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[Title]
ICE HOMe RAId OPeRAtIOns
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ICE HOMe RAId OPeRAtIOns

several DRo and oi operations have, since 2006, come to rely heavily on home raids as a primary tactic. these operations include, among others, the national Fugitive operations Program (nFoP), targeting individuals with orders of deportation; operation Cross Check, encompassing enforcement efforts that target specific immigrant populations, such as immigrants from certain countries or immigrants working in certain industries;8 operation Community shield, targeting immigrant gang members; and operation Predator, targeting immigrant sex offenders. Despite
these operations purported focus on high priority
targets, the evidence demonstrates that the large majority of arrests made in home raids carried out under these operations are not of high priority targets but rather are collateral arrests of mere civil immigration status violators.9

ICE's nFoP is worthy of further explanation because of its size and because of the publicity its home raid operations have garnered. ICE created the nFoP, within DRo, in 2003.10 nFoP uses seven-person Fugitive operations teams (Fots) to carry out the Programs mission. the stated purpose of these teams is to expand the agencys efforts to locate,
arrest and remove immigrants with old orders of deportation,11 while giving priority to cases involving immigrants who pose a threat to national security and to the community. in 2006, ICE instituted several dramatic policy changes related to its Fots which, collectively, help explain ICE's increased reliance on home raid operations and the constitutional violations occurring during such operations. the policy changes inflated the arrest expectations for Fots eight-fold, while simultaneously removing a requirement that Fots focus on criminal aliens, and for the first time permitting Fots to count collateral arrests of civil status violators toward their inflated arrest expectations. the impact of ICE's 2006 revised performance expectations is discussed in detail later in this report.12 over the course of time, the number of Fots increased as well; while the nFoP started with eight Fots, today there are over 100 teams.13 Given the size of the nFoP and its primary reliance upon home raids, the behavior of Fots are of particular importance in assessing ICE's home raid strategy.



despite these operationspurported focus on high priority targets, the evidence demonstrates that the large majority of arrests made in home raids carried out under these operations are not
of high priority targets but rather are collateral arrests of mere civil immigration status violators.9



COnstItutIOnAL RequIReMents fOR ICE HOMe RAIds



the supreme Court has held that physical entry of a home is the chief evil against which the wording of the Fourth Amendment is directed.14 in the absence of consent from an adult resident,15 or exigent circumstances,16 a search conducted without a judicial warrant issued by an impartial magistrate17 is presumed to be in violation of the Fourth Amendment of the Constitution. Administrative warrants do not authorize agents to enter homes without consent because they are not issued by impartial magistrates.18 outside of the home, government agents are generally empowered to make warrantless arrests when they have probable cause to believe an individual has committed an arrestable offense.19
However, even where probable cause exists to make an arrest, government agents may not enter a home without a judicial warrant. the nature of the arrest — criminal vs. civil-immigration — has no bearing on the constitutional protections applied to the home.20

In addition, the Fourth Amendment restricts the power of police to seize people for investigatory purposes or to search a home without consent. the Constitution requires that an officer have reasonable suspicion that an individual is engaged in unlawful activity before the officer can seize the person, even for brief questioning,21 and generally requires a judicial warrant to search
a home.22 there is an exception to this rule when an officer, lawfully present inside a home, needs to search the home or briefly seize an individual to ensure the safety of the officer.23 In addition, agents can never rely solely on the racial or ethnic appearance or the limited english proficiency of an individual to justify a seizure.24these constitutional requirements should govern ICE's conduct in home raids. When an ICE agent enters a home without consent, armed only with an administrative warrant, it is a constitutional violation that goes to the heart of the Fourth Amendment.


these constitutional requirements should govern ICE's conduct in home raids. when an ICE agent enters a home without consent, armed only with an administrative warrant, it is a constitutional violation that goes to the heart of the fourth Amendment.


Further, even if an ICE agent is lawfully in a dwelling, he generally violates the Constitution if he searches the home without consent (or beyond the scope of the consent) or if he seizes an occupant without a reasonable suspicion that the individual is engaged in unlawful conduct.


