17‐996 Zuniga‐Perez v. Sessions BIA Hochul, IJ A 201 218 867/868 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2017
(Argued: May 16, 2018 Decided: July 25, 2018)
Docket No. 17‐996
JUAN MARTIN ZUNIGA‐PEREZ AND ELDER HERNANDEZ‐OCAMPO, AKA Fabian Ruia‐Abarca, AKA Jose Hernandez,
Petitioners,
v.
JEFFERSON B. SESSIONS III, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS
Before: POOLER, WESLEY, and CHIN, Circuit Judges.
The Clerk of Court is respectfully directed to amend the caption to conform to the above. Petition for review of a decision of the Board of Immigration
Appeals affirming the immigration judgeʹs denial ‐‐ without a hearing ‐‐ of
petitionersʹ motions to suppress evidence relating to their immigration status
obtained by law enforcement agents during a nighttime search of their residence.
Petitioners contend that, based on their affidavits submitted to the immigration
judge, they were entitled to a suppression hearing. We grant the petition for
review and remand this matter to the Board of Immigration Appeals for further
proceedings.
Petition GRANTED and case REMANDED.
ANNE E. DOEBLER, Buffalo, New York, for Petitioners.
MICHAEL C. HEYSE, Trial Attorney (Mary Jane Candaux, Assistant Director, on the brief), Office of Immigration Litigation, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, District of Columbia, for Respondent.
‐2‐ CHIN, Circuit Judge :
Petitioners Juan Martin Zuniga‐Perez and Elder Hernandez‐Ocampo
seek review of a March 10, 2017, decision of the Board of Immigration Appeals
(the ʺBIAʺ) affirming a February 24, 2016, decision of an immigration judge (the
ʺIJʺ) denying ‐‐ without a hearing ‐‐ their motion to suppress evidence. In re
Zuniga‐Perez, Hernandez‐Ocampo, Nos. A 201 218 867/868 (B.I.A. Mar. 10, 2017),
aff’g Nos. A 201 218 867/868 (Immig. Ct. Buffalo Feb. 24, 2016). Petitioners,
citizens of Mexico residing in upstate New York, were arrested during a search
of their residence by law enforcement officers purportedly looking for a criminal
suspect pursuant to a ʺfelony search warrant.ʺ
In removal proceedings before the IJ, both petitioners moved to
suppress the evidence obtained during the search, arguing that the search
violated the Fourth Amendment because it was conducted without a warrant,
consent, or exigent circumstances, and, even assuming the existence of a warrant,
the search exceeded its scope. Although petitioners submitted affidavits in
support of their motion, the IJ denied the motion, without holding a suppression
hearing. The question presented is whether the IJ should have held an
evidentiary hearing in light of the evidence submitted by petitioners. We hold
‐3‐ that because petitioners made a sufficient showing of an egregious constitutional
violation, they were entitled to a suppression hearing.
STATEMENT OF THE CASE
A. The Search
The facts are drawn from the Form I‐213s submitted by the
Department of Homeland Security (ʺDHSʺ) to initiate the removal proceedings
and petitionersʹ affidavits in support of their motions to suppress.1
At 10:00 pm on September 4, 2011, New York State Police gained
entry to petitionersʹ residence in Galen, New York, purportedly to execute a
ʺfelony search warrant.ʺ App. 135, 206. The police entered the house while
petitioners were asleep. Many other police surrounded the house. Petitioners
1 A Form I‐213 is an ʺofficial recordʺ prepared by immigration officials when initially processing a person suspected of being in the United States without lawful permission. See, e.g., Maldonado v. Holder, 763 F.3d 155, 158 n.1 (2d Cir. 2014) (quoting Bauge v. INS, 7 F.3d 1540, 1543 n.2 (10th Cir. 1993)). A Form I‐213 is a public record ʺmade by public officials in the ordinary course of their duties, and accordingly evidence[s] strong indicia of reliability.ʺ Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir. 1996). A Form I‐213 is considered ʺpresumptively reliableʺ and admissible even absent the testimony of the officer who prepared it, unless ʺthe reliability of the form is somehow undermined.ʺ Id. at 117; see also In re Ponce‐Hernandez, 22 I. & N. Dec. 784, 785 (B.I.A. 1999) (ʺ[A]bsent any evidence that a Form I‐213 contains information that is incorrect or was obtained by coercion or duress, that document is inherently trustworthy and admissible as evidence to prove alienage or deportability.ʺ). ‐4‐ ʺshared a rented roomʺ in the house and were awakened by the police knocking
on the window and shining a flashlight into their room, ʺshouting, ʹopen the
window. Open the door.ʹʺ App. 126 ¶ 1, 4; 196 ¶ 1, 4. Petitioners did not open
the door, nor did they give permission to the police to enter. Petitioners learned
later that another resident of the house, who lived in a different room, let the
police in because, as he explained, ʺthe police gave him no choice.ʺ App. 126 ¶ 3,
196 ¶ 3.
