U.S. GOVERNMENT UNLAWFULLY DETAINING AND
DEPORTING U.S. CITIZENS AS ALIENS
Jacqueline Stevens

∗

ABSTRACT
This Article presents original research on the rate at which Immigration
and Customs Enforcement (ICE) is detaining and deporting U.S.
citizens, even though ICE has no jurisdiction over U.S. citizens. The
article provides legal, historical, constitutional, and public policy
analyses of these actions, and presents several case studies. The
penultimate section evaluates, through a historical analysis of family
law, the jurisprudence of recent Ninth Circuit decisions on acquired U.S.
citizenship claims. The conclusion offers recommendations for changes
in policy and procedures to end the unlawful practice of deporting and
detaining U.S. citizens.
CONTENTS
Abstract................................................................................................ 606	
  
I. Introduction ...................................................................................... 607	
  
II. Data on ICE Detention and Deportation of U.S. Citizens .............. 618	
  
A. Florence Immigrant and Refugee Rights Project Data ............... 621	
  
B. Other Characteristics of FIRRP Detainees ................................. 623	
  
1. Criminal Background .............................................................. 623	
  
2. Family Ties Between Detainees and U.S. Citizens ................. 624	
  
C. National Data on U.S. Citizens Detained and Deported ............ 625	
  
D. U.S. Citizens Wrongfully Classified as Non-U.S. Citizens........ 628	
  
III. Evaluating the Acceptable Rate of ICE Misconduct ..................... 629	
  
A. The Legality of Depriving U.S. Citizens Due Process Rights
in Deportation Proceedings........................................................ 635	
  
1. Who Is a U.S. Citizen? ............................................................ 635	
  
B. The Constitutionality of Deporting U.S. Citizens as Aliens....... 638	
  

This article was written with the support of the Leslie Center for the
Humanities at Dartmouth College and would not have been possible without the
time and patience of dedicated immigration law practitioners, scholars of
immigration law enforcement, impact litigation attorneys, state and local law
enforcement employees, federal government staff, and, especially, the U.S.
citizens and their families who took the time to talk to me about their
experiences of detention and deportation. I am deeply grateful for the advice,
information, and legal analyses shared with me by Michelle Fei, Lee Gelernt,
Mario Guerrero-Cruz, Helen Harnett, Kara Hartzler, Philip Hwang, Daniel
Kanstroom, Mark Lyttle, Jeanne Lyttle, Calvin Morrill, Hiroshi Motomura,
Jennifer Mnookin, Nancy Morawetz, Brittney Nystrom, and Neil Rambana.
Special thanks to Dan Kowalksi and Rachel Rosenbloom for their ongoing
assistance in educating me on immigration law and to Juliet Stumpf for her
comments on an earlier draft. Thanks to Mark Kelley for assistance preparing
this manuscript for publication.
∗

Electronic copy available at: http://ssrn.com/abstract=1931703

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C.

Comparing Law Enforcement under Civil Statutes:
Immigration Enforcement and Tax Enforcement ...................... 646	
  
D. Is Deporting U.S. Citizens an Acceptable Consequence of
Enforcing Immigration Laws?................................................... 650	
  
IV. How Are U.S. Citizens Deported? ................................................ 654	
  
A. Discretion without Accountability for Arresting Officers.......... 655	
  
B. Border Patrol Unlawfully Preventing Entry of U.S. Citizens ..... 656	
  
1. Guillermo Olivares .................................................................. 657	
  
2. Raymond ................................................................................. 659	
  
C. State Criminal Alien Assistance Program................................... 659	
  
1. David ....................................................................................... 664	
  
2. Mark Daniel Lyttle .................................................................. 674	
  
D. U.S. Citizens Imprisoned for Immigration Crimes..................... 677	
  
1. Mario Guerrero........................................................................ 678	
  
V. U.S. Citizens Permanently Denied U.S. Citizenship ...................... 683	
  
VI. ICE, EOIR, and Federal Judges on Family Law ........................... 686	
  
A. Ninth Circuit Citizenship Decisions Based on Family Law ....... 691	
  
B. Ideology of Jus Sanguinis Performed Through Kinship Rules... 702	
  
1. Joseph Anderson...................................................................... 708	
  
VII. Recommendations........................................................................ 713	
  
Appendix ............................................................................................. 717	
  
A. Eloy Detention Center files ........................................................ 717	
  
B. Florence Service Processing Center and Local Jail Files ........... 718	
  
C. Comparison of FIRRP File Respondent Characteristics with
Total Detained Population ......................................................... 718	
  
There’s an old joke—um . . . two elderly women are at a
Catskill mountain resort, and one of ‘em says, “Boy, the
food at this place is really terrible.” The other one says,
“Yeah, I know; and such small portions.” Well, that’s
essentially how I feel about life—full of loneliness, and
misery, and suffering, and unhappiness, and it’s all over
much too quickly.1
I. INTRODUCTION
Woody Allen’s sentiments in Annie Hall about resort food in the
Catskills and life also apply to immigration and citizenship law: the
procedures, regulations, and statutes are poorly conceived, and they are
improperly enforced. Because agencies ignore the scant protections
immigration law provides respondents in deportation proceedings, the
government of the United States has been misclassifying its own citizens
as aliens and deporting them for over 100 years.2 The U.S. Constitution
1

ANNIE HALL (Charles Joffe & Jack Rollins 1977).
The following works provide one entrance into the extensive body of historical
research documenting the statutes and immigration enforcement policies in the

2

Electronic copy available at: http://ssrn.com/abstract=1931703

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and the civil rights laws in effect since the 1960s suggest that the
senseless and cruel practice of profiling U.S. citizens for deportation
because of their skin color, foreign birth, or Hispanic last names would
reside only in legal history textbooks, alongside descriptions of legallysegregated railroad cars3 and the poll tax.4 The truth is that the
banishment, and in some cases kidnapping,5 of U.S. citizens by
immigration law enforcement agencies is continuing with an alarming
albeit underreported frequency. Recent data suggests that in 2010 well
over 4,000 U.S. citizens were detained or deported as aliens, raising the
total since 2003 to more than 20,000,6 a figure that may strike some as so
high as to lack credibility. But the deportation laws and regulations in
place since the late 1980s have been mandating detention and
deportation for hundreds of thousands of incarcerated people each year7

United States. For a history of the colonial and new republic’s founding
thoughts and policies on citizenship, see DANIEL KANSTROOM, DEPORTATION
NATION: OUTSIDERS IN AMERICAN HISTORY (2010); JAMES H. KETTNER, THE
DEVELOPMENT OF AMERICAN CITIZENSHIP, 1608–1870 (1978); ROGERS M.
SMITH, CIVIC IDEALS: CONFLICTING VISIONS OF CITIZENSHIP IN U.S. HISTORY
(1997). For an overview of nineteenth- and twentieth-century statutes directed
toward immigrants and residents of Chinese ancestry, see ERIKA LEE, AT
AMERICA’S GATES: CHINESE IMMIGRATION DURING THE EXCLUSION ERA,
1882–1943 (2003); Leti Volpp, Divesting Citizenship: On Asian American
History and the Loss of Citizenship Through Marriage, 53 UCLA L. REV. 405
(2005). For policies on the immigration and especially the deportation of
residents of Mexican ancestry, see FRANCISCO BALDERRAMA & RAYMOND
RODRIGUÉZ, DECADE OF BETRAYAL: MEXICAN REPATRIATION IN THE 1930S
(2006). For an analysis of U.S. immigration policies focusing on the first third
of the twentieth century, see MAI NGAI, IMPOSSIBLE SUBJECTS: ILLEGAL ALIENS
AND THE MAKING OF MODERN AMERICA (2004).
3
See Brown v. Bd. of Educ., 347 U.S. 483 (1954).
4
See U.S. CONST. amend. XXIV, § 1; Harper v. Va. Bd. of Elections, 383 U.S.
663 (1966).
5
See Andrew Becker, Observe and Deport, MOTHER JONES, Apr. 23, 2009,
http://www.motherjones.com/politics/2009/04/observe-and-deport
(quoting
Rep. Zoe Lofgren (D-Cal.) as saying: “There’s no jurisdiction for the
government to arrest or detain, or let alone deport, citizens. That’s otherwise
known as kidnapping.”). See generally Problems with ICE Interrogation,
Detention, and Removal Procedures: Hearing Before the Subcomm. on
Immigration, Citizenship, Refugees, Border Security and International Law of
the H. Comm. on the Judiciary, 110th Cong. (2008) [hereinafter Rept.],
available at http://judiciary.house.gov/hearings/printers/110th/40742.PDF.
6
See infra Part II and Appendix.
7
Peter Schuck & John Williams, Removing Criminal Aliens: The Pitfalls and
Promises of Federalism, 22 HARV. J.L. & PUB. POL’Y 367 (1999) (discussing
the legislative history of mandatory deportation and detention policies).

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without attorneys or, in many cases, administrative hearings.8 It would
be truly shocking if this did not result in the deportation of U.S. citizens.
Part II characterizes the rate at which the U.S. government has been
unlawfully detaining and deporting its own citizens as aliens, as well as
accusing and even convicting them as felons under immigration laws.
Part III establishes criteria for evaluating whether the rate at which the
government is deporting U.S. citizens is legally acceptable. Section A
reviews Supreme Court opinions on the subject; section B compares the
Department of Homeland Security’s (DHS) law enforcement practices
with those of the Internal Revenue Service (IRS)—also a large federal
bureaucracy charged with administering and enforcing complex laws and
regulations; and section C looks to the literature on false criminal
convictions as well as the Supreme Court’s view on confessions
obtained while in custody prior to an arraignment. Part IV describes in
detail the policies and procedures leading to U.S. citizens being detained
and deported as aliens, including case studies of U.S. citizens who have
been deported since 2006. Part V explains why some U.S. citizens may
be rendered stateless permanently. Part VI reviews recent Ninth Circuit
appellate court decisions adjudicating derived and acquired claims to
U.S. citizenship. Finally, part VII offers recommendations designed to
prevent the detention and deportation of U.S. citizens going forward.
This last part draws on other precedents in administrative law to argue
that citizenship rights are too precious to leave to the contingencies of
the immigration court system and require assigned counsel and other
protections to prevent deprivation of these rights in violation of the Fifth
and Fourteenth Amendments.
This Article’s empirical research focuses on the unlawful
deportation of so-called aliens who at a later point were deemed U.S.
citizens by an Executive Office of Immigration Review (EOIR)
adjudicator,9 the federal government, or a federal judge.10 This avenue of
8

See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103322, § 20301(a), 108 Stat. 1823, 2023 (1994) (repealed 1996) (requiring partial
per diem compensation for nonreviewable reclassifications of inmates as
“illegal criminal aliens”); Illegal Immigration Reform and Immigrant
Responsibility Act, Pub. L. 104-208, § 302(a), 110 Stat. 3009, 3009-579-84
(1996) (amending Immigration and Nationality Act § 235, 8 U.S.C. § 1225)
(requiring expedited administrative removal without administrative appeal, and
depriving aliens of a hearing before a Department of Justice attorney); see also
Immigration and Nationality Act §§ 235, 236, 8 U.S.C. §§ 1225, 1226 (2006)
(eliminating administrative and judicial review for aliens deemed inadmissible
or putatively entered without inspection); Immigration and Nationality Act §
242, 8 U.S.C. § 1252 (2006) (“[N]o court shall have jurisdiction to review . . .
any judgment regarding the granting of relief under [Immigration and
Nationality Act] section[s] [212(h), 212(i), 240A, 240B, or 245] . . . .”).
9
See 8 C.F.R. § 1003.10 (2007) (“The immigration judges are attorneys whom
the Attorney General appoints as administrative judges . . . .”). The EOIR only

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selectively follows the American Bar Association’s Model Code of Judicial
Conduct. For instance, the Model Code states: “A judge should initiate and
participate in community outreach activities for the purpose of promoting public
understanding of and confidence in the administration of justice.” Federal and
other Article 3 judges regularly grant media interviews, especially to discuss
procedural matters, such as an overburdened Supreme Court or sentencing
guidelines. See, e.g., Jeffrey Toobin, After Stevens, NEW YORKER, Mar. 22,
2010, at 39. The EOIR, however, prohibits adjudicators from granting
interviews. E.g., Telephone Interview with Elaine Komis, Public Affairs
Officer, EOIR (Apr. 11, 2008). Likewise, courts in the judiciary are open to the
public, but immigration courts are often de facto if not de jure closed to the
public and hence the conduct of the adjudicators escapes public scrutiny. See
Jacqueline Stevens, Secret Courts Exploit Immigrants, NATION, June 29, 2009,
available at http://www.thenation.com/article/secret-courts-exploit-immigrants;
Jacqueline Stevens, Lawless Courts, NATION, Nov. 8, 2010, available at
http://www.thenation.com/article/155497/lawless-courts. The EOIR also
invokes the immigration judges’ status as administrators to shield them from
inquiries and oversight to which Article III judges are subject, including
pressuring the federal courts to omit naming the adjudicators whose decisions
the federal judges overturn. See Marcia Coyle, Bad Behavior by Judge Reverses
Asylum Ruling, NAT’L L.J., Jan. 26, 2010, available at http://www.law.com/jsp/
article.jsp?id=1202439486052 (“The Executive Office does make public
disciplinary actions taken against [private] attorneys, but not judges. The office
does not publish disciplinary actions taken against immigration judges ‘because
of Privacy Act protections,’ said a spokeswoman.”); List of Currently
Disciplined Practitioners, U.S. DEP’T OF JUSTICE (Dec. 9, 2010),
http://www.justice.gov/eoir/profcond/chart.htm (including practitioner names
and locales); E-mail from Elaine Komis, Public Affairs Officer, EOIR, to author
(Oct. 28, 2009) (on file with author) (“Discipline imposed upon federal
employees is protected information under the Privacy Act.”). An EOIR FOIA
officer agreed to release redacted reports but nine months later the reports still
have not been produced. Moreover, the statutory basis for protecting the privacy
of adjudicators and not practitioners is not evident. See 5 U.S.C. § 552(2) (2006)
(“Each agency, in accordance with published rules, shall make available for
public inspection and copying (A) final opinions, including concurring and
dissenting opinions, as well as orders, made in the adjudication of cases.”).
Thus, the government regularly releases non-redacted findings of misconduct by
federal employees. See INSPECTOR GENERAL, DEP’T OF JUSTICE, AN
INVESTIGATION OF ALLEGATIONS OF POLITICIZED HIRING BY MONICA
GOODLING AND OTHER STAFF IN THE OFFICE OF THE ATTORNEY GENERAL (July
28, 2008), available at http://www.justice.gov/oig/special/s0807/final.pdf. The
Privacy Act also might be read as deterring the release of confidential
disciplinary decisions for private practitioners: “To the extent required to
prevent a clearly unwarranted invasion of personal privacy, an agency may
delete identifying details when it makes available or publishes an opinion,
statement of policy, interpretation, or staff manual or instruction, staff manual,
instruction, or copies of records referred to in subparagraph (D).” See 5 U.S.C. §
552(2) (2006). The EOIR has invoked the fact that DHS attorneys and EOIR
adjudicators are both employees of the federal government to prohibit EOIR
adjudicators from filing misconduct complaints against DHS attorneys or

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holding them in contempt. Interview with Adjudicator (Sept. 2009) (notes on
file with author) (name withheld to avoid disciplinary actions). Due to the many
discrepancies between Article III judges and Article II immigration judges, this
Article refers to the latter as “adjudicators.” In November 2010, I reported in
The Nation on various unlawful actions in immigration courts and called for “a
new director for the EOIR, ideally someone who will run this law enforcement
agency according to the rule of law.” Jacqueline Stevens, Lawless Courts,
NATION, Nov. 8, 2010, available at http://www.thenation.com/article/155497/la
wless-courts. In December 2010, the Department of Justice announced the
replacement of acting director Thomas Snow by appointing Juan Osuna, then in
the Department of Justice, as the agency’s acting director. On May 17, 2011, he
was named the agency’s director. See Press Release, U.S. Dep’t of Justice,
Attorney General Holder Announces Appointment of Juan Osuna as Director
for the Executive Office for Immigration Review (May 17, 2011), available at
http://www.justice.gov/opa/pr/2011/May/11-ag-636.html; Press Release, U.S.
Dep’t of Justice, Attorney General Eric Holder Announces Acting Director for
Executive Office for Immigration Review (Dec. 23, 2010), available at http://w
ww.justice.gov/opa/pr/2010/December/10-ag-1477.html.
10
The deportation of U.S. citizens is distinct from expatriation. When a U.S.
citizen is detained, deported, or issued a deportation order but allowed to remain
in the country because the target country refuses to issue travel documents,
government agencies have made false statements that incorrectly change an
individual’s legal status. The rights to citizenship and full due process
protections remain intact, but the bearer of these rights is unrecognized as
holding them. The only means for the government to terminate citizenship is
through expatriation. See 8 U.S.C. § 1481 (2006); see also Rivera v. Ashcroft,
394 F.3d 1129, 1136–37 (9th Cir. 2004) (“The Constitution does not permit
American citizenship to be so easily shed. Under the Fourteenth Amendment,
all people born in the United States are citizens of the United States.”) (citing
United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)). The citizenship
defined by the Fourteenth Amendment is one “which a citizen keeps unless he
voluntarily relinquishes it.” Afroyim v. Rusk, 387 U.S. 253, 262 (1967). This
rule has its root in the fact that “[i]n our country the people are sovereign and
the Government cannot sever its relationship to the people by taking away their
citizenship.” Id. at 257. In Vance v. Terrazas, 444 U.S. 252, 260 (1980), the
Supreme Court explained that its holding in Afroyim precluding involuntary
relinquishment of citizenship meant that a person losing citizenship must intend
to do so, “whether the intent is expressed in words or is found as a fair inference
from proved conduct.” The Court held that it was therefore not sufficient for the
government to prove that, by making a formal declaration of allegiance to a
foreign state, the defendant Terrazas had voluntarily committed an act
designated by Congress as expatriating. Terrazas, 444 U.S. at 255, 261. For
Terrazas to lose his U.S. citizenship, the government had to prove that, in
swearing allegiance to Mexico, he “also intended to relinquish his citizenship.”
Id. at 261. When U.S. citizens sign documents asserting their alienage to escape
confinement or out of ignorance, this is not the same as expatriation, which,
when initiated by the citizen, requires intentionally relinquishing citizenship.

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inquiry is important for two reasons. First, the mistaken deprivation of
citizenship rights effects a legal death,11 the political equivalent of an
execution or wrongful death at the hands of the police. Every time a U.S.
citizen is treated at law as an alien, the government triggers a series of
events that include a range of extremely serious harms, from the loss of
political rights to brutal physical and emotional hardships lasting months
or years. Left in these circumstances, U.S. citizens who previously had
been housed and self-sufficient or cared for by their families have been
found bathing in the Tijuana River and eating garbage;12 drifting among
Latin American shelters and obtaining nourishment and liquid from
roadside soda cans in El Salvador;13 and, in a somewhat surreal reversal,
eking out livings as day laborers in Mexico or telemarketing in the
Dominican Republic.14 In other cases, a U.S. citizen may remain in the
United States illicitly or in legal limbo, awaiting deportation to a country
that will not issue travel papers.15 For the physically and mentally ill who
find themselves disproportionately in this condition, these cases result in
the loss of necessary medical and other social security benefits and may
even lead to a wrongful criminal conviction and imprisonment.16
11

See Batista v. Ashcroft, 270 F.3d 8, 14 (1st Cir. 2001) (“‘[T]he right in
question—American citizenship—is one of the most precious imaginable.’”)
(quoting Alexander v. INS, 74 F.3d 367, 370 (1st Cir. 1996)).
12
Jacqueline Stevens, Thin ICE, NATION, June 23, 2008, available at
http://www.thenation.com/article/thin-ice.
13
Interview with Mark Lyttle, deported U.S. citizen, in Kennesaw, Ga. (June
22, 2009).
14
Telephone Interview with Mario Guerrero-Cruz, deported U.S. citizen
wrongfully convicted of violating 8 U.S.C. § 1326 (May 26, 2009) (construction
work); Interview with “William,” deported U.S. citizen by birth, in a Boston
suburb (Dec. 17, 2010) (telemarketing). (Individuals from whom I did not
obtain permission for their names to appear in this article are referred to by
pseudonyms that appear first in quotation marks.) See also Lyttle Interview,
supra note 13 (Lyttle picked up occasional odd jobs from a work circle near the
Reynosa camp); infra Part IV.C.
15
Stevens, supra note 12. “Anna,” for example, had been declared legally
incompetent. She said she was born in France, and that JFK was her father and
the Pope was her father. Anna’s file also includes an application for a U.S.
passport in which she claimed birth in Tehran, Iran. An EOIR adjudicator issued
an order for her to be deported to France. France refused to issue travel papers
because she is not a French citizen. Id.
16
See, e.g., Telephone Interviews with “Alonzo,” deported U.S. citizen (May
and June 2009); trial record of Alonzo (1993–2007) (on file with author).
Alonzo had acquired U.S. citizenship by birth but was incorrectly classified on
admission to the United States as a legal permanent resident when he was four
years old. When he was fourteen years old, he was wrongfully deprived of this
status by Border Patrol agents in San Ysidro, who forced him to sign a
statement abandoning his right to legal residence. After Alonzo did not avail
himself of the opportunity to appeal this determination, he was deported.
Alonzo has mental disabilities and other health problems he had managed with

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In addition, the ease with which the Immigration and Customs
Enforcement agency (ICE)17 is deporting U.S. citizens underlines
endemic problems with the country’s immigration laws and their
enforcement. This has an impact not only on noncitizens, but also on the
U.S. citizens who are their spouses, children, parents, siblings, friends,
co-workers, and neighbors.18 The Supreme Court has granted broad
discretion to Congress and administrative agencies implementing
immigration policies,19 but affirmed due process rights for citizens held
as enemy combatants.20 At the same time, however, federal judges have
state assistance. However, after he returned to the United States, these were no
longer available to him due to his lack of legal status. He was not able to survive
without the social services he had received as a legal resident and pled guilty to
a burglary he did not commit so he could access a toilet twenty-four hours per
day. He said of living on the streets, “It was too humiliating to have diarrhea
and have to go into a McDonalds.” Alonzo realized he was a U.S. citizen
because a cellmate born in Germany had the same kinship status as Alonzo
(born abroad to U.S.-born father married to his mother), but the immigration
attorney Alonzo’s family hired proved incompetent. Two years into his
sentence, Alonzo’s defense attorneys had filed the relevant documents proving
his innocence, including evidence from a 911 recording, and arranged a hearing
for the judge to overturn the conviction. Alonzo’s courtroom outburst—for the
purpose of remaining in prison—dissuaded the judge, and Alonzo served the
entirety of a six-year sentence. In narrating these events, Alonzo repeatedly
attempted to exonerate the police, criminal prosecutor, and judge for his false
confession and prison time: “It’s all Immigration’s fault; they’re the ones who
did this.” After serving his sentence, Alonzo was deported again, arrested for
illegal reentry, and imprisoned awaiting trial. Acting without an immigration
attorney, he finally obtained a certificate of U.S. citizenship in 2007. This
account sounds illogical and strange, but the documents in Alonzo’s criminal
file on PACER confirm his narrative, one that reflects the constraints of U.S.
citizens with limited internal and external resources and profiled as noncitizens.
It is a testament to Alonzo’s fortitude that he persevered and obtained his
citizenship rights.
17
ICE is an agency under the DHS. It was created to take on the law
enforcement functions of its predecessor, the Immigration and Naturalization
Service, which was housed in the Department of Justice until March 1, 2003.
U.S. DEP’T OF HOMELAND SECURITY, HISTORY: WHO BECAME PART OF THE
DEPARTMENT?, http://www.dhs.gov/xabout/history/editorial_0133.shtm (last
modified April 11, 2008).
18
See infra Table 4.
19
See generally James M. Czapla, Removal of Judicial Review Under the Illegal
Immigration Reform and Immigrant Responsibility Act: The Different
Interpretations of 8 U.S.C. 1252(b)(3)(B), 38 SUFFOLK U. L. REV. 603 (2005).
20
Hamdi v. Rumsfeld, 542 U.S. 507, 508 (2004) (affirming that even assertions
of national security may not trump U.S. citizens’ due process rights: “[D]ue
process demands that a citizen held in the United States as an enemy combatant
be given a meaningful opportunity to contest the factual basis for that detention
before a neutral decisionmaker”). Those being held as enemy combatants have
more due process rights than U.S. citizens held by ICE. The absence of full due
process protections in deportation proceedings follows from their being

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episodically chastised these same agencies, including ICE and the
immigration courts, for systematically abusing this authority.21 That U.S.
citizens, for whom the Constitution always provides full due process
rights, are being unlawfully detained, deported, and imprisoned as a
result of the low due process protections provided de jure and de facto to
those in ICE custody indicates profound systemic flaws in this country’s
immigration laws and their enforcement.
The U.S. Constitution’s Fifth and Fourteenth Amendments require
the government to follow due process in encounters with U.S. citizens.
The Court, however, does not always apply this standard to noncitizens,
and it has withheld the due process protections for those subject to
immigration and citizenship laws that it applies to those in criminal

administrated under civil and not criminal law. See, e.g., Chae Chan Ping v.
United States, 130 U.S. 581 (1889); Daniel Kanstroom, Criminalizing the
Undocumented: Ironic Boundaries of the Post-September 11th “Pale of Law,”
29 N.C. J. INT’L L. & COM. REG. 639, 647; see also Daniel Kanstroom,
Deportation, Social Control, and Punishment: Some Thoughts About Why Hard
Laws Make Bad Cases, 113 HARV. L. REV. 1889 (2000) (contending that
deportation of criminal aliens is a punishment and should be adjudicated
according to rules from criminal, not civil, law). For other decisions limiting
due process rights for immigration proceedings due to their civil nature, see
Peter Markowitz, Straddling the Civil-Criminal Divide: A Bifurcated Approach
to Understanding the Nature of Immigration Removal Proceedings, 43 HARV.
C.R.-C.L. L. REV. 289, 290 n.9 (2008); Allison Wexler, The Murky Depths of
the Entry Fiction Doctrine: The Plight of Inadmissible Aliens Post-Zadvydas, 25
CARDOZO L. REV. 2029, 2037–38 nn.57–63, 2053–55 (2004). Wexler highlights
the ambiguity of Zadvydas, in particular how U.S. Courts of Appeals vary in
how they apply the precedent to non-resident aliens. For a review of key
decisions proscribing rights in immigration hearings, see Hiroshi Motomura,
Immigration Law after a Century of Plenary Power: Phantom Constitutional
Norms and Statutory Interpretation, 100 YALE L.J. 545 (1990). Markowitz
points out decisions that, even in light of the plenary prerogatives afforded
Congress, recognize due process rights for legal permanent residents in
particular, and argues for heightened due process protections for legal
permanent residents, as opposed to immigrants who were never admitted into
the country. The problem with this analysis resembles the problem with parsing
the rights of immigrants from citizens: the initial classification may be precisely
what is at issue, and hence this bifurcated approach may allow ICE and CBP
agents to treat as new entrants those who have been legal residents or U.S.
citizens.
21
Adam Liptak, Courts Criticize Judges’ Handling of Asylum Cases, N.Y.
TIMES, Dec. 26, 2005, http://www.nytimes.com/2005/12/26/national/26immigra
tion.html. In a widely quoted decision, Republican-appointed federal judge
Richard Posner wrote of EOIR adjudicators: “[T]he adjudication of cases at the
administrative level has fallen below the minimum standards of legal justice.”
Benslimane v. Gonzalez, 430 F.3d 828, 830 (7th Cir. 2005).

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proceedings,22 resulting in not only the detention and deportation of U.S.
citizens, but even their permanent banishment.23 This occurs because of
initially incorrect assignments of alienage to U.S. citizens in regulations,
in laws, and by law enforcement agents. For example, the regulation for
issuing an Expedited Removal Order, 8 C.F.R. § 235.3(b)(5), states:
When an alien whose status has not been verified but
who is claiming under oath or under penalty of perjury
to be a lawful permanent resident, refugee, asylee, or
U.S. citizen is ordered removed pursuant to section
235(b)(1) of the Act, the case will be referred to an
immigration judge for review of the expedited removal
22

There are three rationales for the disparity between due process standards for
immigration and citizenship proceedings and those for criminal proceedings.
One is that immigration proceedings are civil; since the government is not using
its authority for punishment, individuals require fewer protections, a position
that holds for other administrative proceedings as well. See INS v. LopezMendoza, 468 U.S. 1032, 1038, 1043 (1984) (5-4 decision holding that an
illegal search does not invalidate a deportation order because “protections that
apply in the context of a criminal trial do not apply in a deportation hearing”;
the majority premises its decision on an empirical claim that is now untrue,
namely that “only a very small percentage of arrests of aliens are intended or
expected to lead to criminal prosecutions”). In the last few years, immigration
crimes premised on administratively-ordered deportations comprise the plurality
of federal prosecutions, which are illegal reentry charges. See Transactional
Records Access Clearinghouse, FY 2009 Federal Prosecutions Sharply Higher
(Dec. 21, 2009), http://trac.syr.edu/tracreports/crim/223. For other precedents,
see Markowitz, supra note 20, at 290 n.9. A second rationale is that aliens at the
border do not have due process protections. See Zadvydas v. United States, 533
U.S. 678, 693 (2001) (“The distinction between an alien who has effected an
entry into the United States and one who has never entered runs throughout
immigration law.”); Kaplan v. Tod, 267 U.S. 228, 230 (1925) (despite nine
years’ presence in the United States, an ‘excluded’ alien ‘was still in theory of
law at the boundary line and had gained no foothold in the United
States . . . .’”). Third, the Supreme Court has invoked Congress’ plenary powers
over citizenship and immigration. See Mathews v. Diaz, 426 U.S. 67, 79–80
(1976) (holding that while aliens in the United States have due process rights,
Congress may limit the substance of these in ways they may not for U.S.
citizens: “In the exercise of its broad power over naturalization and
immigration, Congress regularly makes rules that would be unacceptable if
applied to citizens. The exclusion of aliens and the reservation of the power to
deport have no permissible counterpart in the Federal Government’s power to
regulate the conduct of its own citizenry. The fact that an Act of Congress treats
aliens differently from citizens does not in itself imply that such disparate
treatment is ‘invidious’”); see also Yick Wo v. Hopkins, 118 U.S. 356 (1886).
But see Plyler v. Doe, 457 U.S. 202 (1982) (holding that because children did
not choose their status as undocumented aliens, discrimination against them
based on place of origin violates the Fourteenth Amendment).
23
See infra Part V.

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order . . . . If the immigration judge determines that the
alien . . . is a U.S. citizen . . . the immigration judge will
terminate proceedings and vacate the expedited removal
order.24
The regulation assumes a fact yet to be determined, that individuals
claiming to be U.S. citizens are aliens, i.e., “an alien whose status has
not been verified.” The so-called alien may turn out to be a U.S. citizen,
and yet an alien who is a U.S. citizen is logically and legally impossible.
More accurate language would refer to an “individual.” The regulation
uses different and absurd wording to avoid the legal implications of
acknowledging that some of those detained pending administrative
hearings that may take months or years prior to a final determination
may be U.S. citizens, a situation ICE acknowledges is unlawful.25
In addition to the self-contradictory language of 8 C.F.R. §
235.3(b)(5), the statutes on false personation of U.S. citizens, 18 U.S.C.
§ 911,26 and regulation of inadmissible aliens, 8 U.S.C. § 1182,27 weaken
if not altogether nullify 8 C.F.R. § 235.3(b)(5). Law enforcement agents
confronting people asserting U.S. citizenship are authorized under 8
C.F.R. § 235.3(b)(5) to refer them to an immigration court,28 under 8
U.S.C. § 1182 to allow them to enter the United States, and under 18
U.S.C. § 911 to arrest them for the felony of falsely personating a U.S.
24

Authorized by 8 U.S.C. § 1228, expedited review orders mean that anyone
can be removed on the authority of an ICE agent, without a hearing before an
immigration judge. The grant of executive authority without judicial review is
premised on certain fact patterns recorded on a local, state, or federal arrest
record, including the one produced by DHS, e.g., criminal convictions or
immigration status, that may be mistaken or even falsified; the absence of
review means no legal venue is available for correcting ICE errors.
25
See Rept., supra note 5 (statement of ICE: “ICE bears the burden to prove that
an individual is an alien. See 8 C.F.R. §1240.8(c). If the government cannot
prove the individual is an alien, the individual may not be detained and removal
proceedings may not be initiated.”).
26
18 U.S.C. § 911 (2006) (“Whoever falsely and willfully represents himself to
be a citizen of the United States shall be fined under this title or imprisoned not
more than three years, or both.”).
27
8 U.S.C. § 1182(a)(6)(C)(ii)(II) (2006). § 1182(a)(6)(C)(ii) states that aliens
are inadmissible for “falsely claiming citizenship” but includes the following
exception: “In the case of an alien making a representation described in subclass
(1), if each natural parent of the alien (or, in the case of an adopted alien, each
adoptive parent of the alien) is or was a citizen (whether by birth or
naturalization), the alien permanently resided in the United States prior to
attaining the age of 16, and the alien reasonably believed at the time of making
such representation that he or she was a citizen, the alien shall not be considered
to be inadmissible under any provision of this subsection based on such
representation.” Id.
28
8 C.F.R. § 235.3(b)(5)(iv) (2004); see Rept., supra note 5.

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citizen.29 In 1961, Congress added language to the Aliens and
Nationality Act, stating that a deportation order not judicially determined
may be appealed by a criminal defendant, following arrest by local or
state law enforcement for an immigration law violation premised on a
previously recorded infraction, e.g., presence in the United States in
violation of a removal order.30 The 1996 Illegal Immigration Reform and
Immigrant Responsibility Act repealed this,31 although in the last few
years and episodically before that the Ninth Circuit has ruled that
eliminating the right of judicial review violates the Due Process
Clause.32 The overall effect of these laws and their implementation not
only deprives U.S. citizens of their due process rights, but also subjects
them to cruel and unusual punishments for which they committed no

29

See supra notes 26–28.
United States v. Mendoza-Lopez, 481 U.S. 828, 834 n.7 (1987) (indicating
that 8 U.S.C. § 1105a(a)(6) permitted individuals to appeal a non-judicial
deportation order under 8 U.S.C. § 1252(e) (local and state law enforcement of
immigration violations)). However, local and state law enforcement officials
may and do charge individuals for violating 8 U.S.C. § 1326 (2006). Deference
to Congressional authority in immigration matters notwithstanding, it would
seem to raise due process questions if individuals, especially U.S. citizens, may
have access to an adjudicative body for challenging an administrative order if
arrested for the same crime by one branch of government (non-DHS law
enforcement officers) and not another.
31
INA §§ 235 and 236, 8 U.S.C. §§ 1225, 1226 (2006), eliminate any
administrative or judicial review for aliens deemed inadmissible or who entered
without inspection, but of course the absence of any process for adjudicating
challenges to these orders means no oversight and hence misclassifications. INA
§ 242 states: “no court shall have jurisdiction to review any judgment regarding
the granting of relief under section [212(h), 212(i), 240A, 240B, or 245].” 8
U.S.C. § 1252(a)(2)(B) (2006).
32
United States v. Gonzalez-Valerio, 342 F.3d 1051, 1054 (9th Cir. 2003)
(stating that the immigration judge’s duty to inform an alien of his eligibility for
relief is mandatory, and the failure to do so constitutes a violation of the alien’s
due process rights); United States v. Francisco Chipres-Madriz, No. CR 0900676, slip op. (N.D. Cal. Jan. 28, 2010) (referencing Ninth Circuit opinions as
early as 2000 affirming the Constitutional prerogative to challenge, on due
process grounds, deportation orders triggering criminal arrests). Section V of
this Article discusses citizenship cases in which Ninth Circuit judges ruled
otherwise. See, e.g., Martinez-Rosas v. Gonzales, 424 F.3d 926, 928–29 (9th
Cir. 2005) (noting that generally, federal district courts lack the power to review
removal orders). Federal judges are generally reluctant to review deportation
orders, including when a case is pending review and the underlying claim is
U.S. citizenship. See Johnson v. Whitehead, No. 09-1981, slip op. (4th Cir. Oct.
9, 2009) (“Upon consideration of the submissions relative to the motion to hold
this case in abeyance pending the ruling by the Board of Immigration Appeals
on David Johnson’s appeal of an order of removal, the Court grants the
motion.”); Johnson v. Whitehead, No. PJM-08-187, slip op. (D. Md. May 14,
2009).
30

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underlying crime.33 The Supreme Court has recognized Congress’ broad
plenary powers to regulate immigration, but the Court has never
authorized Congress or the Executive Branch to deprive U.S. citizens of
their due process rights, effectively rendering them stateless. This Article
suggests that only by affording so-called aliens the rights of U.S. citizens
is it possible to ensure that U.S. citizens receive the full protections of
the Fifth and Fourteenth Amendments.34
II. DATA ON ICE DETENTION AND DEPORTATION OF U.S. CITIZENS
The federal government claims not to maintain records of U.S.
citizens ICE has detained or deported.35 Each time the media reports that
ICE detained or deported a U.S. citizen, an ICE public affairs
spokesperson refuses to comment on the particular case,36 ignores the

33

See Kanstroom, supra note 20 (discussing Congressional debate on whether
law authorizing a “punishment” of permanent banishment is too harsh); Briseno
v. INS, 192 F.3d 1320, 1323 (9th Cir. 1999) (“The BIA’s denial of discretionary
relief did not violate Briseno's rights under the Eighth Amendment because
deportation is not criminal punishment.”); see also Leo Zaibert, Uprootedness
as (Cruel and Unusual) Punishment, 11 NEW CRIM. L. R. 384, 402 (“The
Supreme Court of the United States has declared denationalization to be so cruel
as to be illegal, and there exists no principled, reasonable way to distinguish the
cruelty that denationalization brings to its citizens from the cruelty that
deportation brings to some noncitizens. The United States, however, continues
to remain indifferent to the cruel treatment that it inflicts on throngs of human
beings.”).
34
Sara Martin, Postcards from the Border: A Result-Oriented Analysis of
Immigration Reform Under the AEDPA and IIRIRA, 19 B.C. THIRD WORLD L.J.
683, 705 (1999) (noting that the Ninth Circuit has allowed for a habeas corpus
review of deportation orders in federal court when the appellee had raised
“substantial constitutional questions”) (citing American-Arab AntiDiscrimination Comm. v. Reno, 119 F.3d 1367 (9th Cir. 1997), vacated, 170
F.3d 1264 (1999)). But see Flores-Torres v. Mukasey, 548 F.3d 708, 712 (9th
Cir. 2008). In Flores-Torres, the district court, claiming it lacked jurisdiction,
had refused to hear a habeas petition challenging an immigration detention. The
Ninth Circuit ordered the district court to hear the petition on the grounds that
the petitioner, who had been detained by ICE for over four years, had a “nonfrivolous claim of citizenship.” On second remand, the district court found that
the petitioner was a U.S. citizen. See infra Part VI.
35
Telephone Interviews with Brandon Alvarez-Montgomery, Public Affairs
Officer, ICE (2008); Telephone Interviews with Virginia Kice, Public Affairs
Officer, ICE (2008); Telephone Interviews with Barbara Gonzalez, Public
Affairs Officer, ICE (2009).
36
See Robert Zullo, Despite Citizenship Claims, Woman Shipped to Honduras,
DAILY COMET (La.), June 14, 2009, http://www.dailycomet.com/article/200906
14/ARTICLES/906141011?Title=Despite-citizenship-claims-woman-shippedto-Honduras.

