                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
              Decided August 30, 2017
          Opinion withdrawn July 18, 2018
                Pasadena, California

               Filed September 19, 2018

   Before: Kim McLane Wardlaw, Richard A. Paez,
       and Morgan B. Christen, Circuit Judges.

               Opinion by Judge Paez;
              Concurrence by Judge Paez
2                     SANCHEZ V. SESSIONS

                          SUMMARY *


                           Immigration

    The panel granted Luis Enrique Sanchez’s petition for
review of a decision of the Board of Immigration Appeals
that affirmed an immigration judge’s denial of Sanchez’s
motion to suppress evidence, holding that a petitioner may
be entitled to termination of removal proceedings without
prejudice for egregious regulatory violations.

    During a fishing trip, Sanchez’s boat lost power and
Coast Guard officers arrived and towed the boat to Channel
Islands Harbor in California. The Coast Guard detained
Sanchez, and he was later taken into custody by Customs and
Border Protection and placed in removal proceedings, where
he unsuccessfully sought to suppress evidence of his
alienage and entry into the United States.

    The panel held that Sanchez had made a prima facie
showing that the Coast Guard officers who detained him
violated 8 C.F.R. § 287.8(b)(2), which requires that an
“immigration officer” have “reasonable suspicion, based on
specific articulable facts” that a person is, or is attempting to
be, engaged in an offense against the United States, or is an
alien illegally in the United States, in order for the
immigration officer to briefly detain the person for
questioning.




    *
      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

    As an initial matter, the panel concluded that the Coast
Guard officers who detained Sanchez were acting as
“immigration officers” within the meaning of the regulation.
The panel explained that the Coast Guard is required by law
to enforce or assist in the enforcement of all Federal laws on,
under, and over the high seas and waters subject to the
jurisdiction of the United States, and that when Coast Guard
officers detain individuals in service of the Immigration &
Nationality Act, they act as immigration agents subject to the
same regulations as their counterparts in the immigration
agencies.

    The panel next explained that evidence may be excluded
for a regulatory violation where: (1) the agency violated one
of its regulations; (2) the subject regulation serves a
“purpose of benefit to the alien”; and (3) the violation
“prejudiced interests of the alien which were protected by
the regulation.” Here, the panel concluded that Sanchez had
made a prima facie showing that the Coast Guard officers
violated 8 C.F.R. § 287.8(b)(2), agreeing with Sanchez that
he was detained solely on the basis of his race, and
explaining that race and ethnicity are never grounds for
reasonable suspicion. The panel also concluded that the
regulation was promulgated to serve a “purpose of benefit”
to petitioners like Sanchez, explaining that the regulation
was intended to reflect constitutional restrictions on the
ability of immigration officials to interrogate and detain
persons in this country. With respect to prejudice, the panel
noted that ordinarily it is the petitioner’s responsibility to
specifically identify prejudice, but that where, as here,
compliance with the regulation is mandated by the
Constitution, prejudice may be presumed.

   The panel observed that a successful prima facie
showing of a regulatory violation for evidentiary
4                  SANCHEZ V. SESSIONS

suppression purposes would normally entitle petitioner to a
remand for the government to rebut the petitioner’s showing.
However, the panel explained that this remedy was beyond
Sanchez’s reach because the BIA had correctly concluded,
in the alternative, that Sanchez’s unlawful status could be
independently established through his pre-existing Family
Unity Benefits and Employment Authorization applications,
both of which are admissible. In this regard, the panel noted
that it is well-established that the simple fact of who a
defendant is cannot be excluded, and that the fruit-of-the-
poisonous-tree doctrine does not extend backwards to taint
evidence that existed before any official misconduct took
place.

    However, the panel noted that suppression was not the
only available remedy, and held that petitioners may be
entitled to termination of their removal proceedings without
prejudice for egregious regulatory violations. The panel
explained that certain kinds of pre-hearing regulatory
violations can be remedied only by termination without
prejudice; for this rare subset of cases, simply remanding for
a new hearing or for further proceedings would be
insufficient because the agency’s violations predated any
hearing.

    Thus, the panel held that a petitioner is entitled to
termination of their proceedings without prejudice where:
(1) the agency violated a regulation; (2) the regulation was
promulgated for the benefit of petitioners; and (3) the
violation was egregious, meaning that it involved
conscience-shocking conduct, deprived the petitioner of
fundamental rights, or prejudiced the petitioner.

   Applying this test, the panel concluded that Sanchez had
made a prima facie showing of an egregious violation of 8
                   SANCHEZ V. SESSIONS                     5

C.F.R. § 287.8(b)(2). The panel remanded with instructions
for the agency to afford the Government an opportunity to
rebut Sanchez’s prima facie showing, explaining that if the
Government fails to rebut Sanchez’s showing that the
violation was egregious, the agency shall consider whether
Sanchez is entitled to termination without prejudice.

    The panel also noted that Judge Pregerson had written
the panel’s prior opinion in this case but that, following
Judge Pregerson’s death, Judge Wardlaw was drawn to
replace him, and the newly constituted panel withdrew the
prior opinion.

    Concurring, Judge Paez noted that, in the panel’s prior
opinion, Judge Pregerson wrote a separate concurrence
expressing his frustration with the Government practice of
encouraging noncitizens to apply for immigration relief, and
later using that information against noncitizens in removal
proceedings. Judge Paez wrote that he shared these concerns
and agreed with Judge Pregerson that the Government’s
practice in this regard contradicts the nation’s longstanding
principle of welcoming immigrants into our communities.

