Wake Forest Law Review
14Oct

Fourth Amendment Protections Weakened in Deportation Proceedings

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By Eric Jones

On June 16, 2015, the Fourth Circuit issued a published opinion in the civil removal case Yanez-Marquez v. Lynch.  Maria Yanez-Marquez (Yanez) was petitioning to the Fourth Circuit for review of a Board of Immigration Appeals (BIA) decision dismissing her appeal from an order for her removal from the United States.  The Circuit Court held that the violations of Yanez’s Fourth Amendment rights were not egregious, and thus denied her petition for review.

 

The Execution of the Search Warrant

In June of 2008, agents from Immigration and Customs Enforcement (ICE) were granted a search warrant for 402 Harbor Drive, Annapolis, Maryland, because it was suspected that the landlord was harboring illegal aliens.  The warrant was to be executed between 6:00 a.m. and 10:00 p.m., and described the residence as a “single-family home.”  The warrant was broad and authorized agents to seize “illegal aliens, travel documents, financial records, and photographs of harbored aliens.”  At approximately 5:00 a.m. on June 30, ICE agents knocked on the door of the residence and entered to begin the search.  According to Yanez, the agents burst into the bedroom where she and her partner were sleeping, and pointed guns at them while demanding that they “don’t move” in both English and Spanish.  Upon being informed that Yanez was pregnant, the agents called a female agent to assist and reassure her.  Yanez was never handcuffed or led outside of the dwelling, but was questioned for 5-10 minutes about her identity.  As a result of the search, the agents arrested Yanez’s partner, and had her sign several forms indicating that Yanez had been illegally present in the United States since April of 2007.  The agents also seized Yanez’s pay stubs, tax returns, and photo albums as they left at 9:15 a.m.  The ICE contested Yanez’s statements regarding the timing of the search as well as the force used during the search.

 

The Removal Proceedings

Yanez was issued a notice to appear before an Immigration Judge (IJ) for removal proceedings.  On February 10, 2010, the Department of Homeland Security (DHS) filed a submission of intended evidence, including the forms Yanez signed during the search, the warrant itself, and the affidavit supporting the warrant.  Yanez filed a motion to suppress the evidence, arguing that during the search, the agents “egregiously violated” her Fourth Amendment rights.  The IJ found that, accepting Yanez’s claims as true, her rights had not been “egregiously violated.”  Although the execution of a search warrant prior to the time it was granted would constitute a violation of Yanez’s Fourth Amendment rights, the IJ reasoned that being early by a single hour “does not amount to conduct that ‘shocks the conscience,’” and thus was not an egregious violation.  As to the force used, the IJ found that Yanez had made no showing of excessive force, noting that agents executing a search warrant are reasonably cautious about dangerous situations.  The IJ found that the agents had acted reasonably, had not brandished their guns for longer than necessary to assure their safety, and had gotten a female agent to aid and comfort Yanez as soon as was reasonable.  For these reasons, the IJ denied the motion to suppress the evidence.  On December 13, 2010, the IJ found that the DHS had satisfied their burden, and ordered that Yanez be removed from the United States and returned to El Salvador.

On appeal to the BIA, the BIA held that the exclusionary rule, which operates to exclude evidence obtained in violation of the defendant’s Fourth Amendment rights, does not apply in civil removal proceedings unless the violations were egregious.  The BIA then, relying on the reasoning of the IJ, held that the violations had not been egregious, and thus affirmed the IJ’s order.

