04 -34 54 -ag
Singh v. M ukasey
                         UN ITED STATES COUR T OF APPEALS

                               FOR THE SECOND CIRCUIT

                                   October Term 2008

Heard:      October 20, 2008                           Decided: January 21, 2009

                                 Docket No. 04-3454-ag



 LA K H WIN D ER SIN G H ,

           Petitioner,

 v.

 M ICHAEL B. M UKASEY, * Attorney
 General of the United States, U.S.
 Department of Homeland Security,

           Respondents.



Before:      KEARSE, SACK, and KELLY, * * Circuit Judges.


       Lakhwinder Singh petitions for review of an order of the Board of

Immigration Appeals (BIA), which affirmed the decision of an immigration judge

(IJ), holding that he violated 8 U.S.C. § 1182(a)(6)(E)(i) and ordering him


       *
        Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney
General M ichael B. M ukasey has been substituted for former Attorney General
John Ashcroft as a respondent in this case.
       **
         The Honorable Paul J. Kelly, Jr., United States Court of Appeals for the
Tenth Circuit, sitting by designation.
removed from the United States. See In re Singh, No. A47 019 715 (BIA June 3,

2004), aff’g In re Singh, No. A47 019 715 (Immig. Ct. Buffalo, M ar. 25, 2003).

On appeal, Petitioner argues that the IJ erred (1) in making unsupported

credibility findings, and (2) in not suppressing statements allegedly made by M r.

Singh. Because of these errors, the government has failed to demonstrate by the

requisite level of proof that M r. Singh violated 8 U.S.C. § 1182(a)(6)(E)(i).

Therefore, we vacate and remand for further proceedings.


                                       Anne E. Doebler, Buffalo, New York, for
                                             Petitioner.
                                       Paul M . O’Brien, United States Attorney,
                                             M iddle District of Tennessee (Brent
                                             A. Hannafan, Assistant United States
                                             Attorney, Nashville, Tennessee) for
                                             Respondents.


PA UL J. KELLY, JR., Circuit Judge.


      Petitioner Lakhwinder Singh petitions for review of a BIA final order

affirming the decision of an IJ in Buffalo, New York, which ordered M r. Singh

removed and deported from the United States as an “alien who . . . knowingly has

encouraged, induced, assisted, abetted, or aided any other alien to enter or to try

to enter the United States in violation of law” under 8 U.S.C. § 1182(a)(6)(E)(i).

By oral decision entered on M arch 25, 2003, the IJ held that M r. Singh was

removable as an “alien smuggler,” J.A. 35, and the BIA affirmed without opinion

                                         -2-
on June 3, 2004, J.A. 2. Having exhausted his administrative remedies, M r. Singh

now appeals. Our jurisdiction arises under 8 U.S.C. § 1252(b)(2).




                                    Background

      M r. Singh is an Indian citizen and a permanent resident of the United

States, residing in upstate New York. J.A. 63, 73-74, 91, 251. He arrived in the

United States in 1999 and is married to a U nited States citizen. J.A. 74-75. M r.

Singh and his wife have two young children, and he has been employed in the

engineering department of a communications company since 1999. J.A. 75-76.

      In January 2001, M r. Singh and his family lived in a duplex home in

Buffalo, New York, upstairs from M r. Sukhpreet Singh Bedi, whom M r. Singh

had met approximately two to three months prior to the events at issue. J.A. 77-

79. They were friendly, but not overly familiar with one another. J.A. 79-82, 94-

95. M r. Singh testified that he did not “know if [M r.] Bedi was working but

maybe he had [said] that he was working at some gas station.” J.A. 83.

      On January 28, 2001, M r. Singh and M r. Bedi traveled to a strip club in St.

