                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-1605


MARIA YANEZ-MARQUEZ,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.


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


Argued:   September 17, 2014                 Decided:    June 16, 2015



Before KING and    FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Petition denied by published opinion.      Senior Judge Hamilton
wrote the opinion in which Judge King and Judge Floyd joined.


ARGUED: Amanda Hunnewell Frost, AMERICAN UNIVERSITY, Washington,
D.C., for Petitioner.    Jonathan Aaron Robbins, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.      ON
BRIEF: Margaret Hobbins, MAGGIO & KATTAR, Washington, D.C., for
Petitioner. Stuart F. Delery, Assistant Attorney General, Civil
Division, Daniel E. Goldman, Senior Litigation Counsel, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
HAMILTON, Senior Circuit Judge:

     Maria Yanez-Marquez (Yanez), a native and citizen of El

Salvador, petitions for review of a Board of Immigration Appeals

(BIA)    decision     dismissing        her       appeal      from   the       order    of   an

Immigration       Judge    (IJ)    ordering        her     removal       from    the    United

States to El Salvador.             Prior to ordering Yanez’s removal, the

IJ   denied    her    motion       to     suppress       certain         evidence      and    to

terminate     the    removal      proceeding.            At   the    center      of    Yanez’s

petition    for     review    is    her    challenge          to   the    denial       of   this

motion, which was premised on, inter alia, alleged egregious

violations     of    her    Fourth      Amendment        rights.         For    the    reasons

stated below, we deny the petition for review.



                                              I

                                              A

     Because the IJ denied Yanez’s motion to suppress and to

terminate without an evidentiary hearing, we review the evidence

in the light most favorable to Yanez.                         Cotzojay v. Holder, 725

F.3d 172, 178 (2d Cir. 2013).

     In    June     2008,    agents       from     the     Immigration          and    Customs

Enforcement (ICE) were investigating Robert Bontempo, Jr. and

Rebecca    Bontempo,       the     owners     of    Annapolis        Painting         Services

(APS).      The agents suspected that the Bontempos employed and

harbored illegal aliens.                The Bontempos owned a property, 402

                                           - 2 -
Harbor   Drive,     Annapolis,      Maryland    (the   Premises),    which     ICE

surveillance revealed was occupied by Jose Umana Ruiz (Umana),

an illegal alien and El Salvadorian citizen.              Unbeknownst to the

agents, Yanez, an illegal alien and Umana’s long-time partner,

also lived at the Premises.             In June 2008, Yanez was five months

pregnant.

     In an affidavit in support of a search warrant for the

Premises and numerous other houses owned by the Bontempos that

were tied to the housing of illegal aliens, ICE Special Agent

Francis Coker (Agent Coker) outlined the extensive background

evidence     concerning     how    employers    employ    and    house    illegal

aliens, and the extensive evidence concerning how APS and the

Bontempos       engaged    in    such   practices. 1     The    affidavit     also

included    a    picture    of    the   Premises   and   described       it   as   a

“single-family home[,] a single story building with a shingled

roof.”      (J.A. 524). 2         A mailbox, with the number “402,” is


     1
       The search warrant itself incorporated by reference Agent
Coker’s affidavit, thus avoiding any difficulty with the Supreme
Court’s decision in Groh v. Ramirez, 540 U.S. 551 (2004).    See
United States v. Hurwitz, 459 F.3d 463, 470-71 (4th Cir. 2006)
(“As a general rule, a supporting affidavit or document may be
read together with (and considered part of) a warrant that
otherwise lacks sufficient particularity ‘if the warrant uses
appropriate words of incorporation, and if the supporting
document accompanies the warrant.’” (quoting Groh, 540 U.S. at
557-58)).
     2
       The picture of the Premises included in Agent Coker’s
affidavit shows a single story home with a gable roof. It shows
(Continued)
                                        - 3 -
located in front of the Premises.                   (J.A. 524).         The affidavit

noted that Anne Arundel County land records reflected a sale of

the Premises from Jennifer Scott to the Bontempos in October

2000 for the sum of $156,000.00.

       The search warrant that accompanied Agent Coker’s affidavit

had two boxes on its front side, where the issuing judge was

required   to     designate     the    time    of    day   when       the   search   was

authorized to occur.           The “daytime” box read “in the daytime--

6:00    A.M.    to     10:00   P.M.”       (J.A.      455).           Meanwhile,     the

alternative “any time” box read “at any time in the day or night

as I find reasonable cause has been established.”                           (J.A. 455).

In   issuing     the    warrant   for    the    Premises,         a    United    States

Magistrate Judge in the District of Maryland checked only the

daytime box and struck the language next to the any time box

that would have authorized a nighttime search as follows:                            “at

any time in the day or night as I find reasonable cause has been

established.”        (J.A. 455) (strikeout in original).                     Thus, the

warrant for the Premises authorized a daytime search only, to be

conducted between 6:00 a.m. and 10:00 p.m.                        The warrant also

specified that the search was to be completed on or before July

4, 2008.       The scope of the items to be seized under the warrant




two windows in the roof facing the street and one window on the
right gable end.


                                        - 4 -
was     broad    and    included       illegal       aliens,      travel     documents,

financial records, and photographs of harbored aliens.

      The magistrate judge issued the search warrant on June 24,

2008.     The search of the Premises took place six days later, on

the morning of Monday, June 30, 2008.                        Prior to the search,

several    ICE   agents,       along   with    officers      of      the   Anne   Arundel

County Police Department, assembled in an Annapolis parking lot

for a briefing.          ICE Agent Sean Currie (Agent Currie), the ICE

search team leader, assigned responsibilities for the search.

After the briefing, the search team proceeded to the Premises,

which was ten to fifteen minutes away by car, to execute the

warrant.

      According to Yanez, the search warrant was executed at the

Premises at 5:00 a.m. 3             Agent Currie knocked on the front door

which was answered by another occupant of the Premises, Jose

Mendoza-Gomez         (Mendoza),     who    immediately        was     handcuffed    and

seated    on    the    couch   in    the    living    room     for    officer     safety.

After detaining Mendoza, two agents proceeded upstairs.                            Umana

and Yanez were awakened by the yelling of “police” and a loud

banging on their bedroom door.               (J.A. 141).        Umana and Yanez had

      3
       Agent Currie and ICE agent Richard Federico,                          Sr. (Agent
Federico) executed declarations that were presented                         to the IJ.
In their respective declarations, they assert that                           the search
began at 6:02 a.m. The return on the search warrant                         states that
the search was completed at 8:56 a.m., but it fails                         to indicate
when the search began.


                                           - 5 -
been planning to sleep later than normal that morning because

Yanez had the day off from work.                     She felt groggy and confused

because “it seemed like it was the middle of the night.”                                (J.A.

141).     She    had    no     idea    what        was   going   on.         Umana    clothed

himself, but before he could reach the locked door, the ICE

agents broke it down, causing the door to hit Umana’s hand.                                 Two

agents “burst” into the room and screamed “police.”                            (J.A. 142).

One agent grabbed Umana’s neck and threw him to the ground.                                 The

other held a gun to Umana’s head while pinning his body and face

to the floor.          The agents screamed “don’t move.”                       (J.A. 142).

Once Umana was held down, an agent pointed a gun at Yanez’s head

and yelled “don’t move.”               (J.A. 142).         Yanez, who was wearing a

“nightshirt,” cried and pleaded for permission to cover herself

“with more clothes.”                (J.A. 142).           The agent again screamed

“don’t move” and pointed his gun at her head.                                  (J.A. 142).

Umana told the agents that Yanez was pregnant and begged them to

allow    her    to    get     dressed.         A    female    agent     was    called       for

assistance      and    came    to     Yanez,       telling    her     that    “it    will    be

okay.”    (J.A. 142).          Yanez was scared that she or Umana would be

harmed, and she was not allowed to use the restroom.                                 Although

an agent was speaking in Spanish, loud noise obstructed Yanez

from    hearing.       The     agents     handcuffed         Umana    and     escorted      him

downstairs.           Yanez     grabbed     a       “T-shirt     to    put     over     [her]

nightshirt” as she was led downstairs at gunpoint.                           (J.A. 143).

                                          - 6 -
       Downstairs, Yanez saw four ICE agents in the living room.

She was told to join Umana on the couch.            Although the occupants

denied that anyone else was in the house, the agents knocked

down doors and found no one.              For five to ten minutes, the

agents questioned the occupants about their identities, asking

repeatedly      about   Annapolis   Painting    Services.     The    occupants

denied    knowing   anything   about    the    company.     The   agents    were

“extremely hostile,” and Yanez thought that someone would be

harmed if they did not answer the questions.                (J.A. 143).      The

agents then took the occupants’ fingerprints and escorted Umana

and Mendoza away.         Yanez was “never shown a warrant, [never]

told that [she] had a right to an attorney, [and never told]

that [she] could refuse to answer any questions.”             (J.A. 143).

       The ICE agents searched the entire house, “ripp[ing] apart

each     room    that   they   went    through,”    kicking       down    doors,

scattering documents, and turning over furniture.                 (J.A. 144).

During the search, Yanez again was questioned.              The agents asked

her if she had a car and keys for it, which Yanez conceded.

Yanez felt she had no choice but to surrender the keys.                  Her car

was searched.       The agents told Yanez that she “had” to sign

“several pieces of paper,” although she did not want to sign

them, asked why she had to sign, and did not understand what

they said.       (J.A. 144).    Despite no one reading or explaining

the documents to her, she signed them.

                                      - 7 -
      Before leaving, an ICE agent told Yanez that she would get

a letter from “the Immigration Court” and warned her not to move

to a different location.             (J.A. 145).        When the agents left at

9:15 a.m., they took many of Yanez’s belongings, including her

pay stubs, tax returns, and photo albums.                          These items were

never returned.

      After the search, Yanez left the Premises and spent the

night     at    her    sister-in-law’s        house.         She   returned    to   the

Premises       the    following   day    to    find    the    landlord’s      employees

“hauling” off her and Umana’s “belongings . . . to the trash

dump.”     (J.A. 145).        Later that day, Yanez experienced stress

and severe abdominal pain that she believes were caused by the

search, seizure, and questioning.                At 5:30 p.m., she was taken

to the hospital where she was treated and released after a few

hours.     Upon her release from the hospital, Yanez was told her

unborn child would be “alright.”               (J.A. 145).

      Yanez’s statements to the ICE agents were memorialized on

two   “Form     I–213s”    (Record      of    Deportable/Inadmissible          Alien). 4


      4
       “A Form I–213 is an official record routinely prepared by
an [immigration officer] as a summary of information obtained at
the time of the initial processing of an individual suspected of
being an alien unlawfully present in the United States.” Bauge
v. INS, 7 F.3d 1540, 1543 n.2 (10th Cir. 1993). “Form I–213[s]
. . . are records made by public officials in the ordinary
course of their duties, and accordingly evidence strong indicia
of reliability.”   Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir.
1996).


                                         - 8 -
The    forms    state     that    Yanez    is       a     native   and     citizen        of   El

Salvador and that she “last entered the United States on or

about April 2007 without inspection.”                        (J.A. 453).          The forms

further     reveal   that       Yanez    has       been    illegally       present    in       the

United States since her April 2007 entry.

                                               B

       On July 10, 2008, the Department of Homeland Security (DHS)

issued a notice to appear to Yanez.                         The notice alleged that

Yanez was “an alien present in the United States who had not

been    admitted     or    paroled.”           (J.A.       547);   see     also   8       U.S.C.

§ 1182(a)(6)(A)(i) (rendering inadmissible an alien who has not

been    properly     admitted       or     paroled).           In     support        of     this

allegation, the notice alleged that Yanez: (1) was not a United

States citizen; (2) was a native and citizen of El Salvador; (3)

entered the United States at an unknown location on an unknown

date; and (4) was not “admitted or paroled after inspection by

an Immigration Officer.”           (J.A. 547).

       On   February      10,    2010,    the       DHS    filed    its    “Submission         of

Intended       Evidence,”       which     designated         the     evidence        the       DHS

intended to introduce in the removal proceeding as follows: (1)

the two Form I–213s; (2) the search warrant executed for the

Premises; and (3) the affidavit in support of the warrant.                                     In

response, on April 21, 2010, Yanez filed a “motion to suppress

and    to   terminate     removal        proceedings.”             (J.A.    106).          Yanez

                                          - 9 -
claimed   that,     during     the     June    30,    2008    search,     seizure,      and

questioning,      the    ICE    agents     egregiously         violated       her    Fourth

Amendment      rights,     violated      her    Fifth        Amendment    due       process

rights,     and     failed       to     follow        five      applicable          federal

regulations.        In her motion, Yanez stressed that the Supreme

Court’s decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984),

permitted the application of the exclusionary rule in a civil

removal proceeding where the Fourth Amendment violations were

either widespread or egregious.

      More specifically, Yanez first claimed that the ICE agents

egregiously       violated     her     Fourth       Amendment     rights      when     they

executed the search warrant at 5:00 a.m. instead of between 6:00

a.m. and 10:00 p.m.            Second, Yanez claimed that the warrant’s

lack of particularity egregiously violated her Fourth Amendment

rights in that (1) she was not specified as an “item” to be

seized in the warrant and (2) the agents should have known the

Premises was a “two-floor, multi-family dwelling.”                           (J.A. 118).

Third,    Yanez    claimed      that    her     Fourth       Amendment       rights    were

egregiously violated when the agents used excessive force during

the search and seizure.               Fourth, she claimed that the Fourth

Amendment   violations         committed       by    the    agents    were    part    of   a

widespread pattern of ICE misconduct.                      Fifth, Yanez claimed that

the   agents     violated      her    Fifth     Amendment       Due    Process       Clause

rights    when      they     coerced      her        into     making     incriminating

                                        - 10 -
statements.         Finally, she claimed that the agents violated five

different       federal          regulations,          in     particular,         8     C.F.R.

§ 287.8(b)(2)        (permitting      an    immigration           officer   to        detain    a

person for questioning if he has reasonable suspicion “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”), 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall

be made only when the designated immigration officer has reason

to   believe    that       the    person    to    be    arrested     has    committed          an

offense against the United States or is an alien illegally in

the United States.”), 8 C.F.R. § 287.8(c)(2)(ii) (“A warrant of

arrest shall be obtained except when the designated immigration

officer   has       reason    to    believe      that       the   person    is    likely       to

escape    before        a     warrant       can     be       obtained.”),         8     C.F.R.

§ 287.8(a)(1)(iii)           (“A    designated          immigration        officer       shall

always use the minimum non-deadly force necessary to accomplish

the officer’s mission and shall escalate to a higher level of

non-deadly      force       only    when    such       higher      level    of    force        is

warranted      by    the     actions,      apparent         intentions,     and       apparent

capabilities of the suspect, prisoner or assailant.”), and 8

C.F.R. § 287.3(c) (which requires that an alien who is arrested

without a warrant and placed in formal removal proceedings be

informed that she has a right to an attorney and provided with a

list of attorneys that provide free legal services).

                                           - 11 -
         In its response, the DHS first argued that the exclusionary

rule does not apply to civil removal proceedings, also relying

on   the       Supreme      Court’s     decision       in       Lopez-Mendoza.            The    DHS

stressed that the Court in Lopez-Mendoza “did not affirmatively

state         that    egregious        Fourth     Amendment            violations          are   an

exception to the Court’s holding that the Fourth Amendment’s

exclusionary            rule      is    inapplicable             in     civil          deportation

proceedings.”              (J.A. 47).        Alternatively, the DHS argued that,

even if the exclusionary rule applied, Yanez failed to set forth

facts establishing a prima facie case of an egregious violation

of   her      Fourth       Amendment     rights    or       a    violation        of     her   Fifth

Amendment Due Process Clause rights.                        See Matter of Barcenas, 19

I.   &     N.    Dec.      609,   611    (BIA     1988)         (noting      that       petitioner

challenging the admissibility of evidence in removal proceeding

is   required         to    establish    a     prima    facie         case   for       exclusion).

Finally, the DHS argued that the ICE agents did not violate any

applicable           regulations,       and,    even    if       they      did,     it    did    not

justify suppressing the challenged evidence.                                  Along with its

motion, the DHS submitted the declarations of Agent Currie and

Agent Federico.              These declarations take issue with not only

Yanez’s timing assertions, but also her assertions concerning

the manner in which the search, seizure, and questioning were

carried out.

         In    her    decision     denying      the     motion        to     suppress      and   to

                                             - 12 -
terminate, the IJ first rejected the DHS’s contention that the

exclusionary rule did not apply in civil removal proceedings,

relying on Lopez-Mendoza and BIA precedent.                    The IJ then set

forth the prima facie case framework, noting that Yanez bore the

initial    burden     of   alleging    facts       constituting   an    egregious

Fourth    Amendment    violation.       The    IJ    then   turned     to   Yanez’s

substantive claims and rejected each one of them.

