Guest post by Kirsten Zittlau. Ms. Zittlau is an immigration attorney living in San Diego, California. She has volunteered dropping water in the California desert near the Mexico border for over two and half years. Ms. Zittlau has been an attorney since 2002 but made the switch to immigration law last year in order to advocate for immigrants and fight against the abuses of power by the current administration.
We read about the unlawful conduct and human rights abuses of U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP) on a regular basis. Months ago it was children dying in CBP custody. More recently it was the abhorrent reports of thousands of children being sexually assaulted by the staff of government-run shelters. Whenever something like this is exposed, we see outrage on social media, we discuss it amongst our colleagues and friends, and everyone emphatically states that “something must be done.” Only what is that “something”? And by whom will it be done?
As an immigration attorney and volunteer, leaving water in the mountainous desert along the California/Mexico border, I see the abuse of power by ICE and CBP on a constant basis. Approximately two weeks ago, a law-abiding family man and citizen of the UK was forced to end his trip to the U.S. and fly home to London earlier than expected – straight from the Otay Mesa Detention Center. He flew into the U.S. a month or so earlier without any issues and on a valid visa. But when he and his U.S. citizen nephew decided to briefly cross the border for dinner in Mexico, they had no idea what awaited them when they attempted to return to the U.S. The nephew was understandably distraught in telling me what followed — His UK citizen uncle was detained, taken into CBP custody (“las hieleras” or the ice boxes) where he was given food once a day, received no medical care, and was forced to sleep on a mat in filth. CBP informed him that his visa had been “revoked” (with no explanation) and he would be transferred to ICE custody. After six days in CBP custody and several additional days in an ICE detention center – plus some pleading emails and voice messages by myself – I was told he had been “denied entry” by CBP and would be allowed to return to the UK on his own dime – which he did. Here I would like to add a crucial detail: This UK citizen was born in Afghanistan, has brown skin, and speaks English with an accent. Do I believe this was wholly unwarranted racial profiling coupled with an utter abuse of CBP’s broad power at ports of entry? Absolutely. Can I prove it? No.
My clients regularly report ICE making factual and legal misrepresentations to them. ICE has told several of my clients variations of the following: “You should come down to our office – there is an immigration court case against you and it will save time,” when of course no Notice to Appear has yet been issued commencing removal proceedings. Then there are the many clients who are stopped just outside their homes or in their cars and report ICE not presenting them with any warrant or accusation of any sort. Instead, in what seems to be a fishing expedition, they are asked where they are from, could they show their identification, do they have legal status in the U.S., and so forth.
In light of the Board of Immigration Appeals’ decision in Matter of Barcenas, I am not surprised at ICE fishing expeditions. In that decision, the Board stated that what ICE says in their I-213 reports (i.e., the document used as evidence in removal proceedings regarding the basis for the arrest and charges) is presumed to be inherently trustworthy. I am convinced ICE uses these individuals’ identification to look them up in various computer systems, find immigration history (e.g., a voluntary return) or criminal history (e.g., an old DUI), and reverse-engineer the required reasonable suspicion by then stating in the I-213 “the subject was located after doing various database records searches.” While I cannot prove ICE is using the Matter of Barcenas presumption of inherent trustworthiness to rubber stamp illegal apprehensions based on racial profiling, I see these suspicious I-213 reports on a far too regular basis. Much like in traffic court, where one is testifying opposite a uniformed highway patrol officer, my clients are usually no match for an ICE officer’s testimony, and its presumption of inherent trustworthiness. And despite filing motions for subpoenas, I do not ever even get to the stage of questioning the ICE officers. Thus, given current law – especially in the Ninth Circuit – I am also not surprised the motions to suppress and to terminate removal proceedings by myself and other immigration attorneys are rarely granted.
Back to the question of what can be done and who should do it: The answer at first appears deceptively simple – as ICE and CBP ultimately fall under the executive branch, one would think that the judicial or legislative branches can and should hold ICE and CBP accountable for these abuses of power. With respect to the judicial branch, several lawsuits are pending against both ICE and CBP, yet the unlawful conduct and human rights violations continue. The slow-moving nature of a federal lawsuit as well as official immunity and other legal hurdles to suing these agencies (e.g., the award of damages to individual families not being felt by the individual officers given the size of the budgets of ICE and CBP) make it apparent that the judiciary is not the branch best-equipped to effectively and efficiently “check” ICE and CBP.
This brings us to the legislative branch, which could certainly theoretically enact legislation providing an oversight investigatory committee with respect to ICE and CBP abuses of power and other unlawful conduct. Yet under the current administration and political climate, passing legislation at all – let alone legislation establishing a body to rein in the agencies responsible for filling the for-profit corporate-owned detention centers – is not happening.
In sum, for the foreseeable future, the government has provided no effective means of regulating ICE and CBP abuses of power, yet there are other areas outside of the legal system and government which need to be explored and further utilized. The first is immigration attorneys and activists reporting these abuses to the press and on social media. The court of public opinion still carries weight. After U.S. citizen activists, who were unduly detained and sent to secondary inspection at the port of entry, went to the press with their stories, CBP curbed this conduct. Perhaps more importantly, however, immigration attorneys and activists must disseminate “know your rights” information – including, in particular, the traps of which to be aware – to as many undocumented people as possible. We cannot allow the stories of the unlawful and often inhuman conduct of ICE and CBP to continue. Indeed, the reported conduct appears to not only be increasing in severity against undocumented immigrants, but these agencies – particularly CBP – are now targeting U.S. citizens. The implications of this – especially viewed via the historical lens of the rise of fascist totalitarian police states – should be as concerning to everyone as the human rights abuses themselves.