Rajah v. Mukasey, No. 06-3493 (2d Cir. 2008)

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06-3493-ag, 06-3811-ag, 06-4102-ag, 06-5390 Rajah et al v. Mukasey 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2007 (Argued in Tandem: November 21, 2007 Decided: September 24, 2008) Docket Docket Docket Docket No. No. No. No. 06-3493-ag 06-3811-ag 06-4102-ag 06-5390-ag - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MOHAMED RAJAH, SAID NAJIH, SAADE BENJELLOUN, SAMER EMILE EL ZAHR, Petitioners, -v.MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES,* MICHAEL CHERTOFF, SECRETARY OF THE DEPARTMENT OF HOMELAND SECURITY, PETER SMITH, SPECIAL AGENT IN CHARGE OF THE NEW YORK DISTRICT OF U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT,** Respondents. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B e f o r e:WINTER, WALKER, and CALABRESI, Circuit Judges. 28 Petitioners are aliens who responded to the Special Call-In 29 Registration Program instituted after the terrorist attacks on 30 September 11, 2001, and were subsequently placed in deportation * Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as a respondent in this case. ** Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Special Agent in Charge Peter Smith is substituted for former Special Agent in Charge Martin Ficke as a respondent in this case. 1 1 proceedings. 2 issued by the Board of Immigration Appeals. 3 various regulatory, statutory, administrative, and constitutional 4 arguments in support of their claims. 5 below, we reject these claims and hold that the petitioners are 6 deportable, with the exception of Petitioner Rajah. 7 denied in part, granted in part. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 They petition for review of deportation orders The petitioners make For the reasons stated Petitions ANA C. POTTRATZ AND WNYONG AUSTIN, Lutheran Social Services of New York, New York, New York for Petitioners. TOM DUPREE, Deputy Assistant Attorney General for Peter D. Keisler, Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, D.C. (Song E. Park on the brief for Mr. Rajah, James A. Hunolt on the brief for Mr. Najih, Leslie McKay on the brief for Mr. El Zahr, Jesse M. Bless on the brief for Mr. Benjelloun; M. Jocelyn Lopez Wright of counsel for Mr. Rajah and Mr. Najih, Linda S. Wernery of counsel for Mr. El Zahr, David V. Bernal of counsel for Mr. Benjelloun) for Respondents. Lynn M. Kelly, Executive Director, Justice Center, New York City Bar Association, New York, New York (Linda Marie Kenepaske, Alice Morey, and Myriam Jaidi on the brief) for Amicus Curiae New York City Bar Association. WINTER, Circuit Judge: Mohamed Rajah, Said Najih, Saade Benjelloun, and Samer Emile El Zahr petition for review of deportation orders issued by the 2 1 Board of Immigration Appeals ( BIA ).1 2 to a Special Call-In Registration Program ( Program ), after the 3 terrorist attacks of September 11, 2001. 4 non-immigrant alien males over the age of 16 from designated 5 countries to appear for registration and fingerprinting. 6 Following their registration, each petitioner was placed in 7 deportation proceedings and ordered deported. 8 deportation orders principally on the grounds that: 9 Program lacks statutory authorization; Each petitioner responded The Program required They challenge the (i) the (ii) the Program is 10 invalid as a matter of administrative law; (iii) the Program 11 violates equal protection; (iv) evidence obtained during the 12 Program should be suppressed under the Fourth and Fifth 13 Amendments; and (v) regulatory violations in the course of the 14 Program require the vacating of their deportation orders. 15 petitioners make other claims specific to their cases. 16 exception of Rajah, we reject their arguments and deny the 17 petitions for review for the reasons stated below. 18 Rajah s case to the BIA on the grounds discussed by Judge 19 Calabresi, in an opinion filed concurrently with this. 20 v. Mukasey, ___ F.3d ___, No. 06-3493-ag (2d Cir. September 23, 1 Two With the We remand See Rajah Abdulraqeeb Alqaidaei also petitioned for review of a deportation order and his petition was heard in tandem with the other petitioners. After oral argument, Alqaidaei withdrew his petition for review. Alqaidaei v. Mukasey, No. 06-3494 (2d Cir. Filed July 26, 2006) (dismissed July 25, 2008). 3 1 2008). 2 I. 3 BACKGROUND After the terrorist attacks of September 11, 2001, the 4 Attorney General instituted the National Security Entry-Exit 5 Registration System ( NSEERS ). 6 of data from aliens upon entry and periodic registration of 7 certain aliens present in the United States. 8 enhance the monitoring of aliens and the enforcement of 9 immigration laws.2 NSEERS required the collection Its purpose was to The Special Call-In Registration Program was 10 part of NSEERS. It required alien males from certain designated 11 countries who were over the age of 16 and who had not qualified 12 for permanent residence to appear for registration and 13 fingerprinting and to present immigration related documents.3 2 For a description of the program s original aims, see John Ashcroft, Attorney General Prepared Remarks on the National Security Entry-Exit Registration System (June 6, 2002), http://www.usdoj.gov/archive/ag/speeches/2002/ 060502agpreparedremarks.htm. 3 The outlines of the Program were set forth in an enabling regulation that read: The Attorney General, by publication of a notice in the Federal Register, also may impose such special registration, fingerprinting, and photographing requirements upon nonimmigrant aliens who are nationals, citizens, or residents of specified countries or territories (or a designated subset of such nationals, citizens, or residents) who have already been admitted to the United States or who are 4 1 Individuals who did not appear for required registrations were 2 threatened with possible arrest. 3 Muslim majority states and North Korea. 4 include citizens of these countries who were women, were under 5 the age of 16, or were qualified to be permanent residents in 6 this country. 7 in order, registration generally had no special consequences. 8 But for those individuals, such as the petitioners, whose 9 immigration status was not in order, registration led to The affected countries were The Program did not For those individuals whose immigration status was otherwise in the United States. 8 C.F.R. 264.1(f)(4) (2003). See also Registration & Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52,584 (Dep t of Justice Aug. 12, 2002) (final rule) (promulgating the final enabling rule). The specific groups of aliens subject to registration were designated in a series of additional notices. See, e.g., Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 67,766 (Dep t of Justice Nov. 6, 2002) (notice). In all, aliens from 25 countries were subject to registration. The first group included Iran, Iraq, Libya, Sudan and Syria. Id. The second group included Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen. Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 70,526 (Dep t of Justice Nov. 22, 2002) (notice). The third group included Pakistan and Saudi Arabia. Registration of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 77,642 (Dep t of Justice Dec. 18, 2002) (notice). The fourth group included Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. Registration of Certain Nonimmigrant Aliens from Designated Countries, 68 Fed. Reg. 2,363 (Dep t of Justice Jan. 16, 2003) (notice). 5 1 deportation proceedings.4 2 Although the experiences of the petitioners varied to some 3 extent, they followed the same general pattern, deviations from 4 which will be noted where relevant. 5 consisted of a registration day and an interrogation day.5 6 their registration days, petitioners appeared at the then-INS6 7 facility at 26 Federal Plaza in New York City, filled out a few 8 forms, and presented documentation or information, such as 9 passports, immigration forms, or alien registration numbers. Their experiences typically On At 10 the end of the registration day, they were instructed to return 11 on a subsequent day on which they were interrogated. 