Immigration Detention––for US Citizens

This past April in Monroe County, Florida, Peter Sean Brown was detained by Immigration and Customs Enforcement (ICE), despite being a US citizen who was born in Philadelphia. Brown filed a lawsuit against the Sheriff of Monroe County for unlawful arrest and detention and cited that the Sheriff’s Office ignored Brown’s “repeated protest, offer to produce proof [of citizenship], and the jail’s records” and sent his information to ICE. ICE then proceeded to fax the county jail an I–247A “detainer request” form that flags Brown for deportation and requests the jail to hold Brown for an additional 48 hours. Although the manager from the restaurant he worked at called the Sheriff’s office and explained to them that Brown was a United States citizen, the Sheriff’s office complied with ICE’s detention request and detained Brown for three weeks before taking him to the Krome Detention Center in Miami, which is designed for immigrants awaiting deportation. According to his lawsuit transcript, Brown also reportedly attempted to make phone calls to ICE to explain the mistake but was unable to reach them the several times he called throughout that three-week period. Once at Krome Detention Center, however, ICE agents agreed to look at Mr. Brown’s birth certificate and verified that he was indeed an American citizen and ordered for release. Brown was released after twenty-two days of unconstitutional detention.

Race has been central part to immigration enforcement, especially in the southwestern region of this country, a notion reaffirmed by court rulings like the 1975 Supreme Court case United States v. Brignoni Ponce. In a quarterly issue of the Washington University Law Review titled “The Case Against Race Profiling in Immigration Enforcement,” Law Professor of Chicano Studies Kevin Johnson explains that racial profiling in immigration enforcement “deserves special scrutiny because it disproportionately burdens persons of Latin American ancestry in the United States, the majority of whom are US citizens or lawful immigrants.” He also goes on to explain the harmful consequences of this racialized enforcement for all Latinos, US citizens or not: “Generally speaking, whether they are US citizens, lawful immigrants, or undocumented aliens, persons of Latin American ancestry or appearance are more likely than other persons in the United States to be stopped and interrogated about their immigration status.” Johnson also makes the important point that African-Americans and other racial minorities are also routinely targeted by immigration enforcement officials. His theory of racialized immigration enforcement raises an important question regarding ICE’s central dogma of keeping their hands off of American citizens: who fits its portrait of American citizens and why are citizens repeatedly targeted?

Cases of United States citizens being wrongfully detained for immigration purposes are neither few nor far between. These situations are able to occur due to systematic processes that enable an immigration enforcement agency to misidentify and then subsequently detain an individual that is an American citizen. These processes can begin with immigration enforcement roving patrols, who can pull over vehicles to question the occupants’ legal status, up to reforms and amendments that were added in the Immigration and Nationality Act of 1996, like task force agreements that allow local law enforcement to execute certain immigration enforcement responsibilities up to jail enforcement agreements that allows their officers to screen individuals.

An example of immigrant roving patrols targeting a legal citizen was analyzed in a St. Mary’s Law School journal entry titled “On the Border Patrol and Its use of Illegal Roving Patrol Stops” chronicled a lawsuit where several Latinos in South Texas were racially profiled and wrongfully arrested and then detained for being in the country illegally after being pulled over. In one case an immigration judge concluded that “[the Border Patrol agent’s] only basis for the agent’s stop was that [Jose] looked like an alien and that, in arresting Jose in an act of racial profiling.” The immigration judge proceeded to terminate Jose’s deportation and removal proceeding due to lack of evidence he was in the country illegally and charged the Border Patrol agent of violating the constitution.

There are various examples of American citizens finding themselves in complicated and difficult situations in which ICE agents have refused to either even review their immigration file or to accept and act on different kinds of proof of citizenship. For example, US citizen Davino Watson was held in ICE custody for three and half years after ICE agents refused to believe Watson’s claims that he was a citizen through his father’s naturalization. Agents then proceeded to misidentify his father on their database and consulted the incorrect immigration records, alleging that he was not a US citizen. Even after federal lawyers discovered that they had made this mistake, ICE refused to release Watson. A similar situation also occurred in July of 2016, when Sergio Carrillo was also detained by ICE for a number of days and and moved to an immigration detention center where ICE officials refused to listen to his claims of citizenship. Jennie Pasquarella, the Director of Immigrant’s Rights for the American Civil Liberties Union stated the following about Carrillo’s case: “I think it’s particularly alarming that they never took any steps to investigate his citizenship. He claimed he was a citizen over, and over, and over again and nobody took him seriously.”

In one of the most well-known cases surrounding the unlawful immigrant detention of US citizens, Gerardo Gonzalez was represented by the American Civil Liberties Union where court filings revealed that a Los Angeles Police Department office wrote on Gonzalez’s booking record that he was born in the country of Mexico. Gonzalez stated on the record that he was born in California and had a proof of citizenship. Despite that fact that he communicated he was a native born citizen to officials, and, because of what was recorded on the booking file, ICE placed an immigration detainer on him and held him for six months without giving him the opportunity to prove his citizenship.  After receiving a copy of his passport from a family member, ICE proceeded to cancel his detainer request yet still listed in the cancellation notice that his nationality was Mexican. These are the concrete consequences and realities of racial enforcement tactics that are not held accountable to a standard of accuracy or transparency.

