Markowit, Peter L., Esq.

Immigration Justice Clinic

Brookdale Center
55 Fifth Avenue, Room 1109
New York, NY 10003
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Office of the Clerk
51(7 lce.h11rg Pike, S11itc 2000
Full. Church. Virgi11iu 22041
OHS/ICE Office of Chief Counsel - NYD
201 Varick, Rm. 1130
New York, NY 10014
Name: IXPEC CHITAY, MIGUEL AUGUS ... A 097-535-400
Date of this notice: 9/16/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Donovan, Teresa L.
Pauley, Roger
Wendtland, Linda S.
Sincerely,
DO CaA
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
U.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 22041
File: A097 535 400 - New York, NY
In re: MIGUEL AUGUSTO IXPEC-CHIT A Y
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Peter L. Markowitz, Esquire
ON BEHALF OF OHS:
CHARGE:
Silvia X. Liu
Senior Atorey
Date:
Notice: Sec. 212(a)(6)(A)(i), l&N Act (8 U.S.C. l 182(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Motion to suppress; tenination
SEP
16 2013
The Deparent of Homelad Security ('DHS") appeals a Immigration Judge's July I, 2011,
written decision ganting the respondent's motion to suppress ad teninate removal proceedings.
The respondent ha opposed the OHS
,
appeal, requested oral argument, and requested that this
Board issue precedent in tis case. The respondent's request fr oral argument is denied, ad we
decline the respondenfs request that we issue precedent in his case. The OHS' appeal will be
dismissed.
The Boad reviews an Immigation Judge
,
s fndings of fct, including fndings as to the
credibilit of testimony, under the "clearly eroneous
,,
standad. 8 C.F.R. 1003. l(d)(3)(i). The
Boad reviews questions of law, discretion, ad judgment and all other issues in appeals fom
decisions oflmmigation Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).
On appeal the DHS contends that the respondent should be fund not credible, that he did not
establish a prima facie case fr suppression, that the record is devoid of evidence of a egegious
violation of the respondent's constittional rights, that Fors I-213 and 1-21 Sc are sufciently
attenuated fom any violation of the respondent's constitutional rights, and that the respondent's
birth cerifcate is independently sourced, "insuppressible identity evidence" (DHS' Br. at 2, 8,
9, 16). The DHS asserts that the Immigation Judge's decision granting the respondent's motion
to suppress ad ternate proceedings should be vacated, that the respondent should be fund
removable as chaged, and that proceedings should be reinstated.
We need not repeat all the fctual circumstances of this case as extensively described by te
Immigation Judge, but we will review backgound infnation that is paricularly relevant fr
adjudicating the instant appeal.
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
A097 535 400
On April 18, 2007, the respondent was personally sered a Notice to Appea, alleging that
he was a citizen of Guatemala ad chaging him with being present in the United States
without admission or parole (Exh. 1). Te OHS profered For 1-213, a record of
Inadmissible/Deporable Alien, and For I-215c, a Record of Swor Statement (Exhs. 2(10) and
3(10)) as evidence of alienage. On October 10, 2008, the respondent fled a motion to suppress
ad terminate with the Immigation Judge, aguing that the OHS' evidence was obtained during
an egegious violation of the Fouh Amendment to the U.S. Constitution, and therefre should
be suppressed ad te proceeings aganst him terinated. On December 18, 2008, the OHS
fled a opposition to te respondent's motion with new evidence including a document
purorting to be the respondent's birh certifcate fom Guatemala (Exhs. 40(10)-46(10)). The
Immigation Judge directed the OHS to fle ay warats fom the arest, infration on the
circumstances of the home enty, infration surouding how the birh cerifcate was obtained,
ad a list of any OHS witesses in the case. Although te OHS submited the additional
docuents to the Immigration Jude, the OHS did not submit ay witnesses or rebuttal evidence
as to the events of April 18, 2007.
On April 20, 2009, the respondent testifed in support of his motion. He testifed that on
April 18, 2007, he w arested at his home in Rverhead, NY, where he lived in a thee bedroom
apaent, on the gound foor level, wth seven men, including his brothers Calos ad Cristobal
(l.J. at 4; Exhs. 4 ad 5(10)). At approximately 5:00 a.m. that moring, the respondent heard the
phone ring ad the noise of many cas ariving nea his home. Te respondent head a number
of voices of Immigation ad Customs Enforcement agents yelling outside in English (which is
not his native laguage) "[p]olice, police, open the door!" (l.J. at 5; Tr. at 219-20). Te
respondent slept in a bedroom with his brothers Calos and Cristobal. He testifed that there was
a air conditioner in the window next to his bed, which slipped out as the window wa raised by
a agent. He testifed that his head wa under the covers and this agent reached inside the
window and hit hm on the head with a heavy metal fashlight approximately three times, which
later caused a lage bruise on his head (l.J. at 5-7; Tr. at 281-82). The agent instcted him to get
up and open the font door. While the respondent did not get up out of his bed, his brother
Carlos got up ad went out into the kitchen leaving their bedroom door open (l.J. at 5; Tr. at
240-42). The respondent could hea that there was another agent in the kitchen who he later
leaed fom Carlos had opened ad partially pushed through a kitchen window. This agent was
yelling at Carlos to "[o]pen the door, open the door!" (l.J. at 5; Tr. at 297-99). Te respondent
obsered his brother Carlos, fom his position in his bed, begin to unlatch the door when the
agents pushed his brother over and cae into his home (Tr. at 197; Exh. I 0 and 11).
2
The agents
1 As fund by the Immigtion Judge, Exhibit 46(10), a afdavit fom ICE Superisor
Detention and Deportation Ofcer Daren Willias (which makes generalized statements
regarding the typical enfrcement procedures in efect in New York during 2007), does not
constitute rebuttal evidence as it does not contain any personal kowledge of the events of
April 18, 2007.
2
These fcts are essentially undisputed. However, the OHS asserts that because the respondent
could not see the initial interaction between Calos ad the agent leaning in through the kitchen
window, the respondent lacks personal kowledge about whether or not his brother consented to
the agents coming into his home (OHS' Br. at 21 ).
2
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
A097 535 400
did not have a search or arest war t, but did have a administative warant that allowed them
to ar est only the respondent's brother Calos (I.J. at 7; Exh. 43). Once inside, the agents stated
that they were looking fr Carlos and Carlos identifed himself to the agents.
The respondent testifed that he did not he anyone give the ofcers penission to enter the
home, nor did he hear any agent ask fr penission or consent to enter (I.J. a 4-7). The
respondent stated that there were about 10 agents in his home, that they came into his bedroom,
gabbed him out of his bed, ad handcufed him without asking him any questions, reading him
any rights, or showing him any papers. While the respondent was being taken to the kitchen,
aother agent kicked in a second bedroom door that was vacat, but had been locked. Later the
agents asked the respondent fr identifcation and they took him back to his bedroom, where they
bega opening his dawers ad looking inside. The respondent testifed that he did not feel fee
to leave, that the agents never asked fr perission to seach his home, and that no one ever gave
the agents perission to seach his house (l.J. at 5-6; Exhs. 4, 5(ID), 6(ID), 7(ID), 8(10)). Afer
the agents were done searching the respondent's home, they took the residents outside to a van,
which drove them over an hour and a half to Manhattan fr questioning. The respondent
testifed that he wa never told that he was being arested or interiewed on suspicion of not
being entitled to remain in the United States, that he had the right to counsel, or that his
statements might be used against him in an administative proceeding (l.J. at 6; Exhs. 3(1D), 4).
