MANHATTAN (CN) – The paperwork justifying the late-night raid on their home while they were sleeping said they were “known Hispanic migrants.” They were not shown a warrant.
On Wednesday, the Second Circuit excoriated the immigration judge who ruled that two Mexican migrant workers living in New York were not entitled to a hearing to suppress evidence about their immigration status from that search.
“We hold that because petitioners made a sufficient showing of an egregious constitutional violation, they were entitled to a suppression hearing,” U.S. Circuit Judge Denny Chin wrote in a scathing 25-page opinion.
Juan Martin Zuniga‐Perez and Elder Hernandez‐Ocampo say they were asleep when two Border Patrol agents and several local police knocked on the window of their rented room on Sept. 4, 2011 at 10 p.m., shouting: “Open the window. Open the door.”
The Department of Homeland Security has never produced the warrant, but the records prepared by immigration officials provided a thin explanation.
“Information received by [New York State Police] stated that a possible fugitive from justice was located at this address and in addition there were known Hispanic migrants residing at the residence,” the form stated.
After questioning the men about the fugitive, police turned to their immigration status.
Some four years later, Zuniga-Perez and Hernandez-Ocampo obtained counsel and moved to suppress the evidence of their immigration status as obtained via a bad search.
ʺI donʹt have the search warrant,” their attorney said in 2015. “I donʹt know if there was literally a search warrant or if it was an arrest warrant or what the state trooper[s] had.ʺ
An immigration judge found no constitutional violation in the search.
“Further, no agency violations occurred that would warrant suppression of any resulting evidence,” found the immigration judge, whose name is not listed in the Second Circuit’s opinion.
In March 2017, the Board of Immigration Appeals – the highest administrative appellate court under Attorney General Jeff Sessions’ Department of Justice – denied that the search was racially motivated.
“As the immigration judge found, the respondentsʹ affidavits do not allege, and there is no evidence to support a claim, that law enforcement officials took any action that was racially motivated or was taken because the respondents are Hispanic in appearance or are migrant farm workers,” the board ruled.
The Second Circuit’s three-judge panel pointedly disagreed with that assessment.
“Here, there is no evidence in the record of any illegal activity on the part of petitioners, and on this record a reasonable fact‐finder could conclude that they were targeted merely because they appeared to be Hispanic migrants,” Judge Chin wrote for the panel. “But being an Hispanic migrant is not a crime.”
The panel then quoted the dissent in Korematsu v. United States, the notorious U.S. Supreme Court decision that upheld Japanese-American incarceration camps in 1944.
“Indeed, ‘immigration enforcement that is based not on individualized suspicion but on ethnic generalizations teeters on the verge of ʹthe ugly abyss of racism,ʹʺ that quotation states.
The judges ordered a hearing to probe evidence of ethnic discrimination in the search.
“In the end, there may be legitimate, non‐discriminatory reasons for the officers’ actions here, and there may be specific and articulable reasons – beyond the mere presence of ‘known Hispanic migrants’ – for their belief that a crime had been committed,” the ruling states. “But those reasons are not apparent from this record, and there was more than ample reason for an evidentiary hearing.”
The Department of Justice did not immediately respond Wednesday to a request for comment.