Thursday, August 13, 2009

The Nobodies

Fleas dream of buying themselves a dog, and nobodies dream of escaping poverty: that one magical day good luck will suddenly rain down on them-will rain down in buckets. But good luck doesn't rain down yesterday, today, tomorrow, or ever. Good luck doesn't even fall in a fine drizzle, no matter how hard nobodies summon it, even if their left hand is tickling, or if they begin a new day with their right foot, or start the new year with a change of brooms.
The nobodies:nobody's children, owners of nothing. The nobodies: the no ones, the nobodied, running like rabbits, dying through life, screwed every which way.
Who are not, but could be.
Who don't speak languages, but dialects.
Who don't have religion, but superstitions.
Who don't create art, but handicrafts.
Who don't have culture, but folklore.
Who are not human beings, but human resources.
Who do not have faces, but arms.
Who do not have names, but numbers.
Who do not appear in the histories of the world, but in the police blotter of the local papers.
The nobodies, who are not worth the bullet that kills them.

Eduardo Galeano, "The Nobodies"

Thursday, August 6, 2009

What Good is a Right if You Can't Enforce it?

I learned some very cool stuff about "What good is a right if you can't enforce it". on the Sunday class I took through CSTI. CSTI is the Community Strategies Training Initiative, an annual training and leadership conference for non-profits in the West. It is put on by the Western States Center .

In the workshop we began by trying to define a right. We each wrote down about what we thought was a right we had. We came to the conclusion that there are two kinds of rights, inherent-the kind we are born with, and those ways of treating people we have made social contracts with-legal rights. We focus mostly on legal rights that we have agreed upon and are written into the U.S. Constitution, especially the bill of rights.

Rights can be framed as actions that compel the government to act, but also may protect us from the government. For example, the idea of equal marriage. LGBT equality is both working to protect people from the government from being intrusive into who they love, but also wants the government to in action allow personal civil contracts with the people of our choosing. With that contract other privileges will be granted, hence making LGBTQI people more equal with their peers.

We used immigration as the model, but many of the things could also apply to other rights and times when we are unfairly treated by law. Immigrants are a specially vulnerable population because they are not granted the same rights as citizens, but they do have some rights under federal law just for being humans who deserve dignity.

First we have to recognize that immigration law's history was in state law. for the 1st 100 years of this country, states decided upon immigration and had to enforce immigration. Once it was decided that it was a matter of international treaty and covenants that made immigration legal, the federal government began enforcing the policies that congress decided. It is not written into the constitution that the federal government and it's agencies is responsible for immigration law enforcement, but it is defacto the way it is.

There is this wall that is a violation. Before the violation we have our rights intact, after the violation the rights have been tattered, and recourse is necessary for the scale of justice. Even when a reparation has been made, still there is no way to ever go back to before a violation. Community organizers and community education is necessary before and after a violation to prevent more violations, but also as part of repatriations.

For example, before a violation occurs, there is a necessary action of education about what to do if your rights are violated, and even what those constitutional rights are. There is also a need for people to have resources, safety plans, and prepare in case a violation is possible and they are at high risk. Risks can be minimized without compromising life, but there should be a plan. In the case of undocumented immigrants, they should know that they are much more likely to be picked up and disappear (detained) if they ride in a car or drive. For some people this may mean it is a good idea to ride the bus more than have their own car. They should also know that other risks of their rights being violated rise if they live or associate with other undocumented workers. If they engage in illegal activities they are also at higher risk.


it is possible they will for some reason become a target of ICE. If they do know their rights they may not be able to stop what happen, however the important thing is they can prepare.
But even if they minimize their risk, they should prepare with other actions like having a plan. For example, it may be a good idea to save money for a bond if detained. They should also make arrangements for their children and families with a place to go in an emergency. The immigration lawyers suggested that they have set up a power of attorney for someone to care for their family in the case they disappear. They should talk to a couple of lawyers about their situation prior so that they have someone who is their representation which becomes very important if they are detained. And if they are partnered or live with another undocumented person, they should have a safe place to go to if their partner is detained so that their family isn't further dismantled by and ICE arrest or raid.

