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Sanchez v. Sessions

United States Court of Appeals, Ninth Circuit

September 19, 2018

Luis Enrique Sanchez, AKA Enrique Cruz Sanchez, AKA Luis Llamas Sanchez, AKA Luis Charles Sanchez, AKA Enrique Sanchez Cruz, AKA Luis Enrique Sanchez Llamas, Petitioner,
Jefferson B. Sessions III, Attorney General, Respondent.

          Argued and Submitted March 8, 2017

          Decided August 30, 2017

          Opinion withdrawn July 18, 2018 Pasadena, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A076-359-028

          John Wolfgang Gehart (argued), Lourdes Barrera Haley, Elena Yampolsky, and Carlos Vellanoweth, Vellanoweth & Gehart LLP, Los Angeles, California, for Petitioner.

          Tim Ramnitz (argued), Attorney; Jennifer P. Levings and Andrew C. MacLachlan, Senior Litigation Counsel; John W. Blakeley, Assistant Director; Donald E. Keener, Deputy Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

          Before: Kim McLane Wardlaw, Richard A. Paez, and Morgan B. Christen, Circuit Judges.



         The panel granted Luis Enrique Sanchez's petition for review of a decision of the Board of Immigration Appeals that affirmed an immigration judge's denial of Sanchez's motion to suppress evidence, holding that a petitioner may be entitled to termination of removal proceedings without prejudice for egregious regulatory violations.

         During a fishing trip, Sanchez's boat lost power and Coast Guard officers arrived and towed the boat to Channel Islands Harbor in California. The Coast Guard detained Sanchez, and he was later taken into custody by Customs and Border Protection and placed in removal proceedings, where he unsuccessfully sought to suppress evidence of his alienage and entry into the United States.

         The panel held that Sanchez had made a prima facie showing that the Coast Guard officers who detained him violated 8 C.F.R. § 287.8(b)(2), which requires that an "immigration officer" have "reasonable suspicion, based on specific articulable facts" that a person is, or is attempting to be, engaged in an offense against the United States, or is an alien illegally in the United States, in order for the immigration officer to briefly detain the person for questioning.

         As an initial matter, the panel concluded that the Coast Guard officers who detained Sanchez were acting as "immigration officers" within the meaning of the regulation. The panel explained that the Coast Guard is required by law to enforce or assist in the enforcement of all Federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States, and that when Coast Guard officers detain individuals in service of the Immigration & Nationality Act, they act as immigration agents subject to the same regulations as their counterparts in the immigration agencies.

         The panel next explained that evidence may be excluded for a regulatory violation where: (1) the agency violated one of its regulations; (2) the subject regulation serves a "purpose of benefit to the alien"; and (3) the violation "prejudiced interests of the alien which were protected by the regulation." Here, the panel concluded that Sanchez had made a prima facie showing that the Coast Guard officers violated 8 C.F.R. § 287.8(b)(2), agreeing with Sanchez that he was detained solely on the basis of his race, and explaining that race and ethnicity are never grounds for reasonable suspicion. The panel also concluded that the regulation was promulgated to serve a "purpose of benefit" to petitioners like Sanchez, explaining that the regulation was intended to reflect constitutional restrictions on the ability of immigration officials to interrogate and detain persons in this country. With respect to prejudice, the panel noted that ordinarily it is the petitioner's responsibility to specifically identify prejudice, but that where, as here, compliance with the regulation is mandated by the Constitution, prejudice may be presumed.

         The panel observed that a successful prima facie showing of a regulatory violation for evidentiary suppression purposes would normally entitle petitioner to a remand for the government to rebut the petitioner's showing. However, the panel explained that this remedy was beyond Sanchez's reach because the BIA had correctly concluded, in the alternative, that Sanchez's unlawful status could be independently established through his pre-existing Family Unity Benefits and Employment Authorization applications, both of which are admissible. In this regard, the panel noted that it is well-established that the simple fact of who a defendant is cannot be excluded, and that the fruit-of-the-poisonous-tree doctrine does not extend backwards to taint evidence that existed before any official misconduct took place.

