Saturday, April 24, 2010

This blog has moved

This blog is now located at
You will be automatically redirected in 30 seconds, or you may click here.

For feed subscribers, please update your feed subscriptions to

Wednesday, October 28, 2009

Yale Law Clinic Files Lawsuit Against Unconstitutional ICE Raids In New Haven, CT In 2007

As reported by Esther Zuckerman and Colin Ross of the Yale Daily News in their story Immigrants sue feds over 2007 raids (October 28, 2009), ten residents of New Haven, Connecticut are filing a lawsuit on October 28, 2009 against ICE agents (Immigration and Customs Enforcement agents) along with their supervisors for conducting what the lawsuit claims are illegal ICE raids in New Haven, CT in 2007.

On June 6, 2007, ICE agents conducted raids and detained 29 residents of New Haven. According to some of the raid victims, ICE Agents broke into their homes without permission and arrested several people for no reason. These allegations are similar to allegations around the United States of ICE agents conducting raids without judicial warrants and allegedly breaking into people's homes without permission and illegally arresting them.

Around two dozen cases either have been fought or are being fought in immigration court, often including motions to suppress any illegally obtained evidence or a motion to terminate the proceedings due to illegal government conduct. This effort would seek monetary damages, which if successful might be another way to discourage government officials from engaging in illegal conduct against people who live in the United States.

One controversial issue is whether senior ICE officials essentially endorsed illegal raids by pressuring regional ICE offices to make high quotas for arrests, increasing the goal for an enforcement team from 125 per year to 1,000 per year.

Not many people (whether citizens or not) will have the resources to challenge the government if they are the victim of illegal ICE raids. One positive step would be to apply the exclusionary rule in immigration court to suppress evidence that the government illegally obtains through what many critics consider widespread violations of people's Fourth Amendment rights.

Monday, October 19, 2009

New Jersey Law Journal Urges Appointed Counsel In Immigration Court

In September 2009, the New Jersey Law Journal's editorial board urged the Attorney General to consider creating a system for offering a competent corps of lawyers to help improverished people defend themselves in immigration court from potential deportation. Immigration law is extremely complex and the consequences of removal are often drastic.

The New Jersey Law Journal correctly focuses on an important issue -- appointing counsel to defend the indigent. There are important related areas that the New Jersey Law Journal did not address in that specific editorial -- whether as a matter of fundamental fairness, the immigration courts have the legal obligation to appoint counsel for some indigent people in immigration court, either as a blanket rule or on a case-by-case basis.

With the immigration laws becoming harsher and more similar to the criminal justice system (with detainees sometimes housed in the same building as criminal prisoners and brought to immigration court in shackles, sometimes held under the mandatory detention program), the need to appoint counsel and for the courts or the government to pay for the representation may be drawing closer to being recognized, perhaps by the courts, perhaps by Congress, or perhaps by the Attorney General.

Thursday, October 01, 2009

Government Illegal Deports Green-Card Holder And Man Can't Be Found

When a circuit court orders the government not to deport someone until the appeal is resolved, the government is not allowed to deport the person while the appeal is still being decided.

Just because deporting someone at that stage would be illegal does not mean the government follows the rules every time. Take a look at the case of Aguilar-Turcios v. Holder, which the Ninth Circuit decided on September 29, 2009.

Mr. Aguilar was ordered deported but was appealing the case and asked the circuit court to force the government to keep him in the United States until they decided his appeal. The Ninth Circuit ordered the government not to deport him while they were considering the appeal. The government mistakenly deported him to Honduras anyway. Mr. Aguilar won his appeal and the government cannot deport him. But they already did. The Ninth Circuit wrote in the decision that "To date, efforts by the government and Aguilar's counsel to locate and return Aguilar to the United States have been unsuccessful."

The government has argued that deporting someone while an appeal is ongoing is acceptable because they will supposedly facilitate the return of anyone who wins the appeal. In Mr. Aguilar's case, the government illegal deported him, violating a direct court order, and is having no success in bringing him back.