On July l, 2011, the Immigation Judge issued a written decision holding that the respondent
met his buden of making aprimafacie showing (which the OHS failed to rebut) that the agents'
conduct was egegious (I.J. at 10; Exhs. 4, 5(10), 6(ID), 7(10), 8(10)). The Immigration Judge
fund that the agents violated te respondent's Fourh Amendment rights when they entered his
home without an enty warat or consent, when they seized the respondent without any
reasonable suspicion, when they searched his apartent without a search war t or consent, and
when they taspored him ad subjected him to a protacted interogation. The Immigration
Judge also concluded that the ofensive conduct was highly severe and lengthy, ad that the
severity of the seizre combined with the Fourth Amendment violations constituted egregious
conduct (l.J. at 9; Exhs. 4, 5(ID)-8(ID), and 40(10)-46(10)).
While we acknowledge the OHS' arguments with respect to the respondent's credibility, we
fnd that the Immigration Judge's fndings of fct are supported by the record ad ae not clealy
eroneous. See Biao Yang v. Gonales, 496 F.3d 268 (2d Cir. 2007); cf Jin Chen v. US Dep 't of
Jutice, 426 F.3d 104 (2d Cir. 2005); 8 C.F.R. 1003.l(d)(i). We fnd insufcient gounds to
reverse the Immigation Judge's decision that te respondent made a prima facie and unebutted
showing that the search and seizure actions of the agents were egegious such that evidence
obtained through non-independent means thereafer should be suppressed and the proceedings
terinated. As such, we afr the Immigation Judge's decision. 8 C.F.R. 1003. l (d)(3)(ii).
I removal proceedings, an alien seeking the exclusion of evidence based on the Fourh
Amendment bears the burden of establishing a prima facie case that evidence should be
suppressed. See Matter ofTang, 13 I&N Dec. 691 (BIA 1971); Matter of Wong, 13 I&N Dec.
820 (BIA 1971). The request to exclude evidence should be made via a motion to suppress that
is supported by a afdavit or other objective evidence that explains why suppression is
appropriate. See id. The afdavit must contain specifc, detailed statements based on the
personal knowledge of the afant. Only when an alien has come frwad with adequate
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
A097 535 400
evidence in support of suppression will the burden shif to the DHS to justif the manner in
which it obtained the evidence. See Matter ofBarcenas, 19 l&N Dec. 609, 611 (BIA 1988).
In addition, while the United States Supreme Court has held that the Fourh Amendment
exclusiona rle is generally inapplicable to deportation proceedings, a plurality of the Cout
suggested that this rle may apply if there ae egregious Fourth Amendment violations. See IS
v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). The United States Court of Appeals fr the
Second Circuit, under whose jurisdiction this case arises, has expressly adopted the plurality's
view and has fund that the exclusiona rule would apply if there were violations of te Fourh
Amendment that were egregious "either because the violaton 'transgess[ed] notions of
fndamental fairess' or because the violation 'underine[d] the probative value of the evidence
obtained."' See Almeida-Amara/ v. Gonales, 461 F.3d 231, 234-35 (2d Cir. 2006) (citing INS
v. Lopez-Mendoza, supra, at 1050-51); Melnitsenk v. Mukey, 517 F.3d 42, 46-47 (2d Cir.
2008).
Although we have consistently held that evidence resulting fom a search and seizure in
violation of Fourth Amendment rights is not per se excludable fom civil deporation
proceedings, we have deterined that "[t]he circumstances surounding an arrest and
interrogation . . . may in some caes render evidence inadmissible under the due process clause
of the ff amendment." See Matter ofToro, 17 I&N Dec. 340, 343 (BIA 1980) ("cases may
arise in which the maner of seizing evidence is so egegious that to rely on it would ofend the
ff aendment's due process requirement of fndaental fairess."). However, in view of the
civil nature of deporation (ad removal) proceedings, the "identity of a alien (as distinguished
fom alienage) is not suppressible .. . even if it is conceded that a illegal arest, search, or
interogation occured." See Mater ofSandoval, 17 I&N Dec. 70, 79 (BIA 1979).
Further, because we ae dealing with an ealy-moring enty and ar est that took place in a
prvate residence in this cae, we must be aware of the unique and serious considerations present
in such a aalysis, even in the context of a civil removal proceeding, given that there is a greater
expectation of privacy and a heightened interest in preventing unlawfl arests and searches in
one's home (l.J. at 7-10). See United States v. Hassock, 631 F.3d 79, 85 (2d Cir. 2011) ("Te
Four Amendment protects '(t]he right of the people to be secure in their person, houses, papers
and efects against ueaonable seaches ad seizures."' (citing U.S. Const. aend. IV)); see
generaly Lopez-Rodrigez v. Muksey, 536 F.3d 1012, 1016 (9 Cir. 2008) (holding that the
ar est of the petitioner, who did not consent to a wartless enty of her home, violated her
Fourth Amendment rights ad noting that taditional Fourh Amendment principles dictate that a
seach and seizure inside a home without a warant is presumptively unreasonable in the criminal
context (citing Paton v. New York, 445 U.S. 573, 586 (1980)) and that the presumption of
unconstitutionalit that accompaies a warantless enty into a home may be overcome only
by showing consent or exigent circumstances (citing Steagald v. United States, 451 U.S. 204,
211 (1981)).
The Immigration Judge obsered that because the agents only had a administative warant,
they could only legally enter the respondent's home with valid consent (l.J. at 7; Ex. 43). See
United States v. Isiofa, 370 F.3d 226 (2d Cir. 2004). The Immigration Judge fund that the
agents did not obtain consent, but rather opened windows and parially crawled in them, yelled at
the respondent, hit the respondent wth a fashlight, pushed their way into the apartent without
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
A097 535 400
perission, searched the respondent's aparent without perission, and seized the respondent
without reasonable suspicion or probable cause. As deterined by the Immigration Judge, once
the agents an ounced they were looking fr Carlos, he promptly identifed himself (Tr. at 241,
244; Exhs. 4 ad 5(1D)). Id. at 230-33. The Immigration Judge obsered that, at this point, the
agents had the target of their wart standing unarmed in the dooray, and that the agents could
have confed his identity, arested him, ad lef the residence. However, the Immigation
Judge fund that the agents did not do this, but rather fooded the home with other agents,
handcufed the respondent without asking him any questions or infring him that he was under
arest or had certain rights, searched through the aparent including opening drawers, ad even
kicked in a locked bedroom door (l.J. at 8-9; Exhs. 9-12).
3
As fund by the Immigration Judge,
the respondent did not consent to ay of tis activity by the agents (l.J. at 9).
4
The respondent
was then tanspored to Manhattan by van, where he was subjected to a lengthy custodial
interogation that lated fr approximately seven or more hours (Exhs. 4 and 5(1D)).
Like the Imigation Judge, we are paricularly concered with the actions of the agents in
opening ad partially entering through the respondent's windows without perission, baging
through his font door, seizing ad hadcuffng the respondent without explanation or cause,
tansporting h against his will, ad over the course of may hours, subjecting him to a
custodial interogation in the dowtow ofce about his immigation status, nationality, and
maner of entering the United States. See Exhs. 2(1D)-12); see also Almeida-Amara/, supra, at
235-36 ("while te lack of any valid basis whatsoever fr a seizure sets the stage fr
egegiousness, more is needed," and holding at "exclusion may well be proper where the
seizure itself is goss or unreaonable in addition to being without a plausible legal gound, e.g.,
when the initial illegal stop is pariculaly lengthy, there is a show or use of frce, etc.").
3 We note that the DHS ha the authority to ask an alien about his alienage (i.e., as to his right to
be or remain in the United States) under section 287(a)(l) of the Act, 8 U.S.C. 1357(a)(l).
