FOURTH AMENDMENT: Questioning at Airport by Immigration Officials Not Seizure

The Second Circuit Court of Appeals rejected an immigrant's Petition for Review, finding that immigration officials questioning at the airport was not a seizure. Pinto-Montoya v Mukasey.

" Petitioners, brothers who are natives and citizens of Guatemala, arrived at John F. Kennedy airport in New York on a flight from Los Angeles on February 8, 2001. As they disembarked from the plane, immigration agents in plainclothes approached them and asked them, in Spanish, about their immigration status. When petitioners admitted that they were in the United States illegally, the officers detained them and conducted additional questioning. As part of the questioning, both petitioners signed sworn statements conceding that they entered the United States unlawfully and were "in the United States in violation of U.S. immigration law."Shortly after the events at the airport, the INS commenced removal proceedings against petitioners. Petitioners did not file applications for relief from removal or contest their status but, instead, moved to suppress the evidence obtained during their questioning at the airport on the basis that they had been stopped at the airport solely on the basis of their race and nationality. "

"Respondents contended that petitioners were apprehended pursuant to a larger interdiction project conducted by the former Immigration and Naturalization Service ("INS"). In support of their position, respondents submitted a declaration from the agent who "signed off" on the form documenting petitioners' apprehension. Although the agent was not present when petitioners were interviewed and detained, he was the supervisor of the operation under which petitioners were selected for questioning.The declaration explained that the INS, after "observ[ing] various trends in the routes taken by [aliens illegally smuggled into the country]," had developed a protocol for identifying and questioning suspected smugglers and their clients. Plainclothes agents would approach individuals as they were disembarking from a plane, ask whether they would be willing to speak to the agents, and permit them to walk away if they did not. If an individual agreed to speak to the agents, he would be taken to a separate area, where the agents would reveal their identities and ask him questions about his immigration status. According to the protocol, "[t]he questioning at this point would also be voluntary. If the [person] did not want to answer the questions [he] would be free to leave." Individuals who "provided sufficient information to establish alienage and removability" would be taken into custody and transported to an INS office for processing. The agent described the criteria used in the protocol as follows:
In determining who would be identified for questioning, the protocol dictated that Agents look for passengers typically of Mestizo physical appearance (a person of mixed Spanish and American Blood [sic]) who would be inappropriately dressed in light of the season (i.e., they would not be wearing or carrying cold weather coats in the winter). The targeted people would also generally not have any baggage and bypass the baggage claim. They often would also carry airline issued food with them off the plane."

"Our immigration laws permit an immigration official to "interrogate" without a warrant "any alien or person believed to be an alien as to his right to be or to remain in the United States." 8 U.S.C. § 1357(a)(1). The applicable regulations governing "interrogation and detention not amounting to arrest," 8 C.F.R. § 287.8(b), state that (1) Interrogation is questioning designed to elicit specific information. An immigration officer, like any other [*9] person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.(2) If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.
The dispositive inquiry for determining whether the agents' contact with petitioners amounted to a seizure within the meaning of the Fourth Amendment is whether the encounter was consensual. See id.; see also Florida v. Bostick, 501 U.S. 429, 436-37 (1991) (discussing the holding and reasoning of Delgado with approval). "'[M]ere police questioning does not constitute a seizure.'" Muehler v. Mena, 544 U.S. 93, 101 (2005) (quoting Bostick, 501 U.S. at 434). Rather, we must ask whether, under the particular circumstances presented, "a reasonable person would have believed that he was not free to leave if he [did] not respond []" to the questions put to him. Delgado, 466 U.S. at 216; accord United States v. Drayton, 536 U.S. 194, 200 (2002) ("Law enforcement officers do not violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen."); Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) ("Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred.").Physical restraint or an assertion of authority to restrain a person's freedom of movement by law enforcement officers would, in most instances, constitute a seizure. See, e.g., Brendlin v. California, 127 S. Ct. 2400, 2405 (2007) ("A person is seized by [a law enforcement officer] and thus entitled to challenge the [officer's] action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied." (internal quotation marks and citations omitted)). Petitioners' testimony before the IJ does not suggest that they were physically restrained, ordered to stop, or otherwise coerced to answer questions when the agents approached them. Nor can petitioners plausibly argue that they answered the agents' questions in response to an assertion of authority.

