Wednesday, February 13, 2008

Suppression Motion Victory in Seattle Immigration Court

As reported on Bender's Immigration Daily's web site, Diana Moller of the Northwest Immigration Rights Project (NWIRP) won a suppression motion in Seattle Immigration Court before Judge Kenneth Josephson on February 8, 2008! She also won termination motions after the judge granted the suppression motions.

A family of five was stopped by a deputy sheriff in Whatcom County in Washington state. The family alleges that the traffic stop was a race-based stop. ICE counsel offered an I-213 form written by a border patrol agent that apparently merely listed what the deputy sheriff reported. The Immigration Judge ruled that he was reluctant to give evidentiary weight to the I-213 without direct testimony from the deputy sheriff and the I-213's author to explain the basis for the stop because it was unsubstantiated hearsay.

Despite having several months to prepare, ICE counsel did not have the deputy sheriff or the I-213's author available to answer questions, not even by telephone, and did not give much explanation of the efforts to get try to make them available. Based in great part on ICE counsel's failure to make the witnesses available or even make an effort to get them, the Immigration Judge suppressed the I-213 form.

ICE counsel argued that the identity of a person arrested cannot be suppressed, but the Immigration Judge correctly tossed aside ICE counsel's argument as irrelevant -- the point of the suppression motion is to suppress evidence of the person's alienage, not the person's name or identity.

The Immigration Judge then terminated the proceedings for those who had not already admitted allegations about their alienage. In doing so, the judge ruled:
  • ICE counsel cannot use documentation or evidence used solely during bond hearings, because those are separate proceedings.
  • Respondents' invocation of the Fifth Amendment and refusal to answer questions about their alienage is not enough to establish through clear and convicing evidence their alienage.
  • One family member's admission of alienage is not enough to provide clear and convincing evidence about other family members' alienage. (This makes sense because many families have family members who are citizens of different countries.)
Congratulations on winning the suppression and termination motions! Immigration lawyers are filing many of these suppression motions using a wide variety of theories and also are collaborating on strategizing as one of the only ways left to protect people from illegal searches and seizures that violate the Fourth Amendment of the United States Constitution.


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