11-2867-ag Jose Pretzantzin, et al. v. Holder

1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2012 8 9 (Argued: Thursday, March 14, 2013 Decided: July 31, 2013 10 Amended: September 16, 2013) 11 12 Docket No. 11-2867-ag 13 14 15 JOSE MATIAS PRETZANTZIN, AKA JOSE M. PRETZANTZIN-YAX, 16 PACHECO PRETZANTZIN, AKA SANTOS RAMIRO PRETZANTZIN, PEDRO 17 ESTANISLADO PRETZANTZIN, PEDRO LEONARDO PACHECO LOPEZ, JUAN 18 MIGUEL PRETZANTLIN-YAX, AKA JUAN MIGUEL PRETZANTZIN-YAX, 19 20 Petitioners, 21 22 v. 23 24 ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, 25 26 Respondent.* 27 28 29 30 Before: 31 WESLEY, DRONEY, Circuit Judges, NATHAN, District Judge.** 32

* The Clerk of Court is directed to amend the official caption to conform to the listing of the parties stated above. ** The Honorable Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation. 1 Petitioners appeal from the December 17, 2010 decision 2 of the Board of Immigration Appeals (the “BIA”) reversing 3 the Immigration Judge’s prior grant of Petitioners’ motion 4 to suppress evidence obtained in egregious violation of 5 Petitioners’ Fourth Amendment rights and terminate their 6 removal proceedings. The BIA determined that evidence of 7 Petitioners’ identities was not suppressible under the 8 Supreme Court’s decision in INS v. Lopez-Mendoza,

1032 (1984), and that, in any event, the Government had 10 acquired independent evidence of alienage by obtaining 11 Petitioners’ birth certificates. Because we find that 12 Lopez-Mendoza confirmed an existing jurisdictional rule, 13 rather than announcing a new evidentiary rule, the BIA erred 14 in concluding that the Government had met its burden of 15 establishing that certain alienage-related evidence had been 16 obtained independent of any constitutional violation. The 17 Government having had the opportunity to show that the 18 alienage-related evidence was obtained from an independent 19 source, and having explicitly chosen not to do so, we VACATE 20 and REMAND the BIA’s decision with instructions to reach 21 only the issue of whether Government agents seized evidence 22 of alienage from Petitioners in the course of committing an 23 egregious Fourth Amendment violation.

24 VACATED AND REMANDED. 25 26 27 28 ANNE PILSBURY (Heather Y. Axford, on the brief), 29 Central American Legal Assistance, Brooklyn, 30 NY, for Petitioners. 31 32 MATTHEW GEORGE, Trial Attorney, Office of 33 Immigration Litigation, Civil Division (Stuart 34 F. Delery, Acting Assistant Attorney General, 35 Civil Division, Douglas E. Ginsburg, Assistant 36 Director, Office of Immigration Litigation, on 37 the brief), United States Department of 38 Justice, Washington, DC, for Respondent. 39 40 Elaine J. Goldenberg, Matthew E. Price, Jenner & 41 Block LLP, Washington, DC; Omar C. Jadwat, 42 American Civil Liberties Union Foundation, 43 Immigrants’ Rights Project, New York, NY, for

2 1 Amicus Curiae American Civil Liberties Union 2 Foundation. 3

4 WESLEY, Circuit Judge:

5 In the early morning hours of March 5, 2007, Petitioner

6 Pedro Estanislado Pretzantzin (“Estanislado Pretzantzin”)

7 awoke to a loud banging; he opened his third-floor bedroom

8 window to see a group of armed, uniformed officers at his

9 apartment building’s front door in Jamaica, New York.1 The

10 officers were from the Department of Homeland Security

11 (“DHS”) and worked for Immigrations and Customs Enforcement

12 (“ICE”). Estanislado Pretzantzin shared the apartment with

13 members of his extended family, including Petitioners Jose

14 Matias Pretzantzin, Pacheco Pretzantzin, Pedro Pacheco-Lopez

15 (“Pacheco-Lopez”), and Juan Miguel Pretzantlin-Yax.2

16 Through the open window, the officers informed Estanislado

17 Pretzantzin that they were “the police” and ordered him

18

1 The factual record in this case is somewhat sparse because the Government declined to make an evidentiary proffer concerning the circumstances of Petitioners’ arrests. The following facts are taken from Petitioners’ testimony and supporting affidavits, which the agency found credible. 2 Santiago Pretzantzin-Yax has since voluntarily left the United States; he is not a petitioner for purposes of this appeal.

