Pinto-Montoya v. Mukasey ( 2008 )

05-6541-ag
Pinto-Montoya v. Mukasey
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2007
(Argued: February 27, 2008 Decided: August 26, 2008)
Docket No. 05-6541-ag
EFRAULIO PINTO -MONTOYA and ISMAR PINTO -MONTOYA,
Petitioners,
v.
MICHAEL B. MUKASEY , Attorney General,*
Respondent.
Before: CABRANES, POOLER, AND SACK , Circuit Judges.
Petitioners seek review of an order of the Board of Immigration Appeals (“BIA”) affirming an
Immigration Judge’s (“IJ”) order of removal. The IJ denied petitioners’ motion to suppress statements
obtained after immigration officials allegedly seized them on the basis of their race and nationality for
questioning at the airport. We conclude that petitioners’ contact with immigration officials did not
constitute a seizure within the meaning of the Fourth Amendment and, accordingly, their statements
were properly admitted.
Petition denied.
JON E. JESSEN , Stamford, CT, for Petitioners.
SHANE CARGO , Assistant United States Attorney (Michael J.
Garcia, United States Attorney, on the brief, Beth E.
Goldman, Assistant United States Attorney, of counsel),
United States Attorney’s Office for the Southern District
of New York, New York, NY, for Respondent.
*
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is
automatically substituted for former Attorney General Alberto R. Gonzales as respondent in this case.
1
PER CURIAM :
Ismar and Efraulio Pinto-Montoya petition for review of an order of the Board of Immigration
Appeals (“BIA”) denying petitioners’ motion for reconsideration of a prior BIA order summarily
dismissing their appeal. See In re Pinto-Montoya, Nos. A78 428 273, A78 428 277 (B.I.A. Oct. 28, 2005);
In re Pinto-Montoya, Nos. A78 428 273, A78 428 277 (BIA Aug. 11, 2005), aff’g In re Pinto-Montoya, Nos.
A78 428 273, A78 428 277 (Immig. Ct. N.Y. City, Feb. 24, 2004). The Immigration Judge (“IJ”), after
concluding that petitioners had not been stopped or seized by immigration officials during an incident
at the airport, denied petitioners’ motion to suppress the statements they made to the officials and
ordered them removed. On appeal, petitioners argue that (1) their encounter with immigration officials
at the airport was a seizure within the meaning of the Fourth Amendment; and (2) that the alleged stop
was sufficiently “egregious” to justify suppression of the evidence obtained because petitioners were
stopped solely on the basis of their race and nationality.
We conclude that petitioners’ contact with immigration officials at the airport was not a seizure
within the meaning of the Fourth Amendment because no force, threat of force, or other assertion of
authority was used by the officials. Because petitioners were not seized, the statements obtained from
petitioners by the immigration officials were properly admitted.
BACKGROUND
Petitioners, brothers who are natives and citizens of Guatemala, arrived at John F. Kennedy
airport in New York on a flight from Los Angeles on February 8, 2001. As they disembarked from the
plane, immigration agents in plainclothes approached them and asked them, in Spanish, about their
immigration status. When petitioners admitted that they were in the United States illegally, the officers
detained them and conducted additional questioning. As part of the questioning, both petitioners
signed sworn statements conceding that they entered the United States unlawfully and were “in the
United States in violation of U.S. immigration law.”
2
Shortly after the events at the airport, the INS commenced removal proceedings against
petitioners. Petitioners did not file applications for relief from removal or contest their status but,
instead, moved to suppress the evidence obtained during their questioning at the airport on the basis
that they had been stopped at the airport solely on the basis of their race and nationality. Respondents
contended that petitioners were apprehended pursuant to a larger interdiction project conducted by the
former Immigration and Naturalization Service (“INS”). In support of their position, respondents
submitted a declaration from the agent who “signed off” on the form documenting petitioners’
apprehension. Although the agent was not present when petitioners were interviewed and detained, he
was the supervisor of the operation under which petitioners were selected for questioning.
The declaration explained that the INS, after “observ[ing] various trends in the routes taken by
[aliens illegally smuggled into the country],” had developed a protocol for identifying and questioning
suspected smugglers and their clients. Plainclothes agents would approach individuals as they were
disembarking from a plane, ask whether they would be willing to speak to the agents, and permit them
to walk away if they did not. If an individual agreed to speak to the agents, he would be taken to a
separate area, where the agents would reveal their identities and ask him questions about his
immigration status. According to the protocol, “[t]he questioning at this point would also be voluntary.
