ICE Plans to Start Destroying Records of Sexual Assault and Deaths in Custody

[jimmy olsen]

This should terrify every American citizen. This is only the start.

https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/ice-plans-start-destroying-records-immigrant

ICE Plans to Start Destroying Records of Immigrant Abuse, Including Sexual Assault and Deaths in Custody

By Victoria Lopez, Senior Staff Attorney, ACLU National Prison Project

August 28, 2017 | 4:00 PM

Immigration and Customs Enforcement recently asked the National Archives and Record Administration (NARA), which instructs federal agencies on how to maintain records, to approve its timetable for retaining or destroying records related to its detention operations. This may seem like a run-of-the-mill government request for record-keeping efficiency. It isn't. An entire paper trail for a system rife with human rights and constitutional abuses is at stake.

ICE has asked for permission to begin routinely destroying 11 kinds of records, including those related to sexual assaults, solitary confinement and even deaths of people in its custody. Other records subject to destruction include alternatives to detention programs; regular detention monitoring reports, logs about the people detained in ICE facilities and communications from the public reporting detention abuses. ICE proposed various timelines for the destruction of these records ranging from 20 years for sexual assault and death records to three years for reports about solitary confinement.

For years, advocates and communities across the country have denounced human rights abuses in the detention system. Many of the records that ICE proposes for destruction offer proof of the mistreatment endured by people in detention. Given the Trump administration's plans to increase the size and scope of the system substantially, it is all the more disturbing that the agency wants to reduce transparency and accountability.

NARA has provisionally approved ICE's proposal and its explanations for doing so are troubling. In cases of sexual assault and death, for example, NARA states that these records "do not document significant actions of Federal officials." It's hard to believe that the actions of a federal official are not significant in the death or sexual assault of an individual who is in federal immigration custody. NARA also posited that in cases of sexual assault, that the "information is highly sensitive and does not warrant retention."

Keeping these documents available is necessary for the public to understand and fully evaluate the operation of a system that is notorious for inhumane and unconstitutional conditions affecting hundreds of thousands of people every year. Even 20 years is far too short for keeping the record of a death or sexual assault of an individual in government custody.

Recent reports by advocacy groups document sexual assaults in detention without adequate investigation or remedy, sub-standard medical care, the overuse of solitary confinement as well as threats and physical assault by custody staff. Since October 2016, there have been 10 deaths in immigration detention. Many of the records used in these reports and analyses would not have been made available without sustained public pressure to force ICE to maintain and divulge this information.

The impacts of detention are devastating on immigrants, their families and communities. For an individual who has been sexually assaulted in detention or for a family member whose loved one died in detention, having a full and thorough record of ICE's actions, its policies and investigation can be an important step toward vindicating their rights.

If the Trump administration has its way, the number of immigrants in detention will increase, detention conditions will deteriorate further and more people will be subjected to life-threatening circumstances and denied their most basic rights. ICE shouldn't be allowed to purge important records and keep its operations out of the public eye.

[mongers]

It would be sad if this is you're last ever thread on Languish, Timmay if you're going to get nuked/gassed/bombed please post a last thread about time travelling dinosaur riding barbarians.   

[CountDeMoney]

As much as I support the ACLU, they need to really sit down with NARA and go over precisely what federal records retention standards and schedules involve. 

[Tonitrus]

Ugh, every time I have been exposed to government record-keeping/retention rules, I wanted to stab myself in the face.

And don't get me started on classified emails.  I've deleted tons of them. 

[The Brain]

I don't know how those retention times compare to times for other similar federal records, without that information I find it hard to build sufficient outrage. Surely even the US can manage to finish a criminal investigation of sexual assault in 20 years?

If I compare to say times for radiation dose data for individuals working in the nuclear sector in Sweden (my guess would be that fairly similar rules apply in the US but I don't know this) 20 years seems short for cases that involve medical information regarding an individual.

[grumbler]

And don't get me started on classified emails.  I've deleted tons of them. 

Did you properly document the deletions?  And then properly document the destruction of the documentation of the deletions?

