UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT
26 FEDERAL PLAZA
NEW YORK, NEW YORK

File No,: A

In the Matter of:

IN REMOVAL PROCEEDINGS

Respondent

CHARGE: INA § 212(a)(6)(A)(i) Present without Admission or Parole

APPLICATIONS: Motion to Suppress; Motion to Tenninate.

ON :£!EHALF OF THE RESPONDENT ON BEHALF OF THE DEPARTMENT

Richard Geduldig, Esq, Lesl\e S, Evans, Esq,
ISO Broadway, Suite 1600 Assistant Chief Counsel
New York, NY 10038 26 Federal Plaza
New York, New York 10278

DECISION AND ORDER OF TIlE IMMIGRATION JUDGE

I. Procedural Histor~

On July 27, 2005, while sitting in a bus station in Jacksonville, Florida, the respondent was
approached by two agents of the bureau ofCuslOms and Border Protection ("CBP") of the
Department of Homeland Security ("Department" or "DHS"), After answering their questions and,
upon request, providing them with !D, the respondent was arrested and transported to a CBP office.
Later the same day, he signed paperwork, and was served with a Notice to Appear ("NTA'~), charging
him with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or
"Act"), as an alien present in the United States without being admitted or paroled, [Ex. I.)

On November 17,2006, counsel for respondent filed with this court a motion to suppress all
evidence ofrespondent' s identity, alienage and lack oflawful immigration status, and to tenninate

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removal proceedings, Counsel argues that the manner in which such information was obtained by the
governmentviolated the respondent's due process rights under the Fifth Amendment of the
Constitution, The attorney for Immigration and Customs Inspection ("ICE") filed a response opposing
the motion, On June 8, 2007, a hearing was held on the motion, after which the Court reserved
decision,

II. Exhibits

The following documents were marked as exhibits and included in the record Mthe proceedings:

Exhibit I: Notice to Appear, dated July 27, 2005,

Exhibit 2: Respondent's affidavit, dated November 10,2006,
Exhibit 3 (for identification purposes only): Form 1-213, Record of Deportable Alien, dated July 27,
2005,
Exhibit 4 (for identification purposes only): Form 1-214, Waiver of Rights,
Exhibit 5 (for identification purposes only): Form 1-836, Notice of Rights and Request for Disposition,
Exhibit 6 (for identification purposes only): Copy of 1-551 and social security card,
Exhibit 7 (for identification purposes only): Central Index System ("CIS") printout dated July 27, 2005,

III. Testimony

On June 8,2007, the Court heard the testimony of Ross E. Parrish, Jr., Senior Patrol Agent,
eBP, and of the respondent. Their testimony is summarized below,

Agent Parrish testified telephonically that he had been employed with INS/CBP for 29 years
and eight months and was preparing to retire, He had been a Senior Patrol Agent since, November,
1987, and was stationed in Jacksonville, Florida, His duties there included patrolling tbe Greyhound
bus station on Pearl Street, which is a major transportation hub, He said that the number of days a
week he patrolled there varied, but in a given week he would personally arrest five aliens at the bus.
terminal.

Agent Parrish said that he would approach people in the lobby and ask if they would talk to
him. He said that he would talk ti) everybody, He would patrol in full uniform, which included a badge,
a holster and firearm, a magazine holder, handcuffs and pepper spray, He said that he would say hello
and ask if the individual would speak to him; he would then ask where the individual was from, If the
answer was a foreign country" he would ask for their immigration documents, and then call the radio
room to check their status,

The witness had no independent recollection of the respondent, notirig that the incident had
occurred 23 months earlier, The witness indicated that he had reviewed the 1-213 prior to testifying, He
stated that the 1-213 "pretty much" recorded his full encounter with the respondent on July 27,2005,

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He stated that he was in unifonn that day and accompanied by Supervisory Agent Peter Lobur.

