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Monday, July 27, 2009

US Citizens Wrongly Detained, Deported by ICE

US Citizens Wrongly Detained, Deported by ICE

by Tyche Hendricks

The son of a decorated Vietnam veteran, Hector Veloz is a U.S. citizen, but in 2007 immigration officials mistook him for an illegal immigrant and locked him in an Arizona prison for 13 months.

[Hector Veloz, mistaken for an illegal immigrant, was detained more than a year by ICE. (Joshua Gates Weisberg / SFC) ]Hector Veloz, mistaken for an illegal immigrant, was detained more than a year by ICE. (Joshua Gates Weisberg / SFC)
Veloz had to prove his citizenship from behind bars. An aunt helped him track down his father's birth certificate and his own, his parents' marriage certificate, his father's school, military and Social Security records.

After nine months, a judge determined that he was a citizen, but immigration authorities appealed the decision. He was detained for five more months before he found legal help and a judge ordered his case dropped.

"It was a nightmare," said Veloz, 37, a Los Angeles air conditioning installer.

Veloz is one of hundreds of U.S. citizens who have landed in the custody of U.S. Immigration and Customs Enforcement and struggled to prove they don't belong there, according to advocacy groups and legal scholars, who have tracked such cases around the country. Some citizens have been deported.

By law, immigration authorities have jurisdiction only over noncitizens. Citizens, whether native-born or naturalized, cannot be deported.

As ICE increased its collaboration with state and local police and prisons under changes to immigration laws and policies in recent years, some detainees who have had a run-in with the law drop through a trapdoor from the criminal justice system into deportation proceedings.

In immigration detention it falls to the detainees to prove their citizenship. But detainees don't have the constitutional protections, such as the right to legal counsel, that would help them prove their case.

And many of those who wind up in immigration custody are frequently those who might have the most difficulty proving their citizenship. Many were born abroad and acquired citizenship through a U.S.-born parent, like Veloz, or a parent who became a naturalized citizen. Some have mental health problems. And frequently they are poor, as those who can afford a lawyer get out more quickly.

"These are people who are the most vulnerable," said Judy Rabinovitz, deputy director of the ACLU Immigrants Rights Project. "People are being locked up without bond hearings, often for long periods."

A growing chorus of legal experts says these detentions are unconstitutional.

"The constitution is the same that applies to U.S.-born citizens as to naturalized citizens," said Sin Yen Ling, an attorney at San Francisco's Asian Law Caucus. "Detaining these folks is creating a third category of people with a different set of rights."

Immigration and Customs Enforcement officials insist they would never knowingly detain or deport a U.S. citizen.

Asked about citizens winding up in immigration detention, Homeland Security Secretary Janet Napolitano, who oversees ICE, told The Chronicle: "We're always concerned about that. If there's an error made, we want to rectify it as soon as possible."

In April, after The Chronicle reported on a Modesto man in immigration detention, ICE released him and dropped its deportation case against him. Douglas Centeno was born in Nicaragua but derived citizenship when his father naturalized while he was a boy. He was jailed for four months.

A lack of rights

People charged in the criminal justice system have a range of constitutional rights, including the right to a speedy and public trial before an impartial jury and the right to legal counsel even if they can't afford to hire a lawyer. Criminal detainees have the right to a telephone call, to be brought before a judge, usually within 48 hours, and to be told of the charges against them.

Immigration matters, however, are civil, not criminal, so those protections do not apply. Still, the U.S. Constitution is designed to protect citizens from detention without due process. But citizens in immigration detention are not being afforded that due process, advocates say.

Immigration detainees are routinely shipped to remote jails where free legal aid is unavailable, their families are not notified of their whereabouts, and they are often denied access to telephones, mail and even medical care, according to a March report by Amnesty International and several federal audits.

"Throwing people into a system where they're sitting 3,000 miles away without a lawyer and trying to prove they're a citizen - they're making people make their arguments with two hands tied behind their back," said Nancy Morawetz, a professor at New York University School of Law and an expert on deportation law.

