PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

           Nos. 18-1520 and 18-1521
                _____________

          ERICK GEOVANY YOC-US,

                   Petitioner in case number 18-1520

                      v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

                    Respondent


          LUIS CALEL ESPANTZAY,

                   Petitioner in case number 18-1521

                      v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

                     Respondent
        On Petition for Review of an Order of the
              Board of Immigration Appeals
    (BIA-1 : A213-090-679 and BIA-1 : A213-090-683)
     Immigration Judge: Honorable Walter A. Durling


               Argued on November 7, 2018

               (Opinion filed: July 31, 2019)


 Before: AMBRO, SCIRICA and RENDELL, Circuit Judges
Joanna J. Cline, Esquire (Argued)
Anthony C. Vale, Esquire
Andrew R. Rogoff, Esquire
Pepper Hamilton
3000 Two Logan Square
18th and Arch Streets
Philadelphia, PA 19103

                           Counsel for Petitioners


Jennifer A. Bowen, Esquire
OIL
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044




                             

. Camilleri, Esquire (Argued)
United States Department of Justice
Office of Immigration Litigation
450 5th Street, N.W.
Washington, DC 20001

                            Counsel for Respondent


David R. Fine, Esquire
K&L Gates
17 North Second Street
18th Floor
Harrisburg, PA 17101

                            Counsel Amicus-petitioner




                         OPINION


RENDELL, Circuit Judge:

       Early one morning, Petitioners Erick Geovany Yoc-Us
and Luis Calel-Espantzay were traveling in a van that was
stopped for speeding by a Pennsylvania state trooper. During
the course of the stop, the trooper discovered that Petitioners
were undocumented aliens. The trooper detained them and
called Immigration and Customs Enforcement (“ICE”), who




                              3
interviewed and fingerprinted Petitioners and took them into
custody. In the civil removal proceedings that followed,
Petitioners argued that the stop violated the Fourth
Amendment and that the evidence of their alienage should be
suppressed. The Immigration Judge (“IJ”) and the Board of
Immigration Appeals (“BIA”) were unpersuaded. While the
Supreme Court has held that the Fourth Amendment does not
require suppression of evidence in civil removal proceedings
where the purportedly offending conduct by federal agents
was neither egregious nor widespread, this case presents a
different context, namely, a state trooper’s conduct rather
than that of a federal officer. Accordingly, we must consider
whether this difference leads to a different result.

                               I.

                              A.

       Petitioners are undocumented aliens from Guatemala
who have lived and worked in New York since 2008. They
were traveling in a van with eight other men, returning to
New York from Georgia.           According to declarations
submitted by Petitioners and other passengers, Pennsylvania
State Trooper Luke C. Macke pulled the van over for
speeding between 7:40 and 8:00 in the morning. Petitioners
were not driving the van when this happened and were
instead asleep in the back of the van. When Macke
approached the driver of the vehicle, he asked for his license
and registration. Petitioners allege that the driver did not
have his license with him, but he gave Macke his social
security number and offered to call his wife to get his driver’s
license number. The owner of the van, who was seated in the




                               4
front passenger seat, gave Macke his own license and
registration.
        Petitioners allege that “[i]nstead of going back to his
vehicle to check [either the van owner’s or the driver’s]
information . . . [,] [Macke] then went to the side passenger
door of the van, opened the door and said [to the eight
passengers in the back], ‘let me see your immigration papers,
work permit, visa, passport and ID.’” Calel-Espantzay A.
211. Petitioners claim that they did not have any documents
to give him, and their declarations do not indicate that they
verbally offered him any information. Contrary to this
account, however, the Records of Deportable/Inadmissible
Alien (“Forms I-213”) produced by the Government purport
that, in response to Macke’s inquiry, the Petitioners admitted
that they were citizens of another country. According to the
Forms I-213, Macke contacted ICE at approximately 8:30
a.m. and “stated that he encountered nine individuals during a
traffic stop who claimed to be citizens of; [sic] Guatemala,
Mexico, El Salvador and Ecuador.” 

Macke issued
citations to the driver of the car at 8:57 a.m. 1 

        Petitioners allege that Macke ordered them to drive
the van to a nearby rest stop and, once there, positioned his
own car so that Petitioners’ van could not be moved. They
claim that he ordered them to turn off the van and remain in it
and that “[h]e then began to interrogate [them] about [their]
immigration status,” again “asking to see [their] work
permit[s], passports, visas and social security card[s].” 

Between the time they reached the rest stop and the time
ICE agents arrived, Petitioners allege that Macke would not

1
 The citations were issued for speeding and for operating a
vehicle with a suspended or revoked license.




                               5
allow them to leave the van to use the bathroom, would not
allow them food or water, and would not let them turn the air-
conditioning on in the van even though the weather was
“humid.” 

They state that they could not leave
and that they felt as though they had to answer his questions.
They also “d[id] not know why [Macke] kept [them] there
except for the fact that [they] all look Hispanic.” 