Catharine’s in Ontario, Canada, and spent several hours there. J.A. 86, 90, 97,

105, 108. M r. Singh had been to this particular club, and no other, several times

before; however, it was M r. Bedi’s first time to such an establishment. J.A. 88-

89, 101, 109. Before their trip, M r. Singh confirmed that M r. Bedi had his



                                         -3-
Canadian passport with him because M r. Singh’s aunt, a translator for United

States immigration authorities, had warned him about the trouble that could arise

for permanent residents traveling across the border with improperly documented

passengers. J.A. 91-92, 94, 141. M r. Singh testified that he believed a Canadian

passport was sufficient for the trip and did not realize that M r. Bedi required any

additional documentation. J.A. 93-94. M r. Singh further testified that M r. Bedi

had traveled back and forth between Canada and Buffalo on a few occasions,

without any immigration problems. J.A. 152. On their way home from the club,

M r. Singh suggested that they tell immigration authorities they were actually

coming from Hamilton, Ontario, in order to save M r. Singh any embarrassment.

J.A. 108-10, 113, 161-62. M r. Singh’s wife was not aware that he had been

visiting a strip club that night, J.A. 86, and M r. Bedi was agreeable to the story,

J.A. 110.

      At the Lewiston Bridge border inspection station at approximately 1:30

a.m., M r. Singh informed the primary inspecting officer, Kenneth Patten, that they

were en route from Hamilton. J.A. 116-18, 151-52, 193-95. M r. Singh and M r.

Bedi were then told to park the car and come into the station, where they were

separated. J.A . 119. M r. Singh testified that, after waiting over an hour, J.A.

119, Officer Patten called him into a small room for an interrogation, which lasted

more than four hours. J.A. 124, 145-47, 197-99, 207. He stated that he was



                                          -4-
repeatedly threatened with jail, and was told that he could go home if he agreed

with the statements Officer Patten presented to him. J.A. 123-24, 129, 147-49,

154-57, 159, 162-63.

      M r. Singh testified that he did not feel as if he was free to leave while

waiting or during the interrogation, not only because there were “officers

everywhere,” but also because immigration agents were holding his car, driver’s

license, and permanent resident card. J.A. 122, 143-45. Officer Patten confirmed

that M r. Singh was not free to leave once he w as referred to the secondary

inspection station. J.A. 212. M oreover, during the interview M r. Singh broke

down crying and eventually began “rambling on.” J.A. 188-89, 202-03, 210.

      M r. Singh claims that, at the outset, he was not informed of his right to

speak with an attorney before giving his statement, that he was going to be put

into removal proceedings, or that he would eventually need to appear before a

judge. J.A. 150, 189-90, 211. He was merely told that he would need to sign

various documents before he would be permitted to leave. J.A. 150. M r. Singh

signed many documents that morning, and an officer other than Officer Patten

witnessed his signature on these documents. J.A. 155. Among them w as a three-

page, double-spaced “statement,” which he insists (1) he “never read,” (2) was

obtained involuntarily, (3) did not include any explanation of his rights unlike the

form M r. Bedi signed, (4) indicated it was being taken “[I]n the case of:



                                          -5-
Sukhpreet Singh BEDI,” and (5) did not reflect the actual statements he made to

the interrogating officer. J.A. 128, 129, 131-36, 181, 186-87, 239 (M r. Singh’s

statement), 244 (M r. Bedi’s statement). In fact, Officer M arianna Zavala, the

witnessing officer, testified that her signature on the statement meant that she

witnessed the interrogation Officer Patten conducted, but in reality she only

witnessed “bits and pieces” of the interview and she did not recall seeing M r.

Singh actually sign the statement. J.A. 167-68, 170, 177-78, 190-91.

      In relevant part, the statement reads as follow s:

      Q: W ho are you traveling with today?
      A: Sukhpreet Singh BEDI.

      Q: What is your relationship w ith M r. BEDI?
      A: A friend, but he calls me like a brother.

      Q: W hy are your [sic] traveling with M r. BEDI today?
      A: W e went to a strip club in St. Catherines today.

      Q: W here did you pick M r. BEDI up at?
      A: From downstairs at my house.

      Q: W hen I spoke to you outside, where did you tell me that you
      picked M r. BEDI up at?
      A: I told you Hamilton, sir.

      Q: W hy did you tell me you picked M r. BEDI up in Hamilton?
      A: Because he (M r. BEDI) told me to say we were coming from
      Hamilton.

      Q: W hy did M r. BEDI tell you to say you were coming from
      Hamilton?
      A: Because if w e told the truth, you would not allow him to enter.



                                         -6-
Q: Does M r. BEDI live with you?
A: No.

