Blog Archive

Monday, November 1, 2010

Judge throws out ICE Aspen deportation case

By Andrew Travers
Aspen Daily News
October 30, 2010

A Denver immigration judge recently threw out a deportation case against three allegedly undocumented foreign workers from Aspen, finding that federal immigration authorities illegally raided their Lazy Glen home in March of last year.

The raid on the three-story cabin, where nine adults and three children were staying, was conducted around 5:30 a.m. on March 24, 2009. Agents entered the house, woke up the residents in their bedrooms, yelling that there was an automobile accident outside and stating they were police. They then detained eight of the residents as illegal immigrants.

One man was immediately deported. The other seven have challenged the legality of the raid in immigration court, through Glenwood Springs attorney Ted Hess.

The raid was conducted by a Glenwood Springs-based U.S. Immigration and Customs Enforcement (ICE) team, led by special agent Steve Turza.

In a 13-page ruling issued Oct. 21, Immigration Judge John W. Davis suppressed all collected evidence and dismissed the deportation cases against sisters Isabel and Citlali Guerrero, both housekeepers at the Aspen Square Condominium Hotel at the time of the raid, and Mario Alberto Soto-Gutierrez.

Judge Davis ruled that the warrantless, consentless raid was illegal.

Such rulings based on the U.S. Constitution’s Fourth Amendment are rare in immigration cases, and Hess said Friday that it was the first of its kind in Colorado.

Only if a search is found to be an “egregious” violation of search and seizure rights as defined in the Fourth Amendment, immigration judges have the authority to throw cases out.

“While interpretations of ‘egregiousness’ may vary,” Judge Davis wrote, “the decisions made by the ICE agents, particularly Special Agent Turza, who led the investigation, were beyond what a reasonable officer could or should have believed was lawful ... The court finds that the agents’ pre-dawn entry compiled with blatant misrepresentations to sleeping residents, conveying terrifying news of an accident is, in fact, egregious.”

Hess praised the judge’s ruling. “He could not in good conscience, uphold the raid,” Hess said.

Agent Turza testified that ICE received an anonymous tip in November 2008 that residents of the Lazy Glen cabin were in the U.S. illegally, and may have been involved in the theft of a television from the Aspen Square. The raid occurred five months later.

“The plan was simple: knock on the door and get consent to speak to the aliens,” Turza is quoted by the judge as testifying.

He testified that they conducted the operation in the pre-dawn hours because the residents were known to commute to work early in the morning. He said they did not get consent before entering because their knocks on the door went unanswered and his team feared the residents may have been poisoned by a carbon-monoxide leak, as an Aspen family had several months earlier.

The judge referred to this reasoning as a “ruse” and wrote that Turza also testified that the door was open when they arrived, which would diminish any possibility of a carbon monoxide problem.

“Generally,” Judge Davis wrote, “the Court found the agents’ testimony to be unreliable.”

Hess characterized it more bluntly: “This is one of the few times you will actually get an immigration judge saying that they [the ICE agents] lied.”

The judge wrote of the detainees: “All of the witnesses testified credibly that they were awoken in the pre-dawn hours and that the agents were identifying themselves as ‘police’ and yelling about an accident as they knocked on the various bedroom doors in the house.”

Citlali Guerrero testified at a July hearing in Denver that she had been sleeping in a room with her 5-year-old son when the ICE officers woke them. “The biggest mistreatment was psychological,” the judge quotes her as testifying.

As their deportation cases have proceeded, all seven local respondents have been released from detention facilities, either on immigration bonds or under ICE monitoring.

Hess said the Aspen area raid was part of an ongoing and largely unchecked trend of improper ICE operations, in which agents illegally enter homes, seize residents there who are not targets of the investigation, and then detain them based only on their racial or ethnic appearance. It was documented in a recent Benjamin N. Cardozo School of Law study, titled, “Constitution on ICE.”

“They are just going freaking crazy,” Hess said, “and because this is a distinct and insular and disenfranchised minority, they are getting away with it ... I’m not going to go as far as calling them Nazis but these are Gestapo tactics. They are running roughshod over fundamental rights.”

Most cases of this kind do end in deportation, Hess said, because the individuals do not hire lawyers or fight the legality of such raids. “I was really happy when this particular group decided to stand up and resist,” he said.

A spokesman for ICE was reviewing Judge Davis’s ruling Friday, but did not respond with any comments before press time.

The deportation proceedings are still pending against four of the Lazy Glen residents. Hess is asking to have those cases dismissed under the same grounds as the case Judge Davis threw out. Those hearings are in court in on Apr. 25 and June 20, 2011.