In January, Napolitano ordered a full review of ICE detention and removal operations. ICE spokeswoman Cori Bassett said she did not know when the review would be completed or whether its findings would be made public.

Immigration officials must balance civil liberties against security concerns, some observers say, and wrongful detentions are rare.

"ICE is not going to pursue anyone unless they can really justify the cause for it," said Janice Kephart, national security director at the Center for Immigration Studies in Washington, D.C.

Fighting the system

That's not what happened to Hector Veloz.

Before his birth, Veloz's U.S.-born father was sent to Vietnam, so his pregnant mother stayed with relatives in Mexico and Veloz was born there. Months later, the family returned to the United States and has lived here since.

Veloz was automatically a citizen at birth, though his parents never obtained his certificate of citizenship.

In 2006, Veloz was convicted of receiving stolen property after purchasing a car that had been stolen. He served eight months and was about to be released from prison when he was turned over to ICE.

"I said, 'I'm a U.S. citizen, why am I being put through deportation?' " he recalled.

At the ICE prison in Arizona, the paperwork stated that he had entered the country illegally and that his father was a Mexican citizen.

"It was all incorrect information," Veloz said.

Immigration lawyers say locking up Veloz and others like him violates the 1971 Non-Detention Act, which says the U.S. government cannot detain citizens without an act of Congress.

ICE's presumption that everyone in immigration custody is an alien undermines the act, said Holly Cooper, a professor of immigration law at UC Davis.

"The system is set up so even if they believe you, you have to prove it in court. It could take six months to five years to prove it and you're detained in the meantime," said Cooper, who helped Veloz win his freedom on appeal. "You give up your citizenship at the prison door."

Tough to prove

A person who is born abroad to U.S. parents, as Veloz was, is a citizen at birth. And a foreign-born child automatically derives citizenship when a parent naturalizes, though they may not realize it. Without documentation at hand, or an attorney's help, however, it can be tough to prove.

"I don't carry my birth certificate around with me and I bet you don't," NYU's Morawetz said. "ICE ought to know the law. Individuals might not, but the government is supposed to. They're the experts."

ICE's Bassett said that officials work hard to ensure that they deport only aliens. In rare instances, she said, the government might detain an actual U.S. citizen because that person claimed to be an alien.

"With somebody who misrepresents their true identity and makes a false statement to an ICE officer, it creates a problem for the government and for themselves," she said.

The number of people in detention has tripled over the past dozen years. Immigration authorities now detain more than 400,000 people a year. Analysts say that is leading to more citizens wrongly detained by ICE.

A study by the nonprofit Vera Institute, conducted for the U.S. Justice Department's Executive Office of Immigration Review, found more than 700 people at several detention facilities between 2006 and 2008 who said they planned to pursue claims of U.S. citizenship.

Jacqueline Stevens, a UC Santa Barbara professor of law and society, said she had identified 160 cases of people in Arizona and California whom she believed had credible claims to citizenship. And several immigrant legal aid groups have helped free dozens of other citizens in recent years.

In addition to U.S. citizens, there are other inmates in immigration detention who may not be deportable, legal analysts say. They include lawful permanent residents who have committed crimes that are not grave enough for deportation, and asylum seekers locked up until their cases are decided.

The fact that citizens are imprisoned in a system designed to deport them points to potential problems for these other detainees, said Chuck Roth, litigation director for the National Immigration Justice Center in Chicago.

"If it can happen to U.S. citizens, you can imagine how few procedural protections are available to everybody else."

Deportation sagas: Citizens tell their harrowing stories of detention and deportation by ICE. A9

Stories of detention, deportation by ICE

Mistake on form

When Brian Lyttle got word on April 22 from the U.S. Embassy in Guatemala that his brother Mark had been deported to Mexico and bumped around Central America for three months, he was floored.

The family had been searching for 31-year-old Mark and feared he was lost or dead.

