order of suppression - ij sichel (ny imm. ct., oct. 3, 2007)

8/14/2019 Order of Suppression - IJ Sichel (NY Imm. Ct., Oct. 3, 2007)

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UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT26 FEDERAL PLAZANEW YORK, NEW YORK

File No,: A

In the Matter of:IN REMOVAL PROCEEDINGS

Respondent

CHARGE: INA 212(a)(6)(A)(i) Present without Admission or ParoleAPPLICATIONS: Motion to Suppress; Motion to Tenninate.ON :!EHALF OF THE RESPONDENTRichard Geduldig, Esq,ISO Broadway, Suite 1600New York, NY 10038

ON BEHALF OF THE DEPARTMENTLesl\e S, Evans, Esq,Assistant Chief Counsel26 Federal PlazaNew York, New York 10278

DECISION AND ORDER OF TIlE IMMIGRATION JUDGEI. Procedural H i s t o r ~

On July 27, 2005, while sitting in a bus station in Jacksonville, Florida, the respondent wasapproached by two agents of the bureau ofCuslOms and Border Protection ("CBP") of theDepartment of Homeland Security ("Department" or "DHS"), After answering their questions and,upon request, providing them with !D, the respondent was arrested and transported to a CBP office.Later the same day, he signed paperwork, and was served with a Notice to Appear ("NT A ' ~ ) , charginghim with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or"Act"), as an alien present in the United States without being admitted or paroled, [Ex. I.)

On November 17,2006, counsel for respondent filed with this court a motion to suppress allevidence of espondent' s identity, alienage and lack oflawful immigration status, and to tenninate

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removal proceedings, Counsel argues that the manner in which such information was obtained by thegovernmentviolated the respondent's due process rights under the Fifth Amendment of theConstitution, The attorney for Immigration and Customs Inspection ("ICE") filed a response opposingthe motion, On June 8, 2007, a hearing was held on the motion, after which the Court reserveddecision,II. ExhibitsThe following documents were marked as exhibits and included in the record Mthe proceedings:Exhibit I: Notice to Appear, dated July 27, 2005,Exhibit 2: Respondent's affidavit, dated November 10,2006,Exhibit 3 (for identification purposes only): Form 1-213, Record ofDeportable Alien, dated July 27,

2005,Exhibit 4 (for identification purposes only): Form 1-214, Waiver ofRights,Exhibit 5 (for identification purposes only): Form 1-836, Notice of Rights and Request for Disposition,Exhibit 6 (for identification purposes only): Copy of 1-551 and social security card,Exhibit 7 (for identification purposes only): Central Index System ("CIS") printout dated July 27, 2005,III. Testimony

On June 8,2007, the Court heard the testimony ofRoss E. Parrish, Jr., Senior Patrol Agent,eBP, and of the respondent. Their testimony is summarized below,

Agent Parrish testified telephonically that he had been employed with INS/CBP for 29 yearsand eight months and was preparing to retire, He had been a Senior Patrol Agent since, November,1987, and was stationed in Jacksonville, Florida, His duties there included patrolling tbe Greyhoundbus station on Pearl Street, which is a major transportation hub, He said that the number of days aweek he patrolled there varied, but in a given week he would personally arrest five aliens at the bus.terminal.

Agent Parrish said that he would approach people in the lobby and ask if they would talk tohim. He said that he would talk ti) everybody, He would patrol in full uniform, which included a badge,a holster and firearm, a magazine holder, handcuffs and pepper spray, He said that he would say helloand ask if the individual would speak to him; he would then ask where the individual was from, If theanswer was a foreign country" he would ask for their immigration documents, and then call the radioroom to check their status,

The witness had no independent recollection of the respondent, notirig that the incident hadoccurred 23 months earlier, The witness indicated that he had reviewed the 1-213 prior to testifying, Hestated that the 1-213 "pretty much" recorded his full encounter with the respondent on July 27,2005,

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He stated that he was in unifonn that day and accompanied by Supervisory Agent Peter Lobur.Based UpOI) his review of the 1-2J3, Agent Parrish believes that he spoke with the respondent

that day. He asked the respondent ifhe would speak with him; the respondent replied "yes". Thewi tness indicated that the respondent told him he was from Israel. The witness then asked him for hisimmigration documents. He stated that the respondent did not move away or indicate that he wanted todiscontinue the conversation.

