11-2867-ag Jose Pretzantzin v. Holder 1 UNITED STATES COURT OF APPEALS 2 3 FOR THE SECOND CIRCUIT 4 5 6 7 August…

11-2867-ag
Jose Pretzantzin, et al. v. Holder
1
UNITED STATES COURT OF APPEALS 2
3
FOR THE SECOND CIRCUIT 4
5
6
7
August Term, 2012 8
9
(Argued: March 14, 2013 Decided: July 31, 2013) 10
11
Docket No. 11-2867-ag 12
13
14
JOSE MATIAS PRETZANTZIN, AKA JOSE M. PRETZANTZIN-YAX, 15
PACHECO PRETZANTZIN, AKA SANTOS RAMIRO PRETZANTZIN, PEDRO 16
ESTANISLADO PRETZANTZIN, PEDRO LEONARDO PACHECO LOPEZ, JUAN 17
MIGUEL PRETZANTLIN-YAX, AKA JUAN MIGUEL PRETZANTZIN-YAX, 18
19
Petitioners, 20
21
v. 22
23
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, 24
25
Respondent. *
26
27
28
29
Before: 30
W ESLEY , D RONEY , Circuit Judges, N ATHAN , District Judge. **
31
32
* The Clerk of Court is directed to amend the official
caption to conform to the listing of the parties stated above.
** The Honorable Alison J. Nathan, of the United States
District Court for the Southern District of New York, sitting by
designation.

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Petitioners appeal from the December 17, 2010 decision 1
of the Board of Immigration Appeals (the “BIA”) reversing 2
the Immigration Judge’s prior grant of Petitioners’ motion 3
to suppress evidence obtained in egregious violation of 4
Petitioners’ Fourth Amendment rights and terminate their 5
removal proceedings. The BIA determined that evidence of 6
Petitioners’ identities was not suppressible under the 7
Supreme Court’s decision in INS v. Lopez-Mendoza, 468 U.S. 8
1032 (1984), and that, in any event, the Government had 9
acquired independent evidence of alienage by obtaining 10
Petitioners’ birth certificates. Because we find that 11
Lopez-Mendoza confirmed an existing jurisdictional rule, 12
rather than announcing a new evidentiary rule, the BIA erred 13
in concluding that the Government had met its burden of 14
establishing that certain alienage-related evidence had been 15
obtained independent of any constitutional violation. The 16
Government having had the opportunity to show that the 17
alienage-related evidence was obtained from an independent 18
source, and having explicitly chosen not to do so, we VACATE 19
and REMAND the BIA’s decision with instructions to reach 20
only the issue of whether Government agents seized evidence 21
of alienage from Petitioners in the course of committing an 22
egregious Fourth Amendment violation. 23
VACATED AND REMANDED. 24
25
26
27
ANNE PILSBURY (Heather Y. Axford, on the brief), 28
Central American Legal Assistance, Brooklyn, 29
NY, for Petitioners. 30
31
MATTHEW GEORGE, Trial Attorney, Office of 32
Immigration Litigation, Civil Division (Stuart 33
F. Delery, Acting Assistant Attorney General, 34
Civil Division, Douglas E. Ginsburg, Assistant 35
Director, Office of Immigration Litigation, on 36
the brief), United States Department of 37
Justice, Washington, DC, for Respondent. 38
39
Elaine J. Goldenberg, Matthew E. Price, Jenner & 40
Block LLP, Washington, DC; Omar C. Jadwat, 41
American Civil Liberties Union Foundation, 42
Immigrants’ Rights Project, New York, NY, for 43
2

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Amicus Curiae American Civil Liberties Union 1
Foundation. 2
3
W ESLEY , Circuit Judge: 4
In the early morning hours of March 5, 2007, Petitioner 5
Pedro Estanislado Pretzantzin (“Estanislado Pretzantzin”) 6
awoke to a loud banging; he opened his third-floor bedroom 7
window to see a group of armed, uniformed officers at his 8
apartment building’s front door in Jamaica, New York. 1 The 9
officers were from the Department of Homeland Security 10
(“DHS”) and worked for Immigrations and Customs Enforcement 11
(“ICE”). Estanislado Pretzantzin shared the apartment with 12
members of his extended family, including Petitioners Jose 13
Matias Pretzantzin, Pacheco Pretzantzin, Pedro Pacheco-Lopez 14
(“Pacheco-Lopez”), and Juan Miguel Pretzantlin-Yax. 2
15
Through the open window, the officers informed Estanislado 16
Pretzantzin that they were “the police” and ordered him 17
18
1 The factual record in this case is somewhat sparse because
the Government declined to make an evidentiary proffer concerning
the circumstances of Petitioners’ arrests. The following facts
are taken from Petitioners’ testimony and supporting affidavits,
which the agency found credible.
2 Santiago Pretzantzin-Yax has since voluntarily left the
United States; he is not a petitioner for purposes of this
appeal.
3

