20-3079 Medley v. Garland BIA Farber, IJ A 206 030 427

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2022

(Argued: October 13, 2022 Decided: June 15, 2023)

Docket No. 20-3079

LEON LEONARD MEDLEY,

Petitioner,

v.

MERRICK B. GARLAND, UNITED STATES ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS

Before: LEVAL, CHIN, and BIANCO, Circuit Judges. Petition for review of a decision of the Board of Immigration

Appeals affirming the decision of an Immigration Judge denying petitioner's

motions to terminate removal proceedings. Petitioner argues that regulatory and

constitutional violations that occurred during his allegedly illegal arrest and

interrogation required termination of the proceedings.

PETITION DENIED.

RYAN BREWER (Zoe Levine, on the brief), The Bronx Defenders, Bronx, New York, for Petitioner.

TIM RAMNITZ, Senior Litigation Counsel (Shelley R. Goad, Assistant Director, on the brief), for Brian Boynton, Assistant Attorney General Civil Division, U.S. Department of Justice, Washington, District of Columbia, for Respondent.

CHIN, Circuit Judge:

Petitioner Leon Leonard Medley seeks review of a June 25, 2019,

decision of the Board of Immigration Appeals (the "BIA") affirming the decision

of an Immigration Judge (the "IJ") denying his motions to terminate his removal

proceedings. Medley is a 32-year-old native and citizen of Jamaica who entered

the United States in 2006 and overstayed his visitor visa. On December 20, 2017,

2 Immigration and Customs Enforcement ("ICE") officers arrested Medley

pursuant to a warrant issued by the Department of Homeland Security ("DHS").

In removal proceedings before the IJ, Medley argued that the immigration court

lacked jurisdiction over his removal proceedings and the officers violated agency

regulations and his fundamental rights during his arrest and interrogation. The

IJ rejected the jurisdictional argument and held that termination of the removal

proceedings was not warranted because evidence of Medley's removability

existed independent of any evidence obtained as a result of his arrest. The BIA

affirmed. We agree that the agency had jurisdiction and that termination of the

removal proceeding was not warranted. Accordingly, we deny the petition for

review.

BACKGROUND

I. The Facts

The following facts are drawn from Medley's affidavit in support of

his multiple motions to terminate and the Form I-213 submitted by DHS

detailing the circumstances of his arrest. See S. App'x at 37-43; A.R. at 1865-68.

As noted below, some facts are sharply disputed.

3 Medley last entered the United States on June 7, 2006, on a non-

immigrant visa and was authorized to stay until December 6, 2006. He remained

in the country beyond that date, settling in the New York area. He is married to

a U.S. citizen and has three U.S. citizen children.

From 2009 to 2017, Medley was arrested thirty-two times and

charged with, inter alia, assault, attempted assault, resisting arrest, strangulation,

endangering the welfare of a child, burglary, criminal mischief, domestic

violence, menacing, criminal possession of a weapon, harassment, and unlawful

possession of marijuana. These arrests resulted in seven convictions for

disorderly conduct, one conviction for second degree harassment, and one

conviction for unlawful possession of marijuana. With regard to the conviction

for second degree harassment, an order of protection was taken out against him

for the benefit of his mother. The criminal charges and convictions for marijuana

possession and disorderly conduct alerted DHS to his presence. On September

19, 2017, DHS issued a Notice to Appear (the "NTA") and a warrant for Medley's

arrest as a noncitizen subject to removal. 1

1 This opinion uses the term "noncitizen" as equivalent to the statutory term "alien." See Nasrallah v. Barr,

, 1689 n.2 (2020); Santos-Zacaria v. Garland, No. 21-1436,

, n.1 (U.S. May 11, 2023). 4 On the morning of December 20, 2017, three ICE officers arrested

Medley inside a 7-Eleven convenience store in New York City. The officers

approached Medley and, after he provided them with his name, proceeded to

arrest him. Medley was accompanied by his wife and three-week-old daughter.

He had left the hospital earlier that day, following a three-night stay to treat an

infected wart, which was surgically removed from his hand, and he had

intended to return to the hospital that same day, after running necessary errands.

The parties differ as to how the arrest transpired. Medley alleges

that he asked the officers to be careful while arresting him because he had just

had surgery and his hand was still bandaged. He contends that the officers

ignored his entreaties and pushed him against a display rack, causing Medley's

hand to begin bleeding through the bandage as they handcuffed him. The

officers also seized and discarded Medley's pain medication and ignored his

multiple requests that he be taken back to the hospital to treat his hand. When

the officers searched Medley's pockets, they found a "Know Your Rights" card

that Medley's immigration lawyer had given him, as well as the lawyer's

business card. The officers threw the "Know Your Rights" card on the ground

and kept the business card.

5 DHS contends, however, that Medley was arrested without incident.

According to the Form I-213, Medley informed the officers of his recent hospital

stay but otherwise told them that he was in good health.

According to Medley, it was only after he was handcuffed and

placed into a vehicle that the officers identified themselves as immigration

officials. The officers proceeded to drive Medley to the ICE facility at 26 Federal

Plaza in downtown Manhattan. At one point, Medley alleges, the officers pulled

over and took a group selfie outside with the vehicle in the background.