The Form I‐213s provide the following explanation for the search:
Troopers . . . were executing a felony search warrant located at [the house]. Information received by NYSP stated that a possible fugitive from justice was located at this address and in addition there were known Hispanic migrants residing at the residence.
App. 135, 206 (emphasis added). The police were accompanied by two members
of the United States Customs and Border Patrol who were allegedly brought
along to provide ʺtranslation assistance.ʺ App. 135, 206. According to
petitionersʹ affidavits, petitioners ʺstayed in [their] room as the police entered the
house, until [the police] came to [their] room.ʺ App. 126 ¶ 4, 196 ¶ 4. The police
then ʺrounded up everyone in the house and took [them] to the living room.ʺ
App. 126 ¶ 5, 196 ¶ 5. They asked if petitioners knew the fugitive. Petitioners
‐5‐ stated that they ʺknew him but that he was not thereʺ though he ʺused to live in
the same room as [petitioners].ʺ App. 126 ¶ 6, 196 ¶ 6.
One of the Border Patrol officers then asked petitioners if they ʺhad
papers to be in the United States.ʺ App. 126 ¶ 7, 196 ¶ 7. Three of the residents
(including petitioners) stated that they were citizens of Mexico and did not
possess valid immigration documentation. Border Patrol agents then arrested
those three residents for violating Section 212(a)(6)(A)(i) of the Immigration and
Nationality Act (ʺINAʺ), 8 U.S.C. § 1182(a)(6)(A)(i).2 Border Patrol agents
allowed Hernandez‐Ocampo to get dressed. As he did so, two officers with rifles
ʺguardedʺ him. App. 196 ¶ 7. Zuniga‐Perez was taken into custody without an
opportunity to change, although he was in shorts. They then handcuffed
petitioners. The Border Patrol asked about petitionersʹ immigration status only
after the police determined that the fugitive was not present.
B. The Proceeding Before the IJp
On September 5, 2011, DHS issued a Notice to Appear to both
petitioners charging them with being removable pursuant to INA
2 8 U.S.C. § 1182(a)(6)(A)(i) provides that ʺ[a]n alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.ʺ ‐6‐ § 212(a)(6)(A)(i). Although they initially appeared pro se, they eventually
obtained counsel. On November 20, 2015, with the assistance of counsel,
petitioners moved to suppress the two Form I‐213s and all evidence from the
September 2011 raid and arrests. Petitioners argued that the Border Patrol agents
had no articulable suspicion to believe that petitioners had violated the law and
that they conducted the search without a warrant, consent, or exigent
circumstances. Petitioners also alleged that the Border Patrol agents used the
access obtained by the police as a pretext to search their residence, and that the
search was conducted in violation of agency regulations requiring reasonable
suspicion before stopping and seizing individuals. Finally, petitioners argued
that the search was racially motivated because the police conducted the search
because they believed there were ʺknown Hispanic migrantsʺ at the residence.
Petʹrsʹ Mot. to Suppress at 4‐5, In re Zuniga‐Perez, No. A 201 218 867 (Immig. Ct.
Buffalo Nov. 20, 2015). Petitioners requested an evidentiary hearing in the event
the IJ did not grant their motion on the papers.
The IJ held a conference on December 7, 2015. Counsel for
petitioners raised the issue of the lack of a search warrant in the record, noting, ʺI
donʹt have the search warrant. I donʹt know if there was literally a search
‐7‐ warrant or if it was an arrest warrant or what the state trooper[s] had.ʺ App. 67.
Counsel also voiced her concerns about the use of Border Patrol officers as
interpreters:
[M]y concern is how the state police and the Border Patrol interact. So, the state police have independent interpreters that they called telephonically when they need interpreters for cases. And in this particular case, they called the [B]order [Patrol] to come act as translators. But the Border Patrol donʹt work for the New York State Police as translators. So, my argument, your honor, is that that is a pre‐textu[]al way that theyʹre inviting the Border Patrol along because they believe that theyʹre going to gain access to a location. But thereʹs no reasonable suspicion for that access, your honor.
