Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)

7/29/2019 Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)

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Markowi, Peter L., Esq.Immigration Justice ClinicBrookdale Center55 Fifth Avenue, Room 1109New York, NY 10003

U Depatment of Justice

Executive Oce r Immigraton Review

Board ofImmigration AppealsOce of he Cerk

(7 eg Pik, St 000Fl Chuch Vgi 04

OHS/ICE ffice of Chief Counsel - NYD201 Varick Rm 1130New York, NY 10014

Name: IXPEC CHITAY, MIGUEL AUGUS ... A 097535400

Date of this notice 9/16/2013

nclosed s a copy of he Boad's decson and ode in te above-eeenced case.

nclosue

P Mbv T Ly RgW L

Snceely,

D CADonna Carr

Cef Clerk

k

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)


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U.. Department of JusticeExecutive Oce r Immaton Review

Decision of he Board of mmaton Appeals

Fas Church, Vrgna 22041

Fle: A097 535 400 - New Yok Y

In e: MGUEL AUGSTO XPECCHIT A Y

I REMOVA PROCEEDINGS

APEAL

ON BEHALF OF RSPODET: Pete L akowitz Esquie

O BEHA OF HS:

CARGE:

Slva X LiSeno Aoey

Date

Notie: Se 212(a)(6)(A)(i) & At 8 USC 182(a)(6)(A)(i) eset whot beig admitte o paoled

APLICATON otion to sppess teaton

SEP 16 2013

The Depaent of Homeld Sety (DHS) appeals Immigation Judges Jy 201witte desion anting the espondents motion to sppess d teinate emoval poeedings.

The espondet h opposed the HS

appeal equested ol gment and eqested that thisBoad isse peeent n is ae The espodent's eqest oal agument is denied d wedeline the espondens eqest hat we sse preedent n hs ase The S apeal will bedismissed

The Bod evews an Immiatio Jdges nings of t nluing dings as to te

edibili of testimony unde he "eay eoneos

standd 8 CR 1003 (d)(3)() eBod eviews qestions of law dseton d jdgment ad ll othe isses in appeas omeisions ofmmiaton Jdges de novo 8 CFR 1003(d)(3)(i)

O appea e HS ontens hat the espondent shol be nd not edble that he d ot

establish apm fe ae sppesson hat the eo s evoid of evidene o eegousviolation o te espondent's onsitio rghs that Fos I213 an 21 ae sientlyaenate om a voaton o te espoet's osttton gts and at e espoet'sbth eiate s epedently sore sppessible iety evene (DS' B at 2, 89 6) The DHS asses that the Immiation dge's desion ganting he espondents mototo sppess d tenate poeedngs shold be vaated that the espondent shod be ndemovae s hge and that oeeings should be einstated

We nee ot eeat ll the al msaes o his ase a extesivel esibed by eImmiaton Jdge but we wll eview bakond inaton tat s palaly elevant adting the istant appel

Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)


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On Apil 18, 200, the repondet wa peronaly eed a Notice to Appe, aegig thathe wa a citizen of Guatemala d chging him wth being preent in the United Statewithot admiion or parole (Exh 1 e HS proered Fo -213, a record ofInadmiible/Depoable Aien, and Fo 215c, a Record of Swo Statement (Exh 2( and3( a evidence of alienage On October 10, 2008, he repondent led a motion to uppred termnate with the Immiation Judge, guing that the HS evidence wa obtaned duringan eegiou violatio of he Foh Amendment to the US Contituio, and therere houldbe uppreed d e proceng agnt him teinated On December 18, 2008, the HSled oppoition to e repondent motion wih new evidence cudig a docmetpoing to be he repondent bih ceicate om Gatemaa (Exhs 40(-46( heImmiaion Jdge dected the HS to le y wts om the aet ination on thecircumtance of he home ey, inatio uoding how the bih ceicate wa obtained,d a lit of any HS wiee in the cae Athough e HS bmied the additioaldocens to the Immigation Jde, the HS did not ubmit y witnee or rebuta evidecea to the events of pril 18, 2007

On Api 20, 2009, the repondent tetied in uppo of hi motion He tetied that onApril 18, 2007, he eted at hi home i verhead, NY, where he lived i a tee bedroomapent on the ound oor eve, th even men, including hi brother Clo d Critoba(J at 4 Exh 4 d 5( At approximatey 500 am that moing, he repondet heard thephone rng d he noie of many c iving ne h home e repodent hed a nmberof voice of mmiation d Cstom Enforcement agent yelling outside in Engih (which inot hi native lguage "[p]oice, poice, open the door! (J at 5 r at 219-20 erepondent ept in a bedroom wth hi brother Co and Critoba He tetied that there was air coditioer in the window next to hi bed, whch ipped out a the wndow w raied by agent He tetied that hi head w der the cover and thi agent reached inide thewidow and hit m o the head with a heavy metal ashlight approximatey three time, which

later caed a ge bie on hi head (J at 57 r at 28182 he agent incted him to getup ad open he ont door While the repondent dd ot get up ot of hi bed, hi brotherCarlo got up d went out into he itchen leaving their bedroom door open (J at 5 Tr at240-42 The repondent cod he that here was another aget i the tchen who he aterleed om Carlo had opened d partialy phed through a itchen window hi aget wayeling at Caro to "[o]pen the door, open the door (J at 5 Tr at 29799 e repodentobeed hi broher Caro, om hi poition in hi bed, begin to unlatch the door whe heagent puhed hi brother over and ce into hi home (r at 19 Exh 0 and 1 he agent

A und by the Immito Jdge, Exhibit 46(, adavit om ICE Supeio

Detenion and Depotation Ocer Daen Wii (which mae geeralized atementregarding the typical enrcement procedure in eect in New Yor during 2007, doe notconttte rebua evdece as it doe ot contn any perna owledge o the events April 18, 2007

Thee ct are eentialy udiputed However, the HS aert that becaue he repondetcould not ee the initial interacio beween Co d the aget leanig i through the itchenwidow, the repondent lac perona owledge about whether or not hi brother coneted tothe agents coming into hi home (HS Br at 21

2Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)


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did not have a seach o est ar but did have adminisative ant that aoed temto est ony the espondent's boe Cos (I.J. at 7; Exh. 4) Once inside the agent statedthat they ee ooking Caos and Caos identied himse to the agents.

