Medley v. Garland ( 2023 )

20-3079
Medley v. Garland
BIA
Farber, IJ
A 206 030 427
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2022
(Argued: October 13, 2022 Decided: June 15, 2023)
Docket No. 20-3079
LEON LEONARD MEDLEY,
Petitioner,
v.
MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW FROM THE
BOARD OF IMMIGRATION APPEALS
Before:
LEVAL, CHIN, and BIANCO, Circuit Judges.
Petition for review of a decision of the Board of Immigration
Appeals affirming the decision of an Immigration Judge denying petitioner's
motions to terminate removal proceedings. Petitioner argues that regulatory and
constitutional violations that occurred during his allegedly illegal arrest and
interrogation required termination of the proceedings.
PETITION DENIED.
RYAN BREWER (Zoe Levine, on the brief), The Bronx
Defenders, Bronx, New York, for Petitioner.
TIM RAMNITZ, Senior Litigation Counsel (Shelley
R. Goad, Assistant Director, on the brief), for
Brian Boynton, Assistant Attorney General
Civil Division, U.S. Department of Justice,
Washington, District of Columbia, for
Respondent.
CHIN, Circuit Judge:
Petitioner Leon Leonard Medley seeks review of a June 25, 2019,
decision of the Board of Immigration Appeals (the "BIA") affirming the decision
of an Immigration Judge (the "IJ") denying his motions to terminate his removal
proceedings. Medley is a 32-year-old native and citizen of Jamaica who entered
the United States in 2006 and overstayed his visitor visa. On December 20, 2017,
2
Immigration and Customs Enforcement ("ICE") officers arrested Medley
pursuant to a warrant issued by the Department of Homeland Security ("DHS").
In removal proceedings before the IJ, Medley argued that the immigration court
lacked jurisdiction over his removal proceedings and the officers violated agency
regulations and his fundamental rights during his arrest and interrogation. The
IJ rejected the jurisdictional argument and held that termination of the removal
proceedings was not warranted because evidence of Medley's removability
existed independent of any evidence obtained as a result of his arrest. The BIA
affirmed. We agree that the agency had jurisdiction and that termination of the
removal proceeding was not warranted. Accordingly, we deny the petition for
review.
BACKGROUND
I. The Facts
The following facts are drawn from Medley's affidavit in support of
his multiple motions to terminate and the Form I-213 submitted by DHS
detailing the circumstances of his arrest. See S. App'x at 37-43; A.R. at 1865-68.
As noted below, some facts are sharply disputed.
3
Medley last entered the United States on June 7, 2006, on a non-
immigrant visa and was authorized to stay until December 6, 2006. He remained
in the country beyond that date, settling in the New York area. He is married to
a U.S. citizen and has three U.S. citizen children.
From 2009 to 2017, Medley was arrested thirty-two times and
charged with, inter alia, assault, attempted assault, resisting arrest, strangulation,
endangering the welfare of a child, burglary, criminal mischief, domestic
violence, menacing, criminal possession of a weapon, harassment, and unlawful
possession of marijuana. These arrests resulted in seven convictions for
disorderly conduct, one conviction for second degree harassment, and one
conviction for unlawful possession of marijuana. With regard to the conviction
for second degree harassment, an order of protection was taken out against him
for the benefit of his mother. The criminal charges and convictions for marijuana
possession and disorderly conduct alerted DHS to his presence. On September
19, 2017, DHS issued a Notice to Appear (the "NTA") and a warrant for Medley's
arrest as a noncitizen subject to removal. 1
1 This opinion uses the term "noncitizen" as equivalent to the statutory term
"alien." See Nasrallah v. Barr, 140 S. Ct. 1683, 1689 n.2 (2020); Santos-Zacaria v. Garland,
No. 21-1436, 2023 WL 3356525, n.1 (U.S. May 11, 2023).
4
On the morning of December 20, 2017, three ICE officers arrested
Medley inside a 7-Eleven convenience store in New York City. The officers
approached Medley and, after he provided them with his name, proceeded to
arrest him. Medley was accompanied by his wife and three-week-old daughter.
He had left the hospital earlier that day, following a three-night stay to treat an
infected wart, which was surgically removed from his hand, and he had
intended to return to the hospital that same day, after running necessary errands.
The parties differ as to how the arrest transpired. Medley alleges
that he asked the officers to be careful while arresting him because he had just
had surgery and his hand was still bandaged. He contends that the officers
ignored his entreaties and pushed him against a display rack, causing Medley's
hand to begin bleeding through the bandage as they handcuffed him. The
officers also seized and discarded Medley's pain medication and ignored his
multiple requests that he be taken back to the hospital to treat his hand. When
the officers searched Medley's pockets, they found a "Know Your Rights" card
that Medley's immigration lawyer had given him, as well as the lawyer's
business card. The officers threw the "Know Your Rights" card on the ground
and kept the business card.
5
DHS contends, however, that Medley was arrested without incident.
According to the Form I-213, Medley informed the officers of his recent hospital
stay but otherwise told them that he was in good health.
According to Medley, it was only after he was handcuffed and
placed into a vehicle that the officers identified themselves as immigration
officials. The officers proceeded to drive Medley to the ICE facility at 26 Federal
Plaza in downtown Manhattan. At one point, Medley alleges, the officers pulled
over and took a group selfie outside with the vehicle in the background.
Upon arriving at the facility, Medley was placed in a holding cell
and then brought to a room where several officers -- including some of those
involved in the arrest -- began questioning him. Medley told the officers that he
would provide his name and other biographical details but that he would not
answer any other questions without his lawyer present. He asked that the
officers contact his lawyer using the business card they had taken, but they
declined to do so.
