ICE Still Detaining and Deporting US Citizens, And Still Lying About It

On June 7, 2013 an immigration judge terminated deportation proceedings for a 54 year old United States citizen who had been locked up without a lawyer for 14 months, one of three individuals to contact me in the last two weeks from Houston, SPC.  

ICE and the Corrections Corporation of America that held Mark Lyttle in 2008 are still holding US citizens.

The full letter from FS I received yesterday is here, redacted because he has not given me permission to publish his name.  It is just a page.  Anyone who thinks Mark Lyttle's case is a one-off should read this letter and then read why this is still happening.  As long as poor U.S. citizens of Mexican descent, or the perception they are of Mexican descent, are locked up, ICE is going to be falsely imprisoning and banishing U.S. citizens.

 On April 29, 2013 The New Yorker published an article by William Finnegan "The Deportation Machine" about Mark Lyttle's deportation to Mexico.  (More later on Finnegan's plagiarism of my work, and the New Yorker's bizarre apology and inadequate efforts at redress.)  John Morton, Director of Immigration and Customs Enforcement, replied indignantly to the article, claiming new "stringent safeguards to protect against the possibility of a citizen’s detainment or removal..."

As soon as I read Morton's inventions, I knew that I would again need to start documenting U.S. citizens being detained and deported.  ICE is lying today just as they did when I first started doing this research in 2008.  ICE propagandists have gone from denying that it ever happened -- that was the company line in 2008 and 2009 -- to now saying that they stopped doing this.

Alas, it was as easy to do this last month as it was in 2008 to 2011.

Daniel (not his real name)
 A few weeks ago I came across an April,  2012 Board of Immigration Appeals (BIA) decision affirming the appeal of a respondent who was indignant that EOIR adjudicator Jimmie Benton refused to recognize his claim for U.S. citizenship because he did not know the law on this. 



I called the locator system, learned Daniel was still detained and wrote him a letter.  The letter was properly addressed but not accepted by the CCA mail room because my research assistant had not used an "alien number" on the envelope -- on what legal grounds can CCA refuse a properly addressed piece of mail just because it lacks some weird code they use and that most people cannot obtain unless they are able to contact the person they are writing?

In the event, Daniel had just had the remanded hearing, again before Benton, who didn't understand the law in 2012 and still didn't understand it in 2013.  Daniel told me over the phone just before he was deported that Benton said that he would only terminate proceedings if Daniel could produce a Certificate of Citizenship, something that costs $600.  Daniel is indigent.  He told me that it took several months for his request for a fee waiver to be approved and he was still waiting on the final Certificate.  He had all the necessary underlying documents but Benton refused to consider them.   (FS also did not have a Certificate of Citizenship but in his case the IJ relied on the underlying documents and on that basis terminated the proceedings.)

(To be clear, a Certificate of Citizenship is NOT a requirement for U.S. citizenship.  Anyone who is a U.S. citizen by birth has that status because of meeting the underlying criteria, e.g., birth in the United States or birth outside the U.S. to a parent or parents who are U.S. citizens.)

A few days after public affairs in Houston was alerted to my request to speak with Daniel, he was shipped out to Juarez, Mexico.  There he will be facing the same problem that Andres Robles encountered after ICE deported him to Mexico in 2008.  Three years later he was sent a letter, care of his lawyer, saying that his application for the Certificate of Citizenship had been approved but that it would be impossible for Andres to pick it up because, the USCIS Field Office Director acknowledged, the government had deported him.    (In the last few weeks, thanks to the persistence of his sister, Maria, Andres obtained the representation of Andrew Free of the Ozment Law Firm and will be filing a civil rights lawsuit against the thugs who falsely imprisoned and then banished Andres.)

Robert (not his real name)
Robert's situation is somewhat more complicated, not because of anything he did but because he lives in a primitive era of ethnic cleansing, such that his mother and grandfather were treated by their government as foreigners and not the U.S. citizens they really were.

Robert's great grandmother was born in Texas in 1902, and her father and mother also were born in Texas.  She lived in Mercedes, Texas but gave birth to her son, Robert's grandfather, Gino, in Mexico.  Gino was by law a U.S. citizen at birth but instead of being recognized as such, when he entered the United States he was given a green card and then later, long after his daughter,  Robert's mother Rachel was born, became a naturalized U.S. citizen.

