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June 24, 1977

Sara Flores MARQUEZ, Isabel Maria Flores, and Miguel Eduardo Marquez, on behalf of themselves and all other persons similarly situated, Plaintiffs,
Maurice F. KILEY, Director, New York District, Immigration and Naturalization Service, John Weiss and William Carroll, Investigators, Immigration and Naturalization Service, Leonel J. Castillo, Commissioner, Immigration and Naturalization Service, Griffin B. Bell, Attorney General of the United States, Defendants

The opinion of the court was delivered by: LASKER


 LASKER, District Judge.

 Plaintiffs, Sara Flores Marquez (Mrs. Marquez), her sister, Maria Flores (Ms. Flores) and her husband, Miquel Marquez (Mr. Marquez), are citizens of Ecuador who currently reside in the United States. They sue the Attorney General, the Commissioner of the Immigration and Naturalization Service (INS), the Director of the New York District of the INS and two INS investigators, alleging that their interrogation and Mr. Marquez's subsequent arrest by the two INS investigators violated § 287(a) of the Immigration and Nationality Act, 8 U.S.C. § 1357(a) *fn1" and the Fourth Amendment of the United States Constitution. They seek damages for themselves and on behalf of a class of similarly situated aliens, they seek declaratory and injunctive relief.

 The action was tried to the court without a jury. This memorandum constitutes our findings of fact and conclusions of law.

 I. Factual Background

 Mr. Marquez is a native and citizen of Ecuador. He arrived in the United States on October 27, 1968 as a non-immigrant visitor under a visa permitting him to remain for thirty days. His stay was extended for an additional period to May 30, 1969. Since that time he has remained in the United States without lawful authority. Shortly after his arrival here, he obtained employment with the Langer Manufacturing Company on 60th Street in Brooklyn, New York, and worked there continuously to the time of the events which gave rise to this suit. He has never applied for or received permission from the INS to accept employment.

 Mr. Marquez resides with his wife, plaintiff Sara Flores Marquez, at 553 41st Street, Brooklyn, New York. Mrs. Marquez is also a citizen of Ecuador. However, she was admitted for permanent residence in the United States on March 23, 1969. At the time of the incident which forms the basis of her complaint, Mrs. Marquez was working as a machine operator at the Duke Lamp Shade Company on 35th Street and 3rd Avenue in Brooklyn.

 Maria Flores, Mrs. Marquez's sister, is also a citizen of Ecuador and a permanent resident alien of the United States, a status she obtained on December 1, 1972. She, too, resides at 553 East 41st Street and works at the same establishment as her sister.

 At all relevant times the defendants John Weiss and William Carroll were INS investigators assigned to the Area Control Investigations Unit, whose task was to locate and apprehend illegal aliens. Their practice was to enter areas of the city which they believed to contain a large alien population, accost individuals whom they believed to be aliens and inquire into their citizenship or alien status. If as a result of their inquiries they had reason to believe that a particular individual was unlawfully in the country, they would either make an arrest, or issue a pass requiring the person to appear at INS headquarters at a later date, a process termed "passing in."

 Weiss and Carroll had substantial discretion to work in any area they chose within their assigned territory, which encompassed all of Brooklyn, Queens and Long Island. In late December, 1972 or early January, 1973, they examined a number of "complaints" ("G 123 forms") in their files in the course of planning their activities in the near future. These forms are records of telephone calls received by the INS reporting the presence of persons suspected of being aliens. A number of these complaints reported the presence of Latin and South American aliens in the Bay Ridge section of Brooklyn, and the investigators decided to direct their efforts to that area.

 Weiss and Carroll determined to go to Bay Ridge not only because of these reports, but also because on the basis of their personal experience they believed it to be a neighborhood in which large numbers of aliens could be found. Carroll's belief was based in part on personal familiarity with the area; he was born in Brooklyn, had friends from Bay Ridge and went to school nearby. More closely related to the subject, Carroll's impression of the character of Bay Ridge was based on his experience as an INS Investigator. In the year he had been with the INS Carroll had been to Bay Ridge on seven or eight occasions to investigate complaints regarding illegal aliens and each visit resulted in arrests. In all, Carroll had been personally involved with twenty arrests of aliens who lived, worked or were found in Bay Ridge. Moreover, Carroll had been informed by other investigators that in one morning in the Fall of 1972 fifteen illegal aliens had been arrested at a single location in Bay Ridge.

