               Case: 16-16117      Date Filed: 08/23/2018      Page: 1 of 17


                                                                    [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 16-16117
                              ________________________

                               Agency No. A205-854-783



JOSE OSBALDO BATRES-GARAY,

                                                                                 Petitioner,
                                           versus

U.S. ATTORNEY GENERAL,

                                                                               Respondent.

                              ________________________

                        Petition for Review of a Decision of the
                             Board of Immigration Appeals
                              _______________________

                                    (August 23, 2018)

Before WILLIAM PRYOR and MARTIN, Circuit Judges, and WOOD, * District
Judge.

PER CURIAM:




*
 Honorable Lisa Godbey Wood, United States District Judge for the Southern District of
Georgia, sitting by designation.
              Case: 16-16117     Date Filed: 08/23/2018   Page: 2 of 17


      This petition for review of a decision of the Board of Immigration Appeals

requires us to decide whether the Board erred when it denied Jose Osbaldo Batres-

Garay’s motion to suppress evidence of his alienage without an evidentiary hearing

and to terminate his removal proceedings. Batres, a native and citizen of El

Salvador, declared that officers lacked consent when they entered the apartment

that he shared with his brother’s family around 5:30 a.m. The immigration judge

disregarded Batres’s description of the officers’ entry because he failed to state that

he had firsthand knowledge of it, and the immigration judge ruled that Batres was

not entitled to an evidentiary hearing on his motion to suppress. The immigration

judge then ordered Batres removed from the United States. The Board later

dismissed Batres’s appeal. Batres contends that he established a prima facie case

that the officers violated the Fourth and Fifth Amendments and several federal

regulations. We deny Batres’s petition in part and dismiss it in part.

                                I. BACKGROUND

      Deportation officers of Broward County Fugitive Operations apprehended

Jose Osbaldo Batres-Garay, a citizen of El Salvador who had not been admitted,

inspected, or paroled into the United States, when the officers searched the

apartment where Batres lived with his brother’s family. While Batres was sleeping

around 5:30 a.m., he was “awakened by loud voices outside [of their] apartment.”

Batres “did not pay attention” or “get ou[t] of [his] bed.” He heard knocks on the



                                           2
              Case: 16-16117     Date Filed: 08/23/2018    Page: 3 of 17


door, but still remained in bed. Officers then entered the bedroom where Batres

“was sleeping . . . without . . . knocking on [his] door[,] yelled at him[,] and told

[him] to get up and that [he] was under arrest.” The officers “pulled [Batres] out of

[his] bed wearing only [his] underwear,” refused to allow him to get dressed, and

brought him into the living room. After an officer “demand[ed]” Batres’s

identification, he told them that his passport was in the car, and Batres’s sister-in-

law and one of the officers went to obtain it. The officers remained in the

apartment for about 30 to 45 minutes after they told Batres that he was under

arrest. They then left without taking Batres or his relatives anywhere.

      Agent A. Arman, one of the officers, submitted a Form I-213, Record of

Deportable/Inadmissible Alien, after his encounter with Batres. On that form, he

stated that Batres was a citizen of El Salvador who had “not [been] admitted,

inspected, or paroled into the United States by a[n] . . . [i]mmigration [o]fficial”

and described his encounter with Batres. He stated that he and other deportation

officers “apprehended” Batres during the search of an apartment for another

person. And he stated that he witnessed Batres’s sister-in-law give consent to enter

the apartment to another deportation officer.

      Batres filed a motion to suppress the Form I-213 and to terminate the

removal proceedings. He argued that the government obtained the evidence of his

alienage in the Form I-213 in violation of the Fourth and Fifth Amendments and in



                                           3
              Case: 16-16117     Date Filed: 08/23/2018   Page: 4 of 17


violation of federal regulations. In support of his motion to suppress, Batres

submitted a declaration in which he described his encounter with the deportation

officers. Batres stated both that he had “personal knowledge of the facts [in the

declaration]” and that the facts in the declaration were “true and correct to the best

of [his] knowledge, information, and belief.”

      In his declaration, Batres described the officers’ entry into his bedroom and

their questioning of him, but he also detailed how the officers entered the

apartment while he remained in his bedroom. He stated that his brother and sister-

in-law got out of their bed in another room. His “brother looked outside the

window” and saw “approximately seven or eight armed individuals.” Batres

explained that he “was surprised that someone was at [their] door so early but

stayed in bed and let [his] brother deal with the unexpected visitor at such an early

hour.” When Batres’s brother and sister-in-law went to the front door, his brother

“cracked the door open” and “one of the officers st[u]ck his foot [i]n the door,

pushed it open[,] and entered [the] home.” The officers asked Batres’s brother and

sister-in-law for their identification and “whether there were other people in the

home.”

