Immigration-speak is a language I have yet to learn. It sounds strange. It doesn’t quite fit the world in which my clients and I live. When I was told that a client of mine had no "status" in the United States, I wondered what that meant. He’s been here since he was six years old. He was educated here. He pays taxes here. His home is here. His family is here. But he still faces deportation because he doesn’t have immigration status. He is an illegal alien. But for an accident of birth, he is in all respects identical to me.
Nothing breeds disrespect for the law quite so powerfully as incoherence. A law imposing distinctions without real difference in an invidious manner invites scorn. Throwing a man out of the country because his parents brought him here as a child makes no sense.
But it is even worse to throw a man out of the country to avoid hearing what he has to say in a court of law. That breeds more than scorn; it fosters contempt. When a court show contempt for justice dangerous waters roil.
Washington Colala is one of 32 illegal immigrants seized by Immigration and Customs Enforcement agents in in New Haven 2007. The aliens were rounded up by ICE agents who burst into their homes without warrants. The agents refused to identify themselves. They were super cops donned in raid gear and armed with firearms. Like locusts they swarmed, devouring all the hope they could find. The agents are accused of rounding the immigrants up in retaliation for New Haven's decision to issue identity cards to all folks who requested them, whether here legally or not, so that they could cash checks, fill out apartment rental applications, and the like.
Colala and 10 other victims of the search brought suit in the United States District Court for the District of Connecticut. They sued the federal agents for violating their right to be free from illegal searches and seizures under the Fourth Amendment.
How do non-citizens claim rights under the Constitution? The answer is simple. The Fourth Amendment serves as a substantive limit on the power of government. It gives rights to persons, whether citizen or not. The amendment recognizes that a government without limit quickly becomes a beast that will devour the rights of all.
The government did not have the decency to defer deportation proceedings until Colala’s claims could be heard in open court. It sought to deport him immediately. So Colala’s lawyers went to federal court to block the deportation. This week, United States District Judge Stefan Underhill told Colala there was nothing he could do. The law required Colala’s deportation.
Colala’s lawyers urged the Court to use its inherent authority to assure that justice was done in a prompt, efficient and speedy manner. Judge Underhill was unpersuaded. No case told him he could order the government to let Colala remain in the country. So long, Mr. Colala; so long, justice.
Judge Underhill’s decision is deeply troubling.
Why not apply the fugitive disentitlement doctrine? This equitable doctrine permits courts to dismiss an action brought by a person who has fled the jurisdiction in which he seeks justice. In lay terms, if you want to justice done in a sovereign’s courts, you cannot run from the sovereign at the same time. It is an applied variation of the equitable notion of clean hands: You cannot very well ask for justice if you are yourself behaving unjustly.
In Mr. Colala’s case, a serious and significant claim has been raised accusing government agents of violating right fundamental to all who reside in the United States. While his claim is not directed at the government as an entity – sovereign immunity prevents that, his claim is nonetheless directed at government agents acting under color of law. Those agents are defended by government lawyers working at taxpayer expense. If damages are to be awarded, it is a virtual certainty the government will pay them. The government is a party in fact, if not at law. To suggest therwise is to be blinded by threadbare legal fictions.
So the same government whose agents behaved like storm troopers now gets to throw a plaintiff out of the country before his case can be heard in the civil courts. When government agents behave like outlaws, the government ought not to be able to assure that a party bringins suit cannot perfect their claim by throwing them out of the country. It is simply inequitable. Just when can we expect the Federal Rules of Civil Procedure to be amended to reflect a Guantanamo Clause?
Washington Colala will soon be returned to Ecuador. He cannot remain in this country to offer testimony against government agents who violated rights guaranteed to all persons in this country, whether here legally or not. The government is empowered as a result of this decision to adopt policies in which lawful ends are accomplished by unlawful means. If it is all right to burst down the door of a suspected illegal alien, how much longer until it is all right to burst down the doors of those suspected of other crimes?
Why is it that when the courthouse doors are slammed, they close most often in the face of the people, but remain wide open to any two-bit thug in a uniform? Shame on Judge Underhill. Mr. Colala and the people of this country deserve better than a judiciary that permits the government to bury its tracks in such a disgraceful manner.