and proceed with the next argument which rodrigues recessions his race during retaliatory indiscriminate raid targeting the new haven latino community there are three primary reasons here for remand the first is that mr rodriguez was unconstitutionally sees based on his latino appearance rendering the seizure an egregious fourth minute violation second the rain sought to punish the city of new haven for exercising that he appeared at a place where a raid was in progress driving the car a person who was a person of interest in that investigation because he was the brother of a multi unit condo that also served other multi use buildings that's it j two zero three and there's a photograph it three seven seven at the time he arrived all that ice agents knew was that he was a latino man arriving there and they immediately seized it and they said who are you  that is possible your honor but when you have any identification of his own and he explain what he was doing there yes well that was after the seizure order boy is that a seizure he shows up there if it is a seizure is that  something that when you've got a raid in progress and somebody suddenly appears at this early morning hour is it not at least reasonable for the officers to ask who are you and what are you doing here of anybody who answers your honor to the first the i how they were treated who were not latino on the record your honor and so why why aren't we in a situation where anyone who shows up at that point it's reasonable for the officers to say what are you doing here we are you there's nothing in the record that would suggest that they were taking safety precautions because there's nothing suggesting they frisk miss rodriguez asked and so i think that safety somebody shows up at the scene of this raid and when the and the agents are out there right they're out there for a reason they're not up in the in the apartment with the person who's being interrogated right yes and so when somebody comes up in a car to that location and the agents are sort of at the perimeter of that location what is a credit is the answer to that that there is nothing unconstitutional about asking that question and now we're going on to what probably cause does or doesn't develop from the answers that were given questions would be permissible your honor but not if they amount to a seizure without reasonable suspicion here and there's nothing about and the i do recognize this inside the manual corrado and that sort of case which recognizes that simply approaching immigration enforcement officers would mean that essentially any set of facts is consistent with a reasonable suspicion which just can't be and that's cited by the immigration and if there was not a reasonable suspicion is the questioning of somebody under these circumstances where there is a close call as to whether it amounts to a seizure or not an egregious violation that state your honor the i j a should have taken the evidence the light most favorable to us which they did not and that's an independent reason to remand your honor wait at what stage this is not the stage of the f a day that this is the stage of he's already giving testimony right yes your honor undercuts a j we understand that both at profiling in general work that there was a violation of  after mr rodriguez was seized and then arrested so before you have immigration officers engaging in an immigration sweep in which they are arresting latino men based on their latino appearance primarily that's in the uk a pina declaration of three ninety one the  declaration a three eighty eight and the door you make to get information from government agencies to actually be able to calculate whether there was discriminatory because this is obviously one small around thirty six people arrested so much larger operation this is obviously very controversial situation in new haven i guess my question is you have to prove that there's violation whatevers did you make to get the information from the government so that you could actually explore in detail whether in fact it was russian profiling and what was the government's response well the government has never provided any evidence about the recount of this restaurant or so initially mr august submitted an affidavit and the immigration judge moved on to a full evidentiary hearing all of the evidence supported was independently gathered by misread regas and the government never carr request to actually have a deposition of the agent that in light of the fact that the i two thirteen was essentially removed so that you don't have any evidence in regard to what exactly happened here so then what were made to actually to oppose the agents to be able to show that there were in fact was this discriminatory and racial profiling or rages and i'm not sure efforts were taken to act cannot allege facts that are outside of his personal knowledge that would include improper motivations on the part of government officers as well i'm just puzzled at what it means that at a hearing when somebody gives testimony whatever he says has to be taken in the light most favorable to himself well not everything your honor just reasonable inferences should be drawn in his favor and go to jay this court found that the respondents testimony wasn't a model of clarity and had some minor contradictions and yet still found that he had made out a prima facie case of an egregious constitutional violation there but it is more than a prima facie case since there was nothing on the other side you're saying he went and we should hold that this was outrageous behavior based on this record well you could remand your honor at what point at which point under the burden shifting framer of the government would they be entitled to call agents or introduce testimony providing a neutral reason for the arrest at which point the judge could then evaluates the record and all evidence they work that way to summary judgment proceeding where we're trying to decide whether to have a trial and here that gordon shifting works with when somebody submit an affidavit are we going to go forward and have a hearing but the judge said ok we'll have the hear now what that's