Luis Sanchez v. Jefferson Sessions

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ENRIQUE SANCHEZ, AKA No. 14-71768

Enrique Cruz Sanchez, AKA Luis

Llamas Sanchez, AKA Luis Charles Agency No.

Sanchez, AKA Enrique Sanchez A076-359-028

Cruz, AKA Luis Enrique Sanchez

Llamas,

Petitioner, OPINION

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted March 8, 2017

Pasadena, California

Filed August 30, 2017

Before: Harry Pregerson, Richard A. Paez,

and Morgan B. Christen, Circuit Judges.

Opinion by Judge Pregerson;

Concurrence by Judge Pregerson;

Concurrence by Judge Christen

2 SANCHEZ V. SESSIONS

SUMMARY *

Immigration

The panel granted, reversed, and remanded Luis Enrique

Sanchez’s petition for review of the Board of Immigration

Appeals’ decision affirming an immigration judge’s

decision denying Sanchez’s motion to suppress evidence of

his alienage and ordering his removal.

The panel held that Coast Guard officers who detained

Sanchez committed an egregious Fourth Amendment

violation because they seized Sanchez based on his Latino

ethnicity alone. Accordingly, the panel held that the

immigration judge erred in failing to suppress the Form I-

213 (Record of Deportable/Inadmissible Alien), which was

prepared after his immigration arrest and which the

Government introduced to establish Sanchez’s alienage and

entry without inspection. The panel also concluded that

Sanchez was not seized at the United States border, where

Fourth Amendment protections are lower.

The panel further held that, because Coast Guard officers

detained Sanchez solely on the basis of his Latino ethnicity,

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

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

may briefly detain an individual only if the officer has

“reasonable suspicion, based on specific articulable facts”

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

in the United States. Accordingly, the panel held that

Sanchez’s removal proceedings must be terminated based on

*

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

has been prepared by court staff for the convenience of the reader.

SANCHEZ V. SESSIONS 3

the regulatory violation because the regulation is designed to

benefit Sanchez, and Sanchez was prejudiced by the

violation.

Because the panel concluded Sanchez’s proceedings

should have been terminated based on the regulatory

violation, the panel did not reach the question whether

Sanchez’s previously-submitted Family Unity Benefits and

Employment applications, which the Government also

introduced to establish alienage, are indirect fruits of the

poisonous tree. The panel granted Sanchez’s petition for

review and remanded to the Board with instructions to

terminate Sanchez’s removal proceedings.

Concurring, Judge Pregerson wrote separately to explain

why it is unfair for the Government to encourage noncitizens

to apply for immigration relief, and later use statements in

those relief applications against them in removal

proceedings. Judge Pregerson expressed concern about the

Government’s argument that the exclusionary rule does not

apply to Sanchez’s Family Unity Benefits and Employment

Authorization applications because they predated the

egregious constitutional violation. He wrote that

categorically exempting pre-existing applications from the

exclusionary rule in this way allows law enforcement to

unconstitutionally round up migrant-looking individuals,

elicit their names, and then search through Government

databases to discover incriminating information in pre-

existing immigration records.

Concurring, Judge Christen agreed that the case did not

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

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

show that Sanchez’s boat had sailed from international

waters. Judge Christen also agreed that Sanchez’s removal

4 SANCHEZ V. SESSIONS

proceedings must be terminated based on the regulatory

violation.

COUNSEL

John Wolfgang Gehart (argued), Lourdes Barrera Haley,

Elena Yampolsky, and Carlos Vellanoweth, Vellanoweth &

Gehart LLP, Los Angeles, California, for Petitioner.

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

Litigation Counsel; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

PREGERSON, Circuit Judge:

INTRODUCTION

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

took some friends on a fishing trip within United States

territorial waters, and ended up in removal proceedings

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

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

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

in the water because of engine failure near Channel Islands

Harbor in Oxnard, California. His friend issued a distress

call, and responding United States Coast Guard officers

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

recreational harbor. When they arrived at Channel Islands

Harbor, eight Coast Guard officers were waiting for Sanchez

and his companions. The Coast Guard officers immediately

SANCHEZ V. SESSIONS 5

detained, frisked, and arrested Sanchez and his companions.

The Coast Guard officers contacted Customs and Border

Protection because the officers suspected that Sanchez and

his companions were “undocumented worker[] aliens.”

