Things That Matter

Immigration Officials Deported Undocumented Father Of Three Because Of His HIV Status

Last summer, U.S. District Attorney Judge Dana Sabraw ordered the Trump administration to stop separating children from their parents under their “zero-tolerance” policy that had begun a few months prior. However, that order did not prevent immigration officials from separating children from their parents for myriad reasons. The reasoning for continuing to separate kids from their parents (or excuse is more like it) is because officials claimed the parent was unfit to parent, they were denied asylum, or they had prior charges in their native country. Since then, more than 900 families have been affected by Trump’s anti-immigration policy, which has caused more separations between child and parent. One such case is heartbreakingly tragic because it’s a violation on multiple levels. 

Three young girls were separated from their father without an explanation. However, their dad said it’s because immigration officials found out that he is HIV-positive.

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In November 2018,  Andrea, 14, Leiliana, 13, and Sofia, 11, and their dad crossed the U.S. border in El Paso, Texas from Honduras. They, like many undocumented immigrants, were held in cold detention centers that many refer to as iceboxes. In an interview with Public Radio International, the family said that they were held in the icebox for three days, all of them together until their dad was abruptly taken away without an explanation. The dad, Jose, said he is sure that he was separated from his daughters because of his HIV-positive status. 

The father said that he brought with him two bottles of his HIV medication. When officials asked him what it was, he initially lied because “the less people know, the better.”

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Immigration officials tested the medicine and found out it was to treat people with HIV. That gave Jose the inclination to believe they deported him because of that. “It has to be that because there’s no other reason,” he told PRI. His assumption was correct. The American Civil Liberties Union (ACLU) found out the reason why Jose was taken away from his daughters, and it did have to do with his HIV status. 

Immigration officials told the ACLU that Jose’s HIV is a communicable disease and cannot be allowed in the country.

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By definition communicable disease is an” illnesses caused by viruses or bacteria that people spread to one another through contact with contaminated surfaces, bodily fluids, blood products, insect bites, or through the air.” 

Before 2010, undocumented people with HIV could not enter the U.S. but because HIV is now treatable with medication the Department of Health and Human Services (HHS) and Centers for Disease Control and Prevention (CDC) has removed the HIV infection from the definition of communicable disease of public health significance. Therefore immigration officials cannot use the excuse that undocumented people with HIV cannot be allowed in the U.S

The daughters said that their father is fine because he takes his medication, so why would his HIV status prevent him from entering the country? Jose also happened to fail his credible fear interview.

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Each undocumented person that enters the country and is seeking asylum status has to undergo a credible fear interview to discuss why they’re afraid to return to their country. Many undocumented people who flee Central America report they fear for their lives due to violence and persecution. Jose said police in his homeland of Honduras threatened to kill his family, but immigration officials didn’t believe him, so he was denied and deported. 

Even though Jose is back in Honduras, he could still possibly be allowed to re-enter the U.S. and see his family.

Credit: @NYCLU / Twitter

Jose’s kids are part of a class-action lawsuit by the ACLU that includes more than 900 other families that have been deported after a judge had already prohibited the separation of families. 

“It is shocking that the Trump administration continues to take babies from their parents,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project said according to NPR. “The administration must not be allowed to circumvent the court order over infractions like minor traffic violations.”

Just today, the same judge that forced the Trump Administration to end family separation last year ruled that 11 parents who were deported without their children can come back into the U.S. Judge Dana Sabraw said those parents were wrongfully denied asylum. According to CBS News, “The judge found that some of the migrants were probably coerced into authorizing their deportation and were given inaccurate or misleading information by immigration authorities.”

It is unclear if Jose is one of the eleven parents told they could come back and reunite with his three daughters, but we’re hoping he is. 

READ: Customs And Border Protections Chief Mark Morgan Defended The Mississippi Raids Despite Children Left Without Parents

Immigration Advocates Are Sounding The Alarm Over Trump’s Decision To Collect DNA Samples From Asylum Seekers

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Immigration Advocates Are Sounding The Alarm Over Trump’s Decision To Collect DNA Samples From Asylum Seekers

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In 2005, the DNA Fingerprint Act updated a former law‚ the DNA Identification Act of 1994, which denied authorities to obtain DNA from “arrestees who have not been charged in an indictment or information with a crime, and DNA samples that are voluntarily submitted solely for elimination purposes, from being included in the National DNA Index System.” In other words, the DNA Fingerprint Act was revised to protect the privacy rights of immigrantsIn 2010, the DNA Fingerprint Act was again revised because of then-Secretary of Homeland Security Janet Napolitano, who said government agencies didn’t have the resources back then to gather DNA from “migrants in custody who weren’t facing criminal charges or those pending deportation proceedings,” so another clause was put in place for them. Now, in another move in the attack on migrants, the Trump Administration wants to change that. 

The Trump Administration is continuing forward with its push to collect DNA samples from every migrant person that enters the U.S.

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According to the New York Times, “a homeland security official said in a call with reporters on Wednesday that the exemption [put in place in 2010] was outdated, and that it was time to eliminate it.” That statement means the government now has resources to sort through and gather DNA, which it didn’t have in 2010. But that assumption is a stark contradiction since border agents, and immigration officials are severely understaffed

Immigration advocates are calling foul on this tactic by the Trump Administration who continues to criminalize migrants who are seeking asylum. Once their DNA is in the system, they will forever be recorded as felons.

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“That kind of mass collection alters the purpose of DNA collection from one of criminal investigation basically to population surveillance, which is basically contrary to our basic notions of a free, trusting, autonomous society,” Vera Eidelman, a staff lawyer with the American Civil Liberties Union’s (ACLU) Speech, Privacy, and Technology Project, told The New York Times

The government began collecting DNA from migrants starting this summer.

