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Second Circuit Reverses Immigration Proceeding Based on Constitutional Violation, Criticizes Immigration Enforcement Based on Ethnic Generalizations As "Teeter[ing] On The Verge of The Ugly Abyss of Racism"

In the context of an appeal from a decision of the Board of Immigration appeals, Zuniga-Perez v. Sessions, the Second Circuit (Pooley, Wesley, Chin, C.JJ) ruled that a search conducted by law enforcement personnel violated the Fourth Amendment.  The Court recognized that the petitioner “made a sufficient showing of an egregious constitutional violation” by law enforcement agents, and reversed the immigration judge’s decision to deny a suppression motion without a hearing.  While this is not a criminal law decision, it raises some important criminal law issues, so we have decided to cover it.

On September 4, 2011, at 10:00 pm, the New York State Police, working with the Customs and Border Patrol (allegedly present as interpreters), entered the petitioners’ house, purportedly to execute a “felony search warrant.”  The petitioners were asleep and were awakened by the officers who screamed that the men needed to open the door.  Another resident of the house allowed the officers to enter the house.  Paperwork prepared by immigration officials stated that police “were executing a felony search warrant . . . . Information received by [New York State Police] stated that a possible fugitive from justice was located at this address and in addition there were known Hispanic migrants residing at the residence” (emphasis added).

Once in the house, the officers rounded up the petitioners, asked if they knew the fugitive (they said they did but that he was not at the house), and then asked petitioners if they had papers to be in the United States.  The petitioners admitted that they did not, and then the petitioners were arrested by the Border Patrol agents.

After removal proceedings were commenced in Immigration Court, the petitioners filed a motion to suppress all evidence from the raids and arrests.  They argued that the Border Patrol agents had no articulable suspicion to believe that petitioners had violated the law and that they conducted the search without a warrant.  They further argued that the Border Patrol used the access obtained by the police as a pretext to conduct a search, in violation of agency regulations requiring a reasonable suspicion before conducting a stop and search.  They also argued that the search was racially motivated because it was based in part on the agents’ belief that there were “known Hispanic migrants” at the residence.  The petitioners asked that the evidence be suppressed on the papers, or, in the alternative, that the immigration judge conduct a hearing.

Petitioners’ counsel raised several specific concerns to the court:  DHS never presented a search warrant to her or to the Court; the use of the border patrol agents as interpreters seemed pretextual, simply a means of giving them access to the premises; and the agents’ reliance on the fact that Hispanic farm workers lived at the property.  The immigration judge denied the motion, finding that the evidence was not obtained in violation of the Constitution and that the suppression motion was not supported by any evidence.  The Board of Immigration Appeals affirmed, finding that “even accepting the respondents’ affidavits as true, the action of the government were not ‘egregious.’”  The “egregious” standard is relevant here because while the exclusionary rule usually does not apply in immigration matters, exclusion of evidence is appropriate where the violations of constitutional rights are “egregious.”  The BIA also held that “there is no evidence to support a claim that law enforcement officials took any action that was racially motivated or was taken because the respondents are Hispanic in appearance or are migrant farm workers.”

In its opinion, the Court of Appeals began its analysis by reviewing the Fourth and Fifth Amendment principles that were relevant to the decision.  First, entry into the home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant or due to exigent circumstances.  Second, law enforcement is bound to follow the terms of a search warrant during its execution.  While law enforcement may conduct a protective sweep while executing an arrest warrant, a protective sweep is not a full search of the premises and may last only so long as needed to dispel the reasonable suspicion of danger.  Third, the Fourth Amendment provides protection against random or gratuitous questioning relating to immigration status.  Fourth, statements made during a custodial interrogation are generally inadmissible under the Fifth Amendment unless the suspect is read their Miranda rights.  Finally, “stopping and interrogating people based solely on race or ethnicity violates the Fourth Amendment.”

On these principles and based on the relevant facts, the Second Circuit reversed, finding that the defendant was entitled to an evidentiary hearing because petitioners made a sufficient showing of an egregious constitutional violation to warrant an evidentiary hearing.  That is, the facts “could support a basis for excluding the evidence.”  The Court’s marshaling of the evidence in support of the petitioners was thorough and persuasive:

  • The law enforcement agents went to the house looking for “known Hispanic migrants.”  This was a purpose of the search, and the petitioners “presented substantial evidence that the search was improperly based on race.”  In addition, there were no specific or articulable facts to believe that anyone in the house (other than the suspected fugitive) had committed a crime.

  • No search or arrest warrant was ever produced by the government, and even if there were such a warrant, “fair questions” existed as to whether the interrogation exceeded its permissible scope.  Once the agents determined that the fugitive for whom they were looking was not present, any subsequent questioning was arguably beyond the scope of the warrant.”  The petitioners were not free to leave, and were not given Miranda warnings.  The Court also questioned why the state police used Border Patrol agents as interpreters, and reasoned that “[t]hese facts support the notion that law enforcement was targeting Hispanic migrant workers from the start.”

  • The petitioners also presented sufficient evidence that if believed would show that the agents engaged in severe conduct:  “a nighttime raid of a home, perhaps without warrant or consent, and with a showing of physical force—knocking on windows, shining flashlights into a bedroom, the surrounding of the house by police officers, armed with rifles, and the rounding up of seven residents.” 

The Court questioned the government’s handling of the investigation and prosecution: “there is no evidence in the record of any illegal activity on the part of petitioners, and on this record a reasonable fact-finder could conclude that they were targeted merely because they appeared to be Hispanic migrants.  But being a Hispanic migrant is not a crime.”  The Court described the law enforcement conduct here as “ethnic harassment” and explained that “[i]mmigration enforcement that is based not on individualized suspicion but on ethnic generalizations teeters on the verge of ‘the ugly abyss of racism.’”  While there may have been legitimate, non-discriminatory reasons for the officers’ actions, “those reasons are not apparent from this record, and there was more than ample reason for an evidentiary hearing.”

This is an important decision.  The Court was willing to look past the flimsy and pretextual justifications for the agents’ search.  It is rare for law enforcement personnel to write down in their report that particular actions were taken based on a racial motivation.  Here, the agents actually noted that part of their rationale for the search was “there were known Hispanic migrants residing at the residence.”  Of course, this fact should not play a part in guiding law enforcement activity.  The Court also recited a litany of other problems with how the agents handled this matter:  the gratuitous use of Border Patrol agents as “interpreters,” the questioning of the petitioners without Miranda warning and while in custody, the nighttime raid and the excessive protective sweep.  Even the warrant itself was not produced by the government, if it existed at all.  Much as in the Court’s 2016 decision in United States v. Hussain, the Court was not blind to the possibility that race likely played a part in how law enforcement approached this matter.  When federal judges bravely point out race-based unfairness in the criminal justice system or the enforcement of our immigration laws, they perform a vital service in checking improper government behavior and also help encourage law enforcement to live up to the important American ideal of equal treatment under law.

-By Stephanie Teplin and Harry Sandick