App. 67‐68. Counsel also argued that ʺsimply because someone might be a
migrant Hispanic farm worker doesnʹt necessarily mean that they lack
status.ʺ App. 69.3
The IJ asked several questions of petitionersʹ counsel and DHS
counsel, but no witnesses testified and no evidence was presented. DHS
had not yet responded to the suppression motion, and the matter was
adjourned to give it an opportunity to do so. DHS submitted a written
response on December 22, 2015.
3 In fact, one of the seven individuals interrogated by the agents was a U.S. citizen. ‐8‐ C. The IJ Decision
On February 24, 2016, without any further proceedings, the IJ denied
petitionersʹ motion to suppress in a written decision. The IJ found that the
evidence was not obtained
in violation of any provision of the U.S. Constitution or any law or regulation of the United States. Further, no agency violations occurred that would warrant suppression of any resulting evidence. Further still, the instant motion is not supported by any evidence and does not support a prima facie showing to suppress evidence.
App. 87. The IJ did not address petitionersʹ request for an evidentiary hearing.
At a hearing on March 16, 2016, the IJ found petitioners removable
and inadmissible pursuant to INA § 212(a)(6)(A)(i).
D. The Appeal to the BIA
Petitioners appealed the IJʹs decision to the BIA. On March 10, 2017,
the BIA affirmed the IJʹs decision. In re Zuniga‐Perez, Hernandez‐Ocampo, Nos. A
201 218 867/868 (B.I.A. Mar. 10, 2017). The BIA concluded:
We affirm the Immigration Judgeʹs decision denying the respondentsʹ motion to suppress evidence and ordering them removed. We discern no error in the Immigration Judgeʹs finding that the search warrant executed by the New York State Police was not conducted in a way that resulted in an egregious violation of the respondentsʹ Fourth Amendment
‐9‐ rights. As the Immigration Judge found, the respondentsʹ affidavits do not allege, and there is no evidence to support a claim, that law enforcement officials took any action that was racially motivated or was taken because the respondents are Hispanic in appearance or are migrant farm workers. We are unable to find evidence that the CBP officials engaged in an egregious violation of the Fourth Amendment such that the manner in which the respondents were questioned would be considered fundamentally unfair. There is no evidence that physical force was used or that the respondents were threatened or mistreated in any way. The respondents offer no compelling basis for departing from the general principle that the exclusionary rule does not apply to removal proceedings.
Although the respondents argue that an evidentiary hearing should be held, a hearing is unnecessary because, even accepting the respondentsʹ affidavits as true, the actions of the government were not ʺegregious,ʺ and thus their claim does not set forth a prima facie case for suppression.
App. 4 (citations omitted). This petition for review followed.
DISCUSSION
This Court reviews the agencyʹs factual findings for substantial
evidence, see 8 U.S.C. § 1252(b)(4)(B), and legal conclusions de novo. See Almeida‐
Amaral v. Gonzales, 461 F.3d 231, 233‐34 (2d Cir. 2006). Generally, credibility
questions in deportation proceedings are treated as questions of fact subject to
the substantial evidence standard. See Gao v. Sessions, 891 F.3d 67, 76 (2d Cir.
‐10‐ 2018); Singh v. Mukasey, 553 F.3d 207, 212‐13 (2d Cir. 2009). ʺCredibility
determinations that are based on the IJʹs analysis of testimony, as opposed to
demeanor, are granted less deference.ʺ Gao v. Bd. of Immigration Appeals, 482 F.3d
122, 127 (2d Cir. 2007). And where the question is whether a petitioner is entitled
to an evidentiary hearing, the agency must accept the allegations in the proffered
affidavits as true. See Maldonado v. Holder, 763 F.3d 155, 160‐62 (2d Cir. 2014).
