Case: 16-16117 Date Filed: 08/23/2018 Page: 1 of 17
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 16-16117 ________________________
Agency No. A205-854-783
JOSE OSBALDO BATRES-GARAY,
Petitioner, versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the Board of Immigration Appeals _______________________
(August 23, 2018)
Before WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, * District Judge.
PER CURIAM:
* Honorable Lisa Godbey Wood, United States District Judge for the Southern District of Georgia, sitting by designation. Case: 16-16117 Date Filed: 08/23/2018 Page: 2 of 17
This petition for review of a decision of the Board of Immigration Appeals
requires us to decide whether the Board erred when it denied Jose Osbaldo Batres-
Garay’s motion to suppress evidence of his alienage without an evidentiary hearing
and to terminate his removal proceedings. Batres, a native and citizen of El
Salvador, declared that officers lacked consent when they entered the apartment
that he shared with his brother’s family around 5:30 a.m. The immigration judge
disregarded Batres’s description of the officers’ entry because he failed to state that
he had firsthand knowledge of it, and the immigration judge ruled that Batres was
not entitled to an evidentiary hearing on his motion to suppress. The immigration
judge then ordered Batres removed from the United States. The Board later
dismissed Batres’s appeal. Batres contends that he established a prima facie case
that the officers violated the Fourth and Fifth Amendments and several federal
regulations. We deny Batres’s petition in part and dismiss it in part.
I. BACKGROUND
Deportation officers of Broward County Fugitive Operations apprehended
Jose Osbaldo Batres-Garay, a citizen of El Salvador who had not been admitted,
inspected, or paroled into the United States, when the officers searched the
apartment where Batres lived with his brother’s family. While Batres was sleeping
around 5:30 a.m., he was “awakened by loud voices outside [of their] apartment.”
Batres “did not pay attention” or “get ou[t] of [his] bed.” He heard knocks on the
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door, but still remained in bed. Officers then entered the bedroom where Batres
“was sleeping . . . without . . . knocking on [his] door[,] yelled at him[,] and told
[him] to get up and that [he] was under arrest.” The officers “pulled [Batres] out of
[his] bed wearing only [his] underwear,” refused to allow him to get dressed, and
brought him into the living room. After an officer “demand[ed]” Batres’s
identification, he told them that his passport was in the car, and Batres’s sister-in-
law and one of the officers went to obtain it. The officers remained in the
apartment for about 30 to 45 minutes after they told Batres that he was under
arrest. They then left without taking Batres or his relatives anywhere.
Agent A. Arman, one of the officers, submitted a Form I-213, Record of
Deportable/Inadmissible Alien, after his encounter with Batres. On that form, he
stated that Batres was a citizen of El Salvador who had “not [been] admitted,
inspected, or paroled into the United States by a[n] . . . [i]mmigration [o]fficial”
and described his encounter with Batres. He stated that he and other deportation
officers “apprehended” Batres during the search of an apartment for another
person. And he stated that he witnessed Batres’s sister-in-law give consent to enter
the apartment to another deportation officer.
Batres filed a motion to suppress the Form I-213 and to terminate the
removal proceedings. He argued that the government obtained the evidence of his
alienage in the Form I-213 in violation of the Fourth and Fifth Amendments and in
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violation of federal regulations. In support of his motion to suppress, Batres
submitted a declaration in which he described his encounter with the deportation
officers. Batres stated both that he had “personal knowledge of the facts [in the
declaration]” and that the facts in the declaration were “true and correct to the best
of [his] knowledge, information, and belief.”
In his declaration, Batres described the officers’ entry into his bedroom and
their questioning of him, but he also detailed how the officers entered the
apartment while he remained in his bedroom. He stated that his brother and sister-
in-law got out of their bed in another room. His “brother looked outside the
window” and saw “approximately seven or eight armed individuals.” Batres
explained that he “was surprised that someone was at [their] door so early but
stayed in bed and let [his] brother deal with the unexpected visitor at such an early
hour.” When Batres’s brother and sister-in-law went to the front door, his brother
“cracked the door open” and “one of the officers st[u]ck his foot [i]n the door,
pushed it open[,] and entered [the] home.” The officers asked Batres’s brother and
sister-in-law for their identification and “whether there were other people in the
home.”
