Michael J. Wishnie, Supervising Attorney
Anne Lai, Supervising Attorney
Jason Glick, Law Student Intern
Danielle Lang, Law Student Intern
Trudy Rebert, Law Student Intern
Sirine Shebaya, Law Student Intern
Matthew Vogel, Law Student Intern
Jerome N. Frank Legal Services Organization
Yale Law School
P.O. Box 209090
New Haven, CT 06520-9090
Counsel for Respondent
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
HARTFORD, CONNECTICUT
______________________________
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)
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M- S- C- L)
)
In removal proceedings
)
______________________________)
In the Matter of:
Immigration Judge Philip Verillo
File No.: XXX XXX XXX
Date: March 10, 2012
Next hearing: May 3, 2012 at 10:30 a.m.
BRIEF IN SUPPORT OF RESPONDENT’S MOTIONS FOR TERMINATION OF
REMOVAL PROCEEDINGS, SUPPRESSION OF EVIDENCE, AND
OBJECTION TO THE ENTRY OF A FINAL ORDER OF REMOVAL
***
FACTS AND PROCEEDINGS
By issuing a Form I-247 Notice of Detainer to local authorities, ICE caused
Respondent, Mr. M- S- C- L-, a thirty-two year-old resident of Meriden, Connecticut, to
be detained from October 8, 2011 until October 12, 2012, solely on the basis of an
immigration detainer and without any judicial warrant.
Respondent was initially stopped by the Meriden Connecticut Police Department
on the evening of October 6, 2011, for a minor traffic infraction. During the course of the
stop, the Meriden police officer became upset at Respondent because he did not speak
English. See Ex. B, Decl. of Mr. M- S- C- L-, ¶ 5. The officers gestured and laughed at
him, and Respondent felt that he was targeted because of his Latino appearance. See id.
at ¶¶ 8, 10. Respondent was eventually arrested on suspicion of traffic infractions and a
misdemeanor violation. The prosecutor later entered a nolle prosequi on the misdemeanor
charge.
The next day, October 8, 2011, the Superior Court, Geographical Area 7 at
Meriden ordered Mr. C- L- released on his own recognizance subject to a promise to
appear. Lawful authorization for the detention of Mr. C- L- thus ended on October 8,
2011. Despite the lack of probable cause to believe that Mr. C- L- had committed any
further crime, ICE instructed local authorities to hold Mr. C- L- in custody pursuant to an
immigration detainer. The issuance of the Form I-247 on October 7, 2011 caused New
Haven Correctional Center employees to continue to detain Mr. C- L-, without
undertaking any probable cause hearing or presenting sworn evidence establishing
probable cause to a neutral magistrate, until October 12, 2011. ICE’s issuance of the
immigration detainer was the sole reason the Connecticut authorities continued to hold
Mr. C- L- beyond October 8, 2011, when the Superior Court ordered him released.
It was only on October 12, 2011, after Mr. C- L- had been held at their request
without a warrant or probable cause for five days, that ICE arrived to take him into
custody, interviewed Mr. C- L- and issued a Form I-862, Notice to Appear, against him.1
See Ex. C, Form I-862, Notice to Appear. That same day, and for the first time, ICE also
served Respondent with an arrest warrant. Respondent requested a hearing before the
Immigration Court to determine his right to stay in the United States. See Ex. D, Form I826, Notice of Rights and Request for Disposition. Supervisory Deportation officer
David Ostrobinski then released Mr. C- L- on his own recognizance, with no requirement
of bond. See Ex. E, Form I-286, Notice of Custody Determination.
On October 21, 2011, the Connecticut state prosecutor declined to pursue the
misdemeanor charge and one of the traffic charges against Mr. C- L-. Mr. C- L- pled
guilty to the two remaining minor traffic infractions, and agreed to pay a total fine of
$125, fully resolving all charges against him.