12 interrogation days, the petitioners were generally taken to the On their 4 See Department of Homeland Security, Fact Sheet; Changes to National Security Entry/Exit Registration System (NSEERS) (2003), http://www.dhs.gov/xnews/releases/press_release_0305.shtm (last visited June 30, 2008). 5 Benjelloun was registered on April 24, 2003, and interrogated on June 17, 2003. Najih was registered on April 24, 2003, and interrogated on June 4, 2003. Rajah was registered on January 9, 2003, and interrogated on April 22, 2003. The only exception to the two-day rule is El Zahr, who was both registered and interrogated on September 5, 2003. 6 The Immigration and Naturalization Service became part of the Department of Homeland Security on March 1, 2003. Press Release, United States Department of Homeland Security, Department of Homeland Security Facts for March 1, 2003 (Feb. 28, 2003, available at http://www.dhs.gov/xnews/releases/press_ release_0100.shtm. 6 1 10th floor of 26 Federal Plaza and subjected to questioning. 2 This questioning was frequently preceded by a pat-down search and 3 often occurred in a closed room while the petitioners were seated 4 on a chair that had shackles attached, although none of the 5 petitioners were shackled. 6 Notice to Appear for removal proceedings. 7 in holding cells for a period of time. 8 9 At some point, petitioners received a Some were then placed In the removal proceedings, the petitioners argued, inter alia, that the Program was not authorized by statute and was 10 unconstitutional. 11 be terminated without prejudice to renewal due to various alleged 12 regulatory violations committed by the then-INS, discussed in 13 detail infra. 14 ultra vires and constitutional claims as outside their 15 adjudicatory powers. 16 respects, they also held that any regulatory violations that may 17 have occurred did not require termination of the proceedings or 18 suppression of any crucial evidence. 19 petitioners removable based on the information presented in the 20 course of their registration and interrogation. 21 the IJs decisions in their essential respects. 22 These petitions for review followed. 23 24 II. They also contended that their hearings should Immigration Judges ( IJs ) declined to rule on the Although the IJs opinions differed in some The IJs then found the The BIA upheld DISCUSSION Petitioners mount a variety of legal challenges to the 7 1 Program and the deportation proceedings brought against them. 2 However, no claim is made that they were, or are, in the country 3 legally or entitled to asylum or withholding of removal; it is 4 therefore undisputed that they are deportable. 5 Their challenges, then, claim that their deportation 6 proceedings were so tainted by the Program and associated events 7 that we should, for prophylactic purposes, either prevent their 8 deportation altogether, suppress evidence of their deportability 9 collected in the course of the Program, or require that the 10 deportation proceedings be rerun. 11 a) Legality of the Program 12 1) Statutory Authorization 13 Petitioners argue that the Attorney General had no statutory 14 authority to enact the Program. 15 simply rogue conduct by immigration authorities, some remedy, the 16 dimensions of which we need not address, would be called for. 17 Cf. Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991) (noting 18 that agencies that exhibit carelessness in complying with their 19 own rules undermine public confidence). 20 authorization for the Program is abundant. 21 If the Program was in fact However, statutory Title 8 U.S.C. § 1303(a)7 grants the Attorney General broad 7 8 U.S.C. § 1303(a) reads, in its entirety: Notwithstanding the provisions of sections 1301 and 1302 of this title, the Attorney General is authorized to prescribe special 8 1 power to prescribe regulations for registration and 2 fingerprinting of certain classes of aliens. 3 enumerated classes of aliens subject to such rules is a catch-all 4 provision including aliens of any other class not lawfully 5 admitted to the United States for permanent residence. 6 § 1303(a). 7 prescribed registration for a class of aliens who had not 8 qualified for permanent residency. 9 F.3d 65, 73 (1st Cir. 2006) (noting that 8 U.S.C. §§ 1305 and 10 1303(a) give[] the Attorney General great latitude in setting 11 special registration requirements ) 12 Among the 8 U.S.C. This language facially authorizes the Program, which See Kandamar v. Gonzales, 464 Petitioners note that the Program classifies on the basis of 13 nationality. They then argue that, because national-origin 14 classifications are often disfavored, see, e.g., 42 U.S.C. § 15 2000a(a) (forbidding discrimination in public accommodations 16 based on national origin), Section 1303(a) should be construed to 17 avoid such classifications. However, immigration regulation regulations and forms for the registration and fingerprinting of (1) alien crewmen, (2) holders of border-crossing identification cards, (3) aliens confined in institutions within the United States, (4) aliens under order of removal, (5) aliens who are or have been on criminal probation or criminal parole within the United States, and (6) aliens of any other class not lawfully admitted to the United States for permanent residence. 9 1 differs fundamentally from the legal contexts relied upon because 2 classifications on the basis of nationality are frequently 3 unavoidable in immigration matters. 4 399 F.3d 109, 112 (2d Cir. 2005) (discussing and upholding 5 NACARA, a statute granting preferential immigration treatment to 6 Cubans and Nicaraguans); Narenji v. Civiletti, 617 F.2d 745 (D.C. 7 Cir. 1979) (discussing and upholding registration requirements 8 targeting Iranian nationals). 9 immigration law of, inter alia, national citizenship, passports, See, e.g., Romero v. INS, Given the importance to 10 treaties, and relations between nations, the use of such 11 classifications is commonplace and almost inevitable. 12 the very concept of alien is a nationality-based 13 classification. 14 Indeed, In arguing for their proposed construction of the statute, 15 petitioners rely upon the cannon of ejusdem generis. 16 generis is an aid to statutory construction problems suggesting 17 that where general words follow a specific enumeration of persons 18 or things, the general words should be limited to persons or 19 things similar to those specifically enumerated. 20 v. Turkette, 452 U.S. 576, 581 (1981). 21 because the other categories in Section 1303(a) are all 22 immigration statuses or factors that could affect immigration 23 status, see Note 6, supra, the catch-all provision should not be 24 interpreted to authorize nationality-based distinctions. 10 Ejusdem United States Petitioners assert that, 1 Ejusdem generis has no relevance here. The list of specific 2 classes contained in Section 1303(a) contains a motley assortment 3 of groups, including alien crewmen and aliens on parole or 4 probation, so diverse that it provides no aid in construing the 5 any other class language. 6 1303(a) s clear language that allows nationality-based 7 classifications. 8 U.S.C. § 1303(a) allows the Attorney General to draw immigration 9 distinctions based on nationality). 10 Therefore, we follow Section See Narenji, 617 F.2d at 747 (finding that 8 Petitioners also assert that, because Congress has proposed 11 enforcement methods specifically targeted at terrorism, Section 12 1303(a) should not be interpreted to authorize the Program. 13 However, there is no tension whatsoever between Congress passing 14 specific laws targeting terrorism and the Attorney General using 15 broad powers granted under existing 16 end. 17 statutes toward the same A second statute authorizing the Program is Section 1305(b).8 8 The relevant portion of 8 U.S.C. § 1305 reads: (b) Current address of natives of any one or more foreign states The Attorney General may in his discretion, upon ten days notice, require the natives of any one or more foreign states, or any class or group thereof, who are within the United States and who are required to be registered under this subchapter, to notify the Attorney General of their 11 1 It empowers the Attorney General to require the natives of any 2 one or more foreign states, or any class or group thereof . . . 