Enforcement, Motions to Suppress

The following are IJ and BIA decisions on motions to suppress and motions to terminate. In each of these cases, the respondents in removal proceedings asked the IJ to suppress or exclude the government’s evidence or otherwise terminate proceedings. These decisions are not meant to be representative of the way in which the agency is deciding these motions, but they do illustrate how individual IJs and BIA panels have analyzed the issues. The Legal Action Center welcomes additional decisions for inclusion on this Litigation Issue Page. Please email us at clearinghouse@immcouncil.org.

IMMIGRATION COURT CASES

• Granted
• Denied

BOARD OF IMMIGRATION APPEALS CASES

IMMIGRATION COURT CASES

Granted

Los Angeles, CA – Granted January 8, 2010
Worksite Raid

• Court finds respondent was prejudiced by government’s violation of 8 C.F.R. §§ 287.8(b) and (c) (pertaining to interrogations and arrest), and therefore terminated proceedings.
• Court suppressed I-213 because Fourth Amendment violations were egregious.

Los Angeles, CA – Granted Jul. 9, 2009
Unreliable I-213

• Late submission of I-213 by government waived opportunity to file it with the immigration court where the government did not provide a reason.
• Court finds that the I-213 is unreliable because it contains unsupported information from an unidentified source and must be excluded.
• Without other evidence, the government could not meet its burden and proceedings were terminated.

Los Angeles, CA – Granted Jun. 18, 2009
Unreliable I-213

• Court found that I-213 was unreliable because it contained inaccurate and unsubstantiated information and was unsigned.
• Without the I-213, the government failed to meet its burden and proceedings were terminated.

Hartford, CT – Granted Jun. 2, 2009
Home Raid

• Respondent’s testimony was found credible.
• Agents’ actions in entering private residence at night, without consent, and refusing to provide an explanation in response to respondent’s questions, violated the Fourth Amendment and were “egregious.”
• IJ gave little weight to affidavits submitted by arresting officers where the government refused to produce officers to testify, thereby violating the right of the respondent to confront and cross-examine the witnesses.

New York, NY – Granted May 28, 2009
Home Raid

• Where respondent was arrested and detained after an early morning raid at his home by armed ICE officers who did not identify themselves, produce a warrant, or state the purpose of their search, and respondent was later questioned for several hours after his request to speak to an attorney was denied, the seizure was an egregious violation of the Fourth Amendment.
• Consular biographical data, obtained using information obtained during unlawful seizure of respondent, is suppressible and does not constitute independent evidence of alienage.

Los Angeles, CA – Granted Feb. 10, 2009
Worksite Raid

• Government actions during a Van Nuys factory raid, where all workers were questioned and detained, was illegal due to lack of individualized suspicion for each worker.
• Right to advisal under 8 CFR §287.3(c) attaches before interrogation and therefore the regulation was violated. Because respondent’s case was prejudiced and the regulation protects a fundamental right, proceedings were terminated.
• Birth certificate obtained using facts gathered as a result of the unlawful detention and interrogation could not serve as independent evidence of alienage.

New York, NY – Granted Jan. 30, 2009
Unlawful Search and Seizure

• Evidence gained from consulate using information which was gained through an unlawful seizure was not independent evidence of alienage.
• Information from I-213 form and biographical data obtained from foreign records does not qualify as independent evidence of removability where the information was obtained using information gathered during the unconstitutional search and seizure.
• By regulation, information provided on asylum application cannot be held to constitute a concession of alienage or deportability.

New York, NY – Granted Jun. 30, 2008
Home Raid

• Search of respondents’ home conducted early in the morning, without a warrant, without stating the officers’ identity or the purpose of the search, and without exigent circumstances was an egregious violation of the Fourth Amendment.
• Documents, including a criminal history report, obtained using respondents’ identity data gained during the raid did not constitute independent evidence of alienage and was therefore suppressible as “fruit of a poisonous tree.”

