How ICE Deported Another US Citizen, Andres Robles Still In Mexico

Andres Robles, 22, has a letter from US Citizenship and Immigration Services sent on June 15, 2011 stating he "derive[d] citizenship on June 13, 2002, when your father became a naturalized citizen of the United States." But the letter, under the Department of Homeland Security official insignia, is no protection against the armed gangs that roam San Isidro in Apozol, Zacatecas, where he's been staying with his grandmother since he was wrongfully deported when he was 19:

There's a lot of shooting, mafias. They do decapitations. The police don't really do nothing about it. They had a fair but no one went because of the mafia picking up people.

A post last week describes the absurd failures of the U.S. government to rectify it's admitted errors, including how the consular officers in Matamoros are failing to protect a U.S. citizen from the dangers described above.

The post here describes how this happened.

Andres, who speaks with a slight Louisiana drawl and understood little Spanish before his deportation, was ordered removed from his country on December 16, 2008 by an adjudicator he believes is John Ducks from the Oakdale Immigration Court because of the following miscarriages of justice and the law.

1) Immigration and Customs Enforcement (ICE) agents in the jail where he was first interviewed and then at what sounds like the regional Criminal Alien Program subfield office ignored his statements asserting U.S. citizenship because they didn't believe him, in the first place, and because, in the second, investigating them would be too much of a bureaucratic hassle.

In jail,

They [ICE] asked me if I had my papers and stuff, and at that time I didn't have an ID. I was 17. I didn't have any type of ID. I told him I had a father who is a US citizen and he said, 'Really, do you?' I told him, yeah. But he had a face like, yeah, right, like he didn't believe me.

This was at the Terribone Juvenile Detention Center, where ICE is busy deporting teenage US citizens.

At the small office where Andres was taken in 2008 after he finished his jail sentence, he again told the agent interviewing him that his father was a US citizen and he believed he also could be a US citizen:

I told them right there, too, about my father, and they said they would look into it. I remember they were going to show it to the main person there, but he didn't agree. They said just take him up to the jail. The person talking was a young person. He was alright, telling me what was going on. That's how I know the main officer there didn't agree, said it was too much paperwork.

The guy running the office knew that ICE was not allowed to detain US citizens, but simply ignored the plea to check the USCIS database. A few minutes of searching would have verified not only the US citizenship of Mr. Robles' father, but also the names and ages of his children, an easy means of confirming that the person in their custody was indeed the same person who had derived US citizenship when his father naturalized in 2002 and therefore should not be in deportation proceedings.

2) During the hearing the adjudicator ignored Andres and his attorney failed to appear telephonically twice. The first time, no one was available when the adjudicator called the law offices and the second time, a secretary appears to have participated by telephone instead of the attorney.

Mr. Robles' father hired an attorney who then failed to appear in the telephonic hearing, and instead designated his secretary to take the call from the immigration judge and simply agree to the deportation.

I told him [John Duck, Andres believes] that my father was a U.S. citizen. He didn't say much. I think he said it was too late to say that. They were just talking among themselves with the DA [the IJ, the immigration attorney's secretary, and the ICE trial attorney]. They asked me if I wanted to fight the case and everything, and I said not really, because I didn't want to stay another year in jail. So I got deported.

According to Maria Robles, Andres' older sister, the current attorney, Lawrence Fabacher, and her father have been faxing and calling the office of this attorney to request the file. "He's in hiding. He just ignores everyone. He's an attorney. He should have taken care of this. He basically just stole our money." Maria also told me that the secretary who appeared on behalf of the attorney quit because she didn't approve of how he ran his business.

(I left messages today at the two offices for Andres' first attorney, someone who runs one of those places that promises to sue for your back injury and help you immigrate. I will publish his name after he has a chance to respond to their allegations.)

[UPDATE August 30: The attorney Andres Robles' family hired and whose actions are described above is Rigeur Silva; he also ignored my several phone messages left with his receptionists in two offices, voice mail messages, and email messages seeking comment on these claims.]

3) ICE and the State Department's Consular Services are doing nothing to rectify their error.

When Mark Lyttle was deported, the consular office in Guatemala City contacted his family and within six hours had issued him a U.S. passport. Consular Affairs spokesperson Rebecca Dodds was not familiar with the deportation of US citizens and was very surprised when I told her about the expeditious treatment of Mark Lyttle, suggesting that official protocols would have required he wait much longer, though providing no information on these. "If someone comes into the consulate and speaks with an American accent and doesn't have the papers, then we would do what it takes to assist them." She refused to comment on why this did not occur in the Matamoros consular office because I did not have a privacy waiver and she is "never allowed to speak about a U.S. citizen," a status the State Department will assert only for the purpose of denying information about inept consular officers, as opposed to recognizing as a slam dunk acknowledgement that Andres should be allowed to return.

(Since USCIS has issued a letter to Andres signed by Jonathan Crawford verifying his US citizenship, there is no reason it should take more than a few minutes or hours at the most to verify the letter's authenticity by phone or email. If consular officer Maria Alvarado, who handled Mark Lyttle's passport in the Guatemala City, were in Matamoros, Andres Robles would be with his parents in Louisiana today.)

As usual, ICE has no response to queries about the agency's ongoing civil rights violations committed against U.S. citizens who appear to be of Mexican descent, other than spokesperson Ernestine Fobbs assuring me she is pursuing one.

Ms. Fobbs said she also was the person who was not responding to my earlier inquiries about the deportation, detention, and release of Marine and U.S. citizen George Ibarra over two months ago, even though the ICE Arizona spokesperson and my point of contact for that story was Vincent Picard. Ms. Fobbs claims to be still working on that but will provide no timeline for a response.

USCIS Says ICE Deported US Citizen, Andres Robles Still Stuck in Mexico

Andres Robles is celebrating his 22d birthday today in Mexico and not with his parents in Thibodaux, Louisiana because the U.S. government once again deported a U.S. citizen.

Instead of following the law that says U.S. citizens cannot be detained, much less deported, the government is channeling Kafka.

The letter Mr. Robles received over a month ago care of his attorney Lawrence Fabacher speaks for itself:

Dear Mr. Robles,

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

Upon your return to the United States, please make an appointment at the USCIS office closest to your current location. At that time, the local office will be able to assist you in obtaining your certificate of citizenship....

