STRATEGIES FOR SUPPRESSING EVIDENCE AND TERMINATING REMOVAL PROCEEDINGS FOR CHILD CLIENTS

Transcription

1 PRACTICE ADVISORY STRATEGIES FOR SUPPRESSING EVIDENCE AND TERMINATING REMOVAL PROCEEDINGS FOR CHILD CLIENTS Produced for the Vera Institute of Justice s Unaccompanied Children Program By Helen Lawrence, Kristen Jackson, Rex Chen, and Kathleen Glynn March 2015

2 TABLE OF CONTENTS INTRODUCTION... 1 I. BASIC CONCEPTS... 2 A. Termination and Suppression... 2 B. Contexts: Border Enforcement and Interior Enforcement... 3 C. Why Termination and Suppression Strategies Are Important to Children s Cases in the Current Immigration Landscape... 3 II. TERMINATION FOR REGULATORY AND POLICY VIOLATIONS... 4 A. Child-Specific Regulations CFR 236.3(h): Service of Form I-770, Notice of Rights and Disposition CFR 103.8(c)(2)(ii): Service of Form I-862, Notice to Appear CFR (c): Admissions of Removability... 7 B. General Regulations (Those Benefiting Not Just Children) Fourth Amendment-Based Regulations 8 CFR 287.8(b) and (c)(2), and 8 CFR 287.3(a): Detention, Arrests, and Questioning Fifth Amendment-Based Regulations 8 CFR 287.8(c)(2)(vii), 8 CFR 287.3(c) and 292.5(b), and 8 CFR (a): Interrogations and Advisals... 9 C. Protective Policies Applicable to Children Flores Settlement Agreement Orantes-Hernandez Permanent Injunction Hold Rooms Memorandum Trafficking Victims Protection and Reauthorization Act of III. SUPPRESSION OF EVIDENCE, PARTICULARLY EVIDENCE OF ALIENAGE A. Fourth Amendment Violations Egregious Fourth Amendment Violations... 14

3 2. Widespread Fourth Amendment Violations B. Fifth Amendment Violations C. Other Novel Suppression Theories Suppression for Violating the Right to Consular Notification Suppression for Any Fourth Amendment Violation Suppression for Violating State Constitutional Protections Suppression for Violating State Juvenile Confidentiality Laws D. Civil Rights Strategies in Addition to Termination and Suppression IV. PRACTICAL CONSIDERATIONS: INTERVIEWING CHILDREN, INFORMATION GATHERING, AND DECISION MAKING A. Working with Children: Interview Strategies Groundwork The Interview After the Interview Other Considerations B. Determining Whether DHS Violated the Law: Gathering Information Interview the Client Interview Witnesses Examine the I-213 and Other Key Documents Check for Forged Documents Pursue Document Production C. Pros, Cons, and Case Strength: Advising Your Client and Reaching a Decision Advantages Disadvantages... 28

4 3. Analyzing Case Strength and Determining the Best Course of Action Decision-Making and Forming a Plan with Your Client V. PROCEDURAL STEPS FOR TERMINATION AND SUPPRESSION STRATEGIES A. Setting Up the Case for Termination and Suppression The Initial Master Calendar Hearing Motion Preparation and Filing B. Your Motion Playing Out in Court: Evidentiary Hearing and IJ Decision Prima Facie Case ICE s Attempt to Meet Its Burden The IJ s Decision on the Motion C. Pursuing Relief While Pursuing Suppression and Termination D. Dealing with Appeals Yours and ICE s of Suppression and Termination Decisions If the IJ Denies Your Motion If the IJ Grants Your Motion E. Strategies When Your Client Does Not Show Up to Court What to Do at the Hearing to Avoid an In Absentia Order What to Do after the Hearing if the IJ Issues an In Absentia Order VI. CONCLUSION VII. APPENDICES... 41

5 INTRODUCTION 1 This practice advisory provides a framework and guide to practitioners on termination and suppression motions to help children in removal proceedings. Termination and suppression motions are interrelated yet analytically distinct defense strategies to push back against unlawful government action. In their most basic form, they aim to end proceedings either because the government violated its own rules or because the government does not have lawfully-obtained evidence of alienage. In a time when the government is placing an unprecedented number of children in removal proceedings and expediting their proceedings, termination and suppression are vital safeguards to protect children s rights. Part I of this practice advisory discusses general concepts relevant to the more detailed discussion to follow. Part II examines the regulations, policies, and procedures applicable to termination motions. It reviews child-specific regulations (such as providing a Form I-770), general regulations (such as protection from illegal searches and coercion), and protective policies (such as the Flores Settlement Agreement and the Orantes-Hernandez injunction). Part III dives into suppression motions, including for Fourth and Fifth Amendment violations, international treaty violations, and state-law violations. Part IV addresses practical considerations working with children; determining whether the government broke the law; and making tactical decisions about going forward with termination, suppression, or both. Part V covers procedural steps to prepare and litigate termination and suppression motions from beginning to end, including obtaining evidence, filing motions, preparing for hearings and testimony, and handling appeals. It also includes strategies for in absentia proceedings. Part VI concludes the advisory. 1 Helen Lawrence leads the Law Office of Helen Lawrence in Oakland, California; Kristen Jackson is a Senior Staff Attorney at Public Counsel in Los Angeles, California; Rex Chen is a Supervising Attorney at The Legal Aid Society in New York, New York; and Kathleen Glynn is a Senior Associate at Grob & Eirich, LLC, in Denver, Colorado. The authors thank the following people for their contributions to this practice advisory: Daniel Blank, Jennifer Casey, Michael Hagerty, Tricia Herzfeld, Bryan Johnson, Meredith Linsky, Michelle Mendez, Nickole Miller, Elliott Ozment, Matthew Shaftel, Elissa Steglich, Sara Van Hofwegen, and Will York. All errors and omissions are solely those of the authors. All unpublished immigration judge (IJ) and Board of Immigration Appeals (BIA) decisions are on file with the authors. Questions about this advisory may be directed to Helen Lawrence at helenlawrence.esq@gmail.com. Readers interested in joining a secret joint defense group that provides a confidential method to share observations, research, and decisions on termination and suppression issues should contact Rex Chen at rexnyc@gmail.com. 1

6 I. BASIC CONCEPTS A. Termination and Suppression 2 When the government violates certain regulations, policies, or procedures, removal proceedings may be terminated even if the government can prove alienage. Specifically, in Matter of Garcia-Flores, the Board of Immigration Appeals (BIA) recognized that when a federal regulation is intended to serve a purpose of benefit to a noncitizen and the government violation of that regulation prejudiced her interests protected by the regulation and such prejudice affected the outcome of the deportation proceedings, it is appropriate to invalidate proceedings. 3 In addition, prejudice is presumed in several situations, including where the regulation violated protects constitutional rights and where it creates an entire procedural framework designed to ensure the fair processing of the case. 4 The related concept of suppressing evidence is based on the exclusionary rule, which provides that objects or statements obtained in violation of the Constitution generally may not be used in court. 5 The primary goal in immigration proceedings is to prevent the government from meeting its burden of proving alienage (thus resulting in dismissal of proceedings for lack of jurisdiction). 6 It also may be used to keep out evidence introduced for other reasons. In INS v. Lopez-Mendoza, 7 a plurality of the Supreme Court recognized that egregious or widespread violations of the Fourth Amendment could serve as bases to exclude evidence in civil removal proceedings. 8 The case left open the possibility of applying the exclusionary rule to violations of other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained. 9 The BIA and other courts have excluded evidence in immigration proceedings based on Fourth and Fifth Amendment violations. 10 There is no requirement to choose between filing a termination motion and a suppression motion it is common to file both, where appropriate. 2 See Appendices 1.A, 1.B, 1.C and 1.D (sample motions to suppress and terminate). 3 Matter of Garcia-Flores, 17 I&N Dec. 325, (BIA 1980) (citing United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979)). 4 Garcia-Flores, 17 I&N Dec. at See Wong Sun v. United States, 371 U.S. 471, 485 (1963). 6 Where a child is charged as being present in the United States without being admitted or paroled, DHS must prove only the child s alienage; if DHS succeeds, the burden then shifts to the child to establish the time, place, and manner of entry. See 8 CFR (c); Matter of Cervantes-Torres, 21 I&N Dec. 351, 354 (BIA 1996). 7 The Immigration and Naturalization Service (INS) was abolished in 2003 and its functions were primarily placed under three agencies U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and U.S. Customs and Border Protection (CBP) within the U.S. Department of Homeland Security (DHS). See Our History, (last updated May 25, 2011). 8 INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); see also Puc-Ruiz v. Holder, 629 F.3d 771, 778 (8th Cir. 2010); Lopez- Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008); Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006). 9 Lopez-Mendoza, 468 U.S. at See, e.g., Singh v. Mukasey, 553 F.3d 207, 216 (2d Cir. 2009) (excluding evidence based on due process violation); Matter of Garcia, 17 I&N Dec. 319, 321 (BIA 1980) (suppressing evidence based on due process violation). 2

7 B. Contexts: Border Enforcement and Interior Enforcement Three major areas of potential unlawful government conduct are children s treatment at the border, in the juvenile justice system, and in searches within the United States. Distressing border conditions for children have been reported. 11 They include children being physically and sexually abused, being forced to sleep on floors without a mattress, being held in painfully freezing rooms (referred to as hieleras or iceboxes ), not being properly served legal papers, not being read their rights, being questioned by the same officers who arrested them, and being questioned in a language they do not understand. In the juvenile justice system, states are unlawfully sharing confidential information with U.S. Immigration and Customs Enforcement (ICE) and ICE is coercively interrogating children. 12 Turning children with strong ties to the United States over to ICE can strike fear in communities that look to the system to provide rehabilitation, not deportation, for children. Illegal searches and seizures in the United States interior, like workplace raids, traffic stops, and home raids, can also include children as victims. C. Why Termination and Suppression Strategies Are Important to Children s Cases in the Current Immigration Landscape Termination and suppression motions are effective ways to protect immigrants whose rights are violated. Responding to illegal conduct through legal challenges pushes back against unlawful action, holds the government accountable, and aims to protect everyone s rights. For some children, these legal strategies are their only viable arguments against deportation. Practitioners should analyze termination and suppression grounds for all of the children they represent as part of an effort to provide zealous advocacy and to ensure a deliberate, fair process for child clients. 11 See, e.g., National Immigrant Justice Center et al., Complaint to Department of Homeland Security, Office of Civil Rights and Civil Liberties and Office of Inspector General, Regarding Systemic Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection (June 11, 2014) (presenting individual complaints and discussing numerous reports), available at 12 See, e.g., U.C. Irvine School of Law Immigrant Rights Clinic, Second Chances for All: Why Orange County Probation Should Stop Choosing Deportation Over Rehabilitation for Immigrant Youth (Dec. 2013), available at 3

8 II. TERMINATION FOR REGULATORY AND POLICY VIOLATIONS A termination motion should be considered when the government violates a regulation or policy that: (a) is mandated by the Constitution or federal law so prejudice is presumed; or (b) creates an entire procedural framework to ensure the fair processing of the case so prejudice is presumed; or (c) is intended to benefit the noncitizen child plus the violation results in actual prejudice. 13 The regulations in Title 8 of the Code of Federal Regulations (CFR) describe some procedures the government must follow. 14 The CFR contains regulations that apply to everyone and some that apply to children only. The child-specific regulations are addressed in Section II.A below. Section II.B then covers the generallyapplicable regulations. Finally, Section II.C addresses protective policies, as opposed to regulations, that may support a termination motion. A. Child-Specific Regulations The following regulations are specific to children. Unless otherwise stated, these regulations apply to all children under the age of 18, including children apprehended with a parent, rather than only to those deemed unaccompanied alien children (UAC) CFR 236.3(h): Service of Form I-770, Notice of Rights and Disposition The Form I-770 informs the child of his or her rights during the initial processing interview, typically conducted by a subsidiary agency of the U.S. Department of Homeland Security (DHS), such as U.S. Customs and Border Protection (CBP) or, for youth in the juvenile justice system, ICE. 16 The I-770 must be provided to the child when the child is apprehended. Under the regulation, DHS must provide the I- 770 to all children, including children apprehended with their parents. The government must read and explain the I-770 in a language the child can understand if the child is under 14 years old or does not understand the written notice. If the child accepts voluntary departure after asking for a hearing or if the child is allowed to withdraw his or her application for admission, the government must give the child 13 See generally Garcia-Flores, 17 I&N Dec. at For an example of a motion arguing actual prejudice as a result of a regulatory violation, see Appendices 1.A, 1.B, 1.C and 1.D (sample motions to suppress and terminate). 14 See, e.g., 8 CFR 287. In some districts, ICE is making the dubious argument that by inserting a disclaimer in 8 CFR (which states that the regulations do not create any rights enforceable by law) in 2003, the agency unilaterally overrode decades of established Supreme Court precedent about regulatory violations arising out of United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, (1954). However, ICE s argument is not supported by statements issued when the regulation was first authorized. The commentary on the final rule explained that this regulation would not prevent anyone from pursuing remedies existing under law. See Enhancing the Enforcement Authority of Immigration Officers, 59 Fed. Reg , (Aug. 17, 1994). Logically speaking, Section should not prevent anyone from seeking termination under Garcia-Flores, a remedy that had been established 14 years before the 1994 commentary. 15 An unaccompanied alien child is defined as a child who is under 18 years old, has no lawful immigration status in the United States, and has either no parent or legal guardian in the United States or no parent or legal guardian in the United States available to provide care and physical custody. 6 U.S.C. 279(g)(2). 16 See Appendices 2.A and 2.B (redacted I-770s). 4

9 a new I-770. The requirement to provide an I-770 is also found in the Flores Settlement Agreement, discussed in Section II.C below. 17 Consider filing a termination motion 18 in these situations: DHS did not give the child an I-770 (even if it served a similar form) DHS did not give the I-770 to the child timely (e.g., provided it after interviewing the child) DHS did not read aloud the I-770 or explain it and the child was either: (1) under 14; or (2) the child was at least 14 and it was clear the child did not understand (e.g., the child obviously could not read what was written, the child had obvious developmental disabilities, the child had obvious psychological issues, or the child obviously was unable to concentrate) DHS gave the child an I-770 written in a language the child did not understand and DHS refused to translate it (e.g., giving something in Spanish to a child who understood only an indigenous language) DHS completed the I-770 in a way that failed to reflect that it followed proper procedures DHS forced the child to sign the I-770 without offering the child any opportunity to read it DHS did not give a copy of the I-770 to the child immediately after the child signed it DHS did not give the I-770 to the child and instead gave it only to the child s guardian or the conservator of the Office of Refugee Resettlement (ORR)-funded shelter where the child was held CFR 103.8(c)(2)(ii): Service of Form I-862, Notice to Appear The Notice to Appear (NTA) is the charging document alleging the factual and legal bases for the initiation of removal proceedings. 20 The NTA is created by DHS officials, often after interviewing and obtaining admissions from the child; served upon the child as required by statute, regulation, and case law; and finally, filed with the immigration court. DHS must comply with the NTA service requirements applicable to children. Under 8 CFR 103.8(c)(2)(ii), in cases of children under 14 years of age, the NTA shall be served upon the person with whom the child resides; whenever possible, DHS shall also serve the near relative, guardian, committee, or friend. If DHS serves the NTA while the child is in federal custody, service 17 See Stipulated Settlement Agreement 12.A, Flores v. Reno, No. CV RJK(Px) (C.D. Cal. Jan. 17, 1997), available at 18 See Appendices 3.A and 3.B (sample termination motions based on I-770 and order granting motion). 19 ORR is an office within the Administration for Children and Families of the U.S. Department of Health and Human Services (HHS). HHS is the federal entity responsible for the care and custody of UAC. See William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), Pub. L. No , 122 Stat. 5044, 235(b)(1)-(3) (codified at 8 U.S.C. 1232(b)(1)-(3)). Once a child is in ORR custody, ORR employees attempt to locate relatives or other responsible adults within the United States with whom they may place the child. This process is called reunification. Once reunified, the child continues in removal proceedings in the venue of placement. Those children for whom a relative or other caregiver cannot be identified and approved will remain in ORR custody and in removal proceedings. Detained children who are identified as victims of human trafficking or have an approved Special Immigrant Juvenile Status (SIJS) petition or an approved asylum application may be placed in foster care through the Unaccompanied Refugee Minors Program. For more information on ORR and the services it provides to unaccompanied immigrant children, see Unaccompanied Children s Services, (last visited Jan. 18, 2015). 20 See Appendices 4.A and 4.B (redacted NTAs). 5

10 should be on the head of the ORR-funded facility where the child resides. 21 Upon release from ORR custody, the child s ORR sponsor should be served. 22 The BIA has held that if the child s parent is present in the United States, the regulation requires service on the parent, in addition to any prior service upon, for example, a near relative or ORR. 23 In the Ninth Circuit, the service requirement for ORR sponsors applies to children up to the age of 18 years. 24 Look to BIA precedent for further clarification on how the government s failure to comply with its regulatory requirements for NTA service on children can serve as a basis for a termination motion. 25 Also examine 8 U.S.C [INA 239] and accompanying regulations for other potential violations related to the NTA warranting a termination motion. For example, in addition to improper service, additional bases for a termination motion might include the insufficiency of the NTA (for example, no original signature of the officer on the NTA filed with the court or the issuance of the NTA by an individual not authorized to do so), the inaccuracy of the NTA, or that the NTA was improvidently issued. 26 Consider filing a termination motion 27 in these situations: The child, the ORR sponsor, and/or the parent did not receive a copy of the NTA The NTA s certificate of service does not show service on all parties as required by regulations and case law (for example, the ORR sponsor of a 17-year-old child in the Ninth Circuit was not served under Flores-Chavez or no adult was served with the NTA for a child under 14) DHS s only purported service of the ORR sponsor was to tell the child to give a copy of the NTA to the sponsor DHS attempts to perfect service in court, in violation of 8 CFR (a) (NTA service must be properly executed prior to filing the NTA with the court) The NTA contains the wrong name or other basic identifying, biographical information describing the child The NTA fails to allege sufficient facts to establish the child s alienage or removability 21 See Matter of Amaya, 21 I&N Dec. 583, (BIA 1996). 22 See Matter of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002) (en banc) (holding that the purpose of requiring service of a notice to appear on the person with whom a minor respondent resides [is] to direct service of the charging document upon the person or persons who are most likely to be responsible for ensuring that an alien appears before the Immigration Court at the scheduled time. (quoting Amaya, 21 I&N Dec. at 585)). 23 Mejia-Andino, 23 I&N Dec. at See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1163 (9th Cir. 2004) (holding that [i]n light of the constitutional concerns, the only reasonable construction of the statute and implementing regulations requires notice to the adult to whom the juvenile is released from custody. Thus, when the INS releases a minor alien to an adult s custody pursuant to 8 CFR , thereby making that adult responsible for the minor s future appearance at immigration proceedings, the agency must serve notice of the minor s rights and responsibilities upon that adult if the minor is under eighteen. ). For those outside the Ninth Circuit, consider arguing that the NTA service regulation applies to children 14 and over if there are indicia of trauma or incompetence that DHS should have recognized. The regulation s rationale should apply to such vulnerable children despite their age. 25 See, e.g., Matter of Cubor-Cruz, 25 I&N Dec. 470, 473 (BIA 2011) (holding that personal service of the NTA on a child who is 14 years of age or older at the time of service is effective and notice need not be served on an adult with responsibility for the child); Mejia-Andino, 23 I&N at (concluding that proceedings against a seven-year-old child were correctly terminated due to failure to properly serve the NTA). 26 See American Immigration Council et al., Notice to Appear: Legal Challenges and Strategies (June 2014), available at 27 See Appendices 5.A and 5.B (sample termination motions based on NTA). 6

11 The NTA filed with the court does not bear the original signature of an officer with the authority to issue the NTA under 8 CFR 239.1(a) The NTA was issued without a date or time for removal proceedings and was not followed up by a hearing notice as required under 8 CFR (b) 3. 8 CFR (c): Admissions of Removability CFR (c) specifies that the immigration judge (IJ) shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend; nor from an officer of an institution in which a respondent is an inmate or patient. When, under this regulation, the IJ does not accept an admission of removability, the regulation directs the IJ to hold a hearing on the issues. 28 In Matter of Amaya, the BIA held that although an IJ may not accept the literal admission to a charge of deportability by an unrepresented child without a relative, legal guardian, or friend in court, the IJ can accept such a child s admissions to factual allegations, which then may form the sole basis of a finding that such a child is deportable. 29 But if so, the IJ must take special care in determining whether deportability is established by clear and convincing evidence. 30 The IJ must consider the child s age and pro se and unaccompanied status and determine, after a comprehensive and independent inquiry, whether the child is both capable of understanding, and in fact understands, any facts that are admitted, and that those facts establish deportability. 31 Consider filing a termination motion in these situations: The IJ improperly accepted admissions related to removability before an attorney represented the child (whether the child was in court totally alone or was in court with an adult who does not fall into one of the categories specifically listed at 8 CFR (c)) The IJ did not enlist procedural safeguards, such as the comprehensive, independent inquiry required by Matter of Amaya, before finding the child removable DHS wants to use factual admissions the child made that are inherently unreliable in light of the child s unaccompanied or unrepresented status, how the child was coerced, or other regulatory violations (e.g., not serving an I-770) B. General Regulations (Those Benefiting Not Just Children) The regulations discussed in this Section derive from the Fourth and Fifth Amendments of the United States Constitution. 32 Where compliance with the regulation is mandated by the Constitution, prejudice 28 See 8 CFR (c). 29 Amaya, 21 I&N Dec. at Id. at 586 (citing 8 CFR (a) (1996) regarding clear, unequivocal, and convincing evidence ). 31 Id. at Fourth and Fifth Amendment violations themselves are explored in greater depth in Part III below. If the regulatory violation is also a constitutional violation, consider filing both a termination motion and a suppression motion based on the same improper conduct. 7

12 may be presumed. 33 Keep in mind that even though these regulations are not child-specific, children have unique vulnerabilities that can provide a basis for distinguishing unhelpful case law developed in the adult context and may assist in demonstrating prejudice resulting from violation of the regulations. Some of these vulnerabilities are explored in Section III.A below. 1. Fourth Amendment-Based Regulations 8 CFR 287.8(b) and (c)(2), and 8 CFR 287.3(a): Detention, Arrests, and Questioning Several regulations reinforce the protections against unlawful search and seizure of the Fourth Amendment. A person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was not free to leave. 34 A child s perception of when he or she is not free to leave an encounter with an official is often very different from an adult s sense of when he or she can walk away CFR 287.8(b) prohibits unauthorized interrogation and detention by immigration agents outside the parameters of the Fourth Amendment. Specifically, it restricts immigration officers authority to detain people for additional questioning to cases where the agents have reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States. If there is no reasonable suspicion, they may not restrain the freedom of an individual, not under arrest, to walk away. In addition, 8 CFR 287.8(c)(2)(i)-(ii) requires an arrest warrant except when the officer has both reason to believe that an immigration arrest is warranted and reason to believe that the person is likely to escape before a warrant can be obtained. It is important to examine carefully each step leading up to law enforcement s encounter with a child. Were there specific articulable facts amounting to reasonable suspicion to justify detention? Was the child free to walk away from the encounter? Did the child feel free to leave? While the case law is not favorable regarding Fourth Amendment-like standards along the border, 36 consider violations of these regulations when a child did not present himself or herself to CBP. 8 CFR 287.3(a) requires that the officer who determines if a person should be placed in removal proceedings (the examining officer ) be someone other than the arresting officer, subject to the exception of when another qualifying officer is not available and taking the person before another officer will cause unnecessary delay. Consider arguing that the need for a separate officer is analogous 33 See Garcia-Flores, 17 I&N at 329; see also United States v. Caceres, 440 U.S. 741, 749 (1979) ( [a] court s duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law ); Bridges v. Wixon, 326 U.S. 135, (1945) (invalidating a deportation order based on statements which did not comply with INS regulations aimed at providing the noncitizen with due process); Leslie v. Holder, 611 F.3d 171, 180 (3d Cir. 2010) ( For the sake of emphasis we repeat: we hold that when an agency promulgates a regulation protecting fundamental statutory or constitutional rights of parties appearing before it, the agency must comply with that regulation. Failure to comply will merit invalidation of the challenged agency action without regard to whether the alleged violation has substantially prejudiced the complaining party. ). 34 See United States v. Mendenhall, 446 U.S. 544, (1980). 35 See, e.g., J.D.B. v. North Carolina, 131 S. Ct. 2394, 2403 (2011) ( a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go ). 36 See United States v. Ramsey, 431 U.S. 606, 616 (1977); United States v. Brignoni-Ponce, 422 U.S. 873, (1975). 8

13 to the need for a neutral magistrate in the Fourth Amendment s warrant requirement. 37 In Martinez- Camargo v. INS, the Seventh Circuit rejected this argument and held there was no proof of actual prejudice in the adult s case. 38 However, consider portraying this requirement as analogous to the warrant requirement, developing the factual record about whether the child suffered actual prejudice, and distinguishing Martinez-Camargo on the basis that it involved an adult respondent. 2. Fifth Amendment-Based Regulations 8 CFR 287.8(c)(2)(vii), 8 CFR 287.3(c) and 292.5(b), and 8 CFR (a): Interrogations and Advisals Other regulations mirror Fifth Amendment due process rights including the protection against coerced interrogations and the guarantee of fundamentally-fair proceedings. Some apply before the child is placed into removal proceedings, while others govern the proceedings themselves. 8 CFR 287.8(c)(2)(vii) generally prohibits the government from using coerced statements. Just as a child s perception of when he or she is free to leave is different from that of an adult, so too is a child s sense of voluntariness in answering questions posed by officials. Traditional factors to consider when determining voluntariness include: physical abuse, length of interrogation, denial of food or drink, threats or promises, or interference with a respondent s attempts to exercise rights. 39 Age is also a critical factor in assessing voluntariness. 40 If DHS is attempting to use a child s statements, look for evidence of coercion through a child-focused lens. Consider a termination motion when the circumstances of obtaining the child s statements rise to coercion or duress for the child, even if they would not be considered coercive for an adult. Where was the child questioned? Was the door in the room where he or she was questioned open or closed? Was the child deprived of food or drink? Who was present when the child was questioned? What did the child understand to be the purpose of the questioning? How old was the child when questioned? Did a developmental disability, past experience of trauma, or any other factor influence his or her perception of the questioning? How long did questioning take place? Did questioning take place in an inherently coercive environment? 8 CFR 287.3(c) and 292.5(b) contain important required advisals of rights. With the exception of expedited removal, 41 the government must advise people of the reasons for their arrest and of the right to be represented at no expense to the government. The examining officer must advise that any statement may be used against the person in a later proceeding. The examining officer must also provide a list of the available free legal services organizations and attorneys located in the district where the removal hearing will be held. These warnings must be given in a language the person understands 37 See Gerstein v. Pugh, 420 U.S. 103, 112 (1975) (explaining that the Fourth Amendment requires that whenever possible, a neutral and detached magistrate should evaluate whether probable cause exists). 38 Martinez-Camargo v. INS, 282 F.3d 487, 492 (7th Cir. 2002). 39 See Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980). 40 See J.D.B., 131 S. Ct. at 2403 ( [N]o matter how sophisticated, a juvenile subject of police interrogation cannot be compared to an adult subject. ) (internal quotations and citation omitted). 41 Expedited removal is a procedure (generally applicable only to adults) that allows DHS to issue a removal order against a noncitizen with no hearing or review by an IJ when the noncitizen is encountered at a port of entry or within 100 miles of the border: (1) without a valid entry document; or (2) having lied or misrepresented a material fact, including falsely claiming U.S. citizenship, in obtaining U.S. entry documents or admission. See 8 U.S.C. 1225(b)(1) [INA 235(b)(1)]. 9

14 and the person must acknowledge understanding them. Litigation has focused on when these advisals must be given. In Matter of Gregorio Cruz Perez, the government s failure to comply with 8 CFR 287.3(c) and 292.5(b) prior to interrogation resulted in termination of removal proceedings. 42 However, in Samayoa-Martinez v. Holder, the Ninth Circuit held the advisals are not required until the NTA is filed with the court. 43 Similarly, in Matter of E-R-M-F- & A-S-M-, the BIA held that the advisals are not needed until an NTA has been filed with the court. 44 However, for these advisals to have any meaning, they must be given before interrogation, particularly to vulnerable individuals such as children. 45 Even if the IJ determines that delayed advisals do not violate the regulation, argue that the statements obtained during the interrogation without advisals were not voluntary under the Fifth Amendment as described in Section III.B. Consider a termination motion in the following situations, similar to those noted in the context of the I-770: DHS failed to give the 8 CFR 287.3(c) advisals DHS did not give the 8 CFR 287.3(c) advisals before interrogation (pushing back against bad case law developed in the adult context and focusing on the particular vulnerability of children) DHS did not give the 8 CFR 287.3(c) advisals in a language the child could understand After the commencement of proceedings against the child, 8 CFR (a) requires that the IJ tell him or her about free legal services and provide a list of these services. This regulation is a due-processderived regulation ensuring fundamental fairness in proceedings. In Leslie v. Holder, the Third Circuit overturned a removal order when the unrepresented respondent was not given these advisals. 46 Consider pursuing a termination motion where the IJ failed to give a child a list of free legal services when unrepresented. C. Protective Policies Applicable to Children Below are several examples of agreements and policies that may serve as additional potential bases for termination. New policies are emerging all the time and the specific facts of your case may implicate a policy not covered here. Think creatively about additional settlements, injunctions, or policies that may apply. To obtain relevant memoranda, consider using Freedom of Information Act (FOIA) requests and requests to ICE counsel and then demand that the IJ compel the documents through a court order or 42 Matter of Gregorio Cruz Perez, A , at (Imm. Ct. Los Angeles Feb. 12, 2009) (unpublished). 43 Samayoa-Martinez v. Holder, 588 F.3d 897, (9th Cir. 2009). 44 Matter of E-R-M-F- & A-S-M-, 25 I&N Dec. 580, 585 (BIA 2011). 45 See Legal Action Center, Challenging Matter of E-R-M-F- and A-S-M-: Warrantless Arrests and the Timing of Right to Counsel Advisals (Nov. 2, 2012), available at a-sm-_0.pdf; see also American Immigration Council, Motions to Suppress in Removal Proceedings: A General Overview (last updated Jan. 26, 2015) [Motions to Suppress: A General Overview], available at 46 Leslie, 611 F.3d at

