     11-4916-ag
     Doroteo Sicajau Cotzojay v. Holder

 1
 2                    UNITED STATES COURT OF APPEALS
 3
 4                         FOR THE SECOND CIRCUIT
 5
 6
 7
 8                            August Term, 2012
 9
10        (Argued: March 14, 2013              Decided: July 31, 2013)
11
12                          Docket No. 11-4916-ag
13
14
15                       DOROTEO SICAJAU COTZOJAY,
16
17                               Petitioner,
18
19                                        v.
20
21                         ERIC H. HOLDER, JR.,
22                   UNITED STATES ATTORNEY GENERAL,
23
24                               Respondent.
25
26
27
28
29   Before:
30
31       WESLEY, DRONEY, Circuit Judges, NATHAN, District Judge.*
32
33        Petitioner Doroteo Sicajau Cotzojay (“Sicajau”) appeals
34   from the October 31, 2011 decision of the Board of
35   Immigration Appeals (the “BIA”) dismissing Sicajau’s appeal
36   from the Immigration Judge’s (the “IJ”) July 17, 2009 order
37   of removal and the IJ’s April 21, 2009 oral decision denying


          *
            The Honorable Alison J. Nathan, of the United States
     District Court for the Southern District of New York, sitting by
     designation.
 1   Sicajau’s motion to suppress the Government’s evidence of
 2   alienage. Immigration and Customs Enforcement (“ICE”)
 3   officers obtained this evidence during an April 2007
 4   nighttime, warrantless raid on Sicajau’s home. The IJ
 5   denied Sicajau’s motion to suppress after finding that
 6   Sicajau had not shown that ICE officers entered his home
 7   without consent and that, regardless, the ICE officers’
 8   conduct was not sufficiently “shocking” to qualify as
 9   egregious and require application of the exclusionary rule
10   in this civil removal proceeding. The BIA affirmed the
11   denial of Sicajau’s motion to suppress and the subsequent
12   order of removal. Because we find that the IJ erroneously
13   interpreted our case law to require physical threat or harm
14   before a Fourth Amendment violation becomes sufficiently
15   egregious to require suppression, and thus erred by refusing
16   to shift the burden of proof to show consent to the
17   Government, we VACATE and REMAND the BIA’s decision
18   affirming the IJ’s denial of Sicajau’s motion to suppress
19   and order of removal.

20       VACATED AND REMANDED.

21
22
23            HEATHER Y. AXFORD (Anne Pilsbury, Alexandra
24                 Goncalves-Peña, on the brief), Central
25                 American Legal Assistance, Brooklyn, NY, for
26                 Petitioner.
27
28            NICOLE THOMAS-DORRIS, Trial Attorney, Office of
29                 Immigration Litigation, Civil Division (Stuart
30                 F. Delery, Acting Assistant Attorney General,
31                 Civil Division, Mary Jane Candaux, Assistant
32                 Director, on the brief), United States
33                 Department of Justice, Washington, DC, for
34                 Respondent.
35
36            Nancy Morawetz, Nikki Reisch, Legal Intern,
37                 Washington Square Legal Services, Immigrant
38                 Rights Clinic, New York, NY, for Amici Curiae
39                 Lutheran Social Services of New York, Families
40                 for Freedom, New Sanctuary Coalition of New
41                 York City.
42


                                  2
 1   WESLEY, Circuit Judge:

 2        On April 16, 2007, at approximately 4:00 a.m.,

 3   Petitioner Doroteo Sicajau Cotzojay (“Sicajau”)1 awoke to

 4   hear people knocking on windows and doors at the duplex that

 5   he shared with approximately twenty people in Riverhead, New

 6   York.2     The individuals surrounding Sicajau’s home

 7   identified themselves as police or probation officers and

 8   asked to speak with a man named Jose Cojon (“Cojon”).            The

 9   “officers” were Immigration and Customs Enforcement (“ICE”)

10   officers.      Sicajau observed Cojon (who lived in the next

11   room) leave the house with his passport.          The door to the

12   house then closed behind him.          Sicajau remained in his

13   bedroom on the first floor of the house with his door

14   locked.     He heard steps on the first floor and then heard

15   people pounding on his bedroom door.          Fearing that officers

16   would force their way into his room, Sicajau opened the

17   door.     Armed ICE officers entered the room, placed Sicajau

18



          1
              Petitioner’s attorney refers to him as “Sicajau.”
          2
            The factual record in this case is limited to Sicajau’s
     affidavit and testimony before the IJ and the testimony of one of
     his neighbors, Jose Anibal Ochoa. The Government did not submit
     any affidavits or witnesses directly addressing the circumstances
     of Petitioner’s arrest.

                                        3
 1   in handcuffs and took him to the living room, where he was

 2   searched and instructed to remain on the floor.

 3       The officers asked Sicajau for identification and

 4   rejected his high school identification card – Sicajau had

 5   recently turned twenty years old.     They then took him back

 6   to his bedroom and searched through the contents of his

 7   drawers until they located his Guatemalan passport.     ICE

 8   officers loaded Sicajau and the majority of the people who

 9   lived at the duplex into a van.     The officers drove the van

10   to another house where they arrested several more people

11   before proceeding to a McDonald’s, where the officers had

12   breakfast; the officers told Sicajau and the detainees in

13   the van they could relieve themselves in the restaurant

14   parking lot if the need arose.

