Saturday, June 18, 2016

"PBZ" (aka J. Dan Pelletier?) Reveals Atlanta IJs WERE Using Boilerplate [And Incorrect] IRS Analyses

  http://www.luminarium.org/encyclopedia/oldstarchamber.gif
From article on the Court of the Star Chamber.

Atlanta IJs coordinating their rulings. Headquarters meddling in individual case orders. Atlanta IJs misquoting tax law

Yesterday I bumped into an email from "PBZ"* to Assistant Chief Immigration Judge (ACIJ) Gary Smith.  It documents everything Atlanta practitioners knew but couldn't exactly prove: 1) The Atlanta IJs were coordinating their rulings; 2) EOIR headquarters is meddling in individual case orders; and 3) Atlanta IJs do not follow the law, and in fact cannot even quote it accurately.   And correspondence from PBZ indicates that Board decisions depend on the staff attorney who writes them, not the Board members.

This is from the AILA trove of IJ Misconduct Complaints obtained through FOIA litigation.  My Northwestern colleagues and I are moving from our quantitative to qualitative analyses of the complaints.  After reviewing the randomly selected complaints, I am now focusing on PBZ--distinguished for the number of complaints he drew.

PBZ is responding to ACIJ Smith passing on a complaint from the Board of Immigration Appeals (BIA).  The BIA remanded because PBZ relied on government claims about IRS filings to issue an order finding the respondent lacked good moral character, without holding a hearing.  Here's the email from the IJ EOIR coded as "PBZ," and whom I believe is J. Dan Pelletier:
To refresh your memory, 2 yrs ago, the IJ's in [redacted] had our legal clerk, [redacted] research this issue.  After he researched it and gave us his opinion, Judge [redacted] wrote a decision on this issue and forwarded it to you for your revue before issuing it.  (May have forwarded it through [redacted].)  All [redacted] of the IJs in [redacted] took this position at that time.  Each of us have received decisions from the Board upholding us on that finding.  Please note I cited both IRS publications and Board cases. 
Since there does not appear to be any reason for this referral, I cannot help but feel that this action may have been taken against me in retaliation for purusing an arbitration case against EOIR.   (Email from PBZ to Gary Smith, November 24, 2009)
These few lines, from Complaint 42, completely blows the cover for any pretense of judicial integrity or the judicial independence of immigration courts.  First, the IJs in Atlanta had together decided to use perceived IRS violations as grounds for categorically inferring poor moral character for all cases before them. Second, their decisions in individual cases are being vetted through an agency supervisor. And third, PBZ is just wrong about tax law!

PBZ alleges that the reason his decision of October, 2008 was referred to Smith was harassment and speculates as to "[w]hether [a transcription error] was deliberate misconduct on the Board's behalf" (Complaint 69, p. 20).

Immigration Courts are not Judicial
We now have proof that adjudicators are collectively and categorically deciding orders for all their cases that by law mandates the use of discretion for individual relief.  Furthermore, EOIR headquarters knows about this, facilitates this, and then lamely tries to cover this up.  PBZ is effectively calling Smith out on being disingenuous.  (To paraphrase, "Dude, WTF?  You KNEW we are doing this because you signed off on it!")

MaryBeth Keller, who then and now supervises the IJ misconduct complaint process, saw these emails and ignored them.

You think the district court judges meet to decide that any defendant whom the government alleges has committed tax fraud automatically will be found guilty of unrelated charges without a trial?  How about running a draft decision up the chain to see if an appellate court judge will like it?  In fact, this is even worse: the adjudicators are running their decisions by the people who write their performance evaluations and set their pay. 

Also, misconduct investigations for Article III judges typically are run by independent panels or commissions, for state and federal courts.  But EOIR misconduct investigations are triggered by Board members and overseen by the adjudicators' supervisors.  The actual process is identical with a review for any other bureaucracy trying to keep its field employees on track.  When PBZ asks Smith, "do these responses go to the Board?" (Complaint 255, p. 26) he is wondering about how his response as an employee to a supervisor is going to affect how they treat his orders--his earlier correspondence indicates his belief that if, as an employee, he antagonizes the Board, then they will retaliate by remanding his orders and this could affect his reputation if not his salary.

(Pay for real judges is uniform, but EOIR adjudicators are unionized civil servants and their salaries are tied to seniority and performance.)

In short, in a few words of Complaint 42, PBZ has provided the smoking gun proving what many of us had put together from a number of sources and encounters: the immigration courts that are run by government attorneys are fancy offices for bureaucrats who dress up in black.  When they meet and decide on a rule across all cases, they are making policy, not providing justice.  Some of the government attorneys at other offices are incredibly smart, thoughtful, and judicious, but too many others are like PBZ and the colleagues he describes in Atlanta.  (For another complaint against PBZ, Smith writes the wife of a detained respondent that PBZ's failure to comply with the Board remand for a bond was in Smith's discretion, and that it would be "inappropriate for me to intercede" in a matter before the immigration court (Complaint 161, p. 12).

IRS "Resident Alien" IS NOT the same as a "Legal Resident Alien" under Immigration Law
Finally, the decision rule on "resident aliens" PBZ is using is wrong.  The respondent in this case appears to be a Gambian woman who was applying for discretionary relief and met the requirements for physical presence and the absence of a criminal record.  She had filed for an Earned Income Tax Credit (EITC).  PBZ misquoted the IRS rule, and pretermitted her claim for relief on the grounds that the EITC is available only to U.S. citizens or legal residents.  In other words, PBZ incorrectly inferred the woman committed fraud, and used this to deny her claim for discretionary relief without a hearing.

The problem: PBZ spends so much time trying to deport people using immigration law that he is apparently blind too the actual text for other agencies.  PBZ, claiming to quote the IRS from 596 ch. 1, rule 4 writes: "'You must be a U.S. citizen or a lawful resident alien all year.'"  But the text itself says, "You must be a U.S. citizen or a resident alien all year."



