Shades of blood-spattered gray

San Diego civil rights and immigrant rights groups have 297 days to find Mexicans who were picked up in the U.S. and persuaded to sign "voluntary return" forms. The process waived their rights to due process and allowed the feds to push them back into Mexico.

The 300-day countdown clock began ticking on Thursday, February 26, when a federal court settlement of a class action brought by the American Civil Liberties Union and a consortium of Southern California immigrant rights groups became official.

As part of the settlement, the government agreed to pay $700,000 in attorney fees — a good deal, according to U.S. district judge John Kronstadt, who noted that the lawyers could have reasonably asked for $1 million.

According to the suit, Immigration and Customs Enforcement and the U.S. Border Patrol persuaded approximately 100,000 people in Southern California to agree to be expelled between June 2009 and August 2014, when the government agreed to change the practice.

These were not deportations, which is a formal legal process. In order to be “offered” voluntary return, the individual had to have no criminal record. By signing the form, people agreed to be expelled and to go up to ten years without trying to return to the U.S. — which made getting a visa difficult and created the potential for criminal charges if they were caught trying to enter illegally.

In the lawsuit, ACLU lawyers said that people were often tricked or coerced into signing the forms. A mentally retarded 28-year-old woman picked up by the Border Patrol at an Escondido bus stop, for example, was pushed through the gate; as was a man who was pulled over for talking on his cell phone while driving and then handed over to the Border Patrol — though, according to court documents, he is married to a U.S. citizen and has two American children.

"This practice decimated families all over Southern California," said Anna Castro, a spokeswoman for the ACLU of San Diego and Imperial Counties. For its part, ICE denies that people were tricked or coerced into self-expulsion.

"In an effort to address the issues raised in this litigation, both agencies have agreed to supplement their existing procedures to ensure that foreign nationals fully comprehend the potential consequences of returning voluntarily to Mexico,” according to a written statement from ICE.

The Border Patrol has mostly discontinued voluntary returns. Ricardo Favela, spokesman for AllianceSD, a local immigrants’ rights group, points to perhaps the most infamous “voluntary return”: Anastasio Hernández Rojas, who was just a few feet from the border gate when he was tasered five times and his heart stopped in 2010. He was revived through CPR but never regained consciousness and died in a hospital less than a week later, according to the medical examiner's report in the lawsuit his widow and five children have filed.

According to court documents in the case, Hernández Rojas had asked for medical treatment and said he wanted to go before an immigration judge. But his requests allegedly were ignored, and he was driven to the gate where “voluntary returns” were sent to Mexico. According to defense accounts, Hernández Rojas then fought with a group of ICE and Border Patrol agents before he was restrained and tasered by a U.S. Customs officer — captured on cell-phone video by onlookers.

"He knew that he had the right to see a judge and have due process and it was taken as, ‘You will not speak back to us,’” Favela said. "It was the worst abuse of many abuses."

The 11 people named as plaintiffs in the class-action lawsuit have no criminal record. The court win means that people who qualify for review will be able to come to back to the U.S. until their cases are reviewed and they begin the process of applying to stay.

Not all of the people who were expelled will be able to have their cases reviewed, Castro said. She estimated that hundreds to several thousand people will be able to have their expulsions reviewed and will qualify to be allowed to stay in the U.S.

"Our Constitution guarantees that the government cannot take away your liberty — including ripping you away from your family — without affording you due process first, which for immigrants is the process of going to court before a neutral immigration judge," ACLU senior staff attorney Bardis Vakili said. "If the government can just trick, force, or coerce people into giving up their rights, the entire system fails us all as Americans and as human beings. Without due process, there is no reason for any of us to believe in the rule of law."