Oliva-Ramos v. Attorney General of the United States , 694 F.3d 259 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-3849
_____________
ERICK RODOLFO OLIVA-RAMOS,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
_____________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Immigration Judge: The Honorable Linda S. Wendtland
(No. A088-231-019)
_____________
Argued
November 16, 2011
Before: McKEE, Chief Judge, RENDELL and AMBRO,
Circuit Judges
(Opinion filed: September 13, 2012)
Nancy Morawetz, Esquire
Alina Das, Esquire
Nikki R. Reisch, Law Student (argued)
Stephen Kang, Law Student
Ruben Loyo, Law Student
Nancy Steffan, Law Student
Washington Square Legal Services, Inc.
245 Sullivan St., 5th Floor
New York, NY 10012
Counsel for Petitioner
Allen W. Hausman, Esquire (Argued)
Andrew J. Oliveira, Esq.
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
Timothy E. Hoeffner, Esq.
DLA Piper
1650 Market Street
One Liberty Place, Suite 4900
Philadelphia, PA 19103
AMERICAN CIVIL LIBERTIES UNION
Amicus Appellant
__________________
OPINION OF THE COURT
__________________
McKEE, Chief Judge.
Erick Oliva-Ramos petitions for review of an order of
the Board of Immigration Appeals affirming an Immigration
Judge‘s order removing him to Guatemala. He also seeks
review of the BIA‘s denial of his motion to supplement the
record and to reopen his removal proceeding before an
Immigration Judge.1 We must decide whether the BIA erred
in refusing to apply the exclusionary rule in a removal
proceeding under the circumstances in this case. A related
question that we must address is whether the BIA abused its
1
We consolidated the petition for review of the BIA‘s denial
of his motion to reopen with our review of the underlying
removal order pursuant to 8 U.S.C. § 1252(b)(6).
2
discretion in not reopening this case to allow Oliva-Ramos to
supplement the administrative record with evidence of
widespread and/or egregious conduct by Immigration and
Customs Enforcement (―ICE‖) officials. Finally, we must
determine if alleged violations of regulations entitle Oliva-
Ramos to relief. For the reasons explained below, we will
grant the petitions, vacate the BIA‘s order of removal, and
remand to the BIA for further proceedings consistent with this
opinion.2
I. Factual Background
At 4:30 a.m. on March 26, 2007, a team of armed,
uniformed ICE officers repeatedly rang the entrance ―buzzer‖
to the Englewood, New Jersey apartment where Erick Oliva-
Ramos lived. Oliva-Ramos shared the home with his three
sisters (Clara, Wendy, and Maria), his nephew (Wagner), and
his brother-in-law (Marvin). Two visiting family friends
were also in the apartment. Of those present, only Clara
could prove that she was legally in the United States.
According to the affidavit that was introduced at
Oliva-Ramos‘s removal hearing, Clara heard the incessant
buzzing, but could not tell who was ringing the bell because
the intercom was broken.3 Since it was 4:30 a.m., she
2
The BIA granted Oliva-Ramos‘s request for voluntary
departure but that order automatically terminated upon the
filing of the motion to reopen and the petition for review, and
the alternate order of removal immediately took effect.
Sandie v. Att’y Gen., 562 F.3d 246, 255 n.5 (3d Cir. 2009)
(citing 8 C.F.R. § 1240.26(f)).
3
The IJ noted that although Oliva-Ramos submitted affidavits
from Clara, Marvin, and Wagner, those family members were
―not present in court and unavailable for cross-examination
by the Department of Homeland Security.‖ The IJ ―weighed
[these] document[s] accordingly.‖ The IJ considered the
affidavit of Clara Oliva to the extent that it corroborated the
testimony of the Government‘s witness on consent to enter
the home, but did not explicitly state additional credibility
determinations as to the weight of affidavits from family
members not present at the suppression hearing.
3
remotely opened the building‘s entry door because she feared
that the repeated buzzing signaled an emergency. While in
her pajamas, she stepped onto the landing outside her
apartment as she held her apartment door open with her foot
and saw five or six ICE officers coming up the stairs.
As the officers approached the front door of the
apartment, they waived an administrative warrant for Oliva-
Ramos‘s other sister, Maria. Clara later stated that she
realized that the people coming up the stairs were ICE agents
when they said they had an order to arrest Maria. The
officers had no information about the identity or legal status
of any of the other occupants of the apartment. Before
entering the apartment, the officers asked Clara for her name
and immigration status, and she informed them that she was a
legal permanent resident. The officers then asked if Clara
lived in the apartment and asked permission to enter. In her
affidavit, Clara explained that she did not deny entry even
though Maria was not there because she (Clara) believed that
she could not refuse and that the order to arrest Maria gave
the officers the right to enter even in Maria‘s absence.
At some point during the exchange with the officers,
Clara lost her foothold on the open door and it slammed shut,
leaving her outside the apartment. Her son let her in,
however, after she banged on the door. As she entered, the
officers lined up behind her and followed her inside. Once
inside, they began waking the occupants and ordering them
into the living room while another agent blocked the door so
that no one could leave.
According to Oliva-Ramos‘s affidavit and testimony
before the IJ, Clara knocked on his bedroom door and told
him that immigration officers were there. Oliva-Ramos
shared his bedroom with his sister, Wendy, and her husband.
Oliva-Ramos was sleeping, but Wendy opened the bedroom
door.4
4
Since it was before dawn, the bedroom lights were turned
off.
4
An armed officer in a green ICE uniform shone a
flashlight into the room and ordered everyone to move to the
living room. Oliva-Ramos was in his pajamas but was
permitted to get dressed under the supervision of an ICE
officer. He testified that ―there was no way [he] could have
left‖ the presence of the officers.
The officer then directed Oliva-Ramos to the living
room and told him to sit down. In addition, Oliva-Ramos
testified that the officer did not identify himself, show him a
badge or identification, or tell him why he (the officer) was in
the apartment. During the removal hearing, Oliva-Ramos
also testified that he was not told that he could refuse to go
with the officer.5
After everyone was escorted to the living room, five
or six armed ICE officers began questioning everyone about
Maria. During that questioning, the officers blocked each
entrance to the living room. Oliva-Ramos testified that he
heard an officer tell Clara to sit down when she tried to stand.
He also said he heard the officer tell her that if she did not sit,
she could be arrested. The officers asked about the identities
and nationalities of all of the apartment occupants. Clara‘s
son, Wagner, initially refused to answer questions, but
relented when the officers ordered him to speak and told him
he could not refuse to answer them.
The officers did not ask Oliva-Ramos any questions in
the living room but ordered him back to his bedroom to
retrieve his identification documents. An officer followed
Oliva-Ramos to the bedroom as he retrieved his identification
and escorted him back to the living room. Oliva-Ramos
stated that he went to retrieve his documents because he
thought that, if he did not go, he could be arrested because he
did not have papers. He also thought that if he showed his
Guatemalan identification to the officer, nothing would
happen. The documents he retrieved revealed that he is a
citizen of Guatemala; he was unable to produce any
5
Oliva-Ramos testified that he was nervous and that an
officer followed him from the bedroom to the living room.
5
documentation demonstrating that he was lawfully present in
the United States.
The encounter lasted approximately forty-five minutes.
During that time, Oliva-Ramos and his family were prevented
from eating, drinking, or speaking out of turn. According to
Clara‘s affidavit, her sister (Wendy) began menstruating
while the family was in the living room, but Clara was not
allowed to get any feminine hygiene products for her.
According to Oliva-Ramos‘s affidavit, although Wendy and
Oliva-Ramos were eventually allowed to use the bathroom,
they had to leave the door open while an ICE officer stood
outside the door, thus denying them the most rudimentary
considerations of privacy.
Clara was able to document that she was legally in the
United States. All others were eventually handcuffed, placed
in an ICE van and driven around while the officers made
several more raids. At each stop, the agents followed a
similar pattern of knocking on doors and making general
inquiries about the legal status of all of the occupants in a
residence. These stops resulted in two more individuals being
placed in the van.
At around 7:00 a.m., Oliva-Ramos and his family
arrived at the ICE office, where they were placed in a
detention room containing an open toilet. Oliva-Ramos
testified that there he was told to fill out papers written in
Spanish, and he was given the option of signing them. He
had to wait until the afternoon before he was questioned.6 He
claims that neither he nor his relatives were given food nor
water in the interim. The ICE officers who conducted the
raid eventually interviewed the detainees. Oliva-Ramos was
interviewed by ICE Officer Marlene Belluardo. After being
interviewed, Oliva-Ramos was charged with being removable
and was taken to a detention facility. While there, he was
informed of his right to a lawyer and given a list of free legal
service providers. Between 6:00 and 7:00 p.m., he was
finally given the first food that he had been allowed to eat
during his 15-hour ordeal.
6
He stated that he was not told that he had a right to remain
silent or that his answers could be used against him in a court
of law.
6
A. Immigration Court Proceedings
During the ensuing removal proceedings, Oliva-Ramos
testified on his own behalf with the assistance of a Spanish
interpreter. He was cross-examined about the raid, his arrest,
and his examination at the ICE office. He also presented the
supporting affidavits of Clara, Wagner, and Marvin, although
they were not present in court to testify.
The Government presented only one witness, the
arresting and interviewing ICE officer, Marlene Belluardo.
Officer Belluardo testified that she had taken part in
―hundreds‖ of home raids since participating in the raid at
Oliva-Ramos‘s apartment on March 26, 2007, but had no
independent recollection of the raid that led to Oliva-Ramos‘s
detention. Officer Belluardo stated that she does not
remember anything about the apprehension, but
acknowledged her participation based upon having filled out
Form I-213, the Record of Deportable/Inadmissible Alien,
which listed her as an arresting officer.7 She testified about
the general procedures used in ICE field operations, but her
only knowledge of Oliva-Ramos came from the I-213 form.
Officer Belluardo recognized him from the picture contained
on the I-213 form. She testified that she received three
months‘ training on how to conduct investigative work, how
to look for subjects with warrants, and about the confines of
the Fourth Amendment.
Belluardo also testified about the standard protocol for
fugitive operations. She said that when she goes to a home
with a warrant, it is a ―knock warrant,‖ which is an
administrative warrant. Someone has to respond to her knock
on the door and grant permission to enter, as an officer is only
permitted to enter with permission. Officer Belluardo
confirmed that there was no warrant for Oliva-Ramos but
only a deportation warrant for Maria. Belluardo testified that
it is standard protocol to get everyone in the house to a central
location so that the officers can identify the subject and
anyone else in the house. In addition, she testified that
everyone is brought into the living room as a central area of
safety for everyone in the house. Each person is asked his or
7
Three officers were listed as arresting officers.
