          United States Court of Appeals
                      For the First Circuit



No. 14-1185

                  MARIA LETICIA GARCIA-AGUILAR,

                           Petitioner,

                                v.

    LORETTA E. LYNCH, Attorney General of the United States,*

                           Respondent.



              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS



                              Before

                       Howard, Chief Judge,
                   Souter,** Associate Justice,
                    and Lipez, Circuit Judge.




     Anant K. Saraswat, with whom Mark C. Fleming and Wilmer Cutler
Pickering Hale and Dorr LLP were on brief, for petitioner.
     John W. Blakeley, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice,
Joyce R. Branda, Acting Assistant Attorney General, Civil
Division, Francis W. Fraser, Senior Litigation Counsel, and Jem C.

     *  Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as respondent.
     **  Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Sponzo, Trial Attorney, Office of Immigration Litigation, Civil
Division, on brief for respondent.
     Kevin P. Martin, Jamie A. Santos, and Goodwin Procter LLP on
brief for the Consulate General of México, amicus curiae in support
of petitioner.
     Melissa Crow, American Immigration Council, Kate Desormeau,
Omar C. Jadwat, American Civil Liberties Union Foundation
Immigrants' Rights Project, Matthew E. Price, Jenner & Block LLP,
Matthew R. Segal, and Adriana Lafaille on brief for American
Immigration Council, American Civil Liberties Union Foundation and
American Civil Liberties Union Foundation of Massachusetts, amici
curiae in support of petitioner.



                        November 25, 2015
            HOWARD, Chief Judge.        Acting on an alleged tip that

undocumented aliens were employed there, Immigration and Customs

Enforcement ("ICE") agents raided the Michael Bianco, Inc. factory

in New Bedford, Massachusetts.         Petitioner Marcia Garcia-Aguilar

was detained during that raid.          She argues that her arrest and

detention     involved    constitutional      violations      sufficiently

egregious to warrant the suppression of evidence introduced during

her subsequent removal proceedings.        Because we conclude that one

of those pieces of evidence -- Garcia's birth certificate -- was

not tainted by any alleged constitutional violations, and since

that birth certificate is sufficient to prove her alienage, we

deny the petition for review.

                                   I.

            The raid occurred at approximately 8:30 AM on March 6,

2007.   As ICE agents entered the factory, the factory's secretary

directed employees to remain in place.              Garcia states in an

affidavit   that   she   immediately    attempted    to   call   her    son's

babysitter, but that an ICE agent confiscated her cell phone.               She

attests that four ICE agents then approached a group of factory

workers, including Garcia.     When one of those workers attempted to

flee, an agent grabbed him, forced him to sit down, and handcuffed

him. Garcia states that she was thereafter handcuffed with plastic

ties and claims that she was asked for her name only after being

handcuffed.     Garcia   and   other    workers   were    escorted     to   the

                                 - 3 -
factory's cafeteria and photographed.     Later, the workers were

placed on a bus with blackened windows and driven ninety-five miles

to Fort Devens military base without being informed where they

were going.

          Once at Fort Devens, an ICE agent questioned Garcia.

The substance of that interview was memorialized in an I-213 Form,

a standard government form that documents biographical and factual

information about a deportable or inadmissible alien.     The I-213

Form states that Garcia is a Mexican citizen and paid a smuggler

to transport Garcia and her son to the United States in 2005.

          Two days later, on March 8, Garcia was transferred to

the Bristol County Correctional Facility.      That same day, the

Consul General of Mexico in Boston, Porfirio Muñoz-Ledo, sent a

fax to the director of ICE's Boston field office, Bruce Chadbourne.

Muñoz-Ledo included the Mexican birth certificates of Garcia and

her son with that fax.   In a cover letter he wrote:

               I would like to bring to your attention
          the case of Ms. Maria Leticia Garcia Aguilar,
          Mexican National . . . detained last Tuesday
          in New Bedford, Massachusetts, who has a 2
          year[] old child . . . .
               It is our understanding that Mrs. Garcia
          Aguilar has been housed at Devens with other
          Mexican Nationals detained during the Tuesday
          raid, but will remain under ICE Custody until
          an Immigration Court date be set.
               Since we were informed that Mrs. Maria
          Leticia Garcia Aguilar['s] child has been
          under [a neighbor's care], I will appreciate
          if you could check on the case and see [to]
          the possibility of releasing her under the

                               - 4 -
              conditions you consider appropriate, so Mrs.
              Garcia Aguilar could take care of her child
              while waiting for the decision of an
              Immigration Judge.

Garcia      was   released    after    five    days   at    the    Bristol      County

Correctional Facility.1

              Garcia was served with a Notice to Appear in removal

proceedings       while   detained    at    Fort   Devens.        Through    written

pleadings filed on October 30, 2007, Garcia denied the Notice to

Appear's factual allegations and denied removability as charged.

She later filed a motion to suppress the I-213 Form, arguing that

the statements contained therein were obtained in violation of her

Fourth and Fifth Amendment rights and governing DHS regulations.

