789 F.3d 434 (4th Cir. 2015), 13-1605, Yanez-Marquez v. Lynch

Docket Nº:13-1605
Citation:789 F.3d 434
Opinion Judge:HAMILTON, Senior Circuit Judge:
Party Name:MARIA YANEZ-MARQUEZ, Petitioner, v. LORETTA E. LYNCH, Attorney General, Respondent
Attorney:Amanda Hunnewell Frost, AMERICAN UNIVERSITY, Washington, D.C., for Petitioner. Jonathan Aaron Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Margaret Hobbins, MAGGIO & KATTAR, Washington, D.C., for Petitioner. Stuart F. Delery, Assistant Attorney General, Civil Di...
Judge Panel:Before KING and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Senior Judge Hamilton wrote the opinion in which Judge King and Judge Floyd joined.
Case Date:June 16, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

Petitioner, a native and citizen of El Salvador, seeks review of the BIA's decision dismissing her appeal from an IJ's order of removal. At issue is the IJ's denial of petitioner's motion to suppress certain evidence and to terminate the removal proceeding. The court held that the exclusionary rule applies to egregious violations of the Fourth Amendment. The court joined the Second, Third, and... (see full summary)

 
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Page 434

789 F.3d 434 (4th Cir. 2015)

MARIA YANEZ-MARQUEZ, Petitioner,

v.

LORETTA E. LYNCH, Attorney General, Respondent

No. 13-1605

United States Court of Appeals, Fourth Circuit

June 16, 2015

Argued September 17, 2014.

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[Copyrighted Material Omitted]

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On Petition for Review of an Order of the Board of Immigration Appeals.

ARGUED:

Amanda Hunnewell Frost, AMERICAN UNIVERSITY, Washington, D.C., for Petitioner.

Jonathan Aaron Robbins, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Margaret Hobbins, MAGGIO & KATTAR, Washington, D.C., for Petitioner.

Stuart F. Delery, Assistant Attorney General, Civil Division, Daniel E. Goldman, Senior Litigation Counsel, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before KING and FLOYD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Senior Judge Hamilton wrote the opinion in which Judge King and Judge Floyd joined.

OPINION

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HAMILTON, Senior Circuit Judge:

Maria Yanez-Marquez (Yanez), a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from the order of an Immigration Judge (IJ) ordering her removal from the United States to El Salvador. Prior to ordering Yanez's removal, the IJ denied her motion to suppress certain evidence and to terminate the removal proceeding. At the center of Yanez's petition for review is her challenge to the denial of this motion, which was premised on, inter alia, alleged egregious violations of her Fourth Amendment rights. For the reasons stated below, we deny the petition for review.

I

A

Because the IJ denied Yanez's motion to suppress and to terminate without an evidentiary hearing, we review the evidence in the light most favorable to Yanez. Cotzojay v. Holder, 725 F.3d 172, 178 (2d Cir. 2013).

In June 2008, agents from the Immigration and Customs Enforcement (ICE) were investigating Robert Bontempo, Jr. and Rebecca Bontempo, the owners of Annapolis Painting Services (APS). The agents suspected that the Bontempos employed and harbored illegal aliens. The Bontempos owned a property, 402 Harbor Drive, Annapolis, Maryland (the Premises), which ICE surveillance revealed was occupied by Jose Umana Ruiz (Umana), an illegal alien and El Salvadorian citizen. Unbeknownst to the agents, Yanez, an illegal alien and Umana's long-time partner,

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also lived at the Premises. In June 2008, Yanez was five months pregnant.

In an affidavit in support of a search warrant for the Premises and numerous other houses owned by the Bontempos that were tied to the housing of illegal aliens, ICE Special Agent Francis Coker (Agent Coker) outlined the extensive background evidence concerning how employers employ and house illegal aliens, and the extensive evidence concerning how APS and the Bontempos engaged in such practices.1 The affidavit also included a picture of the Premises and described it as a " single-family home[,] a single story building with a shingled roof." (J.A. 524).2 A mailbox, with the number " 402," is located in front of the Premises. (J.A. 524). The affidavit noted that Anne Arundel County land records reflected a sale of the Premises from Jennifer Scott to the Bontempos in October 2000 for the sum of $156,000.00.

The search warrant that accompanied Agent Coker's affidavit had two boxes on its front side, where the issuing judge was required to designate the time of day when the search was authorized to occur. The " daytime" box read " in the daytime--6:00 A.M. to 10:00 P.M." (J.A. 455). Meanwhile, the alternative " any time" box read " at any time in the day or night as I find reasonable cause has been established." (J.A. 455). In issuing the warrant for the Premises, a United States Magistrate Judge in the District of Maryland checked only the daytime box and struck the language next to the any time box that would have authorized a nighttime search as follows: " at any time in the day or night as I find reasonable cause has been established." (J.A. 455) (strikeout in original). Thus, the warrant for the Premises authorized a daytime search only, to be conducted between 6:00 a.m. and 10:00 p.m. The warrant also specified that the search was to be completed on or before July 4, 2008. The scope of the items to be seized under the warrant was broad and included illegal aliens, travel documents, financial records, and photographs of harbored aliens.

