In the early morning hours of March 5, 2007, Petitioner Pedro Estanislado Pretzantzin ("Estanislado Pretzantzin") awoke to a loud banging; he opened his third-floor bedroom window to see a group of armed, uniformed officers at his apartment building's front door in Jamaica, New York.
After confirming that he lived on the third floor, one of the officers led Estanislado Pretzantzin back upstairs and ordered him to allow the other officers inside. At no point during the encounter did the officers explain their presence, present a warrant, or request consent to enter the apartment. Once inside, ICE officers rounded up the remaining Petitioners, who were asleep in their beds, assembled them in the living room, and demanded to see their "papers." It appears that only Pacheco-Lopez — the sole Petitioner who had a passport — was able to comply with the officers' directive. The officers did not ask Estanislado Pretzantzin whether he had legal status in the United States before arresting him.
All Petitioners were handcuffed and transported to ICE facilities at 26 Federal Plaza, in New York City, where they were notified for the first time that they were in the custody of immigration officials. ICE officers interviewed Petitioners and told them to sign statements that were not read to them in English (which Petitioners speak minimally if at all); these statements were subsequently memorialized on Form I-213s (Record of Deportable/Inadmissible Alien). Petitioners were released from custody later that afternoon and served with Notices to Appear, charging them with removability under Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as natives and citizens of Guatemala who had entered the United States without inspection.
Following consolidation of their proceedings, Petitioners appeared before Immigration Judge George T. Chew (the "IJ") and conceded that they were the individuals named in the Notices to Appear, but denied the charges of removability and moved to suppress the evidence against them and terminate their proceedings. Petitioners argued that they were entitled to the suppression of all statements and evidence obtained as a consequence of the nighttime, warrantless raid of their home under the Fourth and Fifth Amendments. In opposition, the Government argued, inter alia, that it possessed independent evidence of Petitioners' alienage. Specifically, the Government claimed that it had obtained Petitioners' Guatemalan birth certificates from the United States Embassy in Guatemala using Petitioners' names,
The Government ostensibly relied on the admission in Petitioners' motion to suppress (indicating that Petitioners were related) and Pacheco-Lopez's arrest records (confirming that he was born in Guatemala) to target the United States Embassy in Guatemala for the birth certificate request. In connection with Petitioners' birth certificates, the Government proffered a Federal Express delivery record label for a package sent from ICE's facilities at 26 Federal Plaza to the United States Embassy in Guatemala, but it did not submit a copy of the actual birth certificate request or any other evidence bearing on the package's contents. Following Petitioners' testimony at a subsequent suppression hearing,
In June 2008, the IJ granted Petitioners' motion to suppress the Government's evidence of alienage and terminate the proceedings, finding that the nighttime, warrantless entry into their home and resulting arrests constituted an egregious violation of Petitioners' Fourth and Fifth Amendment rights. Having found Petitioners' testimony and supporting affidavits sufficient to establish a prima facie case for suppression, the IJ reasoned that the Government's failure to offer any justification for the conduct of its agents resolved the issue in Petitioners' favor. The IJ also rejected the Government's contention that Petitioners' birth certificates and Pacheco-Lopez's arrest records constituted independent evidence of alienage, finding that this evidence could only have been obtained through the use of evidence illegally procured as a result of the raid of Petitioners' home, namely, Pacheco-Lopez's passport and Petitioners' statements.
The Government appealed. In a December 17, 2010 order, the BIA vacated the IJ's decision. In re Jose Matias Pretzantizin, et al., Nos. A097 535 298/296/297/299/300/301 (B.I.A. Dec. 17, 2010). Relying on INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), for the proposition that identity is never suppressible as the fruit of an unlawful arrest, the BIA found that it need not determine whether Petitioners suffered an egregious violation of their constitutional rights because their birth certificates and Pacheco-Lopez's arrest records were obtained after the Government had determined their identities. The BIA explained that Petitioners' birth certificates were obtained from Guatemalan authorities using Petitioners' insuppressible identities; the BIA offered no similar justification for the independence of Pacheco-Lopez's arrest records. Lastly, although the Government had expressly declined to rely on Petitioners' Form I-213s before the IJ, the BIA found this evidence admissible because Petitioners had not argued that their statements were "untrue or unreliable." In re Pretzantizin, A097 535 298, at 2.