15       ICE officers took Sicajau to 26 Federal Plaza in New

16   York City and placed him in a cell.     He was given a sandwich

17   and a bottle of water.   Subsequently, officers took

18   Sicajau’s photograph and his fingerprints before questioning

19   him in English (which he does not speak well) about his

20   immigration status and asking him to sign numerous

21   documents.   Sicajau was told he “could be in even bigger

22   problems” if he didn’t sign the documents.     Joint App’x 149-


                                   4
 1   50.   After Sicajau complied and officers completed a Form I-

 2   213, the Record of Deportable/Inadmissible Alien, ICE

 3   officers informed Sicajau that he had the right to an

 4   attorney.     Sicajau was released at approximately 10:00 p.m.

 5   that evening.

 6   Prior Proceedings

 7         After the Government instituted removal proceedings,

 8   Sicajau filed a motion to suppress the Government’s evidence

 9   of alienage, specifically, Sicajau’s Guatemalan passport,

10   the I-213 and the statements memorialized therein, and any

11   other documents seized by, or statements made to, ICE

12   officers.     Sicajau argued that ICE officers obtained this

13   evidence in violation of his Fourth and Fifth Amendment

14   rights.     Sicajau contended that ICE officers had “forcibly

15   gained entrance” to his home and arrested him without a

16   warrant or probable cause.     Id. at 250.   In support of his

17   motion to suppress, Sicajau submitted a sworn statement.

18   His affidavit asserted that he was “asleep in [his] bedroom”

19   when he was “suddenly awoken at 4 A.M.” by knocking at his

20   window and voice yelling “‘Police!     Open up.’”   Id. at 252.

21   Regarding the officers’ initial entry and exit from his

22   home, Sicajau averred that he


                                     5
 1             opened [his] bedroom door to see what was
 2             going on when [he] saw Jose Cojon leaving
 3             with a group of armed officers through
 4             the main door. After this [Sicajau’s]
 5             sister in law closed and locked the front
 6             door. [Sicajau] returned to [his]
 7             bedroom.
 8
 9   Id.   Sicajau’s affidavit does not explain when or how the

10   officers re-entered the home because he had “decided to stay

11   in [his] room.”   Id.

12         In April 2009, Immigration Judge Robert D. Weisel (the

13   “IJ”) held a suppression hearing based on a “preliminary

14   ruling that [Sicajau’s] affidavit alone constituted prima

15   facie evidence” sufficient to entitle Sicajau to a hearing.

16   Id. at 100.   However, the IJ was of the view that Sicajau’s

17   affidavit was “not in and of itself sufficient to establish

18   that the right was violated.”       Id.   The IJ viewed “the

19   purpose of [the] hearing” as “provid[ing] [Sicajau] with the

20   opportunity to testify.   He has the burden to establish that

21   there was a violation under the Constitution.”        Id. at 130.

22         During the hearing, Sicajau admitted that he “didn’t

23   see how [the officers] came in” when they returned, because

24   he was in his bedroom, but he “heard the steps . . . how

25   they were knocking and trying to get in.”        Id. at 151.

26   Sicajau was able to testify to the fact that after Cojon


                                     6
 1   left the house, one of Sicajau’s friends “closed the door

 2   . . . he locked it and closed it with some force.”       Id. at

 3   139.    During cross-examination, the attorney representing

 4   the Government inquired about the distinction between

 5   Sicajau’s affidavit, in which he stated that his sister-in-

 6   law closed the door behind the officers, and his testimony,

 7   during which he said that a friend had shut the door.       Id.

 8   at 154.    Sicajau confirmed that he “saw [his] sister-in-law

 9   close the door, [he had] always said [his] sister-in-law and

10   not [his] friends,” but that his brother’s subsequent

11   deportation and the resulting estrangement between his

12   brother and sister-in-law had left him concerned she would

13   not testify on his behalf.    Id. at 155, 159-61.

14          Following Sicajau’s testimony, his attorney called

15   another resident of the house, Jose Anibal Ochoa (“Ochoa”),

16   to testify.    Ochoa corroborated Sicajau’s statements

17   regarding what time officers arrived at the house.       At the

18   time of the raid, Ochoa lived on the second floor of the

19   residence.    He described the layout of the duplex and

20   explained that each floor has its own entrance.     Although

21   his testimony was not a model of clarity, the IJ and the

22   parties agreed that Ochoa said that the home has an exterior


                                    7
 1   door that led to two doors, one opening onto the first floor

 2   and one at the top of a set of interior stairs opening onto

 3   the second floor.   Ochoa testified that the officers forced

 4   open the exterior door to gain access to the house.        Ochoa

 5   based this belief on the “banging” he heard and the fact

 6   that “no one opened the door for them.”      Id. at 190.    Ochoa

 7   did not see the officers enter the home.

