Deportation Research Clinic
Buffett Institute for Global Studies
Northwestern University
Deportation Research Clinic Source Materials
Founding Director, Professor Jacqueline Stevens




UNITED STATES CITIZENS IN DEPORTATION PROCEEDINGS
Immigration Court "Code 54" Adjournments, January 1, 2011 to June 9, 2017


In a 2013 letter to the New Yorker John Morton, then ICE Assistant Director, stated that the US citizens ICE had detained and deported were in the rearview mirror.  The problems documented in the New Yorker article covering the case of Mark Lyttle, as reported in a 2011 law review article, had been rectified  by "new safeguards to protect against the possibility of a citizens's detainment or removal," Morton claimed.  

Reading Morton's assertion in 2013 was alarming.  We were still receiving the same steady stream of reports of U.S. citizens detained and deported. So we filed a FOIA request on immigration court cases adjourned based on claims of U.S. citizenship. A couple of years later, Northwestern student Elizabeth Meehan analyzed the first release, reported here.

Last month we received data from January 1, 2011 -- after the changes Morton claimed had removed this as a possibility -- through June, 2017.  They show 268 people who were detained were released after asserting their U.S. citizenship claims in immigration court.

So the detention of U.S. citizens as aliens today is not just possible but remains a fact.  Moreover, when he wrote the letter, Morton knew this. (FOIA Case no 2015-ICFO-0500, 109 pages, showing cases of which Morton was aware when we wrote New Yorker letter, including this one.) This is part of a long history of ICE dissembling on this embarassing fact.

The links below are to analyses, cleaned up data, and original Excel spreadsheets with data responsive to requests of the Executive Office of Immigration Review for cases from January 1, 2011 to June 9, 2017 with an adjournment code 54, available to immigration judges to enter when respondents assert United States citizenship as a defense against removal.  (For more on this, please see Citizenship in Question: Evidentiary Birthright and Statelessness, ch. 12, Duke University Press, 2017, open access.)

We would appreciate credit to the Deportation Research Clinic, Northwestern University when quoting from our analysis of the data.

CAUTION: Cross checks using immigration court hearing dates, locations, and immigration judges for known cases of U.S. citizens in immigration courts in this time frame indicate that the vast majority are not included. (Two of 23 cases chosen at random are in the EOIR release for Code 54 adjournments.  Both of these were cases brought to the attention of EOIR by the blog http://stateswithoutnations.blogspot.com; an additional case is coded as a "removal" but the final outcome was a "termination.") On this basis, the Deportation Research Clinic will be appealing EOIR's recent release and assesses it is impossible to make any quantitative inferences from this data other than ICE is still detaining U.S. citizens.

Reasons for U.S. citizens appearing in immigration court and not appearing in this dataset are that adjudicators may not know a respondent has a claim of U.S. citizenship; may deport the person at the first hearing, which means there would be no adjournment code; or may code the adjournment using an adjournment code for "seeks more time for any attorney" or another valid reason that is not the claim of U.S. citizenship.  However, EOIR's own case management database for two U.S. citizenship cases in Clinic files shows adjournments based on "alien claims U.S. citizenship," and yet these cases also do not appear in the Excel output EOIR sent us.  (See below for three cross check examples.)

Other cases cross-checked are confidential and maintained by the Deportation Research Clinic.  Tables produced by Clinic Research Assistant Avery Miller.

Table I - Code 54 Cases 2011 - 2017 (June 9) Outcomes


Code 54 Cases by Outcome


Table II - Code 54 Adjournments, 2011 - 2017 (June 9)
Outcomes by Year - Detained, Never Detained, Released  

code 54 cases by year 


Table III - Code 54 Adjournments, 2011 - 2017 (June 9)
Detained, Days in Custody before Final Order

Detained by Days 




Table IV - Code 54 Adjournments, 2011 - 2017 (June 9)
Detained, Days in Custody before Final Order, With Attorney

Table 4, w Attorney

Table V - Code 54 Adjournments, 2011 - 2017 (June 9)
Detained, Days in Custody, Without Attorney
Table 5, Days in Custody, W Attorney