Q: W here does M r. BEDI live?
A: As far as I know, he is staying with his cousin in the flat below
me.

Q: W hen I spoke to you outside, and then inside, where did you tell
me M r. BEDI lived?
A: Hamilton, but I have never gone there.

Q: How long has M r. BEDI lived in the apartment below you?
A: I don’t know exactly, about two or three months.

Q: Have you ever picked M r. BEDI up at work?
A: No.

Q: W here does M r. BEDI work?
A: He told me at a gas station in Niagara Falls, New York.

Q: W hat is the name of the gas station M r. BEDI is employed at?
A: A Getty gas station.

Q: Who is the owner of that Getty gas station that employs M r.
BEDI?
A : B obby that’s all I know.

Q: How long has he worked there?
A : I don’t know .

Q: What did you tell me earlier, when I asked you, where does M r.
BEDI work?
A: I told [you] he doesn’t work.

Q: W hy did [you] tell me that he does not work?
A: I was afraid that they are not going to let him (M r. BEDI) enter.

Q: W hen I asked M r. BEDI outside, if he had ever lived, worked or
gone to school in the U.S., he said no. W hy didn’t you say anything
about his working at the Getty gas station or his living in the

                                   -7-
      apartment below you at that time?
      A: Because I was afraid you wouldn’t allow him in the U.S. and you
      would send him back to Hamilton.

      Q: As far as you know, does M r. BIDI [sic] have permission from the
      U.S. government to live or w ork in the U.S.?
      A: No, he doesn’t have any permission.

      Q: Did you know your M r. BEDI needed a permit to work in the
      U.S.?
      A: Yes.

      Q: Did you know it was a violation of the law to work in the U.S.
      without permission of the U.S. government?
      A: Yes.

J.A. 240-41.

      Eventually, that morning sometime before 8 a.m., Officer Patten served M r.

Singh with a Notice to Appear, w hich rendered him the “arresting officer,”

according to the IJ. J.A. 215. At that point, M r. Singh had been in the

immigration offices from approximately 1:30 a.m. the night before until 7 a.m.

that morning, and had not had any sleep since approximately 7:30 a.m. the

previous morning. J.A. 143, 194. W hile M r. Singh briefly saw M r. Bedi on the

morning of his release from the immigration offices, when M r. Singh’s wife

arrived, he has not seen M r. Bedi since. J.A. 120-21. M r. Bedi was immediately

deported to Canada that morning. J.A. 174.

      On this petition for review of the IJ’s oral decision ordering M r. Singh’s

removal and the BIA’s affirmance, M r. Singh argues that the IJ erred (1) in



                                         -8-
making unsupported credibility findings, and (2) in not suppressing M r. Singh’s

statement. 1 Therefore, he claims the government failed to establish by “clear,

convincing and unequivocal evidence” that he violated 8 U.S.C.

§ 1182(a)(6)(E)(i).




                                     Discussion

      W here the BIA affirms the decision of the IJ without opinion, we review

the IJ’s decision directly as the final agency determination. Ci Pan v. U.S. Att’y

Gen., 449 F.3d 408, 410 (2d Cir. 2006) (citing M ing Xia Chen v. BIA, 435 F.3d

141, 144 (2d Cir. 2006)). W e review factual findings, including adverse

credibility determinations, for substantial evidence, “overturning them only if any

reasonable adjudicator would be compelled to conclude to the contrary.” Id. at




      1
         M r. Singh further argues that the IJ erred in failing to suppress statem ents
allegedly made by a witness not produced at the hearing, which M r. Singh claims
deprived him of the right to confront an adverse witness. W e note that, in
exploring this issue in similar cases, our sister circuits in the First, Fifth, and
Ninth Circuits have agreed that the government violates principles of fundamental
fairness when it submits an affidavit without first attempting to secure the
presence of those potential witnesses for cross-examination. See Hernandez-
Guadarrama v. Ashcroft, 394 F.3d 674, 681-82 (9th Cir. 2005); Ocasio v.
Ashcroft, 375 F.3d 105, 107 (1st Cir. 2004); Olabanji v. INS, 973 F.2d 1232,
1234-35 (5th Cir. 1992); cf. Dallo v. INS, 765 F.2d 581, 586 (6th Cir. 1985)
(noting this principle without disapproval). However, because the admission of
these statements constitutes harmless error in the instant case, we need not reach
the issue of whether the government should have made a reasonable effort to
secure the witness’s presence for cross-examination by M r. Singh.