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downstairs to open the door. Estanislado Pretzantzin 1
complied. 2
After confirming that he lived on the third floor, one 3
of the officers led Estanislado Pretzantzin back upstairs 4
and ordered him to allow the other officers inside. At no 5
point during the encounter did the officers explain their 6
presence, present a warrant, or request consent to enter the 7
apartment. Once inside, ICE officers rounded up the 8
remaining Petitioners, who were asleep in their beds, 9
assembled them in the living room, and demanded to see their 10
“papers.” It appears that only Pacheco-Lopez – the sole 11
Petitioner who had a passport – was able to comply with the 12
officers’ directive. The officers did not ask Estanislado 13
Pretzantzin whether he had legal status in the United States 14
before arresting him. 15
All Petitioners were handcuffed and transported to ICE 16
facilities at 26 Federal Plaza, in New York City, where they 17
were notified for the first time that they were in the 18
custody of immigration officials. ICE officers interviewed 19
Petitioners and told them to sign statements that were not 20
read to them in English (which Petitioners speak minimally 21
if at all); these statements were subsequently memorialized 22
4

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on Form I-213s (Record of Deportable/Inadmissible Alien). 1
Petitioners were released from custody later that afternoon 2
and served with Notices to Appear, charging them with 3
removability under Immigration and Nationality Act (“INA”) § 4
212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i), as natives and 5
citizens of Guatemala who had entered the United States 6
without inspection. 7
Following consolidation of their proceedings, 8
Petitioners appeared before Immigration Judge George T. Chew 9
(the “IJ”) and conceded that they were the individuals named 10
in the Notices to Appear, but denied the charges of 11
removability and moved to suppress the evidence against them 12
and terminate their proceedings. Petitioners argued that 13
they were entitled to the suppression of all statements and 14
evidence obtained as a consequence of the nighttime, 15
warrantless raid of their home under the Fourth and Fifth 16
Amendments. In opposition, the Government argued, inter 17
alia, that it possessed independent evidence of Petitioners’ 18
alienage. Specifically, the Government claimed that it had 19
obtained Petitioners’ Guatemalan birth certificates from the 20
United States Embassy in Guatemala using Petitioners’ names, 21
and that it also had Petitioner Pacheco-Lopez’s criminal 22
5

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history report, arrest record, and fingerprint card from a 1
1994 theft of services conviction for subway-turnstile 2
jumping. The arrest report listed Guatemala as Pacheco- 3
Lopez’s birthplace. 4
The Government ostensibly relied on the admission in 5
Petitioners’ motion to suppress (indicating that Petitioners 6
were related) and Pacheco-Lopez’s arrest records (confirming 7
that he was born in Guatemala) to target the United States 8
Embassy in Guatemala for the birth certificate request. In 9
connection with Petitioners’ birth certificates, the 10
Government proffered a Federal Express delivery record label 11
for a package sent from ICE’s facilities at 26 Federal Plaza 12
to the United States Embassy in Guatemala, but it did not 13
submit a copy of the actual birth certificate request or any 14
other evidence bearing on the package’s contents. Following 15
Petitioners’ testimony at a subsequent suppression hearing, 3
16
the IJ invited the Government to proffer a warrant, 17
statements from the officers, or any other evidence to 18
justify their intrusion into Petitioners’ home. The 19
3 Pacheco-Lopez and Estanislado Pretzantzin were the only
Petitioners to testify at the merits hearing. The IJ found their
testimony credible and declined to take additional testimony from
the remaining Petitioners, concluding that it would be
repetitive.
6

