U.S. citizens wrongly detained, deported by ICE Immigration Law

56786 Hector Veloz, at his aunt's home in San Marcos, California on Friday, May 29, 2009. By JOSHUA GATES WEISBERG/SPECIAL TO THE CHRONICLE 56786 Hector Veloz, at his aunt's home in San Marcos, California on Friday, May 29, 2009. By JOSHUA GATES WEISBERG/SPECIAL TO THE CHRONICLE Photo: Joshua Gates Weisberg, Special To The Chronicle Photo: Joshua Gates Weisberg, Special To The Chronicle Image 1 of / 9 Caption Close U.S. citizens wrongly detained, deported by ICE 1 / 9 Back to Gallery

The son of a decorated Vietnam veteran, Hector Veloz is a U.S. citizen, but in 2007 immigration officials mistook him for an illegal immigrant and locked him in an Arizona prison for 13 months.

Veloz had to prove his citizenship from behind bars. An aunt helped him track down his father's birth certificate and his own, his parents' marriage certificate, his father's school, military and Social Security records.

After nine months, a judge determined that he was a citizen, but immigration authorities appealed the decision. He was detained for five more months before he found legal help and a judge ordered his case dropped.

"It was a nightmare," said Veloz, 37, a Los Angeles air conditioning installer.

Veloz is one of hundreds of U.S. citizens who have landed in the custody of U.S. Immigration and Customs Enforcement and struggled to prove they don't belong there, according to advocacy groups and legal scholars, who have tracked such cases around the country. Some citizens have been deported.

By law, immigration authorities have jurisdiction only over noncitizens. Citizens, whether native-born or naturalized, cannot be deported.

As ICE increased its collaboration with state and local police and prisons under changes to immigration laws and policies in recent years, some detainees who have had a run-in with the law drop through a trapdoor from the criminal justice system into deportation proceedings.

In immigration detention it falls to the detainees to prove their citizenship. But detainees don't have the constitutional protections, such as the right to legal counsel, that would help them prove their case.

And many of those who wind up in immigration custody are frequently those who might have the most difficulty proving their citizenship. Many were born abroad and acquired citizenship through a U.S.-born parent, like Veloz, or a parent who became a naturalized citizen. Some have mental health problems. And frequently they are poor, as those who can afford a lawyer get out more quickly.

"These are people who are the most vulnerable," said Judy Rabinovitz, deputy director of the ACLU Immigrants Rights Project. "People are being locked up without bond hearings, often for long periods."

A growing chorus of legal experts says these detentions are unconstitutional.

"The constitution is the same that applies to U.S.-born citizens as to naturalized citizens," said Sin Yen Ling, an attorney at San Francisco's Asian Law Caucus. "Detaining these folks is creating a third category of people with a different set of rights."

Immigration and Customs Enforcement officials insist they would never knowingly detain or deport a U.S. citizen.

Asked about citizens winding up in immigration detention, Homeland Security Secretary Janet Napolitano, who oversees ICE, told The Chronicle: "We're always concerned about that. If there's an error made, we want to rectify it as soon as possible."

In April, after The Chronicle reported on a Modesto man in immigration detention, ICE released him and dropped its deportation case against him. Douglas Centeno was born in Nicaragua but derived citizenship when his father naturalized while he was a boy. He was jailed for four months.

A lack of rights

People charged in the criminal justice system have a range of constitutional rights, including the right to a speedy and public trial before an impartial jury and the right to legal counsel even if they can't afford to hire a lawyer. Criminal detainees have the right to a telephone call, to be brought before a judge, usually within 48 hours, and to be told of the charges against them.

Immigration matters, however, are civil, not criminal, so those protections do not apply. Still, the U.S. Constitution is designed to protect citizens from detention without due process. But citizens in immigration detention are not being afforded that due process, advocates say.