3 1 downstairs to open the door. Estanislado Pretzantzin

2 complied.

3 After confirming that he lived on the third floor, one

4 of the officers led Estanislado Pretzantzin back upstairs

5 and ordered him to allow the other officers inside. At no

6 point during the encounter did the officers explain their

7 presence, present a warrant, or request consent to enter the

8 apartment. Once inside, ICE officers rounded up the

9 remaining Petitioners, who were asleep in their beds,

10 assembled them in the living room, and demanded to see their

11 “papers.” It appears that only Pacheco-Lopez – the sole

12 Petitioner who had a passport – was able to comply with the

13 officers’ directive. The officers did not ask Estanislado

14 Pretzantzin whether he had legal status in the United States

15 before arresting him.

16 All Petitioners were handcuffed and transported to ICE

17 facilities at 26 Federal Plaza, in New York City, where they

18 were notified for the first time that they were in the

19 custody of immigration officials. ICE officers interviewed

20 Petitioners and told them to sign statements that were not

21 read to them in English (which Petitioners speak minimally

22 if at all); these statements were subsequently memorialized

4 1 on Form I-213s (Record of Deportable/Inadmissible Alien).

2 Petitioners were released from custody later that afternoon

3 and served with Notices to Appear, charging them with

4 removability under Immigration and Nationality Act (“INA”) §

5 212(a)(6)(A)(i),

(a)(6)(A)(i), as natives and

6 citizens of Guatemala who had entered the United States

7 without inspection.

8 Following consolidation of their proceedings,

9 Petitioners appeared before Immigration Judge George T. Chew

10 (the “IJ”) and conceded that they were the individuals named

11 in the Notices to Appear, but denied the charges of

12 removability and moved to suppress the evidence against them

13 and terminate their proceedings. Petitioners argued that

14 they were entitled to the suppression of all statements and

15 evidence obtained as a consequence of the nighttime,

16 warrantless raid of their home under the Fourth and Fifth

17 Amendments. In opposition, the Government argued, inter

18 alia, that it possessed independent evidence of Petitioners’

19 alienage. Specifically, the Government claimed that it had

20 obtained Petitioners’ Guatemalan birth certificates from the

21 United States Embassy in Guatemala using Petitioners’ names,

22 and that it also had Petitioner Pacheco-Lopez’s criminal

5 1 history report, arrest record, and fingerprint card from a

2 1994 theft of services conviction for subway-turnstile

3 jumping. The arrest report listed Guatemala as Pacheco-

4 Lopez’s birthplace.

5 The Government ostensibly relied on the admission in

6 Petitioners’ motion to suppress (indicating that Petitioners

7 were related) and Pacheco-Lopez’s arrest records (confirming

8 that he was born in Guatemala) to target the United States

9 Embassy in Guatemala for the birth certificate request. In

10 connection with Petitioners’ birth certificates, the

11 Government proffered a Federal Express delivery record label

12 for a package sent from ICE’s facilities at 26 Federal Plaza

13 to the United States Embassy in Guatemala, but it did not

14 submit a copy of the actual birth certificate request or any

15 other evidence bearing on the package’s contents. Following

16 Petitioners’ testimony at a subsequent suppression hearing,3

17 the IJ invited the Government to proffer a warrant,

18 statements from the officers, or any other evidence to

19 justify their intrusion into Petitioners’ home. The

20 Government, however, declined to do so and explicitly

3 Pacheco-Lopez and Estanislado Pretzantzin were the only Petitioners to testify at the merits hearing. The IJ found their testimony credible and declined to take additional testimony from the remaining Petitioners, concluding that it would be repetitive.

6 1 disavowed any reliance on Petitioners’ Form I-213s, choosing

2 to rely instead on Petitioners’ birth certificates and

3 Pacheco-Lopez’s arrest records as the sole evidence of

4 alienage.

