Luis Sanchez v. William P. Barr , 919 F.3d 1193 ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS ENRIQUE SANCHEZ, AKA No. 14-71768
Enrique Cruz Sanchez, AKA Luis
Llamas Sanchez, AKA Luis Charles Agency No.
Sanchez, AKA Enrique Sanchez A076-359-028
Cruz, AKA Luis Enrique Sanchez
Llamas,
Petitioner, ORDER
v.
WILLIAM P. BARR, Attorney General,
Respondent.
Filed April 1, 2019
Before: Kim McLane Wardlaw, Richard A. Paez,
and Morgan Christen, Circuit Judges.
Order;
Concurrence in Order by Judge Paez;
Statement Respecting Order by Judge O’Scannlain;
2 SANCHEZ V. BARR
SUMMARY *
Immigration
The panel filed an order denying rehearing en banc in a
case in which the panel held that Luis Sanchez may be
entitled to termination of removal proceedings without
prejudice as the result of having made a prima facie showing
of an egregious violation of 8 C.F.R. § 287.8(b)(2) (to detain
a person for questioning, an immigration officer must have
reasonable suspicion the person is, or is attempting to be,
engaged in an offense against the United States, or is an alien
illegally in the country), and remanded for the agency to
afford the Government an opportunity to rebut Sanchez’s
prima facie case.
Concurring in the denial of rehearing en banc, Judge
Paez, joined by Judge Wardlaw, wrote to reiterate points in
response to Judge O’Scannlain’s separate statement. Judge
Paez wrote that Judge O’Scannlain’s statement attempted to
obscure the core issue—the egregious regulatory violation—
with the smokescreen of the exclusionary rule, and wrote
that Judge O’Scannlain’s opinion rested on a
mischaracterization of decades of precedent.
Judge Paez wrote that, contrary to Judge O’Scannlain’s
assertions, the panel did not pull the remedy of termination
with prejudice out of thin air; rather, the remedy was based
on this court’s precedent and consistent with the Supreme
Court’s long-standing concern for regulatory violations that
implicate fundamental rights. Responding to Judge
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANCHEZ V. BARR 3
O’Scannlain’s insistence that the court has no authority to
address an egregious violation of this regulation, Judge Paez
wrote that the regulation implicates constitutional rights,
thereby triggering the court’s duty to ensure agency
compliance. Judge Paez also responded to Judge
O’Scannlain’s opinion that the remedy would do nothing but
delay Sanchez’s “inevitable removal,” stating that this view
misses the essence of Sanchez’s claim and the harm he
sought to remedy. In this regard, Judge Paez wrote that more
was at stake than the outcome of a single case in that the
remedy recognized the tainted nature of the initial detention
and, one hopes, would encourage agency compliance.
Finally, Judge Paez wrote that Judge O’Scannlain’s parade
of horribles regarding the consequences of the panel’s
remedy were unsubstantiated and, at best, hypothetical.
Respecting the denial of rehearing en banc, Judge
O’Scannlain, joined by Judges Callahan, Bea, Ikuta,
Bennett, and R. Nelson, wrote that the court should have
reheard this case en banc to correct the panel’s errant
decision, a very unfortunate precedent with troublesome
consequences for the court’s immigration jurisprudence.
Judge O’Scannlain observed that the government in this case
possessed independent and (constitutionally firm) evidence
establishing Sanchez’s unlawful status, and, as a result,
suppression of the evidence obtained by the arrest would do
Sanchez no good. Judge O’Scannlain wrote that, eager to
give Sanchez some relief, the panel stretched this court’s
case law beyond recognition by awarding termination
without prejudice instead of an appropriate Fourth
Amendment remedy—suppression of the unlawfully
obtained evidence.
Judge O’Scannlain wrote that the panel’s decision
(1) defied the Supreme Court’s decision in INS v. Lopez-
4 SANCHEZ V. BARR
Mendoza, 468 U.S. 1032 (1984), (2) ignored basic Fourth
Amendment principles by ordering a more-intrusive result
than the Amendment authorizes, (3) fashioned a remedy to
enforce agency regulations without a sound legal basis for
such an imposition, (4) showed a profound
misunderstanding of the difference between substantive and
procedural rights and their appropriate remedies, (5) cited as
authority a handful of inapposite out-of-circuit precedents,
and (6) imposed serious practical costs on the administration
of immigration proceedings. Judge O’Scannlain concluded
that, worst of all, the opinion’s imposition of an
extraordinary remedy wastes everyone’s time, for it does
nothing but delay the petitioner’s inevitable removal.
ORDER
A judge of the court sua sponte requested a vote on
whether to rehear this case en banc. A vote was taken, and
the matter failed to receive a majority of the votes of the
nonrecused active judges in favor of en banc consideration.
See Fed. R. App. P. 35(f). Rehearing en banc is DENIED.
