Argued: January 25, 2018
Petition for Review of an Order of the Board of Immigration
Dalin, UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF
LAW, Baltimore, Maryland, for Petitioner.
Ugumori, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. Matthew E. Price, JENNER & BLOCK,
LLP, Washington, D.C., for Amicus American Immigration
Maureen A. Sweeney, Supervising Attorney, Adilina
Malavé, Third Year Law Student, Anne Brenner, Third
Year Law Student, University of Maryland Carey Immigration
Clinic, UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF
LAW, Baltimore, Maryland, for Petitioner.
A. Readler, Acting Assistant Attorney General, Emily Anne
Radford, Assistant Director, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Zota, NATIONAL IMMIGRATION PROJECT OF THE NATIONAL LAWYERS
GUILD, Boston, Massachusetts, for Amicus National Immigration
Project of the National Lawyers Guild. Deborah A. Jeon,
Nicholas Steiner, AMERICAN CIVIL LIBERTIES UNION OF MARYLAND,
Baltimore, Maryland, for Amicus ACLU of Maryland. Melissa
Crow, AMERICAN IMMIGRATION COUNCIL, Washington, D.C., for
Amicus American Immigration Council.
MOTZ and DIAZ, Circuit Judges, and Robert J. CONRAD, Jr.,
United States District Judge for the Western District of
North Carolina, sitting by designation.
GRIBBON MOTZ, Circuit Judge
questioning Jairo Ferino Sanchez and learning that he had
entered the country illegally, state police officers detained
and then transported him to Immigration and Customs
Enforcement ("ICE"). An Immigration Judge
("IJ"), in a decision affirmed by the Board of
Immigration Appeals ("BIA"), rejected Sanchez's
motion to suppress the statements he made to the state
officers and ICE, and ordered his voluntary departure.
Sanchez now petitions for review. For the reasons that
follow, we must deny that petition.
22, 2009, Maryland Transportation Authority Police
("MdTAP") Officer Acker stopped Jose Alberto
Badillo Taylor ("Badillo") for a traffic violation.
Badillo failed to produce a valid license and Officer Acker
noticed that the car had exposed ignition wiring and lacked a
steering column, indicating that perhaps it had been stolen.
When Badillo explained that the car, a Nissan, belonged to a
friend, Officer Acker directed Badillo to call the
Nissan's owner, Juventino Tenorio Davila
("Tenorio"), to retrieve his car from the scene. At
the time Tenorio received Badillo's call, he was
traveling in an Acura with Sanchez and another passenger,
Seltik Ferino Sanchez ("Ferino"). Sanchez agreed to
drive Tenorio and Ferino to Badillo's location to
retrieve the Nissan.
the three men arrived on the scene, Sanchez parked the Acura
about twenty to thirty feet in front of the Nissan. Sanchez,
Tenorio, and Ferino remained inside the Acura with the engine
running. After approximately five minutes, Officer Acker
approached the Acura, leaned inside the front passenger
window, and asked the men whether they were "illegal or
legal." Officer Acker repeated the question two or three
times. The Officer later explained that because he believed
the men had acted in a "suspicious" manner, when
they refused to answer his questions, he spoke to them in an
to Sanchez, the questioning made him "scared and
nervous." Because he "felt pressured and
intimidated, " he answered the Officer's question
and admitted that he had entered the country illegally. At
that point, Officer Acker stopped questioning the men and
asked Sanchez to turn off the ignition and give him the keys.
Sanchez complied. Upon the Officer's request, all three
men produced identification cards. With the assistance of
another MdTAP officer, Officer Acker then handcuffed the
officers transported Sanchez, Tenorio, Ferino, and Badillo to
the MdTAP station. At the station, MdTAP officers removed the
handcuffs and placed the men in a small cell. After about 90
minutes, Officer Acker returned, re-handcuffed the men, and
explained that he was taking them to the ICE
facility. In total, MdTAP officers detained Sanchez
for approximately three-and-a-half hours.
in ICE custody, an ICE agent interviewed Sanchez, who again
admitted that he had entered the United States illegally
without inspection. The agent memorialized Sanchez's
admissions to Officer Acker and ICE about his immigration
status in a Form I- 213 (Record of Deportable/Inadmissible
Alien). That form also identifies Sanchez as "a native
and citizen of Mexico who entered the United States" in
"February 2000 without inspection by an Immigration
on the form, ICE instituted removal proceedings against
Sanchez pursuant to Section 212(a)(6)(A)(i) of the
Immigration and Nationality Act, 8 U.S.C. §
1182(a)(6)(A)(1) (2006). Sanchez moved the IJ to suppress all
evidence of his illegal entry, including the Form I-213. He
maintained that the state police officers obtained this
information in violation of his Fourth and Fifth Amendment
support of his contentions, Sanchez provided affidavits from
himself, Tenorio, Ferino, and Badillo. Sanchez also offered
an affidavit from Major Stanford O'Neill Franklin, the
Executive Director of Law Enforcement Against Prohibition and
a former member of the Maryland State Police and MdTAP. In
addition, the IJ heard testimony from Sanchez, Officer Acker,
Major Franklin, and ICE's expert witness (a Maryland
sheriff and former MdTAP officer).
found that Sanchez "testified credibly in terms of what
happened" during the May 2009 traffic stop. He also
concluded that Officer Acker treated Sanchez "and his
friends . . . pretty much in the manner" Sanchez
described, in that Officer Acker inquired "about who
they are, where they are from, " and asked them "to
produce identification." But the IJ was not persuaded
that the state officers "intimidated and
frightened" Sanchez into giving "up information
regarding his Immigration status." The IJ therefore
concluded that the record lacked "'specific and
detailed statements from which [the IJ] could find
evidence" that the MdTAP officers had engaged in
"coercion or duress." As a result, the IJ concluded
that Sanchez had "failed to demonstrate any violation of
the Fifth Amendment that can provide the basis for
suppression of evidence." The IJ also found that even if
"the MdTAP officers did violate [Sanchez's] Fourth
Amendment rights, the presumed violation" was not
appeal before the BIA, Sanchez argued that the IJ applied the
incorrect legal standard to his Fourth Amendment claim. The
IJ had determined not to suppress Sanchez's statements
because any violation of Sanchez's Fourth Amendment right
was not "egregious" under INS v.
Lopez-Mendoza, 468 U.S. 1032 (1984), and
Yanez-Marquez v. Lynch, 789 F.3d 434 (4th Cir.
2015). Sanchez claimed that the IJ should have instead
applied "the full exclusionary rule" and that under
that standard, the IJ should have suppressed his statements.
Alternatively, Sanchez maintained that, contrary to the
IJ's conclusion, he had "suffered an egregious
violation of ...