Perez Cruz v. Barr
| Decision Date | 13 June 2019 |
| Docket Number | No. 15-70530,15-70530 |
| Citation | 926 F.3d 1128 |
| Parties | Gregorio PEREZ CRUZ, Petitioner, v. William P. BARR, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ahilian T. Arulanantham (argued), Sameer Ahmed, ACLU of Southern California, Los Angeles, California; Noemi G. Ramirez, Los Angeles, California, for Petitioner.
Walter Bocchini (argued), Trial Attorney, Linda S. Wernery, Assistant Director, Office of Immigration Litigation; Chad A. Readler, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C., for Respondent.
Kristin Macleod-Ball, Melissa Crow, American Immigration Council, Washington, D.C.; Matthew E. Price, Jenner & Block LLP, Washington, D.C., for Amicus Curiae American Immigration Council.
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX8-837
Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and Daniel R. Dominguez,* District Judge.
Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to "target" over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed "in order to" arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.
In March 2006, ICE received an anonymous tip that Micro Solutions Enterprises (MSE), a Los Angeles-area manufacturer of printer cartridges, employed 200 to 300 undocumented immigrants. Nearly two years later, in February 2008, ICE agents sought and received a search warrant for employment-related documents located at the MSE factory in Van Nuys, California, and criminal complaints and arrest warrants for eight MSE employees.1
Documents later obtained2 revealed that ICE intended from the outset to turn the execution of these warrants into quite a different operation than a search for employment records. An internal memorandum issued before the operation stated that ICE "[would] be conducting a search warrant and expects to make 150–200 arrests." The memorandum also noted that ICE would have "2 buses and 5 vans" ready to transport potential detainees from the factory and "200 detention beds available to support the operation." Another planning document noted that ICE "anticipate[d] executing a federal criminal search warrant at MSE in order to administratively arrest as many as 100 unauthorized workers" (emphasis added).
The operation took place as planned. Two days after the warrants were issued, approximately 100 armed and uniformed ICE agents streamed into the MSE factory. Blocking all visible exits, the agents ordered all workers to stop working and announced that no one was permitted to leave. The agents prohibited the workers from contacting anyone using their cellphones and allowed them to use the restroom only with an ICE escort. Among the workers detained was Gregorio Perez Cruz, a native and citizen of Mexico who entered the United States without inspection in 1994.
The ICE agents then separated the men and women into different areas. The women were taken to the factory cafeteria, and the men were instructed to wait in a large hallway outside the cafeteria. After the men, including Perez Cruz, had gathered in the hallway, the agents ordered them to form two lines, one for individuals who possessed work authorization documents and another for those who lacked work authorization. Those who joined the line for men who had work authorization were escorted out of the hallway. Perez Cruz remained in the hallway but did not join either line.
The ICE agents next ordered Perez Cruz and the other remaining men to stand against the wall. While Perez Cruz and the others were standing the agents conducted a pat down of each of them. The agent who frisked Perez Cruz took his wallet. The detainees were then handcuffed and questioned. While Perez Cruz was handcuffed, the agents asked him his name, his nationality, his date of birth, and the length of time he had worked at the factory. The agents then escorted Perez Cruz and the other detained male workers into another hallway, where they were questioned again. At some point during his detention, Perez Cruz provided statements to the agents indicating that he lacked lawful immigration status.
Sometime later, the ICE agents began taking groups of workers to buses parked outside the factory. When it came time for Perez Cruz to board the bus, an agent photographed him and asked again for his name and country of origin. Perez Cruz, still handcuffed, was kept on the bus for over an hour before he was taken to a detention facility in downtown Los Angeles.
When the bus arrived at the detention facility, ICE agents ordered Perez Cruz off the bus, searched him again, and removed his handcuffs. Perez Cruz was then held at the detention facility overnight. During the night, he was interrogated again. The next day, still detained, Perez Cruz was interrogated once more. At around 1:00 a.m. he was released. According to a later ICE press release, Perez Cruz was one of 130 workers at the MSE factory arrested for immigration violations.
About a month later, Perez Cruz received a notice to appear for a removal hearing. The notice charged him as removable for entry without inspection. Based on the statements Perez Cruz provided during his detention, ICE agents prepared a Form I-213 alleging that Perez Cruz had admitted that he was brought illegally into the United States as a child. In addition to the Form I-213, the government produced Perez Cruz’s birth certificate, obtained by an ICE agent in Mexico based on the statements Perez Cruz had provided in connection with the factory raid.
Perez Cruz moved to terminate the proceedings or, in the alternative, suppress the evidence gathered, arguing that his arrest and interrogation violated binding federal regulations as well as the Fourth and Fifth Amendments. There was a brief hearing on Perez Cruz’s motions, during which the government did not contest any of Perez Cruz’s factual assertions. The immigration judge (IJ) granted Perez Cruz’s motion to terminate, concluding that ICE’s initial detention of Perez Cruz and failure to advise Perez Cruz of his rights "violated [ICE’s] own regulation." Relying on Matter of Garcia-Flores , 17 I. & N. Dec. 325 (B.I.A. 1980), the IJ held that, because Perez Cruz was prejudiced by this regulatory violation, termination of his removal proceedings was warranted. Accordingly, the IJ did not reach Perez Cruz’s constitutional claims.
The government appealed, and the Board of Immigration Appeals (BIA) reversed. The BIA relied on Michigan v. Summers , 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), which held valid the detention of residents of a home where a search warrant was being executed. Under Summers , the BIA concluded, Perez Cruz’s detention and arrest violated neither the agency’s regulations nor the Fourth Amendment. Because law enforcement officers are permitted to "secure the premises both for purposes of their own safety and in order to prevent the destruction of evidence" during the execution of a warrant, the BIA reasoned, the ICE agents did not violate the Fourth Amendment by "ordering employees to stop working, blocking exits, and asking employees to self-identify their immigration or citizenship status." The BIA also concluded that, even if the detention was improper, the evidence introduced by the government was offered to prove only Perez Cruz’s "identity" and therefore could not be suppressed.
On remand from the BIA, the IJ entered a removal order against Perez Cruz. When Perez Cruz again appealed, the BIA affirmed the IJ’s order and dismissed the appeal.
Perez Cruz timely petitioned this court for review of the BIA’s decisions. He argues, among other things, that his detention violated both the Fourth Amendment and controlling regulations, and that the evidence against him should therefore have been suppressed.
We first briefly address the government’s contention that even if Perez Cruz were otherwise entitled to suppression of the evidence obtained as a result of the MSE mass detention and arrest, the critical evidence in question—Perez Cruz’s statements as represented in the Form I-213, and his birth certificate—constitutes evidence only of "identity" and so is not subject to suppression. This argument is squarely foreclosed by precedent interpreting the reach of INS v. Lopez-Mendoza , 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984).
Lopez-Mendoza determined that "[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred." Id. at 1039, 104 S.Ct. 3479. On that basis, Lopez-Mendoza concluded that an immigrant who "objected only to the fact that he had been summoned to a deportation hearing following an unlawful arrest" could not raise a Fourth Amendment claim. Id. at 1040, 104 S.Ct. 3479. We have applied Lopez-Mendoza beyond the context of mandatory appearance for trial or hearing, holding that "identity evidence cannot be suppressed." United States v. Garcia-Beltran , 443 F.3d 1126, 1133 (9th Cir. 2006) (emphasis added).3
In Perez Cruz’s removal proceedings, the government offered statements Perez Cruz made during the factory interrogation regarding his country of origin. It also offered his birth certificate, obtained as a result of Perez Cruz’s statements at the factory about his birthplace. According to the government, the...
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