PAEZ, Circuit Judge, with whom WARDLAW, Circuit
Judge joins, concurring in denial of rehearing en banc:
This case began when the United States Coast Guard
seized Luis Sanchez solely on the basis of his race. The
critical question before the panel was what, if any, remedy
existed for Sanchez. We thus confronted a clear case of
racial profiling—an egregious violation of the Department
of Homeland Security’s own internal regulation to deter
unlawful searches and seizures, 8 C.F.R. § 287.8(b)(2). In
SANCHEZ V. BARR 5
line with the Second Circuit, we held that an egregious
violation of § 287.8(b)(2) could warrant termination of
removal proceedings without prejudice and we remanded to
the agency to afford the Government an opportunity to rebut
Sanchez’s prima facie case. Sanchez v. Sessions, 904 F.3d
643, 653–54 (9th Cir. 2018) (citing Rajah v. Mukasey,
544 F.3d 427, 446–47 (2d Cir. 2008)). Nothing more,
nothing less. This limited but tailored remedy ensures that
immigration officers are held accountable for violating rules
that are meant to “safeguard” individuals’ fundamental
rights. INS v. Lopez-Mendoza, 468 U.S. 1032, 1044 (1984).
Even the Government agreed that remand, not rehearing en
banc, was the appropriate next step for Sanchez’s case.
Judge O’Scannlain’s separate statement attempts to
obscure the core issue—the egregious regulatory violation—
with the smokescreen of the exclusionary rule. 1 His quarrel
with our opinion, however, rests on a mischaracterization of
decades of precedent that this court has wisely sidestepped.
I therefore concur in the court’s denial of rehearing en banc
and respectfully but firmly reiterate a few points in response
to errors in Judge O’Scannlain’s statement.
1
Judge O’Scannlain’s reliance on Lopez-Mendoza is particularly
telling as it illustrates a misunderstanding of the case law. In holding
that the Fourth Amendment does not generally apply to civil immigration
proceedings, the Supreme Court relied in part on the fact that the agency
“has developed rules restricting stop, interrogation, and arrest practices.”
468 U.S. at 1044–45. Moreover, the Court stated that it was not
addressing a regulatory violation because “no challenge [wa]s raised
here to the [agency]’s own internal regulations.” Id. at 1050. Thus,
Lopez-Mendoza explicitly left open the question of how courts should
address regulatory violations in this context.
6 SANCHEZ V. BARR
***
As a preliminary matter, there is no dispute that Sanchez
made a prima facie showing of a violation of § 287.8(b)(2):
he was detained solely on the basis of his Latino appearance
and hence, without “reasonable suspicion,” as required by
the regulation. 2 As detailed in our opinion, the Coast Guard
detained Sanchez and his three companions, including a 14-
month-old child, after they called 911 for assistance when
they were stranded on a fishing trip from Channel Islands
Harbor. Without reasonable suspicion, the Coast Guard
contacted Customs and Border Protection to report “the
possibility of 4 undocumented worker[] aliens,” which
ultimately led to Sanchez’s arrest, interrogation and removal
proceedings. Looking to past cases involving regulatory
violations, we joined the Second Circuit to hold that
petitioners like Sanchez may be entitled to termination of
their removal proceedings without prejudice for egregious
regulatory violations. 3 Sanchez, 904 F.3d at 653 (citing
2
The regulation provides: “[i]f the immigration officer has a
reasonable suspicion, based on specific articulable facts, that the person
being questioned is, or is attempting to be, engaged in an offense against
the United States or is an alien illegally in the United States, the
immigration officer may briefly detain the person for questioning.”
8 C.F.R. § 287.8(b)(2).
3
Judge O’Scannlain’s attempt to sidestep the holding of Rajah is
unconvincing. The plain language of Rajah identifies termination as an
appropriate remedy for “pre-hearing,” “conscience-shocking” regulatory
violations. 544 F.3d at 447. Rajah therefore expressly allows for
termination in Sanchez’s case because racial profiling is “conscience-
shocking” and egregious. Sanchez, 904 F.3d at 656 (citing, inter alia,
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989) (Scalia,
J., concurring)). Moreover, subsequent cases in the Second Circuit have
faithfully applied the Rajah framework. Maldonado v. Holder, 763 F.3d
155, 163 (2d Cir. 2014). The fact that the Second Circuit has identified
SANCHEZ V. BARR 7
United States v. Calderon-Medina, 591 F.2d 529 (9th Cir.
1979); Rajah, 544 F.3d at 446–47).
Contrary to Judge O’Scannlain’s assertions, we did not
pull such a remedy out of thin air. As we mapped out, see
Sanchez, 904 F.3d at 653–55, the theory behind termination
without prejudice can be traced back to our 1979 decision in
Calderon-Medina, which established that regulatory
violations could “invalidate a deportation proceeding” if
“the regulation serves a purpose of benefit” to the immigrant
and “the violation prejudiced interests” which were
protected by the regulation. 4 591 F.2d at 531. The remedy
turns on when the violation occurred and to what degree,
not—as Judge O’Scannlain claims—what part of the
Constitution is implicated. See Sanchez, 904 F.3d at 655
(concluding that for the rare subset of cases involving pre-
hearing regulatory violations, “[o]nly full termination of the
proceedings without prejudice can ‘effectively cure[] any
procedural defect by putting the parties into the position they
would have been had no procedural error taken place.’”
