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."