       According to the Forms I-213, ICE agents arrived at
approximately 9:30 a.m., between an hour and a half and two
hours after the alleged time of the initial stop. The ICE
agents conducted interviews of Petitioners and other
passengers and fingerprinted them. The Government’s
evidence asserts that all “freely stated that they were not
citizens of the United States[,] had illegally entered the
United States . . . [, and] were not in possession of any
immigration document that would allow them to remain the
United States lawfully.” 

They were then
handcuffed and transported to an immigration office, where
they remained for approximately three hours, until they were
moved to a local county prison.

                              B.

       The Department of Homeland Security (“DHS”)
served Petitioners with a Notice to Appear Form, alleging that
they were subject to removal pursuant to 8 U.S.C. §
1182(a)(6)(A)(i). Petitioners moved to suppress any evidence
of their alienage obtained as a result of the stop, arguing that
it had been discovered through a violation of their Fourth
Amendment rights. Because the Government would not be
able to meet its burden of proving alienage without this




                               6
evidence, Petitioners also moved to terminate the removal
proceedings.
       Before the scheduled removal hearing was held, the IJ
denied Petitioners’ motion and declined their request for an
evidentiary hearing. Citing Lopez-Gabriel v. Holder, 

(8th Cir. 2011), the IJ concluded that the
exclusionary rule does not apply to intersovereign situations
where a violation was committed by a sovereign other than
the one involved in the civil proceeding. The IJ also credited
the Government’s evidence and found that Petitioners’
“complaint against the ICE officers lacks any corroborating
evidence” and only amounts to “unsubstantiated allegations.”
Yoc-Us A. 135. The IJ discredited Petitioners’ account that
Macke stopped them because of their Hispanic appearance,
finding that their claim was “refuted by evidence which
shows that their vehicle was stopped for excessive speed.”

regard to Macke’s alleged misconduct, the IJ
concluded that the Immigration Court “lacks authority to
provide any remedy for a separate sovereign’s misconduct.”

subsequent decision, the IJ ordered Petitioners
removed from the United States to Guatemala.

       A single-member panel of the BIA affirmed the IJ’s
ruling in substantially identical opinions for each Petitioner.
Citing INS v. Lopez-Mendoza, 

(1984), the BIA
stated that the Fourth Amendment exclusionary rule only
applies to removal proceedings where “there are egregious
Fourth Amendment violations that transgress Fifth
Amendment notions of fundamental fairness, undermining the
probative value of the evidence.” 

Calel-Espantzay A.
3. The BIA “discerned no clear error” in the IJ’s findings.
Yoc-Us A. 3; Calel-Espantzay A. 2. It agreed with the IJ that
Macke conducted a lawful stop and that Petitioners failed to




                              7
show that Macke or the ICE agents engaged in egregious
conduct. Because it found that Petitioners did not establish a
prima facie case for suppression, the BIA concluded that an
evidentiary hearing was unnecessary. Lastly, the BIA
rejected Petitioners’ claim that this type of violation was
“widespread,” finding that they failed to present any
supporting evidence. This petition for review followed.

                             II.

      The BIA had jurisdiction to review the IJ’s order of
removal and order denying Petitioners’ motion for
suppression and termination pursuant to 8 C.F.R. §
1003.1(b)(3). We have jurisdiction under 8 U.S.C. §
1252(a)(1).

       Because the BIA issued its own opinion, we review its
decision rather than that of the IJ. Moreno v. Att’y Gen., 

, 163 (3d Cir. 2018) (citation omitted). However, to
the extent that the BIA “deferred to or adopted” the IJ’s
reasoning, we evaluate the decision of the IJ. Cadapan v.
Att’y Gen., 

, 159 (3d Cir. 2014). We review
questions of law de novo, subject to the principles of
deference articulated in Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 

(1984). 

factual findings “to ensure that they are supported
by substantial evidence from the record considered as a
whole, and we will reverse based on a factual error only if
any reasonable fact-finder would be ‘compelled to conclude
otherwise.’” Huang v. Att’y Gen., 

, 379 (3d Cir.
2010) (citing Espinosa–Cortez v. Att’y Gen., 

,
106 (3d Cir. 2010) and quoting 8 U.S.C. § 1252(b)(4)(B)).




                              8
                               III.

        Petitioners urge that their motion to suppress should
have been granted based on the exclusionary rule. They
argue that the exclusionary rule should apply when the
offending conduct was committed by state or local law
enforcement, rather than federal agents. However, even if we
do not agree that the exclusionary rule should apply here, they
urge that the evidence should still be suppressed pursuant to
our holding in Oliva-Ramos v. Attorney General, 

(3d Cir. 2012), as the fruit of an egregious or widespread
Fourth Amendment violation. Alternatively, Petitioners
contend that they should have been entitled to an evidentiary
hearing on their motion and ask us to remand this matter to
the IJ to conduct such a hearing.

                               A.

