McKEE, Chief Judge.
Erick Oliva-Ramos petitions for review of an order of the Board of Immigration Appeals affirming an Immigration Judge's order removing him to Guatemala. He also seeks review of the BIA's denial of his motion to supplement the record and to reopen his removal proceeding before an Immigration Judge.
At 4:30 a.m. on March 26, 2007, a team of armed, uniformed ICE officers repeatedly rang the entrance "buzzer" to the
According to the affidavit that was introduced at Oliva-Ramos's removal hearing, Clara heard the incessant buzzing, but could not tell who was ringing the bell because the intercom was broken.
As the officers approached the front door of the apartment, they waived an administrative warrant for Oliva-Ramos's other sister, Maria. Clara later stated that she realized that the people coming up the stairs were ICE agents when they said they had an order to arrest Maria. The officers had no information about the identity or legal status of any of the other occupants of the apartment. Before entering the apartment, the officers asked Clara for her name and immigration status, and she informed them that she was a legal permanent resident. The officers then asked if Clara lived in the apartment and asked permission to enter. In her affidavit, Clara explained that she did not deny entry even though Maria was not there because she (Clara) believed that she could not refuse and that the order to arrest Maria gave the officers the right to enter even in Maria's absence.
At some point during the exchange with the officers, Clara lost her foothold on the open door and it slammed shut, leaving her outside the apartment. Her son let her in, however, after she banged on the door. As she entered, the officers lined up behind her and followed her inside. Once inside, they began waking the occupants and ordering them into the living room while another agent blocked the door so that no one could leave.
According to Oliva-Ramos's affidavit and testimony before the IJ, Clara knocked on his bedroom door and told him that immigration officers were there. Oliva-Ramos shared his bedroom with his sister, Wendy, and her husband. Oliva-Ramos was sleeping, but Wendy opened the bedroom door.
An armed officer in a green ICE uniform shone a flashlight into the room and ordered everyone to move to the living room. Oliva-Ramos was in his pajamas but was permitted to get dressed under the supervision of an ICE officer. He testified that "there was no way [he] could have left" the presence of the officers.
The officer then directed Oliva-Ramos to the living room and told him to sit down. In addition, Oliva-Ramos testified that the officer did not identify himself, show him a
After everyone was escorted to the living room, five or six armed ICE officers began questioning everyone about Maria. During that questioning, the officers blocked each entrance to the living room. Oliva-Ramos testified that he heard an officer tell Clara to sit down when she tried to stand. He also said he heard the officer tell her that if she did not sit, she could be arrested. The officers asked about the identities and nationalities of all of the apartment occupants. Clara's son, Wagner, initially refused to answer questions, but relented when the officers ordered him to speak and told him he could not refuse to answer them.
The officers did not ask Oliva-Ramos any questions in the living room but ordered him back to his bedroom to retrieve his identification documents. An officer followed Oliva-Ramos to the bedroom as he retrieved his identification and escorted him back to the living room. Oliva-Ramos stated that he went to retrieve his documents because he thought that, if he did not go, he could be arrested because he did not have papers. He also thought that if he showed his Guatemalan identification to the officer, nothing would happen. The documents he retrieved revealed that he is a citizen of Guatemala; he was unable to produce any documentation demonstrating that he was lawfully present in the United States.
The encounter lasted approximately forty-five minutes. During that time, Oliva-Ramos and his family were prevented from eating, drinking, or speaking out of turn. According to Clara's affidavit, her sister (Wendy) began menstruating while the family was in the living room, but Clara was not allowed to get any feminine hygiene products for her. According to Oliva-Ramos's affidavit, although Wendy and Oliva-Ramos were eventually allowed to use the bathroom, they had to leave the door open while an ICE officer stood outside the door, thus denying them the most rudimentary considerations of privacy.
Clara was able to document that she was legally in the United States. All others were eventually handcuffed, placed in an ICE van and driven around while the officers made several more raids. At each stop, the agents followed a similar pattern of knocking on doors and making general inquiries about the legal status of all of the occupants in a residence. These stops resulted in two more individuals being placed in the van.
At around 7:00 a.m., Oliva-Ramos and his family arrived at the ICE office, where they were placed in a detention room containing an open toilet. Oliva-Ramos testified that there he was told to fill out papers written in Spanish, and he was given the option of signing them. He had to wait until the afternoon before he was questioned.
During the ensuing removal proceedings, Oliva-Ramos testified on his own behalf with the assistance of a Spanish interpreter. He was cross-examined about the raid, his arrest, and his examination at the ICE office. He also presented the supporting affidavits of Clara, Wagner, and Marvin, although they were not present in court to testify.
The Government presented only one witness, the arresting and interviewing ICE officer, Marlene Belluardo. Officer Belluardo testified that she had taken part in "hundreds" of home raids since participating in the raid at Oliva-Ramos's apartment on March 26, 2007, but had no independent recollection of the raid that led to Oliva-Ramos's detention. Officer Belluardo stated that she does not remember anything about the apprehension, but acknowledged her participation based upon having filled out Form I-213, the Record of Deportable/Inadmissible Alien, which listed her as an arresting officer.
Belluardo also testified about the standard protocol for fugitive operations. She said that when she goes to a home with a warrant, it is a "knock warrant," which is an administrative warrant. Someone has to respond to her knock on the door and grant permission to enter, as an officer is only permitted to enter with permission. Officer Belluardo confirmed that there was no warrant for Oliva-Ramos but only a deportation warrant for Maria. Belluardo testified that it is standard protocol to get everyone in the house to a central location so that the officers can identify the subject and anyone else in the house. In addition, she testified that everyone is brought into the living room as a central area of safety for everyone in the house. Each person is asked his or her identity, and any person found to be in the United States without documents or with questionable documents is taken into custody. Finally, Officer Belluardo testified that, when apprehending a suspect, questions asked are usually just to identify the person and that no other questions are asked until they are taken into custody and transported to the processing area.
