Weekly Blog for 4.5.19 by Merle Kahn, Esq.
One immigration case came down from the Ninth Circuit this week denying rehearing en banc about suppression of evidence in immigration proceedings. But there was a vigorous dissent which makes me think we might not be hearing the end of this issue. It is the third time the Ninth Circuit has ruled on this case. Three very interesting District Court decisions have recently come down. One is a preliminary injunction enjoining the government from indefinitely detaining asylum applicants without a bond hearing. One is a preliminary injunction enjoining the government from forcing asylum applicants on the southern border to wait in Mexico. The final one is an order compelling discovery on a consular processing case. Yes, even after Kerry v. Din, there is something we can do about consular processing. I will post a separate blog about the three District Court cases.
In researching this blog, I came across a very interesting case that we might be able to use to provide relief for the separated families. In a 2008 NSEERs case (remember NSEERs – all males from certain predominantly Muslim countries had to register with the U.S. government after 9/11?) the Second Circuit held, “[w]e may assume, without deciding, that a regulatory violation or violations so egregious as to shock the conscience would call for invalidation of the deportation orders with prejudice to the renewal of deportation proceedings against a petitioner whose rights were violated.” Rajah v. Mukasey, 544 F.3d 427, 447 (2nd Cir. 2008). Anyone who is representing parents or children who have been subjected to family separation should consider filing a motion to have their removal hearing dismissed with prejudice or file a motion to reopen to terminate the underlying removal hearing proceeding with prejudice. We have support in both the Ninth and Second Circuits. I am not sure what the parents’ or children’s status would be (PRUCOL maybe?), but it could be a first step before there is a legislative fix to this horror.
NINTH CIRCUIT
The Ninth Circuit Denies a Sua Sponte Motion to Rehear a Suppression Case En Banc – Third Time’s a Charm!
I am now blogging about this case for a third time, and this time, I think I finally understand it. The Ninth Circuit held that where DHS violates its own regulations regarding stops, searches, and seizures, the proper remedy is to terminate proceedings without prejudice.
FACTS
Back in 2010 Luis Sanchez was on an afternoon fishing trip with a few friends. It was supposed to be a short trip – an afternoon on the water. They took the boat off the Channel Islands in Southern California. (If you ever have a chance go to the Channel Islands, it is amazing. The boat trip to the islands is about an hour and I have never seen so many dolphins in my life.) Their boat broke down and they radioed the Coast Guard asking for help. The Coast Guard came and towed them back to shore. No one ever alleged that the boat went outside the U.S. coastal waters and no one ever argued that these people used the boat to smuggle contraband. They were simply a group of friends on a boat ride. One of the passengers even brought their fourteen-month-old infant on the trip. However, the Coast Guard officers who towed the boat back to shore had arranged for eight Coast Guard officers to be waiting for them when they came back to shore.
The Coast Guard officers arrested the people on the boat and turned them over to CBP on suspicion of being in the country illegally. CBP detained Mr. Sanchez for two hours; strip-searched him; kept his wallet; and issued a Form I-213 (Record of deportable/inadmissible alien). Nine months later, ICE served Mr. Sanchez with a Notice to Appear. At the hearing, along with a copy of the I-213, ICE had copies of Mr. Sanchez’s applications for Family Unity and for Employment Authorization. They used all of the documents to establish alienage. Mr. Sanchez challenged the finding of alienage but the IJ and the BIA held that even without the I-213 the government had established alienage. They ordered Mr. Sanchez removed to Mexico. The case went to the Ninth Circuit.
NINTH CIRCUIT PROCEDURAL HISTORY
Mr. Sanchez challenged the search and seizure on regulatory and Fourth Amendment grounds. Mr. Sanchez argued that the search and seizure were a violation of 8 C.F.R. § 287.8(b)(2). The regulation provides that an immigration officer may briefly detain an individual only if the officer “has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in United States.” In 2017 the Ninth Circuit agreed with Mr. Sanchez and held that the search and seizure were an egregious violation of 8 C.F.R. § 287.8(b)(2). The Ninth Circuit held, “It is clear that the Coast Guard officers violated 8 C.F.R. § 287.8(b)(2) because they detained Sanchez solely on the basis of his Latino ethnicity, with no reasonable suspicion that criminal activity was afoot.” Sanchez v. Sessions, 870 F.3d 901, 912 (9th Cir. 2017) withdrawn 895 F.3d 1101 (9th Cir. 2018). Because the government had enacted the regulation for the benefit of noncitizens and because Mr. Sanchez was prejudiced by violation of this regulation, the Ninth Circuit remanded the case to the BIA with an order to terminate it. Sanchez v. Sessions, 870 F.3d 901 (9th Cir. 2017). In July 2018 the Ninth Circuit withdrew the decision.