[jimmy olsen]

Speaking of ICE, they are a disgrace.

http://www.tucsonsentinel.com/local/report/082517_marine_deportation/decorated-marine-vet-may-deported-despite-likely-us-citizenship/

Decorated Marine vet may be deported, despite likely U.S. citizenship

George Ybarra has PTSD, drug problems & criminal convictions — family says he needs treatment, not banishment

Posted Aug 25, 2017, 2:10 pm

Joe Watson & Paul Ingram
TucsonSentinel.com

A decorated veteran of the U.S. Marine Corps who served in the Persian Gulf War was transferred to an immigration detention facility in Eloy, Ariz., late last week, where he faces deportation to Mexico despite evidence that he is a United States citizen.

In fact, a federal judge has already ruled that George Ybarra is a citizen. Even so, federal authorities have continued to work to deport him.

A series of mistakes and crimes on Ybarra's part and a pattern of failures by U.S. officials have led a man to spend more than a decade in and out of the corrections system, with the veteran stranded once again in an immigration detention center. Ybarra has severe PTSD symptoms, drug problems and criminal convictions (including firing a rifle in the direction of police), but his family and attorney said he needs treatment, not banishment.

Ybarra, 52, was transferred from the Arizona Department of Corrections prison in Tucson to immigration authorities after serving a seven-year sentence for aggravated assault.

Ybarra was convicted for firing two rounds through the front door of his south Phoenix home in August 2011, narrowly missing two Phoenix police officers who were responding to a 911 call he had placed.

No one was injured in the incident, which Ybarra blames on a delusional episode induced by post-traumatic stress that he's suffered since the Persian Gulf War. Ybarra said he believed that Immigration and Customs Enforcement was coming to "take away" members of his family.

Ybarra had legitimate reasons to worry about immigration agents.

Just three months prior, following one of several drug-related violations, he was in the ICE detention facility in Eloy trying to convince a federal immigration judge that he was actually a U.S. citizen and shouldn't be deported. Ybarra had been entangled in the justice system again, which prompted ICE to take him into custody after a brief prison stint. His list of criminal convictions and brushes with law enforcement had grown long, complicating his efforts to stay in the country he served.

Yet in May 2011, Ybarra was released from ICE custody after federal immigration Judge Richard Phelps ruled that Ybarra had proven "by a preponderance of the evidence" that he is, in fact, a citizen and ordered the agency to release him.

However, Department of Homeland Security lawyers appealed the ruling and continued to push for Ybarra's deportation.

That appeal remains in place, which means despite the ruling that Ybarra is a U.S. citizen, ICE was able to issue a detainer for him, requiring state corrections officials to hand him over to ICE when he was released from prison this month. He remains in federal detention while immigration officials reconvene deportation proceedings that had been suspended more than five years ago.

'3rd-generation American'

"Not only is George Ybarra a third-generation American," said Luis Parra, Ybarra's Nogales-based attorney, "but he's also a decorated war veteran. And ICE will not give up trying to deport him."

Ybarra's case, according to Parra, is not unusual among those with acquired, or "derivative," citizenship, which granted to children via the naturalization of their parents, under the Immigration and Nationality Act.

Parra has represented dozens of clients with derivative citizenship claims in several Arizona border towns, including Nogales.

"But George is the only veteran I know of, because of his criminal history — the only person who volunteered to serve his country — who has had to fight for (derivative citizenship)," Parra said.

Ybarra was born in October 1964 as Jorge Ibarra-Lopez in Nogales, Son., Mexico.

He argues that he's entitled to derivative citizenship by way of his grandfather, Jose Jesus Lopez, who was born in Bisbee, Ariz., in 1917, "and lived in the United States for all but five years of his life," according to a legal brief filed on Ybarra's behalf in 2003.

TucsonSentinel.com reviewed a copy of Jose Jesus Lopez's birth certificate, as well as other documents related to Ybarra's case.

Esperanza Lopez, Ybarra's mother, was born in Cananea, Son., Mexico, in 1944, but acquired citizenship through her father, Parra said.

Ybarra's parents moved to the Arizona side of Nogales when he was just three months old, before moving to Tucson until he was five, and then to the south Phoenix neighborhood where he grew up and went to high school. Ybarra was not aware he did not have proof of bona fide citizenship until he was on the verge of graduation and ready for enlistment into the U.S. Marine Corps Reserve.