5 In June 2008, the IJ granted Petitioners’ motion to

6 suppress the Government’s evidence of alienage and terminate

7 the proceedings, finding that the nighttime, warrantless

8 entry into their home and resulting arrests constituted an

9 egregious violation of Petitioners’ Fourth and Fifth

10 Amendment rights. Having found Petitioners’ testimony and

11 supporting affidavits sufficient to establish a prima facie

12 case for suppression, the IJ reasoned that the Government’s

13 failure to offer any justification for the conduct of its

14 agents resolved the issue in Petitioners’ favor. The IJ

15 also rejected the Government’s contention that Petitioners’

16 birth certificates and Pacheco-Lopez’s arrest records

17 constituted independent evidence of alienage, finding that

18 this evidence could only have been obtained through the use

19 of evidence illegally procured as a result of the raid of

20 Petitioners’ home, namely, Pacheco-Lopez’s passport and

21 Petitioners’ statements.

22

7 1 The Government appealed. In a December 17, 2010 order,

2 the BIA vacated the IJ’s decision. In re Jose Matias

3 Pretzantizin, et al., Nos. A097 535 298/296/297/299/300/301

4 (B.I.A. Dec. 17, 2010). Relying on INS v. Lopez-Mendoza,

5

(1984), for the proposition that identity is

6 never suppressible as the fruit of an unlawful arrest, the

7 BIA found that it need not determine whether Petitioners

8 suffered an egregious violation of their constitutional

9 rights because their birth certificates and Pacheco-Lopez’s

10 arrest records were obtained after the Government had

11 determined their identities. The BIA explained that

12 Petitioners’ birth certificates were obtained from

13 Guatemalan authorities using Petitioners’ insuppressible

14 identities; the BIA offered no similar justification for the

15 independence of Pacheco-Lopez’s arrest records. Lastly,

16 although the Government had expressly declined to rely on

17 Petitioners’ Form I-213s before the IJ, the BIA found this

18 evidence admissible because Petitioners had not argued that

19 their statements were “untrue or unreliable.” In re

20 Pretzantizin, A097 535 298, at 2.

21 Petitioners were subsequently ordered removed to

22 Guatemala and have timely petitioned for review.

8 1 Discussion4

2 “The general rule in a criminal proceeding is that

3 statements and other evidence obtained as a result of an

4 unlawful, warrantless arrest are suppressible if the link

5 between the evidence and the unlawful conduct is not too

6 attenuated.” Lopez-Mendoza,

-41 (citing

7 Wong Sun v. United States,

(1963)). “[T]he

8 exclusionary sanction applies to any ‘fruits’ of a

9 constitutional violation – whether such evidence be

10 tangible, physical material actually seized in an illegal

11 search, items observed or words overheard in the course of

12 the unlawful activity, or confessions or statements of the

13 accused obtained during an illegal arrest and detention.”

14 United States v. Crews,

(1980) (internal

15 citations omitted). Outside of the criminal context,

16 however, the applicability of the exclusionary rule becomes

17 less certain. Lopez-Mendoza,

.

18

4 The standards of review here are neither contested nor determinative. We review only the decision of the BIA reversing the IJ’s grant of suppression and termination, see Yan Chen v. Gonzales,

(2d Cir. 2005), and review the agency’s factual findings for substantial evidence and issues of law de novo. See

(b)(4)(B); Almeida-Amaral v. Gonzales,

(2d Cir. 2006).

9 1 In Lopez-Mendoza, the Supreme Court held that a Fourth

2 Amendment violation does not, standing alone, justify the

3 suppression of evidence in the course of a civil deportation

4 proceeding, id. at 1050; this Court has since interpreted

5 Lopez-Mendoza to allow suppression following an egregious

6 violation, see Almeida-Amaral v. Gonzalez,

, 235

7 (2d Cir. 2006). Today, as discussed in a companion case

8 argued in tandem with the case at bar, Doroteo Sicajau

9 Cotzojay v. Holder, No. 11-4916-ag, – F.3d –, – (2d Cir.

10 2013), we confirm what the BIA and other courts have already

11 recognized: A nighttime, warrantless raid of a person’s

12 home by government officials may, and frequently will,

13 constitute an egregious violation of the Fourth Amendment

14 requiring the application of the exclusionary rule in a

15 civil deportation hearing. See Matter of Guevara-Mata, No.