The immigration judge denied Batres’s motion. The immigration judge
reasoned that “[o]nly an egregious violation of the Fourth Amendment or other
liberties that might transgress notions of fundamental fairness or undermine the
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probative value of the evidence will trigger suppression in a civil [i]mmigration
proceeding.” And the immigration judge explained that Batres was required to
“present a prima facie case” of an egregious violation “[t]o obtain a suppression
hearing.” The immigration judge also explained that “[a]bsent evidence that a
Form I-213 contains information that is incorrect or was obtained by coercion or
duress, that document is considered inherently trustworthy and admissible as
evidence to prove alienage or deportability.” The immigration judge explained that
Batres “did not personally see the officer force his way into the home,” which
meant that Batres failed to make “a prima facie showing that the officers entered
the home without consent.” The immigration judge also explained that Batres
failed to “show[] that the officers threatened, coerced, or physically abused the
respondent in order to obtain his passport” and that he “failed to present evidence
of coercion or duress that might suggest his statement was not voluntary.” The
immigration judge ruled that “[t]he respondent’s affidavit does not overcome the
presumption of reliability typically afforded the Form I-213.”
The immigration judge ordered Batres removed to El Salvador. The
immigration judge found that Batress was unlawfully present in the United States,
and the immigration judge determined that “the Form I-213 establishes that the
respondent is removable by evidence that is clear and convincing.”
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The Board dismissed Batres’s appeal. It reasoned that, even when evidence
is obtained in violation of the Fourth Amendment, the evidence is admissible in
immigration proceedings unless that violation was an “egregious violation[] where
the use of the evidence would constitute a violation of due process.” It “f[ou]nd no
clear error with the [i]mmigration [j]udge’s finding that the record does not reveal
coercion on the part of immigration officials.” It affirmed the immigration judge’s
“finding[s]” that “(1) the respondent’s brief questioning in his home was standard
procedure, (2) the respondent volunteered that his passport was in the car and his
sister-in-law retrieved it, and (3) the respondent did not witness the officer’s entry
into the home because he remained in his room until the officers entered his
bedroom.” “Based on these properly found facts,” the Board concluded that “the
use of this evidence was not fundamentally unfair.” And the Board concluded that,
even if it assumed that the officers violated the Fourth Amendment when they
obtained the evidence of Batres’s alienage, the violation was not egregious. It also
ruled that “the [i]mmigration [j]udge did not violate [Batres’s] Fifth Amendment
right to due process.” And it rejected Batres’s arguments that the officers violated
federal regulations.
II. STANDARD OF REVIEW
“We review the decision of the Board and ‘the decision of the Immigration
Judge to the extent that the Board expressly adopted the opinion of the
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Immigration Judge.’” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir.
2010) (quoting Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir.
2009)). “We review legal conclusions de novo, but our review of . . . factual
findings is ‘limited’ by ‘the highly deferential substantial evidence test.’” Sama v.
U.S. Att’y Gen., 887 F.3d 1225, 1231 (11th Cir. 2018) (quoting Silva v. U.S. Att’y
Gen., 448 F.3d 1229, 1236–37 (11th Cir. 2006)).
III. DISCUSSION
Batres makes four arguments. First, Batres argues that the Board should
have considered the portion of his declaration in which he described how the
officers entered the apartment without consent. Second, he contends that his
declaration established a prima facie case of an egregious violation of the Fourth
Amendment that entitled him to a suppression hearing. Third, he contends that his
declaration also established a prima facie violation of the Fifth Amendment.
Fourth, he contends that the officers violated federal regulations and that his
removal proceedings should have been terminated. These arguments fail.