3 to notify the Attorney General of their current addresses and 4 furnish such additional information as the Attorney General may 5 require. 6 grant of power and, on its face, authorizes the collection of 7 information contemplated by the Program.9 8 at 73. 9 statute to information about addresses, noting that the title of This reference to additional information is a broad See Kandamar, 464 F.3d The petitioners attempt to restrict the reach of this 10 the subsection refers only to addresses. However, the title of 11 a statute . . . cannot limit the plain meaning of the text. 12 Pennsylvania Dep t of Corr. v. Yeskey, 524 U.S. 206, 212 (1988) current addresses and furnish such additional information as the Attorney General may require. The fact that the statute applies only to aliens required to be registered under this subchapter does not insulate the petitioners from its reach. Title 8 U.S.C. § 1302 is part of the same subchapter as the instant statute and requires all aliens over 14 years of age in the United States for more than 30 days to be registered and fingerprinted, absent a waiver from the Attorney General. 8 U.S.C. § 1302. The petitioners are therefore required to be registered under this subchapter, as all those within the reach of the Program are over the age of 14. 9 It is possible that the statute might be read not to authorize the gathering of information whose collection, in itself, might raise constitutional questions. But none of what was sought under the Program before us is of that sort. As a result, we express no view on such hypothetical fact gathering. 12 1 (internal quotation marks omitted). Accordingly, 8 U.S.C. § 2 1305(b) also provides authority for the Program. 3 2) Administrative Law Challenges 4 Petitioners next claim that the Program was invalidly 5 promulgated because the relevant regulations were not subject to 6 the required public notice and comment. 7 implemented in two stages. 8 General promulgated a general enabling regulation that set forth 9 a framework for alien registration but did not designate specific The Program was In the first stage, the Attorney 10 groups to be registered ( Enabling Regulation ). See 8 C.F.R. § 11 264.1(f)(4). 12 comment procedures. 13 Nonimmigrants, 67 Fed. Reg. 40,581, 40,582 (Dep t of Justice June 14 13, 2002) (proposed rule). 15 General issued notices specifying the groups to be registered 16 ( Group Specifications ). 17 Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 18 67,766 (Dep t of Justice Nov. 6, 2002) (notice). 19 Specifications designated, inter alia, the countries whose 20 nationals were subject to the Program. 21 Specifications occurred without notice and comment, which in the 22 petitioners view, was required by the Administrative Procedure 23 Act ( APA ). 24 comment requirement). The Enabling Regulation was subjected to notice and See Registration & Monitoring of Certain In the second stage, the Attorney See, e.g., Registration of Certain The Group Promulgation of the Group See 5 U.S.C. § 553 (describing the APA s notice and We disagree. 13 1 Although the Group Specifications would ordinarily be 2 subject to notice and comment procedures, these procedures were 3 not required here because the Group Specifications fell within 4 the APA s foreign affairs exemption. 5 notice and comment procedures do not apply to regulations 6 involving a military or foreign affairs function of the United 7 States. 8 public rulemaking provisions should provoke definitely 9 undesirable international consequences." 5 U.S.C. § 553(a)(1). The APA provides that For the exception to apply, the Zhang v. Slattery, 55 10 F.3d 732, 744 (2d Cir. 1995) (citation omitted), superceded by 11 statute on other grounds, by 8 U.S.C. § 1101(a)(42). 12 There are at least three definitely undesirable 13 international consequences that would follow from notice and 14 comment rulemaking. 15 be revealed in the course of explaining why some of a particular 16 nation s citizens are regarded as a threat. 17 with other countries might be impaired if the government were to 18 conduct and resolve a public debate over why some citizens of 19 particular countries were a potential danger to our security. 20 Third, the process would be slow and cumbersome, diminishing our 21 ability to collect intelligence regarding, and enhance defenses 22 in anticipation of, a potential attack by foreign terrorists. 23 Petitioners advance two principal counter-arguments. 24 they assert that the foreign affairs exception is inapplicable First, sensitive foreign intelligence might 14 Second, relations First, 1 because the regulation itself did not contain a statement of the 2 undesirable international consequences flowing from the 3 application of notice and comment review. 4 requirement that the rule itself state the undesirable 5 consequences. 6 1983) (looking to the trial record to determine whether there 7 were any definitively negative international consequences that 8 would flow from notice and comment rulemaking), vacated and rev d 9 on other grounds, 727 F.2d 957 (1984) (en banc). There is, however, no Cf. Jean v. Nelson, 711 F.2d 1455, 1478 (11th Cir. This is 10 particularly so when the consequences are seemingly as evident as 11 they are in this case. 12 Petitioners also appear to assert that there is insufficient 13 evidence that the group specification was tied to the President s 14 foreign policy. 15 Cir. 1980) (upholding immigration restrictions on Iranian 16 nationals during the hostage crisis after becoming satisfied that 17 the then-INS Commissioner was acting to further policies 18 expressed in a presidential directive and that the restrictions 19 were enacted after consultation with the Attorney General -- who 20 had in turn consulted the President about United States policy 21 toward Iran). 22 carried with regard to a connection to the President s conduct of 23 foreign affairs where the relevance to international relations is 24 facially plain, and no presumption that a cabinet officer, such Yassini v. Crosland, 618 F.2d 1356, 1361 (9th There is, however, no burden of proof to be 15 1 as the Attorney General, is acting as a rogue until proven 2 otherwise. 3 Cir. 1981) (upholding a similar INS action, reasoning that the 4 foreign relations link was obvious and quoting the INS s own 5 explanation of its activities that was published in the Federal 6 Register); see also Nademi v. INS, 679 F.2d 811, 814 (10th Cir. 7 1982). 8 stated that, in deciding which countries to designate for 9 registration, the Attorney General would confer with the See Malek-Marzban v. INS, 653 F.2d 113, 115-16 (4th Moreover, the notice announcing the enabling regulation 10 Secretary of State, an officer who is well placed to be aware of 11 the President s policy and to ensure that other officers conform 12 to it.10 13 Fed. Reg. 52,584, at 52,589 (Dep t of Justice Aug. 12, 2002) 14 (final rule). 15 3) 16 Petitioners also argue that their deportation orders violate Registration & Monitoring of Certain Nonimmigrants, 67 Equal Protection 17 their rights under the Equal Protection component of the Fifth 18 Amendment s Due Process Clause because the immigration laws were 10 The notice stated, The listing of countries from which nonimmigrant aliens will be subject to special registration is determined by the Attorney General in consultation with the Secretary of State, thereby ensuring that foreign policy implications will be considered when evaluating the possible designation of any specific country. Registration & Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52,584, at 52,589 (Dep t of Justice Aug. 12, 2002) (final rule). 