**11-4916-ag** Doroteo Sicajau Cotzojay v. Holder 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August Term, 2012 8 9 (Argued: March 14, 2013 Decided: July 31, 2013) 10 11 Docket No. 11-4916-ag 12 13 14 DOROTEO SICAJAU COTZOJAY, 15 16 Petitioner , 17 18 v. 19 20 ERIC H. HOLDER, JR., 21 UNITED STATES ATTORNEY GENERAL, 22 23 Respondent

. 24 25 26 27 28 Before: 29 30 WESLEY , DRONEY , Circuit Judges, NATHAN , District Judge

. * 31 32 Petitioner Doroteo Sicajau Cotzojay (“Sicajau”) appeals 33 from the October 31, 2011 decision of the Board of 34 Immigration Appeals (the “BIA”) dismissing Sicajau’s appeal 35 from the Immigration Judge’s (the “IJ”) July 17, 2009 order 36 of removal and the IJ’s April 21, 2009 oral decision denying 37

*The Honorable Alison J. Nathan, of the United States District Court for the Southern District of New York, sitting by designation.Sicajau’s motion to suppress the Government’s evidence of 1 alienage. Immigration and Customs Enforcement (“ICE”) 2 officers obtained this evidence during an April 2007 3 nighttime, warrantless raid on Sicajau’s home. The IJ 4 denied Sicajau’s motion to suppress after finding that 5 Sicajau had not shown that ICE officers entered his home 6 without consent and that, regardless, the ICE officers’ 7 conduct was not sufficiently “shocking” to qualify as 8 egregious and require application of the exclusionary rule 9 in this civil removal proceeding. The BIA affirmed the 10 denial of Sicajau’s motion to suppress and the subsequent 11 order of removal. Because we find that the IJ erroneously 12 interpreted our case law to require physical threat or harm 13 before a Fourth Amendment violation becomes sufficiently 14 egregious to require suppression, and thus erred by refusing 15 to shift the burden of proof to show consent to the 16 Government, we**VACATE**and **REMAND**the BIA’s decision 17 affirming the IJ’s denial of Sicajau’s motion to suppress 18 and order of removal. 19
VACATED AND REMANDED. 20
21 22 HEATHER Y. AXFORD (Anne Pilsbury, Alexandra 23 Goncalves-Peña, on the brief ), Central 24 American Legal Assistance, Brooklyn, NY, for 25 Petitioner. 26 27 NICOLE THOMAS-DORRIS, Trial Attorney, Office of 28 Immigration Litigation, Civil Division (Stuart 29 F. Delery, Acting Assistant Attorney General, 30 Civil Division, Mary Jane Candaux, Assistant 31 Director, on the brief ), United States 32 Department of Justice, Washington, DC, for 33 Respondent

. 34 35 Nancy Morawetz, Nikki Reisch, Legal Intern, 36 Washington Square Legal Services, Immigrant 37 Rights Clinic, New York, NY, for Amici Curiae 38 Lutheran Social Services of New York, Families 39 for Freedom, New Sanctuary Coalition of New 40 York City

. 41 42

2WESLEY , Circuit Judge : 1 On April 16, 2007, at approximately 4:00 a.m., 2 Petitioner Doroteo Sicajau Cotzojay (“Sicajau”) 1awoke to 3 hear people knocking on windows and doors at the duplex that 4 he shared with approximately twenty people in Riverhead, New 5 York. 2The individuals surrounding Sicajau’s home 6 identified themselves as police or probation officers and 7 asked to speak with a man named Jose Cojon (“Cojon”). The 8 “officers” were Immigration and Customs Enforcement (“ICE”) 9 officers. Sicajau observed Cojon (who lived in the next 10 room) leave the house with his passport. The door to the 11 house then closed behind him. Sicajau remained in his 12 bedroom on the first floor of the house with his door 13 locked. He heard steps on the first floor and then heard 14 people pounding on his bedroom door. Fearing that officers 15 would force their way into his room, Sicajau opened the 16 door. Armed ICE officers entered the room, placed Sicajau 17 18

1 Petitioner’s attorney refers to him as “Sicajau.”

2The factual record in this case is limited to Sicajau’s affidavit and testimony before the IJ and the testimony of one of his neighbors, Jose Anibal Ochoa. The Government did not submit any affidavits or witnesses directly addressing the circumstances of Petitioner’s arrest. 3in handcuffs and took him to the living room, where he was 1 searched and instructed to remain on the floor. 2 The officers asked Sicajau for identification and 3 rejected his high school identification card – Sicajau had 4 recently turned twenty years old. They then took him back 5 to his bedroom and searched through the contents of his 6 drawers until they located his Guatemalan passport. ICE 7 officers loaded Sicajau and the majority of the people who 8 lived at the duplex into a van **.** The officers drove the van 9 to another house where they arrested several more people 10 before proceeding to a McDonald’s, where the officers had 11 breakfast; the officers told Sicajau and the detainees in 12 the van they could relieve themselves in the restaurant 13 parking lot if the need arose. 14 ICE officers took Sicajau to 26 Federal Plaza in New 15 York City and placed him in a cell. He was given a sandwich 16 and a bottle of water. Subsequently, officers took 17 Sicajau’s photograph and his fingerprints before questioning 18 him in English (which he does not speak well) about his 19 immigration status and asking him to sign numerous 20 documents. Sicajau was told he “could be in even bigger 21 problems” if he didn’t sign the documents. Joint App’x 149- 22

