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.

WILLIAM P. BARR, Attorney General,

Respondent.

No. 14-71768

Agency No.

A076-359-028

ORDER

Filed April 1, 2019

Before: Kim McLane Wardlaw, Richard A. Paez,

and Morgan Christen, Circuit Judges.

Order;

Concurrence in Order by Judge Paez;

Statement Respecting Order by Judge O’Scannlain;
2 SANCHEZ V. BARR

SUMMARY*

Immigration

The panel filed an order denying rehearing en banc in a 

case in which the panel held that Luis Sanchez may be 

entitled to termination of removal proceedings without 

prejudice as the result of having made a prima facie showing 

of an egregious violation of 8 C.F.R. § 287.8(b)(2) (to detain 

a person for questioning, an immigration officer must have 

reasonable suspicion the person is, or is attempting to be, 

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

illegally in the country), and remanded for the agency to 

afford the Government an opportunity to rebut Sanchez’s 

prima facie case.

Concurring in the denial of rehearing en banc, Judge 

Paez, joined by Judge Wardlaw, wrote to reiterate points in 

response to Judge O’Scannlain’s separate statement. Judge 

Paez wrote that Judge O’Scannlain’s statement attempted to 

obscure the core issue—the egregious regulatory violation—

with the smokescreen of the exclusionary rule, and wrote 

that Judge O’Scannlain’s opinion rested on a 

mischaracterization of decades of precedent.

Judge Paez wrote that, contrary to Judge O’Scannlain’s 

assertions, the panel did not pull the remedy of termination 

with prejudice out of thin air; rather, the remedy was based 

on this court’s precedent and consistent with the Supreme 

Court’s long-standing concern for regulatory violations that 

implicate fundamental rights. Responding to Judge 

 * 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. BARR 3

O’Scannlain’s insistence that the court has no authority to 

address an egregious violation of this regulation, Judge Paez 

wrote that the regulation implicates constitutional rights, 

thereby triggering the court’s duty to ensure agency 

compliance. Judge Paez also responded to Judge 

O’Scannlain’s opinion that the remedy would do nothing but 

delay Sanchez’s “inevitable removal,” stating that this view 

misses the essence of Sanchez’s claim and the harm he 

sought to remedy. In this regard, Judge Paez wrote that more 

was at stake than the outcome of a single case in that the 

remedy recognized the tainted nature of the initial detention 

and, one hopes, would encourage agency compliance. 

Finally, Judge Paez wrote that Judge O’Scannlain’s parade 

of horribles regarding the consequences of the panel’s 

remedy were unsubstantiated and, at best, hypothetical.

Respecting the denial of rehearing en banc, Judge 

O’Scannlain, joined by Judges Callahan, Bea, Ikuta, 

Bennett, and R. Nelson, wrote that the court should have 

reheard this case en banc to correct the panel’s errant 

decision, a very unfortunate precedent with troublesome 

consequences for the court’s immigration jurisprudence. 

Judge O’Scannlain observed that the government in this case 

possessed independent and (constitutionally firm) evidence 

establishing Sanchez’s unlawful status, and, as a result, 

suppression of the evidence obtained by the arrest would do 

Sanchez no good. Judge O’Scannlain wrote that, eager to 

give Sanchez some relief, the panel stretched this court’s 

case law beyond recognition by awarding termination 

without prejudice instead of an appropriate Fourth 

Amendment remedy—suppression of the unlawfully 

obtained evidence.

Judge O’Scannlain wrote that the panel’s decision 

(1) defied the Supreme Court’s decision in INS v. Lopez-
4 SANCHEZ V. BARR

Mendoza, 468 U.S. 1032 (1984), (2) ignored basic Fourth 

Amendment principles by ordering a more-intrusive result 

than the Amendment authorizes, (3) fashioned a remedy to 

enforce agency regulations without a sound legal basis for 

such an imposition, (4) showed a profound 

misunderstanding of the difference between substantive and 

procedural rights and their appropriate remedies, (5) cited as 

authority a handful of inapposite out-of-circuit precedents, 

and (6) imposed serious practical costs on the administration 

of immigration proceedings. Judge O’Scannlain concluded 

that, worst of all, the opinion’s imposition of an 

extraordinary remedy wastes everyone’s time, for it does 

nothing but delay the petitioner’s inevitable removal.

ORDER

A judge of the court sua sponte requested a vote on 

whether to rehear this case en banc. A vote was taken, and 

the matter failed to receive a majority of the votes of the 

nonrecused active judges in favor of en banc consideration. 

See Fed. R. App. P. 35(f). Rehearing en banc is DENIED.