A. Applicable Law
1. General Constitutional Principles
The Constitution protects both citizens and non‐citizens. Under the
Fifth Amendment, an alien is entitled to due process of law in deportation
proceedings. Reno v. Flores, 507 U.S. 292, 306 (1993); Singh, 553 F.3d at 214 (ʺIt is
well established that the Fifth Amendment affords aliens due process of law
during deportation proceedings.ʺ); Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996)
(same). Specifically, ʺthe Fifth Amendment protects aliens in deportation
proceedings from procedures that transgress the fundamental notions of ʹfair
playʹ that animate the Fifth Amendment.ʺ Rajah v. Mukasey, 544 F.3d 427, 441 (2d
Cir. 2008) (quoting Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991)). Fourth
Amendment protections also extend to non‐citizens. See INS v. Lopez‐Mendoza,
‐11‐ 468 U.S. 1032, 1046 (1984) (noting that it is ʺ[i]mportant . . . to protect the Fourth
Amendment rights of all personsʺ); Cotzojay v. Holder, 725 F.3d 172, 181 (2d Cir.
2013) (ʺ[I]t is uncontroversial that the Fourth Amendment applies to aliens and
citizens alike.ʺ).
Several Fourth and Fifth Amendment principles are implicated in
this case. First, ʺin the absence of consent or exigent circumstances . . . [the Court
has] consistently held that the entry into a home to conduct a search or make an
arrest is unreasonable under the Fourth Amendment unless done pursuant to a
warrant.ʺ Cotzojay, 725 F.3d at 181 (quoting Steagald v. United States, 451 U.S. 204,
211 (1981)). The Fourth Amendment reaches its ʺzenith in the home,ʺ because at
its core the Amendment safeguards ʺʹthe right of a man to retreat into his own
home and there be free from unreasonable governmental intrusion.ʹʺ Id. (quoting
Payton v. New York, 445 U.S. 573, 589‐90 (1980)).
Second, even where a warrant has been issued, law enforcement
agents are bound by its terms: ʺbecause a warrant generally authorizes no more
than what it expressly provides, to act unreasonably beyond the terms of a
warrant is akin to acting without a warrant at all.ʺ Simon v. City of N.Y., 893 F.3d
83, 94 (2d Cir. 2018). Search and arrest warrants impose different limitations.
‐12‐ For search warrants, ʺ[w]e look directly to the text of the search warrant to
determine the permissible scope of an authorized search.ʺ United States v.
Bershchansky, 788 F.3d 102, 111 (2d Cir. 2015). The warrant must ʺdescribe with
particularity the place to be searched and the items to be seizedʺ ‐‐ a requirement
that ʺprotects individuals from ʹexploratory rummagingʹ not supported by
probable cause.ʺ Id. at 110‐11 (quoting United States v. Galpin, 720 F.3d 436, 445
(2d Cir. 2013)). By contrast, an arrest warrant ʺimplicitly carries with it the
limited authority to enter a dwelling in which the suspect lives when there is
reason to believe the suspect is within.ʺ United States v. Bohannon, 824 F.3d 242,
249 (2d Cir. 2016) (quoting Payton, 445 U.S. at 603).
When executing an arrest warrant in a residence, officers may
conduct a ʺproperly limited protective sweep,ʺ United States v. Hassock, 631 F.3d
79, 85 (2d Cir. 2011) (quoting Maryland v. Buie, 494 U.S. 325, 337 (1990)), but they
must ʺsupply specific and articulable facts warranting a reasonably prudent
officer to believe that an individual posing a danger is lurking in an area to be
swept,ʺ id. at 86. Moreover, ʺsuch a protective sweep, aimed at protecting the
arresting officers, . . . is nevertheless not a full search of the premises, but may
extend only to a cursory inspection of those spaces where a person may be
‐13‐ foundʺ and ʺlasts no longer than is necessary to dispel the reasonable suspicion
of danger and in any event no longer than it takes to complete the arrest and
depart the premises.ʺ United States v. Delva, 858 F.3d 135, 149 (2d Cir. 2017)
(quoting Buie, 494 U.S. at 335‐36).
Third, if an individual is lawfully detained during the execution of a
search warrant, officers are not required to have ʺindependent reasonable
suspicion in order to question [an individual] concerning [his or her]
immigration status.ʺ Muehler v. Mena, 544 U.S. 93, 100 (2005); see id. at 95‐96
(upholding detention and questioning of individual present in home, where
search warrant ʺauthorized a broad search of the house and premises for, among
other things, deadly weapons and evidence of gang membershipʺ). At the same
time, a seizure may become unlawful if an individualʹs ʺdetention [is] prolonged
by the questioning,ʺ id. at 101, and the ʺFourth Amendment does provide
protection against random or gratuitous questioning related to an individualʹs
immigration status,ʺ Rajah, 544 F.3d at 441.
