These summaries are not intended as legal advice. Please contact a licensed attorney to discuss the specifics of your case.
Viewing entries tagged
motion to suppress
The Ninth Circuit declined to find that a non-citizen’s inculpatory statements should be suppressed in removal proceedings because he was arrested pursuant to an administrative warrant and did not receive Miranda warnings.
The full text of Zuniga de la Cruz v. Garland can be found here:
The Board of Immigration Appeals has determined that “[t]he respondent’s resemblance to the person the officers were seeking to arrest, and his presence in the same location where this person resided, are reasonable, articulable, objective facts justifying a brief, investigatory stop of the respondent to determine if he was the subject for whom they were searching.” “After the officers asked for identification and the respondent’s son produced a foreign identification document and the respondent stated he had no identification, the facts supported the ICE officers’ continued suspicion and justified reasonably extending the length of the stop.”
The full text of Matter of Mariscal-Hernandez can be found here:
https://www.justice.gov/eoir/page/file/1556836/download
The Ninth Circuit has granted a petition for panel rehearing in B.R. v. Garland, which dealt with proper service of a Notice to Appear on a minor, as well as the proper remedy when DHS obtains juvenile records in violation of state law.
B.R. was deemed an unaccompanied minor and remained in custody until he was eventually released to his mother in March 2011. Upon his release, DHS failed to serve a copy of the NTA on B.R.’s mother. In fact, DHS has never served B.R.’s mother with his NTA. No substantive proceedings took place between 2011 and 2018 (in part, because B.R. was incarcerated for some of that time). In January 2018, B.R. (now represented by an attorney) moved to terminate proceedings on the ground that DHS failed to effectuate proper service in 2011 by failing to serve a copy of his NTA on B.R.’s custodian (his mother) when he was released to her custody, which he argued was required for minor aliens pursuant to Flores-Chavez v. Ashcroft, 362 F.3d 1150 (9th Cir. 2004). The IJ acknowledged that DHS’s 2011 NTA service was improper under our Flores-Chavez rule, but denied the motion after concluding that DHS was permitted to perfect service by re-serving the NTA on then-adult B.R. The IJ noted DHS had done so by reserving the NTA by mail on B.R.’s counsel as an attachment to the agency’s response to B.R.’s motion.
In March 2018, B.R. filed a motion to suppress evidence and to terminate proceedings, in which he argued that the three I-213s that DHS had assembled and submitted as evidence of B.R.’s alienage improperly relied on B.R.’s confidential juvenile records—an act B.R. argued was a violation of his Fourth and Fifth Amendment rights and an egregious regulatory violation—and that these forms should be suppressed. B.R. argued that without the I-213s, DHS, which at that point had submitted no other evidence of his alienage, failed to meet its burden of establishing that B.R. was born in Mexico. In response to the motion, DHS submitted two additional pieces of evidence of alienage: (1) B.R.’s Mexican birth certificate, and (2) a district court presentence investigation report which stated that B.R. was born in Mexico.
The IJ denied the motion to suppress evidence and to terminate proceedings. The IJ refrained from deciding whether DHS had acted unlawfully with respect to B.R.’s juvenile records in the preparation of the I213s but assumed for purposes of analysis that DHS had indeed obtained information for the I-213s unlawfully. Sidestepping the merits, the IJ held that DHS’s supplemental evidence (the Mexican birth certificate and the district court presentence report) was obtained based on B.R.’s identity alone, which, regardless of any alleged constitutional or regulatory violation, cannot be suppressed. Thus, the IJ found the supplementary evidence not suppressible and determined that DHS had proved B.R.’s Mexican alienage by clear, unequivocal, and convincing evidence, even without the I-213s.
“Reviewing the matter de novo, we hold that improper service of an NTA on a minor alien released from DHS custody can be cured if DHS later perfects service before substantive removal proceedings begin. Therefore, regardless whether DHS’s improper service in 2010 failed to vest the immigration court with jurisdiction initially, the immigration court had jurisdiction throughout all of B.R.’s substantive removal proceedings subsequent to DHS’s perfection of service on B.R. in 2018.” “Nothing in the statute or regulations requires termination of removal proceedings solely because the initial service was found to be defective.” “Flores-Chavez requires DHS to serve the NTA on the custodian of a minor alien after he is released. It does not create a bizarre rule where, if service on the custodian is not made the instant the minor is released, DHS is barred from pursuing removal.” “To cure defective service, DHS re-served the NTA on then-adult B.R., but B.R. here complains that DHS again did not serve notice on B.R.’s mother. We hold that DHS need not have served B.R.’s mother after he turned eighteen and that DHS properly perfected service by mailing the NTA to B.R.’s attorney.”