      As a threshold matter, we consider whether Petitioners
made a prima facie showing that their detention violated the
Fourth Amendment and that the evidence they seek to
suppress was the fruit of that constitutional violation. Even
though Petitioners are not United States citizens, the relevant
Fourth and Fourteenth Amendment rights apply to them.
Wong Wing v. United States, 

, 238 (1896).

        The constitutionality of a seizure that is not an arrest
depends upon “the reasonableness in all the circumstances of
the particular governmental invasion of a citizen’s personal
security.” Terry v. Ohio, 

, 19 (1968). “[A] search
which is reasonable at its inception may violate the Fourth
Amendment by virtue of its intolerable intensity and scope,”
the latter of which “must be strictly tied to and justified by the




                                9
circumstances which rendered its initiation permissible.” 

(citations and internal quotation marks omitted).
Therefore, in determining reasonableness, we consider
“whether the officer’s action was justified at its inception, and
whether it was reasonably related in scope to the
circumstances which justified the interference in the first
place.” 

        In the context of traffic stops, the Supreme Court has
made clear that “the tolerable duration [of the stop] is
determined by the seizure’s ‘mission’—to address the traffic
violation that warranted the stop and attend to related safety
concerns.” Rodriguez v. United States, 

, 1614
(2015) (citations omitted). “A seizure justified only by a
police-observed traffic violation, therefore, ‘become[s]
unlawful if it is prolonged beyond the time reasonably
required to complete th[e] mission’ of issuing a ticket for the
violation.” 

(quoting Illinois v. Caballes, 

, 407 (2005)) (alterations in original) (holding that a seven
or eight minute extension of a traffic stop to conduct a dog
sniff is unreasonable if the officer did not have reasonable
suspicion of criminal activity). “To prolong a stop beyond
that point, the officer must have acquired reasonable
suspicion during the mission to justify further investigation.”
United States v. Clark, 

, 410 (3d Cir. 2018)
(citing 

). With regard to what
questions an officer may ask, the Supreme Court has stated
that “inquiries into matters unrelated to the justification for
the traffic stop . . . do not convert the encounter into
something other than a lawful seizure, so long as those
inquiries do not measurably extend the duration of the stop.”
Arizona v. Johnson, 

, 333 (2009).




                               10
        A state or local officer’s conduct during a stop is
further limited in the immigration context. In Arizona v.
United States, the Supreme Court raised two concerns with
“[d]etaining individuals solely to verify their immigration
status.” 

, 413 (2012). First, because “it is not a
crime for a removable alien to remain present in the United
States,” 

(citation omitted), “the usual predicate for
an arrest is absent” where an officer stops someone based on
possible removability, id.; see also Sanchez v. Sessions, 

, 789 (4th Cir. 2018) (“[W]hen, absent federal
direction or authorization, a state or local officer detains or
arrests someone based solely on a civil immigration violation,
the officer violates that individual’s Fourth Amendment right
to be free from unreasonable searches and seizures.”
(emphasis in original)); Melendres v. Arpaio, 

,
1000 (9th Cir. 2012) (“[T]he Fourth Amendment does not
permit a stop or detention based solely on unlawful
presence.”); Almeida-Amaral v. Gonzales, 

, 236
(2d Cir. 2006) (holding that the petitioner’s Fourth
Amendment rights were violated where the arresting officer
did not have a valid justification for the stop). Even if an
initial stop is lawful, “delay[ing] the release of some
detainees for no reason other than to verify their immigration
status” would “raise constitutional concerns.” Arizona v.
United 

(citing Arizona v. 

). Second, detention based only on removability
“would disrupt the federal framework” established by
Congress. 

put in place a system in which
state officers may not make warrantless arrests of aliens based
on possible removability except in specific, limited
circumstances.” 

For example, federal law allows
the Attorney General to enter into formal agreements with
state or local governments that grant the authority to certain




                              11
officers to perform the tasks of federal immigration officers.

(citations omitted). Absent such authorization,
local officers are discouraged from involving themselves in
immigration matters. See 

(describing the usual
process by which federal officials initiate removal
proceedings).

       This, however, does not bar law enforcement officers
from ever inquiring into an individual’s immigration status.
In Muehler v. Mena, the occupant of a home was detained
while the police executed a search. 

, 95 (2005).
During that time, a federal immigration officer asked the
occupant for her immigration documentation, even though the
officer did not have an independent reasonable suspicion to
question her about it. 

The Supreme Court held that
this did not violate her Fourth Amendment rights because
“the Court of Appeals did not find that the questioning
extended the time [she] was detained.” 

Therefore,
questioning about an individual’s immigration status does not
violate the Fourth Amendment where the initial seizure of the
individual is lawful and the questioning does not prolong the
seizure. However, officers may not stop an individual only to
inquire about their immigration status, nor may they extend a
stop for such an inquiry. See Rajah v. Mukasey, 

, 441 (2d Cir. 2008) (“The Fourth Amendment does
provide protection against random or gratuitous questioning
related to an individual's immigration status.”).