15 by signing subpoenas. Make sure the IJ s ruling covers any non-public memoranda and policies that might exist Flores Settlement Agreement 48 The Flores Settlement Agreement establishes nationwide standards and policies for the detention, treatment, and release of all children in DHS and ORR custody. 49 The Flores Settlement requires, among other conditions: that a child be placed in the least restrictive detention setting appropriate to that child s age and special needs; that facilities detaining children are safe and sanitary and reflect concern for the particular vulnerabilities of children; that unaccompanied children are segregated from unrelated adults (and, if not possible, that the detention of the unaccompanied children will not last more than 24 hours); that a general policy of favoring release be implemented; and that attorney-client visits and facility visits be permitted. 50 In the event of an emergency or influx that prevents prompt placement of children in licensed programs, the Flores Settlement states that government policy is to make all reasonable efforts to place children in programs licensed by an appropriate state agency expeditiously. 51 Though many of the standards and policies of the Flores Settlement have been incorporated into current statutes and regulations, others have not. For example, the requirement under Flores to place children in state-licensed facilities, which is not in the regulations, is routinely violated. 52 This and other violations of the Flores Settlement may form an independent basis for termination. 2. Orantes-Hernandez Permanent Injunction The Orantes-Hernandez permanent injunction orders the government to protect the due process rights of detained citizens of El Salvador of all ages held in the United States. The permanent injunction was 47 IJs often resist granting discovery in removal proceedings, but efforts similar to those in Appendices 6.A, 6.B and 6.C (sample discovery motions and requests) are appropriate. There is a strong legal basis for why the material is essential to the case and impossible for respondents to obtain through diligent efforts. 48 For background on the Flores Settlement Agreement, see Lutheran Immigration and Refugee Service et al., Flores Settlement Agreement & DHS Custody (Dec. 18, 2014), available at 49 See Flores Settlement Agreement 12.A. Note that on February 2, 2015, a motion to enforce the Flores Settlement Agreement was filed in the Central District of California. It argues that DHS is violating the agreement by: maintaining a norelease policy for children apprehended with their mothers at the border; holding children in secure (lock-down) facilities that are not licensed to take care of dependent children; and subjecting children to unduly harsh conditions in CBP short-term detention facilities near the border. For additional information and the Memorandum in Support of Motion to Enforce Settlement of Class Action, see 50 See Flores Settlement Agreement A, 14, See id. 12.B-12.C. In a case pending in the New York City Immigration Court, ICE counsel has argued that exceptional circumstances excused DHS from promptly placing a child within 72 hours. As of January 2015, the IJ had not yet ruled on this issue. 52 See Manny Fernandez, Base Serves as Home for Children Caught at Border, N.Y. Times, April 28, 2012, available at Rebeca M. López, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody, 95 Marq. L. Rev. 1635, 1658, 1671 (2012). For an overview of DHS compliance with the Flores Settlement Agreement, see generally DHS Office of Inspector General, A Review of DHS Responsibilities for Juvenile Aliens (2005), available at See also DHS Office of Inspector General, CBP s Handling of Unaccompanied Alien Children (2010), available at 11

16 issued in The injunction was reaffirmed in 2007, in 2009, 54 and most recently in July Among other remedies, the initial injunction ordered the government, at the time of arrest and processing, to: advise Salvadorans about the right to a hearing, to consult with counsel, and to apply for asylum; make telephones available to class members at the time they are interviewed and charged with immigration violations; and provide class members with legal service lists. The federal court also imposed requirements about detention conditions for class members. The injunction requires that detention facilities provide class members with reasonable visitation, access to counsel, access to telephones (at least one telephone per every 25 detainees), access to confidential phone calls, the ability to receive and possess legal materials, access to writing materials, and access to detention center law libraries. Failure to comply with the Orantes-Hernandez injunction should be raised in a termination motion to assert a child s class membership and its benefits, and to further establish the government s disregard for other special protections in place for children (e.g., I-770 advisals for children, detention conditions specified in the Flores Settlement Agreement). 3. Hold Rooms Memorandum In 2008, CBP established a national policy on how it treats people held in short-term custody in its hold rooms memorandum. Advocates have not obtained a completely unredacted copy of the 2008 policy, but two organizations have stitched together a revealing compilation based on different partiallyredacted copies of the same document. 56 It is logical for you to ask through FOIA and through discovery requests for the policy (the 2008 version, or a later version if one exists) that applied on the date your client was held by CBP and to incorporate it into your termination motion. Highlights of the compiled 2008 memorandum are: 57 Feeding. Snacks and juice must be provided every four hours. A meal must be provided if the child is or is expected to be detained eight hours. Meal service is required at least every six hours after the first meal (and two out of three meals must be hot). A child must be given the next meal served, regardless of the amount of time in custody. CBP must record the times of all meals. Bedding. Clean bedding must be provided to every child who requires bedding. A blanket and mattress must be provided to any child held 24 hours. Every hold room must offer access to clean blankets and mattresses. I-770s. These must be provided to all children and explained in the child s language if the child is under 14 years old or does not understand the form. 53 See Orantes-Hernandez v. Meese, 685 F. Supp (C.D.Cal. 1988), aff d sub nom. Orantes-Hernandez v. Thornburgh, 919 F.2d 549 (9th Cir. 1990). 54 See Orantes-Hernandez v. Gonzales, 504 F. Supp. 2d 825 (C.D. Cal. 2007), aff d sub nom. Orantes-Hernandez v. Holder, 321 Fed. Appx. 625 (9th Cir. 2009). 55 The July 2014 order facilitates class counsel s access to detained Salvadoran children housed at a facility in Nogales, Arizona. See Order Denying Plaintiffs Application for Temporary Restraining Order; Construing Plaintiffs Application as a Motion to Compel Discovery; Granting Plaintiffs Motion to Compel Discovery, Orantes-Hernandez v. Holder, No. CV (C.D. Cal. July 17, 2014), available at 56 See Appendix 7 (National Immigration Forum and Catholic Charities of Newark s compilation of redacted versions of Hold Rooms Memorandum). 57 These provisions are found in Sections 6.8 and 6.24 of the Hold Rooms Memorandum. 12

17 Temperature. Every hold room must offer access to adequate temperature control and ventilation. 4. Trafficking Victims Protection and Reauthorization Act of 2008 The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) 58 provides numerous protections to UAC, including: the immediate transfer into the care and custody of the U.S. Department of Health and Human Services (HHS), specifically ORR; 59 ORR placement in the least restrictive setting; 60 access to legal counsel to the greatest extent practicable for all UAC who are or have been in ORR custody; 61 and the promulgation of regulations which take into account the specialized needs of UAC and address both procedural and substantive aspects of handling children s cases. 62 The government s failure to follow these statutory provisions may strengthen your termination motion. 58 Pub. L. No , 122 Stat. 5044, 235 (codified at 8 U.S.C. 1232) U.S.C. 1232(b)(2)-(3) (stating that each department or agency of the federal government shall notify HHS within 48 hours upon the apprehension or discovery of a UAC; and further, that the child shall be transferred to the custody of HHS not later than 72 hours after determining that the child is a UAC). 60 Id. 1232(c)(2)(A) (stating that [a] child shall not be placed in a secure facility absent a determination that the child poses a danger to self or others or has been charged with having committed a criminal offense. ). 61 Id. 1232(c)(5). 62 Id. 1232(d)(8). 13

18 III. SUPPRESSION OF EVIDENCE, PARTICULARLY EVIDENCE OF ALIENAGE In addition to analyzing potential grounds for termination, you must also independently analyze potential grounds for suppression. They are analytically distinct, but they are not mutually exclusive, and you need not have both to win your case. When considering a suppression motion, key questions include whether the evidence typically, the I ICE will attempt to use to establish your client s alienage was obtained in a fundamentally fair manner and whether the manner in which it was obtained undermines its probative value. Be aware that as a general matter, the CFR allows an IJ to receive in evidence any oral or written statement that is material and relevant to any issue in the case previously made by the respondent or any other person during any investigation, examination, hearing, or trial. 64 Although the Federal Rules of Evidence do not apply in immigration court, you can and should argue that deviating from them would be fundamentally unfair in your case. As discussed in Part V, pursuing a suppression strategy means avoiding admissions of alienage at any point, including when denying the NTA s allegations, moving to change venue, and filing a FOIA request. Fourth Amendment violations are addressed in Section III.A below and Section III.B then covers Fifth Amendment violations. Section III.C addresses other possible suppression grounds, and Section III.D ends with other strategies that may complement termination and suppression motions. It is common to raise several of these arguments in the same case, such as seeking suppression because the violation was egregious, it was widespread, or in the alternative because its use would violate the Fifth Amendment. A. Fourth Amendment Violations Suppression motions grounded in the Fourth Amendment typically rely on the violations being egregious, widespread, or both. Although prevailing on Fourth Amendment challenges arising out of conduct at the border may prove difficult, as discussed below, it is important nonetheless to assess their viability in your client s particular case wherever the apprehension occurred. 1. Egregious Fourth Amendment Violations A well-established method for suppressing evidence in immigration court is to prove that there was an egregious violation of your client s Fourth Amendment rights. 65 There are two independent requirements to satisfy: you must show that there was a Fourth Amendment violation and that the violation was egregious in nature. 63 See Appendices 8.A and 8.B (redacted I-213s) CFR (a), (b). 65 Although in Lopez-Mendoza the Supreme Court merely left open the question of whether suppression would be appropriate for an egregious Fourth Amendment violation, circuit courts considering the question since have concluded that it is. See, e.g., Oliva-Ramos v. Holder, 694 F.3d 259, 272 (3d Cir. 2012); Almeida-Amaral, 461 F.3d at

19 First, the issue of whether a Fourth Amendment violation happened frequently boils down to whether a seizure took place, which would require the government to demonstrate at least a reasonable suspicion of criminal activity (or probable cause, in the event of an arrest). 66 The test for whether a seizure occurred is whether a reasonable person would have felt free to leave. 67 In one unpublished decision, an IJ thoughtfully concluded that someone did not feel free to leave when two uniformed officers with holstered guns went directly up to him in a Greyhound bus station. 68 Similarly, a woman s Fourth Amendment rights were determined to have been violated when she was told to stop working, was not free to move around, had to ask for permission to go to the bathroom, could not use her cell phone, and some fellow workers were handcuffed during a workplace raid. 69 Even when you can show that a reasonable person would not feel free to leave, ICE may argue that your client consented to the stop. In that case, the IJ must analyze the totality of the circumstances, including the age, education, and intelligence of the person who purportedly gave consent. One difficulty in litigating these cases is the risk that an IJ or the BIA will make improper rulings to avoid suppression, such as where the IJ and BIA improperly held that an officer s scribble that consent was supposedly given was irrebuttable proof that consent was given. There, it took a Third Circuit appeal to overturn the IJ and BIA. 70 Second, assuming you can show that a seizure took place, you must show that the Fourth Amendment violation was egregious in nature. The egregious qualifier is nearly impossibly vague, and the definition of egregious varies among the circuits. Some classic arguments for why a violation was egregious include: it was racial profiling, 71 it was a sufficiently severe search or seizure, 72 or that it was conducted in bad faith (where the officer knew or should have known it was illegal). 73 This list is not exhaustive, and you should forge new ground to expand the list. Note that ICE has frequently failed when it has argued that an IJ should not suppress evidence where the egregious search was conducted by state police rather than DHS. The BIA rejected this argument in unpublished decisions in May and in July ICE also often fails when it argues that egregiousness cannot be found unless there are beatings or physical threats For an in-depth discussion of searches and seizures in the immigration context, see Motions to Suppress: A General Overview, supra, 15-25, See Florida v. Royer, 460 U.S. 491, 501, 514 (1983) (test endorsed by the plurality and a dissenter). 68 In re [Redacted], A [Redacted] (Imm. Ct. New York NY Oct. 3, 2007) (unpublished). 69 In re [Redacted], A [Redacted] (Imm. Ct. New Orleans LA May 24, 2012) (unpublished). 70 See Oliva-Ramos, 694 F.3d at See Orhorhaghe v. INS, 38 F.3d 488, 497 (9th Cir. 1994); Gonzales-Rivera v. INS, 22 F.3d 1441, (9th Cir. 1994). 72 Almeida-Amaral, 461 F.3d at 235, laid out the standard for this. Examples satisfying this standard include cases won by attorneys Manuel Rios in Seattle and Maureen Sweeney in Baltimore, in which DHS physically abused a client and an ICE officer engaged in sexually offensive touching of a client, respectively. For more information about these cases please contact Rex Chen at rexnyc@gmail.com. 73 See Lopez-Rodriguez, 536 F.3d at It is not yet clear whether every circuit court will agree that bad faith violations are egregious in nature, but it is worth arguing. For example, the Eighth Circuit does not believe bad faith acts are always egregious. See Garcia-Torres v. Holder, 660 F.3d 333, 337 n.4 (8th Cir. 2011). 74 See In re [Redacted], A [Redacted] (BIA May 7, 2009) (unpublished). 75 See In re Jairo Ferino Sanchez, A (BIA July 11, 2014) (unpublished). 76 See, e.g., Oliva-Ramos, 694 F.3d at 276 (refusing to limit suppression to activity that shocks the conscience); but see Escobar v. Holder, 398 Fed. Appx. 50, 54 (5th Cir. 2010) (unpublished) (limiting egregiousness to conduct similar to forced vomiting). The 15

20 For children apprehended at or near the border, a fact-intensive analysis often reveals that there was no Fourth Amendment violation because of the broad latitude officials have to conduct border searches. 77 Still, an outrageously intrusive search at the border requires reasonable suspicion. 78 If a child is caught at an inland checkpoint, engage in a fact-intensive analysis about whether the checkpoint is unreasonable, because the public interest in making the stops must outweigh the individual s constitutionallyprotected interests. 79 And be sure to perform the Fourth Amendment analysis if ICE apprehended your client in an interior raid or random arrest. 2. Widespread Fourth Amendment Violations Suppression is appropriate for widespread Fourth Amendment violations. 80 As with egregious Fourth Amendment violations, supra, the first step is to prove that a Fourth Amendment violation of any kind took place. The second step is to prove that the violation is widespread in nature. In the first federal circuit court decision to discuss this issue, the Third Circuit articulated important factors to consider in deciding whether a violation is widespread: whether there is a consistent pattern; the number of people affected; how frequently violations happen; and if there is a routine nature to the violations. 81 Helpful evidence can include: proof that officers are not trained adequately; proof that the government relies on outdated, inaccurate databases when planning raids; proof that officials are motivated by inflated arrest quotas; and displays of excessive force. Gathering evidence that a particular practice is widespread frequently involves collaboration with other lawyers, since there is a good chance that anything a child experiences is also being done to other children. Another method for gathering evidence is to file FOIA requests about the operation under which the illegal search was conducted. For example, FOIA requests and cross-examination of officers revealed arrest quotas for ICE s Fugitive Operations Teams (officers assigned to search for immigrants who have been ordered removed but who have not left the country), which gave credit for collateral arrests during home raids. In addition, reports and amicus filings that discuss the widespread nature of many illegal searches are excellent resources. 82 Eighth Circuit does not believe that the sanctity of the home automatically makes every illegal home raid egregious in nature. See Carcamo v. Holder, 713 F.3d 916, (8th Cir. 2013). 77 In Ramsey, 431 U.S. at 619, the Supreme Court held that reasonable border searches can be conducted without probable cause. Recent decisions reinforce the lower standard for border searches by focusing on whether reasonable suspicion is even required to conduct forensic analysis of laptops at the border. See, e.g., United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013). Cursory inspections at the border probably do not require reasonable suspicion. For an in-depth discussion of Fourth Amendment-based claims arising out of CBP misconduct, see Legal Action Center, Motions to Suppress in Removal Proceedings: Fighting Back Against Unlawful Conduct by U.S. Customs and Border Protection 3-14 (Nov. 13, 2013), available at 78 See United States v. Montoya de Hernandez, 473 U.S. 531, (1985) (alimentary canal search at the border). 79 See United States v. Martinez-Fuerte, 428 U.S. 543, (1976). 80 See Lopez-Mendoza, 468 U.S. at See Oliva-Ramos, 694 F.3d at For example, Stella Jane Burch, Good Reason to Believe : Widespread Constitutional Violations in the Course of Immigration Enforcement and the Case for Revisiting Lopez-Mendoza, 2008 Wis. L. Rev (2008) and Cardozo Immigration Justice Clinic, Constitution on ICE: A Report on Immigration Home Raid Operations (2009), available at 16

21 B. Fifth Amendment Violations Evidence also may be suppressed for violations of the Due Process Clause of the Fifth Amendment. 83 Claims under the Fifth Amendment do not depend on the illegality of an arrest, and they can cover misconduct that happened before or after an arrest. Therefore, this avenue of suppression may be more viable than the Fourth Amendment route for most children, particularly those who turned themselves in to CBP at the border. The Fifth Amendment mandates that [n]o person shall be... deprived of life, liberty, or property, without due process of law. 84 Individuals are entitled to procedural due process in removal proceedings under the Fifth Amendment. 85 In Matter of Toro, the BIA held that [t]o be admissible in deportation proceedings, evidence must be probative and its use fundamentally fair so as not to deprive respondents of due process of law as mandated by the [F]ifth [A]mendment. 86 Thus the key argument is that the use of the evidence obtained in violation of the Fifth Amendment is fundamentally unfair and that the evidence s probative value is undermined by the violation. 87 The procedural due process protections under the Fifth Amendment prohibit the government from using statements that are made involuntarily to support removal. 88 The use of admissions obtained from a respondent involuntarily to establish [removability] is fundamentally unfair. 89 To determine the voluntariness of a statement, courts consider the totality of the circumstances. 90 Note that in immigration proceedings, a statement is not involuntary under the Fifth Amendment unless the record demonstrates that the statement was induced by coercion, duress, or improper action by the immigration officer. 91 If the circumstances viewed in the aggregate reflect an atmosphere of coercion and intimidation, the evidence is considered to be provided involuntarily and cannot be used against the respondent in removal proceedings. 92 Examine BIA and your circuit court case law carefully to determine factors relevant to analyzing voluntariness. Be aware that in Matter of Garcia, the BIA held that the respondent s admissions regarding his alienage were made involuntarily because he was led to believe that his return to Mexico was inevitable, that he had no rights whatsoever, that he could not communicate with his attorney (his In addition, amicus briefs addressed the widespread nature of violations in Argueta v. ICE, 643 F.3d 60 (3d Cir. 2011) and Oliva-Ramos. 83 See Lopez-Mendoza, 468 U.S. at U.S. Const. amend. V. 85 Reno v. Flores, 507 U.S. 292, 306 (1993); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953); Bridges, 326 U.S. at 154; The Japanese Immigrant Case, 189 U.S. 86, (1903). 86 Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980). 87 See Sanchez-Llamas v. Oregon, 548 U.S. 331, 349 (2006) ( The Supreme Court requires exclusion of coerced confessions both because we disapprove of such coercion and because such confessions tend to be unreliable. ). 88 See Navia-Duran v. INS, 568 F.2d 803, (1st Cir. 1977) (holding that the rule against involuntary confessions is an essential element of due process); see also Bong Youn Choy v. Barber, 279 F.2d 642, 646 (9th Cir. 1960) (stating that [e]xpulsion cannot turn upon utterances cudgeled from the alien by governmental authorities; statements made by the alien and used to achieve his deportation must be voluntarily given. ). 89 Ramirez-Sanchez, 17 I&N Dec. at 505; see Garcia, 17 I&N at See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). 91 Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979). 92 See Navia-Duran, 568 F.2d at 811; Garcia, 17 I&N Dec. at

22 attempts to do so being actively interfered with), and that he could be detained without explanation of why he was in custody. 93 The BIA has also suggested that coercion or duress may inhere in circumstances where there is physical abuse, hours of interrogation, denial or food or drink, threats or promises, or interference with any attempt by the respondent to exercise his rights. 94 And the BIA has asserted that the government s failure to comply with regulatory requirements is relevant to analyzing voluntariness. 95 In a series of unpublished decisions, the BIA found that children s statements were properly suppressed under the Fifth Amendment where CBP interrogated them for nine hours, threatened to deport them to Mexico, and refused their requests to call a parent or lawyer. 96 Your child client s age and other vulnerabilities make it much more likely that an interaction with DHS will be experienced as coercive, and therefore render any admission made involuntary. 97 Do not be discouraged by case law developed in the adult context; here, as in many realms, children should not be held to the same standards as adults. Look to the Flores Settlement Agreement, the child-specific regulations listed above, the Hold Rooms Memorandum, and other reports documenting conditions of confinement to construct your Fifth Amendment suppression motion based on coercion. Consider reaching into other realms, like the case law governing coerced confessions of children in the criminal or juvenile delinquency contexts. 98 Practice Tip: Unreliability of I-213s in Children s Cases When you hold ICE to its burden of establishing alienage in removal proceedings, ICE typically produces your client s I-213, which generally is deemed inherently trustworthy unless it contains information that is inaccurate or obtained by coercion or duress. 99 As outlined in Part IV below, you must object to the I-213 s admission into evidence. Even if your suppression motion is not successful, you may nonetheless gain termination if you can convince the IJ that your client s I-213 is inherently unreliable I&N Dec. at See Ramirez-Sanchez, 17 I&N Dec. at See Garcia-Flores, 17 I&N Dec. at See In re Luis Miguel Nava, A , 2006 Immig. Rptr. LEXIS 8918, *3-*5 (BIA Nov. 29, 2006) (unpublished); In re Yuliana Huicochea, A , 2006 Immig. Rptr. LEXIS 8420, *3-*5 (BIA Nov. 29, 2006) (unpublished); In re Jaime H. Damian, A , 2006 Immig. Rptr. LEXIS 7890, *3-*5 (BIA Nov. 29, 2006) (unpublished); In re Oscar J. Corona, A , 2006 Immig. Rptr. LEXIS 7854, *3-*5 (BIA Nov. 29, 2006) (unpublished). In addition to finding these statements coerced, the BIA affirmed the IJ s independent finding that the children were detained solely on account of their Hispanic appearance and thus that the stop was illegal and suppression of the evidence obtained as a result of the illegal stop is required. In re Oscar J. Corona, 2006 Immig. Rptr. LEXIS, *3. Though it cited to a Ninth Circuit case addressing the Fourth Amendment, the BIA grounded this illegal stop suppression in the Fifth Amendment. See id. at *2-*3. 97 See Section II.B.2, supra. For example, a child may experience duress if interviewed in a small room inside a locked facility, failed to understand the interview s purpose or significance of his answers, and feared the DHS officer. Coercion also can arise from DHS s failure to comply with its own regulations. For example, failure to provide the I-770 before the child s interrogation may create or contribute to a coercive environment that renders admissions involuntary. 98 See, e.g., J.D.B., 131 S. Ct at 2403 (events which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens ) (quoting Haley v. Ohio, 332 U.S. 596, 599 (1948)); see also Graham v. Florida, 560 U.S. 48, 68 (2010) ( developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds ). 99 Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002). 18

23 (thus rebutting the presumption of reliability, such as where it contains inaccurate information), and thus fails to satisfy ICE s burden. 100 When challenging the reliability of a child s I-213, pay special attention to issues of source, lack of detail, and inaccurate information in addition to issues of involuntariness that formed part of your suppression motion. Challenge the use of the I-213 as unreliable when a source other than your client contributed to its creation. Particularly during the recent influx of children, some with adult companions, DHS may have completed the I-213 in whole or part through conversations with adults related or unrelated to your client. 101 Attack skeletal I-213s as unreliable, since detailed information specific to the child in question bears upon an I-213 s reliability. 102 Be aware that DHS requires its officers to include in-depth information on a child s I-213, including answers to questions on 12 topics not covered by the I-213 itself. 103 Last, consider whether the I-213 contains inaccurate information. Challenge its use if it does, since an I-213 is deemed inherently trustworthy and admissible to prove alienage only absent any evidence that [it] contains information that is inaccurate. 104 C. Other Novel Suppression Theories There are several ambitious theories for suppressing evidence currently being litigated. Even though they may be uphill battles in immigration court, they could potentially succeed in a circuit court appeal. Consider presenting them in your client s case even if there is no governing case law because a circuit court might rule favorably in someone else s case while yours is pending. 1. Suppression for Violating the Right to Consular Notification The Vienna Convention for Consular Relations and 8 CFR 236.1(e) require DHS to inform individuals of their right to call their consulate. In Sanchez-Llamas v. Oregon, the Supreme Court refused to suppress evidence in a state criminal proceeding based on a Vienna Convention violation. 105 However, the Supreme Court left open the possibility of suppression in removal proceedings because it arguably has supervisory authority over federal immigration proceedings, unlike state criminal proceedings For more detailed information on this approach, see Kristen Jackson, What to Do When DHS Alleges Your Client Is a Bad Actor: Challenging I-213s Created When Your Client Was a Minor, Immigration Practice Pointers: Tips for Handling Complex Cases 550 ( ed.). See also Appendix 9 (sample BIA brief regarding alienage). Also consult Matter of Mejia-Andino, where five members of the BIA would have found a seven year old s I-213 insufficiently reliable to establish removability. See Mejia- Andino, 23 I&N Dec. at (concurrence). 101 The BIA has held that DHS would be well advised to include as many indicia of trustworthiness regarding the information in [the I-213] as are practicable, such as the source of the information and the circumstances of the alien s apprehension. Gomez- Gomez, 23 I&N Dec. at 526. And the Ninth Circuit has recognized that I-213s are presumed inherently trustworthy and capable of establishing alienage in significant part because they are essentially a recorded recollection of a [DHS agent s] conversation with the alien. Espinoza v. INS, 45 F.3d 308, 308 n. 1 (9th Cir. 1995) (citation omitted). Indeed, I-213s are typically regarded as records of the subject s own statements that is, created from information out of the alien s mouth. Id. at See Matter of Ponce-Hernandez, 22 I&N Dec. 784, (BIA 1999); see also Mejia-Andino, 23 I&N Dec. at ICE, Detention and Removal Operations Policy and Procedures Manual, at Appendix (2006), available at Gomez-Gomez, 23 I&N Dec. at 524; Ponce-Hernandez, 22 I&N Dec. at Sanchez-Llamas, 548 U.S. at See id. at

24 2. Suppression for Any Fourth Amendment Violation You also should consider three arguments for expanding the rule for suppressing evidence to cover any Fourth Amendment violation (even violations that are not egregious). The first approach asks the court to apply the factors in Lopez-Mendoza, where the Supreme Court assessed then-contemporary conditions when deciding whether evidence should be suppressed in immigration court for any Fourth Amendment violation. 107 Today, over 30 years later, contemporary conditions of widespread DHS misconduct are very different from the limited INS wrongdoing in 1984 so that the likely social benefits of deterring unlawful government conduct outweigh the potential costs analyzed in Lopez Mendoza. 108 In addition, Lopez-Mendoza focused on how suppression was not appropriate for chaotic mass arrests. 109 If your client was not encountered during such an arrest, argue that the Supreme Court s concern that INS officers would have difficulty proving that they followed protocols during a mass arrest does not apply in your case. A second approach to expanding the suppression rule is the argument that removal proceedings today are quasi-criminal in nature, as the Supreme Court recognized in Padilla v. Kentucky, 110 such that the court should adopt the rule in criminal proceedings to suppress evidence for any Fourth Amendment violation, rather than the egregiousness standard. A third approach focuses on why the deterrent effect of the exclusionary rule is particularly appropriate where local police were the ones who acted illegally. Deterrence here can be strong because local police conduct a more manageable number of immigration arrests and no comprehensive regulatory scheme exists to otherwise discourage unlawful conduct. 111 Be creative in thinking through possible Fourth Amendment theories. 3. Suppression for Violating State Constitutional Protections State constitutions can provide more expansive protection from searches and seizures than does the United States Constitution. 112 An unresolved issue is the degree to which suppression is appropriate for violating state constitutional protections. In 2011, an unpublished BIA case rejected this theory without offering any analysis Suppression for Violating State Juvenile Confidentiality Laws Many states have laws strictly protecting the confidentiality of juvenile records and setting out careful procedures for outside parties to obtain copies of these documents and the information they contain. If ICE violates state juvenile confidentiality laws when obtaining evidence of alienage, file a suppression motion. This can happen when a child is in the juvenile justice system within the United States and someone within that system contacts ICE. Couch the state law violation in terms of a Fifth Amendment 107 See Lopez-Mendoza, 468 U.S. at See id. at See id. at Padilla v. Kentucky, 559 U.S. 356, (2010). 111 This issue is not well-developed in case law. The only circuit court to rule on the theory so far has rejected it. See Maldonado v. Holder, 763 F.3d 155, 163 (2d Cir. 2014) (rejecting argument that suppression is required for any Fourth Amendment violation where local police conducted the arrest). But the argument has merit and may win in other circuit courts. 112 See, e.g., State v. Hunt, 450 A.2d 952, 955 (N.J. 1982). 113 See In re [Redacted], A [Redacted] (BIA Feb. 18, 2011) (unpublished). 20

25 due process violation. Proceedings are fundamentally unfair when ICE uses evidence that it obtained by skirting state laws expressly designed to protect vulnerable youth. This argument has gained traction in at least one case arising out of the San Francisco Immigration Court. 114 You should research what the process is to obtain juvenile records in the relevant state and develop the factual record about how ICE obtained the evidence in your specific case. 115 This is also a strong strategy for keeping juvenile records out of immigration court when you are pursuing relief from removal. D. Civil Rights Strategies in Addition to Termination and Suppression Along with a motion to terminate or suppress, there may be tactical value in a civil lawsuit for money damages (including attorney s fees 116 ) or injunctive relief as well as in a civil rights complaint. Although an in-depth discussion of all potential causes of action is beyond the scope of this practice advisory, consider the following options when interviewing a child and preparing a case. These approaches can bolster your motions in immigration court and might strengthen your case for a favorable exercise of prosecutorial discretion (PD) U.S.C The Civil Rights Act holds individuals personally liable for offending conduct made under the color of State law. The United States, its agencies, and federal officials are not subject to Section 1983 liability. The violation of a federal right must be pleaded and proven. Section 1983 suits are typically one of two types: a suit against a local government entity (when the illegal conduct was pursuant to a policy, practice, or custom) 118 or a suit against the individual violator. Potential relief includes monetary damages and injunctive relief. Fees are available pursuant to 42 U.S.C One example of a claim brought under Section 1983 in the immigration context is Lyttle v. United States, et al., a case involving a U.S. citizen with mental disabilities who was unlawfully detained and deported to Mexico in See Appendices 1.A, 1.B, 1.C and 1.D for a sample motion presenting this argument. 115 See Vera Institute of Justice, Obtaining Juvenile Records: A Guide for Sixteen States and Washington, DC (February 2015), available at For readers who are not registered users of Vera Institute s Extra Legal online resource database, please the Vera Institute of Justice s Unaccompanied Children Program at CIJcoordinator@Vera.org to request a copy of this resource. 116 See Trina Realmuto and Stacy Tolchin, Requesting Attorneys Fees Under the Equal Access to Justice Act (June 17, 2014), available at 14_fin.pdf. 117 PD in this context refers to DHS s ability to make decisions given limited resources about who will be subject to immigration enforcement, and how. According to the head of DHS, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions including whether to settle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. Jeh Charles Johnson, Secretary, DHS, Policies for the Apprehension, Detention and Removal of Undocumented Immigrants, at 2 (Nov. 20, 2014). ICE is supposed to consider PD, in particular, for plaintiffs in non-frivolous lawsuits regarding civil rights or liberties violations. See John Morton, Director, ICE, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, at 2 (June 17, 2011). 118 See Monell v. Dep t of Soc. Servs., 436 U.S. 658, 690 (1978). 119 Lyttle v. United States, et al., No. 4: (M.D. Ga., filed Oct. 13, 2010); No (E.D.N.C. filed Oct. 13, 2010). See Noncitizens with Mental Competency Issues in Removal Proceedings, 21

26 The Federal Tort Claims Act (FTCA). The FTCA waives the United States sovereign immunity and authorizes suits for money damages based on federal employees negligent acts or omissions and, in some instances, their intentional misconduct. 120 FTCA claims may be appropriate to address reported mistreatment and abuses suffered by children at the border. 121 Bivens Actions. Bivens actions are damage suits against federal agents, in their individual capacity, for violations of constitutional rights. 122 Note that federal agencies are not subject to Bivens actions. 123 State Law. Consider a claim against state or local officials under state tort law or civil rights law. For example, county officials may be liable for unauthorized disclosure of confidential juvenile records to federal officials and others. DHS Office of Civil Rights and Civil Liberties (CRCL). The CRCL Office investigates civil rights and civil liberties complaints filed by the public regarding DHS (including its officers and facilities). Complaints can address detention conditions, DHS abuse/misconduct, use of force, denial of due process, discrimination, and more (last updated Aug. 2012) U.S.C. 1346(b), For a primer on FTCA claims, see Priya Patel, Federal Tort Claims Act: Frequently Asked Questions for Immigration Attorneys (Jan. 24, 2013), available at See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). 123 For information on Bivens actions and other claims against the government, see Trina A. Realmuto, Whom to Sue and Whom to Serve in Immigration-Related District Court Litigation (May 13, 2010), available at The CRCL complaint form can be found online. See File a Civil Rights Complaint, (last updated Sept. 23, 2013). You can also send a complaint documenting the issue, along with the child s name and A-number (the eight- or nine-digit unique personal identifier that DHS assigned to him or her), to CRCL at CRCLCompliance@hq.dhs.gov. 22

