Sunday, December 31, 2006

Probable cause for immigration stings questioned

The raids on the Swift&Co. plants earlier this month raised a myriad of legal questions about racial profiling, and the rights of those detained to legal representation and due process. Although these raids were high profile and received national attention, similar actions have been taking place on a smaller scale throughout the country all year long that have garnered little attention outside their immediate areas.

For example, since spring, small farmers and orchard owners in western New York have watched as one by one longtime workers have been taken into custody during an increasing number immigration raids. The raids have led to a record 189,924 deportations nationally during the fiscal year that ended Sept. 30, up 12 percent from the year before. In Buffalo alone deportations were up 24 percent with a total of 2,186.

This increase in enforcement has led to serious questions about just how ICE and DHS determines who is to be targeted for arrest. The case of one Danbury Connecticut day laborer has led a group of Yale Law School students to inquire into the methods used by immigration officials to determine just how the profiling for undocumented immigrants works.

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Stung in the Search for Work
December 31, 2006, New York Times

As he does six mornings a week, he showed up on Sept. 19 outside Kennedy Park and, bracing his cup of coffee, mingled with the other day laborers waiting for job offers from landscapers or contractors. A gray car approached and a driver wearing a hard hat said he needed three fellows to tear down a fence. He offered them $11 an hour. Mr. Barrera and two others squeezed into the car.

Minutes later, in a nearby parking lot, the three laborers stepped out and were seized and handcuffed by a half-dozen men in green jackets. The hard-hatted driver and men in green turned out to be Immigration and Customs Enforcement agents.


The question hovering over the sting — one that a group of Yale Law School students are asking — is, how did the man in the hard hat know that Mr. Barrera and the others were illegal aliens?

The students, who work in the Jerome N. Frank Legal Services Organization, a training clinic, filed a Freedom of Information request this month for documents about the arrests. They want to know what “reasonable suspicion” the federal agents had for assuming that the 11 men were illegal aliens. Standing on a street corner while being Hispanic is not enough, the courts have ruled.

True, if you pick out a laborer at random from the Kennedy Park job bazaar, chances are you’ll choose someone who is in this country without a visa. So the federal agents had the odds in their favor, batting 11 for 11 by simply asking who wanted a job.

But is that how this country is supposed to work? The Fourth Amendment protects people against “unreasonable searches and seizures” and requires “probable cause.” The public would be outraged if agents lured a Connecticut Yankee in suit and tie into a car and took him for a drive while checking his credentials. Yes, immigration authorities have an obligation to enforce the law, but, they have to do it in a manner that passes constitutional muster. That would mean that before seizing Mr. Barrera, the authorities would have had to gather evidence that he was here without a visa. “You can’t look at an individual and tell whether they’re documented or undocumented,” said Staci Jonas, a third-year law student at Yale.

The students who filed the Freedom of Information request also want to know what role Danbury officials played in the sting


…Stings are a legitimate, and necessary, tool of law enforcement. But they are usually based on evidence that the person under investigation is likely to commit a crime. When undercover officers buy cocaine, they buy from someone who they know has been seen selling drugs

As was seen in the Swift&Co case and similar raids earlier this year in Stillmore Georgia, ICE often casts an extremely broad net when looking for undocumented workers, often taking in both US citizens and legal permanent residents in the process. If linguistic skills and skin pigmentation are to be the sole determining factors in ICE's decision making process as to whom to target, the question must be raised as to what makes their process any different from that of the Minutemen vigilantes who go to work sites looking for undocumented workers.

How do the minutemen propose to determine an immigrant's legal status? According to the group's national training coordinator, they have a simple test. They ask suspected "illegals" a series of simple questions, such as what their favorite food was. If the worker couldn’t answer the questions, Thompson said volunteers should assume the worker is undocumented and report him to his employer or to law enforcement

When the lines between the practices of the federal government and vigilante style "justice" becomes so dim as to make them nearly indistinguishable, it is perhaps time for some serious reevaluation of these government practices.

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