                                          -9-
410-11; see 8 U.S.C. § 1252(b)(4)(B); Chambers v. Office of Chief Counsel, 494

F.3d 274, 277-78 (2d Cir. 2007); see also Biao Yang v. Gonzales, 496 F.3d 268,

271-72 (2d Cir. 2007); Shi v. BIA, 374 F.3d 64, 65 (2d Cir. 2004). Therefore,

“[s]uch findings must be upheld if they are supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Diallo v. INS, 232

F.3d 279, 287 (2d Cir. 2000) (internal quotation marks and citation omitted).

W hile this standard of review poses a substantial hurdle to overturn credibility

findings, it is not insurmountable, and in this case, because the government failed

to proffer clear and convincing evidence that M r. Singh knowingly assisted M r.

Bedi in entering the United States in violation of law, we vacate and remand.

I.    The IJ’s Credibility Findings

      W e turn first to M r. Singh’s arguments that the IJ erred in (1) rejecting M r.

Singh’s testimony and crediting Officer Patten’s testimony, and (2) taking judicial

notice of the fact that it is common knowledge that there are strip clubs in

Buffalo, New York.

      Ordinarily, courts treat questions of credibility in deportation proceedings

“as questions of fact subject to the substantial evidence standard.” Secaida-

Rosales v. INS, 331 F.3d 297, 307 (2d Cir. 2003), abrogated on other grounds as

recognized in X iu X ia Lin v. M ukasey, 534 F.3d 162 (2d Cir. 2008). As such, w e

generally defer to an IJ’s credibility determination, but “[w]e may . . . vacate and



                                         -10-
remand an adverse credibility determination if we find that the [IJ] has failed to

‘act fairly in judging credibility and in assessing the sufficiency of the evidence.’”

Biao Yang, 496 F.3d at 271-72 (quoting Cao He Lin v. U.S. Dep’t of Justice, 428

F.3d 391, 394 (2d Cir. 2005)). In assessing an adverse credibility determination,

further inquiry into the IJ’s reasoning may be necessary. Secaida-Rosales, 331

F.3d at 307 (citing Aguilera-Cota v. IN S, 914 F.2d 1375, 1381 (9th Cir. 1990)).

Even if there are errors, if we can predict with confidence that “‘there is no

realistic possibility that, absent the errors, the IJ or BIA would have reached a

different conclusion,’” we will affirm the IJ’s credibility determination. Biao

Yang, 496 F.3d at 272 (quoting Cao He Lin, 428 F.3d at 401). Otherwise, an

adverse credibility determination cannot stand where it is based on speculation or

conjecture, an incorrect analysis of the testimony, or flawed reasoning, rather than

on evidence in the record. Secaida-Rosales, 331 F.3d at 307; see also Cao He

Lin, 428 F.3d at 400-01. We have also expressed skepticism when adverse

credibility determinations are couched in “boiler-plate language.” Cao He Lin,

428 F.3d at 402.

      In determining that M r. Singh did not enjoy the “same level of credibility”

as the immigration officers, the IJ relied on general com ments about M r. Singh’s

demeanor, relying on “the Court’s observation of him, the way he handled the

questions, the way he could not look the Court in the [eye] when giving that



                                         -11-
testimony, his body language, and other factors.” J.A. 49. Beyond these general

comments, the IJ articulated three specific reasons for rejecting M r. Singh’s

credibility: (1) that contrary to M r. Singh’s assertions, he was informed of his

right to counsel before he was interviewed and signed the affidavit, J.A. 48; (2)

that M r. Singh testified he did not know of any adult clubs in New York, J.A. 49;

and (3) that M r. Singh admitted to lying to a customs official about his activities

in Canada, J.A. 45, 47. In essence, the IJ did “not find any credible evidence of

egregious conduct on the part of the arresting officers or the investigating

officers,” J.A. 45, 48, and gave great weight to the routine processing procedures

to which the immigration officers testified, despite their lack of memory as to the

events in question. J.A. 48, 50, 180-81, 187, 210-12. W hen carefully analyzed

against the record evidence, these grounds do not provide an adequate basis for

discrediting M r. Singh’s testimony.