A. The Immigration Judge Did Not Err by Excluding Batres’s Description of Events that He Did Not Personally Observe. Batres contends that the immigration judge erred by disregarding the part of
his declaration in which he described how the officers allegedly entered the
apartment without consent, but we disagree. The Board requires that, to receive an
evidentiary hearing on a motion to suppress evidence, an individual bears the
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burden to “establish[] a prima facie case” with “the sworn statement of persons
having personal knowledge of the facts.” Matter of Tang, 13 I. & N. Dec. 691, 692
(BIA 1971) (citation and quotation marks omitted). Only after the individual
satisfies his burden to establish a prima facie case of a violation, “will [the
government] be called upon to assume the burden of justifying the manner in
which it obtained its evidence.” Id. But Batres lacked personal knowledge about
how the officers entered the apartment because he was in another room when they
entered. Batres declared that his brother and sister-in-law answered the door when
the officers arrived and that, when his brother “cracked the door open,” one of the
officers pushed his way into the apartment even though, according to his
declaration, Batres remained in his bed in another room.
Batres argues that “personal knowledge is distinct[] from—and broader
than—personal observation,” but we disagree. “[P]ersonal knowledge” is
“[k]nowledge gained through firsthand observation or experience, as distinguished
from a belief based on what someone else has said.” Personal Knowledge, Black’s
Law Dictionary 951 (9th ed. 2004). Indeed, Garner’s Dictionary of Legal Usage
contrasts “personal knowledge” with “information” and “knowledge” by
explaining that “[p]ersonal knowledge denotes much more narrowly a fact or
cluster of facts acquired by firsthand observation of or participation in events being
inquired into, coupled with a credible degree of recollection.” Knowledge,
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Garner’s Dictionary of Legal Usage 512 (3d ed. 2011) (emphasis added) (italics
omitted). Batres concedes that his declaration “contains information from others”
and that he did not personally observe the officers enter the apartment or
participate in any effort to bar their entry. And we reject his contention that he can
satisfy the requirement of personal knowledge “based on what someone else has
said.” Personal Knowledge, Black’s Law Dictionary, supra, at 951.
To be sure, as Batres points out, “[h]earsay evidence is admissible in
immigration proceedings ‘if it is probative and its use is not fundamentally unfair
so as to deprive the alien of due process.’” Matter of Vides Casanova, 26 I. & N.
Dec. 494, 499 (BIA 2015) (alteration adopted) (quoting Cortez v. U.S. Att’y Gen.,
446 F. App’x 166, 168 (11th Cir. 2011)). But Batres conflates what kind of
evidence is required to obtain a hearing for a motion to supress with what kind of
evidence is later admissible at a removal hearing. Personal knowledge is required
to make a prima facie case for a hearing on a motion to suppress. Matter of Tang,
13 I. & N. Dec. at 692. And Batres points to no decision where the Board has
defined the term “personal knowledge” to include information based on hearsay.
The immigration judge was entitled to disregard Batres’s description of how the
officers entered the apartment and instead to credit the account in the Form I-213,
in which a deportation officer stated that Batres’s sister-in-law gave the officers
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consent to enter. Batres could have, but did not, submit declarations from his
brother or sister-in-law to contradict that account.
B. The Board Did Not Err when It Refused to Suppress the Form I-213 as Obtained in Violation of the Fourth Amendment. Batres contends that he is entitled to a suppression hearing to determine
whether the officers violated the Fourth Amendment and whether the evidence of
his alienage in the Form I-213 should be excluded as a consequence. He contends
that his declaration established a prima facie case that the officers egregiously
violated the Fourth Amendment because they conducted a search of his home
before dawn and without consent. He also contends that we should hold that any
violation of the Fourth Amendment leads to the exclusion of evidence in removal
proceedings. We reject these arguments.
Ordinarily, evidence obtained in violation of the Fourth Amendment is
admissible in civil immigration proceedings, Immigration & Naturalization Serv.
v. Lopez-Mendoza, 468 U.S. 1032, 1034 (1984), but four justices suggested, and
other circuits have held, that there may be an exception to this rule for “egregious
violations of Fourth Amendment or other liberties that might transgress notions of
fundamental fairness and undermine the probative value of the evidence obtained,
id. at 1050–51 (opinion of O’Connor, J.); see also, e.g., Yanez-Marquez v. Lynch,
789 F.3d 434, 449–50 (4th Cir. 2015) (collecting citations); Cotzojay v. Holder,
725 F.3d 172, 179–80 (2d Cir. 2013). We have not addressed the question whether
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evidence of alienage obtained from an egregious violation of the Fourth
Amendment must be excluded from removal proceedings, and we need not decide
it now because Batres failed to make a prima facie showing of an egregious
violation of the Fourth Amendment.
