Special Blog for 6.14.19 by Merle Kahn, Esq.
I’m going to start this blog out with a quotation from this case: “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 they were not.” Perez-Cruz v. Barr, No. 15-70530, slip op. at *5 (9th Cir. June 13, 2019). It’s the equivalent of “Mrs. Dalloway said she would buy the flowers herself.” Virginia Woolf, Mrs. Dalloway. Okay, not exactly. It’s not the first line but, I think it is pretty close to the immigration law equivalent of a famous first line. The case goes on to hold that DHS cannot use the evidence obtained as a result of an illegal search to establish alienage for individuals. This case is so important in light of the planned ICE raids that I am blogging about it separately. I hope that people forward this case on to employment-based immigration lawyers as it may help their clients too. In other news a case came down about immigration law in the Northern Mariana Islands. (As of November 28, 2009, U.S. immigration law applies in the territory/commonwealth). And two Board of Immigration Appeals decisions have come down and I will blog about those three cases separately.
NINTH CIRCUIT
DHS Cannot Use Evidence Obtained as a Result of an Illegal Search to Establish Alienage
In a case that can really help our clients, the Ninth Circuit held that DHS cannot use evidence obtained as a result of an illegal search to establish alienage. I am writing that sentence very carefully. It encompasses two really important concepts. The first issue is what constitutes an illegal search? And, second issue is that we are talking about alienage (where a person is from) not identity (who the person is.)
Facts
The facts are important here so bear with me as I do a deep dive. In March 2006, ICE received an anonymous tip that Micro Solutions Enterprises (MSE), a company near Los Angeles that manufactures printer cartridges employed between 200 to 300 undocumented immigrants. Nearly two years later, in February 2008, ICE agents got a search warrant for employment-related documents at the MSE factory and they got criminal complaints and arrest warrants for eight MSE employees. That fact is interesting to me because it shows that ICE knows how to and can, in fact, obtain judicial warrants. We are not talking about the administrative warrants that ICE issues to itself.
Then the case gets even more interesting. The ACLU of Southern California and the Los Angeles chapter of the National Lawyers Guilty were representing Mr. Perez Cruz. They obtained documents through a Freedom of Information Act (FOIA) request. These documents show that ICE intended from the outset to turn the execution of these warrants from a search from employment records to something very different.
“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 notes 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 works” (emphasis added).”
Perez Cruz, slip op. at *6-7. The ACLU and the NLG got these documents as the result of FOIA litigation. Nat’l Immigration Law Ctr. V. U.S. Dep’t of Homeland Sec., No. 2:08-cv-07092-DDP-VBK (C.D. Cal. Feb. 1, 2011). These documents made all the difference in this case. Before I get back to the case, Matthew Hoppock is doing amazing FOIA work. You can access his FOIA work here.
Back to the case. The operation took place as planned. Two days after the court issued the warrants 100 armed and uniformed ICE agents went to the MSE factory. They blocked all visible exits and ordered all the workers to stop working and told them that no one could leave. The workers were not allowed to use their cellphones and could go to the bathroom only with an ICE escort. ICE separated the men and women and put them in separate rooms. In this case it only talks about what happened to the men, likely because the petitioner in this case is male. The men were then told to place themselves into two groups: those with work permits and those without. The men with work permits were escorted out of the room. All of the other men were frisked, patted down, handcuffed, and questioned. Remember that the purpose of this raid was to look at employment documents and arrest eight people.
Gregorio Perez Cruz is from Mexico. He entered the United States without inspection in 1994. Mr. Perez Cruz worked at MSE and was there during the raid. ICE agents handcuffed him, asked him is name, his nationality, his date of birth, and the length of time he worked at the factory. ICE agents had him board a bus while he was still handcuffed and photographed him. He was held in the detention facility overnight and was interrogated multiple times. They released him around 1:00 am. About a month later Mr. Perez Cruz received a Notice to Appear. Based on Mr. Perez Cruz’s statements ICE agents prepared a Form I-213 alleging that he admitted that he was brought to the United States illegally when he was a child. In addition to the Form I-213 DHS produced Mr. Perez Cruz’s birth certificate that an ICE agent obtained in Mexico based on the statements Mr. Perez Cruz had provided in connection with the factory raid.
Mr. Perez Cruz filed a motion to terminate proceedings or, in the alternative, to suppress the evidence arguing that the arrest and interrogation violated federal regulations as well as the Fourth and Fifth Amendment to the U.S. Constitution. The Immigration Judge (IJ) granted the motion to terminate concluding that ICE’s initial detention and its failure to advise Mr. Perez Cruz of his rights violated DHS regulations.