Wednesday, August 26, 2009

Justice Department Possibly Lied To The Supreme Court About Returning Deportees Who Win?

In Nken v. Holder, the Justice Department told the United States Supreme Court at page 44 of its brief that "By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 USC 1182(d)(5) if necessary, and according them the status they had at the time of removal."

We have already blogged the question about whether the Justice Department was really telling the truth.

The Third Circuit's decision in Puveegiin v. Holder (3d Cir. Aug. 25, 2009) (not precedential) raises serious questions about whether the Justice Department told the truth. According to the explanation of what happened in that case, the Third Circuit explained that the person facing deportation filed a motion for a stay of removal. Before the Third Circuit could rule on it, the government acted without telling the court and deported Mr. Purveegiin. The Third Circuit granted a motion to compel the government to return Mr. Purveegiin to the United States.

If you believe the Justice Department's brief to the Supreme Court, it sounds like it would be easy for Mr. Purveegiin to get back to the United States. However, the Third Circuit ominously wrote that Mr. Purveegiin "remains in Mongolia because he and the Government are at an impasse relating to the terms and conditions of his return to the United States."

What's going on? The Third Circuit does not explain what the impasse is. I thought the Justice Department was suggesting to the Supreme Court that they help everyone return if required to.

We can't tell what really is happening. Maybe Mr. Purveegiin made unreasonable demands -- did he ask for bottled water on his flight back to the United States or special organic food for the in-flight meal? Too hard to tell, but it again raises the question of whether the government is living up to what it wrote in its brief to the Supreme Court.

Tuesday, July 21, 2009

Cardozo Law Releasing Report on Widespread Illegal ICE Raids

On July 21, 2009, Nina Bernstein of the New York Times wrote about "Report Finds Immigration Agents Broke Laws and Agency Rules in Home Raids."

She focused on a study scheduled for release on July 22, 2009 by the Immigration Justice Law Clinic at Cardozo Law School. The clinic is led by Peter Markowitz, who is also one of the report's co-authors.

Key findings include that despite requiring consent before entering a home without a judicial warrant, 86% of ICE arrest reports in Nassau County and Suffolk County did not give any indication that ICE obtained the required consent. Likewise, in 25% of New Jersey cases, ICE did not list obtaining the necessary consent.

What is not the focus of the report is how many immigration lawyers dispute whether ICE obtained consent in the home raids where they write down that they purportedly obtained consent. There are several suppression motions in immigration court with compelling evidence that ICE never obtained consent despite writing down that they supposedly obtained it.

The report also saw suggestions of racial profiling because of the very high percentage of Latino arrests of those who were not targets of the raids compared with a much lower percentage of Latino targets of the raids.

There is now even more evidence of widespread Fourth Amendment violations in illegal raids by ICE, Immigration and Customs Enforcement. Under the formula set up by the United States Supreme Court, there is good reason to argue that the exclusionary rule must be applied in immigration court to suppress evidence that arises from illegal ICE raids.

Lawyers around the country including in New Jersey, Minnesota, Connecticut, and California are pursuing these arguments in court.

Wednesday, July 01, 2009

CLINIC, NIJC, Others File Request for the Justice Department To Set Regulations For Appointed Counsel in Immigration Court

On June 29, 2009, a group of non-profit organizations filed a petition for rulemaking that asks the Justice Department to promulgate regulations to give immigration judges the power to provide appointed counsel for immigrants in removal proceedings in cases where it would be needed.,com_docman/Itemid,0/task,doc_download/gid,490/

The groups filing the request for regulations include CLINIC (the Catholic Legal Immigration Network), the National Immigration Forum, NIJC (National Immigrant Justice Center), NWIRP (Northwest Immigrant Rights Project), and the Post-Deportation Human Rights Project, Center for Human Rights and International Justice at Boston College.

Under the Administrative Procedures Act, groups can ask the Justice Department to initiate a rulemaking proceeding to create regulations about a topic such as appointing counsel for the indigent in immigration court. The Attorney General has the authority over immigration courts.

