CA2: Egregious Fourth Amendment violation shown for invoking exclusionary rule in deportation proceeding

The appellants in this deportation proceeding were non-citizens here allegedly illegally, and DHS made an early morning warrantless raid of their house in Riverhead, NY. They made a prima facie case of an egregious Fourth Amendment violation enough to invoke the exclusionary rule in a deportation case, and the government elected not to counter it, apparently thinking it didn’t matter. Remanded to the BIA for further proceedings. Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 2013) [Admit it: how often has the non-citizen prevailed in these things? Haven’t seen one before because courts always find them “not egregious enough.”]:

We are persuaded that the facts as alleged by Sicajau portray an egregious Fourth Amendment violation requiring application of the exclusionary rule. We reject the IJ’s determination that Sicajau’s failure to personally observe the officers’ entry of the home rendered him incapable of establishing a prima facie case for suppression. As discussed, Sicajau’s affidavit and supporting testimony describing the circumstances of the raid were sufficient to carry this burden. Thus, assuming that ICE officers did not secure voluntary consent to enter the home – thereby effecting the basic Fourth Amendment violation that must underlie any egregious violation – certain aspects of the raid as alleged by Sicajau transform the constitutional transgression depicted here into an egregious Fourth Amendment violation.

Initially, we note that ICE officers purposely arrived at Sicajau’s home in the pre-dawn hours, presumably for the purpose of startling the sleeping residents, and, perhaps, with the aim of coercing confused consent. In addition, although the officers apparently secured their target, Cojon, they returned to the home without a warrant and without reasonable suspicion that additional illegal aliens remained behind the home’s locked doors. The Government failed to offer any evidence showing that its officers obtained voluntary consent to enter the home; the only record of the raid that we have comes from Sicajau and Ochoa. In the absence of evidence to the contrary, their statements support finding that ICE officers entered the home without consent in egregious violation of the Fourth Amendment.

We conclude that the best course is to remand for further proceedings to give the Government a meaningful opportunity to show that its officers obtained consent to enter Sicajau’s home. We note that although Government proof of voluntary consent to enter Sicajau’s home and bedroom would negate his Fourth Amendment claim, he has raised separate arguments regarding the admissibility of the evidence under the Fifth Amendment and DHS regulations. In light of our decision to remand, we decline to reach those arguments here. Finally, if, on remand, Sicajau’s motion to suppress evidence of alienage is granted, we direct the IJ and the BIA to our opinion issued in a companion case also decided today for guidance with respect to what types of “identity” evidence are subject to exclusion. See Jose Pretzantzin, et al. v. Holder, No. 11-2867-ag, ___ F.3d ___, ____ (2d Cir. 2013).

Conclusion

For the foregoing reasons, the decision of the Board of Immigration Appeals is hereby VACATED and REMANDED. On remand, the Government bears the burden of proof to show that ICE officers obtained voluntary consent to enter the home and Sicajau’s bedroom.

Pretzantzin v. Holder, 725 F.3d 161 (2d Cir. 2013) (raid in Jamaica, NY).