Rachel then also grew up with a green card.  I've spoken several times with her and Robert. They had hired an attorney but he didn't understand the possibility of the acquired citizenship.  Robert has a forthcoming hearing.  Meanwhile we are trying to assemble the documents underlying these claims so his attorney can present the probative evidence that should trigger his release.  This is actually the responsibility of the U.S. government--Morton's 2009 memorandum requires ICE to conduct investigations into claims of U.S. citizenship.  His family's green cards and naturalization means all the underlying birth certificates and marriage certificates are already in the Citizenship and Immigration Service database, but Robert's been locked up for over a year.  He said his deportation officer did nothing to help him.

Robert and Daniel have signed privacy waivers and we will be obtaining their files shortly. I also will be writing to FS and will be asking him to sign a waiver as well.  Hopefully we can find an attorney who will help him hold the government accountable for his false imprisonment as well.  (FS had already been through this once in 2004 when an IJ then as well terminated the deportation order.)

As I've been writing, the only way to follow the U.S. Constitution and prevent U.S. citizens from being in the unlawful custody of ICE is to provide all detained respondents assigned attorneys.  As these cases show, generations of racial profiling have deprived people the status and thus knowledge of their U.S. citizenship. The U.S. government has been stripping people of their U.S. citizenship and has an obligation to stop doing this; that's only possible if everyone in these ICE jails has an assigned attorney.

Finally, it is urgent that we not lose sight of the big picture: the borders of the nation-state are arbitrary and it is as ridiculous to restrict our movement on their basis today as it was to confine people to parishes in England and transport them to America when they were caught in London without a pass.

The reason I focus on the detention and deportation of U.S. citizens is the same reason that slavery abolitionists supported criminal prosecutions for the especially brutal treatment of slaves.   The prosecutions forced the public to think about what slavery looked like in practice.  The unprovoked shootings of slaves and detentions and deportations of U.S. citizens are expressions of these respective institutions when they are doing what they are supposed to do, and not rare aberrations.   Slavery and deportations are barbaric; it is as impossible to deport people without unlawfully harming respondents, including U.S. citizens, as it was to have slavery without unjust, horrifying violence.

Guatemalan Locked Up for One Year to Win Right to Attorney in Deportation Proceedings

The docket information for a Guatemalan respondent who had appealed his deportation order based on his need for an attorney was recently released by the Executive Office of Immigration Review following FOIA litigation. The respondent also was released from custody, after being locked up for about a year.

The docket information on the case locator system used by the Executive Office of Immigration Review shows more evidence of the incompatibility of the deportation machine with the rule of law.  In January, 2012 the respondent requested an attorney and to be released from custody.  Unfortunately the respondent had the bad luck of  appearing before Sylvia Arrellano, who ignored his entreaty for a hearing on his asylum claims and ordered him deported to Guatemala.

The respondent in Matter of CB appealed and won, but it took a year.

As the docket shows, after the case was remanded in August, 2012.  Then it took more than a month before a new master calender hearing.  A new full hearing is scheduled for January, 2014, 2 years after the respondent was first taken into ICE custody.

The record here is not clear on the terms of release, if any.  UPDATE: sorry, worked on this late last night and just noticed that docket indicates the respondent has been released!  Somehow it took a year for this to happen.  The case was assigned to immigration judge Dana Marks in San Francisco. It's still unclear how this happened because  no new bond hearing is noted. The information here is consistent with a) the DHS unilaterally changing the terms of custody; b) poor record keeping.

Meanwhile, two Guatemalans committed suicide this spring at the nearby Eloy Detention Center.

For background on the FOIA litigation behind obtaining this, please go here.  Thanks again to Andrew Free of the Ozment Law Firm and Sam Niiro, Northwestern Class of 2016 and Deportation Research Clinic FOIA specialist.

Federal Judge Orders Top Immigration Court Officials Stand Trial for Civil Rights Violations, Orders Discovery

On June 4, 2013, Judge Orinda Evans, Northern District Court, Georgia, issued two orders in the cause of government transparency, in particular recognizing the rights of the public and the media to attend immigration hearings.  Judge Evans is granting my attorneys' motion to enter an amended complaint, one holding accountable in their individual capacities for monetary damages top officials at the Executive Office for Immigration Review.  And she opened discovery.

