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Rodriguez v. Barr

United States Court of Appeals, Second Circuit

November 21, 2019

Christian Rodriguez, Petitioner,
William P. Barr, United States Attorney General, Respondent.

          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.


         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 ...

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