Maria Yanez-Marquez v. Eric Holder, Jr.

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: A072-726-316. [999602573]. [13-1605]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1605

MARIA YANEZ-MARQUEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued:

September 17, 2014

Before KING and
Circuit Judge.

FLOYD,

Circuit

Decided:

Judges,

and

June 16, 2015

HAMILTON,

Senior

Petition denied by published opinion.
Senior Judge Hamilton
wrote the opinion in which Judge King and Judge Floyd joined.

ARGUED: Amanda Hunnewell Frost, AMERICAN UNIVERSITY, Washington,
D.C., for Petitioner.
Jonathan Aaron Robbins, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Margaret Hobbins, MAGGIO & KATTAR, Washington, D.C., for
Petitioner. Stuart F. Delery, Assistant Attorney General, Civil
Division, Daniel E. Goldman, Senior Litigation Counsel, Office
of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

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HAMILTON, Senior Circuit Judge:
Maria Yanez-Marquez (Yanez), a native and citizen of El
Salvador, petitions for review of a Board of Immigration Appeals
(BIA)

decision

Immigration

dismissing

Judge

(IJ)

her

appeal

from

her

removal

ordering

the

order

from

the

of

an

United

States to El Salvador.

Prior to ordering Yanez’s removal, the

IJ

to

denied

terminate
petition

her
the

for

motion
removal

review

suppress

proceeding.

is

her

certain
At

challenge

the
to

evidence
center

the

of

denial

and

to

Yanez’s
of

this

motion, which was premised on, inter alia, alleged egregious
violations

of

her

Fourth

Amendment

rights.

For

the

reasons

stated below, we deny the petition for review.

I
A
Because the IJ denied Yanez’s motion to suppress and to
terminate without an evidentiary hearing, we review the evidence
in the light most favorable to Yanez.

Cotzojay v. Holder, 725

F.3d 172, 178 (2d Cir. 2013).
In

June

2008,

agents

from

the

Immigration

and

Customs

Enforcement (ICE) were investigating Robert Bontempo, Jr. and
Rebecca

Bontempo,

the

owners

(APS).

The agents suspected that the Bontempos employed and

harbored illegal aliens.

of

Annapolis

Painting

Services

The Bontempos owned a property, 402
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Harbor

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Drive,

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Annapolis,

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Maryland

(the

Premises),

which

ICE

surveillance revealed was occupied by Jose Umana Ruiz (Umana),
an illegal alien and El Salvadorian citizen.

Unbeknownst to the

agents, Yanez, an illegal alien and Umana’s long-time partner,
also lived at the Premises.

In June 2008, Yanez was five months

pregnant.
In an affidavit in support of a search warrant for the
Premises and numerous other houses owned by the Bontempos that
were tied to the housing of illegal aliens, ICE Special Agent
Francis Coker (Agent Coker) outlined the extensive background
evidence

concerning

how

employers

employ

and

house

illegal

aliens, and the extensive evidence concerning how APS and the
Bontempos
included

engaged
a

in

picture

of

such
the

practices. 1

The

Premises

described

and

affidavit
it

also
as

a

“single-family home[,] a single story building with a shingled
roof.”

(J.A. 524). 2

A mailbox, with the number “402,” is

1

The search warrant itself incorporated by reference Agent
Coker’s affidavit, thus avoiding any difficulty with the Supreme
Court’s decision in Groh v. Ramirez, 540 U.S. 551 (2004).
See
United States v. Hurwitz, 459 F.3d 463, 470-71 (4th Cir. 2006)
(“As a general rule, a supporting affidavit or document may be
read together with (and considered part of) a warrant that
otherwise lacks sufficient particularity ‘if the warrant uses
appropriate words of incorporation, and if the supporting
document accompanies the warrant.’” (quoting Groh, 540 U.S. at
557-58)).
2

The picture of the Premises included in Agent Coker’s
affidavit shows a single story home with a gable roof. It shows
(Continued)
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located in front of the Premises.

(J.A. 524).

The affidavit

noted that Anne Arundel County land records reflected a sale of
the Premises from Jennifer Scott to the Bontempos in October
2000 for the sum of $156,000.00.
The search warrant that accompanied Agent Coker’s affidavit
had two boxes on its front side, where the issuing judge was
required

to

designate

authorized to occur.
6:00

A.M.

to

10:00

the

time

of

day

when

the

search

was

The “daytime” box read “in the daytime-P.M.”

(J.A.

455).

Meanwhile,

the

alternative “any time” box read “at any time in the day or night
as I find reasonable cause has been established.”
In

issuing

the

warrant

for

the

Premises,

a

(J.A. 455).

United

States

Magistrate Judge in the District of Maryland checked only the
daytime box and struck the language next to the any time box
that would have authorized a nighttime search as follows:

“at

any time in the day or night as I find reasonable cause has been
established.”

(J.A. 455) (strikeout in original).

Thus, the

warrant for the Premises authorized a daytime search only, to be
conducted between 6:00 a.m. and 10:00 p.m.

The warrant also

specified that the search was to be completed on or before July
4, 2008.

The scope of the items to be seized under the warrant

two windows in the roof facing the street and one window on the
right gable end.
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was

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broad

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and

included

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illegal

aliens,

travel

documents,

financial records, and photographs of harbored aliens.
The magistrate judge issued the search warrant on June 24,
2008.

The search of the Premises took place six days later, on

the morning of Monday, June 30, 2008.
several

ICE

agents,

along

with

Prior to the search,

officers

of

the

Anne

Arundel

County Police Department, assembled in an Annapolis parking lot
for a briefing.

ICE Agent Sean Currie (Agent Currie), the ICE

search team leader, assigned responsibilities for the search.
After the briefing, the search team proceeded to the Premises,
which was ten to fifteen minutes away by car, to execute the
warrant.
According to Yanez, the search warrant was executed at the
Premises at 5:00 a.m. 3

Agent Currie knocked on the front door

which was answered by another occupant of the Premises, Jose
Mendoza-Gomez
seated

on

the

(Mendoza),
couch

in

who

immediately

the

living

room

was
for

handcuffed
officer

After detaining Mendoza, two agents proceeded upstairs.

and

safety.
Umana

and Yanez were awakened by the yelling of “police” and a loud
banging on their bedroom door.

(J.A. 141).

3

Umana and Yanez had

Agent Currie and ICE agent Richard Federico,
Federico) executed declarations that were presented
In their respective declarations, they assert that
began at 6:02 a.m. The return on the search warrant
the search was completed at 8:56 a.m., but it fails
when the search began.
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Sr. (Agent
to the IJ.
the search
states that
to indicate

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been planning to sleep later than normal that morning because
Yanez had the day off from work.

She felt groggy and confused

because “it seemed like it was the middle of the night.”
141).

She

had

no

idea

what

was

going

on.

Umana

(J.A.
clothed

himself, but before he could reach the locked door, the ICE
agents broke it down, causing the door to hit Umana’s hand.
agents “burst” into the room and screamed “police.”

Two

(J.A. 142).

One agent grabbed Umana’s neck and threw him to the ground.

The

other held a gun to Umana’s head while pinning his body and face
to the floor.

The agents screamed “don’t move.”

(J.A. 142).

Once Umana was held down, an agent pointed a gun at Yanez’s head
and yelled “don’t move.”

(J.A. 142).

Yanez, who was wearing a

“nightshirt,” cried and pleaded for permission to cover herself
“with more clothes.”

(J.A. 142).

The agent again screamed

“don’t move” and pointed his gun at her head.

(J.A. 142).

Umana told the agents that Yanez was pregnant and begged them to
allow

her

assistance
okay.”

to
and

get

dressed.

came

(J.A. 142).

to

A

Yanez,

female
telling

agent
her

was

that

called
“it

for

will

be

Yanez was scared that she or Umana would be

harmed, and she was not allowed to use the restroom.

Although

an agent was speaking in Spanish, loud noise obstructed Yanez
from

hearing.

downstairs.

The
Yanez

agents
grabbed

handcuffed
a

Umana

“T-shirt

to

and
put

nightshirt” as she was led downstairs at gunpoint.
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escorted
over

him

[her]

(J.A. 143).

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Downstairs, Yanez saw four ICE agents in the living room.
She was told to join Umana on the couch.

Although the occupants

denied that anyone else was in the house, the agents knocked
down doors and found no one.

For five to ten minutes, the

agents questioned the occupants about their identities, asking
repeatedly
denied

about

knowing

Annapolis

anything

Painting

about

the

Services.
company.

The
The

occupants

agents

were

“extremely hostile,” and Yanez thought that someone would be
harmed if they did not answer the questions.

(J.A. 143).

The

agents then took the occupants’ fingerprints and escorted Umana
and Mendoza away.

Yanez was “never shown a warrant, [never]

told that [she] had a right to an attorney, [and never told]
that [she] could refuse to answer any questions.”

(J.A. 143).

The ICE agents searched the entire house, “ripp[ing] apart
each

room

that

they

went

through,”

kicking

scattering documents, and turning over furniture.
During the search, Yanez again was questioned.

down

doors,

(J.A. 144).

The agents asked

her if she had a car and keys for it, which Yanez conceded.
Yanez felt she had no choice but to surrender the keys.
was searched.

Her car

The agents told Yanez that she “had” to sign

“several pieces of paper,” although she did not want to sign
them, asked why she had to sign, and did not understand what
they said.

(J.A. 144).

Despite no one reading or explaining

the documents to her, she signed them.
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Before leaving, an ICE agent told Yanez that she would get
a letter from “the Immigration Court” and warned her not to move
to a different location.

(J.A. 145).

When the agents left at

9:15 a.m., they took many of Yanez’s belongings, including her
pay stubs, tax returns, and photo albums.

These items were

never returned.
After the search, Yanez left the Premises and spent the
night

at

Premises

her
the

sister-in-law’s
following

day

to

house.
find

She
the

returned

landlord’s

to

the

employees

“hauling” off her and Umana’s “belongings . . . to the trash
dump.”

(J.A. 145).

Later that day, Yanez experienced stress

and severe abdominal pain that she believes were caused by the
search, seizure, and questioning.

At 5:30 p.m., she was taken

to the hospital where she was treated and released after a few
hours.

Upon her release from the hospital, Yanez was told her

unborn child would be “alright.”

(J.A. 145).

Yanez’s statements to the ICE agents were memorialized on
two

“Form

I–213s”

(Record

of

Deportable/Inadmissible

4

Alien). 4

“A Form I–213 is an official record routinely prepared by
an [immigration officer] as a summary of information obtained at
the time of the initial processing of an individual suspected of
being an alien unlawfully present in the United States.” Bauge
v. INS, 7 F.3d 1540, 1543 n.2 (10th Cir. 1993). “Form I–213[s]
. . . are records made by public officials in the ordinary
course of their duties, and accordingly evidence strong indicia
of reliability.”
Felzcerek v. INS, 75 F.3d 112, 116 (2d Cir.
1996).
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The

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forms

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state

that

Yanez

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is

a

native

and

citizen

of

El

Salvador and that she “last entered the United States on or
about April 2007 without inspection.”
further

reveal

that

Yanez

has

been

(J.A. 453).
illegally

The forms

present

in

the

United States since her April 2007 entry.
B
On July 10, 2008, the Department of Homeland Security (DHS)
issued a notice to appear to Yanez.

The notice alleged that

Yanez was “an alien present in the United States who had not
been

admitted

or

paroled.”

(J.A.

547);

see

also

8

U.S.C.

§ 1182(a)(6)(A)(i) (rendering inadmissible an alien who has not
been

properly

admitted

or

paroled).

In

support

of

this

allegation, the notice alleged that Yanez: (1) was not a United
States citizen; (2) was a native and citizen of El Salvador; (3)
entered the United States at an unknown location on an unknown
date; and (4) was not “admitted or paroled after inspection by
an Immigration Officer.”
On
Intended

February

10,

Evidence,”

(J.A. 547).

2010,
which

the

DHS

filed

designated

the

its

“Submission

evidence

the

of
DHS

intended to introduce in the removal proceeding as follows: (1)
the two Form I–213s; (2) the search warrant executed for the
Premises; and (3) the affidavit in support of the warrant.

In

response, on April 21, 2010, Yanez filed a “motion to suppress
and

to

terminate

removal

proceedings.”
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(J.A.

106).

Yanez

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claimed

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that,

questioning,
Amendment
rights,

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during
the

ICE

rights,
and

regulations.

the

June

agents

violated

failed

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30,

search,

egregiously
her

to

2008

Fifth

follow

seizure,

violated

Amendment

five

her
due

applicable

and

Fourth
process
federal

In her motion, Yanez stressed that the Supreme

Court’s decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984),
permitted the application of the exclusionary rule in a civil
removal proceeding where the Fourth Amendment violations were
either widespread or egregious.
More specifically, Yanez first claimed that the ICE agents
egregiously

violated

her

Fourth

Amendment

rights

when

they

executed the search warrant at 5:00 a.m. instead of between 6:00
a.m. and 10:00 p.m.

Second, Yanez claimed that the warrant’s

lack of particularity egregiously violated her Fourth Amendment
rights in that (1) she was not specified as an “item” to be
seized in the warrant and (2) the agents should have known the
Premises was a “two-floor, multi-family dwelling.”
Third,

Yanez

claimed

that

her

Fourth

(J.A. 118).

Amendment

rights

were

egregiously violated when the agents used excessive force during
the search and seizure.
Amendment

violations

Fourth, she claimed that the Fourth

committed

by

the

widespread pattern of ICE misconduct.
the

agents

rights

when

violated
they

her

Fifth

coerced

agents

were

Due

into

making

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of

a

Fifth, Yanez claimed that

Amendment

her

part

Process

Clause

incriminating

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statements.
different

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Finally, she claimed that the agents violated five
federal

§ 287.8(b)(2)

regulations,

(permitting

an

in

particular,

immigration

officer

8
to

C.F.R.
detain

a

person for questioning if he has reasonable suspicion “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”), 8 C.F.R. § 287.8(c)(2)(i) (“An arrest shall
be made only when the designated immigration officer has reason
to

believe

that

the

person

to

be

arrested

has

committed

an

offense against the United States or is an alien illegally in
the United States.”), 8 C.F.R. § 287.8(c)(2)(ii) (“A warrant of
arrest shall be obtained except when the designated immigration
officer

has

reason

escape

before

a

§ 287.8(a)(1)(iii)

to

believe

warrant
(“A

that

can

the

be

designated

person

is

obtained.”),

immigration

likely
8

to

C.F.R.

officer

shall

always use the minimum non-deadly force necessary to accomplish
the officer’s mission and shall escalate to a higher level of
non-deadly
warranted

force
by

the

only

when

actions,

such

higher

apparent

level

intentions,

of
and

force

is

apparent

capabilities of the suspect, prisoner or assailant.”), and 8
C.F.R. § 287.3(c) (which requires that an alien who is arrested
without a warrant and placed in formal removal proceedings be
informed that she has a right to an attorney and provided with a
list of attorneys that provide free legal services).
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In its response, the DHS first argued that the exclusionary
rule does not apply to civil removal proceedings, also relying
on

the

Supreme

Court’s

decision

in

Lopez-Mendoza.

The

DHS

stressed that the Court in Lopez-Mendoza “did not affirmatively
state

that

egregious

Fourth

Amendment

violations

are

an

exception to the Court’s holding that the Fourth Amendment’s
exclusionary

rule

proceedings.”

is

inapplicable

(J.A. 47).

in

civil

deportation

Alternatively, the DHS argued that,

even if the exclusionary rule applied, Yanez failed to set forth
facts establishing a prima facie case of an egregious violation
of

her

Fourth

Amendment

rights

or

a

&

N.

Dec.

609,

611

(BIA

of

her

Fifth

See Matter of Barcenas, 19

Amendment Due Process Clause rights.
I.

violation

1988)

(noting

that

petitioner

challenging the admissibility of evidence in removal proceeding
is

required

to

establish

prima

a

facie

case

for

exclusion).

Finally, the DHS argued that the ICE agents did not violate any
applicable

regulations,

and,

even

if

they

justify suppressing the challenged evidence.

did,

it

did

not

Along with its

motion, the DHS submitted the declarations of Agent Currie and
Agent Federico.

These declarations take issue with not only

Yanez’s timing assertions, but also her assertions concerning
the manner in which the search, seizure, and questioning were
carried out.
In

her

decision

denying

the

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motion

to

suppress

and

to

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terminate, the IJ first rejected the DHS’s contention that the
exclusionary rule did not apply in civil removal proceedings,
relying on Lopez-Mendoza and BIA precedent.