Petitioners testified that they were not aware that the persons approaching them were law enforcement officers. Indeed, the agents were not dressed in uniform, did not display their badges, or otherwise identify themselves as immigration officials. Cf. Drayton, 536 U.S. at 204 (noting that the Supreme Court has "rejected the claim that the defendant was seized when an officer approached him in an airport, showed him his badge, and asked him to answer some questions" and, in addition, has held that immigration officials "wearing badges and questioning workers in a factory did not constitute a seizure").Petitioners' contention that the agents were blocking the ramp and thereby restraining petitioners' freedom of movement does not compel a contrary conclusion. In Delgado, the Supreme Court considered and rejected a similar argument that stationing agents near the means of egress constituted a seizure of all of the people on the other side of the exit. As the Court explained:
[T]here is nothing in the record indicating that . . . the agents at the doors actually [prevented people from leaving]. The obvious purpose of the agents' presence at the factory doors was to insure that all persons in the factories were questioned. The record indicates that the INS agents' conduct in this case consisted simply of questioning employees and arresting those they had probable cause to believe were unlawfully present in the factory. This conduct should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer. If mere questioning does not constitute a seizure when it occurs inside [a place], it is no more a seizure when it occurs at the exits.Delgado, 466 U.S. at 218. For similar reasons, petitioners cannot argue that the agents' position at the end of the ramp resulted in the seizure of all of the people aboard the plane who had not yet entered the airport terminal, much less that they were seized as a result.Petitioners have not argued that the immigration laws were violated or that the agents exceeded their authority to question aliens or persons believed to be aliens. See 8 U.S.C. § 1357(a)(1); see also 8 C.F.R. § 287.8(b)(1) ("An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away."). Nor do we find any record evidence of any such violation.Because we conclude that petitioners were not seized within the meaning of the Fourth Amendment, we need not consider what role petitioners' racial characteristics played in the agents' decision to approach them for questioning.



CONCLUSION For the reasons stated above, the petition for review is denied

IMMIGRATION ENFORCEMENT: Largest workplace raid in US HIstory

The United States Government Bureau of Immigration Customs and Enforcement (ICE) raided a Mississippi electronics factory, and arrested 595 workers. It may be the largest raid in US history. Only eight individuals have been charged with criminal offenses.

According to AP, families are frightened, and children are being kept out of school. "A day after the largest single-workplace immigration raid in U.S. history, Elizabeth Alegria was too scared to send her son to school and worried about when she'd see her husband again. Nearly 600 immigrants suspected of being in the country illegally were detained, creating panic among dozens of families in this small southern Mississippi town. Alegria, 26, a Mexican immigrant, was working at the Howard Industries transformer plant Monday when U.S. Immigration and Customs Enforcement agents stormed in. When they found out she has two sons, ages 4 and 9, she was fitted with a bracelet and told to appear in federal court next month. But her husband, Andres, wasn't so lucky. "I'm very traumatized because I don't know if they are going to let my husband go and when I will see him," Alegria said through a translator Tuesday as she returned to the Howard Industries parking lot to retrieve her sport utility vehicle. The superintendent of the county school district said about half of approximately 160 Hispanic students were absent Tuesday."

"Roberto Velez, pastor at Iglesia Cristiana Peniel, where an estimated 30 to 40 percent of the 200 parishioners were caught up in the raid, said parents were afraid immigration officials would take them. "They didn't send their kids to school today," he said. "How scared is that?"
"One worker caught in Monday's sweep at the plant said fellow workers applauded as immigrants were taken into custody. Federal officials said a tip from a union member prompted them to start investigating several years ago."

IMMIGRATION AND LOCAL LAW ENFORCEMENT: Only 55 agencies have signed partnerships

The Washington Post reports on a national conference held in Washington, D.C. this past week, at which law enforcement from across the United States participated in a discussion of the policy implications of enforcing immigration laws. According to the Washington Post, it has been reported that only 55 agencies have entered into cooperation agreements with ICE.

Houston Police Chief Harold Hurtt spoke at the Conference, and explained:

Harold Hurtt, said that the city has been labeled a "sanctuary" for illegal immigrants by some conservative commentators but that his department has focused on catching those who commit other crimes. He said it is extremely difficult to track down illegal immigrants without infringing on the rights of others, especially in minority and ethnic communities with many legal immigrants.

Hurtt posed a hypothetical case in which "your wife runs a red light on her way to the store" and has forgotten her driver's license. She is detained and booked, and her immigration status is checked. "Can you imagine doing that to every resident?" Hurtt asked an audience of several hundred police and local officials at a conference on immigration policing and civil liberties this week in the District. "There is a moral issue here. We are here to provide not only law enforcement, but justice."