     In rejecting Yanez’s claim that the ICE agents committed

egregious Fourth Amendment violations, the IJ stated:

     With respect to the timing of entry, even if ICE
     agents entered “at 5 a.m.” as the Respondent asserts,
     the Court cannot find that such a violation of the
     terms of the warrant — by a single hour — would be
     egregious.   That simply does not amount to conduct
     that “shocks the conscience.”     With respect to the
     entry into the bedroom, even if an officer . . . had
     simply come upon the locked door, banged on it,
     announced his presence, and forced it open with
     another officer, the Court cannot conclude that such
     action would be egregious.   The agents were executing
     a search warrant. . . . The alleged timing of entry
     into the residence and method of entry into the
     bedroom were not egregious violations.

(J.A. 543).     Turning next to Yanez’s challenge to the amount of

force    used   by   the   agents,    the     IJ    rejected   this    challenge,

noting:

     With respect to the force used by the officers in the
     home, the Court cannot conclude that excessive force
     was used, even considering solely the Respondent’s
     account.   The Respondent’s affidavit claims that an
     officer held a gun to her head.        The Respondent
     acknowledges that both officers were screaming, “don’t
     move!” in English and Spanish. . . .    The Respondent
     indicates that her partner told the officers that the

                                      - 13 -
     Respondent was pregnant and asked that she be allowed
     to put on more clothes. She also indicates that when
     the officers heard this, they asked for a female
     officer to come up to the bedroom.       These actions,
     while   no   doubt   extremely   frightening   for  the
     Respondent, are consistent with ensuring officer
     safety and enabling the officers to control a
     potentially dangerous situation.    There is no showing
     that greater than necessary force was used or that
     weapons were drawn any longer than necessary.       The
     Respondent acknowledges that the officers identified
     themselves as police and repeatedly shouted at them
     not to move.    She acknowledges that a female officer
     was called as soon as her partner told them that she
     was pregnant. She also acknowledges that she was not
     put in handcuffs, that she was not taken out of the
     house for further processing, and that she was not
     placed in immigration detention.     The actions of the
     agents and the other officers were reasonable under
     the circumstances and reflect that ICE officials took
     appropriate account of the Respondent’s pregnancy
     throughout the operation.      As such, those actions
     cannot be found to be egregious.

(J.A. 544).

     With regard to Yanez’s claim that the ICE agents violated

her Fifth Amendment Due Process Clause rights, the IJ rejected

this claim, concluding that the circumstances as a whole did not

“reflect an atmosphere of coercion and intimidation that would

render [Yanez’s] statements involuntary.”   (J.A. 544).

     Next, the IJ rejected two of the five regulatory claims

pressed   by   Yanez.      First,     the   IJ   rejected   Yanez’s

§ 287.8(a)(1)(iii) claim on the basis that she had “not made a

sufficient showing that excessive force was used.”     (J.A. 545).

Second, the IJ rejected the § 287.3(c) claim because the DHS’s

notice to appear had sufficiently advised Yanez of her right to

                             - 14 -
counsel.     As for the three remaining regulatory claims, for some

inexplicable          reason,         the     IJ        quoted        the        regulations

(§ 287.8(b)(2),        §   287.8(c)(2)(i),           § 287.8(c)(2)(ii)),            but   did

not explain her reasoning for rejecting the claims.

      The   IJ   then      addressed        Yanez’s       widespread    ICE       misconduct

argument.     The IJ rejected this argument, finding “no basis to

suppress evidence in this case on the basis of what may or may

not have occurred in other cases or during other enforcement

operations.”        (J.A. 546).

      The IJ concluded her opinion by noting that Yanez had “not

met   her    burden        of    establishing           a    prima     facie       case   for

suppression      of    evidence       obtained       in     violation       of   the   Fourth

Amendment, the Fifth Amendment, ICE regulations, or on any other

theory.”     (J.A. 546).         Accordingly, the IJ denied the motion to

suppress and to terminate.

      On    December       13,   2010,       the   IJ       found    that    the    DHS   had

satisfied     its     burden     of    proving        removability          by   clear    and

convincing evidence.             See Karimi v. Holder, 715 F.3d 561, 566

(4th Cir. 2013) (“In removal proceedings, the government bears

the burden of proving removability . . . by clear and convincing

evidence.”).        Because Yanez had not sought relief from removal,

the IJ ordered that Yanez be removed from the United States to

El Salvador.

      On January 11, 2011, Yanez filed a notice of appeal with

                                            - 15 -
the BIA.          In her brief filed with the BIA on April 1, 2011,

Yanez reiterated all of the arguments that she raised before the

IJ, save one.         She did not claim, as she did before the IJ, that

the Fourth Amendment violations committed by the ICE agents were

part    of    a    larger,   widespread        pattern       of    misconduct     by   ICE

officials.         To be sure, Part III D of Yanez’s motion to suppress

and to terminate filed with the IJ raises the widespread pattern

claim in a section following Part III C iv of the motion, which

raised the § 287.3 claim.               In her brief filed with the BIA, the

conclusion section of the brief follows the § 287.3 claim, and

the      brief       contains      no        argument        concerning        widespread

constitutional violations committed by ICE officials.

       On April 7, 2011, the DHS filed its brief with the BIA.                          In

urging       the     BIA   to    affirm        the    IJ’s        decision,     the    DHS

“incorporate[d] by reference the entirety” of the brief it filed

with the IJ.         (J.A. 8).

       On April 15, 2013, the BIA dismissed Yanez’s appeal.                             In

its decision, the BIA first noted that the exclusionary rule

does not apply in civil removal proceedings unless the alleged

Fourth Amendment violation is egregious.                     Next, the BIA rejected

Yanez’s      claim    that   the   ICE       agents     egregiously       violated     her

Fourth Amendment rights, relying on the reasoning of the IJ.

The    BIA    also    adopted    the     reasoning      of    the    IJ   in    rejecting

Yanez’s      Fifth     Amendment       Due    Process     Clause      claim     and    her

                                         - 16 -
regulatory claims under § 287.8(a)(1)(iii) and § 287.3(c).                         With

regard    to   the   three    regulations       the     IJ    quoted   but   did    not

address, § 287.8(b)(2), § 287.8(c)(2)(i), and § 287.8(c)(2)(ii),

the BIA determined that no remand was necessary because the IJ

adequately      addressed     the     nature     of     Yanez’s    “detention         and

interrogation, as well as the warrant used by the ICE officers.”

(J.A. 5).      As a result, the BIA affirmed the IJ’s decision and

dismissed Yanez’s appeal.

       Yanez filed a timely petition for review under 8 U.S.C.

§ 1252.



                                         II

                                         A

       When    the   BIA    affirms    and     adopts    an    IJ’s    decision     and

includes its own reasons for affirming, we review both decisions

as the final agency action.              Ai Hua Chen v. Holder, 742 F.3d

171, 177 (4th Cir. 2014).             Legal conclusions made by the IJ and

the BIA are reviewed de novo.            Crespin–Valladares v. Holder, 632

F.3d   117,    124   (4th    Cir.     2011).      We    must    uphold    the   BIA’s

decision unless it is “manifestly contrary to the law and an

abuse of discretion.”          Tassi v. Holder, 660 F.3d 710, 719 (4th

Cir. 2011).      The BIA abuses its discretion if it fails “to offer

a reasoned explanation for its decision, or if it distort[s] or

disregard[s] important aspects of the applicant’s claim.”                       Id.

                                       - 17 -
       A petitioner challenging the admissibility of evidence in a

civil     removal     proceeding         “must        come    forward       with   proof

establishing a prima facie case before the [government] will be

called on to assume the burden of justifying the manner in which

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

at 611 (citation and internal quotation marks omitted).                            Under

this    burden-shifting      framework,         “if    the    petitioner      offers   an

affidavit that could support a basis for excluding the evidence

. . . , it must then be supported by testimony.”                            Maldonado v.

Holder, 763 F.3d 155, 160 (2d Cir. 2014) (citation and internal

quotation marks omitted).                Upon the establishment of a prima

facie case by the petitioner, the burden of proof shifts to the

government to demonstrate why the IJ should admit the challenged

evidence.       Id.

       In the case before us, both the IJ and the BIA applied this

framework and concluded that Yanez did not establish a prima

facie    case    on   any   of     her    claims       to    warrant    a    suppression

hearing.         It   is    this     conclusion         that      Yanez      principally

challenges in this court.

                                            B

       In her petition for review, Yanez presses claims under the

Fourth    and    Fifth     Amendments,      as    well       as   certain     regulatory

claims.     The heart of her case is that the Fourth Amendment’s

exclusionary rule requires the suppression of all statements and

                                         - 18 -
documentation            regarding         her    national       origin    and    citizenship

obtained       by   the     ICE       agents,      including      the     two    Form    I–213s.

Yanez    contends         that,       without       the    two    Form     I–213s       and    her

statements, the government cannot meet its burden of proving her

alienage        and       removability,            and,      therefore,          her     removal

proceeding should be terminated.                          At a minimum, Yanez claims

that her affidavit and other record evidence provide a basis in

which     to    exclude          the       challenged      evidence,        such        that    an

evidentiary           hearing         is     required.             To     resolve        Yanez’s

contentions, we must first decide whether the Fourth Amendment’s

exclusionary rule applies in the civil removal proceeding before

us.

                                                   C

        The Fourth Amendment protects the “right of the people to

be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.”                             U.S. Const. amend. IV.

Although the Fourth Amendment “contains no provision expressly

precluding      the       use    of    evidence        obtained    in     violation      of    its

commands,” Arizona v. Evans, 514 U.S. 1, 10 (1995), to deter

violations          of     the        Fourth       Amendment,       the     Supreme           Court

established the exclusionary rule, Weeks v. United States, 232

U.S. 383, 398 (1914), which, “when applicable, forbids the use

of improperly obtained evidence at [a criminal] trial.”                                  Herring

v. United States, 555 U.S. 135, 139 (2009); see also Lopez–

                                                 - 19 -
Mendoza, 468 U.S. at 1040–41 (“The general rule in a criminal

proceeding is that statements and other evidence obtained as a

result of an unlawful, warrantless arrest are suppressible if

the link between the evidence and the unlawful conduct is not

too attenuated.”).          “[T]he exclusionary sanction applies to any

‘fruits’ of a constitutional violation--whether such evidence be

tangible,       physical    material    actually        seized     in    an    illegal

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

unlawful activity, or confessions or statements of the accused

obtained during an illegal arrest and detention.”                       United States

v. Crews, 445 U.S. 463, 470 (1980) (footnotes omitted).

        Given the “substantial social costs” of the application of

the exclusionary rule, United States v. Leon, 468 U.S. 897, 907

(1984), namely, “the loss of often probative evidence and all of

the secondary costs that flow from the less accurate or more

cumbersome adjudication that therefore occurs,” Lopez–Mendoza,

468 U.S. at 1041, “the exclusionary rule is not a remedy we

apply    lightly,”     Sanchez-Llamas       v.    Oregon,    548   U.S.       331,   347

(2006).         Indeed,    the   Supreme    Court      has   cautioned        that   the

exclusionary rule’s “massive remedy,” Hudson v. Michigan, 547

U.S. 586, 595 (2006)--the suppression of evidence--is “our last

resort, not our first impulse,” id. at 591.

        While    the   applicability       of    the   exclusionary       rule   in   a

criminal proceeding is settled, the applicability of the rule in

                                       - 20 -
a civil removal proceeding is not.                      The Supreme Court has never

applied the rule in a removal proceeding.                              In fact, in Lopez–

Mendoza,      the    Supreme       Court      held     that      the     exclusionary       rule

generally does not apply in removal proceedings.                                 468 U.S. at

1034; see also United States v. Oscar-Torres, 507 F.3d 224, 230

(4th        Cir.    2007)         (“Lopez-Mendoza             establishes            that     the

exclusionary         rule       does      not       apply     in       civil      deportation

proceedings.”).

       In     Lopez–Mendoza,           Adan    Lopez-Mendoza           (Lopez)       and    Elias

Sandoval-Sanchez           (Sandoval),          two     citizens         of    Mexico,       were

summoned to separate removal proceedings, and both were ordered

deported after such proceedings.                     468 U.S. at 1034.            Immigration

and Naturalization Service (INS) agents arrested Lopez at his

place    of    employment,         a    transmission        repair        shop,      without   a

warrant to search the repair shop or a warrant to arrest anyone

there.       Id. at 1035.          The repair shop owner refused to permit

the agents to speak with his employees during work hours.                                     Id.

However,      while       one   agent     engaged       the      repair       shop    owner    in

conversation, another agent entered the repair shop and spoke

with Lopez.         Id.     While he was being questioned, Lopez told the

agent his name and that he was from Mexico with no close family

ties in the United States.                    Id.      After the agent placed Lopez

under    arrest,      he    was    transported         to   an     INS    office      where    he

admitted that he was born in Mexico, was still a citizen of

                                              - 21 -
Mexico, and had entered the United States without inspection by

immigration officials.             Id.

       At    his    removal       hearing,            Lopez    moved       to    terminate       the

removal      proceeding          on        the      basis          that    he     was    arrested

illegally.         Id.    The IJ held that the legality of Lopez’s arrest

was    not   germane        to   the        removal         proceeding,         and,    therefore,

declined to rule on the legality of the arrest.                                    Id.     On the

basis of the Form I-213 and an affidavit executed by Lopez, the

IJ    ordered      that    Lopez      be     removed         from    the    United      States   to

Mexico.      Id. at 1035-36.

       On    appeal        to     the        BIA,       the        BIA     dismissed      Lopez’s

appeal.      Id. at 1036.             The BIA noted that the “mere fact of an

illegal      arrest       has    no     bearing         on    a     subsequent         deportation

proceeding.”              Id.    (citation            and     internal       quotation       marks

omitted).          On Lopez’s petition for review, the Ninth Circuit

vacated Lopez’s removal order and remanded the case to the BIA

for a determination of whether Lopez’s Fourth Amendment rights

were violated when he was arrested.                          Id.

       The    second       petitioner            in    Lopez-Mendoza,            Sandoval,       was

arrested at his place of employment, a potato processing plant

in Pasco, Washington.                 Id.     INS agents went to the plant, with

the permission of its personnel manager, to check for illegal

aliens.      Id.         During a shift change, plant workers were asked

innocuous questions in English by INS agents as they entered the

                                              - 22 -
plant to work.           Id. at 1037.          Upon seeing the INS agents as he

approached         the   entrance      to    the     plant,         Sandoval      “averted       his

head, turned around, and walked away.”                          Id.       Sandoval was among

the thirty-seven people detained and transported to a county

jail.       Id.     At the jail, Sandoval was questioned by an INS agent

and admitted, in a written statement, that he unlawfully entered

into the United States.               Id.

       At     his     removal     hearing,         Sandoval           contended          that    the

evidence offered by the INS should be suppressed as the fruit of

an    unlawful       arrest.        Id.        The       IJ    considered         and      rejected

Sandoval’s claim that he had been illegally arrested, but ruled

in    the    alternative       that    the     legality         of    the       arrest     was   not

relevant to the removal hearing.                         Id.         Based on the written

record        of      Sandoval’s          admissions,               the     IJ        found      him

removable.         Id. at 1038.

       On     appeal      to    the     BIA,       the        BIA    dismissed         Sandoval’s

appeal.       Id.     The BIA declined to invoke the exclusionary rule,

concluding that the circumstances of the arrest had not affected

the    voluntariness       of    Sandoval’s          written         statement.            Id.    On

Sandoval’s petition for review, the Ninth Circuit reversed the

removal order.           Id.     The Ninth Circuit opined that Sandoval’s

detention by the INS agents violated the Fourth Amendment, that

the statements he made were a product of that detention, and

that    the       exclusionary        rule    barred          their       use    in    a    removal

                                             - 23 -
hearing.    Id.

      In resolving the cases before it, the Supreme Court quickly

disposed of Lopez’s challenge to his removal order because the

“mere fact of an illegal arrest has no bearing on a subsequent

deportation proceeding.”          Id. at 1040 (citation and internal

quotation marks omitted).        According to the Court, “[t]he ‘body’

or identity of a defendant or respondent in a criminal or civil

proceeding     is    never   itself    suppressible        as    a    fruit     of   an

unlawful arrest, even if it is conceded that an unlawful arrest,

search, or interrogation occurred.”             Id. at 1039.

      Sandoval’s case meaningfully differed from that of Lopez’s

case in that Sandoval challenged the admissibility of evidence

at   his   removal    hearing,   while     Lopez    only    raised      a     personal

jurisdiction      challenge.     Cf.     Oscar-Torres,          507    F.3d    at    229

(noting    that,     in   Lopez-Mendoza,       Lopez’s    case       only   raised     a

personal     jurisdictional      challenge,        that     is,       Lopez     sought

“suppression of [his] body,” while Sandoval conceded personal

jurisdiction, but sought to suppress the evidence in his removal

proceeding).        Indeed, the Court in Lopez-Mendoza observed that

Sandoval had “a more substantial claim” because “[h]e objected

not to his compelled presence at a deportation proceeding, but

to evidence offered at that proceeding.”                 468 U.S. at 1040.            As

a result, the Court considered whether the exclusionary rule

should apply to prohibit the government from using illegally

                                      - 24 -
obtained    evidence     of    Sandoval’s         alienage       against   him   in    his

removal proceeding.          Id. at 1040–41.

