Wednesday, April 26, 2006

ICE Raids in New Jersey Being Rumored -- Truth Uncertain

There are some rumors of ICE (immigration and customs enforcement) raids in the past week in New Jersey, such as in Elizabeth, Kearney, Jersey City, Paterson, Passaic, Newark, Bound Brook, or Perth Amboy. It is important not to raise the alarm for unfounded rumors, because it is unclear whether ICE has conducted an unusually large number of raids or whether people are misinterpreting ordinary actions as something unusual. (It's possible ICE is doing the same number of raid pick-ups as usual.)

El Diario printed an article on this on April 26:

Regardless, it is always a good idea to remember that if any police officer of immigration official asks you about your immigration status, you can ask whether you are free to leave. If they say you are free to walk away, then you do not have to answer their questions and can walk away. This is probably a good piece of advice even for United States citizens -- if you don't have to say anything to a police officer or immigration official, why open your big mouth? If you slip up somehow in answering the questions, you could get into trouble when keeping quiet and walking away would have avoided the whole problem.

update: several journalists wrote stories suggesting that the rumors are untrue. In some instances, there was a good reason that people were worried -- ICE continues to do its usual number of raids and the town of Freehold apparently did a poorly-publicized emergency evacuation drill that scared many residents. So it is possible that the rumors of a dramatic increase in ICE raids is untrue.

Friday, April 21, 2006

Immigration Laws As Quasi-Criminal Laws

According to the New York Times, Michael Chertoff (Homeland Security Secretary) once again stressed that immigration laws will be utilized as an extension of the criminal laws. In this context, he talked about it in terms of cracking down on the hiring of undocumented workers. He said at a press conference on April 20, 2006: "We target those organizations, we use intelligence to define the scope of the organization, and then we use all of the tools we have — whether it's criminal enforcement or the immigration laws — to make sure we come down as hard as possible and break the back of those organizations" (italics added).

Using immigration laws as quasi-criminal laws bolsters the argument that the exclusionary rule for motions to suppress must be applied in immigration cases in the same way it applies in criminal cases. It also bolsters the argument that the right to appointed counsel (whether under 5th Amendment due process concerns or 6th Amendment right to counsel concerns) must also be granted in immigration cases just like it exists in criminal cases.

The New York Times article is "U.S. Crackdown Set Over Hiring of Immigrants" by Eric Lipton, New York Times, April 21, 2006.

Thursday, April 20, 2006

Additional Cases on Motion to Suppress in Immigration Court

Just some additional notes and cases on motions to suppress in immigration court:

Chun v. Gonzales, No. 04-60904, 2006 WL 14869 (5th Cir. 2006): the Fifth Circuit without analysis said even if evidence obtained through unlawful arrest, suppression not possible, citing Lopez-Mendoza but no analysis.

Leon-Hernandez v. Ashcroft, 123 Fed. Appx. 599 (5th Cir. 2005) (unpublished): motion to suppress denied because the border patrol agents did have the requisite reasonable suspicion to make an automobile stop.

Mosqueda-Araujo v. Gonzales, 135 Fed. Appx. 87 (9th Cir. 2005) (unpublished): motion to suppress loses where the respondent admitted alienage.

Miguel v. INS, 359 F.3d 408 (6th Cir. 2004): motion to suppress loses where the respondent admitted alienage.

Salgado-Diaz v. Ashcroft, 395 F.3d 1158 (9th Cir. 2005): motion to suppress will succeed to suppress post-deportation activity if respondent can prove the government violated his rights in deporting him in the first place. Based on equitable estoppel principles.

Mejorada v. Ashcroft, 103 Fed. Appx. 263 (9th Cir. 2004) (unpublished): motion to suppress loses where government had independent physical evidence of alienage.

Garcia-Recendiz v. INS, 68 Fed. Appx. 10 (9th Cir. 2003) (unpublished): motion to suppress denied because the respondent filed an affidavit of fact with her motion to suppress that mentioned she was born abroad. I guess do not file any affidavits of fact with motions to suppress that discuss alienage.

Saturday, April 15, 2006

Motion To Suppress Filed For Soccer-Playing Trespasser

According to the Westchester Journal News article on April 7, 2006 titled "Brewster Day Laborer's Deportation Case Delayed" by Marcela Rojas, attorneys filed a motion to suppress for a soccer-playing man that the local police decided to take unusual step to charge with the small misdemeanor of criminal trespass. The attorneys charge that county sheriff Donald Smith impermissibly tried to enforce immigration violations due solely to public pressure about day laborers.

Pace Law professor Vanessa Merton along with Pace Law students Chris Crane and Kevin Canberg point out that local police have no power to enforce federal immigration violations. None of the immigration violations are crimes.