Based UpOI) his review of the 1-2J3, Agent Parrish believes that he spoke with the respondent
that day. He asked the respondent ifhe would speak with him; the respondent replied "yes". The
wi tness indicated that the respondent told him he was from Israel. The witness then asked him for his
immigration documents. He stated that the respondent did not move away or indicate that he wanted to
discontinue the conversation.

Agent Parrish continued that he then ran a record check on the respondent, which indicated
that the respondent was on the NAILS lookout list. Such list contained the names ofindividuals who
were previously deported or were otherwise out of status. Based upon such information, the witness
conducted a "pat down" search of the respondent for weapons and detained him. The respondent was
read the Miranda warnings. The witness kept his tlreann in· the holster throughout. The witness stated
that a further search of the respondent back at the office revealed a counterfeit I-55! "green card"
containing an alien number belonging to an entirely different individual. He said that there was also a
"positive hit" on the responderit's fingerprints.

On cross-examination, Agent Parrish stated that he did not remember the particulars, but
remembered the respondent frol11 the picture in front of him. The witness couldnot recall at all how
many people were in the waiting room at the time he encountered the respondent, nor could he recall
how many people he. approached prior to the respondent. He was also unable to recall how many
African-Americans, Caucasians, or Latinos were in the waiting room at the time. He stated that both he
and Agent Lobur were in uniform and anned. He could not recall if they entered the waiting room
together. He could not recall if the respondent was standing or seated.

The witness said that he was "somewhat familiar" with the Florida penal code, but did not
suspect the respondent of committing a crime, adding that it was "a consensual conver~ation." When
asked if before questioning the respondent, the witness suspected the respondent of violating any state
or tederal criminal statute, the witness responded that "there is no statute that applies here". When
asked again whether he thought the respondent had committed a crime, the witness responded "No, I
didn't know." When then asked what made him think the respondent had violated an immigration law
before speaking to the respondent, simply from Jooking at him,tlw witness responded that he didn't
know. Lastly, the witness stated that he did not know how many other people from the Middle East he
saw getting off of the bus that day.

On redirect, the witness stated that he is familiar with the provisions of 8 C.F.R. §287.8(b)(1).
He said that consistent with such regulation, he questioned the respondent but did not impede him from
'walking away. He said that hegenel'ally does not stand right on top of someone being questioned for
safety reasons, but stands maybe two or three feet away.

At the conclusion of questioning by the two sides, the Court asked two additional questions of

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the witness. In response to the first, the witness stated that the respondent's Middle Eastern appearance
in no way factored into his decision to speak to him, as he does not practice racial prot1ling and speaks.
to people of all races and ethnicities. Secondly, he stated that he himself is six feet tall and weighs 215
pounds; Agent Lobur (who was his supervisor at the time) stands approximately five feet ten or eleven
inches tall and weighs between 160 and 170 pounds.

The respondent testified in person. He said that on July 27,2005 he was traveling from New
York City to Florida by bus. He said that the bus was pretty full. He does not believe that there were
any other IsraeliS or Arabs On the bus. The bus made a rest stop in Jacksonville, Florida, where
everyone on the bus (40 to 45 people) exited. The respondent said that the bus temlinal was crowded
to begin with. He said that people in the terminal were speaking Spanish and English, and included
African Americans, Caucasians and Latinos, but no other Israelis or Arabs.

The respondent said that he had a suntan, so his complexion was darker than in cOurt. The
respondent said that the two CBP agents walked directly to him, passing at least 40 others en route. He
did not see them question a single person other than himself. The respondent said that the agents were
Wearing uniforms and had guns. He believes they approached him because of his Middle Eastern
appearance.

The respondent said that he was seated; the two agents remained standing. Agent Parrish
spoke first, asking the respondent where he was from. When he answered "New York City", he was
then asked where he is from Originally. He responded "Israel". He said that the questions ,vere asked in
a nicetone of voice, but that he did not feel safe refusing to answer, and felt that he did not have the
choice to walk away. He said that he was then asked for ID. He stood up to give the agenthis ID, but
was then ordered to "sit back down." He was not handcuffed at this point, and the agents' guns
remained in their holsters. The respondent said that his answers to the questions were not provided
voluntarily. He said that the officers were blocking him, "they were so close to me."