27 IV. PRACTICAL CONSIDERATIONS: INTERVIEWING CHILDREN, INFORMATION GATHERING, AND DECISION MAKING This Part covers interviewing strategies and techniques, working with your child client to determine if the government violated the law, and case strategy and decision-making with the child. 125 As a zealous advocate, you must develop at least a basic understanding of childhood cognitive development and abilities. You must take the time to build trust and rapport with your client in order to represent his or her stated interests. You must remind the government that children are different, and should be treated differently according to their age, development, ability, and experience. 126 A. Working with Children: Interview Strategies Consider the following when preparing to meet with and interview your client regarding a possible termination and suppression strategy Groundwork Consider setting a series of shorter meetings with your client in order to build trust and rapport. Children often are not prepared to explain the details of past trauma and abuse to a stranger at the first meeting. Shorter meetings correspond with children s attention spans and ability to concentrate. Be prepared to communicate in the child s best language or dialect. Bring in interpreters as needed; do not use the child s family or friends as interpreters. Remember that your duty of communication to your client includes addressing language issues. Do not interview the client in his or her best language without an interpreter unless you are fully fluent in the child s best language. 128 Be thoughtful about the interview setting. 129 Consider arranging your meeting space so that a desk is not between you and the child. Have child-friendly items, like crayons or stuffed animals, within the child s reach. Plan to meet with the child individually at first. Call in relatives or friends later and with the child s permission if the 125 See generally Lutheran Immigration & Refugee Services, Working with Refugee and Immigrant Children: Issues of Culture, Law & Development (1998) (Table of Contents and Introduction available at In limited ways, the Executive Office for Immigration Review (EOIR) has acknowledged that children are different. The BIA has noted that considerations and principles of special care should be accorded to children in removal proceedings. See Gomez-Gomez, 23 I&N at 524; see also Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, (9th Cir. 2007) (requiring EOIR to evaluate harm through the eyes of seven and nine year olds, the ages of the adult respondents when the key events occurred). EOIR has also noted that [i]ssues of age, development, experience and self-determination impact how child respondents navigate removal proceedings. See Michael J. Creppy, Chief Immigration Judge, U.S. Dep t of Justice, EOIR, Interim Operating Policies and Procedures Memorandum 04-07: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, at 2 (Sept. 16, 2004). 127 See generally ABA Comm n on Immigration, ABA Standards for the Custody, Placement and Care; Legal Representation; and Adjudication of Unaccompanied Alien Children in the United States IV.C (child-sensitive interviewing techniques), V.A (attorney role), V.C (establishing the attorney-client relationship) (Aug. 2004) [ABA Standards], available at See Lisa Aronson Fontes, Interviewing Clients Across Cultures: A Practitioner s Guide (2008). 129 Id. at

28 relatives and friends are needed to develop the legal strategy or claim but always remember that the child, not his or her family or caregiver, is your client. 2. The Interview Begin the interview with the child by clarifying roles and what the meeting is about. For example, explain the role of an attorney, the attorney-client relationship and privilege, and confidentiality. Explain that an attorney does not work for the government and cannot share information with the government. You may need to explain the removal process along with the roles of the IJ and the ICE counsel. Use language that meets the age or developmental needs of the specific child. 130 For example, you may need to explain what an international border is, that each government has rules about who can cross its border, and who can stay within its border. Consider using a map or drawing a picture. 131 Talk with your child client about how to answer questions. Children often say what they think adults want to hear, believing there is a right answer. Explain to your client that there is no right answer. Encourage him or her to use his or her own words instead of repeating what someone may have told him or her. Encourage him or her to express his or her own feelings, not those of others. Explain that it is okay to say I don t know or I don t understand instead of guessing or making up an answer. Be sure to assure your client that he or she can correct you because you may get something wrong or misunderstand an answer. Delve into the substance of the interview with a neutral topic, such as the child s biographical information. Try not to stick too rigidly to an intake sheet or scripted questions; instead, be present and responsive to the child, allowing the child to take an active rather than passive role in your conversation. This should facilitate a more open exchange of information. As you ask questions, explain why you need the information. For example, explain you are keeping notes so that you can remember the conversation and that the notes will not be shared with outsiders. Remain neutral and non-judgmental. Ask open-ended questions. For example, you said he..., can you tell me more about that? and... and then what happened? Encourage the child to tell you a narrative, rather than to provide short answers to pointed questions. 132 Avoid leading questions, as your client may be eager to please you and will try to guess the answer you want and give it. Use active and reflective listening, repeating back parts of the child s story. For example, It sounds like... Reflect back not only content, but the emotions your client seems to be experiencing. For example, You were really sad when your grandmother died, leaving you alone with your sister. Be creative with questioning. You may need to rephrase questions or ask the same question in a few different ways. Avoid compound questions. Continually check in with the child to confirm that he or she understands what you are saying. Do this by asking that the child repeat back what you said about the law or the next steps in the process. 133 Validate what the child is saying; 130 See Anne Graffam Walker, Handbook on Questioning Children: A Linguistic Perspective 1-7 (3d ed. 2013). 131 See ABA, Child Clients Are Different: Best Practices for Representing Unaccompanied Minors, Chapter 4 (2007), available at See Walker, supra, at See id. at

29 assure him or her that it is okay to feel scared, betrayed, isolated, and the like. Repeat back what you heard to verify that what you heard is correct. If the interview stalls, take a break and change topics. Stop the interview if the child becomes very upset or appears to be re-traumatized. At this point, the conversation should shift to reviewing the child s support system, talking about self-care, and safety planning if necessary. Have resources on hand to share with the child, if possible (for example, the names of therapists, support groups, and community centers). The child s school may have a counselor on staff. Ask the child if you can help him or her call one of the resources, especially if the child has no support system in place. If the child is suicidal, immediate action may be necessary. Familiarize yourself with the American Bar Association Model Rules of Professional Conduct and your own state bar s rules on when confidentiality can be breached in order to help the client After the Interview As the interview winds down, summarize what you have heard. Ask the child to repeat what he or she has learned. Discuss next steps and make a concrete action place. Be sure to leave time for questions. Especially for children who are recent arrivals to the United States, clarify the best method of communication: phone, cell phone, , or letters? Also explain the best way to reach you: call and leave a voice message, , or come during drop-in hours. Check in to see how the child is feeling emotionally and whether he or she has support at home. Call the day after the interview to see how the child is feeling. Remember that in most cases, connecting children with mental health services providers is advisable, both to help them process the emotions that arise in the interview process (especially if they have experienced serious trauma) and to help them handle the stress of being in removal proceedings. 4. Other Considerations Remember that a child s ability to participate in an interview depends on his or her age, health, development, cognitive processes, education, language ability, and background. Trauma dramatically affects the development of a child s brain and may account for inconsistencies in a child s stories or narrative. 135 Trauma can arise from chaotic social conditions, violence, lack of protection and caring by adults, nutritional deficits, and treatment related to physical or mental disabilities. In turn, remember that the child, particularly an older youth, is often capable of understanding the processes and legal strategies you present. Explain the options, advantages, and disadvantages in a few different ways. For example, use diagrams or charts to walk through what happens when. 134 See Model Rules of Prof l Conduct r. 1.6(b)(1), available at _confidentiality_of_information.html; see also ABA Comm. on Ethics & Prof l Responsibility, Informal Op (1983) (discussing disclosure of client s intent to commit suicide). 135 See National Child Traumatic Stress Network, Complex Trauma in Children and Adolescents 7 (2003) (outlining biological and cognitive effects of childhood trauma), available at 25

30 B. Determining Whether DHS Violated the Law: Gathering Information 1. Interview the Client Although some children can tell you how they were mistreated, others may not know what their rights are and therefore cannot identify how they were wronged. Ask specific, detailed questions, using the interview techniques outlined above. Be sure to cover all relevant topics, including the child s apprehension and interrogation (at the border or via internal enforcement), the child s treatment while in DHS and ORR custody (including documents the child may have signed or been given), and what has transpired to date in immigration court (presuming the child has gone to master calendar hearings unrepresented). Develop intake materials that cover not only eligibility for immigration relief, but also the important topics relevant to suppression and termination Interview Witnesses Sometimes, the improper conduct took place in front of other people whom you can interview. For example, CBP might have failed to give warnings to an entire family so other family members can explain what they saw, or ICE might have raided a home when others living in the apartment were there. Parents and ORR sponsors can be important witnesses on NTA service issues (including whether ICE served the NTA at a prior hearing, where the child appeared pro se). Consider getting signed declarations in case witnesses become unavailable later, and object if ICE tries to deport a key witness. 3. Examine the I-213 and Other Key Documents DHS often mistakenly completes the I-213 such that it contains information not related to the client. Check your child client s I-213 for such errors (for example, whether it refers to a girl as he ). See if it describes information about someone else as if DHS copied details from someone else s I-213. Review the I-213 to see if it illogically says the child refused to answer any questions but includes personal information presumably from the child. Check the various dates on the I-213 to see if DHS precompleted portions before the interview. Do the same careful analysis of the child s I-770 and NTA. You may need to obtain the I-213 from ICE via a FOIA or other means (discussed below), or obtain it in immigration court once you hold ICE to its burden of establishing alienage. 4. Check for Forged Documents In 2014, the Northwest Immigrant Rights Project filed a lawsuit against ICE counsel Jonathan Love for allegedly forging a document that stated it was signed in 2000, but that appeared on a DHS form that did not exist until after This example serves as a reminder to be diligent in your document review. Try to obtain metadata, which includes computer data that would show when a file was last edited and which user created it, using document production strategies outlined below. 136 See Appendix 10 (suppression/termination intake questions). 137 Lanuza v. Love, Case No. 2:14-cv (W.D. Wash. filed Oct. 23, 2014). 26

31 5. Pursue Document Production A comprehensive plan to seek document discovery can be very productive. Possible steps include asking the IJ to compel ICE to produce the A-file 138 and relevant documents, asking ICE counsel to produce documents as a matter of fairness, making a limited track 3 FOIA request, 139 making broad FOIA requests (CBP, ICE, ORR, U.S. Citizenship and Immigration Services (USCIS)), and asking the IJ for subpoenas, if you need a certain witness for your case. 140 Be very careful in your requests for evidence through FOIAs and other methods to not inadvertently concede alienage or provide information on your client s place of birth, because ICE may argue that the information could be used as independent evidence of alienage. If the child was in ORR custody, request the child s ORR file. 141 In the Ninth Circuit, a specific statute has been held to require the government to produce a copy of the respondent s A-file because it contains evidence of the respondent s entry and presence. 142 C. Pros, Cons, and Case Strength: Advising Your Client and Reaching a Decision It is critical to explore with the child the advantages and disadvantages of pursuing a suppression or termination motion, and to make the decision about strategy in concert with the child. 1. Advantages One key advantage of pursuing termination is if the motion succeeds, the IJ will dismiss proceedings and not enter a removal order. In the case of successful suppression motions, some or all evidence of alienage may be excluded or given less weight for the duration of the removal proceedings. Some suppression motions do lead to termination; for example, where ICE s only evidence of alienage is successfully suppressed. For a child with no easy path to qualify for legal protection (for example, if the child is about to age out of eligibility for relief), this strategy may be his or her only defense against 138 Your client s A-file is DHS s official file for all of your client s immigration records. It is identified by your client s A-number. See A-Files Numbered Below 8 Million, (last updated July 7, 2014). 139 USCIS uses a three-track system to process FOIA requests. Track 3 is an accelerated track for cases involving individuals who are to appear before an immigration judge and want to obtain a copy of their A-file. See FOIA/Privacy Act Overview, (last updated Aug. 25, 2014). 140 See Appendices 6.A, 6.B and 6.C (sample discovery motions and requests). Additional resources include Geoffrey Heeren, Shattering the One-Way Mirror, 79 Brook. L. Rev (2014); Rex Chen and Wayne Sachs, Document Production: Getting What s Rightfully Ours, Immigration Practice Pointers: Tips for Handling Complex Cases 616 ( ed.); New York University Immigrant Rights Clinic, Understanding Oliva-Ramos v. Attorney General and the Applicability of the Exclusionary Rule in Immigration Proceedings (Nov. 30, 2012), available at American Immigration Council, Dent v. Holder and Strategies for Obtaining Documents from the Government During Removal Proceedings (June 12, 2012), available at 12.pdf. 141 Note that ORR has a new non-foia method for getting children s case file information. See Requests for UAC Case File Information, (last updated April 14, 2014). One practitioner received case file information through this ORR non-foia avenue in about 20 days. 142 The statute is 8 USC 1229a(c)(2)(B) [INA 240(c)(2)(B)] and it is discussed in Dent v. Holder, 627 F.3d 365, (9th Cir. 2010). Attorneys in Los Angeles have received copies of children s A-files after submitting simple Dent requests prior to entering pleadings. 27

32 deportation. Even a strong and deserving asylum claim might unfairly lose if the case is randomly assigned to an unfavorable IJ. 143 Another advantage is termination and suppression motions generally slow down the processing of a case due to the extra steps of producing alienage evidence, briefing of the argument by both sides, IJ consideration of the argument, and possible hearings on the evidence. Given the serious concerns that children on expedited dockets are not being given enough time to prepare their cases, 144 termination and suppression strategies are a legitimate method to slow down the proceedings to a fairer pace. Slowing down the proceedings can also provide critical time that children may not otherwise have to obtain predicate orders, certifications, and other documents needed for relief, such as for Special Immigrant Juvenile status (SIJS) or U nonimmigrant status (U visa). Pursuing suppression or termination motions before seeking relief from removal also forces the government to do its job and satisfy its burden of proof. This is a perfectly valid way to help protect the child s due process rights, and preserve important issues for appeal. It holds the government accountable for its actions, which hopefully has some deterrent effect on future improper government conduct. In addition, a strong termination or suppression motion may result in ICE offering a child PD. Finally, an IJ may exclude certain evidence but still find the government met its burden of proof based on other admissible evidence, such as through the independent source rule (see page 32 Practice Tip: Independent Evidence vs. Fruit of the Poisonous Tree ). It can be helpful that certain questionable excluded evidence cannot be used when the child seeks relief from removal later in the hearing. 2. Disadvantages The main disadvantage to pursuing these motions is that a successful termination or suppression motion alone does not confer legal status at the end, as opposed to winning an asylum case or any other form of legal status. It can also be lengthy and time-consuming for the child, particularly if the IJ denies your motion and you appeal, or the IJ grants your motion and ICE appeals as described in Section V.D below. The time spent litigating these motions may weaken or foreclose forms of relief. For example, a child may age out of eligibility for SIJS or the ability for file for asylum with USCIS. You might also be concerned that a particular IJ or ICE counsel will be upset and improperly vindictive later in the case when the child might ask for relief from removal, including PD. It is hard to foresee whether your zealous advocacy will improperly frustrate the IJ or ICE counsel or have the result of earning their respect to the benefit of your client on other fronts. Attorneys have obtained dismissal of proceedings to allow for relief before USCIS after filing a termination motion based on NTA service, and, as mentioned previously, have secured a grant of PD after filing a strong termination motion. Regardless, do not let concerns about your reputation with ICE counsel or the IJ deter you; you owe duties to your client that rise above your personal preferences. 143 See generally Jaya Ramji-Nogales, Andrew I. Schoenholtz & Philip G. Schrag, Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform (2009). 144 Various media outlets have reported on the fast-tracking of children s removal cases. See, e.g., Lomi Kriel, Expediting Child Immigrant Cases Disrupts Docket, Due Process, Judge Says, Houston Chronicle, Aug. 6, 2014, available at Odette Yousef, Lawyers Fear Speedy Deportations Harm Minors (WBEZ radio broadcast Aug. 27, 2014), available at 28

33 3. Analyzing Case Strength and Determining the Best Course of Action Review all the documentation, records, reports, and interview notes with the child to assess the strength of making a motion. What evidence do you have? What is lacking? Can you get it? Analyze your client s case in light of the BIA and applicable circuit court case law and the client s facts, but remember that negative case law can be distinguished if it was developed in the context of adult cases. Familiarize yourself with the positions of your immigration court, the assigned IJ, and ICE counsel. For example, what is the likelihood of success on the merits of a gang-based asylum claim in your jurisdiction? If your client appears eligible for SIJS, what is the likelihood of success in your state juvenile court and at your local USCIS office? Given that litigating a termination and suppression strategy may prolong the course of removal proceedings, it is important to reassess your strategy from time to time. 4. Decision-Making and Forming a Plan with Your Client Communicate clearly with the child about the advantages and disadvantages of pursuing a suppression or termination motion. Discuss the strengths and weaknesses of the motion, as well as the strengths and weaknesses of potential claims for relief from removal. Discuss practical timelines. Provide a road map for your client of all possible options so that he or she can make the best decision possible with your assistance. 145 Remember that the stated or expressed wishes (not best interests ) of your client direct the case. 146 It is your duty to represent your client s expressed wishes, even if they conflict with those of the parent or ORR sponsor. 147 Once a strategy is determined, continue to check in with the child to see if the strategy continues to make sense. If your client is too young or unable to state her wishes for representation and case strategy, you must advocate for all legal interests preserving any and all immigration remedies available See ABA Standards, supra, III.F ( Children have the right to participate in all decision-making processes that affect their lives. Specifically, allowing a Child meaningfully to participate in decision-making means ensuring that this process must (i) be free from pressure on and manipulation of the Child either to reach a certain decision or to make a decision at all; (ii) account for the Child s evolving ability to understand situations and respond to advice and guidance; and (iii) provide the Child with sufficient and understandable information to allow the Child to make an informed decision in a form that the Child can understand. ). 146 See ABA Standards, supra, V.A.1; see also Kristen Jackson, Meredith Linsky & Elissa Steglich, Representing Children in Removal Proceedings: Ethical and Practical Issues, Immigration Practice Pointers: Tips for Handling Complex Cases 559 ( ed.). 147 ABA Standards, supra, V.A Id. 29

34 V. PROCEDURAL STEPS FOR TERMINATION AND SUPPRESSION STRATEGIES This Part provides a step-by-step action guide. It covers: setting the case up for termination and suppression (including at the initial master calendar hearing and motion filing); making out a prima facie case; handling evidentiary hearings and the IJ s decision; pursuing relief while pursuing dismissal; dealing with appeals; and tips for what to do if your client fails to appear for an immigration court hearing. With this Part and in consultation with local experts who can discuss specific details about how your IJ and ICE counsel behave you will be prepared to pursue these important strategies for your client. A. Setting Up the Case for Termination and Suppression Your overall termination and suppression strategy must inform everything you do, from your client s initial master calendar hearing forward. Missteps early on, such as conceding proper NTA service or the factual allegations and charges on your client s NTA, might derail even a strong motion. Below, both the client s initial master calendar hearing and the preparation and filing of your motions is discussed. 1. The Initial Master Calendar Hearing Your client s first master calendar hearing is a crucial point in the case. 149 Your positioning the case for suppression or termination begins with a thorough client interview and review of the immigration court s file for materials that the government might try to use to prove alienage. If the court held a hearing before you represented the child for example, a hearing at another immigration court that resulted in a change of venue to your court 150 it is essential to find out what happened, which often includes listening to the recording of what was said on the record in court. Ideally, you would have taken steps to get a copy of the client s A-file to estimate what materials ICE counsel might offer to prove alienage. Consider whether and how to ask the IJ to compel ICE counsel to produce documents, including whether to commit to making a FOIA request. 151 During a client meeting before the initial master calendar hearing, present the child with the game plan for the hearing, discussed below, in a way that the child can understand. Ideally, create a cheat sheet for 149 If your client s master calendar hearing is fast approaching and you do not have time to fully analyze the case, consider filing a motion to continue, or attending the hearing and asking for attorney preparation time. Just be certain not to address NTA service or alienage in the motion or during that hearing. 150 Note that unlike an adult, a child is not required to address NTA service or plead to the NTA s factual allegations and charges in her motion to change venue. Compare David L. Neal, Chief Immigration Judge, U.S. Dep t of Justice, EOIR, Operating Policies and Procedures Memorandum 07-01: Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, at 8 (May 22, 2007), with Immigration Court Practice Manual, Chapter 5.10(c) (June 10, 2013). But if your client already conceded proper NTA service or entered pleadings, despite valid termination or suppression grounds, you should file a motion to set aside the pleadings. 151 If you plan to hold ICE to its burden of establishing alienage, do not include information on alienage in your client s FOIA request. If you cannot get FOIA results without providing information related to alienage, get creative. See, e.g., Motions to Suppress: A General Overview, supra, 2 ( If the agency requires your client s country of origin to process the application, note that the country provided is that alleged in the NTA. ). 30

35 yourself and run through a mock master calendar hearing with your client. 152 If you are challenging the adequacy of the NTA, first advise the child that he or she should not bring a caretaker or ORR sponsor to the hearing. 153 You might need to explain this to the adult also. This might be critical if you will challenge service of the NTA and worry that the IJ will allow ICE counsel to cure service in court that day by serving the adult. It can also help if ICE must prove alienage and you anticipate that the IJ will attempt to ask the adult about the child s alienage. Second, if you are holding ICE to its burden of establishing alienage, advise the child not to answer any questions about where he or she was born, his or her citizenship or nationality, or what country he or she left to travel to the United States. Third, alert him or her that your termination and suppression strategy may surprise and perhaps even upset the IJ, ICE counsel, or both. Let him or her know that if this happens, it does not mean that he or she has done anything wrong. At the hearing, you will enter your appearance, your client will confirm his or her address, and the IJ will confirm that each party has a copy of the NTA. The IJ will then ask if you concede proper NTA service. Do not concede proper NTA service unless you know that service was perfected exactly according to the governing statute, regulations, and case law (discussed in Section II.A.2 above). 154 If you do not concede service, the IJ should ask ICE to prove proper service. Be sure to resist any ICE attempt to cure improper service by trying to serve it belatedly in court. Receive ICE s evidence of service (typically in the form of the NTA s certificate of service) and request time to brief the issue of defective NTA service and its impact on the proceedings. At this point, the IJ may give you a briefing schedule and a new hearing date. Alternatively, the IJ may choose to consolidate all preliminary issues and move forward with NTA pleadings. If so, and you are holding ICE to its burden of establishing alienage, state this and deny the NTA s factual allegations and charge of removability. 155 Refrain from identifying or addressing relief from removal, as relief becomes legally relevant only upon a finding of removability. The IJ should then require ICE to provide evidence of alienage which, most likely, will be a Form I Object to the admission of this evidence and alert the IJ that you plan to file a termination motion or a suppression motion, or both, identifying all known grounds for the motion. 157 Ask the IJ to set a deadline for ICE 152 See Appendix 11 (sample master calendar hearing cheat sheet). 153 This may anger the IJ. But be aware that there is no legal obligation that the sponsor attend. The ORR sponsor agreement addresses the sponsor s duty to ensure the child s presence not the adult s own at the child s removal proceedings. See ORR, Division of Unaccompanied Children s Services, Sponsor Care Agreement (Sept. 9, 2014), available at And indeed, IJs are forbidden from assuring a sponsor that DHS will not take enforcement action against him or her if he or she attends a hearing. See Brian M. O Leary, Chief Immigration Judge, U.S. Dep t of Justice, EOIR, Docketing Practices Relating to Unaccompanied Children Cases in Light of the New Priorities, at 2-3 (Sept. 10, 2014) [O Leary Memorandum]. 154 You might also consider, as a general practice, requiring DHS to prove up proper NTA service in every case regardless of whether service was proper in any particular case. 155 Note that some ICE counsel may respond that you are behaving unethically by contesting alienage if you know your client was born outside the United States. This is a frivolous argument, and misunderstands ICE s burden of proof. ICE, not your client, is required to prove alienage. And you are ethically required to zealously advocate for your client, which in many instances includes holding ICE to its burden. Similarly, resist any ICE attempts to recuse you from a case for pursuing an agenda. 156 Given the large number of juvenile cases and the requirement that many of them (the priority cases EOIR outlined in the O Leary Memorandum, supra) must be scheduled for a first master calendar hearing within 21 days of NTA filing, it is very possible ICE will not have the A-file in time for the first hearing. If ICE has no evidence of alienage to substantiate the NTA, ICE cannot meet its burden of proof. You can ask that proceedings be terminated on the spot. 157 See Appendix 12 (evidentiary objections cheat sheet). 31

36 counsel to submit all evidence of alienage. Ask for a briefing schedule and an evidentiary hearing. 158 Consider moving for an order from the IJ to compel ICE s production of a copy of the A-file, or be sure that the briefing schedule accommodates any pending FOIA requests. Practice Tip: Independent Evidence vs. Fruit of the Poisonous Tree ICE may try to meet its burden of establishing alienage by submitting other documents such as material from your client s ORR reunification packet or your client s juvenile delinquency records or background check results, in addition to the I-213. Argue to the IJ that this additional evidence is fruit of the poisonous tree of the original violation, so it is similarly tainted and is inadmissible. 159 If ICE obtains evidence of alienage from sources independent of the violation at issue in the suppression motion, that evidence may be admissible. 160 However, ICE has the burden of showing that such evidence was gathered independently of, or sufficiently attenuated from, the alleged violation. 161 Hold ICE counsel to this burden if he or she asserts the independent evidence exception. Argue that there is no indication that the information in the juvenile delinquency records, background check results, or ORR documents, for example, was obtained independent of the original violation. 2. Motion Preparation and Filing With your client s initial master calendar hearing behind you, you can now turn to preparing a strong motion for termination and/or suppression. Evidence review, legal research, and motion and declaration drafting and review can take substantial amounts of time at least the first time around. In advance of writing your motion, examine all of ICE s evidence on your own, especially evidence of NTA service and any deficiencies or errors in the I-213. Spend sufficient time with your client, using child-sensitive interviewing techniques to learn his or her full story related to the evidence. Be sure to interview other people with relevant knowledge as needed (for example, interview ORR sponsors on NTA service or siblings or others present at the border when DHS apprehended your client). Reserve time to perform additional research in light of ICE s evidence. Using this practice advisory as a jumping-off point, ensure you have researched all issues that might lead to termination of your client s removal case and/or suppression of government evidence. Become familiar with all relevant BIA case law and governing cases from your circuit. 162 When sitting down to write the motion, keep at the forefront of your mind that you are creating your administrative record for appeal with each document you file in court, and be cautious when using sample motions. Specifically, always confirm that your motion has the most up-to-date and relevant 158 Although the BIA has held that a separate hearing on a motion to suppress is not required, see Matter of Benitez, 19 I&N Dec. 173, 175 (BIA 1984), make this request nonetheless, as post-benitez case law has required testimony to establish a prima facie case. See Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988). 159 See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). 160 See Segura v. United States, 468 U.S. 796, 805 (1984); United States v. Guzman-Bruno, 27 F.3d 420, 422 (9th Cir. 1994). 161 Lopez-Mendoza, 468 U.S. at For some relevant law, see In re Oscar J. Corona, A , 2006 Immig. Rptr. LEXIS 7854, *3-*5 (BIA Nov. 29, 2006) (unpublished) and Appendices 13.A, 13.B and 13.C (additional BIA and IJ decisions on termination and suppression issues for children). 32

37 case law, and that the facts are true to your client. Note that BIA case law requires your client to make out a prima facie case for suppression before ICE is required to come forward with evidence to justify the manner in which it obtained evidence that is, you must provide evidence which, if ultimately true, would form the basis for excluding the evidence. 163 Though you might choose to challenge this legal requirement, nonetheless construct your motion so that you can make out this prima facie case in the event the IJ rules against your challenge. Draft the motion s supporting affidavits in your client s (or other witness s) voice, keeping the information simple and easy to testify to, yet sufficient to establish a prima facie violation. Be sure the final versions include certificates of translation if needed and are verified by the declarant. Finalize your motion and supporting materials including a witness list, if the prima facie stage and merits stage are consolidated according to the requirements of the Immigration Court Practice Manual (ICPM), serve copies on ICE, and file the originals with the court by the deadline the IJ or ICPM set. 164 B. Your Motion Playing Out in Court: Evidentiary Hearing and IJ Decision Now that your motion is on file, and presuming ICE has filed its opposition to your motion, you need to prepare yourself, your client, and other witnesses carefully for your upcoming evidentiary hearing, should you be granted one. You should be ready to establish your client s prima facie case, handle whatever evidence or witnesses ICE presents, and work with whatever decision the IJ issues on your motion. Keep in mind that some IJs might bifurcate the proceedings into an initial hearing on your prima facie case, and a subsequent hearing requiring ICE to produce its witnesses only if you have made out your prima facie case. Be certain you understand how the IJ intends to proceed so you can prepare accordingly. 1. Prima Facie Case Prepare carefully for the upcoming hearing on your motion. Review ICE s opposition to your motion in detail, anticipating what arguments might appeal most to the IJ. Consider replying to ICE s opposition. Though the ICPM does not specifically contemplate replies, it does not forbid them. 165 Just be certain to meet the pre-hearing filing deadlines, or file a motion to allow late filing to accompany your reply if you cannot. If ICE did not file an opposition, be prepared to argue that the IJ should grant the motion due to non-opposition. 166 Also be prepared to argue against ICE s filing its opposition or any evidence (aside from evidence on cross-examination used solely to impeach your client) on the day of the hearing. 167 Also consider filing motions in limine to address preliminary evidentiary issues to protect your client, including motions asking that the hearing and materials not be allowed to establish alienage, that alienage issues are not relevant to the termination or suppression issues, and that ICE cannot question 163 See Barcenas, 19 I&N Dec. at See ICPM 3.1(b) (deadlines); 3.2 (service); 3.3(a) (certificates of interpretation); 3.3(c) (formatting, including witness lists and motions). 165 See ICPM 5.5 (motion briefs). 166 See ICPM 5.12 ( A motion is deemed unopposed unless timely response is made. ). 167 See Appendix 14 (sample brief regarding objections to evidence not submitted by the court s filing deadline). 33

38 your client on alienage and then use the responses to establish alienage. 168 It is essential that you meet with your client and any witnesses who will testify at the hearing to do a full practice session most effectively, with colleagues playing the IJ and ICE counsel. 169 In particular, practice your client s avoiding answering incriminating questions (especially questions related to alienage) since these admissions might derail your motion. At the beginning of the hearing, consider asking the IJ if you can invoke on your client s behalf the Fifth Amendment right to remain silent in the face of questions whose answers may incriminate him or her though your client should be prepared to do this on his or her own if need be. 170 Put your client on the stand for your brief direct examination as practiced, and then make him or her available for crossexamination. Object to improper questioning or use of evidence by ICE, keeping in mind again that you are creating a record for appeal should the IJ deny your motion. Be very familiar with the case law on what is needed to make out a prima facie case on your motion, and invoke it as needed. At the conclusion of the prima facie portion of the hearing, the IJ may make a decision or he may take this first step of the motion under submission. Presuming the IJ finds that your client has established her prima facie case, the burden then shifts to ICE to justify the manner in which it obtained the evidence. 171 If, however, the IJ denies your motion for failure to establish a prima facie case, please consult the discussion below on appeals (Section V.D) and on pursuing relief while pursuing termination (Section V.C). 2. ICE s Attempt to Meet Its Burden If the IJ shifts the burden to ICE, ICE may attempt to meet its burden by providing testimony of the agent who took significant actions on your client s case (for example, apprehended your client, interrogated your client, created and served your client s I-213, or the like). 172 You should expect ICE to make the agent available the day of the evidentiary hearing, as evidenced by a witness list ICE should file in advance of the hearing. You should object on the record to any ICE efforts to obtain a continuance to make the agent available in light of the prima facie finding, or to attempts to make the agent available telephonically. Note, however, that after the prima facie finding the IJ is likely to give ICE a continuance 168 If ICE counsel argues that he or she can question your client at the hearing and use your client s responses to establish alienage, be sure to rely upon case law that requires ICE to come forward with initial admissible evidence of alienage before testimony can be used. See Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971) ( Upon presenting evidence that the respondent is an alien, the Service may call upon him to testify and may use his testimony to find that deportability is established. (citation omitted)). 169 See Appendix 15 (sample direct and cross examinations). 170 For arguments related to your client s Fifth Amendment right to refuse to answer certain questions in immigration court proceedings, including resisting an adverse inference from such a refusal, see Appendix 9 (sample BIA brief regarding alienage). 171 See Barcenas, 19 I&N Dec. at Note that ICE might see the writing on the wall the defects in its own initial evidence and attempt to introduce new evidence of alienage on the day of the evidentiary hearing. Object vigorously to this tactic, as ICE, just like your client, is required to follow the ICPM s rules on submission of evidence in advance of a hearing date. See ICPM 3.1(b)(ii)(A); 8 CFR (c) ( If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived. ). The exception for impeachment evidence does not cover additional evidence of alienage, since impeachment evidence is offered to dispel your client s credibility, not to establish the underlying truth of any particular fact. See, e.g., Limbeya v. Holder, 764 F.3d 894, 898 (8th Cir. 2014) ( impeachment evidence is not offered for the truth of the matter asserted ). If the IJ resists, argue the fruit of the poisonous tree as outlined above. 34

