Musings on Immigration

Our Globally Recognized Team of Immigration Lawyers Sharing Knowledge and Providing Counsel on Immigration Issues that Affect You, Your Business and Your Family

Challenged: ACLU Filed a Law Suit against ICE for Shackling Immigrants during Court


The American Civil Liberties Union (ACLU) recently filed a lawsuit against U.S. Immigration and Customs Enforcement (ICE) and other law enforcement agencies to challenge the practice of shackling immigrants before being led into a courtroom.  See “ACLU Sues ICE for Shackling Immigrants in Court”, http://www.newamericamedia.org, May 14, 2012.  The lawsuit was filed on the basis that there would be an unfair perception of detained immigrants as violent criminals if they are handcuffed.  

Further, the lawsuit claims that being handcuffed deprives a detainee’s rights to fair representation and equal rights while in court in that communication with their attorneys will be more difficult, and they would also deprived of the right to take any notes during their proceedings.

One of the most obvious issues with this unfair practice is that it is well-established that only violent criminals are subject to being handcuffed, so of course, there is an automatic perception that each of these immigrant detainees is comparable to a violent offender.  Statistically speaking, ICE compiled evidence which shows that 95 percent of immigrant detainees do not have violent felony records. 

So, why do ICE and other law enforcement agencies insist on shackling immigrant detainees where the vast majority are not violent offenders?  It is for the same reason the majority of Americans who are on the other side of the immigration debate insist that immigrants in the United States without lawful status are automatically criminals, that all immigrants without status don’t pay taxes, that they don’t contribute positively to society, and that they only deplete our society of valuable resources and benefits.  It is our country’s misconception that undocumented immigrants are bad people simply because they might be residing in the U.S. without legal status.  And so it must also be our country’s misconception that an individual who flees horrific circumstances in their own country to seek safety and a dream in the U.S. can only be a bad person.  Maybe if immigrants are shackled in the courts of our country, it will be easier for a judge, a prosecutor, a juror, and a member of the public to view them as a criminal so they can justify separating these people from their families, or sending a child back to a country he or she has not seen since before they had the ability to even form memories?  It is always easier to dismiss an individual who doesn’t appear deserving of compassion – surely a person in handcuffs cannot be a hardworking father who works in a factory sixteen hours a day to support his children, so they can benefit from the educational opportunities that he never had.  Right?  For those who oppose the rights of immigrants in this country, it does seem the easier solution.

These are the very reasons why it is a violation of where our country’s morals should be for law enforcement agencies to paint the picture of an undocumented immigrant as an individual who is simply a hardened, dangerous criminal.  A perfect example is an article where a woman was kept in handcuffs in the custody of ICE after being the victim of domestic violence in Brazil where she was bound and raped by her abusive husband and his brother.  In this situation, who is the one actually engaging in the violence?  Who is the one more closely associated with her violent husband in Brazil?  Is it the woman who is being handcuffed in much the same manner, or is it the agency compounding the violent acts this woman suffered already?  She escaped to the United States to beg for protection from a horrific situation just to walk right back into the hands of her attackers.  Is that really what our country means when we insist that our immigration laws are meant to protect those that are fleeing persecution in their home countries?

We can only hope that the ACLU is successful in arguing that there is no justifiable reason for an immigrant detainee without a violent criminal record to be visibly restrained by shackles for all of the world to judge.

Cynical Rollback Against Victims of Violence

Congress is currently trying to reauthorize the Violence Against Women Act (VAWA) this week.

This Act, as it stands, allows battered spouses to petition for their own legal status, should they be in an extremely abusive relationship where their U.S. citizen or permanent resident spouse has isolated them from friends and family, beaten them physically, verbally threatened them with deportation, sexually forced themselves onto them, psychologically demeaned them, and controlled all their marital finances. It is essentially a romantic and mutual relationship that turns into a slave-master relationship. The lack of status makes an awfully abusive relationship worse because the abusive spouse knows he can use the immigrant spouse's lack of a status as a tool to coerce, manipulate, and control.

It is not uncommon to hear an abuser tell their immigrant spouse, "If you call the police, they will never believe you because you are illegal - they will deport you and you will never see your children ever again." Even more frightening for victims involve instances that after they have done the right thing by calling the police and watching the abuser get arrested, they experience the agony of watching their abusive spouse get bonded out, to come back and threaten them. They are told that the police can do absolutely nothing to protect them from the violence, and that more harm will be done if they cooperate with law enforcement and the district attorney. Where can a battered spouse turn to for help? They have no place to live and no place to work, because the abusive spouse has taken their documentation and prevented them from working legally by refusing to petition for the battered spouse.  The victim has furthermore been isolated by the abuser from knowing anyone who could help. This is why VAWA was passed - to help those battered spouses in need.