 

The Applicability of the Fourth Amendment in Civil Removal Cases in the Fourth Circuit

Initially, the Fourth Circuit noted that the question of the applicability of the Fourth Amendment exclusionary principle was a matter of first impression for the Circuit.  The Court began by analyzing the Supreme Court of the United States’ ruling in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).  In Lopez-Mendoza, the Supreme Court held that the ordinary Fourth Amendment exclusion, which barred all evidence obtained through any violation of the Fourth Amendment, was inapplicable to civil removal proceedings because the costs of exclusionary principle, including dramatically increased complexity to the streamlined process of removal, outweighed the benefits of the exclusionary principle.  Additionally, because civil removal proceedings are not criminal and do not punish but merely prevent continued illegal activity, the Court reasoned that the Fourth Amendment protections were not as critical.  Four Justices in Lopez-Mendoza vigorously dissented, and the majority opinion opined in dicta that “egregious violations” and “widespread” violations by officers may nevertheless render the exclusionary principle applicable in some instances.

In this case, the Fourth Circuit held that the exclusionary principle must apply to all egregious violations of the Fourth Amendment because “[t]o hold otherwise would give no effect to the language used by the Supreme Court in Lopez–Mendoza expressing concern over fundamentally unfair methods of obtaining evidence.”  The Circuit Court further held that refusing to apply the exclusion “would ignore the fact that eight justices in Lopez–Mendoza seem to have agreed that the exclusionary rule applies in removal proceedings in some form.”  Thus, in the Fourth Circuit, an petitioner in a civil removal case must show not only that her Fourth Amendment rights were violated, but also that those violations were “egregious.”

 

The Standard for “Egregiousness” of a Fourth Amendment Violation

The Lopez-Mendoza Court stated “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained” might be reason to apply the exclusion. Despite the use of “and” by the Supreme Court, the Fourth Circuit held that a petitioner can succeed if she can show either (1) egregious violation or (2) a violation that undermines the probative value of the evidence.  To hold otherwise, the Circuit explained, would dramatically reduce the application of the rule because nearly all evidence obtained through egregious violations is physical evidence, which has the same probative value regardless of the manner of acquisition.  Examples given by the Circuit of egregious violations included “a stop based on Hispanic appearance alone,” “repeatedly ignor[ing a] detainee’s request for counsel,” and “a nighttime warrantless entry into the aliens’ residence.”

The Fourth Circuit rejected the Ninth Circuit’s standard for egregiousness, which focuses on the “bad faith” of the agents, and embraced the “totality of the circumstances” test used by the Second, Third, and Eighth Circuits.

 

Yanez’s Alleged Fourth Amendment Violations

Yanez’s first allegation of egregious violation of her Fourth Amendment rights was that the warrant listed her residence as a “single-family home,” when it was in fact a multi-unit dwelling.  The Fourth Circuit explained that the warrant is sufficiently tailored when an agent executing it can “reasonably ascertain and identify the intended place to be searched.”  In holding that the warrant used to search Yanez’s home was adequate, the Circuit emphasized that the premises had been under ICE surveillance and agents had no reason to believe multiple families dwelled there, it was a small single-story home, and the premises had just one mailbox.  Thus, because the outward appearance is reasonably identified by a description of a “single-family home,” the Fourth Circuit rejected Yanez’s first argument.

Yanez next argued that, upon entry, the agents should have known it was a multi-family dwelling because “the bedroom door was locked,” which transforms it into a separate dwelling.  However, because it is not unusual for a bedroom door to be locked and there was no other indication in the home that it was a multi-unit dwelling, the Circuit held that the ICE agents had not made any mistake in proceeding with the warrant, and even if they had, it was an innocent and reasonable mistake.

Yanez’s final argument was that entering the home at 5:00 a.m. constituted a “nighttime search,” which fell outside of the warrant and implicates higher scrutiny because of the heightened intrusion.  The Fourth Circuit agreed that because a daytime search is defined as between 6:00 a.m. and 10:00 p.m., the search of Yanez’s residence was by definition a nighttime search.  The Fourth Circuit went on to hold that nighttime execution of a daytime warrant is a violation of the Fourth Amendment, absent consent or exigent circumstances.  Thus, because there was no consent given by either Yanez or the judge who issued the warrant, nor were there any additional facts which may have constituted exigent circumstances justifying a nighttime search, the Fourth Circuit held that the ICE had violated Yanez’s Fourth Amendment rights by executing the search.  However, when considering the totality of the circumstances, the Circuit held that this violation was not egregious.

