Sunday, April 29, 2007

Pro Bono Victory For Asylum Seeker Given Bad Immigration Court Decision

Ben Deutsch and Jane Kauh of Schnader Harrison Segal & Lewis LLP achieved a resounding Second Circuit victory in a pro bono case for a Russian Baptist woman. In Paltseva v. Gonzales, 2007 U.S. App. LEXIS 9517, No. 04-1260-ag NAC (2d Cir. April 25, 2007) (unpublished), the Second Circuit gave a full and complete victory on the appeal for someone seeking asylum.

The BIA and IJ Miriam K. Mills denied a request for asylum and asylum-related relief for a Russian Baptist woman for several reasons, each of which the Second Circuit ruled was an unjustified ruling.

First, the BIA ruled that what she suffered did not qualify as past persecution in direct contradiction to how the "virtually identical" harm suffered by two others in a precedential 1998 BIA case were enough to be considered past persecution. The BIA had no apparent justification for coming up with an opposite decision, so the Second Circuit overturned the BIA's decision and granted the appeal.

As if that weren't enough, the BIA also ruled that she did not show the government was unwilling to stop the persecution. However, she testified that she reported what happened to the police and they refused to take any action -- which is definitely enough to show that the government was unwilling to protect them. It is hard to see what the BIA might have been thinking.

There was also some discussion about how the BIA's reliance on optimistic hopes for improvement in a 2002 State Department report seems misplaced in light of how the 2006 State Department report believes Russia is retreating from the 2002 improvements.

Here's hoping that Ms. Paltseva's lawyers are awarded EAJA fees under the Equal Access to Justice Act, considering how it seems the IJ, BIA, and government lawyers took unfounded positions in the case.

Imagine how difficult it has been for Ms. Paltseva that after this successful appeal, she will have to do her asylum case over again -- thereby consuming the past 3.5 years of her life just to fight her way back to the same spot she was when she started. The injustice of having to go through this to fix the BIA and IJ's errors is very disappointing. Unfortunately, there is a long series of similar cases where the BIA and IJ have incorrectly ruled against asylum-seekers and after long appeals, the circuit courts step in to let the asylum-seekers get a second chance by bringing them all the way back to step one.

ICE Raids Cause Chilling Effect On Residents

In the San Francisco Bay area, raids by ICE (Immigration and Customs Enforcement) have caused a chilling effect on residents, and probably have triggered a decrease in the number of phone calls that people are making to the police, for fear that the local police are cooperating with immigration enforcement. In an article by Jesse McKinley titled "San Francisco Bay Area Reacts Angrily to Series of Immigration Raids" in the New York Times on April 28, 2007, Mayor Al Boro of San Rafael, California, said:
"Waking people up in the dark of night, at 5 a.m., in their homes seems more like a scare tactic than a law enforcement necessity,” Mr. Boro wrote. Calls to the local police have decreased in recent weeks, Mr. Boro said, and he attributed the dropoff to the immigration raids’ “chilling effect because people think our police were involved.”
This is the same area where the ACLU and others filed a lawsuit for Kebin Reyes, a 7-year old United States citizen who was illegally arrested by ICE and held all day, traumatizing the child. This is even more reason from a public policy standpoint why courts should respond to the crisis and ICE's widespread illegal searches and seizures by imposing the exclusionary rule to suppress all illegally obtained evidence in immigration court.

Saturday, April 28, 2007

Widespread Constitutional Violations By ICE -- Now Spawning Lawsuits

There are many reports of widespread violations by the immigration authorities (ICE, Immigration and Customs Enforcement) who conduct illegal searches and seizures. The searches violate the Fourth Amendment of the United States Constitution along with similar provisions in various state Constitutions.

One way to raise this issue is to ask that the immigration judge suppress all evidence that ICE illegally obtained. Under the Supreme Court decision of INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court said that based on the conditions in 1984, it would only suppress evidence for egregious Fourth Amendment violations, but kept an open mind if there was proof in the future of widespread Fourth Amendment violations. Well, the time has come to litigate the issue of whether the exclusionary rule must apply in immigration court for all illegal searches and seizures! This issue is actually part of a big appeal with the Third Circuit in Philadelphia.

