Immigrants use civil lawsuits to protest raids by federal agents
Connecticut Law Tribune
By CHRISTIAN NOLAN
Monday, November 16, 2009
Copyright 2009, ALM Properties, Inc.
In May 2006, the federal Immigration and Customs Enforcement agency launched “Operation Return To Sender.” The goal: track down, arrest and deport undocumented immigrants, particularly felons, gang members and other dangerous types.
Since then, ICE agents have conducted scores of raids on homes and workplaces. Advocacy groups and lawyers say some agents have been overly zealous, and the advocates have regularly gone to court to try to void arrests and block deportations. But in what seems to be a small, but significant trend, some have also gone on the offensive, filing civil lawsuits against ICE and its agents.
The most recent example is in Connecticut, where a Yale School of Law legal clinic has filed suit on behalf of 10 undocumented immigrants whose homes were raided in June 2007. Immigration attorneys differ on whether the claim has much chance of success. But most agree that litigation is an interesting strategy that could buy time in America for the clients and give ICE officials reason to reconsider tactics.
Attorney Alex Meyerovich, of Bridgeport’s M.C. Law Group, called the lawsuit part of a “cat and mouse game” between federal agents and advocates for immigrants. Similar claims have been filed following sweeps on immigrant homes in New Jersey, New York, Georgia and Northern California in recent years.
“What Yale is trying to do is to intimidate ICE,” said Meyerovich. “To show there is a potential liability if they step over an invisible border. It doesn’t matter if [the lawsuit] succeeds or fails. It’s an important power struggle.”
Meyerovich has few kind words for ICE agents, calling some of them “vigilantes.” But he also would not endorse the civil rights lawsuit. “If illegal immigrants succeed in this lawsuit, the message might come out, if you come into the country illegally and get arrested, your rights were violated. I think it’s the wrong message.”
ID Card Controversy
In the spring of 2007, New Haven officials decided to make ID cards available to all residents, including illegal immigrants. They said the cards would bring the newcomers into the mainstream by giving them a means to open bank accounts and access other services. The decision stirred up a furor. Some national commentators lamented that New Haven was turning into a safe haven for illegal immigrants.
Just days after the first cards were issued, ICE agents entered homes and arrested 29 immigrants. There was rampant speculation that the sweeps were in response to the new policy. But ICE officials maintained they were simply carrying out their mission and were not punishing New Haven.
Nevertheless, a team of students at Yale’s Immigration Clinic, which is part of the Jerome N. Frank Legal Services Organization, went to federal immigration court in Hartford to request full hearings for the detainees. Not only were they granted hearings, but they eventually persuaded the judge to temporarily halt deportation proceedings for a number of the immigrants. An immigration judge this summer ruled that the government “egregiously violated” the Fourth Amendment rights of the immigrants by entering homes forcibly without warrants.
Then last month the Yale students filed their lawsuit against 18 ICE agents and the United States. Citing e-mail messages between federal officials obtained via the Freedom of Information Act, the plaintiffs attempt to show hostility to the ID card program and intent to stop it. The lawsuit cites a conference call between ICE officials and prosecutors in which they discussed the “headaches in New Haven.”
One e-mail from an ICE attorney stated: “Yale is loading up the Amistad with illegal immigrants and sailing them to freedom, while [ICE counsel] openly weeps in Hartford.” The reference was to the 18th century slave ship commandeered by African captives who eventually won their freedom.
The lawsuit alleges ICE agents broke into homes without search warrants or consent, arrested residents based on their race or ethnicity, and violated the immigrants’ Fourth, Fifth and 10th Amendment rights. The suit seeks declaratory relief and monetary compensation for the immigrants.
“The people who planned the raids had a retaliatory motive,” said Ana Muñoz, a third-year law student working on the case. “People in D.C. knew their raid teams were violating the Constitution left and right and still agreed to approve this particular raid.”
