PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-2330
JAIRO FERINO SANCHEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Respondent.
------------------------------------------------------
ACLU OF MARYLAND; AMERICAN IMMIGRATION COUNCIL;
NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS
GUILD,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration Appeals.
Argued: January 25, 2018 Decided: March 27, 2018
Before MOTZ and DIAZ, Circuit Judges, and Robert J. CONRAD, Jr., United States
District Judge for the Western District of North Carolina, sitting by designation.
Petition denied by published opinion. Judge Motz wrote the opinion, in which Judge
Diaz and Judge Conrad joined.
ARGUED: Barry Dalin, UNIVERSITY OF MARYLAND FRANCIS KING CAREY
SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. Kohsei Ugumori, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Matthew
E. Price, JENNER & BLOCK, LLP, Washington, D.C., for Amicus American
Immigration Council. ON BRIEF: Maureen A. Sweeney, Supervising Attorney, Adilina
Malavé, Third Year Law Student, Anne Brenner, Third Year Law Student, University of
Maryland Carey Immigration Clinic, UNIVERSITY OF MARYLAND FRANCIS KING
CAREY SCHOOL OF LAW, Baltimore, Maryland, for Petitioner. Chad A. Readler,
Acting Assistant Attorney General, Emily Anne Radford, Assistant Director, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. Sejal Zota, NATIONAL IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD, Boston, Massachusetts, for Amicus National
Immigration Project of the National Lawyers Guild. Deborah A. Jeon, Nicholas Steiner,
AMERICAN CIVIL LIBERTIES UNION OF MARYLAND, Baltimore, Maryland, for
Amicus ACLU of Maryland. Melissa Crow, AMERICAN IMMIGRATION COUNCIL,
Washington, D.C., for Amicus American Immigration Council.
2
DIANA GRIBBON MOTZ, Circuit Judge:
After questioning Jairo Ferino Sanchez and learning that he had entered the
country illegally, state police officers detained and then transported him to Immigration
and Customs Enforcement (“ICE”). An Immigration Judge (“IJ”), in a decision affirmed
by the Board of Immigration Appeals (“BIA”), rejected Sanchez’s motion to suppress the
statements he made to the state officers and ICE, and ordered his voluntary departure.
Sanchez now petitions for review. For the reasons that follow, we must deny that
petition.
I.
A.
On May 22, 2009, Maryland Transportation Authority Police (“MdTAP”) Officer
Acker stopped Jose Alberto Badillo Taylor (“Badillo”) for a traffic violation. Badillo
failed to produce a valid license and Officer Acker noticed that the car had exposed
ignition wiring and lacked a steering column, indicating that perhaps it had been stolen.
When Badillo explained that the car, a Nissan, belonged to a friend, Officer Acker
directed Badillo to call the Nissan’s owner, Juventino Tenorio Davila (“Tenorio”), to
retrieve his car from the scene. At the time Tenorio received Badillo’s call, he was
traveling in an Acura with Sanchez and another passenger, Seltik Ferino Sanchez
(“Ferino”). Sanchez agreed to drive Tenorio and Ferino to Badillo’s location to retrieve
the Nissan.
3
When the three men arrived on the scene, Sanchez parked the Acura about twenty
to thirty feet in front of the Nissan. Sanchez, Tenorio, and Ferino remained inside the
Acura with the engine running. After approximately five minutes, Officer Acker
approached the Acura, leaned inside the front passenger window, and asked the men
whether they were “illegal or legal.” Officer Acker repeated the question two or three
times. The Officer later explained that because he believed the men had acted in a
“suspicious” manner, when they refused to answer his questions, he spoke to them in an
“authoritative” tone.
According to Sanchez, the questioning made him “scared and nervous.” Because
he “felt pressured and intimidated,” he answered the Officer’s question and admitted that
he had entered the country illegally. At that point, Officer Acker stopped questioning the
men and asked Sanchez to turn off the ignition and give him the keys. Sanchez complied.
Upon the Officer’s request, all three men produced identification cards. With the
assistance of another MdTAP officer, Officer Acker then handcuffed the three men.