We have papers that will authorize your presence inside the Castle, Mr. Robles. But since we mistakenly threw you out of the Castle, you may not obtain them. Once you enter the Castle, we will be happy to provide you papers that will authorize your entry.

Mr. Robles is not without assistance. His attorney, Lawrence Fabacher, reached out to the Oakdale, Louisana ICE offices. ICE told Mr. Fabacher that Mr. Robles would have to resolve this matter at the U.S. consulate in Mexico. Andres' father flew down to Mexico and met his son at the U.S. consular office in Matamoros, a border city that is a 12 hour bus ride from Andres' current home with his grandmother in a small village 40 mountainous miles north of Puerto Vallarta.

When we spoke by phone yesterday, Mr. Robles said that the consular officer told them they did not issue "that kind of passport" and refused to assist him.

Andres' sister Maria, 26, also a U.S. citizen, told me that when her parents shared with her the results of their trip to the consular office over two weeks ago they were all devastated, "It's like the world's coming down on our shoulders. They were crying. He's growing up without us. I try to help them but I feel so useless."

Maria had in fact managed to track down someone in the U.S. Consular Office in Nuevo Laredo who followed up on her concerns and induced someone in the State Department in Washington, D.C. to call Andres. Andres told me, "He asked me all the questions you are asking: where I first crossed, the first time I crossed over, how old I was and all of that, where I went to school. They told me he would call me back and get me my passport, that I could pick it up at a border crossing."

But no one ever called back and the number he had for the individual with whom he spoke two weeks ago was a nonworking number with an area code for Trinidad and Tobago, perhaps the result of a transcription error.

Happy birthday, Andres. Hang in there. Wouldn't it be a nice present if the guy from the State Department called back today! You told me that you thought you'd been there since New Year's Eve, 2009, but I just checked and the immigration judge you think deported you, John Duck at Oakdale, ordered your removal on December 16, 2008, a week after the adjudicator William Cassidy ordered Mark Lyttle's deportation unlawful deportation.

I will post more on how Andres came to be deported early next week.

And I will also report any response to this from ICE or the State Department, though I am not holding my breath. ICE ignored U.S. citizen and ex-Marine Geoge Ibarra's privacy waiver instructing the government to share information with me about his unlawful detention and deportations, even though ICE spokesperson Vincent Picard assured me that this would be forthcoming. (ICE ignored Mr. Ibarra's probative evidence of U.S. citizenship, i.e., an immigration judge finding he was a U.S. citizen!, and continued to hold him for several months while it filed its appeal, releasing him without explanation only after I wrote about this and major news outlets were arranging interviews with Mr. Ibarra at the Eloy Detention Center.)

This most recent episode of ICE silence on its malfeasance confirms that ICE under the Obama administration is misusing funding Congress appropriated for providing public information and is instead devoting these resources to its propaganda machine and hiding from the American people the practices it is using to unlawfully detain and deport U.S. citizens and other residents.

A research article on this topic, "US Government Unlawfully Detaining and Deporting US Citizens" will be appearing shortly in the University of Virginia Journal of Social Policy and the Law, vol 18 (3).

FOIA Response from EOIR: Guidelines, Rules, E-mails for BIA Staff and Adjudicators

I recently received 354 pages of documents responsive to a FOIA request I submitted to the Executive Office of Immigration Review (EOIR) in 2010.

The documents consist largely of BIA style guidelines, rules for the constitution of BIA staff panels, and also topical memoranda and e-mail traffic, including on Haiti. Numerous pages are redacted and I will be filing an appeal requesting those as well.

These documents were produced in response to my request for the rules used to constitute the Board of Immigration Appeals (BIA) staff panels as well as the rules and other instructions for the BIA decisions themselves.

The documents in their entirety may be downloaded here.

In addition, I have uploaded the most recent EOIR release and a few other documents to governmentillegals.org, on a page with other FOIA documents. This page is part of a site I am now putting together in order to track FOIA replies as well as the government's responses to misconduct complaints, since it's too cumbersome to track these via a blog. My short presentation on watchdog functions and agencies within the government, for the June 2-5 Law and Society meetings in San Francisco, is the occasion for this soft launch.

Of special note are the investigations of immigration judge misconduct produced by the Office of Professional Responsibility after they refused the initial FOIA request, were instructed to release them following an appeal, and after Marlene Wahowiak stonewalled until she was contacted by staff at the Office of Governmental Services FOIA office, a new agency established for just this purpose. The correspondence leading to this release also is available.

I appreciate the EOIR's responsiveness, but I have numerous requests that have been pending with the agency for over a year. Also, note that the cover letter, in addition to being backdated by a year -- I was advised this was a clerical error -- does not include the date of my initial request. And the EOIR, as well as the Department of Justice's (DOJ) Office of Professional Responsibility, remains in the technical dark ages and is still sending hard copies of long documents, in violation, ironically, of the March, 2009 FOIA memorandum issued by Attorney General Eric Holder Jr. himself, that is, their boss, stating that they should use "'use modem technology to inform citizens what is known and done by their Government,'" quoting President Obama.

The DHS, for instance, allows one to submit FOIA requests online and sends out CDs for such matters, which is efficient for the government and also for the public. The EOIR still only responds to snail mail FOIA requests and issues their responses via paper. I believe the agency is aware of these limits and I also understand that in many cases its clientele, i.e., pro se respondents, would be at a disadvantage if the EOIR were to disseminate immigration court files digitally. However, this is a problem that could be solved by the EOIR providing options for the initial inquiries and then responding in kind.

DHS Releases US Citizen George Ibarra From Eloy Detention Center

On February 22, 2011, an immigration judge ruled that Mr. George Ibarra had by a "preponderance of the evidence" proven he was a U.S. citizen and thus terminated his deportation order, and yet Mr. Ibarra remained in solitary confinement in the Eloy Detention Center pending the decision's appeal by the Department of Homeland Security (DHS).

Yesterday afternoon, a week after information about his plight was posted on this blog and distributed by the Bender's Immigration Blog, edited by Daniel Kowalski, authorities from the Department of Homeland Security released Mr. Ibarra.

