Aparisi, Jaime Winthuysen

.b. cgBImcu of J 0SC0

Executive Ofce fr Immigration Review
BoardofImmigrationAppeals
OceoftheC|erk
5 J 07 Leesburg Pike, Suile 2000
Fals Church, Vrginia 20530
Law Ofces of Jaime Winthuysen Aparisi
b Fenton Street, Suite Z
OHS/ICE Ofice of Chief Counsel - BAL
J Hopkins Plaza, Room Jb
Baltimore, MD ZJZJ
Silver Spring, MD ZJ
Name: LARA TORRES, DAVID ANTONIO A 4-ZJ-Z4
Date of this notice: TZZJ4
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
FHel MeDDet5.
P0KDS-3DCD, LH3I|BS b.
LI3Dl, L0W3f0 |.
LUBD0BSDBIgBI, JDDD
Sincerely,
D C6
Donna Carr
Chief Clerk
yungc
U5eIleD: LDCKl
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: David Antonio Lara-Torres, A094 218 294 (BIA Jan. 28, 2014)
U.S. 6g8ItH6B 0J08C6
Executive Offce mtImgration Review
Decision of te Board of I igration Appeals
Falls Church, Virgina 20630
File: A094 218 294 - Baltimore, Date:
1/H d/!1
H re: DAVI ANTONO LARA-TORRS
I REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONENT: Jame Wintuysen Apaisi, Esquie
ON BEHAF OF DHS:
APPLICATION: Terination
Kala S. Baker
Assistat Chief Cousel
The Depaent of Homelad Security (DHS) has fled a timely appeal fom te Imigration
Judge's decision dated July 2, 2012. That decision grated a motion to suppress evidence ad
terinate proceedings fled by the respondent, a native ad citizen of El Salvador. We will
dismiss the appeal.
We review Imigration Judges' fndings of fct fr clea error, but questjons of law,
discretion, ad judgent, ad all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3).
We conclude tat the fndings of fct made by te Immigration Judge ae not clealy
eroneous. Based on those fndings, the Imigration Judge corectly concluded tat te
evidence obtained by offcers of the Natonal Security Agency (NSA) on Mach 31, 2010, wit
regad to te respondent's im igation stats, whch prompted ofcers of te United States
Imigation ad Customs Enfrcement (ICE) to detain the respondent ad place him in remova
proceedings, should be suppressed.
On appeal, te DHS agues tat te Imigration Judge ered in (1) fding tat te Unted
States Supreme Cour's decision in 1 v. Lopez-Mendoza, 468 U.S. 1032 (1984), ad
subsequent decisions issued by the United States Cou of Appeals fr the Fouh Circuit, created
an "egegous violations" exception to te Fouh Aendment exclusionay rule applicable to
immigaton proceedigs, ad (2) fnding that egregous conduct did occur in tis case where
ofcers of the NSA held the respondent fr several hous while awaiting te ar val of ICE
ofcers. D response, te respondent agues that the Im gation Judge's decision was corect in
all respects ad should be affred ad that te DHS's appeal should be dismissed.
We ae not persuaded by te DHS's aguments ad we affr the Imigation Judge's
decision fr the reaons set D therein (I.J. at 6-15). We agree with the Im igation Judge tat
te respondent met hs burden of establishing a prima fcie case that suppression is warated in
his proceedings on te basis of the NSA offcers' egregious conduct. See Matter of Barcenas, 19
I&N Dec. 609, 611 (BIA 1988); Matter of Tang, 13 I&N Dec. 691 (BIA 1971). Altoug te
respondent conceded tat his initial detention was lawfl, the evidence indicated that te NSA
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Cite as: David Antonio Lara-Torres, A094 218 294 (BIA Jan. 28, 2014)
.
A094 218 294
offcers did not pursue diligently the tafc stop ad instead chose to embark on a paallel
ivestigation into the respondent's immigration status while ueasonably prolo
n
ging his
detention fr approximately fur hours. See United States v. Guion-Ortiz, 660 F.3d 757, 770
(4th Cir. 2011) (emphasizing that a offcer who lawflly stops a individua fr one purpose but
abadons te prosecution of the stop to investigate a diferent potential violation ha
uneasonably prolonged the stop); United States v. Digiovanni, 650 F . 3d 498, 508-09 (4t Ci.
2011) (diligence is not present where the police ofcer abandoned the prosecution of te trafc
stop and embaked on aother sustained course of investigation or where te unelated questions
constitted te bulk of the iteraction between the police offcer ad the defndat); United
States v. Mason, 628 F.3d 123, 132 (4t Cir. 2010) (holding that questonig unrelated to te
initial justifcation fr a stop may violate te Fourth Aendment if it unreasonably prolongs the
detention of the individual who has been stopped). Moreover, even thoug te NSA offcers
ultimately gave the respondent a traffc citation, te bulk of their questions related to his
immigration status.
We also agee wit the Immigation Judge tat the Fourth Amendment violation described by
the respondent was egregious because it seemed to be based solely on race (Gonzalez-Rivera v.
IS, 22 F.3d 1441, 1443 (4th Cir. 1994); see also Tr. at 14-15, 18, 27-31), ad that such conduct
warants suppression of te evidence obtaed. INS v. Lopez-Mendoza, supra, at 1051. The
Immigation Judge made specifc fndings of fct on this, which are not clealy eroneous. The
Imigation Judge fund that while the respondent was detained, 20 oter drivers committed the
sae trafc violation that he had committed, yet only one oter driver, also Hispac, was
questioned regading his imigration status. Both white ad black drivers were stopped briefy
but were allowed to pass ad no other driver received a citation fr ting into the NSA fcility.
Althoug the DHS suggested that the other drivers may have come to te NSA fcility
puroseflly, te Iigration Judge fund that it is implausible tat a driver who intended to
visit the NSA would simply t around ad leave immediately afer ar val, without going
inside the fcility. Ths fnding also is not clearly eroneous. We also agree that suppression of
the evidence is appropriate here because te subject of civil immigation proceedings was not
witin the "zone of prima interest" of te NSA ofcers who stopped ad questioned te
respondent (I.J. at 12-14). See United States v. Janis, 428 U.S. 433, 458 (1976).