The rule as quoted by PBZ:




Tax law uses a "Substantial Presence" definition of a resident alien that is not the one PBZ was using:
An alien individual is a resident alien if the individual meets the substantial presence test. An individual satisfies this test if he or she has been present in the United States on at least 183 days during a three year period that includes the current year. 
Further clarifying, in a different document, the IRS states:
Tax Credits. U.S. resident aliens generally claim tax credits and report tax payments, including withholding, using the same rules that apply to U.S. citizens. The following items are some of the credits you may be able to claim: child and dependent care credit, credit for the elderly and disabled, child tax credit, education credits, foreign tax credit, earned income credit, and adoption credit. For further information, see Form 1040 and its instructions.
(Just to be on the safe side, I found the IRS publication 596, Rule 4 on resident aliens for 2008 and the language is identical.)

Finally, PBZ confirms that staff attorneys are behind the Board orders: "[O]n several occasions the Board has upheld my findings of lack of GMC [good moral character] for failure to file taxes.  On other occasions they have found failure to file taxes insufficient to find lack of GMC.  As we discussed, it just depends on what member (or perhaps more accurately, which staff attorney) happens to handle the case" (Complaint 69, p. 20, April 2010).

The upshot: Smith is gone, and so is Grace Sease, another Atlanta adjudicator and former INS attorney. But Keller, Pelletier and of course William Cassidy still remain.  (My hunch is that he's the one who ran the draft IRS opinion by Smith.)  Cassidy also is the guy who deported U.S. citizen Mark Lyttle and whom I am suing because he ordered guards to throw me out of the lobby of the Atlanta immmigration courts and then lied about it.  When I filed my complaint about these events, of April 19, 2010, I also pointed out to Smith that Cassidy that morning had been categorically denying bond to respondents who had not submitted 10 years of IRS income tax forms.  Smith found Cassidy only made individualized determinations.  Too bad we didn't have this email when we were deposing him...
Federal District Court Judge Orinda Evans derailed the case, bestowing on Cassidy absolute judicial immunity.  My attorneys Bruce Brown and Ray Lerer are presently working on our appeal. 

*Narrative material from other complaints refers to PBZ as a former trial attorney in the same court where he was appointed an IJ.  J. Dan Pelletier is the only IJ under the supervision of Smith who meets that criterion and was appointed in the time frame indicated; plus the content of the complaints match up with everything others and I have observed about Pelletier first-hand.

Other snippets of note from PBZ:
PBZ response to BIA referral, Complaint 302:  
The Board remands, finding that PBZ mischaracterized the record and made inaccurate credibility findings about the Respondent's fear her daughters faced female genital mutiliation if they were to return to Mali, thus meeting the standard of "extreme hardship."  In responding to the complaint, PBZ writes that he and others are on a "target list": "This remand to another Judge is patently transparent.  I know for 'plausible deniability' you have to eschew any knowledge of a target list of Immigration Judges the Board is keeping an eye on and applying a different standard of review.  Each of these baseless referrals from the Chairman of the Board is further evidence of such a list.  I request each member of the Board be placed under oath before the OPR and asked whether any such list exists" (May 2010, p. 26)

Sunday, April 10, 2016

Ret. Lt. Gen. Karl Eikenberry Praises Rwandan Government and Military, Ignores Assassinations and Civil Rights Abuses

Image
Karl Eikenberry, who may run Northwestern's Buffett Institute for Global Studies, center, January 29, 2015, source: Rwandan Ministry of Defence
Universities might have formed an effective counterweight to the military industrial complex by strengthening their emphasis on the traditional values of our democracy, but many of the leading universities have instead joined the monolith, adding greatly to its power and influence. 
-- Senator William Fulbright, 1967 speech introducing concept of the "military-industrial-academic" complex. 

 Northwestern University community reviewing appointment of Ret. Lt. Gen. Karl Eikenberry to lead Buffett Institute for Global Studies, new questions raised

(For background, please see Deanna Isaacs, Northwestern Wants to Hire a Former Afghan Commander, and Professors are Pissed, Chicago Reader, March 15, 2016.  For additional information, please see petition. For current status of debate, see Kelli Ngyun and Matthew Choi, "ASG, Faculty Senate Debate Eikenberry Appointment," Daily Northwestern, April 7, 2016.) 

 Believing that Karl Eikenberry's arrival in September will stay on track, despite intense faculty and student opposition, some faculty have come forward to endorse him.  With little direct information about his background, they have been relying on their private conversations with him over beer or other meetings, or have yielded to administration pressure as well as inaccurate statements about his time at Stanford and the search process, the position criteria, and the position responsibilities.

The information here is addressed to them, including the colleague who told me last week that unless evidence comes out that Eikenberry is a war criminal, the appointment likely will stay on track.  I disagreed, hoping that "not-a-war-criminal" is not the  standard for the keys to the Buffett Intitute's largest office.  More to the point, at the time he said this, my colleague was not aware that Eikenberry, while not shown to be a war criminal, is cheerfully in league with them.  These entanglements and possibly others --  Eikenberry and the NU administration will not release his c.v. -- cannot be erased, nor should they be ignored.

Eikenberry Goes to Rwanda
Last year, during and after a visit sponsored by the Rwandan Defense Force Command Command and Staff College, Eikenberry repeatedly and enthusiastically endorsed without qualification the brutal regime of President Paul Kagame.

