In an unpublished decision from November 2014, the BIA remanded a Motion to Suppress Evidence, vacating the immigration judge’s determination that the respondent did not establish a prima facie case for suppression. In Jose Espana, A088 745 137 (BIA Nov. 25, 2014), the BIA further orders that on remand the respondent be afforded the opportunity to cross-examine any witnesses presented by DHS. The BIA also states that the immigration judge should consider the respondent’s request for the taking of depositions and the issuance of a subpoena for the production of documents.

In this case ICE agents entered the home of the respondent without a warrant (or consent) at 6:00AM and broke down his bedroom door, using physical force to arrest the respondent and question him. The immigration judge, David W. Crossland, sitting in Baltimore, Maryland, found that while these allegations if true, would be a violation of the Fourth Amendment, it was not an egregious violation warranting suppression because ICE agents acted in a “generally peaceful manner.”

The BIA disagreed and state in their decision, “we conclude that the statements in the respondent's affidavit, if accepted as true, establish that evidence which he seeks to suppress was obtained as the result of an egregious Fourth Amendment violation.” The BIA further explains:

We conclude that the foregoing factual allegations present a prima facie case that the ICE agents did not conduct their operation in a "generally peaceful" or non-threatening manner Rather, the respondent's account presents a scenario in which ICE agents forcefully entered his home at an early morning hour and pursued him into his bathroom, where he was not fully clothed. Moreover, based on the respondent's assertions, ICE agents used physical force both in arresting him and upon questioning him. Also, of significance to our inquiry is the respondent's assertion that, after he was arrested, he was taken from his home and forced to leave behind his young son, without knowing if the child would be in the care of a responsible adult. Based on the totality of the circumstances set forth in the respondent's affidavit, we conclude that the asserted Fourth Amendment violation (if proven) rises to the level of an egregious violation sufficient to support a claim for the suppression of evidence. See, e.g., Rochin v. California, 342 U.S. 165, 172-73 (1952) (indicating that "brutal conduct," which "shocks the conscience" and "offend[s] the community's sense of fair play and decency," constitutes an egregious constitutional violation); see also INS v. Lopez-Mendoza, supra, at 1051 (citing Rochin v. California, supra.); Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 20 13).

This is an important case for protecting Fourth Amendment rights. Immigration judges are almost never willing to entertain motions to suppress and we need more case law to establish that ICE is not above the law and has to operate within the confines of the Constitution. You can read more at NYImmigration.org.

This case published by the Immigrant & Refugee Appellate Center, LLC.