Cotzojay v. Holder, No. 11-4916 (2d Cir. 2013)
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Petitioner, a citizen of Guatemala, petitioned for review of the BIA's decision affirming the IJ's order of removal. After the Government instituted removal proceedings, petitioner filed a motion to suppress the Government's evidence, arguing that ICE officers obtained the evidence in violation of his Fourth and Fifth Amendment rights when they forcibly gained entrance to his home and arrested him without a warrant or probable cause. The court concluded that the IJ erred in finding that petitioner's submissions were insufficient to shift the burden to the Government to establish consent and erred in concluding that the facts alleged, even accepted as true, were insufficient to yield an egregious Fourth Amendment violation requiring suppression. Accordingly, the court vacated and remanded.
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11-4916-ag Doroteo Sicajau Cotzojay 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 33 34 35 36 37 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2012 (Argued: March 14, 2013 Decided: July 31, 2013) Docket No. 11-4916-ag DOROTEO SICAJAU COTZOJAY, Petitioner, v. ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. Before: WESLEY, DRONEY, Circuit Judges, NATHAN, District Judge.* Petitioner Doroteo Sicajau Cotzojay ( Sicajau ) appeals from the October 31, 2011 decision of the Board of Immigration Appeals (the BIA ) dismissing Sicajau s appeal from the Immigration Judge s (the IJ ) July 17, 2009 order of removal and the IJ s April 21, 2009 oral decision denying * 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 Sicajau s motion to suppress the Government s evidence of alienage. Immigration and Customs Enforcement ( ICE ) officers obtained this evidence during an April 2007 nighttime, warrantless raid on Sicajau s home. The IJ denied Sicajau s motion to suppress after finding that Sicajau had not shown that ICE officers entered his home without consent and that, regardless, the ICE officers conduct was not sufficiently shocking to qualify as egregious and require application of the exclusionary rule in this civil removal proceeding. The BIA affirmed the denial of Sicajau s motion to suppress and the subsequent order of removal. Because we find that the IJ erroneously interpreted our case law to require physical threat or harm before a Fourth Amendment violation becomes sufficiently egregious to require suppression, and thus erred by refusing to shift the burden of proof to show consent to the Government, we VACATE and REMAND the BIA s decision affirming the IJ s denial of Sicajau s motion to suppress and order of removal. VACATED AND REMANDED. HEATHER Y. AXFORD (Anne Pilsbury, Alexandra Goncalves-Peña, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioner. NICOLE THOMAS-DORRIS, Trial Attorney, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, on the brief), United States Department of Justice, Washington, DC, for Respondent. Nancy Morawetz, Nikki Reisch, Legal Intern, Washington Square Legal Services, Immigrant Rights Clinic, New York, NY, for Amici Curiae Lutheran Social Services of New York, Families for Freedom, New Sanctuary Coalition of New York City. 2 1 2 WESLEY, Circuit Judge: On April 16, 2007, at approximately 4:00 a.m., 3 Petitioner Doroteo Sicajau Cotzojay ( Sicajau )1 awoke to 4 hear people knocking on windows and doors at the duplex that 5 he shared with approximately twenty people in Riverhead, New 6 York.2 7 identified themselves as police or probation officers and 8 asked to speak with a man named Jose Cojon ( Cojon ). 9 officers were Immigration and Customs Enforcement ( ICE ) The individuals surrounding Sicajau s home 10 officers. 11 room) leave the house with his passport. 12 house then closed behind him. 13 bedroom on the first floor of the house with his door 14 locked. 15 people pounding on his bedroom door. 16 would force their way into his room, Sicajau opened the 17 door. The Sicajau observed Cojon (who lived in the next The door to the Sicajau remained in his He heard steps on the first floor and then heard Fearing that officers Armed ICE officers entered the room, placed Sicajau 18 1 Petitioner s attorney refers to him as Sicajau. 2 The factual record in this case is limited to Sicajau s affidavit and testimony before the IJ and the testimony of one of his neighbors, Jose Anibal Ochoa. The Government did not submit any affidavits or witnesses directly addressing the circumstances of Petitioner s arrest. 3 1 in handcuffs and took him to the living room, where he was 2 searched and instructed to remain on the floor. 3 The officers asked Sicajau for identification and 4 rejected his high school identification card Sicajau had 5 recently turned twenty years old. 6 to his bedroom and searched through the contents of his 7 drawers until they located his Guatemalan passport. 