Argued: May 1, 2018
Appeal
from the Board of Immigration Appeals. No. A088-190-226
Petitioner
Christian Rodriguez ("Rodriguez") brings two
petitions for review. The lead petition, No. 15-3728, seeks
review of a decision of the Board of Immigration Appeals
("BIA") denying Rodriguez's motion to suppress
evidence of his alleged alienage based on an egregious
violation of his constitutional rights. The second petition,
No. 17-273, concerns the BIA's denial of Rodriguez's
request for sua sponte reopening of his completed
removal proceedings pending the outcome of a U-visa
application. We DENY Petition No. 17-273
because Rodriguez's U-visa application has been denied.
However, we GRANT Petition No. 15-3728
because we find that Rodriguez made a prima facie
showing of an egregious violation of his Fourth Amendment
rights, and REMAND the case to the BIA for
additional proceedings.
Joseph
Meyers, Thomas Scott-Railton, Law Student Interns (Muneer I.
Ahmad, Supervising Attorney, Adán Martínez,
Richard Zacharias, Melissa Z. Marichal, Law Student Interns,
on the brief), Jerome N. Frank Legal Services Org., Yale Law
School, New Haven, CT, for Petitioner.
M.
Jocelyn Lopez Wright, Senior Litigation Counsel (Melissa
Neiman-Kelting, Assistant Director, Office of Immigration
Litigation, Chad A. Readler, Acting Assistant Attorney
General, Civil Division, on the brief), Office of Immigration
Litigation, Civil Division, U.S. Department of Justice,
Washington, D.C., for Respondent.
Before: Lynch and Droney, Circuit Judges, and Sessions,
District Judge.[*]
Sessions, District Judge.
Petitioner
Christian Rodriguez ("Rodriguez") brings two
petitions for review. The lead petition, No. 15-3728, seeks
review of the Board of Immigration Appeals'
("BIA") denial of Rodriguez's motion to
suppress evidence of his alleged alienage. His second
petition, No. 17-273, concerns the BIA's denial of
Rodriguez's request for sua sponte reopening of
his completed removal proceeding. We grant Petition No.
15-3728 and deny Petition No. 17-273.
FACTUAL
BACKGROUND
I.
Facts Relevant to Petition No. 15-3728
In
2007, the City of New Haven, Connecticut became the first
city in the United States to approve a municipal ID card that
would be available to undocumented residents.[1] Then-mayor of New
Haven, John DeStefano Jr., had aired the idea of a municipal
ID card in 2005, and the plan had gained steam by early 2007.
In May 2007, DeStefano testified before a committee of the
New Haven Board of Aldermen in support of a proposal, calling
it an "issue of justice and an issue of human rights,
just as was the case when generations ago the community of
New Haven engaged the captives of the Amistad.[2] If New Haven
won't stand up, who will stand up[?]" App'x 326.
Officials
at the Department of Homeland Security ("DHS") and
Immigration and Customs Enforcement ("ICE") were
aware of the proposed ID card program. In fact, emails
between ICE and DHS officials show that ICE had
"concerns" about the plan. App'x 426. Three
days after the New Haven Register published
DeStefano's comments, an email between ICE officials
described the ID program as follows: "Yale is loading up
the Amistad with illegal aliens and sailing them to freedom,
while John Marley [an ICE attorney in Hartford, Connecticut]
openly weeps." Id.
The
city's Board of Aldermen approved the municipal ID
program on June 4, 2007. Approximately 36 hours later,
federal agents conducted an early-morning raid in the
city's largely Hispanic neighborhood, Fair Haven. Federal
agents dressed in bulletproof vests entered multiple private
homes, including a residence at 546 Woodward Avenue. Agents
arrived at 546 Woodward Avenue in search of Jorge Barroso, an
individual on their target list. 546 Woodward Avenue contains
three apartments, and federal agents entered at least two of
them (Units A and C). Agents knocked on the front door of
Unit C, which was answered by the fourteen- year-old son of
the apartment's main resident, Dora Riofrio.
Riofrio's son was greeted by approximately eight agents
who pushed past him into the apartment. Id. The
agents then asked Riofrio the whereabouts of Jorge Barroso,
her brother- in-law. Id. She told the agents that he
was in Ecuador. Id. Nevertheless, the agents
proceeded to go upstairs in the apartment and arrest her
husband, Antonio Barroso. Id. One agent pushed
Riofrio's minor son onto a couch. Id.
The
agents also entered Unit A and arrested Carlos Aucapina.