PAEZ, Circuit Judge, with whom WARDLAW, Circuit 

Judge joins, concurring in denial of rehearing en banc:

This case began when the United States Coast Guard 

seized Luis Sanchez solely on the basis of his race. The 

critical question before the panel was what, if any, remedy 

existed for Sanchez. We thus confronted a clear case of 

racial profiling—an egregious violation of the Department 

of Homeland Security’s own internal regulation to deter 

unlawful searches and seizures, 8 C.F.R. § 287.8(b)(2). In 
SANCHEZ V. BARR 5

line with the Second Circuit, we held that an egregious 

violation of § 287.8(b)(2) could warrant termination of 

removal proceedings without prejudice and we remanded to 

the agency to afford the Government an opportunity to rebut 

Sanchez’s prima facie case. Sanchez v. Sessions, 904 F.3d 

643, 653–54 (9th Cir. 2018) (citing Rajah v. Mukasey, 

544 F.3d 427, 446–47 (2d Cir. 2008)). Nothing more, 

nothing less. This limited but tailored remedy ensures that 

immigration officers are held accountable for violating rules 

that are meant to “safeguard” individuals’ fundamental 

rights. INS v. Lopez-Mendoza, 468 U.S. 1032, 1044 (1984). 

Even the Government agreed that remand, not rehearing en 

banc, was the appropriate next step for Sanchez’s case.

Judge O’Scannlain’s separate statement attempts to 

obscure the core issue—the egregious regulatory violation—

with the smokescreen of the exclusionary rule.1 His quarrel 

with our opinion, however, rests on a mischaracterization of 

decades of precedent that this court has wisely sidestepped. 

I therefore concur in the court’s denial of rehearing en banc 

and respectfully but firmly reiterate a few points in response 

to errors in Judge O’Scannlain’s statement.

 1 Judge O’Scannlain’s reliance on Lopez-Mendoza is particularly 

telling as it illustrates a misunderstanding of the case law. In holding 

that the Fourth Amendment does not generally apply to civil immigration 

proceedings, the Supreme Court relied in part on the fact that the agency 

“has developed rules restricting stop, interrogation, and arrest practices.” 

468 U.S. at 1044–45. Moreover, the Court stated that it was not 

addressing a regulatory violation because “no challenge [wa]s raised 

here to the [agency]’s own internal regulations.” Id. at 1050. Thus, 

Lopez-Mendoza explicitly left open the question of how courts should 

address regulatory violations in this context.
6 SANCHEZ V. BARR

***

As a preliminary matter, there is no dispute that Sanchez 

made a prima facie showing of a violation of § 287.8(b)(2): 

he was detained solely on the basis of his Latino appearance 

and hence, without “reasonable suspicion,” as required by 

the regulation.2 As detailed in our opinion, the Coast Guard 

detained Sanchez and his three companions, including a 14-

month-old child, after they called 911 for assistance when 

they were stranded on a fishing trip from Channel Islands 

Harbor. Without reasonable suspicion, the Coast Guard 

contacted Customs and Border Protection to report “the 

possibility of 4 undocumented worker[] aliens,” which 

ultimately led to Sanchez’s arrest, interrogation and removal 

proceedings. Looking to past cases involving regulatory 

violations, we joined the Second Circuit to hold that 

petitioners like Sanchez may be entitled to termination of 

their removal proceedings without prejudice for egregious 

regulatory violations.3 Sanchez, 904 F.3d at 653 (citing 

 2 The regulation provides: “[i]f the immigration 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, the 

immigration officer may briefly detain the person for questioning.” 

8 C.F.R. § 287.8(b)(2).

3 Judge O’Scannlain’s attempt to sidestep the holding of Rajah is 

unconvincing. The plain language of Rajah identifies termination as an 

appropriate remedy for “pre-hearing,” “conscience-shocking” regulatory 

violations. 544 F.3d at 447. Rajah therefore expressly allows for 

termination in Sanchez’s case because racial profiling is “conscienceshocking” and egregious. Sanchez, 904 F.3d at 656 (citing, inter alia, 

City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989) (Scalia, 

J., concurring)). Moreover, subsequent cases in the Second Circuit have

faithfully applied the Rajah framework. Maldonado v. Holder, 763 F.3d 

155, 163 (2d Cir. 2014). The fact that the Second Circuit has identified 
SANCHEZ V. BARR 7

United States v. Calderon-Medina, 591 F.2d 529 (9th Cir. 

1979); Rajah, 544 F.3d at 446–47).

Contrary to Judge O’Scannlain’s assertions, we did not 

pull such a remedy out of thin air. As we mapped out, see 

Sanchez, 904 F.3d at 653–55, the theory behind termination 

without prejudice can be traced back to our 1979 decision in 

Calderon-Medina, which established that regulatory 

violations could “invalidate a deportation proceeding” if 

“the regulation serves a purpose of benefit” to the immigrant 

and “the violation prejudiced interests” which were 

protected by the regulation.4 591 F.2d at 531. The remedy 

turns on when the violation occurred and to what degree, 

not—as Judge O’Scannlain claims—what part of the 

Constitution is implicated. See Sanchez, 904 F.3d at 655 

(concluding that for the rare subset of cases involving prehearing regulatory violations, “[o]nly full termination of the 

proceedings without prejudice can ‘effectively cure[] any 

procedural defect by putting the parties into the position they 

would have been had no procedural error taken place.’” 

(citation omitted)). We need not look further than our 

discussion in Calderon-Medina: “the basis for such reversals 

is not . . . the Due Process Clause, but rather a rule of 

administrative law.” 591 F.2d at 531 (citing Mendez v. INS, 

 

the remedy but not yet applied it illustrates, not the non-existence of the 

remedy, but rather, the difficulty that petitioners face in making a prima 

facie showing of an egregious violation.

