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POtentIAL CAuses Of ICE's HOMe RAId MIsCOnduCt
jae wook LEE  (Homepage)
2016-07-05 11:08:38, 조회 : 367, 추천 : 101

POtentIAL CAuses Of ICE's HOMe RAId MIsCOnduCt

the prevalence of constitutional violations occurring during ICE's home raids campaign can likely be attributed to a number of interrelated factors, including, at least: 1) a series of 2006 ICE policy changes which altered the arrest expectations of ICE's primary interior enforcement squads; 2) the fact that suppression motions are an ineffective deterrent to ICE officers; 3) the barriers that the vulnerable target population of ICE home raids faces in availing themselves of traditional civil remedies for government misconduct; and, 4) management, training and supervision failures by iCe.

ICE's 2006 Performance Policy

in 2006, ICE issued three policy memoranda which set forth a series of dramatic changes in its enforcement strategy that collectively set the stage for the Bush Administration’s widely publicized campaign of immigration home raids.71 Prior to 2006, ICE Fugitive operation teams (Fots), consisting of approximately seven agents each, were expected to arrest 125 target “fugitives” — people who had been ordered deported but remained in the united states
— per year. Moreover, 75% of those arrests were required to be what ICE termed “criminal aliens.” in early 2006, however, ICE increased each Fot’s annual arrest quota from 125 arrests per year to 1000 arrests per year without any attendant increase in the size of the teams. overnight, Fots were expected to become eight times more efficient. simultaneously, the new
2006 quota system elimINAted the requirement that 75% of the arrests needed to be “criminal aliens.” several months later, in september 2006, ICE issued a further change which, for the first time, permitted Fots to count “collateral” arrests of civil immigration status violators
toward their new increased arrest expectations.72

these policy changes incentivized the pattern of unlawful behavior set forth above in at least two ways. First, it placed tremendous pressure on ICE agents to meet the new inflated arrest expectations. it seems no coincidence that the issuance of iCe’s
2006 Performance Policy coincided with ICE's increased use of home raids and the spike in complaints of misconduct arising therefrom. the pressure of the new expectations likely contributed to ICE agents’ disregard for law and policy in their zeal to meet their new performance expectations. second, the abandonment of the requirement to focus on “criminal aliens” and the permission to count collateral arrests of civil immigration status violators toward their arrest expectations likely contributed to the pattern of ICE agents seizing non-target residents without legal basis, and illegally searching homes for proof of immigration status and alienage without permission. the permission to count collateral arrests may also account for the high percentage of wrong or stale addresses raided by ICE agents.73 Agents are not incentivized to take the time necessary to gather reliable intelligence on targets; rather, the 2006 Performance Policy encourages them to raid any house where they believe or suspect they may find immigration status violators. By focusing on the easier to locate civil immigration violators, instead of the harder to locate dangerous targets, ICE agents were able to make more arrests in pursuit of their new arrest expectations. unfortunately, the increased arrest numbers come at a significant cost, not only in terms of the constitutional violations occurring during home raids, but also because the focus on collateral arrests has caused a significant decrease in ICE's efficiency at capturing their purported priorityargets: dangerous crimINAls and terrorists.74

it seems no coincidencethat the issuance of ice’s
2006 performance policy coincided with ICE's increased use of home raids and the spike in complaints of misconduct arising therefrom. the pressure of the new expectations likely contributed to ICE agents’ disregard for law and policy
in their zeal to meet their new performance expectations.



by focusing on the easier to locate civil immigration violators, instead of the harder to locate dangerous targets, ICE agents were able to make more arrests in pursuit of
their new arrest expectations. unfortunately, the increased arrest numbers come at a significant cost, not only in terms of the constitutional violations occurring during home raids, but also because the focus on collateral arrests has caused a significant decrease in ICE's efficiency at capturing their purported priority targets: dangerous crimINAls and terrorists.74



Lack of suppression Motions in Removal Proceedings

In criminal proceedings,

the exclusionary rule is one of the primary mechanisms
        a) we rely upon
        b) to ensure
                i) police comply with constitutional search and seizure requirements;

1) however,
        a) there are three factors
                i) which significantly undermine the deterrent effect
                        A) of suppression motions
                                I) on ICE agents.