Fourth, ʺ[s]tatements made during a custodial interrogation are
generally inadmissible unless a suspect has first been advised of his or her rightsʺ
under the Fifth Amendment pursuant to Miranda v. Arizona, 384 U.S. 436 (1966).
‐14‐ United States v. Faux, 828 F.3d 130, 134 (2d Cir. 2016).4 Determining whether an
individual is in custody is ʺan objective inquiry that asks (1) ʹwhether a
reasonable person would have thought he was free to leave the police encounter
at issueʹ and (2) whether ʹa reasonable person would have understood his
freedom of action to have been curtailed to a degree associated with formal
arrest.ʹʺ Id. (quoting United States v. Newton, 369 F.3d 659, 672 (2d Cir. 2004)).
Finally, a search may not be based on ʺraceʺ or other improper
consideration. Cotzojay, 725 F.3d at 180. As the Supreme Court has made
abundantly clear, stopping and interrogating people based solely on race or
ethnicity violates the Fourth Amendment. See United States v. Brignoni‐Ponce, 422
U.S. 873, 885‐86 (1975) (because ʺMexican ancestry . . . alone [does not] justify . . .
a reasonable belief that [petitioners] were aliens,ʺ stopping and detaining a
person based solely on Mexican ancestry violates the Fourth Amendment).
4 Muehler only addressed the petitionerʹs Fourth Amendment rights and did not discuss any rights she may have had under Miranda. See 544 U.S. at 98‐102. To the extent that the officersʹ questioning here fell outside the permissible bounds laid out by the Supreme Court in Muehler, however, we think Miranda warnings were arguably required. We leave the resolution of that question to the agency in the first instance, following an evidentiary hearing. ‐15‐ 2. Application of the Exclusionary Rule to Removal Proceedings
While the exclusionary rule does not usually apply to civil
deportation proceedings, the exclusion of evidence is appropriate where there
are ʺegregious violations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness.ʺ Lopez‐Mendoza, 468 U.S. at 1050; see
also Maldonado, 763 F.3d at 159. This Court has interpreted Lopez‐Mendoza to hold
that the exclusion of evidence is warranted if the record shows either (1) ʺan
egregious violation that was fundamentally unfairʺ or (2) a violation, which
ʺregardless of its egregiousness or unfairness . . . undermined the reliability of
the evidence in dispute.ʺ Almeida‐Amaral, 461 F.3d at 235.
Petitioners rely only on the first category, an ʺegregious violation
that was fundamentally unfair.ʺ Id. We use ʺa flexible case‐by‐case approachʺ to
determine whether a seizure is the result of an egregious violation of
constitutional rights. Cotzojay, 725 F.3d at 182 (citation omitted).
We have identified two non‐exclusive inquiries to aid the
determination of whether an ʺegregious violationʺ of constitutional rights has
occurred. Id. at 180. First, ʺthe egregiousness of a constitutional violation cannot
be gauged solely on the basis of the validity (or invalidity) of the stop, but must
‐16‐ also be based on the characteristics and severity of the offending conduct.ʺ
Almeida‐Amaral, 461 F.3d at 235. Second, a seizure may be an egregious violation,
even when it is not ʺespecially severe,ʺ if the seizure was ʺbased on race (or some
other grossly improper consideration).ʺ Cotzojay, 725 F.3d at 180 (quoting
Almeida‐Amaral, 461 F.3d at 235). Factors we consider include ʺwhether the
violation was intentional; whether the seizure was ʹgross or unreasonableʹ and
without plausible legal ground; whether the invasion involved ʹthreats,
coercion[,] physical abuseʹ or ʹunreasonable shows of forceʹ; and whether the
seizure or arrest was based on race or ethnicity.ʺ Id. at 182 (quoting Oliva‐Ramos
v. Att’y Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012)). We have also observed that
ʺʹegregiousʹ by definition is very bad indeed, and that the Supreme Court
contemplated only such abuses as ʹtransgress notions of fundamental fairness.ʹʺ
Maldonado, 763 F.3d at 159 (quoting Lopez‐Mendoza, 468 U.S. at 1050).
The pre‐dawn raid of a home without a warrant, consent, or
reasonable suspicion is one example of an egregious violation. See Cotzojay, 725
F.3d at 183; see also Lopez‐Mendoza, 468 U.S. at 1051 n.5 (discussing BIA precedent
where suppression was warranted in ʺa night‐time warrantless entry into the
aliensʹ residenceʺ); Lopez‐Rodriguez v. Mukasey, 536 F.3d 1012, 1018‐19 (9th Cir.
