Thursday, January 28, 2021
Guest post by Tania Valdez, Clinical Fellow, University of Denver Sturm College of Law
Episode 1 of Immigration Nation has several scenes that provide fodder for substantial discussion and participatory class exercises around suppression and termination. For background on these issues, the American Immigration Council has published a Practice Advisory that provides excellent information on motions to suppress and terminate.
The first scene in the episode (from around 30 seconds in to around 03:05) provides enough facts for a rich discussion of potential suppression issues based on regulatory violations.
The regulations at 8 C.F.R. § 287.8 provide parameters for ICE officers’ conduct. There are echoes of constitutional protections in some of these regulations, which students might recognize based on what they learned in their Criminal Procedure class.
- To detain someone temporarily requires reasonable suspicion that the person has committed an offense against, or is illegally in, the United States. Arrest requires “reason to believe” essentially the same. 8 C.F.R. § 287.8(b)(2), (c)(2)(i).
- A warrant is required, unless ICE can show that the person is “likely to escape” before a warrant can be obtained. 8 C.F.R. 287.8(c)(2)(ii).
- ICE may not enter a home or other non-public area without consent. 8 C.F.R. 287.8(f)(2).
- Use of force must be reasonable. 8 C.F.R. 287.8(a)(1).
- An officer must identify themselves as immigration officer at the time of arrest and state the reasons for the arrest. 8 C.F.R. 287.8(c)(2)(iii).
- An officer may not use “threats, coercion, or physical abuse” to induce someone to waive their rights or make a statement. 8 C.F.R. 287.8(c)(2)(vii).
One issue in the first scene that troubled students this past semester was that ICE officers represented, both verbally and by patches on their clothing, that they were “police.” This struck students as a misrepresentation—and possibly an illegal or at least unethical one.
Yet, there is no ban on ICE officers identifying themselves as “police.” The regulations only provide that an officer must identify themselves as an immigration officer “[a]t the time of arrest . . . as soon as it is practical and safe to do so.” 8 C.F.R. § 287.8(c)(2)(iii).
There have been some attempts to change ICE’s practice. In 2017, Representative Nydia M. Velazquez (D-NY) introduced H.R. 2073, a bill seeking to amend INA § 287 “to prohibit immigration officers or agents of the Department of Homeland Security from wearing clothing or other items bearing the word ‘police.’” Also in 2017, Los Angeles city officials asked ICE to stop identifying themselves as “police,” because the practice affects the willingness of immigrants to cooperate in criminal investigations and prosecutions.
Even though ICE officers stating that they are “police” is technically legal, the topic is certainly worth discussing as a class. There are also other regulations implicated in this same scene. For example, several of the facts raise a question regarding whether the officers truly obtained “consent” to enter the home: the operation is occurring in the wee hours of the morning when the household is asleep (causing obvious confusion for the occupants of the household), the officers bang on the door as if there is an emergency, they yell “Police!,” state they have a warrant but refuse to present it, and gain entry to the home by saying they want to show the woman pictures. These tactics at least cast doubt regarding consent and could lead to a lively class discussion.
A useful case to assign as class reading to prime discussion on the topic of consent to enter a home is Oliva-Ramos v. Attorney General, 694 F.3d 259 (3d Cir. 2012). Oliva-Ramos was a ground-breaking case (litigated by the NYU Immigrant Rights Clinic) where the court discusses at length ICE’s coercive tactics and the use of ruses to gain entry to a home.
Here is a skeletal lesson plan (for Zoom or in person):
- Watch Episode 1 of Immigration Nation. In the Immigration Nation episode, look for constitutional or regulatory problems you see with ICE’s conduct in the scenes where officers gain entry to homes, question, detain, and/or arrest people.
- Assign a case from your circuit. Since I was teaching in the Third Circuit, I assigned Oliva-Ramos v. Attorney General, 694 F.3d 259 (3d Cir. 2012), a fabulous clinic case.
Debrief film. I found this to be important to do first because of the heavy emotional content.
Present, or facilitate a discussion, on suppression and termination.
Argument exercise. I allocated 25 minutes for this exercise but would now plan for more like 45 minutes because the 10 students really got into it.
- Choose a “case” to litigate from among the violations students noted in the film. I selected the first scene.
- Divide class into breakout groups where teams come up with the best arguments for each side (citing facts and legal authority). We divided into two Zoom Breakout Rooms (5 students per room), one for Respondent’s counsel and one for DHS counsel.
- Come back together as a whole and hear arguments from each side, with professors (or students if they are comfortable) playing the IJ.
-posted by KitJ on behalf of Tania Valdez