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.

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

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out_of_the_blue says:

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.

Rikuo (profile) says:

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.

Anonymous Coward says:

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.”

Niall (profile) says:

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.

Anonymous Coward says:

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


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.)

Anonymous Coward says:

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.

Anonymous Coward says:

“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.

DCX2 says:


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.

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

btr1701 (profile) says:

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.

DCX2 says:

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.

btr1701 (profile) says:

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.

DCX2 says:

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.

DCX2 says:

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.

btr1701 (profile) says:

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.

DCX2 says:

Re: Re: Re: Reminder

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

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).

JWnTX (profile) says:


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.

madasahatter (profile) says:

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.

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