450. After Sicajau complied and officers completed a Form I1 213, the Record of Deportable/Inadmissible Alien, ICE 2 officers informed Sicajau that he had the right to an 3 attorney. Sicajau was released at approximately 10:00 p.m. 4 that evening. 5 **Prior Proceedings** 6 After the Government instituted removal proceedings, 7 Sicajau filed a motion to suppress the Government’s evidence 8 of alienage, specifically, Sicajau’s Guatemalan passport, 9 the I-213 and the statements memorialized therein, and any 10 other documents seized by, or statements made to, ICE 11 officers. Sicajau argued that ICE officers obtained this 12 evidence in violation of his Fourth and Fifth Amendment 13 rights. Sicajau contended that ICE officers had “forcibly 14 gained entrance” to his home and arrested him without a 15 warrant or probable cause. Id. at 250. In support of his 16 motion to suppress, Sicajau submitted a sworn statement. 17 His affidavit asserted that he was “asleep in [his] bedroom” 18 when he was “suddenly awoken at 4 A.M.” by knocking at his 19 window and voice yelling “‘Police! Open up.’” Id . at 252. 20 Regarding the officers’ initial entry and exit from his 21 home, Sicajau averred that he 22

5opened [his] bedroom door to see what was 1 going on when [he] saw Jose Cojon leaving 2 with a group of armed officers through 3 the main door. After this [Sicajau’s] 4 sister in law closed and locked the front 5 door. [Sicajau] returned to [his] 6 bedroom. 7 8 Id. Sicajau’s affidavit does not explain when or how the 9 officers re-entered the home because he had “decided to stay 10 in [his] room.” Id. 11 In April 2009, Immigration Judge Robert D. Weisel (the 12 “IJ”) held a suppression hearing based on a “preliminary 13 ruling that [Sicajau’s] affidavit alone constituted prima 14 facie evidence” sufficient to entitle Sicajau to a hearing. 15 Id. at 100. However, the IJ was of the view that Sicajau’s 16 affidavit was “not in and of itself sufficient to establish 17 that the right was violated.” Id . The IJ viewed “the 18 purpose of [the] hearing” as “provid[ing] [Sicajau] with the 19 opportunity to testify. He has the burden to establish that 20 there was a violation under the Constitution.” Id. at 130. 21 During the hearing, Sicajau admitted that he “didn’t 22 see how [the officers] came in” when they returned, because 23 he was in his bedroom, but he “heard the steps . . . how 24 they were knocking and trying to get in.” Id. at 151. 25 Sicajau was able to testify to the fact that after Cojon 26

6left the house, one of Sicajau’s friends “closed the door 1 . . . he locked it and closed it with some force **.** ” Id. at 2
139. During cross-examination, the attorney representing 3 the Government inquired about the distinction between 4 Sicajau’s affidavit, in which he stated that his sister-in5 law closed the door behind the officers, and his testimony, 6 during which he said that a friend had shut the door. Id. 7 at 154. Sicajau confirmed that he “saw [his] sister-in-law 8 close the door, [he had] always said [his] sister-in-law and 9 not [his] friends,” but that his brother’s subsequent 10 deportation and the resulting estrangement between his 11 brother and sister-in-law had left him concerned she would 12 not testify on his behalf. Id. at 155, 159-61. 13 Following Sicajau’s testimony, his attorney called 14 another resident of the house, Jose Anibal Ochoa (“Ochoa”), 15 to testify. Ochoa corroborated Sicajau’s statements 16 regarding what time officers arrived at the house. At the 17 time of the raid, Ochoa lived on the second floor of the 18 residence. He described the layout of the duplex and 19 explained that each floor has its own entrance. Although 20 his testimony was not a model of clarity, the IJ and the 21 parties agreed that Ochoa said that the home has an exterior 22

7door that led to two doors, one opening onto the first floor 1 and one at the top of a set of interior stairs opening onto 2 the second floor. Ochoa testified that the officers forced 3 open the exterior door to gain access to the house. Ochoa 4 based this belief on the “banging” he heard and the fact 5 that “no one opened the door for them.” Id. at 190. Ochoa 6 did not see the officers enter the home. 7 The Government produced no witnesses. Instead, the 8 Government rested on an affidavit submitted by Darren 9 Williams (“Williams”), a Supervisory Detention and 10 Deportation Officer with the ICE New York City Fugitive 11 Operations Team **.**Williams did not participate in the raid 12 on Sicajau’s home; his affidavit offered nothing as to the 13 acts of officers who did. Instead, he explained the purpose 14 of two Department of Homeland Security (“DHS”) programs: 15 Operation Return to Sender (“apprehending immigration 16 absconders at large”) and Operation Cross Check (finding and 17 securing “aliens illegally in the United States, fugitive 18 aliens, aliens with criminal records, or aliens posing a 19 threat to the community”). 3 Id. at 229. Williams confirmed 20

