                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


LUIS ENRIQUE SANCHEZ, AKA                No. 14-71768
Enrique Cruz Sanchez, AKA Luis
Llamas Sanchez, AKA Luis Charles         Agency No.
Sanchez, AKA Enrique Sanchez            A076-359-028
Cruz, AKA Luis Enrique Sanchez
Llamas,
                        Petitioner,       OPINION

                v.

JEFFERSON B. SESSIONS III, Attorney
General,
                       Respondent.



       On Petition for Review of an Order of the
           Board of Immigration Appeals

         Argued and Submitted March 8, 2017
                Pasadena, California

                Filed August 30, 2017

      Before: Harry Pregerson, Richard A. Paez,
       and Morgan B. Christen, Circuit Judges.

             Opinion by Judge Pregerson;
           Concurrence by Judge Pregerson;
            Concurrence by Judge Christen
2                     SANCHEZ V. SESSIONS

                          SUMMARY *


                           Immigration

    The panel granted, reversed, and remanded Luis Enrique
Sanchez’s petition for review of the Board of Immigration
Appeals’ decision affirming an immigration judge’s
decision denying Sanchez’s motion to suppress evidence of
his alienage and ordering his removal.

    The panel held that Coast Guard officers who detained
Sanchez committed an egregious Fourth Amendment
violation because they seized Sanchez based on his Latino
ethnicity alone. Accordingly, the panel held that the
immigration judge erred in failing to suppress the Form I-
213 (Record of Deportable/Inadmissible Alien), which was
prepared after his immigration arrest and which the
Government introduced to establish Sanchez’s alienage and
entry without inspection. The panel also concluded that
Sanchez was not seized at the United States border, where
Fourth Amendment protections are lower.

    The panel further held that, because Coast Guard officers
detained Sanchez solely on the basis of his Latino ethnicity,
the officers violated an immigration regulation, 8 C.F.R.
§ 287.8(b(2), which provides that an immigration officer
may briefly detain an individual only if the officer has
“reasonable suspicion, based on specific articulable facts”
that the person is engaged in an offense or is an alien illegally
in the United States. Accordingly, the panel held that
Sanchez’s removal proceedings must be terminated based on

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   SANCHEZ V. SESSIONS                      3

the regulatory violation because the regulation is designed to
benefit Sanchez, and Sanchez was prejudiced by the
violation.

    Because the panel concluded Sanchez’s proceedings
should have been terminated based on the regulatory
violation, the panel did not reach the question whether
Sanchez’s previously-submitted Family Unity Benefits and
Employment applications, which the Government also
introduced to establish alienage, are indirect fruits of the
poisonous tree. The panel granted Sanchez’s petition for
review and remanded to the Board with instructions to
terminate Sanchez’s removal proceedings.

    Concurring, Judge Pregerson wrote separately to explain
why it is unfair for the Government to encourage noncitizens
to apply for immigration relief, and later use statements in
those relief applications against them in removal
proceedings. Judge Pregerson expressed concern about the
Government’s argument that the exclusionary rule does not
apply to Sanchez’s Family Unity Benefits and Employment
Authorization applications because they predated the
egregious constitutional violation.        He wrote that
categorically exempting pre-existing applications from the
exclusionary rule in this way allows law enforcement to
unconstitutionally round up migrant-looking individuals,
elicit their names, and then search through Government
databases to discover incriminating information in pre-
existing immigration records.

    Concurring, Judge Christen agreed that the case did not
concern a border stop, noting that the Coast Guard did not
seize Sanchez at a port of entry and that the evidence did not
show that Sanchez’s boat had sailed from international
waters. Judge Christen also agreed that Sanchez’s removal
4                  SANCHEZ V. SESSIONS

proceedings must be terminated based on the regulatory
violation.


                       COUNSEL

John Wolfgang Gehart (argued), Lourdes Barrera Haley,
Elena Yampolsky, and Carlos Vellanoweth, Vellanoweth &
Gehart LLP, Los Angeles, California, for Petitioner.

Tim Ramnitz (argued), Attorney; Jennifer P. Levings, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.


                        OPINION

PREGERSON, Circuit Judge:

                   INTRODUCTION

    This case is about Luis Sanchez, a small boat owner, who
took some friends on a fishing trip within United States
territorial waters, and ended up in removal proceedings
before an immigration judge (“IJ”) under section 240 of the
Immigration and Nationality Act, 8 U.S.C. § 1229a.