MdTAP officers transported Sanchez, Tenorio, Ferino, and Badillo to the MdTAP
station. At the station, MdTAP officers removed the handcuffs and placed the men in a
small cell. After about 90 minutes, Officer Acker returned, re-handcuffed the men, and
explained that he was taking them to the ICE facility. 1 In total, MdTAP officers detained
Sanchez for approximately three-and-a-half hours.
1
MdTAP officers contacted ICE to request that ICE take custody of the men, but
ICE needed approximately five hours to respond to that request. Rather than wait for ICE
to come to the MdTAP facility, the MdTAP officers elected to transport the men to ICE.
4
B.
While in ICE custody, an ICE agent interviewed Sanchez, who again admitted that
he had entered the United States illegally without inspection. The agent memorialized
Sanchez’s admissions to Officer Acker and ICE about his immigration status in a Form I–
213 (Record of Deportable/Inadmissible Alien). That form also identifies Sanchez as “a
native and citizen of Mexico who entered the United States” in “February 2000 without
inspection by an Immigration Officer.”
Based on the form, ICE instituted removal proceedings against Sanchez pursuant
to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(A)(1) (2006). Sanchez moved the IJ to suppress all evidence of his illegal
entry, including the Form I–213. He maintained that the state police officers obtained
this information in violation of his Fourth and Fifth Amendment rights.
In support of his contentions, Sanchez provided affidavits from himself, Tenorio,
Ferino, and Badillo. Sanchez also offered an affidavit from Major Stanford O’Neill
Franklin, the Executive Director of Law Enforcement Against Prohibition and a former
member of the Maryland State Police and MdTAP. In addition, the IJ heard testimony
from Sanchez, Officer Acker, Major Franklin, and ICE’s expert witness (a Maryland
sheriff and former MdTAP officer).
The IJ found that Sanchez “testified credibly in terms of what happened” during
the May 2009 traffic stop. He also concluded that Officer Acker treated Sanchez “and his
friends . . . pretty much in the manner” Sanchez described, in that Officer Acker inquired
“about who they are, where they are from,” and asked them “to produce identification.”
5
But the IJ was not persuaded that the state officers “intimidated and frightened” Sanchez
into giving “up information regarding his Immigration status.” The IJ therefore
concluded that the record lacked “‘specific and detailed statements from which [the IJ]
could find evidence” that the MdTAP officers had engaged in “coercion or duress.” As a
result, the IJ concluded that Sanchez had “failed to demonstrate any violation of the Fifth
Amendment that can provide the basis for suppression of evidence.” The IJ also found
that even if “the MdTAP officers did violate [Sanchez’s] Fourth Amendment rights, the
presumed violation” was not “egregious.”
On appeal before the BIA, Sanchez argued that the IJ applied the incorrect legal
standard to his Fourth Amendment claim. The IJ had determined not to suppress
Sanchez’s statements because any violation of Sanchez’s Fourth Amendment right was
not “egregious” under INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), and Yanez-Marquez
v. Lynch, 789 F.3d 434 (4th Cir. 2015). Sanchez claimed that the IJ should have instead
applied “the full exclusionary rule” and that under that standard, the IJ should have
suppressed his statements. Alternatively, Sanchez maintained that, contrary to the IJ’s
conclusion, he had “suffered an egregious violation of his Fourth Amendment rights.”
Sanchez also argued that the IJ erred in finding that the officers did not violate his Fifth
Amendment right to due process.
The BIA affirmed. It rejected Sanchez’s claim that the IJ “should have applied the
full exclusionary rule.” Instead, the BIA held that in the context before it the
exclusionary rule requires proof of an “egregious” Fourth Amendment violation. The
BIA found that the IJ had correctly determined that Sanchez failed to establish “an
6
egregious violation of his Fourth Amendment rights.” In addition, the BIA agreed that
Sanchez had failed to prove that any MdTAP officer had violated Sanchez’s due process
right. Sanchez noted a timely appeal. 2
II.
