Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Exh. 51:
Exh. 52:
Exh. 53:
Exh. 54:
Exh. 55:
Exh. 56:
Exh. 57:
Fugtive Operations Proga (Feb. 2009);
Floor plan of the Respondent's apaent on April 18, 2007;
Floor pla of the Respondent's aparent on Aprl 18, 2007 with
descriptive marking made durng testimony;
Cadozo Imigrant Justice Clinic: Constitution on ICE: A Reor on
Immigation Home Raid Operations (2009);
Immigation Cour and Boad of Immigation Appeals decisions on
motions to suppress;
ICE Memorandum on National Fugitve Operations Progam (Dec. 8,
2009);
Additional Immigation Court decisions on motions to suppress;
Additional law review articles regarding Fourth Amendment adjudication
in imigation cous.
III. TESTIONY
The Respondent testified tat on April 18, 2007, he lived at 110 Union Avenue,
Riverhead, New York. The apaent is a tee bedroom-unit on te gound foor of a house,
and on that date the apartment was occupied by seven men. He slet in a bedroom with three
oter individuals: his brothers Carlos and Crstobal, and another person named Orlando. 1 The
three brothers had beds, and Orlando, who had only been staying there about eight days, slet on
a small mattess on the foor. A second bedroom was empty, and had a locked door.
2
A third
bedroom was used by men named Francisco Reyes, Hector Batzin, and Felix.
3
The Respondent
stated tat the residents of te house would lock te font door at night, and would usually check
that the windows were closed, but did not always check.
At about 5:00 in the moring on Aprl 18, the Respondent was in his bed, awake because
the phone had rng a little earlier and woken him up. He stated that he head te noise of cars
ar iving, and thinks a couple of cars came up onto te driveway next to the house, while more
cas stayed by the font of the house. Tere was a window next to the Respondenfs bed with a
blind on it, and the Respondent moved the blind to te side and looked out. He saw people
getting out of the cars and running around the house. The Respondent remained in bed and
covered his fce. He heard aggessive voices speaking in English, saying, "Police, police, open
the door!"
Te Respondent testifed that there was an air conditioner in te window next to his bed.
While his head was under the covers, te air conditioner fll, and the window was raised up. A
agent hit him on the head with a heavy metal fashligt three times. The Respondent took his
head out fom under the covers and saw te agent with the fashlight, who told him to get up and
open the door. He stated that te agent's body was half inside his room and half outside the
house. The Respondent testifed tat he later had a large brise on his head fom the fashligt,
although he did not know why tis detail was not in his written statement.
1 Tis bedroom is marked a Bedroom# I on te foor plan i [Ex. 52.)
2 Marked as Bedroom# 2. Id.
3 Marked a Bedroom# 3. Id.
fMf. PW
4
Wf WM: ::: - v * ....... . . i.o.i . . . . . . .u. .~ . :.
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The Respondent stated that he did not get up, but his brother Carlos went out to the
kitchen, leaving the bedroom door open. The Respondent heard another agent's voice, which
sounded like it was by or near the kitchen window. He could not see the aget fom where he
was i bed. The voice was very aggessive, and screamed at Carlos, "Open the door, open the
door!" The Respondent stated that Carlos later told him tat te agent had one fot inside and
one fot outside the window. He later stated that Carlos told him the agent came completely
inside the ktchen.
The Respondent saw Carlos open the font door. A he was removing the latch, agents
"pushed him over" and came into the house. He testifed that he did not hear Carlos or any other
housemate gve peission to enter the home, nor did he hear any agent ask fr perission to
enter. The Respondent stated that the agent who had been at his own bedroom window climbed
back out and came in through the font door. He did not know how many agents in total entered
the home. He stated that fur agents came into his bedroom, one was in the kitchen, and the rest
were all over the house. He later estimated that there were more than ten agents in the house.
A agent gabbed the blaet of his bed, gabbed him by his shoulder, and got him up out of
bed. The agent then put plastic handcufs on the Respondent with his hands in font of him. Te
Respondent testife that befre he was handcufed, he did not say anything, and no agents asked
him any questions, read him any rights, or showed him any papers. He stated that he did not fel
fee to leave.
The Respondent stated that the agents took him to the kitchen. A he was moving toward
the kitchen, he saw an agent break down a door by kicking it in. This was the door to the second,
unused bedroom, which had been locked. Te Respondent also saw tat the kitchen window was
raised all te way up, and stated that it had been closed, but not locked, the night befre. Te
agents sat the Respondent down on the gound in the kitchen and talked on phones and radios.