4 This remedy has since been endorsed, in one form or another, by 

several of our sister circuits, as well as the Board of Immigration 

Appeals. See, e.g., Montilla v. INS, 926 F.2d 162, 166–68 (2d Cir. 1991); 

Leslie v. Attorney Gen., 611 F.3d 171, 180 (3d Cir. 2010); CastanedaDelgado v. INS, 525 F.2d 1295, 1302 (7th Cir. 1975); Yui Fong Cheung 

v. INS, 418 F.2d 460, 465 (D.C. Cir. 1969); Matter of Garcia-Flores, 

17 I. & N. Dec. 325, 328–29 (BIA 1980).
8 SANCHEZ V. BARR

563 F.2d 956, 959 (9th Cir. 1977)). Thus, the core inquiry 

is whether the regulation serves a “purpose of benefit” to the 

petitioner. Id.

This approach is consistent with the Supreme Court’s 

long-standing concern for regulatory violations that 

implicate fundamental rights. See Bridges v. Wixon, 

326 U.S. 135 (1945); United States ex rel. Accardi v. 

Shaughnessy, 347 U.S. 260 (1954); see also United States v. 

Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014). And this 

is where the Fourth Amendment comes into play. Because 

§ 287.8 (b)(2) reflects the Fourth Amendment guarantee 

against unreasonable searches and seizures, the panel 

opinion concludes that the regulation was promulgated for 

the benefit of immigrant petitioners. Sanchez, 904 F.3d 

at 651–52. As Judge O’Scannlain acknowledges, our 

authority to compel an agency to follow its own regulations 

must have its source in the Constitution itself or some federal 

statute. Op. Respecting Denial at 18 (citing United States v. 

Caceres, 440 U.S. 741, 749–55 (1979)). The upshot of 

Caceres is that “[a] court’s duty to enforce an agency 

regulation is most evident when compliance with the 

regulation is mandated by the Constitution or federal law.” 

Id. at 749. The regulation at issue here no doubt implicates 

constitutional rights, thereby triggering our duty to ensure 

agency compliance.

Yet, Judge O’Scannlain insists that we have no authority 

to address the Government’s egregious violation of 

§ 287.8(b)(2) and opines that the remedy we ordered would 

do nothing but delay Sanchez’s “inevitable removal.” This 

completely misses the essence of Sanchez’s claim and the 

harm he seeks to remedy. There is more at stake than the 

outcome of a single case. See Montilla, 926 F.2d at 170. 

“Careless observance by an agency of its own administrative 
SANCHEZ V. BARR 9

processes weakens its effectiveness in the eyes of the public 

because it exposes the possibility of favoritism and of 

inconsistent application of the law.” Id. at 169 (citing 

McKart v. United States, 395 U.S. 185, 195 (1969)). In the 

context of this case, slap-on-the-wrist repudiations that 

permit the agency to pick up where it left off despite racial 

profiling do little to safeguard individuals in this country 

from immigration enforcement practices that “teeter[] on the 

verge of ‘the ugly abyss of racism.’” Maldonado, 763 F.3d 

at 174 (Lynch, J., dissenting) (quoting Korematsu v. United 

States, 323 U.S. 214, 233 (1944) (Murphy, J., dissenting)). 

In such circumstances, termination without prejudice may be 

appropriate because it forces the agency to begin anew—a 

remedy that properly recognizes the tainted nature of the 

initial detention and, one hopes, encourages agency 

compliance in the future.

As a final point, Judge O’Scannlain trots out a parade of 

horribles that are unsubstantiated and, at best, hypothetical. 

As the opinion emphasized, termination without prejudice is 

a remedy “reserved for truly egregious cases” of 

immigration enforcement. Sanchez, 904 F.3d at 655. Any 

fears that this remedy will spur crafty lawyers across the 

country to disrupt removal proceedings are belied by the fact 

that the Second Circuit recognized this very remedy in 2008 

and there have been no such harebrained schemes since.

***

The reality of immigration proceedings—with no 

established right to appointed counsel, no right to discovery, 

or any other host of rights implicated in other proceedings—

is that individuals would be hard-pressed to reach the stage 

that Sanchez has in proving a prima facie case of an 

egregious regulatory violation. Because he has met his 

initial burden of showing a racially motivated detention, we 
10 SANCHEZ V. BARR

ordered a narrowly tailored remedy: Sanchez’s removal 

proceedings would be terminated, but only if the 

Government cannot meet its burden of rebutting Sanchez’s 

prima facie showing on remand. Given the procedural 

posture of this case, and all the reasons outlined above and 

in our opinion, the court wisely denied rehearing en banc.

