Zuniga-Perez v. Sessions, Docket No. 17-996

• Decision Date: 25 July 2018
• Docket Number: Docket No. 17-996,August Term 2017
• Citation: 897 F.3d 114
• Parties: Juan Martin ZUNIGA-PEREZ and Elder Hernandez-Ocampo, aka Fabian Ruia-Abarca, aka Jose Hernandez, Petitioners, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

897 F.3d 114

Juan Martin ZUNIGA-PEREZ and Elder Hernandez-Ocampo, aka Fabian Ruia-Abarca, aka Jose Hernandez, Petitioners,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.^*

Docket No. 17-996

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: May 16, 2018

Decided: July 25, 2018

ANNE E. DOEBLER, Buffalo, New York, for Petitioners.

MICHAEL C. HEYSE, Trial Attorney (Mary Jane Candaux, Assistant Director, on the brief ), Office of Immigration Litigation, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, District of Columbia, for Respondent.

Before: Pooler, Wesley, and Chin, Circuit Judges.

Chin, Circuit Judge:

Petitioners Juan Martin Zuniga-Perez and Elder Hernandez-Ocampo seek review of a March 10, 2017, decision of the Board of Immigration Appeals (the "BIA") affirming a February 24, 2016, decision of an immigration judge (the "IJ") denying—without a hearing—their motion to suppress evidence. In re Zuniga-Perez, Hernandez-Ocampo , Nos. A 201 218 867/868 (B.I.A. Mar. 10, 2017), aff’g Nos. A 201 218 867/868 (Immig. Ct. Buffalo Feb. 24, 2016). Petitioners, citizens of Mexico residing in upstate New York, were arrested during a search of their residence by law enforcement officers purportedly looking for a criminal suspect pursuant to a "felony search warrant."

In removal proceedings before the IJ, both petitioners moved to suppress the evidence obtained during the search, arguing that the search violated the Fourth Amendment because it was conducted without a warrant, consent, or exigent circumstances, and, even assuming the existence of a warrant, the search exceeded its scope. Although petitioners submitted affidavits in support of their motion, the IJ denied the motion, without holding a suppression hearing. The question presented is whether the IJ should have held an evidentiary hearing in light of the evidence submitted by petitioners. We hold that because petitioners made a sufficient showing of an egregious constitutional violation, they were entitled to a suppression hearing.

STATEMENT OF THE CASE

A. The Search

The facts are drawn from the Form I-213s submitted by the Department of Homeland Security ("DHS") to initiate the removal proceedings and petitioners' affidavits in support of their motions to suppress.¹

At 10:00 pm on September 4, 2011, New York State Police gained entry to petitioners' residence in Galen, New York, purportedly to execute a "felony search warrant." App. 135, 206. The police entered the house while petitioners were asleep. Many other police surrounded the house.

Petitioners "shared a rented room" in the house and were awakened by the police knocking on the window and shining a flashlight into their room, "shouting, ‘open the window. Open the door.’ " App. 126 ¶ 1, 4; 196 ¶ 1, 4. Petitioners did not open the door, nor did they give permission to the police to enter. Petitioners learned later that another resident of the house, who lived in a different room, let the police in because, as he explained, "the police gave him no choice." App. 126 ¶ 3, 196 ¶ 3.

The Form I-213s provide the following explanation for the search:

Troopers ... were executing a felony search warrant located at [the house]. Information received by NYSP stated that a possible fugitive from justice was located at this address and in addition there were known Hispanic migrants residing at the residence.

App. 135, 206 (emphasis added). The police were accompanied by two members of the United States Customs and Border Patrol who were allegedly brought along to provide "translation assistance." App. 135, 206. According to petitioners' affidavits, petitioners "stayed in [their] room as the police entered the house, until [the police] came to [their] room." App. 126 ¶ 4, 196 ¶ 4. The police then "rounded up everyone in the house and took [them] to the living room." App. 126 ¶ 5, 196 ¶ 5. They asked if petitioners knew the fugitive. Petitioners stated that they "knew him but that he was not there" though he "used to live in the same room as [petitioners]." App. 126 ¶ 6, 196 ¶ 6.

One of the Border Patrol officers then asked petitioners if they "had papers to be in the United States." App. 126 ¶ 7, 196 ¶ 7. Three of the residents (including petitioners) stated that they were citizens of Mexico and did not possess valid immigration documentation. Border Patrol agents then arrested those three residents for violating Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i).² Border Patrol agents allowed Hernandez-Ocampo to get dressed. As he did so, two officers with rifles "guarded" him. App. 196 ¶ 7. Zuniga-Perez was taken into custody without an opportunity to change, although he was in shorts. They then handcuffed petitioners. The Border Patrol asked about petitioners' immigration status only after the police determined that the fugitive was not present.