Mr. Ibarra's pro bono attorney, Luis Parra, said that his client had received no information on the reason for his release and that Mr. Parra had seen no legal documents to account for the shift in the DHS determination of his client's custody.

At present Mr. Ibarra is in legal limbo. The immigration judge has declared him a U.S. citizen, but he's still in the DHS database as a deported criminal alien and subject to arrest. "He's going to have to be very careful out there," Mr. Parra said, "It's not like he's carrying around a paper saying he's a U.S. citizen," although he does have a minute entry from immigration judge Richard Phelps that terminates the deportation order on grounds of Mr. Parra's U.S. citizenship.

Mr. Parra decided to help Mr. Ibarra, a veteran, after reading a posting about him on an Arizona listserve and sympathizing with his predicament. "I knew about his situation because I'm a veteran and I understand the plight of Persian Gulf war vets who served in the 91 war." Mr. Parra and Mr. Ibarra both did active duty in the region and saw combat. As a result of Mr. Ibarra's misclassification as a criminal alien he was not only locked up, deported twice -- in 1998 and in 2005 -- but he also lost his veterans benefits.

I am presently waiting for Mr. Ibarra to sign a privacy waiver so that ICE can share information about the details of his release and the DHS position more generally on incarcerating folks after immigration judges rule they are U.S. citizens.

DHS Falsely Imprisoning George Ibarra, U.S. Citizen, After Wrongful Deportations

On February 23, 2011 Department of Justice adjudicator Richard Phelps ruled in Eloy, Arizona that George Ibarra had by a preponderance of the evidence proven that he is indeed a citizen of the United States.

Rather than rely on this determination and apologize to Mr. Ibarra for previously wrongfully deporting him, the Department of Homeland Security (DHS) is holding Mr. Ibarra in solitary confinement at the Eloy Detention Center, in clear violation of the U.S. Constitution and a memorandum requiring Immigration and Customs Enforcement (ICE) to release anyone with "probative evidence" of U.S. citizenship.

Mr. Ibarra, 46, was born in Mexico but was raised since infancy in Arizona. In his late 20s he enlisted in the Marines and served three years on active duty, including time in Iraq, before being honorably discharged.

According to attorney Kara Hartzler of the non-profit Florence Project, Mr. Ibarra suffers from nerve damage sustained from time in combat as well as Post Traumatic Stress Disorder.

Moreover, his convictions, the trigger for him coming to the attention of ICE, were for actions whose criminalization is senseless in the first place, the sale of methamphetamines and the possession of drug paraphernalia, violations far less harmful than the government's kidnapping and false imprisonment of Mr. Ibarra.

In repayment for Mr. Ibarra's suffering in Iraq, Mexico, and now in the Eloy immigration prison the government's prosecutor Brett Day is appealing the adjudicator's decision and claiming that Mr. Ibarra's mother's U.S. Certificate of Citizenship and other documents that verify Mr. Ibarra's U.S. citizenship to the satisfaction of an immigration judge are not credible, arguments the adjudicator rejected:

The Court therefore concludes that the evidence offered ...to rebut the presumption of Alienage as occasioned by his foreign birth is both substantial and credible and sufficient to rebut that presumption. In the absence of any further evidence of Alienage from the Department, the Court must conclude that the removal proceedings must be terminate.

While Mr. Day's decision to appeal this decision may be very poor judgment, Mr. Day's failure to ensure Mr. Ibarra's immediate release from the Eloy Detention Center in its aftermath pending a final determination by the Board of Immigration Appeals is unlawful. ICE has a policy of not imprisoning anyone with probative evidence of U.S. citizenship, a standard that is lower than that of the "preponderance of evidence" for this found by the immigration judge.

The day that Mr. Phelps terminated Mr. Ibarra's deportation order on grounds of his U.S. citizenship was the day that the law required Mr. Day to ensure Mr. Ibarra's release from Eloy, as have other DHS attorneys in similar situations. By failing to do so Mr. Day raises very serious questions about his commitment to the rule of law and thus of whether the U.S. government should continue to put in his hands such life and death questions as the confinement of U.S. residents. ICE's negligence in failing to ensure Mr. Ibarra's release provides further evidence of the horrors that result when the government tries to distinguish U.S. citizens from "illegals" and deport U.S. residents on the basis of antiquated fantasies about birth and lineage.

UPDATE, May 4, 2011: DHS releases Mr. Ibarra!!! On May 3 DHS released Mr. Ibarra from the Eloy Detention Center. For details, click here.

Please note as well comments from anonymous ICE trial attorneys below suggesting that DHS is not legally obligated to abide by DOJ's analyses when evaluating whether someone in their custody has proferred "probative evidence" of US citizenship, a chilling claim that violates the letter and spirit of the John Morton memorandum of November, 2009 which states: "In all cases, any uncertainty about about whether evidence is probative of U.S. citizenship should weigh against detention." If an immigration judge's determines that a respondent has proven U.S. citizenship by a "preponderance of the evidence" and this does not create at least uncertainty of the respondent's citizenship claim in the mind of an ICE attorney, then this is evidence of a strong and unprofessional bias against respondents inconsistent with not only ICE rules but the rule of law more generally.

DHS at Princeton Rejects USCIS Efforts to Table Same-Sex Green Card Applications Pending DOMA Challenge, Obama Ignoring Civil Rights Violations

Yesterday's March 28 round table on "Deportations and National Security" organized by Patricia Fernandez-Kelly with the support of several Princeton University co-sponsors, moderated by the Pulitzer-prize winning Julia Preston who has been covering immigration law and politics for the New York Times, staged a conversation among high-level officials from the Department of Homeland Security (DHS), Princeton's pro civil rights congressman Rush Holt (D-NJ), several directors and leaders of national and local immigration and civil rights groups, as well as academic experts on deportation and immigration policy.

At one point, Princeton University graduate Josh Vandiver popped out of the audience, identifying himself as the "American half of a same-sex couple" involved in a high-profile fight for his spouse's green card. He was following up on Rep. Holt's questioning of John Sandweg, DHS Counselor to the Secretary, about whether, in light of Attorney General Eric Holder's announcement that his office's finding that the Defense of Marriage Act (DOMA) is unconstitutional the DHS would continue to deny U.S. citizens with same-sex spouses the same benefits of marriage green cards for their loved ones available to different-sex spouses, "what policy is being formulated that would respond to the activism we've done?"

