Notice to Appear was issued on November 5, 2008, two days after Mark had signed a sworn statement that he was a U.S. citizen. The Notice to Appear states, "you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General." There is no evidence provided to substantiate the allegation, just the charge.

The form also states that he is deportable because of criminal convictions.

It was signed by Tracy Moten at the Stewart Detention Center in Lumpkin, GA, where Mark was held. Moten is a Supervisory Detention & Deportation Officer, and another form indicates she was the examining officer. Mark told everyone he met he was a U.S. citizen, so presumably that includes Moten.

3) A longer document, the "Record of Deportable/Inadmissible Alien" (I213) also was prepared on 11/5/08 and is the document referenced by Cassidy. This document states in capital letters:

"SUBJECT CLAIMS TO HAVE BEEN BORN IN THE UNITED STATES BUT DOES NOT POSSES [SIC] ANY DOCUMENTATION TO SUPPORT HIS CLAIM."

Mark did not have a passport and he did not bring his birth certificate with him to prison. Mark's family had moved since he had been incarcerated. He told everyone in ICE, as well as Cassidy, that his brothers were in the military and they could find them if they tried, a statement that was verified when the U.S. Embassy in Guatemala City located Mark's brother Tommy at Fort Campbell over four months later. It took them 45 minutes, Mark said.

The I213 also states: "Subject claimed during interview questioning that he has a bipolar mental illness condition."

According to ICE's own record, they had in custody a mentally ill individual who claimed to be born in the United States, and the only evidence they had to prove otherwise was a single coerced statement signed by Mark. This occurred in September, 2008, while he was being badgered by the ICE agent in Neuse -- as I reported earlier, Mark was given a statement indicating he was Jose Thomas and told he had to sign it. He signed it: "Mark Daniel Lyttle."

All of the documents in his record are signed either "Mark Lyttle" or "Mark Daniel Lyttle."

4) The I213, which Cassidy used for the deportation, is demonstrably inconsistent. It documents government employees' stupidity and reckless disregard for human dignity. It does not document Mark's alienage.

The author of this bizarre document is David Collado, an ICE Deportation Officer in Atlanta.

-Under Father's Name, Nationality, it says: "Nationality: MEXICO LYTTLE, Thomas" but of course Thomas Lyttle, Mark's adoptive father, was not born in Mexico AND the original document alleging Mark's alienage said his father's name was Jose Thomas.

-Under Mother's Name, Nationality, it says, "Nationality: MEXICO LYTTLE, Jennie." Mark's mother's name is Jeanne; she was born in Ireland; and the original document on which ICE had issued Mark's order of removal stated that Mark's mother's name was "Maria Thomas."

When Jeanne, Mark's mother, read this part of the document, she said, "I laughed. I didn't know I was born in Mexico."

-Under criminal record it says, "None Known" but it also says that his status when found was "IN INSTITUTION" and he was "encountered while incarcerated at Neuse."

-It uses the name "Mark Daniel Lyttle" but the sworn statement of the ICE agent in Neuse from September says his true name is "Jose Thomas" and "Mark Daniel Lyttle" is an alias.

MARK RETURNS TO THE SCENE OF CASSIDY'S CRIME
I was curious about this guy Cassidy who deported at least one U.S. citizen and who was spreading false rumors about Mark and others to his superiors in Washington and the immigration legal community, and so was Mark. We wanted to take a look at him and also see if Mark could identify the translator who could verify Mark's exchange with Cassidy that Cassidy has denied occurred. While we were waiting for Mark's record, I looked at the Atlanta court schedule. Cassidy's schedule was missing. The clerk told me, "He called in sick this morning."

Mark said, "Is the sickness fear? Where's the doctor's report?" Mark said this because the rules for obtaining a copy of an immigration file require advance notice of the Court as to the date on which one would be picking it up.

Mark's letter to Cynthia Long, the Atlanta Court administrator, stated he would be there with me on Monday, June 21, the same morning Cassidy called in sick.

If reporters want to follow up, other names of individuals involved with Marks' case are:

Steven [sp?] Fuller. On the hearing recording for December 9, 2009 Cassidy says, "The government is represented by Steven [sp?] Fuller."

Nicole F. Kelly, Assistant Chief Counsel, filed a "Motion to Rescind and Vacate Final Order" on April 24, 2008 after Mark returned to the U.S. and was arrested by ICE despite possessing a U.S. passport.

Jill Jensen, Assistant Chief Counsel filed "Motion to Terminate Proceedings" on behalf of the Department of Homeland Security on April 28, 2009 stating that "the NTA was improvidently issued."

Both of their motions exclude mention of evidence before Mark's deportation indicating Mark was a U.S. citizen and both motions exclude mention of blatant errors in the charging documents.

The DHS attorneys are in the same building that houses the immigration courts at 180 Spring Street SW.

Judge Sease, also at the Atlanta Immigration Court, used to be an ICE attorney and in that capacity was engaged in ex parte communications with Judge Cassidy about ten years ago that were the subject of a complaint against Cassidy, as noted in a comment on the post below.

Mark's attorney, Neil Rambana, filed a FOIA request for Mark's file and has not received a copy. He also tried to pick one up at the Atlanta Court several weeks ago -- this is noted in the file copy Mark obtained -- and was told the file was not there and they did not know where it was.

