U.S. Citizens Mistakenly Snared, Deported by DHS and ICE

By Derek Gilna An increasing number of American citizens have been questioned, detained and even deported by the U.S. Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE), as a result of databases that incorrectly identify them as undocumented immigrants.

According to the New York Times, “Detentions of citizens are part of the widening impact on Americans, as well as on immigrants, of President Obama’s enforcement strategies, which have led to more than 1.1 million deportations since the beginning of his term, the highest numbers in six decades.” In fiscal year (FY) 2012, 409,849 immigrants were deported – a record number.

Image courtesy jayblessed.com

With growing criticism of law enforcement sweeps of immigrant neighborhoods and job sites that result in complaints about racial profiling, as well as widespread condemnation of immigration detention facilities, the issue of U.S. citizens being caught up in immigration raids has become more pronounced. Across the country, according to the Times, “citizens have been confined in local jails after federal immigration agents, acting on flawed information from Department of Homeland Security databases, instructed the police to hold them for investigation and possible deportation.”

The issue becomes even thornier when alleged fingerprint “matches” of people booked into local jails result in ICE is-suing 48-hour “detainers,” or holds, on people otherwise eligible to post bond. Although DHS and ICE are not currently required to track the number of citizens who are wrongly detained, a July 2011 study found that 82 citizens were held pending deportation at just two detention centers in Arizona from 2006 to 2008, and were incarcerated for periods as long as a year. Eventually, immigration judges determined they were citizens and ordered their release.

According to Jacqueline Stevens, a political science professor at Northwestern University in Evanston, Illinois and author of the study, “because of the scale of enforcement, the numbers of people who are interacting with Immigration and Customs Enforcement are just enormous right now... [and] 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.”

Prof. Stevens’ study, “U.S. Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens,” published in the Virginia Journal of Social Policy and the Law, described several cases where citizens were erroneously deported.

For example, Mario Guerrero, a California truck driver and American citizen, was incarcerated for seven years for immigration violations, deported and then charged with impersonation of a citizen when he returned to the United States before his citizenship was recognized.

“Some of these U.S. citizens found the Immigration and Customs Enforcement custody so physically and emotionally debilitating that they capitulated to ICE officers who pressured them to sign statements falsely conceding their lack of U.S. citizenship,” noted Prof. Stevens. “They preferred deportation to ICE confinement.”

According to data released by the Transactional Records Access Clearinghouse in February 2013, over a 50-month period that covered FY 2008 through the start of FY 2012, ICE issued detainers on 834 U.S. citizens and 28,000 legal permanent residents. It was unknown how many citizens and legal residents were mistakenly deported.

The problem will likely only increase due to the expansion of DHS’s Secure Communities program, which anticipates covering the entire country within two years and requires that the fingerprints of every person booked into local jails be checked against DHS immigration databases. [See: PLN, June 2011, p.42].

Unfortunately, simply being a U.S. citizen does not exclude a person from DHS databases, which include all immigration transactions and not just violations. Even an immigrant who has always been legally “in status,” or naturalized as a U.S. citizen, can show up in the database.

ICE director John Morton claimed, in response to criticism, that ICE gave “immediate and close attention” to anyone who alleged U.S. citizenship, adding, “we don’t have the power to detain citizens. We obviously take any allegation that someone is a citizen very seriously.” ICE has also faced criticism for its lack of an easily accessible point of contact for relatives and friends of immigration detainees to determine their whereabouts or case status.

Another factor that contributes to citizens being erroneously caught up in the immigration system is the fact that there is no central registry to determine citizenship. If a person is detained, and does not have access to their birth certificate or passport, it is possible they will languish in federal custody for a significant amount of time.

Further complicating the proper identification of citizens is the fact that many people who are foreign-born become U.S. citizens by operation of law, either by being born to or adopted by parents who are American citizens. Such situations are often not properly recorded in DHS or ICE databases. Nor are ICE officials held accountable by immigration judges.

“I’ve never seen an ICE agent who filed an arrest report appear in an immigration proceeding,” said Professor Stevens. “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.”

In October 2012, one American citizen who was mistakenly deported, Mark Lyttle, settled a lawsuit against the federal government for $175,000. Lyttle, who is mentally ill, was deported to Mexico where he lived on the streets despite evidence that he was a citizen born in North Carolina. Detainees facing deportation are not appointed legal counsel, which is particularly problematic for people with mental health problems who are unable to understand immigration proceedings.

“What happened to Mark Lyttle is outrageous and unconstitutional,” said Judy Rabinovitz, with the ACLU Immigrants’ Rights Project. “People with mental disabilities are entitled to due process in immigration court, and it is fundamentally unfair, as well as inhumane, to force them to endure such proceedings alone, without the assistance of a lawyer.” See: Lyttle v. United States, U.S.D.C. (M.D. Ga.), Case No. 4:11-cv-00152-CDL.

U.S. citizen Antonio Montejano was held on an immigration detainer after being arrested for shoplifting in California in November 2011. “I told every officer I was in front of that I’m an American citizen, and they didn’t believe me,” he said. Montejano was detained for four days before being released. He had been mistakenly deported to Mexico in 1996, and his records had not been corrected.

In January 2012, 15-year-old Jakadrien Turner returned to the U.S. following an 8-month stay in Columbia after she was deported. Turner had run away from home; despite being a minor who didn’t speak Spanish, and a U.S. citizen, ICE deported her to the South American country within six weeks after she was arrested for shoplifting in Houston. She had given a false name to immigration officials. “Somewhere the ball was dropped,” said Ray Jackson, the attorney representing Turner’s family.

Sources: New York Times, http://trac.syr.edu, www.lasvegassun.com, CNN

(First published by Prison Legal News and used here by permission)