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You Say You're An American, But What If You Had To Prove It Or Be Deported?

Palma's mother, Rita, stands outside the family's house in El Paso. She says her son was born in Ciudad Juárez, Mexico, because she did not have enough money to give birth at an American hospital.

When he was in prison, Lorenzo Palma strongly suspected he was an American citizen. He had spent his whole life in the United States, and he knew his grandfather was born in El Paso, Texas, in 1914.

Palma had served five years for an assault conviction and was about to be released on parole, but immigration officials had stopped his release because they wanted to deport him. They said he wasn't a U.S. citizen.

So in the summer of 2014, Palma found himself among dozens of inmates about to face an immigration judge in Huntsville, Texas. "They would sit us by groups of 10 and they would start deporting left and right," he said.

Getting the paperwork to prove his citizenship was hard: He didn't have money to call his mother in El Paso, Texas, so he was forced to send letters asking her to find the documents.

When it was Palma's turn in court, Judge Richard Walton was short. Palma tried to explain that he was an American. But Walton simply asked Palma if he wanted time to get a lawyer; Palma said yes. Court recordings obtained by NPR show that Palma then softly asked Walton what his chances were of staying in the country.

"Are you a gambling man?" Walton asked. "If I told you [that] you had a 91 percent chance to stay, do you think that would be good? Because you still might fall into that 9 percent chance."

***

It's illegal for U.S. immigration authorities to hold Americans in detention.

However, an NPR analysis of data obtained through a Freedom of Information Act Request shows that hundreds of American citizens each year find themselves in a situation similar to Palma's. Those data show that from 2007 through July of last year, 693 U.S. citizens 1 were held in local jails on federal detainers — in other words, at the request of immigration officials. And 818 more Americans 2 were held in immigration detention centers during that same time frame, according to data obtained through a separate FOIA request by Northwestern University professor Jacqueline Stevens and analyzed by NPR.

To be sure, the numbers represent a tiny percentage of all the cases reviewed by Immigration and Customs Enforcement, but advocates say holding even a single U.S. citizen should not be tolerated.

"I think it's a lack of commitment to the rule of law," Stevens said. "It's worse than that."

A separate NPR review of court records showed that in dozens of similar cases, Americans asserted their citizenship only to be sucked into a system they should have never been a part of. Some were held for days; others, for months. Some were denied bail, and most were denied a court-appointed lawyer.

In the U.S., people accused of crimes have an automatic right to an attorney. But those accused for the first time of entering the country illegally actually face civil — not criminal — charges, so they don't have a right to court-appointed legal counsel, making the process of proving they're American that much harder.

Immigration and Customs Enforcement declined NPR's request for an interview. But an official speaking on background said the agency takes claims of citizenship seriously and has already set up mechanisms, such as an 800 number, to prevent this from happening. This is a complex problem, the official said, and many times individuals might not even know they're citizens when they're picked up by immigration.

"It is more common for ICE to encounter people who attempt to avoid removal by falsely stating they are U.S. citizens," the official said.

What's more, the official said it is not that agency's job to determine citizenship. Instead, a final determination is made by immigration judges and, on appeal, by federal judges.

Still, even though it's unlawful for American citizens to be held in ICE-ordered detention, neither local authorities nor immigration officials treat these cases any differently than they would a case involving someone who is truly in the country illegally.

Stevens said ICE should be accustomed to complex issues. The agency has no problem, she said, scouring thousands of local jails for the kinds of immigrants it wants to deport but seems incapable of quickly determining citizenship.

"That's the 900-pound gorilla," Stevens said. "If even U.S. citizens who have the full rights of due process provided by the Constitution do not have an ability to prove their U.S. citizenship and are deported or are detained for months on end or indefinitely trying to prove this, then that's a symptom of something gone seriously wrong with our detention and deportation system."

***

Palma spent much of his time in jail writing to attorneys trying to persuade them to take his case pro bono. No one replied, but he caught a break in September 2014, when his case was moved from Judge Walton's docket to that of Judge Saul Greenstein.

