Joe Anderson's Attorney to ICE: Read the Rules, Stop Holding Someone With Evidence of U.S. Citizenship

Last week I wrote about Joseph Anderson, someone the U.S. government is trying to deport despite evidence indicating he is a U.S. citizen.

ICE has issued the following statement:

In the immigration proceedings concerning
Joseph Anderson and issues related to his continued
detention, ICE maintains, based upon documentation
and court decisions, that Mr. Anderson is a citizen
of the Philippines and a lawfully admitted permanent
resident of the United States who has forfeited his
residency status due to [criminal convictions for
nonviolent crimes].

Significantly, in October 1977, the U.S. Embassy in
Manila rejected Mr. Anderson's claim to U.S.
citizenship because he was not his U.S. citizen
stepfather Harold Anderson's blood child and
therefore did not have a valid claim at that time.

[Mr. Anderson is not a "blood child"?  What kind
of 21st century government uses the language of a
"blood child"?]

Mr. Anderson was admitted into the United States as
a lawful permanent resident in 1978 as the step-child
of a U.S. citizen.

In November 2003, Mr. Anderson was convicted of Arizona
state felony charges ... [P]ermanent residents guilty
of these crimes are subject to removal from the United
States.  As a result, he came into the custody of U.S.
Immigration and Customs Enforcement when he completed
his sentence in June 2007 in order to be placed in
removal proceedings.

Multiple court decisions by the Executive Office for
Immigration Review and the Board of Immigration
Appeals (BIA) have since found that Mr. Anderson is
not a citizen of the United States and that he should
be removed to the Philippines for his crimes.  Mr.
Anderson has not submitted any probative evidence
that he was legitimated by his step-father, Mr. Harold
Anderson, under federal or state laws following his
admission as a lawful permanent resident in 1978. 
Nevertheless, he will continue to have an
opportunity to do so in upcoming appeal proceedings,
as he has a Petition for Review pending with the
Ninth Circuit Court of Appeals.

Mr. Anderson is a felon ..., thus ICE is statutorily
mandated by the Immigration and Nationality Act to
keep him in detention during his proceedings. 
However, based on 9th Circuit precedent decisions, he
was entitled to and has received a bond redetermination
hearing, at which an immigration judge ordered his
release upon the payment of a $10,000 bond. He has
failed to post that bond, and thus remains in ICE
custody.

Here is the problem with this statement: Mr. Herbert Flores-Torres. Last week I made a mistake and said that ICE held him, a U.S. citizen, without authority for three years.

In fact, ICE locked up Mr. Flores without authority from June, 2005 until December, 2009, four and a half years. (There are many other cases like this I've encountered in my research; space does not permit their discussion here.)

Mr. Flores suffered through the same legal nightmare and ICE custody as Mr. Anderson--including several negative decisions on his U.S. citizenship claim by an immigration judge (hereafter, EOIR attorney) and the Board of Immigration Appeals. But he eventually won.

To ward against this ICE has come up with a new policy: the government may issue deportation orders and require hearings in an immigration court, but ICE may not keep people in custody who provide evidence of U.S. citizenship. The memorandum says, "In all cases, any uncertainty about whether the evidence is probative of U.S. citizenship should weigh against detention."

Regardless of the ultimate determination of Mr. Anderson's citizenship, Kari Hong, Mr. Anderson's attorney, thinks it's time for ICE to start following its own rules and release her client immediately: "The policy allows the immigration proceedings to continue but with him to be out of custody. This seems a reasonable regulation. It ensures you do not have a U.S. citizen detained. ICE appears to be in violation of its own regulation."

Although finding against Mr. Anderson on the merits of his claim, the Board of Immigration Appeals found evidence on his side and wrote, "We agree there is some support for his argument" claiming U.S. citizenship.

That this position has been rejected means little as far the final disposition of Mr. Anderson's citizenship claims. Mr. Flores is a U.S. citizen and the BIA ruled against him as well. However, it's hard to understand how the government can maintain it has certainty that Mr. Anderson lacks any evidence of citizenship when the BIA says it found "some support for his argument."

Moreover, the government is in no position to assert its certainty about Mr. Anderson's evidence when they were demonstrably wrong about similar claims they made in the case of Mr. Flores, and when the EOIR has had so many of its decisions reversed by the federal courts. One federal decision went so far as to publicly ridicule the EOIR:

This tension between judicial and administrative adjudicators is not due to judicial hostility to the nation's immigration policies or to a misconception of the proper standard of judicial review of administrative decisions. It is due to the fact that the adjudication of these cases at the administrative level has fallen below the minimum standards of legal justice. Whether this is due to resource constraints or to other circumstances beyond the Board's and the Immigration Court's control, we do not know, though we note that the problem is not of recent origin. All that is clear is that it cannot be in the interest of the immigration authorities, the taxpayer, the federal judiciary, or citizens concerned with the effective enforcement of the nation's immigration laws for removal orders to be routinely nullified by the courts, and that the power of correction lies in the Department of Homeland Security, which prosecutes removal cases, and the Department of Justice, which adjudicates them in its Immigration Court and Board of Immigration Appeals. Benslimane v. Gonzales, 430 F.3d 829 (2005).

In Mr. Flores's case the district court judge's opinion on his case was a lengthy and nuanced evaluation of family law in California and El Salvador, a model of textual exegesis that bears no relation to the poorly reasoned opinions produced by the EOIR. For instance, Mr. Anderson is a citizen if Harold Anderson, Jr. is considered to have legitimated Joseph in his residence or domicile, as well as Joseph's place of birth. Under California law during this period, Harold Jr. appears to be Joseph's presumptive father, but the Board only considered paternity laws in the Philippines.

In his second Motion to Reconsider, Mr. Anderson's appeal conveyed frustration with the Board's failure to consider the law and legal analysis:

In its decision, this Board stated, ‘Insofar as the respondent was born in the Philippines, we must look to that jurisdiction’s laws to determine whether he has been legitimated.’ BIA dec. at 2. The decision offered no explanation as to why the place of birth controls for purposes of legitimation. [Note:] Several paragraphs before the discussion of legitimation, the decision states that the ‘applicable law for transmitting citizenship’ is the ‘law in effect on the child’s birth date.’ BIA Dec.at 2. While this Board’s decision may be implying that the relevant law is also the law in effect at the place and time of the child’s birth, case law only supports the interpretation that the date of the child’s birth is controlling for purposes of determining the law under which citizenship, not legitimacy, will be determined. Furthermore, the idea that the applicable law of legitimacy is the law in effect at the place and time of birth is at odds with the plain language of the statute...