An Immigration Judge ("IJ") orally denied the motion, but the

Bureau of Immigration Appeals ("BIA") remanded the matter for the

IJ    "to   clarify,      through    fact   finding,   what       occurred      during

[Garcia's] arrest."          On remand, Garcia testified before the IJ,

and   the    government      introduced     Garcia's       and    her   son's   birth

certificates.       When questioned about those birth certificates and

about her alienage, Garcia invoked her Fifth Amendment right to

remain silent.




       1Because we conclude that the government permissibly
introduced Garcia's birth certificate in her removal proceedings,
we do not canvass the full extent of Garcia's allegations about
her arrest and ensuing detention.
                                       - 5 -
          The      IJ   concluded       that    the     birth       certificate

"independently    established     [Garcia's]     identity     and    alienage"

regardless of whether she had "established egregious misconduct by

ICE officers" that would warrant suppression of her I-213 Form.

Nevertheless, the IJ further found that Garcia failed to establish

a prima facie case of egregious constitutional violations.                   The

BIA affirmed, primarily on the ground that Garcia had failed to

show egregious violations of her constitutional rights, but also

noted that "the DHS obtained [Garcia's] birth certificate and

independently confirmed her alienage and identity."             This petition

for review followed.

                                     II.

          Thirty    years   ago   the      Supreme    Court   held    that   the

exclusionary rule typically does not apply in civil deportation

proceedings.    See I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1042-50

(1984). In the Court's assessment, because there "is no convincing

indication" that applying the exclusionary rule "will contribute

materially" to deterring INS misconduct, the social costs of

extending the exclusionary rule to civil deportation proceedings

outweigh the benefits of applying the rule.            Id. at 1046.     At the

same time, the Court left open a "glimmer of hope of suppression."

Navarro-Chalan v. Ashcroft, 359 F.3d 19, 22 (1st Cir. 2004).                 The

Court suggested that suppression may be warranted where there have

been "egregious violations of Fourth Amendment or other liberties

                                    - 6 -
that       might   transgress    notions      of   fundamental      fairness   and

undermine the probative value of the evidence obtained."                   Lopez-

Mendoza, 468 U.S. at 1050-51.2

              Invoking    this       potential     limit    to     Lopez-Mendoza's

holding, Garcia contends that the circumstances of her arrest and

the conditions of her detention constitute egregious violations of

her Fourth and Fifth Amendment rights.                  As a result, she claims

that the BIA and IJ erred in refusing to suppress both the I-213

Form and her birth certificate.                 The government responds that

Garcia       has   not   made    a    prima     facie    showing    of   egregious

constitutional violations.             It further argues that, regardless,

the agency correctly concluded that Garcia's birth certificate

established her alienage independent of any such violations.                   The

government's second argument is persuasive.

              We review de novo the BIA's ultimate legal determination

that Garcia's birth certificate was obtained independent of any

constitutional violations and, thus, was not suppressible as fruit




       The Court also noted that its "conclusions concerning the
       2

exclusionary rule's value might change, if there developed good
reason to believe that Fourth Amendment violations by INS officers
were widespread." Lopez-Mendoza, 468 U.S. at 1050. While only a
plurality of the Court directly endorsed these two potential
limitations, four dissenting Justices would have found the
exclusionary rule generally applicable in civil deportation
proceedings. Thus, as other circuits have, we read Lopez-Mendoza
to suggest that a clear majority of the Court would apply the
exclusionary rule in either of these situations. Accord, e.g.,
Puc-Ruiz v. Holder, 629 F.3d 771, 778 n.2 (8th Cir. 2010).
                                        - 7 -
of the poisonous tree.     See Soto-Hernandez v. Holder, 729 F.3d 1,

3 (1st Cir. 2013) (reviewing the BIA's legal conclusions de novo);

United States v. Faulkingham, 295 F.3d 85, 90 (1st Cir. 2002)

(determining "anew" whether evidence should be suppressed).            Where

evidence is not obtained as the direct result of an illegal search,

but may have been derived from the fruits of that initial search,

we must determine "whether the chain of causation proceeding from

the   unlawful   conduct   has   become   so   attenuated   or   has    been

interrupted by some intervening circumstance so as to remove the

'taint' imposed upon that evidence by the original illegality."

United States v. Crews, 445 U.S. 463, 471 (1980).

           Importantly, more than half a century ago the Supreme

Court definitively rejected the idea that "all evidence is 'fruit

of the poisonous tree' simply because it would not have come to

light but for the illegal actions of the police."            Wong Sun v.

United States, 371 U.S. 471, 487-88 (1963) (emphasis added).              As

the Court has since reiterated, "exclusion may not be premised on

the mere fact that a constitutional violation was a 'but-for' cause

of obtaining evidence."      Hudson v. Michigan, 547 U.S. 586, 592

(2006).   Instead, for suppression to be warranted there also must

be some indication that government actors took advantage of the

initial illegality to obtain the challenged evidence.            Wong Sun,

371 U.S. at 488.    We ask whether, "granting establishment of the

primary illegality, the evidence to which instant objection is

                                  - 8 -
made has been come at by exploitation of that illegality or instead

by means sufficiently distinguishable to be purged of the primary

taint."    Id. (citation omitted).