The notion that in some cases, an indigent person in immigration court needs appointed counsel to have a reasonable opportunity to defend himself or herself is a long-debated issue. As long ago as 1975, a circuit court held in Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975) that appointed counsel might be required in some cases involving an indigent immigrant.

The request for changes in the regulations is not very radical -- it does not demand that every immigrant be given appointed counsel. All it requests is that immigration judges have the power to appoint counsel if a single situation arises where appointed counsel in that particular case is absolutely necessary. Only 48% of those who appeared in immigration court had legal representation according to EOIR statistics for fiscal year 2006. Donald Kerwin has studied how immigrants with representation have a much higher chance of success in various areas of immigration law.

The groups filing the request point out that there is no prohibition against a court paying for appointed counsel or otherwise arranging for counsel at no cost to the government. Also, paying for appointed counsel could ultimately save money for the government by speeding up cases generally and reducing the government's cost to pay for detention for the extra time that immigrants take to work on their cases when they don't have representation.

The petition includes a helpful proposal about how to change the regulations.

Appointed counsel for people in immigration court seems like a sensible proposal. This group's request is much less controversial -- they only ask the Justice Department to make it possible for an immigration judge to have the ability in a particular case to appoint counsel. Why not give immigration judges the power to take the right step where appropriate?

Friday, June 19, 2009

Los Angeles Immigration Judge Terminates Case For Late-Filed I-213 That Was Unreliable

In a decision dated June 18, 2009, Immigration Judge Frank M. Travieso of the Los Angeles Immigration Court terminated removal proceedings in immigration court based on ICE's failure to file any evidence (such as an I-213 form) in a timely manner along with how the late-filed I-213 was unreliable.

In doing so, IJ Travieso terminated the case without having to rule on a motion to suppress and another type of motion to terminate that was filed in immigration court after an allegedly illegal raid by ICE officers.

In this case, IJ Travieso gave ICE around 2.5 months to file any evidence to prove alienage because the government has the burden of proving alienage in a removal proceeding where ICE attempts to deport someone they found present in the US without beinga dmitted or paroled (under INA 212(a)(6)(A)(i)). Although IJ Travieso set a specific date for submitting evidence, ICE did not file anything until 12 days after the deadline.

First, IJ Travieso held that an IJ has the authority to set deadlines for filing evidence. 8 CFR 1003.31(c). Also, a party is deemed to waive the opportunity to file evidence if it misses a deadline. 8 CFR 1003.31(c) and Immigration Court Practice Manual section 3.1.

The IJ concluded that ICE's explanation that there had been a clerical error was an inadequate explanation for missing the filing deadline, especially when ICE had the document for over 9 months before the deadline.

It is logical that if ICE misses a deadline, an IJ should reject any late-filed materials unless ICE has a compelling excuse. If ICE offers no excuse, it would be logical for an IJ to reject the materials.

Second, as an independent basis for rejecting the I-213, it was unreliable because it contained incorrect and unsupported information. It said the respondent was from a city that does not exist. It did not explain how the purported facts were obtained. It contradicts itself by saying the respondent refused to answer questions about her employment yet lists the dates of her employment. Also, the I-213 said the respondent is from a different country than ICE alleged in the Notice to Appear or in the case. In addition, there was undisputed evidence that ICE officers during a raid instructed the respondent to lie about where she arrived in the United States and during an interrogation said they would just write down information about her when she refused to answer questions.

For the respondent was Stacy Tolchin of Van Der Hout, Brigagliano & Nightingale LLP of Los Angeles, California with assistance from law students at UCLA Law School. For the government was Carlos E. Maury of ICE counsel in Los Angeles.