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Government, however, declined to do so and explicitly 1
disavowed any reliance on Petitioners’ Form I-213s, choosing 2
to rely instead on Petitioners’ birth certificates and 3
Pacheco-Lopez’s arrest records as the sole evidence of 4
alienage. 5
In June 2008, the IJ granted Petitioners’ motion to 6
suppress the Government’s evidence of alienage and terminate 7
the proceedings, finding that the nighttime, warrantless 8
entry into their home and resulting arrests constituted an 9
egregious violation of Petitioners’ Fourth and Fifth 10
Amendment rights. Having found Petitioners’ testimony and 11
supporting affidavits sufficient to establish a prima facie 12
case for suppression, the IJ reasoned that the Government’s 13
failure to offer any justification for the conduct of its 14
agents resolved the issue in Petitioners’ favor. The IJ 15
also rejected the Government’s contention that Petitioners’ 16
birth certificates and Pacheco-Lopez’s arrest records 17
constituted independent evidence of alienage, finding that 18
this evidence could only have been obtained through the use 19
of evidence illegally procured as a result of the raid of 20
Petitioners’ home, namely, Pacheco-Lopez’s passport and 21
Petitioners’ statements. 22
7

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The Government appealed. In a December 17, 2010 order, 1
the BIA vacated the IJ’s decision. In re Jose Matias 2
Pretzantizin, et al., Nos. A097 535 298/296/297/299/300/301 3
(B.I.A. Dec. 17, 2010). Relying on INS v. Lopez-Mendoza, 4
468 U.S. 1032 (1984), for the proposition that identity is 5
never suppressible as the fruit of an unlawful arrest, the 6
BIA found that it need not determine whether Petitioners 7
suffered an egregious violation of their constitutional 8
rights because their birth certificates and Pacheco-Lopez’s 9
arrest records were obtained after the Government had 10
determined their identities. The BIA explained that 11
Petitioners’ birth certificates were obtained from 12
Guatemalan authorities using Petitioners’ insuppressible 13
identities; the BIA offered no similar justification for the 14
independence of Pacheco-Lopez’s arrest records. Lastly, 15
although the Government had expressly declined to rely on 16
Petitioners’ Form I-213s before the IJ, the BIA found this 17
evidence admissible because Petitioners had not argued that 18
their statements were “untrue or unreliable.” In re 19
Pretzantizin, A097 535 298, at 2. 20
Petitioners were subsequently ordered removed to 21
Guatemala and have timely petitioned for review. 22
8

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1
Discussion4
2
“The general rule in a criminal proceeding is that 3
statements and other evidence obtained as a result of an 4
unlawful, warrantless arrest are suppressible if the link 5
between the evidence and the unlawful conduct is not too 6
attenuated.” Lopez-Mendoza, 468 U.S. at 1040-41 (citing 7
Wong Sun v. United States, 371 U.S. 471 (1963)). “[T]he 8
exclusionary sanction applies to any ‘fruits’ of a 9
constitutional violation – whether such evidence be 10
tangible, physical material actually seized in an illegal 11
search, items observed or words overheard in the course of 12
the unlawful activity, or confessions or statements of the 13
accused obtained during an illegal arrest and detention.” 14
United States v. Crews, 445 U.S. 463, 470 (1980) (internal 15
citations omitted). Outside of the criminal context, 16
however, the applicability of the exclusionary rule becomes 17
less certain. Lopez-Mendoza, 468 U.S. at 1041. 18
4 The standards of review here are neither contested nor
determinative. We review only the decision of the BIA reversing
the IJ’s grant of suppression and termination, see Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005), and review the
agency’s factual findings for substantial evidence and issues of
law de novo. See 8 U.S.C. § 1252(b)(4)(B); Almeida-Amaral v.
Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006).
9

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In Lopez-Mendoza, the Supreme Court held that a Fourth 1
Amendment violation does not, standing alone, justify the 2
suppression of evidence in the course of a civil deportation 3
proceeding, id. at 1050; this Court has since interpreted 4
Lopez-Mendoza to allow suppression following an egregious 5
violation, see Almeida-Amaral v. Gonzalez, 461 F.3d 231, 235 6
(2d Cir. 2006). Today, as discussed in a companion case 7
argued in tandem with the case at bar, Doroteo Sicajau 8
Cotzojay v. Holder, No. 11-4916-ag, – F.3d –, – (2d Cir. 9
2013), we confirm what the BIA and other courts have already 10
recognized: A nighttime, warrantless raid of a person’s 11
home by government officials may, and frequently will, 12
constitute an egregious violation of the Fourth Amendment 13
requiring the application of the exclusionary rule in a 14
civil deportation hearing. See Matter of Guevara-Mata, No. 15
A097 535 291 (B.I.A. June 14, 2011); 5 Oliva-Ramos v. Att. 16
Gen. of U.S., 694 F.3d 259, 279 (3d Cir. 2012). 17
In the instant case, the BIA did not reach the question 18
of whether there was an egregious violation of the Fourth 19
Amendment, but instead predicated its reversal of the IJ’s 20
5 Available at
http://66.147.244.126/~centrbq3/wp-content/uploads/2012/04/BIA-de
cision-Guevara-Mata.pdf.
10

