- In 2003, the Department of Homeland Security (DHS) established
its largest investigative and enforcement branch - the US Immigration and
Customs Enforcement arm (ICE) "as a law enforcement agency for the
post-9/11 era, to integrate enforcement authorities against criminal and
terrorist activities, including the fights against human trafficking and
smuggling violent transnational gangs and sexual predators on children
(who are) criminal (and) terrorist" threats to the nation.
-
- Along with Muslims, Latinos are its prime targets, often
using militarized unconstitutional tactics against vulnerable, defenseless
people. Post-9/11, the Bush administration initiated them, and they continue
under Obama.
-
- On May 23, 2007, as a senator, Obama said:
-
- "The time to fix our broken immigration system is
now. We need stronger enforcement on the border and at the workplace."
-
- Then on July 8, 2009, Wall Street Journal online writer
Cam Simpson said on politicalforum.com that:
-
- "The Obama administration (today) said it would
move forward with a Bush-era program aimed at cracking down on illegal-immigrant
workers and their employers, just as Republicans in the Senate are pushing
legislation that would mandate a similar move."
-
- With about 10% of DHS' $55 billion FY 2010 budget, ICE
will continue targeting Latinos at the border, at work sites, and at their
homes with some recent examples below:
-
- -- in a September 18 press release, ICE's Miami field
office announced it "removed" 423 "criminal aliens from
36 countries" in August, charging them with drugs traffickin, robbery,
and various fraudulent activities;
-
- -- on September 11, 23 alleged gang members faced deportation
after being being arrested in a four-day operation; unmentioned was whether
any of them are undocumented;
-
- -- on August 25, 15 Latinos were arrested in San Antonio,
TX on alleged drugs trafficking charges;
-
- -- on August 11, 50 arrests were made on charges of "enter(ing)
into sham marriages to gain citizenship," including those undocumented
and their US citizen wives;
-
- -- on July 31, 53 alleged South Florida gang members
and associates were arrested in a two-day operation; some "were found
to be in violation of the immigration law (and) were processed for removal
from the United States;"
-
- -- on July 31, eight San Francisco area alleged gang
members and associates were seized "during a six hour surge;"
some were "foreign nationals who are being processed for deportation;"
-
- -- on June 30, 116 alleged gang members, their associates
and "immigration status violators" were targeted in a five day
operation in Houston, Beaumont, and Corpus Christi, TX;
-
- -- on June 30 in the Dallas-Fort Worth Metroplex, 81
others were arrested; foreign-born ones seized were from Mexico, El Salvador,
Honduras and Laos;
-
- -- on February 25, 28 "illegal workers" were
arrested at Yamato Engine Specialists in Bellingham, WA during an earlier
Obama administration raid; and
-
- On February 18, the Washington Post reported that "immigration
officers had been raiding targets across Prince George's and Montgomery
counties all night long in search of fugitive and criminal immigrants but
only netted a handful."
-
- Earlier, a Baltimore ICE supervisor warned about being
well behind "a Washington-mandated annual quota of 1000 arrests per
team" and ordered his agents to seize more saying: "I don't care
where you get more arrests, we need more numbers," and apparently
he meant from any street corner, work place, or personal residence. An
hour later, 24 Latino men were seized at a nearby 7-Eleven store.
-
- Since established in 2003, Congress appropriated hundreds
of millions of dollars to let ICE "bring in tens of thousands of immigrants
who have not evaded a deportation order or committed a crime...."
Since then, it continued the operation, and, during 2007 and 2008, expanded
tactical home entries using militarized agents for illegal warrantless
raids without the consent of their owners.
-
- On July 26, The New York Times reported that:
-
- "Federal immigration squads with shotguns and automatic
weapons (are) forcing their way into citizens' homes without warrants or
lawful consent, shoving open doors and climbing through windows in predawn
darkness, pulling innocent people from their beds, holding groggy occupants
at gunpoint, (and) taking people away without explanation - after invading
the wrong house."