 8        The Government produced no witnesses.     Instead, the

 9   Government rested on an affidavit submitted by Darren

10   Williams (“Williams”), a Supervisory Detention and

11   Deportation Officer with the ICE New York City Fugitive

12   Operations Team.    Williams did not participate in the raid

13   on Sicajau’s home; his affidavit offered nothing as to the

14   acts of officers who did.     Instead, he explained the purpose

15   of two Department of Homeland Security (“DHS”) programs:

16   Operation Return to Sender (“apprehending immigration

17   absconders at large”) and Operation Cross Check (finding and

18   securing “aliens illegally in the United States, fugitive

19   aliens, aliens with criminal records, or aliens posing a

20   threat to the community”).3    Id. at 229.   Williams confirmed

          3
            Sicajau was arrested during a raid performed as part of
     Operation Cross Check. The Petitioners in the companion case we
     decide today were seized as part of Operation Return to Sender.
     See Jose Pretzantzin, et al. v. Holder, No. 11-2867-ag, – F.3d –,

                                     8
 1   that operations were routinely scheduled to begin in the

 2   early morning – but never before 5:30 a.m. – and that

 3   officers were “explicitly trained that voluntary consent

 4   must be obtained from the occupant of the residence prior to

 5   making entry.”      Id. at 230-31.   Williams stated that

 6   officers could question and, if warranted, detain non-target

 7   individuals who were encountered during an operation.

 8        The IJ denied Sicajau’s motion to suppress in an oral

 9   decision.     The IJ recognized that this Court considers

10   exclusion to be appropriate if an “an egregious violation

11   occurred that was fundamentally unfair or [if] the

12   violation, regardless of its egregiousness or fairness,

13   undermined the reliability of the evidence in dispute.”      Id.

14   at 109 (citing Almeida-Amaral v. Gonzalez, 461 F.3d 231 (2d

15   Cir. 2006)).     The IJ accurately described the testimony

16   given by Sicajau and Ochoa.      However, the IJ concluded that

17   although the ICE officers’ conduct was “not courteous, and

18   was imperfect, and was disrespectful,” id. at 211, Sicajau

19   had not shown that it constituted an egregious Fourth

20   Amendment violation that mandated suppression of alienage

21   evidence obtained during the raid and at 26 Federal Plaza,

22   id. at 110.


     – (2d Cir. 2013).

                                      9
 1        The IJ determined that Sicajau had failed to “offer

 2   sufficient facts to establish that the residence was

 3   searched without valid consent,” because “[n]either

 4   [Sicajau] nor [Ochoa] observed any official enter the

 5   dwelling.”   Id. at 108.   The IJ further noted that Sicajau’s

 6   testimony at the hearing varied somewhat from the statements

 7   in his affidavit, but the IJ did not appear to give much

 8   weight to the discrepancy regarding whether it was Sicajau’s

 9   sister-in-law or his friend who closed the door behind Jose

10   Cojon.4   The IJ did not make an explicit finding as to

11   whether he found Sicajau or Ochoa to be credible.

12   Regardless, the IJ determined that even if ICE officers had

13   entered Sicajau’s home without a warrant and without

          4
            The IJ seemed more concerned with Sicajau’s description of
     when and how the door to the home was initially opened and
     closed. In Sicajau’s affidavit, he stated that he opened his
     bedroom door to see what was happening; he observed Cojon leave
     the home. “After this [his] sister in law closed and locked the
     front door.” Joint App’x 252. During the hearing, Sicajau
     testified that he left his bedroom for a moment and, through a
     window, observed Cojon leaving the house. The attorney
     representing the Government asked Sicajau whether, when he was
     out of his room, he saw any doors standing open. Id. at 154.
     Sicajau responded that the doors were closed. Id. The
     Government’s attorney then asked Sicajau how he knew that his
     sister-in-law had closed the door if he never saw it open. Id.
     at 155. Sicajau clarified that he had seen the door open before
     his sister-in-law closed it. Id. Although the IJ apparently
     viewed Sicajau’s statements as containing a “marked contrast,”
     id. at 108, whether Sicajau actually observed the exterior door
     standing open before his sister-in-law closed it or whether he
     merely presumed it had been open because he had just seen Cojon
     depart is not crucial given that Sicajau maintained that the
     doors were closed after Cojon left the house.

                                    10
 1   consent, that fact alone did not yield an egregious Fourth

 2   Amendment violation.   Because Sicajau was not subjected to

 3   physical brutality and was not threatened in a way that

 4   “would give him the impression that if he did not comply or

 5   obey [the officers’] requests, that he would be in some way

 6   severely mistreated, mishandled or punished,” the IJ

 7   reasoned that the ICE officers’ conduct was not sufficiently

 8   egregious to warrant application of the exclusionary rule in

 9   a civil removal hearing.   Id. at 110-11.   As a result, the

10   IJ refused to suppress any of the evidence or statements

11   obtained by the Government.   In July 2009, the IJ ordered

12   Sicajau removed from the United States.

13         The Board of Immigration Appeals (the “BIA”) affirmed.

14   In re Sicajau Cotzojay, No. A097 535 383 (B.I.A. Oct. 31,

15   2011).   The BIA determined that the IJ was not required to

16   suppress the Government’s evidence of Sicajau’s alienage

17   because “the ‘egregiousness’ standard ha[d] not been met.”

