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.

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.
http://www.immigrantjustice.org/component/option,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?