ISAAC ANTONIO MALDONADO, JUAN ALBERTO BARRERA, JOSE RODOLFO CABRERA, JUAN CARLOS SIMBANACH, EDGAR ELADIO PREDROUAN, Petitioners,
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent
Argued April 9, 2014
[Copyrighted Material Omitted]
Petitioners seek review of orders of the Board of Immigration Appeals dismissing their appeals from decisions of the Immigration Judge and denying their motions to remand and reopen. The Immigration Judge denied Petitioners' motions to hold suppression hearings, to suppress evidence, and to terminate removal proceedings. Petitioners argue that (1) " egregious" violations of their Fourth Amendment rights require suppression or at least a suppression hearing; (2) even if the violations were not egregious, the involvement of local police implicates ordinary exclusionary principles, which a fortiori require suppression; (3) regulatory and subregulatory violations committed by federal agents warrant termination; and (4) the BIA erred in denying motions to remand and reopen based on additional evidence uncovered in Petitioners' separate civil rights suit. We deny the petitions for review.
MICHAEL J. WISHNIE, Supervising Attorney (Muneer I. Ahmad, Supervising Attorney; Alex Hemmer, Law Student Intern; Roberto Saldaña, Law Student Intern; Trinity Brown, Law Student Intern; on the brief), Jerome N. Frank Legal Services Organization, New Haven, CT for Petitioners.
ANDREW C. MACLACHLAN, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice (Stuart F. Delery, Assistant Attorney General, Civil Division; Donald E. Keener, Deputy Director, Office of Immigration Litigation; on the brief), Washington, DC for Respondent.
Before: KEARSE, JACOBS, and LYNCH, Circuit Judges. Judge LYNCH dissents in a separate opinion. GERARD E. LYNCH, Circuit Judge, dissenting.
DENNIS JACOBS, Circuit
Petitioners seek review of orders of the Board of Immigration Appeals (" BIA" ) dismissing their appeals from decisions of the Immigration Judge (" IJ" ) and denying their motions to remand and reopen. The IJ denied Petitioners' motions to hold suppression hearings, suppress evidence, and terminate removal proceedings. Petitioners argue that (1) " egregious" violations of their Fourth Amendment rights require suppression of evidence, or at least a suppression hearing; (2) even if the violations were not egregious, the involvement of local police implicates ordinary exclusionary principles, which a fortiori require suppression; (3) regulatory and subregulatory violations committed by U.S. Immigration and Customs Enforcement (" ICE" ) agents warrant termination; and (4) the BIA erred in denying motions to remand and reopen based on additional evidence uncovered in Petitioners' separate civil rights suit. We reject these arguments, and deny the petitions for review.
On September 19, 2006, Petitioners were among persons gathered in Kennedy Park, Danbury, Connecticut, to seek work as day laborers. That day, the Danbury Police Department (" DPD" ) and ICE were jointly conducting a sting operation in the area. Petitioners entered a nearby, unmarked vehicle driven by an undercover DPD officer, and were transported to a parking lot and arrested. During processing, Petitioners made incriminating statements about their alienage, which were memorialized on " Form I-213s" (" Record[s] of Deportable/Inadmissible Alien" ). Petitioners were served with Notices to Appear, which alleged that they are natives and citizens of Ecuador and that they entered the United States without inspection.
Petitioners appeared before an IJ and moved to suppress their Form I-213s and to terminate removal proceedings. In January 2008, the IJ denied the motions and ordered Petitioners removed.
Petitioners appealed to the BIA and also filed motions to remand, asserting that previously unavailable evidence demonstrated that they had been arrested by the DPD, not by ICE. In July 2010, the BIA dismissed the appeals and denied the motions to remand. In 2011, the BIA denied Petitioners' motions to reopen proceedings based on new evidence produced in their civil rights suit against ICE and Danbury's mayor. This consolidated appeal followed.
" 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) (internal quotation marks omitted). " We review the agency's factual findings for substantial evidence and questions of law de novo." Cotzojay v. Holder, 725 F.3d 172, 177 n.5 (2d Cir. 2013) (citations omitted).
Petitioners argue that suppression, or at least a suppression hearing, was required because of " egregious" violations of Fourth Amendment rights.
The exclusionary rule does not apply to civil deportation proceedings, in part because " a deportation hearing is intended to provide a streamlined determination of eligibility to remain in this country, nothing more." INS v. Lopez-Mendoza, 468 U.S. 1032, 1034, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984). The Court left open whether exclusion might nevertheless be required for unspecified " egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness." Id. at 1050.