    Here is what happened: Sanchez’s small boat was dead
in the water because of engine failure near Channel Islands
Harbor in Oxnard, California. His friend issued a distress
call, and responding United States Coast Guard officers
towed Sanchez’s boat into Channel Islands Harbor, a private
recreational harbor. When they arrived at Channel Islands
Harbor, eight Coast Guard officers were waiting for Sanchez
and his companions. The Coast Guard officers immediately
                   SANCHEZ V. SESSIONS                      5

detained, frisked, and arrested Sanchez and his companions.
The Coast Guard officers contacted Customs and Border
Protection because the officers suspected that Sanchez and
his companions were “undocumented worker[] aliens.”
Sanchez was then placed in removal proceedings. The
matter before us is limited to Sanchez’s removal
proceedings.

    During removal proceedings before the IJ, the
Government sought to establish Sanchez’s alienage and his
entry into the United States without inspection by
introducing:   (1)    a     Form    I-213   (Record    of
Deportable/Inadmissible Alien) that was prepared by a
Customs and Border Protection officer after Sanchez’s
immigration arrest and (2) Sanchez’s Family Unity Benefits
and Employment Authorization applications.

    At the removal hearing before the IJ, Sanchez moved to
suppress the Form I-213 and the Family Unity Benefits and
Employment Authorization applications as the fruits of an
egregious Fourth Amendment violation. Sanchez argued
that the Coast Guard officers egregiously violated his Fourth
Amendment rights by detaining him based on his Latino
ethnicity alone. The IJ denied Sanchez’s motion to suppress
and ordered Sanchez removed to Mexico. The Board of
Immigration Appeals (“BIA”) affirmed. This Petition for
Review timely followed.

    We grant Sanchez’s Petition for Review. We conclude
that the Coast Guard officers committed an egregious Fourth
Amendment violation and violated an immigration
regulation because they seized Sanchez based on his Latino
ethnicity alone. Thus, we hold that the IJ erred in failing to
suppress the Form I-213, but do not reach the question of the
Family Unity Benefits and Employment Authorization
applications. Additionally, because Sanchez has shown that
6                     SANCHEZ V. SESSIONS

the Government violated its own regulation that is designed
to benefit Sanchez, and that Sanchez was prejudiced by the
violation, we hold that Sanchez’s removal proceedings must
be terminated.

                FACTUAL BACKGROUND

Luis Enrique Sanchez’s Immigration History

     Luis Enrique Sanchez is forty-five years old. He was
born in, and is a citizen of, Mexico. He entered the United
States without inspection in March 1988 when he was
seventeen years old. For the last three decades – most of his
life – he has lived in Ventura County, California.

    On May 11, 2004, Sanchez submitted Family Unity
Benefits and Employment Authorization applications to the
United States Citizenship and Immigration Service
(“USCIS”). USCIS granted Sanchez Family Unity Benefits,
which granted him authorization to reside and work in the
country, through his father. 1 Sanchez’s Benefits expired on
May 11, 2006. Sanchez applied for an extension of his
Benefits on December 2, 2008. However, on May 28, 2009,
USCIS denied Sanchez’s applications because Sanchez had
three misdemeanor convictions for violations of California’s
Vehicle Code, and was therefore ineligible for Family Unity
Benefits. 2 8 C.F.R. § 236.13(b).


    1
      Sanchez qualified for Family Unity Benefits through his father
because he was the unmarried child of his father, who had obtained
lawful status as a Special Agricultural Worker. 8 C.F.R. § 236.12.
    2
      On September 16, 1993, Sanchez was convicted of violating
California Vehicle Code § 23109(c) (exhibition of speed on a highway),
§ 12500(a) (driving without a license), and § 40508(b) (failing to pay
                      SANCHEZ V. SESSIONS                           7

Fishing Trip and Immigration Arrest

    On February 25, 2010, Sanchez, two adult Latino
friends, and one of the friend’s 14-month-old son took a
fishing trip. Using Sanchez’s small pleasure boat, they
departed from the Channel Islands Harbor, a recreational
harbor near Port Hueneme in Oxnard, California. Sanchez
declared that he and his companions did not travel outside
United States territorial waters; indeed, that they did not
travel more than two or three miles from the harbor. See
Nat’l Oceanic & Atmospheric Admin., U.S. Maritime Limits
and Boundaries, https://www.nauticalcharts.noaa.gov/csdl/
mbound.htm (Sept. 13, 2013) (describing that territorial
waters extend to 12 nautical miles).

    About thirty minutes into the fishing trip, the small
boat’s engines lost power and the boat was dead in the water.
One of Sanchez’s friends on the boat called 911 to request a
tow back to the recreational harbor. The U.S. Coast Guard
(the “Coast Guard”) responded. Upon reaching the boat, the
Coast Guard officers towed Sanchez’s boat back to Channel
Islands Harbor.