Upon arriving at the facility, Medley was placed in a holding cell

and then brought to a room where several officers -- including some of those

involved in the arrest -- began questioning him. Medley told the officers that he

would provide his name and other biographical details but that he would not

answer any other questions without his lawyer present. He asked that the

officers contact his lawyer using the business card they had taken, but they

declined to do so.

The officers continued to question Medley and attempted to get him

to sign documents, which Medley refused to do. Medley contends that he

requested and was refused food and water throughout the interrogation.

6 According to DHS's account, however, Medley was provided with a meal

approximately one hour after arriving at the facility.

After his lawyer sent a message to the facility invoking Medley's

rights, the officers stopped questioning him. Medley was then moved to another

facility where he received medical care for his hand.

II. Procedural History

During the interrogation at the ICE facility, the officers served

Medley with the NTA and DHS arrest warrant. The NTA charged Medley with

removability as a result of his overstaying his visa, pursuant to § 237(a)(1)(B) of

the Immigration and Nationality Act (the "INA").

(a)(1)(B). The

NTA did not include the date, time, and location of the hearings related to his

removal proceedings. Medley was subsequently sent notices that provided these

missing details and attended all of his hearings with counsel. On December 29,

2017, DHS initiated removal proceedings against Medley pursuant to the NTA.

On February 15, 2018, Medley filed a motion to terminate the

removal proceedings based on his purportedly illegal arrest. S. App'x at 33. He

alleged that the ICE agents violated his Fourth and Fifth Amendment rights and

agency regulations by using excessive force, failing to identify themselves, failing

7 to obtain an arrest warrant, conducting a warrantless search, and leaving him

unattended in a vehicle. He also alleged that the agents attempted to coerce him

into making statements, violated his right to counsel, and disregarded his right

to medical attention during the post-arrest interrogation at the ICE facility. On

February 22, 2018, with the assistance of counsel, Medley filed written pleadings

in which he conceded his removability for overstaying his visa. A.R. 2060.

During a hearing on March 16, 2018, the IJ orally denied the motion to terminate.

A.R. 908-17.

Also on March 16, 2018, Medley alternatively filed an application for

cancellation of removal pursuant to § 240A(b) of the INA. 8 U.S.C. § 1229b(b)(1).

This provision authorizes the Attorney General to cancel the removal of a

noncitizen who meets certain statutory requirements, including continuous

presence in the country of no less than 10 years, a demonstration of good moral

character, no convictions under

(a)(2), 1227(a)(2), or 1227(a)(3),

and a showing that removal would cause unusual hardship for the applicant's

U.S. citizen spouse, parent, or child. 8 U.S.C. § 1229b(b)(1).

On August 17, 2018, Medley filed a second motion to terminate his

removal proceedings, pursuant to Pereira v. Sessions,

(2018). He

8 alleged that the immigration court lacked jurisdiction over the proceedings

because the initial NTA he received omitted details regarding the date, time, and

location of his hearings.

On September 13, 2018, the IJ denied both Medley's motions to

terminate in a written decision, and on June 25, 2019, the BIA affirmed. Medley

appealed to this Court on July 8, 2019. See Medley v. Barr, No. 19-2056, Dkt. 1 (2d

Cir. July 9, 2019).

On November 13, 2019, however, the BIA reopened proceedings on

Medley's application for cancellation of removal, after Medley filed a motion

based on a vacatur of his prior state convictions for marijuana possession. As a

consequence, on November 27, 2019, the parties entered into a stipulation

dismissing the petition for review in No. 19-2056 for lack of jurisdiction in light

of the reopening of the proceedings by the BIA. This Court so ordered the

stipulation. See S. App'x at 23-24; Medley v. Barr, No. 19-2056, Dkt. 40 (2d Cir.

Dec. 3, 2019). On March 4, 2020, after conducting three hearings, the IJ denied

Medley's cancellation application. The BIA affirmed on August 31, 2020.

Medley filed the instant petition for review on September 9, 2020.

Medley's petition for review included a motion to stay removal proceedings and

9 an appeal of the BIA's denials of both his motions to terminate proceedings and

his application for cancellation of removal. This Court granted the motion to

stay removal proceedings and dismissed the appeal of his application for

cancellation of removal for lack of jurisdiction. Medley v. Garland, No. 20-3079,

Dkt. 57 (2d Cir. July 13, 2021). The claim relating to the agency's denial of

Medley's motions to terminate remains before us.

DISCUSSION

We review the agency's factual findings for substantial evidence and

legal conclusions de novo. See Zaman v. Mukasey,

(2d Cir. 2008)

(per curiam); Diallo v. INS,

(2d Cir. 2000). If the BIA's decision

adopts and affirms the decision of the immigration court, we review the two

decisions together. Ojo v. Garland,

(2d Cir. 2022) (citing Ruqiang

Yu v. Holder,

(2d Cir. 2012)).

Medley advances two arguments on appeal. First, he contends that

the immigration court lacked jurisdiction over the proceedings under Pereira and

Niz-Chavez v. Garland,

(2021), because the NTA omitted logistical

details regarding his hearings. Second, he argues that the officers' actions during

his arrest and interrogation amounted to regulatory and constitutional violations

10 that required termination of his removal proceedings under Rajah v. Mukasey,

(2d Cir. 2008). We address each argument in turn.