      The immigration judge denied Batres’s motion. The immigration judge

reasoned that “[o]nly an egregious violation of the Fourth Amendment or other

liberties that might transgress notions of fundamental fairness or undermine the



                                           4
              Case: 16-16117    Date Filed: 08/23/2018    Page: 5 of 17


probative value of the evidence will trigger suppression in a civil [i]mmigration

proceeding.” And the immigration judge explained that Batres was required to

“present a prima facie case” of an egregious violation “[t]o obtain a suppression

hearing.” The immigration judge also explained that “[a]bsent evidence that a

Form I-213 contains information that is incorrect or was obtained by coercion or

duress, that document is considered inherently trustworthy and admissible as

evidence to prove alienage or deportability.” The immigration judge explained that

Batres “did not personally see the officer force his way into the home,” which

meant that Batres failed to make “a prima facie showing that the officers entered

the home without consent.” The immigration judge also explained that Batres

failed to “show[] that the officers threatened, coerced, or physically abused the

respondent in order to obtain his passport” and that he “failed to present evidence

of coercion or duress that might suggest his statement was not voluntary.” The

immigration judge ruled that “[t]he respondent’s affidavit does not overcome the

presumption of reliability typically afforded the Form I-213.”

      The immigration judge ordered Batres removed to El Salvador. The

immigration judge found that Batress was unlawfully present in the United States,

and the immigration judge determined that “the Form I-213 establishes that the

respondent is removable by evidence that is clear and convincing.”




                                          5
              Case: 16-16117     Date Filed: 08/23/2018    Page: 6 of 17


      The Board dismissed Batres’s appeal. It reasoned that, even when evidence

is obtained in violation of the Fourth Amendment, the evidence is admissible in

immigration proceedings unless that violation was an “egregious violation[] where

the use of the evidence would constitute a violation of due process.” It “f[ou]nd no

clear error with the [i]mmigration [j]udge’s finding that the record does not reveal

coercion on the part of immigration officials.” It affirmed the immigration judge’s

“finding[s]” that “(1) the respondent’s brief questioning in his home was standard

procedure, (2) the respondent volunteered that his passport was in the car and his

sister-in-law retrieved it, and (3) the respondent did not witness the officer’s entry

into the home because he remained in his room until the officers entered his

bedroom.” “Based on these properly found facts,” the Board concluded that “the

use of this evidence was not fundamentally unfair.” And the Board concluded that,

even if it assumed that the officers violated the Fourth Amendment when they

obtained the evidence of Batres’s alienage, the violation was not egregious. It also

ruled that “the [i]mmigration [j]udge did not violate [Batres’s] Fifth Amendment

right to due process.” And it rejected Batres’s arguments that the officers violated

federal regulations.

                          II. STANDARD OF REVIEW

      “We review the decision of the Board and ‘the decision of the Immigration

Judge to the extent that the Board expressly adopted the opinion of the



                                           6
              Case: 16-16117     Date Filed: 08/23/2018   Page: 7 of 17


Immigration Judge.’” Ayala v. U.S. Att’y Gen., 605 F.3d 941, 947–48 (11th Cir.

2010) (quoting Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir.

2009)). “We review legal conclusions de novo, but our review of . . . factual

findings is ‘limited’ by ‘the highly deferential substantial evidence test.’” Sama v.

U.S. Att’y Gen., 887 F.3d 1225, 1231 (11th Cir. 2018) (quoting Silva v. U.S. Att’y

Gen., 448 F.3d 1229, 1236–37 (11th Cir. 2006)).

                                 III. DISCUSSION

      Batres makes four arguments. First, Batres argues that the Board should

have considered the portion of his declaration in which he described how the

officers entered the apartment without consent. Second, he contends that his

declaration established a prima facie case of an egregious violation of the Fourth

Amendment that entitled him to a suppression hearing. Third, he contends that his

declaration also established a prima facie violation of the Fifth Amendment.

Fourth, he contends that the officers violated federal regulations and that his

removal proceedings should have been terminated. These arguments fail.

