FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ENRIQUE SANCHEZ, AKA 

Enrique Cruz Sanchez, AKA Luis 

Llamas Sanchez, AKA Luis Charles 

Sanchez, AKA Enrique Sanchez 

Cruz, AKA Luis Enrique Sanchez 

Llamas,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney 

General,

Respondent.

No. 14-71768

Agency No.

A076-359-028

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 8, 2017

Pasadena, California

Filed August 30, 2017

Before: Harry Pregerson, Richard A. Paez,

and Morgan B. Christen, Circuit Judges.

Opinion by Judge Pregerson;

Concurrence by Judge Pregerson;

Concurrence by Judge Christen
2 SANCHEZ V. SESSIONS

SUMMARY*

Immigration

The panel granted, reversed, and remanded Luis Enrique 

Sanchez’s petition for review of the Board of Immigration 

Appeals’ decision affirming an immigration judge’s 

decision denying Sanchez’s motion to suppress evidence of 

his alienage and ordering his removal.

The panel held that Coast Guard officers who detained 

Sanchez committed an egregious Fourth Amendment 

violation because they seized Sanchez based on his Latino 

ethnicity alone. Accordingly, the panel held that the 

immigration judge erred in failing to suppress the Form I213 (Record of Deportable/Inadmissible Alien), which was 

prepared after his immigration arrest and which the 

Government introduced to establish Sanchez’s alienage and 

entry without inspection. The panel also concluded that 

Sanchez was not seized at the United States border, where 

Fourth Amendment protections are lower.

The panel further held that, because Coast Guard officers 

detained Sanchez solely on the basis of his Latino ethnicity, 

the officers violated an immigration regulation, 8 C.F.R. 

§ 287.8(b(2), which provides that an immigration officer 

may briefly detain an individual only if the officer has 

“reasonable suspicion, based on specific articulable facts” 

that the person is engaged in an offense or is an alien illegally 

in the United States. Accordingly, the panel held that 

Sanchez’s removal proceedings must be terminated based on 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SANCHEZ V. SESSIONS 3

the regulatory violation because the regulation is designed to 

benefit Sanchez, and Sanchez was prejudiced by the 

violation.

Because the panel concluded Sanchez’s proceedings 

should have been terminated based on the regulatory 

violation, the panel did not reach the question whether 

Sanchez’s previously-submitted Family Unity Benefits and 

Employment applications, which the Government also 

introduced to establish alienage, are indirect fruits of the 

poisonous tree. The panel granted Sanchez’s petition for 

review and remanded to the Board with instructions to 

terminate Sanchez’s removal proceedings.

Concurring, Judge Pregerson wrote separately to explain 

why it is unfair for the Government to encourage noncitizens 

to apply for immigration relief, and later use statements in 

those relief applications against them in removal 

proceedings. Judge Pregerson expressed concern about the 

Government’s argument that the exclusionary rule does not 

apply to Sanchez’s Family Unity Benefits and Employment 

Authorization applications because they predated the 

egregious constitutional violation. He wrote that 

categorically exempting pre-existing applications from the 

exclusionary rule in this way allows law enforcement to 

unconstitutionally round up migrant-looking individuals, 

elicit their names, and then search through Government 

databases to discover incriminating information in preexisting immigration records. 

Concurring, Judge Christen agreed that the case did not 

concern a border stop, noting that the Coast Guard did not 

seize Sanchez at a port of entry and that the evidence did not 

show that Sanchez’s boat had sailed from international 

waters. Judge Christen also agreed that Sanchez’s removal 
4 SANCHEZ V. SESSIONS

proceedings must be terminated based on the regulatory 

violation.

COUNSEL

John Wolfgang Gehart (argued), Lourdes Barrera Haley, 

Elena Yampolsky, and Carlos Vellanoweth, Vellanoweth & 

Gehart LLP, Los Angeles, California, for Petitioner.

Tim Ramnitz (argued), Attorney; Jennifer P. Levings, Senior 

Litigation Counsel; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

OPINION

PREGERSON, Circuit Judge:

INTRODUCTION

This case is about Luis Sanchez, a small boat owner, who 

took some friends on a fishing trip within United States 

territorial waters, and ended up in removal proceedings 

before an immigration judge (“IJ”) under section 240 of the 

Immigration and Nationality Act, 8 U.S.C. § 1229a.

Here is what happened: Sanchez’s small boat was dead 

in the water because of engine failure near Channel Islands 

Harbor in Oxnard, California. His friend issued a distress 

call, and responding United States Coast Guard officers 

towed Sanchez’s boat into Channel Islands Harbor, a private 

recreational harbor. When they arrived at Channel Islands 

Harbor, eight Coast Guard officers were waiting for Sanchez 

and his companions. The Coast Guard officers immediately 
SANCHEZ V. SESSIONS 5

detained, frisked, and arrested Sanchez and his companions. 