Judge Who Deports U.S. Citizen Has Heavy Finger on the Stop Button: Digital Audio Recording of Mark Lyttle's Hearing Has Long Gaps

On December 9, 2008 Immigration Judge-For-Now William Cassidy signed an order deporting Mark Lyttle to Mexico. Mark is a U.S. citizen who was born in the United States, in Salisbury, North Carolina, and who twice informed the judge of this fact. Mark does not speak a word of Spanish.

There are four actions Cassidy has undertaken that go far beyond a moment's poor judgment and that I believe disqualify him holding the title of immigration judge. I have left messages with various staff at the Atlanta Immigration Court requesting an interview with Cassidy and he has not replied, although he has been talking about details of Mark's case with attorneys who do not represent Mark in an effort to gain their sympathy. I believe Cassidy is not talking to me because he knows I cannot be manipulated by him, and not because he is averse to speaking about his hearings to third parties.

1) By Cassidy's own admission, conveyed by colleagues reporting on their conversations with him, Cassidy was aware that Mark was diagnosed as bipolar and that Mark had signed a sworn statement indicating he was born in the United States.

A nationally prominent immigration attorney who deals with Cassidy regularly, and was attempting to excuse Cassidy's actions, sent the following message to a listserve of other immigration attorneys:

I have talked to Cassidy about this case ... The I-213, is written up and says that he and his parents are all born in Mexico, notes he claims to be bipolar, and then notes that he says he was born in South Carolina [sic--Mark was born in North Carolina]."

The attorney then states, "There is nothing on the 4 minute tape in which Little says: "Hey, stop, I am a US Citizen."

The attorney is referring to a portion of a Digital Audio Recording (DAR) produced by immigration judges as an official record of the hearing. The DARs are supposed to be inclusive of the entire hearing unless otherwise indicated. According to the Immigration Court Practice Manual:

The entire hearing is recorded except for those occasions when the Immigration Judge authorizes an off-the-record discussion. On those occasions, the results of the off- the-record discussion are summarized by the Immigration Judge on the record. The Immigration Judge asks the parties if the summary is true and complete, and the parties are given the opportunity to add to or amend the summary, as appropriate. Parties should request such a summary from the Immigration Judge, if the Immigration Judge does not offer one.

According to the 15 minute DAR for the hearing sent to Mark's attorney, Neil Rambana, there is no discussion at all of Mark's U.S. citizenship status. This is damning for Cassidy for two reasons.

THE DOG THAT DIDN'T BARK
The immigration judge benchbook contains extensive instructions for how immigration judges should engage respondents who do not have legal counsel and who have possible citizenship defenses. These include a series of questions that the judge supposed to ask the respondent about his parents, his place of birth, age, and an instruction that those who may be U.S. citizens should be given N600 forms so they may apply for a certificate of U.S. citizenship. Crucially, the judge is instructed to affirmatively explore possible defenses against deportation with pro se respondents: "Examine the respondent to determine what remedies against deportation may be available for him or her."

In short, the DAR silence on Mark's U.S. citizenship status, in light of Cassidy's alleged concession that he understood Mark had submitted a sworn statement that he was born in the United States, means that the DAR demonstrates Cassidy's failure to fulfill his professional responsibilities. Cassidy's own statements to his colleagues suggests that the DAR should have included an extensive exchange between Cassidy and Mark regarding Mark's U.S. citizenship, not silence on this matter.

I'm also not sure how anyone would find a statement that a respondent claims to be bipolar is grounds for supporting a deportation order, and not ordering a psychiatric evaluation and further inquiry into Mark's mental competence regarding his other statements.

In addition, the DAR reveals several other inconsistencies between how Cassidy ran the Master Calendar hearing on December 9, 2008 and how judges who follow the rules run their hearings. These range from him not naming the translator to improperly turning on and off the recording device without summarizing the events "off the record" to reading instructions to the respondents in a voice that is too fast to be properly understood in English, and without allowing time for the translator to translate. You can go through the Master Calendar immigration judge benchbook checklist and compare that with the DAR and most of what's supposed to be there is missing, including the individual interviews with the respondents.


2) The DAR was made in a manner entirely inconsistent with the EOIR rules. It is not a complete record and its omissions are not properly noted. This is evident from the DAR itself. There is at least one point at which it quite obviously goes off and on and picks up in an entirely new sentence with no note made of the stoppage. Moreover, at 15 minutes for 30 respondents, it is far too short to be a complete record.

According to a court watcher who has attended Cassidy's court, this is par for the course: "He does not say whether he's recording or not recording. I know Judge Sease says, 'This is off the record,' and then turns it back it on." The court watcher said it was impossible to tell from watching when the recorder was off or on. Another court watcher told me that Cassidy will say something is off the record but only when he physically leaves the room during a conference between an attorney (who is in the courtroom in Atlanta) and the client (at the Stewart Detention Center). This court watcher did not recall other occasions in which the judge said events were on and off the record.

A hearing for 30 people is going to take much longer than 15 minutes. Either the DAR that was sent to Mark's attorney, Neil Rambana, was not the entire DAR, or, Cassidy only recorded the formal portions at the hearing's beginning roll call and the final formal orders at the end. Both possibilities call into question Cassidy's account of the events that day.

