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Yoc-Us v. Attorney General United States of America

United States Court of Appeals, Third Circuit

July 31, 2019


          Argued on November 7, 2018

          On Petition for Review of an Order of the Board of Immigration Appeals (BIA-1: A213-090-679 and BIA-1: A213-090-683) Immigration Judge: Honorable Walter A. Durling

          Joanna J. Cline, Esquire (Argued) Anthony C. Vale, Esquire Andrew R. Rogoff, Esquire Pepper Hamilton Counsel for Petitioners

          Jennifer A. Bowen, Esquire OIL United States Department of Justice Office of Immigration Litigation Dana M. Camilleri, Esquire (Argued) United States Department of Justice Office of Immigration Litigation Counsel for Respondent

          David R. Fine, Esquire K&L Gates Counsel Amicus-petitioner

          Before: AMBRO, SCIRICA and RENDELL, Circuit Judges



         Early one morning, Petitioners Erick Geovany Yoc-Us and Luis Calel-Espantzay were traveling in a van that was stopped for speeding by a Pennsylvania state trooper. During the course of the stop, the trooper discovered that Petitioners were undocumented aliens. The trooper detained them and called Immigration and Customs Enforcement ("ICE"), who interviewed and fingerprinted Petitioners and took them into custody. In the civil removal proceedings that followed, Petitioners argued that the stop violated the Fourth Amendment and that the evidence of their alienage should be suppressed. The Immigration Judge ("IJ") and the Board of Immigration Appeals ("BIA") were unpersuaded. While the Supreme Court has held that the Fourth Amendment does not require suppression of evidence in civil removal proceedings where the purportedly offending conduct by federal agents was neither egregious nor widespread, this case presents a different context, namely, a state trooper's conduct rather than that of a federal officer. Accordingly, we must consider whether this difference leads to a different result.



         Petitioners are undocumented aliens from Guatemala who have lived and worked in New York since 2008. They were traveling in a van with eight other men, returning to New York from Georgia. According to declarations submitted by Petitioners and other passengers, Pennsylvania State Trooper Luke C. Macke pulled the van over for speeding between 7:40 and 8:00 in the morning. Petitioners were not driving the van when this happened and were instead asleep in the back of the van. When Macke approached the driver of the vehicle, he asked for his license and registration. Petitioners allege that the driver did not have his license with him, but he gave Macke his social security number and offered to call his wife to get his driver's license number. The owner of the van, who was seated in the front passenger seat, gave Macke his own license and registration.

         Petitioners allege that "[i]nstead of going back to his vehicle to check [either the van owner's or the driver's] information . . . [, ] [Macke] then went to the side passenger door of the van, opened the door and said [to the eight passengers in the back], 'let me see your immigration papers, work permit, visa, passport and ID.'" Calel-Espantzay A. 211. Petitioners claim that they did not have any documents to give him, and their declarations do not indicate that they verbally offered him any information. Contrary to this account, however, the Records of Deportable/Inadmissible Alien ("Forms I-213") produced by the Government purport that, in response to Macke's inquiry, the Petitioners admitted that they were citizens of another country. According to the Forms I-213, Macke contacted ICE at approximately 8:30 a.m. and "stated that he encountered nine individuals during a traffic stop who claimed to be citizens of; [sic] Guatemala, Mexico, El Salvador and Ecuador." Id. at 245. Macke issued citations to the driver of the car at 8:57 a.m.[1] Id. at 177-78.

         Petitioners allege that Macke ordered them to drive the van to a nearby rest stop and, once there, positioned his own car so that Petitioners' van could not be moved. They claim that he ordered them to turn off the van and remain in it and that "[h]e then began to interrogate [them] about [their] immigration status," again "asking to see [their] work permit[s], passports, visas and social security card[s]." Id. at 211. Between the time they reached the rest stop and the time ICE agents arrived, Petitioners allege that Macke would not allow them to leave the van to use the bathroom, would not allow them food or water, and would not let them turn the air-conditioning on in the van even though the weather was "humid." Id. at 211-12. They state that they could not leave and that they felt as though they had to answer his questions. They also "d[id] not know why [Macke] kept [them] there except for the fact that [they] all look Hispanic." Id. at 212.

