case that ice agents agree just leave violated her fourth amendment rights her fifth amendment rights and ice regulations when they enter her home at five am on june thirtieth two thousand and eight and in making that determination about whether she made out a prima facia case this court must take the statements in her affidavit as true and must draw inferences from that affidavit in her favor and if this court finds that she made out a prima facia case on any one of those issues reports have different definitions of bridges right they do they differ a little bit so the second third and ninth circuit's all have held that agree just violations of the fourth amendment requires suppressing evidence the ninth circuit said at the violation was in bad faith or intentional that's enough the second and third circuits have said it's a tell the of the circumstances test and they've listed a number of factors they take into account we don't have a lot of you do not have a case directly and third circuit test so i've met those here and i should also know i won't speak for governments council but their brief page twenty five listed all those factors noted they'd been cited by the third circuit and leave a ramos and i thought seem to approve of them as the as the test we will see i don't want to speak for government council but the this is the second and third circle of seems like of course the second but i will just note they're listed in his brief as well the second and third circuit's factors they're not exhaustive they're not supposed to the here we have a woman who the door was broken down at five am she's five months pregnant she tells that wearing a night shirt and yet they pointed a gun to her head not just briefly but first when they come in after they put her partner in handcuffs and then later they march gunpoint down the stairs so that's unnecessary and menacing use of force but i certainly your honor and i think there's no question that in a situation in which there appeared to be any danger to the officers then a gun would be necessary here i've cited the jacobs case in the seventh circuit when there's clearly no threat it is an unlawful use of force to put a gun to someone's head and then in this case they marched her downstairs at gun point this one was w times they are permitted to enter was after six or before ten and indeed as i quoted in my brief and is that page four fifty five of the joint appendix the warrant itself says they can enter in the daytime between six am and definition of daytime court that issue at argument is that it is because of the fact that there's the special prohibition against nighttime and tree and the reason is that and that's exactly that we why warrants like this have a source a home soon home to get more protection and automobiles and yes and so entering at night is considered so might if there was some other technical violation of the warrant it wouldn't maybe rise to the level of the group just violation well the return says the search was completed somewhere around eight thirty one of the f the officers david said nine fifteen was when they law certainly but that is not the posture in which this case comes before you the immigration judge in this case very clearly said she took all the statements of this young as marcus is true and when it conflicted with the ice officers affidavit she's tombstone as markets his statements were the correct ones and i think the government's brief as the evident the only evidence that's relevant this case is in this as marcus is affidavit where she says they came in at five in the morning not approximately not going to make this argument in front of the immigration judge we certainly did your honor and that's why she said i assume in fact in her cannot be right your honor because first of all it's five o'clock so close and then eleven pm an hour after the ten pm cutoff is also close enough and if we're starting to talk about an eight hour nighttime prohibition becoming now a six hour nighttime prohibition i would argue that undermines the very purpose of prohibiting these searches at night which is they are especially shocking disturbing upsetting to people to be woken up out of a deep sleep in the middle of a pitch dark room by someone breaking down their door which is exactly what occurred here that is the reason why in this forum in order for there to be a nighttime search permitted the judge had to find reasonable cause for that he did not which is why he carefully struck out a line that would permit a search any time of the day or night  your honor regarding what happened after so they did get a female officer that officer pointed a gun at her and frankly it doesn't really matter whether it's a man or a woman if they're pointing a gun which i think was definitely unnecessary and menacing use of force there is similar by the way to what the third circuit found in  ramos and the second circuit found in its recent code such a decision in addition they interrogated her for four hours during that period of time they told her she couldn't use the bathroom she couldn't put on clothing they told her she had to sign documents  understand they told her she had to turn over her car keys to my surprise the government's brief says that they only briefly detained her but it's four hours during a period when no reasonable person could have possibly thought they were free to leave i mean she'd been told she couldn't use the bathroom she  gun pointed at her she walked downstairs she had no no reasonable person could have thought they that that she could leave so with all due respect i think what happened to her after the initial burst into the home was indeed coercive intimidating threatening and led both to the fourth amendment violations as well as violations of the fifth and that's standard because the statements were involuntary and coerced i saw the judge hamilton had a question and i didn't want to well i just want to point out that they didn't go in that house looking for that woman they went in the house looking for her partner who have issues in the bed with so she was not the target of the search warrant yes which i think is a very important factor here as well and in fact the search warrant was because of a criminal case against robert and rebecca bontempo who owned annapolis painting and employed unauthorized immigrants at annapolis painting and no one in this house worked for an apples painting or anything to do with annapolis painting so if they hadn't engaged me even if they had violated the terms of the one by a full hour as they did in even if they hadn't pointed a gun at her unnecessarily and for a lengthy period of time as they did then i think if they had done all those things sure they could question her about annapolis painting but they didn't stop there