his home seven armed ice officers busted into the home without a warrant or consents the next thing mr bachus knew i don't i don't know that we have really any evidence that it was without consent because client's statement about that it does not seem to me that he would have had personal knowledge because he's in bed well your honor that is the issue in this consent was given or not well he would not have had personal knowledge isn't that right your honor if he didn't have he did not personally observe the ice officers entered his home without consent but that is not the same as personal knowledge at any rate at this whatever he would know would have to be by hearsay when well possibly it's possible that he could have overheard what was happening and know in that regard but even if it were hearsay and he had been told by his brother  who was at the door at the time hearsay is admissible in immigration courts and always has been at this stage of proceedings and this is the agency's error at this stage of proceedings i thought the board requires to receive an evidentiary hearing on a motion to suppress evidence that an individual must establish a promise facia case with the sworn statement of persons having personal knowledge of the facts again did have personal knowledge she had personal personal knowledge is personal information he had information about how the ice officers and toured his home the agency was required to take the affidavit that he submitted as true and if those facts could make out a prima facia case for a fourth amendment violation then he should have been given the opportunity to support his affidavit with  testimony at which point he could as could have presented witnesses the government could have presented their witnesses so all were asked to agree that there's at least a difference of opinion they are among the circuits  courts with regard to what personal knowledge is whereas some courts like the one you cited from the second circuit believe that personal knowledge consists of more than just what you observe with your own says but there are other courts that would require personal knowledge to be based on what you yourself have observed with your own sons i have not come across any board of immigration appeals or circuit court case in the immigration context which required personal observation taking it out of the immigration context are you aware of those cases yes your honor some of them again the immigration context is a little bit different because hearsay is admissible the me and i was i want to make sure we don't conflate what is required to get a hearing with what is laid or going to be admissible in the hearing do you understand there could be two different standards involved at the two different steps in the procedure i do your honor but this is a very preliminary stage of the proceedings all that we were asking and all that we're asking here today is that the case go back so that mr botches has an opportunity to have a hearing and make out a prima facia case as you mentioned the second circuit does have a case directly on point in the immigration context and found that personal observation was not required and the court there found that suppression was warranted in facts that were very similar to the facts here and so they found not only that a fourth amendment violation occurred that there was no consent even though neither the petitioner nor his witness had personally observed the ice officers to enter but as i mentioned here's the problem i don't see where you knowledge that would show that there was a lack of well the affidavit did say that his brother cracked open the door and that the ice officers forced their way in without consents he does have personal knowledge and at that stage of proceedings he would have had to see that which he could not i'm not sure that he would have had such different from the banging on the door that he could have heard in the affidavit and the second circuit  affidavit says that he forced his way but doesn't that's not something he could have seen your honor as i said previously even if he obtained that information from his brother hearsay is that specifically that no your honor but the board of immigration appeals has only rejected or has only not permitted and evidentiary hearing to take place when the lawyer submitted  only where the response with it did not submit an affidavit or no affidavit was submitted so the only requirement at this stage a requirement that mr botching this satisfied was that he submitted an affidavit with personal knowledge about what occurred again personal knowledge means information and it was defined in the second circuit case as information known to the petitioner quired by first hand observation not that's i mean that's the basic definition of personal knowledge isn't it not according not according to the second circuit i mean the second circuit was quite clear that the fact that  the petitioner had not personally observed the ice officers enter the home and nor had his witness the second circuit found that that did not mean that he did not have personal knowledge of the facts and in that case the second circuit decided that the evidence should be suppressed and i would add the second circuit found an egregious violation of the fourth amendment in circumstances very similar to our case where the ice officers came to the home before dawn entered without a warrant or consents dragged the petitioner into his living room and interrogated him in our case it's even worse because our client mr bachus did not give the agent's permission to enter his a hearing that's right your honor we're just asking for a hearing so that mr botches can support his testimony with evidence we're not saying that the burden now shifts to the government we just want him to have a hearing so that he can support his motion to suppress i just wanted to add that we also have a fifth amendment arguments here as well as arguments regarding regulatory violations the agency found that there was no fifth amendment violation in this case but the circumstances show that mr bob just says statements could not have been voluntary the officers created a coercive environment in this case when they busted into the home armed they burst into his bedroom yelled that he was under arrest and pulled him half naked into the living room did not even give him an opportunity to get dressed and then interrogated him about his about his alien edge a reasonable person in that situation would not a felt free not to answer the