We fher agree with the Im igation Judge that the DHS did not meet its burden to justif
the man er in which it obtained the evidence in question here, including evdence fom the
Marylad Motor Vehcle Admistation, whch was obtained as a result of the unlawfl actions
of the NSA ofcers. As expressed by the Iigration Judge, citing Wong Sun v. United States,
371 US 471, 491 (1964), the connection beteen the MVA records ad the unlawfl conduct of
the NSA ofcers is not so attenuated as to dissipate te taint. Also, the DHS did not present
genuinely independent evidence of the respondent' s alienage. Nor did it submit affdavts or
testimony fom te NSA offcers, call logs fom te NSA gatehouse, or other evidence to rebut
the fnding of a prima fcie violation of the Fourth Amendent. Therefre, we agee with the
Imigation Judge's deterination to terinate these proceedings with prejudice on te basis
that the evidence on whch the DHS seeks to rely is subject to suppression. See Matter of Garcia,
17 l&N Dec. 319 (1980).
Given te fregoing, we decline to disturb the Imigation Judge's decision granting the
respondent' s motion to suppress evidence ad terinate his removal proceedigs.
2
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Cite as: David Antonio Lara-Torres, A094 218 294 (BIA Jan. 28, 2014)
. A094 Z1 294
Accordgly, te fllowng order shall be entered.
ORDER: Te appeal is dismissed.
J
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Cite as: David Antonio Lara-Torres, A094 218 294 (BIA Jan. 28, 2014)
In the Matter of
United States Department of Justice
Executive Offce fr Immigration Review
United States Immigration Court
Baltimore, Maryland
In Removal Proceedings
David Antonio LARA TORRES Case #A 4 - Z16 - Z4
Respondent
Charge: Immigration and Nationality Act ("IA") 212(a)(6)(A)(i)
Applications: Respondent's Motion to Suppress and Terminate
Appearances: Yusuf R. Ahmad, on behalf of the Respondent;
Karla S. Baker, on behalf of the Department of Homeland Security
Decision and Order re: Respondent's Motion to Suppress and Terminate
I. Procedural History
The Respondent is alleged to be a native and citizen of El Salvador. On March 31, 201 0, the
Respondent was given a traffc citation while driving on National Security Agency ("NSA")
property. The NSA ofcers who issued the citation also infred Immigration ad Customs
Enfrcement ("ICE") of the Respondent's presence on the property, and he was detained by ICE
ofcers on the sae date. On April 1 , 2010, he was placed in proceedings through the issuance of
a notice to appear ("NTA"). The NTA charges him with removability under INA 212(a){6)(A)(i)
a an alien who is present in the United States without being admitted or paroled.
On February 17, 2011 the Respondent appeared befre the Immigration Court and, through
counsel, denied all allegations contained in the NTA and the charge of removability. He also
indicated his intent to fle a motion to suppress and terminate. The Court continued the Respondent's
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On August V,21J,the Court issued an order requesting supplemental briefng in light of the
Fourth Circuit's recent decision in United States v. Digiovanni, 650 F. 3d 498 (4th Cir. 2011). The
Cour also permitted the Respondent to submit an amended afdavit in light of the guidance and
clarifcation provided by Digiovanni. On September 30, 2011, the Respondent submitted a brief
addressing the application of Digiovanni to his case, as well as a supplemental affdavit. The DHS
fled a brief in response on November 30, 2011.
On April 17, 2012, the Court issued a decision fnding that the Respondent had alleged fcts
which could support a basis fr suppressing the evidence presented by the DHS. As a result, the
Court ordered an evidentiary hearing to allow the parties to fuher develop the record. The hearing
was held on June 5, 2012, and at that hearing the Respondent provided testimony in suppor of his
motion. Neither par ofered other witnesses or submitted additional evidence. At the close of the
hearing, both parties indicated tat they would rest on the written arguments they had already
submitted. At issue befre the Court is whether the evidence presented by the DHS should be
suppressed, resulti
n
g in the termination of these proceedings.
II. Statement of the Case
A. Respondent's Motion to Suppress
The Respo
.
ndent concedes that the initial stop conducted by te NSA ofcers was valid;
however, he argues that he was subjected to questioning and prolonged detention in violation of the
Fourth and Fifh Amendments of the U.S. Constitution and valid regulatory authority. Specifcally,
he alleges that he was questioned about his immigration stats and detained fr fur hours on the
basis of his race. He aso asserts that he was not infrmed of his right to remain silent or his right to
an attorey. He therefre seeks to suppress all evidence obtained as a result, whether directly or more
indirectly, of the trafc stop conducted by the NSA. Finally, he argues that in the absence of this
evidence, the DHS has filed to meet its burden of proof and that these proceedings should terefre
be terinated.
B. DHS's Brief in Support of Removal and Opposition to Respondent's Motion to
Suppress
The DHS argues that the exclusionay rule does not apply in immigration proceedings. The
DHS fher argues that even if the exclusionary rle applies, the Respondent's questioning and
detention were not in violation of the Fourth or Fifh Aendments and that any alleged violations
were not sufciently egregious to warant suppression. In addition, the DHS argues that the
Respondent has filed to specif how ICE agents violated DHS regulations. Finally, the DHS argues
that the Respondent's motion is moot because the D HS has introduced evidence of alienage obtained
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L. Respondent's Supplemental Brief

.
.
In his supplemental brief, the Respondent asserts that the lawfl traffc stop initiated by the
NSA ofcer was unreasonably prolonged by a parallel investigation ad questioning regarding the
Respondent's im igration status. He fher argues that the evidence refects that the NSA offcer's
primay concer was the Respondent's immigration status, not the trafc violation.
D. DHS's Supplemental Brief
In its supplemental brief, te DHS reiterates that the exclusionary rule does not apply in civil
immigration proceedings. The DHS also contends as fllows: "The cour should not be distracted
by events which occurred befre the respondent was detained by DHS, and given te security
requirements of a fcility such as NSA, may well have been warranted. Regardless of the propriety
of the stop conducted by the NSA police, such conduct does not mean that all evidence derived
therefom is suppressible."
