Jose Pretzantzin, et al. v. Holder, No. 11-2867 (2d Cir. 2013)

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This opinion or order relates to an opinion or order originally issued on July 31, 2013.

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11-2867-ag Jose Pretzantzin, et al. v. Holder 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 28 29 30 31 32 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: Thursday, March 14, 2013 Decided: July 31, 2013 Amended: September 16, 2013) Docket No. 11-2867-ag JOSE MATIAS PRETZANTZIN, AKA JOSE M. PRETZANTZIN-YAX, PACHECO PRETZANTZIN, AKA SANTOS RAMIRO PRETZANTZIN, PEDRO ESTANISLADO PRETZANTZIN, PEDRO LEONARDO PACHECO LOPEZ, JUAN MIGUEL PRETZANTLIN-YAX, AKA JUAN MIGUEL PRETZANTZIN-YAX, Petitioners, v. ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent.* Before: WESLEY, DRONEY, Circuit Judges, NATHAN, District Judge.** * The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated above. ** The Honorable Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation. 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 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 Petitioners appeal from the December 17, 2010 decision of the Board of Immigration Appeals (the BIA ) reversing the Immigration Judge s prior grant of Petitioners motion to suppress evidence obtained in egregious violation of Petitioners Fourth Amendment rights and terminate their removal proceedings. The BIA determined that evidence of Petitioners identities was not suppressible under the Supreme Court s decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), and that, in any event, the Government had acquired independent evidence of alienage by obtaining Petitioners birth certificates. Because we find that Lopez-Mendoza confirmed an existing jurisdictional rule, rather than announcing a new evidentiary rule, the BIA erred in concluding that the Government had met its burden of establishing that certain alienage-related evidence had been obtained independent of any constitutional violation. The Government having had the opportunity to show that the alienage-related evidence was obtained from an independent source, and having explicitly chosen not to do so, we VACATE and REMAND the BIA s decision with instructions to reach only the issue of whether Government agents seized evidence of alienage from Petitioners in the course of committing an egregious Fourth Amendment violation. VACATED AND REMANDED. ANNE PILSBURY (Heather Y. Axford, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioners. MATTHEW GEORGE, Trial Attorney, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Assistant Director, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, DC, for Respondent. Elaine J. Goldenberg, Matthew E. Price, Jenner & Block LLP, Washington, DC; Omar C. Jadwat, American Civil Liberties Union Foundation, Immigrants Rights Project, New York, NY, for 2 1 2 3 4 5 Amicus Curiae American Civil Liberties Union Foundation. WESLEY, Circuit Judge: In the early morning hours of March 5, 2007, Petitioner 6 Pedro Estanislado Pretzantzin ( Estanislado Pretzantzin ) 7 awoke to a loud banging; he opened his third-floor bedroom 8 window to see a group of armed, uniformed officers at his 9 apartment building s front door in Jamaica, New York.1 10 officers were from the Department of Homeland Security 11 ( DHS ) and worked for Immigrations and Customs Enforcement 12 ( ICE ). 13 members of his extended family, including Petitioners Jose 14 Matias Pretzantzin, Pacheco Pretzantzin, Pedro Pacheco-Lopez 15 ( Pacheco-Lopez ), and Juan Miguel Pretzantlin-Yax.2 16 Through the open window, the officers informed Estanislado 17 Pretzantzin that they were the police and ordered him The Estanislado Pretzantzin shared the apartment with 18 1 The factual record in this case is somewhat sparse because the Government declined to make an evidentiary proffer concerning the circumstances of Petitioners arrests. The following facts are taken from Petitioners testimony and supporting affidavits, which the agency found credible. 2 Santiago Pretzantzin-Yax has since voluntarily left the United States; he is not a petitioner for purposes of this appeal. 3 1 downstairs to open the door. 2 complied. 3 Estanislado Pretzantzin After confirming that he lived on the third floor, one 4 of the officers led Estanislado Pretzantzin back upstairs 5 and ordered him to allow the other officers inside. 