NJ Federal Lawsuit Demands Documents About Warrantless ICE Raids in NJ

On Monday, January 28, 2008, the Seton Hall Law School's Center for Social Justice and a newspaper called the Brazilian Voice filed a lawsuit in New Jersey federal district court to demand that the Department of Homeland Security release documents about its pre-dawn, warrantless raids of people's homes under the Freedom of Information Act (FOIA).

According to Seton Hall Law School and the Brazilian Voice, ICE agents enter people's homes before dawn without search warrants and use intimidation and on occasion force to question everyone in the homes. ICE agents then arrest people who cannot immediately prove they have legal resident status. They cite ICE statistics that of 2,079 so-called fugitive arrests in 2007 in New Jersey, 87% of the people arrested had no criminal record.

Bassina Farbenblum of the Seton Hall Law Center for Social Justice said "Many victims of the raids believe they were duped or coerced into opening their door to ICE agents, and still have no idea why their family was targeted. Often the individuals arrested in a raid have lived in the U.S. for years, raised U.S.-citizen children, worked hard, paid taxes and established community ties." Scott Thompson of Lowenstein Sandler is representing the Seton Hall Law Center for Social Justice and said that because no official records are available, there is no way to know whether ICE agents had lawful authority or a legitimate basis for entering a home.

On December 14, 2007, the Seton Hall Law Center for Social Justice and the Brazilian Voice filed FOIA requests about 40 suspected raids. So far, DHS apparently rejected the request for expedited processing because the raids are supposedly not an issue of public interest. It is hard to understand DHS's position when warrantless raids are the subject of lawsuits and cases across the country and widespread media publicity. It will be very interesting to see how DHS attempts to defend its position in district court. It is just too bad that it takes a time-consuming federal lawsuit to push DHS to comply with the FOIA law that Congress demands all federal agencies honor.

Associated Press writer Jeffrey Gold printed an article titled "Law school, newspaper seek documents on immigration raids" on January 28, 2008.

A copy of the lawsuit is available at: http://law.shu.edu/csj/iceraids.html

New Haven (CT) Mayor Questions Whether ICE Raid Related To ID Program

New Haven (CT) mayor John DeStefano questions whether an ICE raid in New Haven on June 6, 2007 was retaliation for how New Haven two days before (June 4) adopted an identification card program to offer cards without requiring proof of immigration status.

John Christoffersen of the Associated Press reported in an article "Critics: Immigration Raid Retaliatory" on January 27, 2008 that ICE has repeatedly denied that the timing of the raid had anything to do with the approval of the identification card program.

The Associated Press obtained an email showing that on June 5, ICE officers informed ICE director Julie Myers of the identification card approval and that a raid would draw substantial media coverage. Mayor DeStefano questions whether their concern about the New Haven ID program played a factor in going ahead with the New Haven raids. An article by Victor Zapana in the Yale Daily News on January 28 ("Email raises supspicion of immigration raids' timing") clarifies that Mayor DeStefano does not think the raids were retaliatory.

Yale Law professor Michael Wishnie notes that the email does not prove retaliation but it may cast doubt on ICE statements that the raid had nothing to do with the ID program. ICE spokesperson Paula Grenier told the AP that the email to Julie Myers was merely passing along information and unrelated to the raid's timing.

These developments raise important questions about whether ICE is conducting raids in a proper, unbiased manner. If there are reasons to suspect that ICE is acting improperly, immigration judges should hear evidence on the issue and force ICE to release documents to explain what really happened. Depending on what the judges find out, the immigration judges should then decide whether ICE may legally proceed with removal proceedings or whether to terminate the cases based on a finding of whether ICE acted improperly and illegally in conducting the raids.

Local California Police Need People Afraid Of Deportation To Help Fight Crime

In California, a story in the Inland Valley Daily Bulletin by Andrea Bennett titled "Police ask for neighborhood's help" on January 25, 2008 explained that in Ontario, California, local police are encouraging local residents to call the police with any information to help find a man they suspect was involved with abducting and sexually assaulting a 6-year old girl.

Local residents, though, said some people will not give critical information and tips to the police because they are concerned about being threatened with deportation. Detective Mark Ortiz told the audience that they do not enforce immigration law and that they are there to protect them. Residents, though, are saying they want to help but are afraid of being deported.

In New Jersey, someone afraid of the threat of deportation nevertheless called local NJ police and gave critical information to help the police catch some people involved in alien smuggling. The local NJ police then took the informant and handed him over to the immigration authorities so that they could work on trying to deport the informant!

Even after raising these issues with ICE (immigration and customs enforcement), with an immigration judge, and with the Board of Immigration Appeals, the informant is still threatened and on the verge of being deported from New Jersey. It seems the last hope will be the Third Circuit Court of Appeals or if somehow somebody in the government realizes the mistake of deporting critical, helpful police informants. Until then, well-informant people will have a good reason to be afraid of calling the local police in the United States even if they have crucial information to help protect public safety and fight crime.

That is just the type of short-sighted approach that will hurt national security, impede crime-fighting efforts, and put everyone who lives in the United States in greater danger.