He said that Agent Parrish did most of the talking; "he is the tailer, older guy." After providing
his ID, Agent Parrish told him it would be better ifhe answered their questions; he would make things
easier on himself. The respondent said that no one wouldJeel free to leave under those circumstances ..
He said that after this, he was handcuffed with his hands behitld his back, taken into the empty bus to
get his luggage, and told that he had the right to get a lawyer.

On cross-examination, the respondent said that he had been in the terminal five to ten minutes
when he was approached by the CBP agents. He said that he was approached out of nowhere, as he
was just sitting there dOing nothing. He said that he had no possibility of asking the agents why they
were questioning him, or of saying "excuse me, I need to move." He said that he felt as if the agents
were coming at him to grab him. He said that he was not told that he had no choice but to answer the
questions, "but it felt like that." He said that when he was first approached, he was not told that he was
under arrest. He also felt that he could not tell the agents that they were too close to him, but "it felt like

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SO)neone put me in prison."

The respondent said that at first, he did not know that the agents were immigration officers, but
he came to know it from the questions they were asking.

IV. Legal Standard

A motion to suppress may be 'granted when it is supported by a specific and detailed statement
based on p~rsonal knowledge which establishes aprimaJacie case for suppression. Matter of
Ba:r;:cenas, 19 I. & N. Dec. 609 (BIA 1998). To set forth a prima facie case, the statements in the
motion for suppression must ,be specific and detailed, they must be based on personal knowledge, and
the articles to be suppressed must be enumerated. Matter of Wong, i3 I. & N. Dec. 820, 821·22
(BrA 1971). Ifaprimafacie case is established, the burden then shifts to the Department to justifY the
manner in which it obtained the evidence at issue. Matter of Burgos, 15 L & N. Dec. 278, 279 (BIA
1975); Matter of Tang, 13 I. & N. Dec. 691 (BIA 1971). The Department's failure to justifY the
conduct of its agents resolves the issue in favor of suppression. See Matter of Benitez, 19 L & N. Dec.
173 (BIA 1984); Matler ofTang, 13 r. & N. Dec. at 691.

To briefly detain a person for questioning, an officer needs reasonable suspicion based on
specific articulable facts. See Terry v. Ohio, 392 U.S. 1 (1968). The same is true in the immigration
context. 8 C.F.R. § 287.8(b)(2). The standard to be used to determine if an action amounts to a
seizure is whether a "reasonable person would have believed that he was not free to leave." U.S. v.
Mendenhall, 446 U.S. 544,554 (1980); see also; U.S. v. Tehrani, 49 FJd 54, 62 (2dCir 1995). The
threatening presence of several officers is an example of a circumstance that might indicate a seizure.
See Mendenhall, 446 U.S. at 554. Under the exclusionary rule, evidence seized in violation of
Constitutional protections of the Fourth Amendment cannot be used against the accused at trial. See
MapD v. Ohio, 367 U.S. 643, 648 (1961); Weeks v. U.S., 232 U.S. 383,393 (1914).

Generally, the Fourth Amendment exclusionary rule does not apply in removal proceedings.
See INS v. Lopez-Mendoza,.468 U.S. J 032 (1984), A violation of due process under the Fifth
Amendment can provide the basis for suppression of evidence, though. It is well-settled that the Fifth
Amendment entitles aliens within the United States to due process of law. U.S. Const., amend. V
(guaranteeing due process of law to all persons); Reno v. Flores, 507 U.S. 292 (1993); Plyler v. Doe,
457 U.S. 202, 210 (1982) (stating that "even aliens whose presence in this country is unlawful have
long been recognized as 'persons' guaranteed due process of law by the Fifth and Fourteenth
Amendments"); Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (recognizing that "the Due Process
Clause applies to all 'persons' within the United States, including aliens, whether their presence here is
lawful, unlawful, temporary, or pemmnent"); See also Felzcerek v. INS., 75 F.3d 112, 116 (;!d Cir.