O’SCANNLAIN, Circuit Judge,** with whom 

CALLAHAN, BEA, IKUTA, BENNETT, and R. NELSON, 

Circuit Judges, join, respecting the denial of rehearing en 

banc:

In this deportation proceeding, which commenced over 

eight years ago, our court’s opinion concedes that admissible 

evidence establishes Mexican citizen Luis Enrique 

Sanchez’s removability. Current immigration law therefore 

required the three-judge panel to allow the deportation order 

to take effect. Unsatisfied with such prospect, the panel 

holds instead that Sanchez’s entire removal proceeding now 

must be terminated because he was detained without 

reasonable suspicion—a violation of the Fourth 

Amendment.

Such an absurd result contravenes basic Fourth 

Amendment principles, defies Supreme Court precedent, 

and lacks any basis in our case law (or that of any other 

circuit). Worse, the panel disguises the Fourth Amendment 

 ** As a judge of this court in senior status, I no longer have the power 

to vote on calls for rehearing cases en banc or formally to join a dissent 

from failure to rehear en banc. See 28 U.S.C. § 46(c); Fed. R. App. 

P. 35(a). Following our court’s general orders, however, I may 

participate in discussions of en banc proceedings. See Ninth Circuit 

General Order 5.5(a).
SANCHEZ V. BARR 11

harm as a “regulatory violation” to work a simple and 

obvious end-run around it. At bottom, the panel fails to grasp 

that Fourth Amendment wrongs warrant Fourth Amendment 

remedies—nothing less, but nothing more. This case has 

languished for almost a decade, and now the government is 

reduced to restarting deportation proceedings, using the 

same evidence to achieve the same outcome that the 

Immigration Judge (“IJ”) ordered in 2011. Our court should 

have reheard this case en banc to correct the panel’s errant 

decision, a very unfortunate precedent with troublesome 

consequences for our immigration jurisprudence.

I

The facts are straightforward.1 Luis Enrique Sanchez is 

a citizen of Mexico who entered the United States without 

inspection in 1988. In 2004, Sanchez applied for and 

received “Family Unity Benefits” from the United States 

Citizenship and Immigration Service (“USCIS”), which 

temporarily authorized him to live and to work in the United 

States. USCIS later denied Sanchez’s request for an 

extension of these benefits in 2008, and at that point he no 

longer enjoyed lawful status to remain in the United States.

In February 2010, Sanchez and three others were 

marooned off the coast of California when their fishing 

boat’s engine lost power. The Coast Guard towed their boat 

into port, demanded identification documents, and detained 

them for two hours until Customs and Border Protection 

(“CBP”) officers arrived. The CBP officers took Sanchez to 

a CBP facility, interrogated and strip-searched him, and then 

released him. The officers prepared a Form I-213 (Record of 

 1 The facts in this Section are drawn from the opinion. See Sanchez 

v. Sessions, 904 F.3d 643, 646–49 (9th Cir. 2018).
12 SANCHEZ V. BARR

Deportable/Inadmissible Alien), which included Sanchez’s 

express admission to them that he had entered the United 

States without inspection and was undocumented.

In November 2010, the Department of Homeland 

Security (“DHS”) issued a Notice to Appear and charged 

Sanchez with being removable. To prove Sanchez’s 

removability, the government relied on both the Form I-213 

prepared by the CBP officers and on Sanchez’s prior 

application for Family Unity Benefits. Sanchez sought to 

have the Form I-213 suppressed and to have his removal 

proceedings terminated. He argued that his detention by 

CBP officers was based solely on race in contravention of 

the Fourth Amendment and 8 C.F.R. § 287.8(b), which 

requires arresting officers to possess a “reasonable 

suspicion” of the person’s unlawful presence.2

The IJ denied the motion and ordered Sanchez removed. 

In 2014, the Board of Immigration Appeals (“BIA”) 

dismissed Sanchez’s appeal, leaving the deportation order in 

place. It concluded that, regardless of whether the Form 

I-213 should have been suppressed, the government could 

use “independent evidence . . . to establish his nationality 

and identity.” See Sanchez v. Sessions, 904 F.3d 643, 648 

 2 The Fourth Amendment provides: “The right of the people to be 

secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated . . . .” U.S. Const. amend. IV.

The relevant regulation provides: “If the immigration 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, the 

immigration officer may briefly detain the person for questioning.” 

8 C.F.R. § 287.8(b)(2).
SANCHEZ V. BARR 13

(9th Cir. 2018). Sanchez timely petitioned for review in our 

court in 2014.3

II

Sanchez contends specifically that the Coast Guard 

detained him based on his Latino appearance in violation of 

the Fourth Amendment and 8 C.F.R. § 287.8(b). The threejudge panel agreed, but instead of holding merely that the 

evidence obtained from the arrest should have been 

suppressed, its opinion orders the entire deportation 

proceeding terminated. The opinion’s irredeemable flaw is 

its attempt to cure an illegal arrest—a quintessential Fourth 

Amendment violation—with a remedy that the Fourth 

Amendment would never authorize.

A

If Sanchez’s Fourth Amendment rights were violated, 

then he is indeed entitled to a Fourth Amendment remedy. 

Under our circuit’s case law, Sanchez may (and indeed did) 

seek the exclusion of wrongfully obtained evidence from his 

immigration proceedings. See, e.g., Lopez-Rodriguez v. 

Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008).4 But here, as 

 3 A word of explanation regarding the inordinate delay in this case’s 

resolution. Although briefing in our court was completed in March 2015, 

the case was not argued until March 2017. In August of the same year, a 

reasonable time after argument, the panel issued its decision. See 

Sanchez v. Sessions, 870 F.3d 901 (9th Cir. 2017). After the tragic 

passing of a member of the initial three-judge panel, a re-constituted 

panel withdrew the original opinion in July 2018 and filed the revised 

opinion at issue here in September 2018. A call to rehear the case en banc 

failed.

4 I continue to believe that our application of the exclusionary rule 

in civil deportation proceedings flouts the Supreme Court’s decision in 
14 SANCHEZ V. BARR

the panel reluctantly concedes, the brute fact is that 

suppression does him no good: the government possesses 

independent (and constitutionally firm) evidence 

establishing Sanchez’s unlawful status. See Sanchez, 

904 F.3d at 653. Eager to give Sanchez some relief, however, 

the panel stretches our case law beyond recognition. Instead 

of suppression of the unlawfully obtained document, the 

panel awarded him “termination without prejudice,” thus 

mandating commencement of a new round of removal 

proceedings with another hearing before the IJ, another 

appeal to the BIA, and another petition for review to our 

court—potentially another eight years of safe haven in the 

United States. Id. at 657.

The opinion seems to invoke a straightforward 

compensatory-justice theory. Sanchez’s initial detention, the 

opinion reasons, resulted from racial profiling, so the 

subsequent deportation proceeding was “tainted from [its] 

roots.” Id. at 655 (internal quotation marks omitted). Thus, 

only “full termination of the proceedings without prejudice 

can effectively cure any procedural defect by putting the 

parties into the position [in which] they would have been had 

no procedural error taken place.” Id. (internal quotation 

marks omitted). Stated differently, the opinion purports to 

restore Sanchez to his rightful position by washing away the 

“taint” of his unlawful arrest. To do so, it prescribes a 

government “do-over,” now nine years after the first round 

 

INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). See Lopez-Rodriguez v. 

Holder, 560 F.3d 1098, 1106 (9th Cir. 2009) (Bea, J., dissenting from 

the denial of rehearing en banc) (arguing that “our precedent has set us

on a collision course with the Supreme Court” by incorporating “the 

exclusionary rule, with all its attendant costs, back into immigration 

proceedings, after the Court has taken it out”). Here, the panel works a 

radical and unwarranted expansion of our already dubious precedent.
SANCHEZ V. BARR 15

started, as if the entire eight-year-long deportation 

proceeding had never occurred.

B

Such approach fails. The Fourth Amendment does not

authorize a court, for example, to invalidate an arrest, 

prosecution, or subsequent proceeding simply because it 

resulted from such a violation. See United States v. 

Morrison, 449 U.S. 361, 366 (1981) (“[W]e have not 

suggested that searches and seizures contrary to the Fourth 

Amendment warrant dismissal of the indictment.”). Such 

limitation makes sense. The Fourth Amendment safeguards 

the substantive rights to “privacy and security.” Carpenter v. 

United States, 138 S. Ct. 2206, 2213 (2018) (internal 

quotation marks omitted). It does not establish a right to be 

free from prosecution for crimes committed—even if such 

prosecution results from an illegal search. See United States 

v. Leon, 468 U.S. 897, 906 (1984) (“[T]he use of fruits of a 

past unlawful search or seizure works no new Fourth 

Amendment wrong.” (internal quotation marks omitted)).

The Supreme Court’s application of the exclusionary 

rule confirms the correct approach. Because a Fourth 

Amendment violation is “fully accomplished by the 

unlawful search and seizure,” trial remedies like the 

exclusionary rule are “neither intended nor able to cure” the 

constitutional harm. Id. (internal quotation marks omitted). 

As such, exclusion is not designed to restore the defendant 

to his pre-violation position, but rather to deter future 

violations by offering him a windfall (i.e., the exclusion of 

incriminating evidence at trial). See Hudson v. Michigan, 

547 U.S. 586, 591 (2006). Just as with the exclusionary rule 

itself, however, the panel’s novel termination remedy does 

not “cure” the initial unlawful arrest. Thus, the opinion’s 

core premise—that termination washes away the “taint” of 
16 SANCHEZ V. BARR

the government’s initial violation—contravenes the proper 

application of the Fourth Amendment.

To illustrate, consider whether the panel’s theory would 

make any sense in a criminal proceeding. Suppose that a 

citizen is unconstitutionally detained because of his race, but 

law enforcement officials also discover—because of 

evidence obtained independently of such arrest—that he 

committed a drug crime and charge him accordingly. The 

exclusionary rule, of course, would not compel the 

suppression of the “independently acquired” evidence. Utah 

v. Strieff, 136 S. Ct. 2056, 2061 (2016). Could the court 

instead dismiss the criminal indictment because the illegal 

arrest tainted the criminal proceeding that followed? Could 

the court order the defendant to be released from custody? 

Of course not. See Morrison, 449 U.S. at 366 (“The [Fourth 

Amendment] remedy in the criminal proceeding is limited to 

denying the prosecution the fruits of its transgression.”). 