    Judge Paez quoted in full Judge Pregerson’s
concurrence, in which Judge Pregerson had also 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 violation. Judge
Pregerson 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.
6                     SANCHEZ V. SESSIONS

                           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 and
Andrew C. MacLachlan, Senior Litigation Counsel; John W.
Blakeley, Assistant Director; Donald E. Keener, Deputy
Director; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.


                            OPINION

PAEZ, Circuit Judge:

    As Judge Pregerson poignantly described in our prior
opinion: “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.” Sanchez v. Sessions, 870 F.3d 901, 904 (9th Cir.
2017), withdrawn, 895 F.3d 1101 (9th Cir. 2018). 1

   Neither Sanchez nor his friends could have predicted the
sequence of events that produced this outcome. Their plan
had been to go fishing for a few hours, but after they had

    1
       Following Judge Pregerson’s death, Judge Wardlaw was drawn to
replace him. The newly reconstituted panel withdrew the prior opinion.
Portions of this opinion draw from Judge Pregerson’s previous opinion
in this case.
                   SANCHEZ V. SESSIONS                     7

been out for about thirty minutes, the boat unexpectedly lost
power. Stranded and with an infant on board, Sanchez’s
friend called for emergency assistance. Some time later,
United States Coast Guard (“Coast Guard”) officers arrived
and towed the boat safely into Channel Islands Harbor, a
recreational harbor near Oxnard, California, where Sanchez
and his friends were promptly detained, frisked, and asked
for identification.     Although Sanchez complied and
produced his driver’s license, the Coast Guard continued to
hold him and his friends without explanation. The Coast
Guard also contacted Customs and Border Protection
(“CBP”) because they suspected that Sanchez and his friends
were “possib[ly]” “undocumented worker[] aliens.”

    Sanchez was eventually taken into custody by CBP and
placed in removal proceedings, where he unsuccessfully
sought to suppress the Government’s evidence of both his
alienage and his entry into the United States without
inspection as the products of Fourth Amendment and
regulatory violations. Sanchez petitions for review of the
agency’s decision to admit the Government’s evidence. We
grant the petition and conclude that Sanchez has made a
prima facie showing that he was seized solely on the basis of
his Latino appearance, which constitutes a particularly
egregious regulatory violation. We remand for further
proceedings before the IJ so that the Government may rebut
Sanchez’s prima facie showing. We hold that the agency
may consider on remand after the Government’s rebuttal
whether the Coast Guard officers violated 8 C.F.R.
§ 287.8(b)(2) and if so, whether the violation was egregious
and therefore warrants terminating Sanchez’s removal
proceedings without prejudice.
8                     SANCHEZ V. SESSIONS

                                   I.

    Sanchez is a forty-seven year old citizen of Mexico. He
was seventeen years old when he entered the United States
without inspection in 1988 and has lived in this country ever
since. Until December 1, 1988, Sanchez’s father was a
legalized Special Agricultural Worker. This meant that
Sanchez was eligible to apply for Family Unity Benefits, a
program that grants unmarried children of such legalized
workers authorization to reside and work in the United
States. See 8 C.F.R. § 236.12(a)(1).

    Sanchez submitted his Family Unity Benefits and
Employment Authorization applications to the United States
Citizenship and Immigration Service (“USCIS”) on May 11,
2004. Both applications were granted, with his Family Unity
Benefits set to expire on May 11, 2006. Sanchez applied for
an extension in December 2008. This time, however, USCIS
denied Sanchez’s applications. USCIS concluded that he
was ineligible for Family Unity Benefits and that his prior
application for benefits had been approved in error, because
he had previously been convicted of several California
Vehicle Code violations. 2 See 8 C.F.R. § 236.13(b).

    As a result, Sanchez was without lawful status on
February 25, 2010, the day he and his friends embarked on
their ill-fated fishing trip from Channel Islands Harbor. The

    2
       On September 16, 1993, Sanchez was convicted of violating
California Vehicle Code § 23109(c) (speeding on a highway),
§ 12500(a) (driving without a license), and § 40508(b) (failing to pay a
court fine arising from a Vehicle Code violation). On September 27,
1995, Sanchez was convicted of violating California Vehicle Code
§ 20002(a) (failing to stop a vehicle at the nearest location after an
accident). On February 8, 2008, Sanchez was convicted again of
violating California Vehicle Code § 12500(a).
                    SANCHEZ V. SESSIONS                       9

weather was balmy and the group planned to go fishing for
approximately two hours. The trip was not meant to be
particularly arduous: one of Sanchez’s friends brought his
fourteen-month-old son and the small recreational boat they
took out to sea never made it beyond two or three miles from
the harbor—well within United States territorial waters. See
Proclamation No. 5928, 54 Fed. Reg. 777 (Jan. 9, 1989)
(extending U.S. territorial waters to twelve nautical miles
from the baseline).

    The friends had just settled into their trip when,
approximately thirty minutes after leaving the harbor, the
boat’s engines lost power. Unable to make their way back
to shore, one of Sanchez’s friends called 911 to request
assistance. The 911 operator, in turn, contacted the Coast
Guard for assistance. The Coast Guard proceeded to tow the
boat and its occupants back to Channel Islands Harbor. The
Coast Guard officers, however, did not inform Sanchez and
his friends that they would be detained once they reached the
shore. When Sanchez disembarked from the boat around
5:00 p.m., he was confronted by approximately eight Coast
Guard officers waiting to take him into custody. The officers
frisked Sanchez and his friends and then ordered them to turn
over their identification documents and belongings. Sanchez
complied with the officers’ orders and produced his driver’s
license, which the officers took. Sanchez later testified at his
removal hearing that the Coast Guard officers only asked
him two questions while he was detained: his name and
address, both of which he provided.

