Galarza: Immigration Detainers are Mere Requests to Local Police

Ernesto Galarza v. Mark Szalczyk
Filed 03/04/14, No. 12-3991
Appealed from USDC for the Eastern District of Pennsylvania

http://www2.ca3.uscourts.gov/opinarch/123991p.pdf

Judges Fuentes and Cowen voted in the majority with a dissent by Judge Barry.

For Mr. Galarza:
Argued by Katherine Desormeau, with Cecilia Wang, ACLU Foundation, San Francisco.  Mary Catherine Roper, Molly M. Tack-Hooper, ACLU Foundation of Pennsylvania.  Omar C. Jadwat, Esha Bhandari, ACLU Foundation.  Jonathon H. Feinberg, Kairy, Rudovsky, Messing & Feinberg LLP, Philadelphia.  Seith Kreimer, Philadelphia.

For Lehigh County:
Thomas M. Caffrey (who argued it), Allentown, PA.

For Attorneys for Amicus Appellant Law Professors and Scholars who Teach, Research, and Practice in the Area of Immigration and Nationality Law and Criminal Law:
Christopher N. Lasch, University of Denver Environment Center, Environmental Law Clinic, Denver.  Rebecca A. Sharpless, University of Miami School of Law.

For Amicus Appellant National Immigration Project of the National Lawyers Guild:
Andrew C. Nichols, Winston & Strawn, Washington DC

The Third Circuit concluded that the provisions for DHS to issue immigration detainers is clear that they are mere requests for local police and jails to hold an immigrant for up to 48 hours.  The local police are not required to comply with the request.  Great work by Mr. Galarza's team!

Oliva-Ramos: Suppression Motions In Immigration Court Can Succeed Upon Showing Widespread Violations Or Egregious Violations

Oliva-Ramos v. Holder
No. 10-3849
September 13, 2012
Precedential
http://www.ca3.uscourts.gov/opinarch/103849p.pdf

Audio of the oral argument is available at:
http://www.ca3.uscourts.gov/oralargument/audio/10-3849RodolfovAttyGenUSA.wma

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.

Coroleo update: overruled by Judulang v. Holder (U.S. Dec. 12, 2011)

In Judulang v. Holder (U.S. Supreme Court Dec. 12, 2011), the Supreme Court seems to have overruled the Third Circuit's 2007 ruling in Coroleo.

The BIA's view on when a legal permanent resident can use section 212(c) relief while being charged with a ground of deportability is invalid. Because the BIA's rule is arbitrary and capricious, the Supreme Court struck it down. I believe this overruled how the Third Circuit accepted the BIA's view in 2007 in Coroleo.

It is arbitrary to allow some people whose crime could trigger a ground of inadmissibility to seek section 212(c) relief but not others, based on the BIA's peculiar view of whether a ground of deportability has a comparable enough ground of inadmissibility to allow section 212(c) relief.

Diop: Mandatory Detention Limited To A Reasonable Period

In Diop v. ICE, the Third Circuit limited mandatory detention to a reasonable period. Sounds like a reasonable decision!

The ACLU has just come out with a practice advisory. You can find it at this link:
http://www.aclu.org/files/assets/diop_practice_advisory_pdf.pdf

Below is an explanation by the ACLU about its advisory and Diop:

Prolonged Mandatory Detention and Bond Eligibility: Diop v. ICE/Homeland Security

This advisory concerns the Third Circuit’s decision in Diop v. ICE/Homeland Security, 656 F.3d 221 (3d Cir. 2011). Diop addresses whether the government may subject individuals to mandatory immigration detention for a prolonged period of time. The Court held that the Due Process Clause of the Fifth Amendment permits mandatory detention for only a “reasonable period of time,” and construed the mandatory detention statute, 8 U.S.C. § 1226(c), as authorizing mandatory detention only for a reasonable period. When detention exceeds that reasonable period, the noncitizen is entitled to an individualized hearing where the government must show that continued detention is necessary to prevent flight or danger to the community. Id. at 223.
This practice advisory discusses how certain detainees can use Diop to obtain bond hearings. Notably, although the Court held that reasonableness is a “function of the length of the detention,” id. at 232, it declined to adopt a presumptive period of time at which mandatory detention becomes unreasonably prolonged. Instead, the Court held that “[r]easonableness . . . is a fact-dependent inquiry requiring an assessment of all of the circumstances of any given case.” Id. at 234. Nonetheless, the Court recognized that reasonableness is largely a function of time, and that the more mandatory detention exceeds the periods contemplated by the Supreme Court in Demore v. Kim, 538 U.S. 510 (2003)—45 days to complete removal proceedings before the immigration judge (IJ), and five months for those who appeal their cases to the Board of Immigration Appeals (BIA)—the constitutionality of detention without a bond hearing becomes increasingly “suspect.” Id. Thus, your client’s right to a bond hearing will turn on showing that detention has become “unreasonable” in his or her case, with a significant—but not sole—factor being the length of detention.
The ACLU will be monitoring the implementation of Diop on an ongoing basis. Should you have questions or require technical assistance regarding a detention challenge under Diop, please contact Michael Tan at the ACLU Immigrants’ Rights Project, mtan@aclu.org / 212-284-7303.

Oral Argument Upcoming: Diop/Alli cases Jan. 24, 2011

Two cases that have been consolidated for appeal purposes look fascinating and will be argued on Monday, January 24, 2011 in Philadelphia at 10am before Judges Fuentes, Chagares, and District Judge Pollak.

The cases are Chiekh Diop v. ICE and Homeland Security (Case No. 10-1113) and Alexander Alli v. Thomas Decker (Case No. 10-2297).

It is difficult to tell for certain, but it is likely that the cases involve the issue of how the ACLU challenges whether the government can detain people for prolonged periods of time (sometimes for many years) while they fight their immigration cases without giving them any hearing to check whether detaining them would be justified.

Even though the Supreme Court has said mandatory detention without review of some types of immigrants might be allowed for short periods, the case law is unclear about prolonged detention without any review. There are very strong arguments why it should be illegal to hold anyone based on impersonal categorizations for a prolonged period of time without offering any opportunity for an immigration judge to review whether the detention would be justified in that specific case.

The oral argument should be very interesting and I hope the ACLU can convince the Third Circuit to step in and make sure immigrants have the ability to have their detention reviewed by an immigration judge when they would be held for a prolonged period.

This is an extremely important issue and the Third Circuit has an excellent opportunity to focus on the issue. It is so important that the Third Circuit should issue a ruling even if it turns out at some point that the particular individuals involved in the cases no longer personally need a ruling. The issue will come up again in many other cases and the Third Circuit should relieve immigrants of the extreme suffering of prolonged detention if it would be illegal for the government to do it without any judicial review.

Letting it go on despite being illegal would not be a good use of the court's time or resources.

Update: the Third Circuit ruled in Diop that mandatory detention must be limited to a reasonable time period. See a different post for a practice advisory from the ACLU.