Monday, November 17, 2014

ICE Locking Up Hundreds of US Citizens in Recent Years, Chicago Case Suggests ICE Obstruction of Justice

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Data recently released by the Executive Office of Immigration Review (EOIR) responsive to my FOIA request shows ICE today still is holding US citizens from days to years prior to their cases being terminated or closed.

Preliminary analysis of a small sample of EOIR data for hearings from January 1, 2011 to September 30, 2014 reveals EOIR adjudicators terminated 185 deportation orders and administratively closed an additional 53 cases after adjournments based on claims of US citizenship. Hundreds more were released from detention based on other forms or relief or because of prosecutorial discretion.  (These figures refer only to those detained.)

These data were released responsive to my request for cases associated with an adjournment code available for when there is a claim of US citizenship.    Adjudicators hearing these cases may use an adjournment code for US citizenship, but they also may use a more generic code associated with searching for representation.   This means that the cases released are an unknown portion of the total number terminated because of US citizenship.

Also, I can see from my own records that even those whose Record of Proceeding indicates an adjournment because of a claim of US citizenship in this time frame are not showing up in the data released to me.  (In fact, none of the cases with records I possess and know were terminated in this time frame are showing up in the EOIR spreadsheet.)

The EOIR data I am now analyzing, with the assistance of Northwestern student Sam Niiro,  are useful for examining what happens to some of those who happen to have their cases coded this way -- I will be publishing more on this at a later date -- but they tells us nothing about the actual numbers of U.S. citizens ICE has arrested nor their treatment.

Nonetheless, one thing we do know: long after John Morton, Director of ICE Enforcement and Removal Operations, issued a memorandum requiring the release of those with probative evidence of their U.S. citizenship, and after his 2013 letter to the New Yorker claiming ICE may in the past have apprehended U.S. citizens but had stopped, ICE is persisting in locking up US citizens absent any legal authority to do so.

I'm releasing this preliminary count now because it contextualizes what ICE agents and attorneys have been doing to Andre Joseph, who on September 16, 2014 wrote me a letter stating he had been arrested by ICE in Chicago after showing up for his Infopass appointment.   He'd read his wife's New Yorker magazine article describing my research on Mark Lyttle, who was born in North Carolina and deported to Mexico, even though he had never been there, had no relatives there, and spoke no Spanish.

I am another  "Mark Little"! [sic]
ICE Use of Fraudulent Data Violates Due Process

Andre Joseph has been in ICE custody in Chicago since September 9, 2014.  Joseph himself had been deported and, back in the U.S., was trying to obtain paperwork from his 1984 naturalization.

 Joseph is concerned about the fact that after he was arrested ICE agents ignored his requests for an N-600 form (so he could obtain his already existing Certificate of Citizenship) and then, after he obtained one, failed to help him procure the passport photos necessary for its submission.

According to Joseph, when he was 18 he went to the federal building in downtown Springfield, Massachusetts to take the test for joining the Navy.  His recruitment officer told him to go upstairs and naturalize. Joseph says he passed the test and was sworn in as a US citizen, but was so anxious to cram for the military exam that he dashed back downstairs before picking up the certificate.

The regulation on citizenship states that the effective date of naturalization is the day one is sworn in (8 CFR 1337.9).  Joseph says he surrendered his green card and did everything he was supposed to do, and that the folks in the military office congratulated him on his citizenship and made positions available to him in the Navy that would not be available if he had not become a citizen.

Consistent with Joseph's account is that there is indeed a federal building on Main Street (1550) in Springfield, just as Joseph testified last week at his hearing before adjudicator Richard Fujimoto,

 Further confirmation is that the same building housed a US Navy Recruiting office,

AND, still has DHS offices,

(RAC = Resident Agent-in-Charge)

According to Northwestern student Hayley Hopkins, who observed the televideo hearing last week in downtown Chicago, the government trial attorneys tried discredting Joseph by claiming that in this time frame, he would have needed a judge to perform the ceremony.

Maybe, maybe not.  Either way, the ICE attorneys never informed adjudicator Fujimoto that until 2008, the federal building at 1550 Main Street, Springfield also housed the U.S. District Court of Western Massachusetts.

Joseph's narrative suggested the recruiters there routinely were naturalizing the new recruits and it is plausible they had an arrangement with the federal judges to facilitate this in an expeditious fashion, i.e., that day.  (It also could have been coordinated through a Massachusetts program also housed in the building, which focused on attracting and supporting immigrants in the region.)

Also consistent with Joseph's narrative of effecting his naturalization in 1984 is the E-Verify print-out Joseph's wife brought with her to the hearing last week.  (She runs a small business and in 2012 used the interface to inquire into her husband's status.)

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Hopkins told me she was shocked that the DHS attorneys, and also adjudicator Fujimoto, appeared to have no familiarity at all with E-Verify, which since 2008 has been using social security cards tied into Citizenship and Immigration Services databases that automatically update citizenship status after naturalization.  (This recalls retired adjudicator Jimmie Benton's observation about the poor training EOIR provides its adjudicators.)

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The trial attorneys claimed to have exhaustively researched the case, but failed to mention any of the information above.

ICE public affairs director for the Central Region, Carl Rusnok, has ignored repeated inquiries by phone and e-mail.  (Typically they respond that they cannot comment on cases for privacy reasons, but since I attached Joseph's privacy waiver they just ignored the queries altogether.)

ICE Agent Obstruction of Justice and RICO Violations
At this point it is impossible to say whether the database will back up Joseph's narrative.  But it's also impossible to say if this is because Joseph is confused or because DHS components are altering or destroying records, as ICE agents demonstrably did when they reported the circumstances of Joseph's arrest.

This is a very serious problem.  The main evidence of citizenship and many other immigration claims lies in government maintained records.  If the government is manufacturing or hiding its own records, as it has clearly done with Joseph's arrest report, then we will never know what happened with Joseph in Springfield, Massachusetts in 1984.

"They're playing a game and they're not being truthful. They're lying now like they were lying back then," he said, referring to when an INS agent in 2002 told him that his bank robbery conviction meant his citizenship was being revoked.    

ICE agents arrested Joseph at the Infopass appointment.  But the arrest report claimed he was arrested at his residence.

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101 W. Congress Parkway is the address for the Citizenship and Immigration Services, and also the detained immigration courts.

Joseph resides in Waukegan, not a federal building.  The ICE officers who arrested him knew this; they had his driver's license.  And they knew this from his wife, who thought she was just dropping him off for a little administrative appointment, and was out doing a little shopping in the Loop.

Another problem is that the summary of the ICE arrest reports states that Joseph had not filed a petition for his naturalization, even though he claimed otherwise and was in line to follow up on that.

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Joseph told the agents he had been sworn in as a US citizen in 1984, implying he had petitioned for this at that time.  And the only reason he didn't file a petition on September 9, 2014 is that ICE arrested him.

Of course it is possible Joseph is confused or himself obfuscating.  But why not point this out, rather than obscure the true location of his arrest and the underlying events surrounding it?  And, after he's locked up, why prevent him from filing an N-600 form?