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1996); Matter ofToro, 171. & N. Dec. 340, 343 (BIA 1980).

Ifthe manner in which evidence is seized is so egregious that its probative value is undennined,
or reliance on it would transgress notions of fundamental fairness, the use of that evidence would violate
the Fifth Amendment requirement of due process. See Lops;z-Mendoza, 468 U.S. at 1050·5 I; Matter
of Velasquez, 191. & N. Dec. 377 (BIA 1986); Matter ofToro, 17 L & N. Dec. 340; Matter of
Sandoval, 171. & N. Dec. 70 (BIA 1979). Therefore, evidence obtained pursuant to an egregious
Fourth Amendment violation can be suppressed under the Fifth Amendment. Matter of Toro, 171. &
N. Dec. at 343 (egregious Fourth Amendment violation may render evidence inadmissible under the
due process clause).

A constitutional violation that is invalid (i.e. based on no reason at all) will not be found
egregious unless the seiZUre is suffiCiently severe, or if the stop was based on race (or some other
grossly improper consideration). Almeida-Amaralv. Gonzales, '461 F. 3d 231, 235 (2d Cit. 2006).

v. legal Analysis

The Court finds that the Respondent has established aprimaj'acie case for the suppression ofall
evidence procured during and after his arrest on July 27,2005. The Respondent submitted a motion to
suppress on November 17, 2006 that met the necessary requirements ofaprima/acie case. See Matter
of Wong, 13 I. & N. Dec. at 821 ·822. He specified a Constitutional basis for his motion: adueprocess
violation ofthe Fifth Amendment. Respondent further argued a violation ofthe regulatory requirements of
8 C.F .R. §287.8(b )(2). He also submitted an affidavit with his motion that gave a detailed and specific
account of the events leading to his arrest. FinaIly, the Respondent specified the evidence to be
suppressed, namely, "all evidence ofRespondent's identity, alienage and lack oflawfhl immigration status"
The motion was not based upon conjecture, but rather on the persona] knowledge ofthe respondent. Id.
The mOlion was supported by specific testimony. See Matter of Barcenas, supra at 611.

Having heard the respondent's testimony in person, and having had the opportunity to observe his
demeanor, and having compared his testimony to the evidence ofre:cord, including respondent's own
affidavit, as weI! as the telephonic testimony ofAgent Parrish, th.e Court finds the respondent's testimony
to have been credible in its entirety.

111e Court must next analyze the facts presented and determine whether suppressionis warranted.
It should be noted that the events in question did not OCCur at the border. The Department has not put forth
any argument or submitted any evidence to establish that the bus station in Jacksonville, Florida is the
functional equivalentofthe border. Rather, the Depaltment's sole argtlment is that the questioning ofthe
respondent did not constitute a detentive stop or arrest as described in 8 C.F.R. §§287 .8(b)(2) and (3).
The Department argues that the incident in question constituted casual questioning pursuantto 8 C.F.R.
§287 .(b)( I), to Which the respondent could have refused to answer or walk away. The Department also

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relies on the Supreme COUli decision in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) in arguing that
credible evidence gathered in connection with peaceful anests by INS officers need not be suppressed in
an INS civil deportation hearing.

While Lopez-Mendoza,slIpra. held that generally, the Fourth Amendment exclusionary rule does
not apply in removal proceedings, as discussed above, a seizure which is egregjouslyviolative ofthe Fourth
Amendment can provide the basis for suppression of evidence based upon a violation of due process under
the Fifth Amendment. Almeida-Amaral v. Gonzales, supra; Gonzales-Rivera v. INS, 22 F. 3d 1441 (9 th
Cir. 1994). Additionally, evidence maYbe suppressed based upon violation ofa regulatory requirement
by a Department officer, where the regulation in question serves a purpose of benefit to the alien and the
violation prejudiced interests ofthe alien which were protected by the regulation. Matter of Garcia-Flores,
J 7 I&N Dec. 325 (BIA 1980). Here, the respondent argues that the CBP Agents acted in violation of8
C.F.R. §287.8(b)(2).