6 point during the encounter did the officers explain their 7 presence, present a warrant, or request consent to enter the 8 apartment. 9 remaining Petitioners, who were asleep in their beds, At no Once inside, ICE officers rounded up the 10 assembled them in the living room, and demanded to see their 11 papers. 12 Petitioner who had a passport was able to comply with the 13 officers directive. 14 Pretzantzin whether he had legal status in the United States 15 before arresting him. 16 It appears that only Pacheco-Lopez the sole The officers did not ask Estanislado All Petitioners were handcuffed and transported to ICE 17 facilities at 26 Federal Plaza, in New York City, where they 18 were notified for the first time that they were in the 19 custody of immigration officials. 20 Petitioners and told them to sign statements that were not 21 read to them in English (which Petitioners speak minimally 22 if at all); these statements were subsequently memorialized 4 ICE officers interviewed 1 on Form I-213s (Record of Deportable/Inadmissible Alien). 2 Petitioners were released from custody later that afternoon 3 and served with Notices to Appear, charging them with 4 removability under Immigration and Nationality Act ( INA ) § 5 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as natives and 6 citizens of Guatemala who had entered the United States 7 without inspection. 8 Following consolidation of their proceedings, 9 Petitioners appeared before Immigration Judge George T. Chew 10 (the IJ ) and conceded that they were the individuals named 11 in the Notices to Appear, but denied the charges of 12 removability and moved to suppress the evidence against them 13 and terminate their proceedings. 14 they were entitled to the suppression of all statements and 15 evidence obtained as a consequence of the nighttime, 16 warrantless raid of their home under the Fourth and Fifth 17 Amendments. 18 alia, that it possessed independent evidence of Petitioners 19 alienage. 20 obtained Petitioners Guatemalan birth certificates from the 21 United States Embassy in Guatemala using Petitioners names, 22 and that it also had Petitioner Pacheco-Lopez s criminal Petitioners argued that In opposition, the Government argued, inter Specifically, the Government claimed that it had 5 1 history report, arrest record, and fingerprint card from a 2 1994 theft of services conviction for subway-turnstile 3 jumping. 4 Lopez s birthplace. 5 The arrest report listed Guatemala as Pacheco- The Government ostensibly relied on the admission in 6 Petitioners motion to suppress (indicating that Petitioners 7 were related) and Pacheco-Lopez s arrest records (confirming 8 that he was born in Guatemala) to target the United States 9 Embassy in Guatemala for the birth certificate request. In 10 connection with Petitioners birth certificates, the 11 Government proffered a Federal Express delivery record label 12 for a package sent from ICE s facilities at 26 Federal Plaza 13 to the United States Embassy in Guatemala, but it did not 14 submit a copy of the actual birth certificate request or any 15 other evidence bearing on the package s contents. 16 Petitioners testimony at a subsequent suppression hearing,3 17 the IJ invited the Government to proffer a warrant, 18 statements from the officers, or any other evidence to 19 justify their intrusion into Petitioners home. 20 Government, however, declined to do so and explicitly 3 Following The Pacheco-Lopez and Estanislado Pretzantzin were the only Petitioners to testify at the merits hearing. The IJ found their testimony credible and declined to take additional testimony from the remaining Petitioners, concluding that it would be repetitive. 6 1 disavowed any reliance on Petitioners Form I-213s, choosing 2 to rely instead on Petitioners birth certificates and 3 Pacheco-Lopez s arrest records as the sole evidence of 4 alienage. 5 In June 2008, the IJ granted Petitioners motion to 6 suppress the Government s evidence of alienage and terminate 7 the proceedings, finding that the nighttime, warrantless 8 entry into their home and resulting arrests constituted an 9 egregious violation of Petitioners Fourth and Fifth 10 Amendment rights. Having found Petitioners testimony and 11 supporting affidavits sufficient to establish a prima facie 12 case for suppression, the IJ reasoned that the Government s 13 failure to offer any justification for the conduct of its 14 agents resolved the issue in Petitioners favor. 