During routine questioning, Greenstein became intrigued by Palma's claim that his grandfather had been born in El Paso. He asked ICE's lawyer to investigate and for Palma to get the birth certificate to prove it.

At a hearing a month later, the judge asked the lawyer, John McPhail, what he had uncovered. McPhail said Palma had not turned over any evidence to prove he was a citizen, according to courtroom audio recordings.

Palma was stunned. His mother had sent him a battered copy of his grandfather's birth certificate, and he had turned it over to immigration weeks ago.

"Well, I couldn't do nothing no more. ... This is the end of the road. I have to get deported," he later recalled thinking.

But Greenstein pressed McPhail, making him sift through a folder full of documents once again. For about a minute on the recordings, there's the sound of papers shuffling, and then McPhail says, "Birth certificate for Lazaro Palma."

Palma pipes up — there's relief in his voice — "Yeah, that's my grandfather!"

"And Mr. McPhail, why is the government asserting that the respondent provided no useful information with respect to any acquisition claim?" the judge asked.

"This information came in subsequent to the interview, and the agent did not update the interview," McPhail replied.

"Well, that's really problematic isn't it?" Greenstein said.

McPhail's response belied the obstacles and complexities of the case still ahead.

"It can be resolved," he said.

McPhail did not respond to multiple requests for comment.

***

Some cases don't involve having to dig up documents involving grandfathers and parents. They should be much simpler.

The case of Gerardo Gonzalez Jr., for example, underpins a class-action lawsuit filed by the American Civil Liberties Union against Immigration and Customs Enforcement in Southern California.

Gonzalez, who was born in the Pacoima neighborhood of Los Angeles, was arrested in December 2012 and charged with possession of methamphetamines. According to court records, someone in the Los Angeles Police Department or the Los Angeles Sheriff's Department mistakenly wrote that he was born in Mexico. ICE issued a detainer request, and Gonzalez languished in pretrial detention for months, because at the time, the sheriff's department had a policy of not allowing people with detainers to bond out.

Then there's the case of Ricardo Garza, a naturalized U.S. citizen.

Garza was arrested on suspicion of drunken driving last year in Grand Prairie, Texas. Usually, a person would post bond and be released to await trial.

But as Garza was leaving jail, someone asked him where he was born. He said Mexico but that he was now a U.S. citizen. ICE asked the jail to hold him while agents investigated. Garza, who was transferred to Dallas County Jail, ended up spending more than a month behind bars because of the detainer.

"He lost his car; he fell behind on his bills," said Garza's lawyer, Eric Puente. "Had he been indigent, who knows what would have happened to him."

Puente said his client was never given an opportunity to prove he was a U.S. citizen. When you're locked up, it's hard to dig up a birth certificate or a passport or, in Garza's case, request a naturalization certificate from immigration.

"I don't think there should be any tolerance for systemic violation of anybody's constitutional right," he said. "If there is a chance that anyone's constitutional rights are going to be violated, then that problem should be addressed and it shouldn't exist."

After Puente took Garza's case, he found about a dozen other people in similar situations. So he decided to join in filing a federal civil rights suit against Dallas County.

***

In July 2015, about a year after his immigration ordeal began, Palma was in front of Judge Greenstein once again and appeared to have lost all hope. He had turned over his grandfather's birth certificate more than eight months ago, but the government wanted more proof.

Greenstein explained that the law required Palma to prove not just that his grandfather was a U.S. citizen, but that he had lived in the United States for five years after the age of 17. The judge also intimated that the government could drop the case at any time.

Greenstein tried to help Palma. During a previous hearing, he called Palma's mother, Rita, to get some of the facts straight. She cried on the phone that day, haunted by a decision she made when Palma was born.

