     11-2867-ag
     Jose Pretzantzin, et al. v. Holder

 1                    UNITED STATES COURT OF APPEALS
 2
 3                         FOR THE SECOND CIRCUIT
 4
 5
 6
 7                            August Term, 2012
 8
 9   (Argued: Thursday, March 14, 2013   Decided: July 31, 2013
10                      Amended: September 16, 2013)
11
12                          Docket No. 11-2867-ag
13
14
15       JOSE MATIAS PRETZANTZIN, AKA JOSE M. PRETZANTZIN-YAX,
16    PACHECO PRETZANTZIN, AKA SANTOS RAMIRO PRETZANTZIN, PEDRO
17   ESTANISLADO PRETZANTZIN, PEDRO LEONARDO PACHECO LOPEZ, JUAN
18     MIGUEL PRETZANTLIN-YAX, AKA JUAN MIGUEL PRETZANTZIN-YAX,
19
20                              Petitioners,
21
22                                    v.
23
24       ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,
25
26                               Respondent.*
27
28
29
30   Before:
31       WESLEY, DRONEY, Circuit Judges, NATHAN, District Judge.**
32

          *
            The Clerk of Court is directed to amend the official
     caption to conform to the listing of the parties stated above.
          **
            The Honorable Alison J. Nathan, of the United States
     District Court for the Southern District of New York, sitting by
     designation.
 1        Petitioners appeal from the December 17, 2010 decision
 2   of the Board of Immigration Appeals (the “BIA”) reversing
 3   the Immigration Judge’s prior grant of Petitioners’ motion
 4   to suppress evidence obtained in egregious violation of
 5   Petitioners’ Fourth Amendment rights and terminate their
 6   removal proceedings. The BIA determined that evidence of
 7   Petitioners’ identities was not suppressible under the
 8   Supreme Court’s decision in INS v. Lopez-Mendoza, 468 U.S.
 9   1032 (1984), and that, in any event, the Government had
10   acquired independent evidence of alienage by obtaining
11   Petitioners’ birth certificates. Because we find that
12   Lopez-Mendoza confirmed an existing jurisdictional rule,
13   rather than announcing a new evidentiary rule, the BIA erred
14   in concluding that the Government had met its burden of
15   establishing that certain alienage-related evidence had been
16   obtained independent of any constitutional violation. The
17   Government having had the opportunity to show that the
18   alienage-related evidence was obtained from an independent
19   source, and having explicitly chosen not to do so, we VACATE
20   and REMAND the BIA’s decision with instructions to reach
21   only the issue of whether Government agents seized evidence
22   of alienage from Petitioners in the course of committing an
23   egregious Fourth Amendment violation.

24       VACATED AND REMANDED.
25
26
27
28            ANNE PILSBURY (Heather Y. Axford, on the brief),
29                 Central American Legal Assistance, Brooklyn,
30                 NY, for Petitioners.
31
32            MATTHEW GEORGE, Trial Attorney, Office of
33                 Immigration Litigation, Civil Division (Stuart
34                 F. Delery, Acting Assistant Attorney General,
35                 Civil Division, Douglas E. Ginsburg, Assistant
36                 Director, Office of Immigration Litigation, on
37                 the brief), United States Department of
38                 Justice, Washington, DC, for Respondent.
39
40            Elaine J. Goldenberg, Matthew E. Price, Jenner &
41                 Block LLP, Washington, DC; Omar C. Jadwat,
42                 American Civil Liberties Union Foundation,
43                 Immigrants’ Rights Project, New York, NY, for


                                  2
 1                  Amicus Curiae American Civil Liberties Union
 2                  Foundation.
 3

 4   WESLEY, Circuit Judge:

 5        In the early morning hours of March 5, 2007, Petitioner

 6   Pedro Estanislado Pretzantzin (“Estanislado Pretzantzin”)

 7   awoke to a loud banging; he opened his third-floor bedroom

 8   window to see a group of armed, uniformed officers at his

 9   apartment building’s front door in Jamaica, New York.1      The

10   officers were from the Department of Homeland Security

11   (“DHS”) and worked for Immigrations and Customs Enforcement

12   (“ICE”).   Estanislado Pretzantzin shared the apartment with

13   members of his extended family, including Petitioners Jose

14   Matias Pretzantzin, Pacheco Pretzantzin, Pedro Pacheco-Lopez

15   (“Pacheco-Lopez”), and Juan Miguel Pretzantlin-Yax.2

16   Through the open window, the officers informed Estanislado

17   Pretzantzin that they were “the police” and ordered him

18



          1
            The factual record in this case is somewhat sparse because
     the Government declined to make an evidentiary proffer concerning
     the circumstances of Petitioners’ arrests. The following facts
     are taken from Petitioners’ testimony and supporting affidavits,
     which the agency found credible.
          2
           Santiago Pretzantzin-Yax has since voluntarily left the
     United States; he is not a petitioner for purposes of this
     appeal.

