Immigration Raids Trample the Constitution Without Securing the Nation

July 10, 2007 by Julia Harumi Mass and Phillip Hwang, Daily Journal

Six-year-old Kebin Reyes was sleeping on March 6 when U.S. Immigration and Customs Enforcement officers stormed into the San Rafael apartment where he lived with his father, Noe Reyes. Noe told the officers Kebin was a U.S. citizen, asking permission to call a relative to care for Kebin while Noe was detained on suspected immigration violations. They refused. Instead, they made Noe wake up Kebin, who watched as officers handcuffed his father. Telling Kebin to put his hands behind his back, the officers took father and son to the ICE booking station in San Francisco.

Kebin missed a trip to the park with his classmates that day. Instead, he spent 10 hours locked in a room with his father, crying and hungry, with nothing to eat but bread and water. ICE agents never allowed Noe to call someone to pick up Kebin. It was only when a relative heard from neighbors what happened and came to the ICE facility that Kebin was able to leave.

Noe and Kebin are among thousands of immigrants who have been rounded up in the U.S. government's "Operation Return to Sender." Homeland Security Secretary Michael Chertoff and other officials have claimed that the campaign launched in May 2006 is aimed at capturing "fugitive aliens," with the highest priority on apprehending individuals who pose a threat to national security or the community and whose criminal records include violent crimes.

However, 94 percent of those arrested by the San Francisco Fugitive Operations Team between January 1 and March 31, 2007, did not fit within the category of "criminal fugitives." A majority were not even subject to outstanding deportation orders according to a letter from the acting ICE director to Congresswoman Anna Eshoo.

ICE agents search Latino neighborhoods, going door-to-door, according to witness reports. Reports by media and advocacy groups that Latino U.S. citizens and lawful permanent residents have been interrogated, threatened and even detained, support the conclusion that ICE is raiding communities on the basis of race and ethnicity, rather than specific evidence of unlawful presence. In the name of protecting communities from dangerous criminals, ICE agents have targeted local residents - with families, jobs and longstanding ties to the community - based solely on their presence in predominantly Latino neighborhoods.

Just as troubling as the sweeping breadth of recent raids are accompanying reports of constitutional violations. According to Secretary Chertoff and local ICE officials, the administrative warrants sometimes proffered by ICE agents to gain access to homes do not in fact authorize residential entries under the Fourth Amendment. However, when residents inform agents that the individual whom ICE claims to be looking for is not there, the agents enter anyway, often without consent.

The residents' submission to the questioning that follows is hardly voluntary given the agents' open disregard for residents' protests, the officers' uniforms and visible firearms and the early-morning timing of the raids. Nevertheless, evidence gathered under such circumstances is typically admitted in removal proceedings where Fourth Amendment violations must be deemed "egregious" in order to be suppressed. According to local and national reports, lawful entries and seizures by the agents are the exception, not the rule.

Moreover, ICE agents routinely identify themselves as "police" during raids, misleading residents. This practice has caused panic and undermined efforts by local police to encourage immigrant communities to come forward and report crimes without fear of deportation.

"We've worked hard to develop a relationship with the community," said a Richmond police captain after a recent raid. "If people are afraid to call police, that's a problem for all of us."

While Kebin's rights as a U.S. citizen were clearly disregarded by the arresting officers, many people do not realize that undocumented immigrants also have rights to be free from unreasonable searches and seizures. Racial profiling is similarly unconstitutional in the immigration context; it is well established that perceived national origin does not form a valid basis to detain a person for immigration questioning.

Operation Return to Sender's excesses are yet another chapter in a long history of abusive immigration enforcement, in which organizations such as the American Civil Liberties Union and the Lawyers' Committee for Civil Rights have consistently defended immigrants' rights. The national ACLU was founded in part to challenge the Palmer Raids of the 1920s, when then-Attorney General A. Mitchell Palmer launched a campaign to detain and deport immigrants based on their political views and activities. The ACLU of Northern California challenged the World War II incarceration of Japanese-Americans, workplace immigration raids, ideological discrimination in immigration and English-only laws, among other issues. Currently, the ACLU is challenging the inhumane treatment of immigrant detainees throughout the country, including the prison-like conditions being experienced by children in Hutto, Texas.

The Lawyers' Committee for Civil Rights has challenged illegal arrests, detentions and abuses by immigration agents across the country and has brought nine cases in Northern California alone. LCCR has sued agents for a wide array of illegal conduct, including shackling a U.S. citizen to a chair for more than four hours, deporting refugees to countries where they faced persecution and subjecting immigrants to strip searches without cause.

In response to this latest round of immigrant roundups, the ACLU of Northern California, the LCCR and the San Francisco Bay Guardian filed a Freedom of Information Act request on March 6 seeking information about reported abuses. We have yet to receive the requested records. Meanwhile, scores of similar reports of abuse continue to stream in across the country, leaving little doubt that serious problems exist in current immigration enforcement practices.

To vindicate Kebin's rights under the Fourth Amendment and to prevent future abuses, the ACLU of Northern California, LCCR, ACLU Immigrants' Rights Project and the law firm of Coblentz Patch Duffy & Bass filed a lawsuit against ICE agents in April.

Like Kebin, children all over the country have been traumatized by seeing their parents swept up and taken away or by being left behind without care after school when parents have been arrested without notice. Post-Traumatic Stress Disorder, severe depression and anxiety mood disorders are likely to result, according to Dr. Amana Ayoub, a senior staff psychologist at the Center for Survivors of Torture.

"To put it simply," Ayoub said, "the removal of a family member in a dehumanizing, traumatic manner will harm the children of that family - left untreated, it is not a question of what disorders they will develop, it is a question of when."

After the raids in which Kebin was arrested, the San Rafael City Schools Board of Education wrote to Congresswoman Lynn Woolsey, reporting, "The ICE raids sent our schools into a state of emergency. ... Many students were and remain distracted from school work as they worry about their loved ones. Most of these children are, by and large, American-born, full-fledged citizens with a right to a quality education and to live in this country for the rest of their lives."

Sweeping and overbroad immigration raids terrorize immigrant communities, making residents less able to participate in society, while doing little, if anything, to improve the safety and security of the nation. The government has authority to make and enforce immigration laws, but must do so in accordance with the rule of law and fundamental principles of fairness and due process. Those are the core values that make this America.
     
Julia Harumi Mass is a staff attorney for the ACLU of Northern California. Philip Hwang is a staff attorney at the Lawyers' Committee for Civil Rights of the San Francisco Bay Area.