In immigration court last week, when Joseph over the televideo from McHenry County Jail expressed concerns about the false statements and his wife, present in the court, showed adjudicator Fujimoto the entire print-out from ICE's system records, the ICE trial attorneys responded in an accusatory tone, "Where'd you get that?!" implying that by procuring his own records he had violated a government secrecy act.

It is troubling that the ICE attorneys and the adjudicator paid zero attention to the clearly false information in their own records.  At the end of the day, the records Joseph has produced are consistent with his claims of US citizenship and the ICE records are evidence of obstruction of justice.  (18 USC 1519: "Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.")

Joseph Needs a Lawyer
Joseph wrote a very clear narrative of events that he submitted to adjudicator Fujimoto, along with the 2012 E-verify printout, but he, his wife, and also the student observer Hayley Hopkins, were shaken by Fujimoto's indifference and the government's double-standards. "They only respect a lawyer," Joseph told me.  Hayley reported that Andre and his wife said that the I-213 summary "showed evidence of misrepresentation," but that instead of taking it seriously, the government attorneys were "skeptical of how they got this, and asked, 'How were you able to obtain ICE documents?'"

 These events are just a piece of the larger problem with deportation proceedings today.  If either President Obama or Congress really care about the rule of law, then they should stop arguing about prosecutorial discretion and put ICE on ICE and stop deportations until everyone has an assigned attorney and there are regulations for detention centers, absent which people are agreeing to being deported to effectively escape conditions of torture.

I am not claiming that most people in deportation proceedings have secured the proper permissions to remain in the United States or have not violated laws consistent with the government's prerogative to deport them.  I am claiming that virtually all proceedings reveal the government to be breaking laws that are much more important to public safety than the ones those in their custody are accused of violating.

Finally, we should all be praying over Franz Kafka's grave, his body surely tossing like mad by now.  His name frequently appears in federal court decisions responsive to BIA and IJ orders,mostly because of their failures of logic and legal inventiveness -- my favorite is the BIA precedent based on an invented portion of the Mexican Constitution.  In the event, the specific problem Kafka highlights is the blurring of private and public behaviors in spaces that are putatively governmental. On the one hand, the citizen goes before the law expecting from the court fairness and knowledge of the law, and then is frustrated by officials who are much less orderly and civic minded than their supplicants, which Kafka dramatizes by the family and dining scenes inside the court building.  

All this is weirdly brought to life by the recent published and leaked reports by the DOJ OIG and DHS OIG, respectively.  The image of our immigration and deportation business being treated with all the graveman of the family chores is, alas, the horror Joseph now confronts.

Sunday, October 26, 2014

Slate's Reihan Salam Engages States Without Nations' Feminist Analysis

Most public discussion of States Without Nations: Citizenship for Mortals centers on a practical discussion of the first of its four proposals: eliminating birthright citizenship and allowing free movement and citizenship based on residency, along the lines of requirements for state residency in the United States. The overarching historical and theoretical framework tends not to receive much attention.  So I was pleasantly surprised to see journalist 's recent article on Slate "The End of Pregnancy and the Inevitable Rise of the Artificial Womb" explore the book's analysis of pregnancy envy.
Stevens suggests that our society is screwed up in large part because men have created myths, rituals, and laws that entrench their power as a way to compensate for a profound sense of inadequacy instilled early in life.
Salam explores the technological changes that may topple the current reproductive practices and thus the compensatory policies responsive to these, at least for elites working at Apple who have their eggs stored, thus readying them for the near distant future's possibility of ectogenesis. 

Salam claims that paternity testing also changes the compensatory rationales of inheritance and other policies.  But my argument is about the effects of early childhood fantasies boys have about the significance of their inability to give birth.  Empirical claims about new assessments for genetic paternity or men's actual contributions to child-rearing are not relevant to understanding the causes of the structures instantiating through law intergenerational families and nations.  Still, fun to think with Salam about new reproductive technologies and practices.  

For more on the relation between reproductive technologies and the feminist revolution, check out Shulamith Firestone's classic The Dialectics of Sex: The Case for a Feminist Revolution (1970).  Firestone wrote this at age 23, while a student at the Chicago Art Institute.  This reminds me that Gayle Rubin developed the central analysis in her classic essay, also theory-heavy, "The Traffic in Women: Notes on the 'Political Economy' of Sex" (1975) when she was an undergraduate at the University of Michigan, Ann Arbor and active in the feminist movement there. So here's a shout-out to the Midwest and campus activism in the 1970s for these two brilliant, iconoclastic feminist thinkers.

Thursday, October 23, 2014

GEO Sued for Minimum Wage and Forced Labor Law Violations, and Unjust Enrichment

Lawsuit seeks $5 million in minimum wage law damages and also compensatory and exemplary damages for Forced Labor (18 U.S.C. § 1589), 
and Unjust Enrichment 

American Friends Service Committee, May, 2010 vigil at GEO facility in Aurora, Colorado, sign reads, "We are not the NEW SLAVES"
Yesterday, Alejandro Menoca, Marcos Brambila, Grisel Xahuentitla, Hugo Hernandez, Lourdes, Argueta, Jesus Gaytan, Olga Alexaklina, Dagaberto Vizguerra, and Demetrio Valerga on their own behalf and others similarly situated filed a complaint informing a federal judge that their guards were breaking the law.

The complaint, filed by an intrepid team of lawyers who spent extensive time interviewing detainees at the GEO facility in Aurora, Colorado, states:
In the course of their employment by GEO, Plaintiffs and others scrubbed bathrooms, showers, toilets, and windows throughout GEO’s Aurora facility. They cleaned and maintained GEO’s on-site medical facility, cleaned the medical facility’s toilets, floors and windows, cleaned patient rooms and medical staff offices, swept, mopped, stripped, and waxed the floors of the medical facility, did medical facility laundry, swept, mopped, stripped, and waxed floors throughout the facility, did detainee laundry, prepared and served detainee meals, assisted in preparing catered meals for law enforcement events sponsored by GEO, performed clerical work for GEO, prepared clothing for newly arriving detainees, provided barber services to detainees, ran the facility’s law library, cleaned the facility’s intake area and solitary confinement unit, deep cleaned and prepared vacant portions of the facility for newly arriving detainees, cleaned the facility’s warehouse, and maintained the exterior and landscaping of the GEO building, inter alia.
 The complaint also includes violations of a federal law prohibiting Forced Labor, 18 U.S.C. § 1589:
5.  GEO or its agents also randomly selected six detainees per pod each day and forced them to clean the pods. In the handbook that GEO distributed to the detainees, GEO announced a “Housing Unit Sanitation” policy informing the people held at the facility that “[e]ach and every detainee must participate in the facility’s sanitation program.”
6. GEO or its agents forced Plaintiffs and other civil immigration detainees to clean the facility’s pods for no pay and under threat of solitary confinement as punishment for any refusal to work.
 And the complaint references Colorado Common Law prohibiting Unjust Enrichment.  In precise and riveting language the 21 page brief brilliantly lays out the legal problems with the private prison industry's business model.