In Eikenberry's own words:
What I’ve seen on [the] ground has far exceeded in terms of performance of this country I could imagine ... and [I] come here to find how this country and the people, the military has been able to rise from the ashes, sorry [sic] to speak, and see a vibrant society which is coherent, prosperous, and a sense of unity. I look at Rwanda serving as a very great example not only for this region of Africa, but actually globally.  (Ministry of Defence (MOD) emphasis added)
The trip encompassed several cities in Rwanda.  On February 2, 2015, Eikenberry met with Minister of Defence, James Kabarebe.  Kabarebe and Rwanda's President Paul Kagame are both named in a 2010 United Nations report as responsible for the genocide of Congolese and Rwandans.

Eikenberry shakes hands with Rwanda's Minister of Defence, James Kabarebe

A February 4, 2015 article covering the visit states:
[Eikenberry] further noted that he discussed with the Minister of Defence “the ways to institutionalise and legalise our military to military ties”, he said. He reiterated that deepening educational ties was investing in future relationship between people, faculty to faculty, soldier to soldier.  The Minister of Defence underlined that the military education was very promising both for Rwanda and the United States.


uncaptioned photo from MOD report on Eikenberry visit, Eikenberry on right

The MOD report notes that Eikenberry would "recommend to the United States to continue maintaining good relations with Rwanda diplomatically, politically, economically and militarily."

It appears as though Eikenberry was specific enough that the training benefits promised were a "package [that] is really quite helpful," according to Major Oyoo Peter.

At no point does Eikenberry indicate any interest in obtaining educational opportunities for Rwandan students who are not in the military.

What's Wrong With Rwanda's Government and Military?

This is a topic for a course or book.  Here's a quick summary of expert views on Rwanda, and below is a discussion of the relevance of this for the Northwestern appointment.

Congressional testimony by State Department Assistant Secretary Steven Feldstein in May, 2015, shortly after Eikenberry's glowing reports, reveals an entirely different story about Rwanda:
When it comes to the human rights situation in Rwanda, we see three trends of note. First, political space in Rwanda and the overall human rights environment continues to shrink. There are reports of targeted killings, and an increasing number of reports of disappearances and harassment of civil society groups and opposition parties. Second, this trend is reinforcing the wrong lessons for Rwanda– particularly that a country can continue to experience robust economic growth and foreign investment even while repressing its citizens further and reducing democratic space. This is not a sustainable path. At some point – if unchecked - human rights violations will begin to affect Rwanda’s economic performance, stability and the willingness of foreign investors to pump in outside capital and do business. Third, Rwanda’s human rights records is setting a disturbing precedent for the region and continent. Other countries are carefully watching Rwanda’s model of economic liberalization and political repression. In my discussions, counterparts frequently point to Rwanda and question whether protecting the rights of their citizens matters if they can achieve substantial economic development.
Either Eikenberry is clueless about Rwanda, thinks it's fine for autocrats to assassinate, disappear, and jail citizens who press too hard for accounability and democracy, or he is deliberately misrepresenting Rwanda's record and its lessons for the region (possibly for pay), or some combination of the above.

Here's how one journalist describes Rwanda's current president, who changed the Constitution to remain in office:
Filip Reyntjens, a Belgian scholar whom many consider the world’s foremost expert on Rwanda, describes Kagame as “probably the worst war criminal in office today.” In an interview, Reyntjens told me that Kagame’s crimes rank with those perpetrated by former Iraqi president Saddam Hussein or Sudanese leader Omar al-Bashir, who is wanted by the International Criminal Court on charges of genocide, war crimes, and crimes against humanity.  (Howard French, "Is Kagame a War Criminal?" Newsweek, Jan. 14, 2013)
A 2010 article discusses Kagame's role in more recent jailing and assassinations of dissidents:  "[W]henever Hutu politicians have started to gather power or criticise the government, it has usually meant their imprisonment, exile, disappearance or, in the case of Seth Sendashonga and a few others, unsolved assassination."

The 2015 World Press Freedom Index ranks Rwanda 161 out of 178 for press freedoms.

Of note is that Kagame was trained at the US Army Command and Staff College at Fort Leavenworth in 1989, clearly implicating the military training partnerships Eikenberry is cultivating today with the ongoing cycle of bloodshed in Africa and elsewhere. 

Since 2013, the same Rwandan army Eikenberry is defending has been jailing and killing dissidents, and flaunting the rule of law, according to Human Rights Watch: "The authorities detained people unlawfully in unofficial detention centers, including in military custody; some were held incommunicado and ill-treated."  Here are links to recent posts:

Rwanda Turns the Clock Back on Access to Justice, March 11, 2016

East Africa: Little Progress, Worsening Repression, January 27, 2016

Why Not Call This Place a Prison? Unlawful Detention and Ill Treatment in Rwanda's Gikondo Transit Center, September 24, 2015

Rwanda also has offered its services as a dumping ground for African refugees from elsewhere transferred there by Israel.  A 2015 report by the International Refugee Rights Initiative finds Israel forcing Eritrean and Sudanese asylum-seekers into Rwanda and Uganda, in violation of international law and United Nations mandates.

This list could go into much more detail about specific, recent assassinations to which Kagame's government has been linked, along the lines of Putin's Russia.  Do Northwestern faculty and students want their leader of global studies to be an apologist for perpetrators of genocide and assassinations?  If this information had come out earlier, would his appointment have gone this far?  What does this tell us about the search process and Henry Bienen's and the university's due diligence? 
 
Why Does this Matter for the Eikenberry Appointment? 
My hunch is that some of my colleagues, especially in political science will claim that Eikenberry is doing his best to work with a bad government to make it better.  That was my first thought when I heard about the visit.  But if one thinks of the photos taken and disseminated -- making Kabarebe and the military seem diplomatically palatable -- as well as the spin about Rwanda being an "exemplary" country, it starts to seem as though Rwanda has hired Eikenberry to improve its international reputation, obtain U.S. military training, and acquire weapons.