                                     3
 1   downstairs to open the door.    Estanislado Pretzantzin

 2   complied.

 3       After confirming that he lived on the third floor, one

 4   of the officers led Estanislado Pretzantzin back upstairs

 5   and ordered him to allow the other officers inside.       At no

 6   point during the encounter did the officers explain their

 7   presence, present a warrant, or request consent to enter the

 8   apartment.    Once inside, ICE officers rounded up the

 9   remaining Petitioners, who were asleep in their beds,

10   assembled them in the living room, and demanded to see their

11   “papers.”    It appears that only Pacheco-Lopez – the sole

12   Petitioner who had a passport – was able to comply with the

13   officers’ directive.    The officers did not ask Estanislado

14   Pretzantzin whether he had legal status in the United States

15   before arresting him.

16       All Petitioners were handcuffed and transported to ICE

17   facilities at 26 Federal Plaza, in New York City, where they

18   were notified for the first time that they were in the

19   custody of immigration officials.    ICE officers interviewed

20   Petitioners and told them to sign statements that were not

21   read to them in English (which Petitioners speak minimally

22   if at all); these statements were subsequently memorialized


                                    4
 1   on Form I-213s (Record of Deportable/Inadmissible Alien).

 2   Petitioners were released from custody later that afternoon

 3   and served with Notices to Appear, charging them with

 4   removability under Immigration and Nationality Act (“INA”) §

 5   212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as natives and

 6   citizens of Guatemala who had entered the United States

 7   without inspection.

 8       Following consolidation of their proceedings,

 9   Petitioners appeared before Immigration Judge George T. Chew

10   (the “IJ”) and conceded that they were the individuals named

11   in the Notices to Appear, but denied the charges of

12   removability and moved to suppress the evidence against them

13   and terminate their proceedings.     Petitioners argued that

14   they were entitled to the suppression of all statements and

15   evidence obtained as a consequence of the nighttime,

16   warrantless raid of their home under the Fourth and Fifth

17   Amendments.    In opposition, the Government argued, inter

18   alia, that it possessed independent evidence of Petitioners’

19   alienage.     Specifically, the Government claimed that it had

20   obtained Petitioners’ Guatemalan birth certificates from the

21   United States Embassy in Guatemala using Petitioners’ names,

22   and that it also had Petitioner Pacheco-Lopez’s criminal


                                     5
 1   history report, arrest record, and fingerprint card from a

 2   1994 theft of services conviction for subway-turnstile

 3   jumping.   The arrest report listed Guatemala as Pacheco-

 4   Lopez’s birthplace.

 5        The Government ostensibly relied on the admission in

 6   Petitioners’ motion to suppress (indicating that Petitioners

 7   were related) and Pacheco-Lopez’s arrest records (confirming

 8   that he was born in Guatemala) to target the United States

 9   Embassy in Guatemala for the birth certificate request.      In

10   connection with Petitioners’ birth certificates, the

11   Government proffered a Federal Express delivery record label

12   for a package sent from ICE’s facilities at 26 Federal Plaza

13   to the United States Embassy in Guatemala, but it did not

14   submit a copy of the actual birth certificate request or any

15   other evidence bearing on the package’s contents.      Following

16   Petitioners’ testimony at a subsequent suppression hearing,3

17   the IJ invited the Government to proffer a warrant,

18   statements from the officers, or any other evidence to

19   justify their intrusion into Petitioners’ home.      The

20   Government, however, declined to do so and explicitly

          3
            Pacheco-Lopez and Estanislado Pretzantzin were the only
     Petitioners to testify at the merits hearing. The IJ found their
     testimony credible and declined to take additional testimony from
     the remaining Petitioners, concluding that it would be
     repetitive.

                                    6
 1   disavowed any reliance on Petitioners’ Form I-213s, choosing

 2   to rely instead on Petitioners’ birth certificates and

 3   Pacheco-Lopez’s arrest records as the sole evidence of

 4   alienage.

