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Do Immigrants Have Constitutional Rights In Escondido?

February 6, 2011

The Attack On Constitutional Rights Of Immigrants In Escondido

The immigration judge stared at me with one of those “Do you think I’m stupid?” looks.

He had asked me why my client had been placed in custody.

I explained my client was driving to church on a Sunday morning around 7:30 a.m. with his two U.S. citizen daughters when he was stopped by a police officer. The officer had passed my client driving in the opposite direction.  He made a quick u-turn, put his lights on, and pulled him over.  The officer said it looked like my client did not have his seat belt fastened.

Not believing me, the judge turned to the government attorney. His notes confirmed the seat belt story.

A Legacy of Racial Profiling

On the morning my client was apprehended, the police car was followed by a second government vehicle.  An immigration agent was inside.

My client had valid identification, dating back to the legalization programs of the 1980s.  His seat belt was securely in place.

However, he lacked permanent resident documents.  He was taken into immigration custody.  The government opened proceedings to deport him.  Two weeks later, I began his deportation defense at immigration court.

He had never been stopped, arrested, or convicted.  By all accounts, he was a honorable, hard-working, and loving father.  His wife had passed away.  He was the sole parent.  His daughters were earning A’s and B’s in high school.

As a low-wage landscaper, he drove a truck 30 years old to carry his equipment.

It is unlikely the true reasons he was stopped and apprehended will ever be known.  But to many immigrants living in Escondido, there is a suspicion my client’s truck and ethnicity sparked his arrest.  Whether or not the police and immigration officers admit it.

In their view, racial profiling is the norm, not the exception.

They have heard countless horror stories of abuse at the hands of law enforcement.

Traffic Checkpoints: Does The Means Justify The End?

Immigration opponents do not give any credence to these fears.  The issue, to them, is black and white.  Immigrants either have legal status or they are law breakers.

If they are here without lawful status, in the anti-immigration view, the means justify the end.  It doesn’t matter if the means infringe on constitutional safeguards.

A few months ago, as noted in No End In Sight For ICE – Escondido Police Department Partnership, immigration officials decided to expand a joint law enforcement operation which had been hatched in secrecy.

It was noted the collaborative effort would be extended five months, at which time it would be evaluated.  Five months have passed.  The program, now known as  “Joint Effort”,  was recently made permanent.

Still, much is unknown about the program.

It is unknown how many immigrants have been apprehended and arrested as a result of this partnership.

It is unknown how many immigrants with serious felony convictions, immigrants with minor arrests, or immigrants with no arrests have been detained and placed in deportation proceedings.

Nor is it known what, if any, limits on police encounters with the public have been placed on immigration agents.

Against this backdrop, legal questions surrounding Escondido’s traffic checkpoints program have heightened.

The American Civil Liberties Union, which has labeled the driver’s license checkpoints as “fishing expeditions for illegal immigrants”, is considering filing a class action lawsuit against Escondido.

Protests against the checkpoints have been organized at various checkpoint sites.

A travel advisory regarding racial profiling has been issued by local community groups to people visiting the city.

Some residents have started filming videos to record interactions between law enforcement and immigrants.  Even though these videos, alone, won’t make the case for discrimination or due process violations, they can provide invaluable supporting evidence when such cases reach the court system.

It’s clear a legal showdown is nearing.  When it does, the means will not justify the end.  That’s the constitutional guarantee of due process.

Adding Fuel To The Constitutional Fires

In a recent interview with KPBS reporter Ruxanda Guidi about the legality of the checkpoints, Escondido Police Chief Jim Maher explained:

“It’s wrong to not try to use every available legal tool to remove criminals,” says Maher.  “If you lived with a gang member, child molester, drug dealer next door, that the police could go and have deported, and we refused to do that – then I would be more upset.”

Instead of allaying fears, Maher’s comments added fuel to the constitutional fires.

First, Maher makes no effort to disguise the focus on immigrants.  He does not address how U.S. citizen gang members, child molesters, and drug dealers are treated when they are stopped.  There is no indication they are forced to go through an extensive background review to ensure their compliance with probation or parole requirements.

Second, a traffic checkpoint should be limited to a rational purpose related to driving.  The proper aim is to get unregistered drivers or drunk drivers off the road.  It’s not a process to identify, detain, and deport undocumented immigrants.  Although Chief Maher may assert such consequences are secondary, the presence of immigration agents at the site or actively on call raises due process concerns.

In addition, the Escondido checkpoints do not simply lead to arrest of immigrants with criminal records.  Like other measures implemented by the Escondido police department, they have led to the detention of immigrants who, despite coming into contact with police, would not normally be taken to jail.

Some reports have surfaced that over 50% of those apprehended by the Escondido Police – ICE partnership lack any criminal history.  Unfortunately, unless either agency releases statistics, it’s not possible to verify exact numbers.

Likewise, detention figures for the traffic checkpoints have not been provided.

Nonetheless, this much is known.  Many innocent, non-criminal immigrants, like my client, who have pending petitions for lawful status are harmed by Escondido’s assault on our country’s civil liberties.

Escondido: The New Arizona?

Throughout California, most police departments refrain from asking about immigration status during routine contacts. Not Escondido.

Some legal analysts compare Escondido’s actions to Arizona, where immigrants without criminal convictions are frequently arrested and sent to ICE for deportation purposes.

As an Escondido immigration lawyer, I do not understand why any city would engage in questionable legal practices which cause unnecessary public divisions, especially when other possibilities exist to meet the needs of both parties.

Over the past few years, it’s been nearly impossible to understand the behavior of anti-immigration zealots.

The answer might be much simpler in Escondido.

Perhaps Chief Maher is simply posturing to become the California Joe Arapio.

By , Immigration Law, Policy, And Politics

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