The IJ then set

forth the prima facie case framework, noting that Yanez bore the
initial
Fourth

burden

of

Amendment

alleging

violation.

facts
The

constituting
IJ

then

an

turned

egregious
to

Yanez’s

substantive claims and rejected each one of them.
In rejecting Yanez’s claim that the ICE agents committed
egregious Fourth Amendment violations, the IJ stated:
With respect to the timing of entry, even if ICE
agents entered “at 5 a.m.” as the Respondent asserts,
the Court cannot find that such a violation of the
terms of the warrant — by a single hour — would be
egregious.
That simply does not amount to conduct
that “shocks the conscience.”
With respect to the
entry into the bedroom, even if an officer . . . had
simply come upon the locked door, banged on it,
announced his presence, and forced it open with
another officer, the Court cannot conclude that such
action would be egregious.
The agents were executing
a search warrant. . . . The alleged timing of entry
into the residence and method of entry into the
bedroom were not egregious violations.
(J.A. 543).
force

used

Turning next to Yanez’s challenge to the amount of
by

the

agents,

the

IJ

rejected

this

challenge,

noting:
With respect to the force used by the officers in the
home, the Court cannot conclude that excessive force
was used, even considering solely the Respondent’s
account.
The Respondent’s affidavit claims that an
officer held a gun to her head.
The Respondent
acknowledges that both officers were screaming, “don’t
move!” in English and Spanish. . . .
The Respondent
indicates that her partner told the officers that the
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Respondent was pregnant and asked that she be allowed
to put on more clothes. She also indicates that when
the officers heard this, they asked for a female
officer to come up to the bedroom.
These actions,
while
no
doubt
extremely
frightening
for
the
Respondent, are consistent with ensuring officer
safety and enabling the officers to control a
potentially dangerous situation.
There is no showing
that greater than necessary force was used or that
weapons were drawn any longer than necessary.
The
Respondent acknowledges that the officers identified
themselves as police and repeatedly shouted at them
not to move.
She acknowledges that a female officer
was called as soon as her partner told them that she
was pregnant. She also acknowledges that she was not
put in handcuffs, that she was not taken out of the
house for further processing, and that she was not
placed in immigration detention.
The actions of the
agents and the other officers were reasonable under
the circumstances and reflect that ICE officials took
appropriate account of the Respondent’s pregnancy
throughout the operation.
As such, those actions
cannot be found to be egregious.
(J.A. 544).
With regard to Yanez’s claim that the ICE agents violated
her Fifth Amendment Due Process Clause rights, the IJ rejected
this claim, concluding that the circumstances as a whole did not
“reflect an atmosphere of coercion and intimidation that would
render [Yanez’s] statements involuntary.”

(J.A. 544).

Next, the IJ rejected two of the five regulatory claims
pressed

by

Yanez.

First,

the

IJ

rejected

Yanez’s

§ 287.8(a)(1)(iii) claim on the basis that she had “not made a
sufficient showing that excessive force was used.”

(J.A. 545).

Second, the IJ rejected the § 287.3(c) claim because the DHS’s
notice to appear had sufficiently advised Yanez of her right to
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counsel.

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As for the three remaining regulatory claims, for some

inexplicable

reason,

(§ 287.8(b)(2),

§

the

IJ

quoted

287.8(c)(2)(i),

the

regulations

§ 287.8(c)(2)(ii)),

but

did

not explain her reasoning for rejecting the claims.
The

IJ

argument.

then

addressed

Yanez’s

widespread

ICE

misconduct

The IJ rejected this argument, finding “no basis to

suppress evidence in this case on the basis of what may or may
not have occurred in other cases or during other enforcement
operations.”

(J.A. 546).

The IJ concluded her opinion by noting that Yanez had “not
met

her

burden

suppression

of

of

establishing

evidence

a

obtained

in

prima

facie

violation

of

case
the

for

Fourth

Amendment, the Fifth Amendment, ICE regulations, or on any other
theory.”

(J.A. 546).

Accordingly, the IJ denied the motion to

suppress and to terminate.
On

December

satisfied

its

13,

burden

convincing evidence.

2010,
of

the

IJ

proving

found

that

removability

the
by

DHS

had

clear

and

See Karimi v. Holder, 715 F.3d 561, 566

(4th Cir. 2013) (“In removal proceedings, the government bears
the burden of proving removability . . . by clear and convincing
evidence.”).

Because Yanez had not sought relief from removal,

the IJ ordered that Yanez be removed from the United States to
El Salvador.
On January 11, 2011, Yanez filed a notice of appeal with
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the BIA.

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In her brief filed with the BIA on April 1, 2011,

Yanez reiterated all of the arguments that she raised before the
IJ, save one.

She did not claim, as she did before the IJ, that

the Fourth Amendment violations committed by the ICE agents were
part

of

a

officials.

larger,

widespread

pattern

of

misconduct

by

ICE

To be sure, Part III D of Yanez’s motion to suppress

and to terminate filed with the IJ raises the widespread pattern
claim in a section following Part III C iv of the motion, which
raised the § 287.3 claim.

In her brief filed with the BIA, the

conclusion section of the brief follows the § 287.3 claim, and
the

brief

contains

no

argument

concerning

widespread

constitutional violations committed by ICE officials.
On April 7, 2011, the DHS filed its brief with the BIA.
urging

the

BIA

to

affirm

the

IJ’s

decision,

the

In
DHS

“incorporate[d] by reference the entirety” of the brief it filed
with the IJ.

(J.A. 8).

On April 15, 2013, the BIA dismissed Yanez’s appeal.

In

its decision, the BIA first noted that the exclusionary rule
does not apply in civil removal proceedings unless the alleged
Fourth Amendment violation is egregious.
Yanez’s

claim

that

the

ICE

agents

Next, the BIA rejected

egregiously

violated

her

Fourth Amendment rights, relying on the reasoning of the IJ.
The

BIA

Yanez’s

also
Fifth

adopted

the

Amendment

reasoning
Due

Process

- 16 -

of

the

Clause

IJ

in

claim

rejecting
and

her

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regulatory claims under § 287.8(a)(1)(iii) and § 287.3(c).
regard

to

the

three

regulations

the

IJ

quoted

but

With

did

not

address, § 287.8(b)(2), § 287.8(c)(2)(i), and § 287.8(c)(2)(ii),
the BIA determined that no remand was necessary because the IJ
adequately

addressed

the

nature

of

Yanez’s

“detention

and

interrogation, as well as the warrant used by the ICE officers.”
(J.A. 5).

As a result, the BIA affirmed the IJ’s decision and

dismissed Yanez’s appeal.
Yanez filed a timely petition for review under 8 U.S.C.
§ 1252.

II
A
When

the

BIA

affirms

and

adopts

an

IJ’s

decision

and

includes its own reasons for affirming, we review both decisions
as the final agency action.
171, 177 (4th Cir. 2014).

Legal conclusions made by the IJ and

the BIA are reviewed de novo.
F.3d

117,

124

(4th

Cir.

Ai Hua Chen v. Holder, 742 F.3d

Crespin–Valladares v. Holder, 632

2011).

We

must

uphold

the

BIA’s

decision unless it is “manifestly contrary to the law and an
abuse of discretion.”
Cir. 2011).

Tassi v. Holder, 660 F.3d 710, 719 (4th

The BIA abuses its discretion if it fails “to offer

a reasoned explanation for its decision, or if it distort[s] or
disregard[s] important aspects of the applicant’s claim.”
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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 obtained the evidence.”

Matter of Barcenas, 19 I. & N. Dec.

at 611 (citation and internal quotation marks omitted).
this

burden-shifting

framework,

“if

the

petitioner

Under

offers

an

affidavit that could support a basis for excluding the evidence
. . . , it must then be supported by testimony.”

Maldonado v.

Holder, 763 F.3d 155, 160 (2d Cir. 2014) (citation and internal
quotation marks omitted).

Upon the establishment of a prima

facie case by the petitioner, the burden of proof shifts to the
government to demonstrate why the IJ should admit the challenged
evidence.

Id.

In the case before us, both the IJ and the BIA applied this
framework and concluded that Yanez did not establish a prima
facie

case

any

of

It

hearing.

on

is

this

her

claims

conclusion

to

warrant

that

a

suppression

Yanez

principally

challenges in this court.
B
In her petition for review, Yanez presses claims under the
Fourth
claims.

and

Fifth

Amendments,

as

well

as

certain

regulatory

The heart of her case is that the Fourth Amendment’s

exclusionary rule requires the suppression of all statements and
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documentation
obtained
Yanez

by

regarding
the

contends

ICE
that,

her

Pg: 19 of 92

national

agents,

origin

including

without

the

the

two

and
two

Form

citizenship
Form

I–213s.

I–213s

and

her

statements, the government cannot meet its burden of proving her
alienage

and

removability,

and,

proceeding should be terminated.

therefore,

her

removal

At a minimum, Yanez claims

that her affidavit and other record evidence provide a basis in
which

to

evidentiary

exclude

the

hearing

challenged

is

evidence,

required.

To

such

that

resolve

an

Yanez’s

contentions, we must first decide whether the Fourth Amendment’s
exclusionary rule applies in the civil removal proceeding before
us.
C
The Fourth Amendment protects the “right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.”

U.S. Const. amend. IV.

Although the Fourth Amendment “contains no provision expressly
precluding

the

use

of

evidence

obtained

in

violation

of

its

commands,” Arizona v. Evans, 514 U.S. 1, 10 (1995), to deter
violations

of

the

Fourth

Amendment,

the

Supreme

Court

established the exclusionary rule, Weeks v. United States, 232
U.S. 383, 398 (1914), which, “when applicable, forbids the use
of improperly obtained evidence at [a criminal] trial.”

Herring

v. United States, 555 U.S. 135, 139 (2009); see also Lopez–
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Mendoza, 468 U.S. at 1040–41 (“The general rule in a criminal
proceeding is that statements and other evidence obtained as a
result of an unlawful, warrantless arrest are suppressible if
the link between the evidence and the unlawful conduct is not
too attenuated.”).

“[T]he exclusionary sanction applies to any

‘fruits’ of a constitutional violation--whether such evidence be
tangible,

physical

material

actually

seized

in

an

illegal

search, items observed or words overheard in the course of the
unlawful activity, or confessions or statements of the accused
obtained during an illegal arrest and detention.”

United States

v. Crews, 445 U.S. 463, 470 (1980) (footnotes omitted).
Given the “substantial social costs” of the application of
the exclusionary rule, United States v. Leon, 468 U.S. 897, 907
(1984), namely, “the loss of often probative evidence and all of
the secondary costs that flow from the less accurate or more
cumbersome adjudication that therefore occurs,” Lopez–Mendoza,
468 U.S. at 1041, “the exclusionary rule is not a remedy we
apply

lightly,”

(2006).

Sanchez-Llamas

Indeed,

the

Supreme

v.

Oregon,

Court

has

548

U.S.

331,

347

cautioned

that

the

exclusionary rule’s “massive remedy,” Hudson v. Michigan, 547
U.S. 586, 595 (2006)--the suppression of evidence--is “our last
resort, not our first impulse,” id. at 591.
While

the

applicability

of

the

exclusionary

rule

in

a

criminal proceeding is settled, the applicability of the rule in
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a civil removal proceeding is not.

The Supreme Court has never

applied the rule in a removal proceeding.
Mendoza,

the

Supreme

Court

held

that

In fact, in Lopez–

the

exclusionary

generally does not apply in removal proceedings.

rule

468 U.S. at

1034; see also United States v. Oscar-Torres, 507 F.3d 224, 230
(4th

Cir.

2007)

exclusionary

rule

(“Lopez-Mendoza
does

not

establishes

apply

in

civil

that

the

deportation

proceedings.”).
In

Lopez–Mendoza,

Sandoval-Sanchez

Adan

(Sandoval),

Lopez-Mendoza
two

(Lopez)

citizens

of

and

Mexico,

Elias
were

summoned to separate removal proceedings, and both were ordered
deported after such proceedings.

468 U.S. at 1034.

Immigration

and Naturalization Service (INS) agents arrested Lopez at his
place

of

employment,

a

transmission

repair

shop,

without

a

warrant to search the repair shop or a warrant to arrest anyone
there.

Id. at 1035.

The repair shop owner refused to permit

the agents to speak with his employees during work hours.
However,

while

one

agent

engaged

the

repair

shop

owner

Id.
in

conversation, another agent entered the repair shop and spoke
with Lopez.

Id.

While he was being questioned, Lopez told the

agent his name and that he was from Mexico with no close family
ties in the United States.
under

arrest,

he

was

Id.

transported

After the agent placed Lopez
to

an

INS

office

where

he

admitted that he was born in Mexico, was still a citizen of
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Mexico, and had entered the United States without inspection by
immigration officials.
At
removal

his

proceeding

illegally.
was

removal

not

Id.

Id.
hearing,
on

moved

to

terminate

basis

that

he

was

the

Lopez

the

arrested

The IJ held that the legality of Lopez’s arrest

germane

to

the

removal

proceeding,

and,

declined to rule on the legality of the arrest.

therefore,

Id.

On the

basis of the Form I-213 and an affidavit executed by Lopez, the
IJ

ordered

that

Lopez

be

removed

from

the

United

States

to

Id. at 1035-36.

Mexico.
On

appeal

to

appeal.

Id. at 1036.

illegal

arrest

the

the

BIA

dismissed

Lopez’s

The BIA noted that the “mere fact of an

has

no

Id.

proceeding.”
omitted).

BIA,

bearing

(citation

on
and

a

subsequent

internal

deportation

quotation

marks

On Lopez’s petition for review, the Ninth Circuit

vacated Lopez’s removal order and remanded the case to the BIA
for a determination of whether Lopez’s Fourth Amendment rights
were violated when he was arrested.
The

second

petitioner

in

Id.

Lopez-Mendoza,

Sandoval,

was

arrested at his place of employment, a potato processing plant
in Pasco, Washington.

Id.

INS agents went to the plant, with

the permission of its personnel manager, to check for illegal
aliens.

Id.

During a shift change, plant workers were asked

innocuous questions in English by INS agents as they entered the
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plant to work.

Id. at 1037.

approached

entrance

the

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Upon seeing the INS agents as he

to

the

plant,

head, turned around, and walked away.”

Sandoval
Id.

“averted

his

Sandoval was among

the thirty-seven people detained and transported to a county
jail.

Id.

At the jail, Sandoval was questioned by an INS agent

and admitted, in a written statement, that he unlawfully entered
into the United States.
At

his

removal

Id.
hearing,

Sandoval

contended

that

the

evidence offered by the INS should be suppressed as the fruit of
an

unlawful

arrest.

The

Id.

IJ

considered

and

rejected

Sandoval’s claim that he had been illegally arrested, but ruled
in

the

alternative

that

the

legality

relevant to the removal hearing.
record

of

removable.
On
appeal.

Sandoval’s

of

Id.

admissions,

the

arrest

was

not

Based on the written
the

IJ

found

him

Id. at 1038.

appeal
Id.

to

the

BIA,

the

BIA

dismissed

Sandoval’s

The BIA declined to invoke the exclusionary rule,

concluding that the circumstances of the arrest had not affected
the

voluntariness

of

Sandoval’s

written

Id.

statement.

On

Sandoval’s petition for review, the Ninth Circuit reversed the
removal order.

Id.

The Ninth Circuit opined that Sandoval’s

detention by the INS agents violated the Fourth Amendment, that
the statements he made were a product of that detention, and
that

the

exclusionary

rule

barred
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their

use

in

a

removal

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Id.

In resolving the cases before it, the Supreme Court quickly
disposed of Lopez’s challenge to his removal order because the
“mere fact of an illegal arrest has no bearing on a subsequent
deportation proceeding.”

Id. at 1040 (citation and internal

quotation marks omitted).

According to the Court, “[t]he ‘body’

or identity of a defendant or respondent in a criminal or civil
proceeding

is

never

itself

suppressible

as

a

fruit

of

an

unlawful arrest, even if it is conceded that an unlawful arrest,
search, or interrogation occurred.”

Id. at 1039.

Sandoval’s case meaningfully differed from that of Lopez’s
case in that Sandoval challenged the admissibility of evidence
at

his

removal

jurisdiction
(noting
personal

hearing,

that,

challenge.
in

while
Cf.

Lopez

Oscar-Torres,

Lopez-Mendoza,

jurisdictional

only

Lopez’s

challenge,

raised
507

case

that

is,

a

personal

F.3d

only

at

229

raised

Lopez

a

sought

“suppression of [his] body,” while Sandoval conceded personal
jurisdiction, but sought to suppress the evidence in his removal
proceeding).