This recent and possibly ongoing work on behalf of the Rwandan military -- Eikenberry has not responded to questions about this -- with or without compensation, seems to completely rule out allowing Eikenberry to lead the Buffett Institute, especially in the context of Eikenberry's expertise on mililtary and civilian education as inducements for arms sales, discussed below.

Not only in Rwanda, but also when on return to Stanford, Eikenberry remained silent on abuses by the Rwandan government and military.  In a March 13, 2015 in-house interview with Stanford's Institute for International Studies, Eikenberry speaks only glowingly of Rwanda.  Why publish pro-Rwanda propaganda on a Stanford website and omit any reference to the military's unlawful violence? For instance, of the military officers whom he met:
They had an extraordinary grasp of the political, security, and development problems that their civilian leaders were attempting to solve. Most realized that without regional cooperation that the prospects of their own country prospering were quite limited. So I was impressed with how they viewed security as having both national and collective dimensions.
Of course other analysts, including the U.S. government, have understood Rwanda's interest in "regional cooperation" to mean selective organizing among militias to raid neighboring countries and silence critics.  Even if this is not what Eikenberry has in mind, failing to hold Rwanda accountable for any wrong-doing at any point in any of his statements, particularly those published under his control at Stanford, smacks of being on the Rwandan payroll, a possibility that a release of an accurate resume would either confirm or falsify.  Eikenberry and the NU administration continue not to release the c.v. on which they relied when hiring him.

Eikenberry also did not reply to a February query about his speaking engagements and fees. I am waiting for a reply to a late request for more details about his ties to the Rwandan government, thus far unanswered.  (Any responses from Eikenberry will be appended here.)

Up until now we've debated Eikenberry's use of soft power on behalf of the U.S., but here he's advancing soft power for Rwanda. 

If a health expert about to assume leadership of a medical institute were touting baseless claims about the health advantages of Coca Cola and refusing to release his resume or answer questions about employment by the beverage industry, Northwestern presumably would find this a deal-breaker.  Why cut a potential employee slack when he misleads people about a government causing death and not sugar?

In the context of Northwestern's control by large weapons and military equipment manufactuers (Boeing, General Dynamics, and Caterpillar) and Eikenberry's long-standing interest in U.S. arms sales, this is worrisome.   (The GD link is to a recent article about Northwestern trustee and GD CEO Phebe Novakovic, also a former CIA employee, speaking of the military-industrial-academic complex--Smith College students didn't even want her on campus for a visit, and yet she helps run Northwestern.)

Eikenberry Has Expertise in Foreign Military Sales
Putting someone with a keen interest in foreign weapons sales and the use of university educations to cement poses additional problems.

Eikenberry writes:

For instance, prospective foreign purchasers of United States equipment may be convinced not only by the quality of the particular hardware in question, but also by such factors as impressive and credible American security guarantees, access to much needed technology through offset agreements, and opportunities to study in advanced civil and military institutions.* [Emphasis added.] ....

* Offsets are defined as "compensatory, reciprocal trade agreements arranged as a condition of the export sale of military material and support services. They are, in effect, countertrade in the defense sector." See Grant T. Hammond, "The Role of Offsets in Arms Collaboration," ed. Ethan B. Kapstein, Global Arms Production: Policy Dilemmas for the 1990's (New York: University Press of America, 1992), p.205.

Source: Karl Eikenberry, "Explaining and Influencing Chinese Arms Transfers," McNair Paper 36, Institute for National Strategic Studies, February 1995.

Military Offsets -- with citations to be added 
Northwestern has been singled out as a recipient of student enrollments responsive to U.S. government or private firm side agreements since at least 1973, when Northwestern took students from Portugal in exchange for the U.S. receiving rights to use the Lajes airfield in the Azores, then occupied by the fascist Portuguese government.  (The State Department paid Northwestern to effect a secret US 1971 agreement with the Portuguese government. In the late 1970s, the funding was distributed through the same program, but disguised as Fulbrights.)

In more recent years the use of student scholarships for U.S. study to incentivize weapons sales has flourished.   Shortly after the U.S. invaded Iraq, the payments by private military firms for university, college, or professional schools admissions in exchange for foreign military sales was valued at over $100 million/year.

A Chicago-based consultant specializing in these transactions explained in a 1995 publication that many weapons sales match up on price and quality, leaving these side arrangements as enticements, including illegal but obscure and hard to punish bribes.  If a firm can promise a country rep that his child has a guaranteed entrance into a U.S. university, that's a game-changer.   That firm now is based in Evanston.

If you put this background information together with the make-up of Northwestern's board and Eikenberry's avowed commitment to Rwanda's military, this raises questions.  The leader of the Buffett Institute is the perfect position for implementing military sale offset arrangements that use university placements.  This arrangement also makes Eikenberry's lack of PhD important in a way that has not been previously discusssed.  The fact that Eikenberry has no problem advocating for Rwanda bodes poorly for how he will use his platform at the Buffett Institute, which likely would draw criticism for being run by the guy who's shaking hands with Kabarebe.

Without a PhD and tenure, and with an extremely lucrative compensation package, Eikenberry lacks the conventional protections of academic freedom and could not easily turn his back on requests by the trustees.   (For instance, without tenure, my colleagues and I could never publish about these matters.)  Eikenberry's lack of intellectual freedom of course affects the institutional arrangements of those working under him, not to mention the independence of the Buffett Institute, part of which seems destined to be turned over to foreign and military policies that violate academic integrity and other values as well should he take over.
  
CODA:  Last Week
NU Provost Dan Linzer's intimidation of students -- warning them last Wednesday evening just before the Associated Student Government debate about bogus "defamation" problems with their resolution urging withdrawing the Eikenberry appointment -- and Linzer's instigation of the Faculty Senate's Executive Committee to rush putting together a one-sided package of information and faculty endorsements released with no advance notice less than three hours before the Senate meeting will be scrutinized later.   

