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Greg Siskind on Immigration Law and Policy

ICE HARRASSES IMMIGRATION LAWYER AT HIS HOME

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ICE officers executing warrantless searches and using intimidation tactics to unlawful entry to places of residence and work sites is something I've been reporting on in recent months. But this one is really interesting. And worrisome. Kevin Crabtree knows the law and can assert his rights. But what is the average person to do?

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Comments

  1. Jack Attorney's Avatar
    I'm not a lawyer, but this appears to be the synopsis of the complaint:

    "No federal law authorizes officers to enter and remain in the common access areas of an apartment building pursuant to an investigation without warrant, after having been requested to leave by the person in possession thereof. Because no federal law authorizes the officers' conduct, they are subject to state laws regulating that conduct."

    Just pretend I stayed at Holiday Inn Express last night.

    Can a tenant of an apartment (renting I assume) have "possession" of the common area - and deny (federal) law enforcement access to that common area?

    Must laws explicitly authorize every last behavior of law enforcement, or must the law explicitly prohibit behaviors?

    I don't have a bone in this fight. I just think the arguments are interesting.

    I think the second argument seems onerous - requiring authorization to control every last action of law enforcement, as opposed to explicitly prohibiting actions.

    I'm not familiar with tenant laws, so someone who is will have to explain the first argument.

    And not mentioned in the complaint was laws protecting attorneys and their relationship with clients. Suppose there was a client in the home. I assume that would be problematic for the attorney if he was in fact "harboring" the client. I assume that probable cause laws apply here. If they had probable cause, couldn't they could enter the apartment without a warrant? The fact that they didn't enter suggests to me that they didn't have probable cause.
  2. hmm's Avatar
    The answer depends on what the "average person" has got to lose. In some cases fortifying the doors/windows and planning a good escape route sounds like a good idea. But those who have nothing to fear may have to just let ICE in. Kevin Crabtree only got off the hook after he mentioned the fact he is an attorney. I am not sure calling 911 is a good idea either: police will come to check this is really ICE at your door, but after that I am betting they will side with ICE. Notice that Mr Crabtree did not call 911, and instead chose to mention his occupation. I suspect he did not want to install a new door afterwards.
  3. Legal and no longer waiting's Avatar
    "Can a tenant of an apartment (renting I assume) have "possession" of the common area - and deny (federal) law enforcement access to that common area?"

    Well, your assumption about renting may not be correct, and according to my condominium bylaws the owners own all common areas and may ask anybody to leave the common area, or ask for the towing services to tow their vehicles. The attorney asked them to leave unless they have some other business in the building (i.e. unless some other tenant or owner allows them to stay). Unlike Holiday Inn, the building is not open to the public. In a case of a hotel, the attorney would have had to contact the hotel management, who, of course, may ask anyone without a warrant to leave the premises.

    And yes, the attorney could have called the police, and the police would have had to remove the ICE agents from the private property. Would that have put the police in an tough position - yes. Would they have to uphold the law and ask the agents to leave - yes.
  4. Another voice's Avatar
    "ICE officers undergo extensive training on immigration and constitutional law."

    I guess these 2 skipped that class or just forgot their class notes all together.

    "But for my training as a lawyer, I have little doubt that my rights would have been completely brushed aside. By making criminal threats against my home and physical safety, threatening prosecution without probable cause or even reasonable suspicion, and refusing to respect my property rights, the officers clearly sought to dissuade the exercise of my constitutional right to be free from unreasonable searches and seizures."

    I guess they think the US constitution does not apply to them at all. The presumption of innocence must be something of a distant memory. If we thought ICE acts out of the play book of the Gestapo this confirms it.
  5. Another voice's Avatar
    Not a Lawyer either but know my rights!!!

    "Can a tenant of an apartment (renting I assume) have "possession" of the common area - and deny (federal) law enforcement access to that common area?"

    It does not have to be a rented apartment it could be an owed condo and therefore by paying association fees you in essence are par owner of the building';s common areas as well. Specially since they did not have a warrant nor motive to be there and were asked to leave, I am sure you can make a case for harassment and abuse of authority. You know that whole part about government for the people and by the people.

    "Must laws explicitly authorize every last behavior of law enforcement, or must the law explicitly prohibit behaviors?"

    There is a thing called due process and another constitutional amendment that deals with search and seizures. I believe that that would be covered under here. That is why a warrant is required and by being par t owner of the building common areas would be included.

    "I think the second argument seems onerous - requiring authorization to control every last action of law enforcement, as opposed to explicitly prohibiting actions."

    That is why there are laws written to make it a democracy and not a police state or a dictatorship where government can do as they please without any regards for people's rights.

    "And not mentioned in the complaint was laws protecting attorneys and their relationship with clients."
    This relates as to the information on the case at hand.