3) Cassidy made statements to the Atlanta immigration legal community and to his superiors at the EOIR about the events in the courtroom the day he deported Mark that are flatly contradicted by Mark and for which Mark produced contemporaneous documentary evidence that supports Mark's account. (The manner in which Cassidy made these statements to his superiors is something I still am not at liberty to reveal, but that will change shortly; at that point I look forward to posting on the evil of banality.)

According to Mark, he told Cassidy he was a U.S. citizen not once, but twice. Mark said that after their names were read, Cassidy interviewed each of the respondents. I asked him how long the exchanges took and he said it depended on whether the respondent was challenging the deportation. None of these exchanges are on the DAR, including TWO in which the respondents had defenses of U.S. citizenship. Mark said,
"One guy was detained for a very long time. I heard his lawyer. She was finding out how long he was detained and Cassidy said, 'Send me whatever you have.' They were basically trying to get him out. They had too many American documents that he was a U.S. citizen." Mark thought this respondent had been in detention for more than two years.

He also told me about another U.S. citizen, "a guy with dreds from Jamaica. He spoke a lot of English." Mark said that ICE lost his paperwork and they had to release him, "He was American."

When it was Mark's turn he felt discouraged and intimidated and in his first statement told Cassidy, "I'm an American. I was born and raised here, but you can deport me if you like." Mark said there were two groups--those who were appealing and those who had agreed to be deported, and that Mark initially agreed to be in the latter group.

However, as he was listening to people talk and the hearing progressed, Mark changed his mind and told a guard he had something else to say, "I need to speak to the judge." The guard told him to wait until everybody was done.

I asked for more details on how the guard did this and Mark said there was a "very low door" and that "the guard had to go up to the judge on the TV, and he said I had another comment to make." That's when Mark told Cassidy the narrative about his U.S. citizenship I reported on previous occasions. Mark said that Cassidy told him he had to "go by the statement of a sworn ICE agent." Mark asked to see a copy of what the judge was examining and was upset that this did not occur.

Mark had never been in an immigration court before the day he met Cassidy and would be incapable of inventing the detailed narrative he gave me; also, as opposed to Cassidy, Mark has no incentive to lie since ICE had noted Mark's claims to U.S. citizenship and some government agency, be it ICE, the prison, Stewart, and the immigration judge, was responsible for investigating their validity, even if Mark didn't say a word that day.

Finally, Mark filed written grievances on ICE forms against Cassidy at the time of the deportation order and in the subsequent days before he was sent to Mexico, because Cassidy never sent Mark the paperwork he promised he would. These grievances should be at the Stewart Detention Center and hopefully Mark and his attorneys will obtain them and this will further substantiate his narrative.

4) Well there is a number four and it's a doozy, so stay tuned. Hopefully by the time that is resolved Cassidy will be profusely apologizing to Mark and the immigration law community in Atlanta.


WHAT DOES EOIR HAVE TO SAY ABOUT THE JUDGE WHO DEPORTED A MAN WHO WAS BORN IN NORTH CAROLINA?

EOIR Counsel for Legislative and Public Affairs Fatimah Mateen told me Monday that "someone" whose name she could not recall decided EOIR could not comment on Lyttle's case and that she would consult her notes in order to tell me who this was; she never did tell me this, but I learned today that "someone" was in fact Mateen herself.

EOIR's Mateen's obfuscation on this and other matters is a funny echo chamber of Cassidy's own efforts to avoid transparency, accountability, and to shift responsibility elsewhere. Agency staff lead by example and the EOIR Counsel has set a tone Cassidy and others seem happy to follow.

DOJ Public Affairs Officer Charles Miller, who is obtaining his information from Mateen and EOIR's Public Affairs Officer Elaine Komis, told me that they were not commenting on Cassidy's conduct because of "privacy concerns" for Mark Lyttle, which of course makes no sense.

One needs to have no information whatsoever about Mark to be instructed on whether the EOIR believes that Cassidy recorded the hearing properly, was being disciplined for deporting a U.S. citizen, or to learn the extent of complaints against immigration judges for not recording their hearings-- all of which were questions on which Miller at the DOJ, at the behest of Mateen, would not comment.

UPDATE JUNE 16, 2009: Please see comment submitted by reader on previous misconduct by Cassidy.

EOIR Hiding File for US Citizen Deported by Immigration Judge William Cassidy

On December 9, 2008, Immigration Judge William Cassidy wrongfully deported a man born in North Carolina. He ignored Mark Lyttle's signed and sworn statement that he was a U.S. citizen and his name was Mark Daniel Lyttle. Instead, Judge Cassidy believed an Immigration and Customs Enforcement (ICE) agent's baseless allegation that the man before him was really Jose Thomas, a name that I believe was invented by an ICE agent in North Carolina.

Neil Rambana, based in Tallahassee, is Lyttle's attorney. Yesterday he thought he would take advantage of a trip to the Atlanta immigration courts on behalf of another client and examine Lyttle's "alien" files. (Lyttle is a U.S. citizen, so this nomenclature for his records is an oxymoron.) Lyttle and anyone else in deportation proceedings has two files, one maintained by ICE and another by the Executive Office of Immigration Review.