15 also rejected the Government s contention that Petitioners 16 birth certificates and Pacheco-Lopez s arrest records 17 constituted independent evidence of alienage, finding that 18 this evidence could only have been obtained through the use 19 of evidence illegally procured as a result of the raid of 20 Petitioners home, namely, Pacheco-Lopez s passport and 21 Petitioners statements. 22 7 The IJ 1 The Government appealed. In a December 17, 2010 order, 2 the BIA vacated the IJ s decision. 3 Pretzantizin, et al., Nos. A097 535 298/296/297/299/300/301 4 (B.I.A. Dec. 17, 2010). 5 468 U.S. 1032 (1984), for the proposition that identity is 6 never suppressible as the fruit of an unlawful arrest, the 7 BIA found that it need not determine whether Petitioners 8 suffered an egregious violation of their constitutional 9 rights because their birth certificates and Pacheco-Lopez s In re Jose Matias Relying on INS v. Lopez-Mendoza, 10 arrest records were obtained after the Government had 11 determined their identities. 12 Petitioners birth certificates were obtained from 13 Guatemalan authorities using Petitioners insuppressible 14 identities; the BIA offered no similar justification for the 15 independence of Pacheco-Lopez s arrest records. 16 although the Government had expressly declined to rely on 17 Petitioners Form I-213s before the IJ, the BIA found this 18 evidence admissible because Petitioners had not argued that 19 their statements were untrue or unreliable. 20 Pretzantizin, A097 535 298, at 2. 21 22 The BIA explained that Lastly, In re Petitioners were subsequently ordered removed to Guatemala and have timely petitioned for review. 8 1 Discussion4 2 The general rule in a criminal proceeding is that 3 statements and other evidence obtained as a result of an 4 unlawful, warrantless arrest are suppressible if the link 5 between the evidence and the unlawful conduct is not too 6 attenuated. 7 Wong Sun v. United States, 371 U.S. 471 (1963)). 8 exclusionary sanction applies to any fruits of a 9 constitutional violation whether such evidence be Lopez-Mendoza, 468 U.S. at 1040-41 (citing [T]he 10 tangible, physical material actually seized in an illegal 11 search, items observed or words overheard in the course of 12 the unlawful activity, or confessions or statements of the 13 accused obtained during an illegal arrest and detention. 14 United States v. Crews, 445 U.S. 463, 470 (1980) (internal 15 citations omitted). 16 however, the applicability of the exclusionary rule becomes 17 less certain. Outside of the criminal context, Lopez-Mendoza, 468 U.S. at 1041. 18 4 The standards of review here are neither contested nor determinative. We review only the decision of the BIA reversing the IJ s grant of suppression and termination, see Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), and review the agency s factual findings for substantial evidence and issues of law de novo. See 8 U.S.C. § 1252(b)(4)(B); Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006). 9 1 In Lopez-Mendoza, the Supreme Court held that a Fourth 2 Amendment violation does not, standing alone, justify the 3 suppression of evidence in the course of a civil deportation 4 proceeding, id. at 1050; this Court has since interpreted 5 Lopez-Mendoza to allow suppression following an egregious 6 violation, see Almeida-Amaral v. Gonzalez, 461 F.3d 231, 235 7 (2d Cir. 2006). 8 argued in tandem with the case at bar, Doroteo Sicajau 9 Cotzojay v. Holder, No. 11-4916-ag, F.3d , (2d Cir. Today, as discussed in a companion case 10 2013), we confirm what the BIA and other courts have already 11 recognized: 12 home by government officials may, and frequently will, 13 constitute an egregious violation of the Fourth Amendment 14 requiring the application of the exclusionary rule in a 15 civil deportation hearing. 16 A097 535 291 (B.I.A. June 14, 2011);5 Oliva-Ramos v. Att y 17 Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012). 18 A nighttime, warrantless raid of a person s See Matter of Guevara-Mata, No. In the instant case, the BIA did not reach the question 19 of whether there was an egregious violation of the Fourth 20 Amendment, but instead predicated its reversal of the IJ s 5 Available at cision-Guevara-Mata.pdf. 10 1 grant of suppression on a finding that Petitioners birth 2 certificates and Pacheco-Lopez s arrest records were 3 independently obtained through the use of only their names. 