   A. The Immigration Judge Did Not Err by Excluding Batres’s Description of
                   Events that He Did Not Personally Observe.
      Batres contends that the immigration judge erred by disregarding the part of

his declaration in which he described how the officers allegedly entered the

apartment without consent, but we disagree. The Board requires that, to receive an

evidentiary hearing on a motion to suppress evidence, an individual bears the


                                          7
              Case: 16-16117     Date Filed: 08/23/2018     Page: 8 of 17


burden to “establish[] a prima facie case” with “the sworn statement of persons

having personal knowledge of the facts.” Matter of Tang, 13 I. & N. Dec. 691, 692

(BIA 1971) (citation and quotation marks omitted). Only after the individual

satisfies his burden to establish a prima facie case of a violation, “will [the

government] be called upon to assume the burden of justifying the manner in

which it obtained its evidence.” Id. But Batres lacked personal knowledge about

how the officers entered the apartment because he was in another room when they

entered. Batres declared that his brother and sister-in-law answered the door when

the officers arrived and that, when his brother “cracked the door open,” one of the

officers pushed his way into the apartment even though, according to his

declaration, Batres remained in his bed in another room.

      Batres argues that “personal knowledge is distinct[] from—and broader

than—personal observation,” but we disagree. “[P]ersonal knowledge” is

“[k]nowledge gained through firsthand observation or experience, as distinguished

from a belief based on what someone else has said.” Personal Knowledge, Black’s

Law Dictionary 951 (9th ed. 2004). Indeed, Garner’s Dictionary of Legal Usage

contrasts “personal knowledge” with “information” and “knowledge” by

explaining that “[p]ersonal knowledge denotes much more narrowly a fact or

cluster of facts acquired by firsthand observation of or participation in events being

inquired into, coupled with a credible degree of recollection.” Knowledge,



                                           8
              Case: 16-16117     Date Filed: 08/23/2018    Page: 9 of 17


Garner’s Dictionary of Legal Usage 512 (3d ed. 2011) (emphasis added) (italics

omitted). Batres concedes that his declaration “contains information from others”

and that he did not personally observe the officers enter the apartment or

participate in any effort to bar their entry. And we reject his contention that he can

satisfy the requirement of personal knowledge “based on what someone else has

said.” Personal Knowledge, Black’s Law Dictionary, supra, at 951.

      To be sure, as Batres points out, “[h]earsay evidence is admissible in

immigration proceedings ‘if it is probative and its use is not fundamentally unfair

so as to deprive the alien of due process.’” Matter of Vides Casanova, 26 I. & N.

Dec. 494, 499 (BIA 2015) (alteration adopted) (quoting Cortez v. U.S. Att’y Gen.,

446 F. App’x 166, 168 (11th Cir. 2011)). But Batres conflates what kind of

evidence is required to obtain a hearing for a motion to supress with what kind of

evidence is later admissible at a removal hearing. Personal knowledge is required

to make a prima facie case for a hearing on a motion to suppress. Matter of Tang,

13 I. & N. Dec. at 692. And Batres points to no decision where the Board has

defined the term “personal knowledge” to include information based on hearsay.

The immigration judge was entitled to disregard Batres’s description of how the

officers entered the apartment and instead to credit the account in the Form I-213,

in which a deportation officer stated that Batres’s sister-in-law gave the officers




                                           9
             Case: 16-16117     Date Filed: 08/23/2018    Page: 10 of 17


consent to enter. Batres could have, but did not, submit declarations from his

brother or sister-in-law to contradict that account.

    B. The Board Did Not Err when It Refused to Suppress the Form I-213 as
                 Obtained in Violation of the Fourth Amendment.
      Batres contends that he is entitled to a suppression hearing to determine

whether the officers violated the Fourth Amendment and whether the evidence of

his alienage in the Form I-213 should be excluded as a consequence. He contends

that his declaration established a prima facie case that the officers egregiously

violated the Fourth Amendment because they conducted a search of his home

before dawn and without consent. He also contends that we should hold that any

violation of the Fourth Amendment leads to the exclusion of evidence in removal

proceedings. We reject these arguments.

      Ordinarily, evidence obtained in violation of the Fourth Amendment is

admissible in civil immigration proceedings, Immigration & Naturalization Serv.

v. Lopez-Mendoza, 468 U.S. 1032, 1034 (1984), but four justices suggested, and

other circuits have held, that there may be an exception to this rule for “egregious

violations of Fourth Amendment or other liberties that might transgress notions of

fundamental fairness and undermine the probative value of the evidence obtained,

id. at 1050–51 (opinion of O’Connor, J.); see also, e.g., Yanez-Marquez v. Lynch,

789 F.3d 434, 449–50 (4th Cir. 2015) (collecting citations); Cotzojay v. Holder,

725 F.3d 172, 179–80 (2d Cir. 2013). We have not addressed the question whether


                                          10
              Case: 16-16117     Date Filed: 08/23/2018     Page: 11 of 17


evidence of alienage obtained from an egregious violation of the Fourth

Amendment must be excluded from removal proceedings, and we need not decide

it now because Batres failed to make a prima facie showing of an egregious

violation of the Fourth Amendment.

