Pretzantzin v. Holder

• Decision Date: 16 September 2013
• Docket Number: Docket No. 11–2867–AG.
• Citation: 736 F.3d 641
• Parties: Jose Matias PRETZANTZIN, aka Jose M. Pretzantzin–Yax, Pacheco Pretzantzin, aka Santos Ramiro Pretzantzin, Pedro Estanislado Pretzantzin, Pedro Leonardo Pacheco Lopez, Juan Miguel Pretzantlin–Yax, aka Juan Miguel Pretzantzin–Yax, Petitioners, v. Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

736 F.3d 641

Jose Matias PRETZANTZIN, aka Jose M. Pretzantzin–Yax, Pacheco Pretzantzin, aka Santos Ramiro Pretzantzin, Pedro Estanislado Pretzantzin, Pedro Leonardo Pacheco Lopez, Juan Miguel Pretzantlin–Yax, aka Juan Miguel Pretzantzin–Yax, Petitioners,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent. ^*

Docket No. 11–2867–AG.

United States Court of Appeals,

Second Circuit.

Argued: March 14, 2013.

Decided: July 31, 2013.

Amended: Sept. 16, 2013.

Anne Pilsbury (Heather Y. Axford, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioners.

Matthew George, Trial Attorney, Office of Immigration Litigation, Civil Division (Stuart F. Delery, Acting Assistant Attorney General, Civil Division, Douglas E. Ginsburg, Assistant Director, Office of Immigration Litigation, on the brief), United States Department of Justice, Washington, DC, for Respondent.

Elaine J. Goldenberg, Matthew E. Price, Jenner & Block LLP, Washington, DC; Omar C. Jadwat, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, for Amicus Curiae American Civil Liberties Union Foundation.

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

WESLEY, Circuit Judge:

In the early morning hours of March 5, 2007, Petitioner Pedro Estanislado Pretzantzin (“Estanislado Pretzantzin”) awoke to a loud banging; he opened his third-floor bedroom window to see a group of armed, uniformed officers at his apartment building's front door in Jamaica, New York.¹ The officers were from the Department of Homeland Security (“DHS”) and worked for Immigrations and Customs Enforcement (“ICE”). Estanislado Pretzantzin shared the apartment with members of his extended family, including Petitioners Jose Matias Pretzantzin, Pacheco Pretzantzin, Pedro Pacheco–Lopez (“Pacheco–Lopez”), and Juan Miguel Pretzantlin–Yax.² Through the open window, the officers informed Estanislado Pretzantzin that they were “the police” and ordered him downstairs to open the door. Estanislado Pretzantzin complied.

After confirming that he lived on the third floor, one of the officers led Estanislado Pretzantzin back upstairs and ordered him to allow the other officers inside. At no point during the encounter did the officers explain their presence, present a warrant, or request consent to enter the apartment. Once inside, ICE officers rounded up the remaining Petitioners, who were asleep in their beds, assembled them in the living room, and demanded to see their “papers.” It appears that only Pacheco–Lopez—the sole Petitioner who had a passport—was able to comply with the officers' directive. The officers did not ask Estanislado Pretzantzin whether he had legal status in the United States before arresting him.

All Petitioners were handcuffed and transported to ICE facilities at 26 Federal Plaza, in New York City, where they were notified for the first time that they were in the custody of immigration officials. ICE officers interviewed Petitioners and told them to sign statements that were not read to them in English (which Petitioners speak minimally if at all); these statements were subsequently memorialized on Form I–213s (Record of Deportable/Inadmissible Alien). Petitioners were released from custody later that afternoon and served with Notices to Appear, charging them with removability under Immigration and Nationality Act (“INA”) § 212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as natives and citizens of Guatemala who had entered the United States without inspection.

Following consolidation of their proceedings, Petitioners appeared before Immigration Judge George T. Chew (the “IJ”) and conceded that they were the individuals named in the Notices to Appear, but denied the charges of removability and moved to suppress the evidence against them and terminate their proceedings. Petitioners argued that they were entitled to the suppression of all statements and evidence obtained as a consequence of the nighttime, warrantless raid of their home under the Fourth and Fifth Amendments. In opposition, the Government argued, inter alia, that it possessed independent evidence of Petitioners' alienage. Specifically, the Government claimed that it had obtained Petitioners' Guatemalan birth certificates from the United States Embassy in Guatemala using Petitioners' names, and that it also had Petitioner Pacheco–Lopez's criminal history report, arrest record, and fingerprint card from a 1994 theft of services conviction for subway-turnstile jumping. The arrest report listed Guatemala as Pacheco–Lopez's birthplace.