Aucapina's mother-in-law answered a knock at the front
door of Unit A. Agents held up a picture of a man she did not
recognize and asked if he lived in the apartment.
Id. When she answered no, the agents pushed past her
and entered the apartment. Id. Immediately before
Aucapina's arrest, an immigration officer held up a
picture of a target individual (who was not present) to
Aucapina's face and stated to another agent, "[t]hey
all look the same. Just arrest him." App'x 391.
Aucapina's mother- in-law subsequently submitted an
affidavit stating that immigration agents held up a photo of
the target next to Aucapina and said, "[i]t could be
him," even though the two men did not resemble each
other "at all." App'x 389.
The
municipal ID program, and the arrests that followed its
passing, were widely covered by the press and discussed by
local politicians, government leaders, and the community.
Connecticut's then-Senators, Joseph Lieberman and
Christopher Dodd, as well as the Congresswoman representing
New Haven, Rosa De Lauro, wrote to the Secretary of Homeland
Security asking whether the raids were planned in response to
the municipal ID program and requesting an explanation of the
timing of the raid. The mayor of New Haven has called the
arrests "an act of intimidation" and
"retaliation" for the introduction of the ID cards.
App'x 328, 331. The police chief of New Haven publicly
stated that he had not received notification prior to the
raid, in violation of ICE policy. DHS denied that accusation.
DHS
also denied that the arrests were retaliation for the ID card
program. According to a letter written after the raids by the
then-Assistant Secretary of Homeland Security, the plan for
the New Haven raids was submitted on April 20, 2007 and
approved on May 4, 2007. The Assistant Secretary asserted
that the New Haven arrests were part of a larger enforcement
initiative called "Operation Return to Sender"
focused on the arrest of fugitive aliens. App'x 315. Of
the approximately thirty people arrested in New Haven on June
6, 2007, only five had outstanding deportation orders, and
only one or two had criminal records. After the arrests on
June 6, ICE temporarily postponed its fugitive search
operations in Connecticut.
Petitioner
Christian Rodriguez was arrested during these raids. At the
time, Rodriguez was working in construction for Antonio
Barroso, an independent contractor. The previous day, Barroso
had allowed Rodriguez to borrow his car and keep it
overnight. Id. When Barroso was arrested in the
early morning of June 6, Rodriguez received a call asking him
to return the car. Rodriguez understood that there were
police officers at the house and Barroso needed to retrieve
documents from the car. Id. After receiving the
call, Rodriguez immediately got into the car, wearing sandals
and the clothes he had slept in. Id. Rodriguez
arrived at Barroso's residence around 7:00 a.m.,
approximately 30 minutes after Aucapina had been arrested.
Id.
As
Rodriguez pulled into the driveway, he noticed two
"police officers" (actually ICE agents). App'x
253. Rodriguez parked, and the officers walked toward him
until they were about two feet away. Id. Rodriguez
did not feel that he was free to leave. Id.
Rodriguez
is fluent in Spanish but not proficient in English. The
officers began speaking to Rodriguez and conducted the
conversation in English, though one officer spoke minimal
Spanish and would restate some words in Spanish when
Rodriguez indicated that he could not understand.
Id. Rodriguez gave all of his answers in Spanish.
Id. When one of the officers asked him what he was
doing at the house, Rodriguez responded that he didn't
live there but he was returning the car to his boss.
Id. When asked for identification, Rodriguez told
the officers he did not have it on him because he had rushed
to the house after getting the phone call. Id.
Rodriguez
was handcuffed, arrested, and charged 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, and
brought to the Wyatt Detention Facility in Central Falls,
Rhode Island. Rodriguez was detained at the facility for 21
days before being released on bond.
Following
Rodriguez's arrest, immigration officers prepared a Form
I-213, Record of Deportable/ Inadmissible Alien, on the same
day, June 6, 2017. "A Form I-213 is an official record
prepared by immigration officials when initially processing a
person suspected of being in the United States without lawful
permission," which courts consider "presumptively
reliable and admissible even absent the testimony of the
officer who prepared it, unless the reliability of the form
is somehow undermined." Zuniga-Perez v.
Sessions, 897 F.3d 114, 119 n.1 (2d Cir. 2018) (internal
citations and quotation marks omitted). The Form I-213
purporting to describe Rodriguez's arrest states,
inter alia, that Rodriguez was encountered by
immigration and other law enforcement agents "at his
residence." App'x 245. It also states that
"[c]onsent to enter the residence was given by an
individual identified as Isadora Riofrio," and that
Rodriguez made admissions concerning his alienage. App'x
245-46. As discussed below, the BIA later ...