The DHS Has Been Using A Fake Mexican Constitution Article To Deport US Citizens For 35 Years

from the every-deportation-justifies-the-lie dept

We're used to our government's security and intelligence agencies telling lies in order to justify their actions. The Director of National Intelligence, James Clapper, has achieved a sort of infamy for his "least untruthful answer" in response to questioning. (Not that this infamy has cost him his job…) Others have performed linguistic aerobics ("not under this program," "relevant to…") to stretch the truth just enough to give their activities a thin veneer of legitimacy.

The DHS does it, too. However, when it lies, it goes big, and it plays a long, long con.

For more than two decades, Sigifredo Saldana Iracheta insisted he was a U.S. citizen, repeatedly explaining to immigration officials that he was born to an American father and a Mexican mother in a city just south of the Texas border.

Year after year, the federal government rejected his claims, deporting him at least four times and at one point detaining him for nearly two years as he sought permission to join his wife and three children in South Texas.

In rejecting Saldana's bid for citizenship, the government sought to apply an old law that cited Article 314 of the Mexican Constitution, which supposedly dealt with legitimizing out-of-wedlock births. But there was a problem: The Mexican Constitution has no such article.
NPR calls it an "error." Jeff Gamso, public defender and former criminal defense lawyer, calls it something else.
Our government's been lying to the courts about this since at least 1978 when the Immigration and Naturalization Service first invented Article 314 of the Mexican Constitution as a convenient way to deny citizenship to and thus deport American citizens.
The opinion from the Fifth Circuit Court of Appeals isn't as generous as NPR, either.
DHS officers and the Administrative Appeals Office (“AAO”) within DHS have relied on provisions of the Mexican Constitution that either never existed or do not say what DHS claims they say.
The DHS, however, was very generous towards its previously uninterrupted 35-year exploitation of a non-existent constitutional article.
Saldana's case was finally resolved earlier this month, when the 5th U.S. Circuit Court of Appeals dismissed the government's explanation of a "typo" and ruled that he had been a citizen since birth.
A "typo." That sounds familiar. The NSA used the same excuse for its collection of tons of domestic data when it claimed analysts accidentally entered US area codes rather than codes tied to foreign countries. It was a "typo," and the DHS never bothered to correct it for 35 years and then only because it was called out by a federal court.

And this isn't the only lie/error in the DHS' case. It also pointed to another article of the Mexican Constitution to deny Saldana's claims of citizenship -- Article 130. Fortunately, for the DHS, this article actually exists. Unfortunately for its hopes of barring Saldana from the country for the fifth time, what it says isn't anywhere near what is claimed.
The AAO also cited Article 130 of the Constitution of Mexico for the same proposition that the Constitution requires that parents be married in order for children to be legitimated. However, Article 130 provides only that marriage is a civil contract, as opposed to a religious one, and says nothing about legitimation or children.
Why would the government repeatedly lie in order to prosecute and deport legal US citizens? Gamso answers this question very succinctly.
Because it can.
It got away with this one for 35 years. Why should it stop? Three-and-a-half decades of reliance on a wholly fabricated article of a constitution it (correctly) assumed no one would actually bother looking up. In retrospect, it seems audacious. But the reality of the situation is that the government got away with a lie for more than three decades and that fact alone is enough to encourage it to deploy useful lies in any situation where it thinks misstating the facts will give it an edge or help it achieve its aims.



Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Rikuo (profile), Oct 9th, 2013 @ 5:48am

    Taking bets as to how many DHS officials will be punished. I offer 1 million to 1 odds that at least one will be, so get rich now!
    *Minimum bet $10,000, there is no guarantee of pay-out, all bets must be made to a Cayman Islands account to be provided later*

     

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  2.  
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    Anonymous Coward, Oct 9th, 2013 @ 5:51am

    The article almost makes it sound like lying to the courts means anything.

     

    reply to this | link to this | view in thread ]

  3.  
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    saulgoode (profile), Oct 9th, 2013 @ 6:05am

    Re:

    By "punished", I presume you mean placed in charge of the review panel investigating how the department can avoid such mishaps* in the future.



    * By "mishap", I mean having the public find out what they did, not what they did.

     

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  4. This comment has been flagged by the community. Click here to show it
     
    identicon
    out_of_the_blue, Oct 9th, 2013 @ 6:06am

    WHERE'S the tech or economics in this? Here's your charter:

    "the Techdirt blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow."

    Becoming only political kibitzing in unfocused "NPR" style.

     

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  5.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 6:08am

    Re:

    Well it does mean something.

    When YOU do it, you get the book thrown at you, along with the kitchen sink.