 5       In June 2008, the IJ granted Petitioners’ motion to

 6   suppress the Government’s evidence of alienage and terminate

 7   the proceedings, finding that the nighttime, warrantless

 8   entry into their home and resulting arrests constituted an

 9   egregious violation of Petitioners’ Fourth and Fifth

10   Amendment rights.   Having found Petitioners’ testimony and

11   supporting affidavits sufficient to establish a prima facie

12   case for suppression, the IJ reasoned that the Government’s

13   failure to offer any justification for the conduct of its

14   agents resolved the issue in Petitioners’ favor.   The IJ

15   also rejected the Government’s contention that Petitioners’

16   birth certificates and Pacheco-Lopez’s arrest records

17   constituted independent evidence of alienage, finding that

18   this evidence could only have been obtained through the use

19   of evidence illegally procured as a result of the raid of

20   Petitioners’ home, namely, Pacheco-Lopez’s passport and

21   Petitioners’ statements.

22


                                   7
 1       The Government appealed.       In a December 17, 2010 order,

 2   the BIA vacated the IJ’s decision.      In re Jose Matias

 3   Pretzantizin, et al., Nos. A097 535 298/296/297/299/300/301

 4   (B.I.A. Dec. 17, 2010).   Relying on INS v. Lopez-Mendoza,

 5   468 U.S. 1032 (1984), for the proposition that identity is

 6   never suppressible as the fruit of an unlawful arrest, the

 7   BIA found that it need not determine whether Petitioners

 8   suffered an egregious violation of their constitutional

 9   rights because their birth certificates and Pacheco-Lopez’s

10   arrest records were obtained after the Government had

11   determined their identities.   The BIA explained that

12   Petitioners’ birth certificates were obtained from

13   Guatemalan authorities using Petitioners’ insuppressible

14   identities; the BIA offered no similar justification for the

15   independence of Pacheco-Lopez’s arrest records.      Lastly,

16   although the Government had expressly declined to rely on

17   Petitioners’ Form I-213s before the IJ, the BIA found this

18   evidence admissible because Petitioners had not argued that

19   their statements were “untrue or unreliable.”      In re

20   Pretzantizin, A097 535 298, at 2.

21       Petitioners were subsequently ordered removed to

22   Guatemala and have timely petitioned for review.


                                    8
 1                             Discussion4

 2        “The general rule in a criminal proceeding is that

 3   statements and other evidence obtained as a result of an

 4   unlawful, warrantless arrest are suppressible if the link

 5   between the evidence and the unlawful conduct is not too

 6   attenuated.”    Lopez-Mendoza, 468 U.S. at 1040-41 (citing

 7   Wong Sun v. United States, 371 U.S. 471 (1963)).      “[T]he

 8   exclusionary sanction applies to any ‘fruits’ of a

 9   constitutional violation – whether such evidence be

10   tangible, physical material actually seized in an illegal

11   search, items observed or words overheard in the course of

12   the unlawful activity, or confessions or statements of the

13   accused obtained during an illegal arrest and detention.”

14   United States v. Crews, 445 U.S. 463, 470 (1980) (internal

15   citations omitted).   Outside of the criminal context,

16   however, the applicability of the exclusionary rule becomes

17   less certain.   Lopez-Mendoza, 468 U.S. at 1041.

18


          4
            The standards of review here are neither contested nor
     determinative. We review only the decision of the BIA reversing
     the IJ’s grant of suppression and termination, see Yan Chen v.
     Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), and review the
     agency’s factual findings for substantial evidence and issues of
     law de novo. See 8 U.S.C. § 1252(b)(4)(B); Almeida-Amaral v.
     Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006).

                                    9
 1        In Lopez-Mendoza, the Supreme Court held that a Fourth

 2   Amendment violation does not, standing alone, justify the

 3   suppression of evidence in the course of a civil deportation

 4   proceeding, id. at 1050; this Court has since interpreted

 5   Lopez-Mendoza to allow suppression following an egregious

 6   violation, see Almeida-Amaral v. Gonzalez, 461 F.3d 231, 235

 7   (2d Cir. 2006).   Today, as discussed in a companion case

 8   argued in tandem with the case at bar, Doroteo Sicajau

 9   Cotzojay v. Holder, No. 11-4916-ag, – F.3d –, – (2d Cir.

10   2013), we confirm what the BIA and other courts have already

11   recognized:   A nighttime, warrantless raid of a person’s

12   home by government officials may, and frequently will,

13   constitute an egregious violation of the Fourth Amendment

14   requiring the application of the exclusionary rule in a

15   civil deportation hearing.    See Matter of Guevara-Mata, No.

16   A097 535 291 (B.I.A. June 14, 2011);5 Oliva-Ramos v. Att’y

17   Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012).