The espondent testied that he did not h anyone give the oces peission to ente hehome no did he hea any agent ask peission o consent to ente (I.J. a 4). Theespondent tated that tee ee about 0 agents in is home that they came into his bedoomabbed him out o his bed d handcued him thout asking him any uestions eading himany igts o shoing him any papes. Whe the espondent as being taken to te kitchenothe agent kicked in a second bedoom doo that as vact but had been ocked. Late theagents asked te espondent identication and they took him back to his bedoom hee heybeg opening his aes d ooking inside The espondent testied that he did not ee eeto eave that te agents neve aked peission to sech his home and tat no one eve gavethe agent peission to sech is house (J. at 56; Exhs. 4 5(ID) 6(ID) (ID) 8()) Aethe agents ee done seacing the espondent's home they took the esidens outside to a vanhich dove them ove an hou and a ha to anhatan uesioning. The espondenttesied tat he neve tod that he as being ested o inteieed on suspicion o notbeing entited to emain in e United States hat he had the right to counse o at hisstatements might be used against him in an adminisative poceeding (J. at 6; Exhs. 3(D) 4)

On Juy 20 the Immiation Judge issued a iten decision hoding that te espondentmet his bden o making pmfe shoing (hich the HS aied to eut) that he agentsconduct as eegious (I.J. at 0; Exhs. 4 5() 6(ID) () 8()). The Immigation Judgeund tat e agents voated e espondent's Foh Amendment igs hen they enteed hishome thout an eny t o consen hen they seized te espondent ihout anyeasonabe suspicion hen hey seached his apaent without a seach art o consent andhen hey spoed him d subjected him to a poacted inteogation. The ImmigationJudge aso concuded tat e oensive conduct as highy sevee and engthy d that theseveity o he seie combined wi he Fourh Amendment vioations constiuted egegiousconduct (J. at 9 Exhs. 4 5(ID)-8(ID) and 40()46())

Whie e acknoedge he HS' aguments ith espect to the espondent's cedibiity end hat the Immigation Judge's ndngs o ct ae suppoed by the ecod d e not ceyeoneous. See Bo Yng v. Goles, 496 F.d 268 (2d Ci. 2007); Jn Chen v Dep 't ofJte, 426 F.d 104 (2d Ci. 2005); 8 C.F.R. 00.(d)(i). We nd insucient ounds toevese the Immiaon Judges decision at e espondent made apm fe and uebutedshoing that e seach and seizue actions o the agents ee eegious such that evidence

obtained though nonindependent means theeae shoud be suppessed and the poceedingsteinated. As such e a the Immiation Judges decision. 8 CF.R 1003. (d)(3)(ii).

emova poceedings an aien seekng te excusion o evdence base on the FohAmendment beas the burden o esabishing a pm fe case hat evidence shoud besuppessed. See Mtte of Tng 13 I&N Dec. 69 (BIA 9); Mte of Wong, 3 IN Dec.820 (BIA 97). The euest to excude evidence shoud be made via a motion to suppess thatis suppored by adavit o othe objective evidence that expains hy suppession isappopiate. See d. The adavit must contain specic detaied statements based on thepesona knoedge o the aant Ony hen a aien has come rd ith adeuate



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evidence in suppo of suppession w e buden shi to the DHS to justi he manne iwich it obtained he evidence See Matte ofBaenas 19 l&N Dec. 60, 611 (BIA 1988)

In addition, whie the United States Supeme Cou has hed that the Fou Amedmentexcusion e is geneay inappicae to depotation poceedings, a puaity of te Cosuggested that this e may appy if hee e egegious Foh Amendment vioations See Sv Lopez-Mendoza 468 US 32, 1050-51 (984) The United States Cout of Appeas eSecond Cicuit, unde wose jsdiction his case aises, has expessy adopted he puaiy'sview and hs nd that te excsion ue woud appy if thee wee vioations of e FouhAmenment at wee egegious "ethe because the vioaon tansess[ed] notions ofndamena faiess o because te vioation ndeied] the poaive vaue of e evideceobained See AlmedaAmaa/ v Goales 461 F3d 231, 234-35 (2d Ci 06) (tng INSv LopezMendoza supa at 0551); Melntsen v Muey 517 F3d 42, 4647 (2d Ci008)

Ahoug we ave cosistenty ed that evidence esuting om a seach and seizue invioation of Fouh mendment ights is not pe se excudabe om civi depoationpoceedings, we ave deteined that t]e cicumstaces suoundig an aest andinteogation may i some ces ende evidece inamissibe nde the due pocess causeof the amendment." See Matte of Too 17 I&N Dec 340, 343 (BIA 1980) (cases mayaise in whiche mae of seizng evidece is so eegious at to ey o it woud oend he endments due pocess equiement of ndenta faiess") Howeve, in view of thecivi naue of depoation (d emova) poceedings, te identity of aien (as disinguisedom aieage) is ot suppessie even if it is conceded hat iega rest, seac, ointeogaion occued" See Mae ofSandoval 17 I&N Dec 70, 79 (BIA 1979)

Futhe, because we e deaig wih an eymoig eny and rest that took pace in apvate esidence in this ce, we mst be awae of he nique nd seous consideations pesentin such aysis, eve in e context o a civi eova poceeding, given hat thee s a geateexpectation of pivacy and a heigtened inteest i peventing unaw aes and seaches inones home (J at 71) See Unted States v Hassok 631 F3d 79, 85 (d Ci 201) (eFou Amendment potects the ight of the peope to be secue in thei peson, ouses, paesand eecs against eonabe seches d seiues (tng US Const end IV)); seegeneay LopezRodez v Musey 536 F3d 102, 1016 (9 Ci 208) (oding tat therest of the pettione, wo did not consent to a wartess ey of e home, vioated heFou Amendment ights d noting hat aditioa Fouh Amendment pincipes dictate at asec and seizue iside a hoe without a waant is pesumptivey uneasonabe in the cmina

context (tng Pton v New Yo 445 US 573, 586 (18)) and at the pesumption ofunconstittionai hat accompies a waatess eny into a hoe may be ovecome onyby showing consent o exiget cicumstaces (tng Steagald v Unted States 5 US 24,21 (181

The Immigatio Judge obseed at ecause the agets ony had adminisative waant,ey coud ony egay ente the espondents home wi vaid consent (lJ at 7; E. 43) SeeUnted States v Isoa 370 F3d 226 (2d Ci 24) The Immigation udge und tat teagens did not obtai conset, but ahe opened widows ad paiay cawed i the, yeed atte esodent, hit he esodet a iht, pused thei way it the apet whout



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peissio, seached the espodet's apaet without peissio, d seized the espodetwithout easoable sspicio o poae case. As deteied by the Iigatio Judge, oce

the agets nouced they wee ookig Caos, he poptly idetied hiself (T at 21,24; Exs 4 d 5(D)). d at 230-33 The Iigatio udge obseed tat, at his poit, heagets ad the taget of hei wart tadig aed i the dooay, ad hat the agets coudhave coed his idetiy, aeted hi, d e he esidece Hoeve, he Iiatiodge ud hat he aget did ot do hs, bt ahe ooded the oe wth ohe agets,hadcued te espodet withot asig hi ay qestios o iig hi that e as derest o had ceta igts, seached hogh the apaet icudig opeig dawes, d eveiced i a oced bedoo doo ( at 89 Ehs 9-2) As d by he igatio Judge,e espodet did ot coset to y of is activiy by te aget (J at 9). Te espodetwas the aspoed to Mahata by va, whee he was subjected to a egthy cstodialiteogatio that ted appoxiatey seve o oe hos (Es 4 ad 5(D))

Lie e Iiatio dge, we e paicaly coceed with the actios of he ages iopeig d patiay eteig hogh he espodets widos without peissio, bgig

though his ot doo, seizig d hdcfg he espodet wthot explaatio o case,aspotig agaist his wil d ove the couse of y hous, sbjectig hi to acustodia iteogatio i he doto oce about his iiatio status, atioaity, adae of eteig the ited States See Exhs 2(D)12) see lso Almed-Am/ sup at23536 ("whie e lack of ay vid asis whatsoeve a seize sets the stage eegiousess, oe is eeded, d hodig at "excusio ay well be pope hee teseizue itsef is oss o eoabe i additio to eig without a paibe lega oud, eg,whe the iitia ilega stop is paicy egthy, hee is a show o se of ce, etc)