These actions are further evidence that NU's engagements with Qatar, and now Rwandan, dictators have proven inspirational for our administration.  Northwestern is being run increasingly like a Gulf State, and not just on their behalf; meanwhile, Qatar shows no signs of democratizing since the founding of "Education City," and remains notorious for its labor trafficking violations, jailing dissidents, and media repression (ranked in 2015 #115 out of 163, well behind poor countries such as the Dominican Republic (#63) and Togo (#80); and there is no sign of progress--Qatar is down five places from 2013 despite the eight year presence of the Medill Journalism school.

Petition on Behalf of Academic Integrity-Sign Here

Monday, February 29, 2016

Please Support Northwestern Faculty Trying to Stop NU Board from Appointing Ret. Lt. Gen. Karl Eikenberry to Run Global Studies Institute


Ret. Lt. Gen. Karl Eikenberry, Former Ambassador to Afghanistan (2009-11), speaking to Rwandan soldiers.  
See Edison Akugizibwe, "Rwanda, U.S. Strengthen Military Ties," Feb. 4, 2015

Please read, sign, and circulate this petition of NU President Morton Schapiro and Provost Daniel Linzer circulated today by Northwestern Faculty, Staff, Students, and Friends in Support of Academic Integrity, an ad hoc group seeking your support to stop Boeing, General Dynamics, Caterpillar, and Abbott Laboratories from installing their guy to run the premiere global studies research institute at Northwestern. (These are the firms whose CEOs and directors dominate the Northwestern Board of Trustees.)

My colleagues and I will be making a presentation to the Faculty Senate on Wednesday, March 2 and would love your support.

Here's the link to the petition to "Withdraw Appoint of Ret. Lt. Gen. Karl Eikenberry to Run NU Buffett Institute"on change.org:

The Deportation Research Clinic is part of the Buffett Institute for Global Studies at Northwestern.  So is a research working group on the Global Research University, of which I am a co-convener.  Eikenberry could and appears likely to discontinue both.

The details are in the petition. Please sign and spread the word on Facebook and other social media.   Thank you!!!

Friday, February 19, 2016

How Many DOJ Attorneys Does It Take to Deport a U.S. Citizen? Boston Hearing Today


photo from Robert's mother, provided to Cardozo Law School Immigrant Rights Justice Clinic for lawsuit exhibit

Oral arguments on a Plaintiff's Motion for Summary Judgment are scheduled for today at 2 p.m. in Boston.  Six federal attorneys are named on briefs claiming someone with copious documentation of birth in Lawrence, Massachusetts is not a U.S. citizen

As reported here previously, Robert Dominguez was born in 1979 in Lawrence, Massachusetts and deported in 1999 to the Dominican Republic.  A decade later, in 2009, he procured a U.S. passport and returned.  In 2011, he was arrested on a drug charge and Immigration and Customs Enforcement (ICE) and the State Department decided to ignore copious photographic and documentary evidence and rescind Robert's passport.

(A previous team of civil attorneys led by a lawyer without expertise in citizenship and immigration law filed a lawsuit under the Federal Torts Claims Act, but did not first fix Robert's legal status; the case was dismissed.)

Robert is out of jail, but terrified of being deported again.  For Robert, citizenship is not a protection against deportation, and a run-in with the law means a ticket to the DR.  (I'm no expert, but I imagine that being hounded being ICE is not standard treatment for addiction.)

After receiving documents from the Deportation Research Clinic at Northwestern University, the Cardozo Law School Immigration Justice Clinic stepped in to see if they could figure this out.  

In 2013, a team led by Clinic Fellow Andrea Saenz met with Robert and initiated negotiations with the government.  When common sense failed to prevail, the Clinic went to court.  Under 8 U.S.C. § 1503 (Denial of Rights and Privileges as a U.S. Citizen), a judge can order the State Department and the rest of the U.S. government to fix their records and recognize Robert's rights as a U.S. citizen.  

In the ensuing years, Attorney Saenz and the Immigration Justice Clinic students amassed a shocking amount of evidence, including a photograph of Robert's mother pregnant with Robert, as verified by their location in a Lawrence hospital with another family who gave birth in that same time frame.  How many of us born here would have that?  And how about the Baby Dominguez hospital bed tag she saved?


The information above matches the information on Robert's birth certificate that was contemporaneously filed at the Lawrence City Hall, where it exists today.  

The one problem with the birth certificate is that Robert's mother's legal first name is Juana and not Patria.  To obtain sponsorship for a "green card" she was using the name of her husband's sister, who died at the age of nine.  You can read the details of this piece here. The bottom line is that none of this discredits the copious photograpic and documentary evidence of Robert's birth in the United States.  

The DR birth certificate Robert's mother procured when he was a toddler caused confusion in 1999 when Robert was 19 and in a remote detention center without contact with his parents or an attorney.  But in the intervening years this was all straighted out and the U.S. Consular office issued Robert a U.S. passport in 2009.

It was seemingly straightened out again in 2011, when the State Department's Diplomatic Security Service initiated a fraud investigation.   According to filed statements, "On October 13, 2011, Agent Baldwin conducted a field visit to Lawrence City Hall to personally verify the validity of the Massachusetts birth certificate Mr. Dominguez had used to obtain his passU.S. passport." 

Having found the original, authentic birth certificate with information that matched the biographical information in Robert's file, one would think the case would be over and the government would find a different way to waste taxpayer funds.  

Instead, Agent Douglas Baldwin decided that the birth certificate with Robert's name belonged to another individual.  Baldwin decided that Robert somehow came into "possession of a valid birth certificate that belongs to another person but bears his same name, childhood address, month, and year of birth" (Plaintiff Brief, Dec. 18, 2015).  Neither Agent Baldwin, nor the six federal attorneys denying Robert his lawful recognition as a U.S. citizen have been able to find the "other" Robert Dominguez, a different individual who has to exist to claim this is not Robert's birth certificate.  

