ISAAC ANTONIO MALDONADO, JUAN ALBERTO BARRERA, JOSE RODOLFO CABRERA, JUAN CARLOS SIMBANACH, EDGAR ELADIO PREDROUAN v. ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL
Docket Nos. 10-3259(L), 10-3261, 10-3262, 10-3267, 10-3271, 11-1061, 11-1063, 11-1100, 11-3648, 11-3650
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 14, 2014
August Term, 2013 (Argued: April 9, 2014)
KEARSE, JACOBS, and LYNCH, Circuit Judges.
Judge LYNCH dissents in a separate opinion.
MICHAEL J. WISHNIE, Supervising Attorney (Muneer I. Ahmad, Supervising Attorney; Alex Hemmer, Law Student Intern; Roberto Saldaña, Law Student Intern; Trinity Brown, Law Student Intern; on the brief), Jerome N. Frank Legal Services Organization, New Haven, CT for Petitioners.
ANDREW C. MACLACHLAN, Senior Litigation Counsel, Office of Immigration
DENNIS JACOBS, Circuit Judge:
Petitioners seek review of orders of the Board of Immigration Appeals (“BIA“) dismissing their appeals from decisions of the Immigration Judge (“IJ“) and denying their motions to remand and reopen. The IJ denied Petitioners’ motions to hold suppression hearings, suppress evidence, and terminate removal proceedings. Petitioners argue that (1) “egregious” violations of their Fourth Amendment rights require suppression of evidence, or at least a suppression hearing; (2) even if the violations were not egregious, the involvement of local police implicates ordinary exclusionary principles, which a fortiori require suppression; (3) regulatory and subregulatory violations committed by U.S. Immigration and Customs Enforcement (“ICE“) agents warrant termination; and (4) the BIA erred in denying motions to remand and reopen based on additional evidence uncovered in Petitioners’ separate civil rights suit. We reject these arguments, and deny the petitions for review.
On September 19, 2006, Petitioners were among persons gathered in Kennedy Park, Danbury, Connecticut, to seek work as day laborers. That day, the Danbury Police Department (“DPD“) and ICE were jointly conducting a sting operation in the area. Petitioners entered a nearby, unmarked vehicle driven by an undercover DPD officer, and were transported to a parking lot and arrested. During processing, Petitioners made incriminating statements about their alienage, which were memorialized on “Form I-213s” (“Record[s] of Deportable/Inadmissible Alien“).1 Petitioners were served with Notices to Appear, which alleged that they are natives and citizens of Ecuador and that they entered the United States without inspection.
Petitioners appeared before an IJ and moved to suppress their Form I-213s and to terminate removal proceedings. In January 2008, the IJ denied the motions and ordered Petitioners removed.
II
“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) (internal quotation marks omitted). “We review the agency‘s factual findings for substantial evidence and questions of law de novo.” Cotzojay v. Holder, 725 F.3d 172, 177 n.5 (2d Cir. 2013) (citations omitted).
III
Petitioners argue that suppression, or at least a suppression hearing, was required because of “egregious” violations of Fourth Amendment rights.
The exclusionary rule does not apply to civil deportation proceedings, in part because “a deportation hearing is intended to provide a streamlined determination of eligibility to remain in this country, nothing more.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1034, 1039 (1984). The Court left open whether exclusion might nevertheless be required for unspecified “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness.” Id. at 1050.
This Court has since answered the question left open in Lopez-Mendoza by holding that exclusion of evidence is appropriate if “record evidence establishe[s] . . . that an egregious violation that was fundamentally unfair had occurred.” Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006).2 Almeida-Amaral
What is clear, however, is that “egregious” by definition is very bad indeed, and that the Supreme Court contemplated only such abuses as “transgress notions of fundamental fairness.” As we have explained, the test for egregiousness is more demanding than the test for overcoming qualified immunity. See Cotzojay, 725 F.3d at 183 n.10. The standard is therefore stringent, entails a shock to the conscience, and is rarely satisfied.
B
The affidavits in this case do not suggest egregious constitutional violations, and therefore “could [not] support a basis for excluding the evidence.” Id. at 178.