New York, NY – Granted May 13, 2008
Home Raid

• Where ICE agents entered respondents’ home in the middle of the night without a judicially sanctioned warrant and arrested respondent (notwithstanding their possession of an administrative warrant), the Fourth Amendment violation was egregious.
• The court allowed respondents’ attorney to withdraw admissions of alienage made at a master calendar hearing in the interests of justice.

San Francisco, CA – Granted Mar. 31, 2008
Unreliable I-213

• Without testimony by government witnesses, I-213 was not properly authenticated and could not be admitted; statement of government attorney that form was located in respondent’s “A file” was not sufficient.
• Government failed to establish alienage by independent means and proceedings were terminated.

Seattle, WA – Granted / Denied, Feb. 8, 2008
Traffic Stop

• Without government witnesses, the I-213 contained unsubstantiated hearsay and was suppressed.
• Court refused to draw adverse inferences from respondents’ silence, from their refusal to answer questions, or from the admission of alienage by a close family member; proceedings were terminated.
• Note that this case involved multiple respondents. The IJ ordered one respondent removed based on a confession of alienage.

New York, NY – Granted Oct. 3, 2007
Bus Station Stop

• Where two CBP agents approached a man at a bus terminal and asked immigration status-related questions, the stop was an impermissible investigative detention not based on individualized suspicion.
• Where agents walked past 40 other passengers in a crowded bus terminal and questioned only respondent, of Middle Eastern appearance, stop was based on race and therefore “egregious.”.
• Evidence was excluded and proceedings terminated.

New York, NY – Granted Sept. 6, 2007
Unaccompanied Juvenile

• Failure to provide I-770 (Notice of Rights and Request for Disposition) when apprehending unaccompanied juvenile violated regulation promulgated to protect a fundamental right.
• Proceedings terminated because violation rendered removal proceedings invalid; no showing of prejudice was required.

New York, NY – Granted Jul. 10, 2003
Worksite Raid

• Violation by the INS of an Operations Instruction designed to protect fundamental labor rights required exclusion of evidence obtained during raid.
• Without suppressed evidence, government was unable to carry its burden and the proceedings were terminated.

Denied

Hartford, CT – Denied Apr. 2, 2009
Home Raid

• Respondent could not make prima facie showing of Fourth Amendment violations as a result of inconsistencies and gaps in testimony, including exact method of entry of ICE agents into respondent’s home, and lack of details which might establish egregious conduct.

Seattle, WA – Granted / Denied Feb. 8, 2008
Traffic Stop

• Without government witnesses, the I-213 contained unsubstantiated hearsay and was suppressed.
• However, respondent’s attorney made a concession of alienage during a master calendar hearing; admission constituted independent evidence and that respondent was ordered deported.
• Note that this case involved multiple respondents. The IJ terminated proceedings for the respondents that did not concede alienage.

Hartford, CT – Denied Jan. 31, 2008
Day Laborer Raid

• Undercover local police operation targeting day laborers did not violate the Fourth Amendment because arrests were supported by individualized suspicion based on respondent’s solicitation of work as a day laborer.
• Even if a violation had occurred, the evidence would not be excluded because ICE relied in good faith on evidence gathered by the local police.
• Violations of memoranda, operations instructions, and agency guidelines do not warrant termination of proceedings, even if promulgated to protect a fundamental right, unless the respondent satisfies the “egregiousness” standard from Lopez-Mendoza.

BOARD OF IMMIGRATION APPEALS CASES

Memphis, TN – Oct. 2, 2009
Traffic Stop

• IJ erred in denying motion to suppress by failing to consider whether admission of documents was fundamentally fair, whether respondents were lawfully stopped, or whether respondents established the existence of an egregious violation of the Fourth Amendment.
• Remanded to IJ to revisit the motion to suppress and hold evidentiary hearing.

San Francisco, CA – May 7, 2009
Traffic Stop

• Upheld IJ’s decision that a reasonable officer should have known that the act of reaching into respondent’s pocket and removing his identification card from his wallet during a traffic stop was a violation of the Fourth Amendment.
• Affirmed IJ’s suppression of evidence obtained during stop.