Batres’s declaration failed to establish an “egregious violation of Fourth
Amendment . . . liberties that might transgress notions of fundamental fairness and
undermine the probative value of the evidence obtained.” Lopez-Mendoza, 468
U.S. at 1050–51 (opinion of O’Connor, J.). He contends that the officers
egregiously violated the Fourth Amendment primarily because they entered his
home at 5:30 a.m. without consent. But as explained earlier, the immigration judge
and the Board were entitled to find that the officers received consent from Batres’s
sister-in-law to enter the apartment. Because he failed to make a prima facie case
that the officers lacked consent to enter the apartment, Batres cannot establish that
the officers egregiously violated the Fourth Amendment. Indeed, the Second
Circuit, in a decision on which Batres heavily relies, underscored that whether
officers obtained consent to enter a home is critical to determining whether officers
egregiously violated the Fourth Amendment. See Cotzojay, 725 F.3d at 183. That
circuit explained that its “assum[ption] that . . . [the] officers did not secure
voluntary consent to enter the [petitioner’s] home . . . effect[ed] the basic Fourth
Amendment violation that must underlie any egregious violation,” before it
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identified “certain aspects of the raid as alleged by [the petitioner] [that]
transform[ed] th[at] [assumed] constitutional transgression . . . into an egregious
Fourth Amendment violation.” Id.
We also reject Batres’s argument that Lopez-Mendoza no longer binds us
and that whenever evidence is obtained in a violation of the Fourth Amendment,
egregious or otherwise, it should be excluded. He contends that we should “[t]ak[e]
into account the changes that have occurred in immigration enforcement since
Lopez-Mendoza” and reweigh the balance that the Supreme Court struck then. But
the Supreme Court has instructed us to “follow the case which directly controls,
leaving to [it] the prerogative of overruling its own decisions.” Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). “Lower courts are
bound even by old and crumbling high-court precedent—until the high court itself
changes direction.” Bryan A. Garner, et al., The Law of Judicial Precedent 29
(2016). We continue to be bound by the holding of the Court in Lopez-Mendoza
that evidence obtained in violation of the Fourth Amendment is ordinarily
admissible in civil immigration proceedings.
C. The Admission of the Form I-213 Did Not Violate the Due Process Clause of the Fifth Amendment. Batres contends that the Form I-213 should be suppressed because the
officers “created a coercive environment that led to . . . Batres involuntarily
providing information about his alienage” in violation of the Due Process Clause
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of the Fifth Amendment. He relies on a decision of the First Circuit, where the
court held that “the use of [an involuntary] statement [of a petitioner] was a
violation of her due process rights as guaranteed by the Fifth Amendment.” Navia-
Duran v. Immigration & Naturalization Serv., 568 F.2d 803, 808 (1st Cir. 1977).
We disagree.
Batres has failed to establish that he was coerced into providing evidence of
his alienage. We reject his argument that the facts described in his declaration are
more coercive than the facts described in Navia-Duran. Batres contends that we
should “tak[e] into account the time of day, the length of time that the interrogation
lasted, and the officers’ threats or ‘predictions’ of [his] fate.” But even if we were
to assume that these factors present in Navia-Duran supplied the governing
standard in our circuit, only one of them cuts in his favor. Although the officers
arrived before dawn, Batres was questioned for only about 30 to 45 minutes, and
nothing in the record establishes that the officers threatened Batres or predicted his
fate.
D. The Board Did Not Err when It Refused to Suppress the Form I-213 as Obtained in Violation of Federal Regulations.
Batres argues that his removal proceedings should have been terminated
because the officers violated three regulations, 8 C.F.R. § 287.8(b)(2), (c)(2)(vii),
& (f)(2), and he contends that these violations caused him substantial prejudice.
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We cannot consider Batres’s argument that the officers violated section
287.8(f)(2), which requires officers to obtain a warrant or consent before they enter
a home. Batres failed to raise this argument before the Board, and “we lack
jurisdiction to consider claims that have not been raised” there. Amaya-Artunduaga
v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (citation and internal
quotation marks omitted).
