A Rare Win For Immigrants
Conn. judge finds constitutional problems in raids by federal agents
By Christian Nolan
The Connecticut Law Tribune, June 15, 2009
http://www.ctlawtribune.com/getarticle.aspx?ID=34058
It was exactly two years ago that Immigration and Customs Enforcement Agents rounded up 31 undocumented immigrants in the New Haven area.
There was speculation that the highly publicized raid was retaliation for a New Haven program that made ID cards available to illegal immigrants so they could open bank accounts and access other services. ICE officials denied the retaliation allegations and said the raids were lawfully conducted.
Now, at least in some cases, a federal immigration judge has reached the opposite conclusion. The efforts of a team of lawyers and Yale Law School students have scored victories for five immigrants, at least temporarily halting their deportation proceedings.
The immigration judge ruled that the government 'egregiously violated' their 4th Amendment rights of the immigrants by entering their homes forcibly without warrants.
The decision, according to Connecticut immigration law experts, was rare due to the tougher legal standards in immigration court and reinforces that even undocumented residents have civil rights, especially when minding their own business inside their home.
'I think it makes everybody sit and take notice and think about the Constitution again,' said Danbury immigration attorney Cynthia Exner. She thinks the decision could influence the way ICE officials conduct their raids in the future.
According to one of the five written decisions by federal immigration Judge Michael W. Straus, which are factually similar, ICE officers entered the defendants home at 6:30 a.m. without consent and asked him to come with them. Other armed agents stayed in the front and back doorways.
The man had been living in the country for 15 years and had been in New Haven the past eight years with his wife, their two children and a cousin.
The man alleges that he opened the door a crack and ICE officers pushed the door open and went inside. The cousin was still asleep in bed when agents went in. The father testified that agents scared his 10-year-old daughter and when they took him into custody they told him to 'say goodbye to your family.'
'We are not addressing a claim made by an alien seeking admission into the country, outside of a restaurant, driving on the street, or at a workplace site,' wrote Straus. 'We are addressing a claim that immigration agents forcefully entered a private home without a warrant, without probable cause, and without consent.
'The court must examine the actual conduct of the immigration agents involved in the violation, including their physical entry into [his] home and their subsequent encroachment into his bedroom,' continued Straus.
'…The agents unlawful early morning entry into a private residence strongly implicates unreasonable unlawful conduct,' Straus concluded. ICEs public affairs department did return phone calls by press time.
Hard To Win
Anant Saraswat, one of the Yale students who worked on the motions to suppress the evidence in these cases, was pleased with the decision. He explained that in immigration court, in order to suppress evidence, an attorney has to show that not only was there a constitutional violation, but that it was an egregious violation.
Justin T. Conlon, an attorney for The Immigration Law Offices of Michael Boyle in North Haven, agreed that immigration courts have long allowed ICE officials to bend and break the rules so long as the constitutional violations are not 'egregious.'
Conlon explained that constitutional challenges for failing to read defendants their Miranda rights or entering a home without a warrant are typically not viewed as egregious enough by immigration judges to prompt an evidentiary hearing.
'To my knowledge, this is the first time Judge Straus has granted motions to suppress,' Saraswat said. 'We have seen motions to suppress granted by various circuit courts and a few by the Board of Immigration Appeals. This is, in general, a pretty rare remedy. The case law makes it pretty hard to win a suppression case. We were pretty excited that we actually did.'
To be sure, not all the legal challenges made in the wake of the New Haven raid have been successful. The immigrants legal counsel filed motions to suppress evidence in 17 cases. They won five, lost 11 and one is still to be decided by Straus.
Saraswat said he and his colleagues have filed appeals in 10 of the 11 cases they lost; the other immigrant was granted asylum. The students will know by the end of the month if the government plans to appeal the cases Yale won.
Saraswat said all of the undocumented aliens caught in the New Haven raid were arrested inside their homes, but Judge Straus did not find egregious violations in all of the cases.
'I think the main difference between the cases that we won and the ones we didnt win was whether or not Judge Straus found clear evidence of forcible entry,' said Saraswat, who graduated from Yale Law School in May and is studying for the bar exam in Boston. 'We presented evidence of forced entry and illegal arrest in all cases, but I guess he found our evidence more convincing in the five cases that we won.'
Exner, the Danbury immigration lawyer, said the decision reinforces the expectation of privacy in ones home, even in a court where constitutional violations are harder to prove.
'A big part of [the decision] is that it was in a private residence as opposed to a restaurant, a parking lot,' where there would be little question about the authority of ICE agents to detain undocumented aliens, said Exner. 'None of us want [law enforcement authorities] to have unfettered access to our homes, especially when you have children there, without going through proper channels and getting a warrant and presenting credible information to a judge.'
Exner explained that the defendants cleared by Yale may not be out of the woods yet with regard to ICE officials. She cautioned that the agents could still come up with independent information, not gathered from the two-year-old arrests, which could result in new deportation proceedings.
But, she said, at least this ruling enables the immigrant to start the process of becoming legal.