ICE POLICIes GOveRnInG HOMe RAIds

DHss own regulations and policies incorporate the constitutional requirements set forth above. During home raids, ICE agents are generally armed only with administrative arrest warrants issued by an immigration official, rather than judicial search or arrest warrants issued by a neutral judge.25 these administrative warrants do not require a showing of probable cause, as in the case of judicial warrants.26

According to ICE's own Detention and Deportation officers Field Manual, Warrants of Deportation and Removal are administrative rather than crimINAl, and do not grant the authority to breach doors.

thus informed consent must be obtained from the occupant of the residence prior to entering.27




Accordingly, when targeting residences, both DRo and oi agents are supposed to follow similar mandatory knock-and-talk procedures laid out in official ICE manuals.28 the Field Manual explains that officers can knock on a door and request to speak with the occupants of the house without first obtaining a search warrant. However, in order to enter a residence, someone who has authority to do so must grant informed consent, unless a court-approved search warrant is obtained in advance.29

if consent is given, ICE agents are permitted to enter the home and ask questions regarding the location of the intended target.30 if agents encounter other people in the home, agents are permitted to seek consent to ask questions regarding immigration status.31 However, agents may not detain the occupants for questioning unless they have a reasonable suspicion, based on specific articulable facts, that the person being questioned . . . is an alien illegally in the united states.32 if, after lawful questioning, agents develop a reason to believe that an individual is in The United States illegally, they can arrest them without a warrant and transport them to the local immigration processing center.33

ICE agents are also permitted to request consent to search the residence, or a portion of it.34 But agents are not permitted to search portions of the premises other than those for which consent to search has been given, and have been instructed that consent to remain in the house and to search can be revoked at any time.35 the only exception to this general rule is when ICE agents have reasonable suspicion that the premises harbor a person who poses a danger to the agents — in which case the agents are permitted to conduct a protective sweep.36 However, agents have been instructed that any protective sweep [can] extend only to areas in which the potentially dangerous person(s) could be hiding.37





In recent years, individual accounts from across the country demonstrate a suspiciously uniform pattern of constitutional violations during ICE home raids. these accounts are documented in civil law suits, suppression motions in immigration proceedings, and local and national media
coverage. these narratives show a trend that establishes three distinct types of conduct which violate the Fourth amendment: entering and searching homes without warrants, exigency or consent, and then seizing residents without reasonable suspicion. the pattern which emerges from the individual narratives is supported by the observations and statements of local political and law enforcement leaders, who have a unique vantage point to view ICE misconduct in their communities. FINAlly, this report examines empirical data drawn from ICE's own arrest records from two separate ICE field offices and publicly available suppression motion data. Collectively, the evidence strongly suggests a significant and disturbing pattern of ICE misconduct during home raids.


eMPIRICAL evIdenCe


data from ICE Arrest Records

ICE regulations, which carry the force of law, require that:

An immigration officer may not enter into . . . a residence . . . unless the officer has either a warrant or the consent of the owner or other person in control of the site to be inspected. When consent to enter is given, the immigration officer must note on the officers report that consent was given and, if possible, by whom consent was given.38

Accordingly, review of ICE arrest reports should reveal whether or not consent was obtained prior to the entrance of ICE agents into a residence. since ICE does not obtain judicial warrants for its home raids, entering a home without consent is a violation of the Fourth Amendment of the Constitution.

two data sets of ICE arrest records were reviewed in preparation for this report to examine whether, among other things, consent was noted on the arrest records. the first data set was obtained pursuant to a Freedom of information Act (FoiA) lawsuit and included arrest records from home raid operations in nassau and suffolk County, new York between January 1, 2006 and April 18, 2008 (hereINAfter Long island data set). this data set included the ICE arrest records related to 100 randomly selected individuals arrested in home raids out of the total of 457 such arrests during this period.39 the second data set was also obtained through a FoiA lawsuit and included 600 electronically available arrest reports from home raid operations conducted by the newark, new Jersey ICE offICE and the Central new Jersey ICE offICE on certain dates between February 22, 2006 and December 7, 2007 (hereINAfter the new Jersey data set).40


ICE agents from the new york and new Jersey field offices failed to obtain lawful consent to enter homes in violation of the constitution in a large percentage of cases.




Fig. 1: new Jersey
Consent data






e Obtained
Consent
76 %

ICE Failed to
Obtain Consent 24%



Fig. 2: long island
Consent data





ICE Obtained
Consent 14%



the data from both sets reveal several alarming trends. As set forth in Figures 1 & 2, based on the assumption that ICE is following its own legal requirements regarding notation of consent, and based upon ICE's public statements that it does not obtain judicial warrants in home raid operations, both data sets demonstrate that ICE agents from the new York and new Jersey Field offices failed to obtain lawful consent to enter homes in violation of the Constitution in a large percentage of cases.interestingly, the data from the two data sets show significantly different rates of illegal entries by ICE agents during home raids. there are several possible explanations for the difference. the two data sets involve ICE agents from different field offices. it is possible that the supervision, training, and culture of the ICE offices are sufficiently different to account for the marked difference in the rate of illegal entries during home raids. it is also possible, that record keeping practices vary between the offices such that the new York offICE may be failing to note consent in some instances when it is actually obtained and/or the new Jersey offICE may be noting consent in some instances when it is not actually obtained.

