Posted Jun 01, 2008 01:10 pm CDT
“We don’t need one,” was one agent’s response during last year’s raid, according to a wrongful search action filed last April by 53 plaintiffs in federal court in Minneapolis.
The raid was organized after a probation officer suspected that some Hispanics under her supervision were in the country illegally. She gave a list of names and addresses to Immigration and Customs Enforcement, the investigative agency under the aegis of the Department of Homeland Security.
As part of a national plan called Operation Cross Check, ICE targets undocumented immigrants with arrest records. The probe called for local law enforcement agencies to help ICE find suspected undocumented immigrants who fit that profile.
From the government’s point of view, the operation has been a success. Since 2003, when immigration enforcement was placed under Homeland Security, ICE claims that it has returned more than a million undocumented immigrants to their home countries, partly because of initiatives like Operation Cross Check.
But within the last year, ICE has been sued at least four times—the latest in New Jersey—for allegedly entering homes without a warrant in violation of the Fourth Amendment.
The agency insists that it received permission to enter the Minnesota homes, according to Michael Neifach, ICE’s principal legal adviser. In its formal response, ICE maintains that its officers received consent to enter after they told the plaintiffs, sometimes in Spanish, who they were and why they were there.
But even if agents didn’t have the residents’ approval, he says, such searches and any subsequent arrests may not be disqualified in immigration courts. The government asserts that the plaintiffs have mistakenly relied on the protections of criminal law, when the warrants and apprehensions are civil.
“Aliens and citizens are protected by the Constitution, but the protections are different,” the government maintains.
In 1984, the U.S. Supreme Court held that the exclusionary rule, which bars evidence obtained from illegal searches and seizures, generally does not apply in civil deportation proceedings. Immigration and Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032. Even if an immigrant facing deportation could prove that officers entered a home illegally, lawyers say, that wouldn’t stop an immigration judge from granting a removal order.
But the court also cautioned that it did not “condone” any wholesale rights violations, even in immigration enforcement. Immigration’s implied exclusionary rule exemption could change, warned Justice Sandra Day O’Connor for the 5-4 majority, “if there developed good reason to believe that Fourth Amendment violations by INS officers” were “widespread” or “egregious.”
Immigration lawyers say the searches have become both—widespread and egregious—and that it is time for the court to revisit Lopez-Mendoza.
They contend that Lopez-Mendoza and similar cases encourage agents to conduct illegal searches, and initiatives like Operation Cross Check disrupt and frighten lawful residents and U.S. citizens, as well as undocumented immigrants.
“Do we really want to have a system that allows law enforcement to ignore people’s rights and make mistakes, all in the name of finding an undocumented person?” asks Beth Werlin, litigation clearinghouse attorney with the Washington, D.C.-based American Immigration Law Foundation. “We need some way to have some oversight.”
Few immigration judges would classify entering someone’s home without a warrant as egregious, immigration lawyers say. So what, then, is egregious?
“A lot of case language refers to things like [ICE officers] having guns on display. That would be an egregious violation,” says Elizabeth Young, a visiting professor at the George Washington University Law School and formerly an attorney adviser for the San Francisco Immigration Court.
Although immigration judges in that court rarely granted suppression motions in removal proceedings, she says, such motions were seriously considered. Judges often seek significant research when making decisions, she adds.
“I think a lot of them feel constrained by the broad nature of circuit cases, and the definition of egregious,” Young adds. “There’s a lot of discretion in immigration law in a lot of areas.”
On the other hand, Young says, cases like Lopez-Mendoza present a high bar. “It’s really hard to push the envelope because of the case law that is out there,” she says. And even according to O’Connor, the cost of releasing an undocumented person, whose presence in the country violates the law, outweighs the benefits of applying the exclusionary rule.
“The court has said that immigration law is different, and in no area of the law does the federal government have more power than in areas of immigration,” says Jan C. Ting, a professor at Temple University’s Beasley School of Law in Philadelphia. Previously, Ting was an assistant commissioner of the Immigration and Naturalization Service, when it reported to the Justice Department. In 2003, the INS and the U.S. Customs Service were combined to form ICE, and placed under the Department of Homeland Security.
“It’s well-established in immigration law that you can do a lot of stuff you couldn’t do if it were concerning American citizens,” he adds. “If the exclusionary rule does not apply, is there anything wrong about law enforcement going in and getting the people they’re looking for?”