18        In the instant case, the BIA did not reach the question

19   of whether there was an egregious violation of the Fourth

20   Amendment, but instead predicated its reversal of the IJ’s


          5
            Available at
     http://66.147.244.126/~centrbq3/wp-content/uploads/2012/04/BIA-de
     cision-Guevara-Mata.pdf.

                                    10
 1   grant of suppression on a finding that Petitioners’ birth

 2   certificates and Pacheco-Lopez’s arrest records were

 3   independently obtained through the use of only their names.

 4   To reach this result, the BIA relied on Lopez-Mendoza’s

 5   statement that “[t]he ‘body’ or identity of a defendant or

 6   respondent in a criminal or civil proceeding is never itself

 7   suppressible as a fruit of an unlawful arrest,” 468 U.S. at

 8   1039 (“Lopez-Mendoza’s identity statement”).     The task then

 9   is to discern the meaning of this statement that “has

10   bedeviled and divided our sister circuits.”     United States

11   v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007).6      For

12   the reasons that follow, we join the Fourth, Eighth, and

13   Tenth Circuits in finding that Lopez-Mendoza reaffirmed a

14   long-standing rule of personal jurisdiction; it did not

15   create an evidentiary rule insulating specific pieces of

16   identity-related evidence from suppression.

17


          6
            See Oscar-Torres, 507 F.3d at 228 (comparing United States
     v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006)
     (interpreting Lopez-Mendoza as merely reiterating long-standing
     jurisdictional rule), and United States v. Guevara-Martinez, 262
     F.3d 751, 754-55 (8th Cir. 2001) (same), with United States v.
     Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006) (interpreting Lopez-
     Mendoza as barring suppression of evidence of identity), United
     States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005) (same),
     and United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th
     Cir. 1999) (same)).

                                    11
 1   INS v. Lopez-Mendoza

 2       The jurisdictional nature of Lopez-Mendoza’s identity

 3   statement is evidenced by both the context in which it was

 4   made and the authority upon which it relied.       In Lopez-

 5   Mendoza, the Supreme Court reviewed challenges in two civil

 6   deportation proceedings, each of which were commenced

 7   following unlawful arrests.    468 U.S. at 1034.    In the first

 8   proceeding, respondent Adan Lopez-Mendoza did not seek

 9   suppression of any specific piece of evidence and, instead,

10   “objected only to the fact that he had been summoned to a

11   deportation hearing following an unlawful arrest.”       Id. at

12   1040.   The Supreme Court easily dispensed with Lopez-

13   Mendoza’s challenge to the validity of the proceedings

14   against him because “[t]he mere fact of an illegal arrest

15   has no bearing on a subsequent deportation proceeding.”        Id.

16   (alteration in original and internal quotation marks

17   omitted).    It was in this context that the Supreme Court

18   stated that “[t]he ‘body’ or identity of a defendant or

19   respondent in a criminal or civil proceeding is never itself

20   suppressible as a fruit of an unlawful arrest, even if it is

21   conceded that an unlawful arrest, search, or interrogation

22   occurred.”    Id. at 1039 (citations omitted).



                                    12
 1       In the second proceeding, respondent Elias Sandoval-

 2   Sanchez moved to suppress his Form I-213 (Record of

 3   Deportable/Inadmissible Alien), which memorialized

 4   incriminating post-arrest statements relating to his

 5   immigration status and place of birth.    Id. at 1037-38,

 6   1040; Lopez-Mendoza v. INS, 705 F.2d 1059, 1062 (9th Cir.

 7   1983), rev’d, 468 U.S. 1032 (1984).    The Court observed that

 8   Sandoval-Sanchez had “a more substantial claim” because

 9   “[h]e objected not to his compelled presence at a

10   deportation proceeding, but to evidence offered at that

11   proceeding.”   468 U.S. at 1040.   Accordingly, the Court

12   considered whether the exclusionary rule should apply to

13   prohibit the Government from using illegally obtained

14   evidence of Sandoval-Sanchez’s alienage against him in

15   deportation proceedings.   Id. at 1040-41.   The Court

16   ultimately found the exclusionary rule inapplicable in

17   Sandoval-Sanchez’s case after weighing the likely social

18   benefits and costs pursuant to the framework established in

19   United States v. Janis, 428 U.S. 433 (1976).    Lopez-Mendoza,

20   468 U.S. at 1050.

