Oliva-Ramos: Suppression Motions In Immigration Court Can Succeed Upon Showing Widespread Violations Or Egregious Violations
September 13, 2012
Audio of the oral argument is available at:
Judge McKee wrote the opinion, with Chief Judge Rendell and Judge Ambro.
For Mr. Oliva-Ramos, Nancy Morawetz, Alina Das, Nikki R. Reisch (argued), Stephen Kang, Ruben Loyo, Nancy Steffan, Washington Square Legal Services (a clinic at NYU Law School), NY, NY.
For the government, Allen W. Hausman (argued) and Andrew J. Oliveira, OIL, Washington DC.
For amici ACLU, LatinoJustice PRLDEF, AALDEF, Cardozo Immigration Justice Clinic, and Catholic Charities of Newark, Timothy E. Hoeffner (with John J. Clarke, Jr. and Connie Tse), DLA Piper LLP.
The Third Circuit held that the position held by eight out of nine justices of the Supreme Court in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) should be followed. The eight justices included four in a plurality opinion and four in a dissenting opinion. Even though the eight wrote separate opinions in the case, when you add them up, the eight represent a majority of the nine justices.
The Third Circuit's approach is not surprising because it follows a basic principle that courts should pay attention to dicta in Supreme Court decisions. What is surprising is that the Third Circuit is being forced to explain the basic rule while overturning the BIA and rejecting OIL attorneys' arguments. It is unclear why the BIA and OIL attorneys believed otherwise. The BIA believed the view held by eight out of nine justices in Lopez-Mendoza was irrelevant because it was mere dicta.
The BIA also noted that the Supreme Court has not yet concluded in a case that evidence in immigration court should be suppressed. The Third Circuit ruled, quite logically, that this fact does not undermine how the Supreme Court has laid out the possibility to suppress evidence in the appropriate case.
Therefore, the Third Circuit's decision is noteworthy because it lays out what was already clear to everyone (other than the BIA and OIL) -- evidence can be suppressed in immigration court if there are egregious violations of the Fourth Amendment or if the violations are widespread.
In analyzing whether a violation is an egregious Fourth Amendment violation, an illegal action can be egregious without showing that the conduct is so offensive that it shocks the conscience. In addition, an illegal action can be egregious even if the officer conducting the action behaved in good faith -- for example if an officer in good faith follows an illegal ICE policy to detain people without reasonable suspicion and to enter homes during pre-dawn raids without consent.
The Third Circuit adopted a slight variation from the Second Circuit's view in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006). The Third Circuit ruled that an illegal act is an egregious Fourth Amendment violation if either (a) it was a constitutional violation that was fundamentally unfair or (b) the violation (whether unfair or not) undermined the reliability of the evidence in dispute.
In deciding whether a violation is fundamentally unfair, the Third Circuit emphasized a flexible case-by-case approach based on a general set of background principles. Courts must pay close attentio to the characteristics and severity of the illegal conduct. Treats, coercion, or physical abuse might be important factors. Physical brutality and an unreasonable show or use of force would also be important. There is no one-size-fits-all approach to analyzing whether illegal conduct is fundamentally unfair. The Third Circuit ordered the BIA on remand to study all factors, including whether ICE intentionally violated Fourth Amendment rights, whether the seizure was gross or unreasonable (e.g. particularly lengthy stop or unnecessary and menacing show or use of force), whether there were threats, coercion, or physical abuse, whether there were unreasonable shows of force, and whether the officers acted based on race or perceived ethnicity. That list is not an exhaustive list of relevant factors.
Turning to proof that violations are widespread, the Third Circuit is one of the first circuits to discuss that in any depth. The Third Circuit believes proof that illegal searches are part of a pattern of widespread violations would trigger suppressing evidence. The Third Circuit noted that it has already received evidence and allegations of widespread illegal immigration raids in the case of Argueta v. ICE, 643 F.3d 60 (3d Cir. 2011).
The IJ and BIA committed reversible error by not allowing Mr. Oliva-Ramos the chance to introduce evidence that ICE's illegal raid was part of a consistent pattern of illegal early-morning raids, such as evidence about ICE Fugitive Operations Teams and ICE arrest statistics. They also erred by ignoring proof in the record that ICE had a policy of rounding up everyone in a home without any particularized suspicion. There is also evidence from a Cardozo Law School clinic's report titled Constitution on ICE (2009).
The IJ and BIA also committed reversible error by granting subpoenas for documents about the home raid and subpoenas to compel officers at the home raid to testify in court.
The Third Circuit also discussed whether ICE's alleged violation of a variety of regulations would justify terminating proceedings. These are important points and you should review the decision for this additional analysis when you argue not just to suppress evidence, but also to terminate proceedings due to regulatory violations.
Points include: the IJ and BIA erred by concluding consent was given without carefully reviewing several pieces of evidence that challenge the voluntariness of the consent given. Also, ICE cannot satisfy 8 CFR 287.8(c)(2)(i) regarding warrantless arrests by claiming someone is a flight risk if ICE cannot prove that the evidence leading them to think he was a flight risk might have been illegally obtained.
Congratulations to NYU Law School's clinic and DLA Piper! Nikki Reisch did an excellent job at oral argument, which the Third Circuit noted in a footnote demonstrated exceptional oral advocacy. The Third Circuit also expressed its gratitude that NYU Law School's clinic represented the client on a pro bono basis. Looking forward to better BIA decisions and ICE analysis about suppression motions in immigration court.