Facts to support a finding of egregiousness included the fact that it was a nighttime search and the fact that the search was of Yanez’s home, where her privacy interests are strong.  Supporting the non-egregiousness of the search included the fact that no ICE agents threatened, coerced, or physically abused Yanez, nor did they offer or promise her anything in exchange for cooperation.  Additionally, Yanez was not handcuffed, nor was she removed from the home.  Furthermore, there was no evidence of diminished capacity, the questioning was not particularly lengthy, and there is no evidence that the agents were motivated by racial considerations.  Finally, the Circuit explained that presence of a valid search warrant for the premises reduces the harm of the intrusion, and the agents executing the warrant did not use force beyond that necessary to secure their safety.  The Fourth Circuit thus held that the nighttime search, while a violation, was nevertheless not an egregious violation of Yanez’s Fourth Amendment Rights.

 

The Fourth Circuit Denied Yanez’s Petition for Review

Because the alleged violations of Yanez’s Fourth Amendment rights were all either not violations at all or not egregious, the Fourth Circuit denied Yanez’s petition for review of the IJ’s order for her removal from the United States.

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3Mar

Nonpermanent Residents who are Convicted for Illegal Entry and Serve the Maximum Sentence of 180 Days are Barred from Showing “Good Moral Character” Under § 1101(f)

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By Katharine Yale

Today in Tiscareno-Garcia v. Holder, a published civil case, the Fourth Circuit denied in part, and dismissed in part Rafael Tiscareno-Garcia’s (“Plaintiff”) petition for review of an order of the Board of Immigration Appeals (“BIA”).

Background Leading up to Removal Proceedings and Procedural History

Plaintiff is a Mexican national who was apprehended three times in less than two years for his illegal presence in the United States. Shortly after his last arrest, Plaintiff illegally entered the US again and avoided apprehension for ten years while living in Raleigh, North Carolina.

In November 2010, Plaintiff was arrested during a workplace raid by the Immigration and Customs Enforcement (“ICE”) division of the Department of Homeland Security (“DHS”). Plaintiff was charged with illegal entry in violation of 8 U.S.C. § 1325(a). Illegal entry is a misdemeanor offense and the sentence for such an offense can be no more than six months. Plaintiff pled guilty. Before serving 181 days in prison, DHS served Plaintiff with a Notice to Appear (“NTA”) stating that he was subject to removal. Once Plaintiff was released from prison, DHS began the removal proceedings.

First, the proceedings went before an Immigration Judge (“IJ”). Plaintiff conceded that he was subject to removal, but argued that removal would cause a hardship to his citizen children and that for the ten years he had been living in the US, he was a law-abiding citizen. The government countered that because Plaintiff was incarcerated for 181 days, he was statutorily barred from establishing “good moral character” under § 1101(f)(7).

The IJ agreed with the government’s contention and BIA affirmed, thereby ruling that Plaintiff was ineligible for cancellation of removal. Plaintiff appealed from BIA’s decision.

Should a Conviction for Illegal Entry Preclude a Finding that an Alien is of Good Moral Character?

Plaintiff’s argument below and on appeal was that illegal entry should not be used to defeat a showing of “good moral character” under § 1101(f)(7). He argued that the court is not bound by the plain language of the statute because including illegal entry under § 1101(f)(7) produces an absurd result.

First, the court reiterated that it must first determine legislative intent, according to Chevron. If the intent of Congress is clear, then the court and the agency must uphold the clear and unambiguous intent of Congress. Plaintiff conceded that the statute was clear and unambiguous, but argued that it would not make sense for Congress to bar aliens from applying for cancellation based on an illegal entry conviction, when it was the illegal entry that rendered the alien removable in the first place. His argument was that almost all nonpermanent residents who apply for cancellation of removal could be charged and convicted of illegal entry, and that therefore the relief under § 1229b(b) would be illusory.