See also 8 C.F.R. 287.8(b)(2) (allowing immigation ofcers-when having reasonable
suspicion that, inter alia, a alien is illegally in the United States-to "briefy detain the person
fr questioning"). However, the regulations also describe the context of such perissible
questioning-Le., "as long a the im igation ofcer does not restain the feedom of [the]
individual, not under arest, to walk away." 8 C.F.R. 287.8(b)(l). Here, the respondent did not
feel fee to walk-away, and was hadcufed, taken into custody, and tanspored against his will.
Cf Pinto-Montoya v. Muksey, 540 F.3d 126 (2d Cir. 2008).
4
While the exception of consent applies equally in removal proceedings, the DHS did not fle
ay statement fom ay ofcer who was present that refects the agents believed they were given
consent (Exhs. 40(1D)-46(1D)). Rather, the DHS contends simply that the respondent could not
be sure his brother did not consent because he could not see everyhing traspiring in the kitchen
during the initial contact with te agents, and presumably relies on a general statement in te
1-213 that the agents received consent (DHS' Br. at 44-45; Exhs. 2(1D), 9-12). Moreover, as
fund by the Immigation Judge, the DHS does not assert any basis fr arresting the respondent
and did not claim the agents had a reasonable belief, based on specifc, ariculable fcts, that the
respondent was in the count illegally befre handcufng him. 8 C.F.R. 287.8(b)(2); see also
Pinto-Montoya v. Muksey, supra, at 132.
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
A097 535 400
We frther note te intimidating nature and severity of the agents conduct is disconcering
given the respondent's statement that he was not asked or told anything befre he was
hadcufed, that he did not have a fll understanding of the operation, and that he flt
constained (i.e., he did not feel fee to leave while being hadcufed, set on the foor and
surounded by agents). See generally Matter ofSandoval, supra, at 83 n.23 ("Our decision in
this regard, of course, does not afect the inadmissibility ... of statements or admissions tat are
involuntary or coerced."); Matter of Garcia, 17 l&N Dec. 319, 321 (BIA 1980) (respondent
made prima facie showing that admissions were given involuntarily and the goverent
presented no conta evidence; proceeings terminated). Also toubling is the OHS' decision
not to ofer the testimony of the agents who ar ested ad detained the respondent during the
hearing, as such infration could have provided ay clarifcation needed regarding the issues of
consent, probable cause, or reasonable suspicion (I.J. at 8).
We conclude tat the Immigtion Judge properly held (on the basis of the facts fund by the
Immigaton Judge, which have not been show to be clealy erroneous) that te agents' frced
and unconsented intsion into the respondent's home, as well as their maner of detaining,
searchng, ar esting, tansportng, ad interogating the respondent (witout any showing the
agents initially had a lawl reason to seach or arest te respondent) were show to be
sufciently severe ad egegious (DHS's Br. at 2-23; Exhs. 9-12, 40(D)-46(ID)). See
Almeida-Amaral, supra, at 235. Therefre, as we fnd that the DHS did not sufciently justif
the maner in which it obtained evidence against the respondent, any statement or document
taken fom him during his ar est ad detention was in violation of his Fourth Aendment rights
ad, accordingly, such infration should be suppressed.
The OHS also agues that the exclusiona rule is not applicable in tis case because the
goverent discovered evidence of the respondent's removabilit fom an independent source.
See Segura v. United States, 468 U.S. 796, 805 (1984) (holding that is well established that
evidence is not to be excluded if the conection between the illegal police conduct ad the
discovery ad seizure of the evidence is sufciently attenuated, and noting that "[i]t is not to be
excluded, fr exaple, if police had an 'independent source' fr discovery of the evidence")
(citations omitted); see also Matter ofCervantes-Torres, 21 I&N Dec. 351, 353 (BIA 1996)
(fnding that the identity of an alien is never itself suppressible as the fuit of a unlawl arest).
Specifcally, the OHS cites the bir certifcate fom te Guatemalan goverent as independent
evidence of the respondent's removability (DHS's Br. at 12-13; Exh. 44(10)). In this regard, the
OHS states tat the respondent1s bir certifcate was requested and received fom the
goverent of Guatemala monts afer the respondent's allegedly illegal arrest. Te DHS also
cites to the Supreme Couis decision in INS v. Lopez-Mendoza, supra, at 1039, aong others,
fr the proposition that "[t]he 'body' or identity of a defendat or respondent in a criminal or civil
proceeding is never itself suppressible as a fuit of an unlawfl arrest, even if it is conceded that
a ulawl arest, search, or interogation occured" (DHS's Br. at 9-12).
We recognize that if the respondent's alienage was discovered through independent
investigatory techniques, the remedy of suppression may be unavailable to the respondent. As
we have stated, "[o]nce an alien's identity is leaed, the [OHS] can entirely avoid tiggering the
exclusiona rle ... where documents lawflly in the [DHS's] possession evidence unawl
presence." Matter ofSandoval, supra, at 79. Hqwever, a held by the Immigation Judge, the
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
v
A097 535 400
DHS has failed to show how te identity document it received fom the Guatemalan goverent
(which it apparently requested fom that goverent afer it leaed te respondent's name and
natonalit) amounts to independent evidence of te respondent's removability (l.J. at 11). In
paicula, the record refects tat there is no basis fr fnding that the agents had any inforation
on the Fors 1-213 ad I-215c pror to the arest in the respondent's home. The Immigration
Judge fher obsered that the crime, fngerrint, and investigative searches revealed no pre
existing record or warants fr the respondent. Cf People v. Tolentino, 926 N.E.2d 1212,
1214-15 (N.Y. 2010) (citing INS v. Lopez-Mendoza, supra, fr the proposition that the identity of
a defendant is never suppressible a the fit of an unlawfl arrest and holding that since the
defendant's identity led to the discover of his DM records, tose records were likewise not
suppressible as such "records had been compiled independently of defndant's arest") (emphasis
added), cert. ganted, 131 S. Ct. 595 (2010), cert. dismissed, 131 S. Ct. 1387 (2011).
Additionally, the DHS does not appear to appreciate the Immigration Judge's observation
that the respondent does not seek to suppress his identity or his birthdate (I.J. at 12 n.8), but the
evidence of his alienage, which he contends stems fom his unconstitutional arrest and detention.
Further, as deterined by the Immigation Judge, te DHS confates the issues of identity and
alienage and fails to recognize that cous have teated these as separate and not interchangeable
elements (l.J. at 12). See INS v. Lopez-Mendoza, supra, at 1039 (noting that "the [DHS] must
show only identity and alienage; the burden then shifs to the respondent to prove the time, place,
ad maner of his ent") (emphasis added); Almeida-Amaral v. Gonzales, supra, at 234; Matter
ofSandoval, supra, at 79; see also Puc-Ruiz v. Holder, 629 F.3d 771, 777 n.l (8t Cir. 2010)
(noting tat "Puc-Ruiz is not seeking to' suppress his identit, but rather evidence relating to his
alienage, which is suppressible"). Te Immigation Judge obsered that if virly all
biogaphcal statements by the respondent were considered ''identity evidence," the doctine
would become the exception that defats the rule.
The DHS also implies that the custodial interogation should be viewed separately fom the
respondent's arest ad argues the respondent has not put frth evidence refting or contadicting
the information contained in the Forms I-213 and 215c (DHS' Br. at 15). However, it ha failed
to show that the inforation obtained during the arrest and detention wa not a continuation of
the coercive conduct exhibited by the agents at te respondent's home (DHS's Br. at 14-15).