The Coast Guard officers contacted Customs and Border 

Protection because the officers suspected that Sanchez and 

his companions were “undocumented worker[] aliens.” 

Sanchez was then placed in removal proceedings. The 

matter before us is limited to Sanchez’s removal 

proceedings.

During removal proceedings before the IJ, the 

Government sought to establish Sanchez’s alienage and his 

entry into the United States without inspection by 

introducing: (1) a Form I-213 (Record of 

Deportable/Inadmissible Alien) that was prepared by a 

Customs and Border Protection officer after Sanchez’s 

immigration arrest and (2) Sanchez’s Family Unity Benefits 

and Employment Authorization applications.

At the removal hearing before the IJ, Sanchez moved to 

suppress the Form I-213 and the Family Unity Benefits and 

Employment Authorization applications as the fruits of an 

egregious Fourth Amendment violation. Sanchez argued 

that the Coast Guard officers egregiously violated his Fourth 

Amendment rights by detaining him based on his Latino 

ethnicity alone. The IJ denied Sanchez’s motion to suppress 

and ordered Sanchez removed to Mexico. The Board of 

Immigration Appeals (“BIA”) affirmed. This Petition for 

Review timely followed.

We grant Sanchez’s Petition for Review. We conclude 

that the Coast Guard officers committed an egregious Fourth 

Amendment violation and violated an immigration 

regulation because they seized Sanchez based on his Latino 

ethnicity alone. Thus, we hold that the IJ erred in failing to 

suppress the Form I-213, but do not reach the question of the 

Family Unity Benefits and Employment Authorization 

applications. Additionally, because Sanchez has shown that 
6 SANCHEZ V. SESSIONS

the Government violated its own regulation that is designed 

to benefit Sanchez, and that Sanchez was prejudiced by the 

violation, we hold that Sanchez’s removal proceedings must 

be terminated.

FACTUAL BACKGROUND

Luis Enrique Sanchez’s Immigration History

Luis Enrique Sanchez is forty-five years old. He was 

born in, and is a citizen of, Mexico. He entered the United 

States without inspection in March 1988 when he was 

seventeen years old. For the last three decades – most of his 

life – he has lived in Ventura County, California.

On May 11, 2004, Sanchez submitted Family Unity 

Benefits and Employment Authorization applications to the 

United States Citizenship and Immigration Service 

(“USCIS”). USCIS granted Sanchez Family Unity Benefits, 

which granted him authorization to reside and work in the 

country, through his father.1 Sanchez’s Benefits expired on 

May 11, 2006. Sanchez applied for an extension of his 

Benefits on December 2, 2008. However, on May 28, 2009, 

USCIS denied Sanchez’s applications because Sanchez had 

three misdemeanor convictions for violations of California’s 

Vehicle Code, and was therefore ineligible for Family Unity 

Benefits.2 8 C.F.R. § 236.13(b).

 1 Sanchez qualified for Family Unity Benefits through his father 

because he was the unmarried child of his father, who had obtained 

lawful status as a Special Agricultural Worker. 8 C.F.R. § 236.12.

2 On September 16, 1993, Sanchez was convicted of violating 

California Vehicle Code § 23109(c) (exhibition of speed on a highway), 

§ 12500(a) (driving without a license), and § 40508(b) (failing to pay 
SANCHEZ V. SESSIONS 7

Fishing Trip and Immigration Arrest

On February 25, 2010, Sanchez, two adult Latino 

friends, and one of the friend’s 14-month-old son took a 

fishing trip. Using Sanchez’s small pleasure boat, they 

departed from the Channel Islands Harbor, a recreational 

harbor near Port Hueneme in Oxnard, California. Sanchez 

declared that he and his companions did not travel outside 

United States territorial waters; indeed, that they did not 

travel more than two or three miles from the harbor. See

Nat’l Oceanic & Atmospheric Admin., U.S. Maritime Limits 

and Boundaries, https://www.nauticalcharts.noaa.gov/csdl/

mbound.htm (Sept. 13, 2013) (describing that territorial

waters extend to 12 nautical miles).

About thirty minutes into the fishing trip, the small 

boat’s engines lost power and the boat was dead in the water. 

One of Sanchez’s friends on the boat called 911 to request a 

tow back to the recreational harbor. The U.S. Coast Guard 

(the “Coast Guard”) responded. Upon reaching the boat, the 

Coast Guard officers towed Sanchez’s boat back to Channel 

Islands Harbor.

Upon arriving at Channel Islands Harbor around 

5:00 p.m., approximately eight Coast Guard officers were

waiting onshore for Sanchez and his companions. Once 

Sanchez and his companions disembarked the boat, the 

Coast Guard officers immediately detained and frisked them. 

The Coast Guard officers demanded that Sanchez and his 

 

court fine). On September 27, 1995, Sanchez was convicted of violating 

California Vehicle Code § 20002(a) (failing to stop after a vehicular 

accident). On February 8, 2008, Sanchez was convicted of violating 

California Vehicle Code § 12500(a) (driving without a license).
8 SANCHEZ V. SESSIONS

companions hand over their identifications and belongings. 

