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Yoc-Us v. Atty. Gen.
"The facts alleged by Petitioners, if supported by evidence, could support the conclusion that the illegal extension of the stop was solely “based on race or perceived ethnicity.” Oliva-Ramos, 694 F.3d at 279. Other facts alleged by Petitioners, if true, may also add to the “egregiousness” calculus. See id. at 279 (instructing courts to consider the totality of the circumstances and explaining that the list of enumerated guiding factors is non-exhaustive). Petitioners aver that they were refused water and food and were not allowed to use the bathroom or turn on the van’s air conditioning while they were detained by Macke. Depending on the actual evidence adduced, these facts could be considered evidence of coercion or use of force as part of the totality of the circumstances test. Because Petitioners have identified a possible egregious Fourth Amendment violation, we conclude that the IJ erred in not granting their motion for a hearing to provide them with an opportunity to put forth evidence in support of their claim. However, we take no position as to the merits of that claim. Instead, we merely conclude that Petitioners should have been allowed to present evidence to support their argument that the misconduct in this case is egregious and warrants suppression. Therefore, we will remand to the BIA to remand to the IJ for an evidentiary hearing."
[Hats off to Joanna J. Cline, (Argued), Anthony C. Vale and Andrew R. Rogoff of Pepper Hamilton!]