Monday, October 31, 2011

Immigration and Detention: Women’s Human Rights Across Borders « Restore Fairness

Immigration and Detention: Women’s Human Rights Across Borders « Restore Fairness

Cross- posted from our Bell Bajao blog. Written by Eesha Pandit, Breakthrough’s Women’s Rights Manager

As she went into labor Juana Villegas was shackled to her hospital bed. Living in Tennessee, she gave birth while in custody. She had been pulled over while driving and taken to jail when the officer discovered that she did not have a valid drivers license as was undocumented. She went to prison, where she went into labor. Her ankles were cuffed together on the ride to the hospital and once there, Juana begged the sheriff to let her have at least one hand free while in labor. She was denied.

Watch Juana’s story:

In another instance, Maria, also undocumented, was more than 8 months pregnant and on the road with her husband and two US born children when they were pulled over by a police officer in Tuscon, Arizona.

Tuscon police spokesmen claimed in an interview with the Huffington Post, that the family had been stopped as part of a “random license plate check,” which indicated that insurance on the vehicle was suspended. When Maria’s husband did not have a valid driver’s license and admitted to being in the United States without documentation, the authorities called the Border Patrol.

Maria asserts that her water broke when she was roughly pushed a Border Patrol car. She soon went into labor and was not allowed to be with her husband as she gave birth and he was deported within the week. Inside her delivery room with her were two armed Border Patrol agents.

Watch Maria’s story:

These women, living miles apart, share an experience of giving birth while in custody. It is an experience shared by more and more women in the United States and around the world. In the US specifically, incarcerated women, particularly those who are undocumented, face a vast set of barriers to accessing health care, as do their children and families. What do Maria’s and Juana’s experiences show us?

They show the additional points of vulnerability faced by women who are immigrants and refugees. They are at greater risk to experience violation of their human rights either at the hands others in the community or at the hands of the state, because they often live outside the protections afforded by citizenship. Yet another border is created around them. This border keeps civil society protections just out of reach. Their very identity is criminalized leaving them no recourse for justice.

In another illuminating example, immigrant and refugee women, like all women, face the risk of domestic violence. But their status as immigrants or refugees often means that they face a tougher time escaping abuse. They often feel trapped in abusive relationships because of immigration laws, language barriers, social isolation, and lack of financial resources. They worry about what will happen if they go to the police. Will they be sent away? Will their families be torn apart? Will they have any financial resources available to them? How will they survive?

These challenges facing immigrant women are particularly acute for women who are undocumented. How can an undocumented woman who is considered a criminal by simply being in the US appeal the government to uphold her human rights? As it turns out, this is exactly the tough spot that we put undocumented people in. And it is exactly the reason that human rights should be afforded to everyone regardless of their citizenship status, in the US and everywhere else in the world.

No one should have to deliver their child while cuffed to a hospital bed, or be forced to deliver their baby in the presence of armed guards. Yet this is what happened to Juana and Maria, and countless other women in the US and around the world. Their stories show us something very important: Borders shift. Citizenship policies change. But human rights must remain constant.

Photo courtesy of bellbajao.org

Sunday, October 30, 2011

Keeping Communities Safe? A Debate On S-Comm as Enforcement Policy : Int...


The Vera Institute of Justice and New York Law School present a panel discussion:

“Keeping Communities Safe? The Case For and Against Secure Communities as Immigration Enforcement Policy”

Secure Communities is a federal program that seeks to realize U.S. Immigration and Customs Enforcement priorities by identifying and removing noncitizens who have been involved in criminal activities. Critics say that the program undermines trust between immigrant communities and law enforcement and has led to the deportation of thousands of people who have no record of committing serious crimes.

Please join Vera and New York Law School for a panel discussion featuring four speakers with differing perspectives on the program’s value and effects.

