That was the rule yesterday.

I'm sitting in an airport writing this. People usually have aha moments in the bathroom; I have them in airports. I find myself in airports more than I would like to these days, but the one nice things about it is that I have some down time to think.

As I was going through airport security this morning, I couldn't help but reflect that in the aftermath of 9/11, the United States went into knee jerk reaction mode. The 3 oz toothpaste tube sprang into being and now you have to show up to the airport the night before so you have time to go through security. Why even bother getting dressed at home if you are on the way to the airport; just bring your clothes with you and put them on after you clear the security scanner that gives a naked picture of you to some nondescript TSA agent hiding somewhere to protect your privacy. I don't envy that person's job.

These are the changes most people see. What most ordinary people don't see, are the unchecked power the government gets and the erosion of due process rights that comes with every security motivated paranoia. I'm not going to rehash what has been dealt with ad nauseam by the media in the last decade. My focus is more specific to the enforcement arm of the Department of Homeland Security (DHS), the Immigration and Customs Enforcement (ICE). As people starting taking shoes off at the airport and leaving nail clippers and tweezers at home, DHS was born and was given more money and power than it knew what to do with. ICE got the prized label of "law enforcement" and with it a lot of perks and unchecked power in the name of national security.

Don't get me wrong, I am thankful for the men and women who put their lives on the line to protect us. However any humongous bureaucracy given unchecked power is bound to have some abuse of it.

Immigration violations are considered civil violations therefore foreign nationals who break the immigration laws do not have a lot of the due process rights that defendants have in criminal proceedings. This is so even though many immigrants are detained in ICE run jails for considerable periods of time, sometimes serving much more time than they did for a criminal violation that may have landed them there. In addition, Congress has taken away a lot of the rights of foreign nationals to seek redress in the courts when they are being wronged.

With this unchecked power that the agency is bestowed, a few bad apples who take advantage of it are inevitable. I live and practice law in the Albuquerque and Santa Fe, NM region. In the area where I practice, until recently, ICE got away with a lot.

My main bone to pick is the release of detained foreign nationals on bail. Most of my clients who come under the ICE radar are those who have been arrested for a criminal violation; a substantial majority of them are those arrested for failure to pay traffic tickets or driving while intoxicated. Most of these clients are generally granted small bonds by the state judges. However, when ICE takes them into custody, ICE needs to set its own bond before the foreign national can go home for dinner. So, as dutiful attorneys that we are, we go and ask for bond to be set for our clients. For a while we were being told ICE in Albuquerque had a "no-bond" policy. We were being told that despite the fact that we would walk in there with written guidance from ICE headquarters in Washington which clearly stated that there was no such thing as a "no-bond" policy. The answer to that would be something along the lines of "that was yesterday's rule, this is the rule today." Our clients would then be sent to a detention center about 4 hours away awaiting a bond hearing before an immigration judge that, at one point, was taking 7-8 weeks to schedule. Don't even get me started about bond hearings before some immigration judges. That's a whole other blog.

Making up rules on the fly used to be pretty common in my area, "your client has an arrest for simple possession of marijuana from 15 years ago? Sorry we have a no-bond policy for drug related offenses... You say he has not been convicted yet, well you know he did it so we don't want a dangerous criminal on our streets.... You want to know when this policy was set? You don't need to know that; national security is at stake so we don't have to give an account to you, this is the rule today." I could go on and on about stories like these.

This is not the case with every official at the local office. I have had many fair dealings with the top official at that office, but if he wasn't around, we had to deal with someone in middle management whose attitude was that my clients were the scum of the earth and I was even worse for representing them.

Recently there has been a change in leadership at the El Paso Field Office which oversees all of New Mexico. We had a chance to meet the new Director and I am very encouraged by his integrity and commitment to be fair which is a major change from the previous leadership. When we brought all these issues before him he expressed concern and vowed to make changes and opened a line of communication. Nevertheless, the shenanigans of a few bad mid-management apples continue. That's the problem with big bureaucracies, it takes quite a bit of time for the new era of change to trickle down and seep in to those who enjoy flaunting that unchecked power.