16 A097 535 291 (B.I.A. June 14, 2011);5 Oliva-Ramos v. Att’y

17 Gen. of U.S.,

(3d Cir. 2012).

18 In the instant case, the BIA did not reach the question

19 of whether there was an egregious violation of the Fourth

20 Amendment, but instead predicated its reversal of the IJ’s

5 Available at http://66.147.244.126/~centrbq3/wp-content/uploads/2012/04/BIA-de cision-Guevara-Mata.pdf.

10 1 grant of suppression on a finding that Petitioners’ birth

2 certificates and Pacheco-Lopez’s arrest records were

3 independently obtained through the use of only their names.

4 To reach this result, the BIA relied on Lopez-Mendoza’s

5 statement that “[t]he ‘body’ or identity of a defendant or

6 respondent in a criminal or civil proceeding is never itself

7 suppressible as a fruit of an unlawful arrest,”

1039 (“Lopez-Mendoza’s identity statement”). The task then

9 is to discern the meaning of this statement that “has

10 bedeviled and divided our sister circuits.” United States

11 v. Oscar-Torres,

(4th Cir. 2007).6 For

12 the reasons that follow, we join the Fourth, Eighth, and

13 Tenth Circuits in finding that Lopez-Mendoza reaffirmed a

14 long-standing rule of personal jurisdiction; it did not

15 create an evidentiary rule insulating specific pieces of

16 identity-related evidence from suppression.

17

6 See Oscar-Torres,

(comparing United States v. Olivares-Rangel,

(10th Cir. 2006) (interpreting Lopez-Mendoza as merely reiterating long-standing jurisdictional rule), and United States v. Guevara-Martinez,

(8th Cir. 2001) (same), with United States v. Bowley,

(3d Cir. 2006) (interpreting Lopez- Mendoza as barring suppression of evidence of identity), United States v. Navarro-Diaz,

(6th Cir. 2005) (same), and United States v. Roque-Villanueva,

(5th Cir. 1999) (same)).

11 1 INS v. Lopez-Mendoza

2 The jurisdictional nature of Lopez-Mendoza’s identity

3 statement is evidenced by both the context in which it was

4 made and the authority upon which it relied. In Lopez-

5 Mendoza, the Supreme Court reviewed challenges in two civil

6 deportation proceedings, each of which were commenced

7 following unlawful arrests.

. In the first

8 proceeding, respondent Adan Lopez-Mendoza did not seek

9 suppression of any specific piece of evidence and, instead,

10 “objected only to the fact that he had been summoned to a

11 deportation hearing following an unlawful arrest.”

at

12 1040. The Supreme Court easily dispensed with Lopez-

13 Mendoza’s challenge to the validity of the proceedings

14 against him because “[t]he mere fact of an illegal arrest

15 has no bearing on a subsequent deportation proceeding.” Id.

16 (alteration in original and internal quotation marks

17 omitted). It was in this context that the Supreme Court

18 stated that “[t]he ‘body’ or identity of a defendant or

19 respondent in a criminal or civil proceeding is never itself

20 suppressible as a fruit of an unlawful arrest, even if it is

21 conceded that an unlawful arrest, search, or interrogation

22 occurred.” Id. at 1039 (citations omitted).

12 1 In the second proceeding, respondent Elias Sandoval-

2 Sanchez moved to suppress his Form I-213 (Record of

3 Deportable/Inadmissible Alien), which memorialized

4 incriminating post-arrest statements relating to his

5 immigration status and place of birth. Id. at 1037-38,

6 1040; Lopez-Mendoza v. INS,

(9th Cir.

7 1983), rev’d,

(1984). The Court observed that

8 Sandoval-Sanchez had “a more substantial claim” because

9 “[h]e objected not to his compelled presence at a

10 deportation proceeding, but to evidence offered at that

11 proceeding.”

. Accordingly, the Court

12 considered whether the exclusionary rule should apply to

13 prohibit the Government from using illegally obtained

14 evidence of Sandoval-Sanchez’s alienage against him in

15 deportation proceedings.