The officers continued to question Medley and attempted to get him
to sign documents, which Medley refused to do. Medley contends that he
requested and was refused food and water throughout the interrogation.
6
According to DHS's account, however, Medley was provided with a meal
approximately one hour after arriving at the facility.
After his lawyer sent a message to the facility invoking Medley's
rights, the officers stopped questioning him. Medley was then moved to another
facility where he received medical care for his hand.
II. Procedural History
During the interrogation at the ICE facility, the officers served
Medley with the NTA and DHS arrest warrant. The NTA charged Medley with
removability as a result of his overstaying his visa, pursuant to § 237(a)(1)(B) of
the Immigration and Nationality Act (the "INA"). 8 U.S.C. § 1227(a)(1)(B). The
NTA did not include the date, time, and location of the hearings related to his
removal proceedings. Medley was subsequently sent notices that provided these
missing details and attended all of his hearings with counsel. On December 29,
2017, DHS initiated removal proceedings against Medley pursuant to the NTA.
On February 15, 2018, Medley filed a motion to terminate the
removal proceedings based on his purportedly illegal arrest. S. App'x at 33. He
alleged that the ICE agents violated his Fourth and Fifth Amendment rights and
agency regulations by using excessive force, failing to identify themselves, failing
7
to obtain an arrest warrant, conducting a warrantless search, and leaving him
unattended in a vehicle. He also alleged that the agents attempted to coerce him
into making statements, violated his right to counsel, and disregarded his right
to medical attention during the post-arrest interrogation at the ICE facility. On
February 22, 2018, with the assistance of counsel, Medley filed written pleadings
in which he conceded his removability for overstaying his visa. A.R. 2060.
During a hearing on March 16, 2018, the IJ orally denied the motion to terminate.
A.R. 908-17.
Also on March 16, 2018, Medley alternatively filed an application for
cancellation of removal pursuant to § 240A(b) of the INA. 8 U.S.C. § 1229b(b)(1).
This provision authorizes the Attorney General to cancel the removal of a
noncitizen who meets certain statutory requirements, including continuous
presence in the country of no less than 10 years, a demonstration of good moral
character, no convictions under 8 U.S.C. §§ 1182(a)(2), 1227(a)(2), or 1227(a)(3),
and a showing that removal would cause unusual hardship for the applicant's
U.S. citizen spouse, parent, or child. 8 U.S.C. § 1229b(b)(1).
On August 17, 2018, Medley filed a second motion to terminate his
removal proceedings, pursuant to Pereira v. Sessions, 138 S. Ct. 2105 (2018). He
8
alleged that the immigration court lacked jurisdiction over the proceedings
because the initial NTA he received omitted details regarding the date, time, and
location of his hearings.
On September 13, 2018, the IJ denied both Medley's motions to
terminate in a written decision, and on June 25, 2019, the BIA affirmed. Medley
appealed to this Court on July 8, 2019. See Medley v. Barr, No. 19-2056, Dkt. 1 (2d
Cir. July 9, 2019).
On November 13, 2019, however, the BIA reopened proceedings on
Medley's application for cancellation of removal, after Medley filed a motion
based on a vacatur of his prior state convictions for marijuana possession. As a
consequence, on November 27, 2019, the parties entered into a stipulation
dismissing the petition for review in No. 19-2056 for lack of jurisdiction in light
of the reopening of the proceedings by the BIA. This Court so ordered the
stipulation. See S. App'x at 23-24; Medley v. Barr, No. 19-2056, Dkt. 40 (2d Cir.
Dec. 3, 2019). On March 4, 2020, after conducting three hearings, the IJ denied
Medley's cancellation application. The BIA affirmed on August 31, 2020.
Medley filed the instant petition for review on September 9, 2020.
Medley's petition for review included a motion to stay removal proceedings and
9
an appeal of the BIA's denials of both his motions to terminate proceedings and
his application for cancellation of removal. This Court granted the motion to
stay removal proceedings and dismissed the appeal of his application for
cancellation of removal for lack of jurisdiction. Medley v. Garland, No. 20-3079,
Dkt. 57 (2d Cir. July 13, 2021). The claim relating to the agency's denial of
Medley's motions to terminate remains before us.
DISCUSSION
We review the agency's factual findings for substantial evidence and
legal conclusions de novo. See Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008)
(per curiam); Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000). If the BIA's decision
adopts and affirms the decision of the immigration court, we review the two
decisions together. Ojo v. Garland, 25 F.4th 152, 159 (2d Cir. 2022) (citing Ruqiang
Yu v. Holder, 693 F.3d 294, 297 (2d Cir. 2012)).
Medley advances two arguments on appeal. First, he contends that
the immigration court lacked jurisdiction over the proceedings under Pereira and
Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), because the NTA omitted logistical
details regarding his hearings. Second, he argues that the officers' actions during
his arrest and interrogation amounted to regulatory and constitutional violations
10
that required termination of his removal proceedings under Rajah v. Mukasey, 544
F.3d 427 (2d Cir. 2008). We address each argument in turn.