21       The Court’s differing treatment of Lopez-Mendoza’s

22   personal jurisdiction challenge and Sandoval-Sanchez’s

23   evidentiary challenge, and the corresponding omission of any

                                   13
 1   identity-related considerations from the evaluation of the

 2   latter claim, show that Lopez-Mendoza’s identity statement

 3   merely confirmed the jurisdictional rule that an unlawful

 4   arrest has no bearing on the validity of a subsequent

 5   proceeding; the Court did not announce a new rule insulating

 6   all identity-related evidence from suppression.     See Oscar-

 7   Torres, 507 F.3d at 228-29; United States v.

 8   Olivares-Rangel, 458 F.3d 1104, 1111 (10th Cir. 2006);

 9   United States v. Guevara-Martinez, 262 F.3d 751, 754 (8th

10   Cir. 2001).   After all, if Lopez-Mendoza’s identity

11   statement – applicable to both criminal and civil

12   proceedings, 486 U.S. at 1039-40 – was intended as a rule of

13   evidence, it would have been impracticable for the Court to

14   employ a cost-benefit analysis in deciding whether to apply

15   the exclusionary rule to Sandoval-Sanchez’s civil

16   deportation proceedings without first determining whether

17   the statements he sought to suppress were identity-related

18   evidence.

19       The jurisdictional nature of Lopez-Mendoza’s identity

20   statement is further evidenced by the authorities it

21   employed, which relate to the long-standing Ker-Frisbie

22   doctrine – providing that an illegal arrest does not divest

23   the trial court of jurisdiction over the defendant or

                                   14
 1   otherwise preclude trial.   See id. at 1039-40 (citing, inter

 2   alia, Frisbie v. Collins, 342 U.S. 519, 522 (1952) and

 3   Gerstein v. Pugh, 420 U.S. 103, 119 (1975)); see also

 4   Olivares-Rangel, 458 F.3d at 1110-11 (recognizing Lopez-

 5   Mendoza’s identity statement as an application of the Ker-

 6   Frisbie doctrine); accord Oscar-Torres, 507 F.3d at 228-29.

 7   In Ker v. Illinois, the Supreme Court first considered the

 8   effect of an unlawful taking of custody on the validity of a

 9   subsequent proceeding; the Court concluded that due process

10   was not violated when a defendant was kidnaped in Peru and

11   forcibly returned to Illinois to stand trial.   119 U.S. 436,

12   438-40 (1886).   Due process did not restrict the methods

13   employed to bring the defendant before the court; it

14   governed what happened once he was there.   The Court

15   reasoned that due process “is complied with when the party

16   is regularly indicted by the proper grand jury in the state

17   court, has a trial according to the forms and modes

18   prescribed for such trials, and when, in that trial and

19   proceedings, he is deprived of no rights to which he is

20   lawfully entitled.”   Id. at 440.

21       More than sixty years later, in Frisbie, the Supreme

22   Court refused to depart from Ker when faced with a due

23   process challenge by a defendant who was abducted in

                                   15
 1   Illinois and taken to Michigan for trial, noting that

 2   “[t]here is nothing in the Constitution that requires a

 3   court to permit a guilty person rightfully convicted to

 4   escape justice because he was brought to trial against his

 5   will.”   342 U.S. at 522; see also Gerstein, 420 U.S. at 119

 6   (declining to “retreat from the established rule that

 7   illegal arrest or detention does not void a subsequent

 8   conviction”).   Lopez-Mendoza’s reliance on the Ker-Frisbie

 9   line of authority in support of its identity statement

10   leaves no doubt that the Court was referencing the long-

11   standing jurisdictional rule that an unlawful arrest has no

12   bearing on the validity of a subsequent proceeding rather

13   than announcing a new rule insulating all identity-related

14   evidence from suppression.

15        Contemporary case law confirms our view.     A

16   jurisdictional reading of Lopez-Mendoza’s identity statement

17   is compelled by the Supreme Court’s recent decision in

18   Maryland v. King, 133 S. Ct. 1958 (2013).7     In King, the



          7
            The Government raised King in a Rule 28(j) Letter for the
     purpose of demonstrating that Petitioners’ birth certificates and
     Pacheco-Lopez’s arrest records were independently obtained
     through their insuppressible identities. However, we think that
     King’s treatment of identity-related evidence resolves any doubt
     that Lopez-Mendoza’s mandate is jurisdictional rather than
     evidentiary.