16 1 selectively enforced against them based on their religion, 2 ethnicity, gender, and race. 3 U.S. 456, 464 (1996) (noting that selective prosecution claims 4 are cognizable under the Equal Protection component of the Fifth 5 Amendment s Due Process Clause); see also Bolling v. Sharpe, 347 6 U.S. 497, 499 (1954) (noting that discrimination may be so 7 unjustifiable as to be violative of [the] due process [clause of 8 the Fifth Amendment.] ) 9 based on an animus of that kind would call for some remedy. 10 Zahra v. Town of Southold, 48 F.3d 674, 683 (2d Cir. 1995) 11 (stating the general grounds on which selective enforcement 12 claims may be sustained). 13 not rule[d] out the possibility of a rare case in which the 14 alleged basis of discrimination is so outrageous that a 15 selective enforcement challenge can be allowed in a deportation 16 hearing despite the jurisdiction-stripping provisions of 8 U.S.C. 17 § 1252(g). 18 U.S. 471, 491 (1999); see also 8 U.S.C. § 1252(g) (providing that 19 no court shall have jurisdiction to hear any cause . . . on 20 behalf of any alien arising from the decision . . . by the 21 Attorney General to commence proceedings [or] adjudicate cases 22 . . . against any alien under this chapter. ). 23 24 See United States v. Armstrong, 517 We agree that a selective prosecution Cf. In that regard, the Supreme Court has Reno v. American-Arab Anti-Discrimination Comm., 525 Courts have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the 17 1 Government's political departments largely immune from judicial 2 control. 3 quotation marks omitted). 4 scrutiny that we will impose on immigration legislation is 5 rational basis review. 6 survive a constitutional challenge so long as there is a facially 7 legitimate and bona fide reason for the law. 8 F.3d 109, 111 (2d Cir. 2005) (internal quotation marks omitted). 9 Distinctions on the basis of nationality may be drawn in the 10 immigration field by the Congress or the Executive. . . . [and 11 must be upheld] [s]o long as [they] are not wholly irrational 12 . . . . 13 1979) (citations omitted). 14 Fiallo v. Bell, 430 U.S. 787, 792 (1977) (internal Indeed, [t]he most exacting level of Under this review, legislation will Romero v. INS, 399 Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. No circumstance calling for a remedy is present here. There 15 was a rational national security basis for the Program. The 16 terrorist attacks on September 11, 2001 were facilitated by the 17 lax enforcement of immigration laws. 18 Terrorist Attacks upon the U.S., 9/11 Commission Report 384 19 (2004). 20 from certain countries selected on the basis of national security 21 criteria. 22 Nonimmigrants, 67 Fed. Reg. 52,584 (Dep t of Justice Aug. 12, 23 2002) (final rule). 24 registration under the Program were neither citizens nor even See Nat l Comm n on The Program was designed to monitor more closely aliens See Registration & Monitoring of Certain The individuals subject to special 18 1 lawful permanent residents. They were asked to provide 2 information regarding their immigration status and other matters 3 relevant to national security. 4 appreciable lengths of time. 5 not valid were subject to generally applicable legal proceedings 6 to enforce pre-existing immigration laws. 7 was a plainly rational attempt to enhance national security. 8 therefore join every circuit that has considered the issue in 9 concluding that the Program does not violate Equal Protection They were not held in custody for Those whose immigration status was In sum, the Program We 10 guarantees. 11 Cir. 2006); Ali v. Gonzales, 440 F.3d 678, 681 n.4 (5th Cir. 12 2006); Zafar v. U.S. Att y Gen., 461 F.3d 1357, 1367 (11th Cir. 13 2006); Shaybob v. Att y Gen., 189 Fed. Appx. 127, 129-30 (3d Cir. 14 2006); Hadayat v. Gonzales, 458 F.3d 659 (7th Cir. 2006) (finding 15 that the court had no jurisdiction to review the claim); Malik v. 16 Gonzales, 2007 WL 98115 (4th Cir. 2007). 17 See Kandamar v. Gonzales, 464 F.3d 65, 73-74 (1st To be sure, the Program did select countries that were, with 18 the exception of North Korea, predominantly Muslim. Petitioners 19 argue, without evidence other than that fact, that the Program 20 was motivated by an improper animus toward Muslims. 21 major threat of terrorist attacks comes from radical Islamic 22 groups. 23 of immigration laws by aliens from predominantly Muslim nations. 24 The Program was clearly tailored to those facts. However, one The September 11 attacks were facilitated by violations 19 It excluded 1 males under 16 and females on the ground that military age men 2 are a greater security risk. 3 countries were not subject to registration. 4 designated countries who were qualified to be permanent residents 5 in the United States were exempted whether or not they were 6 Muslims. 7 from the designated countries were subject to registration. 8 There is therefore no basis for petitioners claim. 9 Muslims from non-specified Aliens from the The program did not target only Muslims: non-Muslims Petitioners also challenge the Program based on their 10 perception of its effectiveness and wisdom. They argue, among 11 other things, that it has not succeeded in catching many 12 terrorists. 13 Program s enhanced monitoring of aliens has disrupted or deterred 14 attacks. 15 because an ex ante rather than ex post assessment of the Program 16 is required under the rational basis test. 17 Bd. of Med. Exam rs, 66 F.3d 639, 645 (3d Cir. 1995) ( If the 18 legislature [predicts that a statute] will serve the desired 19 goal, the court is not authorized to determine whether . . . the 20 desired goal has been served. The sole permitted inquiry is 21 whether the legislature rationally might have believed . . . that 22 the desired end would be served. ) (emphasis added). 23 find that there was no circumstance present in the design and 24 implementation of the Program calling for a remedy, we conclude However, we have no way of knowing whether the In any event, such a consideration is irrelevant 20 Sammon v. New Jersey Because we 1 that the petitioners selective enforcement under 8 U.S.C. § 2 1252(g) is unavailing. 3 Comm., 525 U.S. at 490. See American-Arab Anti-Discrimination 4 4) Fourth and Fifth Amendments 5 Petitioners claim that any evidence of their deportability 6 obtained during the Program must be suppressed because it was the 7 product of violations of the Fourth and Fifth Amendments. 8 is no question that compliance with the Program was mandatory and 9 that petitioners were required to produce documents and answer There 10 questions relevant to their immigration status. 11 question that the documents produced and answers given provided 12 the evidence on which their deportation was ordered. 13 There is also no In order to prove that an alien is subject to removal for 14 overstaying his visa, DHS need only show that the alien was 15 admitted as a nonimmigrant for a temporary period, that the 16 period has elapsed, and that the nonimmigrant has not departed. 17 Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006) (internal 18 quotation marks and ellipsis omitted). 19 cases, [t]he INS must show only identity and alienage; the 20 burden then shifts to the respondent to prove the time, place and 21 manner of his entry. 22 (1984); see also 8 U.S.C. § 1361. 23 collected during the registration and interrogation phases showed In non-visa-overstay INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 21 As noted, the information 1 that each petitioner was subject to removal, and the suppression 2 of that evidence would undermine the existing deportation orders. 3 Aliens are generally subject to registration requirements as 4 a condition of obtaining a visa and entering the country and, 5 therefore, of remaining in it. 6 registration as part of most visa applications); 8 U.S.C. § 7 1304(d) (stating that all aliens who are required to register 8 will be issued proof of registration). 