‐17‐ 2008) (holding that warrantless search of home without consent or exigent
circumstances is egregious violation of the Fourth Amendment). We have also
suggested that ʺsome degree of physical threat or forcible contactʺ may be a basis
for finding an egregious Fourth Amendment violation. Cotzojay, 725 F.3d at 182.
And a seizure ʺbased on race (or some other grossly improper consideration)ʺ
may constitute an egregious violation. Id. at 180 (quoting Almeida‐Amaral, 461
F.3d at 235).
A petitioner seeking to suppress evidence in a removal proceeding
initially bears the burden of coming forward with proof ʺestablishing a prima
facie case.ʺ Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988) (quoting
Matter of Burgos, 15 I. & N. Dec. 278, 279 (B.I.A. 1975)); accord Cotzojay, 725 F.3d at
178. A petitioner must first provide an affidavit that, taken as true, ʺcould
support a basis for excluding the evidence.ʺ Cotzojay, 725 F.3d at 178 (emphasis
added) (citation omitted); accord Maldonado, 763 F.3d at 162. If the affidavit is
sufficient, the petitioner is entitled to ʺan opportunity to confirm those
allegations in an evidentiary hearing.ʺ Maldonado, 763 F.3d at 162. Once a
petitioner makes out a prima facie case, the burden shifts to the Government ʺto
show why the evidence in question should be admitted.ʺ Cotzojay, 725 F.3d at
‐18‐ 178. In deciding whether the burden shifts, the evidence and facts alleged must
be viewed ʺmost favorably to [the] petitioner.ʺ Almeida‐Amaral, 461 F.3d at 237.
B. Application
Viewing the facts set forth in the affidavits and Form I‐213s in the
light most favorable to petitioners, see Almeida‐Amaral, 461 F.3d at 237; Cotzojay,
725 F.3d at 178, we conclude that petitioners made a sufficient showing of an
egregious constitutional violation to warrant an evidentiary hearing: those facts
could support a basis for excluding the evidence. Cotzojay, 725 F.3d at 178.
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 ʺknown Hispanic migrants.ʺ 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 ʺknown Hispanic migrantsʺ 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
‐19‐ agents decided at that point to ask petitioners about their country of citizenship
and immigration status ‐‐ other than that the agents were looking for ʺHispanic
migrants.ʺ Hence, petitioners presented substantial evidence that the search was
improperly based on race. See Almeida‐Amaral, 461 F.3d at 235.
Second, although the Government relies on the existence of a
ʺfelony search warrant,ʺ petitioners have raised fair questions as to whether a
warrant existed and, if so, whether the search exceeded its scope. Moreover,
petitionersʹ affidavits, taken as true, establish that neither consent nor exigent
circumstances existed to justify a warrantless search.
DHS did not provide a copy of the warrant. The Form I‐213s refer
only to a ʺfelony search warrant,ʺ 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
ʺknown Hispanic migrantsʺ 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 ʺfelony search warrantʺ 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
‐20‐ apprehend ʺknown Hispanic migrants.ʺ 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 ʺtranslation assistance,ʺ 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.
Moreover, even assuming the state troopers had a warrant, fair
questions exist as to whether the interrogation exceeded its scope. Of course, this
inquiry is made all the more difficult because the warrant has not been made
available to examine. If, as the Government asserts, the warrant authorized a
search of the home to apprehend a fugitive, once the law enforcement agents
ascertained that the fugitive was not present, their mission was complete, and
any subsequent questioning was arguably beyond the scope of the warrant. A
fair question exists as to whether the agents had any proper basis under the
warrant to question petitioners about their immigration status. Fair questions
also exist as to whether petitioners were in custody when they were interrogated
and whether the questioning was conducted in coercive circumstances.
‐21‐ Petitioners have attested to the fact they were rounded up by and questioned in
the presence of police officers, and Hernandez‐Ocampo attested that he was
guarded by armed officers. These facts certainly suggest that petitioners did not
feel free to leave the premises during the questioning.