III. Statement of the Facts
The fllowing documentary evidence was received by the Court ad marked fr
identifcation: Exhibit Respondent's Notice to Appear; Group Exhibit 2, DHS Submission of
Evidence Tabbed A-E; Exhibit 3 , DHS Submission of Evidence Tabbed F (Respondent's Driver's
License Application and Supporting Documents); Group Exhibit 4, Respondent's Motion to
Suppress and Terminate Tabbed A-B; and Exhibit 5, Respondent's Brief in Suppor of Motion to
Suppress Tabbed A (Respondent's Supplemental Afdavit). In his motion, the Respondent sought
the suppression of all evidence submitted by the DHS. As a result, only Exhibit 1 Group Exhibit 4,
and Exhibit 5 were admitted into the record prior to the evidentiay hearing.
In support of his Motion to Suppress, the Respondent submitted two affdavits and testifed
befre the Cour. No other testimony or evidence was presented regarding the Respondent's arrest.
A. The Respondent's Affdavit and Supplemental Affdavit
According to 'the Respondent, on March 31, 2010 at around 1:00 pm he was driving with two
fiends when he made a wrong tu into the entrance to an NSA fcility. The ofcers at the gate
asked him fr his driver's license and registration, which he provided. An ofcer instructed the
Respondent ad his passengers to wat outside the vehicle and lef fr about twenty minutes. When
the ofcer retured, he did not ask any questions regarding the trafc infaction; rather, he began to
question the Respondent and his passengers about their immigation status. He asked if they had
entered through Texas or Los Angeles and if they came to te United States by air or by fot. He also
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during this encounter. Afer asking questions fr an additional ffeen minutes, the ofcer told the
Respondent to "move the truck and wait" but did not tell him why he needed to wait. The
Respondent and his fiends were held until 5:00 pm, when ICE offcers took them into custody.
While they were waiting, the Respondent saw at least twenty cas come into the gated aea
by accident and was close enough to hear the conversation between the NSA offcers and the drivers.
Only one other driver was stopped fr additional questioning. Like the Respondent, he "appeared
to be of Latino origin and did not speak English well." This driver was released, appaently because
his fmily was with him and his two small children were crying. Other drivers who pulled into the
gated area spoke English well, ad no immigration questions were asked of them. Two women who
pulled into the gated aea were not even asked fr license and registation. While the Respondent
was waiting, no other vehicle was ticketed fr ting into the gated area.
B. Testimony of the Responden
Brefy sumarized, the Respondent testifed that aound : 00 pm on March 3 1 , 2010, he
arved at a security gatehouse that is par of the NSA. There were three of them in the vehicle.
Offcers asked fr identifcation fom the Respondent and his passengers and instrcted them to get
out of the tuck so that they could check the vehicle. The Respondent provided his driver's license,
and te offcers took it into te gatehouse. Twenty or twenty-fve minutes later, one of the ofcers
retured and staed to ask te Respondent questions about his imigration status. Te Respondent
does not kow what the ofcer was doing during the twenty or twenty-fve minutes that he was in
the gatehouse. However, the ofcer did not ask the Respondent any questions related to his traffc
violation, and the Respondent had a valid driver's license. Afer questioning the Respondent about
his immigration status, te offcer returned to the gatehouse. More time passed, ad the offcer
retued to ask the Respondent frther questions about his immigration status. The Respondent
answered some of the questions asked of him, but not all. The offcer then asked the Respondent to
pull the truck over and wait. Te Respondent ad his fiends waited fr fur hous.
While the Respondent and his fiends were waiting, several other cars pulled into te gated
aea, but they were let go afer the NSA offcers briefy checked them over. None of the other cars
were asked to wait.
At the end of the fur hours, at around 5 : 00 pm, immigration agents came and placed the
Respondent and his fiends into an immigration van. The NSA offcers gave the Respondent a ticket
fr his traffc violation only after he was already in the custody of the immigration ofcials. The
Respondent ad his fiends were tal(en away by the ICE offcers a fw minutes afer those offcers
arrived.
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offcers did not retu the Respondent's drver's license to him; instead, they gave it to the
immigration offcers when they a ived. He did not have any contact with an ICE ofcer, either on
the phone or in person, befre the ICE ofcers came to tae him into custody.
The Respondent testifed that he speaks a little English and that his racial appearance is
Hispanic Latino. He was asked why his afdavit indicates that he understood the conversations
between NSA ofcers and the drivers of other vehicles if he only speaks a little English. He stated
that he could hear the conversations and that he understood some of what he head. He does not
know what kind of identifcation the other drivers provided to the NSA ofcers. He also
acknowledged that he could not hear the conversations inside the gatehouse.
He was asked how he knew other drivers pulled up to the gatehouse by accident. He
responded that they would enter ad then tum around and leave quickly.
When asked fr hs date of birth, the Respondent initially declined to aswer. When asked
agan, he stated that he was bor on Janua 25, 1990. He curently lives in Maryland.
The Cour asked a few additional questions. The Respondent confred that he pulled up to
the NSA gatehouse by accident and that he was driving at the time. When he pulled up, there were
two or thee NSA offcers. They asked fr his license ad instructed him and his passengers to get
out of the truck so that they could inspect it. Then all of the NSA offcers, including the ofcer who
had the Respondent's driver's license, went inside the gatehouse.
Twenty or twenty-fve minutes later, one ofcer came out of the gatehouse and began aking
the Respondent and his fiends questions about immigration. He asked questions fr between seven
and ten minutes. During that time, the ofcer did not mention the wrong tur or state that te
Respondent might get a ticket. Afer asking his questions, the offcer told te Respondent ad his
fiends that they had to move the truck to one side and went back inside the gatehouse. They waited
there fr fu hours.
No other NSA ofcers came to spea to tem until they were hadcufed. At that time, the
NSA ofcers told them that they were going to be "sent home." They never mentioned the wrong
tun or that the Respondent might be issued a ticket. They put the Respondent and his fiends into
one of the NSA tucks, but they did not spea to them while they were in the truck. Approximately
ffeen minutes afer the NSA ofcers handcufed the Respondent and his fiends, ICE offcers
arived. The NSA ofcers then took their handcufs of and ICE put diferent handcufs on the
Respondent and his fiends. The NSA ofcers also gave te Respondent a ticket ad told him to sign
it. They had never mentioned a ticket befre that point.