where we are now right yes your honor but we're supposed to say it looks outrageous to us precisely why not yes precisely on the record that was made on which you have the burden yes your honor but again at the bears the burden to respond to that by introducing additional evidence or testimony from officers who were at the scene good morning please the court my name is just one right i'm here on behalf of respondent denied state's tiny general as we argued in our brief in the second petition for review because there are two petitions for review before the court today the court need not reach any of the suppression issues because in our view that the issues are minute petitioner has independently and affirmatively submitted into the record before the board of immigration appeals below independent evidence of his alien age that he is in issues in the first petition for a view now normally that would be something that the agency would decide but under the remained is futile exception to the cherry doctrine and we asked the court in this case in order to put an to the lengthy procedural history why would we why would we want to decide for ourselves the question of whether a u v and what you call it privileged in a sense and can't be used against him in this proceeding is i mean there are there are certainly some applications that can be made  application if we sent this back to the b a a to decide whether this is admissible evidence against him at this proceeding and they decided it was or was not wouldn't you be here appeal at some point saying we have to defer to that if it's reasonable normally your honor but in this instance there is no question of admissibility because the government is not the one introducing the evidence for the purpose of the question we're really talking about yes but i agree that there are certain confidentiality provisions that protect you but like any confidentiality provision those provisions can be waived by the petitioner and in this case by a usual case yes but as and this is consistent with the board's decision on his motion to reopen pursue a spontaneous opening the issue would not usually come up before the image of the board of immigration appeals or the immigration court necessarily because as the board said these are completed proceedings and you're asking for sue a spontaneous opening and giving as evidence of why soon as pantera openings is a good idea you're giving us evidence that you filed before us c i s that is something that the board of immigration appeals has no jurisdiction over it had no role in the education of the visa and so there was no reason for a petition or to submit a copy of the or two even pursue the u visa before the board of immigration willing that this is a situation like some others that come before us in which the applicant has some basis for proceeding to think that he can proceed and regularize the status in some way and they're arguing rightly or wrongly weather related lee or not or whether it's appropriate the state they're arguing that this is the kind of case in which the b a a would under some circumstances at least states and allow that to go forward right in this case no your honor as the board explained in its decision there are no exceptional circumstances for it to reopen a closed removal proceeding for the purpose allowing that may be correct but you're acting as if i thought you were trying to say it's like gratuitous they just sort of show up at the v a and wave their confidentiality but that's not what they did they made a particular kind of application to the board for a kind of relief that the board might have power to give it might be perfectly fine for the board to say no but you are asking us to decide that by doing that he has mooted all issues with respect to citizenship they're arguing no no no because that shouldn't be used in this way and you're asking us to decide that now if we decide that against you hasn't the government lost an opportunity to have the expertise of the brought to bear on what that if you will i'm not asking the court to decide that particular issue i'm asking the court to decide that it's not based on that evidence but if the court says not only if that evidence is usable for that purpose under the futility well i understand your point but no if the court is inclined to decide that issue against the government then we would actually yes request that the court and instead for the immigrants for the for the board for the reasons that you say that you've got decided your way we can decide and that's ok even if the b s a might have decided differently and their expertise and we decided against you then we better invoke their expertise and give you another bottle no no your honor i think it just to give the factors that we usually do that we would otherwise do because the because the proceedings closed but there are some decisions that say that doesn't matter and i'm and my question is why should matter just because the first petition is closed administratively why shouldn't someone who is seeking reopening get the same benefit of those three factors that everybody else does but just because the day after the proceeding a request is made why should that matter because the the difference i believe is that in this case the time and number of the time and number of hours of the time bar at least applies my question is why why should the you know what the fortuity of the closing of the proceeding matter as to foreclosing the consideration of those three factors by the what's the reason for it the reason is that the there's a look at and the reason why we were trying to figure a route here why i should make a difference whether the the administrative proceeding is closed or not but you don't get the benefit of the three factors being weighed by the that's my question why going to be a suicide yes that's correct your honor and that's what was at issue here and that's what the board decided on is based on exceptional circumstances not based on sanchez it was purely a discretionary denial of su testify against the burglar in new york and then the reason for the continuance well i think i'm going to get my you