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Detaining and Deporting U.S. Citizens as Aliens

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evidence on hand and denies the incident occurred,37 or responds as
though the example at hand is a freakish fluke among ICE’s entire
caseload of millions.38 A 2008 survey of private immigration attorneys
produced evidence falsifying ICE’s position. Of the fifteen attorneys
from the Department of Justice’s list of pro bono attorneys in southern
California39 who were randomly selected and interviewed by telephone,
seven reported representing one to four U.S. citizens who had been
detained in the last three years.40 Furthermore, ICE memoranda issued
since 2008 suggest that U.S. citizens are especially likely to be
unlawfully held by ICE as a result of so-called 287(g) programs.41 These
37

Andrew Becker & Patrick McDonnell, U.S. Citizens Caught Up in
Immigration Sweeps, L.A. TIMES, Apr. 9, 2009 (quoting Richard Rocha, ICE
Spokesperson, who said “ICE does not detain U.S. citizens”); Gonzales, supra
note 35 (claiming “ICE never detains U.S. citizens”). Staff questions following
a Congressional hearing, which included testimony by U.S. citizens arrested and
detained by ICE, triggered a similar denial: “Question: Does detaining one of
our witnesses Mr. Mike Graves, and hundreds of his co-workers in the Swift
plant in Marshalltown, Iowa for eight hours constitute a ‘brief’ period?
Response: ICE is unaware of any instances where United States citizens or
lawful permanent residents were detained for eight hours during the worksite
enforcement operation at the Swift & Company plant in Marshalltown, Iowa.”
Rept., supra note 5, at 130–31. The Committee had heard extensive, first-hand
accounts on and by U.S. citizens detained by ICE, including from James
Brosnahan, Marie Justeen Mancha, Michael Graves, Kara Hartzler, and Rachel
Rosenbloom. Rept., supra note 5, at 30–78. In its follow-up written response to
a question asking how often ICE had detained U.S. citizens, ICE stated: “ICE
does not keep track of how many U.S. citizens have been detained.” Rept.,
supra note 5, at 139. If ICE does not track the number of U.S. citizens it detains,
then public affairs officers who deny this occurs are demonstrably generating
propaganda, rather than reporting on government data.
38
Stevens, supra note 12.
39
Free Legal Services Providers—California, U.S. DEP’T OF JUSTICE,
http://www.justice.gov/eoir/probono/freelglchtCA.htm (last visited Jan. 22,
2011).
40
Stevens, supra note 12.
41
See Memorandum from James Hayes, Jr., Director, ICE, to Field Officer
Directors on Superseding Guidance on Reporting and Investigating Claims to
United States Citizenship (Nov. 6, 2008) [hereinafter Hayes Memo II] (on file
with author) (“In the course of exercising authority under section 287g of the
Immigration and Nationality Act §1357D DRO officers may encounter
individuals who either assert claims to U.S. citizenship or may be unsure of
their citizenship. Prior to making a warrantless arrest of such an individual DRO
officers must ensure s/he has reason to believe the individual is in the United
States in violation of a law or regulation governing the exclusion, expulsion or
removal of aliens. Note 1: Some U.S. courts have equated the ‘reason to
believe’ standard found in 8 U.S.C. §1357(a)(2) with a ‘probable cause’
standard. See United States v. Cantu 519 F.2d 494 (7th Cir. 1975), cert. denied,
423 U.S. 1035 (1975); see also Babula v. INS, 665 F.3d 293 (3rd Cir. 1981); Au
Yi Lou v. INS, 445 F.2d 217 (D.C. Cir. 1971), cert. denied 404 U.S. 864

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memoranda, produced through requests filed under the Freedom of
Information Act (FOIA), describe procedures law enforcement agents
are supposed to follow when arresting people who assert U.S.
citizenship.42 They had been designated “Law Enforcement Sensitive,” a
classification used to prohibit their dissemination to the media and
attorneys.43
The government is not the only source of information on deported
and detained U.S. citizens. The data below come from case studies of
U.S. citizens who have been detained or deported, as well as a survey of
files compiled by the country’s largest legal orientation program
(LOP).44 The additional information on thirty-two cases of U.S. citizens
who were deported and the 160 U.S. citizens who were detained as
aliens comes from thousands of pages of private and public personal
legal documents, court papers, and judicial decisions, as well as
interviews with prison guards, jail guards, probation officers, ICE
agents, ICE public affairs officers, EOIR staff at immigration courts,
EOIR public affairs officials in Washington, D.C., immigration court
observers, privately contracted guards at immigration courts, private
immigration attorneys, immigration attorneys at federally contracted
(1971).”). See also Memorandum from John Morton, Assistant Sec’y, ICE, to
Field Office Directors, Special Agents in Charge, and Chief Counsels on
Superseding Guidance on Reporting and Investigating Claims to United States
Citizenship
(Nov.
19,
2009)
[hereinafter
Morton
Memo],
available at http://centerforinvestigativereporting.org/files/ICEcitizenmemo.pdf
; Memorandum from James Hayes, Jr., Acting Director, ICE, to Field Office
Directors on Superseding Guidance on Reporting and Investigation of Claims to
United States Citizenship (July 18, 2008) [hereinafter Hayes Memo I] (on file
with author). Materials obtained through FOIA Production No.
ICE.10.0808.000003 (Dec. 29, 2009).
42
I received three memoranda in response to two requests under the FOIA in
2009. See supra, note 41.
43
Hayes Memo I and Hayes Memo II are stamped “LAW ENFORCEMENT
SENSITIVE FOR OFFICIAL USE ONLY.” Hayes Memo II was distributed on
July 18, 2008 from “DRO Taskings” with an e-mail to ICE agent recipients, and
states that the Memo “is not to be released to the public or other personnel who
do not have a valid ‘need-to-know’ without prior approval of an authorized
DHS official. No portion of this report should be furnished to the media,
either in written or verbal form.” See supra, note 41.
44
See Vera Institute for Justice, Center on Immigration and Justice: Partners,
http://www.vera.org/centers/73/center-immigration-and-justice-partners
(last
visited Jan. 22, 2011). LOP practitioners generally do not appear in immigration
court on behalf of the respondents, but provide workshops in the detention
centers, brief consultations, and, in some cases, legal support, e.g., calling
family members and procuring legal documents. Interviews with LOP attorneys
in Atlanta, Boulder, Florence, and EOIR staff (2008–2010) (on file with
author); see also Exec. Office for Immigration Review, The EOIR Legal
Orientation and Pro Bono Program, U.S. DEP’T OF JUSTICE,
http://www.justice.gov/eoir/probono/probono.htm (last visited Jan. 22, 2011).

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LOPs, federal public defenders, attorneys at impact litigation clinics,
attorneys at nonprofit immigration clinics, State Department legal staff
in Washington, D.C., State Department consular services staff in
Honduras and Guatemala, Honduran immigration agents in San Pedro
Sula and Tegucigalpa, Honduras, employees at state vital statistics
offices, Mexican citizens in refugee camps in Reynosa, Mexico, who
were unlawfully held by ICE and illegally deported, U.S. citizens who
were detained or deported, and relatives of U.S. citizens who were
detained or deported.45 The penultimate section reviews several case
studies at length to demonstrate the bureaucratic routines through which
ICE and federal prosecutors have been systematically and unlawfully
prosecuting—and even persecuting—U.S. citizens.46
A. FLORENCE IMMIGRANT AND REFUGEE RIGHTS PROJECT DATA
Several large immigrant rights centers maintain case files recording
the legal status of individuals ICE detains pursuant to their deportation.
The largest is the Florence Immigrant and Refugee Rights Project
(FIRRP). FIRRP attorneys run an LOP for detention centers in southern
Arizona, an area that in 2006–2008 housed about ten percent of the
country’s detainees.47 Between March 23 and March 25, 2009, I tracked
data on successful U.S. citizenship claims from among over two
thousand of FIRRP’s detainee files. These files are for individuals held
by ICE at the Eloy Detention Center, the Florence Service Processing
Center, and nearby jails from which ICE leases space.48 The Appendix
provides information about the FIRRP files, how I tracked their data, and
the extent to which these findings are representative of U.S. citizens in
ICE custody nationwide.49

45

All non-public materials cited in this article are on file with author.
See infra, Part IV (describing unsuccessful ICE appeals of EOIR adjudicator
decisions terminating deportation proceedings on grounds of U.S. citizenship).
47
Rept., supra note 5, at 40 (testimony of Kara Hartzler, Att’y, Florence
Immigrant and Refugee Rights Project).
48
The Eloy Detention Center is owned by the Corrections Corporation of
America, and the Florence Processing Center is owned by the federal
government. The “service processing” center nomenclature derives from when
these facilities were established under the auspices of the ICE predecessor
agency, the Immigration and Naturalization Service. E-mail from Vincent
Picard, Public Affairs Officer, ICE, to author (Nov. 17, 2009) (on file with
author).
49
Special thanks to FIRRP’s staff and especially Legal Director Kara Hartzler.
Ms. Hartzler’s congressional testimony and her interviews have been invaluable
to my research. Ms. Hartzler has also provided extensive information on
additional cases of detainees who appeared to have valid claims to U.S.
citizenship but who were nonetheless deported. These cases do not appear in the
FIRRP tables in this Article but helped inform my understanding of how U.S.
citizens might be deported.
46

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The FIRRP tables below do not include the detainees who had
claims to U.S. citizenship the attorneys thought valid, but who were
nonetheless deported. Most of the individuals who were deported despite
asserting seemingly valid claims to U.S. citizenship signed false sworn
statements indicating they were aliens, and had no legal claim to remain
in the United States. In two cases, the respondents had copious
documentation of their U.S. citizenship, but EOIR adjudicators deemed
the evidence insufficient.50
The results in the tables below show that of the 6,775 detainees in
the Eloy Detention Center meeting with FIRRP attorneys between 2006
and 2008, and the 1,252 detainees meeting with FIRRP attorneys from
other facilities in the area in 2008, an EOIR adjudicator decided that
eighty-two (one percent) could not be deported because the detainees
were U.S. citizens.51 Among the sixty-five U.S. citizens by birth or by
automatic operation of law52 held at Eloy, twenty-eight had acquired
citizenship,53 thirty had derived citizenship,54 and four were citizens by
birth in the United States.
Table 1
U.S. Citizens as Percent of All FIRRP Detainee Files

50

Files by Detainee
Location and Year

Total Number of
FIRRP Detainee Files

Cases Terminated Due
to U.S. Citizenship

Eloy 2006–2008

6,775

65

Florence 2008
Combined

1,252
8,027

17
82 (1%)

See Raymond’s story, infra notes 223–26 and accompanying text. In a second
case, “Humphrey” received a certificate of citizenship after his parents
naturalized when he was four at a ceremony in the Phoenix federal building he
specifically recalled for an EOIR adjudicator. The immigration agents and the
judge failed to contact the U.S. Citizenship and Immigration Services
(“USCIS”), and Humphrey was deported once in 2003 and once in 2005. Case
documents are on file with author.
51
The EOIR collects and publishes data indicating respondents’ countries of
citizenship or nationality. However, the agency relies on the designations of the
Department of Homeland Security, and not their own adjudicators, so the
agency’s official number of U.S. citizens in immigration courts is zero and
hence inaccurate. Telephone Interview with Elaine Komis, Public Affairs
Officer, EOIR (April 2009).
52
In other words, the cases here exclude naturalized citizens, individuals who
typically enter the United States as legal residents and then achieve citizenship
after they apply for this status and are approved. For a discussion on the criteria
for derived and acquired U.S. citizenship, see infra Part III.A.
53
See infra Table 3.
54
Id.

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Table 2
Time of U.S. Citizens Held In Captivity as Aliens by U.S. Government
1 wk.

1 mo. <
3 mo.

3 mo. <
6 mo.

6 mo. <
1 yr.

1 yr. <

N/A

Total

Eloy

6

21

13

2

4

19

65

Florence

1

10

1

1

1

3

17

Table 3
Acquired, Derived, Born in United States (Eloy)
Acquired

28

Derived

30

Born in U.S.

4

Unknown

3

Total

65

B. OTHER CHARACTERISTICS OF FIRRP DETAINEES
1. Criminal Background
The sixty-five U.S. citizens detained at Eloy were there because of
the mandatory criminal alien deportation provision of the federal 1994
Crime Bill, later incorporated into the 1996 Illegal Immigration Reform
and Immigrant Responsibility Act (IIRIRA).55 The underlying criminal
offenses triggering the mandatory detention and deportation of
noncitizens were largely drug-related,56 the plurality marijuana-related.57

55

See 5 U.S.C. § 552(2). The initial paperwork generating an ICE interview
with an inmate tended to be produced by a custodial assistant or other staff
member at a jail or prison, some operating with an explicit Memorandum of
Understanding delegating the assignation of immigration status to correctional
institution staff. The staff typically send designations of foreign origin to the
nearest ICE subfield office responsible for the Criminal Alien Program. For
these cases, such information indicated that the inmate in state custody was a
citizen of Mexico, although a few other countries were also listed, including
Guatemala, Belize, and, in one case that gained national attention, Russia. See
Marisa Taylor, Immigration Officials Detaining, Deporting American Citizens,
MCCLATCHY PAPERS (Jan. 24, 2008), http://www.mcclatchydc.com/2008/01/24
/25392/immigration-officials-detaining.html.
56
Tabulation of underlying crimes on file with author.
57
Id.

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Of the eighty-two U.S. citizens in deportation proceedings, only four had
notations on their files indicating convictions for violent crimes.58
2. Family Ties Between Detainees and U.S. Citizens
In reviewing the 1,252 Florence files from 2008, I tracked the
respondents’ family ties to U.S. citizens. The prevalence of family ties
between U.S. citizens and those who are in detention centers and then
sent to Mexico reveals the extent to which the State Criminal Alien
Assistance Program (SCAAP), incentivizing jails and prisons to report
foreign inmates to ICE,59 is causing substantial suffering for U.S.
citizens. Such citizens are permanently deprived of the companionship
and economic support of family members, a phenomenon I have
documented through other case studies.60

58

Id. These included one case each of attempted murder, manslaughter, assault
in jail, and aggravated assault. The information in some of the files was
incomplete. There may have been more cases of violent crimes, but I do not
believe they would change the overall picture of the U.S. citizen detainee
population as one profiled for deportation based on skin color, ethnicity, last
name, and foreign birth, and not the seriousness of their crimes.
59
See infra Part IV.C.
60
Interviews conducted in 2009 with the U.S. citizen relatives of longtime U.S.
residents who have been deported and are living in refugee camps along the
Mexican border reveal tremendous grief and hardship resulting from the
residents’ banishment from their homes and families. Although all of the U.S.
citizens whose files I read were in detention because of encounters with law
enforcement, most of the non-U.S. citizens had no criminal record and were in
detention centers because they had entered or remained in the country without
documentation and could not pay the $10,000 bond to remain free while
awaiting their hearing in an immigration court. ICE data confirm this. The
Criminal Alien Program accounted for 48% of ICE arrests in 2009, but 57% of
those arrested were not criminals. See DORA SCHRIRO, DEP’T OF HOMELAND
SECURITY, IMMIGRATION DETENTION OVERVIEW AND RECOMMENDATIONS 12–
13 (2009), http://documents.nytimes.com/immigration-detention-overview-andrecommendations.

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Table 4
Detainees with U.S. Citizen Relative(s)61
Children

Parent(s)

Sibling(s)

Spouse

2 or
more

C (n = 78)

20

9

9

6

11

E (n = 20)

6

0

3

1

7

F (n = 35)

12

4

4

7

11

H–K (n = 64)

34

11

13

8

30

M (n = 101)

37

7

12

20

32

Total (n = 298)

109

31

41

42

91

The information in Table 4 is to document the impact of immigration
law enforcement on U.S. citizens, not to suggest that these detainees are
themselves U.S. citizens.62 When these individuals are deported, U.S.
citizens are either permanently deprived of their spouses, parents,
children, and siblings, or they must move to a foreign country.63
C. NATIONAL DATA ON U.S. CITIZENS DETAINED AND DEPORTED
In addition to the eighty-two detainees whose U.S. citizenship was
verified by an EOIR adjudicator in the Eloy and Florence immigration
courts, I have recorded on an ad hoc basis more than eighty additional
cases of individuals who were detained or deported since 2003 and who
were determined to be U.S. citizens by an EOIR adjudicator, the federal
government, a federal appellate judge, or a jury. I have also documented

61

The letters in the left column are the first letters of respondents’ last names,
the basis of my random selection of cases for this more detailed analysis from
the Florence files. For further discussion, see Appendix.
62
An individual might have a close relative who is a U.S. citizen but has a
different status for several reasons. These include amassing previous
immigration or criminal violations, thereby precluding application for legal
residency; a parent’s naturalization when siblings were older and younger than
eighteen; and applications for naturalization pending with USCIS.
63
The shelters in Reynosa, Mexico include U.S.-born citizens who have
followed deported loved ones. For example, Erica, age nineteen, was born in
Edinburgh, Texas, but lives in Mexico with her fiancée, who was picked up by
ICE while they were sharing a picnic dinner in a McAllen, Texas park. Erica
described frequent ICE sweeps through their neighborhood and no discernible
difference after Obama assumed the Presidency. Erica’s mother is also a U.S.born citizen and lives in Ciudad Rio Bravo just east of Reynosa with Erica’s
step-father, who also was deported. Interview with Erica, in Reynosa, Mexico
(June 24, 2009).

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data on individuals who have seemingly valid claims to U.S. citizenship
but remain in detention or have been deported.64
Table 5
Selected Non-FIRRP Cases Reviewed: Individuals Convicted of
Immigration Crimes, Deported, or Detained as Aliens Determined to be
U.S. Citizens by an EOIR adjudicator, Federal Agency, Federal Judge,
or Jury
U.S. Citizens Convicted of 8 U.S.C. § 132665 or 18 U.S.C. § 911 19
Violation Since 2003
U.S. Citizens Deported/Returned Since 2003

32

U.S. Citizens in ICE Detention Since 2003 (Non-FIRRP)

73

64

These cases were encountered through interviews with criminal and
immigration attorneys, media reports, and the Lexis-Nexis database of Ninth
Circuit appellate decisions reversing or remanding on grounds of U.S.
citizenship from 2003 to 2008 convictions under 8 U.S.C. § 1326 and 18 U.S.C.
§ 911. Both of these crimes are predicated on alienage.
65
Reentry of Removed Aliens, 8 U.S.C. § 1326 (2006) (criminally punishing
“any alien who . . . has been denied admission, excluded, deported, or removed
or has departed the United States while an order of exclusion, deportation, or
removal is outstanding, and thereafter . . . enters, attempts to enter, or is at any
time found in, the United States . . .”). Those convicted are subject to prison
sentences of up to two years in general, up to ten years if they were removed
after being convicted of one felony or three of more misdemeanors involving
drugs, and up to twenty years if they were removed after being convicted of an
aggravated felony. Id. § 1326(a), (b)(1), (b)(2).

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Table 6
Reasons Deported U.S. Citizens Sign Removal Orders
Leave Detention w/o Hearing (Escape Confinement)66

21

Leave Detention After Hearing and Adjudicator Orders
Removal (Appeal Waived)

10

ICE or CBP Bullying to Sign Removal Order (Forceful
Intimidation)

8

ICE or CBP Threat of Criminal Arrest or Indefinite Detention

6

Initially Unaware of U.S. Citizenship

5

Unknown
Mental Illness Induces Assertions of Foreign Birth

3
67

2

Total Individuals*

32

Known Events

52

Total Events*
55
*The total number of events associated with deportation is higher than
the number of individuals because some U.S. citizens were deported
more than once.
Unlike the FIRRP data, Tables 5 and 6 do not reveal the rate at
which ICE is detaining and deporting U.S. citizens, or the number of
U.S. citizens wrongfully convicted of immigration crimes. These cases
and their respective legal documents, court records, interviews, and third
party accounts are reviewed because they offer detailed information on
the procedures resulting in the classification of U.S. citizens as aliens.
Table 6 shows that of the fifty-two known events leading to the
deportation of a U.S. citizen, eighty-six percent resulted from threats by
ICE or Customs and Border Protection (CBP) agents (n = 8), or coercion
from the threat of indefinite detention (n = 37).68 The balance resulted
from detainees who were unaware of their citizenship (n = 5) or had a
66

The experiences of people in this category could also be classified as
capitulation to ICE bullying. Many of these U.S. citizens were classified as
Entering Without Inspection and given administrative removal orders, both of
which specifically preclude an EOIR hearing. The citizens’ signatures on these
orders result from following ICE agent instructions and from ICE agents’ failure
to provide them an opportunity to sign a sworn statement indicating U.S.
citizenship, which would trigger either their release or at least a hearing. See
infra Part IV.
67
See discussion infra note 69.
68
Twenty-one U.S. citizens signed statements admitting they were not U.S.
citizens to leave custody without a hearing, and an additional ten signed these
statements after an EOIR adjudicator ordered removal and the respondent
agreed to waive appeal.

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mental illness that led them to initiate false claims of alienage (n = 2).69
That the actions resulting in the deportation of U.S. citizens are so
consistent means the deportations are not the result of random errors.70
Under current conditions, then, U.S. citizens will be deported at a
persistent (even if unknowable) rate.
The Fifth Amendment states, “No person . . . shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law . . . .”71 ICE has no
authority over U.S. citizens.72 Thus, the agency’s detention and even
banishment of U.S. citizens, depriving them of their liberty and property,
and possibly their lives,73 violate the Due Process Clause. Not only false
statements of alienage made under the duress of confinement and threats
by law enforcement agents, but also statements of alienage based on
errors by the federal government—e.g., initially classifying U.S. citizens
as legal permanent residents—derive from laws or actions inconsistent
with even the thinnest interpretation of procedural due process rights.74
D. U.S. CITIZENS WRONGFULLY CLASSIFIED AS NON-U.S. CITIZENS
Tables 5 and 6 indicate that people who are U.S. citizens are being
deported. However, individuals in ICE custody who are U.S. citizens but
69

There were additional cases in which cognitive or psychological disabilities
played a role in the deportations, but I did not count these as caused by mental
illnesses because the underlying trigger for the deportations were not selfinitiated false statements of alienage. The more common pattern in these
additional cases involved individuals who might show less resistance to the
coercion of ICE or CBP agents than people more mentally and psychologically
competent. The causal role of their mental and psychological capacities,
however, seems impossible to discern because about a third of the U.S. prison
population is psychologically ill and because the pattern of deporting those
without obvious signs of mental illness seems similar for most of the cases to
the pattern of deporting those with obvious signs.
70
If one person were deported because of illiteracy, another because the ICE
agent was tired, and another because rain made the form hard to read, then there
would be no discernible pattern. But when the same process appears across
cases, as is the case in Table 6, and such events portrayed are inherent to
immigration law, regulations, and their implementation, then it is necessary to
infer that as long as these laws and practices exist, they will cause the
deportation of U.S. citizens.
71
U.S. CONST. amend. V.
72
Rept., supra note 5, at 15 (Testimony of Gary Mead, Deputy Director of
Office of Detention and Removal Operations at ICE); Morton Memo, supra
note 41, at 1 (“As a matter of law, ICE cannot assert its civil immigration
enforcement authority to arrest and/or detain a USC.”).
73
Mr. Lyttle was admitted on November 16, 2008, to a local Columbus,
Georgia hospital during his incarceration at the Stewart Detention Center
because of a suicide attempt from a drug overdose.
74
See infra Part III.C.

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have not had their claims legally recognized at first inspection are
impossible to distinguish from noncitizens making false claims to U.S.
citizenship. Indeed, once a U.S. citizen has been classified as an alien, it
may be impossible to return to the United States to have the status
corrected and hence the individual will appear in ICE ledger sheets as a
deported alien, not a deported U.S. citizen. I estimate that in addition to
the 1% of detainees whose claims to U.S. citizenship are affirmed by
EOIR adjudicators, another .05% of those detained at the border or in an
ICE facility who sign removal orders and are physically removed are
U.S. citizens.75
III. EVALUATING THE ACCEPTABLE RATE OF ICE MISCONDUCT
During 2008 congressional hearings on the detainment and
deportation of U.S. citizens, Rep. Steve King (R-Iowa) said, “There is a
huge human haystack of humanity that crosses our border every night
that has piled up here in the United States . . . . To deal with all of that
without a single mistake would be asking too much of a mortal.”76 Is one
mistake tolerable? Two? Two thousand? Since 2003, ICE has locked up
over two million people.77 If the FIRRP data hold across detention
75

See infra Tables 5 and 6; see also CITY BAR JUSTICE CNTR., KNOW YOUR
RIGHTS PROJECT: AN INNOVATIVE PRO BONO RESPONSE TO THE LACK OF
COUNSEL FOR INDIGENT IMMIGRANT DETAINEES
9–11
(2009),
http://www.nycbar.org/citybarjusticecenter/pdf/NYC_KnowYourRightsNov09.
pdf (detailing evidence from 158 detainees interviewed in a survey by pro bono
immigration attorneys in the Varick Detention Center, and revealing that eight
percent had apparently meritorious claims to U.S. citizenship). The City Bar
Justice Center study is also significant because it shows that U.S. citizenship
claims make up thirty-nine percent of the total number of meritorious claims for
relief. Id. at 11. The estimate of U.S. citizens who are actually deported is based
on estimates by Kara Hartzler, who personally has observed U.S. citizens
abandoning their claims and stipulating to alienage for the purpose of being
released. Telephone Interview with Kara Hartzler, Att’y, Florence Immigrant
and Refugee Rights Project (Apr. 1, 2008). The calculation is also based on
interviews with U.S. citizens who have been and are presently in ICE custody
(all seriously consider making false statements in order to be released), and a
conservative assumption that the number of U.S. citizens agreeing to
deportation will be fewer than those who remain and prevail but also higher
than zero. For policy purposes, and for evaluating legal claims to U.S.
citizenship made by those who have sworn statements attesting to alienage and
who have been deported, the precise figure is less important than the fact that
U.S. citizens demonstrably sign statements relinquishing claims to U.S.
citizenship in accordance with standard ICE and Border Patrol operating
procedures. See infra Part IV.B.
76
See Rept., supra note 5, at 3 (statement of Rep. Steve King).
77
DHS statistics indicate a total of 2,093,329 individuals were confined under
ICE authority between 2003 and 2009. See DEP’T OF HOMELAND SECURITY
OFFICE OF IMMIGRATION STATISTICS, YEARBOOK OF IMMIGRATION
ENFORCEMENT ACTIONS 2003, 148 (2004), http://www.dhs.gov/xlibrary/assets/s

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centers and one percent of these occupants are U.S. citizens, then since
2003, ICE has incarcerated over 20,000 U.S. citizens, and deported
thousands more. Are this rate and the absolute number of individuals
affected politically and legally acceptable?
Later in the hearing, Rep. King asked this question of Kara Hartzler,
a FIRRP attorney: “I am curious about how you view this, [dealing] with
this huge haystack of humanity . . . . The level that has been charged
here for [ICE], this hundred percent, never fail, never-cross-the-line level
that Mr. Brosnahan has laid out . . . . Do you think that could ever be
reached practically? Or are we going to have exceptions no matter what
we do?”78 Hartzler replied, “I think that it is very, very difficult to ensure
that no citizen is ever deported. But I think the point of my testimony
would be that our current procedural safeguards are so lacking [that] the
numbers I personally am seeing border on routine deportation and
detention of US citizens.”79 Is there an acceptable rate for the
government to detain and deport U.S. citizens as an inextricable piece of
immigration law enforcement? If so, what is it?
No scholarly literature presently focuses on the legal ethics of false
positives in immigration cases, i.e., U.S. citizens falsely identified as
noncitizens. However, the literature on wrongful convictions, that is,
people convicted of crimes for which they are later legally exonerated,
provides a relevant analogy for evaluating wrongful deportations,
tatistics/yearbook/2003/2003ENF.pdf (231,500 locked up); MARY DOUGHERTY,
DENISE WILSON & AMY WU, OFFICE OF IMMIGRATION STATISTICS, 2004
IMMIGRATION
ENFORCEMENT
ACTIONS
ANN.
REP.
1
(2005),
http://www.dhs.gov/xlibrary/assets/statistics/publications/AnnualReportEnforce
ment2004.pdf (235,247 locked up); MARY DOUGHERTY, DENISE WILSON &
AMY WU, OFFICE OF IMMIGRATION STATISTICS,
2005 IMMIGRATION
ENFORCEMENT ACTIONS ANN. REP. 1 (2006), http://www.dhs.gov/xlibrary/asse
ts/statistics/yearbook/2005/Enforcement_AR_05.pdf (238,000 locked up);
DEP’T
OF
HOMELAND
SECURITY
OFFICE
OF
IMMIGRATION
STATISTICS, 2006 IMMIGRATION ENFORCEMENT ACTIONS 1 (2008), http://www.
dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_06.pdf (257,000
locked up); DEP’T OF HOMELAND SECURITY OFFICE OF IMMIGRATION
STATISTICS,
2007
IMMIGRATION
ENFORCEMENT
ACTIONS
1
(2008), http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_
ar_07.pdf (311,000 locked up); DEP’T OF HOMELAND SECURITY OFFICE OF
IMMIGRATION STATISTICS, 2008 IMMIGRATION ENFORCEMENT ACTIONS 4 (200
9), http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_0
8.pdf (378,582 locked up); DEP’T OF HOMELAND SECURITY OFFICE OF
INSPECTOR GENERAL, IMMIGRATION AND CUSTOMS ENFORCEMENT POLICIES
AND PROCEDURES RELATED TO DETAINEE TRANSFERS 1 (Nov. 2009),
http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_10-13_Nov09.pdf (442,000
locked up).
78
See Rept., supra note 5, at 87.
79
Id.

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especially those based on an individual’s sworn statement of alienage.80
First, false confessions play a significant role in wrongful convictions,81
even though due process rules prevent their use in criminal cases when
obtained under the conditions often used in deportation proceedings.82
Similarly, deportations of U.S. citizens are largely based on sworn
statements stipulating to non-U.S. citizenship by indigent individuals
who recently concluded a prison sentence and are incapable of obtaining
assistance from attorneys or even family members,83 statements that are
demonstrably false. Second, the incentives for U.S. citizens to provide
false confessions in deportation proceedings closely resemble those in
criminal contexts: a desire to escape confinement by largely destitute
young men who distrust the legal system and are recently released from
jails or prisons.84 Third, sworn statements made under conditions that
would constitute egregious due process violations in criminal
proceedings85 are admitted regularly into evidence in immigration
proceedings,86 and later relied upon in subsequent criminal proceedings
80

Thanks to Jennifer Mnookin for introducing me to this literature.
See, e.g., Steven Drizin & Richard Leo, The Problem of False Confessions in
the Post-DNA World, 82 N.C. L. REV. 891, 904 (2004) (citing study of 28
wrongful convictions which attributed 18% of the convictions to false
confessions); Saul Kassim, Confession Evidence: Commonsense Myths and
Misconceptions, 35 CRIM. JUST. & BEHAV., 1309, 1309 (2008) (“Contrary to the
widespread popular belief that normal people do not confess to crimes they did
not commit, the pages of American history, reaching back to the Salem witch
trials of 1692, betray large numbers of men and women who were wrongfully
prosecuted, convicted, imprisoned, and sometimes sentenced to death, on the
basis of false confessions.”).
82
See Corley v. United States, 129 S. Ct. 1558 (2009).
83
See supra Table 6.
84
See, e.g., NINIA SIULC ET AL., VERA INSTITUTE OF JUSTICE, IMPROVING
EFFICIENCY AND PROMOTING JUSTICE IN THE IMMIGRATION SYSTEM: LESSONS
FROM THE LEGAL ORIENTATION PROGRAM 1 (2008), http://www.vera.org/downl
oad?file=1780/LOP%2BEvaluation...final.pdf (noting that approximately 84%
of detainees between October 1, 2006 and September 30, 2007 with completed
immigration court proceedings lacked legal representation).
85
See infra Part III.D.
86
“[A] copy of all documents (including proposed exhibits or applications) filed
with or presented to the Immigration Judge shall be simultaneously served by
the presenting party on the opposing party or parties. . . . A certification
showing service on the opposing party or parties on a date certain shall
accompany any filing with the Immigration Judge unless service is made on the
record during the hearing. Any documents or applications not containing such
certification will not be considered by the Immigration Judge unless service is
made on the record during a hearing.” 8 C.F.R. § 1003.32(a). However, EOIR
adjudicators regularly hold hearings in which the detained pro se respondents’
files contain no certificate of service for the arrest reports (completed I-213
forms containing the information for allegations used in deportation orders), and
the adjudicator does not instruct the government to provide a copy during the
hearing. (In 2009 and 2010, I observed numerous hearings conducted by
81

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if U.S. citizens are prosecuted for illegal reentry or impersonation of a
U.S. citizen.87
The rate of wrongful convictions in criminal cases is estimated to
range between 1% and 2%.88 The rate experts find tolerable in criminal
proceedings is less than half of one percent,89 which is just a benchmark
that recognizes the importance of punishment for deterring unlawful
behavior. In other words, if we want to discourage lawbreaking and
believe punishing offenders has deterrence value, then the state may
need some very low level of demonstrably wrongful punishment to
accomplish this objective.90
The rate of wrongful convictions and the rate of ICE detaining U.S.
citizens prior to their possible deportation appear to be roughly identical
to the rate of wrongful convictions in criminal contexts. However, a 1%
to 1.5% rate of wrongful apprehensions of U.S. citizens has a legal and
political significance different from the rate of wrongful convictions in
criminal prosecutions. More specifically, incentives for false criminal
confessions and incentives for U.S. citizens agreeing to alienage are
similar, but the law and consequences are different. First, the Supreme
Court has endorsed a zero tolerance for banishing U.S. citizens as aliens,
as well as for imprisoning them for years as aliens.91 Second, criminal
defense attorneys and civil libertarians do not dispute that crime
deterrence, especially of violent crimes, is desirable and may therefore
have to accept a very low rate of wrongful, if mild, punishment as the
consequence of law enforcement. The purpose and effects of the
William Cassidy and J. Daniel Pelletier in which respondents did not receive
copies of evidence ICE attorneys submitted to EOIR adjudicators as the grounds
for deportation. I also saw this in additional respondent files obtained under the
FOIA.) See infra Part IV.A; see also e-mail from Daniel Kanstroom, Director of
Boston College Post-Deportation Human Rights Project, to author (Jan. 19,
2010) (on file with author) (“The sad fact is that this sort of thing happens all
the time with unrepresented people and even with represented ones if their
lawyer is not careful and a real fighter. . . . I’ve seen lots of problems with I213s: language problems, coercion, etc. and they are often full of mistakes in
my experience, but Judges rely on the info contained in them all the time,
especially with pro se respondents. This is another example of why competent
counsel is so crucial.”).
87
See infra notes 315, 326, 337 and accompanying text.
88
Robert Ramsey & James Frank, Wrongful Conviction: Perceptions of
Criminal Justice Professionals Regarding the Frequency of Wrongful
Conviction and the Extent of System Errors, 53 CRIME & DELINQ. 436 (2007).
89
Id.
90
Id. at 443 (“In sum, innocent people will be convicted even when system
actors properly do their jobs. All we can expect by improving the system of
justice, therefore, is a reduction in—and not an eradication of—wrongful
convictions.”).
91
See infra Part III.B.