We ote that he DHS h the athoy to s a aie about his alieage (ie, as to his ight tobe o eai i the Uited States) de sectio 287(a)() of the Act, 8 U.SC 357(a)()See lso 8 CFR 2878(b)(2) (oig iiatio oceswe havig easoablesspicio that nte l, alie is ilegally i the ited Sttesto "biey detai he peso qestioig) oweve, he eguaios also descibe te cotext of such peissibeqestioige, "a log the iatio oce does ot esai he eedo of [he]idividul, ot de aest, to wal away 8 C.R 2878(b)() Hee, the espodet did otfee ee to waaway, ad was hdcued, tae ito custody, ad aspoed agaist is wiC PntoMontoy v Musey 540 3d 126 (2d Ci 2008)

Whie the exceptio of coset appies eqay i eova poceedigs, te DS did ot ey stateet o y oce who was peset hat eec the agets believed they wee give

coset (Exs 40(D)46(D)) the, the DHS coted siply at he espodet cod ote sue his bote did ot coset because he cod ot see evehig tspiig i the kitchedug he ia coact e ages, ad pesaby eies o a geea sateet i e21 hat the ages eceived coet (DS B at 4445 Ehs 2(D), 9-12) oeove, asd by he Iiatio dge, the DS does ot asset y bais aestig he espodetad did ot cai he ages had a easoabe eief, ased o specic, aicabe cs, hat theespodet was i the cou iegay ee hadcg hi 8 CR. 2878(b)(2) see lsoPnoMontoy v Musey sup at 12



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We rter note e ntmdang nature and severy of te agents conduct s dsconcenggven e responden's stateent tat e was not asked or tod anytng bere e wasdced, a he dd not have a l understandng of the operaton, and tha he tconsaned (e, he dd not fee ee o eave we beng dcued, se on te oor andsounded by agents). See geelly te ofSdovl sp a 83 23 ("Ou decson ns regard, of cose, does not aect the nadmssbty ... of satements or adssons at arenvonary or coerced.) tte of G 1 &N Dec 319 32 (BA 980) (respondenade pm fe sowng a admssons ere gven nvountary and te goveentpresented no con evdence procengs termnated). Also oubng s te HS' decsonno to oer the testmony of the agents wo esed d deaned e respondent durng tehearng, as such naton could hae provded y carcaton needed regardng te ssues ofconsent, probabe cause, or reasonabe suspcon ( at 8)

We conclude a e mmton Judge propey eld (on te bass of he facs und by the

mmaon Judge, whch ave no been sho to be cley erroneou) ha e agen rcedand unconsened nson no e respondents ome, as we as er maer of detanng,searcng, esng, ansporng, d nteogang the responden (wout any showng theagen ntay ad a lal reason to sech or aest e responden) were so to besucenty severe d eegous (DHSs Br. a 223; xs 912 40)46()) Seelmedml sp at235 Terere, as we nd tat e DHS dd no suceny juste mner n wc t obtaned evdence aganst te respondent any statemen or docuenttaken om m durng s est d detenton was n voaton of hs ou endment rgtsd, accordngy, such naton shold be suppressed

Te HS aso gues that the excuon rle s no appcable n s case because e

goveen dscovered evdence of te respondents removab om an ndependen source.See Seg v Uted Sttes 468 U.S796 805 1984) (oldng ta s wel estabsed thatevdence s not to be excluded f te coecton between the lega poce conduc d tedscovery d sezue of te evdence s scenty aenuated, and nong tat "[]t s no to beexcuded, r exple, f poce ad an ndependent souce r dscovery of te evdence)(ctaons oted) see lso tte of evtesToes 21 I&N Dec 351 353 (BA 996)(ndng at the denty of an aen s never tself suppressbe as he u of una est)peccaly, he S ctes e b cercate om e Guateaan goveent as ndependenevdence of te respondent's remoably (DHSs Br.a 23 x44()) n hs regard theS states at e respondens b cercate was requesed and receved o egoveent of Guatemala mons aer te respondent's aegedly lega arrest e DHS aso

ctes to te Supreme Cos decson nIS v Lopeedo sp at 1039 ong others,r te proposton that "te body or dentty of a defendt or responden n a crna or cvlproceedng s never tsef suppressbe as a ut of an naw arrest, even f t s conceded hat lal aes, search, or neogaon occued (DSs Br.at91)

We recognze tat f the respondent's alenage as dscovered throug ndependennvestgaoy ecques e remedy of suppresson may be unavaable to e respondent. Aswe have staed, "[once an aens denty s leed, e HS can entrely avod ggerng eexcuson e ..were docuents lawly n the [DHSs] possesson edence uapresence tte ofSdovl sp at9 wever, hed by te maonJudge te

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39CO ( < #" ' )014., q: )!@ c h&Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)


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DS has faed to show ow e identity doment it reeived m the Gatemalan goveent(whi it appaenty requested om that govent aer it leed e respondents namendnaai) amounts to independent evidene of e respondents removability (J.at 1). npi, he reord rees at there is no bais r ndig at te agents had any infationon the Fos -213 d I-25 por to te aest in he respodent's home e mmgationJudge her obseed tat te me ngeint, ad ivestigative seahes reveaed n preexisting reord or wnts r the respondent eope v. Toentno 26 2d 22,1214-5 (NY 2010) (itingINS v LopezMendoz sup r the proposition that the identiy ofa defednt is never sppressible te it of an unaw arrest and holding hat sine hedefendats idenity ed to the disove of is D reords ose reords were likewse notsppressible as sh "reords had bee ompiledndependenty of dendants est) (epasisadded)et nted 13 St595 (200)et dsmssed 3 S.t.387 (201).

Additionally te D S does not appea to appreiate the Immigration Judges obseration

thate respondet does not seek to suppress his identity or is bithdate (I.at 12 n8), bt teevidee of hs alienage whh he ntends stems o is unonstittiona aest and detention.Frher as deteined by the Imiation Judge e DHS oates he issues of identity andaienage ad fails to reogze that os have eated these as separate and not interhangeableelements (.Jat 2) See INS v LopezMendoz sup at 039 (noting that e DS] mstshow ony identiyndalienage the burden then sis to the respondent to prove the tie plae,d er of his e) (ephasis added); AmedAm v Gonzes sup at 234; MtteofSndov sup at 7; see so uuz v ode 629 F3d 77, 777 n. (8 ir 2010)(oting at "PRiz is not seekng to suppress his iden, but ather evidene relatng t hsaienage whih is sppressible). e miation Jdge obseed that if viy albioapa statements by te respondent were onsidered identy evidene he done

wold beoe the exeption that deats the re.

