Immigration Legal System Does Not Protect Rights

Nahuel Castrucci had no lawyer when he went before an immigration judge the first time, or the second time. He sat speechless and handcuffed as the judge was about to expel him from his own country.

This photo taken on Tuesday, Oct. 7, 2008 shows Rene Saldivar, left, with his brother-in-law Aquiles Rojas in Ceres, Calif. (AP Photo/Rich Pedroncelli)

(AP)

That's when his mother jumped up in the courtroom and shouted, "He's a citizen! He's a U.S. citizen! He shouldn't be here!"

She was right. Her outburst prompted the judge to ask for more investigation from lawyers, eventually leading to Castrucci's release.

The American judicial system deems everyone innocent until proven guilty and guarantees a fair hearing with a lawyer — but not when it comes to immigration. Then there are far fewer rights. And as the system comes under pressure from a flood of new cases, the strain is showing.

One result is that U.S. citizens arrested as illegal immigrants or deportable residents cannot count on the legal system as a safety net. The odds are stacked against them. On the basis of interviews, lawsuits and documents obtained through the Freedom of Information Act, The Associated Press has documented more than 55 such cases since 2000, and immigration lawyers count hundreds more.

Related

Immigration Nation: U.S. Jobs on the Line?

Fmr. Smuggler, Hit Man: 'I Had to Kill'

WATCH: Students in the Shadows

Those who go through the immigration legal system can be arrested without a warrant. They are not read their rights unless it's a criminal case. They do not get a lawyer unless they can pay or find one who will work for free. They can be deported without hearings. And until this January, they didn't get a free phone call.

"They are deporting a very large number of people in very fast ways, often under the radar of any review by courts," said Daniel Kanstroom, director of the International Human Rights Program at the Boston College Law School. "Deportation of citizens is the tip of the iceberg. ... The system is in dramatic, desperate need of reform."

Jim Hayes, director of detention and removal for Immigration and Customs Enforcement, said his agency does not keep track of how many citizenship claims it receives, or how many turn out to be valid. He said it's more common for citizens to claim they are foreign-born to evade a criminal sentence than it is for citizens to be mistaken for immigrants.

"We don't make a habit of accidentally picking people up. It's not our desire to arrest U.S. citizens and take them into custody for immigration violations," Hayes said.

Still, he said, authorities need to be careful about determining citizenship.

"I think it's incumbent upon us to show due diligence and fully investigate and ensure this is, in fact, someone who is a U.S. citizen before we release this person to the public," Hayes said.