     In determining whether to apply the exclusionary rule in a

removal    proceeding,        the   Supreme       Court    in    Lopez-Mendoza        noted

that removal proceedings are “purely civil,” id. at 1038, the

purpose    of   which    is    “not    to       punish    past    transgressions       but

rather     to   put     an    end   to      a    continuing       violation      of    the

immigration laws.”           Id. at 1039.         The Court emphasized that the

evidentiary protections that apply in criminal proceedings do

not apply in removal proceedings because: (1) criminal trials

adjudicate      the   defendant’s        guilt,     whereas      removal   proceedings

determine the alien’s “eligibility to remain in this country”;

and (2) unlike criminal trials, removal hearings do not impose

punishment on the alien.              Id. at 1038.           Given this, the Court

characterized the intent of a removal hearing as a “streamlined

determination of eligibility to remain in this country, nothing

more.”    Id. at 1039.

     Viewing a removal proceeding through the proper lens, the

Court employed a cost-benefit analysis to determine whether to

apply the exclusionary rule to removal proceedings, id. at 1041-

50, weighing the “social benefits of excluding unlawfully seized

evidence against the likely costs.”                  Id. at 1041; cf. Leon, 468

U.S. at 906-08 (concluding that evidence obtained pursuant to

the good faith reliance on a defective warrant should not be

                                         - 25 -
excluded because the cost of exclusion outweighed the benefit of

deterrence); United States v. Janis, 428 U.S. 433, 454 (1976)

(declining      to     apply    the     exclusionary           rule    to       a    civil      tax

proceeding because the cost of exclusion outweighed the benefit

of deterrence).          On the benefit side of the ledger, the Court

proffered       four     reasons        why,        in   the     context            of    removal

proceedings, the deterrent value of the exclusionary rule was

significantly reduced.            468 U.S. at 1043-46.                  First, the Court

opined that, because deportability can be proven by evidence

independent      of    the     arrest,        the    legality     of    the         arrest      was

irrelevant.       Id. at 1043-44.             Second, the Court noted that very

few undocumented aliens actually challenge removal orders based

on    Fourth    Amendment       grounds,        making     it    “unlikely”              that    an

immigration agent would “shape his conduct in anticipation of

the exclusion of evidence” at a removal hearing.                                Id. at 1044.

Third, because the INS already had its own comprehensive scheme

for deterring Fourth Amendment violations, application of the

exclusionary rule was unnecessary.                       Id. at 1044-45.                 Finally,

the    Court     reasoned        that     the        availability          of       alternative

remedies,      such     as     civil    or     criminal        sanctions         against        the

immigration official, further undermined the deterrent value of

the exclusionary rule.            Id. at 1045.

      The      Lopez-Mendoza          Court     then     turned       to    the          cost    of

exclusion.           First,     the    Court        observed     that      the       effect      of

                                          - 26 -
applying the exclusionary rule required courts “to close their

eyes to ongoing violations of the law.”                      Id. at 1046.         Second,

applying     the    exclusionary      rule     would    significantly        complicate

the “simple” and “streamlined” deportation system.                         Id. at 1048.

Finally, the Court opined that, with respect to the apprehension

of over one million undocumented aliens each year, expecting

immigration agents to provide written details of each arrest and

to   attend    suppression          hearings       would      severely     burden     the

administration of immigration laws.                  Id. at 1048-49.

      Weighing       the   benefits       of   exclusion       against      the     likely

costs, the Court in Lopez-Mendoza was persuaded that the scales

tipped     against       applying     the      exclusionary         rule   in     removal

proceedings.        Id. at 1050.       In particular, the Court emphasized

that the “costs” of applying the exclusionary rule in removal

proceedings        are   “high,”    noting      that    such       application      “would

compel the courts to release from custody persons who would then

immediately resume their commission of a crime through their

continuing, unlawful presence in this country.”                      Id.

      After        concluding       that       the      exclusionary         rule      was

inapplicable to removal proceedings because the costs outweighed

the benefits, a plurality of the Court in Lopez-Mendoza appeared

to   limit    the    scope   of     its     holding     by    apparently        reserving

judgment for cases that presented a “good reason to believe that

Fourth       Amendment        violations           by        INS      officers        were

                                          - 27 -
widespread.”           Id.      at     1050. 5      In   carving        out   this    apparent

limitation, the plurality emphasized that its holding “[did] not

deal . . . with egregious violations of Fourth Amendment or

other      liberties       that       might   transgress        notions       of   fundamental

fairness        and   undermine         the      probative      value    of    the   evidence

obtained.”        Id. at 1050-51 (footnote omitted).

       Four Justices dissented in Lopez-Mendoza.                              Each of these

four Justices opined that the exclusionary rule should apply in

removal proceedings.                  See id. at 1052 (White, J., dissenting)

(“I believe that the conclusion of the majority is based upon an

incorrect assessment of the costs and benefits of applying the

rule       in   [removal     proceedings].”);            id.    at   1051     (Brennan,     J.,

dissenting) (“I fully agree with Justice White that . . . the

exclusionary rule must apply in civil deportation proceedings”

not    because        it   is     a    deterrent     but       because    “of      the   Fourth

Amendment itself.”); id. at 1060 (Marshall, J., dissenting) (“I

agree with Justice White that . . . [Supreme Court precedent]

compels the conclusion that the exclusionary rule should apply

in civil deportation proceedings.”); id. at 1061 (Stevens, J.,

dissenting) (“Because the Court has not yet held that the rule

       5
       While Chief Justice Burger joined the parts of the opinion
(Parts I to IV) holding that the exclusionary rule did not apply
in removal proceedings, he did not join in the part of the
opinion (Part V) recognizing that egregious or widespread Fourth
Amendment   violations   might   warrant   application   of   the
exclusionary rule.


                                              - 28 -
of    .    .    .     [Leon]     .     .    .    has    any     application          to    warrantless

searches, I do not join the portion of Justice WHITE’s opinion

that      relies         on    that    case.           I    do,      however,       agree    with    the

remainder           of     his       dissenting            opinion.”).            Considering        the

position         of      the   four        dissenting         justices,       a     total    of     eight

justices            in    Lopez-Mendoza            seem         to     have    agreed        that    the

exclusionary rule should apply in removal proceedings in some

form.

          Since       Lopez-Mendoza              was       decided,        circuit        courts     have

applied         the      exclusionary            rule      in     removal     proceedings           in   a

variety of circumstances.                        See, e.g., Cotzojay, 725 F.3d at 179-

83 (addressing whether warrantless entry into alien’s home was

egregious           Fourth       Amendment         violation);             Oliva-Ramos       v.     Att’y

Gen., 694 F.3d 259, 278-79 (3d Cir. 2012) (addressing whether

ICE       agents’        entry       into       apartment       and     seizure      of     the     alien

egregiously violated the Fourth Amendment, and whether the ICE

agents’        conduct         was     part      of    a    widespread        pattern       of     Fourth

Amendment misconduct); Puc-Ruiz v. Holder, 629 F.3d 771, 779

(8th      Cir.      2010)      (addressing            whether        the    arrest    of    the     alien

egregiously              violated          the     Fourth            Amendment);          Kandamar       v.

Gonzales, 464 F.3d 65, 71 (1st Cir. 2006) (addressing whether

alien’s statements were obtained in egregious violation of the

Fourth         Amendment         and       the    Due      Process         Clause    of     the     Fifth

Amendment); Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-37 (2d

                                                   - 29 -
Cir.       2006)     (addressing    whether    the   alien’s    seizure   was    an

egregious Fourth Amendment violation); Gonzalez-Rivera v. INS,

22 F.3d 1441, 1449 (9th Cir. 1994) (addressing whether stop of

alien egregiously violated the Fourth Amendment).                    Such courts

have applied the rule even though the Court’s limiting language

in Lopez-Mendoza could be labeled as “dicta” in that the Court

arguably         reserved   judgment     on   whether   the    exclusionary    rule

applies in the event of an egregious Fourth Amendment.                          See,

e.g., Oliva-Ramos, 694 F.3d at 275 (noting that the apparent

limitation in Lopez-Mendoza could be characterized as dicta).

       In our case, the IJ, the BIA, and the Attorney General all

agree that the exclusionary rule applies in removal proceedings

to egregious violations of the Fourth Amendment. 6                   Although we

have       not     had   occasion   to   consider    the   application    of    the

exclusionary rule in removal proceedings in a published opinion, 7


       6
       Before the IJ and the BIA in this case, the DHS took the
position that the exclusionary rule does not apply in removal
proceedings under any circumstances.      However, the Attorney
General, who represents the government in this court, takes a
position contrary to that of the DHS, and his position
concerning the exclusionary rule is binding on the DHS.     See 8
U.S.C. § 1103(a)(1) (providing that the Secretary of Homeland
Security   “shall  be   charged  with   the  administration   and
enforcement of . . . all . . . laws relating to the immigration
and naturalization of aliens . . . [p]rovided, however, [t]hat
determination and ruling by the Attorney General with respect to
all questions of law shall be controlling”).
       7
        In unpublished decisions, we have recognized the
application of the exclusionary rule in removal proceedings.
(Continued)
                                         - 30 -
we are in agreement with those courts that have concluded that

the    rule      applies          to    egregious        violations          of   the   Fourth

Amendment. 8           To    hold      otherwise       would    give    no    effect    to   the

language used by the Supreme Court in Lopez-Mendoza expressing

concern over fundamentally unfair methods of obtaining evidence

and would ignore the fact that eight justices in Lopez-Mendoza

seem       to   have    agreed         that    the     exclusionary      rule     applies    in

removal proceedings in some form.                        Moreover, even assuming the

Court’s limitation in Lopez-Mendoza could be construed as dicta,

we simply cannot ignore the import of the language used by the

Supreme Court in that case.                      See United States v. Fareed, 296

F.3d 243, 247 (4th Cir. 2002) (following “dictum endorsed by six

justices”        of    the       Supreme      Court    and     citing    Gaylor    v.   United

States, 74 F.3d 214, 217 (10th Cir. 1996) (stating that federal

appellate       court       is    “‘bound      by     Supreme    Court    dicta    almost    as

firmly as by the Court’s outright holdings’”)).                              Accordingly, we




See, e.g., Samuels v. INS, 993 F.2d 1539, at *1 (4th Cir. 1993)
(unpublished) (“We reject Samuels’ arguments that her confession
should have been suppressed because of alleged Fifth Amendment
violations.    The Supreme Court has made clear that the
exclusionary rule does not apply in civil deportation cases,
absent ‘egregious’ constitutional violations. . . . We perceive
no egregious violations here.” (footnote omitted)).
       8
       All of Yanez’s egregiousness claims pertain to alleged
Fourth Amendment violations.     Consequently, we do not decide
what “other liberties” fall within the egregiousness exception.
Lopez-Mendoza, 468 U.S. at 1050.


                                               - 31 -
hold that the exclusionary rule applies in removal proceedings

where the challenged evidence has been obtained by “egregious

violations of [the] Fourth Amendment . . . that might transgress

notions      of    fundamental      fairness       and    undermine      the     probative

value of the evidence obtained.”                    Lopez–Mendoza, 468 U.S. at

1050-51.

       Under this holding, an alien seeking the application of the

exclusionary        rule   to   a    Fourth      Amendment       claim    in   a   removal

hearing faces two hurdles at the prima facie case stage.                               First,

she must allege facts that state a violation of her rights under

the Fourth Amendment.               Oliva-Ramos, 694 F.3d at 275.                  Second,

the alien must show that the alleged violation of the Fourth

Amendment was egregious.                Id.     To get an evidentiary hearing,

the alien must satisfy both prongs.                     See Maldonado, 763 F.3d at

162 (“Petitioners were required to proffer affidavits based on

personal      knowledge         that,      taken     as     true,        could     support

suppression.         Had their affidavits been sufficient, they would

have   had    an    opportunity       to      confirm    those    allegations          in   an

evidentiary hearing.”).             If an evidentiary hearing is warranted,

the alien will have the opportunity to present testimony and

evidence in support of her Fourth Amendment claim.                               Id.     Upon

the establishment of a prima facie case, the burden of proof

shifts to the government to demonstrate why the IJ should admit

the challenged evidence.             Id.

                                           - 32 -
       A    court          reviewing    the    alien’s        claim     may,    but    is     not

required to, address both the constitutional and egregiousness

prongs.      Like a § 1983 qualified immunity inquiry, the court can

choose      to     decline        to    address        whether     a    Fourth        Amendment

violation         has        occurred      and        first      address       whether        the

egregiousness prong has been satisfied.                               See, e.g., Martinez

Carcamo v. Holder, 713 F.3d 916, 922 (8th Cir. 2013) (holding

that alleged Fourth Amendment violations were not egregious and

declining        to    address       whether     Fourth       Amendment    violations         had

occurred); Martinez-Medina v. Holder, 673 F.3d 1029, 1034 (9th

Cir. 2011) (“However, we need not and do not decide whether the

seizure violated Petitioners’ Fourth Amendment rights because we

conclude that, even if the seizure violated Petitioners’ Fourth

Amendment         rights,        the    violation       was     not     egregious.”);         see

also       Pearson          v.   Callahan,       555     U.S.     223,     235-37        (2009)

(explaining that, in deciding the question of § 1983 qualified

immunity, the court may, but is not required to, address both

the constitutional and clearly established prongs; rather, it

may decide the case solely on the clearly established prong).

Thus, if the alien fails to allege facts sufficient to show that

an   immigration             official    has     violated       the     Fourth       Amendment,

relief      can       be    denied     alone     on    that    basis.          Cf.    Evans    v.

Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (“[I]f a plaintiff

fails to allege that an official has violated any right, the

                                              - 33 -
official ‘is hardly in need of any immunity and the analysis

ends right then and there.’” (quoting Abney v. Coe, 493 F.3d

412, 415 (4th Cir. 2007))).              Alternatively, relief can be denied

where    the   alien    fails     to    allege    facts      that    an   immigration

official             egregiously               violated             the         Fourth

Amendment.     See Maldonado, 763 F.3d at 160 (“The affidavits in

this case do not suggest egregious constitutional violations,

and    therefore     could   not       support   a    basis    for    excluding     the

evidence.”     (brackets,       citation,       and   internal      quotation    marks

omitted)).      If there is an evidentiary hearing on the alien’s

claim, relief can be denied if the alien fails to meet her

evidentiary burden on either prong.                   Oliva-Ramos, 694 F.3d at

279.

                                           D

       As noted above, an alien seeking to invoke the exclusionary

rule in a removal proceeding must demonstrate: (1) a violation

of her Fourth Amendment rights; and (2) that the violation was

egregious.           While      the      standard      for      establishing        the

constitutional        violation        prong     is   straightforward--alleging

facts       establishing           a      violation           of      the       Fourth

Amendment,     Chalmers,        703      F.3d    at    646--the       standard      for

establishing the egregiousness prong is not so straightforward.

The     confusion,     and   hence       uncertainty,        stems    from   Part    V

of Lopez-Mendoza.

                                        - 34 -
                                             1

      Part V of Lopez-Mendoza sanctions the application of the

exclusionary rule in cases where the evidence was obtained as a

result of “egregious violations of Fourth Amendment or other

liberties that might transgress notions of fundamental fairness

and undermine the probative value of the evidence obtained.”

468 U.S. at 1050–51.            The exact meaning of this statement is far

from clear.

      The    plain       meaning   of    this     statement          suggests    that    the

Fourth      Amendment       violation        must        “transgress         notions      of

fundamental fairness” and “undermine the probative value of the

evidence     obtained.”         Id.      However,        closer      inspection    of    the

context of this statement reveals that the Supreme Court meant

to use the disjunctive “or” instead of the conjunctive “and” to

create two avenues of relief instead of one such avenue.                                  In

other words, an egregious violation of the Fourth Amendment is:

(1)   a     violation      of   the     Fourth     Amendment         that    transgresses

notions     of    fundamental      fairness;       or     (2)    a    violation    of    the

Fourth Amendment that, regardless of the violation’s unfairness,

undermines         the      probative            value      of        the       challenged

evidence.        See Oliva-Ramos, 694 F.3d at 278 (concluding that an

egregious         constitutional          violation          involves           either    a

constitutional       violation        that       was     fundamentally        unfair     or,

alternatively,       a    constitutional         violation       that,      regardless   of

                                         - 35 -
its unfairness, undermined the probative value of the obtained

evidence); Almeida-Amaral, 461 F.3d at 234 (“The [Lopez-Mendoza]

Court,     seemingly       inadvertently,           used    the     conjunctive        ‘and’

instead    of    the    disjunctive         ‘or’     to    link    these     two    possible

grounds for deeming a violation egregious.”); Gonzalez-Rivera,

22 F.3d at 1451 (holding that a “fundamentally unfair Fourth

Amendment violation is considered egregious regardless of the

probative value of the evidence obtained”).