Agents wee surounding the residents of the house as they sat on the gound. The Respondent
was stll handcufed, and stated that he did not fel fee to get up and leave.
The Respondent testifed that the agents asked him fr identifcation, and took him back
to his bedroom. They opened the drawers and looke inside. The Respondent does not know if
they obtained identifcation in the room or not. He stated that he never gave perission to search
his house, heard any housemate gve perission tosearch, nor heard any agents ask fr
perission to search. Afer the agents were done looking through the drawers, they took the
residents outside and put them in a van. The Respondent stated that the agents drove them to
Manhattan, althoug he only leaed where they were later. They were taken to a ofce, but he
did not kow the address. He stated that the trip took an hour ad a half or more.
The Respondent testifed that two agents asked him questions in the ofce, and stated
that they spoke very aggessively. He recogized the agents as having been in his house. The
questioning took place in English, which the Respondent mostly did not undestand, althoug
one of the agents did spea a litle Spanish. He stated that he siged a lot of papes in English,
and ageed that he had signed Exhibit 3(10). He testifed that the agents told him to sig quickly
so he could leave quickly, and also told him that if he did not sig quickly, he would be back in
the ofce in a month.
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The Respondent stated that he was never told that he was being arested or interviewed
on suspicion of being an alien not entitled to remain the United States, that he had the right to be
represente by counsel at no expense to the goverent, or that his statements might be use
against him in later administative proceedings.
IV. LEGAL STANDARDS AND ANALYSIS
4
I. Applicabilit of Exclusionary Rule in Removal Proceedings
As a preliminary matter, the Court declines to adopt DHS's lengthy argument that neither
immigation judges nor the Board of Immigation Appeals ("Boad") should rle on the merits of
motions to suppress fr Fourth Amendment violations.
5
DHS Brief at 12-27. These arguments
were recently rejected in detail by the Boad in Juan Calos Guevara-Mata, A97-535-291 (BIA
June 14, 2011) (unpublished), at 5-7. The Boad made clear, ad the Court agees, that
immigation courts are both able and required to protect respondents' constitutional rigts, and
that the Second Circuit expressly authorizes suppression in the case of egegous constitutional
violations. Almeida-Amaral v. Gonzales, 461F.3d 231, 234-35 (2d Cir. 2006); see also
Melnitenko v. Mukasey, 517 F.3d 42, 46-47 (2d Cir. 2008).
The Supreme Cour in INS v. Lopez-Mendoza generally precluded the use of the
exclusionary rle in removal proceedings, but lef open the question of whether evidence might
be suppressed ifthere were reason to believe that Fourth Amendment violations by immigation
agents were widespread, or ifthere were egegious violations of the Fourth Amendment which
underined fndamental firess or the probative value of the evidence. 468 U.S. 1032, 1050-
51 (1984). The Second Circuit took up the invitation in Almeida-Amara, holding that exclusion
of evidence is indeed approprate if the respondent establishes either "(a) that an egegous
violation that was fndamentally unfair had occured, or (b) tat te violation -- regadless of its
egegousness or unfairess -- underined the reliability of the evidence in dispute." 461 F.3d at
235.
In discussing whether there was an egegious violation, the Court considered two fctors:
the validity or invalidity of the seizure or goverent conduct (the ofensiveness of the action);
and the severity of the seizure or goveent conduct. Id. The Court fund that the
goverent's conduct in Almeida-Amaal's case was a Fourt Amendment violation, but not an
egregious one. Under the frst prong of the test, Almeida-Amaral was stopped without
reasonable suspicion, but not necessaily fr a reason as ofensive as his race; and under the
second prong, his seizure was very mild in nature and consisted only of being verbally ordered to
st9p by an ofcer. Id. at 236. Since the seizure itself was not sufciently severe, the baseless
stop could not be considered a egegious violation. Id. at 236-37. Te Court stated that severe
A it decides this case on other grounds, the Cour does not reach the Respondent's arguments regarding
suppression based on widespread constitutonal violations. See Resp. 's Post-Hearing Brief at 23-25. Te Cour
fds it most approprate to fcus on the specifc evidence regarding the Respondent's arest, which is dispositive of
the moton to suppress, instead of expanding the case's scope to a nationwide examinaton of ICE actions. The
Cour also does not reach the Respondent's arguments that proceedings should be terinated based on regulatory
violatons by ICE. Id. at 29-31.
