Migrant Detention in South Texas
by
Greg Moses
This article previously appeared in Counterpunch.org.
"She
was forced up and handcuffed while in her night clothes."
In a recent landmark report, United Nations Special
Rapporteur on the Human Rights of Migrants Jorge Bustamante said that the
"overuse of immigration detention in the United States violates the spirit
of international laws and conventions and, in many cases, also violates the
actual letter of those instruments." South Texas immigration attorney Jodi
Goodwin agrees.
"I do
not see that the letter nor the spirit of international law is given any
importance in US Immigration law," confirms Goodwin. "In fact,
international law does not really come into play in the legal arena at
all." Considering Goodwin's long experience with migrant clients, we asked
her to respond to other issues raised by the Bustamante report:
GM: Bustamante said immigration enforcement is
being gradually shifted toward state and local agencies. At last count,
Immigration and Customs Enforcement (ICE) reports that 41 state and local
agencies have signed up as "287(g) partners" to assist with
immigration enforcement, helping to identify as many as 45,000 individuals for "possible
deportation." The Associated Press reports that the number of cooperating
agencies could soon reach as many as 100. What effects of this activity can be
seen at the detention centers in South Texas?
Goodwin: The increase in the use of local
law enforcement for immigration law is seen at the detention centers all the
time. Many times people are detained by ICE only after a traffic stop for a
minor violation, like a headlight being out or something, and then the local
law enforcement officers inquire into the immigration status of individuals. I
have seen really sympathetic cases where local law enforcement initiated the
arrest and then the people are whisked 2,000 miles away from their home,
family, community, etc. to be detained in South Texas.
GM: When it comes to immigration law, what is the
difference between a criminal violation and a civil violation?
"People are whisked 2,000 miles away from their home,
family, community, etc. to be detained in South Texas."
Goodwin: The criminal violations of the
immigration law are prosecuted by the
United States Attorney in Federal
Courts. These criminal violations can be subject to jail and or prison
sentences. Civil violations of the immigration laws are processed by the ICE
Office of Chief Counsel. These violations can result in deportation if the
person does not have any relief from removal.
GM: According to the Bustamante
report, in 2006 the USA began to intensify the use of mandatory detentions and
deportations that were put into law in 1996. What effects have you seen of this
recent crackdown?
Goodwin: The biggest effect of the
enforcement crackdown that I have seen is the enormous growth in the population
of detained individuals in the South Texas area. The San Antonio Field Office
of ICE is home to more detention bedspace than any other Field Office in the
US. Beyond that, there is a marked lack of lawyers and pro bono assistance for
all of these individuals that are detained for the most part in very rural,
remote, areas of South Texas.
GM: Bustamante says that
he "heard accounts from victims that ICE officials entered their homes
without a warrant, denied them access to lawyers or a phone to call family
members, and coerced them to sign 'voluntary departure' agreements." How
does this compare with accounts that you have heard from your clients?
Goodwin: Bustamante's account of ICE
actions comports completely with many stories that I have heard from my
clients. In fact, I have heard even more egregious stories than the example Mr.
Bustamante sets forth.
GM: One of your clients? Would you be able to share
a story like that?
Goodwin: Sure, I have heard the ugly
details of many such arrests. Let me take one as an example: I had a client who
was arrested by ICE at her home at around 5:00 am. Agents knocked on the door
loudly yelling, "Police, Federal Officers." Her husband answered the
door half asleep and as soon as he opened the door the agents forced their way
into the home and knocked her husband down. Of course, the agents start yelling
at him and start going through the house to look for people.
My client
was in her bed as was her child. She was forced up and handcuffed while in her
night clothes. The child awoke and saw all of this happen and as expected of a
child started to cry. Instead of showing any compassion at all the agents start
yelling at the child to shut up, then yelling at the parents to make their
child shut up. They had to beg the agents to let her put on clothes before they
took her away.
After being arrested and before physically making it in
transport to the detention center, my client was "asked" to sign a
voluntary removal no less than 4 times. Fortunately for her, she was insistent
with the agents that she would not sign their papers and they would just have
to put her in jail because she wanted to see an immigration judge.
"They had to beg the agents to let her put on clothes
before they took her away."
My client
was not a criminal. She had no criminal history at all. She was married to a
United States citizen and had applied for her "papers" through him.