39 to make the agent available to testify. In advance of agent testimony, be sure to review all documents relevant to your motion, including any statements or documents prepared by the testifying agent. During the hearing, if ICE attempts to rely on additional documents to meet its burden, assert that your client has a due process right to cross-examine the author of the document and sources of information in the document itself, as well as have a reasonable opportunity to review the documentary evidence. At the close of ICE s presentation of its case, be prepared to make a short closing argument on your motion. 3. The IJ s Decision on the Motion The IJ may issue a decision on the day of the evidentiary hearing, or he may take the motion under submission. In the former scenario, the decision is likely to be oral. If so, be certain to ask for clear findings on your clients prima facie case. Also ask for clear findings on the ultimate decision to grant or deny the motion and to terminate the proceedings. Take very detailed notes of the decision and ideally request from the court clerk a copy of the oral decision on CD. If the IJ decides to take the matter under submission, it is important to pay close attention to the mail or to a forthcoming decision date. Because appeal deadlines are very tight (30 days from the decision, as outlined in Section V.D below), you must learn of the IJ s decision very soon after he or she issues it and you must be ready to take action immediately whether filing an appeal, preparing to fend off an appeal, or choosing to pursue immigration relief before the IJ, all discussed below. C. Pursuing Relief While Pursuing Suppression and Termination Whether and when to pursue immigration relief while also pursuing a termination and suppression strategy is a complex matter. As noted in Section IV.C above, it is something you must discuss in detail with the child at the outset of the case, as well as while the case develops. In many instances, you will be pursuing termination or suppression because your client is not eligible for immigration relief or has a weak claim to relief. But be mindful that even if your client does not initially appear to qualify for relief, you must reassess this throughout your representation. As a general rule, you should be safe taking steps to pursue immigration relief outside of USCIS and immigration court contexts. For example, you might file a state court dependency action and obtain findings for SIJS (as there is little risk ICE would examine that court file for evidence of alienage, for example), obtain a U visa certification for your client, or work with experts to develop country conditions materials or create a psychological evaluation in support of an asylum claim all while pursuing termination or evidence suppression. Even filing applications for relief with USCIS may be appropriate provided that your strategy does not depend upon challenging ICE s evidence of alienage (for example, if your motion relied upon defective NTA service or a regulatory violation regarding your client s I-770). However if you are challenging ICE s evidence of alienage, then it is safest to refrain from submitting evidence of your client s alienage to USCIS (in the context of SIJS, U visa, asylum, or other 35

40 relief) until your termination or suppression motion is granted (and any appeal resolved, as noted below). Otherwise, ICE may attempt to use your submitted evidence to establish alienage. 173 This is also true if you are considering PD with ICE. Evidence and information that may be relevant to a request for PD such as length of time in the United States, identity documentation, acknowledging manner of entry may be damaging to your termination or suppression strategy. 174 If you have pursued your motion to its end before the IJ and the IJ denies the motion, you can consider an interlocutory appeal. 175 Barring an interlocutory appeal and a corresponding stay of removal proceedings, you must make a strategic decision regarding relief, that is, whether: (1) to go on to pursue relief in ongoing removal proceedings (with the risk this may moot out your appeal of the IJ s denial of the motion 176 ); or (2) appeal the IJ s decision on your motion without additional testimony, evidence, or applications for relief. These decisions are not ones to make lightly, and must be made in close consultation with the child. Practice Tip: Evidentiary Objections Short of Suppression and Termination If you move forward with your client s claims for relief before the IJ for example, pursuing SIJS-based adjustment of status you should think broadly and carefully about objections to ICE evidence. In the relief stage, with well-crafted objections you may succeed in keeping damaging evidence out of the record that could otherwise render your client ineligible for relief, undermine her credibility, or weigh against the IJ s favorable exercise of discretion. Even if you cannot keep the evidence out of the record, you may attack it effectively enough that the IJ chooses to give the evidence little weight. Some of the common documents you may want to challenge at the relief stage, arguing they are immaterial or that their admission is fundamentally unfair are: (1) I-213s; (2) confidential juvenile court documents and police reports (especially ICE s submission of the documents to the IJ in violation of state confidentiality law; see Section III.C.4 above); and ORR documents, particularly medical or psychological records. 173 Note that information in applications for relief made during the [removal] hearing cannot constitute a concession of alienage or deportability in any case in which the respondent does not admit his or her alienage or deportability. 8 CFR (e). But since many applications for children are made to USCIS not during the hearing before the IJ this regulation would appear to provide little protection. 174 If you decide to pursue PD for your client, you should ask ICE to agree in writing that PD discussions will be inadmissible in removal proceedings just as settlement discussions are inadmissible in civil litigation. In many parts of the country, however, ICE generally refuses to agree to this, thus making it difficult to gauge how risky it is to disclose information in a PD request that ICE may then try to use to establish alienage. It also may be possible to request that ICE guarantee that a different ICE counsel than the one assigned to your case will review the PD request. Consider making ICE put this promise in writing. Even then, however, you may decide that it is too risky that ICE would internally share damaging evidence. 175 See Section V.D below and Appendix 16 (sample motion for a stay of proceedings to allow for an interlocutory appeal regarding alienage). 176 See Immigrant Legal Resource Center & Ozment Law, Motions to Suppress: Protecting the Constitutional Rights of Immigrants in Removal Proceedings 4-11 to 4-12 (2d. ed. 2013) ( There is a split in thinking among practitioners and available BIA decisions as to whether concessions of alienage made after a motion to suppress is denied, e.g., to demonstrate eligibility for voluntary departure, would moot any appeal of an IJ s denial of the motion to suppress.... Counsel must review decisions in the relevant circuit and make a strategic decision whether to pursue relief or appeal the decision without further testimony. ). 36

41 D. Dealing with Appeals Yours and ICE s of Suppression and Termination Decisions As noted above, as you litigate the motion it is important to keep in mind that you are creating a record for appeal. When you receive an IJ decision, you need to assess the appellate options before you. 1. If the IJ Denies Your Motion If the IJ denies your motion, do not make statements on the record that would make it appear that you are abandoning the legal positions set forth in your motion. Consider telling the IJ that you plan to file an interlocutory appeal of the denial, and ask for a continuance to file that appeal timely with the BIA. 177 Although the BIA is unlikely to grant an interlocutory appeal, pursuing it may be one way to resolve termination and suppression issues before moving to the relief stage. Before this, however, consult with others given that any appeal you file has the possibility of creating a precedential opinion. If you choose to forgo filing an interlocutory appeal, then your next step depends upon whether you will be pursuing immigration relief for your client. If you are not, then after the IJ finds your client removable as charged and issues a removal order, you must reserve appeal and then be certain to file your BIA appeal within 30 days, preserving all issues on appeal. If you decide to pursue immigration relief for your client in immigration court and thus not accept a removal order straight away note that your appeal of the IJ s denial of your motion related to alienage may be mooted out by any subsequent concessions of alienage. Of course if you do pursue immigration relief and it is granted, you will have no need to appeal the denial of your motion. If the IJ does ultimately issue a removal order (whether that order was issued after denial of your suppression and/or termination motion or after denial of your client s applications for relief) and you appeal, utilize the assistance of appellate experts and amici as needed. Strategize with experts on how to present the strongest claim related to your motion in both the notice of appeal and your brief. Ultimately, if the BIA dismisses your appeal of your client s removal order you should consider filing a petition for review with the court of appeals governing the immigration court again on a tight 30-day deadline as well as a motion for a stay of removal. 178 If the BIA sustains your appeal, however, you should expect that it will remand the case to the IJ. 2. If the IJ Grants Your Motion If the IJ grants your motion and terminates your client s removal proceedings or if the IJ suppresses some evidence short of that needed to terminate proceedings but goes on to grant your client immigration relief 179 your best hope is for ICE to waive appeal and thus make the IJ s order final. In either case, ICE s failure to perfect an appeal within 30 days will result in a final order in your client s 177 See BIA Practice Manual, Chapter 4.14 (Aug. 8, 2014). 178 See 8 U.S.C. 1252(b)(1) [INA 242(b)(1)] ( The petition for review must be filed not later than 30 days after the date of the final order of removal. ) Note that ICE may enforce the removal order very soon after the BIA dismisses the appeal, so it is essential to file the petition for review and the motion for a stay of removal with the court of appeals immediately. 179 Note that if the IJ suppresses some evidence but does not terminate proceedings and then goes on to deny your client immigration relief, it is possible ICE will try to challenge the IJ s grant of your motion during the course of your appeal. 37

42 proceedings. If ICE does file a BIA appeal, be certain to enter your appearance with the BIA so that you can defend the IJ s order on your client s behalf. If you choose to pursue immigration relief for your client during the pendency of a BIA appeal on alienage, ICE might move the BIA to remand the case to the IJ for further proceedings if you submit evidence of your client s alienage in the process. Note that if the BIA sustains ICE s appeal and sends the case back to the IJ because it finds the IJ improperly dismissed proceedings or granted relief, you should be prepared to litigate the case again before the IJ. If, however, the BIA dismisses ICE s appeal then you have a final victory, as the federal courts of appeals lack jurisdiction over final grants of relief and over final dismissal, as opposed to removal, orders. 180 E. Strategies When Your Client Does Not Show Up to Court The strategies outlined in this practice advisory are particularly important in the in absentia context that is, when your client fails to appear in court and ICE moves the IJ to issue a removal order in his or her absence. In the process of representing children, you will sensitize IJs to important legal issues that they must analyze when ICE pushes for in absentia orders against other children, particularly unrepresented children. 1. What to Do at the Hearing to Avoid an In Absentia Order Avoiding an in absentia order begins long before your client s hearing. To ensure your client s attendance, make sure he or she and his or her adult caretaker know all of the hearing information and consequences of failure to appear. Instruct him or her to arrive early, to call you if there are any problems, and to meet you in or near the courtroom (so that you can go inside and ask for extra time if he or she does not appear as scheduled, since you certainly do not want an in absentia order issued in your absence). But if despite your efforts your client fails to appear, you must act swiftly to avoid harm to your client. First, start off by asking for a continuance to locate your client. Argue good cause for the continuance, and point out the lack of prejudice to ICE. 181 Frame your arguments to qualify as exceptional circumstances in case you need to reopen on that basis; focus on the child s age and inability to come to court on her own. 182 If this does not work, try the strategies outlined below and make sure your objections to the in absentia order are clear on the record. To enter an in absentia order, the IJ must find that ICE establishes by clear, unequivocal, and convincing evidence that the written notice was... provided and that the alien is removable. 183 If you have not yet conceded proper NTA service, do not do so now. Request termination if ICE fails to prove definitively that service was proper under governing regulations and case law on children. If the IJ hesitates, request time to file a motion on the service issue (and find your client!). Additionally, if you have not done so 180 See 8 U.S.C [INA 242]. 181 See 8 CFR ( The Immigration Judge may grant a motion for continuance for good cause shown. ). 182 If your client is unable to attend his or her hearing because he or she is in state or federal custody, be sure to get this on the record. This custody is a basis to rescind an in absentia order although hopefully if you alert the IJ to this situation he or she will not issue an in absentia order to begin with. See 8 U.S.C. 1229a(b)(5)(C)(ii) [INA 240(b)(5)(C)(ii)] U.S.C. 1229a(b)(5)(A) [INA 240(b)(5)(A)]; see 8 CFR (c). 38

43 already, do not concede the NTA s factual allegations or charge of removability. Object to any evidence that ICE offers to establish removability, with a child-centered focus. Even if the IJ admits the evidence, argue that it is not clear, unequivocal, and convincing evidence of alienage. Request dismissal on this ground. Again, if the IJ hesitates, request time to file a motion (and find your client!). The situation is more perilous if the IJ, at a previous hearing, already found NTA service proper and found your client removable as charged. If that is the case, do not concede proper hearing notice service (in contrast to NTA service). Request termination if ICE fails to prove that service was proper; also request time to brief the issue if the IJ seems disinclined to find improper service on the present record. 2. What to Do after the Hearing if the IJ Issues an In Absentia Order If the IJ issues an in absentia order, act immediately to protect your client s interests particularly because you cannot appeal an in absentia order to the BIA, and the order is final and enforceable upon issuance. 184 Find your client, and file a motion to rescind the in absentia order as soon as possible. 185 The motion can be based on lack of notice or your client s being in state or federal custody, 186 or based on exceptional circumstances justifying your client s failure to appear. Do not delay. Even though you have no deadline if the motion is based on lack of notice or client custody, and a 180-day deadline if based on exceptional circumstances, a filed motion automatically stays the in absentia order s enforcement. Consider asking ICE to join the motion, depending on the circumstances, but do not let that cause delay in filing. Argue through a child-centered lens about the improper notice, custody, and exceptional circumstances, as they are not mutually exclusive. And although ICE s failure to establish alienage properly is not a ground for rescinding the order, you should consider arguing it in your motion to alert the IJ to an underlying flaw in the order and to preserve this issue for circuit court review. 187 Be careful not to concede alienage or provide evidence of alienage if you plan to hold ICE to its burden later. If the IJ grants your motion, then continue with the case as originally planned challenging NTA service, filing your motions, and the like. The rescission undoes the notice and alienage determinations made at the in absentia hearing, returning your client to the legal position she held prior to the hearing. 188 If the IJ denies your motion, you can then appeal the motion s denial (but not the underlying in absentia order directly) to the BIA within 30 days. 189 If you are unsuccessful there, you can consider 184 See 8 CFR If your client shows up to the hearing late, but after the IJ issues the in absentia order, ask the IJ to hear the case and reopen the removal order sua sponte. Arriving slightly late, but while the IJ is nearby, does not count as missing the hearing. See, e.g., Alarcon-Chavez v. Gonzales, 403 F.3d 343, 346 (5th Cir. 2005). Ask court staff to ask the IJ to return to the bench if he or she is in chambers. 185 See 8 U.S.C. 1229a(b)(5)(C) [INA 240(b)(5)(C)] and Appendix 17 (sample motion to reopen to rescind in absentia order of removal). 186 Note that there is no fee for the motion if it is based on lack of notice or state/federal custody, so include those arguments whenever possible. See 8 CFR (b)(2)(v). 187 See 8 U.S.C. 1229a(b)(5)(D) [INA 240(b)(5)(D)] (judicial review shall be confined to (i) the validity of the notice provided to the alien, (ii) the reasons for the alien s not attending the proceeding, and (iii) whether or not the alien is removable (emphasis added)); see also Torres-Ramos v. Mukasey, 258 Fed. Appx. 991, 992 (9th Cir. 2007) (ordering the BIA to reverse and vacate the IJ's removal order because DHS failed to establish removability). 188 See Matter of M-S-, 22 I&N Dec. 349, 353 (BIA 1998) ( to rescind an in absentia deportation order is to annul from the beginning all of the determinations reached in the in absentia hearing and [o]nce an in absentia order is rescinded, the alien is then given a new opportunity to litigate the issues previously resolved against her at the in absentia hearing. ). 189 See BIA Practice Manual, Chapter 5.6(e)(ii). 39

44 filing a petition for review with the proper circuit court. 190 As noted in Section V.D above, be sure to consult with experts handling appeals as you move forward. VI. CONCLUSION As the government has chosen to funnel children through fast-tracked proceedings in an unprecedented fashion, it is critical that attorneys consider and think creatively about termination and suppression strategies. These strategies ensure children s rights are protected and they hold the government accountable for abiding by the Constitution and by regulations, policies, and procedures that the government itself created. This practice advisory aims to serve as a jumping-off point for further brainstorming around termination and suppression motions for children. Collaboration, sharing, and support of strategies, tips, and materials are critical to further positive development of this area of law. 190 See 8 U.S.C. 1229a(b)(5)(D) [INA 240(b)(5)(D)]. 40

45 VII. APPENDICES APPENDIX 1.A APPENDIX 1.B APPENDIX 1.C APPENDIX 1.D APPENDIX 2.A APPENDIX 2.B APPENDIX 3.A APPENDIX 3.B APPENDIX 4.A APPENDIX 4.B APPENDIX 5.A APPENDIX 5.B APPENDIX 6.A APPENDIX 6.B APPENDIX 6.C APPENDIX APPENDIX 8.A APPENDIX 8.B APPENDIX APPENDIX APPENDIX APPENDIX APPENDIX 13.A APPENDIX 13.B APPENDIX 13.C APPENDIX APPENDIX APPENDIX APPENDIX

46 APPENDIX 1.A Sample Motions to Suppress and Terminate (Interior Enforcement) 42

47 KRISTEN JACKSON (Bar No ) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA Telephone (213) , ext. 157 Facsimile (213) Pro Bono Counsel for Respondent Richard Roe UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT LOS ANGELES, CALIFORNIA In the Matter of: ) ) ) File No. A Richard Roe ) ) ) In Removal Proceedings ) ) Immigration Judge Kevin Riley Hearing: August 23, 2010 at 8:30 AM RESPONDENT S MOTION TO SUPPRESS EVIDENCE AND TO TERMINATE PROCEEDINGS

48 Respondent Richard Cristian Roe (aka Richard Roe), through pro bono counsel, files this Motion to Suppress Evidence and to Terminate Proceedings. It is accompanied by Declarations in Support of the Motion. These documents, together, demonstrate that the Court must terminate removal proceedings for the Department of Homeland Security s failure to establish Richard s alienage. STATEMENT OF FACTS Richard is a 16-year-old dependent of the Agave County Juvenile Court. He entered foster care when he was only 10 years old. Declaration of Richard Roe 1 (attached to the concurrently-filed Declarations in Support of Motion to Suppress Evidence and to Terminate Proceedings at Tab B). Richard suffers from mental retardation. It is difficult for him to understand many things, and to remember and talk about them. He functions at a level much lower than his actual age. He cannot read properly, and only recently learned his birthday. He has attended a Regional Center and has received special education because of his mental disability. Id. 2. In 2007, Richard was arrested and placed into juvenile delinquency proceedings. He remained in a secure Agave County Juvenile Facility for an extended period of time. Id. 4. Although Richard had not given anyone permission to disclose information about him to DHS, a DHS officer targeted him inside the Juvenile Facility. Id At the time, Richard did not know he was a DHS officer. Richard is uncertain why the DHS officer chose to speak with him, but he knows that the officer was not speaking with every boy in the Juvenile Facility. Id. 5. While Richard was in a common area in the Juvenile Facility, a staff member told him that this guy wants to talk to you. Richard approached, and the DHS officer asked him where he was born. Richard stated that he would not tell the officer anything. The officer told Richard

49 that You know I can put these handcuffs on you and send you back to Mexico. Richard was frightened, and the encounter ended shortly thereafter. Id. 6. Apparently on November 7, 2008, which Richard believes was a short time after this first encounter with a DHS officer, the officer returned. A staff member told Richard that he had a visitor. He was brought to a small visiting room with one window and two doors, one of which was locked. The DHS officer who had questioned Richard earlier was in the vicinity, and he told Richard that Richard would speak to another person. This second person, who Richard now knows was also a DHS officer, interrogated him. Id. 7. During this interrogation, Richard had a difficult time focusing and understanding what was transpiring unsurprising, given that he was only 14 years old and scared and suffers from mental retardation. Richard did not understand the purpose of the interview or all of the questions. He also could not understand what was written on the papers the DHS officer had. Either unaware of or insensitive to Richard s mental disability, the DHS officer chided him for failing to pay attention. Richard could not help it. Id. 8. Richard felt that he had to answer the DHS officer s questions. In this small room that he could not leave even though he wanted to, Richard believed he had no choice. He was fearful that the DHS officer would deport him if he did not answer, just as the other DHS officer had threatened to do. Id. 9. The DHS officer did not advise Richard that he could place a phone call, and indeed there was no phone in the room. Id. 10. He did not give Richard an I-770 or read one aloud to him. Richard remained unaware of his rights to a phone call, to speak with a lawyer and to have a hearing before an immigration judge. Id. 11. Richard did not understand that an admission of foreign birth may prove alienage or help to establish removability; indeed, he did not even comprehend these concepts. Richard simply knew he did not want to be deported. Id

50 After the November 7, 2008 interrogation ended, Richard did not interact with DHS officers again until March At that time, DHS took him from the Agave County Juvenile Facility into federal custody based on a November 7, 2008 detainer it had lodged. Id. 21. PROCEDURAL HISTORY On March 11, 2009, DHS created a Notice to Appear charging Richard as removable under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act. Two days later, DHS created a superseding NTA. That NTA alleged, among other things, that Richard is a native and citizen of Mexico and that he entered the United States on an unknown date in In 1996, Richard would have been, at the most, two years old. This NTA was filed with the Immigration Court in Portland, Oregon while Richard was in federal custody. See Notice to Appear (dated Mar. 13, 2009 and filed Mar. 18, 2009). When Richard was released from federal custody to the Agave County Social Services Agency Department of Children and Family Services, DHS filed a Motion to Change Venue to Los Angeles. See DHS Motion to Change of Venue (dated June 3, 2009). This Motion was granted. See Order (dated June 8, 2009). On July 9, 2009, Richard appeared in the Los Angeles Immigration Court without counsel. The case was reset, ultimately, to January 12, On January 12, 2010, Richard appeared with his former counsel Sally Monroe. He obtained a four-week continuance to review the NTA, which Ms. Monroe had not yet seen. On February 9, 2010, Richard returned to Immigration Court. Through counsel, he: (1) declined to admit the factual allegations and concede removability; and (2) asserted that he was putting DHS to its burden of proving his alienage. The case was then set for an Individual Hearing on removability on May 17,

51 On April 1, 2010, undersigned pro bono counsel Kristen Jackson filed a Motion to Substitute Counsel. See Motion for Substitution of Counsel (dated Apr. 1, 2010). This Motion was granted. See Order (dated Apr. 5, 2010). At the May 17, 2010 hearing, Ms. Jackson re-asserted that Richard was putting DHS to its burden to establish alienage. DHS did not have its evidence of alienage prepared for filing, but agreed to file its evidence by July 23, The Court set the case for an August 23, 2010 Individual Hearing. This hearing was designated for status, and Ms. Jackson was instructed to bring whatever motions she saw fit to file at the hearing. On July 23, 2010, DHS served a twopage I-213 dated January 23, 2009 as its only evidence of Richard s alienage. This Motion and the accompanying Declarations now follow. STATEMENT OF THE ISSUE Whether DHS has established, as it must, Richard s alienage by clear, unequivocal and convincing evidence. STATEMENT OF THE BURDEN OF PROOF DHS bears the burden of establishing Richard s alienage by clear, unequivocal and convincing evidence. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)). 1 This is not a matter to be taken lightly. Alienage triggers this Court s jurisdiction. See INA 240(a)(1) ( An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien. (emphasis added)); see also Murphy v. INS, 54 F.3d 605, 609 (9th Cir. 1995). If DHS fails to come up with this exacting evidence of alienage, removal proceedings must be terminated. Id. 1 Language in some BIA and Ninth Circuit opinions suggest that the evidence need only be clear and convincing but not unequivocal. Whichever standard is used, unequivocal or not, the result is the same: DHS cannot meet its burden of proving Richard s alienage. 4

52 SUMMARY OF THE ARGUMENT As a general rule, a properly authenticated I-213 can establish alienage. See Lopez- Chavez v. INS, 259 F.3d 1176, 1178 (9th Cir. 2001). That I-213s generally can establish alienage, however, does not mean that every I-213, no matter how defective, can serve that purpose. See Murphy, 54 F.3d at ; Matter of Mejia-Andino, 23 I&N Dec. 533, 538 (BIA 2002) (concurrence). Here, the I-213 fails the test. It must be suppressed in light of serious constitutional and regulatory violations. In addition, it fails to meet minimal evidentiary standards and is inherently unreliable. Even if it were admitted, under 8 C.F.R (c) (2010) it could not meet DHS s burden. The Court should terminate proceedings against Richard for lack of jurisdiction. ARGUMENT I. This Case Involves Considerations and Principles of Special Care Because It Involves the Alienage of a Juvenile. As a preliminary matter, it is important to note that DHS first apprehended Richard and created this I-213 when he was merely 14 years old. Richard is now only 16. Thus the analysis of his alienage must be conducted through the lens of the considerations and principles of special care accorded to juveniles. See Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002); see also Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (requiring the BIA to evaluate harm through the eyes of seven and nine-year-olds, the ages of the 22- and 24-year-old respondents when key events occurred). Using this lens requires acknowledging that DHS officers working with juveniles have heightened duties of investigation and reporting, as outlined below, and thus should be held to a higher standard in creating I-213s for them. The Court s exercising special care also means conducting a comprehensive and independent inquiry into evidence allegedly proving a 5

53 juvenile s alienage. See Matter of Amaya-Castro, 21 I&N Dec. 583, (BIA 1996) (noting that an Immigration Judge must exercise particular care in determining [a child s] deportability ). Finally, it means keeping in mind the challenges all children face in interacting with immigration authorities issues of age, development, experience and self-determination as well as those particular to unaccompanied children like Richard. See Michael J. Creppy, Chief Immigration Judge, U.S. Dep t of Justice, Executive Office for Immigration Review, Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, at 2 (Sept. 16, 2004). This is especially true for children, again, like Richard, who have been diagnosed with mental retardation or other developmental disabilities. See Immigration Judge Benchbook, Tools for the IJ Introductory Guides Mental Health Issues I.A ( [O]ne of the great challenges facing immigration courts today involves respondents who are incompetent. ) II. The Court Should Grant the Motion to Suppress Evidence Because the Methods Used to Gather Information for the I-213 Violated Richard s Fifth Amendment Rights and DHS Regulation. The exclusionary rule is an exceptional remedy typically reserved for violations of constitutional rights. Hong v. Mukasey, 518 F.3d 1030, 1034 (9th Cir. 2008) (internal quotations omitted). Generally, it does not apply in removal proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984); Hong, 518 F.3d at Nonetheless, evidence can be excluded when transgressions implicate fundamental fairness and undermine the probative value of the evidence obtained or, in some cases, when DHS violates its own regulations. See Hong, 518 F.3d at This exclusion thus stems from the Fifth Amendment due process guarantee that operates in removal proceedings. Id. Richard is entitled to relief on various Fifth Amendment grounds, as spelled out below. 6

54 A. DHS s Use of Information Released in Violation of California Law Justifies Suppression. California law takes very seriously the special vulnerability of minors, and protects carefully those children who make their way into the juvenile court system. One aspect of this care is confidentiality. California Welfare & Institutions Code 827 guards records and information relating to juvenile arrests and juvenile court dependency and delinquency proceedings from unauthorized disclosure. A juvenile case file, any portion thereof, and information relating to the content of the juvenile case file fall within its ambit, with the juvenile case file being defined as a petition filed in any juvenile court proceeding, reports of the probation officer, and all other documents filed in that case or made available to the probation officer in making his or her report, or to the judge, referee, or other hearing officer, and thereafter retained by the probation officer, judge, referee, or other hearing officer. Cal. Welf. & Inst. Code 827(a)(4), (e). So, too, does California Welfare & Institutions Code 827 protect: (1) agency files for cases in which no juvenile court proceedings were instituted but the case was handled informally, see Matter of Elijah S., 125 Cal. App. 4th 1532, 1552 (1st Dist. 2005); (2) police reports, including those for children only temporarily detained, see T.N.G. v. Superior Court, 4 Cal. 3d 767, (1971); and (3) any [other] information regarding the juvenile, id. at 780. Certain individuals are allowed to inspect these documents without a court order. They include, among others, the minor, his parents or guardians, prosecutors acting under state law, school district superintendents, and members of child protective services. Cal. Welf. & Inst. Code 827(a)(1). They also include [t]he attorneys for the parties, judges, referees, other hearing officers, probation officers, and law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor. Id. 827(a)(1)(E). Even these 7

55 individuals allowed to inspect the records and in some instances make copies cannot disseminate the information to third parties not enumerated in the statute without prior approval of the presiding judge of the juvenile court unless it is used in connection with and in the course of a criminal investigation or a proceeding brought to declare a person a dependent child or ward of the juvenile court. Id. 827(a)(4). Aside from these individuals, others who want access to confidential records or information so that they may inspect, copy or disseminate them must file a petition to be designated by court order of the judge of the juvenile court for access. Id. 827(a)(1)(P). In adjudicating these petitions, the juvenile court must: balance the interests of the child and other parties to the juvenile court proceedings, the interests of the petitioner, and the interests of the public.... To do so, the court must take into account any restrictions on disclosure found in other statutes, the general policies in favor of confidentiality and the nature of any privileges asserted, and compare these factors to the justification offered by the applicant in order to determine what information, if any, should be released to the petitioner. The court may permit access only insofar as is necessary. People v. Superior Court, 107 Cal. App. 4th 488, 492 (5th Dist. 2003) (internal quotations and citations omitted). As a general rule, the balance of the concerns weigh predominately against access. Pack v. Kings County Human Servs. Agency, 89 Cal. App. 4th 821, 829 (5th Dist. 2001). This is consistent with the strong public policy of confidentiality of juvenile proceedings and records [that] has long been recognized. Matter of Keisha T., 38 Cal. App. 4th 220, 231 (3d Dist. 1995). In light of these provisions, it is clear that DHS needs to secure an order from the juvenile court to obtain information to use in targeting and interrogating youth for the following reasons. First, any information gathered about a minor surely including information related to his place of birth or immigration status in the course of any arrest or juvenile court proceeding is 8

56 protected by California Welfare & Institutions Code 827. T.N.G., 4 Cal. 3d 767 at 780. Second, DHS is not a party authorized by statute to have access to the information absent court order that is, DHS officers are not law enforcement officers who are actively participating in criminal or juvenile proceedings involving the minor. Cf. Cal. Welf. & Inst. Code 827(a)(1)(E). These DHS officers plainly cannot be actively participating in proceedings against minors who have not yet been identified as suspected violators of federal immigration law. Even if immigration proceedings were being actively pursued at the time information is sought, these proceedings are civil and not specific to juveniles, and therefore not criminal or juvenile as the statute requires. Third, other juvenile court players are not allowed to release information or documents to DHS without a court order because DHS s investigations are civil, not criminal, and thus not subject to dissemination under California Welfare & Institutions Code 827(a)(4). Moreover, DHS does not fall into the general exception to confidentiality found at California Welfare & Institutions Code 828, which provides that any information gathered by a law enforcement agency... relating to the taking of a minor into custody may be disclosed to another law enforcement agency... or to any person or agency which has a legitimate need for the information for purposes of an official disposition of a case. Cal. Welf. & Inst. Code 828(a). The legislative history of this provision makes clear that it was designed to facilitate the sharing of juvenile court information solely between state law enforcement agencies, and that extension of this exception to federal authorities was not contemplated. See Enrolled Bill Memorandum to Governor (SB 910, Nov. 20, 1972) and letters in the Governor s Chaptered Bill File for SB 910. Additionally, DHS plainly cannot have a legitimate need for confidential information for purposes of an official disposition of a case when the identity of an alleged violator of federal immigration laws has not yet been revealed to them. Even if DHS were to 9

