New Haven Independent

The five immigrants will join 11 other people swept up in the raid in trying to have their cases thrown out of immigration court on grounds that their constitutional rights had been violated.

Originally, the five — all arrested on Atwater Street — weren’t going to join that proceeding because the judge had decided there wasn’t enough basis for him to hear their cases.

The judge, Michael Straus, changed his mind. He announced the change Monday morning in federal immigration court in Hartford. So now the “Atwater Five” will pursue having their cases thrown out, too.

Monday’s court session was originally intended to be the first of two to hear testimony from immigrants picked up in the federal ICE [Immigration, Customs & Enforcement] raids of undocumented immigrants in Fair Haven in June of 2007. In the end, none of the immigrants testified Monday; that’ll happen later this month.

The respondents, who face the possibility of deportation, were expected to give testimony that would show whether or not agents violated their constitutional rights in how they conducted the raid. The immigrants’ lawyers, from the Yale Law School, seek to suppress possibly incriminating evidence gathered during the raids by ICE agents, on the grounds that it was gathered unconstitutionally. (ICE denies the charge.)

Monday’s evidentiary hearing was the result of a decision by Straus two weeks ago, in which he decided that 11 of the 16 immigrants fighting their arrest in the raids would be given a chance to tell their side of the story. He was excluding five defendants.

But Straus opened the hearing on Monday morning by saying that he was now giving the same chance to the remaining five respondents, those who had been picked up at 199 Atwater St. during the raid.

“I’ve reviewed the Atwater cases,” Straus announced. “I will hold hearings on those cases.” He didn’t offer his reasoning.

“We’re thrilled,” said Hope Metcalf (at left in top photo) after the hearing. Metcalf is one of three supervising attorneys from the Jerome N. Frank Legal Services Organization, the law clinic at the Yale Law School that is representing the immigrants. “We’re really, really happy that they’ll get their day in court.”

Anant Saraswat (at right in top photo), one of the Yale law students working on the case, speculated after the hearing that Straus must have changed his mind after re-examining the cases and seeing how similar the Atwater cases were to the others.

Disagreement

Monday’s hearing began with a discussion of a motion in limine put forward by the Yale law team. A motion in limine defines, prior to testimony, what testimony is and is not admissible as evidence. It’s a motion that “sets out the ground rules,” Metcalf later explained. The immigrant’s lawyers sought to avoid a situation where their clients would give testimony that could be later used against them.

A motion in limine is a fairly standard part of criminal and civil court proceedings. But an immigration court, which is part of the executive and not the judicial branch, is not like other courts.

“I’ve never seen one in [immigration] court,” ICE attorney John Marley told Judge Straus.

Marley argued that the immigrants should be asked to give full answers and not be able to avoid answering questions that might incriminate them.

“If you’re looking to suppress a statement, you gotta know what that statement was,” he said.

Marley said that the respondents’ testimony would not be used later against them in immigration court. But Yale attorney Chris Lasch said he was concerned about the possibility that his clients’ testimony might turn up later in criminal court. He proposed a work-around in which potentially self-incriminating gaps in the immigrants’ testimony could be filled in with testimony from the ICE officers involved in the raids.

Marley objected to this idea, expressing incredulity at “the idea that we’re not going to ask questions… to shift the burden of proof onto our officers?”

“This is going to go nowhere, judge,” ICE attorney Leigh Mapplebeck said. She suggested that they “stop everything and go to the U.S. attorney’s office” to find out about testimonial immunity for the immigrants.

Judge Straus suggested that perhaps alternative language could be used by the respondents. “How about this?” he said, “What if they say ‘I admitted alienage’?”

“We’re not putting words in their mouth,” Mapplebeck said. “We’re not going to engage in guessing games.”

Attorney Mike Wishnie, head of the Yale law team, stood up.

“This hypothetical situation is not one that we anticipate playing out,” he said. “We never contended that they didn’t concede alienage.” Wishnie explained that the hearing was not about the immigrants’ legal status, but about whether the raids were conducted constitutionally. Nevertheless, the Yale lawyers still wanted to avoid testimony that might be used against their clients in future court proceedings.

“I don’t think your honor will find developing the facts to be a problem,” Lasch said.

At an impasse, Judge Struas called a recess. During the break, attorneys on both sides conferred and came back with an agreement to consult with the U.S. attorney’s office and get a decision on the testimonial immunity of the respondents before proceeding further.

“It doesn’t make sense to do half a hearing and then slam on the brakes and start dancing around the road cones,” Marley said. “Let’s get everything down.”

Wishnie agreed that a decision from the US Attorney’s office would “streamline the procedure.” “An immunity agreement will expedite the proceedings.”

Optimism

“We’re very pleased with the outcome,” Saraswat said after the hearing. He said that the Yale attorneys and the ICE attorneys had been in agreement on about 90 percent of the motion in limine. It was just the last 10 percent that had been the sticking point.

Asked about Marley’s comment that he’d never seen a motion in limine before, Metcalf said, “It’s also the first motion to suppress that’s gone forward… ever in this immigration court.” Metcalf said that the motion to suppress is an increasingly common strategy throughout the U.S. in immigration cases, but that it has not been used in Connecticut previously.

Metcalf was optimistic that that U.S. attorney’s office would grant her clients testimonial immunity. “Based on what we saw today, we’re hopeful we’ll be able to get that,” she said.

The next hearing in this case is scheduled for Oct. 27, when it is expected that the respondents will be cross-examined by ICE attorneys.