 The attorneys who filed this lawsuit are Brandt Milstein, Boulder, CO; Andrew Turner, Denver, CO; Alexander Hood, Golden, CO; Hans Meyer, Denver, CO; and Andrew Free, Nashville, TN.

I have been filing FOIA requests on this topic for several years and Andrew Free is currently representing me in extricating additional material for use in a working paper that will be revised for publication next year in the Georgetown Immigration Law Journal.  For more research on related violations, please go here.

Wednesday, October 15, 2014

EOIR Refuses to Investigate Lying Adjudicator William Cassidy: DOJ Needs to Re-read Edward Coke

Edward Coke is the genius behind independent judicial review and thus the rule of law.  Familiar with the king's courts, Coke would recognize the immigration courts as a poor excuse for the real thing. (More at bottom)

New Filings in Lawsuit against EOIR for Bivens Remedy and Injunctive Relief

October 14, 2014, Case 1:12-cv-01352-ODE:

These are the most recent motions in the lawsuit I filed April 18, 2012 after receiving information proving that Atlanta's William Cassidy indeed ordered a guard over whom he had no legal authority to push me out of a building lobby where I was writing in my notebook.  Cassidy then lied about this in a formal response to his friend Gary Smith's sham investigation of my misconduct complaint.   (Immigration judges have no authority over building guards, so Cassidy and Smith decided to put together a record suggesting this never happened.)  

In Cassidy's sworn affidavit, produced after the guard confirmed Cassidy had ordered my removal, he no longer denies the order and is just silent on the event altogether.

A few highlights from discovery and filings not under any request for a protective order are: 

-The guard who initially accosted me admitted to the Paragon Security firm lawyers that Cassidy had told him to have me removed from the building;

-MaryBeth Keller, in charge of immigration judge misconduct investigations for EOIR, as soon as she received my formal complaint, called a meeting with the people whom Cassidy's pal Gary Smith was organizing to ban me from the immigration court to "avoid a right-hand/left-hand scenario," as she instructed in the email, and she assigned Smith to coordinate the sham investigation of my complaint. 

Even when confronted with clear evidence of Cassidy lying, and conceding that this was a concern, Keller is refusing to investigate at this point because of "litigation."  

Keller used to run EOIR's Office of General Counsel and her statement reflects the worst of professional ethics --one would think that especially someone who is employed by an agency of the Department of Justice would view verification of illegal conduct brought to the agency's attention by any means, especially a lawsuit, would be a reason for firing someone.  For Keller, it's a reason to sit on her hands.

It is a blight on the DOJ and the immigration courts that MaryBeth Keller is in charge of misconduct complaints; a cursory review of their incomplete release responsive to the lawsuit brought by AILA and Public Citizen shows she is running an operation that is largely toothless. Complaints take hundreds and even thousands of days between the date of the incidents and being closed.  If you want action, file your complaint against an IJ with the respective state bar and instruct them NOT to forward it to EOIR.  

Keller  is still a defendant in the lawsuit's claim for a Bivens remedy and injunctive relief; she, like Smith, are claiming that the job title "Assistant Chief Immigration Judge" gives them judicial immunity. Our filing yesterday explains why this position is ridiculous.  

-Gary Smith, who had spoken with Cassidy shortly after Cassidy ordered me pushed out of the building and presumably knew all along what happened, failed to obtain statements from the two eye-witnesses to Cassidy's order and exchange with me (Paragon guard Nathaniel Hayes and Cassidy's assistant), and did not acknowledge that other accounts contradicted the one Cassidy gave and backed up my account.  (Shortly after I filed my lawsuit Smith retired and is now living in Georgia; he also remains a defendant in the Bivens claim.)

-Frances Mooney said she also heard that Cassidy had ordered the guards to remove me from the building.  (Mooney was a defendant Judge Orinda Evans dropped from my lawsuit because my amended complaint didn't include enough details about her specific actions; that's too bad because the record shows she was using her KGB-like position of managing the immigration courts' building security and public affairs to try to ban me and admitted that the reason I was targeted for surveillance and banning was because of what I wrote.)

-Cynthia Long is still the court administrator in Atlanta.  A highlight was her claim that before I had ever set foot in that building she circulated an email to a bunch of folks in EOIR headquarters and all the staff and IJs in Atlanta announcing Mark Lyttle and I would be arriving and might try to observe hearings.  She acknowledged that "in the history of the world" she had never sent another such an email on the occasion of someone picking up a file.  And she acknowledged I was singled out for needing special permission to enter the immigration courts.

Long was also dismissed from the lawsuit because of lack of specificity in the First Amended Complaint but the email and deposition make it obvious she was involved in unlawful restrictions on my observing hearings throughout the entire time frame; the statements and actions of which her supervisors are well aware violate the regulations and the First Amendment. The Atlanta immigration court is an object of derision and, save the fact that Long used to work in Falls Church headquarters and is part of the crony culture there, her persistence in that position would be a mystery.

-Lauren Alder Reid, who runs the public affairs office under the supervision of Frances Mooney, is someone whom I rightly suspected also played a role in working to ban me from immigration courts.  I did not name her in my lawsuit because, unlike Cassidy, Smith, and Keller, she was the only one who turned over email responsive to my FOIA request before I filed the lawsuit and I was grateful to her for this. (This was before I was litigating under the FOIA statute.) 

Alder Reid's email gave me information I needed to file the complaint.  I think the reason she is the one who coughed up her email is that I had filed a misconduct complaint against her previously because she had been giving me the run around about the access policy for immigration courts and then when I finally FOIAd it and I learned she was the one the who wrote it I realized she'd been lying to me.  

Alder Reid claims that the OIG investigated my complaint and found it baseless; she said her source for this information was a telephone conversation with a man whose name she could not recall; I have a letter from OIG saying that they never conducted an investigation and referred my complaint back to EOIR, and I have a phone message recording on my answering machine I saved from EOIR saying the agency never investigated my complaint.

Alder Reid also claims that my misconduct complaint had nothing to do with her decision to turn over email and that this was just a result of her open and forthcoming habits. Based on releases in discovery I find this disingenuous.  Judge Evans denied the government's request for a protective order a while back but I'm not sure of the current status of some documents for which they have requested this since then and will wait before going into this further.

-Cassidy has withheld responsive email and also seems to prefer the phone to a digital trail.  But his pals sell him out:  immediately after hanging up, the folks with whom he speaks send emails to each other.  The picture that emerges is him coordinating with the court administrators Long and Ray Bethune to mask his hearings from me by not posting his dockets, or avoiding hearings when I'm around.  Again, his job security seems due to his longtime ties with folks in agency headquarters; other IJs have been forced out for less egregious actions.  One of the problems is that the misconduct complaints against him were for a long time handled by Smith and Keller, who were covering up violations much more egregious than those about which I was complaining.  

Finally, to Attorney Bruce Brown, for being such a smart guy and terrific attorney: Thank you!!!