The exclusionary rule directs courts to suppress evidence obtained through “an
unlawful, warrantless arrest” where “the link between the evidence and the unlawful
conduct is not too attenuated.” Lopez-Mendoza, 468 U.S. at 1040–41. “[T]he
exclusionary rule is not an individual right.” Herring v. United States, 555 U.S. 135, 141
(2009). Rather, “[t]he rule’s sole purpose . . . is to deter future Fourth Amendment
violations.” Davis v. United States, 564 U.S. 229, 236–37 (2011). Thus, the rule
“applies only where it results in appreciable deterrence” and where “the benefits of
deterrence . . . outweigh the costs.” Herring, 555 U.S. at 141 (internal quotation marks
and citation omitted); see also Lopez-Mendoza, 468 U.S. at 1046 (noting that application
of the exclusionary rule is not justified where it fails “to provide significant, much less
substantial, additional deterrence” (internal quotation marks and citation omitted)).
In Lopez-Mendoza, the Supreme Court held that the “balance between costs and
benefits comes out against applying the exclusionary rule in civil deportation hearings” to
2
Where a BIA decision incorporates “some part of the IJ’s opinion as part of the
BIA’s final order,” but also contains the BIA’s own reasoning, we review the decisions of
both the BIA and IJ. Martinez v. Holder, 740 F.3d 902, 908 & n.1 (4th Cir. 2014). We
review the IJ and BIA’s legal determinations de novo. See id. at 909. “[A]dministrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
7
information obtained by INS agents. 3 468 U.S. at 1050. The Court acknowledged that
applying the exclusionary rule to civil deportation proceedings could deter unlawful
police actions. For example, the Court reasoned that since “only a very small percentage
of arrests of aliens . . . lead to criminal prosecutions,” in the immigration context, an
officer’s “primary objective . . . will be to use evidence in the civil deportation
proceeding.” Id. at 1042–43. In contrast, where an officer’s “primary objective” is to
obtain evidence for use in a criminal proceeding, suppressing that evidence in a civil
proceeding is less of a deterrent. See id.
The Court found, however, that “other factors significantly reduce the likely
deterrent value of the exclusionary rule in a civil deportation proceeding.” Id. at 1043.
First, in civil deportation proceedings, the government need only establish identity and
alienage. But courts cannot suppress identity, and it may be possible to prove alienage
“using evidence gathered independently of, or sufficiently attenuated from, the original
arrest.” Id. Thus, in many cases, “regardless of how the arrest is effected, deportation
will still be possible” on the basis of lawfully obtained evidence. Id.
Second, because the vast majority of arrestees agree to voluntary deportation, in
the rare instance where an individual challenges the lawfulness of his arrest in a formal
deportation proceeding, “the consequences from the point of view of the officer’s overall
arrest and deportation record will be trivial.” Id. at 1044. Third and “perhaps most
3
The Homeland Security Act of 2002, Pub. L. 107-296, transferred the
Immigration and Naturalization Service’s (“INS”) law enforcement functions to ICE. See
Dep’t of Homeland Sec., 72 Fed. Reg. 20,131, 20,131 (Apr. 17, 2007).
8
important,” because “the INS has its own comprehensive scheme for deterring Fourth
Amendment violations by its officers,” the exclusionary rule provides little additional
deterrent value. Id. at 1044–45. Finally, declaratory relief may be available to challenge
the validity of repeated INS practices. Id. at 1045.
Moreover, the Court found the potential costs of applying the exclusionary rule in
civil deportation proceedings to be “both unusual and significant.” Id. at 1046. Applying
the exclusionary rule “would require the courts to close their eyes to ongoing violations
of the law.” Id. It could also disrupt the INS’s “deliberately simple deportation hearing
system,” which “permit[s] the quick resolution of very large numbers of deportation
actions.” Id. at 1048. The Court also emphasized that because of the nature of INS
actions, “applying the exclusionary rule to deportation proceedings might well result in
the suppression of large amounts of information that had been obtained entirely
lawfully.” Id.
A majority of the Supreme Court therefore held that, on balance, the costs of
“applying the exclusionary rule in civil deportation hearings” to information obtained by
INS agents outweighed the rule’s potential benefits. Id. at 1050. A plurality limited the
scope of this holding, however, by reserving judgment about cases that presented
“egregious violations of Fourth Amendment or other liberties that might transgress
notions of fundamental fairness and undermine the probative value of the evidence
obtained.” Id. at 1050–51 (plurality opinion).