- Petitioner was in Kennedy Park on September 19, 2006 “to find work for the day“;
- “[e]mployers drive to Kennedy Park in the mornings to hire people for short-term manual labor projects“;
- a vehicle drove up to the park;
- “[t]he driver of the vehicle did not appear to be looking for any specific individuals” and instead ”looked like he would take for the job whoever approached him first“;
- Petitioner got in the car with some other individuals, thinking he was going to a job site;
- Petitioner and other passengers were driven to a parking lot, and pushed, handcuffed, and arrested by “law enforcement officers“; and
- Petitioner was questioned and processed at DPD headquarters, and then transported to Hartford and to Boston to enter deportation proceedings.
J.A. 26-27 (emphases added). Two affidavits state that, of the 40-70 day laborers
Petitioners therefore aver only that they approached and entered the undercover vehicle without duress; they were self-selected; the driver did not appear to be looking for any specific individuals; and the driver seemed willing to take whoever got in first. These averments do not support a finding that an egregious constitutional violation occurred.
Petitioners do not allege that they were treated in a particularly severe manner. As the BIA explained:
The respondent does not claim that he was subjected to physical abuse, threats, promises, denial of food or drink, or long hours of interrogation which prompted his admissions. In fact, the respondent‘s affidavit provides few details about his questioning by an immigration officer and omits such critical information as when and where the interrogation took place, the length of the interrogation, and the circumstances under which the respondent provided the information recorded on the Form I-213.
In re Isaac Antonio Maldonado, No. A98 300 507, at 3 (B.I.A. July 19, 2010).
Nor is there any other circumstance that can be fairly characterized as egregious. The group that was targeted was ostensibly assembled to offer
C
The BIA adopted and employed the Cotzojay burden-shifting framework. See In re Isaac Antonio Maldonado, A98 300 507, at 1 (B.I.A. Aug. 30, 2011) (“[W]e held that because the respondent‘s affidavit, even accepted as true, would not form
Petitioners argue that the BIA‘s burden-shifting framework, and the requirement of an affidavit swearing to facts that could support a finding of egregious misconduct, deprive them of due process. Since (they argue) much of the information material to egregiousness will not and could not be within their personal knowledge, a hearing is needed to explore the circumstances of the arrest and the motivations and attitudes of the officers who arrested them.
As this case illustrates: unless a petitioner is first required to submit an “affidavit that could support a basis for excluding the evidence,” Cotzojay, 725 F.3d at 178 (internal quotation mark omitted), an evidentiary hearing would be required in every deportation proceeding. Every petitioner might assert a vaguely improper motivation. But few would know the source or substance of the tips and intelligence that led ICE agents to conduct a particular sting or stop
The [agency] currently operates a deliberately simple deportation hearing system, streamlined to permit the quick resolution of very large numbers of deportation actions, and it is against this backdrop that the costs of the exclusionary rule must be assessed. . . . The prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of these proceedings. . . . Fourth Amendment suppression hearings would undoubtedly require considerably more, and the likely burden on the administration of the immigration laws would be correspondingly severe.
468 U.S. at 1048-49 (emphases added); cf. id. at 1039 (“The purpose of deportation is not to punish past transgressions but rather to put an end to a continuing violation of the immigration laws.“).
Petitioners were required to proffer affidavits based on personal knowledge that, taken as true, could support suppression. Had their affidavits been sufficient, they would have had an opportunity to confirm those allegations in an evidentiary hearing. The BIA created this framework to accommodate several important but divergent interests: the rights of petitioner, the realities and
The [Lopez-Mendoza] Court . . . noted that litigating the conduct surrounding an arrest would impose an intolerable administrative burden on the immigration enforcement system. Given that officers may arrest several aliens per day, they cannot be expected to compile elaborate, contemporaneous, written reports detailing the circumstances of every arrest. Moreover, deportation hearings, which depend on simplicity and efficiency, would become immensely complicated if testimony had to be heard on the detailed circumstances of each arrest.
Rajah v. Mukasey, 544 F.3d 427, 447 (2d Cir. 2008) (emphasis added) (citations and internal quotation marks omitted). We therefore reject Petitioners’ constitutional challenges to the agency‘s burden-shifting framework.