I. Jurisdiction

Medley's argument that the agency lacked jurisdiction over his

removal proceedings because the NTA lacked the date, time, and location of his

removal hearings is foreclosed by our precedents in Chery v. Garland,

(2d Cir. 2021), and Banegas Gomez v. Barr,

(2d Cir. 2019). In those

cases, we held that the Supreme Court's decisions in Pereira and Niz-Chavez on

the consequences of incomplete NTAs did not bear on an immigration court's

jurisdiction but rather applied narrowly to the stop-time rule, a provision of the

INA that applies only to an application for cancellation of removal. See Chery, 16

F.4th at 987 ("As with Pereira, Niz-Chavez focused only on the stop-time rule in 8

U.S.C. § 1229b(d)(1) and did not address the effect of a defective NTA on an IJ's

jurisdiction."); Banegas Gomez,

("[W]e conclude that Pereira's self-

described disposition of this narrow question is not properly read to void

jurisdiction in cases in which an NTA omits a hearing time or place." (internal

quotation marks and citation omitted)). In his briefing in this Court, Medley

acknowledged that his jurisdictional argument was rejected in Chery and Banegas

11 Gomez but explained that he was relying on the pendency of a rehearing petition

in Chery to preserve the issue. That petition has now been denied. See Chery v.

Garland, No. 18-1036, Dkt. 202 (2d Cir. Mar. 30, 2022).

Accordingly, Medley's jurisdictional argument fails.

II. Pre-Hearing Violations

On the merits, Medley argues that his removal proceedings must be

terminated because the ICE officers violated agency regulations and his

fundamental rights during his arrest and subsequent interrogation. He asserts

that such violations require termination either with or without prejudice

pursuant to this Court's holding in Rajah.

. For the reasons set

forth below, we are not persuaded.

A. Applicable Law

To prove that a noncitizen is subject to removal for overstaying his

visa, the government must "only show that the alien was admitted as a

nonimmigrant for a temporary period, that the period has elapsed, and that the

nonimmigrant has not departed." Zerrei v. Gonzales,

(2d Cir.

2006) (per curiam) (internal quotation marks and ellipses omitted). The

government bears the burden of establishing that the noncitizen is subject to

12 removal by clear and convincing evidence. See id.; see also Woodby v. INS,

(1966). We uphold the BIA's removability determinations if its

findings are supported by substantial evidence. Mei Chai Ye v. U.S. Dep't of Just.,

(2d Cir. 2007); Francis v. Gonzales,

(2d Cir.

2006).

If a noncitizen concedes removability and does not allege that the

concession was illegally obtained, then the "voluntary concessions of

removability during [the] removal proceedings are admissible as independent

evidence, notwithstanding the fact that [the] proceedings resulted from unlawful

arrests." Vanegas-Ramirez v. Holder,

(2d Cir. 2014) (citing Katris

v. INS,

(2d Cir. 1977) (per curiam); Avila-Gallegos v. INS,

(2d Cir. 1975); La Franca v. INS,

(2d Cir.

1969)). Similarly, where a petitioner opposes deportation proceedings based on

an allegedly illegal arrest but does not contest any of the evidence offered against

him, "the mere fact of an illegal arrest has no bearing on a subsequent

deportation proceeding." INS v. Lopez-Mendoza,

(1984)

(alteration adopted) (internal quotation marks and citation omitted). Despite the

nature of the arrest, "the removal of an individual could still be supported by

13 otherwise admissible 'evidence not derived directly from,' but rather 'gathered

independently of, or sufficiently attenuated from,' the arrest." Vanegas-Ramirez,

(quoting Lopez-Mendoza,

).

In INS v. Lopez-Mendoza, the Supreme Court held that the

exclusionary rule, which bars the admission of certain evidence in criminal

proceedings, did not apply in civil removal proceedings to alleged Fourth

Amendment violations.

. Yet the Court in Lopez-Mendoza

left open whether the exclusionary rule might apply in cases of "egregious

violations of Fourth Amendment or other liberties that might transgress notions

of fundamental fairness and undermine the probative value of the evidence

obtained."

. The Court also considered the challenge of a petitioner

who moved to terminate his removal proceedings based on an allegedly illegal

arrest but who had "entered no objection to the evidence offered against him."

. Instead, the petitioner only contested being summoned to a

deportation proceeding following his purportedly illegal arrest.

The Court

observed that "[t]he body or identity of a defendant or respondent in a criminal

or civil proceeding is never itself suppressible as a fruit of an unlawful arrest,

even if it is conceded that an unlawful arrest, search, or interrogation occurred."

14

(internal quotation marks omitted) (citing Gerstein v. Pugh,

(1975); Frisbie v. Collins,

(1952); United States ex rel.

Bilokumsky v. Tod,

(1923)). It therefore upheld the agency's

denial of the petitioner's motions to terminate, based upon the agency's

determination that because the evidence of removability was not contested, "the

legality of the arrest was not relevant to the deportation proceeding." Id. at 1035.

In so holding, the Court stressed that the purpose of a removal proceeding "is not

to punish past transgressions but rather to put an end to a continuing violation of

the immigration laws." Id. at 1039 ("[A] deportation hearing is intended to

provide a streamlined determination of eligibility to remain in this country,

nothing more.").

