Lilian Calderon told her daughter not to worry, that she would be coming right back. Calderon and her husband, Luis, had an interview they couldn’t miss at U.S. Citizenship and Immigration Services in Rhode Island Jan. 17.
All they had to do was prove their marriage was legitimate, the first step on a long path toward a green card. They brought family photographs, their children’s birth certificates and their marriage documents. Luis was a U.S. citizen. Calderon was undocumented. She had been brought to the United States illegally from Guatemala when she was 3.
The interviews were quick and painless. Calderon’s included “football banter,” she said.
But then ICE showed up — and it was quickly clear to Calderon that she would not be returning home to her daughter.
The 30-year-old mother of two wound up handcuffed and then detained by U.S. Immigration and Customs Enforcement for nearly a month, capturing the attention of the ACLU and leading to a class-action lawsuit over what attorneys have described as a “cruel bait and switch” arrest operation. According to emails between federal officials unsealed in federal court documents this week, U.S. Citizenship and Immigration Services had been coordinating with ICE to alert the agency when certain immigrants eligible for deportation showed up at the CIS office for routine interviews.
The ACLU of Massachusetts is accusing the agencies of conspiring to “trap” unsuspecting immigrants on a path toward legal permanent residency by inviting them to these interviews only for ICE to arrest them there. This happened to at least 17 people in 2018 including Calderon, although only 13 qualify as members of the class, according to the lawsuit. The ACLU argues this violates their rights to due process and the Immigration Nationality Act, among other things, for detaining the immigrants before they’ve had a chance to complete the process for seeking legal status.
“The government created this path for them to seek a green card,” Matthew Segal, legal director of the ACLU of Massachusetts, told the Associated Press. “The government can’t create that path and then arrest folks for following that path.”
ICE’s Boston field office spokesman, John Mohan, said in a statement Wednesday morning that any allegations of “inappropriate coordination” between the agencies were “unfounded.”
“This routine coordination within the Department of Homeland Security, not unlike the cooperative efforts we maintain with many other federal partners, is lawful and legitimate in the work we do to uphold our nation’s immigration laws,” Mohan said.
Emails between the agencies released Tuesday show USCIS employees scheduling interviews with certain married couples or other family members around ICE agents’ availability. When immigrants and their spouses or family members showed up, USCIS employees would alert ICE. If ICE agents were running late, ICE would ask USCIS to reschedule the interviews to accommodate them.
One ICE agent appeared to prefer scheduling the arrests to avoid drawing media attention.
“As far as scheduling goes, I would prefer not to do them all at one time as it is not only a strain on our ability to transport and process several arrests at once, but it also has the potential to be a trigger for negative media interest, as we have seen in the past,” Andrew Graham, an ICE officer in the fugitive operations division, wrote in an October 2017 email included in court documents. “If you have the availability to schedule one or two at a time and spread them apart, that works best for us.”
Graham explained this arrest operation in detailed emails to multiple Boston field office employees. Typically, he wrote, CIS would send ICE a list of immigrants seeking to schedule interviews. CIS would flag immigrants who were subject to final removal orders, who had illegally reentered the country or who were “egregious criminal aliens.” ICE would then vet the potential arrest targets and respond to CIS with a list of immigrants it wanted to arrest during their interviews.
“CIS completes the interview while our officers are en route,” Graham explained in the Jan. 30 email.
“In my opinion,” he added, “it makes sense for us to arrest aliens with final removal orders as they represent the end of the line in the removal process. They are typically the easiest to remove, they have the shortest average length of stay, and at the end of the day we are in the removal business and it’s our job to locate and arrest them.”
USCIS spokesman Michael Bars said in a statement that the agency could not comment on pending litigation. But in general, when USCIS encounters a person with outstanding warrants or removal orders, the agency will “notify the appropriate law enforcement agency but has no role in issuing warrants or removal orders.”
“The originating law enforcement agency has the discretion to decide whether they intend to apprehend the individual or not,” Bars said.
In Calderon’s case, she had been subject to a final order of removal since 2002, when her father’s application for asylum was denied. She was 15. Her path to legal permanent residency was enhanced in 2016, however, because a change in USCIS regulations allowed people subject to final removal orders to still apply for a green card without being forced to leave the country.
Previously, immigrants subject to removal orders were typically forced to return to their home countries for 10 years before they were eligible to return legally. Now, immigrants can apply for a waiver if they can show that leaving the United States for a long period of time would create “extreme hardship” for their family. The purpose of the change in USCIS rules was to eliminate or shorten prolonged family separation, which could have serious negative effects on the immigrants’ U.S. citizen children and spouses, the federal government said then.
But the ICE arrest operation at USCIS offices defeats the purpose of this benefit, the ACLU contends.
“In effect, the government’s one hand beckons Petitioners forward, and its other hand grabs them,” attorneys wrote in the class-action complaint, filed in April.
A hearing on the federal government’s motion to dismiss the lawsuit is scheduled for Monday.