ALIENAGE, REMOVABILITY, AND

SUPPRESSION

BRIDGET KESSLER*MOLLY LAUTERBACK*

JANUARY 9, 2020*(MATERIALS PREPARED WITH THE ASSISTANCE OF ANDREA SAENZ)

AGENDA

1) Burdens and Basics

2) Analyzing the Notice to Appear

3) Challenging Service and the Charges

4) ICE Evidence and I-213 Issues

5) Suppression Case Law and Strategy

BURDENS OF PROOF

1. Person charged under 212(a)(6)(A)(i) - EWI DHS: must prove alienage by CACE

R: then must prove prior admission by CACE or “clearly and beyond a doubt” admissible

Prior admission: Quilantan, 25 I&N Dec. 285 (BIA 2010)

Clearly and beyond a doubt: INA § 240(c)(2)(A)

BURDENS OF PROOF

2. Person charged under 212(a)(7)(A)(i) – arriving aliens R: “clearly and beyond a doubt” entitled to be

admitted

If returning LPR and “colorable” claim to returning LPR status, DHS must prove by CACE that person’s LPR status should be revoked. Matter of Huang, 19 I&N Dec. 749 (BIA 1988)

BURDENS OF PROOF

3. Person charged under 237 – has prior admission DHS: Must prove removability by CACE (includes

alienage)

See Woodby v. INS, 385 U.S. 276 (1966)

“No decision on deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.” INA § 240(c)(3)(A)

RIGHT TO DOCUMENTS

INA § 240(c)(2)(B):

“(2) Burden on alien (B) by clear and convincing evidence, that the alien is

lawfully present in the United States pursuant to a prior admission.

In meeting the burden of proof under subparagraph (B), the alien shall have access to the alien's visa or other entry document, if any, and any other records and documents, not considered by the Attorney General to be confidential, pertaining to the alien's admission or presence in the United States.

THE NOTICE TO APPEAR

1. “Do you concede proper service?”

Service requirements: 8 CFR § 103.8

2. As to the factual allegations, how do you plead?

“admit” or “deny”

3. As to the charge(s), how do you plead?

“concede” or “deny”

4. Do you designate a country should removal be necessary?

“respectfully decline.”

NTA REQUIREMENTSStatutory Requirements

INA § 239(a)(1)(A)-(G)

“In removal proceedings under section 1229a of this title, written notice . . . shall be given in person to the alien . . . specifying the following . . .”

Nature of the proceedings

Legal authority for the proceedings

Alleged illegal conduct

Charges

Right to representation and list of pro bono counsel

Address requirement

Consequences of failing to appear

Time and place of proceedings

Regulatory Requirements

8 CFR § 1003.14(a) “Jurisdiction vests, and proceedings before

an Immigration Judge commence, when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate showing service on the opposing party pursuant to § 1003.32 which indicates the Immigration Court in which the charging document is filed.”

8 CFR § 1003.15(b) Nature of the proceedings

Legal authority for the proceedings

Alleged illegal conduct

Charges

Right to representation and list of pro bono counsel

Address requirement

Consequences of failing to appear

No time and place requirement!

PEREIRA!!

Pereira v. Sessions, 138 S.Ct. 2105 (Jun. 21, 2018) “A putative notice to appear that fails to

designate the specific time or place of the noncitizen's removal proceedings is not a “notice to appear under § 1229(a),” and so does not trigger the stop-time rule.”

TERMINATION STATION!

Judge Bain, 26 Fed Judge O’Sullivan, Boston

IS PEREIRA DEAD?

Matter of BERMUDEZ-COTA, 27 I&N Dec. 441 (BIA 2018):

“A notice to appear that does not specify the time and place of an alien’s initial removal hearing vests an Immigration Judge with jurisdiction over the removal proceedings and meets the requirements of section 239(a) of the Immigration and Nationality Act, 8 U.S.C. § 1229(a) (2012), so long as a notice of hearing specifying this information is later sent to the alien. Pereira v. Sessions, 138 S. Ct. 2105 (2018), distinguished.”

