Fingerprinting, Home Raids, and a Rare Apology to Immigrants

The Obama administration this past week opted to vastly expand a George W. Bush program to run fingerprints through immigration scans in Houston, TX.  In the past, only serious criminals were fingerprinted and screened for immigration conflicts.  With this program though, even those accused of misdemeanors and nonviolent crimes are fingerprinted and checked in the USCIS database. (http://www.nytimes.com/2009/07/26/us/26secure.html?pagewanted=2&tntemail1=y&_r=1&emc=tnt)

Federal officials stated that the automatic fingerprint checks in Harris County resulted in the deportation of 94 people for felonies and 1,624 people accused of misdemeanors and nonviolent crimes. Cesar Espinosa of the immigrant advocacy group America for All said, “People are getting deported for even minor offenses like not having an ID or a driver’s license.” (http://www.nytimes.com/2009/07/26/us/26secure.html?pagewanted=2&tntemail1=y&_r=1&emc=tnt)

Another symptom of America’s flawed immigration enforcement was chronicled in a report released by the Benjamin Cardozo School of Law this past week. The Cardozo Justice Law Clinic partnered with several law enforcement experts like Nassau County’s police commissioner, to analyzing 700 arrest reports obtained from the Immigration and Customs Enforcement [ICE] agency through Freedom of Information Act [FOIA] lawsuits.

In the home raids scrutinized by this report, the ICE agents acting without a search warrant were required to obtain consent. However, 86% of the home raids in Nassau and Suffolk counties, no consent was recorded as required by law. The report condemned the “cowboy mentality” that ran rampant throughout these raids: in Paterson, NJ, a nine-year-old legal citizen of Guatemalan descent was threatened at gunpoint while his legal resident mother was in the shower; in a Staten Island case, an immigration judge ruled that similar agents’ actions were an “egregious violation” of basic fairness; an email message exchanged between an ICE agent in Connecticut and a state trooper invited him to a set of raids scheduled for New Haven, stating, “We have 18 addresses – so it should be a fun time! Let me know if you guys can play!”

Such an abuse of power stems from having a system which criminalizes individuals merely suspected by their ethnicity of being guilty of a civil violation.  The Cardozo report suggests that these ICE home raids should be “a tactic of last resort, reserved for high-priority targets,” and accompanied with a search warrant.  The report also recommends that supervisors be on site and home raids videotaped. Lastly, the report states that agents should have to note why the initially seized or questioned any person, rather than merely waiting for the results afterwards [i.e. in law, “the end should not justify the means”].  Hopefully DHS Secretary Napolitano reads this insightful report and begins to deescalate the fear and violence perpetrated against our nation’s immigrant population through such negative programs. (http://www.nytimes.com/2009/07/22/nyregion/22raids.html?emc=tnt&tntemail1=y)

As California worked around the clock to vote on a budget that would alleviate its 26 billion dollar deficit, they also passed an important public apology a long time coming.  The California Legislature apologized for its states’ past persecution of Chinese immigrants who worked on the state’s railroads, farms, and gold mines.  On Friday, the State Secretary released this public apology for the 19th and 20th century wrongs done to Chinese Americans.  If only the United States as a whole would apologize for the xenophobic, nativist legislation it passed in the 1882 Chinese Exclusion Act which banned all Chinese-Americans, and later all Asian-Americans, from legally immigrating to the United States for some 60 years. (http://www.nytimes.com/2009/07/23/us/23brfs-APOLOGYTOIMM_BRF.html?emc=tnt&tntemail1=y)

It is entirely possible that in 70 years, the United States will be uttering its own apologies to third and fourth-generation immigrants for the inhumane home raids and invasive fingerprint checks we are conducting now.

Postville: The Difference a Year Makes

Yesterday, immigrant rights advocates marched down the tiny streets of Postville, IA. They marched to remind the nation that workplace raids cause ongoing devastation, that immigrants deserve basic human rights, and that Obama must live up to his promise to tackle immigration reform in the next year. [Martin, Liz. “Postville story, a year later, told in photos”]

Local businessman Gabay Menahem joined the march and commented on the economic difference a year makes.  “A year ago it was impossible to buy a house in Postville. Now there are 228 houses for sale out of 700 total.”  More than 30% of the Jewish community left after the raid, and much of the Latino community was either deported after entering guilty pleas or fled in fear.  [Love, Orlan] Some still remain, wearing transponders on their ankles more than a year later.  Children still remain [local school attendance has only dropped about 3%], but they are in increasing need of mental health services, and many of them are missing at least one parent.

Father Ouderkirk and St. Bridget’s Church continue to minister to the Latino community of Postville.  They currently care for 30 affected families, aiding them with housing and food and counseling as they seek to be reunited with their family members or as they wait for their day in court.