The Government also presented the following four documents to support its charge of removability: Form I-213, the Record of Deportable/Inadmissible Alien; Form I-215B, the affidavit of Erick Oliva-Ramos; the face page of a Guatemalan passport; and a Guatemalan consular identification card. Oliva-Ramos objected to that evidence and moved to preclude consideration of all of the Government's evidence obtained during the raid of his apartment and his subsequent arrest. He argued that the evidence had been obtained by exploiting violations of the Fourth Amendment that were both egregious and widespread, and thus the exclusionary rule should apply. He also moved to terminate the proceedings, and requested an evidentiary hearing on his suppression motion.
In rejecting Oliva-Ramos's argument that the Government had entered his home without valid consent in violation of 8 C.F.R. § 287.8(f)(2) (2008), the IJ relied on the Government's assertion that "consent was obtained prior to immigration officers entering the Respondent's residence from a `person in control of the site to be inspected,' namely, the Respondent's sister, Clara Oliva."
Oliva-Ramos also sought to subpoena testimony of the additional ICE officers who were involved in his seizure as well as certain documents that the Government had not produced pursuant to Oliva-Ramos's Freedom of Information Act request ("FOIA").
At a later hearing on removability, the IJ found Oliva-Ramos removable as charged but granted his request for voluntary departure. Oliva-Ramos then appealed to the Board of Immigration Appeals.
The BIA first considered Oliva-Ramos's Fourth Amendment claim that the Government had obtained evidence of alienage without proper consent through coercion and duress during the raid of his home. The BIA declined to address the claim as presented and cited to Lopez-Mendoza, explaining that "the Fourth Amendment exclusionary rule is generally not applicable in civil removal proceedings." In a lengthy footnote, the BIA acknowledged the following language in Lopez-Mendoza on which Oliva-Ramos based his Fourth Amendment claim:
The BIA also acknowledged that its precedential decisions "have provided for the
The BIA found that the Government had satisfied its initial burden of establishing alienage through the evidence that Oliva-Ramos sought to suppress, including the Form I-213 and Form I-215B, as well as his Guatemalan passport and identification card. The BIA also concluded that Oliva-Ramos had not rebutted that evidence prior to receiving a grant of voluntary departure. The BIA did not believe that any regulatory violations altered the outcome because the documents the Government presented "[were] inherently reliable and were not shown to have been created under impermissible coercion and duress."
The BIA then considered Oliva-Ramos's challenges to certain administrative regulations governing ICE conduct. First, it considered Oliva-Ramos's coercion claim that the Government impermissibly threatened and coerced him when it inspected the non-public, interior areas of his residence, in violation of 8 C.F.R. § 287.8(f)(2).
Second, Oliva-Ramos claimed that the Government had violated 8 C.F.R. § 287.8(b)(1) by impermissibly restraining his freedom through threats and coercion during the inspection and investigation of his home. However, the BIA reasoned that INA § 287(a)(1), the statute under which § 287.8(b)(1) was promulgated, permits warrantless interrogation if ICE officers reasonably believe that a person may be unlawfully in the United States. The BIA concluded that requirement was satisfied once Oliva-Ramos presented his Guatemalan passport and identification. The BIA also relied on Oliva-Ramos's own testimony before the IJ that he had no intention of leaving the apartment because he "didn't commit any crime." During the hearing before the IJ, he had been asked: "[W]hat would have happened if you'd asked the officers to leave?" He responded, "I couldn't tell the officers to leave because it's the law and I didn't have anything to tell them."
Third, Oliva-Ramos argued that the Government violated 8 C.F.R. § 287.8(c)(2)(i) when it arrested him without first obtaining a warrant. The BIA rejected that claim because INA § 287(a)(2) specifically authorizes warrantless arrests where ICE officers have reason to believe that someone is here in the United States illegally and poses a risk of flight if not detained. See also 8 C.F.R. § 287.8(c)(2)(ii). The I-213 stated: "A field interview revealed that the subject
The BIA also rejected Oliva-Ramos's claims that regulatory violations that did not implicate the Fourth Amendment entitled him to relief. The BIA did not believe that Oliva-Ramos had established a violation of 8 C.F.R. §§ 287.3(c) or 292.5(b) because he had been properly advised as required before formal removal proceedings were initiated.
The BIA similarly rejected Oliva-Ramos's final regulatory claim that DHS had violated 8 C.F.R. § 287.8(d)(1) when it left him and his fellow detainees locked and unattended in a van several times during a two-hour period while transporting them to the detention facility.
The BIA then turned its attention to two allegations of misconduct by the IJ. First, it considered Oliva-Ramos's allegation that a translator had improperly translated the Spanish word "arma" into the English word "arm" in the sense of a body part as opposed to an armament or firearm. The BIA found no due process violation because it concluded that "the word was
Finally, the BIA considered a motion to remand the proceedings to the Immigration Judge to consider new evidence that was not presented to the IJ. On February 18, 2009, while his appeal was pending before the BIA, Oliva-Ramos moved to present previously unavailable evidence of alleged widespread Fourth Amendment violations by ICE officials.
