The federal government does not track how many U.S. citizens are being detained by immigration agents. But new reporting from ProPublica found that there were more than 170 incidents where citizens were detained by authorities at raids and protests, including people who were held for more than a day without being given the chance to call loved ones or a lawyer. Nicole Foy is the Ancil Payne Fellow for ProPublica. She joins us to share more on her reporting.
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The federal government does not track how many U.S. citizens are being detained by immigration agents, but a reporter at ProPublica recently did. She found that more than 170 U.S. citizens were detained by authorities at raids and protests. “Americans,” she wrote, “have been dragged, tackled, beaten, tased and shot by immigration agents.” Two dozen of these citizens said that “they were held for more than a day without being able to phone lawyers or loved ones.”
Nicole Foy is the Ancil Payne Fellow at ProPublica. She joins us now with more details from her reporting. Nicole, welcome.
Nicole Foy: Thank you, excited to be here.
Miller: You started your recent article with a line from Supreme Court Justice Brett Kavanaugh. It was in the court’s decision allowing immigration agents in LA to take race into consideration when they do sweeps. What did the justice write?
Foy: Justice Kavanaugh, when he was writing about why he was allowing these types of sweeps or roving patrols to continue, very briefly dealt with one of the main allegations and concerns that the folks who filed this lawsuit brought up, which was how many citizens were being detained. And he dealt with it very quickly by just saying, “If the officers learn that the [individual] they stopped is a [U.S.] citizen,” or someone else who has a lawful presence in the United States, “they will promptly let the individual go.”
We thought that was really important to highlight at the start of this story because that is not necessarily the experience that all the Americans who have run into immigration agents are having. It’s an idealized version that we’re not really seeing play out in reality.
Miller: I mentioned that there is no federal database for this information, so how did you actually go about getting this data?
Foy: This is just old fashioned tracking. I pulled every local news story that I could, went through tons and tons of stuff online, went through court data, especially when it came to folks who had been arrested at protests or on charges of assaulting or interfering with officers, and compiled it that way. It’s certainly a severe undercount and not just because I’m inevitably going to miss things that way, but also, I had to stop my account around October 5. And what followed was two to three weeks of pretty intense immigration enforcement in Chicago. So we’ve all seen many really striking incidents play out on video involving the detainment of U.S. citizens in Chicago. And that didn’t even make it in this story.
Miller: What other kinds of arrests or detainments did you consciously not include in your analysis?
Foy: I guess to reiterate what we did include in this is like these two big buckets, which is people who have been detained or held against their will for any period of time because of questions about their citizenship. That often involved some level of allegations of racial profiling. Also though, we included the incidents in which citizens were arrested either at protests or while protesting, or being bystanders in a raid or the detention of someone else in front of them. Those are our two big buckets.
But there’s just all manner of ways that people are running into immigration agents now, as they are flooding communities in ways that they have not in the past. So we did not include these … I think a lot of people have heard stories of people, honestly, much more similar to what Justice Kavanaugh described, they’re asked to show or prove their citizenship in some way. It’s a bit of an uncomfortable conversation, but there’s likely a possibility that if they had made a point of it or if they had tried to leave, they probably would have been allowed to leave. We really tried to restrict this to people who were held against their will. That’s handcuffed, not allowed to leave a work site or an area, or held at gunpoint.
We also didn’t include cases in which, especially at the protests, people were arrested, sometimes still by immigration agents after the fact. Usually because we wanted to exclude cases where there was some sort of judicial process. They had to go and get a warrant from a judge. The FBI got involved in trying to track down a protester who was accused of assaulting officers or endangering people at a protest.
We also didn’t include incidents at the border, at ports of entry or in that very clear border zone. Those are already areas where citizens can generally expect some type of heightened scrutiny about who they are and their identity. And while there’s certainly been some very scary or concerning allegations coming out of citizens going through ports of entry or in border areas, and getting more scrutiny than they believe is fair, we wanted to be very clear that we’re looking at what happens when immigration officials are interacting with citizens inside the United States.
Miller: Well, let’s get to some specific cases. Can you tell us the story of Leonardo Garcia Venegas?
Foy: Yeah, Leo’s case, I think, particularly gets to the core of one of the reasons why so many people were concerned about what Justice Kavanaugh said in this temporary ruling in LA. Leo’s a construction worker in Alabama. He was detained after a pretty violent interaction with immigration agents back in May. He was filming the arrest of his undocumented brother at a time when, he said, immigration agents came onto his work site, ignored the white and Black workers who were there and came straight for the Latino crew members.
As he’s filming, officers immediately also approach him and you can see he struggles with them, he’s yelling on the video that he’s a citizen, phone drops, and from a video taken by his co-workers, you continue to see them take him to the ground. He says that he told officers that he was a citizen. They checked his REAL ID and they told him it was fake. Eventually, he was let go after being handcuffed and them spending some significant amount of time checking his citizenship.
But then it happened again two weeks later. He was working inside of a house and an immigration agent came inside, forced him to leave until they could further check his citizenship. He’s filed a federal lawsuit, because one of the things that he told me is that his experiences seem to make it clear to him that it doesn’t really matter what identification he has, what excuses he gives, what officers are looking for. He is a young man of Mexican descent who works in construction and doesn’t speak very much English. He is the person that people are looking for, especially if they’re taking race and occupation into consideration when they’re doing these sweeps.
Miller: Which the Supreme Court again said they can, in that temporary ruling from LA. What about another story, George Retes?
Foy: Yeah, George Retes is the kind of case of why, honestly, we ended up … I think when I eventually started tracking this, I was mostly just thinking about tracking these cases where someone’s citizenship is questioned and that’s how they end up in the custody of immigration officials. But George’s case and many others were ones where it’s very clear that immigration agents knew that he was a citizen. There weren’t really many questions about his citizenship.