B. The Proceeding Before the IJ

On September 5, 2011, DHS issued a Notice to Appear to both petitioners charging them with being removable pursuant to INA § 212(a)(6)(A)(i). Although they initially appeared pro se , they eventually obtained counsel. On November 20, 2015, with the assistance of counsel, petitioners moved to suppress the two Form I-213s and all evidence from the September 2011 raid and arrests. Petitioners argued that the Border Patrol agents had no articulable suspicion to believe that petitioners had violated the law and that they conducted the search without a warrant, consent, or exigent circumstances. Petitioners also alleged that the Border Patrol agents used the access obtained by the police as a pretext to search their residence, and that the search was conducted in violation of agency regulations requiring reasonable suspicion before stopping and seizing individuals. Finally, petitioners argued that the search was racially motivated because the police conducted the search because they believed there were "known Hispanic migrants" at the residence. Pet'rs' Mot. to Suppress at 4-5, In re Zuniga-Perez , No. A 201 218 867 (Immig. Ct. Buffalo Nov. 20, 2015). Petitioners requested an evidentiary hearing in the event the IJ did not grant their motion on the papers.

The IJ held a conference on December 7, 2015. Counsel for petitioners raised the issue of the lack of a search warrant in the record, noting, "I don't have the search warrant. I don't know if there was literally a search warrant or if it was an arrest warrant or what the state trooper[s] had." App. 67. Counsel also voiced her concerns about the use of Border Patrol officers as interpreters:

[M]y concern is how the state police and the Border Patrol interact. So, the state police have independent interpreters that they called telephonically when they need interpreters for cases. And in this particular case, they called the [B]order [Patrol] to come act as translators. But the Border Patrol don't work for the New York State Police as translators. So, my argument, your honor, is that that is a pre-textu[ ]al way that they're inviting the Border Patrol along because they believe that they're going to gain access to a location. But there's no reasonable suspicion for that access, your honor.

App. 67-68. Counsel also argued that "simply because someone might be a migrant Hispanic farm worker doesn't necessarily mean that they lack status." App. 69.³

The IJ asked several questions of petitioners' counsel and DHS counsel, but no witnesses testified and no evidence was presented. DHS had not yet responded to the suppression motion, and the matter was adjourned to give it an opportunity to do so. DHS submitted a written response on December 22, 2015.

C. The IJ Decision

On February 24, 2016, without any further proceedings, the IJ denied petitioners' motion to suppress in a written decision. The IJ found that the evidence was not obtained

in violation of any provision of the U.S. Constitution or any law or regulation of the United States. Further, no agency violations occurred that would warrant suppression of any resulting evidence. Further still, the instant motion is not supported by any evidence and does not support a prima facie showing to suppress evidence.

App. 87. The IJ did not address petitioners' request for an evidentiary hearing.

At a hearing on March 16, 2016, the IJ found petitioners removable and inadmissible pursuant to INA § 212(a)(6)(A)(i).

D. The Appeal to the BIA

Petitioners appealed the IJ's decision to the BIA. On March 10, 2017, the BIA affirmed the IJ's decision. In re Zuniga-Perez, Hernandez-Ocampo , Nos. A 201 218 867/868 (B.I.A. Mar. 10, 2017). The BIA concluded:

We affirm the Immigration Judge's decision denying the respondents' motion to suppress evidence and ordering them removed. We discern no error in the Immigration Judge's finding that the search warrant executed by the New York State Police was not conducted in a way that resulted in an egregious violation of the respondents' Fourth Amendment rights. As the Immigration Judge found, the respondents' affidavits do not allege, and there is no evidence to support a claim, that law enforcement officials took any action that was racially motivated or was taken because the respondents are Hispanic in appearance or are migrant farm workers. We are unable to find evidence that the CBP officials engaged in an egregious violation of the Fourth Amendment such that the manner in which the respondents were questioned would be considered fundamentally unfair. There is no evidence that physical force was used or that the respondents were threatened or mistreated in any way. The respondents offer no compelling basis for departing from the general principle that the exclusionary rule does not apply to removal proceedings.

Although the respondents argue that an evidentiary hearing should be held, a hearing is unnecessary because, even accepting the respondents' affidavits as true, the actions of the government were

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