Publications

June, 2009

ARRESTS OF UNDOCUMENTED ALIENS

AT RANDOM & WITHOUT REASONABLE SUSPICION

The 5th Amendment of our Constitution specifically guarantees that no one may be obliged to incriminate himself/herself. When a police officer asks a passenger what his/her status is on a car stop, the passenger usually does not feel free to refuse to answer. Indeed if the passenger does not answer or has no ID the police usually arrest the passengers and turn them over to ICE. No Miranda warnings are given to a passenger or a pedestrian in these stops and since the police view this as immigration and not criminal law, the police do not observe the legal rules that a passenger or a pedestrian may refuse to answer and/or in the alternative, have recourse to a lawyer.

The Immigration Service has continued its detention program of passengers and pedestrians despite the new Administration’s promise to reform the Immigration laws and to reduce wholesale arrests that threaten the security of countless individuals and their dependent family members. The police invariably arrest passengers on hunches as to who looks American and who looks foreign. Judges have ruled that stopping people haphazardly based on an officer’s prejudices and presumptions if not based on probable cause or reasonable suspicion is illegal. This practice is contrary to our precedents and our Constitution.

MOTIONS TO SUPPRESS

Since entry without inspection is technically a violation of criminal law, or if an individual has reentered the U.S. without inspection after deportation the privilege of self incrimination is applicable.

Although Federal Courts have held that the rules of suppression of evidence do not usually apply in Immigration cases, haphazard interrogations by the police of passengers and pedestrians have a criminal import for an illegal alien. Random stops leading to interrogations and arrest are forbidden by the 5th Amendment if they are not based on probable cause or reasonable suspicion. These 5th Amendment rights extend to civil or criminal proceedings, administrative or judicial, investigative or adjudicatory. Duress by the police impairs the right of self incrimination protection for undocumented aliens.

REMOVAL PROCEEDINGS

Is there a constitutional right in immigration proceedings to suppress the evidence gained from illegal interrogation by the police?

An individual in a Removal Proceeding cannot ordinarily invoke the 4th Amendment (for unreasonable searches and seizures) unless there are egregious violations that transgress fundamental rights. In such cases, a defendant may invoke the right to suppress the evidence. Immigration Judges have granted the right of suppression in cases of these coercive practices.

Under the 5th Amendment, suppression applications are more likely to succeed. For example, pedestrians or passengers in cars who are subjected to interrogations without probable cause or reasonable suspicion may show evidence that their admissions were coerced and thereby avail themselves of the exclusionary rules that would prevent the police or immigration officers from using the evidence illegally obtained. These rights are still available under our Constitution to prevent police and ICE abuse but the detained individual must demand such rights in a proceeding, not just passively accepting the overreaching actions of the police or ICE.

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New York Immigration Lawyers > Immigration Publications > June 2009