Speakers

Gary Mead, executive associate director of Enforcement and Removal Operations, Immigration and Customs Enforcement (ICE)

Peter Schuck, Simeon E. Baldwin Professor Emeritus of Law and adjunct law professor, Yale Law School

David Soares, district attorney of Albany County, New York

Sunita Patel, staff attorney, Center for Constitutional Rights

Moderator

Susan Shah, program director, Vera’s Center for Immigration and Justice

http://www.facebook.com/event.php?eid=278029368895198

For more information on VERA, you can start here:

http://www.vera.org/content/about-us
http://www.facebook.com/verainstitute
http://twitter.com/#!/verainstitute
http://www.youtube.com/user/verainst

Keeping Communities Safe? A Debate On S-Comm as Enforcement Policy : Sus...


The Vera Institute of Justice and New York Law School present a panel discussion:

“Keeping Communities Safe? The Case For and Against Secure Communities as Immigration Enforcement Policy”

Secure Communities is a federal program that seeks to realize U.S. Immigration and Customs Enforcement priorities by identifying and removing noncitizens who have been involved in criminal activities. Critics say that the program undermines trust between immigrant communities and law enforcement and has led to the deportation of thousands of people who have no record of committing serious crimes.

Please join Vera and New York Law School for a panel discussion featuring four speakers with differing perspectives on the program’s value and effects.

Speakers

Gary Mead, executive associate director of Enforcement and Removal Operations, Immigration and Customs Enforcement (ICE)

Peter Schuck, Simeon E. Baldwin Professor Emeritus of Law and adjunct law professor, Yale Law School

David Soares, district attorney of Albany County, New York

Sunita Patel, staff attorney, Center for Constitutional Rights

Moderator

Susan Shah, program director, Vera’s Center for Immigration and Justice

http://www.facebook.com/event.php?eid=278029368895198

For more information on VERA, you can start here:

http://www.vera.org/content/about-us
http://www.facebook.com/verainstitute
http://twitter.com/#!/verainstitute
http://www.youtube.com/user/verainst

Friday, October 28, 2011

Argument preview: A new Bivens remedy? : SCOTUSblog

Argument preview: A new Bivens remedy? : SCOTUSblog

Lyle Denniston Reporter

Posted Thu, October 27th, 2011 6:11 am

Argument preview: A new Bivens remedy?

At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on a plea to create a new constitutional remedy against private companies who work for a federal government agency. The case is Minneci, et al., v. Pollard (docket 10-1104). Arguing for five individuals who served as private company employees at a federal prison in California will be Jonathan A. Franklin of the Washington office of the law firm of Fulbright & Jaworski, who will have 20 minutes. Representing the federal government as amicus in support of those employees, with ten minutes of time, will be Pratik A. Shah, an assistant to the U.S. Solicitor General. Arguing for the prisoner who sued will be John F. Preis, a law professor at the University of Richmond in Richmond, Va.

Background

An old civil rights law, passed by Congress in 1871 and sometimes known as the “Ku Klux Klan Act,” provides a very wide-ranging option for individuals to sue for money damages if their constitutional rights have been violated — but that law’s expansive Section 1983 does not apply if the violator works for the federal government. Congress passed that Act to deal with wrongdoing by state and local government officials. Congress, of course, has the power to create a similar damages remedy for constitutional violations by federal officials, but it has not done so. The Supreme Court did it, on its own, almost exactly 100 years after passage of the Klan Act. It did not matter, the Court majority said then, that Congress had not provided such a right to sue. Now, the current Court is set to consider expanding that theory of constitutional liability.

In what was seen at the time as a historic and potentially far-reaching ruling on constitutional law, the Supreme Court in June 1971 decided to create a damages remedy against federal officers who violated someone’s right of privacy under the Fourth Amendment. That was the 6-3 decision in Bivens v. Six Unknown Federal Narcotics Agents; it involved the forced entry into an apartment in New York City and other misconduct by federal drug officers, who had no warrant. One of the dissenting Justices at the time, Harry A.Blackmun, protested that “the judicial legislation, which the Court by its opinion today concededly is effectuating, opens the door for another avalanche of federal cases.”