CRIMINAL IMMIGRATION: Admission of Warrant of Deportation and CNR Do not VIolate Confrontation Clause

The Seventh Circuit on August 22, 2008. ruled in USA v Burgos, that the admission of the warrant of deportation and certificate of non existence, in a criminal trial (in this case, for illegal reenetry 8 USC 1326) do not violate the Confrontation Clause. The Court may have been motivated to rule for the Government due to the practical problem of proving an alien's prior removal or deportation, if theese documents had been ruled inadmissable.

GUANTANAMO: Inter-American Commission Speaks out Regarding Torture at Guantanamo

August 21, 2008, New York – Late yesterday afternoon, the Inter-American Commission on Human Rights (IACHR) issued urgent precautionary measures to protect Djamel Ameziane, an Algerian citizen held by the United States at Guantanamo Bay for more than six years. Mr. Ameziane has suffered various forms of torture and abuse during his imprisonment, including extended solitary confinement and a form of waterboarding, and needs a third country to offer him protection in order to leave Guantanamo safely. Mr. Ameziane is currently seeking resettlement in Canada, where he resided for five years prior to his detention.

The Commission’s measures were issued in response to a petition filed on behalf of Mr. Ameziane on August 6 by the Center for Constitutional Rights (CCR) and the Center for Justice and International Law (CEJIL). The IACHR first issued precautionary measures covering all Guantanamo prisoners in 2002 and has reiterated the measures several times since then. Yesterday’s measures are the first the Commission has issued with respect to a specific individual detainee and call for the United States to take urgent steps to prevent further irreparable physical and mental harm to Mr. Ameziane while he remains detained at the base. Mr. Ameziane has been held without charge at Guantánamo for over six years and suffers from various physical ailments as a result of his treatment and conditions of confinement, including a severe loss of vision, for which he has consistently been denied adequate medical care. U.S. authorities at Guantánamo also continue to subject Mr. Ameziane to abusive interrogations and have previously threatened to transfer him to his native Algeria, a country with a known record of human rights abuse where he fears returning.

The Commission requested that the United States:
“Immediately take all measures necessary to ensure that Mr. Djamel Ameziane is not subjected to cruel, inhuman or degrading treatment or torture during the course of interrogations or at any other time, including but not limited to all corporal punishment and punishment that may be prejudicial to Mr. Ameziane’s physical or mental health;
“Immediately take all measures necessary to ensure that Mr. Djamel Ameziane receives prompt and effective medical attention for physical and psychological ailments and that such medical attention is not made contingent upon any condition
“Take all measures necessary to ensure that, prior to any potential transfer or release, Mr. Djamel Ameziane is provided an adequate, individualized examination of his circumstances through a fair and transparent process before a competent, independent and impartial decision maker; and
“Take all measures necessary to ensure that Mr. Djamel Ameziane is not transferred or removed to a country where there are substantial grounds for believing that he would be in danger of being subjected to torture or other mistreatment, and that diplomatic assurances are not used to circumvent the United States’ non-refoulement obligations.”

****

Djamel Ameziane is an ethnic Berber from Algeria who fled his home country 16 years ago in order to escape persecution and seek a better life. He lived in Austria and then Canada, where he applied for political asylum but was ultimately denied refuge. With few options, he traveled to Afghanistan, but as a foreigner in a land soon torn apart by conflict, he was an easy target for corrupt local police who captured him while he was trying to cross the border into Pakistan. Mr. Ameziane was then handed over to U.S. military forces, presumably for a bounty. The U.S. military transported him first to the Airbase at Kandahar, Afghanistan and then to Guantánamo in February 2002, where he was among the first prisoners to arrive. After more than six years, he remains imprisoned without charge and without judicial review of his detention. U.S. personnel have subjected Mr. Ameziane repeatedly to brutal acts of physical violence during his imprisonment. Guards put him through a form of waterboarding, where they held his head back and placed a water hose between his nose and mouth, running it for several minutes over his face and suffocating him, repeating the operation several times.

In describing that experience he writes, “I had the impression that my head was sinking in water. Simply thinking of it gives me the chills.” For over a year, Mr. Ameziane was held in solitary confinement in a small windowless cell in Camp 6, one of the most restrictive detention facilities in Guantánamo.Another time, his entire body was sprayed with cayenne pepper and then hosed down with water to accentuate the skin-burning effect of pepper spray. Guards then cuffed and chained him and took him to an interrogation room, where he was left for several hours, writhing in pain, his clothes soaked while air conditioning blasted in the room, and his body burning from the pepper spray. Mr. Ameziane has never been alleged by the U.S. government to have engaged in any acts of terrorism or hostilities.