Federal rules and regulations require EOIR and ICE to give Rambana access to these files. But agencies that deport U.S. citizens may not be so careful or even honest in complying with the law.

Rambana told me that at 10 a.m. yesterday he submitted the form Lyttle signed indicating that Rambana was his attorney. Rambana asked to see Lyttle's file and was rebuffed, "The clerk, Garrett, checked the database and said, 'This file is at the BIA [Bureau of Immigration Appeals].'" Rambana walked away for a moment to think, then returned and said, "There really is no reason for it to be at the BIA. Can you inquire further? I'm perplexed." Elaine Komis, spokesperson for EOIR, and Barbara Gonzalez, spokesperson for ICE both state they show nothing indicating an appeal of Judge Cassidy's April 27, 2009 decision rescinding his 2008 deportation order.

Because the appeal period is 30 days, the case is considered open and the EOIR file should be in Atlanta, as files are held in the courts where the last hearing occurred. Gonzalez confirmed that Lyttle's ICE file is in Atlanta. Rambana said the clerk had no further information, and "no one seemed to know where it was" beyond the unverified record indicating its presence with the BIA. [UPDATE: Rambana's hunch was confirmed. Komis wrote today: "If a case is ongoing at an immigration court, the case file would be at the immigration court."]

The clerk took Rambana's phone number and said he would call once he learned where the file was being held. Over 24 hours later, Rambana has not been notified about the whereabouts of Lyttle's EOIR file. When I called EOIR to ask about this, Komis told me I needed to file a FOIA. A FOIA for learning a file's LOCATION???

(I sent Komis a copy of the ICE waiver Lyttle signed and said that if that were not sufficient to answer questions about the file's location, he could sign another specific to the EOIR; she told me without further explanation that a waiver was not sufficient and I would have to file a FOIA.)

The EOIR is under the jurisdiction of the Department of Justice, run by self-proclaimed Mr. Transparency, Attorney General Eric Holder. This action is another signal that when it comes to the EOIR the Obama administration is more hype than hope.

I asked for the legal justification of requiring a FOIA for information about a file's location, and not its contents, especially since, as I explained to Komis, one needs to know the file's location before filing a FOIA. It may be somewhere in the EOIR, or it may be somewhere else entirely. If it's supposed to be in Atlanta and isn't there, then why believe it's even with the EOIR at all? I am awaiting a response and will update this post if and when that is received. [5/13 UPDATE: This is the response-- "Persons who are not a party to a proceeding before the immigration court must file a FOIA request to access information related to an individual’s record." This is of course not a response to my question about how to file the FOIA if one doesn't know where the file is located.]

Rambana next went to visit the ICE attorneys' office, to see if he could review their file on Mark. He was again rebuffed, "No one would talk to me." They told him he needed to make an advance appointment. "I was most frustrated they would impose that limitation. People travel from all over the country and you cannot expect people to make an appointment and come back with people who don't live in your area. I'm very disturbed by that."

Dan Kowalski, Austin immigration attorney and an expert on immigration court procedures said, "If he has a signed G-28 [the form Rambana presented to the immigration court clerk] he has the right to see the file." [UPDATE 5/13: EOIR Spokesperson Komis wrote today stating: "The Freedom of Information Act authorizes access to an alien’s record," but this is incorrect. Kowalski pointed me to the Immigration Court Practice Manual 12.2: "(A)Inspecting the record. — Parties to an Immigration Court proceeding, and their legal representatives, may inspect the official record of proceedings by prior arrangement with Immigration Court staff. A FOIA request is not required."

Oops.]

The same holds for Rambana's right to have access to his client's ICE records.

Kowalski referred me to 8 CFR 292.4 (b):

Availability of records. During the time a case is pending, and except as otherwise provided in §103.2(b) of this chapter, a party to a proceeding or his attorney or representative shall be permitted to examine the record of proceeding in a Service office. He may, in conformity with §103.10 of this chapter, obtain copies of Service records or information therefrom and copies of documents or transcripts of evidence furnished by him. Upon request, he may in addition, be loaned a copy of the testimony and exhibits contained in the record of proceeding upon giving his receipt for such copies and pledging that it will be surrendered upon final disposition of the case or upon demand. If extra copies of exhibits do not exist, they shall not be furnished free on loan; however, they shall be made available for copying or purchase of copies as provided in §103.10 of this chapter.

Cynthia Long, Atlanta Immigration Court Supervisor referred my question about the file location to the Public Affairs office in Washington, DC. I told her I was not interested in the file contents, only its location, and that the attorney had not been able to learn this. Her response was not comforting: "Once they locate it, they will contact that person. If the file is here." Meaning what? If EOIR throws the file away is Rambana not notified? If they hide it behind a file cabinet? What if they send the file to Mexico?

Rambana is resisting conspiracy theories but still wonders, "Why are they hiding this file? What's going on? Everything is already on the table. If anything it's to their advantage to make sure that nothing is misinterpreted or miscommunicated, because it will all be there in the file."