7
her identity, and any person found to be in the United States
without documents or with questionable documents is taken
into custody. Finally, Officer Belluardo testified that, when
apprehending a suspect, questions asked are usually just to
identify the person and that no other questions are asked until
they are taken into custody and transported to the processing
area.
The Government also presented the following four
documents to support its charge of removability: Form I-213,
the Record of Deportable/Inadmissible Alien; Form I-215B,
the affidavit of Erick Oliva-Ramos; the face page of a
Guatemalan passport; and a Guatemalan consular
identification card. Oliva-Ramos objected to that evidence
and moved to preclude consideration of all of the
Government‘s evidence obtained during the raid of his
apartment and his subsequent arrest. He argued that the
evidence had been obtained by exploiting violations of the
Fourth Amendment that were both egregious and widespread,
and thus the exclusionary rule should apply. He also moved
to terminate the proceedings, and requested an evidentiary
hearing on his suppression motion.
The Immigration Judge denied the motion to suppress
and the motion to terminate the proceedings. As a threshold
matter, the IJ noted that the Government did not dispute that
Oliva-Ramos had been detained without a warrant. However,
the IJ cited to BIA authority that had relied on INS v. Lopez-
Mendoza, 468 U.S. 1032 (1984), wherein the BIA had stated:
―[E]ven assuming a warrantless arrest, the exclusionary rule,
which requires a court to suppress evidence that is the fruit of
an unlawful arrest or of other official conduct that violates the
[F]ourth [A]mendment, does not apply in deportation
proceedings.‖ The IJ concluded that ―[i]n removal
proceedings . . . an alien cannot generally suppress evidence
asserted to be procured in violation of the Fourth Amendment
unless the alleged violation(s) are so egregious as to
‗transgress notions of fundamental fairness.‘‖ (citing Lopez-
Mendoza, 468 U.S. at 1050-51).
In rejecting Oliva-Ramos‘s argument that the
Government had entered his home without valid consent in
violation of 8 C.F.R. § 287.8(f)(2) (2008), the IJ relied on the
8
Government‘s assertion that ―consent was obtained prior to
immigration officers entering the Respondent‘s residence
from a ‗person in control of the site to be inspected,‘ namely,
the Respondent‘s sister, Clara Oliva.‖8 The IJ explained:
―[T]he I-213 clearly indicates that consent to enter the
residence was obtained from Clara Oliva, and that ICE had a
warrant for Maria Oliva at that address.‖ In weighing the
testimony, the IJ noted that ―Ms. Belluardo testified that she
ha[d] no independent recollection of the specific events of
Respondent‘s detention, and her testimony is based on the
facts as documented in the I-213 which she prepared in the
ordinary course of business immediately following the
Respondent‘s detention.‖ The IJ also relied on Officer
Belluardo‘s testimony that ―obtaining consent prior to entry is
consistent with training ICE officers, including her, receive in
the course of employment with DHS.‖ In addition, the IJ
stated that Oliva-Ramos‘s testimony, and his sister Clara
Oliva‘s affidavit, were consistent with the testimony of
Officer Belluardo and the I-213. Thus, the IJ found that
―consent to enter the residence at 97A Palisade Avenue was
properly obtained prior to ICE officers‘ entry into the
8
8 C.F.R. § 287.8(f)(2) states in relevant part: ―An
immigration officer may not enter into the non-public areas of
a . . . residence including the curtilage of such residence, . . .
except as provided in section 287(a)(3) of the Act, for the
purpose of questioning the occupants . . . concerning their
right to be . . . in the United States unless the officer has
either a warrant or the consent of the owner or other person in
control of the site to be inspected.‖
The referenced exception found in Section 287(a)(3) of the
Immigration and Nationality Act relates to border searches. 8
U.S.C. § 1357(a)(3), 66 Stat. 233, INA § 287(a)(3) (2006)
(―Any officer or employee of the Service authorized under
regulations prescribed by the Attorney General shall have
power without warrant-- . . . within a reasonable distance
from any external boundary of the United States, to board and
search for aliens any vessel within the territorial waters of the
United States and any railway car, aircraft, conveyance, or
vehicle, and within a distance of twenty-five miles from any
such external boundary to have access to private lands, but
not dwellings, for the purpose of patrolling the border to
prevent the illegal entry of aliens into the United States.‖).
9
residence.‖ The IJ did not, however, evaluate any of the
evidence relevant to whether circumstances might have
existed to invalidate the alleged ―consent‖ or to determine if
the circumstances here implicated the exception to the
nonapplication of the exclusionary rule in removal
proceedings under Lopez-Mendoza that we discuss in detail
below.
Moreover, the IJ ruled that the documents Oliva-
Ramos sought to suppress were contained in what is known
as an ―A‖ file. The IJ relied upon United States v. Herrera-
Ochoa, 245 F.3d 495, 498 (5th Cir. 2001), in asserting that an
alien maintains no legitimate expectation of privacy in that
file, and therefore lacks standing to challenge its introduction
into evidence.
Oliva-Ramos also sought to subpoena testimony of the
additional ICE officers who were involved in his seizure as
well as certain documents that the Government had not
produced pursuant to Oliva-Ramos‘s Freedom of Information
Act request (―FOIA‖).9 Specifically, Oliva-Ramos sought the
production of documents related to the search and seizure of
his home and arrest, training manuals and documentation of
the ICE Fugitive Operation Task Force, relevant ICE policy
and procedures, and records related to the ICE officers who
arrested him. In addition, Oliva-Ramos moved to subpoena
the ICE officers who participated in his arrest. Although the
IJ indicated that she wanted to address the subpoenas at an
individual merits hearing, she never ruled on the motion to
subpoena the additional documents and witnesses.
At a later hearing on removability, the IJ found Oliva-
Ramos removable as charged but granted his request for
voluntary departure. Oliva-Ramos then appealed to the Board
of Immigration Appeals.
B. Board of Immigration Appeals Proceedings
The BIA first considered Oliva-Ramos‘s Fourth
Amendment claim that the Government had obtained
evidence of alienage without proper consent through coercion
9
See 5 U.S.C. § 552 (1982).
10
and duress during the raid of his home. The BIA declined to
address the claim as presented and cited to Lopez-Mendoza,
explaining that ―the Fourth Amendment exclusionary rule is
generally not applicable in civil removal proceedings.‖ In a
lengthy footnote, the BIA acknowledged the following
language in Lopez-Mendoza on which Oliva-Ramos based his
Fourth Amendment claim:
We are mindful that [in Lopez-Mendoza] a
plurality of the United States Supreme Court
opined that, in removal proceedings, ―egregious
violations of the Fourth Amendment or other
liberties that might transgress notions of
fundamental fairness and undermine the
probative value of the evidence‖ might
potentially warrant a reconsideration of the
exclusionary rule‘s role in civil removal
proceedings. INS v. Lopez-Mendoza, supra, at
1050-51. . . . Further, as the respondent makes
the argument that the DHS engages in
―widespread‖ violations of the Fourth
Amendment (Respondent‘s Br. at 42), we
acknowledge that the Supreme Court provided
for the prospective contingency that its
―conclusions concerning the exclusionary rule‘s
value might change, if there developed good
reason to believe that Fourth Amendment
violations by INS officers were widespread.‖
Id. at 1050. (citation omitted). However, first,
these comments from a plurality of the Supreme
Court are obiter dictum; second, no such ―good
reason to believe‖ has yet arisen in the eyes of
the Supreme Court; and, third, our own
precedents, by which we are bound, recognize
no such exception to the inapplicability of the
exclusionary rule premised on widespread
Fourth Amendment violations . . . .
The BIA also acknowledged that its precedential decisions
―have provided for the exclusion of evidence against an alien
in ‗fundamentally unfair‘ circumstances.‖ The Board then
noted that ―this principle of fundamental fairness is rooted in
notions of due process of law, not in the Fourth Amendment
11
exclusionary rule.‖ Thus, to the extent that the Board
considered Oliva-Ramos‘s argument at all, it did so ―in terms
of due process requirements.‖
The BIA found that the Government had satisfied its
initial burden of establishing alienage through the evidence
that Oliva-Ramos sought to suppress, including the Form I-
213 and Form I-215B, as well as his Guatemalan passport and
identification card. The BIA also concluded that Oliva-
Ramos had not rebutted that evidence prior to receiving a
grant of voluntary departure. The BIA did not believe that
any regulatory violations altered the outcome because the
documents the Government presented ―[were] inherently
reliable and were not shown to have been created under
impermissible coercion and duress.‖
The BIA then considered Oliva-Ramos‘s challenges to
certain administrative regulations governing ICE conduct.
First, it considered Oliva-Ramos‘s coercion claim that the
Government impermissibly threatened and coerced him when
it inspected the non-public, interior areas of his residence, in
violation of 8 C.F.R. § 287.8(f)(2).10 The BIA cited to the
IJ‘s finding ―that the DHS first obtained the consent of one of
the respondent‘s familial cohabitants before entering the
premises.‖ Since the BIA did not believe that the conclusion
was clearly erroneous, the BIA relied upon that finding when
considering all of Oliva-Ramos‘s claims.11
10
The BIA relied on Leslie v. Att’y Gen., 611 F.3d 171, 180
(3d Cir. 2010), for the principle that ―when an agency
promulgates a regulation protecting fundamental statutory or
constitutional rights of parties appearing before it, the agency
must comply with that regulation. Failure to comply will
merit invalidation of the challenged agency action without
regard to whether the alleged violation has substantially
prejudiced the complaining party.‖
11
The BIA also stated that it independently ―considered the
respondent‘s asserted bases for contending that the consent to
the officers‘ entry was coerced (or otherwise invalid) but
[was] not persuaded by them.‖
12
Second, Oliva-Ramos claimed that the Government
had violated 8 C.F.R. § 287.8(b)(1) by impermissibly
restraining his freedom through threats and coercion during
the inspection and investigation of his home. However, the
BIA reasoned that INA § 287(a)(1), the statute under which §
287.8(b)(1) was promulgated, permits warrantless
interrogation if ICE officers reasonably believe that a person
may be unlawfully in the United States. The BIA concluded
that requirement was satisfied once Oliva-Ramos presented
his Guatemalan passport and identification. The BIA also
relied on Oliva-Ramos‘s own testimony before the IJ that he
had no intention of leaving the apartment because he ―didn‘t
commit any crime.‖ During the hearing before the IJ, he had
been asked: ―[W]hat would have happened if you‘d asked the
officers to leave?‖ He responded, ―I couldn‘t tell the officers
to leave because it‘s the law and I didn‘t have anything to tell
them.‖
Third, Oliva-Ramos argued that the Government
violated 8 C.F.R. § 287.8(c)(2)(i) when it arrested him
without first obtaining a warrant. The BIA rejected that claim
because INA § 287(a)(2) specifically authorizes warrantless
arrests where ICE officers have reason to believe that
someone is here in the United States illegally and poses a risk
of flight if not detained. See also 8 C.F.R. § 287.8(c)(2)(ii).