      The IJ’s central reason for discrediting M r. Singh’s testimony – that Officer

Patten advised M r. Singh of his rights before taking the statement – is based on a

factual premise not supported by the record. Compare J.A. 45, 49, with J.A. 180-

81, 189-90, 211. The IJ found that Officer Patten “gave [M r. Singh] his rights

before” interviewing him. J.A. 45; 49 (stating that Officer Patten “told the

respondent that what he said in the statement would or possibly could be used

against him or, put another way, could be used in court, and gave him his rights



                                         -12-
before doing so”). The record is otherwise. Officer Zavala testified that she

herself did not advise M r. Singh of his right to be represented by counsel. J.A.

180-81. She further testified that M r. Singh was advised of his rights only

“towards the end of the interview,” after several hours had gone by. J.A. 189-90.

And Officer Patten, who actually interviewed M r. Singh, specifically testified that

he advised M r. Singh of his right to an attorney after he took M r. Singh’s

statement. J.A. 211. M oreover, as discussed below, M r. Singh’s I-877 form,

upon which his statement was taken, did not warn that the statements could be

used against him. J.A. 239. Not only does this failure to advise M r. Singh of his

rights undermine the reliability of the underlying affidavit, it also undermines the

IJ’s adverse credibility determination. See J.A. 45, 48, 49, 51.

      The IJ’s second stated reason for discrediting M r. Singh’s testimony – that

M r. Singh in fact knew of adult clubs in New York and therefore went to Canada

not to visit a club but to smuggle M r. Bedi – is simply illogical. Assuming the IJ

properly took administrative notice of the existence of adult strip clubs in

Buffalo, 2 he engaged in a dubious analytical process to discredit M r. Singh’s


      2
         The Federal Rules of Evidence do not apply in removal proceedings, and
evidence will be admitted provided it “‘does not violate the alien’s right to due
process of law.’” Aslam v. M ukasey, 537 F.3d 110, 114 (2d Cir. 2008) (quoting
Zhen Nan Lin v. U.S. Dep’t of Justice, 459 F.3d 255, 268 (2d Cir. 2006)). Here,
M r. Singh argues that the IJ erred in taking notice of the fact that there are strip
clubs in Buffalo, in declaring that such knowledge is “common,” and then in
                                                                         (continued...)

                                         -13-
testimony. The IJ concluded that M r. Singh must have known about such clubs in

New York, and therefore reasoned that M r. Singh “was not traveling to Canada to

go to a strip club . . . [but] perhaps maybe even to smuggle the smuglee into the

United States.” J.A. 49. Even assuming that the IJ was correct, and M r. Singh

knew of strip clubs in Buffalo and wanted to ensure M r. Bedi’s continued

unlawful presence in the United States, then M r. Singh and M r. Bedi had to do no

more than visit such an establishment on the American side of the border. W hy

M r. Singh chose to visit a Canadian club is beyond the focus of our inquiry

(anonymity does come to mind); however, the fact remains that M r. Singh and M r.

Bedi drove to Canada from the United States and then attempted to reenter the

United States later that evening. Surely, were M r. Bedi’s continued presence in

Buffalo M r. Singh’s aim, M r. Singh would have recognized that leaving the

United States would frustrate that purpose.

      The third stated reason for discrediting M r. Singh’s testimony is equally




      2
        (...continued)
inferring that M r. Singh must be lying about his purpose in visiting Canada with
M r. Bedi. J.A. 49-50. This court has held that judges are not required to be
“ignorant” in court of what is common knowledge, Kaggen v. IRS, 71 F.3d 1018,
1020 (2d Cir. 1995); however, in taking notice of potentially controlling facts, an
IJ can exceed his discretion when he fails to provide an opportunity to rebut such
facts. See Chhetry v. U.S. Dep’t of Justice, 490 F.3d 196, 200 (2d Cir. 2007).
But, because of our resolution, the judicially noticed facts here are not crucial,
and we need not decide whether M r. Singh’s deprivation of an opportunity to
rebut constituted a violation of his Fifth A mendment due process rights.