4 To reach this result, the BIA relied on Lopez-Mendoza s 5 statement that [t]he body or identity of a defendant or 6 respondent in a criminal or civil proceeding is never itself 7 suppressible as a fruit of an unlawful arrest, 468 U.S. at 8 1039 ( Lopez-Mendoza s identity statement ). 9 is to discern the meaning of this statement that has The task then 10 bedeviled and divided our sister circuits. United States 11 v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007).6 12 the reasons that follow, we join the Fourth, Eighth, and 13 Tenth Circuits in finding that Lopez-Mendoza reaffirmed a 14 long-standing rule of personal jurisdiction; it did not 15 create an evidentiary rule insulating specific pieces of 16 identity-related evidence from suppression. For 17 6 See Oscar-Torres, 507 F.3d at 228 (comparing United States v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006) (interpreting Lopez-Mendoza as merely reiterating long-standing jurisdictional rule), and United States v. Guevara-Martinez, 262 F.3d 751, 754-55 (8th Cir. 2001) (same), with United States v. Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006) (interpreting LopezMendoza as barring suppression of evidence of identity), United States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005) (same), and United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999) (same)). 11 1 INS v. Lopez-Mendoza 2 The jurisdictional nature of Lopez-Mendoza s identity 3 statement is evidenced by both the context in which it was 4 made and the authority upon which it relied. 5 Mendoza, the Supreme Court reviewed challenges in two civil 6 deportation proceedings, each of which were commenced 7 following unlawful arrests. 8 proceeding, respondent Adan Lopez-Mendoza did not seek 9 suppression of any specific piece of evidence and, instead, 468 U.S. at 1034. In Lopez- In the first 10 objected only to the fact that he had been summoned to a 11 deportation hearing following an unlawful arrest. 12 1040. 13 Mendoza s challenge to the validity of the proceedings 14 against him because [t]he mere fact of an illegal arrest 15 has no bearing on a subsequent deportation proceeding. 16 (alteration in original and internal quotation marks 17 omitted). 18 stated that [t]he body or identity of a defendant or 19 respondent in a criminal or civil proceeding is never itself 20 suppressible as a fruit of an unlawful arrest, even if it is 21 conceded that an unlawful arrest, search, or interrogation 22 occurred. Id. at The Supreme Court easily dispensed with Lopez- Id. It was in this context that the Supreme Court Id. at 1039 (citations omitted). 12 1 In the second proceeding, respondent Elias Sandoval- 2 Sanchez moved to suppress his Form I-213 (Record of 3 Deportable/Inadmissible Alien), which memorialized 4 incriminating post-arrest statements relating to his 5 immigration status and place of birth. 6 1040; Lopez-Mendoza v. INS, 705 F.2d 1059, 1062 (9th Cir. 7 1983), rev d, 468 U.S. 1032 (1984). 8 Sandoval-Sanchez had a more substantial claim because 9 [h]e objected not to his compelled presence at a Id. at 1037-38, The Court observed that 10 deportation proceeding, but to evidence offered at that 11 proceeding. 12 considered whether the exclusionary rule should apply to 13 prohibit the Government from using illegally obtained 14 evidence of Sandoval-Sanchez s alienage against him in 15 deportation proceedings. 16 ultimately found the exclusionary rule inapplicable in 17 Sandoval-Sanchez s case after weighing the likely social 18 benefits and costs pursuant to the framework established in 19 United States v. Janis, 428 U.S. 433 (1976). 20 468 U.S. at 1050. 21 468 U.S. at 1040. Accordingly, the Court Id. at 1040-41. The Court Lopez-Mendoza, The Court s differing treatment of Lopez-Mendoza s 22 personal jurisdiction challenge and Sandoval-Sanchez s 23 evidentiary challenge, and the corresponding omission of any 13 1 identity-related considerations from the evaluation of the 2 latter claim, show that Lopez-Mendoza s identity statement 3 merely confirmed the jurisdictional rule that an unlawful 4 arrest has no bearing on the validity of a subsequent 5 proceeding; the Court did not announce a new rule insulating 6 all identity-related evidence from suppression. 7 Torres, 507 F.3d at 228-29; United States v. 8 Olivares-Rangel, 458 F.3d 1104, 1111 (10th Cir. 2006); 9 United States v. Guevara-Martinez, 262 F.3d 751, 754 (8th See Oscar- 10 Cir. 2001). 