“In holding that DHS may cure defective service to avoid violating § 1229 and related regulations, we do not suggest that there is no remedy when improper service amounts to an egregious regulatory violation which works to prejudice an alien’s interests. Our test from Sanchez v. Sessions provides adequate remedy of such instances: “[A] petitioner is entitled to termination of their [sic] 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.” 904 F.3d 643, 655 (9th Cir. 2018). B.R. argues that, even if DHS is permitted to cure defective service, its initial failure to serve B.R.’s mother in accordance with Flores-Chavez’s interpretation of 8 C.F.R. § 236.3 and the seven-year gap between its initial failure and its perfection in 2018 were egregious regulatory violations because they prejudiced his interests, requiring termination of his removal proceedings. The agency, however, did not address B.R.’s egregious regulatory violation argument below.” “Because the agency did not address B.R.’s egregious regulatory violation argument, we grant B.R.’s petition and remand to the agency for it to consider that particular argument. We leave the determination of whether DHS did in fact commit an egregious regulatory violation, including whether DHS prejudiced B.R., for the agency to determine in the first instance on remand.”
“According to B.R.’s evidence, DHS could not have obtained the birth certificate without using at least some of the information available to DHS only in B.R.’s confidential juvenile court record, to wit his date of birth, the Mexican state in which he was born, his parents’ names, etc. That is specific evidence of taint, yet nothing in the record indicates that the agency seriously considered this evidence. Instead, it appears the agency arbitrarily ignored it and found the government’s evidence free from taint. That is error and an abuse of discretion.” “If ICE located the birth certificate by using information gleaned from B.R.’s juvenile records or his I-213s, it would not be free from the taint of that alleged suppressible violation. If ICE used only his name, or used information obtained in its interview with B.R., then DHS has the burden on remand to so demonstrate, and to so demonstrate with sufficient detail to allow the IJ to verify that the evidence does not constitute fruit of unlawful government conduct.”
“We note, however, that B.R. never satisfied his burden to submit specific evidence that DHS’s presentence investigation report was tainted.” “B.R.’s conviction is a matter of public record and information contained within that official file is per se independent of any suppressible violation committed pursuant to unrelated immigration proceedings. B.R. has not provided any evidence that DHS uncovered his federal conviction by using information obtained from B.R.’s unrelated California state juvenile criminal record. Even so, we have serious misgivings as to the propriety of the admission of the presentence investigation report that should be addressed on remand, including how DHS obtained the presentence investigation report when it was placed under seal by the federal district court. Given these misgivings and the fact that the agency relied on both the birth certificate and the presentence investigation report in determining that DHS’s evidence was sufficient to establish alienage, we refrain from concluding in the first instance that the presentence investigation report alone is sufficient to establish B.R.’s alienage.”
The full text of the amended decision in BR v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/02/23/19-70386.pdf
My blog post on the original panel decision can be found here:
The Ninth Circuit has determined that improper service of an NTA on a minor alien released from DHS custody can be cured if DHS later perfects service before substantive removal proceedings begin. The court also discussed when evidence of alienage may be tainted because it was found using information obtained in violation of a petitioner’s constitutional rights.
“Flores-Chavez requires DHS to serve the NTA on the custodian of a minor alien after he is released. It does not create a bizarre rule where, if service on the custodian is not made the instant the minor is released, DHS is barred from pursuing removal.” “To cure defective service, DHS re-served the NTA on then-adult B.R., but B.R. here complains that DHS again did not serve notice on B.R.’s mother. We hold that DHS need not have served B.R.’s mother after he turned eighteen and that DHS properly perfected service by mailing the NTA to B.R.’s attorney.”
“Applied to the limited instances in which we recognize the availability of the exclusionary rule in immigration proceedings, if an alien establishes a prima facie case of an egregious regulatory or Fourth Amendment violation warranting suppression, the alien is then charged with providing specific evidence that each piece of allegedly suppressible government evidence is tainted by that unlawful act. Upon that showing, the burden then shifts to the government to contest the alien’s specific evidence of taint or otherwise show the government’s allegedly tainted evidence is immune from suppression, including a demonstration that the evidence was obtained independently of or is sufficiently attenuated from the underlying unlawful act or evidence obtained therefrom.”
The full text of BR v. Garland can be found here:
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/07/12/19-70386.pdf
The Second Circuit has held that a petitioner’s declaration, on its own, need not make out a prima facie case for suppression in order for the petitioner to be entitled to an evidentiary hearing. Rather, if the declaration could support a basis for exclusion, then it must be supported by testimony. After testimony, if the petitioner has made out a prima facie case, then the burden of proof shifts to the government to show that the evidence should be admitted. “It is only once the affidavit has been considered and a hearing held that the applicant must have made a prima facie showing for the burden to shift to the government and suppression to be determined.”
