As I put my car in park, I spot through my windshield Wilson’s familiar smile. It’s a smile so impossibly wide, it seems to run off the edges of his thin face. He actively listens with his whole face and has the demeanor of a dusty, hardworking ranch hand in a John Wayne western. He’s skinny, but I’ve seen his wiry frame nonchalantly accomplish incredible feats of strength, hours on end, with little to no rest. A contractor across Long Island, he doesn’t work cheap, but he works honest. He parks his truck at the far end of the sleepy town court lot. The building itself has all the flair of cinderblock—it’s as far as you can get from the awe-inspiring Corinthian columns and marble steps that spill down to the sidewalk from the temples of justice littering Centre Street in Manhattan, where I more often practice law.
At the edge of the parking lot, Wilson and I chat briefly, not daring to mention “the plan,” but instead the traffic I found on my way to the end of the earth. The plan, which we went over twice in the past week like we were plotting a bank heist, was for my white-passing attorney ass to scope out the situation inside the courthouse before waving him in for his red-light ticket appearance. It’s a sunny summer day, but as I trot across the blacktop parking lot, I remove my shades to make sure I don’t miss even the smallest detail. While sweating through my suit, I’m looking for ICE.
Long Island has had a turbulent relationship with Mexican and, more recently, Central American immigration. In the late ‘90s, Suffolk County’s thriving landscaping, construction, and restaurant businesses attracted a surge of immigrants to fill those low-wage jobs. While these growing industries appreciated this cheap workforce, some residents—far whiter and far more conservative than those of the eminently diverse counties of Kings and Queens—opposed the presence of the newcomers, alleging a rise in noise, overcrowding and crime. This tension bubbled under the surface and eventually boiled over in 2000, when two men with ties to racist groups lured two day laborers to a basement, from which they barely escaped with their lives.
In the years after the Farmingville hate crime, a wave of Central American immigration reached the shores of Long Island. While the vast majority of the individuals in that wave were typical hardworking people fleeing violence in their home countries, there were also gangs. The most infamous was MS-13, a favorite Willie Horton-type boogie man for conservative politicians. MS-13 comes out of Trump’s mouth when he makes the case for ceasing all immigration from the region, and when he stoked fear against caravans made up of largely women and children. That takes us to this moment, when Trump’s base in the region is still motivated by hatred and fear of brown people, and a blind and unconditional allegiance to the police.
Evading ICE’s (Lack of) Chill
Though I did a summer at the Bronx DA’s office, I never really aspired to work in criminal law. Someone’s life on the line is the kind of thing you bring home with you, and I never trusted my ability to look at a human being as a file. I’ve been in civil practice 15 years now, only occasionally handling low-level criminal proceedings, which haven’t convinced me I was wrong for focusing on labor and employment after taking my oath. But here I was, walking across blacktop toward what could be a trap that sends a good, hardworking man back to a struggling Central American country with a blue-and-white flag—back to a life any reasonable person would run from. Not only could what happens in this hearing come home with me, but if this appearance goes sideways, it will be the one loss in my career I can’t live down.
In the last few years, ICE has targeted undocumented immigrants in and around what was once sacred: our nation’s courts, including civil and family. Since the dockets of most courts are public record, ICE agents can fairly easily identify undocumented immigrants with planned appearances and wait for them on the steps, in hallways and in parking lots. The problem with this practice is it creates a chilling effect, deterring these communities from using the justice system. It gives the undocumented a disincentive to clear their names, answer for their actions, or hold companies accountable for unsavory business practices that also rip off citizens. It also keeps undocumented immigrants from seeking redress for being injured by the same unsafe conditions that hurt citizens. And it keeps them from working with authorities to apprehend violent criminals who prey on the weak, which also include citizens.
Driving While Brown on Long Island
The entrance and hallways of the town court are cramped and probably became obsolete the second the cement dried, as the population roughly doubled since the architectural monstrosity’s construction in the ‘70s. Manning the metal detector and X-ray machine are four security guards—about two too many for the space. Down a short hallway is the Justice Court, which isn’t much more than a 50-meter hallway housing a clerk’s office with a window, a wall with case information, and a courtroom. While the town is 85% white, about half of the crowd waiting for cases to be called are people of color. Having personally successfully sued Suffolk County Police officers for violating my clients’ civil rights, I’m not surprised at how many DWB (“driving while black or brown”) summonses had been handed out.
All these DWBs in the courtroom reminded me of how Arizona made it an actual law in 2010, giving carte blanche to local police to stop and detain anyone on suspicion of being undocumented. I had been a citizen since the early ‘90s, but this prompted me to add my Green Card to my business card case, creating a jarring juxtaposition between the scared little blond kid on the ID and the dark-haired, disheveled, Colombo-esque attorney doing his networking at bars. Two years after Arizona’s law passed, it was invalidated by the U.S. Supreme Court, which held that brown-ness alone was not sufficient as probable cause. Joe Arpaio (“America’s Toughest Sheriff”) from Arizona’s Maricopa County then boasted into any camera and microphone he could find that he would continue to order his officers to detain brown people on suspicion of being undocumented. He’s not the only sheriff or police chief to instruct police officers to stop brown people on bullshit—not by far—but he was the only guy so brazenly racist and stupid that he would cop to it on national television. He was sued many times, and the state of Arizona had to dole out about $140 million to defend him. Arpaio was eventually brought up on contempt-of-court charges for doing what he said he would. He was convicted, sentenced, and promptly pardoned by President Donald Trump without serving a single day in jail for willfully violating Arizonans’ civil rights.