Sanchez handed his driver’s license to a Coast Guard officer.

The Coast Guard officers told Sanchez and his 

companions that they were not allowed to leave. When 

Sanchez asked why the group was not allowed to leave, a 

Coast Guard officer told Sanchez not to ask any questions 

and to wait for someone else to speak with him. Sanchez 

testified that the Coast Guard officers asked him only two 

questions, which he answered: (1) what is your name? and 

(2) where do you live?

A Coast Guard officer could not “establish positive 

identity or nationality” of Sanchez.3 Without any other 

information, the Coast Guard officers notified U.S. Customs 

and Border Protection to report “the possibility of 

4 undocumented worker[] aliens.”4

About two hours later, Customs and Border Protection 

officers arrived at Channel Islands Harbor and detained the 

men for two more hours, during which time someone arrived 

to pick up the infant. Customs and Border Protection 

officers then transported Sanchez and the two adult Latino 

males to a Customs and Border Protection facility. The 

 3 According to the U.S. Customs and Border Protection Form I-213 

prepared after Sanchez’s arrest, the following Government computer 

databases were searched using Sanchez’s information, and all of them 

returned “negative” results: the Automated Fingerprint Identification 

System; the Consular Consolidated Database; the National Crime 

Information Center; and the Treasury Enforcement Communications 

System.

4 There is no indication that Coast Guard officers searched 

Sanchez’s boat. It is undisputed that neither the boat nor the passengers 

carried contraband.
SANCHEZ V. SESSIONS 9

Customs and Border Protection officers detained and 

interrogated Sanchez, strip searched him, and retained his 

identification and wallet. Through this questioning, 

Customs and Border Protection officers obtained 

information about Sanchez’s alienage and entry into the 

United States. Customs and Border Protection released 

Sanchez later that night.

Customs and Border Protection Officer Carlos Rubio 

prepared a Form I-213 (Record of Deportable/Inadmissible 

Alien)5 for Sanchez. The Form I-213 included Sanchez’s 

admission that he was undocumented and had entered the 

United States without inspection. The Form I-213 also 

stated that the Coast Guard officers suspected that Sanchez 

was an “undocumented worker[] alien[],” detained Sanchez, 

and thereafter contacted Customs and Border Protection.

PROCEDURAL BACKGROUND

Nine months after the fishing trip, on November 10, 

2010, the United States Department of Homeland Security 

served Sanchez with a Notice to Appear for removal 

proceedings. The Government charged Sanchez as 

removable. On December 27, 2011, Sanchez appeared with 

counsel before an immigration judge (“IJ”) and denied the 

charges of removability.

 5 A “Form I-213 is essentially a recorded recollection of a[n 

immigration official’s] conversation with a [noncitizen].” Bustos Torres 

v. I.N.S., 898 F.2d 1053, 1056 (5th Cir. 1990). It is created by an 

immigration official “with biographical information about a 

noncitizen. . . . It is generally created during the questioning of a 

noncitizen to obtain information to place him in removal proceedings.” 

Immigration Trial Handbook, § 7:12: Form I-213 (July 2016 Update).
10 SANCHEZ V. SESSIONS

At the removal hearing before the IJ, the Government 

established Sanchez’s alienage and that he entered the 

country without inspection by submitting the following 

documents: (1) the Form I-213 prepared by Customs and 

Border Protection officer Rubio; and (2) Sanchez’s Family 

Unity Benefits and Employment Authorization applications.

Sanchez filed a motion to suppress these documents and 

to terminate proceedings. He argued that the documents 

should be suppressed because the Government obtained and 

produced those documents in violation of his Fourth 

Amendment rights when they seized and detained him solely 

on the basis of his Latino appearance.6 Sanchez argued that 

if his motion to suppress were granted, the IJ must terminate 

proceedings. The IJ denied Sanchez’s motion to suppress 

and ordered Sanchez removed to Mexico.

Sanchez appealed the IJ’s decision to the BIA. Sanchez 

again argued that the Coast Guard officers racially targeted 

him because of his Latino ethnicity. On May 27, 2014, the 

BIA affirmed the IJ’s decision and further concluded that 

Sanchez’s identity and “evidence of his alienage that is 

independently derived from a routine record search based on 

that identity is not suppressible.”7 This Petition for Review 

timely followed.

 6 Sanchez submitted a declaration in support of his motion to 

suppress. In the declaration, Sanchez recounted the events leading to his 

immigration arrest. Sanchez testified before the IJ in support of the 

motion to suppress. The IJ found Sanchez’s testimony was consistent 

with his declaration.

