Oliva–Ramos v. Attorney Gen. of United States

• Citation: 694 F.3d 259
• Decision Date: 13 September 2012
• Docket Number: No. 10–3849.,10–3849.
• Parties: Erick Rodolfo OLIVA–RAMOS, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

694 F.3d 259

Erick Rodolfo OLIVA–RAMOS, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 10–3849.

United States Court of Appeals,Third Circuit.

Argued Nov. 16, 2011.

Opinion filed: Sept. 13, 2012.

Nancy Morawetz, Esquire, Alina Das, Esquire, Nikki R. Reisch, Law Student (argued), Stephen Kang, Law Student, Ruben Loyo, Law Student, Nancy Steffan, Law Student, Washington Square Legal Services, Inc., New York, NY, for Petitioner.

Allen W. Hausman, Esquire (Argued), Andrew J. Oliveira, Esq., United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, for Respondent.

Timothy E. Hoeffner, Esq., DLA Piper, Philadelphia, PA, LATINOJUSTICE PRLDEF, AMERICAN CIVIL LIBERTIES UNION, AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY, ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND, CARDOZO IMMIGRATION JUSTICE CLINIC and CATHOLIC CHARITIES OF THE ARCHDIOCESE OF NEWARK, in support of Petitioner.

Before: McKEE, Chief Judge, RENDELL and AMBRO, Circuit Judges.

OPINION OF THE COURT

McKEE, Chief Judge.

Erick Oliva–Ramos petitions for review of an order of the Board of Immigration Appeals affirming an Immigration Judge's order removing him to Guatemala. He also seeks review of the BIA's denial of his motion to supplement the record and to reopen his removal proceeding before an Immigration Judge.¹ We must decide whether the BIA erred in refusing to apply the exclusionary rule in a removal proceeding under the circumstances in this case. A related question that we must address is whether the BIA abused its discretion in not reopening this case to allow Oliva–Ramos to supplement the administrative record with evidence of widespread and/or egregious conduct by Immigration and Customs Enforcement (“ICE”) officials. Finally, we must determine if alleged violations of regulations entitle Oliva–Ramos to relief. For the reasons explained below, we will grant the petitions, vacate the BIA's order of removal, and remand to the BIA for further proceedings consistent with this opinion.²

I. Factual Background

At 4:30 a.m. on March 26, 2007, a team of armed, uniformed ICE officers repeatedly rang the entrance “buzzer” to the Englewood, New Jersey apartment where Erick Oliva–Ramos lived. Oliva–Ramos shared the home with his three sisters (Clara, Wendy, and Maria), his nephew (Wagner), and his brother-in-law (Marvin). Two visiting family friends were also in the apartment. Of those present, only Clara could prove that she was legally in the United States.

According to the affidavit that was introduced at Oliva–Ramos's removal hearing, Clara heard the incessant buzzing, but could not tell who was ringing the bell because the intercom was broken.³ Since it was 4:30 a.m., she remotely opened the building's entry door because she feared that the repeated buzzing signaled an emergency. While in her pajamas, she stepped onto the landing outside her apartment as she held her apartment door open with her foot and saw five or six ICE officers coming up the stairs.

As the officers approached the front door of the apartment, they waived an administrative warrant for Oliva–Ramos's other sister, Maria. Clara later stated that she realized that the people coming up the stairs were ICE agents when they said they had an order to arrest Maria. The officers had no information about the identity or legal status of any of the other occupants of the apartment. Before entering the apartment, the officers asked Clara for her name and immigration status, and she informed them that she was a legal permanent resident. The officers then asked if Clara lived in the apartment and asked permission to enter. In her affidavit, Clara explained that she did not deny entry even though Maria was not there because she (Clara) believed that she could not refuse and that the order to arrest Maria gave the officers the right to enter even in Maria's absence.

At some point during the exchange with the officers, Clara lost her foothold on the open door and it slammed shut, leaving her outside the apartment. Her son let her in, however, after she banged on the door. As she entered, the officers lined up behind her and followed her inside. Once inside, they began waking the occupants and ordering them into the living room while another agent blocked the door so that no one could leave.