-
- "This is a true account of the depths to which the
Bush administration sank in its twilight, when immigration enforcement
was ramped up to a feverish extreme." Shamefully, these practices
continue under Obama.
-
- A recent New York City Cardozo School of Law Immigration
Justice Clinic (IJC) study titled "Constitution on Ice: A Report on
Immigration Home Raid Operations" examined the problem in New York,
New Jersey, and Long Island from 2006 - 2008 and included other examples
in California, Texas, Massachusetts, Georgia and elsewhere. Researchers
documented a nationwide assault on poor immigrant workers, the great majority
being Latinos. Many times ICE broke into homes, seizing all occupants "without
legal basis."
-
- IJC discovered a systematic pattern of misconduct "suggest(ing
it) may be a widespread national phenomenon reaching beyond" the areas
studied. It involves:
-
- -- illegal ICE agent entries with no legal authority;
-
- -- illegally arresting people randomly, including innocent
ones in their bedrooms;
-
- -- conducting lawless searches and seizures in violation
of the Fourth Amendment; and
-
- -- making arrests based on ethnicity, race, appearance,
and English proficiency.
-
- These police state tactics have no place in a democracy,
yet ICE (on its web site) lists dozens of monthly swat-type raids, often
against innocent people and their families in their homes. IJC described
them this way:
-
- A typical home raid has "a team of heavily armed
ICE agents approaching a private residence in the pre-dawn hours, purportedly
seeking an individual believed to have committed some civil immigration
violation. Agents, armed only with administrative warrants, which do not
grant them legal authority to enter private dwellings, then push their
way in when residents answer the door, enter through unlocked doors or
windows or, in some cases, physically break into homes."
-
- All occupants are then seized and interrogated with no
legal authority, and often "no target is apprehended." These
aren't random, standard operating procedures in violation of the Fourth
Amendment that protects citizens and non-citizens alike. The Office of
Detention and Removal (DRO) conducts them cooperatively with the Office
of Investigations (OI), charged with investigating national security threats,
immigration violations, and various other suspected crimes.
-
- Home raid operations include:
-
- -- the National Fugitive Operations Program (NFOP) using
over 100 seven-person Fugitive Operations Teams (FOTs) to target individuals
for deportation;
-
- -- Operation Cross Check focusing on specific immigrant
populations or ones working in certain industries like dangerous, low-paying
meat packing operations, unattractive to workers able to find safer, better-paying
jobs;
-
- -- Operation Community Shield (OCS) against suspected
immigrant gang members; and
-
- -- Operation Predator against suspected immigrant sex
offenders.
-
- Most often, high priority targets aren't seized. Instead,
"collateral arrests of mere (suspected) immigration status violators"
are made, and since 2006 the numbers expanded eight-fold because of primarily
relying on home raids despite their illegality.
-
- On April 15, 1980 in Payton v. New York, the Supreme
Court ruled that "The Fourth Amendment....prohibits the police from
making a warrantless and nonconsenual entry into a suspect's home in order
to make a routine (criminal or civil) felony arrest." Such "entry....is
the chief evil against which the wording of the Fourth Amendment is directed."
-
- Searches are also prohibited. Only an adult resident's
consent permits either or both. Administrative warrants have no authority,
and police may only interrogate suspects based on "reasonable suspicion"
of unlawful activity. "In addition, agents can never rely solely on
the racial or ethnic appearance or the limited English proficiency of an
individual to justify a seizure."
-
- DHS' own regulations cover these restrictions, and ICE's
Detention and Deportation Officer's Field Manual states:
-
- "Warrants of Deportation and Removal are administrative
rather than criminal, and do not grant the authority to breach doors. Thus
informed consent must be obtained from the occupant of the residence prior
to entering."
-
- Nonetheless, "empirical data drawn from ICE's own
arrest records (obtained by Freedom of Information Act lawsuits) strongly
suggest a significant and disturbing pattern of (agency) misconduct during
home raids" during which over 1000 people were seized. The evidence
is alarming and shows "an unacceptable level of illegal entries"
in clear violation of the law. In addition, most arrest records indicate
"no basis for the initial seizure" and a disturbing racial profiling
pattern against Latinos.