    Understandably alarmed by the turn of events, Sanchez
tried to ask the Coast Guard officers why they were detaining
him. Instead of answering, the officers ordered Sanchez to
stop asking questions and to stay put until “some other
people” came to speak with him. What Sanchez did not
10                    SANCHEZ V. SESSIONS

know at the time was that the Coast Guard had already
contacted CBP to report “the possibility of 4 undocumented
worker[] aliens” and that the officers were simply waiting
for CBP agents to arrive and take custody of Sanchez. 3 The
CBP agents arrived approximately two hours later, at which
point the Coast Guard officers allowed the group to release
the infant to a relative. CBP then transported Sanchez and
his two friends, also Latino, to a facility where they were
strip searched and interrogated. The CBP officers also
confiscated their identification documents. It was during
this interrogation that Sanchez admitted he had entered the
United States without inspection.

    The CBP officers released Sanchez later that evening and
advised him to try and retain an attorney. A CBP officer
separately prepared a Form I-213 (Record of
Deportable/Inadmissible Alien), which noted that CBP had
been contacted after the Coast Guard officers failed to
“establish positive identity or nationality” for Sanchez and
his companions. The form did not mention that Sanchez
gave his driver’s license to the Coast Guard, but it did note
that subsequent Immigration and Naturalization Service
(“INS”) checks in four databases all returned “negative”
results. 4

    Although Sanchez was released the same day he was
detained, his reprieve was short lived. The United States

     3
       Sanchez’s group consisted of his two friends, himself, and an
infant. The infant was a United States citizen.

     4
      The four databases were the Automated Fingerprint Identification
System, the Consular Consolidated Database, the National Crime
Information Center, and the Treasury Enforcement Communications
System.
                       SANCHEZ V. SESSIONS                            11

Department of Homeland Security (“DHS”) ultimately
served him with a Notice to Appear for removal
proceedings. 5 At the hearing, the Government sought to
establish Sanchez’s nationality and entry without inspection
by submitting CBP’s Form I-213 into evidence. Sanchez
responded by filing a motion to suppress and to terminate
removal proceedings. He argued that the Coast Guard
egregiously violated his Fourth Amendment rights because
the detention was based solely on race. 6 He also argued that
his detention violated 8 C.F.R. § 287.8(b), which requires
that officers possess “reasonable suspicion” that a person is
unlawfully present in the United States before detaining her
or him. Sanchez contended that the Form I-213 was
therefore inadmissible and requested that the IJ terminate
removal proceedings.

    The IJ denied Sanchez’s motion because he had failed to
attach an affidavit in support of his motion; nonetheless, the
IJ scheduled a suppression hearing. At the suppression
hearing, which was held before a different IJ after Sanchez
submitted an affidavit, the Government introduced into
evidence Sanchez’s 2008 Family Unity Benefits and
Employment Authorization applications. Although the IJ

    5
      The Notice to Appear charged Sanchez as removable under
8 U.S.C. § 1182(a)(6)(A)(i) (entry without admission or parole),
§ 1182(a)(2)(A)(i)(II) (conviction of a controlled substance offense), and
§ 1182(a)(2)(A)(i)(I) (conviction of a crime involving moral turpitude).

    6
       Sanchez argues that the Coast Guard officers engaged in ethnic
profiling by detaining him based on his Hispanic or Latino appearance.
Nonetheless, because courts have “also used the language of race when
discussing the relevant constitutional principles in cases involving
Hispanic persons,” we “refer[] to the nature of the bias as racial in
keeping with the primary terminology” used by the Supreme Court.
Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 863 (2017).
12                  SANCHEZ V. SESSIONS

found that Sanchez’s testimony was consistent with his
affidavit, she denied his motion and ordered Sanchez
removed to Mexico. In her decision, the IJ found that
Sanchez had failed to establish a prima facie case of either
an egregious Fourth Amendment violation or a regulatory
violation. The IJ also concluded that Sanchez’s Family
Unity Benefits and Employment Authorization applications
were separately and independently admissible to prove
Sanchez’s identity.

    Sanchez unsuccessfully appealed the IJ’s decision to the
Board of Immigration Appeals (“BIA”). In a brief,
unpublished decision, the BIA concluded that even
assuming the Coast Guard officers violated Sanchez’s rights,
the Government was entitled to rely on independent
evidence—here, Sanchez’s Family Unity Benefits and
Employment Authorization applications—to establish his
nationality and identity. The BIA therefore affirmed the IJ’s
decision denying Sanchez’s motion to suppress and
terminate removal proceedings and the IJ’s removal order.

     Sanchez timely petitioned us for review.

                             II.

    We have jurisdiction over final orders of removal
pursuant to 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.

                             III.

   It is well-established that the exclusionary rule generally
does not apply to removal proceedings. See Chuyon Yon
                    SANCHEZ V. SESSIONS                      13

Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir. 2008).
There are, however, two critical exceptions to this rule:
(1) when the agency violates a regulation promulgated for
the benefit of petitioners and that violation prejudices the
petitioner’s protected interests, see id. at 1035; and (2) when
the agency egregiously violates a petitioner’s Fourth
Amendment rights, see Lopez-Rodriguez v. Mukasey,
536 F.3d 1012, 1018 (9th Cir. 2008). Because Sanchez has
made a prima facie showing that the Coast Guard officers
violated 8 C.F.R. § 287.8(b)(2) when they detained him, we
do not address Sanchez’s constitutional argument.

                              A.

