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Cruz v. Barr

United States Court of Appeals, Ninth Circuit

June 13, 2019

Gregorio Perez Cruz, Petitioner,
William P. Barr, Attorney General, Respondent.

          Argued and Submitted September 5, 2018 San Francisco, California

          On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A095-748-837

          Ahilian T. Arulanantham (argued), Sameer Ahmed, ACLU of Southern California, Los Angeles, California; Noemi G. Ramirez, Los Angeles, California, for Petitioner.

          Walter Bocchini (argued), Trial Attorney, Linda S. Wernery, Assistant Director, Office of Immigration Litigation; Chad A. Readler, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C., for Respondent.

          Kristin Macleod-Ball, Melissa Crow, American Immigration Council, Washington, D.C.; Matthew E. Price, Jenner & Block LLP, Washington, D.C., for Amicus Curiae American Immigration Council.

          Before: Marsha S. Berzon and Michelle T. Friedland, Circuit Judges, and Daniel R. Dominguez, [*] District Judge.

         SUMMARY [**]


         Granting Gregorio Perez Cruz's petition for review of a decision of the Board of Immigration Appeals, the panel held that Immigration and Customs Enforcement (ICE) agents were not permitted to carry out preplanned mass detentions, interrogations, and arrests at a factory, without individualized reasonable suspicion, and reversed and remanded to the BIA with instructions to dismiss Perez Cruz's removal proceedings without prejudice.

         During the execution of a search warrant for employment-related documents located at the factory where Perez Cruz worked, he was detained, interrogated, and arrested for immigration violations, along with approximately 130 other workers. He was subsequently placed in removal proceeding and charged with entry without inspection. Based on statements he provided during his detention, ICE prepared a Form I-213, alleging that Perez Cruz had admitted that he was brought illegally into the United States as a child. The government also produced Perez Cruz's birth certificate based on statements he provided in connection with the factory raid. Perez Cruz moved to terminate the proceedings or, in the alternative, suppress evidence, but the BIA concluded that his detention and interrogation violated neither the agency's regulation nor the Fourth Amendment.

         The panel first rejected the government's contention that, even if Perez Cruz were otherwise entitled to suppression, the critical evidence in question constituted evidence only of "identity" and so was not subject to suppression under INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). The panel concluded that this argument was flatly contradicted by Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008), which held that evidence pertaining to alienage is subject to suppression, and expressly instructed that, however broadly identity evidence reaches, it does not include evidence pertaining to alienage. Concluding that Perez Cruz's statements regarding his birthplace, and his birth certificate derived from those statements, constituted evidence of alienage-not identity-the panel rejected the government's argument that the evidence was not suppressible.

         The panel next rejected the government's contention that Perez Cruz's detention was permitted by Michigan v. Summers, 452 U.S. 692 (1981), which held that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.

         The panel held that Summers' categorical authority to detain incident to the execution of a search warrant does not extend to a preexisting plan whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion. In concluding that the purpose behind the agents' conduct was relevant here, the panel explained that the purpose behind a search or seizure is often relevant when suspicionless intrusions pursuant to a general scheme-such as inventory and administrative searches-are at issue. The panel also explained that there is no meaningful difference between the categorical authority to detain without reasonable suspicion under Summers and the suspicionless intrusions for which the Supreme Court has held that a valid purpose is a prerequisite.

         The panel further observed that, in the context of determining whether an administrative search is invalid due to an impermissible purpose, the court asks whether the officer would have made the stop in the absence of the impermissible purpose. The panel concluded that Perez Cruz had satisfied this burden, explaining that ICE planning documents showed that the central purpose of the raid was not to find documents but to arrest undocumented workers.

         Accordingly, the panel concluded that Perez Cruz's seizure was not a permissible Summers detention and that the agents therefore violated 8 C.F.R. § 287.8(b)(2), which requires an immigration officer to have "reasonable suspicion, based on specific articulable facts, that a person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States" in order to briefly detain the person for questioning. Noting that prejudice may be presumed where-as here-compliance with a regulation is mandated by the Constitution, the panel presumed prejudice and concluded that Perez Cruz was entitled to suppression of the evidence in question.

         Finally, the panel concluded that the proceedings should be terminated without prejudice because the government had not offered any evidence of Perez Cruz's alienage beyond the Form I-213 and his birth certificate-fruits of the regulatory violation. The panel thus granted the petition for review and remanded to the BIA with instructions to dismiss his removal proceedings without prejudice.



         Immigration and Customs Enforcement (ICE) agents implemented a preconceived plan to "target" over 200 factory workers for detention and for interrogation as to their immigration status. The plan turned on obtaining and executing a search warrant for employment records at the factory. The record before us establishes that the search warrant for documents was executed "in order to" arrest undocumented workers present at the factory. Our central question is whether the ICE agents were permitted to carry out preplanned mass detentions, interrogations, and arrests at the factory, without individualized reasonable suspicion. We hold that they were not.