If the [person] did not want to answer the questions [he] would be free to leave.” Individuals who
“provided sufficient information to establish alienage and removability” would be taken into custody
and transported to an INS office for processing. The agent described the criteria used in the protocol
as follows:
In determining who would be identified for questioning, the protocol dictated that Agents look
for passengers typically of Mestizo physical appearance (a person of mixed Spanish and
American Blood [sic]) who would be inappropriately dressed in light of the season (i.e., they
would not be wearing or carrying cold weather coats in the winter). The targeted people would
also generally not have any baggage and bypass the baggage claim. They often would also carry
airline issued food with them off the plane.
Petitioners arrived in New York on one of the flights identified by the INS as “likely to contain illegal
aliens.”
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The IJ, after reviewing the parties’ submissions on the appropriateness of suppression, held a
hearing to take testimony from petitioners regarding the circumstances under which they were
approached and questioned. Petitioners testified that they did not meet any of the criteria in the
protocol other than choice-of-flight and racial characteristics; they were wearing jackets, had checked
luggage, and did not take airline food with them. They further testified that, as they left the plane, they
were approached by a man dressed in casual clothing who asked if they had “papers” and inquired
whether they had “permission to stay in this country.” Both answered these questions in the negative.
Ismar Pinto-Montoya stated that he answered the questions rather than walking away because the
individual asking the questions was standing in front of him and “could have pulled [him] back.”
Efraulio Pinto-Montoya stated that he agreed to speak with the agent because other passengers from
the plane—all of whom were described by the Pinto-Montoyas as “Spanish”—were being questioned at
the same time. Both petitioners testified that the immigration officials did not identify themselves as
such until after petitioners admitted that they were in the country illegally. Petitioners were then
transported to another location where they were questioned by the same agents and signed the
statements conceding their unlawful entry.
Based on petitioners’ testimony, the IJ concluded that the petitioners’ contact with immigration
officials at the airport was not a stop or seizure because they spoke to the agents voluntarily.
[Petitioners] did not testify to any actions by the agent[s] that would be intimidating. There was
no testimony that voices were raised or that threats were made. No one told [petitioners] that
they had to answer the question[s] or that certain consequences would flow from not answering
the questions.
The IJ also observed that the circumstances, as described by petitioners, were such that a reasonable
person would have believed himself free to leave: the officers were in plainclothes, did not identify
themselves as immigration officials and had no other physical indicia—for example,
badges—identifying them as law enforcement officials. As the IJ noted: “For all [petitioners] knew the
person who asked them about their status was a civilian. . . .” The IJ further concluded that even if
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petitioners had been seized within the meaning of the Fourth Amendment, their detention and
questioning was not so “egregious” as to justify suppression.
The BIA summarily dismissed petitioners’ appeal, and petitioners filed a motion for
reconsideration of that decision. After determining that “there was no stop or seizure at the airport”
and that there was “nothing unreasonable or egregious about the officer[s’] encounter with the
[petitioners],” the BIA denied petitioners’ motion for reconsideration.
DISCUSSION
“When the BIA briefly affirms the decision of an IJ and adopts the IJ’s reasoning in doing so,
we review the IJ’s and the BIA’s decisions together.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524,
528 (2d Cir. 2006) (alteration and internal quotation marks omitted). We review the agency’s legal
conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir. 2007), and its factual
findings, including adverse credibility determinations, under the substantial evidence standard, treating
them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary,” 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir. 2007).
Our immigration laws permit an immigration official to “interrogate” without a warrant “any
alien or person believed to be an alien as to his right to be or to remain in the United States.” 8 U.S.C.
§ 1357(a)(1). The applicable regulations governing “interrogation and detention not amounting to
arrest,” 8 C.F.R. § 287.8(b), state that
(1) Interrogation is questioning designed to elicit specific information. An immigration
officer, like any other person, has the right to ask questions of anyone as long as the
immigration officer does not restrain the freedom of an individual, not under arrest, to
walk away.
(2) If the immigration officer has a reasonable suspicion, based on specific articulable facts,
that the person being questioned is, or is attempting to be, engaged in an offense against
the United States or is an alien illegally in the United States, the immigration officer may
briefly detain the person for questioning.1
1
The remainder of the provision states that
Information obtained from this questioning may provide the basis for a subsequent arrest, which must be
effected only by a designated immigration officer, as listed in 8 C.F.R. § 287.5(c). . . .
