Saturday, January 31, 2009

Martins (not precedential): Acceptable To Deport Immigrants Who Call Police To Report Crimes

Martins v. Filip
No. 06-4350
January 20, 2009
Not Precedential
Judges Scirica, Fuentes, and Hardiman. Opinion by Chief Judge Scirica.

IJ Daniel A. Meisner

It is acceptable for ICE to deport an immigrant who calls the police or 911 to report a crime, as IJ Meisner and the BIA had ruled. The Third Circuit held that interrogating an immigrant who calls the police with a useful tip to report a crime is not an unusual condition. That fact does not demonstrate an unusual condition under which the police is interrogating the immigrant.

Instead, there must be some other detail that would make the interrogation something other than fairly ordinary conditions for interrogating someone. It does not matter that there are policy reasons for not inquiring about or investigating the immigration status of crime victims or crime informants. It also does not matter that the New Jersey Attorney General recently recognized the need to respect those policy concerns.

The Third Circuit held interrogating someone who calls the police with useful crime tips is not an egregious violation of the Fourth Amendment or other liberties that would require excluding the evidence that ICE obtained from the interrogations.

It is also generally acceptable for an immigration judge to prohibit an immigrant from talking with his lawyer or participating in his legal defense during an immigration court case. Unless you can prove more, it is perfectly fine for an immigration judge to go ahead with a deportation case even if the immigrant would be unable to watch, talk, or assist in the legal defense. It sounds like it would be equally acceptable to gag the immigrant or even shut him out of the courtroom. The Third Circuit left open a possibility for challenging a case where the immigrant could show specifically how it affected his defense -- however, the Third Circuit also points out that it refuses to accept any evidence on that point.

In this case, the Third Circuit refused to accept the evidence that purportedly showed how refusing to let the immigrant participate in his defense affected the case. The Third Circuit next ruled that there was no evidence to show how it would have affected the case. (Once it refused to let the immigrant submit any proof, it is logical that the Third Circuit would conclude that it had no evidence in front of it. It is hard to understand, though, how any immigrant would prove something when it has no chance to submit proof -- perhaps the Third Circuit is essentially saying that an immigrant can never complain if an immigration judge gags and bars him from participating in his case. I hope the Third Circuit is not really taking this view.)

Finally, the Third Circuit ruled that it would not accept new evidence because its approach before REAL ID was not to consider additional evidence on appeal. It did not address how the rule applies after REAL ID, which funneled most immigration appeals to circuit courts rather than allowing habeas suits where there is new evidence.


Post a Comment

<< Home