Lopez-Mendoza discussed the suppression of evidence in a removal

proceeding, rather than a request to terminate removal proceedings because of

regulatory or constitutional violations. We have considered the latter issue in

other cases. In Rajah v. Mukasey, we considered motions to terminate removal

proceedings for "significant regulatory violations" that occurred during the arrest

or interrogation phases of removal proceedings.

. We identified

three "possible remedies" for such violations:

15 (i) invalidation of the deportation orders with prejudice; (ii) suppression of all evidence obtained during the registration and interrogation phases; and (iii) terminating the deportation proceedings without prejudice to the starting of new deportation proceedings.

The second remedy -- suppression of evidence -- is not at issue in this case

because Medley does not seek the suppression of any evidence obtained during

his arrest or interrogation. Nor does he contest that he is removable. Only the

first and third remedies -- termination of proceedings with or without prejudice

to new deportation proceedings -- are at issue.

While the parties disagree as to some aspects of Rajah, we need not

resolve the differences. 2 Rajah assumed, "without deciding," that pre-hearing

2 The parties differ as to whether prejudice to the outcome of the removal proceedings is required to terminate them. Rajah held that "pre-hearing regulatory violations are not grounds for termination, absent prejudice that may have affected the outcome of the proceeding, conscience-shocking conduct, or a deprivation of fundamental rights." Rajah,

. Respondent acknowledges that this list is "disjunctive," but contends that the court "later clarifies that prejudice and egregiousness are conjunctive requirements for termination." Resp. Br. at 30. Medley argues that this listing is disjunctive and that termination is required if a pre-hearing violation involves prejudice to a proceeding or egregiousness or a deprivation of a fundamental right. See Pet. Reply Br. at 6. We have previously suggested -- albeit in a summary order -- that this list is disjunctive. See Alnahham v. Holder,

(2d Cir. 2010) (summary order) (holding that termination of proceedings was not warranted because the alleged improprieties "d[id] not rise to the level of being prejudicial, conscience-shocking, or a deprivation of fundamental rights."). Medley's interpretation also finds support in the Ninth Circuit's decision in Sanchez v. Sessions,

(9th Cir. 2018). There, although evidence of the noncitizen's removability existed independent of the allegedly illegal stop, the court found that there was ample 16 violations that were "so egregious as to shock the conscience would call for

invalidation of the deportation orders with prejudice to the renewal of

deportation proceedings."

Rajah held that pre-hearing violations of a "less

culpable" or non-egregious nature could be a basis for termination without

prejudice only if the petitioner could show "prejudice that may have affected the

outcome of the proceeding." Id. at 446-47; see id. at 447 ("In the case of harmless,

nonegregious, pre-hearing violations, termination would provide no benefit

other than a windfall delay to the deportable alien." (emphasis added)).

The four petitioners in Rajah challenged their deportation

proceedings based on, inter alia, alleged violations of agency regulations that

occurred before their hearings.

. 3 Pursuant to a national security

program instituted after the September 11 attacks, the petitioners were required

evidence that the stop was based on the petitioner's race, a "grotesque" and "patently unlawful[]" basis for reasonable suspicion. Id. at 656. The court concluded that this constituted an egregious violation of the agency regulation that such searches be based on reasonable suspicion and held that the petitioner could be entitled to termination of his removal proceedings. Id. at 653, 656. Here, as discussed below, Medley has not shown either egregiousness or prejudice to the outcome of the proceedings. 3 The Rajah petitioners also alleged that the registration program lacked statutory authorization, was invalidly promulgated, and violated their equal protection rights.

. They also sought to suppress evidence of their removability that was gathered pursuant to the program, arguing that the evidence was the product of Fourth and Fifth Amendment violations.

. These arguments were all rejected.

. 17 to register, provide fingerprints, and submit to additional questioning by then-

INS officials.

. When the registration process revealed that the four

petitioners were in the country illegally, all of them were placed in removal

proceedings.

Though it was "undisputed that [the petitioners were]

deportable," they alleged that the officials had violated agency regulations while

registering, interrogating, and arresting them.

. The allegations

included the violation of the right to counsel, warrantless arrests, the failure of

the arresting officer to identify himself and state reasons for arrest, post-arrest

questioning conducted by an arresting officer, and coercion.

. The

petitioners contended that the violations so infected their proceedings that they

required, inter alia, suppression of evidence gathered during registration or

termination of their removal proceedings without prejudice.

.

Noting the lack of sufficient factual findings to enable our conclusive

review of each claim, with the exception of petitioners' claims regarding access to

counsel, which we determined were not violations as a matter of law, we

"assume[d] for purposes of argument that [petitioners'] rights under the

regulations were violated."

. We nevertheless held that the violations

were not grounds for termination with prejudice because they were not

18 egregious.

. In assessing whether the violations might be grounds for

termination without prejudice, we reasoned that, "[u]nlike a violation occurring

during a hearing, the alien's second deportation hearing would be no more fair

than, or even different from, the first."

. Termination in these

circumstances, we concluded, would also provide little deterrent effect and a

great enforcement burden on the agency. See

("[U]sing termination as a

remedy for pre-hearing violations promises a substantial drain on agency

resources with little gain in immigrants' significant rights under the

regulations.").