5 The OHS brief repeatedly refr to immigration judges as "EOIR adjudicator." The title and authority of
immigraton judges is explicitly ganted by statute and regulation. INA 10l(b)(4); 8 C.F.R. 1240.1.
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seizures migt be particularly lengthy or include a show or use of frce, but was clear that it was
not providing "a exhaustive list of what might constitute an egegious violation of an
individual 's rights." Id. at 235 n. l , 236.
The respondent bears te burden of establishing a prima facie case fr suppression, which
must include detailed afdavits or other objective evidence. See Matter of Tang, 1 3 I&N Dec.
691 (BIA 1 971 ); Matter of Wong, 1 3 I&N Dec. 820 (BIA 1 971 ). If the respondent establishes a
prima facie case, the burden shifs to DHS to justif the manner in which it obtained the
evidence. Matter of Bacenas, 1 9 l&N Dec. 609, 61 1 (BIA 1 988).
II. Egregous Fourth Amendment Violatons i Respondent's Arrest
While unpublished Board decisions do not have precedential value, the Court notes that
Guevara-Mata, in which te Board upholds an IJ's gant of a motion to suppress and terinate,
deals with a case nearly identical to this one. The cases both involve te same city ad time
period (Riverhead, N, Mach-April 2007), frcefl home ent by multiple ICE agents without
warant or consent, handcufng residents befre asking them any questons or advising them of
rghts, warantless search of bedrooms and seizure of identifcation documents, tasportation to
Manhattan fr frther custodial interogation, and DHS intoduction of documents fom a freig
goverent, gathered a a result of the arest, as purorted "independent evidence" of alienage.
A097-535-291 at 2-4, 9- 1 0. Diferences in the fcts are discussed below; most notably, the home
enty in this case is more severe. The Court fnds the Board's decision in Guevara-Mata higly
relevant and persuasive, and adopts much of its reasoning.
A. Violatons i Home Entry, Seiure, and Search
I . Home ent without warrant or consent
The core of Fourth Aendment protection is the rigt to be fee fom unjustifed
goverent intsion into one' s home. See Payon v. New York, 445 U. S. 573, 585 ( 1 980). The
Repondent testifed creibly and consistently with his afdavit about the events of April 1 8,
2007, and based on the record, the Court fnds that such an unjustifed intusion took place. ICE
agents entered the Respondent's home not by legal means but by intimidation: by attempting to
crawl through te windows early in the moring, shouting at the residents to open the door, and
pushing their way through the door without warant or consent.
It is undisputed that the ICE agents did not have a judicially approved search or arest
warant on April 1 8, 2007; they had an administative war ant that allowed them to arest only
the Respondent's brother, Carlos. See [Exh. 43.J Therefre, ICE could have only legally entered
the apartent with valid consent, the existence of which is the goverent' s burden to prove.
United States v. Isiofa, 370 F.3d 226, 230 (2d Cir. 2004). ICE did not gain consent. I response
to agents coming in through his windows ad shouting to open the door, Carlos opene te door,
upon which the agents pushed their way into the apartment without perission. See id. at 233
(where numerous agents entered the limited-English petitioner's home, yelled at him, ad
"demanded" he consent to a search, no valid consent fund). The Respondent testifed that he
never heard a reuest to enter or anyone gating consent. A the agents entered, they stated in
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English that they were looking fr Carlos, and to their good frtune, Carlos promptly identifed
himself At this point, with their target standing unaed in the dooray, confring his
identity, ICE agents could have arested him and lef. Instead, multiple agents came frther
inside, and entered the apartent's bedrooms, where they encountered the Respondent.
DHS essentially concedes this sequence of events, but suggests that somehow Carlos
opening the door ad identifing himself migt have gven the ofcers the reasonable belief that
they could enter. DHS Brief at 44-45. The Court has no idea how this would constitute consent
to enter, and DHS cites no case in suppor of this proposition. At ay rate, DHS submitted no
statement fom any ofcer who was present tat states that agents believed they were given
consent. Te goverent's entry into the Respondent 's home was without enty warant or
consent, and violated the Respondent 's Fourth Amendment rights.
2. Seizure without reasonable suspicion
ICE's seizure of the Respondent was also a violation of the Fourth Amendment. The
Respondent testifed credibly that an ICE agent came into his bedroom, removed him fom his
bed, and handcufed him without even asking him any questions. The agent physically directed
h to the kitchen ad sat him down on the foor where he was surounded by other agents. This
easily constitutes a seizure. Cf Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. 2008)
(motion to suppress denied where petitioners were not seized, as they were not restained
physically or by a show of authorty).