       With this background in mind, we turn to the facts of
this case. Although Macke was justified in initially stopping
the van for speeding, the record supports Petitioners’
allegations that their Fourth Amendment rights were violated
when Macke unreasonably extended the stop to investigate




                             12
their immigration status. The declarations submitted on their
behalf allege that Macke stopped the van between 7:40 and
8:00 a.m. The Forms I-213 state that he contacted ICE
around 8:30 a.m. The traffic citations were issued at 8:57
a.m., Petitioners were sent to the rest area, and ICE agents
arrived about thirty minutes later. Because Macke contacted
ICE before the citations were issued, at least some of the time
between the initial stop and the issuance of the citations was
spent interrogating the passengers in the back of the van.
Moreover, Petitioners’ and other passengers’ thirty-three
minute detention after the issuance of the citations—which
marked the end of “the seizure’s mission”—and before ICE’s
arrival extended “beyond the time reasonably required to
complete the mission of issuing a ticket for the violation.”

, 1614 (citations and internal
quotation marks omitted). The Government does not allege
that Macke had reasonable suspicion that any of the
passengers were engaged in any criminal activity or that there
were any safety concerns to address. Furthermore, Macke
lacked the authority to enforce civil immigration law. See
U.S. Immigration and Customs Enforcement, Delegation of
Immigration Authority Section 287(g) Immigration and
Nationality Act (last updated Aug 10, 2018),
https://www.ice.gov/287g (showing that Pennsylvania has no
agreement with the federal government that would allow state
agents to perform the functions of immigration officials).
Therefore, Petitioners made a prima facie showing that the
extension of the stop to investigate their status was
unreasonable and in violation of the Fourth Amendment.




                              13
                              B.

        We next determine whether the exclusionary rule
applies to suppress the evidence gathered as a result of the
violation so that it should not have been used in Petitioners’
civil removal proceedings. The exclusionary rule “bars the
prosecution from introducing evidence obtained by way of a
Fourth Amendment violation.” Davis v. United States, 

, 232 (2011). Because the “sole purpose” of the rule
“is to deter future Fourth Amendment violations,” the rule is
only applied in “situations in which this purpose is thought
most efficaciously served.” 

(citations and
internal quotation marks omitted). Initially, application of the
rule was limited to federal officers in federal criminal
proceedings. See United States v. Janis, 

, 443–
44 (1976). However, the exclusionary rule has since been
extended to state officers and state criminal proceedings. See
Elkins v. United States, 

, 223 (1960); Mapp v.
Ohio, 

, 654 (1961). Therefore, it is applicable in
all criminal proceedings against federal, state, and local law
enforcement. See 

–47.

        The issue before us is the extent to which the
exclusionary rule should apply in civil removal proceedings
where a state or local law enforcement officer is accused of
violating a petitioner’s Fourth Amendment rights. The
Supreme Court first considered an analogous issue in United
States v. Janis. See 

There, pursuant to a search
warrant, local law enforcement discovered evidence that the
plaintiff had violated gambling 

–36. In
the ensuing criminal proceeding, the warrant was held to be
invalid, and the evidence against the plaintiff was suppressed
pursuant to the exclusionary rule. 

The




                              14
plaintiff then initiated a civil tax proceeding, seeking a refund
for the assessment made against him by the Internal Revenue
Service based on his winnings from his illicit gambling
activities, and moved to suppress the same evidence that had
been seized pursuant to the invalid warrant. 

        In considering whether the exclusionary rule also
applied in the civil tax proceeding, the Supreme Court
weighed the deterrent effect of the rule in such proceedings
against the social costs imposed by applying it there. 

As to deterrence, the Court first noted that state law
enforcement officers were already “punished” by application
of the exclusionary rule in the criminal proceedings. 

(internal quotation marks omitted). It reasoned that any
additional deterrence provided by application of the rule in
civil proceedings was marginal, and the extreme social costs
of applying the rule in those settings—namely, “the societal
interest in law enforcement by its proscription of what
concededly is relevant evidence”—outweighed the deterrent
effect. 

–49, 453–54. Additionally, the Court
considered that the federal civil proceeding involved the
enforcement of the law of a sovereign other than the one
involved in the state criminal proceeding, stating that “the
deterrent effect of the exclusion of relevant evidence is highly
attenuated when the ‘punishment’ imposed upon the
offending criminal enforcement officer is the removal of that
evidence from a civil suit by or against a different sovereign.”

It continued:

              This attenuation, coupled with the
              existing deterrence effected by the
              denial of use of the evidence by
              either sovereign in the criminal




                               15
             trials with which the searching
             officer is concerned, creates a
             situation in which the imposition
             of the exclusionary rule sought in
             this case is unlikely to provide
             significant, much less substantial,
             additional deterrence.     It falls
             outside the offending officer’s
             zone of primary interest.

Therefore, the Court held “that the judicially
created exclusionary rule should not be extended to forbid the
use in the civil proceeding of one sovereign of evidence
seized by a criminal law enforcement agent of another
sovereign.” 