I. Jurisdiction
Medley's argument that the agency lacked jurisdiction over his
removal proceedings because the NTA lacked the date, time, and location of his
removal hearings is foreclosed by our precedents in Chery v. Garland, 16 F.4th 980(2d Cir. 2021), and Banegas Gomez v. Barr, 922 F.3d 101 (2d Cir. 2019). In those
cases, we held that the Supreme Court's decisions in Pereira and Niz-Chavez on
the consequences of incomplete NTAs did not bear on an immigration court's
jurisdiction but rather applied narrowly to the stop-time rule, a provision of the
INA that applies only to an application for cancellation of removal. See Chery, 16
F.4th at 987 ("As with Pereira, Niz-Chavez focused only on the stop-time rule in 8
U.S.C. § 1229b(d)(1) and did not address the effect of a defective NTA on an IJ's
jurisdiction."); Banegas Gomez, 922 F.3d at 110 ("[W]e conclude that Pereira's self-
described disposition of this narrow question is not properly read to void
jurisdiction in cases in which an NTA omits a hearing time or place." (internal
quotation marks and citation omitted)). In his briefing in this Court, Medley
acknowledged that his jurisdictional argument was rejected in Chery and Banegas
11
Gomez but explained that he was relying on the pendency of a rehearing petition
in Chery to preserve the issue. That petition has now been denied. See Chery v.
Garland, No. 18-1036, Dkt. 202 (2d Cir. Mar. 30, 2022).
Accordingly, Medley's jurisdictional argument fails.
II. Pre-Hearing Violations
On the merits, Medley argues that his removal proceedings must be
terminated because the ICE officers violated agency regulations and his
fundamental rights during his arrest and subsequent interrogation. He asserts
that such violations require termination either with or without prejudice
pursuant to this Court's holding in Rajah. 544 F.3d at 447. For the reasons set
forth below, we are not persuaded.
A. Applicable Law
To prove that a noncitizen is subject to removal for overstaying his
visa, the government must "only show that the alien was admitted as a
nonimmigrant for a temporary period, that the period has elapsed, and that the
nonimmigrant has not departed." Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir.
2006) (per curiam) (internal quotation marks and ellipses omitted). The
government bears the burden of establishing that the noncitizen is subject to
12
removal by clear and convincing evidence. See id.; see also Woodby v. INS, 385 U.S.
276, 285-86 (1966). We uphold the BIA's removability determinations if its
findings are supported by substantial evidence. Mei Chai Ye v. U.S. Dep't of Just.,
489 F.3d 517, 523 (2d Cir. 2007); Francis v. Gonzales, 442 F.3d 131, 137-38 (2d Cir.
2006).
If a noncitizen concedes removability and does not allege that the
concession was illegally obtained, then the "voluntary concessions of
removability during [the] removal proceedings are admissible as independent
evidence, notwithstanding the fact that [the] proceedings resulted from unlawful
arrests." Vanegas-Ramirez v. Holder, 768 F.3d 226, 236 (2d Cir. 2014) (citing Katris
v. INS, 562 F.2d 886, 867-69 (2d Cir. 1977) (per curiam); Avila-Gallegos v. INS, 525
F.3d 666, 666-67 (2d Cir. 1975); La Franca v. INS, 413 F.2d 686, 688-89 (2d Cir.
1969)). Similarly, where a petitioner opposes deportation proceedings based on
an allegedly illegal arrest but does not contest any of the evidence offered against
him, "the mere fact of an illegal arrest has no bearing on a subsequent
deportation proceeding." INS v. Lopez-Mendoza, 468 U.S. 1032, 1040 (1984)
(alteration adopted) (internal quotation marks and citation omitted). Despite the
nature of the arrest, "the removal of an individual could still be supported by
13
otherwise admissible 'evidence not derived directly from,' but rather 'gathered
independently of, or sufficiently attenuated from,' the arrest." Vanegas-Ramirez, 768
F.3d at 234 (quoting Lopez-Mendoza, 468 U.S. at 1043).
In INS v. Lopez-Mendoza, the Supreme Court held that the
exclusionary rule, which bars the admission of certain evidence in criminal
proceedings, did not apply in civil removal proceedings to alleged Fourth
Amendment violations. 468 U.S. at 1034, 1050. Yet the Court in Lopez-Mendoza
left open whether the exclusionary rule might apply in cases of "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. The Court also considered the challenge of a petitioner
who moved to terminate his removal proceedings based on an allegedly illegal
arrest but who had "entered no objection to the evidence offered against him."
Id. at 1040. Instead, the petitioner only contested being summoned to a
deportation proceeding following his purportedly illegal arrest. Id. The Court
observed that "[t]he body or identity of a defendant or respondent in a criminal
or civil proceeding is never itself suppressible as a fruit of an unlawful arrest,
even if it is conceded that an unlawful arrest, search, or interrogation occurred."
14
Id. at 1039-40 (internal quotation marks omitted) (citing Gerstein v. Pugh, 420 U.S.
103, 119 (1975); Frisbie v. Collins, 342 U.S. 519, 522 (1952); United States ex rel.
Bilokumsky v. Tod, 263 U.S. 149, 158 (1923)). It therefore upheld the agency's
denial of the petitioner's motions to terminate, based upon the agency's
determination that because the evidence of removability was not contested, "the
legality of the arrest was not relevant to the deportation proceeding." Id. at 1035.
In so holding, the Court stressed that the purpose of a removal proceeding "is not
to punish past transgressions but rather to put an end to a continuing violation of
the immigration laws." Id. at 1039 ("[A] deportation hearing is intended to
provide a streamlined determination of eligibility to remain in this country,
nothing more.").
Lopez-Mendoza discussed the suppression of evidence in a removal
proceeding, rather than a request to terminate removal proceedings because of
regulatory or constitutional violations. We have considered the latter issue in
other cases. In Rajah v. Mukasey, we considered motions to terminate removal
proceedings for "significant regulatory violations" that occurred during the arrest
or interrogation phases of removal proceedings. 544 F.3d at 446. We identified
three "possible remedies" for such violations:
15
(i) invalidation of the deportation orders with prejudice; (ii)
suppression of all evidence obtained during the registration and
interrogation phases; and (iii) terminating the deportation
proceedings without prejudice to the starting of new deportation
proceedings.
