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Raining on ICE Raids

July 2009

It’s quite rare to see an attorney in immigration court challenge the admissibility of evidence or the underlying constitutionality of an immigrant’s arrest. But all that changed last year following a highly publicized raid of a Van Nuys cartridge factory.

After the February 2008 raid on Micro Solutions Enterprises, advocacy groups and the private immigration bar combined efforts to represent dozens of immigrants facing deportation. Working side by side, attorneys argued in court that Immigration and Customs Enforcement’s conduct violated the Code of Federal Regulations and immigrants’ rights under the Fourth and Fifth Amendments.

So far, the attorneys have succeeded in getting all of the cases thrown out of court, and none of the immigrants represented by the group of public interest attorneys has been deported. All of the cases were handled pro bono or at a reduced rate.

The Obama administration announced last month that it is backing away from the contentious and counterproductive workplace raids that were a cornerstone of Bush’s late-term immigration policy. Even though it’s unlikely we’ll see many workplace raids in the near future, those of us who practice immigration law are still benefiting from the lessons learned from last year’s raid. We’ve learned new litigation strategies and the benefits of organizing ourselves to respond forcefully to controversial government actions.

It all began on Feb. 7, 2008, when more than 100 armed immigration agents stormed the workplace of manufacturer Micro Solutions. The agents segregated men from women and ordered U.S. citizens, lawful permanent residents and those without immigration documents to form separate lines. No one was allowed to use the bathroom or leave the premises. Agents blocked the exits. Eventually, about 100 workers were hauled off to an immigration processing facility in downtown Los Angeles.

To its credit, the immigration agency notified a nonprofit organization, the Coalition for Humane Immigrant Rights of Los Angeles, that the raid was taking place. Advocacy groups had already formed a “Raids Rapid Response Network” to prepare for potential raids. They quickly got the word out. Using Internet listservs provided by the Los Angeles County Bar Association and the American Immigration Lawyers Association, the call went out for private immigration attorneys to assist the detained immigrants.

What happened in the next weeks and months was quite remarkable. Attorneys from the private bar, the American Civil Liberties Union, the National Immigration Law Center, the Central American Resource Center and other groups challenged the cases of individual detainees in immigration court. The ACLU and National Immigration Law Center also brought their own litigation in federal court, arguing that the workers’ right to counsel had been violated and seeking access through the Freedom of Information Act to documents detailing the immigration agency’s planning for the raid.

What had ICE done wrong? Just about everything.

For starters, they detained absolutely everyone who worked at the plant without individualized suspicion regarding unlawful immigration status. Attorneys argued this violated the Fourth Amendment and a federal regulation, 8 C.F.R. Sections 287.8(b) and (c), which states that prior to detaining someone, an immigration officer must have reasonable suspicion based on articulable facts that the person is here unlawfully. By detaining everyone, ICE could not meet that individualized standard.

Next, ICE went into the raid with arrest warrants for just eight workers. But ICE ended up arresting almost 150. The attorneys argued successfully that the same regulation prohibits ICE from arresting immigrants without a warrant unless ICE can show the immigrant is likely to escape. Since ICE couldn’t, the arrests were unlawful.

Next, ICE agents prevented attorneys from consulting with their clients after they were detained; they also failed to provide the immigrants with any advisals about their right to counsel or right to avoid incriminating themselves. Attorneys argued that all of the evidence gathered during ICE’s interrogations of the workers must be thrown out because of the constitutional and regulatory violations. In some instances, ICE attorneys had also failed to meet procedural deadlines to submit evidence to the court, and the pro bono attorneys argued that ICE failed to show good cause for missing deadlines.

Moreover, the attorneys argued that the workers’ statements were not voluntary because ICE’s conduct “shocked the conscience.” Detained workers were forced to sleep on cold concrete floors in holding cells and deprived of food or water for up to 18 hours.

In four separate cases, immigration judges responded favorably to attorneys’ arguments. They rejected the government’s position that these issues would be better left to federal courts to decide, and granted the attorneys’ motions to suppress the government’s evidence.

One conclusion that can be drawn from this experience: “It seems it’s very difficult for immigration agents to do a lawful raid,” said Ahilan Arulanantham, the ACLU attorney who helped lead the Raids Response Network. “The government consistently violates the law governing search and seizure when it conducts worksite raids.”

Added Stacy Tolchin, a Los Angeles attorney who also helped lead the coalition, “They didn’t follow the rules of law when they arrested people, when they interrogated them or when they litigated these cases in immigration court.”

In the aftermath of these victories, advocacy groups and the private bar have continued to collaborate. Important issues remain.

Ninth Circuit law is unsettled on whether immigrants have a right to advisals prior to being interrogated. ICE still conducts “fugitive operations” in which it targets certain immigrants, but ends up detaining anyone who happens to be in the home when agents show up – again violating the individualized suspicion standard.

The settlement of the “right to counsel” portion of the lawsuit in the Van Nuys raid stipulated that ICE had to allow attorneys’ access to their clients when ICE interviewed them. But problems with attorney access have cropped up in subsequent raids.

Perhaps the most heartening aspect is that the litigation brought to light some of the systemic abuses in our immigration system, particularly where detainees are concerned. As immigration attorneys, we hear such horror stories routinely. But it is rare that they get aired in court and in public, and even rarer that the government is held accountable.

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