indeed, there are some indications that the officers from the new Jersey Field offices are, in some instances, either fabricating consent in their reports or misunderstanding the legal requirements of consent. For example, in one arrest record from the new Jersey data set, an officer notes that [t]he newark Fugitive operation team . . . gained access into apartment [redacted] by way of knocking, thus the door was opened from the intensity of the banging. upon slowly entering the apartment at [redacted] i noticed that [redacted] was approaching the doorway. the same arrest report incorrectly states: Gained Access to home via: subject gave consent — apparently boilerplate language that appeared in many new Jersey arrest records. Moreover, in a handful of cases from the new Jersey data set, we were able to match arrest records that noted consent, with detailed eyewitness accounts of those raids, which contradicted the arrest records accounts of consent. even if the new Jersey arrest reports are taken at face value, it is possible that the new Jersey data was skewed in ICE's favor since, unlike the new York data, the new Jersey arrest records were not randomly drawn.

Whatever the cause of the divergence between the two data sets, they share one crucial trait: they both evince an unacceptable level of illegal entries by ICE agents during home raid operations in violation of the Fourth Amendment. if this data were the only evidence of such illegal entries it might be possible to discount these statistics as record keeping failures. However, when placed in the context of the other evidence set forth below, these arrest records serve to confirm the widespread nature of the violations occurring in the new York and new Jersey field offices.

[t]he high percentage of collateralarrests is consistent with allegations that ICE agents are using home raids for purported targets as a pretext to enter homes and illegally seize mere civil immigration violators, in order to meet inflated arrest expectations.41




Figures 3 & 4 break out the percentage of target arrests versus collateral arrests of civil immigration violators made in each home raid data set. Both data sets demonstrate that the large majority of home raid arrests from the new Jersey and new York Field offices do not involve the purported targets of the operations. this data is instructive because the high percentage of collateral arrests is consistent with allegations that ICE agents are using home raids for purported targets as a pretext to enter homes and illegally seize mere civil immigration violators, in order to meet inflated arrest expectations.41

Here, the data is notably consistent between the two data sets, showing that only approximately one-third of all home raid arrests are of targets. the remaining two-thirds of the arrests are of civil immigration violators who ICE happens to encounter during home raid operations.



A review of the arrest records also demonstrated that, notwithstanding the legal requirement that



Fig. 3: new Jersey
target vs. Collateral data





Collateral Arrests
63%


target

37%



Fig. 4: long island
target vs. Collateral data



Collateral Arrests




67%



Arrests
33%
ICE has some reasonable suspicion before it detains and questions individuals, the large majority of arrest reports articulated no basis for the initial seizure.


A review of the arrest records also demonstrated that, notwithstanding the legal requirement that ICE has some reasonable suspicion before it detains and questions individuals, the large majority of arrest reports articulated no basis for the initial seizure.

Again, the data is extremely consistent and suggestive of widespread Fourth Amendment violations by
agents from the new Jersey and new York Field offices. While, unlike the consent data, there are no regulations specifically requiring ICE agents to note the basis for their initial stop, such information is precisely what one would expect to find in an arrest report. Further, the fact that such information is included in approximately one-third of such reports, suggests that ICE agents are trained to include the information.
Fig. 5: new Jersey Basis for seizing & questioning





no Basis noted

Fig. 6: long island Basis for seizing & questioning





no Basis noted
65%


FINAlly, the data also revealed a disturbing trend suggestive of racial profiling by ICE agents during home raid operations by the new Jersey and new York Field offices. specifically, the data demonstrates that Latinos are significantly overrepresented in collateral arrests by ICE agents during home raids. Figure 7 below compares the percentage of Latinos arrested as targets with
[t]he data also revealed a disturbing trend suggestive of racial profiling ... specifically, the data demonstrates that latinos are significantly overrepresented in collateral arrests by ICE agents during home raids.the percentage of Latinos arrested as collaterals in both data sets.

Presumably, the ethnicities of the targets ICE seeks is a good indicator of the ethnic compositions of the immigrant communities in which ICE operations take place. Accordingly, it is difficult to explain why significantly more Latinos (21% more in new Jersey and 28% more in Long island) are arrested as collaterals than as targets during home raid operations. indeed, in both jurisdictions, the vast majority of collateral arrest records where ICE officers did not note any basis for seizing and questioning the individual were of Latino subjects — 90% in new Jersey and 94% in Long island. this data lends empirical support to the community complaints that during home raids ICE agents seize Latino residents based simply on their ethnic appearance or limited english proficiency.

