Sunday, January 15, 2006

Kiam: Can Often Use Border Interrogation Answer In Criminal Case

United States v. Kiam,
No. 05-1384
Filed January 3, 2005
This is not a case arising from immigration court, but involves immigration issues.

Can a prosecutor use information obtained by a border inspector's questioning at an international airport (here, the Philadelphia airport)? The Third Circuit ruled that under the United States Constitution, a prosecutor can use questions by an ordinary border officer as long as the questions have a bearing on admissibility.

Let's take a moment for a side-note to clarify -- the Third Circuit looked purely at the protections in the United States Constitution in a criminal case. This raises two questions: (a) can an immigrant benefit from possibly greater protections under the state constitution (e.g. the New Jersey Constitution) or the Vienna Convention on Consular Relations and (b) can an immigrant convince a court to extend the rule allowing the suppression of evidence obtained through unlawful searches and seizures to immigration court and not just in criminal cases? On the first point, courts have not yet ruled on whether the New Jersey Constitution's analogous protection against unlawful searches affords greater rights, and Catholic Charities of the Archdiocese of Newark is arguing this issue before the Board of Immigration Appeals in a pending appeal. On the second point, the U.S. Supreme Court in 1984 ruled that here is a multi-part test for deciding whether to extend U.S. Constitutional exclusionary rules to immigration court and as of 1984 said the answer would be no in a particular case. Catholic Charities of the Archdiocese of Newark is also contesting this issue in an appeal to the BIA.

Let's get back to the Third Circuit's decision: the Third Circuit tossed out a rule that other circuits use -- that a prosecutor can use answers to routine border questions where the inspector had no suspicion of criminal activity but not any non-routine questions or questions when the inspector had suspicions of crimes. The Third Circuit disliked that rule. The prosecutor can use questions in an airport custom's interrogation if the questions still bear on an unresolved question about inadmissibility. To the Third Circuit, the interrogation was acceptable because the inspector was interrogating about ruling the immigrant inadmissible due to criminal activity and the questions were aimed to an unresolved question of whether he was admissible.

The Third Circuit added dicta, which is unnecessary analysis. It then addressed whether a second interrogation could be used if for the sake of argument a first interrogation violated Miranda. (It is purely hypothetical in this case because the Third Circuit ruled that the first interrogation was proper.) The Third Circuit interpreted Missouri v. Seibert, 542 U.S. 600 (2004) as reinforcing the test of Oregon v. Elstad, 470 U.S. 298, 314 (1985): the second interrogation must be suppressed if (a) the first interrogation included coercion, (b) the first interrogation used improper tactics, or (c) if there were not enough curative measures between the first and second interrogation such as taking a sufficient break in time or a break in circumstances or a clear, understood explanation to the immigrant that the first statement could not be used against him.

It will be extremely interesting to see immigration lawyers file motions to suppress in immigration court to challenge immigration judges' often misguided assumptions that the 1984 United States Supreme Court case (INS v. Lopez-Mendoza) absolutely prohibits applying the exclusionary rule in immigration court forever. And as immigration lawyers file motions to suppress in immigration court based on the New Jersey Constitution, other states' constitutions, or the U.S. Constitution.


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