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drivers come to the gatehouse by accident about every ten minutes. Only one other vehicle was
stopped. The diver and passengers were also Hispanic, and the NSA offcers began to ask tem
questions about immigration. However, the offcers let them go afer the children in the ca began
to cr. The Respondent ackowledged that one Hispanic man was allowed to tu aound without
being stopped and questioned about immigration. The other drivers who were allowed to pass
appeaed to be white or black.
IV. Statement of Law
An I igration Judge may receive into evidence any oral or written statement that is
material and relevant to ay issue in the case ad that has been previously made by the respondent
or by any other person during investigation, examination, hearing, or trial. 8 CFR 1240.7(a). The
Federal Rules of Evidence do not apply in immigration proceedings ad evidentia determinations
are limited only by due process considerations. Anim v. Mukasey, 535 F .3d 243, 256 (4th Cir. 2008).
Evidence is generally admissible if it is probative and fndaentally fair. Matter ofVelasquez, 19
I&N Dec. 377, 380 (BIA 1996). Neverheless, in some cases it may be appropriate to suppress
evidence obtained in violation of the Constitution or certain regulatory provisions.
A motion to suppress must be made in writing and be accompanied by a detailed afdavit
that explains the reasons why the evidence in question should be suppressed. Matter of Wong, 13
I&N Dec. 820, 822 (BIA 1971). The party seeking to suppress evidence initially bears the burden
of proof and must establish aprimafacie case of illegality. Matter ofTang, 13 I&N Dec. 691 (BIA
1971). To establish aprimafacie case, the party must provide specifc, detailed statements based
upon personal kowledge; such allegations canot be general, conclusory, or based on counsel's
statements. !dMater ofRamirez-Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); Matter ofBarcenas,
19 I&N Dec. 609 (BIA 1988). The opporunit to provide testimony is only warranted where the
fcts alleged in the afdavit, if true, could provide a reason to suppress te contested evidence.
Matter of Barcenas, 19 I&N Dec. at 611. Once the moving party establishes a prima facie case that
suppression is waranted, the goverent "must assume the buden of justifing the maner in which
it obtained the evidence." See id (quoting Matter ofBurgos, 15 l&N Dec. 278, 279 (BIA 1975)).
Where the evidence on which the DHS seeks to rely is subject to suppression, the
proceedings will generally be terminated. See Matter ofGarcia, 17 l&N Dec. 319 (BIA 1980). DHS
may, however, establish removability though independently obtained evidence. See, e. g., Matter of
Cervantes-Torres, 21 l&N Dec. 351, 353 (BIA 1996); Matter ofVelasquez, 19 I&N Dec. 377, 380
(BIA 1986). This is because, while prosecutors canot beneft fom the ulawfl conduct of
govenent agents, they should be lef "in the same, not a worse, position that they would have been
in if no police error or misconduct had occurred." Murray v. United States, 487 U.S. 533, 537 (U.S.
1988) (quoting Dv. Williams, 467 U.S. 431, 443 (1984)) (emphasis in original).
1hccxcusondcpovdcsU cV0cDc0DIaD0 a a HR Da lOOu Pmu
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attenuated. Wong Sun v. United States, 371 U.S. 471 (1963). However, a individual cannot
generally invoke the exclusiona rule to suppress evidence obtained in violation of the Fourth
Amendmentincivil immigratonproceedigs. INSv. Lopez-Mendoza,468 U.S. 1032 (1984) (fnding
that the exclusionay rule is inapplicable in civil deporttion proceedings); Matter ofSandoval, 17
I&N Dec. 70 (BIA 1979).
Nevertheless, the Supreme Court has lef open the question of whether suppression might be
warranted in civil imigration proceedings based on "egregious violations of Fourth Amendment
or other liberties that might transgress notions of fndamental firess and undermine the probative
value of the evidence obtained. " See Lopez-Mendoza, 468 U.S. at 1051. Indeed, several Circuit
Courts of Appeal have held or suggested that such egregious violations warant the application of
the exclusionar rule in removal proceedings. See, e.g. , Gonzalez-Rivera v. INS, 22 F.3d 1441 (9
1h
Cir. 1994); Almeida-Amaral v. Gonzales, 461 F.3d 231, 236 (2d Cir. 2006); Kandamar v. Gonzales,
464 F. 3d 65, 71-72 (1st Cir. 2006); Martinez Camargo v. INS, 282 F. 3d 487 (7th Cir. 2002).1
Moreover, the Second ad Nint Circuits have held tat a search or seizure based solely on race is
per se egregious. Gonzalez-Rivera v. INS, 22 F .3d at 1443 (holding that a "stop, which resulted solely
fom [an individual's] Hispanic appearance, constituted a bad fith ad egregious violation of the
Fourt Amendment."); Almeida-Amaral v. Gonzales, 461 F .3d at 23 7 (noting that if a stop was based
solely on race, "the violation would be egregous, and te exclusiona rule would apply.").
The body oflaw addressing the whether ofcial conduct violates te Fourh Amendment is
extremely broad and complex. However, fr puroses of the Respondent's Motion to Suppress, the
most relevant precedent discusses the circumstances in which an individual lawflly detained may
be questioned regarding an ofense fr which the aresting ofcer has no reasonable suspicion. Under
the Supreme Cour's decision inMuehler v. Mena, a individual who has been properly detained fr
one purpose may be questioned about urelated potential violations without reasonable suspicion,
provided te unelated questionng does not prolong his or her detention. 544 U.S. 93, 101 (2005).
Neverheless, questioning urelated to te initial justifcation fr a stop may violate the Four
Aendment if it unreasonably prolongs the detention of the individual who has been stopped. See,
e.g., United States v. Mason, 628 F.3d 123, 132 (4th Cir. 2010)(citing//linois v. Cabales, 543 U.S.