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country’s immigration policy, on the other hand, do not invite such
consensus.92 Third, the enforcement standards to preclude wrongful
adverse judgments for an analogous civil agency, the IRS, are much
stricter than those in immigration enforcement, even though the stakes
are much lower. IRS proceedings may involve an adverse administrative
judgment that might require litigation or a financial penalty, but
immigration enforcement can result in the deprivation of one’s
citizenship rights. The consequences of the latter range from loss of
government benefits93 to statelessness94 to torture in a Honduran jail.95
Crucially, wrongful incarceration in violation of ICE procedures has
continued unabated during the Obama administration. From November
2009 to March 2010, an email address providing ICE headquarters with
reports of individuals in ICE custody asserting U.S. citizenship
generated 4,000 pages of messages.96 Exchanges occurring during two
weeks in March 2010 reveal that agents were not initiating e-mail
contact within twenty-four hours and holding people who appeared to
produce probative evidence of U.S. citizenship for weeks and possibly
longer.97 This violates the ICE memorandum informing agents, “As a
92

See Juliet Stumpf, The Crimmigration Crisis: Immigrants, Crime, and
Sovereign Power, 56 AM. U. L. REV. 367, 415 (2006) (evaluating the
consequences of excluding ex-offenders and noncitizens from political
membership: “These significant costs seem to outweigh the uncertain
benefits . . . . The costs become greater upon examining who is most often
excluded. Both immigration and criminal law tend to exclude certain people of
color and members of lower socioeconomic classes.”); see also JACQUELINE
STEVENS, STATES WITHOUT NATIONS: CITIZENSHIP FOR MORTALS (2009),
Introduction and Chapter 1 (2010) (undertaking cost and benefit analysis of
birthright membership rules); Sara Martin, Postcards from the Border: A ResultOriented Analysis of Immigration Reform Under the AEDPA and IIRIRA, 19
B.C. THIRD WORLD L.J. 683 (1999).
93
See infra Part VI.A.
94
Mark Lyttle, Johann Francis, and William were rendered stateless, a condition
Mr. Francis and William both endured for ten years.
95
See supra Part IV.C, pp. 57–59.
96
Telephone Interview, Richard Stevens, ICE FOIA analyst, Apr. 21, 2009,
referenced in cover letter for ICE FOIA Case Number 2010 FOIA 2918 (May
10, 2010).
97
One hundred pages of e-mail traffic to an ICE e-mail address that ICE agents
and attorneys are instructed to use when they encounter individuals who claim
to be U.S. citizens, in accordance with the Morton Memorandum. See supra
note 41, at 2. (The e-mails, which were obtained through a FOIA request, are on
file with author.) For example, an e-mail sent to the mailbox in March of 2010
describes an ICE detainee who was held for two weeks prior to his first court
appearance, despite his assertion of his father’s U.S. citizenship. The body of
the e-mail states, “Attached is a reporting memo for the above referenced case.
This alien is detained in Salt Lake City, although he expects to post his $10,000
bond.” E-mail from Donald C. O’Hare to “OPLA USC Claims” and “USC
CLAIMS DRO, copied to Steven M. Branch (Mar. 26, 1010, 11:08 a.m.) (on
file with author)). The attached memorandum, which is directed to the Director

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of Field Legal Operations for the Office of the Principal Legal Advisor,
provides the following synopsis: “[Redacted] came into ICE custody in Utah on
March 9, 2010. He was issued a Notice to Appear (“NTA”) after admitting to
immigration agents that he had illegally entered the United States and was born
in Mexico. Although he told agents that his father was a United States citizen,
he stated he was unclear about when his father had resided in the United States
and mentioned that his father had recently passed away in Mexico. [Redacted]
also stated that his mother had no legal status in the United States. On March
24, 1010, at [redacted] first detained master calendar hearing, his attorney
claimed that although [redacted] was born in Mexico, he had acquired
citizenship from his United States citizen father based on the presence of the
father in the United States. . . . The respondent’s attorney has indicated that his
parents were married at the time the respondent was born, but no such proof of
such marriage [in Mexico] has been provided to date. The respondent has
provided copies of documents showing that his father performed seasonal work
in the United States from 1968 to 1979. The respondent has also produced a
document which shows his father had reportable taxable income for roughly ten
years, between the years of 1980 to 2006. [Redacted] was encountered by
immigration agents in a Utah jail after being convicted of misdemeanor
aggravated battery due to his involvement in a bar fight where he hit another
individual with a beer bottle. . . .”
This case includes several features typical of those I encountered: (1) the
individual was in legal custody and thus could not obtain documents necessary
to prove his U.S. citizenship; (2) his claims to U.S. citizenship were not heeded
by the DHS until he appeared in immigration court and was represented by an
attorney; (3) the March 25, 2010 ICE memorandum omits reference to any legal
document to support its claim that the individual admitted to immigration agents
that he had illegally entered the country; and (4) there may be some uncertainty
on the part of the individual as to whether he is a US citizen, or he may have
informed ICE of his US citizenship and the agents ignored his claims to this
effect. Either scenario in (4) entails due process problems. ICE does not have
legal authority over U.S. citizens, regardless of whether they are aware of their
citizenship status. (This could be because of the government’s earlier
misclassification or agents’ racist assumptions about the citizenship status of
those who are of Mexican descent or brown skin.) At least one deportation
officer in Arizona had never heard of the Morton Memorandum over two
months after it was issued. See Jacqueline Stevens, ICE Agents Lose Track of
US Citizens in their Custody, and the Rules for Releasing Them, STATES
WITHOUT NATIONS BLOG (Feb. 8, 2010), http://stateswithoutnations.blogspot.co
m/2010/02/ice-agents-lose-track-of-us-citizens-in.html (“‘Can you send me a
copy of what you were reading [the Morton memorandum, see note 41] so I can
send it to litigation?’ I asked if [ICE Officer S.] had misplaced his own copy or
if he just had no idea what I was talking about. He said, ‘They come out with
these new things every day.’”) The only protection against this is an opportunity
for anyone in ICE custody to meet immediately with assigned counsel. If an
ICE deportation officer were in fact aware of a claim to US citizenship and
ignored it, then this violates the Morton Memorandum. See Morton Memo,
supra note 41, at 1.

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matter of law ICE cannot assert its civil immigration authority to arrest
and/or detain a USC.”98 The subsequent instruction to report claims of
U.S. citizenship to headquarters within twenty-four hours and then await
guidance within an additional twenty-four hours shows the impossibility
of ICE adhering to the law: even under the best of circumstances it has
authorized agents with no civil authority over U.S. citizens to detain
them for up to 48 hours, a breach of law heightened by the fact that the
agents are not reporting these cases in the allotted time frame99 and
evidence of the imperative for assigned counsel for all immigration
arrests.100
A. THE LEGALITY OF DEPRIVING U.S. CITIZENS DUE PROCESS RIGHTS IN
DEPORTATION PROCEEDINGS
1. Who Is a U.S. Citizen?
Citizenship by birth results when one is born in the United States101
or is foreign-born and meets particular statutory criteria.102 The
98

Morton Memo, supra note 41, at 1.
See Telephone Interview with Stevens, supra note 96.
100
See Infra Part VII.
101
U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the United States
and of the State wherein they reside.”).
102
For current rules, see Sungjee Lee, Part One: The Parent/Child
Relationship: Derivative Citizenship Through Parents, 16 J. CONTEMP. LEGAL
ISSUES 43, 43–47 (2007) (outlining current rules governing citizenship by birth
where individual is foreign-born). Lee relies for historical citations on Ann K.
Wooster, Annotation, Validity, Construction, and Application of 8 U.S.C. §
1401(c)-(g), Providing for American Citizenship in Certain Circumstances of
Child Born Outside United States, or Found Within United States and of
Unknown Parentage, and Predecessor Statutes, 175 A.L.R. FED. 67 (2002)
(compiling cases which have addressed 8 U.S.C. § 1401(c)-(g)). See also 8
U.S.C. § 1401 (c)-(g) (“The following shall be nationals and citizens of the
United States at birth . . . (c) a person born outside of the United States and its
outlying possessions of parents both of whom are citizens of the United States
and one of whom has had a residence in the United States or one of its outlying
possessions, prior to the birth of such person; (d) a person born outside of the
United States and its outlying possessions of parents one of whom is a citizen of
the United States who has been physically present in the United States or one of
its outlying possessions for a continuous period of one year prior to the birth of
such person, and the other of whom is a national, but not a citizen of the United
States; (e) a person born in an outlying possession of the United States of
parents one of whom is a citizen of the United States who has been physically
present in the United States or one of its outlying possessions for a continuous
period of one year at any time prior to the birth of such person; (f) a person of
unknown parentage found in the United States while under the age of five years,
until shown, prior to his attaining the age of twenty-one years, not to have been
born in the United States; (g) a person born outside the geographical limits of
99

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fundamental rules defining U.S. citizenship do not appear in the original
Constitution. Until the Fourteenth Amendment was ratified in 1868,103
no one had a constitutional right to citizenship. Instead, Congress set the
laws for those born in the U.S. and abroad. Citizenship is “acquired”
when an individual is born abroad to at least one parent who is a U.S.
citizen and meets other criteria.104 Citizenship is “derived” when an
individual is born abroad and at least one parent naturalizes before that
individual turns 18 and meets other criteria.105 Both of these laws have
the United States and its outlying possessions of parents one of whom is an
alien, and the other a citizen of the United States who, prior to the birth of such
person, was physically present in the United States or its outlying possessions
for a period or periods totaling not less than five years, at least two of which
were after attaining the age of fourteen years: Provided, That any periods of
honorable service in the Armed Forces of the United States, or periods of
employment with the United States Government or with an international
organization as that term is defined in [22 U.S.C. § 288] by such citizen parent,
or any periods during which such citizen parent is physically present abroad as
the dependent unmarried son or daughter and a member of the household of a
person (A) honorably serving with the Armed Forces of the United States, or
(B) employed by the United States Government or an international organization
as defined in [section 288 of title 22] may be included in order to satisfy the
physical-presence requirement of this paragraph. This proviso shall be
applicable to persons born on or after December 24, 1952, to the same extent as
if it had become effective in its present form on that date.”).
For those born before 1978, different rules apply. Their citizenship status is
determined by the Immigration and Nationality Act of 1952, 8 U.S.C. § 1401
(1952), which states that “(a) The following shall be nationals and citizens of
the United States at birth: (7) a person born outside the geographical limits of
the United States and its outlying possessions of parents one of whom is an
alien, and the other a citizen of the United States who, prior to the birth of such
person, was physically present in the United States or its outlying possessions
for a period or periods totaling not less than ten years, at least five of which
were after attaining the age of fourteen years: Provided, That any periods of
honorable service in the Armed Forces of the United States, or periods of
employment with the United States Government or with an international
organization as that term is defined in section 1 of the International
Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen
parent, or any periods during which such citizen parent is physically present
abroad as the dependent unmarried son or daughter and a member of the
household of a person (A) honorably serving with the Armed Forces of the
United States, or (B) employed by the United States Government or with an
international organization as that term is defined in section 1 of the International
Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288), may be included in
order to satisfy the physical-presence requirement of this paragraph. This
proviso shall be applicable to persons born on or after December 24, 1952, to
the same extent as if it had become effective on that date.”
103
U.S. CONST. amend. XIV, § 1.
104
8 U.S.C. § 1401 (2006).
105
8 U.S.C. § 1433 (2006). For the nomenclature of “derived” versus “acquired”
citizenship, see U.S. Citizenship and Immigration Services, I Am a U.S. Citizen:

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changed substantially since the nineteenth century. The laws in place on
the individual’s date of birth determine the applicable criteria for
citizenship.106
ICE’s procedures for arresting and locking up individuals claiming
U.S. citizenship have been superseded in three memoranda since 2008,
when the national media began to report on U.S. citizens in ICE custody.
Each memorandum requires increased vigilance to ensure that U.S.
citizens are not held in ICE custody.107 The November 19, 2009
memorandum instructs agents to assess whether there is “probative
evidence” of U.S. citizenship, stating, “[i]n all cases, any uncertainty
about whether the evidence is probative of U.S. citizenship should weigh
against detention.”108 The memorandum also indicates that individuals
with claims to U.S. citizenship currently in ICE custody should have
their cases reviewed and “if the investigation results in probative
evidence that the detained individual is a [U.S. citizen], the individual
should be released from detention.”109 But ICE agents either are not
aware of these procedures or ignore them and continue to hold people
who have probative evidence of U.S. citizenship.110 For those asserting
birth in the United States, the burden of proving otherwise falls on the
government in deportation proceedings, but for foreign-born respondents

How Do I . . . Get Proof of My U.S. Citizenship? (Aug. 2008),
http://www.uscis.gov/USCIS/Resources/A4en.pdf. Commentators and judges at
times use these terms interchangeably, but this Article relies on the usage
indicated above.
106
See Wolf v. Brownell, 253 F.2d 141, 141 (9th Cir. 1957) (“We hold that
Section 1401(a)(7) is not retroactive and that the district court properly held
appellant is not a citizen.”); Palomo v. Mitchell, 361 F. Supp. 455, 456 (S.D.
Tex. 1972) (“The conclusion is inescapable that section 301(a)(7) of the 1952
Act is not retroactive to persons born prior to its effective date.”). This is also
the position of the Board of Immigration Appeals. See Matter of Sepulveda, 14
I. & N. Dec. 616, 617 (B.I.A. 1974) (“The respondent claims that he acquired
United States citizenship at birth by virtue of the fact that his mother is a nativeborn United States citizen. The law in effect on the date of birth governs
acquisition of citizenship. At the time of the respondent's birth, acquisition of
United States citizenship by children born abroad was limited to children of
United States citizen fathers, Revised Statutes, § 1993.”).
107
See Hayes Memo I, Hayes Memo II, and Morton Memo, supra note 41.
108
Morton Memo, supra note 41, at 2.
109
Id. at 2.
110
See infra Part V. The previous November 6, 2008 procedure required ICE to
“establish probable cause to believe that an individual is an alien,” a much
lower bar for holding people. See Hayes Memo II, supra note 41 (citing Babula
v. INS, 665 F.2d 293 (3d Cir. 1981); United States v. Cantu, 519 F.2d 494 (7th
Cir. 1975); Au Yi Lau v. INS, 445 F.2d 217 (D.C. Cir. 1971)).

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asserting citizenship, the burden of proving citizenship falls on the
respondent.111
B. THE CONSTITUTIONALITY OF DEPORTING U.S. CITIZENS AS ALIENS
For over a century, the Supreme Court and federal appellate courts
have shown little deference to immigration agents and adjudicators
deporting U.S. citizens, and have urged application of strong norms of
due process.112 The decisions on the right of judicial review in this
context are especially relevant because even citizens born in the United
States are being deported through “administrative removal”113 and
111

8 C.F.R. § 1240.8(c) (2010); see also Immigration and Nationality Act §
240(c), 8 U.S.C. § 1229a(c) (2006) (in deportation proceedings, “the alien has
the burden of establishing . . . by clear and convincing evidence, that the alien is
lawfully present in the United States pursuant to a prior admission”).
112
See Ng Fung Ho v. White, 259 U.S. 276, 284 (1922) (“Jurisdiction in the
executive to order deportation exists only if the person arrested is an alien. The
claim of citizenship is thus a denial of an essential jurisdictional fact.”); Chin
Yow v. United States, 208 U.S. 8, 12 (1908) (holding that before being deported
an individual of Chinese ancestry must be allowed to present evidence of birth
in the U.S.: “As between the substantive right of citizens to enter and of persons
alleging themselves to be citizens to have a chance to prove their allegation on
the one side and the conclusiveness of the Commissioner’s fiat on the other,
when one or the other must give way, the latter must yield” and individuals
must be afforded an opportunity of judicial review); United States v. Jung Ah
Lung, 124 U.S. 621, 632–35 (1888) (holding that failure to present a certificate
of identification at a port of entry, due to the possible theft of the citizenship
document by pirates in China, did not justify automatic deportation without
judicial review); Colyer v. Skeffington, 265 F. 17, 37, 47 (1920) (“It should be
noted that the fifth paragraph of the first set is a distinct mandate to hold these
aliens incommunicado until otherwise ordered by the Department of Justice;
that the eighth paragraph contemplates the arrest of citizens and throws upon
them the burden of proof of their citizenship by documentary evidence.”).
Further evidence troubled the Colyer court: “It should not be overlooked that
many of these aliens were arrested in boarding houses or halls in which were
found large quantities of literature and pamphlets, the origin and ownership of
which were necessarily largely matters of guesswork. In cases of doubt, aliens,
already frightened by the terroristic methods of their arrest and detention, were,
in the absence of counsel, easily led into some kind of admission as to their
ownership or knowledge of communistic or so-called seditious literature. The
picture of a non-English-speaking Russian peasant arrested under circumstances
such as described above, held for days in jail, then for weeks in the city prison
at Deer Island, and then summoned for a so-called ‘trial’ before an inspector,
assisted by the Department of Justice agent under stringent instructions
emanating from the Department of Justice in Washington to make every
possible effort to obtain evidence of the alien’s membership in one of the
proscribed parties, is not a picture of a sober, dispassionate, ‘due process of law’
attempt to ascertain and report the true facts.” Id.
113
For example, Diane Williams, born in Louisiana, was served a Final
Administrative Removal Order and told to sign it: “‘They didn’t read nothing to

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“administrative and expedited removal” orders. In issuing these orders,
the DHS ignores statutory and constitutional law by not allowing the
individual claiming U.S. citizenship to appear in an immigration court.114
Also noteworthy are the Supreme Court’s opinions restricting
administrative findings that would “declare unlawful residence within
the country to be an infamous crime, punishable by deprivation of liberty
and property, [which] would be to pass out of the sphere of
constitutional legislation,” as well as the full protection of the Fourteenth
Amendment.115 These decisions are entirely ignored when district court
judges allow prosecutors to introduce determinations of unlawful
presence by agents of the executive branch as evidence of Illegal
Reentry under 8 U.S.C. § 1326 and Personation of a U.S. Citizen under
18 U.S.C. § 911.116
In 1920, the Supreme Court decided to intervene in Congress’ vast
plenary powers to control immigration policies since implementing those
policies might lead to the deportation of U.S. citizens. This established a
precedent of great relevance to current policies, which often ensnare
U.S. citizens in ICE custody by assigning them the low level of
constitutional protections more typically applied to noncitizens. The case
of Kwock Jan Fat is illustrative. When Kwock Jan Fat, who was born
and raised in Monterey, California, returned from a trip to China, an
immigration agent relied on secret and what turned out to be fabricated
witness testimony, which the agent may have manufactured himself,
stating that the man presenting himself as Kwock Jan Fat was someone
else. Following a lengthy review of the factual record, including the
testimony of “three white” witnesses affirming Kwock Jan Fat’s identity
and U.S. citizenship, the Court reversed district court and circuit court
opinions affirming the deportation order.117
In a unanimous opinion commenting on the possible deportation of
U.S. citizens, the Court affirmed the applicability of the Fifth and
Fourteenth Amendments to Kwock Jan Fat’s situation.118 The Court’s
me. They just told me to sign,’ she said, adding that she was threatened with
years of jail time to be followed by deportation. ‘I was scared.’” Zullo, supra
note 36.
114
Expedited Removal Orders for Mark Lyttle obtained from FOIA Production
No. NRC 2009025567-0006 (Aug. 2009): Administrative Removal Order,
Raleigh Office, North Carolina (Oct. 29, 2008) name omitted, signature unclear;
Expedited Removal Order, Hidalgo, Texas (Dec. 29, 2008) signed by Javier
Perales, Jr.; Expedited Removal Order, Hatfield Atlanta Airport, Georgia (Apr.
23, 2009) issued by Charles Johnston (on file with author).
115
Wong Wing v. United States, 163 U.S. 228, 237 (1896); see also Kanstroom,
Deportation, Social Control, and Punishment, supra note 20, at 1902–05.
116
See 18 U.S.C. § 911 (2006); 8 U.S.C. § 1326 (2006).
117
Kwock Jan Fat v. White, 253 U.S. 454, 464 (1920).
118
Id. at 457–58.

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conclusion deserves quotation at length because it relates to current
immigration law enforcement practices that may be authorized by
Congress, but are unlawful because of constitutional problems they pose
for U.S. citizens:
The acts of Congress give great power to the Secretary
of Labor over Chinese immigrants and persons of
Chinese descent. It is a power to be administered, not
arbitrarily and secretly, but fairly and openly, under the
restraints of the tradition and principles of free
government applicable where fundamental rights of men
are involved, regardless of their origin or race. It is the
province of the courts, in proceedings for review, within
the limits amply defined in the cases cited, to prevent
abuse of this extraordinary power, and this is possible
only when a full record is preserved of the essentials on
which the executive officers proceed to judgment. For
failure to preserve such a record for the information, not
less of the Commissioner of Immigration and of the
Secretary of Labor than of the courts, the judgment in
this case must be reversed. It is better that many Chinese
immigrants should be improperly admitted than that one
natural born citizen of the United States should be
permanently excluded from his country.119
This statement suggests that the Constitution protects natural born U.S.
citizens, regardless of ancestry,120 from deportation without due process
just as zealously as it protects their rights at a criminal trial or the right to
vote. Indeed, ensuring that U.S. citizens are afforded every due process
protection for their legal status must be the law of the land, or these other
rights are meaningless.
In 1924, Congress passed a law, still in effect, imposing on
immigrants in deportation proceedings the burden of proving their lawful
entry and presence in the United States.121 From the mid-1920s to the
early 1930s, immigration agents and local police and sheriffs, in
operations strikingly similar to those today, deported over a million U.S.
residents of Mexican ancestry, about 400,000 of whom were legal
residents or U.S. citizens.122 The families banished from their homes and
land were largely from California, Colorado, Arizona, and

119

Id. at 464 (emphasis added).
The opinions cited also referred to U.S. citizens of Chinese ancestry with
acquired citizenship.
121
Immigration Act of 1924, ch. 190, § 23, 43 Stat. 165 (1924).
122
Balderrama & Rodriguez, DECADE OF BETRAYAL, supra note 3, at 121–22,
216–17.
120

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Texas.123 Some displaced people were from families whose ancestors
had resided in the region since they were under the rule of Mexico and
even Spain.124 Not unlike today, other families that were not
apprehended felt unwelcome, and this, coupled with the Depression,
prompted their departure to Mexico.125
Nonetheless, these families maintained strong social and economic
ties to their homeland, that is, the United States. Their U.S.-born children
would later return to their country of origin.126 Some would settle and
have families in the United States, but others established ties in Mexico,
and began their families there. Among the U.S. citizens cut off from
their families and languishing in detention centers, I have documented
several who were born to the children of the children of the families who
left the United States in the 1920s and 1930s, including George Ibarra,
an honorably discharged Marine who was deported once in 1999 and
once in 2004.127 The effect is essentially ethnic cleansing, as the
unlawful removal of one generation of U.S.-born Mexican-Americans
imperils the U.S. citizenship of their offspring. The U.S. policy of
deporting Mexican residents from the United States in the last century,
including U.S. citizens of Mexican ancestry, has very clear parallels to
the Nazi administrative expulsion and exclusion policies from 1933
through 1937.128 It is not surprising that individuals whose parents were
deported as children now face barriers to legal recognition of their U.S.
citizenship.
Of course the legal environment in the United States during the
1930s, in part because of the tainting of racist eugenics as German and
un-American, differed significantly from that of Nazi Germany.
123

Id. at 121–22.
JOSEPH NEVINS, OPERATION GATEKEEPER: THE RISE OF THE ‘ILLEGAL
ALIEN’ AND THE REMAKING OF THE U.S.-MEXICAN BORDER 16–17 (2002).
125
Id. at 99–100.
126
Id. at 209–13.
127
Ancestry records and narratives for David, René Saldivar, William, Alonzo,
and George Ibarra; see, e.g., In re Jorge Ibarra-Lopez, slip op. (Immigr. Ct. Feb.
23, 2011).
128
The laws passed during this period in the United States relied on theories of
eugenics for determining admittance policies for immigration as well as
citizenship criteria. DEBRA L. DELAET, U.S. IMMIGRATION POLICY IN AN AGE
OF RIGHTS 29 (2000). Like U.S. immigration and citizenship laws, the 1933
Nuremberg laws were designed to use birth and marriage certificates to strip
Jews residing in the German homeland of their citizenship and then banish them
as aliens. These laws also gave enormous discretion to SS agents implementing
these policies, designed to deport previously German-Jews as non-German
aliens. Hitler and Goebbels preferred for Jews to be “dealt with in a ‘legal’
fashion, that is to say, in an orderly way that would allow for proper and
thorough planning.” RAUL HILBERG, THE DESTRUCTION OF THE EUROPEAN
JEWS 46 (3d ed. 2003).
124

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Emboldened by the Supreme Court’s categorical statements about the
unconstitutionality of deporting U.S. citizens, legal professional
organizations in the 1920s and 1930s voiced their opposition,129
including Assistant Secretary of Labor Louis Post.130 In 1931, a
commission led by George Wickersham documented widespread
misconduct by local and federal agents implementing immigration laws.
The 179-page report, written under the authority of the National
Commission on Law Observance and Enforcement by Reuben
Oppenheimer and published by the Government Printing Office,
provides a thorough review of constitutional law governing the treatment
of respondents to deportation orders, as well as extensive field research.
Nine of the Commission’s eleven members, some of the most
respected Washington insiders of the day,131 endorsed Oppenheimer’s
findings.132 The report’s introduction points out that the “last 50 years
has been characterized by a tendency to use administrative processes
rather than judicial processes . . . to avoid delay and to secure
simplification of procedure.”133 The result, the report continues, was that
government officials, from police to immigration agents, were
unconstitutionally treating U.S. citizens as noncitizens:
[T]he law makes no distinction between naturalized and
unnaturalized persons in its guaranty of the great
fundamental rights which are here under consideration.
The Bill of Rights of the United States and of the States
extend their guaranties to “persons,” thus making them
rights of men and not privileges of citizenship. A
naturalized citizen has acquired substantive rights as a
129

Reuben Oppenheimer, Report on the Enforcement of the Deportation Laws of
the United States, in NAT’L COMM’N ON LAW OBSERVANCE & ENFORCEMENT,
U.S. WICKERSHAM COMMISSION REPORTS 43–45 (1931) [hereinafter
Wickersham Report] (containing extensive quotations from and citations to the
Supreme Court decisions discussed in this section).
130
For an excellent account of this resistance by Assistant Secretary of Labor
Louis Post, see BONNIE HONIG, EMERGENCY POLITICS: PARADOX, LAW,
DEMOCRACY 65–86 (2009) (using the episode of Post’s contingent decision to
oppose Edgar Hoover as an example of the interaction of principled legal
commitments with politics). For another view of Mr. Post’s more compromised
history, see KANSTROOM, DEPORTATION NATION, supra note 2, at 149–52.
131
George W. Wickersham, Newton D. Baker, Ada L. Comstock, William I.
Grubb, William S. Kenyon, Monte M. Lemann, Frank J. Loesch, Paul J.
McCormick, and Roscoe Pound endorsed the report; Henry W. Anderson
concurred, and Kenneth Mackintosh was the lone dissenter. Wickersham
Report, supra note 129, at 8–13.
132
Henry Anderson “concur[red] generally” but was “unable to concur in all of
the conclusions and recommendations adopted by the commission.”
Wickersham Report, supra note 129, at 8.
133
Id. at 5.

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citizen by virtue of his naturalization, but the most
temporary resident of the United States, owing
allegiance to another government, is, while he is on our
soil, given the equal protection of our laws, and it is not
consistent with the spirit of our institutions or the
express language of our bill of rights to deny the
substance of these guaranties to resident aliens. . . .134
Oppenheimer makes two separate points, one about the rights of
naturalized citizens and another about the rights of aliens, but joins them
here to apply the Fourteenth Amendment to noncitizens. He argues that
unless everyone is given due process protections, U.S. citizens will be
deprived of their incontrovertible right to be treated under law as U.S.
citizens.135
Oppenheimer points out that federal laws and regulations
authorizing unconstitutional actions affect aliens and U.S. citizens alike:
The very investigations to see whether suspected
persons are subject to deportation, by their nature,
involve possible interference of the gravest kind with the
rights of personal liberty. Unlawful searches and
seizures may be perpetrated; rights of lawful assembly
and free speech may be infringed. These investigations
are not public, and they often involve American citizens.
It is as important to American institutions that
fundamental principles of justice and fairness be
observed in the administration of the laws as it is that
aliens unlawfully here should be deported.136
The report attends to a series of Supreme Court decisions that
immigration agents were regularly ignoring, the most egregious
symptom of which was the unlawful deportation of U.S. citizens.137
According to Oppenheimer, the primary evidence used against those
in deportation proceedings was obtained from interrogating those in the
custody of immigration agents. He believed that this evidence was not
reliable and pointed out that the Supreme Court had held that a
confession “obtained by compulsion must be excluded whatever may
134

Id. at 7.
Id. Louis Post asserted a similar claim during a 1920 Congressional hearing.
See Honig, supra note 130, at 74–75.
136
Wickersham Report, supra note 129, at 27 (citing WILLIAM VAN VLECK,
REPORT ON ADMINISTRATIVE CONTROL OF ALIENS (1932)).
137
Oppenheimer writes, “[T]he burden of proving alienage rests upon the
Government.” Wickersham Report, supra note 129, at 44 (citing Bilokumsky v.
Tod, 263 U.S. 149 (1923)).

135

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have been the character of the compulsion, and whether the compulsion
was applied in a judicial proceeding or otherwise.”138 Oppenheimer
writes that in some cases, the “questioning brings out that the suspect is
a United States citizen, or, if he is an alien, that he is lawfully here. But
in a large proportion of the cases examined and observed the nature and
persistency of the questions can only be described as inquisitorial,”139
concluding that confessions of alienage or unlawful presence were
produced by the interrogations themselves. In some cases, the
“examining inspector has made up his mind that the alien should be
deported and is doing everything possible to accomplish that end”140 and
will insert his own views of truthfulness independent of the
statements.141 Oppenheimer quotes one inspector who writes, “‘[i]t is not
believed that he is telling the truth when he states that he has never used
any other name and that he was never ejected from the United
States.’”142 This statement is an epistemology consistent with detainees’
fears that responses other than those expected or even demanded are
futile, leading them to relinquish claims of U.S. citizenship.
Oppenheimer’s examples include affidavits with false statements of
alienage obtained through trickery, threats, and forgery.143 Today’s
episodic chastisements of EOIR adjudicators by federal judges,
including Judge Posner’s rebuke,144 seem mild in comparison with those
of their counterparts in the first quarter of the twentieth century. The
federal judges at that time believed that the documented lawbreaking of
the federal government was inexcusable and more damaging to the
country than the infractions of those the government was seeking to
deport.145 One judge wrote of the Red Raids: “Assuming petitioner is of
the so-called ‘Reds’ and of the evil practice charged against him, he and
138

Ziang Sung Wan v. United States, 266 U.S. 1, 14–15 (1924) (holding that
confession obtained under duress during interrogation may not be used as
evidence).
139
Wickersham Report, supra note 124, at 69.
140
Id. at 73.
141
Id.
142
Id.
143
Id. at 74–75.
144
See Benslimane v. Gonzalez, 430 F.3d 828, 830 (7th Cir. 2005) (“[T]he
adjudication of cases at the administrative level has fallen below the minimum
standards of legal justice.”).
145
In the 1920s, J. Edgar Hoover illegally arrested and deported thousands of
U.S. citizens and legal residents organizing on behalf of labor rights,
communism, or anarchism. See ZECHARIAH CHAFEE JR., FREEDOM OF SPEECH
(Harcourt, Brace and Howe 1920); R.G. BROWN, ZECHARIAH CHAFEE, JR.,
FELIX FRANKFURTER, ERNST FREUND, SWINBURNE HALE, FRANCIS FISHER
KANE, ALFRED S. NILES, ROSCOE POUND, JACKSON H. RALSTON, DAVID
WALLERSTEIN, FRANK P. WALSH, & TYRRELL WILLIAMS, NATIONAL POPULAR
GOVERNMENT LEAGUE REPORT UPON THE ILLEGAL PRACTICES OF THE UNITED
STATES DEPARTMENT OF JUSTICE (1920).

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his kind are less a danger to America than are those who [e]ndorse or use
the methods that brought him to deportation.”146 Another judge wrote of
Hoover’s raids, “[A] mob is a mob, whether made up of Government
officials acting under instructions from the Department of Justice, or of
criminals, loafers and the vicious classes.”147 In a third case, the federal
court held, “The ‘mild mannered’ methods employed do not change the
truth that the arrest and detention were wholly without authority of law .
. . . The relator is charged with a failure to observe the immigration laws;
she is sought to be condemned by another violation.”148 The principle
that protecting U.S. citizens from government thuggery should be
prioritized over protecting against the immigration of criminal aliens is
of course the raison d’être of the Bill of Rights and thus a longstanding
central tenet of this country’s system of governance. It is therefore not
just a small inconsistency when laws protecting against government
abuses are not enforced, but a fundamental breach of the rule of law.
Finally, the Wickersham Report does not flinch from reporting on
the dramatic personal catastrophes deportations inflict, even when done
in accordance with the law; the report describes several deportations of
longtime legal U.S. residents, who served prison sentences and left
behind deeply rooted networks of work and family.149 Oppenheimer
includes comments that suggest he imagines his readers will empathize
with the families of those who are deported, writing, for instance, that
under current laws, “[t]here was no hope” for the family with a sevenyear-old child whose father was being deported; this emotional insight is
presented for an audience Oppenheimer seems to assume would share
his views.150 Oppenheimer’s concern is for the nine percent of cases he
studied in which those being deported were related to U.S. citizens.151
Among those in ICE custody in southern Arizona who met FIRRP
attorneys, approximately one-third had U.S.-born children and if

146

The Report quotes Judge Bourquin of the District Court of Montana.
Wickersham Report, supra note 124, at 136 (quoting Ex Parte Jackson, 263 Fed.
110, 113 (D. Mont. 1920)).
147
The Report quotes Judge Anderson of the District Court of Massachusetts.
Wickersham Report, supra note 124, at 136 (quoting Coyler v. Skeffington, 265
Fed. 17, 43 (Mass. Dist. Ct. 1920)).
148
Wickersham Report, supra note 129, at 136–37 (quoting United States ex rel
Murphy v. McCandless, 40 F.2d 643 (E.D. Pa. 1930)).
149
These include the deportation of a Mexican citizen married to a U.S. citizen
with whom he has eight U.S.-born children, as well as a man of Scottish origin
convicted of violating the Mann Act and subsequently deported. Oppenheimer
quotes from the Scotsman’s letter to the immigration office: “As far as being
deported, I do not mind, but I do care what is to become of my boy’s future.”
Wickersham Report, supra note 124, at 131.
150
Id. at 132.
151
Id. at 130.

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deported would be separated from at least two relatives who were U.S.
citizens.152
The Wickersham Committee’s findings are very important because
they show a pattern of U.S. government immigration lawbreaking for
well over seventy-five years. The Department of Justice, which should
be prosecuting agents for large-scale and easily documented
lawbreaking, ignores these violations.153 Instead of wrenching
embarrassment over an extended period in which the government has
wrongfully deported citizens, the non-response appears to have calcified
in some quarters into resignation or cynicism.
C. COMPARING LAW ENFORCEMENT UNDER CIVIL STATUTES:
IMMIGRATION ENFORCEMENT AND TAX ENFORCEMENT
Attempting to explain the widespread misconduct he observed,
Oppenheimer points to a public more hostile to immigrants than to lawbreaking immigration agents:
In the enforcement and observance of certain of our
Federal laws public antagonism has often been a
deterring factor. This is not the case with respect to the
laws governing deportation of aliens . . . . [T]he defects
and abuses of the present system must in part be laid at
the door of public opinion.154
Is Oppenheimer correct about the public’s toleration of lawbreaking
among immigration agents? Or, is the U.S. public simply docile and the
government prone to expand enforcement capabilities in its regulatory
activities across the board? One way to address these questions is to
compare law enforcement tactics and budgets of Immigration and
Customs Enforcement (ICE), Citizenship and Immigration Services
152

See supra Table 4.
The threat of civil lawsuits does not deter immigration agents from
submitting defective charging documents. When plaintiffs prevail, the penalties
are monetary and covered by taxpayers. ICE employees identified as playing a
key role in deporting U.S. citizens have been promoted. Katrina Kane, who
approved Anna’s deportation to France, supra note 15, remains the Phoenix
Field Office Director; Dashanta Faucette, the ICE agent who wrote that “Mark
Lyttle” was an alias for Jose Thomas and failed to obtain either Mr. Lyttle’s
initials on the pages she completed or the signature of a corroborating witness—
both required by ICE protocols—was promoted. Moreover, the complexity of
these cases, at the crossroads of immigration, criminal, and tort law, deters law
firms from undertaking litigation on a contingency basis, and the individuals
who suffer these harms lack funds to retain attorneys for this purpose. David
and Guerrero attempted and failed to secure legal representation for the purpose
of filing lawsuits.
154
Wickersham Report, supra note 129, at 156.
153

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(CIS), and Customs and Border Patrol (CBP)—all within the
Department of Homeland Security (DHS)—with those of another
administrative agency with law enforcement duties, the Internal Revenue
Service (IRS), which is part of the Department of the Treasury.
Immigration law enforcement and tax law enforcement share
important institutional characteristics. Both are large bureaucracies
designed to administer and enforce statutes and regulations of civil law
whose violation may trigger criminal investigations; both agencies
enforce enormously complex laws that have different timelines for their
definitions and application;155 and both even share a major substantive
goal—increasing tax revenues.156 One populist justification for enforcing
immigration laws is that unlawful immigrants inhabit a black economy
and do not pay their fair share of taxes while at the same time using
government services.157 It is thus reasonable to conclude that if enforcing
immigration law is being undertaken as a measure to enhance the U.S.
coffers by enforcing tax compliance, the public would expect the IRS to
be equally vigilant in enforcing the tax code. We should therefore expect
to see the same toleration of false positives in identifying unlawful
reporting in the “haystack” of hundreds of millions of tax records—

155

Immigration law is often analogized to tax law for its complexity. Similar to
tax law, immigration law changes and old statutes’ definitions are
“grandfathered.” To administer or comply with the law thus requires knowledge
of current laws, regulations, BIA decisions, and federal court rulings across
different jurisdictions, as well as expertise on all of these from the last century.
156
Following a story line from other reports, the Boston Globe reported that
“taxpayers here illegally are lining up from Chelsea to the Berkshires, despite
the fear of deportation that is permeating the state after a massive raid in
Bedford last year and smaller raids in Boston-area cities and towns.” The story
describes the perception that immigration fears are connected to concerns about
free-loaders. Maria Sacchetti, More Illegal Immigrants are Rushing to File
Taxes: Many View Move as Way to Help Case for Residency, BOSTON GLOBE,
Feb. 17, 2008, available at http://www.boston.com/news/local/articles/2008/02/
17/more_illegal_immigrants_are_rushing_to_file_taxes.
157
A report on CNN’s “Lou Dobbs Tonight” describes undocumented
immigrants pursuing tax refunds of their own income from federally withheld
income associated with the social security numbers of U.S. citizens, and
characterizes this as “tax fraud.” Lou Dobbs Tonight: Illegal Alien Tax Fraud
Scheme (CNN television broadcast Dec. 15, 2008), transcript available at
http://transcripts.cnn.com/TRANSCRIPTS/0812/15/ldt.01.html.
The
antiimmigrant group Center for Immigration Studies states, “when all taxes paid
(direct and indirect) and all costs are considered, illegal households created a net
fiscal deficit at the federal level of more than $10 billion in 2002.”
CNTR. FOR IMMIGRATION STUDIES, The High Cost of Cheap Labor: Illegal
Immigration and the Federal Budget Executive Summary, http://www.cis.org/art
icles/2004/fiscalexec.html (last visited Nov. 11, 2010).