3Sicajau was arrested during a raid performed as part of Operation Cross Check. The Petitioners in the companion case we decide today were seized as part of Operation Return to Sender. See Jose Pretzantzin, et al. v. Holder , No. 11-2867-ag, – F.3d –, 8that operations were routinely scheduled to begin in the 1 early morning – but never before 5:30 a.m. – and that 2 officers were “explicitly trained that voluntary consent 3 must be obtained from the occupant of the residence prior to 4 making entry.” Id. at 230-31. Williams stated that 5 officers could question and, if warranted, detain non-target 6 individuals who were encountered during an operation **.** 7 The IJ denied Sicajau’s motion to suppress in an oral 8 decision. The IJ recognized that this Court considers 9 exclusion to be appropriate if an “an egregious violation 10 occurred that was fundamentally unfair or [if] the 11 violation, regardless of its egregiousness or fairness, 12 undermined the reliability of the evidence in dispute.” Id. 13 at 109 (citing Almeida-Amaral v. Gonzalez , 461 F.3d 231 (2d 14 Cir. 2006)). The IJ accurately described the testimony 15 given by Sicajau and Ochoa. However, the IJ concluded that 16 although the ICE officers’ conduct was “not courteous, and 17 was imperfect, and was disrespectful,” id. at 211, Sicajau 18 had not shown that it constituted an egregious Fourth 19 Amendment violation that mandated suppression of alienage 20 evidence obtained during the raid and at 26 Federal Plaza, 21 id. at 110. 22

– (2d Cir. 2013). 9The IJ determined that Sicajau had failed to “offer 1 sufficient facts to establish that the residence was 2 searched without valid consent,” because “[n]either 3 [Sicajau] nor [Ochoa] observed any official enter the 4 dwelling.” Id. at 108. The IJ further noted that Sicajau’s 5 testimony at the hearing varied somewhat from the statements 6 in his affidavit, but the IJ did not appear to give much 7 weight to the discrepancy regarding whether it was Sicajau’s 8 sister-in-law or his friend who closed the door behind Jose 9 Cojon. 4The IJ did not make an explicit finding as to 10 whether he found Sicajau or Ochoa to be credible. 11 Regardless, the IJ determined that even if ICE officers had 12 entered Sicajau’s home without a warrant and without 13

4The IJ seemed more concerned with Sicajau’s description of when and how the door to the home was initially opened and closed. In Sicajau’s affidavit, he stated that he opened his bedroom door to see what was happening; he observed Cojon leave the home. “After this [his] sister in law closed and locked the front door.” Joint App’x 252. During the hearing, Sicajau testified that he left his bedroom for a moment and, through a window, observed Cojon leaving the house. The attorney representing the Government asked Sicajau whether, when he was out of his room, he saw any doors standing open. Id. at 154. Sicajau responded that the doors were closed. Id. The Government’s attorney then asked Sicajau how he knew that his sister-in-law had closed the door if he never saw it open. Id. at 155. Sicajau clarified that he had seen the door open before his sister-in-law closed it. Id. Although the IJ apparently viewed Sicajau’s statements as containing a “marked contrast,” id. at 108, whether Sicajau actually observed the exterior door standing open before his sister-in-law closed it or whether he merely presumed it had been open because he had just seen Cojon depart is not crucial given that Sicajau maintained that the doors were closed after Cojon left the house. 10consent, that fact alone did not yield an egregious Fourth 1 Amendment violation. Because Sicajau was not subjected to 2 physical brutality and was not threatened in a way that 3 “would give him the impression that if he did not comply or 4 obey [the officers’] requests, that he would be in some way 5 severely mistreated, mishandled or punished,” the IJ 6 reasoned that the ICE officers’ conduct was not sufficiently 7 egregious to warrant application of the exclusionary rule in 8 a civil removal hearing. Id. at 110-11. As a result, the 9 IJ refused to suppress any of the evidence or statements 10 obtained by the Government. In July 2009, the IJ ordered 11 Sicajau removed from the United States. 12 The Board of Immigration Appeals (the “BIA”) affirmed. 13 In re Sicajau Cotzojay, No. A097 535 383 (B.I.A. Oct. 31, 14 2011) **.**The BIA determined that the IJ was not required to 15 suppress the Government’s evidence of Sicajau’s alienage 16 because “the ‘egregiousness’ standard ha[d] not been met.” 17 Id. The BIA reasoned that “[t]he facts as alleged by 18 [Sicajau] [we]re insufficient to show that the immigration 19 officers entered his living space without consent”; the BIA 20 emphasized Sicajau’s failure to produce a witness who saw 21 the officers enter the building. Id. The BIA approved of 22 the IJ’s “observations that [Sicajau] did not show that he 23 11was physically mishandled or threatened with harm,” and it 1 found that any Fourth Amendment violation was insufficiently 2 severe to require application of the exclusionary rule. Id. 3 The BIA also rejected Sicajau’s arguments regarding alleged 4 violations of his Fifth Amendment rights and of DHS 5 regulations. Id. 6 Petitioner timely petitioned for review of the BIA’s 7 decision. 8
9 **Discussion**5 10 The IJ provided two bases for his decision that the 11 evidence at issue was not suppressible: first, Petitioner 12 failed to establish a lack of consent; and second, even if 13 the raid was non-consensual, Petitioner failed to establish 14 an egregious violation of his Fourth Amendment rights. The 15 BIA affirmed both of the IJ’s decisions. For the reasons 16 discussed below, the Court concludes that the IJ erred on 17

