Tuesday, February 5, 2008

Judge rules against immigrants defended by Yale lawyers

By Mary E. O’Leary
Register Topics Editor
— Immigration Judge Michael Straus Monday ordered the deportation of nine day laborers pulled over in an immigration sting more than a year ago by Danbury police.
Appeals however, are expected to keep the case alive for years and the men, who are mainly from Ecuador, will remain in the U.S.
Yale attorneys representing the group filed motions to suppress evidence and terminate proceedings against the nine, claiming actions by police and federal Immigration and Customs Enforcement officials violated constitutional protections and internal ICE regulations.
Straus rejected all their claims. If he had agreed with the defendants, they would have had an opportunity to prove their case in a trial.
The case now goes to the Bureau of Immigration Appeals, which could take more than a year to rule. The challenge to Danbury police and methods used by ICE are ultimately expected to be decided by the 2nd Circuit Court of Appeals in New York.
“The ruling declares open season on day laborers,” said Simon Moshenberg, a student at the Yale Law School’s Worker and Immigrant Rights Clinic, which represented the men.
Moshenberg and several co-counsels from the law school argued the Danbury police could not legally make a civil misdemeanor immigration arrest, while both Danbury police and ICE officials violated 4th Amendment protections against unreasonable search and 5th Amendment due process protections.
They also argued unsuccessfully that a search warrant was necessary before the arrest, that the men were denied several requests for lawyers, that they were racially profiled by Danbury police, while ICE violated numerous internal procedures in the operation.
Straus ruled “solicitation of day labor in our current culture has a strong correlation to undocumented presence in the United States and lack of employment authorization” and for this reason it was not unreasonable for police to question the men, nor was it racial profiling.
The judge also said the immigrants had no right to counsel prior to being placed in deportation proceedings, nor do officers have to advise individuals of their right not to cooperate.
The ruling comes two days before the Danbury Common Council votes whether to deputize its local police as federal immigration officers, something that was lacking in the Sept. 16, 2006 arrest of the nine day laborers.
A large protest by the Ecuadorian and Brazilian communities in Danbury are planned for that day.
In a separate case, the Yale clinic is representing the majority of the 30 immigrants arrested in New Haven last May, where they are also expected to challenge ICE’s actions as unconstitutional.
The men in Monday’s case were approached by an undercover Danbury police officer pretending to be a contractor, who wanted them to work on a fence. The police officer then drove them to a parking lot several blocks away, where after exiting the vehicle, they were surrounded by law enforcement officials.
They were taken to the Danbury police department where they were questioned, fingerprinted and booked by the police, who never charged them, but rather turned them over to ICE officials.
Most of the men were jailed for up to two weeks in Hartford, Boston and Texas before family and attorneys were able to secure bail for nine of the group, with two of the original 11 in the group leaving the country.
Danbury Mayor Mark Boughton sought previously to have state police deputized to help enforce immigration law, but Leonard Boyle, the public safety commissioner at the time, said it would have been too much of an additional burden on a strapped state police force.
No special arrangement is necessary for local and state police to assist or arrest undocumented immigrants wanted on criminal charges, rather than civil violations, such as being in the country illegally.
Boughton, who has been in office since 2001, has advocated for strict immigration enforcement, including local policies aimed at tough housing code regulation, while police have used traffic stops to check immigration status.
Danbury, which had a population of 78,736, according to 2006 census estimates, unofficially estimates the number of Ecuadorians living there at 8,750 with Brazilians numbering 11,500.
ICE, in its brief to Straus, said the Danbury police notified them that they planned an enforcement action to stop persons “in and around Kennedy Park from running out into the roadway and endangering pedestrians and motorists.”
ICE attorney John Marley said it was well-know that illegal immigrants used the park to find employers who would hire them for a day and that the city had tried to warn them of the dangers of doing so.
Mary E. O’Leary can be reached at 789-5731 or moleary@nhregister.com

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