Banegas Gomez v. Barr, No. 15‐3269 (2d Cir. Apr. 23, 2019):

“And lastly, we see no basis for reading Pereira—which dealt only with the “stop time” rule, see 138 S. Ct. at 2110, which is not relevant to this case—to divest an Immigration Court of jurisdiction whenever an NTA lacks information regarding a hearing’s time and date. We thus join several of our sister circuits in allowing proceedings such as these to proceed.”

BUT STAY TUNED …

Giuseppe Giudice v. Attorney General United States, No. 19-1869 (3d Cir.)

ALSO, REMEMBER THE REGS?

Karingithi v. Whitaker, 913 F.3d 1158, 1160 (9th Cir. 2019) The regulatory definition, not

the one set forth in § 1229(a), governs the Immigration Court’s jurisdiction. A notice to appear need not include time and date information to satisfy this standard. Karingithi’s notice to appear met the regulatory requirements and therefore vested jurisdiction in the IJ.

ADMITTING AND AMENDING PLEADINGS

If 212(a)(6)(A)(i)? Amend to include approx. year of entry. 42B - 10 year residency requirement

If not competent, think about denying pleadings as a safeguard / termination.

“Neither admit or deny” or “I’m asking the Judge to make a finding” It’s DHS’s burden, after all!

WITHDRAWING PLEADINGS

8 CFR § 1003.23(b)(1) “An Immigration Judge may upon his or her own motion at any time,

or upon motion of the Service or the alien, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals.”

Hoodho v. Holder, 558 F.3d 184, 192 (2d Cir. 2009) “Where, as here, an IJ accepts a concession of removability from

retained counsel and that concession is not contradicted by the record evidence, the circumstances are not “egregious” in any respect. To the contrary, the acceptance by an IJ of a plausible concession of removability is an unremarkable feature of removal proceedings.”

“That, in hindsight, it might have been preferable for an alien to have contested removability, rather than to have conceded it, does not constitute “egregious circumstances.””

CHALLENGING SERVICE

Is your client a minor, incarcerated, or potentially not competent? Service MUST be made on more than just the R and/or

the attorney.

See Matter of E-S-I-, 26 I&N Dec. 136 (BIA 2013); 8 CFR 103.8(c)

HOWEVER: DHS will get an adjournment to effectuate proper service. See Matter of W-A-F-C-, 26 I&N Dec. 880 (BIA 2016)

FUNKY NTAS, SAMPLE 1

FUNKY NTAS, SAMPLE 2

ALIENAGE ISSUESNg Fung Ho v. White, 259 U.S. 276, 284 (1922) (finding that “[j]urisdiction in the executive to order deportation exists only if the person arrested is an alien.”)

Presumption that gov’t meets its burden on alienage if birth abroad.

Rebuttable presumption that R can overcome by a preponderance of credible evidence

Matter of Tijerina-Villarreal, 13 I&N Dec. 327 (BIA 1969)

Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995) (only once the government has appropriately met its burden of proving alienage by clear, unequivocal, and convincing evidence will the burden shift to the respondent).

ALIENAGE ISSUES

Remember: alienage ≠ citizenship! Saying you’re denying

alienage doesn’t mean you have to prove your client is a citizen!!

But it does make it easier ☺

Ask for release! See Morton Memo (“After evaluating the claim, if the evidence of U.S. citizenship outweighs evidence to the contrary, the individual should not be taken into custody.”)

CAN ICE MAKE MY CLIENT TESTIFY?

Only after presenting something first. Matter of Tang, 13 I&N Dec 691, 692 (BIA 1971) (“Upon

presenting evidence that the respondent is an alien, the Service may call upon him to testify and may use his testimony to find that deportability is established.”) (emphasis added).

BUT…

CAN ICE MAKE MY CLIENT TESTIFY?

Remember what the government presents has to be reliable! Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir.

