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Spokane, Washington  Est. May 19, 1883
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Legal fight erupts after five from India caught entering U.S. to avoid Trump immigration bans

UPDATED: Tue., May 23, 2017

Agent Joe McCraw (lead horse), Captain Gary Roman (center), and agent Allen Foraker of the U.S. Border Patrol conduct a backcountry horse patrol on Owl Mountain less than a mile from the Canadian border on Monday June 5, 2006. (Jed Conklin / The Spokesman-Review)
Agent Joe McCraw (lead horse), Captain Gary Roman (center), and agent Allen Foraker of the U.S. Border Patrol conduct a backcountry horse patrol on Owl Mountain less than a mile from the Canadian border on Monday June 5, 2006. (Jed Conklin / The Spokesman-Review)

Five Indian nationals trudged through knee-deep snow last February and illegally crossed the Canadian border north of Oroville, Washington, to enter the United States because they feared proposed travel bans proposed by President Donald Trump would keep them from pursuing their dreams.

The three women and two men were caught within minutes by U.S. Customs and Border Protection agents. What should have been a simple misdemeanor conviction and deportation has turned into a legal fight between separate branches of government and the attorneys trying to stop the deportations.

“It is our understanding that they would be tortured, potentially raped and put into indentured servitude” if they are returned India, defense attorney Nic Vieth said. “That’s what made this case out of the ordinary. Because of those concerns, that’s what raised everybody’s awareness.”

Vieth represents Hetal Barot, who is married to Sachin Barot. Also arrested were Alka Patel, a woman represented by attorney Steve Hormel; and two men, Bhavesh Patel and Darshan Patel. All hail from Gujarat, which is India’s westernmost state. None speak English.

Vieth said they had contacts in the United States and had planned to stay here to live and work. However, when Trump proposed banning some immigrants from coming into the country, it accelerated their plans.

“It’s my understanding that they were told if they don’t get in now that they will never come in because of … Trump’s immigration policies,” Vieth said. “Whether that’s right or wrong, that was their sense of urgency.”

The Indians then paid what is believed to be $100,000, which was mostly borrowed through loan sharks, to travel to Canada and then have someone meet them at the border north of Oroville. They were arrested moments after they stepped onto American soil.

All the defendants are Hindus and were unable to communicate with staff in the Spokane County Jail, where they were transferred after their arrest, Vieth said.

“They were being fed bologna sandwiches and they are vegans,” Vieth said. “The husband and wife haven’t seen each other. They were in separate pods. They couldn’t communicate. It was painful.”

Thus began the legal case that came to a head last week after the Indian nationals pleaded guilty to a single misdemeanor count of entering the country illegally.

Defense attorneys asked U.S. Magistrate Judge John Rodgers to sentence the group to five years probation so that they could stay in Spokane and seek asylum, Vieth said.

Rodgers ruled this month that he did not have the discretion to order probation, which would have kept the case within the purview of the courts. Instead, Rodgers sentenced the five to time already served in custody and ordered them released.

After defense attorneys appealed Rodgers’ decision, the judge ordered that the five remain in the Eastern District of Washington pending that appeal.

Based on that ruling, the group of attorneys went that same day to the Spokane County Jail to get their clients. But jail officials informed the attorneys that they would not release the five based on an agreement with federal border protection agents.

Then that night, federal agents moved the Indian nationals from the jail. They eventually ended up in the Federal Detention Center SeaTac, near Sea-Tac Airport.

Hormel, one of the defense attorneys, argued that moving the five created a conflict between a federal judge’s order and federal agents.

“The whole issue relates to whether or not the order releasing the defendants takes precedent or can halt immigration officials from taking these folks into their custody,” Hormel said. “The government’s position is that a magistrate judge’s order can’t do that and our position is that it can.”

Acting U.S. Attorney Joe Harrington said his office doesn’t have a comment other than to say that Rodgers’ release order has been appealed and has been assigned to be heard by U.S. District Judge Thomas Rice.

In court filings, government attorneys argued that the reach of the judicial branch ended as soon as Rodgers sentenced the Indian nationals for the misdemeanor. At that point, the executive branch and immigration officials correctly began the proceedings to determine their status.

“Accordingly, the United States submits that the Magistrate Court lacked the authority to enter the order releasing Defendants pending appeal and it should be vacated or revoked (retroactively) as moot,” wrote Assistant U.S. Attorney David Herzog. “Further, to the extent that the Magistrate Court’s order that the defendants remain in the Eastern District could be interpreted to enjoin the Department of Homeland Security from executing the pending removal orders in any way, the order is in violation of law, as the United States has consistently argued.”

Deciding which branch of government holds sway may set up the first legal fight of its kind, Vieth said. The Indian nationals will remain in federal custody until the legal issues are resolved.

The defense attorneys expect to file motions “to determine whether or not immigration officials violated the court’s order and what sanctions should be made against that agency,” he said. “It’s quite an interesting and goofy case.”

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