   Upon arriving at Channel Islands Harbor around
5:00 p.m., approximately eight Coast Guard officers were
waiting onshore for Sanchez and his companions. Once
Sanchez and his companions disembarked the boat, the
Coast Guard officers immediately detained and frisked them.
The Coast Guard officers demanded that Sanchez and his



court fine). On September 27, 1995, Sanchez was convicted of violating
California Vehicle Code § 20002(a) (failing to stop after a vehicular
accident). On February 8, 2008, Sanchez was convicted of violating
California Vehicle Code § 12500(a) (driving without a license).
8                      SANCHEZ V. SESSIONS

companions hand over their identifications and belongings.
Sanchez handed his driver’s license to a Coast Guard officer.

    The Coast Guard officers told Sanchez and his
companions that they were not allowed to leave. When
Sanchez asked why the group was not allowed to leave, a
Coast Guard officer told Sanchez not to ask any questions
and to wait for someone else to speak with him. Sanchez
testified that the Coast Guard officers asked him only two
questions, which he answered: (1) what is your name? and
(2) where do you live?

    A Coast Guard officer could not “establish positive
identity or nationality” of Sanchez. 3 Without any other
information, the Coast Guard officers notified U.S. Customs
and Border Protection to report “the possibility of
4 undocumented worker[] aliens.” 4

    About two hours later, Customs and Border Protection
officers arrived at Channel Islands Harbor and detained the
men for two more hours, during which time someone arrived
to pick up the infant. Customs and Border Protection
officers then transported Sanchez and the two adult Latino
males to a Customs and Border Protection facility. The
    3
      According to the U.S. Customs and Border Protection Form I-213
prepared after Sanchez’s arrest, the following Government computer
databases were searched using Sanchez’s information, and all of them
returned “negative” results: the Automated Fingerprint Identification
System; the Consular Consolidated Database; the National Crime
Information Center; and the Treasury Enforcement Communications
System.
    4
       There is no indication that Coast Guard officers searched
Sanchez’s boat. It is undisputed that neither the boat nor the passengers
carried contraband.
                      SANCHEZ V. SESSIONS                             9

Customs and Border Protection officers detained and
interrogated Sanchez, strip searched him, and retained his
identification and wallet.     Through this questioning,
Customs and Border Protection officers obtained
information about Sanchez’s alienage and entry into the
United States. Customs and Border Protection released
Sanchez later that night.

    Customs and Border Protection Officer Carlos Rubio
prepared a Form I-213 (Record of Deportable/Inadmissible
Alien) 5 for Sanchez. The Form I-213 included Sanchez’s
admission that he was undocumented and had entered the
United States without inspection. The Form I-213 also
stated that the Coast Guard officers suspected that Sanchez
was an “undocumented worker[] alien[],” detained Sanchez,
and thereafter contacted Customs and Border Protection.

              PROCEDURAL BACKGROUND

    Nine months after the fishing trip, on November 10,
2010, the United States Department of Homeland Security
served Sanchez with a Notice to Appear for removal
proceedings.    The Government charged Sanchez as
removable. On December 27, 2011, Sanchez appeared with
counsel before an immigration judge (“IJ”) and denied the
charges of removability.



    5
       A “Form I-213 is essentially a recorded recollection of a[n
immigration official’s] conversation with a [noncitizen].” Bustos Torres
v. I.N.S., 898 F.2d 1053, 1056 (5th Cir. 1990). It is created by an
immigration official “with biographical information about a
noncitizen. . . . It is generally created during the questioning of a
noncitizen to obtain information to place him in removal proceedings.”
Immigration Trial Handbook, § 7:12: Form I-213 (July 2016 Update).
10                     SANCHEZ V. SESSIONS

    At the removal hearing before the IJ, the Government
established Sanchez’s alienage and that he entered the
country without inspection by submitting the following
documents: (1) the Form I-213 prepared by Customs and
Border Protection officer Rubio; and (2) Sanchez’s Family
Unity Benefits and Employment Authorization applications.

     Sanchez filed a motion to suppress these documents and
to terminate proceedings. He argued that the documents
should be suppressed because the Government obtained and
produced those documents in violation of his Fourth
Amendment rights when they seized and detained him solely
on the basis of his Latino appearance. 6 Sanchez argued that
if his motion to suppress were granted, the IJ must terminate
proceedings. The IJ denied Sanchez’s motion to suppress
and ordered Sanchez removed to Mexico.

    Sanchez appealed the IJ’s decision to the BIA. Sanchez
again argued that the Coast Guard officers racially targeted
him because of his Latino ethnicity. On May 27, 2014, the
BIA affirmed the IJ’s decision and further concluded that
Sanchez’s identity and “evidence of his alienage that is
independently derived from a routine record search based on
that identity is not suppressible.” 7 This Petition for Review
timely followed.



