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INS Can’t Base Targets on Names, Court Says

October 22, 1994

SAN FRANCISCO (AP) _ Immigration agents can’t investigate people merely because their names sound foreign, a federal appeals court ruled Friday.

Finding a serious constitutional violation in the seizure of a Nigerian in an apartment building and the search of his room, the 9th U.S. Circuit Court of Appeals took the unusual step of overturning his deportation order.

The man, Jacob Orhorhaghe, was called to an immigration investigator’s attention by a bank employee because his name sounded Nigerian, the court said.

″One cannot rationally or reliably predict whether an individual is an illegal alien based on the sound of his name,″ said Judge Stephen Reinhardt in the 3-0 ruling.

″... Many if not all Americans have ‘foreign-sounding’ names, depending on which countries of origin we consider foreign.″

That should send a message to those responsible for enforcing Proposition 187, said Orhorhaghe’s lawyer, James Mayock. The initiative on the Nov. 8 ballot would require state and local officials, health personnel and educators to report to immigration authorities anyone they reasonably suspected of being an illegal immigrant.

″The proponents think you know an illegal alien when you see him,″ Mayock said. He said the ruling ″is a protection for people who might have foreign- sounding names.″

He said Orhorhaghe is married to a U.S. citizen and is seeking legal resident status.

Orhorhaghe entered the United States legally in October 1982 on a tourist visa that expired 18 days later, the court said. He was living in Oakland in 1986 when his name was referred to an immigration officer by Karen Muth, a Bank of America investigator, who had encountered the name during a credit card fraud investigation and thought it sounded Nigerian.

Michael Smirnoff, an investigator with the Immigration and Naturalization Service, decided to investigate Orhorhaghe after failing to find his name in a computerized list of those who had entered the country legally since January 1983, the court said.

Smirnoff, Muth, another INS agent and a policeman went to Orhorhaghe’s apartment building. Smirnoff, who was carrying a concealed gun, told Orhorhage they didn’t need a warrant, the court said. They opened his briefcase and found documents that referred to his expired visa, the court said.

An INS immigration judge ruled the search illegal but was overruled by the Board of Immigration Appeals, which ordered Orhorhaghe deported. The appeals court overturned that order, saying the case was a rare example of an ″egregious″ constitutional violation that required barring evidence in an immigration case.

Reinhardt said Orhorhaghe was targeted by the INS solely because of his name. His absence from a list of legal entrants since January 1983 provided no additional evidence that he was an illegal immigrant, Reinhardt said.

Citing a 1975 Supreme Court ruling that barred INS agents from detaining people because they looked Hispanic, Reinhardt said an investigation prompted by a foreign-sounding name is equally improper and is ultimately based on race or national origin.

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