"The general rule in a criminal proceeding is that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the evidence and the unlawful conduct is not too attenuated." Lopez-Mendoza, 468 U.S. at 1040-41, 104 S.Ct. 3479 (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). "[T]he exclusionary sanction applies to any `fruits' of a constitutional violation — whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention." United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) (internal citations omitted). Outside of the criminal context, however, the applicability of the exclusionary rule becomes less certain. Lopez-Mendoza, 468 U.S. at 1041, 104 S.Ct. 3479.
In Lopez-Mendoza, the Supreme Court held that a Fourth Amendment violation does not, standing alone, justify the suppression of evidence in the course of a civil deportation proceeding, id. at 1050, 104 S.Ct. 3479; this Court has since interpreted Lopez-Mendoza to allow suppression following an egregious violation, see Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir.2006). Today, as discussed in a companion case argued in tandem with the case at bar, Doroteo Sicajau Cotzojay v. Holder, 725 F.3d 172, 179 (2d Cir.2013), we confirm what the BIA and other courts have already recognized: A nighttime, warrantless raid of a person's home by government officials may, and frequently will, constitute an egregious violation of the Fourth Amendment requiring the application of the exclusionary rule in a civil deportation hearing. See Matter of Guevara-Mata, No. A097 535 291 (B.I.A. June 14, 2011);
In the instant case, the BIA did not reach the question of whether there was an egregious violation of the Fourth Amendment, but instead predicated its reversal of the IJ's grant of suppression on a finding that Petitioners' birth certificates and Pacheco-Lopez's arrest records were independently obtained through the use of only their names. To reach this result, the BIA relied on Lopez-Mendoza's statement that "[t]he `body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest," 468 U.S. at 1039, 104 S.Ct. 3479 ("Lopez-Mendoza's identity statement"). The task then is to discern the meaning of this statement that "has bedeviled and divided our sister circuits." United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir.2007).
The jurisdictional nature of Lopez-Mendoza's identity statement is evidenced by both the context in which it was made and the authority upon which it relied. In Lopez-Mendoza, the Supreme Court reviewed challenges in two civil deportation proceedings, each of which were commenced following unlawful arrests. 468 U.S. at 1034, 104 S.Ct. 3479. In the first proceeding, respondent Adan Lopez-Mendoza did not seek suppression of any specific piece of evidence and, instead, "objected only to the fact that he had been summoned to a deportation hearing following an unlawful arrest." Id. at 1040, 104 S.Ct. 3479. The Supreme Court easily dispensed with Lopez-Mendoza's challenge to the validity of the proceedings against him because "[t]he mere fact of an illegal arrest has no bearing on a subsequent deportation proceeding." Id. (alteration in original and internal quotation marks omitted). It was in this context that the Supreme Court stated that "[t]he `body' or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Id. at 1039, 104 S.Ct. 3479 (citations omitted).
In the second proceeding, respondent Elias Sandoval-Sanchez moved to suppress his Form I-213 (Record of Deportable/Inadmissible Alien), which memorialized incriminating post-arrest statements relating to his immigration status and place of birth. Id. at 1037-38, 1040, 104 S.Ct. 3479; Lopez-Mendoza v. INS, 705 F.2d 1059, 1062 (9th Cir.1983), rev'd, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). The Court observed that Sandoval-Sanchez had "a more substantial claim" because "[h]e objected not to his compelled presence at a deportation proceeding, but to evidence offered at that proceeding." 468 U.S. at 1040, 104 S.Ct. 3479. Accordingly, the Court considered whether the exclusionary rule should apply to prohibit the Government from using illegally obtained evidence of Sandoval-Sanchez's alienage against him in deportation proceedings. Id. at 1040-41, 104 S.Ct. 3479. The Court ultimately found the exclusionary rule inapplicable in Sandoval-Sanchez's case after weighing the likely social benefits and costs pursuant to the framework established in United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Lopez-Mendoza, 468 U.S. at 1050, 104 S.Ct. 3479.