                                    16
 1   Supreme Court examined the inventory or booking search

 2   exception to the Fourth Amendment’s warrant requirement and

 3   found that a criminal defendant was not subjected to an

 4   unreasonable search and seizure when a sample of his DNA was

 5   taken, pursuant to the Maryland DNA Collection Act,

 6   following a lawful arrest for a serious offense that was

 7   supported by probable cause.     Id. at 1980.   In reaching this

 8   result, the Court identified the legitimate government

 9   interest served by Maryland’s DNA Collection Act as “the

10   need for law enforcement officers in a safe and accurate way

11   to process and identify the persons and possessions they

12   must take into custody,” id. at 1970, and concluded that

13   “[w]hen probable cause exists to remove an individual from

14   the normal channels of society and hold him in legal

15   custody, DNA identification plays a critical role in serving

16   those interests,” id. at 1971.      Importantly, we note that

17   the inventory or booking search exception to the Fourth

18   Amendment’s warrant requirement is not implicated on the

19   facts of the case at bar because, unlike in King,

20   Petitioners were not subjected to lawful arrests based on

21   probable cause.   Indeed, here the IJ explicitly found that

22


                                    17
1   Petitioners’ arrests constituted unlawful seizures under the

2   Fourth Amendment.8

3        Still, we find King’s description of identity-related

4   evidence telling.    In finding that “name alone cannot

5   address [the government’s] interest in identity,” the Court

6   noted that other relevant forms of identification include

7   fingerprints, “name, alias, date and time of previous

8   convictions and the name then used, photograph, Social


         8
           The Government’s Brief includes a parenthetical citation
    to United States v. Adegbite, 846 F.2d 834 (2d Cir. 1988), a case
    the Government referenced during oral argument, for the
    proposition that “the identity [specifically, the name] of
    defendants is not suppressible under the exclusionary rule.”
    Resp. Br. at 15 (quoting Adegbite, 846 F.2d at 838-39). In
    Adegbite, this Court determined that “the solicitation of
    information concerning a person’s identity and background does
    not amount to custodial interrogation prohibited by Miranda,” 846
    F.2d at 838 – a statement largely irrelevant to this appeal.
    Initially, given the Government’s inadequate briefing regarding
    any potential application of the pedigree exception discussed in
    Adegbite, we consider the argument to be waived. See Tolbert v.
    Queens Coll., 242 F.3d 58, 75-76 (2d Cir. 2001).
         Regardless, we would deem the pedigree exception to be
    inapplicable; it is focused on protecting “basic information
    needed to facilitate the booking and arraigning of a suspect”
    from suppression as a result of a Miranda violation following a
    valid arrest. United States v. Carmona, 873 F.2d 569, 573 (2d
    Cir. 1989) (citing United States v. Gotchis, 803 F.2d 74, 78-79
    (2d Cir. 1986) and United States ex rel. Hines v. LaVallee, 521
    F.2d 1109, 1112-13 (2d Cir. 1975)). The concerns inherent within
    the pedigree exception to Miranda violations – supplying
    incriminating but identifying information without being warned of
    the consequences – do not line up well with the circumstances of
    Petitioners’ constitutional claim that they were seized in their
    home without consent and without probable cause. There is no
    reason to consider engrafting an exception to the protections of
    the Fifth Amendment onto Petitioners’ Fourth Amendment claims.

                                   18
 1   Security number, or [DNA] profile.”    Id. at 1972.   This

 2   broad concept of “identity,” when read in conjunction with

 3   the Government’s proffered interpretation of Lopez-Mendoza’s

 4   identity statement as precluding the suppression of all

 5   identity-related evidence, would render the inventory or

 6   booking search exception to the Fourth Amendment’s warrant

 7   requirement superfluous.    After all, if DNA is identity-

 8   related evidence, and Lopez-Mendoza precludes the

 9   suppression of all identity-related evidence, then why

10   bother to couch Maryland’s DNA Collection Act within the

11   booking exception at all?    And if identity-related evidence

12   includes fingerprints, and Lopez-Mendoza precludes the

13   suppression of all identity-related evidence, then what are

14   we to make of controlling precedent mandating the

15   suppression of this insuppressible evidence?    See, e.g.,

16   Hayes v. Florida, 470 U.S. 811, 816-17 (1985) (holding

17   fingerprints properly suppressed when defendant was arrested

18   without probable cause, taken to police station without

19   consent, and detained and fingerprinted for investigatory

20   purposes); Taylor v. Alabama, 457 U.S. 687, 692-93 (1982)

21   (concluding that “[t]he initial fingerprints [] were

22   themselves the fruit of petitioner’s illegal arrest . . . .”


                                    19
 1   (citation omitted)); accord Davis v. Mississippi, 394 U.S.

