8/14/2019 Order of Suppression - Sanchez-Lopez (BIA, May 7, 2009)

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U.S. Department of JusticeExecutive Office for IrrurigrationReviewFalls Church, Virginia 22041

File: A San Francisco, CAIn re: FRANCISCO JAVIER SANCHEZ-LOPEZIN REMOVAL PROCEEDINGSAPPEAL

Decision of the Board of Im.migration Appeals

Date:MAY - 7 2009

ON BEHALF OF RESPONDENT: ~ i c h a r d 1. Coshnear, EsquireON BEHALF OF DHS:

CHARGE:

Eileen C. KeenanAssistant Chief Counsel

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1I82(a)(6)(A)(i) -Present without being admitted or paroledAPPLICATION: Suppression; termination

The Department of Homeland Security ("DHS") appeals from an Immigration Judge'sMarch 17, 2008, decision suppressing evidence of the respondent's alienage, and terminatingremoval proceedings against the respondent. The respondent has filed a briefin reply to the DHS'sappeaL The appeal will be dismissed.We review the findings of fact, including the determination of credibility, made by theImmigration Judge under a "clearlyerroneous" standard. See 8 C.F.R. 1003. 1(d)(3)(i). We reviewall other issues, including whether the parties have met the relevant burden of proof, and issues ofdiscretion, under a de novo standard. See 8 C.F.R. 1003. 1(d)(3)(ii); Matter ofA-S-B-, 24 I&NDec. 493 (BIA 2008); Malter ofV-K-, 24 I&N Dec. 500 (BIA 2008).We adopt and affirm the Immigration judge's decision terminating proceedings. Matter of

Burbano, 20 I&N Dec. 874 (BIA 1994). We find no clear error in the Immigration Judge's findingthat the respondent's account of events following the traffic stop is more reliable than the accountgiven by the government witnesses (LJ_at 15). As the Immigration Judge noted, although therespondent's testimony varied regarding his response to the officer's request for identification, hewas consistent in his claim that he did not give his identification card to the officer (U . at 15, 20;Tr. at 66-67, 92-93; Exh. 3A). On the other hand, the officer who initiated the traffic stop testifiedthat the respondent complied with his request to show identification when the officer initiallyapproached the vehicle (U . at 7-8; Tr. at 157-59, 162-65, 170-72), but an ICE agent who assistedin the traffic stop testified that the officer requested identification from the respondent and hiswitnesses after they were removed from their vehicle (1.1. at 9-10; Tr. at 345,347-51,363-66). Also,the officer testified that he did not know who removed the respondent and his witnesses from thevehicle (U. at 8; Tr. at 162-65, 171-1'2:, 176-79), but the ICE agent testified that the officer ordered

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the occupants from the vehicle (IJ. at 9 \ 0; Tr. at 364-66). In addition, the officer testified that therespondent was pat-searched, and conceded that he could not recall who did the pat-search, orwhether it was done before or after the respondent was place under arrest (U. at 8; It. at 185-89).As the Immigration Judge noted, these inconsistencies in the officers' testimony are compoundedby the absence of a written record of the traffic stop to corroborate their recollection of events(l.J. at 8, 14; Tr. at \59-60, 165, 178,273). Given these inconsistencies, we are not persuaded todisturb the Immigration Judge's determination to adopt the respondent's account of events as true(U. at 15). Accordingly, we find no clear error in the Immigration Judge's finding that therespondent's identification card was discovered as a result of an officer's pat-search of therespondent, and looking through the respondent's wallet (U. at 18,20-21).

The DHS correctly asserts that even if evidence of the respondent's alienage was obtained in anunlawful manner, the "exclusionary rule" does not apply to civil proceedings to exclude thatevidence. See INSv. Lopez-Mendoza, 468 U.S. 1032 (1984). However, the Supreme Court left openthe p o ~ s i b i l i t y that the exclusionary rule might apply in immigration proceedings involvingegregiousviolations that might transgress notions of fundamental fairness. Id. at 1050.