Tuesday, June 09, 2009

IJ Straus Grants Yale Law School Suppression Motions Due To Illegal Home Raids

In a series of rulings on June 1, 2009 and June 2, 2009, Immigration Judge Michael J. Straus in Hartford, Connecticut Immigration Court granted suppression motions filed by Michael Wishnie and others at Yale Law School. The Yale Law School team included, among others, supervising attorneys Hope Metcalf and Chris Lasch along with law students Bram Elias, Stella Burch Elias, Sara Edelstein, Nichole Hallett, Dale Kotchka-Smith, Jane Lewis, Deborah Marcuse, and Anant Saraswat!

The decisions reinforce that illegal entry without consent, a warrant, or probable cause in the early morning into someone's private home is an egregious violation of the Fourth Amendment that requires suppressing all of the evidence in immigration court that ICE (Immigration and Customs Enforcement) obtains from the illegal search.

There was no warrant issued by any judge in the searches. There was no probable cause because ICE officers barged in without asking any initial questions. There also was no consent despite the attempt by ICE to convince the IJ that there supposedly had been consent given. The IJ concluded that ICE officers knocked on doors and when someone inside opened the door a little bit, ICE officers pushed their way in through the open door. Opening a door is never consent to enter a search a home. This view is well-settled in criminal law and the Ninth Circuit reconfirmed it as recently as last year in granting the suppression motion in an immigration court case in Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008).

Other significant rulings were that the IJ considered ICE's proof to be unconvincing in large part because ICE refused to provide live testimony from anyone who was involved in the raid, instead trying to rely on minimal written statements by some of the people involved.

Also, the IJ refused to allow ICE to submit additional evidence after the evidentiary deadline passed and the respondent finished testifying. In addition, the IJ noted that ICE failed to offer proof that the additional evidence was obtained through grounds independent from the contested seizure, arrest, and detention of the respondent.

The IJ ruled that exclusion of evidence applies to anything that is the fruit of the poisonous tree, regardless of whether ICE acted with an explicit illicit purpose in gathering evidence to exploit the illegal arrest.

The IJ also concluded that identity evidence can be suppressed in immigration court, following cases such as United States v. Olivares-Rangel, 458 F.3d 1104, 1115 (10th Cir. 2006); United States v. Guevara-Martinez, 262 F.3d 751, 754 (8th Cir. 2001); United States v. Oscar-Torres, 506 F.3d 224, 228 (4th Cir. 2007) -- the Supreme Court's explanation of a rule known as the Ker-Frisbie doctrine and how in Lopez-Mendoza, the Supreme Court deemed the immigrant who objected to the government's evidence as having a more substantial claim.

The rulings were covered by the New Haven Independent on June 8, 2009 in a story "ICE Cases Melt Away" by Thomas MacMillan and by the Associated Press on June 8, 2009 in a story "Illegal Immigrants' Rights Were Violated, Judge Says."

Saturday, May 09, 2009

Seventh Circuit Seriously Criticizes Immigration Judge O. John Brahos

In Castilho de Oliviera v. Holder, No. 07-3307 (7th Cir. May 8, 2009), the Seventh Circuit seriously criticized IJ O. John Brahos. In the case, the Seventh Circuit concluded that the immigrant did not receive a fair hearing before a neutral immigration judge because IJ Brahos repeatedly interrupted to ask irrelevant and sometimes inflammatory questions, refused to consider important evidence, and decided the case without seriously engaging with the evidence in the record.

The Seventh Circuit got the impression that the IJ cared little about the evidence and applied whatever rationale he could muster to justify a predetermined outcome.

But there's more -- in footnote 4 at the end of the case, the Seventh Circuit explained that it previously called into question similar behavior by IJ Brahos in other cases, such as factual error, bootless speculation, and errors of logic in Pramatarov v. Gonzales, 454 F.3d 764 (7th Cir. 2006). That same case noted questioning so harsh and rude as to suggest bias. In another case, conduct was unseemly, intemperate, and even mocking, according to the Seventh Circuit in Apouviepseakoda v. Gonzales, 475 F.3d 881 (7th Cir. 2007).

In the view of the Seventh Circuit, "that it continues is inexplicable."