In Yanez-Marquez, we applied Lopez-Mendoza to hold that “the exclusionary rule
applies in removal proceedings to egregious violations of the Fourth Amendment.” 789
9
F.3d at 450 (emphasis added); see also Kandamar v. Gonzales, 464 F.3d 65, 70 (1st Cir.
2006); Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006); Oliva-Ramos v.
Att’y Gen., 694 F.3d 259, 274–75 (3d Cir. 2012); Gonzalez-Rivera v. INS, 22 F.3d 1441,
1448–49 (9th Cir. 1994). In so holding, we noted that because the four dissenting
Justices believed that the exclusionary rule should apply to all civil removal proceedings,
“a total of eight justices in Lopez-Mendoza seem to have agreed that the exclusionary rule
should apply in removal proceedings in some form.” Yanez-Marquez, 789 F.3d at 449
(citing Lopez-Mendoza, 468 U.S. at 1051–61).
With these legal principles in mind, we turn to the case at hand.
III.
We first consider whether, as Sanchez and his Amici (collectively “the
Challengers”) contend, this case requires us to “apply the exclusionary rule in full force”
rather than the narrower “egregious violation” rule. Pet. Br. at 27, 30; see Amici Br. at 9.
We begin, as Lopez-Mendoza did, by considering “the likely deterrent value of the
[full] exclusionary rule in a civil deportation proceeding.” 468 U.S. at 1043. Much of
the Lopez-Mendoza Court’s rationale applies here. For example, evidence concerning an
alien’s illegal presence in this country remains useful primarily in the civil deportation
context, but independent evidence is often still available to ascertain alienage. Id. at
1042–43.
But some of the safeguards discussed in Lopez-Mendoza that “reduce[d] the likely
deterrent value of the exclusionary rule” as applied to federal officers do not apply to
10
state and local officers. Id. at 1043. There is no “comprehensive scheme for deterring
Fourth Amendment violations by” state and local officers, id. at 1044–45, as these
officers generally do not receive federal immigration training and are not subject to
federal regulations limiting their authority. Nor can “declaratory relief against the federal
agency effectively address persistent problems with abusive enforcement” by state and
local officers. Pet. Br. at 30. Moreover, because “there is no state-law parallel” to a
federal civil immigration proceeding, “the only proceeding in which immigration-related
evidence will be used is a federal proceeding.” Amici Br. at 20. We therefore agree with
the Challengers that applying the “full” exclusionary rule in civil immigration
proceedings to state and local officers would clearly have some deterrent effect.
But we do not agree that the likely additional deterrent value of the “full”
exclusionary rule, as opposed to the “egregious violation” rule, is appreciable or
substantial enough to justify its application. See Herring, 555 U.S. at 141; Lopez-
Mendoza, 468 U.S. at 1046. That is so because of the combined effect of the “egregious
violation” rule and our recent holding in Santos v. Frederick County Board of
Commissioners, 725 F.3d 451 (4th Cir. 2013). In Santos, we concluded that “absent
express direction or authorization by federal statute or federal officials, state and local
law enforcement officers may not detain or arrest an individual solely based on known or
suspected civil violations of federal immigration law.” Id. at 465. Thus, Santos makes
clear that when, absent federal direction or authorization, a state or local officer detains or
arrests someone based solely on a civil immigration violation, the officer violates that
individual’s Fourth Amendment right to be free from unreasonable searches and seizures.
11
A stop or seizure based solely on an abuse of an officer’s legal authority and
without reasonable suspicion of criminal activity will usually be egregious. In some
circumstances, more may be required. But because such conduct is likely egregious, its
fruits will likely be suppressed in civil immigration proceedings. For that reason, we
believe that, post-Santos, the “egregious violation” rule can substantially deter state and
local officers from illegally enforcing civil immigration laws.