DHS appealed the decision and the Board of Immigration Appeals (BIA) reversed. The BIA relied on a Supreme Court decision which held that detention of residents of a home was valid where a search warrant was being executed. Michigan v. Summers, 452 U.S. 692 (1981). (The Summers case is important to the holding and I will discuss it later in the blog). The BIA held that under Summers, DHS’s detention and arrest of Mr. Perez Cruz did not violate the regulations or 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.”” Perez Cruz, slip op. at *9. The BIA went on to find that even if the detention was improper, the evidence introduced by the government was offered to prove only Mr. Perez Cruz’s identity and could not be suppressed.
The BIA remanded the case and the IJ entered a removal order. Mr. Perez Cruz appealed the order, but the BIA affirmed it and ordered him removed from the United States.
LEGAL ANALYSIS
The first issue that the Ninth Circuit addressed is what, if any, information can the courts suppress as a result of an illegal search and seizure? The first important lesson here, is that “the identity of an alien in removal proceedings is ‘never suppressible as a fruit of an unlawful arrest.’” Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015 n.5 (9th Cir. 2008) quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984). But the courts can suppress evidence of alienage. In this case, if Mr. Perez Cruz can demonstrate that his statements regarding his place of birth and his birth certificate derived from those statements were the fruits of the poisonous tree (I love that phrase – I can’t resist using it) then the courts can suppress it as evidence of alienage – not identity.
The Fourth Amendment, the Regulations, and Immigration Proceedings
Now we get to learn all about the Fourth Amendment and immigration proceedings. As a general rule, the Fourth Amendment’s exclusionary rule does not apply to immigration proceedings. Lopez-Mendoza, 468 U.S. at 1050-51. But, and it’s a big but, there are two exceptions: “(1) “when the agency violates a regulation promulgated for the benefit of petitioners and that violation prejudices the petitioner’s protected interest” and (2) “when the agency egregiously violates a petitioner’s Fourth Amendment rights.” Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018).” Perez Cruz, slip op. at *13. The Ninth Circuit holds that both grounds apply in this case.
The Regulations
We all need to know the suppression regulation – especially in the current political environment:
“If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempted to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.”
8 C.F.R. § 287.8(b)(2). This regulation ““was intended to reflect constitutional restrictions on the ability of immigration officials to interrogate and detain persons in this country,” thereby providing at least as much protection as the Fourth Amendment.” Perez Cruz, slip op. at *14 quoting Sanchez, 904 F.3d at 751. The Ninth Circuit notes that if anything the regulation is even stricter than the Fourth Amendment. The regulation requires reasonable suspicion in every instance before an immigration officer can detain a person for questioning. “So understood, the regulation might not permit exceptions to the reasonable suspicion requirement.” Perez Cruz, slip op. at *14 n. 4.
Everyone agrees (or at least the government did not dispute) that Mr. Perez Cruz was seized for Fourth Amendment purposes when he was detained in his workplace, frisked, and handcuffed. And no one disputes that ICE agents did so without individualized reasonable suspicion. He was seized as part of a raid to obtain employment records. Here’s the important language: “That ICE suspected MSE was employing undocumented workers did not provide reasonable suspicion that Perez Cruz himself was undocumented. It is a fundamental tenet of Fourth Amendment law that “a search or seizure of a person must be supported by probable cause particularized with respect to that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979).” Perez Cruz, slip op. at *15. Reasonable suspicion is no different. The government cannot frisk for weapons on less than a reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized search is taking place. Ibid, quoting Terry v. Ohio, 392 U.S. 1 (1968).
The government argued that the Supreme Court’s decision in Michigan v. Summers permitted their agents to detain Mr. Perez Cruz without suspicion when they arrived at the factory to execute the search warrant. The Ninth Circuit shot this argument down finding that Mr. Perez Cruz’s seizure was not justified as a valid Summers detention.
The Fourth Amendment
Before we really get into the Fourth Amendment, we should examine the language of the amendment. It’s not too long. “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
The general rule is that Fourth Amendment seizures are ‘reasonable’ only if based on probable cause.” Dunaway v. New York, 442 U.S. 200 (1979). But the converse is also true, if a seizure is supported by probable cause that action is reasonable regardless of the subjective intent of the officers. Ashcroft v. al-Kidd, 563 U.S. 731 (2011). “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U.S. 806, 813 (1996). “But – and this point is the critical one for present purposes – “purpose is often relevant when suspicionless intrusions pursuant to a general scheme are at issue.” City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000)(emphasis added).” Perez Cruz, slip op. at *17. For Mr. Perez Cruz’s case, the subjective intention of the ICE agents matters.