9 to maintain and produce required documents regarding their See 8 U.S.C. § 1201(b) (requiring Aliens are also required 10 status. See Kandamar, 464 F.3d at 74 ( Certainly, there can be 11 little doubt about DHS s authority to inspect and photograph 12 . . . passport[s] and other documentation. ). 13 aliens are issued I-94s11 on their arrival in the United States, 14 are required to keep their I-94s with them at all times, and are 15 subject to criminal penalties for failing to do so. 16 § 1304(e); United States v. Abrams, 427 F.2d 86, 91 (2d Cir. 17 1970). Most non-immigrant See 8 U.S.C. The obvious purpose of these requirements is to ensure 11 The I-94 serves as proof that the alien has validly entered the country, see Department of Customs and Border Protection, FAQs on the Arrival-Departure Record (I-94 Form) & Crewman Landing Permit (I-95 Form) (Feb. 25, 2008), http://www.cbp.gov/xp/cgov/travel/id_visa/i-94_instructions/ arrival_departure_record.xml, has complied with certain registration requirements, see 8 C.F.R. § 264.1(a) (noting that the I-94 is proof of registration), and has a right to remain for a set time period. 22 1 that an alien s I-94 will be available for inspection by 2 immigration enforcement officials under appropriate 3 circumstances. 4 aliens will possess valid passports while in the United States. 5 As a condition of admission, entering non-immigrant aliens must 6 have a passport valid for six months after the end date of their 7 authorized stay. 8 result, each of the petitioners was obligated to provide just 9 such evidence; none had the right to remain silent with regard to 10 The statutory framework also contemplates that See 8 U.S.C. § 1182(a)(7)(B)(i)(I-II). As a such matters; and none suffered a constitutional violation. 11 The Program was designed in large part to determine by an 12 updated registration the status of the specified aliens and was 13 clearly valid for reasons discussed above. 14 question had no right to remain in the country while not 15 cooperating in the Program. 16 remain silent or to decline to provide information relevant to 17 immigration status. The aliens in They, therefore, had no right to 18 In immigration proceedings, suppression of evidence is 19 available only under limited circumstances under either the 20 Fourth or Fifth Amendment. 21 violations, suppression is warranted only when the evidence 22 indicates either (a) that an egregious violation that was 23 fundamentally unfair has occurred, or (b) that the violation -- 24 regardless of its egregiousness or unfairness -- undermine[s] the With regard to Fourth Amendment 23 1 reliability of the evidence in dispute. Almeida-Amaral v. 2 Gonzales, 461 F.3d 231, 235 (2d Cir. 2006). 3 In the present matter, there was no Fourth Amendment 4 violation, much less one that was egregious or that undermined 5 the probative value of evidence collected. 6 does provide protection against random or gratuitous questioning 7 related to an individual s immigration status. 8 government agents may not stop a person for questioning regarding 9 his citizenship status without a reasonable suspicion of The Fourth Amendment For example, 10 alienage. 11 (1975); see also id. at 884 n.9 (reserving decision on whether 12 that suspicion must be of illegal alienage or may be of mere 13 alienage). 14 Amendment by obtaining documents or statements in the course of 15 an alien s compliance with a statutorily authorized registration 16 program. 17 United States v. Brignoni-Ponce, 422 U.S. 873, 884 However, the government does not violate the Fourth An alien s presence in the country is conditioned upon 18 compliance with such requirements. 19 to enforce by their very nature, would become completely 20 unenforceable if an alien, once in the country, could then refuse 21 all compliance with requests for information relevant to 22 immigration status from immigration authorities. 23 petitioners make no claim that any alleged Fourth Amendment 24 violation undermined the probative value of documents or 24 Immigration laws, difficult Moreover, 1 2 statements taken from them. Nor does the Fifth Amendment provide any grounds to suppress 3 evidence collected from the petitioners on their interview days. 4 We have noted that the Fifth Amendment protects aliens in 5 deportation proceedings from procedures that transgress the 6 fundamental notions of fair play that animate the Fifth 7 Amendment. 8 9 Montilla v. INS, 926 F.2d 162, 164 (2d Cir. 1991). However, the Fifth Amendment does not protect an alien from having to provide information relevant to the registration that 10 is a condition of their presence in the country. 11 information includes passports, I-94s, or other documents or oral 12 statements regarding their immigration status. 13 This The Fifth Amendment protects not only statements that are 14 themselves evidence of criminal violations, but also those 15 [statements] which would furnish a link in the chain of evidence 16 needed to prosecute the claimant for a federal crime. 17 States v. Hubbell, 530 U.S. 27, 38 (2000). 18 circumstances, the act of producing a document can be 19 testimonial, as when the act of producing the document is 20 evidence that the document exists. 21 Duces Tecum Dated Oct. 29, 1992, 1 F.3d 87, 93 (2d Cir. 1993). 22 Forcing an alien to perform the act of producing a foreign 23 passport, I-94, or statement regarding immigration status at 24 least arguably forces the alien to admit alienage and thus 25 United Moreover, in limited See In re Grand Jury Subpoena 1 provide possible evidence of one or more crimes involving 2 immigration violations. 3 (collecting statutes); see also 8 U.S.C. § 1302 (failure to 4 register unless exempted by the attorney general); 8 U.S.C. § 5 1306 (willful failure to register); 8 U.S.C. § 1325 (evading 6 inspection). 7 could be exposed to further investigation and subsequent 8 prosecution by producing a foreign passport, I-94, or statements 9 regarding immigration status. 10 See Lopez-Mendoza, 468 U.S. at 1038 Therefore, an alien who is not in legal status However, the Fifth Amendment does not protect the 11 petitioners either from being forced to turn over their passports 12 and I-94s or to answer questions related to their immigration 13 status. 14 enforcement of a valid civil regulatory regime. 15 three specific reasons. 16 production privilege does not cover records that are required to 17 be kept pursuant to a civil regulatory regime. 18 Jury Subpoenae Duces Tecum Dated Aug. 21, 1985, 793 F.2d 69, 73 19 (2d Cir. 1986). 20 records. 21 that if a person conducts an activity in which record-keeping is 22 required[,] . . . he may be deemed to have waived his privilege 23 with respect to the act of production - at least in cases in 24 which there is a nexus between the government's production The Fifth Amendment is not an impediment to the This is so for First, the Fifth Amendment s act of In re Two Grand The documents at issue here are such required A central rationale for the required records rule is 26 1 request and the purpose of the record-keeping requirement. 2 The petitioners in our case voluntarily entered this country on 3 the condition of maintaining the required documentation and 4 thereby waived any right they might otherwise have had to refuse 5 to produce those documents in response to immigration inquiries 6 such as the Program. 7 records not subject to the Fifth Amendment because they are a 8 mandatory part of a civil regulatory regime, so too are the 9 passports and I-94s at issue in the current case. 10 Id. Just as a taxpayer s W-2 forms are required Cf. In re Doe, 711 F.2d 1187, 1191 (2d Cir. 1983). 11 Second, the Program was a valid reporting requirement. 12 Notwithstanding the protections of the Fifth Amendment, the 13 government may require disclosure of information where the area 14 of inquiry is regulatory rather than criminal, where the field 15 subject to the disclosure obligation is not permeated with 16 criminal statutes, and where there is a substantial non- 17 prosecutorial interest served by the reporting regime. 18 States v. Dichne, 612 F.2d 632, 639-41 (2d Cir. 1979) (upholding 19 the Bank Secrecy Act, which required reporting the transportation 20 of more than $5,000 into or out of the United States). 