The Fourth Circuit recognized that there are “exceptionally rare” cases when the reading of the plain language of the statute would produce an absurd result at odds with congressional intent and that would “shock the general moral or common sense.” However, the court also recognized that it is “more than a little hesitant” to go against what Congress expressed in a clearly written statute.

Nonpermanent Residents who are Convicted for Illegal Entry and Serve the Maximum Sentence of 180 Days are Barred from Showing “Good Moral Character” Under § 1101(f)

Here, the court found that Plaintiff fell short of demonstrating a truly absurd result. The court concluded that the statutory scheme in § 1229b(b) and § 1101(f) was reasonable in providing the benefit of cancellation of removal to some nonpermanent residents and not to others.   The statute does not provide relief to those nonpermanent residents who conduct themselves in a way that is “antithetical to ‘good moral character,’” or those who spend more than 180 days in jail. Plaintiff fell into the latter category.

The court went on to conclude that it was sensible for Congress to use the length of incarceration “as a proxy for seriousness.” Further, not all nonpermanent residents enter the US illegally as Plaintiff contended. Some nonpermanent residents may be lawfully admitted, but later violate the terms of their visas. Others may be convicted of illegal entry, but do not serve the maximum sentence of 180 days that would preclude them from cancellation of removal.

Under the standard articulated in Sigmon Coal, the court only had to find that there were plausible reasons for Congress to intend the result compelled by the statute. The court held that the reasons stated above were plausible reasons for Congress to exclude relief to those nonpermanent aliens who serve six months in jail for an illegal entry conviction.

If a Conviction for Illegal Entry Precludes a Finding that an Alien is of Good Moral Character, when does the Required Ten Year Showing End?

There are two showings that a plaintiff must make to show eligibility for cancellation of removal under 8 U.S.C. § 1229b(b)(1): that he or she has been physically present in the US for at least ten years; and that he or she has been a person of good moral character during the ten year period.   Here, the Plaintiff argued that the ten year period should end when the NTA is served. However, the BIA’s position is that the ten year period ends with the entry of a final administrative decision.

The Fourth Circuit found that it did not have jurisdiction to address this claim because Plaintiff did not raise this argument with the BIA.   The Fourth Circuit can only review final orders of removal and here, Plaintiff did not exhaust all administrative remedies with the agency. The court dismissed Plaintiff’s argument that he was not able to address the issue with BIA because his lawyer did not receive the NTA prior to the order of removal. Plaintiff could have raised the claim after his lawyer was instructed to show why Plaintiff was not ineligible for cancellation of removal, and therefore the government’s failure to provide a copy of the NTA to Plaintiff’s lawyer was not a barrier to exhausting all administrative remedies.

The Fourth Circuit denied in part and dismissed in part Plaintiff’s petition for review of BIA’s order.

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25Nov

Fourth Circuit Holds the District Courts Retain Jurisdiction to Issue Sanctions and Vacatur After Remand to State Court

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By Taylor Ey

Today, the Fourth Circuit issued its decision in a rehearing en banc in Barlow v. Colgate Palmolive Co.  Plaintiffs Barlow and Mosko brought separate actions in Maryland state court against Colgate Palmolive Company (“Colgate”) and other companies, asserting that defendants’ products had exposed them to asbestos.  Plaintiffs contended that Colgate’s “Cashmere Bouquet” line of powder makeup products contained harmful levels of asbestos which contributed to the Plaintiffs’ health issues.  Colgate sought to remove the actions to federal court, and the Plaintiffs moved to remand the cases back to state court.  The district court remanded the Plaintiffs’ cases back to state court.  Later, Colgate moved in district court for relief from Plaintiffs’ purported misrepresentations.  Colgate sought relief under Rule 11 of the Federal Rules of Civil Procedure, asking that the district court sanction Plaintiffs’ attorneys by imposing monetary penalties, referring them to the state bar, and awarding other appropriate penalties as the court saw fit.  Colgate subsequently moved for relief under Rule 60(b)(3), seeking vacatur of the remand orders.   The district court denied both motions, and Colgate appealed.  The Fourth Circuit affirmed the district court’s decision, and later granted Colgate’s petition for rehearing en banc.  The question before the Fourth Circuit was whether a district court retains jurisdiction to issue sanctions under Federal Rule of Civil Procedure 11 and to vacate a remand order under Rule 60(b)(3) following remand of the case to state court?