When Lopez-Mendoza was decided, complaints about government immigration arrest practices were similar to those of today, according to Mary L. Heen, who argued the Supreme Court case on behalf of Lopez-Mendoza and the other detainees. Even then there was a concern, Heen says, that as immigration enforcement efforts increased, the sweeps became too broad, violating the rights of citizens and lawful residents.
“We knew that there was cause for skepticism about alternatives such as internal INS training and disciplinary processes being an effective deterrent against Fourth Amendment violations,” says Heen, who is now a professor at the University of Richmond School of Law.
According to ICE’s Neifach, training curriculum for agents includes basic constitutional law, as well as discussion of Miranda v. Arizona, the 1966 Supreme Court opinion that outlines individuals’ right to counsel and protection from self-incrimination.
Specifically regarding raids on private residences, agents are trained to obtain consent or request a lawful search warrant. But under Lopez-Mendoza, even without these, evidence obtained illegally cannot be suppressed in immigration court, Neifach argues.
“A deportation hearing is purely a civil action to determine a person’s eligibility to remain in this country,” Neifach says. “Therefore the purpose of the hearing is not to punish past crime but rather the continuing violation of immigration laws.”
Despite these agency policies, ICE agents often violate constitutional rights during raids, says Boston College law professor Daniel Kanstroom, who is associate director of the school’s Center for Human Rights and International Justice, which includes an immigration and asylum clinic.
Kanstroom, who also serves on the ABA Commission on Immigration, cites sevearl incidents over the last few years in which U.S. citizens were wrongfully deported, and says many of them had cognitive disabilities. Perhaps the most publicized is the Los Angeles case of Pedro Guzman, who was jailed and deported despite his U.S. citizenship.
In a lawsuit filed against ICE and the Los Angeles County Sheriff’s Department, Guzman claims he told officials he was born in California, but he was still ordered deported.
For almost three months, Guzman was missing until he turned up at a border crossing last August.
“We’re finding more cases of U.S. citizens who get swept up in these raids, and it indicates the basic lack of care the agency is taking,” Kanstroom says. “If they’re deporting U.S. citizens by mistake, it’s not a stretch to assume they’re making other mistakes as well.”
Richard Rocha, an ICE spokesman, describes Guzman’s case as “one of a kind.” He says that a “crucial fact about this case has been buried in the copy of many media reports: Mr. Guzman repeatedly told ICE officers, [U.S. Customs and Border Protection] officials and others that he was born in Mexico and signed a document agreeing to voluntarily return.”
The courts have also allowed immigration officials to conduct searches using a measure of racial profiling. But that, too, is coming under challenge.
In Twin Falls, Idaho, for example, immigration lawyers allege that CBP officers in 2007 approached shoppers at a warehouse grocery store, asking to see documentation. The business, WinCo Foods, is popular with the area’s Latino residents, and some say that individuals were stopped without probable cause.
“It’s been bad. People are really affected by this last raid,” says Lisa Barini-Garcia, a partner with Twin Falls’ Roy, Nielson, Barini-Garcia & Platts. “We’re trying to get information out that the Constitution applies to everybody, not just citizens. I think people are confused about what their rights are, because they’re not citizens and they’re not here with the proper documentation.”
For more than three decades, racial profiling has been tolerated by the courts when it occurs near the U.S.-Mexico border. In 1975, the Supreme Court eased limitations on officers stopping cars near the border if the occupants appeared to be Mexican. “The likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor,” the court said, ruling unanimously. U.S. v. Brignoni-Ponce, 422 U.S. 873.
But over the last 30 years, immigrants have been increasingly likely to move to rural areas far from the Mexico border. Should the Supreme Court revisit racial profiling in immigration, it’s possible the court might allow ethnicity to figure in places far from the country’s borders, says John Eastman, dean of Chapman University School of Law in Orange, Calif.
“There’s a lot of wiggle room in that case,” says Eastman, a former clerk for Justice Clarence Thomas who now teaches constitutional law. “If you can demonstrate that 98 percent of the people at a Home Depot day laborers’ center were illegal, that’s probable cause.”
However, Michael W. Cutler, a former immigration officer, says that few agents engage in racial profiling because they don’t want to get sued. He retired in 2002 after 30 years with the agency, and is now a fellow with the Center for Immigration Studies in Washington, D.C.