7 Here, the BIA was referring to Sanchez’s Family Unity Benefits 

and Employment Authorization applications.
SANCHEZ V. SESSIONS 11

JURISDICTION & STANDARD OF REVIEW

We have jurisdiction under 8 U.S.C. § 1252. Where, as 

here, the BIA adopts the IJ’s decision while adding some of 

its own reasoning, we review both decisions. LopezCardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). 

We review constitutional claims and questions of law de 

novo. Id.

DISCUSSION

The central issue on appeal is a constitutional and legal 

question: whether the evidence establishing Sanchez’s 

alienage and his entry without inspection (i.e., the Form I213) must be suppressed as the fruits of an egregious Fourth 

Amendment violation. Lopez-Rodriguez v. Mukasey, 

536 F.3d 1012, 1016–19 (9th Cir. 2008). The exclusionary 

rule applies in civil removal proceedings where a 

noncitizen’s Fourth Amendment rights are egregiously 

violated. Martinez-Medina v. Holder, 673 F.3d 1029, 1033–

34 (9th Cir. 2011).

For the exclusionary rule to apply in civil removal 

proceedings, a noncitizen must first establish (1) a prima 

facie case that law enforcement violated his or her Fourth 

Amendment rights; and (2) that the Fourth Amendment 

violation was egregious. Lopez-Rodriguez, 536 F.3d at 

1016. Once a prima facie case and egregiousness are 

established, the burden shifts to the Government to defend 

the constitutionality of its actions. Matter of Barcenas, 

19 I.&N. Dec. 609, 611 (BIA 1988). If the Government fails 

to adequately defend the constitutionality of its actions, the 

noncitizen’s motion to suppress should be granted.

Thus, to resolve whether Sanchez can suppress the

Government’s evidence establishing his alienage and that he 
12 SANCHEZ V. SESSIONS

entered the country without inspection (i.e., the Form I-213), 

we must ask a series of questions: (1) whether Sanchez was 

seized at the border, where Fourth Amendment protections 

are lower; (2) whether Sanchez established a prima facie 

case that the Coast Guard officers violated his Fourth 

Amendment rights; and, if so, (3) whether that violation was 

egregious.

We answer these questions below and conclude that the 

Coast Guard officers committed an egregious Fourth 

Amendment violation and violated an immigration 

regulation when they seized Sanchez based on his Latino 

ethnicity alone. The exclusionary rule therefore applies, and 

we hold that the Form I-213 must be suppressed because it 

is tainted by the underlying egregious Fourth Amendment 

violation. We also hold that the immigration judge erred by 

failing to terminate Sanchez’s removal proceedings based on 

the Coast Guard officers’ violation of an immigration 

regulation. We do not reach the issue whether the Family 

Unity Benefits and Employment Authorization applications 

should have been suppressed.

I. Was Sanchez seized at the United States border?

The Government argues that the Coast Guard officers 

seized Sanchez at the United States border, where Fourth 

Amendment protections are lower. We disagree.

Generally, “[a] border search is by its very nature 

reasonable under the [F]ourth [A]mendment, and requires 

neither a warrant, probable cause, nor even articulable 

suspicion.” United States v. Dobson, 781 F.2d 1374, 1376 

(9th Cir. 1986). The Fourth Amendment still applies at the 

border, however, and searches or seizures that implicate a 

person’s dignity “require some level of suspicion.” United 

States v. Flores-Montano, 541 U.S. 149, 152 (2004).
SANCHEZ V. SESSIONS 13

To determine whether the seizure was a “border stop,” 

we must assess whether the seizure (1) occurred at a United 

States port of entry, United States v. Villamonte-Marquez, 

462 U.S. 579, 589–92 (1983), or (2) took place on the high 

seas when reasonably certain facts suggested that the vessel 

sailed from international waters, United States v. Tilton, 

534 F.2d 1363, 1366 (9th Cir. 1976).

First, Sanchez was not seized at a United States port of 

entry. Sanchez was seized at Channel Islands Harbor, which 

is not a port of entry as defined in 8 C.F.R. § 100.4 and 

19 C.F.R. §§ 101.1, 101.3 (defining Port Hueneme as a 

United States port of entry). Rather, Channel Islands Harbor 

is a recreational harbor about one mile from the Port 

Hueneme port of entry.

Second, there is no evidence that Sanchez’s boat had 

entered United States territorial waters from international 

waters. The Coast Guard officers first encountered 

Sanchez’s boat in United States territorial waters only two 

miles from a recreational fishing harbor. There is nothing in 

the record that shows whether Sanchez’s small boat came 

from international waters, or whether the Coast Guard asked 

him whether it did, and the Government has not offered any 

“reasonably certain” facts that suggest that Sanchez’s boat 

traveled from international waters. Tilton, 534 F.2d at 1366.

We conclude that the Coast Guard officers did not seize 

Sanchez at the United States border. Therefore, the lower 

Fourth Amendment standard does not apply. Accordingly, 

we must determine whether Sanchez established a prima 

facie case that the Coast Guard officers’ actions were 

unreasonable under the ordinary Fourth Amendment 

standard.
14 SANCHEZ V. SESSIONS

II. Did Sanchez establish a prima facie case that the 

Coast Guard officers violated his Fourth Amendment 

rights?