5The standard of review is neither contested nor determinative. “When the BIA does not expressly ‘adopt’ the IJ’s decision, but ‘its brief opinion closely tracks the IJ’s reasoning,’ this Court may consider both the IJ’s and the BIA’s opinions ‘for the sake of completeness.’” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (quotingWangchuck v. DHS , 448 F.3d 524, 528 (2d Cir. 2006)). We review the agency’s factual findings for substantial evidence, id. , and questions of law de novo , Diallo v. INS , 232 F.3d 279, 287 (2d Cir. 2000). 12both levels. It was error to find that Sicajau’s 1 submissions were insufficient to shift the burden to the 2 Government to establish consent. It was also error to 3 conclude that the facts alleged, even accepted as true, were 4 insufficient to yield an egregious Fourth Amendment 5 violation requiring suppression. 6 **Burden of Proof** 7 The IJ first found that the evidence was not subject to 8 exclusion because Sicajau failed to establish that the 9 residence was searched without valid consent. This was 10 error; Sicajau adequately established a prima faciecase for 11 suppression, at which point it became the Government’s 12 burden to establish that its agents secured consent prior to 13 conducting the search. Pursuant to BIA precedent, a 14 petitioner raising a question about the admissibility of 15 evidence “must come forward with proof establishing a prima 16 facie case before the [Government] will be called on to 17 assume the burden of justifying the manner in which it 18 obtained the evidence.” Matter of Barcenas , 19 I. & N. 19 Dec. 609, 611 (B.I.A. 1988) (quoting Matter of Burgos , 15 I. 20 & N. Dec. 278, 279 (B.I.A. 1975)). Under this burden21 shifting framework, if the petitioner offers an affidavit 22 that “could support a basis for excluding the evidence in 23 13question,” it must then be supported by testimony. Id. If 1 the petitioner establishes a prima facie case, the burden of 2 proof shifts to the Government to show why the evidence in 3 question should be admitted. 4 The BIA developed this burden-shifting framework in 5 Matter of Tang , 13 I. & N. Dec. 691, 692 (B.I.A. 1971), a 6 case in which the respondent challenged the Government’s use 7 of documents that his attorney claimed had been taken in 8 violation of his constitutional rights. Tang’s attorney did 9 not provide any specifications regarding this assertion; he 10 argued that “since he raised a question as to the legality 11 of the evidence, the burden is upon the [Government] to come 12 forward with proof establishing that the documents” were 13 legally obtained. Id . The BIA disagreed, finding that 14 “[o]ne who raises the claim must come forward with proof 15 establishing a prima facie case before the [Government] will 16 be called upon to assume the burden of justifying the manner 17 in which it obtained its evidence.” Id. 18 The BIA explained that the “reason for [its] rule” was 19 that an “‘attorney demanding suppression merely upon his own 20 say-so often discovers only at the hearing that he has been 21 misled by unsworn representations of his clients,’” 22 resulting in protracted and unnecessary proceedings. Id. 23 14(quoting United States v. Garcia , 272 F. Supp. 286, 290 1 (S.D.N.Y. 1967)). Thus, a “respondent’s offer of proof” in 2 support of a motion for suppression that is merely “a mixed 3 legal and factual declaration by counsel, not based on 4 counsel’s personal knowledge and never corroborated 5 personally by the respondent” does not constitute a prima 6 facie showing. Matter of Ramirez-Sanchez , 17 I. & N. Dec. 7 503, 505-06 (B.I.A. 1980). But the requisite “personal 8 knowledge” refers to information possessed by the respondent 9 who was subject to the alleged constitutional violation; it 10 cannot extend to information the respondent does not have. 11 Here, the IJ erred by failing to shift the burden to 12 show consent from Sicajau to the Government once Sicajau 13 offered an affidavit and supporting testimony based on 14 personal knowledge sufficient to make out a prima facie case 15 for suppression. Sicajau presented facts that, “if true, 16 could support a basis for excluding the evidence in 17 question.” Barcenas , 19 I. & N. Dec. at 611. Although 18 neither Sicajau nor Ochoa personally observed ICE officers 19 enter their home, each man testified to the full extent 20 permitted by his “personal knowledge.” Despite this, the IJ 21 found that Sicajau “d[id] not offer sufficient facts to 22 establish that the residence was searched without valid 23 15consent,” because neither he nor his witness had “observed 1 any official enter the dwelling.” Joint App’x 108. The BIA 2 affirmed this conclusion, finding that “[t]he facts as 3 alleged by [Sicajau] are insufficient to show that 4 immigration officers entered his living space without 5