See, e.g., Singh v. Mukey, 553 F.3d 207, 214-16 (2d Cir. 2009) (notng that "[i]t is well
established that the Fifh Amendment afrds aliens due process of law during deportation
proceedings" and fnding that the petitioner's statements-which were obtane afer ofcers
took contol of his ca and peraent resident card-should have been suppressed as te
conditions of his interogation underined the reliability of those statements); Matter ofToro,
supra, at 343 (stating "[t]o be admissible in deportation proceedings, evidence must be probative
ad its use fndamentally fair so as to not deprve respondents of due process of law as mandated
by the ffh aendment''); see generally Lopez-Rodrigez v. Muksey, supra, at 1018 ("The
statements sought to be suppressed were obtained fom Gastelum ad Lopez [while in] custody
[ad] immediately fllow[ed] the unconstitutonal ent of teir residence.").
To the extent that the DHS argues that the Fors 1-213 and I-215c ae reliable documents
that should be admitted into evidence as they are sufciently attenuated fom the respondent's
ar est (DHS's Br. at 15; Exhs. 2(ID), 3(ID); Tr. at 81), it has filed to show any eror in the
7
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
.
.
A097 535 400
Immigation Judge's deterination that the respondent's statements during his custodial
interogation-which directly led to the infrmation contained in the Forms 1-213 and
I-215c-were obtained through a "egegiously unlawfl search and seizure" (l.J. at 11 ). See
Matter ofGomez-Gomez, 23 l&N Dec. 522 (BIA 2002) (absent sufcient evidence that a For
1-213 contains infration that is inaccurate or obtained by coercion or duress, the document is
inherently torthy and admissible as evidence to prove alienage or removability).
In light of the fregoing, we agee with the Immigation Judge's conclusion that the OHS
failed to demonstate that any of the evidence it profered was sufciently independent or
attenuated fom the illegal home raid and arest so as to be fee of the taint of the egregious
Fourth Aendment violations at the respondent's home (l.J. at 11-12). As such, we ae not
persuaded by the DHS' contention that it met its burden of demonstating the respondent's
alienage such that the burden shifs to the respondent to establish by clear and convincing
evidence that he either is "lawlly in the United States pursuant to a prior admission" or is
"clearly and beyond a doubt entitled to be admitted to the United States and [is] not inadmissible
as chaged" (OHS' Br. at 13-16). See Cotzoja v. Holder, --- F.3d ---, 2013 W 3927605 (2d Cir.
July 31, 2013); Pretzantzin v. Holder, --- F.3d ---, 2013 WL 3927587 (2d Cir. July 31, 2013);
8 C.F.R. 1240.8(c); see also section 240(c)(2) of the Act, 8 U.S.C. 1229a(c)(2).
In sum, we afr the Immigration Judge's decision that the respondent established that the
circumstaces surounding his detention, ar est and interogation were sufciently egegiou to
warant a grant of his motion to suppress and that the OHS presented insufcient admissible
evidence to suppor the chages of removability, such that the proceedings should be terinated.
Contary to the DHS' arguments on appeal, we conclude that the Immigration Judge's
well-reasoned decision contains no clear eror in its description of the relevat fcts in this
matter ad that it corectly aalyzed the dispositive legal issues pursuat to binding case law ad
legal authority. As such, we conclude that the Immigation Judge properly adjudicated the
respondent's motion ad provided a fndamentally fair hearing to all parties, ad that the OHS
has not come frard with ay valid basis to reverse her decisio
n
or to remad the matter fr
additional proceedings. 5
Accordingly, the fllowing order will be entered.
5 We note that neither the Immigation Judge nor the Board may prevent the OHS fom
initiating removal proceedings against the respondent in the fture based on gounds unelated to
the respondent's unlawful search ad seizure fom April 17, 2007. Further, whle we are
dismissing the OHS' appeal of the Immigation Judge's decision, the respondent has not obtained
a lawfl basis to remain in the United States as a result of these proceedings. We also note that
in light of the above determinations, we need not reach the OHS' remaining aguments,
icluding the contenton that the Imigation Judge improperly relied on unpublished cae law
in frulating her decision. See Matter o/Santos, 19 l&N Dec. 105 (BIA 1984).
8
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)

..
e r a
. .
A097 535 400
ORDER: Te OHS' appeal is dismissed.
FOR TE BOAR
%
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Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)
P . ?WN
UNITED STATES DEPARTMENT OF JSTICE
EXCUTIVE OFFICE FOR IMMIGRTION REVIEW
UNITED STATES IMMIGRATION COURT
201 VARICK STRET
NEW YORK, NEW YORK
July 1, 2011
In the Matter of:
IN REMOVAL PROCEEDINGS
IXPEC CHITAY, Miguel
A 097-535-400
Respondent
CHARGE: INA 212(a)(6)(A)(i)Present without admission or parole
APPLICATIONS: Motion to suppress; termination
ON BEHALF OF THE RESPONDENT
Peter Markowitz, Esq.
Immigration Justice Clinic
Cardozo School of Law
55 Fifh Avenue
New York, NY 10003
ON BEHALF OF DHS
Tanya Bronsteen
Assistant Chief Counsel
201 Varick Street, Room 1130
New York, NY 10014
DECISION AND ORDERS OF THE IMMIGRATION JUDGE
I. PROCEDURAL HISTORY
Miguel Ixpec Chitay ("the Respondent") was arested by Immigration and Customs
Enforcement ("ICE ") agents at his home in Riverhead, New York, on April 18, 2007. Tat same
day, he was tansported to Manhat, questioned, and personally sered a Notice to Appear
(''NTA"). The NTA alleged that the Respondent was a citizen of Guatemala and charged him
with removability under section 212(a)(6)(A)(i) of the Immigration and Nationalit Act ("IA"
or "Act"). [Exh. l .]
The Respondent appeared befre the Court and, through counsel, denied the allegations
and charge in the NT A. The Deparment of Homeland Security ("DHS") profered For I-213,
Record of Inadmissible/eportable Alien, and Form I-2 l 5c, Record of Swor Statement, in
support of its burden to prove the Respondent's alienage by clear and convincing evidence.
[Exhs. 2(ID) ad 3(1D).] On October 10, 2008, the Respondent fled a Motion to Suppress and
WI ?
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I
Terminate Proceedings, arguing among other things that DHS's evidence was gathered in
egegous violation of the Fourth Amendment, and therefre should be suppressed and
proceedings against him terinated. The Cour directed DHS to fle any warant fom the arest,
infration on the circumstances of the home enty, and a list of any DHS witnesses in the case.
On December 18, 2008, DHS fled an opposition memo and additional alleged evidence,
including a document purorting to be the Respondent's birth cerifcate fom Guatemala. [Exh.
40(1D).] At that time, DHS indicate that it was no longer relying on the 1-213 or I-215c as
proof of alienage and was only relying on the birth certifcate. The Court noted that DHS had
not submited evidence of how the birth certifcate was obtained, nor had it fled a list of
witesses. The Court also instcted DHS to be prepared with any rebuttal witnesses or
statements fr the next heang, as the legal and fctual issues were clear, and the Court could not
guarantee that it would schedule additional individual hearngs in the case.
On April 20, 2009, the Respondent testifed in support of his motion. DHS indicated that
it was relying on the I-213 and 1-21 Sc, in addition to the birth certifcate, as proof of alienage.
DHS also questioned the Respondent directly, although he invoked his Fifh Amendment right
against self-incrimination and declined to answer questions about his alienage. For the reasons
outlined below, the Court will gant the Respondent's motion and terminate the proceedings
without prejudice.