As early as 10 years old, Ybarra said, he knew that he wanted to be a Marine. When his recruiter told Ybarra that his request for naturalization would be expedited upon his enlistment, Ybarra said he had no doubt that would happen.

He enlisted in 1985 as a permanent resident alien. But after his time in the Marines, Ybarra was no closer to being ruled a U.S. citizen.

"I knew that enlisting was the best way for me to get out of my neighborhood and to make my family proud of me," Ybarra said in an interview last month at the minimum-security Whetstone Unit at the Arizona State Prison Complex in Tucson.

"I wanted to serve my country," he said.

Ybarra had already served six years in the Marine Corps Reserve when, in January 1991, U.S. forces launched Operation Desert Storm. Ybarra said that when he wasn't activated, he called his commanding officer and volunteered for deployment.

"I had all that training. Why would they want it to go to waste?" he said.

Ybarra was deployed to transport explosive ordnance disposal units to the front lines in Kuwait, and then to help clear landmines for the First Marine Division's invasion force. Ybarra said his unit was attacked by Iraqi tanks, forcing him to jump into a foxhole to shield himself from incoming mortar and gunfire.

A few weeks later, Ybarra found himself clearing more landmines in Saudi Arabia when his unit was ordered to don gas masks and ingest anti-nerve agent pills to safeguard themselves against the potential of chemical warfare. Chemical alarms went off at one point, according to Ybarra, in an area where he witnessed "dead, burnt bodies and body parts" on what was widely known as the "highway of death."

In May 1991, according to his certificate of discharge from active duty — a form known as a DD214 — Ybarra returned to Phoenix and was honorably discharged two years later as a lance corporal.

He was awarded at least a dozen medals and campaign badges during his service, including two Kuwait Liberation Medals, a Southwest Asia Service Medal, and a rifle sharpshooter badge.

PTSD terrors & drug problems

When Ybarra returned home, however, there were a number of things different or strange about Ybarra's behavior, according to his then-wife, Monica Perez, and his mother.

"When George came back from Desert Storm, he would have night terrors. He would tell me stories about pushing dead bodies off the side of the road. He would have flashbacks and episodes," said Perez, who married Ybarra in 1987, two years after his enlistment and four years after they met each other in high school. They have three children together — George, Jr., 31; Zabrina, 28; and Karista, 24.

"I didn't understand what he was going through. Nobody wants to admit they have a mental health problem," said Perez, 49, who divorced Ybarra in 1994 and lives in east Phoenix. "I didn't know what PTSD was. Nobody did back then. And it became too much for me. I thought he was going crazy, and that was the reason we split up."

Using data from a 2008 RAND study, the Department of Veterans Affairs estimates that PTSD affected approximately 10-12 percent of Gulf War veterans, along with between 27 and 31 percent of Vietnam War veterans, both of which are considered by many to be conservative estimates. In 2012, the VA released a study in which it said close to one-third of Iraq and Afghanistan War veterans — nearly 250,000 at that time — who had visited VA hospitals since 9/11 were diagnosed as having PTSD.

And according to a 2014 report released by the Institute of Medicine, 47 percent of veterans diagnosed with PTSD in 2013 after serving in Iraq and Afghanistan did not receive treatment.

Ybarra's mother, Esperanza Lopez, said that — once she learned that Ybarra had become addicted to cocaine and crystal meth after his return from active duty — she begged her son to seek mental health treatment through the VA in Phoenix. He refused, she said, prompting her to visit the VA hospital and ask them to force Ybarra into some sort of counseling or treatment program.

"They told me that he's an adult. He has to make his own decisions," Esperanza Lopez, 73, said in Spanish as her former daughter-in-law, Monica Lopez, translated. "One person told me that, since George disputed that there was anything wrong with him, I could be arrested and sent to jail for slandering him. So, I stopped asking the VA to help him."

Convicted & deported

Although he maintains he's a U.S. citizen by birth, Ybarra — despite his service as a Marine — has not exactly been a model citizen at times.