1996) (“The due process test for admissibility of evidence in a deportation proceeding is whether the evidence is probative and whether its use is fundamentally fair.”)

Matter of Lugo-Guadiana, 12 I. & N. Dec. 726, 730 (BIA 1968) (explaining that the government can only meet its burden of proving alienage through the use of credible documents); see also Garcia v. Holder, 472 F. App'x 467, 469 (9th Cir. 2012); Antia-Perea v. Holder, 768 F.3d 647, 657 (7th Cir. 2014).

TYPICAL ICE EVIDENCE OF ALIENAGE

Form I-213, Record of Deportable/ Inadmissible Alien

Visa face page or other visa record

Copy of passport or country-based ID card

References in RAP sheet or criminal documents

Demands to question client

Nothing

EXAMPLES OF UNRELIABLE EVIDENCE

“USAID card is a private labeled ID known as an alternative ID. It is not a government identification card and does not replace an official ID of any kind.” http://www.usaidsystems.com/en/usaid_e.aspx

RAP sheets unreliable because “they lack the necessary information to describe the full record of conviction and do not necessarily emanate from a neutral, reliable source.” Francis v. Gonzales, 442 F.3d 131, 143 (2d Cir. 2006)

I GOT THE I-213. NOW WHAT?

BIA says I-213’s are “presumptively reliable,” but:

Look for defects, errors, and inconsistencies

Discuss the narrative and any alleged statements w/ your client. Is that true? What’s missing?

Discuss your client’s entry/crim arrest/ICE arrest –what were the worst aspects?

Decide whether there is a basis to move to terminate or suppress this or other evidence

I-213 ISSUES, PART 1

I-213 ISSUES, PART 2

I-213 ISSUES, PART 3

MOVING TO SUPPRESS OR TERMINATE

You can move to terminate without a suppression motion ICE has no evidence of alienage or in support of

the charge of removability (or only late-filed evidence)

ICE evidence is unreliable and should be excluded or given no weight (but not suppressed)

A violation of law must be remedied by termination of the proceedings

CAN AN IJ TERMINATE PROCEEDINGS?

IJ can always terminate because the charges are not sustained.

Currently inconsistent precedent whether IJ can terminate for a serious due process or regulatory violation. YES: Matter of Garcia-Flores, 17 I&N Dec. 325, 327 (BIA

1980). Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008)

NO? Matter of S-O-G- & F-D-B-, 27 I&N Dec. 462 (A.G. 2018) (IJs have no inherent authority to terminate outside of explicit regulatory power; 8 C.F.R. 1240.1(a)(1)(iv) means nothing)

SUPPRESSION

You can also move to suppress ICE’s evidence, then move to terminate because if suppressed, they have no evidence Arrest was illegal

Manner of gathering evidence/admissions was illegal

Evidence gathered after arrest day is

“fruit of the poisonous tree” –

wouldn’t have been gathered

but-for the illegal arrest

ANALYZE YOUR ARREST

Each case is different: Home arrest (nighttime? early AM?)

Car stop

Courthouse arrest

Shelter arrest

Abusive border conditions

How many officers? Armed? Fear, coercion, threats?

Lies, ruses, impersonation?

Nature of seizure, physical contact, freedom to leave?

INS V. LOPEZ-MENDOZA, 468 U.S. 1032 (1984)

Supreme Court holds that the 4th Amendment, and thus suppression, does not apply in civil removal proceedings

BUT they do not reach: Evidence that INS rights violations are widespread

“Egregious violations of the 4th Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.”