Outcome Key
Termination: Immigration Judge (IJ) orders release based on claim of U.S. citizenship.
Administrative Closure: IJ closes proceeding without issuing an order. Respondent is released. (Likely means IJ believes person is a U.S. citizen.)
Prosecutorial Discretion (PD): ICE closes case, respondent is released. (Likely means ICE assesses they wrongfully arrested and held a US citizen.)
Relief Granted: After finding unlawful presence, IJs may grant relief nonetheless based on factors such as residence or hardship on close relatives who are U.S. citizens. Cross checks using ICE internal e-mail on specific cases, recently obtained by the Clinic, indicate EOIR coding ICE orders overturned due to U.S. citizenship as "relief granted," although the legally correct outcome is a "termination."
Voluntary Departure: Respondent elects to return to designated home country, may pursue U.S. citizenship claim from abroad and typically is eligible for permission to return after five years. Respondent pays for travel.
Removal: Mandatory order of removal. Respondent typically eligible for permission to return after 20 years. Government pays for travel.
Stay in US: Any outcome (Terminated, Relief Granted, Administrative Closing) that results in the individual remaining in the US.
Deported: Removal Orders or Voluntary Departure.
Other: Any other outcome, includes change of venue, transfer, null



Databases Created and Used for Analysis

Deportation Research Clinic Data
Excel spreadsheet, combined data with duplicates removed, prepared by research assistant Avery Miller.

Data 2011-2014, original Excel release
January 1, 2011- September 30, 2014, EOIR FOIA Case no. 2014-23528
 
Data 2014-2017original Excel release
October 1, 2014 to June 9, 2017, EOIR FOIA Case no. 2017-29435

Cross-check Examples.  These are examples from our case files in which people made claims of U.S. citizenship in immigration courts and yet the dates, hearing locations, and outcomes for these cases do not appear in EOIR's data. For some, cases are not present.  In others, there are adjournments on the date and locations indicated in a case file, but the outcome is coded as "removal," even though the actual outcome is "terminated" or pending.  This means that either there happened to be two claims of US Citizenship before the same IJ on the same date and one resulted in a removal and is listed and another resulted in a "termination" and is missing, or EOIR's output are incorrectly indicating a "termination" as a "removal."
Cross check examples: 
1) Houston:  "During immigration proceedings on 09/22/2014 claimant made a claim of US citizenship based on his relationship to his citizen father..."

Houston2014 

2) Houston (Frank Serna), 2004, docket 2012-13.
3) York, PA, termination order, 2002-2015.  


N600 Data, 1999-2011 - Petitions for Certificates of U.S. Citizenship: affirmations, denials, pending, by Field Office

N-600 Adjudications by USCIS, analysis for 1999-2011, by US Citizenship and Immigration Services (USCIS) district office, year, and outcomes of applications for Certificates of Citizenship, submitted by foreign born individuals for proof that they were automatically U.S. citizens at birth by operation of law.  Immigration judges often, unlawfully, require people in ICE custody who are asserting U.S. citizenship to "apply" to USCIS for this Certificate, even though it is just an administrative rubber stamp of an underlying legal fact and not the creation of U.S. citizenship. The immigration court has jurisdiction to rule on the same evidence that would be submitted to USCIS for this Certificate. (An N-600 is different than an N-400, the application legal residents to naturalize--a Certificate based on an N-400 has one "A" in front of it and one based on the N-600 application has 2 "As" on the Certificate.)  

USCIS, part of the Department of Homeland Security, has deferred to ex parte requests from ICE attorneys, as the Clinic has documented occurred in Houston and in New York City for cases in which bona fide U.S. citizens were seeking relief from deportation. In other words, ICE attorneys appears in immigration court as a third party to USCIS denials that ICE attorneys behind the scenes are secretly assisting in creating.

Data from 1999-2011, original Excel release, USCIS FOIA 2013-COW2013000557.


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June, 2017 States Without Nations post on legal history of immigration courts and immigration judges, with link to June 27 oral argument in 11th circuit case on whether immigration judges are judicial, tied to adjudicator William Cassidy, who in 2008 ordered the deportation of Mark Lyttle to Mexico, despite the fact that he spoke no Spanish, had no relatives in Mexico, and had signed a sworn statement that he was born in Rowan County, North Carolina.

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