Mr. C- L- appeared before this Court for a Master Calendar hearing on October
31, 2011, at which time he asked for a continuance to prepare his case. He appeared for a
second Master Calendar hearing on December 5, 2011, at which time he filed pleadings
denying the charges of removability and declining to concede or deny the factual
allegations against him, choosing instead to invoke his Fifth Amendment privilege
against self-incrimination and to put the government to its burden. Respondent appeared
1
The Notice to Appear alleges that Respondent is a citizen of Ecuador and charges him
with a violation of INA §§ 212(a)(6)(A)(i) and 212(a)(7)(A)(i)(I).
for a third Master Calendar on February 13, 2012, at which time, through his counsel, he
objected to the entry into the record of evidence presented by the government, numbered
Exhibits 3, 4, and 5 for identification purposes only.2 At the February 13, 2012 Master
Calendar, this Court ordered a briefing schedule so that Respondent could file this
Motion to Terminate Proceedings, Suppress Evidence, and Object to the Entry of a
Removal Order.3
ARGUMENT
***
THIS COURT SHOULD GRANT RESPONDENT’S MOTION TO
SUPPRESS ALL INFORMATION OBTAINED AS A RESULT OF
ICE’S UNLAWFUL ISSUANCE OF AN IMMIGRATION DETAINER.
II.
This Court should suppress all information obtained as a result of ICE’s unlawful
issuance of a detainer on November 7, 2011, including (1) the Form I-213, Ex. 3 for
identification purposes only; (2) the Meriden police report, Ex. 4 for identification
purposes only; and (3) the Superior Court resolution of charges, Ex. 5 for identification
purposes only, as the fruit of Respondent’s unlawful detention, for two independent
reasons.
First, by issuing the detainer and failing to implement any safeguards to protect
Respondent’s rights, ICE egregiously violated Respondent’s Fourth Amendment right
against illegal seizures, his Fifth Amendment right to due process and fundamental
2
Exhibit 3 for identification purposes only is Form I-213, Record of
Deportable/Inadmissible Alien; Exhibit 4 for identification purposes only is the Meriden
Police Department Incident Report; Exhibit 5 for identification purposes only is the State
of Connecticut Superior Court disposition.
3
Mr. C- L- has also appeared as requested for check-ins at ICE Enforcement and
Removal Operations on November 14, 2011, December 5, 2011, and February 13, 2012.
fairness in immigration proceedings, and his Tenth Amendment right to be free from the
arbitrary exercise of government power. The “characteristics and severity” of ICE’s
violations demonstrate that those violations were egregious, because ICE made no
attempt to comply with the clearest of constitutional requirements. See Almeida-Amaral
v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006). Suppression of evidence in immigration
proceedings is the appropriate remedy when ICE’s egregious violations of an individual’s
constitutional rights transgress notions of fundamental fairness. See id.; infra Sections
III.A-B.
Second, ICE is engaged in “widespread,” ongoing constitutional violations. INS
v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984). The Supreme Court has made clear that
the exclusionary rule may be an appropriate remedy in such cases. See id; see also
Melnitsenko v. Mukasey, 517 F.3d 42, 47 (2d Cir. 2008) (noting that under LopezMendoza, the exclusionary rule may apply where violations are widespread, but finding
that claim unexhausted).
The agency issues several hundred detainers each day
nationwide under circumstances similar to Respondent’s case, see Ex. H, DHS FY 2012
Budget-in-Brief at 79, causing widespread violation of individuals’ fundamental rights.
The frequency of ICE’s Fourth, Fifth, and Tenth violations through the issuance of use of
detainers warrants suppression of evidence here. See infra Section III.C.
Accordingly, the I-213, the Meriden Police Report, and the Superior Court
resolution of charges should each be suppressed as “fruit of the poisonous tree.” See
Wong Sun v. United States, 371 U.S. 471, 487-88 (1963); infra Section III.D.
A.
This Court Should Suppress All Evidence Obtained Subsequent to
ICE’s Issuance of a Detainer Against Respondent Because ICE
Egregiously Violated Respondent’s Fourth Amendment Rights
Under binding Second Circuit law, the government’s evidence in immigration
proceedings should be suppressed where, as here, ICE has caused an egregious violation
of Respondent’s fundamental constitutional rights. Almeida-Amaral, 461 F.3d at 235. In
Almeida-Amaral, the Second Circuit applied the suppression doctrine articulated by the
Supreme Court in INS v. Lopez-Mendoza, and confirmed that the exclusionary rule
applies in immigration proceedings if the record establishes “that an egregious violation
that was fundamentally unfair had occurred.” Id. Respondent’s case meets both prongs
of the Almeida-Amaral standard for suppression of evidence, as: 1) ICE violated
Respondent’s Fourth Amendment rights, and 2) ICE’s violation was “egregious.”