. The Court

16 ultimately found the exclusionary rule inapplicable in

17 Sandoval-Sanchez’s case after weighing the likely social

18 benefits and costs pursuant to the framework established in

19 United States v. Janis,

(1976). Lopez-Mendoza,

20

.

21 The Court’s differing treatment of Lopez-Mendoza’s

22 personal jurisdiction challenge and Sandoval-Sanchez’s

23 evidentiary challenge, and the corresponding omission of any

13 1 identity-related considerations from the evaluation of the

2 latter claim, show that Lopez-Mendoza’s identity statement

3 merely confirmed the jurisdictional rule that an unlawful

4 arrest has no bearing on the validity of a subsequent

5 proceeding; the Court did not announce a new rule insulating

6 all identity-related evidence from suppression. See Oscar-

7 Torres,

; United States v.

8 Olivares-Rangel,

(10th Cir. 2006);

9 United States v. Guevara-Martinez,

(8th

10 Cir. 2001). After all, if Lopez-Mendoza’s identity

11 statement – applicable to both criminal and civil

12 proceedings, 486 U.S. at 1039-40 – was intended as a rule of

13 evidence, it would have been impracticable for the Court to

14 employ a cost-benefit analysis in deciding whether to apply

15 the exclusionary rule to Sandoval-Sanchez’s civil

16 deportation proceedings without first determining whether

17 the statements he sought to suppress were identity-related

18 evidence.

19 The jurisdictional nature of Lopez-Mendoza’s identity

20 statement is further evidenced by the authorities it

21 employed, which relate to the long-standing Ker-Frisbie

22 doctrine – providing that an illegal arrest does not divest

23 the trial court of jurisdiction over the defendant or

14 1 otherwise preclude trial. See id. at 1039-40 (citing, inter

2 alia, Frisbie v. Collins,

(1952) and

3 Gerstein v. Pugh,

(1975)); see also

4 Olivares-Rangel,

(recognizing Lopez-

5 Mendoza’s identity statement as an application of the Ker-

6 Frisbie doctrine); accord Oscar-Torres,

.

7 In Ker v. Illinois, the Supreme Court first considered the

8 effect of an unlawful taking of custody on the validity of a

9 subsequent proceeding; the Court concluded that due process

10 was not violated when a defendant was kidnaped in Peru and

11 forcibly returned to Illinois to stand trial.

,

12 438-40 (1886). Due process did not restrict the methods

13 employed to bring the defendant before the court; it

14 governed what happened once he was there. The Court

15 reasoned that due process “is complied with when the party

16 is regularly indicted by the proper grand jury in the state

17 court, has a trial according to the forms and modes

18 prescribed for such trials, and when, in that trial and

19 proceedings, he is deprived of no rights to which he is

20 lawfully entitled.”

.

21 More than sixty years later, in Frisbie, the Supreme

22 Court refused to depart from Ker when faced with a due

23 process challenge by a defendant who was abducted in

15 1 Illinois and taken to Michigan for trial, noting that

2 “[t]here is nothing in the Constitution that requires a

3 court to permit a guilty person rightfully convicted to

4 escape justice because he was brought to trial against his

5 will.”

; see also Gerstein,

6 (declining to “retreat from the established rule that

7 illegal arrest or detention does not void a subsequent

8 conviction”). Lopez-Mendoza’s reliance on the Ker-Frisbie

9 line of authority in support of its identity statement

10 leaves no doubt that the Court was referencing the long-

11 standing jurisdictional rule that an unlawful arrest has no

12 bearing on the validity of a subsequent proceeding rather

13 than announcing a new rule insulating all identity-related

14 evidence from suppression.

15 Contemporary case law confirms our view. A

16 jurisdictional reading of Lopez-Mendoza’s identity statement

17 is compelled by the Supreme Court’s recent decision in

18 Maryland v. King,

(2013).7 In King, the

7 The Government raised King in a Rule 28(j) Letter for the purpose of demonstrating that Petitioners’ birth certificates and Pacheco-Lopez’s arrest records were independently obtained through their insuppressible identities. However, we think that King’s treatment of identity-related evidence resolves any doubt that Lopez-Mendoza’s mandate is jurisdictional rather than evidentiary.