       To be sure, the Lopez-Mendoza Court justified its exception

for egregious constitutional violations by citing four cases in

which the evidence was reliable (and therefore its probative

value was not undermined), but nevertheless suppressible because

its admission was fundamentally unfair.                          The first case cited

was Rochin v. California, 342 U.S. 165 (1952).                               There, police

officers        obtained       probative          evidence        of     Rochin’s         drug

involvement      by    forcing      him     to    ingest    an     emetic     solution     to

induce     vomiting      so     they      could      recover       recently        swallowed

morphine    capsules.           Id.    at    166.         The    Court   held      that   the

probative    evidence         was   illegally        obtained      because     the    method

used   offended        even    “hardened         sensibilities”        and    “shocks      the

conscience” of the Court.              Id. at 172.              In no uncertain terms,

the Court in Rochin opined that reliability is not the sole

touchstone of the Fourth Amendment.                        Id. at 173 (noting that

coerced confessions are inadmissible in criminal trials “even

                                            - 36 -
though    statements      contained       in     them    may        be     independently

established     as    true”      principally      because           they     “offend       the

community’s sense of fair play and decency”).                        Thus, it was the

tactics   of   the    police,     not    the     reliability         of    the        obtained

evidence, that led to the exclusion of the evidence in Rochin.

     The three remaining cases concerning egregiousness cited by

the Lopez-Mendoza Court were BIA decisions, Matter of Toro, 17

I. & N. Dec. 340 (BIA 1980); Matter of Garcia, 17 I. & N. Dec.

319 (BIA 1980); and Matter of Ramira–Cordova, No. A21 095 659

(BIA Feb. 21, 1980) (unpublished).                In each of these cases, the

BIA decision did not focus on the reliability of the evidence.

Rather, the decision focused on whether the admission of the

contested evidence would be fundamentally fair.                            See Matter of

Toro, 17 I. & N. Dec. at 343-44 (suggesting that a stop based on

Hispanic appearance alone would constitute an egregious Fourth

Amendment violation if the Border Patrol officers acted in bad

faith,    regardless     of     the     probative       value        of    the        evidence

obtained);     Matter    of   Garcia,      17     I.    &      N.     Dec.       at     320-21

(excluding statements obtained after agents repeatedly ignored

detainee’s request for counsel); Matter of Ramira–Cordova, No.

A21 095 659, slip op. at 3-4 (suppressing evidence obtained as a

result    of   a     nighttime     warrantless         entry        into     the      aliens’

residence).

     The Lopez-Mendoza Court’s use of the cited authority only

                                        - 37 -
makes sense if fundamental unfairness is not tethered to the

probative value of the evidence obtained.                   As noted by the court

in Orhorhaghe v. INS, “[w]ere the rule to the contrary, the

egregiousness      exception       would    have     little    meaning,         for     the

fruits of an illegal search or seizure ordinarily consist of

physical      evidence,     the    reliability       of    which     is    in    no     way

affected by the manner in which the evidence is obtained.”                              38

F.3d 488, 501 (9th Cir. 1994).                  Given this, it is no surprise

that    the   three    circuits     to    have    meaningfully       considered         the

unsettled “and/or” issue raised by Part V of the Lopez-Mendoza

opinion have opted to replace the opinion’s “and” with an “or”

to create a workable, disjunctive standard.                         Oliva-Ramos, 694

F.3d at 278; Almeida-Amaral, 461 F.3d at 234; Gonzalez-Rivera,

22 F.3d at 1451; but see Lopez-Rodriguez v. Holder, 560 F.3d

1098, 1105 (9th Cir. 2009) (Bea, J., dissenting from the denial

of   rehearing    en   banc)      (“Finally,      the     Mendoza    dicta      seems    to

posit    a    conjunctive     test.        To     trigger    application         of     the

exclusionary      rule,      the     egregious       conduct        must     both       (1)

transgress notions of fundamental fairness and (2) undermine the

probative value of the evidence obtained.” (emphasis, footnote,

citation, and internal quotation marks omitted)).

       In our case, Yanez does not challenge the probative value

of the evidence obtained as a result of the alleged wrongful

search, seizure, and questioning.                 Consequently, the challenged

                                         - 38 -
evidence       cannot    be     excluded      on   the   basis       that    its       probative

value     is    undermined        by    the    activities        of    the       ICE    agents.

Rather,     the      challenged     evidence       can    only    be    excluded         if   the

actions of the agents amounted to a violation of the Fourth

Amendment       that    transgresses          notions     of    fundamental            fairness.

This begs the question: When does a violation of the Fourth

Amendment transgress notions of fundamental fairness?                                   We turn

to this question next.

                                               2

          A review of the case law demonstrates that there is no

consensus       on     when   a   violation        of    the     Fourth      Amendment         is

egregious       such     that     it    transgresses          notions       of    fundamental

fairness.            However,     two    different        approaches         to        assessing

egregiousness have emerged in the fact-specific case law.                                     The

first is the qualified immunity approach, which is applied in

the     Ninth     Circuit.         The     second        is    the     totality         of    the

circumstances approach, which is applied in the Second, Third,

and Eighth Circuits. 9

                                               a

      9
       Other circuits have raised and disposed of claims of
egregiousness without setting out a detailed standard.      See,
e.g., Kandamar, 464 F.3d at 74 (refusing to find egregiousness);
United States v. Olivares-Rangel, 458 F.3d 1104, 1118 n.11 (10th
Cir. 2006) (citing the Lopez-Mendoza examples of egregiousness);
Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004)
(refusing to find egregiousness for voluntary statements made by
alien while not in custody).


                                           - 39 -
       The Ninth Circuit’s qualified immunity approach is the most

alien-friendly test for egregiousness, linking the inquiry to a

qualified      immunity       analysis.            In   Gonzalez-Rivera,              the       Ninth

Circuit     held     that     all    “bad    faith”         violations         of    the    Fourth

Amendment      are     egregious,          warranting        the    application            of    the

exclusionary rule.            22 F.3d at 1449 & n.5.                 A bad faith Fourth

Amendment      violation        occurs       when       “evidence         is        obtained      by

deliberate violations of the [F]ourth [A]mendment, or by conduct

a reasonable officer should have known is in violation of the

Constitution.”         Id. at 1449 (emphasis omitted).                          Applying that

standard in Gonzalez-Rivera, the court held that stopping an

individual      based       solely     on     a    person’s        race    constitutes            an

egregious      violation        of     the        Fourth     Amendment          because         “the

officers      should    have    known       that     their     decision         to    stop      [the

alien]      based       solely        on      his        Hispanic         appearance              was

unconstitutional.”            Id. at 1450.

       In   another     case,        the    Ninth       Circuit     found       an     egregious

violation      where     officers          entered      a    home    without          trying      to

procure a warrant, without exigent circumstances, and without

consent,      because    “reasonable          officers        should      have       known       that

they were violating the Fourth Amendment.”                           Lopez-Rodriguez v.

Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008).                               In the court’s

view, “reasonable officers would not have thought it lawful to

push   open    the     door    to    petitioners’           home    simply      because         [the

                                            - 40 -
petitioner] did not ‘tell them to leave or [that] she did not

want to talk to them.’”        Id.

      Building on Lopez-Rodriguez, the Ninth Circuit in Martinez-

Medina     noted   that   whether     “a    reasonable    officer    should    have

known his conduct violated the Constitution depends in part on

whether the constitutional right was clearly established in the

particular context at issue.”                673 F.3d at 1034.            There, a

deputy sheriff was told by two Mexican nationals that they were

illegally present in the United States.                   Id. at 1031.          The

deputy sheriff detained them solely by verbal instruction until

an immigration officer arrived.                Id. at 1031-32.           The aliens

admitted to the immigration officer that they were illegally

present in the United States.              Id. at 1032.    The Martinez-Medina

court      found   no   egregious     violation      of   the    aliens’     Fourth

Amendment rights because “a reasonable officer would not have

known he lacked probable cause to detain Petitioners.”                       Id. at

1035.       In the court’s view, “the deputy sheriff, unlike the

officers      in   Lopez–Rodriguez,          was    not   acting     against     an

unequivocal doctrinal backdrop.”              Id.    In other words, because

the “law was unclear as to whether an alien’s admission to being

illegally present in the United States created probable cause to

seize the alien for violating federal immigration law,” there

was   no    egregious     violation    of    the    aliens’     Fourth    Amendment

rights.     Id.

                                      - 41 -
                                           b

      On the other end of the spectrum is the totality of the

circumstances      approach.        In     Oliva-Ramos,        the    Third    Circuit

criticized the Ninth Circuit’s linking of the exclusionary rule

in removal cases to the qualified immunity standard.                                Oliva-

Ramos, 694 F.3d at 277.        The court said that it could not adopt

an egregiousness standard that is “perched on the fulcrum of the

good faith of the police.”               Id.       The Third Circuit noted that

the   Ninth    Circuit’s   test     would      “permit      conduct    that     may    be

objectively reasonable based on directives of the [DHS], but

nevertheless result in routine invasions of the constitutionally

protected privacy rights of individuals.”                    Id.     Finding such a

result untenable, the court in Oliva-Ramos indicated that the

egregiousness analysis “must, by its very nature, differ from an

inquiry into an officer’s good faith.”                    Id. at 259 n.21.

      In Oliva-Ramos, the alien alleged several Fourth Amendment

violations, including that the officers lacked proper consent

before entering his apartment at 4:30 a.m., arrested him without

probable cause or a warrant, and seized him without reasonable

suspicion.      Id. at 261-62.       The BIA denied the alien’s request

to    supplement    the    record    with          new,   previously    unavailable

evidence of widespread Fourth Amendment violations and egregious

conduct,      concluding   that     Part       V    of    Lopez-Mendoza       was    only

dicta.     Id. at 262-70.      On the ensuing petition for review, the

                                     - 42 -
Third    Circuit      vacated     the     BIA’s   decision    and   required       it    to

reopen the proceedings so that the alien could present evidence

of widespread and egregious conduct.                 Id. at 274-82.

       The court in Oliva-Ramos opined that “evidence will be the

result of an egregious violation within the meaning of Lopez-

Mendoza,      if    the    record      evidence     establishes”     that     a   Fourth

Amendment          violation      that      was     fundamentally        unfair         had

occurred.          Id.    at    278.      In   setting      the   contours    of     this

standard, the Oliva-Ramos court discerned “guiding principles”

from    the   Second       Circuit’s      decision     in    Almeida-Amaral.            Id.

First, “courts and agencies must adopt a flexible case-by-case

approach for evaluating egregiousness, based on a general set of

background principles which fulfill the two-part Lopez-Mendoza

test.”     Id. at 278-79.          Second, fact-finders who “evaluat[e] the

egregiousness of the violation should pay close attention to the

‘characteristics and severity of the offending conduct.’”                               Id.

at 279 (citation and internal quotation marks omitted).                           Quoting

the First Circuit’s decision in Kandamar and the Eight Circuit’s

decision      in     Puc-Ruiz,      the    Oliva-Ramos      court    explained       that

“‘evidence of any government misconduct by threats, coercion or

physical abuse’ might be important considerations in evaluating

egregiousness,”           id.   (quoting    Kandamar,       464   F.3d   at   71),      and

“evidence of ‘physical brutality’” and an “‘unreasonable show or

use of force’” also may be relevant, id. (quoting Puc-Ruiz, 629

                                           - 43 -
F.3d    at   778-79).      Succinctly       put,   the    Oliva-Ramos   court

concluded      that   “there   is   no    one-size-fits-all      approach    to

determining whether a Fourth Amendment violation is egregious”

and that the Supreme Court in Lopez-Mendoza did not “suggest or

imply   that    any   strict   test-based    approach     is   appropriate   or

warranted.”       Id.    Rather,    the   totality   of   the   circumstances

should guide the analysis, and the court required the BIA to

consider on remand factors such as:

       [W]hether   Oliva-Ramos   can   establish  intentional
       violations of the Fourth Amendment, whether the
       seizure itself was so gross or unreasonable in
       addition to being without a plausible legal ground,
       (e.g., when the initial illegal stop is particularly
       lengthy, there is an unnecessary and menacing show or
       use of force, etc.), whether improper seizures,
       illegal entry of homes, or arrests occurred under
       threats, coercion or physical abuse, the extent to
       which the agents re[s]orted to unreasonable shows of
       force, and finally, whether any seizures or arrests
       were based on race or perceived ethnicity.

Id.     The court further explained that its list of factors was

merely “illustrative . . . and not intended as an exhaustive

list of factors that should always be considered, nor is any one

factor necessarily determinative of the outcome in every case.

Rather, the familiar totality of the circumstances must guide

the inquiry and determine its outcome.”            Id.

       Because the court in Oliva-Ramos took “no position . . . on

the underlying question of whether the circumstances here are so

egregious . . . as to justify a suppression order,” id. at 282,


                                    - 44 -
it   did    not     apply     the   totality       of    the     circumstances           test.

Instead,     the    court     remanded     the    case     to    allow      the    alien    to

marshal     evidence       concerning      widespread       and       egregious         Fourth

Amendment violations.           Id.

     The Second Circuit’s case law is in line with that of the

Third Circuit.        In Almeida-Amaral, a border patrol agent stopped

a Brazilian national.               461 F.3d at 232.                 The court found a

Fourth Amendment violation because the arresting agent had no

legitimate basis for stopping the alien.                        Id. at 236.         However,

these facts were not sufficient to find an egregious violation

requiring        exclusion     of   the    evidence       obtained          following      the

stop.      Id.     The court concluded that stopping the alien without

“valid     reason     or     suspicion”     constituted          a    Fourth       Amendment

violation but was not egregious because it was not “particularly

lengthy” and there was no show of force.                        Id.    According to the

court,      egregiousness           must     be         gauged        “based       on      the

characteristics and severity of the offending conduct.                             Thus, if

an individual is subjected to a seizure for no reason at all,

that by itself may constitute an egregious violation, but only

if the seizure is sufficiently severe.”                    Id. at 235.            Thus, like

the Third Circuit, the Second Circuit’s egregiousness approach

involved an assessment of the totality of the objective facts in

the record.

     The     Second    Circuit        followed     Oliva-Ramos         in    its    decision

                                          - 45 -
in Cotzojay.         In that case, an alien from Guatemala, who was

seized by ICE agents at his home in Riverhead, New York at

approximately       4:00      a.m.,      asserted   that    his    Fourth     Amendment

rights, among others, had been violated and thus endeavored to

exclude the evidence obtained by ICE as a result of the seizure,

including a Form I-213, his passport, and his statements to the

agents.      725 F.3d at 174-77.           Of note, the agents did attempt to

obtain a warrant to enter the alien’s home, and they entered the

home without the alien’s consent or exigent circumstances.                             Id.

at    174,   177.       The    IJ   and    the   BIA   refused     to   suppress       the

challenged     evidence        because     the   alien     did    not   claim     he   was

“physically threatened or harmed in the course of the nighttime,

warrantless raid.”            Id. at 179.

       On appeal, the Second Circuit vacated and remanded the case

to the BIA.         Id. at 184.          The court first observed that it had

never     found     a   violation         sufficiently      severe      to    meet     the

egregious standard in a removal case.                    Id. at 180.          The court

then moved to the uncontroversial proposition that the Fourth

Amendment applies to aliens and citizens alike.                            Id. at 181.

The   court    noted     that,      in   the   absence     of    consent     or   exigent

circumstances, the Supreme Court has consistently held that an

entry into a home to conduct a search or make an arrest is

unreasonable under the Fourth Amendment unless done pursuant to

a warrant.        Id.      In the court’s view, “if a Fourth Amendment

                                          - 46 -
violation is measured by what is reasonable, then an egregious

violation must surely be something more than unreasonable.”                               Id.

at    182.        In     fact,     the     court    observed       that    the    test    for

egregiousness is more demanding than the test for overcoming

qualified immunity.               Id. at 183 n.10. 10          The court agreed that

the    Third      Circuit’s         list     of    factors         may    be   useful     for

determining whether a Fourth Amendment violation is sufficiently

egregious      to      require      application         of   the    exclusionary        rule,

adding     that     no    “single     aspect       of   a    constitutional       violation

elevates its status from merely unreasonable to egregious.”                               Id.

at 183.      The court observed that,

      although an unlawful search does not become an
      egregious search merely because it invades the privacy
      of the home, . . . that government agents intrude into
      one’s home (versus a workplace or vehicle, for
      example) is an important factor in assessing the
      egregiousness of a Fourth Amendment violation because
      the home is where its protections should be at their
      peak.