    "Suppose there was a client in the home. I assume that would be problematic for the attorney if he was in fact "harboring" the client. I assume that probable cause laws apply here. If they had probable cause, couldn't they could enter the apartment without a warrant?"

    No because then you would have enough to get a warrant, that is why there are protections against illegal searches. Any evidence gather during such operation would not hold in court.

    "The fact that they didn't enter suggests to me that they didn't have probable cause."

    Exactly they were just harassing a US citizen and abusing their power disregarding US laws which they are suppose to uphold as part of their mandate, not cherry pick which ones they like.
  6. AmericanFamily's Avatar
    This happened to me. I unfortunately was as the spouse of an out of status Alien not so quick on my feet. I should have stood my ground asked the ICE agents to come back with a warrant and closed the door and called my attorney.

    Instead I capitulated when the ICE agent brandished his gun while simultaneously communicating the threat; "don't make me arrest you for harboring a fugitive". If only I had the presence of mind to calmly refuse their entry and ask them to leave the grounds of our Condo complex located on a private street.

    I feel confident this would have given my husband time to go to his Embassy get a travel document and board the next plane without the horrific experience for our family of the detention and the "misplacing or losing" of my spouse within the "system".

    Hopefully Attorneys dealing with this counsel clients on what to do. Unfortunately ours never mentioned this "what if" scenario.

    I believed and continued to believe that in the case of a Spouse of a US Citizen, nothing could be more Unconstitutional, nor more extreme a case of "unreasonable search and siezure" given the Civil nature of the crime of a VISA overstay. You never hear of such a thing related to a Traffic Violation do you?

    I also question the punishment in our case 10 year bar to re-entry. Is that Constitutional? After all it certainly seems "extreme and cruel" in light of the sentences doled out recentlfy for TREASON, MARRIAGE FRAUD, and other Immigration related offenses. It certainly interferes with US Citizens right to persue life unaccosted by government. It is a selective sentence, in other words it only applies to certain Immigrant families, while others who have EWI are able to adjust status and avoid the ban. It also interferes with Marriage a Religious Sacrament.

    I wish one of you attorneys would file a suit against the government in some of these cases and test the water. Even if the court would not hear it, could it make things worse for these families than it is?



  7. Kevin Crabtree's Avatar
    As I mentioned in the letter, there is no manager of my apartment building. The residents control access to the common areas.

    The apartment building is not a business that is open to the public. Suppose a homeless person decided to sleep in the hallway in front of my door. Am I required to wait until 9 AM to call the off-site management company that runs the building? No. Because each of the tenants, in being granted the right to use the common areas, can exclude unauthorized persons who have no business there.

    Clearly, I cannot stop people from visiting my neighbors. But, if someone's only business is to talk to the occupants of an apartment, and he has completed that business (by having his questions declined), my right to use the hallway includes a right to exclude the person who is loitering from it.

    I wish I had the opportunity to fully brief the issue between the moment the officer threatened to kick my door down and the moment I responded. If I had, I would had made reference to the following federal regulations:

    8 C.F.R. 287.8(f)(2)

    An immigration officer may not enter into the non-public areas of a business, a residence including the curtilage [land adjacent to a dwelling] of such residence, or a farm or other outdoor agricultural operation, except as provided in section 287(a)(3) of the Act, for the purpose of questioning the occupants or employees concerning their right to be or remain in the United States unless the officer has either a warrant or the consent of the owner ****or other person in control of the site to be inspected***.

    (4) Nothing in this section prohibits an immigration officer from entering into any area of a business or other activity to which the general public has access or onto open fields that are not farms or other outdoor agricultural operations without a warrant, consent, or any particularized suspicion in order to question any person whom the officer believes to be an alien concerning his or her right to be or remain in the United States.



    This regulation essentially states the rules regarding unreasonable searches and seizures under the 4th amendment. The key thing is that ICE officers can do anything the general public can do. They can enter private residential property to knock on a door or ring a doorbell. They can walk into a grocery store like everyone else.

    However, unless they have a warrant, they must also follow the same rules as everyone else. It is simply not the case that the general public is allowed to hang out in the secured hallway of my apartment building, directly in front of my door, after I tell them to leave, particularly after that person threatens to kick my door down.

    Regarding the comment about whether a rule must prohibit conduct or authorize it. The point is that the conduct _is_ prohibited by the 4th amendment (and DHS' own regulations). There is no other federal statute or regaultion clarifying that the officers had a right to act as they did. Consequently, they are again subject to the same rules as every one else, which include state trespass laws.

    It's the same as if a USPS mail carrier drives 50 in a 25 mile per hour zone. Can he not break the state law simply because his conduct is incident to efficiently executing his federal function? Answer: He pays the ticket.

    Kevin Crabtree


  8. Greg Siskind's Avatar
    Thanks Kevin for posting follow up here. I hope you get a satisfactory ending to this.
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