Mr. Ameziane’s claims in his petition to the IACHR include violations of his rights to freedom from arbitrary detention; freedom from torture and cruel and degrading treatment, including the denial of necessary medical care, and religious humiliation and abuse; protection of his personal reputation, and private and family life; and the right to a judicial remedy for the violations of his rights. The petition additionally asks the IACHR to instruct the United States not to return Mr. Ameziane to his home country of Algeria. In order to leave Guantánamo safely, Mr. Ameziane requires a third country to offer him protection. He is currently seeking resettlement in Canada, where he resided for five years prior to his detention.For a copy of the filing and a more detailed profile of Mr. Ameziane, click here.

For more information on CCR’s work on illegal detention, torture and abuse at Guantánamo Bay, visit our website at http://www.ccrjustice.org/.

08.08.20_IACHR_precautionary measures (2).pdf

The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.

JURY SELECTION: Peremptory of Bilingual Juror Not Race Neutral

2008 Cal. App. LEXIS 1171, People v Vasquez Gonzalez COURT OF APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, July 30, 2008.

" The prosecutor here did not justify his exercise of a peremptory challenge to Prospective Juror J.C. based on his particular demeanor or body language during the relevant questioning and group response. In fact, the prosecutor referenced only defense counsel's discussion of the language issue, not any particular jurors' response to that issue. The prosecutor then simply cited his general belief that there could be a problem when testimony was given by Spanish-speaking witnesses through an interpreter."

SENTENCING: Tennessee Appeals Court Reverses Denial of Probation based on Assumption of Illegal Alien Status

Editor's Note: However, the opinion, however, is not clear as to whether the Court would have affirmed if the Defendant had stated he was in the United States illegally. Although it does appear that the Appellate Court did not consider the trial court's sentence appropriate in any event.

Colleagues, please advise me of your experience with regard to sentencing disparities due to immigration status.
Linda Friedman Ramirez

2008 Tenn. Crim. App. LEXIS 583, STATE OF TENNESSEE v. PABLO, COURT OF CRIMINAL APPEALS OF TENNESSEE, AT JACKSON2008 Tenn. Crim. App. LEXIS 583
July 30, 2008.

"The courts have long recognized that the decision whether to grant probation to a deportable alien presents special issues." People v. Espinoza, 107 Cal. App. 4th 1069, 1074, 132 Cal. Rptr. 2d 670 (Cal. Ct. App. 2003) (trial court free to exercise discretion to deny probation where defendant faces substantial likelihood of deportation); see also People v. Sanchez, 190 Cal. App. 3d 224, 231, 235 Cal. Rptr. 264 (Cal. Ct. App. 1987) ("We do not suggest illegal alien status should preclude the granting of probation. Rather, we conclude only that such fact may properly be considered by the sentencing court with all other relevant factors in exercising its discretion in this regard.") (emphasis added). We are unable to conclude that the evidence preponderates in favor of a finding that the Appellant conceded that his presence in the United States is unlawful or that he is subject to removal, and no evidence was submitted by the State in this regard.

We further note that there exist avenues, as set forth in the United States Code, by which citizens of other countries may have a legitimate and legal presence in the United States. Moreover, the trial court's decision to deny probation and to order a sentence of total confinement as to the DUI conviction ignored established criteria in determining whether total confinement or probation should be granted, including whether there is an undue risk that the offender is likely to re-offend and the defendant's amenability for correction. Accordingly, we reverse the sentence imposed by the trial court for the offense of DUI, first offense and remand for resentencing."

CRIMINAL IMMIGRATION: Interpreter Speaks Out about Mass Pleas In Iowa

More on this from Democracy Now, August 20, 2008.

The New York Times July 11, 2008, reports "An Interpreter Speaking Up for Migrants", Julia Preston.
(See related story, 270 Workers Sentenced in Federal Court to Five Months)

" In 23 years as a certified Spanish interpreter for federal courts, Erik Camayd-Freixas has spoken up in criminal trials many times, but the words he uttered were rarely his own. Then he was summoned here by court officials to translate in the hearings for nearly 400 illegal immigrant workers arrested in a raid on May 12 at a meatpacking plant. Since then, Mr. Camayd-Freixas, a professor of Spanish at Florida International University, has taken the unusual step of breaking the code of confidentiality among legal interpreters about their work. In a 14-page essay he circulated among two dozen other interpreters who worked here, Professor Camayd-Freixas wrote that the immigrant defendants whose words he translated, most of them villagers from Guatemala, did not fully understand the criminal charges they were facing or the rights most of them had waived."

