Sunday, December 17, 2006

Motion to Suppress in Immigration Court

Here are some tips on filing motions to suppress in immigration court.

First, deny the allegations.
Second, urge the immigration judge to require document production or to issue subpoenas to help you gather evidence.
Third, prepare a case that might win under the court's overly restrictive view of the exclusionary rule (by trying to prove egregious conduct).
Fourth, prepare to argue that the court should interpret Lopez-Mendoza correctly and analyze whether the exclusionary rule should apply for all 4th Amendment violations (and present proof of a 4th Amendment violation).

This fourth point can be extremely useful if the IJ and BIA ignore your argument. If they fail to make any ruling, then a further appeal has a stronger likelihood of winning based simply on procedural grounds -- if the BIA ignores the requirement in Lopez-Mendoza to weigh a number of factors.

Update: there is an appeal pending before the Third Circuit that raises the exclusionary rule in immigration court!

The immigration service frequently argues that the exclusionary rule of the Fourth Amendment does not apply in immigration court except if the conduct of the government was particularly egregious. This is an overly narrow narrow interpretation of the Lopez-Mendoza decision by the Supreme Court in 1984. An expansive reading of that 1984 decision is that courts must weigh the positive and negative factors in each case to determine whether to apply the exclusionary rule for ordinary Fourth Amendment violations. Under this expansive reading, the Lopez-Mendoza decision simply ruled that for 1984, ordinary Fourth Amendment violations during mass field arrests by INS officers do not trigger the exclusionary rule.

Practice Tip: Make sure that if you make a motion to suppress, you do not concede all of the government's factual allegations. Doing so might make your motion to suppress irrelevant because the factual concessions may be enough to find the immigrant deportable. For example, the Sixth Circuit held that the suppression issue was moot because the immigrant conceded the necessary facts in Miguel v. INS, No. 02-3758 (6th Cir. Feb. 26, 2004).
During a hearing, the IJ specifically asked Miguel, through an interpreter, how she answered the factual allegations contained in the NTA. The NTA indicated that she is not a citizen or national of the United States; that she is a native and citizen of Guatemala; and that she was not admitted or paroled into the United States. Miguel then admitted these factual allegations through counsel. The admissions have not been challenged on appeal.
The Eighth Circuit ruled in United States v. Alvarez-Gonzalez, No. 02-3215 (8th Cir. Feb. 26, 2003) that the exclusionary rule applies in a criminal proceeding where an immigration official asks immigration questions without any basis while the immigrant is in custody. The court however upheld the partial denial of the suppression motion because discovery would have been inevitable.

The exclusionary rule can apply in any criminal proceedings for illegal entry to exclude not only the evidence improperly obtained, but also any later statements made by the immigrant as the fruit of the poisonous tree. For example, see United States v. Guevara-Martinez, No. 8:00CR 163, (D. Neb. Oct. 2000).

There also is an argument that the court should suppress the identity of the person stopped if the stop or interrogation was unconstitutional. See the discussion in Perkins v. State, No, 98-1424 (Fla. Dist. Ct. App. May 12, 1999).

Practice Tip:Go through the factors listed by the Supreme Court in the Lopez-Mendoza case and explain why they weigh in favor of applying the exclusionary rule in your particular case. Also, analyze whether the applicable state constitution (especially if in NJ the favorable New Jersey Constitution) have analogous provisions that may provide greater protections than the US Constitution. Contact us if you want samples of this analysis. Also, preserve the issue of whether the exclusionary rule should apply because your case does not involve a mass field arrest or because immigration law has become quasi-criminal in its enforcement.

Sometimes, the government will argue that a statement that the body of someone arrested cannot be suppressed should be broadly interpreted to mean nothing can be suppressed if it is based on the person's identity. This is probably an incorrect expansion of the Supreme Court's vague language in Lopez-Mendoza. For example, the Tenth Circuit in US v. Olivares-Rangel, No. 04-2194 (10t Cir. Aug. 11, 2006) explained that the Supreme Court's language merely means that the defendant cannot challenge jurisdiction over the case (power to make a ruling over the defendant's body). But it does not affect the rule that the exclusionary rule can suppress everything that INS finds out using illegally obtained information about the person's identity. That can be suppressed if it is deemed the fruit of an illegal search.

Friday, December 01, 2006

Alleged USCIS Misconduct

There have been some news stories with allegations of misconduct by USCIS officials. Maria Barillas, a USCIS officer in LA, allegedly forged visa and issued a false visa in 2003-2004 before finally being arrested September 13, 2006. Between January and September 2006, five USCIS officials have been charged with misconduct. Phillip Browne, USCIS officer in NYC, was arrested June 7, 2006 for allegedly working with others to arrange fake marriages and issue green cards. Robert Schofield, supervisory USCIS officer in Virginia, was arrested June 29, 2006 for allegedly falsifying citizenship certificates.

Update: On November 30, 2006, Robert Schofield pled guilty to taking over $600,000 in bribes to give fake immigration documents for hundreds of immigrants seeking citizenship. Sentencing is scheduled for February 23, 2007. According to newspaper reports, he actually was demoted once for conduct unbecoming a government employee and fled overseas when INS confronted him about an inappropriate relationship with someone involved in a criminal investigation. It is not clear how he returned to the US and eventually became one of the naturalization supervisors.

Several newspapers reported on October 27, 2006 that a 20-count indictment was unsealed in U.S. District Court in New York City that charges Jimmie Ortega (who used to be a supervising officer of USCIS) with soliciting bribes to approve naturalization applications that should not have been approved. Newspapers also reported that another indictment charged Oscar Fabregas, another supervising official at USCIS, with conspiracy to charge between $1,500 to $4,000 for bribes to approve ineligible naturalization applications. Of course, criminal defendants are presumed innocent unless actually found guilty.

Some former officials wonder whether USCIS is able to follow up with the more than 3,000 internal complaints it has on record. If USCIS may be having difficulty checking on officers who improperly approve bad applications, I wonder whether it will ever get around to checking up on USCIS officers who improperly deny perfectly good applications.