405, 407-08 (2005)). For instance, "[a] seizure that is justifed solely by the interest in issuing a
wang ticket to the driver can become unlawfl if it is prolonged beyond the time reasonably
required to complete that mission. "mnois v. Caballes, 543 U. S. at 407. As a result, the Supreme
Court has recognized that "[ d]etaning individuals solely to verif their immigration status would
1 The Fourth Circuit has not addressed this precise issue in published precedent. The OH5argues that the
Four Circuit's opnOnm United States +. Oscar-Torrei 507 F.3d 224 (4th Ci. 2007), holds that the exclusionar
rule does not apply m immigration prOcccd:n,"even mra1Jeged egegious miscOnducL lnOscar-Torre, the
loumCrcutobscrcdthatuadcrLop-Mnd,he cxcmsonaqmdocsno apply mcv|Idepmta
p .'!m230HuwcvcrmscdctsOumcc moRWcobI|qtu(
m:tqVuImT: a ynm
oIhcri>cLs'' I./at2271L l. !h>hcldsconss|cn|wUunubhcdgi0m\comIhc!ouiVLi|cut
indicaing Ihategregious Fourh Amendment v\Oatknsmaywanan!s0pprcssonmrcmOvaIproceedings. 5ce c.,
Uiev. L5,l.2d53(Cr . w9)
7
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raise constitutional concers" if it prolonged the length of an otherwise legitimate stop. Arizona v.
United States, No. 11-182, 2012 2368661, at * 16 (U.S. June 25, 2012) (citing Illinois v.
Caballes, 543 U.S. at 407).
U determining whether detention has been unreasonably prolonged, courts have indicated
that the reasonableness of an ofcer's action depends on his diligence in accomplishing the puoses
of a lawful stop; "diligence is not present where the police offcer 'defnitively abandoned the
prosecution of the trafc stop and embarked on another sustained course of investigation' or where
the unrelated questions 'constituted the bulk of the interaction' between the police ofcer and the
defndant." United States v. Digiovanni, 650 F .3d 498, 508-509 (4th Cir. 2011) (citing United States
v. Everett, 601 F.3d 484, 495 (6th Cir. 2010)). However, de minimis delays in conducting a tafc
stop caused by unrelated questioning do not violate the Fourth Amendment. See Mason, 628 F.3d
at 132 (holding that a one to two minute delay caused by unrelated questioning did not raise a Fourth
Amendment issue).
Two recent decisions fom the Fourth Circuit provide additional guidance in determining
whether a stop has been unreasonably prolonged in violation of the Fourth Amendment. In United
States v. Digiovanni, a state trooper stopped the defndant fr a trafc violation, but rather than
completing a driver's license check or writing a ticket fr the traffc violation, the tooper proceeded
to question the defndant about dmgs fr approximately ten minutes. 650 F.3d at 509-510. Based
on his conduct, the Fourth Circuit held that the state trooper had unreaonably prolonged the trafc
stop because he did not diligently pursue the trafc violation. Id at 510. In reaching this conclusion,
the Fourth Circuit rejected the goverent's contention that the ten minute delay was de minimis and
that because the overall lengt of the trafc stop was reasonable, there was no Fourth Amendment
violation. !d at 510-511.
In contrast, in United States v. Guion-Ortiz, 660 F.3d 757 (4th Cir. 2011), the Fourth Circuit
fund no Fourth Amendment violation where an ofcer briefy prolonged a trafc stop in order to
verif the validit of a green card provided by the defndant, who was a passenger in the stopped
vehicle. The court held that the offcer had demonstrated diligence HI several reasons. First, the
cou fund that "calling ICE to inquire into the validity of the [green card] is analogous in many
ways to how an offcer routinely runs a driver's license and registration to check their validity." !d
at 7 69. Second, the court noted that the phone call was extremely brief and did not demonstrate that
the offcer had "defnitively abandoned the prosecution of the traffc stop and embarked on another
sustained course of investigation." dThird, the court fund that the initial purpose Htthe stop was
"still alive" because the ofcer had initially stopped the vehicle to determine whether the driver had
been drinking, and the offcer had not yet assured himself that the driver was not under the infuence
of alcohol. Id Fourth, the call to ICE was "a single, brief detour fom an otherwise diligent
investigation into whether the driver was impaired." d Nevereless, the Fourth Circuit
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comucthdUmOuSlmIcddcDultVc8O8udO0mcmOlIhcSulUnOlIcliBCSlO. 8l.
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defndant's green card simply because the investigation did not require more time than an ordinar
trafc stop; rather, the fcus of the inquiry was on the diligence displayed by the ofcer. 0
. Suppression of Evidence Obtained in Violation of the Fifth Amendment
The BIA has held that, with or without a voluntariness issue, cases may arise where the
manner of acquisition of the evidence is so egregious that to rely on the evidence would violate the
due process clause of the Fifh Amendment and tat in such cases the evidence should be excluded.
Matter ofToro, 17 l&N Dec. 340 (BIA 1980). However, the burden is on the respondent to establish
aprimafacie case befre DHS will be called upon to assue the burden of justifing the manner in
which it obtained the evidence. Matter ofBurgos, 15 I&N Dec. 278 (BIA 1975); Matter ofWong,
13 I&N Dec. 820 (BIA 1971 ). If an afdavit is submitted such that the fcts alleged, if true, could
support a basis fr excluding the evidence in question, then the claims must also be supported by
testimony. Matter ofBarcenas, 19 l&N Dec. 609 (BIA 1988). Violation of a regulator requirement
by a DRS ofcer can result in evidence being excluded where the regulation serves to beneft the
alien and the violation prejudiced interests of the alien tat were protected by the regulations. Matter
ofGarcia-Flores, 17 l&N Dec. 325 (BIA 1980). Even in such circumstances, however, the BIA has
made clear that corrective action short of termination of proceedings should be taen wherever
possible. Matter ofHernandez, 21 I&N Dec. 224, 228 (BIA 1996).
C. Suppression of Evidence Obtained by Government Ofcials Outside of the DRS
Even where a goverent ofcial ha obtained evidence unlawlly, that evidence will not
necessaily be excluded fom every proceeding in which it is relevant. See, e.g. , United States v.
Janis, 428 U.S. 433 (1976). Courts have identifed two situations m which the exclusionary rule
applies to prevent one party fom using evidence unlawflly obtained by aother paty: (!)cases
where the "zone of primary interest" of the ofending offcial included the proceeding at issue; and
(2) cases where an offcial fom the agency bringing proceedings participated in the unlawfl seach
or seizure.
ZeneefPrimaryInterest
Because the fcus of the exclusionar rule is to deter ftre unlawfl conduct, in order to
decide whether illegally obtained evidence should be excluded in a paticular proceeding, courts
must determine whether the likelihood of deterrence outweighs the social costs of exclusion. See
Lopez-Mendoza, 468 U.S. at 1041. To gauge whether exclusion is likely to deter fture Fourth
Amendment violations, a court should examine the motivations of the ofending ofcer ad
determine whether the proceeding at issue was within his "zone of primary interest." See Janis, 428
U.S. at 458. H other words, te court must consider whether the ofending offcer acted with the
QuCScof obtag cd0nCctuctuUcpmcmg55uc. See d
Applyng these considertions, the Supreme Court held in J2nlJthat evidence obtained by
a Sl3c DD 8W cl Dct ID Yl0l310B 0 !Ic tOu 7DcDdmctII Muu B0l D
cXCuc0HmRdmCIVIQfOcCIDg5.d MJ. AIthoQJasmudMlhc6XCUDmOc
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had been applied m federal civil proceedings in many instances, the Cour observed that "[t]he
seminal cases that apply the exclusionary rule to a civil proceeding involve 'intrasovereign'
violations, a situation we need not consider here."/d at 456.
2
The Court went on to reason tat state
criminal law enfrcement ofcers are generally fcused on obtaining evidence fr criminal
proceedings, and because evidence obtained by a state criminal offcer in violation of the Fouh
Amendment canot be used in any criminal proceeding, state or fderal, state ofcers ae already
deterred fom engaging in Fourh Amendment violations. Id. at 448. As a result, the Court fund that
excluding evidence obtained by a state criminal offcer fom Janis's fderal civil tax proceeding was
"unlikely to provide signifcat, much less substantial, additional deterrence." Id. at 458.
In determining whether intrasovereign violations of the Fouth Amendment justif the
application of the exclusionay rule, fderal courts of appeals have identifed diferent fctors that
may be relevant, including: (1) whether a proceeding is civil or criminal; (2) whether the ofending
ofcer and the prosecutig ofcial are members of the same agency; (3) whether tere is an
agreement between agencies, explicit or implicit, to share infrmation; (4) the existence of a
statutory regime in which agencies share resources; and (5) the relationship between the ofending
ofcer's expertise ad the nature of the proceeding where evidence has been ofered. See, e. g. , Wol
v. Commissioner, 13 F.3d 189, 194-95 (6th Cir. 1993). However, the primary fcus of the inquir
remans on wheter the proceeding at issue is within the "zone of primary interest" fr the ofending
offcia. See, e.g. , Grimes v. Commissioner, 82 F.3d 286, 290 (9th Cir. 1996); Tirado v.
Commissioner, 689 F.2d 307, 311 (2d Cir. 1982); Wol 13 F.3d at 193. Indeed, the Second Circuit
has stated that even afer Janis, evidence obtained as a result of an intersovereign violation still may
be suppressible in civil proceedings if those civil proceedings fll within the zone of primary interest
fr the ofending ofcer. Tirado, 689 F.2d at 313.
i| ActualParticiatien
Evidence obtained in violation of the Fourth Amendment by ay party, prvate or public, may
also be suppressed if an ofcial fom the agency seeking to use evidence paricipated substantially
in the unlawfl search or seizure that brought the evidence to light. See, e.g. , Lustig v. United States,
338 U.S. 74 (1949); Byars v. United States, 273 U.S. 28 (1927). Although more than "mere
participation" is required, Byars, 273 U.S. at 32, "a search is a seach by [an] ofcial ifhe had a hand
in it," Lustig, 338 U.S. at 79, and if substantial participation is evident, "the efect is the same as
thoug [te offcial] had engaged in the undertaking as one exclusively his own." Byars, 273 U.S.
at 33. Moreover, "[i]t is immaterial whether [an] agent originated the idea or joined in it while the
2
Later, in Lopez-Mendoza, the Cour fund that the exclusionary rule does not generally apply in civil
imigation proceedngs, notithstandin the mtrasoverein nate of the violations aIIeed. 468 U.S. at !050.
JhcCour ackowledged that may fctors, including "intovereign" volauons,suggested |ha|te deterrence
wolqp|ymmm|cndepmmapwoudbhqmiaJu,hOwvcr m
cts mmgncmcad|maIdmcthalmqtthmagIytngmccxcasronmjmlc.IJ a l02-J0.
Icvck _ a duu-.a, pur>g oIlbcLounspstclImsapress|oam|g:tbwmkdncIviI
immigration proceedings based on "egregious violations of Fourh Amendmentor other liberies that might
unsgssncnmsoImudamcnmImmcand undcnnncthcprobatvcvalucothcevidence obtained." !d a I05!.
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search was in progress. So long as he was in it befre the object of the search was completely
accomplished, he must be deemed to have paticipated in it." Lustig, 338 U.S. at 79. This is the case
even if: ( 1 ) the ofcer did not request the search; (2) the offcer was not the moving frce of the
search; and (3) the other individuals participating in the seach were not motivated by a desire to
enfrce the law of the agency fr which the ofcer worked. Id. at 78.
In determining whether an ofcial has substantially participated in a seach, "[t]he decisive
fctor ... is the actuality of a share by the fderal ofcial in the total enterprise of securing and
selecting evidence by other than sanctioned means." Id at 79. If an ofcial acted as an exper and
had "a vital share in sifing the evidence as the search proceeded" he has substantially participated
in the search. Id.
V. Findings of the Court
The Court has careflly considered the testimony and evidence presented, as well as the
witten arguments presented by both parties. Based on the fllowing fndings, the Court concludes
that the Respondent has made aprimafacie case that suppression is waanted in these proceedings
and that the DRS has filed to justif the manner in which the evidence was obtained. As a result,
the Court will suppress the evidence obtained as a result of the Respondent's arrest on March 31,
2010 and will terminate these proceedings.
As an initial matter, the Court fnds that the Respondent testifed credibly. His testimony was
detailed, plausible, responsive, and internally consistent. Indeed, the Respondent candidly
acknowledged fcts that could be considered detrimental to his case. Nor did the DRS present any
testimony or evidence that would undermine his credibility. As a result, the Court concludes that the
Respondent is a credible witness.