II. EXHIBITS
The fllowing documents were admitted into evidence or marked fr identifcation:
Exh.1:
Exh. 2 (ID):
Exh. 3 (ID):
Exh. 4:
Exh. 5 (ID):
Exh. 6 (ID):
Exh. 7 (ID):
Exh. 8 (ID):
Exh. 9:
Exh.10:
Exh.11:
Exh.12:
Exh. 13 (ID):
Exh. 14 (ID):
Exh. 15 (ID):
Exh. 16 (ID):
Notice to Appear (sered Apr. 18, 2007);
For 1-213, Record oflnadmissible/Deportable Alien, fr the Respondent
(Apr. 18, 2007);
For 1-21 Sc, Record of Swor Statement, fr the Respondent (Apr. 18,
2007);
Afdavit of the Respondent;
Afdavit of Carlos lxpec Chitay;
Afdavit of Hector Batzin;
Afdavit of Francisco Reyes;
Afdavit of Cristobal lxpec Chitay;
Photogaphs of door inside the Respondent's apartent;
Photogaph of the Respondent's bedroom window;
Photogaph of the Respondent's kitchen window;
Photogaph of outside of the Respondent's apartent;
Sample For 1-213;
Declaration of Nassau County Police Commissioner Lawrence Mulvey
(Sept. 9, 2008);
Letter fom Lawrence Mulvey to ICE Resident Agent in Charge Joseh
Palmese (Sept. 27, 2007);
Letter fom Nassau County Executive Tomas Suozzi to DHS Secretary
Michael Chertof (Oct. 2, 2007);
2
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Exh. 17:
Exh. 18:
Exh. 19:
Exh. 20:
Exh. 21 (ID):
Exh. 22 ():
Exh. 23 (I):
Exh. 24 (ID):
Exh. 25 (ID):
Exh. 26 ():
Exh. 27 ():
Exh. 28 ():
Exh. 29 (ID):
Exh. 30 ():
Exh. 31 (ID):
Exh. 32 ():
Exh. 33:
Exh. 34:
Exh. 35 (I):
Exh. 36 (ID):
Exh. 37:
Exh. 38:
Exh. 39 (ID):
Exh. 40 ():
Exh. 41 ():
Exh. 42 (ID)
Exh. 43:
Exh. 44 ():
Exh. 45 (ID):
Exh. 46 (ID):
Exh. 47 (ID):
Exh. 48 ():
Exh. 49:
Exh. SO:
DHS Ofce of Inspector General, An Assessment of United States
Imigation and Customs Enfrcement's Fugtive Operatons Teams
(Ma. 2007);
Letter fom DHS Secretary Michael Chertofto Sen. Chstopher Dodd
(J1e 14, 2007);
Redacted excert oflCE Detention and Deportation Ofcer's Field
Manual (Aug. 21, 2003);
DHS Ofce oflmmigration Statistics, 2006 Yearbook of Immigation
Statistics;
Declaration of Beatiz Velasquez;
Declaration of Sonia Bonilla;
Declaration of Elder Bonilla;
Declaration of Carlos Lopez-Ramos;
Declaation ofYanet Martinez;
Declaation of Dionisio Chicas Moran;
Declaation of Adres Villa-Duran;
Declaation of Jose Duran-Martinez;
Declaation of Maa Ramos;
Declaration of Hector Mejia;
Declaration of Javier Montes-Flores;
Declaration of Gonzalo Juaez;
Proposed legislation, S.3594, l lOth Cong. 2d Sess., regarding immigration
arrests and detentions;
Letter fom Sens. Joseph Lieberan, Chis Dodd, and Rosa DeLauro to
DHS Secretary Michael Chertof (June 11, 2007);
Open letter fom clergy regarding ICE raids (May 15, 2007);
Complaints in fderal lawsuit regarding alleged Fourth Amendment
violations in ICE home enfrcement actions;
News articles regarding ICE enfrcement actons;
Law review articles regarding ICE actions and possible Fourh
Amendment violations;
Amended Stipulation and Order in Families fr Freedom v. ICE (Sept. 18,
2008);
Birt certifcate fom Guatemala with tanslation;
For I-213 fr Calos Ixpec Chitay (issued Apr. 18, 2007);
R sheet fr Carlos Chitay;
Administrative Warant fr Carlos Ixpec Chitay (issued Apr.18, 2007);
Guatemalan consular ID card fr the Respondent;
Guatemalan driver's license fr the Respondent;
Afdavit of ICE Supervisory Detention and Deortation Ofcer Daren
Williams (siged Oct. 24, 2008);
Afdavit of Bess Chiu (siged Mar. 12, 2009);
Vide fotage oflayout of the Respondent's aparent;
ICE Memoranda regarding Fugtive Operations case load priority (Jan. 22,
2004);
Migation Policy Institute, Collateral Damage: An Examination of ICE's
3
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Exh. 51:
Exh. 52:
Exh. 53:
Exh. 54:
Exh. 55:
Exh. 56:
Exh. 57:
Fugtive Operations Proga (Feb. 2009);
Floor plan of the Respondent's apaent on April 18, 2007;
Floor pla of the Respondent's aparent on Aprl 18, 2007 with
descriptive marking made durng testimony;
Cadozo Imigrant Justice Clinic: Constitution on ICE: A Reor on
Immigation Home Raid Operations (2009);
Immigation Cour and Boad of Immigation Appeals decisions on
motions to suppress;
ICE Memorandum on National Fugitve Operations Progam (Dec. 8,
2009);
Additional Immigation Court decisions on motions to suppress;
Additional law review articles regarding Fourth Amendment adjudication
in imigation cous.
III. TESTIONY
The Respondent testified tat on April 18, 2007, he lived at 110 Union Avenue,
Riverhead, New York. The apaent is a tee bedroom-unit on te gound foor of a house,
and on that date the apartment was occupied by seven men. He slet in a bedroom with three
oter individuals: his brothers Carlos and Crstobal, and another person named Orlando. 1 The
three brothers had beds, and Orlando, who had only been staying there about eight days, slet on
a small mattess on the foor. A second bedroom was empty, and had a locked door.
2
A third
bedroom was used by men named Francisco Reyes, Hector Batzin, and Felix.
3
The Respondent
stated tat the residents of te house would lock te font door at night, and would usually check
that the windows were closed, but did not always check.
At about 5:00 in the moring on Aprl 18, the Respondent was in his bed, awake because
the phone had rng a little earlier and woken him up. He stated that he head te noise of cars
ar iving, and thinks a couple of cars came up onto te driveway next to the house, while more
cas stayed by the font of the house. Tere was a window next to the Respondenfs bed with a
blind on it, and the Respondent moved the blind to te side and looked out. He saw people
getting out of the cars and running around the house. The Respondent remained in bed and
covered his fce. He heard aggessive voices speaking in English, saying, "Police, police, open
the door!"
Te Respondent testifed that there was an air conditioner in te window next to his bed.
While his head was under the covers, te air conditioner fll, and the window was raised up. A
agent hit him on the head with a heavy metal fashligt three times. The Respondent took his
head out fom under the covers and saw te agent with the fashlight, who told him to get up and
open the door. He stated that te agent's body was half inside his room and half outside the
house. The Respondent testifed tat he later had a large brise on his head fom the fashligt,
although he did not know why tis detail was not in his written statement.
1 Tis bedroom is marked a Bedroom# I on te foor plan i [Ex. 52.)
2 Marked as Bedroom# 2. Id.
3 Marked a Bedroom# 3. Id.
fMf. PW
4
Wf WM: ::: - v * ....... . . i.o.i . . . . . . .u. .~ . :.
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The Respondent stated that he did not get up, but his brother Carlos went out to the
kitchen, leaving the bedroom door open. The Respondent heard another agent's voice, which
sounded like it was by or near the kitchen window. He could not see the aget fom where he
was i bed. The voice was very aggessive, and screamed at Carlos, "Open the door, open the
door!" The Respondent stated that Carlos later told him tat te agent had one fot inside and
one fot outside the window. He later stated that Carlos told him the agent came completely
inside the ktchen.
