That principle has been breached in both the Bush and the Obama administrations by the Department of Homeland Security, which now houses ICE, Customs and Border Protection, and U.S. Citizenship and Immigration Services. As of late 2010, it had entered into agreements to train and authorize seventy-one local law enforcement agencies in about half the states to detain and report undocumented immigrants, mainly by using the improving databases to check the immigration status of anyone who seems foreign when stopped for traffic violations or arrested for more serious crimes. By August 2011, 1,502 jurisdictions in 43 states had signed up to send fingerprints of everyone booked to Homeland Security under a program named Secure Communities, which officials hoped to extend to all police departments in the country by 2013.54
It’s a prescription for racial and ethnic profiling eagerly embraced by some local departments, while others firmly reject playing immigration agent. They don’t want to jeopardize immigrants’ cooperation with local law enforcement. “I’m concerned that people who are victims of a crime, whether citizens or not, are not calling us because they’re afraid we’re going to check status only,” said Dave Rohrer, police chief in Virginia’s Fairfax County.55
Enlisting locals to enforce immigration law has created problems both practical and constitutional. During a two-year sample period, 42 percent of people whom the database failed to list as legal were, in fact, properly documented; many of them were wrongly detained.56 Fourth and Fifth Amendment rights have been invaded as well, often against American citizens who look “foreign.”
The fear of wide-scale profiling and rights violations drove national protests after Arizona passed a law in 2010 directing police officers and government agencies, during “any lawful contact,” to check anyone’s immigration status “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.” The term “any lawful contact” was taken to mean that cops could approach and question people solely for immigration purposes, without requiring a traffic violation or other suspected offense as a prerequisite for a stop. “Lawful contact” might apply to the most benign encounters: an officer who is asked for directions, sees a law-abiding driver, or merely notices a pedestrian on the street. Furthermore, “reasonable suspicion,” the least demanding form of justification for a police inquiry, could be aroused by little more than skin color, accent, and other attributes of ethnicity that would surely catch non-Anglo U.S. citizens in demands that they show their “documents.”57 An array of civil liberties and human rights organizations, joined by Obama’s Justice Department, challenged the law in federal court and won a temporary injunction in a case ultimately destined for the Supreme Court. A flurry of similar laws, passed later by other states, faced similar challenges.
ICE officers may legally ask for immigration papers. But to be constitutional under existing case law, immigration inquiries by local police must follow legitimate Terry stops for ordinary, non-immigration offenses, governed by a 1968 Supreme Court case requiring either reasonable suspicion that a person is armed or probable cause to believe he is involved in a crime.58 Without that prerequisite, a stop is unconstitutional, and if information about the person’s immigration status is obtained as a result, it has been obtained illegally.
The practice on the street is considerably less pure, judging by cases that lawyers see. Police sometimes manufacture minor crimes to justify arrests, or they simply ask people for their documents. Citing security concerns in the months after 9/11, for example, local officers approached simple landscapers working near the Pentagon, who were suspected of nothing at all, and demanded documentation of their legal status. In Woodbridge, Virginia, police adopted a habit of arresting day laborers for loitering in front of a 7-Eleven where contractors picked them up for jobs, then asking about immigration status. Elsewhere in the state, local officers were simply “going up to immigrants and asking for their immigration papers,” according to the attorney Mary Holper.
If they concede to being undocumented, the foreigners are turned over to ICE, which places them in removal proceedings. Even if the stops are illegal, the admissions given to police or ICE cannot readily be suppressed in immigration court unless egregious coercion can be shown. This is because the detainees face only civil consequences (deportation preceded by jail), which are not governed by the same constitutional protections as criminal cases—even though permanent removal may bring heavier catastrophe than prison terms. By violating the Constitution, then passing the detainees into the immigration system, police who are enlisted in the hunt for illegal aliens evade two crucial rights: to be free from unreasonable search and from a form of self-incrimination.
It doesn’t take a great leap of imagination to picture the kind of country in which traffic cops or foot patrolmen are free to approach any citizen or foreigner who has a swarthy complexion, a Spanish accent, or a Muslim head scarf and demand proof of legal presence, ask intimidating questions, and effectively threaten to take apart a person’s world. That is what is happening here and there, in the patchwork of local immigration enforcement, under local authorities who do not observe the strictest constitutional rules.
The alarm was sounded six months into the Obama administration by two dozen civil rights organizations, which expressed their stunned condemnation of Homeland Security for expanding the program, known as 287(g) after the section of immigration law that authorizes it. “In Davidson County, Tennessee, the Sheriff’s Office has used its 287(g) power to apprehend undocumented immigrants driving to work, standing at day labor sites, or while fishing off piers,” said the groups’ statement. “One pregnant woman—charged with driving without a license—was forced to give birth while shackled to her bed during labor. Preliminary data indicate that in some jurisdictions the majority of individuals arrested under 287(g) are accused of public nuisance or traffic offenses: driving without a seatbelt, driving without a license, broken taillights, and similar offenses.”59 Virginia police reported some immigrants so terrified of encountering local cops that they were hiding in their homes and hoarding food.60
And then, in a corrosive phenomenon too shameful for Muslim leaders to talk much about, those wrongly arrested have sometimes been shunned in immigrant communities riven by fear. The government’s presumption of guilt by association has invaded the apprehensions of Muslims who try to appear squeaky-clean. They do so by avoiding those who come under suspicion, even unjustly. With excruciating diligence, they have ended friendships and even cut family ties.