This order is relevant for anyone who has filed a misconduct complaint with the federal government and has preliminary evidence to suggest that supervisors assigned to investigate are trying to coverup and not reprimand misconduct by agency employees.

In the context of the EOIR, Judge Evans decisively swatted away the claims of judicial immunity:

For example, not only does Plaintiff allege her rights were violated by the decision, on the relevant days, to exclude her from the courtroom, but she also alleges due process violations and a civil conspiracy to cover up her removal and exclusion. Included in these counts are claims based on incomplete responses to her FOIA requests, and a claim that Keller and Smith, assistant chief immigration judges based at EOIR headquarters in Virginia, failed to properly investigate her administrative complaint. Surely. the government is not asking this Court to grant all executive officials who handle administrative complaints or FOIA requests absolute judicial immunity.

The government has fallen woefully short of its "burden of establishing the justification for such immunity." Roland, 19 F.3d at 555

  (This means that if a jury finds they violated my civil rights, these individuals pay the damages, not the taxpayers.)  Second, she granted our request to open discovery for four months.  On the first order Judge Evans granted the government's request to deny the Bivens claim against Cassidy based on his so-called "absolute judicial immunity." We will be appealing this after this part of the case has concluded on the grounds that immigration courts are not judicial.

(Most of the folks reading this blog will know this, but the background is that on April 19, 2010 I was unlawfully removed by force from the Atlanta immigration courts on order of a immigration judge, aka DOJ attorney.  William Cassidy, who has one of the highest rates of asylum denials in the country and draws complaints from numerous attorneys, deported U.S. citizen Mark Lyttle to Mexico and then was retaliating against me, in concert with his cronies in the Falls Church headquarters, for reporting on this.  His cronies then covered this up.)

Thanks so much to my attorneys Ray Lerer and Beth Taylor at Federal Hasson in Atlanta for their persistence and great work on these briefs.

Also, if anyone reading this has suggestions for discovery, either for specific documents or questions for depositions, please let me know, either by posting a comment here anonymously or by sending me an email, jacqueline-stevens AT northwestern.edu.

I have positive updates to report on the FOIA litigation as well, undertaken with Andrew Free of the Ozment Law Firm in Nashville, and will post on that next week, as well as on US citizens who have been recently detained and deported from Texas.

New FOIA Lawsuits

from TVtropes.org

"from Matter of C.B.

I decided it was time to push back against the slow poke or nonresponsive replies to my requests for information under the Freedom of Information Act.  Sam Niiro and I are now filing pro se lawsuits.  Sam is just finishing his first year as a Northwestern undergraduate.  And many thanks to attorney R. Andrew Free who is taking over after we file them!

Complaint Against the Executive Office of Immigration Review
The first complaint, filed in April, was to obtain the case docket for "Matter of C.B." an August 15, 2012 Board of Immigration decision that, pathetically, had to be written in order to tell a Department of Justice attorney that respondents really do have a right to an attorney.   I requested the hearing history because I wanted to know how long it took someone locked up to have this due process right affirmed.  The coercion of detention pressures so many people to abandon their legal claims to residence and I wanted to document what this wait looks like.  

I had received precisely this information in response to a previous FOIA request, with the respondents' names redacted. But this time around the geniuses at the DOJ said they did not maintain this information.  (The problem is not terminology because I used the exact same language on both requests, as my complaint points out.)

Finally, please note in this decision and all BIA decisions the gross flaunting of the rule of law the EOIR perpetuates when it hides the names of the immigration judges, another symptom of the kangaroo court mentality among the folks who run that agency.  In exchange for the great power judges have they must submit their decisions to public scrutiny.  But of course kangaroo courts can provide this discretion and cloak these DOJ attorneys in the hangman's garb of anonymity.

Complaint Against the Department of Homeland Security, Office of Inspector General
The second complaint, filed a couple weeks ago, is on behalf of a woman who in 2011 was falsely imprisoned, kidnapped, and robbed by DHS employees when she was returning from Nigeria.  The Office of the Inspector General conducted an investigation that resulted in her being returned to the United States at government expense but the OIG is not releasing the underlying investigation results that led to this decision.   I'll be posting more details on her situation shortly.