D
Even if one were to consider evidence submitted with Petitioners’ affidavits, rather than (as the agency requires) the affidavits alone, nothing here would warrant a finding of egregiousness.
According to Petitioners, the evidence shows that Brazilians in a nearby park were not targeted by the DPD and ICE. See Pet‘rs’ Br. at 6 (“The DPD never targeted the city‘s better-assimilated Brazilian immigrant population, whose day laborers congregated at a different local site.“). This alleged disparity would seem
No system of immigration enforcement can run under these constraints.
Petitioners respond that, even if they do not state “egregious” Fourth Amendment violations, the “ordinary” exclusionary rule should apply because they were arrested by local police officers, rather than by federal agents charged with enforcing immigration law.
However, Petitioners acknowledge that “ICE agents [were] on the scene,” Pet‘rs’ Br. at 27; allege that “immigration officer[s]” took part in their arrests, J.A. 27; and seek termination of removal on the basis of those officers’ violations of agency regulations, see Pet‘rs’ Br. at 72-82. By Petitioners’ own account, ICE agents played a substantial role in the sting operation.
But whatever the role of ICE here, “[a] removal proceeding . . . is a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry.” Pinto-Montoya v. Mukasey, 540 F.3d 126, 130 (2d Cir. 2008) (per curiam) (internal quotation marks omitted). Petitioners fail to identify any authority applying the exclusionary rule in removal proceedings absent an egregious constitutional violation. There can be none: “[A] Fourth Amendment violation does not, standing alone, justify the suppression of evidence in the course of a civil deportation proceeding.” Pretzantzin v. Holder, 736 F.3d 641, 646 (2d Cir.
Accordingly, Petitioners cannot rely on exclusionary principles drawn from the criminal context.
V
The agency also denied Petitioners’ motions to terminate on the basis of alleged pre-hearing regulatory violations by ICE agents.
“[A]liens are not entitled to termination of their proceedings for harmless, non-egregious pre-hearing regulatory violations.” Rajah, 544 F.3d at 448.
Petitioners argue that ICE violated
Similarly, alleged non-egregious violations of internal agency rules do not support termination. Petitioners’ reliance on Montilla v. INS, 926 F.2d 162, 169 (2d Cir. 1991), is misplaced. That case concerned regulatory violations by ICE during removal proceedings, and the rule for pre-hearing regulatory violations is different. See Rajah, 544 F.3d at 448.
VI
Finally, Petitioners argue that the BIA erred in denying their motions to remand and to reopen.
A
“The BIA has ‘broad discretion’ to deny a motion to remand grounded on new evidence.” See Cao v. U.S. Dep‘t of Justice, 421 F.3d 149, 156 (2d Cir. 2005)
The BIA properly concluded that additional evidence regarding the DPD‘s role in Petitioners’ arrests was immaterial. As discussed above, the heightened exclusionary rule applicable to civil deportation hearings would apply anyway, and Petitioners fail to demonstrate an egregious violation of constitutional rights with or without this evidence.
B
“A motion to reopen proceedings shall not be granted unless it appears to the [BIA] that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing . . . .”
The BIA did not abuse discretion in denying the motions to reopen.6 It reasonably determined that evidence of use of force during arrest was neither new nor previously unavailable: “[T]he circumstances surrounding the respondent‘s arrest, i.e., the amount of force used, the length of detention, and other details
As to evidence regarding the purpose of the joint sting operation, the BIA determined that it was immaterial because it weakened, rather than supported, the claim that race, and not traffic safety, was the motivating factor for the arrests. See id. (“The depositions contain testimony indicating that the purpose of the law enforcement action was to take care of the safety issues of day laborers running into traffic to solicit work and that the undercover officer was to take only those day laborers whom he witnessed committing a traffic violation by running into the street to solicit work.” (citations omitted)).7 Traffic safety is a valid interest of police and while it sounds here a partial motive at best, it is not for courts to hold that this is a situation the police must tolerate, or that their motives for doing their job are subject to inquiry and review in this context. “[R]ecord support for a
VII
The dissent defines down the purposefully tough standard of an egregious constitutional violation; assumes that any conduct short of egregious is thus court-approved; and erodes to nothing the requirement of an affidavit that could make out a prima facie case.