We reject Batres’s arguments that his proceedings should have been
terminated because the officers allegedly violated two other regulations, sections
287.8(b)(2), which permits officers to “briefly detain” a person based on a
reasonable suspicion that a person is illegally present in the United States, and
287.8(c)(2)(vii), which prohibits “[t]he use of threats, coercion, or physical abuse
by the designated immigration officer to induce a suspect . . . to make a
statement . . . .” To be sure, the Board has concluded that when “a rule or
regulation [has been] promulgated at least in part to bestow a procedural or
substantive benefit on the individual” and is violated, Matter of Garcia-Flores, 17
I. & N. Dec. 325, 329 (BIA 1980), the violation “will . . . render subsequent
agency actions invalid,” id. at 328, when the violation caused prejudice to the
individual, id. at 329. But section 287.12 states that the regulations in part 287 only
“provide internal guidance on specific areas of law enforcement authority” and “do
not, are not intended to, shall not be construed to, and may not be relied upon to
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create any rights, substantive or procedural, enforceable at law by any party in any
matter, civil or criminal.” 8 C.F.R. § 287.12. So neither section 287.8(b)(2) nor
section 287.8(c)(2)(vii) creates a right that Batres could enforce through
suppression of evidence in his removal proceeding.
IV. CONCLUSION
We DENY in part and DISMISS in part Batres’s petition.
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MARTIN, Circuit Judge, concurring in the judgment:
I concur in the denial and dismissal of Mr. Batres’s petition by the majority.
I write separately to state my view that, as a rule, evidence obtained through
egregious violations of constitutional rights may properly be suppressed in removal
proceedings.
In INS v. Lopez-Mendoza, eight justices of the U.S. Supreme Court
suggested that evidence obtained through egregious violations of constitutional
rights should be excluded in removal proceedings. See 468 U.S. 1032, 1034 n.aa1,
1050–51, 104 S. Ct. 3479, 3489; see also id. at 1051–52, 104 S. Ct. at 3490
(Brennan, J., dissenting); id. at 1060, 104 S. Ct. at 3494 (White, J., dissenting); id.
at 1060–61, 104 S. Ct. at 3494–95 (Marshall, J., dissenting); id. at 1061, 104 S. Ct.
at 3495 (Stevens, J., dissenting).1 A number of our sister Circuits have reached the
same conclusion about Lopez-Mendoza. Yanez-Marquez v. Lynch, 789 F.3d 434,
449–50 (4th Cir. 2015); Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 271–72 (3d Cir.
2012); Puc-Ruiz v. Holder, 629 F.3d 771, 778 n.2 (8th Cir. 2010); Gonzalez-
Rivera v. INS., 22 F.3d 1441, 1448 n.2 (9th Cir. 1994).
It is true that the Supreme Court’s statement about egregious rights
violations is dicta, but “[w]e have consistently recognized that dicta from the
1 The majority says only four justices subscribed to this notion. Maj. Op. at 11. True, four justices in the majority expressed this view. However, all four dissenters would have applied the standard exclusionary rule to removal proceedings. Case: 16-16117 Date Filed: 08/23/2018 Page: 17 of 17
Supreme Court is not something to be lightly cast aside.” F.E.B. Corp. v. United
States, 818 F.3d 681, 690 n.10 (11th Cir. 2016) (quotation omitted). In fact,
Supreme Court dicta is “of considerable persuasive value.” Id. (quotation
omitted).
It is also noteworthy that no one involved in this litigation—neither the U.S.
Attorney General, nor the Board of Immigration Appeals, nor the Immigration
Judge—suggested the exclusionary rule is not available as a remedy in removal
proceedings for egregious violations of constitutional rights.
The predawn arrival of Deportation Officers from the Broward County
Fugitive Squad Operations Unit at the house where Mr. Batres was staying, when
they were looking for another man, was no doubt frightening and unpleasant for
Mr. Batres and his brother’s family. However, applying the highly deferential
standard by which we must review these things, I agree with the majority that the
evidence obtained by those officers that morning is not subject to being
suppressed.