The Respondent's testimony serves to afrm the Court's previous fnding that the
Respondent has made a prima facie case that suppression is warranted in these proceedings. First,
the preponderance of the evidence suggests that the NSA ofcers who aested him on March 3 1 ,
2010 uneasonably prolonged his stop in violation of the Fourh Amendment. See Mason, 628 F.3d
at 132. Although the Respondent concedes that his initial stop was lawfl, it appeas that the NSA
ofcers did not pursue diligently te traffc stop and instead chose to embark on a paralel
investigation into the Respondent's immigration status. See Gui on-Ortiz, 660 F .3d at 770
(emphasizing that an ofcer who lawflly stops an individual fr one purpose but abandons the
prosecution of the stop to investigate a diferent potential violation has uneasonably prolonged the
stop). Afer the Respondent provided his driver's license, the NSA ofcer lef with the license and
did not retur fr twent or twenty-fve minutes. When the offcer retued, he did not ask any
questions about the Respondent's traffc violation or even mention the possibilit that the
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trafc violation "constituted the bulk of the interaction" between him and the NSA ofcers. See
Digiovanni, 650 F.3d at 508-09. Furthermore, the offcers had all the infrmation they needed to
prosecute the Respondent fr his traffc violation as soon as they stopped him, and as a result the
initial puose fr the Respondent's stop was not "still alive" when they questioned him about his
immigration status twenty to twenty-fve minutes later. Cf Guion-Ortiz, 660 F. 3d at 769.
The fcts in this case indicate that the Respondent' s stop was unreasonably prolonged. In
order to prosecute the trafc violation, the NSA ofcers could reasonably have spent time writing
a citation; however, in this case they did not do so until around 5: 00 pm, fur hours afer the trafc
stop. The ofcers could also reasonably have spent time checking the Respondent's driver's license
and the identifcation provided by his fiend, as well as checkng fr any outstanding warrats. It is
highly improbable that this process required twenty to twent-fve minutes, and DHS has ofered no
evidence to indicate that in this case it did or even might take that long. Law enfrcement ofcials
complete such checks fequently in the course of their daily duties, and as a result te process must,
by necessity, be expeditious. For instance, in Digiovannig the process of checking a driver's license
and checking fr outstanding warants took less than fve minutes. See 650 F.3d at 504. Similarly,
in Guion-Ortiz, the police ofcer was able to determine "[w]ithin 30 seconds" that no warants were
outstanding fr three individuals. 660 F. 3d at 759. Indeed, the Respondent's ow observations
suggest that the NSA ofcers were able to check licenses quickly fr the other drivers who
mistakenly came to the gatehouse; he saw cars come to the gatehouse about once every ten minutes,
and the drivers were not stopped fr any signifcant amount of time. Based on the length of time the
ofcers spent in the gatehouse befre retuing to ask the Respondent questions about his
immigration status, the Respondent's stop was umeasonably prolonged by at least twenty to twent
fve minutes, in violation of the Four Amendment. See Digiovanni, 650 FJd at 5 1 0- 1 1 (holding
that ten minute delay was not de minimis and constituted a Fourth Amendment violation).
The Court recognizes that afer questioning the Respondent about his immigration status, the
NSA offcer may have established reasonable suspicion that the Respondent had violated U. S.
immigration law, and at that point, the offcer may have been justifed in prolonging the stop briefy
in order to investigate frther. See, e. g. , Terry v. Ohio, 392 U. S. ( 1 968). Indeed, based on the
Respondent's answers, the NSA ofcer may have had probable cause to detain the Respondent fr
a possible violation of criminal immigration law. See id. However, there is no indication that the
ofcer had reasonable suspicion that the Respondent had violated immigration law befre he went
to te gatehouse with the Respondent's license. Moreover, it appears that he abandoned prosecution
of the Respondent's traffc stop while he attempted to establish reasonable suspicion of a
immigration violation. As a result, even if the ofcer established probable cause to believe that the
Respondent had violated immigration law twenty or twenty-fve minutes into the stop, it would not
serve to justif the unreasonable prolongation of the Respondent's stop up to that point. As a result,
the Court concludes that the Respondent has established a prima facie case that his Fourth
Amendent DghL we VO8ICO.
JCLOuNlSOfnds lh8l|hO OuH Amendment Vl0dIl0Ddescrbed by the Respndent w<
Uu5 DuS I was 0d 50cl) O nR. LtULuc2l cru J .d BI ! 4J;
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prolonged so that the NSA offcers could inquire into his immigration status. While he was detained,
twenty other drivers commited the same tafc violation that he had committed, and only one other
driver, who was also Hispanic, was questioned regarding imigration status. White and black
drivers were stopped briefy but were allowed to pass, and no other driver received a citation fr
ting into the NSA fcilit. Although the DHS suggested that the other drivers may have come to
the NSA fcility puoseflly, it is implausible that a diver who intended to visit the NSA would
simply tum around and leave immediately afer arrival, witout going inside the fcility. The
Respondent acknowledged that one Hispanic man was able to tum around at the gatehouse witout
issue; nonetheless, the weight of the evidence indicates that the NSA offcers prolonged the
Respondent' s stop solely on the basis of his race. Such egegious malfasance merits suppression
even in civil removal proceedings, where the exclusiona rule generally does not apply. See Lopez
Mendoza, 468 U. S. at 1 05 1 .
Last, the Respondent has made a prima facie case that suppression is appropriate
notwithstanding the fct that the NSA, not the DHS, stopped te Respondent. Suppression of
evidence obtained by the NSA is proper either ( 1 ) if the "zone of prima interest" of the NSA
ofcers included the Respondent' s removal proceedings, or (2) i f ay DRS ofcial paricipated in
the Respondent' s unlawfl seizure. See, e.g., Janis, 428 U. S. at 458; Lustig, 338 U.S. at 79.