    Whent the GOVERMENT or its affiliates do it, "meh.. they made a mistake" and "Ok, i'll write that up as an easily circumvented (by the gov) law so we don't have to bother about this again"

     

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  6.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 6:23am

    I paid taxes on $1,000 income not $1,000,000 = typo.

     

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  7.  
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    Rikuo (profile), Oct 9th, 2013 @ 6:27am

    Re: WHERE'S the tech or economics in this? Here's your charter:

    Well for one, I'd imagine this is enonomics related because US citizens with skills that businesses are looking for might think twice about coming back to live within the US, now that it's known that the DHS will kick them out based on non-existent constitutional articles.
    Long story short, shut the fuck up, quit complaining and come back if (and this is a big if) you're hired to edit articles for Techdirt.

     

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  8.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 6:39am

    Re: WHERE'S the tech or economics in this? Here's your charter:

    Fool!

    There's the NSA in this story, so that covers tech.




    (But, notice that nothing in that sentence that you point out even hints that Techdirt is only about economics or tech...it covers much broader topics that, yes, may eventually have implications in the economy and the tech sector. But the scope of Techdirt is much broader. And, of course, such a broad scope makes your brain hurt, so you condensed it to "tech or economics". Unfortunately for you, reality isn't so simple.)

     

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  9.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 7:01am

    Fortunately, now we have the internet those lies will be difficult to pull now.

    This reminds me why the actions of Aaron Swartz God bless his soul, were/are so important, he put that knowledge into public domain so everyone could see it, we should do this to all laws in the world so everyone should be able to look up any law they are faced with.

     

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  10.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 7:14am

    Article 314

    Article 314, the old pie in the sky..

     

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  11.  
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    massmurdermedia, Oct 9th, 2013 @ 7:24am

    DHS

    The DHS has existed for only 11 years, so they can't take all of the credit.

     

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  12.  
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    Gwiz (profile), Oct 9th, 2013 @ 7:32am

    Re: WHERE'S the tech or economics in this? Here's your charter:

    WHERE'S the tech or economics in this? Here's your charter:


    Wahhhh! Cry me a river, Blue.

    It's Mike's blog and he has sole discretion over what it contains. Period. If you don't like it, the door is over there and don't let it hit you in the ass, k?

     

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  13.  
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    Pragmatic, Oct 9th, 2013 @ 7:43am

    Re: Re: WHERE'S the tech or economics in this? Here's your charter:

    Voted funny. Blue has already "applied" to TD for a remunerated writing position and been laughed off the comments section for her efforts.

     

    reply to this | link to this | view in thread ]

  14. This comment has been flagged by the community. Click here to show it
     
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 7:43am

    Techdirt fucking sucks.. Opps, Typo I meant to say I love Techdirt!

    My bad.

     

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  15.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 8:01am

    Re: WHERE'S the tech or economics in this? Here's your charter:

    I am a disaster of a troll, because I so rarely make any sense or even speak about the relevant subject

    There. I fixed your typo for you blue... those sure are infectious.

     

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  16.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 8:15am

    "Why would the government repeatedly lie in order to prosecute and deport legal US citizens? Gamso answers this question very succinctly.

    Because it can."

    It's a very charitable way of putting it. Charitable towards US citizens.
    If I was about to be taken away from my wife and kids, I like to think I'd bother to check out the legal basis of my deportation. I don't know, maybe show it to some lawyer.
    35 years. Bonkers.

     

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  17.  
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    btr1701 (profile), Oct 9th, 2013 @ 8:31am

    DHS

    How the hell can DHS have been deporting people under this bogus legal theory for 35 years if DHS itself has only existed for about a decade?

     

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  18.  
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    DCX2, Oct 9th, 2013 @ 8:58am

    Re: DHS

    While I get the point that just saying DHS is perhaps poor form on OP's part...come on, you know that immigration was not magically created in 2003 with DHS.

    Mr. Cushing, please consider changing the title to "The DHS/INS Has Been..." since INS was the agency that handled immigration before DHS.

    http://en.wikipedia.org/wiki/Immigration_and_Naturalization_Service

    Created 1933, dissolved 2003, the very same day ICE was created under DHS.

     

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  19.  
    identicon
    DCX2, Oct 9th, 2013 @ 8:59am

    Reminder

    The government is allowed to lie to you.

    It is a federal crime to lie to an employee of the federal government.

     

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  20.  
    identicon
    James, Oct 9th, 2013 @ 9:08am

    Seems like a massive fail on the part of several defense attorneys.

    "You're being deported under section 314 of the Mexican Constitution."

    Ummm. Let's fight this on the basis of, I dunno, anti-graffiti laws. Or something. I won't bother to actually look up the "law" my client is being deported under.

    WTF, lawyers?