Beginning in 1992, after his return from the Middle East, Ybarra found himself in trouble with the law, and he was charged and convicted in a pair of cases for drug possession and sales. He was sentenced in 1995. Following his release from state prison in 1999, Ybarra was deported to Nogales, Son. — voluntarily.

ICE moved to deport him because of the felony convictions. He was held at the Florence detention center for nine months before Ybarra was finally persuaded to voluntarily deport himself, which  — needless to say — would later complicate his application for a certificate of citizenship.

"I can tell you that when George accepted the deportation, he felt like he had no choice," Parra said. "He felt like he did not have an avenue of immigration relief for his pending deportation. It wasn't until 2010 (when Parra was enlisted by a nonprofit immigrant rights group to take on Ybarra's case) that he gained a better understanding of the immigration relief that he could claim on the basis of the complexity of acquisition of citizenship laws."

"Unfortunately, he was never fully informed of the immigration consequences," Parra continued, noting that it wasn't until 2010, in a landmark case before the U.S. Supreme Court, Padilla v. Kentucky, that criminal defendants had a right to know those implications. "There are people in George's shoes seeking to reopen their cases and set those aside on the basis of not fully understanding the immigration consequences."

Within days of his voluntary deportation, Ybarra had re-entered the U.S., which was much easier than anyone might think.

After his mother mailed him his driver's license and military ID, Ybarra says, he re-entered through the Nogales port of entry after a Border Patrol agent and fellow Marine Corps veteran waved him through. He then rode a Greyhound bus back to Phoenix.

He was picked up after just a few days, according to Parra, and charged with felony re-entry, though he later pleaded guilty to a misdemeanor.

Now marked as a "criminal alien" and with one deportation already under his belt, Ybarra's mental health continued to decline.

He also struggled to get treatment for his injured right hand, partially disabled during a training exercise during Desert Storm. Doctors did, at one point, surgically place pins in the hand. However, the VA refused to treat him on multiple occasions, Ybarra said. At one point, he was allegedly told that the VA does not treat "criminal aliens."

TucsonSentinel.com made multiple attempts to review Ybarra's medical records after providing the VA with two privacy waivers signed by Ybarra, but officials never produced the requested records. The VA did not provide any comment for this report.

For a stretch of years in the 2000s, court records show that Ybarra's only legal troubles were a handful of traffic infractions, including driving on a suspended license and not having current vehicle registration. In 2009, he was convicted for possessing drug paraphernalia and sentenced to a year in prison, serving just a few months before being released.

As his mental health deteriorated and his substance abuse exacerbated, Ybarra was also dealing with ICE's efforts to deport him, according to Ybarra and his family.

Fired rifle at police

It all culminated on the afternoon of Aug. 12, 2011, when Ybarra called a 911 dispatcher, claiming that someone driving a truck around the neighborhood was attempting to kidnap his son, George, Jr.

Ybarra claims that the dispatcher refused to help him and was, instead, adversarial.

Ybarra hung up on the dispatcher, changed into a set of BDU fatigues, and, remaining barefoot, kept his .22-caliber rifle close by.

When two uniformed Phoenix police officers arrived in response to Ybarra's 911 call, his mother went to the door to answer it, but Ybarra grabbed his rifle, moved his mother out of the way, and shot twice through a window in his front door.

After the shots, according to Esperanza Lopez, Ybarra immediately dropped the weapon and cried out, "I'm sorry! I'm sorry!"

Within minutes several police units descended upon the scene, eventually negotiating Ybarra's surrender.

"They had their guns drawn, aiming them at both George and me," Esperanza Lopez recalled, crying. "It was the worst experience of my life."

Parra, a fellow Marine and Desert Storm veteran, says that he was initially angry with Ybarra for the aggravated assault conviction.

"I told George that I was really disappointed in him because we had a deal," Parra said. "The deal was that he was going to seek counseling on his own or with the help of his family, and he was going to stay out of trouble and deal with his mental health issues while we sorted out the immigration issues. That didn't happen and it was a concern to me."

"I should have shown a little more empathy toward George," Parra said. "George and I come from very similar backgrounds. We relate to each other. And I cannot let this happen to a fellow veteran without doing all I can to prevent it."