Under the ordinary Fourth Amendment standard, 

“[w]hen an encounter between a law [enforcement officer] 

and another person escalates to the point where it is 

considered a ‘seizure,’ the officer must have a reasonable, 

articulable basis for his actions.” Orhorhaghe v. I.N.S., 

38 F.3d 488, 494 (9th Cir. 1994).

It is well-settled that it is unreasonable for a law 

enforcement officer to seize a person the officer presumes is 

undocumented based solely on the person’s appearance or 

name. See id. at 497–98 (“[A]llowing INS agents to seize 

and interrogate an individual simply because of his foreignsounding name or his foreign-looking appearance risks 

allowing race or national-origin to determine who will and 

who will not be investigated.”); see also United States v. 

Brignoni-Ponce, 422 U.S. 873, 885–86 (1975) (holding that 

a person’s proximity to the United States-Mexico border and 

apparent Mexican descent was not enough to constitute 

reasonable suspicion).

First, Sanchez argues that immediately after he 

disembarked his boat, the Coast Guard officers seized him 

based on his Latino ethnicity alone. An encounter with law 

enforcement becomes a seizure when a reasonable person, 

considering the totality of the circumstances, would not feel 

“free to decline the officers’ requests or otherwise terminate 

the encounter.” Florida v. Bostick, 501 U.S. 429, 438 

(1991). It is undisputed that immediately upon being 

brought ashore, eight Coast Guard officers were waiting for 

Sanchez and his companions. It is further undisputed that 

the Coast Guard officers (1) immediately detained and 

frisked Sanchez, (2) demanded that Sanchez provide 
SANCHEZ V. SESSIONS 15

identification, (3) told Sanchez that he was not free to leave 

until someone else questioned him, (4) instructed Sanchez 

not to ask questions, and (5) detained Sanchez for two hours.

Considering the totality of the circumstances, we 

conclude that Sanchez was seized immediately as he 

disembarked his boat at Channel Islands Harbor because a 

reasonable person in Sanchez’s position would not have felt 

free to decline the Coast Guard officers’ requests or 

otherwise terminate the encounter.

Second, Sanchez argues that the Coast Guard officers 

detained him based on his Latino ethnicity alone. When the 

Coast Guard officers seized Sanchez, they did not explicitly 

state that they seized him and his companions because they 

are Latinos. But the Government has not offered a 

satisfactory alternative explanation for the warrantless 

seizure.

The Government’s only evidence explaining the Coast 

Guard officers’ conduct is the Form I-213 prepared by 

Customs and Border Protection Officer Rubio after 

Sanchez’s arrest. According to the Form I-213, the Coast 

Guard officers reported Sanchez to Customs and Border 

Protection because the officers suspected that Sanchez and 

his companions were “undocumented worker[] aliens.”

On the record before us, it appears that the Coast Guard 

officers seized and detained Sanchez based on his Latino 

ethnicity alone. Accordingly, the Coast Guard officers’ 

conduct was unreasonable. We therefore conclude that 

Sanchez established a prima facie case that the Coast Guard 

officers violated his Fourth Amendment rights.
16 SANCHEZ V. SESSIONS

III. Did the Coast Guard officers egregiously violate 

Sanchez’s Fourth Amendment rights?

A Fourth Amendment violation alone does not trigger 

the exclusionary rule in civil removal proceedings: the 

exclusionary rule only applies if the Government’s Fourth 

Amendment violation is egregious. Lopez-Rodriguez,

536 F.3d at 1016. Because we conclude that Sanchez 

established a prima facie case that the Coast Guard officers

violated his Fourth Amendment rights, we must consider 

whether the Coast Guard officers’ conduct was egregious.

A Fourth Amendment violation is egregious if “evidence 

is obtained by deliberate violations of the Fourth 

Amendment, or by conduct a reasonable officer should have 

known is in violation of the Constitution.” Gonzalez-Rivera 

v. I.N.S., 22 F.3d 1441, 1449 (9th Cir. 1994) (emphasis 

added and internal citations omitted). We have held that a 

reasonable officer should have known that his or her conduct 

violates the Constitution if the case law clearly established 

that such conduct was unconstitutional. Id. at 1450.

Sanchez argues that a reasonable Coast Guard officer 

would have known that the case law clearly established that 

it was unconstitutional to seize him based on his Latino 

ethnicity alone. We agree.

In 1975, the Supreme Court pronounced in BrignoniPonce that “[e]ven if [the authorities] saw enough to think 

that the occupants were of Mexican descent, this factor alone 

would justify neither a reasonable belief that they were 

[noncitizens], nor a reasonable belief that the car concealed 

other [noncitizens] who were illegally in the country.” 