16 1 Supreme Court examined the inventory or booking search

2 exception to the Fourth Amendment’s warrant requirement and

3 found that a criminal defendant was not subjected to an

4 unreasonable search and seizure when a sample of his DNA was

5 taken, pursuant to the Maryland DNA Collection Act,

6 following a lawful arrest for a serious offense that was

7 supported by probable cause.

. In reaching this

8 result, the Court identified the legitimate government

9 interest served by Maryland’s DNA Collection Act as “the

10 need for law enforcement officers in a safe and accurate way

11 to process and identify the persons and possessions they

12 must take into custody,”

, and concluded that

13 “[w]hen probable cause exists to remove an individual from

14 the normal channels of society and hold him in legal

15 custody, DNA identification plays a critical role in serving

16 those interests,”

. Importantly, we note that

17 the inventory or booking search exception to the Fourth

18 Amendment’s warrant requirement is not implicated on the

19 facts of the case at bar because, unlike in King,

20 Petitioners were not subjected to lawful arrests based on

21 probable cause. Indeed, here the IJ explicitly found that

22

17 1 Petitioners’ arrests constituted unlawful seizures under the

2 Fourth Amendment.8

3 Still, we find King’s description of identity-related

4 evidence telling. In finding that “name alone cannot

5 address [the government’s] interest in identity,” the Court

6 noted that other relevant forms of identification include

7 fingerprints, “name, alias, date and time of previous

8 convictions and the name then used, photograph, Social

8 The Government’s Brief includes a parenthetical citation to United States v. Adegbite,

(2d Cir. 1988), a case the Government referenced during oral argument, for the proposition that “the identity [specifically, the name] of defendants is not suppressible under the exclusionary rule.” Resp. Br. at 15 (quoting Adegbite,

). In Adegbite, this Court determined that “the solicitation of information concerning a person’s identity and background does not amount to custodial interrogation prohibited by Miranda,”

– a statement largely irrelevant to this appeal. Initially, given the Government’s inadequate briefing regarding any potential application of the pedigree exception discussed in Adegbite, we consider the argument to be waived. See Tolbert v. Queens Coll.,

, 75-76 (2d Cir. 2001). Regardless, we would deem the pedigree exception to be inapplicable; it is focused on protecting “basic information needed to facilitate the booking and arraigning of a suspect” from suppression as a result of a Miranda violation following a valid arrest. United States v. Carmona,

(2d Cir. 1989) (citing United States v. Gotchis,

(2d Cir. 1986) and United States ex rel. Hines v. LaVallee,

(2d Cir. 1975)). The concerns inherent within the pedigree exception to Miranda violations – supplying incriminating but identifying information without being warned of the consequences – do not line up well with the circumstances of Petitioners’ constitutional claim that they were seized in their home without consent and without probable cause. There is no reason to consider engrafting an exception to the protections of the Fifth Amendment onto Petitioners’ Fourth Amendment claims.

18 1 Security number, or [DNA] profile.” Id. at 1972. This

2 broad concept of “identity,” when read in conjunction with

3 the Government’s proffered interpretation of Lopez-Mendoza’s

4 identity statement as precluding the suppression of all

5 identity-related evidence, would render the inventory or

6 booking search exception to the Fourth Amendment’s warrant

7 requirement superfluous. After all, if DNA is identity-

8 related evidence, and Lopez-Mendoza precludes the

9 suppression of all identity-related evidence, then why

10 bother to couch Maryland’s DNA Collection Act within the

11 booking exception at all? And if identity-related evidence

12 includes fingerprints, and Lopez-Mendoza precludes the

13 suppression of all identity-related evidence, then what are

14 we to make of controlling precedent mandating the

15 suppression of this insuppressible evidence? See, e.g.,

16 Hayes v. Florida,

(1985) (holding

17 fingerprints properly suppressed when defendant was arrested

18 without probable cause, taken to police station without

19 consent, and detained and fingerprinted for investigatory

20 purposes); Taylor v. Alabama,

(1982)

21 (concluding that “[t]he initial fingerprints [] were

22 themselves the fruit of petitioner’s illegal arrest . . . .”