                                        -14-
problematic. The IJ concluded that M r. Singh’s testimony was unreliable because

he admitted to misrepresenting his destination in Canada to the customs official

so as to avoid disclosing his presence at a strip club. J.A. 45, 49-50. However,

M r. Singh’s misrepresentation is immaterial and unrelated to any legitimate

immigration concern. Certainly, this misrepresentation is far from sufficient to

justify discrediting M r. Singh’s testimony about issues of fundamental

importance.

      For these reasons we conclude, under the totality of the circumstances, that

the IJ’s adverse credibility determination was improper.

II.   Suppression of M r. Singh’s Statement

      M r. Singh also argues that his signed statement dated January 28, 2001,

should have been excluded from his deportation proceedings because it was

obtained “involuntarily and in violation of the applicable federal regulations.”

      It is well established that the Fifth A mendment affords aliens due process

of law during deportation proceedings. See Felzcerek v. INS, 75 F.3d 112, 115

(2d Cir. 1996) (citing Reno v. Flores, 507 U .S. 292, 305-07 (1993)); see also

Bridges v. W ilson, 326 U.S. 135, 154 (1945). W hile the Supreme Court held in

IN S v. Lopez-M endoza that the exclusionary rule generally does not apply in

deportation proceedings, the Court did not address exclusion with regard to

“egregious violations of Fourth Amendment or other liberties that might



                                        -15-
transgress notions of fundamental fairness and undermine the probative value of

the evidence obtained.” 468 U.S. 1032, 1050-51 (1984). In interpreting the

Supreme Court’s decision, this court has held that exclusion of evidence is

appropriate “‘if record evidence established either (a) that an egregious violation

that was fundamentally unfair had occurred, or (b) that the violation – regardless

of its egregiousness or unfairness – undermined the reliability of the evidence in

dispute.’” Pinto-M ontoya v. M ukasey, 540 F.3d 126, 131 (2d Cir. 2008) (quoting

Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006)). Even assuming

that the conduct here was not “egregious,” it nonetheless “undermined the

reliability of the evidence in dispute.” Almeida-Amaral, 461 F.3d at 235.

      M r. Singh’s statement should have been suppressed because it was

unreliable. First, the conditions of the interrogation itself undermine the

statement. During the interrogation, M r. Singh was held by immigration officers

for at least four to five hours, in a place where armed, uniformed officers w ere

circulating. J.A. 147-49. M r. Singh further reports that Officer Patten was

pressuring him, telling him repeatedly that he would be sent to jail. 3 J.A. 148-49,

123, 154, 162-63. As a result, both O fficers Patten and Zavala confirmed that M r.




      3
         The “use of threats, coercion, or physical abuse by the designated
immigration officer to induce a suspect to waive his or her rights or to make a
statement is prohibited.” 8 C.F.R. § 287.8(c)(vii); see also Pinto-M ontoya, 540
F.3d at 129-30.

                                        -16-
Singh broke down crying during the interrogation, which took place during the

wee hours of the morning. J.A. 143, 188, 210. M r. Singh had not slept for

approximately twenty-four hours by the time he w as released. J.A. 143. In

addition, M r. Singh testified that he “never read” the statement he was asked to

sign, and that it contained admissions he never made. J.A. 125-26, 128-29, 132-

33, 155, 162-63. M ost important, M r. Singh testified that he had no idea whether

M r. Bedi had permission to work and live in the United States, rather that the

interrogating officer “kept on asking me this again and again . . . . He wanted to

hear what he wanted to hear.” J.A. 136. In fact, Officer Patten stated, “On a

regular basis I interview people, and quite often they will not give me the answer

that I am asking for. And in turn I’ll just have to try a different approach to get

it.” J.A. 212.

      Second, M r. Singh was undeniably in custody at the time he made his

statements. The interrogating officer took control of M r. Singh’s car and his

permanent resident card, thus rendering it impossible for him to walk away at any

point during the course of the night. 4 J.A. 143-44, 212. Third, as discussed




      4
         Under 8 C.F.R. § 287.8(b)(2), officials have the power only to “briefly
detain [a suspect] for questioning” if they have “reasonable suspicion, based on
specific articulable facts, that the person being questioned is . . . engaged in an
offense against the United States” (emphasis added). During questioning, such
officials may not “restrain the freedom of an individual, not under arrest, to walk
aw ay.” Id. § 287.8(b)(1).