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grant of suppression on a finding that Petitioners’ birth 1
certificates and Pacheco-Lopez’s arrest records were 2
independently obtained through the use of only their names. 3
To reach this result, the BIA relied on Lopez-Mendoza’s 4
statement that “[t]he ‘body’ or identity of a defendant or 5
respondent in a criminal or civil proceeding is never itself 6
suppressible as a fruit of an unlawful arrest,” 468 U.S. at 7
1039 (“Lopez-Mendoza’s identity statement”). The task then 8
is to discern the meaning of this statement that “has 9
bedeviled and divided our sister circuits.” United States 10
v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir. 2007). 6 For 11
the reasons that follow, we join the Fourth, Eighth, and 12
Tenth Circuits in finding that Lopez-Mendoza reaffirmed a 13
long-standing rule of personal jurisdiction; it did not 14
create an evidentiary rule insulating specific pieces of 15
identity-related evidence from suppression. 16
17
6 See Oscar-Torres, 507 F.3d at 228 (comparing United States
v. Olivares-Rangel, 458 F.3d 1104, 1106 (10th Cir. 2006)
(interpreting Lopez-Mendoza as merely reiterating long-standing
jurisdictional rule), and United States v. Guevara-Martinez, 262
F.3d 751, 754-55 (8th Cir. 2001) (same), with United States v.
Bowley, 435 F.3d 426, 430-31 (3d Cir. 2006) (interpreting Lopez-
Mendoza as barring suppression of evidence of identity), United
States v. Navarro-Diaz, 420 F.3d 581, 588 (6th Cir. 2005) (same),
and United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th
Cir. 1999) (same)).
11

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INS v. Lopez-Mendoza 1
The jurisdictional nature of Lopez-Mendoza’s identity 2
statement is evidenced by both the context in which it was 3
made and the authority upon which it relied. In Lopez- 4
Mendoza, the Supreme Court reviewed challenges in two civil 5
deportation proceedings, each of which were commenced 6
following unlawful arrests. 468 U.S. at 1034. In the first 7
proceeding, respondent Adan Lopez-Mendoza did not seek 8
suppression of any specific piece of evidence and, instead, 9
“objected only to the fact that he had been summoned to a 10
deportation hearing following an unlawful arrest.” Id. at 11
1040. The Supreme Court easily dispensed with Lopez- 12
Mendoza’s challenge to the validity of the proceedings 13
against him because “[t]he mere fact of an illegal arrest 14
has no bearing on a subsequent deportation proceeding.” Id. 15
(alteration in original and internal quotation marks 16
omitted). It was in this context that the Supreme Court 17
stated that “[t]he ‘body’ or identity of a defendant or 18
respondent in a criminal or civil proceeding is never itself 19
suppressible as a fruit of an unlawful arrest, even if it is 20
conceded that an unlawful arrest, search, or interrogation 21
occurred.” Id. at 1039 (citations omitted). 22
12

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In the second proceeding, respondent Elias Sandoval- 1
Sanchez moved to suppress his Form I-213 (Record of 2
Deportable/Inadmissible Alien), which memorialized 3
incriminating post-arrest statements relating to his 4
immigration status and place of birth. Id. at 1037-38, 5
1040; Lopez-Mendoza v. INS, 705 F.2d 1059, 1062 (9th Cir. 6
1983), rev’d, 468 U.S. 1032 (1984). The Court observed that 7
Sandoval-Sanchez had “a more substantial claim” because 8
“[h]e objected not to his compelled presence at a 9
deportation proceeding, but to evidence offered at that 10
proceeding.” 468 U.S. at 1040. Accordingly, the Court 11
considered whether the exclusionary rule should apply to 12
prohibit the Government from using illegally obtained 13
evidence of Sandoval-Sanchez’s alienage against him in 14
deportation proceedings. Id. at 1040-41. The Court 15
ultimately found the exclusionary rule inapplicable in 16
Sandoval-Sanchez’s case after weighing the likely social 17
benefits and costs pursuant to the framework established in 18
United States v. Janis, 428 U.S. 433 (1976). Lopez-Mendoza, 19
468 U.S. at 1050. 20
The Court’s differing treatment of Lopez-Mendoza’s 21
personal jurisdiction challenge and Sandoval-Sanchez’s 22
evidentiary challenge, and the corresponding omission of any 23
13