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misconduct resulting in the penalizing of innocent taxpayers—as exists
for false positives that arise in the enforcement of immigration laws.158
Analysis of agency budgeting, legislative changes, and legislative
oversight reveals that during the same time period Congress increased its
most punitive sanctions for immigration violations, it decreased and
defunded enforcement of tax violations. In 1995, the IRS spent 56% of
its budget on enforcement activities, compared to only 42% in 2008, a
25% decrease.159 During this same period, tax non-compliance
increased,160 caused mainly by the increase in wealth from
“nonmatchable income.” Nonmatchable income refers to transfers
unreported to the government.161 Their accumulation in individual bank
accounts can be tracked only through investigations and audits.
Unreported income from real estate tax shelters comprises a major
portion of unreported revenues. An ex-IRS agent estimated that in 2005,
$20 billion from real estate tax revenues went unreported.162 A former
partnership specialist with the IRS relates that this type of cheating is
easy.163 During the same period that tax cheating was going up, IRS
resources devoted to tax compliance were going down.
The reason for the government’s shift away from enforcing tax
compliance confirms Oppenheimer’s insights into how public outcry
affects agency behaviors. In 1997–1998, in the wake of passing the harsh
and punitive 1996 Illegal Immigration Reform and Immigrant
Responsibility Act, Congress held hearings designed to thwart alleged
“IRS harassment” of taxpayers. Members of Congress claimed that while
tax law compliance was a laudable goal, it could not justify even a
remote and, as it turned out, unfounded possibility that its enforcement
might violate due process rights: “Most of the crucial testimony in the
1997–98 hearings that preceded the new law, contending abuses by IRS
agents, has proved to be unfounded, based on false or misleading

158

Indeed, as the consequences of false positives in tax law enforcement are less
onerous than deportation, one might expect to see an even higher toleration of
false positives for those wrongfully identified as tax scofflaws compared with
those wrongfully deprived of their rights as citizens.
159
Table 28: Internal Revenue Service Collections, Costs, Personnel, and U.S.
Population by Fiscal Year, INTERNAL REVENUE SERV., http://www.irs.gov/taxst
ats/article/0,,id=207707,00.html (last visited Feb. 22, 2011).
160
KIM BLOOMQUIST, TRENDS AS CHANGES IN VARIANCE: THE CASE OF TAX
NONCOMPLIANCE
(2003),
available
at
http://www.irs.gov/pub/irssoi/bloomquist.pdf.
161
Id.
162
David Cay Johnston, Ex-IRS Agent Says Tax Evasion by Real Estate
Partners is Huge, N.Y. TIMES, Dec. 7, 2007, available at http://www.nytimes.c
om/2007/12/07/business/07taxes.html.
163
Id.

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testimony or disproved in subsequent court actions.”164 The New York
Times pointed out that “not one of the first 830 complaints of taxpayer
harassment filed under the new law has been upheld by the IRS or its
new Congressionally designated watchdog.”165 In other words,
lawmakers were so sensitive to the possibility of abuses by government
agents that they curtailed enforcement of the U.S. budget’s lifeline, its
tax revenues, a reaction that turned out to be based on false evidence.
In 2008, knowing that U.S. citizens and corporations were
fraudulently hiding hundreds of billions of dollars in legal income and
therefore cheating the tax-paying public, the IRS filed criminal
complaints leading to convictions in only 666 cases.166 In 2007, DHS
Secretary Michael Chertoff announced that enforcing immigration law
would mean “unhappy consequences for the economy,”167 but in 2008
the Department of Justice nonetheless obtained the criminal convictions
of 70,511 individuals for immigration law violations,168 a 580% increase
over the 12,182 convictions in 1995.169 In 2009, Congress allocated
$50.5 billion for the DHS.170 Five percent went to Citizenship and
Immigration Services, while ICE and CBP received a total of 33% of the
DHS budget.171 This ratio is itself a cause of illegal immigration. The
insufficient allocation for immigration services means that applications
are not processed in a timely fashion,172 and individuals are being held in
detention centers without bond pending approval of legal status, when
instead they should be with their sponsoring relatives.
164

David Cay Johnston, Inquiries Find Little Abuse by Tax Agents, N.Y. TIMES,
Aug. 15, 2000, available at http://www.nytimes.com/2000/08/15/business/inqui
ries-find-little-abuse-by-tax-agents.html.
165
Id.
166
INTERNAL REVENUE SERV., TABLE 18: CRIMINAL INVESTIGATION PROGRAM,
BY STATUS OR DISPOSITION, FISCAL YEAR 2008, CRIMINAL INVESTIGATION,
COMMUNICATION, & EDUCATION, http://www.irs.gov/pub/irs-soi/08db18ci.xls.
167
Nicole Gaouette, Worker Rules Called Likely to Hurt the Economy, L.A.
TIMES, Aug. 11, 2007, available at http://www.house.gov/apps/list/press/ca50_b
ilbray/morenews/latimesenforce.shtml (last viewed Nov. 11, 2010).
168
U.S. SENTENCING COMM’N, SOURCEBOOK FOR FEDERAL SENTENCING
STATISTICS TABLE 46: DEMOGRAPHIC AND OFFENSE INFORMATION FOR
IMMIGRATION OFFENSES FISCAL YEAR 2008, available at http://www.ussc.gov/
ANNRPT/2008/Table46.pdf.
169
IMMIGRATION & NATURALIZATION SERVS., 1996 STATISTICAL YEARBOOK OF
THE IMMIGRATION AND NATURALIZATION SERVICE: TABLE 75 CONVICTIONS FOR
IMMIGRATION AND NATIONALITY VIOLATIONS FISCAL YEARS 1990–96,
available at http://www.dhs.gov/files/statistics/publications/archive.shtm.
170
DEP’T OF HOMELAND SECURITY, BUDGET-IN-BRIEF: FISCAL YEAR 2009
(2009).
171
ICE received 11% and CBP 22%. Id.
172
U.S. CITIZENSHIP & IMMIGRATION SERVS., USCIS PRODUCTION UPDATE
(Oct. 5, 2009) (showing a backlog of over one million applications for legal
permanent residence based on marriage).

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The comparison of enforcement and budgeting in the IRS and the
DHS indicates that despite the long history of well-documented abuses
by immigration law agents,173 Congress is showing an enthusiasm for
these actions, in contrast with its efforts to curtail fictional abuses by IRS
tax compliance officials.
D. IS DEPORTING U.S. CITIZENS AN ACCEPTABLE CONSEQUENCE OF
ENFORCING IMMIGRATION LAWS?
Rep. Steve King (R-Iowa) correctly observes that as long as federal
immigration agents treat the people they encounter as a “haystack of
humanity,” U.S. citizens will be deported. However, Rep. King
incorrectly assumes this is legal. A “haystack of humanity” does not
have rights under the U.S. Constitution, but individual U.S. citizens have
full due process rights.174 If the federal government complied with the
statutory and constitutional rights of individuals, then it would be
possible to reduce these errors to the only legally acceptable rate, zero.
This is the number argued for by the authors of a recent study of
wrongful convictions in criminal courts, many of which were far less
consequential than the deprivation of U.S. citizenship.175 The lead author
underscores the reasoning of federal court opinions from the 1920s: “No
rate of preventable errors that destroy people’s lives and destroy the lives
of those close to them is acceptable.”176 One key source of these
preventable errors is the absence of due process protections against
confessions that would be inadmissible in any criminal court.177 The
Supreme Court’s 2009 ruling on the inadmissibility of confessions

173

More evidence includes settlements from lawsuits filed against ICE. See
Tyche Hendricks, U.S. Citizens Wrongly Detained, Deported by ICE, S.F.
CHRON., July 27, 2009, at 1; Tyche Hendricks, Suits for Wrongful Deportation
by ICE Rise, S.F. CHRON., July 28, 2009, at 1; Misconduct by Immigration
Agents, Memorandum from Philip Hwang, Staff Attorney for Lawyers
Committee for Civil Rights (providing list of lawsuits settled since 1996) (on
file with author).
174
See also Walter V. Schaefer, Federalism and State Criminal Procedure, 70
HARV. L. REV. 1, 25 (1956) (“It has been said of the habeas corpus cases that
one who searches for a needle in a haystack is likely to conclude that the needle
is not worth the effort. That emphasis distorts the picture. Even with the
narrowest focus it is not a needle we are looking for in these stacks of paper, but
the rights of a human being.”). A bit later, Schaefer explains that one reason
habeas appeals are rarely sustained is the very existence of this procedure, a
safeguard not in place for those physically removed from the country without
the opportunity to file a habeas motion. Id.
175
Samuel R. Gross et al., Exonerations in the United States 1989 through
2003, 95 J. CRIM. L. & CRIMINOLOGY 523 (2005).
176
Samuel Gross, quoted in Adam Liptak, Study Suspects Thousands of False
Confessions, N.Y. TIMES, Apr. 19, 2004.
177
See Corley v. United States, 129 S. Ct. 1558, 1564 (2009).

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obtained after being held in police custody bears on this analysis.178 The
Supreme Court ruled eight to one that confessions obtained after
someone was held for six hours and before one appeared before a judge
could not be used as evidence.179 Ruling against the admissibility of
statements made under the duress of imprisonment and without an
attorney, the Court pointed to a federal statute180 and its Senate floor
debate, in which Senator Joseph Tydings (D-Md.) worried that omitting
this “provision would ‘permit Federal criminal suspects to be questioned
indefinitely before they are presented to a committing magistrate.’”181
The Court also referred to centuries-old norms of due process. The
presentment requirement is not an “administrative nicety” but rather a
rule that “stretches back to the common law, when it was ‘one of the
most important’ protections ‘against unlawful arrest.’”182 The Court also
noted, “No one with any smattering of the history of 20th-century
dictatorships needs a lecture on the subject, and we understand the need
even within our own system to take care against going too far.
‘[C]ustodial police interrogation, by its very nature, isolates and
pressures the individual.’”183
ICE agents lock up people thousands of miles from their homes,
sometimes interrogating them in unmarked, unlisted “subfield offices”
inaccessible to lawyers.184 Individuals in these settings may feel

178

Id. at 1560–61.
Id.
180
“‘In any criminal prosecution by the United States or by the District of
Columbia, a confession made or given by a person who is a defendant therein,
while such person was under arrest or other detention in the custody of any lawenforcement officer or law-enforcement agency, shall not be inadmissible solely
because of delay in bringing such person before a magistrate judge or other
officer empowered to commit persons charged with offenses against the laws of
the United States or of the District of Columbia if such confession is found by
the trial judge to have been made voluntarily and if the weight to be given the
confession is left to the jury and if such confession was made or given by such
person within six hours immediately following his arrest or other detention.’”
Id. at 1564 n.2 (quoting 18 U.S.C. § 3501(c) (2006)) (emphasis added).
181
Id. at 1569 (citing 114 CONG. REC. 11,740 (daily ed. May 3, 1968)
(statement of Sen. Joseph Tydings)).
182
Id. at 1570 (quoting County of Riverside v. McLaughlin, 500 U.S. 44, 60–61
(1991) (Scalia, J., dissenting)); id. at 1561 (“Today presentment is the point at
which the judge is required to take several key steps to foreclose Government
overreaching,” including advising the defendant of his charges, the right to a
lawyer, and other protections.).
183
Id. (quoting Dickerson v. United States, 530 U.S. 428, 435 (2000)).
184
Interview with Christopher Shanahan, Field Office Director, U.S.
Immigration and Customs Enforcement, at Varick Detention Center, N.Y. (Feb.
16, 2010).
179

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pressured to sign “scratch I-213” forms185 used as the basis for the
formal I-213 “Record of Deportable/Inadmissible Alien.”186 If
respondents are not issued an Administrative Removal order or an
Expedited Removal order,187 they will appear before an adjudicator in an
immigration hearing, and these coerced statements may be used as the
sole and conclusive evidence of their alienage.188 Following a hearing in
which an adjudicator orders removal, respondents who are U.S. citizens
report that deportation officers encouraged them to waive their right to
appeal by conceding removability, statements that may be used later for
criminal immigration proceedings.189 In short, the regulations governing
immigration proceedings, and the failure of EOIR to enforce those rules
favorable to respondents,190 encourage exactly the false statements that
Congress and the Supreme Court have been vigilant to exclude from
criminal proceedings. Immigration hearing adjudicators make no
inquiries into the conditions under which statements are signed or
proffered in the hearings; statements made after being held far longer
than six hours are considered by the EOIR as “trustworthy and
185

A U.S. Army Special Operations soldier reports that their interrogation
protocols emphasize obtaining confessions when individuals are isolated and in
transit. Interview with U.S. Army Special Operations soldier, Columbus, Ga.
(2008). ICE states that ICE subfield offices are responsible for “84 percent of all
book-ins.” SCHRIRO, supra note 59, at 9.
186
ICE ACADEMY, ICE 287(G) PARTICIPANT WORKBOOK—I-213 PREPARATION
(Mar. 2006), available at http://www.scribd.com/doc/21968656/ICE-287-gParticipant-Workbook-I-213-Preparation.
187
See Rept., supra note 5, at 67.
188
For the due process problems with immigration hearings, see APPLESEED,
ASSEMBLY LINE INJUSTICE: BLUEPRINT TO REFORM AMERICA’S IMMIGRATION
COURTS (May 2009), available at http://www.appleseeds.net/Portals/0/Docume
nts/Publications/Assembly%20Line%20Injustice.pdf. In addition to the due
process violations noted by the Appleseed report, an overarching problem is the
failure of the DOJ’s Office of Professional Responsibility (OPR) to ensure that
the EOIR adjudicators follow EOIR procedures and to censure them for
misconduct. See Jacqueline Stevens, Atlanta Immigration Judge Sics Guards on
Professor/Writer Who Revealed Improprieties, STATES WITHOUT NATIONS
BLOG (Apr. 25, 2010, 6:16 PM), http://stateswithoutnations.blogspot.com/2010/
04/atlanta-immigration-judge-sics-guards.html. Moreover, the EOIR withholds
from public inspection OPR decisions based on complaints against EOIR
adjudicators while making available on its web pages information decisions
indicating misconduct by practitioners. See U.S. DEP’T OF JUSTICE, LIST OF
CURRENTLY DISCIPLINED PRACTITIONERS (Dec. 9, 2010), http://www.justice.go
v/eoir/profcond/chart.htm.
189
Mr. Lyttle, Mr. Francis, and William all reported that deportation officers
pressured them to sign statements indicating they were not U.S. citizens and had
agreed to be deported. To achieve this, the deportation officers would give them
discouraging prognoses and emphasize the length they would be held before
obtaining another hearing. See supra Table 6.
190
See 8 C.F.R. § 1003.10 (2007); see also discussion supra note 86.

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admissible as evidence to prove alienage or deportability.”191 When
people attempt to recant these signed statements in subsequent ICE
interviews, they may receive threats that they will be charged with lying
to a federal agent.192 ICE agents have demonstrably lied on these
forms,193 and EOIR adjudicators routinely accept statements made under
duress or coercion, even when recanted in the formal setting of a hearing
where respondents may have unfounded hopes for due process
191

“A Form I-213 can be authenticated by any recognized procedure, such as
certification by an INS district director.” Iran v. INS, 656 F.2d 469, 472 (9th
Cir. 1981); see also Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995). Here,
because the [OFFICIAL] certified the respondent’s Form I-213, this Court finds
that it has been properly authenticated. Absent any evidence that a Form I-213
contains information that is incorrect or was obtained by coercion or duress, it is
inherently trustworthy and admissible as evidence to prove alienage or
deportability. Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988); see
also Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995).” EXEC. OFFICE FOR
IMMIGRATION REVIEW, IMMIGRATION JUDGE BENCHBOOK (2007), available at
http://www.justice.gov/eoir/vll/benchbook/resources/sfoutline/Form_I213_Stan
dard_Language.html. Despite the EOIR’s rules about statements made under
duress, the vast majority of statements made in I-213 interviews occur under
duress, at minimum, and even may be coerced; respondents may also be
instructed to sign documents that they have not read, or, agents may write that
respondents “refuse to sign” documents they were never shown. Telephone
Interview with Michelle Fei, Co-Director, Immigrant Defense Project (July 22,
2009) (stating that in Rikers Island Jail, an inmate told her that an ICE agent
threatened his family with deportation unless he signed a statement agreeing to
deportation); Interview with Johann Francis, deported U.S. citizen, in Decatur,
Ga. (Jan. 15, 2010) (Francis was deported after being held at Eloy Detention
Center and signing forms stipulating to his lack of a legal right to remain in the
country).
192
Telephone Interview with ICE Deportation Officer (June 2009); Atlanta ICE
report on Mr. Lyttle’s return, accusing him of lying to a federal agent (Apr. 24,
2009) (on file with author).
193
In the case of Mr. Lyttle, ICE agents stated they found no evidence he was a
U.S. citizen, even though his FBI report, included in Mr. Lyttle’s ICE file, states
in several places that he was born in the United States and that his citizenship is
“United States.” His I-213, contained in his EOIR file, states that a record check
was performed and confirmed he was an alien, but the adjudicator in Atlanta,
William Cassidy, who possessed the I-213 and no certificate of service on Mr.
Lyttle, never instructed ICE to share this document with Mr. Lyttle, who was
thus tried with secret evidence. Interview with Mark Lyttle, in Kennesaw, Ga.
(June 22, 2009). In a separate incident, detained respondent Clifford Bryan was
agitated when the adjudicator, J. Dan Pelletier in Lumpkin, Georgia, reading
from his I-213, which was not shared with Mr. Bryan, told him that his wife was
a Jamaican citizen and resident. Mr. Bryan told the EOIR adjudicator that his
wife was U.S.-born and a U.S. resident in Michigan, statements Mrs. Bryan had
made as well to the deportation officer. See Master Calendar Hearing, Stewart
Detention Center (Jan. 14, 2010); Telephone Interview with Neferet Bryan (Jan.
14, 2010) (notes from hearing and interview on file with author); see also
Kanstroom, supra note 20.

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protections promised by the court room decor.194 People who have a
valid claim to citizenship or legal residence sign these statements
because they do not have funds for an attorney and do not trust the
unlawful system to treat them fairly.195
IV. HOW ARE U.S. CITIZENS DEPORTED?
The discussion above describes some of the due process violations
associated with the government detaining and deporting U.S. citizens.
Three overarching and converging laws and practices trigger the events
in Tables Five and Six.196 The first and most significant cause of U.S.
citizens being deported is the absence of accountability and transparency
in immigration law enforcement,197 which results in misconduct and its
tolerance among ICE Field Office Directors, ICE attorneys, EOIR
adjudicators, and practitioners who participate in or are numb to the
daily lawbreaking. Widespread, unlawful racial and ethnic profiling at
the borders, in workplaces, and in prisons, as well as the rubberstamping of the resulting unwarranted arrests by supervisors and EOIR
adjudicators, many of whom were themselves ICE prosecutors,198 are
tolerated and then hidden. Moreover, each time ICE acts with negligence
or malfeasance, it deports the evidence, giving ICE agents a de facto
immunity from prosecution for criminal activities. The time-sensitive
character of these events makes filing grievances impractical and
pointless.199 The second reason U.S. citizens are being detained and
194

Respondents are frequently confused about the status of the proceedings; the
staged resemblance to a criminal court room leads respondents to believe they
have more rights than they actually do.
195
Failure to follow the rule of law in immigration contexts has consequences
similar to what happens when the rule of law fails in other civil matters: the
laws lose legitimacy and individuals pursue extra-legal avenues for entrance.
See Juliet Stumpf, Associate Professor, Lewis & Clark Law School, Obeying
Immigration Law: The Compliance Conundrum, presented at the Annual
Meeting of Law, Culture and Humanities, Boston, Ma. (Apr. 4, 2009).
196
See supra Part II.A.
197
See Stevens, supra note 177; Jacqueline Stevens, ICE Agents’ Ruse
Operations, NATION, Dec. 17, 2009, available at http://www.thenation.com/prin
t/article/ice-agents-ruse-operations; Jacqueline Stevens, Secret Courts Exploit
Immigrants, NATION, June 29, 2009, available at http://www.thenation.com/doc
/20090629/stevens; Nina Bernstein, Officials Hid Truth of Immigrant Deaths in
Jail, N.Y. TIMES, Jan. 10, 2010, at A1.
198
See supra note 289; TRANSACTIONAL RECORDS ACCESS CLEARINGHOUSE,
UPDATED DETAILED REPORTS ON INDIVIDUAL IMMIGRATION JUDGES,
http://trac.syr.edu/immigration/reports/judgereports (Sept. 2010).
199
Mr. Lyttle filed eight written grievances while he was in ICE custody in the
Stewart Detention Center in late 2008. ICE never investigated any of them but
on June 8, 2010 stated they were exempt from release of responsive documents
under the Freedom of Information Act (FOIA) because the release would
“interfere with law enforcement proceedings.” However, there was no active

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deported is the comingling of criminal with immigration law
enforcement.200 And finally, the criminalization of some immigration
violations has caused the wrongful arrest and conviction of U.S. citizens
who assert their citizenship, as well as discouraged them from claiming
citizenship for fear of arrest.
A. DISCRETION WITHOUT ACCOUNTABILITY FOR ARRESTING OFFICERS
ICE officers empowered to arrest people for being in the country
illegally have enormous discretion but receive little legal training and are
not subject to public oversight.201 This is important because once an
arrest has been made and an agent issues a deportation order, there is
little possibility for discretion later. Even though the initial apprehension
may have been in error, “most aliens have few alternatives to appearing
before immigration court after entering the removal proceeding
phase.”202 Whereas criminal prosecutors have discretion,203 ICE
prosecutors are expected to file and attempt to effect all deportation
orders.204 Effectively acting in secret—unlike police, the vast majority of
ICE agents will never testify in an immigration hearing and thus never
face a respondent who might dispute their statements in front of an
adjudicator—people with no law enforcement training who may have
been recruited through the Internet, including Craigslist,205 and who may
investigation. A further explanation for the exemption was that Mr. Lyttle’s
2008 complaints are in a “queue” for a “possible investigation,” a position that
the DHS FOIA appeal office has upheld. Telephone Interview with William
Holzerland, FOIA Associate Director, Dep’t of Homeland Security (July 2010).
200
Stumpf, supra note 92.
201
“[A]lthough officers exercise discretion when deciding whether or not to
take action to initiate the removal process, ICE does not have guidance on
officers’ exercise of discretion on who to stop, question, and arrest when
initiating the removal process. Without comprehensive policies, procedures, and
practices, ICE lacks assurance that management directives will be conducted as
intended and that ICE officers have the appropriate tools to fully inform their
exercise of discretion.” U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-08-67,
IMMIGRATION ENFORCEMENT: ICE COULD IMPROVE CONTROLS TO HELP GUIDE
ALIEN REMOVAL DECISION MAKING 19–20 (Oct. 15, 2007).
202
Id. at 16.
203
See generally Rodney Endgen, Have Sentencing Reforms Displaced
Discretion over Sentencing from Judges to Prosecutors?, in THE CHANGING
ROLE OF THE AMERICAN PROSECUTOR 73–90 (John L. Worrall & M. Elaine
Nugent-Borakove eds., 2008).
204
U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 196, at 66.
205
See, e.g., Posting of U.S. Customs & Border Protection to craigslist.org (Oct.
26, 2010) (on file with author) (“Discover a challenging and rewarding career in
Customs and Border Protection, the sole organization responsible for securing
the nation’s borders. As part of our carefully selected, highly trained team,
you’ll leverage state-of-the-art technology, innovative strategies and world-wide
partnerships to protect our communities and defend our frontier. For complete

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have no respect for the rule of law,206 have been shunting U.S. citizens
by the thousands into deportation proceedings, forcing them to choose
between their liberty and their citizenship.
B. BORDER PATROL UNLAWFULLY PREVENTING ENTRY OF U.S. CITIZENS
At the border, the law-breaking behavior may include Border Patrol
agents tearing up207 or disregarding the U.S. birth certificates of
Mexican-Americans,208 especially Mexican-American teenagers.209

information including job requirements and how to apply go to:
http://www.recruitingdepart.com/3166ID.htm.”).
206
For example, Border Patrol Officer Trevino at the Hidalgo crossing in Texas,
the port that deported Mr. Lyttle twice and another U.S. citizen a year later, told
me, “I don’t care what the law says. The law doesn’t matter to me.” Interview
with Trevino, Border Patrol officer, in Hidalgo, Tx. (June 24, 2009). ICE public
affairs sets the tone by lying about the agency policies and practices. Agents
who encounter the cover-ups effected through this propaganda effort are led to
believe, correctly, that regardless of what they do, agency headquarters prefer to
cover-up illegal actions rather than investigate them and prosecute wrongdoers.
See Bernstein, supra note 197; E-mail from Barbara Gonzalez, Public Affairs
Officer, Immigration & Control Enforcement (June 24, 2009) (indicating that
there was no investigation of the agents who signed false statements on Mr.
Lyttle’s I-213 forms).
207
“Ricardo” was born in Los Angeles and grew up in Phoenix, Arizona. In
2003, he was a teenage passenger in a car driving through Nogales, Arizona.
The car was pulled over by Border Patrol agents. Ricardo presented his birth
certificate and Arizona driver’s license, proof of U.S. citizenship. The agent tore
up Ricardo’s birth certificate, saying that he was saving Ricardo from a charge
of presenting false documents. The agent warned Ricardo that if he refused to
sign a statement saying he was a Mexican national, Ricardo could face time in
prison. Intimidated, Ricardo signed a document his attorney believes was a
stipulated order of removal. In 2006, Ricardo was arrested on the U.S. side of
the border and charged with a drug crime. Because of the deportation order, he
also was charged with violating 8 U.S.C. § 1326 (Illegal Reentry). At that point,
he was appointed counsel for the criminal proceeding. As Ricardo no longer had
his birth certificate, the attorney immediately obtained affidavits from two aunts
who had witnessed Ricardo’s birth in a Los Angeles hospital and the prosecutor
moved to dismiss the charge. Telephone Interview with Joel Parris, Attorney,
Federal Defenders, Inc. (Dec. 2, 2009).
208
22 C.F.R. § 53.2 (b)(2) states: “A U.S. citizen is not required to bear a valid
U.S. passport to enter or depart the United States . . . [w]hen traveling entirely
within the Western Hemisphere on a cruise ship, and . . . if the U.S. citizen is
under the age of 16, he or she may present either an original or a copy of his or
her birth certificate, a Consular Report of Birth Abroad issued by the
Department, or a Certificate of Naturalization issued by U.S. Citizenship and
Immigration Services.” Prior to 2009, a birth certificate was considered
sufficient proof of U.S. citizenship for children under nineteen. See DEP’T OF
HOMELAND SECURITY, DOCUMENTS REQUIRED FOR TRAVELERS DEPARTING
FROM OR ARRIVING IN THE UNITED STATES AT SEA AND LAND PORTS-OF-ENTRY

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1. Guillermo Olivares
Typical of the thirty-three episodes I tracked in which U.S. citizens
were refused entry at the border210 is the experience of Guillermo
Olivares, born and raised in Los Angeles County.211 In 2000, Olivares
presented a copy of his birth certificate to a Border Patrol agent at the
San Ysidro crossing.212 A copy of or original birth certificate was a
legally valid form of identification for all U.S. citizens crossing at that
time,213 and still valid today for children under 16 or children under 19 if
travelling with a school or religious group.214 However, instead of
allowing him to enter, Border Patrol agents required his mother to bring
the certified original from Los Angeles before allowing Olivares to
return to his home.215

WITHIN THE WESTERN HEMISPHERE 6 (2007), available at
http://www.dhs.gov/xlibrary/assets/whti_landseafinalrule.pdf.
209
I recorded seven cases of U.S. citizens denied entry at the U.S.-Mexican
border despite presenting copies of U.S. birth certificates. All individuals had
Hispanic surnames and were under eighteen years old the first time Border
Patrol agents prevented them from returning to the United States. Each was
turned away on two to fifteen occasions.
210
The sources of these accounts are lawsuits, media reports, interviews with
U.S. citizens and their attorneys, and government documents in the files of
deported U.S. citizens, many obtained in their entirety through requests filed
under the FOIA with respondent privacy waivers.
211
Press Release, ACLU of Southern California, U.S. Citizen Who Was
Illegally Detained and Twice Deported Is Latest Victim of Government’s
Unconstitutional Immigration Enforcement Policy (Oct. 29, 2008), available at
http://www.aclu-sc.org/releases/view/102910. The description of Olivares’s
experiences is based on the events in this press release and an interview with the
ACLU attorney familiar with the underlying events. Telephone Interview with
Jennie Pasquarella, Staff Attorney, ACLU of Southern California (Dec. 8,
2009).
212
Id.
213
U.S. CUSTOMS & BORDER PROTECTION, CBP INSPECTOR’S FIELD MANUAL
40 (2008) (identifying a “Birth Certificate showing a place of birth in the U.S.
accompanied by good identification” as evidence of U.S. citizenship). This is
consistent with 22 C.F.R. § 53.2(b) (2006) (stating that U.S. citizens are not
required to carry a passport “[w]hen traveling between the United States and
any country, territory, or island adjacent thereto in North, South or Central
America excluding Cuba; provided, that this exception is not applicable to any
such person when proceeding to or arriving from a place outside the United
States for which a valid passport is required under this part if such travel is
accomplished within 60 days of departure from the United States via any
country or territory in North, South or Central America or any island adjacent
thereto . . .”).
214
22 C.F.R. § 53.2(b)(11) (2011).
215
ACLU Press Release, supra note 206.
FROM

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In 2007, while in prison, Olivares was “coerced into signing papers
that were never explained to him and was deported to Mexico.”216 When
he tried to reenter, the border guards ignored his claim of U.S.
citizenship and refused him entry. Olivares lived in Jalisco, Mexico until
June 2008, when he learned of his father’s serious illness and tried to use
the certified copy of his birth certificate to return to Los Angeles.217
When CBP again refused him entry, he tried to cross without inspection,
was apprehended and charged with attempting to cross without
inspection, and deported.218 On September 2, 2008, Olivares’ father died.
Olivares tried to return to Los Angeles again, and was deported a third
time.219 Later in September, Olivares, with his mother, re-approached the
Border Patrol. This time, ICE sent him to the Otay Mesa Detention
Center in San Diego, where he was held until October 9, 2008, when an
ACLU attorney succeeded in having Olivares released from ICE custody
because ICE has no jurisdiction over U.S. citizens.220 There have been
similar successes in federal court. For example, in 2010, a judge in
Texas rejected government claims that Cynthia Trevino was not a U.S.
citizen and ordered the State Department to issue her a U.S. passport;221
a federal judge also ordered the Border Patrol to allow other individuals
claiming U.S. citizenship entrance into the United States for the purpose
of adjudicating their claims.222

216

Id.
Id.
218
Id.
219
Id.
220
Olivares’ mother, who was frustrated with previous efforts to have Olivares
released, said, “‘They would never listen. It felt so unfair that they could simply
disbelieve my son’s citizenship without giving us any chance to prove that what
we said was true. It made me panicked and anxious . . . . I just wanted my son to
be able to come home.’” Id.
221
Jazmine Ulloa, Woman Wins Passport Fight, BROWNSVILLE HERALD, Oct.
15, 2010, available at http://www.brownsvilleherald.com/articles/woman118143-fight-passport.html.
222
Alvarez v. Freeman, No. 1:07-cv-00218 (D. Tex. Aug. 17, 2009) (“The
Court ORDERED the Respondents to admit the Petitioner to the United States
with the same rights as a person presenting a facially valid birth card and receipt
for one’s passport application and shall return to him any and all documents
confiscated from him on or about June 7, 2009, when he was refused admission
and returned to Mexico.”). For similar orders, see PACER docket for Trevino v.
Rice, 1:07-cv-00218 (D. Tex.) (class action on behalf of individuals whose birth
certificates were invalidated after the conviction of a midwife for fraudulently
recording live births; the petitioners dispute the validity of her statements that
their particular birth certificates were fraudulently recorded).
217

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2. Raymond
The case of Raymond223 illustrates the weight EOIR adjudicators
place on statements made by U.S. citizens who, under duress, may sign
false statements of alienage at the border to avoid arrest.224 Raymond
was born in Colorado, and when he was eight years old, Raymond’s
mother filed for divorce. Shortly thereafter, Raymond was kidnapped by
his father and raised in Mexico. In 2007, Raymond, then 17, tried to
return to the United States at Nogales. A Border Patrol agent tore up his
birth certificate and told him that he had to sign a removal order stating
he was not a U.S. citizen or he would go to jail. Raymond signed it and
returned to Mexico. After discussing the situation with his father’s
brothers in Arizona, Raymond decided to allow himself to be arrested
and held in a detention center so he could appear before an EOIR
adjudicator and reclaim his citizenship. At a secret hearing held in 2008
at the Florence Service Processing Center,225 the adjudicator disregarded
the three-inch file that included a certified state copy of Raymond’s
Colorado birth certificate, his mother’s copious prenatal medical records,
the hospital data from Raymond’s reflex tests, and a photograph of
Raymond at age eight holding a copy of the same birth certificate that he
had presented to the Border Patrol agent.226 The only evidence presented
by the ICE attorney to support the position that Raymond was not a U.S.
citizen was the earlier statement of alienage that Raymond signed as a
teenager when threatened with arrest by Border Patrol. The adjudicator
affirmed ICE’s deportation order, and Raymond was sent back to
Mexico.
C. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM
Over the last 25 years, a deportation process targeting noncitizens
with criminal convictions227 has led to a new legal beast one analyst calls
223

The name of this individual has been changed.
Information for this account is from an attorney at FIRRP and documents in
Raymond’s file that I inspected in the FIRRP office in Florence, Arizona on
March 25, 2009.
225
See Stevens, supra note 9 (describing various unlawful actions in
immigration courts).
226
A typographical line in an enlarged photograph confirms that the birth
certificate held by Raymond when he was eight is the same as the certified
original presented to the EOIR adjudicator. Id.
227
See Schuck & Williams, supra note 7, at 463 n.326 (explaining that in 1988,
“aggravated felons were ‘conclusively presumed to be deportable,’ making
them ineligible for several forms of relief, including withholding of deportation
under INA 243(h)(2) and suspension of deportation under INA 244(a)”). In
1994, the Crime Bill eliminated for the first time the right to an administrative
hearing for certain classes of alleged immigrants. Id. at 390; see 8 U.S.C. §
1228(c) (2006).
224

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“crimmigration.”228 Juliet Stumpf describes how the mingling of
adjudicating civil and criminal statuses and penalties lacks a legitimate
basis in legal and political theory, resulting in poor policy goals and
outcomes.229 The policies are largely targeting long-term residents and
their U.S.-based families,230 many of whom are U.S. citizens.231 Hence,
these policies affect well-established communities that include people
with varying degrees of connections to their ancestors’ countries of
origins, and not only “immigrants”232 —a concept that implies recent
new-comers who lack membership in the extant political body.233 The
policies provide prisons and jails incentives for alerting immigration
authorities to “criminal aliens,” resulting in their detention and
deportation, possibly without an immigration hearing or even notice to
their relatives or attorneys.234 The State Criminal Alien Assistance
Program (SCAAP)235 has three main policy goals: (1) to deport
228

Stumpf, supra note 92, at 368, 372.
Id.
230
See Markowitz, supra note 20, at 290 (arguing that laws designed for
“exclusion” are being used for expulsion).
231
Supra Table 4.
232
Stumpf’s analysis also makes this clear. One concern is that the immigration
law scholarship more generally frames these policies as harmful for immigrants.
See Stumpf, supra note 90, at 376–77. This has the unintended consequence of
metonymically associating U.S. citizens and legal permanent residents with the
“immigrant” population. For example, the ACLU’s Immigrant Rights Project
represents U.S. citizens, such as Peter Guzman and Mark Lyttle, who have been
detained or deported. These individuals are demonstrably born in the United
States and are not immigrants; hence a more accurate label for this group’s
rights is “resident rights” or simply “civil rights.”
233
See HIROSHI MOTOMURA, AMERICANS IN WAITING: THE LOST STORY OF
IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES (2006) (showing the
change in public policy toward legal residents, and suggesting that the bright
legal line between legal residency and citizenship should be erased). Part of
erasing the line may require rethinking the vocabulary for describing legal
residents.
234
A common misperception is that the deportation of U.S. citizens can be
traced to post-9/11 policies. The creation of the Department of Homeland
Security in 2003 increased the number of U.S. citizens who would be deported
by increasing the total volume of deportations, but these deportations were
already part of the “crimmigration” system in place since the 1980s. For a
summary of the legislative history, see generally Schuck & Williams, supra
note 7; Jennifer Hansen, Sanctuary’s Demise: the Unintended Effects of State
and Local Enforcement of Immigration Law, 10 SCHOLAR 289 (2008).
Eliminating due process protections has resulted in the unlawful lock-up of U.S.
citizens without judicial review. See, e.g., Nancy Morawetz, Detention
Decisions and Access to Habeas Corpus for Immigrants Facing Deportation, 25
B.C. THIRD WORLD L.J. 13, 29 (2005) (describing a petitioner who “abandoned
his legal battle and was deported despite his citizenship claim”).
235
See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, § 20301, 108 Stat. 1796 (1994) (codified as amended at 8 U.S.C. §
229

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nonviolent offenders who entered without inspection, rather than house
them at the expense of state prisons and local jails;236 (2) to deport
noncitizens, including legal permanent residents, who are “aggravated
felons”; and (3) to partially compensate state and local law enforcement
agencies incarcerating noncitizens. A 1994 Texas legislative analyst
forecast the implications of the state’s SCAAP participation: “The major
gains to general revenue would be in the form of additional federal aid
received under the Crime Bill for compensation to the state for the
incarceration of illegal aliens”237 or any inmate identified as an illegal
alien, including U.S. citizens.238 Designed amidst the misperception that
“deportees had more due process than did an American citizen,”239 the
policies have reduced the rights of U.S. citizens in the interior to the
status of aliens at the border.240 SCAAP requires participating prisons
and jails to enter an inmate’s “alien” information,241 which is then passed

1231(i)); Dep’t of Justice Reauthorization Act of 2005, Pub. L. 109-162, §
1196, 119 Stat. 3130 (reauthorizing SCAAP).
236
This policy is called “early parole on condition of deportation.” See infra
Part VI.B.1 (policy and David’s deportation papers).
237
Identify All Incarcerated Illegal Aliens and Deport Eligible Nonviolent
Criminal Aliens, in 2 TEXAS COMPTROLLER OF PUBLIC ACCOUNTS, GAINING
GROUND: PROGRESS AND REFORM IN STATE GOVERNMENT (1994), available at
http://www.window.state.tx.us/tpr/tprgg/psc02gga.txt.
238
The Texas legislative analyst’s report on how other states had been handling
their alien inmate population stated, “California’s Department of Corrections
reports that its process of identification goes far beyond self-reporting. An
official in its Classification and Institution Division stated that caseworkers look
at court records, ‘rap sheets,’ probation officer reports and other forms of
identification, including Social Security cards and birth certificates. If there is
any doubt about citizenship, the inmate is referred to INS for further review.
Basically, California’s policy is that, unless inmates can prove they are U.S.
citizens, they are referred to INS, which will screen and identify those it deems
to be deportable.” Id. As early as 1994, researchers had noted that states were
unlawfully counting for per diem compensation individuals who were born in
the United States. REBECCA CLARK ET AL., THE FISCAL IMPACTS OF
UNDOCUMENTED ALIENS: SELECTED ESTIMATES FOR SEVEN STATES 39–40
nn.14 & 42 (1994) (finding that INS data on California and Texas alien inmates
is overstated due to inclusion of U.S. citizens); see also infra note 247 (David’s
listing in Georgia database of alien inmates).
239
Schuck & Williams, supra note 7, at 436 (quoting 136 CONG. REC. S17, 106,
S17, 109 (1990) (statement of Sen. Simpson)).
240
Id. at 412 n.191 (noting a 1989 GAO study indicating that cases in which
deportees sought relief took “five times longer than cases in which no relief was
sought,” and that “only about twenty-five percent . . . were ultimately
successful”). Schuck and Williams’ minimization of this number is jarring in
light of the consequences.
241
BUREAU OF JUSTICE ASSISTANCE, U.S. DEP’T OF JUSTICE, STATE CRIMINAL
ALIEN ASSISTANCE PROGRAM, http://www.ojp.usdoj.gov/BJA/grant/scaap.html
(last visited Feb. 22, 2011).