DHS has not put frth any basis at all fr te seizure of the Respondent. It has not
claimed that the ofcers had a reasonable belief, based on specifc, articulable fcts, that the
Respondent was in the country illegally befre handcufng him. See 8 C.F.R. 287.8(b)(2).
The Court declines to fnd that the seizure was race-based; while it might have been, it also
migt have been out of general overealousness and the agents' desire to arest every person in
the house. As there are fw fcts in the record regarding the ofcers' motives, the Court fnds it
prdent to fnd only that DHS did not demonstate any reasonable suspicion fr seizing the
Respondent.
DHS's argument that its seizure of the residents of the apartent was "consistent with a
protective sweep of the premises" is totally inapposite to the legal standards fr prtective
swees. DHS Bref at 45. A swee is authorized when ofcers have reasonable suspicion that
the aea harbors dagerous persons, and is limited to a "cursory inspection" of places where
people might be hiding. Maland v. Buie, 494 U.S. 325, 335-36 (1990) (protective sweep is
"not a fll search of the premises"); see also United States v. Hassock, 631 F.3d 79, 86 (2d Cir.
2011) (noting conce that too generously constring this doctine will enable pretextual
war antless home searches). As noted befre, DHS has advanced no articulable fcts about its
beliefs regarding te home entry, ad instead of quickly aresting their target at the door, ICE
agets pushed past him to round up every person in the apartent, kicked in an interior door, and
searched through closets and drawers. The home raid can in no way be re-famed as a
"protective sweep."
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3. Search without warrant or consent
ICE' s war antless search of the Respondent's apartent also violated the Fouh
Amendment. Payon, 445 U. S. at 586 (stating that war antless home searches are presumptively
uneasonable). Afer handcufng the Respondent and the other residents of his apartent, ICE
agents asked fr identifcation documents, but did not allow the Respondent to retrieve them.
Instead, they searched through his bedroom without a warrant or his consent. They also appear
to have frceflly kicked and peranently damaged a door during their search. [Exh. 9.] The
Respondent testifed credibly tat he was not shown any papers and that he was never asked fr
consent to search, nor did he hear anyone else asked fr consent. There was also no evidence of
apparent exception, such as exigent circumstances, and fr the reasons above, the search met
none of the standards fr a protective sweep.
B. Egregiousness of Violatons
It is not enough fr the Respondent to establish that ICE violated the Fourh Amendment
in its raid on his aparent; he must also show that the violatons were egegous. The Court
fd that he has done so under the standards articulated by the Second Circuit. I Ameida
Amaral, the Court deterined that while the seizure of the petitioners lacked reasonable
suspicion, it was so mild in nature as to almost not be a seizure at all, as it consisted only of an
ofcer verbally orderng the petitioner to stop. 461 F.3d at 235. As a result, the ofensive
conduct was not combined with a severe enoug seizure to be deemed egegous. This case
presents a very diferent set of fcts.
The seizure of the Respondent was both highly severe and lengthy. ICE gained access to
the Respondent through a illegal home entry marked by ared agents partially or completely
crawling through the windows, hitting Respondent with a fashligt, shouting orders to the
residents to open the font door, and then entering the home without a warrant or even asking fr
perission to enter. Despite l eaing that the person who opened the door was actually their
target, ICE agents continued the operation and handcufed the Respondent in his bedroom
witout asking him any questions or infring him that he was under arest or had cerain rights.
ICE sat the Respondent and his roommates on the foor, handcufed and surounded by agents,
and then drove te to Manhattan fr interogation. The entire time in custody, fom the arest
shorly afer 5: 00 AM to the Respondent's release fom questioning in Manhattan, appears to
have been seven hours or more. See [Exh. 2(ID)] (showing the Respondent's For I-21 3 was
"received" at "1 200"); [Exh. 43(ID)] (showing the arest warant fr Calos was sered on him at
1 :00 PM). This is entirely diferent fom the brief roadside stop conidered in Almeida-Amaral.
465 F.3d at 235.
The severity of the seizure is then combined with the ofensiveness of the Fourth
Amendment violations - in this case, an illegal home entry where DHS has not submitted any
evidence that it believed in good fith that agents had consent to enter, and an arest and search
without any claim of probable cause or reasonable suspicion. Te picture painted by the record
of te events of April 1 8 demands serious justifcation or rebuttal; DHS submitted neither. The
Court, like that in Almeida-Aaral, does not fnd that the Respondent has proven a race-based
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seizure. Nevertheless, the violations were more severe than in Almeida-Amaral, due to the
intimidating ad coercive nature of the home enty.
