UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BALTIMORE, MARYLAND

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1 Rama M. Taib* Adam N. Crandell* Stephen Brown* Fariha Quasem* Maureen A. Sweeney, Supervising Attorney University of Maryland School of Law Immigration Clinic 500 W. Baltimore Street, Suite 360 Baltimore, MD NON-DETAINED UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BALTIMORE, MARYLAND ) In the Matters of: ) ) Elizabeth GALLEGOS-TORRES ) File No. : A and ) A Natalia PALAEZ-TORRES ) ) ) In removal proceedings ) ) ) Immigration Judge Phillip T. Williams Next Hearing: November 16, 2009 at 8:00am. RESPONDENTS MOTION IN LIMINE *Law student enrolled at the University of Maryland School of Law and participant in the Law School s clinical program, practicing under 8 C.F.R (a)(2) and Maryland Rule 16.

2 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BALTIMORE, MARYLAND IN THE MATTERS OF Elizabeth GALLEGOS-TORRES and Natalia PALAEZ-TORRES IN REMOVAL PROCEEDINGS CASE # A A RESPONDENTS RESPONDENTS MOTION IN LIMINE Respondents, Elizabeth GALLEGOS-TORRES and Natalia PALAEZ-TORRES had their Master Calendar Hearings on October 29, 2008 at 9:00am. Each filed Motions to Suppress Evidence based upon their unlawful arrest which constituted an egregious violation of their Fourth Amendment rights to be free from unreasonable searches and seizures in the privacy of their own home and bedroom, as well as their Fifth Amendment rights to due process. See INS v. Lopez Mendoza, 468 U.S (1984). DHS filed responses to Respondents motions on March 6, 2009 and March 20, On March 17, 2009, the Court granted Respondents Motion to Consolidate, Motion for an Extension of Time to Respond to DHS's Brief, and Motion for Continuance. Respondents subsequently filed a Reply Brief and Supplement in Support of their consolidated Motion to Suppress on April 29, Respondents next hearing is scheduled for November 16, 2009 at 8:00am. In the absence of explicit direction from this Court, Respondents anticipate that the scope of inquiry at during the first phase of the November 16 hearing will be limited to the facts and circumstances surrounding their detention and arrest such that this Court will be able to rule on Respondents suppression motion.

3 COME NOW the Respondents, by and through the undersigned counsel, and hereby move this Court enter an Order in Limine, holding that: 1. Respondents may not be questioned, directly or indirectly, regarding alleged alienage, country of origin, immigration status, or removability during their suppression hearing on November 16, 2009; 2. Any testimony given in the course of adjudicating Respondents Motion to Suppress will not be admissible in the case-in-chief to establish allegations contained in the Notices to Appear, including those regarding alleged alienage, country of origin, immigration status, or removability; 3. Respondents bond applications and proceedings, including any and all statements related to alienage, country of origin, immigration status, or removability contained therein, will not be admissible in the case-in-chief to establish the allegations contained in the Notices to Appear; 4. Any information contained in any potential benefit applications for which Respondents may be eligible, the basis for which arose solely out of the events surrounding their detention and arrest by ICE agents, including any and all statements or information regarding alleged alienage, country of origin, immigration status, or removability, will not admissible in the case-in-chief to establish the allegations contained in the Notices to Appear. In support of their motion, Respondents submit the following arguments and legal authorities: I. Respondents should not be questioned, directly or indirectly, regarding alleged alienage, country of origin, immigration status, or removability in connection with the adjudication of their Motion to Suppress Evidence.

4 Information related to Respondents alleged alienage, country of origin, immigration status, or removability is not relevant to the issues that this Court must initially consider in the course of adjudicating Respondents Motion to Suppress Evidence. The question raised by the suppression motion is whether ICE agents acted unlawfully when, lacking a valid warrant, reasonable suspicion or exigent circumstances, they entered Respondents bedroom, detained Respondents without reasonable suspicion, engaged in impermissible racial profiling, violated Respondents Fourth and Fifth Amendment rights, and contravened ICE s own regulations governing the arrest, detention, questioning and treatment of suspects. Respondents will testify as to the events of June 30, 2008, and the circumstances surrounding their illegal detention, arrest, and postarrest processing during the portion of the proceedings related to the issue of suppression. Inquiry into any other matter at this time, including Respondents alleged alienage, country of origin, immigration status, or removability would be extraneous and irrelevant and therefore should not be allowed. Questioning Respondents regarding their alleged alienage, country of origin, immigration status, or removability implicates Respondents Fifth Amendment privilege. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. In In re Gault, the Supreme Court held that this privilege is available to a witness in any proceeding, criminal, civil, or administrative, potentially involving a significant deprivation of liberty. 387 U.S. 1, 47 (1967). Consistent with Gault, the Board of Immigration Appeals (BIA) has long recognized that this privilege applies to witnesses who testify in immigration proceedings. Matter of Sandoval, 17 I & N Dec. 70, 72 (BIA 1979) (finding that the respondent s admission at the hearing concerning her alienage was elicited from her after she was improperly denied her Fifth Amendment privilege against self-incrimination ); Matter