Id.    (alteration,          citation,         and      internal         quotation       marks

omitted).

      Applying         the       totality    of      the     circumstances        standard,

the    Cotzojay          court     held     that     “the     deliberate,        nighttime,

warrantless entry into an individual’s home, without consent and


      10
       The Cotzojay court rejected the Ninth                        Circuit’s qualified
immunity approach because the court found                            that approach too
broad in that it places “too much emphasis                          on the good or bad
faith of government agents.” 725 F.3d at 183                        n.10.


                                            - 47 -
in    the   absence      of   exigent    circumstances,          may   constitute    an

egregious      Fourth      Amendment     violation        regardless     of    whether

government agents physically threaten or harm residents.”                           Id.

According to the court, its egregious Fourth Amendment violation

holding     was    further     supported      by    other       objective     evidence,

namely, that the ICE agents “pounded” on the alien’s bedroom

door following the home entry, “corralled” the alien and “other

handcuffed residents in the living room,” searched the alien’s

“room for desirable identification documents, informed arrestees

that they could relieve themselves in a restaurant parking lot

while [the agents] ate breakfast, and, in total, detained [the

alien] for approximately eighteen hours.”                       Id. at 183-84 n.12.

As a result, the court remanded the case for further proceedings

to give the government a meaningful opportunity to show that its

officers obtained consent to enter the home.                     Id. at 183-84.

       In Maldonado, the Second Circuit stressed the difficulty of

establishing a prima facie case of egregiousness.                      In that case,

aliens from Ecuador were among persons gathered in a park in

Danbury, Connecticut, to seek work.                      763 F.3d at 158.           The

Danbury     Police       Department     (DPD)      and    the    ICE   were    jointly

conducting an operation in that area.                    Id.     The aliens entered

an unmarked vehicle operated by an undercover DPD officer (with

the expectation that they were destined to a work-site).                            Id.

The   aliens      were   arrested,      and   their      incriminating      statements

                                        - 48 -
about   their    alienage     were        memorialized        on    Form      I-213s.         Id.

Before the IJ, the aliens moved to suppress the Form I-213s and

to terminate the removal proceedings based on Fourth Amendment

violations,      arguing     that     the       ICE    agents      seized      them    without

reasonable suspicion and on the basis of their race.                                  Id.     The

IJ concluded that the aliens did not make out a prima facie case

and denied the motion.             Id.    Following the BIA’s affirmance, the

aliens sought review in the Second Circuit.                        Id.

      In denying the petition for review, the Maldonado court

emphasized      that   a   removal        hearing      was    designed        to    provide     a

quick method of determining an alien’s eligibility to remain in

the   country.         Id.    at     159.         As    for     the   contours         of     the

egregiousness standard, the court observed that “‘egregious’ by

definition is very bad indeed.”                       Id.     Thus, according to the

court, the egregiousness standard is “stringent” and “entails a

shock to the conscience.”                Id.; see also id. at 165 (“Something

egregious is by nature extreme, rare, and obvious.”).                                 Applying

the totality of the circumstances standard, the court found no

egregious Fourth Amendment violations.                        Id. at 160-63.                In so

holding,   the    court      noted       that    the    affidavit        in       Cotzojay    was

deemed to satisfy the egregiousness standard “because it averred

facts   that    were    appalling         under       any    standard:        a    deliberate,

nighttime, warrantless entry into an individual’s home without

consent and in the absence of exigent circumstances.”                                   Id. at

                                          - 49 -
160      (citation         and     internal      quotation         marks         omitted).

Contrasting the facts in Cotzojay to the facts before it, the

court pointed out that the aliens did not allege that they were

treated in a particularly severe manner and found nothing in

their    account        suggesting     that     they      were    “gathered       by     the

authorities,         let    alone     that      they      were    selected        by     the

authorities on the basis of race.”                       Id. at 161.         Rather, the

court declared that the aliens “self-selected on the basis of

their willingness to seek and accept day labor.”                       Id.

      The Eighth Circuit’s case law is in line with that of the

Second      and   Third    Circuits.      In     Puc-Ruiz,       the   Eighth      Circuit

affirmed      a   removal    order     issued    by      the   BIA,    which     upheld    a

decision by the IJ, who refused to suppress evidence obtained

following the alien’s apprehension by a local police officer.

629 F.3d at 775-83.              There, the alien, a native and citizen of

Mexico, was arrested at a restaurant by local police, who were

responding to a tip that the restaurant was serving alcohol in

violation of a municipal ordinance.                      Id. at 775.         The police

entered the restaurant without a warrant and asked the patrons

to produce identification.              Id.     After the alien presented his

valid Missouri driver’s license, he was arrested and transported

to    the     police       station,     where       he    was    fingerprinted           and

detained.         Id.   After he was taken into ICE custody, the alien

was   interviewed,         resulting    in    the     preparation       of   a    Form    I-

                                        - 50 -
213.    Id. at 775-76.             Before the IJ, the alien moved to suppress

the evidence resulting from his arrest, including the Form I-

213,     on    the        basis     that     his    arrest      violated    the      Fourth

Amendment.      Id. at 776.

       On review in the Eighth Circuit, the Puc-Ruiz court held

that the police conduct at issue did not rise to the level of an

egregious Fourth Amendment violation.                      Id. at 778-79.        The court

acknowledged that egregious violations are not limited to those

of physical brutality and cited to the principle that the lack

of any valid basis whatsoever for a seizure sets the stage for

egregiousness,            but     more     than    that    single    factor      would     be

needed.       Id.     The court indicated that there was no evidence in

the record that the local police employed an unreasonable show

of force.        Id. at 779.             It emphasized that the alien did not

advance any argument that the decision to arrest him was based

on     race    or     appearance,          such    as     to    trigger    an    egregious

violation,      as        has     been     recognized      in    other    circuit        court

decisions.          Id.     The court considered that this was not a case

in which police officers invaded private property and detained

individuals with no articulable suspicion whatsoever.                           Id. 11

       In     Martinez          Carcamo,     the    Eighth      Circuit    rejected        the

       11
        The Puc-Ruiz court also rejected the alien’s due process
claim on the basis that the statements were voluntarily made.
629 F.3d at 779-80.



                                             - 51 -
aliens’ challenge to the IJ’s denial, and the BIA’s affirmance,

of their motion to suppress.          713 F.3d at 922-26.         The motion to

suppress     challenged     the    warrantless    entry    into    the    aliens’

trailer home “[b]efore approximately” 6:00 a.m. on the basis

that a warrantless entry into a home egregiously violates the

Fourth Amendment.         Id. at 918.     Before entering the home, the

ICE agents took away one man’s cell phone while he was trying to

make a call, and, after entering, pulled a blanket off another

man lying in his bed.            Id. at 918-19.    In upholding the denial

of the motion to suppress the passports the agents obtained as a

result of the warrantless entry, the court applied the totality

of circumstances approach outlined in Oliva-Ramos.                Id. at 923. 12

Under that standard, the court found that the agents’ entry into

the   home    was   not     an    egregious    Fourth    amendment    violation

“because     nothing   in    our    previous     cases    indicates      that   an

unreasonable search becomes an egregious search merely because

it invades the privacy of the home.”               Id.     The court further

found that the aliens’ allegations that they were targeted on

      12
        The Martinez Carcamo court noted that it previously had
rejected the Ninth Circuit’s qualified immunity approach in
Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011). Martinez
Carcamo, 713 F.3d at 923. In Garcia-Torres, the Eighth Circuit
rejected the Ninth Circuit’s approach because “[s]uch a standard
would likely eviscerate Lopez–Mendoza insofar as the Fourth
Amendment prohibits only ‘unreasonable’ searches and seizures
and the Ninth Circuit’s standard applies whenever ‘a reasonable
officer should have known’ his conduct was illegal.”     Garcia-
Torres, 660 F.3d at 337 n.4.


                                     - 52 -
account of their race were speculative.                    Id.

       In Lopez-Fernandez v. Holder, the Eighth Circuit denied a

petition for review of a removal order issued by the BIA, which

upheld a decision by the IJ, who refused to suppress evidence

obtained following the aliens’ apprehension by ICE agents who

went   to   the   aliens’     home     following         relevant       information    the

agents received from a named informant.                          735 F.3d 1043, 1045

(8th Cir. 2013).        Prior to the 7:00 a.m. entry, the agents did

not attempt to procure a warrant.                  Id. at 1044-45.         Rather, they

“forced” their warrantless entry after one of the aliens opened

the front door.         Id. at 1044.         In resolving the aliens’ Fourth

Amendment    claim,     the    court      assumed        the    entry    into   the    home

violated    the   Fourth      Amendment.           Id.    at    1046.      Applying    the

totality of the circumstances test, the court held, citing Puc-

Ruiz, Garcia-Torres, and Martinez Carcamo, that the aliens had

not established that the assumed Fourth Amendment violation was

sufficiently       egregious         to      justify           suppression        of   the

government’s      evidence,     including      Form       I-213s     and    the    aliens’

passports.     Id. at 1047-48.            In so holding, the court found two

facts particularly relevant.               First, there was “no evidence of

egregious force in the manner of entry.”                       Id. at 1048.        Second,

the search occurred in the “morning when the Petitioners were

already     awake,      not     in     the     middle           of   the     night”      as

in Cotzojay.      Id.

                                          - 53 -
                                                   c

      Our survey of the case law from the Ninth Circuit on the

one   hand    and     the      Second,       Third,      and    Eighth       Circuits       on     the

other,    informs        us     that       we   should        align       ourselves    with       the

Second, Third, and Eighth Circuits and apply a totality of the

circumstances test.

      Any    analysis          into    the      appropriate          egregiousness      standard

should begin          with     the    recognition            that    a    removal     hearing         is

intended to “provide a streamlined determination of eligibility

to remain in this country, nothing more.”                                  Lopez-Mendoza, 468

U.S. at 1039.          As the Supreme Court noted in Lopez-Mendoza, the

removal      hearing         system        is    designed           to    “permit     the        quick

resolution of very large numbers of deportation actions, . . .

[and]    [t]he      prospect          of    even       occasional         invocation        of    the

exclusionary rule might significantly change and complicate the

character” of removal hearings.                        Id. at 1048.           Considering the

views espoused by the Supreme Court, especially its admonishment

that we do not change and complicate the character of removal

proceedings,        it    is     evident        that     a    suppression        hearing         in    a

removal proceedings is, at most, supposed to be a very rare

occurrence.           Cf.      Maldonado,          763       F.3d    at    167     (noting        that

invocation       of      the    exclusionary            rule    in       removal    proceedings

should not be a “common-place tactic”).                              Thus, to stay faithful

to the dictates of the Supreme Court, it follows that an alien’s

                                                - 54 -
evidentiary        proffer      concerning     egregiousness      must    be    high,

otherwise a suppression hearing on the question of egregiousness

would be commonplace, and the very heart of the Lopez-Mendoza

decision      would    be    undermined.       Cf.   id.   at   159   (noting     that

“‘egregious’ by definition is very bad indeed”); Garcia-Torres,

660 F.3d at 336 (noting that an egregious violation must be more

than    a    “mere    garden-variety”        violation);    Almeida-Amaral,        461

F.3d at 235 (noting that, “if an individual is subjected to a

seizure for no reason at all, that by itself may constitute an

egregious violation, but only if the seizure is sufficiently

severe” (emphasis omitted)).

       The Ninth Circuit’s approach requires a suppression hearing

any    time   an     alien    alleges   that   the   law   enforcement        officers

acted in bad faith.             This sets the evidentiary proffer bar too

low.        Bad    faith     allegations   often     are   difficult     to    resolve

without an evidentiary hearing because the outcome turns on the

subjective motivations of the law enforcement officers.                         It is

easy to see how the bad faith standard can be manipulated by

clever lawyers and encourages aliens to file frivolous improper

motivation claims.            Thus, we see the Ninth Circuit’s standard as

stymieing, rather than promoting, the streamlined nature of the

removal hearing process as recognized by the Court in Lopez-

Mendoza.      Relatedly, the Ninth Circuit’s standard runs the risk

of routinely requiring the arresting law enforcement officer to

                                        - 55 -
appear     at        a     suppression          hearing     to     testify      concerning

motivation,        which      the       Court     noted     in     Lopez-Mendoza    would

unacceptably burden the administration of the immigration laws.

468 U.S. at 1049.

      The Ninth Circuit’s standard is inconsistent with Lopez-

Mendoza on another front.                 The cases cited by the Lopez-Mendoza

Court    in        support         of     the      egregiousness         exception,      in

particular Rochin, turned on the conduct of the law enforcement

officers not on the knowledge or intent of the law enforcement

officers.       The Court in Rochin did not resolve the case on the

basis of what the law enforcement officers knew or intended, but

rather what they did--they forcibly arrested the defendant and

obtained inculpatory evidence without his consent by forcing a

tube down his throat to pump his stomach.                              342 U.S. at 166.

Thus, the outcome of the egregiousness inquiry does not solely

turn on the knowledge or intent of law enforcement officers,

though        intent         may        be       one       among       other     relevant

factors.      See Oliva-Ramos, 694 F.3d at 279 (noting that intent

may be one among many other factors to be considered under the

totality      of     the     circumstances).              Yet,   the    Ninth   Circuit’s

standard permits the application of the exclusionary rule in a

removal proceeding any time law enforcement officers knowingly

or   intend     to       violate    the   Fourth       Amendment    regardless     of   the

severity of their conduct.                   Eliminating the severity of the law

                                             - 56 -
enforcement officers’ conduct essentially guts the definition of

egregiousness             envisioned              by       the            Court       in         Lopez-

Mendoza.      Cf. Martinez Carcamo, 713 F.3d at 923 (“We decline to

allow the Fourth Amendment rights of citizens or aliens to turn

on a federal agent’s personal state of mind.”).

      The     Ninth      Circuit’s          approach       faces          another     obstacle          as

well.      As noted by the court in Oliva-Ramos, the Ninth Circuit’s

approach allows law enforcement officers a free pass any time

they unconstitutionally act pursuant to an agency regulation.

694 F.3d at 277.               Such a standard makes little sense because

potentially          it          permits          “routine            invasions             of         the

constitutionally protected privacy rights of individuals,”                                            id.,

by allowing law enforcement officers to invade such interests

pursuant to an agency regulation that permits unconstitutional

conduct.

      In    our     view,      the      sounder        egregiousness            approach         is    the

totality of the circumstances standard as applied in the Second,

Third, and Eighth Circuits.                      This standard is a flexible case-

by-case standard, taking into account a variety of factors.                                            Id.

It   allows    the       court       to    examine        all    of       the     facts     it    deems

relevant      to    the        egregiousness           inquiry        and       focuses      on       the

unreasonableness            of     the          conduct     of        the       law    enforcement

officers.          Id.    at     276,      278.        Factors        a    court      may   consider

include:      (1)        whether          the     Fourth        Amendment          violation          was

                                                - 57 -
intentional;          (2)       whether        the     violation       was     unreasonable      in

addition       to    being       illegal;           (3)     whether     there      were    threats,

coercion, physical abuse, promises, or an unreasonable show of

force by the law enforcement officers; (4) whether there was no

articulable suspicion for the search or seizure whatsoever; (5)

where, when, and how the search, seizure or questioning took

place;       (6)     whether       the        search,       seizure,    or     questioning       was

particularly lengthy; (7) whether the law enforcement officers

procured        an        arrest       or       search       warrant;        (8)     any    unique

characteristics            of    the      alien       involved;        and    (9)    whether     the

violation was based on racial considerations.                                   Maldonado, 763

F.3d at 159-60; Oliva-Ramos, 694 F.3d at 279; Puc-Ruiz, 629 F.3d

at 779; Kandamar, 464 F.3d at 71.                            This list is not meant to be

exhaustive,          as     there        is     “no       one-size-fits-all          approach     to

determining           whether            a         Fourth      Amendment           violation     is

egregious.”          Oliva-Ramos, 694 F.3d at 279.                           The facts of each

case     will       dictate        the        relevant       factors     for       consideration.

Importantly, the alien’s evidence, in its totality, must support

a basis to suppress the challenged evidence under a finding of

egregiousness,            even     at        the     prima    facie     case       stage.       Such

evidence cannot be based on intuition or speculation, especially

as      it      relates           to          the      intent      of        law      enforcement

officers.          See Maldonado, 763 F.3d at 161 (noting the danger of

vague        “improper       motivation”              allegations);          Lopez-Gabriel       v.

                                                    - 58 -
Holder,    653   F.3d     683,   686   (8th     Cir.   2011)   (no    suppression

hearing required where the alien stated only that he “feels” the

police stopped him because of his race, and he “believe[d]” the

police    treated   him    differently       than   they   would     “treat   white

people”).    Suppression hearings should be the exception, not the

rule in removal proceedings, so the alien’s evidentiary burden,

even at the prima facie case stage, is high.                Lopez-Mendoza, 468

U.S. at 1049-50.