The I-213 stated: ―A field interview revealed that the subject
was an alien unlawfully present in the United States and he
was arrested without a warrant in that he appeared to be a
flight risk.‖
The BIA also rejected Oliva-Ramos‘s claims that
regulatory violations that did not implicate the Fourth
Amendment entitled him to relief. The BIA did not believe
that Oliva-Ramos had established a violation of 8 C.F.R. §§
287.3(c) or 292.5(b) because he had been properly advised as
required before formal removal proceedings were initiated.12
12
8 C.F.R. § 287.3(c) provides in relevant part:
[A]n alien arrested without warrant and placed
in formal proceedings . . . will be advised of the
reasons for his or her arrest and the right to be
represented at no expense to the Government.
The examining officer will provide the alien
13
The BIA also rejected Oliva-Ramos‘s argument that his
examination by the same DHS officer who had arrested him
in violation of 8 C.F.R. § 287.3(a) entitled him to relief. That
regulation provides that ―[a]n alien arrested without a warrant
. . . will be examined by an officer other than the arresting
officer.‖13
The BIA similarly rejected Oliva-Ramos‘s final
regulatory claim that DHS had violated 8 C.F.R. §
287.8(d)(1) when it left him and his fellow detainees locked
and unattended in a van several times during a two-hour
with a list of the available free legal services
provided by organizations and attorneys
qualified . . . that are located in the district
where the hearing will be held. The examining
officer shall note on Form I–862 that such a list
was provided to the alien. The officer will also
advise the alien that any statement made may be
used against him or her in a subsequent
proceeding.
8. C.F.R. § 292.5(b) provides in relevant part: ―Whenever an
examination is provided for in this chapter, the person
involved shall have the right to be represented by an attorney
or representative who shall be permitted to examine or cross-
examine such person and witnesses, to introduce evidence, to
make objections . . . and to submit briefs.‖
13
The BIA held that this particular section requires a
demonstration of prejudice, unlike several of the other
regulatory provisions that do not require a showing of
prejudice under Leslie. The BIA did not reach the question of
prejudice. It concluded that Oliva-Ramos had not testified
that he was arrested by the same agent who examined him
after the arrest because he could not remember Officer
Belluardo being present during the raid. As discussed above,
Officer Belluardo had no independent recollection of this
particular home raid but conceded that she was likely present
since she filled out the Form I-213 for the investigation of
Oliva-Ramos‘s home.
14
period while transporting them to the detention facility.14 The
BIA rejected that contention because Oliva-Ramos had not
established a regulatory violation. He had not testified before
the IJ about any periods of time when he was left in the van.
The BIA noted that Oliva-Ramos had merely directed the IJ‘s
attention to an affidavit drafted before the suppression
hearing.15
The BIA then turned its attention to two allegations of
misconduct by the IJ. First, it considered Oliva-Ramos‘s
allegation that a translator had improperly translated the
Spanish word ―arma‖ into the English word ―arm‖ in the
sense of a body part as opposed to an armament or firearm.
The BIA found no due process violation because it concluded
that ―the word was conscientiously translated and . . . all the
parties present understood the respondent.‖ Second, Oliva-
Ramos alleged that the Immigration Judge demonstrated
improper bias but the BIA found that the transcript of the
hearing before the IJ reflected ―that the Immigration Judge
conducted the sometimes contentious and inherently difficult
proceedings fairly.‖ Thus, the BIA found no due process
violations with respect to the IJ‘s conduct of the removal
proceedings.
Finally, the BIA considered a motion to remand the
proceedings to the Immigration Judge to consider new
evidence that was not presented to the IJ. On February 18,
2009, while his appeal was pending before the BIA, Oliva-
Ramos moved to present previously unavailable evidence of
alleged widespread Fourth Amendment violations by ICE
14
8 C.F.R. § 287.8(d)(1) provides in relevant part: ―All
persons will be transported in a manner that ensures the safety
of the persons being transported. . . . The person being
transported shall not be left unattended during transport
unless the immigration officer needs to perform a law
enforcement function.‖
15
It appears that the BIA also required prejudice because it
found that this alleged regulatory violation did not ―implicate
fundamental statutory or constitutional rights at play in the
respondent’s removal proceeding.‖
15
officials.16 He stated that on October 4, 2007, he had
requested many documents relating to the procedures
employed by the Fugitive Operations Teams that conducted
the raid of his home. The Government had denied his FOIA
request for these documents, citing FOIA Exemptions 2 and
7(E).17 Oliva-Ramos only obtained that documentary
evidence after proceedings before the Immigration Judge
were finished. The documents were finally obtained through
a FOIA request and not made available until after the April
suppression hearing and his initial appeal to the BIA.18 Those
16
In addition, Oliva-Ramos also sought to present additional
evidence relating to the translator‘s interpretation of the word
―arma‖ discussed above.
17
In denying his FOIA request, the Government explained:
FOIA Exemption 2(high) protects information
applicable to internal administrative and
personnel matters, such as operating rules,
guidelines, and manual of procedures of
examiners or adjudicators, to the extent that
disclosure would risk circumvention of an
agency regulation or statute, impede the
effectiveness of an agency‘s activities, or reveal
sensitive information that may put the security
and safety of an agency activity or employee at
risk. Whether there is any public interest in
disclosure is legally irrelevant. Rather, the
concern under high 2 is that a FOIA disclosure
should not benefit those attempting to violate
the law and avoid detection.
ICE Response to Oliva-Ramos‘s FOIA request, definition of
FOIA Exemption 2 (high) (Feb. 19, 2008)). The Government
further explained that ―FOIA Exemption 7(E) protects records
compiled for law enforcement purposes, the release of which
could disclose techniques and/or procedures for law
enforcement investigations or prosecutions, or could
reasonably be expected to risk circumventions of the law.‖
Id. (citing ICE Response to FOIA Request, definition of
FOIA Exemption 7(E) (Feb. 19, 2008)).
16
documents were attached as an exhibit to the motion to
remand. The motion included ICE memoranda regarding the
Fugitive Operations Teams and ICE statistics on arrests.
The ICE memorandum dated September 29, 2006
changed the agency‘s policy with respect to achieving an
arrest target of 1,000 ―fugitive aliens‖ per Fugitive Operations
Team (―FOT‖) as previously established in an ICE
memorandum dated January 31, 2006. The January
memorandum had specified that ―collateral arrests‖ would not
be counted toward the goal of 1,000 arrests. The September
memorandum changed the policy to permit up to fifty percent
of each team‘s arrest goal to be satisfied by counting
―collateral arrests.‖ These are arrests of persons who were
not themselves the targets of the FOT and had not missed
removal hearings or departure deadlines, but were discovered
during ICE operations. In the following fiscal year, when
Oliva-Ramos was detained by a FOT that was after someone
else, collateral arrests comprised forty percent of the total
number of ICE arrests by FOTs. Collateral arrests accounted
for nearly twenty-five percent of all FOTs arrests in fiscal
year 2007. Oliva-Ramos argued that he was detained
pursuant to this policy, and that the policy both encouraged
and resulted in widespread violations of the Fourth
Amendment.
However, the Board reasoned that remand was
unwarranted because the BIA was not bound by the Lopez-
Mendoza plurality opinion. As noted above, in Lopez-
Mendoza, the Court had recognized the possibility of the
exclusionary rule applying to civil deportation proceedings
based on widespread or egregious violations of the Fourth
Amendment.
Thus, the BIA dismissed the appeal, denied Oliva-
Ramos‘s motion to remand, and this petition for review
followed.
II. Standard of Review
18
He obtained the documents after the evidence was released
to the public as a result of FOIA litigation by a professor at
the Benjamin N. Cardozo School of Law.
17
The BIA issued its own opinion. We therefore review
its decision rather than that of the IJ. Li v. Att’y. Gen., 400
F.3d 157, 162 (3d Cir. 2005). Where the ―BIA‘s opinion
directly states that the BIA is deferring to the IJ, or invokes
specific aspects of the IJ‘s analysis and factfinding in support
of the BIA‘s conclusions,‖ we review both the BIA and IJ
decisions. Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir.
2005).
We review the BIA‘s denial of a motion to reopen for
abuse of discretion. Luntungan v. Att’y Gen., 449 F.3d 551,
555 (3d Cir. 2006). ―Under the abuse of discretion standard,
the Board‘s decision must be reversed if it is arbitrary,
irrational, or contrary to law.‖ Sevoian v. Ashcroft, 290 F.3d
166, 174 (3d Cir. 2002) (internal quotation marks omitted).
We review the BIA‘s conclusions of law such as ―whether the
BIA applied the correct legal standard in considering the
motion to reopen‖ and the underlying constitutional claims de
novo. Fadiga v. Att’y Gen., 488 F.3d 142, 153-54 (3d Cir.
2007).
III. Discussion
We begin our analysis with a discussion of INS v.
Lopez-Mendoza, as that case is central to our disposition of
these petitions. We then proceed to consider, in turn, Oliva-
Ramos‘s due process claims, Fourth Amendment claims, and
claims predicated on various regulatory violations.
A. Lopez-Mendoza
In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the
Supreme Court held that the exclusionary rule generally does
not apply to removal proceedings. The Court reached that
conclusion after balancing the deterrent effect of the
exclusionary rule against the social cost of extending its
application to civil removal proceedings. However, a
plurality of the Justices was careful to add the following
qualifier to their discussion of that balancing:
Our conclusions concerning the exclusionary
rule‘s value might change, if there developed
18
good reason to believe that Fourth Amendment
violations by INS officers were widespread.