EOIR, MaryBeth Keller email
Next up is the email to and from EOIR attorney MaryBeth Keller about the coverup that she participated in pertaining to the investigation of my own misconduct complaint against William Cassidy, the Atlanta immigration court attorney who deported U.S. citizen Mark Lyttle and then illegally failed to allow us to observe hearings, ordered me removed from the building, and then lied about it.

Ironically, Keller, point person for misconduct investigations, herself failed to comply with the FOIA law for over a year.  The EOIR is not among the components that consider employee FOIA responses in their performance reviews, something that needs to change.  Keller is the EOIR official who sucks up the misconduct complaints against the immigration judges and then, in violation of the statutes, helps her  colleagues sweep them under the rug.  There are statutes that require her to forward these complaints to the DOJ Office of Professional Responsibility or Office of Inspector General but last time I checked she and the rest of her colleagues were regularly violating these statutes.

Recent Cases of U.S. Citizens Detained and Deported at Reynosa/Hidalgo: DHS Business as Usual

From Google Analytics screenshot, click for full image

City:   "Reynosa"         

Keyword:  "have a n600 interview but stuck in mexico deported"

Every once in a while I check the keyword searches that are bringing people to this site.  Just as The New Yorker magazine is publishing a story about Mark Lyttle's deportation in 2008-2009 I've been receiving over the past week several visits to my site from what appears to be someone stranded in Reynosa who is frantically trying to figure out how to attend an interview for his N-600 application for a Certificate of U.S. Citizenship.  (The screenshot above is for a visit to the site on Thursday, April 18.)

(UPDATE: 4/25 I finally had a chance to read the entire article carefully and agree with my colleague who said he found William Finnegan's plagiarism of my reporting here and my law review article "appalling."  I'll document this in detail shortly but it's quite clear that Finnegan simply plagiarized important chunks of the article and that he failed to properly attribute others.  I had an inkling this might happen to some extent but it wasn't until today that I realized how aggressive he had been in appropriating my work and representing it as his own.)

If you're a U.S. citizen but you're indigent and you've been deported, it's still extremely tough to fight the Department of Homeland Security's (DHS) ethnic cleansing mindset if not policies, as this individual knows from reading the posts here on Andres Robles, a U.S. citizen whose return was rebuffed in 2011 at the Brownsville, Texas crossing even after a Citizenship and Immigration Services field officer sent him a letter telling him his Certificate of U.S. Citizenship had been approved but he would be unable to convey it to Andres because Andres had been deported.

(Andres's sister Maria told me recently that he had problems obtaining his social security card and is still looking for an attorney to sue the US government for damages from his wrongful deportation and its aftermath; yes, you'd think it would easy but the attorneys who know the deportation laws are not litigators and the litigators lack the training to take on the complexities of deportation law; U.S. citizens who lack the resources to avoid being deported are typically not in a position to find attorneys to help them sue the federal government.)

U.S. Citizens: Still Having Problems Returning from Reynosa/Hidalgo
Reynosa is where you find yourself after you've been flown from, among other places, the Stewart Detention Center near Fort Benning in Lumpkin, Georgia.   That's how Mark Lyttle ended up there and the reason I visited in the summer of 2009.   There are several state and informal shelters and refugee camps close to and right on the Rio Grade; hundreds of people from all parts of Mexico and the rest of Latin and South America are fed or stay there each day, either because they've just been deported from the U.S. or because they are contemplating entering.

Centro de Apoyo Cristiano/ A Indigentes y Deportados, Reynosa, Mexico

June, 2009  (click to enlarge)

Today I decided to do a little searching online to see what resources a U.S. citizen who had been deported this month and was indigent would find, to see if one would have an easier chance of figuring out how to return from Reynosa than Mark did in 2009.  It sure doesn't look that way, which is probably why this person is ending up here: there still is no clear government policy much less web page information for U.S. citizens who have been deported.

I have no further information about the underlying facts of citizenship for the person doing this search (please e-mail if you read this, jacqueline-stevens AT northwestern.edu), but I do know that in March, 2013 a U.S. citizen born in Texas and wrongfully ordered deported was taken into custody by Border Patrol officers in Hidalgo, the U.S. entry point on the other side of the bridge from Reynosa, and brought to a detention center in Louisiana, even though she had a certified copy of her birth certificate issued shortly after her birth in Texas.