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on to ICE agents who issue administrative removal orders or Notices to
Appear in immigration court.
According to the Government Accountability Office (GAO), the rate
of SCAAP compliance appears to be 100%,242 indicating a nationwide
prison staff eager to support federal immigration policies but lacking the
education and training, as well as motivation, to distinguish citizens
from aliens. Documented patterns of ignorance and malfeasance include
bizarrely inaccurate state prison ethnic and racial classification
systems,243 tactical disregard of self-identifications by prison intake staff

242

OFFICE OF THE INSPECTOR GEN., COOPERATION OF SCAAP RECIPIENTS IN
REMOVAL OF CRIMINAL ALIENS FROM THE UNITED STATES (2007),
available at http://www.justice.gov/oig/reports/OJP/a0707/final.pdf. The GAO
reviewed 76 randomly selected files of individuals the investigators considered
criminal aliens from 164 agencies. Id. at 21. All 76 had been reported to ICE.
Id. This is a marked increase from the 1990s. Government research then
indicated that the “INS failed to screen more than a third of the foreign-born
prisoners.” Schuck & Williams, supra note 7, at 407 (citing U.S. GOV’T
ACCOUNTABILITY OFFICE, GAO/T-GGD-97-154, CRIMINAL ALIENS: INS
EFFORTS TO IDENTIFY & REMOVE IMPRISONED ALIENS NEEDS TO BE IMPROVED
(1997), available at http://www.gao.gov/archive/1997/gg97154t.pdf).
243
The persistence of such anachronistic, foolish typologies is both a cause and
a symptom of why U.S. citizens are being deported. For instance, the
Department of Corrections in North Carolina uses an “Oriental” designation,
and staff applied this to someone who has no relatives from Asia: the Neuse
Correctional Facility Offender Information Report for Mark Lyttle indicates on
the line for “ethnicity” that he is “Oriental.” FOIA response to August 27, 2008
enquiry, NRC 2009025567, p. 263. The Active Foreign Inmates database for the
Georgia Department of Corrections list for August 2009 includes the names of
32 individuals who supposedly self-identified as citizens of the country
“Africa,” including those who, on belief of their attorneys, had never been to
Africa and were U.S. citizens. GA. DEP’T OF CORR. OFFICE OF PLANNING &
ANALYSIS, Active Inmates Claiming Foreign Birth or Citizenship (2009) (on file
with author). One attorney said of a client on this list, “This guy’s a good ol’
boy. I’d be more than amazed to find out he’s from Africa.” Telephone
Interview with Georgia criminal defense attorney (Sept. 22, 2009). The database
also lists two individuals as citizens of China who appeared to have no reason
for the designation other than the middle or last name “Lee.” (The photographs
online show one man who is phenotypically African-American and the other
who is phenotypically White). When I inquired about these apparent anomalies,
the DOC official supervising the list’s production and dissemination said that
they might have been born on U.S. military bases in China. After it was pointed
out that the U.S. has never had military bases in China, the official provided
anecdotes about children of so-called mixed-race couples he knew. After it was
pointed out that anyone born in the U.S. would be a U.S. citizen he said that
maybe the inmates were born on a U.S. military base in China. Telephone
Interview with Georgia DOC Data Warehouse Manager (Sept. 21, 2009).
THE

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assigning alienage as a trigger for ICE review,244 and the absence of any
due process for inmates to challenge wrongful designations.
1. “David”
In a case typical of deportation orders initiated from prisons,
“David,”245 a U.S. citizen at birth (through acquired citizenship),246 was
interviewed by an immigration agent in a Georgia prison in 1998 as part
of a group that appears to have been flagged as noncitizens during intake
interviews, pursuant to SCAAP.247 The details of his experience are a
series of shocking civil rights violations. It is important to underscore
that the severity of the misconduct does not indicate that it is aberrant,
only underreported. David’s narrative is typical of what I encountered in
my findings of the SCAAP implementation, from Los Angeles to
Raleigh.248

244

Once someone in the interior asserts birth in the United States, the
government bears the burden of proof to show otherwise. See 8 C.F.R. §
1240.8(c). But a Los Angeles Sheriff’s Department employee said in an
affidavit it was legal for him to substitute his own judgments for accurate
assertions of U.S. citizenship because “persons who are arrested [especially
illegal aliens] often times falsely represent their place of birth.” Federal
Respondents Response to Request for Status Conference, Declaration by Al
Wood, Guzman v. Chertoff, No. CV 07-3746-GHK (C.D. Cal. June 15, 2007).
A Neuse Correctional Institution supervisor said that the prison’s job is to alert
ICE to possible alienage but not to make a final determination. Upon learning
that ICE issued an administrative removal order for someone Neuse had
incorrectly characterized as born in Mexico, the officer supervisor said, “I don’t
understand how ICE did this. They’re the ones who are supposed to check this.”
Telephone Interview with supervisor, Neuse Correctional Institution (Aug. 19,
2009).
245
This is not his real name.
246
Copy of David’s U.S. passport and documents from his EOIR file (on file
with author).
247
In November 1998, David was given a ten-year sentence for a victimless
crime so rarely charged that naming it would jeopardize his privacy.
248
Many of those whose records I inspected and whose experiences I recorded
among the residents of a camp for the “deportados” in June 2009 in Reynosa,
Mexico had been deported by EOIR adjudicator William Cassidy, the same
individual who deported Mark Lyttle. The accounts and documents of deported
residents in the Reynosa camps and shelters revealed one or more serious due
process violations in their deportations, including groundless arrests by North
Carolina and Georgia police based on ethnic profiling, confinement by local law
enforcement for more than forty-eight hours before transfer to ICE custody,
being bullied into signing removal orders by ICE agents in prisons for charges
that do not legally trigger deportation, and hearings that differed significantly
from the protocols described in the Immigration Judge Benchbook. See
Jacqueline Stevens, It’s a Small World, STATES WITHOUT NATIONS BLOG (June
24, 2009), http://stateswithoutnations.blogspot.com/2009/06/its-small-world.ht

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David describes the first steps of his 1999 wrongful classification as
an illegal alien in the Georgia prison system as follows:
Pete P.249 visited me in Hancock [State Prison]. He’s
from immigration. The first time he visited me in
Jackson250 he asked me if I was illegal and I told him, “I
am an American citizen.” He said, “I am not going to
take pictures or fingerprints, but if you are lying then
you will have serious problems.” He told me he knew
everyone else was illegal, but he believed me. He led me
along.251
David was born in Mexico, but his father was a U.S. citizen by birth252
and met the other criteria for conferring U.S. citizenship to David and his
siblings.253
I asked David how he came to be interviewed by Agent P. in the first
place. David said that after spending a few weeks in Georgia jails,
They sent me to Jackson Diagnostic. Everybody goes
there. I met Agent P. there. They called a group of
Hispanics and talked to us. They took everybody’s
pictures except for me. That’s the way they do it, if your
name is Hispanic. It doesn’t matter if you’re Puerto
Rican, just if your name is Hispanic. He wasn’t sure if I
was lying but it’s against the law to take my fingerprints
ml. The secrecy with which ICE and the EOIR operate is responsible for the
lack of public information about these processes. The public’s ignorance
ossifies into the belief that these events do not and could not transpire. With this
in mind, I am documenting in detail the processes that led to David’s false
imprisonment for several years beyond when he should have been released after
serving time for his criminal conviction.
249
Last name omitted.
250
Georgia Diagnostic and Classification Prison in Jackson, Ga.
251
The direct quotations are responses to my questions. The transcript reflects
only David’s replies. The sources for this narrative are David’s prison records,
deportation documents and immigration court records and decisions, and
telephone interviews with David, his pro bono attorney Neil Rambana in
Tallahassee, Florida, David’s sister in Long Beach, California, and wardens and
other prison officials in Georgia between June 12, 2008 and December 18, 2008
(on file with author).
252
His father moved as a child with his family to Mexico in 1925, during the
period of forced expulsions. See Balderrama & Rodriguez, supra note 2.
253
On December 16, 1989, the consular office in Juarez, Mexico issued David,
at the age of 16, a consular card indicating his U.S. citizenship. He used this to
enter the country, but he did not have this with him in the prison. Copy of
consular card (on file with author); Telephone Interview with David (Dec. 18,
2008).

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if I’m an American citizen. I went to Coffee [minimum
security] because he didn’t find nothing on me.
I asked about the nature of agent P’s questions:
He was asking for something to prove my citizenship. I
told him, “I’m in prison. Whatever I told you is all I can
give you. I gave you my social security number; my exwife is a permanent resident because of me [through
David’s U.S. citizenship]. All you have to do is go to the
immigration building.” I don’t think anyone did nothing
to find out. All they had to do is call to the [U.S.]
embassy in Mexico. I really don’t think he did a thing to
find this out.
David told Agent P. that in addition to the evidence of his citizenship
leading to his wife’s green card and on file with the Atlanta immigration
office, the U.S. consulate in Juarez would have on file the paperwork on
which it relied to issue him a consular card as a U.S. citizen when he was
fifteen.
A few months following this encounter, guards abducted David
during the night and without explanation took him from the low security
Coffee Prison to one that was close security.254 David was informed later
that he was being deported and issued a Notice to Appear (NTA) in
immigration court.255 The NTA stated he was being deported because he
had not been lawfully admitted into the United States. In order to thwart
this, David relied on his mother and sister to send his INS documents, so
that he could bring to INS’ attention the information from its own files
and prove his U.S. citizenship. In 2002, he sent these documents to the
Atlanta INS office. A year passed and he heard nothing. Still anxious to
be in a facility with nonviolent offenders and to clarify his citizenship,
David resent the documents in 2003. No one replied.
254

David served most of his time at Telfair State Prison, a closed facility for
adult male felons. See Telfair State Prison, GA. DEP’T OF CORRECTIONS,
http://www.dcor.state.ga.us/GDC/FacilityMap/html/telfair_state_prison.html
(last visited Feb. 22, 2011).
255
“Suddenly they picked me up in the middle of the night and said that I would
be transferred. They didn’t tell me where. Later they told me it was because of
an immigration hold. The prison officers came. That’s the way they do it when
someone is going to be transferred. I didn’t know what to think. I was trying to
find the reason. I thought I was going to another minimum security prison but
they sent me close security. I was afraid because it was dangerous, more
dangerous than Coffee [prison]. In the prison in Coffee there are only people
from three years and down. The majority are not aggravated assault, but there
for something simple. In close security you’ve got murderers, rapists, people
with life sentences, a lot of people with nothing to lose.” Telephone Interview
with David (Dec. 18, 2008).

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According to the warden of the minimum security facility that
transferred David, “[a]n immigration detainer would put someone into
heightened security.”256 Among the numerous due process violations
associated with SCAAP, there is no venue for appealing a
reclassification based on putative alien status.257 Absent a legal venue or
even procedure to correct the misclassification,258 David remained in a
maximum security prison. Had David been correctly classified as a U.S.
citizen he would have been eligible for parole because of his exemplary
record, the numerous classes he had taken, and the certificates he had
earned.259 However, under the terms of SCAAP, Georgia was receiving a

256

Telephone Interview with Warden, Coffee Prison (June 2008).
Id.
258
The Coffee Prison warden told me that the classification could not be
rectified unless “immigration contacts us and says they’re a citizen.” Id. David’s
INS warrant “commands” INS officers to “take the above-named alien into
custody for proceedings in accordance with the applicable provisions of the
immigration laws and regulations.” David’s warrant (Jan. 1999) (on file with
author). There is no legal process for having ICE change this designation prior
to being put into detention and waiting for an administrative hearing. See INA §
287, 8 U.S.C. § 1357 (2006). And yet in a separate case now pending, even after
acknowledging these policies in effect for the entire Bureau of Prisons, a federal
district court in Maryland denied David Johnson’s habeas challenge to his
misclassification (on two prior occasions immigration courts had terminated
deportation proceedings in response to his evidence of U.S. citizenship). See
Johnson v. Whitehead, No. 8:08-cv-01872-PJM, at 5 & n.10 (D. Md. May 14,
2009) (faulting the petitioner for not appealing to “either the Regional Office or
the Office of General Counsel [for the BOP]” and citing court precedent that
“we will not read futility or other exceptions into statutory exhaustion
requirements”). For David and Mr. Johnson’s situations, however, no statutory
appeal process even exists. Id. at 3 (“BOP policy dictates that inmates who are
not U.S. citizens shall have a ‘Deportable Alien’ Public Safety Factor (“PSF”)
applied. Petitioner’s PSF . . . could only be removed when officials at ICE or the
Executive Office for Immigration Review have determined that deportation
proceedings are unwarranted.”).
259
David received a letter dated May 1, 2005 and headed “Parole
Reconsideration.” The letter states: “A Fulton County Superior Court judge
recently signed an order ruling that the Parole Board’s 90% policy, adopted in
1997, was ‘implemented improperly and as a result is ineffective and has no
force or effect’ . . . . Receipt of this letter documents the Board’s intention to
reconsider your case without regard to its former 90% policy. The guidelines
recommendation in your case will be your guidelines grid score.” Letter from
Milton Nix, Chairman, Georgia State Board of Pardons and Paroles, to David
(May, 2005) (date omitted to preserve confidentiality) (on file with author). The
certificates David earned include his Diploma for General Educational
Development (GED), 1999; American Bible Academy, Certificate of
Completion for several books of the Bible, 2002; Certificate of Achievement,
Substance Abuse 101, 2001; Exodus Bible Correspondence School Certificate,
2001; Certificate for Industrial Machine Operator, 900 hours, 2002; Las
257

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per diem reimbursement from the federal government and in no hurry to
release him, per the Georgia agreement with the Department of Justice
on early release conditional on deportation.260
An official with the Georgia Parole Board confirmed that the Board
does not issue these orders before an inmate would be released without
the INS detainer:
If the parole board hearing in Georgia makes a decision
to grant parole, they don’t make it earlier than what it
would if they do not have an ICE detainer. . . . [We do
this only] if they’re parole eligible. Just because they
have an ICE detainer does not mean we will consider
them. We’re not granting them parole.261
Although the congressional intent was to save taxpayer money by
sending nonviolent offenders to their country of origin through early
parole, rather than housing them in minimum-security facilities, it
appears that so-called aliens were being held as long as or longer than
they might have been otherwise.262
Eight years into David’s ten-year sentence, after the Supreme Court
in Georgia had ruled that all inmates serving time for nonviolent crimes
had to be considered for parole after three years, he received a notice of
this Supreme Court decision and an “Order of Conditional Transfer to
Escuelas Fuente de Luz, correspondence course completion, 2002; and
Certificate of Achievement, Family Violence, 2005.
260
See Fact Sheet: ICE Rapid REPAT Program, IMMIGRATION & CUSTOMS
ENFORCEMENT, available at http://www.ice.gov/news/library/factsheets/rapidre
pat.htm (“On October 3, 2008, ICE and the State of Georgia signed an
agreement to implement the Rapid REPAT program, similar to the program
Georgia has had in place since 1995.”).
261
Telephone Interview with Official, Georgia Parole Board (July 7, 2008).
262
Per the terms of SCAAP, Georgia receives no reimbursements from the
federal government for the prisoners who are U.S. citizens, only those classified
as aliens. See Clark, supra note 238. A staff attorney with the Southern
California ACLU independently volunteered her impression that inmates
classified as aliens were serving longer prison terms than inmates denoted U.S.
citizens, although she was not familiar with the SCAAP. Telephone Interview
with Staff Attorney, ACLU (Dec. 2009). Governor Pete Wilson (R-Cal.) was
one of the major politicians pressing to initiate these reimbursements. Schuck &
Williams, supra note 7. Senator Diane Feinstein (D-Cal.) has pressed President
Obama to revise the federal budget for SCAAP upwards. Senate Judiciary
Approves SCAAP Reauthorization Bill 12, Bulletin 7, CAL. CAPITOL HILL BULL.
(Mar. 18, 2005), http://www.calinst.org/bulletins/b1207.htm#_1_1. President
Bush’s budgets, as did Obama’s in 2009, sought SCAAP’s elimination. Id.
Senator Feinstein and others overturned the recommendation and funded
SCAAP. Id.

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I.N.S., With Detainer.” The order, consistent with the 1994 Crime Bill
and the 1996 IIRIRA, states: “[t]his grant of executive clemency shall
permit the subject of this Order to depart the custody of the Georgia
Department of Corrections only for the purpose of entering into and
actually remaining in the confinement custody of the United States
Immigration and Naturalization Service pending deportation.”263 The
document effects commuting a sentence on condition of deportation: “all
sentences now being served by the subject of this Order are hereby
stayed and suspended pending the actual deportation of the subject of
this Order.”264 The Order does not contemplate the possibility that the
recipient of this Order is a U.S. citizen.265
After serving eight years in prison, David was transferred to ICE
custody in 2006 and taken in a van to the Etowah Detention Center in
Gadsden, Alabama:
I thought it was going to be two or three weeks. When I
was first in immigration I spent 3 months there. I went
to see this guy [an ICE officer], and he said, “Do you
want to be deported or see the judge?” I told him I was
American and wanted to see the judge. He told me,
“You’re not a U.S. citizen.” Then he opened it, what I
sent in 2002, and said, “Wow, you really are an
American citizen! What are you doing here?” He really
got surprised. “The reason is you never looked at the
papers,” I said. “You never paid attention to what I sent
you.” He said, “You’re going to have to see the judge.
You can tell the judge.”266
The adjudicator presiding over David’s case, William Cassidy, was in
Atlanta, Georgia, and David was supposed to appear for the hearing via
televideo.
Mr. Cassidy cancelled the hearing, and a guard told David it was
rescheduled for two weeks later:
263

PFO 04-77 Rev. 8/95 (Ga. State Bd. of Pardons & Paroles Dec. 2005) (on
file with author).
264
Id.
265
Id. The complexity and even contradictions within the rules controlling the
conditions of incarceration for U.S. citizens wrongfully classified as aliens as a
result of racial profiling and other misconduct are inconsistent with due process.
The legal violations David and his family experienced as a result of his initial
misclassification included: (1) undeserved time in maximum security; (2) an
apparent increase or no change in time served despite an order predicated on
“early release”; (3) the anxiety of facing deportation for ten years; and (4) years
of frustration over the lack of recourse to rectify a clearly erroneous
classification, even after having twice submitted the relevant documents.
266
See Telephone Interview with David, supra note 251.

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I didn’t have a problem to wait. I knew I was going to be
released. But they never went to pick me up. They told
me the guys who were going to pick me up didn’t know
where I was. They thought I was in another place. They
told me I was going to wait for another court date in two
months. I was not too desperate. I waited too long for
that moment. Two more months, it ain’t too much. After
two months they didn’t pick up again. I went to talk to
them again, and they told me the same thing. That’s
when I started getting desperate. They told me they were
giving me another date. One more month. By this time, I
talked to Mr. Rambana [David’s pro bono attorney]. He
told me, “Just send me the papers and I’m going to take
you out of there.”267
ICE told David it had scheduled a third hearing for him, a month away.
ICE, for a third time, failed to pick him up, but the hearing was held
telephonically in David’s absence and Mr. Rambana, David’s pro bono
attorney in Tallahassee, prevailed.
On August 31, 2006, five months after David was released into ICE
custody, Mr. Cassidy, the adjudicator who presided over hearings for
detained populations in Georgia and Alabama,268 terminated David’s
deportation order.269 Mr. Rambana assumed the matter was closed and
that David would be released.
That same day, back at the Etowah Detention Center in Alabama,
David remained in ICE custody. David explained:
Judge Cassidy terminated the proceedings. As far as
I know, they got 72 hours to let me out. I was looking at
the computer and that’s what they say. I went to talk to
an immigration officer, and she told me the judge
terminated my case because they didn’t take me to court,
not because he was accepting my American
267

Telephone Interview with David (Dec. 18, 2008). Rambana & Ricci is a law
firm on the pro bono list that the EOIR is required to make available to
respondents in detention centers. See Memorandum from David Neal, Chief
Immigration Judge, to All Immigration Judges, Guidelines for Facilitating Pro
Bono Legal Services 4 (Mar. 10, 2008).
268
Inspection of dockets at the Atlanta federal building; Interviews with
recently deported individuals, in Reynosa, Mexico (June 2009); Interview with
Tracey Blagec, Court Watcher, in Decatur, Ga. (Oct. 8, 2009); personal
observation of respondents in shackles and wearing “Etowah County” jumpsuits
for hearings in Mr. Cassidy’s court (Oct. 25, 2010).
269
Cassidy, Written Decision (June 2008) (referencing original August 2006
decision terminating the deportation order).

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citizenship.270 The next step was I had to start all over
again. I felt like I was kidnapped. I told them, release me
or deport me or do something. They said, “We cannot
deport you because it has to be the judge.” So I said,
“Then release me.”
I was sad, depressed, desperate. I found people who
were there for five years. One guy was from Africa.
They were [legal] residents, and not guilty of what they
were accused of. They were fighting their cases. I
thought I was going to spend a long time there.
David’s sister,271 also a U.S. citizen, confirmed David’s despondent
condition, and how he came close to signing a statement falsely swearing
that he was not a U.S. citizen:
They sent him to detention for immigrants. They said
either he signs or stays there. He wants to sign just to be
free. We said, “No, you don’t sign. You’ve already been
in there nine years. Just one more year. It’s not worth it
for you to sign.” Unfortunately we never had
any money for an attorney.272
David did what he could to obtain his release:
I wrote a letter to the judge and asked for a decision on
paper and told him I was going to look for some help.
He sent the papers to Mr. Rambana, and Mr. Rambana
released me, the same week. I sent the papers on
Monday and Friday I was released. But they didn’t
release me. I was downstairs with my street clothes on,
but they told me I had a hold from the Department of
Corrections, Georgia, so they sent me to a county jail. I
thought they just wanted to take my information, but no,
they just put me in jail, the same county jail for Friday,
Saturday, and Sunday. And then they take me to Atlanta.

270

The statement by the ICE deportation officer was simply false, most likely an
indication of poor training and lack of legal knowledge. In the fall of 2010,
people held by ICE in the Etowah County Jail continued to miss hearings
because they were not transported to the Atlanta federal building. Attorney
Statement to Judge Cassidy (Oct. 25, 2010) (notes from hearing on file with
author).
271
She resides in Los Angeles with her husband and children and spoke to me
during a break from her job as a dispatcher for a city agency in southern
California.
272
Telephone Interview with David’s older sister (2008).

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David inferred from the conversations he overheard that he was being
held with no obvious legal authority:
The jail in Georgia didn’t want to pick me up because I
didn’t have a charge. I was in a jail in downtown until 6
pm. They left me there in the waiting room, in intake. At
6 pm ICE picked me up again and put me in another jail,
Fulton. They were so strange. Everything was so
strange. When we got to Fulton County they didn’t want
to let me in. They told me the same thing. “You’re going
to get us in trouble. What is the charge?” [The ICE agent
said,] “I don’t know. He’s a got a hold.” “How come he
got a hold from Georgia Department of Corrections, but
he was already released?” When they put a hold it’s only
because you have a new charge. [The ICE agent] told
them he was going to pick me up the next morning.
They booked me like I broke parole. That’s what they
put in the computer, and I saw it. I spent three weeks in
Fulton County.273
I asked David how he felt when this was happening. He replied, “I
was feeling kidnapped.” The problem was that Georgia’s DOC had
released him into ICE custody on condition of deportation as an alien;
following the termination of this process, that order specifically
precluded paroling him, even though he was a U.S. citizen. The order is
written to comply with a regulation intended to use this for “early”
parole on condition of deportation. However, as the Georgia Parole
Board had indicated, David was not being paroled early,274 and the
guards at the jails that would not incarcerate him understood this. The
underlying problem was that by collapsing the enforcement of criminal
and immigration law, and failing to execute either properly or provide
due process protections, the government had led David into a maze laid
out according to the logic of Kafka’s Castle275 and the politics of Hitler’s
Nuremburg laws.276 If David had succumbed to ICE pressure, as other
U.S. citizens have done, he would have been shipped to Reynosa,
Mexico in early 2006, and the United States would have furthered the
implicit policy of SCAAP’s racial cleansing.277 David was falsely

273

David said the ICE agent in the van discussed how David ended up in this
situation: “On the road to Fulton, ICE tells me that Pete P. says that you told
him that you were illegal. ‘If I told him that, why didn’t he take my picture or
fingerprints?’”
274
See supra text accompanying notes 259–60.
275
FRANZ KAFKA, THE CASTLE (Oxford University Press 1998) (1926).
276
HILBERG, see supra note 128.
277
Rep. Steve King’s reference to the Mexicans entering the United States as a
“haystack of humanity” conveys the dehumanizing view of people of Mexican

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imprisoned for two years simply for insisting that his own government
recognize him as a citizen, regardless of his last name, place of birth, and
accent.278
Further complicating the plight of U.S. citizens in deportation
proceedings is that, unlike criminal law in which a trial judge or jury
verdict of not guilty is unreviewable, when the prosecution loses in
immigration courts, it may appeal within thirty days.279 The prosecution
appealed in five of the FIRRP cases in which judges months later
affirmed the termination orders.280 ICE filed such an appeal in David’s
case. On September 29, 2006, twenty-nine days after Cassidy had
terminated David’s deportation order, ICE prosecutor Renae Hansell in
Atlanta, Georgia filed an unsigned and undated appeal281 and, most
importantly, did not send a copy of the appeal to David’s attorney.282
ancestry consistent with a commitment to sweeping this haystack, so to speak,
out of the country.
278
An additional complication is David’s parole board records following his
return to prison. They make no sense. DOC employees confirmed this when I
made inquiries in telephone interviews. Also, his sister told me that each time
she made what she believed were arrangements that met the criteria for his
release, the probation officers gave her objections that they themselves admitted
were idiosyncratic. They told her, “‘It [the rules for his release] depends on
what officer you get.’ And that’s when I said, ‘No, this does not depend on what
officer I get, but on the law. No matter who I talk to, I should get the same
answer.’” Interview with David’s sister, supra note 272.
279
8 C.F.R. § 1003.38 (2010).
280
See Komis Interview, supra note 51. Based on interviews with FIRRP and
other immigration attorneys, this number underestimates the rate of ICE
prosecutor appeals because it does not account for the respondents who rescind
their claims to U.S. citizenship instead of remaining locked up as David was.
The EOIR recordings I used to verify the outcomes would indicate that these
“aliens” had been ordered deported, not that they were cases that had been
terminated. If the ICE prosecutor appealed a decision terminating a deportation
order and the individual decided not to challenge the appeal, that case would not
appear among the 82 cases of individuals whose deportations had been
terminated due to U.S. citizenship. Therefore, there would be no record that ICE
had filed an appeal of an order terminating U.S. deportation on grounds of U.S.
citizenship. For evidence of ICE trial attorneys extorting false confessions
among respondents locked up in southern Arizona, see, for example, Jacqueline
Stevens, Kidnapped Canadian, IMMIGRATION DAILY (Oct. 14, 2010), available
at http://www.ilw.com/articles/2010,1014-stevens.shtm. See also United States
v. Wilson, 420 U.S. 332, 352 (1975) (“[P]olicies underlying the Double
Jeopardy Clause militate against permitting the Government to appeal after a
verdict of acquittal.”).
281
See infra note 285.
282
Telephone Interview with Neil Rambana, Pro Bono Attorney, Rambana &
Ricci (June 12, 2008). David’s EOIR file confirms the absence of a certificate of
service that would have been present in David’s file if DHS had sent either of
them a copy of the appeal.

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The Georgia DOC, however, had David back in its custody. Between
September 2006 and May 12, 2008, David was shuffled around several
Georgia prisons without notice given to his attorney.283 David did not
know if he was being falsely imprisoned because of the Georgia DOC284
or because of ICE. All he knew was that in 2005 he received a notice
from the Georgia DOC that he was eligible for parole; in 2006, an
adjudicator ruled David was indeed a U.S. citizen, and that he should be
back with his family in Texas.
The undated, unsigned appeal that, according to the Board of
Immigration Appeals (BIA), Ms. Hansell filed on September 29, 2006,285
makes several false assertions, including David’s alleged statement that
he had illegally entered the United States.286 The BIA remanded the case
because EOIR adjudicator Mr. Cassidy did not record the hearing, and
because he did not issue a written decision stating the reasons for
terminating the deportation order.287 The BIA decision incorrectly
indicated that David was pro se.288 Eventually, almost two years after he
thought his client had been released from custody, Mr. Rambana learned
that David was still in prison and that ICE had scheduled a new hearing
for him to be deported. In 2008, EOIR adjudicator Mr. Cassidy, a former
ICE attorney, altered the timeline of events so that it appeared his first
decision was given in 2008 and not 2006.289 This alteration made legally
invisible the interim of the appeal and the ICE attorney’s unlawful
failure to send Mr. Rambana a copy of the appeal. ICE’s zealous efforts
to deport David concluded after the ICE attorney withdrew her appeal
283

Records on file with author. See also Interview with David, supra note 251.
The Georgia DOC employees familiar with David’s record seemed confused
about the reason for his reclassification in the prison. David said one
explanation was that he had been classified as a sex offender and needed to
meet certain residency criteria before he could be released. However, not only
did the Executive Director of the state’s Sex Offender Registry inform me that
the GA DOC had not sent David’s record to her office, but the Georgia State
Supreme Court had overturned these requirements in 2007. Telephone
Interview, Director of Georgia State Sex Offender Registry (2008) (notes on file
with author).
285
This is the date indicated by the Board of Immigration Appeals’ one-member
decision in March 2008, but there is no underlying evidence for this. See supra
note 251.
286
Id.
287
See Cassidy, Written Decision (June 2008) (on file with author).
288
See supra note 251.
289
In June, 2008, another ruling by Mr. Cassidy mentioned his initial order, but
post-dated this from August 31, 2006 to May 13, 2008, legally obliterating the
extended period of David’s unauthorized incarceration in the custody of ICE, an
agency that includes Mr. Cassidy’s former colleagues from his time as an
immigration prosecutor. See Judge William A. Cassidy, TRAC IMMIGRATION
REPORTS, http://trac.syr.edu/immigration/reports/judgereports/00004ATL/index.
html (last visited Feb. 22, 2011).
284

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following a professor’s inquiries to ICE and EOIR and blog posts
describing these events.290 Despite his U.S. citizenship at birth and a
prison record warranting parole in 2005, if not earlier, David was forced
to serve every minute of his ten-year prison sentence, and was not
released until November 2008.291
2. Mark Daniel Lyttle
Mark Lyttle was born in 1977 in Rowan County, North Carolina,
and is therefore a U.S. citizen by birth.292 There is no evidence that his
biological parents have ties to Mexico and his adoptive parents
demonstrably have none. Mr. Lyttle speaks no Spanish. Yet on
December 19, 2008, Mr. Lyttle was flown in handcuffs and shackles on
a Justice Prisoner Air Transport plane, dropped off in Hidalgo, Texas
with only the green prison outfit he had on when ICE picked him up six
weeks earlier in North Carolina, and told to leave his country and walk
across a bridge to Reynosa, Mexico.293 The only identification he had
was a deportation order for “Jose Thomas.”294 This event was the
culmination of numerous acts of misconduct and due process violations
on the part of law enforcement officials and an EOIR adjudicator. In
addition to these defects of administrative law enforcement, a subsequent
threat of imprisonment for violating immigration laws meant that Mr.
290

The motion provides no reason for ICE withdrawing its appeal. (Motion on
file with author; full citation would disclose confidential information.) ICE
attorney Renae Hansell, in Atlanta, did not reply to telephone messages I left in
June, 2008 requesting further information on her decision to withdraw the
government’s appeal of Cassidy’s order terminating David’s deportation.
291
At the time ICE withdrew its appeal, three months remained on David’s
reinstated ten-year prison sentence. A Georgia probation officer said that they
would not bother with a new review. Telephone Interview with Georgia DOC
Parole Officer (Sept. 2008).
292
This account is based on interviews on the phone and in person with Mark
Lyttle, Neil Rambana, the pro bono attorney representing Mr. Lyttle after ICE
arrested Mr. Lyttle in the Atlanta airport, and Mr. Lyttle’s DHS and EOIR files.
Government violations include false sworn statements by ICE agents,
misconduct in failing to follow the procedures for verifying claims to U.S.
citizenship as specified by memoranda issued by James Hayes, Jr., see Hayes
Memo I and Hayes Memo II, supra note 41, and the EOIR adjudicator’s failure
to follow the rules for conducting hearings detailed in the Immigration Judge
Benchbook, see EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, IMMIGRATION
JUDGE BENCHBOOK (2007), available at http://www.justice.gov/eoir/vll/benchb
ook, as well as violation of the procedures in 8 C.F.R. § 235.3(b)(5) (2010).
293
For further details, see Jacqueline Stevens, STATES WITHOUT NATIONS
BLOG, http://www.stateswithoutnations.blogspot.com (follow “Mark Lyttle”
hyperlink).
294
This was the name an ICE agent at the Neuse Correctional Institution in
Goldsboro, North Carolina wrote on Mr. Lyttle’s scratch I-213, and it appears
on many but not all of the documents in Mr. Lyttle’s “alien file.”