Justice Blackmun, in that instance, was not a good prophet. Since the original Bivens decision, the Court has been very sparing in the kinds of claims it will allow under the theory of that precedent. In fact, there are only three: the Fourth Amendment violation at issue in Bivens itself, a sexual harassment claim against a member of Congress by one of his secretaries (Davis v. Passman, in 1979), and a claim that a prison inmate died because of negligence in providing medical care by officials (Carlson v. Green, in 1980). The last of those rulings, of course, came 31 years ago, and, after that, the Court regularly has turned down requests to recognize any other claim. In one such rejection, in 2001, in the case of Correction Services Corp. v. Malesko, the Court ruled by a 5-4 vote that private prison corporations cannot be sued under Bivens.

At issue in the new case before the Court — Minneci, et al., v. Pollard (10-1104) — is whether a damages lawsuit may be pursued against the employees of a private company working for the federal government — one step removed from the normal concept under the Bivens precedent creating liability for a federal officer, as such. That sweeping right to sue was established by the Ninth Circuit Court, in a decision that conflicts with rulings of two and perhaps three other federal appeals courts.

The case began in April 2007, at a federal prison in Taft, Calif., operated under contract by a private company, Wackenhut Corrections Corp. (now part of The Geo Group). An inmate, Richard Lee Pollard, was working at the time in the prison’s butcher shop. (Pollard was at Taft serving part of his 20-year sentence for drug trafficking and firearms crimes. He has become known as a “frequent filer” – a prison inmate who regularly sues over grievances; Pollard has filed at least ten lawsuits.)

A cart had been left in the hallway outside the kitchen where Pollard worked, and he tripped over it. He fell, and ultimately was found to have broken both of his elbows. In his lawsuit, he claimed that prison employees made him use his arms in very painful ways, refused initially to provide a splint for his injuries even though a doctor had suggested one, and put him to work at prison tasks before his injuries had healed. His lawsuit, a Bivens claim for damages, contended that he had suffered four violations of his Eighth Amendment rights not to be cruelly punished, over a period of several months. Of the five Wackenhut employees who remain in the case and filed a Supreme Court appeal, three had worked in prison medical jobs, one was a guard, and one was a kitchen supervisor.

A federal judge rejected the claim against Wackenhut, relying on the Supreme Court’s 2001 decision in the Malesko case. The case against the individual Wackenhut employees was dismissed on the ground that they were not acting in any official capacity when Pollard was injured, and that, in any event, Pollard was not lacking in any other remedy, since he could sue for damages under California law. That result was overturned by a divided panel of the Ninth Circuit Court. It ruled that the Wackenhut employees were, in fact, acting officially, because they were carrying out a “fundamentally governmental function.” It borrowed that concept from decisions in cases based on the old Ku Klux Klan Act’s Section 1983. (The Circuit Court agreed that Wackenhut could not be sued.)

The fact that Pollard might sue under state law, the Circuit Court indicated, did not make a real difference. While there might be a separation-of-powers problem if the Court created a Bivens damages remedy in a situation for which Congress had established an alternative federal remedy, the Circuit Court said, there is no such problem when the only alternative is under state law. The Circuit Court did acknowledge, though, that the outcome it decreed would mean greater liability for private employees working at a federal prison than for any federal employees at such a facility, since the federal workers are entitled to a limited form of legal immunity. Although the Circuit Court denied en banc review, eight of its judges dissented from that refusal.

The five private employees took the case on to the Supreme Court, filing their petition last March.

Petition for certiorari

The five prison workers — Margaret Minneci, Jonathan E. Akanno, Robert Spack, Bob D. Stiefer and Becky Maness — raised a single challenge in their petition, arguing against the creation of liability for employees of a private firm working for the government under contract, at least where the suing individual has an alternative remedy and where the sued workers are not actual or contractual employees of the government. They contended that the Circuit Court had extended Bivens “far beyond its carefully prescribed contours,” in addition to creating an express conflict with rulings of other federal appeals courts.

The petition noted that, in its Malesko decision a decade earlier, the Supreme Court had left open the question of Bivens liability for private employees working in a government facility. (In the majority’s opinion in Malesko, then-Chief Justice William H. Rehnquist wrote that “the parties agree that the question whether a Bivens action might lie against a private individual is not presented here.” In that case, individuals had also been sued, along with the corporation, but the claim against the individuals had been dismissed on procedural grounds.)