According to Oliva–Ramos's affidavit and testimony before the IJ, Clara knocked on his bedroom door and told him that immigration officers were there. Oliva–Ramos shared his bedroom with his sister, Wendy, and her husband. Oliva–Ramos was sleeping, but Wendy opened the bedroom door.⁴

An armed officer in a green ICE uniform shone a flashlight into the room and ordered everyone to move to the living room. Oliva–Ramos was in his pajamas but was permitted to get dressed under the supervision of an ICE officer. He testified that “there was no way [he] could have left” the presence of the officers.

The officer then directed Oliva–Ramos to the living room and told him to sit down. In addition, Oliva–Ramos testified that the officer did not identify himself, show him a badge or identification, or tell him why he (the officer) was in the apartment. During the removal hearing, Oliva–Ramos also testified that he was not told that he could refuse to go with the officer. ⁵

After everyone was escorted to the living room, five or six armed ICE officers began questioning everyone about Maria. During that questioning, the officers blocked each entrance to the living room. Oliva–Ramos testified that he heard an officer tell Clara to sit down when she tried to stand. He also said he heard the officer tell her that if she did not sit, she could be arrested. The officers asked about the identities and nationalities of all of the apartment occupants. Clara's son, Wagner, initially refused to answer questions, but relented when the officers ordered him to speak and told him he could not refuse to answer them.

The officers did not ask Oliva–Ramos any questions in the living room but ordered him back to his bedroom to retrieve his identification documents. An officer followed Oliva–Ramos to the bedroom as he retrieved his identification and escorted him back to the living room. Oliva–Ramos stated that he went to retrieve his documents because he thought that, if he did not go, he could be arrested because he did not have papers. He also thought that if he showed his Guatemalan identification to the officer, nothing would happen. The documents he retrieved revealed that he is a citizen of Guatemala; he was unable to produce any documentation demonstrating that he was lawfully present in the United States.

The encounter lasted approximately forty-five minutes. During that time, Oliva–Ramos and his family were prevented from eating, drinking, or speaking out of turn. According to Clara's affidavit, her sister (Wendy) began menstruating while the family was in the living room, but Clara was not allowed to get any feminine hygiene products for her. According to Oliva–Ramos's affidavit, although Wendy and Oliva–Ramos were eventually allowed to use the bathroom, they had to leave the door open while an ICE officer stood outside the door, thus denying them the most rudimentary considerations of privacy.

Clara was able to document that she was legally in the United States. All others were eventually handcuffed, placed in an ICE van and driven around while the officers made several more raids. At each stop, the agents followed a similar pattern of knocking on doors and making general inquiries about the legal status of all of the occupants in a residence. These stops resulted in two more individuals being placed in the van.

At around 7:00 a.m., Oliva–Ramos and his family arrived at the ICE office, where they were placed in a detention room containing an open toilet. Oliva–Ramos testified that there he was told to fill out papers written in Spanish, and he was given the option of signing them. He had to wait until the afternoon before he was questioned.⁶ He claims that neither he nor his relatives were given food nor water in the interim. The ICE officers who conducted the raid eventually interviewed the detainees. Oliva–Ramos was interviewed by ICE Officer Marlene Belluardo. After being interviewed, Oliva–Ramos was charged with being removable and was taken to a detention facility. While there, he was informed of his right to a lawyer and given a list of free legal service providers.Between 6:00 and 7:00 p.m., he was finally given the first food that he had been allowed to eat during his 15–hour ordeal.

A. Immigration Court Proceedings

During the ensuing removal proceedings, Oliva–Ramos testified on his own behalf with the assistance of a Spanish interpreter. He was cross-examined about the raid, his arrest, and his examination at the ICE office. He also presented the supporting affidavits of Clara, Wagner, and Marvin, although they were not present in court to testify.

The Government presented only one witness, the arresting and interviewing ICE officer, Marlene Belluardo. Officer Belluardo testified that she had taken part in “hundreds” of home raids since participating in the raid at Oliva–Ramos's apartment on March 26, 2007, but had no independent recollection of the raid that led to Oliva–Ramos's detention. Officer Belluardo stated that she does not remember anything about the apprehension, but acknowledged her participation based upon having filled out Form I–213, the Record of Deportable/Inadmissible Alien, which listed her as an arresting officer. ⁷ She testified about the general procedures used in ICE field operations, but her only knowledge of Oliva–Ramos came from the I–213 form. Officer Belluardo recognized him from the picture contained on the I–213 form. She testified that she received three months' training on how to conduct investigative work, how to look for subjects with warrants, and about the confines of the Fourth Amendment.

Belluardo also...