Mimesis Law
22 April 2021

Being Tough on Immigration Means Being Tough on Victims

February 17, 2017 (Fault Lines) — It should go without saying that immigrants are people. They’re hardworking. They’re lazy. They’re smart. They’re stupid. They possess every single trait, good or bad, that non-immigrants possess. That means some of them are horrible abusers who make their victims miserable. Some of them, on the other hand, are victims of horrible abuse. They’re sometimes people who desperately need the protections afforded to people in this country by our justice system.

It’s the fact that genuine victims should be able to seek the help of the system designed to assist them that makes this story about ICE detaining an alleged domestic violence victim so troubling to many:

Federal immigration agents went to the El Paso County Courthouse last week and arrested an undocumented woman who had just received a protective order alleging that she was a victim of domestic violence.

The agents apparently detained the woman Feb. 9 after receiving a tip, possibly from her alleged abuser, whom they already had in custody, El Paso County Attorney Jo Anne Bernal said.

The alleged abuser is innocent until proven guilty, of course, but that shouldn’t be an awful lot of comfort. If the victim here lied about abuse to get back at her innocent boyfriend after returning to the country illegally, then it’s probably not a terrible result for her to be detained, punished for the reentry, and ultimately deported.

Few people are going to be too mad about that result for someone who perjured herself in court to another’s detriment. But the problem is that we don’t know that’s the case. In fact, it’s likely not the case given that she’d just received a protective order from a judge who presumably issued it after hearing the facts.

So what we have is someone who was abused and sought the protection of our courts only to have that backfire bigtime. This abuser might’ve been in custody, but what if he’d been out? What if he was still sitting at home, waiting for her to come back so he could beat her again? She’d have to decide between risking detention by trying to protect herself with a restraining order and potentially being hurt or killed by her violent boyfriend. The abuser here won a victory for abusers everywhere. They can hurt an undocumented immigrant and either keep them out of court or watch with smug satisfaction as they get shackled and charged themselves.

If you’re surprised anything like this could ever happen, wake up. This isn’t anything new, but rather just a variation of something that’s been happening as long as we’ve had a justice system. Consider the complaint. This victim isn’t just someone who accidentally overstayed her visa a few days. That charge is one of illegal reentry, a federal felony.

This victim has criminal history, some of it pretty ugly. There appears to be a criminal immigration offense in her history too, so a (b)(1) enhancement triggering a much higher maximum potential sentence and an increase in the offense level may be in the future for her too. If she broke the law, shouldn’t she have to pay? Should she get away with it just because she was a victim?

The detention has alarmed Bernal and other county officials who fear that the arrest will scare undocumented victims of domestic abuse into staying with their abusers for fear of being deported and separated from their children or other family members.

No prosecutor should be alarmed by that. Prostitutes have been scared of reporting rapists for as long as prostitution has been illegal. People have been robbing drug dealers without fear of them going to the police afterwards since the very beginning of the drug war. We’ve criminalized all sorts of things. A lot of it is stuff that people do all the time, crimes people have always committed and will continue to commit as long as there are people on earth. We also issue arrest warrants for people who don’t appear in court or can’t pay their fines for stupid little things. The result of all of this is inevitable. Some people are going to have a very difficult decision to make if they want access to the justice system.

One fascinating thing here is that it’s the county attorney who’s so concerned about this victim who’s broken the law:

“Our clients come to us at the lowest point in their lives,” said Bernal, whose office represents domestic abuse victims when they seek court orders against their abusers. “Many of them are so frightened of coming to us because of possible immigration concerns.”

It would be interesting to know if Bernal’s office ever asks for warrants for victims’ arrests when they fail to cooperate and appear. It would be even more interesting to know whether Bernal’s office has ever prosecuted someone who was taken in on a warrant while contacting police after being the victim of a crime. It would be an unusual jurisdiction and an unusual prosecuting agency indeed if all victims were wholly without sin and none of the defendants had also been victims at some point.

This may or may not be true, but if it is, it still isn’t like Donald Trump invented this sort of situation:

The arrest comes at a time of heightened concerns that under the administration of President Donald Trump, ICE is expanding who it tries to deport and how it goes about deporting them.

We have laws that will result in victims being scared of reporting crimes committed against them. Before, we might’ve let some things slip. We occasionally realized things were prohibited by law, but we understood not only that arresting and charging and convicting and punishing every person for every crime is probably impossible, but also that we probably didn’t want that to happen. The new mindset appears to be that we should strive for the ideal of catching everyone. If that’s going to happen, we’re going to have to accept the fact that we’re going to be doing some big favors to some very bad people:

It’s common for abusers to seek to control undocumented partners by threatening to refer them to immigration authorities, said 65th District Judge Yahara Lisa Gutierrez, who oversees the court that issued Gonzalez’s protective order.

Whatever her own history, the woman made three police reports late last year, alleging that she had been punched, kicked and chased with a knife, Bernal said.

Judge Gutierrez said ICE agents should avoid effectively assisting domestic abusers by acting on their tips against their partners.

Abusers everywhere now have a new best friend, though they’ve had friends just as good pretty much all along. Situations like this are a necessary by-product of authoritarianism because people aren’t perfect and the rigid framework of our laws never quite fits on top of the complicated web of human behavior.

If you want to tighten up enforcement, you’ll get some people you never otherwise would’ve gotten. They might also be victims of something worse, and some people who do those worse things are sure to get away with it because their victims will never report it.

Snatching the low-hanging fruit means doing countless favors to some truly bad people. Want strict enforcement? You can’t make an omelette without breaking some eggs. It’s ugly work.

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