Sanchez was then placed in removal proceedings. The

matter before us is limited to Sanchez’s removal

proceedings.

During removal proceedings before the IJ, the

Government sought to establish Sanchez’s alienage and his

entry into the United States without inspection by

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

Deportable/Inadmissible Alien) that was prepared by a

Customs and Border Protection officer after Sanchez’s

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

and Employment Authorization applications.

At the removal hearing before the IJ, Sanchez moved to

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

Employment Authorization applications as the fruits of an

egregious Fourth Amendment violation. Sanchez argued

that the Coast Guard officers egregiously violated his Fourth

Amendment rights by detaining him based on his Latino

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

and ordered Sanchez removed to Mexico. The Board of

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

Review timely followed.

We grant Sanchez’s Petition for Review. We conclude

that the Coast Guard officers committed an egregious Fourth

Amendment violation and violated an immigration

regulation because they seized Sanchez based on his Latino

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

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

Family Unity Benefits and Employment Authorization

applications. Additionally, because Sanchez has shown that

6 SANCHEZ V. SESSIONS

the Government violated its own regulation that is designed

to benefit Sanchez, and that Sanchez was prejudiced by the

violation, we hold that Sanchez’s removal proceedings must

be terminated.

FACTUAL BACKGROUND

Luis Enrique Sanchez’s Immigration History

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

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

States without inspection in March 1988 when he was

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

life – he has lived in Ventura County, California.

On May 11, 2004, Sanchez submitted Family Unity

Benefits and Employment Authorization applications to the

United States Citizenship and Immigration Service

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

which granted him authorization to reside and work in the

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

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

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

USCIS denied Sanchez’s applications because Sanchez had

three misdemeanor convictions for violations of California’s

Vehicle Code, and was therefore ineligible for Family Unity

Benefits. 2 8 C.F.R. § 236.13(b).

1

Sanchez qualified for Family Unity Benefits through his father

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

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

2

On September 16, 1993, Sanchez was convicted of violating

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

§ 12500(a) (driving without a license), and § 40508(b) (failing to pay

SANCHEZ V. SESSIONS 7

Fishing Trip and Immigration Arrest

On February 25, 2010, Sanchez, two adult Latino

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

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

departed from the Channel Islands Harbor, a recreational

harbor near Port Hueneme in Oxnard, California. Sanchez

declared that he and his companions did not travel outside

United States territorial waters; indeed, that they did not

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

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

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

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

waters extend to 12 nautical miles).

About thirty minutes into the fishing trip, the small

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

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

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

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

Coast Guard officers towed Sanchez’s boat back to Channel

Islands Harbor.

Upon arriving at Channel Islands Harbor around

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

waiting onshore for Sanchez and his companions. Once

Sanchez and his companions disembarked the boat, the

Coast Guard officers immediately detained and frisked them.

The Coast Guard officers demanded that Sanchez and his

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

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

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

California Vehicle Code § 12500(a) (driving without a license).

8 SANCHEZ V. SESSIONS

companions hand over their identifications and belongings.

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

The Coast Guard officers told Sanchez and his

companions that they were not allowed to leave. When

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

Coast Guard officer told Sanchez not to ask any questions

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

testified that the Coast Guard officers asked him only two

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

(2) where do you live?

A Coast Guard officer could not “establish positive

identity or nationality” of Sanchez. 3 Without any other

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

and Border Protection to report “the possibility of

4 undocumented worker[] aliens.” 4

About two hours later, Customs and Border Protection

officers arrived at Channel Islands Harbor and detained the

men for two more hours, during which time someone arrived

to pick up the infant. Customs and Border Protection

officers then transported Sanchez and the two adult Latino

males to a Customs and Border Protection facility. The

3

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

prepared after Sanchez’s arrest, the following Government computer

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

returned “negative” results: the Automated Fingerprint Identification

System; the Consular Consolidated Database; the National Crime

Information Center; and the Treasury Enforcement Communications

System.

4

There is no indication that Coast Guard officers searched

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

carried contraband.

SANCHEZ V. SESSIONS 9

Customs and Border Protection officers detained and

interrogated Sanchez, strip searched him, and retained his

identification and wallet. Through this questioning,

Customs and Border Protection officers obtained

information about Sanchez’s alienage and entry into the

United States. Customs and Border Protection released

Sanchez later that night.