18   Id.   The BIA reasoned that “[t]he facts as alleged by

19   [Sicajau] [we]re insufficient to show that the immigration

20   officers entered his living space without consent”; the BIA

21   emphasized Sicajau’s failure to produce a witness who saw

22   the officers enter the building.   Id.    The BIA approved of

23   the IJ’s “observations that [Sicajau] did not show that he
                                   11
 1   was physically mishandled or threatened with harm,” and it

 2   found that any Fourth Amendment violation was insufficiently

 3   severe to require application of the exclusionary rule.       Id.

 4   The BIA also rejected Sicajau’s arguments regarding alleged

 5   violations of his Fifth Amendment rights and of DHS

 6   regulations.   Id.

 7       Petitioner timely petitioned for review of the BIA’s

 8   decision.

 9

10                             Discussion5

11       The IJ provided two bases for his decision that the

12   evidence at issue was not suppressible: first, Petitioner

13   failed to establish a lack of consent; and second, even if

14   the raid was non-consensual, Petitioner failed to establish

15   an egregious violation of his Fourth Amendment rights.     The

16   BIA affirmed both of the IJ’s decisions.    For the reasons

17   discussed below, the Court concludes that the IJ erred on



         5
            The standard of review is neither contested nor
     determinative. “When the BIA does not expressly ‘adopt’ the IJ’s
     decision, but ‘its brief opinion closely tracks the IJ’s
     reasoning,’ this Court may consider both the IJ’s and the BIA’s
     opinions ‘for the sake of completeness.’” Zaman v. Mukasey, 514
     F.3d 233, 237 (2d Cir. 2008) (quoting Wangchuck v. DHS, 448 F.3d
     524, 528 (2d Cir. 2006)). We review the agency’s factual
     findings for substantial evidence, id., and questions of law de
     novo, Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).

                                   12
 1   both levels.   It was error to find that Sicajau’s

 2   submissions were insufficient to shift the burden to the

 3   Government to establish consent.     It was also error to

 4   conclude that the facts alleged, even accepted as true, were

 5   insufficient to yield an egregious Fourth Amendment

 6   violation requiring suppression.

 7   Burden of Proof

 8       The IJ first found that the evidence was not subject to

 9   exclusion because Sicajau failed to establish that the

10   residence was searched without valid consent.     This was

11   error; Sicajau adequately established a prima facie case for

12   suppression, at which point it became the Government’s

13   burden to establish that its agents secured consent prior to

14   conducting the search.    Pursuant to BIA precedent, a

15   petitioner raising a question about the admissibility of

16   evidence “must come forward with proof establishing a prima

17   facie case before the [Government] will be called on to

18   assume the burden of justifying the manner in which it

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

20   Dec. 609, 611 (B.I.A. 1988) (quoting Matter of Burgos, 15 I.

21   & N. Dec. 278, 279 (B.I.A. 1975)).    Under this burden-

22   shifting framework, if the petitioner offers an affidavit

23   that “could support a basis for excluding the evidence in

                                    13
 1   question,” it must then be supported by testimony.      Id.     If

 2   the petitioner establishes a prima facie case, the burden of

 3   proof shifts to the Government to show why the evidence in

 4   question should be admitted.

 5       The BIA developed this burden-shifting framework in

 6   Matter of Tang, 13 I. & N. Dec. 691, 692 (B.I.A. 1971), a

 7   case in which the respondent challenged the Government’s use

 8   of documents that his attorney claimed had been taken in

 9   violation of his constitutional rights.      Tang’s attorney did

10   not provide any specifications regarding this assertion; he

11   argued that “since he raised a question as to the legality

12   of the evidence, the burden is upon the [Government] to come

13   forward with proof establishing that the documents” were

14   legally obtained.   Id.   The BIA disagreed, finding that

15   “[o]ne who raises the claim must come forward with proof

16   establishing a prima facie case before the [Government] will

17   be called upon to assume the burden of justifying the manner

18   in which it obtained its evidence.”    Id.

19       The BIA explained that the “reason for [its] rule” was

20   that an “‘attorney demanding suppression merely upon his own

21   say-so often discovers only at the hearing that he has been

22   misled by unsworn representations of his clients,’”

23   resulting in protracted and unnecessary proceedings.      Id.

                                    14
 1   (quoting United States v. Garcia, 272 F. Supp. 286, 290

 2   (S.D.N.Y. 1967)).    Thus, a “respondent’s offer of proof” in

 3   support of a motion for suppression that is merely “a mixed

 4   legal and factual declaration by counsel, not based on

 5   counsel’s personal knowledge and never corroborated

 6   personally by the respondent” does not constitute a prima

 7   facie showing.     Matter of Ramirez-Sanchez, 17 I. & N. Dec.

 8   503, 505-06 (B.I.A. 1980).    But the requisite “personal

 9   knowledge” refers to information possessed by the respondent

10   who was subject to the alleged constitutional violation; it

11   cannot extend to information the respondent does not have.