-
- In recent years, defense lawyers increasingly have used
suppression motions to prevent illegally obtained evidence being used.
Earlier, they were rare in immigration courts, given the Supreme Court's
decision in INS v. Lopez-Mendoza (July 5, 1984) that deportation proceedings
are:
-
- "civil action(s) to determine a person's eligibility
to remain in this country....not to punish past transgressions. (As such)
various protections (including suppression motions don't generally) apply....in
a deportation hearing."
-
- In immigration courts, they're not standard procedures.
Since 2006, however, they're more often used because the High Court also
"reasoned that the exclusionary rule may (apply) in immigration proceedings
for egregious and widespread Fourth Amendment violations" even though
prevailing in immigration cases remains challenging, expensive, and time-consuming.
-
- Political and Local Law Enforcement Concerns
-
- ICE often requests operational help from local police
who complain that Fourth Amendment violations undermine their central crime
suppression mission. Political leaders voice similar concerns. New York
state Senator Kirstin Gillibrand said she was "appalled by some of
the practices I have heard about," and New Haven Mayor John DeStefano
said "We won't stand for the violation of constitutional rights and
racial profiling" in reacting to city raids.
-
- In September 2007, the Nassau County Police Department
pulled out of an operation it agreed to because of "serious allegations
of misconduct and malfeasance." In this case, no warrants were used,
not even administrative ones. ICE fraudulently claimed they weren't needed
because consent to enter all homes was received. In response, Nassau County
Police Commissioner, Lawrence Mulvey, said:
-
- "In my 29 years of police work, I have executed
countless warrants and have sought to enter countless homes. ICE's claim
that they received 100% complaince with their requests to enter is not
credible even under the best of circumstances."
-
- Evidence Suggests a National Pattern of Constitutional
Violations
-
- Since 2006, lawsuits have been filed against ICE "in
every region of the country - including two large class actions" and
several with multiple defendants - all alleging a similar pattern of misconduct.
-
- They pertain to illegally entering private homes as well
as other misconduct charges. In March 2009, Jimmy Slaughter, an Arizona
DHS officer, filed suit as well, stating:
-
- "I was at home with my wife when the door bell rang.
I opened the door and noticed approximately 7 uniformed ICE agents with
vests and guns....I opened the door to look at the paperwork and five agents
entered my house....The agents then told my wife to stand in the center
of 'OUR' living room. Not once did anyone say they had a warrant."
-
- Numerous other instances confirm a national pattern of
constitutional violations, including:
-
- -- unannounced pre-dawn raids;
- -- illegal entries into private homes, at times forcibly
with drawn guns;
- -- some with administrative warrants; others with none;
often with no probable cause or consent;
-
- -- unconstitutional searches and seizures;
-
- -- all occupants arrested and interrogated;
-
- -- commonplace use of excessive force; and
-
- -- at times, individuals prevented from calling attorneys.
-
- New York Immigration Judge Noel Brennan ruled on one
case saying:
-
- "It is hard for me to fathom a country or a place
in which we live in which the Government can barge into one's house without
authority from the Third Branch after a probable cause finding. So for
all these reasons I find that what is essentially a warrantless search
in the meaning of the Fourth Amendment....was an egregious violation, and
therefore I suppress all the evidence and order these proceedings terminated."
-
- ICE's 2006 Policy Changes
-
- Three new memoranda issued dramatic enforcement changes
that led to and facilitated nationwide home raids. Fugitive Operation Team
(FOT) annual quotas were raised eight-fold (from 125 to 1000 arrests) and
didn't have to include "criminal aliens."
-
- Another change permitted "collateral" arrests
of suspected civil immigration status violators. These actions "incentivized
the pattern of unlawful behavior" and put tremendous pressure on ICE
agents to deliver. As a result, home raids increased sharply and illegally.