Moreover, even if the Challengers’ proposed rule provides some marginal
additional deterrence, that does not outweigh its substantial costs. Requiring IJs to apply
a different exclusionary rule depending on the circumstances of a given case would
disrupt and complicate the “deliberately simple deportation hearing system.” See Lopez-
Mendoza, 468 U.S. at 1048. This is especially true because state and federal officials can
cooperate on immigration matters in various ways. For example, 8 U.S.C. § 1357(g)(1)
authorizes the Attorney General to grant to specific state or local officers the authority to
“perform a function of” a federal “immigration officer” through a formal, written
agreement with the state or local agency. But in the absence of such a written agreement,
state and local law enforcement agents may still “cooperate with the Attorney General in
the identification, apprehension, detention, or removal of aliens not lawfully present in
the United States.” Id. § 1357(g)(10)(B). Under the Challengers’ proposed rule,
immigration courts would apply the “full” exclusionary rule to state and local officers
who merely “cooperate” with ICE under § 1357(g)(10)(B), but would apply the
“egregious violation” rule to those authorized by “written agreement” to “carry out”
federal immigration functions under § 1357(g)(1).
12
This would undoubtedly burden the deportation hearing system. The Challengers’
rule would require IJs to determine the level of authority a given state or local official had
to enforce federal immigration law and to decide which test applies where officers with
differing authorities jointly execute an immigration action. It is often difficult to define
these categories with clarity. See, e.g., Maldonado v. Holder, 763 F.3d 155 (2d Cir.
2014) (describing case where local police department with no supplemental authority
under § 1357(g)(1) “jointly conduct[ed] a sting operation” with ICE and, although the
local officers actually arrested Petitioners, “ICE agents were on the scene” and “took part
in their arrests”).
In Lopez-Mendoza, the Supreme Court worried that “[t]he prospect of even
occasional invocation of the exclusionary rule might significantly change and complicate
the character of these [INA] proceedings.” 468 U.S. at 1048. Similarly, we can only
imagine the effect the Challengers’ proposed rule might have on our “deliberately simple
deportation hearing system.” See id.
The Supreme Court has “never suggested that the exclusionary rule must apply in
every circumstance in which it might provide marginal deterrence.” Herring, 555 U.S. at
141 (internal quotation marks and citation omitted). Rather, “to the extent that
application of the exclusionary rule could provide some incremental deterrent, that
possible benefit must be weighed against its substantial social costs.” Id. (internal
quotation marks and citation omitted). In light of the availability of the “egregious
violation” rule here, “there is no convincing indication that application of the [full]
13
exclusionary rule in civil deportation proceedings will contribute materially” to Fourth
Amendment protections. Lopez-Mendoza, 468 U.S. at 1046.
Rather, as in Lopez-Mendoza, the Challengers’ proposed rule would impose
significant costs, with little added benefit. See id. at 1050. We therefore hold that in
addition to federal officers, the “egregious violation” exclusionary rule also applies in
civil deportation proceedings to state and local officers. We note that no circuit to
consider whether the “egregious violation” exclusionary rule applies to state and local
officers has reached a contrary conclusion. 4
IV.
We turn to the question of whether Sanchez has established an “egregious
violation” of the Fourth Amendment.
“A petitioner challenging the admissibility of evidence in a civil removal
proceeding ‘must come forward with proof establishing a prima facie case before the
[government] will be called on to assume the burden of justifying the manner in which it
4
See Maldonado, 763 F.3d at 163 (applying egregiousness standard because, even
if ICE had not played a “substantial role” in the arrests executed by local police officers,
petitioners “fail[ed] to identify any authority applying the exclusionary rule in removal
proceedings absent an egregious constitutional violation”); Lopez-Gabriel v. Holder, 653
F.3d 683, 686 (8th Cir. 2011) (expressing “doubt that even an egregious violation by a
state officer would justify suppression of evidence in a federal immigration proceeding,”
but not resolving the required standard since no “egregious violation” occurred); see also
Aguilar-Hernandez v. Att’y Gen., 544 F. App’x 67, 69 (3d Cir. 2013) (not considering
propriety of standard, but applying egregiousness rule to conduct of state officer);
Martinez-Medina v. Holder, 673 F.3d 1029, 1033–34 (9th Cir. 2011) (same); Ghysels-
Reals v. Atty. Gen., 418 F. App’x 894, 895 (11th Cir. 2011) (same).
14
obtained the evidence’” and demonstrating the admissibility of that evidence. Yanez-
Marquez, 789 F.3d at 445 (quoting Matter of Barcenas, 19 I. & N. Dec. 609, 611 (BIA
1988) (alternation in original)). To establish this prima facie case, the moving party must
show both that a violation of the Fourth Amendment occurred and that the violation was
egregious. Id. at 450. A court may address the two prongs in either order. Id. at 451. In
this case, we need only address the egregiousness prong.