Mr. Sandweg replied, "The president's directive is to enforce the law as currently written until a court decision. There are a couple of cases we are holding in abeyance, but we are going to enforce the law until DOMA is declared unconstitutional." His colleague Seth Grossman, Chief of Staff for the DHS Office of the General Counsel backed this up, "What the attorney general says is that as a litigation position he will not defend [DOMA] in court," but his decision "makes it crystal clear that the executive agency must enforce the law as it did before."

In saying this, DHS stepped on hopes raised by a story broken in the Daily Beast indicating that two regional offices of the United States Citizenship and Immigration Services were no longer rejecting marriage green card applications from same-sex couples, and would approve these pending authorization from the DHS:

Sarah Taylor, who heads the Washington district for USCIS, gave a presentation on Wednesday night to more than 100 members of the local AILA chapter. During a Q&A session afterward, she was asked whether her office had put cases involving same-sex marriages on hold. Taylor said that it had, according to Brenda Oliver, the AILA chapter’s chair. The lawyers in the room, Oliver added, responded with claps, smiles, and cheers.

Her colleague Greg Collett who runs the Baltimore regional office said the same, the story reported.

The fact that government attorneys running these agencies contemplated the approval of same-sex green card applications suggests that the directive is not "crystal clear" in requiring DHS to violate the civil rights of same sex couples, but that the agency is making a political decision, one that would only be made at the behest of the White House.

[UPDATE confirming DHS plan to overturn USCIS abeyances: see Tuesday article in Metroweekly, "DHS Official: Bi-National Immigration Case Abeyances Could End Within a Week."]

This was just one very obvious example of the Obama White House failing to take advantage of its discretion to decrease deportations and increase the protection of U.S. residents' civil rights that drew concern, eloquently articulated by Lucas Guttentag, founding national director for 25 years of the ACLU's Immigrant Rights Project, and now a Robina Foundation Distinguished Senior Fellow in Residence at Yale Law School.

In response to frequent statements by the DHS officials that they were bound to "enforce the law" Guttentag pointed out that in light of DHS discretion and the absence of any immigration legislative reform in the near future that might incentivize bumping up numbers in order to attract Republican support, the harsh policies were pointless: "If one thought comprehensive immigration reform were around the corner," massive arrests and deportation might make sense, "but given there is not going to be significant legislative reform what's the role of presidential leadership on this issue?"

Guttentag added later:

It is a mistake for the administration to view this solely as a matter of legislation. [The DHS] could adopt regulations on the adjudication of waivers so people could safely apply for the immigration status for which they are eligible. They could adopt court interpretations to get individual hearings at which their danger and flight risks are adjudicated.

Of course even these high-ranking DHS officials were not the right audience for his astute insights and suggestions. They were not making these decisions. The White House is. If Obama wanted the DHS to use its discretion, Sandweg and Grossman would be in Princeton making the sort of announcement their counterparts at the USCIS were making. (The USCIS has to defer to the DHS Office of General Counsel instruction and they were the ones in Princeton saying, forget it.)

The fact that people such as Guttentag and Rep. Holt were having this conversation at a Princeton roundtable and not in the White House was perhaps the most discouraging takeaway from the event. An activist who attended and has been to these White House meetings said the relevant staff in the White House listen but no one is supporting their proposals. The individual lacks "confidence that meetings at the White House are useful to move proposals forward."

That the Obama administration is not taking advantage of its ability to protect civil rights by virtue of running the government, and is indeed going in the opposite direction by using its discretion to implement nationwide the InSecure Communities program by 2013, means that Obama is focused on a craven calculus of his re-election, and not the civil rights of millions of people whose lives are being crushed by his policies.

Thursday, March 3, at Ohio State University Mershon Center

I'll be giving a talk sponsored by the Mershon Center for International Security Studies.

The title of the talk is "Enhancing Security through States Without Nations."

For location and other details, please go here.

The talk is part of the Mershon series Ideas, Identities and Decisional Processes that Affect Security.

Looking forward!

UNROW Law Clinic Fights for David Johnson's U.S. Citizenship

On January 25, 2011 Angad Singh, a third-year law student at the American University Washington College of Law, appeared before three judges in the Fourth Circuit Court of Appeals in Richmond, Virginia and asked them to end the government's 20 year harassment and unequal treatment of David Johnson, who automatically derived U.S. citizenship through his father, who had sole legal custody of David and naturalized when David was eight years old.

UNROW's two main arguments are that the government's latest action, stemming from a 2004 ICE detainer and 2008 Notice to Appear, resulting in Mr. Johnson's incarceration in Batavia for the last two years, is violates David's equal protection right against discrimination based on his parents' marital status at the time of his birth. UNROW is arguing that the current proceedings also violate the principle of res judicata -- a need for finality at odds with the perpetual relitigation of the same issue.

Mr. Singh recounted Judge Roger Gregory's queries about the equal protection issue:

Judge Gregory asked the government whether they're purporting to implement a policy that punishes children for the nonmarriage of of their parents. 'In my day we called these kids bastards,' he said.

Mr. Singh also mentioned Judge Gregory pressing the government on whether, in light of the Child Citizenship Act of 2000 the government can now claim an important government interest in the older legislation. In other words, although citizenship laws are not retroactive, constitutional protections rely on current norms and current norms are inconsistent with the statute the government is now defending. Mr. Singh said:

The judge asked, how can you still promote this kind of view and defend this thing in court even when the statute has changed? In 2000 the Child Citizenship Act got rid of this. How can the government still have same important government interest under equal protection, how can it still be relevant?

Mr. Singh is part of the UNROW Human Rights Impact Litigation Clinic and has been working with the supervising attorney Erin Louise Palmer, the Clinic director, Ali Beydoun, and several other students (including Brenda Robles and Rachel Zoghlin) on obtaining Mr. Johnson's freedom.

BACKGROUND
David Johnson, now 46, was born in Jamaica and was in the sole legal custody of his father, Ronald Johnson, since shortly after his birth. His mother, who has a different last name, in 1966 signed a document indicating that she "voluntarily gave his father Ronald Johnson custody of David from the year 1965." David and his father entered the U.S. as legal permanent residents in 1972 and in 1973, Ronald became a naturalized U.S. citizen and thus, according to two immigration adjudicators in prior removal hearings (Kevin McHugh in 1992 and Jimmie Lee Benton in 1998) David derived citizenship from him at that time.