         In March 2006, ICE received an anonymous tip that Micro Solutions Enterprises (MSE), a Los Angeles-area manufacturer of printer cartridges, employed 200 to 300 undocumented immigrants. Nearly two years later, in February 2008, ICE agents sought and received a search warrant for employment-related documents located at the MSE factory in Van Nuys, California, and criminal complaints and arrest warrants for eight MSE employees.[1]

         Documents later obtained[2] revealed that ICE intended from the outset to turn the execution of these warrants into quite a different operation than a search for employment records. An internal memorandum issued before the operation stated that ICE "[would] be conducting a search warrant and expects to make 150-200 arrests." The memorandum also noted that ICE would have "2 buses and 5 vans" ready to transport potential detainees from the factory and "200 detention beds available to support the operation." Another planning document noted that ICE "anticipate[d] executing a federal criminal search warrant at MSE in order to administratively arrest as many as 100 unauthorized workers" (emphasis added).


         The operation took place as planned. Two days after the warrants were issued, approximately 100 armed and uniformed ICE agents streamed into the MSE factory. Blocking all visible exits, the agents ordered all workers to stop working and announced that no one was permitted to leave. The agents prohibited the workers from contacting anyone using their cellphones and allowed them to use the restroom only with an ICE escort. Among the workers detained was Gregorio Perez Cruz, a native and citizen of Mexico who entered the United States without inspection in 1994.

         The ICE agents then separated the men and women into different areas. The women were taken to the factory cafeteria, and the men were instructed to wait in a large hallway outside the cafeteria. After the men, including Perez Cruz, had gathered in the hallway, the agents ordered them to form two lines, one for individuals who possessed work authorization documents and another for those who lacked work authorization. Those who joined the line for men who had work authorization were escorted out of the hallway. Perez Cruz remained in the hallway but did not join either line.

         The ICE agents next ordered Perez Cruz and the other remaining men to stand against the wall. While Perez Cruz and the others were standing the agents conducted a pat down of each of them. The agent who frisked Perez Cruz took his wallet. The detainees were then handcuffed and questioned. While Perez Cruz was handcuffed, the agents asked him his name, his nationality, his date of birth, and the length of time he had worked at the factory. The agents then escorted Perez Cruz and the other detained male workers into another hallway, where they were questioned again. At some point during his detention, Perez Cruz provided statements to the agents indicating that he lacked lawful immigration status.

         Sometime later, the ICE agents began taking groups of workers to buses parked outside the factory. When it came time for Perez Cruz to board the bus, an agent photographed him and asked again for his name and country of origin. Perez Cruz, still handcuffed, was kept on the bus for over an hour before he was taken to a detention facility in downtown Los Angeles.

         When the bus arrived at the detention facility, ICE agents ordered Perez Cruz off the bus, searched him again, and removed his handcuffs. Perez Cruz was then held at the detention facility overnight. During the night, he was interrogated again. The next day, still detained, Perez Cruz was interrogated once more. At around 1:00 a.m. he was released. According to a later ICE press release, Perez Cruz was one of 130 workers at the MSE factory arrested for immigration violations.


         About a month later, Perez Cruz received a notice to appear for a removal hearing. The notice charged him as removable for entry without inspection. Based on the statements Perez Cruz provided during his detention, ICE agents prepared a Form I-213 alleging that Perez Cruz had admitted that he was brought illegally into the United States as a child. In addition to the Form I-213, the government produced Perez Cruz's birth certificate, obtained by an ICE agent in Mexico based on the statements Perez Cruz had provided in connection with the factory raid.

         Perez Cruz moved to terminate the proceedings or, in the alternative, suppress the evidence gathered, arguing that his arrest and interrogation violated binding federal regulations as well as the Fourth and Fifth Amendments. There was a brief hearing on Perez Cruz's motions, during which the government did not contest any of Perez Cruz's factual assertions. The immigration judge (IJ) granted Perez Cruz's motion to terminate, concluding that ICE's initial detention of Perez Cruz and failure to advise Perez Cruz of his rights "violated [ICE's] own regulation." Relying on Matter of Garcia-Flores, 17 I. & N. Dec. 325 (B.I.A. 1980), the IJ held that, because Perez Cruz was prejudiced by this regulatory violation, termination of his removal proceedings was warranted. Accordingly, the IJ did not reach Perez Cruz's constitutional claims.

         The government appealed, and the Board of Immigration Appeals (BIA) reversed. The BIA relied on Michigan v. Summers, 452 U.S. 692 (1981), which held valid the detention of residents of a home where a search warrant was being executed. Under Summers, the BIA concluded, Perez Cruz's detention and arrest violated neither the agency's regulations nor the Fourth Amendment. Because law enforcement officers are permitted to "secure the premises both for purposes of their own safety and in order to prevent the destruction of evidence" during the execution of a warrant, the BIA reasoned, the ICE agents did not violate the Fourth Amendment by "ordering employees to stop working, blocking exits, and asking employees to self-identify their immigration or citizenship status." The BIA also ...

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