they spent four hours interrogating her during a period that was longer than the period of the search which adds to the fourth i'm invited lation here because they didn't search the whole time as her affidavit shows there's been a significant amount of time questioning a woman who had nothing to do with the warrant and the affidavit that they had to investigate i'd like to also talk a little bit here i think it's definite overlapping about the fifth amendment violation the fact that her statements made were involuntary and were coerced here i think it's instructive to look at the second circuit's decision in saying versus mckay z where the court suppressed statements made by the individual to border patrol officials he did so because he'd been shaking and crying he'd been question for four to five  hours he'd been threatened and they felt that with the fear that he would be deported and so they felt that his admission that he committed immigration violations during that questioning should be suppressed as an involuntary of course once here if you look at the facts i think they're actually far worse unlike saying miss young as marcus did not approach voluntarily any immigration officials she began being questioned after her door was broken down at five in the morning here she was also shaking and crying she was five months pregnant wearing a t shirt she watched her partner be taken off in handcuffs and she said her affidavit she feared she would be harmed by these officers had pointed a gun at her who told her she had no choice but to sign documents even when she told them she didn't understand them you i'm sorry i'm making so i'm making both arguments that there was no group just violation of her fourth amendment rights but also that her fifth amendment rights were violated now here there's an overlap but because the interrogation took place in her home i think many of the factors that support the egregious fourth and then violations also support the fifth amendment violation saying vs new cases is focused on the fifth amendment because that case took place at a border crossing so it was not in a home and didn't implicate the fourth amendment in the same way i also point out before i move off these constitutional violations obviously it's just that precedent for this court but a case to j versus holder was decided the day after our opening brief was submitted so we  talk about in our reply brief but i think it's very instructive and so i just want to flag it for this court it also involves entry into a home at four thirty in the morning where i saw officers then interrogated an individual and during the interrogation they said because either it would undermine the property value or it would be fundamentally unfair i think both could apply here but certainly fundamentally unfair to use statements made taken under these conditions and i think of course part of this an deterrence i mean if it's acceptable in this case for ice officers to break into a home an hour before the warrant permits then of course i saw you know going forward that they don't need to worry about the time limits and warrants if it's acceptable not to to point a gun at a person who poses no threat to walk that person downstairs holding the gun to their back they're going to keep doing that it's acceptable to question someone for four hours who has no relationship to the claims in the warrant on the people they're searching even beyond the period of the search that i've s are going to continue to do that so i think deterrence as well as the fact that it's just fundamentally unfair and the fact that any statements made under that kind of pressure are inherently unreliable certainly didn't research this question if it said search between six in the morning and ten at night you're authorized to search a court order yeah issued by the united states magistrate judge up or involved and then if you go in that other eight hour reason maybe there was some fear some i don't know maybe they knew that there was a big clue there was some guy they want to go in there but then they maybe they should go back to the i don't know but you say they had we have to accept the five o'clock in the morning and that about nobody if i may just briefly address the point about whether i agree with that argument i think that's one of many good reasons to think this is an egregious fourth amendment violation i think we didn't make that argument because we said this but it's not is there surely a fourth member violation at all it's a violation of rule forty one arguably ok well i would like to think because the understanding my understanding about appellate arguments is that you're supposed to raise every claim and that some arguments within claims don't always have to be perfectly articulated we did talk question of whether the agents were negligent her response to our argument that this was a search at five am was to say an hour is not a big difference coming in five is not a big difference from coming in at six and that of course we take may please the court jonathan robbins here on behalf of eric holder of the respondent the turner general good morning the critical issue in this case is whether or not the board abused its discretion in upholding the immigration judges denial of evidence in this case and the evidence that they're looking to suppress in this case is part of the statements made by petitioner during the course of this is in foresman action which he admitted that he wasn't legally in the united states and also the two thirteen  record deportation which is essentially a summary by the agents that they had interviewed her and that she had admitted that she wasn't legally in the united states and it was this evidence that resulted in a finding that she was movable from the united states if you got them but you went into the case will respectfully honor the statute specifically says under a u s c twelve fifty two b that the court may only consider this case with respect to the administrative record now if the return would come into play if petitioner if the court finds the petitioner established proceedings hadn't gotten to that point yet first petitioner has to establish a prima facie case of of that the evidence was quite legally then d h as can submit evidence such as the return which could rebut their claim that they went in at five o'clock that would come in later on and that's my point the return still could come in if if the court were determined that she did establish a prima facia case that the evidence was acquired illegally then when it went back to a hearing then the return of record could be submitted as evidence but it wasn't in this case it didn't get to that point the immigration judge did correctly that her claim that they went in about five o'clock is true for the purposes