Second Circuit Finds Arrest of Alien to Be Racially Motivated and an Egregious Violation of the Fourth Amendment

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In 2007, New Haven, CT became the first city in the United States to approve a municipal ID card for undocumented residents. Officials at the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE) were aware of the proposed program and sent internal emails expressing concerns over the plan.

Approximately 36 hours after New Haven’s Board of Aldermen approved the program, federal agents conducted an early-morning raid in the city’s largely Hispanic neighborhood, Fair Haven. Agents arrived at an apartment building in search of a target. Without consent, Agents entered 2 of the 3 apartments in the apartment building. The agents knocked on the door of Dora Riofrio’s apartment, which was answered by her minor child. They pushed the child to the side and proceeded upstairs to arrest her husband, Antonio Barroso. The agents knocked on the apartment door of Carlos Aucapina, which was answered by his mother-in-law. They held up a picture of their target, and when she stated she did not recognize him, they pushed past her and entered the apartment. One agent held up a picture of the target individual next to Aucapina’s face and stated to another agent, “[t]hey all look the same. Just arrest him.”

Christian Rodriguez was also arrested during these raids. Rodriguez worked in construction for Barroso. After Barroso was arrested, Rodriguez received a call asking him to return Barroso’s car, which Barroso allowed Rodriguez to use overnight, because there were “police officers” and he needed to retrieve documents from the car. Rodriguez arrived at Barroso’s residence around 30 minutes later.

Rodriguez pulled into the driveway and noticed two ICE agents. Rodriguez parked and the agents approached him. Rodriguez is not proficient in English. The officers mostly spoke to Rodriguez in English, though one office spoke minimal Spanish to restate words. Rodriguez spoke to the officers in Spanish. The agents asked Rodriguez for identification, and Rodriguez told the officers he did not have it because he rushed to the house after getting the phone call.

The agents handcuffed, arrested, and charged Rodriguez with removability under 8 U.S.C. § 1182(a)(6)(A)(i) for being an alien present in the United States without being admitted or paroled. Following Rodriguez’s arrest, the immigration officers prepared a Form I-213, Record of Deportable/Inadmissible Alien. This is the official record immigration officials prepare when processing a person suspected of being in the United States without lawful permission. The former stated that Rodriguez was encountered by immigration and law enforcement agents “at his residence” and that “[c]onsent to enter was given by an individual identified as Isadora Riofrio,” and that Rodriguez made admissions concerning his alienage.

In removal proceedings, Rodriguez filed a motion to suppress all evidence obtained from his arrest, including the Form I-213. He argued that the immigration agents who arrested him egregiously violated his fundamental constitutional rights because he was seized, arrested, and detained based solely on race. The immigration judge denied Rodriguez’s motion to suppress and terminate his removal proceedings. The judge also found that the officers had sufficient reason to believe Rodriguez was an illegal alien because he arrived at an ongoing operation driving another individual’s vehicle, did not had identification, and could not speak English.

Thereafter, the case twice proceeded to BIA on appeal and back to the immigration judge on remand. On appeal for the first time, BIA found that the Form I-213 was unreliable and could not establish alienage. BIA remanded to the immigration judge to clarify through further fact-finding what occurred during Rodriguez’s arrest, to identify and assess the information that supports the finding of alienage, and to decide whether that information can and should be suppressed pursuant to the exclusionary rule.

On remand, DHS withdrew the Form I-213 as evidence and instead presented an Ecuadorian birth certificate and criminal history print out as evidence of alienage. Rodriguez contended that this evidence was “fruit of the poisonous tree” and should be excluded. The immigration judge found the birth certificate was not “tainted by unlawful or egregious actions by ICE” and that Rodriguez had not made a prima facie case of egregiousness.

On appeal the second time, BIA again remanded to the immigration judge for fact-finding, instructing the judge to find whether the new evidence submitted by DHS was independent source evidence or if it could be considered fruit of the poisonous tree. BIA also instructed the judge to clarify the findings about the circumstances regarding the arrest because the judge failed to comply with its previously issued directive.

Before the immigration judge again, the judge concluded that the birth certificate could be considered fruit of the poisonous tree. The judge then examined the circumstances surrounding Rodriguez’s arrest. Assuming arguendo that Rodriguez was arrested without sufficient cause and that his seizure violated the Fourth Amendment,the judge still concluded that Rodriguez failed to establish that evidence of his alienage was obtained through an egregious and fundamentally unfair violation of the Fourth Amendment.

On appeal a third time, BIA affirmed the immigration judge’s decision. BIA found that the evidence obtained by the officers was not sufficiently egregious to apply the exclusionary rule.

Over a year later, Rodriguez filed an untimely motion with BIA to reopen and administratively close his case or, in the alternative, reopen and remand his case for consideration of either administrative closure or continuance. Rodriguez argued that a U-visa petition he submitted to the U.S. Citizenship and Immigration Service (USCIS) constituted new evidence warranting BIA’s exercise of sua sponte authority to reopen and administratively close or continue proceedings. BIA denied Rodriguez’s motion.

Rodriguez filed two petitions with the U.S. Court of Appeals for the Second Circuit. The first petition concerns whether Rodriguez made a prima facie case of an egregious violation of his Fourth Amendment rights, and the second concerns the BIA’s denial of an untimely motion for sua sponte reopening. The court of appeals denied the second petition. We focus on the first petition below.

As noted by the court of appeals, “[s]uppression of evidence is warranted in removal proceedings if the record establishes an egregious constitutional violation or a violation that undermines the reliability of the evidence in dispute.” In such cases, the respondent seeking to suppress evidence in a removal proceeding initially bears the burden of proof to exclude the evidence in question, and once this burden is met, the burden of proof shifts to the government to show by the evidence in question should be admitted.

To demonstrate the egregiousness of his arrest, Rodriguez submitted evidence showing that he was arrested during a widespread raid on a Hispanic neighborhood that occurred 36 hours after the city passed an immigrant-friendly program that ICE officials knew of and opposed. Rodriguez also presented evidence that federal officers entered apartments without consent or a warrant at the location where Rodriguez was arrested, and made derogatory and racially discriminatory remarks about the residents there. Read in the light most favorable to Rodriguez, the court found that this evidence showed a racial animus in the planning and execution of the raid, and thus, supports the inference that Rodriguez’s arrest was race-based.

The government’s argument that the arrests of others during this raid could not be used to support Rodriguez’s claim that his arrest was egregious did not move the court. The court stated that the arrests occurred during the same raid, at the same building, and in close temporal proximity. Moreover, the court found the circumstances in which Rodriguez was arrested more directly support the inference he was arrested based on his appearance. In addition, Form I-213 further supports the inference that the arrest was race-based.

The court also noted that the facts initially relied on by the immigration judge “clearly” did not support a finding of probable cause for Rodriguez’s arrest. The court specially noted that while Rodriguez is not proficient in English, this “same characteristic applies to a sizable portion of individuals lawfully present in this country.”

As such, the court found that the arrest was racially motivated and Rodriguez made a prima facie case of an egregious violation of his constitutional rights. The court remanded the case to BIA for further proceedings.

Read the full case: Rodriguez v. Barr

This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update