"He suggested many of the immigrants could not have knowingly committed the
crimes in their pleas. “Most of the clients we interviewed did not even know what a Social Security card was or what purpose it served,” he wrote. He said many immigrants could not distinguish between a Social Security card and a residence visa, known as a green card. They said they had purchased fake documents from smugglers in Postville, or obtained them directly from supervisors at the Agriprocessors plant. Most did not know that the original cards could belong to Americans and legal immigrants, Mr. Camayd-Freixas said."
Ms. Smith went repeatedly over the charges and the options available to her
clients, Professor Camayd-Freixas said.

He cited the reaction of one Guatemalan, Isaías Pérez Martínez: “No matter how many times his attorney explained it, he kept saying, ‘I’m illegal, I have no rights. I’m nobody in this country. Just do whatever you want with me.’ Professor Camayd-Freixas said Mr. Pérez Martínez wept during much of his meeting with Ms. Smith. Ms. Smith, like more than a dozen other court-appointed defense lawyers, concluded that none of the immigrants’ legal options were good. Prosecutors had evidence showing they had presented fraudulent documents when they were hired at Agriprocessors. In plea agreements offered by Mr. Dummermuth, the immigrants could plead guilty to a document fraud charge and serve five months in prison. Otherwise, prosecutors would try them on more serious identity theft charges carrying a mandatory sentence of two years. In any scenario, even if they were acquitted, the immigrants would eventually be deported.

Worried about families they had been supporting with their wages, the immigrants readily chose to plead guilty because they did understand that was the fastest way to return home, Professor Camayd-Freixas said. “They were hoping and they were begging everybody to deport them,” he said.

ILLEGAL RE-ENTRY: Disparity due to Lack of Fast Track Not a 3553 Factor

Case in Brief: The Eleventh Circuit declined to overrule precedent in USA v Vega-Castillo. August 19, 2008.

GUANTANAMO: "Kafka Comes to America" by Steve Wax

Steve Wax is the Federal Public Defender for Oregon.


According to the Other Press, "A public defender’s dedicated struggle to rescue two innocent men from the recent Kafkaesque practices of our vandalized justice system “Our government can make you disappear.” Those were the words Steven Wax never imagined he would hear himself say. In his twenty-nine years as a public defender, Wax had never had to warn a client that he or she might be taken away to a military brig, or worse, a “black site,” one of our country’s dreaded secret prisons. How had our country come to this?� The disappearance of people happens in places ruled by tyrants, military juntas, fascist strongmen—governments with such contempt for the rule of law that they strip their citizens of all rights. But in America? "

IMMIGRATION CRIMES: Seventh CIrcuit Affirms Forced Labor, Haboring and Remands re Sentencing Enhancements

The Seventh Circuit in USA v Calimlim affirmed the conviction of a husband and wife who were accused of obtaining the forced labor of a young Phillipine national, for a period of 19 years. The Government cross appealed the Court's denial of several sentencing enhancements and the Court remanded for a new sentencing hearing.

IMMIGRATION: Gang Membership Not "Social Group" Worthy of Asylum Status

Matter of E-A-G-, Interim Decision #3618, 24 I&N Dec. 591 (BIA 2008), July30, 2008: (1) The respondent, a young Honduran male, failed to establishthat he was a member of a particular social group of "persons resistant togang membership," as the evidence failed to establish that members ofHonduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group. (2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that he was a member of a particular social group of "young persons who are perceived to be affiliatedwith gangs" based on the incorrect perception by others that he is such agang member. http://www.usdoj.gov/eoir/vll/intdec/vol24/3618.pdf

Matter of S-E-G-, Interim Decision #3617, 24 I&N Dec. 579 (BIA 2008), July30, 2008: Neither Salvadoran youth who have been subjected to recruitment efforts by the MS-13 gang and who have rejected or resisted membership inthe gang based on their own personal, moral, and religious opposition to thegang's values and activities nor the family members of such Salvadoran youthconstitute a "particular social group."http://www.usdoj.gov/eoir/vll/intdec/vol24/3617.pdf