Order of Suppression - IJ Josephson (Seattle Imm. Ct., Feb. 8, 2008)

8/14/2019 Order of Suppression - IJ Josephson (Seattle Imm. Ct., Feb. 8, 2008)

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UNITED STATES DEPARTMENT OF JUSTICEEXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURTSEATTLE, WASHINGTON

In the Matter of: Date

File Numbers

February 8, 2008

Respondents IN REMOVAL PROCEEDINGSJudge Kenneth Josephson

CHARGE: Present in the United States without Being Admitted or ParoledAPPLICATIONS: Motion to Suppress, Motion to Terminate

ON BEHALF OF RESPONDENTDiana E. MollerNorthwest Immigration Rights Project

ON BEHALF OF DHSMarci EllsworthAssistant ChiefCounsel

ORDER OF THE IMMIGRATION mDGEThe respondents, a mother and her four daughters, filed a motion to suppress evidence of

their alienage contained in admissions they made to a deputy sheriffand a Customs and BorderPatrol ("CBP") officer. The admissions were later documented in an 1-213 form. Therespondents argue that without this evidence, the Department ofHomeland Security ("DHS" or"the Government") cannot meet its burden to prove alienage by clear, unequivocal, andconvincing evidence pursuant to Woodby v. INS, 385 U.S. 276 (1966). Accordingly, inconjunction with the motion to suppress, the respondents also filed a motion to terminate theproceedings. The DHS opposed both motions.


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I. Procedural BackgroundThe respondents were placed in removal proceedings by the filing of a separate Notices to

Appear ("NTAs") in August 2006. The NTAs individually charged each respondent as an alienpresent in the United States without admission or parole under section 212(a)(6)(A)(i) of theImmigration and Nationality Act. The cases were consolidated on February 27,2007. 1

At a first hearing on the consolidated cases, the respondents attacked the 1-213 form, andany other evidence of their admissions, alleging that the respondent daughters were the subjectsofa racially motivated traffic stop by a deputy sheriff in Whatcom C o u n t y ~ Washington. Giventhe respondents' accusations, 1 opined that 1was reluctant to give evidentia"ry weight to the 1-213without direct testimony from the deputy sheriff to explain the basis of the stop. Specifically,the 1:213 contained the unsubstantiated hearsay statements of the d e p u t y s ~ e r i f f a n d thereforerequired him to personally respond to the allegations. See Murphy v. INS, 54 F.3d 605,611 (9thCir. 1995). .

After the respondents submitted their motions and the DHS timely responded, I reiteratedmy position in a minute order dated August 24,2007. Relying on Salgado v. INS, 395 F.3d 1158(9th Cir. 2005), and the cases cited therein, I informed the parties that I would require testimonyfrom both the deputy sheriff and the CBP officer involved in the events in question. I noted that Iwould accept the their testimony via telephone for the sake of convenience. I set an evidentiaryhearing for January 2,2008 to provide ample time for the Government to secure the presence ofboth officers. C

Despite having had several months to notify the deputy sheriffand the CBP officer of thependency ofthe hearing, the Government failed to produce either at the evidentiary hearing. Thetrial attorney explained that they were unavailable to testify. She stated that she spoke to theCBP officer and made an offer ofproof that he had no independent recollection of the eventswithout the 1-213. She also affirmed that she called the deputy sheriffon the morning of thehearing and his voice mail indicated that he had been called to traffic duty. She further suggestedthat the deputy sheriffwould also be unable to testify without the assistance of the 1-213 form.She provided no other details regarding her efforts to obtain their testimony for the hearing.

Over the objection of the respondents, I proceeded with the testimonyof" andtwo of the respondent daughters. I also afforded the Governmentan opportunityfor cross-examination. The respondents answered questions relating to the initial stop by thedeputy sheriff and their subsequent apprehension and detention by CBP. However, therespondents invoked their Fifth Amendment right against self-incrimination in response toquestions posed by the Government regarding their alienage or current status in the UnitedStates.

II fully recognize my obligation in any consolidated case to consider each respondentindividually although there might be a generally similar factual background.

