After serving his prison time in California, ICE arrested a US citizen, damage claim says
CORRECTION: This story has been corrected to reflect that CDCR officials did respond to a request for comment with a statement. That statement has been added to the story.
Two civil rights organizations have filed claims against Gov. Gavin Newsom and California Department of Corrections and Rehabilitation officials on behalf of four individuals — including a U.S. citizen — seeking damages for their “illegal” transfers to immigration officials.
The ACLU Foundation of Northern California and the Asian Americans Advancing Justice - Asian Law Caucus on Tuesday filed damage claims with the state’s Office of Risk and Insurance Management on behalf of Tien Phung Pham, John Emmanuel Carvajal Victorio, Brian Bukle, and Jose Alcides Argueta Rivera.
The claims were also filed against CDCR as an agency and CDCR Secretary Kathleen Allison. The governor’s office did not respond to requests for comment Wednesday.
In a statement Wednesday, CDCR officials said they couldn’t comment on the “specifics of pending legal claims,” but said they cooperate with all law enforcement agencies.
“To protect public safety, CDCR cooperates with all local, state, and federal law enforcement agencies that have an active hold or detainer for a current California state prison inmate,” officials said in the statement. “CDCR does not determine the immigration status of inmates in state custody. ICE makes the determination of whether to put a hold or detainer on individuals and determines whether or not to detain them upon their release from prison.”
But Monica Hassan, deputy director of the Department of General Services’ Office of Public Affairs, said any claims filed with the Government Claims Program would be processed through normal procedures.
According to copies of each claim, each individual is seeking more than $25,000 in damages.
“When I learned that CDCR was turning me over to ICE, and not to my family, I was terrified,” Bukle, a 61-year-old U.S. citizen, who was held by ICE for more than a month, said in a brief statement to The Bee on Tuesday. “It was important for me to file this claim because I want justice for the pain I went through and because I want state officials to stop doing this to other people.”
Attorneys say the transfers to U.S. Immigration and Customs Enforcement were illegal under the federal Immigration and Nationality Act. Two separate codes under the subsection — Exercise of power by immigration officers — outline immigration officers who have the authority to make immigration arrests and carry out warrants for arrests for immigration violations.
These transfers, they said, also violate people’s constitutional rights under the Eighth and Fourteenth amendments.
Bukle on Tuesday said he wants state officials to “stop this nightmare of uncertainty and fear.”
Bukle is a naturalized U.S. citizen, and so are his parents. He was transferred into ICE’s custody by CDCR officials on June 17. ICE sent a detainer to CDCR for Bukle around March 28, 2019, according to his claim.
“In that detainer request, ICE stated falsely that it possessed probable cause that Mr. Bukle was removable from the United States because of biometrics checks of federal databases,” his complaint reads. “Mr. Bukle repeatedly told CDCR employees that he was a U.S. citizen. CDCR employees recorded in Mr. Bukle’s Central File that he was a U.S. citizen.”
However, CDCR said there was an ICE detainer for Bukle on record, according to his complaint. He was scheduled to be released from a CDCR facility on June 21, but on June 16, a CDCR employee informed Bukle that ICE would pick him up the following day.
Bukle once again informed a CDCR employee that he was a U.S. citizen, but he was informed ICE would still take him into custody. On June 17, Bukle and another individual were taken to a secure area and were told to wait for ICE.
Two officers in “grey uniforms” who Bukle said he believes were with G4S entered the building.
“The G4S officers chained and cuffed Mr. Bukle while he was inside the CCI (California Correctional Institution) facility,” according to his complaint.
Bukle informed G4S he was a U.S. citizen, but he was transported to an office in Bakersfield. Bukle’s brother also informed ICE via phone that his brother was a citizen, but ICE said it didn’t “have evidence” showing he was a citizen, according to his claim.
Bukle was detained at Mesa Verde ICE Processing Facility in Bakersfield for 36 days — at a time when the facility was experiencing a COVID-19 outbreak. Bukle feared he would contract COVID-19 and that he would be deported.