Rajah assumed without deciding that an egregious pre-hearing

regulatory violation could lead to termination with prejudice. To determine

whether conduct is egregious or conscience-shocking, we look to the Supreme

Court's Fourth Amendment jurisprudence as well as our own precedents. These

precedents largely arise in the suppression context, but they nevertheless can

provide an instructive framework for evaluating egregious conduct.

"[T]here is no one-size-fits-all approach" to assessing egregiousness.

Cotzojay v. Holder,

(2d Cir. 2013) (quoting Oliva-Ramos v. Att'y

Gen. of U.S.,

(3d Cir. 2012)). To shock the conscience, the

19 challenged conduct "must not only be wrong; it must be extremely so, 'truly

brutal and offensive to human dignity.'" Mara v. Rilling,

(2d

Cir. 2019) (quoting Lombardi v. Whitman,

(2d Cir. 2007)).

In Lopez-Mendoza, the Supreme Court suggested the exclusionary

rule could apply in removal proceedings in the case of pre-hearing, egregious

violations of fundamental liberties.

. To support this

proposition, the Court cited Rochin v. California,

(1952), where the

Court held that the defendant's Fourth Amendment rights had been violated by

conscience-shocking conduct by the police. Upon entering Rochin's bedroom

during a warrantless raid, police officers observed Rochin swallowing two

capsules.

; People v. Rochin,

(Cal. Ct. App. 1950). The

officers responded by "jump[ing] on him" in an "attempt[] to extract the

capsules." Rochin,

. When that did not work, the officers took

Rochin to the hospital and had a doctor forcibly pump his stomach to recover the

capsules, which were revealed to contain morphine.

The capsules and

recovered morphine were the chief evidence used against him at trial.

The

Court held that the officers' conduct shocked the conscience because it involved

"[i]llegally breaking into the privacy of the petitioner, the struggle to open his

20 mouth and remove what was there, [and] the forcible extraction of his stomach's

contents."

. Rather than holding that this conduct set the bar for

egregious, conscience-shocking conduct, however, we have held that the

Supreme Court's citation in Lopez-Mendoza to Rochin does not "indicat[e] that the

Court requires equally flagrant violations before it is willing to label them

'egregious.'" Cotzojay,

.

As for our own precedents, we have assessed the egregiousness of

alleged pre-hearing violations on several occasions. See, e.g., Cotzojay,

; Zuniga-Perez v. Sessions,

(2d Cir. 2018); Almeida-Amaral v.

Gonzales,

(2d Cir. 2006). Like Lopez-Mendoza, these cases considered

a petitioner's motion to suppress evidence gathered pursuant to a purportedly

illegal arrest. In Almeida-Amaral, we identified "two principles that . . . bear on

whether [a] petitioner suffered an egregious violation of his constitutional

rights."

. First, we consider the characteristics, severity, and

validity of the conduct. See

Second, even if the conduct is "not especially

severe, it may nevertheless qualify as an egregious violation if the stop was

based on race (or some other grossly improper consideration)."

As for the

standard itself, the "test for egregiousness is more demanding than the test for

21 overcoming qualified immunity." Maldonado v. Holder,

(2d Cir.

2014) (citing Cotzojay,

n.10). Egregious abuse "entails a shock to

the conscience [] and is rarely satisfied."

Several years after Rajah, we again considered the impact of pre-

hearing violations on termination of removal proceedings in Maldonado v. Holder,

. The petitioners in Maldonado moved to terminate their

removal proceedings because evidence of their removability was collected

during a purportedly race-based stop.

. They also alleged that they

were deprived of counsel during processing, in violation of agency regulations.

. Applying the Rajah framework, we held that the challenged

conduct was not egregious because the stop had been targeted, without

consideration of race, towards anybody participating in day labor, and because

none of the petitioners claimed they had invoked their right to counsel and then

had it denied.

. Accordingly, we denied the petitions for

review.

.

B. Application

As the IJ did below, we construe the facts in Medley's favor and

assume that all of his allegations regarding the arrest and interrogation are true.

22 See S. App'x at 35 ("[T]he court takes every allegation that the respondent makes

in his affidavit to be completely true and disregards the Form I-213."); see Rajah,

("[W]e assume for purposes of argument that [petitioners'] rights

under the regulations were violated.").

As noted above, Medley does not challenge any evidence that was

collected during his arrest and interrogation, nor does he contest that he is

removable. A.R. 2060. Therefore, the second remedy for addressing pre-hearing

violations -- namely, the suppression of evidence during the removal proceeding

-- does not apply. Rajah,

. We identify the violative conduct

alleged in this case, and assuming his allegations to be true, we then consider

whether the allegations would entitle Medley to the termination of his removal

proceedings, either with or without prejudice.