       The Supreme Court again considered the Janis factors
of deterrence and social costs in INS v. Lopez-Mendoza,
where it was urged that the exclusionary rule should apply in
civil deportation 2 proceedings when the evidence supporting
removal was gathered by federal immigration officers in
violation of petitioner-aliens’ Fourth Amendment 

, 1041. At the outset, the Court noted the unique
nature of deportation proceedings: “A deportation proceeding
is a purely civil action to determine eligibility to remain in
this country, not to punish an unlawful entry.” 

2
  Lopez-Mendoza was decided before the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, which
replaced the term “deportation” with “removal.” I.N.S. v. St.
Cyr, 

, 315 (2001). Therefore, the civil
proceedings at issue here are no different from those that took
place in Lopez-Mendoza.




                              16
Immigration judges are only able to order deportation, and the
government’s only burden is showing identity and alienage.

        The Court then turned to the likely deterrent effect of
applying the exclusionary rule in deportation proceedings. It
acknowledged that because federal immigration officers are
primarily concerned with using evidence in these specific
proceedings, the rule could deter unlawful conduct. 

However, the Court found that “several other
factors significantly reduce the likely deterrent value of the
exclusionary rule” in this setting. 

First, the
person and identity of an individual are not suppressible in
the same way as evidence probative of criminal conduct.
Thus, the government will be able to meet its burden in some
cases where there is “evidence gathered independently of, or
sufficiently attenuated from, the original arrest.” 

immigration officers believe that it is highly unlikely
that an individual will challenge the lawfulness of his or her
arrest in removal proceedings. 

Because the
consequences of the rare challenge are “trivial” to the
arresting officer, he “is most unlikely to shape his conduct in
anticipation of the exclusion of evidence at a formal
deportation hearing.”        

perhaps most
important, the INS has its own comprehensive scheme for
deterring Fourth Amendment violations by its officers.” 

explained that most arrests of undocumented aliens
occur during workplace surveys where “[l]arge numbers of
illegal aliens are often arrested at one time, and conditions are
understandably chaotic.” 

the rights of
those who are lawfully present at inspected workplaces,” the
INS created rules limiting agents’ ability to stop, interrogate,
and arrest. 

Agents receive training on the




                               17
Fourth Amendment at the start of their employment and
periodically throughout. 

Furthermore, the
Department of Justice excludes evidence seized “through
intentionally unlawful conduct . . . from the proceeding for
which it was obtained,” and the INS investigates and punishes
agents who commit Fourth Amendment violations. 

Court conceded that these rules and practices
“cannot guarantee that constitutional violations will not
occur,” it concluded that they do “reduce the likely deterrent
value of the exclusionary rule.” 

Finally, that
value is further “undermined by the availability of alternative
remedies for institutional practices by the INS that might
violate Fourth Amendment rights.” 

individual
has standing to do so, he or she may challenge INS practices
through an action against the agency for declaratory relief.

also determined that, on the other side of the
equation, “the social costs of applying the exclusionary rule
in deportation proceedings are both unusual and significant.”

First, application of the rule “in proceedings that
are intended not to punish past transgressions but to prevent
their continuance or renewal would require the courts to close
their eyes to ongoing violations of the law.” 

exclusionary rule “might significantly change and complicate
the character of these proceedings,” which are “deliberately
simple” and “streamlined to permit the quick resolution of
very large numbers of deportation actions.” 

Third, because federal immigration officers are currently not
required to “compile elaborate, contemporaneous, written
reports detailing the circumstances of every arrest,” applying
the exclusionary rule to these proceedings could seriously
burden these officers by requiring them to do “considerably




                              18
more.” 

Finally, because of the “crowded and
confused” nature of INS arrests, application of the
exclusionary rule might result in the exclusion of evidence
that had been obtained lawfully. 

these factors, the five Justices in the Lopez-
Mendoza majority agreed that “the Janis balance between
costs and benefits comes out against applying the
exclusionary rule in civil deportation hearings.” 

However, a plurality qualified this holding by reserving
judgment about cases involving “Fourth Amendment
violations by INS officers [that are] widespread” and
“egregious violations of Fourth Amendment or other liberties
that might transgress notions of fundamental fairness and
undermine the probative value of the evidence obtained.” 

Four Justices dissented, each believing that the
exclusionary rule should apply more generally in civil
deportation proceedings. See 

(Brennan, J.,
dissenting); 

(White, J., dissenting); 

(Marshall, J., dissenting) 

–61 (Stevens, J.,
dissenting). Therefore, eight of the nine Justices—the four in
the plurality and the four dissenting—agreed that the rule
could apply in removal proceedings where an egregious or
widespread Fourth Amendment violation occurred.