According to the Plaintiff's Motion, 
Defendant's theory is that this 'doppelganger' Roberto Carlos Dominguez was born in the same town where Plaintiff grew up; was born in the same month and year as Plaintiff, early November 1979; at the time of his birth, had a mother living at 70 Cross Street, the same address where Plaintiff and his parents lived throughout his early years; and that, through some incredible coincidence, Plaintiff was able to obtain this individual's birth certificate.  (Pl. Motion of Law for Sum. Judgment, Dec. 18, 2015, p. 16)
 The Plaintiff brief also points out that, "Unlike the U.S. birth certificate, there is no corroborating evidence of a Dominican birth for Plaintiff, such as hospital documents or evidence of Plaintiff's mother pregnant or even present in the DR in 1979." (Pl. Motion of Law for Sum. Judgment, Dec. 18, 2015, p. 19)

I reviewed the facts in this case Wednesday with students in "The Rule of Law" seminar I teach.  We were discussing that week's assigned reading of Franz Kafka's The Trial (Der Prozess).  The focus was on Kafka's insights about how the law occupies our interior lives and that we everyday people are the ones who make it happen, not the remote officialdom one finds in texts by Max Weber.  At the same time,  Kafka points out, we preserve a view of the law as universal and beyond the specificities of individual quirks and demands.
 
We, including agent Douglas Baldwin -- with whom I spoke with just long enough to hear a gruff, sincere federal employee who was unmistakably a Boston native -- as well as his attorney colleagues, are the individuals responsible for how we engage the law, including when it comes to a poor kid from Lawrence.  (Baldwin sounded sincere in his desire to speak with me and need to have it cleared with his supervisors; no idea about his motives for deciding there must be another guy out there with the same address and mother as Robert, someone who has never been located and from whom Robert stole a birth certificate.)

By referencing a document from the DR his mother obtained to make the law fit his family's needs - so he would have something that gave him the same parents names as those of his siblings - the following attorneys are relying on a thin, obvious fiction and ignoring the thicker, more believable fiction of his still arbitrary state identity bestowed by the State of Massachusetts and the Government of the United States.

These attorneys are:

Carmen Ortiz, U.S. Attorney
Rayford Farquhar, Asst. U.S. Attorney
Benjamin Mizer, Principal Deputy Asst. Attorney Gen. Civil Division
William Peachey, Director, District Court Section, Office of Immigration Litigation
Elizabeth J. Stevens, Asst. Director, District Court Section, Office of Immigration Litigation,
Brian C. Ward, Trial Attorney, Office of Immigration, Civil Division, US DOJ

Enough with the harassment, yes?  Close the case.  Instead of putting our government's resources into persecuting U.S. citizens, how about supporting attorneys to represent those presently detained and facing a gang of agents and lawyers dedicated to removing people from their la
wful place in the United States?  Are the attorneys above especially otiose robots doing their jobs, or are they offering disingenuous pseudo-legal feints to avoid losing?  Either way, right now, they're the ones fraudulently misstating Dominguez's true identity and trying to sanction government kidnapping.

====
2/20/20  UPDATE:  Attorney Saenz reports that at yesterday's hearing the judge seemed impressed by the amount of evidence her team amassed proving Robert's birth in the United States.  I know it's work for Saenz and her students, but it wouldn't be the worst thing in the world if they lose they Motion for Summary Judgment and the case goes to trial.  That way the jury and public can see for themselves the absurdity of the government's position and, by extension, the irresponsibility of those advancing it. 

Also, thanks to Dan Kowalski, editor of the LexisNexis Legal Newsroom Immigration Law, for linking to this story and coming up with a better title than the one of my original post, "How Many U.S. Attorneys and Assistant U.S. Attorneys Does It Take to Deport a U.S. Citizen?"  I just changed mine to the one he used because Dan's title also more accurately reflects the distribution of attorneys across various DOJ components.

Monday, January 18, 2016

U.S. Citizen Released after 18 Months in Houston CCA ICE Jail

  U.S. Government STILL Capturing Its Own Citizens and Holding them as Aliens

Vox in a Box - Dog Chasing His Tail – Kobol the Tail Hunter!http://www.voxboxcomics.com/wp-content/uploads/2013/07/kobol-tail-hunter.gif

 

Case Clogs Crowded Immigration Court Docket
Immigration and Customs Enforcement Wastes Taxpayer Money,
Ignores Immigration Judge Request to Investigate and Drop Case Based on Lack of Evidence

 Deportation Research Clinic Intervention Helps Free Another U.S. Citizen

On January 5,  2016, Lorenzo Palma, with a lawyer finally by his side (Nashville-based civil rights attorney Andrew Free), won his release from the Houston CCA immigration jail.  Ever since immigration judge Saul Greenstein flagged the possibility that Mr. Palma, 39, unbeknownst to himself, might have acquired U.S. citizenship from his mother, who, born in Mexico in 1948, unbeknownst to herself, might have acquired it from her father, the family had been on a scavenger hunt to find evidence the government already had to prove Lorenzo's maternal grandfather Lazaro Palma was born in the United States and resided there 10 years, five of which were after the age of 16.   

The search required the location of decades-old records, ranging from Lazaro Palma's 1914 Texas birth certificate to a 1950 manifest to various other documents and affidavits, all of which cost the family time, worry, and money.

Lorenzo's is a case study in the different outcomes when respondents are subject to either the "Goofus"-s or "Gallant"-s who preside over immigration courts, and the need for everyone who is in ICE custody to be assigned a government-funded attorney with expertise in immigration, citizenship, and civil rights law.  

(Goofus and Gallant are children's book characters who illustrate situational choices that are either infantile, intemperate, and injudicious, or mature, thoughtful, and judicious.)