(citation omitted)). We need not look further than our
discussion in Calderon-Medina: “the basis for such reversals
is not . . . the Due Process Clause, but rather a rule of
administrative law.” 591 F.2d at 531 (citing Mendez v. INS,
the remedy but not yet applied it illustrates, not the non-existence of the
remedy, but rather, the difficulty that petitioners face in making a prima
facie showing of an egregious violation.
4
This remedy has since been endorsed, in one form or another, by
several of our sister circuits, as well as the Board of Immigration
Appeals. See, e.g., Montilla v. INS, 926 F.2d 162, 166–68 (2d Cir. 1991);
Leslie v. Attorney Gen., 611 F.3d 171, 180 (3d Cir. 2010); Castaneda-
Delgado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975); Yui Fong Cheung
v. INS, 418 F.2d 460, 465 (D.C. Cir. 1969); Matter of Garcia-Flores,
17 I. & N. Dec. 325, 328–29 (BIA 1980).
8 SANCHEZ V. BARR
563 F.2d 956, 959 (9th Cir. 1977)). Thus, the core inquiry
is whether the regulation serves a “purpose of benefit” to the
petitioner. Id.This approach is consistent with the Supreme Court’s
long-standing concern for regulatory violations that
implicate fundamental rights. See Bridges v. Wixon,
326 U.S. 135 (1945); United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260 (1954); see also United States v.
Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014). And this
is where the Fourth Amendment comes into play. Because
§ 287.8 (b)(2) reflects the Fourth Amendment guarantee
against unreasonable searches and seizures, the panel
opinion concludes that the regulation was promulgated for
the benefit of immigrant petitioners. Sanchez, 904 F.3d
at 651–52. As Judge O’Scannlain acknowledges, our
authority to compel an agency to follow its own regulations
must have its source in the Constitution itself or some federal
statute. Op. Respecting Denial at 18 (citing United States v.
Caceres, 440 U.S. 741, 749–55 (1979)). The upshot of
Caceres is that “[a] court’s duty to enforce an agency
regulation is most evident when compliance with the
regulation is mandated by the Constitution or federal law.”
Id. at 749. The regulation at issue here no doubt implicates
constitutional rights, thereby triggering our duty to ensure
agency compliance.
Yet, Judge O’Scannlain insists that we have no authority
to address the Government’s egregious violation of
§ 287.8(b)(2) and opines that the remedy we ordered would
do nothing but delay Sanchez’s “inevitable removal.” This
completely misses the essence of Sanchez’s claim and the
harm he seeks to remedy. There is more at stake than the
outcome of a single case. See Montilla, 926 F.2d at 170.
“Careless observance by an agency of its own administrative
SANCHEZ V. BARR 9
processes weakens its effectiveness in the eyes of the public
because it exposes the possibility of favoritism and of
inconsistent application of the law.” Id. at 169 (citing
McKart v. United States, 395 U.S. 185, 195 (1969)). In the
context of this case, slap-on-the-wrist repudiations that
permit the agency to pick up where it left off despite racial
profiling do little to safeguard individuals in this country
from immigration enforcement practices that “teeter[] on the
verge of ‘the ugly abyss of racism.’” Maldonado, 763 F.3d
at 174 (Lynch, J., dissenting) (quoting Korematsu v. United
States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting)).
In such circumstances, termination without prejudice may be
appropriate because it forces the agency to begin anew—a
remedy that properly recognizes the tainted nature of the
initial detention and, one hopes, encourages agency
compliance in the future.
As a final point, Judge O’Scannlain trots out a parade of
horribles that are unsubstantiated and, at best, hypothetical.
As the opinion emphasized, termination without prejudice is
a remedy “reserved for truly egregious cases” of
immigration enforcement. Sanchez, 904 F.3d at 655. Any
fears that this remedy will spur crafty lawyers across the
country to disrupt removal proceedings are belied by the fact
that the Second Circuit recognized this very remedy in 2008
and there have been no such harebrained schemes since.
***
The reality of immigration proceedings—with no
established right to appointed counsel, no right to discovery,
or any other host of rights implicated in other proceedings—
is that individuals would be hard-pressed to reach the stage
that Sanchez has in proving a prima facie case of an
egregious regulatory violation. Because he has met his
initial burden of showing a racially motivated detention, we
10 SANCHEZ V. BARR
ordered a narrowly tailored remedy: Sanchez’s removal
proceedings would be terminated, but only if the
Government cannot meet its burden of rebutting Sanchez’s
prima facie showing on remand. Given the procedural
posture of this case, and all the reasons outlined above and
in our opinion, the court wisely denied rehearing en banc.