The Court of Appeals for the Ninth Circuit has held that the exclusionary rule does apply inimmigration proceedings, to the extent ofrequiring exclusion of any evidence obtained as the resultof a deliberate violation of the Fourth Amendment, or as the result of conduct that a reasonableofficer should have known is in violation of the Constitution. Lopez-Rodriguez v. Mukasey,536 F.3d 1012 (9th Cir. 2008), reh 'gen bane denied sub nom. Lopez-Rodriguezv. Holder, 560 F.3d1098 (9th Cir. 2009); Orhorhaghe v. INS, 38 F.3d 488 (9th Cir.I994); Gonzalez-Rivera v. INS,22 F.3d 1441 (9th Cir. 1994); Adamson v. CU., 745 F.2d 541 (9th Cir. 1984).

The Ninth Circuit's rule is thus broader than the "egregious violations" standard adopted by theBoard in Cervantes-Torres, 21 l&N bee. 351 (BlA 1996), and also broader than that of the other twocircuits to have adopted the "egregious violation" exception to the non-applicability of theexclusionary rule. See Kandamar v. Gon;;;ales, 464 F.3d 65, 71-72 (l st Cir. 2006) (denying motionto suppress, concluding that "egregious" misconduct by government agents is that which involvesthreats, coercion, or physical abuse); Almeida-Amaralv. Gonzales, 461 F.3d 231,236 (2d Cir. 2006)(while DHS officer had no valid reason to stop alien and request identification, m'otion to suppressfruits of stop denied; seizure egregious if it is "grossly unreasonable" or "sufficiently severe").Nonetheless, since this matter arises in the Ninth Circuit, our ruling is dictated by Ninth Circuit caseI.aw.

Given the circumstances of the traffic stop, we agree with the Immigration Judge that areasonable officer should have known that a pat search of he respondent and the act of eaching intothe respondent' s pocket and removing his identification card from his wallet, would be a violationof the respondent's Fourth Amendment rights (U . at 18-21). United States 11. Wanless, 882 F.2d1459,1465 n. 10 (9th Cir. 1989), citing United States v. Thomas, 844 F.2d 678, 683 (9th Cir 1988)opinion amended and superseded by United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988);United States v. Thomson, 597 F.2d 187 (9th Cir. 1979). Therefore, we affirm the ImmigrationJudge's conclusion that the evidence of he respondent 's alienage obtruned as a result of hat conductis inadmissible.

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AWe also agree with the Immigration Judge that the respondent's detention and interview by an

Immigration and Customs Enforcement agent on October 2, 2006, were the consequence of thediscovery of the respondent's identification card (LT. at 23; n. at 415-36). Thus, the ImmigrationJudge correctly concluded that the respondent's admissions ofalienage during the October2, 2006,interview do not fall within the independent source doctrine and must be excluded as the "fruit" ofthe prior Fourth Amendment violations (U . at 12, 23-24). Segura v, United Stales,468 U.S. 796 (1984) (the question to be resolved when it is claimed that evidence subsequentlyobtained is "tainted" or is "(tuit" of a prior illegality is whether the challenged evidence was comeat by exploitation of the initial illegality or instead bymeans sufficientlydistinguishable to be purgedof the primary taint).

Finally, we find no merit to the bHS's argument that the respondent made in-coUr! admissionswhich amount to clear and convincing evidence of his alienage and illegal entry into the 'UnitedStates. See DES brief at 7-11. We do not conclude that the respondent made in-court admissionsregarding his alienage where, as is the case here, his testimony merely reflected his responses to thequestions he was asked once the authorities were in possession of his Mexican identification card(Tr. at 99-107). In light of the foregoing, we concluded that the motion to suppress was properlygranted. Therefore, the following order will be entered.

ORDER: The DHS's appeal is dism.issed.

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