Mark Lyttle was born in Rowan County, N.C., and had never left the United States. He speaks no Spanish and has no Mexican ancestry.

But Mark Lyttle suffers from mental illness. He has bipolar disorder, which requires medication, and is also mentally disabled.

He had been living in a group home when he got into trouble for inappropriately touching an employee, said Neil Rambana, an immigration lawyer helping the family. Lyttle pled guilty to a misdemeanor and served 85 days in jail. Instead of being released, he was turned over to U.S. Immigration and Customs Enforcement because a jail form listed his place of birth as Mexico.

ICE did not investigate his citizenship. He spent two months at an Atlanta detention center just miles from his mother, who didn't know where he was.

At one point Lyttle signed an ICE document saying he was a Mexican citizen, but two days later he signed another stating that he was born in the United States. He went before a judge in December 2008 as part of a group hearing and accepted "expedited removal," an uncontested deportation.

Brian Lyttle, who serves in the U.S. Army along with his other brother, Tommy, is furious.

"(We're) an all-American family with two soldiers and a family member who happens to be handicapped," he said. "It's like spitting on my uniform that you would do that to my brother."

Suspicious accent

Houston chef Leonard Robert Parrish, 52, wasn't locked up by ICE or deported, but he did run afoul of a law intended for illegal immigrants.

The Brooklyn-born Parrish went down to the Harris County Sheriff's Office in September to clear up a problem over a couple of bounced checks. He wound up in jail on immigration charges. He was strip-searched and spent 12 hours in custody.

"The deputy told me I had a foreign accent," Parrish recalled. "I told him I had an East Coast accent. He said, 'It sounds like a foreign accent to me.' "

A 2008 Texas law required a person's citizenship status be linked to his driver's license. A sheriff's deputy told Parrish he was detained because when they ran his driver's license information through their computer, it said that his citizenship status was "unknown."

"I served on a murder jury in Texas and they can't find out I'm a citizen?" asked Parrish. "I'm still fighting. ... Nobody wants to take responsibility for locking me up for no reason."

Sent to Honduras

According to her birth certificate, Diane Williams was born in Metairie, La., on Aug. 23, 1974.

So Williams was shocked on Jan. 18 when, hours after she was released from a Houston jail on prostitution charges, immigration agents showed up at her apartment and arrested her, saying she was a deportable alien.

"I had a copy of my birth certificate, but they said they didn't know if it was real or not," she said.

Williams, who has bipolar disorder, was denied medication during her three weeks in ICE detention, according to her Houston lawyer, Lawrence Rushton.

She at first refused to sign a deportation order waiving her right to court review, but did so after agents threatened that she would be jailed for years and deported anyway, Williams said.

On Feb. 9, she was deported to Honduras, where she spent nearly two months, Rushton said.

Eventually, the U.S. Embassy in Tegucigalpa issued Williams a temporary passport, after her mother sent documents proving her identity. On March 31, she flew back to New Orleans.

"I've had citizens who end up being detained," Rushton said, "but this is the first case where I've seen someone deported who's clearly and obviously a U.S. citizen."

Protecting rights

A bill introduced earlier this year by Rep. Lucille Roybal-Allard, D-Los Angeles, seeks to ensure fair and humane treatment of people in immigration detention.

It would codify the policies governing U.S. Immigration and Customs Enforcement detention standards and would encourage the agency to make wider use of alternatives to detention, such as releasing a person on bond or with an electronic ankle bracelet to track his movements.

The bill would also guarantee that detainees have access to telephones and medical care; require that detainees who do have legal counsel not be transferred to jails far from their lawyers; and that all detainees get legal orientation from an outside group.

In the Senate, New Jersey Democrat Robert Menendez plans to introduce a bill later this summer intended to protect citizens from winding up in ICE detention.

That bill would require that detainees are screened to identify people with citizenship claims and notify them of free nonprofit legal services; encourage the use of alternatives to detention for people who don't pose a flight risk or a danger to public safety or national security; and create an ICE ombudsman to investigate complaints.

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