No wonder the federal courts have to intervene.

This is not to say the federal courts always get it right. Two recent opinions in the Ninth Circuit misread U.S. citizenship law and misstate the history of kinship rules in world history, including the United States. Martinez-Madera v. Holder, 599 F.3d 947 (2009) and U.S. v. Marguet-Pillado, 560 F.3d 1078 (2009) assume that families are based on "blood," not law.

Here's what the opinion states in Marguet-Pillado:

It is a commonplace that the traditional ways of transmitting and acquiring citizenship at birth are jus soli and jus sanguinis. In this country, the former is provided for by the Constitution, and the latter is provided for by the enactments of Congress. It would be a bit surprising to discover that over the decades Congress had selected a method that relied on neither concept, but, rather, was content to have United States citizenship acquired at birth by a person born out of wedlock, who was not born on United States soil and who, at the time, did not have a natural parent who was a United States citizen. As it is, there is no cause for surprise

The problem with this passage is that citizenship law from 1953-1986 provides for exactly this possibility, by making family ties retroactive to the time of birth. A step-father who marries one's mother becomes one's father under this law.

8 USC §1409(a) defines “child” for purposes of acquired citizenship as an

unmarried person under twenty-one years of age who is—(A) a child born in wedlock; (B) a stepchild, whether or not born out of wedlock, provided the child had not reached the age of eighteen years at the time the marriage creating the status of step child occurred; (C) a child legitimated under the law of the child’s residence or domicile, or under the law of the father’s residence or domicile, whether in or outside the United States, if such legitimation takes place before the child reaches the age of eighteen years and the child is in the legal custody of he legtimating parent or parents at the time of such legitimation; (D) a child born out of wedlock, by, through whom, or on whose behalf a status, privilege, or benefit is sought by virtue of the relationship of the child to its natural mother or to its natural father if the father has or had a bona fide parent-child relationship with the person.

(B) applies not only to the situation the appellate court ridicules, but to Harold Andersons Jr.'s relation to his son, Joseph. Only Officer Anderson was named on Joseph's birth certificate as his father, had married Joseph's mother, and had held him out as his son as long as Joseph knew.

Moreover, the truly absurd statement is that kinship ties have been based on knowledge about paternal genetics. That information was not even available until the late 20th century. This language, and laws about the authority of State Department findings, also explains why the U.S. embassy's ruling against Mr. Anderson's citizenship claim when he was two do not controvert his claim now.

Many other U.S. citizens had been given improper documents at some point indicating they were legal permanent residents. This is evidence of government error, not grounds for deportation.

Complicated legal questions cannot be evaluated by a blog. But if the government says that ICE may not incarcerate anyone who has even the possibility of probative evidence of U.S. citizenship, and Mr. Anderson has grounds for his arguments, then while this is being settled, ICE should not risk punishing Mr. Anderson for its mistakes, as it demonstrably did in the case of Mr. Flores.

Mr. Anderson's family cannot afford the $10,000 bond. The procedures for releasing people with evidence of U.S. citizenship apply to everyone, regardless of any criminal history. Mr. Anderson served his time for a nonviolent crime far less severe than the one his government is perpetrating against him: false imprisonment. It's time for his government to follow the rule of law and release him.

----------------
Thanks to the ACLU, the Nation, the Nation Institute, and Yale Law School's Media Freedom and Information Access Practicum I did go on the tour of the Varick Detention Center on Tuesday. I will be writing about this shortly for The Nation and at more length here as well.

Also, on Sunday, Henry Raines had me on his am radio show in Tampa to talk about States Without Nations, the book. If you want to hear a caller denounce me as a pot smoker (his claim, not mine), listen in...

ACLU Demands Varick Jail Tour for Nation Reporter: ICE Backs Down

Last week I wrote about ICE's long history of denying media requests for tours at its Varick Street jail, including my own requests since November 16, 2009. (The ICE lock-up is on the fourth floor of the federal building at the corner of Varick and Houston, a half block from the Film Forum.)

The facility will be either closing or changing to new management (ICE) on February 27, 2010, depending on the source, but it's not going to be what it is and that's why I had been pressing for ICE to finally and for the first time, allow a press tour.

Yesterday the American Civil Liberties Union and the New York Civil Liberties Union, on behalf of the Nation, the Nation Institute, and me sent a letter to ICE pointing out that its failure to approve any media tours at the Varick Street ICE jail was violating its own procedures as well as the First Amendment.

This morning, I received a note from ICE indicating that my request for a tour had been approved. It's scheduled for Tuesday, February 16.

This is great because it shows that there is some rule of law and that with enough mobilization the government, including ICE, may even follow it.

Thank so much to Lee Gelernt and the ACLU, Udi Ofer of the New York Civil Liberties Union as well as Betsy Reed, my editor at The Nation and Esther Kaplan of the Nation Institute for the thoughtful work that went into putting their imprimaturs on my request. Thanks also to Ben Wyskida at the Nation and Maria Archuleta at the ACLU for figuring out how to make the public aware of ICE's policies.

And thanks also to David Schulz, a media attorney who supervised the diligent efforts of students at the Yale Law School Media Freedom and Information Access Practicum. It's a new practicum, just started this year and two of its founding members, Adrienna Wong and Nabiha Syed, along with a new member Stephen Gikow assembled the underlying information that went into the letter.

I had been pressing the same arguments that appear in the letter for almost three months, but it took the efforts of Yale Law School students and backing from my colleagues at the Nation and the ACLU to make them heard.

ICE Agents Lose Track of US Citizens in their Custody, And the Rules for Releasing Them

On April 9, 2008, when I met Joe Anderson, then 30, through a televideo contraption, he was still in shock.

It had been over three months since ICE locked him up at the Pinal County Jail in southern Arizona while they were disputing his U.S. citizenship and Joe still couldn't believe it. His family lacked funds for an attorney and he was doing his best to represent himself, and also relying on the advice of overstretched attorneys at the Florence Immigrant and Refugee Rights Project, which runs the EOIR's Legal Orientation Program in the area.

In late March, 2009 Joe was still there. Confusion and outrage were replaced by grief and frustration over the senseless deprivation of his liberty and the threat that he would be sent to a country he hadn't seen since infancy and where they spoke a language he couldn't understand.

Joe said he was keeping his eye out for shows on the Travel Channel, in case they had something on restaurants in the Philippines, the country to which his former state governor, Janet Napolitano, is trying to ship him. He was thinking it might be good to know about fancy tourist restaurants that might need a native English-speaker.