    The subject regulation, 8 C.F.R. § 287.8(b)(2), states that
“[i]f the immigration 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, the immigration officer may briefly detain the person
for questioning.” As an initial matter, we reject the
Government’s argument that the Coast Guard officers who
detained Sanchez were not acting as “immigration officers”
within the meaning of the regulation.

    The Coast Guard is required by law to “enforce or assist
in the enforcement of all applicable Federal laws on, under,
and over the high seas and waters subject to the jurisdiction
of the United States.” 14 U.S.C. § 2(1). This includes
enforcing all applicable provisions of the Immigration and
Nationality Act (“INA”). See Gary W. Palmer, Guarding
the Coast: Alien Migrant Interdiction Operations at Sea,
29 Conn. L. Rev. 1565, 1567, 1570 (1997) (explaining that
the Coast Guard “enforce[s] compliance with the [INA] on
behalf of INS and the Attorney General” (footnote omitted)).
The Coast Guard is thus empowered to search, seize, and
14                    SANCHEZ V. SESSIONS

arrest anyone “for the prevention, detection, and suppression
of violations of laws of the United States” as long as the
individuals in question are located within the high seas and
waters over which the United States has jurisdiction.
14 U.S.C. § 89(a).

    The Coast Guard’s broad law enforcement powers are
not, however, without restriction. Because they are tasked
with “enforcing any law of the United States,” including all
those for which they do not have primary enforcement
authority, officers of the Coast Guard are considered “agents
of the particular executive department or independent
establishment charged with the administration of the
particular law” subject to “all the rules and regulations
promulgated by such department or independent
establishment with respect to the enforcement of that law.”
Id. § 89(b). In practice, 14 U.S.C. § 89(b) ensures that
when—as here—Coast Guard officers detain individuals in
service of the INA, they act as immigration agents subject to
the same regulations as their counterparts in CBP and
Immigration and Customs Enforcement (“ICE”). 7 We
therefore conclude that when the Coast Guard officers
detained Sanchez, they were acting as “immigration
officers” within the meaning of 8 C.F.R. § 287.8(b)(2).

                                  B.

    For nearly four decades, it has been the law in our circuit
that evidence may be excluded for a regulatory violation as

     7
       Contrary to the Government’s argument, it matters little that the
DHS does not formally include Coast Guard officers in its non-
exhaustive, regulatory definition of immigration officers. See 8 C.F.R.
§ 1.2. Lest there be any doubt, 14 U.S.C. § 89(b) declares that Coast
Guard officers who act to enforce immigration laws “shall[] be deemed
to be acting as agents” of the relevant immigration agency.
                     SANCHEZ V. SESSIONS                          15

long as three conditions are satisfied: (1) the agency violated
one of its regulations; (2) the subject regulation serves a
“purpose of benefit to the alien”; and (3) the violation
“prejudiced interests of the alien which were protected by
the regulation.” Matter of Garcia-Flores, 17 I. & N. Dec.
325, 328 (BIA 1980) (quoting United States v. Calderon-
Medina, 591 F.2d 529, 532 (9th Cir. 1979)); see also Chuyon
Yon Hong, 518 F.3d at 1035. Sanchez has made a prima
facie showing that all three of these conditions have been
met here.

                                 1.

    Section 287.8(b)(2) requires that officers possess
reasonable suspicion on the basis of “specific articulable
facts” that a person is unlawfully present in the country
before they detain the person. The record before us is devoid
of any such specific articulable facts. CBP’s Form I-213 is
remarkably terse in its recitation of events surrounding
Sanchez’s detention. The form simply states, in relevant
part, that “US Coast Guard was not able to establish positive
identity or nationality of the 3 adult males and 14 month
infant on board the vessel” and that “US Customs and Border
Protection was notified of the possibility of 4 undocumented
worker[] aliens.”

    The narrative in the Form I-213 is troubling for two
reasons. First, Sanchez consistently testified and maintained
throughout his removal proceedings that he provided the
Coast Guard with his driver’s license when he was initially
detained. 8 A valid driver’s license would, of course,
positively establish Sanchez’s identity. Second, Sanchez

    8
      The IJ acknowledged that Sanchez’s testimony at the suppression
hearing was “consistent[] with his declaration.”
16                 SANCHEZ V. SESSIONS

testified that he was immediately detained and met by a
number of Coast Guard officers once they returned to the
Channel Island Harbor. The Government has yet to dispute
the veracity of Sanchez’s testimony. Crediting both the
information in the Form I-213 and Sanchez’s testimony, the
record indicates that the Coast Guard officers thought
Sanchez was an “undocumented worker alien” before they
returned to the harbor. In other words, as the record
currently stands, the officers could not have reasonably
suspected Sanchez was unlawfully present in this country for
lack of identification because they detained him and called
CBP before they asked for identification and obtained
Sanchez’s driver’s license.

    On these facts, we agree with Sanchez that it appears he
was detained solely on the basis of his race. The
Government has yet to offer specific and articulable facts
that would support the Coast Guard officers’ decision to
detain Sanchez on the basis of reasonable suspicion that he
was unlawfully present in this country or otherwise engaged
in illegal activity. There is no evidence, for instance, that
Sanchez’s boat contained contraband of any kind or that he
informed the Coast Guard officers before his detention that
he had entered the United States without inspection two
decades ago. Because race and ethnicity are never grounds
for reasonable suspicion, we conclude that Sanchez has
made a prima facie showing that the Coast Guard officers
who detained him violated 8 C.F.R. § 287.8(b)(2). See
United States v. Brignoni-Ponce, 422 U.S. 873, 886 (1975)
(“We cannot conclude that [the apparent Mexican ancestry
of the occupants in a car] furnished reasonable grounds to
believe that the three occupants were aliens.”).
                    SANCHEZ V. SESSIONS                       17

                               2.

