Drywallers Take the 5th at Hearings : Deportation: Constitutional claim stalls proceedings against striking workers arrested during labor demonstration.

Fifteen striking drywall workers who were arrested in Orange County last month fought expulsion from the United States at deportation hearings Tuesday by invoking their constitutional protection against self-incrimination.

When the workers were asked, “Are you a citizen of the United States?” each told an immigration judge that they would not answer, citing their rights under the Fifth Amendment to the U.S. Constitution.

The unusual tactic put a legal lug wrench into the immigration machinery, forcing immigration judges hearing the individual cases to schedule another round of hearings. At these hearings, the government will have the burden of proving that each of the men is in the country illegally.

“Usually it’s more common for people who are picked up by immigration not to contest or even seek a deportation hearing,” said Anne Kamsvaag, an attorney with the Coalition for Humane Immigrant Rights of Los Angeles. “We’ve advised them, however, to invoke the Fifth Amendment and leave it up to the government to produce evidence that these men are in the country illegally.”

The legal strategy was devised by a volunteer team of attorneys from immigrant rights’ organizations in Los Angeles, which included the Mexican American Legal Defense Fund, Legal Aid, Central American Refugee Center and others. It is designed to ensure that the immigration proceedings are not used as a weapon to undermine the workers’ efforts, the lawyers said.

But immigration authorities said the tactic would serve only to delay the inevitable for those workers who entered the country illegally.

In all, 26 drywall workers are contesting deportation. They were among 153 men arrested by Orange County sheriff’s deputies on July 2 after they held a labor demonstration in Mission Viejo to organize and bargain for higher wages. About 52 were turned over to the Immigration and Naturalization Service for possible deportation, and all but the remaining 26 have already opted for voluntary departure.

Immigration authorities said that during a “routine” roster check of the Orange County Jail after the July 2 arrests, the INS found more than 70 men suspected of being in the United States illegally. Of those, 19 were released after they showed proof of legal residency, and 24 agreed to return to Mexico.

The INS has denied accusations by immigrant rights lawyers of using the immigration proceedings to break the unionizing effort.

“This is not a labor issue, it’s an immigration issue. In fact, we became aware of these undocumented drywallers because we routinely check the booking documents at the Orange County Jail,” said Virginia Kice, an INS spokeswoman.

“Criminal aliens are a priority with us,” Kice said.

In some of the cases, Tuesday’s strategy found government attorneys unprepared to proceed.

One man’s case had to be continued to another date when government attorneys couldn’t find his case file. Another person, who had the right to invoke the Fifth Amendment, simply presented the immigration judge with his “green card,” a document proving he was a temporary resident alien, and his case was dismissed. Fifteen others invoked the Fifth Amendment.

A senior INS official later downplayed use of the tactic, saying “it’s not uncommon” for individuals to assert their rights not to testify. But immigrant rights attorneys said the Fifth Amendment has rarely been used by such a large group.

“It’s not that particularly unusual,” said John Salter, INS district counsel in Los Angeles. “If you enter the United States without an inspection, you can be prosecuted criminally. . . .”

But Salter disagreed about the tactic’s usefulness at the second round of hearings.

“The alien was interviewed (shortly after arrest) by an INS investigator as to the time, place, and date that they illegally entered the country. At the next hearing, the investigator will be subpoenaed to testify to that,” Salter said.

But Kamsvaag criticized the circumstances of those interviews.

“For example, we heard some stories when interrogation took place when the men hadn’t slept for 36 hours inside the Orange County Jail. They were not even coherent. There are separate facts for each case, but from what we understand so far, they do not have any evidence that is legally admissible,” Kamsvaag said.

In all, 15 deportation cases were continued on Tuesday, representing the first batch of drywall workers facing deportation. Deportation proceedings are expected for five more next week. Hearing dates for the other five have not been set.

On Tuesday, Spanish-language interpreters were provided by the INS for each of the 16 men who appeared for their hearings. Some, after conferring with attorneys, were given small pink cards with the Fifth Amendment printed in both Spanish and English. “In case they get nervous,” said Lorraine Munoz, a Legal Aid of Los Angeles attorney.

One of Munoz’s clients, Alberto Castellanos Antonio, was nervous, but did not refer to the card as he appeared before Roy J. Daniel, an immigration judge.

Castellanos first denied the government’s allegations that he was in the country illegally, and then was asked if he was a U.S. citizen.

“Yo me rehuso contestar bajo la Quinta Enmienda de la Constitucion de Los Estados Unidos,” he said.

When INS attorney Alan Saxon Youtsler asked, “Are you a native and citizen of Mexico?”

“I refuse to answer the question,” Castellanos responded, in Spanish.

“Many things are important to us right now,” Castellanos said during an interview after his hearing. “I’m fighting to raise wages. We have no medical benefits (on the job) and staying here and fighting my deportation is very important to me.”

The 153 drywall workers who were arrested in Mission Viejo were charged with trespassing, and several were also charged with conspiracy to kidnap because six non-striking workers were forced off the site during the protest.

Charges against 68 of those arrested subsequently were dropped, as were all the kidnaping allegations. Forty-eight pleaded guilty to charges of disturbing the peace at a labor demonstration, and 11 pleaded guilty to other charges, including battery and assault.

ACTIVIST ARRESTED

Police charge obstruction at drywall worker protest. B5