First,

suppression motions are extremely difficult
        a) for respondents
                i) to win
        b) in immigration court.

In 1984,

the supreme Court made clear that
        a) suppression is not generally available
                i) in immigration court.75

The Court did, however, leave the door open
        a) for suppression
        b) in cases of
                i) “egregious” or
                ii) “widespread”
                        A) constitutional violations.

subsequently,
        
        a) lower courts and
        b) the Board of immigration Appeals (BiA)

1) have recognized that
        a) egregious constitutional violations do warrant suppression
                i) in removal proceedings.

While the definition
        a) of “egregiousness”

  remains murky and largely unsettled,

1) one thing remains clear:

        a. proving an “egregious” constitutional violation remains a significantly higher hurdle
                i) than is required
                        A) in criminal suppression motions.76

Second,

there is only a relatively small subset
        a) of deportation cases
        b) where suppression motions can alter the outcome
                i) of the proceedings.

Suppression motions are inconsequential

1) if ICE has an alternative source
        a) of evidence
        b) wholly independent of the constitutional violation.

Suppression motions are, therefore, only useful
        a) in the uncommon instances
                i) where there is some ambiguity
                        A) about whether or not the respondent is actually a united states citizen.

ICE bears the burden of proving that
        a) a person is not a citizen
        b) before the person can be deported.

If the only evidence
        a) ICE has
        b) of the person’s nationality

    was obtained
        a) through an egregious violation of the constitution,

1) then a suppression motion may bear fruit.

However,

in most other circumstances,

a suppression motion —
        a) even if granted —

1) would be futile.

FINAlly,

largely because of these first two factors,

1) unlike criminal practICE,
2) suppression motions have not traditionally been a standard part
        a) of removal defense practice.

Thus,

unlike their police counterparts,

1) most ICE agents have never been called
        a) to testify and
        b) account for their conduct
                i) at a suppression hearing.

Accordingly,

the threat
        a) of evidence being excluded
                i) due to the unconstitutional conduct of ICE officers

1) does not act
        a) as an effective deterrent
                i) to ICE agents
                        A) carrying out home raids, or
                        B) conducting other types of operations.

While the exclusionary rule has played a critical role
        a) in deterring Fourth Amendment violations
                i) in the criminal context,

1) the factors
        a) set forth above,
        b) together,

   work to make suppression motions
        a) in deportation proceedings
        b) relatively rare occurrences and
   undermine the deterrent value of such motions
        a) on ICE officers’ conduct in the field.

Barriers to Civil Remedies

Due to a variety of systemic and cultural factors,

1) immigrants are amongst the most vulnerable
        a) of populations
        b) in this nation’s legal system.

Fifty-two percent
        a) of the foreign born population

1) are limited english proficient.

Immigrants
        a) are also disproportionately poor and
        b) are significantly more likely to be lacking in basic education.77

Accordingly,

many immigrants simply lack
        a) the inclination and
        b) financial resources
                i) to hire private counsel.78

Immigrants are also often
        a) unfamiliar with The U.S. legal system and
        b) unaware of their rights
                i) under domestic tort law.

In addition,

many victims
        a) of home raids

1) are
        a) held in immigration detention
                i) following the raids
                ii) on their homes and
        b) then deported —
                i) limiting their opportunities
                        A) to pursue civil lawsuits.

These realities make it extremely difficult
        a) for immigrants
                i) who are the subject of Fourth Amendment violations
                        A) during ICE home raids
                ii) to avail themselves of traditional civil remedies.

Accordingly,

traditional civil remedies are also ineffective deterrents
        a) to unlawful ICE home raids.

Management and Oversight failures by ICe

FINAlly,

ICE official policy has been crystal clear
        a) for some time
        b) that officers
                i) cannot enter or search homes
                        A) without judicial warrants or consent and
                ii) may not seize persons
                        A) without a reasonable suspicion
                                I) that the person is illegally in the united states.79

However,

notwithstanding these clear official policies,

the evidence indicates that
        a) ICE agents are not routinely observing these agency policies.

This type of disconnect
        a) between agency policy and practice

1) is likely indicative of management, training and oversight failures
        a) by ICE supervisors and officials.80








IMPACt Of ICE HOMe MIsCOnduCt On LOCAL LAW enfORCeMent And PuBLIC sAfety





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