 Coke was the Attorney General under Elizabeth and when he supervised the courts under James I he challenged the legality of a ruling in the King's court on behalf of James, and was fired.  But a few years later, from Parliament, Coke brought 23 corruption charges against his nemesis, the Royalist Francis Bacon, then Lord Chancellor (in charge of all courts).  The charges stuck and Bacon was fired and spent a brief time in the Tower of London.  Thomas Hobbes prepared Bacon's work for publication in the few years between the conviction and Bacon's death in 1626.  (I was just lecturing on Coke in my political theory class and was tickled to see my attorney Bruce Brown had referenced a decision by Coke in the motion below.)

Friday, October 10, 2014

More on the Government Illegals Running the Immigration Courts

Attorneys are filing complaints against the sadistic clowns showing up for work in black robes at the Atlanta and Dallas immigration courts.  Will the Executive Office of Immigration Review do something, or will MaryBeth Keller and her cronies in the Office of General Counsel continue with their typically fake investigations and cover-ups?  

Analysis of misconduct complaint management from FOIA releases and lawsuit shows agency malfeasance.  To be serious about housecleaning, the agency needs to fire MaryBeth Keller, EOIR's leadership in the Office of General Counsel, and bring in the GAO for audit

A solo practitioner on Wednesday lodged with the Executive Office of Immigration Review (EOIR) a misconduct complaint against Atlanta immigration court case manager Dan Pelletier because he denied at the last moment her unopposed motion for a continuance to accommodate her maternity leave, and then yelled at her in a crowded court for showing up with her infant daughter, ultimately rescheduling the hearing per her initial request.

Attorney Stacy Ehrisman-Mickle's motion for a continuance is copiously cited and also accompanied by a detailed report from her physician.

 Ehrisman-Mickle's wrote to EOIR, in part:
 My complaint is simple: the IJ denied my motion for continuance for a master calendar hearing because he believed that being on maternity leave is not “good cause”. My initial consultation with the relevant clients (juvenile brothers) was on July 8, 2014. Due to financial constraints, the boys did not hire me right away. They went to their first master calendar hearing unrepresented on September 2, 2014. The boys and their mother came to my office on September 6 - the Saturday after their first master calendar hearing. The clients hired me that day and did not care that I had to file a motion for continuance due to my maternity leave. On Monday, September 8, I mailed a motion to continue their second master calendar hearing scheduled for October 7, 2014. The court received the motion on Tuesday, September 9. Counsel for DHS did not oppose my motion. The IJ did not rule on the motion until Thursday, October 2. I received the decision denying the continuance on Friday, October 3. I appeared with my clients this morning at their scheduled master calendar hearing. I was forced to bring my weeks old daughter with me as day care centers do not accept infants less than 6 weeks of age and I have no family in Georgia that could help me look after my baby. My husband is a truck driver and was out of state today. My family is in Iowa and my husband’s family is in New York and New Jersey. We have only lived in Georgia since November of last year. When the IJ saw me with my daughter, he was outraged. He scolded me for being inappropriate for bringing her. He questioned the fact that day care centers do not accept infants less than 6 weeks of age. He then questioned my mothering skills as he commented how my pediatrician must be appalled that I am exposing my daughter to so many germs in court. He humiliated me in open court.
Ehrisman-Mickle told me that that the EOIR supervisor of the Atlanta courts, Elisa Sukkar, called and expressed her frustration that Pelletier failed to record the exchange and indicated this meant Ehrisman-Mickle had the presumption of accuracy in any dispute about the facts, though Sukkar also indicated she might need further evidence from the attorneys then present.

Dallas Case Manager Dietrich Sims Targeted for Removal
On Thursday I received an email through a listserve from Attorney Niloufar Khonsari.  She indicated her own recent grievance filed against Dallas immigration court case manager Dietrich Sims, and called for other attorneys to share with EOIR their complaints at this time as well.

Khonsari is asking that EOIR terminate Sims and is asking attorneys to forward their complaints against Sims to ACIJ Dee Nadkarni at:

To make sure they don't ignore your Sims complaint, you can also send a copy to Khonsari.  Her email address is -- nilou AT

Khonsari Complaint
Khonsari was concerned because Sims first denied her motion for a change of venue because he found her client prima facie ineligible for relief even before his first master calendar hearing (he is eligible for cancellation and asylum). And then, when her client had flown from San Jose to Dallas (he'd been picked up for "driving too closely" and then brought by Dallas police into ICE custody before being released on bond) case manager Sims failed to call the pro bono attorney, per the telephonic hearing to which he had previously agreed.

Such burdens are unwelcome for most firms and a serious obstacle to due process when imposed on already overburdened nonprofits representing indigent clients. Khonsari's complaint to EOIR, including complaints from local attorneys preferring anonymity to incurring further wrath from Sims, states in part:
 -“[H]e is erratic and unpredictable.” 
 -“[He] never grants COV – especially not to CA.” 
 -“He made one of my clients travel from New York City for more than two years worth of hearings…” 
 -“[He] denies most cases.” 
 -“Sims acts as a prosecutor, rather than judge, and invented requirements, such as proving a prima facie case for asylum as a prerequisite to changing venue, that exist in no statute, regulation, or case law.” 
 -“Please file a complaint with the chief immigration judge [against Judge Sims]!” 
- One attorney recently reported that IJ Sims denied a child-client a continuance and ordered a deportation after the child had been granted special immigrant juvenile status. In that case, IJ Sims claimed he had no jurisdiction over the child's adjustment application and sua sponte, ordered the child deported.
Misconduct Investigation Data
The feeling among attorneys is that EOIR's system of  misconduct investigations is a farce. And a preliminary analysis of data released so far backs them up.

Since late 2013, EOIR has been releasing immigration judge misconduct complaints and investigations in summary form, and, since April, 2014 many of the associated underlying complaints and findings.

There are several huge problems with the release to AILA, represented in their FOIA litigation by Public Citizen.  But even the release as doctored by EOIR reveals some interesting results.

Here are some observations based on a quick analysis of the first "200" of their release (really 197-- three inexplicably are missing) from a spreadsheet, produced by Northwestern undergraduates Sam Niiro and Adelina Pak and a crosstab spreadsheet produced by Sam Niiro by complaint source and ACIJ, for the outcomes.

Summarized below are some glaring problems that stuck out as my colleague Professor Heather Schoenfeld and I began assembling data for a more systematic analyses of the release, and press for more accurate reports.

-The number of days lapsed between the conduct and the case being closed are incompatible with any process of remediation. 
Highlights include a complaint submitted by an attorney requesting the ACIJ's assistance with a request for an IJ's recusal that ACIJ Sarah Burr dismissed for "failure to state a claim" after a mere 2,793 days.   This is an outlier but the median range of several hundred days is not much more comforting. Nor are the problems with Gary Smith's "investigations," leaving aside for now his coverup of my own misconduct complaint. For instance, the Board of Immigration Appeals sent Smith a complaint noting an "IJs written order denying R[espondent]'s motion to reopen accuses counsel of attempting fraud," and the next day Smith "dismissed" the complaint "because it cannot be substantiated."  (Emphasis added.)