Finally, the home enty, arest, and search in this case closely resemble the fcts in
Guevaa-Mata, where the Board upheld a fnding of egegiousness, with the diference that the
home entry here was even more frcefl and inherently coercive. A097-535-291 at 2-3, 1 0. The
Court therefre fnds that under the standards aiculated by the Second Circuit, the goverent
conduct in the Respondent's home was both legally baseless and highly severe, such that it
constitutes a egegous violaton warating suppression of the goveent's evidence.
Almeida-Amaral, 461 F. 3d at 235-36.
As the Respondent met his burden to make out a prima facie case fr suppression, the
burden shifs to the goverent to justif the manner in which the evidence was gathered.
Barcenas, 19 l&N Dec. at 611 . The Court was explicit with the parties that it would not hold
multiple individual hearings, and that since the fctual allegations were clea fom te
Respondent's submissions, OHS should submit potential witness statements or rebuttal evidence
in preparation fr the April 20, 2009 hearing so as to efectively use the parties' time. Prior to
that hearing, OHS submitted Exhibits 40(1D)-46(ID); however, OHS chose not to present any
witesses or submit ay rebuttal evidence about the events of April 18, 2007. 6 A such, the
Cour fnds that DHS did not justif the manner in which its evidence of alienage was obtained,
and will suppress all such evidence gathered as a result of the Respondent's April 18 ar est.
III. Admssibility of Birth Certifcate
A. Attenuaton and Independent Source Doctrine
The Supreme Court in Lopez-Mendoza noted that proving alienage ''will sometimes be
possible using evidence gathered independently of, or suffciently attenuated fom, the original
arest." 468 U. S. at 1 043. The goverent argues that Exh. 44(1), a birth certifcate, is
evidence that was gathered independently of the Respondent's arrest, and is sufciently
attenuated fom the events at his home as to not be considered "fit of the poisonous tee." See
Sega v. United States, 468 U. S. 796, 804 ( 1 984) (stating that the exclusionary rle extends to
indirect products of unconstitutional conduct). Te Court disagrees.
DHS is the pay who bears the burden of proving that evidence is suffciently attenuated
to be admissible. See Brown v. Illinois, 422 U.S. 590, 604 (1975); United States v. Og, 921
F.2d 442, 447 (2d Cir. 1990). The Cour has no evidence befre it explaining how or when DHS
obtained the certifcate, despite may opportunities fr OHS to fle affdavits or oter evidence.
Statements by counsel during hearings are not evidence. Matter of Laureano, 1 9 l&N Dec. 1 , 3
n.2 (BIA 1 983). Even those brief statements, however, indicated that the document appears to
have been obtaine through direct reliance on the 1-213, which if tre, would be a clear example
of"fit of the poisonous tree."
6 Exhibit 46(1D), an afdavit ofICE Supervisory Detention and Deportation Ofcer Daren Williams, which makes
general statements about ICE enfrcement operations in New York in 2007, does not constitute rebuttal evidence,
since the author expresses no personal kowledge of the operation at the Respondent's house, and w not available
fr cross-examination.
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The Court has no basis fr fnding that the document was gathered indeendently of the
infnation on the 1-21 3 and I-21 5c, especially since OHS admitted that it did not have any
records fr the Respondent befre the arest in his home and its database checks ted up no
pre-existing criminal or other records. See Guevara-Mata. A097-535-291 at 7-8 (rejecting
evidence because OHS failed to show how freign identty documents were independent
evidence, since it appeared OHS had no knowledge of the respondents befre the illegal ar est
and requested the freig documents only afer leag the respondents' nationalities durng the
interogaton.); compare Matter of Cerantes-Torres, 21 l&N Dec. 351 , 352-53 (BIA 1 996)
(fnding independent evidence of removability where the respondent had voluntarily submitted
his employment authorization card to the Court). OHS is corect in arguing that attenuation
analysis is ofen more complex than fnding a simple ''but-fr" connection between the
constitutional violation ad evidence later obtained. Hudson v. Michigan, 547 U. S. 586 (2007).
Te Court does not need to engage in lengthy analysis, however, because OHS filed to
demonstate that the birh certifcate was independent and not a direct result of the home raid,
and thus faile to meet its burden of proof
A fr the other evidence profered by OHS, none of it has been shown to be fee of the
taint of the egegious Fourth Amendment violations at te Respondent' s home. OHS has not
argued tat the 1-21 3 or I-21 5c constitute independently acquired evidence.