Indeed, the panel does not cite a single case that terminates 

a criminal proceeding for such a reason. And if termination 

of proceedings would be unavailable in a criminal 

prosecution, then it should be inconceivable in a civil 

deportation proceeding.

Perhaps aware that Fourth Amendment doctrine 

forecloses its reasoning, the panel alludes instead to a 

separate justification for its remedy: deterrence. See 

Sanchez, 904 F.3d at 655; see also Paez Concurrence at 8–9.

But whether such remedy will prevent future violations 

against other aliens has nothing to do with restoring Sanchez 

to his rightful position. Worse, the panel’s indistinct 

reference to the remedy’s deterrence value rests on 

contestable empirical assumptions, and the panel makes no 

effort to show that such benefits outweigh the costs. Cf. INS 

v. Lopez-Mendoza, 468 U.S. 1032, 1040–50 (1984) 
SANCHEZ V. BARR 17

(balancing the benefits and costs of the exclusionary rule in 

deportation proceedings). Besides, the panel’s subtle 

reliance on deterrence smuggles in the very reasoning that 

drives the Court’s application of the exclusionary rule—

reinforcing, yet again, that the Fourth Amendment should 

guide this case’s resolution.

C

Lopez-Mendoza, the Supreme Court’s leading case on 

the application of the Fourth Amendment to civil deportation 

proceedings, also repudiates the panel’s reasoning. There, 

government agents arrested Lopez-Mendoza “at his place of 

employment” even though the “agents had not sought a 

warrant to search the premises or to arrest any of its 

occupants.” Id. at 1035. Below, he “objected only to the fact 

that he had been summoned to a deportation hearing 

following an unlawful arrest.” Id. at 1040. Nevertheless, the 

Supreme Court upheld the IJ’s removal order because the 

“mere fact of an illegal arrest has no bearing on a subsequent 

deportation proceeding.” Id. at 1041 (emphasis added and 

brackets and internal quotation marks omitted).

Lopez-Mendoza rejects the opinion’s core premise. Here 

too, Sanchez’s illegal arrest has “no bearing” on his removal 

proceeding. Consequently, the arrest cannot “taint[]” the 

proceeding “from [its] roots.” Sanchez, 904 F.3d at 655

(internal quotation marks omitted). The panel ignores the 

fact that the Supreme Court has expressly rejected the very 

theory on which it relies.

III

To avoid the Fourth Amendment’s doctrinal dead-end, 

the panel mysteriously claims that its remedy seeks to cure 

only a “regulatory violation”—not a violation of the Fourth 
18 SANCHEZ V. BARR

Amendment itself. See Sanchez, 904 F.3d at 653–55. The 

relevant regulation states that an immigration officer may 

“detain [a] person for questioning” if the officer has a 

“reasonable suspicion . . . that the person being questioned 

is . . . an alien illegally in the United States.” 8 C.F.R. 

§ 287.8(b)(2). The panel reasons that the Coast Guard’s 

violation of § 287.8(b)(2)—again, Sanchez’s detention on 

the basis of race—estops the government from continuing 

the proceeding.

But § 287.8(b)(2), as the opinion notes, exists simply to 

“effectuate” the Fourth Amendment and “all but parrots” its 

requirements. Sanchez, 904 F.3d at 651, 652 n.9; see also 

Paez Concurrence at 8. We may not launder Fourth 

Amendment violations through agency regulations to 

authorize a remedy that the Fourth Amendment would never 

allow. The panel’s decision to order the government to 

terminate deportation proceedings because of a regulatory 

violation is unsustainable in theory and unfounded in 

precedent.5

A

Let’s begin with a first principle that the opinion 

obscures: our authority to compel an agency to follow its 

own regulations must have its source in the Constitution 

itself or some federal statute. See United States v. Caceres, 

 5 One need not dwell on the opinion’s specific doctrinal test because 

its errors are so much more fundamental. But for ease of reference, it 

held that a petitioner should receive such termination remedy if: “(1) the 

agency violated a regulation, (2) the regulation was promulgated for the 

benefit of petitioners; and (3) the violation was egregious, meaning that 

it involved conscience-shocking conduct, deprived the petitioner of 

fundamental rights, or prejudiced the petitioner.” Sanchez, 904 F.3d 

at 655.
SANCHEZ V. BARR 19

440 U.S. 741, 749–55 (1979) (refusing to compel an agency 

to follow its own regulation because such regulations were 

not “required by the Constitution or by statute,” and because 

neither the Fourth Amendment, the Due Process Clause, nor 

the Administrative Procedure Act authorized the Court to 

enforce compliance). We lack a roving commission to seek 

out and to redress every wrong inflicted by the Executive 

Branch, remediating instead only specific legal wrongs with 

the specific remedies authorized by federal law.

Unfortunately, the opinion never bothers to identify the 

legal basis for its “regulatory violation” theory. Certainly, 

the panel invokes the Constitution when it observes that the 

violated regulation “effectuate[s] the Fourth Amendment.” 