consent.” In re Sicajau Cotzojay, No. A097 535 383 (B.I.A. 6 Oct. 31, 2011). 7 This was error. Sicajau presented facts that, taken as 8 true, showed that ICE officers entered his home without 9 consent and in violation of the Fourth Amendment. See 10 Almeida-Amaral v. Gonzalez , 461 F.3d 231, 237 (2d Cir. 2006) 11 (noting that we must “tak[e] the evidence most favorably to 12 petitioner” at this stage). At this point, the burden to 13 establish that the officers obtained voluntary consent 14 before invading Sicajau’s home and bedroom should have 15 shifted to the Government. However, the IJ believed that 16 even ifSicajau had made a prima faciecase for an ordinary 17 Fourth Amendment violation (by establishing a non-consensual 18 entry), he had not made a prima facie showing for 19 suppression because the facts alleged could not yield a 20 violation “so shocking to the conscience that it would rise 21 to the level of egregiousness.” Joint App’x 110. 22 23 16**“Egregious” Fourth Amendment Violations** 1 The IJ also found, and the BIA affirmed, that the 2 evidence was not subject to exclusion because Sicajau could 3 not show an egregious Fourth Amendment violation requiring 4 suppression. Specifically, the IJ found that even if 5 Sicajau had demonstrated an ordinary Fourth Amendment 6 violation, because he did not claim that ICE officers 7 physically threatened or harmed him in the course of the 8 nighttime, warrantless raid, it did not amount to an 9 egregious violation. The IJ’s determination, and the BIA’s 10 affirmation, rested on an erroneous view of what government 11 conduct is required before a Fourth Amendment violation may 12 be classified as egregious. 13

In INS v. Lopez-Mendoza , 468 U.S. 1032 (1984), the 14 Supreme Court balanced the “likely social benefits of 15 excluding unlawfully seized evidence against the likely 16 costs,” id. at 1041, and determined that a Fourth Amendment 17 violation, standing alone, does not justify applying the 18 exclusionary rule in civil deportation hearings, id. at 19 1041-50. However, a plurality of the Court included two 20 caveats to this rule. 6First, Justice O’Connor, who 21

6 Cf. Oliva-Ramos v. Att. Gen. of U.S. , 694 F.3d 259, 271 (3d Cir. 2012) (“[T]hough technically correct to characterize the 17authored the majority opinion, recognized that the need for 1 the exclusionary rule’s use “might change, if there 2 developed good reason to believe that Fourth Amendment 3 violations by [immigration] officers were widespread.” Id. 4 at 1050. Second, Justice O’Connor limited the majority 5 holding by exempting from it any “egregious violations of 6 Fourth Amendment or other liberties that might transgress 7 notions of fundamental fairness and undermine the probative 8 value of the evidence obtained.” Id. at 1050-51. Sicajau 9 focuses his attack here on the second limitation: egregious 10 Fourth Amendment violations. 7 11 We interpreted this aspect of Lopez-Mendoza as 12 authorizing the exclusion of evidence obtained in violation 13 of the Fourth Amendment “if record evidence established 14 either (a) that an egregious violation that was 15 fundamentally unfair had occurred, or (b) that the violation 16

portion of the majority opinion recognizing a potential exception to the Court’s holding as a ‘plurality opinion,’ eight Justices agreed that the exclusionary rule should apply in deportation/removal proceedings involving egregious or widespread Fourth Amendment violations.”).

7 We note that recently ICE settled a class action arising out of warrantless invasions of (alleged) alien residences in conjunction with Operation Return to Sender. Mark Hamblett, Settlement Includes Guidelines for ICE Raids , N.Y. LAW JOURNAL , Apr. 8, 2013 (discussing settlement reached in Aguilar v. Immigration and Customs Enforcement , No. 07 Civ. 8224, before Southern District of New York Judge Katherine Forrest). 18– regardless of its egregiousness or unfairness – undermined 1 the reliability of the evidence in dispute.” 8 2 Almeida-Amaral , 461 F.3d at 235. In Almeida-Amaral , the 3 seventeen-year-old petitioner was approached late at night 4 by a border patrol agent in the parking lot of a gas station 5 near the Mexican border. Id. at 232. The agent requested 6 identification; when the petitioner produced his Brazilian 7 passport, the agent arrested him. Id. 8 This Court had no “doubts about the veracity of the 9 evidence obtained as a result of the seizure,” but 10 questioned whether “the agent’s stop of Almeida-Amaral 11 transgressed notions of fundamental fairness.” Id. at 235 12 (internal quotation marks and alteration omitted). Without 13 providing an exhaustive set of factors, we identified “two 14 principles that . . . bear on whether petitioner suffered an 15 egregious violation of his constitutional rights.” Id. at 16 235 & 235 n.1. First, the “characteristics and severity of 17