7
B. Use of Identt Evidence
I a relate argument, the goverent claims that it may intoduce the birth certifcate
because it was obtained throug the use of identity evidence, which is never suppressible.
Lopez-Mendoza, 468 U. S. at I 039. While it is true that a person' s identity is not suppressible,
Respondent does not seek to suppress the basic fct that he is Miguel lxpec Chitay. The Second
Circuit has not defned "identity evidence," but other circuits have made clea that is it simply
evidence establishing who a person is. See United Statesv. Farias-Gonzalez, 556 F.3d 1 1 8 1 ,
1 1 87 (1 1 th Cir. 2009) (suppression of all evidence would "penit a defndant to hide who he
is."); United States v. Guzman-Brno, 27 F.3d 420, 421 (9th Cir. 1 994) (affning suppression of
all the defendant's statements except "the initial admission of his name"). The notion that
identity is not suppressible is primarily a jurisdictional doctrine, meant to keep individuals fom
claiming that they cannot even be sum oned to court because they were unconstitutionally
arested. Lopez-Mendoza. 468 U. S. at 1 039-40; see also Farias-Gonzalez, 556 F.3d at 1 1 85
(1 1 th Cir. 2009) (ageeing that the Lpez-Mendoza Cour was "addressing a jurisdictional
challenge."). Here, it is undisputed that the Respondent has been physically present ad
admitted his name at every hearing.
OHS has asserted that "identity evidence" encompasses much more tha a person's
physical presence and name. The Cour is unaware of any case fom the Board, Second Circuit,
or Supreme Court that holds that "identity" actally means proof of place of birh, names of
paents, number and naes of siblings, or other broad categories of evidence, such as those
DHS has also not submitted evidence on how it obtained the identifcation cards in Exhibits 44(1) and 45(I),
although DHS did not explicitly claim these exhibits as proof of alienage. To avoid any confsion in the event of an
appeal, the Court does not fnd any of the goverent's evidence admissible as proof of alienage.
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contained on the 1-21 3 and Record of Swor Statement. I fct, the Court is unaware of any
federal court that has interreted the doctne this broadly, and DHS's briefng does not provide
suppor fr its asserion.
8
The Ninth Circuit in Guzan-Brno specifcally declined to suppress
the defendant's admission of his name while suppressing the rest of his statements, including his
place of birth, as fit of an illegal arest. 27 F. 3d at 41. This is consistent with a view that
identty evidence is "inherently diferent fom other kinds of evidence," instead ofDHS's view,
which confates identity evidence with evidence of alienage and removability. United States v.
Del Toro Gudino, 376 F.3d 997, 1001 (9th Cir. 2004); see Matter of Sandoval, 1 7 l&N Dec. 70,
79 (BIA 1 979). If virtally any biogaphical statements by respondents were considere
"identity evidence," the doctine would become the exception that defats the rule. Such an
approach would seriously undermine Almeida-Amaral and the possibility of suppression in the
Second Circuit, which this Court has neither the power nor the desire to do.
Aside fom these problems, the Court has no proof that OHS actually acquired the birth
certifcate only through the use of identity evidence, as opposed to through the use of all the
infration it gathered fom the illegal arest. This is because, as discussed reeatedly, DHS
declined to submit any evidence of how ad when the birth certifcate was obtained, despite the
Court's direct requests. The Court fnds that the alleged birh certifcate is not sufciently
attenuated or independent fom te constitutional violations in this case so as to be fee of the
taint of illegality. In addition, DHS did not show that it was obtained only through non
suppressible "identity" evidence. Accordingly, the Court will suppress Exhibit 40(1), along
with the rest of the goverent's evidence.
IV. CONCLUSION
In light of the fregoing, the fllowing orders shall be entered:
ORDERS
IT IS HEREBY ORERED that the Respondent's Motion to Suppress be GRANTED.
IT IS FURTHER ORDERED that removal proceedings against the Respondent be
TERMINATED WITHOUT PREJUDICE.
1
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=
8 Te Sixth Circuit h on one occasion considered a criminal defndant' s date of bir to be non-suppressible
identty evidence, which was used along wt his name only to r a standard police check and fnd an outstanding
warant. United States v. Navaro-Chalan, 420 F.3d 581 (6th Cir. 2005). The Cour expresses no opinion on this
view, but notes that the Respondent h not sought to suppress his date of birth.
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