In a powerful affirmation of the right of immigrants to be secure in their homes, a unanimous federal appeals panel held Wednesday that a Fourth Amendment violation so egregious as to warrant suppression does not necessarily have to result from a physical threat or abuse.
The U.S. Court of Appeals for the Second Circuit said an immigration judge and the Board of Immigration Appeals had wrongly interpreted case law, imposing too high a burden on the petitioners and too low a burden on the government in cases challenging the legality of unwarranted raids.
Its decisions in separate but similar cases resulting from warrantless, middle-of-the-night raids recognized a Fourth Amendment protection far stronger than applied by some immigration courts.
"Immigrants should be able to rest a little easier," said Heather Axford of Central American Legal Assistance in Brooklyn, which was involved in both cases. "We are thrilled."
Sicajau arose from an incident on April 16, 2007, in Riverhead, Suffolk County, were Doroteo Sicajau Cotzojay was awakened at 4 a.m. when he heard knocking on the windows and doors of a duplex he shared with about 20 people.
Officials with Immigration and Customs Enforcement (ICE) entered Sicajau's bedroom, handcuffed him and ordered him to lie on the floor while they conducted a search, which yielded the defendant's Guatemalan passport, according to court papers. Then, most of the residents of the duplex were herded into a van, according to the decision.
After stopping at a McDonald's, where the officers had breakfast and offered the detainees a chance to relieve themselves in the parking lot if necessary, the prisoners were incarcerated at 26 Federal Plaza in Manhattan.
Sicajau was released roughly 12 hours later, after signing various documents regarding his immigration status, and the government subsequently initiated removal proceedings.
At a suppression hearing, Immigration Judge Robert Weisel held that while Sicajau's affidavit alone constituted prima facie evidence of a Fourth Amendment violation, the petitioner had a burden he could not meet to prove he had not consented to the search and that there were no exigent circumstances to justify a warrantless search.
Weisel noted that the ICE officers' conduct was "not courteous…and was disrespectful," and found that the search was warrantless and nonconsensual. But, he found, the agents' conduct was not so egregious as to require suppression under the Fourth Amendment because Sicajau was not subjected to physical brutality or threatened with mistreatment. Weisel refused to suppress the evidence, a decision affirmed by the Board of Immigration Appeals (BIA).
Burden on Government
In its decision Wednesday, the circuit said that once Sicajau made a prima facie case for suppression, the burden was on the government to show the search was consensual, and not the defendant's obligation to show that it was not.
Additionally, the circuit said that while its precedents and those of the U.S. Supreme Court require an "egregious" Fourth Amendment violation before evidence suppression is required in an immigration case, "we see no good reason to require that Fourth Amendment violations must involve some sort of physical threat or trespass" before they transcend the bounds of fundamental fairness.
"Breaking into someone's home at 4:00 a.m. without a warrant or any legitimate basis need not also include physical injury or the threat thereof for such conduct to qualify as egregious," Wesley wrote for a panel that included Judge Christopher Droney (See Profile) and Southern District Judge Alison Nathan (See Profile), sitting by designation. "The deliberate, nighttime, warrantless entry into an individual's home, without consent and in the absence of exigent circumstances, may constitute an egregious Fourth Amendment violation regardless of whether government agents physically threaten or harm residents."
The panel remanded "to give the Government a meaningful opportunity to show that its officers obtained consent to enter Sicajau's home."
Pretzantzin stemmed from an early morning incident on March 5, 2007, when armed officers with the Department of Homeland Security and ICE banged on the door of the Jamaica, Queens, home Pedro Estanislado Pretzantzin shared with his extended family. Pretzantzin and several others in the residence were arrested and charged with illegal entry from Guatemala.
The petitioners moved to suppress any evidence yielded from the warrantless raid and Immigration Judge George Chew offered the government an opportunity to present evidence to justify the intrusion. The government, however, declined Chew's invitation and instead relied on birth certificates and other records to independently establish that the defendants were illegal aliens.
Chew found prima facie proof for suppression and said the birth certificates and other records relied on by the government had resulted from an illegal raid and, therefore, had to be suppressed.
The BIA vacated the decision. It did not determine whether the defendants suffered an egregious violation of their Fourth Amendment rights and instead cited INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), to support its conclusion that identity is never suppressible.
The Second Circuit on Wednesday joined with the Fourth, Eighth and Tenth circuits in holding that Lopez-Mendoza did insulate identity-related proof from suppression. It also said the evidence is insufficient to support the government's claim that it relied solely on the petitioners' names, and nothing that resulted from the warrantless search, in obtaining birth certificates.
"Accordingly, we remand this case for the BIA to reach the issue of whether Government agents seized evidence of alienage from Petitioners in the course of committing an egregious Fourth Amendment violation," the circuit said.
Appearing in Sicajau were Axford for the petitioner; Nicole Thomas-Dorris of the U.S. Department of Justice for the government; and Nancy Morawetz and Nikki Reisch of Washington Square Legal Services for various amici.
"The takeaway is that the immigrants have constitutional protections and if the government is going to break into their bedroom in the middle of the night, the government can't use that evidence to deport them," Axford said. "It doesn't matter that they are immigrants. They still have protections. It is core Fourth Amendment."
In Pretzantzin, Anne Pilsbury of Central American Legal Assistance argued for the petitioners and Matthew George of the Department of Justice represented the government.
Elaine Goldenberg and Matthew Price of Jenner & Block in Washington and Omar Jadwat of the American Civil Liberties Union Foundation appeared for the amici.
Vincent Picard, spokesman for ICE, said the agency is reviewing the decision.
@|John Caher can be contacted at firstname.lastname@example.org.