A Sanctioned Double Standard for Immigration Detainees

By Pilar Marrero, NewsTaco

More and more men, women and children are being thrown out of the country without recourse or defense. As far as the US law is concerned, immigrants have less rights than felons.

Fernando Figueroa Barajas, his wife Aunaly Lasha Moore, and her mother, Alicia
Fernando Figueroa Barajas, his wife Aunaly Lasha Moore, and her mother, Alicia

Case in point, Fernando Figueroa Barajas, a 21 year old Mexican man who has lived in a small town called Pascagoula, Mississippi since 2011. Immigration authorities detained him and became his judge and jury; then they launched an investigation when he sued them a few weeks ago alleging mistreatment and violations of his civil rights while in custody – he asked to be released as a victim of criminal mistreatment.

“They had an ICE officer speak with him without his attorney being present. They said he could tell his story of mistreatment. They supposedly looked at the allegations and concluded they did nothing wrong,” said Figueroa´s lawyer, Andrew Free, of Nashville.

An administrative wormhole

Still pending, the federal lawsuit claims that Figueroa was held illegally in solitary confinement for 5 months after being beaten by the ICE agents who took custody of him from local police. He had no criminal record, but the fact that he carried no driver’s license alerted police during a traffic stop. Immigration agents were called and he was arrested.

Free indicates that authorities said Figueroa was suicidal and that´s the reason they isolated him for 5 months.

“They´re violating their own solitary confinement policy”, said the attorney. “He was convicted of no crime, he was a civil detainee. There was no punitive or corrective purpose to this decision. Far too often, isolation is used to punish the individual for other reasons, like complaining about mistreatment.”

Legal loopholes undermine the constitution

On June 6 Figueroa Barajas lost the battle: he was deported to Mexico, leaving behind his American citizen wife of 2 years, Aunaly, 19, and a pending complaint in federal court.  Throughout the process he didn’t see a judge: a previous deportation order was “reinstated.”

That previous order occurred in 2011, when the young Figueroa was caught crossing the border and was subjected to “expedited removal,” a tool that allows immigration authorities to process deportable migrants quickly and without a chance to fight the case in court. According to a recent report of the Migration Policy Institute, 75% of the people being deported today are processed in this way: no day in court, no chance to fight, just an immigration agent to decide their case.  Judicial review is severely limited.

Figueroa’s case was not an aberration: it is the norm since 1996, when a series of changes in immigration laws created two procedures that have since been applied to him and to many others and eliminated judicial review of the administrative decisions: “expedited removal” and “reinstatement of removal.

There’s no room for defense

In both of these cases the law allows immigration officers to serve as both prosecutors and judges, making decisions that often fail to take critical factor into account, such as long-standing ties in the country or the existence of US citizen family members.

Tania Unzueta, an organizer with National Day Laborer Organizing Network (NDLON), worked with activists in Tennessee to get public support around Figueroa Baraja’s case.  In spite of the publicity, they couldn’t stop his deportation or the manner in which he was treated, she says. This is a problem of “accountability,” she adds.

“There is no one to review the decisions that ICE makes as to whether to deport someone or not, except ICE itself,” said Unzueta. “How can we trust that the decision they are making is fair, especially in the case of someone who has clear complaints about violations of civil rights. This is a problem not just with Fernando, but that we are seeing with other cases around the country.”

A sanctioned lack of due process

Neither ICE nor DHS spokespersons returned messages seeking comments on the specifics of the Figueroa-Barajas case. Immigration authorities generally don´t comment on specific cases, especially when a lawsuit is pending.

But civil rights attorneys and organizations question the system’s fairness and what they call a lack of due process.  They indicate that a criminal defendant could never be held for that long without a conviction, or without a bail determination. And punishment would not arrive without a day in court.

It’s a matter of a legal definition

But the Supreme Court of the United States has, since the late 1800s, maintained that deportation is a “civil,” rather than “criminal” sanction, that deportation is not a punishment as such, but rather an administrative mechanism to return immigrants to their native countries.

Civil right lawyers keep challenging that idea. “Those whose whole life is here and have been deported for a violation not serious enough to be criminal, seems fundamentally wrong,” said Ahilan Arulanantham, senior staff attorney at the ACLU Immigrants Rights Project. “You generally don´t lose your liberty for a civil penalty, you may get a fine, but deportation and loss of liberty are a lot more serious.”

According to DHS and ACLU numbers, the non judicial removals, previously used in just a handful of individuals, is now the norm. In 1995, 1,400 immigrants were deported in this way, by 2012 that number had increased to 313,000 non judicial removals, and all time high.

Speed vs Fairness

“The Obama administration has prioritized speed over fairness in the removal system, sacrificing individualized due process in the pursuit of record removal numbers,” said Joanne Linn, of the American Civil Liberties Union in an article published recently. “Nonjudicial removals violate our constitutional tradition and cannot be reconciled with an administration that has repeatedly stated its commitment to immigration reform.

Charles Medina, an attorney who has represented cases in which reinstatement was used on a previously deported migrant with no other record, says it’s a very difficult case to defend.

“It would be ok if these people were criminals. In this case, they really have no rights, it’s almost arbitrary. They should go back to the old law, where you could reinstate a removal but before a decision was made you could get a judge to look at the equities of the case and select who should stay because they have family ties, for example”, said Medina. “But as it is, none of that matters”.

Pilar Marrero is the national immigration reporter for ImpreMedia and author of Killing the American Dream.”

[Photo by CBP Photography/Flickr]

CBP Photography/Flickr]

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