Agent Parrish continued that he then ran a record check on the respondent, which indicatedthat the respondent was on the NAILS lookout list. Such list contained the names ofindividuals whowere previously deported or were otherwise out of status. Based upon such information, the witnessconducted a "pat down" search of the respondent for weapons and detained him. The respondent wasread the Miranda warnings. The witness kept his tlreann in the holster throughout. The witness statedthat a further search of the respondent back at the office revealed a counterfeit I-55! "green card"containing an alien number belonging to an entirely different individual. He said that there was also a"positive hit" on the responderit's fingerprints.

On cross-examination, Agent Parrish stated that he did not remember the particulars, butremembered the respondent frol11 the picture in front of him. The witness couldnot recall at all howmany people were in the waiting room at the time he encountered the respondent, nor could he recallhow many people he. approached prior to the respondent. He was also unable to recall how manyAfrican-Americans, Caucasians, or Latinos were in the waiting room at the time. He stated that both heand Agent Lobur were in uniform and anned. He could not recall if they entered the waiting roomtogether. He could not recall i f he respondent was standing or seated.

The witness said that he was "somewhat familiar" with the Florida penal code, but did notsuspect the respondent of committing a crime, adding that it was "a consensual c o n v e r ~ a t i o n . " Whenasked ifbefore questioning the respondent, the witness suspected the respondent of violating any stateor tederal criminal statute, the witness responded that "there is no statute that applies here". Whenasked again whether he thought the respondent had committed a crime, the witness responded "No, Ididn't know." When then asked what made him think the respondent had violated an immigration lawbefore speaking to the respondent, simply from Jooking at him,tlw witness responded that he didn'tknow. Lastly, the witness stated that he did not know how many other people from the Middle East hesaw getting off of the bus that day.

On redirect, the witness stated that he is familiar with the provisions of 8 C.F.R. 287.8(b)(1).He said that consistent with such regulation, he questioned the respondent but did not impede him from'walking away. He said that hegenel'ally does not stand right on top of someone being questioned forsafety reasons, but stands maybe two or three feet away.

At the conclusion of questioning by the two sides, the Court asked two additional questions of3


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the witness. In response to the first, the witness stated that the respondent 's Middle Eastern appearancein no way factored into his decision to speak to him, as he does not practice racial prot1ling and speaks.to peopleof all races and ethnicities. Secondly, he stated that he himself is six feet tall and weighs 215pounds; Agent Lobur (who was his supervisor at the time) stands approximately five feet ten or eleveninches tall and weighs between 160 and 170 pounds.

The respondent testified in person. He said that on July 27,2005 he was traveling from NewYork City to Florida by bus. He said that the bus was pretty full. He does not believe that there wereany other IsraeliS or Arabs On the bus. The bus made a rest stop in Jacksonville, Florida, whereeveryone on the bus (40 to 45 people) exited. The respondent said that the bus temlinal was crowdedto begin with. He said that people in the terminal were speaking Spanish and English, and includedAfrican Americans, Caucasians and Latinos, but no other Israelis or Arabs.

The respondent said that he had a suntan, so his complexion was darker than in cOurt. Therespondent said that the two CBP agents walked directly to him, passing at least 40 others en route. Hedid not see them question a single person other than himself. The respondent said that the agents wereWearing uniforms and had guns. He believes they approached him because of his Middle Easternappearance.