State-Created Danger Doctrine Needed In Immigration Court To Protect Informants

Denise Lavoie of the Associated Press wrote an article on January 21, 2008 titled "Ex-informant fears torture if deported" that highlights the case of Frank Enwonwu and the need for courts to protect informants who have helped the United States against criminals.

Mr. Enwonwu was caught smuggling five ounces of heroin into the United States from Nigeria and then worked with the United States government to be an informand and help them prosecute drug-related crimes. Because of his cooperation, his life is in danger if the United States deports him to Nigeria -- where criminals are waiting to murder Mr. Enwonwu for cooperating with the United States.

ICE is not really disputing how Mr. Enwonwu gave critical assistance to help the DEA catch three drug dealers. ICE is also not really disputing that Mr. Enwonwu would probably be murdered in Nigeria and that is only because the United States successfully convinced him to help fight drug dealing.

ICE has so far successfully argued to the courts that although the state-created danger doctrine is well-established as a Constitutional due process protection if the government acts in a shocking manner to put someone's life at risk, that doctrine somehow should not prevent the United States from deporting someone, even if the deportation would be a shocking action that puts people's lives at risk due to actions they took with the United States government's cooperation.

Meetali Jain at the American University Washington College of Law International Human Rights Law Clinic is quoted as arguing that the United States has a legal obligation to protect Mr. Enwonwu in that type of situation. The First Circuit, though, has disagreed so far.

There are two cases arising out of New Jersey immigration court that raise the same issue -- assuming that the US acts in a shocking manner to put someone's life in danger by deporting them to a country where criminals are waiting to murder them, can a court ever stop a deportation to uphold Constitutional rights? In a case in 2005, the Third Circuit (which covers appeals from New Jersey immigration courts) ruled that it did not believe it could ever stop a deportation even if the government acted in a shocking manner that violated the state-created danger doctrine.

There are now two pending appeals with the Third Circuit urging them either to overturn their 2005 decision as not well-founded or to reach a different conclusion because more recently (after their 2005 decision), Congress ratified the UN Convention against Transnational Organized Crime and in doing so, seemed to emphasize the need to protect informants who help the US government convict members of transnational organized crime.

USCIS Naturalization Supervisor Sentenced For Taking Bribes

According to the New York Times, New York Newsday, and the North County Gazette, former USCIS naturalization supervisor Jimmie Ortega was sentenced this month in federal district court in New York City to 42 months in prison for taking bribes to approve citizenship applications by people who were not able to pass the tests legitimately. The newspapers report that Mr. Ortega used his position as an adjudications officer from 2004 to 2006 to approve at least 20 applications that should have been denied, in exchange for illegal payments.

At the same time that USCIS is drastically increasing its fees, it has an ugly scandal of bribes being paid to USCIS employees to approve applicants who could not pass the citizenship tests. With a supposed focus on fraud by immigrants, it may make sense for more of a focus to be put on USCIS employees and officers to find out whether a small number of them may be ruling improperly on applications they receive.

It makes you wonder whether Mr. Ortega perhaps tried to cover his tracks by finding ways to reject applications that otherwise would have been valid to make up for how he was approving applications that should have been denied. It would be interesting for someone in USCIS to analyze his statistics and see whether that might have happened.

Adjudications officers should live up to a high level of integrity and honesty. It may be hard to analyze afterwards whether an officer used his discretion in a way that is hard to detect later to make it tough for someone to pass a test.

Colorado ICE Agent Accused Of Misusing NCIC Database

According to several newspaper articles, including one by Sara Burnett of the Rocky Mountain News titled "Inquiry has ICE agent in 'shock,'" published January 15, 2008, ICE agent Cory Voorhis is accused of illegally accessing the FBI database known as the NCIC (National Crime Information Center) database and providing information to help Republican Bob Beauprez's gubernatorial campaign against Democrat Bill Ritter.

Remember, people are presumed innocent until proven guilty, so there is a criminal prosecution against Mr. Voorhis for three misdemeanors (exceeding authorized access to government computers), which has a maximum penalty of three years in prison or a $300,000 fine. But that does not mean Mr. Voorhis is guilty because he is presumed innocent until there is a finding of guilt, which has not happened -- the criminal case is ongoing.

The NCIC database has been heavily criticized for having inaccurate information and for containing information that is independent from criminal charges and convictions. Putting that aside, this news story raises another issue with the NCIC database -- illegal access to it by ICE agents for unauthorized purposes.

According to the news article, the Republican candidate's campaign wanted to attack the Democratic candidate for being soft on crime, particularly for giving certain plea bargains to defendants that the Republicans thought were undocumented immigrants. But to make that attack, the Republicans needed confirmation the particular defendants were undocumented immigrants. In the criminal case, Mr. Voorhis made a suppression motion and as part of that said he contacted the Republican campaign to tell them "what to look for" and then later got a request to look up eight people. Mr. Voorhis testified that he refused to look up whether the eight people committed other crimes but did offer to look up whether they were undocumented immigrants.

Mr. Voorhis is in shock that he is being prosecuted for what he did and believes that he only shared a limited amount of information that was public information.

