BIA Holds That Where An Immigration Judge Finds That A Traffic Stop Was Nothing More Than A Routine Law Enforcement Action, A Respondent Has Not Established A Prima Facie Case Of A Fourth Amendment Violation – Much Less An Egregious Violation – And Is Not Entitled To A Hearing On A Suppression Motion. Matter Of Barcenas, 19 I&N Dec. 609 (BIA 1988), Followed. Unsupported Assertions And Speculation Have No Evidentiary Value And Are Insufficient To Establish A Prima Facie Case That An Investigatory Stop Was An Egregious Violation Of The Fourth Amendment, And Thus They Do Not Warrant A Suppression Hearing.
On December 9, 2022, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of a ruling by the Immigration Judge (IJ) denying Respondent’s motion to suppress evidence and terminate removal proceedings; Respondent’s appeal also covered the IJ’s denial of a motion to terminate based on Pereira v. Sessions, 138 S. Ct. 2105 (2018).
ICE, conducting surveillance in an attempt to arrest a previously removed noncitizen with a final order of removal, saw a man who resembled their target and stopped him (Respondent) and his son. In a declaration made as part of his motion to suppress, Respondent claimed the ICE officers presented him and his son with a photo of a man and he told them he did not know the person in the photo. The Form I-213 Record of Deportable/Inadmissible Alien stated that the officers then asked Respondent and his son for identification. The son showed a Mexican identity document but Respondent had no I.D. Per the I-213, Respondent and his son “then admitted they were unlawfully present in the United States.” The two were then arrested and brought to an ICE office.
Respondent’s declaration states that while officers there asked various questions and fingerprinted him, they never asked if he was lawfully in the U.S.; he also claimed he was never advised of his rights to remain silent and hire an attorney and that he “felt compelled to answer the questions” he was asked. Prior to his release, DHS served Respondent with a notice to appear (NTA) that scheduled a future removal hearing at a date and time to be set. The NTA alleged Respondent had entered the U.S. without inspection and admission and charged him with removability under INA §212(a)(6)(A)(i), as one present in the U.S. without admission or parole. (The I-213 also revealed that Respondent had previously been voluntarily returned to Mexico.)
Before the IJ, Respondent moved to suppress the I-213, which contained evidence that he was not a lawful permanent resident or U.S. citizen and supported the allegations and charge of removability; he claimed DHS obtained this evidence through an egregious violation of his rights under the Fourth Amendment of the United States Constitution – specifically, that ICE officers knowingly stopped him based on his apparent ethnicity without any reasonable suspicion that he was unlawfully present in the U.S. He also claimed DHS violated his rights under the INA and governing regulations “by conducting a warrantless arrest and failing to advise him of his right against self-incrimination.” Lastly, he alleged that the I-213 was unreliable and that he should be allowed to cross-examine the arresting ICE officers and anyone else involved in his seizure and custodial interrogation.
The IJ denied the motion to suppress and to terminate proceedings; although Respondent did not submit any applications for relief, he was granted voluntary departure per INA §240B(b)(1). On appeal, he challenged the denial of the motion to suppress as well as the IJ’s denial of the motion to terminate based on Pereira, arguing that the NTA did not vest the IJ with jurisdiction over the proceedings because it did not specify the time and date of the initial removal hearing. In a footnote, the BIA found that this argument was foreclosed by binding precedent, United States v. Bastide-Hernandez. 39 F.4th 1182 (9th Cir. 2022) (en banc).
In beginning its analysis regarding the admission of evidence in immigration proceedings, the Board noted that the sole test for admission of evidence is whether it is probative and the admission fundamentally fair. Here, stated the opinion, the IJ had properly found the I-213 to be probative of Respondent’s lack of immigration status and the allegation in the NTA that he is a native and citizen of Mexico. The form was also found to be probative of his removability under §212(a)(6)(A)(i) because it reflected that he was present in the U.S. without permission.
Further concluded the BIA, the I-213’s admission was fundamentally fair. The decision explained that although Respondent alleged he felt compelled to answer the ICE officers’ questions, he presented no evidence that they used coercion to obtain any of the data in the form. Additionally, he did not deny making the statement memorialized in the I-213 regarding his unlawful status or the time, place and manner of his entry. His declaration therefore failed to cast doubt upon the reliability of the form. Nor did he show that the IJ’s decision to admit the I-213 and refuse permission to question the arresting officers had prejudiced him.
