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Pretzantzin v. Holder

United States Court of Appeals, Second Circuit

July 31, 2013


Argued: Thursday, March 14, 2013

Amended: September 16, 2013

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 Amicus Curiae American Civil Liberties Union Foundation.

Before: Wesley, Droney, Circuit Judges, Nathan, District Judge.[**]

Wesley, Circuit Judge:

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.


In the early morning hours of March 5, 2007, Petitioner Pedro Estanislado Pretzantzin ("Estanislado Pretzantzin") awoke to a loud banging; he opened his third-floor bedroom window to see a group of armed, uniformed officers at his apartment building's front door in Jamaica, New York.[1] The officers were from the Department of Homeland Security ("DHS") and worked for Immigrations and Customs Enforcement ("ICE"). Estanislado Pretzantzin shared the apartment with members of his extended family, including Petitioners Jose Matias Pretzantzin, Pacheco Pretzantzin, Pedro Pacheco-Lopez ("Pacheco-Lopez"), and Juan Miguel Pretzantlin-Yax.[2] Through the open window, the officers informed Estanislado Pretzantzin that they were "the police" and ordered him downstairs to open the door. Estanislado Pretzantzin complied.

After confirming that he lived on the third floor, one of the officers led Estanislado Pretzantzin back upstairs and ordered him to allow the other officers inside. At no point during the encounter did the officers explain their presence, present a warrant, or request consent to enter the apartment. Once inside, ICE officers rounded up the remaining Petitioners, who were asleep in their beds, assembled them in the living room, and demanded to see their "papers." It appears that only Pacheco-Lopez – the sole Petitioner who had a passport – was able to comply with the officers' directive. The officers did not ask Estanislado Pretzantzin whether he had legal status in the United States before arresting him.

All Petitioners were handcuffed and transported to ICE facilities at 26 Federal Plaza, in New York City, where they were notified for the first time that they were in the custody of immigration officials. ICE officers interviewed Petitioners and told them to sign statements that were not read to them in English (which Petitioners speak minimally if at all); these statements were subsequently memorialized on Form I-213s (Record of Deportable/Inadmissible Alien). Petitioners were released from custody later that afternoon and served with Notices to Appear, charging them with removability under Immigration and Nationality Act ("INA") § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as natives and citizens of Guatemala who had entered the United States without inspection.

Following consolidation of their proceedings, Petitioners appeared before Immigration Judge George T. Chew (the "IJ") and conceded that they were the individuals named in the Notices to Appear, but denied the charges of removability and moved to suppress the evidence against them and terminate their proceedings. Petitioners argued that they were entitled to the suppression of all statements and evidence obtained as a consequence of the nighttime, warrantless raid of their home under the Fourth and Fifth Amendments. In opposition, the Government argued, inter alia, that it possessed independent evidence of Petitioners' alienage. Specifically, the Government claimed that it had obtained Petitioners' Guatemalan birth certificates from the United States Embassy in Guatemala using Petitioners' names, and that it also had Petitioner Pacheco-Lopez's criminal history report, arrest record, and fingerprint card from a 1994 theft of services conviction for subway-turnstile jumping. The arrest report listed Guatemala as Pacheco-Lopez's birthplace.

The Government ostensibly relied on the admission in Petitioners' motion to suppress (indicating that Petitioners were related) and Pacheco-Lopez's arrest records (confirming that he was born in Guatemala) to target the United States Embassy in Guatemala for the birth certificate request. In connection with Petitioners' birth certificates, the Government proffered a Federal Express delivery record label for a package sent from ICE's facilities at 26 Federal Plaza to the United States Embassy in Guatemala, but it did not submit a copy of the actual birth certificate request or any other evidence bearing on the package's contents. Following Petitioners' testimony at a subsequent suppression hearing, [3]the IJ invited the Government to proffer a warrant, statements from the officers, or any other evidence to justify their intrusion into Petitioners' home. The Government, ...

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