The U.S. Court of Appeals for the Seventh Circuit recently affirmed an Immigration Judge’s denial of a motion to suppress an I-213 and Notice to Appear. Gutierrez-Berdin v. Holder, No. 09-1465, 09-3526, 2010 WL 3258267 (7th Cir. Aug. 19, 2010) (Flaum, Rovner, and Wood). Judge Flaum wrote the panel’s decision.
This case involved an individual who entered without inspection in early 1998 and was apprehended by ICE agents at his parents’ home in Illinois on May 22, 2006. Gutierrez-Berdin was served with an NTA at the time he was arrested. “Following the arrest, ICE agents filled out a U.S. Department of Justice Record of Deportable/Inadmissible Alien, known as Form I-213….” Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 2.
Gutierrez-Berdin “moved to suppress and exclude Form I-213, the NTA, and their contents on the ground that the government procured the evidence in violation of Gutierrez-Berdin’s Fourth and Fifth Amendment rights.” In a sworn affidavit, Gutierrez-Berdin claimed that “ICE agents lacked a warrant for his arrest” and that the agents mistreated him during his arrest. Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 3. The Form I-213 alleged that Gutierrez-Berdin was hostile and uncooperative with the arresting ICE agents regarding the whereabouts of his uncle. Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 3.
In reviewing the IJ’s denial of the motion to suppress, the Seventh Circuit grounded its analysis in the Supreme Court’s foundational decision on motions to suppress in removal proceedings, INS v. Lopez-Mendoza , 468 U.S. 1032 (1984) (discussed at Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 9). In Lopez-Mendoza, the Supreme Court held that the exclusionary rule does not typically apply in removal proceedings because they are considered civil rather than criminal proceedings. Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 9. The one exception identified by the Lopez-Mendoza Court is for instances of “‘egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.’” Lopez-Mendoza, 468 U.S. at 1050-51 (quoted in Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 9).
In other words, to overcome Lopez-Mendoza’s bar to using the exclusionary rule in removal proceedings an individual must demonstrate that the evidence was obtained through an egregious violation of the Fourth Amendment or other liberty. The Seventh Circuit was not convinced that Gutierrez-Berdin’s allegations constitute “egregious violations” as contemplated by Lopez-Mendoza. Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 9.
In addition, the Seventh Circuit explained that “Form I-213 is a presumptively reliable administrative document,” thus Gutierrez-Berdin would have to show some inaccuracy in its contents to merit suppression. Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 9. The panel was not convinced that Gutierrez-Berdin demonstrated any inaccuracy with the I-213.
The Seventh Circuit then addressed Gutierrez-Berdin’s allegation that he was arrested without a warrant. The Court explained, “warrantless arrests of suspected illegal aliens are permissible in some situations.” Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 10. For support, the Court cited to 8 C.F.R. § 287.3 , the DHS regulation that provides the procedure required for warrantless arrests. Section 287.3 requires that an officer examine an individual who was arrested without a warrant to determine if prima facie evidence exists “that the arrested alien was entering, attempting to enter, or is present in the United States in violation of the immigration laws.” If such prima face evidence exists, the arrested individual must be referred to an IJ. 8 C.F.R. § 287.3(b).
This procedure is permissible, the Seventh Circuit added, because it does not violate Gutierrez-Berdin’s substantive rights in the removal proceeding. Gutierrez-Berdin, No. 09-1465, 09-3526, slip op. at 10. That is, his warrantless arrest does not impact his removal case.