When the Light Turns from Red to Green
The town that issued Wilson’s red-light ticket is one of several on Long Island with its own police force and policies about reporting undocumented immigrants to ICE. Not surprisingly, this one’s policy is to run the names of everyone their officers stop through the National Crime Information Center, whether or not they were being detained committing a crime or running a red light. Feeding names to this system lets officers check a person’s criminal background at the federal level, which includes immigration violations. If these town officers encounter undocumented immigrants with prior deportation orders, it’s their policy to report them to ICE. Wilson wasn’t just paranoid when he paid for my whole morning to help him fight this traffic infraction. There was a very real chance this red-light ticket would turn into a one-way ticket away from the life he had built here.
I find my client’s name on the big board and then get on line to speak to the clerk. The young, white woman in front of me wears Coke bottle glasses, a non-ironically shabby, three-sizes-too-large T-shirt, and skin that hasn’t seen the sun in months. She brazenly regales the clerk about her legal troubles and weakness to substances with more zeal than I can muster cycling through my canned material on first dates. When she says her goodbyes and slinks off, the clerk’s eyes meet mine, and we exchange half chuckles and knowing glances as I step up and give my client’s name and calendar number. With one hand, she hunts for his file; with the other, she hands me a notice of appearance form, which I fill out while admitting that this is my first time dealing with a ticket at this courthouse. She promises to be gentle with me, smiles, winks and lets me know the town’s attorney is likely to let my client plead to a lesser violation that will not jeopardize his Maryland driver’s license.
Why does a guy from a Central American country with a blue-and-white flag who lives and works on Long Island have a license from Maryland? Because it was the first state on the eastern seaboard to offer full licenses to the undocumented. From doing depositions on Long Island for a decade, I know there are a lot of undocumented immigrants licensed to drive by the Great State of Maryland. New York entertained granting licenses to undocumented immigrants for decades, but the Independent Democratic Caucus and their turncoat centrist Democrats handed control of the State Senate to Republicans for the greater part of the past decade in exchange for pork barrel spending and appointments. The State Senate then never took up Green Light legislation and robbed New York of that opportunity—until this past year, when many members were unseated. Wilson can now be licensed in the Great State of New York and pay into its insurance pool.
If you read Party of Color’s first article, you already know that all too often, the real enemies are “moderates.” If you think the intransigence of the status quo team of conservatives and moderate Democrats doesn’t hurt you, think again. Before New York passed its law affording undocumented drivers licenses, they ended up driving without insurance. These workers who made the economy of Long Island run had to commute by car because Long Island is nearly impossible to navigate without one. What if they got into an accident? Many without coverage fled scenes, leaving seriously injured drivers and passengers without someone to pay for the devastating impact to their lives. In addition, New York State had no quality control over the kinds of people behind the wheel, because without a legal option to drive, undocumented drivers who were unskilled at driving did so with perceived impunity, justifying their act as one of desperation and defiance against an unjust system. By not providing undocumented immigrants a legal way to drive, we squandered the opportunity to get the undocumented community to buy into our driving culture; to legally receive appropriate instruction; and to submit to the rigors of our licensing procedure, which helps to protect all drivers.
Driving Them Out Matters
I step back through the doors and wave at Wilson, who emerges from under the shadow of a tree and heads toward me. No one is watching me. No one is watching him. At least for today, ICE didn’t ruin my day, and Wilson’s life. The worst-case scenario that played in my head over and over as I hurtled east on the Long Island Expressway does not come to pass. He walks in, pleads guilty, pays a fine, and goes on about his day.
Many undocumented immigrants’ days in court over the last two years didn’t end like Wilson’s. Many were seized by ICE and never saw the shores of Long Island again; that is, until U.S. District Judge Jed S. Rakoff of the Southern District of New York recently decided that civil immigration arrests in and around state courthouses made witnesses and parties fear coming to court and created “temporary chaos” that disrupted court operations, especially in a time of widespread turmoil resulting from the coronavirus pandemic. Judge Rakoff’s decision is not one of pity for the undocumented, but one whose motivation was to protect our most sacred of institutions, our holiest secular temples: the courts. Judge Rakoff knew that if everyone can’t use the courts, then all of us are less likely to be protected by them.
Hearing about this decision this summer reminded me of that hazy morning a year ago when I stood up on my first and hopefully last red-light case. I read Judge Rakoff’s words bursting with pride. Being a practitioner, it’s easy to be jaded and focus on all the times our courts get it wrong, but every now and then, especially where civil rights are concerned, the courts protect “We the People” named in our most sacred text when our elected officials have neither the will nor the courage to do what’s right by us.
For Wilson and other immigrants like him, this decision affords access to our courts with less fear of being pounced on by ICE agents—yet their lives and contributions to our country have never been in more danger. I have heard the hyperbole or callous ignorance of my fellow far-left progressives when they say there is no difference between Biden/Harris and Trump/Pence. For Wilson and other immigrants like him, a second-term Trump, a Trump unrestrained by needing to win an election, will be catastrophic. He will wage an unrelenting war on “sanctuary cities” and the states that have given undocumented immigrants some measure of dignity and forbearance. The threat of withholding federal funding for roads and police forces can be used to coerce states and municipalities to roll back Green Light laws and any other accommodations for undocumented immigrants, pushing them back into the shadows. A second-term Trump is likely to send federal troops into these sanctuary cities with guys like Joe Arpaio running mass-scale raids and deportations, throwing due process out the window.
As upset as you are about the Democratic standard-bearers not committing to universal healthcare or a true progressive tax code (or whatever your beef is with the Biden/Harris platform), don’t say there is no difference between Trump and “status quo” centrist Democrats. Wilson and immigrants like him would gladly take four more years of an uneasy truce than four more years of a stepped-up war against their existence.