“Millan-Hernandez was no more than a passenger in the vehicle that was stopped for a possible traffic violation. As the Police Report reflects, even the driver was not Millan-Hernandez was no more than a passenger in the vehicle that was stopped for a possible traffic violation. As the Police Report reflects, even the driver was not accused or suspected of a crime, he was subject to no alcohol-related examination, and he received no citation for the swerve. These facts raise significant questions about the legality of the prolonged detention of the driver and the passengers. Although the timeline is inexact, the documents submitted by Millan-Hernandez leave little doubt that the July 2017 stop was extended beyond what was reasonably necessary to address and resolve the immediate traffic concern: The traffic inquiry lasted a matter of minutes; the occupants of the vehicle were then detained for approximately two hours as the local officer directed the group to await the arrival of CBP agents.”
“Our review of the record leads us to conclude that Millan-Hernandez presented sufficient evidence that her seizure was based on her race to entitle her to an evidentiary hearing on the issue. She declared in her affidavit that, once the officer determined that the car’s driver had a foreign passport, he did not question the driver further as to the alleged traffic violation before demanding that all of the passengers produce their ‘papers.’ The Police Report is consistent with Millan-Hernandez’s account. Neither it nor anything else in the record reveals an alternative plausible basis for questioning and detaining the passengers, and the officer did not report inquiring of the passengers about any traffic or civil infractions, nor issuing any citations.” “We have recognized that, when a law enforcement officer detains and questions an individual about her immigration status although she is not suspected of a crime, those circumstances offer a strong suggestion that the search or seizure was improperly based on race.”
The full text of Millan-Hernandez v. Barr can be found here:
https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/23/doc/18-2107_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/5255578c-4d1d-4db5-ac16-bbbd78d43c08/23/hilite/
The petitioner was arrested during an ICE raid that was perceived to be conducted as retaliation for the city of New Haven, CT issuing IDs to undocumented immigrants. The Immigration Judge relied on the following three conclusions to find that there was no egregious Fourth Amendment violation during the arrest: 1) he arrived at the site of an ongoing law enforcement operation driving a vehicle owned by another individual, (2) he did not have identification on him, and (3) he was unable to speak English. The Second Circuit disagreed, noting that “Rodriguez arrived at 546 Woodward Avenue to provide documentation from the vehicle so that his boss could respond to law enforcement inquiries. He also gave a reasonable explanation as to his lack of identification: He had rushed out of bed and into the car in order to help his boss as quickly as possible. Lastly, while Rodriguez is not proficient in English, this ‘same characteristic applies to a sizable portion of individuals lawfully present in this country.’”
The full text of Rodriguez v. Barr can be found here:
“Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to ‘target’ over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed “in order to” arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.”
“The government does not dispute that Perez Cruz was seized for purposes of the Fourth Amendment when he was detained in his workplace, frisked, and handcuffed, or that the ICE agents did so without individualized reasonable suspicion. Rightly so. The record confirms that the agents detained Perez Cruz and his coworkers at the outset of the raid, blocking all exits and prohibiting them from leaving. That ICE suspected MSE was employing undocumented workers did not provide reasonable suspicion that Perez Cruz himself was undocumented.” “The government maintains that, despite this bedrock principle, Michigan v. Summers permitted the agents to detain Perez Cruz without suspicion on their arrival at the MSE factory to execute the search warrant they had in hand.”
“The authority provided by Summers for detention during the execution of a valid search warrant applies in the absence of probable cause or reasonable suspicion as to the detained individuals’ culpability, and so is analogous to the probable cause exceptions for which valid purpose is a prerequisite.” “Perez Cruz has presented substantial, uncontroverted evidence that the search authorized by the warrant was far from the ICE agents’ central concern. Instead, the agents’ principal goal was to detain, interrogate, and arrest a large number of individuals who worked at the MSE factory, hoping to initiate removal proceedings against them.” “Where ‘a safe and efficient search’ is not the primary purpose of the officers’ actions, Summers’s justification for bypassing the Fourth Amendment’s traditional protections disappears, just as the justifications for doing so disappear—and so bypass of the usual Fourth Amendment requisites becomes impermissible—in inventory and administrative search cases.”
The court concluded that Perez Cruz was entitled to suppression of his statements about alienage and the related documents obtained by ICE demonstrating his foreign birth.
The full text of Perez Cruz v. Barr can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/06/13/15-70530.pdf
The Second Circuit granted a petition for review of a denied motion to suppress, finding that the facts in the record were sufficient to warrant a full hearing on the motion.