Finally, we do not deal here with egregious
violations of Fourth Amendment or other
liberties that might transgress notions of
fundamental fairness and undermine the
probative value of the evidence obtained. At
issue here is the exclusion of credible evidence
gathered in connection with peaceful arrests by
INS officers. We hold that evidence derived
from such arrests need not be suppressed in an
INS civil deportation hearing.
Lopez-Mendoza, 468 U.S. at 1050-51 (footnote omitted)
(internal citations omitted).
In Lopez-Mendoza, two citizens of Mexico were
ordered deported after separate immigration proceedings.
INS agents arrested Lopez-Mendoza at his job without a
warrant to search the jobsite or a warrant to arrest anyone
there. After the shop owner refused to permit the agents to
speak with his employees during work hours, they devised a
scheme to distract the shop owner so that they could question
his employees. While he was being questioned, Lopez-
Mendoza told the agents that he was a citizen of Mexico, and
that he had entered the United States without inspection by
immigration authorities.
In the proceedings that followed, Lopez-Mendoza
argued that statements he made pursuant to his warrantless
arrest should not have been admitted in his deportation
proceedings. The Court reasoned that officers who violated
an arrestee‘s rights were already subject to civil liability, and
that in civil deportation proceedings the exclusionary rule ―‗is
unlikely to provide significant, much less substantial,
additional deterrence.‘‖ Id. at 1046 (quoting United States v.
Janis, 428 U.S. 433, 458 (1976)).
Nevertheless, as we quoted above, a plurality of the
Court allowed for the possibility of suppression in the case of
19
widespread or egregious violations of constitutional rights.19
Four Justices dissented. Each dissenting Justice believed that
the exclusionary rule should generally apply in deportation
proceedings. Justice White disagreed with the result of the
majority‘s balancing of the costs and benefits of applying the
exclusionary rule in removal proceedings. He would have
applied the rule without the limitation imposed by the
majority decision. See 468 U.S. at 1052 (White, J.,
dissenting) (―I believe that the conclusion of the majority is
based upon an incorrect assessment of the costs and benefits
of applying the rule in [civil removal proceedings].‖). Justice
Brennan agreed, stating that ―I fully agree with Justice White
that . . . the exclusionary rule must apply in civil deportation
proceedings‖ not because it is a deterrent but because ―of the
Fourth Amendment itself.‖ Id. at 1051 (Brennan, J.,
dissenting). Justice Marshall also ―agree[d] with Justice
White that . . . [precedent] compels the conclusion that the
exclusionary rule should apply in civil deportation
proceedings.‖ Id. at 1060 (Marshall, J., dissenting). And,
finally, Justice Stevens joined all of Justice White‘s dissent
except for the latter‘s conclusion that the good faith exception
to the exclusionary rule should apply with equal force to
warrantless immigration searches because the Court had yet
to conclude that the good faith exception applied to
warrantless searches generally. Id. at 1061 (Stevens, J.,
dissenting). Thus, though technically correct to characterize
the 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. Thus, where an
alien can establish either of those two circumstances, the
plurality opinion can only be read as affirming that the
remedy of suppression justifies the social cost.20
19
While Chief Justice Rehnquist joined the portion of the
opinion holding that the exclusionary rule generally did not
apply in deportation proceedings, he did not join in the part of
the opinion recognizing that egregious or widespread Fourth
Amendment violations might warrant application of the
exclusionary rule.
20
This is not surprising since, as Justice Brennan had
explained, lawless disregard by police for the privacy
20
Thus, Lopez-Mendoza sanctions the application of the
exclusionary rule in cases where constitutional violations by
immigration officers are ―widespread‖ or evidence has been
obtained as a result 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.‖ Lopez-Mendoza, 468 U.S. at 1050-
51. With this rule in mind, we proceed to consider Oliva-
Ramos‘s claims.
B. Due Process Claims
We first consider Oliva-Ramos‘s claims that the IJ
violated his right to due process by failing to rule on his
pending motions to subpoena witnesses and documents and
by declining to correct translation errors. Oliva-Ramos also
claims that the BIA denied him due process by declining to
remand his case to the IJ to consider newly available evidence
of egregious and/or widespread abuses.
We are, of course, aware of the very valid concern
expressed in Lopez-Mendoza that ―a deportation hearing is
intended to provide a streamlined determination of eligibility
to remain in this country. . . .‖ Id. at 1039. Nevertheless,
removal proceedings must comport with basic notions of due
process. Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.
2005). Accordingly, concerns for brevity, efficiency and
expedience must not be used to justify denying an alien the
right to produce witnesses where that request is appropriate
and the witnesses‘ presence appears necessary to satisfy basic
notions of due process. That is particularly true where the
IJ‘s refusal to issue or enforce subpoenas is contrary to the
very regulatory scheme governing the removal process.
interests protected by the Fourth Amendment creates
significant social costs that cannot be ignored. See Stone v.
Powell, 428 U.S. 465, 524 (1976) (Brennan, J., dissenting)
(―To sanction disrespect and disregard for the Constitution in
the name of protecting society from law-breakers is to make
the government itself lawless and to subvert those values
upon which our ultimate freedom and liberty depend.‖)
(footnote omitted).
21
Here, the IJ‘s refusal to grant the subpoenas is contrary
to 8 C.F.R. § 1003.35(b). Under that regulation, ―[a]n
Immigration Judge may issue a subpoena upon his or her own
volition or upon application of the Service or the alien.‖ Id.
at § 1003.35(b)(1). When a party applies for a subpoena, the
movant must ―state in writing or at the proceeding . . . what
he or she expects to prove by such witnesses or documentary
evidence, and . . . show affirmatively that he or she has made
diligent effort, without success to produce the same.‖ Id. at §
1003.35(b)(2). Although the regulation provides some
discretion to an IJ, ―[u]pon being satisfied that a witness will
not appear and testify or produce documentary evidence and
that the witness‘ evidence is essential, the Immigration Judge
shall issue a subpoena.‖ Id. at § 1003.35(b)(3) (emphasis
added). Given the circumstances here, we believe that the IJ
abused her discretion in determining that the witnesses and
documents were not essential. Cf. Cuadras v. INS, 910 F.2d
572, 573 (9th Cir. 1990) (―[T]he IJ is not required to issue the
subpoena unless she is satisfied that the evidence is
‗essential.‘ 8 C.F.R. 287.4(a)(2)(ii)(C). Since the IJ did not
rely on the BHRHA report, he did not abuse his discretion in
determining that the witnesses and documents were not
essential.‖).
As we explained above, during the removal
proceedings before the IJ, Oliva-Ramos moved to subpoena
documents related to the search and seizure of his home and
arrest, documents relevant to the underlying policy for
conducting such searches and seizures, including training
manuals and documentation of ICE Fugitive Operation Task
Force policy and procedures, and records related to the ICE
officers who arrested him. He also attempted to subpoena the
other ICE officers who participated in his arrest.
Oliva-Ramos satisfied both requirements of the
regulation. The requested witnesses and documents were
essential to Oliva-Ramos‘s claim of egregious or widespread
violations and alleged constitutional violations by the
Government. ICE policy and practice manuals on search and
seizure practices and its practices with respect to consent and
entry of dwellings could have shed light on the contested
nature of Clara Oliva‘s consent, as well as whether Oliva-
22
Ramos was improperly seized. In addition, the testimony of
additional officers who were present during the investigation
and arrest of Oliva-Ramos could have been used to impeach
the testimony of the Government‘s sole witness during the
suppression hearing or to adduce additional facts that may
have altered the analysis of alleged constitutional violations,
including the nature of Clara‘s alleged consent. Not allowing
Oliva-Ramos to introduce this testimony is particularly
problematic here because the only witness who testified for
the Government could not recall Oliva-Ramos‘s seizure or
any facts related to it. Since the Government forced Oliva
Ramos to litigate his FOIA request, it should have been clear
to the IJ that, even though Oliva-Ramos had exercised
diligence, he was not able to effectively present his case and
that he was not attempting to delay or obfuscate the
proceedings.
We recognize that ―[o]ne who raises the claim
questioning the legality of the evidence must come forward
with proof establishing a prima facie case before the Service
will be called on to assume the burden of justifying the
manner in which it obtained the evidence.‖ Matter of
Barcenas, 19 I. & N. Dec. 609, 611 (1988). Oliva-Ramos
attempted to meet his burden, but was thwarted by his
inability to obtain the evidence and witnesses necessary to do
so. Only after the briefing before the BIA did the
Government turn over the documents that Oliva-Ramos had
tried to subpoena.
As noted above, the Government had previously
resisted that subpoena, and Oliva-Ramos appeared before the
IJ without the benefit of those documents or the witnesses he
had tried to subpoena. He was finally able to obtain the
documentary evidence only after members of a clinical
program at the Cardozo School of Law initiated FOIA
litigation. The documents thus obtained were attached to his
motion to reopen and were clearly relevant to his burden of
establishing whether any abuses were widespread and/or
egregious. Rather than tender a timely disclosure of such
documents pursuant to the subpoena, the Government forced
Oliva-Ramos to rely on a FOIA request to obtain documents
that were in the exclusive custody and control of the
Government and were clearly germane to his legal claims.
23
We do not suggest that the documents would have
satisfied Oliva-Ramos‘s burden had the IJ or BIA reviewed
them. We only note that the documents certainly appeared
relevant to Oliva-Ramos‘s legal claims, and there is nothing
to suggest that they were sought in bad faith or to delay the
proceedings.
Because the Immigration Judge never ruled on Oliva-
Ramos‘s motion to subpoena witnesses and documents, the
BIA had no underlying order to review. Thus, we will grant
Oliva-Ramos‘s motion to reopen the proceedings in order to
permit him to subpoena the additional witnesses and to
introduce newly available documents, and will instruct the
BIA to remand to the Immigration Judge in the event that
additional evidentiary proceedings are appropriate.
We will, however, affirm the BIA‘s ruling that errors
in the transcript and related questioning did not deny Oliva-
Ramos the due process of law. Any such errors were clarified
and the record demonstrates that Olivia-Ramos fully
understood the questions asked of him during his interview
with Officer Belluardo.
Inasmuch as we conclude the BIA abused its discretion
in denying Oliva-Ramos‘s motion to reopen, we need not
reach Oliva-Ramos‘s additional due process claims based on
the conduct of the removal hearings.
C. The Exclusionary Rule
We now address the heart of Oliva-Ramos‘s petition.
Oliva-Ramos argues that the BIA misapplied Fourth
Amendment law when evaluating his various Fourth
Amendment claims. He claimed that the ICE agents failed to
obtain proper consent to enter the apartment, that they
arrested him without a warrant and without probable cause,
and that they seized him without reasonable suspicion.
