 NEWS FROM THE COURTS
US v. Montero-Camargo, Ninth Circuit
In this case, the court ruled that a person's Hispanic appearance cannot be used to establish the reasonable suspicion necessary to stop and search their car.
About 50 miles north of the US-Mexico border there is a checkpoint near El Centro, California. The checkpoint had just recently reopened at the time of the events of this case. The only indication of the checkpoint was a sign on the highway announcing it. This sign was placed at the last stretch of the highway that provided room for people to turn around out of sight of the checkpoint. Agents saw two cars turn around at this spot and began to follow them. Both cars were stopped and searched, and a large quantity of marijuana was discovered in one.
The defendants argued that the evidence seized from the car should not be used against them because it was obtained in violation of the Fourth Amendment, which protects against unreasonable searches and seizures. Whether a search is constitutional depends on whether the officer conducting it had reasonable suspicion to believe the person being searched either has committed or is about to commit a crime.
In this case, numerous factors were cited to justify the search, including the Hispanic appearance of those in the cars. The court found that use of this factor was improper. In the area in which the stop occurred, about 75% of the population is Hispanic. Because this is the majority of the people, the use of Hispanic appearance is not proper in developing reasonable suspicion. Reasonable suspicion must be tailored to the individual circumstances, and when most people in an area share a characteristic, such as Hispanic appearance, too many people share the characteristic for it to be used.
The court also ruled that the use of Hispanic appearance is inappropriate even in areas where people of Hispanic descent are not a large portion of the population. Citing many cases that have limited affirmative action programs, the court found that the use of race or ethnic appearance suffered from the same constitutional infirmity those programs were found to. Affirmative action has been limited on the theory that such programs continue to stigmatize groups, and may, for some people, continue to support ideas of racial inferiority and hostility among races. Using this reasoning, the Ninth Circuit found that the fears that have led to the limitation of affirmative action are even more pronounced when using race as a reason to stop and search a person.
According to the court "stops based on race or ethnic appearance send the underlying message to all our citizens that those who are not white are judged by the color of their skin alone. Such stops also send a clear message that those who are not white enjoy a lesser degree of constitutional protection - that they are in effect assumed to be potential criminal first and individuals second."
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Zgombic v. Farquharson, District of Connecticut
In this case, the court ruled that aliens who committed criminal offenses before the 1996 immigration laws must be given the opportunity to seek a waiver of deportation, and the INS must provide bond hearing to lawful permanent residents who are eligible to seek such a waiver.
Zgombic, a native of the former Yugoslavia, has been a permanent resident of the US since 1972, when she was seven years old. She is married to a US citizen. In 1995, she went to China on a business trip. When she returned to the US, the INS discovered a warrant for her arrest, charging her with fraudulent bank transactions. She was paroled into the US, which means that while she was physically present in the US, she was legally considered to still be an alien seeking admission. A year later she was finally convicted and sentenced to 15 months in prison. After she was released, in early 1999, the INS issued a Notice to Appear, charging that she was an inadmissible alien.
The INS denied her request for a bond hearing, finding that the statute did not authorize hearing for people in her situation. It also denied her request for a waiver of deportation under section 212(c) of the Immigration and Nationality Act. Along with appealing these decisions to the Board of Immigration Appeals, she sought a writ of habeas corpus.
After concluding that it retained habeas corpus jurisdiction over her claims, the court went on to examine the heart of her claim - that the 1996 changes in immigration law should not be applied retroactively to her offense, which occurred in 1992, even though she was placed in proceedings after these laws became effective. In a case such as this, where the effect of a statute is on events that occurred before its enactment, a court must conduct a retroactivity analysis. There are three steps in this analysis: first, did Congress state the temporal reach of the statute, second, if there is no such congressional statement, does the statute change the effects of an action taken before the statute was enacted, and third, if the statute does operate retroactively, is there clear congressional intent that it be given retroactive effect. This analysis is to be conducted while keeping in mind the historical presumption disfavoring retroactivity.
The court found that Congress made no clear statement that the provision eliminating the chance to apply for a waiver should be applied retroactively. Therefore, it examined the effect of the statute. If applied retroactively, the law would prevent Zgombic from seeking a waiver. The court found that as a long-term permanent resident, Zgombic had a substantial legal interest in being able to seek a waiver. Thus, even though there was no guarantee that she would receive a waiver, her interest in being able to seek it is a sufficient basis for the court to analyze the possible retroactive effect of the statute.
The court found that the statute was clearly retroactive. It further found that it could not be applied to Zgombic. According to the court, the important event in such circumstances is not when the INS gets around to initiating proceedings, but when the criminal conduct leading to deportation actually occurred. As the court said "Zgombic's access to discretionary relief . . . cannot be dependent upon the random administrative workings of the INS."
The court also examined whether Zgombic's detention violated her due process rights. It found that the statute authorizing mandatory detention did not violate her substantive due process rights, but did improperly infringe on her procedural due process rights. Procedural due process analysis weights three factors - the interest of the individual that the government is depriving, the interest of the government, and whether different procedures would result in fewer wrongful deprivations. The court found that Zgombic's interest, remaining at liberty until the deportation order against her was final, was significant. The government's interest, ensuring that people remain available for deportation, was important. However, it also found that the procedures currently used created a substantial risk that people were being wrongfully deprived of their liberty. Therefore, the court ruled that as applied to Zgombic, the statute denying her a bond hearing was unconstitutional. The court ruled that Zgombic must be given a bond hearing, and an opportunity to seek a waiver of her deportation.
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