Kennedy Park in Danbury, Conn., where in 2006 Ecuadorian day laborers were arrested in an immigration sweep they claim violated the Fourth Amendment. (www.uudanbury.org)
Ecuadorian day laborers arrested by Danbury, Conn. police in an immigration sweep have no right to suppression hearings and produced no evidence to prevent their deportation, the U.S. Court of Appeals for the Second Circuit held Thursday.
A divided circuit said the actions of Danbury police, who lured laborers into a van on the promise they would be driven to a job site but then arrested them, were not “egregious” Fourth Amendment violations that would allow redress in the immigration courts.
Judges Dennis Jacobs (See Profile) and Amayla Kearse (See Profile) were in the majority in Maldonado v. Holder, lead docket 10-3259, an appeal brought by 10 Ecuadorian laborers who are challenging their removal by immigration judges and the subsequent denial of their appeals by the Board of Immigration Appeals.
Judge Gerard Lynch (See Profile) dissented, saying the majority was wrong to deny the petitioners an evidentiary hearing given evidence that the Ecuadorians were improperly targeted.
The majority, in an opinion by Jacobs, said the behavior of the authorities was not even close to the standard for a rare exception to the general rule that the Fourth Amendment’s exclusionary rule does not apply in deportation proceedings.
The arrests took place on Sept. 19, 2006, when local police and federal agents with Immigration Customs Enforcement, (ICE), were conducting a sting operation.
The workers, who had gathered at Kennedy Park in Danbury looking for work, entered a van being driven by an undercover officer and were driven to a nearby parking lot, arrested, and shipped to Hartford and Boston for deportation proceedings.
Immigration judges denied their motions to suppress incriminating statements they made while in custody and, in 2008, ordered them deported.
Before the Board of Immigration Appeals, the Ecuadorians said newly discovered evidence showed that they had been arrested by Danbury police, not by ICE, but the appeals board dismissed their appeals in 2010 and denied motions to reopen in 2011.
Oral argument on the cases was heard by the Second Circuit on April 9, 2014.
On Thursday, Jacobs cited the U.S. Supreme Court, which said in INS v. Lopez-Mendoza, 468 U.S.1032 (1984) that the exclusionary rule does not apply to a deportation hearing, which “is intended to provide a streamlined determination of eligibility to remain in this country, nothing more.”
“The court left open whether exclusion might nevertheless be required for unspecified ‘egregious violations of Fourth Amendment of other liberties that might transgress notions of fundamental fairness,’” he wrote.
Jacobs said the standard for egregiousness, while undefined, “is very bad indeed,” even “more demanding than the test for overcoming qualified immunity” and “is therefore stringent, entails a shock to the conscience, and is rarely satisfied.”
The majority was not satisfied in this case, he said, because the petitioners claimed “only that they approached and entered the undercover vehicle without duress; they were self-selected; the driver did not appear to be looking for any specific individuals; and the driver seemed willing to take whoever got in first.”
Moreover, he said, the laborers “do not allege that they were treated in a particularly severe manner.”
The petitioners noted that Danbury police “never targeted the city’s better-assimilated Brazilian immigrant population, whose day laborers congregated at a different local site.”
“This alleged disparity,” Jacobs said, “would seem to refute rather than suggest a race-based animus.” He rejected the petitioners’ argument that ICE may not consider national origin, even with factors such as day laborer status and the experience of the local police.
“Such a rule would in effect require ICE to stop only the specific individuals it already knows are here illegally, and render egregious (and therefore, forbidden) ICE raids on sweatshops, forced brothels, and other settings in which illegal aliens are exploited and threatened ­—and much worse,” he said. “No system of immigration enforcement can run under these constraints.”
In dissent, Lynch said, “Petitioners here have offered evidence that, if true, suggests that after a multiyear harassment campaign targeted at Danbury’s Hispanic residents generally, and its Ecuadorian residents specifically, petitioners were arrested without plausible legal justification based solely on their ethnicity, national origin, and status as day laborers.”
“Worse,” Lynch continued, the majority held that even if there were a hearing, the petitioners couldn’t prove egregiousness “because, in the immigration context, law enforcement’s reliance on petitioners’ stays as apparently Latino day laborers, when shuffled together with the supposed experience of local law enforcement and a free-floating governmental interest in traffic safety, was not grossly improper.”
Lynch faulted the majority for erecting “a nearly insuperable barrier” to obtaining a hearing that “rests on a cramped definition of egregiousness that is inconsistent with our precedent.
Jacobs answered the dissent on several points, including the issue of targeting and Lynch’s statement that the definition if egregiousness lacks “precise boundaries.”
“Seizure of person based on nationality, race or ethnicity (or handicap or sexual orientation, for that matter) can no doubt rise to an egregious constitutional violation,” Jacobs said. “But it is absurd to foreclose altogether the consideration of nationality in immigration enforcement.”
The appeals of the 10 laborers were argued by Michael Wishnie, Supervising Attorney at Jerome N. Frank Legal Services Organization at Yale School. Supervising Attorney Muneer Ahmad and law student interns Alex Hammer, Roberto Saldana and Trinity Brown worked on the brief.
Andrew MacLachlan, senior litigation counsel at the Justice Department’s Office of Immigration Litigation argued for the government, with Assistant Attorney General Stuart Delery and Donald Keener, deputy director of the Office of Immigration Litigation, on the brief.