    We also conclude that 8 C.F.R. § 287.8(b)(2) was
promulgated to serve a “purpose of benefit” to petitioners
like Sanchez. Calderon-Medina, 591 F.2d at 531.

    The Department of Justice (“DOJ”) proposed
§ 287.8(b)(2)—along with a number of other regulations—
to “establish enforcement standards in the areas of force,
interrogation and detention not amounting to arrest.”
57 Fed. Reg. 47011, 47011 (Oct. 14, 1992). The goal was to
“bring immigration officers in line with other Department of
Justice law enforcement officers” and to “assure the
continuance of disciplined and professional conduct by
Service enforcement personnel.” Id. During the notice and
comment period, a number of commenters suggested
amending the proposed regulation to “include current
judicial precedent defining ‘reasonable suspicion’ and the
general authority to interrogate and detain.” 59 Fed. Reg.
441093, 42411 (Aug. 17, 1994).

    DOJ ultimately declined to adopt the commenters’
suggestions. See id. DOJ explained that it would not “be
appropriate to codify” current judicial precedent defining
reasonable suspicion because “binding judicial precedent . . .
is subject to revision in the ongoing process of litigation.”
Id. (emphasis added) (citing Brewer v. Williams, 430 U.S.
387 (1977)). DOJ thus made clear that the regulation was
intended to reflect constitutional restrictions on the ability of
immigration officials to interrogate and detain persons in this
country—a doctrine rooted in the Fourth Amendment. See
INS v. Lopez-Mendoza, 468 U.S. 1032, 1044–45 (1984)
(explaining that “the INS has its own comprehensive scheme
for deterring Fourth Amendment violations by its officers,”
including “regulations requir[ing] that no one be detained
without reasonable suspicion of illegal alienage”).
18                    SANCHEZ V. SESSIONS

    The Fourth Amendment guarantees that “[t]he right of
the people to be secure in their persons . . . against
unreasonable searches and seizures [] shall not be violated.”
U.S. Const. amend. IV. As the Supreme Court has long held,
officers may not “stop and briefly detain a person for
investigative purposes” under the Fourth Amendment unless
they have “reasonable suspicion supported by articulable
facts that criminal activity ‘may be afoot.’” United States v.
Sokolow, 490 U.S. 1, 7 (1989) (citing Terry v. Ohio, 392 U.S.
1, 30 (1968)). Section 287.8(b)(2) all but parrots this
standard: it provides that immigration officers may not
briefly detain a person for questioning unless 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.”

    The regulation and the Fourth Amendment standards it
reflects are undoubtedly for the benefit of petitioners and not
mere best-practices suggestions for immigration officers.
We therefore conclude that § 287.8(b)(2) was promulgated
for the benefit of petitioners like Sanchez. 9

     9
      Our conclusion is not affected by 8 C.F.R. § 287.12, which states
that all regulations within Part 287 of the Code of Federal Regulation
“do not, are not intended to, shall not be construed to, and may not be
relied upon to create any rights, substantive or procedural, enforceable
at law by any party in any matter, civil or criminal.”

     Section 287.12’s bark is worse than its bite. DOJ made clear when
it first promulgated section 287.12—previously designated section
287.11—that the provision was “only intended to ensure that the
regulations do not create rights not otherwise existing in law.” 59 Fed.
Reg. 42406, 42414 (Aug. 17, 1994). DOJ pushed back against concerns
that the disclaimer would somehow “preclude victims of unlawful
Service enforcement practices from pursuing remedies for regulatory
                       SANCHEZ V. SESSIONS                            19

                                   3.

    This brings us to the final condition that Sanchez must
satisfy: prejudice.     Ordinarily, it is the petitioner’s
responsibility to “‘specifically’ identify any prejudice from
the violation” that potentially affected the outcome of the
petitioner’s removal proceeding. Garcia-Flores, 17 I. & N.
Dec. at 328 (quoting Calderon-Medina, 591 F.2d at 532).
But where, as here, “compliance with the regulation is
mandated by the Constitution, prejudice may be
presumed.” 10 Id.; see also Puc-Ruiz v. Holder, 629 F.3d 771,
780 (8th Cir. 2010) (“‘As a general rule, . . . prejudice will

violations,” adding that section 287.12 would not “prevent any party
from pursuing relief for alleged violations of the Constitution or laws of
the United States.” Id. The agency also clarified that section 287.12 was
wholly consistent with United States v. Caceres, 440 U.S. 741 (1979),
see 59 Fed. Reg. 42406, 42414, which held that “[a] court’s duty to
enforce an agency regulation is most evident when compliance with the
regulation is mandated by the Constitution or federal law.” Caceres,
440 U.S. at 749 (emphasis added); see also Bridges v. Wixon, 326 U.S.
135, 152–53 (1945) (invalidating a deportation order because the INS
violated a regulation designed to “afford [petitioners] due process of
law”).

    Section 287.12 thus leaves in place all regulatory rights derived
from the Constitution or federal law. This necessarily includes 8 C.F.R.
§ 287.8(b)(2), which was promulgated to effectuate the Fourth
Amendment.
    10
       The regulation need not explicitly invoke the Constitution for the
Constitution to mandate compliance with the regulation. See Bridges,
326 U.S. at 153 (concluding that a number of regulations, including one
requiring statements to be signed and delivered under oath, were
“designed as safeguards against essentially unfair procedures” and that
the agency’s failure to abide by those regulations necessitated vacating
the petitioner’s order of deportation); see also Garcia-Flores, 17 I. & N.
Dec. at 328 (citing Bridges approvingly).
20                    SANCHEZ V. SESSIONS

have to be specifically demonstrated,’ unless compliance
with the regulation is mandated by the Constitution, in which
case prejudice may be presumed.” (alteration in original)
(quoting Garcia Flores, 17 I. & N. Dec. at 328)); Martinez
Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002) (same).
Because 8 C.F.R. § 287.8(b)(2) reflects the Fourth
Amendment’s requirement that brief detentions be
supported by reasonable suspicion, we presume that Sanchez
was prejudiced by the Coast Guard officers’ failure to abide
by § 287.8(b)(2)’s requirements.