questions so we also make the argument that there was a fifth amendment violation here and then finally there were three regulatory violations the board of immigration appeals have found that rug removal proceedings must be terminated so this is little bit different from the motion to suppress that rule proceedings must be terminated when a regulatory violation occurs provided that the regulation serves a purpose for the benefit of their spondon and the violation prejudiced the respondent and both factors apply here  the regulations that were violated including a regulation requiring a warrant or consents was also a regulation requiring reasonable suspicion that the person is violating the immigration laws morning your honour's manual collapse of the respond in this case the attorney general this case is about the suppression of evidence in the civil immigration proceeding the court is obviously conversant with the standers required to get suppression in this context knowledge that there was a constitutional violation and that beyond that there was agreed his conduct sufficient that those two together would would call for an evidentiary hearing to back up what he's saying is that david as judge prior noted his affidavit taken as true confirms that he could not have seen how the entry was what about heard i mean he could have heard it could nest i mean for example he says my brother's wife told true ok well say he heard anything he said the only thing he said he heard personally was the knocking at the door that's the last thing he personally observed with his senses is if everything else was  just one i'm sorry it it's not hearsay objection you know how we got that information well in that hearsay objection i mean you're saying he doesn't know those by personal knowledge testify under penalty of perjury that that i have personal knowledge of these facts i'm laying out for you in my affidavit and he simply does not taking his affidavit is true because he was behind closed doors in his bedroom and in fact he says he different things right correct and at this phase of the proceedings hearsay doesn't cut it because if a suppression hearing is granted based in this affidavit then he he does he cannot testify of his personal knowledge  board both noted here is that we're going to discount that part of your affidavit where you test you relate events that were out of your your hearing or your observation because that's not competent evidence of what happened but how do you know it was out of his hearing i'm taking what he said is true that he would know you're taking part of what he said as you're saying he was asleep i don't i don't know i mean obviously he was sleep at five thirty when they knocked on the front door but i mean it seems to me that that could have woken him up and then he's recounting what he heard but i mean the the fact is nobody ever asked you're out you're out of this was affidavits from a sister now we did not we have the i two thirteen which recounts the circumstances of the entry so the burden is different on him absolutely he is requesting from the court i have hits his burden to show  immigration judge that if that took place that causes and that word reaches are going forward with a new declaration any i'm sorry that he have come forward with a more specific declaration to show that he had some kind of personal now absolutely yuron it just as to what are your point  judge martin he said he heard the knocks and dory he didn't say he heard anything else he could have easily said and then i heard my sister say whatever but he didn't and both i think it's telling that both the immigration judge and the board said we find a significant number one that these you did not personally observed but number two that you have not explained why your brother or sister in law didn't provide you with an affidavit at this critical stage of the proceeding because he's he's got to make his best showing at the prime aphasia stays that if a hearing is held that he can prove all these things through testimony and told us the purpose for this procedure so that before we gear up the whole mechanism of having a hearing on the motion to suppress the judge down below has to make sure that if what this a fiat says is true then it would support the requested correct precisely that's a stringent standard because you know even if even if his brother or sister told me things they didn't tell me these things under oath we don't know if they're willing to say these things under  oath and i don't understand how how even if these things were told to him by his family members i mean that's not personal knowledge if i tell you what i have a dinner last night that doesn't give you personal knowledge of that all you know is that i told you that we look for the penalty of perjury requirement before we gear up for a hearing on the motion to suppress exactly your eye because as the is supreme court noted lopez mendoza the immigration system is so it's got a it's a high bar that's been set at this point civil system not a not a criminal decisively your honor this is a civil proceeding not a criminal proceeding and that's why lopez and did not apply that in the civil context i would point out your honor to your point about observation at the second circuit case as perhaps i misread it but i understood that case that was a suppression hearing and the error in that case by the agency was that he saw the front door of his multi unit building close shut and it was locked he had a you didn't within there and the next thing he knows they're banging on his door so that shifted the burden to the government to show that they entered the building lawfully and the remainder of the case for further testimony on that point they did not do in an egregious circumstance let me ask you about the scope of the search is it your position that  the immigration officers were in the front door they had free rein to go anywhere in the house they wanted to go no ma'am no that's and that's not what happened here we don't know exactly what happened go into complete at bay what happened here was they led three occupants of the apartment into the living room and asked them questions and they were there looking for another individual who who used that as his address they were looking for him i don't know what the content of the questions were but i would point out that there was no search here i mean did the female officer go in the room with the children do you know want to go over them yes ok so how do you know that exists i mean