“We are so scrupulously careful not to profile where it becomes kind of stupid,” Cutler says, adding that civil rights groups use lawsuits as a way of “gumming up” the agency’s work.
Ting agrees. If U.S. citizens actually are being detained, he adds, courts might have some sympathy, depending on whether the detainee can prove damages.
“But when [ICE] actually finds who they are looking for, or other undocumented aliens, the argument is they’re doing what they’re supposed to do,” Ting says. “Are they supposed to draw salaries and not do their job?”
Photo by Kevin Cruff
Nevertheless, some racial profiling claims are making headway in court. A Washington state immigration judge terminated a removal proceeding (PDF) in February, saying the government failed to prove that racial profiling was not used in a traffic stop that resulted in five women being taken into immigration custody.
The hearing involved a woman and her daughters, who were stopped for allegedly speeding by police in Ferndale, a town of about 9,000 people in northwest Washington.
The women looked Hispanic, the order states, and the driver didn’t have a license. She was cited for that, and the car’s owner was given a ticket for allowing an unlicensed driver to operate the vehicle.
According to the suppression order, the driver claims that she was not speeding, and that they were stopped only because of race.
The order states the women told a border patrol officer that they were Mexican nationals, with no proof of their immigration status. The suppression motion also asks that any statements they made be excluded based on Fifth Amendment violations.
The government maintained that the initial stop was supported by probable cause, which was evident when the women later paid the tickets issued.
Diana Moller, a lawyer with the Seattle-based Northwest Immigrant Rights Project, called the arresting officers to testify, but the government failed to make the officers available. In the absence of their testimony, Judge Kenneth Josephson granted four of the five motions to suppress evidence. He ordered one woman deported who had admitted through her former lawyer that she was undocumented.
Josephson’s decision, he wrote, “squarely rests” on the government’s failure to make the officers available at the evidentiary hearing.
“Although I cannot conclude that the stop was per se unconstitutional,” he wrote, “it is not unheard of for law enforcement officers to cloak constitutional violations in perceivably valid applications of the law.” Since the government did not offer witnesses to say otherwise, the judge concluded, the motion to suppress should be granted.
The women’s motion cited a 1994 opinion from the San Francisco-based 9th U.S. Circuit Court of Appeals, which held that evidence must be suppressed if an immigration agent engaged in a deliberate violation of the Fourth Amendment or engaged in conduct that a reasonable officer should know is in violation.
The opinion involves a Nigerian citizen suspected of bank fraud, in part because he had a “Nigerian-sounding” name. Immigration officers entered his apartment, dodging questions about a warrant, the opinion states. There they searched a briefcase without the man’s consent and found an expired tourist visa. Orhorhaghe v. INS, 38 F.3d 488.
However, some lawyers who practice in the 9th Circuit doubt suppression motions would be successful if the argument is based on racial profiling.
Although the number of suppression motions filed has recently increased, immigration judges still see them as a novelty, says Matt Adams, legal director of the Northwest Immigrant Rights Project.
“The more you have judges that are used to the motions, judges won’t feel as nervous about what should be a basic motion,” Adams says.
Philip Kim Hwang, a San Francisco lawyer who practices with the Lawyers’ Committee for Civil Rights, says over the last 10 years his organization has settled eight lawsuits alleging officer misconduct against the federal immigration authorities, resulting in plaintiffs being awarded a total of $642,500 in claims.
“In most cases they don’t formally acknowledge that there was wrongdoing but they pay out a significant amount, which is the government’s de facto acknowledgment that there was a mess-up,” Hwang says.
He currently represents Kebin Reyes, a 7-year-old boy who was taken into custody in March of last year after immigration agents raided his San Rafael, Calif., home. The boy is a U.S. citizen but his father, Noe Reyes, is not.
According to the federal complaint filed in San Francisco, immigration officers announcing themselves as police entered the Reyes home without consent and demanded documentation for Kebin and his father, a Guatemalan national.
The man showed agents his son’s U.S. passport, according to the complaint, and asked officers to let Kebin sleep while he asked a nearby relative to care for the boy. Officers denied that request, the complaint states, and took the father and son into custody.
Part of the time, the two were held separately. A frightened Kebin was told he would be held for only a few hours, according to the complaint.