12       Here, the IJ erred by failing to shift the burden to

13   show consent from Sicajau to the Government once Sicajau

14   offered an affidavit and supporting testimony based on

15   personal knowledge sufficient to make out a prima facie case

16   for suppression.    Sicajau presented facts that, “if true,

17   could support a basis for excluding the evidence in

18   question.”   Barcenas, 19 I. & N. Dec. at 611.    Although

19   neither Sicajau nor Ochoa personally observed ICE officers

20   enter their home, each man testified to the full extent

21   permitted by his “personal knowledge.”    Despite this, the IJ

22   found that Sicajau “d[id] not offer sufficient facts to

23   establish that the residence was searched without valid

                                     15
 1   consent,” because neither he nor his witness had “observed

 2   any official enter the dwelling.”     Joint App’x 108.    The BIA

 3   affirmed this conclusion, finding that “[t]he facts as

 4   alleged by [Sicajau] are insufficient to show that

 5   immigration officers entered his living space without

 6   consent.”   In re Sicajau Cotzojay, No. A097 535 383 (B.I.A.

 7   Oct. 31, 2011).

 8       This was error.   Sicajau presented facts that, taken as

 9   true, showed that ICE officers entered his home without

10   consent and in violation of the Fourth Amendment.        See

11   Almeida-Amaral v. Gonzalez, 461 F.3d 231, 237 (2d Cir. 2006)

12   (noting that we must “tak[e] the evidence most favorably to

13   petitioner” at this stage).    At this point, the burden to

14   establish that the officers obtained voluntary consent

15   before invading Sicajau’s home and bedroom should have

16   shifted to the Government.    However, the IJ believed that

17   even if Sicajau had made a prima facie case for an ordinary

18   Fourth Amendment violation (by establishing a non-consensual

19   entry), he had not made a prima facie showing for

20   suppression because the facts alleged could not yield a

21   violation “so shocking to the conscience that it would rise

22   to the level of egregiousness.”     Joint App’x 110.

23

                                    16
 1   “Egregious” Fourth Amendment Violations

 2        The IJ also found, and the BIA affirmed, that the

 3   evidence was not subject to exclusion because Sicajau could

 4   not show an egregious Fourth Amendment violation requiring

 5   suppression.   Specifically, the IJ found that even if

 6   Sicajau had demonstrated an ordinary Fourth Amendment

 7   violation, because he did not claim that ICE officers

 8   physically threatened or harmed him in the course of the

 9   nighttime, warrantless raid, it did not amount to an

10   egregious violation.     The IJ’s determination, and the BIA’s

11   affirmation, rested on an erroneous view of what government

12   conduct is required before a Fourth Amendment violation may

13   be classified as egregious.

14        In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the

15   Supreme Court balanced the “likely social benefits of

16   excluding unlawfully seized evidence against the likely

17   costs,” id. at 1041, and determined that a Fourth Amendment

18   violation, standing alone, does not justify applying the

19   exclusionary rule in civil deportation hearings, id. at

20   1041-50.   However, a plurality of the Court included two

21   caveats to this rule.6    First, Justice O’Connor, who

          6
            Cf. Oliva-Ramos v. Att. Gen. of U.S., 694 F.3d 259, 271
     (3d Cir. 2012) (“[T]hough technically correct to characterize the

                                     17
 1   authored the majority opinion, recognized that the need for

 2   the exclusionary rule’s use “might change, if there

 3   developed good reason to believe that Fourth Amendment

 4   violations by [immigration] officers were widespread.”       Id.

 5   at 1050.   Second, Justice O’Connor limited the majority

 6   holding by exempting from it any “egregious violations of

 7   Fourth Amendment or other liberties that might transgress

 8   notions of fundamental fairness and undermine the probative

 9   value of the evidence obtained.”     Id. at 1050-51.    Sicajau

10   focuses his attack here on the second limitation: egregious

11   Fourth Amendment violations.7

12        We interpreted this aspect of Lopez-Mendoza as

13   authorizing the exclusion of evidence obtained in violation

14   of the Fourth Amendment “if record evidence established

15   either (a) that an egregious violation that was

16   fundamentally unfair had occurred, or (b) that the violation


     portion of the majority opinion recognizing a potential exception
     to the Court’s holding as a ‘plurality opinion,’ eight Justices
     agreed that the exclusionary rule should apply in
     deportation/removal proceedings involving egregious or widespread
     Fourth Amendment violations.”).
          7
           We note that recently ICE settled a class action arising
     out of warrantless invasions of (alleged) alien residences in
     conjunction with Operation Return to Sender. Mark Hamblett,
     Settlement Includes Guidelines for ICE Raids, N.Y. LAW JOURNAL,
     Apr. 8, 2013 (discussing settlement reached in Aguilar v.
     Immigration and Customs Enforcement, No. 07 Civ. 8224, before
     Southern District of New York Judge Katherine Forrest).

                                     18
 1   – regardless of its egregiousness or unfairness – undermined

 2   the reliability of the evidence in dispute.”8

 3   Almeida-Amaral, 461 F.3d at 235.    In Almeida-Amaral, the

 4   seventeen-year-old petitioner was approached late at night

 5   by a border patrol agent in the parking lot of a gas station

 6   near the Mexican border.   Id. at 232.     The agent requested

 7   identification; when the petitioner produced his Brazilian

 8   passport, the agent arrested him.    Id.