Noting the Court’s repeated refusal since 1980 to imply other Bivens claims, the petition quoted the criticism of Bivens by Justice Antonin Scalia, who had said in 2001 that “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action,” and who added that it and its two extensions should be limited to the exact circumstances present in those cases.

Moreover, the prison workers contended that a key to the Court’s three prior constitutional liability decisions had been the absence of adequate alternative remedies. Inmate Pollard, it argued, did not face that prospect. And, the petition said, even if there were alternative remedies available, the Court had also made clear that a new Bivens claim should not be recognized when there are “special factors counseling hesitation” before doing so. There are strong reasons not to do so here, they argued.

DRI, a private organization that seeks to curb civil lawsuits in general, joined in urging the Court to hear the prison workers’ case. Given how common it is for private employees to work under contract for federal agencies, DRI argued, the Ninth Circuit ruling may well extend — if it is upheld — far beyond the prison setting.

In response, Pollard’s lawyers argued that the case had not proceeded far enough to develop sufficient facts on which to make a decision, and, while conceding that there was a conflict among the courts, they contended that this alone was not enough for the Court to step in. Moreover, they argued that the Ninth Circuit ruling did not actually contradict Supreme Court precedent, but followed a 1974 Supreme Court decision (West v. Atkins) holding a private doctor liable for failure to provide adequate medical care to a prison inmate, on the theory that the doctor actually was working in the role of a “state actor.”

The Court granted review of the prison workers’ petition on May 16, and the case then went over to the new Term for briefing and argument.

Merits briefs

The five prison workers’ brief on the merits closely paralleled the arguments they had made in winning a grant of review: the narrowness of the Bivens precedent, the significance in such cases of the absence of any alternative remedy, and the inequity of exposing private employees at a federal prison to more severe sanctions than would be faced by federal employees themselves. The absence of alternative remedies, the brief asserted, should be sufficient reason on its own to refuse to extend Bivens to another context.

The Court’s past and consistent refusal, for more than 30 years, to extend its precedents is an indication, the brief argued, that the Court has operated on the assumption that Congress is better equipped than the courts “to balance competing policy considerations” on liability for private employees working under contract for a federal agency.

At the merits stage, the private employees have picked up the fervent support of the federal government. Like the employees, the Solicitor General’s merits brief relied heavily upon the fact that Pollard could sue for damages under California law, and, it argued, probably do better than in a Bivens lawsuit. Under California law, the federal brief said, Pollard could sue for medical malpractice, and also could sue for negligence “based upon a jailer’s duty of care to prisoners.” Those are superior options, it contended, because “state tort law imposes a lower standard of liability than the Eighth Amendment, and employees of private prison corporations generally do not enjoy the special immunities conferred on government employees acting in the same capacity.”

The government, too, argued in favor of leaving the matter to Congress.

The private advocacy group DRI, as in the petition stage, filed a merits brief further supporting the prison employees, predicting “an onslaught of lawsuits seeking Bivens damages.” It contended that this “is a hard bill to swallow in this era of soaring budget deficits, reduced public and private resources, and congested court dockets. It also may have a chilling effect on the initiative taken by private contractor employees on behalf of the government.”

In Pollard’s merits brief, his counsel relied significantly upon the last Supreme Court precedent recognizing a Bivens action — Carlson v. Green in 1980. What Pollard is seeking in this case, against private employees working at Taft for the federal government, “is, in every meaningful sense, the same as that approved in Carlson” — a right to sue against prison personnel carrying out official duties.

The brief urged the Court not to make privately held federal prisoners “the only prisoners in the country, whether federal or state,” who are barred from enforcing their constitutional rights through a damages lawsuit. Indeed, the brief cited language from the Rehnquist opinion in Malesko to suggest that a prisoner’s remedy, if one it to be had at all, was against an individual who committed a constitutional violation, not against an institution or governmental entity.

In addition, the brief sought to stress — as the Ninth Circuit had — that the central question in determining whether an alternative remedy is available is whether there is an alternative federal remedy. Pollard has no such federal remedy, if he cannot sue under Bivens, the brief noted. Moreover, Pollard’s attorneys asserted, federal judges should not be put to the burdensome task of sorting through “a patchwork” of state-provided remedies when the prisoner is in a federal facility.