The respondent said that he was seated; the two agents remained standing. Agent Parrishspoke first, asking the respondent where he was from. When he answered "New York City", he wasthen asked where he is from Originally. He responded "Israel". He said that the questions ,vere asked ina nicetone ofvoice, but that he did not feel safe refusing to answer, and felt that he did not have thechoice to walk away. He said that he was then asked for ID. He stood up to give the agenthis ID, butwas then ordered to "sit back down." He was not handcuffed at this point, and the agents' gunsremained in their holsters. The respondent said that his answers to the questions were not providedvoluntarily. He said that the officers were blocking him, "they were so close to me."

He said that Agent Parrish did most of the talking; "he is the tailer, older guy." After providinghis ID, Agent Parrish told him it would be better ifhe answered their questions; he would make thingseasier on himself. The respondent said that no one wouldJeel free to leave under those circumstances .He said that after this, he was handcuffed with his hands behitld his back, taken into the empty bus toget his luggage, and told that he had the right to get a lawyer.

On cross-examination, the respondent said that he had been in the terminal five to ten minuteswhen he was approached by the CBP agents. He said that he was approached out of nowhere, as hewas just sitting there dOing nothing. He said that he had no possibility of asking the agents why theywere questioning him, or of saying "excuse me, I need to move." He said that he felt as if the agentswere coming at him to grab him. He said that he was not told that he had no choice but to answer thequestions, "but it felt like that." He said that when he was first approached, he was not told that he wasunder arrest. He also felt that he could not tell the agents that they were too close to him, but "it felt like

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SO)neone put me in prison."The respondent said that at first, he did not know that the agents were immigration officers, but

he came to know it from the questions they were asking.

IV. Legal StandardA motion to suppress may be 'granted when it is supported by a specific and detailed statement

based on p ~ r s o n a l knowledge which establishes aprimaJacie case for suppression. Matter ofBa:r;:cenas, 19 I. & N. Dec. 609 (BIA 1998). To set forth a prima facie case, the statements in themotion for suppression must ,be specific and detailed, they must be based on personal knowledge, andthe articles to be suppressed must be enumerated. Matter ofWong, i3 I. & N. Dec. 820, 82122(BrA 1971). Ifaprimafacie case is established, the burden then shifts to the Department to justifY themanner in which it obtained the evidence at issue. Matter ofBurgos, 15 L & N. Dec. 278, 279 (BIA1975); Matter of Tang, 13 I. & N. Dec. 691 (BIA 1971). The Department's failure to justifY theconduct of its agents resolves the issue in favor of suppression. See Matter ofBenitez, 19 L & N. Dec.173 (BIA 1984); Matler ofTang, 13 r. & N. Dec. at 691.

To briefly detain a person for questioning, an officer needs reasonable suspicion based onspecific articulable facts. See Terry v. Ohio, 392 U.S. 1 (1968). The same is true in the immigrationcontext. 8 C.F.R. 287.8(b)(2). The standard to be used to determine if an action amounts to aseizure is whether a "reasonable person would have believed that he was not free to leave." U.S. v.Mendenhall, 446 U.S. 544,554 (1980); see also; U.S. v. Tehrani, 49 FJd 54, 62 (2dCir 1995). Thethreatening presence of several officers is an example of a circumstance that might indicate a seizure.See Mendenhall, 446 U.S. at 554. Under the exclusionary rule, evidence seized in violation ofConstitutional protections of the Fourth Amendment cannot be used against the accused at trial. SeeMapD v. Ohio, 367 U.S. 643, 648 (1961); Weeks v. U.S., 232 U.S. 383,393 (1914).

Generally, the Fourth Amendment exclusionary rule does not apply in removal proceedings.See INS v. Lopez-Mendoza,.468 U.S. J032 (1984), A violation of due process under the FifthAmendment can provide the basis for suppression of evidence, though. It is well-settled that the FifthAmendment entitles aliens within the United States to due process of law. U.S. Const., amend. V(guaranteeing due process of law to all persons); Reno v. Flores, 507 U.S. 292 (1993); Plyler v. Doe,457 U.S. 202, 210 (1982) (stating that "even aliens whose presence in this country is unlawful havelong been recognized as 'persons' guaranteed due process of law by the Fifth and FourteenthAmendments"); Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (recognizing that "theDue ProcessClause applies to all 'persons' within the United States, including aliens, whether their presence here islawful, unlawful, temporary, or pemmnent"); See also Felzcerek v. INS., 75 F.3d 112, 116 (;!d Cir.