         According to the Forms I-213, ICE agents arrived at approximately 9:30 a.m., between an hour and a half and two hours after the alleged time of the initial stop. The ICE agents conducted interviews of Petitioners and other passengers and fingerprinted them. The Government's evidence asserts that all "freely stated that they were not citizens of the United States[, ] had illegally entered the United States . . . [, and] were not in possession of any immigration document that would allow them to remain the United States lawfully." Id. at 245. They were then handcuffed and transported to an immigration office, where they remained for approximately three hours, until they were moved to a local county prison.


         The Department of Homeland Security ("DHS") served Petitioners with a Notice to Appear Form, alleging that they were subject to removal pursuant to 8 U.S.C. § 1182(a)(6)(A)(i). Petitioners moved to suppress any evidence of their alienage obtained as a result of the stop, arguing that it had been discovered through a violation of their Fourth Amendment rights. Because the Government would not be able to meet its burden of proving alienage without this evidence, Petitioners also moved to terminate the removal proceedings.

         Before the scheduled removal hearing was held, the IJ denied Petitioners' motion and declined their request for an evidentiary hearing. Citing Lopez-Gabriel v. Holder, 653 F.3d 683 (8th Cir. 2011), the IJ concluded that the exclusionary rule does not apply to intersovereign situations where a violation was committed by a sovereign other than the one involved in the civil proceeding. The IJ also credited the Government's evidence and found that Petitioners' "complaint against the ICE officers lacks any corroborating evidence" and only amounts to "unsubstantiated allegations." Yoc-Us A. 135. The IJ discredited Petitioners' account that Macke stopped them because of their Hispanic appearance, finding that their claim was "refuted by evidence which shows that their vehicle was stopped for excessive speed." Id. Finally, with regard to Macke's alleged misconduct, the IJ concluded that the Immigration Court "lacks authority to provide any remedy for a separate sovereign's misconduct." Id. In a subsequent decision, the IJ ordered Petitioners removed from the United States to Guatemala.

         A single-member panel of the BIA affirmed the IJ's ruling in substantially identical opinions for each Petitioner. Citing INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the BIA stated that the Fourth Amendment exclusionary rule only applies to removal proceedings where "there are egregious Fourth Amendment violations that transgress Fifth Amendment notions of fundamental fairness, undermining the probative value of the evidence." Id. at 4; Calel-Espantzay A. 3. The BIA "discerned no clear error" in the IJ's findings. Yoc-Us A. 3; Calel-Espantzay A. 2. It agreed with the IJ that Macke conducted a lawful stop and that Petitioners failed to show that Macke or the ICE agents engaged in egregious conduct. Because it found that Petitioners did not establish a prima facie case for suppression, the BIA concluded that an evidentiary hearing was unnecessary. Lastly, the BIA rejected Petitioners' claim that this type of violation was "widespread," finding that they failed to present any supporting evidence. This petition for review followed.


         The BIA had jurisdiction to review the IJ's order of removal and order denying Petitioners' motion for suppression and termination pursuant to 8 C.F.R. § 1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252(a)(1).

         Because the BIA issued its own opinion, we review its decision rather than that of the IJ. Moreno v. Att'y Gen., 887 F.3d 160, 163 (3d Cir. 2018) (citation omitted). However, to the extent that the BIA "deferred to or adopted" the IJ's reasoning, we evaluate the decision of the IJ. Cadapan v. Att'y Gen., 749 F.3d 157, 159 (3d Cir. 2014). We review questions of law de novo, subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Id. We review factual findings "to ensure that they are supported by substantial evidence from the record considered as a whole, and we will reverse based on a factual error only if any reasonable fact-finder would be 'compelled to conclude ...

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