The ICE memorandum dated September 29, 2006 changed the agency's policy with respect to achieving an arrest target of 1,000 "fugitive aliens" per Fugitive Operations Team ("FOT") as previously established in an ICE memorandum dated January 31, 2006. The January memorandum had specified that "collateral arrests" would not be counted toward the goal of 1,000 arrests. The September memorandum changed the policy to permit up to fifty percent of each team's arrest goal to be satisfied by counting "collateral arrests." These are arrests of persons who were not themselves the targets of the FOT and had not missed removal hearings or departure deadlines, but were discovered during ICE operations. In the following fiscal year, when Oliva-Ramos was detained by a FOT that was after someone
However, the Board reasoned that remand was unwarranted because the BIA was not bound by the Lopez-Mendoza plurality opinion. As noted above, in Lopez-Mendoza, the Court had recognized the possibility of the exclusionary rule applying to civil deportation proceedings based on widespread or egregious violations of the Fourth Amendment.
Thus, the BIA dismissed the appeal, denied Oliva-Ramos's motion to remand, and this petition for review followed.
The BIA issued its own opinion. We therefore review its decision rather than that of the IJ. Li v. Att'y. Gen., 400 F.3d 157, 162 (3d Cir.2005). Where the "BIA's opinion directly states that the BIA is deferring to the IJ, or invokes specific aspects of the IJ's analysis and factfinding in support of the BIA's conclusions," we review both the BIA and IJ decisions. Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.2005).
We review the BIA's denial of a motion to reopen for abuse of discretion. Luntungan v. Att'y Gen., 449 F.3d 551, 555 (3d Cir.2006). "Under the abuse of discretion standard, the Board's decision must be reversed if it is arbitrary, irrational, or contrary to law." Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002) (internal quotation marks omitted). We review the BIA's conclusions of law such as "whether the BIA applied the correct legal standard in considering the motion to reopen" and the underlying constitutional claims de novo. Fadiga v. Att'y Gen., 488 F.3d 142, 153-54 (3d Cir.2007).
We begin our analysis with a discussion of INS v. Lopez-Mendoza, as that case is central to our disposition of these petitions. We then proceed to consider, in turn, Oliva-Ramos's due process claims, Fourth Amendment claims, and claims predicated on various regulatory violations.
In INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), the Supreme Court held that the exclusionary rule generally does not apply to removal proceedings. The Court reached that conclusion after balancing the deterrent effect of the exclusionary rule against the social cost of extending its application to civil removal proceedings. However, a plurality of the Justices was careful to add the following qualifier to their discussion of that balancing:
In Lopez-Mendoza, two citizens of Mexico were ordered deported after separate immigration proceedings. INS agents arrested Lopez-Mendoza at his job without a warrant to search the jobsite or a warrant to arrest anyone there. After the shop owner refused to permit the agents to speak with his employees during work hours, they devised a scheme to distract the shop owner so that they could question his employees. While he was being questioned, Lopez-Mendoza told the agents that he was a citizen of Mexico, and that he had entered the United States without inspection by immigration authorities.
In the proceedings that followed, Lopez-Mendoza argued that statements he made pursuant to his warrantless arrest should not have been admitted in his deportation proceedings. The Court reasoned that officers who violated an arrestee's rights were already subject to civil liability, and that in civil deportation proceedings the exclusionary rule "`is unlikely to provide significant, much less substantial, additional deterrence.'" Id. at 1046, 104 S.Ct. 3479 (quoting United States v. Janis, 428 U.S. 433, 458, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)).
Nevertheless, as we quoted above, a plurality of the Court allowed for the possibility of suppression in the case of widespread or egregious violations of constitutional rights.
Thus, Lopez-Mendoza sanctions the application of the exclusionary rule in cases where constitutional violations by immigration officers are "widespread" or evidence has been obtained as a result of "egregious violations of Fourth Amendment or other 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, 104 S.Ct. 3479. With this rule in mind, we proceed to consider Oliva-Ramos's claims.
We first consider Oliva-Ramos's claims that the IJ violated his right to due process by failing to rule on his pending motions to subpoena witnesses and documents and by declining to correct translation errors. Oliva-Ramos also claims that the BIA denied him due process by declining to remand his case to the IJ to consider newly available evidence of egregious and/or widespread abuses.
We are, of course, aware of the very valid concern expressed in Lopez-Mendoza that "a deportation hearing is intended to provide a streamlined determination of eligibility to remain in this country...." Id. at 1039, 104 S.Ct. 3479. Nevertheless, removal proceedings must comport with basic notions of due process. Kamara v. Att'y Gen., 420 F.3d 202, 211 (3d Cir.2005). Accordingly, concerns for brevity, efficiency and expedience must not be used to justify denying an alien the right to produce witnesses where that request is appropriate and the witnesses' presence appears necessary to satisfy basic notions of due process. That is particularly true where the IJ's refusal to issue or enforce subpoenas is contrary to the very regulatory scheme governing the removal process.
Here, the IJ's refusal to grant the subpoenas is contrary to 8 C.F.R. § 1003.35(b). Under that regulation, "[a]n Immigration Judge may issue a subpoena upon his or her own volition or upon application of the Service or the alien." Id. at § 1003.35(b)(1). When a party applies for a subpoena, the movant must "state in writing or at the proceeding ... what he or she expects to prove by such witnesses or documentary evidence, and ... show affirmatively that he or she has made diligent effort, without success to produce the same." Id. at § 1003.35(b)(2). Although the regulation provides some discretion to an IJ, "[u]pon being satisfied that a witness will not appear and testify or produce documentary evidence and that the witness' evidence is essential, the Immigration Judge shall issue a subpoena." Id. at § 1003.35(b)(3) (emphasis added). Given the circumstances here, we believe that the IJ abused her discretion in determining that the witnesses and documents were not essential. Cf. Cuadras v. INS, 910 F.2d 567, 573 (9th Cir.1990) ("[T]he IJ is not required to issue the subpoena unless she is satisfied that the evidence is `essential.' 8 C.F.R. 287.4(a)(2)(ii)(C). Since the IJ did not rely on the BHRHA report, he did not abuse his discretion in determining that the witnesses and documents were not essential.").