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1996); Matter ofToro, 171. & N. Dec. 340, 343 (BIA 1980).

Ifthe manner in which evidence is seized is so egregious that its probative value is undennined,or reliance on it would transgress notions of fundamental fairness, the use of that evidence would violatethe Fifth Amendment requirement of due process. See Lops;z-Mendoza, 468 U.S. at 10505 I; Matterof Velasquez, 191. & N. Dec. 377 (BIA 1986); Matter ofToro, 17 L & N. Dec. 340; Matter ofSandoval, 171. & N. Dec. 70 (BIA 1979). Therefore, evidence obtained pursuant to an egregiousFourth Amendment violation can be suppressed under the Fifth Amendment. Matter of Toro, 171. &N. Dec. at 343 (egregious Fourth Amendment violation may render evidence inadmissible under thedue process clause).

A constitutional violation that is invalid (i.e. based on no reason at all) will not be foundegregious unless the seiZUre is suffiCiently severe, or if the stop was based on race (or some othergrossly improper consideration). Almeida-Amaralv. Gonzales, '461 F. 3d 231, 235 (2d Cit. 2006).v. legal Analysis

The Court finds that the Respondent has establishedaprimaj'aciecase for the suppression ofallevidence procured during and after his arrest on July 27,2005. The Respondent submitted a motion tosuppress on November 17, 2006 that met the necessary requirements ofaprima/aciecase. See Matterof Wong, 13 I. & N. Dec. at 821 822. He specified a Constitutional basis for his motion: adueprocessviolation of he Fifth Amendment. Respondent further argued aviolation of he regulatory requirements of8 C.F R. 287.8(b)(2). He also submitted an affidavit with his motion that gave a detailed and specificaccount of the events leading to his arrest. FinaIly, the Respondent specified the evidence to besuppressed, namely, "all evidence ofRespondent's identity, alienage and lack oflawfhl immigration status"The motion was not based upon conjecture, but rather on the persona] knowledge ofthe respondent. Id.The mOlion was supported by specific testimony. See Matter of Barcenas, supra at 611.

Having heard the respondent's testimony in person, and having had the opportunity to observe hisdemeanor, and having compared his testimony to the evidence ofre:cord, including respondent's ownaffidavit, as weI! as the telephonic testimony ofAgent Parrish, th.e Court finds the respondent's testimonyto have been credible in its entirety.

111e Court must next analyze the facts presented and determine whether suppressionis warranted.It should be noted that the events in question did not OCCur at the border. The Department has not put forthany argument or submitted any evidence to establish that the bus station in Jacksonville, Florida is thefunctional equivalentofthe border. Rather, the Depaltment's sole argtlment is that the questioning oftherespondent did not constitute a detentive stop or arrest as described in 8 C.F.R. 287 .8(b)(2) and (3).The Department argues that the incident in question constituted casual questioning pursuantto 8C.F.R.287 .(b)( I), to Which the respondent could have refused to answer or walk away. The Department also

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relies on the Supreme COUli decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) in arguing thatcredible evidence gathered in connection with peaceful anests by INS officers need not be suppressed inan INS civil deportation hearing.

While Lopez-Mendoza,slIpra.held that generally, the Fourth Amendment exclusionary rule doesnot apply in removal proceedings, as discussed above, a seizure which is egregjouslyviolative of he FourthAmendment can provide the basis for suppression ofevidence based upon aviolation ofdue process underthe Fifth Amendment. Almeida-Amaral v. Gonzales, supra; Gonzales-Rivera v. INS, 22 F. 3d 1441 (9 thCir. 1994). Additionally, evidence maYbe suppressed based upon violation ofa regulatory requirementby a Department officer, where the regulation in question serves a purpose ofbenefit to the alien and theviolation prejudiced interests ofthe alien which were protected by the regulation. Matter ofGarcia-Flores,J7 I&N Dec. 325 (BIA 1980). Here, the respondent argues that the CBP Agents acted in violation of8C.F.R. 287.8(b)(2).