Customs and Border Protection Officer Carlos Rubio

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

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

admission that he was undocumented and had entered the

United States without inspection. The Form I-213 also

stated that the Coast Guard officers suspected that Sanchez

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

and thereafter contacted Customs and Border Protection.

PROCEDURAL BACKGROUND

Nine months after the fishing trip, on November 10,

2010, the United States Department of Homeland Security

served Sanchez with a Notice to Appear for removal

proceedings. The Government charged Sanchez as

removable. On December 27, 2011, Sanchez appeared with

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

charges of removability.

5

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

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

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

immigration official “with biographical information about a

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

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

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

10 SANCHEZ V. SESSIONS

At the removal hearing before the IJ, the Government

established Sanchez’s alienage and that he entered the

country without inspection by submitting the following

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

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

Unity Benefits and Employment Authorization applications.

Sanchez filed a motion to suppress these documents and

to terminate proceedings. He argued that the documents

should be suppressed because the Government obtained and

produced those documents in violation of his Fourth

Amendment rights when they seized and detained him solely

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

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

proceedings. The IJ denied Sanchez’s motion to suppress

and ordered Sanchez removed to Mexico.

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

again argued that the Coast Guard officers racially targeted

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

BIA affirmed the IJ’s decision and further concluded that

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

independently derived from a routine record search based on

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

timely followed.

6

Sanchez submitted a declaration in support of his motion to

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

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

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

with his declaration.

7

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

and Employment Authorization applications.

SANCHEZ V. SESSIONS 11

JURISDICTION & STANDARD OF REVIEW

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

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

its own reasoning, we review both decisions. Lopez-

Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011).

We review constitutional claims and questions of law de

novo. Id.

DISCUSSION

The central issue on appeal is a constitutional and legal

question: whether the evidence establishing Sanchez’s

alienage and his entry without inspection (i.e., the Form I-

213) must be suppressed as the fruits of an egregious Fourth

Amendment violation. Lopez-Rodriguez v. Mukasey,

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

rule applies in civil removal proceedings where a

noncitizen’s Fourth Amendment rights are egregiously

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

34 (9th Cir. 2011).

For the exclusionary rule to apply in civil removal

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

facie case that law enforcement violated his or her Fourth

Amendment rights; and (2) that the Fourth Amendment

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

1016. Once a prima facie case and egregiousness are

established, the burden shifts to the Government to defend

the constitutionality of its actions. Matter of Barcenas,

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

to adequately defend the constitutionality of its actions, the

noncitizen’s motion to suppress should be granted.

Thus, to resolve whether Sanchez can suppress the

Government’s evidence establishing his alienage and that he

12 SANCHEZ V. SESSIONS

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

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

seized at the border, where Fourth Amendment protections

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

case that the Coast Guard officers violated his Fourth

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

egregious.

We answer these questions below and conclude that the

Coast Guard officers committed an egregious Fourth

Amendment violation and violated an immigration

regulation when they seized Sanchez based on his Latino

ethnicity alone. The exclusionary rule therefore applies, and

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

is tainted by the underlying egregious Fourth Amendment

violation. We also hold that the immigration judge erred by

failing to terminate Sanchez’s removal proceedings based on

the Coast Guard officers’ violation of an immigration

regulation. We do not reach the issue whether the Family

Unity Benefits and Employment Authorization applications

should have been suppressed.

I. Was Sanchez seized at the United States border?

The Government argues that the Coast Guard officers

seized Sanchez at the United States border, where Fourth

Amendment protections are lower. We disagree.

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

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

neither a warrant, probable cause, nor even articulable

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

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

border, however, and searches or seizures that implicate a

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

States v. Flores-Montano, 541 U.S. 149, 152 (2004).

SANCHEZ V. SESSIONS 13

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

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

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

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

seas when reasonably certain facts suggested that the vessel

sailed from international waters, United States v. Tilton,

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

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

entry. Sanchez was seized at Channel Islands Harbor, which

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

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

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

is a recreational harbor about one mile from the Port

Hueneme port of entry.