8 officers loaded Sicajau and the majority of the people who 9 lived at the duplex into a van. They then took him back ICE The officers drove the van 10 to another house where they arrested several more people 11 before proceeding to a McDonald s, where the officers had 12 breakfast; the officers told Sicajau and the detainees in 13 the van they could relieve themselves in the restaurant 14 parking lot if the need arose. 15 ICE officers took Sicajau to 26 Federal Plaza in New 16 York City and placed him in a cell. He was given a sandwich 17 and a bottle of water. 18 Sicajau s photograph and his fingerprints before questioning 19 him in English (which he does not speak well) about his 20 immigration status and asking him to sign numerous 21 documents. 22 problems if he didn t sign the documents. Subsequently, officers took Sicajau was told he could be in even bigger 4 Joint App x 149- 1 50. 2 213, the Record of Deportable/Inadmissible Alien, ICE 3 officers informed Sicajau that he had the right to an 4 attorney. 5 that evening. 6 Prior Proceedings 7 After Sicajau complied and officers completed a Form I- Sicajau was released at approximately 10:00 p.m. After the Government instituted removal proceedings, 8 Sicajau filed a motion to suppress the Government s evidence 9 of alienage, specifically, Sicajau s Guatemalan passport, 10 the I-213 and the statements memorialized therein, and any 11 other documents seized by, or statements made to, ICE 12 officers. 13 evidence in violation of his Fourth and Fifth Amendment 14 rights. 15 gained entrance to his home and arrested him without a 16 warrant or probable cause. 17 motion to suppress, Sicajau submitted a sworn statement. 18 His affidavit asserted that he was asleep in [his] bedroom 19 when he was suddenly awoken at 4 A.M. by knocking at his 20 window and voice yelling Police! 21 Regarding the officers initial entry and exit from his 22 home, Sicajau averred that he Sicajau argued that ICE officers obtained this Sicajau contended that ICE officers had forcibly Id. at 250. 5 In support of his Open up. Id. at 252. 1 2 3 4 5 6 7 8 9 opened [his] bedroom door to see what was going on when [he] saw Jose Cojon leaving with a group of armed officers through the main door. After this [Sicajau s] sister in law closed and locked the front door. [Sicajau] returned to [his] bedroom. Id. Sicajau s affidavit does not explain when or how the 10 officers re-entered the home because he had decided to stay 11 in [his] room. 12 Id. In April 2009, Immigration Judge Robert D. Weisel (the 13 IJ ) held a suppression hearing based on a preliminary 14 ruling that [Sicajau s] affidavit alone constituted prima 15 facie evidence sufficient to entitle Sicajau to a hearing. 16 Id. at 100. 17 affidavit was not in and of itself sufficient to establish 18 that the right was violated. 19 purpose of [the] hearing as provid[ing] [Sicajau] with the 20 opportunity to testify. 21 there was a violation under the Constitution. 22 However, the IJ was of the view that Sicajau s Id. The IJ viewed the He has the burden to establish that Id. at 130. During the hearing, Sicajau admitted that he didn t 23 see how [the officers] came in when they returned, because 24 he was in his bedroom, but he heard the steps . . . how 25 they were knocking and trying to get in. 26 Sicajau was able to testify to the fact that after Cojon 6 Id. at 151. 1 left the house, one of Sicajau s friends closed the door 2 . . . he locked it and closed it with some force. 3 139. 4 the Government inquired about the distinction between 5 Sicajau s affidavit, in which he stated that his sister-in- 6 law closed the door behind the officers, and his testimony, 7 during which he said that a friend had shut the door. 8 at 154. 9 close the door, [he had] always said [his] sister-in-law and Id. at During cross-examination, the attorney representing Id. Sicajau confirmed that he saw [his] sister-in-law 10 not [his] friends, but that his brother s subsequent 11 deportation and the resulting estrangement between his 12 brother and sister-in-law had left him concerned she would 13 not testify on his behalf. Id. at 155, 159-61. 14 Following Sicajau s testimony, his attorney called 15 another resident of the house, Jose Anibal Ochoa ( Ochoa ), 16 to testify. 17 regarding what time officers arrived at the house. 18 time of the raid, Ochoa lived on the second floor of the 19 residence. 20 explained that each floor has its own entrance. 21 his testimony was not a model of clarity, the IJ and the 22 parties agreed that Ochoa said that the home has an exterior Ochoa corroborated Sicajau s statements At the He described the layout of the duplex and 7 Although 1 door that led to two doors, one opening onto the first floor 2 and one at the top of a set of interior stairs opening onto 3 the second floor. 4 open the exterior door to gain access to the house. 