     6
      Sanchez submitted a declaration in support of his motion to
suppress. In the declaration, Sanchez recounted the events leading to his
immigration arrest. Sanchez testified before the IJ in support of the
motion to suppress. The IJ found Sanchez’s testimony was consistent
with his declaration.
    7
      Here, the BIA was referring to Sanchez’s Family Unity Benefits
and Employment Authorization applications.
                   SANCHEZ V. SESSIONS                     11

    JURISDICTION & STANDARD OF REVIEW

    We have jurisdiction under 8 U.S.C. § 1252. Where, as
here, the BIA adopts the IJ’s decision while adding some of
its own reasoning, we review both decisions. Lopez-
Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011).
We review constitutional claims and questions of law de
novo. Id.

                       DISCUSSION

    The central issue on appeal is a constitutional and legal
question: whether the evidence establishing Sanchez’s
alienage and his entry without inspection (i.e., the Form I-
213) must be suppressed as the fruits of an egregious Fourth
Amendment violation.       Lopez-Rodriguez v. Mukasey,
536 F.3d 1012, 1016–19 (9th Cir. 2008). The exclusionary
rule applies in civil removal proceedings where a
noncitizen’s Fourth Amendment rights are egregiously
violated. Martinez-Medina v. Holder, 673 F.3d 1029, 1033–
34 (9th Cir. 2011).

    For the exclusionary rule to apply in civil removal
proceedings, a noncitizen must first establish (1) a prima
facie case that law enforcement violated his or her Fourth
Amendment rights; and (2) that the Fourth Amendment
violation was egregious. Lopez-Rodriguez, 536 F.3d at
1016. Once a prima facie case and egregiousness are
established, the burden shifts to the Government to defend
the constitutionality of its actions. Matter of Barcenas,
19 I.&N. Dec. 609, 611 (BIA 1988). If the Government fails
to adequately defend the constitutionality of its actions, the
noncitizen’s motion to suppress should be granted.

   Thus, to resolve whether Sanchez can suppress the
Government’s evidence establishing his alienage and that he
12                 SANCHEZ V. SESSIONS

entered the country without inspection (i.e., the Form I-213),
we must ask a series of questions: (1) whether Sanchez was
seized at the border, where Fourth Amendment protections
are lower; (2) whether Sanchez established a prima facie
case that the Coast Guard officers violated his Fourth
Amendment rights; and, if so, (3) whether that violation was
egregious.

     We answer these questions below and conclude that the
Coast Guard officers committed an egregious Fourth
Amendment violation and violated an immigration
regulation when they seized Sanchez based on his Latino
ethnicity alone. The exclusionary rule therefore applies, and
we hold that the Form I-213 must be suppressed because it
is tainted by the underlying egregious Fourth Amendment
violation. We also hold that the immigration judge erred by
failing to terminate Sanchez’s removal proceedings based on
the Coast Guard officers’ violation of an immigration
regulation. We do not reach the issue whether the Family
Unity Benefits and Employment Authorization applications
should have been suppressed.

I. Was Sanchez seized at the United States border?

    The Government argues that the Coast Guard officers
seized Sanchez at the United States border, where Fourth
Amendment protections are lower. We disagree.

    Generally, “[a] border search is by its very nature
reasonable under the [F]ourth [A]mendment, and requires
neither a warrant, probable cause, nor even articulable
suspicion.” United States v. Dobson, 781 F.2d 1374, 1376
(9th Cir. 1986). The Fourth Amendment still applies at the
border, however, and searches or seizures that implicate a
person’s dignity “require some level of suspicion.” United
States v. Flores-Montano, 541 U.S. 149, 152 (2004).
                   SANCHEZ V. SESSIONS                    13

    To determine whether the seizure was a “border stop,”
we must assess whether the seizure (1) occurred at a United
States port of entry, United States v. Villamonte-Marquez,
462 U.S. 579, 589–92 (1983), or (2) took place on the high
seas when reasonably certain facts suggested that the vessel
sailed from international waters, United States v. Tilton,
534 F.2d 1363, 1366 (9th Cir. 1976).

    First, Sanchez was not seized at a United States port of
entry. Sanchez was seized at Channel Islands Harbor, which
is not a port of entry as defined in 8 C.F.R. § 100.4 and
19 C.F.R. §§ 101.1, 101.3 (defining Port Hueneme as a
United States port of entry). Rather, Channel Islands Harbor
is a recreational harbor about one mile from the Port
Hueneme port of entry.

    Second, there is no evidence that Sanchez’s boat had
entered United States territorial waters from international
waters.     The Coast Guard officers first encountered
Sanchez’s boat in United States territorial waters only two
miles from a recreational fishing harbor. There is nothing in
the record that shows whether Sanchez’s small boat came
from international waters, or whether the Coast Guard asked
him whether it did, and the Government has not offered any
“reasonably certain” facts that suggest that Sanchez’s boat
traveled from international waters. Tilton, 534 F.2d at 1366.

