Wednesday, June 25, 2008

USA Today Story on Lawsuits against ICE by US Citizens and Legal Residents

The link for this is
(June 24, 2008)

Citizens sue after detentions, immigration raids
By Emily Bazar, USA TODAY
LOS ANGELES — Nitin Dhopade, the chief financial officer for Micro Solutions Enterprises, was headed toward the accounting department on the afternoon of Feb. 7 to deliver checks he had just signed. Suddenly, he says, he encountered armed men and women wearing bulletproof vests and uniforms branded with "ICE," which stands for U.S. Immigration and Customs Enforcement.

Dhopade, 47, says he and 30 other administrative workers for the Van Nuys, Calif., company, which recycles used toner and ink cartridges, were marched down a stairwell lined by officers. The workers were ordered against a wall and told not to touch anything or use their cellphones. "There was no way you could leave. You were definitely detained," he says. "None of us were in handcuffs, but there was no way you could say 'I'm leaving.' "

That marked the beginning of a surprise raid that would result in the arrests of 138 suspected illegal immigrants, about one-fifth of MSE's workforce. Also swept up in the same raid were more than 100 U.S. citizens and legal residents, including Dhopade, a naturalized U.S. citizen from India. They say they were illegally detained at the factory for an hour when ICE agents blocked the doors and interrogated them, forbidding them to leave or go to the bathroom without an escort.

Whether their brief detention was a mere inconvenience or a flagrant violation of their constitutional rights is the subject of a growing debate that seems likely to be resolved in federal court. Immigration officials, charged with enforcing the law against the estimated 12 million undocumented foreigners in the USA, are mounting more raids at slaughterhouses, restaurants and factories.

Increasingly, U.S. citizens and legal residents who work alongside illegal immigrants are being detained and interrogated, too. And some, such as Dhopade, are filing claims or lawsuits against the government.

Dhopade says he was a victim of racial profiling by ICE. An ICE agent questioned him about his immigration status and his ability to speak English "because of my skin color," he says. "None of the white folks in the office … that I know of were asked for proof of citizenship. To be asked for proof of citizenship, in this country, it's an insult. This is the United States of America. This country does not require that."

In other immigration raids, citizens and legal, permanent residents have been taken to jail. Jesus Garcia, a former Texas poultry worker, was handcuffed and spent more than 30 hours in ICE custody this year, part of that time in jail. Two co-workers, both citizens, also were arrested. No charges were filed against them.

In April, the Center for Human Rights & Constitutional Law, a public interest law firm here, filed claims for damages on behalf of 114 MSE employees, all citizens or legal permanent residents, also called green-card holders. The claims allege that they were subjected to "false imprisonment" and "detention without justification" and seek $5,000 each in damages from the federal government.

The lawsuits and claims against the government are part of a strategy by immigration lawyers to halt or change workplace raids. Peter Schey, president and executive director of the center, acknowledges that "we're hoping the prospect of thousands of U.S. citizens over time filing claims for damages against the United States government might cause (ICE) to reconsider how these raids are conducted."

"You cannot in this country engage in group detentions of large numbers of people because you think a smaller number within the larger group has done something wrong," Schey says. At the Van Nuys plant, ICE "created a powerful atmosphere of fear and intimidation. People felt like they had been taken hostage."

The rationale for the raids

Julie Myers, the Department of Homeland Security's assistant secretary for ICE, says federal law, Supreme Court decisions and search warrants give ICE the authority to enter workplaces to question "all the people inside," including citizens. She declines to discuss the MSE case, citing the ongoing investigation. But she says ICE agents work fast to separate legal workers from suspected illegal ones.

"When we go in, a lot of people are pretending to be U.S. citizens, and then there are some people who are," she says. "Our goal is to make sure we work as quickly and efficiently as we can so that U.S. citizens and legal permanent residents are free to go."

The stepped-up enforcement protects U.S. workers, she says. "We're trying to create a culture of compliance … so that businesses would start to have incentives to hire only people who are legally entitled to work here."

Workplace arrests by ICE in 2007 were 10 times what they were in 2002. Last year, the agency charged 863 people with criminal violations, such as identity theft, and 4,077 for allegedly being in the country illegally. In 2002, ICE made 25 criminal and 485 immigration-related arrests. Workers arrested on criminal charges face jail time; those accused of being in the country illegally are subject to deportation.