Indeed, the Court in Lopez-Mendoza observed that

Sandoval had “a more substantial claim” because “[h]e objected
not to his compelled presence at a deportation proceeding, but
to evidence offered at that proceeding.”

468 U.S. at 1040.

As

a result, the Court considered whether the exclusionary rule
should apply to prohibit the government from using illegally
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evidence

Pg: 25 of 92

of

alienage

removal proceeding.

Sandoval’s

against

him

in

his

Id. at 1040–41.

In determining whether to apply the exclusionary rule in a
removal

proceeding,

the

Supreme

Court

in

Lopez-Mendoza

noted

that removal proceedings are “purely civil,” id. at 1038, the
purpose
rather

of
to

which
put

is
an

immigration laws.”

“not
end

to

to

punish
a

past

continuing

Id. at 1039.

transgressions

but

violation

the

of

The Court emphasized that the

evidentiary protections that apply in criminal proceedings do
not apply in removal proceedings because: (1) criminal trials
adjudicate

the

defendant’s

guilt,

whereas

removal

proceedings

determine the alien’s “eligibility to remain in this country”;
and (2) unlike criminal trials, removal hearings do not impose
punishment on the alien.

Id. at 1038.

Given this, the Court

characterized the intent of a removal hearing as a “streamlined
determination of eligibility to remain in this country, nothing
more.”

Id. at 1039.

Viewing a removal proceeding through the proper lens, the
Court employed a cost-benefit analysis to determine whether to
apply the exclusionary rule to removal proceedings, id. at 104150, weighing the “social benefits of excluding unlawfully seized
evidence against the likely costs.”

Id. at 1041; cf. Leon, 468

U.S. at 906-08 (concluding that evidence obtained pursuant to
the good faith reliance on a defective warrant should not be
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excluded because the cost of exclusion outweighed the benefit of
deterrence); United States v. Janis, 428 U.S. 433, 454 (1976)
(declining

to

apply

the

exclusionary

rule

to

a

civil

tax

proceeding because the cost of exclusion outweighed the benefit
of deterrence).

On the benefit side of the ledger, the Court

proffered

reasons

four

why,

in

the

context

of

removal

proceedings, the deterrent value of the exclusionary rule was
significantly reduced.

468 U.S. at 1043-46.

First, the Court

opined that, because deportability can be proven by evidence
independent

of

the

arrest,

irrelevant.

the

Id. at 1043-44.

legality

of

the

arrest

was

Second, the Court noted that very

few undocumented aliens actually challenge removal orders based
on

Fourth

Amendment

grounds,

making

it

“unlikely”

that

an

immigration agent would “shape his conduct in anticipation of
the exclusion of evidence” at a removal hearing.

Id. at 1044.

Third, because the INS already had its own comprehensive scheme
for deterring Fourth Amendment violations, application of the
exclusionary rule was unnecessary.
the

Court

remedies,

reasoned
such

as

that
civil

the
or

Id. at 1044-45.

availability

criminal

of

Finally,

sanctions

alternative
against

the

immigration official, further undermined the deterrent value of
the exclusionary rule.
The
exclusion.

Id. at 1045.

Lopez-Mendoza
First,

the

Court
Court

then

turned

observed

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to

that

the
the

cost

of

effect

of

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applying the exclusionary rule required courts “to close their
eyes to ongoing violations of the law.”
applying

the

exclusionary

rule

would

Id. at 1046.

significantly

the “simple” and “streamlined” deportation system.

Second,

complicate

Id. at 1048.

Finally, the Court opined that, with respect to the apprehension
of over one million undocumented aliens each year, expecting
immigration agents to provide written details of each arrest and
to

attend

suppression

hearings

would

the

benefits

of

burden

the

Id. at 1048-49.

administration of immigration laws.
Weighing

severely

exclusion

against

the

likely

costs, the Court in Lopez-Mendoza was persuaded that the scales
tipped

against

proceedings.

applying

the

Id. at 1050.

exclusionary

rule

in

removal

In particular, the Court emphasized

that the “costs” of applying the exclusionary rule in removal
proceedings

are

“high,”

noting

that

such

application

“would

compel the courts to release from custody persons who would then
immediately resume their commission of a crime through their
continuing, unlawful presence in this country.”
After

concluding

that

the

Id.

exclusionary

rule

was

inapplicable to removal proceedings because the costs outweighed
the benefits, a plurality of the Court in Lopez-Mendoza appeared
to

limit

the

scope

of

its

holding

by

apparently

reserving

judgment for cases that presented a “good reason to believe that
Fourth

Amendment

violations
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by

INS

officers

were

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widespread.”

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Id.

1050. 5

at

Pg: 28 of 92

In

carving

out

this

apparent

limitation, the plurality emphasized that its holding “[did] not
deal . . . with egregious violations of Fourth Amendment or
other

liberties

fairness

and

obtained.”

that

might

undermine

the

transgress
probative

notions
value

of

of

fundamental

the

evidence

Id. at 1050-51 (footnote omitted).

Four Justices dissented in Lopez-Mendoza.

Each of these

four Justices opined that the exclusionary rule should apply in
See id. at 1052 (White, J., dissenting)

removal proceedings.

(“I believe that the conclusion of the majority is based upon an
incorrect assessment of the costs and benefits of applying the
rule

in

[removal

id.

proceedings].”);

at

1051

(Brennan,

J.,

dissenting) (“I fully agree with Justice White that . . . the
exclusionary rule must apply in civil deportation proceedings”
not

because

it

is

a

deterrent

but

because

“of

the

Fourth

Amendment itself.”); id. at 1060 (Marshall, J., dissenting) (“I
agree with Justice White that . . . [Supreme Court precedent]
compels the conclusion that the exclusionary rule should apply
in civil deportation proceedings.”); id. at 1061 (Stevens, J.,
dissenting) (“Because the Court has not yet held that the rule
5

While Chief Justice Burger joined the parts of the opinion
(Parts I to IV) holding that the exclusionary rule did not apply
in removal proceedings, he did not join in the part of the
opinion (Part V) recognizing that egregious or widespread Fourth
Amendment
violations
might
warrant
application
of
the
exclusionary rule.
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.

.

.

Filed: 06/16/2015

[Leon]

.

.

.

has

Pg: 29 of 92

any

application

to

warrantless

searches, I do not join the portion of Justice WHITE’s opinion
that

relies

remainder

on

of

position

of

justices

his
the

in

that

case.

I

dissenting

four

do,

justices,

seem

to

have

with

the

Considering

opinion.”).

dissenting

Lopez-Mendoza

however,

agree

the

a

total

agreed

of

eight

that

the

exclusionary rule should apply in removal proceedings in some
form.
Since
applied

Lopez-Mendoza

the

was

exclusionary

decided,

rule

variety of circumstances.

in

circuit

removal

courts

proceedings

have
in

a

See, e.g., Cotzojay, 725 F.3d at 179-

83 (addressing whether warrantless entry into alien’s home was
egregious

Fourth

Amendment

violation);

Oliva-Ramos

v.

Att’y

Gen., 694 F.3d 259, 278-79 (3d Cir. 2012) (addressing whether
ICE

agents’

entry

into

apartment

and

seizure

of

the

alien

egregiously violated the Fourth Amendment, and whether the ICE
agents’

conduct

was

part

of

a

widespread

pattern

of

Fourth

Amendment misconduct); Puc-Ruiz v. Holder, 629 F.3d 771, 779
(8th

Cir.

egregiously

2010)

(addressing

violated

the

whether
Fourth

the

arrest

Amendment);

of

the

alien

Kandamar

v.

Gonzales, 464 F.3d 65, 71 (1st Cir. 2006) (addressing whether
alien’s statements were obtained in egregious violation of the
Fourth

Amendment

and

the

Due

Process

Clause

of

the

Fifth

Amendment); Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-37 (2d
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2006)

Filed: 06/16/2015

(addressing

whether

Pg: 30 of 92

the

alien’s

seizure

was

an

egregious Fourth Amendment violation); Gonzalez-Rivera v. INS,
22 F.3d 1441, 1449 (9th Cir. 1994) (addressing whether stop of
alien egregiously violated the Fourth Amendment).

Such courts

have applied the rule even though the Court’s limiting language
in Lopez-Mendoza could be labeled as “dicta” in that the Court
arguably

reserved

judgment

on

whether

the

exclusionary

rule

applies in the event of an egregious Fourth Amendment.

See,

e.g., Oliva-Ramos, 694 F.3d at 275 (noting that the apparent
limitation in Lopez-Mendoza could be characterized as dicta).
In our case, the IJ, the BIA, and the Attorney General all
agree that the exclusionary rule applies in removal proceedings
to egregious violations of the Fourth Amendment. 6
have

not

had

occasion

to

consider

the

Although we

application

of

the

exclusionary rule in removal proceedings in a published opinion, 7

6

Before the IJ and the BIA in this case, the DHS took the
position that the exclusionary rule does not apply in removal
proceedings under any circumstances.
However, the Attorney
General, who represents the government in this court, takes a
position contrary to that of the DHS, and his position
concerning the exclusionary rule is binding on the DHS.
See 8
U.S.C. § 1103(a)(1) (providing that the Secretary of Homeland
Security
“shall
be
charged
with
the
administration
and
enforcement of . . . all . . . laws relating to the immigration
and naturalization of aliens . . . [p]rovided, however, [t]hat
determination and ruling by the Attorney General with respect to
all questions of law shall be controlling”).
7

In unpublished decisions, we have recognized the
application of the exclusionary rule in removal proceedings.
(Continued)
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we are in agreement with those courts that have concluded that
the

rule

applies

Amendment. 8

To

to

hold

egregious
otherwise

violations

would

give

of

no

the

effect

Fourth
to

the

language used by the Supreme Court in Lopez-Mendoza expressing
concern over fundamentally unfair methods of obtaining evidence
and would ignore the fact that eight justices in Lopez-Mendoza
seem

to

have

agreed

that

the

exclusionary

removal proceedings in some form.

rule

applies

in

Moreover, even assuming the

Court’s limitation in Lopez-Mendoza could be construed as dicta,
we simply cannot ignore the import of the language used by the
Supreme Court in that case.

See United States v. Fareed, 296

F.3d 243, 247 (4th Cir. 2002) (following “dictum endorsed by six
justices”

of

the

Supreme

Court

and

citing

Gaylor

v.

United

States, 74 F.3d 214, 217 (10th Cir. 1996) (stating that federal
appellate

court

is

“‘bound

by

Supreme

Court

firmly as by the Court’s outright holdings’”)).

dicta

almost

as

Accordingly, we

See, e.g., Samuels v. INS, 993 F.2d 1539, at *1 (4th Cir. 1993)
(unpublished) (“We reject Samuels’ arguments that her confession
should have been suppressed because of alleged Fifth Amendment
violations.
The Supreme Court has made clear that the
exclusionary rule does not apply in civil deportation cases,
absent ‘egregious’ constitutional violations. . . . We perceive
no egregious violations here.” (footnote omitted)).
8

All of Yanez’s egregiousness claims pertain to alleged
Fourth Amendment violations.
Consequently, we do not decide
what “other liberties” fall within the egregiousness exception.
Lopez-Mendoza, 468 U.S. at 1050.
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hold that the exclusionary rule applies in removal proceedings
where the challenged evidence has been obtained by “egregious
violations of [the] Fourth Amendment . . . that might transgress
notions

of

fundamental

fairness

and

value of the evidence obtained.”

undermine

the

probative

Lopez–Mendoza, 468 U.S. at

1050-51.
Under this holding, an alien seeking the application of the
exclusionary

rule

to

a

Fourth

Amendment

claim

in

a

removal

hearing faces two hurdles at the prima facie case stage.

First,

she must allege facts that state a violation of her rights under
the Fourth Amendment.

Oliva-Ramos, 694 F.3d at 275.

Second,

the alien must show that the alleged violation of the Fourth
Amendment was egregious.

Id.

To get an evidentiary hearing,

the alien must satisfy both prongs.

See Maldonado, 763 F.3d at

162 (“Petitioners were required to proffer affidavits based on
personal

knowledge

that,

taken

as

true,

could

support

suppression.

Had their affidavits been sufficient, they would

have

opportunity

had

an

evidentiary hearing.”).

to

confirm

those

allegations

in

an

If an evidentiary hearing is warranted,

the alien will have the opportunity to present testimony and
evidence in support of her Fourth Amendment claim.

Id.

Upon

the establishment of a prima facie case, the burden of proof
shifts to the government to demonstrate why the IJ should admit
the challenged evidence.

Id.
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court

reviewing

the

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alien’s

claim

may,

but

is

not

required to, address both the constitutional and egregiousness
prongs.
choose

Like a § 1983 qualified immunity inquiry, the court can
to

decline

violation

has

to

address

occurred

and

whether
first

a

Fourth

address

egregiousness prong has been satisfied.

Amendment

whether

the

See, e.g., Martinez

Carcamo v. Holder, 713 F.3d 916, 922 (8th Cir. 2013) (holding
that alleged Fourth Amendment violations were not egregious and
declining

to

address

whether

Fourth

Amendment

violations

had

occurred); Martinez-Medina v. Holder, 673 F.3d 1029, 1034 (9th
Cir. 2011) (“However, we need not and do not decide whether the
seizure violated Petitioners’ Fourth Amendment rights because we
conclude that, even if the seizure violated Petitioners’ Fourth
Amendment
also

rights,

Pearson

v.

the

violation

Callahan,

was

555

not

U.S.

egregious.”);

223,

235-37

see

(2009)

(explaining that, in deciding the question of § 1983 qualified
immunity, the court may, but is not required to, address both
the constitutional and clearly established prongs; rather, it
may decide the case solely on the clearly established prong).
Thus, if the alien fails to allege facts sufficient to show that
an

immigration

relief

can

be

official
denied

has

alone

violated
on

that

the

Fourth

basis.

Cf.

Amendment,
Evans

v.

Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (“[I]f a plaintiff
fails to allege that an official has violated any right, the
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official ‘is hardly in need of any immunity and the analysis
ends right then and there.’” (quoting Abney v. Coe, 493 F.3d
412, 415 (4th Cir. 2007))).

Alternatively, relief can be denied

where

allege

the

alien

official

fails

to

egregiously

Amendment.

facts

that

immigration

the

violated

an

Fourth

See Maldonado, 763 F.3d at 160 (“The affidavits in

this case do not suggest egregious constitutional violations,
and

therefore

evidence.”
omitted)).

could

(brackets,

not

support

citation,

a

and

basis

for

internal

excluding

quotation

the

marks

If there is an evidentiary hearing on the alien’s

claim, relief can be denied if the alien fails to meet her
evidentiary burden on either prong.

Oliva-Ramos, 694 F.3d at

279.
D
As noted above, an alien seeking to invoke the exclusionary
rule in a removal proceeding must demonstrate: (1) a violation
of her Fourth Amendment rights; and (2) that the violation was
egregious.

While

constitutional

violation

facts

establishing

Amendment,

Chalmers,

the

standard
prong

a
703

is

for

at

the

straightforward--alleging

violation
F.3d

establishing

of
646--the

the

Fourth

standard

for

establishing the egregiousness prong is not so straightforward.
The

confusion,

and

hence

uncertainty,

of Lopez-Mendoza.
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stems

from

Part

V

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1
Part V of Lopez-Mendoza sanctions the application of the
exclusionary rule in cases where the evidence was obtained as a
result of “egregious violations of Fourth Amendment or other
liberties that might transgress notions of fundamental fairness
and undermine the probative value of the evidence obtained.”
468 U.S. at 1050–51.

The exact meaning of this statement is far

from clear.
The
Fourth

plain

meaning

Amendment

of

this

violation

statement

must

suggests

the

notions

“transgress

that

of

fundamental fairness” and “undermine the probative value of the
evidence

obtained.”

Id.

However,

closer

inspection

of

the

context of this statement reveals that the Supreme Court meant
to use the disjunctive “or” instead of the conjunctive “and” to
create two avenues of relief instead of one such avenue.

