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#Not1More Movement | ACLU victory ends deceptive ‘voluntary return’

Coercive practices lead to non-consensual ‘voluntary returns’


Devon G. Peña | Seattle, WA | August 28, 2014

Can small victories lead to larger consequences? The American Civil Liberties Union (ACLU), along with a group immigrant plaintiffs and other legal counsel, announced a victory today in a lawsuit against ICE (Immigration and Customs Enforcement). The lawsuit, Lopez-Venegas v. Johnson, was filed in June 2013 on behalf of three Southern California immigrants’ rights organizations as well as eleven individuals deported by ICE under deceptive and unconstitutional tactics designed to coerce immigrants into agreeing to “voluntary returns.”

This is a significant victory that again reaffirms the basic legal principle that 14th Amendment protections apply to non-citizens and out-of-status individuals. The courts once again ruled that the basic rights of due process and equal protection apply to all persons within the territorial jurisdiction of the United States and not just citizens and legal immigrants.

At the heart of the lawsuit were allegations that ICE was using a variety of deceptive practices to get immigrants to unknowingly agree to ‘voluntary’ deportation without further due process. The consequences of agreeing to a voluntary return are also not shared with immigrants who will unknowingly later have to face the fact that this can trigger a ten-year bar against returning to the United States. Immigration officers used pressure and threats to force people to sign “voluntary return” orders.

The original ACLU complaint had noted that each “individual plaintiff has significant family ties in the United States and lacks any serious criminal history” and “each would have had a strong claim to stay here lawfully had immigration officers not misinformed or pressured them to accept ‘voluntary return’.” Plaintiffs may now return to the United States to exercise their due process rights to receive a fair immigration hearing.

The settlement appears to be limited to the plaintiffs in Southern California and the broader implications remain unclear. In this regard, the ACLU reports that the settlement “includes provisions that, if approved by the court, would allow some of the hundreds of thousands of Mexican nationals who have been expelled from the United States pursuant to unlawful ‘voluntary returns’ to reunite with their families here.” The activists and lawyers promise to monitor these agencies to make certain they “never again trick or coerce vulnerable individuals into signing away their fundamental rights.”

This ruling is politically significant. The courts have long upheld 14th amendment protections for all persons present within the borders of the U.S., so this ruling is in keeping with a very long judicial stance. However, I wonder and worry about the prospects for the Republican noise about voiding 14th Amendment protections for undocumented immigrants becoming a more serious legislative threat if an ever more extremist set of candidates manage to make the Senate ‘Red’ during the Fall 2014 elections. Obama may have to be compelled to veto attacks on our Constitution.

However, the original ACLU complaint is not just based on 14th Amendment arguments. The legal team also brilliantly invoked the Suspension Clause of Article I of the U.S. Constitution that requires a forum for judicial review where a non-citizen challenges the lawfulness of removal from the United States; in this regard, they invoked INS v. St. Cyr, 533 U.S. 289, 304 (2001). They also invoked the due process clause and Article III of the U.S. Constitution “which require some federal forum for judicial review of federal statutory and constitutional claims, at least where liberty is at stake.”

It would take an obscene amount of political chutzpah for a Republican majority in Congress to legislate such radical changes to several Articles and Amendments in the U.S. Constitution. This will surely not happen and so what I believe the #Not1More movement is focusing on is transforming the battle from the terrain of matters of procedural justice (quadue process) into the more challenging battle over substantive justice – which means extending formal recognition and integration of the 11 million undocumented and out-of-status individuals as persons who are no longer rendered as rightless and stateless people.

The language games associated with this policy problem are also quite revealing about the governmental rationality at work in these Unconstitutional immigration politics. The ACLU complaint explains, in footnote 4 (page 10,) how the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”) “replaced all references to ‘deportation’ with ‘removal.’” Deportation and exclusion proceedings were now lumped into the broader category of ‘removal’ proceedings. 

These language games obscure the violence being perpetrated against people. The feds love subtext and appear to have gone from referencing “deportation” to using the word “removal” and now apparently the Disneyesque, “return”. This is devilishly misleading and even cartoonish language that seeks to justify and obscure the violence inflicted on families by making it appear as if the forcibly deported are voluntarily returning home, when indeed their immediate family and community are in the U.S. and not Mexico.

For the full report go to: