Pinto-Montoya v. Mukasey
| Decision Date | 26 August 2008 |
| Docket Number | Docket No. 05-6541-ag. |
| Citation | 540 F.3d 126 |
| Parties | Efraulio PINTO-MONTOYA and Ismar Pinto-Montoya, Petitioners, v. Michael B. MUKASEY, Attorney General,<SMALL><SUP>*</SUP></SMALL> Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Jon E. Jessen, Stamford, CT, for Petitioners.
Shane Cargo, Assistant United States Attorney (Michael J. Garcia, United States Attorney, on the brief, Beth E. Goldman, Assistant United States Attorney, of counsel), United States Attorney's Office for the Southern District of New York, New York, NY, for Respondent.
Before: CABRANES, POOLER, and SACK, Circuit Judges.
Ismar and Efraulio Pinto-Montoya petition for review of an order of the Board of Immigration Appeals ("BIA") denying petitioners' motion for reconsideration of a prior BIA order summarily dismissing their appeal. See In re Pinto-Montoya, Nos. A78 428 273, A78 428 277 (B.I.A. Oct. 28, 2005); In re Pinto-Montoya, Nos. A78 428 273, A78 428 277 (BIA Aug. 11, 2005), aff'g In re Pinto-Montoya, Nos. A78 428 273, A78 428 277 (Immig.Ct.N.Y.City, Feb. 24, 2004). The Immigration Judge ("IJ"), after concluding that petitioners had not been stopped or seized by immigration officials during an incident at the airport, denied petitioners' motion to suppress the statements they made to the officials and ordered them removed. On appeal, petitioners argue that (1) their encounter with immigration officials at the airport was a seizure within the meaning of the Fourth Amendment; and (2) that the alleged stop was sufficiently "egregious" to justify suppression of the evidence obtained because petitioners were stopped solely on the basis of their race and nationality.
We conclude that petitioners' contact with immigration officials at the airport was not a seizure within the meaning of the Fourth Amendment because no force, threat of force, or other assertion of authority was used by the officials. Because petitioners were not seized, the statements obtained from petitioners by the immigration officials were properly admitted.
Petitioners, brothers who are natives and citizens of Guatemala, arrived at John F. Kennedy airport in New York on a flight from Los Angeles on February 8, 2001. As they disembarked from the plane, immigration agents in plainclothes approached them and asked them, in Spanish, about their immigration status. When petitioners admitted that they were in the United States illegally, the officers detained them and conducted additional questioning. As part of the questioning, both petitioners signed sworn statements conceding that they entered the United States unlawfully and were "in the United States in violation of U.S. immigration law."
Shortly after the events at the airport, the INS commenced removal proceedings against petitioners. Petitioners did not file applications for relief from removal or contest their status but, instead, moved to suppress the evidence obtained during their questioning at the airport on the basis that they had been stopped at the airport solely on the basis of their race and nationality. Respondents contended that petitioners were apprehended pursuant to a larger interdiction project conducted by the former Immigration and Naturalization Service ("INS"). In support of their position, respondents submitted a declaration from the agent who "signed off" on the form documenting petitioners' apprehension. Although the agent was not present when petitioners were interviewed and detained, he was the supervisor of the operation under which petitioners were selected for questioning.
The declaration explained that the INS, after "observ[ing] various trends in the routes taken by [aliens illegally smuggled into the country]," had developed a protocol for identifying and questioning suspected smugglers and their clients. Plainclothes agents would approach individuals as they were disembarking from a plane, ask whether they would be willing to speak to the agents, and permit them to walk away if they did not. If an individual agreed to speak to the agents, he would be taken to a separate area, where the agents would reveal their identities and ask him questions about his immigration status. According to the protocol, Individuals who "provided sufficient information to establish alienage and removability" would be taken into custody and transported to an INS office for processing. The agent described the criteria used in the protocol as follows:
In determining who would be identified for questioning, the protocol dictated that Agents look for passengers typically of Mestizo physical appearance (a person of mixed Spanish and American Blood [sic]) who would be inappropriately dressed in light of the season (i.e., they would not be wearing or carrying cold weather coats in the winter). The targeted people would also generally not have any baggage and bypass the baggage claim. They often would also carry airline issued food with them off the plane.
Petitioners arrived in New York on one of the flights identified by the INS as "likely to contain illegal aliens."
