Immigration Law

CA9 on Egregious 4th Amendment Violation: Sanchez II

Sanchez v. Sessions, Sept. 19, 2018 - "As Judge Pregerson poignantly described in our prior opinion: “This case is about Luis Sanchez, a small boat owner, who took some friends on a fishing trip within United States territorial waters, and ended up in removal proceedings before an immigration judge (“IJ”) under section 240 of the Immigration and Nationality Act, 8 U.S.C. § 1229a.” Sanchez v. Sessions, 870 F.3d 901, 904 (9th Cir. 2017), withdrawn, 895 F.3d 1101 (9th Cir. 2018). ... Sanchez was eventually taken into custody by CBP and placed in removal proceedings, where he unsuccessfully sought to suppress the Government’s evidence of both his alienage and his entry into the United States without inspection as the products of Fourth Amendment and regulatory violations. Sanchez petitions for review of the agency’s decision to admit the Government’s evidence. We grant the petition and conclude that Sanchez has made a prima facie showing that he was seized solely on the basis of his Latino appearance, which constitutes a particularly egregious regulatory violation. We remand for further proceedings before the IJ so that the Government may rebut Sanchez’s prima facie showing. We hold that the agency may consider on remand after the Government’s rebuttal whether the Coast Guard officers violated 8 C.F.R. § 287.8(b)(2) and if so, whether the violation was egregious and therefore warrants terminating Sanchez’s removal proceedings without prejudice. ... [W]e agree with Sanchez that it appears he was detained solely on the basis of his race. The Government has yet to offer specific and articulable facts that would support the Coast Guard officers’ decision to detain Sanchez on the basis of reasonable suspicion that he was unlawfully present in this country or otherwise engaged in illegal activity. There is no evidence, for instance, that Sanchez’s boat contained contraband of any kind or that he informed the Coast Guard officers before his detention that he had entered the United States without inspection two decades ago. Because race and ethnicity are never grounds for reasonable suspicion, we conclude that Sanchez has made a prima facie showing that the Coast Guard officers who detained him violated 8 C.F.R. § 287.8(b)(2). ... We emphasize that race and ethnicity alone can never serve as the basis for reasonable suspicion. The violation alleged by Sanchez here is egregious both for its grotesque nature and its patent unlawfulness. We therefore conclude that Sanchez has made a prima facie showing of an egregious violation of 8 C.F.R. § 287.8(b)(2)."

[Hats off, again, to John Wolfgang Gehart (argued), Lourdes Barrera Haley, Elena Yampolsky, and Carlos Vellanoweth, Vellanoweth & Gehart LLP!]