“[A]n egregious violation of the Fourth Amendment” is one that either
“transgresses notions of fundamental fairness” or “regardless of the violation’s
unfairness, undermines the probative value of the challenged evidence.” Id. at 452.
Sanchez asserts that the violation of his rights was egregious under the first standard.
To determine whether “a violation of the Fourth Amendment . . . transgresses
notions of fundamental fairness,” we consider the “totality of the circumstances.” Id. at
453, 460. This standard allows us to consider “a variety of factors” on “a flexible case-
by-case” basis. Id. at 460. These include, but are not limited to:
(1) whether the Fourth Amendment violation was intentional; (2) whether
the violation was unreasonable in addition to being illegal; (3) whether
there were threats, coercion, physical abuse, promises, or an unreasonable
show of force by the law enforcement officers; (4) whether there was no
articulable suspicion for the search or seizure whatsoever; (5) where, when,
and how the search, seizure or questioning took place; (6) whether the
search, seizure, or questioning was particularly lengthy; (7) whether the law
enforcement officers procured an arrest or search warrant; (8) any unique
characteristics of the alien involved; and (9) whether the violation was
based on racial considerations.
15
Id. at 460–61. We consider the totality of the circumstances and therefore do not discuss
every factor; rather, we focus only on those considerations that are determinative in the
case before us.
First, Sanchez suggests that because Officer Acker lacked the legal authority to
enforce civil immigration violations, his actions were per se egregious. But at the time of
the 2009 seizure at issue here, we had not yet issued our 2013 decision in Santos holding
conduct like Officer Acker’s illegal. See Santos, 725 F.3d at 465–66.
Sanchez responds, however, that “the state of circuit law [is] irrelevant” because
Officer Acker admitted that he “knew he did not have authority to enforce federal civil
immigration law.” Pet. Reply Br. at 15. This argument rests on a mischaracterization of
Officer Acker’s testimony. Before the IJ, Sanchez’s counsel asked Officer Acker, “do
you have any legal authority to enforce Federal civil Immigration violations,” to which he
replied, “No, ma’am, that’s why we detain them.” Officer Acker also explained,
consistent with his incident report, “that Mr. Sanchez was detained, not arrested.” Thus,
Officer Acker apparently believed that he could not lawfully arrest Sanchez but could
lawfully detain Sanchez, and that his actions accorded with this restriction. Of course, in
Santos we clarified that “absent express direction or authorization by federal statute or
federal officials, state and local law enforcement officers may not detain or arrest an
individual solely based on known or suspected civil violations of federal immigration
law.” 725 F.3d at 465 (emphasis added). But that was not the law at the time, and
16
Sanchez offers no evidence that Officer Acker knew that his decision to detain Sanchez
exceeded his lawful authority. Accordingly, we reject Sanchez’s argument on this point. 5
Nor are we persuaded by Sanchez’s arguments that Officer Acker lacked “any
reasonable suspicion of any . . . wrongdoing” but was instead motivated by “the fact that
the men were Latino.” See Pet. Br. at 36. These two inquiries are intertwined because
we recognize, consistent with the precedent of our sister circuits and the BIA, that a stop
based solely on race or ethnicity is per se egregious. 6 In other words, since race or
ethnicity cannot provide reasonable suspicion for a stop or seizure, where an officer relies
only on race or ethnicity, he necessarily lacks reasonable suspicion for his actions. See
United States v. Brignoni-Ponce, 422 U.S. 873, 885–86 (1975) (finding that officers
lacked reasonable suspicion for a stop where they “relied on a single factor”: “the
apparent Mexican ancestry” of the persons stopped).
5
Notwithstanding Sanchez’s contention to the contrary, we also agree with the IJ
and BIA that, in this civil context, his seizure was not “particularly lengthy” in light of
then-prevailing law. Yanez-Marquez, 789 F.3d at 460. Sanchez remained in MdTAP
custody for a total of 3.5 hours. Given ICE’s own five-hour timeline in this case, see
supra, n.1, this does not seem especially lengthy.