The Federal Removal Statute Is Not Implicated in This Case

To answer this question, the Court examined how these rules interplay with 28 U.S.C. § 1447(d).  Generally under this statute, courts are precluded from reviewing a remand order if the case was remanded for lack of subject-matter jurisdiction or for defects in the removal procedure.  However, the Fourth Circuit has recognized three exceptions to the statute.  First, when the remand was not based on a determination either that the court lacked subject-matter jurisdiction or that there was a defect in the removal procedure.  Second, when the review is of a “collateral decision that is [logically and factually] severable from the remand order” and that had a “conclusive effect upon the parties’ substantive rights.”  Third, when the district court exceeds the scope of its authority in issuing a remand order.  However, the Fourth Circuit determined that none of these exceptions applied in this case, and § 1447(d) was not implicated in this case.  Section 1447(d) does not prohibit vacating an order as prohibited by Rule 60(b)(3); it merely prohibits reviewing an order.

The District Court Retains Jurisdiction to Impose Sanctions After Remanding an Action to State Court

The Fourth Circuit cited case law from the Supreme Court, from sister circuits, and from the Fourth Circuit to support its conclusion that a district court has jurisdiction to impose sanctions once it has remanded an action to state court.  Federal courts may consider collateral issues after an action is no longer pending and Rule 11 sanctions are “collateral to the merits.”  The judicial system has an interest in having rules of procedure obeyed, and this exists even after a court is without subject-matter jurisdiction.

The Fourth Circuit Adopted the Eleventh Circuit’s Analysis When Deciding Whether Colgate Sought Vacatur Based Upon a Collateral Consideration

In Aquamar S.A. v. Del Monte Fresh Produce N.A., Inc., 179 F.3d 1279 (11th Cir. 1999), the Eleventh Circuit recognized that vacatur of a remand order does not necessarily constitute a proscribed review of a remand decision.  Vacatur may still be available even when “review, reconsideration, or examination” is precluded.  Therefore, if a court vacates a remand order for “reasons that do not involve a reconsideration or examination of its merits,” then there is no review of the order, and a court is still in compliance with § 1447(d)’s requirements.

Because Colgate sought vacatur and not reconsideration, the Fourth Circuit was not required to reassess the facts presented to the district court at the time of removal.  Colgate attacked the manner by which Plaintiffs sought remand orders because Colgate only argued that Plaintiffs’ counsel misrepresented the actual facts in the case.

The District Court Should Have Considered Colgate’s Motions on the Merits

The district court believed that it lacked jurisdiction to give full consideration on the merits of the Rule 60(b)(3) motions, and perhaps the Rule 11 motions.  However, on remand, the Fourth Circuit directed the district court to make findings, supported by reasoning, on whether the Plaintiffs engaged in misconduct while in federal court and whether Rule 11 sanctions should be applied.  The Fourth Circuit explained that the district court is in the best position to consider Plaintiffs’ counsel’s conduct and other pertinent facts to make the fact-specific legal determinations required under Rule 11.  The Fourth Circuit instructed that the district court should do the same for the Rule 60(b)(3) motions.

The District Court’s Orders Are Reversed and the Cases Are Remanded for the District Court to Rule on Colgate’s Rule 11 and Rule 60(b)(3) Motions on Their Merits

The dissent warned if the Supreme Court granted certiorari, it would reject the majority’s interpretation of 28 U.S.C. § 1447(d) because vacatur contravenes the mandate of the statute.

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