(I asked him about the access to cable television and he said ruefully, "Oh, yeah, they keep us well-entertained in here.")

Because he was born on a foreign military base, as was his Senator, John McCain (R-AZ), Joe's evidence of U.S. citizenship is more complicated than a simple birth certificate.

Under ICE procedures, ICE is prohibited from keeping him locked up while the government sorts this out.

A memorandum from John Morton, ICE Assistant Secretary dated November 19, 2009, which I obtained recently through a FOIA request, states:

If an individual already in custody claims to be a USC, an officer must immediately examine the merits of the claim and notify and consult with his or her local OCC [Office of Chief Counsel] ... If the individual's claim is credible on its face, or if the investigation results in probative evidence that the detained individual is a USC [US Citizen], the individual should be released from detention.

"Probative," according to the Oxford English Dictionary, means "Having the quality or function of proving or demonstrating; affording proof or evidence; demonstrative, evidential."

Joe's birth certificate with his father's name on it, and the copious documentation of his father's marriage to Joe's mother as well as the rules for legitimacy and paternity in the places of his residence (California and Arizona) easily meet this criterion. Probative does not mean conclusive "proof," only that the evidence is relevant and could contribute to legal decision.

This morning I called the Pinal County Jail and spoke with Commander Montanyo. I told him that the jail he was running for ICE was holding someone over whom ICE had no legal authority. He gave me the number of the ICE deportation and removal office at the nearby Florence Service Processing Center (Orwell talk for ICE Jail).

I called the ICE jail where the ICE agents work in Florence and the operator said I needed to speak to "upper management." She connected me to the voice mail for Nicole Moore and I left a message indicating that her office was unlawfully ordering the confinement of someone with probative evidence of U.S. citizenship.

Because the procedures indicate that ICE prosecutors are supposed to review these cases, I called the DHS Phoenix office and spoke with the ICE desk attorney, Jim Harmony. I provided him with Joe's full name and "alien number" but Mr. Harmony said that he could not locate Joe in his database and questioned whether he was still being detained.

I gave Mr. Harmony the phone number of the Pinal County Jail as well as the phone numbers of two attorneys now assisting Joe with his appeals. He assured me he would investigate and provide me information he was authorized to make available to me.

A few hours later I called the Florence ICE jail and someone answered the phone.

Officer S. pulled up Joe's file and correctly pointed out that an "immigration judge" (hereafter EOIR attorney--these folks are NOT actual judges) and the Board of Immigration Appeals had found that Joe was not a U.S. citizen.

I pointed out that this was not a legally final determination of Joe's citizenship. BIA decisions on acquired and derived U.S. citizenship claim have been overturned by the Ninth Circuit Appellate Court and, recently, even by a district court judge- I will discuss Herbert Flores-Torres' case in a later post because it's so fabulous and also so complicated.

The rule I had quoted was not requiring ICE to release only people who had proven conclusively to be U.S. citizens--alas, ICE also needs education on this as well--but was indicating ICE agents lacked the legal authority to hold people who had "probative evidence" of U.S. citizenship.

Joe is not his father's biological son, but under the laws of Arizona and California, Joe is his father's legitimate son and this--along with the legal documents verifying this--is sufficient to trigger acquired U.S. citizenship. However, the BIA simply substituted their own understanding of paternity for the one in the law. In a related case in the Ninth Circuit, Herbert Flores-Torres recently prevailed in a derived citizenship claim that had been ruled invalid by an EOIR attorney and the BIA, but only after he had been held in ICE detention for two years.

The memorandum from Morton states:

While some cases may be easily resolved, because of the complexity of citizenship and nationality law, many require additional investigation and substantial legal analysis. As a matter of law, ICE cannot assert its civil immigration authority to arrest and/or detain a USC.

In the case of Mr. Flores-Torres, and thousands of other US citizens who have been confined by ICE, ICE has been demonstrably breaking this law.

Presumably that's why these procedures were developed. The only way that ICE can guarantee it is not confining U.S. citizens is if it releases people who are attempting to prove they are U.S. citizens.

DUH, right?

Except that Officer S. at the Florence ICE jail wasn't buying it. After telling me that the ICE records did not indicate Joe had even claimed US citizenship, which explains why his file had not been reviewed for release as the new procedures required, Officer S. kept repeating that the immigration judge and BIA had found against Joe and ICE was holding him for the appeal.

I repeated the points above and Officer S. said he would call me back.

True to his word, he called, "Can you send me a copy of what you were reading so I can send it to litigation?" I asked if he had misplaced his own copy or if he just had no idea what I was talking about. He said, "They come out with these new things every day."

Basically ICE was keeping its rules secret and then after I obtained them via a FOIA request, requiring me to send them their own rules in order for them to be enforced. (Sometimes I feel like ICE is detaining all the immigration attorneys, civil rights lawyers, and even me with this nonsense.)

"I was supposed to get out on my grandmother's birthday," December 23, 2007, Joe told me the first time we met. "She said that was the best present she could have." More than two Christmases later, in clear violation of ICE procedures, the law, and common sense, Joe remains locked up in the Pinal County Jail.

Jennie Pasquarella, staff attorney with the Southern California ACLU, after I explained the case, was struck by how long Joe's been detained: "Regardless of this memo, there's no good policy reason why someone with a credible claim to U.S. citizenship should be detained for years while they're fighting their case."

I'll be checking back in with the folks at ICE tomorrow and see if they have decided to read and follow their own rules.

"The Prison at Varick Street": Coming Soon, to an ICE Lock-Up Near You. (ICE Censors Previews)

The problem with locking up people indefinitely who have not committed a crime is that....

Okay, so at this point there are several million answers, at least one for every single individual who has been ripped away from his or her home and community and locked up by this government, exacerbated because men and women with guns and uniforms who break the rules know they can hide the violations from the public in real-time and later deport the evidence.

At least in prisons, the convicts stay in your country and you know they might figure out a way to get your badge, or worse.

Civil rights attorneys and journalists have been diligent in exposing the abuses that occur in these places, but as the articles and reports below indicate, it's a little like Whack-a-Mole. The government shuts down one evil facility but then opens up two more.

The public finds out about San Pedro's deadly mold and human rights violations? The ACLU wins some lawsuits? No problem. Just stick the people held there in another miserable place, perhaps a basement of a federal building, B-18 in Los Angeles.