8 Almeida-Amaralexplained that “Lopez-Mendozaauthorizes exclusion for violations that are egregious either because the violation ‘transgress[ed] notions of fundamental fairness,’ or because the violation ‘undermine[d] the probative value of the evidence obtained.’” 461 F.3d at 234 (quoting Lopez-Mendoza , 468 U.S. at 1050-51) (emphasis in original). This Court viewed Lopez-Mendoza’s use of the conjunctive “and” instead of the disjunctive “or” as apparently “inadvertent[]”; it was “plainly not what the Court intended” to require evidence of fundamental unfairness anddiminished probative value to justify exclusion. See id. at 234-35. 19the offending conduct,” in addition to the validity of the 1 seizure itself, should be considered. Id. at 235. Second, 2 we determined that “even where the seizure is not especially 3 severe, it may nevertheless qualify as an egregious 4 violation if the stop was based on race (or some other 5 grossly improper consideration).” Id. Applying these 6 principles, we found that the agent’s suspicionless stop was 7 an infringement but was not egregious because the stop was 8 neither severe nor apparently motivated by impermissible 9 considerations. Id. at 237. 10 What causes a Fourth Amendment violation to qualify as 11 “egregious” based on severity? This Court has never found a 12 violation sufficiently severe, and therefore egregious, to 13 require suppression in a removal hearing. 9 E.g. , id. ; 14 Melnitsenko v. Mukasey, 517 F.3d 42, 47-48 (2d Cir. 2008) 15 (three-hour stop at a border check point was not 16 sufficiently severe to be egregious); Pinto-Montoya v. 17 Mukasey, 540 F.3d 126, 131-32 (2d Cir. 2008) (per curiam) 18

9We have suppressed evidence on the basis of its unreliability. In Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009), immigration agents questioned the petitioner over several hours throughout the night, not about his own immigration status, a relatively clear-cut inquiry, but about “more nuanced” issues that were “susceptible to corruption during the course of an improper interview.” Id. at 214-16. 20(finding that petitioners were not “seized” for Fourth 1 Amendment purposes when they answered officials’ questions 2 at an airport). Other courts have identified egregious 3 violations under arguably less severe circumstances. See , 4

e.g. , Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018-19 5 (9th Cir. 2008). As the Third Circuit has noted, “there is 6 no one-size-fits-all approach to determining whether a 7 Fourth Amendment violation is egregious.” Oliva-Ramos v. 8 Att. Gen. of U.S. , 694 F.3d 259, 279 (3d Cir. 2012). 9 In this case, the absence of physical threat or harm to 10 Sicajau was a key factor in the IJ and BIA decisions finding 11 the exclusionary rule inapplicable. Determining whether an 12 egregious violation must include the threat or realization 13 of physical violence requires a review of the Supreme 14 Court’s Fourth Amendment jurisprudence generally, and the 15 Court’s reference to “egregious” violations in Lopez-Mendoza 16 specifically. 17 First, it is uncontroversial that the Fourth Amendment 18 applies to aliens and citizens alike. See , e.g. , Lopez19 Mendoza , 468 U.S. at 1046 (observing that it is “[i]mportant 20 . . . to protect the Fourth Amendment rights of all 21 persons,” despite finding that application of the 22 exclusionary rule is not necessary in every context). 23 21Second, “in the absence of consent or exigent circumstances 1 . . . [the Court has] consistently held that the entry into 2 a home to conduct a search or make an arrest is unreasonable 3 under the Fourth Amendment unless done pursuant to a 4