              Particularly    where     evidence     is   obtained    from   third

parties,      as   Garcia's    birth     certificate       was   here,      several

considerations may be relevant, including: whether the government

otherwise would "have known the identity of [the] third parties

[or] what to ask them"; whether the government "anticipated that

the illegal search would help lead it to" those third parties; and

whether third parties nevertheless "would have come forward on

their own had the [government] not sought them out." United States

v. Finucan, 708 F.2d 838, 844 (1st Cir. 1983).                    Of particular

pertinence is the "degree of free will" exercised by those who

"come forward and offer evidence entirely of their own volition."

United States v. Ceccolini, 435 U.S. 268, 276 (1978).

              Here, Garcia argues that her birth certificate should

have   been    suppressed     because    it    was   obtained    by   ICE    "as   a

consequence of" her unlawful detention.               Even assuming Garcia's

arrest and detention involved egregious constitutional violations,

however, her argument boils down to the singular assertion that

the Mexican Consulate "would not have sent the birth certificates

to ICE had ICE not arrested [her]."             That claim is a simple "but

for" argument.       It may well be that Garcia's detention impelled

the Mexican Consulate to proffer her birth certificate to ICE.

                                       - 9 -
But Garcia points to nothing in the record suggesting that the

government exploited the purported illegalities to obtain her

birth   certificate.         Indeed,     Garcia's    counsel    forthrightly

acknowledged at oral argument that there is no indication that the

government even notified the consulate Garcia had been detained.

Instead,    the    Mexican   Consulate   appears    to   have   independently

learned of Garcia's detention and sent the birth certificate to

ICE entirely of its own volition.           To nevertheless find Garcia's

birth certificate tainted in these circumstances would require us

to reject the Supreme Court's repeated admonition that all evidence

"which somehow came to light through a chain of causation that

began with an illegal arrest" is not rendered per se inadmissible.

Id. at 276.

            Because suppression of Garcia's birth certificate was

not required, the government was able to prove Garcia's alienage

in   this   case    "using   evidence    gathered   independently     of,   or

sufficiently attenuated from, the original arrest" and without

resorting to the I-213 Form.            Lopez-Mendoza, 468 U.S. at 1043.

Garcia did not contest the validity or authenticity of the birth

certificate before the IJ, and the document suffices without more

to prove her alienage. Moreover, because an IJ may draw an adverse

inference from an alien's invocation of the Fifth Amendment during

removal proceedings, see id. at 1043-44; Peña-Beltre v. Holder,

622 F.3d 57, 62 n.3 (1st Cir. 2010), the IJ was permitted to

                                   - 10 -
conclude that Garcia's silence "fairly corroborate[d]" the birth

certificate's authenticity, Matter of Guevara, 20 I. & N. Dec.

238, 243 (BIA 1990).3

          As we affirm the BIA's decision based on evidence that

was not tainted by any constitutional violations, we need not

determine whether those purported violations were "egregious."

Westover v. Reno, 202 F.3d 475, 479 (1st Cir. 2000).4   Our holding

should not, however, be taken to suggest that there necessarily

were no constitutional violations here.      See Aguilar v. U.S.

Immigration & Customs Enf't, 510 F.3d 1, 24 (1st Cir. 2007) (urging


     3 Garcia urges two other independent grounds for suppressing
her birth certificate. Both fail. First, Garcia claims that ICE
violated a DHS regulation requiring that an alien be informed of
her right to counsel. See 8 C.F.R. § 287.3(c). But even if ICE
violated that regulation, and even if regulatory violations
warrant suppression, contra Navarro-Chalan v. Ashcroft, 359 F.3d
19, 23 (1st Cir. 2004), Garcia's birth certificate is similarly
untainted by any regulatory violation.
     Second, Garcia invokes a separate DHS regulation that
prohibits an IJ from considering in removal proceedings
information gleaned only from the record of a bond proceeding.
See 8 C.F.R. § 1003.19(d).     This argument founders for several
independent reasons, possibly including Garcia's failure to raise
the issue below (although the government has not pressed waiver).
In any event, it suffices to point out that, while the Mexican
Consulate's cover letter advocated for Garcia's release, there is
no indication in the record that the birth certificate was intended
for use in, or was ever in fact introduced in, a bond proceeding.
     4 We also need not spell out precisely how we would assess
whether constitutional violations are "egregious." Though we have
previously noted some factors that we might find informative, see
Kandamar v. Gonzales, 464 F.3d 65, 71 (1st Cir. 2006), we have not
yet followed other circuits in establishing a particular test.
Compare, e.g., Oliva-Ramos v. Att'y Gen. of U.S., 694 F.3d 259,
279 (3d Cir. 2012), with Orhorhaghe v. I.N.S., 38 F.3d 488, 493
(9th Cir. 1994).
                              - 11 -
ICE to "treat this [raid's] chiaroscuro series of events as a

learning experience in order to devise better, less ham-handed

ways of carrying out its important responsibilities").

                              III.

          The agency did not err in considering Petitioner's birth

certificate as independent evidence of her alienage.   Accordingly,

the petition for review is denied.




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