Most of the 389 workers arrested pled guilty last May.  They were housed in a cattle-barn, expedited through a trailer-home courthouse ten at a time, and threatened with years in prison unless they pled guilty on the spot.  Many of them were from Guatemala, and few of them spoke English.  The majority of them had no idea what a Social Security number was, or why the leading prosecutor Stephanie Rose thought that they had used fake ones.  Many of them had received fake numbers from their employer, Agriprocessor’s Inc., the largest kosher meatpacking plant in the nation.

Last week, the Supreme Court issued its ruling on Flores-Figueroa, ruling that to be convicted of aggravated identity theft, the person must know they are using another person’s identification.  While this ruling does little for the 389 workers, most of whom pled guilty and have since been deported, but it is resulting in dropped charges against some of Agriprocessor’s administration.  Last Tuesday, federal prosecutors dropped aggravated identity theft charges [a mandatory 2 years imprisonment] against human resources manager Laura Althouse, who was allowed to rescind a guilty plea she entered last year. [Preston, Julia. “Dismissal of Guilty Pleas is Sought for Immigrants”]

As the Supreme Court’s decision affects the sentencing of this dubious employer’s administrative staff, many are calling upon Attorney General Eric Holder Jr. to order a case-by-case investigation into the almost 300 guilty pleas entered last May in Postville. “The federal prosecutors used the law as a hammer to coerce the workers,” said David Leopold, vice president of American Immigration Lawyers Association.  Others went farther, including Representative Zoe Lofgren (D-California), chairwoman of the House immigration subcommittee.  She is calling on the Justice Department to start over, since these cases didn’t comport with the law. [Preston, Julia. “Dismissal of Guilty Pleas is Sought for Immigrants”]

Today marks the day after Postville’s raid last year.  Postville no longer represents the largest ICE raid [Laurel, MS, now holds that dubious title].  This tiny town in northern Iowa has largely been forgotten by politicians and lawmakers, if not the general public.  As life goes on and our courts begin to follow the new Flores-Figueroa ruling, it is vital that we make sure it is evenly applied.  There is an unpleasant aroma of injustice when the immigrants who worked in subhuman conditions were imprisoned five months and deported, while the employers were never made to stand accountable for their numerous employment violations [child labor laws, safety protocols, and pay] and look to walk on some of the harsher sanctions of identity theft and employing undocumented workers.

Post-Postville America

Though it only occurred last May, the ICE raids in Postville, Iowa, keep resurfacing to the forefront of immigration policy in the United States. On February 25, Department of Homeland Security Secretary Janet Napolitano ordered a review of a raid the day before. This raid on the Yamato Engine Specialists engine repair shop in Washington resulted in the arrest of 28 individuals and the first such raid under the new Obama administration (Stark, John and Anna Walters. Bellingham Herald). A top official suggested that Napolitano did not know of the raid beforehand, stating that, “She was not happy about it because it’s inconsistent with her position, and the president’s position on these matters.” The fate of these workers, most of whom await trial in a Tacoma detention center, will also signal the resolve of the Obama administration to focus more on noncompliant employers rather than the employees. So close to the events of Postville where nearly 400 immigrants were arrested and adjudicated in rapid fashion, Napolitano’s review of the raid will demonstrate how far we’ve come as a nation in ten months. (http://www.nytimes.com/2009/02/26/washington/26immig.html?emc=tnt&tntemail1=y)

Also last week, the Supreme Court heard the oral arguments of Flores-Figueroa v. United States. This case is a test case aimed at getting the Supreme Court to issue a binding national ruling on identity theft. 18 U.S.C. §1028 is an aggravated identity theft statute which extends criminal sentences by two years per charge. §1028 intersects with immigration law, however, when undocumented immigrants make up Social Security numbers which happen to belong to real people.

Six District Courts are evenly split over the extent of mens rea (foreknowledge) required for this crime. Currently, six District Courts are evenly divided in the interpretation of the ambiguous term “knowingly” within 18 U.S.C. §1028(a). The 4th, 8th, and 11th Courts have ruled no mens rea as to the person’s identity is necessary, while the 1st, 9th, and D.C. Circuits have ruled it a requirement. United States v. Villanueva-Sotelo, 380 U.S. App. D.C. 11, 515 F.3d 1234 (D.C. Cir. 2008)(explaining necessity for mens rea because theft is not mere misappropriation); United States v. Sanchez, 2008 U.S. Dist. Lexis 35460 (E.D.N.Y. April 30, 2008)(requiring government to prove scienter for identity theft); United States v. Mejorada-Cordova, 2008 U.S. Dist. LEXIS 44634 (D. Utah, June 5, 2008); United States v. Salazar-Montero, 520 F. Supp. 2d 1079 (N.D. Iowa 2007) (mens rea needed due to statutory ambiguity).