If, as the Department argues, the agents' questioning of respondent fell short of constituting a
seizure, there can be no Constitutional violation. In considering the Department's argument, the manner of
questioning must be examined. "As our case law makes clear, there are three levels of interaction between
agents of the goverrunentand private citizens." U.S. v. Tehrani,,49 F. 3d 54, 58 (2d Cir. 1995). This Court
wil I find that the initial questioning ofthe respondent did not constitute an arrest, the third such category.
Thus, the inquiry here is on which ofthe remaining two categories ofinteraction occurred. In Tehrani,
supra, the Second Circuit stated that "[cj6nsensual encounters require no justification so 'long as the police
do not convey a message that compliance with theiT requests is required: [U.S. v.l Glover, 957 F. 2d
[1004] at 1008 (quoting Florida v. Bostick, 501 U.S. 429, 435 (1991». Investigative detentions, the
second categOl)', require 'reasonable suspicion' to believe that criminal activity has occurred or is about
to occur. Glover, 957 F. 2d at 1008."

The language ofthe applicable reglilations mirrors the above case law. 8 C.P.R. §287.8(b) states
in part: (1) Interrogation is questioning designed to el icit specific information. An immigration officer, like
any other person, has the right to ask questions of anyone as long as the immigration officer does not
restrain the freedom of an individual, not under arrest, to walk away." Thus the questioning described in
8 C.F .R. §287 .8(b)(I) would constitute what the courts have defined as a consensual encounter. 8 C.F.R.
§287.8(b)(2) continues: "Ifthe immigration officer has a reasonable suspicion, based on specific articulable
facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United
States or is an alien illegally in the United States, the immigration officer may briefly detain the perscin for
questioning." The preceding language describes what the courts have termed an investigative
detention. ,

In his testimony before this Court, Agent PalTish admitted that priOl·to approaching and speaking
with the respondent, he had no basis at all to support a reasonable suspicion that the respondent was either
engaged in an offense against the U.S., or was an alien illegally in the U.S. Thus, an investigative detention
ofthe respondent would have been improper. The key question is therefore whether the two agents' initial

7
interaction with the respondent constituted a permissible consensual encounter, or an impermissible
investigative detention.

In the instant case, the respondent was seated; the two CBP Agents stood directly in frontofhim
at 45 degree angles (according to the respondent's affidavit). The respondent stated that they stood right
over him, at a distance of one to two feet Agent Parrish, who could not remember any ofthe specifics of
this incident, stated that he could not remember whether the respondent was standing or sitting; he also said
that he generally stood tvvo to three feet from an individual during questioning. Such testimony wil! not be
found to refhte the respondent's account. AgentPalTish also stated that he is six feet tall and weights 2 J5
pounds, and that he and his supervisor were in uniform, with holstered guns, ammunition, handcuffs and
pepper spray visibly attached to their belts. When the respondent stood up to provide Agent Parrish with
rD, he was then told to sit back down. The questions were asked ofthe respondent ina pleasant tone. The
agents did not remove their guns from the holster. The respondent was neither told that he had or did not
have the right to decline to answer the questions or to leave.

The respondent has credibly testified that he did not s1.!bjectively believe that he had the right to
either decline to answer or to leave . The Court will find that under the circumstances described, the
respondent's beliefwas reasonable. Agent PalTish admitted that there was no articulable basis of any type
to reasonably sUspect the respondent of being illegally in the U.S. or of being engaged in a crime. As the
interaction constituted a seizure of the respondent without proper cause, and as the evidence forming the
basis ofthis proceedings was obtained solely as a result ofthe improper seizure, the Court will find that
such evidence was invalidly obtained ..