5 of King and Yang, 16 I & N Dec. 502, 503 (BIA 1978) ( [I]t is beyond the power of an immigration judge to reject a valid Fifth Amendment claim. ) Moreover, it is a well-settled principle that one should not have to surrender one constitutional right in order to assert another. Simmons v. United States, 390 U.S. 377, (1968). Accordingly, the Supreme Court has expressly explained that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection. Id. The BIA has consistently recognized that the principle of Simmons, that testimony elicited during a suppression hearing should not be admissible as evidence of guilt, should extend to immigration proceedings. See, e.g., Matter of Wong, 13 I&N Dec. 820, 821 at n.1 (BIA 1971) (citing to Simmons as illustrative of the principle that defendant s testimony in support of motion to suppress [is] not usable against him at trial on issue of guilt ); Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971) (describing use of the suppression rule in immigration court as similar to that which prevails in criminal matters ). Additionally, the Fifth Amendment privilege against self-incrimination applies in removal hearings where the alien's testimony could expose him to future criminal prosecution. Garcia- Quitero v. Gonzales, 455 F.3d 1006, 1019 (9th Cir. 2006) (citing Wall v. INS, 722 F.2d 1442, 1443 (9th Cir. 1984). Recent estimates for fiscal year 2009, based upon data compiled from the first nine months of the fiscal year, suggest that criminal prosecutions for immigration-related offenses will be up nearly 139% from levels reported only five years ago and 459% from levels reported 10 years ago. 1 Specifically, prosecutions involving first-time entrants represent over 40,000 of the near 68,000 total new immigration prosecutions during the first nine months of this See Immigration Prosecutions at Record Levels in FY 2009, published by TRAC Immigration, available online at

6 fiscal year. Id. Thus, the 5 th Amendment s protection against self-incrimination is necessary in Immigration Court when there is a possibility that a respondent could potentially face criminal charges arising from any admission of alienage, entry without inspection, or other factual matters alleged in a Notice to Appear. In conformity with 5 th Amendment constitutional principles and the Simmons, Wong, and Tang line of cases, this Court should disallow questions intended to directly or indirectly elicit testimony regarding Respondents alleged alienage, country of origin, immigration status, or removability. II. Any testimony given in the course of adjudicating Respondents Motions to Suppress Evidence should be inadmissible in the case-in-chief Respondents should not be questioned, directly or indirectly, regarding alleged alienage, country of origin, immigration status, or removability in connection with the adjudication of their suppression motions. If, however, for any unforeseeable reason, testimony is given or elicited related to such issues, it should not be admissible as part of the case-in-chief to establish allegations contained in the Notices to Appear. See, e.g., Matter of Wong, 13 I&N Dec. 820, 821 at n.1 (BIA 1971) (citing to Simmons as illustrative of the principle that defendant s testimony in support of motion to suppress [is] not usable against him at trial on issue of guilt ); Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971) (describing use of the suppression rule in immigration court as similar to that which prevails in criminal matters ). Following this Constitutional principle would be analogous to the regulation governing bond hearings, see 8 C.F.R (d), which provides that custody or bond proceedings shall be separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding. Maintaining preliminary suppression hearings separate and apart from individual merits hearings is as important to the judicial process as keeping custody and bond hearings