       While the plurality of the Supreme Court in Lopez-
Mendoza did not offer further guidance on the enumerated
possible exceptions, in Oliva-Ramos, we considered the
import of the various opinions in Lopez-Mendoza and
specifically rejected the BIA’s view that the portion of the
opinion that set forth the exceptions was obiter dicta. See

, 271–72. We stated that
“where an alien can establish either of those two




                              19
circumstances, the plurality opinion can only be read as
affirming that the remedy of suppression justifies the social
cost.” 

We then addressed what might
constitute an “egregious” violation of the Fourth Amendment.
In determining the standard that should apply, we reviewed
the approaches taken by the Ninth and the Second Circuits.
See 

The former “considers whether the agents
committed the violations deliberately or by conduct a
reasonable officer should have known would violate the
Constitution.” 

v. INS, 

,
493 (9th Cir. 1994)) (internal quotation marks omitted).
Alternatively, the Second Circuit held that the exclusionary
rule applies “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.” 

(quoting Almeida-Amaral
v. Gonzales, 

, 234 (2d Cir. 2006)) (internal
quotation marks omitted). That Court elaborated on the first
prong, explaining that the focus should be “on the
characteristics and severity of the offending conduct.” 

It added that “even where the seizure is not especially
severe, it may nevertheless qualify as an egregious violation
if the stop was based on race (or some other grossly improper
consideration).” 

Ninth Circuit’s approach “would permit
conduct that may be objectively reasonable based on
directives of [DHS], but nevertheless result in routine
invasions of the constitutionally protected privacy rights of
individuals,” we adopted the Second Circuit’s approach “with
slight modification.” 

that “evidence will be the
result of an egregious violation within the meaning of Lopez-




                              20
Mendoza, if the record evidence established either (a) that a
constitutional violation that was fundamentally unfair had
occurred, or (b) that the violation—regardless of its
unfairness—undermined the reliability of evidence in
dispute.” 

We explained that the totality of the
circumstances should be considered in making this
determination and offered a non-exhaustive list of factors for
agencies and courts to consider, including, for example,
whether the seizure was “based on race or perceived
ethnicity.”     

     We also stated that “most
constitutional violations that are part of a pattern of
widespread violations of the Fourth Amendment would also
satisfy the test for an egregious violation.” 

                             C.

       Here, we must determine the extent to which the
exclusionary rule will apply in removal proceedings where a
state or local law enforcement officer, rather than a federal
immigration officer, is accused of violating a petitioner’s
Fourth Amendment rights. As noted above, since its holding
in Lopez-Mendoza, the Supreme Court has expressed
reluctance to have state and local officers engage in
enforcement of federal immigration laws except to the extent
that Congress has expressly allowed. In Arizona v. United
States, the Court held that three Arizona statutory provisions
allowing these officers to enforce certain federal immigration
laws were preempted by federal 

–93,
416. In doing so, the Court expressed concern over
“disrupt[ing] the federal framework” put in place by
Congress, which specifically provides for state and local
officers to play a role in enforcement of certain federal
immigration laws if the state or local government has a




                             21
formal agreement with the federal government. 

see also 

Although preemption is not at issue in this
case, we note that the factual distinction in this case that was
not present in Lopez-Mendoza—namely, that the conduct of
state or local law enforcement is at issue—was central to the
Court’s ruling in Arizona v. United States.

        As in Janis and Lopez-Mendoza, our balancing
analysis begins with consideration of the exclusionary rule’s
likely deterrent effect in removal proceedings where a state or
local agent has violated the Fourth Amendment. As in Lopez-
Mendoza, deterrence is reduced by the fact that the person
and identity of an individual are not suppressible in these
proceedings. 

. Therefore,
the government will likely be able to meet its burden using
independent evidence of alienage in many cases. 

of the Supreme Court’s deterrence analysis in
Lopez-Mendoza, however, is specific to federal immigration
officers and does not lend itself easily to state or local law
enforcement. If anything, the comparison might lead to the
conclusion that there are fewer deterrents in place for local
officials, such that application of the “full” exclusionary rule
might be called for. For example, state and local law officers
are not trained to enforce the immigration laws, nor are they
subject to the INS mechanisms that are in place to deter
Fourth Amendment violations. See 

see also

. Furthermore, petitioners cannot
seek declaratory relief against the federal agency to address
the “institutional practices” of state and local officers that
violate the Fourth Amendment. See 

; 

.




                              22
       However, state and local officers are already
“punished” by the use of the exclusionary rule in criminal
proceedings. See 

(internal quotation
marks omitted).       Therefore, any additional deterrence
provided by the rule in the federal immigration setting is
marginal. This marginal deterrence is further attenuated by
the intersovereign nature of this case, since the application of
the exclusionary rule against state and local law enforcement
would result in “the removal of . . . evidence from a civil suit
by or against a different sovereign.”           

Therefore, the “punishment” is “outside the offending
officer’s zone of primary interest.” 

(internal
quotation marks omitted); see also 

(“[T]he exclusionary rule is likely to be most
effective when applied to . . . ‘intrasovereign’ violations.”);

(8th Cir. 2011) (“The case for
exclusion of evidence is even weaker where the alleged
misconduct was committed by an agent of a separate
sovereign. If evidence were suppressed in a federal civil
immigration proceeding, any deterrent effect on a local police
officer would be highly attenuated.”).