e D S also implies that he ustodia inteogation shold be viewed sepaatey om herespondents aest d arges the respondent as nt put rh evidene reting or onaditingthe information ontained in te Forms I-213 and 25 (DS' r at 5) owever it faiedto shw hat e infoation obtained dng the rest and detentio w nt a ntinuation ofe oerive ondt exhibited by e agents at e respndents home (DSs r at 4-5)See eg Sngh v Muey 553 F3d 207, 24-6 (2d ir. 2009) (nog that [i]t is wellestablished hat e Fih Amedment rds aies de proess of law dng depoationproeedings and nding that the petitioners statementswh were obtn aer oerstook onol of his and peent resident rdshold have been sppresed as e

onditions of his nteation undened he reliabiity of tose statements); Mtte of Toosup at 343 (tating t] be admissible in deporation preedings evidene mst be probatived its use ndamentally far s as to ot depve respondens f de proess of law as ndatedby the enmen); see geney Lpezodez v Musey sup at 101 (estatemens sogt to be suppressed were obtained om astelm d opez whie in stody[d] immediately llow[ed] the unonstituonal en f eir residene)

o the extent that the D S argues that the Fs 23 and I-25 e reliabe doumentsthat od be amited into evidene as tey re siety attenuated o e respondentses (DSs r.at 15; Exhs 2(D), 3(ID); Tr at 81) it hs ied to show y eor in he

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} ,( J $Cite as: Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)


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Iiio des deeiio tht the espodet's sees di his codiliteotiohich diecly led o the iio coied i he os 21 d215cee obied thoh "eeiosly ll sech d seize 11 ) SeeMtte fGmezGmez 2 &N Dec 522 B 2002) bse sciet evdece ht Fo-21 cotis itio th is icce o obied by coecio o dess the doce isiheetly ohy d dissible s evidece to pove liee o eovbility)

liht o the eoi, e ee ith the iio de's coclsio ht the OSiled o deose tht y o he evidece it poeed s sciely idepede oeed o the ille hoe id d es so s o be ee o he ti o the eeiosFoth edet violtios t he espodet's hoe 1112) s sch, e e opesded by the DS' cotetio ht i e is bde o deosi the espodetsliee sch tht the bde shis o he espode to estblish by cle d covicievidece th he eithe is llly i the Uied Sttes ps o pio dissio o is

clely d beyod dob etiled o be ditted to the Uited Stes d [is ot idissibles ched S' B t 116) See Ctj v Hle Fd , 201 927605 2d Cily 1, 201) Petztz v Hle, d , 201 W 927587 2d Ci ly 1, 201)8 CFR 12408c)see ls sectio 240c)2) o the c, 8 USC 1229c)2)

s, e the Iiio de's decisio th the espode estblished tht thecicsces sodi his detetio, res d iteotio ee scietly eeio ot o his oio o sppess d h the OS peseed iscie dissibleevideceto sppo the ches o eovility, sch ht he poceedis shold be teitedCoy to the DS' gets o ppel, e coclde tht the itio desellesoed decisio cois o cle eo i its descipio o the elev cts i this

te d th it coecly lyzed the dispositive lel isses pst to bidi cse l dlel thoity s sch, e coclde th the iio de popely djdiced theespode's otio d povided dely he o ll pties, d tt the OShs ot coe d ith y vlid bsis to evese he decisio o o ed he te dditiol poceedis

ccodily he lloi ode ill be eeed

We ote h eihe he Iitio de o the Bod y pevet the OS oiiitieovl poceedis is the espodet i the te bsed o ods elted ohe esodes ll sech d seze o il 7 00 the, le e edisissi he OS ppe o the iio des decisio, the espode hs o obied ll bsis o ei i he Uied Stes s esl o hese poceedis We lso oe thi lih o the bove deeiios, e eed o ech the S' eii etscldi the coeo th the miio de ipopely elied o pblished ce li lti he decisio. See Mtte Sts 19 & Dec 105 1984)



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RR: e S appea is dismssed

FR B



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ITED STATES DEPARTET OF STICEECTIE OFFICE FOR IITIO REIEW

ITED STATES IIRATIO CORT01 ARICK STET

EW OR EW OR

July 20

he Mate o:I REOA PROCEEDIS

IPEC CHITA gelA 097535400

Resodet

CHARGE NA 212(a)(6)(A)()Peset whou adsso o aoe

APPLICATO Moo o suess; erao

ON BEHALF OF TE REONDENTPee Makowtz, Esqgao Justce ClcCadozo chool o Law5 Fh Aeue

New Yok NY 0003

ON BEHAL OF DHTaya BoseeAssst Che Cousel201 Vack treet, Roo 130New Yok, NY 0014

DECISIO AD ORDERS OF THE IIRATIO JDE

I PROCEDRA HISTOR

Mguel Ixec Chtay ("he Resodet) was aesed by mmgato ad CustosEoceet ("CE ) ages a hs hoe Rehead, New ok, o Apr 18, 2007 a saeday he was aspoted to Maa, quesoed ad esoaly seed a Noce to Aea(NTA) Te NTA alleged tat he Respode was a cze o Guateala ad chaged h

wtheoablty unde seco 22(a)(6)(A)() o he Igao ad Natoa Act ("Ao "Ac) [Exh

he esodet apeed ee e Co d hough cose, deed e alegaosad chage the NT A The Deae o oead ecurty ("DH ) poeed Fo 213Recod o Iadssble/eoale Ae, ad o 2 c, Recod o wo tatee, suot o s bude o oe e Resodes aleage y cea ad cocg edeceExhs 2(D) d 3(D)] O Octobe 0, 2008 he Resodet ed a Moto to ess ad

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eminatePoceedings, aging aong othe things that DHS's evidence was gatheed ineeos violaio of the Fouh Amendment, and heee should be suppessed adpoceedigs against him teinated he Cou diected DHS to e any waant om the aest,ation on he cimstances of the ome eny, and a ist of any DHS witnesses in the case

On Decembe 18, 2008, DHS ed an opposition memo d additiona aeged evdence,incuding a docment puoting to be the Respondet's bith ceicate om Guatemaa [Exh40().] At hat time, DHS indicat that it was no onge elying on the 213 o 5c aspoof of alienage and was ony elyig on he bith ceicate The Cout noted that DHS hadnot submied evidence of how the bih ceicate was obtaied, no had it led a ist ofwiesses The Cot also inscted DHS to be pepad wit any ebutta witesses ostatements the next heng, as the egal and cta issues wee clea and the Cout coud notguaatee that it woud schedule additiona individua heangs in the cae

O Apil 20, 2009 the Respodet testied in suppot of his otion DHS indicated thatit was eyng on te I213 and 21 c in addition to the bi ceiate, as poof of alienage

DHS also questiod the Respondent diecty, althogh he invoked his Fih Amendmet ightagaist self-incimination and declined to asw questions about his alienage Fo the easonsoutlined below, he Cout wil ant he Respondet's motion ad teminate he poceedigswihout pejudice

II EXIITS

The owing docets wee admitted into evidence o maked identicatio:

Exh1Exh (ID)

Exh3 (ID)

Exh4Exh5 (ID)Exh6 (ID)Exh7 (ID)Exh8 (ID)Exh9Exh0Exh11

Exh1Exh 13 (ID)Exh14 (ID)

Exh15 (ID)

Exh16 (ID)

Notice to Appea (seed Ap 18, 2007);Fo 213, Recod ofnadmissibe/Depoable Aien, the Respodet