                                         E

     With the appropriate standard set forth, we can proceed to

address the substance of Yanez’s Fourth Amendment claims. 13

                                         1

     Yanez raises three Fourth Amendment particularity claims.

First, she claims that the search warrant was invalid because it


     13
       Because Yanez abandoned before the BIA her claim that the
alleged constitutional violations she experienced were part of a
larger, widespread pattern of unconstitutional misconduct by ICE
agents, we decline to address the merits of her Fourth Amendment
widespread pattern claim. See Kporlor v. Holder, 597 F.3d 222,
226 (4th Cir. 2010) (“It is well established that an alien must
raise each argument to the BIA before we have jurisdiction to
consider it.” (internal quotation marks omitted)); Massis v.
Mukasey, 549 F.3d 631, 638-40 (4th Cir. 2008) (“[U]nder 8 U.S.C.
§ 1252(d)(1), an alien’s failure to dispute an issue on appeal
to the BIA constitutes a failure to exhaust administrative
remedies that bars judicial review.”); see also Rodriguez-
Benitez v. Holder, 763 F.3d 404, 405 (5th Cir. 2014) (“The REAL
ID Act of 2005 grants this Court subject-matter jurisdiction
over constitutional claims and questions of law that were
exhausted before the BIA.” (footnote and internal quotation
marks omitted)).


                                       - 59 -
identified the Premises as a single-family home when it was, in

fact, a multi-unit dwelling.            Alternatively, she claims that,

once the agents entered the Premises, they should have realized

that the Premises was a multi-unit dwelling, and, at that point,

they    should   have   stopped   the   search   immediately   because   the

warrant was overbroad.       Finally, she claims the ICE agents were

required to list her as an item to be seized in the warrant.             We

reject these claims for the simple reason that they do not make

out a constitutional violation, let alone an egregious one. 14


       14
        We note that neither the IJ nor the BIA specifically
addressed Yanez’s particularity claims.     Ordinarily, such an
error would require a remand to the BIA for further proceedings
pursuant to SEC v. Chenery Corp., 318 U.S. 80 (1943).      Under
Chenery, generally we may only affirm on the grounds relied on
by the BIA and may not affirm on unstated alternate grounds.
Id. at 94-95. Chenery is based on the proposition that, unlike
lower courts, agencies exercise their discretion as the
repositories of a Congressionally-delegated power to make
policy; thus, just as an appellate court cannot take the place
of a jury in finding facts, it may not take the place of an
agency in advancing a rationale for agency action.    Id. at 88.
However, where, as here, we are dealing with a purely legal
conclusion, that is, whether Yanez has established a prima facie
case, a remand is not compelled.   See Hussain v. Gonzales, 477
F.3d 153, 158 (4th Cir. 2007) (no remand required where the
record was conclusive that the alien failed to establish a prima
facie case for adjustment of status); cf. N.C. Comm’n of Indian
Affairs v. U.S. Dep’t of Labor, 725 F.2d 238, 240 (4th Cir.
1984) (“We do not . . . perceive there to be a Chenery problem
in the instant case because the question of interpretation of a
federal statute is not a determination or judgment which an
administrative agency alone is authorized to make.” (citation
and internal quotation marks omitted)).      In this case, the
record is complete, Yanez’s arguments are fully briefed, and the
only question before us is purely a legal one. As in Hussain, a
remand to the BIA “would serve no useful purpose,” and the
(Continued)
                                   - 60 -
      The    Fourth         Amendment       provides             that    “no     Warrants         shall

issue,      but       upon       probable        cause,           supported         by     Oath     or

affirmation,          and     particularly             describing          the      place    to     be

searched, and the persons or things to be seized.”                                       U.S. Const.

amend. IV.        The requirement for particularity “ensures that the

search will be carefully tailored to its justifications, and

will not take on the character of the wide-ranging exploratory

searches     the       Framers          intended       to    prohibit.”                Maryland     v.

Garrison, 480 U.S. 79, 84 (1987).                       The particularity requirement

is satisfied when an officer in possession of a search warrant

describing        a   particular         place     to       be    searched       can      reasonably

ascertain         and        identify            the        intended           place        to       be

searched.     United States v. Owens, 848 F.2d 462, 463 (4th Cir.

1988).      Even if the description of the place to be searched is

mistaken,     there         is    no     Fourth        Amendment         violation         when    the

officers     executing            the     search       reasonably          believe         that     the

warrant is sufficiently particular and that they are searching

the   correct         location.           Garrison,          480        U.S.   at      84-89.        An

erroneous description or a factual mistake in the warrant will

not   necessarily            invalidate       the       warrant          and     the      subsequent

search.      Owens,         848    F.2d     at     463-64.          “The       validity      of     the

warrant must be assessed on the basis of the information that



result on remand is a “foregone conclusion.”                              477 F.3d at 158.


                                             - 61 -
the    officers      disclosed,          or    had     a     duty          to    discover            and    to

disclose, to the issuing Magistrate.”                         Garrison, 480 U.S. at 85.

“Those items of evidence that emerge after the warrant is issued

have    no    bearing       on     whether       or    not        a    warrant             was       validly

issued.”      Id.

       We conclude that, under the circumstances, the ICE agents

conducted      a     reasonable           investigation               of        the        Premises         in

preparation         for     obtaining         the     search          warrant,             and       further

conclude that the description of the Premises in the warrant did

not    invalidate         it.       The       agents       placed          the        Premises         under

surveillance, and such surveillance revealed that the Premises

was    occupied      by     Umana,       an    illegal       alien          and       El    Salvadorian

citizen.       Based        on    their       surveillance            of        the    Premises,           the

agents reasonably believed that it was a single-family home, as

the    picture      of    the     Premises      in     the    record             depicts         a    small,

single-story home.               The Premises has just one mailbox, with the

numbers “402” on it, (J.A. 524), and the land records search did

not reflect that the Premises was a multi-unit dwelling.                                                   The

investigation of the Premises and its description in the warrant

unquestionably            complied        with        the         dictates              of       Garrison

and Owens.       Cf. United States v. Clark, 638 F.3d 89, 96 (2d Cir.

2011) (“‘[I]f the [multi-unit] building in question from its

outward      appearance          would    be    taken        to       be    a     single-occupancy

structure      and        neither    the       affiant        nor          other        investigating

                                              - 62 -
officers nor the executing officers knew or had reason to know

of    the   structure’s    actual       multiple-occupancy          character      until

execution of the warrant was under way, then the warrant is not

defective     for   failure      to    specify      a   subunit   within     the   named

building.’”     (quoting    2     Wayne       R.   LaFave,     Search   &    Seizure:   A

Treatise on the Fourth Amendment § 4.5(b), at 581-82 (4th ed.

2004))).     Accordingly, we reject Yanez’s claim that the warrant

was   invalid    because    it    identified         the   Premises     as   a   single-

family home.

       Yanez also claims that, once the ICE agents entered the

Premises and approached the bedroom occupied by her and Umana,

the    agents   should     have       known    it    was   a    multi-unit       dwelling

because the bedroom door was locked.                       Upon this realization,

Yanez claims, the agents immediately should have terminated the

search in order to secure a search warrant for Yanez’s “separate

dwelling.”      Petitioner’s Br. at 32.

       The Supreme Court indicated in Garrison that “the validity

of the search of respondent’s apartment pursuant to a warrant .

. . depends on whether the officers’ failure to realize the

overbreadth of the warrant was objectively understandable and

reasonable.”        480 U.S. at 88.                “It is only after the police

begin to execute the warrant and set foot upon the described

premises that they will discover the factual mistake and must

reasonably limit their search accordingly.”                        Id. at 89 n.14.

                                        - 63 -
Thus,    we    must      determine       whether       the   ICE    agents       should      have

realized      this    alleged      factual       mistake      during       the    search      and

thus stopped the search at that time.

      Yanez’s claim founders for the simple reason that the ICE

agents reasonably believed that the Premises was a single-family

home when they arrived at the locked bedroom door.                                     A locked

bedroom door in a home does not necessarily mean or imply that

the home is a multi-unit dwelling.                      See United States v. Kyles,

40 F.3d 519, 523–24 (2d Cir. 1994) (permitting the search of a

locked     bedroom        inside     a       single-family         home     that       did    not

objectively        appear    to    be    a    separate       unit);      United    States      v.

Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991) (“A search warrant

for the entire premises of a single family residence is valid,

notwithstanding the fact that is was issued based on information

regarding      the    alleged      illegal       activities         of     one    of    several

occupants of a residence.”).                   Moreover, there is nothing special

or unusual about the bedroom door in this case that would have

put the agents on notice that it was an entrance to a separate

living unit.         Along a similar vein, Yanez mentions nothing about

the interior of the Premises that would have led the agents to

believe that it was a multi-unit dwelling.

      In any event, even if the ICE agents were somehow mistaken,

and   we      do   not    suggest        or    imply     they      were,    we     must      make

allowances for “honest mistakes that are made by officers in the

                                              - 64 -
dangerous and difficult process of making arrests and executing

search warrants.”           Garrison, 480 U.S. at 87.                Unlike Garrison,

in     which    the    officers        clearly    were     confronted        with     two

apartments where they expected to find only one, nothing in this

case should have made it obvious to the agents that the warrant

was overbroad.

       Yanez’s final claim concerning particularity is that the

search warrant is invalid because the affidavit did not list her

as an item to be seized.               This claim is premised on her claim

that    the    warrant      is   invalid    because      the     affidavit      did    not

identify       the    Premises    as    a    multi-unit         dwelling    and,      more

particularly, did not identify her separate dwelling unit as a

place to be searched.             Since we have rejected the premises on

which this final claim rests, we reject this claim as well.

                                            2

       Yanez also argues that the timing of the execution of the

search warrant--5:00 a.m. instead of between 6:00 a.m. to 10:00

p.m.--violated her Fourth Amendment rights.                          Basically, Yanez

contends       that   the   nighttime       execution      of    a   daytime    warrant

violates       the    Fourth     Amendment,       absent        consent    or   exigent

circumstances, which are not presented here. 15


       15
        Understandably, because the record must be viewed in a
light most favorable to Yanez, the government does not suggest
that exigent circumstances or consent excused the alleged
(Continued)
                                         - 65 -
                                            a

      The     Fourth          Amendment          protects      individuals            from

“unreasonable searches and seizures,” guaranteeing their right

“to be secure in their persons, houses, papers, and effects.”

U.S. Const. amend. IV.            That Amendment was specifically crafted

to thwart the unbridled discretion of law enforcement officers.

Our   Founding      Fathers      intended       to   impede   “the   abuses      of   the

general warrants that had occurred in England and of the writs

of assistance used in the Colonies.”                   Steagald v. United States,

451   U.S.   204,    220    (1981). 16       General     warrants     and    writs      of

assistance bestowed upon the executing officials a high degree

of deference and, crucially, “provided no judicial check” on a

judicial officer’s determination that an intrusion into a home

or dwelling house was justified.                 Id.    The Founders imposed that

missing “judicial check” by adopting the Fourth Amendment, which

requires     neutral       and    detached       judicial     officers      to   assess




failure to timely execute the warrant.
      16
       A general warrant, utilized extensively in England before
the American Revolution, “specified only an offense . . . and
left to the discretion of the executing officials the decision
as to which persons should be arrested and which places should
be searched.” Steagald, 451 U.S. at 220. Similarly, a writ of
assistance, utilized extensively by the English in the Colonies,
“noted only the object of the search--any uncustomed goods--and
thus left customs officials completely free to search any place
where they believed such goods might be.” Id.



                                         - 66 -
whether probable cause has been shown for searches of persons,

houses, papers, or effects.           Johnson v. United States, 333 U.S.

10, 13-14 (1948).       If probable cause exists and is shown under

oath, then a judicial officer is entitled to issue a warrant,

authorizing the appropriate search.

      Though the Fourth Amendment protects against unreasonable

searches    of    persons,    houses,      papers,   and     effects,    dwelling

houses      and      residences        are       protected      with      special

jealousy.       See Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013)

(“But when it comes to the Fourth Amendment, the home is first

among equals.”). 17     The common law viewed “a man’s house as his

castle     of     defense    and     asylum,”     warranting     even     greater

protection from intrusion.            Wilson v. Arkansas, 514 U.S. 927,

931   (1995)     (internal    quotation      marks   omitted).      Because     an

individual’s expectation of privacy is “at [its] apex in one’s

home,” United States v. Gray, 491 F.3d 138, 146 (4th Cir. 2007),

warrantless      searches    of    homes   are   unconstitutional       under   the

Fourth Amendment, Brigham City, Utah v. Stuart, 547 U.S. 398,

403 (2006), absent some type of justification.                   In exceptional


      17
        The Fourth Amendment’s guarantee against unreasonable
searches of “houses” extends to owners, boarders, and tenants of
homes, apartments, and other dwelling places. United States v.
Gray, 491 F.3d 138, 144 (4th Cir. 2007).    The Fourth Amendment
also protects travelers in hotels and motels, relatives who
regularly stay in a residence, and overnight guests. Id.



                                      - 67 -
situations,      law    enforcement       officers       may     be     justified    in

conducting      warrantless      searches        of    homes,     particularly       in

“exigent circumstances.”             Id. at 403-04. 18      A warrantless search

of a home pursuant to an occupant’s voluntary consent is also

reasonable      under    the     Fourth      Amendment.               Schneckloth     v.

Bustamonte,      412    U.S.     218,     219-23        (1973).          Absent     such

justification,       however,    warrantless          searches    of    dwellings    by

government agents are “the chief evil against which the wording

of the Fourth Amendment is directed.”                   Welsh v. Wisconsin, 466

U.S.    740,   748   (1984)     (citation    and       internal   quotation       marks

omitted).       The law is thus settled that the Fourth Amendment

shields     individuals       from     warrantless       intrusions       into    their

homes, even where probable cause otherwise exists to justify

searches.      Jones v. United States, 357 U.S. 493, 497-98 (1958).

       Our nation’s historic aversion to the warrantless searches

of dwelling houses and residences reaches its zenith when such

searches are conducted at night.                 Nighttime searches have long

       18
        Exigent circumstances justifying a warrantless search of
a home may include, by way of example:      fighting a fire and
investigating its cause; preventing the imminent destruction of
evidence; engaging in “hot pursuit” of a fleeing felon;
rendering emergency assistance to an injured occupant; or
preventing an occupant from imminent injury.    Stuart, 547 U.S.
at 403-04; see also Mincey v. Arizona, 437 U.S. 385, 393-94
(1978) (“[W]arrants are generally required to search a person’s
home or his person unless the exigencies of the situation make
the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.”
(internal quotation marks omitted)).


                                        - 68 -
been recognized as more intrusive than searches conducted during

the day.         See Coolidge v. New Hampshire, 403 U.S. 443, 477

(1971)     (characterizing                midnight        entry    into     dwelling      as

“extremely serious intrusion”).                    In fact, the Supreme Court has

deemed     it    “difficult         to     imagine    a    more    severe    invasion     of

privacy         than        the     nighttime        intrusion       into      a     private

home.”       Jones, 357 U.S. at 498.                      That proposition is valid

because, during the nighttime hours, searches of dwellings by

government agents tend to involve “rousing the residents out of

their beds, and forcing them to stand by in indignity in their

night clothes,” all of which “smack[s] of a police state lacking

in   the   respect          for”    individual       privacy      rights.      Gooding   v.

United     States,           416    U.S.    430,     462     (1974)       (Marshall,     J.,

dissenting)       (citation         and    internal       quotation    marks       omitted).

Thus, warrantless nighttime searches of homes were characterized

by the second Justice Harlan as creating “a grave constitutional

question.”        Jones, 357 U.S. at 499; see also Monroe v. Pape, 365

U.S. 167, 210 (1961) (Frankfurter, J., dissenting) (describing

warrantless nighttime searches of dwellings as “evil in its most

obnoxious form”).

      Rule       41     of    the    Federal       Rules     of     Criminal       Procedure

implements            the      Fourth       Amendment’s           protections        against

warrantless searches.               Jones, 357 U.S. at 498.            It provides that

a judicial officer must issue a search warrant if a federal law

                                            - 69 -
enforcement officer or an attorney for the government presents

an   affidavit         or    other     information   showing   probable     cause   to

search a property.             Fed. R. Crim. Proc. 41(b)(1).         Additionally,

Rule 41 sets forth procedures controlling the time at which a

warrant may be executed, reflecting that “increasingly severe

standards         of        probable     cause    are   necessary      to    justify

increasingly intrusive searches.”                    Gooding, 416 U.S. at 464.

Once issued, a warrant can normally be executed solely “in the

daytime,” between 6:00 a.m. and 10:00 p.m., “unless the judge

for good cause expressly authorizes execution” during the night.