of this analysis hasn't been determined yet whether that's actually true but in this analysis the purpose of this case you say is true yes correct purposes i what's relevant here is whether or not this would constitute an egregious violation if it doesn't constitute an egregious violation there's no need to remain because even if you if you if the warrant said go between six and ten and they went on a big but without a war house yes what's the law and have enough unwarranted search of all night well the supreme court upheld the exclusionary rule still doesn't apply in civil removal proceedings that it hasn't said that the exclusionary rule should apply even if it was a warrantless search in fact the agency regulations specifically allow warrantless arrests and other various i mean the first of all the agency can issue administrative wants of this this was an unusual case in that they got a judicially issue  yes but then they actually get it out of hot they actually did it right but they take a day yes and the question before the court then is does jumping the gun on the time in the warrant constitute an egregious constitutional violation record alleged by petitioner in her affidavit or in the evidence that was presented that renders the a there in there in force one action occurring at five o'clock is there something that renders that agree just over what they have if they had done it at six o'clock within the terms of the warrant that's the relevant analysis then they haven't identified any factors that would render assuming it's a warrant to search at five o'clock well that's what the agency that's not warranted search at five o'clock on the board says go go into the six o'clock well no you don't have authority to go in the house till six o'clock on the face of so how do you how do you deal with that you're officers violated a court order to go in the house at five o'clock for purposes of this ruling that when they went to bob o'clock right which was outside the confines of the time and day and night it would have to be intentional because the officer certainly went in and got the warrant and they could read right there probably have training on argue that the argument that was made was that this was constituted in agree just constitutional violation now i understand your honor may be so what have to i'm going to have to be subsumed it have to be well below it and so all we can go on is what the agency specifically found in this case and this is the argument that they've conceded they've they've they haven't contended that this wasn't a warrantless arrest and i might add that the supreme court's decision ins against lopez mendoza still precludes the exclusionary rule even in cases that don't include warrants anyway so the exclusion the application of the the analysis regarding the application of the exclusionary rule wouldn't apply in this case regardless of whether it was a valid warrant around or not so that distinction really doesn't have relevance with respect t but no i think each case is looked at in a case by case analysis and they would certainly have to look at their conduct if they're found it amounted to an egregious violation there are some circumstances where that might be possible but in this case that didn't happen again petitioner has an alleged any specific factors that would render going in a minute foresman action at five o'clock so vastly different from six o'clock that there was some sort of a grievous thing here what they've said in their brief is that there's a special trauma that goes along with the pre dawn ra are yes but the point that i'm making is they're arguing that there is a special trauma that comes with a pre dawn raid and that seems to imply two separate they're either saying well it was dark outside so that's made it extra scary and that makes this egregious or they're  reiterate but if it were to be assumed that it was again what are the factors that they've alleged that make this egregious they have all the have said is that there's a special trauma that goes with the pre dawn raid well six o'clock could be predawn depending on what time of year it is that doesn't in itself specify any factor that would render this particular action agrees and that's what the relevant analysis is here they've also said that there were a grievous violations because of the use of unreasonable force it's well established in the case law here that the officers when they're conducting this type of enforcement action have the authority to secure the situation it's for occupant safety for officer safety all of their actions in this case were reasonable with respect to ensuring that safety you know they they mentioned that they had guns pointed at them but they don't allege that any of there was any gun pointing or any shouting once they had been secured in the living room which is consistent with the purpose of trying to secure the premises making sure there's nobody hiding in a room with a weapon or anything of that nature and their their conduct was reasonable and responsible in that regard you know there's this surprise that the officers encountered when they encountered a woman who was five months pregnant and they did exactly what we would want ice officers to do in this situation they immediately called a female officer to come a sister of the female officer told it was going to be ok they let her get  shirt to cover the night sure that she'd been wearing i know that they claim that they weren't allowed to go to the bathroom but it's important to note that the time that she asked them to go to the bathroom they were still conducting their protective sweep and that is reasonable to not let anybody just go roaming through the house while they're busy clearing the different rooms and there's no allegation in this affidavit that she provided that she continually asked him that or that she was repeatedly denied an opportunity to go to the bathroom there's only this one instance where she asked while they were still conducting their sweep so that certainly is reasonable conduct and i think your honour's have noted that they certainly have a right to protect themselves and to ensure that safety that's very consistent with case law the case law is pretty resoundingly that regard with respect to the petitioners argument regarding the actual warrant itself being particularized there was the warrant itself has a picture of the house it has the address of the house it's pacifically authorizes the government to look for illegal aliens and the supreme court law is also clear that they bit too hard the board has actually spoken a little bit as to the standard that we look at when we're looking at whether evidence should be suppressed and what they've held is that suppression of the evidence this isn't in matter of torro which