Finally, the brief said, a Bivens action is entirely “workable” in the federal courts, given their long familiarity with Section 1983 claims. “There is,” the brief said, “a large and ever-growing body of precedent distinguishing permissible from impermissible behavior, rendering the action asserted here workable.”

Pollard has drawn the amici support of civil rights and civil liberties organizations, arguing that the Court has never ruled that the availability of state law remedies bars a claim like Pollard’s, and that state remedies may in fact prove illusory; by a group of law professors, contending that the Court has often assumed — without deciding — that a Bivens remedy would be available in a case like this one; and by the government of Mexico, asserting that many Mexican nationals are being held in privately run detention facilities inside the U.S. — such as immigration detention centers — and thus may be exposed to the same kind of woes that befell Pollard.

Analysis

It is difficult, at the outset, to speculate that the Court took on the case for any other reason than to overturn the Ninth Circuit, and continue its unbroken pattern of three decades of refusing to extend Bivens beyond the three instances where such a remedy has been recognized.

If one looks to the precedent that seems nearest to this case, it perhaps would be the 2001 decision against liability for a private corporation operating a government prison (the Malesko case). That, arguably, is nearest because it involved the question of extending Bivens liability to a private actor. Five Justices who took part in that ruling remain on the bench — three from the majority (Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas), and two Justices from the dissent (Stephen G. Breyer and Ruth Bader Ginsburg). If the three in the majority remain skeptical about extending Bivens as a general proposition, it is entirely plausible that they could attract the support of Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to make a majority.

Thus, even if Breyer and Ginsburg were to pick up the support of Justices Elena Kagan and Sonia Sotomayor, they would still be one short of a majority.

What Pollard may have mostly in his favor is the possibility that the Court could decide that its precedents — relying heavily upon the absence of any alternative remedies as a rationale for permitting a Bivens action — do not really apply when the availability of remedies for a federal claimant like Pollard is one under state, not federal, law. Separation-of-powers principles have been very persuasive for the Court in refusing to create a new remedy if Congress had provided one. That is not a factor in Pollard’s case, he and his supporters have pointed out.

On the other hand, the question of available alternatives is only one-half of the formula the Court has used in deciding whether to create a Bivens remedy. The other half — that rather vague concept of whether there are “special factors counseling hesitation” — has been working repeatedly to defeat pleas for Bivens extensions. That factor could lead the Court to accept the argument of the private workers and their supporters that this is a matter better left to legislation, by Congress.

The Court is expected to decide the case next year.

Posted in Minneci v. Pollard, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument preview: A new Bivens remedy?, SCOTUSblog (Oct. 27, 2011, 6:11 AM), http://www.scotusblog.com/2011/10/argument-preview-a-new-bivens-remedy/

Voices from Inside Detention « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

Voices from Inside Detention « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

Voices from Inside Detention

October 28, 2011
by carlosperezdealejo

Written by Molly Lauterback, Immigrants’ Rights Project, Via ACLU Blog of Rights

We may be immigrants but we are still human beings. This is an experience I don’t want anyone to go [through].”

This is just one excerpt from the hundreds of letters we receive at the Immigrants’ Rights Project. Immigration detainees across the country have sent us their stories for years. We have letters from individuals who first wrote us in 2007 and again, three years later, still sitting behind bars while their immigration cases slowly move through the system.

The thousands of people who languish in detention on any given day deserve to have their voices heard. The Immigrants’ Rights Project began this story collection project to give these individuals a space to share their experiences and an opportunity to speak out about their lives in detention.

Click here to read through some of them. We will be adding more to our website periodically.

Learn more about immigration detention: Sign up for breaking news alerts from the ACLU, follow ACLU on Twitter, and like ACLU on Facebook.