Sanchez, 904 F.3d at 652 n.9; see also id. at 651 (regulation 

“all but parrots” Fourth Amendment standards); id. at 652 

(regulation “reflects the Fourth Amendment’s 

requirements”); id. at 656 n.15 (regulation “is premised on 

Fourth Amendment standards”). Yet the Fourth Amendment 

itself cannot sustain the panel’s holding. Which raises the 

question: what is the legal basis for the panel’s remedy?

It cannot be the “Fifth Amendment due process 

guarantee that operates in removal proceedings.” Chuyon 

Yon Hong v. Mukasey, 518 F.3d 1030, 1035 (9th Cir. 2008). 

The Due Process Clause promises aliens the “full and fair” 

opportunity to assert the right to remain in the United States. 

Montes-Lopez v. Holder, 694 F.3d 1085, 1092 (9th Cir. 

2012) (internal quotation marks omitted). But here,

Sanchez’s unlawful arrest has no effect at all on the 

deportation proceeding itself. His illegal arrest does not 

infringe upon his ability to offer evidence, to obtain counsel, 

or to make his case before the IJ. No legal support there!

Nor is it the Immigration and Nationality Act, see 8 

U.S.C. § 1252, or “a rule of administrative law,” United 
20 SANCHEZ V. BARR

States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 

1979); see also Bd. of Curators of Univ. of Mo. v. Horowitz, 

435 U.S. 78, 92 n.8 (1978) (stating that cases mandating 

agency compliance with their own regulations “enunciate 

principles of federal administrative law rather than of 

constitutional law”). Indeed, the otherwise-thorough opinion 

does not include a single sentence of textual analysis 

demonstrating that § 1252 authorizes us to order the 

government to restart deportation proceedings because of an 

initial unlawful arrest. Likewise, the panel cannot claim to 

articulate some new rule of administrative common law 

because its holding is incompatible with our treatment of 

other administrative agencies. See Caceres, 440 U.S. at 749–

55.

In sum, the panel’s inability to identify the legal basis for 

its remedy is telling, as it suggests that there isn’t one. 

Instead, the gravamen of Sanchez’s complaint is that the 

government violated the Fourth Amendment—not his due 

process rights, not a statutory right, not some rule of 

administrative law, and not an unidentifiable potpourri of 

protected interests. But if this case involves a Fourth 

Amendment wrong, it should be controlled by Fourth 

Amendment jurisprudence. Those principles, however, 

unambiguously foreclose the panel’s extravagant remedy.

B

Unsurprisingly, no other court has imposed such a 

remedy. Indeed, the panel does not identify a single decision 

in which a federal court actually required termination of 

proceedings when a regulatory violation invaded Fourth 

Amendment interests. Instead, the panel scrounges up a 

single Ninth Circuit case concerning a deprivation of a 

procedural (not substantive) right in a criminal proceeding, 

see Calderon-Medina, 591 F.2d at 529; a BIA decision that 
SANCHEZ V. BARR 21

(needless to say) is not precedent at all, see Matter of GarciaFlores, 17 I. & N. Dec. 325 (BIA 1980); a Second Circuit 

opinion that it over-reads, see Rajah v. Mukasey, 544 F.3d 

427 (2d Cir. 2008); and a smattering of inapposite out-ofcircuit decisions. See Sanchez, 904 F.3d at 654–55.

The bulk of the cases it cites in support of its theory 

concern regulations offering procedural protections that 

ensure constitutionally (or statutorily) mandated 

adjudicative due process.6 But such procedural protections 

differ in kind from the substantive interests protected by the 

regulation in this case. Because the violation of a procedural 

right (e.g., the right to counsel) increases the risk of 

erroneous deportation, such violation might require a new 

proceeding with the procedural protection restored. Cf.

Morrison, 449 U.S. at 364–65 (describing the Court’s 

approach to Sixth Amendment remedies). By contrast, the 

regulation in this case—like the Fourth Amendment itself—

safeguards each person’s substantive right to privacy. Thus, 

it makes no sense to draw on cases involving defects in the 

proceedings themselves to address an unlawful arrest.

The panel’s resort to Rajah—which did concern 

regulations designed to effectuate the Fourth Amendment—

fares no better. The panel claims that the Second Circuit held 

that “petitioners may be entitled to termination of their 

removal proceedings without prejudice for egregious 

regulatory violations.” Sanchez, 904 F.3d at 953 (citing 

Rajah, 544 F.3d at 446–47). But Rajah does not go that far. 

 6 See Snajder v. INS, 29 F.3d 1203, 1206 (7th Cir. 1994) (right to 

counsel); Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993) (right to 

counsel); Montilla v. INS, 926 F.2d 162, 166 (2d Cir. 1991) (right to 

counsel); Calderon-Medina, 591 F.2d at 530 (right to communicate with 

consular or diplomatic officers); Castaneda-Delgado v. INS, 525 F.2d 

1295, 1302 (7th Cir. 1975) (right to counsel).
22 SANCHEZ V. BARR

Although the Second Circuit suggested that in some other

case a showing of “prejudice,” “conscience-shocking 

conduct,” or a “deprivation of fundamental rights” might

justify termination of proceedings, it did not give any 

examples of such a circumstance. Rajah, 544 F.3d at 447.