5 based this belief on the banging he heard and the fact 6 that no one opened the door for them. 7 did not see the officers enter the home. 8 9 Ochoa testified that the officers forced Id. at 190. The Government produced no witnesses. Ochoa Ochoa Instead, the Government rested on an affidavit submitted by Darren 10 Williams ( Williams ), a Supervisory Detention and 11 Deportation Officer with the ICE New York City Fugitive 12 Operations Team. 13 on Sicajau s home; his affidavit offered nothing as to the 14 acts of officers who did. 15 of two Department of Homeland Security ( DHS ) programs: 16 Operation Return to Sender ( apprehending immigration 17 absconders at large ) and Operation Cross Check (finding and 18 securing aliens illegally in the United States, fugitive 19 aliens, aliens with criminal records, or aliens posing a 20 threat to the community ).3 Williams did not participate in the raid Instead, he explained the purpose Id. at 229. 3 Williams confirmed Sicajau was arrested during a raid performed as part of Operation Cross Check. The Petitioners in the companion case we decide today were seized as part of Operation Return to Sender. See Jose Pretzantzin, et al. v. Holder, No. 11-2867-ag, F.3d , 8 1 that operations were routinely scheduled to begin in the 2 early morning but never before 5:30 a.m. and that 3 officers were explicitly trained that voluntary consent 4 must be obtained from the occupant of the residence prior to 5 making entry. 6 officers could question and, if warranted, detain non-target 7 individuals who were encountered during an operation. 8 9 Id. at 230-31. Williams stated that The IJ denied Sicajau s motion to suppress in an oral decision. The IJ recognized that this Court considers 10 exclusion to be appropriate if an an egregious violation 11 occurred that was fundamentally unfair or [if] the 12 violation, regardless of its egregiousness or fairness, 13 undermined the reliability of the evidence in dispute. 14 at 109 (citing Almeida-Amaral v. Gonzalez, 461 F.3d 231 (2d 15 Cir. 2006)). 16 given by Sicajau and Ochoa. 17 although the ICE officers conduct was not courteous, and 18 was imperfect, and was disrespectful, id. at 211, Sicajau 19 had not shown that it constituted an egregious Fourth 20 Amendment violation that mandated suppression of alienage 21 evidence obtained during the raid and at 26 Federal Plaza, 22 id. at 110. Id. The IJ accurately described the testimony However, the IJ concluded that (2d Cir. 2013). 9 1 The IJ determined that Sicajau had failed to offer 2 sufficient facts to establish that the residence was 3 searched without valid consent, because [n]either 4 [Sicajau] nor [Ochoa] observed any official enter the 5 dwelling. 6 testimony at the hearing varied somewhat from the statements 7 in his affidavit, but the IJ did not appear to give much 8 weight to the discrepancy regarding whether it was Sicajau s 9 sister-in-law or his friend who closed the door behind Jose Id. at 108. The IJ further noted that Sicajau s 10 Cojon.4 11 whether he found Sicajau or Ochoa to be credible. 12 Regardless, the IJ determined that even if ICE officers had 13 entered Sicajau s home without a warrant and without The IJ did not make an explicit finding as to 4 The IJ seemed more concerned with Sicajau s description of when and how the door to the home was initially opened and closed. In Sicajau s affidavit, he stated that he opened his bedroom door to see what was happening; he observed Cojon leave the home. After this [his] sister in law closed and locked the front door. Joint App x 252. During the hearing, Sicajau testified that he left his bedroom for a moment and, through a window, observed Cojon leaving the house. The attorney representing the Government asked Sicajau whether, when he was out of his room, he saw any doors standing open. Id. at 154. Sicajau responded that the doors were closed. Id. The Government s attorney then asked Sicajau how he knew that his sister-in-law had closed the door if he never saw it open. Id. at 155. Sicajau clarified that he had seen the door open before his sister-in-law closed it. Id. Although the IJ apparently viewed Sicajau s statements as containing a marked contrast, id. at 108, whether Sicajau actually observed the exterior door standing open before his sister-in-law closed it or whether he merely presumed it had been open because he had just seen Cojon depart is not crucial given that Sicajau maintained that the doors were closed after Cojon left the house. 10 1 consent, that fact alone did not yield an egregious Fourth 2 Amendment violation. 3 physical brutality and was not threatened in a way that 4 would give him the impression that if he did not comply or 5 obey [the officers ] requests, that he would be in some way 6 severely mistreated, mishandled or punished, the IJ 7 reasoned that the ICE officers conduct was not sufficiently 8 egregious to warrant application of the exclusionary rule in 9 a civil removal hearing. Because Sicajau was not subjected to Id. at 110-11. As a result, the 10 IJ refused to suppress any of the evidence or statements 11 obtained by the Government. 12 Sicajau removed from the United States. 13 In July 2009, the IJ ordered The Board of Immigration Appeals (the BIA ) affirmed. 14 In re Sicajau Cotzojay, No. A097 535 383 (B.I.A. Oct. 31, 15 2011). 16 suppress the Government s evidence of Sicajau s alienage 17 because the egregiousness standard ha[d] not been met. 18 Id. 19 [Sicajau] [we]re insufficient to show that the immigration 20 officers entered his living space without consent ; the BIA 21 emphasized Sicajau s failure to produce a witness who saw 22 the officers enter the building. 