The Court's differing treatment of Lopez-Mendoza's personal jurisdiction challenge and Sandoval-Sanchez's evidentiary challenge, and the corresponding omission of any identity-related considerations from the evaluation of the latter claim, show that Lopez-Mendoza's identity statement merely confirmed the jurisdictional rule that an unlawful arrest has no bearing on the validity of a subsequent proceeding; the Court did not announce a
The jurisdictional nature of Lopez-Mendoza's identity statement is further evidenced by the authorities it employed, which relate to the long-standing Ker-Frisbie doctrine — providing that an illegal arrest does not divest the trial court of jurisdiction over the defendant or otherwise preclude trial. See id. at 1039-40, 104 S.Ct. 3479 (citing, inter alia, Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541 (1952) and Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975)); see also Olivares-Rangel, 458 F.3d at 1110-11 (recognizing Lopez-Mendoza's identity statement as an application of the Ker-Frisbie doctrine); accord Oscar-Torres, 507 F.3d at 228-29. In Ker v. Illinois, the Supreme Court first considered the effect of an unlawful taking of custody on the validity of a subsequent proceeding; the Court concluded that due process was not violated when a defendant was kidnapped in Peru and forcibly returned to Illinois to stand trial. 119 U.S. 436, 438-40, 7 S.Ct. 225, 30 L.Ed. 421 (1886). Due process did not restrict the methods employed to bring the defendant before the court; it governed what happened once he was there. The Court reasoned that due process "is complied with when the party is regularly indicted by the proper grand jury in the state court, has a trial according to the forms and modes prescribed for such trials, and when, in that trial and proceedings, he is deprived of no rights to which he is lawfully entitled." Id. at 440, 7 S.Ct. 225.
More than sixty years later, in Frisbie, the Supreme Court refused to depart from Ker when faced with a due process challenge by a defendant who was abducted in Illinois and taken to Michigan for trial, noting that "[t]here is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will." 342 U.S. at 522, 72 S.Ct. 509; see also Gerstein, 420 U.S. at 119, 95 S.Ct. 854 (declining to "retreat from the established rule that illegal arrest or detention does not void a subsequent conviction"). Lopez-Mendoza's reliance on the Ker-Frisbie line of authority in support of its identity statement leaves no doubt that the Court was referencing the long-standing jurisdictional rule that an unlawful arrest has no bearing on the validity of a subsequent proceeding rather than announcing a new rule insulating all identity-related evidence from suppression.
Contemporary case law confirms our view. A jurisdictional reading of Lopez-Mendoza's identity statement is compelled by the Supreme Court's recent decision in Maryland v. King, ___ U.S. ___, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013).
Still, we find King's description of identity-related evidence telling. In finding that "name alone cannot address [the government's] interest in identity," the Court noted that other relevant forms of identification include fingerprints, "name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or [DNA] profile." Id. at 1972. This broad concept of "identity," when read in conjunction with the Government's proffered interpretation of Lopez-Mendoza's identity statement as precluding the suppression of all identity-related evidence, would render the inventory or booking search exception to the Fourth Amendment's warrant requirement superfluous. After all, if DNA is identity-related evidence, and Lopez-Mendoza precludes the suppression of all identity-related evidence, then why bother to couch Maryland's DNA Collection Act
Although Lopez-Mendoza's identity statement merely confirmed a long-standing rule of personal jurisdiction, that does not resolve the matter. Lopez-Mendoza's jurisdictional rule has unavoidable, practical evidentiary consequences.
The obvious element of identity that falls within this category is one's name. In this case, Petitioners freely concede that they are the individuals charged in the Notices to Appear and they do not argue that their names should be suppressed following an egregious Fourth Amendment violation.
The BIA determined that Petitioners' birth certificates constituted independent evidence of alienage because they were obtained solely through the use of Petitioners' insuppressible identities. In assessing whether evidence was independently obtained, we must determine "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun, 371 U.S. at 488, 83 S.Ct. 407 (internal quotation marks omitted). And where, as here, Petitioners have established a prima facie case for suppression, the Government must "assume the burden of justifying the manner in which it obtained the evidence." Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A.1988) (internal quotation marks omitted).