As discussed above, ICE’s issuance of the detainer against Respondent violated
his Fourth Amendment rights in three ways. First, ICE violated the Fourth Amendment’s
prohibition on unreasonable seizures, by causing Respondent’s detention without any
basis in law. Second, ICE caused Respondent to be detained without probable cause or a
probable cause determination.
Third, ICE’s failure to provide Respondent with a
probable cause determination before a neutral magistrate within 48 hours of issuing the
immigration detainer violates the clear rule set forth in County of Riverside v.
McLaughlin, 500 U.S. 44 (1991). See supra Section II.D.1.
The “characteristics and severity” of ICE’s Fourth Amendment violations were
“egregious,” and squarely fit the circumstances contemplated in Almeida-Amaral in
which suppression is warranted. See 461 F.3d at 235-36. In that case, the Second Circuit
noted that suppression “may well be proper where [a] seizure itself is gross or
unreasonable in addition to being without a plausible legal ground, e.g., when the initial
illegal stop is particularly lengthy . . . .” Id. at 236. ICE’s seizure of Respondent was not
only grossly unreasonable, since it had no basis in law; ICE’s seizure of Respondent was
also so prolonged that it far exceeded what can reasonably be understood as a “lengthy”
“stop,” outlasting even McLaughlin’s 48-hour limitation on the length of an arrest
without a hearing. By “transgress[ing]” the clearest of “fundamental” constitutional
mandates with impunity, ICE committed egregious violations of Respondent’s rights.
B.
This Court Should Suppress All Evidence Obtained Subsequent to
ICE’s Issuance of a Detainer Against Respondent, Because ICE
Egregiously Violated Respondent’s Fifth and Tenth Amendment
Rights
ICE’s egregious violations of Respondent’s clearly established Fifth and Tenth
Amendment rights likewise warrant suppression of all evidence ICE obtained subsequent
to its issuance of a detainer against Respondent.
The exclusionary rule is available in immigration proceedings for egregious
violations of fundamental rights, including the core liberties protected by the Fifth and
Tenth Amendments.
See Lopez-Mendoza, 468 U.S. at 1050-51 (exclusionary rule
available for “egregious violations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness”) (emphasis added); Almeida-Amaral, 461
F.3d at
234 (“Lopez-Mendoza
authorizes
exclusion for violations
that are
egregious . . . because the violation transgress[ed] notions of fundamental fairness”)
(internal citation omitted). Because ICE subjected Respondent to egregious Fifth and
Tenth Amendment violations that implicated his fundamental rights, this Court should
grant Respondent’s motion to suppress on these additional bases.
The Supreme Court has made clear that the Fifth Amendment’s due process
requirements “embod[y]” “fundamental constitutional principles.”
United States v.
Jackson, 368 F.3d 59, 65 (2d Cir. 2004); see also Zadvydas v. Davis, 533 U.S. 678, 690
(2001) (“Freedom from imprisonment . . . lies at the heart of the liberty that Clause
protects.”). Respondent’s Fifth Amendment liberty interest therefore fits squarely within
the scope of fundamental rights for which egregious violations merit suppression under
Lopez-Mendoza. See also Lopez-Mendoza, 468 U.S. at 1050-51.
As described above, ICE violated Respondent’s Fifth Amendment rights in at
least three ways: first, by denying Respondent notice of the basis for his detention, his
right to counsel, and the opportunity to contest the validity of his detention; second, by
failing to comply with statutory and regulatory requirements designed to protect
Respondent from deprivations of liberty without due process of law, without a
constitutionally adequate purpose; and third, by causing a deprivation of Respondent’s
liberty through a standardless procedure not governed by any threshold probable cause
requirement and without avenue for administrative appeal. See supra Section II.D.2.