      Batres’s declaration failed to establish an “egregious violation of Fourth

Amendment . . . liberties that might transgress notions of fundamental fairness and

undermine the probative value of the evidence obtained.” Lopez-Mendoza, 468

U.S. at 1050–51 (opinion of O’Connor, J.). He contends that the officers

egregiously violated the Fourth Amendment primarily because they entered his

home at 5:30 a.m. without consent. But as explained earlier, the immigration judge

and the Board were entitled to find that the officers received consent from Batres’s

sister-in-law to enter the apartment. Because he failed to make a prima facie case

that the officers lacked consent to enter the apartment, Batres cannot establish that

the officers egregiously violated the Fourth Amendment. Indeed, the Second

Circuit, in a decision on which Batres heavily relies, underscored that whether

officers obtained consent to enter a home is critical to determining whether officers

egregiously violated the Fourth Amendment. See Cotzojay, 725 F.3d at 183. That

circuit explained that its “assum[ption] that . . . [the] officers did not secure

voluntary consent to enter the [petitioner’s] home . . . effect[ed] the basic Fourth

Amendment violation that must underlie any egregious violation,” before it



                                           11
             Case: 16-16117      Date Filed: 08/23/2018    Page: 12 of 17


identified “certain aspects of the raid as alleged by [the petitioner] [that]

transform[ed] th[at] [assumed] constitutional transgression . . . into an egregious

Fourth Amendment violation.” Id.

      We also reject Batres’s argument that Lopez-Mendoza no longer binds us

and that whenever evidence is obtained in a violation of the Fourth Amendment,

egregious or otherwise, it should be excluded. He contends that we should “[t]ak[e]

into account the changes that have occurred in immigration enforcement since

Lopez-Mendoza” and reweigh the balance that the Supreme Court struck then. But

the Supreme Court has instructed us to “follow the case which directly controls,

leaving to [it] the prerogative of overruling its own decisions.” Rodriguez de

Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989). “Lower courts are

bound even by old and crumbling high-court precedent—until the high court itself

changes direction.” Bryan A. Garner, et al., The Law of Judicial Precedent 29

(2016). We continue to be bound by the holding of the Court in Lopez-Mendoza

that evidence obtained in violation of the Fourth Amendment is ordinarily

admissible in civil immigration proceedings.

       C. The Admission of the Form I-213 Did Not Violate the Due Process
                          Clause of the Fifth Amendment.
      Batres contends that the Form I-213 should be suppressed because the

officers “created a coercive environment that led to . . . Batres involuntarily

providing information about his alienage” in violation of the Due Process Clause


                                           12
               Case: 16-16117     Date Filed: 08/23/2018   Page: 13 of 17


of the Fifth Amendment. He relies on a decision of the First Circuit, where the

court held that “the use of [an involuntary] statement [of a petitioner] was a

violation of her due process rights as guaranteed by the Fifth Amendment.” Navia-

Duran v. Immigration & Naturalization Serv., 568 F.2d 803, 808 (1st Cir. 1977).

We disagree.

         Batres has failed to establish that he was coerced into providing evidence of

his alienage. We reject his argument that the facts described in his declaration are

more coercive than the facts described in Navia-Duran. Batres contends that we

should “tak[e] into account the time of day, the length of time that the interrogation

lasted, and the officers’ threats or ‘predictions’ of [his] fate.” But even if we were

to assume that these factors present in Navia-Duran supplied the governing

standard in our circuit, only one of them cuts in his favor. Although the officers

arrived before dawn, Batres was questioned for only about 30 to 45 minutes, and

nothing in the record establishes that the officers threatened Batres or predicted his

fate.

        D. The Board Did Not Err when It Refused to Suppress the Form I-213 as
                      Obtained in Violation of Federal Regulations.

         Batres argues that his removal proceedings should have been terminated

because the officers violated three regulations, 8 C.F.R. § 287.8(b)(2), (c)(2)(vii),

& (f)(2), and he contends that these violations caused him substantial prejudice.

We disagree.