 9       This Court had no “doubts about the veracity of the

10   evidence obtained as a result of the seizure,” but

11   questioned whether “the agent’s stop of Almeida-Amaral

12   transgressed notions of fundamental fairness.”      Id. at 235

13   (internal quotation marks and alteration omitted).     Without

14   providing an exhaustive set of factors, we identified “two

15   principles that . . . bear on whether petitioner suffered an

16   egregious violation of his constitutional rights.”      Id. at

17   235 & 235 n.1.   First, the “characteristics and severity of

         8
            Almeida-Amaral explained that “Lopez-Mendoza authorizes
     exclusion for violations that are egregious either because the
     violation ‘transgress[ed] notions of fundamental fairness,’ or
     because the violation ‘undermine[d] the probative value of the
     evidence obtained.’” 461 F.3d at 234 (quoting Lopez-Mendoza, 468
     U.S. at 1050-51) (emphasis in original). This Court viewed
     Lopez-Mendoza’s use of the conjunctive “and” instead of the
     disjunctive “or” as apparently “inadvertent[]”; it was “plainly
     not what the Court intended” to require evidence of fundamental
     unfairness and diminished probative value to justify exclusion.
     See id. at 234-35.

                                   19
 1   the offending conduct,” in addition to the validity of the

 2   seizure itself, should be considered.         Id. at 235.   Second,

 3   we determined that “even where the seizure is not especially

 4   severe, it may nevertheless qualify as an egregious

 5   violation if the stop was based on race (or some other

 6   grossly improper consideration).”       Id.    Applying these

 7   principles, we found that the agent’s suspicionless stop was

 8   an infringement but was not egregious because the stop was

 9   neither severe nor apparently motivated by impermissible

10   considerations.   Id. at 237.

11       What causes a Fourth Amendment violation to qualify as

12   “egregious” based on severity?       This Court has never found a

13   violation sufficiently severe, and therefore egregious, to

14   require suppression in a removal hearing.9        E.g., id.;

15   Melnitsenko v. Mukasey, 517 F.3d 42, 47-48 (2d Cir. 2008)

16   (three-hour stop at a border check point was not

17   sufficiently severe to be egregious); Pinto-Montoya v.

18   Mukasey, 540 F.3d 126, 131-32 (2d Cir. 2008) (per curiam)



         9
            We have suppressed evidence on the basis of its
     unreliability. In Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009),
     immigration agents questioned the petitioner over several hours
     throughout the night, not about his own immigration status, a
     relatively clear-cut inquiry, but about “more nuanced” issues
     that were “susceptible to corruption during the course of an
     improper interview.” Id. at 214-16.

                                     20
 1   (finding that petitioners were not “seized” for Fourth

 2   Amendment purposes when they answered officials’ questions

 3   at an airport).    Other courts have identified egregious

 4   violations under arguably less severe circumstances.     See,

 5   e.g., Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018-19

 6   (9th Cir. 2008).    As the Third Circuit has noted, “there is

 7   no one-size-fits-all approach to determining whether a

 8   Fourth Amendment violation is egregious.”     Oliva-Ramos v.

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

10       In this case, the absence of physical threat or harm to

11   Sicajau was a key factor in the IJ and BIA decisions finding

12   the exclusionary rule inapplicable.     Determining whether an

13   egregious violation must include the threat or realization

14   of physical violence requires a review of the Supreme

15   Court’s Fourth Amendment jurisprudence generally, and the

16   Court’s reference to “egregious” violations in Lopez-Mendoza

17   specifically.

18       First, it is uncontroversial that the Fourth Amendment

19   applies to aliens and citizens alike.     See, e.g., Lopez-

20   Mendoza, 468 U.S. at 1046 (observing that it is “[i]mportant

21   . . . to protect the Fourth Amendment rights of all

22   persons,” despite finding that application of the

23   exclusionary rule is not necessary in every context).

                                    21
 1   Second, “in the absence of consent or exigent circumstances

 2   . . . [the Court has] consistently held that the entry into

 3   a home to conduct a search or make an arrest is unreasonable

 4   under the Fourth Amendment unless done pursuant to a

 5   warrant.”     Steagald v. United States, 451 U.S. 204, 211

 6   (1981).     The Fourth Amendment’s protections apply to

 7   individuals like Sicajau, and these protections should be at

 8   their zenith in the home.     “At the very core of the Fourth

 9   Amendment stands the right of a man to retreat into his own

10   home and there be free from unreasonable governmental

11   intrusion.”     Payton v. N.Y., 445 U.S. 573, 589-90 (1980)

12   (internal quotation marks and alterations omitted)).

13       But the applicability of the Fourth Amendment does not

14   compel the availability of the exclusionary rule in civil

15   deportation proceedings.     Lopez-Mendoza, 468 U.S. at 1050.

16   In support of the plurality’s exception for egregious Fourth

17   Amendment violations, Justice O’Connor looked to Rochin v.

18   California, 342 U.S. 165 (1952), and to two BIA cases in

19   which “fundamentally unfair” evidence was suppressed.

