Immigration judge finds racial profiling in detention case

ICE agents ignore subpoena asking them to appear in court.

In an extraordinary ruling this week, an Atlanta judge found that federal agents committed “egregious” racial profiling and that government lawyers committed “willful misconduct” by refusing to bring the agents to court.

The decision, issued Thursday, was a victory for Osvaldo Menese Chavez, who was taken into custody March 6. Chavez was arrested by two Immigration and Customs Enforcement agents as he walked away from his apartment complex on Peachtree Industrial Boulevard to catch a ride to work. The Department of Homeland Security later moved to deport Chavez on grounds he is an unauthorized immigrant.

“This is an important decision,” said Michael Saul, one of Chavez’s attorneys. “The government’s conduct was reprehensible. The judge found there was racial profiling, and they thumbed their noses at the judge, who’d issued subpoenas for the officers to appear.”

ICE spokesman Bryan Cox said the agents, whose names have not been disclosed, did not appear in court on the advice of counsel. The agency is asking the judge to reopen the case, he said.

“We reject entirely the premise there was racial profiling,” Cox said. “We don’t do any random or indiscriminate enforcement.”

Acting Department of Homeland Security press secretary Gillian Christensen said ICE officers “execute their mission in a targeted and professional manner.”

Saul and Atlanta lawyer Noemi Puntier had challenged Chavez’s detention on grounds there was no justification for his arrest.

Cox, the ICE spokesman, said the agents were at Chavez’s location because they were trying to arrest another individual.

In a report, the agents said they

asked Chavez to come talk to them because he looked like the person they were looking for, Puntier said. When Chavez tried to run away, they arrested him.

This account apparently troubled U.S. Immigration Judge Dan Pelletier, who said during an initial court hearing that he’d noticed agents had been using similar explanations to justify other detentions, Saul said.

In early April, Pelletier asked DHS to bring the officers to court so they could testify. A week later, however, DHS lawyers told the judge that wasn’t going to happen.

On April 17, Pelletier, after determining the officers’ testimony was essential, issued subpoenas for their appearance. But DHS lawyers again refused to bring the officers to court. This thwarted Chavez’s ability to make his case, Pelletier said in his order issued Thursday. The judge then found the arresting officers’ conduct to be racial profiling and an “egregious violation” of the Fourth Amendment’s guarantee against unlawful searches and seizures.

The ruling is remarkable because it was issued by Pelletier, who routinely sides with the government in immigration cases, said Atlanta lawyer Carolina Antonini, who teaches immigration law at Georgia State University law school.

Pelletier, a former U.S. Army judge advocate and assistant chief counsel for DHS, was appointed to the immigration court bench in 2006. The Atlanta court is widely considered to be one of the most conservative in nation.

“The fact that this judge was so offended by the government’s conduct sends a strong message,” Antonini said. “It says no one is above the Constitution.” The agents’ refusal to comply with an immigration judge’s subpoena did not subject them to contempt penalties, which they’d be facing had they ignored a subpoena issued by a U.S. District Court judge, Antonini noted.

Chavez gave his account of what happened in a sworn statement. On the morning of March 6, he said, a friend who drives him to his painting job called and said he was parked outside. As he walked to his friend’s car, Chavez said, he noticed an unmarked car with tinted windows and a man sitting inside. The man then made a signal with his finger asking Chavez to walk over to him, Chavez said.

“I did not know who he was or where he was from and therefore continued on my way,” Chavez wrote. “I was really scared because I did not know who that person was or why he was asking me to come over to his vehicle.”

As he continued to walk out of the complex, the man in the car blocked Chavez’s path and a second unmarked car with tinted windows pulled up, Chavez said. The two men told Chavez they were police officers, pointing to tags of their shirts, Chavez said. He said he was then handcuffed and taken into custody. As of Friday, Chavez was still being held at the Irwin County Detention Center in Ocilla, about 180 miles south of Atlanta.