A study done by the CATO Institute that incorporated research over ICE’s detention record in Texas found that ICE wrongfully detained 3,506 American citizens across the state over the eleven year period from 2006–2017. CATO researchers applied this same rate of wrongful detention in relation to the total number of detentions and estimated that a total of 19,873 US citizens nationwide have been wrongfully detained and accused of being in the country illegally over this same period. National Public Radio reported that the number of US citizens who have wrongfully detained by ICE might be even higher. They cite the Gerardo Gonzalez v. Immigration and Customs Enforcement and Duncan Roy v. County of Los Angeles ACLU class action lawsuits in which lawyers state that 21,000 Americans have been held illegally during the past four years. This surpasses CATO’s estimate of nearly 20,000 in the past ten years by over one thousand citizens.

How are tens of thousands of United States citizens being targeted and subsequently detained by ICE? What processes are leading and enabling ICE to hold these citizens indefinitely, ranging from a time period of a handful of days up to several years? An introductory insight into this answer can be provided by ICE official Lori Haley, who said “ICE would never knowingly take enforcement action against or detain an individual if there was probative evidence indicating the person was a US citizen. Should such information come to light, the agency will take immediate action to address the matter.” The enforcement that ICE practices is built off the premise that they must not target American citizens. By following this guideline and holding it as the golden standard of their method of operation while simultaneously still detaining thousands of American citizens indicates that there is a fundamental disconnect between those they expect to be American citizens and the reality of American demographics. As noted previously, tens of thousands of United States citizens are estimated to have been wrongfully detained by ICE. Sometimes abstract statistics impede our ability to recognize the quotidian injustices that wrongful detention entails.

Racial profiling in immigration enforcement is a reality that affects both the undocumented and documented American community. In early 2017, immigration officers raided a rural Pennsylvania poultry transport and disregarded the “No Trespassing” signs despite not having warrants or documented probable cause for targeting this company. Witnesses testified that the ICE officers only lined up the Latino workers for questioning over their immigration status. Immigration judge John Carle said that the argument accusing ICE of racial profiling was very strong and that they had “egregiously violated” the Constitution. Abrupt raids and targeting of minority communities that do not have individuals with arrest warrants or outstanding legal records negatively affects both the undocumented and legal resident and citizen communities.

Although this incident occurred less than two years ago, racial profiling in immigrant enforcement has been around for a long time and even been litigated in the country’s highest court. United States v. Brignoni-Ponce is a 1975 Supreme Court case between a U.S. citizen from Puerto Rico and the United States Border Patrol. Border Patrol officers claimed that they questioned and followed Felix Humberto Brignoni-Ponce because of the “Mexican appearance” of Brignoni-Ponce and his passengers. The Court ruled that targeting individuals because of “Mexican appearance” is unconstitutional and a violation of the Fourth Amendment. However, the Court listed a couple of examples of characteristics that together warrant a reason for interrogation on citizenship status: “characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut,” “driver’s behavior,” and “characteristics of the area in which they encounter a vehicle”. Many immigration lawyers felt that this verdict and list of characteristics allow immigration agencies to racially profile individuals, given that these characteristics can be drawn from racial and ethnic stereotypes.

A Stanford Professor studied a specific case where this established relationship between ICE and law enforcement at the county level significantly affected Latino students at public elementary, middle, and high schools in a study titled 'Vanished Classmates: The Effects of Local Immigration Enforcement on School Enrollment.’ In just a two-year time period, schools within 55 counties that collaborate with ICE lost around 300,000 Latino students. Interestingly enough, the majority of the students that disappeared from these communities and schools were United States citizens. It is safe to assume that many of these children must have been in mixed status families, with at least one undocumented family member. In a New York Times article in which this study was discussed, columnist David Leonhardt writes, “The only plausible explanation, Dee believes, is immigration enforcement. As the counties cracked down, families with at least one undocumented immigrant fled. So, in some cases, did Latino citizens subjected to harassment or racial profiling. And the children in these families suffered.”

The idea that hundreds of thousands of Latino students, both undocumented and citizens, felt compelled to move out of their communities due to the impact of the policing and heightened presence of immigration enforcement speaks volumes about their reality. If elementary school students do not feel confident about their own safety or the safety of one of their family members, there needs to be reform over how and which communities are being racially targeted.

Throughout this political moment, immigration enforcement agencies––especially ICE––have been held under intense scrutiny after a series of controversies surrounding family separation policy, illegal solitary confinement, detention of pregnant women, prolonged incarceration of children, and other morally questionable policies and practices. Extremely important questions have been raised over how they treat undocumented immigrants and families. The movement #AbolishICE has gained a lot of political traction since the family separation policy was implemented in June 2018. Several prominent Democrats have generally backed that position, including potential presidential candidates and Senators Kirsten Gillibrand and Elizabeth Warren. There are many reasons to object to the method in which immigration enforcement operates in our current era and racial profiling is an important one. This agency has to be held accountable for its underlying mission to target certain racial and ethnic groups over others.

Has racial profiling gone too far now that thousands of American citizens have found themselves in ICE detention centers, a few bureaucratic mistakes away from deportation? I would argue that it has, and this large amount of citizen detention only represents a deeper issue of whom ICE is really targeting.

Maria Castillo