What was her immigration violation that would warrant a pre-dawn home invasion?
She overstayed her visitor visa.
GM: Rapporteur
Bustamante recommends that, "Immigration detainees in the custody of the
Department of Homeland Security and placed in removal proceedings, should have
the right to appointed counsel." It seems astonishing to me that detained
persons would not have a right to counsel, but maybe you can help us to
understand how the lack of right to an attorney is affecting people in
detention today?
Goodwin: The lack of the right to appointed
counsel is one that has plagued me for decades. The Supreme Court has
characterized the deportation process as non-punitive. Therefore, given that it
is a civil proceeding in nature, the Constitutional guarantees to counsel do
not apply. The lack of access to legal counsel is a huge constraint on South
Texas detainees. Many are confused and do not know what they are being charged
with. Many do not understand the process and procedures of the court system.
Many do not know or have access to information that could prove they have a
defense or are eligible for some form of relief from being removed.
"Many are confused and do not know what they are being
charged with."
GM: Bustamante also seems to be
concerned that Government pressure for deportation is conflicting with basic
human rights to private life and family. He says that laws in the USA put too
much weight on the Government's side. He recommends that USA laws should be
changed to "ensure that all non-citizens have access to a hearing before
an impartial adjudicator, who will weigh the non-citizen's interest in
remaining in the United States (including their rights to found a family and to
a private life) against the Government's interest in deporting him or
her." What are the kinds of human issues that don't get heard under the
current system?
Goodwin: Most human issues are not heard at
all in immigration proceedings. It is extremely difficult for a person to
qualify for any type of relief from being removed. And then, even if one does
qualify, the courts have to be convinced in their discretion to grant you some
type of relief. This is the hardest aspect to make my clients understand: even
though I care about the human issues involved in their cases, the courts and
the Immigration Service do not. Our laws are structured in a way that any
interest in human issues is left out of the equation.
GM: In a related
recommendation, Butamante says that ICE should, "ensure that the
facilities where non-citizens in removal proceedings are held are located
within easy reach of the detainees' counsel or near urban areas where the
detainee will have access to legal service providers and pro bono
counsel." In your experience, is it ever a hardship to represent clients
simply because of the location of the detention centers?
Goodwin: It is ALWAYS a hardship to
represent detainees in remote areas. I live in South Texas and practice here,
but most of my clients are from thousands of miles away. That means their
family and support network are thousands of miles away. Aside from the
logistical difficulty of getting documents and preparing cases, the worst part
is the extreme depressive state my clients develop. For many I am the only
person that ever visits them, and they would benefit greatly from the support
and care of their families being close by. The other hardship is that there are
a very limited number of lawyers who practice immigration law in this area.
There is only one pro bono agency. The pool of available competent lawyers is
extremely thin.
GM: Bustamante is
calling for some fairly serious reforms in the structure of immigration judges.
He says immigration judges should no longer work under the Department of
Justice; rather, they should be
appointed to a truly independent judicial system. What kind of difference would
this make to the practice of immigration law?
Goodwin: It would change in the sense that
the Immigration Judges would not be beholden politically to the Attorney
General. They would be able to make decisions based in law and justice as
opposed to politics and fear. They would be able to pass judgment on the
government as well as the aliens. As it stands the process, even through the
administrative appeals process, is highly weighted toward the government.
"They
should be appointed to a truly independent judicial system."
GM: Finally, Bustamante
says that migrant detention practices should provide more alternatives,
especially for children, but also for women who are suffering from prior
traumas. How appropriate are the conditions of current detention for
traumatized migrant women?
Goodwin: Conditions for women are of
particular concern because of the specialized medical care needs. I have seen
that these medical needs are not met routinely. I have also seen that women,
who have been traumatized by events prior to their detention, are further
traumatized by the further detention. The lack of mental health care also plays
into the conditions for women.
GM: Thank you Jodi Goodwin for helping
us to understand the Bustamante report in the context of South Texas.
Greg Moses is editor of the Texas Civil Rights
Review and author of Revolution of Conscience: Martin Luther King, Jr. and the
Philosophy of Nonviolence. He is a contributor to Red
State Rebels: Tales of Grassroots Resistance in the Heartland, to be
published by AK Press in June 2008. He can be reached at: [email protected].