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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Immigration Attorney Harassed By ICE At Home

by Bill O. Hing

Editor's note: This article originally appeared as a blog posting on Immigration Prof Blog on March 10, 2008. Blog Editors Kevin R. Johnson and Bill O. Hing.

A private attorney friend, Kevin Crabtree, had an encounter with ICE agents at his private residence that has led to his filing a complaint with DHS. Fortunately, Kevin knows his rights, of course. But just think of the countless others who are daily intimidated by ICE agents who are unaware of their rights or intimidated into waiving their rights. Kevin has agreed to allow us to post his letter of complaint.

LAW OFFICE OF ROBERT L. LEWIS

409   13TH STREET, 16TH FLOOR, OAKLAND, CA 94612
Telephone: (510) 834-1288   Fax: (510) 834-0431

February 5, 2008
Officer for Civil Rights and Civil Liberties
U.S. Department of Homeland Security
245 Murray Lane, SW
Building 410
Mail Stop #0800
Washington, DC  20528

Dear Officer:

Please accept this letter as a complaint against Officers "John Doe" and Caroline Hum of USICE-San Francisco, who came to my private residence on the morning of February 4, 2008 at 8:15 a.m.  My home address is --------------------, Apt 2, San Francisco, California.

I am a citizen of the United States and an attorney at law.  I practice immigration law exclusively, with a particular focus on removal defense.  I consequently have frequent interactions with employees of USICE and USCIS in San Francisco.

So, it was an interesting coincidence that two ICE officers rang my doorbell this morning–having bypassed the street security gate and buzzer that most people understand to be an indication that the 12-unit apartment building is not open to the general public.  At 8:15 a.m., as I happened to be discussing case strategy on the phone with co-counsel regarding a bond hearing the same day, my apartment doorbell rang.

I opened the door and was greeted by Officer Hum.  She identified herself as an ICE officer.  She was accompanied by a male officer, who did not identify himself.  Officer Hum stated that she was looking for an individual, but she had difficulty articulating the individual's name.

I inquired whether the officers possessed a judicial warrant to enter the premises.  The officers did not respond.  I then stated to the officers that I declined to answer any questions, and I stated to them that they needed to leave.  Officer Hum then stated "that's fine, we're just going to wait here until you come out."

After I closed the door, the unidentified male officer stated, "I'm going to kick your door down."  He also threatened me with prosecution for alien harboring.

I continued to speak to the officers through my closed door.  I again inquired whether the officers had a judicial warrant to enter my premises, as the male officer had stated he would forcibly enter my residence.  They did not respond.  I stated to the officers that they were not entitled to forcibly enter my home without a judicial warrant.

I next instructed the officers to leave the common space of my apartment building, unless they had other business at the building.  The officers refused to promptly leave.  I informed them that they must leave private property when requested if they did not possess a judicial warrant.  I stated that I would call the San Francisco Police Department. 

The male officer inquired whether I was the manager of the apartment building.  I informed him that I was not the manager, but that I had a right to possession of the common area, and that I chose to exclude the officers from the common areas of the building.  I further stated to the officers that they had no claim to possession of the property.  The male officer stated that "your claim is not valid."  He stated that he would contact the apartment building manager, which I invited him to do.  There is no on-site building manager.  Control of the premises is exercised by the residents.

The officers then continued to loiter directly in front of my apartment door for approximately 15 minutes.  This made it difficult to continue my phone conversation with co-counsel regarding the bond hearing.  Due to the lay-out of my apartment, it is easy to overhear conversations through my front door.  The doors are also made of shaded glass.  Out of courtesy, the residents do not loiter in front of each others doors because of the invasion of privacy this causes.

Towards the end of the exchange, I asked the officers why they were at my residence, to which they did not respond.  At this point, I disclosed to the officers that I am an immigration defense attorney and that I would therefore decline to answer any questions related to their enforcement efforts.  Officer Hum then gave me her contact information and I believe the officers left, although they may have been lurking about the building.

As an American citizen, I feel that it is very important that the representatives of my own government respect the law rather than break it.  The conduct of the unidentified officer in threatening to kick down my door, though he obviously lacked the legal authority to do so, is indefensible.  Such behavior is unbecoming a federal law enforcement agent.  The officer's threat placed me in fear of my physical safety.

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 also object to the officers trespassing on private property.  Federal officers may violate state law only where federal law preempts that law.  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.

California Penal Code Section 602(o) defines as trespass the "[r]efusing or failing to leave land, real property, or structures belonging to or lawfully occupied by another and not open to the general public, upon being requested to leave by ... the owner's agent, or the person in lawful possession ... however, this subdivision shall not apply to persons on the premises who are engaging in activities protected by the California or United States Constitution, or to persons who are on the premises at the request of a resident or management and who are not loitering or otherwise suspected of violating or actually violating any law or ordinance."

Cal. P.C. § 602(o).

Whether as the person in possession of the common area, or the agent of the owner for the purpose of excluding unauthorized persons from the premises, I was authorized to exclude the officers from the building.

ICE officers undergo extensive training on immigration and constitutional law.  I have no doubt that the conduct of the above officers was knowing and willful.  This incident also appears to be just one example of a pattern of constitutional violations in recent times by ICE officers, suggesting the agency has adopted a policy of aggressive violations of constitutional rights in its enforcement efforts.

I request acknowledgment of this complaint, and disclosure of the identity of the male officer (or at a minimum confirmation that you have identified him and are able to investigate this complaint).  I appreciate your attention to this matter.  If I can provide any additional information, please do not hesitate to contact me in writing at the address above.

Sincerely,

Kevin M. Crabtree
Attorney at Law


About The Author

Bill O. Hing is Professor of Law and Director of Clinical Legal Education at the University of California, Davis, School of Law. He is also one of the editors of ImmigrationProf Blog


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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