is cited to in the immigration judge's decision  they've talked about is that the evidence might be suppressed suppress a bill if the evidence if usage of the evidence would transgression notions of fundamental fairness or undermine the program value of the evidence that would seem to include egregious violations within its scope i think it's actually supreme court in lopez mendoza said we're not addressing whether the board violated its regulations so their argument they've sort of taken a spaghetti against the wall approach they've said all the agencies violated five different regulations here they're trying to bootstrap onto that possible exception to the  application to the fact that the court doesn't apply the exclusionary rule but there's a lot of overlap with respect to the analysis because the regulations that they're challenging that they say that they claim to see if she violated involve the same issues you know the use of force or whether or not they were arrested you know they had the whether or not they were advised of counsel i see i'm i'm running a little bit out of time here i just want to briefly focus on there's another argument that's being made with respect to that advice of counsel the board has a president decision turpin it's regulation with this in this regard the advice the requirement of advice to counsel doesn't happen until an alien's been placed in formal proceedings which is practically at the time when the m t the board rather has a presidential decision to that effect and that their interpretation the regulation in that regard should be afforded deference and that's actually difference as set forth in our against robyn's which is an even greater level of deference than that anyone that doesn't transcend into a violation of the constitution doesn't this go so as to the time of church i don't think it does but again i want to be careful the board and immigration judge did make a finding in that regard i don't want to go making some argument that the board an immigration thing again which clearly it does i mean i don't think so either but i get i don't want to make an argument that the board an immigration judge didn't make what's before the court or the or the  findings of the board an immigration judge and the record is limited to those findings and therefore their interpretation was that this wasn't an egregious violation and it was limited to that again they haven't argued anything regarding the scope of rule forty one with respect to the actual application of the federal rules setting forth that i'm trying to think of so i guess of there are any other questions with respect to the fourth fifth amendment your honor just briefly on the question of whether we raise the points being argued here about whether or not the violation of the terms of the warrant by entering an hour earlier whether that raises a fourth amendment violation because there was no warrant all i'll just point your hono s i do think that your honor is making the argument more clearly that maybe in our brief but i think it's subsumed within the arguments we made in our brief if you look at page thirty six of our brief the heading is ice officers entered miss yon as markers as home at night in violation of the express terms of the warrant and then we explain how that is an egregious fourth amendment violation in part because yes entering at night is itself a reason to think that there's an egregious violation but in addition and we made this point because intentional violations immigration we know what she did say that they entered five and i think that i have to answer to that one your honor i would say the fact that they entered five which is what has to be assumed is true and she assumed is true i also assume there are adults who can tell time that was intentional act on their part the second point would be that might be another issue to be explored on remand in our position here is that what the right result here is remain to the immigration judge for a hearing on these questions hearing there would be an opportunity for ice officers to present testimony and there'd be an opportunity for miss eunice marcus to cross examine them and to present her own testimony she's been denied that opportunity on the ground that she didn't even make out a  case so did that answer your your honor's concern there i also wanted to talk briefly about the regulations it is not correct i don't think your honor that judge floyd that the regulations are just guidance that when there is a violation of a rule or regulation promulgated at least in part to the sto a procedural or substantive benefit on the individual in question then that is a reason to invalidate agency action there needs to be prejudice shown so that we explain in our brief why she's prejudiced but in matter of garcia flores decision the court goes on to say were compliance with the regulation is nan dated by the constitution prejudice may be presumed similarly were an entire procedural framework designed to ensure the theor processing of an action affecting an individual is created but then not followed by the agency it can be deemed prejudicial so this is the be a zone precedent i didn't think the government actually took issue with they say of course argue the regulations were violated but i didn't even understand their brief to argue that if the regulation if we could show they were violated and that there was prejudice but that's a reason for terminating the it the fourth circuit also said that violation it was in the bureau of prisons contacts and maybe you would think that's not relevant but it also said violations of regulations are themselves grounds for terminating agency action agency action you have to show that the regulation that was violated was that it prejudiced efforts of show was violated and have to show it prejudiced the individual and here we're talking about regulations governing unnecessary use of force and remarkably ice regulations are very clear they're supposed to use minimal amounts of force so for that reason alone the pointing of the gun at her i think violates the regulation as well as the fourth amendment ice regulations also require advising immigrants or individuals who are being questioned by i saw officers about their rights including their right the fact that statements they make may be used against them and then they can obtain counsel now the position of the government is that that regulation doesn't kick in doesn't apply until someone gets a notice to appear in the mail that is long after they've been questioned by an examining officer as i explained in my opening brief and in more detail in my reply i don't like the regulation can reasonably be read to do that because the regulation refers to an examining officer advising the individual or questioning