[UPDATE, 5/15/09: There has been a new, disturbing twist to the saga of EOIR's actions concerning the deportation of Mark Lyttle that may account for, but not excuse, the EOIR file's absence from the Atlanta court house. (Sorry to be mysterious for now, but within two weeks I can explain.) In the event, if any government agency wants to review an open case file, then it needs to make a copy, not remove the file from its proper place, especially without notifying the attorney. Rambana still has not been contacted by anyone in Atlanta, the BIA, or the EOIR with information on the file's location. The ICE file on Lyttle is in Atlanta and the ICE attorneys have no excuse for not showing this to Rambana when he was there.]

[UPDATE, 5/15/09, I received the following message from Elaine Komis at EOIR:

"Jackie,

EOIR regrets the misunderstanding. When you asked whether there is "a regulation/rule that authorizes attorney access to EOIR's alien files," EOIR's response was "the Freedom of Information Act authorizes access to an alien's record" because your question referred to attorneys, not attorneys of record.

EOIR's subsequent response to you clarified that according to Chapter 12.2 of EOIR's Immigration Court Practice Manual, "Parties to an immigration court proceeding, and their legal representatives, may inspect the official record of proceedings by prior arrangement with immigration court staff. A FOIA request is not required."

Please refer any additional questions to the Department of Justice's Public Affairs Office at (202) 514-2007.

Elaine"

I had thought that the context of my phone call and email inquiry --asking why Rambana was not allowed to see his client's file maintained by the EOIR -- was sufficiently clear but apparently I was not specific enough.

UPDATE, 5/19/09: Received an email today from Neil Rambana indicating that the digital recording arrived in yesterday's mail. There is a related and pending matter that prevents me from saying more at this point but there is a lot more information forthcoming and it reflects extremely poorly on Mr. William Cassidy and the EOIR.

Houston ICE Attorney Calls Due Process for U.S. Citizen "Idiotic" - Seeks Reinstatement of Removal of Texas Mother

[5/13/09: Cerna's relatives just located her parents' marriage certificate at a town hall in Nuevo Laredo, MX; this helps prove her U.S. citizenship. Meanwhile, Cerna is threatened with detention at any moment.]
The Immigration and Customs Enforcement agency (ICE) owes another apology to a probable U.S. citizen, Julia Cerna, 42, whose due process rights and physical security ICE Assistant Chief Counsel Tracy Hamby jeopardized Wednesday, May 6, 2009 in a Houston immigration court.

ICE in Washington, D.C. had been working with Cerna to protect her from ICE custody as she was documenting her claim to U.S. citizenship, but Hamby apparently found this offensive and made an end-run around Cerna's Constitutional rights and the interests of justice.

Here's an excerpt from a message Cerna's immigration attorney in Houston, Amy Tehauno, sent Thursday morning to an ICE public affairs spokesperson and copied to me, describing the events in the immigration court Wednesday:

At the first Master Calendar hearing in Houston before Judge Clarease Rankin-Yates yesterday, ICE Assistant Chief Counsel Mr. Tracy Hamby appeared for the government. He immediately moved to terminate the proceedings, which was unopposed by the Respondent as we believed that it was appropriate to permit Mrs. Cerna to apply for her Certificate of Citizenship and U.S. passport administratively/affirmatively. Mr. Hamby's words were something to the effect that the Immigration Court was an inappropriate forum to make a citizenship claim, a statement with which I agree.

However, Mr. Hamby then indicated that he intends to send the file to Detention and Removal to act on the old expedited removal/order reinstatement, and recommended that we file the N-600 [application for a Certificate of Citizenship] as soon as possible so that it will be on file when, presumably, my client is detained again.

I believe that the exact description Mr. Hamby gave in court of the actions of ICE in attempting to accord Mrs. Cerna all due process of law in presenting her U.S. citizenship as a defense to removal (an opportunity that she was not previously afforded) was "idiotic." Mr. Hamby did not consult with his office in moving to terminate and taking on this decision.

Hamby did not reply to two voice mail messages requesting comment on this incident in immigration court, part of a public hearing.

Hamby understood that an ICE trial attorney and immigration judge in Oakdale, Louisiana had allowed Cerna to be released on $5,000 bail while she was tracking down the documents for proving her U.S. citizenship and thought this idiotic. Exercising legal discretion over a possibly unlawful action -- ICE arrest or deportation of a U.S. citizen -- Hamby terminated the hearing only to reinstate an earlier expedited removal order issued in 2000 by a border officer (not a judge), issued when Cerna did not know her father's birth in Alice, Texas established grounds for her being a U.S. citizen and signed a statement that she was not a U.S. citizen. ICE interview notes also indicate she stated her father was born in Alice, Texas. The agent should have informed Cerna of this being grounds for investigating a claim to U.S. citizenship.

Before Cerna has an opportunity to document her citizenship, Hamby is authorizing ICE to come to her home, arrest her, and stick her back into a detention center. (Tehauno explained that they have a number of documents but need time for further research of records from the 1940s to 1960s before submitting the application.)

Cerna is fortunate because Tehauno has enlisted the support of a graduate student in history to find the necessary documents, but Tehauno is concerned more generally about acquired and derived citizenship cases for U.S. citizens who are poor and do not have access to an attorney or investigator.