422 U.S. at 886.
SANCHEZ V. SESSIONS 17

In 1994, nineteen years later, this court in GonzalezRivera held that it was an egregious constitutional violation 

when an officer detained an immigrant because of his ethnic 

appearance and other not credible reasons because case law 

had clearly established the unconstitutionality of seizing a 

person based solely on his race or ethnicity. 22 F.3d at 

1449–50 (“[The stop] occurred long after the Supreme Court 

. . . made clear that the Constitution does not permit such 

stops.”). By contrast, in Martinez-Medina, although the 

plaintiffs alleged that they were detained based on their 

ethnic appearance, this court held that there was not an 

egregious violation because the sheriff seized the plaintiffs 

after he knew that the plaintiffs were not legally present in 

the country. 673 F.3d at 1037.

As discussed, the Coast Guard officers did not have any 

information other than Sanchez’s Latino ethnicity when they 

initially seized him on suspicion of being an “undocumented 

worker[] alien[].” At the time the Coast Guard officers 

seized Sanchez, the principle from Brignoni-Ponce that a 

detention based solely on a person’s race or ethnicity is 

unconstitutional was clearly established as it had been on the 

books for 35 years. Unlike the sheriff in Martinez-Medina, 

the Coast Guard officers did not know that Sanchez was not 

legally present in the country when they seized him. 

Because the case law clearly established that seizing a 

person solely based on ethnic appearance was 

unconstitutional, a reasonable Coast Guard officer should 

have known that he or she was violating the Fourth 

Amendment by seizing Sanchez based on his Latino 

ethnicity alone.

We therefore conclude that Sanchez satisfied his initial 

burden for suppressing the Form I-213 because he 
18 SANCHEZ V. SESSIONS

established a prima facie that the Coast Guard officers 

egregiously violated his Fourth Amendment rights.

IV. Is the Form I-213 suppressible?

The Government introduced the Form I-213 at Sanchez’s 

removal hearing to establish his alienage and that he entered 

the country without inspection. Sanchez argues that the 

Form I-213 should be suppressed because it is the product of 

the Coast Guard officers’ egregious Fourth Amendment 

violation.

Because we conclude that Sanchez has established a 

prima facie case that the Coast Guard officers egregiously 

violated Sanchez’s Fourth Amendment rights, the burden 

shifts to the Government to defend the constitutionality of 

the Coast Guard officers’ actions. Matter of Barcenas, 

19 I.&N. Dec. at 611. If the Government cannot defend the 

Coast Guard officers’ actions, then the exclusionary rule 

applies to all direct products of the seizure, which here 

would be the Form I-213. We conclude that the 

Government’s arguments in defense of the Coast Guard 

officers’ unconstitutional actions lack merit.

First, the Government cites a number of cases to argue 

that Coast Guard officers may reasonably question persons 

on a vessel seeking to come ashore. But, in those cases, the 

Coast Guard officers’ actions were constitutional because 

there were suspicious circumstances that justified the search 

or seizure. See, e.g., United States v. Klimavicius-Viloria, 

144 F.3d 1249, 1263–64 (9th Cir. 1998) (finding that the 

Coast Guard officers’ search of a fishing boat was 

reasonable under the Fourth Amendment because the 

occupants claimed to be on a fishing trip, but lacked any 

fishing equipment); see also Villamonte-Marquez, 462 U.S. 

at 589–92 (finding that the Coast Guard officers’ 
SANCHEZ V. SESSIONS 19

“suspiciousless” boarding of a sailboat was constitutional 

because the sailboat’s markings indicated that it was from 

Switzerland and the officers inspected the sailboat’s 

documents at a designated port of entry to establish that the 

sailboat was authorized to enter the country).

These cases are clearly distinguishable from Sanchez’s 

case because here there was a complete lack of suspicious 

circumstances. Sanchez was not carrying contraband, the 

Coast Guard officers did not ask Sanchez what he was doing 

at sea, and there is no evidence in the record showing that 

the Coast Guard officers boarded Sanchez’s boat to inspect 

the vessel’s documents. There was no reason for the Coast 

Guard officers to suspect that Sanchez had done anything 

unlawful or traveled from international waters.

Second, the Government argues that Coast Guard 

regulations8 authorized the Coast Guard to seize Sanchez 

and board his boat. But, “no Act of Congress can authorize 

a violation of the Constitution.” Almeida-Sanchez v. United 

States, 413 U.S. 266, 272 (1973), and the Government failed 

to adequately defend the constitutionality of its seizure.

We therefore hold that the Form I-213, which the 

Government introduced to establish Sanchez’s alienage and 

 8 “The Coast Guard may make inquiries, examinations, inspections, 

searches, seizures, and arrests upon the high seas and waters over which 

the United States has jurisdiction, for the prevention, detection, and 

suppression of violations of laws of the United States.” 14 U.S.C. 