“There’s a basic problem here,” said Chief Justice John G. Roberts Jr.. “You get an extra two years if it just so happens that the number you picked out of the air belonged to somebody else.” Kevin Russell, attorney for the defendant, is arguing that, at the very least, the rule of lenity requires that ambiguous statutes such as §1028 be resolved in favor of the defendant in criminal cases. Ignacio Flores-Figueroa worked with false identification for years at a steel plant in Illinois. After six years, he changed his false identification documents and was arrested shortly thereafter. The Eighth Circuit convicted Flores on the basis that he knowingly used false identification, despite the fact he was ignorant of a true person’s identity. (Faitek, Adam. New York Times)

10 months ago in Iowa, 270 of the 400 immigrants working in a kosher meatpacking plant were criminally charged with using false identification. A marked departure from past instances where immigrants had faced only civil charges, the predominantly Guatemalan Spanish-speakers were penned in a cattle-barn and hurried through the mobile trailer-courthouse. Prof. Erik Camayd-Freixas of Florida International University, an interpreter who risked his professional life to speak out against the atrocities he witnessed that May, stated that most of the immigrants had no idea what a Social Security card was, let alone that they had “stolen” someone’s identity.

While much of this may seem like obscure legal arguments, what this realistically means for immigrants charged under §1028 is that, rather than the speedy deportation for which they were hoping, they may have to spend years in an American jail. Anxious to return to any jobsite to earn precious money for their families, the long sentences associated with §1028 condemn them and their families to a meager existence. Moreover, the arbitrary nature of §1028’s application means that some unlucky individuals who picked the wrong number are serving the same jail sentence as professional thieves who bilked thousands of dollars from unsuspecting internet users.

With the oral arguments in, the Supreme Court is now deliberating. Their published opinion will be released later this year, and it will certainly have far-reaching repercussions for the immigrant community. Hopefully their decision will ensure that in a post-Postville America immigrants will be guaranteed a fair civil trial.

El Paso del Mundo

Las Americas Asylum Law Project

El Paso is closer to Los Angeles than Houston, closer to three other state capitals than its own, 12 hours from Brownsville, Texas.  It is part New Mexico, part Tejano, part Mexico, part Wild West, all frontera.  With a population of 700,000 and separated from a 1.5 million city by a tiny rivulet called the Rio Grande, El Paso melds with Juarez in culture, language, music, food, and la gente.

11 University of Minnesota Law School students arrived in El Paso, Texas, on Sunday, January 4. We came as part of the Asylum Law Project to volunteer with nonprofit groups such as Texas Rio Grande Legal Aid, Diocesan Migrant and Refugee Services, Paso del Norte Civil Rights Project, and Las Americas Advocacy Center.  We came to volunteer, but as always, we assuredly will gain more than we give.

Our first day in El Paso, we attended immigration court and saw the inside of a client interview room.  The immigration court was informal, the judge joking about Burn after Reading and giving informal history lessons about Ellis Island.  The hardest cases were the pro-se ones, where we had to watch a 19-year-old boy with oversized clothes sit silently in front of the judge as he was told he had to wait for the LA judge to reopen his case.  Beside him, a Korean man was whispering prayer upon prayer, eyes closed.  Inside the interview room, the circle chairs and the square table were stainless steel.  A woman from El Salvador had been transported from San Francisco to Los Angeles to Arizona to Houston to El Paso.  Her son was watching her younger children and attending Stanford, and this meeting was to gather some last-minute details so that she could apply for a change of venue.  The steel room was empty and echoed, her small voice enunciated each word of Spanish thoughtfully and deliberately.

That same day, we were told by numerous attorneys and well-meaning citizens not to venture across the bridge to Juarez.  Granted there were more than 1,600 murders in Juarez in 2008 and a group of hueros would generally attract a lot of attention; however, it is that same sort of terror that has depressed the economy on both sides of the river and has lent credence to the drug dealers and thugs like the Zetas.  It is that same fear that led Congress to pass the Secure Fence Act of 2006, the same fear that drives Bill O’Reilly’s ratings, the same fear that enables shows like ABC’s “Homeland Security USA” to exist.  As we crossed the El Paso del Norte Bridge and were greeted by the smell of tacos al pastor and the sight of cheap meds and fast surgeries, none of us felt threatened.  Even as we walked by the federales with their automatic rifles and teenage faces, it was impossible to see much of a difference between one side of the river and the other.  We watched Texas beat Ohio State for the Fiesta Bowl as we sat in the Yankees bar, across the centro from the Kentucky Bar where Marilyn Monroe bought drinks for everyone the day she divorced Arthur Miller.  Both sides of this river are hopelessly interconnected.