Tom Carson, a spokesman for the U.S. Attorney’s Office in Connecticut, said the office would likely defend the lawsuit and that it had no comment. But Jeffrey Meyer, a former assistant U.S. attorney who now teaches at Quinnipiac University School of Law, said the government will almost certainly use sovereign immunity as a defense, and the agents will use qualified immunity. Federal agents are generally exempt from civil liability for on-the-job actions.
However, the Yale clinic filed its suit under the Federal Torts Claim Act, which allows plaintiffs to collect damages if federal officials commit a tort in violation of state law. The plaintiffs must do more than prove that the agents made mistakes or used poor discretion, Meyer said. The plaintiffs must prove that the agents knowingly violated “a clearly established legal rule.”
He provided this example: An agent with a warrant going into the wrong home could likely successfully assert immunity. But an agent kicking in the door of a residence with no warrant at all could be the violation of a clearly established legal rule.
Meyer predicted that while ICE would have a hard time getting the lawsuit dismissed, the immigrants would have to clear a “high hurdle” to win in court. “The outcome is going to depend on a fact-intensive review of whether these officers were acting reasonably in conducting these raids,” said Meyer. “They’re entitled to seek to detain persons who are here illegally in the country. The question is, how do they go about doing that?”
'Raw Force’
The hurdles Meyer mentioned have not stopped suits from being filed.
In 2007, nearly two dozen plaintiffs filed a class action against ICE after sweeps in New York City and on Long Island. The complaint alleges that ICE agents entered homes with submachine guns and shotguns, in one instance, pointing a gun at a man’s chest before searching his home without a warrant.
In April 2008, the Center for Social Justice at Seton Hall University Law School filed a lawsuit on behalf of 10 New Jersey plaintiffs who contend that ICE agents used “deceit or, in some cases, raw force” to gain “unlawful entry.” The lawsuit claims that agents, sometimes misrepresenting themselves as police officers hunting for criminals, entered homes and detained residents without showing any legal cause.
In Atlanta in 2006, the Southern Poverty Law Center filed a lawsuit claiming ICE agents harassed five U.S. citizens of Mexican descent because of their appearance during sweeps targeting illegal immigrants in southern Georgia. The lawsuit also claimed agents unlawfully searched homes and detained people merely because they looked Mexican.
Mary Bauer, legal affairs director for the Southern Poverty Law Center, said that such lawsuits became something of a trend in the years after ICE launched Operation Return To Sender. “I’m not sure people would do these cases for the money,” Bauer said. “Our clients did it for the principle. The point of this lawsuit was to change public policy, and to ask, ‘Is this what we want our government to do in the name of strict enforcement?’”
Bauer said the Georgia plaintiffs settled their lawsuit this summer and were awarded monetary damages.
Nevertheless, Connecticut attorneys say the New Haven immigrants face an uphill legal battle. For instance, they say that because immigration law is civil and not criminal, ICE agents have wider latitude in conducting searches than do police.
“From my perspective, I think it’s going to be a very tough case to win,” said Douglas R. Penn, of Stamford’s Barr & LaCava, who chairs the Connecticut chapter of the American Immigration Lawyers Association. Still, Penn believes the case is worthwhile. “I think it’s good to try to establish some set of standards” for ICE.
Another immigration attorney broached the touchy topic of whether illegal immigrants even have constitutional protections. “I don’t think they have much of a leg to stand on,” said Daniel Marcus, of Globman and Marcus P.C. in Hartford. “If I were a federal court judge, I’d say these people were here illegally and we don’t see how [ICE] infringed on their constitutional rights in anyway.”
Marcus called the lawsuit “a scholarly exercise that will wind up being futile.” He added: “Yale is doing whatever it can to keep these people here. That’s the basis of this. They’re trying to prolong their stays.”
But a lawyer with the Hartford immigration firm of Leete, Kosto & Wizner said she plans to keep close tabs on the case. “This is well-crafted, well-researched and certainly not frivolous,” said Virginia Carstens. This “is relatively unusual, particularly for immigration practitioners who are so focused on individual clients in removal proceedings. Most don’t venture into the Federal Tort Claims Act and some of the real constitutional claims raised here.”
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