 "Goofus and Gallant - October 1980" by Source (WP:NFCC#4). Licensed under Fair use via Wikipedia - https://en.wikipedia.org/wiki/File:Goofus_and_Gallant_-_October_1980.jpg#/media/File:Goofus_and_Gallant_-_October_1980.jpg

IJ Goofus rushes through cases, ignoring the possibility respondents might be U.S. citizens.

IJ Gallant makes careful inquiries of respondents to ascertain if they may be U.S. citizens.
 
Although the immigration court benchbook and various press releases from the Executive Office of Immigration Review suggest that immigration judges conduct inquiries of pro se respondents to evaluate the possibility of U.S. citizenship, Lorenzo, like hundreds before and after him, had the misfortune of encountering Goofus Richard Walton, who has a cavalier attitude toward the respondents before him and outside the presence of observers fails to inquire of the U.S. citizenship status of respondents, which requires as well inquiries about the citizenship status of their parents and grandparents.  

(On July 30, 2015 Walton threw a bit of a temper tantrum in talking over and ignoring an attorney's arguments to have a bond hearing. The attorney and public were denied a reasoned response to her detailed legal analysis as to the custody implications of the government not meeting its burden of proof; even if Walton disagreed, the public deserved the adjudicator's reasoned analyses of the case law she cited, not just a denial by fiat.  The attorney had flown out from Los Angeles and abided by other requirements he imposed. I was appalled by what I observed in that hearing and others Walton conducted, and requested a copy of this recording under the FOIA, which does not require a privacy waiver for the release of public hearing recordings, just written records. You can listen to him rant here.  1 of 2, 2 of 2

The deportation order was terminated, confirming the government had a weak case, as the lawyer advised Walton; I lost touch with her and do not know further details.)

Lorenzo's travails began a few months before he was supposed to be paroled from the prison at Huntsville, Texas.  Per standard operating procedure, in mid-February, 2014, an ICE agent impersonated a legal worker and spoke with Palma on the pretext of "trying to figure out your case" for parole purposes, Palma told me.  From this interview she obtained information the government used for its arrest report and Notice to Appear (NTA).  Until Lorenzo and I were reviewing his documents in late July, 2015, it never occurred to Lorenzo that she was with ICE, "No one had ICE shirts; they spoke with a whole group of us," he told me.  

In  June, 2014, still at the Huntsville prison a month after he was supposed to be released on parole, he appeared in a televideo hearing before adjudicator Walton, who went through the motions of informing Lorenzo of a list of overburdened pro bono attorneys who rarely provide individual representation.  Walton never asked questions that would ascertain whether Lorenzo might be a U.S. citizen, a matter of some complexity. 

 Lorenzo wrote every attorney and organization on the list.  No one responded. 

Meanwhile, on September 22, 2014 IJ Greenstein took over the case.  At their first encounter, he asked about the citizenship status of Lorenzo's mother and grandfather, and immediately ascertained that Lorenzo's genealogy was consistent with a potential claim of U.S. citizenship.  From that first hearing he repeatedly cajoled ICE agents to investigate, and challenged the government attorney for claiming that Lorenzo had produced no probative documents when it turned out that he had -- after persistent questioning Greenstein discerned the ICE attorney did indeed possess a copy of Lazaro's Texas birth certificate and that ICE had failed to follow up on this with further research.   

You can listen here--note IJ Greenstein's attentive patience and the government attorney John McPhail's (sp?) indifference to the fact that his own carelessness may mean a U.S. citizen is being falsely imprisoned.  

Over the course of numerous hearings one discerns IJ Greenstein doing work that should be done by the government or an attorney, and only as a last resort by an immigration judge.  At a hearing in March, 2015, exasperated by ICE failing to heed his request to interview Lorenzo's mother, IJ Greenstein places a call to her himself and, on the record, waits while she pulls off the freeway before finally figuring out the narrative but not proof of hers and Lorenzo's U.S. citizenship.  

Toward the end of their telephone conversation, Rita, who up until that point had been addressing IJ Greenstein's questions through the interpreter as she might have been discussing old family affairs with an inquisitive neighbor, realizes exactly what is happening and is overwhelmed.  IJ Greenstein has made no promises and is stern about Lorenzo's burden of proof; but IJ Greenstein's tenacity in pursuing the truth moves Rita to tears.  The interpreter translates, "It is very hard to find a judge like you, very considerate, very hard to find anywhere a judge like you."

At the behest of IJ Greenstein, YMCA attorney Tatiana Obando pushed Lorenzo's elderly stroke-afflicted mother to fax Ms. Obando relevant papers that she in turn submitted to the court; but Ms. Obando lacked the resources to do her own investigations or to appear in court on Lorenzo's behalf.

When, by sheer coincidence, I first met Lorenzo while observing hearings for the detained docket on July 30, 2015 Lorenzo told IJ Greenstein that he was giving up and on the verge of agreeing to sign out and be deported to Mexico, a country where he had never resided and in which he was born only because his mother could not afford Texas hospitals.  Even more poignant: Rita, who acquired U.S. citizenship from her father Lazaro, remained in Mexico and was raised by her grandmother, and not her parents in Texas, because, she told me, "I didn't have papers."

The rest of the story behind Lorenzo's release is one of a little organizational assistance on my part and Attorney Free's hard work, time, and dedication to giving Lorenzo the attorney everyone in deportation proceedings needs. (Free is an attorney who collaborates with the Deportation Research Clinic, of which I am the director; Free represents the Clinic in our FOIA litigation and has sued the government for detaining U.S. citizens encountered in Clinic research.)