Nor is it encouraging to note rare punitive decisions taken after the offending IJ has been deporting thousands more, as when, responsive to allegations an IJ "maligned and exhibited hostility towards complainant's law firm, its attorneys, and clients" and intervened in "civil state court adoption proceeding involving an alien child and parent." ACIJ Larry Dean suspended an IJ on October 15, 2012, 1,026 days after the complaint was received.

Dean likewise ignored a complaint that an "IJ prematurely ended the proceedings following a terse exchange and did not adequately evaluate the removal charge," a complaint brought by the BIA on June 9, 2009 for behavior on July 18, 2007 and closed on September 8, 2010 with the IJs retirement.

-Lame or no responses predominate
"Oral counseling" leads all categories of responses (73), and an additional 64 are dismissed because they are "unsubstantiated" (28, including the one above), "merits-related" (22), failure to state a claim (8), disproven (4), or frivolous (2).
15 cases close because the IJ retires.  These are not 15 separate IJs but include multiple complaints against the same IJ--the exact number is not clear because of EOIR coding mistakes, about which EOIR refuses to comment).

-Single IJ terminated over AILA Objections  (#126)
I was contacted by an active AILA attorney in 2010 who felt EOIR was using the complaint as a pretext to go after the IJ for her rulings.  Keller, who managed the investigations, assigned Smith to do the dirty work, even though this was not among the courts he supervised.  The IJ EOIR fired had the reputation of being more progressive.  (She was dismissed after "IJ alleged to have misused position and equipment to influence court action against her husband" and related charges based on assisting her husband with his own traffic case.)

This is all of course the tip of the black ice floe that is EOIR.  Ehrisman-Mickle and Khonsari are to be commended for standing up to these bullies and on behalf of  integrity of a system that is sorely lacking in it.

(The disturbing scope and character of the misconduct complaint misrepresentations in the data released under the supervision of MaryBeth Keller will be discussed at another date, and also the actions of her colleagues in the agency's Office of General Counsel.)

Saturday, September 20, 2014

US Justice Dept. Civil FOIA Office Rejecting All Digital Requests, No Email Option Provided

This morning I tried to file a request under the Freedom of Information Act of the Department of Justice Civil Division.   The site provides no email address but instead requires use of an interactive online form.  However, the site each time rejected  my submission without explanation.

Most government agencies provide an e-mail address for FOIA requests.  But for the DOJ Civil Division, the only recourse is to submit a request by mail, thus burdening the public and creating an obstacle to transparent government.  I am noting this now to document how long the problem persists and share this information with the public and government officials.

Friday, September 12, 2014

'What HE Said!': Eastern District of Louisiana Judge Affirms Plaintiff Brief, Denies Government Motion to Dismiss Deported U.S. Citizen's FTCA Claims

On August 4, 2014 Andres Robles, through his attorney Andrew Free, went on record with a motion explaining why the court had jurisdiction to hear his case under the Federal Torts Claims Act.

Two days later district court judge Carl Barbier in Louisiana endorsed it.

The one-line decision states: "For the reasons outlined in Plaintiff's Opposition, IT IS HEREBY ORDERED that the government's Motion to Dismiss for Lack of Jurisdiction (Rec. Doc. 18) is DENIED."

(Free's 15-page motion is instructive reading for anyone wanting to sue DHS for malicious prosecution.  See below for full pleadings.)

U.S. citizen Andres Robles may pursue redress for his country's refusal to recognize him as a citizen, leading to his detention, deportation, and further Kafkaesque ordeals from the persistent incorrect entries in federal databases.

For the original complaint and background, please go here.

The more recent motions from July and August, 2014 are here:

Government Motion and Exhibit (Defense/dates of filings)
Memorandum in Support of Motion to Dismiss (07/25/2014)
Exhibit-Acuna Declaration, noting June 2014 update of records (07/25/2014)

Andres Robles Motion and Exhibits (Plaintiff/dates of filings)
Response In Opposition to Motion to Dismiss (08/04/2014)
Exhibit 1- Order in Ortega (08/04/2014)
Exhibit 2- Order in Ibrahim (08/04/2014)

Judge's order

For details on Andres's case from when States Without Nations broke the story based on information from outraged attorney Larry Fabacher, please read the Andres Robles tag, which includes his
interview by NPR's Story Court (along with his sister Maria) and his interview on Al Jazeera English.

(Full disclosure: lucky for me, Andrew Free also is my FOIA attorney.)

Sunday, May 25, 2014

New York Times Story on ICE Detention Center Slave Wages

photo Ramin Rahimian, for the New York Times

Check out the New York Times article by Ian Urbina, "Using Jailed Migrants as a Pool of Cheap Labor." 

If you want to read more about the program's legality and history, here's the working paper I posted last week on the Social Science Research Network, "One Dollar Per Day: The Slaving Wages of Immigration Jail Work Programs - A History and Legal Analysis, from 1943 to Present."   (posted May 15, 2014, 160 pages).  

From the abstract:
This Paper evaluates the legality of the $1 per day payments for work performed by those in custody under immigration laws as well as its genesis. In 1941, President Franklin Roosevelt issued an order moving the Immigration and Naturalization Service (INS) out of the Department of Labor and into the Justice Department. During this same time frame, the U.S. Government established internment camps for "enemy aliens," i.e., civilians in the United States and other countries in Latin America who were or were imagined to be citizens of Axis powers. In 1943, the Justice Department paid those so held 80 cents per day for their work performed in the camps; the average daily cost of each person's detention in 1943 was one dollar. This was the origins of the 1950 law authorizing paying those in custody under immigration laws for work performed. If those in immigration custody today were paid at the ratio from 1943, they would be earning about $80 per day. This paper draws on government documents and contracts obtained under the Freedom of Information Act as well as the program's implementation and history as the basis for a statutory analysis of the Government's defense of its legality. The Paper argues that under a reading of the relevant laws' plain meaning, legislative history, and purpose, the program appears to violate various labor laws and the Fifth, Sixth, Thirteenth and Fourteenth Amendments.
For entire paper, please go here.

Sunday, May 11, 2014

Port Isabel Detention Facility Overcrowded, ICE Vows to Continue Violating Prison Standards, Only 10% Have Convictions

Recent contract documents reveal the Texas Port Isabel Detention Center is subjecting the average 1115 people it locks up each night to overcrowding, and that 90 per cent of them have no criminal records.

On February 11 and 12, 2014 representatives from several private prison firms visited the Port Isabel Facility.  Then they submitted questions, to assist in them preparing bids.   You can read the Q and A here.

The contractor question published here does not mention the precise level of overcrowding but it appears to be a) systemic; and b) of no concern to ICE.

This is important not only because of the inherent problem of subjecting those in civil detention to conditions deemed impermissible for criminal punishment, and not only because of ICE indifference to this.  This is the answer ICE gives to private prison firms, authorizing their violations but it is not the answer ICE gives Congress and the American public.  By ICE insisting that its facilities meet the American Correction Association standards for criminal inmates, for instance, in its Annual Performance Reports to Congress (see U.S. Department of Homeland Security Annual Performance Report for Fiscal Years (FY) 2012 – 2014) ICE is just lying. And when ICE tells the contractors that the agency has no intention of following the ACA standards for bed space, it is sending a signal that the agency may condone violations as well.

