Juan’s Story Part 2: Using Video as Evidence in Immigration Proceedings
This post is part of the WITNESS Media Lab’s series,“Eyes On ICE: Documenting Abuses Against Immigrant Communities.” The following is a case study for the consideration of immigration attorneys, advocates, and community members nationwide thinking through the creative use of video in defending individuals against deportation. The case at hand was filed in California and relies on Ninth Circuit case law; however, video may be used strategically as powerful evidence to corroborate the experience of a person who has been detained no matter your location. Read Part 1 of this case study which looks at how video was used in public advocacy campaigns around Juan’s case.
Case at a Glance:
- Immigration Court: Los Angeles
- Respondent Filing: Motion to Terminate Removal Proceedings, Dec 14, 2017
- Respondent Arguments:
- Violation of Immigration regulations, statutes & 4th Amendment of U.S. Constitution
- Lack of Probable Cause & Reasonable Suspicion
- Lack of Warrant or Flight Risk determination
- Non-identification as ICE agents
- Surveillance Video
- Sworn Declaration of Respondent
- Eyewitness Declaration
- Violation of Immigration regulations, statutes & 4th Amendment of U.S. Constitution
- Final Result:
- DHS withdrew NTA based on its improvident issuance in a Motion to Dismiss without Prejudice;
- IJ Stancill approved NTA withdrawal without a hearing & ordered a dismissal of the case.
- Learnings & Takeaways
One day at a South Los Angeles mechanic shop in September 2017, Juan Hernandez Cuevas unexpectedly found himself approached by six people who burst into his workplace, some bearing semi-automatic weapons.
Within minutes, everyone was asked to freeze and put their hands up. Instead of arresting only the shop owner for whom they had a warrant, the agents also arrested several mechanics. With no warrant, no probable cause, and no information about him, the officers placed handcuffs on and proceeded to arrest Juan solely on the basis of his appearance and his presence at work that day.
Wearing vests marked “POLICE,” and never identifying themselves, Juan was not aware these agents were in fact with Immigration and Customs Enforcement (ICE). It was not until the agents took Juan to an immigration processing center that he was even informed that ICE had arrested him. He remained at a detention center for nearly five weeks, while his wife and daughter went without his financial support.
He was released only after a judge granted a bond of $5,000 which his family and advocates at The National Day Laborer Organizing Network(NDLON) helped fundraise for. He was issued a Notice to Appear (NTA) for his removal (deportation) proceedings, and the American Civil Liberties Union (ACLU) of Southern California and their co-counsel successfully represented him in a motion to terminate. The motion argued that his arrest “violated governing regulations, statutes and the Fourth Amendment to the U.S. Constitution” that protects against unreasonable searches and seizures. To bolster his arguments in support of this motion, Juan was able to leverage as evidence surveillance video captured the day of the raid (see video).
A Notice to Appear is a document issued by various Department of Homeland Security agencies that instructs an individual to appear before an immigration judge. It is the first step in initiating a removal proceeding against them. The document also contains the factual and legal grounds for initiating the proceedings.
U.S. Immigration and Customs Enforcement (ICE), U.S. Customs and Border Protection (CBP) and U.S. Citizenship and Immigration Services (USCIS) agency officials can issue NTAs.
Motion to Terminate
In Juan’s case, the mechanic shop’s security camera was filming on that September 2017 day and captured the entire raid. To build their case, Juan’s attorneys used excerpts of the surveillance footage as exhibits. This footage along with sworn declarations from Juan and an eyewitness were used to corroborate Juan’s account of how the raid unfolded.
In their motion to terminate filed in immigration court in Los Angeles, his attorneys argued that removal proceedings should be terminated because ICE’s arrest and detention of Juan was unlawful as it violated governing regulations, statutes and the U.S. Constitution’s Fourth Amendment against unreasonable searches and seizures. (See Juan’s motion to terminate).
A motion to terminate asks an immigration court to terminate or conclude a case on the grounds that relief is granted or the government has violated certain regulations, policies or procedures.