23 the IJ s observations that [Sicajau] did not show that he The BIA determined that the IJ was not required to The BIA reasoned that [t]he facts as alleged by 11 Id. The BIA approved of 1 was physically mishandled or threatened with harm, and it 2 found that any Fourth Amendment violation was insufficiently 3 severe to require application of the exclusionary rule. 4 The BIA also rejected Sicajau s arguments regarding alleged 5 violations of his Fifth Amendment rights and of DHS 6 regulations. 7 8 Id. Id. Petitioner timely petitioned for review of the BIA s decision. 9 10 Discussion5 11 The IJ provided two bases for his decision that the 12 evidence at issue was not suppressible: first, Petitioner 13 failed to establish a lack of consent; and second, even if 14 the raid was non-consensual, Petitioner failed to establish 15 an egregious violation of his Fourth Amendment rights. 16 BIA affirmed both of the IJ s decisions. 17 discussed below, the Court concludes that the IJ erred on 5 The For the reasons The standard of review is neither contested nor determinative. When the BIA does not expressly adopt the IJ s decision, but its brief opinion closely tracks the IJ s reasoning, this Court may consider both the IJ s and the BIA s opinions for the sake of completeness. Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir. 2006)). We review the agency s factual findings for substantial evidence, id., and questions of law de novo, Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000). 12 1 both levels. 2 submissions were insufficient to shift the burden to the 3 Government to establish consent. 4 conclude that the facts alleged, even accepted as true, were 5 insufficient to yield an egregious Fourth Amendment 6 violation requiring suppression. 7 Burden of Proof 8 9 It was error to find that Sicajau s It was also error to The IJ first found that the evidence was not subject to exclusion because Sicajau failed to establish that the 10 residence was searched without valid consent. This was 11 error; Sicajau adequately established a prima facie case for 12 suppression, at which point it became the Government s 13 burden to establish that its agents secured consent prior to 14 conducting the search. 15 petitioner raising a question about the admissibility of 16 evidence must come forward with proof establishing a prima 17 facie case before the [Government] will be called on to 18 assume the burden of justifying the manner in which it 19 obtained the evidence. 20 Dec. 609, 611 (B.I.A. 1988) (quoting Matter of Burgos, 15 I. 21 & N. Dec. 278, 279 (B.I.A. 1975)). 22 shifting framework, if the petitioner offers an affidavit 23 that could support a basis for excluding the evidence in Pursuant to BIA precedent, a Matter of Barcenas, 19 I. & N. 13 Under this burden- 1 question, it must then be supported by testimony. 2 the petitioner establishes a prima facie case, the burden of 3 proof shifts to the Government to show why the evidence in 4 question should be admitted. 5 Id. If The BIA developed this burden-shifting framework in 6 Matter of Tang, 13 I. & N. Dec. 691, 692 (B.I.A. 1971), a 7 case in which the respondent challenged the Government s use 8 of documents that his attorney claimed had been taken in 9 violation of his constitutional rights. Tang s attorney did 10 not provide any specifications regarding this assertion; he 11 argued that since he raised a question as to the legality 12 of the evidence, the burden is upon the [Government] to come 13 forward with proof establishing that the documents were 14 legally obtained. 15 [o]ne who raises the claim must come forward with proof 16 establishing a prima facie case before the [Government] will 17 be called upon to assume the burden of justifying the manner 18 in which it obtained its evidence. 19 Id. The BIA disagreed, finding that Id. The BIA explained that the reason for [its] rule was 20 that an attorney demanding suppression merely upon his own 21 say-so often discovers only at the hearing that he has been 22 misled by unsworn representations of his clients, 23 resulting in protracted and unnecessary proceedings. 14 Id. 1 (quoting United States v. Garcia, 272 F. Supp. 286, 290 2 (S.D.N.Y. 1967)). 3 support of a motion for suppression that is merely a mixed 4 legal and factual declaration by counsel, not based on 5 counsel s personal knowledge and never corroborated 6 personally by the respondent does not constitute a prima 7 facie showing. 8 503, 505-06 (B.I.A. 1980). 9 knowledge refers to information possessed by the respondent 10 who was subject to the alleged constitutional violation; it 11 cannot extend to information the respondent does not have. 12 Thus, a respondent s offer of proof in Matter of Ramirez-Sanchez, 17 I. & N. Dec. But the requisite personal Here, the IJ erred by failing to shift the burden to 13 show consent from Sicajau to the Government once Sicajau 14 offered an affidavit and supporting testimony based on 15 personal knowledge sufficient to make out a prima facie case 16 for suppression. 