 If ICE can't be trusted to adhere to basic quantifiable standards such as bed occupancy, and to accurately represent their non-compliance in their communications with Congress, including their budget proposals, this is further evidence of the need for ending detention under immigration laws altogether.

The demonstrable problem is too many beds, but absent their actual use there would appear to be no reason for ICE's commitment to the noncompliant infrastructure. Moreover, ICE can't credibly tout its adherence to ACA standards and then slough off those that it deems superfluous.

On the one side of the practice are the harms being committed every day by the government, including false imprisonment of U.S citizens and their banishment, as well as corrosion of the rule of law.  On the other side, well, immigrants, economists, and human rights professionals agree there is no upside to this.

Also, of interest is that 90% of those held at the Port Isabel facility have no criminal history whatsoever.

Definitions (from ICE Statistics):  "Level 1, Level 2, and Level 3 offenders. Level 1 offenders are those aliens convicted of "aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act, or two or more crimes each punishable by more than one year, commonly referred to as "felonies." Level 2 offenders are aliens convicted of any other felony or three or more crimes each punishable by less than one year, commonly referred to as "misdemeanors." Level 3 offenders are aliens convicted of "misdemeanor" crime(s) punishable by less than one year. Prior to FY 2011, ICE used SC levels 1, 2, and 3 for prioritization purposes."

Wednesday, May 7, 2014

DHS and Private Prisons Refuse to Release Records on Dollar Per Day Wages Paid to ICE Residents, FOIA Lawsuit Filed

The last year I've been conducting research on the legality of ICE contracts authorizing private prisons to meet performance goals by paying one dollar per day to the people they're locking up.  ICE is not forthcoming about the program and it has not responded to my FOIA requests submitted in the summer and fall of 2013.  

Current insights into the program are possible because a couple years ago I received a partial response to a FOIA request documenting ICE and private prison firms paying those in ICE custody one dollar per day.  In the wake of that release, reporters have followed up.  In fact, there have been intermittent reports on this since 2009, when journalist Susan Caroll described the program in an article in the Houston Chronicle.  

The government says the program is legal, but the scope and profits made by the private prison firms go well beyond the program's official description and are shocking. For instance, the 2012 Krome Facility Request for Proposals lists shifts for "detainee workers" alongside those paid prevailing local wages under the Service Contract Act.  The labor is a crucial part of running these detention centers.  

Note that there are 10 "detainee workers" per breakfast, lunch and dinner, for a total of 30 workers each day, but only eight legally paid employees assigned to the breakfast shift, and just six for lunch.  AKAL Security, which runs, Krome, relies exclusively on its resident labor force to serve dinner. In other words, most of its food service is performed by the folks it has locked up; whereas it is paying the outside workers $30 for a couple hours of work, it is paying 30 people for three shifts just $30 total.

This is arguably legal for criminal prisoners.  But the U.S. citizens and other residents ICE locks up are in civil detention and not  for punishment or rehabilitation.  There is a law that authorizes the government paying for this work, 8 USC 1555 (d); it comes out of the World War Two internment camps for civilian "enemy aliens" and prisoners of war .  If ICE paid people today at the same level it was paying those locked up in World War Two, the payments would be around $80 per day.  (INS was paying people 80 cents a day; the average daily cost in 1943 of detaining each person?  One dollar a day.)

Congress has outlawed hiring non-citizens to pick tomatoes for minimum wage.  Meanwhile, private prisons are reaping enormous profits by hiring at slaving wages residents, some U.S. citizens, most undocumented, for staffing facilities under contract to the federal government.  Providing super profits to a select sector, the program is artificially sustaining the private prison industry and their lobbyists, and thus also distorting federal immigration policy.

The only legal footing ICE has for the program is an ad hoc decision by a federal district court judge in 1990 that was copied and pasted into a Fifth Circuit opinion, Alvarado Guevara v. INS , 902 F.2d 395 (5th Cir., 1990).

Here's the complaint drafted by Attorney Andrew Free.  It includes a succinct description of the program's history and documents areas of concern.  I will release the working paper shortly.

Wednesday, April 9, 2014

Al Jazeera Covers Deportations of Esteban Tiznado and Andres Robles

Oysterman Andres Robles, acquired US citizenship in 2002 when 14 years old, 
deported in 2008, 
Social Security number still not cleared in E-Verify

Adam Raney of Al Jazeera television put together a terrific segment documenting the deportations of Esteban Tiznado and Andres Robles, whose stories were first reported here.  For background on Esteban's case, read here; for more on Andres, read here.

On behalf of Andres, Attorney Andrew Free filed on March 26, 2014 a complaint requesting the federal government fully rectify its mistake and also award damages.  The complaint provides a terrific narrative of Andres's ordeal.  It also adds to the database of federal immigration lawsuits and judicial orders in which the word "Kafkaesque" appears.  (Attorney Free also represents me in FOIA cases, though not any involving Andres.)

Esteban is now finishing up a short sentence in the custody of CCA Central Arizona, part of their vertical integration plan: first they lobby Congress for a 34,000 bed/night mandate;  ICE, incentivized to fill these beds, assesses agent performance on the basis of the quantity of arrests, not whether they are lawful; then, when US residents, many unlawfully deported, try to return, they end up in CCA's federal prisons, after convicted of Illegal Reentry (18 USC 1326)  - this being the population that has long surpassed drug offenders as the largest group in federal custody.

Next week Esteban again will be released from criminal custody, again deported, and again attempt to return home.  Each time he is locked up his body becomes weaker, but his will to return home remains as strong as ever.

Correction: An earlier version indicated Andres still had not obtained his Social Security card.  This is not correct.  He does now have his card.   In the years following his return from Mexico, Andres and his sister Maria had r attempted to obtain a social security card for him,  but it never arrived.  Each time they were told to fill out a new application.  After several attempts over more than a year, the card did finally arrive; however, the linked databases mean any E-verify inquiry will indicate his deportation and thus the wrongful deportation may continue to pose problems for him.

Wednesday, April 2, 2014

Houston DHS Trial Attorneys Assert Criminal Convictions as Grounds to Hold Respondent, Ignoring Probative Evidence of US Citizenship

From Board of Immigration Appeals on Robinson Martinez, February 12, 2014, pertaining to his claims of automatically acquiring US citizenship at birth

DHS is agreeing to a change of venue and to move Robinson Martinez, who has been in ICE custody for over two years, to Port Isabel, so that it will not be such a burden for his family to come and testify.  But DHS is opposing Robinson's release.   In law and written policy, the DHS takes the position that it is unlawful to hold anyone with "probative evidence" of U.S. citizenship in custody under immigration laws.  But behind the closed doors of immigration courts they say whatever is necessary to avoid releasing people, relying heavily on innuendo about criminal convictions to obscure the specific legal question about citizenship.  

In a few hours in Houston, Texas, Robinson Martinez will take a brief absence from his expensive if not exactly swanky $120/night lodgings in the Correction Corporation of America's popular Houston facility to appear in a conveniently located adjacent immigration court.