7 separate from individual merits hearings; both instances require separation as a way of protecting individual rights. See supra Part III. This Court should therefore disallow the introduction in the case-in-chief of any testimony given or elicited during proceedings related to Respondents suppression motion. III. Respondents bond applications and proceedings, including statements regarding alleged alienage, country of origin, immigration status, or removability contained therein, should not be admissible as evidence in the case-in-chief. Evidence of alleged alienage, country of origin, immigration status, or removability contained in Respondents bond applications or proceedings should not be admissible in the case-in-chief. The regulations state that bond hearings are "separate and apart from, and shall form no part of, any deportation or removal hearing or proceeding." 8 C.F.R (d). The BIA and at least one Circuit Court of Appeals have ruled that this regulation prohibits the consideration of evidence submitted in a removal proceeding from bond hearings. In re Adeniji, 22 I & N Dec. 1102, 1115 (BIA 1991) (stating that Information adduced during a removal hearing, however, may be considered during a custody hearing so long as it is made part of the bond record ); see also Al-Siddiqi v. Achim, 531 F.3d 490, (7th Cir. 2008); Matter of R-S- H- et al., 23 I. & N. Dec. 629, 630 n.7 (BIA 2003); Matter of Balderas, 20 I. & N. Dec. 389, 393 (BIA 1991). The Immigration Court Practice Manual 9.3(e)(v) further supports this position, stating that [s]ince the Record of Proceedings in a bond proceeding is kept separate and apart from other Records of Proceedings, documents already filed in removal proceedings must be resubmitted if the filing party wishes them to be considered in the bond proceeding. The same interest in justice and fairness counsels the application of this regulation in the opposite; any evidence obtained during bond proceedings should be excluded from these removal proceedings. The effect of admitting such evidence would be to require a Respondent to relieve the

8 government of its burden to prove its case so that the alien may secure bond. Such a result would be fundamentally unfair. Moreover, any statements submitted during Respondents bond applications and proceedings regarding alleged alienage, country of origin, immigration status, or removability, should be excluded from these proceedings as fruit of the poisonous tree stemming from the egregious 4 th Amendment violations that resulted in Respondents arrest and detention. Respondents detention occurred as a direct result of their arrest on June 30, Their detention occasioned the bond determination hearings, where Respondents submitted argumentation and statements in order to secure their release during removal proceedings. The evidence submitted during these hearings, then, should be excluded from the case-in-chief as evidence tainted by the initial 4 th Amendment violations; the bond hearings were necessitated as a direct result of the unlawful search and seizure that occurred on June 30, 2008 and any submissions made during the bond proceedings were made only in order to defend against the seizure. Orhorhaghe v. I.N.S., 38 F.3d 488, 505 n.27 (9th Cir. 1994). IV. Information contained in any potential immigration benefit application, eligibility for which arises solely out of the events surrounding Respondents detention and arrest by ICE agents, including statements regarding alleged alienage, country of origin, immigration status, or removability contained therein, should not be admissible in the case-in-chief. Any statements or admissions regarding alleged alienage, country of origin, immigration status or removability contained in a benefit application, the basis for which arose solely out of the events which are at issue at Respondents suppression hearing, should not be used as evidence to establish alienage in the case-in-chief. Allowing DHS to produce evidence of alienage contained in such an application in this case would be fundamentally unfair and run counter to the very purpose served by the form of relief for which Respondents may be eligible.

9 First, it is granted that in Matter of Cervantes-Torres, 21 I&N Dec. 351, 353 (BIA 1996) the BIA held that DHS could rely upon evidence of alienage contained in an immigration benefit application which the respondent willingly and independently provided. In Cervantes-Torres the BIA addressed the admissibility of a Form I-688A employment authorization card to establish the respondent s alienage where the respondent had filed a motion to suppress based upon an illegal arrest. Id. The BIA began its analysis by stating that [i]irrespective of the applicability of the exclusionary rule, we do not agree that the respondent s own voluntary submission of his Form I-688A is a product of his illegal arrest. Id. (emphasis added). From this premise, the BIA concluded that respondent s application was admissible to establish his alienage notwithstanding his suppression motion. However, the BIA s conclusion in Matter of Cervantes-Torres is not determinative of the outcome of Respondents immediate request. The critical premise upon which the BIA rests its conclusion - that the respondent s submission of an employment authorization card was not a product of his illegal arrest - implies that where a benefit application is a product of an illegal arrest, evidence contained in such an application should not be admissible to establish alienage. It must then follow that where eligibility for a benefit application arises out of the circumstances surrounding an illegal arrest - such as eligibility for a U-Visa arising out of an assault that occurred during the arrest - submission of such an application by a Respondent is necessarily a product of [the] arrest, and any evidence of alienage contained therein should be suppressed. Respondents, therefore, should be able to submit any benefit application for which they may be eligible, the basis of which arose during the course of, and as a result of, their arrest at issue before this court, without jeopardizing the outcome of their pending suppression motion.