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

entered United States territorial waters from international

waters. The Coast Guard officers first encountered

Sanchez’s boat in United States territorial waters only two

miles from a recreational fishing harbor. There is nothing in

the record that shows whether Sanchez’s small boat came

from international waters, or whether the Coast Guard asked

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

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

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

We conclude that the Coast Guard officers did not seize

Sanchez at the United States border. Therefore, the lower

Fourth Amendment standard does not apply. Accordingly,

we must determine whether Sanchez established a prima

facie case that the Coast Guard officers’ actions were

unreasonable under the ordinary Fourth Amendment

standard.

14 SANCHEZ V. SESSIONS

II. Did Sanchez establish a prima facie case that the

Coast Guard officers violated his Fourth Amendment

rights?

Under the ordinary Fourth Amendment standard,

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

and another person escalates to the point where it is

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

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

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

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

enforcement officer to seize a person the officer presumes is

undocumented based solely on the person’s appearance or

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

and interrogate an individual simply because of his foreign-

sounding name or his foreign-looking appearance risks

allowing race or national-origin to determine who will and

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

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

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

apparent Mexican descent was not enough to constitute

reasonable suspicion).

First, Sanchez argues that immediately after he

disembarked his boat, the Coast Guard officers seized him

based on his Latino ethnicity alone. An encounter with law

enforcement becomes a seizure when a reasonable person,

considering the totality of the circumstances, would not feel

“free to decline the officers’ requests or otherwise terminate

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

(1991). It is undisputed that immediately upon being

brought ashore, eight Coast Guard officers were waiting for

Sanchez and his companions. It is further undisputed that

the Coast Guard officers (1) immediately detained and

frisked Sanchez, (2) demanded that Sanchez provide

SANCHEZ V. SESSIONS 15

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

until someone else questioned him, (4) instructed Sanchez

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

Considering the totality of the circumstances, we

conclude that Sanchez was seized immediately as he

disembarked his boat at Channel Islands Harbor because a

reasonable person in Sanchez’s position would not have felt

free to decline the Coast Guard officers’ requests or

otherwise terminate the encounter.

Second, Sanchez argues that the Coast Guard officers

detained him based on his Latino ethnicity alone. When the

Coast Guard officers seized Sanchez, they did not explicitly

state that they seized him and his companions because they

are Latinos. But the Government has not offered a

satisfactory alternative explanation for the warrantless

seizure.

The Government’s only evidence explaining the Coast

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

Customs and Border Protection Officer Rubio after

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

Guard officers reported Sanchez to Customs and Border

Protection because the officers suspected that Sanchez and

his companions were “undocumented worker[] aliens.”

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

officers seized and detained Sanchez based on his Latino

ethnicity alone. Accordingly, the Coast Guard officers’

conduct was unreasonable. We therefore conclude that

Sanchez established a prima facie case that the Coast Guard

officers violated his Fourth Amendment rights.

16 SANCHEZ V. SESSIONS

III. Did the Coast Guard officers egregiously violate

Sanchez’s Fourth Amendment rights?

A Fourth Amendment violation alone does not trigger

the exclusionary rule in civil removal proceedings: the

exclusionary rule only applies if the Government’s Fourth

Amendment violation is egregious. Lopez-Rodriguez,

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

established a prima facie case that the Coast Guard officers

violated his Fourth Amendment rights, we must consider

whether the Coast Guard officers’ conduct was egregious.

A Fourth Amendment violation is egregious if “evidence

is obtained by deliberate violations of the Fourth

Amendment, or by conduct a reasonable officer should have

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

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

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

reasonable officer should have known that his or her conduct

violates the Constitution if the case law clearly established

that such conduct was unconstitutional. Id. at 1450.

Sanchez argues that a reasonable Coast Guard officer

would have known that the case law clearly established that

it was unconstitutional to seize him based on his Latino

ethnicity alone. We agree.

In 1975, the Supreme Court pronounced in Brignoni-

Ponce that “[e]ven if [the authorities] saw enough to think

that the occupants were of Mexican descent, this factor alone

would justify neither a reasonable belief that they were

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

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

422 U.S. at 886.

SANCHEZ V. SESSIONS 17

In 1994, nineteen years later, this court in Gonzalez-

Rivera held that it was an egregious constitutional violation

when an officer detained an immigrant because of his ethnic

appearance and other not credible reasons because case law

had clearly established the unconstitutionality of seizing a

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

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

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

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

plaintiffs alleged that they were detained based on their

ethnic appearance, this court held that there was not an

egregious violation because the sheriff seized the plaintiffs

after he knew that the plaintiffs were not legally present in

the country. 673 F.3d at 1037.

