you may proceed thank you good morning may please the court and over for the petitioners i'm here today to ask that my clients get a hearing in immigration court so they can establish the facts to suppress the evidence in this case the respond the petitioners in this case submitted an affidavit alleging that there was no warrant no consent and no lawful permission for the u s border patrol to enter their residence seize them and arrest three out of the four people in the residence the government the department of homeland security asserts that there was a new york state search warrant by the new york state police to enter the residence in our most i can't find  a warrant at all it would more likely have been an arrest warrant the action took place at nine thirty at night the officers are focused on an individual not on contraband or drugs or weapons or papers or anything else the arrest warrant it was a search warrant i to thirteen alleges it was a search warrant i'm just saying in the context of new york state law i mean york state troopers would have needed to go to a new york court say that was a car stop this is a resident does it doesn't make sense that state troopers would bring border patrol folks to translate to execute a search warrant it would be interesting to know which documents they would like them to translate when they got to the residence for the documents maybe what were part of the search warrant i don't know if it doesn't make a lot of sense first your honor because translate implies a document t to take him into custody yes and then the other things that make that more likely in their affidavit they describe knocking at the window and lights like vehicle police lights and police demanding to be able to come into the house th that also can textually sounds much more like an arrest charged activity sex crime mostly i think that was the underlying indication i have a hard time understand why they want to search for it it was confusing from my perspective as well but that's what what they hear because it's not of their are correct and since there was never a hearing even for the petitioners to testify or call witnesses for their side the there was no opportunity to develop the record to get any additional information and without more information about the individual the new york state police were looking for it's very difficult from a petitioner's perspective to try to go find a search warrant that may never have existed we're not entitled to discovery there is no requirement that the government come forward with evidence that might help an alien or respondent so if there was an error in the eye to thirteen and it wasn't a search warrant they have no obligation to tell me that or to even determine that because there is no discovery provisions like there is in a criminal case so for if we can't get into a courtroom to get an opportunity for a hearing we can't get to any of those facts we can't get them into the record for the court or for the board or for anyone else to look at a case and in regards to whether or not the respondents affidavit presented sufficient facts to establish it was egregious we would argue that it was a home that it was an intentional nighttime event that there are a number of things that make it appear pretext l we're going just as translators the new york state police finish their search for the individual determine he's not there and then the border patrol he mentions hispanic migrants yes it does indication that they were going not to look for illegal aliens but hispanic migrants is another factor in the in the establishment of the three that's for a bottle that you will hear from the government yes the exclusionary rule can apply in immigration proceedings provided that the alien demonstrates evidence of egregious circumstances that occurred in the collection of that evidence and egregiousness requires more than what we have here that require  conduct that quote shocks the conscious that was from maldonado and that has been echoed throughout this court's cases on point what we have here is a warrant pursuits that i to thirteen which is presumably reliable record you know where i with that the region circumstances whether or not it was a search warrant or an arrest warrant if they show up and say we have a search warrant and it really wasn't a search warrant would that be egregious nice this could be a little bit of a game of  telephone to thirteen is indicating that a warrant was president indicates a felony search warrant could be a felony arrest warrant i've never heard of a search warrant described as a felony search warrant i don't act that could just you don't have it and that aren't part of the problem as we we don't have it in the record we don't know what it says i mean another thing of concern is it doesn't seem typical to me and i don't know when this is something that could be explored at a hankering for state troopers to call in border patrol to translate to execute a search warrant i just don't know that that makes any sense that has been standard practice for many years for new york state police and another jurisdictions around the country to looking for undocumented aliens under the guise of executing a search warrant if that is not kind of out appropriate if that kind of deception is present that could be a problem this legal this process that kind of deception is present with that need to test a shockingly conscious it's a question in this case as far as i can discern of efficient execution of a warrant whether it's a search warrant or arrest warrant officers were aware that yes known hispanic migrants were present at this location and that translation or interpretation might be necessary that's that's just an efficient use of resources this occurred in clyde new york which is somewhat of a remote area between rochester  syracuse it's not some place where just at any hour