Oliva-Ramos satisfied both requirements of the regulation. The requested witnesses and documents were essential to Oliva-Ramos's claim of egregious or widespread violations and alleged constitutional violations by the Government. ICE policy and practice manuals on search and seizure practices and its practices with respect to consent and entry of dwellings could have shed light on the contested nature of Clara Oliva's consent, as well as whether Oliva-Ramos was improperly seized. In addition, the testimony of additional officers who were present during the investigation and arrest of Oliva-Ramos could have been used to impeach the testimony of the Government's sole witness during the suppression hearing or to adduce additional facts that may have altered the analysis of alleged constitutional violations, including the nature of Clara's alleged consent. Not allowing Oliva-Ramos to introduce this testimony is particularly problematic here because the only witness who testified for the Government could not recall Oliva-Ramos's seizure or any facts related to it. Since the Government forced Oliva Ramos to litigate his FOIA request, it should have been clear to the IJ that, even though Oliva-Ramos had exercised diligence, he was not able to effectively present his case and that he was not attempting to delay or obfuscate the proceedings.
We recognize that "[o]ne who raises the claim questioning the legality of the evidence must come forward with proof establishing a prima facie case before the Service will be called on to assume the burden of justifying the manner in which it obtained the evidence." Matter of Barcenas, 19 I. & N. Dec. 609, 611 (1988). Oliva-Ramos attempted to meet his burden, but was thwarted by his inability to obtain the evidence and witnesses necessary to do so. Only after the briefing before the BIA did the Government turn over the documents that Oliva-Ramos had tried to subpoena.
As noted above, the Government had previously resisted that subpoena, and Oliva-Ramos appeared before the IJ without the benefit of those documents or the witnesses he had tried to subpoena. He was finally able to obtain the documentary evidence only after members of a clinical program at the Cardozo School of Law initiated FOIA litigation. The documents thus obtained were attached to his motion to reopen and were clearly relevant to his burden of establishing whether any abuses were widespread and/or egregious. Rather than tender a timely disclosure of such documents pursuant to the subpoena, the Government forced Oliva-Ramos to rely on a FOIA request to obtain documents that were in the exclusive custody and control of the Government and were clearly germane to his legal claims.
We do not suggest that the documents would have satisfied Oliva-Ramos's burden had the IJ or BIA reviewed them. We only note that the documents certainly appeared relevant to Oliva-Ramos's legal claims, and there is nothing to suggest that they were sought in bad faith or to delay the proceedings.
Because the Immigration Judge never ruled on Oliva-Ramos's motion to subpoena
We will, however, affirm the BIA's ruling that errors in the transcript and related questioning did not deny Oliva-Ramos the due process of law. Any such errors were clarified and the record demonstrates that Oliva-Ramos fully understood the questions asked of him during his interview with Officer Belluardo.
Inasmuch as we conclude the BIA abused its discretion in denying Oliva-Ramos's motion to reopen, we need not reach Oliva-Ramos's additional due process claims based on the conduct of the removal hearings.
We now address the heart of Oliva-Ramos's petition. Oliva-Ramos argues that the BIA misapplied Fourth Amendment law when evaluating his various Fourth Amendment claims. He claimed that the ICE agents failed to obtain proper consent to enter the apartment, that they arrested him without a warrant and without probable cause, and that they seized him without reasonable suspicion. Relying on Lopez-Mendoza, Oliva-Ramos contends that Fourth Amendment law provides for the suppression of evidence obtained as a result of these violations because they were egregious and/or widespread. According to Oliva-Ramos, the BIA erred in categorically rejecting all of Oliva-Ramos's Fourth Amendment arguments on the ground that the exclusionary rule does not apply in deportation proceedings, and thereby erred in failing to evaluate, first, whether ICE agents violated Oliva-Ramos's Fourth Amendment rights, and, second, whether those violations were egregious or widespread. We agree.
The BIA rejected Oliva-Ramos's reliance on Lopez-Mendoza because it regarded the "comments from a plurality of the Supreme Court [to be] obiter dictum." The BIA explained that the Court had not yet found circumstances sufficient to apply the exclusionary rule in removal proceedings, and the Board's "own precedents ... recognize no such exception to the inapplicability of the exclusionary rule premised on widespread Fourth Amendment violations." There are several flaws in the BIA's approach.
The BIA leapfrogged over the serious concerns it should have addressed under Lopez-Mendoza about the manner in which the evidence was obtained here. See Almeida-Amaral v. Gonzales, 461 F.3d 231, 234-35 (2d Cir.2006); United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th Cir.2005); Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir.1994); cf. United States v. Stabile, 633 F.3d 219, 243 (3d Cir.2011) ("Typically, the exclusionary rule requires that we suppress evidence obtained as a result of an illegal search.").