(Ap 18, 2007);Fo -21 c, Recod of Swo Stateet, the Respodent (Ap 182007)Adavt of the RespodetAdavit of Caos xpec Chitay;Adavit of Hecto BatzinAdavit of Fancisco Reyesdavit of Cstoba xpec ChitayPhotoaphs of doo iside the Respondent's apaentPhotoaph of the Respondet's bedoom windowPhotoaph of the Respondent's kitchen window

Photoaph of otide of the Respodent's apaetSampe Fo 21eclaation of Nassa Coty Police Commisioe awece Mlve(Sept 9 008)Lette om Lawence Muvey to C Residet Agent in Chage JosPamese (Sept 27, 2007)ette om Nassau County Exeutive omas Suozzi to DHS Secetayihae Cheto (Oct 2 2007);

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Exh. 17:

Exh. 18:

Exh. 19:

E. 20

Exh. 21 (ID)Exh. 22 )Ex. 23 (IEx. 24 (ID)Exh. 25 (ID)Exh. 26 )Eh. 27 )

Exh. 28 ):Exh. 29 (ID)Exh. 30 ):Ex. 31 (ID)Exh. 32 ):Exh. 33

Exh. 34

Exh. 35 (IExh. 36 (ID)

Exh. 37Exh. 38

Exh. 39 (ID)

Exh. 40 ):Exh. 41 ):Exh. 42 (ID)Exh. 43Ex. 44 ):

Exh. 45 (ID)Exh. 46 (ID)

Exh. 7 (ID)Exh. 8 ):Exh. 49

Exh. SO:

DHS Oce of Inspecto Genea An Assessment of Unted StatesIigation and Custos Encement's Futie Opeaons Teas(M 00);Lete om DHS Secetay Mchael Cheto to Sen Cstophe Dodd(Je 4 00);

Redacted excet ofCE Detenton and Depotaton Oce's FelManua (Aug 003);DHS Oce ofmmgaton Statstcs 006 Yeabook of ImmigationStatstcs;Decaaton of eaz Veasquez;eclaaton of Sona ona;Declaaton of Ede ona;Declaaton of Calos Lopez-RaosDecaton ofYanet Matnez;Declaton of Donso Chcas Moan;Decaton of des Vlla-Duan;

Decaton of Jose DuanMatnez;Declaton of Ma Raos;Declaaton of Hecto Mea;Declaaton of Jae Montes-Floes;Declaaton of Gonalo Juez;Poposed egsaton S354 th Cong d Sess, egadng mmgatonaests and etentons;Lette om Sens Joseph Lebean Cs Dodd, and Rosa DeLauo toDHS Secetay Mchael Cheto (June 1 00);Open lette om clegy egadng ICE ads (May 5 00);Complants n dea lawsu egadng aleged Fouth menent

olatons n ICE home encement actons;News atcles egang ICE encement acons;Law eew acles egadng ICE actons and possble Fouhmendment olatons;mende Stpuaton an Ode n Faes Feedom ICE (Sept 18008); cecate o Guatemaa wth anslaton;Fo I13 Clos Ixpec Chtay (ssued Ap 8 00); sheet Caos Chtay;Admnstate Waant Calos Ixpec Chtay (ssued Ap18 00);Guatemalan consula ID ca the Respondent;

Guatemalan de's cense the Respondent;Adat of ICE Supesoy Detenton and Dotaton Oce DaenWlams (sed Oct 4 008);Adat of ess Chu (sed Ma 1 00);Vd otage ofayout of the Respondent's apaent;ICE Memoanda egadng Fute Opeatons case oad poty (Jan 004);Maton Polcy Insttute Colatea Damae: An Examnaton of ICE's

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Ex. 5Ex 52

Exh 53

Exh 54:

Exh 55

Exh. 56Exh. 57

Fugtive Operations Pro (Feb. 2009);loo plan of e Respondent's apent on Api 18 2007;Floo pl of the Respondents apaent on Apl 8 2007 withdescptive making made dng testimony;

Cdozo mignt Jstice Clinic: Constitution on ICE A RoonImmiation Home Raid Oerations (2009;Imiation Co and Bod of iation Appeals decisions onmotions to sppess;ICE Memoandu on National Fugive Opeations Poam (Dec 82009;Additional Immiation Cou decisions on motions to sppess;Additional law eview aticles egading Fot Amendment adjudication

in iiation cos

III TESTONY

The Respondent testied at on Apil 18 2007, e lived at 110 Union Avenue,Rivehead, New Yok The apent is a ee bedoom-nit on e ond oo of a house,

ad on that date the apament was occupied by seven men He st in a bedoom with theeoe individals his botes Calos and Cstoba, nd anote peson naed Olando Thetee bothes had beds, and Oando, who ad only been stayng tee about eight days, slt ona small matess on the oo A second bedoom was empty, and ad a locked doo A thidbedoom was sed by men named Fancisco Reyes, Hecto Batzin, and Felix3 The Resondentstated at the esidents of e house would lock e ont doo at nigt, ad woud sally cecktat te windows wee closed bt did not always ceck

At abot 500 in the moing on Al 18 te Respondent was in is bed, awake because

the phone ad g a lile ealie and woken him up He stated that e ed e noise of casriving, and thinks a couple of cas came up ontoe diveway next to te ose, while moecs styed by he ont of the ouse ee was a window next to he Respondens bedwith ablind on it and the Respondent moved te blind to e side and looked out He saw peoplegetting ot of the cas and unning aond he hose The Respondent emained in bed and

coveed s ce He head agessive voices speaking in Englis, saying, "Poice olice, oente doo!

e Respondent testied hat tee wa an ai conditione in e window next to his bedWhile is head was de the coves, e ai conditione ll, and the window was aised p agent hit im on the head wi a heavy meta ashlit thee tmes. he Respondent took his

ead out om de the coves ad saw e agent wih te ashlight, wo told hm to get u andopen the doo He stated hat e agent's body was half inside is oom and haf outside thehose he Rspondent tested at e late ad a lage bise on is head om e aslit,alhoug e did not know wy is detail was not in is witen statement

1 s beoom mae Beoom# I on e oo plan [E. 52.2 Maed as Bedoom# 2 d.3 ae Beoom# 3. d

:m ta.s

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The Responden sated hat he did not ge up bu his broher Caros wen out o thekichen eaing the bedroom door open The Responden head anohe agent's oice whichsounded ike it was by o nea he kitchen winow He coud no see he agt om where hewas bed The oice was ey agessie and screamed a Caos Open the doo open thedoo!" The Responden staed tha Caos aer tod hi a e agent had one o inside and

oneot ouside the window He ater staed that Caos tod hi the agent came compeeyinside the chen

The Responden saw Caros open the on door. he was remoing he ach agenspushed hi oer" and came ino the house. He esied that he did not hea Caos or any oherhouseate e pission o ener the home nor did he hea any agen ask peission oene The Responden saed hat he agen who had been a hs own bedroom window cimbedback ou an came in through he ont doo. He did no know how any agens in ota eneredthe home He saed that u agents came ino his bedroo one was in he kitchen and he reswere a oer the house He aer esimaed tha here wee moe han en agens in he houseA agent abbed he be o his bed abbed hm by his shoude and go hi up ou of

be The agent then put pasic handcus on the Responden wih his hands in ont of him eRespondent test that bere he was handcued he did no say anything and no agens asehim any quesions ead hi any ights or showed him any papes He staed that he did no eee to eae

