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SHOULD POLICE have the same authority to question individuals on immigration status as U.S. Immigration and Customs Enforcement (ICE) agents do, and do the procedures for deportation include adequate safeguards for the mentally handicapped? Those questions, raised in connection with the wrongful three-month deportation of Pedro

Guzman to Mexico, served as an impetus for a congressional hearing on ICE’s deportation and detention tactics. Guzman is said to have a cognitive disability and, as a result, cannot read above a second-grade level. The ACLU of Southern California has brought a lawsuit on Guzman’s behalf against a custodial assistant at the Los Angeles County Sheriff’s Department (LASD), which originally held Guzman in its custody for a misdemeanor trespassing charge before referring him to ICE, which also was named (along with others) as a defendant in the lawsuit.

The lawsuit charges that ICE did not have reasonable policies. Consequently, its agents failed to recognize that Guzman was not mentally competent to handle the proceedings without assistance. The complaint states that Guzman’s medical records stipulate that he cannot knowingly execute a waiver of his legal rights—although that’s precisely what ICE allowed Guzman to do. In addition, the lawsuit asserts that the authorities could easily have ascertained his citizenship from his birth certificate, which was later obtained by the ICE Los Angeles field office.

The ACLU complaint states that Guzman initially told LASD that he was a U.S. citizen, and Los Angeles County booking and property records back this up, listing Guzman’s birthplace as California. However, LASD’s position is that Guzman told them he was not a citizen.

In any case, after being transferred from LASD to ICE, Guzman signed a statement allowing for his removal from the country. The statement waived the right to a hearing before an immigration judge, thus accepting what is called “voluntary departure,” an expedited form of deportation.

The ACLU lawsuit charges that Guzman was not provided assistance to understand what he signed. Because Guzman exercised voluntary departure, no effort was made by ICE to prove Guzman was a citizen. Had ICE performed due diligence before deporting Guzman, his birth certificate would have proved that he was indeed a U.S. citizen.

LASD asserts, however, that its policy with regard to assessing mental health is adequate. Steve Whitmore, LASD spokesman, says that everyone, Guzman included, undergoes a mental and physical evaluation by the Department of Health when LASD takes them into custody.

Additionally, he says, “People are asked questions, and they are re-asked those questions…. The checks and balances process is extensive.”

Whitmore says Guzman was coherent and in charge of his faculties. Further, Guzman stated repeatedly that he was not a U.S. citizen, and even provided such information as which city in Mexico he was born in.

One reason Guzman may have said that he was not a citizen is that people with mental disabilities sometimes provide whatever answer they think the questioner wants to hear, said Rachel E. Rosenbloom, fellow at the Center for Human Rights and International Justice at Boston College, who also testified before the congressional committee examining the issue.

Whatever Guzman said about his citizenship status, ICE Deputy Director for Detention & Removal Gary Mead acknowledged in his congressional testimony that the burden of proof is on ICE to determine who is or is not a citizen.

The ACLU of Southern California’s spokeswoman Celeste Durant says that local law enforcement may be inadequately trained to deal with these issues. The Guzman lawsuit also makes this assertion.

LASD is part of a 287(g) Memorandum of Understanding (MOU) with ICE, which means that some of its members can perform certain immigration enforcement duties. Mike Williams, coordinator of 287(g) investigations in the Collier County Sheriff’s Office in Florida says that from his experience, members of departments in MOUs “receive the same immigration training” as anyone who goes through the ICE academy.

Williams’ training consisted of about four and a half weeks of immigration law, interview techniques, and similar information. The only aspect of the training that local law enforcement officers do not get relates to police techniques, which officers are presumably already versed in, he says.

To prevent future mistakes like the one made with Guzman, Rosenbloom suggests that anyone who signs on for voluntary removal should be sent to court “for at least a brief questioning by a neutral adjudicator to see if that person is competent, if they really understand what they signed, do they really mean it, do they understand what’s going to happen to them?”

Rosenboom says that she has seen at least seven cases of wrongful deportation in addition to the Guzman case (which was the only one acknowledged by ICE to Security Management). But all of those cases might have been avoided with such a safeguard, she says.

LASD sees it a little differently. “The system is sound,” says Whitmore. However, he adds, “That doesn’t mean that we can’t get better. We’re always looking for ways to improve what we do.”

In fact, LASD has instituted some recent training augmentation, although Whitmore could not describe exactly what the additions were, since that information is “proprietary in terms of what ICE does.”

Mead told the congressional committee that ICE is reviewing its procedures to see whether it can take steps to further safeguard against this type of error.