20   Lopez-Mendoza, 468 U.S. at 1050-51 & 1051 n.5.     In Rochin, a

21   criminal case, when police officers entered the defendant’s

22   bedroom he promptly swallowed two unidentified capsules.

23   342 U.S. at 166.     In order to recover the capsules, the

                                     22
 1   officers handcuffed Rochin and took him to the hospital,

 2   where his stomach was forcibly pumped to induce vomiting.

 3   Id.   At Rochin’s trial for possessing a preparation of

 4   morphine, the recovered capsules were the chief evidence

 5   against him.   Id.   After the California Supreme Court

 6   declined to review Rochin’s conviction, the Supreme Court

 7   granted certiorari and reversed because the officers’

 8   conduct “shock[ed] the conscience.”        Id. at 209.

 9         We do not read the Supreme Court’s citation to Rochin

10   as an indication that the Court requires equally flagrant

11   violations before it is willing to label them “egregious.”

12   As the Third Circuit recently pointed out, the Supreme

13   Court’s decision in Rochin preceded its incorporation of the

14   Fourth Amendment against the states via the Fourteenth

15   Amendment in Mapp v. Ohio, 367 U.S. 643, 655-57 (1961).

16   Oliva-Ramos, 694 F.3d at 276.        “‘Consequently, the Court has

17   not relied on the Rochin shocks the conscience standard but

18   has instead applied a Fourth Amendment reasonableness

19   analysis in cases that, like Rochin, involved highly

20   intrusive searches or seizures.’”        Id. (quoting Lester v.

21   City of Chicago, 830 F.2d 706, 711 (7th Cir. 1987)

22   (additional internal quotation marks omitted)); see also



                                     23
 1   Maryland v. King, 133 S.Ct. 1958, 1969 (2013).   Still, if a

 2   Fourth Amendment violation is measured by what is

 3   reasonable, then an egregious violation must surely be

 4   something more than unreasonable.   See Oliva-Ramos, 694 F.3d

 5   at 276.

 6       Justice O’Connor does not directly address what

 7   distinguishes an unreasonable violation from one that is

 8   egregious, but cites to two cases in which the BIA concluded

 9   that the constitutional violation at issue was egregious.

10   One of these cases is directly on point, as it allowed

11   “suppression of evidence obtained as a result of a night-

12   time warrantless entry into the aliens’ residence.”    Lopez-

13   Mendoza, 468 U.S. at 1051 n.5 (citing Matter of Ramira-

14   Cordova, No. A21 095 659 (Feb. 21, 1980)).   She also cites

15   to Matter of Garcia, 17 I. & N. Dec. 319, 321 (BIA 1980), in

16   which the BIA invoked the “requirements of due process” to

17   suppress the respondent’s involuntary admission of alienage

18   after his repeated requests for counsel were denied.     Lopez-

19   Mendoza, 468 U.S. at 1051 n.5.

20       Although both Garcia and Ramira-Cordova, like Rochin,

21   involved some degree of physical threat or forcible contact,

22   we are unconvinced that the Supreme Court’s citation to

23   these cases means that physical coercion is a necessary

                                  24
 1   component of an egregious Fourth Amendment violation.

 2   Ultimately, the plurality’s exemption of egregious

 3   violations rests on the view that evidence obtained in a

 4   “fundamentally unfair” manner should be excluded for due

 5   process reasons.     Lopez-Mendoza, 468 U.S. at 1051 n.5.     We

 6   see no good reason to require that Fourth Amendment

 7   violations must involve some sort of physical threat or

 8   trespass before they “transgress notions of fundamental

 9   fairness.”     Id. at 1050-51 (noting that the evidence at

10   issue was “gathered in connection with peaceful arrests”).

11   Breaking into someone’s home at 4:00 a.m. without a warrant

12   or any legitimate basis need not also include physical

13   injury or the threat thereof for such conduct to qualify as

14   egregious.

15       In Almeida-Amaral, this Court explained that both the

16   “characteristics and severity of the offending conduct,” in

17   addition to its validity or invalidity, are relevant.        461

18   F.3d at 235.     This inquiry is intended to be broad.   As the

19   Third Circuit has recognized, “a flexible case-by-case

20   approach” is warranted, under which the threat or use of

21   physical force is one relevant, but not dispositive,

22   consideration.     Oliva-Ramos, 694 F.3d at 278-79.   In Oliva-

23   Ramos, the court vacated and remanded the BIA’s decision

                                     25
 1   refusing to suppress evidence obtained via a pre-dawn,

 2   warrantless raid conducted as part of Operation Return to

 3   Sender.   Id. at 279, 281 n.27.     The Third Circuit developed

 4   a non-exhaustive list of factors to guide the BIA in its

 5   assessment of the egregiousness of the Fourth Amendment

 6   violation, including: whether the violation was intentional;

 7   whether the seizure was “gross or unreasonable” and without

 8   plausible legal ground; whether the invasion involved

 9   “threats, coercion[, ] physical abuse” or “unreasonable

10   shows of force”; and whether the seizure or arrest was based

11   on race or ethnicity.   Id. at 279.