If, as the Department argues, the agents' questioning of respondent fell short ofconstituting aseizure, there can be no Constitutional violation. In considering the Department's argument, the manner ofquestioningmust be examined. "As our case law makes clear, there are three levels of nteraction betweenagents of he goverrunentand private citizens." U.S. v. Tehrani,,49 F. 3d 54, 58 (2d Cir. 1995). This Courtwil I find that the initial questioning ofthe respondent did not constitute an arrest, the third such category.Thus, the inquiry here is on which of he remaining two categories ofinteraction occurred. In Tehrani,supra, the Second Circuit stated that "[c 6nsensual encounters require no justification so 'long as the policedo not convey a message that compliance with theiT requests is required: [U.S. v.l Glover, 957 F. 2d[1004] at 1008 (quoting Florida v. Bostick, 501 U.S. 429, 435 (1991. Investigative detentions, thesecond categOl)', require 'reasonable suspicion' to believe that criminal activity has occurred or is aboutto occur. Glover, 957 F. 2d at 1008."

The language of he applicable reglilations mirrors the above case law. 8 C.P.R. 287.8(b) statesin part: (1) Interrogation is questioning designed to el icit specific information. An immigration officer, likeany other person, has the right to ask questions ofanyone as long as the immigration officer does notrestrain the freedom ofan individual, not under arrest, to walk away." Thus the questioning described in8 C.F R. 287 .8(b)(I) would constitute what the courts have defined as a consensual encounter. 8C.F.R.287.8(b)(2) continues: "If he immigration officer has a reasonable suspicion, based on specific articulablefacts, that the person being questioned is, or is attempting to be, engaged in an offense against the UnitedStates or is an alien illegally in the United States, the immigration officer may briefly detain the perscin forquestioning." The preceding language describes what the courts have termed an investigativedetention. ,

In his testimony before this Court, Agent PalTish admitted that priOlto approachingand speakingwith the respondent, he had no basis at all to support a reasonable suspicion that the respondent was eitherengaged in an offense against the U.S., or was an alien illegally in the U.S. Thus, an investigative detentionofthe respondent would have been improper. The keyquestion is therefore whether the two agents' initial

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interaction with the respondent constituted a permissible consensual encounter, or an impermissibleinvestigative detention.

In the instant case, the respondent was seated; the two CBP Agents stood directly in frontofhimat 45 degree angles (according to the respondent's affidavit). The respondent stated that they stood rightover him, at a distance ofone to two feet Agent Parrish, who could not remember any ofthe specificsofthis incident, stated that he could not remember whether the respondent was standing or sitting; he also saidthat he generally stood tvvo to three feet from an individual during questioning. Such testimony wil! not befound to refhte the respondent's account. AgentPalTish also stated that he is six feet tall and weights 2J5pounds, and that he and his supervisor were in uniform, with holstered guns, ammunition, handcuffs andpepper spray visibly attached to their belts. When the respondent stood up to provide Agent Parrish withrD, he was then told to sit back down. The questions were askedof he respondent ina pleasant tone. Theagents did not remove their guns from the holster. The respondent was neither told that he had or did nothave the right to decline to answer the questions or to leave.

The respondent has credibly testified that he did not s1.!bjectively believe that he had the right toeither decline to answer or to leave . The Court will find that under the circumstances described, therespondent's beliefwas reasonable. Agent PalTish admitted that there was no articulable basis ofany typeto reasonably sUspect the respondentofbeing illegally in theU.S. or ofbeing engaged in a crime. As theinteraction constituted a seizure of he respondent without proper cause, and as the evidence forming thebasis ofthis proceedings was obtained solely as a result of he improper seizure, the Court will find thatsuch evidence was invalidly obtained .

