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The U.S. Court of Appeals for the Ninth Circuit addressed the issue whether Immigration and Customs Enforcement (ICE) agents, under the pretext of a warranted search and absent “individualized reasonable suspicion,” may conduct pre-planned interrogations, arrests, and mass detentions at a factory. Gregorio P. Cruz petitioned to overturn the Board of Immigration Appeals ruling to sustain removal proceedings by seeking to either terminate the proceedings or suppress the evidence gathered, on the basis that ICE agents violated federal regulations, mainly 8 C.F.R. § 287.8(b)(2) along with the fourth and fifth amendments. Cruz, essentially an illegal alien and native of Mexico, admitted, during interrogation and detention, then he entered the U.S. illegally. The removal proceeding to be held against Cruz were to be substantiated by Form I-213 and a birth certificate compiled from the information Cruz provided to the officers.

The government claimed to have obtained a search warrant of the factory under the pretense of searching for employment documents. The panel held upon review of the ICE agents behavior during the execution of the warrant such as extensive attempts to confine the workers rather than search for documents, the presence of memos stating the purpose of the search prior to the factory raid, and the extensive preparation of ICE agents in anticipation of arresting and detaining illegal immigrants suggests the agents used the search for an improper purpose.

First, the panel held that Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008) directly contradicts the government’s argument based upon INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), that even if the exclusionary rule were to apply, identification evidence, the Form-213, and the birth certificate, cannot be suppressed. The panel held the evidence constituted evidence of alienage, not identity, and evidence of alienage obtained through substantial violations of the fourth amendment are suppressible. Also, the panel reasoned, based on Lopez-Mendoza, that there is a discernible distinction between identity and alienage. If there was no difference, then the government would not have needed to make their argument against suppression.

Second, the panel held it was irrelevant to determine whether ICE agent’s detention of Cruz violated the fourth amendment because the controlling federal regulations are just as strict as the fourth amendment. The panel further claimed that § 287.8(b)(2) was enacted to limit the immigration official’s ability to interrogate and detain suspects.

Third, the panel rejected the government’s position that Cruz’s detention was valid and justified by Michigan v. Summers, 452 U.S. 692 (1981). Although, a search based upon probable cause allows officials to reasonably detain persons on the premises throughout the search despite the officer’s subjective intent. The panel reasoned when probable cause is absent, subjective intent must be considered as with administrative and inventory searches where the official’s purpose must be procedural and not investigatory. Further, under Summers the panel held that there is “no meaningful difference between categorical authority to detain without reasonable suspicion . . . and suspicionless intrusions.”

Moreover, the panel held the ICE agent’s subjective intent does not in itself invalidate an administrative search; therefore, Cruz must and has proven that the ICE agents would not have acted in the absence of an improper purpose as based on United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017).

Further, Cruz’s detention is not applicable under Summers because it does permit purposeful and compulsory questioning following a person’s refusal to respond. The panel reasoned that Cruz declined to respond when he refused to form a line with the other factory workers or answer questions; thus, ICE agents repeated questioning and subsequent detention of Cruz was not valid. The government’s lack of evidence to support their search for employment-related documents rendered their seizure of Cruz as impermissible.

Last, Cruz need not prove prejudice for the controlling violations. Prejudice may be presumed when compliance with a regulation conforms with the Constitution.

In conclusion, the Panel granted Cruz’s suppression of evidence and remanded the case with instructions that the proceedings be terminated without prejudice.

Miami Immigration Lawyer Steven A. Goldstein

This article was written at the direction of Miami Immigration Lawyer, Steven A. Goldstein. Mr. Goldstein was employed as an attorney by the Immigration and Naturalization Service and was a prosecutor for the Office of Chief Counsel, Immigration and Customs Enforcement (ICE).  Aside from Miami, Mr. Goldstein also serves as a New York Immigration Lawyer, West Palm Beach Immigration Lawyer, and Orlando Immigration Lawyer.