We must reject the BIA's reading of Lopez-Mendoza that would only permit suppression of evidence based on "fundamentally unfair" circumstances in violation of the due process clause of the Fifth Amendment. The BIA's analysis of Lopez-Mendoza views that opinion only as a plurality. In doing so, the BIA ignored the fact that almost all of the Justices on the Court agreed that the exclusionary rule should apply to some extent in removal hearings. As we explained above, eight of the nine Justices agreed with that proposition. Four would have limited the rule
Moreover, even if the pronouncement in Lopez-Mendoza was dicta as the BIA labeled it, Supreme Court dicta should not be so cavalierly cast aside. See Official Committee of Unsecured Creditors v. Chinery, 330 F.3d 548, 561 (3d Cir.2003) ("[W]e should not idly ignore considered statements the Supreme Court makes in dicta"); see also Wroblewska v. Holder, 656 F.3d 473, 478 (7th Cir.2011) ("The Supreme Court has required a showing of `egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness' before the exclusionary rule will apply in immigration proceedings. Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. 3479. It makes no difference that Wroblewska's argument is styled as a due-process argument rather than one based on the Fourth Amendment."). "Accordingly, it is reasonable to read Lopez-Mendoza as showing that eight Justices would have applied the exclusionary rule in circumstances where evidence was obtained through an `egregious' Fourth Amendment violation." Puc-Ruiz, 629 F.3d at 778 n. 2. The fact that the Court has not yet applied the rule in a deportation proceeding cannot undermine the fact that the Court has allowed for that possibility. The fact that the BIA believed its own precedents did not recognize the exception set out in Lopez-Mendoza can neither negate nor minimize the fact that the exception has been recognized by the Supreme Court.
Accordingly, we reiterate today that the exclusionary rule may apply in removal proceedings where an alien shows "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." Lopez-Mendoza, 468 U.S. at 1051, 104 S.Ct. 3479; see also United States v. Bowley, 435 F.3d 426, 430 (3d Cir.2006) ("The Court in Lopez-Mendoza was careful to qualify its broad statement by noting that it was not considering `egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.'").
The BIA therefore erred in concluding that the discussion in Lopez-Mendoza lacked the force of law, and the Board clearly failed to conduct the proper analysis to determine whether any such egregious violations occurred. The IJ and the Board should have, but did not, first determine whether agents violated Oliva-Ramos's Fourth Amendment rights and second, whether any such violations implicated the Lopez-Mendoza exception for being widespread or egregious. We will briefly note the possible merits of each prong of this argument against the circumstances here.
We have not had occasion to consider when conduct by ICE officials (or anyone acting in a similar role) would constitute the kind of egregious violations that could trigger the protections endemic in the exclusionary rule and justify applying the rule in the civil arena. We now take this opportunity to more precisely define the standard that should be used in determining whether unlawful conduct by governmental
In Lopez-Mendoza, the Supreme Court cited Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), as an example of "egregious violations of Fourth Amendment or other 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, 104 S.Ct. 3479. In Rochin, three deputy sheriffs forcibly entered a home and saw Rochin swallow some capsules which were believed to be a controlled substance. In order to recover that evidence, Rochin was taken to a hospital where a doctor induced vomiting at the direction of one of the officers by inserting a tube into Rochin's stomach and pumping a chemical into him. The Supreme Court found that such conduct offended even "hardened sensibilities." Rochin, 342 U.S. at 172, 72 S.Ct. 205. It "shock[ed] the conscience" and violated Rochin's right to due process under the Constitution. Id.
Rochin was decided before the Fourth Amendment was applied to the states through incorporation by the Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). "Consequently, the Court has not relied on the Rochin `shocks the conscience' standard but has instead applied a Fourth Amendment reasonableness analysis in cases that, like Rochin, involved highly intrusive searches or seizures." Lester v. City of Chicago, 830 F.2d 706, 711 (7th Cir.1987). Moreover, the Supreme Court has rejected the use of the Fourteenth Amendment's "shocks the conscience" standard in Section 1983 claims involving excessive force under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). "Because different standards attach to the various rights, identifying the proper constitutional approach is essential." Gottlieb ex rel. Calabria v. Laurel Highlands School Dist., 272 F.3d 168, 171 (3d Cir.2001). Thus, "the difference between reviewing [the Government's] actions under the reasonableness standard of the Fourth Amendment or the shocks the conscience standard of the Fourteenth Amendment may be determinative." Id.
The jurisprudence that has developed for "ordinary" Fourth Amendment violations — where the test is "reasonableness" — is critical to determining whether Fourth Amendment violations occurred in the first instance. However, a violation must be more than "unreasonable" for it to satisfy the higher threshold of an "egregious" Fourth Amendment violation under Lopez-Mendoza. See Gonzalez-Rivera v. INS, 22 F.3d at 1448 ("We cannot determine whether the IJ properly excluded the I-213 Form based solely on our conclusion that the officers' conduct was unreasonable."); Puc-Ruiz, 629 F.3d at 778 ("Lopez-Mendoza requires more than a violation to justify exclusion."). The gap between reasonableness and egregious violations has led to our sister courts of appeals employing varying approaches to determining whether a Fourth Amendment violation is egregious. We consider some of those approaches here.
The Court of Appeals for the Ninth Circuit has adopted a test resembling the qualified immunity inquiry into whether a constitutional violation was the result of bad faith. Orhorhaghe, 38 F.3d at 493. After establishing that a Fourth Amendment violation has occurred, the Ninth Circuit considers "whether the agents committed the violations deliberately or by conduct a reasonable officer should have known would violate the Constitution." Id. The test was developed in Adamson v. C.I.R., 745 F.2d 541, 545 (9th Cir.1984),
Oliva-Ramos's petition, however, demonstrates the difficulty courts and agencies face in adopting a test that is perched on the fulcrum of the good faith of the police. Oliva-Ramos has alleged that it was ICE's policy to detain individuals without reasonable suspicion and to enter homes during pre-dawn raids without consent. He also alleges that the officers who carry out these pre-dawn raids are acting under the guidance of ICE policy. Thus, focusing only on their good faith would permit conduct that may be objectively reasonable based on directives of the Department of Homeland Security, but nevertheless result in routine invasions of the constitutionally protected privacy rights of individuals.
In Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir.2006), the Court of Appeals for the Second Circuit also addressed this issue. There, Almeida-Amaral, who was 17 years old, walked into a parking lot that was adjacent to a gas station in southern Texas. He was approached by a uniformed border patrol agent who stopped him and asked for identification. Almeida-Amaral was arrested when he produced a Brazilian passport and made subsequent statements that formed the basis of an I-213 Form and an order of deportation. When removal proceedings were instituted against him, Almeida-Amaral argued that his passport and statements to the police should not be considered because they were obtained upon a warrantless seizure and arrest in violation of the Fourth Amendment.
The Court of Appeals for the Second Circuit began its discussion by explicitly adopting the Lopez-Mendoza exception applying the exclusionary rule in civil removal proceedings. See id. at 234 ("[W]e now apply it as the law of the circuit."). It then held that "exclusion of evidence is appropriate under the rule of Lopez-Mendoza if record evidence established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that the violation — regardless of its egregiousness or unfairness — undermined the reliability of the evidence in dispute." Id. at 235. We accept the test adopted by the Second Circuit with slight modification.
The Second Circuit made clear that the probative value of the evidence obtained is irrelevant to the inquiry. We
The Second Circuit did not discuss further the contours of the second prong of its approach — "that the violation-regardless of its egregiousness or unfairness-undermined the reliability of the evidence in dispute" — because the facts of the case did not raise "doubts about the veracity of the evidence obtained as a result of the seizure." Id. at 235. Rather, the court focused on when a Fourth Amendment violation may be "fundamentally unfair." First, the court emphasized that whether a violation is fundamentally unfair depends heavily upon the facts of each case.
Id. It added that "exclusion may well be proper where the seizure itself is gross or unreasonable in addition to being without a plausible legal ground, e.g., when the initial illegal stop is particularly lengthy, there is a show or use of force, etc." Id. at 236. And second, where "there is evidence that the stop was based on race, the violation would be egregious, and the exclusionary rule would apply." Id. at 237.
We discern a few guiding principles from Almeida-Amaral. First, and most importantly, courts and agencies must adopt a flexible case-by-case approach for
These cases demonstrate that there is no one-size-fits-all approach to determining whether a Fourth Amendment violation is egregious. Indeed, the exceptions announced in Lopez-Mendoza do not suggest or imply that any strict test-based approach is appropriate or warranted. Using this formulation of the rule as its guide, on remand, the BIA's inquiry should include such factors as: whether Oliva-Ramos can establish intentional violations of the Fourth Amendment, whether the seizure itself was so gross or unreasonable in addition to being without a plausible legal ground, (e.g., when the initial illegal stop is particularly lengthy, there is an unnecessary and menacing show or use of force, etc.), whether improper seizures, illegal entry of homes, or arrests occurred under threats, coercion or physical abuse, the extent to which the agents reported to unreasonable shows of force, and finally, whether any seizures or arrests were based on race or perceived ethnicity. These factors are illustrative of the inquiry and not intended as an exhaustive list of factors that should always be considered, nor is any one factor necessarily determinative of the outcome in every case. Rather, the familiar totality of the circumstances must guide the inquiry and determine its outcome. Thus, on remand, the BIA (and perhaps the IJ) must meaningfully examine the particular facts and circumstances of the ICE agents' conduct. To the extent that the factors discussed above are relevant, they should consider them.
To our knowledge, no court has explicitly adopted or applied the portion of the Lopez-Mendoza pronouncement that "conclusions concerning the exclusionary rule's value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread." 468 U.S. at 1050, 104 S.Ct. 3479. Yet it is as much a part of the
On other occasions, in a concurring opinion, Justice Kennedy has acknowledged that evidence of widespread Fourth Amendment violations would raise serious concerns. In his concurring opinion in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), Justice Kennedy explained:
Id. at 604, 126 S.Ct. 2159 (Kennedy, J., concurring).
Similarly, in United States v. Navarro-Diaz, 420 F.3d 581 (6th Cir.2005), the court expressed the following view:
Navarro-Diaz, 420 F.3d at 587.
Oliva-Ramos alleges that the ICE officers' conduct here is both egregious
Oliva-Ramos has attempted to introduce evidence of a consistent pattern of conducting these raids during unreasonable hours, such as the 4:30 a.m. raid that occurred here. Oliva-Ramos is trying to support these allegations by resorting to documents that were not available when he had his hearing before the IJ, but were presented to the BIA for its consideration on appeal. This evidence included ICE Memoranda regarding the Fugitive Operations Teams and ICE arrest statistics. It appears from this record the documents were not available for the IJ to consider initially because they were produced only after Oliva-Ramos litigated their disclosure under the Freedom of Information Act. In his FOIA request dated October 4, 2007, Oliva-Ramos requested "ICE policies, directives, and memoranda regarding collateral arrests made at the suspected locations of individuals targeted by ICE." Id. The Government refused to release these documents, citing FOIA exemptions. Id. As Oliva-Ramos notes, the Government's withholding of these documents impeded Oliva-Ramos's ability to present evidence before the IJ in the first instance prior to his April 23, 2008 suppression hearing.