So far this year, ICE has made 850 criminal arrests and detained 2,900 people on immigration violations.

ICE has three primary targets, Myers says: workers who steal the identities of U.S. citizens, such as those who use someone else's Social Security number to gain employment; work sites such as airports and naval bases, which could be particularly vulnerable to terrorist threats; and what Myers calls "egregious employers" — those who knowingly hire illegal workers.

Barbara Coe, chairwoman of the California Coalition for Immigration Reform, says raids "are providing the incentive for at least some of these illegal aliens to get out of here before they are deported. I don't think there are enough raids. There should be more." She says she's sorry legal residents are sometimes questioned during raids but believes ICE needs time to determine who is here legally.

So does Mark Krikorian of the Center for Immigration Studies in Washington. "It's not the end of the world," he says of citizens who are detained. "These people were briefly inconvenienced. Too bad."

'My heart was racing'

Denise Shippy, nine months pregnant the day of the MSE raid, says it was more than an inconvenience.

She had planned to take off that afternoon for parent-teacher conferences and a doctor's appointment. But Shippy, 30, needed to train a receptionist to fill in for her while she was on maternity leave, so she took her two children to the office with her. The raid occurred as she settled Cassidy, 7, and Ricky, 9, into the mailroom for lunch.

As she left the mailroom, Shippy found the lobby filled with ICE agents, and she, the children and co-workers were herded in there. When Shippy tried to respond to an e-mail, she says, one ICE agent said, "Stop typing."

"My rights were violated," Shippy says. "I am a citizen of this United States. I was born here. I'm not who they're looking for. I wasn't allowed to leave. … I couldn't go anywhere and couldn't do anything. Neither could my children."

Although she was upset, she tried to calm her kids, she says. She needed to use the restroom, but held off because she didn't want an agent to accompany her.

"I didn't want to scare the heck out of my kids," she says. "I was trying to be cool and calm for my children. My heart was racing."

At one point, agents started escorting handcuffed workers — suspected illegal immigrants — from the factory floor out the front door. Her children asked why the workers were handcuffed, what they had done wrong and what would happen to them, she says.

"That was when I started getting angry," she says. "My kids should not have had to watch these things. They saw people being led out in handcuffs. These are people who are recognizable to my children."

Shippy, who gave birth to a boy on Feb. 19, returned to work June 9 and says she still feels justified in filing a claim.

"I'm not some money-hungry person," she says. "This is something I'm pretty passionate about. It shouldn't have happened the way it did."

Debate over the law

As long as ICE has a warrant to enter a workplace, Myers says, agents can conduct what she calls a "survey" to determine the legal status of "anyone within the premises."

She cites a 1984 Supreme Court ruling that said factory surveys during immigration raids don't amount to an unconstitutional detention or seizure of those being questioned, even U.S. citizens.

In its ruling, however, the Supreme Court emphasized that the employees in the factory were not prevented from moving around, continuing to work or leaving. The current raids are different from those the Supreme Court approved, Schey says.

ICE can question workers as long as the interaction is voluntary, "but what they're doing (now) is not that," he says, because workers think they have no choice except to answer questions — which may incriminate those here illegally.

Many workers caught in raids don't know they're not obligated to respond, regardless of their immigration status, says Kevin Johnson, dean of the University of California-Davis, law school. ICE "can ask people questions. That doesn't mean people have to respond," he says.

Schey suspects ICE is using search warrants as a pretext to enter workplaces and then arrest as many people as it can to get publicity. "It's in effect a group detention," he says, "not supported by probable cause, … not supported by any law."

Michael Wishnie, a professor at Yale Law School, argues that ICE cannot legally detain or arrest anyone without reasonable suspicion that a specific person broke the law. People should not be detained simply because "they work in the same factory as the person" for whom ICE has warrant, he says.

Kris Kobach, who teaches law at the University of Missouri-Kansas City, counters that police sometimes have to detain a large group to find the lawbreakers among them. He cites, as an example, police looking for two drug dealers in a house where 10 people live. In such a drug raid, "police will reasonably close the doors to the house and detain everybody," he says.