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Thursday, October 27, 2011

New Detention Report by @LIRSorg Reconciles Immigration Enforcement with Humanitarian Concerns « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

New Detention Report by @LIRSorg Reconciles Immigration Enforcement with Humanitarian Concerns « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

OCTOBER 27, 2011

via Leslie Velez, Director for Access to Justice, at Lutheran Immigration and Refugee Service

New report explores how the federal government can enforce smarter, spend less, and preserve dignity

BALTIMORE, October 27, 2011 – On any given day, 33,400 immigrants, including 1,400 asylum-seekers, are held in a network of more than 250 immigration detention centers across the United States with little or no judicial review or access to a lawyer. Incarceration has become the default means of immigration enforcement and represents a widespread violation of human rights on American soil. Locking up migrants now costs U.S. taxpayers $1.9 billion a year and is expected to increase in 2012.

With intractable gridlock in Washington, comprehensive immigration reform has become a distant dream. Meanwhile the Obama administration has increased enforcement efforts claiming it must enforce the ‘law of the land’. In response to this deadlock Lutheran Immigration and Refugee Service (LIRS) releases Unlocking Liberty, a report that explores key policy reforms that can relieve the suffering of hundreds of thousands of immigrants who are unnecessarily detained every year.

“Immigration authorities have been presented with the false choice between immigration enforcement and the humane treatment of migrants,” said LIRS President and CEO Linda Hartke. “There are proven and effective alternatives to detention available that allow us to uphold two of our greatest traditions as a country: the fair treatment of vulnerable people and respect for the rule of law.”

Community-based alternatives have proven to be more cost-efficient and humane than detention. Since the 1980’s, projects operated by non-profit organizations in the United States and abroad have provided tailored supervision, case management, and legal and social services to participants resulting in high appearance rates in immigration court at a far lower cost to the government than traditional detention.

While alternatives to detention save the government up to $100 a day per immigrant, they also lower the human cost of prolonged and indefinite detention experienced by those whose lives are unnecessarily put on hold while the courts deal with the tremendous backlog of immigration cases.

“There is a fundamental difference between prudence and excessive precaution,” said Leslie E. Velez, Director for Access to Justice at LIRS. “And that difference is felt in the lives interrupted, the families separated, and the unnecessary psychological harm done to those who have experienced significant trauma.”

The report points to an individualized risk assessment tool as the first critical step in reforming immigration enforcement. Pivotal to determining the necessary level of supervision is a process by which every individual is screened to assess the likelihood of absconding or any imminent security threat. This in turn allows for a presumption of release to be established under which the government must prove a need to detain someone. Current mandatory detention policies fail to discriminate between immigrants who are a flight or security risk and those for whom detention is unnecessary or inappropriate.

“We need to look at migrants as individuals,” said Velez. “Once we can shift from a one-size-fits-all approach to an individualized case-by-case determination of who should be detained, we will quickly see how often detention is disproportionate to our needs and harmful to the lives of migrants.”

The full report, along with additional media, expert interviews, and resources, is available atwww.lirs.org/dignity.

About Lutheran Immigration and Refugee Service

LIRS welcomes refugees and migrants on behalf of the Evangelical Lutheran Church in America, the Lutheran Church—Missouri Synod and the Latvian Evangelical Lutheran Church in America. LIRS is nationally recognized for its leadership advocating with and on behalf of refugees, asylum seekers, unaccompanied children, immigrants in detention, families fractured by migration and other vulnerable populations, and for providing services to migrants through over 60 grassroots legal and social service partners across the United States.

Tuesday, October 25, 2011

Press Release: District Court Orders Release of Key ICE Memorandum

Press Release: District Court Orders Release of Key ICE Memorandum

Release: District Court Orders Release of Key ICE Memorandum

Oct 25th, 2011

CONTACT: B. Loewe, National Day Laborers Organizing Network, 773-791-4668; Jen Nessel, Center for Constitutional Rights, 212-614-6449, jnessel@ccrjustice.org; Sonia Lin, Cardozo School of Law Immigration Justice Clinic, 212-790-0213, slin@yu.edu

DISTRICT COURT ORDERS RELEASE OF KEY ICE MEMORANDUM
Court Criticizes ICE’s Efforts to Avoid Disclosure as “Offensive” to Freedom of Information Act

October 25, 2011, New York—Last night, Judge Shira Scheindlin ordered the Immigration and Customs Enforcement (ICE) agency to publicly disclose by November 1 a previously withheld internal memorandum that advocates believe will shed light on the agency’s legal justification for turning Secure Communities into a mandatory immigration enforcement program.