Id. The second remedy -- suppression of evidence -- is not at issue in this case
because Medley does not seek the suppression of any evidence obtained during
his arrest or interrogation. Nor does he contest that he is removable. Only the
first and third remedies -- termination of proceedings with or without prejudice
to new deportation proceedings -- are at issue.
While the parties disagree as to some aspects of Rajah, we need not
resolve the differences. 2 Rajah assumed, "without deciding," that pre-hearing
2 The parties differ as to whether prejudice to the outcome of the removal
proceedings is required to terminate them. Rajah held that "pre-hearing regulatory
violations are not grounds for termination, absent prejudice that may have affected the
outcome of the proceeding, conscience-shocking conduct, or a deprivation of
fundamental rights." Rajah, 544 F.3d at 447. Respondent acknowledges that this list is
"disjunctive," but contends that the court "later clarifies that prejudice and
egregiousness are conjunctive requirements for termination." Resp. Br. at 30. Medley
argues that this listing is disjunctive and that termination is required if a pre-hearing
violation involves prejudice to a proceeding or egregiousness or a deprivation of a
fundamental right. See Pet. Reply Br. at 6. We have previously suggested -- albeit in a
summary order -- that this list is disjunctive. See Alnahham v. Holder, 371 F. App'x 191,
195 (2d Cir. 2010) (summary order) (holding that termination of proceedings was not
warranted because the alleged improprieties "d[id] not rise to the level of being
prejudicial, conscience-shocking, or a deprivation of fundamental rights."). Medley's
interpretation also finds support in the Ninth Circuit's decision in Sanchez v. Sessions,
904 F.3d 643 (9th Cir. 2018). There, although evidence of the noncitizen's removability
existed independent of the allegedly illegal stop, the court found that there was ample
16
violations that were "so egregious as to shock the conscience would call for
invalidation of the deportation orders with prejudice to the renewal of
deportation proceedings." Id. Rajah held that pre-hearing violations of a "less
culpable" or non-egregious nature could be a basis for termination without
prejudice only if the petitioner could show "prejudice that may have affected the
outcome of the proceeding." Id. at 446-47; see id. at 447 ("In the case of harmless,
nonegregious, pre-hearing violations, termination would provide no benefit
other than a windfall delay to the deportable alien." (emphasis added)).
The four petitioners in Rajah challenged their deportation
proceedings based on, inter alia, alleged violations of agency regulations that
occurred before their hearings. 544 F.3d at 434. 3 Pursuant to a national security
program instituted after the September 11 attacks, the petitioners were required
evidence that the stop was based on the petitioner's race, a "grotesque" and "patently
unlawful[]" basis for reasonable suspicion. Id. at 656. The court concluded that this
constituted an egregious violation of the agency regulation that such searches be based
on reasonable suspicion and held that the petitioner could be entitled to termination of
his removal proceedings. Id. at 653, 656. Here, as discussed below, Medley has not
shown either egregiousness or prejudice to the outcome of the proceedings.
3 The Rajah petitioners also alleged that the registration program lacked statutory
authorization, was invalidly promulgated, and violated their equal protection rights.
544 F.3d at 434-39. They also sought to suppress evidence of their removability that was
gathered pursuant to the program, arguing that the evidence was the product of Fourth
and Fifth Amendment violations. Id. at 439-43. These arguments were all rejected. Id.
at 435-43.
17
to register, provide fingerprints, and submit to additional questioning by then-
INS officials. Id. at 433-34. When the registration process revealed that the four
petitioners were in the country illegally, all of them were placed in removal
proceedings. Id. Though it was "undisputed that [the petitioners were]
deportable," they alleged that the officials had violated agency regulations while
registering, interrogating, and arresting them. Id. at 434. The allegations
included the violation of the right to counsel, warrantless arrests, the failure of
the arresting officer to identify himself and state reasons for arrest, post-arrest
questioning conducted by an arresting officer, and coercion. Id. at 443-46. The
petitioners contended that the violations so infected their proceedings that they
required, inter alia, suppression of evidence gathered during registration or
termination of their removal proceedings without prejudice. Id. at 434.
Noting the lack of sufficient factual findings to enable our conclusive
review of each claim, with the exception of petitioners' claims regarding access to
counsel, which we determined were not violations as a matter of law, we
"assume[d] for purposes of argument that [petitioners'] rights under the
regulations were violated." Id. at 443. We nevertheless held that the violations
were not grounds for termination with prejudice because they were not
18
egregious. Id. at 446. In assessing whether the violations might be grounds for
termination without prejudice, we reasoned that, "[u]nlike a violation occurring
during a hearing, the alien's second deportation hearing would be no more fair
than, or even different from, the first." Id. at 447. Termination in these
circumstances, we concluded, would also provide little deterrent effect and a
great enforcement burden on the agency. See id. ("[U]sing termination as a
remedy for pre-hearing violations promises a substantial drain on agency
resources with little gain in immigrants' significant rights under the
regulations.").
Rajah assumed without deciding that an egregious pre-hearing
regulatory violation could lead to termination with prejudice. To determine
whether conduct is egregious or conscience-shocking, we look to the Supreme
Court's Fourth Amendment jurisprudence as well as our own precedents. These
precedents largely arise in the suppression context, but they nevertheless can
provide an instructive framework for evaluating egregious conduct.
