A federal judge in San Francisco struck down a First Amendment lawsuit this week that argued Immigration and Customs Enforcement agents detained a 22-year-old Bakersfield activist and farmworker as a way to retaliate against him.
Jose Bello, who is also a student at Bakersfield College, was arrested by ICE on May 15 two days after he recited an “impassioned” poem criticizing ICE during a public forum held by the Kern County Board of Supervisors, according to a lawsuit filed by the ACLU Southern California through the Northern District of California court.
“The close succession of these two events strongly indicates that ICE acted in retaliation against Mr. Bello for his speech expressing views against the agency’s actions,” the lawsuit filed on June 21 said.
The lawsuit asked that Bello, who is detained at Mesa Verde Detention Facility in Bakersfield, be released or that his bail be reduced.
The ACLU argued Bello’s arrest and detention was unconstitutional retaliation that violated his freedom of speech, court documents said, and the $50,000 bail set was retaliatory because it didn’t take his circumstances and financial situation into account.
“If left unaddressed, ICE’s actions will chill immigrant speakers from sharing criticisms of the agency at the very same time that its escalating aggression and increasing use of detention are at the center of public debate,” the lawsuit states.
Judge Sallie Kim rejected the argument Tuesday because ICE had a “reasonable” justification to re-arrest and detain Bello, according to the nine-page decision. She added that ICE is not required to show probable cause to re-arrest an immigrant and the intent the officer had is “irrelevant and does not provide a basis for invalidating the arrest.”
“Here, there is no dispute that, absent the retaliatory motive, ICE had an objectively reasonable legal justification to re-arrest Petitioner [Bello] – even simply for his arrest for DUI,” the decision said. “And there is no dispute that ICE has an objectively reasonable legal justification to re-arrest an immigrant already on bond who then is convicted of misdemeanor DUI.”
In May 2018, Bello was arrested and put into removal proceedings. Less than five months after he was released from detention, Bello was arrested for a DUI. In April, he was convicted and sentenced to five days in jail.
DUI convictions are “one of the most common” reasons ICE arrests people, the decision said.
Although the court agreed ICE’s timing to re-arrest Bello was “highly suggestive of retaliatory intent” the argument didn’t prove that ICE wouldn't have arrested him had he not read his poem.
“Had Petitioner not been arrested for DUI, this would be a different case, but such facts are not before this Court,” the decision said.
Jordan Wells, an ACLU attorney representing Bello, said he plans to appeal Judge Sallie Kim’s decision.
“The key here is that lots of people are in removal proceedings, but ICE can’t choose to lock up the ones that criticize the agency or call for political change,” Wells said in an email to Valley Public Radio.
Two days before Bello was arrested, he read his poem titled “Dear America” during a TRUTH Act forum, which is a yearly public meeting to review local dealings with ICE. A city or county government is required to have this forum under the Transparent Review of Unjust Transfers and Holds Act.
“Our administration has failed,” the beginning of the poem read. “They passed laws against our people, took away our rights and our freedom, and still expect to be hailed?”
“Dear America, do not consider this a threat,” another part of the poem said. “Our intentions are to continue to make America great. It’s time to begin standing up for what’s right. Criminalizing children, separating families. Our national security, does this make it alright? No. It doesn’t and it won’t.”
Bello has been a vocal critic of detention practices and ICE enforcement, according to the lawsuit. During the Kern County Board of Supervisors TRUTH Act forum last year, Bello also spoke out against the injustices he experienced while being detained at Mesa Verde.
“I admire Jose,” said his girlfriend Edith Mata. “He’s a very strong person. He inspires many especially because of all the things he's gone through and he’s still a happy person.”
Mata, who’s also a Bakersfield College student, and Bello have done a lot of activism work together. She said Bello started the Youth Empowering Success club at Bakersfield College.
“The club was barely going to start rolling and then he got detained,” Mata said.
Bello was also going to have a Know Your Rights workshop for farmworkers that was set to happen the week he got detained, Mata said. He also headed a fundraiser for the migrant caravans, she said.
“He’s missed by mentors and professors,” Mata said.
Mata said she spoke with Bello recently at Mesa Verde. Although he's depressed to hear the judge’s decision, she said, “he’s made it clear he’s going to keep fighting because he doesn't want ICE to do this to other activists.”
Bello came to the U.S in 2000 when he was 3 years old. As an adult, he’s been “excelling as a student popular with faculty members at Bakersfield College, and engaging extensively with his community,” the lawsuit said.
Bello is also the primary caretaker of his 1-year-old son, according to the lawsuit, and shares custody with his son's mother.
"A dehumanizing experience"
On the morning of May 15, when ICE agents detained Bello outside his home, the lawsuit claims agents interrogated him after cuffing him and putting him in an unmarked white car. Bello remained silent.
Before arriving at the ICE processing center, ICE agents stopped the car in an alley and began questioning Bello again, “demanding” he identify the other people he lived with, according to the lawsuit. Bello refused to answer and the officer became “agitated.”
“The officer threatened Mr. Bello by stating that if anything bad were to happen to Mr. Bello’s family, it would be Mr. Bello’s fault unless he started cooperating by answering the officer’s questions,” court documents say. “The officer told Mr. Bello, ‘We know who you are and what you’re all about.”
Bello was kept in a holding cell with his hands cuffed behind his back for hours, the documents said, and officers ignored his pleas to use the restroom. Eventually, he wet himself.
“Mr. Bello remained in soiled clothing for hours—a dehumanizing experience obviously meant to humiliate him,” the lawsuit said.
After an officer told Bello his bond was set at $50,000, the lawsuit said, “The arresting officer mocked him, stating ‘We’ll see if you can get your friends to raise the bond money again.’” The last time Bello was detained his bond was set at $10,000 and various community groups raised money to make bail.
“A bond amount this high is highly unusual and would be unaffordable for most immigrant detainees; far more commonly, bonds are set at $20,000 or less,” the lawsuit said.
Bello’s detention comes at a time when ICE is increasingly targeting immigrant activists following high-profile advocacy, according to the lawsuit.
“They (ICE) have arrested activists immediately following press appearances and news conferences,” according to the court documents. “They have detained spokespeople and directors of immigration advocacy organizations. They have surveilled the organizations’ headquarters and targeted their members.”