The Government maintained before the agency and at oral argument that ICE procured Petitioners' birth certificates using only their names. But the arguments of counsel are not evidence, Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503, 506 (B.I.A.1980), and the Government failed to make any evidentiary proffer demonstrating the basis for Petitioners' birth certificate request. Moreover, we note that the Government's claim that the request was based on names alone was dubiously supported by only a Federal Express package label, but not by the actual letter ICE sent to the United States Embassy in Guatemala. In addition, the Government's post-argument Rule 28(j) Letter stating that "it was proper for the government to use aspects of [Petitioners'] identity other than simply their names — such as birth date and even place of birth — to obtain their Guatemalan birth certificates," would appear to further undermine the Government's contention. Given that the record before the IJ contained no evidence documenting the basis for Petitioners' birth certificate request, we find that the BIA erred by concluding that the Government had met its burden of establishing that Petitioners' birth certificates constituted independent evidence of alienage. See Wong Sun, 371 U.S. at 488, 83 S.Ct. 407; Barcenas, 19 I. & N. Dec. at 611.
The Government argues that it already possessed independent evidence of Pacheco-Lopez's alienage prior to any constitutional violation, in the form of his arrest records that were merely linked to him using his name, but the record is equally silent concerning the procurement of those records. The Government relies on Reyes-Basurto v. Holder, a non-precedential summary order in which we previously affirmed the denial of a motion to suppress evidence on this linkage rationale. See 477 Fed.Appx. 788, 789 (2d Cir. 2012). In Reyes-Basurto, the petitioner sought to suppress his Border Patrol records and a Form I-140 (Petition For Alien Worker) that were necessarily already in the possession of immigration officials. See id. at 789. In affirming the denial of suppression, we reasoned that Reyes-Basurto's pre-existing immigration records made him "a `suspect' in regards to removability even before his [illegal] arrest." Id. at 789 (analogizing to Crews, 445 U.S. at 476, 100 S.Ct. 1244, in which the Court declined to suppress an in-court witness identification because "the robbery investigation had already focused on [Crews], and the police had independent reasonable grounds to suspect his culpability" prior to any Fourth Amendment violation).
For the foregoing reasons, the decision of the Board of Immigration Appeals is hereby VACATED and REMANDED. Because the BIA declined to answer the question of whether Petitioners sustained an egregious Fourth Amendment violation, we do not reach this issue. However, we note that fact-finding with respect to the circumstances under which ICE officers entered Petitioners' home and seized Petitioners has been completed. The Government had an opportunity to respond to Petitioners' prima facie case for suppression and explicitly chose not to. Likewise, the Government had an opportunity to submit proof showing exactly how it obtained Pacheco-Lopez's arrest records and Petitioners' birth certificates. The Government failed to do so; the evidence proffered is inadequate to support the Government's claim that it relied on Petitioners' names alone in securing their birth certificates from the United States Embassy in Guatemala.
Accordingly, we remand this case for the BIA to reach the issue of whether Government agents seized evidence of alienage from Petitioners in the course of committing an egregious Fourth Amendment violation. Should any questions over the nature of the constitutional violation linger, we direct the agency to the opinion issued in a companion case also decided today, in which we were persuaded that the facts as alleged by the alien and similar to those in this case portrayed an egregious Fourth Amendment violation. See Doroteo Sicajau Cotzojay v. Holder, 725 F.3d 172, 184 (2d Cir.2013).
Regardless, we would deem the pedigree exception to be inapplicable; it is focused on protecting "basic information needed to facilitate the booking and arraigning of a suspect" from suppression as a result of a Miranda violation following a valid arrest. United States v. Carmona, 873 F.2d 569, 573 (2d Cir.1989) (citing United States v. Gotchis, 803 F.2d 74, 78-79 (2d Cir.1986) and United States ex rel. Hines v. La Vallee, 521 F.2d 1109, 1112-13 (2d Cir.1975)). The concerns inherent within the pedigree exception to Miranda violations — supplying incriminating but identifying information without being warned of the consequences — do not line up well with the circumstances of Petitioners' constitutional claim that they were seized in their home without consent and without probable cause. There is no reason to consider engrafting an exception to the protections of the Fifth Amendment onto Petitioners' Fourth Amendment claims.