* * *
The dissent complains that the holding of the majority opinion “rests on a cramped definition of egregiousness.” Dissenting Opinion at 2. This is odd. There is no such thing as an expansive view of what is “egregious.” Something egregious is by nature extreme, rare, and obvious. A “cramped” view (if that is the adjective chosen) is what the standard requires.
We conclude only that the conduct of immigration agents during the Danbury sting operation did not constitute an “egregious violation[] of Fourth Amendment or other liberties that might transgress notions of fundamental fairness.” See Lopez-Mendoza, 468 U.S. at 1050. It does not follow (as the dissent
By the same token, the conclusion that conduct is not egregious does not say, “keep up the good work.” It is simply not our office to bless immigration enforcement techniques, or to grade them, or (short of egregiousness) to regulate them via the exclusionary rule. We need to decide only whether the conduct of the immigration agents was egregious.
* * *
In opining that an egregious constitutional violation requires suppression of evidence, the dissent focuses on the conduct of the Danbury police, and whether they acted egregiously, without even discussing the conduct of the ICE agents who played an active role in the sting. That is a radical flaw, because the only issue in this case is whether to suppress evidence in immigration proceedings.
Among other errors in the dissent:
- The dissent duly recites as “settled law” the requirement that “the petitioner offer[] an affidavit that could support a basis for excluding the evidence in question.” Dissenting Opinion at 6-7 (emphasis in Dissenting Opinion). Although that requires an affidavit swearing to facts that constitute a prima facie case, the dissent discounts the requirement by emphasizing the verb “could,” and treating it as meaning “might or might not.” Compare Cotzojay, 725 F.3d at 179, 183 (explaining that petitioner “presented facts that, taken as true, showed that ICE officers entered his
home without consent and in violation of the Fourth Amendment” and that “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“). - To obviate the affidavit requirement, the dissent looks to material attached to the affidavit or submitted afterward to the B.I.A.: news reports and discovery in a later civil suit that explore the motivations of Danbury policy-makers and the Danbury police. Based on these sources, the dissent states confidently that the only two things the police officers knew about Petitioners were that: (1) “they were willing to engage in casual labor“; and (2) ”presumably, that they appeared Hispanic.” Dissenting Opinion at 11-12 (emphasis added). But the dissent leaves out a lot. The affidavits themselves reflect that the driver “did not appear to be looking for any specific individuals” but “looked like he would take for the job whoever approached him first,” J.A. 26-27; and that only a “majority” of the people who “come to Kennedy Park to look for work every day . . . are Latino,” J.A. 522. Omitted also are the observations of local law enforcement that “Kennedy Park was . . . a location of aggressive day labor solicitation,” In re Isaac A. Maldonado, No. A98 300 507, at 6 (Immig. Ct. Hartford, CT Jan. 31, 2008), and that “aliens with Warrants of Removal would be encountered in this group of day laborers,” Maldonado Form I-213, J.A. 5.
- The dissent quotes our observation that a seizure “may qualify as ‘egregious’ if based on race or other ‘grossly improper’ considerations,” Dissenting Opinion at 7 (quoting Almeida-Amaral, 461 F.3d at 235), and deduces that ICE may not consider ethnicity, race, or nationality when investigating illegal immigration on the part of (for example) Albanians, Koreans, Israelis, or Nigerians. As the dissent concedes, the egregiousness standard lacks any “precisely defined . . . boundaries.” Dissenting Opinion at 7. Seizure of persons based on nationality, race, or ethnicity (or handicap or sexual orientation, for that matter) can no doubt rise to an egregious constitutional violation. But it is absurd to foreclose altogether the consideration of nationality in immigration enforcement.