Typical of cases in which foreign-born U.S. citizens are racially profiled for removal after serving prison sentences, David was, for a THIRD time put into deportation proceedings in 2004.

The government is claiming that the terminations on previous occasions only indicated that the government had not proven David's alienage, not that the adjudicators had affirmed David's U.S. citizenship. (See govt. brief here.) Their substantive argument references precedents with significantly different fact-patterns (Nehme v. I.N.S. 252 F.3d 415 [2001] and also Afeta v. Gonzales, 467 F. 3d 402 [2006]).) In these two cases federal courts held that the INS requirement for a "legal separation" applied as well to parents who had never been been married but de facto separated. In other words, the judges affirmed that Congress has the prerogative to impose on unmarried couples jointly raising children the requirement of being legally married in order to most easily effect a "legal separation."

The government brief states: "The immigration judge determined that 'legal separation' under INA section 321(a) required 'a judicially recognized marital separation and, by implication, a marriage.' JA 133 (citing Afeta v. Gonzales, 467 F.3d 402 (4th Cir. 2006))."

The UNROW response (see brief here), is that "A marriage requirement cannot withstand intermediate scrutiny because the governmental interests at issue cannot be advanced by the distinction between children of married and unmarried parents."

And UNROW objects on Mr. Johnson's behalf as well to the government initiating removal hearings even after two immigration adjudicators issued final decisions terminating removal proceedings on prior occasions:

DHS is precluded from relitigating Mr. Johnson‟s citizenship because Judge Benton determined this identical issue and the determination was critical to the judgment in the 1998 proceedings. The government had a full and fair opportunity to litigate the issue of Mr. Johnson‟s citizenship and chose not to pursue an appeal. Issue preclusion bars the government from relitigating the same issue that was fairly decided in 1998. See Ramsay v. INS, 14 F.3d 206, 211 (4th Cir. 1994) (applying issue preclusion against a respondent in removal proceedings where all of the elements of issue preclusion were satisfied).

To the government's claim that the denial of Mr. Johnson's N-600 application (his attorneys assert this was unconstitutionally decided as well) and that the previous decisions did not prove Mr. Johnson's U.S. citizenship, Mr. Singh said in our interview:

Citizenship was the only issue at the prior hearings. We know that from the transcripts, and it was the only cited reason in the termination order. So it must have been decided. We argue [citizenship] was the only issue in dispute and they terminated the hearing; the syllogism is complete.

ADDITIONAL PROBLEMS
One additional potential problem with the government's position is that it is backed up by precedents associated with different fact-patterns than those Mr. Johnson's biography presents.

8 U.S.C. §1432(3) in effect when Mr. Johnson was born states he would derive U.S. citizenship as an operation of law when there was "[t]he naturalization of the parent having legal custody of the child when there has been a legal separation of the parents."

The interpretations of this section in the cases the government cites suggest Congress contemplated situations only with both parents having de facto custody for a significant period of the potential U.S. citizen's childhood or de jure -- including the de jure parental status of an absent but legitimate father.

But David Johnson's mother had neither a de jure nor de facto relationship with him, having relinquished legal and physical custody when David was an infant and having never married his father.

In this scenario, one wonders whether the statute's application here fails even the rational basis test. How can the government expect a father who since the child's infancy has had sole de facto custody to have married and divorced the child's mother?

It is one thing to say, okay, you parents who are living together in a common law marriage should straighten up your legal relations so they fit the facts of your actual living situation. This is of course very problematic as well as unconstitutionally discriminatory for the reasons stated in the UNROW brief. But it seems not just unequal but ludicrous for 8 U.S.C. §1432(3) to require parents to marry when one of them has relinquished legal custody of the child and the parents have no shared domicile or other arrangements between them.

UNROW has a betting pool on when the Fourth Circuit, known, they tell me, as the "rocket docket," will issue its opinion. The money is on a few weeks to two months.

Photo appears courtesy of a Creative Common license and was taken by Andrew Bain Taber.

More On Today's NY Times Opinion Piece on House Size

The opinion piece in today's New York Times I co-wrote with Dalton Conley, arguing we should increase the House size, is based on research I did just after the 1990 census. (I submitted a long-lost piece to the Times then but they declined. Maybe it was because I was a graduate student or maybe 100 years since an increase is worth noting but not the mere 80 years at that time.)


update 5:30 pm: "Talk of the Nation" has the link from today's segment on the opinion piece here.

A few additional pieces of information that didn't make it in:

1) Following the 1920 census, not only did Congress stop increasing the size of the House, they actually violated their constitutionally-mandated duty to reapportion altogether!

For the first time, the census showed more people living in urban than rural areas, and legislators feared the shift, another example of how paranoia about "foreigners" causes people to themselves violate the rule of law. As Edgar J. Hoover's agents were violating the constitution's fourth and fifth amendments pursuant to deporting alleged Communists and anarchists, Congress was violating the right of all Americans to equal representation, not to mention ignoring one of the few affirmative duties the founders assigned it.

In 1928, after President Calvin Coolidge threatened to veto future legislation until this was fixed, the House agreed to a formula for shifting seats around, contemplating as well an increase to 485 members. But with the 1930 census around the corner, legislators held off because they already had the formula for redistributing 435 members and wanted to avoid further delays. They never contemplated that the number would remain fixed at 435 for an entire century.

2) The actual change in representation may be more dire than the one published. That's because the original denominator includes slaves, albeit counted as 3/5 an inhabitant, and women. Of course neither could vote. The passage of the 19th amendment in 1920 doubled the size of the electorate, at exactly the time that Congress failed to increase its size and representativeness.

In the event, if a civics lesson in the New York Times contributes in a small way to a national conversation about a rather glaring, and easily remediated, defect in our representative democracy that would be terrific.

EOIR Attorney Conceals Memorandum With Evidence of Unlawful Restrictions on Media Access

NOTE THE DOCUMENT BELOW IS PRODUCED AFTER EOIR RECEIVES FOIA REQUEST. EARLIER RESPONSIVE DOCUMENT(S ) CONCEALED.