The Respondent saw Carlos open the font door. A he was removing the latch, agents
"pushed him over" and came into the house. He testifed that he did not hear Carlos or any other
housemate gve peission to enter the home, nor did he hear any agent ask fr perission to
enter. The Respondent stated that the agent who had been at his own bedroom window climbed
back out and came in through the font door. He did not know how many agents in total entered
the home. He stated that fur agents came into his bedroom, one was in the kitchen, and the rest
were all over the house. He later estimated that there were more than ten agents in the house.
A agent gabbed the blaet of his bed, gabbed him by his shoulder, and got him up out of
bed. The agent then put plastic handcufs on the Respondent with his hands in font of him. Te
Respondent testife that befre he was handcufed, he did not say anything, and no agents asked
him any questions, read him any rights, or showed him any papers. He stated that he did not fel
fee to leave.
The Respondent stated that the agents took him to the kitchen. A he was moving toward
the kitchen, he saw an agent break down a door by kicking it in. This was the door to the second,
unused bedroom, which had been locked. Te Respondent also saw tat the kitchen window was
raised all te way up, and stated that it had been closed, but not locked, the night befre. Te
agents sat the Respondent down on the gound in the kitchen and talked on phones and radios.
Agents wee surounding the residents of the house as they sat on the gound. The Respondent
was stll handcufed, and stated that he did not fel fee to get up and leave.
The Respondent testifed that the agents asked him fr identifcation, and took him back
to his bedroom. They opened the drawers and looke inside. The Respondent does not know if
they obtained identifcation in the room or not. He stated that he never gave perission to search
his house, heard any housemate gve perission tosearch, nor heard any agents ask fr
perission to search. Afer the agents were done looking through the drawers, they took the
residents outside and put them in a van. The Respondent stated that the agents drove them to
Manhattan, althoug he only leaed where they were later. They were taken to a ofce, but he
did not kow the address. He stated that the trip took an hour ad a half or more.
The Respondent testifed that two agents asked him questions in the ofce, and stated
that they spoke very aggessively. He recogized the agents as having been in his house. The
questioning took place in English, which the Respondent mostly did not undestand, althoug
one of the agents did spea a litle Spanish. He stated that he siged a lot of papes in English,
and ageed that he had signed Exhibit 3(10). He testifed that the agents told him to sig quickly
so he could leave quickly, and also told him that if he did not sig quickly, he would be back in
the ofce in a month.
5
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The Respondent stated that he was never told that he was being arested or interviewed
on suspicion of being an alien not entitled to remain the United States, that he had the right to be
represente by counsel at no expense to the goverent, or that his statements might be use
against him in later administative proceedings.
IV. LEGAL STANDARDS AND ANALYSIS
4
I. Applicabilit of Exclusionary Rule in Removal Proceedings
As a preliminary matter, the Court declines to adopt DHS's lengthy argument that neither
immigation judges nor the Board of Immigation Appeals ("Boad") should rle on the merits of
motions to suppress fr Fourth Amendment violations.
5
DHS Brief at 12-27. These arguments
were recently rejected in detail by the Boad in Juan Calos Guevara-Mata, A97-535-291 (BIA
June 14, 2011) (unpublished), at 5-7. The Boad made clear, ad the Court agees, that
immigation courts are both able and required to protect respondents' constitutional rigts, and
that the Second Circuit expressly authorizes suppression in the case of egegous constitutional
violations. Almeida-Amaral v. Gonzales, 461F.3d 231, 234-35 (2d Cir. 2006); see also
Melnitenko v. Mukasey, 517 F.3d 42, 46-47 (2d Cir. 2008).
The Supreme Cour in INS v. Lopez-Mendoza generally precluded the use of the
exclusionary rle in removal proceedings, but lef open the question of whether evidence might
be suppressed ifthere were reason to believe that Fourth Amendment violations by immigation
agents were widespread, or ifthere were egegious violations of the Fourth Amendment which
underined fndamental firess or the probative value of the evidence. 468 U.S. 1032, 1050-
51 (1984). The Second Circuit took up the invitation in Almeida-Amara, holding that exclusion
of evidence is indeed approprate if the respondent establishes either "(a) that an egegous
violation that was fndamentally unfair had occured, or (b) tat te violation -- regadless of its
egegousness or unfairess -- underined the reliability of the evidence in dispute." 461 F.3d at
235.
In discussing whether there was an egegious violation, the Court considered two fctors:
the validity or invalidity of the seizure or goverent conduct (the ofensiveness of the action);
and the severity of the seizure or goveent conduct. Id. The Court fund that the
goverent's conduct in Almeida-Amaal's case was a Fourt Amendment violation, but not an
egregious one. Under the frst prong of the test, Almeida-Amaral was stopped without
reasonable suspicion, but not necessaily fr a reason as ofensive as his race; and under the
second prong, his seizure was very mild in nature and consisted only of being verbally ordered to
st9p by an ofcer. Id. at 236. Since the seizure itself was not sufciently severe, the baseless
stop could not be considered a egegious violation. Id. at 236-37. Te Court stated that severe
A it decides this case on other grounds, the Cour does not reach the Respondent's arguments regarding
suppression based on widespread constitutonal violations. See Resp. 's Post-Hearing Brief at 23-25. Te Cour
fds it most approprate to fcus on the specifc evidence regarding the Respondent's arest, which is dispositive of
the moton to suppress, instead of expanding the case's scope to a nationwide examinaton of ICE actions. The
Cour also does not reach the Respondent's arguments that proceedings should be terinated based on regulatory
violatons by ICE. Id. at 29-31.
5 The OHS brief repeatedly refr to immigration judges as "EOIR adjudicator." The title and authority of
immigraton judges is explicitly ganted by statute and regulation. INA 10l(b)(4); 8 C.F.R. 1240.1.
6
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seizures migt be particularly lengthy or include a show or use of frce, but was clear that it was
not providing "a exhaustive list of what might constitute an egegious violation of an
individual 's rights." Id. at 235 n. l , 236.
The respondent bears te burden of establishing a prima facie case fr suppression, which
must include detailed afdavits or other objective evidence. See Matter of Tang, 1 3 I&N Dec.
691 (BIA 1 971 ); Matter of Wong, 1 3 I&N Dec. 820 (BIA 1 971 ). If the respondent establishes a
prima facie case, the burden shifs to DHS to justif the manner in which it obtained the
evidence. Matter of Bacenas, 1 9 l&N Dec. 609, 61 1 (BIA 1 988).
II. Egregous Fourth Amendment Violatons i Respondent's Arrest
While unpublished Board decisions do not have precedential value, the Court notes that
Guevara-Mata, in which te Board upholds an IJ's gant of a motion to suppress and terinate,
deals with a case nearly identical to this one. The cases both involve te same city ad time
period (Riverhead, N, Mach-April 2007), frcefl home ent by multiple ICE agents without
warant or consent, handcufng residents befre asking them any questons or advising them of
rghts, warantless search of bedrooms and seizure of identifcation documents, tasportation to
Manhattan fr frther custodial interogation, and DHS intoduction of documents fom a freig
goverent, gathered a a result of the arest, as purorted "independent evidence" of alienage.
A097-535-291 at 2-4, 9- 1 0. Diferences in the fcts are discussed below; most notably, the home
enty in this case is more severe. The Court fnds the Board's decision in Guevara-Mata higly
relevant and persuasive, and adopts much of its reasoning.
A. Violatons i Home Entry, Seiure, and Search
I . Home ent without warrant or consent
The core of Fourth Aendment protection is the rigt to be fee fom unjustifed
goverent intsion into one' s home. See Payon v. New York, 445 U. S. 573, 585 ( 1 980). The
Repondent testifed creibly and consistently with his afdavit about the events of April 1 8,
2007, and based on the record, the Court fnds that such an unjustifed intusion took place. ICE
agents entered the Respondent's home not by legal means but by intimidation: by attempting to
crawl through te windows early in the moring, shouting at the residents to open the door, and
pushing their way through the door without warant or consent.
