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Order of Suppression - Sanchez-Lopez (BIA, May 7, 2009)

Order of Suppression - Sanchez-Lopez (BIA, May 7, 2009)

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U.S.
Department
of
Justice
ExecutiveOffice
for
IrrurigrationReviewFalls
Church,
Virginia
22041
File:A
·
SanFrancisco,CA
In
re:
FRANCISCOJAVIERSANCHEZ-LOPEZINREMOVALPROCEEDINGSAPPEAL
Decision
of
theBoard
of
Im.migration
Appeals
Date:
MAY
-
7
2009
ONBEHALFOFRESPONDENT:
~ i c h a r d
1.
Coshnear,EsquireONBEHALFOFDHS:CHARGE:Eileen
C.
KeenanAssistantChiefCounselNotice:Sec.212(a)(6)(A)(i),
I&N
Act
[8
U.S.C.
§
1I82(a)(6)(A)(i»)-PresentwithoutbeingadmittedorparoledAPPLICATION:Suppression;terminationTheDepartment
of
HomelandSecurity("DHS")appealsfromanImmigrationJudge'sMarch
17,
2008,decisionsuppressingevidence
of
therespondent'salienage,andterminatingremovalproceedingsagainsttherespondent.Therespondenthasfiledabriefinreply
to
theDHS'sappeaLTheappealwillbedismissed.Wereviewthefindings
of
fact,includingthedetermination
of
credibility,made
by
theImmigrationJudgeundera"clearlyerroneous"standard.
See
8C.F.R.
§
1003.1(d)(3)(i).
We
reviewallotherissues,includingwhetherthepartieshavemettherelevantburden
of
proof,andissues
of
discretion,undera
de
novo
standard.
See
8C.F.R.
§
1003.1(d)(3)(ii);
Matter
of
A-S-B-,
24I&NDec.493(BIA2008);
Malter
ofV-K-,
24
I&NDec.500(BIA2008).WeadoptandaffirmtheImmigrationjudge'sdecisionterminatingproceedings.
Matter
of
Burbano,
20
I&NDec.874(BIA1994).Wefind
no
clearerror
in
theImmigrationJudge'sfindingthattherespondent'saccount
of
eventsfollowingthetrafficstopismorereliablethantheaccountgivenbythegovernmentwitnesses
(LJ_
at15).
As
theImmigrationJudgenoted,althoughtherespondent'stestimonyvariedregardinghisresponsetotheofficer'srequestforidentification,
he
wasconsistentinhisclaimthathedidnotgivehisidentificationcardtotheofficer
(U.
at
15,
20;Tr.at66-67,92-93;Exh.3A).Ontheotherhand,theofficerwhoinitiatedthetrafficstoptestifiedthattherespondentcompliedwithhisrequest
to
showidentificationwhentheofficerinitiallyapproachedthevehicle
(U.
at7-8;
Tr.
at157-59,162-65,170-72),butanICEagentwhoassistedinthetrafficstoptestifiedthattheofficerrequestedidentificationfromtherespondentandhiswitnessesaftertheywereremovedfromtheirvehicle
(1.1.
at9-10;
Tr.
at345,347-51,363-66).Also,theofficertestifiedthathedidnotknowwhoremovedtherespondentandhiswitnessesfromthevehicle
(U.
at
8;
Tr.at162-65,
171-1'2:,
176-79),buttheICEagenttestifiedthattheofficerordered
 
A
 
the occupants from the vehicle
(IJ.
at
\ 0; Tr. at 364-66). In addition, the officer testified that therespondent
was
pat-searched, and conceded that he could not recall who did the pat-search,
or
whether it
was
done before or after the respondent was place under arrest
(U.
at
8;
It.
at
185-89).As the Immigration Judge noted, these inconsistencies in the officers' testimony are compoundedby the absence
of
a written record
of
the traffic stop to corroborate their recollection
of
events(l.J.
at
8, 14; Tr. at \59-60, 165,
178,273).
Given these inconsistencies, we are not persuaded todisturb the Immigration
Judge's
determination to adopt the respondent's account
of
events as
true
(U.
at 15). Accordingly, we find no clear error in the Immigration
Judge's
finding that the
respondent's
identification card was discovered as a result
of
an
officer's pat-search
of
therespondent, and looking through the respondent's wallet
(U.
at
18,20-21).The DHS correctly asserts that even
if
evidence
of
the respondent's alienage was obtained in anunlawful manner, the "exclusionary rule" does not apply to civil proceedings
to
exclude thatevidence.
See INSv. Lopez-Mendoza,
468 U.S. 1032 (1984). However, the Supreme Court left openthe
po~sibility
that the exclusionary rule might apply in immigration proceedings involvingegregiousviolations that might transgress notions
of
fundamental fairness.
Id.
at 1050.The Court
of
Appeals for the Ninth Circuit has held that the exclusionary rule
does
apply inimmigration proceedings, to the extent
of
requiring exclusion
of
any evidence obtained as
the
result
of
a deliberate violation
of
the Fourth Amendment,
or
as the result
of
conduct that a reasonableofficer should have known
is
in violation
of
the Constitution.
Lopez-Rodriguez
v.
Mukasey,
536 F.3d 1012 (9th Cir. 2008),
reh 'gen bane denied sub nom. Lopez-Rodriguezv. Holder,
560 F.3d1098 (9th Cir. 2009);
Orhorhaghe
v.
INS,
38
F.3d 488 (9th Cir.I994);
Gonzalez-Rivera
v.
INS,
22
F.3d 1441 (9th Cir. 1994);
Adamson
v.
CU.,
745 F.2d
541
(9th Cir. 1984).
The
Ninth Circuit's rule is thus broader than the "egregious violations" standard adopted
by
theBoard in
Cervantes-Torres,
21
l&N
bee.
351 (BlA 1996), and also broader than that
of
the other twocircuits to have adopted the "egregious violation" exception to the non-applicability
of
theexclusionary rule.
See Kandamar
v.
Gon;;;ales,
464 F.3d 65, 71-72
(l
st Cir. 2006) (denying motionto suppress, concluding that "egregious" misconduct by government agents is that which involvesthreats, coercion,
or
physical abuse);
Almeida-Amaral
v.
Gonzales,
461 F.3d
231,236
(2d Cir. 2006)(while DHS officer had no valid reason to stop alien and request identification, m'otion to suppressfruits
of
stop denied; seizure egregious
if
it is "grossly unreasonable" or "sufficiently severe").Nonetheless, since this matter arises in the Ninth Circuit, our ruling is dictated by Ninth Circuit case
I.aw.
Given the circumstances
of
the traffic stop, we agree with the Immigration Judge that areasonable officer should have known that a
pat
search
of
he respondent and the act
of
eaching intothe respondent's pocket and removing his identification card from his wallet, would be a violation
of
the respondent's Fourth Amendment rights
(U.
at 18-21).
United States
11.
Wanless,
882 F.2d
1459,1465
n. 10 (9th Cir. 1989),
citing United States
v.
Thomas,
844 F.2d 678, 683 (9th Cir 1988)
opinion amended and superseded by United States
v.
Thomas,
863 F.2d 622, 628 (9th Cir. 1988);
United States
v.
Thomson,
597 F.2d 187 (9th Cir. 1979). Therefore, we affirm the Immigration
Judge's
conclusion that the evidence
of
he respondent's alienage obtruned as a result
of
hat conductis inadmissible.
2

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