Parra said that, once they spoke in 2012 as Ybarra was facing sentencing, Ybarra expressed regret over the incident, "and he did tell me he really messed up, and he apologized to me for that."

Derivative citizenship complicates case

Besides Ybarra's criminal record, the complication in his deportation case, according to Parra, is that Esperanza Lopez spent years seeking citizenship for both herself and her son through the onerous naturalization process, rather than by simply requesting certificates of citizenship, which Parra argues both were always entitled to receive. Instead, Esperanza was finally granted citizenship through naturalization in 1996.

"People are not made aware of the process to gain their citizenship if it is derivative," Parra said. "The government just does not do enough to educate people in this area."

In a 2014 report, DHS estimated that from 1980 to 2013, there were nearly 1.5 million people, most of them children, eligible for derivative citizenship.

However, there are signs that immigration officials may fail to consider valid citizenship claims.

In one of the most ignominious cases, Mark Daniel Lyttle was detained and deported to Mexico in 2008 despite substantial evidence that he was a U.S. citizen. Lyttle was born in North Carolina, and suffered from bipolar disorder and cognitive disabilities, but in spite of this, he was referred to ICE as an undocumented immigrant from Mexico. This happened "even though he had never been to Mexico, shared no Mexican heritage, and spoke no Spanish," said the American Civil Liberties Union in a press release regarding the case.

ICE detained him for 51 days and then, the ACLU said, ICE agents "coerced" Lyttle into signing a statement that he was from Mexico, and he was eventually deported. Lyttle spent four months wandering through Central America before a U.S. embassy official in Guatemala secured a passport and Lyttle was able to return to the United States.

The ACLU filed a lawsuit, and a judge agreed that Lyttle was improperly deported. In 2012, the federal government settled, and agreed to pay $175,000 in damages and the case against Lyttle was closed.

ICE itself acknowledged the complexity of citizenship cases in a 2009 memo.

In the memo, John Morton, the assistant secretary of ICE, wrote that, "As the Immigration and Nationality Act provides numerous avenues for a person to derive or acquire U.S. citizenship, ICE officers, agents and attorneys should handle these matters with the utmost care and highest priority."

"As a matter of law, ICE cannot assert its civil immigration enforcement authority to arrest and/or detain" a U.S. citizen, Morton wrote.

And, after evaluating the claim, Morton wrote, "if evidence of U.S. citizenship outweighs evidence to the contrary, the individual should not be taken into custody."

"ICE's policy is if they have any hint that someone is a U.S. citizen, they need to investigate. That investigation is supposed to determine if the person is a U.S. citizen and if so, they're supposed to release him," said Ira Kurzban, an immigration attorney based in Florida, who wrote an immigration sourcebook for the American Immigration Lawyers Association.

However, immigration law and derivative citizenship is "very complicated," Kurzban said. Some cases depend on the nation of origin's own laws, and in some cases — for instance, for people who were born in Jamaica — immigration officials have changed their opinions on what makes someone a citizen, he said.

"The problem is, the agency wants clear and incontrovertible proof, and they're not willing to go the extra mile to get it, and they put the burden on the alien or citizen when necessary," he said. "But it's self-defeating, a lot of the people are detained, and a lot are poor, so they don't have access to documents, and they don't have access to a lawyer.

"ICE officers don't necessarily understand the law, and they don't want to take the time to figure out the law, and they don't want to spend time chasing down documents to prove this person's case," Kurzban said.

ICE detaining U.S. citizens for deportation

On July 31, the Deportation Research Clinic at Northwestern University published an analysis of federal data and found that the government has detained more than 260 U.S. citizens.

From January 1, 2011 to June 9, 2017, immigration judges rescheduled hearings for 1,714 deportation cases because the targeted person claimed U.S. citizenship. In about 38 percent of cases, immigration authorities had to allow the person to stay in the United States, either because the case was terminated, closed administratively, or some other version of relief was available.

On average, people who successfully claimed citizenship, or otherwise had their case terminated under this rule, spent 181 days in ICE custody.