why shouldn't why should a b i at least apply those factors now maybe they decide we waive the three factors and we think we're not going to reopen still here they said we're not going to apply those factors because the proceedings closed and that's the reason why are because they are closed that is why you have matters right because because it's a closed proceeding the finality is something that should be taken seriously and should only be disturbed for a very serious reasons now the motion for a continuance that's different because the can to the removal proceedings are still ongoing and so the weighing of those factors are more relevant there's no there's no  that initially at that first hearing the petitioner was seeking information to address the whole question of racial profiling because this obviously this requirement to show that there is racial profiling has sin for mation about this whole operation but that has been foreclosed constantly on the ability to ask questions about w really happened here and that obviously would involve questioning the officers who were engaged in the arrest in the first place and to have a today's date we've never been violation but one that is egregious and under mild or not and the second circuit you can only consider the affidavit and testimony in determining whether petitioner has met his prime official burden there are two parties involved petitioner and the arresting officers petitioner has to come forward with his version there is no one else who can tell who can who can testify as to his as to what happened to him and why he believes he was mistreated or why his constitutional petitioner has some limited information what happened at the time of the arrest but the reality is this was a part of a much larger operation thirty six people arrested obviously there were civil lawsuits against the h s result of this particular case there must be or there could very well be significant information about racial bias on the part of  the agents etc and it would seem to me that logically if you're part of this much larger operation that both sides should be able to have witnesses in particular the agents come in and testify as to exactly whether they were engaged in racial profiling whether they were engaged in the conduct and the fact is from day one the petitioner in this case was prevented from asking those fundamental questions again you know the government doesn't believe he was prevented your honor the burden never shifted d n a tests has the discretion to decide what evidence it wants to submit to prove its case but the burden never shifted to d a just because the immigration judge repeatedly found the petitioner never met his prime efficient burden ever made out a presentation case he never met his burden of proof  extra affidavits and other evidence to mount a broad based challenge to that was more appropriate in district court certainly but in the context of his removal proceedings that was not an appropriate method for it there was an ongoing immigration enforcement action two agents were outside everyone else was inside he knew that there were two he said there were he knew there were police there because his boss had called him and said come over and give me my card my documents are in there the police are here i need them he knew there was the police were present there regardless he drove there without a driver's license and he saw the two men who were waiting at the parking lot and he basically inserted himself into the ongoing immigration enforcement action it would have been negligent for the agents not to secure the premises and not question him not approach him when he first came on to the scene and asked who he was and what he was doing there and so his his testimony and his affidavit there's nothing in there about use of force about brandishing of weapons there's nothing in there about racial profiling all he said is i look hispanic but that's not sufficient if the agents had a valid reason for pajamas were basically a shorts and a t shirt that he wore to bed his affidavit says he has his testimony was that the agents searched the car and then arrested him or handcuffed him  procedure there was a prior stay motion that was denied by this court i didn't see any outstanding stay motion we need to address and i'm wrong about that and the second question is is the government intending to remove him furthermore this court and co to have with this whole thing and i think the reason why the courts have been reluctant to not just apply the exclusionary rule in these proceedings in these types of proceedings is that the only thing that is evidentiary here that is to be suppressed is who this gentleman is and what his citizenship is right but no your honor we are the other evidence that's being used against  seized from him at that time yes your honor as the immigration judge found the birth certificate to the government produced was fruit of that right in other words it's his identity right what matter look your client is a citizen of his initial arrest what you are asking is that not that he be like automatically entitled to stay in the united states forever right what you are asking is that this proceeding be sent back without any ability of the government to prove that he is not as is in the united states and then like he can go out on the street until such time as they go back well will they ever be able to get a birth certificate  identity evidence would consist in the name but not the further information that the government used to get the birth certificate which include parents names yeah i got it so they're never saw what happens next is he like for ever i mean there's nothing they can do at this point is there that is not the fruit of the fact that they know who he is and they have all this information about him how are they how would they ever be in a position to prove his alien age if this court  go free with a head start at that point right and that's kind of what is happening here is that not we believe that the government would actually have the opportunity to bear its burden to show that the arrest was lawful on remand before there was any final