- The dissent variously characterizes the impropriety here as targeting persons from Latin America (a continent of all races and many nationalities), or persons who are “Hispanic.” But, as the dissent concedes, there was no blanket targeting of Latin Americans. The dissent observes
(something not in Petitioners’ affidavits) that enforcement does not seem to have been “undertaken to control day laborers at [the] nearby [area of] Minas Carne, a different location that was more heavily frequented by the city‘s better-assimilated Brazilian immigrant population.” Id. at 3-4. The dissent seems to be under the impression that this observation assists its argument. In fact, it refutes the idea that ICE was operating on the basis of race, or targeting persons from Latin America (of which Brazil is the largest country). Thus the wide-ranging hearings contemplated by the dissent would presumably explore the relative assimilation achieved by various immigrant groups seeking day labor in the several parks of Danbury. According to the dissent, only such an inquiry will ensure a sufficiently ”fair system of immigration enforcement.” Id. at 18 (emphasis in Dissenting Opinion). - Because the dissent views as forbidden any consideration of ethnicity or nationality (here, Ecuadorean rather than Brazilian), the dissent would require a hearing to find “evidence regarding the intentionality of a violation, the officers’ motivation in conducting the raid at issue, and whether the petitioner‘s race, or ethnicity were a motivating factor for the
governmental action,” as to which a petitioner affiant could not swear in an affidavit. Id. at 9. Thus the dissent inverts the rule that no suppression hearing be conducted without an affidavit containing a prima facie case, and would instead require a hearing to see if there should be a hearing. And such a hearing would consider what the agent or agents might have been thinking (to see if there is a prima facie case)--as though a person would be unaware of being the victim of egregious misconduct. Lopez-Mendoza was concerned that the “prospect of even occasional invocation of the exclusionary rule might significantly change and complicate the character of [deportation] proceedings,” 468 U.S. at 1048; the dissent‘s proposal would make invocation of the rule a commonplace tactic.
CONCLUSION
For the foregoing reasons, the petitions for review are denied.
As the majority correctly holds, a respondent in removal proceedings who seeks the suppression of evidence must come forward with a prima facie case of an egregious Fourth Amendment violation before the government will be required to justify the manner in which it obtained its evidence.1 See Cotzojay v. Holder, 725 F.3d 172, 178 (2d Cir. 2013). The egregiousness inquiry, we have held, mandates a “flexible[,] case-by-case” approach, which turns on a non-exhaustive list of factors, including, among others, whether the seizure was without plausible legal ground or based on grossly improper considerations such as race or ethnicity. Id. at 182-83. Petitioners here have offered evidence that, if true, suggests that after a multi-year harassment campaign targeted at Danbury‘s Hispanic residents generally, and its Ecuadorian residents specifically, petitioners were arrested without plausible legal justification based solely on their ethnicity, national origin, and status as day laborers. Nevertheless, the majority denies petitioners an evidentiary hearing.
I
I begin by emphasizing several record facts that the majority downplays.
Around 6:30 in morning of September 19, 2006, Danbury police officers and detectives met with United States Immigration and Customs Enforcement (“ICE“) agents at the Danbury Police Department headquarters to prepare for a sting operation at Danbury‘s Kennedy Park. The park, a frequent gathering spot for Danbury‘s Ecuadorian population, was also a site at which many persons
Danbury officials then intensified the enforcement of local ordinances, targeting housing code violations and attempting to shutdown sporting events that were popular among many of the city‘s Hispanic residents. Local officials also increased their efforts to control the solicitation of day labor near Kennedy Park. Although the ostensible reason for this targeted enforcement was traffic safety, the record does not reflect that any such efforts were undertaken to control day laborers at nearby Minas Carne, a different location that was more heavily frequented by the city‘s better-assimilated Brazilian immigrant
It was against that backdrop that on that September 2006 morning, a Danbury police officer, dressed as a contractor, drove to Kennedy Park in an unmarked car, where he was then approached by men soliciting work. Once several men entered the vehicle, under the misapprehension that they would be taken to a work site, the detective, without asking the men any questions, drove them to an abandoned parking lot where seven Danbury police officers and three ICE agents awaited them. As the men left the vehicle, they were surrounded by armed law enforcement officers, shouting “[Y]ou‘re under arrest.” J.A. 523. The undercover police officer made two other such trips to Kennedy Park that day, resulting in the arrest of 11 men, five of whom are the petitioners in these consolidated cases.
