Lawyers Journal

Driving while immigrant

"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 Deval Patrick rescinded the 287(g) agreement.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.

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