713 F.3d 916 (8th Cir. 2013), 11-3860, Carcamo v. Holder
|Citation:||713 F.3d 916|
|Opinion Judge:||RILEY, Chief Judge.|
|Party Name:||Juan Alberto MARTINEZ CARCAMO and Roberto Carlos Garcia Nu|
|Attorney:||Colin Flynn Peterson, argued, Minneapolis, MN, Benjamin R. Casper, West St. Paul, MN, Rachel E.B. Long, St. Paul, MN, on the brief, for Petitioner. Suzanne Nardone, argued, Washington, DC, for Respondent.|
|Judge Panel:||Before RILEY, Chief Judge, COLLOTON and GRUENDER, Circuit Judges.|
|Case Date:||April 19, 2013|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Submitted: Oct. 16, 2012.
[Copyrighted Material Omitted]
In an early morning immigration raid, United States Immigration and Customs Enforcement (ICE) officers entered the trailer home of Juan Martinez Carcamo (Martinez) and Roberto Garcia Nuñez (Garcia) without a warrant and, according to Martinez and Garcia, without consent. The officers arrested both men, and the government began removal proceedings. An Immigration Judge (IJ) denied Martinez's and Garcia's motions to suppress the evidence uncovered by the warrantless entry. In her order, the IJ conflated Martinez's testimony with that of his son, Jorge Martinez Reyes (Jorge). Martinez and Garcia appealed to the Board of Immigration Appeals (Board) after the IJ ordered them removed from the United States. The Board dismissed their appeal in an order which repeated the IJ's error.
Both the IJ and Board found the officers' warrantless entry justified by exigent circumstances solely based on Jorge's yell to Garcia " not to open the door" because immigration officers were outside. Martinez and Garcia petition our court for review. Although we are troubled by the IJ's and Board's errors with respect to Martinez's testimony and by the ICE officers' alleged actions, the narrow scope of our review under 8 U.S.C. § 1252(b)(4) requires us to deny the petition.
Before approximately 6:00 a.m. on June 22, 2008, ICE officers— participating in " Operation Return to Sender" — knocked on the door of a trailer home in Shakopee, Minnesota, occupied by four Latino men: Martinez, Jorge, Garcia, and Garcia's father, Felix Garcia. The knocking awoke Jorge, who answered the door in his underwear. An ICE officer in plainclothes asked Jorge to come outside to check on his van. Jorge, thinking that a long ladder on his van might be " bothering somebody," stepped outside. The officer then asked Jorge for his license. Jorge said he had none. The officer told Jorge to go back inside to put on shoes and a shirt " because we're going to take you with us." By that point, Jorge noticed the officer's badge and the five other ICE officers surrounding the trailer. Jorge refused to go back in and yelled to Garcia " not to open the door, because it was Immigration." Jorge then tried to make a cell phone call, but the officers took the phone away, handcuffed him, and placed him in a van.
The noise woke Garcia, who looked out the window and heard someone bang on
the door. Garcia opened the door, which an ICE officer then pushed in. The officer showed Garcia a photo, and asked Garcia if he recognized the person in the photo. Garcia said he did not. The officer then identified himself as an immigration officer. According to Garcia, the officers entered the trailer without his consent. Martinez's U.S. Department of Homeland Security Form I-213 (" Record of Deportable/Inadmissible Alien" ), signed by Immigration Officer Allen D. Gay, noted " Garcia ... consented to the entry of ICE officers." Garcia's I-213 form, signed by Deportation Officer Scott Ludwig, said " Consent to enter the residence was given by Subject." Neither Gay, Ludwig, nor any ICE officer who entered the trailer testified at the suppression hearing. After entering the trailer, the officers arrested Garcia and put him in the van with Jorge.
Martinez, who was in one of the trailer's bedrooms, awoke to the sound of loud knocking on the trailer's door. He was still in bed when an ICE officer opened the door to his bedroom, came in, and told him to put his " hands up." The officer pulled off Martinez's blanket, and Martinez got up. The officer asked Martinez " if [he] had documents." Martinez said no. The officer asked if Martinez had a passport, and Martinez said yes. Martinez began to " look for [his passport] in [his] suitcase," but the officer told Martinez to stop. The officer searched and found the passport, then took Martinez into the living room of the trailer and shackled him.1
Martinez later testified he had no " claim to permanent resident status in the United States," but refused to say whether he had " any claim to citizenship status in the United States." His Honduran passport listed his nationality as " Hondureña" (i.e., Honduran) and his birthplace as " Honduras." Martinez presented no evidence of legal entry to the United States.
Garcia refused to say whether he was a U.S. citizen and testified he " d[id] n't know" whether he had " a claim to lawful permanent residence in the United States." Garcia's passport, from El Salvador, listed his birthplace as " Teotepeque, La Libertad" 2 and his nationality as " Salvadoreña" (i.e., Salvadoran). Garcia presented no evidence of legal entry into the United States.
A. IJ's Decisions
In separate motions filed October 8, 2008, Martinez and Garcia asked the IJ to suppress the evidence— notably their passports— obtained as a result of the ICE officers' warrantless entry into the trailer home. After a suppression hearing on November 3, 2009, the IJ denied their motions in an order dated January 11, 2010. In the order, the IJ repeatedly inverted Garcia's name, interchangeably referring to him as " Nunez," " Nunez-Garcia," and " Garcia-Nunez." Garcia's passport lists his last name as " Garcia Nuñez."
In the same order, the IJ questioned the credibility of Martinez's account and found " insufficient credible evidence to support the motions." But this conclusion appears to be the result of the IJ's own erroneous view of the evidence: the IJ misstated and conflated Martinez's and Jorge's testimonies. The IJ's order stated Martinez " testified at the suppression hearing that he
was asleep in the livingroom of the trailer when someone knocked at the door." In truth, this was the testimony of Martinez's son Jorge, not Martinez. The rest of the IJ's recounting of Martinez's testimony continued in this vein, stating Martinez— not Jorge— " yelled to the people in the house, ‘ Don't open the door. It's the [sic] Immigration.’ " Jorge had testified he yelled " not to open the door, because it was Immigration."
The IJ then compared Martinez's affidavit with Jorge's testimony, which she believed to be Martinez's:
However, [Martinez] filed a sworn affidavit ... which states that he was asleep in his bedroom with the door closed when an ICE agent walked in and said, " Hands up![" ] in Spanish.
Unsurprisingly, the IJ found Martinez's affidavit, which said he was asleep when an ICE officer entered his room, created " glaring inconsistencies," because the affidavit did not match Jorge's testimony (which the IJ thought was Martinez's testimony) that he was asleep in the living room when ICE officers knocked on the door. Martinez's actual testimony at the suppression hearing appears to be entirely consistent with his affidavit.
However, the IJ did not deny the motions solely on the basis of her factual mistake. Assuming Martinez's and Garcia's accounts were true, the IJ explained she would still deny the motions because even if there were a Fourth Amendment violation, the officers' conduct was insufficiently egregious to merit exclusion. Again confusing the identities of Martinez and his son, she wrote, " The respondent [ (i.e., Martinez) ] essentially created exigent circumstances when he yelled not...
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