The testimony ad evidence presented indicates that civil immigration proceedings were
within the "zone of prima interest" of the NSA offcers who stopped and questioned the
Respondent. See Janis, 428 U. S. at 458; see also Grimes, 82 F. 3d at 290; Tirado, 689 F. 2d at 3 1 1 ;
Wol 1 3 F. 3d at 1 93. Notably, an unlawfl search or seizure by the NSA would be an "intrasovereign
violation" fr purposes of these proceedings. See Janis, 428 U. S. at 456. Furhermore, although the
NSA and ICE are not pa of the same agency, cf Wol 1 3 F . 3d at 1 94, there are numerous indicators
that suggest that the NSA ofcers who arrested the Respondent were fcused on obtaining evidence
fr immigration proceedings. As noted above, rather than expeditiously completing the Respondent' s
trac stop, the offcers engaged i n a prolonged inquiry into the immigration status of the
Respondent and his passengers. The evidence does not indicate, nor has the DHS suggested, that the
ofcers sought to obtain evidence regarding the Respondent' s immigration status fr some other
proceeding. Cf Janis, 428 U. S. at 448. It does not appear that any other proceedings have been
brought against the Respondent or his passengers based on the NSA stop. Moreover, it is evident that
the NSA ofcers initiated contact with ICE and detained the Respondent ad his passengers until
ICE ofcials arived. The NSA ofcers never mentioned the Respondent' s tafc violation during
the fur hours he was detained; rather, tey questioned the Respondent exclusively about his
immigration status. They then told the Respondent and his fiends that they were being "sent home. "
Taken cumulatively, all of these fctors indicate that immigration proceedings were the prima, if
not sole, interest of the NSA offcials who ar ested the Respondent. As a result, suppression of
evidence in tese proceedings would likely serve to deter these offcials fom fture misconduct. See
JulS, +Z \. b. 0I 458. Ju5, OV0D no Lb UCu "had 8 hDd u the m8W actions Uthe
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that they did so based solely on his race, rendering the violation "egregious; " and that civil
imigation proceedings were within their "zone of primary interest. " As a result, the burden shifs
to the DHS to "justify] the maner in which it obtained the evidence. " Matter ofBarcenas, 19 I&N
Dec. at 611. Affdavits or testimony fom the NSA ofcers, call logs fom the NSA gatehouse, or
other evidence might have undercut the Respondent' s claims; however, the DHS has presented no
evidence, testimonial or otherwise, regarding the Respondent' s arrest and detention.3 Nor has the
DHS demonstrated that it attempted to obtain such evidence. Based on the record, the Court cannot
fnd that the DHS has justifed the maner in which its evidence was obtained.
Finally, the DHS maintains that documents obtained fom the Maryland Motor Vehicle
Adminstration, including the Respondent's application fr a driver' s license, qualif as
independently obtained evidence of his alienage. See, e. g. , Matter ofCervantes-Torres, Z I&N Dec.
at 353; Matter ofVelasquez, 19 l&N Dec. at 380. However, the Court is not persuaded. The general
rule is that all evidence fowing fom an unlawfl arrest is suppressible unless the conection
between the two has "become so attenuated as to dissipate the taint." Wong Sun v. United States, 3 71
U.S. at 491 . Evidence obtained fom a truly independent souce may be considered so that
prosecutors are lef "in the same, not a worse, position that they would have been in if no police error
or misconduct had occured." Murray v. United States, 487 U.S. at 53 7. However, it remains the case
that a prosecutor canot beneft fom evidence obtained a a result of an unlawfl search. Id. For
instance, in Murray v. United States, police ofcers obsered drugs in a private warehouse as a result
of their unlawf, warrantless entr and subsequently sought a warrant. Id. The Supreme Cour held
that a search conducted pursuant to the warrant would not qualif as "a genuinely independent
source" of evidence "if the agents' decision to seek the warrant was prompted by what they had seen
during the initial entry, or if infrmation obtained during that entry was presented to te Magistrate
and afected his decision to issue the warrant. " 0. at 542.
In this case, the DHS decision to seek the Respondent' s MVA records "was prompted by"
the unlawfl observations of the NSA offcials. See id. As a result, allowing the DHS to rely on the
MVA records would leave the DHS in a better position as a result of the unlawfl conduct of the
NSA ofcers. See id. at 53 7. The conection between the MV A records and the ulawfl conduct
of the NSA offcers is not "so attenuated as to dissipate the taint," and the Court therefre concludes
that the MVA records must be suppressed. 4 See Wong Sun v. Unile0States, 371 U.S. at 491.
3
The DHS maintains that the Respondent's taffc stop "may well have been wan-anted" based on "the
security requirements of a fcility such as NSA . . . . " However, the DHS has not submitted an afdavit or any other
evidence to suggest that the prolongation of the Respondent's traffc stop was related in any way to NSA security
requirements. Likewise, DHS has cited to no statutor, regulatory, or subreglatory authority that would permit the
NSA ofcers' conduct on security related grounds. The Cour's independent research has not uncovered any such
authority.
4
The suppression ofcvdcnccwhichwas in govcmmcnthandsprortoan un|awI scarch butwhich would
n"m Iigucia rmof .L d .Zlm C
ganted ceriorari in a case that preentedprecisery this fssue; however, the ease was subsequently dismissed as
mpvdlyglcd.5P9` !mcnIin\ !4 N.Y.JdJK(H.Y. 20 l 0] (-J'. mnt::dsufM T~rmJ.
Hcu Iork, I J I.LI. (20| 0),cert. dismised I iienll' granted J J J S. Ct. 1 381 (201 J ). Nordoct
appear that the fourh Circuit ha addresed this issue. Absent fuher guidance or binding preLedent,the Cour fnds
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In sum, the Respondent' s testimony and afdavits establish a prima facie case that NSA
offcers violated his Fourth Amendment rights based solely on his race in an efort to obtain evidence
fr the DHS to use in immigration proceedings. Nor ha the DHS presented evidence to justif the
conduct of the NSA ofcers. As a result, all evidence obtained as a result of their search i s
suppressible. Furthermore, the DHS has not presented genuinely independent evidence of the
Respondent' s alienage. Because the evidence on which the DHS seeks to rely is subject to
suppression, these proceedings will be terminated with prejudice. See Mater ofGarcia, 17 I&N Dec.
3 V(BIA 1 980).
VI. Order
It is ordered that the Respondent' s Motion to Suppress and Terminate is hereby granted.
These proceedings ae terminated with prejudice.
Date: July 2, 201 2 Elizabt A. Kessler
United States Immigration Judge
fr resons provided above that evidence may be suppre ed if it wa ucovered soJeJy due t unJawfJ goverent
conduct, even if ii was ngoverment hands befre the iJlegar act.
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