Federal judges in West Virginia have questioned whether law enforcement had probable cause for the initial stops in immigration cases that led to jail and the courtroom.
In the case of two non-citizens stopped along Interstate 77 in Pax on Jan. 18, U.S. District Judge Joseph Goodwin wrote in a order that “notably, the record contains no information regarding the justification for the initial traffic stop conducted by the West Virginia State Police.
“At the show cause hearing, Petitioners’ counsel proffered that the Petitioners believed they had been stopped solely because of their appearance. The Government offered no evidence or statement to the contrary.”
In another case of a non-citizen arrested after a commercial traffic stop of the semi-truck he was driving on I-77 near the Ghent Toll Plaza on Jan. 16, U.S. District Judge Irene Berger wrote that she had asked about a warrant and U.S. attorneys first declined to answer.
Then, the judge wrote, the U.S. attorneys took the position that they had no knowledge of the man’s history, arrest, or status beyond the documents supplied with their response, which include no reference to a warrant.
“Appearing at a show cause hearing regarding the legality of a petitioner’s detention with no information regarding the basis on which he was taken into custody does not meet the standards the Court expects ” Berger wrote in a footnote of an order last week.
Probable cause is a Fourth Amendment legal standard requiring police to possess reasonably trustworthy facts and circumstances — more than just a hunch but less than absolute certainty — that a crime has been committed or that evidence exists in a specific location. It is essential for obtaining warrants, conducting searches and making arrests.
Being in the United States without authorization is generally a civil violation, not a crime, and violation of immigration law is handled by civil immigration courts, not criminal courts.
Immigration and Customs Enforcement agents generally need probable cause to arrest people for civil immigration violations, meaning they must have a reasonable belief that the person is in the U.S. unlawfully.
While ICE agents or cooperating law enforcement officers do not need a judicial warrant signed by a judge for arrests, they often use administrative warrants based on the probable cause standard.
“Everyone in the United States is potentially at risk if officers are free to detain and incarcerate people without ever having to justify the detention, and without an expeditious opportunity for the individual detained to appear before a neutral arbiter,” Berger wrote in her order.
Due process questions
The cases that have been going before federal judges in West Virginia have focused on whether people are being properly held in regional jails following immigration stops.
In most of the cases, lawyers for the people being detained have pursued the cases, contending that their clients have already been in consistent cooperation with the U.S. immigration system and that should continue.
Most of the cases follow a similar fact pattern: The citizens of other countries have come to the United States without valid entry and they were picked up by U.S. authorities and taken to processing centers, then released pending further immigration hearings. Typically, they have declared asylum because of turmoil in their own countries.
The immigration hearing process can take years to sort out, but most of the cases have indicated the people arrested in West Virginia have cooperated consistently to attend their hearings while laying down roots in the United States.
The arrests that have occurred in West Virginia have been outside that system, with most of those arrested being held in the Southern or South Central Regional Jails. The federal hearings have focused on whether the arrests and jailings have been lawful. The cases are based on due process claims.
So far, two dozen people in have been ordered to be released from jails over the past three weeks by judges in the Southern District of West Virginia, according to reporting by The Charleston Gazette-Mail. Through the end of last week, the newspaper reported, 31 immigrants had pursued claims that they were being held illegally.
The cases arose following a West Virginia immigration sweep, “Operation Country Roads,” that resulted in 650 arrests.
An overriding question in the cases before West Virginia judges has been why people are being held in jail if they have not been accused of crimes and if they are otherwise complying with the immigration system. A secondary and recurring question is whether reasonable cause existed to arrest them in the first place.
A case before U.S. District Judge Thomas Johnston, for instance, focused on the due process rights of Danny Briceno-Solano, a Venezuelan citizen under Temporary Protected Status.
Briceno-Solano was pulled over along Interstate 77 on Jan. 11 because his vehicle had “unclear, paper license plates.”
“Although he had no criminal history, no outstanding warrants, and no history of gang affiliation, ICE arrested Petitioner because he had ‘no documentation’ allowing him to reside in the United States and was allegedly here in violation of the Immigration and Nationality Act,” Johnston wrote.
The judge then outlined the Briceno-Solano’s years-long history with the U.S. immigration system, noting that he applied for and received Temporary Protected Status, a work permit and a North Carolina driver’s license.
“If the government may simply seize someone without due process, there is no check on its ability to seize anyone,” Johnston wrote.
‘Without articulable and reasonable suspicion’
A case before Judge Goodwin involved a husband and wife, Yuri Jhoana Gutierrez Aroca and Arley Cabrera Valenzuela of Colombia. This is the case where the judge blasted federal officials for not being able to say why the couple was pulled over in the first place.
They live in Columbus, Ohio, with their three children. She has a part-time job with a food truck, and he works for a private contractor providing services for correctional facilities.
They acknowledge coming to the United States without proper documentation. They were picked up by federal authorities a few years ago, taken to processing centers, released into the United States on their own recognizance, got work authorization and filed applications for asylum.
After being pulled over near Pax, they were arrested and transported to South Central Regional Jail.
Judge Goodwin underscored a distinction that the two were charged with civil violations of United States immigration laws.
“Yet these two working parents appear in unmistakable prison garb. They wear orange jumpsuits, are shackled, and are restrained in heavy chains. They have been kept away from their children, forced to languish in detention hundreds of miles away from where they live and work. They have been confined for days alongside persons accused of or convicted of crimes,” the judge wrote.
“This is not what civil enforcement looks like in a humane system of government under law.”
Goodwin wrote in the order that he is not blind to the practical demands of immigration enforcement, including cooperation between state and federal authorities. But, the judge wrote, the Constitution assumes restraint at the basis of lawful authority.
“Stops conducted on the highway without articulable and reasonable suspicion followed by civil detention carried out in a manner indistinguishable from criminal punishment collapses the very distinction the law insists upon,” Goodwin wrote.
‘Risk of erroneous deprivation of liberty’
A case before Judge Berger involved Rasul Umarov, a citizen of Russia, who entered the United States at a port of entry in 2022. He filed a timely asylum application in 2023, based on persecution in the Russian Federation, according to the court record.
Umarov gained legal employment authorization and maintains gainful employment. He is married and has a 10-month-old daughter, who is a United States citizen. He has no criminal record and is accused of no criminal conduct, the judge wrote.
“In short,” Berger wrote, “he has met all obligations imposed by immigration authorities, including appearing for hearings, and has complied with the law during his presence in the United States.”
He was arrested on Jan. 16 by officers conducting a commercial traffic stop on I-77 near the Ghent Toll Plaza. Umarov was arrested and taken to South Central Regional Jail.
This is the case where the judge outlined that U.S. attorneys took the position that they had no knowledge of the man’s history, arrest, or status beyond boilerplate documents supplied by ICE.
“The United States refused to provide any factual information regarding the ‘procedures’ used to detain Mr. Umarov beyond the form produced by ICE following his arrest,” Berger wrote.
“The risk of an erroneous deprivation of liberty when agents are given the power to indefinitely detain people with only the information garnered during a traffic stop on the side of the interstate is enormous, and enormously troubling.”