                                 C.

    The BIA erroneously concluded that there was “nothing
unreasonable about the Coast Guard seeking assurances that
the occupants of . . . a vessel are entitled to be present in the
United States before allowing them to enter the country.” 11
That is not the test that applies here. The test for an alleged
violation of § 287.8(b)(2) is whether the Coast Guard
officers possessed reasonable suspicion that Sanchez was
unlawfully present in the country when they detained him.
Sanchez has made a prima facie showing that the Coast
Guard officers did not.

                                 IV.

    We turn to the heart of this case. A successful prima
facie showing of a regulatory violation for evidentiary
suppression purposes would normally entitle the petitioner
to a remand for the government to rebut the petitioner’s
showing. See Matter of Barcenas, 19 I. & N. Dec. 609, 611
     11
       Sanchez was seized at Channel Islands Harbor, which is not a
United States port of entry. See 8 C.F.R. § 100.4; 19 C.F.R. §§ 101.1,
101.3. Nor is there any evidence in the record that Sanchez’s boat
entered United States territorial waters from international waters.
                       SANCHEZ V. SESSIONS                            21

(BIA 1988) (explaining that a petitioner must establish a
prima facie case for suppression “before the Service will be
called on to assume the burden of justifying the manner in
which it obtained the evidence”). This remedy, however, is
beyond Sanchez’s reach. The BIA correctly concluded in
the alternative that Sanchez’s unlawful status could be
independently established through his Family Unity Benefits
and Employment Authorization applications, both of which
are admissible. 12 Put simply, the Government does not need
Sanchez’s Form I-213 to prove that he entered this country
without inspection.

    Were suppression of tainted evidence the only remedy
available to Sanchez, our review—much like the BIA’s—
would end here. But that is not the case. In Calderon-
Medina, we recognized that regulatory violations may
invalidate deportation proceedings. See 591 F.2d at 531. At
the time, we did not elaborate on what such an invalidation
would entail. Today, we join the Second Circuit and hold

     12
        It is well-established that “the simple fact of who a defendant is
cannot be excluded, regardless of the nature of the violation leading to
his identity.” United States v. Del Toro Gudino, 376 F.3d 997, 1001 (9th
Cir. 2004). Here, however, Sanchez seeks to suppress evidence that he
entered the country without inspection. Accordingly, that aspect of
Sanchez’s Form I-213 is suppressible. Because his Family Unity
Benefits and Employment Authorization applications predated the Coast
Guard officers’ actions, they are admissible. See United States v. Crews,
445 U.S. 463, 472 (1980) (concluding that evidence of the victim’s
identity was admissible because it “was known long before there was
any official misconduct, and her presence in court [was] thus not
traceable to any Fourth Amendment violation”). The fruit-of-the-
poisonous-tree doctrine does not extend backwards to taint evidence that
existed before any official misconduct took place. See id. at 475 (“The
exclusionary rule enjoins the Government from benefiting from evidence
it has unlawfully obtained; it does not reach backward to taint
information that was in official hands prior to any illegality.”).
22                 SANCHEZ V. SESSIONS

that petitioners may be entitled to termination of their
removal proceedings without prejudice for egregious
regulatory violations. See Rajah v. Mukasey, 544 F.3d 427,
446–47 (2d Cir. 2008) (holding that pre-hearing regulatory
violations may be grounds for termination without prejudice
if they resulted in “prejudice that may have affected the
outcome of the proceeding, conscience-shocking conduct, or
a deprivation of fundamental rights”). Because Sanchez has
made a prima facie showing that he was detained solely on
the basis of his race and that his detention was contrary to
the requirements of § 287.8(b)(2), we grant his petition for
review and remand for the agency to determine in the first
instance whether termination without prejudice is
appropriate here.

                            A.

    The roots of termination without prejudice may be traced
back to Calderon-Medina, when we first held that regulatory
violations could “invalidate a deportation proceeding.”
591 F.2d at 531. Calderon-Medina concerned criminal
indictments against two defendants for illegal re-entry
following deportation. See id. at 530. The question was
whether the defendants’ original deportations had been the
unlawful product of a regulatory violation, such that they
could not serve as a basis for the defendants’ criminal
indictments. See id. We concluded that although the INS
had violated its own regulation, remand was necessary to
give the defendants an opportunity to show prejudice. See
id. at 532. Because it was impossible to invalidate the
defendants’ original deportations, which were carried out
long before the defendants were criminally indicted for
subsequent re-entry, we instructed the district court to
dismiss the criminal indictments if the defendants
successfully demonstrated prejudice on remand. See id. Put
                      SANCHEZ V. SESSIONS                           23

differently, invalidating the defendants’ deportation
proceedings in Calderon-Medina meant nullifying their
deportations as a legal matter for purposes of their criminal
proceedings.     Our decision, however, did not limit
invalidation of removal proceedings to criminal
indictments. 13

    The BIA’s decision in Garcia-Flores built upon
Calderon-Medina and recognized that certain types of
regulatory violations can “render subsequent agency actions
invalid.” 17 I. & N. Dec. at 328 (emphasis added). This
suggests that the invalidation remedy turns on when in the
process the regulatory violation occurred. Indeed, the
Second Circuit has recognized as much. See Rajah, 544 F.3d
at 446–47 (distinguishing between pre-hearing regulatory
violations and regulatory violations that take place during a
deportation hearing). In Montilla v. INS, 926 F.2d 162 (2d
Cir. 1991), for example, the Second Circuit concluded that
the IJ presiding over Montilla’s hearing violated a regulation
by failing to ask Montilla to state on the record whether he
wished to procure representation. See id. at 169. The court
then granted Montilla’s petition and remanded for a new
hearing. See id. at 170.