    We conclude that the Coast Guard officers did not seize
Sanchez at the United States border. Therefore, the lower
Fourth Amendment standard does not apply. Accordingly,
we must determine whether Sanchez established a prima
facie case that the Coast Guard officers’ actions were
unreasonable under the ordinary Fourth Amendment
standard.
14                 SANCHEZ V. SESSIONS

II. Did Sanchez establish a prima facie case that the
    Coast Guard officers violated his Fourth Amendment
    rights?

    Under the ordinary Fourth Amendment standard,
“[w]hen an encounter between a law [enforcement officer]
and another person escalates to the point where it is
considered a ‘seizure,’ the officer must have a reasonable,
articulable basis for his actions.” Orhorhaghe v. I.N.S.,
38 F.3d 488, 494 (9th Cir. 1994).

    It is well-settled that it is unreasonable for a law
enforcement officer to seize a person the officer presumes is
undocumented based solely on the person’s appearance or
name. See id. at 497–98 (“[A]llowing INS agents to seize
and interrogate an individual simply because of his foreign-
sounding name or his foreign-looking appearance risks
allowing race or national-origin to determine who will and
who will not be investigated.”); see also United States v.
Brignoni-Ponce, 422 U.S. 873, 885–86 (1975) (holding that
a person’s proximity to the United States-Mexico border and
apparent Mexican descent was not enough to constitute
reasonable suspicion).

    First, Sanchez argues that immediately after he
disembarked his boat, the Coast Guard officers seized him
based on his Latino ethnicity alone. An encounter with law
enforcement becomes a seizure when a reasonable person,
considering the totality of the circumstances, would not feel
“free to decline the officers’ requests or otherwise terminate
the encounter.” Florida v. Bostick, 501 U.S. 429, 438
(1991). It is undisputed that immediately upon being
brought ashore, eight Coast Guard officers were waiting for
Sanchez and his companions. It is further undisputed that
the Coast Guard officers (1) immediately detained and
frisked Sanchez, (2) demanded that Sanchez provide
                   SANCHEZ V. SESSIONS                     15

identification, (3) told Sanchez that he was not free to leave
until someone else questioned him, (4) instructed Sanchez
not to ask questions, and (5) detained Sanchez for two hours.

    Considering the totality of the circumstances, we
conclude that Sanchez was seized immediately as he
disembarked his boat at Channel Islands Harbor because a
reasonable person in Sanchez’s position would not have felt
free to decline the Coast Guard officers’ requests or
otherwise terminate the encounter.

    Second, Sanchez argues that the Coast Guard officers
detained him based on his Latino ethnicity alone. When the
Coast Guard officers seized Sanchez, they did not explicitly
state that they seized him and his companions because they
are Latinos. But the Government has not offered a
satisfactory alternative explanation for the warrantless
seizure.

    The Government’s only evidence explaining the Coast
Guard officers’ conduct is the Form I-213 prepared by
Customs and Border Protection Officer Rubio after
Sanchez’s arrest. According to the Form I-213, the Coast
Guard officers reported Sanchez to Customs and Border
Protection because the officers suspected that Sanchez and
his companions were “undocumented worker[] aliens.”

    On the record before us, it appears that the Coast Guard
officers seized and detained Sanchez based on his Latino
ethnicity alone. Accordingly, the Coast Guard officers’
conduct was unreasonable. We therefore conclude that
Sanchez established a prima facie case that the Coast Guard
officers violated his Fourth Amendment rights.
16                 SANCHEZ V. SESSIONS

III.   Did the Coast Guard officers egregiously violate
       Sanchez’s Fourth Amendment rights?

    A Fourth Amendment violation alone does not trigger
the exclusionary rule in civil removal proceedings: the
exclusionary rule only applies if the Government’s Fourth
Amendment violation is egregious. Lopez-Rodriguez,
536 F.3d at 1016. Because we conclude that Sanchez
established a prima facie case that the Coast Guard officers
violated his Fourth Amendment rights, we must consider
whether the Coast Guard officers’ conduct was egregious.

    A Fourth Amendment violation is egregious if “evidence
is obtained by deliberate violations of the Fourth
Amendment, or by conduct a reasonable officer should have
known is in violation of the Constitution.” Gonzalez-Rivera
v. I.N.S., 22 F.3d 1441, 1449 (9th Cir. 1994) (emphasis
added and internal citations omitted). We have held that a
reasonable officer should have known that his or her conduct
violates the Constitution if the case law clearly established
that such conduct was unconstitutional. Id. at 1450.

    Sanchez argues that a reasonable Coast Guard officer
would have known that the case law clearly established that
it was unconstitutional to seize him based on his Latino
ethnicity alone. We agree.