"[T]here is no one-size-fits-all approach" to assessing egregiousness.
Cotzojay v. Holder, 725 F.3d 172, 181 (2d Cir. 2013) (quoting Oliva-Ramos v. Att'y
Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012)). To shock the conscience, the
19
challenged conduct "must not only be wrong; it must be extremely so, 'truly
brutal and offensive to human dignity.'" Mara v. Rilling, 921 F.3d 48, 78-79 (2d
Cir. 2019) (quoting Lombardi v. Whitman, 485 F.3d 73, 81 (2d Cir. 2007)).
In Lopez-Mendoza, the Supreme Court suggested the exclusionary
rule could apply in removal proceedings in the case of pre-hearing, egregious
violations of fundamental liberties. 468 U.S. at 1050-51. To support this
proposition, the Court cited Rochin v. California, 342 U.S. 165 (1952), where the
Court held that the defendant's Fourth Amendment rights had been violated by
conscience-shocking conduct by the police. Upon entering Rochin's bedroom
during a warrantless raid, police officers observed Rochin swallowing two
capsules. Id. at 166; People v. Rochin, 225 P.2d 1, 1 (Cal. Ct. App. 1950). The
officers responded by "jump[ing] on him" in an "attempt[] to extract the
capsules." Rochin, 342 U.S. at 166. When that did not work, the officers took
Rochin to the hospital and had a doctor forcibly pump his stomach to recover the
capsules, which were revealed to contain morphine. Id. The capsules and
recovered morphine were the chief evidence used against him at trial. Id. The
Court held that the officers' conduct shocked the conscience because it involved
"[i]llegally breaking into the privacy of the petitioner, the struggle to open his
20
mouth and remove what was there, [and] the forcible extraction of his stomach's
contents." Id. at 172. Rather than holding that this conduct set the bar for
egregious, conscience-shocking conduct, however, we have held that the
Supreme Court's citation in Lopez-Mendoza to Rochin does not "indicat[e] that the
Court requires equally flagrant violations before it is willing to label them
'egregious.'" Cotzojay, 725 F.3d at 181.
As for our own precedents, we have assessed the egregiousness of
alleged pre-hearing violations on several occasions. See, e.g., Cotzojay, 725 F.3d
172; Zuniga-Perez v. Sessions, 897 F.3d 114 (2d Cir. 2018); Almeida-Amaral v.
Gonzales, 461 F.3d 231 (2d Cir. 2006). Like Lopez-Mendoza, these cases considered
a petitioner's motion to suppress evidence gathered pursuant to a purportedly
illegal arrest. In Almeida-Amaral, we identified "two principles that . . . bear on
whether [a] petitioner suffered an egregious violation of his constitutional
rights." 461 F.3d at 235. First, we consider the characteristics, severity, and
validity of the conduct. See id. Second, even if the conduct 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. As for the
standard itself, the "test for egregiousness is more demanding than the test for
21
overcoming qualified immunity." Maldonado v. Holder, 763 F.3d 155, 159 (2d Cir.
2014) (citing Cotzojay, 725 F.3d at 183 n.10). Egregious abuse "entails a shock to
the conscience [] and is rarely satisfied." Id.Several years after Rajah, we again considered the impact of pre-
hearing violations on termination of removal proceedings in Maldonado v. Holder,
763 F.3d at 163-64. The petitioners in Maldonado moved to terminate their
removal proceedings because evidence of their removability was collected
during a purportedly race-based stop. Id. at 158-62. They also alleged that they
were deprived of counsel during processing, in violation of agency regulations.
Id. at 163-64. Applying the Rajah framework, we held that the challenged
conduct was not egregious because the stop had been targeted, without
consideration of race, towards anybody participating in day labor, and because
none of the petitioners claimed they had invoked their right to counsel and then
had it denied. Id. at 161, 163-64. Accordingly, we denied the petitions for
review. Id. at 167.
B. Application
As the IJ did below, we construe the facts in Medley's favor and
assume that all of his allegations regarding the arrest and interrogation are true.
22
See S. App'x at 35 ("[T]he court takes every allegation that the respondent makes
in his affidavit to be completely true and disregards the Form I-213."); see Rajah,
544 F.3d at 443 ("[W]e assume for purposes of argument that [petitioners'] rights
under the regulations were violated.").
As noted above, Medley does not challenge any evidence that was
collected during his arrest and interrogation, nor does he contest that he is
removable. A.R. 2060. Therefore, the second remedy for addressing pre-hearing
violations -- namely, the suppression of evidence during the removal proceeding
-- does not apply. Rajah, 544 F.3d at 446. We identify the violative conduct
alleged in this case, and assuming his allegations to be true, we then consider
whether the allegations would entitle Medley to the termination of his removal
proceedings, either with or without prejudice.
1. The Violative Conduct
Several transgressions are alleged to have transpired. Medley
contends that the ICE agents violated agency regulations during the arrest by
using unnecessary force in violation of 8 C.F.R. §§ 287.8(a)(1)(ii)-(iii). See Pet. Br.
at 2, 17-28; Pet. Reply Br. at 16-18. At the ICE facility, the regulatory violations
continued when the ICE officers refused to call Medley's attorney. The officers
23
also deprived Medley of food, water, and medical care as a means of coercing
him to make statements or sign documents, which he refused to do. Medley
argues that this conduct violated agency regulations protecting his right to
counsel, 8 C.F.R. § 292.5(b), and his right to remain free from coercion, id.§ 287.8(c)(2)(vii). See Pet. Br. at 2, 30-33. 4
Medley also argues that the officers' conduct violated his
fundamental rights. See Pet. Br. at 28-29. He contends that the agency
regulations protecting the right to remain free from coercion and the right to
counsel were promulgated to protect petitioners' Fifth Amendment due process
rights. Id. at 29.