BACKGROUND
Julia Cerna, 42, is raising two teenage sons in Magnolia, Texas, a suburb of Houston where she's lived for 20 years. She also has two daughters, in their twenties, one of whom had to take charge of the household while her mother was in detention last year. According to Tehauno, who is representing Cerna for a low fee to be paid after the bail is returned, Cerna has no criminal convictions. The only reason she is about to be deported is that she lives in a country in which citizenship rules are complicated and ideas of what counts as "U.S.-American" racialized as White, so that sometimes people born U.S. citizens abroad do not know they are U.S. citizens.

For instance, someone called me yesterday who applied for a U.S. Certificate of Citizenship in 2007 only because he had a friend from Europe whose parent was born in the U.S. and was applying for a Certificate of Citizenship. Because the man who called yesterday was of Mexican descent and lives in a country where the political if not legal message is that real U.S. citizens can never be born in Mexico, it never even occurred to him that he was a U.S. citizen at birth.

Legally, however, U.S. citizenship is predicated on meeting the criteria for U.S. citizenship, not encyclopedic knowledge of citizenship laws that even trained border agents and ICE attorneys do not understand.

Out of frustration that her client who might well be a U.S. citizen was in ICE custody, Tehauno said she "pulled an email address for an ICE press person giving quotes to press saying 'We don't deport U.S. citizens. She [Ernestine Fobbs, ICE public affairs] was great. She called me within an hour and I explained the situation to her."

ICE sent two agents to interview Cerna in an Alabama prison. Cerna was transferred to Oakdale, Louisiana where an immigration judge bonded her out of detention for $5,000, changed the venue for the hearing to Houston, near Cerna's home, and the ICE trial attorney waived appeal. These decisions are a good indication that they believed Cerna had a viable claim to U.S. citizenship and did not want a U.S. citizen in an ICE detention center.

But then came yesterday's hearing. Tehauno concluded this morning's message to Ernestine Fobbs, ICE Public Affairs, as follows:

I truly appreciate your assistance, and the considered and thoughtful actions of ICE in Alabama and ICE Assistant Chief Counsel in Oakdale, Louisiana. All of the actions from your office and agency through yesterday indicated a genuine concern that our government take every precaution not to deport U.S. citizens, as continues to occur in cases such as that of Mark Lyttle. However, Mr. Hamby's intended course of action indicates a lack of consistency within the agency in that regard. We will not oppose a motion to reopen the proceedings before Judge Rankin-Yates, should ICE Assistant Chief Counsel in Houston prefer to handle this through the immigration courts. Thank you again for any assistance that you may be able to render.

Fobbs has not replied to Tehauno's email message about Hamby's action undermining the decisions of the immigration judge and ICE Assistant Chief Counsel in Oakdale, or to phone or email messages from me.

Tehauno said: "There should be onus on the government to make sure that people are not citizens of the country. Before they deport people and ruin their lives and lock them up in prison they should absolutely know they're not citizens." Tehauno was disturbed by the harsh and arbitrary consequences of the discretion given to ICE attorneys, "It's happening a lot and there's no one in the government accountable. There 's no coherent government program, and then a case lands on the desk of someone" who characterizes due process rights as idiotic. (Well, that last phrase is a loose paraphrase of what Tehauno said...)

Customs and Border Protection Destroys Birth Certificates of Mexican-American U.S.-born Teenage Boys

Here are descriptions of two previously unpublished accounts of U.S.-born Mexican-American teenagers who had their birth certificates ripped up by Customs and Border Patrol agents. I have information on other similar cases, but only time to write up the details of these two, along with summaries and links to two other recent cases published elsewhere.

Just to be clear, a national identity card doesn't solve these problems: in many cases of U.S. citizens deported ICE or Customs and Border Protection doesn't even check the digital files that have evidence matching the identity cards presented by the individual with the information in their databases-- as was the case at several points for Mark Lyttle. If no one bothers to check that a passport (or national identity card) matches the information in a law enforcement database-- as should happen when a U.S. citizen objects to having his proper identity disregarded by an agent or an immigration judge -- then having a national card does nothing and is no improvement over our current system.

Mexican-Americans with Birth Certificates Border Patrol Destroys or Ignores
Case 1. Mario, 17, was born in a Colorado hospital in the late 1980s and I've seen his birth certificate and hospital records.

Mario's mother is a U.S. citizen and his father Mexican. When Mario was a toddler his father and mother separated and Mario's father brought him to Mexico. His father's plan was to raise Mario, and then he would return to the United States. When Mario was 17 he decided it was time to "go back to the United States and claim his destiny," according to an individual familiar with this case. Mario had uncles in Tucson who visited Mario frequently in Mexico. He was especially interested in finding his mother. A birth certificate is a valid form of identification for entering the United States, and Mario thought he was all set. (Mario couldn't obtain a U.S. passport from Mexico because if you're 17 or under, that requires the presence of both legal parents.)

In early 2007, when Mario tried to return through Nogales, Arizona the Customs and Border Patrol agent, the attorney said, "tore it up on the spot. They told him, 'It's not real. Go away, kid, this is fraud.' There goes your Colorado birth certificate. Go away, have a nice day." Mario was upset and insisted he was a U.S. citizen. "They told him that if he says he's Mexican he can leave, but if he keeps saying he's a citizen he'll be detained at the Nogales border patrol station and arrested." He signed and returned to Mexico.