       The Fourth Circuit Court of Appeals recently analyzed
the deterrent value when local officials are involved and
agreed that applying the “full” exclusionary rule “would
clearly have some deterrent effect.” 

. Nonetheless, it did not agree “that the likely additional
deterrent value of the ‘full’ exclusionary rule, as opposed to
the ‘egregious violation’ rule, is appreciable or substantial
enough to justify its application.” 

original).
It reasoned that if an officer “detains or arrests someone
based solely on a civil immigration violation,” i.e., without
reasonable suspicion of criminal activity, in abuse of his legal




                              23
authority, the stop or seizure will “usually be egregious.” 

Court concluded that use of the “full” exclusionary
rule was unnecessary in order to deter unconstitutional
conduct. See 

that application of the “full” exclusionary
rule in removal proceedings where a Fourth Amendment
violation was committed by a state or local law enforcement
officer “is unlikely to provide significant, much less
substantial, additional deterrence.” 

(quoting Janis, 428 U.S at 458) (internal quotation
marks omitted). And, as noted by the Fourth Circuit in
Sanchez, sufficient additional deterrence can be provided by
the two exceptions offered by the plurality of the Supreme
Court in Lopez-Mendoza and adopted by this Court in Oliva-
Ramos if egregious or widespread.

       On the social costs side of the balance, application of
the exclusionary rule to cases where nonfederal law
enforcement officials were the relevant actors would
undoubtedly lead to the exclusion of relevant evidence, a cost
the Supreme Court considered significant in 

–49. Additionally, two of the considerations addressed
in Lopez-Mendoza also apply, at least in part, here. First,
application of the exclusionary rule to these proceedings
“would require the courts to close their eyes to ongoing
violations of the law.” 

. In Lopez-

3
  This social cost is mitigated, however, by the fact that the
Supreme Court has more recently held that “it is not a crime
for a removable alien to remain present in the United States.”
See Arizona v. United 

(citation
omitted).




                              24
Mendoza, the Court noted that it “has never before accepted
costs of this character in applying the exclusionary rule,” and,
where it has considered this type of cost, it “has firmly
indicated that the exclusionary rule does not extend this far.”

Second, the exclusionary rule “might
significantly change and complicate” what are otherwise
“streamlined” proceedings. 

And, as noted by the
Fourth Circuit in Sanchez, this second cost would be
magnified if different rules applied based on the nature of the
authorizations that various state and local law enforcement
may have to enforce immigration 

. If
faced with a violation by a state and local officer whose
sovereign government has a formal, written agreement with
the federal government, immigration courts would apply the
rule of Lopez-Mendoza. 

the absence of such
an agreement, those courts would be tasked with applying a
different rule, namely, the “full” exclusionary rule. 

the exclusionary rule in these settings
             would require IJs to determine the
             level of authority a given state or
             local official had to enforce
             federal immigration law and to
             decide which test applies where
             officers with different authorities
             jointly execute an immigration
             action. It is often difficult to
             define these categories with
             clarity.

(citation omitted). Placing this
burden on immigration courts would undoubtedly interrupt
these otherwise “deliberately simple” and “streamlined”




                              25
proceedings. 

. Because the
totality of these costs outweighs any marginal deterrence
supplied by the “full” exclusionary rule’s application in this
setting, we hold that the exclusionary rule is not generally
available in removal proceedings where state or local law
officers have violated the Fourth Amendment. However, we
hold that the Lopez-Mendoza exceptions also apply to state
and local officers in these proceedings.

                              D.

        With this standard in mind, we turn to the question of
whether Petitioners have established an egregious or a
widespread Fourth Amendment violation.             In removal
proceedings, the alien bears the burden of proving a prima
facie case that the evidence should be suppressed. Matter of
Tang, 13 I&N Dec. 691, 692 (BIA 1971). When the alien
satisfies his or her burden, the burden then shifts to the
Government to “justify[] the manner in which it obtained its
evidence.” 

hearing is warranted where an
alien alleges facts that state a violation of his or her Fourth
Amendment rights and shows, through an affidavit, that the
violation could be deemed to be egregious or widespread.
See Zuniga-Perez v. Sessions, 

, 125 (2d Cir.
2018); Yanez-Marquez v. Lynch, 

, 450 (4th Cir.
2015) (“A petitioner must first provide an affidavit that, taken
as true, could support a basis for excluding the evidence. If
the affidavit is sufficient, the petitioner is entitled to an
opportunity to confirm those allegations in an evidentiary
hearing.” (citations and internal quotation marks omitted)
(emphasis in original)); Maldonado v. Holder, 

,
161–61 (2d Cir. 2014) (“Petitioners were required to proffer
affidavits based on personal knowledge that, taken as true,




                              26
could support suppression.        Had their affidavits been
sufficient, they would have had an opportunity to confirm
those allegations in an evidentiary hearing.”); see also Oliva-

(“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.”).

