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Immigration Judge Rules Against ICE, Prevents Deportation

By Jeralyn

In what is believed to be a first for an immigration court in Denver, a judge has found ICE agents broke the law during an immigration raid. The evidence was ordered suppressed and removal proceedings were dismissed.

Andrew Travers at the Aspen Daily News has a good recap of what happened. The press release is here, and the court's 13 page ruling blasting the ICE agents is here (Major thanks to Andrew for getting me the opinion, I had searched everywhere. Even Lexis didn't have it.)

Before 6:00 a.m., on March 24, 2009, ten ICE agents, led by Special Agent Steve Turza, surrounded a cabin believed to house undocumented workers. Shouting that there had been a highway accident outside, the agents went to 4 bedrooms on 3 floors and rousted the sleeping occupants with flashlights and the terrifying news of an accident. The agents claimed they were the police and forced their way into the bedrooms.

Only there was no accident, the ICE agents had no authority to enter the house. 9 sleeping adults and 3 children were roused and rounded up, and 8 of the adults arrested and taken to an immigration detention facility. [More...]

From the press release of Ted Hess, the attorney who argued the case:

In a 13 page opinion, Immigration Judge John W. Davis found that “the agents’ pre-dawn entry coupled with blatant misrepresentation to sleeping residents, conveying terrifying news of an accident” was an egregious violation of the Fourth Amendment. Davis terminated the deportation proceedings against the immigrants.

Davis heard testimony from those inside the house, and from the ICE Agents. He found the testimony of the agents to be unreliable.

Davis said the ICE agents’ testimony as unreliable. In particular, he found their testimony was inconsistent with one another; inconsistent with their written report; and inconsistent with testimony of the immigrants.The judge also criticized the agents for claiming to be the police instead of properly identifying themselves.

The opinion ends with:

The Court finds that the respondents and the respondents' witnesses testified credibly to the events of March 24,2009. As such, the Court found the respondents had demonstrated an egregious violation of their Fourth Amendment rights, and thus met their initial burden. (my emphasis)

Furthermore, the Court finds that the testimony of the ICE agents was inconsistent, and unreliable. In consideration of the testimonial and documentary evidence submitted, the Court finds the Government failed to sustain its burden to justify the unlawful search and seizure. Therefore, the Court hereby suppresses the evidence acquired as a result of the illegal search and seizure, including all statements made during the search and thereafter, all identification documents, all evidence in the Records of Deportable/Inadmissible Alien, and all other evidence derived thereof.

The Government has not produced independent evidence outside of the 1-21 3 to support the factual allegations in the NTA or to sustain the charge of removability. The Court recognizes that evidence from an independent source may be used once an alien has been placed in proceedings. Cervanies-Torres, 21 I&N Dec. at 353. However, the testimony taken at the July 28,2010 hearing was for the limited purpose of determining whether an egregious Constitutional violation had occurred and whether the Government could justify their actions.

As such, the Court believes that any testimony regarding alienage at the suppression hearing is not independent evidence but is, like all of the other evidence obtained by DHS as a result of the home raid, "fruit of a poisonous tree."

Therefore, DHS has failed to meet its burden of establishing the respondents' removability by clear and convincing evidence,... and the removal proceedings must be terminated.

In other words, memo to Ice: You break the law and violate people's rights, you don't get to remove them from the country.

There's more. Not only did the judge find the entry into the home was illegal, he found the ICE agents actions after entering the home, to be illegal.

In the instant case, the agents acted unreasonably in failing to abide by their internal "Knock and Talk" policy, ostensibly established to reinforce constitutional requirements to be adhered to by ICE in conducting home raid operations. Specifically, the evidence in the record indicates that the agents failed to properly identify themselves and instead claimed to be "the police." (DAR, 07/28/10.)

Additionally, the evidence shows that the first agents to enter the home and approach the various bedrooms failed to advise the residents as to the purpose of their visit. (Id.) More significantly, the agents violated the statute in conducting the raid. Pursuant to indicate any of the residents of the home were flight risks. (DAR, 07/28/10.) More importantly, the agents were acting on a tip that was over five months old, an extended amount of time in which they could and should have obtained a warrant. (Id.)(my emphasis) ...., ICE agents must have a reason to believe that the target of their investigation is in the United States without valid status and is likely to escape before a warrant can be obtained for his or her arrest. Here, the agents did not present any evidence that would indicate any of the residents of the home were flight risks. (DAR, 07/28/10.) More importantly, the agents were acting on a tip that was over five months old, an extended amount of time in which they could and should have obtained a warrant. (Id.)

Bottom Line according to the Judge:

When ICE agents enter a home without a warrant or consent, and subsequently create an environment of fear under false pretenses, the Court agrees with the respondents that the Constitutional violation definitively transgressed notions of fundamental fairness and undermined the probative nature of the evidence obtained. See Lopez-Mendoza, 468 U.S. at 1050-51.

As Cardozo Law School wrote in a study released last year, Constitution On Ice, reforms are badly needed. ICE Agents around the country routinely:

• Illegally enter homes without legal authority – for example, physically pushing or breaking their way into private residences.

• Illegally seize non-target individuals during home raid operations --for example, seizing innocent people in their bedrooms without any basis. To Illegally seize individuals based solely on racial or ethnic appearance or on limited English proficiency indicate any of the residents of the home were flight risks. (DAR, 07/28/10.) More importantly,
  the agents were acting on a tip that was over five months old, an extended amount of time in which they could and should have obtained a warrant. (Id.)

I can't even imagine being asleep at 4 am, with kids in the house, and being waken up by these goons.

Memo to Ice: We Are America

Stop the Raids:

Full post as published by TalkLeft on October 31, 2010 (boomark / email).