The decision follows motions for summary judgment filed by all parties in NDLON v. ICE about the memorandum. The government claimed the memorandum was exempt from disclosure under the attorney-client and deliberative process privileges. Plaintiffs the National Day Laborers Organizing Network, Center for Constitutional Rights, and Cardozo School of Law Kathryn O. Greenberg Immigration Justice Clinic argued the memo was improperly kept secret from the public in the midst of important policy decisions related to Secure Communities. Indeed, this summer, opposition to Secure Communities reached new levels with the Governors of Illinois, Massachusetts, and New York formally rejecting the program. In response, ICE announced that all of its Memorandum of Agreements with States were dissolved and that the program would be imposed unilaterally. Despite serious questions from States, local jurisdictions, and advocates about ICE’s legal authority to make the program mandatory, the agency continued to withhold information about its legal reasoning and sought to keep the legal authority memorandum secret.

The court ruled in favor of plaintiffs and determined the memorandum had been drafted to justify an already existing policy to make Secure Communities mandatory; that the government failed to prove it had kept the memo confidential; and that the agency had adopted the memorandum’s conclusions and analysis as its internal working law.

The National Day Laborer Organizing Network, Center for Constitutional Rights and Cardozo Immigrant Justice Clinic released the following statement in response to the court’s decision:

“Our organizations, along with a chorus of advocates and elected officials across the country, have been seeking to uncover the truth behind ICE’s decision to compel states and localities to participate in its dangerous Secure Communities program. The memorandum ordered disclosed is the only document to date that comprehensively describes the legal authority claimed by ICE in support of its position mandating state and local participation in the controversial program – a deportation dragnet that has raised concerns about racial profiling, due process, the ensnarement of U.S. citizens, community policing, privacy, and other issues.

The judge’s order shines a light on a program that has been plagued with secrecy and lies from its start. We agree with the court’s conclusion that, “an agency’s view ‘that it may adopt a legal position while shielding from public view the analysis that yielded that position is offensive to FOIA.’” We believe it’s also offensive to our democracy.

With this decision, the court has rejected efforts by ICE to “radically expand the government’s ability to resist FOIA requests” and has affirmed that FOIA exists “to promote honest and open government and to assure the existence of an informed citizenry in order to hold the governors accountable to the governed.” We urge the Obama administration to hold federal agencies accountable for their deception and mismanagement, to recognize the complete failure of the Secure Communities program, and to terminate it immediately. It’s time to restore trust and communities. “

For more information on NDLON v. ICE or to view the court order, visit http://ccrjustice.org/secure-communities.

In The Rush To Deport, Expelling U.S. Citizens : NPR

In The Rush To Deport, Expelling U.S. Citizens : NPR

In The Rush To Deport, Expelling U.S. Citizens

A drop house raid yielded several suspected illegal immigrants on April 29, 2010, in Phoenix. Northwestern University political science professor Jacqueline Stevens says some of the nearly 400,000 people deported during the past fiscal year weren't illegal immigrants.
Enlarge Ross D. Franklin/AP

A drop house raid yielded several suspected illegal immigrants on April 29, 2010, in Phoenix. Northwestern University political science professor Jacqueline Stevens says some of the nearly 400,000 people deported during the past fiscal year weren't illegal immigrants.

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October 24, 2011

The government is not shy about its success deporting people from the United States. Immigration and Customs Enforcement recently sent out videos of early-morning raids conducted across the country. Uniformed ICE agents are shown planning to capture suspects, followed by shots of the suspects being handcuffed and put into vehicles.

A record 396,000 people were deported from the country during the federal fiscal year that just ended. Some were caught in raids, while others were detained by ICE after being arrested by local police. But Northwestern University political science professor Jacqueline Stevens says some of those held weren't illegal immigrants at all.

"I think it's pretty fair to say that there's a low but persistent rate of people who are being held by ICE in violation of the law, who are U.S. citizens," Stevens says.