Relying on Lopez-Mendoza, Oliva-Ramos contends that
Fourth Amendment law provides for the suppression of
evidence obtained as a result of these violations because they
were egregious and/or widespread. According to Oliva-
Ramos, the BIA erred in categorically rejecting all of Oliva-
24
Ramos‘s Fourth Amendment arguments on the ground that
the exclusionary rule does not apply in deportation
proceedings, and thereby erred in failing to evaluate, first,
whether ICE agents violated Oliva-Ramos‘s Fourth
Amendment rights, and, second, whether those violations
were egregious or widespread. We agree.
The BIA rejected Oliva-Ramos‘s reliance on Lopez-
Mendoza because it regarded the ―comments from a plurality
of the Supreme Court [to be] obiter dictum.‖ The BIA
explained that the Court had not yet found circumstances
sufficient to apply the exclusionary rule in removal
proceedings, and the Board‘s ―own precedents . . . recognize
no such exception to the inapplicability of the exclusionary
rule premised on widespread Fourth Amendment violations.‖
There are several flaws in the BIA‘s approach.
The BIA leapfrogged over the serious concerns it
should have addressed under Lopez-Mendoza about the
manner in which the evidence was obtained here. See
Almeida-Amaral v. Gonzales, 461 F.3d 231, 234-35 (2d Cir.
2006); United States v. Navarro-Diaz, 420 F.3d 581, 587 (6th
Cir. 2005); Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir.
1994); cf. United States v. Stabile, 633 F.3d 219, 243 (3d Cir.
2011) (―Typically, the exclusionary rule requires that we
suppress evidence obtained as a result of an illegal search.‖).
We must reject the BIA‘s reading of Lopez-Mendoza
that would only permit suppression of evidence based on
―fundamentally unfair‖ circumstances in violation of the due
process clause of the Fifth Amendment. The BIA‘s analysis
of Lopez-Mendoza views that opinion only as a plurality. In
doing so, the BIA ignored the fact that almost all of the
Justices on the Court agreed that the exclusionary rule should
apply to some extent in removal hearings. As we explained
above, eight of the nine Justices agreed with that proposition.
Four would have limited the rule to instances of widespread
or egregious violations of law by Government officials, and
four others would apply the rule without that condition. See
Puc-Ruiz v. Holder, 629 F.3d 771, 778 n.2 (8th Cir. 2010)
(citing Lopez-Mendoza, 468 U.S. at 1051-61 (Brennan,
White, Marshall, and Stevens, JJ., dissenting)); see also
Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 n.2 (9th Cir.
25
1994) (same).
Moreover, even if the pronouncement in Lopez-
Mendoza was dicta as the BIA labeled it, Supreme Court dicta
should not be so cavalierly cast aside. See Official Committee
of Unsecured Creditors v. Chinery, 330 F.3d 548, 561 (3d
Cir. 2003) ( ―[W]e should not idly ignore considered
statements the Supreme Court makes in dicta‖); see also
Wroblewska v. Holder, 656 F.3d 473, 478 (7th Cir. 2011)
(―The Supreme Court has required a showing of ‗egregious
violations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness‘ before the
exclusionary rule will apply in immigration proceedings.
Lopez-Mendoza, 468 U.S. at 1050-51. It makes no difference
that Wroblewska‘s argument is styled as a due-process
argument rather than one based on the Fourth Amendment.‖).
―Accordingly, it is reasonable to read Lopez-Mendoza as
showing that eight Justices would have applied the
exclusionary rule in circumstances where evidence was
obtained through an ‗egregious‘ Fourth Amendment
violation.‖ Puc-Ruiz, 629 F.3d at 778 n.2. The fact that the
Court has not yet applied the rule in a deportation proceeding
cannot undermine the fact that the Court has allowed for that
possibility. The fact that the BIA believed its own precedents
did not recognize the exception set out in Lopez-Mendoza can
neither negate nor minimize the fact that the exception has
been recognized by the Supreme Court.
Accordingly, we reiterate today that the exclusionary
rule may apply in removal proceedings where an alien shows
―egregious violations of Fourth Amendment or other liberties
that might transgress notions of fundamental fairness and
undermine the probative value of the evidence obtained.‖
Lopez-Mendoza, 468 U.S. at 1051; see also United States v.
Bowley, 435 F.3d 426, 430 (3d Cir. 2006) (―The Court in
Lopez-Mendoza was careful to qualify its broad statement by
noting that it was not considering ‗egregious violations of
Fourth Amendment or other liberties that might transgress
notions of fundamental fairness and undermine the probative
value of the evidence obtained.‘‖).
The BIA therefore erred in concluding that the
discussion in Lopez-Mendoza lacked the force of law, and the
26
Board clearly failed to conduct the proper analysis to
determine whether any such egregious violations occurred.
The IJ and the Board should have, but did not, first determine
whether agents violated Oliva-Ramos‘s Fourth Amendment
rights and second, whether any such violations implicated the
Lopez-Mendoza exception for being widespread or egregious.
We will briefly note the possible merits of each prong of this
argument against the circumstances here.
1. Egregious Violations of the Fourth Amendment
We have not had occasion to consider when conduct
by ICE officials (or anyone acting in a similar role) would
constitute the kind of egregious violations that could trigger
the protections endemic in the exclusionary rule and justify
applying the rule in the civil arena. We now take this
opportunity to more precisely define the standard that should
be used in determining whether unlawful conduct by
governmental officers rises to the level of an ―egregious‖
violation of the Fourth Amendment.
In Lopez-Mendoza, the Supreme Court cited Rochin v.
California, 342 U.S. 165 (1952), as an example 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.‖ Lopez-Mendoza,
468 U.S. at 1050-51. In Rochin, three deputy sheriffs forcibly
entered a home and saw Rochin swallow some capsules
which were believed to be a controlled substance. In order to
recover that evidence, Rochin was taken to a hospital where a
doctor induced vomiting at the direction of one of the officers
by inserting a tube into Rochin‘s stomach and pumping a
chemical into him. The Supreme Court found that such
conduct offended even ―hardened sensibilities.‖ Rochin, 342
U.S. at 172. It ―shock[ed] the conscience‖ and violated
Rochin‘s right to due process under the Constitution. Id.
Rochin was decided before the Fourth Amendment
was applied to the states through incorporation by the
Fourteenth Amendment. See Mapp v. Ohio, 367 U.S. 643
(1961). ―Consequently, the Court has not relied on the
Rochin ‗shocks the conscience‘ standard but has instead
applied a Fourth Amendment reasonableness analysis in cases
that, like Rochin, involved highly intrusive searches or
27
seizures.‖ Lester v. City of Chicago, 830 F.2d 706, 711 (7th
Cir. 1987). Moreover, the Supreme Court has rejected the use
of the Fourteenth Amendment‘s ―shocks the conscience‖
standard in Section 1983 claims involving excessive force
under the Fourth Amendment. See Graham v. Connor, 490
U.S. 386, 394-95 (1989). ―Because different standards attach
to the various rights, identifying the proper constitutional
approach is essential.‖ Gottlieb ex rel. Calabria v. Laurel
Highlands School Dist., 272 F.3d 168, 171 (3d Cir. 2001).
Thus, ―the difference between reviewing [the Government‘s]
actions under the reasonableness standard of the Fourth
Amendment or the shocks the conscience standard of the
Fourteenth Amendment may be determinative.‖ Id.
The jurisprudence that has developed for ―ordinary‖
Fourth Amendment violations—where the test is
―reasonableness‖—is critical to determining whether Fourth
Amendment violations occurred in the first instance.
However, a violation must be more than ―unreasonable‖ for it
to satisfy the higher threshold of an ―egregious‖ Fourth
Amendment violation under Lopez-Mendoza. See Gonzalez-
Rivera v. INS, 22 F.3d at 1448 (―We cannot determine
whether the IJ properly excluded the I-213 Form based solely
on our conclusion that the officers‘ conduct was
unreasonable.‖); Puc-Ruiz, 629 F.3d at 778 (―Lopez-Mendoza
requires more than a violation to justify exclusion.‖). The
gap between reasonableness and egregious violations has led
to our sister courts of appeals employing varying approaches
to determining whether a Fourth Amendment violation is
egregious. We consider some of those approaches here.
The Court of Appeals for the Ninth Circuit has adopted
a test resembling the qualified immunity inquiry into whether
a constitutional violation was the result of bad faith.
Orhorhaghe, 38 F.3d at 493. After establishing that a Fourth
Amendment violation has occurred, the Ninth Circuit
considers ―whether the agents committed the violations
deliberately or by conduct a reasonable officer should have
known would violate the Constitution.‖ Id. The test was
developed in Adamson v. C.I.R., 745 F.2d 541, 545 (9th Cir.
1984), after analyzing the Janis decision, 428 U.S. 433
(1976), that the Supreme Court relied on for the weighing of
interests analysis in Lopez-Mendoza. The Adamson court
28
determined from ―language in Lopez-Mendoza that deterrence
is not the only consideration‖ underlying the exclusionary
rule. 745 F.2d at 545. ―[I]n addition to deterrence, the
exclusionary rule serves the vital function of preserving
judicial integrity.‖ Id. The Ninth Circuit concluded that if
―police unreasonably violated the defendant‘s fourth
amendment rights, the integrity of the courts would be
implicated.‖ Id. at 546.
Oliva-Ramos‘s petition, however, demonstrates the
difficulty courts and agencies face in adopting a test that is
perched on the fulcrum of the good faith of the police. Oliva-
Ramos has alleged that it was ICE‘s policy to detain
individuals without reasonable suspicion and to enter homes
during pre-dawn raids without consent. He also alleges that
the officers who carry out these pre-dawn raids are acting
under the guidance of ICE policy. Thus, focusing only on
their good faith would permit conduct that may be objectively
reasonable based on directives of the Department of
Homeland Security, but nevertheless result in routine
invasions of the constitutionally protected privacy rights of
individuals.21
In Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir.
2006), the Court of Appeals for the Second Circuit also
addressed this issue. There, Almeida-Amaral, who was 17
years old, walked into a parking lot that was adjacent to a gas
station in southern Texas. He was approached by a
uniformed border patrol agent who stopped him and asked for
identification. Almeida-Amaral was arrested when he
produced a Brazilian passport and made subsequent
21
This analysis must, by its very nature, differ from an
inquiry into an officer‘s good faith that allows evidence to be
used at a trial even though it was seized by an overly broad
warrant if the Government can establish the good faith of the
officers who relied on the defective warrant. See Mass. v.