Petitioners were driven to the Danbury Police Headquarters, where they were questioned, fingerprinted, and held in detention cells. Some were denied an opportunity to telephone their family to notify them of their whereabouts or to arrange for the assistance of counsel. Petitioners eventually made incriminating statements about their immigration status, were placed in removal proceedings, and ordered removed from the United States, having entered the country without
II
In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that generally, the exclusionary rule does not apply to removal proceedings. A bare majority of the Court reached that conclusion after balancing the deterrent effects of the exclusionary rule against the social costs of extending its application to civil removal proceedings. A plurality of the Justices limited the Court‘s holding, however, specifically noting that its balancing discussion did not govern “egregious” violations of the Fourth Amendment or other fundamental rights, or cases involving “widespread” Fourth Amendment violations by immigrations officials. Id. at 1050-51.
Although this Court has not yet had occasion to consider what might constitute “widespread” Fourth Amendment violations, we have since held that
In order to accommodate the competing interests of the government in streamlined removal proceedings, while simultaneously guarding individuals against egregious Fourth Amendment violations, we have approvingly cited the BIA‘s burden-shifting framework. Under that framework, in removal proceedings, “a petitioner raising a question about the admissibility of evidence must come forward with proof establishing a prima facie case before the Government will be called on to assume the burden of justifying the manner in which it obtained the evidence.” Cotzojay, 725 F.3d at 178 (internal quotation marks and brackets omitted). Then, “if the petitioner offers an affidavit that could support a basis for excluding the evidence in question, it must then be supported by testimony.” Id. (internal quotation marks omitted; emphasis added). If the petitioner establishes a prima facie case, the burden then shifts to the government to show why the evidence in question should be admitted. Id. To suppress
III
The panel opinion‘s fundamental flaw is its unwillingness to properly apply and respect the purposes of “the Cotzojay burden-shifting framework.” Majority Op., ante, at 11. To be clear, I have no quarrel with that framework, which is settled law. Properly applied, the framework would serve to maintain the proper functioning of the nation‘s immigration enforcement system while protecting the constitutional rights of those who become ensnared in removal proceedings. First, removal proceedings are necessarily streamlined, and therefore do not carry all of the protections of criminal proceedings. See United States v. Lopez, 445 F.3d 90, 100 (2d Cir. 2006). As a general matter, suppression hearings, which are often “unnecessary, expensive, and protracted,” Matter of Tang, 13 I. & N. Dec. 691, 692 (B.I.A. 1971), are problematic in that process. The
But the proper application of the burden-shifting framework also ensures that in cases where all of the facts that would prove egregiousness are not within the personal knowledge of the petitioner, the petitioner will have an adequate opportunity to secure such evidence. Thus, while establishing a prima facie case for suppression requires an offer of proof containing information personally corroborated by petitioner, that requirement “cannot extend to information the [petitioner] does not have,” Cotzojay, 725 F.3d at 178.
We have rejected the view that Fourth Amendment violations require “physical injury or the threat thereof.” Id. at 182. Instead, we have adopted a
The majority attempts to limit Cotzojay to its facts by noting that an evidentiary hearing was warranted in that case because the “deliberate, nighttime, warrantless entry into an individual‘s home, without consent and in
Cotzojay affirmed the principle that the egregiousness inquiry “is intended to be broad,” id. at 182, and thus emphasizes that egregious Fourth Amendment violations may come in many forms. The majority‘s attempt to impose an even more stringent standard at the prima facie stage, therefore, is inconsistent with this Court‘s precedent.3
IV
As I have explained, if the purposes underlying the prima facie case requirement are to be respected, a party seeking suppression must do more than swear to facts that simply call into question the constitutionality of the agents’
It is not apparent to me on what basis the police and ICE agents undertook to arrest petitioners. Generally, “it is not a crime for a removable alien to remain present in the United States.” Arizona v. United States, 132 S. Ct. 2492, 2505 (2012). Thus, “[i]f the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent.” Id. In any event, there is no suggestion in this record that either the undercover officer or the arresting officers in the parking lot knew anything at all about any of the petitioners who entered the car other than that they were willing to engage in casual labor (and,
V
The panel majority opinion seeks to avoid that obvious conclusion on at least two separate but related grounds. The majority contends that petitioners were “self-selected” for arrest first, because they entered the undercover vehicle
The contention that the petitioners were “self-selected“--which attempts to avoid the implication that they were targeted by the authorities on an impermissible basis--ignores the evidence that ethnic prejudice may have played a role in the decision to target Kennedy Park. Petitioners offer evidence that the City of Danbury engaged in a campaign of harassment against Hispanic immigrants in the years prior to the operation, and that the police specifically targeted the Ecuadorian immigrants who gathered at Kennedy Park, as opposed to the mostly Brazilian workers gathered at Minas Carne. To hold that law enforcement officials can target a specific area on the basis of improper considerations such ethnicity and national origin, and then suggest that particular individuals selected themselves for arrest by engaging in lawful conduct is to condone ethnic harassment.