6
See Almeida-Amaral, 461 F.3d at 237 (“[W]ere there evidence that the stop was
based on race, the violation would be egregious, and the exclusionary rule would
apply.”); Orhorhaghe v. INS, 38 F.3d 488, 503 (9th Cir. 1994) (explaining that “a race-
based investigatory stop constitute[s] an egregious violation”); see also Matter of Toro,
17 I. & N. Dec. 340, 340, 343–44 (BIA 1980) (suggesting that a stop based “solely” on
the fact that the individual “appeared to be of Hispanic descent” would be egregious if
done in bad faith). The logic of these holdings stems from United States v. Brignoni-
Ponce, 422 U.S. 873, 884–87 (1975), which held that the Fourth Amendment “forbids
stopping or detaining persons for questioning about their citizenship on less than a
reasonable suspicion that they may be aliens,” and that reliance on only race or ethnicity
does not constitute reasonable grounds to believe the individual in question is an alien.
17
Sanchez did not establish that Office Acker acted solely on the basis of race or
ethnicity. When Officer Acker stopped Badillo, the Officer saw that the Nissan had
exposed ignition wiring and lacked a steering column, common indicators of a stolen
vehicle. The IJ found that, as a result, Officer Acker had reason to “suspect[] ongoing
criminal activity,” which “naturally” placed him on “higher alert.” When Sanchez
arrived, he parked the Acura twenty to thirty feet in front of the Nissan and remained
inside the Acura with the engine running for five minutes. The IJ credited Officer
Acker’s testimony that this was “contrary to the way individuals typically act when
picking up a friend at the scene of a traffic stop.” Although the IJ did not make a specific
finding on this point, the Officer also testified that the Acura “had extremely dark tinted
windows.” Combined, these facts led Officer Acker to conclude that the vehicle’s
occupants were acting in a “suspicious” manner and were perhaps involved in illegal
activity. Given these facts, we find no error in the IJ’s conclusion that Officer Acker did
not question Sanchez based on race or ethnicity alone. 7
Of course, even where an officer can articulate other reasonable bases for his
actions, a factfinder still considers whether, under the totality of the circumstances
inquiry, race or ethnicity motivated the officer’s actions. Here, however, the IJ was “not
persuaded that racial profiling motivated the MdTAP officers.” Sanchez contends that in
so finding, the IJ erred. He notes that Officer Acker even testified before the IJ that he
7
We note that Sanchez was not “seized” within the meaning of the Fourth
Amendment until Acker asked for the car keys and directed Sanchez to step out of the
car. Until then of course, Acker was free to ask questions and Sanchez was free not to
answer.
18
considered “the fact that the men were speaking Spanish” “a ‘real problem.’” Pet. Reply
Br. at 12. Action assertedly based on proficiency in Spanish may well be a proxy for
discrimination against Latinos. See Hernandez v. New York, 500 U.S. 352, 371 (1991)
(plurality opinion). But Officer Acker’s testimony reflects that he considered the use of
Spanish “a real problem” because he was not fluent in Spanish. Thus, Officer Acker had
to call for a Spanish-speaking officer to join him on the scene. Although Sanchez cites to
other record evidence which, if true, might offer some support for a contrary holding, 8 the
record simply does not lead us to conclude that “any reasonable adjudicator would be
compelled” to so hold. See 8 U.S.C. § 1252(b)(4)(B) (emphasis added).
Sanchez also maintains that the MdTAP officers used threats, coercion, and abuse
to obtain his admission. The IJ and BIA found that, at most, Officer Acker’s questioning
was “aggressive,” but that the MdTAP officers “showed no indication of threatening or
violent behavior” such that Sanchez lacked “the option to not answer any questions
regarding his immigration status.”
Again, Sanchez cannot meet the high standard required to overcome this factual
finding. Although Sanchez stated that when Officer Acker repeatedly asked whether the
three men were “legal or illegal,” he “felt pressured,” “intimidated,” and “frightened,”
8
The IJ only credited one such statement: that after Officer Acker asked Sanchez
whether he was “illegal or legal,” he stated that Sanchez “was illegal for sure.” The IJ
did not make specific findings with respect to the Officer’s other purported statements.