19 1 (citation omitted)); accord Davis v. Mississippi,

(1969). Given such peculiar consequences, it is

3 clear that we cannot read Lopez-Mendoza’s identity statement

4 as establishing a rule of evidence.

5 Jurisdictional Identity Evidence is Not Suppressible

6 Although Lopez-Mendoza’s identity statement merely

7 confirmed a long-standing rule of personal jurisdiction,

8 that does not resolve the matter. Lopez-Mendoza’s

9 jurisdictional rule has unavoidable, practical evidentiary

10 consequences.9 Because an individual cannot escape a

11 tribunal’s power over his “body” despite being subject to an

12 illegal seizure en route to the courthouse, he cannot

13 contest that he is, in fact, the individual named in the

14 charging documents initiating proceedings. See United

15 States v. Garcia-Beltran,

(9th Cir. 2004).

16 Thus, a person’s “identity,” insofar as necessary to

17 identify the individual subject to judicial proceedings, is

18 not suppressible on a purely practical level.

9 The Government argues that one of these consequences is allowing Petitioners to “immunize themselves from the consequences of their continuing violation of law.” Resp. Br. at 11. The Supreme Court’s recent confirmation that “[a]s a general rule, it is not a crime for a removable alien to remain present in the United States,” alleviates any concerns we harbor with respect to this claim. Arizona v. United States,

(2012) (citing Lopez-Mendoza,

).

20 1 The obvious element of identity that falls within this

2 category is one’s name. In this case, Petitioners freely

3 concede that they are the individuals charged in the Notices

4 to Appear and they do not argue that their names should be

5 suppressed following an egregious Fourth Amendment

6 violation.10 A more difficult question is what other

7 identity evidence, if any, is necessary to identify the

8 individual for jurisdictional purposes, and is thus not

9 suppressible on a purely practical level. However, the

10 Court need not reach that question because the Government

11 repeatedly contends that the names alone were sufficient to

12 obtain the additional evidence at issue. Resp. Br. at 7-8,

13 22, 25. There is no need to decide where identity ends and

14 alienage begins. Therefore, we will hold the Government to

15 its position.

10 The Government argues that even if this Court requires suppression of Petitioners’ identity information, Petitioners will be required to admit or deny the allegations and charges in any future Notices to Appear pursuant to

(c), and that if they deny the charges, the Government may question them under oath and the agency may draw adverse inferences if Petitioners remain silent. Resp. Br. at 10-11 & 10 n.1. The Government is correct that Section 1240.10(c) provides that an “immigration judge shall require the respondent to plead to the notice to appear,”

(c), and that “under certain circumstances, an adverse inference may indeed be drawn from a respondent’s silence in deportation proceedings,” Matter of Guevara,

(B.I.A. 1990). However, as Petitioners point out, the BIA has also held that “silence alone does not provide sufficient evidence, in the absence of any other evidence of record at all, to establish a prima facie case of alienage.”

.

21 1 Independent Evidence

2 The BIA determined that Petitioners’ birth certificates

3 constituted independent evidence of alienage because they

4 were obtained solely through the use of Petitioners’

5 insuppressible identities. In assessing whether evidence

6 was independently obtained, we must determine “whether,

7 granting establishment of the primary illegality, the

8 evidence to which instant objection is made has been come at

9 by exploitation of that illegality or instead by means

10 sufficiently distinguishable to be purged of the primary

11 taint.” Wong Sun,

(internal quotation marks

12 omitted). And where, as here, Petitioners have established

13 a prima facie case for suppression, the Government must

14 “assume the burden of justifying the manner in which it

15 obtained the evidence.” Matter of Barcenas,

609, 611 (B.I.A. 1988) (internal quotation marks omitted).