As discussed, the Coast Guard officers did not have any

information other than Sanchez’s Latino ethnicity when they

initially seized him on suspicion of being an “undocumented

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

seized Sanchez, the principle from Brignoni-Ponce that a

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

unconstitutional was clearly established as it had been on the

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

the Coast Guard officers did not know that Sanchez was not

legally present in the country when they seized him.

Because the case law clearly established that seizing a

person solely based on ethnic appearance was

unconstitutional, a reasonable Coast Guard officer should

have known that he or she was violating the Fourth

Amendment by seizing Sanchez based on his Latino

ethnicity alone.

We therefore conclude that Sanchez satisfied his initial

burden for suppressing the Form I-213 because he

18 SANCHEZ V. SESSIONS

established a prima facie that the Coast Guard officers

egregiously violated his Fourth Amendment rights.

IV. Is the Form I-213 suppressible?

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

removal hearing to establish his alienage and that he entered

the country without inspection. Sanchez argues that the

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

the Coast Guard officers’ egregious Fourth Amendment

violation.

Because we conclude that Sanchez has established a

prima facie case that the Coast Guard officers egregiously

violated Sanchez’s Fourth Amendment rights, the burden

shifts to the Government to defend the constitutionality of

the Coast Guard officers’ actions. Matter of Barcenas,

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

Coast Guard officers’ actions, then the exclusionary rule

applies to all direct products of the seizure, which here

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

Government’s arguments in defense of the Coast Guard

officers’ unconstitutional actions lack merit.

First, the Government cites a number of cases to argue

that Coast Guard officers may reasonably question persons

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

Coast Guard officers’ actions were constitutional because

there were suspicious circumstances that justified the search

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

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

Coast Guard officers’ search of a fishing boat was

reasonable under the Fourth Amendment because the

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

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

at 589–92 (finding that the Coast Guard officers’

SANCHEZ V. SESSIONS 19

“suspiciousless” boarding of a sailboat was constitutional

because the sailboat’s markings indicated that it was from

Switzerland and the officers inspected the sailboat’s

documents at a designated port of entry to establish that the

sailboat was authorized to enter the country).

These cases are clearly distinguishable from Sanchez’s

case because here there was a complete lack of suspicious

circumstances. Sanchez was not carrying contraband, the

Coast Guard officers did not ask Sanchez what he was doing

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

the Coast Guard officers boarded Sanchez’s boat to inspect

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

Guard officers to suspect that Sanchez had done anything

unlawful or traveled from international waters.

Second, the Government argues that Coast Guard

regulations 8 authorized the Coast Guard to seize Sanchez

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

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

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

to adequately defend the constitutionality of its seizure.

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

Government introduced to establish Sanchez’s alienage and

8

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

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

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

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

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

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

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

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

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

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

12324, 46 Fed. Red. 48, 109 (Sept. 29, 1981).

20 SANCHEZ V. SESSIONS

entry without inspection, must be suppressed. We do not

reach whether Sanchez’s Family Unity Benefits and

Employment Authorization applications are indirect fruits of

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

removal proceedings should have been terminated because

the Government violated immigration regulations.

V. Did the Coast Guard officers violate an immigration

regulation that is meant to protect Sanchez? If so,

was the violation prejudicial?

Sanchez argues that the Coast Guard officers violated an

immigration regulation when they seized him without

reasonable suspicion that he had violated any laws. 9 We

agree.

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

officer may briefly detain an individual only if the officer

“has a reasonable suspicion, based on specific articulable

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

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

alien illegally in the United States.”

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

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

basis of his Latino ethnicity, with no reasonable suspicion

that criminal activity was afoot. 10

9

Because we find one regulatory violation, we need not consider

whether the Coast Guard and Customs and Border Protection officers

also violated the other regulations.

10

These immigration regulations apply to the Coast Guard officers

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

shall “be deemed to be acting as agents of the particular executive

SANCHEZ V. SESSIONS 21

When the Government violates its own immigration

regulation, a noncitizen’s deportation proceeding may be

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

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

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

potentially the outcome of the[] deportation proceeding.”

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

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

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

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

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

Government violated a regulation in an immigration case).