 On Sunday, January 7, 1973, Weiss and Carroll went to Bay Ridge. On this occasion they arrested five illegal aliens from Mexico at an apartment house on 50th Street. Because they had information that these five were living with or near other illegal aliens, they decided to return the next day.

 Early in the morning on January 8th, Weiss and Carroll again drove to Bay Ridge. Near 4th Avenue and 39th Street they arrested two individuals from Ecuador. With these two in the back seat of their car they proceeded down 40th Street toward 5th Avenue. Here, at about 7:30 A.M., Weiss saw the three plaintiffs, who were walking to work. He signaled Carroll, who was driving, to stop the car.

 Weiss testified that what brought his attention to the plaintiffs in the first instance was their physical appearance. Like the two Ecuadorians he had arrested moments before, plaintiffs' features seemed to Weiss to be of a type commonly associated with South American Indian peoples, that is smooth black hair and olive complexion. Moreover, Weiss noted that they were dressed in clothes which he believed typical of factory workers and that one of them *fn2" was carrying what appeared to be a lunch bag. Weiss recalled that Mr. Marquez appeared to be wearing a heavy, unfashionable looking coat and pointed, "possibly foreign" (Tr. 122) shoes.

 Carroll stopped the car about 30 feet ahead of the plaintiffs and Weiss got out and observed them for a few more moments before approaching them. He noted that their conversation was in Spanish. At this point, Weiss stepped up to the plaintiffs, identified himself as an INS official and inquired in Spanish as to their nationalities. The three responded that they were from Ecuador.

 Carroll, who had by this time joined Weiss, inquired further of Mr. Marquez, while Weiss spoke to the two women. On inquiry, Mr. Marquez readily related that he had entered the country on a tourist visa and that he was working. Carroll then asked him to get into the car.

 Meanwhile, the two women explained to Weiss that they were permanent residents and produced their alien registration, or "green" cards. Mrs. Marquez's card appeared to be in order and Weiss returned it to her. However, the card of Ms. Flores appeared to Weiss to be irregular. *fn3" Accordingly, he asked her, too, to get into the car for further questioning.

 Mrs. Marquez, who had been told she was free to leave, followed the investigators and her companions to the car to explain that she was married to Mr. Marquez and that they should therefore not arrest him. *fn4" However, the name on her green card was Flores, not Marquez, and she had no independent proof of their marriage status. Because it was bitter cold, the investigators asked her to sit in the front seat while she continued to seek her husband's release. Mr. Marquez and Ms. Flores were seated in the rear, along with the two men who had been previously arrested. Weiss remained outside the car speaking through the open window. The investigators explained that if Mrs. Marquez brought a proof of marriage to headquarters they would release Mr. Marquez, but that they would not do so only on the Marquez' word that they were married. After about five minutes she left the car.

 During this conversation, the only paper or document which Mr. Marquez could produce was a lawyer's business card. However, although it was the fact, he did not volunteer that this attorney was currently representing him before the INS in his efforts to obtain permanent resident status. *fn5" Weiss and Carroll did not inquire into the significance of the card. They asked only whether Marquez had any documents indicating that the INS was aware of his presence here and received a negative response.

 When Mrs. Marquez left the automobile, Weiss and Carroll attempted to make radio contact with headquarters to check on Ms. Flores' status. Being unable to make contact, they decided to move the car and shortly succeeded in getting through to headquarters. While they were waiting for an answer to their inquiry, they cruised around the neighborhood, and when after six or seven minutes they learned that Ms. Flores was indeed a lawful permanent alien, they let her out of the car several blocks from where she was picked up. See n. 8, infra.

 The investigators proceeded to drive to 50th Street, where they had arrested the five Mexican aliens the previous day, and then returned to headquarters. Upon arrival they were told that Mr. Marquez's attorney had contacted headquarters and that Marquez ...

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