Fed. R. Crim. P. 41(e)(2)(A)(ii). 19                 Good cause for a nighttime

warrant might exist, for example, where necessary to prevent the

destruction of evidence.                 See United States v. Searp, 586 F.2d

1117, 1121 (6th Cir. 1978) (“The Rule recognizes that there are

times      when   a     night    search     is   necessary;    if,   for    instance,

      19
       The relevant inquiry in determining when a search warrant
was executed is the time at which the search began, not when it
ended.   See, e.g., United States v. Keene, 915 F.2d 1164, 1167
(8th Cir. 1990).   Furthermore, it is generally recognized that
law enforcement officers who properly execute a daytime warrant,
between the hours of 6:00 a.m. and 10:00 p.m., may extend their
search into the nighttime hours.    See, e.g., United States v.
Squillacote, 221 F.3d 542, 556 (4th Cir. 2000) (“Because the
search of the Appellants’ home was commenced in the daytime, as
required by the warrant, the FBI agents reasonably could have
believed (if their actions after 10:00 p.m. could be considered
a search) that it was proper to continue the search into the
night.”); United States v. Burgard, 551 F.2d 190, 193 (8th Cir.
1977) (“Searches which began during daytime and continued into
the night have been held not to violate [Rule 41].”).



                                           - 70 -
execution would be impossible in the daytime or the property

sought is likely to be destroyed or removed before daylight.”).

Because of the separate, heightened burden of proof required for

issuance     of   a    nighttime      warrant,       the   existence       of    a    daytime

warrant       ordinarily          does         not         justify         a      nighttime

search.      O’Rourke v. City of Norman, 875 F.2d 1465, 1474 (10th

Cir. 1989).

                                            b

      That a nighttime search would be unconstitutional absent

consent or exigent circumstances if it was conducted under color

of a daytime warrant is not a novel concept.                               The Third and

Tenth Circuits have reached that very conclusion.                          See O’Rourke,

875 F.2d at 1474-75 (determining that nighttime search violated

Fourth Amendment despite daytime warrant); United States ex rel.

Boyance      v.     Myers,      398     F.2d     896,        899     (3d       Cir.       1968)

(same); United States v. Merritt, 293 F.2d 742, 746 (3d Cir.

1961) (same).           In    O’Rourke,    the       officers      obtained      a    daytime

bench warrant to arrest a third party for contempt of court.

875   F.2d     at      1467.       The     officers,         however,          entered     the

plaintiff’s residence during the nighttime hours and conducted a

search, contravening the explicit terms of the warrant.                                     Id.

In Boyance, two officers received reports that the petitioner

was   suspected        of    committing    a    burglary.          398     F.2d      at   897.

Thereafter,       at   1:00    a.m.,     the    officers      sought       a    warrant     to

                                          - 71 -
search the petitioner’s residence.                            Id.     The judge issued the

warrant, which indicated on its face that the officers were only

to “search in the daytime.”                      Id.         The officers disregarded the

terms    of    the     warrant,      however,           and       entered    the    petitioner’s

residence      at     2:30      a.m.          Id.            Similarly,      in    Merritt,        the

officers, after suspecting that the defendant was involved in

drug    activity,       obtained         a    warrant         explicitly      limited         to   the

daytime hours but executed it at the defendant’s apartment in

the nighttime.          293 F.2d at 743.                     In each of these cases, the

court    ruled      that     the    nighttime           searches       violated         the    Fourth

Amendment.

        In    reaching       their           determinations           that        the    nighttime

searches      violated       the    Fourth         Amendment,         the    Third       and    Tenth

Circuits      focused      on      the    scope         of    authority      conveyed         by   the

explicit terms of the search warrants.                               See, e.g., id. at 744

(determining that search warrant’s specific limitation “in the

daytime” was conclusive).                     Because each warrant authorized a

daytime search only, the warrant only could be executed during

daytime       hours.         As     the       courts         of    appeals    emphasized,           to

determine      otherwise          would      “completely            eviscerate      the       issuing

magistrate’s         determination            of    reasonableness,”              O’Rourke,        875

F.2d at 1474, and would “nullify the requirement of a prior

impartial       determination             that      a        particular      search       will     be

reasonable,”         Boyance, 398 F.2d at 898-99.

                                               - 72 -
                                           c

    Beyond the Third and Tenth Circuits, it is notable that the

Attorney General has taken the position that a daytime warrant

does not convey authority to conduct a nighttime search.                     Jones,

357 U.S. at 496.          In Jones, the prosecutors conceded in the

district     court     that,   “by    the      time   petitioner’s       house   was

searched [by law enforcement officers in the nighttime,] the

daytime search warrant had expired.”                   Id.      As a result, the

Attorney     General    disclaimed     to       the   Supreme    Court    that   the

officers had sought to execute the daytime warrant when they

commenced their nighttime search.                He contended, however, that

the search was nonetheless lawful because there was probable

cause to search the home.            Id.       Both the Fifth Circuit and the

Supreme Court accepted the Attorney General’s concession that

the nighttime search under color of a daytime warrant violated

the Fourth Amendment, and, thus, assessed whether the search of

a home without a warrant but with probable cause that contraband

would be found there violated the Fourth Amendment.                        See id.

(recognizing that officers’ “daytime search warrant had expired”

when it was executed in nighttime); Jones v. United States, 245

F.2d 32, 34 (5th Cir. 1957) (“[T]he[] [officers] did not execute

the day[time] search warrant.”).                The Court concluded that such

a search was not compatible with the Fourth Amendment, reasoning

that,   if   “federal     officers    [were]      free   to     search   without   a

                                      - 73 -
warrant    merely     upon     probable       cause      to    believe         that       certain

articles      were    within     a    home,       the   provisions            of    the    Fourth

Amendment     would     become       empty    phrases,        and       the    protection        it

affords largely nullified.”             Jones, 357 U.S. at 498.

                                              d

      Following the persuasive decisions of the Third and Tenth

Circuits, as well as the Supreme Court’s decision in Jones where

the   Court    accepted       that     the    government’s           concession           that   a

nighttime      search     conducted          pursuant     to        a     daytime         warrant

violated      the    Fourth    Amendment,          we   hold        that      the    nighttime

execution of a daytime warrant violates the Fourth Amendment,

absent consent or exigent circumstances. 20

      In so holding, we note that our court, in an unpublished


      20
        Although the nighttime execution of a daytime warrant is
a Fourth Amendment violation, absent justification, some courts
have excused the execution of a search warrant past its
expiration date.    These courts have inquired into whether the
probable cause that supported the warrant’s issuance continued
to exist at the time of the search. See, e.g., United States v.
Burgess, 576 F.3d 1078, 1096-97 (10th Cir. 2009) (deeming search
warrant valid forty-four days after expiration date because
“[p]robable   cause   to  search  was   unaffected”  by  delay).
Executing a warrant beyond its facial expiration date where
probable cause remains present, however, is materially distinct
from seeking to execute a daytime warrant during the nighttime
where there is no showing that a nighttime search is required.
In the former scenario, the magistrate unquestionably would
reissue the warrant for the search because probable cause is
still present, while in the latter scenario, there is no basis
in which to conclude that the magistrate would issue, let alone
reissue, the warrant to authorize a nighttime search that is not
required.


                                         - 74 -
opinion,    has    treated   a    nighttime      search     conducted    under   the

aegis of a daytime warrant as a mere Rule 41 violation, rather

than as an unconstitutional search.              See United States v. Davis,

313 F. App’x 672, 674 (4th Cir. 2009).                 In concluding that the

defendant’s suppression motion was properly denied, the Davis

court     relied    on     precedent     not     involving       an    unauthorized

nighttime search, but rather on precedent that states that a

Rule 41 violation will result in suppression only if the party

seeking     suppression      suffered     prejudice         or   the     government

intentionally violated the rule.                See id. (citing Hurwitz, 459

F.3d at 472 n.6).          Some of our sister circuits have employed

that same standard in refusing to suppress evidence obtained

during unauthorized nighttime searches.                   See United States v.

Schoenheit, 856 F.2d 74, 76-77 (8th Cir. 1988); Searp, 586 F.2d

at 1124-25; United States v. Burke, 517 F.2d 377, 385-87 & n.14

(2d Cir. 1975).          Those courts have considered factors such as:

whether good cause could have been shown for a nighttime warrant

had one been requested; whether the executing officers believed

in good faith they had authority to conduct a nighttime search;

whether the search was executed a short time before or after

nighttime;    and   whether      the   search    was   in    fact     more   abrasive

because it was conducted in the nighttime.                   See Schoenheit, 856

F.2d at 76-77; Searp, 586 F.2d at 1124-25; Burke, 517 F.2d at

385-87 & n.14.      For the reasons we espouse, we decline to follow

                                       - 75 -
the        Second,      Sixth,      and      Eighth     Circuits          or     our

nonprecedential       Davis      decision.     See    Collins    v.   Pond     Creek

Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (“[W]e ordinarily

do    not      accord      precedential      value     to     our     unpublished

decisions.”).        Instead, we adhere to the well-reasoned decisions

of    the    Third   and    Tenth    Circuits,   and    the     Supreme    Court’s

decision in Jones. 21


      21
        In United States v. Rizzi, 434 F.3d 669 (4th Cir. 2006),
we held that 21 U.S.C. § 879 (“A search warrant relating to
offenses involving controlled substances may be served at any
time of the day or night if the judge or United States
magistrate issuing the warrant is satisfied that there is
probable cause to believe that grounds exist for the warrant and
for its service at such time.”) and not Rule 41(e)(2)(A)(ii)
(commanding executing officer to execute “the warrant during the
daytime, unless the judge for good cause expressly authorizes
execution at another time”) governs a search warrant issued in a
drug case.      Id. at 671-75.     We further held that § 879
authorizes a warrant in a drug case to be executed “day or night
so long as the warrant itself is supported by probable cause.”
Id.   at   674.      Of   note, in   rejecting  the   defendant’s
constitutional challenge to § 879 based on the argument that
§ 879 could not provide a blanket authorization for a nighttime
search, we noted that the “Supreme Court . . . has never held
that the Fourth Amendment prohibits nighttime searches, despite
the disapproval voiced occasionally by a Justice in dissent.”
Id. at 675.       We further noted that “constitutionalizing a
standard for when warrants can be served would involve so many
variables that any rule would be difficult to articulate, much
less serve as a component protection of the Fourth Amendment.”
Id. We do not read our Rizzi decision as foreclosing the result
we reach here, namely, that a nighttime execution of a daytime
warrant, absent justification, violates the Fourth Amendment.
Rizzi involved a valid warrant that was validly executed at
night.    Our case involves a valid warrant that was invalidly
executed at night.     It is the invalid execution that rendered
the search here unconstitutional under the Fourth Amendment, not
the fact that a nighttime search took place.     To be sure, for
(Continued)
                                      - 76 -
                                             e

     Applying        the     foregoing       principles          to     Yanez’s       Fourth

Amendment timing claim reveals that the 5:00 a.m. search of the

Premises    violated        the   Fourth     Amendment.           Not    only     did      the

magistrate    judge        specify    that       the    search    warrant      was    to    be

executed in the daytime, he crossed out and explicitly rejected

the alternative option that would have allowed the search to

occur in the nighttime.              Cf. Youngbey v. March, 676 F.3d 1114,

1125 (D.C. Cir. 2012) (determining that nighttime search was

reasonable     under        warrant     explicitly         authorizing         search       in

daytime or nighttime).               There is no indication that the ICE

agents     sought     or     were     granted          verbal    permission          by    the

magistrate     judge        to    execute        the    warrant       during    nighttime

hours.     Cf. United States v. Katoa, 379 F.3d 1203, 1207-08 (10th

Cir. 2004) (finding nighttime search reasonable where judge who

issued     daytime     warrant        authorized         nighttime       search       during

subsequent    phone        call      with    officers).           Nor     is    there       an

indication that any new facts were developed, after the warrant

was issued, to support a nighttime search of the Premises.                                And,

as noted earlier, there is no evidence concerning the presence



Fourth Amendment purposes, the nighttime search here rendered
the search itself warrantless because the magistrate judge’s
reasonableness finding was premised on a daytime search; by
contrast, the nighttime search in Rizzi did not involve a
warrantless search.


                                        - 77 -
of consent or exigent circumstances that would have justified

the nighttime execution of the daytime warrant.

      Rather, the facts are that the ICE agents secured a daytime

warrant     and    decided        to    execute       it     during      the       nighttime,

exceeding         the     authority           granted         by        the        magistrate

judge.     See United States v. Vigo, 413 F.2d 691, 693 (5th Cir.

1969)    (reasoning       that    the     “validity        [of     a   daytime       warrant]

required it be served in the daytime”).                       Because the magistrate

judge    explicitly       rejected      a     nighttime      search,         the   warrant’s

daytime      restriction           must        be      construed             against      the

agents.     See United States v. Kelley, 652 F.3d 915, 917 (8th

Cir. 2011) (“[W]hen police intend at the time they apply for a

warrant to execute the search at night, it is unreasonable under

the Fourth Amendment not to disclose that intent to the issuing

magistrate and to seek express authorization for the night-time

search.”).

      At bottom, Yanez’s suppression motion implicates a simple

rule: a daytime warrant does not authorize a nighttime search.

The   government        implies    that      5:00     a.m.    essentially          is   “close

enough”    to     6:00    a.m.    in    the    eyes    of    the       Fourth      Amendment.

Notably,     however,       as     John       Adams    observed         in     successfully

defending       British    soldiers         charged     in    the      Boston      Massacre,

“[f]acts are stubborn things.”                 David McCullough, John Adams 52

(2001).     And the stubbornest fact here is that 5:00 a.m. is not

                                          - 78 -
6:00 a.m.    At 6:00 a.m., the warrant sanctioned the ICE agents

to enter into the Premises.             At 5:00 a.m., the warrant did not

permit such an entry.            Because the nighttime execution of the

daytime warrant violated Yanez’s Fourth Amendment rights, as it

was executed without consent or exigent circumstances, we must

turn to the question of whether the agents egregiously violated

Yanez’s Fourth Amendment rights.

                                         f

      As noted above, the question of egregiousness turns on an

evaluation of the totality of the circumstances.                    There are two

circumstances   that      support    Yanez’s      egregiousness      claim.       The

first is that the Fourth Amendment violation occurred in her

home, where her privacy interests are strong.                  Jardines, 133 S.

Ct. at 1414.    The second is that the entry occurred during the

night,   a   time    of    day    jealously       protected    by    the     Supreme

Court.   Coolidge, 403 U.S. at 477.

      On the other side of the ledger, several factors weigh in

the   government’s    favor.        There    is   no    evidence    that    the   ICE

agents   threatened,      coerced,      or   physically       abused     Yanez,   or

promised her anything for her cooperation.                    Unlike Umana and

Mendoza, she was never handcuffed and was allowed to remain at

the Premises following the search.                 There is no evidence of

diminished    capacity      on    the    part      of    Yanez,     or     that   the

questioning of her was particularly lengthy.                       Also, there is

                                     - 79 -
nothing in the record to suggest that the agents were motivated

by racial considerations, and there is no evidence of improper

intent on the part of the agents. 22

      While    the     totality        scales      at    this    point        tilt    in    the

government’s favor, two additional facts seal Yanez’s fate: (1)

the ICE agents prepared a valid search warrant; and (2) the

magistrate judge found the existence of probable cause to search

the Premises in the daytime.                 As to the validity of the warrant,

Agent Coker prepared a detailed and thorough affidavit laying

out   the    facts    in   support      of      probable      cause     to    believe       that

illegal aliens (and evidence of the harboring of illegal aliens)

would be found in the Premises during a search.                              Yanez makes no

challenge     to     the   accuracy        of    the    facts    set    forth        in    Agent

Coker’s affidavit, other than the description of the Premises as

a single-story, single-family home.                      Under such circumstances,

there      simply     is   no      doubt     that       the   warrant         was    facially

valid.      Cf. Franks v. Delaware, 438 U.S. 154, 155-56 (1978)

(holding      “that,       where     the        defendant       makes    a      substantial

preliminary         showing     that    a       false     statement          knowingly      and

intentionally, or with reckless disregard for the truth, was

      22
        Indeed, considering the circuit split on whether the
nighttime execution of a daytime warrant, without consent or
exigent circumstances, is a Fourth Amendment violation, it
cannot credibly be argued that the ICE agents in this case
intentionally violated the Fourth Amendment rights of Yanez by
entering the Premises an hour before the warrant permitted.


