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.
and Submitted March 8, 2017
Decided August 30, 2017
Opinion withdrawn July 18, 2018 Pasadena, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A076-359-028
Wolfgang Gehart (argued), Lourdes Barrera Haley, Elena
Yampolsky, and Carlos Vellanoweth, Vellanoweth & Gehart
LLP, Los Angeles, California, for Petitioner.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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
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
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).
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. See 8 C.F.R. § 236.13(b).
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).
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.
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. 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
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"
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. 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. He also argued that his
detention violated 8 C.F.R. § 287.8(b), which requires
that officers possess "reasonable suspicion" that a
person is ...