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identity-related considerations from the evaluation of the 1
latter claim, show that Lopez-Mendoza’s identity statement 2
merely confirmed the jurisdictional rule that an unlawful 3
arrest has no bearing on the validity of a subsequent 4
proceeding; the Court did not announce a new rule insulating 5
all identity-related evidence from suppression. See Oscar- 6
Torres, 507 F.3d at 228-29; United States v. 7
Olivares-Rangel, 458 F.3d 1104, 1111 (10th Cir. 2006); 8
United States v. Guevara-Martinez, 262 F.3d 751, 754 (8th 9
Cir. 2001). After all, if Lopez-Mendoza’s identity 10
statement – applicable to both criminal and civil 11
proceedings, 486 U.S. at 1039-40 – was intended as a rule of 12
evidence, it would have been impracticable for the Court to 13
employ a cost-benefit analysis in deciding whether to apply 14
the exclusionary rule to Sandoval-Sanchez’s civil 15
deportation proceedings without first determining whether 16
the statements he sought to suppress were identity-related 17
evidence. 18
The jurisdictional nature of Lopez-Mendoza’s identity 19
statement is further evidenced by the authorities it 20
employed, which relate to the long-standing Ker-Frisbie 21
doctrine – providing that an illegal arrest does not divest 22
the trial court of jurisdiction over the defendant or 23
14

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otherwise preclude trial. See id. at 1039-40 (citing, inter 1
alia, Frisbie v. Collins, 342 U.S. 519, 522 (1952) and 2
Gerstein v. Pugh, 420 U.S. 103, 119 (1975)); see also 3
Olivares-Rangel, 458 F.3d at 1110-11 (recognizing Lopez- 4
Mendoza’s identity statement as an application of the Ker- 5
Frisbie doctrine); accord Oscar-Torres, 507 F.3d at 228-29. 6
In Ker v. Illinois, the Supreme Court first considered the 7
effect of an unlawful taking of custody on the validity of a 8
subsequent proceeding; the Court concluded that due process 9
was not violated when a defendant was kidnaped in Peru and 10
forcibly returned to Illinois to stand trial. 119 U.S. 436, 11
438-40 (1886). Due process did not restrict the methods 12
employed to bring the defendant before the court; it 13
governed what happened once he was there. The Court 14
reasoned that due process “is complied with when the party 15
is regularly indicted by the proper grand jury in the state 16
court, has a trial according to the forms and modes 17
prescribed for such trials, and when, in that trial and 18
proceedings, he is deprived of no rights to which he is 19
lawfully entitled.” Id. at 440. 20
More than sixty years later, in Frisbie, the Supreme 21
Court refused to depart from Ker when faced with a due 22
process challenge by a defendant who was abducted in 23
15

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Illinois and taken to Michigan for trial, noting that 1
“[t]here is nothing in the Constitution that requires a 2
court to permit a guilty person rightfully convicted to 3
escape justice because he was brought to trial against his 4
will.” 342 U.S. at 522; see also Gerstein, 420 U.S. at 119 5
(declining to “retreat from the established rule that 6
illegal arrest or detention does not void a subsequent 7
conviction”). Lopez-Mendoza’s reliance on the Ker-Frisbie 8
line of authority in support of its identity statement 9
leaves no doubt that the Court was referencing the long- 10
standing jurisdictional rule that an unlawful arrest has no 11
bearing on the validity of a subsequent proceeding rather 12
than announcing a new rule insulating all identity-related 13
evidence from suppression. 14
Contemporary case law confirms our view. A 15
jurisdictional reading of Lopez-Mendoza’s identity statement 16
is compelled by the Supreme Court’s recent decision in 17
Maryland v. King, 133 S. Ct. 1958 (2013). 7 In King, the 18
7 The Government raised King in a Rule 28(j) Letter for the
purpose of demonstrating that Petitioners’ birth certificates and
Pacheco-Lopez’s arrest records were independently obtained
through their insuppressible identities. However, we think that
King’s treatment of identity-related evidence resolves any doubt
that Lopez-Mendoza’s mandate is jurisdictional rather than
evidentiary.
16