O’SCANNLAIN, Circuit Judge, ** with whom
CALLAHAN, BEA, IKUTA, BENNETT, and R. NELSON,
Circuit Judges, join, respecting the denial of rehearing en
banc:
In this deportation proceeding, which commenced over
eight years ago, our court’s opinion concedes that admissible
evidence establishes Mexican citizen Luis Enrique
Sanchez’s removability. Current immigration law therefore
required the three-judge panel to allow the deportation order
to take effect. Unsatisfied with such prospect, the panel
holds instead that Sanchez’s entire removal proceeding now
must be terminated because he was detained without
reasonable suspicion—a violation of the Fourth
Amendment.
Such an absurd result contravenes basic Fourth
Amendment principles, defies Supreme Court precedent,
and lacks any basis in our case law (or that of any other
circuit). Worse, the panel disguises the Fourth Amendment
**
As a judge of this court in senior status, I no longer have the power
to vote on calls for rehearing cases en banc or formally to join a dissent
from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App.
P. 35(a). Following our court’s general orders, however, I may
participate in discussions of en banc proceedings. See Ninth Circuit
General Order 5.5(a).
SANCHEZ V. BARR 11
harm as a “regulatory violation” to work a simple and
obvious end-run around it. At bottom, the panel fails to grasp
that Fourth Amendment wrongs warrant Fourth Amendment
remedies—nothing less, but nothing more. This case has
languished for almost a decade, and now the government is
reduced to restarting deportation proceedings, using the
same evidence to achieve the same outcome that the
Immigration Judge (“IJ”) ordered in 2011. Our court should
have reheard this case en banc to correct the panel’s errant
decision, a very unfortunate precedent with troublesome
consequences for our immigration jurisprudence.
I
The facts are straightforward. 1 Luis Enrique Sanchez is
a citizen of Mexico who entered the United States without
inspection in 1988. In 2004, Sanchez applied for and
received “Family Unity Benefits” from the United States
Citizenship and Immigration Service (“USCIS”), which
temporarily authorized him to live and to work in the United
States. USCIS later denied Sanchez’s request for an
extension of these benefits in 2008, and at that point he no
longer enjoyed lawful status to remain in the United States.
In February 2010, Sanchez and three others were
marooned off the coast of California when their fishing
boat’s engine lost power. The Coast Guard towed their boat
into port, demanded identification documents, and detained
them for two hours until Customs and Border Protection
(“CBP”) officers arrived. The CBP officers took Sanchez to
a CBP facility, interrogated and strip-searched him, and then
released him. The officers prepared a Form I-213 (Record of
1
The facts in this Section are drawn from the opinion. See Sanchez
v. Sessions, 904 F.3d 643, 646–49 (9th Cir. 2018).
12 SANCHEZ V. BARR
Deportable/Inadmissible Alien), which included Sanchez’s
express admission to them that he had entered the United
States without inspection and was undocumented.
In November 2010, the Department of Homeland
Security (“DHS”) issued a Notice to Appear and charged
Sanchez with being removable. To prove Sanchez’s
removability, the government relied on both the Form I-213
prepared by the CBP officers and on Sanchez’s prior
application for Family Unity Benefits. Sanchez sought to
have the Form I-213 suppressed and to have his removal
proceedings terminated. He argued that his detention by
CBP officers was based solely on race in contravention of
the Fourth Amendment and 8 C.F.R. § 287.8(b), which
requires arresting officers to possess a “reasonable
suspicion” of the person’s unlawful presence. 2
The IJ denied the motion and ordered Sanchez removed.
In 2014, the Board of Immigration Appeals (“BIA”)
dismissed Sanchez’s appeal, leaving the deportation order in
place. It concluded that, regardless of whether the Form
I-213 should have been suppressed, the government could
use “independent evidence . . . to establish his nationality
and identity.” See Sanchez v. Sessions, 904 F.3d 643, 648
2
The Fourth Amendment provides: “The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV.
The relevant regulation provides: “If the immigration officer has a
reasonable suspicion, based on specific articulable facts, that the person
being questioned is, or is attempting to be, engaged in an offense against
the United States or is an alien illegally in the United States, the
immigration officer may briefly detain the person for questioning.”
8 C.F.R. § 287.8(b)(2).
SANCHEZ V. BARR 13
(9th Cir. 2018). Sanchez timely petitioned for review in our
court in 2014. 3
II
Sanchez contends specifically that the Coast Guard
detained him based on his Latino appearance in violation of
the Fourth Amendment and 8 C.F.R. § 287.8(b). The three-
judge panel agreed, but instead of holding merely that the
evidence obtained from the arrest should have been
suppressed, its opinion orders the entire deportation
proceeding terminated. The opinion’s irredeemable flaw is
its attempt to cure an illegal arrest—a quintessential Fourth
Amendment violation—with a remedy that the Fourth
Amendment would never authorize.
A
If Sanchez’s Fourth Amendment rights were violated,
then he is indeed entitled to a Fourth Amendment remedy.
Under our circuit’s case law, Sanchez may (and indeed did)
seek the exclusion of wrongfully obtained evidence from his
immigration proceedings. See, e.g., Lopez-Rodriguez v.
Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008). 4 But here, as
3
A word of explanation regarding the inordinate delay in this case’s
resolution. Although briefing in our court was completed in March 2015,
the case was not argued until March 2017. In August of the same year, a
reasonable time after argument, the panel issued its decision. See
Sanchez v. Sessions, 870 F.3d 901 (9th Cir. 2017). After the tragic
passing of a member of the initial three-judge panel, a re-constituted
panel withdrew the original opinion in July 2018 and filed the revised
opinion at issue here in September 2018. A call to rehear the case en banc
failed.
4
I continue to believe that our application of the exclusionary rule
in civil deportation proceedings flouts the Supreme Court’s decision in
14 SANCHEZ V. BARR
the panel reluctantly concedes, the brute fact is that
suppression does him no good: the government possesses
independent (and constitutionally firm) evidence
establishing Sanchez’s unlawful status. See Sanchez,
904 F.3d at 653. Eager to give Sanchez some relief, however,
the panel stretches our case law beyond recognition. Instead
of suppression of the unlawfully obtained document, the
panel awarded him “termination without prejudice,” thus
mandating commencement of a new round of removal
proceedings with another hearing before the IJ, another
appeal to the BIA, and another petition for review to our
court—potentially another eight years of safe haven in the
United States. Id. at 657.
The opinion seems to invoke a straightforward
compensatory-justice theory. Sanchez’s initial detention, the
opinion reasons, resulted from racial profiling, so the
subsequent deportation proceeding was “tainted from [its]
roots.” Id. at 655 (internal quotation marks omitted). Thus,
only “full termination of the proceedings without prejudice
can effectively cure any procedural defect by putting the
parties into the position [in which] they would have been had
no procedural error taken place.” Id. (internal quotation
marks omitted). Stated differently, the opinion purports to
restore Sanchez to his rightful position by washing away the
“taint” of his unlawful arrest. To do so, it prescribes a
government “do-over,” now nine years after the first round
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). See Lopez-Rodriguez v.
Holder, 560 F.3d 1098, 1106 (9th Cir. 2009) (Bea, J., dissenting from
the denial of rehearing en banc) (arguing that “our precedent has set us
on a collision course with the Supreme Court” by incorporating “the
exclusionary rule, with all its attendant costs, back into immigration
proceedings, after the Court has taken it out”). Here, the panel works a
radical and unwarranted expansion of our already dubious precedent.
SANCHEZ V. BARR 15
started, as if the entire eight-year-long deportation
proceeding had never occurred.
B
Such approach fails. The Fourth Amendment does not
authorize a court, for example, to invalidate an arrest,
prosecution, or subsequent proceeding simply because it
resulted from such a violation. See United States v.
Morrison, 449 U.S. 361, 366 (1981) (“[W]e have not
suggested that searches and seizures contrary to the Fourth
Amendment warrant dismissal of the indictment.”). Such
limitation makes sense. The Fourth Amendment safeguards
the substantive rights to “privacy and security.” Carpenter v.
United States, 138 S. Ct. 2206, 2213 (2018) (internal
quotation marks omitted). It does not establish a right to be
free from prosecution for crimes committed—even if such
prosecution results from an illegal search. See United States
v. Leon, 468 U.S. 897, 906 (1984) (“[T]he use of fruits of a
past unlawful search or seizure works no new Fourth
Amendment wrong.” (internal quotation marks omitted)).
The Supreme Court’s application of the exclusionary
rule confirms the correct approach. Because a Fourth
Amendment violation is “fully accomplished by the
unlawful search and seizure,” trial remedies like the
exclusionary rule are “neither intended nor able to cure” the
constitutional harm. Id. (internal quotation marks omitted).
As such, exclusion is not designed to restore the defendant
to his pre-violation position, but rather to deter future
violations by offering him a windfall (i.e., the exclusion of
incriminating evidence at trial). See Hudson v. Michigan,
547 U.S. 586, 591 (2006). Just as with the exclusionary rule
itself, however, the panel’s novel termination remedy does
not “cure” the initial unlawful arrest. Thus, the opinion’s
core premise—that termination washes away the “taint” of
16 SANCHEZ V. BARR
the government’s initial violation—contravenes the proper
application of the Fourth Amendment.
To illustrate, consider whether the panel’s theory would
make any sense in a criminal proceeding. Suppose that a
citizen is unconstitutionally detained because of his race, but
law enforcement officials also discover—because of
evidence obtained independently of such arrest—that he
committed a drug crime and charge him accordingly. The
exclusionary rule, of course, would not compel the
suppression of the “independently acquired” evidence. Utah
v. Strieff, 136 S. Ct. 2056, 2061 (2016). Could the court
instead dismiss the criminal indictment because the illegal
arrest tainted the criminal proceeding that followed? Could
the court order the defendant to be released from custody?
Of course not. See Morrison, 449 U.S. at 366 (“The [Fourth
Amendment] remedy in the criminal proceeding is limited to
denying the prosecution the fruits of its transgression.”).