1. The Violative Conduct

Several transgressions are alleged to have transpired. Medley

contends that the ICE agents violated agency regulations during the arrest by

using unnecessary force in violation of

(a)(1)(ii)-(iii). See Pet. Br.

at 2, 17-28; Pet. Reply Br. at 16-18. At the ICE facility, the regulatory violations

continued when the ICE officers refused to call Medley's attorney. The officers

23 also deprived Medley of food, water, and medical care as a means of coercing

him to make statements or sign documents, which he refused to do. Medley

argues that this conduct violated agency regulations protecting his right to

counsel,

(b), and his right to remain free from coercion,

§ 287.8(c)(2)(vii). See Pet. Br. at 2, 30-33. 4

Medley also argues that the officers' conduct violated his

fundamental rights. See Pet. Br. at 28-29. He contends that the agency

regulations protecting the right to remain free from coercion and the right to

counsel were promulgated to protect petitioners' Fifth Amendment due process

rights. Id. at 29.

We turn to whether the alleged violations warrant termination, with

or without prejudice.

4 Medley alleged additional regulatory violations before the immigration court, including the failure of the ICE officers to obtain an arrest warrant in violation of

(c)(2)(ii); the failure of officers to identify themselves during the arrest in violation of

(c)(2)(iii); the officers' choice to leave Medley unattended in the vehicle in violation of

(d)(1); and examination by an arresting officer in violation of

(a). See S. App'x at 35. Because these claims were not raised on appeal to the BIA, we deem them waived. See Lin Zhong v. U.S. Dep't of Just.,

(2d Cir. 2007); Cervantes-Ascencio v. U.S. I.N.S.,

(2d Cir. 2003) (per curiam). Moreover, even assuming they were not waived, for the reasons discussed below, they do not constitute a basis for termination -- with or without prejudice. 24 2. Termination With Prejudice

As in Rajah, we assume without deciding that an egregious pre-

hearing violation could warrant termination with prejudice of Medley's removal

proceedings. Because we do not find that the challenged conduct was "so

egregious as to shock the conscience," Medley is not entitled to such a remedy,

on the assumption that it exists. Rajah,

. The alleged improprieties

here are, for the most part, similar to the challenged conduct in Rajah, where we

held that the purported regulatory violations were not egregious and did not

merit termination with prejudice.

. Though Medley, unlike the Rajah

petitioners, also alleges that the officers' physical conduct warrants termination,

we cannot say that the challenged conduct is egregious or shocks the conscience.

We have no allegation here that Medley's arrest and interrogation

were based on impermissible considerations such as race, which could give rise

to an egregious violation. See, e.g., Almeida-Amaral,

. Instead, we

assess the "characteristics and severity of the offending conduct."

Here, the

purported violations largely resemble those in Rajah and Alnahham, where we

held that termination with prejudice was not warranted because the violations

neither shocked the conscience nor violated fundamental rights. See Rajah, 544

25 F.3d at 446; Alnahham,

. In Rajah, we assumed that the

following violations occurred: (1) at least some of the petitioners had been

arrested without a warrant, in violation of

(c)(2)(ii), (2) at least

some of the petitioners were not notified of their arrest until after substantial

questioning had occurred, in violation of

(c)(2)(iii), (3) the

petitioners were examined by arresting officers, in violation of

(a),

and (4) a seven-hour interrogation of a petitioner, interrupted by two intervening

stints where he was placed in a cell, amounted to coercion, in violation of

(c)(2)(vii). Rajah,

. 5 The petitioner in Alnahham

alleged the same four violations. Alnahham,

. He also alleged

that he was held at 26 Federal Plaza for more than 24 hours and that that ICE

interfered with his right to counsel.

. The court, however, found that

his right to counsel was not violated, as Alnahham had not clearly invoked his

right.

5 The petitioners also alleged that their attorneys' inability to access the interrogation room violated their right to counsel. Rajah,

. Because we noted that the petitioners had not brought their attorneys to these scheduled interviews, we rejected the contention that such actions constituted a regulatory violation.

26 In Rajah, the Court rejected the claim that ICE employed coercive

tactics because the interrogations "did not involve the kind of circumstances that

prior courts have found coercive, such as marathon questioning or

misinformation as to their rights."

. As for the fourth petitioner who

was questioned for seven hours, we noted that the IJ found the duration was

coercive, but we declined to find that the interrogation was egregious conduct

such that it provided a basis for termination, explaining that "the

interrogation, . . . while undoubtedly unpleasant, did not rise beyond the level of

being long and tiresome."

.

The tactics used by ICE during Medley's interrogation similarly do

not amount to unlawful coercion. Although Medley contends that the officers

attempted to coerce him to sign certain documents by threatening to continue

withholding food, water, and medical treatment and refusing to call his attorney,

he was not subject to "marathon questioning" and was not misinformed about his

rights. Rajah,

. 6 Instead, the ICE officers initially provided Medley

6 Medley does not specify how long the interrogation lasted. See S. App'x at 41-42. Per the Form I-213, Medley was arrested on December 20, 2017, at 11:45am, arrived to the ICE facility at 11:55am, made a telephone call to his wife at 1:15pm, and was provided with a meal at 1:30pm. A.R. 1867-68. If this timeline is correct, it supports Respondent's contention that the interrogation lasted approximately one hour. See Resp. Br. at 40. 27 with a list of pro bono immigration attorneys and stopped questioning Medley as

soon as his lawyer sent a message invoking his rights, although the officers,

according to Medley's allegations, had previously ignored Medley's own

invocation of his rights. See S. App'x at 41-42. Medley neither gave involuntary

statements nor contests any evidence that was gathered during his interrogation,

and he concedes that he received medical attention soon after the interrogation

ended.