In

other words, an egregious violation of the Fourth Amendment is:
(1)

a

notions

violation
of

of

the

fundamental

Fourth

Amendment

fairness;

that

or

violation

(2)

a

transgresses
of

the

Fourth Amendment that, regardless of the violation’s unfairness,
undermines
evidence.
egregious

the

probative

value

of

the

challenged

See Oliva-Ramos, 694 F.3d at 278 (concluding that an
constitutional

constitutional

violation

alternatively,

a

violation
that

constitutional

was

involves

fundamentally

violation

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either

that,

unfair

regardless

a
or,
of

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its unfairness, undermined the probative value of the obtained
evidence); Almeida-Amaral, 461 F.3d at 234 (“The [Lopez-Mendoza]
Court,
instead

seemingly
of

the

inadvertently,
disjunctive

used

‘or’

to

the
link

conjunctive
these

two

‘and’

possible

grounds for deeming a violation egregious.”); Gonzalez-Rivera,
22 F.3d at 1451 (holding that a “fundamentally unfair Fourth
Amendment violation is considered egregious regardless of the
probative value of the evidence obtained”).
To be sure, the Lopez-Mendoza Court justified its exception
for egregious constitutional violations by citing four cases in
which the evidence was reliable (and therefore its probative
value was not undermined), but nevertheless suppressible because
its admission was fundamentally unfair.

The first case cited

was Rochin v. California, 342 U.S. 165 (1952).
officers

obtained

involvement
induce

by

forcing

vomiting

so

morphine

capsules.

probative

evidence

used

offended

probative

even

him

they
Id.

was

evidence

to

of

ingest

emetic

could
at

illegally

conscience” of the Court.

an

recover

166.

“hardened

There, police

The

Court

sensibilities”

and

to

swallowed

held

because

drug

solution

recently

obtained

Id. at 172.

Rochin’s

that

the

the

method

“shocks

the

In no uncertain terms,

the Court in Rochin opined that reliability is not the sole
touchstone of the Fourth Amendment.

Id. at 173 (noting that

coerced confessions are inadmissible in criminal trials “even
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statements

established

as

contained

true”

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in

them

principally

may

because

be

independently

they

“offend

the

community’s sense of fair play and decency”).

Thus, it was the

tactics

of

of

the

police,

not

the

reliability

the

obtained

evidence, that led to the exclusion of the evidence in Rochin.
The three remaining cases concerning egregiousness cited by
the Lopez-Mendoza Court were BIA decisions, Matter of Toro, 17
I. & N. Dec. 340 (BIA 1980); Matter of Garcia, 17 I. & N. Dec.
319 (BIA 1980); and Matter of Ramira–Cordova, No. A21 095 659
(BIA Feb. 21, 1980) (unpublished).

In each of these cases, the

BIA decision did not focus on the reliability of the evidence.
Rather, the decision focused on whether the admission of the
contested evidence would be fundamentally fair.

See Matter of

Toro, 17 I. & N. Dec. at 343-44 (suggesting that a stop based on
Hispanic appearance alone would constitute an egregious Fourth
Amendment violation if the Border Patrol officers acted in bad
faith,

regardless

obtained);

Matter

of

the

probative

of

Garcia,

17

I.

value
&

N.

of

the

Dec.

evidence
at

320-21

(excluding statements obtained after agents repeatedly ignored
detainee’s request for counsel); Matter of Ramira–Cordova, No.
A21 095 659, slip op. at 3-4 (suppressing evidence obtained as a
result

of

a

nighttime

warrantless

entry

into

the

aliens’

residence).
The Lopez-Mendoza Court’s use of the cited authority only
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makes sense if fundamental unfairness is not tethered to the
probative value of the evidence obtained.

As noted by the court

in Orhorhaghe v. INS, “[w]ere the rule to the contrary, the
egregiousness

exception

would

have

little

meaning,

for

the

fruits of an illegal search or seizure ordinarily consist of
physical

evidence,

the

reliability

no

way

affected by the manner in which the evidence is obtained.”

38

F.3d 488, 501 (9th Cir. 1994).
that

the

three

circuits

to

of

which

is

in

Given this, it is no surprise

have

meaningfully

considered

the

unsettled “and/or” issue raised by Part V of the Lopez-Mendoza
opinion have opted to replace the opinion’s “and” with an “or”
to create a workable, disjunctive standard.

Oliva-Ramos, 694

F.3d at 278; Almeida-Amaral, 461 F.3d at 234; Gonzalez-Rivera,
22 F.3d at 1451; but see Lopez-Rodriguez v. Holder, 560 F.3d
1098, 1105 (9th Cir. 2009) (Bea, J., dissenting from the denial
of

rehearing

posit

a

en

banc)

conjunctive

exclusionary

rule,

(“Finally,
test.

the

To

the

Mendoza

trigger

egregious

dicta

seems

application

conduct

must

of

both

to
the
(1)

transgress notions of fundamental fairness and (2) undermine the
probative value of the evidence obtained.” (emphasis, footnote,
citation, and internal quotation marks omitted)).
In our case, Yanez does not challenge the probative value
of the evidence obtained as a result of the alleged wrongful
search, seizure, and questioning.
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Consequently, the challenged

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evidence
value

cannot

is

Rather,

Filed: 06/16/2015

be

excluded

undermined

the

by

on

the

challenged

Pg: 39 of 92

the

basis

activities

evidence

can

that

of

only

its

the

be

probative

ICE

agents.

excluded

if

the

actions of the agents amounted to a violation of the Fourth
Amendment

that

transgresses

notions

of

fundamental

fairness.

This begs the question: When does a violation of the Fourth
Amendment transgress notions of fundamental fairness?

We turn

to this question next.
2
A review of the case law demonstrates that there is no
consensus

on

egregious

such

fairness.

when

a

that

However,

violation
it

of

the

Fourth

transgresses

notions

different

approaches

two

Amendment
of

is

fundamental

to

assessing

egregiousness have emerged in the fact-specific case law.

The

first is the qualified immunity approach, which is applied in
the

Ninth

Circuit.

The

second

is

the

totality

of

the

circumstances approach, which is applied in the Second, Third,
and Eighth Circuits. 9
a
9

Other circuits have raised and disposed of claims of
egregiousness without setting out a detailed standard.
See,
e.g., Kandamar, 464 F.3d at 74 (refusing to find egregiousness);
United States v. Olivares-Rangel, 458 F.3d 1104, 1118 n.11 (10th
Cir. 2006) (citing the Lopez-Mendoza examples of egregiousness);
Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 (1st Cir. 2004)
(refusing to find egregiousness for voluntary statements made by
alien while not in custody).
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The Ninth Circuit’s qualified immunity approach is the most
alien-friendly test for egregiousness, linking the inquiry to a
qualified
Circuit

immunity

held

Amendment

analysis.

that

are

all

egregious,

exclusionary rule.
Amendment

“bad

In

Gonzalez-Rivera,

faith”

violations

warranting

the

occurs

when

the

application

22 F.3d at 1449 & n.5.

violation

of

the

Ninth
Fourth

of

the

A bad faith Fourth

“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.”

Id. at 1449 (emphasis omitted).

Applying that

standard in Gonzalez-Rivera, the court held that stopping an
individual
egregious

based

violation

officers

should

alien]

solely

another

violation

known

person’s
Fourth

that

on

constitutes

Amendment

their

his

race

an

because

“the

to

stop

[the

appearance

was

decision

Hispanic

Id. at 1450.

case,

where

a

the

solely

unconstitutional.”
In

of

have

based

on

the

officers

Ninth
entered

Circuit
a

home

found

an

without

egregious
trying

to

procure a warrant, without exigent circumstances, and without
consent,

because

“reasonable

officers

should

they were violating the Fourth Amendment.”

have

known

that

Lopez-Rodriguez v.

Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008).

In the court’s

view, “reasonable officers would not have thought it lawful to
push

open

the

door

to

petitioners’
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home

simply

because

[the

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petitioner] did not ‘tell them to leave or [that] she did not
want to talk to them.’”

Id.

Building on Lopez-Rodriguez, the Ninth Circuit in MartinezMedina

noted

that

whether

“a

reasonable

officer

should

have

known his conduct violated the Constitution depends in part on
whether the constitutional right was clearly established in the
particular context at issue.”

673 F.3d at 1034.

There, a

deputy sheriff was told by two Mexican nationals that they were
illegally present in the United States.

Id. at 1031.

The

deputy sheriff detained them solely by verbal instruction until
an immigration officer arrived.

Id. at 1031-32.

The aliens

admitted to the immigration officer that they were illegally
present in the United States.
court

found

no

egregious

Id. at 1032.
violation

of

The Martinez-Medina
the

aliens’

Fourth

Amendment rights because “a reasonable officer would not have
known he lacked probable cause to detain Petitioners.”
1035.
officers

Id. at

In the court’s view, “the deputy sheriff, unlike the
in

Lopez–Rodriguez,

unequivocal doctrinal backdrop.”

was
Id.

not

acting

against

an

In other words, because

the “law was unclear as to whether an alien’s admission to being
illegally present in the United States created probable cause to
seize the alien for violating federal immigration law,” there
was

no

rights.

egregious

violation

of

the

Id.
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aliens’

Fourth

Amendment

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b
On the other end of the spectrum is the totality of the
circumstances

approach.

In

Oliva-Ramos,

the

Third

Circuit

criticized the Ninth Circuit’s linking of the exclusionary rule
in removal cases to the qualified immunity standard.
Ramos, 694 F.3d at 277.

Oliva-

The court said that it could not adopt

an egregiousness standard that is “perched on the fulcrum of the
good faith of the police.”
the

Ninth

Circuit’s

test

Id.
would

The Third Circuit noted that
“permit

conduct

that

may

be

objectively reasonable based on directives of the [DHS], but
nevertheless result in routine invasions of the constitutionally
protected privacy rights of individuals.”

Id.

Finding such a

result untenable, the court in Oliva-Ramos indicated that the
egregiousness analysis “must, by its very nature, differ from an
inquiry into an officer’s good faith.”

Id. at 259 n.21.

In Oliva-Ramos, the alien alleged several Fourth Amendment
violations, including that the officers lacked proper consent
before entering his apartment at 4:30 a.m., arrested him without
probable cause or a warrant, and seized him without reasonable
suspicion.
to

Id. at 261-62.

supplement

the

record

The BIA denied the alien’s request
with

new,

previously

unavailable

evidence of widespread Fourth Amendment violations and egregious
conduct,
dicta.

concluding

that

Id. at 262-70.

Part

V

of

Lopez-Mendoza

was

only

On the ensuing petition for review, the
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Third

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Circuit

vacated

the

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BIA’s

decision

and

required

it

to

reopen the proceedings so that the alien could present evidence
of widespread and egregious conduct.

Id. at 274-82.

The court in Oliva-Ramos opined that “evidence will be the
result of an egregious violation within the meaning of LopezMendoza,

if

Amendment

the

record

violation

occurred.

Id.

at

evidence

that
278.

was
In

establishes”

that

fundamentally

setting

the

a

Fourth

unfair

contours

of

had
this

standard, the Oliva-Ramos court discerned “guiding principles”
from

the

Second

Circuit’s

decision

in

Almeida-Amaral.

Id.

First, “courts and agencies must adopt a flexible case-by-case
approach for evaluating egregiousness, based on a general set of
background principles which fulfill the two-part Lopez-Mendoza
test.”

Id. at 278-79.

Second, fact-finders who “evaluat[e] the

egregiousness of the violation should pay close attention to the
‘characteristics and severity of the offending conduct.’”
at 279 (citation and internal quotation marks omitted).

Id.

Quoting

the First Circuit’s decision in Kandamar and the Eight Circuit’s
decision

in

Puc-Ruiz,

the

Oliva-Ramos

court

explained

that

“‘evidence of any government misconduct by threats, coercion or
physical abuse’ might be important considerations in evaluating
egregiousness,”

id.

(quoting

Kandamar,

464

F.3d

at

71),

and

“evidence of ‘physical brutality’” and an “‘unreasonable show or
use of force’” also may be relevant, id. (quoting Puc-Ruiz, 629
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at

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778-79).

concluded

that

Pg: 44 of 92

Succinctly

“there

is

no

put,

the

Oliva-Ramos

one-size-fits-all

court

approach

to

determining whether a Fourth Amendment violation is egregious”
and that the Supreme Court in Lopez-Mendoza did not “suggest or
imply

that

warranted.”

any

strict

Id.

test-based

Rather,

the

approach

totality

of

is

appropriate

the

or

circumstances

should guide the analysis, and the court required the BIA to
consider on remand factors such as:
[W]hether
Oliva-Ramos
can
establish
intentional
violations of the Fourth Amendment, whether the
seizure itself was so gross or unreasonable in
addition to being without a plausible legal ground,
(e.g., when the initial illegal stop is particularly
lengthy, there is an unnecessary and menacing show or
use of force, etc.), whether improper seizures,
illegal entry of homes, or arrests occurred under
threats, coercion or physical abuse, the extent to
which the agents re[s]orted to unreasonable shows of
force, and finally, whether any seizures or arrests
were based on race or perceived ethnicity.
Id.

The court further explained that its list of factors was

merely “illustrative . . . and not intended as an exhaustive
list of factors that should always be considered, nor is any one
factor necessarily determinative of the outcome in every case.
Rather, the familiar totality of the circumstances must guide
the inquiry and determine its outcome.”

Id.

Because the court in Oliva-Ramos took “no position . . . on
the underlying question of whether the circumstances here are so
egregious . . . as to justify a suppression order,” id. at 282,

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did

not

Instead,

Filed: 06/16/2015

apply

the

court

remanded

the

marshal

evidence

totality
the

concerning

Amendment violations.

Pg: 45 of 92

of

the

case

circumstances

to

widespread

allow

and

the

test.

alien

egregious

to

Fourth

Id.

The Second Circuit’s case law is in line with that of the
Third Circuit.

In Almeida-Amaral, a border patrol agent stopped

a Brazilian national.

461 F.3d at 232.

The court found a

Fourth Amendment violation because the arresting agent had no
legitimate basis for stopping the alien.

Id. at 236.

However,

these facts were not sufficient to find an egregious violation
requiring
stop.

exclusion

Id.

“valid

of

the

evidence

obtained

following

the

The court concluded that stopping the alien without

reason

or

suspicion”

constituted

a

Fourth

Amendment

violation but was not egregious because it was not “particularly
lengthy” and there was no show of force.
court,

egregiousness

must

be

Id.

gauged

According to the
“based

on

characteristics and severity of the offending conduct.

the

Thus, if

an individual is subjected to a seizure for no reason at all,
that by itself may constitute an egregious violation, but only
if the seizure is sufficiently severe.”

Id. at 235.

Thus, like

the Third Circuit, the Second Circuit’s egregiousness approach
involved an assessment of the totality of the objective facts in
the record.
The

Second

Circuit

followed
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Oliva-Ramos

in

its

decision

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in Cotzojay.

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In that case, an alien from Guatemala, who was

seized by ICE agents at his home in Riverhead, New York at
approximately

4:00

a.m.,

asserted

that

his

Fourth

Amendment

rights, among others, had been violated and thus endeavored to
exclude the evidence obtained by ICE as a result of the seizure,
including a Form I-213, his passport, and his statements to the
agents.

725 F.3d at 174-77.

Of note, the agents did attempt to

obtain a warrant to enter the alien’s home, and they entered the
home without the alien’s consent or exigent circumstances.

Id.

at

the

174,

177.

challenged

The

evidence

IJ

and

the

BIA

refused

because

the

alien

did

to

not

suppress
claim

he

was

“physically threatened or harmed in the course of the nighttime,
warrantless raid.”

Id. at 179.

On appeal, the Second Circuit vacated and remanded the case
to the BIA.
never

found

Id. at 184.
a

violation

The court first observed that it had
sufficiently

egregious standard in a removal case.

severe

to

Id. at 180.

meet

the

The court

then moved to the uncontroversial proposition that the Fourth
Amendment applies to aliens and citizens alike.
The

court

noted

that,

in

the

absence

of

consent

Id. at 181.
or

exigent

circumstances, the Supreme Court has consistently held that an
entry into a home to conduct a search or make an arrest is
unreasonable under the Fourth Amendment unless done pursuant to
a warrant.

Id.

In the court’s view, “if a Fourth Amendment
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violation is measured by what is reasonable, then an egregious
violation must surely be something more than unreasonable.”

Id.

at

for

182.

In

fact,

the

court

observed

that

the

test

egregiousness is more demanding than the test for overcoming
Id. at 183 n.10. 10

qualified immunity.
the

Third

Circuit’s

list

of

The court agreed that

factors

may

be

useful

for

determining whether a Fourth Amendment violation is sufficiently
egregious
adding

to

that

require
no

application

“single

aspect

of

of

a

the

exclusionary

constitutional

rule,

violation

elevates its status from merely unreasonable to egregious.”
at 183.

Id.

The court observed that,

although an unlawful search does not become an
egregious search merely because it invades the privacy
of the home, . . . that government agents intrude into
one’s home (versus a workplace or vehicle, for
example) is an important factor in assessing the
egregiousness of a Fourth Amendment violation because
the home is where its protections should be at their
peak.
Id.

