Commentary : INS’ Letter-of-the-Law Policy Hurts Us All

The so-called zero-tolerance program of the U.S. Coast Guard and the Customs Service has called great attention in recent weeks to federal laws allowing the seizure of vehicles used to smuggle drugs into the United States.

Nobody seems to have much trouble accepting the government’s application of these statutes to smugglers dealing in large quantities of drugs. But, when the laws were strictly enforced and cars belonging to ordinary citizens--people only casually connected with drug use--were seized, it caused a furor in the community.

For a person to lose his or her car because a forgotten pipe with marijuana residue was found in the glove compartment, or because the tail end of a marijuana cigarette inopportunely fell out of an ashtray and into the palm of a customs officer at the border seems excessive punishment.

What has been overlooked in the zero-tolerance controversy, however, is that this same letter-of-the-law philosophy is being used by the U.S. Immigration and Naturalization Service. Using a law designed to hinder alien smuggling, the INS is seizing cars even when the illegal alien is a family member, neighbor, employee or friend.

For years the INS has been seizing vehicles used in violation of immigration laws. In the San Diego area, the more common examples were those in which the driver lied or otherwise helped an alien enter the country illegally, or drove him past the Border Patrol checkpoint near San Onofre. The case was aggravated if the driver was paid for his help.

But cases involving an undocumented family member or someone with a long residence in the United States usually were treated less harshly.

In November, 1986, the seizure law was changed, giving the INS much broader discretion. This law now allows INS officers to seize vehicles in which undocumented aliens are traveling--regardless of when they entered the United States, how they became illegal, their relationship to the driver, or whether they are caught coming over the border or on their way to the market. These amendments enable the INS to conduct its own zero-tolerance program, which, unlike the Coast Guard’s and Customs Service’s, is administered swiftly and quietly. In the 1987 fiscal year, the INS and the Border Patrol seized almost 2,700 vehicles.

Presumably the purpose of the law is to provide for economic, in addition to criminal, sanctions against smugglers of aliens. The problem is that the law is written in a very broad manner.

Take, for instance, the case of John (not his real name), a foreigner with papers, who is married to an illegal alien from Mexico. John, his wife and their children drove in the family car one Sunday to the beach in the South Bay. On their way home they were stopped by the Border Patrol. They were arrested, and their car was seized. John was accused of transporting an illegal alien. “She’s my wife!” he argued. The Border Patrol did not bring criminal charges against John, but his vehicle was taken away, and his children, who are U.S. citizens, and his wife were taken to Mexico.

In my experience, most people in situations like John’s do not feel they have violated the law. All he did was go to the beach with his family. He did not help her cross the border, nor was he taking her to Los Angeles or otherwise helping her to “elude examination by INS officers.” Yet the law allowed the INS to keep his vehicle.

Once a car has been seized, getting it back can be expensive and time-consuming.

The owner can try to deal with the Border Patrol directly and petition for the car’s return, or, if he wishes to contest the seizure, he can post a bond for 10% of the car’s appraised value and have the case placed in U.S. District Court. Otherwise, the car will be auctioned.

If the owner decides to discuss the case with a Border Patrol agent and succeeds in recovering the car, he normally will pay a hefty penalty.

If he decides to take the case to federal court, he must pay attorney’s fees, without any guarantee of getting the car back.

Such a policy poses serious problems for the friends and relatives of undocumented aliens and can strain relationships.

But those people are not the only ones at risk. Drivers have also had their cars seized for giving rides to people they did not know were in the country illegally.

The government has argued that the driver did not do everything in his power to make sure his vehicle was not misused. These car owners may get their cars back, but they often must pay stiff penalties as well.

In effect, the law forces each of us to virtually be immigration officers.

We not only have the burden of doing Big Brother’s job by checking into the status of those we are hiring, as required under the employer-sanctions law, also enacted in 1986, but we are obliged to check into the status of anyone we give a ride to, or risk losing our cars.

We criticize the extreme methods of Iran’s Ayatollah Ruhollah Khomeini, who would have a thief’s hand cut off for what we might consider a minor offense.

Yet, in the United States of America one can lose an automobile for being a Samaritan and giving a friend a ride.

The INS should re-examine this letter-of-the-law policy so that it conforms with the spirit and original intent of the law.

Jan Joseph Bejar has been an immigration attorney in San Diego for five years. He is a U.S. citizen who was born and raised in Mexico City.