Indeed, the panel does not cite a single case that terminates
a criminal proceeding for such a reason. And if termination
of proceedings would be unavailable in a criminal
prosecution, then it should be inconceivable in a civil
deportation proceeding.
Perhaps aware that Fourth Amendment doctrine
forecloses its reasoning, the panel alludes instead to a
separate justification for its remedy: deterrence. See
Sanchez, 904 F.3d at 655; see also Paez Concurrence at 8–9.
But whether such remedy will prevent future violations
against other aliens has nothing to do with restoring Sanchez
to his rightful position. Worse, the panel’s indistinct
reference to the remedy’s deterrence value rests on
contestable empirical assumptions, and the panel makes no
effort to show that such benefits outweigh the costs. Cf. INS
v. Lopez-Mendoza, 468 U.S. 1032, 1040–50 (1984)
SANCHEZ V. BARR 17
(balancing the benefits and costs of the exclusionary rule in
deportation proceedings). Besides, the panel’s subtle
reliance on deterrence smuggles in the very reasoning that
drives the Court’s application of the exclusionary rule—
reinforcing, yet again, that the Fourth Amendment should
guide this case’s resolution.
C
Lopez-Mendoza, the Supreme Court’s leading case on
the application of the Fourth Amendment to civil deportation
proceedings, also repudiates the panel’s reasoning. There,
government agents arrested Lopez-Mendoza “at his place of
employment” even though the “agents had not sought a
warrant to search the premises or to arrest any of its
occupants.” Id. at 1035. Below, he “objected only to the fact
that he had been summoned to a deportation hearing
following an unlawful arrest.” Id. at 1040. Nevertheless, the
Supreme Court upheld the IJ’s removal order because the
“mere fact of an illegal arrest has no bearing on a subsequent
deportation proceeding.” Id. at 1041 (emphasis added and
brackets and internal quotation marks omitted).
Lopez-Mendoza rejects the opinion’s core premise. Here
too, Sanchez’s illegal arrest has “no bearing” on his removal
proceeding. Consequently, the arrest cannot “taint[]” the
proceeding “from [its] roots.” Sanchez, 904 F.3d at 655
(internal quotation marks omitted). The panel ignores the
fact that the Supreme Court has expressly rejected the very
theory on which it relies.
III
To avoid the Fourth Amendment’s doctrinal dead-end,
the panel mysteriously claims that its remedy seeks to cure
only a “regulatory violation”—not a violation of the Fourth
18 SANCHEZ V. BARR
Amendment itself. See Sanchez, 904 F.3d at 653–55. The
relevant regulation states that an immigration officer may
“detain [a] person for questioning” if the officer has a
“reasonable suspicion . . . that the person being questioned
is . . . an alien illegally in the United States.” 8 C.F.R.
§ 287.8(b)(2). The panel reasons that the Coast Guard’s
violation of § 287.8(b)(2)—again, Sanchez’s detention on
the basis of race—estops the government from continuing
the proceeding.
But § 287.8(b)(2), as the opinion notes, exists simply to
“effectuate” the Fourth Amendment and “all but parrots” its
requirements. Sanchez, 904 F.3d at 651, 652 n.9; see also
Paez Concurrence at 8. We may not launder Fourth
Amendment violations through agency regulations to
authorize a remedy that the Fourth Amendment would never
allow. The panel’s decision to order the government to
terminate deportation proceedings because of a regulatory
violation is unsustainable in theory and unfounded in
precedent. 5
A
Let’s begin with a first principle that the opinion
obscures: our authority to compel an agency to follow its
own regulations must have its source in the Constitution
itself or some federal statute. See United States v. Caceres,
5
One need not dwell on the opinion’s specific doctrinal test because
its errors are so much more fundamental. But for ease of reference, it
held that a petitioner should receive such termination remedy if: “(1) the
agency violated a regulation, (2) the regulation was promulgated for the
benefit of petitioners; and (3) the violation was egregious, meaning that
it involved conscience-shocking conduct, deprived the petitioner of
fundamental rights, or prejudiced the petitioner.” Sanchez, 904 F.3d
at 655.
SANCHEZ V. BARR 19
440 U.S. 741, 749–55 (1979) (refusing to compel an agency
to follow its own regulation because such regulations were
not “required by the Constitution or by statute,” and because
neither the Fourth Amendment, the Due Process Clause, nor
the Administrative Procedure Act authorized the Court to
enforce compliance). We lack a roving commission to seek
out and to redress every wrong inflicted by the Executive
Branch, remediating instead only specific legal wrongs with
the specific remedies authorized by federal law.
Unfortunately, the opinion never bothers to identify the
legal basis for its “regulatory violation” theory. Certainly,
the panel invokes the Constitution when it observes that the
violated regulation “effectuate[s] the Fourth Amendment.”