(alteration,

citation,

and

internal

quotation

marks

omitted).
Applying
the

the

Cotzojay

court

totality
held

of
that

the
“the

circumstances
deliberate,

standard,
nighttime,

warrantless entry into an individual’s home, without consent and

10

The Cotzojay court rejected the Ninth
immunity approach because the court found
broad in that it places “too much emphasis
faith of government agents.” 725 F.3d at 183
- 47 -

Circuit’s qualified
that approach too
on the good or bad
n.10.

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in

the

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absence

egregious

Fourth

of

exigent

Amendment

Pg: 48 of 92

circumstances,
violation

may

constitute

regardless

of

an

whether

government agents physically threaten or harm residents.”

Id.

According to the court, its egregious Fourth Amendment violation
holding

was

further

supported

by

other

objective

evidence,

namely, that the ICE agents “pounded” on the alien’s bedroom
door following the home entry, “corralled” the alien and “other
handcuffed residents in the living room,” searched the alien’s
“room for desirable identification documents, informed arrestees
that they could relieve themselves in a restaurant parking lot
while [the agents] ate breakfast, and, in total, detained [the
alien] for approximately eighteen hours.”

Id. at 183-84 n.12.

As a result, the court remanded the case for further proceedings
to give the government a meaningful opportunity to show that its
officers obtained consent to enter the home.

Id. at 183-84.

In Maldonado, the Second Circuit stressed the difficulty of
establishing a prima facie case of egregiousness.

In that case,

aliens from Ecuador were among persons gathered in a park in
Danbury, Connecticut, to seek work.
Danbury

Police

Department

(DPD)

and

conducting an operation in that area.

763 F.3d at 158.
the
Id.

ICE

were

The

jointly

The aliens entered

an unmarked vehicle operated by an undercover DPD officer (with
the expectation that they were destined to a work-site).
The

aliens

were

arrested,

and

their

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incriminating

Id.

statements

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about

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their

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alienage

were

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memorialized

on

Form

I-213s.

Id.

Before the IJ, the aliens moved to suppress the Form I-213s and
to terminate the removal proceedings based on Fourth Amendment
violations,

arguing

that

the

ICE

agents

seized

them

reasonable suspicion and on the basis of their race.

without
Id.

The

IJ concluded that the aliens did not make out a prima facie case
and denied the motion.

Id.

Following the BIA’s affirmance, the

aliens sought review in the Second Circuit.

Id.

In denying the petition for review, the Maldonado court
emphasized

that

a

removal

hearing

was

designed

to

provide

a

quick method of determining an alien’s eligibility to remain in
the

Id.

country.

at

159.

As

for

the

contours

of

the

egregiousness standard, the court observed that “‘egregious’ by
definition is very bad indeed.”

Id.

Thus, according to the

court, the egregiousness standard is “stringent” and “entails a
shock to the conscience.”

Id.; see also id. at 165 (“Something

egregious is by nature extreme, rare, and obvious.”).

Applying

the totality of the circumstances standard, the court found no
egregious Fourth Amendment violations.
holding,

the

court

noted

that

the

Id. at 160-63.

affidavit

in

In so

Cotzojay

was

deemed to satisfy the egregiousness standard “because it averred
facts

that

were

appalling

under

any

standard:

a

deliberate,

nighttime, warrantless entry into an individual’s home without
consent and in the absence of exigent circumstances.”
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Id. at

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160

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(citation

and

Pg: 50 of 92

internal

quotation

marks

omitted).

Contrasting the facts in Cotzojay to the facts before it, the
court pointed out that the aliens did not allege that they were
treated in a particularly severe manner and found nothing in
their

account

authorities,

suggesting
let

alone

that

they

“gathered

by

the

they

that

were
were

selected

by

the

Id. at 161.

authorities on the basis of race.”

Rather, the

court declared that the aliens “self-selected on the basis of
their willingness to seek and accept day labor.”

Id.

The Eighth Circuit’s case law is in line with that of the
Second

and

affirmed

a

Third

Circuits.

removal

order

In

issued

Puc-Ruiz,
by

the

the

BIA,

Eighth
which

Circuit

upheld

a

decision by the IJ, who refused to suppress evidence obtained
following the alien’s apprehension by a local police officer.
629 F.3d at 775-83.

There, the alien, a native and citizen of

Mexico, was arrested at a restaurant by local police, who were
responding to a tip that the restaurant was serving alcohol in
violation of a municipal ordinance.

Id. at 775.

The police

entered the restaurant without a warrant and asked the patrons
to produce identification.

Id.

After the alien presented his

valid Missouri driver’s license, he was arrested and transported
to

the

detained.
was

police
Id.

interviewed,

station,

where

he

was

fingerprinted

and

After he was taken into ICE custody, the alien
resulting

in

the

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preparation

of

a

Form

I-

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Id. at 775-76.

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Before the IJ, the alien moved to suppress

the evidence resulting from his arrest, including the Form I213,

on

the

Amendment.

basis

that

his

arrest

violated

the

Fourth

Id. at 776.

On review in the Eighth Circuit, the Puc-Ruiz court held
that the police conduct at issue did not rise to the level of an
egregious Fourth Amendment violation.

Id. at 778-79.

The court

acknowledged that egregious violations are not limited to those
of physical brutality and cited to the principle that the lack
of any valid basis whatsoever for a seizure sets the stage for
egregiousness,
needed.

Id.

but

more

than

that

single

factor

would

be

The court indicated that there was no evidence in

the record that the local police employed an unreasonable show
of force.

Id. at 779.

It emphasized that the alien did not

advance any argument that the decision to arrest him was based
on

race

or

appearance,

violation,

as

decisions.

has

Id.

been

such

as

recognized

to
in

trigger
other

an

egregious

circuit

court

The court considered that this was not a case

in which police officers invaded private property and detained
individuals with no articulable suspicion whatsoever.
In

Martinez

Carcamo,

the

Eighth

11

Circuit

Id. 11

rejected

the

The Puc-Ruiz court also rejected the alien’s due process
claim on the basis that the statements were voluntarily made.
629 F.3d at 779-80.

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aliens’ challenge to the IJ’s denial, and the BIA’s affirmance,
of their motion to suppress.
suppress

challenged

the

713 F.3d at 922-26.

warrantless

entry

into

The motion to
the

aliens’

trailer home “[b]efore approximately” 6:00 a.m. on the basis
that a warrantless entry into a home egregiously violates the
Fourth Amendment.

Id. at 918.

Before entering the home, the

ICE agents took away one man’s cell phone while he was trying to
make a call, and, after entering, pulled a blanket off another
man lying in his bed.

Id. at 918-19.

In upholding the denial

of the motion to suppress the passports the agents obtained as a
result of the warrantless entry, the court applied the totality
of circumstances approach outlined in Oliva-Ramos.

Id. at 923. 12

Under that standard, the court found that the agents’ entry into
the

home

“because

was

not

nothing

in

an

egregious

our

Fourth

previous

cases

amendment
indicates

violation
that

an

unreasonable search becomes an egregious search merely because
it invades the privacy of the home.”

Id.

The court further

found that the aliens’ allegations that they were targeted on
12

The Martinez Carcamo court noted that it previously had
rejected the Ninth Circuit’s qualified immunity approach in
Garcia-Torres v. Holder, 660 F.3d 333 (8th Cir. 2011). Martinez
Carcamo, 713 F.3d at 923. In Garcia-Torres, the Eighth Circuit
rejected the Ninth Circuit’s approach because “[s]uch a standard
would likely eviscerate Lopez–Mendoza insofar as the Fourth
Amendment prohibits only ‘unreasonable’ searches and seizures
and the Ninth Circuit’s standard applies whenever ‘a reasonable
officer should have known’ his conduct was illegal.”
GarciaTorres, 660 F.3d at 337 n.4.
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account of their race were speculative.

Id.

In Lopez-Fernandez v. Holder, the Eighth Circuit denied a
petition for review of a removal order issued by the BIA, which
upheld a decision by the IJ, who refused to suppress evidence
obtained following the aliens’ apprehension by ICE agents who
went

to

the

aliens’

home

following

relevant

agents received from a named informant.
(8th Cir. 2013).

information

the

735 F.3d 1043, 1045

Prior to the 7:00 a.m. entry, the agents did
Id. at 1044-45.

not attempt to procure a warrant.

Rather, they

“forced” their warrantless entry after one of the aliens opened
the front door.
Amendment
violated

claim,
the

Id. at 1044.
the

Fourth

court

In resolving the aliens’ Fourth

assumed

Amendment.

the

entry

at

1046.

Id.

into

the

Applying

home
the

totality of the circumstances test, the court held, citing PucRuiz, Garcia-Torres, and Martinez Carcamo, that the aliens had
not established that the assumed Fourth Amendment violation was
sufficiently
government’s
passports.

egregious
evidence,

to

justify

including

Id. at 1047-48.

facts particularly relevant.

Form

suppression
I-213s

and

of

the

the

aliens’

In so holding, the court found two
First, there was “no evidence of

egregious force in the manner of entry.”

Id. at 1048.

Second,

the search occurred in the “morning when the Petitioners were
already

awake,

in Cotzojay.

not

in

the

middle

Id.
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of

the

night”

as

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c
Our survey of the case law from the Ninth Circuit on the
one

hand

other,

and

the

informs

Second,

us

that

Third,

we

and

should

Eighth

align

Circuits

the

with

ourselves

on

the

Second, Third, and Eighth Circuits and apply a totality of the
circumstances test.
Any

analysis

should begin

into

with

the

the

appropriate

recognition

egregiousness

that

a

removal

standard

hearing

is

intended to “provide a streamlined determination of eligibility
to remain in this country, nothing more.”
U.S. at 1039.
removal

Lopez-Mendoza, 468

As the Supreme Court noted in Lopez-Mendoza, the

hearing

system

is

designed

to

“permit

the

quick

resolution of very large numbers of deportation actions, . . .
[and]

[t]he

prospect

of

even

occasional

invocation

of

the

exclusionary rule might significantly change and complicate the
character” of removal hearings.

Id. at 1048.

Considering the

views espoused by the Supreme Court, especially its admonishment
that we do not change and complicate the character of removal
proceedings,

it

is

evident

that

a

suppression

hearing

in

a

removal proceedings is, at most, supposed to be a very rare
occurrence.
invocation

Cf.
of

the

Maldonado,

763

exclusionary

F.3d

rule

should not be a “common-place tactic”).

at

in

167

removal

(noting

that

proceedings

Thus, to stay faithful

to the dictates of the Supreme Court, it follows that an alien’s
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proffer

Pg: 55 of 92

concerning

egregiousness

must

be

high,

otherwise a suppression hearing on the question of egregiousness
would be commonplace, and the very heart of the Lopez-Mendoza
decision

would

be

undermined.

Cf.

id.

at

159

(noting

that

“‘egregious’ by definition is very bad indeed”); Garcia-Torres,
660 F.3d at 336 (noting that an egregious violation must be more
than

a

“mere

garden-variety”

violation);

Almeida-Amaral,

461

F.3d at 235 (noting that, “if an individual is subjected to a
seizure for no reason at all, that by itself may constitute an
egregious violation, but only if the seizure is sufficiently
severe” (emphasis omitted)).
The Ninth Circuit’s approach requires a suppression hearing
any

time

an

alien

alleges

acted in bad faith.
low.

Bad

faith

that

the

law

enforcement

officers

This sets the evidentiary proffer bar too

allegations

often

are

difficult

to

resolve

without an evidentiary hearing because the outcome turns on the
subjective motivations of the law enforcement officers.

It is

easy to see how the bad faith standard can be manipulated by
clever lawyers and encourages aliens to file frivolous improper
motivation claims.

Thus, we see the Ninth Circuit’s standard as

stymieing, rather than promoting, the streamlined nature of the
removal hearing process as recognized by the Court in LopezMendoza.

Relatedly, the Ninth Circuit’s standard runs the risk

of routinely requiring the arresting law enforcement officer to
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appear

at

Filed: 06/16/2015

a

motivation,

suppression

which

the

Pg: 56 of 92

hearing

to

noted

in

Court

testify

concerning

Lopez-Mendoza

would

unacceptably burden the administration of the immigration laws.
468 U.S. at 1049.
The Ninth Circuit’s standard is inconsistent with LopezMendoza on another front.

The cases cited by the Lopez-Mendoza

Court

the

in

support

of

egregiousness

exception,

in

particular Rochin, turned on the conduct of the law enforcement
officers not on the knowledge or intent of the law enforcement
officers.

The Court in Rochin did not resolve the case on the

basis of what the law enforcement officers knew or intended, but
rather what they did--they forcibly arrested the defendant and
obtained inculpatory evidence without his consent by forcing a
tube down his throat to pump his stomach.

342 U.S. at 166.

Thus, the outcome of the egregiousness inquiry does not solely
turn on the knowledge or intent of law enforcement officers,
though
factors.

intent

may

be

one

among

other

relevant

See Oliva-Ramos, 694 F.3d at 279 (noting that intent

may be one among many other factors to be considered under the
totality

of

the

circumstances).

Yet,

the

Ninth

Circuit’s

standard permits the application of the exclusionary rule in a
removal proceeding any time law enforcement officers knowingly
or

intend

to

violate

the

severity of their conduct.

Fourth

Amendment

regardless

of

the

Eliminating the severity of the law
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enforcement officers’ conduct essentially guts the definition of
egregiousness
Mendoza.

envisioned

by

the

Court

in

Lopez-

Cf. Martinez Carcamo, 713 F.3d at 923 (“We decline to

allow the Fourth Amendment rights of citizens or aliens to turn
on a federal agent’s personal state of mind.”).
The
well.

Ninth

Circuit’s

approach

faces

another

obstacle

as

As noted by the court in Oliva-Ramos, the Ninth Circuit’s

approach allows law enforcement officers a free pass any time
they unconstitutionally act pursuant to an agency regulation.
694 F.3d at 277.

Such a standard makes little sense because

potentially

permits

it

“routine

invasions

of

the
id.,

constitutionally protected privacy rights of individuals,”

by allowing law enforcement officers to invade such interests
pursuant to an agency regulation that permits unconstitutional
conduct.
In

our

view,

the

sounder

egregiousness

approach

is

the

totality of the circumstances standard as applied in the Second,
Third, and Eighth Circuits.

This standard is a flexible case-

by-case standard, taking into account a variety of factors.
It

allows

relevant

the
to

court

the

unreasonableness
officers.
include:

Id.
(1)

to

examine

egregiousness
of

at

the
276,

whether

all

inquiry

conduct
278.

the

of

of

Factors
Fourth

- 57 -

the
and
the
a

facts
focuses
law

court

Amendment

it
on

Id.
deems
the

enforcement
may

consider

violation

was

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intentional;

(2)

addition

being

to

whether

the

illegal;

Pg: 58 of 92

violation

(3)

was

whether

unreasonable

there

were

in

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

characteristics

of

or

the

search

alien

warrant;

involved;

(8)

and

any

(9)

violation was based on racial considerations.

unique

whether

the

Maldonado, 763

F.3d at 159-60; Oliva-Ramos, 694 F.3d at 279; Puc-Ruiz, 629 F.3d
at 779; Kandamar, 464 F.3d at 71.
exhaustive,

as

determining
egregious.”
case

will

there

“no

a

whether

is

Fourth

This list is not meant to be

one-size-fits-all
Amendment

Oliva-Ramos, 694 F.3d at 279.
dictate

the

relevant

approach

violation

to
is

The facts of each

factors

for

consideration.

Importantly, the alien’s evidence, in its totality, must support
a basis to suppress the challenged evidence under a finding of
egregiousness,

even

at

the

prima

facie

case

stage.

Such

evidence cannot be based on intuition or speculation, especially
as

it

relates

officers.
vague

to

the

intent

of

law

enforcement

See Maldonado, 763 F.3d at 161 (noting the danger of

“improper

motivation”

allegations);

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Lopez-Gabriel

v.

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Holder,

Doc: 42

653

Filed: 06/16/2015

F.3d

683,

686

Pg: 59 of 92

(8th

Cir.

2011)

(no

suppression

hearing required where the alien stated only that he “feels” the
police stopped him because of his race, and he “believe[d]” the
police

treated

people”).

him

differently

than

they

would

“treat

white

Suppression hearings should be the exception, not the

rule in removal proceedings, so the alien’s evidentiary burden,
even at the prima facie case stage, is high.