The IJ, after reviewing the parties' submissions on the appropriateness of suppression, held a hearing to take testimony from petitioners regarding the circumstances under which they were approached and questioned. Petitioners testified that they did not meet any of the criteria in the protocol other than choice-of-flight and racial characteristics; they were wearing jackets, had checked luggage, and did not take airline food with them. They further testified that, as they left the plane, they were approached by a man dressed in casual clothing who asked if they had "papers" and inquired whether they had "permission to stay in this country." Both answered these questions in the negative. Ismar Pinto-Montoya stated that he answered the questions rather than walking away because the individual asking the questions was standing in front of him and "could have pulled [him] back." Efraulio Pinto-Montoya stated that he agreed to speak with the agent because other passengers from the plane — all of whom were described by the Pinto-Montoyas as "Spanish" — were being questioned at the same time. Both petitioners testified that the immigration officials did not identify themselves as such until after petitioners admitted that they were in the country illegally. Petitioners were then transported to another location where they were questioned by the same agents and signed the statements conceding their unlawful entry.
Based on petitioners' testimony, the IJ concluded that the petitioners' contact with immigration officials at the airport was not a stop or seizure because they spoke to the agents voluntarily.
[Petitioners] did not testify to any actions by the agent[s] that would be intimidating. There was no testimony that voices were raised or that threats were made. No one told [petitioners] that they had to answer the question[s] or that certain consequences would flow from not answering the questions.
The IJ also observed that the circumstances, as described by petitioners, were such that a reasonable person would have believed himself free to leave: the officers were in plainclothes, did not identify themselves as immigration officials and had no other physical indicia — for example, badges — identifying them as law enforcement officials. As the IJ noted: "For all [petitioners] knew the person who asked them about their status was a civilian...." The IJ further concluded that even if petitioners had been seized within the meaning of the Fourth Amendment, their detention and questioning was not so "egregious" as to justify suppression.
The BIA summarily dismissed petitioners' appeal, and petitioners filed a motion for reconsideration of that decision. After determining that "there was no stop or seizure at the airport" and that there was "nothing unreasonable or egregious about the officer[s'] encounter with the [petitioners]," the BIA denied petitioners' motion for reconsideration.
"When the BIA briefly affirms the decision of an IJ and adopts the IJ's reasoning in doing so, we review the IJ's and the BIA's decisions together." Wangchuck v. Dep't of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006) (alteration and internal quotation marks omitted). We review the agency's legal conclusions de novo, see Yi Long Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007), and its factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007).
Our immigration laws permit an immigration official to "interrogate" without a warrant "any alien or person believed to be an alien as to his right to be or to remain in the United States." 8 U.S.C. § 1357(a)(1). The applicable regulations governing "interrogation and detention not amounting to arrest," 8 C.F.R. § 287.8(b), state that
(1) Interrogation is questioning designed to elicit specific information. An immigration officer, like any other person, has the right to ask questions of anyone as long as the immigration officer does not restrain the freedom of an individual, not under arrest, to walk away.
(2) 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.1
Petitioners' claim raises the question of whether the exclusionary rule applies in immigration proceedings at all and under what circumstances it might apply. In...
To continue reading
Request your trial
-
United States v. McDow
......at 470, 100 S.Ct. 1244 ; citing Wong Sun , 371 U.S. at 484, 83 S.Ct. 407 )); Pinto – Montoya v. Mukasey , 540 F.3d 126, 130 (2d Cir.2008) ("In criminal proceedings, evidence obtained as a result of an illegal seizure .. is, of course, ......
-
Floyd v. City of N.Y.
...credible. 624.See id. at 2636–2637. 625.See id. at 2638–2641. 626.See id. at 2641–2642. 627.See id. at 2643. 628.Pinto–Montoya v. Mukasey, 540 F.3d 126, 132 (2d Cir.2008) (discussing Delgado, 466 U.S. at 218, 104 S.Ct. 1758). 629.Id. (citing Brendlin v. California, 551 U.S. 249, 254, 127 S.......
-
U.S. v. Singleton
...... or in another public place, by asking him if he is willing to answer some questions, [and] by putting questions to him"); accord Pinto-Montoya v. Mukasey, 540 F.3d 126, 131-32 (2d Cir.2008). Thus, there was nothing untoward about Coniglio's initially approaching Singleton and asking if he ......
-
Singh v. Mukasey
...... of evidence is appropriate "`if record evidence established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that the violation—regardless of its egregiousness or unfairness—undermined the reliability of the evidence in dispute.'" Pinto-Montoya v. Mukasey, 540 F.3d 126, 131 (2d Cir.2008) (quoting Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006)). Even assuming that the conduct here was not "egregious," it nonetheless "undermined the reliability of the evidence in dispute." Almeida-Amaral, 461 F.3d at 235. . ......