Among the many causes of the government unlawfully deporting U.S. residents, including U.S. citizens, is the effective secrecy in which many immigration hearings are conducted. (For more on this, please see "Lawless Courts," The Nation, October 20, 2010.)

A misconduct complaint I submitted on Monday, December 6 to the Department of Justice (DOJ) Office of the Inspector General (OIG) describes an unlawful policy reported to me by immigration court staff across the country. According to a policy of the Executive Office of Immigration Review (EOIR) Office of Legislative and Public Affairs (OLPA), court staff nationwide are asked to detain media representatives attempting to enter open hearings until receiving permission for their entrance from EOIR's public affairs office.

My misconduct complaint alleges violations of 8 CFR 1003.27 - Public access to hearings;18 USC § 2071 - (Concealment, removal, or mutilation generally); and serious administrative misconduct (wanton disregard for agency procedures for implementing 5 USC § 552, Freedom of Information and Privacy Act).

The OLPA policy is unlawful and so was EOIR OLPA Counsel Lauren Alder Reid's concealing from the EOIR's FOIA staff at least one memorandum providing evidence of it. (Late Monday I sent Ms. Reid and her colleagues a copy of the misconduct complaint, indicated I would be posting it on my blog, and asked if they wanted to comment on it. I have not received a reply.)

Pieces of the media monitoring policy are laid out in a memorandum that was issued under the name of Lauren Alder Reid, Counsel for OLPA, and, according to notes from my transcription while inspecting the document, "updated August 14, 2009." I had this document in mind and described it when I submitted the August, 2010 FOIA request.

This memorandum describes a policy whose implementation requires EOIR court staff detaining court visitors in order to ascertain if they are with the media. Especially troubling is that, according to FOIA staff, Ms. Reid concealed its existence from that office, which in turn failed to produce it in response to a request I filed in August.

(The EOIR FOIA office forwarded to Ms. Reid a FOIA request I submitted describing the document in question. In fact, Ms. Reid herself told me to request the agency policy through the FOIA process. Rather than produce the incriminating document, Ms. Reid, after a considerable delay, submitted to her colleagues a document that was produced AFTER the EOIR received my FOIA request and withheld from her colleagues the memorandum in question, one that she herself appears to have written and circulated.)

As I noted earlier, the EOIR's own misconduct complaint process is a sham, and indeed those administering it are themselves violating the rules that require government employees to direct evidence of serious misconduct to the DOJ OIG or Office of Professional Responsibility (OPR). Thus, EOIR stakeholders are best served by filing their complaints directly with these agencies.

28 USC 0.29c(a) states: Reporting to the OIG. Evidence and non-frivolous allegations of criminal wrongdoing or serious administrative misconduct by Department employees shall be reported to the OIG, or to a supervisor or a Department component's internal affairs office for referral to the OIG, except as provided in paragraph (b) of this section.)

"b"is similar, but requires reporting adjudicative misconduct, i.e., immigration judge misconduct, to the OPR, something MaryBeth Keller and other supervisors, including Gary Smith, fail to do. (Mr. Smith is the guy who has been covering-up for William Cassidy in Atlanta, including ignoring requests from the FOIA staff, itself serious administrative misconduct.)

For other experts recommending sending complaints about immigration judges to the OPR and not the EOIR, please read "The Immigration Judge War," a chapter from a textbook on the immigration courts.

Jonathan D. Montag and Socheat Chea write:

Although the Office of the Chief of the Immigration Judge (OCIJ) also accepts complaints of judicial misconduct,44 it appears the more effective practice would be to submit allegations of misconduct to the OPR. The EOIR stated at an AILA liaison meeting that the OCIJ will make its own preliminary assessment, and if it determines that the charges have substance, only then will it refer the complaint to the OPR. An immigration practitioner’s best approach is to file the charges with OPR, since it is separate from the EOIR branch.

Shockingly, as I learned from a FOIA response from the OPR, even when the EOIR finds that charges are non-frivolous, it still fails to comply with the law and withholds this evidence from the OPR, allowing EOIR supervisors to arbitrarily protect and punish its employees without the oversight Congress mandates.

The EOIR also withholds evidence of serious administrative misconduct from the DOJ OIG, something I learned from the OIG desk attorney last Wednesday when she insisted that the EOIR was not part of the DOJ but part of the DHS, an inference that makes sense de facto but was surprising to hear from a DOJ attorney.

(As this had been misinformation conveyed by a high-ranking DHS official to me with similar confidence on a previous occasion I had a certain ethnographic curiosity about this confusion. I told the DOJ OIG desk attorney the EOIR really was part of the DOJ and said I wanted to understand why she thought that the EOIR was part of the DHS. "Because it is," she snapped, and then said, "Have a nice day" and hung up the phone.)

In the event, the misconduct complaint against Ms. Reid is here, perhaps to be investigated by the attorney who thinks the EOIR is part of the DHS, .

Exhibit A ("Lawless Courts") is here.
Exhibits B and C (email concerning events at Falls Church immigration courts, June 23 and 24)
Exhibit D (August 10, 2010 FOIA request text file, omitting personal contact information)
Exhibit E (EOIR FOIA response with document produced September 9, 2010)

I realize that the details of all this are too arcane for most people but am posting this because it may be useful for a few, especially researchers, journalists and civil rights activists encountering similar unlawful obstructions and obfuscations.

Immigration Judge in Bed with DHS: Not Just a Metaphor

I received an email today from an immigration law practitioner in Colorado pointing out yet another strange understanding of justice on the part of the Executive Office of Immigration Review and the Department of Justice: hire an immigration judge who is married to a high-ranking Department of Homeland Security prosecutor in the ICE Denver field office, the same one where the newly appointed adjudicator was an assistant chief counsel.

Hard to understand how justice can be blind when the new Denver immigration judge Eileen Trujillo is not only a former DHS prosecutor but also married to the ICE Deputy Chief Counsel in Denver, Donald O'Hare.

Here's the message from the practitioner:

"Here in Denver, a new immigration judge has been hired and will begin taking cases in December 2010, Judge Eileen Trujillo. Although she may be an excellent judge, there is a major concern about her on the bench that EOIR seems to fully be ignoring. That is: She is married to the #2 in charge for the Department of Homeland Security, government counsel.