    In 1975, the Supreme Court pronounced in Brignoni-
Ponce that “[e]ven if [the authorities] saw enough to think
that the occupants were of Mexican descent, this factor alone
would justify neither a reasonable belief that they were
[noncitizens], nor a reasonable belief that the car concealed
other [noncitizens] who were illegally in the country.”
422 U.S. at 886.
                   SANCHEZ V. SESSIONS                     17

     In 1994, nineteen years later, this court in Gonzalez-
Rivera held that it was an egregious constitutional violation
when an officer detained an immigrant because of his ethnic
appearance and other not credible reasons because case law
had clearly established the unconstitutionality of seizing a
person based solely on his race or ethnicity. 22 F.3d at
1449–50 (“[The stop] occurred long after the Supreme Court
. . . made clear that the Constitution does not permit such
stops.”). By contrast, in Martinez-Medina, although the
plaintiffs alleged that they were detained based on their
ethnic appearance, this court held that there was not an
egregious violation because the sheriff seized the plaintiffs
after he knew that the plaintiffs were not legally present in
the country. 673 F.3d at 1037.

     As discussed, the Coast Guard officers did not have any
information other than Sanchez’s Latino ethnicity when they
initially seized him on suspicion of being an “undocumented
worker[] alien[].” At the time the Coast Guard officers
seized Sanchez, the principle from Brignoni-Ponce that a
detention based solely on a person’s race or ethnicity is
unconstitutional was clearly established as it had been on the
books for 35 years. Unlike the sheriff in Martinez-Medina,
the Coast Guard officers did not know that Sanchez was not
legally present in the country when they seized him.
Because the case law clearly established that seizing a
person solely based on ethnic appearance was
unconstitutional, a reasonable Coast Guard officer should
have known that he or she was violating the Fourth
Amendment by seizing Sanchez based on his Latino
ethnicity alone.

   We therefore conclude that Sanchez satisfied his initial
burden for suppressing the Form I-213 because he
18                 SANCHEZ V. SESSIONS

established a prima facie that the Coast Guard officers
egregiously violated his Fourth Amendment rights.

IV.    Is the Form I-213 suppressible?

    The Government introduced the Form I-213 at Sanchez’s
removal hearing to establish his alienage and that he entered
the country without inspection. Sanchez argues that the
Form I-213 should be suppressed because it is the product of
the Coast Guard officers’ egregious Fourth Amendment
violation.

    Because we conclude that Sanchez has established a
prima facie case that the Coast Guard officers egregiously
violated Sanchez’s Fourth Amendment rights, the burden
shifts to the Government to defend the constitutionality of
the Coast Guard officers’ actions. Matter of Barcenas,
19 I.&N. Dec. at 611. If the Government cannot defend the
Coast Guard officers’ actions, then the exclusionary rule
applies to all direct products of the seizure, which here
would be the Form I-213.             We conclude that the
Government’s arguments in defense of the Coast Guard
officers’ unconstitutional actions lack merit.

    First, the Government cites a number of cases to argue
that Coast Guard officers may reasonably question persons
on a vessel seeking to come ashore. But, in those cases, the
Coast Guard officers’ actions were constitutional because
there were suspicious circumstances that justified the search
or seizure. See, e.g., United States v. Klimavicius-Viloria,
144 F.3d 1249, 1263–64 (9th Cir. 1998) (finding that the
Coast Guard officers’ search of a fishing boat was
reasonable under the Fourth Amendment because the
occupants claimed to be on a fishing trip, but lacked any
fishing equipment); see also Villamonte-Marquez, 462 U.S.
at 589–92 (finding that the Coast Guard officers’
                       SANCHEZ V. SESSIONS                           19

“suspiciousless” boarding of a sailboat was constitutional
because the sailboat’s markings indicated that it was from
Switzerland and the officers inspected the sailboat’s
documents at a designated port of entry to establish that the
sailboat was authorized to enter the country).

    These cases are clearly distinguishable from Sanchez’s
case because here there was a complete lack of suspicious
circumstances. Sanchez was not carrying contraband, the
Coast Guard officers did not ask Sanchez what he was doing
at sea, and there is no evidence in the record showing that
the Coast Guard officers boarded Sanchez’s boat to inspect
the vessel’s documents. There was no reason for the Coast
Guard officers to suspect that Sanchez had done anything
unlawful or traveled from international waters.

    Second, the Government argues that Coast Guard
regulations 8 authorized the Coast Guard to seize Sanchez
and board his boat. But, “no Act of Congress can authorize
a violation of the Constitution.” Almeida-Sanchez v. United
States, 413 U.S. 266, 272 (1973), and the Government failed
to adequately defend the constitutionality of its seizure.

