9th Circuit Challenges ICE Warrant and Arrests, Reverses Deportation Order

News Analysis

A federal appeals court in California ordered an illegal alien who was captured during an immigration raid to be freed because the warrant used by U.S. Customs and Immigration Enforcement (ICE) indicated only that agents were searching for employment records, not preparing a large operation involving mass arrests of unlawfully employed foreigners.

Critics say the decision is a bad one because it over-emphasizes the due process rights of immigration lawbreakers and ties the hands of ICE to enforce the nation’s immigration laws.

Left-wing activists have “decriminalized illegal immigration so much that I wonder if it even is a crime anymore,” Tina Trent, a former candidate for District 26 of the Georgia General Assembly, told The Epoch Times. Trent is a writer and former academic who holds a doctorate in contemporary political and social movements from Emory University.

Robert Weissberg, a professor emeritus of political science at the University of Illinois at Urbana-Champaign, told The Epoch Times that nowadays, the poor are free to ignore the law.

“This recalls two legal terms: diplomatic immunity and extra-territoriality,” Weissberg said.

“Moreover, the idea that some people are immune to the law seems to be spreading. There is a total inversion of the old idea of one law for the rich, another for the poor. Now it’s one law for the rich, no law for the poor.”

John Sandweg, a former acting ICE director, told reporters the decision, which currently applies only to states such as California within the 9th Circuit of the U.S. Court of Appeals, is likely to make it more difficult for ICE to do its job.

“I think it’s a strong rebuke of ICE and the way in which they’re doing these worksite operations,” Sandweg said. “They’re just going to need to modify their behavior. It’s going to require ICE to be more candid in the warrants that their real targets are the undocumented workers, in order to avoid this.”

The 31-page opinion by a three-judge panel of the often-overturned 9th Circuit Court of Appeals concerned illegal alien Gregorio Perez Cruz. The decision, published June 13, came after Perez, a Mexican national who entered the United States unlawfully in 1994, appealed an unfavorable ruling by the Board of Immigration Appeals.

Judge Marsha Berzon, appointed by President Bill Clinton in 2000, wrote the court opinion.

Berzon held that ICE agents were not allowed to carry out pre-planned mass detentions, interrogations, and arrests at a workplace, in the absence of individualized reasonable suspicion.

In the case at hand, Berzon determined that ICE agents carried out a plan to target 200 to 300 illegally employed factory workers at Micro Solutions Enterprises, a Van Nuys, California, maker of printer cartridges, after receiving an anonymous tip in March 2006. In February 2008, ICE agents obtained a search warrant for employment-related documents at the factory.

Documentation established to the court’s satisfaction that ICE intended from the early planning stages to turn the execution of these warrants into a more aggressive law enforcement operation. An internal ICE memo indicated the agency “[would] be conducting a search warrant and expects to make 150–200 arrests,” and that ICE would have “two buses and five vans” for potential detainees from the factory and “200 detention beds available to support the operation.”

Berzon wrote that the record contained “clear evidence … that the plan was focused on the detention of the workers, not the search for documents.”

The search warrant “authorized a search only for the employer’s records presumably, paper documents or electronic files,” she wrote. “Yet, the agents used the warrant’s authority to enter the working area and detain hundreds of workers. Why a search for records required going onto the floor of a large printer-cartridge factory is unclear.”

During the raid itself, Perez was detained, questioned, and arrested for violating immigration laws, along with about 130 other workers. Perez asked for proceedings against him to be terminated, but the Board of Immigration Appeals found his detention and interrogation didn’t violate ICE regulations or the Fourth Amendment to the Constitution.

The left-wing open-borders group known as the American Civil Liberties Union Foundation of Southern California, along with lawyer Noemi Ramirez, who represented Perez in court, cheered the ruling.

“This victory is not merely Mr. Perez’s victory,” Ramirez said, “but a victory for people that value freedom, that believe the Constitution means what it says, and for those that believe that the immigrant community is not alone in their struggle.”