17 could support a basis for excluding the evidence in 18 question. 19 neither Sicajau nor Ochoa personally observed ICE officers 20 enter their home, each man testified to the full extent 21 permitted by his personal knowledge. 22 found that Sicajau d[id] not offer sufficient facts to 23 establish that the residence was searched without valid Sicajau presented facts that, if true, Barcenas, 19 I. & N. Dec. at 611. 15 Although Despite this, the IJ 1 consent, because neither he nor his witness had observed 2 any official enter the dwelling. 3 affirmed this conclusion, finding that [t]he facts as 4 alleged by [Sicajau] are insufficient to show that 5 immigration officers entered his living space without 6 consent. 7 Oct. 31, 2011). 8 9 Joint App x 108. The BIA In re Sicajau Cotzojay, No. A097 535 383 (B.I.A. This was error. Sicajau presented facts that, taken as true, showed that ICE officers entered his home without 10 consent and in violation of the Fourth Amendment. See 11 Almeida-Amaral v. Gonzalez, 461 F.3d 231, 237 (2d Cir. 2006) 12 (noting that we must tak[e] the evidence most favorably to 13 petitioner at this stage). 14 establish that the officers obtained voluntary consent 15 before invading Sicajau s home and bedroom should have 16 shifted to the Government. 17 even if Sicajau had made a prima facie case for an ordinary 18 Fourth Amendment violation (by establishing a non-consensual 19 entry), he had not made a prima facie showing for 20 suppression because the facts alleged could not yield a 21 violation so shocking to the conscience that it would rise 22 to the level of egregiousness. At this point, the burden to However, the IJ believed that 23 16 Joint App x 110. 1 Egregious Fourth Amendment Violations 2 The IJ also found, and the BIA affirmed, that the 3 evidence was not subject to exclusion because Sicajau could 4 not show an egregious Fourth Amendment violation requiring 5 suppression. 6 Sicajau had demonstrated an ordinary Fourth Amendment 7 violation, because he did not claim that ICE officers 8 physically threatened or harmed him in the course of the 9 nighttime, warrantless raid, it did not amount to an Specifically, the IJ found that even if 10 egregious violation. 11 affirmation, rested on an erroneous view of what government 12 conduct is required before a Fourth Amendment violation may 13 be classified as egregious. 14 The IJ s determination, and the BIA s In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the 15 Supreme Court balanced the likely social benefits of 16 excluding unlawfully seized evidence against the likely 17 costs, id. at 1041, and determined that a Fourth Amendment 18 violation, standing alone, does not justify applying the 19 exclusionary rule in civil deportation hearings, id. at 20 1041-50. 21 caveats to this rule.6 However, a plurality of the Court included two First, Justice O Connor, who 6 Cf. Oliva-Ramos v. Att. Gen. of U.S., 694 F.3d 259, 271 (3d Cir. 2012) ( [T]hough technically correct to characterize the 17 1 authored the majority opinion, recognized that the need for 2 the exclusionary rule s use might change, if there 3 developed good reason to believe that Fourth Amendment 4 violations by [immigration] officers were widespread. 5 at 1050. 6 holding by exempting from it any egregious violations of 7 Fourth Amendment or other liberties that might transgress 8 notions of fundamental fairness and undermine the probative 9 value of the evidence obtained. Id. Second, Justice O Connor limited the majority Id. at 1050-51. Sicajau 10 focuses his attack here on the second limitation: egregious 11 Fourth Amendment violations.7 12 We interpreted this aspect of Lopez-Mendoza as 13 authorizing the exclusion of evidence obtained in violation 14 of the Fourth Amendment if record evidence established 15 either (a) that an egregious violation that was 16 fundamentally unfair had occurred, or (b) that the violation portion of the majority opinion recognizing a potential exception to the Court s holding as a plurality opinion, eight Justices agreed that the exclusionary rule should apply in deportation/removal proceedings involving egregious or widespread Fourth Amendment violations. ). 7 We note that recently ICE settled a class action arising out of warrantless invasions of (alleged) alien residences in conjunction with Operation Return to Sender. Mark Hamblett, Settlement Includes Guidelines for ICE Raids, N.Y. LAW JOURNAL, Apr. 8, 2013 (discussing settlement reached in Aguilar v. Immigration and Customs Enforcement, No. 07 Civ. 8224, before Southern District of New York Judge Katherine Forrest). 18 1 regardless of its egregiousness or unfairness undermined 2 the reliability of the evidence in dispute. 8 3 Almeida-Amaral, 461 F.3d at 235. 4 seventeen-year-old petitioner was approached late at night 5 by a border patrol agent in the parking lot of a gas station 6 near the Mexican border. 7 identification; when the petitioner produced his Brazilian 8 passport, the agent arrested him. 9 In Almeida-Amaral, the Id. at 232. The agent requested Id. This Court had no doubts about the veracity of the 10 evidence obtained as a result of the seizure, but 11 questioned whether the agent s stop of Almeida-Amaral 12 transgressed notions of fundamental fairness. 