Doroteo Sicajau Cotzojay v. Holder
2013 U.S. App. LEXIS 15626
| 2d Cir. | 2013Background
- Early‑morning (≈4:00 a.m.) ICE warrantless raid of duplex where Cotzojay lived; occupants awakened, officers identified themselves as police/ICE, took target (Cojon) out the door, then returned; Cotzojay was handcuffed, searched, detained ~18 hours, fingerprinted, photographed, questioned, and shown documents he was pressured to sign.
- Cotzojay moved to suppress evidence of alienage (Guatemalan passport, Form I‑213, statements) on Fourth and Fifth Amendment grounds; government produced no witnesses about the entry; petitioner and one housemate testified about events; no witness saw officers actually enter the home.
- IJ ruled petitioner failed to prove non‑consensual entry and, even if non‑consensual, the conduct was not sufficiently "egregious" (because there was no physical threat/violence) to warrant suppression; IJ placed burden on petitioner to prove the constitutional violation.
- BIA affirmed, concluding petitioner’s evidence was insufficient to show non‑consensual entry and that any Fourth Amendment violation was not egregious enough to trigger exclusion in a civil removal proceeding.
- Second Circuit vacated and remanded: (1) the IJ should have shifted the burden to the Government once petitioner made a prima facie showing; (2) the court rejected the view that physical force/threat is required for an "egregious" Fourth Amendment violation and found the alleged facts plausibly show an egregious violation warranting suppression unless the Government proves voluntary consent.
Issues
| Issue | Cotzojay's Argument | Holder's Argument | Held |
|---|---|---|---|
| Burden to prove consent to entry | Cotzojay argued his affidavit and testimony made a prima facie showing of non‑consensual, warrantless entry, shifting burden to Government to prove voluntary consent | Government relied on absence of direct witness to entry and argued petitioner failed to meet burden to require proof of consent | Court held petitioner made a prima facie showing; burden shifted to Government to prove consent on remand |
| Standard for "egregious" Fourth Amendment violation | Cotzojay argued that deliberate pre‑dawn, warrantless entry into the home without consent/exigent circumstances can be egregious even without physical violence | Government and IJ treated egregiousness as requiring physical threat or harm | Court held physical force/threat is not required; egregiousness is a contextual, case‑by‑case inquiry and may include pre‑dawn, warrantless home entry |
| Application of Lopez‑Mendoza exclusionary exception | Cotzojay invoked Lopez‑Mendoza’s exception for "egregious" violations to suppress alienage evidence | Government urged narrow application and relied on lack of physical coercion | Court interpreted Lopez‑Mendoza to permit exclusion for egregious violations absent physical injury and remanded for Government to establish consent |
| Remedy / disposition | Cotzojay sought suppression and vacatur of removal | Government sought affirmance of BIA order | Court vacated BIA decision and remanded for the Government to prove voluntary consent; declined to decide Fifth Amendment and regulatory claims pending remand |
Key Cases Cited
- INS v. Lopez‑Mendoza, 468 U.S. 1032 (plurality addressing exclusionary rule in civil deportation proceedings and noting exception for egregious violations)
- Almeida‑Amaral v. Gonzalez, 461 F.3d 231 (2d Cir. 2006) (discussing factors for egregiousness and taking petitioner’s evidence favorably at suppression stage)
- Rochin v. California, 342 U.S. 165 (1952) (conduct that "shocks the conscience" cited as example of fundamentally unfair methods)
- Steagald v. United States, 451 U.S. 204 (1981) (warrant requirement for entry into a home absent consent or exigency)
- Payton v. New York, 445 U.S. 573 (1980) (emphasizing heightened Fourth Amendment protection in the home)
- Oliva‑Ramos v. Attorney General, 694 F.3d 259 (3d Cir. 2012) (adopting multi‑factor, case‑by‑case approach to egregiousness in pre‑dawn raids)
- Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009) (suppression based on unreliability when improper interview procedures risked corrupted statements)
- Lopez‑Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) (discussing egregiousness standard; Court here criticized an overly broad qualified‑immunity style test)
- Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008) (example of non‑egregious Fourth Amendment violation in removal context)