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At some point, this summer border agents began collecting DNA from migrants in order to verify whether or not they were related to the people they were traveling with. Agents were trying to prove whether family units entering the country together were actually related or traveling under false information. The DNA they gathered at the point was just to show family DNA. 

“This was really an investigative tool in attacking the fraudulent family phenomenon,” an ICE official said to CNN about the operation that began this summer. “We’re interested in using this as a tactical law enforcement tool, one of many, to be deployed when looking at a potential fraudulent family scenario.”

This new type of DNA that the administration is aiming to get would provide more extensive information and also would not be shared with other law enforcement agencies.

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The problem here lies with privacy concerns. For example, if an immigration official gathers DNA information from a migrant who entered the country illegally only to be given asylum later — because the court process takes a very long time — that person, who has the option of becoming a U.S. citizen at some point now has a criminal stain on their record for the rest of their life. 

Writer Kelly Hayes wrote an extensive Twitter thread that exposes the extensive damage and intrusion this form of DNA gathering will have for years to come. 

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“A DNA registry for migrants,” Hayes tweeted. “Imagine the ugly possibilities of having a marginalized group of people that large cataloged according to their DNA, and that catalog being in the hands of the state. I know folks are focused on Ukraine, but this is a whole thing. We’re talking about hundreds of thousands of people, including children. With evolving technologies, the potential surveillance applications of a massive DNA registry are ominous AF.”

It’s unclear when this DNA collection will officially begin, even though the New York Times reports that Homeland Security officials have already said they have the right to get DNA from migrants. However, the Supreme Court has already ruled undocumented people have rights just as U.S. citizens do. 

“Though the Supreme Court has found that the constitutional right to privacy applies to everyone within the United States, regardless of their immigration status, a more restrictive interpretation of the Fourth Amendment has been applied within a 100-mile zone of the border, where suspicionless searches are allowed, even of American citizens,” the Times reports. And yet we already know some attorneys are trying to fight that the Fourth Amendment doesn’t apply to undocumented people

READ: A City Claims A Family Can’t Sue Over A Wrongful Death Because Undocumented People Don’t Have Rights Under Constitution

A City Claims A Family Can’t Sue Over A Wrongful Death Because Undocumented People Don’t Have Rights Under Constitution

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A City Claims A Family Can’t Sue Over A Wrongful Death Because Undocumented People Don’t Have Rights Under Constitution

The original wording of the Fourth Amendment in the Constitution stated, that “‘each man’s home is his castle,’ secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.” A revised version states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” In other words, authorities cannot probe into people’s private information, home or belongings, without probable cause. Those laws apply to everyone, right? That’s not what some officials in one city in the United States believe. They’re claiming those laws do not apply to undocumented immigrants. 

In 2017, police were called to check on a domestic abuse suspect in Southaven, Mississippi. They went to the wrong house and shot and killed Ismael Lopez. 

Credit: Local 24 Memphis / YouTube

On a late Sunday evening, in July of 2017, police were called to serve a warrant for the arrest of a suspected domestic abuser named Samuel Pearman. His address was 5878 Surrey Lane, CNN reported, and police ended up going to a mobile home across the street where Ismael Lopez lived with his wife. Police entered Lopez’s home and ended up shooting him in the back of the head. He died on the scene. 

“It is so troubling to learn that not only this man died but that this man died running away from people who were trespassing on his premises after he was in bed lawfully,” Murray Wells, an attorney representing the Lopez’s family, told reporters, according to CNN

The Lopez family filed a $20 million lawsuit for his death after a jury failed to indict the police officers on the scene. The City of Southaven fired back with their own lawsuit saying Lopez has no rights under the constitution because he was an undocumented immigrant.

Credit: Local 24 Memphis / YouTube

This case is like most cases involving the police, the investigation had conflicting reports. Lopez’s wife claims the police came in unannounced, and the lawyer says bullet holes outside of the home support her story. The police say that Lopez pointed a gun at them. However, Lopez’s wife said that wasn’t the case. The police also shot and killed their dog. City attorneys are also questioning the credibility of Lopez’s widow, with claims they were never married, and that she was married to multiple men. Lopez’s attorney showed the documents to prove they were legally married in 2003. 

“It’s a real shame that they have to use these tactics to soil someone’s name when she lost her partner, the love of her life, in a tragic accident,” attorney Aaron Neglia said according to the Washington Post

So, does the constitution protect undocumented immigrants? The answer is a resounding yes even though the matter is still taken up in courts all the time.

Credit: Local 24 Memphis / YouTube

“Yes, without question,” Cristina Rodriguez, a professor at Yale Law School told PBS. “Most of the provisions of the Constitution apply on the basis of personhood and jurisdiction in the United States.”

Undocumented immigrants have the right to legal counsel, under the Sixth Amendment, they also have the right to due process under the Fifth Amendment. So, if the courts are already practicing the law under the constitution when it applies to undocumented immigrants, then the Fourth Amendment and all of them for that matter apply to them as well. 

Southaven attorneys have a different point of view. According to the Washington Post, attorney Katherine S. Kerby wrote, “If he ever had Fourth Amendment or Fourteenth Amendment civil rights, they were lost by his own conduct and misconduct. Ismael Lopez may have been a person on American soil but he was not one of the ‘We, the People of the United States’ entitled to the civil rights invoked in this lawsuit.”

We shall see how this case plays out in court.

Watch the full news report below.

READ: Advocacy Groups Suing ICE For Mass Raid In Tennessee, Claiming They Violated Workers’ Constitutional Rights