 2   721, 727 (1969).   Given such peculiar consequences, it is

 3   clear that we cannot read Lopez-Mendoza’s identity statement

 4   as establishing a rule of evidence.

 5   Jurisdictional Identity Evidence is Not Suppressible

 6       Although Lopez-Mendoza’s identity statement merely

 7   confirmed a long-standing rule of personal jurisdiction,

 8   that does not resolve the matter.     Lopez-Mendoza’s

 9   jurisdictional rule has unavoidable, practical evidentiary

10   consequences.9   Because an individual cannot escape a

11   tribunal’s power over his “body” despite being subject to an

12   illegal seizure en route to the courthouse, he cannot

13   contest that he is, in fact, the individual named in the

14   charging documents initiating proceedings.     See United

15   States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004).

16   Thus, a person’s “identity,” insofar as necessary to

17   identify the individual subject to judicial proceedings, is

18   not suppressible on a purely practical level.

         9
           The Government argues that one of these consequences is
     allowing Petitioners to “immunize themselves from the
     consequences of their continuing violation of law.” Resp. Br. at
     11. The Supreme Court’s recent confirmation that “[a]s a general
     rule, it is not a crime for a removable alien to remain present
     in the United States,” alleviates any concerns we harbor with
     respect to this claim. Arizona v. United States, 132 S. Ct.
     2492, 2505 (2012) (citing Lopez-Mendoza, 468 U.S. at 1038).

                                   20
 1        The obvious element of identity that falls within this

 2   category is one’s name.    In this case, Petitioners freely

 3   concede that they are the individuals charged in the Notices

 4   to Appear and they do not argue that their names should be

 5   suppressed following an egregious Fourth Amendment

 6   violation.10    A more difficult question is what other

 7   identity evidence, if any, is necessary to identify the

 8   individual for jurisdictional purposes, and is thus not

 9   suppressible on a purely practical level.     However, the

10   Court need not reach that question because the Government

11   repeatedly contends that the names alone were sufficient to

12   obtain the additional evidence at issue.     Resp. Br. at 7-8,

13   22, 25.   There is no need to decide where identity ends and

14   alienage begins.    Therefore, we will hold the Government to

15   its position.

          10
            The Government argues that even if this Court requires
     suppression of Petitioners’ identity information, Petitioners
     will be required to admit or deny the allegations and charges in
     any future Notices to Appear pursuant to 8 C.F.R. § 1240.10(c),
     and that if they deny the charges, the Government may question
     them under oath and the agency may draw adverse inferences if
     Petitioners remain silent. Resp. Br. at 10-11 & 10 n.1. The
     Government is correct that Section 1240.10(c) provides that an
     “immigration judge shall require the respondent to plead to the
     notice to appear,” 8 C.F.R. § 1240.10(c), and that “under certain
     circumstances, an adverse inference may indeed be drawn from a
     respondent’s silence in deportation proceedings,” Matter of
     Guevara, 20 I. & N. Dec. 238, 241 (B.I.A. 1990). However, as
     Petitioners point out, the BIA has also held that “silence alone
     does not provide sufficient evidence, in the absence of any other
     evidence of record at all, to establish a prima facie case of
     alienage.” Id. at 242.

                                    21
 1   Independent Evidence

 2       The BIA determined that Petitioners’ birth certificates

 3   constituted independent evidence of alienage because they

 4   were obtained solely through the use of Petitioners’

 5   insuppressible identities.     In assessing whether evidence

 6   was independently obtained, we must determine “whether,

 7   granting establishment of the primary illegality, the

 8   evidence to which instant objection is made has been come at

 9   by exploitation of that illegality or instead by means

10   sufficiently distinguishable to be purged of the primary

11   taint.”     Wong Sun, 371 U.S. at 488 (internal quotation marks

12   omitted).    And where, as here, Petitioners have established

13   a prima facie case for suppression, the Government must

14   “assume the burden of justifying the manner in which it

15   obtained the evidence.”     Matter of Barcenas, 19 I. & N. Dec.

16   609, 611 (B.I.A. 1988) (internal quotation marks omitted).

17       The Government maintained before the agency and at oral

18   argument that ICE procured Petitioners’ birth certificates

19   using only their names.     But the arguments of counsel are

20   not evidence, Matter of Ramirez-Sanchez, 17 I. & N. Dec.