                                           - 80 -
included by the affiant in the warrant affidavit, and if the

allegedly     false          statement               is   necessary                 to     the    finding          of

probable cause, the Fourth Amendment requires that a hearing be

held   at    the    defendant’s                  request”).                   As    to    the     presence         of

probable cause, the facts set forth in the affidavit undeniably

support           the            magistrate                  judge’s                     probable             cause

finding.       See          Illinois            v.   Gates,           462      U.S.       213,     238    (1983)

(defining the test for probable cause as “whether, given all the

circumstances           .    .     .        ,    there       is       a        fair       probability          that

contraband or evidence of a crime will be found in a particular

place”).          The        agents             conducted         a       painstaking             surveillance

operation     that          produced            evidence      of          a    fair       probability         that

illegal aliens (and evidence of the harboring of illegal aliens)

would be found during a search of the Premises.                                             Like the facial

validity     of     the       warrant,               Yanez    makes                no    challenge       to    the

magistrate judge’s probable cause finding.

       The   presence            of    a        valid     search          warrant          supported          by    a

magistrate judge’s probable cause finding diminishes the degree

of     the    intrusion                 on           a    resident’s                     Fourth     Amendment

interests.         Cf. Michigan v. Summers, 452 U.S. 692, 701 (1981)

(noting that “[o]f prime importance in assessing the intrusion

[on the defendant’s privacy and liberty] is the fact that the

police had obtained a warrant to search [defendant’s] house for

contraband”).               This       is       so   because          the          magistrate       judge      has

                                                     - 81 -
“authorized           a    substantial       invasion        of     the         privacy”       of    the

persons residing in the place to be searched.                                Id.

       In    Cotzojay,         the      alien’s    privacy        interests            continued       to

remain at their zenith--the search took place at night in the

alien’s home and the ICE agents did not attempt to procure a

warrant.          Because         the     agents    never     attempted            to    procure       a

warrant, it is not surprising that the court there concluded

that   a    nighttime         warrantless          search     was      egregious         where        the

alien’s privacy interests were so compelling and the conduct of

the agents deplorable.                    But cf. Martinez Carcamo, 713 F.3d at

923 (holding that Fourth Amendment violation was not egregious

where ICE agents did not attempt to obtain a search warrant and

entered      the          alien’s    home     before     approximately                 6:00     a.m.).

However, in our case, Yanez’s privacy interests were lower than

those in Cotzojay and the conduct of the agents different.                                            The

agents      in    our      case     had    authorization          to       search,      but    not     at

night.           Thus,      our     case    simply      is    not          on    the    same        plane

as Cotzojay.

       Put another way, if law enforcement officers do not attempt

to   secure       a   valid       warrant    supported        by       a    magistrate         judge’s

probable cause finding (as in Cotzojay), their conduct is more

egregious than law enforcement officers who take the time to

prepare a valid warrant and present it to a magistrate judge for

a    probable         cause       finding.         In   the       latter         case,        the     law

                                              - 82 -
enforcement       officers’      conduct        is      less       offensive--they          have

sought      and   received      authorization            for        a     privacy     interest

invasion--while        in     the     former         case,         the     law     enforcement

officers’     conduct       borders        on    abhorrent,             which     renders    the

intrusion more severe and, hence, egregious. 23

      Sensing that she suffered a “mere garden-variety” violation

of her Fourth Amendment rights, Garcia-Torres, 660 F.3d at 336,

Yanez claims her case for egregiousness is buttressed by the

excessive force used by the ICE agents in executing the warrant.

Unfortunately      for      Yanez,    the       force    used        by    the     agents    was

reasonable.

      The    Supreme     Court       has    repeatedly          made       clear     that    law

enforcement       officers,      when       executing          a        search,     “may    take

reasonable action to secure the premises and to ensure their own

safety and the efficacy of the search.”                        Los Angeles Cnty., Cal.

v. Rettele, 550 U.S. 609, 614 (2007).                          It is for this reason

that the Supreme Court has underscored that officers may detain

the      occupants       of    the         premises          while          a     search      is

      23
        Interestingly, had the ICE agents in Cotzojay obtained a
daytime warrant and executed it at night, the Second Circuit
would not have assessed the claim for Fourth Amendment
egregiousness because such claims in the Second Circuit are
analyzed under a Rule 41 harmless error analysis.     See Burke,
517 F.2d at 385-87 & n.14 (applying harmless error analysis to
Rule 41 nighttime execution violation).   The upshot of this is
that a nighttime execution of a daytime warrant is not a
constitutional violation, let alone an egregious constitutional
violation, in the Second Circuit.


                                           - 83 -
conducted.        Summers, 452 U.S. at 705.                 Such detentions, the

Court has noted, are appropriate “because the character of the

additional intrusion caused by detention is slight and because

the justifications for detention are substantial.”                            Muehler v.

Mena,      544   U.S.    93,     98       (2005). 24      “Inherent         in     Summers’

authorization to detain an occupant of the place to be searched

is   the    authority     to    use   reasonable        force    to    effectuate      the

detention.”       Id. 98–99.

      Claims of excessive force are analyzed under the Fourth

Amendment’s       objective       reasonableness         standard,          judging    the

“reasonableness of a particular use of force . . . from the

perspective of a reasonable officer on the scene.”                               Graham v.

Connor, 490 U.S. 386, 395–96 (1989) (internal quotation marks

omitted).        Generally, such claims require “a careful balancing

of the nature and quality of the intrusion on the individual’s

Fourth       Amendment         interests        against      the        countervailing

governmental interests at stake.”                   Id. at 396 (quoting Tennessee

v.   Garner,     471    U.S.    1,    8    (1985))     (internal      quotation       marks

omitted).

      The    force      here    at    issue     consisted       of    the    ICE    agents

      24
         The reasonableness of the seizure in Summers was
justified by three law enforcement objectives: (1) “preventing
flight in the event that incriminating evidence is found”; (2)
“minimizing the risk of harm to the officers”; and (3)
facilitating “the orderly completion of the search” with the
assistance of the detained occupants. 452 U.S. at 702–03.


                                           - 84 -
breaking down Yanez’s bedroom door, shouting “police” and “don’t

move,” pointing a gun at her, and leading her downstairs at

gunpoint    to       the    living   room       couch.          (J.A.    142).    Summers

stresses that the risk of harm to officers and occupants is

minimized       if    the    officers       routinely        exercise       “unquestioned

command of the situation.”                452 U.S. at 703.               Yanez was living

in   a   home    that      the   agents,    based       on   extensive      surveillance,

suspected housed illegal aliens.                       For the safety of everyone

involved,       including        Yanez,     the        agents     were     authorized    to

exercise unquestioned command of the situation by breaking the

locked bedroom door down, shouting “police” and “don’t move”,

and leading Yanez downstairs at gunpoint.                           (J.A. 142).         Such

actions in securing the home ensured there was no danger to the

agents, the occupants, or the public.                        Once she arrived on the

couch,    Yanez      was    subjected      to     no    further     exercise     of   force

during her detention, and, as noted, she was never handcuffed

during the encounter.             Cf.     Mena, 544 U.S. at 98 (upholding the

use of handcuffs during a two- or three-hour detention during

execution of search warrant for weapons).                               Moreover, weapons

were drawn no longer than necessary to secure the location in a

potentially volatile situation.                   Cf. Maryland v. Buie, 494 U.S.

325, 335-36 (1990) (noting that a protective sweep may last “no

longer than is necessary to dispel the reasonable suspicion of

danger” and “no longer than it takes to complete the arrest and

                                           - 85 -
depart      the   premises”).   The   force    used   here   by   the   agents

unquestionably was measured and by no means excessive (in the

constitutional sense or otherwise).           As such, the amount of such

force does not help Yanez’s egregiousness claim based on the

timing of the search. 25

      Our discussion of the totality of the circumstances leads

us to conclude that the Fourth Amendment violation here lacks

the        severity    necessary      to    support     a     finding       of

egregiousness.        Almeida-Amaral, 461 F.3d at 235.        We hold that,

although the nighttime execution of the daytime warrant violated


      25
        Because we hold that the force used by the ICE agents was
measured and not excessive in the constitutional sense, we
reject Yanez’s stand-alone egregious Fourth Amendment violation
claim based on the amount of force used by the agents.
Moreover, to the extent that Yanez challenges the scope and
duration of her seizure on Fourth Amendment egregiousness
grounds, we reject this argument on the basis that her seizure
was reasonable in its scope and duration.      Under Summers, law
enforcement officers are entitled to detain occupants of a
premises for the whole length of most warranted searches.     452
U.S. at 705 n.21 (acknowledging possible exceptions to the
Summers   rule   for   “special  circumstances”   and  “prolonged
detention[s],” implying that the general rule of routine
detention of residents of a house while it was being searched
for contraband pursuant to a warrant confers the power to detain
occupants for the length of such “routine” searches); see also
Mena, 544 U.S. at 98 (holding that the resident’s “detention for
the duration of the search was reasonable under Summers because
a warrant existed to search [the premises] and she was an
occupant of that address at the time of the search”). In light
of the two- or three-hour detention of an innocent bystander
deemed “plainly permissible” by the Supreme Court in Mena, we
cannot conclude that Yanez’s seizure here became egregiously
unconstitutional over time. 544 U.S. at 98.



                                   - 86 -
Yanez’s     Fourth      Amendment        rights,         such     violation       was     not

egregious       under       the     totality            of      the      circumstances. 26

Accordingly, both the IJ and the BIA correctly resolved this

Fourth Amendment claim against Yanez.

                                               3

     Yanez also argues that her statements to the ICE agents

were involuntary and, thus, were used against her in violation

of   her    rights     under      the    Due       Process      Clause    of     the    Fifth

Amendment.       See Bustos–Torres v. INS, 898 F.2d 1053, 1057 (5th

Cir. 1990) (“Because deportation hearings must conform to due

process     standards,      however,      an       alien’s   involuntary         statements

cannot     be   used   against     him    in       a   deportation       hearing.”);      see

also Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008) (“The

Federal     Rules      of    Evidence          do      not   apply       in     immigration

proceedings, and evidentiary determinations are limited only by

due process considerations.”).                 To establish that her statements

were involuntary, Yanez “must show coercion, duress, or improper

action” by the agents that overbore her will.                                 Puc–Ruiz, 629

     26
        We note that, even under the Ninth Circuit’s more alien-
friendly qualified immunity egregiousness standard, Yanez would
not prevail.   As noted in Footnote 22, the law is unsettled on
the question of whether the nighttime execution of a daytime
warrant, without consent or exigent circumstances, is a Fourth
Amendment violation.   Given the state of the law, it cannot be
said that the ICE agents in our case acted pursuant to the
“unequivocal doctrinal backdrop” necessary for a finding of
egregiousness   under    the  Ninth   Circuit’s   more   lenient
egregiousness standard. Martinez-Medina, 673 F.3d at 1035.


                                         - 87 -
F.3d at 779.

       The allegations presented to the IJ failed to establish

a prima facie case of involuntariness.                        Yanez did not submit

evidence of promises, prolonged questioning, interference with

her right to counsel, or other indicia of coercion or duress

that might suggest that her statements were involuntary, and she

was    never    handcuffed        during     the    entire    episode.        See    Lopez-

Gabriel, 653 F.3d at 687 (“Without more, prompt questioning of a

handcuffed          detainee      by    an     armed       and      uniformed       officer

without Miranda warnings, and questioning by ICE agents after an

arrest, are not sufficient to mandate a hearing or to justify

suppression in an immigration proceeding.”); id. (cases cited

therein).       Accordingly, like both the IJ and the BIA, we must

reject Yanez’s Fifth Amendment Due Process Clause claim.

       In so rejecting, we note that Yanez’s heavy reliance on the

Second Circuit’s decision in Singh v. Mukasey, 553 F.3d 207 (2d

Cir.    2009),       is     misplaced.         In    Singh,      the    Second      Circuit

suppressed       a    signed      statement        made    during      an   interrogation

because the officers’ conduct “undermined the reliability of the

evidence       in    dispute.”         Id.    at     215    (citation       and   internal

quotation marks omitted).                The court found that the alien was

questioned for four hours in a border inspection station “where

armed, uniformed officers were circulating,” was repeatedly told

he    would    be    sent    to   jail,      broke    down    and    cried    during    the

                                           - 88 -
interrogation        that    occurred      in    the    middle     of   the     night,   was

awake for twenty-four hours, and did not read the statement he

signed that contained admissions he allegedly had made.                                  Id.

The court also noted that the interrogating officer persisted in

asking the alien the same question until he got the answer he

wanted.       Id. at 216.            Ultimately, the court found that the

statements at issue were “nuanced and susceptible to corruption”

and were therefore excludable.                  Id.     According to the court, the

statements were not related to “simple, specific, and objective

facts,” such as “whether a person is a foreign citizen or has a

passport and valid visa.”                  Id.        Because the statements were

unreliable, the court excluded them.                    Id. at 215.

      Although        the    court    in        Singh    discussed       the     egregious

violation exception in Lopez-Mendoza, id. at 215-16, the court

did    not    explicitly      state     whether         the   signed      statement      was

suppressed      because      there     was      an     egregious       Fourth    Amendment

violation or because there was an egregious Fifth Amendment Due

Process      Clause    violation.          In    excluding       the    statements,      the

court stated only that, “[e]ven assuming that the conduct here

was not ‘egregious,’ it nonetheless undermined the reliability

of the evidence in dispute.”                 Id. at 215 (citation and internal

quotation marks omitted).             Thus, the court excluded the evidence

on    the    basis    that    the     unspecified         constitutional         violation

undermined the probative value of the challenged evidence.                            Id.

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       The Second Circuit’s decision in Singh hurts rather than

helps Yanez’s cause.           As noted earlier, Yanez does not challenge

the reliability of the evidence obtained as a result of the

alleged wrongful interrogation, which was the basis on which the

court in Singh suppressed the challenged statements.                              Moreover,

the    circumstances         surrounding     the      questioning        of   the       alien

in Singh were decidedly more coercive than the questioning of

Yanez in this case.            Unlike Singh, Yanez was questioned at home

for a brief period of time, and she was not repeatedly told she

would be taken to jail.             Moreover, unlike the nuanced statements

in Singh, the questioning of Yanez was designed to obtain simple

and objective factual statements, which it did.                       Finally, unlike

the    atmosphere       in     Singh,     where       the     investigating           officer

repeatedly asked the same question until he got the answer he

wanted, such was not the case here.

                                            4

       Finally, we turn to Yanez’s argument that the ICE agents

failed    to    follow       five   regulations,        in    particular,         8   C.F.R.

§ 287.8(a)(1)(iii)           (regulating        use    of     non-deadly          force      by

agents), 8 C.F.R. § 287.3(c) (mandating advice concerning right

to    counsel),   8     C.F.R.      §   287.8(b)(2)         (regarding    authority          to

briefly        detain         aliens      for         questioning),           8        C.F.R.

§ 287.8(c)(2)(i)         (concerning      power       to     arrest   aliens),         and   8

C.F.R. §       287.8(c)(2)(ii) (explaining requirement for obtaining

                                         - 90 -
warrant prior to arresting alien).                We have recognized that “an

agency’s failure to afford an individual procedural safeguards

required     under    its      own       regulations         may     result       in    the

invalidation          of             the          ultimate             administrative

determination.”      United States v. Morgan, 193 F.3d 252, 266 (4th

Cir. 1999).     However, an administrative determination will not

be   invalidated     unless       there    is:    (1)    a    violation       (2)      of    a

regulation    intended      for    the     alien’s      benefit      (3)   that     causes

prejudice to the alien.           Id.

      We   reject    Yanez’s      reliance       on    the    five    regulations           at

issue.     First off, 8 C.F.R. § 287.12 prohibits any construction

of Part 287 of the Code of Federal Regulations “to create any

rights, substantive or procedural, enforceable at law by any

party in any matter, civil or criminal.”                     8 C.F.R. § 287.12.             As

such, Yanez arguably suffered no prejudice.                     Cf. Navarro-Chalan,

359 F.3d at 23 (“Finally, even if § 287.3 were applicable and

were violated, INS regulations state that § 287.3 and the other

regulations in its subpart “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.” (citation and internal

quotation    marks    omitted)).           In    any    event,     even    assuming         a

violation of the regulations in Part 287 creates an avenue for

suppression, Yanez’s regulatory claims are without merit, either

                                         - 91 -
because     the   regulation       is     inapplicable,        see   Oliva-Ramos,      694

F.3d at 286 (stating that formal proceedings do not begin until

a Notice to Appear is filed in immigration court, at which point

8 C.F.R. § 287.3(c) is triggered), or redundant to our prior

analyses,     see    8    C.F.R.     §    287.8(a)(1)         (prohibiting      excessive

force, which did not exist here), id. § 287.8(b)(2) (permitting

a   brief    detention       for     questioning         if    there     is   reasonable

suspicion     that    a    person    is       an    illegal    alien--such      suspicion

obviously was present and, in any event, Yanez’s detention was

permitted while the diligent search took place), id. § 287.8(c)

(circumscribing          “arrests”       to   certain    contexts--Yanez         was   not

arrested,     but    rather    permissibly           detained    while    the    diligent

search was conducted).



                                              III

     For the reasons stated herein, we deny Yanez’s petition for

review.

                                                                       PETITION DENIED




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