"First, the facts set forth in the Form I‐213s and affidavits, if true, show that the troopers and Border Patrol agents went to the house because they were looking for 'known Hispanic migrants.' The forms say as much. Even assuming the suspected presence of a fugitive was a reason for the search, the forms suggest that the presence of 'known Hispanic migrants' was also a purpose. The forms do not, however, identify any specific or articulable facts to believe that anyone in the house ‐‐ other than the suspected fugitive ‐‐ had committed a crime. Moreover, petitionersʹ affidavits establish that they were questioned only after the troopers had determined that the suspected fugitive was not present; the Government has offered no explanation as to why the agents decided at that point to ask petitioners about their country of citizenship and immigration status ‐‐ other than that the agents were looking for 'Hispanic migrants.' Hence, petitioners presented substantial evidence that the search was improperly based on race."
"DHS did not provide a copy of the warrant. The Form I‐213s refer only to a 'felony search warrant,' without specifying where and when it was issued, and without revealing its terms and scope. The Form I‐213s seem to suggest that the warrant was issued in part because of the suspected presence of 'known Hispanic migrants' in the residence. If that is the case, we have serious doubts as to the sufficiency of the application for the warrant. And it is unclear why, if the purpose was to apprehend a fugitive, a 'felony search warrant' was issued rather than an arrest warrant. Petitioners have also raised a fair question as to whether the real purpose of the search was not to locate a fugitive but to apprehend 'known Hispanic migrants.' The state troopers were accompanied by not one, but two Border Patrol agents. While the Form I‐213s state that the agents were present to provide 'translation assistance,' it seems odd that the state troopers did not have their own interpreters and instead imposed on two agents from another, federal, law enforcement agency to provide translation services for one suspected fugitive. These facts support the notion that law enforcement was targeting Hispanic migrant workers from the start."
The full text of Zuniga-Perez and Hernandez-Campo v. Sessions can be found here:
The Fourth Circuit has rejected a request to apply the full scope of the exclusionary rule to evidence obtained in violation of the Fourth Amendment and used by the government in Immigration Court proceedings. The court affirmed that the exclusionary rule is only applicable in cases of egregious violations of the Fourth Amendment. This standard applies when state or local law enforcement violate the Fourth Amendment, as well as when federal officials commit the violation. "A stop or seizure based solely on an abuse of an officer’s legal authority and without reasonable suspicion of criminal activity will usually be egregious."
The full text of Sanchez v. Sessions can be found here:
The Ninth Circuit terminated removal proceedings against a petitioner who was seized by Coast Guard officials based solely on his Latino appearance. Because this was an egregious Fourth Amendment violation and a violation of immigration regulations designed to protected the petitioner from this type of racial profiling, the court determined that termination of proceedings was required. In light of the regulatory violation, the court declined to determine if the petitioner's previously submitted application for Family Unit benefits was independent evidence of alienage, finding that the violation of the regulation was grounds for termination, regardless of whether there was independent evidence of alienage.
The full text of Sanchez v. Sessions can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/30/14-71768.pdf
The Ninth Circuit issued an amended decision in this case on September 19, 2018. In it, the Court determined that even though the Coast Guard engaged in egregious violations of the Fourth Amendment, the immigration authorities would have discovered his alienage through his Family Unity benefits application. Nevertheless, the Court held that Mr. Sanchez may be entitled to termination of his removal proceedings without prejudice for egregious regulatory violations. The Court remanded his proceedings to the agency to determine if termination is appropriate. “Applying our test for termination without prejudice, we conclude that Sanchez has made a prima facie showing that the Coast Guard officers’ violation of § 287.8(b)(2) was conscience-shocking and therefore egregious.”
The full text of the amended opinion can be found here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/19/14-71768.pdf
Maria Garcia-Aguilar was arrested during a raid by Immigration and Customs Enforcement (ICE) on her workplace. She was handcuffed before she was asked any questions, and it was only after being transported to a military base that she was questioned by ICE officers about her identity and nationality. In the meantime, the Mexican consulate was alerted that Garcia-Aguilar had not returned home from work to pick up her young child, and consular officials faxed a request to ICE to release her. Along with the request, the consulate faxed Garcia-Aguilar's birth certificate.
In court, Garcia-Aguilar argued that her arrest, detention, and interrogation violated her constitutional rights (insomuch as she was arrested before ICE had any reason to believe she was in the country unlawfully), and asked that all evidence of her foreign birth, such as statements she made during the interrogation, be suppressed. She also asked that the birth certificate be suppressed, on the ground that but-for her unlawful arrest, the consulate would never have provided the birth certificate to ICE. The Immigration Judge denied her motion to suppress and the Board of Immigration Appeals affirmed.
The First Circuit agreed, finding that the connection between the raid and the voluntary submission of the birth certificate by the consulate was too attenuated. Even assuming the workplace raid was an egregious violation of the Constitution, the birth certificate was not tainted by the unlawfulness of the raid and could serve as evidence of Garcia-Aguilar's foreign birth.
The full text of Garcia-Aguilar v. Lynch can be found here: http://media.ca1.uscourts.gov/pdf.opinions/14-1185P-01A.pdf