The immigration regulation that the Coast Guard

violated here was meant to preserve Sanchez’s privacy and

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

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

suspicion, rather than allowing for detention solely on the

basis of race, protects against racial stereotypes influencing

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

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

profiling and unjust detention clearly fall within the

regulations’ purposes.

The violation of this regulation also certainly prejudiced

Sanchez. “Where compliance with the regulation is

mandated by the Constitution, prejudice may be presumed.”

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

with the regulation requiring reasonable suspicion for

detention was mandated by the Fourth Amendment.

department or independent establishment charged with the

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

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

22 SANCHEZ V. SESSIONS

Because the Government violated a regulation meant to

benefit Sanchez, and because he was prejudiced by that

violation, Sanchez’s removal proceedings must be

terminated. See United States ex rel. Accardi v.

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

an agency violates its own regulations in making a given

determination, that determination is invalidated); Matter of

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

deportation proceedings may be “invalidated” in the case of

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

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

promulgated to protect a fundamental right derived from the

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

to it, the challenged deportation proceeding is invalid and a

remand to the agency is required.”).

CONCLUSION

For the foregoing reasons, we GRANT Sanchez’s

Petition for Review and REMAND to the BIA with

instructions to terminate Sanchez’s removal proceedings.

PETITION FOR REVIEW GRANTED.

REVERSED and REMANDED.

PREGERSON, Circuit Judge, concurring:

I write separately to explain why it is unfair for the

Government to encourage noncitizens to apply for

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

relief applications against noncitizens in removal

proceedings.

SANCHEZ V. SESSIONS 23

The Government should not be permitted to use

noncitizens’ applications for immigration relief to remove

noncitizens from their homes and their families in our

country. When the Government enacts immigration relief

programs, it encourages noncitizens to apply because there

are “significant social costs borne by our Nation when select

groups are denied the means to absorb the values and skills

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

202, 220 (1982).

The Government asks noncitizens to provide personal

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

visas, deferred action, and work authorization. But because

noncitizens are afraid that the Government could at a later

date use that information against them, many are reluctant to

apply. See Angélica Cházaro, Challenging the “Criminal

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

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

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

authorization and a social security number, involves

stepping into the potential net of immigration

enforcement.”).

The Government’s practice in this regard contradicts the

principle of welcoming immigrants into our communities.

This practice also contradicts President Kennedy’s view that

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

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

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

encourage, not punish, noncitizens who come out of the

shadows seeking avenues to lawful status.

I am also concerned about the Government’s argument

that the exclusionary rule does not apply to Sanchez’s

Family Unity Benefits and Employment Authorization

applications because they predate the egregious

24 SANCHEZ V. SESSIONS

constitutional violation. See United States v. Del Toro

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

Categorically exempting applications that predate an

egregious constitutional violation from the exclusionary rule

allows immigration and other law enforcement agencies to

prey on migrant and working-class communities. Law

enforcement officers can unconstitutionally round up

migrant-looking individuals, elicit their names, and then

search through Government databases to discover

incriminating information in pre-existing immigration

records. See Eda Katharine Tinto, Policing the Immigrant

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

Nothing prevents law enforcement from engaging in this

unfair tactic if, as the Government contends, immigration

records that predate an egregious constitutional violation can

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

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

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

constitutional guaranty in the only effectively available

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

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

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

would effectively be served only by excluding the very

evidence sought to be obtained by the primary illegal

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

This troubling end-around the exclusionary rule corrupts

our justice system. The Government should not be allowed

to flout the protections of the Fourth Amendment and then

use a noncitizen’s application for immigration relief against

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

between migrant communities and law enforcement.

SANCHEZ V. SESSIONS 25

CHRISTEN, Circuit Judge, concurring:

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

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

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

from international waters. See United States v. Villamonte-

Marquez, 462 U.S. 579, 591–93 (1983); United States v.

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

The record shows that Sanchez provided identification

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

the Coast Guard ran several computer searches that yielded

negative results. Despite the absence of hits in these various

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

reason for detaining Sanchez was that the Coast Guard “was

not able to establish positive identity or nationality.” But

Sanchez had provided proof of his identity and the Coast

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

his identification was invalid. Nor did its computer searches

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

prima facie showing, the government failed to offer “specific

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

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

regulation intended to benefit Sanchez. Because the

violation was clearly prejudicial to Sanchez, see Matter of

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

that his removal proceedings must be terminated.