Sanchez, 904 F.3d at 652 n.9; see also id. at 651 (regulation
“all but parrots” Fourth Amendment standards); id. at 652
(regulation “reflects the Fourth Amendment’s
requirements”); id. at 656 n.15 (regulation “is premised on
Fourth Amendment standards”). Yet the Fourth Amendment
itself cannot sustain the panel’s holding. Which raises the
question: what is the legal basis for the panel’s remedy?
It cannot be the “Fifth Amendment due process
guarantee that operates in removal proceedings.” Chuyon
Yon Hong v. Mukasey, 518 F.3d 1030, 1035 (9th Cir. 2008).
The Due Process Clause promises aliens the “full and fair”
opportunity to assert the right to remain in the United States.
Montes-Lopez v. Holder, 694 F.3d 1085, 1092 (9th Cir.
2012) (internal quotation marks omitted). But here,
Sanchez’s unlawful arrest has no effect at all on the
deportation proceeding itself. His illegal arrest does not
infringe upon his ability to offer evidence, to obtain counsel,
or to make his case before the IJ. No legal support there!
Nor is it the Immigration and Nationality Act, see 8
U.S.C. § 1252, or “a rule of administrative law,” United
20 SANCHEZ V. BARR
States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir.
1979); see also Bd. of Curators of Univ. of Mo. v. Horowitz,
435 U.S. 78, 92 n.8 (1978) (stating that cases mandating
agency compliance with their own regulations “enunciate
principles of federal administrative law rather than of
constitutional law”). Indeed, the otherwise-thorough opinion
does not include a single sentence of textual analysis
demonstrating that § 1252 authorizes us to order the
government to restart deportation proceedings because of an
initial unlawful arrest. Likewise, the panel cannot claim to
articulate some new rule of administrative common law
because its holding is incompatible with our treatment of
other administrative agencies. See Caceres, 440 U.S. at 749–
55.
In sum, the panel’s inability to identify the legal basis for
its remedy is telling, as it suggests that there isn’t one.
Instead, the gravamen of Sanchez’s complaint is that the
government violated the Fourth Amendment—not his due
process rights, not a statutory right, not some rule of
administrative law, and not an unidentifiable potpourri of
protected interests. But if this case involves a Fourth
Amendment wrong, it should be controlled by Fourth
Amendment jurisprudence. Those principles, however,
unambiguously foreclose the panel’s extravagant remedy.
B
Unsurprisingly, no other court has imposed such a
remedy. Indeed, the panel does not identify a single decision
in which a federal court actually required termination of
proceedings when a regulatory violation invaded Fourth
Amendment interests. Instead, the panel scrounges up a
single Ninth Circuit case concerning a deprivation of a
procedural (not substantive) right in a criminal proceeding,
see Calderon-Medina, 591 F.2d at 529; a BIA decision that
SANCHEZ V. BARR 21
(needless to say) is not precedent at all, see Matter of Garcia-
Flores, 17 I. & N. Dec. 325 (BIA 1980); a Second Circuit
opinion that it over-reads, see Rajah v. Mukasey, 544 F.3d
427 (2d Cir. 2008); and a smattering of inapposite out-of-
circuit decisions. See Sanchez, 904 F.3d at 654–55.
The bulk of the cases it cites in support of its theory
concern regulations offering procedural protections that
ensure constitutionally (or statutorily) mandated
adjudicative due process. 6 But such procedural protections
differ in kind from the substantive interests protected by the
regulation in this case. Because the violation of a procedural
right (e.g., the right to counsel) increases the risk of
erroneous deportation, such violation might require a new
proceeding with the procedural protection restored. Cf.
Morrison, 449 U.S. at 364–65 (describing the Court’s
approach to Sixth Amendment remedies). By contrast, the
regulation in this case—like the Fourth Amendment itself—
safeguards each person’s substantive right to privacy. Thus,
it makes no sense to draw on cases involving defects in the
proceedings themselves to address an unlawful arrest.
The panel’s resort to Rajah—which did concern
regulations designed to effectuate the Fourth Amendment—
fares no better. The panel claims that the Second Circuit held
that “petitioners may be entitled to termination of their
removal proceedings without prejudice for egregious
regulatory violations.” Sanchez, 904 F.3d at 953 (citing
Rajah, 544 F.3d at 446–47). But Rajah does not go that far.
6
See Snajder v. INS, 29 F.3d 1203, 1206 (7th Cir. 1994) (right to
counsel); Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993) (right to
counsel); Montilla v. INS, 926 F.2d 162, 166 (2d Cir. 1991) (right to
counsel); Calderon-Medina, 591 F.2d at 530 (right to communicate with
consular or diplomatic officers); Castaneda-Delgado v. INS, 525 F.2d
1295, 1302 (7th Cir. 1975) (right to counsel).
22 SANCHEZ V. BARR
Although the Second Circuit suggested that in some other
case a showing of “prejudice,” “conscience-shocking
conduct,” or a “deprivation of fundamental rights” might
justify termination of proceedings, it did not give any
examples of such a circumstance. Rajah, 544 F.3d at 447.
