Commentary: In battle against Bank of America, undocumented immigrant loses

The Sacramento BeeMarch 28, 2012 

In this case of David vs. Goliath, Goliath wins.

An undocumented immigrant from Mexico sues Bank of America after he's nearly deported when his bank manager turns him over to authorities.

Lawyers for Luis Martinez ask: Do you want your banker acting as a de facto immigration agent?

They file a complaint on Martinez's behalf in federal court alleging negligence, discrimination and other civil rights offenses by BofA.

But on Wednesday, a federal judge in San Francisco, Charles E. Breyer, brought a stop to it all, granting Bank of America's motion to dismiss Martinez's complaint.

The bank's lawyers persuaded the judge to throw out the case based on a California statute that allows a defendant to make a motion to dismiss a suit if it is based on activity protected by the Constitution.

"Reporting suspected criminal activity to the police is a protected activity," Breyer wrote.

And what criminal activity was that? The 34-year-old Martinez was never prosecuted for any crimes by Yuba County authorities. He was turned over to federal immigration authorities, who began deportation proceedings on him – but that never should have happened.

Just months after Martinez's arrest, John Morton, director of U.S. Immigration and Customs Enforcement, instructed his agency to consider a range of factors when exercising prosecutorial discretion. They include whether the immigrant has lived in the United States for years, avoided trouble with the law, avoided previous deportations and has a child who is a U.S. citizen.

Martinez qualifies on all counts. The federal goal is to prosecute the rapist and the drug dealer over the gardener and the cook.

It didn't matter in Martinez's case.

BofA invoked California's anti-SLAPP statute – SLAPP being an acronym for Strategic Lawsuit Against Public Participation. Individuals typically use the statute to dismiss cases that threaten their First Amendment rights.

In this case, lawyers for the biggest bank in America won on a free speech defense.

The outcome illustrates what is wrong with our immigration laws. States like California have a strong need for cheap labor in industries such as agriculture, hospitality and gardening services, the very types of jobs Martinez always did.

But there is no way for law-abiding immigrants such as Martinez to establish legal residency in the United States in our "deport them all" political culture.

Martinez had been a client of BofA for 14 years. He had a mortgage and two other accounts with the bank and had lived a quiet, hardworking life as a cook and gardener in Sacramento.

His incarceration destroyed his finances and subjected his family to the foreclosure of their home. When he was arrested in February 2011 at a BofA branch in Marysville, he said, his 6-year-old daughter watched in horror as her father was handcuffed. He was soon shipped to a federal jail in New Mexico. The soft-spoken Martinez still weeps at the memory of his ordeal.

Through his hard work here, he had bought a house and said he had taxes taken out of his checks for years. This is a point that should be noted for those who feel guys like Martinez are ripping off the system.

And, despite the national furor over immigration, banks blatantly have catered to immigrant customers.

If you're an immigrant, you don't have to show U.S. identification to open an account. You can use ID from your own country.

"Reports have stated that in some cases, illegal immigrants are able to sign up for the bank's products and services. These reports are true," Ken Lewis, BofA's former chief executive officer, said in a 2007 Wall Street Journal commentary.


It's big business. Fox News reported that more than $21 billion was sent from the United States to Mexico in 2010.

But in his ruling, Breyer wrote: "Martinez has not alleged that the Bank made any representations specifically to him about the availability of banking services to undocumented immigrants."

Yeah, your honor. Banks, employers, politicians and others don't advertise that they do business with the undocumented.

They just do it.

Meanwhile, Martinez was actually guileless enough to use the same fake Social Security card he had used for years – the one in his name. The U.S. Supreme Court and other courts have ruled recently that such use of Social Security cards is not a crime or identity theft.

In fact, the act of being in the United States without documentation is, in many instances, a civil matter, not a criminal offense.

Yet Martinez's life was destroyed anyway. Unmoved, Breyer wrote: "It is obvious from the complaint that the Marysville Police arrested him for something."

Yeah, they arrested Martinez because the bank called the cops on him.

He's undocumented, which means everyone makes money off you and then you have no legal recourse when they take everything away.

Hopefully, BofA won't stick Martinez with legal fees, too.

McClatchy Washington Bureau is pleased to provide this opportunity to share information, experiences and observations about what's in the news. Some of the comments may be reprinted elsewhere in the site or in the newspaper. We encourage lively, open debate on the issues of the day, and ask that you refrain from profanity, hate speech, personal comments and remarks that are off point. Thank you for taking the time to offer your thoughts.

Commenting FAQs | Terms of Service