8 C.F.R. § 287.8(b)(3).
5
Petitioners’ claim raises the question of whether the exclusionary rule applies in immigration
proceedings at all and under what circumstances it might apply. In criminal proceedings, evidence
obtained as a result of an illegal seizure or an unlawful arrest is, of course, subject to the exclusionary
rule. See, e.g., Wong Sun v. United States, 371 U.S. 471, 484-85 (1963); Mosby v. Senkowski, 470 F.3d 515,
520 (2d Cir. 2006). A removal proceeding, however, is “a purely civil action to determine eligibility to
remain in this country, not to punish an unlawful entry, though entering or remaining unlawfully in this
country is itself a crime.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see also 8 U.S.C. § 1229a
(governing removal proceedings). As a result, many of the protections afforded defendants in criminal
proceedings are “‘are not necessarily constitutionally required’” in immigration proceedings. Felzcerek v.
INS, 75 F.3d 112, 115 (2d Cir. 1996) (quoting Dor v. Dist. Dir., INS, 891 F.2d 997, 1003 (2d Cir. 1989)).
In Lopez-Mendoza, the Supreme Court considered the applicability of the exclusionary rule to
immigration proceedings. See 468 U.S. at 1039. After balancing the costs of exclusion against the likely
social benefits, the Court ruled that the exclusionary rule does not apply. See id. at 1050 (“[W]e are
persuaded that the . . . balance between costs and benefits comes out against applying the exclusionary
rule in civil deportation hearings held by the INS.”). As the Court explained, the deterrence value of
excluding evidence obtained by immigration officials by means of an allegedly unlawful search is
“small” because the agency has already taken “sensible and reasonable” steps to deter such violations,
id. at 1050—for example, providing proper training to new immigration officers, and investigating and
punishing agents who commit Fourth Amendment violations, id. at 1044–45. On the other hand,
“[t]he costs of applying the exclusionary rule in the context of civil deportation [proceedings] are high”
because application of the rule would result in the release of persons whose continued presence in the
country constituted a crime. Id. at 1050.
A plurality of the Court, in a separate section of the opinion, specifically reserved the question
of whether an exclusionary remedy would be available “if there developed good reason to believe that
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Fourth Amendment violations by INS officers were widespread”2 or if immigration officials committed
“egregious violations of Fourth Amendment or other liberties that might transgress notions of
fundamental fairness and undermine the probative value of the evidence obtained.” Id. at 1050-51
(citing cases in which conduct of government officials violated the Due Process Clause). We have
adopted the reservations of the Lopez-Mendoza plurality as part of the “the law of our circuit,” holding
that “exclusion of evidence is appropriate under the rule of Lopez-Mendoza if record evidence
established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that
the violation—regardless of its egregiousness or unfairness—undermined the reliability of the evidence
in dispute.” Almeida-Amaral v. Gonzales, 461 F.3d 231, 234, 235 (2d Cir. 2006). In addition, we have
observed that “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; accord Melnitsenko v. Mukasey, 517 F.3d 42, 47 (2d Cir. 2008); but see Amedia-Amaral, 461 F.3d at
237 (concluding that petitioner’s mere assertion, without more, that he was stopped on the basis of race
was insufficient to establish that the stop was race-based).
Respondents maintain that the Pinto-Montoyas were selected for questioning “at least in part[]
because they arrived on a particular flight . . . known to be used for alien smuggling.” Petitioners,
however, contend that they were targeted solely on the basis of race. In addition, although the IJ and
BIA both concluded that there was nothing unreasonable or egregious about the encounter between
petitioners and the immigration officials, the affidavit of the special agent in charge of the operation
indicates that “[i]n determining who would be identified for questioning, the protocol dictated that
Agents look for passengers” who, inter alia, had a “Mestizo physical appearance.”
2
In their submissions to the Court, petitioners argue for the first time that Fourth Amendment violations by
immigration authorities are so widespread as to make exclusion appropriate in these circumstances. Because they did not
raise the issue before the BIA, it has not been exhausted and is therefore not appropriately before us. See 8 U.S.C. §
1252(d)(1); Melnitsenko v. Mukasey, 517 F.3d 42, 47 (2d Cir. 2008).