Because of worries about identity theft he was not able to send for another copy of his birth certificate. In May 2007, Mario decided to take his chances by crossing without inspection and was apprehended by the Nogales Border Patrol. He made a sworn statement that he's a U.S. citizen and is taken into detention for deportation proceedings, where he can make his case before a judge. Mario, the attorney said, "denied he was a Mexican alien, but they whipped this thing out," according to the attorney, and said, "You said you were a Mexican. Here's the proof. You were removed as a Mexican."

The Immigration Judge says the initial sworn statement of Mexican citizenship is sufficient to shift the burden onto Mario to prove he really is a U.S. citizen. Even granting the absurdity of a Mario's coerced statement being used against him, Mario met that burden. His file includes Medicaid records of his birth and infant care, a copy of the birth certificate, and the Colorado hospital records, including the Apgar test (taken one minute and five minutes after birth). The attorney continued, "The judge says, 'The records don't show he was born at the hospital. The records only show he was treated at the hospital." Oh, and Mario had obtained a childhood photo from his uncles in Tucson, from when they visited Mario in Mexico, in which Mario's about 8 and holding THE SAME BIRTH CERTIFICATE in his file. (The family had the photo enlarged and it's very clear.)

The attorney also pointed out that the entire proceeding was improper because ICE never conducted an initial interview or investigation of his claim to U.S. citizenship, as required by the deportation and removal regulations, but, the attorney said, "They didn't do that. They just NTA'd him." (A Notice to Appear is a charging document that requires an interview by an ICE agent.)

Mario signed the removal order and is going to try to obtain a passport or file for a from Mexico, but it's not going to be easy because a passport requires U.S. photo identification and other documents that someone in Mexico cannot obtain. Also, the form for filing for U.S. Certificates of Citizenship (N-600) states it is for people born abroad, the premise being that if you have a U.S. birth certificate that is proof of citizenship.

Case 2.
An attorney who works for a federal defender's office told me about Ricardo, 16, who was living in Phoenix and drove to Nogales so he could drink. (These events transpired roughly between 2002-2006.) On returning to the United States, Ricardo presented his Los Angeles County birth certificate and Arizona driver's license. The attorney said "The border patrol agent kept trying to get him to admit he was Mexican and it was a fake certificate: 'You're a punk, you're stupid, and I'm going to do you a favor,' and the border patrol rips up Ricardo's birth certificate." The agent tells Ricardo that he saved him from a charge of presenting false documents and says that if Ricardo doesn't sign a statement saying he's Mexican, then he's going to prison for a year. Ricardo signed."

I asked the attorney why Ricardo signed the false statement, although the absence of an attorney and being a minor are already grounds for concern. He replied, "Nobody believes you, and they browbeat you, 'Stop lying, you're just making it worse.'" Ricardo went to court but didn't say anything. I asked why he didn't explain his situation to the immigration judge and the attorney, who had watched a video tape of the hearing told me, "A lot of these judges don't listen to shit anybody says. This judge never even looked up from the paper." (Incidentally, Ricardo didn't miscalculate: Mark Lyttle told the judge he was U.S. citizen and was still deported.)

Ricardo, born in Los Angeles, was deported twice, each time signing a statement that he was a Mexican national. The attorney said, "It was the path of least resistance. The third time he was looking at six months to a year so he said, 'That's crazy. I'm a U.S.. citizen.' And they say, you're not a U.S. citizen, asshole, you've been deported a couple of times." That's when the attorney's brought in, to defend Ricardo against the charge of Illegal Re-entry. The attorney introduces Ricardo's birth certificate as evidence and the prosecutor moves to dismiss the charge, but then the attorney paraphrase the prosecutor's next statement, "Don't think I'm being a nice guy. He's still guilty of Illegal Entry, anyone entering without inspection." (Ricardo was found not guilty.)

Case 3.
The following is from an ACLU-Southern California Press Release, issued on October 29, 2008:

“If ever there was evidence of the fundamental flaws in our immigration system, it is the fact that a U.S. citizen was deported twice and denied entry into the United States on numerous occasions without any due process of law,” said Jennie Pasquarella, staff attorney for the ACLU/SC. “ICE officials repeatedly ignored his certified birth certificate, which they could easily have corroborated, and instead simply refused to believe him. It is inconceivable that this would have happened were he not Latino.”

Olivares was born in the Los Angeles area, and had never lived outside the United States until he was forced to live in Mexico after ICE deported him in 2007 and refused to allow him to re-enter. But his ordeal began in 2000, when border agents questioned the veracity of his birth certificate and whether it belonged to him when he was returning into the United States at the Tijuana border crossing. The agents refused to let him enter his own country. A week later, however, Olivares’ mother met him at the border crossing with a certified copy of his birth certificate, and Olivares and his mother re-entered the United States without incident.

In 2007, while Olivares was serving time in state prison, agents from the Department of Homeland Security approached him and told him he was a Mexican citizen and would be deported. Olivares insisted that he was a U.S. citizen, but eventually – not fully understanding his rights as an American citizen – he was coerced into signing papers that were never explained to him and was deported to Mexico.

He then attempted to cross back into the United States, but border guards refused to let him enter. He felt he had no choice other than to live for a time with his mother’s family in Jalisco. But in June 2008, upon learning that his father in Los Angeles was gravely ill, Olivares again tried to cross the border legally, presenting a certified copy of his birth certificate. After being rebuffed, he crossed illegally, but was picked up by the U.S. Border Patrol. On September 2, 2008, he was deported for a second time to Mexico, on the day his father died.