Oliva-Ramos argues that ICE conceded that it has a policy of rounding up everyone in a home, without any particularized suspicion, in order to question all of the occupants about their immigration status.
We believe the BIA erred in not allowing Oliva-Ramos an opportunity to support his Fourth Amendment claim. We take no position, however, on the underlying question of whether the circumstances here are so egregious or widespread as to justify a suppression order. We merely conclude that Oliva-Ramos must be permitted to present evidence to support his contention that the Government's conduct here falls within the exception the Supreme Court was careful to allow in Lopez-Mendoza.
As we summarized above, the IJ and BIA dismissed Oliva-Ramos's claims because they concluded that Clara consented to entry and that Oliva-Ramos could not, therefore, establish any Fourth Amendment violation. However, we agree that the BIA failed to apply the proper Fourth Amendment inquiry.
The BIA considered the question in the context of 8 C.F.R. § 287.8(f)(2) which provides:
In affirming the IJ's decision that no Fourth Amendment violation occurred because the entry was consensual, the BIA stated that "we have considered the respondent's asserted bases for contending that the consent to the officers' entry was coerced (or otherwise invalid) but we are not persuaded by them." "Although the BIA `is not required to "write an exegesis" on every contention,' the `analysis' offered here is simply inadequate to afford the meaningful review that both" Oliva-Ramos and the Government deserve. Zubeda v. Ashcroft, 333 F.3d 463, 477 (3d Cir.2003) (quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000)).
The Supreme Court has made clear that "[c]onsent must be given voluntarily." Stabile, 633 F.3d at 230 (citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)). Thus, the Court requires a careful examination of the totality of the circumstances surrounding how that consent was obtained. See United States v. Drayton, 536 U.S. 194, 206-07, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). The appropriate inquiry into the voluntariness of a purported consent would include, without limitation: "the age, education, and intelligence of the subject; whether the subject was advised of his or her constitutional rights; the length of the encounter; the repetition or duration of the questioning; and the use of physical punishment." United States v. Price, 558 F.3d 270, 278 (3d Cir.2009). We have also "identified as relevant `the setting in which the consent was obtained [and] the parties' verbal and non-verbal actions.'" Id. In addition, the number of officers and displays of force are important factors. See United States v. Kim, 27 F.3d 947, 954 (3d Cir.1994). This kind of particularized scrutiny was not applied to the evidence here because it was assumed that the Fourth Amendment remedy of suppression did not apply. Rather, the Form I-213 that was relied on to establish a consensual entry indicated that "[c]onsent to enter the premises was provided by Clara Oliva." That appears to have largely been the beginning and the end of the inquiry. As noted above, however, Officer Belluardo did not recall the specifics of the entry; she merely testified based upon what she said was normal procedure.
The BIA, therefore, erred in finding valid consent without analyzing the totality of the circumstances under the Fourth Amendment. Again, we take no position on what the outcome of that inquiry should be here. We only hold that the inquiry that appears on this record is not sufficient given the nature of Oliva-Ramos's claims.
The BIA correctly noted that 8 U.S.C. 1357(a)(1) permits an ICE agent, without a warrant, to "interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States." 8 U.S.C. § 1357(a)(1). We have made clear, however, that the "authority under Section 1357(a)(1) to interrogate a person believed to be an alien is limited by the restrictions of the fourth amendment." Babula v. Immigration & Naturalization Service, 665 F.2d 293, 295 (3d Cir.1981) (citation omitted). As we noted in Babula, "[s]ince the same standards govern the validity of a seizure under section 1357(a)(1) as under the fourth amendment, questioning that is permissible under the fourth amendment is also permissible under section 1357(a)(1)." Id.
8 C.F.R. § 287.8 was promulgated pursuant to 8 U.S.C. § 1357(a)(1). This regulation incorporates the test that "a person
In order to conduct a proper analysis under the Fourth Amendment, the BIA should have considered among the non-exclusive list of relevant factors, the circumstances that the Supreme Court described in Mendenhall. The Mendenhall Court explained that "[e]xamples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870.
Although we do not decide whether those factors in fact existed, we discuss by way of example some of the considerations that could have influenced the Mendenhall analysis. Here, armed ICE officers entered Oliva-Ramos's room shining flashlights that woke him up at 4:30 in the morning. After he got up, he was told to go to the living room where officers blocked several exits and detained his family members. The record also indicates at least six armed uniformed ICE officers were present and that certain family members were told to sit down when they tried to stand.
In concluding that Oliva-Ramos was not improperly seized, the BIA relied exclusively on Oliva-Ramos's testimony during the suppression hearing that he had no intention of leaving the premises because he "didn't commit any crime." Yet the question of intent to leave is less relevant under the Fourth Amendment than whether he felt free to leave. See Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ("[T]he Court adopted Justice Stewart's touchstone [Mendenhall test], but added that when a person `has no desire to leave' for reasons unrelated to the police presence, the `coercive effect of the encounter' can be measured better by asking whether `a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter.'") (internal citations omitted).
Mendenhall makes clear that "circumstances that might indicate a seizure" may exist "even where the person did not attempt to leave...." Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. Here, while Oliva-Ramos may not have intended or attempted to leave his apartment at 4:30 a.m., the BIA must also inquire into whether he felt free to leave. (Question: "What would have happened if you'd asked the officers to leave?;" Response "I couldn't tell the officers to leave because it's the law and I didn't have anything to tell them."). The BIA, therefore, erred in rejecting Oliva-Ramos's claim of a regulatory violation without an adequate inquiry into whether Oliva-Ramos was seized before proceeding to find reasonable suspicion to detain him.
