Owners Show Zero Tolerance for Border Car Seizures

Ben F. Mortensen says he was just giving a Mexican cousin a ride from Tijuana to the Los Angeles area last February.

But the Westchester clinical psychologist, a former Mormon bishop and decorated Korean War chaplain, soon ended up in federal custody, an accused smuggler, his Toyota Celica seized. His cousin, it turned out, did not have immigration papers, although he says that she had assured him otherwise.

“I told them I wasn’t smuggling anyone,” Mortensen said, recalling what he characterizes as intimidating comments by U.S. authorities. “But they said, ‘We’ve heard that before.’ ”

Mortensen was never prosecuted, but in the eyes of the U.S. Immigration and Naturalization Service he was guilty anyway. Mortensen did not get his car back for six months, and then only after experiencing considerable inconvenience and frustration and incurring $8,000 in sundry costs, including attorney fees.

Mortensen’s experience was not unique. At a time when the U.S. Customs Service and Coast Guard have made headlines with “zero-tolerance” impoundments of drug-ferrying vehicles, ships and aircraft, the INS’ little-noticed, 10-year-old vehicle-seizure initiative has an even longer record of accomplishment--and controversy--in the U.S.-Mexico border area.

Each year, U.S. immigration officials in San Diego seize thousands of vehicles that were transporting illegal aliens or allegedly involved in alien smuggling. In the most recent fiscal year, the INS and the U.S. Border Patrol, an enforcement arm, took possession of more than 2,700 vehicles in and around San Diego.

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

But a whole other category of seized cars and trucks are owned by individuals such as Mortensen, who contend that they never meant to smuggle anyone but were only giving rides to relatives or others. Many, like Mortensen, say they made no effort to conceal the undocumented passengers and did not know that the passengers were entering the United States illegally.

That doesn’t necessarily matter to the INS.

Motorists don’t even have to be driving to lose their cars. Lending a vehicle to a friend, acquaintance, 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 did not exercise “due diligence.”

Critics say the INS is taking a seizure law meant to deter smugglers and applying it well beyond its intent.

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.

Most owners of seized passenger vehicles have two basic options: Attempt to negotiate releases with the INS or post bonds in timely fashion and fight the seizures in court. Either way, success is not guaranteed.

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.

“They (INS officials) are very rude as a matter of course,” said Lilia S. Velasquez, a San Diego attorney who has handled seizure cases. “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, the INS says, but is meant to conserve limited jail space. Critics say the move limits legal recourse.

The INS says its officers are courteous and helpful, even though they must often endure abuse from outraged motorists. “Most of the statements (from motorists) are self-serving,” said Luis Valderrama, who heads the Border Patrol’s seizure unit in San Diego. “People have a way of rationalizing things.”

The members of the Cardenas family of Bell Gardens maintained that they had a reasonable rationalization.

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

Esther Cardenas 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 for a fee.

Cardenas was not prosecuted, but her van became government property. Cardenas and her husband later went to San Diego to speak with Stan Holman, the INS official who heads the car 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. “Officer Holman . . . treated us like common criminals and simply did not believe my wife.”

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

Two years after it was seized, the Cardenas family finally got their van back last month, after a court settlement. They 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.