11 statement applicable to both criminal and civil 12 proceedings, 486 U.S. at 1039-40 was intended as a rule of 13 evidence, it would have been impracticable for the Court to 14 employ a cost-benefit analysis in deciding whether to apply 15 the exclusionary rule to Sandoval-Sanchez s civil 16 deportation proceedings without first determining whether 17 the statements he sought to suppress were identity-related 18 evidence. 19 After all, if Lopez-Mendoza s identity The jurisdictional nature of Lopez-Mendoza s identity 20 statement is further evidenced by the authorities it 21 employed, which relate to the long-standing Ker-Frisbie 22 doctrine providing that an illegal arrest does not divest 23 the trial court of jurisdiction over the defendant or 14 1 otherwise preclude trial. 2 alia, Frisbie v. Collins, 342 U.S. 519, 522 (1952) and 3 Gerstein v. Pugh, 420 U.S. 103, 119 (1975)); see also 4 Olivares-Rangel, 458 F.3d at 1110-11 (recognizing Lopez- 5 Mendoza s identity statement as an application of the Ker- 6 Frisbie doctrine); accord Oscar-Torres, 507 F.3d at 228-29. 7 In Ker v. Illinois, the Supreme Court first considered the 8 effect of an unlawful taking of custody on the validity of a 9 subsequent proceeding; the Court concluded that due process 10 was not violated when a defendant was kidnaped in Peru and 11 forcibly returned to Illinois to stand trial. 12 438-40 (1886). 13 employed to bring the defendant before the court; it 14 governed what happened once he was there. 15 reasoned that due process is complied with when the party 16 is regularly indicted by the proper grand jury in the state 17 court, has a trial according to the forms and modes 18 prescribed for such trials, and when, in that trial and 19 proceedings, he is deprived of no rights to which he is 20 lawfully entitled. 21 See id. at 1039-40 (citing, inter 119 U.S. 436, Due process did not restrict the methods The Court Id. at 440. More than sixty years later, in Frisbie, the Supreme 22 Court refused to depart from Ker when faced with a due 23 process challenge by a defendant who was abducted in 15 1 Illinois and taken to Michigan for trial, noting that 2 [t]here is nothing in the Constitution that requires a 3 court to permit a guilty person rightfully convicted to 4 escape justice because he was brought to trial against his 5 will. 6 (declining to retreat from the established rule that 7 illegal arrest or detention does not void a subsequent 8 conviction ). 9 line of authority in support of its identity statement 342 U.S. at 522; see also Gerstein, 420 U.S. at 119 Lopez-Mendoza s reliance on the Ker-Frisbie 10 leaves no doubt that the Court was referencing the long- 11 standing jurisdictional rule that an unlawful arrest has no 12 bearing on the validity of a subsequent proceeding rather 13 than announcing a new rule insulating all identity-related 14 evidence from suppression. 15 Contemporary case law confirms our view. A 16 jurisdictional reading of Lopez-Mendoza s identity statement 17 is compelled by the Supreme Court s recent decision in 18 Maryland v. King, 133 S. Ct. 1958 (2013).7 7 In King, the The Government raised King in a Rule 28(j) Letter for the purpose of demonstrating that Petitioners birth certificates and Pacheco-Lopez s arrest records were independently obtained through their insuppressible identities. However, we think that King s treatment of identity-related evidence resolves any doubt that Lopez-Mendoza s mandate is jurisdictional rather than evidentiary. 16 1 Supreme Court examined the inventory or booking search 2 exception to the Fourth Amendment s warrant requirement and 3 found that a criminal defendant was not subjected to an 4 unreasonable search and seizure when a sample of his DNA was 5 taken, pursuant to the Maryland DNA Collection Act, 6 following a lawful arrest for a serious offense that was 7 supported by probable cause. 8 result, the Court identified the legitimate government 9 interest served by Maryland s DNA Collection Act as the Id. at 1980. In reaching this 10 need for law enforcement officers in a safe and accurate way 11 to process and identify the persons and possessions they 12 must take into custody, id. at 1970, and concluded that 13 [w]hen probable cause exists to remove an individual from 14 the normal channels of society and hold him in legal 15 custody, DNA identification plays a critical role in serving 16 those interests, id. at 1971. 