Sanchez v. Sessions

• Decision Date: 30 August 2017
• Docket Number: No. 14-71768,14-71768
• Citation: 904 F.3d 643
• Parties: Luis Enrique SANCHEZ, aka Enrique Cruz Sanchez, aka Luis Llamas Sanchez, aka Luis Charles Sanchez, aka Enrique Sanchez Cruz, aka Luis Enrique Sanchez Llamas, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

904 F.3d 643

Luis Enrique SANCHEZ, aka Enrique Cruz Sanchez, aka Luis Llamas Sanchez, aka Luis Charles Sanchez, aka Enrique Sanchez Cruz, aka Luis Enrique Sanchez Llamas, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-71768

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2017

Decided August 30, 2017

Opinion withdrawn July 18, 2018 Pasadena, California

Filed September 19, 2018

John Wolfgang Gehart (argued), Lourdes Barrera Haley, Elena Yampolsky, and Carlos Vellanoweth, Vellanoweth & Gehart LLP, Los Angeles, California, for Petitioner.

Tim Ramnitz (argued), Attorney; Jennifer P. Levings and Andrew C. MacLachlan, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Donald E. Keener, Deputy Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX9-028

Before: Kim McLane Wardlaw, Richard A. Paez, and Morgan B. Christen, Circuit Judges.

Concurrence by Judge Paez

PAEZ, Circuit Judge:

As Judge Pregerson poignantly described in our prior opinion: "This case is about Luis Sanchez, a small boat owner, who took some friends on a fishing trip within United States territorial waters, and ended up in removal proceedings before an immigration judge (‘IJ’) under section 240 of the Immigration and Nationality Act, 8 U.S.C. § 1229a." Sanchez v. Sessions , 870 F.3d 901, 904 (9th Cir. 2017), withdrawn , 895 F.3d 1101 (9th Cir. 2018).¹

Neither Sanchez nor his friends could have predicted the sequence of events that produced this outcome. Their plan had been to go fishing for a few hours, but after they had been out for about thirty minutes, the boat unexpectedly lost power. Stranded and with an infant on board, Sanchez’s friend called for emergency assistance. Some time later, United States Coast Guard ("Coast Guard") officers arrived and towed the boat safely into Channel Islands Harbor, a recreational harbor near Oxnard, California, where Sanchez and his friends were promptly detained, frisked, and asked for identification. Although Sanchez complied and produced his driver’s license, the Coast Guard continued to hold him and his friends without explanation. The Coast Guard also contacted Customs and Border Protection ("CBP") because they suspected that Sanchez and his friends were "possib[ly]" "undocumented worker[ ] aliens."

Sanchez was eventually taken into custody by CBP and placed in removal proceedings, where he unsuccessfully sought to suppress the Government’s evidence of both his alienage and his entry into the United States without inspection as the products of Fourth Amendment and regulatory violations. Sanchez petitions for review of the agency’s decision to admit the Government’s evidence. We grant the petition and conclude that Sanchez has made a prima facie showing that he was seized solely on the basis of his Latino appearance, which constitutes a particularly egregious regulatory violation. We remand for further proceedings before the IJ so that the Government may rebut Sanchez’s prima facie showing. We hold that the agency may consider on remand after the Government’s rebuttal whether the Coast Guard officers violated 8 C.F.R. § 287.8(b)(2) and if so, whether the violation was egregious and therefore warrants terminating Sanchez’s removal proceedings without prejudice.

I.

Sanchez is a forty-seven year old citizen of Mexico. He was seventeen years old when he entered the United States without inspection in 1988 and has lived in this country ever since. Until December 1, 1988, Sanchez’s father was a legalized Special Agricultural Worker. This meant that Sanchez was eligible to apply for Family Unity Benefits, a program that grants unmarried children of such legalized workers authorization to reside and work in the United States. See 8 C.F.R. § 236.12(a)(1).

Sanchez submitted his Family Unity Benefits and Employment Authorization applications to the United States Citizenship and Immigration Service ("USCIS") on May 11, 2004. Both applications were granted, with his Family Unity Benefits set to expire on May 11, 2006. Sanchez applied for an extension in December 2008. This time, however, USCIS denied Sanchez’s applications. USCIS concluded that he was ineligible for Family Unity Benefits and that his prior application for benefits had been approved in error, because he had previously been convicted of several California Vehicle Code violations.² See 8 C.F.R. § 236.13(b).