Monday, April 27, 2009

DOJ Announces Assisting The Return Of Those Wrongly Deported

In Nken v. Holder, the Supreme Court made an official acknowledgement of an announcement by the Justice Department that many immigration lawyers would consider a great improvement, if the Justice Department lives up to what it promised to the Supreme Court -- it will provide effective relief to people they deported who then win their appeal after being deported.

In Nken v. Holder, the main issue was what standard to apply when someone has an appeal pending but the government intends to deport the person despite the pending appeal. Under changes by Congress in IRRIRA, this happens often during appeals to circuit courts that challenge a decision by the BIA. It also can come up for certain types of appeals and motions to reopen that do not include an automatic stay of removal.

At page 44 of the brief for the government, the Justice Department announced what appears to be a new rule -- "By policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by, inter alia, facilitating the aliens' return to the United States by parole under 8 USC 1182(d)(5) if necessary, and according them the status they had at the time of removal."

Although the Justice Department portrays it as an established policy, it appears to be a new rule. In reality, people who are deported but then win their appeals frequently have difficulty returning to the United States. Will the Justice Department change its ways and live up to its promise to the Supreme Court or will it break its promise and leave deserving immigrants stranded overseas?

The Justice Department controversial promise even made its way into the Supreme Court's decision:
Aliens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal. See Brief for Respondent 44.
If the Justice Department does nothing other than tell an immigrant stranded in a faraway land that he or she needs to raise thousands of dollars to fly back to the United States, that would not be effective relief. The Supreme Court demands that the government facilitate their return, not leave them stranded and bankrupt overseas. We'll see if the Justice Department lives up to its promise or whether it has essentially misled the Supreme Court.

Wednesday, April 15, 2009

Increased Focus On ICE Illegally Detaining United States Citizens

Andrew Becker and Patrick J. McDonnell of The Los Angeles Times focused on U.S. Citizens Caught Up In Immigration Sweeps on April 9, 2009, noting that ICE keeps no statistics on the number of time it improperly detains and holds United States citizens.

As they note, one problem is that courts today do not see immigration detainees as having a right to government-appointed counsel, so it can be extremely difficult for United States citizens stuck in detention to gather the documents to prove their citizenship. It is even tougher if ICE refuses to acknowledge that they are citizens, which requires putting together proof and a convincing explanation for an immigration judge. Even if you win, ICE can appeal the decision, which requires waiting until the appeal body rules on the case.

One United States citizen even told ICE officers the day they took him in that he was a citizen and they should not be trying to deport him. Even worse, an immigration judge who heard the case by video conference did not believe him and ordered him deported, even though he was a citizen. It took seven months to resolve the issue and for the Northwest Immigrant Rights Project to help the man with an appeal to the BIA to prove what he had known all along -- that he was a citizen who should not be deported.

Seton Hall Law Report Questions New Jersey Police Reporting Immigrants To ICE And Problems With the NJ AG Directive

Bassina Farbenblum and Jessica Jansyn authored a report "Crossing The Line: Damaging Immigration Enforcement Practices by NJ Police Following AG Law Enforcement Directive 2007-3," released in April 2009 by The Center for Social Justice at Seton Hall University School of Law in Newark, NJ. (Professor Baher Azmy and Juanita Lasprilla contributed to the report.)

The report raises serious questions about New Jersey police's actions when reporting immigrants to ICE (Immigration and Customs Enforcement) who are not charged or accused of committing any serious crime nor of DWI, which seems to violate the NJ AG Directive issued in August 2007.

In response to criticisms, the NJ AG insisted that critics put forward evidence of violations and problems, not what the NJ AG dismissed as supposed speculation. The report is a weighty response to the NJ AG's unwillingness to investigate the problems that exist as a result of the Directive.