13 (internal quotation marks and alteration omitted). 14 providing an exhaustive set of factors, we identified two 15 principles that . . . bear on whether petitioner suffered an 16 egregious violation of his constitutional rights. 17 235 & 235 n.1. Id. at 235 Without Id. at First, the characteristics and severity of 8 Almeida-Amaral explained that Lopez-Mendoza authorizes exclusion for violations that are egregious either because the violation transgress[ed] notions of fundamental fairness, or because the violation undermine[d] the probative value of the evidence obtained. 461 F.3d at 234 (quoting Lopez-Mendoza, 468 U.S. at 1050-51) (emphasis in original). This Court viewed Lopez-Mendoza s use of the conjunctive and instead of the disjunctive or as apparently inadvertent[] ; it was plainly not what the Court intended to require evidence of fundamental unfairness and diminished probative value to justify exclusion. See id. at 234-35. 19 1 the offending conduct, in addition to the validity of the 2 seizure itself, should be considered. 3 we determined that even where the seizure is not especially 4 severe, it may nevertheless qualify as an egregious 5 violation if the stop was based on race (or some other 6 grossly improper consideration). 7 principles, we found that the agent s suspicionless stop was 8 an infringement but was not egregious because the stop was 9 neither severe nor apparently motivated by impermissible 10 11 considerations. Id. Id. at 235. Second, Applying these Id. at 237. What causes a Fourth Amendment violation to qualify as 12 egregious based on severity? 13 violation sufficiently severe, and therefore egregious, to 14 require suppression in a removal hearing.9 15 Melnitsenko v. Mukasey, 517 F.3d 42, 47-48 (2d Cir. 2008) 16 (three-hour stop at a border check point was not 17 sufficiently severe to be egregious); Pinto-Montoya v. 18 Mukasey, 540 F.3d 126, 131-32 (2d Cir. 2008) (per curiam) 9 This Court has never found a E.g., id.; We have suppressed evidence on the basis of its unreliability. In Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009), immigration agents questioned the petitioner over several hours throughout the night, not about his own immigration status, a relatively clear-cut inquiry, but about more nuanced issues that were susceptible to corruption during the course of an improper interview. Id. at 214-16. 20 1 (finding that petitioners were not seized for Fourth 2 Amendment purposes when they answered officials questions 3 at an airport). 4 violations under arguably less severe circumstances. 5 e.g., Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018-19 6 (9th Cir. 2008). 7 no one-size-fits-all approach to determining whether a 8 Fourth Amendment violation is egregious. 9 Att. Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012). Other courts have identified egregious See, As the Third Circuit has noted, there is Oliva-Ramos v. 10 In this case, the absence of physical threat or harm to 11 Sicajau was a key factor in the IJ and BIA decisions finding 12 the exclusionary rule inapplicable. 13 egregious violation must include the threat or realization 14 of physical violence requires a review of the Supreme 15 Court s Fourth Amendment jurisprudence generally, and the 16 Court s reference to egregious violations in Lopez-Mendoza 17 specifically. 18 Determining whether an First, it is uncontroversial that the Fourth Amendment 19 applies to aliens and citizens alike. 20 Mendoza, 468 U.S. at 1046 (observing that it is [i]mportant 21 . . . to protect the Fourth Amendment rights of all 22 persons, despite finding that application of the 23 exclusionary rule is not necessary in every context). 21 See, e.g., Lopez- 1 Second, in the absence of consent or exigent circumstances 2 . . . [the Court has] consistently held that the entry into 3 a home to conduct a search or make an arrest is unreasonable 4 under the Fourth Amendment unless done pursuant to a 5 warrant. 6 (1981). 7 individuals like Sicajau, and these protections should be at 8 their zenith in the home. 9 Amendment stands the right of a man to retreat into his own Steagald v. United States, 451 U.S. 204, 211 The Fourth Amendment s protections apply to At the very core of the Fourth 10 home and there be free from unreasonable governmental 11 intrusion. 12 (internal quotation marks and alterations omitted)). 13 Payton v. N.Y., 445 U.S. 573, 589-90 (1980) But the applicability of the Fourth Amendment does not 14 compel the availability of the exclusionary rule in civil 15 deportation proceedings. 16 In support of the plurality s exception for egregious Fourth 17 Amendment violations, Justice O Connor looked to Rochin v. 18 California, 342 U.S. 165 (1952), and to two BIA cases in 19 which fundamentally unfair evidence was suppressed. 20 Lopez-Mendoza, 468 U.S. at 1050-51 & 1051 n.5. 21 criminal case, when police officers entered the defendant s 22 bedroom he promptly swallowed two unidentified capsules. 