This Act also authorizes immigrants who are victims of crime to receive a "U Visa" and eventually permanent residency, if they cooperate with law enforcement authorities as the victims of violent and qualifying crimes, and if they suffer substantial physical or psychological harm. My clients have in the past ranged from victims of domestic violence to survivors of attempted homicide. Congress believed it was important for law enforcement authorities to get all the help they needed, because immigrants are often afraid of cooperatng in a climate of deportation-only policies. These regulations encourage the immigrant community to come forth and cooperate with police, prosecutors, and judges, without fear of reprisal for their status. It is a win-win for the criminal to be investigated and prosecuted, and the victim to get temporary legal status on a path to permanent residency.

Cue in the proposed Republican House of Representative bill that was introduced recently (HR4970, Rep. Adams - R-FL). If passed, this bill would have a blizzard-iculously chilling effect on victims of domestic violence and crimes. In essence, the bill makes it nearly impossibly for a battered spouse to report abuse or a victim of a crime to obtain a U visa.

First, it would make it extremely difficult for abused aliens to self-petition for immigration relief. Government adjudicators will be able to inform the abuser of a battered spouse that they have been accused. Knowing this, battered spouses will be less likely to come forth and break the cycle of domestic violence. Does anyone envision the abuser saying, "Oh yes, Mr. US Citizenship and Immigration Services officer, I did beat my wife, threaten to deport her, and have repeatedly kept her from working by not filing for her documentation because I want a housewife who serves me?" Common sense dictates that the abusive spouse will not take responsibility for their abusive behavior, and will instead turn around and threaten, harm, and possibly kill their battered spouse for reporting them. Not to mention, an abusive spouse will be given more power to coerce their battered spouse and tell them, "if you do not stop applying for VAWA, I will tell them that you married me for the papers."  Do we really need to give abusive spouses more power?  This is a serious flaw in this bill.

Second, it would make U Visas more difficult to obtain. The victim would have to report a crime to the police within 60 days, cooperate on an active case with law enforcement, would have to identify the perpetrator or have information regarding the identity of the perpetrator, and would be out of luck if the statute of limitations lapsed on the crime embodied in the abuse. The bill would limit the benefit to those cases where the police have a perfect case to investigate and prosecute a suspect in custody within a certain time period.

In all seriousness, let's get real. The world does not reflect what we watch on CSI and crimes do not get solved within an hour. Cases take time to solve, for perpetrators to be identified, for victims to come forward, and prosecutions to be undertaken. Many of them are unsuccessful. Victims are often afraid and delay in reporting a crime. Police have limited resources and inactivate a case, though the victim was willing to cooperate fully. Perpetrators are not always identified in the dark. I have a client who was shot in the head from behind in a drive-by shooting and survived. His brother was fatally shot besides him. He would be denied a U Visa under this new bill. This bill will only lead to victims not reporting crimes and not being cooperative – the opposite of what we should be striving for to ensure safe communities.

The bill also states that the U Visa immigrant would not be able to seek permanent residency in four years. At this point, they will no longer have any status and likely be forwarded to removal proceedings for deportation. This does not encourage cooperation with law enforcement - in fact, it will hinder it. I do not foresee many victims saying, "I want to stay in the United States for four more years, so I can get deported along with my children in four years."

Why then push to make it harder for victims to obtain these benefits? My educated guess is that there is a misguided belief that there is too much fraud in immigrants who seek these benefits. In my opinion, there is very little evidence to support this assertion to, so as to raise the standard to obtain these benefits and to limit these benefits.  The standard to obtain a VAWA benefit and a U Visa is already high enough and require vast amounts of evidence, when often there is little.

Victims of violence deserve compassion, not suspicion. This bill in the House of Representative only makes a difficult and tragic situation worse for thousands of victims. I encourage you to take action and notify your representative that the system of adjudicating VAWA petitions and U Visas was already working, albeit not perfectly, and to vote against the House version of the bill. If you do not know who your representative is, please go to http://www.house.gov/representatives/find/. If you would like to send a template email to your representative against the bill, please go to http://capwiz.com/aila2/issues/alert/?alertid=61277726.