The report raises serious questions about widespread improper conduct by local police who may be regularly violating the Directive in several ways: by potentially engaging in racial profiling and by potentially violating the Directive by reporting immigrants to ICE who never committed any indictable crime nor DWI. The report urges the NJ AG to make the Directive explicit about prohibiting reporting immigrants who did not commit an indictable crime nor DWI. The potential widespread violations raises the issue of whether one of the many violations should trigger the exclusionary rule in immigration court and compel judges to terminate cases due to local police misconduct.

A major problem that the report did not address is that the NJ AG does not appear to have any mechanism in place with ICE to fix a situation where local police incorrectly report an immigrant to ICE. Even if the NJ AG can ensure that there are no widespread problems and any flaws have been fixed by offering training on the Directive, there will always be a slip-up here or there. Yet the NJ AG has no apparent method to fix a mistake (whether one of many widespread errors or a one-time slip) -- ICE would go ahead and deport an informant or victim that local police improperly reported to ICE. And ICE would go ahead and deport someone that local police illegally reported to ICE by using racial profiling.

The failure to provide any adequate protection for violations of the Directive only strengthens the argument that immigration courts should suppress evidence and terminate cases where there are these local police violations.

Nina Bernstein wrote an article about the issue on April 15, 2009 in an article titled New Jersey Police Misuse Immigration-Inquiry Rule

Tuesday, April 14, 2009

Danbury 11 Lawsuit Against ICE Continues In Court

The Associated Press reported on April 4, 2009 that a federal judge rejected a motion by ICE to throw out a lawsuit that challenged ICE arrests in Danbury, Connecticut. Nine of the plaintiffs were arrested in September 2006 as part of what is known as the Danbury 11. The lawsuit claims ICE violated civil rights and engaged in the unauthorized enforcement of civil immigration violations. ICE argued that the civil rights claims cannot be brought in the federal courts. The federal judge rejected ICE's motion and the cases will continue to be heard.

Monday, April 13, 2009

Additional Poignant Stories of Immigrants Afraid To Help Police Stop Crime

Even more stories about immigrants afraid to help police stop crime. One solution to this public safety problem is to ensure that immigrants who are victims or witnesses to crimes may not be turned over by local police to immigration authorities. In New Jersey, one man called 911, told the police, and helped the police catch the criminals but the local police violated his rights by turning him over to the immigration authorities. Despite numerous pleas for using discretion, ICE has continually fought to deport the man, winning cases with an immigration judge, the BIA, and the Third Circuit. Unless that is stopped, then immigrants have every reason to be afraid to call the police.

David Betancourt wrote for the Washington Post on February 7, 2009, that Death Spurs 911 Drive To Assure Immigrants after Jose Sanchez lay fatally injured for almost 20 minutes on a sidewalk as more than 150 walked by without calling the police. Many were afraid to call the authorities for fear of being asked about their immigration status. It would be too drastic to blame ICE for the death, but their controversial insistence on deporting crime victims and crime witnesses is certainly not helping public safety.

Lisa Miller of WFAE posted a report called Report Critical of Local, Federal Deportation Partnership on February 19, 2009, in which researchers at UNC Law School conclude that allowing local police to enforce immigration law leads to racial profiling and makes people afraid to report crimes. Sheriff Chipp Bailey of Mecklenburg County said he heard concerns that immigrants are more reluctant to contact police.

Jamie Duffy and Tanya Drobness wrote Deportation Fears in Morris County Hamper Efforts To Probe Domestic Abuse in the Star-Ledger on March 9, 2009. While Morristown Mayor Donald Cresitello and Morris County Prosecutor Robert A. Bianchi try to convince domestic violence victims that they should feel free to call police for help, it is hard to convince actual victims that it is safe to call the police. Although the police try to work with the Jersey Battered Women's Service, Francisco DeJesus, president of Dover Multiservices Agency told of hearing horror stories of domestic violence victims afraid to call the police. Fears are well-founded considering ICE's persistent effort to deport a man who called the local police to provide critical help to catch criminals. Even though the man was a crime victim and crime witness, ICE has worked for years to deport him even though the only way they found out about him was due to illegal questioning by the local police after he called 911.