‘Collateral arrests’ by ICE amount to racial profiling, violate immigrants’ rights, lawyers say

They burst into View Park Automotive in South Los Angeles carrying semi-automatic weapons and wearing vests that simply read “police.”

Four men, including Juan Hernandez Cuevas, were handcuffed and taken away.

Hernandez, 46, said he had no idea which law enforcement agency had just arrested him — or why — until he arrived at a downtown L.A. processing facility and saw the word “immigration” written on a wall.

On that late September afternoon, at least six agents with U.S. Immigration and Customs Enforcement arrived with a warrant for the owner of the shop, who had an outstanding deportation order based on multiple DUI convictions.

They didn’t identify themselves or ask questions about the men’s immigration status as they arrested every employee on the property.

“In the moment, I just had the worry and anguish about what would happen with my wife and child,” Hernandez said.

The Trump administration calls immigrants who are not the original targets but are swept up during enforcement actions “collateral arrests.” While some do have criminal records, some have none.

Immigrant rights advocates say the practice is a return to the George W. Bush presidency, a period when large-scale workplace raids were common.

During President Trump’s second month in office, the Department of Homeland Security issued memorandums that essentially stripped all deportation priorities, a fundamental shift away from the Obama administration’s guidelines to prioritize criminals and recent border crossers.

Since then, immigrants have been arrested while accompanying family members to ICE check-ins, waiting with co-workers for rides to work and sleeping in the same home as a law enforcement target.

Lawyers and advocates say the “arrest everyone first, ask questions later” approach — which some see as a response to the “sanctuary city” movement — violates immigrants’ constitutional rights and constitutes racial profiling.

Unlike in criminal court, immigrants facing deportation are not appointed public defenders. Nationwide, 63% of immigrants facing deportation don’t have an attorney, according to a study that analyzed more than a million cases between 2007 and 2012.

Ingrid Eagly, an immigration law professor at UCLA who co-wrote the study, said people subjected to unconstitutional arrests are unlikely to know how to challenge their deportation and many times agree to their expedited removal.

“Advocates have become the eyes and ears on the ground to bring those claims,” she said.

And in cases like Hernandez’s, she said, video evidence is becoming increasingly important “as a counterfactual of the accounts you’re hearing from ICE that they’re entitled to do these collateral arrests.”

In December, the American Civil Liberties Union requested that an immigration appeals court cancel Hernandez’s removal proceedings. His lawyers won’t divulge his immigration status, saying the burden of proof should be on ICE.

“The worry is that worksite raids have already increased in frequency and will continue to do so; that collateral arrests will continue to increase as the administration has abandoned many of President Obama’s formal priorities and exercises of discretion; and that in their haste to carry out this policy of renewed worksite raids, ICE officers will disregard the law,” said Hernandez’s attorney, Eva Bitran.

Acting ICE Director Thomas Homan has for months criticized sanctuary laws, in which local governments restrict cooperation with federal immigration enforcement agents. In October, Homan called California’s law misguided.

“ICE will have no choice but to conduct at-large arrests in local neighborhoods and at worksites, which will inevitably result in additional collateral arrests, instead of focusing on arrests at jails and prisons where transfers are safer for ICE officers and the community,” he said.

The auto shop raid, recorded on security cameras, took place during four days of similar immigration enforcement actions across the United States. Agents arrested 498 people in cities that limit police cooperation with ICE.

At Hernandez’s workplace, two agents with guns drawn ordered everyone — the owner, three mechanics, a customer and a vendor who was in his truck — to freeze and put their hands up.

They arrested all the employees. One agent found Hernandez’s wallet in his pocket and removed his California driver’s license.

The shop owner was deported that day, Bitran said.

On the car ride to the processing facility, an agent asked Hernandez the names of his parents and whether he had children. After signing papers and giving his fingerprints, Hernandez was transferred to the Adelanto Detention Facility, where he spent more than a month before being released on bond.

According to Bitran, Hernandez — who has years-old misdemeanor convictions for driving under the influence and solicitation of prostitution — is the sole provider for his wife and 4-year-old daughter, both U.S. citizens.

His lawyers are asking the immigration court to cancel his deportation proceedings. They say the ICE agents violated his 4th Amendment right against unreasonable search and seizure by arresting him without a legitimate reason to believe that he was in the U.S. illegally.

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A video provided by the American Civil Liberties Union shows Juan Hernandez Cuevas, 46, being arrested in a raid by Immigration and Customs Enforcement. He has accused ICE agents of arresting him without identifying themselves or asking questions ab

“ICE agents knew nothing about Mr. Hernandez when they pointed their guns at him, ordered him out of his workplace, patted him down, took his wallet, and placed him under arrest — other than that he appeared to work at the garage and looked Latino,” the complaint says.

In Virginia, immigrant rights advocates sued five federal agents in August, seeking unspecified damages over the practice of collateral arrests. The suit, filed in the U.S. District Court in Alexandria, alleges that agents violated the constitutional rights of two men by detaining them without reasonable suspicion.

The agents came across Mynor Tun-Cos and Jose Pajarito Saput in the parking lot of the Fairmont Gardens apartments just as they were leaving for work, according to the lawsuit filed by the Legal Aid Justice Center. The agents asked about two young men who hadn’t lived in the complex for five years.

Unable to find those men, the agents arrested Tun-Cos and Pajarito after determining they were in the country illegally. Tun-Cos and Pajarito have since been released from detention but remain in deportation proceedings. Neither has any criminal history.

Lawyers added seven other Latino men to the complaint in November based on a similar incident that happened in a nearby city a few days earlier.

In a statement, an ICE spokeswoman said that agents frequently encounter other immigrants who are in the country illegally during targeted enforcement operations and that anyone found in violation of immigration law may be subject to arrest. Those slated for deportation get their due process in court, the statement said.

“ICE does NOT target individuals based on religion, ethnicity, gender or race,” the statement said. “Any suggestion to the contrary is patently false.”

But Simon Sandoval-Moshenberg, director of the Justice Center’s Immigrant Advocacy Program, said ICE agents often seem indifferent about finding the person they set out to arrest.

“Under the Obama administration — of course there were exceptions — but for the most part if you kept your nose clean you were fine,” he said. “Now you can get put into deportation proceedings not based on anything you’ve done, but based on what the dude in your apartment complex did years ago.”

Sandoval-Moshenberg said the best strategy for advocates now is to continue asking judges to throw out deportation orders for immigrants who are detained during collateral arrests.

“One would hope that if judge after judge keeps telling them, ‘You’re doing it wrong,’ then eventually they’ll start doing it right,” he said.

From Trump’s inauguration through the end of the fiscal year, ICE arrested 40% more people from within the U.S. compared with the same time period in 2016. Among those, more than twice as many had no criminal convictions as in 2016.

The randomization of immigration enforcement is an essential feature of the Trump administration’s strategy, Sandoval-Moshenberg said. It’s a choice between prioritizing criminals and prioritizing fear.

“It seems they’ve chosen the latter,” he said.

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Twitter: @andreamcastillo