     

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  21.  
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    btr1701 (profile), Oct 9th, 2013 @ 9:54am

    Re: Reminder

    > It is a federal crime to lie to an employee
    > of the federal government.

    That's not true. It's a crime to lie to a federal law enfrocement officer (GS-1811) who is conducting an investigation, about something material to that investigation.

    But just any old federal employee? The receptionist at the Department of Education? The park ranger at Yosemite? The museum docent at the Smithsonian? No, not a crime to lie to them.

     

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  22.  
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    Mike Masnick (profile), Oct 9th, 2013 @ 10:26am

    Re: Re: DHS

    Mr. Cushing, please consider changing the title to "The DHS/INS Has Been..." since INS was the agency that handled immigration before DHS.


    We had discussed this internally. We left it as DHS because the court refers to DHS.

     

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  23.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 10:29am

    Re: Re: WHERE'S the tech or economics in this? Here's your charter:

    This explains ICE, Copyright, Patent law, several wars, financial system, energy policy, trade agreements, foriegn policy and pretty well anything else. Gulf of Tonkin, anyone?

    "But the reality of the situation is that the government got away with a lie for more than three decades and that fact alone is enough to encourage it to deploy useful lies in any situation where it thinks misstating the facts will give it an edge or help it achieve its aims."

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 10:33am

    Re:

    Swartz, Manning, Snowden ... I'm sure there's a few others that belong on this list. It would be a honorable list that most people, who believe in a free society, would admire.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 10:38am

    It's not hard to see how this happens. When a suspected illegal is arrested they are not assumed innocent until guilty. They are not given rights as if they are US citizens. I think it's frightening that this has been happening and I would be surprised that no one from INS knew about it long before now.

     

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  26.  
    identicon
    DCX2, Oct 9th, 2013 @ 10:53am

    Re: Re: Reminder

    Okay, I'll give you that one. Employee was the wrong word. But federal law enforcement officer is also the wrong word(s). Section 1001 deals with anything under the jurisdiction of the three branches of the federal government, which is a lot of latitude.

    With that out of the way - Mr. Saldana's immigration status is under the jurisdiction of the executive branch of the government, and I'm sure there is some case file with Mr. Saldana's name on it, meaning there's an investigation and his statements are material to that investigation. He is not allowed to lie to an ICE official - it's a crime. But those very same ICE officials can lie to him about the Mexican Constitution and the legitimacy of his birth to his parents - and they commit no crime.

     

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  27.  
    identicon
    DCX2, Oct 9th, 2013 @ 10:57am

    Re: Re: Reminder

    18 USC § 1001

    (a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—
    (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact;
    (2) makes any materially false, fictitious, or fraudulent statement or representation; or
    (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;


    Seems to disagree with what you're saying. There are some exceptions, but none that do your argument any good.

     

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  28.  
    identicon
    Anonymous Coward, Oct 9th, 2013 @ 11:59am

    Re: WHERE'S the tech or economics in this? Here's your charter:

    You obviously skipped over the words "legal issues".

    Your brain has a limited hangout with reality, no?

     

    reply to this | link to this | view in thread ]

  29.  
    icon
    btr1701 (profile), Oct 9th, 2013 @ 2:05pm

    Re: Re: Re: DHS

    > We had discussed this internally. We left
    > it as DHS because the court refers to DHS.

    Rather than perpetuate a glaring error, I would think the proper think to do in that case would be to note that the court erroneously referred to DHS as committing these deportations during a time when DHS did not exist, and then from that point on refer to the correct agency.

     

    reply to this | link to this | view in thread ]

  30.  
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    btr1701 (profile), Oct 9th, 2013 @ 2:12pm

    Re: Re: Re: Reminder

    > Seems to disagree with what you're saying.

    So you've quoted the statute. That's step 1. Well done. Now research the court cases that have interpreted that statute over the years and see how the power of the government under this section has been limited by them.

    I'd say you'd be laughed out of court if you tried to bring charges against someone for lying to a museum tour guide, but you'd never even get to court. No prosecutor who wanted to keep his job would even touch such a case.