Wrongful arrests became common. Easy targets were chosen, including women
and children, often at the expense of real criminals remaining at large.
-
- Immigrants are some of "the most vulnerable of populations
in this nation's legal system." Most are poor, are unfamiliar with
the law, and many speak imperfect or limited English. Often those seized
have no lawyers, are kept in detention, and are then deported summarily
with no ability to pursue justice. In addition, "traditional civil
remedies are (often) ineffective deterrents to unlawful ICE home raids."
-
- IJC Policy Recommendations
-
- Major constitutional issues are at stake making everyone
potentially as vulnerable as immigrants. If authorities can get away with
constitutional violations against some, they can do it against anyone.
That said, IJC recommends the following:
-
- -- home raids should only be for criminal arrests or
civil ones in cases posing real risks to national security or for persons
with violent criminal records;
-
- -- judicial warrants should be required, not administrative
ones;
-
- -- in all cases, "high-level centralized pre-approval
in advance of any home raid operation" should be required;
-
- -- if judicial warrants aren't obtained, residents' consent
should be required after informing them "explicitly and clearly"
of their right to refuse before entry is made;
-
- -- in all pre-dawn and nighttime raids, judicial warrants
should be required;
-
- -- in all cases, a high-level supervisor should be involved
on site;
-
- -- home raids should be videotaped;
-
- -- ICE agents should be trained on home raid procedures
stressing compliance with the law at all times;
-
- -- local law enforcement agencies should be apprised
of raids and their results;
- -- they should not be asked to participate in or facilitate
lawless activities;
-
- -- emphasis should be on arresting dangerous criminals,
not collateral ones to meet quotas;
-
- -- arrests should be race, ethnicity, and English proficiency
neutral;
-
- -- agent misconduct should be assessed and properly addressed;
-
- -- a clear public complaint procedure should be established;
and
-
- -- illegally obtained evidence should be disallowed.
-
- Obama Administration's Immigrant Detention Policies
-
- On August 7, Washington Post writer Spencer Hsu headlined,
"Agency Plans to Improve Oversight of Immigrant Detention" in
saying the Obama administration intends to "restructure the nation's
much-criticized immigration detention system by strengthening federal oversight
and seeking to standardize conditions in a 32,000-bed system now scattered
throughout 350 local jails, state prisons and contract facilities."
-
- Since 1979, the National Immigration Law Center (NILC)
has represented, protected, and promoted "the rights of low income
immigrants and their family members (and) earned a national reputation
as a leading expert on immigration, public benefits, and employment laws
affecting immigrants and refugees."
-
- It calls US immigrant detention centers "A Broken
System" in a recent report that presents "the first-ever system-wide
look at the federal government's compliance with its own standards regulating
immigrant detention facilities....based on previously unreleased first-hand
reports of monitoring inspections."
-
- Annually, over 320,000 immigrants are incarcerated. They
face enormous obstacles challenging their detention, and they're held under
conditions "as bad as or worse than those faced by imprisoned criminals."
They're kept in three types of facilities:
-
- -- ICE owned and operated Service Processing Centers
(SPCs);
-
- -- privately run Contract Detention Facilities (CDFs);
and
-
- -- Intergovernmental Service Agreement Facilities (IGSAs)
holding two-thirds of detainees - mostly state or county jails plus a small
number in US Bureau of Prisons or other facilities.
-
- Since 1992, immigrant detentions have increased from
6,259 to 20,000 in early 2006 to the current 31,000 total - a number that
continues to grow due to policies discussed above.
-
- NILC learned that detention standards are poorly regulated
and that government efforts to monitor compliance have been "woefully
deficient and in need of a major overall." Testimony obtained from
ICE employees revealed that monitoring is understaffed. Before inspections,
facilities get at least 30 days notice to fix or cover up problems and
abuses in advance. Multiple review levels are used, yet headquarters rarely
requires violations to be corrected and often gives facilities "higher
overall assessments than the review team's original ones."