21   503, 506 (B.I.A. 1980), and the Government failed to make

22   any evidentiary proffer demonstrating the basis for


                                     22
 1   Petitioners’ birth certificate request.    Moreover, we note

 2   that the Government’s claim that the request was based on

 3   names alone was dubiously supported by only a Federal

 4   Express package label, but not by the actual letter ICE sent

 5   to the United States Embassy in Guatemala.    In addition, the

 6   Government’s post-argument Rule 28(j) Letter stating that

 7   “it was proper for the government to use aspects of

 8   [Petitioners’] identity other than simply their names – such

 9   as birth date and even place of birth – to obtain their

10   Guatemalan birth certificates,” would appear to further

11   undermine the Government’s contention.    Given that the

12   record before the IJ contained no evidence documenting the

13   basis for Petitioners’ birth certificate request, we find

14   that the BIA erred by concluding that the Government had met

15   its burden of establishing that Petitioners’ birth

16   certificates constituted independent evidence of alienage.

17   See Wong Sun, 371 U.S. at 488; Barcenas, 19 I. & N. Dec. at

18   611.

19          The Government argues that it already possessed

20   independent evidence of Pacheco-Lopez’s alienage prior to

21   any constitutional violation, in the form of his arrest

22   records that were merely linked to him using his name, but

23   the record is equally silent concerning the procurement of

                                    23
 1   those records.   The Government relies on Reyes-Basurto v.

 2   Holder, a non-precedential summary order in which we

 3   previously affirmed the denial of a motion to suppress

 4   evidence on this linkage rationale.    See 477 F. App’x 788,

 5   789 (2d Cir. 2012).   In Reyes-Basurto, the petitioner sought

 6   to suppress his Border Patrol records and a Form I-140

 7   (Petition For Alien Worker) that were necessarily already in

 8   the possession of immigration officials.    See id. at 789.

 9   In affirming the denial of suppression, we reasoned that

10   Reyes-Basurto’s pre-existing immigration records made him “a

11   ‘suspect’ in regards to removability even before his

12   [illegal] arrest.”    Id. at 789 (analogizing to Crews, 445

13   U.S. at 476, in which the Court declined to suppress an in-

14   court witness identification because “the robbery

15   investigation had already focused on [Crews], and the police

16   had independent reasonable grounds to suspect his

17   culpability” prior to any Fourth Amendment violation).

18       This rationale does not apply with equal force to

19   Pacheco-Lopez, whose alienage-related evidence was in the

20   possession of a municipal transit police department rather

21   than immigration officials.    See Davis, 394 U.S. 721; see

22   also Crews, 445 U.S. at 476 (“Had it not been for Davis’

23   illegal detention, however, his prints would not have been

                                    24
 1   obtained and he would never have become a suspect.”).        In

 2   any event, given that the Government failed to proffer any

 3   evidence demonstrating how Pacheco-Lopez’s records were

 4   obtained, we are unable to find that this evidence was

 5   linked to him through the use of his name alone, and,

 6   therefore, we find that the BIA erred in concluding that the

 7   Government had met its burden of establishing that this

 8   evidence was independent of any constitutional violation.

 9

10                            Conclusion

11       For the foregoing reasons, the decision of the Board of

12   Immigration Appeals is hereby VACATED and REMANDED.     Because

13   the BIA declined to answer the question of whether

14   Petitioners sustained an egregious Fourth Amendment

15   violation, we do not reach this issue.     However, we note

16   that fact-finding with respect to the circumstances under

17   which ICE officers entered Petitioners’ home and seized

18   Petitioners has been completed.   The Government had an

19   opportunity to respond to Petitioners’ prima facie case for

20   suppression and explicitly chose not to.     Likewise, the

21   Government had an opportunity to submit proof showing

22   exactly how it obtained Pacheco-Lopez’s arrest records and



                                  25
 1   Petitioners’ birth certificates.    The Government failed to

 2   do so; the evidence proffered is inadequate to support the

 3   Government’s claim that it relied on Petitioners’ names

 4   alone in securing their birth certificates from the United

 5   States Embassy in Guatemala.

 6       Accordingly, we remand this case for the BIA to reach

 7   the issue of whether Government agents seized evidence of

 8   alienage from Petitioners in the course of committing an

 9   egregious Fourth Amendment violation. Should any questions

10   over the nature of the constitutional violation linger, we

11   direct the agency to the opinion issued in a companion case

12   also decided today, in which we were persuaded that the

13   facts as alleged by the alien and similar to those in this

14   case portrayed an egregious Fourth Amendment violation.     See

15   Doroteo Sicajau Cotzojay v. Holder, No. 11-4916-ag, - F.3d

16   -, - (2d Cir. 2013).




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