The only fix for this is assigned attorneys for anyone being deported, especially because some people take the word of the government and wrongly believe they are not U.S. citizens even though they really are, or they may not have the cognitive skills to meaningfully participate in the deportation proceedings.


(No, a national database won't work: it would have simply recorded her unlawful removal order and the guards would say her birth certificate was fake or that it was issued for someone else.  Mark and his social security number were in the federal database ICEagents saw and listed as a U.S. citizen but that didn't stop ICE from deporting him.)

Government Resources Today
Today someone in Reynosa trying to figure out what to do if they were a U.S. citizen and couldn't attend their N-600 interview because of being deported would see this, note the link for "Consular agency: Reynosa":

But then if you clicked on "Consular Agency Reynosa" you'd see this:

Turns out that the Reynosa Consular Office is closed, though it seems unlikely that it is for the reason stated elsewhere on the website, i.e., the resignation of the Reynosa Consular Agent:

The resignation was in September, 2012.  It's been seven months.  Our Foreign Service lacks one other person who speaks Spanish and can manage an office?

The more likely explanation is that the U.S. has been scared out.  There have been frequent attacks at the consular office in Matamoros and the Reynosa office was officially closed in 2010 because of drug war violence.

With no consular services in a dangerous border city, the only "welcome committee" for deported U.S. citizens are the same border patrol guards who greeted Mark Lyttle and threatened him with prison time for "False Personation of a U.S. Citizen."

The woman from Texas was taken to a detention center and not released until her family, who knew she was returning to her home country, obtained a lawyer.  But the vast majority of deported U.S. citizens are coming out of jails and prisons, and their families tend not to know they are being deported.

The DHS's complacency about the plights of these U.S. citizens is shocking at face value, and also because it is so at odds with how most U.S. Americans feel and also our laws.  That's probably why Brian Hale, Assistant Director of the Office of Public Affairs at DHS,  is so inventive when it comes to sidestepping requests for concrete information about ICE's treatment of U.S. citizens.  (Hale has zero integrity; not only does he use his office for propaganda, he's also ordered ICE officers to  violate the rules and First Amendment rights that authorize detained respondents to meet with the press and visitors.)

In short, Hale is telling the press that ICE is no longer deporting and detaining U.S. citizens at the levels I have documented (1% of people ICE detains for removal are U.S. citizens and about .5% of those deported are U.S. citizens, mostly through derived or acquired U.S. citizenship from parents born or naturalized in the U.S. and of Latino descent).  And yet Hale refuses to provide any agency data to back up this assertion.  This is exactly what happened, by the way, in the time frames Hale now seems not to be disputing: ICE propagandists Richard Rocha, Virginia Kice and others were telling the media in 2008 and 2009 that ICE "never" detained or deported U.S. citizens even though this was obviously happening and being reported, just as it is now and just as was happening in very similar reports on immigration agent misconduct in the early 1930s.

ICE has had over a year to release data that would contradict what I reported on the basis of reviewing findings from over 8,000 records maintained by the Florence Project in Arizona, interviews with immigration judges, interviews with ICE agents, and interviews with deported and detained U.S. citizens and their attorneys.  EOIR data also state that 1% of its cases in 2010 were adjourned because of claims of U.S. citizenship, a number that does not mean that all these cases resulted in determinations of U.S. citizenship but that may still understate the total because not all immigration judges tabulate detailed reasons for the adjournments and because a successful appeal to the Board of Immigration Review or the federal courts overturning an adverse decision by an immigration judge would not show up as a case adjourned because of U.S. citizenship.

In short, despite repeated requests from scholars, members of Congress and the national media and the fact that the reporting criteria for DHS and EOIR indicate they have the data, these agencies are not coming clean.  (And, the DOJ also has the underlying data on federal court decisions overturning instances when the DHS makes administrative mistakes in adjudicating determinations of U.S. citizenship and could release that as well.)

On April 20, 2013 I sent Hale an email referencing his comments to the New Yorker reporter William Finnegan and the fact-checker who spoke with me as well.  I requested data to support his claim that ICE's alleged changes in procedures (easier found on paper than in practice) have resulted in a decrease in the number of U.S. citizens detained or deported.

Hale did not reply to this request from The New Yorker nor from me.  If he does I will post it.