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II. Motion to SuppressThe crux of respondents' motion to suppress is based on a series of events beginning with

a traffic stop and culminating in their apprehension and detention by CBP. The respondentdaughters claim that they were initially stopped by a deputy sheriff in Ferndale, Washington.They argue that the only basis for the stop was their Hispanic appearance, even though the deputysheriff cited two of them for traffic infractions. The record indicates that respondent daughters,~ 7 received separate traffic citations. _ was cited for speeding and drivingwithout a license or permit. (Resp. Motion at 22,24). 2 he registered owner of the car, wascited for permitting an unauthorized driver to operate her vehicle. (Id at 26). and."testified that they did not believe that they were speeding when stopped by the deputy sheriff.

According to the 1-213, the deputy sheriffnotified CBP after the respondents admittedthat they were illegal aliens. A CBP officer was dispatched to the scene, where the respondentsadmitted that they were Mexican nationals and had no proofof their immigration status on theirpersons. The CBP officer apprehended the four respondent daughters and transported them toBlaine, Washington for additional questioning.

At that point, the respondents Claim that they made repeated and urgent requests to usethe restroom. These requests were denied until after they arrived inBlaine and again madeinculpatory admissions regarding their immigration status. The respondents assert that asidefrom already having been tainted by the illegitimate stop, the admissions made to CBP were theresult ofphysical duress and ultimately suppressible under the Fifth Amendment.

The Government has consistently argued that the respondents have failed to allegeegregious violations of their constitutional rights. In addition, it asserts that the initial stop waslawful and therefore, any inquiry into the respondents' immigration status by the deputy sheriffwas supported byprobable cause. Finally, the Government contends that even if the violationswere egregious, the respondents' identity is not subject to suppression.

Notwithstanding the extensive briefing of the issues by both sides, my decision squarelyrests on the Govemment's failure to make the officers available at the evidentiary hearing. Theallegations of egregious constitutional violations necessitated an evidentiary hearing to ascertainwhether exclusion of the 1-213, and any other evidence of the admissions, was warranted. SeeMatter ofBar.,cenas, 19 I&N Dec. 609, 611 (BIA 1988); Salgado v. INS, 395 F.3d 1158 (9th Cir.2005). In addition, the deputy sheriffs statements, which were incorporated into the 1-213, wereunsubstantiated hearsay, and in light of the factual dispute regarding the events in question, I feltthat testimony from the deputy sheriff and the CBP officer was needed.

The Government's weak explanation for the unavailability of the officers attests to thefact that it put forth almost no effort to obtain their testimony. Under Hernandez-Guadarrama v.Ashcroft, 394 F.3d 674, 681-683 (9th Cir. 200.5), unsubstantiated hearsay in a governmentdocument, such as an 1-213, should not be admitted where the Government has not made areasonable effort to secure the declarant at the hearing. Having had several months to contact the

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deputy sheriff, it would appear that he was for the first time attempted to be contacted on themorning of the hearing. The Government's failure to successfully communicate with the deputysheriffwithin the generous time frame I gave practically ensured his unavailability and deprivedthe respondents a reasonable opportunity to confront and cross-examine him as due processdemands. Moreover, the Government provided no excuse for the absence of the CBP officer andin any event, he appears to have no independent recollection of the events at issue. Applying thepertinent Ninth Circuit case law, I cannot rely on the 1-213.

I am not persuaded by the Government's contention that the traffic citations and paymentthereofconclusively prove that the initial stop was lawful. The Government's failure to securethe presence of the officers forecloses any argument regarding the legitimacy of the stop. Moreimportantly, any reliance on the citations and their payment is misplaced given that neitherdirectly responds to the allegation that the initial stop was racially motivated. Although I cannotconclude that the stop was per se unconstitutional, it is not unheard of for law enforcementofficers to cloak constitutional violations in perceivably valid applications of the law. See e.g.,us. v. Rodriguez, 976 F.2d 592, 594 (9th Cir. 1992) (cautioning that "we must be watchful formere rote citations of factors which were held, in some past situations, to have generatedreasonable suspicion..."). Furthermore, although the respondents indicated that they would havecontested the citations were they not detained by the Government, even innocent driversrecognize that it is often more convenient to pay a speeding ticket than to contest it.

Finally, I concur with the respondents to the extent that they have not moved to suppresstheir identity as the Government suggests, but rather that they have sought to exclude admissions. of their alienage. The rationale in US. v. Garcia-Beltran, 389 F.3d 864 (9th Cir. 2004)demonstrates that, under the law, there is a tangible difference between the identity or "body" ofa respondent and an admission by a respondent ofhis or her alienage. Based on this and theother foregoing reasons, I grant the respondents' motion to suppress.

