Thursday, September 20, 2007

PRLDEF Files Class Action Lawsuit Against Illegal ICE Searches

The Puerto Rican Legal Defense and Education Fund (PRLDEF) along with the law firm of LeBoeuf, Lamb, Greene & MacRae LLP filed a great class action lawsuit today, September 20, 2007, against ICE (Immigration and Customs Enforcement) for unlawfully breaking and entering into the homes of Latinos in the New York area without juridical warrants or any other legal justification!

According to the complaint, armed ICE agents break down doors or force their way before dawn into homes where they awaken and terrify kids and adults inside. They often look for people who are not even there and don't even live in the home. The lawsuit, Aguilar v. ICE, was filed in the Southern District of New York.

The allegations that ICE pounds on doors around 5 in the morning to scare people into opening their doors is consistent with allegations of how ICE agents operate in New Jersey. It also increases the growing case for arguing that ICE commits widespread violations of people's Fourth Amendment rights.

That would be a significant point, because the United States Supreme Court explicitly left open the possibility of imposing the exclusionary rule in immigration court for all illegal searches and seizures if there were proof of widespread 4th Amendment violations by the immigration authorities. The case discussing suppression motions in immigration court is called Lopez-Mendoza from 1984.

PRLDEF includes a strong demand that a judge issue a permanent injunction to prohibit ICE from engaging in illegal searches and seizures. A ruling along those lines would help safeguard the Constitutional rights of everyone in the United States from the growing evidence of widespread illegal searches by immigration authorities.

Sunday, September 16, 2007

Case Terminated For Not Giving Juvenile An I-770 Form

Jason Cade at The Door won termination of an immigration court case against his client because DHS and ICE did not issue a Form I-770 Notice of Rights and Disposition as required for anyone under 18 years old. The case was Maria E-E-M- (N.Y.C. Imm. Ct. Sept. 6, 2007) before Judge Jeffrey Romig!

The regulation at 8 CFR 1236.3(h) requires giving a Form I-770 form to an unaccompanied juvenile. A question that had never before been resolved is what remedy the court should grant to an unaccompanied juvenile who was not given the forms absolutely required by the immigration regulations.

Under expansive protections by the Second Circuit, when a regulation protects a fundamental right and DHS violates it, the proceeding is invalid. Therefore, the IJ terminated the case, regardless of whether the violation caused prejudice against the juvenile.

This is similar to the analysis in suppression motions in immigration court. When the government obtains evidence (such as through interrogations) in a way that violates a regulation enacted to protect an immigrant's fundamental rights, there is a very strong argument that the evidence must be suppressed in immigration court. Usually, illegal interrogations are the only source of the information that the government will try to use in immigration court. As a result, the IJ will terminate the case because the government cannot prove that the immigrant was born outside the US or is out of status.

Both avenues get to the same result -- the IJ will terminate the case. Just in one avenue, it's a direct route to termination. In the other, the IJ suppresses evidence which cripples the government and leads to terminating the case.

If you are litigating these cases, it'd probably be best to request direct termination for violating the regulation and, in the alternative, suppressing all of the government's offered evidence which then will result in terminating the case unless the government somehow can rely on untainted evidence.

Saturday, September 15, 2007

Justice Department Lawyers Take Unacceptable Litigation Positions in Immigration Case

Lawyers for the Department of Justice recently received a sharp rebuke from the Ninth Circuit for taking unacceptable litigation positions in an immigration appeal.

A basic rule is that if you raise an argument and know that the court has already rejected that theory, you have an obligation to inform the court of the prior decision. You can still argue that the first decision was poorly decided, but you must let the court know about it.

The Ninth Circuit criticized lawyers for the Department of Justice for raising the exact argument that the same court had been squarely rejected by the same court just two years earlier. The Ninth Circuit correctly lectured the Justice Department that "it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it" and went on to point out that the Justice Department was part of the earlier case so they definitely knew about it. The Ninth Circuit gave the Justice Department a reprieve this time, though, giving a light warning that if the Justice Department does it again, the court will consider it sanctionable behavior.

The rejected argument is that under the Equal Access to Justice Act (EAJA), if an immigrant wins an immigration appeal in a circuit court, the government must pay the legal fees and costs unless the government's position was substantially justified. It is well-settled that to show the government was substantially justified, the government must show that its arguments on appeal and the underlying BIA decision were both justified. Justice Department lawyers were rehashing already-rejected arguments that their position should be substantially justified even if the BIA's decision was obviously indefensible.