Moreover, petitioners “selected” themselves from others gathered in the park only by volunteering to accept an implicit offer of employment. They
The solicitation of work is in itself constitutionally-protected speech. See Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 945 (9th Cir. 2011) (en banc), citing Intl’ Soc‘y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 677-78 (1992); see also Loper v. N.Y.C. Police Dep‘t, 999 F.2d 699, 704 (2d Cir. 1993) (holding that begging is a form of constitutionally protected-speech). Moreover, when combined with its “self-selection” theory, the majority‘s rule admits of no apparent limiting principle, and could subject citizens and aliens in any number of occupations to indiscriminate seizure based on nothing more than their occupational status. Would any person seeking to mow someone‘s lawn be subject to seizure, on the theory that undocumented
Of course, it is not difficult to imagine the de facto limiting principle that will be utilized. It is hard to imagine immigration officers detaining and questioning a blond, stringy-haired young man of vaguely Euro-American appearance in an Army surplus jacket simply because he carried such a sign. But if the man were short, dark-complected, black-haired, and looked to the officer vaguely Latino, the calculus might well change. Petitioners contend that this is exactly what led the officials planning the Danbury sting to target Kennedy Park.
The majority‘s apparent response to those questions is that in the immigration context such seizures would be permissible so long as law enforcement displayed no “race-based animus.” Majority Op., ante, at 15. (As I have already explained, given the majority‘s disregard for the proper application of the burden-shifting framework, it is difficult to know how any such race-based animus could ever be proved.) Further, the majority appears to suggest that such seizures would be entirely permissible if they were based on factors such as apparent ethnicity or national origin, combined with the general experience of
Aside from its irreconcilability with Cotzojay‘s express conclusion that whether a seizure was based on ethnicity is a relevant factor in the egregiousness inquiry, 725 F.3d at 182, the suggestion that ethnicity can be a factor that, in combination with the solicitation of casual employment, supports rather than undermines the legality of police detention is dangerous. Tolerating arrests on such a basis puts all citizens and legal residents who appear to police officers or immigration agents to share a national origin with a large number of undocumented immigrants at grave risk. Whatever criteria law enforcement officials might use to guess a person‘s ethnic background by casual visual inspection, legal residents and citizens of Latin American origin will likely bear the brunt of that risk.
The majority‘s attempt to distinguish between “race” on the one hand, and ethnicity and national origin on the other utterly fails. Worse, it appears to condone ethnically-targeted enforcement campaigns based on generalized
The majority states that its tolerance for such broad-brush generalizations is necessary, because without it, law enforcement officials would be forbidden from conducting “raids on sweatshops, forced brothels, and other settings in which illegal aliens are exploited and threatened - and much worse.” Majority Op., ante, at 15. It is doubtless true that protecting undocumented workers, and any other person, from unsafe and illegal working conditions is a legitimate law enforcement interest, as is enforcing the immigration laws themselves. But a targeted raid on an establishment where there is concrete evidence that undocumented workers are hired differs from indiscriminate sweeps based on the assumption that anyone willing to work for cash on a daily basis (or at least
VI
At bottom, the majority‘s analysis in this case is primarily driven by its fear that “[n]o system of immigration enforcement can run,” Majority Op., ante, at 15, where the Government is forced in every removal proceeding to justify the manner in which it obtained its evidence. I do not disagree. It is precisely for that reason that application of the Fourth Amendment‘s exclusionary rule in the context of removal proceedings is limited to cases of egregiousness, and that proper application of the burden-shifting framework would ensure that the nation‘s immigration enforcement system would not grind to a halt. But no fair system of immigration enforcement can exist where these petitioners, who have plausibly alleged that law enforcement officials have committed egregious