“Mr. Bukle was eventually released from MVDF by ICE once the federal government finally acknowledged his citizenship,” his claim reads.
Attorneys say CDCR “proactively” cooperates with ICE to transfer and deport individuals.
CDCR sends a list to ICE of people who are foreign-born, even if people are in the country legally, said Jenny Zhao, a staff attorney with Asian Americans Advancing Justice - Asian Law Caucus. If ICE is interested in a person, the federal agency will send a detainer to CDCR.
Once the person’s release approaches, Zhao said, CDCR will coordinate with ICE to “set up a convenient date for the person to be released and picked up by ICE.” Furthermore, CDCR will hold the individuals in a secure area at its facilities until ICE or its private contractor, G4S Secure Solutions, arrive to arrest them, according to copies of the claims.
Oftentimes, private security guards — and not ICE agents — with G4S are the ones who arrest individuals being handed over to them from CDCR. Private contractors, such as G4S, don’t have authority under federal law to make immigration arrests, however, Zhao said.
“CDCR has known at least for a couple of years now that there’s a federal regulation that essentially only allows specific immigration officers to make these types of immigration arrests,” she told The Bee during an interview. “Private contractors are not allowed to arrest people for immigration purposes.”
The state has been put on notice, Zhao said, even before these claims were filed about the illegality of state officials cooperating with private contractors, but they continue the practice.
Furthermore, some of the detainers sent to CDCR to hold people for ICE’s private contractor are based on databases that have been found to be “riddled with errors,” said Vasudha Talla, director of the Immigrants’ Rights Program at the ACLU of Northern California.
“The databases have so many errors, it’s not possible for ICE to really make an informed judgment about whether the person should be taken into custody and put in removal proceedings,” she told The Bee during an interview Tuesday, highlighting Bukle’s case as an example of the flawed databases.
Victorio, 41, another claimant who suffers from numerous medical issues, contracted COVID-19 after being transferred to Mesa Verde.
He wasn’t allowed to see a doctor until a week after he started feeling ill, according to his claim.
“During the COVID-19 pandemic, we really think that CDCR needs to be held accountable for their transfer of people to ICE custody knowing full well how terrible the conditions in ICE custody are,” Talla said told The Bee. “It is, in fact, a violation of the constitution for them to transfer people to ICE custody where they are going to be exposed to greater risk of contracting COVID-19.”
Pham, a refugee from Vietnam, said he hopes his claim will help stop the physical and mental suffering of others similarly affected. As of Tuesday, he had been held by ICE for 99 days.
“I’m supposed to be with my family,” he said in a statement through his attorneys on Tuesday. “I have paid my debt to society and have been rehabilitated, but the state has punished me twice by transferring me to ICE for deportation.”
State officials will have 45 days to respond to the claims.
“They have an opportunity to settle the claim at an early instance before the filing of a lawsuit,” Talla said. “We hope that they do the right thing, and try to resolve these claims, try to compensate our clients for their harms. But if they do not, if they deny the claims or ignore them, we would be able to sue the agency in 45 days.”
If the organizations file a lawsuit, it would be on behalf of a class of people affected by the same practices, Zhao said.
“It was a great injustice,” Argueta Rivera said Tuesday through his attorneys. “I had the right to return to my daughter, to begin to reunite with her and my community, to begin working and to rebuild my life, but CDCR denied me that for 58 days. I feared for my life.”
Bukle served a sentence of about five years for an assault conviction and a conviction for possessing a firearm. Victorio, who has a number of convictions related to drug addiction, last entered CDCR in late 2018 or early 2019, according to Sarah Hopkins, a spokeswoman for the ACLU Foundation of Northern California.
Pham was tried as an adult at the age of 17 and convicted of attempted murder. He served about 20 years in prison before he was determined to be suitable for parole by CDCR and Newsom, according to Hopkins. Argueta Rivera has a conviction for second-degree attempted robbery, she said, and was sentenced to two years in prison.
This story was originally published December 9, 2020 at 5:57 PM with the headline "After serving his prison time in California, ICE arrested a US citizen, damage claim says."
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