Contributed by Jeff Joseph, Senior Partner
The Byron Rogers Federal Building at 1961 Stout Street in downtown Denver houses numerous federal agencies including the immigration court. Every day, non-citizens, their family members, and their lawyers are ordered to come to court to attend their removal hearings. If they fail to show up, or even if they show up late, they can be ordered removed from the country in their absence.
When they come to the federal building, these individuals have to go through airport-like screening, remove metal objects and shoes, and go through a scanner before entering the immigration court. The legitimate purpose of this screening is to protect the public and the federal building from those who mean to do us harm.
On Wednesday, April 16, 2014, however, these traditional security measures kicked into hypermode. About a dozen large, uniformed, and well-armed men descended upon the Byron Rogers Federal Building. Their mission?—Operation Shield. If this sounds like something out of a Marvel Comic Book, think again. These men were not superheroes. They were Federal Protective Services officers.
Operation Shield is an operation of the Department of Homeland Security designed to protect federal buildings against acts of terrorism. Yet, these men were not responding to an actual threat of terrorism, nor even an implied act of terrorism. Instead, they were there to check for the identification of every individual entering the federal building. If individuals could not or would not present identification, these individuals had to subject themselves to criminal background checks in order to enter the building.
I know what you are thinking. Why is it unreasonable to request the identification of individuals entering a federal building? In the abstract, such a request seems reasonable. However, non-citizens in removal proceedings do not have the choice of whether or not they can enter the federal building. They are ordered to go to court and deported for failure to appear. Additionally, many (most) non-citizens do not have government issued identification because the REAL ID act passed by Congress in 2005 prevents states from issuing identification unless the applicant can demonstrate lawful status. Thus, if you are a non-citizen entering the federal building, you have no choice but to submit to a criminal background check in order to even attend your court ordered hearing.
Such a requirement is simply not fair. As a result, Jeff Joseph, Senior Partner of Joseph & Hall P.C., P.C. filed a lawsuit on behalf of the Colorado Chapter of the American Immigration Lawyers Association and its member lawyers and clients challenging Operation Shield and the unlawful practice of ordering people to appear in immigration court and yet denying them entry unless they subject themselves to background checks. On April 22, 2014 the Denver Post published an article, Denver Immigration Lawyers Sue For Access to Federal Court Building, regarding the federal lawsuit.
Still not convinced? Consider this as well. Immigration Courts, like many other federal agencies and operations are open to the public. In a free country, why should we have to present identification to access something that by law is open to the public? The lead plaintiff in the case, David Kolko, a prominent Denver immigration lawyer was in Washington D.C. the week before this incident to lobby for immigration reform. He visited the offices of the entire Colorado congressional delegation, the Supreme Court Building, and the Capitol. Not once was he asked for ID. Not even one time. Yet, despite the fact that he is an officer of the court who regularly appears before the immigration court in Denver, he is mandated to produce ID or agree to undergo a criminal background check?
Meanwhile, non-citizens who have no ID, can only access the justice system by voluntarily relinquishing their privacy to undergo an NCIC check to ascertain a criminal history. And how, exactly, does such a criminal background check make us any safer from terrorism than we were 5 minutes earlier before the check was done? There is simply no rational basis for the ID requirement in the first place. It inhibits the equal access to justice. No individual should be denied access to justice or intimidated because he or she tries to access a public court hearing.
On April 22, 2014, 6 days after the lawsuit was filed, Jeff Joseph, on behalf of the plaintiffs, settled the Temporary Restraining Order when Federal Protective Services agreed to immediately stop background checks and even ID requirements for anyone accessing immigration court. The remainder of the federal case is pending while a more reasonable means of addressing security issues can be negotiated.
A “SHIELD” is something that is supposed to protect us from danger, risk or an unpleasant experience. But a shield is also something that we can hide behind. Federal Protective Services cannot and should not be able to hide behind Operation Shield as an excuse to invade our privacy rights in a free country under the guise of protecting us from terrorism. It is simply not okay.
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