23 342 U.S. at 166. Lopez-Mendoza, 468 U.S. at 1050. In Rochin, a In order to recover the capsules, the 22 1 officers handcuffed Rochin and took him to the hospital, 2 where his stomach was forcibly pumped to induce vomiting. 3 Id. 4 morphine, the recovered capsules were the chief evidence 5 against him. 6 declined to review Rochin s conviction, the Supreme Court 7 granted certiorari and reversed because the officers 8 conduct shock[ed] the conscience. 9 At Rochin s trial for possessing a preparation of Id. After the California Supreme Court Id. at 209. We do not read the Supreme Court s citation to Rochin 10 as an indication that the Court requires equally flagrant 11 violations before it is willing to label them egregious. 12 As the Third Circuit recently pointed out, the Supreme 13 Court s decision in Rochin preceded its incorporation of the 14 Fourth Amendment against the states via the Fourteenth 15 Amendment in Mapp v. Ohio, 367 U.S. 643, 655-57 (1961). 16 Oliva-Ramos, 694 F.3d at 276. 17 not relied on the Rochin shocks the conscience standard but 18 has instead applied a Fourth Amendment reasonableness 19 analysis in cases that, like Rochin, involved highly 20 intrusive searches or seizures. 21 City of Chicago, 830 F.2d 706, 711 (7th Cir. 1987) 22 (additional internal quotation marks omitted)); see also Consequently, the Court has 23 Id. (quoting Lester v. 1 Maryland v. King, 133 S.Ct. 1958, 1969 (2013). Still, if a 2 Fourth Amendment violation is measured by what is 3 reasonable, then an egregious violation must surely be 4 something more than unreasonable. 5 at 276. See Oliva-Ramos, 694 F.3d 6 Justice O Connor does not directly address what 7 distinguishes an unreasonable violation from one that is 8 egregious, but cites to two cases in which the BIA concluded 9 that the constitutional violation at issue was egregious. 10 One of these cases is directly on point, as it allowed 11 suppression of evidence obtained as a result of a night- 12 time warrantless entry into the aliens residence. 13 Mendoza, 468 U.S. at 1051 n.5 (citing Matter of Ramira- 14 Cordova, No. A21 095 659 (Feb. 21, 1980)). 15 to Matter of Garcia, 17 I. & N. Dec. 319, 321 (BIA 1980), in 16 which the BIA invoked the requirements of due process to 17 suppress the respondent s involuntary admission of alienage 18 after his repeated requests for counsel were denied. 19 Mendoza, 468 U.S. at 1051 n.5. 20 Lopez- She also cites Lopez- Although both Garcia and Ramira-Cordova, like Rochin, 21 involved some degree of physical threat or forcible contact, 22 we are unconvinced that the Supreme Court s citation to 23 these cases means that physical coercion is a necessary 24 1 component of an egregious Fourth Amendment violation. 2 Ultimately, the plurality s exemption of egregious 3 violations rests on the view that evidence obtained in a 4 fundamentally unfair manner should be excluded for due 5 process reasons. 6 see no good reason to require that Fourth Amendment 7 violations must involve some sort of physical threat or 8 trespass before they transgress notions of fundamental 9 fairness. Lopez-Mendoza, 468 U.S. at 1051 n.5. We Id. at 1050-51 (noting that the evidence at 10 issue was gathered in connection with peaceful arrests ). 11 Breaking into someone s home at 4:00 a.m. without a warrant 12 or any legitimate basis need not also include physical 13 injury or the threat thereof for such conduct to qualify as 14 egregious. 15 In Almeida-Amaral, this Court explained that both the 16 characteristics and severity of the offending conduct, in 17 addition to its validity or invalidity, are relevant. 18 F.3d at 235. 19 Third Circuit has recognized, a flexible case-by-case 20 approach is warranted, under which the threat or use of 21 physical force is one relevant, but not dispositive, 22 consideration. 23 Ramos, the court vacated and remanded the BIA s decision This inquiry is intended to be broad. Oliva-Ramos, 694 F.3d at 278-79. 25 461 As the In Oliva- 1 refusing to suppress evidence obtained via a pre-dawn, 2 warrantless raid conducted as part of Operation Return to 3 Sender. 4 a non-exhaustive list of factors to guide the BIA in its 5 assessment of the egregiousness of the Fourth Amendment 6 violation, including: whether the violation was intentional; 7 whether the seizure was gross or unreasonable and without 8 plausible legal ground; whether the invasion involved 9 threats, coercion[, ] physical abuse or unreasonable Id. at 279, 281 n.27. The Third Circuit developed 10 shows of force ; and whether the seizure or arrest was based 11 on race or ethnicity. Id. at 279. 12 We agree with the Third Circuit that each of these 13 factors, among others, may be useful for determining whether 14 a Fourth Amendment violation is sufficiently egregious to 15 require application of the exclusionary rule. 16 aspect of a constitutional violation elevates its status 17 from merely unreasonable to egregious.10 10 No single Thus, although an The Ninth Circuit s view that [a] Fourth Amendment violation is egregious if evidence is obtained by deliberate violations of the [F]ourth [A]mendment, or by conduct a reasonable officer should [have known] is in violation of the Constitution goes too far. