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?

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.

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."

Seventh Circuit Seriously Criticizes Immigration Judge O. John Brahos

In Castilho de Oliviera v. Holder, No. 07-3307 (7th Cir. May 8, 2009), the Seventh Circuit seriously criticized IJ O. John Brahos. In the case, the Seventh Circuit concluded that the immigrant did not receive a fair hearing before a neutral immigration judge because IJ Brahos repeatedly interrupted to ask irrelevant and sometimes inflammatory questions, refused to consider important evidence, and decided the case without seriously engaging with the evidence in the record.

The Seventh Circuit got the impression that the IJ cared little about the evidence and applied whatever rationale he could muster to justify a predetermined outcome.

But there's more -- in footnote 4 at the end of the case, the Seventh Circuit explained that it previously called into question similar behavior by IJ Brahos in other cases, such as factual error, bootless speculation, and errors of logic in Pramatarov v. Gonzales, 454 F.3d 764 (7th Cir. 2006). That same case noted questioning so harsh and rude as to suggest bias. In another case, conduct was unseemly, intemperate, and even mocking, according to the Seventh Circuit in Apouviepseakoda v. Gonzales, 475 F.3d 881 (7th Cir. 2007).

In the view of the Seventh Circuit, "that it continues is inexplicable."

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.

Congressman Conyers Questions ICE Illegal Arrests and Beatings

A story on March 28, 2009 by Gregg Krupa of The Detroit News titled Conyers Rips Deportations describes how over 1,200 people including three members of Congress called for immigration reform at a rally on March 27 as part of a 20-city tour that highlights the failure of immigration reform and the harm caused by increased enforcement.

Congressman John conyers said that there are "ICE people who are beating up people and arresting people for no good reason." He also said that "We ought to take them out and check them out, right off the bat. And guess what? That is exactly what I am going to do in hearings beginning on Wednesday. Congressman Conyers is chairman of the House Committee on the Judiciary.

This would not be the first Congressional hearing about illegal ICE raids and illegal ICE conduct. The growing proof of widespread Fourth Amendment violations by ICE bolsters the legal argument to suppress evidence by using the legal test that the United States Supreme Court announced in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984)! That decision focused on INS policies in 1984 -- something very different from ICE policies today.

Several lawyers are raising this argument in immigration court, with the BIA, and with circuit courts.

Man Sentenced For Taking Bribes While A Senior ICE Official

According to an Associated Press story, federal district court judge Julian Abele Cook, Jr. sentenced Roy Bailey to three years and one month in prison for taking bribes while the senior official in Detroit for detaining and transporting immigrants for ICE (and for INS before it split up into new agencies including ICE). He was the senior official in Detroit from 1999 to 2004.

The newspaper reports explain that Mr. Bailey admitted accepting gifts including $5,000 in meals and $5,000 in casino chips and in exchange for bribes, he would delay deportation proceedings and release certain detainees.

We hear much about the need to crack down on fraud in the immigration process. I wonder whether people who worry about immigration fraud are exaggerating the problem, but this news story suggests perhaps there should be a reason to be concerned about fraud by immigration officials. However, just because one senior official was found guilty and sentenced to jail does not mean everyone at ICE is doing something wrong.

Florida Woman Helping Police Investigate Crime Turned Over For Deportation

Rita Cote is an immigrant in Tavares, Florida who spent two weeks in detention and is now threatened with deportation after helping the police investigate a crime.

Tavares Police came to a house to investigate a criminal issue -- an altercation between Rita Cote's sister and the sister's boyfriend. She was trying to help the police by giving language interpretation between the police and her sister. The police ended up not arresting the sister's boyfriend and instead arresting Rita Cote, the woman helping them investigate the possible crime. They held Ms. Cote (who is married to a United States citizen and the mother of three United States citizen children) for more than a week before handing them to ICE, which continued to hold her in detention.

ICE released her after around two weeks after the local police first arrested her and ICE started a case in immigration court in Orlando, Florida. News coverage of the case include a story by Victor Manuel Ramos in the Orlando Sentinel titled Immigration Mother Returns To Family While Deportation Case is Heard, which was printed on March 5, 2009.

The case is reminiscent in some ways of a New Jersey immigrant who called local police and successfully helped the local police investigate a crime and catch the criminals, but then turned the informant over to ICE for deportation. In that case, ICE pursued deportation and obtained a deportation order, which ICE continued to pursue before the Board of Immigration Appeals and the Third Circuit. ICE continues its efforts to deport the crime informant in New Jersey, despite requests to consider how local police turned over a crime informant.

It appears from the NJ case that ICE actively seeks to deport crime witnesses and crime informants. We'll see from the Florida case whether ICE continues to try to deport immigrants who help the police investigate crimes. There is a good reason that immigrants are afraid to call the police to help them fight crime and catch criminals.

Newark, NJ Immigration Court Closed March 2, 2009 Due To Weather

I believe that the immigration court in Newark, NJ is closed on Monday, March 2, 2009 due to weather. It is a weather closure because of snowy conditions today.