People learn about the Hutto Detention Center treating kids like felons? The government's right on it. Close it down and lock the kids up in Pennsylvania, or better yet, steal them from their parents and place them in foster homes, as attorneys in southern Arizona observe is now happening when mothers are placed in detention centers.

Folks protesting at a NY detention center and filing a lawsuit because of poor conditions?

Open Varick. That's right. OPEN Varick. See for yourself, from an amazing, must-read 1993 ACLU report that appears in PART ONE and PART TWO:

The recent protests about Varick and the plan to shut it down, as well as the reports and reports on reports and reports on reports on reports since the 1980s reveal two things:
1) This particular failure of self-governance is an embarrassment to the U.S. Constitution and the concept of democracy. It is disgusting that this irrational and cruel system is so impervious to the rule of law.
2) We gotta make the Moles feel like they are surrounded by bright sunshine and that everywhere these creepy beasts pop up it is easy for journalists and anyone else to show up, making ICE lock-ups so queasy about their very existence that they die out or mutate into something a democracy can live with.

This means telling ICE its rules on visiting detention centers and press tours have got to go. Partly that's been done (it's called the First Amendment) but it needs to be followed and if it's not followed, then we need to make them follow it.

Right now ICE stonewalls on allowing press tours of any detention center and, in the case of Varick, simply prohibits it altogether. Varick lets in other groups for tours, just not the press, and that's unconstitutional discrimination. That's the policy implemented by ICE Propagandist Richard Rocha, who, according to two ICE agents, denied my request for a press tour.

(He also has said, in an interview with the Los Angeles Times, "ICE does not detain U.S. citizens," a lie sufficient to earn him this special, though not unique, title.)

And yes, the government locking up U.S. citizens at Varick also was happening in 1993:

Deja Vu All Over Again

"A startling petition arrived at the New York City Bar Association in October 2008, signed by 100 men, all locked up without criminal charges in the middle of Manhattan. In vivid if flawed English, it described cramped, filthy quarters where dire medical needs were ignored and hungry prisoners were put to work for $1 a day."

--Nina Bernstein, "Immigrant Jail Tests U.S. View of Legal Access," New York Times (November 1, 2009).

Hmmmm...

I bet Lucas Guttentag, Judy Rabinovitz and Lee Gelernt -- all still with the ACLU Immigrant Rights Project, which published the 1993 report -- do not find this petition that startling. They were moved to write their report because in the spring of 1990, guess who approached them with their problems?

Right, the Varick Street detainees.


(I was at Varick Street recently and a woman visiting her boyfriend told me he was concerned about a Chinese cellmate. He didn't have anyone on the outside sending him money and without being able to buy snacks from a commissary account people go hungry.)

Well, at least the government might do something, right?

"In response to ongoing reports of abuse, INS Commissioner Doris Meissner appointed a Citizens' Advisory Panel in March to review complaints. It is still too soon to gauge the impact this 15-member group will have on an entrenched system."

Well, not really.

The passage is from a terrific piece of investigative journalism Alisa Solomon wrote for the Village Voice. It appeared on August 8, 1998.

12 years later it seems fair to say that the group had no impact.

Still Groundhog Day. Again

[D]ozens of protesters gathered outside a Greenwich Village detention center on Thursday to demand the release of Jean Montrevil, a Haitian immigrant rights advocate and a community leader in New York who has been detained since December while awaiting deportation.

Kirk Semple, "Demonstrators Press for Haitian Advocate’s Release," The New York Times, January 14, 2010. article in The New York Times,

That was now.

This is then:

On Sunday, 150 people gathered outside the Immigration and Naturalization Service's detention center on Varick Street in Manhattan to protest the inhumane treatment of those held inside.

This is from an opinion piece Alisa Solomon wrote that appeared in the New York Times on Saturday, June 11, 1994: "The Prison on Varick Street." Solomon's essay describes the plight of Lulseged Dhine, who had been held at Varick for four years. At 4:30 a.m. he was awakened and sent to Arizona, according to INS, to "accommodate his request for fresh air."

What's Next? OR Next Year's Punchline?

26 years later, it seems the government is listening, sort of. Semple writes: "[F]ederal immigration officials announced that they would close the center, in part because it lacked access to open-air recreation."

New York Times staff writer Nina Bernstein also had her request for a tour turned down -- she writes about this in "Immigrant Jail Tests U.S. View of Legal Access," November 1, 2009.

And, yes, in the 1990s, Alisa Solomon said, she, too was turned down when she requested a tour.

President Obama Thinks Transparency Means He Disappears on Constitutional Rights

If the government has its way, on February 26, 2010 the "Prison on Varick Street" will end its run and the press will have never set a foot inside. And an important if shameful part of New York City's history since 1984 will vanish without specific documentation of its mildew, lack of fresh air, light, and unsanitary conditions that all sound vague and abstract as described here because I have never been allowed to see what it's really like in there and the people who are allowed in are not supposed to write about this. (These descriptions are third-hand summaries from my conversations with visitors at Varick and second-hand reports by Ms. Solomon and Ms. Bernstein.)

This would be not only a crime against history, but also a violation of the First Amendment. As long as a prison, or any other government agency, provides access to one group, as has been the case at Varick for law students, judges, and attorneys, then it cannot discriminate against the press.

I presently have a new request pending and am hoping for a different result. If you have been on a tour at Varick some point, please write and let me know!

Man Impersonating Federal Agent Impersonating Federal Agent

This is SO excellent!

"Man Arrested on Charges of Impersonating Federal Agent and 'Deporting' Distant Counsin's Wife," Los Angeles Times, February 3, 2010.

Demolishing any doubts that it is possible to deport someone without any legal authority, an enterprising Californian dressed up like the people who dress up like people who enforce the law and used a badge to send to the Philippines a woman who had the right to remain in this country.

NYC Real Estate Lobby Coup at Justice Department

"Residential real estate brokers were 'going berserk.'"

"Commercial brokers feared they would not be able to lease office space."

"U.S. Drops Plan for a 9/11 Trial in New York," New York Times (January 29, 2009).

USCIS Says Marriage Does Not Require Sex

No doubt couples across the country are heaving a sigh of relief now that US Citizenship and Immigration Services (USCIS) has reaffirmed in a recent case that a marriage can be for real without sex.

This came to my attention when an immigration attorney in Arkansas, Mariana Romero-Collins, wrote last July to ask about a client who had been applying for a green card through her husband, a US citizen. He became abusive and they divorced. She wanted to change the status of her request for residency following the divorce.