According to Eva Bitran, one of Juan’s lawyers, “agents detained Juan based on racial profiling. Though the video is without sound, it’s apparent there was no time for any other determination.”
His lawyers argued that because the removal proceedings against Juan resulted from ICE’s violation of governing statutes, see 8 C.F.R. 287.8(b)–(c), the court should grant his motion to terminate.
The legal team in L.A. laid out the following 9th Circuit standard for termination in their motion. (See changes made to the standard in 2018, p.5  )
Critically, Juan’s lawyers argued that a violation of just one of the below regulatory provisions would be adequate grounds for termination because the whole regulatory scheme has been held to incorporate the Fourth Amendment. (See Juan’s motion to terminate, p.13).
What Violations did the Surveillance Video Show?
What happens during a civilian’s encounter with ICE agents can be a story of he said-she said. A credible piece of corroborating evidence can crucially impact the direction of a case.
His attorneys argued among other points that the video showed:
- No Probable Cause or Reasonable Suspicion: The video showed ICE officers approaching, searching, and handcuffing Juan immediately upon entering the garage without ever asking him any questions, not even his name or his immigration status. ICE arrested and detained Juan with no reason to believe he was a noncitizen subject to removal. See 8 C.F.R. § 287.8(b)(1), (2) and 287.8(c)(2)(i).
- No Warrant and No Flight Risk Determination: ICE arrested Juan without obtaining a warrant even though they had no reason to believe that he was likely to escape the garage. Juan had been attending work regularly at the garage for years and he was the sole provider for his U.S. citizen wife and young daughter, facts which do not indicate an intention to flee. The conduct of the officers in the video and the coordinated manner in which they entered the garage strongly suggested that the raid was planned during a week of ICE enforcement actions in various cities across the country. Accordingly, it was within ICE’s responsibility to secure a warrant. See 8 C.F.R. §§ 287.8(c)(2)(ii).
- ICE officers failed to identify themselves as Immigration agents at the time of arrest: the video shows that the ICE officials conducted the raid at the mechanic shop disguised as police officers. According to the regulation, they are supposed to identify themselves “as soon as it is practical and safe to do so.” See: 8 C.F.R. 287.8(c)(2)(iii)(A) and they did not identify themselves until Juan was in handcuffs, transferred into an SUV, and transported to an ICE processing facility.
After the filing of Juan’s motion to terminate, Immigration officials agreed to voluntarily drop the deportation proceedings against him; and the Immigration Judge in L.A. approved that action before any hearing was necessary.
As there was no hearing in this case and no reasoned judicial opinion, it is unclear which specific facts shown in the surveillance video led The Department of Homeland Security(DHS) to withdraw the charge against Juan. If it would have been Juan’s words alone supporting his case, however, DHS lawyers may never have terminated the removal proceedings against him, according to his attorney.
What is clear in this case is that video backed up Juan’s own version of the facts contained in his official declaration, leading to the dropping of the deportation proceedings. While client declarations should be enough in the courtroom, often they are not. Video can corroborate the accounts of clients and community members about how an apprehension or a raid unfolded.
Obtaining and Preparing the Video Files for an Immigration Proceeding
Nearly three weeks after the workplace raid, a community member under the direction of Juan’s attorneys was directed to the mechanic shop to retrieve the surveillance video. The shop’s surveillance system automatically deleted video every few days, but the shopkeeper’s son had copied to his laptop video excerpts showing the relevant events of that afternoon, including some footage before and after the raid.
Essential to Juan’s immigration case, the community member who retrieved the footage, signed a declaration under oath stating that he copied the footage from the shopkeeper’s son’s laptop onto a USB drive; and that he then copied the same files onto his own computer.
The community member also attested to the fact that he only changed the format of the footage from .dav format (which the surveillance equipment creates) to .mp4 format to make the video easier to play before sharing the files with Juan’s legal team. He stated in a written declaration, “aside from this conversion, I did nothing to the files. I have not edited, modified, altered, or manipulated the footage in any way.”