Yes, the incoming judge is sleeping with the boss of the government prosecutors and that is apparently not a conflict for EOIR. I don't know how, since it is one of the most transparent and visible conflicts in all of the law. Apparently all fears should be allayed by the verbal assertion by the new judge and her husband that they will not work on cases that are in front of each other. Huh? Impossible! He reviews ALL cases as a supervisor and her conflict can reach the whole bench here in Colorado.

The story remains to unfold--someone from EOIR's Chief Judge office is coming to speak to AILA here soon, but like I said, cases are already scheduled before the new judge. For all intents and purposes, immigration lawyers may be forced to one-by-one request the judge to recuse herself from their cases and face the wrath (by all sides) for their requests."

Update on Law-breaking and Misconduct at the Atlanta Immigration Courts

The Executive Office of Immigration Review (EOIR) has been on notice for quite some time that its adjudicators have been obstructing access to the immigration courts in Atlanta and also destroying evidence of this.

This post
- publishes a recent misconduct complaint I submitted to the Department of Justice (DOJ) Office of the Inspector General (OIG) and the Office of Professional Responsibility (OPR), and the context for this;

- links to the Twitter account for Professor Vincent Lloyd, who has been attending hearings at the Atlanta Immigration Courts in the last few weeks; and

- reports information from respondents appearing in William Cassidy's court quoting him indicating his impending retirement, even though he is under the normal retirement age for federal employees.

MISCONDUCT COMPLAINT
Instead of forwarding the information about serious employee misconduct to the DOJ or the DOJ OPR as required by law (28 USC 0.29c(a) and (b)), longtime EOIR supervisor MaryBeth Keller, responsible in recent years for supervising misconduct investigations of immigration judges, has swept these under the rug, prioritizing agency face-saving over protecting the rights of indigent respondents.

The statute states:

Evidence and non-frivolous allegations of criminal wrongdoing or serious administrative misconduct by Department employees shall be reported to the OIG, or to a supervisor or a Department component’s internal affairs office for referral to
the OIG, except as provided in paragraph(b) of this section.
(b) Reporting to the Department’s Office of Professional Responsibility (DOJ-OPR).
Employees shall report to DOJ-OPR evidence and non-frivolous allegations of serious misconduct by Department attorneys that relate to the exercise of their authority to investigate, litigate, or provide legal advice.

According to EOIR data posted online, dozens of complaints were received that would appear to meet the level of providing evidence of serious misconduct by up to 88 immigration judges last year, but, according to reports I received from the OPR, no one from the EOIR passed these on to the OPR.

(Ms. Keller and other middle management bureaucrats supervising immigration courts have the job title "Assistant Chief Immigration Judge," another symptom of the EOIR's pomposity and opacity -- most of these individuals do not hold any hearings or issue opinions. Perhaps the more accurate title would be Assistant TO THE Chief Immigration Judge but such directness would be an agency anomaly.)

In a delightfully revealing comment during our June, 2010 conversation about the agency's cover-up of Atlanta adjudicator William Cassidy's misconduct, Ms. Keller said, in a sing-song voice a parent might use when catching a child in hide-and-seek, "I can hear you typing," interrupting her speech about the EOIR's new commitment to transparency. (I kid you not.)

In the event, in light of her and Acting Director Thomas Snow's prioritization of public relations over enforcing the rule of law, over the next few weeks I will be passing on information to the OIG and OPR myself, and sending these misconduct complaints to the respective state bar associations as well as posting them here.

ORIGINAL DOCUMENTS HERE:
Complaint 11/21/10
Exhibit A (cover letter on destroyed docket information)
Exhibit B (docket with missing cases)

The first misconduct complaint documents long-standing access problems at the Atlanta Immigration Courts, including my colleague Vincent Lloyd's recent encounter with adjudicator Wayne Houser. Mr. Houser told Dr. Lloyd that he could not attend an asylum hearing, but did not indicate the legal reason for this.

(As the complaint points out, EOIR rules indicate asylum hearings are open to the public unless the respondent requests a closed hearing; according to Professor Lloyd, Mr. Houser did not indicate that the respondent had requested a closed hearing.)

Professor Lloyd has been attending hearings in Atlanta during the last few weeks and will be episodically reporting in real time the dockets for each day, so that anyone interested in observing hearings for detained respondents in particular might be on notice to attend. (These are generally in the morning and at this point are for people being bussed in from Etowah, Alabama and northern Georgia; hearings for respondents locked up in Stewart are largely being handled by the adjudicators in that facility.)

Mr. Houser has an exceptionally high rate of denying asylum claims (83%, according to TRAC), meaning respondents are more at risk from him failing to follow due process--more likely if the hearings are held in secret--than from a foreign agent impersonating Professor Lloyd for the purpose of harming the respondent or her family (preventing this being the goal of the asylum rule on requesting closed hearings is to prevent this).

DING-DONG? CASSIDY RETIRING?
In the last couple of months I have received two independent reports from people who reported to a third party via telephone and email (forwarded to me), respectively, that Mr. Cassidy announced to respondents in October that he will be retiring at the end of November.

On hearing the first report, I contacted the EOIR and also sent an email to Mr. Cassidy informing them of this report and indicating that I was intending to publish this information and was requesting their comment. I also pointed out that it appeared that the only justification for this retirement would be if the EOIR had fired him.

(Federal employees typically must be 55 before they retire; however there is an exception, among others, for employees who are under 55 and have worked for the federal government at least 20 years, as is the case for Mr. Cassidy, and have an "involuntarily separation," typically following poor performance reviews.)

I received an unsigned reply from the EOIR instructing me to file a FOIA request--comical in light of the agency's frequent failure to reply to these--and no reply from Mr. Cassidy.

Professor Lloyd informed me that in recent weeks Mr. Cassidy was not listed as holding hearings on a few occasions when Professor Lloyd had stopped by and that there was no docket posted for Mr. Cassidy in Atlanta on Friday, November 19, though other adjudicators were holding hearings.

POSTSCRIPT:
Why is the EOIR's Office of General Counsel persecuting immigration attorneys who prevail in the federal courts or otherwise embarrass the immigration judges? More on this to come.