12        We agree with the Third Circuit that each of these

13   factors, among others, may be useful for determining whether

14   a Fourth Amendment violation is sufficiently egregious to

15   require application of the exclusionary rule.      No single

16   aspect of a constitutional violation elevates its status

17   from merely unreasonable to egregious.10     Thus, although an

          10
            The Ninth Circuit’s view that “[a] Fourth Amendment
     violation is ‘egregious’ if ‘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’” goes too far. Lopez-Rodriguez v. Mukasey, 536
     F.3d 1012, 1018 (9th Cir. 2008) (quoting Gonzalez-Rivera v. INS,
     22 F.3d 1441, 1449 (9th Cir. 1994) (emphasis omitted)). This
     qualified immunity-type inquiry yields an exception that is
     “frankly, rather broad,” id. at 1019 (Bybee, J., concurring),
     and places too much emphasis on the good or bad faith of
     government agents.

                                    26
 1   unlawful search does not “become[] an egregious search

 2   merely because it invades the privacy of the home,” Martinez

 3   Carcamo v. Holder, 713 F.3d 916, 923 (8th Cir. 2013), that

 4   government agents intrude into one’s home (versus a

 5   workplace or vehicle, for example) is an important factor in

 6   assessing the egregiousness of a Fourth Amendment violation

 7   because the home is where its protections should be at their

 8   peak.   As in this case, the deliberate, nighttime,

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

10   and in the absence of exigent circumstances, may constitute

11   an egregious Fourth Amendment violation regardless of

12   whether government agents physically threaten or harm

13   residents.

14       We are persuaded that the facts as alleged by Sicajau

15   portray an egregious Fourth Amendment violation requiring

16   application of the exclusionary rule.   We reject the IJ’s

17   determination that Sicajau’s failure to personally observe

18   the officers’ entry of the home rendered him incapable of

19   establishing a prima facie case for suppression.      As

20   discussed, Sicajau’s affidavit and supporting testimony

21   describing the circumstances of the raid were sufficient to

22   carry this burden.   Thus, assuming that ICE officers did not

23   secure voluntary consent to enter the home – thereby

24   effecting the basic Fourth Amendment violation that must

                                   27
 1   underlie any egregious violation – certain aspects of the

 2   raid as alleged by Sicajau transform the constitutional

 3   transgression depicted here into an egregious Fourth

 4   Amendment violation.

 5        Initially, we note that ICE officers purposely arrived

 6   at Sicajau’s home in the pre-dawn hours, presumably for the

 7   purpose of startling the sleeping residents, and, perhaps,

 8   with the aim of coercing confused consent.11    In addition,

 9   although the officers apparently secured their target,

10   Cojon, they returned to the home without a warrant and

11   without reasonable suspicion that additional illegal aliens

12   remained behind the home’s locked doors.     The Government

13   failed to offer any evidence showing that its officers

14   obtained voluntary consent to enter the home; the only

15   record of the raid that we have comes from Sicajau and

16   Ochoa.    In the absence of evidence to the contrary, their

17   statements support finding that ICE officers entered the

18

19

20

          11
            According to Supervisory Detention and Deportation Officer
     Williams, ICE officers aim to arrive at residences between 5:30
     a.m. and 6:00 a.m. “to ensure that target aliens would be
     present.” Joint App’x 231. But the record in this case (and in
     the companion case argued in tandem with the case at bar) belies
     Williams’ assertion that ICE officers never conduct raids
     starting before 5:30 a.m.

                                    28
 1   home without consent in egregious violation of the Fourth

 2   Amendment.12

 3        We conclude that the best course is to remand for

 4   further proceedings to give the Government a meaningful

 5   opportunity to show that its officers obtained consent to

 6   enter Sicajau’s home.   We note that although Government

 7   proof of voluntary consent to enter Sicajau’s home and

 8   bedroom would negate his Fourth Amendment claim, he has

 9   raised separate arguments regarding the admissibility of the

10   evidence under the Fifth Amendment and DHS regulations.      In

11   light of our decision to remand, we decline to reach those

12   arguments here.   Finally, if, on remand, Sicajau’s motion to

13   suppress evidence of alienage is granted, we direct the IJ

14   and the BIA to our opinion issued in a companion case also

15   decided today for guidance with respect to what types of

16   “identity” evidence are subject to exclusion.     See Jose

17



          12
            We believe that ICE officers’ conduct throughout the raid
     lends support to our conclusion that the Fourth Amendment
     violation depicted here was egregious – the officers’ actions
     were more than merely “disrespectful” with regard to the
     residents’ constitutional rights. Specifically, ICE officers
     pounded on Sicajau’s bedroom door, corralled Sicajau and other
     handcuffed residents in the living room, searched Sicajau’s room
     for desirable identification documents, informed arrestees that
     they could relieve themselves in a restaurant parking lot while
     officers ate breakfast, and, in total, detained Sicajau for
     approximately eighteen hours.


                                    29
1   Pretzantzin, et al. v. Holder, No. 11-2867-ag, – F.3d –, –

2   (2d Cir. 2013).

3

4                            Conclusion

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

6   Immigration Appeals is hereby VACATED and REMANDED.   On

7   remand, the Government bears the burden of proof to show

8   that ICE officers obtained voluntary consent to enter the

9   home and Sicajau’s bedroom.




                                  30
