"License and registration, please." These are the words that
most of us hear when we are pulled over during a traffic stop. But
not for my client. When he was stopped upon exiting a Dunkin Donuts
parking lot in the Berkshires, the first words the Massachusetts
state trooper said to him were: "Let me see your passport," and
"Are you here illegally?" Thereafter, my client was arrested,
transferred to federal immigration authorities, and placed in
removal proceedings. The trooper never told my client the basis for
the stop.
In the wake of the Sept. 11 attacks, the federal government
devised a panoply of mechanisms to evade compliance with bedrock
constitutional principles such as due process and equal protection.
Ten years later, with the assistance of states and local officials,
the federal government continues to devise such initiatives,
ensnaring some of this country's most vulnerable members of
society, few of whom threaten national security or pose a threat to
public safety.
Post-9/11
anti-immigrant efforts
In 2007, when my client's arrest occurred, the commonwealth was
embroiled in the national debate over a federal anti-immigration
effort authorized by Section 287(g) of the Immigration and
Nationality Act, which permitted participating local entities to
serve as agents of federal immigration officials. Before leaving
office, Gov. Mitt Romney entered into a 287(g) agreement between
the Massachusetts State Police (MSP) and the Department of Homeland
Security, which made MSP personnel deputized federal immigration
agents.
Soon after entering office, and a few months before my client was
stopped and arrested, Gov. Deval Patrick rescinded the 287(g)
agreement. Unfortunately, Patrick's action did little to clear up
the existing confusion over the role of state and local police in
enforcing federal immigration laws. And, despite the rescission of
the 287(g) agreement, numerous reports surfaced of ongoing police
enforcement of federal immigration laws.
Earlier this year, Patrick took a further stand against the
federal government's anti-immigration efforts when he opted out of
Secured Communities, a federal program that allows participating
state and local law enforcement agents to check the fingerprints of
arrested individuals against federal immigration databases.
Although Immigration and Customs Enforcement (ICE) has taken the
position that the federal government is "prioritizing" only the
most "dangerous criminal aliens," ICE's own data reveal that the
majority of individuals deported under the program have no criminal
records.1 Sadly, even if the basis for an initial
traffic stop and arrest under Secured Communities is pretextual, a
person who has been removed from the country has very little
ability to challenge an order of deportation. Where Secured
Communities is in effect, the ability to challenge a pretextual
stop at the outset of the deportation proceeding is therefore all
the more important.
The exclusionary rule in immigration
proceeding
One of the techniques developed by civil rights and immigration
lawyers to protect immigrants' rights in the face of programs like
Secured Communities is bringing motions to suppress and
motions to terminate proceedings in immigration court.
Less than a decade ago, these types of motions were virtually
unheard of in immigration court, where proceedings are
administrative in nature. Based on the same legal principles
employed by criminal defense lawyers, this legal strategy may be
the only viable option for protecting an immigrant's rights, as was
the case for my client.
In an immigration proceeding, which is civil, not criminal, in
nature, the government bears the burden of proving removability by
clear, convincing and unequivocal evidence. To do so, the
government must show "identity and alienage." Alienage typically is
demonstrated by a so-called Form I-213. In my client's case, we
brought a motion to suppress the Form I-213, arguing that the stop
itself was based on race in violation of the Fourth and Fifth
Amendments to the U.S. Constitution and therefore, any evidence
obtained as a result of the illegal stop (i.e., the I-213) must be
suppressed and the proceedings terminated.
The legal argument stems from a 1984 Supreme Court decision, which
provided that the exclusion of evidence in removal proceedings may
be authorized where the evidence was obtained by an "egregious
violation of the Fourth Amendment or other liberties."2
The Court stated that if such violations either "transgress notions
of fundamental fairness" or "undermine the probative value of the
evidence obtained," exclusion is an appropriate remedy.3
Over the past several years, an increasing number of suppression
motions have been filed in immigration courts by advocates prepared
to raise constitutional infirmities as a basis for the relief
sought.
Conclusion
Litigating suppression motions is a long road. After more than
four years, and some success on appeal, my client has yet to
receive an evidentiary hearing -- not an uncommon result in
immigration proceedings. What this case illustrates is that
programs such as 287(g) agreements and Secured Communities, devised
in the name of national security after the Sept. 11 attacks,
encourage state and local police to target drivers suspected of
being in the country unlawfully, thereby legitimizing racial
profiling as a form of policing. Because most of those affected
have not committed any serious crime, or any crime at all, these
pretextual immigration enforcement tactics clog an already
overburdened administrative court system with precisely the kinds
of cases the federal government has claimed are not a national
priority.
Anjali Waikar is a litigation associate at Krokidas &
Bluestein LLP in Boston, where she practices primarily in the areas
of employment, privacy and health care. Previously, she was a legal
fellow at the American Civil Liberties Union of Massachusetts,
working on issues relating to post-9/11 profiling of immigrant
communities.
1See, e.g.,
www.ice.gov/doclib/foia/sc-stats/nationwide_interoperability_stats-fy2011-to-date.pdf.
2I.N.S. v. Lopez-Mendoza, 468 U.S. 1032,
1050-51 (1984).
3Id. at 1050-51.