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.

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

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.

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.

ICE Factually False Statement In An Appeal

A story by Rick Casey titled "Cold as ICE: Falsehoods" in the Houston Chronicle on April 22, 2008, discussed how ICE counsel James Manning purportedly wrote falsehoods in appealing the case of Mauricio Barragan.

ICE counsel Manning apparently portrayed Mr. Barragan as seeking a waiver of deportation because he would not assist his parents on an occasional basis but the record instead showed that before being detained, he was paying 50% of the mortgage and utilities on the parents' house.

ICE counsel Manning purportedly described Mr. Barragan as quitting school and never holding a job more than 18 months but in fact, he graduated Katy High School and worked at Target for nearly eight years.

ICE counsel Manning purportedly wrote that Mr. Barragan owned no real property but in fact he owned a small house where his parents lived.

We have not seen these statements by ICE counsel Manning or the court record that apparently refutes them. But the journalist Rick Casey says he's seen them and that Mr. Casey thinks ICE counsel Manning has made factually false statements in litigating the case.

On the positive side, when Mr. Manning wrote the appeal brief, he did not include the purportedly false statements that he listed in his reasons for appeal. The BIA denied ICE's appeal. The journalist Rick Casey believes ICE should not have kept Mr. Barragan in detention during the lengthy appeal -- an issue that arises in several cases, where ICE delays someone's release while they file what turns out to be a losing appeal.

ICE Agents Used Racial Profiling And Lied In Baltimore

A series of news articles in the past few months have detailed accusations that ICE agents in Baltimore used racial profiling and then lied about what they had done.

In late January 2009, CASA de Maryland, an immigrant advocacy group based in Silver Spring and with a Baltimore office, release striking footage in which ICE agents targeted people in January 2007 outside a Seven-Eleven store in Baltimore. At first glance, the video shows ICE agents holding a number of Latino men around the store but not questioning or stopping any African-Americans who at the same time went to visit the same store. Advocates explained that ICE agents let African-Americans in the area pass through without any questions and also let a white man who had hired three Latinos for day labor to drive his pickup away without being questioned.

In February 2009, CASA de Maryland released a report from an internal investigation in which ICE agents acknowledged that raids in busy city centers were done to meet quotas. According to CASA de Maryland, the report also shows contradictory information from the sworn declarations of ICE agents involved in the 2007 raid. In addition, the information that ICE gave right after the raid to Senator Ben Cardin was false.

The use of quotas, racial profiling, and lying to Senators if proven would all put together an ugly picture of widespread illegal ICE raids, illegal ICE arrests, and illegal ICE searches. The widespread nature of illegal ICE conduct supports imposing the exclusionary rule to suppress evidence in immigration court for all Fourth Amendment violations.