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008) (quoting Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 (9th Cir. 1994) (emphasis omitted)). This qualified immunity-type inquiry yields an exception that is frankly, rather broad, id. at 1019 (Bybee, J., concurring), and places too much emphasis on the good or bad faith of government agents. 26 1 unlawful search does not become[] an egregious search 2 merely because it invades the privacy of the home, Martinez 3 Carcamo v. Holder, 713 F.3d 916, 923 (8th Cir. 2013), that 4 government agents intrude into one s home (versus a 5 workplace or vehicle, for example) is an important factor in 6 assessing the egregiousness of a Fourth Amendment violation 7 because the home is where its protections should be at their 8 peak. 9 warrantless entry into an individual s home, without consent 10 and in the absence of exigent circumstances, may constitute 11 an egregious Fourth Amendment violation regardless of 12 whether government agents physically threaten or harm 13 residents. 14 As in this case, the deliberate, nighttime, We are persuaded that the facts as alleged by Sicajau 15 portray an egregious Fourth Amendment violation requiring 16 application of the exclusionary rule. 17 determination that Sicajau s failure to personally observe 18 the officers entry of the home rendered him incapable of 19 establishing a prima facie case for suppression. 20 discussed, Sicajau s affidavit and supporting testimony 21 describing the circumstances of the raid were sufficient to 22 carry this burden. 23 secure voluntary consent to enter the home thereby 24 effecting the basic Fourth Amendment violation that must We reject the IJ s As Thus, assuming that ICE officers did not 27 1 underlie any egregious violation certain aspects of the 2 raid as alleged by Sicajau transform the constitutional 3 transgression depicted here into an egregious Fourth 4 Amendment violation. 5 Initially, we note that ICE officers purposely arrived 6 at Sicajau s home in the pre-dawn hours, presumably for the 7 purpose of startling the sleeping residents, and, perhaps, 8 with the aim of coercing confused consent.11 9 although the officers apparently secured their target, 10 Cojon, they returned to the home without a warrant and 11 without reasonable suspicion that additional illegal aliens 12 remained behind the home s locked doors. 13 failed to offer any evidence showing that its officers 14 obtained voluntary consent to enter the home; the only 15 record of the raid that we have comes from Sicajau and 16 Ochoa. 17 statements support finding that ICE officers entered the In addition, The Government In the absence of evidence to the contrary, their 18 19 20 11 According to Supervisory Detention and Deportation Officer Williams, ICE officers aim to arrive at residences between 5:30 a.m. and 6:00 a.m. to ensure that target aliens would be present. Joint App x 231. But the record in this case (and in the companion case argued in tandem with the case at bar) belies Williams assertion that ICE officers never conduct raids starting before 5:30 a.m. 28 1 home without consent in egregious violation of the Fourth 2 Amendment.12 3 We conclude that the best course is to remand for 4 further proceedings to give the Government a meaningful 5 opportunity to show that its officers obtained consent to 6 enter Sicajau s home. 7 proof of voluntary consent to enter Sicajau s home and 8 bedroom would negate his Fourth Amendment claim, he has 9 raised separate arguments regarding the admissibility of the We note that although Government 10 evidence under the Fifth Amendment and DHS regulations. In 11 light of our decision to remand, we decline to reach those 12 arguments here. 13 suppress evidence of alienage is granted, we direct the IJ 14 and the BIA to our opinion issued in a companion case also 15 decided today for guidance with respect to what types of 16 identity evidence are subject to exclusion. Finally, if, on remand, Sicajau s motion to See Jose 17 12 We believe that ICE officers conduct throughout the raid lends support to our conclusion that the Fourth Amendment violation depicted here was egregious the officers actions were more than merely disrespectful with regard to the residents constitutional rights. Specifically, ICE officers pounded on Sicajau s bedroom door, corralled Sicajau and other handcuffed residents in the living room, searched Sicajau s room for desirable identification documents, informed arrestees that they could relieve themselves in a restaurant parking lot while officers ate breakfast, and, in total, detained Sicajau for approximately eighteen hours. 29 1 Pretzantzin, et al. v. Holder, No. 11-2867-ag, F.3d , 2 (2d Cir. 2013). 3 4 5 Conclusion For the foregoing reasons, the decision of the Board of 6 Immigration Appeals is hereby VACATED and REMANDED. 7 remand, the Government bears the burden of proof to show 8 that ICE officers obtained voluntary consent to enter the 9 home and Sicajau s bedroom. 30 On
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