§ 89(a). An Executive Order also instructs the Coast Guard to “stop and 

board defined vessels, when there is reason to believe that such vessels 

are engaged in . . . violations of United States law or. . . [t]o make 

inquiries of those on board, examine documents and take such actions as 

are necessary to establish the registry, condition and destination of the 

vessel and the status of those on board the vessel.” Exec. Order No. 

12324, 46 Fed. Red. 48, 109 (Sept. 29, 1981).
20 SANCHEZ V. SESSIONS

entry without inspection, must be suppressed. We do not 

reach whether Sanchez’s Family Unity Benefits and 

Employment Authorization applications are indirect fruits of 

the poisonous tree because, as discussed below, Sanchez’s 

removal proceedings should have been terminated because 

the Government violated immigration regulations.

V. Did the Coast Guard officers violate an immigration 

regulation that is meant to protect Sanchez? If so,

was the violation prejudicial?

Sanchez argues that the Coast Guard officers violated an 

immigration regulation when they seized him without 

reasonable suspicion that he had violated any laws.9 We 

agree.

8 C.F.R. § 287.8(b)(2) provides that an immigration 

officer may briefly detain an individual only if the officer 

“has a reasonable suspicion, based on specific articulable 

facts, that the person being questioned is, or is attempting to 

be, engaged in an offense against the United States or is an 

alien illegally in the United States.”

It is clear that the Coast Guard officers violated 8 C.F.R. 

§ 287.8(b)(2) because they detained Sanchez solely on the 

basis of his Latino ethnicity, with no reasonable suspicion 

that criminal activity was afoot.10

 9 Because we find one regulatory violation, we need not consider 

whether the Coast Guard and Customs and Border Protection officers 

also violated the other regulations.

10 These immigration regulations apply to the Coast Guard officers 

here because Coast Guard officers enforcing any law of the United States 

shall “be deemed to be acting as agents of the particular executive 
SANCHEZ V. SESSIONS 21

When the Government violates its own immigration 

regulation, a noncitizen’s deportation proceeding may be 

terminated, so long as (1) the regulation serves a “purpose of 

benefit to the [noncitizen],” and (2) the violation prejudiced 

the noncitizen’s “interests in such a way as to affect 

potentially the outcome of the[] deportation proceeding.” 

Matter of Garcia-Flores, 17 I. & N. Dec. 325, 328 (BIA 

1980) (adopting United States v. Calderon-Medina, 

591 F.2d 529 (9th Cir. 1979)); see also Choyon Yon Hong v. 

Mukasey, 518 F.3d 1030, 1036 (9th Cir. 2008) (applying 

Garcia-Flores’s two-prong test to evaluate whether the 

Government violated a regulation in an immigration case).

The immigration regulation that the Coast Guard 

violated here was meant to preserve Sanchez’s privacy and 

protect him from racial profiling. Matter of Garcia-Flores, 

17 I. & N. Dec. at 329. Requiring a warrant or reasonable 

suspicion, rather than allowing for detention solely on the 

basis of race, protects against racial stereotypes influencing 

law enforcement’s actions. See Gonzalez-Rivera, 22 F.3d at 

1449–50. Sanchez’s interest in being free from racial 

profiling and unjust detention clearly fall within the 

regulations’ purposes.

The violation of this regulation also certainly prejudiced 

Sanchez. “Where compliance with the regulation is 

mandated by the Constitution, prejudice may be presumed.” 

Garcia-Flores, 17 I.&N. Dec. at 328–29. Here, compliance 

with the regulation requiring reasonable suspicion for 

detention was mandated by the Fourth Amendment.

 department or independent establishment charged with the 

administration of the particular law” and “subject to all the rules and 

regulations promulgated by such department.” 14 U.S.C. § 89(b).
22 SANCHEZ V. SESSIONS

Because the Government violated a regulation meant to 

benefit Sanchez, and because he was prejudiced by that 

violation, Sanchez’s removal proceedings must be 

terminated. See United States ex rel. Accardi v. 

Shaughnessy, 347 U.S. 260, 268 (1954) (holding that when 

an agency violates its own regulations in making a given 

determination, that determination is invalidated); Matter of 

Garcia-Flores, 17 I. & N. Dec. at 328–29 (holding that 

deportation proceedings may be “invalidated” in the case of 

a qualifying regulatory violation); see also Waldron v. INS, 

17 F.3d 511, 518 (2d Cir. 1994) (“[W]hen a regulation is 

promulgated to protect a fundamental right derived from the 

Constitution or a federal statute, and the INS fails to adhere 

to it, the challenged deportation proceeding is invalid and a 

remand to the agency is required.”).

CONCLUSION

For the foregoing reasons, we GRANT Sanchez’s 

Petition for Review and REMAND to the BIA with 

instructions to terminate Sanchez’s removal proceedings.

PETITION FOR REVIEW GRANTED. 

REVERSED and REMANDED.