adjudication of suppression so here we have the unusual situation as judge sessions pointed out that the government has withdrawn its only account the arrest and hearings before the immigration judge refused to put on any more evidence right but the relief that's being requested ultimately is to suppress the evidence of who he is and what his citizenship status is that's the relief that's being requested we are requesting the suppression of any statements in the birth certificate we think under almost all moral because there was a grossly improper and if that happens then what the you know if the government could provide truly independent evidence from the arrests how will they ever be able to do if by some accident some other immigration officer who has no knowledge of any of this comes upon mr rodriguez that officer might develop some new case so long as nobody investigating that case links it up with this one but other than that he's free to go his own way we do believe that under pretense and if the government doesn't bear its burden the evidence should be suppressed and if they have no independent evidence then yes moreover his you visa application in which he says that he is not a citizen of the united states that your argument is should not be taken into account either yes your honor we believe that under th court's decision kawhi lynn it will not uphold an agency decision even based on evidence in the record if it was not before the agency at the time and isn't and after all isn't the application itself a kind of fruit because maybe he would never have bothered to apply for it and he certainly wouldn't have bothered to bring it to the attention of the department of homeland security rather than the independent u s c i s if it weren't for this arrest that's possible your honor and that would be one of the questions that would have to be resolved below if the government did seek to reopen in order for addressing whether the u s should be introduced as evidence in all of this is because this was not merely a fourth amendment violation because the exclusionary rule as such does not apply in these proceedings but was an  violation absolutely your honor and we believe you know they had the right to ask him questions however they did not have the right to seize him initially they would have required reasonable suspicion specifically that he was unlawfully present and whether it's a seizure or not is a very close question is it not i mean as you're agreeing i think you're agreeing that if the officer just walked up to him and said by the way who are you and what are you doing here that would not be lawful we believe that here would answer yes or no to something like that are you are you saying they wouldn't weren't authorized to do that are you saying that that would have been ok yes or no i think whatever it is even then i just wonder what he would be authorized to ask him know but they can't sort of forcibly detain him and the issue of whether he was forcibly detained turns on his statement that they sort of came up very close to him and he fel idea was they were authorized to come in ask anyone in that circumstance so why do we think it is based on race if they are authorized to speak to anyone and they speak to anyone he being anyone who happened to show up we  based on the evidence of the raids prior to what occurred really cause somebody else in a different circumstance was detained because somebody said they all look alike i don't care whether he looks like the guy we're looking for just detain then that establishes that notwithstanding that two officers had a perfect right to talk to anyone who came in that their decision to talk to and the reason they had that right is because we're very reasonable thing to do in the circumstances that when they talk to this gentleman this was the proper inferences this was based on his race and they would have let anybody else walk into the building where your honor he was in a large parking lot behind a multi unit building and when he emerged from the vehicle they  immediately us so you know whether or not have been it would not have been appropriate for people for the officers to approach anyone in that parking lot because they had no reason to because there's a large parking lot we believe that they did not have reasonable suspicion that he was unlawfully present in the country at that moment therefore they could have asked him questions at a distance they could have let him know that he was free to leave but he could not i mean as they came too close to him that's what makes it illegal seizure and that's what makes it outrageous that that's what makes it a seizure the lack of re missions that makes it a fourth amendment violation and at the prima facia stage as the court explained in code c j which involves both the affidavit stage and the testimony stage here he's made out a case with reasonable inferences drawn in his in his favor the he was arrested seized initially and then subsequently arrested based on his race judge underhill in a case arising from these raids deborah now found that a sufficient equal protection claim that in pled under the heightened trading standards on the basis that the raid targeted a latino neighborhood that latino caring individuals were arrested that one individual was detained solely based on speaking spanish and being latino appearing and the derogatory comment was made here we think we have much more than was shown india's banal we have not only the comments that were made part was arrest we have agents actually acting on those comments saying they provide some sort of an account they've provided absolutely none and as was true in the pretense of litigation the immigration judge found there were proof issue case had been made and the government refused to put on any evidence as to what occurred in the arrest that warranted suppression so we are simply asking for the government to bear its burden based on that prima facia analysis and finally your question about the what is true that the u visa will not be eliminated if he is deported he does have a u s citizen child in the country and in addition to reenter the country he would