TheResponden staed hat the agents ook him to the kichen he was moing towadhekitchen he saw an agent beak down a door by kicking it in This was he doo o the secondunused bedroom which had been ocked e Respondent aso saw a the kichen window wasaised a e way up and saed hat i had bee cosed but no ocked the night bere eagens sa the Responden down on he ound in the kiche and aked on phones and raiosAgens we suounding the esidents of the house as they sat on the ound The Respondent

was s handcued and stated tha he did not e ee o ge up and eae

The Respondent estied ha the agents asked him idenicaion and ook hi backo his beoo They opened the awes and ook inside The Responden oes not now ifhey obained ienicaion in he roo or no He saed hat he nee gae peission o searchhis house head any housemae e peission tosearch nor heard any agens ask rpeission to search Aer the agents wee done oking through he drawers they ook heesidens outside and pu them in a an The Respondent saed tha the agens doe hem toManhattan ahou he ony eed where they were aer They were taken to oce but hedid no ow he addess He saed hat the ip took an hour d a haf o more

TheRespondent esied hat two agents asked him quesions in the oce an statedhat they spoke ery agessiey. He ecoized the agents as hang been n his house. Thequestioningook pace in Engish which the Responden osy did no udstand ahouone of the agents did spe a ie pansh He sae hat he sied a o of paps i Engishand aeed that he had siged Exhibit 3( He tesied tha the agens o him to si quickyso he coud eae quicky and aso tod him hat if he did no si quicky he woud be back inthe oce in a monh.

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he Repndent tated that he a never tld that he a being eted r nterveedn upcn f being an alien nt enttled t remain the United State, that he had the rght t berepreent by cunel at n expene t he gveent, r hat h tatement ght be uagant hi in later adiniatve prceedng

I LEGAL STANDARDS AND ANALYSIS

I Applcabl f Eclusary Rule Remval Prceedgs

A a prelinary atter, the Curt decne t adpt HS' lengthy arguent hat neitherimiatin judge nr he ard f Iatin Appea (d" hud e n the ert fn t uppre rurth Aendent viatn. HS ref at 227 hee argmentee recently rejected n detai by the Bd in Juan Cl Guevara-ata, A97-53529 (BAJune 4, 20 (unpublhed, at 57 he Bd ade clear, d the Cut aee, thatmatin cut are bth able and required t prtect repndents' cntitutinal rts, andthat the Secnd Circuit exprely authrze upprein n the cae f eeu cntutinal

vilatin. AeidaAaral v Gnzae, 463d 23, 23435 (2d r 2006 ee aMenienk v ukaey, 57 3d 42, 46-47 (2d Cr 2008.he Supre u n INS v Lpez-Mendza generaly precldd the ue f the

exclunary le n reva prceeding, bt le pen the quetin f hether evdence ghtbe ppreed fthere ere rean t beeve that Furth Aendment vilatn by atinagent ere depread r fthere ere eeg vatn f the Furth Aendent hchundened ndaenta e r the pbatve vaue f the evdence 468 S 032, 0505 (984 he Secnd Circut tk up the nvtatn n Aeida-Aar, hldng that excuinfevdence i indeed apprpate f the repndent etabhe either (a that an eeuvatn that a ndamentaly unfar had ccued, r (b at e vilatin -- regdle f it

eeune r unfae undeined the reability f the evidence in dipute" 46 3d at235.

n dicung hether there a an eegu viatin, he urt cndered t ctthe validity r nvadity f the ezure r gveent cnduct (the enivene f the actn;and the everty f the eizure r gvent cnduct d he urt und that hegveent' cnduct in AeidaAal' cae a a Fu Aendent vatin, bt nt anegreg ne. Under the rt prng f the tet, AeidaAaral a tpped thutreanableupcn, but nt necey r a rean a enve a h race; and under theecnd prng, h ezure a very d n nature and cnted nly f beng verbally rdered ttp by an cer Id at 236. Since the eize telf a nt cienty evere, the baee

tp cud nt be cndered eeg vatn. Id at 23637 e Cut tated that evere

4 A t decdes hs cas on other grounds the Cou does not reach he espondents argens rgardngsuppresson bsed on wdesprad consttuonal olatons ee esp. s PostHearng Bre at 23-25 e Couds t most appropat to cus on he specc edenc regardng he espondents aest whch s dspose ohe moon to supprss nstead o expandng he cass scop to a natonwde xamnaon o ICE actons. ThCou aso dos not rach th espondents argumens that procedngs shoud b tenated bsed on regulatorolaons b ICE Id at 2935 Th OH b repated r to mgraton judgs as "EIR adudcato h tte and authot omgraon udgs s explct antd b staute and rgulaton NA 0b)); 8 CF 240.

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seizues mit be paticualy lengthy o clude a show o use of ce, but was clea that it wasnot povidng " exhaustive list of what might costiute a eegious violation of anindividual 's ghts. Id. at 23 5 236

The espondent beas e buden of establishng a prim fie case suppession, whch

must include detaed adavits o othe objectve evidence See Matte ofTang, 13 &N Dec691 (BA 1971); Matte ofWong, 3 I&N Dec 820 (BA 1 97 ) f te esondent establishes aprimfie case the buden shis to DHS to justi the manne in whch it obtained theevidece Matte ofBceas, 9 &N Dec 609, 61 1 (BA 988)

II Egreous Fourth Amendment Violaons Responden's Aes

Whie upubished Boad decisions do not have pecedential value the Cout notes thatGuevara-Mata in which e Boad uphods an I's at of a motio to suppess and teiatedeas with a case nealy idetica to this oe e cases both ivolve e sae cit d timepeiod (Rivehead, , MchApil 2007), cel home e by multiple CE agets without

waat o consent, handcug esidets bee asking them any quesos o advsing them ofghts, waatless seach of bedooms ad seizue of idetication documents sotatio toMahatta te custodia inteogatio ad DS inoductio of docmets om a eigoveent gatheed a esut of the aest as puotd indepedent evidence of alieageA097535-29 1 at 24, 9 1 0 Dieences in the cts ae discussed below; most otaly, the homeeny in this case is moe sevee he Cout nds the Boad's decisio in GuevaMata hilyeevat and pesuasive, and adopts much of its easoig

A. Volaos Home Ery, Seure, ad Seach

I ome enwithout waant o cosetThe coe of Fouth edment potection is the t to e ee om uustied

goveet nsion into one's home See Payon v New York, 445 U S 573 585 (1 980) TheRpondent tsted ciby and consistenty with s adavt about the events of Api 1 8,2007 and based on the ecod the Cout nds tat such a unjustie inusion too pace CEagets etee the Respodent's home not y egal means but y intiidatio: by attemptig tocawl though e widows ealy i te moig shouting at the esidents to open te doo adpshng tei way tough the doo without waat o cosent

t is udisuted that the CE agets did ot have a udicially appoved seach o aestwaat o Apil 1 8, 2007; they had a admiisative wrant tat aowed them to aest only

the Respodent's bothe, Calos See [Exh 43J heee CE could ave only egay eteedthe apaent with vaid consent the existence of which is the goveent' s buden to poveUnited States v sioa, 370 3d 226 230 (2d Ci 200) CE did ot gn conset esposeto agets cming in though hs widows d shoutig to ope the doo, Caos ope e doo,upon which te agets pushed thei way into the apatmet without peission See id at 233(whee numeos agents eteed the imitedEngish pettione's ome, yeed at hm, ddemanded he consent to a seach, o valid coset ud) he Respondet testied that heneve head a uest to ente o anyoe ting cset the agents enteed they stated i