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Supreme Court examined the inventory or booking search 1
exception to the Fourth Amendment’s warrant requirement and 2
found that a criminal defendant was not subjected to an 3
unreasonable search and seizure when a sample of his DNA was 4
taken, pursuant to the Maryland DNA Collection Act, 5
following a lawful arrest for a serious offense that was 6
supported by probable cause. Id. at 1980. In reaching this 7
result, the Court identified the legitimate government 8
interest served by Maryland’s DNA Collection Act as “the 9
need for law enforcement officers in a safe and accurate way 10
to process and identify the persons and possessions they 11
must take into custody,” id. at 1970, and concluded that 12
“[w]hen probable cause exists to remove an individual from 13
the normal channels of society and hold him in legal 14
custody, DNA identification plays a critical role in serving 15
those interests,” id. at 1971. Importantly, we note that 16
the inventory or booking search exception to the Fourth 17
Amendment’s warrant requirement is not implicated on the 18
facts of the case at bar because, unlike in King, 19
Petitioners were not subjected to lawful arrests based on 20
probable cause. Indeed, here the IJ explicitly found that 21
22
23
17

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Petitioners’ arrests constituted unlawful seizures under the 1
Fourth Amendment. 8
2
Still, we find King’s description of identity-related 3
evidence telling. In finding that “name alone cannot 4
address [the government’s] interest in identity,” the Court 5
noted that other relevant forms of identification include 6
fingerprints, “name, alias, date and time of previous 7
convictions and the name then used, photograph, Social 8
8 The Government’s Brief includes a parenthetical citation
to United States v. Adegbite, 846 F.2d 834 (2d Cir. 1988), a case
the Government referenced during oral argument, for the
proposition that “the identity [specifically, the name] of
defendants is not suppressible under the exclusionary rule.”
Resp. Br. at 15 (quoting Adegbite, 846 F.2d at 838-39). In
Adegbite, this Court determined that “the solicitation of
information concerning a person’s identity and background does
not amount to custodial interrogation prohibited by Miranda,” 846
F.2d at 838 – a statement largely irrelevant to this appeal.
Initially, given the Government’s inadequate briefing regarding
any potential application of the pedigree exception discussed in
Adegbite, we consider the argument to be waived. See Tolbert v.
Queens Coll., 242 F.3d 58, 75-76 (2d Cir. 2001).
Regardless, we would deem the pedigree exception to be
inapplicable; it is focused on protecting “basic information
needed to facilitate the booking and arraigning of a suspect”
from suppression as a result of a Miranda violation following a
valid arrest. United States v. Carmona, 873 F.2d 569, 573 (2d
Cir. 1989) (citing United States v. Gotchis, 803 F.2d 74, 78-79
(2d Cir. 1986) and United States ex rel. Hines v. LaVallee, 521
F.2d 1109, 1112-13 (2d Cir. 1975)). The concerns inherent within
the pedigree exception to Miranda violations – supplying
incriminating but identifying information without being warned of
the consequences – do not line up well with the circumstances of
Petitioners’ constitutional claim that they were seized in their
home without consent and without probable cause. There is no
reason to consider engrafting an exception to the protections of
the Fifth Amendment onto Petitioners’ Fourth Amendment claims.
18

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Security number, or [DNA] profile.” Id. at 1972. This 1
broad concept of “identity,” when read in conjunction with 2
the Government’s proffered interpretation of Lopez-Mendoza’s 3
identity statement as precluding the suppression of all 4
identity-related evidence, would render the inventory or 5
booking search exception to the Fourth Amendment’s warrant 6
requirement superfluous. After all, if DNA is identity- 7
related evidence, and Lopez-Mendoza precludes the 8
suppression of all identity-related evidence, then why 9
bother to couch Maryland’s DNA Collection Act within the 10
booking exception at all? And if identity-related evidence 11
includes fingerprints, and Lopez-Mendoza precludes the 12
suppression of all identity-related evidence, then what are 13
we to make of controlling precedent mandating the 14
suppression of this insuppressible evidence? See, e.g., 15
Hayes v. Florida, 470 U.S. 811, 816-17 (1985) (holding 16
fingerprints properly suppressed when defendant was arrested 17
without probable cause, taken to police station without 18
consent, and detained and fingerprinted for investigatory 19
purposes); Taylor v. Alabama, 457 U.S. 687, 692-93 (1982) 20
(concluding that “[t]he initial fingerprints [] were 21
themselves the fruit of petitioner’s illegal arrest . . . .” 22
(citation omitted)); accord Davis v. Mississippi, 394 U.S. 23
19