On September 19, 2018, the Ninth Circuit issued its second decision on this case. Once again, they found that there was an egregious regulatory violation and determined that the proper remedy in this case was to remand the case. A remand would allow the Government an opportunity to rebut Mr. Sanchez’s prima facie showing that there was a regulatory violation and/or to rebut the finding that the violation was egregious. If the Government failed to rebut Mr. Sanchez’s showing, the BIA was to consider whether Mr. Sanchez was entitled to termination of proceedings without prejudice. Sanchez v. Sessions, 904 F.3d 643 (9th Cir. 2018). You can read my blog about this case here. Then a judge on the Ninth Circuit sua sponte requested a vote on whether to rehear the case en banc. The Ninth Circuit voted against it. Judges Paez and Wardlaw wrote a concurrence on the denial of rehearing en banc. Judge O’Scannlain joined by Judges Callahan, Bea, Ikuta, Bennett, and R. Nelson wrote a dissent on the decision to deny rehearing en banc. With this blistering dissent, the Government might seek cert before the Supreme Court.
MAJORITY OPINION
The majority framed the issue as how to determine the proper remedy for a regulatory violation. (The dissent framed the issue as a pure Fourth Amendment case with a pure Fourth Amendment remedy (suppressing the I-213)). The majority held that an egregious violation of 8 C.F.R. § 287.8(b)(2) could warrant a termination of removal proceedings without prejudice. The Ninth Circuit cited to the Second Circuit’s decision in Rajah v. Mukasey, 544 F.3d 427 (2nd Cir. 2008). I am going to do a quick detour by discussing Rajah because I think this case might be able to help the families of the separated parents and children. Rajah is an NSEERs case where the Second Circuit discusses the three possible remedies for regulatory violations. These remedies include: (1) invalidation and termination of deportation orders and deportation proceedings with prejudice; (2) termination of deportation proceedings without prejudice; or, (3) suppression of all evidence obtained as a result of the regulation violation(s).
Invalidation of Deportation Orders with Prejudice
The Second Circuit held that invalidation of deportation orders with prejudice is the appropriate remedy where there is a “regulatory violation or violations so egregious as to shock the conscience.” Rajah, 544 F.3d at 447. “By way of contrast, conduct of a less culpable nature would not suffice to justify the draconian remedy of permanently preventing the deportation of an otherwise deportable [noncitizen].” Id. This remedy is the one we might be able to use to help the separated families.
Termination of Proceedings without Prejudice
The Second Circuit divided this remedy into two subcategories. First, they held that regulatory violations that occur during a removal hearing that affect the fundamental rights derived from the Constitution or the federal statutes require a termination of proceedings without prejudice without even a showing of prejudice to the noncitizen. However, in the case of pre-hearing violations, the noncitizen must show that the violations may have affected the outcome of the proceeding or that the violations shocked the conscience or were a deprivation of fundamental rights. If the noncitizen met this burden, the adjudicator should dismiss the case without prejudice. Rajah, 544 F.3d at 447-448.
Suppression of Evidence
The third possible remedy is suppression of evidence. The Second Circuit held that immigration courts should suppress evidence in proceedings when an egregious or fundamentally unfair violation of the applicable law occurs or when a violation of the applicable law undermines the reliability of the evidence in question. Rajah, 544 F.3d at 446.
Back to the Ninth
The majority, relying, in part, on Rajah remanded to the BIA to allow the Government to rebut Mr. Sanchez’s prima facie case and to allow the adjudicator to decide whether to terminate the case without prejudice.
THE DISSENT
The dissent framed the case as a pure Fourth Amendment case and held that the proper remedy a Fourth Amendment violation is a Fourth Amendment remedy – suppression of evidence. “Under our circuit’s case law, Sanchez may (and indeed did) seek the exclusion of wrongfully obtained evidence from his immigration proceedings.” Sanchez v. Barr, No. 14-71768 slip op. at *13 (O’Scannlain, J. dissenting). Judge O’Scannlain notes in a footnote that he believes the Ninth Circuit improperly applies the exclusionary rule in general to civil removal proceedings. Sanchez, slip op. at *13-14 & n. 4. But that even if the immigration court were to suppress the tainted evidence (the Form I-213) it was irrelevant because there was independent evidence that Mr. Sanchez is a citizen of Mexico and is in the United States without proper status. The dissent says, “[t]he [majority] opinion seems to invoke a straightforward compensatory-justice theory.” Sanchez, slip op. at *14 (O’Scannlain, J. dissenting).
