725 F.3d 172 (2nd Cir. 2013), 11-4916-ag, Cotzojay v. Holder

Docket Nº:11-4916-ag
Citation:725 F.3d 172
Opinion Judge:Wesley, Circuit Judge :
Attorney:HEATHER Y. AXFORD (Anne Pilsbury, Alexandra Goncalves-Pe
Judge Panel:Before: WESLEY, DRONEY, Circuit Judges, NATHAN, District Judge.[*]
Case Date:July 31, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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725 F.3d 172 (2nd Cir. 2013)




No. 11-4916-ag

United States Court of Appeals, Second Circuit

July 31, 2013

Argued March 14, 2013

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Petitioner Doroteo Sicajau Cotzojay (" Sicajau" ) appeals from the October 31, 2011 decision of the Board of Immigration Appeals (the " BIA" ) dismissing Sicajau's appeal from the Immigration Judge's (the " IJ" ) July 17, 2009 order of removal and the IJ's April 21, 2009 oral decision denying Sicajau's motion to suppress the Government's evidence of alienage. Immigration and Customs Enforcement (" ICE" ) officers obtained this evidence during an April 2007 nighttime, warrantless raid on Sicajau's home. The IJ denied Sicajau's motion to suppress after finding that Sicajau had not shown that ICE officers entered his home without consent and that, regardless, the ICE officers' conduct was not sufficiently " shocking" to qualify as egregious and require application of the exclusionary rule in this civil removal proceeding. The BIA affirmed the denial of Sicajau's motion to suppress and the subsequent order of removal. Because we find that the IJ erroneously interpreted our case law to require physical threat or harm before a Fourth Amendment violation becomes sufficiently egregious to require suppression, and thus erred by refusing to shift the burden of proof to show consent to the Government, we VACATE and REMAND the BIA's decision affirming the IJ's denial of Sicajau's motion to suppress and order of removal.

HEATHER Y. AXFORD (Anne Pilsbury, Alexandra Goncalves-Peña, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioner.

NICOLE THOMAS-DORRIS, Trial Attorney, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Mary Jane Candaux, Assistant Director, on the brief), United States Department of Justice, Washington, DC, for Respondent.

Nancy Morawetz, Nikki Reisch, Legal Intern, Washington Square Legal Services, Immigrant Rights Clinic, New York, NY, for Amici Curiae Lutheran Social Services of New York, Families for Freedom, New Sanctuary Coalition of New York City.

Before: WESLEY, DRONEY, Circuit Judges, NATHAN, District Judge.[*]


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Wesley, Circuit Judge :

On April 16, 2007, at approximately 4:00 a.m., Petitioner Doroteo Sicajau Cotzojay (" Sicajau" )1 awoke to hear people knocking on windows and doors at the duplex that he shared with approximately twenty people in Riverhead, New York.2 The individuals surrounding Sicajau's home identified themselves as police or probation officers and asked to speak with a man named Jose Cojon (" Cojon" ). The " officers" were Immigration and Customs Enforcement (" ICE" ) officers. Sicajau observed Cojon (who lived in the next room) leave the house with his passport. The door to the house then closed behind him. Sicajau remained in his bedroom on the first floor of the house with his door locked. He heard steps on the first floor and then heard people pounding on his bedroom door. Fearing that officers would force their way into his room, Sicajau opened the door. Armed ICE officers entered the room, placed Sicajau in handcuffs and took him to the living room, where he was searched and instructed to remain on the floor.

The officers asked Sicajau for identification and rejected his high school identification card -- Sicajau had recently turned twenty years old. They then took him back to his bedroom and searched through the contents of his drawers until they located his Guatemalan passport. ICE officers loaded Sicajau and the majority of the people who lived at the duplex into a van. The officers drove the van to another house where they arrested several more people before proceeding to a McDonald's, where the officers had breakfast; the officers told Sicajau and the detainees in the van they could relieve themselves in the restaurant parking lot if the need arose.

ICE officers took Sicajau to 26 Federal Plaza in New York City and placed him in

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a cell. He was given a sandwich and a bottle of water. Subsequently, officers took Sicajau's photograph and his fingerprints before questioning him in English (which he does not speak well) about his immigration status and asking him to sign numerous documents. Sicajau was told he " could be in even bigger problems" if he didn't sign the documents. Joint App'x 149-50. After Sicajau complied and officers completed a Form I-213, the Record of Deportable/Inadmissible Alien, ICE officers informed Sicajau that he had the right to an attorney. Sicajau was released at approximately 10:00 p.m. that evening.