         However, the panel noted that suppression was not the only available remedy, and held that petitioners may be entitled to termination of their removal proceedings without prejudice for egregious regulatory violations. The panel explained that certain kinds of pre-hearing regulatory violations can be remedied only by termination without prejudice; for this rare subset of cases, simply remanding for a new hearing or for further proceedings would be insufficient because the agency's violations predated any hearing.

         Thus, the panel held that a petitioner is entitled to termination of their proceedings without prejudice where: (1) the agency violated a regulation; (2) the regulation was promulgated for the benefit of petitioners; and (3) the violation was egregious, meaning that it involved conscience-shocking conduct, deprived the petitioner of fundamental rights, or prejudiced the petitioner.

         Applying this test, the panel concluded that Sanchez had made a prima facie showing of an egregious violation of 8 C.F.R. § 287.8(b)(2). The panel remanded with instructions for the agency to afford the Government an opportunity to rebut Sanchez's prima facie showing, explaining that if the Government fails to rebut Sanchez's showing that the violation was egregious, the agency shall consider whether Sanchez is entitled to termination without prejudice.

         The panel also noted that Judge Pregerson had written the panel's prior opinion in this case but that, following Judge Pregerson's death, Judge Wardlaw was drawn to replace him, and the newly constituted panel withdrew the prior opinion.

         Concurring, Judge Paez noted that, in the panel's prior opinion, Judge Pregerson wrote a separate concurrence expressing his frustration with the Government practice of encouraging noncitizens to apply for immigration relief, and later using that information against noncitizens in removal proceedings. Judge Paez wrote that he shared these concerns and agreed with Judge Pregerson that the Government's practice in this regard contradicts the nation's longstanding principle of welcoming immigrants into our communities.

         Judge Paez quoted in full Judge Pregerson's concurrence, in which Judge Pregerson had also expressed concern about the Government's argument that the exclusionary rule does not apply to Sanchez's Family Unity Benefits and Employment Authorization applications because they predated the egregious violation. Judge Pregerson wrote that categorically exempting pre-existing applications from the exclusionary rule in this way allows law enforcement to unconstitutionally round up migrant-looking individuals, elicit their names, and then search through Government databases to discover incriminating information in pre-existing immigration records.



         As Judge Pregerson poignantly described in our prior opinion: "This case is about Luis Sanchez, a small boat owner, who took some friends on a fishing trip within United States territorial waters, and ended up in removal proceedings before an immigration judge ("IJ") under section 240 of the Immigration and Nationality Act, 8 U.S.C. § 1229a." Sanchez v. Sessions, 870 F.3d 901, 904 (9th Cir. 2017), withdrawn, 895 F.3d 1101 (9th Cir. 2018).[1]

         Neither Sanchez nor his friends could have predicted the sequence of events that produced this outcome. Their plan had been to go fishing for a few hours, but after they had been out for about thirty minutes, the boat unexpectedly lost power. Stranded and with an infant on board, Sanchez's friend called for emergency assistance. Some time later, United States Coast Guard ("Coast Guard") officers arrived and towed the boat safely into Channel Islands Harbor, a recreational harbor near Oxnard, California, where Sanchez and his friends were promptly detained, frisked, and asked for identification. Although Sanchez complied and produced his driver's license, the Coast Guard continued to hold him and his friends without explanation. The Coast Guard also contacted Customs and Border Protection ("CBP") because they suspected that Sanchez and his friends were "possib[ly]" "undocumented worker[] aliens."

         Sanchez was eventually taken into custody by CBP and placed in removal proceedings, where he unsuccessfully sought to suppress the Government's evidence of both his alienage and his entry into the United States without inspection as the products of Fourth Amendment and regulatory violations. Sanchez petitions for review of the agency's decision to admit the Government's evidence. We grant the petition and conclude that Sanchez has made a prima facie showing that he was seized solely on the basis of his Latino appearance, which constitutes a particularly egregious regulatory violation. We remand for further proceedings before the IJ so that the Government may rebut Sanchez's prima facie showing. We hold that the agency may consider on remand after the Government's rebuttal whether the Coast Guard officers violated 8 C.F.R. § 287.8(b)(2) and if so, whether the violation was egregious and therefore warrants terminating Sanchez's removal proceedings without prejudice.