                               1.

        Petitioners allege that Macke’s conduct was egregious
because it was “based on their Hispanic appearance and the
fact that they spoke Spanish.” Br. for Petitioners at 25.
Although they concede that “the initial stop may have been
justified because the van in which Petitioners were passengers
was allegedly speeding,” they argue that the constitutional
violation began when Macke questioned and detained them
and would not let the van leave after issuing the citations but,
instead, ordered that it be driven to the rest area to await the
ICE agents. 

       As noted above, we held in Oliva-Ramos that
“evidence will be the result of an egregious violation within
the meaning of Lopez-Mendoza, if the record evidence
established either (a) that a constitutional violation that was
fundamentally unfair had occurred, or (b) that the violation—
regardless of its unfairness—undermined the reliability of
evidence in 

. In making this
determination, we instructed “courts and agencies [to] adopt a
flexible case-by-case approach” and consider the totality of
the circumstances. 

We also laid out the
following non-exhaustive list of factors that may be




                              27
considered in this inquiry: “whether [the petitioner] 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 “whether any seizures or arrests were based on
race or perceived ethnicity.” 

       We do not agree with the IJ and the BIA that
Petitioners failed to allege a potentially egregious Fourth
Amendment violation that would warrant an evidentiary
hearing. First, as we determined above, Macke’s extension of
the stop was unreasonable and in violation of the Fourth
Amendment. Second, Petitioners’ allegations, if true, may
show an egregious Fourth Amendment violation that would
warrant application of the exclusionary rule because, as noted
above, we specifically stated in Oliva-Ramos that “whether
any seizures or arrests were based on race or perceived
ethnicity” was a consideration in determining whether an
egregious Fourth Amendment violation had occurred. 

own declarations and the declarations of other
passengers, Petitioners claim that Macke detained them and
ordered them to travel to the rest area because they “all look
Hispanic.” E.g., Calel-Espantzay A. 212. Although the
Government’s Forms I-213 assert that Petitioners “claimed to
be” citizens of other countries in their interactions with
Macke, e.g., 

the declarations submitted by
Petitioners simply state that they “did not have anything to
give him” in response to his request for “immigration papers,




                              28
work permit, visa, passport, and ID,” e.g., 

(internal
quotation marks omitted). In fact, Macke’s request, as
alleged by Petitioners, supports their claim that Macke
continued the stop because of the passengers’ Hispanic
appearance. His demand for this type of documentation, prior
to any interaction with the passengers in the rear of the van,
shows an assumption on his part that the Petitioners and other
passengers were not United States citizens, a conclusion he
could have only come to based on their appearance.

        The facts alleged by Petitioners, if supported by
evidence, could support the conclusion that the illegal
extension of the stop was solely “based on race or perceived
ethnicity.” 

. Other facts
alleged by Petitioners, if true, may also add to the
“egregiousness” calculus. See 

(instructing courts to
consider the totality of the circumstances and explaining that
the list of enumerated guiding factors is non-exhaustive).
Petitioners aver that they were refused water and food and
were not allowed to use the bathroom or turn on the van’s air
conditioning while they were detained by Macke. Depending
on the actual evidence adduced, these facts could be
considered evidence of coercion or use of force as part of the
totality of the circumstances test.

        Because Petitioners have identified a possible
egregious Fourth Amendment violation, we conclude that the
IJ erred in not granting their motion for a hearing to provide
them with an opportunity to put forth evidence in support of
their claim. However, we take no position as to the merits of
that claim. Instead, we merely conclude that Petitioners
should have been allowed to present evidence to support their
argument that the misconduct in this case is egregious and




                              29
warrants suppression. Therefore, we will remand to the BIA
to remand to the IJ for an evidentiary hearing.

                              2.

       Petitioners also allege that Fourth Amendment
violations like the one committed against them by Macke are
widespread, thereby warranting suppression in this case.
Their only supporting evidence of this—news articles
published after the agency proceedings and while this appeal
was pending that report on the allegedly “unconstitutional
traffic stops by the Pennsylvania state police targeting
Hispanic-looking men”—was not before the IJ or the BIA.
Petitioners’ Reply in Support of Motion at 2. They have
moved to supplement the record on appeal with these articles.
However, because our review is limited to “the administrative
record on which the order of removal is based,” we are barred
from reviewing them in the first instance. 4 8 U.S.C. §
1252(b)(4)(A). Instead, Petitioners may seek to introduce this
evidence on remand at the evidentiary hearing.

                             IV.

       For the reasons discussed above, we will vacate the
BIA’s February 23, 2018 orders, and we will remand to the
BIA with instructions that it grant Petitioners’ request for an
evidentiary hearing and that it conduct further proceedings
consistent with this opinion.




4
  Accordingly, we will deny Petitioners’ motions to introduce
this evidence on appeal.




                              30