Prior Proceedings

After the Government instituted removal proceedings, Sicajau filed a motion to suppress the Government's evidence of alienage, specifically, Sicajau's Guatemalan passport, the I-213 and the statements memorialized therein, and any other documents seized by, or statements made to, ICE officers. Sicajau argued that ICE officers obtained this evidence in violation of his Fourth and Fifth Amendment rights. Sicajau contended that ICE officers had " forcibly gained entrance" to his home and arrested him without a warrant or probable cause. Id. at 250. In support of his motion to suppress, Sicajau submitted a sworn statement. His affidavit asserted that he was " asleep in [his] bedroom" when he was " suddenly awoken at 4 A.M." by knocking at his window and voice yelling " 'Police! Open up.'" Id. at 252. Regarding the officers' initial entry and exit from his home, Sicajau averred that he

opened [his] bedroom door to see what was going on when [he] saw Jose Cojon leaving with a group of armed officers through the main door. After this [Sicajau's] sister in law closed and locked the front door. [Sicajau] returned to [his] bedroom.

Id. Sicajau's affidavit does not explain when or how the officers re-entered the home because he had " decided to stay in [his] room." Id.

In April 2009, Immigration Judge Robert D. Weisel (the " IJ" ) held a suppression hearing based on a " preliminary ruling that [Sicajau's] affidavit alone constituted prima facie evidence" sufficient to entitle Sicajau to a hearing. Id. at 100. However, the IJ was of the view that Sicajau's affidavit was " not in and of itself sufficient to establish that the right was violated." Id. The IJ viewed " the purpose of [the] hearing" as " provid[ing] [Sicajau] with the opportunity to testify. He has the burden to establish that there was a violation under the Constitution." Id. at 130.

During the hearing, Sicajau admitted that he " didn't see how [the officers] came in" when they returned, because he was in his bedroom, but he " heard the steps . . . how they were knocking and trying to get in." Id. at 151. Sicajau was able to testify to the fact that after Cojon left the house, one of Sicajau's friends " closed the door . . . he locked it and closed it with some force." Id. at 139. During cross-examination, the attorney representing the Government inquired about the distinction between Sicajau's affidavit, in which he stated that his sister-in-law closed the door behind the officers, and his testimony, during which he said that a friend had shut the door. Id. at 154. Sicajau confirmed that he " saw [his] sister-in-law close the door, [he had] always said [his] sister-in-law and not [his] friends," but that his brother's subsequent deportation and the resulting estrangement between his brother and sister-in-law had left him concerned she would not testify on his behalf. Id. at 155, 159-61.

Following Sicajau's testimony, his attorney called another resident of the house, Jose Anibal Ochoa (" Ochoa" ), to testify.

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Ochoa corroborated Sicajau's statements regarding what time officers arrived at the house. At the time of the raid, Ochoa lived on the second floor of the residence. He described the layout of the duplex and explained that each floor has its own entrance. Although his testimony was not a model of clarity, the IJ and the parties agreed that Ochoa said that the home has an exterior door that led to two doors, one opening onto the first floor and one at the top of a set of interior stairs opening onto the second floor. Ochoa testified that the officers forced open the exterior door to gain access to the house. Ochoa based this belief on the " banging" he heard and the fact that " no one opened the door for them." Id. at 190. Ochoa did not see the officers enter the home.

The Government produced no witnesses. Instead, the Government rested on an affidavit submitted by Darren Williams (" Williams" ), a Supervisory Detention and Deportation Officer with the ICE New York City Fugitive Operations Team. Williams did not participate in the raid on Sicajau's home; his affidavit offered nothing as to the acts of officers who did. Instead, he explained the purpose of two Department of Homeland Security (" DHS" ) programs: Operation Return to Sender (" apprehending immigration absconders at large" ) and Operation Cross Check (finding and securing " aliens illegally in the United States, fugitive aliens, aliens with criminal records, or aliens posing a threat to the community" ).3 Id. at 229. Williams confirmed that operations were routinely scheduled to begin in the early morning -- but never before 5:30 a.m. -- and that officers were " explicitly trained that voluntary consent must be obtained from the occupant of the residence prior to making entry." Id. at 230-31. Williams stated that officers could question and, if warranted, detain non-target individuals who were encountered during an operation.

The IJ denied Sicajau's motion to suppress in an oral decision. The IJ recognized that this Court...

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