On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: The Honorable Mirlande Tadal (No. A088-231-019)
The opinion of the court was delivered by: McKEE, Chief Judge.
Before: McKEE, Chief Judge, RENDELL and AMBRO, Circuit Judges
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.*fn1 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 OlivaRamos 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.*fn2
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 OlivaRamos 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.*fn3
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 OlivaRamos'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.*fn4
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.*fn5
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.*fn6 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.*fn7 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 testified about the standard protocol for fugitive operations. She said that when she goes to a home with a warrant, it is a "knock warrant," which is an administrative warrant. Someone has to respond to her knock on the door and grant permission to enter, as an officer is only permitted to enter with permission. Officer Belluardo confirmed that there was no warrant for Oliva-Ramos but only a deportation warrant for Maria. Belluardo testified that it is standard protocol to get everyone in the house to a central location so that the officers can identify the subject and anyone else in the house. In addition, she testified that everyone is brought into the living room as a central area of safety for everyone in the house. Each person is asked his or her identity, and any person found to be in the United States without documents or with questionable documents is taken into custody. Finally, Officer Belluardo testified that, when apprehending a suspect, questions asked are usually just to identify the person and that no other questions are asked until they are taken into custody and transported to the processing area.
The Government also presented the following four documents to support its charge of removability: Form I-213, the Record of Deportable/Inadmissible Alien; Form I-215B, the affidavit of Erick Oliva-Ramos; the face page of a Guatemalan passport; and a Guatemalan consular identification card. Oliva-Ramos objected to that evidence and moved to preclude consideration of all of the Government's evidence obtained during the raid of his apartment and his subsequent arrest. He argued that the evidence had been obtained by exploiting violations of the Fourth Amendment that were both egregious and widespread, and thus the exclusionary rule should apply. He also moved to terminate the proceedings, and requested an evidentiary hearing on his suppression motion.
The Immigration Judge denied the motion to suppress and the motion to terminate the proceedings. As a threshold matter, the IJ noted that the Government did not dispute that Oliva-Ramos had been detained without a warrant. However, the IJ cited to BIA authority that had relied on INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), wherein the BIA had stated: "[E]ven assuming a warrantless arrest, the exclusionary rule, which requires a court to suppress evidence that is the fruit of an unlawful arrest or of other official conduct that violates the
[F]ourth [A]mendment, does not apply in deportation proceedings." The IJ concluded that "[i]n removal proceedings . . . an alien cannot generally suppress evidence asserted to be procured in violation of the Fourth Amendment unless the alleged violation(s) are so egregious as to ‗transgress notions of fundamental fairness.'" (citing Lopez-Mendoza, 468 U.S. at 1050-51).
In rejecting Oliva-Ramos's argument that the Government had entered his home without valid consent in violation of 8 C.F.R. § 287.8(f)(2) (2008), the IJ relied on the Government's assertion that "consent was obtained prior to immigration officers entering the Respondent's residence from a ‗person in control of the site to be inspected,' namely, the Respondent's sister, Clara Oliva."*fn8 The IJ explained: "[T]he I-213 clearly indicates that consent to enter the residence was obtained from Clara Oliva, and that ICE had a warrant for Maria Oliva at that address." In weighing the testimony, the IJ noted that "Ms. Belluardo testified that she ha[d] no independent recollection of the specific events of Respondent's detention, and her testimony is based on the facts as documented in the I-213 which she prepared in the ordinary course of business immediately following the Respondent's detention." The IJ also relied on Officer Belluardo's testimony that "obtaining consent prior to entry is consistent with training ICE officers, including her, receive in the course of employment with DHS." In addition, the IJ stated that Oliva-Ramos's testimony, and his sister Clara Oliva's affidavit, were consistent with the testimony of Officer Belluardo and the I-213. Thus, the IJ found that "consent to enter the residence at 97A Palisade Avenue was properly obtained prior to ICE officers' entry into the residence." The IJ did not, however, evaluate any of the evidence relevant to whether circumstances might have existed to invalidate the alleged "consent" or to determine if the circumstances here implicated the exception to the nonapplication of the exclusionary rule in removal proceedings under Lopez-Mendoza that we discuss in detail below.
Moreover, the IJ ruled that the documents OlivaRamos sought to suppress were contained in what is known as an "A" file. The IJ relied upon United States v. HerreraOchoa, 245 F.3d 495, 498 (5th Cir. 2001), in asserting that an alien maintains no legitimate expectation of privacy in that file, and therefore lacks standing to challenge its introduction into evidence.
Oliva-Ramos also sought to subpoena testimony of the additional ICE officers who were involved in his seizure as well as certain documents that the Government had not produced pursuant to Oliva-Ramos's Freedom of Information Act request ("FOIA").*fn9 Specifically, Oliva-Ramos sought the production of documents related to the search and seizure of his home and arrest, training manuals and documentation of the ICE Fugitive Operation Task Force, relevant ICE policy and procedures, and records related to the ICE officers who arrested him. In addition, Oliva-Ramos moved to subpoena the ICE officers who participated in his arrest. Although the IJ indicated that she wanted to address the subpoenas at an individual merits hearing, she never ruled on the motion to subpoena the additional documents and witnesses.
At a later hearing on removability, the IJ found OlivaRamos removable as charged but granted his request for voluntary departure. Oliva-Ramos then appealed to the Board of Immigration Appeals.