10 Moreover, a finding by this Court that any statements or admissions made concerning alienage, country of origin, immigration status or removability in a potential benefit application will not be admissible as evidence in the case-in-chief could serve to expedite the final resolution of Respondents situation. Free from the fear that their statements could be used against them, Respondents would be able to pursue such applications, as may be available to them, while the current litigation in this Court is still pending, rather than waiting for final adjudication of the present case before filing applications with U.S.C.I.S. Given, the government s interest in expediency in resolving matters such as those in this case, it would be in the interests of all parties involved for this Court to rule favorably on this motion, so that Respondents may be free to pursue potential benefits for which they may qualify and which arose solely out of the circumstances of their illegal detention and arrest. WHEREFORE, Respondents respectfully request that this Honorable Court enter an Order in Limine, holding that: 1. Respondents will not be questioned, directly or indirectly, regarding alleged alienage, country of origin, immigration status, or removability during their suppression hearing on November 16, 2009; 2. Any testimony given in the course of adjudicating Respondents Motion to Suppress will not be admissible in the case-in-chief to establish allegations contained in the Notices to Appear, including those regarding alleged alienage, country of origin, immigration status, or removability; 3. Respondents bond applications and proceedings, including any and all statements related to alienage, country of origin, immigration status, or removability contained therein, will

11 not be admissible in the case-in-chief to establish the allegations contained in the Notices to Appear; 4. Any potential benefit applications for which Respondents may be eligible, the basis for which arose out of the events surrounding their detention and arrest by ICE agents, including any and all statements regarding alleged alienage, country of origin, immigration status, or removability, will not admissible in the case-in-chief to establish the allegations contained in the Notices to Appear. Elizabeth Gallegos-Torres and Natalia Palaez-Torres, Respondents By counsel for Respondents Respectfully Submitted, Rama M. Taib* University of Maryland School of Law Immigration Clinic 500 W. Baltimore Street, Suite 360 Baltimore, MD Adam N. Crandell* University of Maryland School of Law Immigration Clinic 500 W. Baltimore Street, Suite 360 Baltimore, MD

12 Stephen Brown* University of Maryland School of Law Immigration Clinic 500 W. Baltimore Street, Suite 360 Baltimore, MD Fariha Quasem* University of Maryland School of Law Immigration Clinic 500 W. Baltimore Street, Suite 360 Baltimore, MD Maureen A. Sweeney, Supervising Attorney University of Maryland School of Law Immigration Clinic 500 W. Baltimore Street, Suite 360 Baltimore, MD *Law student enrolled at the University of Maryland School of Law and participant in the Law School s clinical program, practicing under 8 C.F.R (a)(2) and Maryland Rule 16.

13 United States Department of Justice Executive Office for Immigration Review Immigration Court Baltimore, Maryland In the Matters of: Elizabeth GALLEGOS-TORRES, Natalia PALAEZ-TORRES A Numbers: , ORDER OF THE IMMIGRATION JUDGE Upon consideration of Respondents Motion in Limine, it is HEREBY ORDERED that the motion be GRANTED DENIED because: DHS does not oppose the motion. The respondent does not oppose the motion. A response to the motion has not been filed with the court. Good cause has been established for the motion. The court agrees with the reasons stated in the opposition to the motion. The motion is untimely per. Other: Deadlines: The application(s) for relief must be filed by. The respondent must comply with DHS biometrics instructions by. Date Certificate of Service This document was served by: [ ] Mail [ ] Personal Service Phillip T. Williams Immigration Judge To: [ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien s Atty/Rep [ ] DHS Date: By: Court Staff

14 In the Matters of: Elizabeth GALLEGOS-TORRES, Natalia PALAEZ-TORRES A Numbers: , PROOF OF SERVICE On, I,, served a copy of this Motion in Limine and any attached pages to Office of the Chief Counsel at the following address: 31 Hopkins Plaza, 7 th floor, Baltimore, Maryland, by first class mail. (signature) (date)