Sheppard, 468 U.S. 981, 985-87 (1984); United States v.
Ninety-Two Thousand Four Hundred Twenty-Two Dollars
and Fifty-Seven Cents, 307 F.3d 137, 151 (3d Cir. 2002). The
egregious inquiry under Lopez-Mendoza cannot be sanitized
by the underlying agency policy even if the good faith of the
immigration officer is established.
29
statements that formed the basis of an I-213 Form and an
order of deportation. When removal proceedings were
instituted against him, Almeida-Amaral argued that his
passport and statements to the police should not be considered
because they were obtained upon a warrantless seizure and
arrest in violation of the Fourth Amendment.22
The Court of Appeals for the Second Circuit began its
discussion by explicitly adopting the Lopez-Mendoza
exception applying the exclusionary rule in civil removal
proceedings. See id. at 234 (―[W]e now apply it as the law of
the circuit.‖). It then held 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.‖ Id. at
235. We accept the test adopted by the Second Circuit with
slight modification.
The Second Circuit made clear that the probative value
of the evidence obtained is irrelevant to the inquiry. We
agree that the probative value of the evidence obtained cannot
be part of the calculus. In Rochin, the capsules that were
forcibly removed from the defendant‘s stomach were highly
probative and extraordinarily reliable evidence that he had
consumed a controlled substance. Yet, the Supreme Court
had no problem holding that the evidence must be suppressed
because of the tactics the police used to extract it. See
Gonzalez-Rivera, 22 F.3d at 1451. ―Indeed, Rochin stated in
no uncertain terms that reliability cannot be the sole
touchstone of the Fourth Amendment.‖ Almeida-Amaral, 461
F.3d at 235 (citing Rochin, 342 U.S. at 173). However, we
think it is circular to refer to an ―egregious violation that was
fundamentally unfair,‖ or one that undermines the reliability
or the probative value of the evidence ―regardless of its
egregiousness or unfairness,‖ because the inquiry must
determine whether an egregious violation has occurred. We
therefore conclude that evidence will be the result of an
22
He also argued that since he was an unaccompanied minor,
his statement was obtained in violation of applicable
regulations. The court did not focus on that claim.
30
egregious violation within the meaning of Lopez-Mendoza, if
the record evidence established either (a) that a constitutional
violation that was fundamentally unfair had occurred, or (b)
that the violation—regardless of its unfairness—undermined
the reliability of the evidence in dispute. With that alteration,
we adopt the reasoning of the Court of Appeals for the
Second Circuit. See id. at 235.
The Second Circuit did not discuss further the contours
of the second prong of its approach—―that the violation-
regardless of its egregiousness or unfairness-undermined the
reliability of the evidence in dispute‖—because the facts of
the case did not raise ―doubts about the veracity of the
evidence obtained as a result of the seizure.‖ Id. at 235.
Rather, the court focused on when a Fourth Amendment
violation may be ―fundamentally unfair.‖ First, the court
emphasized that whether a violation is fundamentally unfair
depends heavily upon the facts of each case.23 In Almeida-
Amaral‘s case, the court found that ―two principles . . . bear
on whether petitioner suffered an egregious violation of his
constitutional rights.‖ Id. The court explained:
First, the egregiousness of a constitutional
violation cannot be gauged solely on the basis
of the validity (or invalidity) of the stop, but
must also be based on the characteristics and
severity of the offending conduct. Thus, 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. Second, 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).
23
The court explained in a footnote that ―we do not intend to
give an exhaustive list of what might constitute an egregious
violation of an individual‘s rights. We emphasize these
principles only because they are especially germane to the
facts and circumstances of the case before us.‖ Almeida-
Amaral, 461 F.3d at 235 n.1.
31
Id. It added that ―exclusion may well be proper where the
seizure itself is gross or unreasonable in addition to being
without a plausible legal ground, e.g., when the initial illegal
stop is particularly lengthy, there is a show or use of force,
etc.‖ Id. at 236. And second, where ―there is evidence that
the stop was based on race, the violation would be egregious,
and the exclusionary rule would apply.‖ Id. at 237.
We discern a few guiding principles from Almeida-
Amaral. First, and most importantly, courts and agencies
must adopt a flexible case-by-case approach for evaluating
egregiousness, based on a general set of background
principles which fulfill the two-part Lopez-Mendoza test. See
id. at 235 n.1 (―[W]e do not intend to give an exhaustive list
of what might constitute an egregious violation of an
individual‘s rights.‖). Second, those evaluating the
egregiousness of the violation should pay close attention to
the ―characteristics and severity of the offending conduct.‖
Id. at 235. As the Court of Appeals for the First Circuit
noted, ―evidence of any government misconduct by threats,
coercion or physical abuse‖ might be important
considerations in evaluating egregiousness. Kandamar v.
Gonzales, 464 F.3d 65, 71 (1st Cir. 2006). And the Court of
Appeals for the Eighth Circuit found evidence of ―physical
brutality‖ and an ―unreasonable show or use of force‖
relevant to the egregiousness inquiry. Puc-Ruiz, 629 F.3d at
778-79. In rejecting the petitioner‘s egregiousness claim, that
court also noted it was not dealing with ―a case in which
police officers invaded private property and detained
individuals with no articulable suspicion whatsoever.‖ Id. at
779 (emphasis in original).
These cases demonstrate that there is no one-size-fits-
all approach to determining whether a Fourth Amendment
violation is egregious. Indeed, the exceptions announced in
Lopez-Mendoza do not suggest or imply that any strict test-
based approach is appropriate or warranted. Using this
formulation of the rule as its guide, on remand, the BIA‘s
inquiry should include such factors as: whether Oliva-Ramos
can establish intentional violations of the Fourth Amendment,
whether the seizure itself was so gross or unreasonable in
addition to being without a plausible legal ground, (e.g., when
the initial illegal stop is particularly lengthy, there is an
32
unnecessary and menacing show or use of force, etc.),
whether improper seizures, illegal entry of homes, or arrests
occurred under threats, coercion or physical abuse, the extent
to which the agents reported to unreasonable shows of force,
and finally, whether any seizures or arrests were based on
race or perceived ethnicity. These factors are illustrative of
the inquiry and not intended as an exhaustive list of factors
that should always be considered, nor is any one factor
necessarily determinative of the outcome in every case.
Rather, the familiar totality of the circumstances must guide
the inquiry and determine its outcome. Thus, on remand, the
BIA (and perhaps the IJ) must meaningfully examine the
particular facts and circumstances of the ICE agents‘ conduct.
To the extent that the factors discussed above are relevant,
they should consider them.24 However, the analysis should
not be limited to these factors, and Oliva-Ramos is free on
remand to emphasize any particular characteristics of Clara‘s
alleged consent, and his seizure and arrest that he believes
renders the ICE agents‘ conduct egregious. In turn, the BIA
(and perhaps, the IJ) must consider both whether the ICE
agents violated Oliva-Ramos‘s Fourth Amendment rights and
whether those violations were egregious.
2. Widespread Violations of the Fourth
Amendment
To our knowledge, no court has explicitly adopted or
applied the portion of the Lopez-Mendoza pronouncement
that ―conclusions concerning the exclusionary rule‘s value
might change, if there developed good reason to believe that
Fourth Amendment violations by INS officers were
widespread.‖ 468 U.S. at 1050. Yet it is as much a part of
the Lopez-Mendoza discussion as ―egregious‖ violations, and
we cannot ignore it simply because we are forced to write on
the proverbial ―blank slate.‖ Rather, determining when
widespread violations of the Fourth Amendment may serve as
an independent rationale for applying the exclusionary rule in
24
However, it is important to note—as explained above—the
inquiry does not turn on the good/bad faith of the agents
involved. Rather, this is but one of many circumstances that
may be relevant in a particular case.
33
civil removal proceedings is simply a matter of first
impression for us.25 Given the discussion in Lopez-Mendoza,
we think that most constitutional violations that are part of a
pattern of widespread violations of the Fourth Amendment
would also satisfy the test for an egregious violation, as
discussed above.
On other occasions, in a concurring opinion, Justice
Kennedy has acknowledged that evidence of widespread
Fourth Amendment violations would raise serious concerns.
In his concurring opinion in Hudson v. Michigan, 547 U.S.
586 (2006), Justice Kennedy explained:
Today‘s decision does not address any
demonstrated pattern of knock-and-announce
violations. If a widespread pattern of violations
25
Allegations of widespread violations of the Fourth
Amendment have been presented previously before this Court
in a different context. See Argueta v. United States
Immigration & Customs Enforcement, 643 F.3d 60 (3d Cir.
2011). There, the plaintiffs brought a Bivens action (allowing
for damages remedies for constitutional violations by federal
agents) against various federal and local immigration
officials, as well as officers who actually participated in raids
that led to the plaintiffs‘ arrest. The plaintiffs alleged that
Operation Return to Sender was being conducted by
inadequately trained officers who relied on an ‗―outdated and
inaccurate [database] in up to 50% of cases,‘‖ id. at 64, and
who engaged in a ‗―practice‘ of unlawful and abusive raids
[that] flourished as a predictable consequence of the
‗arbitrary‘ and ‗exponentially-increased quotas‘‖ that drove
the programmatic abuses. Id. The plaintiffs further alleged
that the predictable ―collateral arrests‖ of persons not targeted
by the raids were allowed to count toward the inflated quotas
of arrests that officers were expected to meet and that this
resulted in a pattern of constitutional abuses that continued
once the officers ―actually entered the home.‖ Id. at 64-65.
We did not address the merits of the alleged constitutional
torts because the only issues before us involved the
defendants‘ qualified immunity.
34
were shown, and particularly if those violations
were committed against persons who lacked the
means or voice to mount an effective protest,
there would be reason for grave concern. Even
then, however, the Court would have to
acknowledge that extending the remedy of
exclusion to all the evidence seized following a
knock-and-announce violation would mean
revising the requirement of causation that limits
our discretion in applying the exclusionary rule.
Id. at 604 (Kennedy, J., concurring).
Similarly, in United States v. Navarro-Diaz, 420 F.3d
581 (6th Cir. 2005), the court expressed the following view:
The Supreme Court‘s language in Lopez-
Mendoza—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‖—when taken out of
context, could be read to suggest that random,
widespread detentions and questioning of
suspected aliens would not implicate Fourth
Amendment rights. 468 U.S. at 1039, 104 S.