    Montilla’s remedy fits cleanly within Garcia-Flores’s
framework for invalidating deportation proceedings: the
regulatory violation took place during the hearing, thereby
invalidating the agency’s actions that took place from the
hearing onwards—but, critically, not any action that took
place before. Montilla was not entitled to termination with
prejudice because his initial presence in removal

    13
       Since then, courts have invalidated removal proceedings by
remanding for new hearings. See, e.g., Montilla v. INS, 926 F.2d 162 (2d
Cir. 1991).
24                  SANCHEZ V. SESSIONS

proceedings was not the product of a disqualifying
regulatory violation. He was, however, entitled to a new
hearing because the IJ’s failure to properly inquire about
representation at the start of his hearing rendered the hearing
itself invalid. By remanding for a new hearing, the Second
Circuit effectively afforded Montilla a new hearing devoid
of any of the regulatory infirmities that had taken place at the
first one.

    Nor is the Second Circuit the only circuit to have
recognized the importance of providing petitioners with a
clean slate on remand. The Seventh Circuit emphasized in
Snajder v. INS, 29 F.3d 1203 (7th Cir. 1994), that the
agency’s interference with the petitioner’s regulatory right
to counsel “call[s] for the prophylactic remedy of vacating
the order of deportation and for writing thereafter on a clean
slate.” Id. at 1207 (emphasis added) (quoting Castaneda-
Delgado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975)).
Because the agency’s actions tainted Snajder’s hearing, the
Seventh Circuit concluded that Snajder’s case “must be
remanded for a new hearing.” Id.

    Applying our sister circuits’ reasoning to this case, we
agree with the Second Circuit that certain kinds of pre-
hearing regulatory violations can be remedied only by
termination without prejudice as opposed to a new hearing.
See Rajah, 544 F.3d at 446–47. Accordingly, we conclude
that a petitioner is entitled to termination of their
proceedings without prejudice as long as the following
requirements are satisfied: (1) the agency violated a
regulation; (2) the regulation was promulgated for the
benefit of petitioners; and (3) the violation was egregious,
meaning that it involved conscience-shocking conduct,
deprived the petitioner of fundamental rights, or prejudiced
the petitioner. See Calderon-Medina, 591 F.2d at 531;
                   SANCHEZ V. SESSIONS                    25

Rajah, 544 F.3d at 447. For this rare subset of cases, simply
remanding for a new hearing or for further proceedings will
be insufficient because the agency’s violations predate any
hearing. Only full termination of the proceedings without
prejudice can “effectively cure[] any procedural defect by
putting the parties into the position they would have been
had no procedural error taken place.” Batanic v. INS,
12 F.3d 662, 667 (7th Cir. 1993).

     We emphasize that this remedy is reserved for truly
egregious cases.       Termination without prejudice is
undoubtedly burdensome; it effectively means that the
agency must hit the reset button and begin deportation
proceedings anew. We also acknowledge that the Supreme
Court has expressed particular concern with the unique costs
of “releas[ing] from custody persons who would then
immediately resume their commission of a crime though
their continuing, unlawful presence in this country.” Lopez-
Mendoza, 468 U.S. at 1050. Nonetheless, we conclude that
the costs of termination without prejudice do not outweigh
its considerable benefits when the Government crosses the
line into conscience-shocking conduct.

    “Careless observance by an agency of its own
administrative processes weakens its effectiveness in the
eyes of the public because it exposes the possibility of
favoritism and of inconsistent application of the law.”
Montilla, 926 F.2d at 170. This is particularly true when the
agency stands accused of singling out persons for detention
and deportation based on race or ethnicity. In such
circumstances, the Government cannot simply rely on the
existence of untainted evidence to continue with removal
proceedings that are “tainted from their roots.” Castaneda-
Delgado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975)
(quoting United States v. Robinson, 502 F.2d 894, 896 (7th
26                    SANCHEZ V. SESSIONS

Cir. 1974)). To permit the Government to pick up where it
left off would not only do a great disserve to petitioners, who
have been subjected to conscience-shocking racial and
ethnic profiling, but also remove from the table an effective
tool for deterrence, specifically, termination without
prejudice.     See Lopez-Mendoza, 468 U.S. at 1043
(acknowledging the reduced “deterrent value of the
exclusionary rule in a civil deportation proceeding”).

                                  B.

