Law-Abiding Motorists Are Sideswiped by INS Seizure of Vehicles, Critics Contend

Ben F. Mortensen says he was just giving a relative from Mexico a ride from Tijuana to the Los Angeles area last February. Nothing out of the ordinary.

But the Westchester, Calif., clinical psychologist, a former Mormon bishop and decorated Korean War chaplain, soon ended up in federal custody, fingerprinted and photographed, a suspected smuggler, his almost-new 1987 Toyota Celica seized by the U. S. government. His cousin, it turned out, didn’t have papers, although he says that she had assured him otherwise.

“It was horrible,” Mortensen says, recalling what he characterizes as intimidation by authorities. “I told them I wasn’t smuggling anyone. But they said, ‘We’ve heard that before.’ ”

Guilty in INS’ Eyes

Mortensen was never prosecuted, but in the eyes of the U. S. Immigration and Naturalization Service, he was guilty anyway. The government kept his car, which Mortensen didn’t get back for six months--after experiencing considerable inconvenience and frustration and incurring $8,000 in costs, including attorney’s fees, rental costs for a substitute car and a $1,000 fine.

“The whole thing was ludicrous and unnecessary,” he said.

Mortensen’s experience was not unique. He was actually fortunate: At least he got his car back. Many never do.

At a time when the U. S. Customs Service and Coast Guard have made headlines with sometimes-controversial “zero-tolerance” impoundments of drug-ferrying vehicles, ships and aircraft, the INS’ little-noticed, 10-year-old vehicle-seizure initiative has an even longer history--leading to even greater controversy--in the U.S.-Mexico border area.

Each year, immigration officials in San Diego seize thousands of vehicles transporting illegal aliens or allegedly involved in alien smuggling.

In the most recent fiscal year, the INS and the Border Patrol, an INS enforcement arm, took possession of more than 2,700 vehicles in and around San Diego, making the region second in such seizures to the El Paso area, also on the border.

By contrast, the INS says, it seized only 18 vehicles in the Los Angeles area during the past fiscal year.

Many of the seized vehicles are clearly implicated in smuggling: Illegal entrants frequently have been stuffed into trunks, false compartments and trailers. Profiteering smugglers, knowing of the government’s stepped-up seizure policy, are increasingly turning to stolen or rented vehicles.

But another category of seized cars and trucks belongs to individuals such as Mortensen, who contend they never meant to smuggle anyone and were only giving rides to relatives or others. Many, like Mortensen, say they have no smuggling record and made no effort to conceal the undocumented passengers--or were unaware of the passengers’ immigration status.

That doesn’t necessarily matter to the INS. Although they may never be prosecuted--critics say such cases would rarely stand up in criminal proceedings--such motorists may lose their vehicles for months, years or forever. Vehicles forfeited to the government are added to official fleets or sold at auction.

Don’t Have to Be Driving

The seizures occur at more than ports of entry to the United States, such as San Ysidro. Agents of the Border Patrol roam inland roads in San Diego County and other border areas, seizing the vehicles of drivers who are transporting illegal aliens.

Motorists don’t have to be driving to lose their cars. Lending a vehicle to a friend, acquaintance or loved one--if they turn out to be illegal aliens--can land your car in the INS impound lot. Owners may end up forfeiting vehicles even if someone used them without permission, if the INS determines that owners didn’t exercise “due diligence.” Undocumented drivers are also subject to having their vehicles taken away.

Among those whose vehicles have been confiscated: A woman who lent her car to her English-speaking boyfriend, who, it turned out, was undocumented; a husband who was stopped as he drove his undocumented wife from a beach in San Diego; a woman who says she offered a ride to an acquaintance after an office party in Tijuana.

Critics say the INS is taking a seizure law meant to deter smugglers and applying it well beyond its intent, using it on law-abiding motorists whose only crime is giving rides to passengers who turn out to be undocumented. Determining legal residence is an often-complicated process, critics note, and the law imposes no requirement that all drivers examine the immigration status of passengers.

