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ACLU Class Action Suit Alleges Threats, Coercion By Border Patrol

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June 4, 2013 1:02 p.m.

ACLU attorney Mitra Ebadolahi will head the Border Litigation project in San Diego.

Aide Vasquez
is a United States citizen, her husband Gerardo Hernandez-Contreras is a plaintiff in the Lopez-Venegas v. Napolitano case.

Related Story: ACLU Class Action Suit Alleges Threats, Coercion By Border Patrol


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: A new effort by the American Civil Liberties Union to ensure that people here illegally are not exploited. The border litigation project will focus on how immigrants in custody are treated by law enforcement. And in that spirit, the ACLU is announcing a class action lawsuit against the department of Homeland Security, alleging Border Patrol agents intimidated people into signing away their rights. Joining us is my guest, ACLU attorney Mitra Ebadolahi. She will head the border litigation project in San Diego.

EBADOLAHI: Thank you so much for having me.

CAVANAUGH: Aide Vasquez is here, her husband signed a voluntary departure form after being detained by Border Patrol agents. Thank you for being here.

VASQUEZ: Thank you so much for having me.

CAVANAUGH: There are quite a few people that people in the U.S. illegally don't have any rights. Could you explain their rights?

EBADOLAHI: That's a misconception. Due process and other basic constitutional protections apply to everyone in the United States, whether documented or not. And that is part of the goal of this project, to ensure that both citizens and noncitizens are treated with the basic constitutional projections that we all deserve and are owed.

CAVANAUGH: Does the ACLU usually get many cans for people from family members of people who are detained by border agents or the detainees themselves?

EBADOLAHI: We do. We and many other advocacy and community-based organizations throughout Southern California and the border region are constantly being contacted by people who in various ways have been affected negatively by the lack of oversight and accountability that currently exists in the immigration enforcement mechanisms. So people issuing abused or deprived of their rights without being given adequate opportunities to stand up for themselves or get the relief they may be owed.

CAVANAUGH: And that's the reason for this special litigation project?

EBADOLAHI: It's a new initiative that builds on work that's been going on for quite some time within the ACLU and many other organizations who have been active along the border for decades. Our project is designed to bring litigation resources to bear so when advocacy and other efforts to correct abusive policies are failing, we can take further action toward litigation. My counselor part James Lyle in Arizona has just opened our new office in Tucson to tag-team with me to make sure we are part of a coordinated effort to make sure U.S. citizens and noncitizens are treated fairly.

CAVANAUGH: Will you just be responding to complaints from people? Or will you be actively monitoring the activities of border agents?

EBADOLAHI: The goal is both. And it's immigration and customs enforcement authorities and other government authority, including local law enforcement who may be partnering with immigration authorities in ways that are unconstitutional or otherwise illegal. We intend to create comprehensive documentation systems so that we can get a grip on the full scope of the various problems, and then to choose from that information the most strategic ways to litigate and otherwise bring our advocacy resources to bear to correct those problems.

CAVANAUGH: Let me talk to you about this class action lawsuit announced today. The suit claims Border Patrol agents and I.C.E. used misinformation, deception, and coercion to get people who have been picked up without papers to sign what's called a voluntary departure form. What is that form?

EBADOLAHI: Voluntary departure is a process by which an immigrant can choose to leave the United States without going through formal removal proceedings. And some immigrants may choose to do that for various reasons. The process itself is not the problem. The way the process is implemented in Southern California by the immigration enforcement authorities is what we are challenging in this lawsuit. The form allows the immigrant to say that they choose to leave the country on their own without going through a hearing or other process to figure out whether they could stay in the United States. That's what voluntary departure is. The phrase doesn't change even when it's affected through coercion. So what we're challenging is effectively involuntary departure, but people are being forced to sign these forms and are kicked out of the country. They're signing their own summary compulsion orders because they're not adequately informed of the consequences of those forms, they are told if they don't sign, they'll be detained for prolonged periods of time, they are threatened that if they don't sign their family members may be harassed or abused, etc.

CAVANAUGH: What does this lawsuit allege?

EBADOLAHI: We have had stories of individuals who have experienced a wide range of abuses. In our complaint there are -- plaintiffs include people who were told if they didn't sign the form, they would be detained for months, which is not true. They could have been released on their own recognizance or a small bond. We have people who are threatened with acts of violence or retaliation against their family members. We have people who are told that they can easily fix their papers in Mexico, so they're given erroneous legal advice, which is just patently false. We have told who are told they just need to sign a form to get their papers or other personal effects back. They're not told what the legal consequences of the form are. People are given the form in English when maybe they only speak and understand Spanish. Those are all versions of these abuses that we've heard about thus far and that we're challenging through this lawsuit.

CAVANAUGH: The department of homeland security was contacted by KPBS but had no immediate response to this lawsuit. They say they will release a statement which we will post on our website, Let me move to you. Your husband was caught up in -- well, you can tell us the story. He was on a cellphone to you when he was stopped by a police officer; is that correct?


CAVANAUGH: And that therefore -- what happened at that point?

VASQUEZ: Well, the police officer asked him for identification. He didn't have any California ID. So he immediately -- suspected that my husband was here illegally.

CAVANAUGH: And at that time, he turned him over to border agents?


CAVANAUGH: Okay. And you did something rather extraordinary.

VASQUEZ: I arrived at the scene, yes, and I told the police officer you know what? I'm his wife, we've been married seven years, we have two kids together. And this is his full name. And he's, like, well, are I don't take your word for it. I have to find out yourself. Five minutes later, Border Patrol pulledum.

CAVANAUGH: And you are a U.S. citizen; is that right?

VASQUEZ: Yes, ma'am.

CAVANAUGH: So how long had your husband been living in this country?

