and Submitted September 5, 2018 San Francisco, California
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.
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
Before: Marsha S. Berzon and Michelle T. Friedland, Circuit
Judges, and Daniel R. Dominguez, [*] District Judge.
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.
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.
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
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.
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
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.
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
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.
BERZON, CIRCUIT JUDGE:
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.
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.
later obtained 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).
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.
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.
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.
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.
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.
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.
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.
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 ...