“They’re forcing normal citizens to become cops,” said Jan Joseph Bejar, an immigration attorney in San Diego who represented Ben Mortensen and is one of the few lawyers who will take the cumbersome cases.

Owners of seized passenger vehicles have two basic options: Attempt to negotiate a release with the INS, or post a bond in timely fashion and fight the seizure in court. Either way, success is not guaranteed. The seemingly capricious process can drag on for months or years, attorneys say, with a fine of several thousand dollars still imposed at the end. There are exceptions in the law for lien holders and commercial carriers who can demonstrate they weren’t involved in smuggling.

Adding to the aggravation, say Mortensen and other critics, is that INS inspectors are routinely discourteous and intimidating and often provide misleading information to drivers whose vehicles are seized. In addition, notices of other seizures are sent out in English, a language often not understood by the recipients, many of whom are of Mexican descent.

“They (INS officials) are very rude as a matter of course,” said Lilia S. Velasquez, a San Diego attorney who has also handled seizure cases. “There’s a definite presumption of guilt. Their attitude is, ‘Look, we’re dealing with liars every day.’ ”

Indeed, INS officials state flatly that a decision to seize a vehicle amounts to a finding of guilt. That drivers often aren’t prosecuted criminally as alien smugglers isn’t a function of tenuous legal grounds, as critics say, but is rather an effort to avoid crowding prisons, according to the INS.

“If we prosecuted everyone who smuggles aliens, we wouldn’t have enough jail space,” explained Clifton Rogers, the INS’ deputy district director in San Diego.

Instead, agents simply seize people’s vehicles.

The INS says its officers are courteous and helpful, even though they must often endure abuse from outraged motorists.

“It’s my view that all of the agents here control themselves,” said Luis Valderrama, who heads the Border Patrol’s five-member vehicle seizure unit in San Diego. “Most of the statements (from motorists) are self-serving. People have a way of rationalizing things.”

The members of the Cardenas family of Bell Gardens, Calif., maintained they had a reasonable rationalization. But they say INS courtesy was in short supply.

In August, 1986, INS agents at the Tecate border station seized their 1984 Dodge van--purchased the previous year for about $24,000--because a passenger and the passenger’s child were illegal aliens. Esther and Esteban Cardenas, parents of nine children, had purchased the van for the transportation to and from school of their 14-year-old son, Alfredo, a U. S. citizen born with cerebral palsy.

Esther Cardenas, who was driving the day the van was seized, maintained that she gave the woman a ride out of kindness and had assumed that the woman, who spoke English, had U.S. immigration papers. The INS had a different story: The woman stated that Cardenas was smuggling them into the United States for a fee, an assertion that an agent relayed to Cardenas.

“I was honestly shocked to hear such statements from the officer,” Cardenas recalled in a court affidavit. “I told the officer the truth, that I did not know this woman, and had only agreed to give her a ride to help her out.”

Cardenas wasn’t prosecuted, but her van was now government property. She had entered the murky world of the INS seizure program. She first sought to get the car back by negotiating with the INS, but eventually filed court action.

A month after her van was seized, Cardenas and her husband, Esteban, went to San Diego to speak with Stan Holman, the INS official who heads the seizure unit.

“There is no question that the officer did not believe anything we were saying, and did not want to hear what we had to say,” Esteban Cardenas, a laborer, said in an affidavit. “The final words of the officer were that we could not get the van back. . . . Officer Holman must have had a bad day when we went to see him because he treated us like common criminals, and simply did not believe my wife.”

Holman declined to comment on the matter, but Rogers, the INS deputy director, said the agent acted properly.

Last month, two years after it was seized, the Cardenas van was returned to the family after a court settlement. The family first had to waive their right to future legal action and pay the government $3,800 in fines and other costs--on top of the thousands of dollars in legal fees and other expenses they had already paid.

“The Cardenas family feels a great injustice has been done,” said Velasquez, the lawyer who represented them. “They feel the government, for two years, deprived their child of his only means of transportation.”

Rogers, responding to the Cardenas and Mortensen cases, said: “Both were caught violating the immigration law . . . and both are now attempting to get some personal satisfaction by trying it in the news media.”