We are staying in the Gardner Hotel/El Paso International Hostel, a hotel from the 1920s that has hosted John Dillinger and Cormac McCarthy. An old PacBell phone booth stands sentry at the doorway, and an old-time telephone switchboard stands next to the check-in booth.  With its high ceilings and transoms, old charm and new faces daily, many languages and few rules, this hostel is as good a metaphor for El Paso and Juarez as one can imagine.

Tonight we visited Casa Anunciacion, an immigrant safe house.  Dreamed up by 5 Christian men more than 30 years ago, this organization operates in the historically most impoverished portion of El Paso.  It serves as a home for immigrants, whether for one night or for 8 months.  Families, abused women, single teens, mothers and babies, fathers – the house is full to the brim with immigrants seeking shelter and a change.  This particular night Juan Carlos cooked dinner for all 55 tenants and all 11 of us.  We sat next to immigrants from Guatemala and Sinaloa, El Salvador and Lebanon, Juarez, and Honduras.  After dinner, I washed dishes alongside Federico as everyone worked together to clean the facilities.  Although the house was raided by ICE several years ago, it still continues to offer hope to many seeking a better job and life.

The border towns of El Paso and Juarez serve as a microcosm of worldwide immigration patterns.  When goods are freely transportable in a globalizing world, it only stands to reason that people will desire to move freely legally or not.  Border lines are human conventions, and as one looks at the picnic cloth of stars between the Sierra Madre and Rocky Mountains that is El Paso/Juarez at night, it is impossible to see where one ends and the other begins.  Perhaps that would just be a perfunctory exercise anyway.

Something there is that Doesn’t Love a Wall- Part 4

It is the longest fence on the planet, stretching over 3,000 miles from the Darling Downs to the Eyre Peninsula. Built in the 1880s, the Dingo Fence or Wild Dog Barrier Fence of Australia is still patrolled by 23 employees. The fence was originally built to keep dingoes out of the the fertile and heavily populated southeast of Australia and also protect the valuable sheep herds of Queensland. While the wild dogs have not been eradicated entirely from this fenced section of Australia, their numbers have been significantly reduced. Instead of increasing sheep herds, however, kangaroos and rabbits have grown in number, keeping the sheep population constant.

Shortly after the Secure Fence Act of 2006 was passed, Latin America expressed its sadness and revulsion at such an isolationist gesture. Guatemalan Vice President Eduardo Stein, whose government is a close friend of George W. Bush, said, “It seems to us a real affront that a government that calls itself a friend and regional partner only wants our money and our products, but treats our people as if they were a plague.”

The current walls in California and Arizona designed to stem the “flood” of people dubbed undesirable by the United States are not working. Rather than stopping border crossings, they actually catch fewer border crossers and reroute illegal entries through more remote and lethal sections of the border. Putting up walls to discourage illegal immigration, without dealing with the root push-and-pull factors of immigration is irrational and irresponsible. Our government is a man who walks into a flooded house and begins mopping the floor, even though he sees an overflowing sink, faucet still running. A border wall is an ineffective Band-Aid when we need real change, much like the “Vaseline of gradualism” which Dr. King railed against in favor of real civil rights reform.

Rancher Thomas Austin missed his homeland of England. In 1859, he released 24 rabbits on his lands, stating these famous last words, “The introduction of a few rabbits could do little harm and might provide a touch of home, in addition to a spot of hunting.“ By 1894, rabbits had taken over the Australian mainland.

Running a little over 2,000 miles, the Rabbit-Proof Fence of Australia was constructed between the years 1901-1907. The purpose of the wire fencing, which ran three feet high and six inches underground, was to keep the rabbits from spreading through the entire continent. To actively patrol the fence, Chief Inspector of Rabbits Alexander Crawford sent out boundary riders on bicycles and camels. Despite these efforts, though, the rabbits soon could be found in every state. Without any natural predators, the rabbit population exploded and eventually overran the fence. Ranchers and farmers were forced to fence in their crops to protect it from the rodents.

While more than 39 laws governed the environmental and sociological surveying of the potential border wall in southern Texas, these laws were waived on April 1, 2008, with the assurance that the potential threat far outweighed very real risk. The same thing happened on September 22, 2005, when Secretary of Homeland Security Michael Chertoff waived “in their entirety” the Endangered Species Act, the Migratory Bird Treaty Act, the National Environmental Policy Act, the Coastal Zone Management Act, the Clean Water Act, the Clean Air Act, and the National Historic Preservation Act to extend triple fencing through the Tijuana River National Estuarine Research Reserve near San Diego.

Since 1904, the Border Patrol has grown from an unofficial 75-man unit of mounted riders designed to enforce the Chinese Exclusion Act to an 11,000-member squad aiming to thwart all illegal crossings. Despite this manpower, which is only expected to grow over the coming years, the number and cost of each illegal entry into the United States has simply increased. A border wall will only add to the cost, while being about as effective as a rabbit-proof fence in a continent not far away.