Jose Gomez: due process denied Credit: N.O. Workers Center for Racial Justice

Imagine law enforcement agents with unbridled power and no fear of being held responsible for their actions. There are no juries in their cases, and the administrative judges they appear before have none of the hallmarks of the independent judiciary that protects the rights of citizens. The subjects of their investigations cannot vote, are poor, and are nearly always too vulnerable to complain about violations of their rights. It’s a situation ripe for abuse.

Jose Gomez, a day laborer, got nabbed in an apparent sting operation by the Office of U.S. Immigration and Customs Enforcement (ICE) . His lawyers asserted violations of his First and Fifth Amendment rights, but on May 13, immigration Judge Roxanne Hladylowycz denied their motions without even holding a hearing. In Gomez’s view, he is the victim of racial profiling for being a Latino on the streets of New Orleans.

The nightmare began in 2011. Gomez was standing at a corner with other Latino day laborers seeking work when a man drove up in a truck and signaled with three fingers how many of them he wanted. The driver mentioned three days of painting and demolition work. Gomez and two others got in. The truck turned the next corner, and was immediately pulled over by an SUV containing uniformed ICE agents.

The other two men were taken from the truck while an agent questioned Gomez through the window of the front passenger seat. He gave her an identification card from the Congress of Day Laborers, a community organization formed to defend the civil and labor rights of its members. The card says the holder wishes to exercise his right to remain silent and to consult with a lawyer before answering questions, and provides the name and telephone number of a lawyer.

When Gomez cracked opened the car door to see what was happening to the other men, the agent threw it all the way open, grabbed Gomez and pulled him from the truck. The agent who had pretended to be seeking workers joined in. They pulled Gomez’s jacket over his head, forced him to the ground, and punched and kicked him repeatedly. When the beating stopped, they handcuffed Gomez and took him to the ICE office.

ICE would have you believe that this was not a sting operation to bust random Latinos but an operation focused on nabbing a particular ICE fugitive. The agents’ written report claimed that they were in their vehicle searching for the fugitive when they spotted Gomez and decided that he looked like the man in question. They approached Gomez, he began speaking to them in Spanish and voluntarily handed them a Mexican identification card. According to the agents, he began punching them when they sought to put him in handcuffs. They defended themselves and were finally able to subdue him, the report said. There was no mention of the man seeking workers or the truck.

Someone is lying. The accounts by Gomez and the officers cannot both be true.

Gomez’s lawyers, from the New Orleans Workers Center for Racial Justice, sought an evidentiary hearing and requested subpoenas for ICE to produce the warrant for the missing fugitive, his photograph, and other evidence that should have been available to document the ICE story — if it were true. They wanted to question the officers and were offering the government an opportunity to cross-examine Gomez under oath. They argued that the sting operation violated his First Amendment right to freedom of speech — in this case his right to publicly signal his availability for hire. Beating the suspect and then filing a false report constituted violations of Gomez’s Fifth Amendment right to due process of law. The government objected to all requests for further information.

A hearing was scheduled — a positive development for Gomez. But on May 13, two days before the scheduled hearing, Hladylowycz cancelled it and denied all of Gomez’s requests. The judge’s rationale was that independent older information in ICE’s files proved that Gomez was a Mexican national, and that due process did not require any further ventilation of the 2011 incident. In a subsequent hearing on June 23 the judge issued an order of deportation. Gomez’s lawyers are preparing his appeal.

Someone is lying. The accounts by Gomez and the officers cannot both be true. If the ICE agents were telling the truth, there would be a paper trail regarding the person they claim they were seeking, but the government has refused to provide any such evidence or to make the agents available for questioning. Although the agents claim Gomez committed an assault, they never brought criminal charges against him, so they never had to appear in court to back up the accusation.

The government’s story does not pass the smell test. The residents of this country have an interest, independent of Gomez’s immigration status, in holding ICE agents accountable for filing false reports and using excessive force. But the opinion by Judge Hladylowycz draws a curtain between the public and this agency and would cut off all further inquiry into the officers’ actions. Higher level immigration officials need to pull that curtain aside, prevent the deportation of Gomez, and ensure that local ICE agents cannot commit abuses with impunity.

Michael Avery is a Professor Emeritus at Suffolk Law School, Boston, and co-author of “Police Misconduct: Law and Litigation.”