57 seek information after immigration proceedings were being actively pursued against a minor, the context and legislative history of California Welfare & Institutions Code 828 make clear that disposition of a case refers to juvenile court proceedings, not an investigation of civil immigration law violations. In this case, it appears that DHS did receive and use confidential information that falls within the ambit of California Welfare & Institutions Code 827. Before his contact with DHS inside the Agave County Juvenile Facility, Richard had never spoken with a DHS officer. Roe Decl. 5. He never gave permission for anyone to tell DHS anything about him. Id. 4. Yet he was targeted and questioned inside the facility, and DHS s actions do not appear to be random. Richard knows that DHS was not interviewing every boy in the facility. Id. 5. Presumably, DHS was not engaging in racial or ethnic profiling, targeting youth who looked Latino or illegal or who had Latino-sounding names. Instead, it appears that someone connected to Richard s juvenile case disclosed information and documents about him. This is borne out by the contents of Richard s A file. 2 And there is absolutely no evidence to suggest that a judge of the Agave County Juvenile Court, on the basis of a properly-filed petition, granted DHS access to the confidential material or that the presiding judge of the Agave County Juvenile Court had given any other juvenile court player permission to disseminate this material to DHS which the analysis above makes clear was essential. 2 Ms. Jackson, although pro bono counsel of record in these removal proceedings, is not entitled to inspect Richard s juvenile case files absent a court order under California Welfare & Institutions Code 827. Supplemental Declaration of Kristen Jackson 2 (attached to the concurrently-filed Declarations in Support of Motion to Suppress Evidence and to Terminate Proceedings at Tab C). Such is the strength of California s confidentiality provisions. As a result, she has not yet been able to review Richard s juvenile case files. She has, however, obtained a redacted copy of Richard s A file and notes that there are many confidential Agave County Juvenile Court, Probation Department and Health Care Agency documents, and no petition or order under California Welfare & Institutions Code 827, in that file. Id

58 The record leaves only one logical conclusion: DHS obtained confidential information about Richard that was released in violation of California law, and used that information to target Richard for interrogation. DHS also apparently used the confidential information it obtained to partially complete the I-213. See Section III.B.1, below. This breach of California law, and its use directly contrary to Richard s interests, is fundamentally unfair, and unlikely to be isolated to his case. To allow DHS to use the I-213 a document whose creation was made possible only through an egregious violation of California law designed to protect Richard in these proceedings would violate basic notions of due process guaranteed by the Fifth Amendment. See Hong, 518 F.3d at 1035; cf. Martinez-Medina v. Holder, No , 2010 U.S. App. LEXIS 16703, at *7-8 (9th Cir. Aug. 12, 2010) (evaluating whether a violation of the Fourth Amendment was egregious such that it may justify suppressing evidence of removability). The Court should bar DHS from using this I-213 against Richard, because its creation was only made possible by the release of confidential information to DHS in violation of California law. B. Richard s November 7, 2008 Interrogation Was Plagued by Coercion and Duress Justifying Suppression. The Fifth Amendment bars the use of involuntary statements in removal proceedings. See Cuevas-Ortega v. INS, 588 F.2d 1274, 1277 (9th Cir. 1979). Indeed, [e]xpulsion cannot turn upon utterances cudgeled from the alien by government authorities; statements made by the alien and used to achieve his deportation must be voluntarily given. Choy v. Barber, 279 F.2d 642, 646 (9th Cir. 1960). The Board has recognized that [t]he use of admissions obtained from a respondent involuntarily to establish deportability is fundamentally unfair. Matter of Ramirez- Sanchez, 17 I&N Dec. 503, 505 (BIA 1980); see also Matter of Garcia, 17 I&N Dec. 319, 321 (BIA 1980) ( we are satisfied that the respondent s admissions which underlie the finding of 11

59 deportability were involuntarily made and that the requirements of due process warrant their exclusion from the record (citing Choy, 279 F.2d at 642)). In determining whether a statement introduced in removal proceedings was involuntary, the federal courts and the Board have looked to the totality of the circumstances. See Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980) ( The circumstances surrounding an arrest and interrogation, however, may in some cases render evidence inadmissible under the due process clause of the fifth amendment. (citing Garcia, 17 I&N Dec. at 319)). This may include physical abuse, hours of interrogation, denial of food or drink, threats or promises, or interferences with any attempt by the respondent to exercise his rights. Ramirez-Sanchez, 17 I&N Dec. at 506. It can also include DHS s failure to comply with its own regulations going to voluntariness. See De Rodriguez-Echeverria v. Mukasey, 534 F.3d 1047, 1051 (9th Cir. 2008); Matter of Garcia-Flores, 17 I&N Dec. 325, 327 (BIA 1980). The respondent must establish coercion, duress, or improper action. Cuevas-Ortega, 588 F.2d at When analyzing whether coercion or duress tainted an interrogation, the Court must factor in the individual characteristics of the person questioned. The due process test takes into consideration the totality of all of the surrounding circumstances both the characteristics of the accused and the details of the interrogation. It is not sufficient for a court to consider the circumstances in isolation. Doody v. Schriro, 596 F.3d 620, 638 (9th Cir. 2010) (internal quotations and citations omitted) (emphasis added); see also Choy, 279 F.2d at 647 (noting that the treatment a respondent suffered was viewed in light of his being a highly educated man ). When the person questioned is a juvenile, the likelihood that an interrogation is coercive substantially increases. This has long been recognized. The Supreme Court, over 50 years ago, stated: 12

60 And when, as here, a mere child an easy victim of the law is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces.... Haley v. Ohio, 332 U.S. 596, 599 (1948); see also Matter of Gault, 387 U.S. 1, 45 (1967) ( admissions and confessions of juveniles require special caution ). Both the Board and the Ninth Circuit have refused to suppress evidence when there was simply a bare assertion that a statement [was] involuntary. Cuevas-Ortega, 588 F.2d at 1278 ( no testimony or evidence [was] presented by petitioners... to establish that the statements at the office were involuntary ); Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) ( he offered no evidence to even suggest that the contents of the form... was the result of coercion or duress ); Ramirez-Sanchez, 17 I&N Dec. at 505 ( There is no evidence that the prior statements of Mario Ramirez-Sanchez were made involuntarily. ); Toro, 17 I&N Dec. at 344 ( there was no evidence offered or alleged that the respondent s admissions were either involuntary or otherwise affected by the circumstances of her arrest ). But where proper evidence has been submitted, the Board and the Ninth Circuit have found in favor of suppression as the Court should do here. Richard has provided specific evidence that, when viewed in the totality of the circumstances, establish that his statements to the DHS officer were involuntary that is, they were plagued by coercion and duress. The circumstances of the interrogation, in light of Richard s own characteristics, were extremely coercive. The DHS officer questioned Richard inside a small room, inside a locked facility. Roe Decl. 7. Although the interrogation was not lengthy, it was difficult for Richard. See Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (disagreeing that a 14-year-old child s confession was voluntary simply because it came 13

61 tumbling out as soon as he was arrested ). Even younger than the child in Haley, Richard was a 14-year-old foster child who suffers from mental retardation. See Choy, 279 F.2d at (acknowledging that interrogations are more trying for persons of rather low mentality ); Roe Decl. 8. He had difficulty following the DHS officer, and the officer chided him for this. Id. 8. He could not read properly or understand the papers the DHS officer had. Id. He did not understand the purpose of the interview, or the significance of the questions or their answers. See Gallegos, 370 U.S. at (noting that a 14-year-old boy cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions and finding his confession involuntary); Roe Decl. 8, 12. Richard feared the DHS officer and felt compelled to answer his questions. See Singh v. Mukasey, 553 F.3d 207, 215 (2d Cir. 2009) (finding a statement involuntarily given when the officer threatened him with jail and the respondent broke down crying); Roe Decl. 9. He did not think he had a choice. Singh, 553 F.3d at 215; see also Navia-Duran v. INS, 568 F.2d 803, 805 (1st Cir. 1977) (finding a signed statement inadmissible in part because the respondent felt she had no choice but to cooperate with the agents); Roe Decl. 9. He was afraid he would be deported if he did not answer. Id. Indeed, when Richard previously had refused to answer another DHS officer s questions, he had been told You know I can put these handcuffs on you and send you back to Mexico. See Choy, 279 F.2d at 647 (finding an officer s threat of deportation weighed against a statement s voluntariness); Roe Decl. 9. Additionally, as outlined in the following Section, DHS did not comply with its own regulation designed to prevent coercion. Garcia, 17 I&N Dec. at 320 (noting that DHS failed to follow its regulation protective of Fifth Amendment rights and ultimately concluding the statement was involuntary). Richard was not advised of his rights to a phone call and a lawyer and a hearing before an 14

62 immigration judge. Roe Decl. 11. He was unable to stand up for himself. See Gallegos, 370 U.S. at 54 (noting that a 14-year-old child is unable to know how to protect his own interests or how to get the benefits of his constitutional rights ). For these reasons, taken in their totality, Richard s answers to the DHS officer s questions were involuntary. The Court should not admit them into evidence. C. DHS Violation of 8 C.F.R (h), Which Implicates the Fifth Amendment, Justifies Suppression. Quite recently, the Ninth Circuit considered in what circumstances alleged regulatory violations justify exclusion. It acknowledged that there is no rigid rule... under which every violation of an agency regulatory requirement results in... the exclusion of evidence from administrative proceedings. Choy, 518 F.3d at 1035 (citing Garcia-Flores, 17 I&N Dec. at 327). Instead, such evidence will be excluded if: (1) the regulation serves a purpose of benefit to the alien; and (2) the violation prejudiced interests of the alien which were protected by the regulation. Choy, 518 F.3d at 1035 (internal quotations and citations omitted). Undoubtedly, 8 C.F.R (h) serves to benefit children like Richard. It provides: Notice and request for disposition. When a juvenile alien is apprehended, he or she must be given a Form I-770, Notice of Rights and Disposition. If the juvenile is less than 14 years of age or unable to understand the notice, the notice shall be read and explained to the juvenile in a language he or she understands. In the event a juvenile who has requested a hearing pursuant to the notice subsequently decides to accept voluntary departure or is allowed to withdraw his or her application for admission, a new Form I-770 shall be given to, and signed by the juvenile. The I-770 itself provides notice of many rights, and informs the juvenile that You have the right to use the telephone...you have the right to be represented by a lawyer... [and] You have the right to a hearing before a judge. The Board has considered 8 C.F.R an analogous regulation that required notice of the right to counsel at no expense to the government and concluded that the regulation s protections did serve a purpose of benefit to the alien. Garcia- 15

63 Flores, 17 I&N Dec. at The Court should conclude that the same is true for 8 C.F.R (h). Clearly, violations of 8 C.F.R (h) do prejudice children s interests protected by the regulation, in general, and did prejudice those of Richard, in particular. Because DHS failed to timely issue Richard an I-770, he remained ignorant of his right to a phone call, right to a lawyer, and right to a hearing. Roe Decl. 11. Had he known of these rights, at a minimum he would have contacted his juvenile-court-appointed counsel for assistance before proceeding with an interview. Id. That lawyer should have properly advised Richard regarding his additional rights, or should have found an attorney who could do so. Jackson Decl. 5. The I-770 itself acknowledges this role of counsel by stating [y]our lawyer can fully explain all your rights to you. Thus DHS s violation of 8 C.F.R (h) compromised Richard s Fifth Amendment right to due process by leaving him ignorant of his right to counsel. It also compromised his accompanying Fifth Amendment right to remain silent in the face of questions regarding alienage; counsel likely would have invoked this right on Richard s behalf and thus prevented DHS from obtaining the incriminating information that it did. See Jackson Decl. 5; see also Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1019 (9th Cir. 2006) ( The Fifth Amendment privilege against self-incrimination applies in removal hearings where the alien s testimony could expose him to future criminal prosecution. ) Given that 8 C.F.R (h) is designed to 3 The notices required by 8 C.F.R (c) are inapplicable here, as the Ninth Circuit has recently held that they are triggered only when a person has been placed in formal proceedings through the issuance of a Notice to Appear, given the regulatory language to this effect. See Samayoa-Martinez v. Holder, 558 F.3d 897, (9th Cir. 2009). Such a restriction, however, does not exist in 8 C.F.R (h). Richard was clearly apprehended on November 7, 2008, requiring service of the I-770. See Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999) (repeatedly using language indicating that apprehension and arrest of a minor are distinct). DHS s subsequent issuing of an I-770 to him on March 11, 2009 does not cure this violation, since the prejudice to Richard had already accrued. 16

64 protect Richard s interests and DHS s failure to follow the regulation prejudiced him, the Court should not admit his statements into evidence. III. The Court Should Grant the Motion to Terminate Proceedings Because the Defective and Insufficient I-213 Is DHS s Only Evidence of Alienage and Even if Admitted It Cannot Meet DHS s Burden. A. If the Court Suppresses the I-213, It Should Terminate Proceedings Since DHS Elected to Rely Solely Upon the I-213 to Establish Alienage. If the Court grants the concurrently-filed Motion to Suppress Evidence, the Court should grant the Motion to Terminate Proceedings. DHS has no other timely-filed or admissible evidence to establish Richard s alienage. DHS made a choice to submit the I-213 as its sole evidence, in advance of the August 23, 2010 hearing as instructed by the Court, and it should be held to that choice. See 8 C.F.R (c) ( If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived. ); see also Immigration Court Practice Manual 3.1(d)(ii) ( if an exhibit is untimely, it is not entered into evidence or it is given less weight. ). Richard will object vigorously, on both timeliness and admissibility grounds, to any DHS attempt to submit additional evidence of alienage to the Court. 4 4 For the reasons set forth in Section II.A, Agave County Law Enforcement, Probation Department, Department of Social Services, Health Care Agency or Juvenile Court documents pertaining to Richard cannot be submitted directly to the Court without running afoul of California law. If DHS attempts to submit evidence obtained from any of these sources, the Court should not accept the evidence for filing unless DHS obtains an order from the presiding judge of the Agave County Juvenile Court authorizing dissemination of the evidence. See Cal. Welf. & Inst. Code 827(a)(4). 17

65 B. If the Court Does Not Suppress the I-213 on the Grounds Outlined in Section II, It Should Nonetheless Refuse to Admit the I-213 and Should Terminate Proceedings Because the I-213 Cannot Meet DHS s Heavy Burden. Even if the Court denies the Motion to Suppress Evidence, the Court should nonetheless refuse to admit the I-213 as evidence of alienage because it fails to meet minimal evidentiary standards and is inherently unreliable. The reasons are set forth below. 1. The Complete Information in the I-213 Did Not Come from Richard. I-213s are presumed inherently trustworthy and capable of establishing alienage in significant part because they are essentially a recorded recollection of a [DHS agent s] conversation with the alien. Espinoza v. INS, 45 F.3d 308, 308 n. 1 (9th Cir. 1995) (citation omitted). Indeed, I-213s are typically regarded as records of the subject s own statements that is, created from information out of the alien s mouth. Id. at 310. Source, then, is highly relevant to an I-213 s reliability. The Ninth Circuit, in finding I- 213s admissible to prove alienage, has repeatedly relied heavily upon the fact that the undisputed source of the particular I-213 s information was the respondent himself. See, e.g., Lopez-Chavez, 259 F.3d at 1181 (upholding alienage where there was no evidence that the information on the form was obtained... from anyone other than Lopez-Chavez himself ). In cases where an I- 213 s source is disputed or is found not to be the respondent himself, the Ninth Circuit has found that that I-213 alone cannot meet the government s burden. See Hernandez-Guadarrama, 394 F.3d at (giving an I-213 no weight where its source was not the respondent); Murphy, 54 F.3d at (concluding that an I-213 merited little if any weight when the source of the information was in doubt). The BIA has repeatedly concluded the same. See Ponce-Hernandez, 22 I&N Dec. at 785 (upholding in absentia removal order where there was nothing to indicate that [the I-213 s information] came from anyone other than the respondent ); Barcenas, 19 I&N 18

66 Dec. at 611 (upholding a deportation order where the I-213 reflects that [the officer] completed the form based upon admissions made by the respondent ). Under these precedents, the I-213 here is clearly unreliable. Richard disputes the source of much of the I-213 s information. He denies that he supplied some of the information to ICE himself at times relevant to the I-213 s creation. Roe Decl. 13. He does not know who did supply some of the information, or when or how it was supplied. Id. Although it is likely that the information came from the Agave County Juvenile Court or Probation Department records in violation of California law, as outlined in Section II.A, Richard cannot say for certain. Id. 4-5, 13. Like the government in Hernandez-Guadarrama and Murphy, DHS here cannot use this mysteriously-sourced I-213 to prove Richard s alienage. 2. Material Information on the I-213 Is Incorrect. Obviously, when DHS is using an I-213 to sustain its burden, it is of utmost importance that the document itself contains correct information. Both the Ninth Circuit and the BIA have acknowledged that errors on an I-213 undermine its evidentiary value. In upholding the use of I- 213s in numerous cases, they have noted that the result would be different if the I-213s contained errors. See Espinoza, 45 F.3d at 310 (concluding that an I-213 alone would not be clear and convincing evidence of alienage when a respondent produces evidence contradicting material information on the I-213 itself); Gomez-Gomez, 23 I&N Dec. at 524 (observing that an I-213 is deemed inherently trustworthy and admissible to prove alienage only absent any evidence that [it] contains information that is inaccurate ); Ponce-Hernandez, 22 I&N Dec. at 785 (same). This is hardly surprising. Incorrect information on an I-213, taken as true, could lead to disastrous results. A U.S.-born citizen whose I-213 shows him as born in Honduras may receive a removal order on the basis of this inaccurate information. A person who entered the U.S. years 19

67 before the I-213 states he did may be presumed not to qualify for important forms of relief, including cancellation of removal. Incorrect information on children s I-213s is of particular concern, given a child s more limited ability to understand[] whether the factual allegations made against him are accurate and the challenges of his age and pro se and unaccompanied status. Amaya-Castro, 21 I&N Dec. at & n.4 (holding that 13-year-old child s factual admissions in court, after comprehensive inquiry, could establish his alienage but the I-213 itself could not serve that purpose). Problems with accuracy can arise from a DHS officer s own misapprehensions or from the child s faulty or clouded memory. Here, Richard disputes the accuracy of the I-213 in that it, for one, contains an incorrect date of birth. Roe Decl. 19. Richard s complete name and its proper spelling are incorrect. Id. 15. His address and phone number are also incorrect. Id He is not known by the alias Simon Roe. Id. 16. He was not in good... mental health at the time of his interrogation. Id. 8. His mother s name is incorrect. Id. 20. Richard did not state that he was a citizen or national of any country, as the I-213 suggests, and indeed did not even comprehend what that means. Id. 14. Richard s declaration is evidence of these errors. See Espinoza, 45 F.3d at 310 (concluding that evidence of inaccuracy is needed as opposed to mere suspicion). The evidence he has submitted, supported by his testimony, should be enough to discount the reliability of the I-213, as no Ninth Circuit or BIA case has required extensive or detailed evidence to establish the inaccuracy of an I-213. See Barcenas, 19 I&N Dec. at 611. The defects in this I-213 are clear and it should not be used to establish Richard s alienage. 3. A Substantial Temporal Gap Exists Between Richard s Interrogation and the Creation of This I-213. I-213s are given a presumption of inherent trustworthiness in part because they are considered documents created in the normal course of business, in accordance with normal 20

68 recordkeeping requirements. See Espinoza, 45 F.3d at 308 (also noting that border agents routinely complete [the I-213s] after interviewing aliens ); Matter of Rojas, 15 I&N Dec. 722, 723 (BIA 1976) (describing immigration officer s unvarying practice in creating I-213s). Part of the normalcy of the I-213 is its creation in relatively short order after the immigration officer obtains information on its subject. Indeed, DHS s own Office of the Inspector General acknowledges that the initial processing of juveniles completed before DHS determines whether the youth will be voluntarily returned across the border, released to a sponsor pending removal proceedings, or kept in custody includes both gathering information on the juvenile and completing necessary immigration paperwork, such as the Form[] I-213. Office of Inspector General, U.S. Dep t of Homeland Security, A Review of DHS Responsibilities For Juvenile Aliens, at 8 (Sept. 2005). Creation of the I-213 shortly after information gathering is also common in other parts of DHS. See, e.g., Refugee, Asylum and International Operations Directorate, U.S. Citizenship & Immigration Services, Affirmative Asylum Procedures Manual, at 45 (Nov. 2007) (noting that the I-213, if required, is to be created before a case is referred to Immigration Court). In this case, the I-213 was created over two and a half months after DHS interrogated Richard inside the Agave County Juvenile Facility. Richard was not re-interviewed, nor did he provide any of the information on the I-213 in January 2009, the date on the I-213. See Roe Decl. 21. Thus, a significant period of time passed between the information collection from Richard and its recording in this I-213. This passage of time impacts the information s reliability. Cf. Immigration Officer Academy, U.S. Citizenship & Immigration Services, Asylum Officer Basic Training Course 2:7 (Sept. 2006) (acknowledging that facts of cases may blur when case assessments are written at a time removed from the asylum interview, even later the same day). 21

69 The Ninth Circuit has recognized that the time lapse between the gathering of the information and its recording [on the I-213] is an important consideration in determining whether an I-213 sustains the government s burden. Murphy, 54 F.3d at 611. Where, as here, the I-213 s creation lags long after the information collection with no indication that the information was otherwise accurately recorded in the interim, the I-213 falls short of DHS s burden. 4. The I-213 Lacks Detail. In a case such as this, detail is key to an I-213 s ability to sustain DHS s burden. The BIA was careful to state in its most recent precedent decision addressing I-213s in depth: We emphasize that while generally considered to be reliable and sufficient to establish alienage, not every Form I-213 that alleges alienage must be ultimately so found. The Service would be well advised to include as many indicia of trustworthiness regarding the information in that document as are practicable, such as the source of the information and the circumstances of the alien s apprehension, as was done here. Gomez-Gomez, 23 I&N Dec. at 526. This was not new: the BIA s prior decisions did not go so far as to hold that any allegation of alienage in a Form I-213, however conclusory, is sufficient to meet the Service s burden of proof. Id. at 526 n.5. In a notable case in which an I-213 was used to establish a juvenile s alienage in in absentia proceedings, the BIA was careful to note that it was the detailed information in that particular form, combined with absolutely no challenge to the use of the form itself, that sustained the government s burden. See id. (citing Ponce- Hernandez, 22 I&N Dec. at ); see also Mejia-Andino, 23 I&N Dec. at 538 (concurrence) (recognizing that Ponce-Hernandez relied heavily on the detailed information attributed to the juvenile). In an apparent acknowledgement of the need for details to sustain its burden in children s cases, DHS requires its officers to include in-depth information on juveniles I-213s. The Juvenile Protocol Manual created by the Office of Detention and Removal makes clear that 22

70 officers should obtain as much detailed biographical information as possible. U.S. Dep t of Homeland Security, Detention and Removal Officer s Field Manual Appendix 11-4: 2.1.1, available at: (updated through Nov. 2003). Officers are instructed to ask the juvenile about 12 topics, directed at the juvenile s special vulnerabilities, that are not covered on the I-213 form itself and to add [the resulting information] to the narrative of the I-213 Form. Id. at These guidelines simply were not followed here. The I-213 does not contain much of the basic information requested on the form itself, including information about any: (1) passport; (2) permanent residence address; (3) city and state of birth; (4) visa; (5) Social Security number; (6) parental addresses; or (7) FBI number. It also does not indicate, as discussed above, the complete sources of the I-213 s information. Further, the narrative clearly does not cover the 12 topics outlined in the Juvenile Protocol Manual. Obviously an officer need not write a novel about each juvenile for whom he issues an I-213. But he does need to do more than was done in Richard s case. Under existing BIA precedent, this limited I-213 falls short of establishing his alienage. In assessing the use of I-213s to prove alienage, the Ninth Circuit has made clear that [t]he burden of establishing a basis for exclusion of evidence from a government record falls on the opponent of the evidence, who must come forward with enough negative factors to persuade the court not to admit it. Espinoza, 45 F.3d at 310. Richard has met his burden here: The I-213 s dubious source, inaccuracy, temporal gap between investigation and creation, and lack of detail should indeed persuade this Court not to credit it. C. Even if the Court Admits the I-213, It Should Nonetheless Terminate Proceedings Because DHS Has Failed to Meet Its Burden in Light of 8 C.F.R (c). Richard was only 14 years old and suffered from mental retardation when DHS interrogated him in the Agave County Juvenile Facility on November 7, His alleged 23

71 admissions on that day appear to be DHS s sole evidence of alienage. Yet under the federal regulations, those alleged admissions should not establish Richard s removability because of his age and mental capacity. 8 C.F.R (c) provides that the immigration judge shall not accept an admission of removability from an unrepresented respondent who is incompetent or under the age of 18 and is not accompanied by an attorney or legal representative, a near relative, legal guardian, or friend.... The BIA has held that an earlier version of this regulation, tagged to age 16 rather than 18, does not preclude an Immigration Judge from accepting such a [15 or younger] minor s admissions to factual allegations. Amaya-Castro, 21 I&N Dec. at 586. Despite this holding, it remains true that the regulation recognizes that an unaccompanied minor... may lack sufficient maturity to appreciate the significance of providing factual responses, and may lack the capacity to evaluate the foreseeable consequences of such responses. Ponce-Hernandez, 22 I&N Dec. at 795 (dissent). Simply because an Immigration Judge can accept an unrepresented minor s admissions to factual allegations under BIA precedent does not mean he should or must in every case. The BIA was careful to point out that [i]f the Immigration Judge is assured that the respondent is both capable of understanding, and in fact understands, any facts that are admitted, and that those facts establish deportability, they may form the sole basis of a finding that the minor is deportable under the regulations. Id. at 587. Here, Richard has provided evidence that he was only 14 years old and suffered from mental retardation when DHS interrogated him. He also provided evidence that when DHS interrogated him, he did not understand that the facts allegedly admitted regarding alienage established his removability or could be used to do so. Roe Decl. 12. This is unsurprising, given his youth and the developmental disability that rendered 24

72 him cognitively younger than his actual 14 years age. Id. 2. Thus under BIA precedent, Richard s statements reflected on his I-213 cannot establish his alienage because the Court cannot be assured of Richard s ability to understand. Cf. Immigration Judge Benchbook, Tools for the IJ Introductory Guides Mental Health Issues II.B.2 (Immigration Judge may not be comfortable admitting a Record of Deportable/Inadmissible Alien (Form I-213) for a respondent with diminished mental capacity). Richard s case is quite unlike that in which the BIA found a minor removable based upon the factual admissions in his I-213 even though he was 15 years old at the time he was interrogated. See Ponce-Hernandez, 22 I&N Dec. at In that case, the respondent failed to appear at his removal proceeding. The BIA found that the I-213 established his alienage and removability, despite the federal regulation, because there is neither an assertion nor a reason to believe that the respondent s age [or capacity] impeded an accurate exchange of basic biographical information. Id. at 787. Here, by contrast, Richard is attending his hearings. He is asserting that his age and capacity impeded his ability to make this exchange. Roe Decl. 8. Thus what the BIA did in an in absentia case does not govern here, where Richard has indeed shed light on the limits of his ability to understand any admitted facts. Ponce-Hernandez, 22 I&N Dec. at 786 n.3. CONCLUSION For the reasons set forth in this Brief, the Court should grant both the Motion to Suppress Evidence and the Motion to Terminate Proceedings. DHS has failed to meet its heavy burden to establish Richard s alienage. Richard asks that the Court recognize this failure and terminate the 25

73 case against him for lack of jurisdiction. Dated: August 23, 2010 Respectfully Submitted, PUBLIC COUNSEL By: KRISTEN JACKSON Attorneys for Respondent Richard Roe 26

74 APPENDIX 1.B Reply to Motions to Suppress and Terminate (Interior Enforcement) 70

75 KRISTEN JACKSON (Bar No ) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA Telephone (213) , ext. 157 Facsimile (213) Pro Bono Counsel for Respondent Richard Roe UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT LOS ANGELES, CALIFORNIA In the Matter of: ) ) ) File No. A Richard Roe ) ) ) In Removal Proceedings ) ) Immigration Judge Kevin Riley Hearing: February 9, 2011 at 1:00 PM REPLY IN SUPPORT OF RESPONDENT S MOTION TO SUPPRESS EVIDENCE AND TO TERMINATE PROCEEDINGS

76 Respondent Richard Roe, through pro bono counsel, files this Reply in Support of Motion to Suppress Evidence and to Terminate Proceedings. It is accompanied by the First Supplemental Set of Declarations in Support of the Motion. Despite DHS s arguments to the contrary, the government has failed to establish Richard s alienage and these removal proceedings must be terminated. STATEMENT OF FACTS Richard s previously-filed Motion details the facts of this case. See Respondent s Motion to Suppress Evidence and to Terminate Proceedings [Respondent s Motion] at 1-3 (Aug. 23, 2010). The Court should note that DHS s Response contains three factual errors. See Department of Homeland Security s Response to Motion to Terminate and Suppress [DHS s Response] at 2, 11 (Nov. 26, 2010). First, DHS officers encountered Richard in an Agave County Juvenile Facility on November 7, 2008 not on December 23, See Department of Homeland Security s Documents Supporting Removability [I-213] at 2 (July 23, 2010). Second, DHS prepared its Form I-213 on January 23, 2009 not on December 23, See id. Long before December 23, 2009, DHS had interviewed Richard, created an I-213, taken Richard into custody and served him with an NTA. Third, contrary to DHS s assertion, ICE officers did not have Richard s FBI Rap Sheet on or before November 7, 2008 the day Richard was targeted in the Agave County Juvenile Facility. The only FBI Rap Sheet in the A file, as confirmed by DHS counsel, was requested on March 11, 2009, long after Richard s 2008 interrogation. See Second Supplemental Declaration of Kristen Jackson 2 (attached to the concurrently-filed First Supplemental Set of Declarations in Support of Motion to Suppress Evidence and to Terminate Proceedings at Tab D). 1

77 PROCEDURAL HISTORY Richard s previously-filed Motion details the procedural history of this case. See Respondent s Motion at 3-4. Three months after the filing of Richard s Motion, DHS filed its Response. In that Response, DHS argued that: (1) it did not violate the Fifth Amendment s due process standards of fundamental fairness, DHS s Response at 2; (2) it did not violate Richard s Fourth Amendment rights, id. at 6; (3) it did not violate 8 C.F.R (c), id. at 9; and (4) it did not violate the California Welfare and Institutions Code, id. at 10. DHS also attached a Form I-200 Warrant for Arrest of Alien to its Response. This Reply now follows. STATEMENT OF THE ISSUE Whether DHS has established, as it must, Richard s alienage by clear, unequivocal and convincing evidence. STATEMENT OF THE BURDEN OF PROOF DHS bears the burden of establishing Richard s alienage by clear, unequivocal and convincing evidence. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)). 1 This is a significant threshold issue, as alienage triggers this Court s jurisdiction. See INA 240(a)(1) ( An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien. (emphasis added)); see also Murphy v. INS, 54 F.3d 605, 609 (9th Cir. 1995). If DHS fails to come up with this exacting evidence of alienage, removal proceedings must be terminated. Id. 1 Language in some BIA and Ninth Circuit opinions suggest that the evidence need only be clear and convincing but not unequivocal. Whichever standard is used, unequivocal or not, the result is the same: DHS cannot meet its burden of proving Richard s alienage. 2