you can find an interpreter ready to come help you in this instance and it's also common practice for police executing a warrant of any kind to conduct a search security sweep and a mass anyone present for the safety of the officers there's no question the police officers entitle to avoid danger where possible those are that's that's true i don't just get it but this is a lot like oh it's in some ways that the question is whether they were given permission to commit and the aliases submitted the affidavit saying that they didn't consent to it the search warrant we don't know what it says or the war what we don't know what it says i don't know of an arrest warrant maybe eight in a while since i was in state courts but that they could just break the break down the door and if it were a search warrant the search warrant would be particular saying they didn't consent i don't see how how i don't see how we escape our prior decision this is a this is a late nights entry now if you if there is a search warrant or there's a war then know a lot of the arguments that you have to make about the legitimacy of you know the fact that the border patrol can be there or rice agents can be there are all go to whether it is or isn't egregious but that gets developed in a hearing as opposed to kind of prognosticating on what was or what did or didn't happen and so it just seems to me that once you've got an allegation of no consent and you've got a break and you've got officers in residence where there's clear fourth amendment protections at night you're when well beyond just consent i know where it went that's your honor drafter that opinion it was a nighttime warrantless raid at four thirty in the morning exactly right exactly right but but as you and i both know egregiousness is a combination of factors in the question there have been a hearing to direct i we would have to rule as a matter of law the raid what was it ten o'clock and they began at roughly nine twenty four and they knocked on the door at roughly ten pm i say so it's at ten o'clock at night on it looking for an individual to arrest him for a state crime in which border patrol comes along for it to be interpreters probably probably ok in which they go into the home for which these individuals say no  not i think i think an officer of the government going into someone's home at ten o'clock at night without consent is a great and so that's a question i mean there are other things i grieved with you in in the other case that make it more egregious but the question is should testifying to second hand as to what it was or wasn't he called it a search warrant and i'm skeptical that it was a search warrant but that's but i'm not allowed that's based on my own prior experience in life and that's not how i should decide this actual facts do they rise to the level of a grievous this goes well beyond the facts of this case your i think you're right about that the question is does this get closer and the the point of that is that lopez mendoza the supreme court indicated in lopez mendoza that for the fourth amendment exclusionary rule to apply in immigration cases there must be egregious circumstances and the reason for that is because of the nature of immigration proceedings as civil rather than criminal and the need for streamlined and efficient proceedings act here ings are not a given very accurate state and this court again in coaching indicated that it is indeed a case by case inquiry but for egregiousness to have occurred it requires something more it requires conscious shocking events and that's simply not present here you have a warrant whether search warrant or an arrest warrant or you have the possibility of consent rafael in their affidavit indicated it indicates that he opened the door at least it was at a much more reasonable hour cochair which was at four thirty in the morning there was not coercion here they were not handcuffed until after they indicated they were illegally present they were not held at gunpoint the police were seeking a fugitive wanted for rape with that lived with these individuals until a week prior asking you questions of that individual certainly a reasonable conduct by the police and meeting translation assistance to accomplish that and certainly as a logical act further petitioners can see that it is reasonable for the officers to do to conduct this investigation that's been repeated consistently so ultimately the question is whether or not this was an egregious circumstance and the facts suggest thank you understand so i don't take i don't take umbrage with anything to just said about between the new york state police and u s border patrol and in fact i would assert that if an additional submission was made there would be a specific policy that they not call them to act as interpreters or translators for this purpose and that the new york state police as an independent contractor provide that service not that they couldn't but that that's not the standard policy the the i think the critical part from our perspective is if you can't get into the courtroom it makes it really difficult to make the egregious argument because we don't have other ways to get evidence into the record beyond that hearing the the the evidence that we would need to have more in regards to whether the search warrant was it an arrest warrant what what happened could only really be developed in the context of a hearing i would also ask the court to consider that the the in the eye to thirteen for what it's worth it describes it as a two part process the new york state police determined he wasn't there and they were done and then the border patrol started to ask questions and there were actually  rifles the affidavit of the petitioner in support of the motion to suppress indicates that there were rifles now this is only pointed at him but that the officers were all armed thank you thank