The Government ostensibly relied on the admission in Petitioners' motion to suppress (indicating that Petitioners were related) and Pacheco–Lopez's arrest records (confirming that he was born in Guatemala) to target the United States Embassy in Guatemala for the birth certificate request. In connection with Petitioners' birth certificates, the Government proffered a Federal Express delivery record label for a package sent from ICE's facilities at 26 Federal Plaza to the United States Embassy in Guatemala, but it did not submit a copy of the actual birth certificate request or any other evidence bearing on the package's contents. Following Petitioners' testimony at a subsequent suppression hearing,³ the IJ invited the Government to proffer a warrant, statements from the officers, or any other evidence to justify their intrusion into Petitioners' home. The Government, however, declined to do so and explicitly disavowed any reliance on Petitioners' Form I–213s, choosing to rely instead on Petitioners' birth certificates and Pacheco–Lopez's arrest records as the sole evidence of alienage.

In June 2008, the IJ granted Petitioners' motion to suppress the Government's evidence of alienage and terminate the proceedings, finding that the nighttime, warrantless entry into their home and resulting arrests constituted an egregious violation of Petitioners' Fourth and Fifth Amendment rights. Having found Petitioners' testimony and supporting affidavits sufficient to establish a prima facie case for suppression, the IJ reasoned that the Government's failure to offer any justification for the conduct of its agents resolved the issue in Petitioners' favor. The IJ also rejected the Government's contention that Petitioners' birth certificates and Pacheco–Lopez's arrest records constituted independent evidence of alienage, finding that this evidence could only have been obtained through the use of evidence illegally procured as a result of the raid of Petitioners' home, namely, Pacheco–Lopez's passport and Petitioners' statements.

The Government appealed. In a December 17, 2010 order, the BIA vacated the IJ's decision. In re Jose Matias Pretzantizin, et al., Nos. A097 535 298/296/297/299/300/301 (B.I.A. Dec. 17, 2010). Relying on INS v. Lopez–Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), for the proposition that identity is never suppressible as the fruit of an unlawful arrest, the BIA found that it need not determine whether Petitioners suffered an egregious violation of their constitutional rights because their birth certificates and Pacheco–Lopez's arrest records were obtained after the Government had determined their identities. The BIA explained that Petitioners' birth certificates were obtained from Guatemalan authorities using Petitioners' insuppressible identities; the BIA offered no similar justification for the independence of Pacheco–Lopez's arrest records. Lastly, although the Government had expressly declined to rely on Petitioners' Form I–213s before the IJ, the BIA found this evidence admissible because Petitioners had not argued that their statements were “untrue or unreliable.” In re Pretzantizin, A097 535 298, at 2.

Petitioners were subsequently ordered removed to Guatemala and have timely petitioned for review.

Discussion⁴

“The general rule in a criminal proceeding is that statements and other evidence obtained as a result of an unlawful, warrantless arrest are suppressible if the link between the evidence and the unlawful conduct is not too attenuated.” Lopez–Mendoza, 468 U.S. at 1040–41, 104 S.Ct. 3479 (citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). “[T]he exclusionary sanction applies to any ‘fruits' of a constitutional violation—whether such evidence be tangible, physical material actually seized in an illegal search, items observed or words overheard in the course of the unlawful activity, or confessions or statements of the accused obtained during an illegal arrest and detention.” United States v. Crews, 445 U.S. 463, 470, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) (internal citations omitted). Outside of the criminal context, however, the applicability of the exclusionary rule becomes less certain. Lopez–Mendoza, 468 U.S. at 1041, 104 S.Ct. 3479.

In Lopez–Mendoza, the Supreme Court held that a Fourth Amendment violation does not, standing alone, justify the suppression of evidence in the course of a civil deportation proceeding, id. at 1050, 104 S.Ct. 3479; this Court has since interpreted Lopez–Mendoza to allow suppression following an egregious violation, see Almeida–Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir.2006). Today, as discussed in a companion case argued in tandem with the case at bar, Doroteo Sicajau Cotzojay v. Holder, 725 F.3d 172, 179 (2d Cir.2013), we confirm what the BIA and other courts have already recognized: A nighttime, warrantless raid of a person's home by government officials may, and frequently will, constitute an egregious violation of the Fourth Amendment requiring the application of the exclusionary rule in a civil deportation hearing. See Matter of Guevara–Mata, No. A097 535 291 (B.I.A. June 14, 2011); ⁵Oliva–Ramos v. Att'y Gen. of U.S., 694 F.3d 259, 279 (3d Cir.2012).

In the instant case, the BIA did not reach the question of whether there was an egregious violation of the Fourth Amendment, but instead predicated...