III. Motion to TerminateHaving excluded the 1-213 form, the relevant question becomes whether the Government

can meet its preliminary burden to prove alienage by other independently obtained evidence. Inits opposition to the respondents' motion to terminate, the Government submitted Forms 1-352,Immigration Bond, displaying the alienage and manner of entryof" and _ the tworespondent daughters who were detained at the Northwest Detention Center in Tacoma as a resultof the initial traffic stop. Additionally, the Government has pointed my attention to an August28,2006 master calendar hearing in \ v h i c h . through her former counsel, admitted the factualaJIegations and conceded removability. The Government has also requested that I draw anadverse inference from the silence of the respondents to questions regarding their alienage.

First, I am disinclined to admit bond documentation as evidence establishing therespondents' alienage. Custody proceedings and removal proceedings are separate and apartfrom one another. See 8 C.F.R. 1003.l9(d). It would be exceedingly unfair to admit thesedocuments given the improbability that the respondents were notified that anything they said

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during custody proceedings could be used against them in subsequent removal proceedings.However, I find that the admissions and concessions that. made through her formerattorney during a master calendar hearing do serve as independent evidence o ~ l i e n a g e .Contrary to the respondents' argument that the pleadings were impermissibly made during a bondhearing, the transcript reflects t h a ~ a d e factual admissions and conceded removability

during a master calender hearing before the Immigration Judge. To be sure, after she pleaded tothe charges through her former at torney," withdrew her bond request. But, the hearing wasin the form ofa master calendar a n d ~ p e c i f i c a l l y made admissions in that context. As theGovernment aptly pointed out, the respondents have not argued ineffective assistance of counselby the former attorney. Consequently, I find that the factual admissions and the concession ofremovability made b ~ h r o u g h her former attorney are binding under Matter ofVelasquez,19 I&N Dec. 377, 382 (BIA 1986) (ruling that admissions and concessionsby an attorney aredeemed authorized by a client-respondent).Whereas I find independent evidence establishing_alienage by clear, unequivocal,

and convincing evidence, I reject the Government's request that I draw an adverse inference fromthe other respondents' refusal to answer questions regarding their alienage. As previously stated,proofof alienage is the Government's burden. In view of the Government's afore-mentionedfailure to address the infirmity of the 1-213, which was solid evidence of the respondents'alienage, I see no justice in shifting the burden to the respondents. Moreover, I am simplyunwilling to use_ admission ofher own alienage and removability against the rest of thefamily. Without other evidence, I cannot use their silence alone to infer alienage. Matter ofGuevara, 20 I&N Dec. 238 (BIA 1990) (holding that absent other evidence in the record, arespondent's silence does not constitute prima facie evidence ofhis or her alienage).

Thus, with the exception0_ I grant the respondents' motion to terminate forinsufficient evidence ofalienage. I further find t h a t ~ d m i t t e d the factual allegations andconceded removability as charged at a master calendar hearing onAugust 28, 2006. Because_ is ineligible for any form of relief, she is subject to removal from the United States.22 During the master calendar hearing on August 28, 2006, admitted that she entered thecountry in February 1997. She was served with a Notice to Appear on August 10,2006. Despiteindications from her former attorney that she may be eligible for cancellation of removal,.. has notmet the continuous physical presence requirement under INA 240A(b)( I). Accordingly, ~ o e s not

qualify for cancellation of removal.-5-


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ORDERSIT IS HEREBY ORDERED that the respondents' motion to suppress is GRANTED.IT IS FURTHER ORDERED that the respondents' motion to terminate is GRANTED inpart and DENIED in part.IT IS FURTHER ORDERED that the respondent, be removed fromthe United States to MEXICO on the c h ~ g e s contained in the Notice to Appear dated August 14,2006.3 '

February 8, 2008 k ~ ~ J : ! t ~Immigration Judge

3AIJ of the respondents have made it clear that if their motions are denied, theywill seek no basisof relief. In the alternative, assuming that the above legal analysis is reversed and in an effort toaccelerate what might be judicial review, I would in that circumstance order the remaining...familymembers removed to Mexico as well.

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Order of Suppression - IJ Josephson (Seattle Imm. Ct., Feb. 8, 2008)

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