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CALIFORNIA AND THE WEST

U.S. Agents Posed Suspect With Humiliating Sign, Lawyers Say

Immigrants: Border Patrol says it will investigate circumstances of the booking of alleged smuggler.

May 21, 2000|KEN ELLINGWOOD | TIMES STAFF WRITER

SAN DIEGO — The booking photo is routine except for what the suspect, an accused immigrant smuggler, is holding. Propped below his face is a narrow sign proclaiming "I Support Our Border Patrol."

The suspect, Jesus Ibarra Chavez, said he was forced to hold the sign and then mocked by Border Patrol agents after his Feb. 27 arrest on suspicion of driving a truck loaded with illegal immigrants through Imperial County.

Defense lawyers are seeking to have a federal smuggling indictment dropped on grounds that the arresting agent violated Ibarra's civil rights by making him pose in a humiliating fashion. The action amounts to "outrageous governmental misconduct" and fits a wider pattern of abuse by U.S. border agents, the lawyers contend in a motion filed in U.S. District Court in San Diego. The motion is to be heard June 12.

"Back in the '50s and '60s, blacks, when they were being arrested, would have to hold up a sign saying, 'I Support Segregation,' " said Shaun Khojayan, who is defending Ibarra. "This is the equivalent. . . . It's not right."

The case is a potential embarrassment for the U.S. Border Patrol, which in recent years has claimed substantial gains in preventing rights abuses through better agent training and improved complaint-reporting procedures.

An agency spokesman in El Centro, Calif., said the incident is being investigated by independent federal auditors. He insisted that posing arrestees with signs is "not a practice" of the Border Patrol.

"We're not going to tolerate things like this," said the spokesman, Manuel Figueroa.

A copy of the booking photo was provided to federal prosecutors and to defense attorneys. A photocopy was obtained by The Times.

The prosecutor, Assistant U.S. Atty. Audra Ibarra, declined to comment on the defense motion or the photograph. Authorities have declared prosecution of immigrant smugglers a top priority, branding them as heartless profiteers.

Law professor Robert Fellmeth said forcing Ibarra to pose may have violated his rights. But Fellmeth said that is unlikely to move a judge to dismiss the charges because the action was unrelated to Ibarra's arrest or the evidence against him. Dismissals typically result from improper arrest or illegally acquired evidence.

Ibarra, 23, has pleaded not guilty to charges of smuggling for financial gain, attempted smuggling and transportation of illegal immigrants.

He was arrested after a Border Patrol pilot overhead spotted a pickup truck being loaded with suspected illegal immigrants, according to the Border Patrol account. Ibarra, snared west of El Centro by an agent on the ground after a short foot chase, said he had been asked to drive the immigrants to Brawley, according to the report.

Ibarra said in a sworn statement that an arresting agent insisted he hold up the sign, while being processed at the Border Patrol's station in Calexico. Ibarra--who has a limited understanding of English--said he initially resisted but complied after the agent, identified in court documents as Jason Caffey, ordered him to do so. He said Caffey and a second agent "said the picture was 'beautiful,' " laughed at him and made him feel humiliated.

Two of the migrants who were also detained charge that they were punched and kicked by a bearded agent. Questioned during a deposition attended by Caffey, the immigrants said they could not identify him as the agent who struck them because Caffey was cleanshaven. Caffey indicated that he had had a beard at the time of the incident.

A request for comment from Caffey was unanswered. Caffey, an agent for four years, testified during a court hearing last month that he had arrested Ibarra but did not see the photograph being taken. Photographs of immigrants and alleged smugglers are taken during booking and entered, along with electronic fingerprints and biographical information, into an Immigration and Naturalization Service computer database that helps authorities track repeat offenders.

Ibarra's attorneys said in the motion that the photo incident is one of several instances of border agent misconduct. The document did not elaborate, but lawyer Guadalupe Valencia said they were referring to two recent publicized cases.

In one, a Temecula-based agent pleaded guilty May 1 to obstructing justice by trying to cover up a traffic stop in San Diego County during which he used force and left a suspected smuggler injured. In the second, an Imperial County agent agreed to quit last year to avoid prosecution for allegedly using a pellet gun to shoot at a raft carrying three suspected illegal immigrants.

Ibarra's lawyers said they knew of no other cases involving photographs of Border Patrol arrestees. But Khojayan said the treatment of Ibarra undermines the government's case: "If the agent did this to him, why should we give credence to all the rest of it?"

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