SUPPRESSION IN THE SECOND CIRCUIT

Almeida-Amaral v. Holder, 461 F.3d 231 (2006)

Singh v. Holder, 553 F.3d 207 (2009)

Cotzojay v. Holder, 725 F.3d 172 (2013)

Pretzantzin v. Holder, 736 F.3d 641 (2013)

Zuniga-Perez v. Sessions,

897 F.3d 114 (2018)

Rodriguez v. Barr (2019)

This Photo by Unknown Author is licensed under CC BY-ND

SUPPRESSION IN THE SECOND CIRCUIT

Almeida-Amaral SCOTUS exception allowing suppression is for

egregious, fundamentally unfair violations OR non-egregious but probative value of evidence is undermined. Don’t need both. Egregiousness included validity of the stop, and

severity of the conduct/seizure AA’s highway stop (on foot) by CBP lacked

reasonable suspicion but was not sufficiently egregious (no ev. of racial profiling, long or severe seizure)

SUPPRESSION IN THE SECOND CIRCUIT

Singh S stopped re-entering at Canadian border after brief

trip to strip club with friend of unclear status

S signed statement on smuggling charge after 4-5 hour late-night custodial interrogation by CBP, threats, crying, 24 hours without sleep, no advisals

Statement should have been suppressed on reliability grounds (ct doesn’t reach egregious)

SUPPRESSION IN THE SECOND CIRCUIT

Cotzojay and Pretzantzin – twin cases from 2007 Long Island home raids Early morning warrantless ICE home entry without

consent can support suppression

Agency erred not shifting burden to DHS after C made a prima facie case

Physical force or “shocks the conscience” is NOT the correct standard – too narrow

Evidence gathered as a result of the illegal raid is not “independent” evidence unless DHS proves it obtained it only from their names (they didn’t)

SUPPRESSION IN THE SECOND CIRCUIT

Zuniga-Perez IJ erred in not holding ev. hearing, as Z-P made out

prima facie case of egregious const. violation.

Nighttime home raid while residents sleeping

I-213 said state troopers had felony search warrant to look for fugitive and also had info there were “known Hispanic migrants”

Troopers brought CBP agents for “translation assistance” who questioned and arrested Z-P after it was clear the fugitive was not there

DHS never provided the felony warrant

SUPPRESSION IN THE SECOND CIRCUIT

Rodriguez

The evidence, read in the light most favorable to the Petitioner,suggests that his arrest was racially motivated.

“One can reasonably infer from the agents’ preparation of an unreliable report at the time of the arrest, which would ultimately be used against Rodriguez, that the arrest was premised on an impermissible basis. And, given the other facts in this case, one can infer that this impermissible basis was race.”

LITIGATING SUPPRESSION

Deny all allegations and charges

Demand ICE produce evidence of alienage

When they do, ask for briefing schedule Written motion to suppress and terminate

Client declaration

Other supporting evidence (other witnesses, photos, medical records?)

Request for evidentiary hearing

THE SUPPRESSION HEARING

If our affidavit alleges a prima facie case for suppression, we get an evidentiary hearing to testify, and then the burden shifts to the government to justify its actions. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988).

Client must testify about arrest

Prep client very carefully to not admit alienage/take the 5th

AND prepare to object or file motion in limine

DHS almost never produces the officers, but hold them to their evidence, witness and briefing deadlines.

SUPPRESSION AND RELIEF/BOND

Denying alienage and litigating suppression requires you to keep the record clear of place of birth or make very clear legal wall

Can be hard-impossible in bond case where you need to discuss family, equities and relief

DHS has submitted our bond evidence into the removal case. Can they? 8 C.F.R. § 1003.19(d) (bond is separate from removal proceeding). Is this “independent evidence”?

SUPPRESSION AND RELIEF/BOND

Statements of alienage in a relief application cannot be used as proof of alienage or deportability where you are denying it. 8 C.F.R. § § 1240.11(e), 1240.49(e).

You will need to educate on this

May still want to leave blank or say “alleged” in relief app or FOIA

What if you do the full relief hearing and there is lots of testimony/country conditions on country of birth?

PRACTICAL ISSUES WITH SUPPRESSION

Practically works best with EWI clients with no immigration history DHS can and may file visa, evidence of voluntary

returns

May also file crim records showing POB

Termination grants no status or EAD

Difficult client counseling issues Is relief stronger?

Do you want or need 2 issues for appeal?

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