Talk Wednesday at University of Chicago

The talk will discuss and respond to questions about the States Without Nations: Citizenship for Mortals. It is Wednesday, November 10 at 4:30 p.m., free and open to the public.

The Franke Institute for the Humanities
The University of Chicago
1100 East 57th Street, JRL S-118
Chicago, Illinois 60637

For more information, you can look here.

Other book news: the first review, by Elizabeth Cohen, appeared last month in the American Political Science Association's Perspectives on Politics.

Columbia University Press will be reissuing States Without Nations in paperback in the spring, 2011.

New FOIA Documents: EOIR Performance Awards and Raises for 2008-2010

Excerpt from letter by man William Cassidy ordered deported, dated October 14, 2010, sent from a respondent held in the Stewart Detention Center to me.

UPDATE: 10/22/2010 "Lawless Courts" exposé of immigration court injustice in The Nation, by Jacqueline Stevens (print date November 8, 2010).

"WHY IS THIS MAN STILL PRACTIC[ING] LAW...AND HOW [HAS] HE BEEN ABLE TO GET AWAY WITH ALL THIS"
The quick answer is that even though the Executive Office of Immigration Review (EOIR) has been receiving misconduct complaints about William Cassidy since the 1990s, they keep him on because he used to work with the folks who are charged with investigating these complaints in then-Immigration and Naturalization Service headquarters, AND, he's good at kicking out of lots of U.S. residents very quickly, i.e., he is "efficient."

The documents linked below are here because I'd heard that the EOIR, the component of the Department of Justice (DOJ) that runs the immigration courts, relies on purely quantitative performance measures, like much of the rest of the federal government and many other institutions as well.

I wanted to understand how the anecdotal reports from current and former EOIR staff about "cash prizes" and days off being given to Board of Immigration Appeals staff for cranking out decisions -- with no special awards for thoughtful, intellectually careful decisions -- followed from the agency rules. (BIA decisions are initially drafted by EOIR staff attorneys and BIA members are under pressure from middle management not to make changes. According to a former EOIR employee with first-hand knowledge, the staff actually establishes the initial position and then sends it on to the Board members for rubber-stamping.)

In the event, in July, 2010 I filed a Freedom of Information Act (FOIA) request for policies governing their performance awards and raises, as well as individual level data about the recipients of these awards and raises.

A couple weeks ago, I received a genuinely responsive response in three parts. (Meanwhile, the top staff at the EOIR are violating the FOIA and Privacy Act statute and not responding to document requests on my behalf made by their FOIA staff. I will describe the details of what is being withheld in another post.)

I have not had time to review these documents carefully but wanted to post them so others could take a look. It is very important to note that although adjudicators (immigration judges and Board of Appeals members) are officially exempt from achievement awards based on "efficiency, effectiveness, and economy," in fact these individuals are literally, as the list of awards itself reveals, and otherwise affected by these standards.

That's why I put the excerpt from a Cassidy respondent on top. It asks the right question, which is not "why is Cassidy a kook?"-- who cares? --but, to paraphrase, why are the EOIR top brass not firing this kook?

One piece of this answer is that he goes way back with these folks but another is that the EOIR, as part of a law enforcement agency, is more influenced by the numbers than anything else. As long as Cassidy and J. Dan Pelletier, also in Atlanta and also a former INS prosecutor, are churning people out of the country at a rate 15% higher than their colleagues at other detention courts (TRAC data) that's an index of "efficiency, effectiveness, and economy" their bosses appreciate in itself and because it keeps the folks in the DOJ and Congress concerned about case backlogs off their backs.


Part I: EOIR Administrative Manual: Awards
18-page document with criteria for awards. (Hard copy sent, scanned and saved as pdf.)
"Special Achievement Awards are designed to reward employee efforts in improving Government efficiency, effectiveness, and economy" (pp. 1-2).

Part II: EOIR Employee Performance Awards, FY 2010 to date, and FY 2008 and 2009
213-page print out showing amounts paid and days off.

UPDATE 10/22: A former EOIR employee writes in an email, "Yep, pp. 1- 9 and 99-114 are BIA attorney-advisor perf. awards," meaning the EOIR staff who churn out the BIA decisions that are largely rubber-stamped by Board members. This helps explain why so many of the decisions on complex cases I've seen simply ignore the respondents' arguments. Faster to affirm the government attorneys in DHS and DOJ than to seriously research the legal arguments made by the respondents.

As far as the report details, I was struck by the fact that Cynthia Long, the Atlanta Court Administrator, received a relatively large performance award (27 hours or three days paid vacation compared to one day for others) even though her court has been described to me by other court administrators as "the worst" -- one EOIR official who works in a Pacific Standard Time detention facility said that the Atlanta court was notorious for lenghthy delays in forwarding respondent files, resulting in respondents being locked up far longer than they should be simply because the file was not available for review in that court.

Two other points stood out on quick inspection. One was that some courts were receiving a much larger share of these award goodies than others. And another was that despite the policy exempting immigration judges and Board members from performance or other bonus awards based on their adjudicative work, a few immigration judges did receive significant bonuses ($7,000). The EOIR did not release any additional information that would explain how they assess nonadjudicative work by their adjudicators.

I'm guessing once EOIR staff take a look at this they'll have some questions and answers of their own.

Part III. Quality Step Increase Performance Awards
98-page document showing salary adjustments with civil service rank.

This is going to be a snoozer for all but the most dedicated EOIR junkies, but EOIR employees may enjoy taking a peek. (The GS levels refer to the different civil service levels, with GS15 the highest.) These are really the most significant financial rewards because they change an employee's base pay.

TV Bonus: Democracy Now coverage of Nation article, aired Friday, October 22, 2010.

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

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

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

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

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

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

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

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

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

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

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

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

Drawing from recently obtained immigration court records, this is the fifth of five pieces describing how U.S. immigration agents turned a Canadian couple's vacation into a nightmarish trip through the labyrinth of immigration deportation proceedings. Part I here; part II is here (arrest in Sweetgrass, Montana); part three here (first immigration court hearing), and part four is here (second immigration court hearing). For entire series, click here and read from bottom up.

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

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

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

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

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

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

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

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

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

Ms. Fobbs replied:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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