Ct. 3479. We do not believe, however, that
Lopez-Mendoza sanctions such a result. The
Supreme Court qualified its holding when it
stated in the last paragraph of Lopez-Mendoza
that ―we do not deal here with egregious
violations of Fourth Amendment or other
liberties that might transgress notions of
fundamental fairness.‖
Navarro-Diaz, 420 F.3d at 587.
Oliva-Ramos alleges that the ICE officers‘ conduct
here is both egregious and widespread. If true, the allegations
here may well illustrate the precise situation that was
anticipated in Lopez-Mendoza. Clearly, a single Fourth
Amendment violation is not sufficient to extend the
exclusionary rule to civil removal proceedings unless it is also
egregious. Not every illegal entry into a home will rise to that
35
level. But Oliva-Ramos has alleged much more than the
forcible warrantless entry into a single home.
It is uncontested that Oliva-Ramos was taken into custody
during the course of a pre-dawn raid. Such raids of homes
have traditionally been viewed with particular opprobrium
unless the timing is justified by the particular circumstances.
See Fed. R. Crim. P. 41(e)(2)(A) (―The warrant must
command the officer to: (ii) execute the warrant during
daytime [defined as ―the hours between 6:00 a.m. and 10:00
p.m. . . . ,‖ Fed R. Crim. P. 41(a)(2)(B)], unless the judge for
good cause expressly authorizes execution at another time . . .
;‖ see also United States ex rel. Boyance v. Myers, 398 F.2d
896, 897 (3d Cir. 1968) (―The time of a police search of an
occupied family home may be a significant factor in
determining whether, in a Fourth Amendment sense, the
search is ‗unreasonable.‘‖).
Oliva-Ramos has attempted to introduce evidence of a
consistent pattern of conducting these raids during
unreasonable hours, such as the 4:30 a.m. raid that occurred
here. Oliva-Ramos is trying to support these allegations by
resorting to documents that were not available when he had
his hearing before the IJ, but were presented to the BIA for its
consideration on appeal. This evidence included ICE
Memoranda regarding the Fugitive Operations Teams and
ICE arrest statistics. It appears from this record the
documents were not available for the IJ to consider initially
because they were produced only after Oliva-Ramos litigated
their disclosure under the Freedom of Information Act. In his
FOIA request dated October 4, 2007, Oliva-Ramos requested
―ICE policies, directives, and memoranda regarding collateral
arrests made at the suspected locations of individuals targeted
by ICE.‖ Id. The Government refused to release these
documents, citing FOIA exemptions. Id. As Oliva-Ramos
notes, the Government‘s withholding of these documents
impeded Oliva-Ramos‘s ability to present evidence before the
IJ in the first instance prior to his April 23, 2008 suppression
hearing.
Oliva-Ramos argues that ICE conceded that it has a
policy of rounding up everyone in a home, without any
particularized suspicion, in order to question all of the
36
occupants about their immigration status.26 The BIA‘s refusal
to even consider that evidence was contrary to Lopez-
Mendoza. By turning a blind eye to that evidence, the BIA
prevented Oliva-Ramos from potentially demonstrating that
the circumstances of his seizure fit within the narrow
exception left open in Lopez-Mendoza.27
26
In Argueta, the petitioners alleged that the unconstitutional
pre-dawn raids continued ―until the agents‘ van was filled.‖
643 F.3d at 65.
27
The Government acknowledges that Oliva-Ramos was
detained as the result of ―Operation Return to Sender.‖ In
May 2006, the Government launched this nationwide
program to capture fugitive aliens using dragnet-like home
and office raids. Argueta, 643 F.3d at 63-67. In a 2009
report prepared under the guidance of an advisory panel of
law enforcement professionals, a Cardozo law school clinic
issued a public study purporting to document ―a suspiciously
uniform pattern of constitutional violations during ICE
[Immigration and Customs Enforcement] home raids. Bess
Chiu et al., Cardozo Immigration Justice Clinic, Constitution
on ICE: A Report on Immigration Home Raid Operations 9
(2009). Available at
http://www.cardozo.yu.edu/uploadedFiles/Cardozo/Profiles/i
mmigrationlaw-741/IJC_ICE-Home-Raid-
Report%20Updated.pdf. The report attempted to detail
―[t]actical pre-dawn or nighttime home entries, conducted by
heavily armed seven member teams, with residents who often
do not speak English . . . .‖ Id. at 29. Individuals purportedly
involved in one such raid alleged routine constitutional
violations by government officials, which led one
commentator to state: ―While any law enforcement entry into
the home is likely to seem threatening to residents, the
accounts of ICE enforcement operations indicate that the
agency uses excessive displays of force. . . . Evidence now
abounds that officers frequently enter without consent—that
they threaten or intimidate residents, make misrepresentations
of authority, push their way through open doors, or simply
enter without waiting to speak to a resident at all. With no
valid warrants, no exigent circumstances, and often no valid
consent, one major plank of ICE‘s interior enforcement
efforts depends on routine violations of a core constitutional
37
In attempting to supplement the record and have the
BIA remand to the IJ for additional proceedings where the
newly obtained records could be considered, Oliva-Ramos is
merely asking for an opportunity to present evidence that the
raid leading to his apprehension falls within the narrow
exception recognized in Lopez-Mendoza, and that it was
therefore error to categorically refuse the remedy of
suppression without affording him an opportunity to establish
that the Government was engaging in the kind of egregious or
widespread abuses that justifies suppression under Lopez-
Mendoza. We do not suggest that these allegations are
established fact, nor that they would necessarily satisfy Oliva-
Ramos‘s burden under Lopez-Mendoza even if proven. That
is for the IJ and BIA to determine in the first instance.
However, these allegations are woven into the fabric of the
central issue before us, and cannot properly be resolved
absent the materials Oliva-Ramos sought to present in the
removal proceedings.
We believe the BIA erred in not allowing Oliva-
Ramos an opportunity to support his Fourth Amendment
claim. We take no position, however, on the underlying
question of whether the circumstances here are so egregious
or widespread as to justify a suppression order. We merely
conclude that Oliva-Ramos must be permitted to present
evidence to support his contention that the Government‘s
conduct here falls within the exception the Supreme Court
was careful to allow in Lopez-Mendoza.
D. Regulatory Violations
1. 8 C.F.R. § 287.8(f)(2) (consent to enter)
As we summarized above, the IJ and BIA dismissed
Oliva-Ramos‘s claims because they concluded that Clara
consented to entry and that Oliva-Ramos could not, therefore,
establish any Fourth Amendment violation. However, we
guarantee.‖ Nathan Treadwell, Fugitive Operations & the
Fourth Amendment: Representing Immigrants Arrested in
Warrantless Home Raids, 89 N.C. L. Rev. 507, 516-18 (2011)
(footnotes omitted).
38
agree that the BIA failed to apply the proper Fourth
Amendment inquiry.
The BIA considered the question in the context of 8
C.F.R. § 287.8(f)(2) which provides:
An immigration officer may not enter into the
non-public areas of a business, a residence
including the curtilage of such residence, or a
farm or other outdoor agricultural operation,
except as provided in section 287(a)(3) of the
Act, for the purpose of questioning the
occupants or employees concerning their right
to be or remain in the United States unless the
officer has either a warrant or the consent of the
owner or other person in control of the site to be
inspected. When consent to enter is given, the
immigration officer must note on the officer‘s
report that consent was given and, if possible,
by whom consent was given. If the immigration
officer is denied access to conduct a site
inspection, a warrant may be obtained.
In affirming the IJ‘s decision that no Fourth
Amendment violation occurred because the entry was
consensual, the BIA stated that ―we have considered the
respondent‘s asserted bases for contending that the consent to
the officers‘ entry was coerced (or otherwise invalid) but we
are not persuaded by them.‖ ―Although the BIA ‗is not
required to ‗write an exegesis‘ on every contention,‘ the
‗analysis‘ offered here is simply inadequate to afford the
meaningful review that both‖ Oliva-Ramos and the
Government deserve. Zubeda v. Ashcroft, 333 F.3d 463, 477
(3d Cir. 2003) (quoting Mansour v. INS, 230 F.3d 902, 908
(7th Cir. 2000)).
The Supreme Court has made clear that ―[c]onsent
must be given voluntarily.‖ Stabile, 633 F.3d at 230 (citing
Bumper v. North Carolina, 391 U.S. 543, 548 (1968)). Thus,
the Court requires a careful examination of the totality of the
circumstances surrounding how that consent was obtained.
See United States v. Drayton, 536 U.S. 194, 206-07 (2002).
The appropriate inquiry into the voluntariness of a purported
39
consent would include, without limitation: ―the age,
education, and intelligence of the subject; whether the subject
was advised of his or her constitutional rights; the length of
the encounter; the repetition or duration of the questioning;
and the use of physical punishment.‖ United States v. Price,
558 F.3d 270, 278 (3d Cir. 2009). We have also ―identified
as relevant ‗the setting in which the consent was obtained
[and] the parties‘ verbal and non-verbal actions.‘‖ Id. In
addition, the number of officers and displays of force are
important factors. See United States v. Kim, 27 F.3d 947, 954
(3d Cir. 1994). This kind of particularized scrutiny was not
applied to the evidence here because it was assumed that the
Fourth Amendment remedy of suppression did not apply.
Rather, the Form I-213 that was relied on to establish a
consensual entry indicated that ―[c]onsent to enter the
premises was provided by Clara Oliva.‖ That appears to have
largely been the beginning and the end of the inquiry. As
noted above, however, Officer Belluardo did not recall the
specifics of the entry; she merely testified based upon what
she said was normal procedure.
The BIA, therefore, erred in finding valid consent
without analyzing the totality of the circumstances under the
Fourth Amendment. Again, we take no position on what the
outcome of that inquiry should be here. We only hold that the
inquiry that appears on this record is not sufficient given the
nature of Oliva-Ramos‘s claims.
2. 8 C.F.R. §§ 287.8(b)(1) (seizure)
The BIA correctly noted that 8 U.S.C. 1357(a)(1)
permits an ICE agent, without a warrant, to ―interrogate 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). We
have made clear, however, that the ―authority under Section
1357(a)(1) to interrogate a person believed to be an alien is
limited by the restrictions of the fourth amendment.‖ Babula
v. Immigration & Naturalization Service, 665 F.2d 293, 295
(3d Cir. 1981) (citation omitted). As we noted in Babula,
―[s]ince the same standards govern the validity of a seizure
under section 1357(a)(1) as under the fourth amendment,
questioning that is permissible under the fourth amendment is
also permissible under section 1357(a)(1).‖ Id.