“Instead, they held him in a locked room all day against his will,” the complaint states. “Kebin thought he was in jail. Defendants refused to give Kebin any food, other than bread and water. Kebin was hungry and crying. He did not know when he would be free to leave.”
A family member came to the regional ICE office that afternoon to get Kebin, according to the complaint, but the agency did not release the boy until that evening.
Of particular concern to those on both sides of the immigration issue is the unresolved dilemma presented by children in ICE raids, many of whom are U.S. citizens by birth. On the one hand, the children are not subject to arrest because of their citizenship; but if not taken into custody, they are likely to be separated from their undocumented parents.
“My sense is it’s quite common that ICE agents doing enforcement activities will encounter minors, including citizen minors, because if you look at statistics, there are a large number of mixed families,” Hwang says. “If they’re looking for an adult in the household who they suspect does not have status, it’s quite likely there might be a child in the house who is a U.S. citizen.”
Indeed, 14 plaintiffs in the Minnesota complaint are children. St. Paul attorney Gloria Contreras Edin, one of the group’s lawyers, says that a majority of the children are U.S. citizens.
“In several instances, ICE agents entered the bedrooms while plaintiffs and their children were sleeping, waking them up by shining flashlights in their faces,” the complaint states. “Plaintiffs and the children were very scared and the children were often crying.” The complaint also accuses the agency of taking nursing mothers into custody without considering their infants’ needs. Carlos Hilario Arias v. U.S. Immigration and Customs Enforcement Division of the Department of Homeland Security, No. 07-CV-1959 (PDF).
The government’s response does not mention children at home during the raids. According to Neifach, who would not comment on pending cases, the agency wants to reduce the number of instances where sole caregivers are separated from their children. He conceded, however, that it’s not always possible.
“For example, detention may be appropriate because of criminal history or mandatory detention requirements, and in cases where the sole caregiver has elected to stipulate an order of removal,” he says. “In the rare instances where a sole caregiver is subject to immigration proceedings, as opposed to one who has a final order of removal, the sole caregiver also has an option to seek a custody redetermination hearing before an immigration judge.”
In a 2006 case, the New York City-based 2nd U.S. Circuit Court of Appeals rejected a suppression motion filed by a Brazilian national, who at the age of 17 was questioned by immigration agents without a parent present. The court said the conduct was neither “fundamentally unfair” nor egregious. Also, the panel noted that the youth’s mother later confirmed information her son gave to immigration authorities. Almeida-Amaral v. Gonzales, 461 F.3d 231.
Despite what seems like a green light from the 2nd Circuit, spokesman Rocha says that the ICE policy is to require parental consent when interviewing a minor or another family member during an investigation.
James T. Bennett, an El Cerrito, Calif., lawyer, represents Noe Reyes in immigration court. He wouldn’t discuss the case’s specifics, other than to say he had filed a motion to reopen his client’s asylum claim and the matter is set for a hearing.
Bennett says he could file a motion to suppress evidence, based on what allegedly happened to Noe and Kebin Reyes, but it is complicated.
“It’s kind of an odd animal, with a pretty high standard to meet,” he says. “It has to be something really outrageous. The outrageousness in this case was announcing you’re the police when you’re not.”
In his work representing immigrants, bennett comes across a fair amount of U.S. citizens who are accused of being undocumented. He says many now carry birth certificates and passports in case immigration officers apprehend them.
“I think the DHS probably needs to implement some sort of protocol on when they detain a bunch of people about how to sort the bodies out,” Bennett says. “If someone is born here and can prove it, if they’re just given half a chance to produce a document, that would probably eliminate these problems.”
Kanstroom agrees. His center testified in February before the House Judiciary Committee, telling the group’s immigration subcommittee that what they see as regular, egregious errors by ICE agents weaken the country’s rule of law.
“I think we are in the middle of a deportation delirium,” he says. “What we’re seeing in court is really just the tip of the iceberg.”
“I don’t think it’s because ICE agents particularly want to separate mothers from nursing babies, but there’s a culture that’s developed in that agency of feeling that their primary mission is to deport people,” Kanstroom adds. “They have enormous leeway, so it makes it hard for them to feel bound by the Fourth Amendment in the way we would want them to be.”
February order of immigration judge Judge Kenneth Josephson