21 these criteria are satisfied by the Program. 22 generally regulatory rather than criminal. 23 hearings are civil proceedings. 24 1032, 1038 (1984). United All of Immigration law is Indeed, deportation INS v. Lopez-Mendoza, 468 U.S. To be sure, there are some crimes related to 27 1 immigration violations. But the level of criminal regulation in 2 immigration matters is far less, and almost of a different order 3 from that which governs those areas where reporting requirements 4 have been struck down. 5 reporting requirements invalidated by the Supreme Court generally 6 required disclosure of information which would almost 7 necessarily provide the basis for criminal proceedings 8 . . . for the very activity that [the subject of the reporting 9 requirement] was required to disclose. ). See Dichne, 612 F.2d at 640 (noting that Finally, the 10 regulatory -- in contrast to criminal law enforcement -- interest 11 in the Program is evident because the Program was designed to 12 further protect national security interests by enhancing 13 immigration law enforcement. 14 as a reporting requirement not subject to Fifth Amendment 15 protections. Accordingly, the Program was valid 16 Third, because they were merely a condition on the continued 17 receipt of an immigration benefit, the statements required by the 18 program were not compelled for purposes of the Fifth Amendment. 19 We have held that statements required as a condition of receiving 20 a government benefit are not protected by the Fifth Amendment 21 because they are not compelled. 22 Health & Human Serv., 861 F.2d 14, 18 (2d Cir. 1988) (holding 23 that statements required on an application for Social Security 24 benefits are not compelled and therefore not protected). See Ciccone v. Sec y of Dep t of 28 The 1 statements required under the Program were merely a condition on 2 the continued receipt of the government benefit of being allowed 3 to remain in this country. 4 register could avoid doing so because the notices requiring 5 registration applied only to those who remained in the United 6 States after a certain date. 7 Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg. 8 67,766 (Dep t of Justice Nov. 6, 2002) (notice) (noting that the 9 reporting requirement applies only to certain nonimmigrant Any alien who did not wish to See, e.g., Registration of Certain 10 aliens from one of the countries designated in this Notice . . . 11 who will remain until at least December 16, 2002. ); Registration 12 of Certain Nonimmigrant Aliens from Designated Countries, 67 Fed. 13 Reg. 70,526 (Dep t of Justice Nov. 22, 2002) (notice); 14 Registration of Certain Nonimmigrant Aliens from Designated 15 Countries, 67 Fed. Reg. 77,642 (Dep t of Justice Dec. 18, 2002) 16 (notice); and Registration of Certain Nonimmigrant Aliens from 17 Designated Countries, 68 Fed. Reg. 2,363 (Dep t of Justice Jan. 18 16, 2003). 19 with arrest if they failed to register, this fact does not alter 20 the analysis. 21 benefit without complying with the condition -- just as someone 22 illegally receiving Social Security benefits faces arrest. 23 Although to be sure, the petitioners were illegally present in 24 the country, they enjoyed the de facto immigration benefit of Although those subject to the Program were threatened Aliens faced arrest only if they enjoyed the 29 1 residing in the United States while under the protection of many 2 of our laws. 3 Fifth Amendment privilege for the petitioners to refuse to 4 produce immigration documents or to refuse to answer questions 5 about their immigration status. For the foregoing reasons, there was therefore no 6 Of course, the foregoing discussion has no relevance to 7 government inquiries that are focused on independent crimes only 8 tangentially related to an alien s immigration status -- for 9 example, questions about drug sales that might, if a conviction 10 followed, constitute an aggravated felony requiring an alien s 11 deportation. 12 deportation of aliens who commit aggravated felonies). 13 b) 14 See 8 U.S.C. § 1227(a)(2)(A)(iii) (requiring Regulatory Violations and Remedies Petitioners argue that the INS violated a variety of its 15 regulations in the course of registering, interrogating, and 16 arresting them. 17 of the regulatory violations call for some remedy. 18 instances, the petitioners did suffer regulatory violations. 19 other instances -- for example, where there were insufficient 20 factual findings made to enable definitive review -- we assume 21 for purposes of argument that their rights under the regulations 22 were violated. 23 violation of a kind or a degree that would require suppression of 24 evidence or termination of the proceedings with or without They further argue that the existence and nature In some In In no instance, however, was a regulatory 30 1 2 3 4 prejudice to renewal. We first discuss the claimed violations. 1) Regulatory Violations A) Arrest Without Warrant: 8 C.F.R. § 287.8(c)(2)(ii) Benjelloun, Najih, and El Zahr were arrested without a 5 warrant on their investigation day. That these arrests were in 6 violation of 8 C.F.R. § 287.8(c)(2)(ii), which provides that [a] 7 warrant of arrest shall be obtained except when the designated 8 immigration officer has reason to believe that the person is 9 likely to escape before a warrant can be obtained, is not 10 seriously disputed. 11 show that he was arrested without a warrant in violation of the 12 regulations. 13 BIA, we may assume that such a violation occurred because it does 14 not affect our disposition of this matter. 15 B) Also, Rajah alleges facts that, if true, Although we have no findings on the issue from the Failure of Arresting Officer to Identify Himself 16 and Failure to State Reasons for Arrest: 17 § 287.8(c)(2)(iii) 18 19 20 21 22 23 24 25 Title 8 C.F.R. § 287.8(c)(2)(iii) provides: (iii) At the time of the arrest, the designated immigration officer shall, as soon as it is practical and safe to do so: (A) Identify himself or herself as an immigration officer who is 31 8 C.F.R. 1 2 3 4 5 6 7 8 9 authorized to execute an arrest; and (B) State that the person is under arrest and the reason for the arrest. Three of the petitioners -- Najih, El Zahr, and Benjelloun -- can either show, or allege facts that, if proven, would show, 10 a violation of this Section. 11 of their arrest until after substantial questioning had occurred, 12 and Benjelloun may not have been informed of his arrest at all. 13 Rajah does not argue that his rights under this section were 14 violated. 15 Najih and El Zahr were not informed With respect to Najih, Benjelloun and El Zahr, the IJs found 16 that this regulation was not violated because the petitioners 17 received various forms from the INS indicating that they were 18 being arrested and why they were being arrested at some point on 19 their interrogation day. 20 practical and safe to provide notice once the petitioners 21 reached the 10th floor of 26 Federal Plaza. 22 questioning aliens in the agency s own building in an environment 23 it controlled. 24 long afterwards -- the petitioners were searched. 25 compelling reason to the contrary in a particular case, notice of However, it may be that it was The agents were Before being admitted to the 10th floor -- or not 32 Absent a 1 arrest could easily have been provided shortly after each 2 petitioner reached the 10th floor rather than after questioning 3 had continued for some time. 4 was violated. 5 6 7 C) We therefore assume the regulation Post Arrest Exam by Arresting Officer: 8 C.F.R. 287.3(a) Two of the petitioners -- Najih and Rajah -- challenge 8 rulings by the IJs that their rights under 8 C.F.R. § 287.3(a) 9 were not violated. 