40
8 C.F.R. § 287.8 was promulgated pursuant to 8
U.S.C. § 1357(a)(1). This regulation incorporates the test that
―a person has been ‗seized‘ within the meaning of the Fourth
Amendment only if, in view of all of the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.‖ United States v.
Mendenhall, 446 U.S. 544, 554 (1980). Specifically, the
regulation states: ―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.‖ 8 C.F.R. §
287.8(b)(1) (emphasis added).
In order to conduct a proper analysis under the Fourth
Amendment, the BIA should have considered among the non-
exclusive list of relevant factors, the circumstances that the
Supreme Court described in Mendenhall. The Mendenhall
Court explained that ―[e]xamples of circumstances that might
indicate a seizure, even where the person did not attempt to
leave, would be the threatening presence of several officers,
the display of a weapon by an officer, some physical touching
of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer‘s request
might be compelled.‖ Mendenhall, 446 U.S. at 554.
Although we do not decide whether those factors in
fact existed, we discuss by way of example some of the
considerations that could have influenced the Mendenhall
analysis. Here, armed ICE officers entered Oliva-Ramos‘s
room shining flashlights that woke him up at 4:30 in the
morning. After he got up, he was told to go to the living
room where officers blocked several exits and detained his
family members. The record also indicates at least six armed
uniformed ICE officers were present and that certain family
members were told to sit down when they tried to stand.
In concluding that Oliva-Ramos was not improperly
seized, the BIA relied exclusively on Oliva-Ramos‘s
testimony during the suppression hearing that he had no
intention of leaving the premises because he ―didn‘t commit
any crime.‖ Yet the question of intent to leave is less relevant
under the Fourth Amendment than whether he felt free to
leave. See Brendlin v. California, 551 U.S. 249, 255 (2007)
41
(―[T]he Court adopted Justice Stewart‘s touchstone
[Mendenhall test], but added that when a person ‗has no
desire to leave‘ for reasons unrelated to the police presence,
the ‗coercive effect of the encounter‘ can be measured better
by asking whether ‗a reasonable person would feel free to
decline the officers‘ requests or otherwise terminate the
encounter.‘‖) (internal citations omitted).
Mendenhall makes clear that ―circumstances that
might indicate a seizure‖ may exist ―even where the person
did not attempt to leave . . . .‖ Mendenhall, 446 U.S. at 554.
Here, while Oliva-Ramos may not have intended or attempted
to leave his apartment at 4:30 a.m., the BIA must also inquire
into whether he felt free to leave. (Question: ―What would
have happened if you‘d asked the officers to leave?;‖
Response ―I couldn‘t tell the officers to leave because it‘s the
law and I didn‘t have anything to tell them.‖). The BIA,
therefore, erred in rejecting Oliva-Ramos‘s claim of a
regulatory violation without an adequate inquiry into whether
Oliva-Ramos was seized before proceeding to find reasonable
suspicion to detain him.
We caution, however, that nothing in this opinion is
intended to undermine the ability of immigration officers to
ask questions of a person to obtain his or her immigration
status so long as the inquiry is consistent with the limitations
imposed by the Fourth Amendment. See Florida v. Bostick,
501 U.S. 429, 434-35 (1991). Bostick makes clear that ―even
when officers have no basis for suspecting a particular
individual, they may generally ask questions of that
individual, ask to examine the individual‘s identification, and
request consent to search . . . as long as the police do not
convey a message that compliance with their requests is
required.‖ Id. (internal citations omitted). ―So long as a
reasonable person would feel free ‗to disregard the police and
go about his business,‘ the encounter is consensual and no
reasonable suspicion is required.‖ Id. at 434 (internal citation
omitted). But the encounter ―loses its consensual nature‖ and
a seizure has occurred ―when the officer, by means of
physical force or show of authority, has in some way
restrained the liberty of a citizen . . . .‖ Id.
42
Our discussion of these principles is not intended to
resolve the merits of Oliva-Ramos‘s Fourth Amendment
claims. Rather, we simply explain that the inquiry undertaken
by the BIA was wrongly guided by its assumption that
suppression is not permitted in removal proceedings. Cf.
Babula, 665 F.2d at 296 (finding reasonable suspicion in the
context of an automobile stop).
3. 8 C.F.R. § 287.8(c)(2)(i) (warrantless arrest)
We must also consider whether the BIA properly
construed 8 C.F.R. § 287.8(c)(2)(i), which states that ―[a]n
arrest shall be made only when the designated immigration
officer has reason to believe that the person to be arrested has
committed an offense against the United States or is an alien
illegally in the United States.‖ 8 C.F.R. § 287.8 (c)(2)(i).
Section 287.8(c)(2)(i) emanates from INA § 287(a)(2), 8
U.S.C. § 1357(a)(2). We held in Babula that ―under section
1357(a)(2) . . . ‗arrest‘ means an arrest upon probable cause,
and not simply a detention for purposes of interrogation.‖
665 F.2d at 298.
In Tejeda-Mata v. Immigration & Naturalization
Service, 626 F.2d 721 (9th Cir. 1980), a case upon which the
BIA relied in finding that Oliva-Ramos posed a flight risk, the
Court of Appeals for the Ninth Circuit held that, in addition to
the background circumstances of the interrogation, an
uncoerced admission that a petitioner ―came from Mexico . . .
constitute[d] a clearly sufficient basis for his warrantless
arrest.‖ Tejeda-Mata, 626 F.2d at 725. There, Tejeda-Mata
drove through a parking lot in Washington when an officer
―recognized an alien whom he had previously arrested and
who had been granted voluntary departure.‖ Id. at 723. After
the officer parked his car to block Tejeda-Mata, he jumped
out of the car and asked the officer what was happening. The
officer asked where he was from and Tejeda-Mata responded
that he came from Mexico.
Here, it should be clear from what we have thus far
explained that we cannot conclude that any statements related
to Oliva-Ramos being a flight risk were uncoerced, without
an examination by the BIA or the IJ in the first instance into
whether Oliva-Ramos was improperly seized during the home
43
raid and subsequent arrest. See Wong Sun v. United States,
371 U.S. 471, 484 (1963) (stating that if evidence is obtained
as a result of an unlawful seizure, it is to be excluded as the
―‗fruits‘ of the [officer‘s] unlawful action.‖). The BIA relied
solely on a statement contained in the Form I-213 that Oliva-
Ramos posed a flight risk, and thus § 287.8(c)(2)(i) permitted
a warrantless arrest. Whether Oliva-Ramos‘s warrantless
arrest was valid depends upon whether he was illegally
seized. Thus, we will vacate the BIA‘s ruling as to regulatory
violation 8 C.F.R. § 287.8(c)(2)(i) and remand for further
consideration in light of the potential illegal seizure of Oliva-
Ramos.
4. 8 C.F.R. § 287.8(c)(2)(vii) (coerced statements)
8 C.F.R. § 287.8(c)(2)(vii) prohibits ―[t]he use of
threats, coercion, or physical abuse by the designated
immigration officer to induce a suspect to waive his or her
rights or to make a statement . . . .‖ 8 C.F.R. §
287.8(c)(2)(vii). The BIA combined its analysis of this
regulatory provision with the discussion of an improper
seizure under 8 C.F.R. § 287.8(b)(1). Based on our
discussion of the circumstances surrounding the potential
improper seizure and coercion, we will remand for further
consideration of 8 C.F.R. § 287.8(c)(2)(vii) and any potential
violation of the Due Process Clause of the Fifth Amendment.
5. 8 C.F.R. § 292.5(b) (right to counsel)
In addition to the regulatory violations discussed
above, Oliva-Ramos also claims that ICE agents violated 8
C.F.R. § 292.5(b). That regulation provides:
Whenever an examination is provided for in this
chapter, the person involved shall have the right
to be represented by an attorney or
representative who shall be permitted to
examine or cross-examine such person and
witnesses, to introduce evidence, to make
objections which shall be stated succinctly and
entered on the record, and to submit briefs.
Provided, that nothing in this paragraph shall be
construed to provide any applicant for
admission in either primary or secondary
44
inspection the right to representation, unless the
applicant for admission has become the focus of
a criminal investigation and has been taken into
custody.
8 C.F.R. § 292.5. The BIA rejected Oliva-Ramos‘s challenge
to this provision, concluding that the Government is only
required to inform an alien of his right to legal representation
after he is placed into formal proceedings. See Samayoa-
Martinez v. Holder, 558 F.3d 897, 901-02 (9th Cir. 2009)).
We agree with the Board‘s interpretation of § 292.5. Formal
removal proceedings begin only after the Government has
filed a Notice to Appear in immigration court. See 8 C.F.R. §
1239.1(a) (―Every removal proceeding conducted under
section 240 of the Act (8 U.S.C. § 1229a) to determine the
deportability or inadmissibility of an alien is commenced by
the filing of a notice to appear with the immigration court.‖).
Here, although the Government issued its Notice to Appear
for Oliva-Ramos on March 26, 2007, the notice was not filed
with the Immigration Court—thus initiating formal
proceedings—until March 29, 2007. That Notice to Appear
also provided a statement informing Oliva-Ramos of his right
to representation. Thus we will affirm the BIA as to its ruling
on § 292.5 because we conclude that Oliva-Ramos was
notified of his right to counsel before he was placed in formal
proceedings.28
Conclusion
For the reasons discussed above, we will vacate in part
and will affirm in part, the BIA‘s August 31, 2010 order, and
we will remand to the BIA with instructions that it grant the
motion to reopen the proceedings and that it conduct further
28
We need not consider additional regulatory violations
reached by the BIA as Oliva-Ramos has not appealed the
BIA‘s decision as to 8 C.F.R. § 287.3 (failure to provide
―timely‖ advice of rights), 8 C.F.R. § 287.3(a) (examination
by same officer who arrested respondent), and 8 C.F.R. §
287.8(d)(1) (conditions of prolonged detention in a van).
45
proceedings (which may include a remand to the IJ)
consistent with this opinion.29
29
The panel notes that Ms. Nikki Reisch argued on behalf of
Petitioner as an eligible law student pursuant to Local
Appellate Rule 46.3. The Court commends her exceptional
oral advocacy and expresses its gratitude to her and to the
New York University School of Law and the Washington
Square Legal Services, Inc. for the pro bono representation
provided for the Petitioner in this matter.
46