Release of citizen held in immigration detention highlights difficulties for others

BY JESSICA CORSI

Thanks to the help of Harvard Law School volunteers, an HLS alumna, and a Stanford law grad, a U.S. citizen mistakenly detained by Immigration and Customs Enforcement (ICE) and held among regular prisoners at the Bristol County House of Correction  in North Dartmouth, Mass. was released after a monthlong detention. 

Walther, 23, became a citizen as a teenager. The Harvard Immigration Project (HIP) helped him claim his citizenship, leave jail, and avoid the trauma of deportation to Peru, a country he has not lived in since he was 13.

HIP is a student-run organization that advocates for changes in U.S. immigration law that would protect immigrants’ rights.  For the last year they have partnered with the PAIR (Political Asylum/ Immigration Representation) Project, a Boston area pro-bono organization that is often the only legal representation available to persons detained by ICE.  For each of the estimated 1,000 ICE detainees in Boston each day, there are around seven legal professionals—four full time PAIR staff and professors from Suffolk University, Boston College, and Roger Williams University law schools—available to assist them with their claims.  The substantial discrepancy between the need for legal services and available practitioners means that volunteers, fellows, and students are essential to preventing wrongful detentions and deportations and protecting detainees’ rights.

Walther’s case hinged on precisely such impermanent personnel—Paul Sass ’11, an HIP volunteer; Andrea Saenz ’08, an Equal Justice Works Fellow at PAIR, former HIP member, and former Editor-in-Chief of the Harvard Law Record; and Nick Stanley, a Stanford Law alum and deferred law firm associate who has been working at PAIR for the last three months. Once a month, a team of PAIR attorneys takes HIP volunteers and other local law students to ICE detention centers to speak with detainees in advance of their deportation hearings.  The volunteers inform the detainees of  their rights, taking down their information in case they can make a claim that could enable their release and prevent their deportation. Before HIP got involved, PAIR staff were sometimes unable to hear everyone’s claims.  With HIP’s help, everyone is heard within half a day.

It was Paul Sass’ first time meeting detainees when he was introduced to Walther on October 8th.  Walther had been arrested for the Massachusetts equivalent of a DWI.  While he was in police custody, ICE put a detainer on him, thinking that he was a Peruvian citizen with Permanent Residency.  ICE describes its mission as “[s]trengthening the nation’s capacity to detain and remove criminal and other deportable aliens.”  It is able to detain and deport even legal residents for what many would consider minor offenses. 

Unfortunately, Walther’s position is not entirely unique.  ICE is supposed to screen for derivative citizenship, but it doesn’t always happen in practice, and every year there are many people who find themselves behind bars and fighting ICE’s presumption that because they were born in another country, they aren’t citizens.  In 2007, Hector Veloz, the son of a Vietnam veteran and a U.S. citizen, was locked up for 13 months in an Arizona prison because ICE thought he was an illegal alien. 

ICE moved quickly to shuttle Walther from police custody to immigration detention.  Local law enforcement agencies agree to report foreign-born individuals to ICE when they arrest them or observe them in court.  Once reported, ICE runs a computer check, and if they find a visa overstay, lack of inspection at the border, or other cause for ICE to think that the person is here illegally, they send a detainer to the local police, ordering them to hold the person for up to 48 hours (not including weekends) and giving ICE the ability to take custody when the local law enforcement agency no longer wants to hold him or her (sometimes even after a sentence is completed).  This is exactly what happened to Walther. The process happens so quickly that there is often no time for the detained person to make any phone calls to ask for help or to let family and friends know what is going on.  Detainees are often not fully informed of what is happening to them, and there are no attorneys or others present during this process to intercede on their behalf.

A derivative citizenship case like Walther’s is particularly complicated; given its vagaries and complexities, attorneys often liken immigration law to tax codes.  Walther thought that he might have obtained citizenship from his mother, who had arrived in the U.S. from Peru ahead of him.  He followed her here as a Lawful Permanent Resident, or green card holder, and lived with her as a child.  While he was growing up in the U.S., his mother naturalized as a citizen, but nothing was done to obtain full citizenship for Walther.  In 2000, however, Congress passed the Child Citizenship Act, a federal law that automatically gives citizenship to children such as Walther who were under 18 when at least one of their biological parents naturalized. Walther’s family did not know that this law applied to him and he did not have the documents on him to prove it, given that he had been taken from police custody straight to ICE detention.  Due to prison phone systems, it is extremely difficult for people—whether family or counsel—to call in, but Paul and PAIR had made sure that Walther had PAIR’s phone number so that he could follow-up with them.  Walther called PAIR a week after he gave his information to Paul, and Nick Stanley took up his case.

Once Nick realized that Walther fell under the Child Citizenship Act, he moved quickly to obtain the proof necessary to ensure his release—his birth certificate, his Green Card, and the most important item: proof of his mother’s naturalization.  Nick then called the Department of Homeland Security’s ICE?Chief Counsel Office and spoke the Duty Attorney for the day.  A few hours later the attorney called back to request the documents Nick had obtained.  Twenty minutes after Nick faxed them, the attorney called to say that Walther was going to be released.  His release happened so quickly that there was no time even to let him know he would soon be free, and so Nick called Walther’s family to make sure that someone was there to meet him when ICE released him into the jail’s parking lot on November 6th, just under a month after Paul took down his information.  Walther ws lucky: his release came relatively quickly.

Inside the Bristol jail, detainees like Walther are entirely dependent on counsel working on the outside to assist them.  Most cannot afford private attorneys, who are often reluctant to get involved, because of challenging barriers put in place by ICE and the rapidity with which their clients are deported.  Many people in Walther’s situation are deported without ever having had counsel and with nothing more than a video hearing before an immigration judge.  Because deportation is not considered a criminal punishment—despite the fact that it is an extremely harsh “penalty,” particularly for infractions, like DWI,  that would not even have merited probation—the U.S. government has decided that immigrant detainees facing deportation do not have a right to counsel.  ICE is a large bureaucracy and, due to federal law, the personnel working on immigration cases are often mandated to take quick action to detain and deport without any room for discretion. 

Walther’s story had a happy ending, thanks to the work of HIP and PAIR.  HIP intends to expand its programs and become a student practice organization, which will increase the power of PAIR to assist ICE detainees and prevent wrongful detention and deportation.  Until then, the detainees in the Boston area will continue to rely on the seven attorneys and handful of volunteers who get in to see them once a month.

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