"So the detention of U.S. citizens as aliens today is not just possible but remains a fact," wrote Jacqueline Stevens, a professor of political science at Northwestern University. She also wrote that Morton was aware of this possibility. "This is part of a long history of ICE dissembling on this embarrassing fact," Stevens wrote.

"This happens because attorneys aren't assigned in removal proceedings, and there's little to no oversight in the agency," she said, during a phone interview with TucsonSentinel.com.

ICE's policy should favor release if there's any doubt, she said. However, after filing a Freedom of Information Act request, she found that the agency is "grappling" with internal protocols that work in the opposite way. Instead of requiring the agency to investigate claims of citizenship, it appears that unless someone provides strong, conclusive evidence that they belong in the United States, ICE officials will pursue a deportation. And that's at odds with Morton's 2009 memo.

"These protocols are not the ones in the Morton memo, and they're secret and unconstitutional," Stevens said. "It's very clear that ICE is grappling with two different criteria."

Stevens also argued that the agency used the detention system to make a legal finding, by coercing a person to capitulate his citizenship claim using mandatory detention. Even if people could win a case, they might be convinced to abandon their citizenship claim after months of detention, especially after they already served time in prison or jail.

And because DHS can appeal, even if someone wins their case they may stay locked up for months, until they agree to be deported, she said.

When asked to comment on Ybarra's case or the issue of detaining and deporting those with derivative citizenship, an ICE spokeswoman declined, saying the agency does not comment on such cases for privacy reasons.

When DHS appealed Judge Phelps' ruling, prosecutors argued that Esperanza Lopez did not establish that she was, in fact, a citizen at birth — despite her father's confirmed citizenship and proof that Esperanza had lived most of her life in Arizona, including the past 47 years in south Phoenix.

If a judge agreed with DHS, that would effectively nullify Ybarra's claim to derivative citizenship. The thrust of DHS' claims angers Parra.

"I think the argument that (DHS) is making is not looking at the full record. George deserves for them to look at the full record," Parra said. "The immigration jacket, if you will, the immigration file that the government has is not complete."

"Veterans who are suffering, who have battle scars, should be given the opportunity to present that mitigation evidence to immigration enforcement and prosecutorial entities," Parra added. "This is a decorated war veteran, a decorated Marine that we're talking about, and he deserves better. He deserves for the government to act with complete diligence with respect to his claim of citizenship."

While Ybarra is now in custody in Eloy, Parra says that he will be working with the Florence Project, a nonprofit that provides free legal services to those held in ICE's facilities in Arizona, as well as the American Immigration Lawyers Association, "to gear up for the fight that's ahead of us."

If federal prosecutors are able to successfully argue that the time to grant Ybarra his citizenship has passed, as Parra fears they will, then arguing for Ybarra's deportation based on his criminal record — particularly the aggravated assault conviction — is "a slam-dunk case for the government."

According to the Justice Department's Executive Office of Immigration Review, which adjudicates immigration cases, a federal judge administratively closed Ybarra's deportation case in March 2012, two months before he began serving his time in state prison.

Therefore, though Ybarra will remain in ICE custody unless a federal judge again orders his release, no deportation order is pending because that proceeding has yet to be concluded. To deport Ybarra, DHS lawyers will have to file to reopen the case, which Parra expects will happen in the next few days.

Ybarra said that while he is confident that Parra will prevail in his case, he and his family are tired of hoping for his citizenship to finally be granted. Instead, Ybarra said, they are consumed with a desperate sense of betrayal by the U.S. government.

"I've got a lot of anger, a lot of anxiety over this," he said. "They know I'm a citizen, they know I'm a combat veteran. I don't see where they've ever shown that they care."


Reporter Joe Watson served in the U.S. Navy Reserve, and was released from ADOC custody this summer after completing a 12-year sentence.

[CountDeMoney]

You guys think Siegy has been deported yet?


Siegebreaker Deported to Tunisia
Claims he's not from there

[Ancient Demon]

Speaking of ICE, they are a disgrace.

http://www.tucsonsentinel.com/local/report/082517_marine_deportation/decorated-marine-vet-may-deported-despite-likely-us-citizenship/

Do you have another source for that? Unless I'm missing something, it seems absurd.