The problem was that during the initial interview the USCIS agent had inquired about whether the marriage had been "consummated." This was for the purpose of determining whether it was a bona fide marriage. The answer was no.

As usual, a complicated back story: the husband was in his late fifties and had various medical conditions making sex a challenge.

Also, a pet was involved.

Collins-Romero writes:

[United States citizen's] dog slept in the bed (which really shocked this Peruvian lady who had never seen a dog sleep in bed with it's owners). I know you might be [a] dog lover and have dogs sleep in bed with you, but that is out of the question for me too.

(For the record, me too.)

In the event, Collins-Romero used a Board of Immigration Appeals decision to successfully argue that their marriage, with its initial bout of romance and later squabbles and unhappiness, was bona fide despite no sex. The decision she used is In the Matter of Peterson, Interim Decision #1845 and it was decided in 1968. (Thanks to Dan Kowalski for the link!)

Many practitioners will know that the major criterion for establishing a bona fide marriage is the "intent to have a life together as man and wife," a rule that manages to be simultaneously anachronistic (the asymmetrical man and wife), vague, and tautological (what is living as a man and a wife other than living in a marriage?).

Collins-Romero wrote on Friday of the recent decision: "[W]e had so much evidence about the length of their correspondence by email (3 years) before she came to the U.S., his sending her love letters, pictures
of him having traveled to Peru and stayed with her & her family, etc." During the new interview, "whether or not the marriage was consummated never even came up."

If you want to read more, the USCIS Adjudicator's Field Manual provides revealing insights into this country's marriage laws and intuitions. Based on this and other sources UCLA Professor Juliet Williams has written a terrific paper on the concept of a sham marriage. You can read that here.

UPDATE: evening 1/10/10 Dan Kowalski just forwarded information that if the marriage is by proxy and not in person then sex, or at least the opportunity for sex, is required.

In other words, if the marriage occurs with both parties physically present, phone sex is okay. If it is phone-marriage, sex in person is required. Here are the links he sent: http://www.stripes.com/article.asp?section=104&article=67108/. http://webb.senate.gov/newsroom/pressreleases/2009-10-13-01.cfm/

UPDATE: 1/12/10 Mariana Collins-Romero sent me an email today: "the IJ terminated proceedings in her case yesterday due to CIS approval of the 751. it was definitely an interesting case and a learning experience."

Interview by Maria Hinojosa, "Latino USA"

Here's an interview by Maria Hinojosa taped during the week for her NPR show "Latino USA." It broadcast today.

Neighbors Visit ICE Office in Grand Junction, Colorado

This is Koinonia Church in Grand Junction, Colorado, where people met after visiting a nearby ICE subfield office.

On Monday I received a memorandum from someone who had read "America's Secret ICE Castles" on the Nation website, downloaded the list of ICE subfield offices I obtained through a FOIA request, and paid a visit to their office in Grand Junction, Colorado.

Here's what they reported.

As Cold as ICE: A visit to the Grand Junction ICE Offices

On December 31, 2009 at approximately 2:00 pm, eight representatives of area Faith-based organizations (Hispanic Affairs Project, Grand Valley Peace & Justice and Koinonia Church) visited a facility operated by Immigration and Customs Enforcement (ICE) at 571 S. Commercial Drive in Grand Junction. The facility had heretofore been unknown in our community. Our visit was in response to an article in the 1/4/2010 issue of The Nation by Jacqueline Stevens talking about “hidden” detention centers located nationwide.

The brown block building in the industrial section of Grand Junction is non-descript with no signs identifying it as government office or ICE facility.

[A member of the group later reported that in response to a query from the Red Cross, ICE stated that the facility lacked a sign because of "budget cutbacks."]

Here's an image of the Grand Junction ICE office:

This is how it was described by a member of the 12/31 group that visited: "This is the ICE facility we visited 12-31-09. In the right corner is the Office, but we did not have permission to go inside. In the left side, is where the ICE Van are coming in. The whole area is restricted perimeter and not sign is around there. I entered in the parking lot there, but they asked me to put out the car, because no particular vehiculo can be there. Just video camaras around there bring out more scare in this place."

The memorandum continues:

When we arrived we rang the doorbell and an ICE officer who was outside came and asked what we wanted. We introduced ourselves and our purpose and he responded that the building was just a “booking center” and that they never held people in the facility...

The memorandum concludes:

Our group left the parking lot (where these conversations had taken place), and followed up with a brief discussion at Koinonia Church where the following questions and observations were noted:

1. KM said the facility is not a detention facility, but if people are being held for up to ten hours then they are being detained. The question arises as to adequacy of facilities such as bathrooms, chairs, cots, etc. These are health and safety issues that need to be addressed for the comfort and safety of detainees.

2. In addition to physical facilities there is also the question of services. If detainees are being transported and processed over lengthy time spans what provisions are made for adequate nutrition, medical care for fragile individuals, etc.?

3. KM said that phone privileges were available at the local jails. If a person is detained in Meeker, transported to GJ, processed, and then transported to the local jail it could conceivably take 24 to 36 hours for this process to occur. In the meantime family members and friends would be out of touch with the detainee and the detainee would have no ability to make contact.

4. The fact that ICE has no publicly accessible and up-to-date list of detainees means it is impossible to track the location of people. At the same time these people are being removed from the location of their resources and documentation and as The Nation rightly notes are unable to mount any kind of defense to their detention.

We agreed on the following actions in response to the visit:

1) We would contact the ACLU to investigate.

2) We would make appointments with John Salazar and Mike Bennett’s local offices to bring this to their attention.

3) We would contact Ja[c]queline Stevens, the journalist who wrote the piece in The Nation to let her know of our experience and that ICE claims her story is not based on facts.

You can find the complete memorandum here.

The Nation article "America's Secret ICE Castles" consists almost exclusively of statements from government officials, government documents, immigration attorneys, and people who were mistreated in ICE facilities. ICE has a record of denying facts in plain sight, to wit ICE spinmeister Richard Rocha saying ICE does not detain US citizens despite copious evidence that ICE detains US citizens every day.

If ICE has specific evidence of misstatements, what is it? The only way for ICE to falsify the article's claims is by providing a real-time database for locating people in their custody, listing these offices on the ICE website, posting signs, and respecting the rule of law in all their facilities.

Finally, this coalition did something pretty great. I wrote the member who sent this to me:

i think you understand that simply by knocking on their door you and your group have made a big difference to the culture of that subfield office. december 31, 2009 was the first day they knew that you knew they were there and might at any time stop by. bravo!