She said she had been living in El Paso and didn't have enough money to give birth at an American hospital. So she crossed the international footbridge, and her son was born in Ciudad Juárez instead of in El Paso, where he would have been issued a U.S. birth certificate just like the one his grandfather had gotten decades earlier.

But Palma still needed hard proof of his grandfather's history.

He told Greenstein that he knew his grandfather had been born to Mexican immigrants living in El Paso. He knew his grandfather lived in the United States for many years and moved around from state to state as a migrant farm worker. Palma had tried to find proof of residency from the Census Bureau, but the bureau wanted to charge him $40 he didn't have.

And he couldn't afford a lawyer. Palma said every pro bono attorney he had called was too busy to get back to him. Digging up records from the 1930s and '40s on his own seemed impossible.

That day in July, Palma considered signing a deportation order.

"Sometimes I feel like signing, just throwing in the towel," he told the judge. Greenstein offered to call a lawyer for him, but then Palma ran into some incredible luck.

Stevens, the Northwestern University professor who also runs a law clinic focused on just this kind of case, was in the courtroom watching the proceedings for research purposes. "I believe that he would have that day signed that paper to be deported had we not encountered each other," she said.

That day, Stevens agreed to help Palma.

***

In her office, Dallas County Sheriff Lupe Valdez has a framed picture of her and President George W. Bush. She was once a customs agent, and a certificate on the wall shows she was a founding member of the Department of Homeland Security.

She likes to say she is proud of her collaboration with the federal government on a whole host of issues, including immigration.

But she also prides herself on what she says is "common sense" law enforcement. In 2015 — just before Puente and his fellow attorneys announced they were suing Dallas County and Valdez — she announced her jail would change the way it deals with those ICE requests. As the press reported it at the time, she said that rather than honoring all hold requests, she would review holds for minor offenses on a case-by-case basis.

In some ways, Valdez was grappling with the same kinds of choices many of her fellow law enforcement officials face: how to balance stricter enforcement of immigration laws with the protection of civil rights.

She got heat from both sides: Texas Gov. Greg Abbott went on national television and accused her of protecting dangerous immigrants, and Puente said she should stop obeying federal detainer requests altogether.

Valdez, a tough Texas Democrat who always wears her uniform and is known for her directness, shrugs it all off.

She recalls that when her brothers were young and went out past sunset in San Antonio, officers would ask them for proof that they were American. On at least one occasion, she said, an officer took her brother's ID and threw it on the ground, like it was impossible that a brown man in Texas belonged in the U.S.

So she is sensitive to this issue.

"Aren't we all?" she said. "Why would you want to send an American somewhere else?"

Valdez said U.S. citizens weren't being held in her jail. But NPR's analysis found seven cases in Dallas County.

"We handle 500 pieces of paper an hour," she said in response. "So you've got humans moving paper — all kinds of paper — including immigration. So I'm not gonna say that there will never be human error, but I think we catch it pretty fast."

***

Back in 2011, Stevens warned that the United States was holding and sometimes deporting potentially thousands of American citizens a year.

ICE had previously told Stevens that it didn't keep national records on the number of U.S. citizens it detained or deported, so she reviewed the records of select immigration courts across the country and extrapolated that in 2010 alone, more than 4,000 U.S. citizens were detained or deported. Her research was published by the Virginia Journal of Social Policy & the Law in July 2011.

Later that year, immigration authorities set up the 800 hotline for people to call if they believed they were U.S. citizens. That number is now printed on a notice that is supposed to be automatically given to every person being detained.

NPR's analysis shows that since the hotline was put in place, however, Americans continue to be held at about the same rate. In the ACLU class-action lawsuit, attorneys estimate that the number of Americans who might have been held illegally during a four-year period could total 21,000. That estimate, it's worth noting, includes other immigrants who are not citizens but are in the United States legally.

Stevens says the numbers don't surprise her because she views this as a historical problem.

From the 1930s to the 1950s, the United States deported hundreds of thousands of Latino Americans. The descendants of that era, she said, keep showing up in immigration courts.