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721, 727 (1969). Given such peculiar consequences, it is 1
clear that we cannot read Lopez-Mendoza’s identity statement 2
as establishing a rule of evidence. 3
Jurisdictional Identity Evidence is Not Suppressible 4
Although Lopez-Mendoza’s identity statement merely 5
confirmed a long-standing rule of personal jurisdiction, 6
that does not resolve the matter. Lopez-Mendoza’s 7
jurisdictional rule has unavoidable, practical evidentiary 8
consequences. 9 Because an individual cannot escape a 9
tribunal’s power over his “body” despite being subject to an 10
illegal seizure en route to the courthouse, he cannot 11
contest that he is, in fact, the individual named in the 12
charging documents initiating proceedings. See United 13
States v. Garcia-Beltran, 389 F.3d 864, 868 (9th Cir. 2004). 14
Thus, a person’s “identity,” insofar as necessary to 15
identify the individual subject to judicial proceedings, is 16
not suppressible on a purely practical level. 17
The obvious element of identity that falls within this 18
9 The Government argues that one of these consequences is
allowing Petitioners to “immunize themselves from the
consequences of their continuing violation of law.” Resp. Br. at
11. The Supreme Court’s recent confirmation that “[a]s a general
rule, it is not a crime for a removable alien to remain present
in the United States,” alleviates any concerns we harbor with
respect to this claim. Arizona v. United States, 132 S. Ct.
2492, 2505 (2012) (citing Lopez-Mendoza, 468 U.S. at 1038).
20