As to the exclusionary rule, the constitutional policy which, in some contexts, requires evidence obtained in violation of the Fourth Amendment, or derived from such a violation, to be excluded from judicial proceedings, the Board stated that it had previously held in a precedent decision that the rule “does not apply in civil immigration proceedings.” The U.S. Supreme Court had subsequently agreed with that holding, finding that the exclusionary rule only applies in immigration proceedings when evidence is obtained through “egregious violations of [the] Fourth Amendment . . . that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Similarly, the Ninth Circuit Court of Appeals, in whose jurisdiction this case arises, has held that the exclusionary rule applies in the immigration context where there is an egregious violation of the Fourth Amendment, i.e., evidence obtained by deliberate constitutional violations or conduct a reasonable immigration officer should have known is in violation of The Constitution.
Here, controlling circuit law requires that one who moves to exclude evidence under the Fourth Amendment establish a prima facie case before DHS is called on to “assume the burden of justifying the manner in which it obtained the evidence.” Matter Of Barcenas, 19 I&N Dec. 609 (BIA 1988). But, concluded the BIA, the IJ correctly found that Respondent had not made this showing. DHS was therefore not required to justify how it obtained the Form I-213 data and suppression under the exclusionary role was therefore not warranted.
The opinion next stated that the evidence in the I-213 was obtained as the result of a lawful investigatory stop: Immigration officers may “seize” an individual under the Fourth Amendment through a “temporary detention” to learn whether he or she is in the U.S. legally, as long as the officer can articulate objective facts providing a “reasonable suspicion” that the subject of the seizure was “illegally in this country.” The Board noted that physical characteristics “suggestive of ethnicity or ancestry” do not, standing alone, provide a reasonable basis to stop and question an individual regarding his or her immigration or citizenship status.
The instant record shows that the ICE officers who stopped Respondent “had reasonable suspicion to do so.” They were conducting surveillance seeking to arrest a previously removed individual with a final order of removal when they observed Respondent, who resembled the suspect; his resemblance to the person sought and “his presence in the same location where this persona resided” constituted “articulable, objective facts justifying a brief investigatory stop” to determine if Respondent was who they were looking for.
Respondent alleged the officers knew he was not their target when they showed him and his son the suspect’s photo and asked if he knew the individual in the picture and that the encounter should have thereafter terminated. But, concluded the BIA, the IJ was not required to accept this interpretation of the record; the court found the ICE officers believed Respondent resembled their target – a resemblance Respondent did not deny – and was present in the same place the suspect was thought to reside. These findings were not “clearly erroneous”; the officers had a “reasonable suspicion” that Respondent was the focus of their warrant. Additionally, after the officers asked for identification and Respondent’s son offered a Mexican identification document while Respondent said he had no ID, the facts supported the officers’ continued suspicion and “justified reasonably extending the length of the stop.”
Because there was no clear error in the IJ’s finding that the stop was a routine law enforcement action, the Board held that Respondent had not established “a prima facie case of a Fourth Amendment violation – much less an egregious violation“ and was therefore not entitled to a hearing on his suppression motion. Respondent’s argument on appeal that his detention “was the result of ‘unlawful racial profiling’” was not evidence. The decision explained that unsupported assertions and speculation have no evidentiary value and do not establish a prima facie case that this investigatory stop was racially motivated or an egregious Fourth Amendment violation. A suppression hearing with the attendant cross-examination of the ICE officers and the requirement that DHS justify how it obtained the I-213 information was thus not warranted.
Lastly, the BIA rejected Respondent’s contention that the I-213 should have been suppressed because the officers violated his statutory and regulatory rights. First, no violation of INA §287(a)(2), which permits an immigration officer to conduct a warrantless search if there is reason to believe the person arrested is unlawfully in the U.S. and is likely to escape before a warrant can be obtained, was found. There was “reason to believe” Respondent was present without inspection and admission, stated the opinion, when Respondent claimed he had no identification “and then made the uncoerced admission that he was unlawfully in the United States.” Second, Respondent’s argument that ICE violated 8 C.F.R. §287.3(c) by not advising him at the time of his warrantless arrest that any statement he made could be used against him in a subsequent proceeding is foreclosed by Board precedent; this regulation only requires immigration officers to advise a respondent of his or her right against self-incrimination after DHS has placed him or her in proceedings. Accordingly, the IJ properly admitted the I-213 into evidence. The appeal was dismissed and the grant of voluntary departure reinstated. Matter of Mariscal-Hernandez, 28 I&N Dec. 666 (BIA 2022).
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