Published on Monday, June 8, 2009 by the
Judge Halts Deportation of 4, Cites ICE Conduct
by Mary E. O’Leary
NEW HAVEN - Immigration Judge Michael W. Straus has terminated deportation proceedings against four city residents arrested in a 2007 raid because of the conduct of Immigration and Customs Enforcement officers.
Straus found that the four men's constitutional rights were "egregiously violated."
Straus said in a recent ruling that ICE agents illegally entered the apartments of the four men "without a warrant, without probable cause and without consent," a violation of their 4th and 5th amendments protections.
The judge found the actions of the agents, where they forcibly entered private homes and failed to demonstrate probable cause for arrest were not even "on the margin" of acceptable behavior.
Two of the men lived on one floor of a two-family house in Fair Haven, and the other two lived on another floor of the same building.
"They are all pretty happy," said Anant Saraswat, of his clients, who continue to live in the area. "If the government doesn't appeal, it is as if it (the arrests) never happened."
In addition to ending removal proceedings, Straus suppressed any evidence gathered by ICE because the men's constitutional protections to due process were violated and they never had a chance to cross-examine their accusers.
It was unclear Sunday night whether the Department of Homeland Security would appeal the ruling.
Saraswat is one of two law student interns with the Jerome N. Frank Services Organization at the
The four men were among 17 of the 30 residents arrested by ICE agencts June 6, 2007, in
Straus found the lawyers at the clinic substantiated a prima facie case for six of the individuals, a decision that shifted the burden of proof back to ICE. A prima facie case refers to showing a judge through essential facts that there is enough evidence for a case to exist.
"Case law dictates that the burden now falls on the Department of Homeland Security to produce evidence in support of its burden. The DHS has simply failed to do so," Straus ruled.
In all six cases, ICE refused to send the arresting ICE agents to be cross-examined in Straus's court in
In the case of both households, Straus found the testimony of the four men to be credible and consistent with other witnesses.
In two cases, agents entered the bedrooms of two men without their consent. Also, for each household, the agents pushed their way in when a door was opened slightly, according to testimony in Straus's ruling. The raids took place around 6:30 a.m.
With agents, who were armed, at both the front and back doors, the occupants did not feel they could leave, according to testimony. In all four cases, the agents only had warrants for men who did not live at the addresses where the raids took place.
In one of the households, a 10-year-girl witnessed the raid and her father testified "the female agent grabbed her roughly and took her into her bedroom." The father said his daughter was "terrified."
Straus said the fact that the raids targeted private residence was pertinent to his decision. "The touchstone of the Fourth Amendment is ‘reasonableness' and, by natural extension, one's reasonable expectation of privacy."
In one of the cases, the judge said ICE agents continued to ask a man about his immigration status after he indicated he did not wish to respond. The questioning was in English, despite the need for translation by his young son. Straus spoke of the "risk of coercion" in such situations when exits from the home are blocked.
Saraswat said the legal clinic has appealed the 11 cases where Straus ruled the lawyers had not made a prima facie case that the individuals' constitutional rights had been violated.
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"The master class has always declared the wars; the subject class has always fought the battles. The master class has had all to gain and nothing to lose, while the subject class has had nothing to gain and everything to lose--especially their lives." Eugene Victor Debs