US. Portillo-Aguirre, Fifth Circuit
Reynaldo Portillo-Aguirre was on board a passenger bus when it was stopped at an immigration checkpoint in south Texas. Three agents were involved, one checking outside luggage compartments, one walking with a drug detecting dog through the passenger cabin, and the third checking people’s immigration documents. The agent later testified that he believed Portillo appeared nervous from the moment the bus was stopped, but because he was a permanent resident, he did not further investigate until after completing the immigration inspection. At that point, the agent noticed a small bag stowed beneath Portillo’s seat and began questioning him. The agent asked to look in the bag, and Portillo opened it. According to the agent, it was clear there were things in the bag Portillo was trying to hide, and he asked permission to search the bag himself. Portillo agreed, and the agent found a wrapped package similar to those often used to transport drugs. Portillo was arrested and eventually convicted of possession with intent to distribute cocaine.
Portillo appealed his conviction, arguing that the district court improperly failed to exclude evidence gained during the stop, which, Portillo argued, was an unconstitutional search and seizure.
In 1976, the Supreme Court held that immigration checkpoints where people’s immigration status is check without there being any specific reason to believe the person is undocumented are constitutional. However, a stop involving anything more than a couple of questions needs to be justified by probable cause. In this case, the agent had completed the immigration check before noticing Portillo’s bag. The question for the court is whether the agent’s actions after completing the immigration check extended beyond those allowed under Supreme Court precedent.
The court found that in this case, the stop was unconstitutional. The purpose of the checkpoint was to determine immigration status and nothing more. Searching for illegal narcotics was not part of the purpose of the checkpoint. Waiting until after completing the immigration check to begin a narcotics check, the court found, was impermissible in the absences of specific reasons to do so, and Portillo’s general nervousness was not a specific reason. Because the evidence was produced through an illegal search and seizure, it cannot be used as evidence and must be excluded from a criminal trial. Therefore, the court remanded the case with instructions to enter a judgment of acquittal.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/5th/0150476cr0.pdf.
Bosede v. Ashcroft, Seventh Circuit
Stephen Bosede, a citizen of Nigeria and permanent resident of the US, was thrice convicted on felony drug charges. After the third conviction, the INS placed him in removal proceedings. An immigration judge found him removable and ineligible for any form of relief, and was affirmed by the Board of Immigration Appeals. Bosede then appealed to the Seventh Circuit.
Both Bosede and his wife, who is a US citizen, were diagnosed as HIV positive in 1997. Before the immigration judge, Bosede sought a number of forms of relief from deportation. First, he claimed he was eligible for asylum. Second, he argued that he was eligible for withholding of removal. Finally, he claimed to be eligible for relief under the United Nations Convention Against Torture. Each claim rested on two primary facts: Bosede is a Christian and is HIV positive. The immigration judge found that Bosede was statutorily ineligible for asylum and withholding because of an aggravated felony conviction, and that he was ineligible for CAT relief because it was not established that it was more likely than not that he would be tortured in Nigeria.
On appeal Bosede dropped the asylum claim, focusing on the withholding and CAT claims. He presented evidence to the Seventh Circuit showing that one of the convictions, the one the immigration judge found to be a particularly serious crime, which makes a person ineligible for withholding, was not, in fact, within the definition of a particularly serious crime.
The Seventh Circuit found that there were serious problems with the way the immigration judge and Board of Immigration Appeals had handled Bosede’s case. However, it found that it did not have jurisdiction over the case because Bosede had not exhausted his administrative remedies. Therefore, it dismissed the case.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/7th/013188p.pdf.
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