warrant.” Steagald v. United States , 451 U.S. 204, 211 5 (1981). The Fourth Amendment’s protections apply to 6 individuals like Sicajau, and these protections should be at 7 their zenith in the home. “At the very core of the Fourth 8 Amendment stands the right of a man to retreat into his own 9 home and there be free from unreasonable governmental 10 intrusion.” Payton v. N.Y. , 445 U.S. 573, 589-90 (1980) 11 (internal quotation marks and alterations omitted)). 12 But the applicability of the Fourth Amendment does not 13 compel the availability of the exclusionary rule in civil 14 deportation proceedings. Lopez-Mendoza , 468 U.S. at 1050. 15 In support of the plurality’s exception for egregious Fourth 16 Amendment violations, Justice O’Connor looked to Rochin v. 17 California , 342 U.S. 165 (1952), and to two BIA cases in 18 which “fundamentally unfair” evidence was suppressed. 19 Lopez-Mendoza , 468 U.S. at 1050-51 & 1051 n.5. In Rochin , a 20 criminal case, when police officers entered the defendant’s 21 bedroom he promptly swallowed two unidentified capsules. 22 342 U.S. at 166. In order to recover the capsules, the 23 22officers handcuffed Rochin and took him to the hospital, 1 where his stomach was forcibly pumped to induce vomiting. 2 Id. At Rochin’s trial for possessing a preparation of 3 morphine, the recovered capsules were the chief evidence 4 against him. Id. After the California Supreme Court 5 declined to review Rochin’s conviction, the Supreme Court 6 granted certiorari and reversed because the officers’ 7 conduct “shock[ed] the conscience.” Id. at 209. 8 We do not read the Supreme Court’s citation to Rochin 9 as an indication that the Court requires equally flagrant 10 violations before it is willing to label them “egregious.” 11 As the Third Circuit recently pointed out, the Supreme 12 Court’s decision in Rochinpreceded its incorporation of the 13 Fourth Amendment against the states via the Fourteenth 14 Amendment in Mapp v. Ohio , 367 U.S. 643, 655-57 (1961). 15 Oliva-Ramos , 694 F.3d at 276. “‘Consequently, the Court has 16 not relied on the Rochinshocks the conscience standard but 17 has instead applied a Fourth Amendment reasonableness 18 analysis in cases that, like Rochin , involved highly 19 intrusive searches or seizures.’” Id. (quoting Lester v. 20 City of Chicago , 830 F.2d 706, 711 (7th Cir. 1987) 21 (additional internal quotation marks omitted)); see also 22

23Maryland v. King , 133 S.Ct. 1958, 1969 (2013). Still, if a 1 Fourth Amendment violation is measured by what is 2 reasonable, then an egregious violation must surely be 3 something more than unreasonable. See Oliva-Ramos , 694 F.3d 4 at 276. 5 Justice O’Connor does not directly address what 6 distinguishes an unreasonable violation from one that is 7 egregious, but cites to two cases in which the BIA concluded 8 that the constitutional violation at issue was egregious. 9 One of these cases is directly on point, as it allowed 10 “suppression of evidence obtained as a result of a night11 time warrantless entry into the aliens’ residence.” Lopez12 Mendoza , 468 U.S. at 1051 n.5 (citing Matter of Ramira13 Cordova , No. A21 095 659 (Feb. 21, 1980)). She also cites 14

to Matter of Garcia , 17 I. & N. Dec. 319, 321 (BIA 1980), in 15 which the BIA invoked the “requirements of due process” to 16 suppress the respondent’s involuntary admission of alienage 17 after his repeated requests for counsel were denied. Lopez18 Mendoza , 468 U.S. at 1051 n.5. 19 Although both Garciaand Ramira-Cordova , like Rochin , 20 involved some degree of physical threat or forcible contact, 21 we are unconvinced that the Supreme Court’s citation to 22 these cases means that physical coercion is a necessary 23 24component of an egregious Fourth Amendment violation. 1 Ultimately, the plurality’s exemption of egregious 2 violations rests on the view that evidence obtained in a 3 “fundamentally unfair” manner should be excluded for due 4

process reasons. Lopez-Mendoza , 468 U.S. at 1051 n.5. We 5 see no good reason to require that Fourth Amendment 6 violations mustinvolve some sort of physical threat or 7 trespass before they “transgress notions of fundamental 8 fairness.” Id. at 1050-51 (noting that the evidence at 9 issue was “gathered in connection with peaceful arrests”). 10 Breaking into someone’s home at 4:00 a.m. without a warrant 11 or any legitimate basis need not also include physical 12 injury or the threat thereof for such conduct to qualify as 13 egregious. 14

In Almeida-Amaral , this Court explained that both the 15 “characteristics and severity of the offending conduct,” in 16 addition to its validity or invalidity, are relevant. 461 17 F.3d at 235. This inquiry is intended to be broad. As the 18 Third Circuit has recognized, “a flexible case-by-case 19 approach” is warranted, under which the threat or use of 20 physical force is one relevant, but not dispositive, 21 consideration. Oliva-Ramos , 694 F.3d at 278-79. In Oliva22

Ramos , the court vacated and remanded the BIA’s decision 23 25refusing to suppress evidence obtained via a pre-dawn, 1 warrantless raid conducted as part of Operation Return to 2 Sender. Id. at 279, 281 n.27. The Third Circuit developed 3 a non-exhaustive list of factors to guide the BIA in its 4 assessment of the egregiousness of the Fourth Amendment 5 violation, including: whether the violation was intentional; 6 whether the seizure was “gross or unreasonable” and without 7 plausible legal ground; whether the invasion involved 8 “threats, coercion[, ] physical abuse” or “unreasonable 9 shows of force”; and whether the seizure or arrest was based 10 on race or ethnicity. Id. at 279. 11 We agree with the Third Circuit that each of these 12 factors, among others, may be useful for determining whether 13 a Fourth Amendment violation is sufficiently egregious to 14 require application of the exclusionary rule. No single 15 aspect of a constitutional violation elevates its status 16 from merely unreasonable to egregious. 10Thus, although an 17