In fact, when Stevens and R. Andrew Free, an attorney who collaborates with her law clinic, looked through records, they found a document from 1950. It showed that Lorenzo's grandfather — even though he was born in El Paso — told U.S. immigration officials that he often waded across the Rio Grande for fieldwork because he feared his birth certificate wasn't good enough.

The U.S., Stevens said, has systematically made brown people feel less than American.

"John McCain was born in a military base in Panama," she said. "When he came to the United States, nobody said, 'Hey, you're foreign-born. Here's a green card.' And yet the children of U.S. citizens who are born in Mexico and Latin America don't experience themselves as U.S. citizens in part because of the encounters at the border."

To Stevens there's only one fix to this historical wrong: Give everyone in immigration court the right to a court-appointed attorney.

But Jessica Vaughn, director of policy studies at the Center for Immigration Studies, worries that those kinds of solutions could "mistakenly ... make it impossible for ICE to do its job."

"My concern is that the remedy that the advocacy groups are pushing for would cause more errors in the other direction," she said. "In other words, it could result in more people who should have been kept in custody, who instead get released and then go on to cause harm or flee from immigration proceedings or otherwise thwart immigration enforcement."

***

From the the edge of El Paso, midway up the hills, you can see deep into Mexico. You can see the dry, brown undulation of the Chihuahuan Desert. El Paso is a city that straddles the border and where the idea of who is American — and even what is America — has been negotiated for more than a century.

It's a history that goes all the way back to the mid-1800s, when Mexico ceded half of its territory to the U.S., which promised its new citizens full civil rights.

As Palma drives through the city, he stops at a little house just north of downtown El Paso. A phone directory from the 1930s showed that his grandfather lived there.

As soon as Stevens agreed to help, Palma's case sailed through the courts. Palma met Stevens in July; she then linked him with Free, who took the case pro bono, and by January, Judge Greenstein had found that Palma's mother had acquired U.S. citizenship through Palma's grandfather.

His ruling affirmed that Palma and his mother were U.S. citizens from the day they were born.

It meant that on Jan. 5, 2016, after almost two years in detention, Palma was finally set free.

Palma says he always felt American. But he didn't know a lot about his family's history in the U.S. or about immigration law. His mother, Rita, didn't either. She worked for years thinking she was in the country illegally before she applied and received permanent residency cards for her and her sons in 1984.

In 1994, Palma got in trouble during a melee at school. As he describes it, a student was stabbed and Palma ended up pleading guilty to aggravated assault. He was sentenced to a 10-year deferred adjudication, but in the midst of all that, one of his cousins, also a permanent resident, was deported after he was convicted of a felony.

Palma says he panicked out of fear that he, too, would be deported, so he stopped showing up to meetings with his parole officer.

He spent years on the run until he was stopped by police in New Mexico in 2010. For violating his probation, he was sentenced to seven years in jail, giving immigration the option to revoke his residency and deport him.

Palma says he feels like he has paid his debt to society and is trying to put his life back in order. But he's still afraid that one day, somewhere along the border, an immigration officer will once more ask him to prove that he's American.

"I'm blessed that I'm out," he says. "I'm blessed for the people that helped me. I'm blessed, but I feel that the system is not on the right track. They just do whatever they want to do to you."

NPR's Zyma Islam and Tyler Fisher contributed to this report.


1. This figure is a count of all detainers issued by ICE to local law enforcement agencies from Oct 1, 2007, to July 19, 2015, that were "lifted," or resolved, with the outcome "United States Citizen Interviewed." Return to text.

2. This figure is a count of all persons who claimed to be U.S. citizens and were marked as having been "detained" in ICE cases completed from Oct 1, 2007, to July 19, 2015. The final outcome in these cases was listed as "terminated," meaning that the person detained was found to be a U.S. citizen. Return to text.

The methodologies used can be found here.

Copyright 2016 NPR. To see more, visit http://www.npr.org/.

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