Pro Bono Attorneys Fight for Client Trapped in Immigration Black Hole

Millie Lapidario

The Recorder

At first glance, the story of Thailand-born convicted drug pusher Yuttasak Simma fits the mold of an immigration lawyer's typical case: The 34-year-old was convicted on an aggravated felony drug charge, served his jail sentence and is now being detained by immigration officials.

The government alleges Simma is subject to deportation.

But what makes this case unique, according to one of his pro bono attorneys, Sin Yen Ling of the Asian Law Caucus, is that he is a U.S. citizen being held illegally. And in their attempts to get him out of Santa Clara, Calif., County Jail, his lawyers are using the same federal statute highlighted in a major enemy combatant case.

Under the federal Non-Detention Act, the government is prohibited from detaining U.S. citizens without explicit authorization from Congress. In Hamdi v. Rumsfeld, 542 U.S. 507, the U.S. Supreme Court ruled in 2004 that Congress had the authority to detain citizens classified as enemy combatants -- but in a concurring opinion, Justice David Souter stated that even the authority of war power did not justify indefinitely detaining a U.S. citizen.

In a writ of habeas corpus filed earlier this month by Simma's other pro bono attorney, R. Roy Wang of Kirkland & Ellis, Wang argues that "Congress has not authorized the indefinite detention under INA of a person that has a substantial claim of citizenship." And unlike the defendant in Hamdi, Wang writes, Simma doesn't pose a threat to national security.

According to Simma's court filings, he automatically derived citizenship after his mother naturalized in 1985, when he was a minor. Immigration and Customs Enforcement locked him up in late March at the end of his criminal sentence after interviewing him for about 10 minutes, he claims. The next day, the government served him with a notice to appear in removal proceedings before a federal immigration judge in San Francisco.

For the last four months he has been detained by immigration officials while his citizenship claims get sorted out.

His attorneys argue that immigration officials cannot detain him since he has already made a prima facie showing of his citizenship by providing the immigration court and the Department of Homeland Security with his mother's naturalization certificate and his birth certificate.

Still, Ling says both the court and immigration officials won't agree to release him without an N-600 form, which certifies Simma's derived citizenship. His attorneys applied for that form in June and a branch of Homeland Security is processing it. But that means months of delays, and from Ling's perspective, "any additional day behind bars is wrong."

New York University School of Law professor Nancy Morawetz conceived the strategy on behalf of clients in predicaments like Simma's.

"The immigration system targets people for potential deportation all the time based solely on their place of birth, and many people who were born outside the United States are citizens," Morawetz said.

Suspected illegal immigrants are presumed "aliens" until proven citizens, according to Chuck Roth, director of litigation for the National Immigrant Justice Center, who is based in Chicago. Roth says claims of derivative citizenship make up less than 1 percent of the cases he deals with.

U.S. Immigration and Customs Enforcement does not comment on particular cases, but according to ICE spokeswoman Virginia Kice, there is no "one-size-fits-all legal strategy for how [ICE attorneys] litigate immigration cases."

"If we have a strong belief that somebody is a United States citizen, we're not going to put them in immigration proceedings," said Kice, adding there are situations where additional factors -- such as suspicions of fraud or missing documents -- cast doubt on a person's citizenship claim.

A hearing for Simma's motion to terminate immigration proceedings is scheduled for July 26.