VASQUEZ: He has been here since he was 14. So now he's 29.

CAVANAUGH: Okay. You are a plaintiff, one of the plaintiffs in this lawsuit?

EBADOLAHI: Her husband is a plaintiff.

CAVANAUGH: And whoever can take this question, what does this lawsuit allege the border agents did once her husband was in custody to coerce him to sign a voluntary departure form?

VASQUEZ: Well, they told him two things. They told him, you know what? You have two options, either you go to jail for who knows how long, or you could sign the voluntary departure form. And you go to Mexico and your wife can ask you to come back legally. They never told him about there's a 10-year penalty. We didn't know about that.

CAVANAUGH: So you're assuming that his assumption was that he could sign this form, go back to Mexico, maybe call you up, and you could get him back in the country; is that right?

VASQUEZ: Yes, yes.

EBADOLAHI: Many people don't know that there are bars on reentry to the United States for people who have been here unlawfully. If you've been here unlawfully for over 180 days, there's an automatic bar on your reentry into the United States. If you've been here for a year, there's a 10-year bar. So people being presented with this form and threatened with being detain or incarcerated think it would be easier for them and their family members to sign the form, go to Mexico, and be brought back to the United States through status through their partners. They don't realize that there are difficult barriers to such reunification with your family, given the statute and the laws as they currently exist.

CAVANAUGH: On the website, it his voluntary departure has fewer consequences than being removed from the country. Are there cases when that is true?

EBADOLAHI: Yes, there are. One of the things we allege in our lawsuit is that the government is violating the regulations that governor this process by refusing to exercise its discretion. Under the law, when an immigration officer offers an immigrant voluntary departure, that officer has discretion to give the immigrant up to 120 days to get his or her affairs in order before departing. Immigrants who knowingly choose it may find it's easier for them given their personal circumstances to accept voluntary departure rather than go through a lengthy and difficult removal proceedings if they know they don't have a strong claim to stay in the United States lawfully. Unlike those immigrants, our plaintiffs are immigrants who would have a very strong claim to stay in the United States lawfully, who have family members, deep ties to the United States, and who would not choose to depart if they understood the consequences of leaving. And our plaintiffs were not given the period of 120 days to get the information to talk to a lawyer to put their affairs in order. They were summarily expelled often within 24 hours.

CAVANAUGH: And you're alleging that because he did not know that information, he made a choice that is going to keep him out of the country for several years.

EBADOLAHI: That's right. And that's a violation of due process rights that apply to citizens and noncitizens alike under the constitution. You cannot give up your rights without knowingly and voluntarily giving up those rights.

CAVANAUGH: Where is Gerardo now?

VASQUEZ: He lives in TJ, in Tijuana.

CAVANAUGH: And how long ago did this happen?

VASQUEZ: This was back in November. But going back to what she was saying, that they didn't give my husband not even 24 hours to think things through, he was stopped by cops around 11:00 AM. By 2:00 AM the next morning, he was already in TJ.

CAVANAUGH: What kind of impact has this had on your family?

VASQUEZ: Destroyed my family. We are broken. We are not the same happy family we used to be. My kids suffer so much. My son wouldn't eat, wouldn't sleep, he said he was staying up for dad to come home. I mean, I explained to my daughter in a way that it wouldn't affect her so much. I told her, well, are there's some officers that won't let dad come back. She's, like, what if I asked those police officer fist they let my dad come home, do you think they'll let him? What am I supposed to answer to her?

CAVANAUGH: Do you see him often?

VASQUEZ: We do. We do, at least once a week. I mean, because of economic reasons. And I have to work.

CAVANAUGH: Why would the Border Patrol pressure who are here illegally to sign this form instead of going before an immigration judge?

EBADOLAHI: It's something that we don't fully understand. And we hope to understand better through the process of this lawsuit. There may be some incentive structures that are not publicly known that provide some form of reward for officers who deport more people. It's really hard to say. We have no way of knowing why our government officials would use our taxpayer dollars in this way to tear apart families. Again, these are people who have no criminal backgrounds. They're not -- the Obama administration has made very clear these are not the kinds of immigrants who are priorities for deportation. They're people who have lives and families here in the United States, who have jobs, who pay their taxes. And we just don't know why this is happening. It may be that -- there's some indication that there's more paperwork to fill out when you don't accept voluntary departure. There may be some bureaucratic inertia involved. And I think part of it, honestly, and this goes back to the broader project of the border litigation strategy, part of it is the kind of inertia that comes from years and years of a lack of accountable and meaningful oversight. In the last decades, we have had an enormous influx of resources here at the border where Congress has allocated more and more funding for a buildup of border resources. There has not been a commensurate increase in training and mechanisms to ensure our protection services are protecting our liberties. Because we can have both, security and human rights alongside the border, and that's our goal.

CAVANAUGH: In closing, there's an effort underway by activists to pressure the Obama administration to end deportations entirely until the immigration reform volt is completed in Congress. Is this new ACLU border litigation effort in any way influenced by that spirit?

EBADOLAHI: We're influenced by the came core values, I think, which is that people -- immigration is complicated. Especially along the border, you have mixed families. People who are U.S. citizens who are married to nonU.S. citizens, that's very common. And we want to find a way to fix our broken immigration system such that people's lives aren't ruined, such that families aren't torn apart. And so to the extent that removing people rapidly without process, without adequate information, violets those core precepts. We are against it, and we hope to through this lawsuit and other efforts create a more just order.

CAVANAUGH: I was just informed that the public affairs officer of the U.S. immigration and customs enforcement has just sent us a message that as a matter of policy, they don't comment on pending litigation. But they may still send us something that we will post on our website if indeed they do. Thank you both so much for coming in and speaking with us.

EBADOLAHI: Thank you so much.

VASQUEZ: Thank you.