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category is one’s name. In this case, Petitioners freely 1
concede that they are the individuals charged in the Notices 2
to Appear and they do not argue that their names should be 3
suppressed following an egregious Fourth Amendment 4
violation. 10 A more difficult question is what other 5
identity evidence, if any, is necessary to identify the 6
individual for jurisdictional purposes, and is thus not 7
suppressible on a purely practical level. However, the 8
Court need not reach that question because the Government 9
repeatedly contends that the names alone were sufficient to 10
obtain the additional evidence at issue. Resp. Br. at 7-8, 11
22, 25. There is no need to decide where identity ends and 12
alienage begins. Therefore, we will hold the Government to 13
its position. 14
10 The Government argues that even if this Court requires
suppression of Petitioners’ identity information, Petitioners
will be required to admit or deny the allegations and charges in
any future Notices to Appear pursuant to 8 C.F.R. § 1240.10(c),
and that if they deny the charges, the Government may question
them under oath and the agency may draw adverse inferences if
Petitioners remain silent. Resp. Br. at 10-11 & 10 n.1. The
Government is correct that Section 1240.10(c) provides that an
“immigration judge shall require the respondent to plead to the
notice to appear,” 8 C.F.R. § 1240.10(c), and that “under certain
circumstances, an adverse inference may indeed be drawn from a
respondent’s silence in deportation proceedings,” Matter of
Guevara, 20 I. & N. Dec. 238, 241 (B.I.A. 1990). However, as
Petitioners point out, the BIA has also held that “silence alone
does not provide sufficient evidence, in the absence of any other
evidence of record at all, to establish a prima facie case of
alienage.” Id. at 242.
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Independent Evidence 1
The BIA determined that Petitioners’ birth certificates 2
constituted independent evidence of alienage because they 3
were obtained solely through the use of Petitioners’ 4
insuppressible identities. In assessing whether evidence 5
was independently obtained, we must determine “whether, 6
granting establishment of the primary illegality, the 7
evidence to which instant objection is made has been come at 8
by exploitation of that illegality or instead by means 9
sufficiently distinguishable to be purged of the primary 10
taint.” Wong Sun, 371 U.S. at 488 (internal quotation marks 11
omitted). And where, as here, Petitioners have established 12
a prima facie case for suppression, the Government must 13
“assume the burden of justifying the manner in which it 14
obtained the evidence.” Matter of Barcenas, 19 I. & N. Dec. 15
609, 611 (B.I.A. 1988) (internal quotation marks omitted). 16
The Government maintained before the agency and at oral 17
argument that ICE procured Petitioners’ birth certificates 18
using only their names. But the arguments of counsel are 19
not evidence, Matter of Ramirez-Sanchez, 17 I. & N. Dec. 20
503, 506 (B.I.A. 1980), and the Government failed to make 21
any evidentiary proffer demonstrating the basis for 22
Petitioners’ birth certificate request. Moreover, we note 23
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that the Government’s claim that the request was based on 1
names alone was dubiously supported by only a Federal 2
Express package label, but not by the actual letter ICE sent 3
to the United States Embassy in Guatemala. In addition, the 4
Government’s post-argument Rule 28(j) Letter stating that 5
“it was proper for the government to use aspects of 6
[Petitioners’] identity other than simply their names – such 7
as birth date and even place of birth – to obtain their 8
Guatemalan birth certificates,” would appear to further 9
undermine the Government’s contention. Given that the 10
record before the IJ contained no evidence documenting the 11
basis for Petitioners’ birth certificate request, we find 12
that the BIA erred by concluding that the Government had met 13
its burden of establishing that Petitioners’ birth 14
certificates constituted independent evidence of alienage. 15
See Wong Sun, 371 U.S. at 488; Barcenas, 19 I. & N. Dec. at 16
611. 17
The Government argues that it already possessed 18
independent evidence of Pacheco-Lopez’s alienage prior to 19
any constitutional violation, in the form of his arrest 20
records that were merely linked to him using his name, but 21
the record is equally silent concerning the procurement of 22
those records. The Government relies on Reyes-Basurto v. 23
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Holder, a non-precedential summary order in which we 1
previously affirmed the denial of a motion to suppress 2
evidence on this linkage rationale. See 477 F. App’x 788, 3
789 (2d Cir. 2012). In Reyes-Basurto, the petitioner sought 4
to suppress his Border Patrol records and a Form I-140 5
(Petition For Alien Worker) that were necessarily already in 6
the possession of immigration officials. See id. at 789. 7
In affirming the denial of suppression, we reasoned that 8
Reyes-Basurto’s pre-existing immigration records made him “a 9
‘suspect’ in regards to removability even before his 10
[illegal] arrest.” Id. at 789 (analogizing to Crews, 445 11
U.S. at 476, in which the Court declined to suppress an in- 12
court witness identification because “the robbery 13
investigation had already focused on [Crews], and the police 14
had independent reasonable grounds to suspect his 15
culpability” prior to any Fourth Amendment violation). 16
This rationale does not apply with equal force to 17
Pacheco-Lopez, whose alienage-related evidence was in the 18
possession of a municipal transit police department rather 19
than immigration officials. See Davis, 394 U.S. 721; see 20
also Crews, 445 U.S. at 476 (“Had it not been for Davis’ 21
illegal detention, however, his prints would not have been 22
obtained and he would never have become a suspect.”). In 23
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any event, given that the Government failed to proffer any 1
evidence demonstrating how Pacheco-Lopez’s records were 2
obtained, we are unable to find that this evidence was 3
linked to him through the use of his name alone, and, 4
therefore, we find that the BIA erred in concluding that the 5
Government had met its burden of establishing that this 6
evidence was independent of any constitutional violation. 7
8
Conclusion 9
For the foregoing reasons, the decision of the Board of 10
Immigration Appeals is hereby VACATED and REMANDED. Because 11
the BIA declined to answer the question of whether 12
Petitioners sustained an egregious Fourth Amendment 13
violation, we do not reach this issue. However, we note 14
that fact-finding with respect to the circumstances under 15
which ICE officers entered Petitioners’ home and seized 16
Petitioners has been completed. The Government had an 17
opportunity to respond to Petitioners’ prima facie case for 18
suppression and explicitly chose not to. Likewise, the 19
Government had an opportunity to submit proof showing 20
exactly how it obtained Pacheco-Lopez’s arrest records and 21
Petitioners’ birth certificates. The Government failed to 22
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do so; the evidence proffered is inadequate to support the 1
Government’s claim that it relied on Petitioners’ names 2
alone in securing their birth certificates from the United 3
States Embassy in Guatemala. 4
Accordingly, we remand this case for the BIA to reach 5
the issue of whether Government agents seized evidence of 6
alienage from Petitioners in the course of committing an 7
egregious Fourth Amendment violation. Should any questions 8
over the nature of the constitutional violation linger, we 9
direct the agency to the opinion issued in a companion case 10
also decided today, which found an egregious constitutional 11
violation on facts very similar to those in this case. See 12
Doroteo Sicajau Cotzojay v. Holder, No. 11-4916-ag, – F.3d 13
–, – (2d Cir. 2013). 14
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