This Court has since answered the question left open in Lopez-Mendoza by holding that exclusion of evidence is appropriate if " record evidence establishe[s] . . . that an egregious violation that was fundamentally unfair had occurred." Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006). Almeida-Amaral posited in dicta some features of egregious abuse: (1) " if an individual is subjected to a seizure for no reason at all, that by itself may constitute an egregious violation, but only if the seizure is sufficiently severe" ; and (2) " even where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the stop was based on race (or some other grossly improper consideration)." Id. at 235. No egregious violation occurred in that case because " nothing in the record" suggested that the seizure was particularly " severe" ; and petitioner " offer[ed] nothing other than his own intuition to show that race played a part in the arresting agent's decision." Id. at 236-37. The court, therefore, had no occasion to explore: (1) how severe an abuse must be to be egregious; (2) what it means for a stop to be " based on race" ; and (3) what " other" considerations are " grossly improper."
What is clear, however, is that " egregious" by definition is very bad indeed, and that the Supreme Court contemplated only such abuses as " transgress notions of fundamental fairness." As we have explained, the test for egregiousness is more demanding than the test for overcoming qualified immunity. See Cotzojay, 725 F.3d at 183 n.10. The standard is therefore stringent, entails a shock to the conscience, and is rarely satisfied.
To warrant a hearing at which the petitioner can adduce evidence in support
of suppression, he must do more than simply ask. In Cotzojay, we cited with approval the BIA's burden-shifting framework for adjudicating suppression motions in the deportation context: " if the petitioner offers an affidavit that 'could support a basis for excluding the evidence in . . . question,' it must then be supported by testimony. If the petitioner establishes a prima facie case, the burden of proof shifts to the Government to show why the evidence in question should be admitted." Id. at 178 (quoting Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988)). That is no simple matter: An affidavit cannot support a basis for exclusion unless, if taken as true, it makes out an egregious constitutional violation. See id. The affidavit in Cotzojay satisfied this test, because it averred facts that were appalling under any standard: a " deliberate, nighttime, warrantless entry into an individual's home, without consent and in the absence of exigent circumstances." Id. at 183.
The affidavits in this case do not suggest egregious constitutional violations, and therefore " could [not] support a basis for excluding the evidence." Id. at 178.
The affidavits state, in sum and substance:
(1) Petitioner was in Kennedy Park on September 19, 2006 " to find work for the day" ;
(2) " [e]mployers drive to Kennedy Park in the mornings to hire people for short-term manual labor projects" ;
(3) a vehicle drove up to the park;
(4) " [t]he driver of the vehicle did not appear to be looking for any specific individuals " and instead " looked like he would take for the job whoever approached him first " ;
(5) Petitioner got in the car with some other individuals, thinking he was going to a job site;
(6) Petitioner and other passengers were driven to a parking lot, and pushed, handcuffed, and arrested by " law enforcement officers" ; and
(7) Petitioner was questioned and processed at DPD headquarters, and then transported to Hartford and to Boston to enter deportation proceedings.
J.A. 26-27 (emphases added). Two affidavits state that, of the 40-70 day laborers who stand in the park, the " majority" or " most" are Latino. J.A. 503, 522. Some affidavits, though not all, state that the Petitioner was denied permission to use a phone for some period of days. See, e.g., J.A. 27.
Petitioners therefore aver only that they approached and entered the undercover vehicle without duress; they were self-selected; the driver did not appear to be looking for any specific individuals; and the driver seemed willing to take whoever got in first. These averments do not support a finding that an egregious constitutional violation occurred.
Petitioners do not allege that they were treated in a particularly severe manner. As the BIA explained:
The respondent does not claim that he was subjected to physical abuse, threats, promises, denial of food or drink, or long hours of interrogation which prompted his admissions. In fact, the respondent's affidavit provides few details about his questioning by an immigration officer and omits such critical information as when and where the interrogation took place, the length of the interrogation, and the circumstances under which the respondent provided the information recorded on the Form I-213.
In re Isaac Antonio Maldonado, No. A98 300 507, at 3 (B.I.A. July 19, 2010).
Nor is there any other circumstance that can be fairly characterized as egregious. The group that was targeted was ostensibly assembled to offer themselves for day labor, an occupation that is one of the limited options for workers without documents. Bystanders and casual park visitors were excluded by no criteria other than self-selection. Nothing in Petitioners' account suggests that they were gathered by the authorities, let alone that they were selected by ...