Moreover, Rajah cites to no legal authority for imposing
such a remedy when the violated regulation effectuates the
Fourth Amendment; instead, like the opinion here, it relies
only on inapposite cases involving procedural protections.
See id. (citing Waldron v. INS, 17 F.3d 511, 518 (2d Cir.
1993); Montilla v. INS, 926 F.2d 162, 166 (2d Cir. 1991)).
Rajah cannot support the panel’s innovation.
IV
Finally, the panel’s opinion creates a host of practical
problems.
A
First, the termination-of-proceedings rule creates
perverse incentives for aliens and immigration lawyers to
inject inefficiency into deportation proceedings. The opinion
offers a windfall (termination of proceedings, no less) to
those who can show that immigration officials violated their
own regulations during the investigation, detention, and
removal proceedings—even if such violations had no effect
on the proceedings that followed. Lingering on such
technicalities, however, ignores the Supreme Court’s
instruction that “[p]ast conduct is relevant only insofar as it
may shed light on the respondent’s right to remain.” Lopez-
Mendoza, 468 U.S. at 1038 (emphasis added).
At the same time, the panel’s theory could deter the
government from formulating “additional standards to
govern prosecutorial and police procedures.” Caceres,
SANCHEZ V. BARR 23
440 U.S. at 755–56. The conclusion that regulatory
violations authorize federal courts to terminate otherwise-
meritorious removal proceedings could give the government
reason to scrub from the books any regulations that benefit
aliens. Perversely, then, the opinion’s holding may help
Sanchez only to deprive all other aliens of the benefits of the
government’s “own comprehensive scheme for deterring
Fourth Amendment violations by its officers.” Lopez-
Mendoza, 468 U.S. at 1044.
B
The panel’s novel termination-of-proceedings remedy
also invites a wave of litigation to map its metes and bounds.
The initial question, of course, is what exactly “termination
without prejudice” means. Sanchez, 904 F.3d at 657. The
BIA will undoubtedly dismiss proceedings, but DHS could
then serve Sanchez with a new Notice to Appear and start all
over again. The opinion offers Sanchez nothing more than a
meaningless formality before his inevitable removal.
Perhaps, however, the panel has something more drastic
in mind. Its reasoning, after all, is that the remedy must put
Sanchez into his rightful position as if “no procedural error
[had] taken place.” Id. at 655 (internal quotation marks
omitted). Such reasoning sets up a counter-factual in which
Sanchez was never detained, never interrogated, and never
issued the Notice to Appear. Must the BIA tear up the Form
I-213 about Sanchez? Delete all records of him from the
government’s databases? Order each implicated government
official to forget everything he ever knew about Sanchez?
Doubtless, enterprising lawyers will seize on the opinion’s
extravagant reasoning to seek still-more intrusive remedies
in civil deportation proceedings. We should not invite their
spurious arguments.
24 SANCHEZ V. BARR
C
I also fear that the decision may not be limited to the
immigration context. The opinion introduces a glaring
discontinuity between civil removal proceedings on the one
hand and other administrative proceedings and criminal
prosecutions on the other. The opinion’s holding allows
aliens who suffer regulatory violations to reap a windfall not
present in any analogous area of law.
A criminal defendant convicted on the basis of illegally
obtained evidence or a coerced confession has no similar
opportunity. He can ask for a new trial with the improperly
obtained evidence suppressed, but he cannot demand that the
court quash his indictment. Likewise, in administrative
contexts, a party can challenge an enforcement action based
on procedural failures by the agency. But courts do not
enjoin the agency from altogether enforcing the law against
the regulated party. I am sure that criminal defendants and
civil litigants would much prefer that courts dismissed their
cases too. When they ask our court to punish regulatory
failures the same way in other contexts, how can we deny
them the same windfall?
V
This case should have been simple. The sole question in
a deportation proceeding is whether the alien has a “right to
remain in this country in the future.” Lopez-Mendoza,
468 U.S. at 1038. Here, the government can establish
Sanchez’s unlawful status with admissible evidence, so the
BIA correctly affirmed the IJ’s removal order.
Instead, the panel’s refusal to accept this outcome has
produced a decision that (1) defies the Supreme Court’s
decision in Lopez-Mendoza, (2) ignores basic Fourth
SANCHEZ V. BARR 25
Amendment principles by ordering a more-intrusive result
than the Amendment authorizes, (3) fashions a remedy to
enforce agency regulations without a sound legal basis for
such an imposition, (4) shows a profound misunderstanding
of the difference between substantive and procedural rights
and their appropriate remedies, (5) cites as authority a
handful of inapposite out-of-circuit precedents, and
(6) imposes serious practical costs on the administration of
immigration proceedings.
Worst of all, the opinion’s imposition of an extraordinary
remedy wastes everyone’s time, for it does nothing but delay
the petitioner’s inevitable removal. The en banc process
exists to ensure the sound development of our circuit’s case
law, and we should have used it here to correct the panel’s
extravagant and erroneous decision.