Lopez-Mendoza, 468

U.S. at 1049-50.
E
With the appropriate standard set forth, we can proceed to
address the substance of Yanez’s Fourth Amendment claims. 13
1
Yanez raises three Fourth Amendment particularity claims.
First, she claims that the search warrant was invalid because it

13

Because Yanez abandoned before the BIA her claim that the
alleged constitutional violations she experienced were part of a
larger, widespread pattern of unconstitutional misconduct by ICE
agents, we decline to address the merits of her Fourth Amendment
widespread pattern claim. See Kporlor v. Holder, 597 F.3d 222,
226 (4th Cir. 2010) (“It is well established that an alien must
raise each argument to the BIA before we have jurisdiction to
consider it.” (internal quotation marks omitted)); Massis v.
Mukasey, 549 F.3d 631, 638-40 (4th Cir. 2008) (“[U]nder 8 U.S.C.
§ 1252(d)(1), an alien’s failure to dispute an issue on appeal
to the BIA constitutes a failure to exhaust administrative
remedies that bars judicial review.”); see also RodriguezBenitez v. Holder, 763 F.3d 404, 405 (5th Cir. 2014) (“The REAL
ID Act of 2005 grants this Court subject-matter jurisdiction
over constitutional claims and questions of law that were
exhausted before the BIA.” (footnote and internal quotation
marks omitted)).
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identified the Premises as a single-family home when it was, in
fact, a multi-unit dwelling.

Alternatively, she claims that,

once the agents entered the Premises, they should have realized
that the Premises was a multi-unit dwelling, and, at that point,
they

should

have

stopped

warrant was overbroad.

the

search

immediately

because

the

Finally, she claims the ICE agents were

required to list her as an item to be seized in the warrant.

We

reject these claims for the simple reason that they do not make
out a constitutional violation, let alone an egregious one. 14

14

We note that neither the IJ nor the BIA specifically
addressed Yanez’s particularity claims.
Ordinarily, such an
error would require a remand to the BIA for further proceedings
pursuant to SEC v. Chenery Corp., 318 U.S. 80 (1943).
Under
Chenery, generally we may only affirm on the grounds relied on
by the BIA and may not affirm on unstated alternate grounds.
Id. at 94-95. Chenery is based on the proposition that, unlike
lower courts, agencies exercise their discretion as the
repositories of a Congressionally-delegated power to make
policy; thus, just as an appellate court cannot take the place
of a jury in finding facts, it may not take the place of an
agency in advancing a rationale for agency action.
Id. at 88.
However, where, as here, we are dealing with a purely legal
conclusion, that is, whether Yanez has established a prima facie
case, a remand is not compelled.
See Hussain v. Gonzales, 477
F.3d 153, 158 (4th Cir. 2007) (no remand required where the
record was conclusive that the alien failed to establish a prima
facie case for adjustment of status); cf. N.C. Comm’n of Indian
Affairs v. U.S. Dep’t of Labor, 725 F.2d 238, 240 (4th Cir.
1984) (“We do not . . . perceive there to be a Chenery problem
in the instant case because the question of interpretation of a
federal statute is not a determination or judgment which an
administrative agency alone is authorized to make.” (citation
and internal quotation marks omitted)).
In this case, the
record is complete, Yanez’s arguments are fully briefed, and the
only question before us is purely a legal one. As in Hussain, a
remand to the BIA “would serve no useful purpose,” and the
(Continued)
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The
issue,

Filed: 06/16/2015

Fourth
but

Amendment

upon

affirmation,

provides

probable

and

Pg: 61 of 92

that

cause,

particularly

“no

Warrants

supported

describing

by

the

amend. IV.

Oath

place

searched, and the persons or things to be seized.”

shall

to

or
be

U.S. Const.

The requirement for particularity “ensures that the

search will be carefully tailored to its justifications, and
will not take on the character of the wide-ranging exploratory
searches

the

Framers

intended

to

Garrison, 480 U.S. 79, 84 (1987).

prohibit.”

Maryland

v.

The particularity requirement

is satisfied when an officer in possession of a search warrant
describing

a

ascertain
searched.
1988).

and

place

identify

to

be

the

searched

intended

can

reasonably

place

to

be

United States v. Owens, 848 F.2d 462, 463 (4th Cir.

Even if the description of the place to be searched is

mistaken,
officers

particular

there

is

executing

no

Fourth

Amendment

the

search

violation

reasonably

when

the

believe

that

the

warrant is sufficiently particular and that they are searching
the

correct

location.

Garrison,

480

U.S.

at

84-89.

An

erroneous description or a factual mistake in the warrant will
not

necessarily

search.

Owens,

invalidate
848

F.2d

the
at

warrant

463-64.

and
“The

the

subsequent

validity

of

the

warrant must be assessed on the basis of the information that

result on remand is a “foregone conclusion.”
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477 F.3d at 158.

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disclosed,

or

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had

a

duty

disclose, to the issuing Magistrate.”

to

discover

and

to

Garrison, 480 U.S. at 85.

“Those items of evidence that emerge after the warrant is issued
have

no

bearing

issued.”

on

whether

or

not

a

warrant

was

validly

Id.

We conclude that, under the circumstances, the ICE agents
conducted

a

preparation

reasonable
for

investigation

obtaining

the

of

search

the

Premises

warrant,

and

in

further

conclude that the description of the Premises in the warrant did
not

invalidate

it.

The

agents

placed

the

Premises

under

surveillance, and such surveillance revealed that the Premises
was

occupied

citizen.

by

Umana,

Based

on

an

their

illegal

alien

surveillance

and

of

El

the

Salvadorian

Premises,

the

agents reasonably believed that it was a single-family home, as
the

picture

of

the

single-story home.

Premises

in

the

record

depicts

a

small,

The Premises has just one mailbox, with the

numbers “402” on it, (J.A. 524), and the land records search did
not reflect that the Premises was a multi-unit dwelling.

The

investigation of the Premises and its description in the warrant
unquestionably
and Owens.

complied

with

the

dictates

of

Garrison

Cf. United States v. Clark, 638 F.3d 89, 96 (2d Cir.

2011) (“‘[I]f the [multi-unit] building in question from its
outward

appearance

structure

and

would

neither

be

the

taken
affiant

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to

be

nor

a

single-occupancy

other

investigating

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officers nor the executing officers knew or had reason to know
of

the

structure’s

actual

multiple-occupancy

character

until

execution of the warrant was under way, then the warrant is not
defective

for

building.’”

failure

(quoting

to
2

specify

Wayne

R.

a

subunit

LaFave,

within

Search

&

the

named

Seizure:

A

Treatise on the Fourth Amendment § 4.5(b), at 581-82 (4th ed.
2004))).
was

Accordingly, we reject Yanez’s claim that the warrant

invalid

because

it

identified

the

Premises

as

a

single-

family home.
Yanez also claims that, once the ICE agents entered the
Premises and approached the bedroom occupied by her and Umana,
the

agents

should

have

known

it

was

because the bedroom door was locked.

a

multi-unit

dwelling

Upon this realization,

Yanez claims, the agents immediately should have terminated the
search in order to secure a search warrant for Yanez’s “separate
dwelling.”

Petitioner’s Br. at 32.

The Supreme Court indicated in Garrison that “the validity
of the search of respondent’s apartment pursuant to a warrant .
. . depends on whether the officers’ failure to realize the
overbreadth of the warrant was objectively understandable and
reasonable.”

480 U.S. at 88.

“It is only after the police

begin to execute the warrant and set foot upon the described
premises that they will discover the factual mistake and must
reasonably limit their search accordingly.”
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Id. at 89 n.14.

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realized

must
this

determine
alleged

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whether

factual

the

mistake

ICE

agents

during

should

the

have

search

and

thus stopped the search at that time.
Yanez’s claim founders for the simple reason that the ICE
agents reasonably believed that the Premises was a single-family
home when they arrived at the locked bedroom door.

A locked

bedroom door in a home does not necessarily mean or imply that
the home is a multi-unit dwelling.

See United States v. Kyles,

40 F.3d 519, 523–24 (2d Cir. 1994) (permitting the search of a
locked

bedroom

objectively

inside

appear

to

a
be

single-family
a

separate

home

unit);

that

United

did

not

States

v.

Ayers, 924 F.2d 1468, 1480 (9th Cir. 1991) (“A search warrant
for the entire premises of a single family residence is valid,
notwithstanding the fact that is was issued based on information
regarding

the

alleged

illegal

occupants of a residence.”).

activities

of

one

of

several

Moreover, there is nothing special

or unusual about the bedroom door in this case that would have
put the agents on notice that it was an entrance to a separate
living unit.

Along a similar vein, Yanez mentions nothing about

the interior of the Premises that would have led the agents to
believe that it was a multi-unit dwelling.
In any event, even if the ICE agents were somehow mistaken,
and

we

do

not

suggest

or

imply

they

were,

we

must

make

allowances for “honest mistakes that are made by officers in the
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dangerous and difficult process of making arrests and executing
search warrants.”
in

which

the

Garrison, 480 U.S. at 87.

officers

clearly

were

Unlike Garrison,

confronted

with

two

apartments where they expected to find only one, nothing in this
case should have made it obvious to the agents that the warrant
was overbroad.
Yanez’s final claim concerning particularity is that the
search warrant is invalid because the affidavit did not list her
as an item to be seized.
that

the

identify

warrant
the

is

Premises

This claim is premised on her claim

invalid
as

a

because

the

multi-unit

affidavit
dwelling

did

and,

not
more

particularly, did not identify her separate dwelling unit as a
place to be searched.

Since we have rejected the premises on

which this final claim rests, we reject this claim as well.
2
Yanez also argues that the timing of the execution of the
search warrant--5:00 a.m. instead of between 6:00 a.m. to 10:00
p.m.--violated her Fourth Amendment rights.
contends

that

the

nighttime

violates

the

Fourth

execution

Amendment,

absent

of

Basically, Yanez
a

daytime

consent

or

warrant
exigent

circumstances, which are not presented here. 15

15

Understandably, because the record must be viewed in a
light most favorable to Yanez, the government does not suggest
that exigent circumstances or consent excused the alleged
(Continued)
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a
The

Fourth

Amendment

protects

individuals

from

“unreasonable searches and seizures,” guaranteeing their right
“to be secure in their persons, houses, papers, and effects.”
U.S. Const. amend. IV.

That Amendment was specifically crafted

to thwart the unbridled discretion of law enforcement officers.
Our

Founding

Fathers

intended

to

impede

“the

abuses

of

the

general warrants that had occurred in England and of the writs
of assistance used in the Colonies.”
451

U.S.

204,

220

(1981). 16

Steagald v. United States,

General

warrants

and

writs

of

assistance bestowed upon the executing officials a high degree
of deference and, crucially, “provided no judicial check” on a
judicial officer’s determination that an intrusion into a home
or dwelling house was justified.

Id.

The Founders imposed that

missing “judicial check” by adopting the Fourth Amendment, which
requires

neutral

and

detached

judicial

officers

to

assess

failure to timely execute the warrant.
16

A general warrant, utilized extensively in England before
the American Revolution, “specified only an offense . . . and
left to the discretion of the executing officials the decision
as to which persons should be arrested and which places should
be searched.” Steagald, 451 U.S. at 220. Similarly, a writ of
assistance, utilized extensively by the English in the Colonies,
“noted only the object of the search--any uncustomed goods--and
thus left customs officials completely free to search any place
where they believed such goods might be.” Id.

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whether probable cause has been shown for searches of persons,
houses, papers, or effects.
10, 13-14 (1948).

Johnson v. United States, 333 U.S.

If probable cause exists and is shown under

oath, then a judicial officer is entitled to issue a warrant,
authorizing the appropriate search.
Though the Fourth Amendment protects against unreasonable
searches

of

houses

and

jealousy.

persons,

houses,

residences

papers,

are

and

effects,

protected

dwelling

with

special

See Florida v. Jardines, 133 S. Ct. 1409, 1414 (2013)

(“But when it comes to the Fourth Amendment, the home is first
among equals.”). 17
castle

of

The common law viewed “a man’s house as his

defense

and

asylum,”

protection from intrusion.
931

(1995)

(internal

warranting

even

greater

Wilson v. Arkansas, 514 U.S. 927,

quotation

marks

omitted).

Because

an

individual’s expectation of privacy is “at [its] apex in one’s
home,” United States v. Gray, 491 F.3d 138, 146 (4th Cir. 2007),
warrantless

searches

of

homes

are

unconstitutional

under

the

Fourth Amendment, Brigham City, Utah v. Stuart, 547 U.S. 398,
403 (2006), absent some type of justification.

17

In exceptional

The Fourth Amendment’s guarantee against unreasonable
searches of “houses” extends to owners, boarders, and tenants of
homes, apartments, and other dwelling places. United States v.
Gray, 491 F.3d 138, 144 (4th Cir. 2007).
The Fourth Amendment
also protects travelers in hotels and motels, relatives who
regularly stay in a residence, and overnight guests. Id.

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conducting

law

enforcement

warrantless

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officers

searches

of

may
homes,

Id. at 403-04. 18

“exigent circumstances.”

be

justified

in

particularly

in

A warrantless search

of a home pursuant to an occupant’s voluntary consent is also
reasonable

under

Bustamonte,

412

justification,

the
U.S.

however,

Fourth
218,

Amendment.
219-23

warrantless

Schneckloth

(1973).
searches

Absent
of

v.
such

dwellings

by

government agents are “the chief evil against which the wording
of the Fourth Amendment is directed.”
U.S.

740,

omitted).
shields

748

(1984)

(citation

and

Welsh v. Wisconsin, 466
internal

quotation

marks

The law is thus settled that the Fourth Amendment
individuals

from

warrantless

intrusions

into

their

homes, even where probable cause otherwise exists to justify
searches.

Jones v. United States, 357 U.S. 493, 497-98 (1958).

Our nation’s historic aversion to the warrantless searches
of dwelling houses and residences reaches its zenith when such
searches are conducted at night.
18

Nighttime searches have long

Exigent circumstances justifying a warrantless search of
a home may include, by way of example:
fighting a fire and
investigating its cause; preventing the imminent destruction of
evidence; engaging in “hot pursuit” of a fleeing felon;
rendering emergency assistance to an injured occupant; or
preventing an occupant from imminent injury.
Stuart, 547 U.S.
at 403-04; see also Mincey v. Arizona, 437 U.S. 385, 393-94
(1978) (“[W]arrants are generally required to search a person’s
home or his person unless the exigencies of the situation make
the needs of law enforcement so compelling that the warrantless
search is objectively reasonable under the Fourth Amendment.”
(internal quotation marks omitted)).
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been recognized as more intrusive than searches conducted during
the day.
(1971)

See Coolidge v. New Hampshire, 403 U.S. 443, 477
(characterizing

midnight

“extremely serious intrusion”).
deemed

it

privacy

“difficult
than

the

to

entry

dwelling

as

In fact, the Supreme Court has

imagine

nighttime

a

more

severe

intrusion

Jones, 357 U.S. at 498.

home.”

into

invasion

into

a

of

private

That proposition is valid

because, during the nighttime hours, searches of dwellings by
government agents tend to involve “rousing the residents out of
their beds, and forcing them to stand by in indignity in their
night clothes,” all of which “smack[s] of a police state lacking
in

the

United

respect

for”

individual

States,

416

U.S.

dissenting)

(citation

and

privacy

430,

462

internal

rights.

(1974)

quotation

Gooding

(Marshall,
marks

v.
J.,

omitted).

Thus, warrantless nighttime searches of homes were characterized
by the second Justice Harlan as creating “a grave constitutional
question.”

Jones, 357 U.S. at 499; see also Monroe v. Pape, 365

U.S. 167, 210 (1961) (Frankfurter, J., dissenting) (describing
warrantless nighttime searches of dwellings as “evil in its most
obnoxious form”).
Rule
implements

41

of
the

the

Federal

Fourth

warrantless searches.

Rules

Amendment’s

of

Criminal
protections

Jones, 357 U.S. at 498.

Procedure
against

It provides that

a judicial officer must issue a search warrant if a federal law
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enforcement officer or an attorney for the government presents
an

affidavit

or

other

search a property.

information

showing

probable

Fed. R. Crim. Proc. 41(b)(1).

cause

to

Additionally,

Rule 41 sets forth procedures controlling the time at which a
warrant may be executed, reflecting that “increasingly severe
standards

of

probable

cause

are

increasingly intrusive searches.”

necessary

to

justify

Gooding, 416 U.S. at 464.

Once issued, a warrant can normally be executed solely “in the
daytime,” between 6:00 a.m. and 10:00 p.m., “unless the judge
for good cause expressly authorizes execution” during the night.
Fed. R. Crim. P. 41(e)(2)(A)(ii). 19

Good cause for a nighttime

warrant might exist, for example, where necessary to prevent the
destruction of evidence.