Although Mr. Voorhis is presumed innocent until proven guilty, this case raises an important question about illegal conduct by ICE agents to violate people's Constitutional rights. If that conduct is widespread -- an issue being litigated around the country -- then the Supreme Court has indicated that the courts may conclude that the exclusionary rule should apply in immigration court to suppress all illegally obtained evidence. This broader issue is part of numerous cases around the country, including a pending case with the Third Circuit Court of Appeals.

Update (April 2008): a jury found Mr. Voorhis not guilty of the two misdemeanors that he was charged with, arising from accessing the confidential NCIC database allegedly to help a 2006 political campaign. When a jury rules that someone is not guilty, it does not have to explain its decision. News reports, though, explain that Mr. Voorhis's legal defense admitted that the ICE agent accessed the NCIC database to obtain information about certain people who received plea bargains. The defense argued that the ICE agent had a legitimate reason for accessing the NCIC database -- to force change in a bad criminal justice policy. The defense argued that the ICE agent's job description includes investigations that "led to change in laws."

According to the Rocky Mountain News, the foreman of the jury said in an interview that he believed the ICE agent was doing an investigation that could lead to a change in the law when he accessed the NCIC database. And that the ICE agent would be justified to change policy and procedures and to change court decisions.

Beyond the criminal charges, the outcome is unclear -- he remains on unpaid administrative leave and must take certain actions to try to get his job back.

Federal Judge Orders Judicial Review of Constitutional Rights In Government's Deportation Efforts

On January 10, 2008, Judge Thomas Vanaskie in the federal district court in the Middle District of Pennsylvania abruptly rejected the Bush administration's arguments by insisting that the federal courts have the power and obligation to ensure people's Constitutional rights even when the government is trying to deport someone.

In the case, Khouzam v. Hogan, No. CV-07-0992 (M.D. Pa. Jan. 10, 2008), Sameh Khouzam with the help of the ACLU desperately rushed to court to urge the judge to stop the government from deporting him back to Egypt, where the courts had previously concluded he would be tortured. Under the Convention Against Torture and basic international human rights law, Congress and the United States have agreed that it would never deport anyone to a country where the person would be tortured. Mr. Khouzam fled Egypt in 1998, fearing as a Christian that he would be tortured. In 2004, the federal courts ruled that he would be tortured and granted him relief under the Convention Against Torture.

The story gets murky in 2006 -- in August 2006, someone in the State Department wrote a letter that at some point they had received assurances from Egypt that suggested Mr. Khouzam would not be tortured if the US sent him back there. In January 2007, DHS decided to terminate CAT relief for Mr. Khouzam, but did not tell him yet. They worked for a few months on travel arrangements so when Mr. Khouzam appeared for one of his routine check-ins with DHS in May 2007, they shocked him by detaining him and telling him they would deport him within 72 hours(!) The ACLU rushed to court and the judge agreed to block the deportation so he could study the issues.

In the January 2008 decision, the judge rejected the government's most dangerous argument -- that no judge could ever review the adequacy of the diplomatic assurance that Egypt gave because as long as DHS thought it was good enough, nobody else can review that decision even if the review would be needed to safeguard basic Constitutional rights. Under that argument, the government could trample on people's essential Constitutional rights by pointing to executive power and discretion. In the case, DHS refused to let the judge see the diplomatic assurances and told the judge to butt out of the determination that the assurances (whatever they heck they might have been) were absolutely sufficient.

The judge pointed out gaping holes in the government's argument: (1) Congress insisted on judicial review of CAT relief so why would it force judges to avoid reviewing when DHS tries to take away someone's CAT relief? (2) Just because the topic happens to touch on foreign affairs does not automatically insulate it from judicial review. (3) the Fifth Amendment demands judicial review of government actions that deprive people of their life, liberty, or property. (4) even though the government has plenary power over immigration law, the courts always have the power to ensure it complies with constitutional limitations.

These last two points are extremely important to preserve judicial review over questionable decisions by the government, DHS, and ICE in deportation matters. They are also entwined in two Third Circuit appeals that urge the courts to exercise their powers to make sure that the government complies with constitutional limitations when they seek to deport an immigrant to his certain death in a way that shocks the conscience due to a risk that the government itself created. The appeals involve the state-created danger doctrine -- especially where the government convinces an immigrant to testify against organized crime, putting the immigrant in danger for the government's benefit, and then shockingly next tries to deport the immigrant to his certain death to the country where the criminals are waiting to murder him.

We'll see how the Third Circuit rules on the state-created danger doctrine. Together with the Khouzam case, they raise important issues on basic Constitutional protections and the need for the courts to exercise basic review -- despite the government's surprising arguments that they can do anything they want (even something unconstitutional) and the courts should have no power to stop them.

Congratulations to Mr. Khouzam and his attorneys -- Amrit Singh, Judy Rabinovitz, Lee Gelernt, Alice Clapman (ACLU Immigrants' Rights Project), Vic Walczak, Mary Catherine Roper (ACLU Pennsylvania), and Morton Sklar (World Organization for Human Rights USA)!