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ngls hat tey were lookng r Carlos and to er good te Carlos proptly denedisel t ths po wit ter age sandng ned in te dooay coning sdentity IC agents cold ave ested m and le. Insead lple agents cae terinsde and enered te apaens bedrooms were hey encontered te Responden

DHS essenially concedes s seqence of evens bt sggess hat soeow Carlosopenng te door d dentng iself mt ave ven te ocers he reasonable belief thatey cold ente DHS Brief a 444. Te Cot as no dea ow ts wold constitte consento ente and DHS ces no case n sppo of tis poposition A y rate DHS sbmted nostaemen o any ocer wo was present at staes at agens believed tey wee gvenconsen e goveents eny nto e Respondents ome was wthot eny waant orconsen and volated te Responent s Fort endment rgs

Seze wto reasonablesspicionCs seizre of te Respondent was also a volation of te ot enden Te

Respondenttestied cedibly a an C agen cae no s bedoo reoved i o isbed and andced i wto even askng im any qestions Te agent pysically dreced to te ktce d sa down on he oor were e was sonded by ote agens Tseasly consttes a seze C PinoMontoa v kasey 4 F.3d 16 d Cr 8oon o sppress dened were peioners were no seized as tey were no resanedpyscally or by a sow of atoty

DHS as not pt t any bass at all r e seize of te Respondent t as notclaimed ta e ocers ad a reasonable belef based on specic atclable cts tat teResponden was n e cony illegally bere andcng See 8 CR 878bTe Cot declnes o nd at te seizre was racebased wile i mgh ave been also

t ave been ot of general oveealosness and te agens desire o aest every person nhe ose. s hee are w cts n he record regardng te ocers otives e Cot nds tpden o nd only tat DHS dd no demonsae any reasonable sspicon r sezng teRespondent

DHSs argent ta s sezre of te resdents of te aparen was consstent wit apoectivesweep of te preses" is otally napposie o te legal standards r pectiveswes DHS Bef at 4 A swe s atorized wen oces ave reasonable sspicion hatteea arbos dgers persons and s lted to a crsoy inspecon" of places werepeople mght be dng. Mland v Bie 44 US. 3 3336 1 protectve sweep sno a ll seac of he premses" see also Unted Saes v Hassock 631 F3d 7 86 d Cr.11 notng conc ta too geneosly consng is docne wll enable pretetalwanless ome seaces As noted bere DHS as advanced no atclable cs abo isbelefs regardng e oe enty d nsead of qckly aesting ter taget a te door Cagts ped past to rond p every person n te apaen kicked n an ineior door adseaced hrog closes and drawers. The ome raid can n no way be reamed as aprotectve sweep"

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3 . Search without waran or consent

ICs wanless search of the Respondents apaen also voated he FohAendmen Paon, 45 U.S a 586 (stating tha watess home seaches are prespivelyeasonable). Aer handcung he Respondent and te oher residents of hs apaent, E

agets asked r identication docmens, but did not aow the Respondent to retrieve themInstead, they searched throug is bedroom without a waran or is consent hey also appeato have rcelly kcked and peaneny damaged a door dung teir search [xh. 9. ] heRespondent testied crediby at he was not sown any papers and that he was never asked rconsent to seach, nor did he hea anyone else asked r consent There was also no evidence ofappaent exception, such as exigent circumstances, and r te reasons aboe te search metnone of te standads r a protecve sweep.

B. Egregousness of Volons

t is not enough r the Respondent to estabish tha ICE vioated the Fouh mendment

in its rad on hs apaent; he must aso show tat he violaons were eeous. The Co that he has done so nder he stadads aricuaed y the Second Circuit meidamara, the Cot deteined that while the seizue of the pettioners lacked reasonabesuspicion, it was so mild in natue as to amost not e a seiue at a, as it consisted ony of nocer verally ordeng the petitioner to stop 46 F3d at 235 As a resul, the oensiveconduct was not comined with a severe enou seizure to be deemed eeous his casepreents a very dierent set of cs

Te seizure of the Respondent was both igly severe and lengthy. IC gained access tothe Respondent hough illegal home enry maked by aed agents paially or compleelycrawling though the windows hitting Responden with a ashlit, shouting orders to the

residents to open the ont door, and hen enterig he ome withot a waran or even asking rpeission o enter Despite leing hat the person who opened he door was actualy heirtaget, ICE agent continued te operation ad adcued the Respondent in hs bedroomwiout asking hm any questions or ining im that e was nder aes or had ceain rgtsIC sat the Respondent ad hs oommates on he oor, handcued and sonded by agents,and hen drove to anhatta r inteogation. The entretime in cstody, om the aestsholy aer 00 AM to te Respondents release om questionng in Manhattan, appeas ohave been seven hours or more See [xh 2(ID) (showing te Respondens Fo 2 3 wareceived" at 200) [Exh. 43(D)] (sowing te aest waant r Clos was seed on hm at1 :00 P) Tis is enirely dierent om the bef roadside stop conidered n Ameida-Aaral.465 F3d a 23.

e sevety ofthe seize is then combned with te oensiveness of he Fohmendmen violaions in ths case, a illegal ome entry where DH S has not sumitted nyevidence tat it believed in good ih that agents ad consent to enter, and an aest ad seachwithout any clam of proabe cause or reasonabe suspicion e picture panted y the recordof e events of Apl 8 demands seious jscation or rebual DHS submied neithe heout, like that inAlmeidaa, does not nd that the Respondent as proven a race-based

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sezue Nevetheless he volatons wee oe sevee than n AlmedaAaa, ue o thentmatng coecve natue of the hoe eny

nally he hoe eny aest an seach n ths case cosely eseble the cts nGueva-Maa, whee the Boa uphe a nng of eegousness wh the eence tha thehome enty hee was even oe cel an nheenly coecve A0975 5291 a 2 0 TheCou heee ns ha une the sanas cuate by he Secon Ccut the goveentconuc n he Responent's home was both egally baseless an hghy sevee such tha consues eeous volaon wang suppesson of the govent's evenceAmeaAaa 461 at 256

