You Have Civil Rights Regardless Of Your Immigration Status


You Have Civil Rights Regardless Of Your Immigration Status

Posted by Alexander Carl | Nov 09, 2017 | 0 Comments

8 C.F.R. 287.8(b)(2) provides that an immigration officer may briefly detain an individual only if the officer has "reasonable suspicion, based on specific articulable facts" that the person is engaged in an offense or is an alien illegally in the United States.  This regulation is designed to benefit persons and aliens in the United States.  

The Fourth Amendment in the United States Constitution, in general, protects people against unreasonable searches and seizures.  Any evidence that is the fruit - result - of an unreasonable search and seizure can not be used against an individual in court.  This is sometimes referred to as fruit of the poisonous tree.  

In Sanchez v Sessions, the U.S. Court of Appeals for the Ninth Circuit, which is our circuit court here in California, made an important ruling.  

The U.S. Court of Appeals for the Ninth Court held that Coast Guard officers who detained Sanchez, after they assisted him when his boat died of the coast of Oxnard California, and thereafter called ICE because they suspected he was in the U.S. illegally, committed an egregious Fourth Amendment violation because they detained Sanchez solely based on his Latino ethnicity. 

The Court concluded that because the Coast Guard seized Sanchez based on his Latino ethnicity alone, the seizure violated Sanchez's 4th Amendment right under the U.S. Constitution.  Therefore, any evidence obtained as a result of the unlawful seizure is inadmissible in court.  Consequently, Form I-213 (Record of Deportable/Inadmissible Alien) which was prepared after Sanchez's immigration arrest, and was used to establish Sanchez's illegal entry into the U.S. and alienage, could not be used against him in Immigration Court. 

Furthermore, the Court held that the Government violated its own regulation, 8 C.F.R. 287.8(b)(2), which is provided above, and therefore Sanchez's removal proceedings must be terminated.  

This case is important because it upholds aliens rights under the 4th Amendment to the U.S. Constitution and protection under 8 C.F.R. 287.8(b)(2), whether or not you reside in the U.S. lawfully or unlawfully.

In general, this means that while in the U.S. an officer may briefly detain you only if the officer has reasonable suspicion based on specific articulable facts that you have committed an offense or are in the U.S. unlawfully. One's ethnicity is not a lawful basis for brief detention, frisk or arrest.    Any evidence which is the fruit of this brief detention, frisk or arrest  can not be used against the individual in Removal Proceedings and can be a basis for termination of Removal Proceedings. 

Your ethnicity is not a lawful basis to conduct a search or seizure. 

Alexander G. Carl Associate Attorney

About the Author

Alexander Carl

Partner - Bolour / Carl Immigration Group, APC. 323-218-0465 Email: Email Me Areas of Practice Business Immigration Family Immigration athletes, entertainers and artists Naturalization Education Loyola Law School, Los Angeles, California Juris...


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