10The Ninth Circuit’s view that “[a] Fourth Amendment violation is ‘egregious’ if ‘evidence is obtained by deliberate violations of the [F]ourth [A]mendment, or by conduct a reasonable officer should [have known] is in violation of the Constitution’” goes too far. Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008) (quoting Gonzalez-Rivera v. INS , 22 F.3d 1441, 1449 (9th Cir. 1994) (emphasis omitted)). This qualified immunity-type inquiry yields an exception that is “frankly, rather broad,” id. at 1019 (Bybee, J. , concurring), and places too much emphasis on the good or bad faith of government agents. 26unlawful search does not “become[] an egregious search 1 merely because it invades the privacy of the home,” Martinez 2 Carcamo v. Holder , 713 F.3d 916, 923 (8th Cir. 2013), that 3 government agents intrude into one’s home (versus a 4 workplace or vehicle, for example) is an important factor in 5 assessing the egregiousness of a Fourth Amendment violation 6 because the home is where its protections should be at their 7 peak. As in this case, the deliberate, nighttime, 8 warrantless entry into an individual’s home, without consent 9 and in the absence of exigent circumstances, may constitute 10 an egregious Fourth Amendment violation regardless of 11 whether government agents physically threaten or harm 12 residents. 13 We are persuaded that the facts as alleged by Sicajau 14 portray an egregious Fourth Amendment violation requiring 15 application of the exclusionary rule. We reject the IJ’s 16 determination that Sicajau’s failure to personally observe 17 the officers’ entry of the home rendered him incapable of 18 establishing a prima faciecase for suppression. As 19 discussed, Sicajau’s affidavit and supporting testimony 20 describing the circumstances of the raid were sufficient to 21 carry this burden. Thus, assuming that ICE officers did not 22 secure voluntary consent to enter the home – thereby 23 effecting the basic Fourth Amendment violation that must 24

27underlie any egregious violation – certain aspects of the 1 raid as alleged by Sicajau transform the constitutional 2 transgression depicted here into an egregious Fourth 3 Amendment violation. 4 Initially, we note that ICE officers purposely arrived 5 at Sicajau’s home in the pre-dawn hours, presumably for the 6 purpose of startling the sleeping residents, and, perhaps, 7 with the aim of coercing confused consent. 11In addition, 8 although the officers apparently secured their target, 9 Cojon, they returned to the home without a warrant and 10 without reasonable suspicion that additional illegal aliens 11 remained behind the home’s locked doors. The Government 12 failed to offer any evidence showing that its officers 13 obtained voluntary consent to enter the home; the only 14 record of the raid that we have comes from Sicajau and 15 Ochoa. In the absence of evidence to the contrary, their 16 statements support finding that ICE officers entered the 17 18 19 20

11According to Supervisory Detention and Deportation Officer Williams, ICE officers aim to arrive at residences between 5:30 a.m. and 6:00 a.m. “to ensure that target aliens would be present.” Joint App’x 231. But the record in this case (and in thecompanion case argued in tandem with the case at bar) belies Williams’ assertion that ICE officers never conduct raids starting before 5:30 a.m. 28home without consent in egregious violation of the Fourth 1 Amendment. 12 2 We conclude that the best course is to remand for 3 further proceedings to give the Government a meaningful 4 opportunity to show that its officers obtained consent to 5 enter Sicajau’s home. We note that although Government 6 proof of voluntary consent to enter Sicajau’s home and 7 bedroom would negate his Fourth Amendment claim, he has 8 raised separate arguments regarding the admissibility of the 9 evidence under the Fifth Amendment and DHS regulations. In 10 light of our decision to remand, we decline to reach those 11 arguments here. Finally, if, on remand, Sicajau’s motion to 12 suppress evidence of alienage is granted, we direct the IJ 13 and the BIA to our opinion issued in a companion case also 14 decided today for guidance with respect to what types of 15 “identity” evidence are subject to exclusion. See Jose 16
17

12We believe that ICE officers’ conduct throughout the raid lends support to our conclusion that the Fourth Amendment violation depicted here was egregious – the officers’ actions were more than merely “disrespectful” with regard to the residents’ constitutional rights. Specifically, ICE officers pounded on Sicajau’s bedroom door, corralled Sicajau and other handcuffed residents in the living room, searched Sicajau’s room for desirable identification documents, informed arrestees that they could relieve themselves in a restaurant parking lot while officers ate breakfast, and, in total, detained Sicajau for approximately eighteen hours.

29Pretzantzin, et al. v. Holder , No. 11-2867-ag, – F.3d –, – 1 (2d Cir. 2013). 2 3 **Conclusion** 4 For the foregoing reasons, the decision of the Board of 5 Immigration Appeals is hereby VACATED and REMANDED. On 6 remand, the Government bears the burden of proof to show 7 that ICE officers obtained voluntary consent to enter the 8 home and Sicajau’s bedroom. 9

30