7
We need not consider whether a stop and seizure pursuant to the protocol might constitute
conduct so egregious as to justify suppression because we conclude that, in the instant case, petitioners
were not seized within the meaning of the Fourth Amendment. Cf. INS v. Delgado, 466 U.S. 210, 221
(1984) (“[Petitioners] may only litigate what happened to them, and our review of their description of
the encounters with the INS agents satisfies us that the encounters were classic consensual encounters
rather than Fourth Amendment seizures.”).
The dispositive inquiry for determining whether the agents’ contact with petitioners amounted
to a seizure within the meaning of the Fourth Amendment is whether the encounter was consensual.
See id.; see also Florida v. Bostick, 501 U.S. 429, 436-37 (1991) (discussing the holding and reasoning of
Delgado with approval). “‘[M]ere police questioning does not constitute a seizure.’” Muehler v. Mena,
544 U.S. 93, 101 (2005) (quoting Bostick, 501 U.S. at 434). Rather, we must ask whether, under the
particular circumstances presented, “a reasonable person would have believed that he was not free to
leave if he [did] not respond[]” to the questions put to him. Delgado, 466 U.S. at 216; accord United States
v. Drayton, 536 U.S. 194, 200 (2002) (“Law enforcement officers do not violate the Fourth
Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or
in other public places and putting questions to them if they are willing to listen.”); Terry v. Ohio, 392 U.S.
1, 19 n.16 (1968) (“Obviously, not all personal intercourse between policemen and citizens involves
‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”).
Physical restraint or an assertion of authority to restrain a person’s freedom of movement by
law enforcement officers would, in most instances, constitute a seizure. See, e.g., Brendlin v. California,
127 S. Ct. 2400, 2405 (2007) (“A person is seized by [a law enforcement officer] and thus entitled to
challenge the [officer’s] action under the Fourth Amendment when the officer, by means of physical
force or show of authority, terminates or restrains his freedom of movement through means intentionally
8
applied.” (internal quotation marks and citations omitted)). Petitioners’ testimony before the IJ does not
suggest that they were physically restrained, ordered to stop, or otherwise coerced to answer questions
when the agents approached them. Nor can petitioners plausibly argue that they answered the agents’
questions in response to an assertion of authority. Petitioners testified that they were not aware that the
persons approaching them were law enforcement officers. Indeed, the agents were not dressed in
uniform, did not display their badges, or otherwise identify themselves as immigration officials. Cf.
Drayton, 536 U.S. at 204 (noting that the Supreme Court has “rejected the claim that the defendant was
seized when an officer approached him in an airport, showed him his badge, and asked him to answer
some questions” and, in addition, has held that immigration officials “wearing badges and questioning
workers in a factory did not constitute a seizure”).
Petitioners’ contention that the agents were blocking the ramp and thereby restraining
petitioners’ freedom of movement does not compel a contrary conclusion. In Delgado, the Supreme
Court considered and rejected a similar argument that stationing agents near the means of egress
constituted a seizure of all of the people on the other side of the exit. As the Court explained:
[T]here is nothing in the record indicating that . . . the agents at the doors actually [prevented
people from leaving]. The obvious purpose of the agents’ presence at the factory doors was to
insure that all persons in the factories were questioned. The record indicates that the INS
agents’ conduct in this case consisted simply of questioning employees and arresting those they
had probable cause to believe were unlawfully present in the factory. This conduct should have
given respondents no reason to believe that they would be detained if they gave truthful
answers to the questions put to them or if they simply refused to answer. If mere questioning
does not constitute a seizure when it occurs inside [a place], it is no more a seizure when it
occurs at the exits.
Delgado, 466 U.S. at 218. For similar reasons, petitioners cannot argue that the agents’ position at the
end of the ramp resulted in the seizure of all of the people aboard the plane who had not yet entered
the airport terminal, much less that they were seized as a result.
Petitioners have not argued that the immigration laws were violated or that the agents exceeded
their authority to question aliens or persons believed to be aliens. See 8 U.S.C. § 1357(a)(1); see also 8
9
C.F.R. § 287.8(b)(1) (“An immigration officer, like any other person, has the right to ask questions of
anyone as long as the immigration officer does not restrain the freedom of an individual, not under
arrest, to walk away.”). Nor do we find any record evidence of any such violation.
Because we conclude that petitioners were not seized within the meaning of the Fourth
Amendment, we need not consider what role petitioners’ racial characteristics played in the agents’
decision to approach them for questioning.
CONCLUSION
For the reasons stated above, the petition for review is denied.
10