ICE's Use Of Data Brokers Raises Suppression Questions

On Thursday, June 22, 2006, Elaine N. Lammert, deputy general counsel for the FBI's investigative law branch, told Congress that "There are compelling reasons for the government to believe that these operations [meaning data brokers] violate federal law." Therefore, there's an argument that using data brokers may violate the 4th Amendment by obtaining and using evidence that there are compelling reasons to believe were illegally obtained.

Paul Kilcoyne, a senior official with Immigration and Customs Enforcement, said that at least four agents in Denver asked data brokers for information, but ICE's internal investigation concluded that they had not acted improperly.

Filing a motion to suppress and asking the government for any documents about whether they used data brokers or any third-party sources for data would allow an independent court the opportunity to review whether ICE is acting properly. There is a strong argument that the US Constitution should allow people to have a court review ICE's actions, not simply to trust ICE to investigate itself. See Ted Bridis's article titled "FBI: Data Brokers Probably Act Illegally," June 22, 2006, Associated Press.

How To Avoid Deportation In Immigration Court

I see the topic of avoiding deportation in a removal proceeding in immigration court is extremely complex because there are so many unrelated rules and dozens of limited opportunities to save someone from deportation. But the rules and opportunities are so unrelated that it is like going down a long list of random ideas. In some ways, this resembles compiling a tax return -- you can reduce your taxes if you qualify for any of a dozen different tax provisions, but the provisions are somewhat arbitrary and unrelated.

For example, (and this is just a provisional), ways to fight a removal case can include: Notice To Appear has errors, the government did not send the Notice To Appear the right way, the government's allegations can't be proven, the basis for deportation is not supported by the facts, the basis for deportation is not permitted under the law, the government obtained evidence illegally, the immigrant is now a US citizen, someone can get a green card for the immigrant, 212(c) waiver, 212(h) waiver, fraud waiver, cancellation of removal, asylum, withholding of removal, Convention Against Torture, registry, TPS, late-TPS, domestic violence victim, human trafficking victim, crime victim, crime informant, abandoned juvenile, adoption, Fleuti doctrine, deferred action, change venue, consolidate with another pending case, FOIA request, subpoenas, apply for readmission, international law on rights of the child, rights under the state constitution.

Immigration Court Subpoenas Are Possible

Not only are subpoenas for documents possible, but if they are needed to obtain documents essential to the case, an immigration judge's refusal to issue the subpoena can be a way to overturn the decision. See, for example, Kaur v. INS, No. 99-70395 (9th Cir. Jan. 24, 2001)!

The key is to explain what you expect the document will show, why the document is essential to the case, and that there is no other way to obtain the document. One way a document can be essential is that it would be used to impeach the credibility of a key witness.

Motion To Suppress Should Cite AG Guidelines For Undercover Operations

A motion to suppress that challenges either ICE undercover operations or an ICE deceptive sting should cite the 1984 Attorney General Guidelines for Undercover Operations. Immigration authorities investigating deportation issues used to be called INS, which reported directly to the Attorney General. In 2003, INS stopped existing and investigators moved to the Department of Homeland Security, which does not report directly to the Attorney General. Nevertheless, DHS undercover officials are still bound by the 1984 AG guidelines. Therefore, it was wrong for the IJ to reject a motion to suppress without considering whether the 1984 AG guidelines were still in effect.

In the case, the motion to suppress argued that ICE cannot use evidence obtained during an undercover operation because immigration officials did not follow the procedures laid out in the Guidelines. The Seventh Circuit remanded the case "in light of the fact that the Attorney General Guidelines on INS Undercover Operations continue to govern DHS’s actions." The case is Pieniazek v. Gonzales, No. 05-3008 (7th Cir. June 5, 2006).

Aggravated Felony Analysis

Miscellaneous notes on aggravated felonies:

A crime can be considered an aggravated felony if it is a crime of violence. Circuit courts are split on whether an offensive touching can involve the use of force so that it can be considered a crime of violence. Four circuit courts have ruled it cannot be a crime of violence: Gonzalez-Garcia v. Gonzales, No. 04-60385 (5th Cir. Feb. 14, 2006); United States v. Arnold, 58 F.3d 1117, 1122 n. 4 (6th Cir. 1995); Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003); Singh v. Ashcroft, 386 F.3d 1228, 1234 (9th Cir. 2004). Two Circuits, on the other hand, have found that offensive physical contact does involve the “use of force.” See United States v. Nason, 269 F.3d. 10, 20 (1st Cir. 2001); United States v. Smith, 171 F.3d 617, 621 n.2 (8th Cir. 1999).

EOIR Might Have Suspended Criticized IJ

According to a Philadelphia Inquirer article published on June 2, 2006, Immigration Judge Donald V. Ferlise has taken an unexplained two-week absence (or, the article states, perhaps the leave of absence will continue indefinitely for now). The reporter's follow-up investigation suggests that perhaps Judge Ferlise is being investigated based on complaints about his performance as an immigration judge.

Feeding this speculation are repeatedly critical decisions by the Third Circuit while reviewing appeals of Judge Ferlise's decisions. In two extremely critical decisions in May 2006, the Third Circuit named Judge Ferlise and questioned what EOIR would do if an immigration judge repeatedly had cases of improper conduct against asylum-seekers.

According to the article, someone speaking on behalf of Judge Ferlise declined comment, so it is unclear whether the newspaper author's article is completely accurate and, of course, it might not convey Judge Ferlise's perspective on what's happening.

Can't Trust USCIS: H1-B Count Fiasco

More proof that people cannot trust announcements by USCIS: they botched the H1-B count. There are only a certain number of H1-B temporary work visas allowed each year, so many people watch USCIS's announcement of its count of how many have been used up. This helps people know how fast they need to get their application in before the numbers are all used.

Based on initial reports, it appears that USCIS officially announced how many applications it received toward the H1-B cap but the entire report was a sham because USCIS did not disclose that the numbers it was announcing excluded over 10,000 applications it had received but not yet gotten around to inputting.

Therefore, the USCIS announcements of the cap numbers were misleading and incorrect. Keep this in mind whenever you read anything that USCIS announces -- sometimes, their announcements are misleading and factually incorrect. This causes great difficulty and anxiety among those practicing immigration law.

Alleged Racial Profiling ICE Stops Bolster Motion To Suppress Theory

On May 31, 2006, civil rights lawyer Luis Carrillo in California held a press conference to demand a federal investigation into desert highway stops that Mr. Carrillo called a dragnet based on racial profiling where they stopped brown-skinned drivers but not light-skinned drivers. Over 600 people were detained along interstate highway 40 from May 19 to May 24.

If the racial profiling allegation is true, it would bolster the need to apply the Fourth Amendment exclusionary rule in immigration court proceedings -- the courts must stop what may be widespread, blatant violations of civil rights. The exclusionary rule for 4th Amendment violations should be applied if there is no apparent system for teaching and ensuring that ICE is respecting civil rights.