It is undisputed that the ICE agents did not have a judicially approved search or arest
warant on April 1 8, 2007; they had an administative war ant that allowed them to arest only
the Respondent's brother, Carlos. See [Exh. 43.J Therefre, ICE could have only legally entered
the apartent with valid consent, the existence of which is the goverent' s burden to prove.
United States v. Isiofa, 370 F.3d 226, 230 (2d Cir. 2004). ICE did not gain consent. I response
to agents coming in through his windows ad shouting to open the door, Carlos opene te door,
upon which the agents pushed their way into the apartment without perission. See id. at 233
(where numerous agents entered the limited-English petitioner's home, yelled at him, ad
"demanded" he consent to a search, no valid consent fund). The Respondent testifed that he
never heard a reuest to enter or anyone gating consent. A the agents entered, they stated in
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English that they were looking fr Carlos, and to their good frtune, Carlos promptly identifed
himself At this point, with their target standing unaed in the dooray, confring his
identity, ICE agents could have arested him and lef. Instead, multiple agents came frther
inside, and entered the apartent's bedrooms, where they encountered the Respondent.
DHS essentially concedes this sequence of events, but suggests that somehow Carlos
opening the door ad identifing himself migt have gven the ofcers the reasonable belief that
they could enter. DHS Brief at 44-45. The Court has no idea how this would constitute consent
to enter, and DHS cites no case in suppor of this proposition. At ay rate, DHS submitted no
statement fom any ofcer who was present tat states that agents believed they were given
consent. Te goverent's entry into the Respondent 's home was without enty warant or
consent, and violated the Respondent 's Fourth Amendment rights.
2. Seizure without reasonable suspicion
ICE's seizure of the Respondent was also a violation of the Fourth Amendment. The
Respondent testifed credibly that an ICE agent came into his bedroom, removed him fom his
bed, and handcufed him without even asking him any questions. The agent physically directed
h to the kitchen ad sat him down on the foor where he was surounded by other agents. This
easily constitutes a seizure. Cf Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. 2008)
(motion to suppress denied where petitioners were not seized, as they were not restained
physically or by a show of authorty).
DHS has not put frth any basis at all fr te seizure of the Respondent. It has not
claimed that the ofcers had a reasonable belief, based on specifc, articulable fcts, that the
Respondent was in the country illegally befre handcufng him. See 8 C.F.R. 287.8(b)(2).
The Court declines to fnd that the seizure was race-based; while it might have been, it also
migt have been out of general overealousness and the agents' desire to arest every person in
the house. As there are fw fcts in the record regarding the ofcers' motives, the Court fnds it
prdent to fnd only that DHS did not demonstate any reasonable suspicion fr seizing the
Respondent.
DHS's argument that its seizure of the residents of the apartent was "consistent with a
protective sweep of the premises" is totally inapposite to the legal standards fr prtective
swees. DHS Bref at 45. A swee is authorized when ofcers have reasonable suspicion that
the aea harbors dagerous persons, and is limited to a "cursory inspection" of places where
people might be hiding. Maland v. Buie, 494 U.S. 325, 335-36 (1990) (protective sweep is
"not a fll search of the premises"); see also United States v. Hassock, 631 F.3d 79, 86 (2d Cir.
2011) (noting conce that too generously constring this doctine will enable pretextual
war antless home searches). As noted befre, DHS has advanced no articulable fcts about its
beliefs regarding te home entry, ad instead of quickly aresting their target at the door, ICE
agets pushed past him to round up every person in the apartent, kicked in an interior door, and
searched through closets and drawers. The home raid can in no way be re-famed as a
"protective sweep."
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3. Search without warrant or consent
ICE' s war antless search of the Respondent's apartent also violated the Fouh
Amendment. Payon, 445 U. S. at 586 (stating that war antless home searches are presumptively
uneasonable). Afer handcufng the Respondent and the other residents of his apartent, ICE
agents asked fr identifcation documents, but did not allow the Respondent to retrieve them.
Instead, they searched through his bedroom without a warrant or his consent. They also appear
to have frceflly kicked and peranently damaged a door during their search. [Exh. 9.] The
Respondent testifed credibly tat he was not shown any papers and that he was never asked fr
consent to search, nor did he hear anyone else asked fr consent. There was also no evidence of
apparent exception, such as exigent circumstances, and fr the reasons above, the search met
none of the standards fr a protective sweep.
B. Egregiousness of Violatons
It is not enough fr the Respondent to establish that ICE violated the Fourh Amendment
in its raid on his aparent; he must also show that the violatons were egegous. The Court
fd that he has done so under the standards articulated by the Second Circuit. I Ameida
Amaral, the Court deterined that while the seizure of the petitioners lacked reasonable
suspicion, it was so mild in nature as to almost not be a seizure at all, as it consisted only of an
ofcer verbally orderng the petitioner to stop. 461 F.3d at 235. As a result, the ofensive
conduct was not combined with a severe enoug seizure to be deemed egegous. This case
presents a very diferent set of fcts.
The seizure of the Respondent was both highly severe and lengthy. ICE gained access to
the Respondent through a illegal home entry marked by ared agents partially or completely
crawling through the windows, hitting Respondent with a fashligt, shouting orders to the
residents to open the font door, and then entering the home without a warrant or even asking fr
perission to enter. Despite l eaing that the person who opened the door was actually their
target, ICE agents continued the operation and handcufed the Respondent in his bedroom
witout asking him any questions or infring him that he was under arest or had cerain rights.
ICE sat the Respondent and his roommates on the foor, handcufed and surounded by agents,
and then drove te to Manhattan fr interogation. The entire time in custody, fom the arest
shorly afer 5: 00 AM to the Respondent's release fom questioning in Manhattan, appears to
have been seven hours or more. See [Exh. 2(ID)] (showing the Respondent's For I-21 3 was
"received" at "1 200"); [Exh. 43(ID)] (showing the arest warant fr Calos was sered on him at
1 :00 PM). This is entirely diferent fom the brief roadside stop conidered in Almeida-Amaral.
465 F.3d at 235.
The severity of the seizure is then combined with the ofensiveness of the Fourth
Amendment violations - in this case, an illegal home entry where DHS has not submitted any
evidence that it believed in good fith that agents had consent to enter, and an arest and search
without any claim of probable cause or reasonable suspicion. Te picture painted by the record
of te events of April 1 8 demands serious justifcation or rebuttal; DHS submitted neither. The
Court, like that in Almeida-Aaral, does not fnd that the Respondent has proven a race-based
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seizure. Nevertheless, the violations were more severe than in Almeida-Amaral, due to the
intimidating ad coercive nature of the home enty.
Finally, the home enty, arest, and search in this case closely resemble the fcts in
Guevaa-Mata, where the Board upheld a fnding of egegiousness, with the diference that the
home entry here was even more frcefl and inherently coercive. A097-535-291 at 2-3, 1 0. The
Court therefre fnds that under the standards aiculated by the Second Circuit, the goverent
conduct in the Respondent's home was both legally baseless and highly severe, such that it
constitutes a egegous violaton warating suppression of the goveent's evidence.
Almeida-Amaral, 461 F. 3d at 235-36.
As the Respondent met his burden to make out a prima facie case fr suppression, the
burden shifs to the goverent to justif the manner in which the evidence was gathered.
