Observe and Deport

The immigration service says it doesn't detain or deport US citizens. Except when it does.

| Thu Apr. 23, 2009 8:35 AM PDT

Salvador Rivera was born in Portland, Oregon, in 1979. At age 18, as he faced several arrest warrants, he adopted an alias and obtained a Mexican birth certificate. The ruse worked: When he was arrested by a Border Patrol agent in January 1998, Rivera assumed his false identity and was voluntarily deported to Mexico. Within days, he returned to the United States, reentering the country legally as a citizen.

A couple of years later, Rivera was convicted of drug possession and served a short jail sentence. Shortly after his release, the Immigration and Naturalization Service arrested him at a meeting with his parole officer. This time, Rivera asserted his American citizenship. Even after reviewing his original birth certificate and other documentation, an immigration judge denied his claim. The Immigration and Naturalization Service deported Rivera to Mexico in February 2001.

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For the next few years, Rivera lived in Juarez, just across the border from El Paso. Back in the states, his family found an attorney to represent him and his case eventually made it to the 9th US Circuit Court of Appeals. After a couple more years of legal wrangling, the federal government conceded that Rivera was in fact a citizen. In 2006, he was repatriated to the United States and the government agreed to pay $115,000 to cover his legal expenses. Writing for the majority, circuit court Judge Warren J. Ferguson acknowledged that Rivera "is no model citizen." However, he wrote, Rivera's criminal record and earlier attempt to conceal his citizenship could not alter the fact that as a United States citizen, he could not be deported.

As unusual as Rivera's odyssey may be, his case is also striking proof of what can go wrong when an American citizen gets caught up in the bureaucracy of the federal immigration system. And Rivera is not alone. As efforts to find, detain, and deport undocumented immigrants have ramped up (a record 350,000 people were deported last year), hundreds of American citizens have been at risk of joining the ranks of the deported. The immigration service insists it does not expel American citizens from the country. Yet tales like Rivera’s suggest that has done so more than it acknowledges.

Last year, the Vera Institute of Justice, a nonpartisan research group, found 278 people in 13 immigration detention centers around the country who said they would claim US citizenship to fight deportation. The study was conducted on behalf of the Justice Department's Executive Office for Immigration Review, which oversees the nation's 57 immigration courts, where removal, or deportation, proceedings are heard. Previously, the institute found 322 detainees with citizenship claims in 2007, and another 129 at six detention sites in 2006.

It is not uncommon for immigration detainees to make false claims of citizenship, and the Vera Institute and Department of Justice have not verified whether any of these 700 potential citizenship claims were valid. But Jacqueline Stevens, a political scientist at the University of California-Santa Barbara, says she has documented more than 160 cases of American citizens who have been detained or deported in recent years. "I've been stunned that the detentions and deportations have not caused more public outrage," she says. Few people care about the issue beyond civil rights advocates, she notes. She also speculates that "immigrant rights folks for good reasons don't want to pit citizens against noncitizens. They don't want to claim that US citizens have more rights than [noncitizens]."

In a recent Los Angeles Times story coreported and written by the Center for Investigative Reporting (CIR), ICE maintained it does not detain or deport US citizens. (The INS became ICE in 2003 with the formation of the Department of Homeland Security.) Agency spokesman Richard Rocha said that immigration detainees face removal only if no evidence is presented to prove that they cannot be deported. At a 2008 congressional hearing on the issue of citizen deportations, another ICE official testified that the bureau "immediately releases individuals who are US citizens or who may have legitimate claims to derivative US citizenship." Jim Hayes, ICE's director of detention and removal, recently told the Associated Press that he was aware of only 10 cases of Americans detained on suspicion of being in the country illegally over the past five years. Citing privacy concerns, Hayes declined to elaborate on individual cases.

In internal memos obtained by CIR, Hayes wrote last year that immigration officers may make warrantless arrests of people who claim to be citizens or are unsure of their citizenship status only if the officers have reason to believe that they are in the country illegally. In her research, Stevens says, she has found that ICE screens jail and prison inmates by ethnic or racial background, singling out people of Hispanic descent for interviews or detention. The agency strongly denies that it targets suspected noncitizens based on their names or ethnicity. "Racial profiling is absolutely not tolerated, and we investigate any allegations of racial profiling aggressively and thoroughly," says Rocha. Officially, immigration officers initially assess whether someone may be a legal resident based on their personal documents, or lack of them.

As most Americans don't carry around passports or birth certificates, citizens who are caught up in immigration sweeps or imprisoned for other reasons may find it difficult to confirm their status. Verifying citizenship can be surprisingly difficult for immigration officials as well. The federal government does not have a database of citizens for officials to reference. Additionally, immigration lawyers note that some immigration officers who handle citizenship cases lack training or adequate knowledge of the law. Margaret Stock, an immigration attorney who teaches at West Point, says that confirming someone's citizenship can be so complicated that asking deportation officers and other immigration officials to make such determinations is like "appointing someone to be a tax judge who has never filed a tax return."

ICE is not required to track when it arrests, detains, or deports citizens. Regardless, Americans should never be detained and deported, says Congresswoman Zoe Lofgren (D-Calif.), who chaired last year's hearing before the House Judiciary Committee's immigration and citizenship subcommittee. "There's no jurisdiction for the government to arrest or detain, or let alone deport, citizens. That's otherwise known as kidnapping," she says. Lofgren is still awaiting a detailed response from ICE on why or how the detention or deportation of citizens happens, but she says she believes the issue is on the Obama administration's radar. (Homeland Security secretary Janet Napolitano has signaled that ICE will shift its focus toward targeting employers who hire workers who are in the country illegally.)

The number of detained or deported citizens is relatively small compared to the number of immigrants deported in the past few years, but some of the cases have been particularly egregious. In March 2006, Ricardo Martinez, a resident of Mercedes, Texas, visited his dying grandmother in Mexico. When he tried to come back into the US in Laredo, Texas, a Customs and Border Protection officer suspected his passport was fraudulent, detained him, and handcuffed him to a chair, according to Martinez's attorney, Lisa Brodyaga. The officer also threatened him with eight months in prison if he would not admit he was Mexican. Afraid of the threat, Martinez, who was born in Texas, but spent most of his youth in Mexico and doesn't speak or read English, signed a paper claiming Mexican citizenship. He was sent back to Mexico, where he stayed for nearly two years. Martinez filed a civil lawsuit in 2008 seeking damages and a federal district judge to reaffirm his citizenship. He is back in the United States, but his case is pending.

Rennison Vern Castillo spent more than seven months in a Seattle-area immigration lockup in 2005 and 2006 after serving an eight-month jail term for harassing an ex-girlfriend. Though Castillo insisted that he was a citizen, an immigration judge ordered his deportation. He was released after an appeals board noted his military service and it was discovered that his name had been misspelled on immigration records.

Matt Adams, legal director for the Northwest Immigrant Rights Project in Seattle, which is representing Castillo in a civil suit against ICE, says that last year his office found about a dozen people in immigration lockups whose citizenship claims proved to be valid. He suspects that there may be additional citizens who get deported because they don't have legal assistance, don't fight their cases, or don't realize that they actually are citizens. Immigration detainees have no right to an attorney, which Adams sees as a fundamental flaw that was compounded by the Bush administration's push to step up the rate of deportations. As a result, he says, ICE has locked up whomever it can get its hands on, infringing on the rights of citizens. "This is a classic example of where the government doesn't take seriously the almost sacred responsibility they have in not depriving people of their liberty," says Adams.

Andrew Becker is a staff reporter with the Berkeley, California-based Center for Investigative Reporting.

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