The “characteristics and severity” of ICE’s violations of Respondent’s Fifth
Amendment rights rose to the level of egregiousness for which Almeida-Amaral
contemplates suppression. ICE’s Fifth Amendment violations exceeded the severity of
failing to provide inadequate process before depriving Mr. C- L- of his liberty; instead,
ICE provided him with no process whatsoever, and made no attempt to comply with the
Fifth Amendment’s basic requirements. By flagrantly violating the clear contours and
“essential principle[s]” of the Fifth Amendment, see Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985), ICE’s issuance of the detainer against Respondent
constitutes an egregious Fifth Amendment violation for which suppression is appropriate.
ICE’s Tenth Amendment violation similarly warrants suppression. The Tenth
Amendment protects fundamental freedoms, by “protect[ing] the liberty of the individual
from arbitrary power. When government acts in excess of its lawful powers, that liberty
is at stake.” Bond v. United States, 131 S. Ct. 2355, 2364 (2011); see also New York v.
United States, 505 U.S. 144,181 (1992) (noting that the Tenth Amendment “divides
authority between federal and state governments for the protection of individuals”).
Tenth Amendment rights are therefore “liberties” the violations of which “transgress
notions of fundamental fairness.” See Lopez-Mendoza, 468 U.S. at 1050-51; AlmeidaAmaral, 461 F.3d at 234.
By requiring the Connecticut Department of Correction to hold Respondent
beyond the period of Respondent’s authorized detention based on state law, ICE
impermissibly commandeered state resources in service of a federal program. See supra
Section II.D.3.
ICE’s Tenth Amendment violation meets the Lopez-Mendoza
egregiousness standard because of the danger that “[t]he power of the Federal
Government would be augmented immeasurably if it were able to impress into its
service—and at no cost to itself—the police officers of the fifty States,” Printz, 521 U.S.
at 922. It is difficult to envision a more serious pattern of constitutional violations than
this type of exercise of “arbitrary” government “power,” resulting in widespread
deprivations of individual liberty. See Bond, 131 S. Ct. at 2364; Almeida-Amaral, 461
F.3d at 236.
C.
This Court Should Suppress All Evidence Obtained Subsequent to
ICE’s Issuance of a Detainer Against Respondent Because ICE’s
Fourth, Fifth, and Tenth Amendment Violations are Widespread
This Court should grant Respondent’s motion to suppress all evidence secured by
ICE as a result of the issuance of the detainer, for the independent reason that ICE’s
policy, practice, and custom of issuing detainers gives rise to “widespread violations”.
See Lopez-Mendoza, 468 U.S. at 1050; Almeida-Amaral, 461 F.3d at 234. In LopezMendoza, the Supreme Court left open the availability of suppression where there exists a
pattern of constitutional violations by ICE, even where those violations did not rise to the
level of being “egregious.” 468 U.S. at 1050. In light of ICE’s routine issuance of
immigration detainers in violation of the Fourth, Fifth, and Tenth Amendments—a
practice that also caused an egregious violation of Respondent’s fundamental rights, see
supra Section III.B—this Court should suppress all evidence obtained by ICE as fruit of
that unlawful issuance of a detainer.
ICE’s regular issuance of immigration detainers in violation of the Fourth, Fifth,
and Tenth Amendments is well documented. DHS’s own data indicate that in fiscal year
2010, ICE issued 239,523 detainers through the Criminal Alien Program. See Ex. H,
DHS FY 2012 Budget-in-Brief at 79.
Numerous studies have documented the prevalence of the constitutional violations
described above.
See supra Section I.D.1; Ex. R, National Immigration Forum,
Backgrounder on Immigration Detainers (noting that detainers are “widely . . . misused”
by ICE).
The frequency of the constitutional violations caused by ICE’s issuance of
detainers is also documented through habeas petitions and other actions filed by
individuals detained without a warrant and in excess of the 48-hour McLaughlin rule.
See, e.g., Petition for Writ of Habeas Corpus, Brizuela v. Feliciano, No. 3:12-cv-00226
(D. Conn. filed Feb. 13, 2012), ECF No. 1, at ¶ 30 (noting that “on a single day in
December 2011 . . . there were approximately 130 pretrial detainees and approximately
360 post-conviction detainees in [Connecticut Department of Correction] custody with
immigration detainers lodged against them”); Moreno v. Napolitano, No. 11-05452 (N.D.