As my colleague Bonnie Honig writes in her recently published book Emergency Politics: Paradox, Law, Democracy (Princeton, 2009), democracy means the competing and elusive possibilities of rationality, equality, majority rule, and rights in a system that may not make a lot of sense and be unfair, not despondency because the government is breaking the law.

Or, as Gandhi put it, "Be the change you want to see in the world." Democratic politics in the United States sometimes makes this difficult but it is always a possibility.

Finally, I was on the Leonard Lopate show today -- he's on New York's public radio station WNYC. You can listen to it here. (The station is across the street from the Varick Detention Center, also unmarked as to this function, though it posts signs indicating the presence of other federal agencies.)

Democracy Now Interview on Nation Articles

You can watch the interview here.

The articles occasioning the interview were published recently in The Nation magazine. The one that appeared in the print magazine and online is America's Secret ICE Castles. The ICE Ruse Operations article is a "web exclusive."

Many thanks to those who agreed to be interviewed, including those whose comments space did not permit appearing in these articles. I hope to post a back story piece later and, with permission, will include some of this information there.

I also want to thank, again!, Dan Kowalski, an immigration attorney who runs the Bender's Immigration Bulletin, for his help through his listserve in bringing to my attention people with important stories to share.
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update, 01/05/10

A copy of a letter to The Nation written by Hasan appears in a comment below. This letter was retracted at my request because I recently noticed what Hasan called "embellishments" of his background prior to the narrative of being tortured by an ICE agent. Hasan had told me that he had a green card and that the ICE agent destroyed it, but that is not true. Hasan entered the country legally but was later ordered removed; he never had a green card. He also told me that he had several degrees that he does not in fact possess.

Hasan said that he included this information because he had not been taken seriously in conveying allegations about his torture at an ICE subfield office in 2006.

Hasan initially contacted me after reading the article about subfield offices in The Nation online; he is in Pakistan and someone in the US brought this to his attention. After obtaining a formal waiver from Hasan, I was quickly able to obtain a copy of his ICE file. The file is highly redacted but the information available is consistent with the information Hasan gave me regarding the details of his arrest and deportation, including that Hasan was arrested jointly by ICE and an agent from the FBI's Joint Terrorism Task Force. Hasan had not seen his file before giving me this information.

I will be following up on his account and will report evidence of torture if this can be verified independent of Hasan's narrative.

I post many accounts of people who are mistreated by ICE agents and to date ICE has not provided evidence that would contradict the information these contain. I of course receive numerous other accounts that I do not pursue because I do not trust the narratives and cannot verify them. Hasan had requested that I remove his comment but in the interests of transparency and for the historical record I am leaving it as is and including this explanation.

"Home Sweet Home!" says US Citizen American Government Rendered Stateless

Ten years after being illegally banished from his country, U.S. citizen Johann Francis was reunited with his mother and two sisters in an Atlanta airport early Sunday morning. (For background, please go here.)

On Monday he spent the day figuring out new gadgets, including the shower, and catching up with his family and life in America: "I've been away so long. Readjusting is really something. It's like if you haven't eaten salt in ten years and someone gives you a chimichanga."

When Mark Lyttle returned to the Atlanta airport last spring after he was illegally deported he was held for two days and the government prepared to deport him again, despite a freshly minted US passport. Johann's response to hearing about Mark's experience of being told his passport was fraudulently obtained was, "How stupid do they look? You can just lie and get a passport? Do you know how many people are trying to get into the United States and they're saying you can get one if you just lie?"

In the event, Johann entered the US at the Fort Lauderdale airport Saturday evening with no significant delay. Barbara Gonzalez, an ICE public affairs officer, had transmitted information about his return in advance to the Customs and Border Protection office that had presumably updated his records. Johann also had a sealed letter from the US Consulate in Jamaica and produced this after the agent at the checkpoint was "staring with a confused look at the computer, like he didn't know what to do."

The agent brought Johann to an adjacent room and he sat there with his luggage, not sure what was happening or would happen next, "I got scared, that I'm-in-trouble-feeling, worried it's all going to happen all over again. I was just trying to be calm." 40 minutes later an officer came in and asked Johann two questions, if his mother was single (yes) and how old he was when he had his citizenship (14). But they kept the copy of the letter from the US consulate. Johann said, "I really want that letter. I'm scared."

In Jamaica, Johann had expressed his discomfort with the unfairness of feeling this way, "I feel like I'm doing something wrong, or like they're doing me a favor [by issuing the passport]. I feel like I have to ask a favor of them."

(I have written a note to Barbara Gonzalez asking for procedures US citizens should follow if they want to make sure that earlier wrongful deportations do not haunt them forever--right now the FBI database will indicate that he is illegally in the country and he may be arrested for illegal reentry--and will post the reply when it arrives.)

That feeling of not quite fitting in or being accepted by one's own country emerged repeatedly in our conversations as a burden and also a source of strength. The first time we spoke, Johann told me about speaking with his mother from Jamaica after he'd lost touch with her for almost two years, "Wow, we've been looking for you," she said, "I could hear a sigh of relief that I wasn't dead or hurt somewhere. That was hard, hearing my mother's voice again. It was almost painful. I didn't cry because I was used to being alone. We were in Washington State. I am from Jamaica. There are no Jamaicans in Washington State."

And there weren't many deported US citizens in Jamaica. One of the most difficult challenges Johann endured was hiding his deportation, "I couldn't say, 'Hi my name is Johann Francis and I've been deported from the United States because those people are looked down on. They're outcasts. It's like, you had your chance and you blew it. Why should I help you now?" But Johann could not locate any Jamaican documents to verify his birth there--which he would need for either Jamaican or US citizenship. Although he was by law a US citizen, he was de facto stateless and invented various tax numbers and so forth for later employment.

Hiding his identity was not easy. First, there was the accent. Johann spoke American. He made up a story of going to the US for education and returning to Jamaica by choice. But it also was hard when people believed him. Speaking from Jamaica a few days before returning, Johann said:

"I'm still going with that story up to this day. That was a mental drain, being unable to speak Jamaican without an accent, and I had to go through the whole fabrication. I've been constantly somebody else. I think three people knew my true story. I don't know if you know the psychology, but when you hear a foreign person who speaks another language, when they get upset, they start speaking that language. It's an expression of themselves and who they are and they relate better speaking the language they know and feel frustrated speaking a language they don't know. That's me for ten years. In the seventh or eighth year I started associating myself with other deportees for the sake of wanting to be home in America. That was so wierd. I could relate to them whether I was a citizen or not. I told one or two of them the truth becuase you want to talk to somebody. You want to tell your story."