Nor does the purportedly coercive conduct violate Medley's due

process rights under the Fifth Amendment. Due process protections "are

available only against egregious conduct which . . . can fairly be viewed as so

brutal and offensive to human dignity as to shock the conscience." Smith ex rel.

Smith v. Half Hollow Hills Cent. School Dist.,

, 173 (2d Cir. 2002) (per

curiam) (internal quotation marks and citation omitted). The officers' tactics, as

alleged by Medley, cannot be characterized as so offensive or brutal to amount to

egregiousness, given the comparatively short length of the interrogation, the

brevity of the threats of withholding food, water, and medical treatment, and the

low level of his need for medical treatment. While Medley does allege he was

bleeding as he was being questioned, the only medical treatment that he required

28 after the interrogation was a re-dressing of his wound, which indicates that the

threat to withhold medical treatment did not have significant coercive impact.

Medley's affidavit does not specify the seriousness of his bleeding, and we will

not infer gravity that the petitioner has failed to allege. Based on all of the above,

we conclude that the abusive conduct alleged by Medley was not so egregious as

to justify termination.

Medley also asserts that the ICE officials violated

(b),

which provides the right to counsel during "examination[s]." While Medley is

correct that an officer's ignoring a noncitizen's request for an attorney is a

significant violation of rights, that violation (if it occurred) had no adverse

consequences for him. It is not as if the officers secured evidence to be used

against him by failing to honor his right to counsel. Despite any violation that

occurred, Medley acknowledged that he held fast, refusing to answer questions

or sign documents. Even if the violation alleged was sufficiently egregious to

justify suppression of evidence obtained through the violation (of which there

was none), it would not justify termination of the proceeding seeking his

removal. See Lopez-Mendoza,

-51 & n.5 (explaining that

suppression of evidence may be available as a remedy for "egregious violations"

29 of the Fourth Amendment, citing Matter of Garcia,

(BIA

1980), in which evidence of alienage obtained after petitioner's right to counsel

was invoked was suppressed).

In Rajah, we assumed without deciding that egregious pre-hearing

regulatory violations would be grounds for termination, but we concluded that

none of the alleged violations were egregious, in part because they were

"harmless." Rajah,

. Here, as in Rajah, we need not concern

ourselves with whether and in what circumstances egregious conduct will justify

termination of the proceedings because the denial of counsel alleged by Medley

was brief and harmless.

We next address Medley's contention that the circumstances of his

arrest violated agency regulations prohibiting the use of unnecessary non-deadly

force under

(a)(1)(ii)-(iii). We assume without deciding that the

use of excessive force, if egregious, can be the basis for terminating proceedings

with prejudice. It may well be that the arresting officers treated Medley more

roughly than was appropriate. While arresting him, according to his allegations,

the officers pushed Medley against a shelving unit, threw away the medication

he was given after his surgery, and threw his "Know Your Rights" card to the

30 ground. See Pet. Br. at 7-9. The officers grabbed his bandaged hand while

handcuffing him and caused it to bleed. See id. at 7. They also ignored his

entreaties to be taken to the hospital and later disregarded his requests for food

and water at the ICE facility. See id.

Despite such roughness, we are unable to say that the ICE officials'

conduct so deviates from the routine rough and tumble of an arrest --

particularly of someone with an extensive history of arrest and who has been

charged with resisting arrest on six prior occasions -- such that it warrants

termination with prejudice. See, e.g., Landy v. Irizarry,

(S.D.N.Y. 1995) ("[T]he right to make an arrest necessarily allows the use of some

degree of force to effect it . . . ."); Pooler v. Hempstead Police Dep't.,

(E.D.N.Y. 2012) ("Physical force is often necessary when effectuating

arrests . . . and, thus, not every push or shove is unconstitutionally

excessive . . . ." (internal quotation marks and citation omitted)); Rodriguez v.

Village of Ossining,

(S.D.N.Y. 2013) (observing that

arresting officers are "authorized to use some degree of force or the threat thereof

to effect [an] arrest" (internal quotation marks and citation omitted)); see also

Brown v. City of New York,

(2d Cir. 2015) (noting that "[p]olice

31 officers must be entitled to make a reasonable selection among alternative

techniques for making an arrest"). The Form I-213 report, which recorded the

details of the arrest, indicated that Medley had been arrested seven times in three

years for assault, disorderly conduct, and other crimes. A.R. 1865-66. It also

noted that ICE had issued five detainers for Medley prior to his arrest and that

they had not been honored by New York authorities. Id. at 1867. Therefore, a

degree of roughness in arresting Medley was not unreasonable given the officers'

knowledge of this criminal history. See

(a)(1)(iii) (providing that

immigration officers "shall escalate to a higher level of non-deadly force [during

an arrest] only when such higher level of force is warranted by the . . . apparent

capabilities of the suspect"); Graham v. Connor,

(1989) (holding

that the reasonableness of force deployed during an arrest is judged using the

"facts and circumstances of each particular case" from the perspective of "a

reasonable officer on the scene"); Sullivan v. Gagnier,

(2d Cir.

2000) (per curiam) ("The force used by the officer must be reasonably related to

the nature of the resistance and the force . . . reasonably perceived to be

threatened[] against the officer.").