So it was for a political refugee from Iraq whose refuge felt suddenly unsafe. His life plunged into loneliness.
THE PURSUIT OF HAPPINESS
He stood out, a stocky man with graying hair and an olive complexion, spotted by border patrol agents in the train station of Havre, Montana, about thirty miles from Canada. Under immigration regulations implementing the federal law giving them warrantless search powers, the agents were “within a reasonable distance” of the border as long as they were within one hundred miles, and they routinely met the two Amtrak trains that stopped daily, heading east and west. They walked through the railroad cars and the station looking for anyone “believed to be an alien,” as the law allows. The question, about to be tested, was whether that belief could legitimately be based on apparent ethnicity.
Abdulameer Habeeb had not been out of Iraq long enough—perhaps he never would be—to shed the reflex of averting his eyes when a uniformed officer looked directly at him. So that’s what he did. He was traveling by train from Seattle to Washington, D.C., where he was to begin a new job, because he wanted to get a look at his adopted country, he explained. “I want to see everything—the land, the forests, the farms, everything.” So when the train made its thirty-minute stop, he got off to see a bit of Havre. He had time to admire a statue of the founder of the town and, as an artist and sculptor himself, thought it “very nice.” He had time to try to buy a Pepsi from a machine, but it didn’t accept cash, and his debit card was de
pleted. He walked back toward the train and encountered the agent’s steady gaze.
Habeeb came from a prominent Shiite family in southern Iraq, where his father, a respected sheikh, commanded the allegiance of a large clan with potential ties to Iran. The Shiite south was rebellious and problematic in the brutal politics of Saddam Hussein, who tried to threaten and bribe leaders into offering endorsement and support. Habeeb’s father was a target, and his son became the unwilling conduit of the dictator’s demand.
As Habeeb told it, his artistic skills as a calligrapher drew the attention of ranking army officers after basic training. Instead of deployment to a unit, he was asked—actually, taken—by an official in the presidential palace to teach art to children of Saddam’s relatives and aides. He was also assigned to create ornate calligraphy not just of the customary verses from the Koran but of sayings by Saddam.
Soon Habeeb realized that his position “was like a cover for something else. They really wanted to force my dad” to honor Saddam, and Saddam’s son Qusay delivered the request to Habeeb himself. “They asked me many times to persuade my dad to say yes.” His father’s answer was unequivocal. “He said, ‘Now I’m an old man. All I need is to leave me alone.’ When I told the government that, they did not accept that.”
Habeeb was arrested several months later, ostensibly for failing to finish some artwork on time, and placed in a special prison for high-level government officials who had run afoul of the regime. “They hit me, they shocked me by electric, they broke my fingers, they broke my feet, they did things I can’t say.” He was released, rearrested, released, rearrested. “They took me many, many times to the jail” for months at a time.
In between, Habeeb tried to practice his art, opening a shop, doing pieces for houses and gardens. But his repertoire was politically limited. “Many pieces they don’t like,” he said. “One of the pieces I did, it was about life in Iraq, so they said no. This one you can’t show this in any gallery or you can’t give it because this one talk about something that is not happening. We are a happy life and golden times. It was a sculpture—one woman with her little baby, and she is poor, her baby is dead between her hands. So they said no.”
Meanwhile, his father’s farms, livestock, and houses were confiscated, and their return was promised if only he would stand up for Saddam. He would not. One day in 1998, his father parked his car, opened the door, stepped into the street, and was run down and killed by a vehicle that had been following him—no accident, the family concluded.
An older brother had been murdered earlier, a younger brother had fled to Seattle, and his mother, trying to save him, told Habeeb to leave while he could. Well-placed bribes got him a passport and clearance at the border into Syria, where his story was verified by the United Nations High Commissioner for Refugees and by American officials who granted him refugee status. He flew from Damascus to Amsterdam to Los Angeles and now wanted to see his new country.
So, on April 1, 2003, not long after the United States invaded Iraq to overthrow the regime Habeeb had fled, he aroused suspicion by glancing away from the uniformed man on the platform in Havre, Montana.
Sir? What is your name? Where are you from? Are you legal here? Do you have any documents to prove you’re legal? This was Habeeb’s muddy recollection of the questions, coming to him in a language he barely understood at the time. He showed a Washington state ID (issued in lieu of a driver’s license), a Social Security card, and an I-94 immigration document testifying to his refugee status.
Habeeb could have kept walking, refused to answer questions, and boarded the train. But he didn’t know that, and certainly didn’t feel free to do so, especially after the agent was joined by two others, one in uniform, the other in plainclothes. “They scared me,” he said. And if he had ignored them? “They shoot me.”