Just after the ruling in his favor, Lorenzo called me from Houston CCA, elated and also aware of how easily it could have gone the other way,  "I was praying, please God, don't let me go in there by myself."   Lorenzo had spoken with attorney Free the week before, but wasn't sure his family could put together the funds for Mr. Free's plane trip.  Lorenzo was overwhelmed with gratitude when on the morning of January 5, he first laid eyes on Mr. Free, a solo practitioner who had cobbled together the cash he received from Lorenzo's common-law wife, Jacqueline, with his own frequent flier points and somehow made it for the hearing.  

Confronted in court for the first time by a lawyer, the government conceded it had not met its burden of proof and waived appeal. Lorenzo was released hours later and is with his mother and catching up with his brother and sister nearby; Jacqueline recently visited and is back at her job in Colorado.  Lorenzo will finish up his parole in Texas and then return to their home near Denver in August.

Legal Analysis
The fact-pattern above is fairly typical.  It has two implications: First, it further underscores the need for everyone in removal proceedings to have a government-funded attorney, to guarantee no further violations of the well-recognized due process rights U.S. citizens have not to be deported as aliens, and to ensure the legal rights of everyone else in deportation proceedings, as the Second District Court judge pointed out this fall in an order responding to the National Immigrant Justice Center Watson civil complaint.

In addition, this case raises tough questions about the reasoning behind the recent bizarre Ninth Circuit decision deferring factual findings of U.S. citizenship to a single district court judge.  I will discuss this in my next post, updating the filings by the Cardozo Immigration Justice Clinic on behalf of U.S. citizen Roberto Dominguez, but it is obvious that cases with so much at stake and of such complexity -- in which the government is the main source of the evidence on which the respondent must rely for her rights -- allowing a single individual to make such decisions cedes too much power to the government.  This deference to the fact-finding of a single judge goes directly to the logic of the Sixth Amendment: a right to trial by a jury is not just protection against an authoritarian government, but also an assertion that single decision-makers should not be granted unilateral authority.  Especially because those in deportation proceedings at present do not have a right to a government-paid attorney, they have an even greater claim on the government's institutions of judicial review.

Thursday, September 17, 2015

Colorado Judge Swats Down GEO's Motion to Reconsider Class Action Lawsuit Brought by Captive Labor Force, New Evidence of GEO Labor Violations

 

GEO claims paying people fair wages "will result in manifest injustice," and claims that ordering a trial by jury, i.e., the rule of law, "should be corrected before litigation in this case and other cases grows in scale."  (Menocal et al. v. GEO, Doc. 29, Motion to Reconsider, 2, August 4, 2015).

Federal District Court John Kane disagrees. (Doc. 31, Order, August 26, 2015).

In the latest round of motions from a lawsuit last October, GEO whined that laws designed to prevent exactly GEO's exploitation of labor had some other purpose, and that it would be absurd to follow their plain text.  One new argument was that the Plaintiffs had no expectation of fair payments for their labor.  And, GEO argued, it would really suck for them and other prison firms if the lawsuit were to proceed per the judge's previous order.

The judge's response, in two pages of text: the arguments either were the ones he already found unpersuasive from the first round, or a new argument that the Court will not consider "for the first time on a motion for reconsideration." 

New Documents Further Contradict GEO's Defense

 

Reimbursement invoices for the work program being released in dribs and drabs responsive to my FOIA lawsuit further document that GEO is making up its own pay scales and not just acting as a pass-through for ICE's $1/day payments last authorized by Congress in 1978.  Note that for GEO's Pearsall, South Texas facility, there is one column for the reimbursements from ICE and another for their own outlays.  This is consistent with other documents on which I reported in the working paper "One Dollar Per Day: The Slaving Wages of Immigration Jail, 1942 to Present," soon to be published in the Georgetown Immigration Law Journal.  (I'll fill in the link once it's published.)

This release further illuminates the conditions of a labor force compensated well below the minimum wage.  Excluded from these positions is the local community, once again highlighting GEO's violations of the Fair Labor Standards Act and the Trafficking Victims Protection Act (2008), codified in part in the statute prohibiting Forced Labor. 

According to18 U.S.C. 1589 (a) "Whoever knowingly provides or obtains the labor or services of a person by any one of, or by any combination of, the following means— (1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person ... shall be punished as provided under subsection (d)."

The variation in wages suggests a rudimentary labor market, one with radically depressed wages because of captivity, and not people chipping-in because of boredom to help keep GEO in business.  This is more evidence that GEO is basing its business on forced labor -- were GEO not operating on a business model that assumes they can physically control their workforce, they would need to be paying wages of more than one dollar per day or even three.

Section (d) states: "Whoever violates this section shall be fined under this title, imprisoned not more than 20 years, or both. If death results from a violation of this section, or if the violation includes kidnapping, an attempt to kidnap, aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title, imprisoned for any term of years or life, or both."

While President Obama's rounding out his term by using his executive authority to enforce labor rights, maybe he should call up the Department of Labor and send out a few inspectors to check out GEO's cleaning, kitchen, and laundry employment practices in Colorado, Texas, and elsewhere, and charge them with violations of the FLSA and the TVPA.  Or, they could visit facilities run by the Correction Corporation of America or any of the other ICE facilities that use the same business model.

Thursday, July 23, 2015

NPR Airs Story on ICE Private Prison Labor

NPR reporter Alexandra Starr covers lawsuit and slaving wages to those in custody under immigration laws.  Listen here.

Note that in response to my assertion that those in ICE custody are not exempt from the protections of federal labo laws, GEO notes the dollar/per day level in an appropriations Act, but fails to engage with the fact the appropriation level set expired in 1979.   Note as well that there are many other labor laws that have little to do with wages, and from which there is not even old law that exempts from coverage those working for private prisons firms.

This includes standards of the Occupational Safety and Health Administration, and which were found by a California agency to apply to apply to a California resident in ICE custody courtesy of the Mira Loma Sheriff.
 
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