What happened was he was driving to work. He worked as a security guard at a large marijuana farm in California that was raided this summer. It attracted a lot of attention because that raid drew a really significant protest that went on for days. He’s trying to get to work and gets stuck in between the protesters and immigration officers, who he’s actively talking with, trying to figure out where to drive my car. All these officials are leaving the site, but I have to get to work. I’ve got a shift that starts. And what he says is that eventually officers stopped giving him what he said was pretty contradictory information. He had no idea where he was supposed to drive, especially as tear gas was deployed on the crowd.
Then you can see and hear too, in a video that he took himself and that others took at the protest, the moment where officers stopped speaking with him, stop giving him instructions, and instead, break the car window. He says they pepper sprayed him, dragged him out of the car. And he was handcuffed on the ground while, he says, they leaned on his neck and his back. The whole time he’s saying to them, I’m not resisting. I’m just trying to figure out how to get to work.
And he says that everything that followed in which he disappeared for three days, his family had no idea where he was. The way many people learned his story was when his sister showed up on local TV crying, begging for information about where he was because they’d seen footage of him getting detained. And he says that the whole entire time in which he was held without access to a lawyer or a phone, that no one told him what he was charged with. He was even released without charges.
It wasn’t until much later, months later, at which point that he’d been sharing his story all over, in many many different media outlets, that the Department of Homeland Security said, we arrested him because he was obstructing, he was assaulting officers, he was becoming violent. But meanwhile, he was held for three days without ever being told that those were the charges in the first place.
Miller: Nicole, that second story you just mentioned gets to another big piece of this, which is that it is legal for immigration agents to detain American citizens for allegedly interfering with or assaulting officers. And you cataloged about 130 cases in which that happened, in which American citizens were arrested for those reasons. What did you find when you dug into those cases?
Foy: I think the most striking thing we found was not just that people were being arrested for these “assault charges” that maybe are not what you really expect for assault charges … Whether it’s someone who was failing to comply with an order – that’s a big one with obstruction – or someone jostled into an officer, there certainly were some very real and serious charges among them. But a lot of them were, frankly, kind of minor.
But also, many of the charges ended up falling apart under further scrutiny, whether it was after, like George, they were held for a couple of days and then released without charges, or in court when eventually the cases were dismissed or even people who did plead guilty pled guilty to smaller misdemeanor, often like failure to comply with officers. It doesn’t really match what the administration has been claiming are often serious assaults on their officers and obstruction of their duties.
Miller: How does the administration’s overall approach to immigration enforcement right now make the arrest of citizens more likely?
Foy: I think it’s for a couple of reasons. One, again, they’re doing these sweeps, like the ones that we’ve seen in LA where they go through Home Depots or, honestly, as we’re seeing play out in Chicago. [They’re] grabbing everyone at a work site, like Leo, even though they may be citizens. You’re seeing that. But also, as they are doing these sweeps, immigration officials, especially in states where the administration says that they cannot get cooperation from local law enforcement, they’re going into communities that do not expect them and do not want them, quite frankly. And because of that, they’re encountering a level of resistance.
The administration is very clear that they believe that they’re going after the worst of the worst and dangerous criminals. But I think people have a different reaction when they see their neighbor getting arrested in front of them. Many people are members of mixed status families where there’s both citizens and people who are undocumented in the same family. Some people have been arrested because they are trying to stop the detainment of their father, their mother, their boyfriend. So this is a very predictable consequence of immigration agents being deployed into communities across the country in ways that they haven’t for decades.
Miller: At least one administration official, the border patrol chief, did acknowledge that they’re racially profiling. Can you tell us what Gregory Bovino said to a reporter in Chicago?
Foy: Yes, he was being pressed on, how do you decide whether you detain someone? How do you decide, especially when you’re doing these sweeps and you’re not necessarily acting on targeted intelligence? And he’s speaking to a white reporter in Chicago – I really recommend everyone go and look at that and listen to that interview. I think it’s at WBEZ. But he says to this white reporter that, well, we kind of consider how someone looks. I gotta look at that exact quote actually. Sorry, I don’t have it in front of me. But yeah, he said, “How do they look compared to, say, you?” And he says this to a white reporter.
I think that the administration overall has, very forcefully, denied any claims of racial-profiling allegations. But what they’ve argued in court with this LA case, which is still ongoing, and what officials like Border Patrol Chief Gregory Bovino say in real life, makes a lot of people think that there’s some level of racial profiling going on.
Miller: How many avenues for redress are there when citizens are arrested for these various reasons, often not even being given a reason, nor being given a chance to talk to a lawyer?
Foy: There’s very limited avenues for recourse when you believe that your arrest … or for the way you were arrested by a federal officer. There’s not, as many pass for grievances, as there are for maybe local law enforcement or state law enforcement. A number of citizens who have been arrested have filed federal complaints for damages or intents to sue, but it’s a really hard case to win.
And on top of that, anytime when you may be making a complaint that you believe that you were treated improperly or arrested improperly by an immigration agent, the DHS mechanisms that are supposed to investigate these claims – because in any law enforcement agency, there are going to be completely valid claims that the officers mistreated someone, that’s just the way life works – that office has been gutted. There are very few staff available to take on these complaints.
Also, it’s just the truth that the federal officers have more protections than local law enforcement, which is what is really concerning to many advocates, as federal officers are now being deployed into communities in ways that previously you really only saw for local and state law enforcement.
Miller: Nicole, thanks very much.
Foy: Thank you.
Miller: Nicole Foy reports on immigration and labor as ProPublica’s Ancil Payne Fellow.
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