We caution, however, that nothing in this opinion is intended to undermine the ability of immigration officers to ask questions of a person to obtain his or her immigration status so long as the inquiry is consistent with the limitations imposed
Our discussion of these principles is not intended to resolve the merits of Oliva-Ramos's Fourth Amendment claims. Rather, we simply explain that the inquiry undertaken by the BIA was wrongly guided by its assumption that suppression is not permitted in removal proceedings. Cf. Babula, 665 F.2d at 296 (finding reasonable suspicion in the context of an automobile stop).
We must also consider whether the BIA properly construed 8 C.F.R. § 287.8(c)(2)(i), which states that "[a]n arrest shall be made only when the designated immigration officer has reason to believe that the person to be arrested has committed an offense against the United States or is an alien illegally in the United States." 8 C.F.R. § 287.8(c)(2)(i). Section 287.8(c)(2)(i) emanates from INA § 287(a)(2), 8 U.S.C. § 1357(a)(2). We held in Babula that "under section 1357(a)(2) ... `arrest' means an arrest upon probable cause, and not simply a detention for purposes of interrogation." 665 F.2d at 298.
In Tejeda-Mata v. Immigration & Naturalization Service, 626 F.2d 721 (9th Cir. 1980), a case upon which the BIA relied in finding that Oliva-Ramos posed a flight risk, the Court of Appeals for the Ninth Circuit held that, in addition to the background circumstances of the interrogation, an uncoerced admission that a petitioner "came from Mexico ... constitute[d] a clearly sufficient basis for his warrantless arrest." Tejeda-Mata, 626 F.2d at 725. There, Tejeda-Mata drove through a parking lot in Washington when an officer "recognized an alien whom he had previously arrested and who had been granted voluntary departure." Id. at 723. After the officer parked his car to block Tejeda-Mata, he jumped out of the car and asked the officer what was happening. The officer asked where he was from and Tejeda-Mata responded that he came from Mexico.
Here, it should be clear from what we have thus far explained that we cannot conclude that any statements related to Oliva-Ramos being a flight risk were uncoerced, without an examination by the BIA or the IJ in the first instance into whether Oliva-Ramos was improperly seized during the home raid and subsequent arrest. See Wong Sun v. United States, 371 U.S. 471, 484, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (stating that if evidence is obtained as a result of an unlawful seizure, it is to be excluded as the "`fruits' of the [officer's] unlawful action."). The BIA relied solely on a statement contained in the Form I-213 that Oliva-Ramos posed a flight risk, and thus § 287.8(c)(2), (f) permitted a warrantless arrest. Whether Oliva-Ramos's warrantless arrest was valid
8 C.F.R. § 287.8(c)(2)(vii) prohibits "[t]he use of threats, coercion, or physical abuse by the designated immigration officer to induce a suspect to waive his or her rights or to make a statement...." 8 C.F.R. § 287.8(c)(2)(vii). The BIA combined its analysis of this regulatory provision with the discussion of an improper seizure under 8 C.F.R. § 287.8(b)(1). Based on our discussion of the circumstances surrounding the potential improper seizure and coercion, we will remand for further consideration of 8 C.F.R. § 287.8(c)(2)(vii) and any potential violation of the Due Process Clause of the Fifth Amendment.
In addition to the regulatory violations discussed above, Oliva-Ramos also claims that ICE agents violated 8 C.F.R. § 292.5(b). That regulation provides:
8 C.F.R. § 292.5. The BIA rejected Oliva-Ramos's challenge to this provision, concluding that the Government is only required to inform an alien of his right to legal representation after he is placed into formal proceedings. See Samayoa-Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir.2009). We agree with the Board's interpretation of § 292.5. Formal removal proceedings begin only after the Government has filed a Notice to Appear in immigration court. See 8 C.F.R. § 1239.1(a) ("Every removal proceeding conducted under section 240 of the Act (8 U.S.C. § 1229a) to determine the deportability or inadmissibility of an alien is commenced by the filing of a notice to appear with the immigration court."). Here, although the Government issued its Notice to Appear for Oliva-Ramos on March 26, 2007, the notice was not filed with the Immigration Court — thus initiating formal proceedings — until March 29, 2007. That Notice to Appear also provided a statement informing Oliva-Ramos of his right to representation. Thus we will affirm the BIA as to its ruling on § 292.5 because we conclude that Oliva-Ramos was notified of his right to counsel before he was placed in formal proceedings.
For the reasons discussed above, we will vacate in part and will affirm in part, the BIA's August 31, 2010 order, and we will
The referenced exception found in Section 287(a)(3) of the Immigration and Nationality Act relates to border searches. 8 U.S.C. § 1357(a)(3), 66 Stat. 233, INA § 287(a)(3) (2006) ("Any officer or employee of the Service authorized under regulations prescribed by the Attorney General shall have power without warrant — ... within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.").
8 C.F.R. § 292.5(b) provides in relevant part: "Whenever an examination is provided for in this chapter, the person involved shall have the right to be represented by an attorney or representative who shall be permitted to examine or cross-examine such person and witnesses, to introduce evidence, to make objections... and to submit briefs."
ICE Response to Oliva-Ramos's FOIA request, definition of FOIA Exemption 2 (high) (Feb. 19, 2008). The Government further explained that "FOIA Exemption 7(E) protects records compiled for law enforcement purposes, the release of which could disclose techniques and/or procedures for law enforcement investigations or prosecutions, or could reasonably be expected to risk circumventions of the law." Id. (citing ICE Response to FOIA Request, definition of FOIA Exemption 7(E) (Feb. 19, 2008)).