                                           13
             Case: 16-16117     Date Filed: 08/23/2018    Page: 14 of 17


      We cannot consider Batres’s argument that the officers violated section

287.8(f)(2), which requires officers to obtain a warrant or consent before they enter

a home. Batres failed to raise this argument before the Board, and “we lack

jurisdiction to consider claims that have not been raised” there. Amaya-Artunduaga

v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (citation and internal

quotation marks omitted).

      We reject Batres’s arguments that his proceedings should have been

terminated because the officers allegedly violated two other regulations, sections

287.8(b)(2), which permits officers to “briefly detain” a person based on a

reasonable suspicion that a person is illegally present in the United States, and

287.8(c)(2)(vii), which prohibits “[t]he use of threats, coercion, or physical abuse

by the designated immigration officer to induce a suspect . . . to make a

statement . . . .” To be sure, the Board has concluded that when “a rule or

regulation [has been] promulgated at least in part to bestow a procedural or

substantive benefit on the individual” and is violated, Matter of Garcia-Flores, 17

I. & N. Dec. 325, 329 (BIA 1980), the violation “will . . . render subsequent

agency actions invalid,” id. at 328, when the violation caused prejudice to the

individual, id. at 329. But section 287.12 states that the regulations in part 287 only

“provide internal guidance on specific areas of law enforcement authority” and “do

not, are not intended to, shall not be construed to, and may not be relied upon to



                                          14
             Case: 16-16117     Date Filed: 08/23/2018   Page: 15 of 17


create any rights, substantive or procedural, enforceable at law by any party in any

matter, civil or criminal.” 8 C.F.R. § 287.12. So neither section 287.8(b)(2) nor

section 287.8(c)(2)(vii) creates a right that Batres could enforce through

suppression of evidence in his removal proceeding.

                                IV. CONCLUSION

      We DENY in part and DISMISS in part Batres’s petition.




                                         15
               Case: 16-16117        Date Filed: 08/23/2018       Page: 16 of 17


MARTIN, Circuit Judge, concurring in the judgment:

       I concur in the denial and dismissal of Mr. Batres’s petition by the majority.

I write separately to state my view that, as a rule, evidence obtained through

egregious violations of constitutional rights may properly be suppressed in removal

proceedings.

       In INS v. Lopez-Mendoza, eight justices of the U.S. Supreme Court

suggested that evidence obtained through egregious violations of constitutional

rights should be excluded in removal proceedings. See 468 U.S. 1032, 1034 n.aa1,

1050–51, 104 S. Ct. 3479, 3489; see also id. at 1051–52, 104 S. Ct. at 3490

(Brennan, J., dissenting); id. at 1060, 104 S. Ct. at 3494 (White, J., dissenting); id.

at 1060–61, 104 S. Ct. at 3494–95 (Marshall, J., dissenting); id. at 1061, 104 S. Ct.

at 3495 (Stevens, J., dissenting).1 A number of our sister Circuits have reached the

same conclusion about Lopez-Mendoza. Yanez-Marquez v. Lynch, 789 F.3d 434,

449–50 (4th Cir. 2015); Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 271–72 (3d Cir.

2012); Puc-Ruiz v. Holder, 629 F.3d 771, 778 n.2 (8th Cir. 2010); Gonzalez-

Rivera v. INS., 22 F.3d 1441, 1448 n.2 (9th Cir. 1994).

       It is true that the Supreme Court’s statement about egregious rights

violations is dicta, but “[w]e have consistently recognized that dicta from the


       1
          The majority says only four justices subscribed to this notion. Maj. Op. at 11. True,
four justices in the majority expressed this view. However, all four dissenters would have
applied the standard exclusionary rule to removal proceedings.


                                                16
              Case: 16-16117    Date Filed: 08/23/2018   Page: 17 of 17


Supreme Court is not something to be lightly cast aside.” F.E.B. Corp. v. United

States, 818 F.3d 681, 690 n.10 (11th Cir. 2016) (quotation omitted). In fact,

Supreme Court dicta is “of considerable persuasive value.” Id. (quotation

omitted).

      It is also noteworthy that no one involved in this litigation—neither the U.S.

Attorney General, nor the Board of Immigration Appeals, nor the Immigration

Judge—suggested the exclusionary rule is not available as a remedy in removal

proceedings for egregious violations of constitutional rights.

      The predawn arrival of Deportation Officers from the Broward County

Fugitive Squad Operations Unit at the house where Mr. Batres was staying, when

they were looking for another man, was no doubt frightening and unpleasant for

Mr. Batres and his brother’s family. However, applying the highly deferential

standard by which we must review these things, I agree with the majority that the

evidence obtained by those officers that morning is not subject to being

suppressed.




                                         17