         Sanchez is a forty-seven year old citizen of Mexico. He was seventeen years old when he entered the United States without inspection in 1988 and has lived in this country ever since. Until December 1, 1988, Sanchez's father was a legalized Special Agricultural Worker. This meant that Sanchez was eligible to apply for Family Unity Benefits, a program that grants unmarried children of such legalized workers authorization to reside and work in the United States. See 8 C.F.R. § 236.12(a)(1).

         Sanchez submitted his Family Unity Benefits and Employment Authorization applications to the United States Citizenship and Immigration Service ("USCIS") on May 11, 2004. Both applications were granted, with his Family Unity Benefits set to expire on May 11, 2006. Sanchez applied for an extension in December 2008. This time, however, USCIS denied Sanchez's applications. USCIS concluded that he was ineligible for Family Unity Benefits and that his prior application for benefits had been approved in error, because he had previously been convicted of several California Vehicle Code violations.[2] See 8 C.F.R. § 236.13(b).

         As a result, Sanchez was without lawful status on February 25, 2010, the day he and his friends embarked on their ill-fated fishing trip from Channel Islands Harbor. The weather was balmy and the group planned to go fishing for approximately two hours. The trip was not meant to be particularly arduous: one of Sanchez's friends brought his fourteen-month-old son and the small recreational boat they took out to sea never made it beyond two or three miles from the harbor-well within United States territorial waters. See Proclamation No. 5928, 54 Fed. Reg. 777 (Jan. 9, 1989) (extending U.S. territorial waters to twelve nautical miles from the baseline).

         The friends had just settled into their trip when, approximately thirty minutes after leaving the harbor, the boat's engines lost power. Unable to make their way back to shore, one of Sanchez's friends called 911 to request assistance. The 911 operator, in turn, contacted the Coast Guard for assistance. The Coast Guard proceeded to tow the boat and its occupants back to Channel Islands Harbor. The Coast Guard officers, however, did not inform Sanchez and his friends that they would be detained once they reached the shore. When Sanchez disembarked from the boat around 5:00 p.m., he was confronted by approximately eight Coast Guard officers waiting to take him into custody. The officers frisked Sanchez and his friends and then ordered them to turn over their identification documents and belongings. Sanchez complied with the officers' orders and produced his driver's license, which the officers took. Sanchez later testified at his removal hearing that the Coast Guard officers only asked him two questions while he was detained: his name and address, both of which he provided.

         Understandably alarmed by the turn of events, Sanchez tried to ask the Coast Guard officers why they were detaining him. Instead of answering, the officers ordered Sanchez to stop asking questions and to stay put until "some other people" came to speak with him. What Sanchez did not know at the time was that the Coast Guard had already contacted CBP to report "the possibility of 4 undocumented worker[] aliens" and that the officers were simply waiting for CBP agents to arrive and take custody of Sanchez.[3] The CBP agents arrived approximately two hours later, at which point the Coast Guard officers allowed the group to release the infant to a relative. CBP then transported Sanchez and his two friends, also Latino, to a facility where they were strip searched and interrogated. The CBP officers also confiscated their identification documents. It was during this interrogation that Sanchez admitted he had entered the United States without inspection.

         The CBP officers released Sanchez later that evening and advised him to try and retain an attorney. A CBP officer separately prepared a Form I-213 (Record of Deportable/Inadmissible Alien), which noted that CBP had been contacted after the Coast Guard officers failed to "establish positive identity or nationality" for Sanchez and his companions. The form did not mention that Sanchez gave his driver's license to the Coast Guard, but it did note that subsequent Immigration and Naturalization Service ("INS") checks in four databases all returned "negative" results.[4]

         Although Sanchez was released the same day he was detained, his reprieve was short lived. The United States Department of Homeland Security ("DHS") ultimately served him with a Notice to Appear for removal proceedings.[5] At the hearing, the Government sought to establish Sanchez's nationality and entry without inspection by submitting CBP's Form I-213 into evidence. Sanchez responded by filing a motion to suppress and to terminate removal proceedings. He argued that the Coast Guard egregiously violated his Fourth Amendment rights because the detention was based solely on race.[6] He also argued that his detention violated 8 C.F.R. ยง 287.8(b), which requires that officers possess "reasonable suspicion" that a person is ...

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