A New ICE Policy Endangers Everybody

If you’re mistaken for somebody without the right to a hearing, who do you complain to?

Tuesday, the Trump administration expanded the concept of “expedited removal” to apply to “immigrants who can’t provide documentation that they’re in the United States legally and that they’ve been physically present here for at least two years”.

Expedited removal was created in 1996, and since 2004 it has mostly been used to quickly deport people apprehended while crossing the border illegally or within two weeks of entering the country. For years it allowed immigration officials to remove immigrants without a hearing or a review of their case if they were apprehended within 100 miles of the border.

What’s “expedited” about the process is that there’s no hearing before an impartial judge. Instead, you only get to talk to people who answer to Trump.

It will allow the Department of Homeland Security to deport people without having to place them in detention facilities for weeks or months while their cases are sorted out.

It’s not that cases will “get sorted out” faster, but that the system just won’t bother to sort them out at all. If you look suspicious (i.e., Hispanic) and don’t have believable documents on you, you could be gone just like that. (An exercise to try at home: If you were plucked off the street unexpectedly, how would you prove to DHS that you have been in the United States for the last two years?)

This raises a problem I often called attention to during the Bush administration: Whenever you eliminate due process for ANYBODY, you create a hole in the system that the rest of us could fall through. Back in the Bush war-on-terror days, the hole was to be declared an “enemy combatant”. Nobody outside the executive branch needed to be involved in that declaration, and once it was made, you had virtually no rights, not even the right to present evidence that the government had made a mistake. [Details here.]

The same principle applies to expedited removal. Our immigration officials have made a lot of mistakes, and now we’re eliminating one of the major ways mistakes get caught and corrected.

Consider, for example, 18-year-old native-born Hispanic-American Francisco Erwin Galicia. He spent more than three weeks in ICE detention because he couldn’t get ICE to believe his documents were genuine. If the new policy had been in place when he was picked up, he could have been whisked out of the country without ever seeing a judge.

Forget the specifics of immigration for a moment and just imagine any group of people who have no rights. (That’s exactly what Francisco says he was told when he insisted he had a right to a phone call to notify his mother. “You don’t have rights to anything.” He also didn’t have the right to a shower or decent food. He lost 26 pounds in 23 days.) If you get mistaken as one of those people, what can you do? The person they think you are doesn’t have to the right to tell a judge that you aren’t that person.

Even if you do get to see a judge, you might not correct the mistake if you don’t have an attorney to argue your case. Davino Watson was 23 when he was released from prison on a cocaine charge. ICE picked up him immediately and started deportation proceedings. Despite lacking a high school education, Watson correctly argued that he became a citizen at 17 when his Jamaican father was naturalized. He showed ICE officials his father’s naturalization papers.

ICE investigated his claim by not calling the number Watson gave them and instead contacting the wrong man (Hopeton Livingston Watson of Connecticut rather than Hopeton Ulando Watson of New York). The Hopeton Watson they talked to was not a citizen and did not have a son, so deportation procedures continued. Watson was held for 3 1/2 years before he was released. The $82,500 in damages that a court awarded him was reversed by an appeals court, because the two-year statute of limitations ran out while he was being held without access to a lawyer who would know stuff like that.

And in March, the Border Patrol held a 9-year-old American citizen for 32 hours because she gave “inconsistent information”, as 9-year-olds are prone to do once you’ve scared the crap out of them.

See the pattern? There are more such stories.

And those, I presume, are just honest mistakes made by over-zealous agents. What if someday an administration starts making such decisions in bad faith, and in massive numbers, without any judicial oversight? You might get deported simply because the current government finds your presence inconvenient.

It’s a simple principle: Denying anybody’s rights endangers everybody’s rights.

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  • nicknielsensc  On July 29, 2019 at 9:27 am

    I want to believe your presumption that overzealous agents are acting in good faith, but he more I read and hear about what’s happening inside DHS, CBP, and ICE, the more I fear that presumption is mistaken. In each of the cases you cite (and so many others), ICE was operating from the basic assumption that the person they picked up shouldn’t be here. That’s a conscious decision by the arresting agents and an intentional violation of due process by the agency.

    • weeklysift  On July 29, 2019 at 1:44 pm

      I see your point. What I was trying to emphasize was that the powers that are in place could be used in ways most of us have not yet imagined.

  • painedumonde  On July 29, 2019 at 11:25 am

    Overzealous is not what we need; overzealous defies the Constitution. If supervisors don’t Impress this fact upon their juniors or even themselves, these procedures defy the Constitution – The Bill of Rights! For once a citizen has been (unknowingly) brutalized and stripped of her liberty, the entirety of the fundamental purpose, to protect the liberty of its citizens, of the Constitution is called into question. In the first place, these “laws” tread dangerously close to being unconstitutional AND reality, as they place results before facts.

    The cruelty is the point.

  • jxlec  On July 29, 2019 at 6:36 pm

    Hi Doug,

    I look forward to you posts every Monday. This one is special. It would be a great Guest Column for our local newspaper here is Spokane, Washington, the Spokane Spokesman Review.

    Does your stuff ever get published in local papers? Do you have an established mechanism where a local reader proposes such publication in a local newspaper with your approval?



  • Anonymous  On July 30, 2019 at 12:54 pm

    The criminals that have taken over this government are an affront to all of humanity. When this is all over they need to go on trial at The Hauge for crimes against humanity.


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