Judge O’Scannlain notes that the exclusionary rule is not designed to restore the defendant in a criminal case to their pre-violation position; but, rather, it is designed to deter future violations by offering the defendant a windfall – the exclusion of incriminating evidence at trial. Sanchez slip op. at *15 (O’Scannlain, J. dissenting). The dissent then discusses the seminal Supreme Court decision on suppression in deportation proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). In Lopez-Mendoza the Supreme Court reiterated that the rule in criminal cases is that the courts may suppress statements and other evidence obtained as a result of an unlawful and unwarranted arrest if the link between the evidence and the unlawful conduct is not too attenuated. Wong Sun v. United States, 371 U.S. 471 (1963).
The Lopez-Mendoza Court cites to its decision in United States v. Janis, 428 U.S. 433 (1976) which sets forth a framework for deciding in what types of proceedings (other than criminal proceedings) the application of the exclusionary rule is appropriate. The Janis court created a balancing test weighing the likely social benefits of excluding unlawfully seized evidence against the likely costs. They noted that the primary purpose of the exclusionary rule is to deter future unlawful police conduct. Lopez Mendoza, 468 U.S. at 1042. The Court applied the Janis test to a deportation case and held that the exclusionary rule was not appropriate, in part because “INS has its own comprehensive scheme for deterring Fourth Amendment violations by its officers.” Lopez-Mendoza, 468 U.S. at 1045. But, as the majority in Sanchez points out, in this case, the Government violated its own regulatory framework and back-stop; so Lopez-Mendoza does not apply. Sanchez, slip op. at *5 & n.1. The regulatory back-stop failed.
After citing to Lopez-Mendoza, the dissent notes that the Court’s authority to compel an agency to follow its own regulations must have some source in the Constitution or in the federal statutes. But that the majority never identifies the legal basis for its regulatory violation theory. He opines that the Fourth Amendment itself cannot sustain the panel’s holding. Sanchez, slip op. at *19 (O’Scannlain, J. dissenting).
The dissent then voices its concern that termination of removal proceedings even without prejudice will incentivize noncitizens and immigration lawyers to “inject inefficiency into deportation proceedings.” Sanchez, slip op. at *22 (O’Scannlain, J., dissenting). Then the dissent notes that even if the case is dismissed without prejudice “DHS could then serve Sanchez with a new Notice to Appear and start all over again. The opinion offers Sanchez nothing more than a meaningless formality before his inevitable removal.” Sanchez, slip op. at *23 (O’Scannlain, J., dissenting).
Sigh. Now I understand how the federal circuit courts work. I understand that they are adjudicating everything from ERISA cases to intellectual property cases to criminal cases to immigration cases to….whatever cases. These judges are amazing. That said, I think they can use a quick immigration course. Of course Mr. Sanchez might be eligible for relief that he was not eligible for when removal proceedings started years ago! He might have married a U.S. citizen and be eligible for an immigrant visa. He might be eligible for non-lawful permanent resident cancellation of removal. He might have a U.S. citizen child who is now twenty-one years of age. His removal is by no means “inevitable.” The dissent then says, “[d]oubtless, enterprising lawyers will seize on the opinion’s extravagant reasoning to seek still-more intrusive remedies in civil deportation proceedings. We should not invite their spurious arguments.” Sanchez v. Barr, slip op. at *23 (O’Scannlain, J. dissenting). I guess it’s a step up from being called a “dirty immigration lawyer.”
The dissent concludes by saying the sole question in a removal hearing is whether a noncitizen has the right to stay in the United States. Here the Government can establish that Mr. Sanchez is in the United States without status and can use admissible evidence to meet its burden. “[T]he opinion’s imposition of an extraordinary remedy wastes everyone’s time, for it does nothing but delay the petitioner’s inevitable removal.” Sanchez v. Barr, slip op. at *25 (O’Scannlain, J. dissenting). As I said, with a strong dissent, this case might be on its way up to the Supreme Court.
Excellent blog! Thank you! Maris Liss