This lead to the rise of the Immigration Code Enforcement (ICE). All immigration laws are civil laws, not criminal law. Immigrants, although not granted the rights of citizens, are protected under the constitution as being "people", yay for that. And since ICE is a federal agency, it must obey the constitution in it's actions. Under the 4th amendment we have the right to be free from unreasonable searches and seizures. The search is of especial important in the way that ICE has gone to arresting people in their homes. Right now, ICE agents will bang on the door and ask if they can "come in". If the person at the door is an adult, and there is reason to believe they live in the home being visited, then they can grant a search of the premises. If the person knows their right, really, there must be a search warrant issued by a judge. It must be a judge because a judge is a third party. They are not law enforcement or a citizen in this case. Education is of special importance here because if the person's whose home is being invaded knows their rights, they would know to ask for a warrent. Even if they know this much about the 4th amendment, then there is the barrier of knowing that ICE warrants are issued by administrative order NOT from a judge. This means a person may give consent under incorrect circumstances. Also it is documented that innocent people who happen to be at home during an ICE home invasion will be physically detained and treated as a criminal threat. children may watch their mothers and fathers treated like violent offenders, and even pregnant women will be handcuffed to chairs as ICE asserts its authority. This invitation into the home to arrest a person, or to rifle through their drawers looking for their documents, or even into closets and around the home, is an unlawful search. The handcuffing of others in the home may be unreasonable seizure, but if a person gives consent they have less legal recourse.

I think a little more of the description of how the ICE program works would be useful here. ICE will decide to do a raid in various ways. Right now, this group of immigrant lawyers in Portland are trying to understand it better. Their are using tools like the Freedom of Information Act, & state laws that give access to better find patterns of what is going on. If you visit the CSTI website, there should be a link to some google docs that people are asked to fill out about where raids are happening. The hope to google map in time and space where raids and arrests are happening so they can better predict them or better protect rights by knowing who is being targeted. People can currently request from the states and IcE past arrest information for people. Check the website examples of the information they are interested in.

ICE is detaining people through raids at workplaces. When a person gets taken by ICE for being undocumented there are different barriers to them getting justices, in this case the 5Th am=amendment, due process. ICE in some ways is very efficient. usually 24-48 hours after an arrest they begin moving the arrested folks to several nation-wide detention centers. For most people in the west, when this happens, the family is sent into crisis, there is no plan, and suddenly the family member is being sent hundreds, or thousands of miles away from where they were taken. This only further traumatizes them and the fear hurts them and keeps them silent and in inaction to regain their rights or assert their rights. Because of the number of people who are taken by ICE recently, sometimes detained people will also be moved into a different legal district then they were detained in. This becomes a special problem with legal representation. Because of the quick move, they may their legal council is out of touch with them, and legal council where they are moved to may not be as available or responsive to their needs in the immediate. This disrupts their right of due process. Also, language barriers plus the pressure by ICE agents, and the lack of council combined create a place where ICE detainees will have their right to due process infringed upon and can end up harming themselves.

This is in the case of an ICE raid. There is also the case of when an individual is detained after a civil infraction. The way that the program works now is that in some places, ICE will deputize some sheriffs and some city police officers. This means they can arrest people for not being documented. In Idaho, this is not the case. In Idaho, what happens is that an officer of the law, no matter a sheriff, State police, or city officer, may pull someone over for an traffic infraction. Because the person can not show documents to who they are, they will be cited for the infraction and the officer has the authority to release them (which normally happens to documented people) or detain them. If the officer decides to detain them, they are transported to a local prison, usually a county prison since few cities have their own jails. At this time, they contact ICE and tell them to "come and get'em". The individual can be held for how ever long the infraction allows, legally. The problem is this thing called an ICE hold. An ICE hold is 48 hours that law enforcement is allowed to hold a person before ICE is required to come and get them. How it works is that people are taken into custody, and in the process of booking for the infraction is when the documentation problem is solidified and ICE is contacted. The other issue with this is that many people are detained on a Thursday or Friday. The 48 hour hold doesn't count weekends, therefore if a person is taken on Thursday, held for the traffic violation, then add 48 hours, this means they may have disappeared from their family for 4 days before even being taken by ICE. During this 48 hour hold, they are being held without charge, also a violation of the 5th amendment rights.