but you're accepting parts of the affidavit and not other parts of the affidavit and in that right personal knowledge which is the required level of well i mean you say he was asleep so how could he have known where the where the female officer earlier that you accepted that part of the affidavit i'm sorry but i meant to say that david part of me it's in the affidavit as opposed to the i two thirteen all right well what about permission to come into his is when they open his bedroom door does he consent to that there's no evidence that he did know is there any evidence that the owners of the house consented to that no there isn't i would point at this point the board made an alternative finding here to get egregious circumstances sufficient for suppression you have to show a constitutional violation and surrounding egregious circumstances a constitution violation standing alone is not enough in this context to require suppression and in fact even a violation which involves the privacy of the home is not sufficient so here the board made an alternative finding that even assuming  that the officers entered without consent entered the apartment without consent that and assuming that's a fortnight violation they look at these other circumstances of the case which were what happened after they got in i think you just agree that they if that interests into the front door does not equate consent to search the entire house or you with me that far if it's a forced entry yes it was not considered entry yes no if it's a consent if the woman opens the door and the officers walk in the front door i agree with you that would be consent under eleventh circuit law but i do not agree that that would be consent to search the whole house do we do you disagree with me about oh ok so you agree that if they did i mean there's nowhere on this record that we know that the officers got consent to search the entire house this record does not reflect that's correct ok they're also there's also no evidence they searched the house at all well they they came into the bedroom where he was behind a closed door to the night and they escorted him for the living room ok by premises i don't know that for a fact your honor he appears to be living in the premises he hasn't said that he is the owner of the premises there's no record information to that effect now so the in the burdens on him to show that there was no consent there is and that it has no burden his his he's seeking suppression in a civil proceeding that the proceeding that's been set up is that he must convince the immigration court that there were not just a violation of his constitutional rights but also egregious surrounding circumstances that are that are sufficiently bad that the suppression hearing is call for to get more testimony on this whether what the immigration or but the courts who have looked at this is and have have gone beyond it and said they have mixed food that either right second third fourth that but what i'm asking you if ya understand some circuits have have have assumed at least that that that can be the case what i'm asking though is is that what the immigration courts do to you is that they assume that that would satisfy the standard that's a good point yes yes that's what they've been following yes they've been following that mr botches did have the burden to make a prima facia case the standard at this stage of proceedings where his case left off was very low the burden was low all he needed to do was submit a sworn affidavit with facts that could make out a basis for a fourth amendment violation or for exclusion of the evidence and that is what he did he was entitled to a hearing simply so that he could provide evidence to provide additional testimony to the government's point that he didn't provide witnesses or other affidavits he wasn't required to at this stage of proceeding he's got to give  enough information which he has personal knowledge to satisfy their standard and they concluded he had all right he was presence and he did personally during the incident and he did personally experience it and did personally observe most of the things that he alleged in the affidavit to not the consent that's not that's not on the record whether he personally your honor in could so jay the second circuit stated we reject the idea is determination that's a good use failure to personally observe the officers entry of the home rendered him incapable of establishing a prima facia case for suppre and this was after he had a hearing all that we are asking for here is that he have an opportunity to have a hearing and present additional testimony and witnesses to make out the prima facia case in addition the record is very clear the affidavit was very clear that the ice officers busted into his room without permission and consent even if given would not necessarily have extended to the whole home state but give enough to establish that he would would be able to show that there was a violation he hasn't he hasn't said anything about who would have had the authority to grant or not grant consent to come into that room and whether or not that in fact did happen your honor the the board of immigration appeals the agency in this case decided that he could not case simply because he did not observe the ice officers entering the home it didn't make the decision based on the facts that he couldn't have you know ignore it nor did he say anything in the affidavit to suggest that that was my private space i was renting it out i would have they would have had to get my permission there's nothing like that either and it's his birthday he alleged that the ice officers entered without consent we just went through that notion that now we're talking about it i mean you've got a fallback position you want to rely upon that was never asserted in the affidavit is my point isn't that right no your honor why not i'm sorry could you repeat the question why is that not right if you repeat the statements so you've got a fallback position that you want to rely on that was never asserted in the affidavit you talk about the scope of this or you know i'm talking about whether there was consent to enter the room and whether there was a lack of consent to enter the room that's not really a fallback argument from whether there was consent to enter the premises generally well your honor he he it was within his knowledge that there was no consent to enter so but we know that the that they entered the home with that entered the room without his consent that was in the