By Erin O’Brien, Esq., Associate Attorney
Widespread news reports and current litigation throughout the country make it clear that Immigration and Customs Enforcement (ICE) is using racial profiling as a tool to detain people across the United States.. There are countless stories of ICE detaining even U.S. citizens. A temporary restraining order in Southern California has blocked the federal government, including ICE, from engaging in enforcement that stems from profiling people based on their race, language spoken, employment, and location.
In another recent arrest of a U.S. citizen, ICE went as far as to say that the U.S. citizen doesn’t have rights in the United States. This is completely false. Both United States citizens and those who lack immigration status have rights when confronted by ICE agents/officials.
It is important to remember that regardless of immigration status, every person in the United States has the right:
- To remain silent and not answer questions from an immigration official
- To deny entry to your home to an immigration official if they do not have a judicial warrant for the correct person and the correct home address
- To refuse to sign any document that an immigration official gives you
- To ask if you are free to leave a public space, should an immigration official stop you
While it is easier to remember these rights when reading them, it is oftentimes harder to assert them when stopped or detained by immigration officials/agents. The goal of a stop or detention by ICE officials/agents is to obtain a confession that someone lacks legal status in the United States. ICE then uses this confession to support the allegations and charges that they will file to place someone in removal proceedings in Immigration Court. But there is a powerful mechanism to try to block confessions, information, and documents that the government has obtained during a stop or detention that occurs as a direct result of racial profiling. This tool is called a Motion to Suppress.
In the context of immigration proceedings, a non-citizen can file a Motion to Suppress to request that the Immigration Judge exclude any and all information that the government obtained from a non-citizen as a result of a stop and detention that violated either the Fourth or Fifth Amendment of the United States Constitution. The Fourth Amendment provides for the right of people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…” The Fifth Amendment protects against the deprivation of life, liberty, or property without due process of the law.
In the immigration context, Motions to Suppress largely stem from violations of the Fourth Amendment, unreasonable searches and seizures. The Supreme Court has found that a seizure occurs when a person does not believe they are able to walk away from the government official or agent. During a stop or detention by ICE, officials will almost always ask for identification and proof of immigration status in the United States. Depending on many factors, including if the non-citizen felt free to walk away and the length of the stop or detention, an ICE stop can constitute a search and seizure, therefore invoking the Fourth Amendment.
The Supreme Court of the United States, in INS v. Lopez-Mendoza, held that courts should suppress evidence when there are “egregious violations” of the Fourth Amendment. Various Circuit Courts have adopted different interpretations of what constitutes an egregious violation, but it is important to demonstrate that ICE’s action in stopping a non-citizen because of their race is part of a widespread pattern, therefore satisfying the requirement of an egregious violation.
Motions to Suppress are fact-intensive inquiries. A non-citizen must demonstrate through detailed accounts of the stop or detention that ICE’s stop was an unconstitutional search and seizure in violation of the Fourth Amendment, due to racial profiling or another egregious violation. As a result of the attention that immigration enforcement has received since the beginning of the Trump administration in January, there are many news reports to demonstrate that ICE has engaged in racial profiling when stopping and detaining people.
When a non-citizen is placed in removal proceedings, the government has the burden to prove the non-citizen’s alienage and that they are in the United States without legal status. The government will often use information that they gather during the stops, such as: passport or identification cards from a non-citizen’s country of origin, the non-citizen’s statement that they do not have immigration status in the United States, or information from the non-citizen about their date and manner of entrance into the United States. Once that information is disclosed to ICE, they will use that information in removal proceedings against a non-citizen.
However, when a non-citizen files a Motion to Suppress based on an Unconstitutional search and seizure, they are requesting that the Judge exclude all information and documents obtained during, or as a result of, the stop. If the judge grants the Motion to Suppress, the government cannot use that information to support the removal proceedings initiated because of the stop and detention. If a non-citizen is successful in their Motion to Suppress, the Immigration Judge will usually terminate the non-citizen’s removal proceedings because the government was not able to prove their case against the non-citizen.
While terminating removal proceedings for a non-citizen does not provide a pathway to legal status such as a green card, it is a helpful and underutilized tool to hold the government accountable for improper ICE stops, and to allow a non-citizen to have their immigration proceedings terminated and to be released from detention.
If you have questions about Motions to Suppress, an experienced and understanding immigration attorney can help you explore your options and guide you through the process. To discuss your situation, please contact Erin O’Brien, Esq. or call our office at (610) 975-4599 to schedule a consultation.
Be sure to mention this article when reaching out for your consultation.
Reviewed by Brendan Ryan, Esq., Family Immigration & Federal Practice Department Chair