If you don’t feel free to leave, you can make a case that you have been “stopped” in legal parlance, and a stop requires some level of suspicion beyond your ethnicity or the direction of your glance.
Immigration agents can legally chat with people without “stopping” them, courts have held, but a stop, the Supreme Court has ruled, cannot rely solely on race or ethnicity to be “reasonable” under the Fourth Amendment; those are factors that can be considered only if other elements lead to the belief that someone is in the country without authorization. The Court unanimously threw out a stop by the border patrol near Mexico when the only ground for suspicion was the agents’ impression that the vehicle’s occupants looked Mexican.61 Therefore, the encounter at the Montana station was not only unpleasant but probably illegal.
“He asked if I had gone to registration,” Habeeb recalled. “I did not understand. ‘Can you explain that to me?’ He said you have to go to registration every three months to be fingerprinted and be photographed. I said I didn’t know about that. He said we publicized it on TV, in newspapers. I said even on TV I didn’t understand.” He remembered the plainclothes agent then saying, “Take him.”
He was handcuffed, agents retrieved his luggage from the train, and he was put into an office with microphones, cameras, and an intimidating picture of a bearded, blindfolded man tied to a chair. “Next to me, a cage too small to sit up or stand or lie. Nobody in there.” Habeeb took it as a threat. “They asked me if I have guns or bombing. I said no. I’m an artist. I have colors and brushes and art books. They asked me to open my bags. I opened.”
Then they asked whether he knew anyone who spoke against the U.S. government, whether he had Saudi or Pakistani friends. “This is McCarthyism,” said his lawyer, Jesse Wing. “They asked him who he was associated with. If you are associated with somebody who gets arrested for an immigration violation, you are in somebody’s little black book.”
Habeeb found the lockup in the local Montana jail “very scary,” full of white men with long hair and tattoos who called him “Saddam Habeeb.” In a complicated form he couldn’t read, he was given written notice of his right to a lawyer but was not offered the proverbial phone call to contact one; this was not a criminal matter, although he was jailed like a criminal, with criminals.
After several days, Habeeb was flown back to Seattle and placed in an immigration detention center whose inmates turned out to know the law better than either the border agents, the government’s attorney on his case, or even an immigration judge. From his cell mates he learned that refugees were not covered by “special registration,” so the entire premise for his arrest was wrong: he wasn’t required to register.
He told this to his pro bono lawyer when he got to court, and to the judge, who asked the government attorney whether it was true. The judge wasn’t sure, and neither was the government attorney. They adjourned to do a little research, which didn’t prove difficult. The government’s lawyer finally “dismissed the case after one of my partners called and said that refugees were not required to register,” said Wing. “The attorney said, ‘Send me what you have.’ My partner said, ‘Why don’t you look at your Web site?’ My partner faxed him a printout of the Web site.” Under “Exceptions,” it plainly listed among those excluded from the registration requirements “refugees, individuals who have been granted asylum, and individuals who have applied for asylum” before publication of the new rules.
After eight days in jail, Habeeb was released, but his exoneration did not restore his relations with fellow Muslims. “I used to have many Iraqi friends here in Seattle,” he said, “and when they heard about my case and the border patrol stopped me and the FBI interrogated me and arrest me, nobody say ‘salam aleikum’ again.”
The job he’d been promised in an Islamic cultural center in D.C., doing art for a newspaper and Web sites, evaporated. A man who had offered him a place to live there reneged, begging him not to mention his name to anyone. When Habeeb decided to appeal for his job in person in D.C., he took the same train again, staying aboard this time as the same agents came through the car and didn’t mess with him. That small victory was more than he got w
hen he approached his erstwhile employers in the nation’s capital. “They said to me, ‘We think you have a problem with the government.’ ”
Worse, the imprisonment, as relatively brief as it was, reignited the trauma from his years in Iraq. He now kept a phone by his bed, for “every night when I sleep I feel someone come and kill me.” When he told me this in his lawyer’s office, Jesse Wing prompted him to talk about the Statue of Liberty.
Habeeb lapsed into silence, breathing hard, looking down at the table to hide the tears welling up in his eyes. He stayed that way for a very long time, until I came to his rescue by saying that I’d call him to follow up. No, he replied, he wanted to speak now. So he gathered his words.
“When you see the Statue of Liberty and when you believe this is a free country and you come to this country and do whatever you like and especially if you’re an artist or a writer, and when you come here and find this is a big joke, you be in deep frustration.” That was the best he could do in his limited English, but “frustration” hardly seemed adequate.
He returned to work loading furniture on trucks in a Seattle warehouse. He did not practice his art. He lived alone. With the help of Wing and the American Civil Liberties Union, he also sued the border patrol agents for violating his Fourth Amendment right to be free from unreasonable seizure, and his Fifth Amendment right to due process.62 His lawsuit was summarily dismissed by federal judge Sam E. Haddon, who used to be an immigration patrol inspector and found that no “seizure” had occurred of Habeeb during the platform questioning, in that he was free to leave. But Habeeb’s case was regarded as so strong that the Justice Department saw only risk in defending it in the courts.
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 26