As a result, Sanchez was without lawful status on February 25, 2010, the day he and his friends embarked on their ill-fated fishing trip from Channel Islands Harbor. The weather was balmy and the group planned to go fishing for approximately two hours. The trip was not meant to be particularly arduous: one of Sanchez’s friends brought his fourteen-month-old son and the small recreational boat they took out to sea never made it beyond two or three miles from the harbor—well within United States territorial waters. See Proclamation No. 5928, 54 Fed. Reg. 777 (Jan. 9, 1989) (extending U.S. territorial waters to twelve nautical miles from the baseline).

The friends had just settled into their trip when, approximately thirty minutes after leaving the harbor, the boat’s engines lost power. Unable to make their way back to shore, one of Sanchez’s friends called 911 to request assistance. The 911 operator, in turn, contacted the Coast Guard for assistance. The Coast Guard proceeded to tow the boat and its occupants back to Channel Islands Harbor. The Coast Guard officers, however, did not inform Sanchez and his friends that they would be detained once they reached the shore. When Sanchez disembarked from the boat around 5:00 p.m., he was confronted by approximately eight Coast Guard officers waiting to take him into custody. The officers frisked Sanchez and his friends and then ordered them to turn over their identification documents and belongings. Sanchez complied with the officers’ orders and produced his driver’s license, which the officers took. Sanchez later testified at his removal hearing that the Coast Guard officers only asked him two questions while he was detained: his name and address, both of which he provided.

Understandably alarmed by the turn of events, Sanchez tried to ask the Coast Guard officers why they were detaining him. Instead of answering, the officers ordered Sanchez to stop asking questions and to stay put until "some other people" came to speak with him. What Sanchez did not know at the time was that the Coast Guard had already contacted CBP to report "the possibility of 4 undocumented worker[ ] aliens" and that the officers were simply waiting for CBP agents to arrive and take custody of Sanchez.³ The CBP agents arrived approximately two hours later, at which point the Coast Guard officers allowed the group to release the infant to a relative. CBP then transported Sanchez and his two friends, also Latino, to a facility where they were strip searched and interrogated. The CBP officers also confiscated their identification documents. It was during this interrogation that Sanchez admitted he had entered the United States without inspection.

The CBP officers released Sanchez later that evening and advised him to try and retain an attorney. A CBP officer separately prepared a Form I-213 (Record of Deportable/Inadmissible Alien), which noted that CBP had been contacted after the Coast Guard officers failed to "establish positive identity or nationality" for Sanchez and his companions. The form did not mention that Sanchez gave his driver’s license to the Coast Guard, but it did note that subsequent Immigration and Naturalization Service ("INS") checks in four databases all returned "negative" results.⁴

Although Sanchez was released the same day he was detained, his reprieve was short lived. The United States Department of Homeland Security ("DHS") ultimately served him with a Notice to Appear for removal proceedings.⁵ At the hearing, the Government sought to establish Sanchez’s nationality and entry without inspection by submitting CBP’s Form I-213 into evidence. Sanchez responded by filing a motion to suppress and to terminate removal proceedings. He argued that the Coast Guard egregiously violated his Fourth Amendment rights because the detention was based solely on race.⁶ He also argued that his detention violated 8 C.F.R. § 287.8(b), which requires that officers possess "reasonable suspicion" that a person is unlawfully present in the United States before detaining her or him. Sanchez contended that the Form I-213 was therefore inadmissible and requested that the IJ terminate removal proceedings.

The IJ denied Sanchez’s motion because he had failed to attach an affidavit in support of his motion; nonetheless, the IJ scheduled a suppression hearing. At the suppression hearing, which was held before a different IJ after Sanchez submitted an affidavit, the Government introduced into evidence Sanchez’s 2008 Family Unity Benefits and Employment Authorization applications. Although the IJ found that Sanchez’s testimony was consistent with his affidavit, she denied his motion and ordered Sanchez removed to Mexico. In her decision, the IJ found that Sanchez had failed to establish a prima facie case of either an egregious Fourth Amendment violation or a regulatory violation. The IJ also concluded that Sanchez’s Family Unity Benefits and Employment Authorization applications were separately and independently admissible to prove Sanchez’s identity.

Sanchez unsuccessfully appealed the IJ’s decision to the Board of Immigration Appeals ("BIA"). In a brief, unpublished decision, the BIA concluded that even assuming the Coast Guard officers violated Sanchez’s rights, the Government was entitled to rely on independent evidence—here, Sanchez’s Family Unity Benefits and Employment Authorization applications—to establish his...