Barcenas, 19 l&N Dec. at 611 . The Court was explicit with the parties that it would not hold
multiple individual hearings, and that since the fctual allegations were clea fom te
Respondent's submissions, OHS should submit potential witness statements or rebuttal evidence
in preparation fr the April 20, 2009 hearing so as to efectively use the parties' time. Prior to
that hearing, OHS submitted Exhibits 40(1D)-46(ID); however, OHS chose not to present any
witesses or submit ay rebuttal evidence about the events of April 18, 2007. 6 A such, the
Cour fnds that DHS did not justif the manner in which its evidence of alienage was obtained,
and will suppress all such evidence gathered as a result of the Respondent's April 18 ar est.
III. Admssibility of Birth Certifcate
A. Attenuaton and Independent Source Doctrine
The Supreme Court in Lopez-Mendoza noted that proving alienage ''will sometimes be
possible using evidence gathered independently of, or suffciently attenuated fom, the original
arest." 468 U. S. at 1 043. The goverent argues that Exh. 44(1), a birth certifcate, is
evidence that was gathered independently of the Respondent's arrest, and is sufciently
attenuated fom the events at his home as to not be considered "fit of the poisonous tee." See
Sega v. United States, 468 U. S. 796, 804 ( 1 984) (stating that the exclusionary rle extends to
indirect products of unconstitutional conduct). Te Court disagrees.
DHS is the pay who bears the burden of proving that evidence is suffciently attenuated
to be admissible. See Brown v. Illinois, 422 U.S. 590, 604 (1975); United States v. Og, 921
F.2d 442, 447 (2d Cir. 1990). The Cour has no evidence befre it explaining how or when DHS
obtained the certifcate, despite may opportunities fr OHS to fle affdavits or oter evidence.
Statements by counsel during hearings are not evidence. Matter of Laureano, 1 9 l&N Dec. 1 , 3
n.2 (BIA 1 983). Even those brief statements, however, indicated that the document appears to
have been obtaine through direct reliance on the 1-213, which if tre, would be a clear example
of"fit of the poisonous tree."
6 Exhibit 46(1D), an afdavit ofICE Supervisory Detention and Deportation Ofcer Daren Williams, which makes
general statements about ICE enfrcement operations in New York in 2007, does not constitute rebuttal evidence,
since the author expresses no personal kowledge of the operation at the Respondent's house, and w not available
fr cross-examination.
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The Court has no basis fr fnding that the document was gathered indeendently of the
infnation on the 1-21 3 and I-21 5c, especially since OHS admitted that it did not have any
records fr the Respondent befre the arest in his home and its database checks ted up no
pre-existing criminal or other records. See Guevara-Mata. A097-535-291 at 7-8 (rejecting
evidence because OHS failed to show how freign identty documents were independent
evidence, since it appeared OHS had no knowledge of the respondents befre the illegal ar est
and requested the freig documents only afer leag the respondents' nationalities durng the
interogaton.); compare Matter of Cerantes-Torres, 21 l&N Dec. 351 , 352-53 (BIA 1 996)
(fnding independent evidence of removability where the respondent had voluntarily submitted
his employment authorization card to the Court). OHS is corect in arguing that attenuation
analysis is ofen more complex than fnding a simple ''but-fr" connection between the
constitutional violation ad evidence later obtained. Hudson v. Michigan, 547 U. S. 586 (2007).
Te Court does not need to engage in lengthy analysis, however, because OHS filed to
demonstate that the birh certifcate was independent and not a direct result of the home raid,
and thus faile to meet its burden of proof
A fr the other evidence profered by OHS, none of it has been shown to be fee of the
taint of the egegious Fourth Amendment violations at te Respondent' s home. OHS has not
argued tat the 1-21 3 or I-21 5c constitute independently acquired evidence.
7
B. Use of Identt Evidence
I a relate argument, the goverent claims that it may intoduce the birth certifcate
because it was obtained throug the use of identity evidence, which is never suppressible.
Lopez-Mendoza, 468 U. S. at I 039. While it is true that a person' s identity is not suppressible,
Respondent does not seek to suppress the basic fct that he is Miguel lxpec Chitay. The Second
Circuit has not defned "identity evidence," but other circuits have made clea that is it simply
evidence establishing who a person is. See United Statesv. Farias-Gonzalez, 556 F.3d 1 1 8 1 ,
1 1 87 (1 1 th Cir. 2009) (suppression of all evidence would "penit a defndant to hide who he
is."); United States v. Guzman-Brno, 27 F.3d 420, 421 (9th Cir. 1 994) (affning suppression of
all the defendant's statements except "the initial admission of his name"). The notion that
identity is not suppressible is primarily a jurisdictional doctrine, meant to keep individuals fom
claiming that they cannot even be sum oned to court because they were unconstitutionally
arested. Lopez-Mendoza. 468 U. S. at 1 039-40; see also Farias-Gonzalez, 556 F.3d at 1 1 85
(1 1 th Cir. 2009) (ageeing that the Lpez-Mendoza Cour was "addressing a jurisdictional
challenge."). Here, it is undisputed that the Respondent has been physically present ad
admitted his name at every hearing.
OHS has asserted that "identity evidence" encompasses much more tha a person's
physical presence and name. The Cour is unaware of any case fom the Board, Second Circuit,
or Supreme Court that holds that "identity" actally means proof of place of birh, names of
paents, number and naes of siblings, or other broad categories of evidence, such as those
DHS has also not submitted evidence on how it obtained the identifcation cards in Exhibits 44(1) and 45(I),
although DHS did not explicitly claim these exhibits as proof of alienage. To avoid any confsion in the event of an
appeal, the Court does not fnd any of the goverent's evidence admissible as proof of alienage.
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contained on the 1-21 3 and Record of Swor Statement. I fct, the Court is unaware of any
federal court that has interreted the doctne this broadly, and DHS's briefng does not provide
suppor fr its asserion.
8
The Ninth Circuit in Guzan-Brno specifcally declined to suppress
the defendant's admission of his name while suppressing the rest of his statements, including his
place of birth, as fit of an illegal arest. 27 F. 3d at 41. This is consistent with a view that
identty evidence is "inherently diferent fom other kinds of evidence," instead ofDHS's view,
which confates identity evidence with evidence of alienage and removability. United States v.
Del Toro Gudino, 376 F.3d 997, 1001 (9th Cir. 2004); see Matter of Sandoval, 1 7 l&N Dec. 70,
79 (BIA 1 979). If virtally any biogaphical statements by respondents were considere
"identity evidence," the doctine would become the exception that defats the rule. Such an
approach would seriously undermine Almeida-Amaral and the possibility of suppression in the
Second Circuit, which this Court has neither the power nor the desire to do.
Aside fom these problems, the Court has no proof that OHS actually acquired the birth
certifcate only through the use of identity evidence, as opposed to through the use of all the
infration it gathered fom the illegal arest. This is because, as discussed reeatedly, DHS
declined to submit any evidence of how ad when the birth certifcate was obtained, despite the
Court's direct requests. The Court fnds that the alleged birh certifcate is not sufciently
attenuated or independent fom te constitutional violations in this case so as to be fee of the
taint of illegality. In addition, DHS did not show that it was obtained only through non
suppressible "identity" evidence. Accordingly, the Court will suppress Exhibit 40(1), along
with the rest of the goverent's evidence.
IV. CONCLUSION
In light of the fregoing, the fllowing orders shall be entered:
ORDERS
IT IS HEREBY ORERED that the Respondent's Motion to Suppress be GRANTED.
IT IS FURTHER ORDERED that removal proceedings against the Respondent be
TERMINATED WITHOUT PREJUDICE.
1
Dat
=
8 Te Sixth Circuit h on one occasion considered a criminal defndant' s date of bir to be non-suppressible
identty evidence, which was used along wt his name only to r a standard police check and fnd an outstanding
warant. United States v. Navaro-Chalan, 420 F.3d 581 (6th Cir. 2005). The Cour expresses no opinion on this
view, but notes that the Respondent h not sought to suppress his date of birth.
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