Another way to raise the issue is to file lawsuits against the immigration authorities for their illegal searches and seizures. Two examples are how the ACLU and the Lawyers' Committee for Civil Rights for the San Francisco Bay Area announced on April 26, 2007 that they were filing a lawsuit on behalf of Kebin Reyes, a United States citizen child who was illegally swept up by ICE in a March 2007 San Rafael, California raid. Here is a link to the ACLU Page On The Lawsuit.

Another example of a lawsuit is Arias v. ICE, filed on April 19, 2007 in Minnesota to challenge how ICE conducted illegal searches and seizures during various raids. Here is a link to the Bender's Immigration Daily copy of the complaint.

Monday, April 09, 2007

California: Police Work With ICE Creates Fear

Edward Sifuentes wrote an article titled "Community complains over police and immigration cooperation" on March 29, 2007 in the North County Times in California. It focused on how local police is reporting people to ICE potentially leading to deportation based on simple traffic stops. Communities are complaining that they are creating an atmosphere of fear in the community. Similar problems are happening in cities around North County, including in San Diego.
"If the Carlsbad Police Department wants to create the perception that they are Border Patrol agents, that comes with a toll for the relationship with the community," Ramirez said. [Christian Ramirez, a San Diego immigrant rights advocate with the American Friends Service Committee]

Sunday, April 08, 2007

Yale Professor Michael Wishnie Filing Suppression Motions In CT Immigration Court

According to newspaper articles, Professor Michael Wishnie and Yale Law student Simon Moshenberg have convinced Immigration Judge Michael Straus to allow them (and perhaps other defense attorneys) to file suppression motions and motions to dismiss cases on Constitutional grounds.

According to the reporters, the motions will probably be based on how Jose Llivisupa and ten other construction workers were picked up in September 2006 by local police in Danbury, CT based on racial profiling and the local police then turned the workers over to ICE officials who help them for weeks without allowing them any outside contact to obtain legal representation. Strategies for the suppression motion include that the local police arrests were illegal because the local police had no contract with ICE to act as immigration officials, the men were racially profiled, the arresting ICE officer violated regulations by also examining the them, and ICE violated the men's right to obtain legal representation.

ICE counsel Leigh Mapplebeck apparently argued that suppression is only required if the police or ICE engaged in egregious conduct. It seems that ICE counsel is relying on a simplistic and outmoded interpretation of the Supreme Court's ruling in Lopez-Mendoza, which left open the possibility of suppressing evidence for all Fourth Amendment violations if there were proof of widespread violations of Fourth Amendment rights -- something that may well be proven in today's post-2001 world. Lopez-Mendoza relied on how INS behaved in 1984, which was vastly different than today. News stories include Mary E. O'Leary's article "Demonstrators back Ecuadoreans nabbed in federal raids," on April 3, 2007 in the New Haven Register.

Saturday, April 07, 2007

Allegations That ICE Forces or Tricks People To Waive Rights

A growing topic in the immigration area are allegations that ICE is forcing or tricking immigrants into waiving their rights and agreeing to be deported without having a chance to argue their case to an immigration judge. For example, in "Immigrants say they were pressured to waive rights" on March 29, 2007 at, there are allegations in a federal lawsuit that ICE officials yelled and screamed at a group of women to get them to sign one of those forms. Another ICE official allegedly tricked a man by saying the waiver form was supposedly a way for him to get an attorney. For its part, ICE alleges it conducted itself within the highest standards of conduct. The case is before Judge Richard Stearns arising out of a March 6 raid on Michael Bianco Inc. where ICE arrested 361 people. On April 6, 2007, Aaron Nicodemus of the Standard-Times reported that the judge ruled that attorneys can visit the immigrants who signed the forms. The judge had previously ruled that ICE may not immediately deport any of the 361 people who did not previously have a removal order against them.

The danger of ICE forcing or tricking people to waive their rights is that it is extremely difficult for immigration lawyers to find out if it happens. If someone does not have a lawyer, is tricked into signing a form, and ICE deports him, it is very difficult for that person to contact an immigration lawyer in the US and to hire an attorney (and provide solid information) to support filing a time-consuming lawsuit to challenge what happened.

Let's hope that if ICE is really doing these illegal actions, it comes to light in the lawsuit and a federal judge can address it as forcefully as possible.