                                         -17-
above, it is unclear when, if ever, M r. Singh was informed of his right to speak

with an attorney, that his statements could be used against him, or that he was in

danger of removal himself. J.A. 150, 210-11; see 8 C.F.R. § 287.3(c) (requiring

the examining officer to inform an alien of his rights); see also J.A. 239 (M r.

Singh’s statement). The failure to warn M r. Singh of the consequences of his

statements is evidenced by the very form on which it was taken. M r. Bedi’s form

I-867A includes the w arning that “[a]ny statement you make may be used against

you in this or any subsequent administrative proceeding,” but M r. Singh’s I-877

form merely indicates that his statement was to be used “in the case of” M r. Bedi

and includes no indication that M r. Singh was even under suspicion of having

comm itted a crime or that his statements could be used against him. See J.A. 239,

244. Fourth, Officer Zavala admitted that, although she w itnessed M r. Singh’s

signature on the statement, she heard only “bits and pieces of the interview,” J.A .

168, 177-78; that she didn’t recall whether she saw M r. Singh sign the statement,

J.A. 170; and that she could not specifically remember anyone informing M r.

Singh of his rights, at least not until after a “few hours had already gone by,” J.A .

181, 189-90.

      Finally, M r. Singh urges that the government violated 8 C.F.R. § 287.3(a)

when the same officer interrogated and arrested him. The C.F.R. provides that

      [a]n alien arrested without a warrant of arrest . . . will be examined
      by an officer other than the arresting officer. If no other qualified

                                          -18-
      officer is readily available . . . the arresting officer, if the conduct of
      such examination is a part of the duties assigned to him or her, may
      examine the alien.

8 C.F.R. § 287.3(a). The IJ determined that Officer Patten was the “arresting

officer” in this case. J.A. 215-16. The record does not show that no other

qualified officer was available to examine M r. Singh.

      In those immigration cases where we have affirmed the denial of

suppression motions on the basis that the evidence was nonetheless reliable, the

evidence related to simple, specific, and objective facts, e.g., whether a person is

a foreign citizen or has a passport and valid visa. See, e.g., M elnitsenko v.

M ukasey, 517 F.3d 42, 44-45 (2d Cir. 2008); Almeida-Amaral, 461 F.3d at 233;

see also Lopez-M endoza, 468 U.S. at 1035; Rajah v. M ukasey, 544 F.3d 427, 440-

41 (2d Cir. 2008); Pinto-M ontoya, 540 F.3d at 128. These facts are not altered by

coercive interrogation – a person either is or is not a citizen of a particular

country and either does or does not have a visa. In this case, the underlying issue

– whether M r. Singh knew that M r. Bedi, although a Canadian citizen with

permission to enter the United States, was entering the country in violation of law

by virtue of his intent to continue working in the United States without

authorization – is more nuanced and susceptible to corruption during the course of

an improper interview . Since signing the statement, M r. Singh has consistently

denied that he knew M r. Bedi was entering the United States in violation of law.



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M r. Singh’s argument (that the information is untrue and should be suppressed) is

both logical and more plausible than the argument asserted by the petitioners in

the above cases (that the information is true but should be suppressed anyway).

       Given the procedures employed in this case, the reliability of M r. Singh’s

statement is substantially undermined; the statement should have been suppressed.

III.   Conclusion

       The BIA requires clear and convincing evidence to make a deportation

determination. See 8 U.S.C. § 1229a(c)(3)(A); W oodby v. INS, 385 U.S. 276,

285-86 (1966); Zerrei v. Gonzales, 471 F.3d 342, 345 (2d Cir. 2006). In making

this deportation determination, the IJ relied on unsupported credibility

determinations and on M r. Singh’s unreliable statement. Because we find, in this

extraordinary case, that the government has failed to demonstrate by the requisite

level of proof that M r. Singh violated 8 U.S.C. § 1182(a)(6)(E)(i), we GRANT the

petition for review, VACATE the BIA’s final order removing M r. Singh from the

United States, and REM AND to the BIA for further proceedings.




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