Howevet, such evidence may only be suppressed iftheFourth Amendmentviolation was egregious.The first te$t ofegregiousness is whether the improper seizure was suffiCiently severe. Almeida"Amaral v.Gonzales, supra. Examplesofsuch severity includewhen the initial illegal stop is particularly lengthy, orwhere there is a show or use offorce.ld. at236. As such factors were not present in the instant case, theseizure will not be found to have been severe.

The second basis for suppression is whether the stop was based upon race or some other grosslyimproper consider\ltion.ld. at 235. In Almeida-Amaral, the Court noted that in GQnzalez-Rivera v. INS,supra, the border patrol agent admitted in his testimony that race formed a basis for the stop, whereasAlmeida-Amaral offered "nothing other than his own inhlition to show that race played a pali in thealTesting officer's decision." Almeida-Amaral at 237.

In the instant case, Agent Parrish denied that the respondent's Middle Eastern appearance fOITneda basis for questioning him, adding that he does not practice racial profiling. However, the agent's denialdoes not end the inqUiry. Unlike Almeida-Amaral, in which no fact finding had taken place, this Court hashe:).rd detailed testimony from both alTcsting BCP agent (telephonically) and from the respondent, inperson. For the reasons stated above, the Court has found the respondent's testimony to be entirelycredible. The respondent testified, from his own eye-witness account, that he was one of40 people from

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his bus who entered an already crowded bus terminal, filled with African-American, Caucasian and Latinoindividuals, who were carrying on conversations in both English and Spanish. The respondent witnessedthe two BCP agents as they walked past some 40 individuals in the bus tenninal ofvarying ethnicitieswithout questioning a singleone. Instead, they made theirway directly to the respondent, the one personin the room of Middle Eastern appearance. Theresponden! was seated, and doing nothing to drawattention to himself.

The BCP agent was made aware of the issue during cross-examination, and by the Court'squestion. Other than to deny that he practiced racial profiling, the agent was unable to provide anyalternative reason for singlingout the respondent. The agent admitted that he hadno basis whatsoever tosuspect the respondent ofbeing an illegal alien or of having committed a crime.

Considering the totality of he circumstances, this Court can reach no conclusion other than to findthat the respondent's .Middle Eastern appearance fonned the basis for the violative seizure. The violationwill therefore be found to have been egregious under the holding in Almeida-Amaral, supra. As such, thechallenged evidence will be suppressed,

The Court further finds that a separate basis for suppression exists based upon theDepartment' sviolation of ts own regUlation (8 C,F.R. 2S7.8(b)(2. TIle test set out by the Board under this standardis (I) whether the regulation in question serves a purpose ofbenetlno the alien; and (2) whether theviolation prejudiced the interests of he alien which were protected by the regulation. MatterofGarcta-Flores, 17 I&N Dec. 325 (BIA 1980). The regulation in question clearly serves a purpose ofbenefit to therespondent, i.e. to protect him from detention in the absence ofreason able suspicion. Furthertl!ore, theviolation prejudiced the respondent's interests which were protected by the regulation. The improperdetention coerced the respondent into providing inforn1ation in answer to the agents' questioning which ledto the respondent's arrest and his placement in these removal proceedings.

garcia-Flores creates a basis for suppression separate from the Constitutional arguments discussedabove. As such, the Board in Garcia-Flores did not create a requirement thatthe violation be egregious;itsimple showing ofprejudice to the alien will suffice. As such showing has been made in the instantcase,suppression is wananted under Garcia-Flores.

In the absence of he suppressed evidence, the Department has proffered no independent evidencesufficient to sustain the charge ofremovabiIity. As such burden has not been met, the proceedings will beterminated. Accordingly, the following order will be entered:It is HEREBY ORDERED that these proceedings be, and hereby are, TERMINATED.

i ; A ~ ~ 0 J Dated: Ocfd1wv 3; JOt) 1. HELEN SICHEL

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order of suppression - ij sichel (ny imm. ct., oct. 3, 2007)

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