    Applying our test for termination without prejudice, we
conclude that Sanchez has made a prima facie showing that
the Coast Guard officers’ violation of § 287.8(b)(2) was
conscience-shocking and therefore egregious. Cf. Omni
Behavioral Health v. Miller, 285 F.3d 646, 652 (8th Cir.
2002) (“If . . . Miller conducted his investigation in order to
harass Woodlawn employees because of their race, it is
possible, if not likely, that such conduct would meet the
‘shock the conscience’ test.”). As discussed earlier, see
supra pp. 15–16, we agree with Sanchez that the record
indicates that the Coast Guard detained him on the basis of
his Latino appearance. 14 The Government, to date, has
offered no explanation for why Coast Guard officers
contacted CBP and detained Sanchez and his companions for
two hours, even after Sanchez produced his driver’s license.
Nor does CBP’s Form I-213 shed much light on the Coast
Guard officers’ motivations that afternoon beyond noting



     14
       Sanchez has also made a prima facie showing that the Coast Guard
violated 8 C.F.R. § 287.8(b)(2) and that the regulation was promulgated
for the benefit of petitioners. See supra pp. 13–20.
                      SANCHEZ V. SESSIONS                           27

that the officers suspected that Sanchez and his companions
were “undocumented worker[] aliens.”

    It is beyond question that detentions and interrogations
based on racial or ethnic profiling and stereotyping
egregiously violate § 287.8(b)(2)’s requirement that all
detentions be based on reasonable suspicion. 15 See, e.g.,
Maldonado v. Holder, 763 F.3d 155, 159 (2d Cir. 2014)
(explaining that a seizure “may nevertheless qualify as an
egregious violation if the stop was based on race (or some
other grossly improper consideration)” (quoting Almeida-
Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006))).
“[W]e have long regarded racial oppression as one of the
most serious threats to our notion of fundamental fairness
and consider reliance on the use of race or ethnicity as a
shorthand for likely illegal conduct to be ‘repugnant under
any circumstances.’” Gonzalez-Rivera v. INS, 22 F.3d 1441,
1449 (9th Cir. 1994) (quoting United States v. Martinez-
Fuerte, 428 U.S. 543, 571 n.1 (1976)). “[D]iscrimination on
the basis of race is illegal, immoral, unconstitutional,
inherently wrong, and destructive of democratic society.”
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521
(1989) (Scalia, J., concurring). When the Government
ignores this country’s commitment to equality and fairness
by engaging in racial and ethnic profiling, it betrays all of its
people—citizens, lawful permanent residents, visitors, and
migrants alike who live within its borders.


     15
        The Government concedes in its brief that a “stop made solely on
the basis of ethnicity constitutes an egregious Fourth Amendment
violation.” Because 8 C.F.R. § 287.8(b)(2) is premised on Fourth
Amendment standards, it follows that such a stop would also egregiously
violate the regulation.
28                   SANCHEZ V. SESSIONS

    We emphasize that race and ethnicity alone can never
serve as the basis for reasonable suspicion. The violation
alleged by Sanchez here is egregious both for its grotesque
nature and its patent unlawfulness. We therefore conclude
that Sanchez has made a prima facie showing of an egregious
violation of 8 C.F.R. § 287.8(b)(2). 16

                                V.

    When Sanchez first decided to gather his friends for a
fishing trip on his boat, he could never have imagined that
the short excursion would ensnare him in removal
proceedings. Sanchez has since introduced evidence
suggesting that the Coast Guard’s decision to detain him was
based on his race alone in contravention of 8 C.F.R.
§ 287.8(b)(2)’s requirements. Nonetheless, because the
Government has not yet had an opportunity to introduce
evidence rebutting Sanchez’s prima facie showing that the
Government egregiously violated the regulation, we grant
Sanchez’s petition and remand for further proceedings. On
remand, the agency shall afford the Government an
opportunity to rebut Sanchez’s prima facie showing that
there was both a regulatory violation and that the violation
was egregious. If the Government fails to rebut Sanchez’s
showing that the violation was egregious, the agency shall
consider whether Sanchez is entitled to termination without
prejudice.

  PETITION           FOR     REVIEW         GRANTED          AND
REMANDED.



   16
      Consequently, we need not consider whether the Coast Guard and
CBP officers also violated other regulations.
                   SANCHEZ V. SESSIONS                    29

PAEZ, Circuit Judge, concurring:

    In our prior panel opinion, Judge Pregerson wrote a
separate concurrence expressing his frustration with the
Government practice of encouraging noncitizens to apply for
immigration relief, and later using that information against
noncitizens in removal proceedings. See Sanchez v.
Sessions, 870 F.3d 901, 913–14 (9th Cir. 2017) (Pregerson,
concurring), withdrawn, 895 F.3d 1101 (9th Cir. 2018). I
share these concerns about the dilemma created by the
Government’s contradictory positions.

    On the one hand, when the Government enacts
immigration relief programs—such as driver’s licenses,
deferred action, and work authorization—it encourages
noncitizens to apply and thereby provide the Government
with personal information. See Plyler v. Doe, 457 U.S. 202,
220 (1982) (noting 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.”). On the other hand, the Government could at a later
date use that personal information against noncitizens—as
was the case here with Sanchez. Maj. Op. at 21 fn.12. As a
result, many noncitizens are reluctant to “com[e] out of the
shadows” and “step[] into the potential net of immigration
enforcement.” See Angélica Cházaro, Challenging the
“Criminal Alien” Paradigm, 63 UCLA L. Rev. 594, 642–43
(2016). I agree with Judge Pregerson that the Government’s
practice in this regard contradicts the nation’s longstanding
principle of welcoming immigrants into our communities.

   Judge Pregerson’s concurrence is quoted in full below:

          I write separately to explain why it is
       unfair for the Government to encourage
       noncitizens to apply for immigration relief,
30              SANCHEZ V. SESSIONS

     and at a later date use statements in those
     relief applications against noncitizens in
     removal proceedings.

         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
           SANCHEZ V. SESSIONS                   31

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           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
32                 SANCHEZ V. SESSIONS

       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.

See Sanchez, 870 F.3d at 913–14 (Pregerson, concurring).