The factory's owners

No fines or charges have been levied against MSE or its managers.

Brothers Avi and Yoel Wazana, immigrants from Israel, started the company in 1994. Last year, net revenue was $95 million. At MSE's headquarters, a 225,000-square-foot building in Van Nuys, workers clean, disassemble, reassemble and test old printer cartridges. Before the raid, MSE employed about 700 people here.

Myers declined to say what prompted the raid. However, ICE began auditing the company in May 2007, focusing on "I-9 forms," which employers use to document employees' legal status. As part of the I-9 process, employers must inspect at least two documents that show identity and legal status, including U.S. passports, Social Security cards or green cards.

MSE was "in compliance with I-9 requirements," says Schey, who also represents the company. "If some of the documents workers presented were fraudulent," MSE has "no way of determining that."

The next month, the company voluntarily began using a government database to verify the status of new hires, he says. Then the company didn't hear from the government for months, Schey says.

"They expected a letter," he says. "Instead, on Feb. 7, ICE comes in like gangbusters."

About 100 ICE agents raided the factory between 3:30 and 4 p.m., says Nora Preciado, an attorney with the National Immigration Law Center. Armed with a federal search warrant, they arrested 130 workers from Mexico, El Salvador, Honduras and other countries on suspicion of being in the country illegally. ICE also had arrest warrants for eight others, who were picked up at their homes or the factory. These eight, identified by ICE during the earlier check of documents, face criminal charges for making false claims of U.S. citizenship or presenting false documents.

Five people arrested in the raids have been deported, ICE says. The others remain, some in detention, some not, while fighting their deportation orders in court.

Avi Wazana did not comment on the cases against his former employees or the methods MSE used to check their immigration status. In an e-mail after the raid, however, he told some of his customers that "MSE … has rejected hundreds (possibly more) of applicants … due to improper documentation."

The ACLU and other legal aid groups sued ICE, saying the detained MSE workers should have been allowed access to attorneys when they reported for interviews after the raid. U.S. District Court Judge George Wu agreed, and ordered ICE to stop interviewing workers. ICE has since allowed lawyers to be present at any interview with MSE workers.

One of the workers interviewed without an attorney present was Maria, a 39-year-old Pacoima resident who worked at MSE for eight years. She asked that her last name not to be used, on the advice of her attorney. "I felt like I had to answer" questions from ICE, she says. "I didn't know about my rights."

Maria was a supervisor in charge of eight line workers. She says she entered the USA illegally 15 years ago from Mexico so she could give her children a better education. One of her three children, a 14-year-old girl, is a U.S. citizen.

Maria says she'll fight to remain in the USA because she doesn't want to be separated from her family, especially her daughter. The girl's father, Maria's longtime partner, is a U.S. citizen and will care for their daughter if Maria is deported.

"She's not going to leave," Maria says of the girl, an eighth-grader. "This is her country."

Jailed 'over a mistake'

ICE's raids foster discrimination, says Domingo Garcia, attorney for the League of United Latin American Citizens. "There's a lot of racial profiling. … If you look like a Hispanic, you're detained or arrested."

He says he plans to file a class-action, civil rights lawsuit on behalf of legal workers detained in raids, including Jesus Garcia, 27, a green-card holder from Mount Pleasant, Texas. Domingo Garcia says he will ask the court to prohibit ICE from conducting raids until it changes its policies to prevent racial profiling.

ICE agents went to Jesus Garcia's home on April 16 in conjunction with a raid on a nearby Pilgrim's Pride poultry processing plant, where he worked marinating chicken meat. Garcia, from Mexico, has been a legal permanent resident for a year and a half. When about 10 ICE agents and local sheriff's deputies knocked on his door, they told him he was using the wrong Social Security number, says his wife, Olivia Garcia, a U.S. citizen.

Though Garcia showed the agents his green card, they handcuffed him and jailed him. He was released a day and a half later after agents told him he wasn't the person they wanted, he says. He had spent the night in jail. "He said it was pretty bad," Olivia says. "People were crying and screaming."

Jesus Garcia, who has since left Pilgrim's Pride for another job, says the mishap cost him three days of work. "I worked hard to get my residency," he says. "And to take me to jail just over a mistake?"

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