In September, Olivares – accompanied by his mother -- tried yet again to re-enter the United States legally from Tijuana. Once again, immigration officials rejected his birth certificate. However, this time he refused to sign his name to the papers foisted upon him and demanded to see a judge. As a result, ICE put Olivares in removal proceedings and detained him at the Otay Mesa Immigration Detention facility in San Diego. The family then contacted the Coalition for Human Immigrants’ Rights of Los Angeles, which in turn contacted the ACLU/SC. On October 9, ACLU/SC staff attorney Jennie Pasquarella advised ICE that it had no authority to detain Olivares because he was a U.S. citizen, and presented his birth certificate and other documentation demonstrating his citizenship. He was released later that day.

“There’s something fundamentally wrong with the system if border guards can effectively deprive you of your citizenship by simply disregarding a valid birth certificate,” said Pasquarella. “ICE officials obviously used race and ethnicity as a basis for enforcing our nation’s immigration laws, rather than taking a few minutes to verify Mr. Olivares’ legal status.”

Case 4.
In a detailed article by Sandra Hernanez appearing in the Los Angeles Daily Journal on December 31, 2008 Jose Ledesma, who estimates he was deported about 15 times despite presenting a U.S. birth certificate, says,

"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.
"I think I might have gotten out a lot faster if I'd had a lawyer," Ledesma said. "I know my rights, but in court you don't really understand all the legal stuff or they just don't believe you."

This does seem to be a pattern: when the media focus attention on cases ICE responds but absent that attention even attorneys have a problem receiving due process protections for their clients.

Another interesting point Ledesma mentions is that during his hearing before an immigration judge, when Ledesma brings up his claim to U.S. citizenship, the judge "turned off the tape recorder and began talking to the government attorney and then turned it back on and told me I had 15 days to provide facts to show I was a citizen."

So the immigration courts won't let people in (see earlier postings tagged EOIR) and immigration judges are having secret exchanges with the government attorneys?!

Wow.

How many cases of U.S. citizens deported or detained, how many outrageous illegal actions by ICE, Customs and Border Protection, and the immigration judges before we stop spending money on sending out people because of the accidents of borders and birth--and the inherent inability to get this stuff right in programs run by dumb Americans--and start spending that money on health care, education, transportation and other real needs? (Spending billions of dollars because of an unfounded anxiety that open borders cost money is as rational as buying a $1 billion safe to protect a dime store flag.)

The attorney who told me about Ricardo said, "This cat and mouse shit hurts people, it gets people killed, it teaches agents to treat people like animals." He described a chat site popular with border agents that refers to immigrants as "tonks." He asked a CPB agent what that meant and was told, "'That's the sound it make when you hit someone over the head with an aluminum flashlight. Aluminum's flexible and the hair covers the injury.' That's a culture created by a cat and mouse chase game. Who loses? In Tucson, I watch kids getting picked up at a downtown bus center by border patrol and hauled off, kids I doubt were illegal."

We know that border enforcement is systematically hurting people innocent by law and common sense; we know that it is costing billions of dollars; and we have no evidence that free movement harms rather than helps the overall economy. And we know that ending border restrictions will increase household and family stability.

Our country is in the grip of a profound borderline personality disorder. The psychotic effort to separate an idealized U.S.-American "good" citizen from the racialized "bad" Mexican is no different, legally, from the 1933 Nuremburg laws, where officials held similar debates about where to draw the arbirary line of Jewish/German ancestry to make sure that Germans wouldn't be deported. The Nazis had to decide on degrees of descent, not to punish Germans who happened to have a Jewish ... great-great grand parent, great-grandparent, grandparent, parent. How to know when one is wrongfully punishing good Germans and not appropriately deporting bad Jews? This particular Nazi legal question is exactly the same as the ones being asked every day in U.S. immigration courts. Are you a real U.S. natural-born citizen if you only have documents showing your father worked here 9 years after 1950? 10 years? If your mother was born in the United States but not your father? If your father's name does not appear on your birth certificate? If you don't have money for an attorney and private investigator to track down documents?

A sane people does not ask this question.

Fortunately, there are many people who are rational, compassionate adults and understand this. The nonprofit attorneys who spend their time in low-paying positions with impossible caseloads, the private immigration attorneys who take tricky pro bono cases, the government employees who are speaking up when they can, the journalists who take patience to describe complicated cases and not just shocking are doing amazing work and deserve as much attention as the trouble caused by our government. It is important to know about government mischief but it is a mistake, one I am guilty of, to be preoccupied by this to the exclusion of the good work done by so many, one for which I will be making amends here. Stay tuned...

Thanks to Dan Kowalski, Austin immigration attorney, for some useful information on the procedures and terminology.

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Note on image: I realize people have a bad reaction to Nazi allusions. I'm not referring to death camps but the publicly announced deportations preceding 1941 using classifications for determining citizenship the same as the ones being used today. (U.S. foreign embassies on their web pages are suggesting applicants bring DNA samples!) The photo above is a German passport for a Jew issued in 1938, and is from a web page on Holocaust research for which I cannot vouch.