Robinson's mission is to have his government finally recognize his U.S. citizenship and release him, something he's been dogging them to do since March, 2012, when he was transferred from a Texas prison to the CCA lockup in March, 2012.

But April 3, 2014 is different.  Today he will enter because last month's five-page single-spaced decision by the Board of Immigration Appeals told the Department of Homeland Security and immigration judge that they were "persuaded by the respondent's arguments" and remanding.  "The respondent has presented new evidence with his motion to remand which should be assessed by the Immigration Judge..." 

Robinson seems well on the way to being entirely vindicated: if he can prove that his grandfather conveyed US citizenship to Robinson's mother by proving his grandfather really was in the United States for two years after the age of 14 and before Robinson's mother was born -- he was, and signed a very detailed affidavit about living with his mother in the family home in Mercedes, Texas.  The BIA reasoning and remand suggest that the government made a grave mistake when it tried deporting him, and an even graver one in not allowing his freedom while he was trying to prove this.  

The BIA is saying it is persuaded by Robinson's legal argument and that he has new evidence that is important enough that an immigration judge needs to review it.  Robinson has his grandfather's Certificate of Citizenship and other documentation proving that his grandfather was a U.S. citizen at birth, as well as copious other affidavits, birth certificates, school records, adoption records, and much more that provide numerous overlapping verification of the facts the BIA said would prove his US citizenship.  

The immigration judge is not going to decide on the merits of the case today but the DHS can determine Robinson's release, and the immigration judge also can weigh in on this.   The Morton Memorandum on this point is clear:  ""In all case, any uncertainty of whether the evidence is probative of U.S. citizenship should weigh against detention."  Although directed to the DHS, it provides a statement about the law that should be taken into account by immigration judges in their bond determinations as well.  

The law against holding US citizens in custody under immigration laws is clear: it is never allowed, with no exceptions for criminal allegations, even for Ted Bundy.  Therefore, the DHS analysis of Robinson's criminal history -- which is itself a subject of dispute -- is completely irrelevant.  (The logic for this is fairly straightforward: if someone has either been charged or convicted, then criminal proceedings take care of this; the law for mandatory detention is for criminal "aliens" and not those who have persuaded the BIA they may well be US citizens.

Listen here as adjudicator Howard Rose on May 18, 2011 at the Houston Detention Facility screams at then pro se Robinson, who, over the televideo, is trying to explain he is a U.S. citizen and therefore should not be in deportation proceedings.   At one point he says he doesn't understand the proceedings and Rose says, "I don't care what you understand!" 

And listen here, where Rose at another hearing several months later is talking over Robinson about the rules of citizenship based on a fact-pattern that has nothing to do with the evidence Robinson was trying to present. Robinson's grandfather is not a "naturalized citizen," as Rose is insisting, but himself acquired U.S. citizenship at birth and had a Certificate of Citizenship with the AA on the top right hand corner that proves this. (Certificates for those who naturalize only have one A.)  

Above is what a Certificate of Citizenship looks like for someone considered a U.S. citizen at birth:

And this above is from the NATURALIZATION certificate of Robinson's mother

Both of these images are from the certificates in the file Howard Rose was looking at when began yelling Robinson.

Robinson's case has been heard by three EOIR adjudicators, two of whom have since resigned (Howard Rose and Jimmie Benton.)  They made a couple of poor decisions on which Immigration Judge Saul Greenstein relied and that seem plain wrong.   Not just that, Benton and especially Rose berated and insulted Robinson, including cutting him off and calling him "insolent" when Robinson, pro se, tried to explain the citizenship law that applied to his case.

Another point Robinson claimed in his appeal is about prejudgment, not only on the claim of his US citizenship but also the failure of the immigration judges to take into account the "mitigation exception" "because the information in the indictment does not allege any amount of drugs" (BIA 02/12/2014). As it turns out, the conviction record also does not state an amount.  

Over the next few days I'll be posting on how an ICE agent lied on Robinson's I-213 (arrest report); the abuse he and the rule of law endured at the hands of the immigration courts and ICE attorneys; and a factual record consistent with his assertion that he indeed is a U.S. citizen.

Of special concern is that on the first recording for 5/15/12 there is a reference to ICE sharing its legal analysis with Rose --  the ICE trial attorney (sounds like McPhail) says someone in his office is writing up a memorandum and he volunteers to show it, redacted, to the IJ.  However, there is no copy of this in the record.  This would seem to be illegal.  If the DHS wants to keep its internal briefings to themselves that's one thing, but to only show it to the immigration judge and not the opposing party is illegal and one of a littany of basic civil rights violations Robinson is now enduring.

Thursday, November 7, 2013

Ex-Immigration Judge Jimmie Benton to US Citizen: Go tell it to the government

 CAUTION: This Post Contains Digital Audio Material That May Be Offensive To Some Civil Rights Attorneys

Houston Correction Corporation of America
Immigration Courts, July 10, 2013

  Retired Immigration Judge Jimmie Benton
Highlights EOIR Management and Training Weakness

Frank Serna wrote me from Houston CCA in June, where he'd been locked up for 14 months.   An immigration judge in 2004 held a hearing and found credible his mother's testimony and other evidence of his U.S. citizenship and terminated proceedings, but in 2012 Immigration and Customs Enforcement ignored Frank's narrative and their own records and brought him in again.  He was surprised, "ICE picked me up in 2009 and let me go."  After a six month sentence in Laredo in 2012 for drug possession he thought he was free, "But then when I got out, ICE was there, and I was thinking, 'Why are they picking me up?'"

Obviously this just had to be a huge mistake.   Serna, whose best language is English, said, "It seemed like a last minute decision."  Once he was in an immigration court one he figure'd he'd explain everything and be released.

But that's not what happened.   On May 8, 2012 Immigration Judge Jimmie Benton said he heard the 2004 recording in which Immigration Judge Cary Copeland in Dallas had terminated the proceedings.  According to the records, the government had failed to prove Frank was an alien and waived appeal.

Mail box ICE Houston CCA Visitors, 10800 Export Plaza
 Benton ignored the prior termination order based on a full hearing and kept Serna locked up.  Benton implies Serna's failure to obtain a Certificate of Citizenship is grounds for holding him at CCA  But unlike most of the population, the government had already brought Frank to immigration court and failed to prove his alienage.  Thus Frank is the last person who should need additional documents from the government to avoid deportation hearings again.  The government already knew it lost its case. Unless it could show it was closed without prejudice or fit some other exception, their day in court had come and gone.

Entrance to Houston CCA Immigration Court, photo by Sam Niiro

At the hearing on May 8, 2012 Frank, without funds for an attorney, tries his best to stave off this unlawful and unjust deferral of his freedom.  He tries to squeeze in between Benton's interruptions the correct legal analysis to explain how the law and facts confirmed his U.S. citizenship, but Benton cuts him off,  "That's for the government to determine, that's not for you to determine.  If the government determines you are not a U.S. citizen you can try to convince me."