See United States v. Searp, 586 F.2d

1117, 1121 (6th Cir. 1978) (“The Rule recognizes that there are
times

when

a

night

search

is

necessary;

19

if,

for

instance,

The relevant inquiry in determining when a search warrant
was executed is the time at which the search began, not when it
ended.
See, e.g., United States v. Keene, 915 F.2d 1164, 1167
(8th Cir. 1990).
Furthermore, it is generally recognized that
law enforcement officers who properly execute a daytime warrant,
between the hours of 6:00 a.m. and 10:00 p.m., may extend their
search into the nighttime hours.
See, e.g., United States v.
Squillacote, 221 F.3d 542, 556 (4th Cir. 2000) (“Because the
search of the Appellants’ home was commenced in the daytime, as
required by the warrant, the FBI agents reasonably could have
believed (if their actions after 10:00 p.m. could be considered
a search) that it was proper to continue the search into the
night.”); United States v. Burgard, 551 F.2d 190, 193 (8th Cir.
1977) (“Searches which began during daytime and continued into
the night have been held not to violate [Rule 41].”).

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execution would be impossible in the daytime or the property
sought is likely to be destroyed or removed before daylight.”).
Because of the separate, heightened burden of proof required for
issuance

of

warrant
search.

a

nighttime

ordinarily

warrant,
does

the

not

existence
justify

of

a

a

daytime

nighttime

O’Rourke v. City of Norman, 875 F.2d 1465, 1474 (10th

Cir. 1989).
b
That a nighttime search would be unconstitutional absent
consent or exigent circumstances if it was conducted under color
of a daytime warrant is not a novel concept.
Tenth Circuits have reached that very conclusion.

The Third and
See O’Rourke,

875 F.2d at 1474-75 (determining that nighttime search violated
Fourth Amendment despite daytime warrant); United States ex rel.
Boyance

v.

Myers,

398

F.2d

896,

899

(3d

Cir.

1968)

(same); United States v. Merritt, 293 F.2d 742, 746 (3d Cir.
1961) (same).

In

O’Rourke,

the

officers

obtained

a

daytime

bench warrant to arrest a third party for contempt of court.
875

F.2d

at

1467.

The

officers,

however,

entered

the

plaintiff’s residence during the nighttime hours and conducted a
search, contravening the explicit terms of the warrant.

Id.

In Boyance, two officers received reports that the petitioner
was

suspected

Thereafter,

at

of

committing

1:00

a.m.,

a

the

burglary.
officers

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398
sought

F.2d
a

at

897.

warrant

to

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search the petitioner’s residence.

Id.

The judge issued the

warrant, which indicated on its face that the officers were only
to “search in the daytime.”
terms

of

the

warrant,

residence

at

2:30

Id.

The officers disregarded the

however,

a.m.

and

Id.

entered

Similarly,

the
in

petitioner’s
Merritt,

the

officers, after suspecting that the defendant was involved in
drug

activity,

obtained

a

warrant

explicitly

limited

to

the

daytime hours but executed it at the defendant’s apartment in
the nighttime.
court

ruled

293 F.2d at 743.

that

the

In each of these cases, the

nighttime

searches

violated

the

Fourth

Amendment.
In

reaching

their

searches

violated

the

Circuits

focused

on

determinations

Fourth

the

Amendment,

scope

of

that
the

authority

explicit terms of the search warrants.

the
Third

nighttime
and

conveyed

Tenth

by

the

See, e.g., id. at 744

(determining that search warrant’s specific limitation “in the
daytime” was conclusive).

Because each warrant authorized a

daytime search only, the warrant only could be executed during
daytime
determine

hours.

As

otherwise

magistrate’s

the

courts

would

determination

of

“completely
of

appeals

emphasized,

eviscerate

reasonableness,”

the

to

issuing

O’Rourke,

875

F.2d at 1474, and would “nullify the requirement of a prior
impartial

determination

reasonable,”

that

a

particular

Boyance, 398 F.2d at 898-99.
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search

will

be

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c
Beyond the Third and Tenth Circuits, it is notable that the
Attorney General has taken the position that a daytime warrant
does not convey authority to conduct a nighttime search.
357 U.S. at 496.
district

court

Jones,

In Jones, the prosecutors conceded in the

that,

“by

the

time

petitioner’s

house

was

searched [by law enforcement officers in the nighttime,] the
daytime search warrant had expired.”
Attorney

General

disclaimed

to

the

Id.
Supreme

As a result, the
Court

that

the

officers had sought to execute the daytime warrant when they
commenced their nighttime search.

He contended, however, that

the search was nonetheless lawful because there was probable
cause to search the home.

Id.

Both the Fifth Circuit and the

Supreme Court accepted the Attorney General’s concession that
the nighttime search under color of a daytime warrant violated
the Fourth Amendment, and, thus, assessed whether the search of
a home without a warrant but with probable cause that contraband
would be found there violated the Fourth Amendment.

See id.

(recognizing that officers’ “daytime search warrant had expired”
when it was executed in nighttime); Jones v. United States, 245
F.2d 32, 34 (5th Cir. 1957) (“[T]he[] [officers] did not execute
the day[time] search warrant.”).

The Court concluded that such

a search was not compatible with the Fourth Amendment, reasoning
that,

if

“federal

officers

[were]
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free

to

search

without

a

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warrant

merely

upon

articles

were

within

Amendment

would

probable
a

become

Pg: 74 of 92

cause

home,
empty

affords largely nullified.”

the

to

believe

provisions

phrases,

and

that
of

the

the

certain
Fourth

protection

it

Jones, 357 U.S. at 498.
d

Following the persuasive decisions of the Third and Tenth
Circuits, as well as the Supreme Court’s decision in Jones where
the

Court

nighttime
violated

accepted
search
the

that

the

conducted

Fourth

government’s
pursuant

Amendment,

we

to
hold

concession
a

daytime

that

the

that

a

warrant
nighttime

execution of a daytime warrant violates the Fourth Amendment,
absent consent or exigent circumstances. 20
In so holding, we note that our court, in an unpublished

20

Although the nighttime execution of a daytime warrant is
a Fourth Amendment violation, absent justification, some courts
have excused the execution of a search warrant past its
expiration date.
These courts have inquired into whether the
probable cause that supported the warrant’s issuance continued
to exist at the time of the search. See, e.g., United States v.
Burgess, 576 F.3d 1078, 1096-97 (10th Cir. 2009) (deeming search
warrant valid forty-four days after expiration date because
“[p]robable
cause
to
search
was
unaffected”
by
delay).
Executing a warrant beyond its facial expiration date where
probable cause remains present, however, is materially distinct
from seeking to execute a daytime warrant during the nighttime
where there is no showing that a nighttime search is required.
In the former scenario, the magistrate unquestionably would
reissue the warrant for the search because probable cause is
still present, while in the latter scenario, there is no basis
in which to conclude that the magistrate would issue, let alone
reissue, the warrant to authorize a nighttime search that is not
required.
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has

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treated

a

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nighttime

search

conducted

under

the

aegis of a daytime warrant as a mere Rule 41 violation, rather
than as an unconstitutional search.

See United States v. Davis,

313 F. App’x 672, 674 (4th Cir. 2009).

In concluding that the

defendant’s suppression motion was properly denied, the Davis
court

relied

on

precedent

not

involving

an

unauthorized

nighttime search, but rather on precedent that states that a
Rule 41 violation will result in suppression only if the party
seeking

suppression

suffered

prejudice

intentionally violated the rule.
F.3d at 472 n.6).

or

the

government

See id. (citing Hurwitz, 459

Some of our sister circuits have employed

that same standard in refusing to suppress evidence obtained
during unauthorized nighttime searches.

See United States v.

Schoenheit, 856 F.2d 74, 76-77 (8th Cir. 1988); Searp, 586 F.2d
at 1124-25; United States v. Burke, 517 F.2d 377, 385-87 & n.14
(2d Cir. 1975).

Those courts have considered factors such as:

whether good cause could have been shown for a nighttime warrant
had one been requested; whether the executing officers believed
in good faith they had authority to conduct a nighttime search;
whether the search was executed a short time before or after
nighttime;

and

whether

the

search

was

in

because it was conducted in the nighttime.

fact

more

abrasive

See Schoenheit, 856

F.2d at 76-77; Searp, 586 F.2d at 1124-25; Burke, 517 F.2d at
385-87 & n.14.

For the reasons we espouse, we decline to follow
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Second,

nonprecedential

Sixth,
Davis

and

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Eighth

decision.

See

Circuits
Collins

v.

or

our

Pond

Creek

Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (“[W]e ordinarily
do

not

accord

decisions.”).
of

the

Third

precedential

value

to

our

unpublished

Instead, we adhere to the well-reasoned decisions
and

Tenth

Circuits,

and

the

Supreme

Court’s

decision in Jones. 21

21

In United States v. Rizzi, 434 F.3d 669 (4th Cir. 2006),
we held that 21 U.S.C. § 879 (“A search warrant relating to
offenses involving controlled substances may be served at any
time of the day or night if the judge or United States
magistrate issuing the warrant is satisfied that there is
probable cause to believe that grounds exist for the warrant and
for its service at such time.”) and not Rule 41(e)(2)(A)(ii)
(commanding executing officer to execute “the warrant during the
daytime, unless the judge for good cause expressly authorizes
execution at another time”) governs a search warrant issued in a
drug case.
Id. at 671-75.
We further held that § 879
authorizes a warrant in a drug case to be executed “day or night
so long as the warrant itself is supported by probable cause.”
Id.
at
674.
Of
note,
in
rejecting
the
defendant’s
constitutional challenge to § 879 based on the argument that
§ 879 could not provide a blanket authorization for a nighttime
search, we noted that the “Supreme Court . . . has never held
that the Fourth Amendment prohibits nighttime searches, despite
the disapproval voiced occasionally by a Justice in dissent.”
Id. at 675.
We further noted that “constitutionalizing a
standard for when warrants can be served would involve so many
variables that any rule would be difficult to articulate, much
less serve as a component protection of the Fourth Amendment.”
Id. We do not read our Rizzi decision as foreclosing the result
we reach here, namely, that a nighttime execution of a daytime
warrant, absent justification, violates the Fourth Amendment.
Rizzi involved a valid warrant that was validly executed at
night.
Our case involves a valid warrant that was invalidly
executed at night.
It is the invalid execution that rendered
the search here unconstitutional under the Fourth Amendment, not
the fact that a nighttime search took place.
To be sure, for
(Continued)
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e
Applying

the

foregoing

principles

to

Yanez’s

Fourth

Amendment timing claim reveals that the 5:00 a.m. search of the
Premises

violated

magistrate

judge

the

Fourth

specify

that

Amendment.
the

Not

search

only

warrant

did

was

the

to

be

executed in the daytime, he crossed out and explicitly rejected
the alternative option that would have allowed the search to
occur in the nighttime.

Cf. Youngbey v. March, 676 F.3d 1114,

1125 (D.C. Cir. 2012) (determining that nighttime search was
reasonable

under

warrant

daytime or nighttime).
agents

sought

magistrate
hours.

or

judge

authorizing

search

in

There is no indication that the ICE

were
to

explicitly

granted

execute

verbal

the

permission

warrant

during

by

the

nighttime

Cf. United States v. Katoa, 379 F.3d 1203, 1207-08 (10th

Cir. 2004) (finding nighttime search reasonable where judge who
issued

daytime

subsequent

phone

warrant
call

authorized
with

nighttime

officers).

Nor

search
is

during

there

an

indication that any new facts were developed, after the warrant
was issued, to support a nighttime search of the Premises.

And,

as noted earlier, there is no evidence concerning the presence

Fourth Amendment purposes, the nighttime search here rendered
the search itself warrantless because the magistrate judge’s
reasonableness finding was premised on a daytime search; by
contrast, the nighttime search in Rizzi did not involve a
warrantless search.
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of consent or exigent circumstances that would have justified
the nighttime execution of the daytime warrant.
Rather, the facts are that the ICE agents secured a daytime
warrant

and

exceeding
judge.
1969)

decided
the

to

execute

authority

it

during

granted

by

the

nighttime,

the

magistrate

See United States v. Vigo, 413 F.2d 691, 693 (5th Cir.
(reasoning

that

the

“validity

[of

a

daytime

warrant]

required it be served in the daytime”).

Because the magistrate

judge

search,

explicitly

daytime

rejected

restriction

agents.

a

nighttime

must

be

construed

the

warrant’s

against

the

See United States v. Kelley, 652 F.3d 915, 917 (8th

Cir. 2011) (“[W]hen police intend at the time they apply for a
warrant to execute the search at night, it is unreasonable under
the Fourth Amendment not to disclose that intent to the issuing
magistrate and to seek express authorization for the night-time
search.”).
At bottom, Yanez’s suppression motion implicates a simple
rule: a daytime warrant does not authorize a nighttime search.
The

government

enough”

to

implies

6:00

Notably,

however,

defending

British

a.m.
as

that
in

5:00

the

John

soldiers

eyes
Adams

charged

“[f]acts are stubborn things.”
(2001).

a.m.
of

essentially

is

the

Amendment.

observed
in

the

Fourth
in

“close

successfully

Boston

Massacre,

David McCullough, John Adams 52

And the stubbornest fact here is that 5:00 a.m. is not
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At 6:00 a.m., the warrant sanctioned the ICE agents

to enter into the Premises.
permit such an entry.

At 5:00 a.m., the warrant did not

Because the nighttime execution of the

daytime warrant violated Yanez’s Fourth Amendment rights, as it
was executed without consent or exigent circumstances, we must
turn to the question of whether the agents egregiously violated
Yanez’s Fourth Amendment rights.
f
As noted above, the question of egregiousness turns on an
evaluation of the totality of the circumstances.
circumstances

that

support

Yanez’s

There are two

egregiousness

claim.

The

first is that the Fourth Amendment violation occurred in her
home, where her privacy interests are strong.
Ct. at 1414.

Jardines, 133 S.

The second is that the entry occurred during the

night,

a

time

of

day

jealously

Court.

protected

by

the

Supreme

Coolidge, 403 U.S. at 477.

On the other side of the ledger, several factors weigh in
the

government’s

agents

favor.

threatened,

There

coerced,

or

is

no

evidence

physically

promised her anything for her cooperation.

that

abused

the

Yanez,

ICE
or

Unlike Umana and

Mendoza, she was never handcuffed and was allowed to remain at
the Premises following the search.
diminished

capacity

on

the

part

There is no evidence of
of

Yanez,

questioning of her was particularly lengthy.
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or

that

the

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nothing in the record to suggest that the agents were motivated
by racial considerations, and there is no evidence of improper
intent on the part of the agents. 22
While

the

totality

scales

at

this

point

tilt

in

the

government’s favor, two additional facts seal Yanez’s fate: (1)
the ICE agents prepared a valid search warrant; and (2) the
magistrate judge found the existence of probable cause to search
the Premises in the daytime.

As to the validity of the warrant,

Agent Coker prepared a detailed and thorough affidavit laying
out

the

facts

in

support

of

probable

cause

to

believe

that

illegal aliens (and evidence of the harboring of illegal aliens)
would be found in the Premises during a search.
challenge

to

the

accuracy

of

the

facts

set

Yanez makes no
forth

in

Agent

Coker’s affidavit, other than the description of the Premises as
a single-story, single-family home.
there

simply

valid.
(holding

is

no

doubt

that

Under such circumstances,
the

warrant

was

facially

Cf. Franks v. Delaware, 438 U.S. 154, 155-56 (1978)
“that,

preliminary

where

showing

the

that

defendant

a

false

makes

statement

a

substantial

knowingly

and

intentionally, or with reckless disregard for the truth, was
22

Indeed, considering the circuit split on whether the
nighttime execution of a daytime warrant, without consent or
exigent circumstances, is a Fourth Amendment violation, it
cannot credibly be argued that the ICE agents in this case
intentionally violated the Fourth Amendment rights of Yanez by
entering the Premises an hour before the warrant permitted.
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included by the affiant in the warrant affidavit, and if the
allegedly

false

statement

is

necessary

to

the

finding

of

probable cause, the Fourth Amendment requires that a hearing be
held

at

the

defendant’s

request”).

As

to

the

presence

of

probable cause, the facts set forth in the affidavit undeniably
support

the

finding.

magistrate

See

Illinois

v.

judge’s

Gates,

462

probable
U.S.

213,

cause

238

(1983)

(defining the test for probable cause as “whether, given all the
circumstances

.

.

.

,

there

is

a

fair

probability

that

contraband or evidence of a crime will be found in a particular
place”).