   We therefore hold that the Form I-213, which the
Government introduced to establish Sanchez’s alienage and
    8
      “The Coast Guard may make inquiries, examinations, inspections,
searches, seizures, and arrests upon the high seas and waters over which
the United States has jurisdiction, for the prevention, detection, and
suppression of violations of laws of the United States.” 14 U.S.C.
§ 89(a). An Executive Order also instructs the Coast Guard to “stop and
board defined vessels, when there is reason to believe that such vessels
are engaged in . . . violations of United States law or. . . [t]o make
inquiries of those on board, examine documents and take such actions as
are necessary to establish the registry, condition and destination of the
vessel and the status of those on board the vessel.” Exec. Order No.
12324, 46 Fed. Red. 48, 109 (Sept. 29, 1981).
20                    SANCHEZ V. SESSIONS

entry without inspection, must be suppressed. We do not
reach whether Sanchez’s Family Unity Benefits and
Employment Authorization applications are indirect fruits of
the poisonous tree because, as discussed below, Sanchez’s
removal proceedings should have been terminated because
the Government violated immigration regulations.

V. Did the Coast Guard officers violate an immigration
   regulation that is meant to protect Sanchez? If so,
   was the violation prejudicial?

    Sanchez argues that the Coast Guard officers violated an
immigration regulation when they seized him without
reasonable suspicion that he had violated any laws. 9 We
agree.

    8 C.F.R. § 287.8(b)(2) provides that an immigration
officer may briefly detain an individual only if the officer
“has a reasonable suspicion, based on specific articulable
facts, that the person being questioned is, or is attempting to
be, engaged in an offense against the United States or is an
alien illegally in the United States.”

    It is clear that the Coast Guard officers violated 8 C.F.R.
§ 287.8(b)(2) because they detained Sanchez solely on the
basis of his Latino ethnicity, with no reasonable suspicion
that criminal activity was afoot. 10


     9
       Because we find one regulatory violation, we need not consider
whether the Coast Guard and Customs and Border Protection officers
also violated the other regulations.
     10
       These immigration regulations apply to the Coast Guard officers
here because Coast Guard officers enforcing any law of the United States
shall “be deemed to be acting as agents of the particular executive
                      SANCHEZ V. SESSIONS                           21

    When the Government violates its own immigration
regulation, a noncitizen’s deportation proceeding may be
terminated, so long as (1) the regulation serves a “purpose of
benefit to the [noncitizen],” and (2) the violation prejudiced
the noncitizen’s “interests in such a way as to affect
potentially the outcome of the[] deportation proceeding.”
Matter of Garcia-Flores, 17 I. & N. Dec. 325, 328 (BIA
1980) (adopting United States v. Calderon-Medina,
591 F.2d 529 (9th Cir. 1979)); see also Choyon Yon Hong v.
Mukasey, 518 F.3d 1030, 1036 (9th Cir. 2008) (applying
Garcia-Flores’s two-prong test to evaluate whether the
Government violated a regulation in an immigration case).

    The immigration regulation that the Coast Guard
violated here was meant to preserve Sanchez’s privacy and
protect him from racial profiling. Matter of Garcia-Flores,
17 I. & N. Dec. at 329. Requiring a warrant or reasonable
suspicion, rather than allowing for detention solely on the
basis of race, protects against racial stereotypes influencing
law enforcement’s actions. See Gonzalez-Rivera, 22 F.3d at
1449–50. Sanchez’s interest in being free from racial
profiling and unjust detention clearly fall within the
regulations’ purposes.

    The violation of this regulation also certainly prejudiced
Sanchez. “Where compliance with the regulation is
mandated by the Constitution, prejudice may be presumed.”
Garcia-Flores, 17 I.&N. Dec. at 328–29. Here, compliance
with the regulation requiring reasonable suspicion for
detention was mandated by the Fourth Amendment.



department or independent establishment charged with the
administration of the particular law” and “subject to all the rules and
regulations promulgated by such department.” 14 U.S.C. § 89(b).
22                  SANCHEZ V. SESSIONS

     Because the Government violated a regulation meant to
benefit Sanchez, and because he was prejudiced by that
violation, Sanchez’s removal proceedings must be
terminated.      See United States ex rel. Accardi v.
Shaughnessy, 347 U.S. 260, 268 (1954) (holding that when
an agency violates its own regulations in making a given
determination, that determination is invalidated); Matter of
Garcia-Flores, 17 I. & N. Dec. at 328–29 (holding that
deportation proceedings may be “invalidated” in the case of
a qualifying regulatory violation); see also Waldron v. INS,
17 F.3d 511, 518 (2d Cir. 1994) (“[W]hen a regulation is
promulgated to protect a fundamental right derived from the
Constitution or a federal statute, and the INS fails to adhere
to it, the challenged deportation proceeding is invalid and a
remand to the agency is required.”).

                      CONCLUSION

    For the foregoing reasons, we GRANT Sanchez’s
Petition for Review and REMAND to the BIA with
instructions to terminate Sanchez’s removal proceedings.

  PETITION    FOR   REVIEW                       GRANTED.
REVERSED and REMANDED.