17 the inventory or booking search exception to the Fourth 18 Amendment s warrant requirement is not implicated on the 19 facts of the case at bar because, unlike in King, 20 Petitioners were not subjected to lawful arrests based on 21 probable cause. Importantly, we note that Indeed, here the IJ explicitly found that 22 17 1 Petitioners arrests constituted unlawful seizures under the 2 Fourth Amendment.8 3 Still, we find King s description of identity-related 4 evidence telling. In finding that name alone cannot 5 address [the government s] interest in identity, the Court 6 noted that other relevant forms of identification include 7 fingerprints, name, alias, date and time of previous 8 convictions and the name then used, photograph, Social 8 The Government s Brief includes a parenthetical citation to United States v. Adegbite, 846 F.2d 834 (2d Cir. 1988), a case the Government referenced during oral argument, for the proposition that the identity [specifically, the name] of defendants is not suppressible under the exclusionary rule. Resp. Br. at 15 (quoting Adegbite, 846 F.2d at 838-39). In Adegbite, this Court determined that the solicitation of information concerning a person s identity and background does not amount to custodial interrogation prohibited by Miranda, 846 F.2d at 838 a statement largely irrelevant to this appeal. Initially, given the Government s inadequate briefing regarding any potential application of the pedigree exception discussed in Adegbite, we consider the argument to be waived. See Tolbert v. Queens Coll., 242 F.3d 58, 75-76 (2d Cir. 2001). Regardless, we would deem the pedigree exception to be inapplicable; it is focused on protecting basic information needed to facilitate the booking and arraigning of a suspect from suppression as a result of a Miranda violation following a valid arrest. United States v. Carmona, 873 F.2d 569, 573 (2d Cir. 1989) (citing United States v. Gotchis, 803 F.2d 74, 78-79 (2d Cir. 1986) and United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir. 1975)). The concerns inherent within the pedigree exception to Miranda violations supplying incriminating but identifying information without being warned of the consequences do not line up well with the circumstances of Petitioners constitutional claim that they were seized in their home without consent and without probable cause. There is no reason to consider engrafting an exception to the protections of the Fifth Amendment onto Petitioners Fourth Amendment claims. 18 1 Security number, or [DNA] profile. Id. at 1972. This 2 broad concept of identity, when read in conjunction with 3 the Government s proffered interpretation of Lopez-Mendoza s 4 identity statement as precluding the suppression of all 5 identity-related evidence, would render the inventory or 6 booking search exception to the Fourth Amendment s warrant 7 requirement superfluous. 8 related evidence, and Lopez-Mendoza precludes the 9 suppression of all identity-related evidence, then why After all, if DNA is identity- 10 bother to couch Maryland s DNA Collection Act within the 11 booking exception at all? 12 includes fingerprints, and Lopez-Mendoza precludes the 13 suppression of all identity-related evidence, then what are 14 we to make of controlling precedent mandating the 15 suppression of this insuppressible evidence? 16 Hayes v. Florida, 470 U.S. 811, 816-17 (1985) (holding 17 fingerprints properly suppressed when defendant was arrested 18 without probable cause, taken to police station without 19 consent, and detained and fingerprinted for investigatory 20 purposes); Taylor v. Alabama, 457 U.S. 687, 692-93 (1982) 21 (concluding that [t]he initial fingerprints [] were 22 themselves the fruit of petitioner s illegal arrest . . . . And if identity-related evidence 19 See, e.g., 1 (citation omitted)); accord Davis v. Mississippi, 394 U.S. 2 721, 727 (1969). 3 clear that we cannot read Lopez-Mendoza s identity statement 4 as establishing a rule of evidence. 5 Jurisdictional Identity Evidence is Not Suppressible 6 Given such peculiar consequences, it is Although Lopez-Mendoza s identity statement merely 7 confirmed a long-standing rule of personal jurisdiction, 8 that does not resolve the matter. 