A Case of Mistaken Citizenship: How Does an American Prove He's Legal?

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Danny Moloshok / Reuters

Demonstrators chant outside the Los Angeles federal building during an Occupy ICE (Immigration Customs and Enforcement) protest march on Dec. 15, 2011

Antonio Montejano was born and raised in Los Angeles. He lives in an apartment building in a middle-class area sandwiched between Beverly Hills, the L.A. Country Club and UCLA. He is a law-abiding citizen who labors as a construction worker and comes home to a wife and four kids. But last month he was detained for four days under suspicion of being an illegal immigrant. He says local police officers and jail officials didn't listen when he pleaded repeatedly that he was a U.S. citizen. They eventually realized he was right, but not before he was transferred to L.A. County Jail, where he was kept in a cell without a bed or mattress. "I told them, If you give me the opportunity to call, I can tell my wife to get my passport and my birth certificate," says Montejano, 40. "But they never paid attention to what I was telling them."

Montejano's case is one of several recent incidents in Southern California in which incorrect government information has led authorities to detain U.S. citizens for investigation and possible deportation. The American Civil Liberties Union (ACLU) has reported three similar cases in the area and says four others have occurred even more recently. "A lot of calls are coming in," says Jennie Pasquarella, a lawyer for the group.

The incidents are worrisome for immigration lawyers and rights groups, who underscore that it is illegal for immigration agents to hold Americans for investigation for deportation proceedings. The ACLU, which helped Montejano and others get out of jail, says the problem lies in the Department of Homeland Security's Secure Communities program, or S-Comm, which checks FBI fingerprint records against immigration databases to see if people are lawfully present in the country. It says officials at Immigration and Customs Enforcement, or ICE, rely too heavily on the S-Comm program, which is electronic, instead of doing investigative spadework like checking local records and documents.

Pasquarella says another reason this is happening is that there isn't an adequate way for people to protest their detention. Those detained locally find themselves in a sort of catch-22 in which local authorities say they can't help because they're acting under orders from federal officials and the feds say they can't do anything because the individuals aren't yet under their custody, Pasquarella explains. The problem is compounded by officials' failure to correct their records after erroneous detentions, she says. "It's a basic Fourth Amendment problem," she says, referring to the right against unreasonable search and seizure. "They're essentially detaining someone and investigating later."

Montejano's troubles began when he went Christmas shopping with his family. After a couple of hours at Sears, the family left the store and forgot to pay for a $10 bottle of cologne that Montejano had put in their shopping cart for his son. He offered to pay for it when he realized his error, he says, but the store called the police, and he was taken to the station. Even though officers told him he would be there for four hours, he was put in a cell on an immigration hold. Montejano remained detained even after an immigration judge ordered the police to let him go, he says. He later found out that he triggered the government's database because immigration officials had mistakenly deported him to Mexico in 1996 — and didn't fix their records to show that he is indeed a citizen.

Federal immigration officials say they don't have statistics readily available on how many U.S. citizens are detained at any time. Northwestern University professor Jacqueline Stevens estimates that "a low but persistent" number of people placed on immigration holds are citizens. One study she conducted found that 82 of around 8,000 people detained on immigration holds in Arizona from 2006 to 2008 ended up being citizens. Many of them aren't detained under the S-Comm program but are identified by jail officials while serving time for misdemeanors, Stevens says. "One percent may seem low, but if we think of the total number of people being snagged by the ICE dragnet, it's actually quite alarming," she says.

ICE officials say they haven't seen Stevens' study but find it "hard to believe." "The cases that are cited represent highly unusual fact patterns," says an ICE official who spoke on background. "We're constantly worried about this issue. We don't believe it's a widespread issue." In a bid to prevent U.S. citizens from being erroneously detained, ICE recently announced a new 24-hour toll-free hotline that people can call if they are or believe they are U.S. citizens. "This is a very important safeguard," the official said. ICE also established that authorities may not detain a person for longer than 48 hours on an immigration hold. Officials say they are working to clean up records so that previous mistaken detentions like Montejano's are noted in their databases. As for that case, they said they caught the problem "very quickly." "Secure Communities is not designed and should not be used to detain U.S. citizens and we work hand-in-hand with our state and local partners to ensure that it is used appropriately," ICE said in a statement.

It didn't feel very quick to Montejano and his family. Most troubling to him was his perception that he was detained because he looked Mexican. He says his 8-year-old son is now worried he might be detained because he looks Mexican too. "He told me, 'Daddy, can they detain me too because I look like you?' " he says. ICE officials deny that racial profiling is involved in their detention processes, stressing that the S-Comm program is electronic. Still, that's not so comforting for the construction worker. "They didn't believe me because of the color of my skin," he says. "But what can you do when things happen like that? You feel powerless when you're inside the jail. You're nothing in there when nobody believes you."