78 SUMMARY OF THE ARGUMENT ON REPLY DHS has not rebutted Richard s arguments that its I-213 cannot establish Richard s alienage. Oddly, DHS argues that the Fourth Amendment does not justify the I-213 s suppression but Richard never argued that it did. Similarly, DHS argues that it did not violate 8 C.F.R (c) but Richard never argued that it did. DHS addresses Richard s Fifth Amendment arguments, but cannot undercut them. Although DHS tries to slice and dice and explain away constitutional and regulatory violations, it fails. For the reasons set forth in Richard s Motion and this Reply, the Court should terminate proceedings against Richard for lack of jurisdiction. ARGUMENT ON REPLY I. DHS s Argument Regarding the Fourth Amendment Should Be Disregarded DHS spends significant time arguing that it did not violate Richard s Fourth Amendment rights and thus exclusion is unwarranted. See DHS s Response at 6-9. Richard did not, however, argue that he was entitled to suppression of the I-213 on Fourth Amendment grounds rather, his constitutional arguments are rooted in the Fifth Amendment. See Respondent s Motion at As a result, the Court can disregard this portion of DHS s Response. II. DHS s Argument Regarding 8 C.F.R (c) Should Be Disregarded DHS devotes a page to arguing why it did not violate 8 C.F.R (c). See DHS s Response at 9. Richard explicitly conceded that DHS did not violate this regulation. See Respondent s Motion at 16 n.3. As a result, the Court can also disregard this portion of DHS s Response. 3

79 III. DHS s Remaining Arguments Fail to Undermine Richard s Claims In its six remaining pages of argument, DHS attempts to refute some of the many points that Richard presented in his Motion. Each attempt, as addressed below, fails. Try as it might, DHS cannot prove Richard s alienage through its defective I-213. A. Richard Has Provided Sufficient Evidence in Support of His Motion As DHS correctly states, Richard bears the burden of establishing a basis for the exclusion of evidence from the record by com[ing] forward with enough negative factors to persuade the court not to admit it. Espinoza v. INS, 45 F.3d 308, 1995 U.S. App. LEXIS 7699 at *8 (9th Cir. 1995). He must provide proof [through testimony] establishing a prima facie case before [DHS] will be called on to assume the burden of justifying the manner in which it obtained evidence. Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (internal quotations and citation). Thus, on paper, Richard must simply present information that if true, could support a basis for excluding the evidence in question. Id.; see also Matter of Velarde-Pacheco, 23 I&N Dec. 253, 262 (BIA 2002) (concurrence) (noting a prima facie showing is made when the facts asserted, if later proven in a full hearing, would establish eligibility under the statutory standard ). Richard has done just that. DHS complains that Richard has made a blanket statement that he suffers from mental retardation but he has offered no evidence whatsoever to substantiate this fact. DHS s Response at 3, 5. DHS is wrong. Richard has provided his own sworn statement about his mental capacity, its effects on him, and his attendance at a Regional Center and special school. Declaration of Richard Roe 2 (attached to the previously-filed Declarations in Support of Motion to Suppress Evidence and to Terminate Proceedings at Tab B). This statement was prepared with the assistance of counsel, carefully reviewed with Richard, and knowingly and 4

80 voluntarily made. Second Supp. Jackson Decl. 3. Ms. Jackson is not simply asserting a fact without evidence or presenting a general or conclusory statement. Cf. Matter of Ramirez- Sanchez, 17 I&N Dec. 503, 506 (BIA 1980) (only evidence of involuntariness of a statement was counsel s argument unsupported by any statement from the respondent); Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980) (only information regarding involuntariness was counsel s statement that the respondent was intimidated into revealing some information on the I-213 ). Thus DHS s urging the Court to give this statement [regarding mental retardation] very little weight should not be heeded. DHS s Response at 3. 2 DHS also complains that Richard is attempting to establish his case through pure speculation and conjecture regarding the use of information from Richard s juvenile court proceedings. DHS s Response at 5, 10. Yet DHS cites no authority for the proposition that a respondent must definitely prove the disputed source of information or definitely establish the alleged violation of law in order to meet his burden. Indeed, a key Ninth Circuit case makes clear that this is not required not even at a full removal hearing. See Murphy, 54 F.3d at 612 (vacating a removal order for the government s failure to establish alienage because, among other reasons, the homeless, uneducated and illiterate respondent claimed that the key information on his I-213 came from an INS snitch; while he was unable to produce documentary or testimonial evidence corroborating his statements, the government provided no witness to verify the source of the information and the respondent accordingly undermined the I- 213 s reliability). Here, Richard did not authorize information about himself to be turned over to 2 While DHS might wish for something more, nothing else is now available. Richard has no independent records of his diagnosis. Second Supp. Jackson Decl. 4. Under California law, Ms. Jackson is not authorized to disclose information regarding, much less provide copies of, any documents substantiating Richard s disability. Nor may she even address whether such records are found in Richard s juvenile case file. See id 5. 5

81 DHS, but undoubtedly it was, as a DHS officer came to interview him in the Agave County Juvenile Facility. Roe Decl That Richard cannot prove with certainty precisely how this happened does not defeat his claim. B. DHS Had No Independent Evidence of Richard s Alienage and Its Targeting of Him Was Based on Information Released in Violation of California Law As the first of his claims why the Fifth Amendment justifies suppression of the I-213, Richard argues that DHS used information about him that was released in violation of California law, thus offending notions of fundamental fairness. Respondent s Motion at In response, DHS argues that it did not violate California & Institutions Code and, regardless, ICE officers were in possession of respondent s FBI Rap Sheet which listed the respondent s country of birth as Mexico and were thus justified in questioning Richard because they had independent evidence that suggested the respondent was a native and citizen of Mexico. DHS s Response at 11. Neither of these assertions defeat Richard s claim. First, and easiest to address, ICE officers did not have Richard s FBI Rap Sheet on or before November 7, 2008 the day Richard was targeted in the Agave County Juvenile Facility. The only FBI Rap Sheet in the A file, as confirmed by DHS counsel, was requested on March 11, 2009, long after Richard s 2008 interrogation. See Second Supp. Jackson Decl. 2. As a result, it is impossible that this FBI Rap Sheet provided reasonable suspicion, based on articulable facts, that [Richard] is an alien illegally in the United States as DHS contends. DHS s Response at 11. Thus we are left where we began, with Richard s arguments involving the release of information in violation of California law. As DHS did not have independent evidence suggesting Richard s alienage, there is no question that information related to Richard s juvenile case was released to DHS prior to Richard s November 7, 2008 interview. Richard was inside a locked Agave County Juvenile 6

82 Facility because of his juvenile arrest and his pending juvenile case. DHS had no way to know that Richard was there absent a release of information whether that information was provided at a local source s own initiative or at DHS s request. 3 DHS misapprehends the scope of California law s protections of information gathered in connection with a juvenile case. Information about a juvenile gathered in the course of a case whether that be a name, date of birth, country of birth, or charging information is protected, as are the documents that are found either in the juvenile case file or created in connection with a juvenile case. See, e.g., T.N.G. v. Superior Court, 4 Cal. 3d 767, (1971); see also Cal. Ct. R (a)(4) (providing that the juvenile case file includes [d]ocuments relating to a child concerning whom a petition has been filed in juvenile court that are maintained in the office files of probation officers ). These items are protected from dissemination under California Welfare & Institutions Section 827(a)(4). DHS is incorrect that nothing in the California Welfare and Institutions Code [] would preclude obtaining information related to a juvenile from sources other than the case file. DHS s Response at 11. Indeed, California law s protections extend to law enforcement agencies not directly connected to the juvenile court. See T.N.G., 4 Cal. 3d at 781 ( Police records in this regard become equivalent to court records and remain under the control of the juvenile court. ); Cal. Welf. & Inst. Code 827.9(a) (related to Los Angeles County) ( It is the intent of the Legislature to reaffirm its belief that records or information gathered by law enforcement 3 DHS suggests that it is Richard s belief that the officers who questioned the respondent could have only obtained information related to him by a review of his juvenile file, in violation of California Welfare and Institutions Code. DHS s Response at 10 (emphasis added). This is not true. While this is one way that the information could have been gained, it was not the only way posited. Indeed, Richard s Motion makes clear that a violation would have occurred, equally, if someone connected to Richard s juvenile case provided information about him to DHS. Respondent s Motion at

83 agencies relating to the taking of a minor into custody, temporary custody, or detention (juvenile police records) should be confidential. ) (emphasis added); Cal. Ct. R (f) (requiring filing of JV-575 with the juvenile court to obtain information gathered by a law enforcement agency regarding the taking of a minor into custody); cf. Cal. Welf. & Inst. Code 828(a) (allowing disclosure of information gathered by a law enforcement agency regarding the taking of a minor into custody to other law enforcement agencies for purposes of official disposition of a case not for the initiation of a case). DHS argues, in a heading, that it did not violate the California Welfare & Institutions Code. DHS s Response at 10. Yet it is important to note that DHS does not actually address, aside from this heading, that the method of identifying and targeting juveniles does not violate California law. Indeed, DHS counsel states that she cannot speak specifically to procedures used at a juvenile facility. Id. at 11. Regardless, it is the use of information released in violation of California law whether the violation was on DHS s own part or on the part of the Agave County Probation Department in releasing the information that clearly justifies excluding the I- 213 on Fifth Amendment grounds. C. Richard s Statements to DHS Were Involuntary Given the Totality of the Circumstances Richard has provided the Court with complete factual and legal support for his claim that his statements to the DHS officer were involuntary and therefore, under the Fifth Amendment, cannot be used in these removal proceedings. Respondent s Motion at In turn, DHS essentially argues that the situation Richard encountered was not bad enough that there is no indication he was held for an unreasonable amount of time, or that the officer handcuffed Richard, or that the officer displayed a weapon or used any type of force or violence. 8

84 DHS s Response at 4, 8. DHS misses the point. Fifth Amendment analysis does not happen in a vacuum, but instead must incorporate Richard s own characteristics and pertinent authority. DHS makes a bald statement that Richard s affidavit does not support the claim that his interrogation was plagued by coercion and duress. DHS s Response at 4. Yet DHS cites not a single case for this proposition. It notes that Richard did not allege that the DHS officer interrogated him for a long time, handcuffed him, displayed a weapon, or used force, but provides no legal authority to show this is required. This absence of authority is particularly notable given that Richard was a 14 year old with diminished capacity, and the U.S. Supreme Court has repeatedly recognized that the voluntariness of minors admissions is judged differently from that of adults. See Gallegos v. Colorado, 370 U.S. 49, 54 (1962); Haley v. Ohio, 332 U.S. 596, 599 (1948). Richard had been threatened with deportation, he felt that he had no choice but to answer the DHS officer s questions, and a key DHS regulation was not followed, as outlined in the next Section. Roe Decl. 6, 9, 11. This suffices. BIA and Ninth Circuit case law makes this clear. In Matter of Garcia, the Board found that the respondent had come forward with a prima facie case that his admissions were involuntary and thus excluded under the Fifth Amendment. 17 I&N Dec. 319, 321 (BIA 1980). There was no indication that the immigration officer displayed a weapon, used force, or perpetrated violence. Id. Although the respondent initially was handcuffed, this did not factor into the Fifth Amendment analysis. Id. at Instead, the Board looked to the wearing down of the respondent s resolve, his giv[ing] up all hope of speaking with his lawyer or remaining in the United States, and his sense that he had no rights and did not know why he was in 9

85 custody. 4 Id. at 321. Notably, at that time the respondent was either 17 or 18 years old. See id. at 319 (respondent was arrested in August 1977 and was 20 years old in January 1980). If these facts violated the Fifth Amendment rights of an older youth with no articulated mental disability, the circumstances of Richard s interrogation clearly violated his. Likewise, in Choy v. Barber, 279 F.2d 642, 647 (9th Cir. 1960), the Ninth Circuit concluded that the respondent s incriminating statements were involuntary and thus violated due process. Again, there was no indication that the immigration officer displayed a weapon, used force, or perpetrated violence. Id. Instead, the focus was on the respondent s mental state as it was affected by a lengthy interrogation and threats of deportation and prosecution. Id. (mentioning the respondent was weary and distressed and experienced mental terror ). The respondent was a Korean adult, more sophisticated and capable than Richard. See id. at 643 (Choy had a master s degree in political science from the University of California, translated and taught Japanese for the U.S. government, and worked for the War Department). If such a respondent was forced into involuntary statements through the type of interrogation he suffered, so too was Richard. See id. at 646 (noting that Choy was highly-educated and did not suffer the degree of intimidation meted out to others, yet nonetheless merited exclusion of his statements). 5 Guided by Garcia and Choy, the Court should find that Richard s statements to the DHS officer were involuntary and thus inadmissible. 4 The Board noted not the length of the respondent s interrogation, but that a significant period of custody had elapsed. Id. Here, Richard has not alleged that his interrogation went on for hours. At that time, however, he had been in the locked Agave County Juvenile Facility awaiting adjudication for roughly a year. Roe Decl This extended period of custody, although not DHS custody, is relevant to Richard s state of mind and the voluntariness of his statements. 5 Generally, published cases in which no involuntariness was found involved either a lack of detailed evidence or non-custody situations. See, e.g., Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979) (no evidence of involuntariness where the respondent went to an INS office with her husband and made a statement); Barcenas, 19 I&N Dec. at 610 (no evidence of coercion 10

86 D. Richard Was Apprehended on November 7, 2008 and DHS Violated 8 C.F.R (h) by Failing to Provide Him an I-770 That Day Richard has established that under the Fifth Amendment regulatory exclusionary rule, as outlined by the Ninth Circuit in Chuyon Yon Hong v. Mukasey, 518 F.3d 1030, 1035 (9th Cir. 2008), the I-213 should not be admitted into evidence. Respondent s Motion at Specifically, Richard argues that DHS violated 8 C.F.R (h) by failing to provide him an I-770 on the day he was apprehended by DHS November 7, DHS does not dispute that Richard lacked an I-770 on November 7, 2008 or that not having one that day prejudiced him. Instead, DHS argues that Richard was not apprehended until March 11, Thus, the question comes down to what day Richard was apprehended for purposes of this regulation. The I-213 itself as well as Ninth Circuit and BIA decisions make clear that November 7, 2008 was the day DHS apprehended Richard. Essentially, DHS argues that apprehended means arrested. Yet the I-213 itself refutes this claim; it designates Richard s apprehension as November 7, The method of location/apprehension is designated as CLC and the date/hour is listed as 11/07/ See I-213 at 1. Further, the narrative regarding the particulars of how Richard was located/apprehended lists the interview on November 7, 2008 inside the Agave County Juvenile Facility. See id. at 2. Thus, DHS itself designated the 2008 interview not the March 11, 2009 arrest as an apprehension. or duress where officer approached respondent in front of a bus stop and questioned him); Ramirez-Sanchez, 17 I&N Dec. at 506 (no evidence of involuntariness where statements were counsel s and even if they had been respondent s, they lacked relevant factual detail); Toro, 17 I&N Dec. at 343 (no evidence of involuntariness where counsel simply stated that the respondent was intimidated into revealing some information on the I-213 ). 6 As spelled out in Richard s Motion, the regulation provides in part that [w]hen a juvenile alien is apprehended, he or she must be given a Form I-770, Notice of Rights and Disposition. 8 C.F.R (h). 11

87 Additionally, both the Ninth Circuit and the BIA have used language, in multiple cases, to indicate that apprehended and arrested are distinct terms. See United States v. Higuera- Llamos, 574 F.3d 1206, 1210 (9th Cir. 2009) (discussing defendant s admission of alienage at the time of apprehension and arrest by border patrol agents); United States v. Galindo-Gallegos, 244 F.3d 728, 2001 U.S. App. LEXIS 4891 at *11 (9th Cir. 2001) (noting legal significance where border patrol agents apprehend a substantial number of suspects and question them in the open prior to arrest ) (emphasis added); United States v. Orbino, 981 F.2d 1035, 1036 (9th Cir. 1992) (describing defendant being apprehended by local law enforcement prior to an INS arrest ); see also Matter of V, 1 I&N Dec. 293, 298 (BIA 1942) ( He drove them back to Douglas, Ariz., where they were apprehended and arrested. ). Notably, former Board Member Rosenberg made this distinction in a case involving the alienage of a minor. See Matter of Ponce-Hernandez, 22 I&N Dec. 784, 792 (BIA 1999) (dissent) (referring to a minor s being apprehended and arrested ). In these cases, the term apprehension is understood to be an act prior to arrest just as here DHS s locating Richard and interviewing him was prior to DHS s taking him into its custody. Richard was entitled to an I-770 on November 7, 2008, and DHS s failure to provide one justifies exclusion of the I-213. E. DHS Cannot Shore Up the Fatal Flaws Inherent in the I-213 Richard has demonstrated, regardless of the Court s rulings on the Fifth Amendment issues outlined above, that the I-213 cannot meet minimal evidentiary standards and is inherently unreliable because of its dubious source, inaccuracy, temporal gap between interrogation and creation, and lack of detail. Respondent s Motion at DHS has not refuted the latter two 12

88 grounds. Instead, it argues only that the source is known and the errors immaterial. It is incorrect. 7 First, Richard has stated clearly that he was not the source of much of the information on the I-213. Specifically, at a minimum, he provided no information on any arrest, street gang membership, aliases, military status, address or phone number. See Roe Decl. 13. Yet the I-213 contains this information. It reflects details of an arrest and alleged gang affiliation, it lists an alias, it comments on military status, and it provides an address and phone number in Agave County. Thus, if Richard did not provide this information, and it is on the I-213, then there undoubtedly is another source. This is not pure speculation and conjecture, regardless of what that other source might be. That Richard s case is not a mirror image of Hernandez-Guadarrama is not dispositive. Although it is true that in Hernandez-Guadarrama the I-213 s information came from two identified third parties rather than the respondent, the case nonetheless holds that source is crucial to an I-213 s admissibility. See 394 F.3d at 680. This is particularly important when the source is disputed. In Murphy v. INS, a case relied upon by Richard, cited by the Hernandez-Guadarrama Court, and ignored by DHS, the respondent alleged a source of information on the I-213 an INS informant that was not established. See 54 F.3d at 610. The Ninth Circuit held that the I-213 s indicia of untrustworthiness, underscored by no government witness to verify the source of the information, meant that it could not constitute clear and convincing evidence of alienage. Id. at The same is true of DHS s I-213 here. Second, Richard has provided evidence that the I-213 contains errors specific to him; these errors go directly to who he is and his fundamental characteristics. The I-213 contains, 7 Even were the Court to agree with DHS s arguments regarding the I-213 s source or errors, the other undisputed factors the temporal gap and the lack of detail continue to justify not admitting the I-213 into evidence. See Respondent s Motion at

89 among other errors, an incorrect date of birth, incorrect complete name and spelling and an incorrect alias for Richard. Roe Decl , 19. DHS does not dispute that the I-213 contains errors. Instead, it argues that the errors are immaterial. Its position leaves only one conclusion: A material error in DHS s eyes can be only an error in place of birth. Yet DHS cites nothing to support this proposition. In case after case, the BIA has consistently held that one test of an I- 213 s admissibility is whether there is any evidence that a Form I-213 contains information that is inaccurate. Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002) (citing Ponce- Hernandez and Barcenas). Although not every error will go to the heart of an I-213 s purpose, see Espinoza, 1995 U.S. App. LEXIS 7699 at *12, errors in who the subject of the form is errors in his identity clearly do. See Ponce-Hernandez, 22 I&N Dec. at 786 n.3 (determining whether the facts reflected on the Form I-213 adequately establish the respondent s identity and alienage ) (emphasis added). The errors in the I-213 go to Richard s identity and clearly undercut the document s reliability. It cannot sustain DHS s burden. F. DHS s Evidence-Based Argument Against the Implications of 8 C.F.R (c) Fails as Richard Has Indeed Provided Sufficient Indication of His Inability to Comprehend Richard has argued that the Court s accepting the I-213 to establish removability would violate the principles underlying 8 C.F.R (c). Respondent s Motion at DHS s sole response is that Richard has not provided substantiation of his mental retardation and, thus, presumably there is no basis upon which the Court would be barred from using the statements reflected in the I-213 as the only ground for finding Richard removable under the regulation. Cf Matter of Amaya-Castro, 21 I&N Dec. 583, 587 (BIA 1996). As demonstrated above, however, Richard has provided evidence of his mental retardation in the form of his own declaration. Regardless, iron-clad proof of incapacity is not required by BIA precedent indeed, 14

90 the Board specifically stated that it would rely upon an I-213 to establish removability because there was neither an assertion nor a reason to believe that a minor s characteristics impeded an exchange of basic information. Ponce-Hernandez, 22 I&N Dec. at 787 (emphasis added). Here, there is an assertion, a reason to believe, and indeed evidence of Richard s incapacity. As a result, the Court cannot rely upon any factual admissions by Richard unrepresented, 14 years old and suffering from mental retardation when DHS interrogated him that may be reflected on the I-213 to establish his removability. CONCLUSION For the reasons set forth in this Reply and Richard s previously-filed Motion, the Court should grant the Motion to Suppress Evidence and to Terminate Proceedings. DHS has failed to meet its heavy burden to establish Richard s alienage. Richard asks that the Court recognize this failure and terminate the case against him for lack of jurisdiction. Dated: January 25, 2011 Respectfully Submitted, PUBLIC COUNSEL By: KRISTEN JACKSON Attorneys for Respondent Richard Roe 15

91 APPENDIX 1.C Sample Motion to Terminate (Border Enforcement) 87

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112 Addendum to Motion to Terminate For those litigating improper treatment in extremely cold rooms, consider using material from the following articles and reports: Blake Gentry, Deprivation Not Deterrence report on CBP in short-term detention, by the Guatemala Acupuncture and Medical Aid Project, October 2014 (based on interviewing 33 families held in short-term detention from May to June 2014). No More Deaths 2011 report (out of 13,000 migrants surveyed, more than half reported inhumane conditions in temporary holding cells with extreme cold being the most common complaint; mistreatment often appeared to qualify as psychological abuse under UN definitions; documented over 30,000 incidents of abuse of adult and child immigrants) Americans for Immigrant Justice August 2013 report, The "Hieleras": A Report on Human & Civil Rights Abuses Committed by U.S. CBP (CBP Texas Rio Grande Valley Sector cells so cold that detainees' fingers and toes turn blue, their lips chap and split, and CBP staff refer to the cells as hieleras or iceboxes; sleeping on cold floors especially difficult because bright overhead lights kept on around the clock) American Civil Liberties Union Shadow Report to the 3rd-5th Periodic Reports of the United States, Submitted to the 53rd Session of the UN Committee Against Torture at 52 (Oct. 20, 2014) (reporting the June 2014 complaint to DHS based on 116 cases of abhorrent treatment of unaccompanied minors at border patrol stations). 0CBP%20Abuse%20of%20UICs.pdf. Complaint to Department of Homeland Security, Office of Civil Rights and Civil Liberties and Office of Inspector General, Regarding Systemic Abuse of Unaccompanied Immigrant Children by U.S. Customs and Border Protection (June 11, 2014) National Immigrant Justice Center, Unaccompanied Immigrant Children: A Policy Brief (January 2014). The Policy Brief was based on consultations with 224 children held in Chicago-area ORR shelters in December 2013 and January % of children reported being held in hieleras or iceboxes.

113 Ed Pilkington, The Guardian, 'It was cold, very cold': migrant children endure border patrol 'ice boxes,' Jan. 26, Ed Pilkington, The Guardian, Freezing cells and sleep deprivation: the brutal conditions migrants still face after capture, Dec. 12, 2014.

114 APPENDIX 2.A Redacted I-770 (English) 110

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127 Jennifer Casey, Esq. KOLKO & ASSOCIATES, P.C. 303 East 17 th Avenue, Suite 585 Denver, CO Phone: (303) Fax: (303) Attorney for Respondent UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO In the Matter of: ) ) File No. A ) ) Respondent ) ) Immigration Judge Mimi Tsankov Hearing Date: RESPONDENT S MOTION TO TERMINATE REMOVAL PROCEEDINGS

128 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO In the Matter of: ) ) ) File No. A ) ) Respondent ) ) Tab TABLE OF CONTENTS Page Motion to Terminate Removal Proceedings 1-11 A) Form I-770 (dated September 11, 2013) B) Sworn Statement of Respondent [with certified English Translation] C) Proof of Service. 16

129 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO In the Matter of: ) A ) ) ) Motion to Terminate Removal Proceedings ) ) Respondent ) Honorable Judge Tsankov ) RESPONDENT S MOTION TO TERMINATE REMOVAL PROCEEDINGS I. Introduction Respondent, by and through KOLKO & ASSOCIATES, P.C. and JENNIFER CASEY, ESQ., hereby respectfully moves this Honorable Court grant Respondent s Motion to Terminate Removal Proceedings. 1 Respondent respectfully asserts that the Department of Homeland Security s (DHS or Department) failure to comply with Sections 236.3(h) and (h) of Title 8 of the Code of Federal Regulations (CFR) is a violation of the Respondent s right to fundamental fairness and due process of law and therefore mandates termination of the instant removal proceedings. 1 As argued in Respondent s ************ Motion to Terminate Removal Proceedings, Respondent maintains that under 8 CFR this Court does not have jurisdiction over the instant proceedings due to the Department of Homeland Security s (DHS or Department) failure to comply with the Notice requirements under INA 239 and 8 CFR , 103.2(c)(2)(ii). However, in light of the Court s determination that jurisdiction is proper before the Court, Respondent asserts that termination is mandated for the Department s failure to adhere to constitutionally required regulatory obligations.

130 In light of the foregoing, Respondent respectfully requests this Honorable Court to terminate removal proceedings. II. Statement of the Case Respondent is currently a fifteen (15) year old child. In early September of 2013, 2 Respondent was apprehended by DHS officials near Hidalgo, Texas. At the time of his apprehension, Respondent spoke only his native language of Spanish. Respondent asserts that he was apprehended by DHS near the U.S./Mexico Border. See Tab B. Respondent asserts that immediately after his apprehension he was taken to a hielera a very cold holding cell. See Tab B. At this time, he was forced to remove most of his clothes, he was crying and afraid. See Tab B. Respondent was subsequently transferred to a second hielera. See Tab B. At this location, Respondent was questioned by DHS officials in a mixture of Spanish and English about his reasons for traveling to the United States. When Respondent stated that he traveled to the United States because he was fleeing gangs that had threatened him and his grandmother, he was laughed at by DHS officials and told that he needed a better reason than that and was repeatedly questioned about the real reason he came to the United States. See Tab B. The DHS officials questioning Respondent told him that he was required to sign papers that they put in front of him. See Tab B. Respondent explicitly asked whether he was required to sign the papers. See Tab B. In response to his question, a DHS official informed him that he 2 The Respondent is uncertain of the actual date of his apprehension by DHS authorities, the date is likely on or around September 10, 2013 or September 11, The NTA (Form I-862), Notice of Rights (Form I-770), Record of Deportable/Inadmissible Alien (Form I-213) are all dated September 11, Respondent was fourteen (14) years of age on the date of his apprehension by DHS.

131 was required to sign the papers and that if he did not sign the papers, he would be kept in the hielera for a long time and he would be deported. See Tab B. The DHS officials did not read any of the papers to Respondent. See Tab B. The DHS officials did not give the papers to Respondent for him to read prior to signing. See Tab B. Respondent was not permitted to sit down or review any of the papers or documents before he signed. See Tab B. Respondent was forced to remain standing and the DHS officials pointed to every place on a variety of papers where he was supposed to sign. See Tab B. Respondent recalls signing his initials ABC. where the DHS officer pointed. See Tab B. Respondent s Alien File contains a Notice of Rights/Aviso de los Derechos y Disposicion (Form I-770 Spanish language version) dated September 11, 2013 that bears Respondent s initials ABC. See Tab A. After Respondent signed the documents that DHS indicated were required, Respondent was provided with some juice and then transferred to a third hielera. The Department did not provide Respondent with a copy of any of the papers or documents he signed at this time. See Tab B. On September 13, 2013, Respondent was transferred to the custody of U.S. Department of Health & Human Services (HHS) Office of Refugee Resettlement (ORR) in Harlingen, Texas. On September 16, 2013, DHS filed a Notice to Appear (NTA) with the Harlingen, Texas Immigration Court. On September 25, 2013, Respondent was released to the custody of his father. Upon his release from ORR custody, ORR provided Respondent with a packet that included a copy of the

132 Notice to Appear (Form I-862) and Notice of Rights (Form I-770). Prior to September 25, 2013, Respondent had neither seen, nor had the opportunity to read or review either of these documents. See Tab B. III. Legal Discussion Removal proceedings shall be invalidated where the government fails to comply with its regulatory obligation if the regulation was enacted to benefit the Respondent and if the Respondent is prejudiced by the regulatory violation. See Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980). In cases where compliance with the regulation is mandated by the Constitution, prejudice may be presumed. Id. at 328 (emphasis supplied). See also Waldron v. INS, 17 F.3d 511, 581 (2d Cir. 1993) (when a regulation protects a fundamental right derived from the Constitution or a federal statute, and the [DHS] fails to adhere to it, the challenged deportation proceeding is invalid and a remand to the agency is required). In the instant case, removal proceedings must be terminated because DHS failed to adhere to the regulatory requirement for providing Respondent with a Notice of Rights and Disposition (Form I-770) as required by 8 CFR 236.3(h), (h). The regulations at issue serve the purpose of benefitting Respondent. Further, prejudice to Respondent is presumed because adherence to the regulation is mandated under the Due Process Clause of the U.S. Constitution. A. Removal Proceedings must be terminated because the Department failed to comply with its constitutionally mandated obligations under 8 CFR 236.3(h), (h) to give to and explain to Respondent his Notice of Rights and Disposition (Form I-770) at the time of his apprehension. 1. DHS s provision of Form I-770 Notice of Rights and Disposition to juveniles is required under 8 CFR (h) and (h).

133 Sections 236.3(h) and (h) of Title 8 of the CFR require the DHS to provide all juveniles with a Notice of Rights and Disposition (Form I-770). This Notice of Rights provides the juvenile alien with an explicit notice that although he has been arrested by DHS, he has certain rights that he cannot be denied. Those rights include the right to use the telephone to call a parent or other adult relative; the right to speak with a lawyer; and the right to a hearing in front of an immigration judge. See Tab A. Sections 236.3(h) and (h) (2014) provide: When a juvenile 3 alien is apprehended, he or she must be given a Form I-770, Notice of Rights and Disposition. If the juvenile is less than 14 years of age or unable to understand the notice, the notice shall be read and explained to the juvenile in a language he or she understands. 8 CFR 236.3(h), (h) (emphasis supplied). The Regulations explicitly dictate the form and manner in which the Notice of Rights must be provided to the juvenile. See 8 CFR 236.3(h), (h). First, DHS must give the Notice of Rights and Disposition to the juvenile. Id. Second, if the juvenile is under 14, DHS shall read and explain the Notice of Rights to the juvenile in a language that he or she understands. Id. Furthermore, regardless of the juvenile s age, if the juvenile is unable to understand the Notice of Rights, DHS shall read and explain the Notice of Rights to the juvenile in a language that he or she understands. Id. The Regulations mandate that an apprehended juvenile be given this Notice of Rights when he is apprehended (i.e., at the time of apprehension) in order to ensure that the juvenile is aware of his rights before making any statements or signing any documents that could be prejudicial to the juvenile. See 8 CFR 236.3(h), (h). Importantly, as evidenced by the plain language of the Regulation and the use of the 3 A juvenile is an alien under the age of 18 years. 8 CFR 236.3(a), (a) (2014).

134 terms must and shall, Department compliance with this regulation is not discretionary or optional, it is required. See id. 2. The Regulations at 8 CFR (h) and (h) serve the purpose of benefitting Respondent. The regulatory and judicial history behind this regulation confirms that the regulation was implemented in order to protect the due process rights of children in deportation proceedings and thus benefit Respondent and those similarly situated. The legacy Immigration and Naturalization Service s (INS) initially published the Notice of Rights regulatory provision on May 1, 1988 as 8 CFR (h). See 53 Fed. Reg , (May 17, 1988), 8 CFR (1988). 4 The preamble to Section articulates the INS s paramount concern of the welfare of minors in Service custody. See 53 Fed. Reg , (May 17, 1988). The U.S. Supreme Court also noted that the explicit purpose of section is to protect the welfare of the juvenile. Reno v. Flores, 507 U.S. 292, 311 (1993) (internal citations omitted). Further, with respect to subsection (h) of Section , the Service directly incorporated language from the Court Order in Perez-Funez v. District Director, INS, 619 F. Supp. 656 (D.C. Cal, 1985) into the regulation. In that case, the court ordered the legacy INS to provide certain specific advisals to unaccompanied children including a simplified notice of their rights. See Perez-Funez, INS, 619 F. Supp. at 669. Those specific advisals were then incorporated into the 8 CFR (h) in See 53 Fed. Reg , (May 17, 1988). Indeed, the regulatory framework which includes 8 CFR (formerly 8 CFR ) contemplates that no minor alien under age eighteen should be presumed responsible for 4 On March 6, 1997, 8 CFR 242(h) was removed and re-designated as 8 CFR 236.3(h) and (h). See 62 Fed. Reg (Mar. 6, 1997).