9 jurisdictional rule has unavoidable, practical evidentiary Lopez-Mendoza s 10 consequences.9 11 tribunal s power over his body despite being subject to an 12 illegal seizure en route to the courthouse, he cannot 13 contest that he is, in fact, the individual named in the 14 charging documents initiating proceedings. 15 States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004). 16 Thus, a person s identity, insofar as necessary to 17 identify the individual subject to judicial proceedings, is 18 not suppressible on a purely practical level. Because an individual cannot escape a 9 See United The Government argues that one of these consequences is allowing Petitioners to immunize themselves from the consequences of their continuing violation of law. Resp. Br. at 11. The Supreme Court s recent confirmation that [a]s a general rule, it is not a crime for a removable alien to remain present in the United States, alleviates any concerns we harbor with respect to this claim. Arizona v. United States, 132 S. Ct. 2492, 2505 (2012) (citing Lopez-Mendoza, 468 U.S. at 1038). 20 1 The obvious element of identity that falls within this 2 category is one s name. In this case, Petitioners freely 3 concede that they are the individuals charged in the Notices 4 to Appear and they do not argue that their names should be 5 suppressed following an egregious Fourth Amendment 6 violation.10 7 identity evidence, if any, is necessary to identify the 8 individual for jurisdictional purposes, and is thus not 9 suppressible on a purely practical level. A more difficult question is what other However, the 10 Court need not reach that question because the Government 11 repeatedly contends that the names alone were sufficient to 12 obtain the additional evidence at issue. 13 22, 25. 14 alienage begins. 15 its position. Resp. Br. at 7-8, There is no need to decide where identity ends and Therefore, we will hold the Government to 10 The Government argues that even if this Court requires suppression of Petitioners identity information, Petitioners will be required to admit or deny the allegations and charges in any future Notices to Appear pursuant to 8 C.F.R. § 1240.10(c), and that if they deny the charges, the Government may question them under oath and the agency may draw adverse inferences if Petitioners remain silent. Resp. Br. at 10-11 & 10 n.1. The Government is correct that Section 1240.10(c) provides that an immigration judge shall require the respondent to plead to the notice to appear, 8 C.F.R. § 1240.10(c), and that under certain circumstances, an adverse inference may indeed be drawn from a respondent s silence in deportation proceedings, Matter of Guevara, 20 I. & N. Dec. 238, 241 (B.I.A. 1990). However, as Petitioners point out, the BIA has also held that silence alone does not provide sufficient evidence, in the absence of any other evidence of record at all, to establish a prima facie case of alienage. Id. at 242. 21 1 2 Independent Evidence The BIA determined that Petitioners birth certificates 3 constituted independent evidence of alienage because they 4 were obtained solely through the use of Petitioners 5 insuppressible identities. 6 was independently obtained, we must determine whether, 7 granting establishment of the primary illegality, the 8 evidence to which instant objection is made has been come at 9 by exploitation of that illegality or instead by means In assessing whether evidence 10 sufficiently distinguishable to be purged of the primary 11 taint. 12 omitted). 13 a prima facie case for suppression, the Government must 14 assume the burden of justifying the manner in which it 15 obtained the evidence. 16 609, 611 (B.I.A. 1988) (internal quotation marks omitted). 17 Wong Sun, 371 U.S. at 488 (internal quotation marks And where, as here, Petitioners have established Matter of Barcenas, 19 I. & N. Dec. The Government maintained before the agency and at oral 18 argument that ICE procured Petitioners birth certificates 19 using only their names. 20 not evidence, Matter of Ramirez-Sanchez, 17 I. & N. Dec. 21 503, 506 (B.I.A. 1980), and the Government failed to make 22 any evidentiary proffer demonstrating the basis for But the arguments of counsel are 22 1 Petitioners birth certificate request. Moreover, we note 2 that the Government s claim that the request was based on 3 names alone was dubiously supported by only a Federal 4 Express package label, but not by the actual letter ICE sent 5 to the United States Embassy in Guatemala. 