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.
as a dual citizenship/US resident, was coming back home to The USA along with my 86 years old Canadian dad, when we were stopped at the border for secondary inspection. When we were asked if we had anything to declare I said yes that we had a carton of cigarettes and nothing else. We were asked to go inside waiting for the officer to search my car. It took the officer approximately 30 to 45 minutes, at that point she came back with 3 ziplock sandwich bags that contained mandarin peels only in one, 2 or 3 wedges of a rotten mandarin in the second bag and 11 rotten grapes in the third bag. Those ziplock bags were found in my kids’ school bag packs that were left in the car for 8 days because they were on their February break which started February 15-22. The officer also found a croissant and an orange that was peeled and one that wasn’t in my dad medicine bag which his residence provides for him to take with his medicine. The officer back claiming that I didn’t declare these and that I will be fined 300$ for failing to declare these fruits. I was shocked that she wants to punish me for things found rotten in my kids’ school bags which were from the states going back to the states, meaning that they are not imported, and how can they be if they are rotten and there is hardly anything else left in the bags, and the two oranges found in my dad’s plastic medicine bag is just his snack because his blood sugar drops and most importantly my dad forgot that he had them because he’s forgetful at his age, that he started to cry. At the point, the officer explained that I either pay the 300$ fine or that I choose to go to court , which I chose the latter because of the ridiculousness of the situation especially that this specific officer seems to be always targeting me. The female officer said the process will take approximately 45 minutes to type the incident report, well it took about an hour and half. When she came back with report, I disagreed to signed it because it wasn’t accurate. She wrote in it that I had like 6 oranges and that wasn’t the truth, and I told her I have the right to refuse to sign a false statement. At that point, the supervisor on duty officer .. was yelling at me, he became very verbally aggressive, which I didn’t ask him to not yell at me, at that point he threatened me to take me to the back which means he’s arresting me. I said I will go voluntarily but he will not get me to do anything i’m agreeing to do. He started to yell louder to hurry that this is is not going to be on my time, all I was trying to do is explain to my dad what was happening since he’s hard of hearing and he doesn’t understand English. My dad has heart disease he had an open heart surgery and several other heart related procedures and any stress will trigger his angina. You can imagine the stress we were both under at this point, i’m Scared of being arrested and no one will attend to my dad and no one knows where we are and what’s happening to us. The supervisor took me to the back and leaves me in, at that point I started to raise my voice that he needs to come and talk to me or that he needs to let me call my lawyer at which he replies he needs few minutes to calm down. He was saying that I better off paying the 300$ fine instead of going to court which was going to cost me 1000$ at which I told him I don’t care about the money and that yes I want to go to court so I can my chance in front of the judge to tell him about the abuse I was subjected to tonight, my exact words were” pay the 1000$ so I can stand in front of the judge, raise my right hand and tell the judge what happened here tonight and so will you, you will stand in the judge raise your hand under oath and tell him what you did tonight” he said you can’t tell me what to say to which I replied you will be under oath. PS the supervisor was not going to discharge me unless I signed even if the statements is false. And I was anxious to attend to my dad. After spending 3 hours in there, my dad and I were discharged along with instructions that I will receive the paperwork regarding the court in the mail. We went out to the car, my navigation screen on my car was blank please take into consideration that my car is brand new, i was furious, i was heading back inside to ask what they did to my car, I was met at the door with that supervisor along with two big men who were ready to throw me on the floor to arrest me. PS i am 123 lbs, and very calm, there is no way I needed that many men to talk to me. But I was waiting for my day in court which so far never came. A couple of days later I was emptying some cleaning supplies I had with me when I made that trip, I found out that the female officer had unscrewed a bleach kitchen cleaner, hoping to ruining my brand new car, because I can tell you with all honesty and certainty that this officer is very vindictive. I had this officer in the past, even if someone else already searched my car she would a double search. It’s very ridiculous to go look inside my kids backpack which again came from the USA and was going back to the USA and finding some rotten fruits peels and choosing to subject me to that much abuse over such a ridiculous find. At this point, i’m fearful of crossing the border which I do often since my family lives there. I’m afraid that I will be targeted again and discriminated against. I’m scared dead that they will put something illegal in my car and they will claim that they found it in my car. For the first time in 20 years that I lived in the USA and 10 years in canada I am scared for my life and my safety. Since that day I get stopped on average for 45 minutes even when I don’t have anything. This complaint yielded nothing. What’s next? Please help