Fig. 7
Percentage of Arrestees who were Latino








this arrest data raises profound concerns over the constitutionality of ICE's home raid operations. the data is, of course, limited to two jurisdictions and it is possible that data from other jurisdictions could vary. However, the consistency of the new Jersey and Long island data on most points, at minimum, raises the possibility of an agency-wide problem. it is difficult to imagine why the problems identified in these jurisdiction would be any less prevalent in ICE operations elsewhere. the data on the rate of illegal entries is the exception — since it varied dramatically between the two jurisdictions. this is certainly worthy of further investigation, though it is important to remember that even the better jurisdiction still showed officers illegally entering homes in one quarter of home raids.


suppression Motion data



the increasing prevalence in recent years of suppression motions being brought in removal proceedings, alleging constitutional violations by ICE officers is another indication of the widespread practice of illegal home entries during ICE operations. to be sure, not all such motions are reflective of an actual underlying constitutional violation. However, in immigration court, unlike in criminal court, suppression motions are not a standard part of removal defense practice — many


12 b Constitution on iC e b Cardozo i mmigration justice Clinic



immigration attorneys will go their entire career without filing a suppression motion. Accordingly, the statistics set forth below demonstrating a sharp increase in the filing of such motions after ICE expanded its home raid operation in 2006 is one more indication of the widespread Fourth Amendment violations occurring during ICE home raid operations.

suppression motions are rarely brought in immigration court, in part because in 1984 the supreme Court ruled that, since deportation proceedings are civil, not crimINAl, respondents are not generally entitled to suppression even when evidence was obtained in violation of the Constitution.42 However, the supreme Court also reasoned that the exclusionary rule may be available in immigration proceedings for egregious or widespread Fourth Amendment violations, and lower courts and the immigration courts have subsequently recognized egregious constitutional violations as a basis for suppression.43 nevertheless, suppression motions remain extremely difficult to win in immigration proceedings, as they are very labor intensive, require Respondents to meet a high legal standard, and are often mooted out by evidence obtained independent of the constitutional violation.44 Moreover, in most deportation cases ICE does not need to rely upon evidence it gathered during an arrest. therefore, even if a respondent in a deportation proceeding can prove an egregious constitutional violation, it is uncommon that a suppression motion can alter the outcome of a deportation proceeding. Accordingly, in most cases suppression motions, even if meritorious, are futile and therefore will not be filed.

in preparation for this report, a Freedom of information Act request was filed with the executive offICE for immigration Review — the agency which oversees the federal immigration courts — seeking statistics on the prevalence and outcomes of suppression motions. unfortunately, the agency does not track such data and was thus unable to substantively respond to the request. As a result, the best available data on the prevalence, outcome, and type of suppression motions being filed in immigration court is the on-line database which compiles opinions from the Board of immigration Appeals (BiA) — the administrative court that reviews immigration judge
decisions.45 this database does not, however, contain all agency decisions related to suppression motion. the database only contains published BiA decisions and selected unpublished BiA decisions, and does not contain any immigration court decisions — where we would expect to find the majority of decisions discussing suppression motions. Accordingly, the data set forth below significantly under-represents the prevalence of suppression motions. However, the data remains instructive, not in regard to the raw numbers, but rather in regard to the trends demonstrated by the prevalence, types, and outcomes of suppression motions.

Comparing the period between 2006, when ICE instituted its new arrest performance expectations
Fig. 8number of Motions to supress




Pre 2006 motions

Post 2006 motions








and vastly expanded its home raid operations, and June 2009, to an equal period of time immediately preceding 2006, we looked at three variables: (1) the number of suppression motions filed, (2) the number of suppression motions involving home raids, and (3) the number of suppression motions granted. Figure 8 compares the raw numbers in each category between the periods before and after the 2006 policy changes and the expansion of ICE's home raid campaign.

Again, the raw numbers are not particularly instructive because of the limitations in the data set discussed above. However, the trends are noteworthy. since 2006, there has been a nine-fold increase in the filing of suppression motions, a twenty-two-fold increase in suppression motions related to home raids, and a five-fold increase in the grant rate of suppression motions.



since 2006, there has been a nine-fold increase in the filing of suppression motions, a twenty-two-fold increase in suppression motions related to home raids, and a five-fold increase in the grant rate of suppression motions.


While the data set of recent suppression motions is far from complete, the significant uptick in the filing of suppression motions is one more indicator of a pattern of illegality arising out of, among other things, ICE's home raid campaign. together, the arrest report and suppression motion data appear to demonstrate a significant pattern of constitutional violations occurring during ICE home raid operations in new York and new Jersey and are suggestive of a national pattern.


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