Immigration detainees are routinely shipped to remote jails where free legal aid is unavailable, their families are not notified of their whereabouts, and they are often denied access to telephones, mail and even medical care, according to a March report by Amnesty International and several federal audits.

"Throwing people into a system where they're sitting 3,000 miles away without a lawyer and trying to prove they're a citizen - they're making people make their arguments with two hands tied behind their back," said Nancy Morawetz, a professor at New York University School of Law and an expert on deportation law.

In January, Napolitano ordered a full review of ICE detention and removal operations. ICE spokeswoman Cori Bassett said she did not know when the review would be completed or whether its findings would be made public.

Immigration officials must balance civil liberties against security concerns, some observers say, and wrongful detentions are rare.

"ICE is not going to pursue anyone unless they can really justify the cause for it," said Janice Kephart, national security director at the Center for Immigration Studies in Washington, D.C.

Fighting the system

That's not what happened to Hector Veloz.

Before his birth, Veloz's U.S.-born father was sent to Vietnam, so his pregnant mother stayed with relatives in Mexico and Veloz was born there. Months later, the family returned to the United States and has lived here since.

Veloz was automatically a citizen at birth, though his parents never obtained his certificate of citizenship.

In 2006, Veloz was convicted of receiving stolen property after purchasing a car that had been stolen. He served eight months and was about to be released from prison when he was turned over to ICE.

"I said, 'I'm a U.S. citizen, why am I being put through deportation?' " he recalled.

At the ICE prison in Arizona, the paperwork stated that he had entered the country illegally and that his father was a Mexican citizen.

"It was all incorrect information," Veloz said.

Immigration lawyers say locking up Veloz and others like him violates the 1971 Non-Detention Act, which says the U.S. government cannot detain citizens without an act of Congress.

ICE's presumption that everyone in immigration custody is an alien undermines the act, said Holly Cooper, a professor of immigration law at UC Davis.

"The system is set up so even if they believe you, you have to prove it in court. It could take six months to five years to prove it and you're detained in the meantime," said Cooper, who helped Veloz win his freedom on appeal. "You give up your citizenship at the prison door."

Tough to prove

A person who is born abroad to U.S. parents, as Veloz was, is a citizen at birth. And a foreign-born child automatically derives citizenship when a parent naturalizes, though they may not realize it. Without documentation at hand, or an attorney's help, however, it can be tough to prove.

"I don't carry my birth certificate around with me and I bet you don't," NYU's Morawetz said. "ICE ought to know the law. Individuals might not, but the government is supposed to. They're the experts."

ICE's Bassett said that officials work hard to ensure that they deport only aliens. In rare instances, she said, the government might detain an actual U.S. citizen because that person claimed to be an alien.

"With somebody who misrepresents their true identity and makes a false statement to an ICE officer, it creates a problem for the government and for themselves," she said.

The number of people in detention has tripled over the past dozen years. Immigration authorities now detain more than 400,000 people a year. Analysts say that is leading to more citizens wrongly detained by ICE.

A study by the nonprofit Vera Institute, conducted for the U.S. Justice Department's Executive Office of Immigration Review, found more than 700 people at several detention facilities between 2006 and 2008 who said they planned to pursue claims of U.S. citizenship.

Jacqueline Stevens, A UC Santa Barbara professor of law and society, said she had identified 160 cases of people who had been detained or deported but whose U.S. citizenship was later affirmed by the federal government or a jury. And several immigrant legal aid groups have helped free dozens of other citizens in recent years.

In addition to U.S. citizens, there are other inmates in immigration detention who may not be deportable, legal analysts say. They include lawful permanent residents who have committed crimes that are not grave enough for deportation, and asylum seekers locked up until their cases are decided.

The fact that citizens are imprisoned in a system designed to deport them points to potential problems for these other detainees, said Chuck Roth, litigation director for the National Immigration Justice Center in Chicago.

"If it can happen to U.S. citizens, you can imagine how few procedural protections are available to everybody else."

This article has been corrected since it appeared in print editions.

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