Mark Lyttle was deported to Mexico in 2008. Lyttle, who has a history of mental illness, gave ICE agents conflicting stories, telling them that he was a U.S. citizen and also that he was a Mexican to avoid an argument.

ICE apparently ignored records showing that he was born in North Carolina and had no relatives in Mexico. Eventually Lyttle returned to the U.S.

Earlier this year, the government admitted that another deported man named Andres Robles was a citizen.

It sent Robles a letter, with an odd offer.

The letter said the government was prepared to issue a certificate of U.S. citizenship to Robles, but said he would have to pick it up, adding that it realized it wouldn't be possible for him to do because he was deported.

The case of a Phoenix man, George Ibarra, isn't so clear-cut. He has been deported twice over the past 15 years while trying to prove his citizenship.

"I'm up against a big old juggernaut," Ibarra says. "You know, a bureaucratic juggernaut that just doesn't want to let go; you know they just keep trying to stick it to me."

Ibarra was being held in the Maricopa County Jail in Phoenix for shooting a gun into the air — in frustration, he says.

"I've been just sitting there in my house going crazy, man," Ibarra says. "My lawyer told me I can't do nothing, can't go to work till this thing's over."

Ibarra was a Marine. He has the Marine insignia — the eagle, anchor and globe — tattooed on his chest. He suffers from PTSD after being wounded in the first Gulf War. Ibarra grew up in Phoenix. What he didn't know was that his mother was born just over the border in Nogales, Mexico. That's where Ibarra was born. His mother brought him to Arizona when he was a baby; the fact that his mother has lived in the U.S. for decades, his grandfather was born in Arizona and, he says, his great-grandmother was born in California should make Ibarra eligible for what's called "derived citizenship."

"He never knew about this legal right to citizenship through his grandfather and his mother," says Luis Parra, Ibarra's lawyer. "He never knew about that."

Like many caught in ICE detention, Ibarra was ignorant of the law. The first time he was picked up, he faced nine months in the detention center in Florence, Ariz. That's when he made a mistake — when ICE said he could get out early if he voluntarily deported himself. He said yes.

"They put me on a bus and shipped me to Mexico," Ibarra says. "I was in Mexico. I was like, 'Where do I go? What do I do?' "

He turned right around with his military ID and driver's license and came back through the Nogales port of entry. Then he got into trouble with the local police again — a drug use charge. But now he had a deportation on his record, calling into question his claim to citizenship. Faced with another long stint in detention, he volunteered to be deported a second time.

"He made some mistakes, that's for sure," Parra says.

After Parra became Ibarra's lawyer, an immigration judge looked at the evidence and ruled that Ibarra does have a right to citizenship. But ICE has appealed that ruling.

"Why hasn't it stopped?" Parra asks. "Despite the fact that he's a veteran and despite the fact that he's a fourth-generation American?"

We asked ICE for an interview, but a spokesperson said the agency doesn't comment on specific cases because of privacy concerns. The government denies that it holds U.S. citizens in immigration detention.

But Stevens of Northwestern University says government policy allows people with a credible claim to citizenship to remain free while their status is determined. Stevens says the way deportation proceedings are conducted causes problems. Unlike criminal courts, immigration courts have few checks.

"I've never seen an ICE agent who filed an arrest report appear in an immigration proceeding," Stevens says. "Not once, and I've watched literally hundreds of these cases and not once do they have to go to court to be interrogated by a judge about the accuracy of the information that's presented."

Stevens looked at about 8,000 cases in just two immigration detention facilities. She found that about 1 percent of the time, people were eventually let go because they were U.S. citizens. However, that meant the citizens were held between one week and four years in detention.

Stevens says that when members of Congress hear the figure is 1 percent, they think it's not bad.

"However, if we think about the magnitude of our deportation process, that means that thousands of U.S. citizens each year and tens of thousands in the course of a decade will be detained for substantial periods of time in absolute violation of the law and their civil rights," she says.

In other words, in the rush to deport record numbers of illegal immigrants, the government may also be deporting people who aren't illegal immigrants at all.

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