17 The Government maintained before the agency and at oral

18 argument that ICE procured Petitioners’ birth certificates

19 using only their names. But the arguments of counsel are

20 not evidence, Matter of Ramirez-Sanchez,

503, 506 (B.I.A. 1980), and the Government failed to make

22 any evidentiary proffer demonstrating the basis for

22 1 Petitioners’ birth certificate request. Moreover, we note

2 that the Government’s claim that the request was based on

3 names alone was dubiously supported by only a Federal

4 Express package label, but not by the actual letter ICE sent

5 to the United States Embassy in Guatemala. In addition, the

6 Government’s post-argument Rule 28(j) Letter stating that

7 “it was proper for the government to use aspects of

8 [Petitioners’] identity other than simply their names – such

9 as birth date and even place of birth – to obtain their

10 Guatemalan birth certificates,” would appear to further

11 undermine the Government’s contention. Given that the

12 record before the IJ contained no evidence documenting the

13 basis for Petitioners’ birth certificate request, we find

14 that the BIA erred by concluding that the Government had met

15 its burden of establishing that Petitioners’ birth

16 certificates constituted independent evidence of alienage.

17 See Wong Sun,

; Barcenas, 19 I. & N. Dec. at

18 611.

19 The Government argues that it already possessed

20 independent evidence of Pacheco-Lopez’s alienage prior to

21 any constitutional violation, in the form of his arrest

22 records that were merely linked to him using his name, but

23 the record is equally silent concerning the procurement of

23 1 those records. The Government relies on Reyes-Basurto v.

2 Holder, a non-precedential summary order in which we

3 previously affirmed the denial of a motion to suppress

4 evidence on this linkage rationale. See

,

5 789 (2d Cir. 2012). In Reyes-Basurto, the petitioner sought

6 to suppress his Border Patrol records and a Form I-140

7 (Petition For Alien Worker) that were necessarily already in

8 the possession of immigration officials. See

.

9 In affirming the denial of suppression, we reasoned that

10 Reyes-Basurto’s pre-existing immigration records made him “a

11 ‘suspect’ in regards to removability even before his

12 [illegal] arrest.”

(analogizing to Crews, 445

13 U.S. at 476, in which the Court declined to suppress an in-

14 court witness identification because “the robbery

15 investigation had already focused on [Crews], and the police

16 had independent reasonable grounds to suspect his

17 culpability” prior to any Fourth Amendment violation).

18 This rationale does not apply with equal force to

19 Pacheco-Lopez, whose alienage-related evidence was in the

20 possession of a municipal transit police department rather

21 than immigration officials. See Davis,

; see

22 also Crews,

(“Had it not been for Davis’

23 illegal detention, however, his prints would not have been

24 1 obtained and he would never have become a suspect.”). In

2 any event, given that the Government failed to proffer any

3 evidence demonstrating how Pacheco-Lopez’s records were

4 obtained, we are unable to find that this evidence was

5 linked to him through the use of his name alone, and,

6 therefore, we find that the BIA erred in concluding that the

7 Government had met its burden of establishing that this

8 evidence was independent of any constitutional violation.

9

10 Conclusion

11 For the foregoing reasons, the decision of the Board of

12 Immigration Appeals is hereby VACATED and REMANDED. Because

13 the BIA declined to answer the question of whether

14 Petitioners sustained an egregious Fourth Amendment

15 violation, we do not reach this issue. However, we note

16 that fact-finding with respect to the circumstances under

17 which ICE officers entered Petitioners’ home and seized

18 Petitioners has been completed. The Government had an

19 opportunity to respond to Petitioners’ prima facie case for

20 suppression and explicitly chose not to. Likewise, the

21 Government had an opportunity to submit proof showing

22 exactly how it obtained Pacheco-Lopez’s arrest records and

25 1 Petitioners’ birth certificates. The Government failed to

2 do so; the evidence proffered is inadequate to support the

3 Government’s claim that it relied on Petitioners’ names

4 alone in securing their birth certificates from the United

5 States Embassy in Guatemala.

6 Accordingly, we remand this case for the BIA to reach

7 the issue of whether Government agents seized evidence of

8 alienage from Petitioners in the course of committing an

9 egregious Fourth Amendment violation. Should any questions

10 over the nature of the constitutional violation linger, we

11 direct the agency to the opinion issued in a companion case

12 also decided today, in which we were persuaded that the

13 facts as alleged by the alien and similar to those in this

14 case portrayed an egregious Fourth Amendment violation. See

15 Doroteo Sicajau Cotzojay v. Holder, No. 11-4916-ag, - F.3d

16 -, - (2d Cir. 2013).

26