“I would have said, ‘Your Honor, I’m sick,’ ” Macri explained.
But the status of immigrants isn’t addressed at all in the Constitution or its amendments, and the border control system that grew up over the course of the nation’s history provides few of the due process safeguards of the criminal courts.
Immigration officials say they decide whether to detain someone, within “a reasonable period of time,” and the immigrant will be brought before an immigration judge “as soon as is practicable,” and that can depend on the judge’s docket.
Thousands of detainees like Bamenga get no hearing at all because their deportation is automatic, meaning that their fate is essentially decided by the people who arrest them.
“There is no rhyme and reason to a lot of this,” said Macri. “It all depends on who picks you up, who encounters you, how they feel about you, and what their bed space looks like to determine if you’re going to be one of the lucky ones or the unlucky ones.”
‘Like I had killed someone’
Jesus Tovar was not one of the lucky ones.
The 36-year-old father of five had been living illegally in Mission, Texas, near the Mexican border, for more than a decade, but he had no criminal background when Customs and Border Protection agents arrested him last March while he was on his way home from work laying tile. Tovar said the agents told him they were looking for smugglers, but caught him instead.
After an initial call to his family to report he’d been arrested, they heard nothing more from Tovar or anyone else; they could not even find his name on a Department of Homeland Security website set up by the Obama administration to help families find detained loved ones.
Over a nine-day period, he was shuffled five times from one jail to another and forced to sleep on concrete floors, or in a windowless room with more than 100 other men.
After Tovar had been missing for four days, his wife, Gloria, called the Globe, which had been in contact with a lawyer that knew the family. The Globe eventually found him in the East Hidalgo detention center, about 40 miles from the family’s home. Initially, the jail denied to a Globe reporter and to the family in separate calls that Tovar was there, before acknowledging he was there temporarily.
Like Bamenga, immigration agents put Tovar in shackles and a belly chain when they transferred him from one jail to another.
“They put me in handcuffs like I had killed someone,” he said in Spanish. “They tied my feet, my hands and my stomach. I was like, ‘I haven’t killed anyone, what is this?’ ”
Finally, that same month, ICE released Tovar on personal recognizance, after the Globe inquiry into his case. He has a deportation hearing scheduled for next year in immigration court.
A crucial conviction
By the time President Obama announced a two-year reprieve from deportation for young undocumented immigrants this June, it was too late for Luz Tamayo.
Tamayo, a 28-year-old manager of a Sizzler restaurant in Phoenix, might have been a perfect candidate: She arrived from Mexico as a baby in her mother’s arms. But when it became clear that her good grades and flawless English were useless without legal residency, she bought a fake Social Security card in her own name and went to work.
Her lawyer likened the act to a college student getting a fake ID, but for Tamayo, it was a mistake that could get her deported.
In 2010, Maricopa County Sheriff Joe Arpaio, the 80-year-old Springfield, Mass., native known as “America’s toughest sheriff,” raided the Sizzler as television cameras recorded the event, arresting Tamayo and several other Latino employees for identity theft and other crimes that day.
After a month in jail, Tamayo pleaded guilty to identity theft, even though the court warned her in writing that it was a felony conviction that could get her deported. Tamayo said she didn’t realize the implications — her lawyer at the time did not return calls for this article — and she was desperate to return to her family, which was running low on money and food.
“Nobody else was going to support my kids,” said Tamayo, who has no other criminal conviction. “I was just working. I wasn’t trying to go out there and have everything. I was just trying to live, day by day.”
Instead of being released at the end of her 90-day sentence in September 2010, Tamayo was transferred to an ICE jail in the Arizona desert for another seven months. She begged immigration to let her out on bail so that she could return to her children, Ivan, 9, and Erika, 7, who were being cared for by relatives. But the immigration officer, according to Tamayo, said the more she fought, the longer she would be in jail.Continued...