The

operation

that

agents

conducted

a

produced

evidence

painstaking

of

a

fair

surveillance

probability

that

illegal aliens (and evidence of the harboring of illegal aliens)
would be found during a search of the Premises.
validity

of

the

warrant,

Yanez

makes

no

Like the facial

challenge

to

the

magistrate judge’s probable cause finding.
The

presence

of

a

valid

search

warrant

supported

by

a

magistrate judge’s probable cause finding diminishes the degree
of

the

interests.

intrusion

on

a

resident’s

Fourth

Amendment

Cf. Michigan v. Summers, 452 U.S. 692, 701 (1981)

(noting that “[o]f prime importance in assessing the intrusion
[on the defendant’s privacy and liberty] is the fact that the
police had obtained a warrant to search [defendant’s] house for
contraband”).

This

is

so

because
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the

magistrate

judge

has

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“authorized

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a

substantial

Pg: 82 of 92

invasion

of

the

persons residing in the place to be searched.
In

Cotzojay,

the

alien’s

privacy

privacy”

of

the

Id.

interests

continued

to

remain at their zenith--the search took place at night in the
alien’s home and the ICE agents did not attempt to procure a
warrant.

Because

the

agents

never

attempted

to

procure

a

warrant, it is not surprising that the court there concluded
that

a

nighttime

warrantless

search

was

egregious

where

the

alien’s privacy interests were so compelling and the conduct of
the agents deplorable.

But cf. Martinez Carcamo, 713 F.3d at

923 (holding that Fourth Amendment violation was not egregious
where ICE agents did not attempt to obtain a search warrant and
entered

the

alien’s

home

before

approximately

6:00

a.m.).

However, in our case, Yanez’s privacy interests were lower than
those in Cotzojay and the conduct of the agents different.
agents

in

night.

our

case

Thus,

our

had

authorization

case

simply

is

to

search,
on

not

but
same

the

The

not

at

plane

as Cotzojay.
Put another way, if law enforcement officers do not attempt
to

secure

a

valid

warrant

supported

by

a

magistrate

judge’s

probable cause finding (as in Cotzojay), their conduct is more
egregious than law enforcement officers who take the time to
prepare a valid warrant and present it to a magistrate judge for
a

probable

cause

finding.

In
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the

latter

case,

the

law

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enforcement

officers’

conduct

sought

received

authorization

and

invasion--while
officers’

in

conduct

is

less

offensive--they

for

a

the

former

case,

borders

on

abhorrent,

privacy

the

law

which

have

interest

enforcement
renders

the

intrusion more severe and, hence, egregious. 23
Sensing that she suffered a “mere garden-variety” violation
of her Fourth Amendment rights, Garcia-Torres, 660 F.3d at 336,
Yanez claims her case for egregiousness is buttressed by the
excessive force used by the ICE agents in executing the warrant.
Unfortunately

for

Yanez,

the

force

used

by

the

agents

was

that

law

reasonable.
The

Supreme

enforcement

Court

officers,

has
when

repeatedly
executing

made
a

clear

search,

“may

take

reasonable action to secure the premises and to ensure their own
safety and the efficacy of the search.”

Los Angeles Cnty., Cal.

v. Rettele, 550 U.S. 609, 614 (2007).

It is for this reason

that the Supreme Court has underscored that officers may detain
the

occupants

of

the

premises

23

while

a

search

is

Interestingly, had the ICE agents in Cotzojay obtained a
daytime warrant and executed it at night, the Second Circuit
would not have assessed the claim for Fourth Amendment
egregiousness because such claims in the Second Circuit are
analyzed under a Rule 41 harmless error analysis.
See Burke,
517 F.2d at 385-87 & n.14 (applying harmless error analysis to
Rule 41 nighttime execution violation).
The upshot of this is
that a nighttime execution of a daytime warrant is not a
constitutional violation, let alone an egregious constitutional
violation, in the Second Circuit.
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Summers, 452 U.S. at 705.

Such detentions, the

Court has noted, are appropriate “because the character of the
additional intrusion caused by detention is slight and because
Muehler v.

the justifications for detention are substantial.”
Mena,

544

U.S.

93,

(2005). 24

98

“Inherent

in

Summers’

authorization to detain an occupant of the place to be searched
is

the

authority

detention.”

to

use

reasonable

force

to

effectuate

the

Id. 98–99.

Claims of excessive force are analyzed under the Fourth
Amendment’s

objective

reasonableness

standard,

judging

the

“reasonableness of a particular use of force . . . from the
perspective of a reasonable officer on the scene.”

Graham v.

Connor, 490 U.S. 386, 395–96 (1989) (internal quotation marks
omitted).

Generally, such claims require “a careful balancing

of the nature and quality of the intrusion on the individual’s
Fourth

Amendment

interests

against

Garner,

471

U.S.

1,

8

here

at

issue

countervailing

Id. at 396 (quoting Tennessee

governmental interests at stake.”
v.

the

(1985))

(internal

quotation

marks

omitted).
The

force

consisted

24

of

the

ICE

agents

The reasonableness of the seizure in Summers was
justified by three law enforcement objectives: (1) “preventing
flight in the event that incriminating evidence is found”; (2)
“minimizing the risk of harm to the officers”; and (3)
facilitating “the orderly completion of the search” with the
assistance of the detained occupants. 452 U.S. at 702–03.
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breaking down Yanez’s bedroom door, shouting “police” and “don’t
move,” pointing a gun at her, and leading her downstairs at
gunpoint

to

the

living

room

couch.

(J.A.

142).

Summers

stresses that the risk of harm to officers and occupants is
minimized

if

the

officers

command of the situation.”
in

a

home

that

the

routinely

452 U.S. at 703.

agents,

based

suspected housed illegal aliens.
involved,

including

Yanez,

exercise

on

“unquestioned

Yanez was living

extensive

surveillance,

For the safety of everyone

the

agents

were

authorized

to

exercise unquestioned command of the situation by breaking the
locked bedroom door down, shouting “police” and “don’t move”,
and leading Yanez downstairs at gunpoint.

(J.A. 142).

Such

actions in securing the home ensured there was no danger to the
agents, the occupants, or the public.
couch,

Yanez

was

subjected

to

no

Once she arrived on the

further

exercise

of

force

during her detention, and, as noted, she was never handcuffed
during the encounter.

Cf.

Mena, 544 U.S. at 98 (upholding the

use of handcuffs during a two- or three-hour detention during
execution of search warrant for weapons).

Moreover, weapons

were drawn no longer than necessary to secure the location in a
potentially volatile situation.

Cf. Maryland v. Buie, 494 U.S.

325, 335-36 (1990) (noting that a protective sweep may last “no
longer than is necessary to dispel the reasonable suspicion of
danger” and “no longer than it takes to complete the arrest and
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premises”).

The

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force

used

here

by

the

agents

unquestionably was measured and by no means excessive (in the
constitutional sense or otherwise).

As such, the amount of such

force does not help Yanez’s egregiousness claim based on the
timing of the search. 25
Our discussion of the totality of the circumstances leads
us to conclude that the Fourth Amendment violation here lacks
the

severity

egregiousness.

necessary

to

support

a

Almeida-Amaral, 461 F.3d at 235.

finding

of

We hold that,

although the nighttime execution of the daytime warrant violated

25

Because we hold that the force used by the ICE agents was
measured and not excessive in the constitutional sense, we
reject Yanez’s stand-alone egregious Fourth Amendment violation
claim based on the amount of force used by the agents.
Moreover, to the extent that Yanez challenges the scope and
duration of her seizure on Fourth Amendment egregiousness
grounds, we reject this argument on the basis that her seizure
was reasonable in its scope and duration.
Under Summers, law
enforcement officers are entitled to detain occupants of a
premises for the whole length of most warranted searches.
452
U.S. at 705 n.21 (acknowledging possible exceptions to the
Summers
rule
for
“special
circumstances”
and
“prolonged
detention[s],” implying that the general rule of routine
detention of residents of a house while it was being searched
for contraband pursuant to a warrant confers the power to detain
occupants for the length of such “routine” searches); see also
Mena, 544 U.S. at 98 (holding that the resident’s “detention for
the duration of the search was reasonable under Summers because
a warrant existed to search [the premises] and she was an
occupant of that address at the time of the search”). In light
of the two- or three-hour detention of an innocent bystander
deemed “plainly permissible” by the Supreme Court in Mena, we
cannot conclude that Yanez’s seizure here became egregiously
unconstitutional over time. 544 U.S. at 98.

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Yanez’s

Filed: 06/16/2015

Fourth

egregious

Amendment

under

the

Pg: 87 of 92

rights,

such

totality

of

violation
the

was

not

circumstances. 26

Accordingly, both the IJ and the BIA correctly resolved this
Fourth Amendment claim against Yanez.
3
Yanez also argues that her statements to the ICE agents
were involuntary and, thus, were used against her in violation
of

her

rights

Amendment.

under

the

Due

Process

Clause

of

the

Fifth

See Bustos–Torres v. INS, 898 F.2d 1053, 1057 (5th

Cir. 1990) (“Because deportation hearings must conform to due
process
cannot

standards,
be

used

however,

against

an

alien’s

in

a

him

involuntary

deportation

statements

hearing.”);

see

also Anim v. Mukasey, 535 F.3d 243, 256 (4th Cir. 2008) (“The
Federal

Rules

of

Evidence

do

not

apply

in

immigration

proceedings, and evidentiary determinations are limited only by
due process considerations.”).

To establish that her statements

were involuntary, Yanez “must show coercion, duress, or improper
action” by the agents that overbore her will.
26

Puc–Ruiz, 629

We note that, even under the Ninth Circuit’s more alienfriendly qualified immunity egregiousness standard, Yanez would
not prevail.
As noted in Footnote 22, the law is unsettled on
the question of whether the nighttime execution of a daytime
warrant, without consent or exigent circumstances, is a Fourth
Amendment violation.
Given the state of the law, it cannot be
said that the ICE agents in our case acted pursuant to the
“unequivocal doctrinal backdrop” necessary for a finding of
egregiousness
under
the
Ninth
Circuit’s
more
lenient
egregiousness standard. Martinez-Medina, 673 F.3d at 1035.
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F.3d at 779.
The allegations presented to the IJ failed to establish
a prima facie case of involuntariness.

Yanez did not submit

evidence of promises, prolonged questioning, interference with
her right to counsel, or other indicia of coercion or duress
that might suggest that her statements were involuntary, and she
was

never

handcuffed

during

the

entire

episode.

See

Lopez-

Gabriel, 653 F.3d at 687 (“Without more, prompt questioning of a
handcuffed

detainee

by

an

armed

and

uniformed

officer

without Miranda warnings, and questioning by ICE agents after an
arrest, are not sufficient to mandate a hearing or to justify
suppression in an immigration proceeding.”); id. (cases cited
therein).

Accordingly, like both the IJ and the BIA, we must

reject Yanez’s Fifth Amendment Due Process Clause claim.
In so rejecting, we note that Yanez’s heavy reliance on the
Second Circuit’s decision in Singh v. Mukasey, 553 F.3d 207 (2d
Cir.

2009),

suppressed

a

is

misplaced.

signed

In

statement

Singh,

made

the

during

Second
an

Circuit

interrogation

because the officers’ conduct “undermined the reliability of the
evidence

in

Id.

dispute.”

quotation marks omitted).

at

215

(citation

and

internal

The court found that the alien was

questioned for four hours in a border inspection station “where
armed, uniformed officers were circulating,” was repeatedly told
he

would

be

sent

to

jail,

broke
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down

and

cried

during

the

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interrogation

Filed: 06/16/2015

that

occurred

Pg: 89 of 92

in

the

middle

of

the

night,

was

awake for twenty-four hours, and did not read the statement he
signed that contained admissions he allegedly had made.

Id.

The court also noted that the interrogating officer persisted in
asking the alien the same question until he got the answer he
wanted.

Id. at 216.

Ultimately, the court found that the

statements at issue were “nuanced and susceptible to corruption”
and were therefore excludable.

Id.

According to the court, the

statements were not related to “simple, specific, and objective
facts,” such as “whether a person is a foreign citizen or has a
passport and valid visa.”

Id.

Because the statements were

unreliable, the court excluded them.
Although

the

court

in

Id. at 215.

Singh

discussed

the

egregious

violation exception in Lopez-Mendoza, id. at 215-16, the court
did

not

explicitly

suppressed

because

state
there

whether
was

an

the

signed

egregious

statement

Fourth

was

Amendment

violation or because there was an egregious Fifth Amendment Due
Process

Clause

violation.

In

excluding

the

statements,

the

court stated only that, “[e]ven assuming that the conduct here
was not ‘egregious,’ it nonetheless undermined the reliability
of the evidence in dispute.”

Id. at 215 (citation and internal

quotation marks omitted).

Thus, the court excluded the evidence

on

unspecified

the

basis

that

the

constitutional

violation

undermined the probative value of the challenged evidence.
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The Second Circuit’s decision in Singh hurts rather than
helps Yanez’s cause.

As noted earlier, Yanez does not challenge

the reliability of the evidence obtained as a result of the
alleged wrongful interrogation, which was the basis on which the
court in Singh suppressed the challenged statements.
the

circumstances

surrounding

the

questioning

Moreover,

of

the

alien

in Singh were decidedly more coercive than the questioning of
Yanez in this case.

Unlike Singh, Yanez was questioned at home

for a brief period of time, and she was not repeatedly told she
would be taken to jail.

Moreover, unlike the nuanced statements

in Singh, the questioning of Yanez was designed to obtain simple
and objective factual statements, which it did.
the

atmosphere

in

Singh,

where

the

Finally, unlike

investigating

officer

repeatedly asked the same question until he got the answer he
wanted, such was not the case here.
4
Finally, we turn to Yanez’s argument that the ICE agents
failed

to

follow

five

§ 287.8(a)(1)(iii)

regulations,

(regulating

in

8

of

use

particular,

C.F.R.

non-deadly

force

by

agents), 8 C.F.R. § 287.3(c) (mandating advice concerning right
to

counsel),

briefly

8

detain

§ 287.8(c)(2)(i)
C.F.R. §

C.F.R.

§

287.8(b)(2)

aliens
(concerning

(regarding

for

questioning),

power

to

arrest

authority
8

aliens),

to

C.F.R.
and

8

287.8(c)(2)(ii) (explaining requirement for obtaining
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warrant prior to arresting alien).

We have recognized that “an

agency’s failure to afford an individual procedural safeguards
required

under

invalidation

be

the

issue.

may

result

ultimate

in

the

administrative

United States v. Morgan, 193 F.3d 252, 266 (4th

unless

intended

for

prejudice to the alien.
We

regulations

However, an administrative determination will not

invalidated

regulation

own

of

determination.”
Cir. 1999).

its

reject

Yanez’s

there
the

is:

(1)

alien’s

a

violation

benefit

(3)

(2)

that

of

a

causes

Id.
reliance

on

the

five

regulations

at

First off, 8 C.F.R. § 287.12 prohibits any construction

of Part 287 of the Code of Federal Regulations “to create any
rights, substantive or procedural, enforceable at law by any
party in any matter, civil or criminal.”

8 C.F.R. § 287.12.

such, Yanez arguably suffered no prejudice.

As

Cf. Navarro-Chalan,

359 F.3d at 23 (“Finally, even if § 287.3 were applicable and
were violated, INS regulations state that § 287.3 and the other
regulations in its subpart “do not, are not intended to, shall
not be construed to, and may not be relied upon to create any
rights, substantive or procedural, enforceable at law by any
party in any matter, civil or criminal.” (citation and internal
quotation

marks

omitted)).

In

any

event,

even

assuming

a

violation of the regulations in Part 287 creates an avenue for
suppression, Yanez’s regulatory claims are without merit, either
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because

the

Filed: 06/16/2015

regulation

is

Pg: 92 of 92

inapplicable,

see

Oliva-Ramos,

694

F.3d at 286 (stating that formal proceedings do not begin until
a Notice to Appear is filed in immigration court, at which point
8 C.F.R. § 287.3(c) is triggered), or redundant to our prior
analyses,

see

8

C.F.R.

§

287.8(a)(1)

(prohibiting

excessive

force, which did not exist here), id. § 287.8(b)(2) (permitting
a

brief

suspicion

detention
that

a

for
person

questioning
is

an

if

illegal

there

is

reasonable

alien--such

suspicion

obviously was present and, in any event, Yanez’s detention was
permitted while the diligent search took place), id. § 287.8(c)
(circumscribing
arrested,

but

“arrests”
rather

to

certain

permissibly

contexts--Yanez

detained

while

the

was

not

diligent

search was conducted).

III
For the reasons stated herein, we deny Yanez’s petition for
review.
PETITION DENIED

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