Chain of Custody and File Conversions of Video in Juan’s case:
Chain of Custody refers to the chronological succession of ownership or custody of the evidence. Each possession should be carefully documented as the footage makes its way from the street or workplace or home where it was filmed to lawyers, and then to the courtroom. A proven chain of custody helps to establish that there was no opportunity for corruption or manipulation from unknown sources.
If the footage turns out to be useful for your case, having a thorough record of who has had possession of the evidence can affect the weight that evidence is given in your case. Read more about Chain of Custody in our Video as Evidence Field Guide: Basic Practices.
In their Motion to Submit Video Evidence which they concurrently filed with their motion to terminate, the attorneys relied on language from a prior case to establish the rule for admission of evidence: “the sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.”
The legal team argued, “the video evidence is relevant because it captures the Immigration and Customs Enforcement raid on Juan’s workplace that resulted in his arrest and placement in removal proceedings[…] these videos, which show how ICE conducted the raid, including ICE’s interactions with and arrest of Juan, corroborate key portions of Juan’s account and are probative evidence of the raid and ICE’s arrest of Juan.” (See Motion to Submit Video Evidence).
The legal team submitted video in .mp4 format on a CD and as links to a URL cited to in their motion to terminate and motion to submit evidence. They used timestamps from the video throughout their motion to terminate as exhibits showing key parts of the incident (see Full Motion to Terminate).
Sample Timestamps as Exhibits
The following is an excerpt of the motion to terminate removal proceedings against Juan. As noted in the motion, the pinpoint citations for Exhibits 3 and 4 are timestamps that indicate the minutes and seconds elapsed on the video files submitted as evidence:
After the filing of Juan’s motion to terminate, Immigration officials agreed to voluntarily drop the deportation proceedings against him; and the Immigration Judge in L.A. approved that action before any hearing was necessary. Video was not only used as evidence in Juan’s case, it also helped bolster advocacy efforts. For instance, by editing the surveillance footage to clearly show the abuses and adding footage of Juan and his family, the ACLU was able to tell a more complete and human story that advocated for him outside of the courtroom as well.
For more information on how Juan’s advocates used video to garner community pressure and fight for his rights, see Part One of Juan’s Case Study.
Surveillance video coupled with an eyewitness’s declaration corroborated Juan’s version of the facts that day. Ultimately, DHS withdrew its charges and moved to dismiss the proceedings without prejudice against Juan on the grounds that the NTA was improvidently issued, thereby acknowledging that Juan should never have been detained and placed into removal proceedings to begin with, and the proceedings to remove him should be terminated.
While there is no reasoned judicial opinion in this case, once DHS withdrew the charges, the judge dismissed the case.
We may never know if Juan’s case would have been successful without the video footage available; however, his attorney suggests that it is very unlikely that DHS would have otherwise voluntarily dismissed the charges against him.
“You want to be able to marshal as much as you can in support of your client – and in this case in particular, I think surveillance video was critical to getting the result that we did.” – Eva Bitran, lawyer for Juan.
A short note on important challenges of pursuing motions to terminate as a strategy: an individual with strong eligibility for relief (such as a good candidate for cancellation of removal or asylum) may want to consider whether pursuing a motion to terminate is in their best interest, as well as the possibility of an NTA being re-issued. This must be discussed between client and attorney. For a more thorough review of various challenges and strategies relating to NTAs, review the latest practice advisories.
TAKE HOME POINTS
These takeaway points are intended for various actors, generally attorneys and advocates, in the process of obtaining video footage and converting it into supporting evidence in a proceeding.
I.OBTAINING & MAINTAINING SURVEILLANCE/EYEWITNESS FOOTAGE
- Save surveillance video before it is deleted: If you did not film the raid or apprehension, get to the site of the incident straight away and verify if any surveillance video was captured either on site or on the cameras from stores nearby. Surveillance video is often automatically deleted within a couple days (or less) of its recording, so time is of the essence. Check to see if there are any street or traffic cameras that you could potentially get access to by FOIA or subpoena.If you are relying on a community member to retrieve footage, make sure they have knowledge around how to preserve the video footage and they keep thorough records of the step-by-step of how they obtained it.
