Constitutional Anatomy of an ICE Home Raid, Arrest, Detention and Removal Mary E. Kramer (dl), Miami, FL Labe Richman, New York, NY Maureen Sweeney, Baltimore,

Constitutional Anatomy of an ICE Home Raid, Arrest, Detention and Removal

Mary E. Kramer (dl), Miami, FL

Labe Richman, New York, NY

Maureen Sweeney, Baltimore, MD

2010 AILA Teleconference/Web Conference

© 2010 American Immigration Lawyers Association

The Fourth Amendment

• “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”



ICE Home Raids

• The Fourth Amendment: does it apply?• Judicial vs. Administrative Warrants• Reasonable Suspicion: does it justify a

warrantless entry in the immigration context?

• Consent of an adult resident: the “knock & talk”

• Scope of search: officers’ safety• Persons present other than target



The Regulation

• 8 CFR § 287.8(f)(2) – An immigration officer may not enter into the

non-public areas of a business, . . . a residence, including the curtilage of such residence, or a farm or other outdoor agricultural operation, for the purpose of questioning the occupants of employees concerning their right to be or remain in the United States . . .



The Regulation, cont’d…

• Unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected. When consent to enter is given, the immigration officer must note on the officer’s report that consent was given and, if possible, by whom consent was given.



Stops & Arrests Outside of the Home

• What is a “stop”? When is a person free to leave?

• Arrests vs. Stops• Probable Cause: What is it?• Racial or Ethnic Profiling, English

Proficiency



Roving Traffic Stops

• “only if they are aware of specific articulable facts together with rational inferences from these facts that reasonably warrant suspicion that the vehicles contain aliens that may be illegally in the country”

• Brignoni Ponce quoted in Gonzalez-Rivera



Reasonable Suspicion

• Objective Standard (not subjective impressions of a particular officer)

• Rational inferences must flow from objective facts

• Officer’s experience is important but may not give the officer unbridled discretion; No unsupported intuition allowed.



Factors Supporting Stop Brignoni-Ponce

• Erratic Driving; efforts to evade officers;

• Large number in car; people trying to hide

• Car riding low, laden down

• Type of car has large compartments for spare or third fold-down seat

• Proximity to border, usual traffic patterns



Reasonable Suspicion

• Should not be based on opthalmalogical reactions of the driver

• When a factor and its opposite can both be used to justify a stop, the reason should not be used. (E.G. They stared at the ICE agents v. They avoided looking at the agents).



Bad Faith (Gonzalez-Rivera)

• Actions which officer did know or should have known violated the constitution

• Offers rationales for stop and search which they should have known would not be accepted (In other words, they lied)

• Used race based reason



The Regulation: 8 CFR § 287.8(b)

• Interrogation & detention not amounting to arrest.

• Interrogation is questioning designed to elicit specific information. An immigraiton officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.



The Regulation: 8 CFR § 287.8(c)(2)(i)

• An arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States?



Conduct of Arrest: The Regulation:

8 CFR § 287.8(c)(2)(vii)• The use of threats, coercion, or physical

abuse by the designated immigration officer to induce a suspect to waive his or her rights or to make a statement is prohibited.



Proactive Advice to Clients

• There’s a knock on the door; answer?

• Stop on the street; engage in conversation?



Motions to Suppress

• Does the exclusionary rule apply in removal proceedings?

• Civil vs. Criminal Law

• What if the removal charges also carry possible criminal charges?



INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)

• The exclusionary rule does not generally apply to civil deportation (removal) proceedings. However, the exclusionary rule may be utilized in immigration proceedings (i.e., suppression of evidence) to rectify egregious constitutional violations or widespread Fourth Amendment violations.



Fourth Amendment Links into the Fifth Amendment

Due Process Concerns• Removal proceedings are civil, not criminal, and

the exclusionary rule does not generally apply to them. The United States Supreme Court has left open the possibility that the exclusionary rule may apply where there have been egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.



Defining “Egregious”

• Handcuffing during a warrantless arrest held not to be egregious– Guttierez Berdin v. Holder, No. 09-1465 (7th

Cir. Aug. 19, 2010)



Defining “Egregious,” cont’d

• Entering petitioners' home without a warrant, consent, or exigent circumstances, held to be egregious violation of Fourth Amendment, warranting suppression of I-213 and sworn statement obtained during questioning, following illegal entry.– Lopez-Rodriguez v. Mukasey, 536 F.3d 1012

(9th Cir. 2008)2010 AILA Teleconference/Web Conference



• An apparently unwarranted stop, and subsequent questioning of 17 year old unaccompanied minor, held not to be egregious enough to warrant suppression of evidence, since evidence was in fact reliable. A stop without reason, standing alone, is not egregious, but must also be accompanied by some other elements, such as the use of force, or a particularly lengthy detention. Stops based solely on race are egregious.– Almeida Almara v. Gonzales, 461 F.3d 231 (2nd

2006).




• Arrest of non-targeted fiancee encountered during a protective sweep following consent to enter held not to be Fourth Amendment violation.– United States v. Scroggins, 599 F.3d 433 (5th

Cir. 2010)



Suppression of the “Body”?

• Suppression of the actual body can never be suppressed. – United States v. Olivares-Rangel, No. 04-

2194, 458 F.3d 1104 (10th Cir. 2006)

• What about alternate sources of evidence apart from the illegal stop?

• When will the suppression of evidence be effective?



Fifth Amendment Right Against Self-Incrimination

• Immigration law charges with corresponding criminal violations– False statements (e.g., in a naturalization or

adjustment application) (18 USC § 1001)– Alien Smuggling (8 USC § 1324)– Document fraud (8 USC § 1324c)– Improper entry (8 USC § 1325) – Re-entry after removal (8 USC § 1326)– Importation of aliens for prostitution (8 USC § 1328)



Nuts & Bolts of a

Motion to Suppress



Nuts & Bolts of “Taking the Fifth”

• When to claim

• Client must assert the right

• Motions in limine



Questions & Answers



Documents

Constitutional Anatomy of an ICE Home Raid, Arrest, Detention and Removal Mary E. Kramer (dl), Miami, FL Labe Richman, New York, NY Maureen Sweeney, Baltimore,