The motion to suppress focuses on numerous violations of policies and procedures about how an interrogation can be conducted. For example, ICE is trying to use a statement where it is unclear whether the author even conducted the interview in Spanish. In many cases, it is valuable to check whether ICE and local police followed their procedures, because there often can be grounds to try to suppress evidence. Whether an immigration judge will actually suppress the evidence is another question, but it is always best to preserve the issue for appeal by raising it immediately. It is unclear when Judge Durling in Pennsylvania will rule on the motion.

It is also unclear whether the attorneys will raise the 4th Amendment and exclusion due to the violation of Constitutional rights, even if those acts do not rise to the level of being "egregious."

NYTimes Focuses On Dubious Local Police Enforcement Of Immigration Violations

In an April 14, 2006 article, the New York Times looked at how the "Path to Deportation Can Start With a Traffic Stop (an article by Paul Vitello):
While lawmakers in Washington debate whether to forgive illegal immigrants their trespasses, a small but increasing number of local and state law enforcement officials are taking it upon themselves to pursue deportation cases against people who are here illegally.
This raises the point that when local police call ICE to enforce mere civil immigration violations, the ripple effect on the community is that witnesses, informants, and victims will be less likely to talk to the local police to get the help and protection they deserve. We have already posted blog entries about the problems when local police turn in someone reporting a crime or turn in someone who helps them stop a crime.

For example, police chiefs in Kansas do not want to have the local police involved in enforcing civil immigration violations, as The Hutchinson News noted in an article by Sarah Kessinger titled Local Law Officers Prefer Feds Handle Immigration:
"I don't really want the police department to be involved in that kind of thing," [Dodge City Police Chief John Ball] said. "We deal with these people on a daily basis, and I don't want them to be afraid to deal with the police department." [Garden City Police Chief James Hawkins said,] "If someone is a victim of a crime, we don't really care if they're citizens or not. We just want to investigate it to the best of our ability. This (proposal) might hamper some of that because people might not be so forthcoming with information."
The NY Times article quoted Marianne Yang, director of the Immigrant Defense Project of the New York State Defenders Association, as pointing out the problem that immigrants are often given unusually higher bail levels if they are arrested, no matter how minor the crime.

That may have happened in Putnam County (NY), where eight men playing soccer were charged with the small misdemeanor of criminal trespass but hit with unusually high bail amounts (seven posted $1,000 bail and are now free but the eighth was unable to raise $3,000 for bail and has been in ICE detention ever since).

Friday, April 14, 2006

Can't Penalize Asylum-seekers For Lying To Escape Persecutors

The Second Circuit stressed in Lin v. Gonzales, No. 03-4989 (2d Cir. Apr. 12, 2006) that asylum-seekers cannot be punished by an immigration judge for lying to escape persecution when their lie is made just to escape the people who will immediately mistreat them. There is a theory that if someone uses one false document, it can raise questions about every other document the person submits. This theory (in Latin, falsus in uno, falsus in omnibus), though, has its limits, and the IJ incorrectly punished an asylum-seeker who while in China used a false sterilization certificate to avoid the persecution of Chinese authorities who insisted on sterilizing her under their harsh child planning policies.

The Second Circuit also noted that it is well-established that asylum-seekers should not be seen as automatically unreliable if they used fake travel documents in order to escape persecution and reach safe haven. Lies by asyum-seekers to escape immediate persecution must be viewed in their context, and not seen as automatically disqualifying their claims.

Friday, April 07, 2006

Senate's Debate on Immigration Reform Now Stalled

As of April 7, the Senate's ongoing debate on comprehensive immigration reform is now stalled. From comments late Thursday night, the leader of the Republican Party (Senator Frist) insisted on allowing dozens of time-consuming amendments, many of which are being proposed by senators who will vote against the proposal. The Democratic leader (Senator Reid) objected, saying that insisting on extended debate of twenty amendments was essentially a fillibuster by amendment because the time needed to debate them would essentially consume so much time that Congress would go into recess and the debate would die.

Republican McCain lamented that the failure to work together to pass a proposal was "a huge blow."

The most recent proposal is not even that favorable to undocumented immigrants -- rather than adopt the extremely harsh and narrow rules of the McCain-Kennedy proposal, it further restricts earned legalization by splitting the undocumented into three categories depending on whether immigrants have been in the United States more than five years, more than two years, or less than two years.

If the immigration agency applied the proposal as strictly, legalistically, and harshly as it applies the current complex laws, there will be hundreds of harsh results if the watered-down proposal became law.

Even if the Senate passed a proposal, it would have to be passed by the House and there is even more danger that the House would insist on watering down any Senate proposal even more.

The McCain-Kennedy proposal was an overly harsh and narrow earned legalization program. Republicans are busy trying to gut that proposal by watering it down in the Senate while leaving open the danger of again watering it down when the House insists on more changes.