10 11 12 13 14 15 16 17 18 19 20 Title 8 C.F.R. § 287.3(a) provides: An alien arrested without a warrant of arrest . . . will be examined by an officer other than the arresting officer. If no other qualified officer is readily available and the taking of the alien before another officer would entail unnecessary delay, the arresting officer, if the conduct of such examination is a part of the duties assigned to him or her, may examine the alien. It is not clear which party bears the burden of showing 21 whether there was an officer, other than the arresting officer, 22 available to conduct the examination. 23 agency seems unreasonable. 24 otherwise occupied would require that the agency record in great 25 detail and contemporaneously the actions of every officer at a 26 given location during every working period. 27 on the alien also seems unreasonable. 28 learn of the idleness of immigration officers. Putting the burden on the Demonstrating that all officers were 33 Putting the burden Arrested aliens cannot In any event, we 1 need not determine where the burden lies because we may assume, 2 for purposes of argument, that this regulation was violated with 3 respect to all of the petitioners. 4 D) 5 Right to Counsel at Examination: 8 C.F.R. § 292.5(b) 6 Title 8 C.F.R. § 292.5(b) provides that: [w]henever an 7 examination is provided for in this chapter, the person involved 8 shall have the right to be represented by an attorney or 9 representative . . . . Although the petitioners allege that 10 attorneys were not permitted on the 10th floor, none of the 11 petitioners claims to have brought an attorney to his 12 examination. 13 was not permitted to accompany him to the 10th floor. 14 true, this is not a violation, because she was neither an 15 attorney nor a representative as specified in the regulations. 16 See 8 C.F.R. 292.1(a). 17 E) 18 El Zahr claims that his Salvation Army caseworker Coercion: Even if 8 C.F.R. § 287.8(c)(2)(vii) Title 8 C.F.R. § 287.8(c)(2)(vii) provides that [t]he use 19 of threats, coercion, or physical abuse by the designated 20 immigration officer to induce a suspect to waive his or her 21 rights or to make a statement is prohibited. 22 Determining when coercion has occurred is a fact-specific 34 1 inquiry. In re Garcia, 17 I. & N. Dec. 319, 320 (BIA 1980) 2 (confession was involuntary when an alien was misinformed about 3 his rights, his attempts to contact his lawyer were interfered 4 with, and he spent substantial time in custody). 5 INS, 568 F.2d 803, 810 (1st Cir. 1977) (statements given by an 6 alien arrested in the middle of the night, actively misinformed 7 about her rights, and threatened with imminent deportation were 8 involuntary). 9 Cir. 1960) (an alien s statements were involuntary when he was Navia-Duran v. Bong Youn Choy v. Barber, 279 F.2d 642, 647 (9th 10 interrogated for seven hours, lasting into the early morning 11 hours, and threatened with prosecution for perjury). 12 No petitioner claims to have either waived a right or made a 13 statement as a result of such coercion. 14 language prohibits coercive conduct undertaken with a motive of 15 seeking to elicit such a waiver or statement whether or not the 16 conduct succeeds. 17 coercive conduct with the prohibited intent violates the 18 regulation, it does not affect our disposition of this matter. 19 However, the regulatory Because we may assume that unproductive Each petitioner claims that the entire Program was coercive 20 -- including both the registration and interrogation days. 21 petitioners experiences during their registration days entailed 22 nothing coercive for purposes of the regulation. 35 The They were asked 1 questions relevant to the Program by government officers and gave 2 relevant statements or documents in response to those questions. 3 As discussed infra, they had no right to remain silent or 4 otherwise be uncooperative. 5 have endured long waits before their interviews, been interviewed 6 under threat of criminal sanctions, and sometimes may have been 7 subject to impolite treatment, none of these conditions rises to 8 the level of coercion. 9 unfortunate, but not uncommon, characteristics of many ordinary Although the petitioners often may Impoliteness and slow service are 10 interactions with government agencies, such as, for example, 11 registering a motor vehicle. 12 sanctions for willfully failing to provide required regulatory 13 information does not make providing the information coercive in 14 the sense of the regulation any more than laws prohibiting 15 willful failure to file a tax return make the filing of a return 16 a product of impermissible coercion. 17 Moreover, the threat of criminal Turning to the interrogation days, neither Benjelloun, 18 Najih, nor Rajah were coerced. 19 the kind of circumstances that prior courts have found coercive, 20 such as marathon questioning or misinformation as to their 21 rights. 22 23 Their questioning did not involve El Zahr s interrogation lasted seven hours but was interrupted twice when he was put in a cell, each time for short 36 1 periods of time. For much of the time he was interrogated, he 2 was not told why the interrogation was taking place. 3 explicitly threatened or given misinformation about his rights. 4 The IJ found the length of the interrogation to be coercive. He was not 5 2. Remedies 6 We may, therefore, assume that significant regulatory 7 violations took place with regard to each of the petitioners 8 during the interrogation/arrest phase. We turn now to the 9 possible remedies for such violations: (i) invalidation of the 10 deportation orders with prejudice; (ii) suppression of all 11 evidence obtained during the registration and interrogation 12 phases; and (iii) terminating the deportation proceedings without 13 prejudice to the starting of new deportation proceedings. 14 15 16 A) Invalidation of the Deportation Orders with Prejudice We may assume, without deciding, that a regulatory violation 17 or violations so egregious as to shock the conscience would call 18 for invalidation of the deportation orders with prejudice to the 19 renewal of deportation proceedings against a petitioner whose 20 rights were violated. 21 231, 234 (2d Cir. 2006) (authorizing exclusion of evidence for, 22 inter alia, egregious Fourth Amendment violations). Cf. Almeida-Amaral v. Gonzales, 461 F.3d 37 By way of 1 contrast, conduct of a less culpable nature would not suffice to 2 justify the draconian remedy of permanently preventing the 3 deportation of an otherwise deportable alien. 4 None of the violations here approached such a level of 5 egregiousness. Warrantless arrests were made, but, when made, 6 there was a powerful showing of probable cause -- in fact, 7 conclusive evidence of deportability. 8 petitioners of their arrest and reasons for it was entirely 9 harmless, and the interrogation of El Zahr, while undoubtedly The failure to inform some 10 unpleasant, did not rise beyond the level of being long and 11 tiresome. 12 13 B) Suppression of Evidence As noted earlier, we have held that suppression of evidence 14 in immigration proceedings is warranted when an egregious or 15 fundamentally unfair violation of applicable law occurred or when 16 a violation of applicable law undermines the reliability of the 17 evidence in question. 18 Again, none of the regulatory violations here were egregious or 19 fundamentally unfair or impaired the reliability of the evidence 20 of petitioners deportability. 21 See Almeida-Amaral, 461 F.3d at 234. The BIA s jurisprudence may differ somewhat. Under its 22 caselaw, for regulatory violations not impacting fundamental 23 rights, suppression is generally only available when (i) the 38 1 regulation was for the benefit of the alien, and (ii) the 2 violation prejudiced the alien. 3 Dec. 325, 327-28 (BIA 1980). 4 no reason to believe that the BIA failed to properly apply its 5 own standards. 6 7 C) In re Garcia-Flores, 17 I. & N. On the record before us, there is Termination Without Prejudice Petitioners argue that their deportation proceedings should 8 be terminated without prejudice to renewal as a result of the 9 pre-hearing regulatory violations described above. 10 We have held that regulatory violations occurring during a 11 deportation hearing that affect fundamental rights derived from 12 the Constitution or federal statutes require such termination, 13 even without a showing of prejudice. 