One interesting piece of Johann's story is a legal misunderstanding on the part of his mother, one that persisted until his seventh or eighth year in Jamaica. His mother knew that Johann had derived US citizenship, the equivalent of citizenship at birth, when he was 14 through her naturalization. She simply assumed that the US would not deport a US citizen and inferred from his deportation that the government had revoked his citizenship. Once they realized that this is not what had transpired, and that Johann had his US citizenship rights stolen by a US government that had flagrantly violated his due process rights, Johann began his quest to return.

Until the government clears up the legal mess it created, Johann is still at risk of arrest, but he is very happy to be back and begin to tell his story.

US Citizen Unlawfully Deported Ten Years Ago Returns Tomorrow

U.S. citizen Johann Francis, 30, unlawfully deported from the United States, returns tomorrow from Jamaica to celebrate Christmas with his family in Atlanta for the first time in ten years.

Why Was Johann Deported? The quick answer is that the U.S., like other countries, continues to use medieval rules to regulate the movement of people across state boundaries. These regulations were thrown out a few hundred years ago when they were used to restrict movement among villages and they are equally absurd for regulating movement among countries.

Of course even under current laws, US citizens may not be deported. Yet Johann and thousands of other U.S. citizens will tell you that this has happened to them. Johann's story, alas, is a familiar one: a youthful run-in with the law, a couch-surfing mother on the other side of the country, no attorney, and voila, a one-way ticket to Jamaica, the judge telling him, "You're deported forever."

The Facts

Johann a US Citizen. Johann moved to the US with his mother when he was 7, at which time received a green card indicating he was a lawful permanent resident. His mother was not married to his father; his father is not listed on Johann's birth certificate, and his mother always had sole custody of him. Thus, when Johann was 14 and his mother naturalized, he automatically derived US citizenship.

Johann and Mother Cannot Find Each Other. Johann described a childhood of moving around among various military bases as his mother accompanied his stepfather to new posts. After a separation his mother, broke, decided to leave Washington because her employment prospects were better in Atlanta. The timing could not have been worse, "It was January of my senior year. I was very distraught because I wanted to graduate with my friends. I was 18 and working at the Safeway and told my mother, 'Hey, I want to finish, and stay, and graduate.' She said that was fine." However, his mother's economic situation did not improve and she was moving from relative to relative and then motel to motel. Meanwhile, Johann also was having a tough time, also moved, and his mother could not locate him, either.

Johann Goes to Prison. Shortly before Johann was supposed to graduate, he and some friends had a Westside Story encounter in Seaside, Oregon, the result of which was that Johann pled guilty to felonious assault and served one year in the Oregon Shutter Creek prison boot camp, "Boot camp was really important to me because out of the 96 inmates who started, only 26 finished. I was one of the model prisoners there, the guy who carries the flag. I did very well and I was proud that I graduated."

Johann Sent to Detention Center. "On graduation day I was told I couldn't leave because I have an INS hold." Johann said that as far as he knew he was never interviewed by anyone from the INS. Johann said he told the guards in Oregon that he thought he was a US citizen, but when they asked him the year his mother became a U.S. citizen and he couldn't answer, they "shipped me to Arizona, to Eloy."

At this point the line was quiet and I thought maybe we lost the connection. Johann was sobbing and trying to regain composure, explaining that he thought he was a U.S. citizen but had no means of contacting his mother in order to obtain the documents for proving this. "I'm talking to inmates who are in there for two or three years. Are you kidding me? Some are trying to get asylum and my story just sounds impossible. Okay, you're a citizen, too. I don't have any money. I can't afford a lawyer. Nobody knows where I'm at. By the time my mother catches up and finds out that I'm not in Washington or a hospital and that I may be in Oregon, I'm not even there. I'm in Arizona." Johann was in tears, "I didn't know or understand the whole law. I knew they weren't supposed to... But they did. I signed the papers. I signed it. It's my fault and the judge said never to return. I have nightmares. I'm thinking to myself, even if I had a right I could have signed it away." (By the time he was in Eloy, Johann was entirely confused about whether he really was a US citizen. He spent three months there and wanted to leave confinement.)

"It's so amazing what you can do with a coconut, but it 's not a well-balanced diet." Johann's life in Jamaica for the last ten years has been one of despair and resourcefulness, about which I will write more on Monday. One major difficulty was that until 2007 it was impossible to locate one's birth certificate without a number. However, in 2007 a new digital system was put in place, and that's what eventually allowed Johann to track down his certificate and bring it to the US consulate which, along with the legal documents from his mother, proved his US citizenship. On October 30, 2009, Johann received a US passport: "When I got it I told myself, this is the prettiest piece of paper I've ever seen."

Johann endured various diseases associated with malnutrition but eventually found his bearings and, drawing on his high school broadcasting experience, began to independently produce a television show on the local tourist industry for which the businesses paid Johann and Johann paid the television station for air time. Before sending me his photograph Johann explained that they do not do justice to his hardships, "Most of the pictures I have taken are when things are good. People are going to see these and say, 'Wow, this guy looks great. Send me to Jamaica.' How I am now, coming home, is not the meager, malnourished person I was four or five years ago. I didn't want to be the poor puppy that just came home. That's good PR, but that's not me."

In time for Christmas. Johann is scheduled to arrive tomorrow, Saturday, December 19 in Atlanta via Fort Lauderdale. He has a sealed envelope with a letter from the US consulate verifying the authenticity of his US passport. The consular officer realized that Johann might have the sort of experience Mark Lyttle endured on returning with a valid US passport from his unlawful deportation in April, when the government tried to execute and "expedited removal order" and failed to return phone calls from Marks' attorney.

After the Holidays. Even if Johann is successful in returning, the decade old unlawful deportation order remaining in his federal record could easily trigger a new criminal arrest for Illegal Reentry. And, if Johann is pulled over for a speeding ticket, especially in the Atlanta area, it seems likely that he would be once more in the net of ICE. After I called ICE public affairs officer Barbara Gonzalez last spring, ICE agents and attorneys retracted the ICE deportation documents and requested that William Cassidy terminate and vacate his illegal deportation order. Cassidy did so.

I am sending this information to Immigration and Customs Enforcement and the Customs and Border Protection and hope that they are able to begin to offer this minimal and late protection against further unlawful confinement and other forms of government harassment stemming from Johann Francis's unlawful deportation.