135 understanding his rights and responsibilities in preparing for and appearing at final immigration proceedings. See Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1157 (9th Cir. 2004). It is abundantly clear that the Notice of Rights provision contained in the regulation was implemented in order to benefit children under 18 apprehended at the border in order to protect children s due process rights after their apprehension and detention by the Department of Homeland Security. 3. The Department failed to adhere to its regulatory requirements under 8 CFR 236.3(h) and (h). Respondent s attached sworn declaration clearly articulates the procedures that the DHS applied to him at the time of his apprehension. See Tab B. Respondent was not permitted to read any of the documents DHS provided to him. See Tab B. Respondent was told that he was required to sign all of the documents and that if he failed to sign he would be detained for a longer period of time and deported. See Tab B. Respondent was not explained any of his rights by any DHS official. See Tab B. The mere fact that the record contains a Form I-770 bearing the Respondent s initials is not dispositive of DHS compliance with the regulations. Respondent s credible sworn affidavit evidences a DHS practice designed to move Respondent through the process without any meaningful advisal of his legal rights. In this case, DHS actions were grossly out of sync with both the spirit and function of the regulations. 4. Prejudice to Respondent is presumed because the Due Process Clause of the U.S. Constitution mandates compliance Sections 236.3(h) and (h) of Title 8 for children under the age of 18. Few principles are more deeply etched in the body of immigration law than that which provides that the Fifth Amendment of the U.S. Constitution entitles aliens to due process of law

136 in deportation proceedings. Reno, 507 U.S. 292 (citing The Japanese Immigrant Case, 189 U.S. 86, (1903)); Ferry v. Gonzales, 457 F.3d 1117, 1129 (10th Cir. 2006); Matter of G-, 20 I&N Dec. 764, 780 (BIA 1993). Unaccompanied alien children possess substantial constitutional and statutory rights. These rights exist in spite of the minors illegal entry into the country. See Mathews v. Diaz, 426 U.S. 67, 77 (1976). Further, children have a very special place in life which law should reflect. May v. Anderson, 345 U.S. 528, 536 (1953) (Frankfurter, J., concurring). The Notice of Rights requirements, such as those established in 8 CFR 236.3(h), implicate the due process rights of juveniles, as minors generally cannot appreciate or navigate the rules of or rights surrounding final proceedings that significantly impact their liberty interests. See e.g., In re Gault, 387 U.S. 1, (1967); see also United States v. Watts, 513 F.2d 5, 7-8 (10th Cir. 1975); Holloway v. Wainwright, 451 F.2d 149, 151 (5th Cir. 1971); Kemplen v. Maryland, 428 F.2d 169, 175 (4th Cir. 1970). Critically, in Perez-Funez, the very holding and court order that resulted in the INS s inclusion of the Notice of Rights provision at 8 CFR (h), the court held that the right to a deportation hearing and the various rights associated therewith constitute a substantial liberty interest on the part of [juvenile aliens]. Given the interests at stake and the tender ages of the possessors of those interests, the Court must carefully scrutinize the risk of erroneous deprivation. See Perez-Funez, 619 F. Supp. at 660 (C.D. Cal. 1985). The Court went on to find that permitting unaccompanied children under the age of 18 to agree to Voluntary Departure without a detailed explanation of their legal rights was a violation of due process stating, it is the policies and procedures themselves that are constitutionally infirm. See id. at 669 (emphasis supplied).

137 In light of the above, the Respondent respectfully asserts that the Department s compliance with the regulations delineated at 8 CFR 236.3(h) and (h) are Constitutionally mandated in order to ensure that child alien respondents due process rights are protected. As such, Respondent asserts that prejudice is presumed from the Department s failure to adhere to 8 CFR 236.3(h) and (h) and removal proceedings must be invalidated and terminated. See Matter of Garcia-Flores, 17 I&N Dec. 325; see also Waldron v. INS, 17 F.3d at 581. IV. Conclusion The Department s failure to comply with the Regulations enacted to protect juvenile s due process rights requires this Honorable Court to terminate removal proceedings. See Matter of Garcia-Flores, 17 I&N Dec In light of the foregoing, Respondent respectfully requests this Honorable Court to terminate removal proceedings. Respectfully submitted, RESPONDENT By: Jennifer Casey, Esq. Kolko & Associates, P.C. 303 East 17 th Avenue, Suite 585 Denver, CO Telephone: (303)

138 Fax: (303) Dated: January 30, 2015

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146 APPENDIX 5.A Sample Motions to Terminate Based on NTA 142

147 NICKOLE MILLER (Bar No ) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA Telephone (213) , ext. 192 Facsimile (213) Pro Bono Counsel for Respondent JOHN DOE UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT LOS ANGELES, CALIFORNIA ) In the Matter of: ) ) ) File No. A XXX-XXX-XXX JOHN DOE ) ) ) In Removal Proceedings ) ) Immigration Judge A. Ashley Tabaddor Hearing: XX/XX/2015 at 9:00 AM RESPONDENT S MOTION TO TERMINATE PROCEEDINGS

148 Seventeen-year-old respondent, JOHN DOE, through pro bono counsel, moves this Court to terminate proceedings. This Court lacks jurisdiction because the Department of Homeland Security (DHS) failed to serve JOHN s Notice to Appear (NTA) in compliance with Section 239(a)(1) of the Immigration and Nationality Act, 8 CFR , and Flores-Chavez v. Ashcroft, 362 F.3d 1150, 1163 (9th Cir. 2004) prior to filing it with the Court. Alternatively, even if jurisdiction vested, proceedings must be terminated because DHS violated JOHN s constitutionally-protected rights by failing to properly serve the NTA. PROCEDURAL HISTORY DHS apprehended JOHN near Hidalgo, Texas in August Declaration of JOHN DOE 2 (attached at Tab A). While in DHS custody, JOHN was given documents to sign. Id. 3. The documents were in English, which JOHN did not speak, read, or write. Id. The DHS officer did not clearly explain what the documents were; he simply stated the documents were to verify that JOHN was detained by immigration. Id. The officer told JOHN he had to sign the papers, which JOHN did. Id. It appears that one of these documents he signed was his NTA. See Form I-862 at 5 (attached at Tab B). The officer did not give JOHN copies of the documents he signed. Tab A 3. DHS later transferred JOHN to an Office of Refugee Resettlement (ORR) shelter. See Tab A 4. No one served JOHN with the NTA while he was at the shelter. Id. In late August 2014, ORR released JOHN to his mother JANE DOE. Id.; Declaration of JANE DOE 2 (attached at Tab C). JOHN travelled by plane from Texas to California, accompanied by a man he did not know. Tab A 5. Upon arrival in California, the man who accompanied JOHN presented him with a packet of documents and instructed him to give the packet to his mother, who met him at the airport. Id. JOHN s NTA was not inside the packet. Tab C 7. The man 1

149 asked JOHN s mother to sign a form, which she did, but she did not understand what she was signing and was not given a copy of the document. Id. 6. On October 2, 2014, DHS filed JOHN s NTA with the Court. See Tab B at 4. The NTA s Certificate of Service reflects that on August 22, 2014, JOHN was personally served with the NTA and was given oral notice in Spanish of the time and place of his hearing and of the consequences of the failure to appear, as well as a list of free legal services. Id. at 5. Contrary to the NTA s Certificate of Service, DHS did not provide JOHN with a copy of the NTA or any other papers or documents that he signed. Tab A 3. JOHN was not notified of his rights or the charges against him. Id. The NTA s Certificate of Service does not reflect NTA service on JANE, his mother and ORR sponsor. See Tab B at 5. At no point before DHS filed the NTA with the Court was JANE served with JOHN s NTA either personally or by mail. Tab C 4, 7; see Tab A 6. On XX/XX/2014 and XX/XX/2014, JOHN appeared before this Court and he was given continuances to secure counsel. On XX/XX/2015, he again appeared before this Court with current pro bono counsel. At that hearing, DHS produced a copy of JOHN s NTA. Prior to that hearing, neither JOHN nor his mother had been given a copy of JOHN s NTA. Tab A 3, 6; Tab C 4, 6-7. JOHN, through counsel, raised the issue of improper NTA service. The Court continued JOHN s hearing to XX/XX/2015 to allow for the filing of this Motion. 2

150 ARGUMENT A. Prompt NTA Service upon JOHN and His Mother Was Required Under the Governing Statute, Regulations, and Flores-Chavez JOHN is entitled to proper and timely service of his NTA. The INA provides: In removal proceedings under section 240, written notice (in this section referred to as a notice to appear ) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien's counsel of record, if any).... INA 239(a)(1) (emphasis added). Importantly, proper NTA service cannot be achieved by simply showing a person his NTA or having him sign for his NTA. Instead, written notice must be given to comply with INA 239(a)(1). See 8 C.F.R (requiring that such service shall be in person or by first class mail to the most recent address contained in the Record of Proceeding and a certification showing service shall accompany any filing with the Immigration Judge ). Only following proper service can an NTA be filed that vests jurisdiction in the Court. 8 C.F.R (a). But because JOHN resides within the Ninth Circuit, even more is required. Just as JOHN was entitled to proper NTA service on himself, so too was he entitled to proper NTA service on his ORR sponsor in this case, his mother. In Flores-Chavez, the Ninth Circuit held that due process and 8 C.F.R (now 236.3) require that service be made both to the juvenile... and to the person to whom the regulation authorizes release. 362 F.3d at And this service cannot be effectuated at any time DHS chooses. Instead, it must happen when the child is released from federal custody: Thus, when the INS releases a minor alien to an adult s custody pursuant to 8 C.F.R , thereby making that adult responsible for the minor s future appearance at immigration proceedings, the agency must serve notice of the minor s rights and responsibilities upon that adult if the minor is under eighteen. 3

151 Id. at 1163 (emphasis added). No discretion is allowed; the duty is mandatory. That the BIA has refused to apply Flores-Chavez outside of the Ninth Circuit does not change these requirements. See Matter of Cubor-Cruz, 25 I&N Dec. 470, 472 (BIA 2011). First, Cubor-Cruz turns upon 8 C.F.R a(c)(2)(ii) a regulation with an explicit age 14 cutoff not 8 C.F.R at issue in Flores-Chavez. See Cubor-Cruz, 25 I&N Dec. at 472. Second, post Cubor-Cruz the BIA continues to apply Flores-Chavez in the Ninth Circuit, as rightly it should. See Justo Rojop-Hernandez, A (BIA Apr. 23, 2014) (attached at Tab D). Cubor-Cruz has no bearing on JOHN s case. B. Jurisdiction Has Not Vested with the Court and Thus Termination Is Required The Court must terminate these removal proceedings because DHS failed to comply with INA 239(a)(1) and Flores-Chavez prior to filing the NTA. This error, which is not mendable in the course of these proceedings, means that jurisdiction never vested with the Court. The Court has no choice but to terminate these proceedings. 1. Jurisdiction Vests with the Court Only Upon the Filing of an NTA that Has Been Properly Served Proper NTA service is a prerequisite to this Court s jurisdiction. The filing of an NTA which include[s] a certificate showing service on the opposing party triggers jurisdiction. See 8 C.F.R (a). Both the Ninth Circuit and the BIA have recognized the service requirement as jurisdictional under 8 C.F.R See Kohli v. Gonzales, 473 F.3d 1061, 1065 (9th Cir. 2007) ( [J]urisdiction vests in the Immigration Court when a charging document is filed with the Immigration Court. Section requires a certificate showing service, but does not suggest that there are any other jurisdictional requirements. ) (citations omitted); Matter of G-Y-R-, 23 I&N Dec. 181, 184 (BIA 2001) ( The alien must be properly served with the Notice to Appear before... the Immigration Judge is authorized to proceed.... ) 4

152 (emphasis added). 1 So has the Office of the Chief Immigration Judge. See Immigration Court Practice Manual, Chapter 4.2(a) (June 10, 2013) ( Removal proceedings begin when the Department of Homeland Security files a Notice to Appear (Form I-862) with the Immigration Court after it is served on the alien. (emphasis added)). Without service, jurisdiction does not vest. 2. In JOHN s Case, Jurisdiction Did Not Vest Because DHS Did Not Serve Him with the NTA Before It Filed the NTA with the Court JOHN s NTA does show personal service upon him. See Tab B at 5. This Certificate of Service, however, is meaningless. JOHN has presented evidence that in fact DHS did not serve him with an NTA prior to filing it with the Court on October 2, See Tab A 3, 5-6; Tab C 7. The NTA was not personally served on JOHN. Id. The NTA was not mailed to JOHN. Id. 6. Despite DHS s representation on the face of the NTA that it personally served JOHN with the NTA on August 22, 2014, DHS never served JOHN. Any subsequent service of JOHN s NTA upon him cannot cure this jurisdictional flaw. If that were intended, the regulations could have made this explicit. But they do not. This is in stark contrast to 8 C.F.R , which provides for the curing of problems related to an NTA s charges or factual allegations in the course of the removal proceedings themselves. See 8 C.F.R (allowing DHS to lodge additional or substituted charges of deportability and/or factual allegations in the proceedings). Using accepted rules of interpretation, their silence dictates the conclusion that improper initial NTA service is non-curable. See Elkins v. Moreno, 435 U.S. 647, 666 (1978) (absence of reference to an immigrant s intent to remain a citizen of a 1 Cf. Mason v. Genisco Technology Corp., 960 F.2d 849, 854 (9th Cir. 1992); Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) ( A federal court does not have jurisdiction over a defendant unless the defendant has been served properly.... ); Jackson v. Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982) ( Neither actual notice nor simply naming the person in the caption of the complaint will subject defendants to personal jurisdiction if service was not made in substantial compliance with Rule 4 [of the Federal Rules of Civil Procedure]. ) (citations omitted). 5

153 foreign country is deliberate when contrasted with other provisions of comprehensive and complete immigration code). 3. In JOHN s Case, Jurisdiction Did Not Vest Because the NTA Did Not Reflect Legally-Sufficient Service on His Mother Even if the Court concludes that DHS s Certificate of Service is enough to establish service on JOHN himself, the Court still lacks jurisdiction over his case. It is undisputed that the Certificate of Service fails to show timely service upon his mother as required by Flores-Chavez. See Tab B at 5. This is unsurprising, as this service was not perfected. See Tab C 4, 6-7. As a result, the Certificate of Service cannot be considered to have showed legally-sufficient service on the opposing party as required by 8 C.F.R Because of this defect, jurisdiction did not vest with the Court upon the NTA s filing. Terminating removal proceedings is the only remedy, as the Court lacks jurisdiction to take any other action. See Matter of Mejia-Andino, 23 I&N Dec. 533, 537 (BIA 2002) (concluding Immigration Judge properly terminated child s removal proceedings when NTA service was deficient). That the Ninth Circuit in Flores-Chavez did not terminate removal proceedings for lack of jurisdiction is of no consequence. The Ninth Circuit s review is limited to the arguments presented to the BIA. See Segura v. Holder, 605 F.3d 1063, (9th Cir. 2010) (no jurisdiction over legal claims not presented in administrative proceedings below). Lack of EOIR jurisdiction was not argued in the Flores-Chavez case, as far as the opinion shows. See 362 F.3d at 1153 (the BIA rejected Flores claim that he did not receive proper notice ). Thus the Ninth Circuit s remand provides absolutely no support for the idea that proper service is nonjurisdictional. By contrast, the Ninth Circuit opened the door for Flores-Chavez to make all arguments available to him in his reopened proceedings, including jurisdictional ones. See Matter of M-S-, 22 I&N Dec. 349, 353 (BIA 1998) ( to rescind an in absentia deportation order 6

154 is to annul from the beginning all of the determinations reached in the in absentia hearing and [o]nce an in absentia order is rescinded, the alien is then given a new opportunity to litigate the issues previously resolved against her at the in absentia hearing. ). C. Even if the Court Determines It Has Jurisdiction, It Must Nonetheless Terminate JOHN s Removal Proceedings The Court must terminate these removal proceedings because DHS failed to comply with 8 C.F.R , as interpreted by Flores-Chavez. 2 This regulation serves a purpose of benefit to children like JOHN, and prejudice is presumed because compliance with the regulation is mandated by the Constitution. Matter of Garcia-Flores, 17 I&N Dec. 325, 329 (BIA 1980). Termination is required. 1. The BIA and Ninth Circuit Require DHS Compliance with Its Regulations at Peril of Termination As a general rule, to obtain termination of proceedings based on a regulatory violation a respondent must first show that the regulation serves a purpose of benefit to him. Id.; see also United States v. Calderon-Medina, 591 F.2d 529, 531 (9th Cir. 1979). Then, he must show that the violation prejudiced interests of the [respondent] which were protected by the violation. Calderon-Medina, 591 F.2d at 531. Prejudice is presumed, however, when compliance with the regulation is mandated by the Constitution. Garcia-Flores, 17 I&N Dec. at 329. The Ninth Circuit has recently underscored that some regulatory violations are so serious as to be reversible error without a showing of prejudice. Montes-Lopez v. Holder, 694 F.3d 1085, 1093 (9th Cir. 2012) (holding that prejudice is not required for denial of right to counsel based, in part, on violation of 8 C.F.R (a)(1)-(2)) (internal citation and quotation omitted). 2 The regulation at issue in Flores-Chavez was 8 C.F.R , which the Ninth Circuit noted was recodified at 8 C.F.R with its substantive provisions [] largely unchanged. See Flores-Chavez, 362 F.3d at 1153 n.1. 8 C.F.R is the regulation operative in JOHN s case. 7

155 2. 8 C.F.R , as Interpreted by Flores-Chavez, Serves a Purpose of Benefit to JOHN It is beyond dispute that 8 C.F.R , as interpreted by Flores-Chavez, serves to benefit JOHN and other children like him: It ensures effective notice of their proceedings, and their right to be heard. See Flores-Chavez, 362 F.3d at 1157 ( As the Supreme Court noted in Reno v. Flores,... the explicit purpose of section [236.3] is to protect the welfare of the juvenile. ). Children enjoy a due process right in removal proceedings to notice of, among other things, the nature of the proceedings and the charges lodged against them. See Dobrata v. INS, 311 F.3d 1206, 1210 (9th Cir. 2002) ( Aliens facing deportation are entitled to due process under the Fifth Amendment to the United States Constitution, encompassing a full and fair hearing and notice of that hearing. ). 8 C.F.R s requirement, as interpreted by the Ninth Circuit, that DHS provide notice to ORR sponsors for all children under eighteen implements this constitutional guarantee. Cf. United States v. Caceres, 440 U.S. 741, 749 (1979) ( A court s duty to enforce an agency regulation is most evident when compliance with the regulation is mandated by the Constitution or federal law. ). It is children, not DHS or the Court, who are the beneficiaries of this heightened notice requirement. Unsurprisingly, two key cases that rejected challenges to NTA service did not find that child-specific notice requirements failed to serve a purpose of benefit to children. See Nolasco v. Holder, 637 F.3d 159 (2d Cir. 2011); Cubor- Cruz, 25 I&N Dec Compliance with 8 C.F.R , as Interpreted by Flores-Chavez, Is Clearly Mandated by the Constitution and Thus Prejudice Is Presumed The Court need look no further than the face of Flores-Chavez to see that compliance with the notice requirement the Ninth Circuit read into 8 C.F.R is mandated by the Constitution. The court specifically interpreted 8 C.F.R to require notice to ORR 8

156 sponsors because not to do so contravenes the purpose behind the underlying regulatory framework and raises a possible due process violation. Flores-Chavez, 362 F.3d at In performing the procedural due process analysis under Mathews v. Eldridge, 424 U.S. 319 (1976), the Ninth Circuit concluded that serving notice on the adult who takes custody of a juvenile alien is a vitally important step in ensuring that juveniles are given a meaningful chance to be heard. Id. at Without it, serious constitutional due process questions would be raised questions that the Ninth Circuit indicated would create grave doubts about the propriety of notice. Id. at 1162 (quotation and citation omitted). That prejudice must be presumed is further underscored by the fact that Flores-Chavez s rule applies even when the children are themselves served and receive actual notice of the proceedings. See United States v. Nahun-Torres, CR SI, 2013 WL , *2, *8-*10 (N.D. Cal. Jan. 10, 2013) (due process rights of a sixteenyear-old child were violated where his father was not served with a copy of the NTA, even though the child was personally served) (attached at Tab E); United States v. Nunez-Velasco, CR RHW, 2011 WL , *3 (E.D. Wash. Sept. 2, 2011) (service was improper where no notice was sent to [respondent s] father ) (attached at Tab F). Prejudice to JOHN, in light of DHS s clear violation of 8 C.F.R as interpreted in Flores-Chavez, is presumed. 3 Were this case arising in the Second Circuit, or in a jurisdiction without governing circuit court case law, the result might well be different. See Nolasco, 637 F.3d at 163 (deficient service of a child s NTA does not implicate a fundamental right where the child appeared in court); 3 As such, the notion that Flores-Chavez s rule somehow applies only in the in absentia context is incorrect. The Ninth Circuit announced a rule to protect children s due process rights, not merely a remedy when an in absentia order has issued. See Flores-Chavez, 362 F.3d at 1163 (announcing the holding with no reference to the in absentia order). Indeed, Flores-Chavez is properly read to prevent in absentia orders against children who fail to receive notice calculated to ensure their presence in court by requiring Immigration Judges to hold DHS to a higher notice standard. See Nunez-Velasco, 2011 WL , *3 ( [T]he Government must prove by clear, unequivocal, and convincing evidence that written notice was so provided to the alien. 8 U.S.C. 1229a(b)(5)(A). After Flores- Chavez, this notice would include that to his guardian. ). That a child with an in absentia order may more readily show prejudice when child-specific notice provisions are violated in no way indicates that actual prejudice is required to warrant termination. 9

157 Cubor-Cruz, 25 I&N Dec. at 473 ( We therefore conclude that personal service of the Notice to Appear on a minor who is 14 years of age or older at the time of service is effective, even though notice is not served on the adult with responsibility for the minor. ). But that is not the situation. JOHN s proceedings are firmly governed by the additional, child-sensitive notice provisions articulated in Flores-Chavez. Until that case is overruled by the Ninth Circuit, or by the U.S. Supreme Court, this Court is bound to follow it. In sum, because (1) DHS violated 8 C.F.R , as interpreted by the Ninth Circuit, (2) the regulation serves to benefit JOHN, and (3) prejudice is presumed, the Court must terminate JOHN s proceedings. * * * This Court lacks jurisdiction over JOHN s case. Even if the Court finds that it has jurisdiction, it must nonetheless terminate his removal proceedings because DHS violated JOHN s constitutionally-protected rights when it failed to properly serve his NTA. JOHN requests that the Court grant his Motion to Terminate Proceedings. Dated: February 20, 2015 Respectfully submitted, Nickole Miller, Esq., Pro Bono Attorney for the Respondent Public Counsel 610 S. Ardmore Avenue Los Angeles, CA Telephone: (213) x.192 Fax: (213) nmiller@publiccounsel.org 10

158 TABLE OF CONTENTS TAB PAGES A Declaration of JOHN DOE 1-3 B JOHN DOE s Form I C Declaration of JANE DOE 6-8 D Justo Rojop-Hernandez, A (BIA Apr. 23, 2014) 9-10 E United States v. Nahun-Torres, CR SI, 2013 WL (N.D. Cal. Jan. 10, 2013) F United States v. Nunez-Velasco, CR RHW, 2011 WL (E.D. Wash. Sept. 2, 2011)

159 APPENDIX 5.B Sample Motions to Terminate Based on NTA 155

160 Jennifer Casey, Esq. KOLKO & ASSOCIATES, P.C. 303 East 17 th Avenue, Suite 585 Denver, CO Phone: (303) Fax: (303) Attorney for Respondent UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO In the Matter of: ) ) File No. A ) ) Respondent ) ) Immigration Judge Hearing Date: RESPONDENT S MOTION TO TERMINATE REMOVAL PROCEEDINGS

161 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE OF IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO In the Matter of: ) ) ) File No. A ) ) Respondent ) ) Tab TABLE OF CONTENTS Page Motion to Terminate Removal Proceedings 1-10 A) Notice to Appear (dated September 11, 2013) B) Form I-213 (dated September 11, 2013) C) Sworn Statement of Respondent[with certified English translation] D) Sworn Statement of Respondent s father E) Proof of Service 25

162 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DENVER, COLORADO In the Matter of: ) A ) ) ) Motion to Terminate Removal Proceedings ) ) Respondent ) Honorable Judge ) RESPONDENT S MOTION TO TERMINATE REMOVAL PROCEEDINGS I. Introduction Respondent, by and through KOLKO & ASSOCIATES, P.C. and JENNIFER CASEY, ESQ., hereby respectfully moves this Honorable Court grant Respondent s Motion to Terminate Removal Proceedings. Respondent respectfully asserts that under Section of Title 8 of the Code of Federal Regulations (CFR), this Honorable Court does not have jurisdiction over the instant proceedings due to the Department of Homeland Security (DHS or Department) failure to serve Respondent with the Notice to Appear (NTA) in compliance with Section 239(a)(1) of the Immigration and Nationality Act (INA or Act). In light of the fact that jurisdiction has not vested with this Honorable Court, removal proceedings must be terminated. See 8 CFR Alternatively, Respondent asserts that the Department s failure to comply with the service requirements under 8 CFR 103.8(c)(2)(ii) also mandates termination of proceedings.

163 II. Statement of Case Respondent, born on April 20, 1999, is currently a fifteen (15) year old child. In early September of 2013, 1 Respondent was apprehended by DHS officials near Hidalgo, Texas. Respondent was fourteen (14) years of age on the date of his apprehension by DHS. At the time of his apprehension, Respondent spoke only his native language of Spanish. In the instant case, the NTA (Form I-862) and Record of Deportable/Inadmissible Alien (Form I-213) are each dated September 11, See Exhibits A and B, respectively. Respondent asserts that he was apprehended by DHS near the U.S./Mexico Border. Respondent asserts that immediately after his apprehension he was taken to a hielera a very cold holding cell. At this time, he was forced to remove most of his clothes, he was crying and afraid. See Exhibit C. A DHS officer asked him if he had any relatives in the United States. Respondent confirmed that he did and provided the name and telephone contact information for his father. See Exhibit C. The DHS officer then telephoned Mr., confirmed that Mr. was in fact Respondent s father and informed Mr. that Respondent had been apprehended by the DHS in Texas and that Respondent would be transferred to another detention center in Texas. 2 See Exhibit D. Respondent was then transferred to a second hielera. At this location, Respondent was questioned by DHS officials in a mixture of Spanish and English about his reasons for traveling to the United States. See Exhibit C. When Respondent stated that he traveled to the United 1 The Respondent is uncertain of the actual date of his apprehension by DHS authorities, the date is likely on or around September 10, 2013 or September 11, Form I-213 submitted by the Department in order to establish the alienage of Respondent confirms that the Department had Respondent s father, Mr. s telephone contact information and location on September 11, See Exhibit B.

164 States because he was fleeing gangs that had threatened him and his grandmother, he was laughed at by DHS officials and told that he needed a better reason than that and was repeatedly questioned about the real reason he came to the United States. See Exhibit C. The DHS officials questioning Respondent told him that he was required to sign papers that they put in front of him. See Exhibit C. Respondent explicitly asked whether he was required to sign the papers and the DHS officials informed him that he was required to sign the papers and that if he did not sign the papers, he would be kept in the hielera for a long time and he would be deported. See Exhibit C. The DHS officials did not read any of the papers to Respondent. See Exhibit C. The DHS officials did not give the papers to Respondent for him to read prior to signing. See Exhibit C. Respondent was not permitted to sit down or review any of the papers or documents before he signed. See Exhibit C. Respondent was forced to remain standing and the DHS officials pointed to every place on a variety of papers where he was supposed to sign. See Exhibit C. Respondent remembers signing his initials where the DHS officer pointed. The Certificate of Service on the NTA certifies that Respondent was personally served with the NTA and was given oral notice in Spanish of the time and place of his hearing and of the consequences of the failure to appear. See Exhibit A. The NTA does not indicate that service on a conservator or on Respondent s near relative was executed. See id. After Respondent signed the documents that DHS indicated were required, Respondent was provided with some juice and then transferred to a third hielera. The Department did not provide Respondent with a copy of any of the NTA or any other papers or documents he signed at this time. See Exhibit C.