B. Board of Immigration Appeals Proceedings
The BIA first considered Oliva-Ramos's Fourth Amendment claim that the Government had obtained evidence of alienage without proper consent through coercion and duress during the raid of his home. The BIA declined to address the claim as presented and cited to Lopez-Mendoza, explaining that "the Fourth Amendment exclusionary rule is generally not applicable in civil removal proceedings." In a lengthy footnote, the BIA acknowledged the following language in Lopez-Mendoza on which Oliva-Ramos based his Fourth Amendment claim:
We are mindful that [in Lopez-Mendoza] a plurality of the United States Supreme Court opined that, in removal proceedings, "egregious violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence" might potentially warrant a reconsideration of the exclusionary rule's role in civil removal proceedings. INS v. Lopez-Mendoza, supra, at 1050-51. . . . Further, as the respondent makes the argument that the DHS engages in "widespread" violations of the Fourth Amendment (Respondent's Br. at 42), we acknowledge that the Supreme Court provided for the prospective contingency that its "conclusions concerning the exclusionary rule's value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread." Id. at 1050. (citation omitted). However, first, these comments from a plurality of the Supreme Court are obiter dictum; second, no such "good reason to believe" has yet arisen in the eyes of the Supreme Court; and, third, our own precedents, by which we are bound, recognize no such exception to the inapplicability of the exclusionary rule premised on widespread Fourth Amendment violations . . . .
The BIA also acknowledged that its precedential decisions "have provided for the exclusion of evidence against an alien in ‗fundamentally unfair' circumstances." The Board then noted that "this principle of fundamental fairness is rooted in notions of due process of law, not in the Fourth Amendment exclusionary rule." Thus, to the extent that the Board considered Oliva-Ramos's argument at all, it did so "in terms of due process requirements."
The BIA found that the Government had satisfied its initial burden of establishing alienage through the evidence that Oliva-Ramos sought to suppress, including the Form I-213 and Form I-215B, as well as his Guatemalan passport and identification card. The BIA also concluded that OlivaRamos had not rebutted that evidence prior to receiving a grant of voluntary departure. The BIA did not believe that any regulatory violations altered the outcome because the documents the Government presented "[were] inherently reliable and were not shown to have been created under impermissible coercion and duress."
The BIA then considered Oliva-Ramos's challenges to certain administrative regulations governing ICE conduct. First, it considered Oliva-Ramos's coercion claim that the Government impermissibly threatened and coerced him when it inspected the non-public, interior areas of his residence, in violation of 8 C.F.R. § 287.8(f)(2).*fn10 The BIA cited to the IJ's finding "that the DHS first obtained the consent of one of the respondent's familial cohabitants before entering the premises." Since the BIA did not believe that the conclusion was clearly erroneous, the BIA relied upon that finding when considering all of Oliva-Ramos's claims.*fn11
Second, Oliva-Ramos claimed that the Government had violated 8 C.F.R. § 287.8(b)(1) by impermissibly restraining his freedom through threats and coercion during the inspection and investigation of his home. However, the BIA reasoned that INA § 287(a)(1), the statute under which § 287.8(b)(1) was promulgated, permits warrantless interrogation if ICE officers reasonably believe that a person may be unlawfully in the United States. The BIA concluded that requirement was satisfied once Oliva-Ramos presented his Guatemalan passport and identification. The BIA also relied on Oliva-Ramos's own testimony before the IJ that he had no intention of leaving the apartment because he "didn't commit any crime." During the hearing before the IJ, he had been asked: "[W]hat would have happened if you'd asked the officers to leave?" He responded, "I couldn't tell the officers to leave because it's the law and I didn't have anything to tell them."
Third, Oliva-Ramos argued that the Government violated 8 C.F.R. § 287.8(c)(2)(i) when it arrested him without first obtaining a warrant. The BIA rejected that claim because INA § 287(a)(2) specifically authorizes warrantless arrests where ICE officers have reason to believe that someone is here in the United States illegally and poses a risk of flight if not detained. See also 8 C.F.R. § 287.8(c)(2)(ii). The I-213 stated: "A field interview revealed that the subject was an alien unlawfully present in the United States and he was arrested without a warrant in that he appeared to be a flight risk."
The BIA also rejected Oliva-Ramos's claims that regulatory violations that did not implicate the Fourth Amendment entitled him to relief. The BIA did not believe that Oliva-Ramos had established a violation of 8 C.F.R. §§ 287.3(c) or 292.5(b) because he had been properly advised as required before formal removal proceedings were initiated.*fn12
The BIA also rejected Oliva-Ramos's argument that his examination by the same DHS officer who had arrested him in violation of 8 C.F.R. § 287.3(a) entitled him to relief. That regulation provides that "[a]n alien arrested without a warrant . . . will be examined by an officer other than the arresting officer."*fn13
The BIA similarly rejected Oliva-Ramos's final regulatory claim that
DHS had violated 8 C.F.R. § 287.8(d)(1) when it left him and his
fellow detainees locked and unattended in a van several times during a
period while transporting them to the detention facility.*fn14
BIA rejected that contention because Oliva-Ramos had not established a regulatory violation. He had not testified before the IJ about any periods of time when he was left in the van. The BIA noted that Oliva-Ramos had merely directed the IJ's ...