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How I learned about Johann's travails. On the basis of reading this blog, Johann sent me an email last week. Since then we've spoken on the telephone. The information above is based on those conversations. He contacted me because he wanted to publicize his experience, "People shouldn't have to go through this. Ultimately, if we need a better system in place where we can avoid illegal deportations If I can have a hand in that, that would be good."

Clandestine ICE Subfield Offices

12/22/2009 UPDATE: For a recently published article inThe Nation magazine, please read "America's Secret ICE Castles."

For a list of ICE subfield offices and their phone numbers sent to me in response to a FOIA request, please go here.
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A few weeks ago I was driving with Mark Lyttle to some of the government offices that had kidnapped him, stripped him of his rightful identity documents, rendered him stateless, and deported him to Mexico. (For more on how Mark, 33, born in North Carolina, was deported, please go here.)

One of the places we stopped was an address on several of the documents issued Mark from an ICE office in Cary, North Carolina. When we first arrived at the industrial park in a suburb of Raleigh, I thought google/maps had led me astray. 140 Centrewest Court was just next to a production plant for Oxford University Press, and off a main road with some gated communities. There was no sign indicating an ICE facility.


When I started to express some doubts Mark said, "No, this is it. That's one of their vans." He pointed to a white van with no marking and no windows behind the driver's seat. He recognized it because he'd been driven in one like that, in shackles and handcuffs. (It's not in these photos, alas.)


We continued toward the end of the road and found ourselves behind 140 Centrewest Court, at the far end of the development, adjacent to at least 15 unmarked white vans identical to the one we'd seen in front.

There was no sign anywhere indicating that this was a government building, much less a place where people were being held by ICE in transit to larger facilities.

Though there was a sign suggesting one might be given travel documents.


When I returned to Berkeley I called up some folks to see if I could learn more about these secret sites. Kathy Purnell, an Immigrant Rights Fellow at the ACLU in Georgia told me that she'd read something about them in a recent report by Dora Schriro, "Immigration Detention Overview and Recommendations" (October 6, 2009).

According to the report, these offices are used to hold people for up to 12 - 16 hours and are used for "84% of all book-ins." The subfield offices are below the legal radar so it would be impossible for anyone to know the conditions and if the limits are enforced.

I called ICE and requested a list of what the report says are 186 subfield offices.

First I was rebuffed. Temple Black, an ICE public affairs officer, checked with his supervisor and told me that these locations were "not releasable." He said the list was "law enforcement sensitive." Around the time he told me this he had a family emergency and left town. Mr. Black put me in touch with someone else at ICE who did release the list to me.

(I'm still not sure of the list's official classification. Mr. Black told me today that he was told the list was law enforcement sensitive and that he couldn't remember anything else, nor did he have information on why another individual would release the list.)

The list is not complete (it has 174/186 locations) and at least one of the addresses is not accurate. I have requested a complete list and am waiting for that.

I circulated the list to various civil rights and immigrant rights groups, including Detention Watch Network, the ACLU, and Human Rights Watch. I also shared it with about a half dozen attorneys who work on immigration law enforcement. No one had previously seen it. Some of the locations are known detention centers and federal buildings but many are like the place I saw in Cary: unmarked buildings with unmarked cars housing agents who themselves travel incognito.

For more on what's happening at these places, and the response from activists and attorneys, stay tuned for an article that will be appearing shortly in a national magazine. Meanwhile, feel free to stop by and say hello.

A Word From Our Sponsor...

Okay, I guess that's me.

States Without Nations: Citizenship for Mortals may not exist, but the book is now a reality. It was published this week by Columbia University Press as part of its series New Directions in Critical Theory, edited by Amy Allen.

I hope you judge it by the cover. (Thank you, Columbia designers!)

Here's the catalogue copy:

As citizens, we hold certain truths to be self-evident: that the rights to own land, marry, inherit property, and especially to assume birthright citizenship should be guaranteed by the state. The laws promoting these rights appear not only to preserve our liberty but to guarantee society remains just. Yet considering how much violence and inequality results from these legal mandates, Jacqueline Stevens asks whether we might be making the wrong assumptions. Would a world without such laws be more just?

Arguing that the core laws of the nation-state are more about a fear of death than a desire for freedom, Stevens imagines a world in which birthright citizenship, family inheritance, state-sanctioned marriage, and private land ownership are eliminated. Would chaos be the result? Drawing on political theory and history and incorporating contemporary social and economic data, she brilliantly critiques our sentimental attachments to birthright citizenship, inheritance, and marriage and highlights their harmful outcomes, including war, global apartheid, destitution, family misery, and environmental damage. It might be hard to imagine countries without the rules of membership and ownership that have come to define them, but conjuring new ways of reconciling our laws with the condition of mortality reveals the flaws of our present institutions and inspires hope for moving beyond them.

And, yes, there are blurbs:

"Imagining governments and citizenship unbeholden to rules of birth-that is, cleaving the state from the family (i.e. the nation)-is the single most important thought experiment in political theory since John Rawls asked us to consider justice from a position of veiled ignorance. Jacqueline Stevens is not just a punchy provacateur, she is a careful scholar and an engaging writer. States without Nations is a must read for any scholar of the politics, sociology or legal studies of the state-and anyone concerned with distributive justice." — Dalton Conley, Dean for the Social Sciences, New York University


"States without Nations is a scathing indictment of kinship-based membership. In an argument as unrelenting as it is brilliant, Jacqueline Stevens challenges feminists, liberals, and, indeed, anyone who values peace and security, to join her in recognizing and rejecting kinship as the ultimate source of violence. This original and much-needed intervention will reshape debates in international relations, political science, and women's studies." — Jodi Dean, author of Democracy and Other Neoliberal Fantasies

"States Without Nations is a brutal exposé of the violent and mutually implicating underpinnings of liberal theory and national identity, and it constitutes nothing less than an early attempt to reconceptualize and reorganize world citizenship anew. I find it brilliant, bold, breathtaking, pioneering, far-reaching, and visionary. There's nothing else quite like it." — John Evan Seery, professor of politics, Pomona College

"No myth needs exploding more urgently than that of the tight association of state with nation, of the exigencies of governance with the idea of people defined by culture and common descent. No misconception has done more damage in modern political theory. And no theorist is better positioned to explode this myth-in its birthright, where it lives, in its premises of blood and land and birth-than Jacqueline Stevens." — Jeremy Waldron, University Professor, New York University School of Law

Order Book

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.