     

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  31.  
    identicon
    DCX2, Oct 9th, 2013 @ 2:13pm

    Re: Re: Re: Reminder

    Whoa, it looks like this gets even better, btr1701. Here's the US Attorneys Criminal Resource Manual regarding Section 1001.

    http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00906.htm

    After reading this, I'm pretty sure lying to a Park Ranger is illegal. Section 1001 is so broad that it even encompasses any private entity receiving federal funds, or subject to federal regulation. So if you work for a bank, and someone lies to you, since banks are regulated by the government, you just violated Section 1001 - and the bank employee isn't even a federal employee! From the link:

    United States v. Green, 745 F.2d 1205, 1208-09 (9th Cir. 1984), cert. denied, 474 U.S. 925 (1985)(false statements to private firm constructing nuclear power plant regulated by Nuclear Regulatory Commission)

    United States v. Wolf, 645 F.2d 23, 25-26 (10th Cir. 1981)(false statements to oil company subject to federal regulation)

    United States v. Matanky, 482 F.2d 1319, 1322 (9th Cir. 1973), cert. denied, 414 U.S. 1039 (1973); (false statements to insurance company acting as payment agent for Medicare)

    United States v. Mouton, 657 F.2d 736, 739 (5th Cir. 1981)(false time sheet submitted to accounting office of community organization receiving CETA funds)

    United States v. Cartwright, 632 F.2d 1290, 1292-93 (5th Cir. 1980)(false statements to savings and loan association insured by FSLIC).

     

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  32.  
    identicon
    DCX2, Oct 9th, 2013 @ 2:14pm

    Re: Re: Re: Re: Reminder

    Check the comment below for some interesting court cases regarding Section 1001, where people were convicted without once ever talking to an employee of the federal government.

     

    reply to this | link to this | view in thread ]

  33.  
    identicon
    DCX2, Oct 9th, 2013 @ 2:17pm

    Re: Re: Re: Re: Reminder

    EDIT: sorry, if you work for the bank, and someone lies to you, *that someone* (not you) has committed a crime. And case law shows that people have been convicted over such things, like US v. Cartwright.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    DCX2, Oct 9th, 2013 @ 2:39pm

    Re: Re: Re: DHS

    Hey Mike, not to be a douche bag, but you might want to re-read page 2 of the opinion before stating that the Court did not refer to Immigration and Naturalization Service.

    Page 2, second paragraph, fourth sentence.

    He served four years before being released to the custody of the Immigration and Naturalization Service.

     

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  35.  
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    nasch (profile), Oct 10th, 2013 @ 6:20am

    Re: DHS

    The DHS has existed for only 11 years, so they can't take all of the credit.

    It's ICE, which is part of the DHS, and INS, which is what ICE was called before.

     

    reply to this | link to this | view in thread ]

  36.  
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    nasch (profile), Oct 10th, 2013 @ 6:22am

    Re: Re: DHS

    Created 1933, dissolved 2003, the very same day ICE was created under DHS.

    They didn't dissolve INS and create a brand new agency called ICE, it was just a rename.

     

    reply to this | link to this | view in thread ]

  37.  
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    Niall (profile), Oct 11th, 2013 @ 4:38am

    Re: Re: Re: WHERE'S the tech or economics in this? Here's your charter:

    I'd say that puts a serious chiller on innovation and business development!

    What's funny is that someone in the Deep South (Sheriff Joe?) will now probably invent an equally spurious Kenyan article to try and justify de-naturalising their favourite presidential straw man.

     

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  38.  
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    TMLutas (profile), Oct 14th, 2013 @ 4:09pm

    Bug stomping

    Let us assume for a moment that the use of the non-existent constitutional clause in court pleadings is a bug. What changes to our political system would have made that bug shallow?

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    askeptic, Oct 14th, 2013 @ 4:19pm

    Wow, there goes their excuse to deport Ted Cruz.

     

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  40.  
    identicon
    JWnTX, Oct 14th, 2013 @ 4:46pm

    Interesting...

    Fabrications from the most liberal Administration prior to the current one. I'm shocked! Shocked, I tell you! Not so much....

    Libs are well know for their flights of fancy and lies to further whatever cause they think is "right" at the time. This is just one more example. No doubt the citizens deported had voted the wrong way in 76.

     

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  41.  
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    madasahatter (profile), Oct 14th, 2013 @ 5:21pm

    What other non-existent laws and regulations?

    There is a serious problem for both the INS/IcE and the judiciary. I am appalled this could have happened for 35 years and never was caught.

    A more general issue is how often are non-existent laws and regulations are used to convict people; particularly those who have to rely on public defenders. The total number of pages is so vast it is it impossible for someone to completely comprehend them all.

     

    reply to this | link to this | view in thread ]

  42.  
    identicon
    Sean, Oct 14th, 2013 @ 5:47pm

    Ins/dhs

    35 years and NO JUDGE checked this sh*t out?

     

    reply to this | link to this | view in thread ]

  43.  
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    nasch (profile), Oct 15th, 2013 @ 6:40am

    Re: Interesting...

    Libs are well know for their flights of fancy and lies to further whatever cause they think is "right" at the time.

    Did you miss the part where this has been going on repeatedly for 35 years? This is not a liberal or conservative issue - law enforcement always tends to abuse their power if it's not checked.

     

    reply to this | link to this | view in thread ]


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