6 Government s post-argument Rule 28(j) Letter stating that 7 it was proper for the government to use aspects of 8 [Petitioners ] identity other than simply their names such 9 as birth date and even place of birth to obtain their 10 Guatemalan birth certificates, would appear to further 11 undermine the Government s contention. 12 record before the IJ contained no evidence documenting the 13 basis for Petitioners birth certificate request, we find 14 that the BIA erred by concluding that the Government had met 15 its burden of establishing that Petitioners birth 16 certificates constituted independent evidence of alienage. 17 See Wong Sun, 371 U.S. at 488; Barcenas, 19 I. & N. Dec. at 18 611. In addition, the Given that the 19 The Government argues that it already possessed 20 independent evidence of Pacheco-Lopez s alienage prior to 21 any constitutional violation, in the form of his arrest 22 records that were merely linked to him using his name, but 23 the record is equally silent concerning the procurement of 23 1 those records. The Government relies on Reyes-Basurto v. 2 Holder, a non-precedential summary order in which we 3 previously affirmed the denial of a motion to suppress 4 evidence on this linkage rationale. 5 789 (2d Cir. 2012). 6 to suppress his Border Patrol records and a Form I-140 7 (Petition For Alien Worker) that were necessarily already in 8 the possession of immigration officials. 9 In affirming the denial of suppression, we reasoned that See 477 F. App x 788, In Reyes-Basurto, the petitioner sought See id. at 789. 10 Reyes-Basurto s pre-existing immigration records made him a 11 suspect in regards to removability even before his 12 [illegal] arrest. 13 U.S. at 476, in which the Court declined to suppress an in- 14 court witness identification because the robbery 15 investigation had already focused on [Crews], and the police 16 had independent reasonable grounds to suspect his 17 culpability prior to any Fourth Amendment violation). 18 This rationale does not apply with equal force to Id. at 789 (analogizing to Crews, 445 19 Pacheco-Lopez, whose alienage-related evidence was in the 20 possession of a municipal transit police department rather 21 than immigration officials. 22 also Crews, 445 U.S. at 476 ( Had it not been for Davis 23 illegal detention, however, his prints would not have been See Davis, 394 U.S. 721; see 24 1 obtained and he would never have become a suspect. ). In 2 any event, given that the Government failed to proffer any 3 evidence demonstrating how Pacheco-Lopez s records were 4 obtained, we are unable to find that this evidence was 5 linked to him through the use of his name alone, and, 6 therefore, we find that the BIA erred in concluding that the 7 Government had met its burden of establishing that this 8 evidence was independent of any constitutional violation. 9 10 11 Conclusion For the foregoing reasons, the decision of the Board of 12 Immigration Appeals is hereby VACATED and REMANDED. 13 the BIA declined to answer the question of whether 14 Petitioners sustained an egregious Fourth Amendment 15 violation, we do not reach this issue. 16 that fact-finding with respect to the circumstances under 17 which ICE officers entered Petitioners home and seized 18 Petitioners has been completed. 19 opportunity to respond to Petitioners prima facie case for 20 suppression and explicitly chose not to. 21 Government had an opportunity to submit proof showing 22 exactly how it obtained Pacheco-Lopez s arrest records and 25 Because However, we note The Government had an Likewise, the 1 Petitioners birth certificates. 2 do so; the evidence proffered is inadequate to support the 3 Government s claim that it relied on Petitioners names 4 alone in securing their birth certificates from the United 5 States Embassy in Guatemala. 6 The Government failed to Accordingly, we remand this case for the BIA to reach 7 the issue of whether Government agents seized evidence of 8 alienage from Petitioners in the course of committing an 9 egregious Fourth Amendment violation. Should any questions 10 over the nature of the constitutional violation linger, we 11 direct the agency to the opinion issued in a companion case 12 also decided today, in which we were persuaded that the 13 facts as alleged by the alien and similar to those in this 14 case portrayed an egregious Fourth Amendment violation. 15 Doroteo Sicajau Cotzojay v. Holder, No. 11-4916-ag, - F.3d 16 -, - (2d Cir. 2013). 26 See