PREGERSON, Circuit Judge, concurring:

    I write separately to explain why it is unfair for the
Government to encourage noncitizens to apply for
immigration relief, and at a later date use statements in those
relief applications against noncitizens in removal
proceedings.
                   SANCHEZ V. SESSIONS                    23

    The Government should not be permitted to use
noncitizens’ applications for immigration relief to remove
noncitizens from their homes and their families in our
country. When the Government enacts immigration relief
programs, it encourages noncitizens to apply because there
are “significant social costs borne by our Nation when select
groups are denied the means to absorb the values and skills
upon which our social order rests.” Plyler v. Doe, 457 U.S.
202, 220 (1982).

    The Government asks noncitizens to provide personal
information to receive benefits, such as driver’s licenses,
visas, deferred action, and work authorization. But because
noncitizens are afraid that the Government could at a later
date use that information against them, many are reluctant to
apply. See Angélica Cházaro, Challenging the “Criminal
Alien” Paradigm, 63 UCLA L. Rev. 594, 642–43 (2016)
(“Coming out of the shadows to be counted and accounted
for, however, while it may bring the benefits of work
authorization and a social security number, involves
stepping into the potential net of immigration
enforcement.”).

    The Government’s practice in this regard contradicts the
principle of welcoming immigrants into our communities.
This practice also contradicts President Kennedy’s view that
our nation’s “[i]mmigration policy should be generous; it
should be fair; it should be flexible.” John Fitzgerald
Kennedy, A Nation of Immigrants (1964). We should
encourage, not punish, noncitizens who come out of the
shadows seeking avenues to lawful status.

    I am also concerned about the Government’s argument
that the exclusionary rule does not apply to Sanchez’s
Family Unity Benefits and Employment Authorization
applications because they predate the egregious
24                 SANCHEZ V. SESSIONS

constitutional violation. See United States v. Del Toro
Gudino, 376 F.3d 997 (9th Cir. 2004).

    Categorically exempting applications that predate an
egregious constitutional violation from the exclusionary rule
allows immigration and other law enforcement agencies to
prey on migrant and working-class communities. Law
enforcement officers can unconstitutionally round up
migrant-looking individuals, elicit their names, and then
search through Government databases to discover
incriminating information in pre-existing immigration
records. See Eda Katharine Tinto, Policing the Immigrant
Identity, 68 Fla. L. Rev. 819, 864 (2016).

    Nothing prevents law enforcement from engaging in this
unfair tactic if, as the Government contends, immigration
records that predate an egregious constitutional violation can
never be the fruit of the poisonous tree. See Elkins v. United
States, 364 U.S. 206, 217 (1960) (“[The] purpose [of the
exclusionary rule] is . . . to compel respect for the
constitutional guaranty in the only effectively available
way—by removing the incentive to disregard it.”); United
States v. Olivares-Rangel, 458 F.3d 1104, 1120 (10th Cir.
2006) (“[T]he deterrence purpose of the exclusionary rule
would effectively be served only by excluding the very
evidence sought to be obtained by the primary illegal
behavior, not just the means used to obtain that evidence.”).

    This troubling end-around the exclusionary rule corrupts
our justice system. The Government should not be allowed
to flout the protections of the Fourth Amendment and then
use a noncitizen’s application for immigration relief against
her or him. We should foster communication, not distrust,
between migrant communities and law enforcement.
                    SANCHEZ V. SESSIONS                     25

CHRISTEN, Circuit Judge, concurring:

    I agree with the panel that this was not a border stop. The
Coast Guard did not seize Sanchez at a U.S. port of entry,
nor did the evidence show that Sanchez’s boat had sailed
from international waters. See United States v. Villamonte-
Marquez, 462 U.S. 579, 591–93 (1983); United States v.
Tilton, 534 F.2d 1363, 1364–66 (9th Cir. 1976).

    The record shows that Sanchez provided identification
when he arrived back at the port. The record also shows that
the Coast Guard ran several computer searches that yielded
negative results. Despite the absence of hits in these various
databases, the Coast Guard’s Form I-213 reflects that the
reason for detaining Sanchez was that the Coast Guard “was
not able to establish positive identity or nationality.” But
Sanchez had provided proof of his identity and the Coast
Guard did not put forth evidence that it had any concern that
his identification was invalid. Nor did its computer searches
give reason for detaining Sanchez. In response to Sanchez’s
prima facie showing, the government failed to offer “specific
articulable facts” justifying his detention, see 8 C.F.R.
§ 287.8(b)(2), and therefore violated an immigration
regulation intended to benefit Sanchez. Because the
violation was clearly prejudicial to Sanchez, see Matter of
Garcia-Flores, 17 I. & N. Dec. 325, 328 (BIA 1980), I agree
that his removal proceedings must be terminated.