PREGERSON, Circuit Judge, concurring:

I write separately to explain why it is unfair for the 

Government to encourage noncitizens to apply for 

immigration relief, and at a later date use statements in those 

relief applications against noncitizens in removal 

proceedings.
SANCHEZ V. SESSIONS 23

The Government should not be permitted to use 

noncitizens’ applications for immigration relief to remove 

noncitizens from their homes and their families in our 

country. When the Government enacts immigration relief 

programs, it encourages noncitizens to apply because there 

are “significant social costs borne by our Nation when select 

groups are denied the means to absorb the values and skills 

upon which our social order rests.” Plyler v. Doe, 457 U.S. 

202, 220 (1982).

The Government asks noncitizens to provide personal 

information to receive benefits, such as driver’s licenses, 

visas, deferred action, and work authorization. But because 

noncitizens are afraid that the Government could at a later 

date use that information against them, many are reluctant to 

apply. See Angélica Cházaro, Challenging the “Criminal 

Alien” Paradigm, 63 UCLA L. Rev. 594, 642–43 (2016) 

(“Coming out of the shadows to be counted and accounted 

for, however, while it may bring the benefits of work 

authorization and a social security number, involves 

stepping into the potential net of immigration 

enforcement.”).

The Government’s practice in this regard contradicts the 

principle of welcoming immigrants into our communities. 

This practice also contradicts President Kennedy’s view that 

our nation’s “[i]mmigration policy should be generous; it 

should be fair; it should be flexible.” John Fitzgerald 

Kennedy, A Nation of Immigrants (1964). We should 

encourage, not punish, noncitizens who come out of the 

shadows seeking avenues to lawful status.

I am also concerned about the Government’s argument 

that the exclusionary rule does not apply to Sanchez’s 

Family Unity Benefits and Employment Authorization 

applications because they predate the egregious 
24 SANCHEZ V. SESSIONS

constitutional violation. See United States v. Del Toro 

Gudino, 376 F.3d 997 (9th Cir. 2004).

Categorically exempting applications that predate an 

egregious constitutional violation from the exclusionary rule 

allows immigration and other law enforcement agencies to 

prey on migrant and working-class communities. Law 

enforcement officers can unconstitutionally round up 

migrant-looking individuals, elicit their names, and then 

search through Government databases to discover 

incriminating information in pre-existing immigration 

records. See Eda Katharine Tinto, Policing the Immigrant 

Identity, 68 Fla. L. Rev. 819, 864 (2016).

Nothing prevents law enforcement from engaging in this 

unfair tactic if, as the Government contends, immigration 

records that predate an egregious constitutional violation can 

never be the fruit of the poisonous tree. See Elkins v. United 

States, 364 U.S. 206, 217 (1960) (“[The] purpose [of the 

exclusionary rule] is . . . to compel respect for the 

constitutional guaranty in the only effectively available 

way—by removing the incentive to disregard it.”); United 

States v. Olivares-Rangel, 458 F.3d 1104, 1120 (10th Cir. 

2006) (“[T]he deterrence purpose of the exclusionary rule 

would effectively be served only by excluding the very 

evidence sought to be obtained by the primary illegal 

behavior, not just the means used to obtain that evidence.”).

This troubling end-around the exclusionary rule corrupts 

our justice system. The Government should not be allowed 

to flout the protections of the Fourth Amendment and then 

use a noncitizen’s application for immigration relief against 

her or him. We should foster communication, not distrust, 

between migrant communities and law enforcement.
SANCHEZ V. SESSIONS 25

CHRISTEN, Circuit Judge, concurring:

I agree with the panel that this was not a border stop. The 

Coast Guard did not seize Sanchez at a U.S. port of entry, 

nor did the evidence show that Sanchez’s boat had sailed 

from international waters. See United States v. VillamonteMarquez, 462 U.S. 579, 591–93 (1983); United States v. 

Tilton, 534 F.2d 1363, 1364–66 (9th Cir. 1976).

The record shows that Sanchez provided identification 

when he arrived back at the port. The record also shows that 

the Coast Guard ran several computer searches that yielded 

negative results. Despite the absence of hits in these various 

databases, the Coast Guard’s Form I-213 reflects that the 

reason for detaining Sanchez was that the Coast Guard “was 

not able to establish positive identity or nationality.” But 

Sanchez had provided proof of his identity and the Coast 

Guard did not put forth evidence that it had any concern that 

his identification was invalid. Nor did its computer searches 

give reason for detaining Sanchez. In response to Sanchez’s 

prima facie showing, the government failed to offer “specific 

articulable facts” justifying his detention, see 8 C.F.R. 

§ 287.8(b)(2), and therefore violated an immigration 

regulation intended to benefit Sanchez. Because the 

violation was clearly prejudicial to Sanchez, see Matter of 

Garcia-Flores, 17 I. & N. Dec. 325, 328 (BIA 1980), I agree 

that his removal proceedings must be terminated.