We turn to whether the alleged violations warrant termination, with
or without prejudice.
4 Medley alleged additional regulatory violations before the immigration court,
including the failure of the ICE officers to obtain an arrest warrant in violation of
8 C.F.R. § 287.8(c)(2)(ii); the failure of officers to identify themselves during the arrest in
violation of 8 C.F.R. § 287.8(c)(2)(iii); the officers' choice to leave Medley unattended in
the vehicle in violation of 8 C.F.R. § 287.8(d)(1); and examination by an arresting officer
in violation of 8 C.F.R. § 287.3(a). See S. App'x at 35. Because these claims were not
raised on appeal to the BIA, we deem them waived. See Lin Zhong v. U.S. Dep't of Just.,
480 F.3d 104, 123 (2d Cir. 2007); Cervantes-Ascencio v. U.S. I.N.S., 326 F.3d 83, 87 (2d Cir.
2003) (per curiam). Moreover, even assuming they were not waived, for the reasons
discussed below, they do not constitute a basis for termination -- with or without
prejudice.
24
2. Termination With Prejudice
As in Rajah, we assume without deciding that an egregious pre-
hearing violation could warrant termination with prejudice of Medley's removal
proceedings. Because we do not find that the challenged conduct was "so
egregious as to shock the conscience," Medley is not entitled to such a remedy,
on the assumption that it exists. Rajah, 544 F.3d at 446. The alleged improprieties
here are, for the most part, similar to the challenged conduct in Rajah, where we
held that the purported regulatory violations were not egregious and did not
merit termination with prejudice. Id. at 443. Though Medley, unlike the Rajah
petitioners, also alleges that the officers' physical conduct warrants termination,
we cannot say that the challenged conduct is egregious or shocks the conscience.
We have no allegation here that Medley's arrest and interrogation
were based on impermissible considerations such as race, which could give rise
to an egregious violation. See, e.g., Almeida-Amaral, 461 F.3d at 235. Instead, we
assess the "characteristics and severity of the offending conduct." Id. Here, the
purported violations largely resemble those in Rajah and Alnahham, where we
held that termination with prejudice was not warranted because the violations
neither shocked the conscience nor violated fundamental rights. See Rajah, 544
25
F.3d at 446; Alnahham, 371 F. App'x at 195-96. In Rajah, we assumed that the
following violations occurred: (1) at least some of the petitioners had been
arrested without a warrant, in violation of 8 C.F.R. § 287.8(c)(2)(ii), (2) at least
some of the petitioners were not notified of their arrest until after substantial
questioning had occurred, in violation of 8 C.F.R. § 287.8(c)(2)(iii), (3) the
petitioners were examined by arresting officers, in violation of 8 C.F.R. § 287.3(a),
and (4) a seven-hour interrogation of a petitioner, interrupted by two intervening
stints where he was placed in a cell, amounted to coercion, in violation of 8
C.F.R. § 287.8(c)(2)(vii). Rajah, 544 F.3d at 443-46. 5 The petitioner in Alnahham
alleged the same four violations. Alnahham, 371 F. App'x at 195. He also alleged
that he was held at 26 Federal Plaza for more than 24 hours and that that ICE
interfered with his right to counsel. Id. at 195. The court, however, found that
his right to counsel was not violated, as Alnahham had not clearly invoked his
right. Id.
5 The petitioners also alleged that their attorneys' inability to access the
interrogation room violated their right to counsel. Rajah, 544 F.3d at 444-45. Because
we noted that the petitioners had not brought their attorneys to these scheduled
interviews, we rejected the contention that such actions constituted a regulatory
violation. Id.26
In Rajah, the Court rejected the claim that ICE employed coercive
tactics because the interrogations "did not involve the kind of circumstances that
prior courts have found coercive, such as marathon questioning or
misinformation as to their rights." Id. at 445. As for the fourth petitioner who
was questioned for seven hours, we noted that the IJ found the duration was
coercive, but we declined to find that the interrogation was egregious conduct
such that it provided a basis for termination, explaining that "the
interrogation, . . . while undoubtedly unpleasant, did not rise beyond the level of
being long and tiresome." Id. at 446.
The tactics used by ICE during Medley's interrogation similarly do
not amount to unlawful coercion. Although Medley contends that the officers
attempted to coerce him to sign certain documents by threatening to continue
withholding food, water, and medical treatment and refusing to call his attorney,
he was not subject to "marathon questioning" and was not misinformed about his
rights. Rajah, 544 F.3d at 445. 6 Instead, the ICE officers initially provided Medley
6 Medley does not specify how long the interrogation lasted. See S. App'x at 41-42.
Per the Form I-213, Medley was arrested on December 20, 2017, at 11:45am, arrived to
the ICE facility at 11:55am, made a telephone call to his wife at 1:15pm, and was
provided with a meal at 1:30pm. A.R. 1867-68. If this timeline is correct, it supports
Respondent's contention that the interrogation lasted approximately one hour. See
Resp. Br. at 40.
27
with a list of pro bono immigration attorneys and stopped questioning Medley as
soon as his lawyer sent a message invoking his rights, although the officers,
according to Medley's allegations, had previously ignored Medley's own
invocation of his rights. See S. App'x at 41-42. Medley neither gave involuntary
statements nor contests any evidence that was gathered during his interrogation,
and he concedes that he received medical attention soon after the interrogation
ended.