Ill. filed Aug. 11, 2011); Galarza v. Szalczyk, No. 10-cv-06815-JKG (E.D. Pa. filed Nov.
19, 2010); Ramos-Macario v. Jones, No. 10-00813 (M.D. Tenn. filed Aug. 30, 2010);
Bernabe v. Kronberg, 10-2289 (S.D. Fla. dismissed Sept. 17, 2010); Rivas v. Martin, No.
10-197 (N.D. Ind. dismissed Sept. 6, 2011); Quezada v. Mink, No. 10-879 (D. Col.
dismissed Jun. 3, 2011); Fla. Immigrant Coal. v. Palm Beach Cty. Sheriff, 09-81280
(S.D. Fla. dismissed Jan. 25, 2011); Cote v. Lubins, No. 09-0091 (M.D. Fla. dismissed
Mar. 26, 2009); Urbina v. Rustin, No. 08-0979 (W.D. Pa. dismissed Jul. 23, 2008);
Palomo v. Jones, No. 07-0772 (Chancery Court for Rutherford County, Tenn. May 30,
2007); Harvey v. N.Y. City Dep’t of Corrections, No. 07-0343 (E.D.N.Y. dismissed Jun.
12, 2009).
In light of ICE’s widespread policy, practice, and custom of issuing detainers in
violation of clear constitutional mandates, suppression of all evidence obtained after
ICE’s issuance of a detainer is the appropriate remedy in Respondent’s case.
D.
Suppression Should Extend to All Evidence ICE Obtained
Subsequent to Its Issuance of the Detainer
The remedy of suppression should extend to all evidence that is the “fruit” of
official conduct that violates the Fourth, Fifth, or Tenth Amendments. See, e.g., Wong
Sun v. United States, 371 U.S. 471, 487-88 (1963). Here, such proffered evidence
includes the I-213, the Meriden Police Department Incident Report, and the Connecticut
Superior Court Record.
With respect to the I-213, dated October 12, 2011, ICE generated that form five
days after wrongfully issuing a detainer against Respondent, and only after causing
Respondent’s unlawful detention by the Connecticut Department of Correction.
It
contains statements allegedly made by Respondent after he was unlawfully detained.
“Confessions or statements of the accused obtained during an illegal arrest and detention”
are classic examples of the “fruits” that warrant suppression. See, e.g., Crews v. United
States, 445 U.S. 463, 470 (1980); United States v. Flores-Sandoval, 422 F.3d 711, 714
(8th Cir. 2005) (“Statements that result from an illegal detention are not admissible.”)
(internal citation omitted).
With respect to the Meriden Police Department Incident Report, the copy offered
by ICE and numbered for identification purposes only as Exhibit 4 contains an undated
and initialed but unsigned stamp.
The police report itself was generated upon
Respondent’s arrest, but the record offered into evidence does not establish that it was
obtained by ICE before the illegal detention of Mr. C- L- from October 8, 2011 to
October 12, 2011. To the contrary, it is plain that ICE obtained the police report only
during the course of this removal proceeding—months after ICE’s issuance of the
unlawful detainer on October 7, 2011.
Similarly, the Connecticut Superior Court Record, marked as Exhibit 5 for
identification purposes only, is stamped and signed dated December 16, 2011, eleven
days after Mr. C- L-, through counsel, entered pleadings before this Court in which he
invoked his Fifth Amendment privilege against self-incrimination and stated that he
would put the government to its burden of proof.
Most importantly, however, the
stamped certification on the Superior Court Record confirms that it was obtained by ICE
more than two months after ICE caused Respondent’s unlawful detention.
Further, ICE only obtained these documents for the purpose of presenting them in
Respondent’s immigration proceedings, proceedings that would not have been initiated
but for the unlawful immigration detainer.
As such, the documents marked for
identification purposes only as Exhibits 3, 4, and 5 should be suppressed as fruit of the
poisonous tree. See Wong Sun, 371 U.S. at 487-88.