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Lyttle was denied any opportunity to rectify his deportation through the
agencies that deported him. When he attempted to return, Border Patrol
agents told him another effort would land him in prison. As a result of
the threat of prison time, Mr. Lyttle said he spent four and a half months
in shelters, immigration camps, and a jail in Mexico, Honduras,
Nicaragua, El Salvador, and Guatemala.295
Shortly after arriving in Reynosa, Mr. Lyttle crossed the bridge
spanning the Rio Grande and tried to return home. On the first occasion,
December 22, 2008, he explained what had happened to the Border
Patrol agents,296 but they told him that he was in their records as a
deported alien and needed to turn around and go back to Mexico. On the
second occasion, December 29, 2008, the guards issued an Expedited
Removal Order stating, “[Y]ou falsely represented yourself to be a
United States citizen for the following purpose or benefit: to attempt to
enter the United States without valid entry documents.”297 The Expedited
Removal Order also includes, as part of the form, a warning stating that
false representation under 8 U.S.C. § 1326 is a crime for which one may
be imprisoned up to twenty years and fined up to $250,000.298
Thereafter, Mr. Lyttle believed that if he attempted to tell government
officials he was a U.S. citizen, he would be sent to prison. Missionaries
at Christian shelters advised Mr. Lyttle to seek assistance at the U.S.
embassy in Mexico City, but Mr. Lyttle did not believe they understood
his situation.
Subsequent encounters confirmed his fears. Following inquiries
from the Honduran immigration authorities, the U.S. Embassy in
Tegucigalpa, Honduras refused to make inquiries of Mr. Lyttle’s family,
and so the Honduran immigration authorities sent Mr. Lyttle to an
immigration camp and from there to a jail near Nicaragua.299 Several
months later, after Mr. Lyttle obtained a U.S. passport based on the
efforts of a consular official who called his family and said his

295

See sources cited supra note 292.
Telephone interviews with Mark Lyttle (Apr.–June 2009) (notes on file with
author); see also Lyttle’s Customs and Border Protection records (on file with
author).
297
Id.
298
Id. Mr. Lyttle was held in a cell and then picked up by a van driven by an
employee of the Mexican government and dropped off in Reynosa. Forms were
filled out characterizing the encounter, but without his signature. Id. The forms
state that he refused to sign the forms. Mr. Lyttle states that he never refused to
sign any forms and that he was not asked to sign them. Id.
299
See sources cited supra note 292; Interview with Oscar and his supervisor,
Honduran Immigration Officials, in San Pedro Sula, Honduras (June 30, 2008);
Telephone Interview with immigration official, in Tegucigalpa, Honduras (June
30, 2008); Honduran Immigration Record for “Jose Thomas” (Mar. 3, 2008).
296

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citizenship claims were “easy” to confirm,300 Mr. Lyttle was detained in
the Atlanta airport en route to his brother, a soldier based in Kentucky.
On April 23, 2008, ICE issued a third Expedited Removal order, even
though a U.S. passport is conclusive proof of U.S. citizenship unless it is
obviously invalid.301 Neither the ICE agents nor the ICE Desk Attorney
in the Atlanta Field Office returned phone calls made by a pro bono
attorney recently procured by Mr. Lyttle’s brother.302 Were it not for
inquiries by a researcher and phone calls from an ICE agent in
Washington, D.C. on Mr. Lyttle’s behalf, the April 23, 2009 Final
Departure Order indicates that he would have been flown back to
Mexico.303 On October 13, 2010, the American Civil Liberties Union
and the law firm Troutman Sanders filed lawsuits on Mr. Lyttle’s behalf
against the state and federal agencies and individuals responsible for
these events.304

300

Interview with Maria Alvarado, Vice-Consul, U.S. Embassy, in Guatemala
City, Guatemala (July 1, 2009).
301
Matter of Villanueva, 19 I. & N. Dec. 101, 102 (B.I.A. 1984).
302
Telephone Interview with Neil Rambana, Mr. Lyttle’s Attorney, Rambana &
Ricci (June 23, 2009).
303
See supra notes 114, 292; Telephone Interview with Barbara Gonzalez,
Public Affairs Officer, ICE (Apr. 26, 2009); Jacqueline Stevens, U.S. Citizen
Deported to Mexico, Shipped to Guatemala, Now Held in Jail, STATES
WITHOUT NATIONS BLOG (Apr. 23, 2009, 12:33 PM); Jacqueline Stevens, U.S.
Kidnaps Mark Lyttle, Leaves Him Stateless in Mexico, Honduras, Nicaragua,
Guatemala, STATES WITHOUT NATIONS BLOG (Apr. 24, 2009).
304
According to the Director of the National Security/Immigrants’ Rights
Project at the ACLU of Georgia, Azadeh Shahshahani, “Mr. Lyttle’s disabilities
were obvious and well documented but the government offered him no legal
assistance and worse still, failed to even perform the normal verification
procedures on his legal status . . . . No reasonable basis existed to suspect that
Mr. Lyttle was not a United States citizen.” Press Release, American Civil
Liberties Union, ACLU Files Lawsuits After Government Wrongfully Deports
U.S. Citizen With Mental Disabilities (Oct. 13, 2010), available at
http://www.aclu.org/immigrants-rights/aclu-files-lawsuits-after-governmentwrongfully-deports-us-citizen-mental-disabili. Another case on behalf of a U.S.
citizen with cognitive disabilities who was born in Los Angeles and deported to
Mexico in 2007 settled on May 4, 2010 after the U.S. government agreed to pay
$350,000 to Mr. Guzman and his mother, Maria Carbajal. Guzman v. Chertoff,
No. CV08-01327 GHK (C.D. Cal. May 4, 2010) (order granting settlement). On
January 7, 2011, attorney Elliott Ozment filed a lawsuit against law enforcement
agents and agencies in Davidson County and Nashville, Tennessee, alleging
false imprisonment and other civil rights violations committed against his client
Daniel Renteria-Villegas, who was held for almost two weeks as an illegal
alien, despite the fact that he was born in Portland, Oregon. Renteria v. Hall
(Tenn. Ch. filed Jan. 7, 2011).

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D. U.S. CITIZENS IMPRISONED FOR IMMIGRATION CRIMES
Prison is not only a site where U.S. citizens are identified for
deportation as aliens, but also a place where U.S. citizens may return
after being wrongfully convicted of violating federal immigration
laws,305 crimes for which U.S. citizenship is a conclusive defense.306
Moreover, the threat of such a conviction is sufficient to incentivize false
confessions of alienage at the border for returning U.S. citizens who may
not have been deported,307 and also leads deported citizens not to press
legally valid claims to return to their homes.308 Deported U.S. citizens
who attempt to return to their rightful homes have been charged,
convicted, and served years in prison for Illegal Reentry (8 U.S.C. §
1326)309 and Personation of a U.S. Citizen (18 U.S.C. § 911),310 both
crimes predicated on alienage.311 The fortunate ones among this group
have been able to subsequently prove their citizenship and obtain their
release.312 For others, their administrative records are incorrectly equated
with the underlying truth of their legal status, from which judges,
including appellate court judges, incorrectly infer alienage.313 The
305

See 8 U.S.C. § 1326 (2006) (determining penalties for an alien who reenters
the United States); 18 U.S.C. § 911 (2006); 8 U.S.C. § 1182 (2006). Decisions
reached in the absence of due process protections designed to protect U.S.
citizens from government misconduct provide the basis for these subsequent
criminal convictions, despite precedents which prohibit conclusions reached in
administrative proceedings to be used as irrebuttable evidence in criminal
proceedings. See also United States v. Mendoza-Lopez, 481 U.S 828, 839
(1987) (“[A] collateral challenge to the use of a deportation proceeding as an
element of a criminal offense must be permitted where the deportation
proceeding effectively eliminates the right of the alien to obtain judicial
review.”).
306
See infra text accompanying notes 327–28.
307
See, e.g., supra text accompanying note 224; see also Susan Carroll, Houston
Native Wrongly Deported, HOUS. CHRON., Sept. 13, 2010, available at
http://www.chron.com/disp/story.mpl/special/immigration/7199653.html; Susan
Carroll, Deported Man May Be Houston-born Citizen: Border Patrol Doubted
His Papers Because He Speaks Very Little English, HOUS. CHRON., June 23,
2010, available at http://www.chron.com/disp/story.mpl/metropolitan/7077166.
html (“He said he was detained from 4 p.m. to midnight and pressured to sign
paperwork that resulted in his being sent to Matamoros. ‘The official that was
holding me told me I had to sign them . . . or I would have to stay there,’
Delgado said. ‘I thought if I signed them, they’d let me go free, and I could
return to Houston’ . . . .”).
308
All the individuals whose deportations are reflected in Table 5 at some point
signed documents indicating that they were not U.S. citizens, for the reasons
indicated therein.
309
See supra Table 5.
310
Id.
311
Id.
312
Id.
313
See cases cited infra note 337.

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appearance of U.S. citizens charged with immigration violations in
federal courts in border states may be best explained by detailed review
of two case studies. In one, a U.S. citizen served seven years in prison
for Illegal Reentry. In another, Border Patrol agents deterred a
wrongfully deported U.S. citizen from returning to the U.S. by
threatening him with prison time if he persisted in his accurate claim to
U.S. citizenship.314
Once U.S. citizens have been deported, it is extremely difficult to
receive a fair hearing about their claims. Border Patrol agents rely on the
classifications from the deportation orders and treat U.S. citizens seeking
admission to their country as criminal aliens. The following case studies
illustrate the serious harms caused by laws designed and implemented
without due process considerations.
1. Mario Guerrero
Mario Guerrero was born in Mexico in 1964.315 He acquired U.S.
citizenship at birth.316 When Mr. Guerrero was a teenager, he moved
with his family to San Diego. He initially believed that he and his
siblings were legal permanent residents, not U.S. citizens.317 In 1993, he
was arrested for robbery and in 1995, under the terms of the 1994 Crime
Bill, he was issued a deportation notice and placed into removal
proceedings. Mr. Guerrero lacked funds to hire an attorney. During this
process Mr. Guerrero met with several INS agents and appeared before
an EOIR adjudicator. At no point did any employee of the U.S.
government inquire about his biography to ascertain whether he might

314

As noted above, see supra note 292, the regulation for implementing
expedited removal orders to those claiming U.S. citizenship, 8 C.F.R. §
235.3(b)(5), requires law enforcement officers to refer these so-called aliens to
immigration court, and yet this requirement has been demonstrably violated.
Any law authorizing the deprivation of the rights of U.S. citizenship from those
who are indeed U.S. citizens is not regulating immigration, but rather
unconstitutionally depriving U.S. citizens of their fundamental rights.
315
The account of Mr. Guerrero’s experiences is based on court records
available on PACER and telephone interviews with Mr. Guerrero and his sister
in May 2009.
316
Mario’s father, a U.S. citizen, was married to Mario’s mother at the time
Mario was born and met the other criteria for conferring U.S. citizenship on his
children. In February 2007, based on evidence of these facts, the USCIS issued
Mario a Certificate of U.S. Citizenship and the U.S. government moved to
dismiss a second charge of Illegal Reentry.
317
In his twenties, Mr. Guerrero and his siblings informally discussed the
possibility that they were U.S. citizens, but Mr. Guerrero gave up on this
possibility after he was first deported: “If an immigration judge tells you you’re
not a U.S. citizen, then I believe that.” Telephone Interview with Mario
Guerrero (May 11, 2009).

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meet the criteria for U.S. citizenship.318 Mr. Guerrero understood he had
the right to appeal the deportation order, but facing another year “in
jail,”319 with no possibility of bail, he decided against this route and
signed the papers that would trigger his banishment to Mexico.320
Mr. Guerrero’s deportation order triggered not only his physical
removal from the United States, but eventually set into motion a prison
sentence. On April 18, 1998, Mr. Guerrero was charged with illegal
reentry (8 U.S.C. § 1326) and false personation of a U.S. citizen (18
U.S.C. § 911).321 When Mr. Guerrero told the border agent in San Ysidro
on April 18, 1998 that he was a U.S. citizen, Mr. Guerrero at that point
did not believe this to be true. He agreed to plead guilty, but after
speaking with other inmates in San Diego, he realized he was in fact a
U.S. citizen and changed his plea to “not guilty.” Knowing that his U.S.
citizenship was conclusive evidence of innocence, he turned down a
guilty plea deal offer that would have resulted in a sentence of two years
and six months. However, District Court Judge Irma Gonzalez granted
the prosecution motion “precluding defendant from challenging the
lawfulness of prior deportations.”322
On July 20, 1998, the day before the trial, the prosecution sent a
memorandum to the judge summarizing an interview with Mr.
Guerrero’s father.323 The memorandum incorrectly concluded that Mr.
318

Mr. Guerrero said, “I didn’t know I was a U.S. citizen. They didn’t explain
nothing [sic] to me. It was real quick. I just signed some papers.” Id.
319
This is the phrase Mr. Guerrero used. The federal government refers to its
custody of individuals in deportation proceedings as “detention,” but the socalled detainees often come from other institutions where they have been
physically confined by other branches of law enforcement and experience the
forms of custody as similar. Moreover, ICE subcontracts to over 300 state,
local, and private prisons and jails. See IGSA FACILITIES USED BY ICE IN
FY2010, available at http://www.ice.gov/doclib/foia/isa/igsafacilitylistasof0301
2010.pdf.
320
Mr. Guerrero explained, “I already did some time, and when I was getting
out they told me, ‘You fight deportation or you sign the paper. If you don’t sign,
you might spend a year here.’ All I wanted to do is get out because I already
spent a year. I signed the paper and I got out. They told me I was giving up my
rights but nothing was for sure. I could spend another year in jail or get out.”
Telephone Interview with Mario Guerrero (May 11, 2009).
321
Mr. Guerrero missed his family and tried on three occasions to blend in with
the crowds at San Ysidro and reenter. Each time he was accosted and his efforts
recorded and rebuffed. On the third occasion he was arrested and taken into
custody. Telephone Interview with Mario Guerrero (May 11, 2009); see also
United States v. Guerrero-Cruz, No. 98CR1406-IEG, slip op. (S.D. Cal. July 13,
2008).
322
Guerrero-Cruz, No. 98CR1406-IEG, at 1.
323
Memorandum from Daniel Butcher, Assistant U.S. Att’y, to Judge Irma
Gonzalez (July 20, 1998).

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Guerrero did not meet the criteria for acquired citizenship.324 However,
on the day of the trial, the prosecution moved to dismiss the charge of
false personation of a citizen.325 The judge did not revise her ruling, and
Mr. Guerrero was not allowed to present his claims to U.S.
citizenship,326 although this would be a conclusive defense against an 8
U.S.C. § 1326 charge. The jury found him guilty, and Judge Gonzalez
sentenced Mr. Guerrero to seven years and five months in federal prison
for illegal reentry.327
At some point during his prison sentence, which he was serving in
Texas, Mr. Guerrero was again served a deportation order. Through the
Institutional Hearing Program, an administrative hearing was conducted
at a room in the Texas prison where, Mr. Guerrero estimated, about
twenty-four other individuals also had their cases decided:
No, [the adjudicator] never addressed me individually.
There was no lawyer, no nothing. He was just reading
the thing that we were getting deported. He talked some
stuff. I don’t remember what he said. He just talked for
10 to 20 minutes. They just figured I was deported
before, so they just say we’re going to deport him again.
I didn’t do no talking, no nothing. I just had to be there
324

Id.
Guerrero-Cruz, No. 98CR1406-IEG, at 22.
326
A member of the jury stated that at no point was the jury informed that Mr.
Guerrero might be a U.S. citizen. On discovering that Mr. Guerrero was indeed
a U.S. citizen who, based on the immigration crime conviction, had served
seven years in prison, the juror, a photojournalist concerned about civil liberties,
was upset: “Had I been a juror on a case where there was even some possibility
that this person was [a] U.S. citizen I would not have gone along with the
others. As a U.S. citizen you value that, and to find out that some other citizen is
being deported and is not being provided due process is deeply disturbing.”
Telephone Interview with Guerrero juror (June 2009).
327
Mr. Guerrero’s public defender disputed the district court judge’s
interpretation of sentencing guidelines and filed an appeal with the Ninth
Circuit, stating that the initial robbery conviction did not warrant the length of
the prison sentence for his § 1326 conviction. United States v. Guerrero, No. 9850685, 1999 U.S. App. LEXIS 32233 (9th Cir. Sept. 15, 1999). Mr. Guerrero
said that upon learning he lost the appeal, which he mistakenly believed was
based on his U.S. citizenship, “I cried.” Mr. Guerrero served most of his
sentence in Texas prisons, over 1,000 miles from his family in southern
California. At Big Spring Correctional Center in Texas, Mr. Guerrero was bitten
by a rattlesnake during a recreation period. He stated that “They didn’t do
anything right away. A couple hours later, I’m in pain, my arm is about to
explode, and they sent me to a hospital. I stayed there for about a week. They
didn’t do nothing to my finger, just gave me morphine for the pain. My finger
was turning black and starting to smell bad. They cut it off, the index finger for
my right hand, and I am right handed. It was costing me my finger there in jail.”
325

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in a little room, and then they took me back to my cell
and that was it.
After serving his prison sentence, Mr. Guerrero was driven in a
minibus to a pedestrian crossing in Texas to Juarez, Mexico and told to
walk across the bridge. He stayed in Juarez for about a year and a half,
doing construction work, and then tried to return. On January 30, 2006,
Mr. Guerrero was apprehended as he tried to return from Tijuana, and
was again charged with Illegal Reentry:
This time I had a real good lawyer. This lady, she
investigated real good and she proved [U.S. citizenship]
by my grandmother being married in Tucson, and [my
father] always coming across. She fought the case and
won. I spent another year in jail while she was fighting
the case. My dad came up with evidence that he’s been
living in the U.S. before we were born by all kinds of
research. This lawyer did a real good job.328

While Mr. Guerrero was awaiting trial, his Certificate of U.S.
Citizenship arrived and the prosecution moved to dismiss the charges on
February 7, 2007, after Mr. Guerrero had spent more than a quarter of
his life in prison for crimes he never committed.
Had Mr. Guerrero been more assertive about his belief that he was a
U.S. citizen when he was in prison in 1995, he may have been able to
avert this chain of events. However, his confusion does not mean that he
was at fault for the deportation, much less that it was valid.329 The BIA
has even gone so far as to rule that if a foreign-born individual were not
aware of a claim to citizenship, a residency requirement in effect at that
time should be waived and the respondent given a “reasonable
opportunity to come to the United States as a citizen after learning of his
claim to citizenship.”330

328

Elizabeth Barros, Federal Defenders, Inc., San Diego, was Mr. Guerrero’s
attorney. United States v. Guerrero-Cruz, No. 98-50685, 1999 U.S. App. LEXIS
32233 (9th Cir. Sept. 15, 1999).
329
“While performing their duties, U.S. Immigration and Customs Enforcement
(ICE) officers, agents, and attorneys, may encounter aliens who are not certain
of their status or claim to be United States citizens (USC) . . . . As a matter of
law, ICE cannot assert its civil immigration enforcement authority to arrest
and/or detain a USC. Consequently, investigations into an individual’s claim to
U.S. citizenship should be prioritized . . . .” Morton Memo, supra note 41, at 1.
330
Wooster, supra note 102, at 23 (summarizing Matter of Yanez-Carrillo, 10 I.
& N. Dec. 366 (B.I.A. 1963)). There are rulings against respondents in similar

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Mr. Guerrero’s ignorance of his own status and rights as a U.S.
citizen resulted in part from the deportation proceedings themselves.
This compounds the injustices visited on him by his government at birth.
Neither the U.S. Constitution nor Congress authorizes depriving U.S.
citizens of their citizenship because of an incorrect classification by an
immigration agent. Moreover, in similar cases of citizenship at birth
acquired or derived by those whose parents appear to be of European
descent,331 these confusions seem to appear less frequently.332 It is the
presumption of U.S. citizenship on the part of those born abroad to U.S.born parents who seem White, and the presumption of foreign
citizenship for similarly situated children of U.S. parents who are
racialized as non-White that resulted in Mr. Guerrero’s ignorance, not of
his roots—he knew the identities, biographies, and citizenship status of
his parents—but of their significance to his own citizenship. This is not a
result of vague, internalized stereotypes but of legal errors on the part of
immigration officials who should have realized when Mr. Guerrero’s
father brought his children to the United States that individuals with
histories such as Mr. Guerrero’s are U.S. citizens and are eligible for
U.S. passports, not green cards.333
situations as well. See, e.g., Ramos-Hernandez v. INS, 566 F.2d 638 (9th Cir.
1977).
331
The history of origins and the inherent hybridity of each individual as well as
race, nation, ethnicity and so forth mean that this is an illogical typology.
However, phenomenologically there are certain racialized differences triggered
by and prompting political membership policies. For more on the origin and
practice of race, see JACQUELINE STEVENS, REPRODUCING THE STATE 172–208
(1999).
332
For instance, President Barack Obama was born in the United States, yet his
father’s Kenyan origins put into question his citizenship. See Dobbs Repeatedly
Makes Obama Birth Certificate Claims His CNN Colleagues Call ‘Total Bull,’
MEDIA MATTERS (July 17, 2009, 7:26 PM), http://mediamatters.org/research/20
0907170039. Lou Dobbs did not subject Senator John McCain, born in Panama,
to questions about whether he was a natural born U.S. citizen, even though
McCain is “foreign-born” and therefore without the legal presumption of U.S.
citizenship. Id.
333
The U.S. citizens deported who did not know they were U.S. citizens, see
supra Table 6, and many of the U.S. citizens who have been imprisoned
pending determination of their legal status by an EOIR adjudicator were
screened as children by U.S. immigration agents, who mistakenly issued green
cards for them and instructed their parents that they were legal permanent
residents. In an appeal of a decision terminating a deportation order on the
grounds of U.S. citizenship, the government referenced its previous error
(granting the respondent’s mother legal residency and not informing her of her
U.S. citizenship) to imply the adjudicator who had reviewed various legal
documents and interviewed family members under oath was mistaken: “The fact
that the USCIS issued the respondent’s mother a Certificate of Naturalization
and not a Certificate of Citizenship is further evidence that the respondent’s
mother did not acquire United States citizenship at birth.” Brief for Appellant at

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V. U.S. CITIZENS PERMANENTLY DENIED U.S. CITIZENSHIP
That thousands of U.S. citizens have been detained, deported, or
convicted of immigration crimes predicated on alienage before the
government recognizes their citizenship status is a gross miscarriage of
justice. These cases might be considered “false negatives,” i.e., legally
authenticated U.S. citizens falsely identified as noncitizens. But even
worse are the unknown number of cases in which narratives very close to
the ones above take a different turn and the individuals are wrongfully
denied recognition of their U.S. citizenship for years,334 or perhaps
forever. These cases largely involve individuals born abroad and raised
since infancy or childhood in households in the United States by at least
one parent who is a U.S. citizen.335
Recent Ninth Circuit appellate court decisions in the last decade
appear to have foreclosed the opportunity to present evidence of U.S.
citizenship in some cases by individuals who very well may be U.S.
18, In re Jorge Ibarra-Lopez (B.I.A. May 5, 2011). The respondent’s reply brief
states: “The DHS points to absolutely no case law, statute, or regulation in
support of its suggestion that admission on an immigrant visa or a subsequent
naturalization casts doubt on whether an individual previously acquired
citizenship; indeed, hundreds if not thousands of U.S. citizens file for a
certificate of citizenship despite previously having been admitted on an
immigrant visa.” Reply Brief for Respondent at 8, In re Jorge Ibarra-Lopez
(B.I.A. May 18, 2011).
334
For instance, an EOIR adjudicator at Eloy unlawfully deported Mr. Johann
Francis in 1999. Until 2009, he was unable to obtain the Jamaican birth
certificate he needed to obtain a U.S. passport. From 1999 to 2009, he was a
U.S. citizen but would appear in a study such as this as a noncitizen; he remains
classified as a noncitizen in ICE and EOIR databases. See Interview with
Johann Francis, supra note 191.
335
The U.S. Census states that as of 2008, 16.33 million U.S. citizens were born
abroad and naturalized. Table 44 Foreign-Born Population by Citizenship
Status and Place of Birth: 2008, U.S. CENSUS, www.census.gov/compendia/stat
ab/2010/tables/10s0044.xls. A 2000 Census survey based on a sample indicates
that an additional 1.92 million individuals acquired U.S. citizenship at birth
because they were born to U.S. citizens abroad. U.S. CENSUS, PLACE OF BIRTH
BY CITIZENSHIP STATUS (2000) (on file with author). In light of the
demonstrated underestimates of Latino populations by census-takers, and the
fact that many people do not understand their citizenship status, this number is
useful only as a benchmark for the minimum number of people who have
acquired U.S. citizenship from being born abroad to a U.S. citizen. Another
census report indicates there are 208,000 foreign-born children of native-born
parents, of whom 177,000 are married, and a total of six million foreign-born
children living in the United States. Living Arrangements of Children Under 18
Years/1 and Marital Status of Parents, by Age, Sex, Race, and Hispanic
Origin/2 and Selected Characteristics of the Child for All Children: 2009, U.S.
CENSUS, http://www.census.gov/population/www/socdemo/hh-fam/cps2009.ht
ml.

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citizens.336 The petitioners or criminal defendants, the former often pro
se, are challenging deportation orders or felony immigration charges,
respectively, on the grounds of U.S. citizenship. The government and
district court judges in some instances have taken the position that
respondents’ failure either to assert this position in administrative
proceedings or to prevail in administrative proceedings precluded filing
a habeas motion or presenting a U.S. citizenship defense in a criminal
trial.337 The fact patterns in these cases are virtually identical to those of
336

The decisions by the appellate and district court in adjudicating Herbert
Flores-Torres’s claim to U.S. citizenship are a welcome sign that the federal
courts in California are realizing the EOIR decisions may be legally flawed. See
infra note 352.
337
See Taniguchi v. Schultz, 303 F.3d 950, 956 (9th Cir. 2002) (holding that
“Taniguchi failed to exhaust her administrative remedies by not appealing the
decision of the IJ to the BIA . . . . ‘A court may review a final order of removal
only if . . . the alien has exhausted all administrative remedies available to the
alien . . . .’ 8 U.S.C. § 1252(d)(1) (2006); see also Castro-Cortez v. INS, 239
F.3d 1037, 1044 (9th Cir. 2001). Second, even if the IJ’s decision could be
considered the final order of removal for purposes of § 1252(b), a petition for
review would have been untimely as of the date the habeas corpus petition was
filed, October 20, 1999. The IJ’s order was filed April 13, 1999. A petition for
review, to be timely, must be filed not later than 30 days after the date of the
final order of removal. 8 U.S.C. § 1252(b)(1) (2006). Thus the petition would
have been untimely and there would be no basis for transferring the case to the
court of appeals, because the court of appeals would not have been able to
exercise jurisdiction on the date that the petition for habeas corpus was filed
with the district court”); United States v. Gomez-Moreno, 221 Fed. App’x 524,
527 (9th Cir. 2007) (upholding conviction under 8 U.S.C. § 1326(a) over the
defendant’s assertion that the adjudicator misrepresented the record and despite
the court finding that “[t]he prosecutor engaged in some misconduct”); United
States v. Silva-Gonzalez, 171 Fed. App’x 702, 703 (9th Cir. 2006) (“Thus, a
trial judge may exclude or limit evidence to prevent excessive consumption of
time, undue prejudice, confusion of the issues, or misleading the jury.”);
Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005) (upholding trial
court’s exclusion of derivative citizenship claim based on prior 1326
conviction); Garza-Gorena v. Ashcroft, 114 Fed. App’x 925, 926 (9th Cir.
2004) (“Garza-Gorena’s sole contention is that he is a U.S. citizen and therefore
cannot be removed for his criminal offenses. Garza-Gorena’s alienage has been
established twice, in his 1974 deportation hearing and in his 1987 conviction for
illegal reentry pursuant to 8 U.S.C. § 1326. General principles of res judicata
and collateral estoppel prevent him from re-litigating matters that were finally
resolved in earlier proceedings.”); United States v. Quintana-Quintana, 60 Fed.
App’x 104, 105–06 (9th Cir. 2003) (explaining that “Quintana’s third claim is
that the district court erred in instructing the jury that it could not consider
evidence of Quintana’s father’s citizenship as evidence of Quintana’s own
citizenship. Quintana did not object to this instruction in the district court. Even
if the instruction were plainly erroneous, any error would not warrant reversal of
Quintana’s conviction because the evidence of Quintana’s father’s citizenship
was insufficient to create reasonable doubt as to Quintana’s own citizenship,
particularly in light of the admissions made by Quintana to the INS agents (who

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individuals who prevailed in their claims to U.S. citizenship after being
deported (and who are counted in Table Five).
Mr. Lyttle and the thirty-one other deported U.S. citizens counted in
Table Six signed removal orders stipulating alienage, did not appeal
decisions of EOIR adjudicators, or misstated their nationality on legal
documents—all events that occurred, they said, because of ignorance,
confusion, or duress.338 Such claims appear in other federal cases as
well.339 I have no evidence that the appellants in these cases are bona
fide U.S. citizens, but the exclusions and assertions accepted by the
appellate courts in these cases would have precluded affirmation of U.S.
citizenship for many of those whose cases are tabulated in Part II.340 It is
inviting to infer that the few cases profiled in the media of U.S. citizens
wrongfully deported means that these events are rare and therefore
notable. Another possibility, one I have seen first-hand for David, Mr.
Lyttle, and Mr. Ibarra, is that media attention itself triggers the rightful
recognition of U.S. citizenship or release from detention pending a final
determination.341 It should be noted as well that even after deported U.S.
citizens return and ICE is aware of its unlawful actions, the agency
continues to expose U.S. citizens to future harms by failing to file
motions with the immigration courts for the purpose of vacating and
rescinding the deportation orders. For instance, Johann Francis, despite
presenting his U.S. passport, was detained in Miami when he returned
from a trip to Jamaica in November 2010; William, born in the United
States but deported to the Dominican Republic for ten years in 1999,
testified at trial) that he was a Mexican citizen who was in the United States
illegally. Moreover, the district court did not preclude defense counsel from
suggesting reasonable doubt as to Quintana’s alienage by cross-examining INS
agents regarding their failure to investigate whether Quintana might have
derivative citizenship or by emphasizing this lack of investigation in closing
arguments . . . . ”).
338
See Interview with deported witnesses, supra notes 14, 15, 16, and 36.
339
See supra note 337.
340
Herbert Flores-Torres prevailed in his claim of U.S. citizenship, but only
after his claim had been denied by an EOIR adjudicator and the BIA, and after
he spent four and a half years in a detention center. Flores-Torres v. Holder, 680
F. Supp. 2d 1099 (N.D. Cal. 2009); Respondent’s Opening Brief on Appeal,
Flores-Torres, supra note 34, at 5. Mr. Flores prevailed for two reasons: (1) he
remained in the detention center for four years and did not succumb to the
temptation of signing a false statement conceding he was not a U.S. citizen; and
(2) he had a dedicated group of U.C. Davis Law School students working on his
behalf under the supervision of Professor Holly Cooper. Flores’s defeats at the
hands of the DOJ employees and the years it took for the appeal confirm the
perspicuity of U.S. citizens who abandon pursuing their U.S. citizenship claims
because they fear spending years in a detention center. Were it not for his
successful appeal, Mr. Flores would have been recorded in ICE statistics as a
criminal alien deported to El Salvador.
341
See supra notes 297 and 313.

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lives in terror that a chance encounter with the local police will trigger a
fingerprint match and another round of detention and possible removal, a
possibility ICE provides no recourse for preventing.342
VI. ICE, EOIR, AND FEDERAL JUDGES ON FAMILY LAW
In addition to the judicial misunderstandings that block invocation of
U.S. citizenship as a defense against immigration crimes, some decisions
by EOIR adjudicators, the BIA, and federal appellate judges adjudicating
de novo claims to U.S. citizenship misconstrue the family and citizenship
rules in former versions of 8 U.S.C. §§ 1101, 1401, 1409(a), and
1432(a).343 These misconstructions unlawfully classify as aliens
individuals who are about twenty-five to fifty-eight years old and meet
the criteria for U.S. citizenship codified at the time of their birth.
Statutory revisions have superseded these older definitions, but
misunderstandings of these legitimacy laws could result in the erroneous
deportation of thousands of incarcerated men and women of foreign
birth.
The relevant portions of the U.S. Code defining “Nationality at
Birth” state:
(c) As used in subchapter III of this chapter—
(1) The term ‘child’ means an unmarried person
under twenty-one years of age and includes a child
342

E-mail and phone calls with Andrew Lorenzen-Strait & Ernestine Fobbs,
ICE officials (Jan., Feb., and Dec. 2010) (failing to respond to repeated queries
on ICE procedures for correcting inaccurate designations of US citizens as
deported criminal aliens in DHS databases); Telephone Interviews with and email from Mr. Francis (Nov. and Dec. 2010); Interview with William (Dec. 17,
2010). William’s deportation followed the INS in 1999 locating a visa issued to
William as a toddler traveling to the United States on a Dominican Republican
passport. William says his mother had abandoned him in the DR as an infant,
and while her Dominican citizenship could be used to convey this to William,
this alone did not prove that William was not a U.S. citizen as well. During his
televideo hearing, William, pro se and 19 years old, informed the adjudicator
that he always believed he was born in the United States, a fact he was able to
corroborate ten years later when relatives obtained documents of his birth,
including his birth certificate and the original photograph and bed card for
“Baby D-” associated with his place and date of birth in a Boston suburb.
Copies of William’s U.S. passport, immigration hearing recording, and
underlying documents are on file with author.
343
The revised citizenship statute now requires that “a blood relationship
between the person and the father is established by clear and convincing
evidence.” Immigration and Nationality Act Amendments of 1986, Pub. L. No.
99-653, § 13(b), 100 Stat. 3655 (1986) (amending Immigration and Nationality
Act § 309(a), 8 U.S.C. § 1409(a)).

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legitimated under the law of the child’s residence or
domicile, or under the law of the father’s residence
or domicile, whether in the United States or
elsewhere, and, except as otherwise provided in
sections 1431-1434 of this title, a child adopted in
the United States, if such legitimation or adoption
takes place before the child reaches the age of
sixteen years, and the child is in the legal custody of
the legitimating or adopting parent or parents at the
time of such legitimation or adoption.344
....
Subchapter III—Nationality and Naturalization
§ 1401. Nationals and citizens of United States at birth.
(a) The following shall be nationals and citizens of the
United States at birth:
....
(7) a person born outside the geographical limits of
the United States and its outlying possessions of
parents one of whom is an alien, and the other a
citizen of the United States who, prior to the birth of
such person was physically present in the United
States or its outlying possessions for a period or
periods totaling not less than ten years, at least five
of which were after attaining the age of fourteen
years: Provided, That any periods of honorable
service in the Armed Forces of the United States by
such citizen parent may be included in computing
the physical presence requirements of this
paragraph.
....
§ 1409. Children born out of wedlock.
(a) The provisions of paragraphs (3)–(5) and (7) of
section 1401(a) of this title, and of paragraph (2) of
section 1408, of this title shall apply as of the date of
birth to a child born out of wedlock on or after the
effecive date of this chapter, if the paternity of such

344

8 U.S.C. § 1101(c)(1) (2006).

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child is established while such child is under the age of
twenty-one years by legitimation.
The statutes, by explicitly referring to legitimacy based on domicile or
residence, indicate that interpretations of family, and therefore
citizenship, status will require deference to family law in different states
and countries.
Immigration adjudicators and federal courts must rely on state
agencies and legislatures for guidance because 8 U.S.C. § 1101, the
“definitions” section of the statute, does not define “legitimacy” or
“father” for purposes of citizenship, though an earlier section does define
“child” and “parent” for purposes of immigration.345 Competing policy
objectives of the agencies responsible for their implementation further
complicate these statutes. Many states, including California, Montana,
Hawaii, and Washington, all in the Ninth Circuit, rely on the Uniform
Parentage Act,346 designed to remove the stigma of illegitimacy by
providing an expansive understanding of paternity for the purpose of
enhancing family unity.347 However, a federal regulation instructs ICE
and the DOJ to presume the alienage of U.S. citizens348 and thus to break
up bona fide families who may lack the resources to hire attorneys with
expertise in citizenship and family law necessary to prevent their adult
incarcerated children from being banished.349

345

See 8 U.S.C. § 1101(b)(1)–(2) (1952).
NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS, UNIFORM
PARENTAGE ACT (2002), available at http://www.law.upenn.edu/bll/archives/ul
c/upa/final2002.htm; see CAL. FAM. CODE §§ 7600–7606; MONT. CODE §§ 40-6101–40-6-135; HAW. REV. STAT. §§ 584-1–584-26; WASH. REV. CODE §§
26.26.011–26.26.914.
347
NAT’L CONFERENCE OF COMM’RS ON UNIF. STATE LAWS, Prefatory Note,
supra note 346 (“The most important uniform act addressing the status of the
nonmarital child was the Uniform Parentage Act approved in 1973 [hereinafter
referred to as UPA (1973)]. As of December, 2000, UPA (1973) was in effect in
19 states stretching from Delaware to California; in addition, many other states
have enacted significant portions of it. Among the many notable features of this
landmark Act was the declaration that all children should be treated equally
without regard to marital status of the parents. In addition, the Act established a
set of rules for presumptions of parentage, shunned the term ‘illegitimate,’ and
chose instead to employ the term ‘child with no presumed father.’”).
348
8 C.F.R. § 235.3(b)(5)(iv); see supra note 25.
349
Family law also may be extremely complex and varies by state. An
individual appealing a conviction under 8 U.S.C. § 1326 on the basis of
acquired or derived U.S. citizenship would require counsel with an expertise in
criminal law, immigration and citizenship law, and family law for the states and
domiciles of the defendant and her father. These cases routinely pose due
process challenges for indigent defendants or respondents.
346

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Family and citizenship laws appear to be based on so-called natural
or pre-legal relationships but in fact state legislatures and Congress are
making these status determinations of parent, father, child, and citizen,
and then invoking certain mythical ideas about nature for their
legitimacy. This means that children born abroad may have bona fide
parent-child relations according to state legitimacy or paternity laws (i.e.,
using statutory definitions of “parent” and “child”) and these may not be
recognized as such by immigration adjudicators or federal judges
unfamiliar with family laws, potentially denying these children their
rightful legal status as U.S. citizens.350 If a child were born abroad to an
alien parent between 1952 and 1986 and has a legitimate parent who was
a U.S. citizen before the child turned sixteen, then, assuming other
criteria are met, the child was a U.S. citizen at birth. However, also for
reasons of preserving family unity, legitimacy may curtail a claim to
U.S. citizenship: if, for example, before February 27, 2001351 the mother
of a child who was a legal permanent resident naturalized before the
child was eighteen, but the legitimate father did not, the child did not
derive U.S. citizenship: “If U.S. citizenship were conferred to a child
where one parent naturalized, but the other parent remained an alien, the
alien’s parental rights could be effectively extinguished . . . .”352 A law
designed to protect both parents’ rights to custody meant a child had to
have both parents naturalize and not just one for purposes of
automatically deriving citizenship.
Here and elsewhere, state statutes, as well as the United States
Supreme Court, define “natural” parent using the law and not biology:
“Under California law, a child born to a married woman living with her
husband is presumed to be a child of the marriage. The presumption of
legitimacy may be rebutted only by the husband or wife, and then only in
limited circumstances.”353 Indeed, this is true by definition: judicial
350

These incorrect decisions affect all family members—who are also U.S.
citizens—and not just the children making claims to U.S. citizenship.
351
From that point forward, a child who is a legal resident under 18 will have
derived U.S. citizenship if only one parent naturalizes. U.S. CITIZENSHIP AND
IMMIGRATION SERVICES, I AM A U.S. CITIZEN: HOW DO I . . . GET PROOF OF MY
U.S. CITIZENSHIP? (Aug. 2008), http://www.uscis.gov/USCIS/Resources/A4en.
pdf.
352
Barthelemy v. Ashcroft, 329 F.3d 1062, 1066 (9th Cir. 2003) (citing Fierro v.
Reno, 217 F.3d 1, 6 (1st Cir. 2000)); see also Flores-Torres v. Holder, 680 F.
Supp. 2d 1099, 1102–03, 1105 (N.D. Cal. 2009). The opinion in Flores-Torres
is important for confirming that the EOIR adjudicator and the BIA tried to
deport a U.S. citizen because they misunderstood the basis for deciding
paternity (de facto relations with the child, not biology alone) and the basis for
determining legitimacy (state law in the U.S., and not just the law of the foreign
country where the child was born).
353
Michael H. v. Gerald D., 491 U.S. 110, 123–24 (1989) (explaining that the
state’s interest in protecting marriage supersedes the rights of biological fathers
to custody of children born to another man’s wife) (citing Cal. Evid. Code Ann.