- Jot down chain of custody details immediately: take thorough notes about who had physical possession of the video footage once it left the surveillance system or the eyewitness’ video device. This can help impact the weight of the evidence in court.
- Metadata and security concerns: metadata or information about your video can be useful, but is also an important security issue to consider when it comes to the identity of the person filming. Editing embedded video metadata is not recommended unless you have specific reasons, like security concerns, as this may strip the authenticity of a video. What is metadata?
- Keep your video footage in a raw unedited format and do not alter it in any way: Changing file formats, editing footage, not saving an original copy, and not making a note of this in the chain of custody could reduce the chances of that video being used in a legal proceeding or affect the weight that the evidence is given. If it is necessary to convert the file format, save an unaltered version of the video on a separate hard drive and consult with an attorney first.
- Be strategic about your sharing: if possible, do not release or upload the video until first consulting with an attorney or legal professional. It may be more beneficial to the legal strategy to hold on to the video until the time is right to release. See our checklist around sharing videos of immigration enforcement.
II. PREPARING VIDEO FOR A PROCEEDING
- Sworn Witness Testimony: in some cases, surveillance or eyewitness footage alone may not be enough to convince an Immigration judge that there was unlawful arrest made; and having other types of evidence available such as sworn witness testimony is key. Keep in mind as many different potential sources of corroborating evidence as possible (photo, audio, video, eyewitness accounts). Don’t forget to investigate if eyewitnesses were present that may have seen, filmed or photographed the event. Individuals working in nearby stores may have been present that day. Working with local advocacy organizations can be helpful in determining this.
- Understand the limitations of your video: Remember that surveillance video doesn’t include audio and cameras remain at a fixed point – meaning there could be moments when people go out of frame. Both of these issues leave the footage more vulnerable to interpretation from adversaries, and create space for misinformation and distrust. That’s why verification and ethics are so important when filming or sharing a video (learn more about verifying video here). Work with a trusted lawyer, journalist or advocacy organization in order to understand the limitations of video, and create the most impact.
- Submit a hard copy of the video evidence on a CD and provide a URL to the footage in your Motion to Submit Evidence –file with the Immigration Court and serve DHS. Be prepared to provide these videos in another format at the Court’s request.
- Advocacy in parallel to a legal case: Video alone did not result in the dismissal of Juan’s deportation proceedings; with creative legal and advocacy efforts from his community, he was able to reunite with his family. See Part 1 of Juan’s Case Study to learn more about the advocacy strategies used to fight his deportation.
- Unedited security camera footage in Juan Hernandez’s case:
- Filming Immigration Enforcement Tip Sheet
- More resources for using video to advocate for immigration rights:
 Since Mr. Hernandez’s legal team filed its motion in 2017, the standard for termination in the 9th Circuit has changed. See changes made in 2018 on p.5: Sanchez v. Sessions, 904 F.3d 643, 655 (9th Cir. 2018)
“[A] petitioner is entitled to termination of their proceedings without prejudice as long as the following requirements are satisfied: (1) the agency violated a regulation; (2) the regulation was promulgated for the benefit of petitioners; and (3) the violation was egregious, meaning that it involved conscience-shocking conduct, deprived the petitioner of fundamental rights, or prejudiced the petitioner.” Sanchez v. Sessions, 904 F.3d 643, 655 (9th Cir. 2018)
As Sanchez v. Sessions was filed in the 9th Circuit, attorneys practicing in other circuits should verify the most current practice advisories for the latest changes to the standards in their own circuits.
We would like thank Eva Bitran of the ACLU as well as Yasmine Chahkar Farhang, for their interviews and reviews of our research. Deep gratitude for your input and commitment to this work!
The information contained here is for educational purposes; it does not and is not intended to constitute legal advice.
This post was published 6/27/19