The Ninth Circuit elucidates its point explaining that no suspicion at all is required for enforcing certain regulatory schemes such as routine inspections of houses and businesses for building code violations. Those searches do not violate the Fourth Amendment as long as the government had a proper regulatory purpose for enacting the scheme and there is no reason to believe that the inspection was actually a ‘pretext’ for obtaining evidence of violation of other laws. Perez Cruz, slip op. at *18.
Then the Ninth Circuit then does a deep dive on Summers. In Summers, police officers detained George Summers as he left a house at which the police were preparing to execute a search warrant. The officers learned that Mr. Summers owned the house. They found drugs in the basement of the house and when they searched Mr. Summers, they discovered an envelope with heroin in his coat pocket. They charged Mr. Summers with possession of heroin. The Supreme Court upheld the search of Mr. Summers. “[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705 (1981).
So why doesn’t Summers apply here? Well, “Perez Cruz has presented substantial, uncontroverted evidence that the search authorized by the warrant was far from the ICE agents’ central concern. Instead, the agents’ principal goal was to detain, interrogate, and arrest a large number of individuals who worked at the MSE factory, hoping to initiate removal proceedings.” Perez Cruz, slip op. at *21. The warrant was for employment documents and for the arrest of eight individuals. The warrant was not to arrest between 150-200 suspected undocumented individuals. And, the Summers exception is to permit detention of the people who are near the search premises for three reasons: (1) officer safety; (2) to facilitate completion of the search; and, (3) to prevent flight. But an inventory search is impermissible if “the police…acted in bad faith or for the sole purpose of investigation.” Colorado v. Bertine, 479 U.S. 367, 372 (1987).
While the Government relied on Summers, they ignored subsequent interpretations limiting Summers. Namely, that officers may not rely on Summers to detain individuals who are found beyond the immediate vicinity of the premises to be searched. Bailey v. United States, 568 U.S. 186 (2013).
“Bailey instructs that Summers does not approve a detention without any individualized suspicion where the officers’ primary purpose is not conducting “a safe and efficient search pursuant to a warrant. Id. at 200. On the evidence before us, that was precisely the case here – the agents’ focus was not on conducting a safe search but on engaging in a preplanned investigation and detention of a large number of individuals present at the premises where the search was authorized.”
Perez Cruz, at *24. Here is the critical language:
“We hold that Summers’ categorical authority to detain incident to the execution of a search warrant does not extend to a preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion.”
Id., at *25.
Now before you get too excited, just because the ICE agents had an investigative purpose to detain Mr. Perez Cruz does not invalidate the reliance on Summers. Having a criminal investigative motive does not by itself render an administrative stop pretextual. United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017). The question to ask is whether “the officer would have made the stop in the absence of the invalid purpose.” Perez Cruz, slip op. at *25 quoting Orozco. To meet this standard the defendant must show that the stop would not have occurred absent an impermissible reason.
The Ninth Circuit found that Mr. Perez Cruz met this burden. The ICE planning documents show that the agents planned to detain and interrogate any and all workers at the factory to determine whether they were undocumented. “Another memorandum issued before the raid explained: “ICE anticipates executing a federal criminal search warrant at MSE in order to administratively arrest as many as 100 unauthorized workers believed to be from Mexico and Central America” (emphasis added). Those statements alone establish that the central purpose of the raid was not to find documents but to arrest undocumented workers.” Perez Cruz, slip op. at *26. Plus, the post-raid documents don’t mention the search at all! They focus on the workers’ detention. “Notably in contrast to the details regarding the detentions, there is no information in the record about the search itself. It is therefore impossible to determine whether the agents even searched for the records purportedly sought….” Perez Cruz, slip op. at *28.
Mr. Perez Cruz contends that if suppression is warranted his removal proceedings should be terminated without prejudice. The government has not offered any other evidence of Mr. Perez Cruz’s alienage other than the Form I-213 and his birth certificate, both of which are fruits of the poisonous tree. The Ninth Circuit terminated removal proceedings without prejudice.
Two important take-aways from this case. One is the incredible importance of FOIAs and of FOIA litigation. It truly made all the difference here. The second, is that ICE simply cannot go into restaurants or factories under the pretense of searching for records and then arrest all the undocumented workers. A huge thank you to the ACLU and the NLG.