Howevet, such evidence may only be suppressed ifthe Fourth Amendment violation was egregious.
The first te$t of egregiousness is whether the improper seizure was suffiCiently severe. Almeida"Amaral v.
Gonzales, supra. Examples ofsuch severity include when the initial illegal stop is particularly lengthy, or
where there is a show or use offorce.ld. at236. As such factors were not present in the instant case, the
seizure will not be found to have been severe.

The second basis for suppression is whether the stop was based upon race or some other grossly
improper consider\ltion.ld. at 235. In Almeida-Amaral, the Court noted that in GQnzalez-Rivera v. INS,
supra, the border patrol agent admitted in his testimony that race formed a basis for the stop, whereas
Almeida-Amaral offered "nothing other than his own inhlition to show that race played a pali in the
alTesting officer's decision." Almeida-Amaral at 237.

In the instant case, Agent Parrish denied that the respondent's Middle Eastern appearance fOITned
a basis for questioning him, adding that he does not practice racial profiling. However, the agent's denial
does not end the inqUiry. Unlike Almeida-Amaral, in which no fact finding had taken place, this Court has
he:).rd detailed testimony from both alTcsting BCP agent (telephonically) and from the respondent, in
person. For the reasons stated above, the Court has found the respondent's testimony to be entirely
credible. The respondent testified, from his own eye-witness account, that he was one of40 people from

8
his bus who entered an already crowded bus terminal, filled with African-American, Caucasian and Latino
individuals, who were carrying on conversations in both English and Spanish. The respondent witnessed
the two BCP agents as they walked past some 40 individuals in the bus tenninal of varying ethnicities
without questioning a singleone. Instead, they made their way directly to the respondent, the one person
in the room of Middle Eastern appearance. The·responden! was seated, and doing nothing to draw
attention to himself.

The BCP agent was made aware of the issue during cross-examination, and by the Court's
question. Other than to deny that he practiced racial profiling, the agent was unable to provide any
alternative reason for singling out the respondent. The agent admitted that he had no basis whatsoever to
suspect the respondent of being an illegal alien or of having committed a crime.

Considering the totality of the circumstances, this Court can reach no conclusion other than to find
that the respondent's .Middle Eastern appearance fonned the basis for the violative seizure. The violation
will therefore be found to have been egregious under the holding in Almeida-Amaral, supra. As such, the
challenged evidence will be suppressed,

The Court further finds that a separate basis for suppression exists based upon theDepartment' s
violation of its own regUlation (8 C,F.R. §2S7.8(b)(2». TIle test set out by the Board under this standard
is (I) whether the regulation in question serves a purpose ofbenetlno the alien; and (2) whether the
violation prejudiced the interests of the alien which were protected by the regulation. MatterofGarcta-
Flores, 17 I&N Dec. 325 (BIA 1980). The regulation in question clearly serves a purpose ofbenefit to the
respondent, i.e. to protect him from detention in the absence of reason able suspicion. Furthertl!ore, the
violation prejudiced the respondent's interests which were protected by the regulation. The improper
detention coerced the respondent into providing inforn1ation in answer to the agents' questioning which led
to the respondent's arrest and his placement in these removal proceedings.

garcia-Flores creates a basis for suppression separate from the Constitutional arguments discussed
above. As such, the Board in Garcia-Flores did not create a requirement thatthe violation be egregious;
it simple showing ofprejudice to the alien will suffice. As such showing has been made in the instant case,
suppression is wan·anted under Garcia-Flores.

In the absence ofthe suppressed evidence, the Department has proffered no independent evidence
sufficient to sustain the charge ofremovabiIity. As such burden has not been met, the proceedings will be
terminated. Accordingly, the following order will be entered:

It is HEREBY ORDERED that these proceedings be, and hereby are, TERMINATED.

Dated: Ocfd1wv 3; JOt) 1.

·i;A~~0J
HELEN SICHEL