As the Responen et hs uen o ake ou a prima face case suppesson hebuen shs o the goveent to jus the anne n whch he evence was gaheeBacenas, 19 &N Dec a 61 The Cou was explct wth he pates that t wou not houltple nvual heangs an tha snce he ctual aegatons wee cle o eResponent's submssons HS shoul submt potental wtness stateents o ebuttal evence

n pepaaton he Ap 20 2009 heang so as o eectvely use the pates' tme Po ohat heang HS submtte Exhibts 40(D)46(ID); howeve HS chose not to pesen anywesses o submt y ebuttal evence about the events of Ap 18 20076 such heCou ns hat DHS not just the anne n whch ts evence of aenage was obane

an wl suppess al such evence gatheed as a esul of the Responen's Apl 18 rest

II Adssblty of rth ertcate

A Attenuaon and ndependent Source Doctrne

The Supee Cou n Loez-Mendozanote that povng alenage wl soetmes bepossbleusng evence gathee nepenently of o sufcently attenuate om he ognalres 468 S at 04 The goveent agues that Exh 44() a bh cetcate sevence that was gathee nepeneny of he Rsponent's aest an s sucenty

attenuae o the events a hs hoe as o not be cnseed " of the posonous ee SeeSeav Une Sates, 468 S 796 804 (984) (stang that he excusonay le extens onec poucts of unconsttutonal conuc) e Cout sagees

DHS s the py who beas the buen of povng ha evence s sufcently aenuateto be assble See Bown v Ilnos, 422 S 590 604 (1975) te States v O, 9212 442 447 (2 C 1990) The Cou has no evence bee t expanng how o when DHS

obane the cetcate espe my oppounes HS o le afavts o oe evence

Staeens by counsel ung heangs ae no evence Matte ofaueano, 9 &N Dec n2 (BA 98) Even hose bef saements howeve ncae that the ocument appeas tohave been oban though ec elance on he 21 whch f te woul be a cea exapleof"t of he posonous ee

Exhbt ) an adat ofICE upsor Dtnton and potaton c Dan Wams whch maksgna statmnts about ICE ncmt opatons n Nw Yok n 2007 dos ot costtut butta dncscth author xpsss no psona owdg of th opaton at th spondents hous and w not aaab crossxamnaton

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e Cor has o basis r ndig that te documet was gathered idedently o eination o te -2 1 3 and -21 5c, especially since OS admitted that it did ot have ayrecords r the Respondent bere the aest i his home ad its database checks ed up opreexising crimial or othe records See GuevaraMata. A09-535291 at 8 (rejectingevidece because OS ailed to show how reig ideny docmets were idepedentevidence, sice it appeared OHS had no kowledge o the respondes bere the illegal estand requesed the rei documets oly aer leg the respodets' ationalities dung theiteogao); compareMater oCeatesTorres, 2 1 l&N Dec 35 1 , 352-53 (BA 1 996)(dig idepedent evidece o removability where the respondent had voluntarily submedhis employment authorzation card to the Court) OHS is coect i arguig that atteuaioanalysis is oe more complex h ding a simple butr" connection bewee thecostitioal violatio d evidece later obtaied udso vMichigan, 54 S 586 (200)e Court does not eed to egage i legy analysis, owever, because OHS iled todemosate that te bih cericate was idepedent and ot a dect result o the home raid,ad thus ail to meet is burden o proo

r he oter evidece proered by OHS, one o it has bee show to be ee o thetait o he eegious Fourt Amedment violatios at e Respondents home OS has notaged at the 2 1 3 or -2 1 5c constite independetly acquired evidece

B Use of Ide Evdece

a relat agment, the goveent claims that it may inoduce the birth certicatebecause it was obtaied thou the use o idetity evdence, which is ever suppressibleLopezMedoza, 468 US at 03 9 While it is tre that a person' s idetiy is ot suppressible,Respondent does ot seek to suppress the basic ct that he is Miguel xpec Chtay he Secod

Circuit has not dened identit evidence," but other circuits have made cle that is it simplyevidece establising wo a person is See Uited Sttesv FariasGozez, 556 F3d 1 18 1 ,1 1 8 ( 1 1 th Cir 2009) (suppression o all evidence would peit a dedant to hide who heis"); nited States v GuzmaBo, 2 F 3d 420, 421 (9th Cir 1 994) (aing suppression oal the deedts statemets except te intial admissio o his ame") The otion thatidetiy is ot suppressible is primarily a jusdictional docrine, meant to keep individuals omclaiming that they cannot even be smoed to cort because they were ucostiutioallyaested Lopez-endoza 468 US at 1 039-40; see aso Farias-Gonzalez, 556 F3d at 1 1 85( 1 1 th Cir 2009) (aeeig tat thepez-edoza Cou was addressing a jurisdictioalcallege") Here, it is undisputed tat the Respodent as been physically present dadmitted his ame at every hearig

OS has asserted tat identity evidence" encompasses much more th a persosphysical presece ad ame he Cou is unaware o y case om the Board, Secod Cicuit,or Supreme Cout hat holds that identity" acally means proo o place o bih, names opets, umber and es o sibligs, or other broad categories o evidece, suc as those

7 DH has aso not submttd dnc on how t obtand th dntcaton cards n xhbts and 5,although DH dd not xplctl clam ths xhbts as proof of anag o aod a conson n th nt of anappeal th Court does not nd an of th gots dnc admssbl as proof of alnag

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.

otaied o the -23 ad Reord of Swo Statemet t the Cou is uaware of ayfederal out tat has ntereted he done this broadly ad DHSs breg does not providesuppo r ts asseo The Ninth Ciruit i GuaBno speially delined to suppresshe defedat's admsso of hs ame we suppressig te rest of s statements iludig hsplae ofbith as t o a ilegal aest 27 F3d at41 This s onsistet with a view thatidey evdee s nherently dierent om other kids of evidene" stead ofDHS's vewwhi oates detity evidene wih evdee of alenage and removabity United States vDe Toro Gudno 376 F3d 9971001 (9th Cir 04 see Matter of Sadova, 1 7 &N De 7079 (BIA 1 979 If vially ay bioaphial satemets by respondents were osderidetity evdee" the done woud beome the exeptio hat deats he rle Suh aapproah would seriously undermie Almeidamaral and the possibilty of suppresso i theSeod Crt wh ts Cot has neiter the power nor the desre to do

Aside om these probems the Cour has no proof that OHS atualy aquired the birhertiate oly through the use of idetity evidee as opposed to though the use of al theinatio it gahered om he i legal aest Ths is beause as disussed reatedly DHS

deied to submit ay evidee of how d whe the birh ertiate was obtaied despite heCourt' s diret requests The Cout nds that the aeged bi ertate is ot suietyatteuated or ndepedet om e ostitutional violatios i his ae so as to be ee of thetait of il legalty n additio DHS did ot show tat it was obtaned only throug osuppressble detit" evidee Aordngly he Court wll suppress Exhbt40 aogwth the rest of the goveent's evdee.

IV. CONCLUSION

ligt of the regoig he lowing orders sa be entered:

ORDERS

IT IS HEREBY OERED hat he Respondet's oton to Suppress be GRANTED

IT IS FURTER ORDERE hat remova proeedings aganst he espondet beTERMINATED WITOT PREJDICE.

1 Dat -

8 e Sixth Circuit h on one occasion considered a criminal dendant's date o f bi to be non-suppressibeidenty evidence, which was used along w his ame only to a standard poice check and nd an outstandingwaant United State v Navaro-Chalan, 420 F.3d 581 (6th Cir 2005). The Cou expresses no opinion on thisview but notes that the Respondent not sought to suppress his date of birth

Miguel Augusto Ixpec-Chitay, A097 535 400 (BIA Sept. 16, 2013)

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