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opinions constitute legal outcomes, be they those that characterize
businesses, intellectual copyrights, or families, although these
similarities on occasion seem to elude immigration adjudicators and
some judges. As a result, in the context of disputes over U.S. citizenship
individuals claiming acquired citizenship press for an inclusive
understanding of legitimacy, while individuals born before 2001 and
seeking derived U.S. citizenship prefer a narrow definition of legitimacy.
The narrow definition would find citizenship if only a de facto custodial
parent naturalizes (usually the mother), without holding to the earlier
versions’ requirement that both parents naturalize.354 Both the inclusive
and narrow positions are consistent with the language and intent of the
1952 statute. Under § 1409(a) from at least 1952 to 1986, the
government was supposed to pursue policies favoring family unity, even
when it conflicted with genetic paternity.355 Yet an ahistorical and
inaccurate view of the family, largely without legal authority on the part
of DHS and EOIR adjudicators, BIA officials, and federal judges has
resulted in decisions wrongfully stripping U.S. citizens of their U.S.
citizenship.356
§ 621 (West Supp. 1989)). The Court quoted Moore v. East Cleveland, 431 U.
S. 494, 503 (1977): “Our decisions establish that the Constitution protects the
sanctity of the family precisely because the institution of the family is deeply
rooted in this Nation’s history and tradition.” The Michael H. Court continued:
“Thus, the legal issue in the present case reduces to whether the relationship
between persons in the situation of Michael and Victoria [unwed biological
father and daughter] has been treated as a protected family unit under the
historic practices of our society, or whether, on any other basis, it has been
accorded special protection. We think it impossible to find that it has. In fact,
quite to the contrary, our traditions have protected the marital family (Gerald,
Carole [the married couple] and the child they acknowledge to be theirs
[Carole’s daughter from her liaison with Michael]) against the sort of claim
Michael asserts.” For a discussion of the law’s definition of “jus sanguinis” and
“natural parent” based on kinship rules and not biology, see STEVENS, supra
note 331 and Stevens, supra note 91, at 152–83.
354
8 U.S.C. § 1432 (1952 & 1986).
355
Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1094 (9th Cir. 2005).
356
The discussion here focuses on individuals born between 1952 and 1986,
before Congress changed the statute and specified a “blood relation” as a
requirement for U.S. citizenship acquired through a father who is a U.S. citizen.
See 8 U.S.C. § 1401 (2006). Citizenship is adjudicated based on laws in place at
the time of birth. See sources cited supra note 102. In a case before the Fourth
Circuit in 2011, the government is attempting to deport someone whom
adjudicators on two previous occasions deemed a U.S. citizen, asserting that a
third adjudicator correctly understood that Congress could require noncustodial
parents who had no relationship with each other to be married for purposes of
effecting a “legal separation” necessary for the naturalized parent to claim sole
custody for the purpose of deriving U.S. citizenship. Brief for Appellee at 12,
Johnson v. Whitehead, No. 10-1488 (4th Cir. Aug. 25, 2010) (“The immigration
judge determined that ‘legal separation’ under INA section 321(a) required ‘a

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A. NINTH CIRCUIT CITIZENSHIP DECISIONS BASED ON FAMILY LAW
Two recent cases in the Ninth Circuit reveal the BIA’s and appellate
courts’ troubling responses to acquired citizenship claims.357 In
Martinez-Madera v. Holder, two of three Ninth Circuit judges affirmed a
deportation order for Juan Martinez-Madera.358 Mr. Martinez was born
in Mexico in 1953 to a mother who was a citizen of Mexico. He never
knew his biological father. In 1960, Mr. Martinez’ mother married Jesus
Gonzalez, a U.S. citizen.359 The opinion states: “The record does not
contradict the Petitioner’s assertion that since he was six months old,
Gonzalez [a U.S. citizen] has held Petitioner out and treated him as his
son.”360 After Mr. Martinez served a prison sentence for attempted
murder, the government attempted to deport him as an aggravated
felon.361 Mr. Martinez asserted he had acquired U.S. citizenship at birth
because Mr. Gonzalez had “legitimated him as his son ‘in accordance
with California’s legitimation statute.’”362 The immigration adjudicator
Dennis James and the BIA rejected his claim to U.S. citizenship. The
Court of Appeals for the Ninth Circuit, in a two to one opinion affirmed
the EOIR’s findings.
The key fact the BIA and appellate court highlighted was that Mr.
Gonzalez was not married to Mr. Martinez’s mother at the time of Juan’s
birth, thereby distinguishing his case from two others in which the Ninth
Circuit recognized the U.S. citizenship at birth for foreign-born children
of married couples in which one spouse was a U.S. citizen and not the
child’s biological parent.363 Furthermore, the absence of any biological
tie between Mr. Gonzalez and Mr. Martinez precluded any claim of
judicially recognized marital separation and, by implication, a marriage.’”)
(internal citations omitted). For a discussion of this case, see Jacqueline
Stevens, UNROW Law Clinic Fights for David Johnson’s U.S. Citizenship,
STATES WITHOUT NATIONS BLOG (Jan. 31, 2011),
http://stateswithoutnations.blogspot.com/2011/01/unrow-law-clinic-fights-fordavid.html. The Fourth Circuit Court of Appeals, in a 2-1 decision, determined
that “8 U.S.C. §§ 1252(b)(9) and 1503(a) prohibit Johnson from obtaining
review of his citizenship claims through a habeas corpus petition” and that the
Constitution did not provide equal protection to illegitimate children of fathers
who had become naturalized U.S. citizens. Johnson v. Whitehead, No. 10-1488,
2011 U.S. App. LEXIS 10424, at *8, *10 (4th Cir. May 24, 2011).
357
The judges refer to these as “derivative,” although the USCIS reserves this
term for children who are legal permanent residents under age eighteen when
their parents naturalize. See supra note 100.
358
559 F.3d 937, 939 (9th Cir. 2009), cert. denied, 130 S. Ct. 1052 (2010).
359
Id.
360
Id.
361
Id.
362
Id.
363
Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1091 (9th Cir. 2005); Scales v.
INS, 232 F.3d 1159, 1161 (9th Cir. 2000).

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legitimation, the judges held, for two reasons. First, the majority quoted
8 U.S.C. § 1409(a) (1986), establishing that U.S. citizenship for children
born out of wedlock requires “a blood relationship between the person
and the father . . . .”364 Second, the majority stated that California’s Civil
Code applied “only to fathers legitimating their illegitimate biological
children [and] . . . does not apply to stepfathers informally adopting
stepchildren.”365
In United States v. Marguet-Pillado, the Ninth Circuit panel rejected
the claim of acquired U.S. citizenship by Carlos Jesus Marguet-Pillado,
who had appealed his conviction under 8 U.S.C. § 1326(a).366 Carlos
Marguet was born in 1968 in Tijuana. His mother was a Mexican citizen
and his father is unknown. Michael Marguet, a U.S. citizen, was named
as Carlos’ father on a Mexican birth certificate filed in 1973 and “has
held out Carlos Marguet as his own son.”367 Michael was the only father
Carlos knew. After serving time in prison for burglary and attempted
murder, Carlos Marguet was released in 2002. In 2006, he was “taken
into custody for an unrelated incident”368 and an EOIR adjudicator
ordered his deportation as a criminal alien. In reviewing Mr. Marguet’s
claim to U.S. citizenship de novo, the Ninth Circuit panel held:
It is a commonplace that the traditional ways of
transmitting and acquiring citizenship at birth are jus
soli and jus sanguinis. In this country, the former is
provided for by the Constitution, and the latter is
provided for by the enactments of Congress. It would be
a bit surprising to discover that over the decades
Congress had selected a method that relied on neither
concept, but, rather, was content to have United States
citizenship acquired at birth by a person born out of
wedlock, who was not born on United States soil and
who, at the time, did not have a natural parent who was
a United States citizen. As it is, there is no cause for
surprise.369
The panel paraphrases Mr. Marguet’s claim to citizenship as requiring
that “children born out of wedlock can be dubbed United States citizens .
364

Martinez-Madera, 559 F.3d at 941.
Id. at 942.
366
560 F.3d 1078, 1084 (9th Cir. 2009).
367
Id. at 1080.
368
Id. There is no time limit for the period between a conviction of an
“aggravated felony” and the government’s initiation of deportation proceedings.
The decision makes no mention of any subsequent charge and it appears that
Carlos Marguet was placed into ICE custody in 2006 because of a prison
sentence he completed in 2002.
369
Id. at 1082.
365

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. . ,”370 a position that is mocked and rejected.371 Referring to an earlier
decision rebuffing citizenship acquired from a non-biological father for a
child born out of wedlock, the majority writes, “It is difficult to see how
a man could ‘have’ a child ‘out of wedlock’ if he was not that child’s
biological father.”372
The analyses in these cases are flawed on three grounds. First, the
history of jus sanguinis differs quite substantially from the one the
judges presume. Second, statutes on legitimacy, and other laws
regulating the family, were designed to provide legal certainty in the
midst of biological uncertainty and flux, e.g., uncertain paternity and
adoption.373 The overriding purpose of these statutes, marriage law more
generally, and the relevant California legitimacy and federal citizenship
statutes in effect when Carlos Marguet was born and grew up374 is
precisely to establish husbands, including stepfathers, as legal fathers
and to “dub” their children as legitimate and citizens, regardless of the
ability to establish a genetic relation. Third, a cursory consideration of
the U.S. Constitution’s equal protection and due process clauses
anticipates a more detailed statutory exegesis: the blurring and mutually
constitutive lines of biology and law inherent in kinship rules require
deference to a range of families and not an inflexible, one-size-fits-all
definition, as the opinions in Martinez-Madera and Marguet-Pillado set
out to establish in contradiction with California family law precedents. If
this view of family law prevails, children in the same families will have
nationalities different from a parent’s spouse and the child’s siblings, a
situation that discriminates based on birth order, legitimacy, and a
family’s legal acumen and resources,375 and serves no compelling state
370

Id.
See id. at 1083.
372
Id. (citing United States v. Flores-Villar, 536 F.3d 990 (9th Cir. 2008)). The
opinion also states, “‘[T]he Government naturally requires proof of paternity
before determining someone to be the legal father.’” Id. at 1084 n.11 (quoting
Ablang v. Reno, 52 F.3d 801, 805 (9th Cir. 1995)).
373
See STEVENS, supra note 331, at chs. 1, 6.
374
8 U.S.C. §1409(a) (repealed 1986).
375
The Court has allowed immigration laws to discriminate on the basis of
legitimacy but only in circumstances in which respondents sought to establish
de facto families through the law, not when attempting to provide de jure
recognition to de facto families. In other cases, the Court has held distinctions
based on legitimacy to a standard of intermediate scrutiny. See, e.g., Clark v.
Jeter, 486 U.S. 456 (1988) (holding that a six-year statute of limitations for
identifying father of illegitimate child for child support does not meet
intermediate standard of scrutiny); Weber v. Aetna Casualty & Surety Co., 406
U.S. 164 (1972) (finding that illegitimate children have equal right to death
benefits). Requiring that families complete formal adoption procedures to
achieve citizenship for one child and not another establishes two practical
hurdles to family unity. First, requiring families to publicly announce that one
child is “adopted” performs a distinction parents may want to avoid. Second,
371

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interest. Rather than abide by the legitimacy precedents confined to
disputes over inheritance or family custody arrangements, federal courts
confronting legitimacy claims in the context of deportation proceedings
might consider articulating new understandings of legitimacy that
conform with California Civil Code § 230 (repealed 1975) or the
Uniform Parentage Act sections of California’s Family Code in effect
since then. These statutes may be read to include so-called stepfathers as
legal parents, so as to prevent the federal government from deporting
adult children who have or had an exclusive relation with their mothers’
husbands as minors and therefore should be recognized as U.S. citizens
by virtue of California law and federal law. This reading, however, has
found little traction because of the poorly chosen precedents and
demonstrably mistaken dicta in Martinez (including reference to the
wrong version of 8 U.S.C. § 1409) and Scales.
The pro bono and nonprofit attorneys who represented Juan
Martinez and Carlos Marguet laid out the basic analyses and legal
authorities that support this claim: first, 8 U.S.C. § 1409(a) (1952)
conferred U.S. citizenship “if the paternity of such a child is established
while such a child is under the age of twenty-one years by legitimation”;
and second, under California law, they had been legitimated by their
U.S. citizen fathers. Ergo, they are U.S. citizens. In its response, the
government ignored the federal statutes’ deference to definition of
legitimacy in a father’s domicile and instead relied on a strained reading
of Black’s Law Dictionary’s definition of “father” and a partial reading
of California legitimacy laws.
“Black’s Law Dictionary,” according to the Office of Immigration
Litigation attorneys, “defines paternity as ‘[t]he state or condition of
being a father, esp. a biological one; fatherhood.’”376 The attorneys
conclude that this indicates the “ordinary and natural meaning of
‘paternity’ relates to biological fathers.”377 The fact that paternity may be
“esp. a biological” state suggests that also among its ordinary meanings
is a nonbiological state; hence the source cited is not dispositive as to the
statutory meaning of paternity established through legitimation. It is of
course possible that a state statute would confine legitimacy to situations
in which the only possible legitimate father is a genetic one, a claim the
immigrating adults may not properly attend to their children’s citizenship status
and therefore create status problems for their children for which their children
are not responsible. As one attorney explained to me, “Parents are very careful
about their own legal status but are sloppy when it comes to their children”—for
example, with timely filing applications for naturalization and maintaining their
children’s legal documents. Telephone Interview with Los Angeles immigration
attorney (Apr. 2008).
376
Brief for Respondent at 12, Martinez-Madera v. Holder, 559 F.3d 937 (9th
Cir. 2009) (No. 06-73157).
377
Id.

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government also makes, but here again the precedents are not
dispositive.
The appellant’s reply brief quotes the relevant California
legitimation statute378 and states:
Respondent argues that . . . Cal. Civ. Code § 230, “is
only applicable to biological fathers legitimating their
illegitimate children.” (Resp’t Br. 10.) The plain
language of section 230 contains no such requirement
and the Respondent has failed to cite a single case that
has so held.
Instead, Respondent relies on dicta in a case that is
115 years old and concerned a set of facts entirely
inapposite to this case. In Blythe v. Ayres, 31 P. 915
(Cal. 1892), the California Supreme Court considered
the petition of the [presumptive] biological daughter of
the deceased seeking a determination of her right to
inherit her biological father’s estate. Her [presumptive]
biological parents were never married. The court held
that the petitioner was legitimated by her
[presumptively] biological father when he publicly
acknowledged her as his own child.
In the course of its analysis, the court commented
that section 230 is a legitimation statute, not an adoption
statute.
[T]he verb “adopts,” as used in section 230, is used in
the sense of “legitimates,” and that the acts of the
father of an illegitimate child, if filling the measure
required by that statute, would result, strictly
speaking, in the legitimation of such child, rather
than in its adoption. Adoption, properly considered,
refers to persons who are strangers in blood;
legitimation, to persons where the blood relation
exists.

Respondent’s attempt to transform this dicta into a rule
that a stepfather [sic] cannot legitimate a child finds no

378

“The father of an illegitimate child, by publicly acknowledging it as his own,
receiving it as such, with the consent of his wife, if he is married, into his
family, and otherwise treating it as if it were a legitimate child, thereby adopts it
as such, and such child is thereupon deemed for all purposes legitimate from the
time of birth.” Reply Brief for Appellant at 3, Martinez-Madera v. Holder, 559
F.3d 937 (9th Cir. 2009) (No. 06-73157) (quoting CAL. CIV. CODE § 230).

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support in Blythe nor in any case decided in the 115
years since.379
The brief goes on to cite several cases in which the California Supreme
Court “emphasized that the presumption of fatherhood for a parent who
has raised a child as his own can prevail over the competing claim of the
child’s biological father.”380
Moreover, the inheritance cases invoking section 230 cited by the
government also support the appellant. These cases rely, for purposes of
establishing legitimacy, on whether a father holds out a child as his own
and not proof of genetic paternity, a status that could not be ascertained
during most of the period for the decisions cited. Legitimation laws are
part and parcel of a kinship system of marriage and inheritance laws
designed to place men in a legal relationship with children despite the
uncertainty of biological paternity. They are premised on the idea that it
is in society’s interest to recognize a father-child relationship if a man
holds forth a child as his own, absent competing claims. According to a
1945 decision on inheritance flowing to an arguably illegitimate son:
The view of the common law has given way in large
measure to the concept that the onus for the act of the
parents cannot be visited justly upon the child and that
placing responsibility for the support of the child upon
the father equally with the mother, permitting it to
become legitimated and to have a right to his name and
to inheritance from him, will tend as well or better to
deter the potential father than did the common-law
doctrine of irresponsibility, and at the same time
conform more closely to our present ideas of justice.
Indeed, aside from considerations of justice, it may be
suggested that the complete freedom from legal
responsibility for illegitimate children, which
the common law afforded the father, may have been a
doctrine which to the male in licentious moments was

379

Id. at 3–4. I would use the term “father” and not “stepfather” in
circumstances when no other man presents himself as a father and the mother
was not married to anyone else at the time of the child’s birth. See In re
Nicholas H., 46 P.3d 932 (Cal. 2002). The appellants’ brief also points out that
the other two cases cited by the government lack relevance because neither
“considered whether a stepparent could legitimate its step child.” Reply Brief
for Appellant, Martinez-Madera, at 4.
380
Reply Brief for Appellant at 5, Martinez-Madera v. Holder, 559 F.3d 937
(9th Cir. 2009) (No. 06-73157) (quoting CAL. CIV. CODE § 230).

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more encouraging than deterrent, and were better
abandoned.381
The court clearly assumes biological paternity, and the decision is cited
to claim section 230 excludes nongenetic children, but the case provides
no evidence that Lund is indeed the genetic father. Nor does the statute
state a genetic relation as requirement for paternity. Simply because
people, including judges, may have expected a genetic relation to
underlie a claim of paternity does not mean that the statute requires this
expectation, as the cases discussed below illustrate.
The California legislature wanted to ensure that men took
responsibility for children they held out as their own. It did not, nor
could not at the time the statute was written, require genetic paternity as
a precondition for paternity. The California courts have viewed section
230 and legitimacy more generally to convey and withhold assignations
of paternity and legitimacy in a wide variety of contexts that do not
always follow from genetic paternity.382 This is true as well under the
successor code adopting the UPA: “[Plaintiff’s] private interest in
establishing a parent and child relationship based on alleged biological
father status is overridden by the state interests in familial stability and
the best interest of the child.”383
In In re Nicholas H., the court held that despite a man’s admission
that he is a nonbiological father, the law nonetheless construes him as
the presumed father based on his financial support and holding out a
child as his son.384 On point for the U.S. citizenship cases in which
biological fathers do not assert paternity is the court’s claim that the
admission of nonbiological paternity is relevant only when another man
381

In re Lund’s Estate, 159 P.2d 643, 648 (Cal. 1945).
See In re Estate of Bassi, 44 Cal. Rptr. 541, 551 (Cal. Ct. App. 1965)
(“Although criticized, it is the law of this state that where a husband and wife
are separated he cannot by setting up a second family and receiving natural
children therein, legitimate the latter without the wife’s consent.”). The decision
recognizes that a stepfather may be the legitimate father, even if this
determination derives from Italian law, and not California’s § 230.
383
Miller v. Miller, 74 Cal. Rptr. 2d 797, 801 (Cal. Ct. App. 1998) (“[T]he
conclusive presumption of paternity applies to Michael as a matter of law.
Consequently, whether or not Gary is in fact Samantha’s biological father is
immaterial . . . . Michael has established an emotional and financial fatherdaughter relationship with Samantha. Thus, Gary’s private interest in
establishing a parent and child relationship based on alleged biological father
status is overridden by the state interests in familial stability and the best interest
of the child.”). The court held that Gary’s DNA tests proving genetic paternity
did not overcome Michael’s status as the presumptive father. Id.
384
See In re Nicholas H., 46 P.3d 932 (Cal. 2002) (“Our conclusion—that a man
does not lose his status as a presumed father by admitting he is not the
biological father—is also supported by subdivision (b) of section 7612.”).
382

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asserts paternity.385 In In re Karen C., the court ruled that marriage was
not necessary for assigning parental status to a nonbiological and
nonadoptive mother who had raised a child as her own, and deemed
paternity a “decretal fiction.”386 In In re Salvador M., the court ruled that
an older sister who raised her biological brother as her son was the
presumptive mother, and that the Kern County Social Services must
recognize her as such.387
These decisions occurred after the 1975 repeal of section 230, but
they are on point for two reasons. First, as one commentator notes, the
decisions “liberally construed [the UPA’s] provisions to ‘legitimize’
children.”388 Second, they suggest that California family law favors
marital, financial, and de facto parental relations over genetic ones, when
in conflict; and when there is no evidence of a biological parental
relationship, the courts will nonetheless defer to the de facto parent-child
relationship absent any other parent’s competing custody claims. Such
fact patterns are the same as those in the cases discussed in this article.
Moreover, the timeframe for the UPA in California, passed in 1975,389
overlaps with that of the 1952–1986 version of 8 U.S.C. § 1409(a) and
would cover minors in custody of U.S. citizen parents who were married
to their biological parent—and thus in a legal child-parent relation under
California’s family code.
In light of the numerous subsequent decisions from California
family law that affirm the value of a de facto or de jure family that may
385

Id.
124 Cal. Rptr. 2d 677 (Cal. Ct. App. 2002) (“The judicial determination of
paternity is thus a mixture of a search for genetic truth and the implementation
of the strong public policies favoring marriage and family stability, and
disfavoring labels of illegitimacy. A judgment establishing paternity can,
therefore, be a decretal fiction.”).
387
In re Salvador M., 4 Cal. Rptr. 3d 705, 709 (Cal. Ct. App. 2003) (“Rather,
we conclude this is clearly not an appropriate case to find respondent rebutted
the presumption because there was no competing maternal interest and to sever
this deeply rooted mother/child bond would contravene the state’s interest in
maintaining the family relationship.”).
388
Jenny Wald, Legitimate Parents: Construing California’s Uniform
Parentage Act to Protect Children Born into Nontraditional Families, 6 J. CTR.
FOR FAMS. & CTS. 139, 142 (2005). Section 230 (enacted 1872, repealed 1975)
states: “The father of an illegitimate child, by publicly acknowledging it as his
own, receiving it as such, with the consent of his wife, if he is married, into his
family, and otherwise treating it as if it were a legitimate child, thereby adopts it
as such; and such child is thereupon deemed for all purposes legitimate from the
time of its birth. The foregoing provisions of this Chapter do not apply to such
an adoption.”
389
Uniform Parentage Act, ch. 1244, § 11, 1975 Cal. Stats. (repealed 1994)
(current version at CAL. FAM. CODE §§ 7600–7730 (Deering, LEXIS through
2011 Sess.)).
386

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be at odds with the family tree from DNA tests, also cited by the
attorneys for Martinez-Madera, it would be very strange to imagine that
the concept of legitimacy, which is a legal term of art and not a
biological relation, would be used to limit and not expand the class of
children for whom fathers would be incentivized to protect and shelter.
For instance, California Family Code section 7570, the successor statute
to section 230,390 states:
The Legislature hereby finds and declares as follows:
(a) There is a compelling state interest in establishing
paternity for all children. Establishing paternity is the
first step toward a child support award, which, in turn,
provides children with equal rights and access to
benefits, including, but not limited to, social security,
health insurance, survivors’ benefits, military benefits,
and inheritance rights.
Despite this clearly stated policy preference, the Ninth Circuit has
produced decisions incentivizing fathers or stepfathers without the
financial acumen to pursue formal adoptions to look on their foreignborn sons as aliens in their own households. Such a situation encourages
precisely the lack of responsibility and caretaking that, according to the
California Supreme Court, section 230 and the subsequent paternity
statutes were designed to avert.
Also corrosive of paternity and its social benefits are the
implications of endorsing the disestablishment of families in which the
fathers and children mutually believed a genetic relation existed but were
later proven to be in error. (An overzealous ICE investigator might
produce DNA showing a foreign-born adult child is not biologically
associated with his or her U.S. citizen parent, or produce a decades-old
immigration document from one’s parents indicating that perhaps
390

CAL. FAM. CODE § 7570 (Deering, LEXIS through 2011 Sess.). The
connection between § 230, related sections of the 1872 civil code, and the UPA
is underlined by In re Adoption of Marie R., 145 Cal. Rptr. 122, 125 (Cal. Ct.
App. 1978) (“[W]hile the Uniform Parentage Act abolishes the concept of
legitimacy, the Legislature has retained . . . two carry-overs from that concept.
The effect of the new law is to draw a distinction between a natural father
proven to be such by the evidence and ‘presumed’ fathers whose paternity can
be determined by the use of presumptions”), and also in Michael H. v. Gerald
D., 491 U.S. 110, 117 (1989) (“When California adopted the Uniform Parentage
Act, it amended § 621 by replacing the word ‘legitimate’ with the phrase ‘a
child of the marriage’ and by adding nonsterility to nonimpotence and
cohabitation as a predicate for the presumption.”) (internal citations omitted).
This is evidence that since at least 1975 California has defined legitimacy as
presumed paternity on the basis of the criteria in the UPA and not on the basis
of genetic criteria, as suggested by the DHS, DOJ, and BIA.

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another man is one’s biological father, as happened to Joseph Anderson,
discussed below.)391 In other words, the government’s implementation of
the legal fictions of U.S. citizenship and immigration laws comes at the
expense of enforcing the legal fictions of state and federal family
policies.
The decisions in the Ninth Circuit are important because of the large
population of California, the Ninth Circuit states’ proximity to Mexico
and Canada, and because the UPA legitimacy laws are applicable to
many of the children in these border states, including adult children, in
contrast with those that overtly reference biological paternity as a
requirement for legal paternity.392 California’s public policy pursues the
391

In Clevenger v. Clevenger, 11 Cal. Rptr. 707 (Cal. Ct. App. 1961), the court
used the principle of estoppel to obligate a mother’s husband, who held himself
out as the father, to make child support payments for a son his wife conceived
with another man. This principle might also be used to preclude the government
from requiring biological evidence of a parental relationship for purposes of
establishing legitimacy, even under the 1986 version of 8 U.S.C. § 1409(a).
Moreover, insofar as the federal government for over thirty years never
attempted to inform Joseph Anderson that he was a legal permanent resident
and not a U.S. citizen, and that his father, Harold, was not his biological father,
the government benefitted from the father-son relationship this established. It
appears capricious and excessively harmful not only to Joseph, but also to his
siblings and his mother, to emphasize facts that would destroy this relationship
at this late date. Moreover, the action appears to conflict with California Family
Code § 7630(c), limiting the parties who may challenge a father-child
relationship. CAL. FAM. CODE § 7630 (Deering, LEXIS through 2011 Sess.)
(“Except as to cases coming within Chapter 1 (commencing with Section 7540)
of Part 2, an action to determine the existence of the father and child
relationship may be brought by the child or personal representative of the child,
the Department of Child Support Services, the mother or the personal
representative or a parent of the mother if the mother has died or is a minor, a
man alleged or alleging himself to be the father, or the personal representative
or a parent of the alleged father if the alleged father has died or is a minor.”).
The DHS falls into none of these categories and thus appears to lack standing
for rebutting a respondent’s invocation of a parent-child relation in the state of
California.
392
See, e.g., Act of Mar. 17, 1921, ch. 114, 1921 Ariz. Sess. (“Every child is the
legitimate child of its natural parents and is entitled to support and education as
if born in lawful wedlock, except the right to dwelling or a residence with the
family of its father, if such father be married. It shall inherit from its natural
parents and from their kindred heir, lineal and collateral, in the same manner as
children born in lawful wedlock. This section shall apply to cases where the
natural father of any such child is married to one other than the mother of said
child, as well as where he is single.”). But see In re Lund’s Estate, 159 P.2d
643, 648 (Cal. 1945) (discussing reasons not to insist on biological paternity).
Section 230 omits the word “natural” and refers only to a “father.” Moreover,
according to the U.S. Supreme Court, even “natural children” is a legal term of
art: “The Roman law distinguished between the offspring of that concubinage

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opportunity for children who are fatherless except for their relationship
with the husbands of their mothers to have a father-child relationship and
be considered as legitimate under either section 230 or the parent-child
sections of the UPA, discussed in more detail below.393 The BIA and
court decisions used to deport California residents who grew up as
children and siblings of U.S. citizens relied not only on ahistorical and
incorrect intuitions about paternity but also, in Martinez-Madera and
Scales, statutory language and analyses from the incorrect version of 8
U.S.C. § 1409(a), citing to the 1986 and legally binding 1952 version.
The brief requesting an en banc hearing on behalf of Mr. Martinez
pointed out the correct legal analysis of the dissenting judge and the
outright error of the two judges in the majority, a point made by Judge
Kim Wardlaw during a 2011 oral argument in response to the
government’s attorney’s claim that legitimacy required a “blood
relationship.”394 Judge Wardlaw replies that this was an opinion signed
by just two Supreme Court justices in Miller v. Albright:395
Our court relied on [Miller dicta] in Marguet-Pillado . . .
but it also in turn relied on an earlier decision of our
court that somehow contains an error. I hate to blame
law clerks for this sort of thing but [Martinez-Madera]
cites to the new version of the statute for the proposition
that the old version contains the blood relationship . . .
and it’s just a mistake in the opinion that got picked up
later because as you [addressing the government
attorney] and I both know, the new version expressly
added it, whereas it was not in the old version.396
It is tempting to ascribe the judiciary’s erroneous designation of the
relevant statute to the complexity of citizenship law, but there is
something else behind these mistakes, as well as the unfounded
assertions about jus sanguinis that appear in the Marguet-Pillado
opinion. A few Ninth Circuit judges share with the rest of the public
some rather primitive intuitions about families and family law, a
which it tolerated as an inferior species of marriage, and ‘the spurious brood of
adultery, prostitution, and incest.’ The former were termed naturales; and the
latter, spurii, adulterini, incestuosi, nefarii, or sacrilegi, according as they were
respectively the fruit of prostitution, of incest between persons in the direct line
of consanguinity, or related in remoter degress, and of the violation of vows of
chastity.” Stevenson’s Heirs v. Sullivant, 18 U.S. 207, 262 (1820) (citations
omitted).
393
See supra text accompanying note 387.
394
Oral Argument, Anderson v. Holder, No. 09-70249 (9th Cir. argued Feb.
9, 2011), available at http://www.ca9.uscourts.gov/media/view_subpage.php?p
k_id=0000006940.
395
Miller v. Albright, 523 U.S. 420 (1998).
396
See Anderson, No. 09-70249 (oral dissent of Judge Wardlaw).

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situation not at all surprising due to the enormous gulf between a family
romance well-entrenched in metanarratives of even advanced- and postindustrial societies and the lived experiences of most families.
B. IDEOLOGY OF JUS SANGUINIS PERFORMED THROUGH KINSHIP RULES
One reason that the opinions are somewhat confused is that many of
us seem to believe that citizenship laws have traditionally relied on
“blood”397 (genetic paternity), an assumption that is categorically
incorrect.398 Certainty of these relationships did not exist until the late
twentieth century.399 “Given the impossibility” of assigning genetic
paternity without DNA tests, Gregory Kaebnick observes, “British and
American law has long held that a biological relationship must always be
assumed to exist,” even when it cannot be known.400 The authors explain
that this is “known as the ‘marital presumption’ or ‘presumption of
legitimacy’,”401 and it applies to the mother’s husband “unless he was
absent, impotent, or sterile.”402 Moreover, the law may grant exclusive
paternity rights to the statutory father, even if he is demonstrably not the
genetic one. In Michael H. v. Gerald D., the genetic father was denied
custody rights because these were the irrebuttable and solitary rights of
the mother’s husband.403 The Court ruled in a manner consistent with
Kraebnick’s observation that this “presumption can fly in the face of the
facts, even of the very widely known facts . . . .”404
By allowing a child born out of wedlock is the child of a married
parent’s spouse, as long as the marriage occurred before the child was
eighteen years old, the U.S. government made exactly the policy
commitment the majority in Marguet-Pillar claimed was “ludicrous.” In
Scales and Solis-Espinoza, the Ninth Circuit recognized legal and not
biological paternity as sufficient for automatically acquiring U.S.
citizenship.405 The opinions held that being born in wedlock satisfied the
397

The anachronistic, metonymic reference to “blood” and not the more
accurate word “genetics” represents the judges’ investment in fictional
narratives of intergenerational ties. The connotation of “blood” saturating
intergenerational relations heightens the putative and not historical importance
of paternal genetics for establishing paternity.
398
See STEVENS, REPRODUCING THE STATE, supra note 331, at 3–101.
399
Gregory Kaebnick, The Natural Father: Genetic Paternity Testing,
Marriage, and Fatherhood, 13 CAMBRIDGE Q. OF HEALTHCARE ETHICS 49
(2004).
400
Id. at 49.
401
Id.
402
Id.
403
491 U.S. 110, 111 (1989).
404
See Kaebnick, supra note 399, at 54.
405
See Scales v. INS, 232 F.3d 1159, 1163–64 (2000) (finding that Washington
state law on legitimacy confers paternity “because he is born in wedlock”
despite affidavit stating Scales is not the genetic father); Solis-Espinoza v.

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relevant statutory requirements for acquired citizenship during the period
the respondents were born, even though the U.S. citizen parents from
whom citizenship was acquired certainly were not genetically related to
their children.406 The decision relied not only on 8 U.S.C. § 1401, but
also on California law on legitimacy:
According to the Cal. Civil Code in effect when Mr.
Solis was born: “The father of an illegitimate child, by
publicly acknowledging it as his own, receiving it as
such, with the consent of his wife, if he is married, into
his family, and otherwise treating it as if it were a
legitimate child, thereby adopts it as such, and such
child is thereupon deemed for all purposes legitimate
from the time of its birth.”407
The statute contemplates a child’s retroactive legitimation to the “time of
its birth” absent legitimacy at the chronological time of birth and absent
a genetic relation between the father and the child. Similarly,
California’s Vital Statistics agency performs this for nongenetic
legitimate or adoptive parents, whose names retroactively appear on the
birth certificates as the child’s parents at the time of birth.408 These legal
fictions appear throughout the law, and especially family law,409 the
practice of which requires these for marriage to even exist.410 Mr.
Gonzales, 401 F.3d 1090, 1093–94 (9th Cir. 2005) (finding that “California
Civil Code §230 provided specifically that a child, such as Solis-Espinoza, who
was acknowledged by the father and accepted into the family by the father’s
wife, was legitimate” even if there was no blood relationship).
406
Scales, 232 F.3d at 1160 (“We must decide whether 8 U.S.C. § 1401 requires
a blood relationship between a person born outside the United States and his
U.S. citizen parent, a question of first impression. We hold that it does
not . . . .”).
407
Solis-Espinoza, 401 F.3d at 1094 (quoting CAL. CIV. CODE § 230 (1872)
(repealed 1976)).
408
The state in which the legal parents of an adopted child reside will issue a
new birth certificate indicating their names as “mother” and “father” at the time
of birth. See CAL. HEALTH & SAFETY CODE §§ 102625–102769 (Deering,
LEXIS through 2011 Sess.) (concerning certificates of birth following adoption,
legitimation, court determination of paternity, and acknowledgment).
409
Black’s Law Dictionary states that a child is legitimate when “conceived or
born in lawful wedlock, or legitimated either by the parents’ later marriage or
by declaration or judgment of legitimation,” a tautology that performs the legal
character of the concept, i.e., a child is legitimate when declared or judged
legitimate.
410
In 2007, forty percent of mothers who gave birth were unmarried. Changing
Patterns of Nonmarital Childbearing in the United States, CTRS. FOR DISEASE
CONTROL, http://www.cdc.gov/nchs/data/databriefs/db18.htm (last visited Dec.
26, 2010). In 2008, 7.1 million people were married, and 3.5 million people
divorced. CTRS. FOR DISEASE CONTROL, NATIONAL VITAL STATISTICS REPORT,

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Marguet’s appeal requesting an en banc hearing makes this point as well,
pointing out that the law is the law even if it does not conform with a
judge’s expectations: “Because Congress has defined the terms ‘child’
and ‘legitimation,’ this Court cannot employ an alternative definition.
This is true even if the panel finds the results ‘surprising’.”411 Moreover,
other California judges have found the rigorous attachment to jus
sanguinis “absurd”412 and thus presumably would find the Marguet
opinion surprising.
The main distinction between conveying legitimacy by a nongenetic
parent’s marriage to the alien parent via a marriage certificate issued
prior to the U.S. citizen’s birth and after a child’s birth bears primarily
on the question of others who might come forward to dispute a claim to
paternity. One California case quotes two dictionaries defining a stepfather as a “‘man who succeeds one's father as the husband of one's
mother.’ Black's Law Dictionary defines ‘stepparent’ as ‘[the] mother or
father of a child born during a previous marriage of the other parent and
hence, not the natural parent of such child.’”413
The suggestion here, the use of the paternal presumption absent a
genetic relation when no one else asserts paternity, and the notion that
father-child relationships may be primarily about intergenerational
support and not individual genetics is based on legal precedents relevant
for evaluating cases in which the judiciary is being asked to weigh
California’s efforts to preserve family unity against the federal
government’s efforts to disrupt this. The mothers of Mr. Martinez, Mr.
Marguet, and, Mr. Anderson did not marry their biological fathers. Thus,
according to their de facto experiences and the definitions quoted above,

http://www.cdc.gov/nchs/data/nvsr/nvsr57/nvsr57_19.pdf (last visited Dec. 26,
2010). In 2009, 30% of children were being raised without two married parents,
meaning that for any particular child, the chances of being in a household
without two married parents at some point before the age of 18 was about 50%.
America’s Families and Living Arrangements: 2009, U.S. CENSUS BUREAU,
http://www.census.gov/population/www/socdemo/hh-fam/cps2009.html
(last
visited Dec. 26, 2010). See Jacqueline Stevens, Methods of Adoption:
Eliminating Genetic Privilege, in ADOPTION MATTERS 68, 77–78 n.9 (Sally
Haslanger & Charlotte Witt eds., 2005).
411
Petition for Rehearing En Banc at 6, United States v. Marguet-Pillado, No.
08-50130 (9th Cir. May 11, 2009).
412
In re Angela A., 28 Cal. Rptr. 3d 923, 930 (Cal. Ct. App. May 26, 2005)
(“Application of the privilege here would lead to the absurd result of protecting
a family unit that no longer exists, and giving Angela a father she has never
really known and who has never shown any willingness to support her
financially or otherwise.”).
413
Marckwardt v. Soto, 198 Ca. Rptr. 41, 46 (Cal. Ct. App. 1984) (quoting,
respectively, RANDOM HOUSE COLLEGE DICTIONARY 1287 (1982) and BLACK’S
LAW DICTIONARY 1268 (5th ed. 1979)) (emphasis supplied in opinion).