 In other words, in some strange legal world of his own creation, Benton had decided that immigration courts are not part of the government, and also that he could have another agency make a determination that under res judicata was his to make.

Listen for yourself

Andrew Free, Serna's attorney, said of the May 8, 2012:
I have rarely had such a visceral reaction to a piece of audio. It's just infuriating. I found myself screaming at the disembodied voice of the judge in my laptop. 
About a year later (May 31, 2013),  Benton "separated from the EOIR" according to Lauren Alder Reid, a public affairs official at the Executive Office for Immigration Review.  Benton says he retired.  On June 7, 2013 Houston Immigration Judge Saul Greenstein terminated proceedings on the basis of reviewing the 2004 recording and immigration court order at the time.  Under Benton, the hearings had dragged out for over a year and Benton ordered him deported.  Greenstein, aware of all this, held the first hearing on June 3, 2013 and four days later Serna was released.

With unlimited resources at its disposal, and backdoor channels to sway Citizenship and Immigration Services agents from issuing people like Frank Serna Certificates of Citizenship -- more on that later -- ICE is appealing Greenstein's order.
Frank picking up mail informing him government will be appealing the immigration judge decision to terminate deportation proceedings
 Frank is having a rough time finding work in Texas.  E-verify is not his friend.  And he still needs to fight the government to remain in the United States. Attorney Andrew Free (who represents me in FOIA litigation) is now representing Frank before the Board of Immigration Appeals and is looking to help Frank close this chapter of his life sooner rather than later.

And Benton?  I saw him in his old grim, windowless court at the Houston CCA in July.  He was there to barter with the ICE attorney for his client's bond, along with the dozen other private attorneys.  I heard it was his first time back in his old court since he left.  The incongruity of the situation was palpable but it was business as usual, though Benton seemed to get a better deal from the ICE attorney for his client than the other attorneys did, $4,500 compared to the median $7,500.

Benton's Recollection of the Frank Serna Case and Others
We spoke today by phone. I asked him about the Frank Serna case and others in which the word was that Benton refused to allow hearings unless respondents first filed N600 applications.  He defended this practice, "I tell them, that way they have two bites at the apple," a phrase that I indeed heard verbatim from respondents and attorneys who had appeared before him.  "That way if they are unable to convince the government, they have an opportunity to try to convince me."  Again, pretty much what he told Serna during that hearing.

But all the cases I'd heard about, including Serna's, showed ICE attorneys in ex parte communication with the CIS and Benton rubber-stamping the denials.  I asked Benton if he ever terminated proceedings on the basis of US citizenship after an N600 application had been denied.  He couldn't recall any.

Benton said that the paperwork for the N600 applications helped prepare for the hearings, but the rationale only worked for the government attorney and himself.  He could not produce any reasons for why it would be beneficial for a US citizen to have to wait in detention for an N600 decision instead of having the hearing before Benton.  This isn't to say it's not a fair strategy for IJs who have confidence in their own abilities to independently evaluate an administrative record, just that Benton lacked the training and qualifications to do this, and admitted as much.  (Greenstein, on the other hand, is a former attorney in the Office of Immigration Litigation.)

And indeed when Serna's denial came back (via the government attorney, who gave a copy of it to Serna the day of the hearing), Benton just read it verbatim as part of the record for preparing the deportation order, and failed to countenance Serna's arguments about the evidence his mother shared with the immigration court in 2004.

Benton told me that if someone objected and wanted to have the hearing they could, though that does not seem plausible, at least for Serna.  In fact, even attorneys told me that Benton refused to have hearings unless they filed N-600 applications.

Benton also told me that he interviewed Serna's mother and made his determination only after he had reached her, or someone whose phone number Serna said was hers, and found the information she gave him not sufficient.  I was pretty sure that in that time frame, Frank's mother was deceased and asked if perhaps he was confusing that event with the hearing he'd listened to from 2004.  Benton then and in a subsequent email was adamant about having spoken with Serna's mother and that this was during a hearing.

After we hung up I listened to all the hearings.   At the September 12, 2012 hearing, Benton asks Serna about whether he reach his mother for documents or other assistance and Serna says, "Both my parents are deceased."  I'd be happy to give Benton the benefit of the doubt on this.  After all the guy's heard thousands of cases.  I don't think he lied per se about what he did, but he did misrepresent his temperment.  

After the N600 denial, which appears to have been accomplished in coordination with the ICE attorney, when Benton is ordering Serna's removal, Serna is agitated.  Making the same exact points that Greenstein makes a few weeks later, Serna points out that on the basis of his mother's testimony in 2004, the Dallas IJ terminated proceedings because he believed Serna was a US citizen.  Benton says, "We've got somethhing here that's more significant than the recollection of your mother. we've got documents."  Not only do the recordings show that Benton knew he could never call Serna's mother, or someone claiming to be her, they also show that he repeatedly dismissed the possibility that Serna might gather additional evidence to show that his father had filled out an INS form without quite understanding the question and thus misstated the first time he was in the United States, indicating it was 1954.  

During the hearing Serna says, "He was working in the Galveston docks in 1944" and asks to be released so he can obtain evidence of that.  Benton asks him how and Serna says he'll just go down there.  Benton laughs and says, "That's not going to happen" and orders Serna deported

Here's the verbatim text from the email I received today from Jimmie Benton following our conversation, when I sent him a link to the hearing where he tells Serna to file an N-600 application, quoted in full with his permission:
Sorry. I can not listen to the recording at my office because there are
no speakers attached to my computer. will listen to it this evening.

Regardless, I will swear to you that I called the person he identified as his mother to receive from her the information she provided to IJ Copeland. There was no written decision in the ROP explaining how he arrived at his decision.

Yes, my general policy was to require N600 to be filed before I would consider hearing evidence of US citizenship. By my way of thinking that gave respondents two opportunities to establish their claim, organize their evidence and at the same time provide me the DHS position on the citizenship claim.. In a number of cases DHS found they were citizens, issued certificates of citizenship and motioned to terminate proceedings.

I do recall instances were DHS refused to adjudicate the N600 because the fee was not paid and they would not issue a fee waiver. Those cases I decided without DHS' adjudication.

Based upon the two cases you brought to my attention I was obviously flawed in my analysis of the citizenship claim. It would also be fair to say that I was weak in the area of citizenship. This was definitely something that EOIR should have addressed in the form of training. The substantive IJ training involving active give and take, questions and learned input from colleagues has been sorely missing for several years now.

I retired on May 31, 2013. None of my decisions have ever been the subject of discipline, admonishment or attention by the Chief Judge. The one complaint against me in my nearly 18 years on the bench involved an off the record statement I made to Respondent's attorney wherein I told her that if the case was remanded I would understand if she ask that I recused myself (this was an LPR cancellation matter).

My decision to retire was manifold: retirement eligible since 2011, lack of professional respect for OCIJ management because my immediate supervisors could not find there way around an immigration court, lack of meaningful training, crushing case load, the current flux in the immigration laws (not comfortable with issuing removal orders for people who may in the near future be eligible for releif) and my desire to enter private practice where there is no pressure to be financially successful.
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