As to consent to enter the home, petitioners aver in their affidavits
that they did not consent to the search ‐‐ they were asleep in their room, they
never opened the door to law enforcement officers, and the resident who opened
the door did so apparently because he had ʺno choice.ʺ These facts are similar to
those set forth in the affidavit in Cotzojay, a case in which the IJ held a
suppression hearing. 725 F.3d at 175. There, petitioner stated in his affidavit that
he was asleep in his bedroom and awakened by officers at 4 A.M. knocking on
his window and yelling, ʺPolice! Open up.ʺ Id. He saw the officers escort
another resident out of the house, and then saw his sister‐in‐law close and lock
the front door. Id. He then stayed in his room, and as a result did not know how
or when the officers re‐gained entry to the house. Id. The officer re‐entered the
house, however, and arrested petitioner. Id. at 174. The IJ ʺheld a suppression
hearing based on a ʹpreliminary ruling that [petitionerʹs] affidavit alone
‐22‐ constituted prima facie evidenceʹ sufficient to entitle [petitioner] to a hearing.ʺ
Id. at 175.
Third, petitioners presented sufficient evidence that, if credited,
would show the agents engaged in severe conduct. This was a nighttime raid of
a home, perhaps without a warrant or consent, and with a showing of physical
force ‐‐ knocking on windows, shining flashlights into a bedroom, the
surrounding of the house by police officers, armed with rifles, and the rounding
up of seven residents. See Maldonado, 763 F.3d at 160 (ʺThe affidavit in Cotzojay
satisfied this test [for a suppression hearing] because it averred facts that were
appalling under any standard: a ʹdeliberate, nighttime, warrantless entry into an
individualʹs home without consent and in the absence of exigent circumstances.ʹʺ
(quoting Cotzojay, 725 F.3d at 183)). Moreover, again, petitioners have presented
evidence to suggest that the search was pretextual in the sense that the actual
target was not a fugitive from justice but Hispanic migrant workers, and that
race was a factor.
The Government insists on appeal that ʺnothing in the record
provides the requisite egregious circumstances as to the officersʹ conduct
necessary to mandate application of the exclusionary rule.ʺ Br. for Respʹt at 7.
‐23‐ The BIA and the IJ concluded that petitioners presented ʺno evidenceʺ that the
law enforcement actions were motivated by race. App. 4; see App. 87. We
disagree. In fact, the Form I‐213s on their face suggest that law enforcement
searched the house at least in part because ʺthere were known Hispanic
migrantsʺ believed to be present. The involvement of Border Patrol agents and
the circumstances described in petitionersʹ affidavits also support the assertion
that the agents were acting based at least in part on race.
The Supreme Court has recognized that, ʺ[a]s a general rule, it is not
a crime for a removable alien to remain present in the United States.ʺ Arizona v
United States, 567 U.S. 387, 407 (2012) (citing Lopez‐Mendoza, 468 U.S. at 1038). ʺIf
the police stop someone based on nothing more than possible removability, the
usual predicate for an arrest is absent.ʺ Id. Here, there is no evidence in the
record of any illegal activity on the part of petitioners, and on this record a
reasonable fact‐finder could conclude that they were targeted merely because
they appeared to be Hispanic migrants. But being an Hispanic migrant is not a
crime. See Brignoni‐Ponce, 422 U.S. at 885‐86 (ʺMexican ancestry . . . alone [does
not] justify . . . a reasonable belief that [petitioners] were aliens.ʺ). Allowing law
enforcement officers to target people based solely on characteristics such as
‐24‐ ethnicity or national origin is to ʺcondone ethnic harassment.ʺ Maldonado, 763
F.3d at 172 (Lynch, J., dissenting). Indeed, ʺ[i]mmigration enforcement that is
based not on individualized suspicion but on ethnic generalizations teeters on
the verge of ʹthe ugly abyss of racism.ʹʺ Id. at 174 (quoting Korematsu v. United
States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting), abrogated by Trump v.
Hawaii, 138 S. Ct. 2392, 2423 (2018)).
In the end, there may be legitimate, non‐discriminatory reasons for
the officersʹ actions here, and there may be specific and articulable reasons ‐‐
beyond the mere presence of ʺknown Hispanic migrantsʺ ‐‐ for their belief that a
crime had been committed. But those reasons are not apparent from this record,
and there was more than ample reason for an evidentiary hearing.
Accordingly, we hold that petitioners made a sufficient showing to
warrant a suppression hearing.
CONCLUSION
For the reasons set forth above, the petition is GRANTED and the
case is REMANDED to the BIA for proceedings not inconsistent with this
opinion.
‐25‐