Those include, for example, Sanchez’s allegation that Officer Acker told Sanchez, “You
don’t have permission to work in this country and you are taking jobs from other people.”
If true, this statement is certainly troublesome. But the only record evidence of this
statement is Tenorio’s affidavit. Sanchez, the person to whom Officer Acker allegedly
made this comment, did not mention it in his affidavit or his testimony.
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Sanchez’s passengers did not maintain that Officer Acker coerced or threatened them.
Moreover, Officer Acker characterized his tone as “authoritative” rather than
“aggressive.” He explained that he tended to speak “a little louder” when on “the side of
the highway,” because passing vehicles impair his hearing and that it can sometimes
“seem to a person inside a vehicle that you’re yelling.” Based on all of this testimony, a
reasonable factfinder need not, but certainly could have, concluded that the MdTAP
officers did not use coercion, threats, or force. 9
V.
At its very essence, “[s]omething egregious is by nature extreme, rare, and
obvious.” Yanez-Marquez, 789 F.3d at 457 (quoting Maldonado, 763 F.3d at 165)
(internal quotation marks omitted). “Thus, to stay faithful to the dictates of the Supreme
Court, it follows that an alien’s evidentiary proffer concerning egregiousness must be
high, otherwise” courts risk undermining “the very heart of” Lopez-Mendoza. Id. at 459.
Consider Rochin v. California, 342 U.S. 165 (1952). There, three sheriffs forcibly
entered a home, saw Rochin swallow capsules that they believed contained a controlled
9
Because we hold that Sanchez failed to demonstrate that he was coerced,
threatened, or forced to make these statements, we similarly affirm the IJ’s finding that
admitting the Form I–213 did not violate Sanchez’s right to due process. To succeed on
his due process claim, Sanchez had to establish “that a defect in the proceeding rendered
it fundamentally unfair.” Amin v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008). Since
Sanchez failed to show that the Government obtained his statements in a “fundamentally
unfair” manner — i.e., as a result of “coercion, duress, or improper action” — he has not
satisfied this burden. See Yanez-Marquez, 789 F.3d at 473 (internal quotation marks and
citation omitted).
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substance, handcuffed him, took him to a hospital, and ordered a doctor to force-feed him
an emetic solution to produce vomiting to recover the capsules. Id. at 166. The Lopez-
Mendoza plurality suggested that conduct was egregious. See 468 U.S. at 1050–51
(plurality opinion).
In contrast, the plurality did not believe the conduct in Lopez-Mendoza itself rose
to that level. This was so even though in that case, officers arrested an alien at his place
of employment during a warrantless, nonconsensual raid; transported him to the county
jail; and questioned him — all without warning him of his right to remain silent. 468
U.S. at 1036–37 (majority opinion); see id. at 1050–51 (plurality opinion).
Nor did we find the conduct in Yanez-Marquez egregious. There, ICE agents
charged with executing a facially valid search warrant of the petitioner’s home broke
down her bedroom door, questioned her about her identity for five to ten minutes, and
“ripp[ed] apart” her house over several hours. 789 F.3d at 439–41. But the ICE agents
did not threaten, coerce or abuse the petitioner; the questioning was not lengthy; the
agents were not racially motivated; a circuit split existed on the question of whether a
daytime warrant authorized a nighttime search; and the agents had a valid search warrant.
Id. at 469–70. For these reasons, we held the unlawful conduct not egregious, even
though it occurred in a home and at night — two circumstances in which privacy interests
are typically strongest. See id. at 465, 472.
The sheriffs’ conduct in Rochin was quite extreme, and we do not think that a
violation must be “equally flagrant” to qualify as “egregious.” See Cotzojay v. Holder,
725 F.3d 172, 181 (2d Cir. 2013). But because the Fourth Amendment generally protects
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against “unreasonable” conduct, “an egregious violation must surely be something more
than unreasonable.” Id. at 182. Given that neither Lopez-Mendoza nor Yanez-Marquez
met this standard, we cannot hold that the facts in this case compel a different result.
In light of the demanding standard, we must conclude that Sanchez has not carried
his burden of proving a prima facie case of egregiousness.
VI.
For the foregoing reasons, the petition for review is
DENIED.
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