-
- Systemic problems were also uncovered pertaining to annual
review procedures and their inadequately identifying and correcting noncompliance
with acceptable standards. ICE plans to let private contractors monitor
compliance, yet current failures suggest that new management will let a
broken system fester and worsen as the detention population grows and overcrowded
facilities get further stretched.
-
- Despite repeated calls for reform, greater transparency,
accountability, and better controls, "the government has not taken
effective measures to ensure that even its nonbinding standards are met."
It shows an appalling indifference to some of the nation's most vulnerable
people, no match against a system in place to repress them.
-
- Currently, numerous violations are systemic, serious,
and numerous. They include:
-
- (1) Visitations by family, lawyers and others
-
- Detainee visitations are severely restricted in violation
of clear constitutional and statutory rights, especially to free access
to counsel and close family members.
-
- (2) Recreation
-
- Standards require safe recreational time for physical,
mental and emotional well-being, including for those with special needs
or in segregation. Yet they're routinely denied or offered at the discretion
of facility staff. In addition, programs are way inadequate, and many detainees
get limited or no access to outdoor recreation and a chance to interact
with others in a natural environment.
-
- (3) Telephone access
-
- Many facilities didn't comply with standards. Monitoring
of confidential legal calls was conducted, and restrictive time limits
were imposed. Numerous facilities also prevented detainees from contacting
courts, consulates, and getting access to free legal service providers.
-
- (4) Access to Legal Material
-
- Immigration law is so complex that good counsel is essential.
Yet it's expensive and few detainees can afford it. Instead they must rely
on pro bono help if available or their own resourcefulness. Standards require
facilities to have a law library and an adequate environment to research
and prepare legal documents. Yet numerous facilities have none, and the
limited information on hand is inadequate and outdated. Still other facilities
require specific document requests, even though detainees have no way to
know what applies to their case.
-
- (5) Group Presentations on Legal Rights
-
- Facilities are required to let authorized attorneys or
representatives, on written request, conduct immigration law and detainee
rights presentations. Few do it, and individual counseling is also limited.
-
- (6) Correspondence and Other Mail
-
- Most facilities restrict access, monitor incoming and
outgoing mail, and confiscate items at times. As a result, confidential
correspondence is compromised. At times, identity documents are destroyed.
Detainees miss court deadlines, and they're intimidated from freely sending
and receiving mail.
-
- (7) Administrative and Disciplinary Segregation
-
- It's supposed to be non-punitive isolation to ensure
detainee safety or facility security. Instead it's done punitively for
extended periods for even slight rule infractions. Reports also uncovered
severe privilege restrictions, unsanitary conditions, and poor health care
protection for segregated detainees and the entire facility population.
-
- (8) Disciplinary Policy
-
- They're supposed to protect detainees from arbitrary
disciplinary actions with rules conspicuously posted so they're known and
can be obeyed. Yet most facilities don't do it.
-
- (9) Detainee Handbook
-
- Facilities are required to develop and make available
a "facility-specific handbook" covering policies, rules, and
procedures. However, those having them "presented an inaccurate or
incomplete picture of facility policy" because important information
was missing, erroneous, incomplete, or inappropriate.
-
- (10) Hold Rooms in Detention Facilities
-
- Physical space requirements and design specifications
are supposed to be followed and monitored. Yet poor compliance was found,
including inadequate toilet facilities and detainees held there too long
in violation of rules requiring a maximum of 12 hours.
-
- (11) Detainee Grievance Procedures
-
- They're to assure detainees can file grievances with
uninvolved officers without fear of retaliation. Widespread noncompliance
was found, and most often facilities don't inform detainees of their rights.
-
- (12) Detainee Transfers
-
- Procedures are to protect their security in transit and
make a traumatic experience easier, especially when to locations remote
from their families. Transfers also interfere with attorney-client relations
and harm constitutionally protected due process rights.
-
- (13) Funds and Personal Property
|