Nor does the purportedly coercive conduct violate Medley's due
process rights under the Fifth Amendment. Due process protections "are
available only against egregious conduct which . . . can fairly be viewed as so
brutal and offensive to human dignity as to shock the conscience." Smith ex rel.
Smith v. Half Hollow Hills Cent. School Dist., 298 F.3d 168, 173 (2d Cir. 2002) (per
curiam) (internal quotation marks and citation omitted). The officers' tactics, as
alleged by Medley, cannot be characterized as so offensive or brutal to amount to
egregiousness, given the comparatively short length of the interrogation, the
brevity of the threats of withholding food, water, and medical treatment, and the
low level of his need for medical treatment. While Medley does allege he was
bleeding as he was being questioned, the only medical treatment that he required
28
after the interrogation was a re-dressing of his wound, which indicates that the
threat to withhold medical treatment did not have significant coercive impact.
Medley's affidavit does not specify the seriousness of his bleeding, and we will
not infer gravity that the petitioner has failed to allege. Based on all of the above,
we conclude that the abusive conduct alleged by Medley was not so egregious as
to justify termination.
Medley also asserts that the ICE officials violated 8 C.F.R. § 292.5(b),
which provides the right to counsel during "examination[s]." While Medley is
correct that an officer's ignoring a noncitizen's request for an attorney is a
significant violation of rights, that violation (if it occurred) had no adverse
consequences for him. It is not as if the officers secured evidence to be used
against him by failing to honor his right to counsel. Despite any violation that
occurred, Medley acknowledged that he held fast, refusing to answer questions
or sign documents. Even if the violation alleged was sufficiently egregious to
justify suppression of evidence obtained through the violation (of which there
was none), it would not justify termination of the proceeding seeking his
removal. See Lopez-Mendoza, 468 U.S. at 1050-51 & n.5 (explaining that
suppression of evidence may be available as a remedy for "egregious violations"
29
of the Fourth Amendment, citing Matter of Garcia, 17 I. & N. Dec. 319, 321 (BIA
1980), in which evidence of alienage obtained after petitioner's right to counsel
was invoked was suppressed).
In Rajah, we assumed without deciding that egregious pre-hearing
regulatory violations would be grounds for termination, but we concluded that
none of the alleged violations were egregious, in part because they were
"harmless." Rajah, 544 F.3d at 446. Here, as in Rajah, we need not concern
ourselves with whether and in what circumstances egregious conduct will justify
termination of the proceedings because the denial of counsel alleged by Medley
was brief and harmless.
We next address Medley's contention that the circumstances of his
arrest violated agency regulations prohibiting the use of unnecessary non-deadly
force under 8 C.F.R. §§ 287.8(a)(1)(ii)-(iii). We assume without deciding that the
use of excessive force, if egregious, can be the basis for terminating proceedings
with prejudice. It may well be that the arresting officers treated Medley more
roughly than was appropriate. While arresting him, according to his allegations,
the officers pushed Medley against a shelving unit, threw away the medication
he was given after his surgery, and threw his "Know Your Rights" card to the
30
ground. See Pet. Br. at 7-9. The officers grabbed his bandaged hand while
handcuffing him and caused it to bleed. See id. at 7. They also ignored his
entreaties to be taken to the hospital and later disregarded his requests for food
and water at the ICE facility. See id.
Despite such roughness, we are unable to say that the ICE officials'
conduct so deviates from the routine rough and tumble of an arrest --
particularly of someone with an extensive history of arrest and who has been
charged with resisting arrest on six prior occasions -- such that it warrants
termination with prejudice. See, e.g., Landy v. Irizarry, 884 F. Supp. 788, 797
(S.D.N.Y. 1995) ("[T]he right to make an arrest necessarily allows the use of some
degree of force to effect it . . . ."); Pooler v. Hempstead Police Dep't., 897 F. Supp. 2d
12, 25 (E.D.N.Y. 2012) ("Physical force is often necessary when effectuating
arrests . . . and, thus, not every push or shove is unconstitutionally
excessive . . . ." (internal quotation marks and citation omitted)); Rodriguez v.
Village of Ossining, 918 F. Supp. 2d 230, 238 (S.D.N.Y. 2013) (observing that
arresting officers are "authorized to use some degree of force or the threat thereof
to effect [an] arrest" (internal quotation marks and citation omitted)); see also
Brown v. City of New York, 798 F.3d 94, 103 (2d Cir. 2015) (noting that "[p]olice
31
officers must be entitled to make a reasonable selection among alternative
techniques for making an arrest"). The Form I-213 report, which recorded the
details of the arrest, indicated that Medley had been arrested seven times in three
years for assault, disorderly conduct, and other crimes. A.R. 1865-66. It also
noted that ICE had issued five detainers for Medley prior to his arrest and that
they had not been honored by New York authorities. Id. at 1867. Therefore, a
degree of roughness in arresting Medley was not unreasonable given the officers'
knowledge of this criminal history. See 8 C.F.R. § 287.8(a)(1)(iii) (providing that
immigration officers "shall escalate to a higher level of non-deadly force [during
an arrest] only when such higher level of force is warranted by the . . . apparent
capabilities of the suspect"); Graham v. Connor, 490 U.S. 386, 396 (1989) (holding
that the reasonableness of force deployed during an arrest is judged using the
"facts and circumstances of each particular case" from the perspective of "a
reasonable officer on the scene"); Sullivan v. Gagnier, 225 F.3d 161, 166 (2d Cir.
2000) (per curiam) ("The force used by the officer must be reasonably related to
the nature of the resistance and the force . . . reasonably perceived to be
threatened[] against the officer.").