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the men who held them out as their respective sons were not stepfathers.
In other words, they were and are their only fathers.
The notion that a so-called stepfather becomes a father by receiving
his new wife’s children into his family was codified as well in section
209 of the California Civil Code (enacted 1872, repealed 1979):
A husband is not bound to maintain his wife’s children
by a former husband; but if he receives them into his
family and supports them, it is presumed that he does so
as a parent, and, where such is the case, they are not
liable to him for their support, nor he to them for their
services.
Section 209 refers to the husband who receives “his wife’s children by a
former husband” into his home as a “parent,” but in cases in which the
children’s mother did not have a “former husband,” the current husband
could be construed as the father and not just a parent, as no other father
exists. The historical and current statutes thus express a range of
parenting possibilities that California courts have recognized absent
evidence of a genetic child-father relationship. The statutes afford the
courts a great deal of discretion for recognizing husbands as de facto and
hence de jure fathers—a possibility to which the BIA and the Ninth
Circuit opinions in Martinez-Madera and Marguet-Pillado were perhaps
insufficiently attentive.
This is not surprising. Family law’s implementation is typically
defined by contests among competing custodial parents disputing their
responsibilities and obligations, or among relatives in probate courts.
Typically the state is a third party adjudicating these disputes or
intervening when a minor child is in danger. By entering the family
scene as an interested party, and in particular a party interested in
thwarting the unity of undisputed de facto families residing in California,
the federal government is implementing priorities and agendas at odds
with the state legitimation and parent/child laws to which 8 U.S.C. §§
1101, 1401 and 1409 require deference.414
Because a child becomes a U.S. citizen when her non-U.S. citizen
parent marries a U.S. citizen, even if the child is biologically unrelated to
the U.S.-citizen parent, as in Scales and Solis-Espinoza, the pressing
legal question is not whether the statute in effect between 1952 and

414

There are grounds for challenging the constitutionality of the 8 USC §
1409(a) (1986) “blood” requirement but these will not be explored in this
article.

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1986415 allowed parents to ensure that genetically unrelated children
shared their own U.S. citizenship. Instead, the relevant legal question is
whether, for those born outside the United States between 1952 and
1986, the law accommodates claims to acquired citizenship through
legitimation or other declarations of paternality by a father who was not
married to the mother until after the child was born. The opinions in
Martinez-Madera and Marguet-Pillar, and a subsequent version of §
1409,416 maintain an understanding of the family directly at odds with
the statute in place until 1986 and also the opinions in Scales, SolisEspinoza, and Flores-Torres.
In Scales and Solis-Espinoza, the petitioners were deemed U.S.
citizens at birth because one genetic parent was married to a U.S. citizen
when the petitioners were born. But the Solis-Espinoza decision does not
limit legitimacy to these criteria and indeed invites a broad legal
definition of legitimacy under 8 U.S.C. §§ 1401 and 1409: “Public
policy supports recognition and maintenance of a family unit. The
immigration and Nationality Act (‘INA’) was intended to keep families
together. It should be construed in favor of family units and the
acceptance of responsibility by family members.”417 For Mr. Flores, ICE
and the BIA construed legitimacy broadly for the purpose of claiming
that his mother’s naturalization before he was eighteen could not trigger
U.S. citizenship for her son because Mr. Flores had been legitimated by
his father, a citizen only of El Salvador.418 However, District Court
Judge Alsup held on remand that, despite episodic encounters with his
father and his father’s legal acknowledgement of paternity under
Salvadoran law, Mr. Flores was a U.S. citizen. The heart of the decision
is a detailed analysis of El Salvador’s rules on legitimacy and the

415

See Martinez-Madera v. Holder, 559 F.3d 937, 941 n.1 (9th Cir. 2009), cert.
denied, 130 S. Ct. 1052 (2010) (“The text of 8 U.S.C. §§ 1401 and 1409 was not
amended in any relevant way between 1952 and 1986.”).
416
8 U.S.C. § 1409(a) (2006) (requiring “clear and convincing evidence” of a
blood relationship between a child and father, among other requirements, to
establish citizenship for the child).
417
Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1094 (9th Cir. 2005). The
opinion continues: “See, e.g., Kaliski v. Dist. Dir. of INS, 620 F.2d 214, 217
(9th Cir. 1980) (discussing the ‘humane purpose’ of the INA and noting that a
‘strict interpretation’ of the Act, including an ‘arbitrary distinction’ between
legitimate and illegitimate children, would ‘detract from . . . the purpose of the
Act which is to prevent continued separation of families); H.R. Rep. No. 851199, pt. 2 (1957), reprinted in 1957 U.S.C.CA.N. 2016, 2020 (observing that
the ‘legislative history of the Immigration and Nationality Act clearly indicates
that Congress intended to provide for a liberal treatment of children and was
concerned with the problem of keeping families of United States citizens and
immigrants united.’).” Id.
418
Flores-Torres v. Mukasey, 548 F.3d 708, 709–10 (9th Cir. 2008).

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petitioner’s family history, from birth through high school,419 exactly the
careful examination of family ties necessary if citizenship laws are not to
run roughshod over intimate family ties. Unlike the Ninth Circuit
decisions discussed above, Judge Alsup’s opinion recognizes the
inherent complexity of family ties and the need for laws regulating these
ties in context.420
De facto families are not always de jure families for purposes of
marriage and citizenship laws. However, even within the relatively
narrow scope of single- or two-parent households, family law has never
been implemented without careful analysis of specific de facto
conditions and relationships. Forays into adjudicating citizenship claims
based on family law need to reflect these nuanced and case-specific
evaluations, as well as the variation among state family laws.421 Family
law in statutes and as interpreted under the Constitution has been crafted
to distinguish some intergenerational households as having the legal
status of parents and children. Citizenship laws historically have
attempted to ensure that children have the same citizenship as their
parents.422 Efforts to define “family” by heavily weighting biological ties
are inconsistent with kinship practices worldwide, including within the
United States. Political societies’ definitions of paternity have not and
could not follow from genetic ties because these so-called blood
relations are historically unstable, largely unknown and in many places
419

Flores-Torres v. Holder, 680 F. Supp. 2d 1099 (N.D. Cal. Dec. 23, 2009).
The judge observed the history of the petitioner’s mother’s financial support for
her son while she was in California and he was in the care of her mother in El
Salvador, her concerns about his gang associations that prompted her to send
him out of state to his father’s home for part of eighth grade, where, the judge
wrote, his “father treated him like a stranger,” and the father’s overall
comportment as a “deadbeat dad in almost every way that mattered.” The judge
recognized that applying a statute so as to protect the potential rights of a noncustodial parent when Mr. Flores was seventeen—practically speaking it seems
unlikely he would be pressing for the right to bring him to El Salvador at that
point—would have been nonsensical. Id. at 1106.
420
See discussion supra note 410.
421
For instance, the Seventh Circuit held that citizenship could be conferred
under §1401(g) by a U.S. father in a common law marriage, as the defendant
asserted had occurred for his U.S. citizen father and his noncitizen mother who
gave birth to him in Mexico. United States v. Gomez-Orozco, 188 F.3d 422,
426 (7th Cir. 1999) (“[I]f Gomez-Orozco was born in wedlock, which includes
common law marriages, then he would be a citizen of the United States, and it
would not be possible for him to be guilty of the crime with which he was
charged.”). PACER indicates that the case terminated on May 8, 2000,
suggesting that the prosecution dropped the charge of Illegal Reentry (searched
Jan. 29, 2010).
422
See supra notes 405, 417 and accompanying text; STEVENS, supra note 331,
at 102–71 (reviewing legal theories and histories of citizenship laws based on
kinship rules from antiquity to present).

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unknowable and ungovernable, and thus have never been the basis of the
legal practice of jus sanguinis, but only its myth.423 This was the basis of
the Court’s decisions in a series of cases granting Congress authority to
allow sex discrimination in its immigration laws: for the purpose of
citizenship laws, families are not defined primarily by genetic
relationships.424
1. Joseph Anderson
Mr. Anderson’s case illustrates the importance of relying on state
family law for determining a respondent’s citizenship status, and not on
the intuitions about family law held by EOIR adjudicators. Joseph
Anderson was born in the Philippines in 1974. His mother was a citizen
of the Philippines and, although they were not married when Joseph was
born, the father indicated on his birth certificate, the man who married
Joseph’s mother on returning from duty in Vietnam when Joseph was
seven months old, and the man who supported Joseph and held him out

423

Not only is paternity largely uncertain, the family itself may take several
forms, making the singular definition unknowable absent a political decision.
Perhaps the best discussion of this is found in EMILE DURKHEIM, THE
ELEMENTARY FORMS OF THE RELIGIOUS LIFE 126 (Joseph Ward Swain trans.,
1965) (arguing that laws predate families, so that formal rules allow recognition
of what counts as a family), and CLAUDE LEVI-STRAUSS, ELEMENTARY
STRUCTURES OF KINSHIP (Rodney Needham ed., James Harle Bell & John
Richard von Sturmer trans., 1969) (showing the political and psychological, not
biological, bases for kinship and membership rules).
424
See, e.g., Miller v. Albright, 523 U.S. 420, 438 (1998) (holding that 8 U.S.C.
§ 1409 also serves two other important purposes that are unrelated to the
determination of paternity: the interest in encouraging the development of a
healthy relationship between the citizen parent and the child while the child is a
minor; and the related interest in fostering ties between the foreign-born child
and the United States,” indicating that paternal blood ties are not dispositive in
establishing a relationship sufficient to merit definition of a “child” for purposes
of citizenship, and citing Lehr v. Robertson, 463 U.S. 248 (1983), for the
holding that states may regulate paternity based on legal criteria and not
genetics); Fiallo v. Bell, 430 U.S. 787 (1977) (holding that exclusion of
illegitimate natural child of father and not mother from definition of “child” in
the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1101 (b)(1)(D) and
(b)(2), is constitutional). In short, state governments and the Court have
announced that genetic paternity is not a sufficient basis for establishing legal
paternity, and that legal relationships are sufficient to define a child’s
legitimacy, absent genetic ties. See also Opening Brief of Respondent at 16,
Flores-Torres v. Mukasey, 548 F.3d 708 (9th Cir. 2008) (No. 08-16484)
(“California distinguishes between biological and presumed fathers, giving the
latter greater legal rights than biological fathers.”); In re Zacharia D., 862 P.2d
751, 760 n.15 (Cal. 1993) (“A biological or natural father is one whose
biological paternity has been established but who has not achieved presumed
father status as defined in Civil Code § 7004 [now Family Code § 7611].”).

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as his son until he passed away in a 2001 car accident, was Harold
Anderson, Jr., a U.S. citizen.425
When Joseph was three, Officer Anderson moved his family to a
base in Alaska. Shortly after that, the family settled at the Alameda
Naval Base, where Joseph lived with his married parents and his younger
brother until he was nine, at which point the family moved to Phoenix,
Arizona.426 Joseph graduated from high school and remained in the area
until 2002, when he was found guilty of a drug crime, which ICE
charged as an “aggravated felony.” On December 23, 2007, at the
conclusion of his prison sentence, Mr. Anderson believed he was being
released in time for Christmas dinner at his grandmother’s home.
Instead, federal agents brought him to the wing of the Pinal County Jail
rented out to ICE,427 an act his mother refers to as a “kidnapping.”428
DHS attorneys argued that Joseph Anderson was not Harold’s
legitimate son and was therefore ineligible for citizenship under the old
INA sections 301 and 309(a) because no blood relation existed and
Harold was not married to Joseph’s mother at the time of Joseph’s birth,
an analysis the BIA twice upheld.429 The BIA stated that the respondent
did not provide documentation from the Philippines, Arizona, or
California “indicating that even one of those jurisdictions would
consider him to be the legitimate offspring of Harold Anderson, Jr.”430
Further, the BIA distinguished Mr. Anderson’s case from Scales and
Solis-Espinoza: “[T]he Ninth Circuit concluded that the requirement of a
blood relationship could only be overlooked in instances where the child
was not ‘born out of wedlock.’”431 The BIA also stated: “...even were we
to assume that the respondent could apply either Filipino, Arizona, or
California law to establish his legitimacy, we would still conclude that

425

In re Anderson, 2009 WL 263034 (B.I.A. Jan. 21, 2009). Anderson’s case
was recently argued before the Ninth Circuit Court of Appeals. Anderson v.
Holder, No. 09-70249 (9th Cir. argued Feb. 8, 2011).
426
Interview with Joseph Anderson in Florence, Ariz., at Pinal County Jail (Apr.
9, 2008).
427
Mr. Anderson mentioned paying special attention to the Travel Channel. He
thought that the shows on restaurants might assist in any job search he might
need to conduct if he is indeed deported. Interview with Joseph Anderson in
Florence, Ariz., at Pinal County Jail (Mar. 25, 2009).
428
Telephone Interview with Lanie Anderson, Joseph’s mother (Mar. 10, 2010).
429
See In re Anderson, 2009 WL 263034 (B.I.A. Jan. 21, 2009); In re
Anderson, slip op. (B.I.A. Aug. 5, 2008) (on file with author).
430
In re Anderson, 2009 WL 263034 (B.I.A. Jan. 21, 2009).
431
Id. (citing Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1093–94 (9th Cir.
2005)). The BIA also rejected his attorney’s argument that Mr. Anderson’s
conviction did not constitute an “aggravated felony” under the 1996 Act. Id.

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he has not met his burden of proving that he possesses a blood
relationship with Harold Anderson, Jr.”432
This BIA decision makes a number of mistakes, all similar to those
that ICE, the EOIR adjudicator, and the DHS attorney made in deciding
Mr. Flores’s status. Instead of following congressional citizenship policy
designed to maintain family unity,433 these agencies pressed for family
separations.434 The EOIR decisions in 2008 and 2009 reiterated the
positions taken by ICE, and provided no evidence that anyone from the
EOIR had actually read the analysis put forward by Mr. Anderson’s
Motion to Reconsider and appeals.435 Mr. Anderson’s second Motion to
Reconsider cites INA § 309(a) and INA § 101(b)(1)(C):436
In its decision, this Board stated, “Insofar as the
respondent was born in the Philippines, we must look to
that jurisdiction’s laws to determine whether he has been
legitimated.” BIA Dec. at 2. The decision offered no
explanation as to why the place of birth controls for
purposes of legitimation. [Note:] Several paragraphs
before the discussion of legitimation, the decision states
that the “applicable law for transmitting citizenship” is
the “law in effect on the child’s birth date.” BIA Dec. at
2. While this Board’s decision may be implying that the
relevant law is also the law in effect at the place and
time of the child’s birth, case law only supports the
interpretation that the date of the child’s birth is
controlling for purposes of determining the law under
which citizenship, not legitimacy, will be determined.
Furthermore, the idea that the applicable law of
legitimacy is the law in effect at the place and time of
birth is at odds with the plain language of the
statute . . . .”437

432

Id at note 2.
See supra notes 355, 417 and accompanying text.
434
See supra notes 356 and accompanying text.
435
The initial motion included copious analysis of U.S. family law and
legitimacy laws for California and Arizona, per §§ 301 and 309. The initial BIA
decision ignored this and without explanation relied exclusively on legitimacy
law in the Philippines. See Appellant’s Mot. to Reconsider, In re Anderson
(B.I.A. Aug. 5, 2008) (on file with author).
436
“[A] child legitimated under the law of the child’s residence or domicile, or
under the law of the father’s residence or domicile, whether in or outside the
United States, if such legitimation takes place before the child reaches the age
of eighteen . . . .” Appellant’s Mot. to Reconsider at 2–3, In re Anderson (B.I.A.
Oct. 20, 2008) (on file with author).
437
Id. at 3–4 (citations omitted).
433

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An earlier Motion to Reconsider had likewise pointed out: “the BIA’s
decision to apply the law of the Philippines to the exclusion of other
residences or domiciles of Respondent or Harold Anderson prior to
Respondent’s 21st birthday was not explained or otherwise supported by
logic or authority.”438 Nonetheless, the appeal again quotes from and
carefully analyzes legitimacy statutes in the Philippines, and argues that
Joseph is Harold’s legitimate son under those laws as well.439 The BIA
decisions therefore confuse the BIA’s own failure to consider Mr.
Anderson’s arguments with the allegation that they were not submitted.
(The second decision ignores entirely the respondent’s analysis of
legitimacy law in the Philippines.)440
During the February 9, 2011 oral argument before the Ninth Circuit,
a judge asked the government attorney if Mr. Anderson met the
legitimacy requirements under the law of the Philippines, California, or
Arizona. The government attorney stated he did not, and said that the
BIA also believed this to be the case, implying that the BIA had
considered Mr. Anderson’s legitimacy claims based on California and
Arizona law and found them wanting. The BIA decisions, however, only
address the legitimacy claim based on its analysis of legitimacy law in
the Philippines, despite the fact that Mr. Anderson’s BIA appeal lays out
the argument for his legitimacy under California law:
In Michael H. v. Gerald D., 491 U.S. 110, 119 (1989),
Justice Scalia noted that a similar presumption of
paternity under California law that disregards a blood
relationship should be accorded deference as a
substantive rule of law. Justice Scalia noted, “Of course,
the conclusive presumption not only expresses the
State’s substantive policy but also furthers it, excluding
inquiries into the child’s paternity that would be
destructive of family integrity and privacy.”441
Later, the appeal discusses in detail Mr. Anderson’s claim under
California’s section 230, quoting the statute and then explaining:
Here, the evidence establishes that Harold Anderson
publicly acknowledged Respondent as his child by
438

See Appellant’s Mot. to Reconsider at 3–4, In re Anderson (B.I.A. Aug. 5,
2008) (on file with author).
439
“Article 220 Title VII, Chapter 1 of the Civil Code of the Philippines reads:
‘In case of doubt, all presumptions favor the solidarity of the family. Thus every
intendment of law or facts leans toward the validity of marriage, the
indissolubility of marriage bonds, the legitimacy of children . . . .’” Id.
(emphasis added in Motion).
440
See In re Anderson, 2009 WL 263034 (B.I.A. Jan. 21, 2009).
441
See Brief for Respondent at 9, In re Anderson (B.I.A. Oct. 20, 2008).

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signing Respondent’s birth certificate and completing a
sworn Affidavit to Be Accomplished in Case of an
Illegitimate Child, listing himself as the “father of the
child” described in the birth certificate. Furthermore, the
fact that Harold Anderson married Respondent’s
mother, filed petitions for Respondent and Respondent’s
mother, returned to the United States together, and lived
in various places as a family demonstrates that Harold
Anderson treated Respondent as if he were Harold
Anderson’s legitimate son.442
The BIA does not explain how it comes to assert the requirement of a
“blood relation” in the face of a state legitimation law the respondent is
invoking to show that legitimation may occur without this. Thus the BIA
did not provide any reasons for disputing Mr. Anderson’s claim to
legitimacy under California law, but simply ignored it.
Also troubling is the BIA’s incorrect citation of Solis-Espinoza to
claim that a “blood relationship could only be overlooked in instances
where the child was not ‘born out of wedlock.’”443 The passage the BIA
cites states: “While we observed in Scales that the ‘blood relationship’
requirement in 8 U.S.C. § 1409 applied to an illegitimate child, we held
that the requirement applied only to an illegitimate child and that it did
not apply to someone who was not born ‘out of wedlock.’”444 SolisEspinoza says a genetic relationship is required “only” for illegitimate
children, but Joseph is not illegitimate because under § 1409 legitimacy
is retroactive. Hence, under California law and thus § 1409 (1974),
Joseph is Harold’s legitimate son.445 Far from supporting the position of
ICE, this passage referencing § 1409 supports the position of Mr.
Anderson.
The BIA states that “Harold Anderson Jr. signed the respondent’s
birth certificate and completed a separate affidavit attesting to his
paternity.”446 This and the ongoing financial and other support Harold
provided his son are enough to establish Harold Jr. as Joseph’s presumed
father under the Uniform Parentage Act, codified as California’s
paternity laws since 1975.447 Moreover, no one else would qualify as
442

Id. at 12.
See In re Anderson, 2009 WL 263034 (B.I.A. Jan. 21, 2009).
444
Solis-Espinoza v. Gonzales, 401 F.3d 1090, 1093 (9th Cir. 2005) (citing
Scales v. INS, 232 F.3d 1159, 1164 (9th Cir. 2000)).
445
8 U.S.C. § 1409(a) (2006); see also Brief for Petitioner at 2, Flores-Torres v.
Mukasey, 548 F.3d 708 (9th Cir. 2008) (No. 08-16484).
446
In re Anderson, 2009 WL 263034 (B.I.A. Jan. 21, 2009) (punctuation
omitted).
447
CAL. FAM. CODE § 7611 (Deering, LEXIS through 2011 Sess.)) defines the
presumption of paternity as follows:
443

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Joseph’s presumed natural father. No one else married Joseph’s mother,
was named on Joseph’s birth certificate as his father, or received him
into his home and openly held him out as his son. Joseph appears to
qualify as Harold Jr.’s legitimate child and thus meets the criteria for
U.S. citizenship.448
VII. RECOMMENDATIONS
U.S. citizens are being wrongfully deported because of problems
systemic to current immigration laws and their enforcement by DHS and
DOJ agencies. As noted above, existing law prohibits ICE from
detaining U.S. citizens. ICE officials and spokespersons have interpreted
this to mean that it “may not knowingly” detain U.S. citizens.449 This
interpretation appears designed to avoid liability for civil damages and
A man is presumed to be the natural father of a child if [. . .]:
(a) He and the child’s natural mother are or have been married
to each other and the child is born during the marriage, or
within 300 days after the marriage is terminated by death,
annulment, declaration of invalidity, or divorce, or after a
decree of separation is entered by a court.
(b) Before the child’s birth, he and the child’s natural mother
have attempted to marry each other by a marriage solemnized
in apparent compliance with law, although the attempted
marriage is or could be declared invalid, and either of the
following is true:
(1) If the attempted marriage could be declared invalid
only by a court, the child is born during the attempted
marriage, or within 300 days after its termination by
death, annulment, declaration of invalidity, or divorce.
(2) If the attempted marriage is invalid without a court
order, the child is born within 300 days after the
termination of cohabitation.
(c) After the child’s birth, he and the child's natural mother
have married, or attempted to marry, each other by a marriage
solemnized in apparent compliance with law, although the
attempted marriage is or could be declared invalid, and either
of the following is true:
(1) With his consent, he is named as the child’s father on
the child’s birth certificate, or
(2) He is obligated to support the child under a written
voluntary promise or by court order.
(d) He receives the child into his home and openly holds out
the child as his natural child.”
448
On August 23, 2010, over two years after I first met Mr. Anderson, who was
held since December, 2007, I posted bond and he was released from ICE
custody. His appeal of the BIA decision awaits a hearing before the Ninth
Circuit.
449
See Telephone Interview with Andrew Strait-Lorenzen, Community
Outreach Coordinator, ICE (Feb. 12, 2010).

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worse. ICE is proposing that its agents’ ignorance of facts and law is a
defense against civil rights and false imprisonment claims. However, this
position is politically and legally dubious for several reasons, an obvious
one being the agency’s refusal to regulate detention operations.450 If the
DHS will not regulate its detention operations, it may not claim it is
enforcing the due process rights of U.S. citizens.
Below are some minimum measures necessary to protect U.S.
citizens from being held in ICE custody and deported:
1. Laws and regulations should be enacted to provide detained
respondents the same due process protections as defendants in
criminal proceedings, as this standard appropriately ensures against
the wrongful deportation of U.S. citizens. These protections include
government-funded counsel if the respondent is not able to afford a
lawyer; the inadmissibility into evidence for deportation cases of
confessions to unlawful presence in the United States signed under
duress, including extended confinement of more than six hours; and
a review of EOIR files for the purpose of overturning deportation
orders in which the EOIR file contains an I-213 without a
certificate of service indicating it was shared with the respondent.451
2. ICE should allow full public access to sites of respondents’
incarceration. Anyone in ICE custody should be able to meet with
anyone from the public subject only to the two parties’ mutual
agreement. Visiting policies should reflect the fact that no one in
ICE custody is there for reasons of punishment. Allowing access is
therefore consistent with the statutory goal of ensuring respondents’
removal in the event this is ordered. It also serves an important role
in providing accountability for deportation officers, who at present
may violate the law without this being reported. The government
does not assert that its “service processing” (from the ICE
predecessor agency “Immigration and Naturalization Service”) and
“detention” centers (privately owned) are for purposes of
punishment; thus there is no good immigration-related policy
reason for requiring respondents’ isolation from the larger public, a

450

See Letter from Jane Holl Lute, Deputy Sec’y, ICE, to Michael Wishnie,
Clinical Professor of Law, Yale Law School, and Parmita Shah, Associate
Director, National Lawyers Guild (July 24, 2009), available at
http://www.nationalimmigrationproject.org/legalresources/Immigration%20Enf
orcement%20and%20Raids/Detention%20Standards%20Litigation/DHS%20de
nial%20-%207-09.pdf.
451
In light of EOIR failing to issue sanctions against DHS attorneys upon
receipt of I-213s without certificates of service for respondents, affirmative
administrative actions are necessary to ensure respondents have access to
evidence that will be used against them in immigration hearings.

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practice that denies U.S. citizens the right to call attention to their
plights and hold ICE accountable.452
3. The DOJ should ensure immigration court access is consistent with
8 C.F.R. § 1003.27. If the DOJ lacks funds sufficient to provide
public hearings for those in ICE custody, then the EOIR should
order the release of respondents so that their hearing venues are
accessible to the public, in conformity with the regulation.
4. The DOJ Office of Professional Responsibility and the Office of the
Inspector General should investigate the EOIR’s attorneys in the
agency’s Office of General Counsel and Office of the Chief
Immigration Judge for evidence of malfeasance in failing to
forward evidence of adjudicator and staff misconduct to the OPR
and OIG, as required by 8 C.F.R. § 292.3(i)453 and 28 C.F.R. §
0.29c(a),454 and interference with the investigation of complaints
against practitioners by state bar associations. Complaints to the
EOIR and OPR that had yielded negative findings should be reopened.
Two measures that might appear to prevent ICE from deporting U.S.
citizens without the costs and effort of the changes suggested above
include screening for U.S. citizens and affording their cases special
scrutiny, or issuing national identity cards that would conclusively prove
one’s U.S. citizenship. However, these are demonstrably insufficient. On
November 9, 2009 John Morton, ICE Assistant Secretary, issued the
452

On several occasions in 2009, ICE public affairs officers Kelly Nantel, Brian
Hale, and Phoenix Field Director Katrina Kane violated the visiting and media
procedures in the ICE Detentions Standards, depriving Joseph Anderson of his
right to freedom of association. See Jacqueline Stevens, ICE Puts Son of Navy
Officer Incommunicado, Attorney Outraged, STATES WITHOUT NATIONS BLOG
(Mar. 9, 2009, 8:10 AM), http://stateswithoutnations.blogspot.com/2010/03/iceputs-son-of-us-navy-officer.html; Latino USA: ICE Accountability at Issue,
NAT’L PUB. RADIO (Mar. 11, 2009), http://www.latinousa.org/884.
453
8 C.F.R. § 292.3(i) (2010) (“Complaints regarding the conduct or behavior of
DHS attorneys shall be directed to the Office of the Inspector General, DHS. If
disciplinary action is warranted, it will be administered pursuant to the
Department’s attorney discipline procedures.”). According to documents
responsive to a request filed under the FOIA, between September 2009 and
August 2010 EOIR failed to forward any misconduct complaints to OPR,
including ones that detailed evidence supporting allegations of civil and
criminal law-breaking by EOIR adjudicators and other staff. Stevens, supra note
184.
454
28 C.F.R. § 0.29c(a) (2010) (“Evidence and non-frivolous allegations of
criminal wrongdoing or serious administrative misconduct by Department
employees shall be reported to the OIG, or to a supervisor or a Department
component’s internal affairs office for referral to the OIG, except as provided in
paragraph (b) . . . .”).

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agency’s deportation officers and attorneys an order to release
individuals producing probative evidence of U.S. citizenship.455 The lack
of due process protections discussed above has allowed ICE agents to
ignore the order.456 Likewise, an identity card will not work for people
who do not know they are U.S. citizens because of earlier mistakes by
Citizenship and Immigration Services or Customs and Border Protection.
Also, ICE has detained and attempted to deport U.S. citizens who have
valid U.S. passports,457 which under present law is proof of U.S.
citizenship.458 In short, the only way to guarantee that the U.S.
government is not depriving U.S. citizens of their rights in deportation
proceedings, an objective mandated by constitutional and statutory law,
is to afford everyone in ICE custody full due process rights.
5. Congress should make the Child Citizenship Act of 2000, Public
Law 106-395, retroactive and thus applicable to all individuals,
regardless of their date of birth. These statutory rules provide clear
criteria for derived and acquired citizenship that the older statutes
lack, and thus would allow for more efficient determinations of U.S.
citizenship status.459
Admittedly, some of these measures may burden U.S. taxpayers.
However, unless these protections are afforded to everyone in DHS
custody, the unlawful and unjust practice of deporting U.S. citizens will
continue. The costs of these measures are the costs of the due process
protections U.S. citizens need in order for them not to be wrongfully
deported. If Congress cannot afford to deport undocumented residents
and also protect the rights of U.S. citizens, then it may repeal those laws
whose enforcement is deemed too costly.

455

See Morton Memo supra note 41.
See, e.g., supra text accompanying note 97.
457
See, e.g., discussion of Mr. Lyttle, supra note 301 and accompanying text;
Complaint, Keil v. Treveline, No. 09-3417 (W.D. Mo. filed Nov. 6, 2009) (“At
the time of his arrest Defendants referred to Plaintiff, a United States Citizen, as
an ‘illegal alien’ . . . . Defendants took Respondent’s facially valid US
Passport . . . . Defendant was later charged in the Western District of Missouri,
for falsely claiming to be a United States Citizen.”).
458
22 U.S.C. § 2705 (2006); see In re Villanueva, 19 I. & N. Dec. 101 (B.I.A.
1984) (“Unless void on its face, valid United States passport issued to individual
as citizen of United States is not subject to collateral attack in administrative
immigration proceedings and passport constitutes conclusive proof of such
person’s citizenship; district director erred in failing to consider passport as
conclusive proof of United States citizenship for purpose of admitting spouse of
petition as spouse of American citizen.”).
459
See Press Release, U.S. Citizenship and Immigration Services, The Child
Citizenship Act of 2000 (Oct. 24, 2004), http://www.uscis.gov/files/pressrelease
/CCA_102504.pdf (providing an official summary of Public Law 106-395
provisions for acquired citizenship).
456

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APPENDIX
The FIRRP files are sorted by detention center, year, and, in the case
of the Eloy files, whether the respondent had “won,” which included
those who agreed to voluntary departure and therefore would not have
claims to U.S. citizenship affirmed. For the total number of files from
2006 to 2008, I relied on FIRRP’s reporting data to the Vera Institute for
Justice, which subcontracts to FIRRP from a grant from the Department
of Justice. I inspected each file that was sorted in the Eloy “win” drawers
from 2006 to 2008. Although I physically handled over 2,000 files, I
read and took notes only on those in which it appeared that the
respondent had a deportation order terminated because of U.S.
citizenship.
A. ELOY DETENTION CENTER FILES
Each respondent file contains notes recorded by FIRRP attorneys
during and immediately following their consultations with people in ICE
custody preparing for their pro se appearances before an EOIR
adjudicator. Most of the files stated the date of the meeting, the reason
for the detention, the legal claim, if any, for the respondent remaining in
the United States, and the EOIR adjudicator hearing date and decision.
The files also might include legal documents, correspondence with
respondents and their family members, and dated notes based on followup meetings recorded on the file sleeve. The files typically included one
entry reflecting one meeting, though many of the files of those making
successful claims of U.S. citizenship included multiple entries.
For those who had deportation orders terminated because of U.S.
citizenship, and for some of those who seemed to have strong claims but
were deported, I recorded on a laptop spreadsheet data under headings
that included the reason for detention, details of the U.S. citizenship
claim, intake date at the detention center, the place detained, the date the
EOIR adjudicator first terminated deportation proceedings on grounds of
U.S. citizenship, and the date the individual was ultimately released, in
some cases several months after the EOIR’s initial order. For some of
the cases, the file information was incomplete. For instance, information
on when the respondent was first detained might not have been
recorded.460 When this information was not included I relied on either
copies of ICE documents in the file indicating when the respondent was
first detained or notes on when the respondent first met with the FIRRP
460

FIRRP attorneys typically made weekly presentations at Eloy and then made
themselves available for brief consultations in advance of their hearings.
Respondents with hearings at the Florence Processing Center, who may be held
in other facilities and transferred in the early morning to FPC, would receive
their presentations immediately before their initial hearings. Interview with
Kara Hartzler, FIRRP staff attorney, in Florence (Mar. 25, 2009).

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attorney to establish the beginning range of detention.461 I also used the
EOIR 800 number case retrieval system to confirm the dates for
proceedings terminated by EOIR adjudicators.462
B. FLORENCE SERVICE PROCESSING CENTER AND LOCAL JAIL FILES
The files for individuals confined at the Florence Service Processing
Center and individuals held at local jails under contract with ICE were
not sorted by “wins.” Because of time constraints, I inspected each file
from 2008 to determine whether the respondent had a successful claim
of U.S. citizenship, but could not inspect the files for previous years. In
reviewing all of the Florence files for 2008,463 I noticed a pattern of close
ties to U.S. citizens among those appearing to have no legal claim to
residence. Lacking time to record the data from all of the files along this
dimension, I episodically tracked these by counting all cases within
randomly selected letters of the alphabet, for instance, tallying data
available for all files labeled with a last name beginning with the letter
“E.” These results appear in Table 4.
C. COMPARISON OF FIRRP FILE RESPONDENT CHARACTERISTICS WITH
TOTAL DETAINED POPULATION
There is no way to definitively match the characteristics of the
respondents in the files I reviewed with those of the entire population of
respondents in detention, or even the characteristics of the respondents
held in southern Arizona. Four factors indicate the FIRRP sample
understates the number of U.S. citizens locked up by ICE; one factor
might contribute to the sample overstating the percentage of U.S.
citizens among the total detainee population.
First, the opportunity to attend a legal orientation program (LOP)
meeting is available only to individuals who will be appearing at an
EOIR hearing.464 However, a large number of those assembled in
detention centers in southern Arizona and elsewhere are being taken out
of the country on the basis of “stipulated removal orders” and thus do
not receive an administrative hearing, a disproportionate number of
461

This resulted in an understatement of the length of detention. FIRRP
attorneys often met people who had been detained days or even weeks earlier,
but would never create a file for someone who had not yet been detained.
462
See Immigration Case Status Information, EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW, http://www.justice.gov/eoir/npr.htm (last updated Sept.
2010).
463
FIRRP has filed all non-Eloy files as “Florence,” and I follow its division
here as well.
464
Legal Orientation and Pro Bono Program, EXECUTIVE OFFICE FOR
IMMIGRATION REVIEW, http://www.justice.gov/eoir/probono/probono.htm (last
updated Dec. 2010).

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whom are held in Eloy.465 This is the group most likely to contain U.S.
citizens.466
According to Rachel Rosenbloom, a professor at Northeastern Law
School, an immigration judge who insists on “thoroughly questioning”
people who sign these orders “regularly encounters U.S. citizens.”
Rosenbloom adds, “There are many judges who don’t question people,
and it’s very likely there’s going to be U.S. citizens among those people
as well, and they’re not being [identified].”467
Such individuals often would not have an opportunity to attend an
LOP or meet a FIRRP attorney and therefore would not appear in their
files.468
Second, the New York Bar Association surveyed people held in the
Varick Detention Center in 2009 and found 8% had valid claims to U.S.
citizenship.469 This is a population that would include people with
notices to appear before an EOIR adjudicator as well as those with
administrative removal orders who were being held en route to transfers
abroad.
Third, as the records in Tables Five and Six indicate, people who
have valid claims to U.S. citizenship may sign documents indicating
otherwise. Although they were held as aliens in the Eloy or Florence
Detention Centers, and may have met with FIRRP attorneys, their
agreement to removal orders would cause them to be classified as aliens,
and they would not have their deportation orders terminated by an EOIR
adjudicator.

465

From 2003–2008, ICE removed 100,000 individuals on the basis of
stipulated removal orders, the plurality of which were issued in Eloy. Jayashri
Srikantiah & Karen Tumlin, Press Release, National Immigration Law Center,
Backgrounder: Stipulated Removal (Nov. 12, 2008), http://www.nilc.org/immla
wpolicy/removpsds/stipulated-removal-bkgrndr-2008-11.pdf.
466
Most of the cases in Tables 5 and 6 refer to individuals who had received
administrative removal orders, the basis of an EOIR adjudicator issuing a
stipulated removal order.
467
See supra note 12.
468
If individuals ICE arrests as aliens make a claim of U.S. citizenship, ICE is
supposed to give them a Notice to Appear for an immigration hearing.
However, these individuals would not be on a list of those invited to LOP
presentations, and ICE does not always follow this regulation.
469
NEW YORK CITY BAR. NYC KNOW YOUR RIGHTS PROJECT 8, 12 (November,
2009), http://www.nycbar.org/citybarjusticecenter/pdf/NYC_KnowYourRights
Nov09.pdf (“Potential Eligibility for Relief, Derivative Citizenship, 8%”; “The
sample analyzed for this report consists of 158 detainees interviewed at the
weekly clinics between December 11, 2008 and July 9, 2009.”).

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Fourth, people who have strong claims to U.S. citizenship are
probably more likely to have private counsel than the rest of people ICE
detains. These people would be more likely to meet directly with their
own attorneys and would therefore not appear in the FIRRP files as
detained U.S. citizens.
One factor causing the FIRRP data to overstate the ratio of U.S.
citizens in ICE custody is that the denominator may include individuals
more likely to have claims of relief than the denominator of the entire
detained population. People who believe they have no grounds of relief
may not meet with the LOP attorneys and would not be included in their
files.