The magistrate judge issued the search warrant on June 24, 2008. The search of the Premises took place six days later, on the morning of Monday, June 30, 2008. Prior to the search, several ICE agents, along with officers of the Anne Arundel County Police Department, assembled in an Annapolis parking lot for a briefing. ICE Agent Sean Currie (Agent Currie), the ICE search team leader, assigned responsibilities for the search. After the briefing, the search team proceeded to the Premises, which was ten to fifteen minutes away by car, to execute the warrant.

According to Yanez, the search warrant was executed at the Premises at 5:00 a.m.3

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Agent Currie knocked on the front door which was answered by another occupant of the Premises, Jose Mendoza-Gomez (Mendoza), who immediately was handcuffed and seated on the couch in the living room for officer safety. After detaining Mendoza, two agents proceeded upstairs. Umana and Yanez were awakened by the yelling of " police" and a loud banging on their bedroom door. (J.A. 141). Umana and Yanez had been planning to sleep later than normal that morning because Yanez had the day off from work. She felt groggy and confused because " it seemed like it was the middle of the night." (J.A. 141). She had no idea what was going on. Umana clothed himself, but before he could reach the locked door, the ICE agents broke it down, causing the door to hit Umana's hand. Two agents " burst" into the room and screamed " police." (J.A. 142). One agent grabbed Umana's neck and threw him to the ground. The other held a gun to Umana's head while pinning his body and face to the floor. The agents screamed " don't move." (J.A. 142). Once Umana was held down, an agent pointed a gun at Yanez's head and yelled " don't move." (J.A. 142). Yanez, who was wearing a " nightshirt," cried and pleaded for permission to cover herself " with more clothes." (J.A. 142). The agent again screamed " don't move" and pointed his gun at her head. (J.A. 142). Umana told the agents that Yanez was pregnant and begged them to allow her to get dressed. A female agent was called for assistance and came to Yanez, telling her that " it will be okay." (J.A. 142). Yanez was scared that she or Umana would be harmed, and she was not allowed to use the restroom. Although an agent was speaking in Spanish, loud noise obstructed Yanez from hearing. The agents handcuffed Umana and escorted him downstairs. Yanez grabbed a " T-shirt to put over [her] nightshirt" as she was led downstairs at gunpoint. (J.A. 143).

Downstairs, Yanez saw four ICE agents in the living room. She was told to join Umana on the couch. Although the occupants denied that anyone else was in the house, the agents knocked down doors and found no one. For five to ten minutes, the agents questioned the occupants about their identities, asking repeatedly about Annapolis Painting Services. The occupants denied knowing anything about the company. The agents were " extremely hostile," and Yanez thought that someone would be harmed if they did not answer the questions. (J.A. 143). The agents then took the occupants' fingerprints and escorted Umana and Mendoza away. Yanez was " never shown a warrant, [never] told that [she] had a right to an attorney, [and never told] that [she] could refuse to answer any questions." (J.A. 143).

The ICE agents searched the entire house, " ripp[ing] apart each room that they went through," kicking down doors, scattering documents, and turning over furniture. (J.A. 144). During the search, Yanez again was questioned. The agents asked her if she had a car and keys for it, which Yanez conceded. Yanez felt she had no choice but to surrender the keys. Her car was searched. The agents told Yanez that she " had" to sign " several pieces of paper," although she did not want to sign them, asked why she had to sign, and did not understand what they said. (J.A. 144). Despite no one reading or explaining the documents to her, she signed them.

Before leaving, an ICE agent told Yanez that she would get a letter from " the Immigration Court" and warned her not to move to a different location. (J.A. 145). When the agents left at 9:15 a.m., they took many of Yanez's belongings, including her pay stubs, tax returns, and photo albums. These items were never returned.

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After the search, Yanez left the Premises and spent the night at her sister-in-law's house. She returned to the Premises the following day to find the landlord's employees " hauling" off her and Umana's " belongings . . . to the trash dump." (J.A. 145). Later that day, Yanez experienced stress and severe abdominal pain that she believes were caused by the search, seizure, and questioning. At 5:30 p.m., she was taken to the hospital where she was treated and released after a few hours. Upon her release from the hospital, Yanez was told her unborn child would be " alright." (J.A. 145).

Yanez's statements to the ICE agents were memorialized on two " Form I--213s" (Record of Deportable/Inadmissible Alien).4 The forms state that Yanez is a native and citizen of El Salvador and that she " last entered the United States on or about April 2007 without inspection."...

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