So, what can people do? Well, the Portland group has created a task force that is working on helping. The group does many things. There are 3 barriers to having more legal power to help these people. 1 is the lack of evidence. In cases where Ice shows up and they get into a house and detain innocent people, it becomes a person v. person argument about consent. By people being aware that they do not have to open the door to ICE, they can help by keeping the door shut and ICE will be made to force the door, causing damage, and becoming evidence that a right to search has been violated. The second barrier is that there is no one to complain. Because people are moved so quickly, or because of fear, people are afraid to speak about the experience. A person who is detained and held can help by remembering details about their experience. They will be conscious of the time of their detention by police or ICE, the way they were treated and even the size of the room. and how many people were there. This experience can help better the evidence and help lawyers and families understand what is happening to their family members. With letting people know their rights, and gathering evidence, and with a little legal help to be allowed contact with detainees, we can protect the rights of others, and set standards of treatment of people. Another barrier is the "spin defenses". When we have a group of people whose rights are being infringed upon regularly, there is an enforce by ICE and the proponents of the actions to defend them. One way this has been done is by defining immigrants in the categories of criminals and terrorists. This is an unfair classification. Most immigrants are workers who are in no way terrorists. They may be undocumented, but they are not violent people out to harm other human beings. By explaining to others, and rejecting the language that associates immigrants with criminals and terrorists, immigrants can re-gain their dignity.

There are also other ways to help for citizens like us. The first thing they recommend is teaching immigrant communities what their rights are. Then add the addition of a safety plan, and risk reduction. They have been working with people in the faith community who work with immigrant families to offer some knowledge. This is called self-enforced protection.

The second action the Portland group is working on is a triage for people who are taken. This means that after a raid they try to find out who was taken and make sure the people have some representation. Because of the movement of prisoners, they try and work very fast. They try to file any sort of legal thing they can so that the process can start and they have to file something so that they are recognized as the legal council of a person and have access to help gather the evidence the person has collected. The Portland group, after a raid of a Del Monte fruit canning plant in 2007 put together a coalition. They have watch dogs who keep an eye and ear on ICE to see when they are ramping up for a raid. This group also will document raids when they happen with cameras so that later there is evidence of what happened. They also have a media team who, when a raid happens, can let the television and other news people know that something is happening and people's rights are likely being violated. There is also a legal team files those actions to protect due process. The political action team helps by contacting other allies. They have worked to have help from the consulates of other countries so they can get a list of people who were taken in a raid so that families can be contacted by the direct service team. The direct service team has set up in various churches for family member to get help. They may need food, a safe place to stay, or some money to help with a bond or and emergency. This group is a coalition of the Oregon food bank, emergency housing services of the state, and other charities and members of faith groups. The trauma of a person being detained can be lowered with their support.

New legal defenses will also become stronger as evidence is gathered and there is more information about how things are happening now. Like right now the immigrant defenders are curious what financial incentives are driving the local police working with ICE. What is driving law enforcement to do this. Is it a personal decision, or policy that is driving the actions. They also want to know what the cost is of all these detentions to counties. Some of the ICE time is being reimbursed by counties, but how much? And isn't all of that money a huge waste when it just destroys families and violates the constitutional rights of individuals? They are also working with police to do trainings and having cities pass bills that they will not let their local police detain people for ICE. By partnering with law enforcement, they can teach officers how some of ICE's detention is a constitutional violation, therefore opening up the county or city for legal actions, and most agencies try to minimize the risk of an expensive legal battle if they can help it.

It will take major U.S. immigration policy change to really protect people's rights. Luckily the new immigrant Services person has said they are not likely going to be using raids. But there is still work to be done let undocumented people know their rights and give them the personal security that treats with respect and dignity. All people should be treated with respect and dignity. Theodor Roosevelt said you can judge a society by how it treats it's most vulnerable people.