14 (requiring termination even when the regulatory violation caused 15 no prejudice); Waldron v. United States, 17 F.3d 511, 518 (2d 16 Cir. 1993) (clarifying that Montilla applies only to cases 17 implicating fundamental rights derived from federal statutes or 18 the Constitution). 19 egregious, harmless regulatory violation occurring prior to a 20 hearing requires termination. Montilla, 926 F.2d at 170 However, we have never decided whether a non- 21 We hold that pre-hearing regulatory violations are not 22 grounds for termination, absent prejudice that may have affected 23 the outcome of the proceeding, conscience-shocking conduct, or a 24 deprivation of fundamental rights. 39 With regard to termination, 1 we have sought to strike a balance between protecting the rights 2 of aliens, deterring government misconduct, and enabling 3 reasonably efficient law enforcement. 4 168-69; Waldron, 17 F.3d at 518. 5 egregious, pre-hearing violations, termination would provide no 6 benefit other than a windfall delay to the deportable alien. 7 Unlike a violation occurring during a hearing, the alien s second 8 deportation hearing would be no more fair than, or even different 9 from, the first. See Montilla, 926 F.2d In the case of harmless, non- Similarly, there are no societal benefits from 10 entitling deportable aliens to extend their time in the United 11 States because of harmless technical violations of regulations in 12 the pre-hearing phase. 13 With regard to deterrence and efficiency, termination for 14 pre-hearing regulatory violations would have little deterrent 15 effect, and the resulting burden on enforcement operations would 16 be substantial. 17 to significant resource constraints. 18 litigate every regulatory dispute, no matter how harmless or 19 technical, as a routine part of deportation proceedings would 20 impose a burden of far greater magnitude than any benefit to be 21 gained. The enforcement of immigration laws is subject Forcing the system to 22 In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Court 23 denied suppression for routine Fourth Amendment violations in 24 deportation proceedings because, inter alia, an exclusionary rule 40 1 would provide little deterrent effect at a great administrative 2 cost. 3 fraction of deportation cases actually resulted in hearings 4 rather than voluntary departures, any violation would so rarely 5 harm a case that an exclusionary rule would be unlikely to shape 6 agents behavior. 7 litigating the conduct surrounding an arrest would impose an 8 intolerable administrative burden on the immigration enforcement 9 system. The Court reasoned, in part, that because only a small Id. at 1044. The Court also noted that Given that officers may arrest several aliens per day, 10 they cannot be expected to compile elaborate, contemporaneous, 11 written reports detailing the circumstances of every arrest. 12 Id. at 1049. 13 simplicity and efficiency, would become immensely complicated if 14 testimony had to be heard on the detailed circumstances of each 15 arrest. 16 Moreover, deportation hearings, which depend on Id. at 1049. The tradeoffs in our case are similar. Given the dimensions 17 of the problems in immigration enforcement, arresting officers 18 cannot be expected even to remember each arrest, much less the 19 precise details of what happened and what was said. 20 enormously decrease the productivity of such officers to require 21 them to compile extensive contemporaneous documentation regarding 22 the details of each investigation and arrest of an alien solely 23 to rebut allegations of technical, non-prejudicial regulatory 24 violations made well after their memory of events had faded. 41 It would Nor 1 would the deterrent effect of a termination-without-prejudice 2 remedy be potent given the rarity of formal hearings where such 3 violations would affect an immigration officer s enforcement 4 record and the prospect that such hearings could simply be re- 5 run. 6 violations promises a substantial drain on agency resources with 7 little gain in immigrants significant rights under the 8 regulations. 9 In short, using termination as a remedy for pre-hearing It may be that the Montilla/Waldron rule grants remands 10 somewhat more liberally for regulatory violations than the rule 11 that we adopt. 12 frequently for regulatory violations occurring during a hearing 13 because such remands impose a far smaller burden on the agency. 14 For regulatory violations during hearings, there is a trial 15 transcript documenting the proceedings and little need for 16 witnesses or additional documentation. 17 have limited relief to violations of fundamental rights. 18 But it makes sense to grant remands more Even there, however, we Accordingly, we hold that aliens are not entitled to 19 termination of their proceedings for harmless, non-egregious pre- 20 hearing regulatory violations. 21 before us, and we, therefore, reject the petitioners claims for 22 termination without prejudice. 23 c) 24 Those are the circumstances Individual Claims Najih and Rajah raise additional claims specific to the 42 1 facts of their cases. 2 Rajah s claim is discussed in Judge Calabresi s opinion also 3 issued today. 4 Najih s claims are treated here while Najih claims that there was insufficient evidence to find 5 him removable because the IJ relied on documents attached to the 6 government s brief that were not formally admitted into evidence, 7 never made him plead to the charge, and never held a formal 8 evidentiary hearing on his removability. 9 that the evidence relied on by the IJ and the BIA was actually Najih does not argue 10 flawed; rather he claims that because of these procedural 11 defects, no evidence of his removability was ever properly 12 presented. 13 Though informal, the procedure followed below was not so 14 erroneous as to merit a remand. With regard to the documents on 15 which the IJ relied to establish deportability, the BIA found 16 that the IJ effectively admitted them when he accepted the 17 government s brief. 18 indicating that this procedure is improper. 19 to have prejudiced him in any way. 20 documents is not challenged, and he had notice that the IJ 21 believed they were sufficient to establish a prima facie case of 22 removability and sustain the charge in the [notice to appear] 23 when the IJ ruled on his termination motion. 24 on notice that he should raise any issues regarding the documents Najih points to no specific authority 43 Nor does it appear The authenticity of the Najih was therefore 1 and failed to do so. 2 With regard to the IJ s failure to make Najih plead, the 3 regulations provide that [t]he immigration judge shall require 4 the respondent to plead to the notice to appear by stating 5 whether he or she admits or denies the factual allegations and 6 his or her removability . . . . 8 C.F.R. § 1240.10(c). 7 However, no remand is warranted. Najih twice refused to plead, 8 preferring to press only his motion for termination. 9 is therefore forfeited. 10 This claim With regard to the holding of an evidentiary hearing, the 11 regulations state that the IJ shall receive evidence as to any 12 unresolved issues, except that no further evidence need be 13 received as to any facts admitted during the pleading. 14 § 1240.10(d). 15 the government s brief, the lack of any dispute about their 16 authenticity and reliability, and the conclusiveness of the 17 documents as to Najih s immigration status, there were no 18 unresolved issues regarding Najih s removability and hence no 19 need for a hearing. 20 procedural claims merit a remand. 21 III. 22 8 C.F.R. Given the presence of the documents attached to For these reasons, none of Najih s CONCLUSION For the foregoing reasons, the petitions for review are 23 denied with the exception of petitioner Rajah whose case is 24 remanded according to the opinion by Judge Calabresi. 44

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