Moreover, Rajah cites to no legal authority for imposing 

such a remedy when the violated regulation effectuates the 

Fourth Amendment; instead, like the opinion here, it relies 

only on inapposite cases involving procedural protections. 

See id. (citing Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 

1993); Montilla v. INS, 926 F.2d 162, 166 (2d Cir. 1991)). 

Rajah cannot support the panel’s innovation.

IV

Finally, the panel’s opinion creates a host of practical 

problems.

A

First, the termination-of-proceedings rule creates 

perverse incentives for aliens and immigration lawyers to 

inject inefficiency into deportation proceedings. The opinion 

offers a windfall (termination of proceedings, no less) to 

those who can show that immigration officials violated their 

own regulations during the investigation, detention, and 

removal proceedings—even if such violations had no effect

on the proceedings that followed. Lingering on such 

technicalities, however, ignores the Supreme Court’s 

instruction that “[p]ast conduct is relevant only insofar as it 

may shed light on the respondent’s right to remain.” LopezMendoza, 468 U.S. at 1038 (emphasis added).

At the same time, the panel’s theory could deter the 

government from formulating “additional standards to 

govern prosecutorial and police procedures.” Caceres, 
SANCHEZ V. BARR 23

440 U.S. at 755–56. The conclusion that regulatory 

violations authorize federal courts to terminate otherwisemeritorious removal proceedings could give the government 

reason to scrub from the books any regulations that benefit 

aliens. Perversely, then, the opinion’s holding may help 

Sanchez only to deprive all other aliens of the benefits of the 

government’s “own comprehensive scheme for deterring 

Fourth Amendment violations by its officers.” LopezMendoza, 468 U.S. at 1044.

B

The panel’s novel termination-of-proceedings remedy 

also invites a wave of litigation to map its metes and bounds. 

The initial question, of course, is what exactly “termination 

without prejudice” means. Sanchez, 904 F.3d at 657. The 

BIA will undoubtedly dismiss proceedings, but DHS could 

then serve Sanchez with a new Notice to Appear and start all 

over again. The opinion offers Sanchez nothing more than a 

meaningless formality before his inevitable removal.

Perhaps, however, the panel has something more drastic 

in mind. Its reasoning, after all, is that the remedy must put 

Sanchez into his rightful position as if “no procedural error 

[had] taken place.” Id. at 655 (internal quotation marks 

omitted). Such reasoning sets up a counter-factual in which 

Sanchez was never detained, never interrogated, and never 

issued the Notice to Appear. Must the BIA tear up the Form 

I-213 about Sanchez? Delete all records of him from the 

government’s databases? Order each implicated government 

official to forget everything he ever knew about Sanchez? 

Doubtless, enterprising lawyers will seize on the opinion’s 

extravagant reasoning to seek still-more intrusive remedies 

in civil deportation proceedings. We should not invite their 

spurious arguments.
24 SANCHEZ V. BARR

C

I also fear that the decision may not be limited to the 

immigration context. The opinion introduces a glaring 

discontinuity between civil removal proceedings on the one 

hand and other administrative proceedings and criminal 

prosecutions on the other. The opinion’s holding allows 

aliens who suffer regulatory violations to reap a windfall not 

present in any analogous area of law.

A criminal defendant convicted on the basis of illegally 

obtained evidence or a coerced confession has no similar 

opportunity. He can ask for a new trial with the improperly 

obtained evidence suppressed, but he cannot demand that the 

court quash his indictment. Likewise, in administrative 

contexts, a party can challenge an enforcement action based 

on procedural failures by the agency. But courts do not 

enjoin the agency from altogether enforcing the law against 

the regulated party. I am sure that criminal defendants and 

civil litigants would much prefer that courts dismissed their 

cases too. When they ask our court to punish regulatory 

failures the same way in other contexts, how can we deny 

them the same windfall?

V

This case should have been simple. The sole question in 

a deportation proceeding is whether the alien has a “right to 

remain in this country in the future.” Lopez-Mendoza, 

468 U.S. at 1038. Here, the government can establish 

Sanchez’s unlawful status with admissible evidence, so the 

BIA correctly affirmed the IJ’s removal order.

Instead, the panel’s refusal to accept this outcome has 

produced a decision that (1) defies the Supreme Court’s 

decision in Lopez-Mendoza, (2) ignores basic Fourth 
SANCHEZ V. BARR 25

Amendment principles by ordering a more-intrusive result 

than the Amendment authorizes, (3) fashions a remedy to 

enforce agency regulations without a sound legal basis for 

such an imposition, (4) shows a profound misunderstanding 

of the difference between substantive and procedural rights 

and their appropriate remedies, (5) cites as authority a 

handful of inapposite out-of-circuit precedents, and 

(6) imposes serious practical costs on the administration of 

immigration proceedings.

Worst of all, the opinion’s imposition of an extraordinary 

remedy wastes everyone’s time, for it does nothing but delay 

the petitioner’s inevitable removal. The en banc process 

exists to ensure the sound development of our circuit’s case 

law, and we should have used it here to correct the panel’s 

extravagant and erroneous decision.