Suppression Motions in Immigration Court: Third Circuit case law

On September 13, 2012, the Third Circuit issued a precedential decision granting the appeal by the NYU Law School immigration clinic in Oliva-Ramos v. Holder, No. 10-3849 (3d Cir. Sept. 13, 2012).  The Third Circuit rejected the rulings by the IJ and BIA along with the arguments by OIL lawyers regarding the viability of suppression motions in immigration court.

As set forth by eight out of nine justices in INS v. Lopez-Mendoza, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), evidence should be suppressed if there is an egregious violation of the Fourth Amendment, if the evidence is unreliable, or if illegal searches were part of widespread violations.

The Third Circuit ruled that an illegal act is an egregious Fourth Amendment violation if either (a) it was a constitutional violation that was fundamentally unfair or (b) the violation (whether unfair or not) undermined the reliability of the evidence in dispute.  In addition, evidence should be suppressed upon showing that the illegal searches were widespread in nature.

For those litigating cases about raids in NJ, it is very interesting that the Third Circuit noted that it already received evidence and allegations of widespread illegal immigration raids in the case of Argueta v. ICE, 643 F.3d 60 (3d Cir. 2011).  There is also evidence suggesting widespread home raids based on memos for ICE Fugitive Operations Teams, ICE arrest statistics, and a Cardozo Law School clinic's report titled Constitution on ICE (2009).  Lawyers and scholars have been compiling notes on ways to prove that illegal ICE raids are widespread in nature.

The decision also includes important points about seeking to terminate proceedings based on regulatory violations.  That's an additional argument to pursue separate from seeking to suppress illegally obtained evidence.

Congratulations to NYU Law School's clinic!  Also great work by DLA Piper, who filed an amicus brief on behalf of the ACLU, LatinoJustice PRLDEF, AALDEF, Cardozo Immigration Justice Clinic, and Catholic Charities of Newark!

Private Attorney Laptops (continued)

The ICE Public Advocate has announced that the new ICE policy to allow laptops (and air cards) into immigration courts within detention centers is being expanded.  It will now include smartphones, tablets, or similar devices (not just laptops).  The rest of the policy is unchanged -- that lawyers must obtain permission, additional rules appear in the forms that are not yet available, and that lawyers must ask for permission every single time they want to bring the equipment into court.

Private Attorney Laptops And The Elizabeth Immigration Court

For a few years, ICE counsel in the immigration court at the Elizabeth Detention Center have enjoyed and exploited the unfair advantage of using laptops in court even though lawyers representing immigrants have not been allowed to use their laptops.

On September 12, 2012, the ICE Public Advocate announced that ICE will allow private attorneys or accredited representatives appearing before an immigration judge on behalf of detainees to bring a laptop into the immigration courtroom that is located in a detention center.  This should mean that ICE will set up a method to allow immigration lawyers to bring in laptops (with air cards) to the immigration court in the Elizabeth Detention Center.

The announcement says the method to obtain approval will not cover any iPads, iPods, smartphones, Blackberries, or other electronic devices.  They also say additional rules appear in the request form that will ultimately be available from the field office covering the location of the courtroom.

There is no indication about how the immigration court system will make up for the years of unfairness when ICE lawyers brought in their laptops but immigration lawyers were not allowed to bring in similar equipment.