32
Minor injuries in the process of an arrest do not necessarily justify an
excessive force claim, let alone shock the conscience. See, e.g., Lennon v. Miller, 66
F.3d 416, 426 (2d Cir. 1995) (rejecting an excessive force claim where the police
forcibly removed the plaintiff from a car, injuring her wrist in the process, noting
that it was necessary to do so to execute the arrest). We have "long rejected the
principle that handcuffing is 'per se reasonable'" and have previously held that
excessive force during handcuffing can, in some instances, give rise to a
fundamental rights violation. Cugini v. City of New York, 941 F.3d 604, 615 (2d
Cir. 2019) (quoting Soares v. State of Conn., 8 F.3d 917, 921 (2d Cir. 1993)). In this
instance, however, although the arresting officers may have deployed a degree of
force that was greater than appropriate, we have no basis to conclude that any
abuse was egregious or conscience-shocking.
Finally, Medley argues that a totality of the circumstances analysis
requires a finding that the challenged conduct shocks the conscience. See Pet. Br.
at 25-26. In support of this assertion, Medley points to Rochin, the case involving
forcible stomach pumping, and contends that the challenged conduct during his
arrest and interrogation is "similarly severe[,] . . . if not more egregious." Id. at
26. We are unpersuaded. Though we have held that Rochin does not set the bar
33
for egregious conduct, see Cotzojay, 725 F.3d at 181, the ICE officers' use of limited
force and interrogation tactics does not compare with the conscience-shocking
and intrusive conduct in Rochin. The ICE officers arrested Medley pursuant to a
DHS arrest warrant and the amount of force that they allegedly used, even if
more than appropriate, was not shocking or egregious. At the ICE facility, the
officers employed interrogation tactics that do not amount to unlawful coercion.
If, as Medley alleges, the officers threw away Medley's pain medication
following a minor surgery, this may offend notions of decency but does not
amount to an "unnecessary and wanton infliction of pain" or a "deliberate
indifference to serious medical needs" that is "repugnant to the conscience of
mankind." Estelle v. Gamble, 429 U.S. 97, 103-04, 106 (1976) (internal quotation
marks and citations omitted). The officers' conduct here was not so extreme,
brutal, and "offensive to human dignity" such that it shocks the conscience.
Mara, 921 F.3d at 79. Moreover, Medley does not contend that the officers lacked
sufficient legal grounds for the arrest or that they did so pursuant to
impermissible considerations. See Pet. Br. at 21.
Therefore, we conclude that termination of Medley's removal
proceedings with prejudice is not warranted because the challenged conduct was
34
not conscience-shocking or egregious, which is, by definition, "extreme, rare, and
obvious." Maldonado, 763 F.3d at 165.
3. Termination Without Prejudice
We have concluded that the violations were not egregious or
conscience-shocking. There still may be a basis for termination, without
prejudice to renewal, but only if the pre-hearing violations resulted in prejudice
to the outcome of the proceedings. Rajah, 544 F.3d at 447.
Here, however, given the absence of prejudice to the outcome of the
proceedings, we hold that termination of Medley's removal proceedings without
prejudice to renewal is not warranted. There was substantial evidence
establishing Medley's removability independent of his arrest. See S. App'x at 26.
DHS presented to the IJ copies of Medley's passport, visa, and database entries
that confirmed his date of entry. All three records make clear that Medley was
authorized to remain in the country until December 6, 2006, and that he stayed in
the country well beyond that date. The arrest warrant issued by DHS was based
on "biometric confirmation of the subject's identity and a records check of federal
databases that affirmatively indicate, by themselves or in addition to other
reliable information, that the subject either lacks immigration status or
35
notwithstanding such status is removable under U.S. immigration law." A.R. at
1862. Medley's passport, visa, and database entries confirming his nationality
and immigration status constitute "clear, unequivocal, and convincing evidence"
of his visa overstay. Zerrei, 471 F.3d at 346-47 (finding that a noncitizen's
passport, independent of any evidence from INS databases, was convincing
evidence of alienage and overstay). The pre-hearing violations alleged here do
not change the fact that Medley is removable.
Moreover, Medley does not -- and could not -- contend that the
challenged conduct prejudiced the outcome of proceedings or that evidence of
his status collected pursuant to his arrest should be suppressed. In counseled
pleadings during his removal proceedings, he conceded his removability. A.R. at
2060. The Supreme Court has suggested that regardless of how an arrest
transpires, "the removal of an individual could still be supported by otherwise
admissible 'evidence not derived directly from,' but rather 'gathered independently
of, or sufficiently attenuated from,' the arrest." Vanegas-Ramirez, 768 F.3d at 234(quoting Lopez Mendoza, 468 U.S. at 1043). Here, Medley's concession occurred
more than three months after the arrest, which is "sufficiently attenuated from"
the arrest. Id. (emphasis omitted). Both the concession and DHS's evidence
36
independently confirm Medley's status as a removable noncitizen. Thus, had
Medley made an evidentiary challenge, he would have had no grounds on which
to challenge the violations on the basis that they were prejudicial.
CONCLUSION
Under Rajah, termination may be warranted for pre-hearing
regulatory violations in cases involving "prejudice that may have affected the
outcome of the proceeding, conscience-shocking conduct, or a deprivation of
fundamental rights." 544 F.3d at 447. As Medley has failed to show that he
satisfies any of the three requirements for termination, he is not entitled to
termination of his removal proceedings, with or without prejudice to renewal.
Because the immigration court did not abuse its discretion in denying the
motions to terminate, the petition for review is DENIED.
37