32 Minor injuries in the process of an arrest do not necessarily justify an

excessive force claim, let alone shock the conscience. See, e.g., Lennon v. Miller,

(2d Cir. 1995) (rejecting an excessive force claim where the police

forcibly removed the plaintiff from a car, injuring her wrist in the process, noting

that it was necessary to do so to execute the arrest). We have "long rejected the

principle that handcuffing is 'per se reasonable'" and have previously held that

excessive force during handcuffing can, in some instances, give rise to a

fundamental rights violation. Cugini v. City of New York,

(2d

Cir. 2019) (quoting Soares v. State of Conn.,

(2d Cir. 1993)). In this

instance, however, although the arresting officers may have deployed a degree of

force that was greater than appropriate, we have no basis to conclude that any

abuse was egregious or conscience-shocking.

Finally, Medley argues that a totality of the circumstances analysis

requires a finding that the challenged conduct shocks the conscience. See Pet. Br.

at 25-26. In support of this assertion, Medley points to Rochin, the case involving

forcible stomach pumping, and contends that the challenged conduct during his

arrest and interrogation is "similarly severe[,] . . . if not more egregious." Id. at

26. We are unpersuaded. Though we have held that Rochin does not set the bar

33 for egregious conduct, see Cotzojay,

, the ICE officers' use of limited

force and interrogation tactics does not compare with the conscience-shocking

and intrusive conduct in Rochin. The ICE officers arrested Medley pursuant to a

DHS arrest warrant and the amount of force that they allegedly used, even if

more than appropriate, was not shocking or egregious. At the ICE facility, the

officers employed interrogation tactics that do not amount to unlawful coercion.

If, as Medley alleges, the officers threw away Medley's pain medication

following a minor surgery, this may offend notions of decency but does not

amount to an "unnecessary and wanton infliction of pain" or a "deliberate

indifference to serious medical needs" that is "repugnant to the conscience of

mankind." Estelle v. Gamble,

(1976) (internal quotation

marks and citations omitted). The officers' conduct here was not so extreme,

brutal, and "offensive to human dignity" such that it shocks the conscience.

Mara,

. Moreover, Medley does not contend that the officers lacked

sufficient legal grounds for the arrest or that they did so pursuant to

impermissible considerations. See Pet. Br. at 21.

Therefore, we conclude that termination of Medley's removal

proceedings with prejudice is not warranted because the challenged conduct was

34 not conscience-shocking or egregious, which is, by definition, "extreme, rare, and

obvious." Maldonado,

.

3. Termination Without Prejudice

We have concluded that the violations were not egregious or

conscience-shocking. There still may be a basis for termination, without

prejudice to renewal, but only if the pre-hearing violations resulted in prejudice

to the outcome of the proceedings. Rajah,

.

Here, however, given the absence of prejudice to the outcome of the

proceedings, we hold that termination of Medley's removal proceedings without

prejudice to renewal is not warranted. There was substantial evidence

establishing Medley's removability independent of his arrest. See S. App'x at 26.

DHS presented to the IJ copies of Medley's passport, visa, and database entries

that confirmed his date of entry. All three records make clear that Medley was

authorized to remain in the country until December 6, 2006, and that he stayed in

the country well beyond that date. The arrest warrant issued by DHS was based

on "biometric confirmation of the subject's identity and a records check of federal

databases that affirmatively indicate, by themselves or in addition to other

reliable information, that the subject either lacks immigration status or

35 notwithstanding such status is removable under U.S. immigration law." A.R. at

1862. Medley's passport, visa, and database entries confirming his nationality

and immigration status constitute "clear, unequivocal, and convincing evidence"

of his visa overstay. Zerrei,

(finding that a noncitizen's

passport, independent of any evidence from INS databases, was convincing

evidence of alienage and overstay). The pre-hearing violations alleged here do

not change the fact that Medley is removable.

Moreover, Medley does not -- and could not -- contend that the

challenged conduct prejudiced the outcome of proceedings or that evidence of

his status collected pursuant to his arrest should be suppressed. In counseled

pleadings during his removal proceedings, he conceded his removability. A.R. at

2060. The Supreme Court has suggested that regardless of how an arrest

transpires, "the removal of an individual could still be supported by otherwise

admissible 'evidence not derived directly from,' but rather 'gathered independently

of, or sufficiently attenuated from,' the arrest." Vanegas-Ramirez,

(quoting Lopez Mendoza,

). Here, Medley's concession occurred

more than three months after the arrest, which is "sufficiently attenuated from"

the arrest.

(emphasis omitted). Both the concession and DHS's evidence

36 independently confirm Medley's status as a removable noncitizen. Thus, had

Medley made an evidentiary challenge, he would have had no grounds on which

to challenge the violations on the basis that they were prejudicial.

CONCLUSION

Under Rajah, termination may be warranted for pre-hearing

regulatory violations in cases involving "prejudice that may have affected the

outcome of the proceeding, conscience-shocking conduct, or a deprivation of

fundamental rights."

. As Medley has failed to show that he

satisfies any of the three requirements for termination, he is not entitled to

termination of his removal proceedings, with or without prejudice to renewal.

Because the immigration court did not abuse its discretion in denying the

motions to terminate, the petition for review is DENIED.

37