165 On approximately September 13, 2013, Respondent was transferred to the custody of U.S. Department of Health & Human Services (HHS) Office of Refugee Resettlement (ORR) in Harlingen, Texas. On September 16, 2013, DHS filed the NTA was filed with the Harlingen, Texas Immigration Court. See Exhibit A. On September 25, 2013, Respondent was released to the custody of his father. Upon his release from ORR custody, ORR provided Respondent with a packet that included a copy of the NTA. Prior to September 25, 2013, Respondent had neither seen nor had in his possession this (or any other) document generated by the Department. See Exhibit C. III. Legal Discussion Respondent respectfully asserts that this Honorable Court s jurisdiction over 240 removal proceedings has not vested in the instant case and therefore removal proceedings must be terminated. See INA 239(a)(1); 8 CFR (a). A. Jurisdiction has not vested with this Honorable Court because the Department failed to serve Respondent with the NTA prior to filing the NTA with the U.S. Immigration Court. Under the plain language of the Immigration and Nationality Act, (INA or Act), the Department bears the burden of demonstrating by clear, unequivocal, and convincing evidence that it has provided written notice as required by Section 239(a)(1) of the Act. See INA 240(b)(5)(A). Section 239(a)(1) of the INA provides, in relevant part:

166 [i]n removal proceedings under Section 240, written notice (in this section referred to as a notice to appear ) shall be given in person to the alien (or, if personal service is not practicable, through service by mail to the alien or to the alien s counsel of record, if any). INA 239(a)(1) (emphasis supplied). Section (a) of Title 8 of the Code of Federal Regulations provides: jurisdiction vests and removal proceedings commence when a charging document is filed with the Immigration Court by the Service. The charging document must include a certificate of service on the opposing party pursuant to 8 CFR which indicates the Immigration Court in which the charging document is filed. 8 CFR (a) (emphasis supplied). Section of Title 8 of the CFR defines service as physically presenting or mailing the document to the appropriate party or parties. See 8 CFR (2014). 8 CFR (a) provides: except in in absentia hearings, a copy of all documents (including proposed exhibits or applications) filed with or presented to the Immigration Judge shall be simultaneously served by the presenting party on the opposing party or parties. Such service shall be in person or by first class mail to the most recent address contained in the Record of Proceeding. A certification showing service on the opposing party or parties on a date certain shall accompany any filing with the Immigration Judge unless service is made on the record during the hearing. Any documents or applications not containing such certification will not be considered by the Immigration Judge unless service is made on the record during a hearing. 8 CFR (a) (emphasis supplied). Furthermore, under the BIA has held that where the Immigration Judge is not satisfied that Service of the charging document was proper, termination of proceedings is the appropriate remedy. See Matter of Lopez-Barrios, 20 I&N Dec. 203, 204 (BIA 1990); see also Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002) (holding that where the legacy INS failed to establish by clear, unequivocal, and convincing evidence that written notice was properly provided to the Respondent, termination of proceedings was appropriate.). In the instant case, the Department failed to serve Respondent with the NTA at all. The NTA was not personally served on Respondent. The NTA was not mailed to Respondent. The

167 NTA was not served on Respondent s parents. Despite the Department s clear representation on the face of the NTA s Certificate of Service that it personally served Respondent with the NTA on September 11, 2013, DHS never served Respondent with the NTA. In light of the Department s failure to serve Respondent with the NTA, this Honorable Court does not have jurisdiction over Respondent. See 8 CFR As such, the instant proceedings must be terminated. B. Jurisdiction has not vested with this Honorable Court because the Department failed to serve Respondent s biological father with a copy of the NTA as required by 8 CFR 103.8(c)(2)(ii). In the unlikely event that this Honorable Court determines that the Department s complete and total omission of service of the NTA on the Respondent somehow satisfies both INA 239(a) and 8 CFR (a), Respondent alternatively asserts that the Department s failure to comply with 8 CFR 103.8(c)(2)(ii) also strips this Honorable Court of jurisdiction over the instant removal proceedings. Section 103.8(c)(2)(ii) of Title 8 of the CFR provides the mentally incompetent and minors with additional protections and safeguards regarding service of the NTA. Section 103.8(c)(2)(ii) dictates when personal service by DHS is required for minors and provides: Incompetents and minors. In case of mental incompetency, whether or not confined in an institution, and in the case of a minor under 14 years of age, service shall be made upon the person with whom the incompetent or the minor resides; whenever possible, service shall also be made on the near relative, guardian, committee, or friend. 8 CFR 103.8(c)(2)(ii) (emphasis supplied). By its plain language, section 103.8(c)(2)(ii) applies to all minors, and carves out an additional requirement for minors under 14 years of age. While the Regulations do not define the term

168 minor, the term juvenile is defined at 8 CFR 236.3(a) as an individual under the age of eighteen (18). Further, given that the Regulations use the terms juvenile and minor interchangeably, both juvenile and minor should be understood to mean an individual under 18 years of age. 3 Respondent acknowledges the BIA decision in Matter of Cubor-Cruz, which held that service on a near relative is not required under the regulations for minors between the ages of 14 and 18. See Matter of Cubor-Cruz, 25 I&N Dec. 470 (BIA 2011). However, Respondent respectfully asserts that the Board s decision in that case is not supported by the plain language of the regulations. Respondent highlights the Ninth Circuit Court of Appeals has held that Section 103.8(c)(2)(ii) s 4 requirement that the NTA be served on the parent or near relative is applicable to children between the ages of 14 and 18 years of age and is not limited to children under the age of 14. Flores-Chavez v. Ashcroft, 362 F.3d 1150 at 1163 (9th Cir. 2004). In rendering its decision, the Flores-Chavez Court noted that parental notification requirements, such as those established in 8 CFR 103.8(c)(2)(ii), implicate the due process rights of juveniles, as minors generally cannot appreciate or navigate the rules of or rights surrounding final proceedings that significantly impact their liberty interests. See Flores-Chavez, 362 F.3d at 1160 (citing In re Gault, 387 U.S. 1, 33-34, 18 L. Ed. 2d 527, 87 S. Ct (1967); United States v. Watts, For example, 8 CFR 215.5(b)(3)(i) provides, juveniles may be released to a relative not in Service detention who is willing to sponsor the minor and the minor may be released to that relative not withstanding that the juvenile has a relative who is in detention. See 8 CFR 212.5(b)(3)(i) (2014). 4 At that time the relevant regulation was published as 8 CFR 103.5a(c)(2)(ii). In 2011, 103.5a(c)(2)(ii) was removed and re-designated as 8 CFR 103.8(c)(2)(ii). See 76 Fed Reg (Aug. 29, 2011).

169 F.2d 5, 7-8 (10th Cir. 1975); Holloway v. Wainwright, 451 F.2d 149, 151 (5th Cir. 1971); Kemplen v. Maryland, 428 F.2d 169, 175 (4th Cir. 1970)). The Board of Immigration Appeals (Board or BIA) has also made clear that the purpose of Section 103.8(c)(2)(ii) is to serve the person or persons who are most likely to be responsible for ensuring that an alien appears before the immigration court at the scheduled time. Matter of Amaya, 21 I&N Dec. 583 (BIA 1996); see also Matter of Gomez-Gomez, 23 I&N Dec. 522 (BIA 2002). Matter of Mejia-Andino, 23 I&N Dec. 533, 536 (BIA 2002), the Board determined that because parents have ultimate responsibility in cases involving minor respondents, service upon the parents is required whenever possible if it appears that a minor child will be residing with his parents in this country, regardless of whether the minor resides with the adult at the time of service. Matter of Mejia-Andino, 23 I&N Dec. at 536 (citing Gonzalez v. Reno, 212 F.3d 1338, (11 th Cir. 2000). Section 103.8(c)(2)(ii) provides that for minors (i.e., individuals under the age of 18), wherever possible, service shall also be made on the near relative, guardian committee or friend. 8 CFR 103.8(c)(2)(ii) (emphasis supplied). Here, it was certainly possible for DHS to serve Respondent s father with the NTA. Indeed, both Respondent and Mr. have provided sworn affidavits confirming the fact that a DHS official contacted Mr. by telephone on the date of Respondent s apprehension by DHS authorities. Exhibits C-D. DHS s own Form I-213 further confirms the fact that the Department had the correct and accurate contact information for Mr. on the date the NTA was issued. See Exhibit B. With that information in its possession, DHS could have easily phoned Mr. to confirm his address in the United States in order to serve the NTA on Respondent s near relative as required under 8 CFR 103.8(c)(2)(ii). Given that it was possible for DHS to serve

170 Mr. with the NTA, by the plain language of the regulation, the Department was obligated to do so. See id. ( wherever possible, service shall also be made on the near relative, ) (emphasis supplied). The Department s failure to comply with 8 CFR 103.8(c)(2)(ii) and serve Respondent s father with the NTA prior to filing the NTA with the U.S. Immigration Court renders the service of the NTA defective as a whole. See Matter of Mejia-Andino, 23 I&N Dec. at 537. As such, removal proceedings have not vested with this Honorable Court and proceedings should be terminated. IV. Conclusion In light of the fact that the Department of Homeland Security failed to properly serve Respondent with the Notice to Appear as required by INA 239(a)(1). Under 8 CFR (a), jurisdiction with this Court this Honorable Court vests only with the filing of a NTA that meets the statutory requirements regarding service. Due to the Department s failure to properly serve the NTA on Respondent, jurisdiction has not vested with this Court and termination of proceedings is required. Additionally, DHS failure to adhere to 8 CFR 103.8(c)(2)(ii) which requires service of the NTA on a minor Respondent s near relative where possible also renders the Department s service of the NTA invalid, thus requiring termination of proceedings.

171 In light of the foregoing, Respondent respectfully requests this Honorable Court to terminate removal proceedings. Respectfully submitted, By: Jennifer Casey, Esq. Kolko & Associates, P.C. 303 East 17 th Avenue, Suite 585 Denver, CO Telephone: (303) Fax: (303) Dated: January 30, 2015

172

173 APPENDIX 6.A Sample Discovery Motion for Issuance of Subpoenas and Production of Documents 169

174 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT NEWARK, NJ ) In the Matter of: ) ) ) File No: A ) ) IJ Osuna ) In removal proceedings ) RESPONDENT S MOTION TO COMPEL DOCUMENT PRODUCTION OR IN THE ALTERNATIVE FOR A SUBPOENA Respondent,, by and through his attorney, respectfully moves that the Court compel document and evidentiary production from ICE counsel. Respondent also moves that the Court issue subpoenas or other appropriate relief to compel the government to produce documents and make witnesses available for questioning. [Consider asking for an order in limine that information that we make (1) in furtherance of obtaining document production, FOIA production, or other discovery production, or (2) in furtherance of a motion to terminate, not be made admissible to establish allegations in the Notice to Appear, including alleged alienage.] I. THE COURT MUST COMPEL DOCUMENT AND EVIDENDIARY PRODUCTION FROM ICE COUNSEL ADDITIONALLY, THE COURT MUST ISSUE SUBPOENAS AND OTHER RELIEF TO COMPEL THE GOVERNMENT TO PRODUCE DOCUMENTS Documents, evidence, and witnesses are critical for us to prepare our case. Access to evidence is critical to demonstrate that on or around October 19, 2009 (when the government arrested Mr. ), government officials violated their policies and procedures. Proving that 1

175 they violated their policies and procedures would require the Court to suppress evidence and terminate proceedings. The Court must compel the government to produce: 1. All exculpatory evidence regarding the arrest, interrogation and detention of Mr. 2. All documents, notes, forms, computer files, logs, videos, and recordings related to the arrest, interrogation and detention of Mr. 3. All documents related to the training, whether formal or informal, or on the job training for CBP agents regarding the rights of detained, unaccompanied minors under the immigration regulations. This is including, but not limited to, those involved in the apprehension of Mr. 4. All policies and regulations, including disciplinary rules for CBP agents regarding the rights of detained, unaccompanied minors under the immigration regulations. This is including, but not limited to, those involved in the apprehension of Mr. 5. A complete copy of any Department of Homeland Security or Department of Justice manual regarding the Law of Arrest, Search, and Seizure for Immigration Officers in effect as of. 6. All documents regarding the work performance of each individual involved in the apprehension and detention Mr. on or around, including disciplinary records or investigations. 7. All documents relating to the job duties and responsibilities of,, and any other person involved in the apprehension and detention of Mr. on or around. 8. All documents related to any complaints (formal and informal) regarding,, or any of the people involved in the apprehension and detention of Mr. on or around in the Tucson Sector Coordination Center. 9. Litigation records, FTCA, or Bivens claims against,, or any of the people involved in the apprehension and detention of Mr. on or around in the Tucson Sector Coordination Center. 10. A photograph of,, and all government employees who had contact with Mr. on or around in the Tucson Sector Coordination Center related to his apprehension and detention. To the extent possible, the photograph should reflect their physical appearance around. 11. Organizational charts and other lists that reflect the staff structure and management structure of CBP apprehensions and detentions in and around Tucson Sector Coordination Center on or around. 2

176 12. All documents relating to the transfer of Mr. to the Office of Refugee Resettlement Southwest Key Phoenix Shelter. The Court must compel the government to produce electronic information in a manner that preserves the meta-data about the information. The Court must also compel the government to produce information necessary to interpret entries in documents or computer files that they produce. For example, if some of the documents include cryptic codes, the government must produce an explanation or legend about what the code represents, including what other codes the author chose not to use for that entry. In addition, the government must submit sufficient information to support any claim of confidentiality or privilege for documents that they should be producing. The Court is required to order that the government produce documents. The Ninth Circuit has acknowledged the duty of an IJ to order document production from ICE in Dent v. Holder, 627 F.3d 365 (9th Cir. 2010). [If appropriate, explain that if Ninth Circuit decisions are not binding on this court, the legal analysis is persuasive and the Court should rule in the same way that the Ninth Circuit ruled.] Moreover, Congress has declared by statute that respondents shall have access to documents about entry to the United States along with any other records and documents, not considered by the Attorney General to be confidential, pertaining to the [respondent s] admission or presence in the United States. 8 U.S.C. 1229a(c)(2)(B); INA 239(c)(2)(B). This mandatory access law entitles us to obtain all records and documents not considered confidential relating to Mr. presence in the United States. As the Ninth Circuit held, at the very least this includes a court order compelling ICE to produce the A-file. In addition, the rationale of the Ninth Circuit also would require the Court to issue an order compelling production of other documents relating to Mr. presence in the United States. 3

177 Traditional methods of statutory analysis support the Ninth Circuit s legal conclusion that the statutes require an IJ to issue an order compelling ICE to produce documents. The Ninth Circuit invoked the doctrine of constitutional avoidance, which requires courts to interpret statutes in a manner that would avoid serious constitutional problems. The Ninth Circuit held that interpreting the statute in any manner that did not require an order compelling document production would raise serious constitutional problems. There would be serious due process problems in requiring a respondent to proceed with a case without being provided access to documents that could play a critical role in the case. In the Dent case, the Ninth Circuit concluded that immigration judges must issue orders compelling document production and cannot condition those orders on requiring a party to file a FOIA request. The court took judicial notice of the time required to obtain FOIA production and concluded that it would be unconstitutional to force respondents to file FOIA requests as the sole method to obtain documents. That would deny access until it would be too late to use it. Not only would that be unconstitutional, that interpretation of the statute would unreasonably impute to Congress and the agency a Kafkaesque sense of humor about aliens rights, as the Ninth Circuit said in Dent v. Holder. A district court decision further bolsters the need for the Court to compel document production rather than insist that a respondent obtain documents through FOIA requests. In Hajro v. USCIS, No PSG (N.D. Cal. Oct. 13, 2011), the district court concluded that USCIS violated a 1992 settlement agreement in which USCIS is required to produce documents through FOIA in a timely manner. In additiona, the district court ruled that USCIS also violated the 20-day requirement to respond to FOIA requests. 4

178 As an independent reason why the Court must issue an order compelling ICE to produce documents, due process requires the Court to issue such an order. The Supreme Court has already addressed the requirement under due process to compel the government to produce all exculpatory evidence. The Court here must issue such an order. The Supreme Court held that an essential component of due process is the right to the production of exculpatory evidence. Brady v. Maryland, 373 U.S. 83 (1963). In Brady, the Supreme Court focused on the requirements that applied based on the Fifth and Fourteenth Amendments of the United States Constitution. Under those due process requirements, criminal defendants must receive exculpatory evidence in the possession of the government. The fact that Brady involved a criminal case, as opposed to an immigration case, is a distinction without a difference. Respondents in removal proceedings, and particular Mr. in this removal proceeding, face grave consequences if they are deprived of due process. As further proof that the analysis in Brady applies to Mr. removal proceeding, it is well-established that due process and specifically the Fifth Amendment applies to removal proceedings such as this case. See, e.g., Bridges v. Wixon, 326 U.S. 135, 154 (1945). See also Wong Yang Sung v. McGrath, 339 U.S. 33, 50 (1949) (resident alien entitled to due process in fundamentally fair procedures in any attempt to deport him); Barraza-Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir. 1990) (same). In addition, INA 240(b)(4) provides an alien in removal proceedings the right to present evidence and witnesses on his behalf and to examine and crossexamine the evidence against him. For the reasons listed above, the Court must compel the government to produce documents. The Court must also issue subpoenas for the material and compel the production of 5

179 witnesses and other information through depositions, interrogatories, and witness testimony in court. Ordering depositions, interrogatories, and other discovery methods are required to provide Mr. an opportunity to examine and challenge the evidence that will be used against him and an opportunity to prepare and present evidence about what happened. Under 8 CFR (b)(3), the Court must issue a subpoena where we can explain what we expect the materials to show, why the materials are essential to the case, and that there is no other way to obtain the materials. First, we can explain what we expect the materials to show the materials will prove that the government violated its policies and procedures when officials detained Mr. by not giving specific warnings to detained minors and placing him in painfully cold rooms. We expect the materials to show that CBP had policies at the time that required officials to provide an I-770 form to minors such as Mr. that CBP was aware and should have been aware that Mr. was a minor, and that CBP did not provide an I-770 form to Mr. We also expect the materials to show that CBP had policies at the time that required officials to house Mr. in rooms that were not painfully cold, that policies required CBP to allow Mr. a reasonable opportunity to adjust the temperature, and that CBP was aware or should have been aware that it was violating its policies. Second, we can explain why these materials are essential to the case they will form the basis for terminating proceedings under Matter of Garcia-Flores, 17 I&N Dec. 325 (BIA 1980). They will also form the basis for suppressing evidence because of the coercive nature in which DHS obtained the materials and the severity of DHS s seizure of Mr. See Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006). Third, there is no other way to obtain the materials. Respondent through counsel has contacted ICE counsel to request that ICE voluntarily produce the material, has filed four 6

180 FOIA requests seeking expedited production, and is filing a motion for the Court to compel document production. To date, none of these efforts have provided us with access to the materials. Realistically speaking, there is no other way to obtain the materials. Another reason that the material is essential is because of the manner in which memory functions. Memory is not merely the rote recall of events that took place in the past. Under the misinformation effect, misleading information presented between the encoding of the event and later attempts to recall it may influence the person s memory. In addition, it is possible that the potential impact of the misinformation effect is stronger on younger people than adults. Mr. was particularly young when the government detained him. It is critical that Mr. is presented with reliable information about what happened to avoid or minimize any potential misinformation effect. It is essential that the government produce relevant materials and make witnesses available for depositions so that Mr. memory will not be influenced by the misinformation effect. In addition, the Court is required to compel the production of witnesses to provide the Respondent with the statutory right under INA 240(b)(4) to present witnesses on the Respondent s behalf. Dated: Newark, New Jersey [Add signature block, a certificate of service, and a proposed order] 7

181 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT NEWARK, NJ SUBPOENA In the Matter of: A Date: To: U.S. Department of Homeland Security Immigration and Customs Enforcement 614 Frelinghuysen Ave., 3rd Floor Newark, NJ You are hereby commanded to designate one or more officers, directors, or managing agents to appear on behalf of the agency before Immigration Judge Osuna at 970 Broad Street, Newark, NJ on at AM/PM to give testimony in connection with the removal proceedings being conducted under the authority of the Immigration and Nationality Act, relating to. You are further commanded to make the designated individuals available for depositions conducted by Mr. through his legal representatives and to answer their interrogatories. You are further commanded to instruct the agents appearing on behalf of the agency to bring with them the items on the following list. [INSERT here a list of items sought] 8

182 APPENDIX 6.B Sample FOIA Request 178

183

184

185

186 APPENDIX 6.C Sample Dent Request 182

187

188 APPENDIX 7 Compilation of Redacted Versions of Hold Rooms Memorandum 184

189 The U.S. Border Patrol Policy memo on Hold Rooms and Short Term Custody dated January 31, 2008 has several redacted portions that contain essential information. This directive established a national policy for the short-term custody of persons arrested or detained by Border Patrol Agents and detained in hold rooms at Border Patrol stations, checkpoints, processing facilities, and other facilities that are under the control of U.S. Customs and Border Protection (CBP). As a response to a FOIA request in mid-2010, CBP released a different version of this policy directive. This version has several redacted portions as well, but also includes information missing from the original released memo. Interestingly, the later version is missing a lot of information that was not previously redacted in the original memo. For purposes of this memo, the original released Policy Directive is referred to as Policy 1, and the Policy Directive we got in 2010 thanks to a FOIA request is referred to as Policy 2. The text in blue is interesting information unveiled in the 2010 production. Text in pink Redacted from both Policy 1 and Policy 2 Text in blue Redacted from Policy 2 only Text in yellow Redacted from Policy 1 only SUBJECT: DETENTION STANDARDS Reference Number: DATE: January 31, 2008 U.S. BORDER PATROL POLICY HOLD ROOMS AND SHORT TERM CUSTODY 1. PURPOSE. This directive establishes national policy for the short-term custody of persons arrested or detained by Border Patrol Agents and detained in hold rooms at Border Patrol stations, checkpoints, processing facilities, and other facilities that are under the control of U.S. Customs and Border Protection (CBP). 2. AUTHORITIES/REFERENCES. 2.1 Title 8, United States Code, Section Title 8, Code of Federal Regulations, Section Border Patrol Handbook 2.4 Officers Handbook (M-68) 2.5 The Law of Arrest, Search and Seizure for Immigration Officers (M-69) 2.6 Flores v. Reno, Stipulated Settlement Agreement, No. CV RJK (Px) (C.D. Cal. Jan. 17, 1997). Also, Flores. 2.7 Homeland Security Act of 2002, Section Interim Guidance Regarding Unaccompanied Juveniles in Custody Memorandum to All Chief Patrol Agents from David V. Aguilar, Chief, U.S. Border Patrol (September 2, 2005). 2.9 Immigration and Customs Enforcement guidelines on age determination.

190 3. DEFINITIONS. 3.1 Bedding Any combination of pillow, sheets, blanket, sleeping bag, or mattress 3.2 Custody The period of time in which a detainee under arrest or is detained in a Border Patrol hold room. 3.3 Hold Room An area such as a detention cell, a search room, or an interview room in which detained persons are temporarily held pending processing or transfer. 3.4 Open Area An area within a secure facility where the detainee is not in a locked room but where there are locked doors to prevent escape (e.g. a processing room). 3.5 Direct Supervision Detaining a person in a location where the employee assigned detention duties can constantly observe or hear the detainee. 3.6 Family Group and juveniles in custody at the same time and place. 3.7 Intermittent Supervision Detaining a person in a hold room where a detainee may be occasionally out of view and/or hearing of the employee assigned detention duties. 3.8 Juvenile A person under 18 years of age Persons under the age of 18 who have been emancipated by a state court or convicted and incarcerated for a criminal offense as an adult are NOT considered juveniles. Such individuals must be treated as adults for all purposes, including confinement and release on bond If a reasonable person would conclude that an individual claiming to be a juvenile is really an adult, that person will be treated as an adult for all purposes, including transportation, confinement, and release on bond or own recognizance. Age determination will be conducted, if necessary, in accordance with Immigration and Customs Enforcement guidelines on age determination An unaccompanied alien child (UAC) is defined in Section 462(g)(2) of the Homeland Security Act of 2002 as a child who: Has no lawful immigration status in the United States Has not attained 18 years of age; and With respect to whom 1. There is no parent or legal guardian in the United States; or 2. No parent or legal guardian in the United States is available to provide care and physical custody. 4. RESPONSIBILITIES.

191 4.1 The Chief, Office of Border Patrol, is responsible for policy oversight, which includes formulating and implementing guidelines and procedures. 4.2 Chief Patrol Agents (CPAs) are responsible for managing the implementation of this program at the sector level and monitoring compliance with the procedures to ensure uniformity of application, as well as for ensuring that all employees under their direction receive proper training concerning this policy and these procedures. 4.3 Patrol Agents in Charge (PAIC) are responsible for monitoring compliance at the station level. 4.4 Supervisory Border Patrol Agents are responsible for fulfilling all of their duties specified herein, and for ensuring the Border Patrol Agents under their direction are familiar with this policy and these procedures, and comply with them. 5. POLICY. 5.1 All persons arrested or detained by the Border Patrol will be held in facilities that are safe, secure, and clean. Detainees will be provided food, water, properly equipped restrooms and hygiene supplies as set forth in this directive. 5.2 Detainees will be promptly processed and turned over to U.S. Immigration and Customs Enforcement (ICE), Office of Detention and Removal Operations (DRO); the Office of Refugee Resettlement (ORR); the U.S. Marshals service; or any other agency (OA), as appropriate. 6. PROCEDURES. 6.1 Detention Cells Search Rooms and Hold Rooms Supervisors are responsible for designating areas as detention cells, search rooms, and/or hold rooms and ensuring that employees under their direction are familiar with such designations and intended uses. Dual designation of a particular room is authorized, i.e. a detention cell may also be used as a search room. 6.2 Duration of Detention Whenever possible, a detainee should not be held for more than 12 hours. Every effort will be made to promptly process, transfer, transport, remove, or release those in custody as appropriate and as operationally feasible.

192 6.2.2 The PAIC or the senior shift supervisor will be notified of all detentions at the station level that reach or exceed 24 hours, and they shall make every effort to promptly move the detainee(s) The Sector Staff Duty Officer must be notified when the detention period reaches or exceeds 72 hours, and the Staff Duty Officer or their designee shall make every effort to promptly move the detainee(s) When the detainee in an unaccompanied alien child (UAC), effort must be made to move them out of the Border Patrol facility and into ORR placement within 12 hours, however, there are times when placement by ORR may take longer than 12 hours. The PAIC must be notified immediately when a UAC s detention exceeds 24 hours; however, it is strongly encouraged that the PAIC be notified when the detention exceeds 12 hours. The PAIC or their designee will ensure that the ICE/DRO Field Office Juvenile Coordinator (FOJC) has been notified and ensure that the UAC is being held in accordance with this policy. The reason for the extended detention and the time and date that the PAIC and FOJC were notified will be documented in the Unaccompanied Alien Children Detention log and retained for a period of two years In accordance with Flores v. Reno Stipulated Settlement Agreement, UAC must be placed in an ORR-approved facility within 72 hours. In cases where the PAIC has reason to believe that the UAC s detention will exceed 72 hours or exceeds 72 hours, the PAIC or their designee will notify a sector staff officer immediately. This notification may occur well before the 72 hour time period is reached if information is provided at an earlier time that indicated the UAC placement won t be met under current conditions. The sector staff officer will contact the local ICE DRO Field Office Director for assistance and intervention Under extenuating circumstances, the maximum time allowed for placing UAC in an ORR-approved facility is five days. In cases where UAC are detained longer than dive days, sector staff will immediately contact the DRO liaison officer at the Office of Border Patrol via telephone and for further guidance and assistance, ensuring that all pertinent information and actions taken thus far are provided. Sector staff may contact the DRO liaison officer earlier when they deem appropriate or necessary. 6.3 Exceptions to Short-Term Detention in Border Patrol Hold Rooms

193 6.3.1 Agents will expedite processing of detained persons who are pregnant, are known to be on life-sustaining or life-saving medication, appear ill, constitute family groups, or are persons of advanced age or UACs If circumstances permit, persons who are pregnant, are known to be on life sustaining or life-saving medication, or appear ill should not be detained in a Border Patrol hold room. They should be seated in an open area under the direct supervision and control of an agent. The determination to place these detainees in a hold room should be made on a case-by-case basis. Some factors that need to be considered when making this decision are workload, layout of facilities, staffing, and emergency situations. Agents should also ask the detainee whether medical training is necessary. If the detainee replies in the affirmative or if medical treatment appears necessary, agents will contact the appropriate medical personnel and a supervisor All detention options should be considered when detaining family units, unaccompanied alien children, and persons of advanced age. If the circumstances permit, the processing agent should consider detaining these persons in an open area under direct supervision rather than in a hold room. The decision to place family units, UACs, and persons of advanced age in hold rooms will normally be made by the processing agent, but may be made or overridden by a supervisor. Factors to consider include criminal history, health, demeanor, etc In cases where family groups are encountered but only the parent or legal guardian is detained, circumstances will dictate whether family members should be separated from the juvenile who is not detained. In cases where the juvenile must be separated from the family member(s), immediate arrangements should be made to care for the juvenile until an adult family member arrives to take custody or, custody is turned over to the Office of Refugee Resettlement or a social services agency Direct supervision and control of detainees must be maintained at all facilities that do not have hold rooms. 6.4 Master Detention Log The ENFORCE apprehension log will serve as the master detention log. It will contain at a minimum the detainee s: a. Name b. Sex c. Age and date of birth d. Alien registration number e. Nationality

194 f. Reason detained g. Final disposition Any alien detained in custody for removal proceedings or voluntarily returned must be transferred via an I-216 created in ENFORCE. 6.5 Hold Room Monitoring Although video surveillance is an outstanding tool, it is not a replacement for physical checks. Holding cells must be physically checked regularly. Physical checks give processing agents better control of aliens in their hold rooms, provide a deterrent for misconduct, and provide detainees with an opportunity to communicate issues such as health or safety concerns to the processing agent Juveniles. Unaccompanied alien children require direct supervision. Physical checks are a critical aspect of monitoring UACs. Holding cells must be physically checked regularly and recorded in a log. Each station will be responsible for creating a hold room check sheet to verify the physical checks of juveniles Alien Booking Record (I-385). An Alien Booking Record (I-385) will be generated for each detainee that requires special handling (i.e., a detainee held for prosecution or removal of a detainee awaiting a voluntary return with a medical condition, or an unaccompanied juvenile). The Alien Booking Record will be posted near the entrance to the hold room or in a secure area. Any medical alerts (e.g., diabetic requiring injections) or significant remarks (e.g. high risk detainee or escape risk) will be annotated on the Alien Booking Record. The sheet will be maintained until the detainee is released from CBP custody. The fact that a detainee may have a medical alert or significant remark on his or her Alien Booking Record will be communicated during shirt change briefings and musters to all Border Patrol Agents assigned detention duties or to processing areas. The Alien Booking Record will be created in ENFORCE and contain the following detainee information: Name Alias Sex Date of birth Place of birth Country of citizenship Alien registration number Date apprehended

195 6.6.9 Responsible station or office Medical alert an annotation indicating that the person has a medical condition that requires medical care or prescribed medication, has a communicable disease, is suffering from depression, or appears to be suicidal Remarks for example, the person is an escape or flight risk, is a high risk detainee, is an asylum claimant, or is an accompanied or unaccompanied alien child. 6.7 Medical Issues: Detainees needing medical attention or showing signs of serious infectious disease or contagion (tuberculosis, severe acute respiratory syndrome, pandemic influenza, etc.) will be handled as set forth in this section: Such detainees will be evaluated by qualified personnel: a. An emergency medical technician (EMT) or a paramedic (Border Patrol or local); or b. A physician, physician s assistant, or nurse practitioner, Persons that are in custody and show symptoms of serious infectious disease should be isolated if possible. Masks should be made available for the detainee and agents should encourage their use. Agents will wear appropriate personal protective equipment while exposed to the person A supervisor will be notified as soon as possible of detainees needing medical attention Medications. Border Patrol Agents will not administer or inject any medication unless they are certified EMTs or paramedics practicing under the direction of a medical director and the administration of such medicine is within their scope of practice is authorized under the protocols of their medical practice. Medication prescribed in the United States, in a properly identified container, with the specific dosage indicated, may be self-administered under the supervision of a Border Patrol Agent. Administration of prescribed medication, medical assistance, or refusal of the same will be noted on the Alien Booking Record. Medications will not be left in the possession of the detainee. They will be secured separately, preferably with the detainee s property. 6.8 Meals. Detainees will be provided snacks and juice every four hours. Detainees whether in a hold room or not, will be provided a meal if detained

196 more than 8 hours or if their detention is anticipated to exceed 8 hours. Regardless of the time in custody, juveniles will be provided with meal service, and at least every six hours thereafter; two of three meals must be hot. Juveniles, small children, toddlers, babies, and pregnant women will have regular access to snacks, milk, or juice at all times. When an adult detainee requests a snack or meal before the next meal service, the processing agent may grant the request on the basis of the circumstances. Agents should be sensitive to the culinary, cultural, and religious dietary restrictions and/or differences of all detainees and should provide a mean that conforms to the dietary restrictions, if feasible. 6.9 Drinking Water. Portable drinking water will be available to detainees. The supervisor is responsible for ensuring that drinking water is available Restrooms. Restrooms will be available to detainees. Detainees using the restrooms will have access to toilet items; such as soap, toilet paper, and sanitary napkins. Families with small children will also have access to diapers and wipes Bedding. Detainees requiring bedding will be given clean bedding. Only one detainee will use this bedding between cleanings. This bedding will be changed very three days and cleaned before it is issued to another detainee. Vinyl or rubber-coated mattresses will be disinfected before being reissued Inspection of Personal Property. Purses, handbags, backpacks, and luggage will be inspected for weapons and contraband. They will be secured separately from the detainee until release or removal Control and Safeguarding of Detainees Personal Property. The control and safeguarding of detainees personal property will include the secure storage of funds, valuables, baggage, and other personal property. All property will be receipted on the appropriate Form I-77. All items belonging to the detainee will be properly receipted and placed in a secure area All property and legal papers that are in the juvenile s possession, or are served upon the juvenile during processing, shall accompany the juvenile upon transfer to any other agency or facility. Property of the juvenile that is the custody of the Border Patrol that exceeds the limit of the transporting agency shall be shipped to that facility in a timely manner Showers. Agents will make reasonable efforts to provide a shower for any detainee held for more than 72 hours. Detainees that are showing will be provided a clean towel and basic toiletries. Agents will make every reasonable effort to provide unaccompanied alien children who are held more than 48 hours with access to a shower and clean towel, clean clothing, and basic

197 hygiene articles as soon as practicable. These items may be provided to UACs sooner, depending on availability and condition of the juvenile Inspection. Detention cells will be routinely inspected for evidence of tampering Cleaning and Sanitization. Supervisors will ensure that detention cells are regularly cleaned and sanitized. Employees will not be expected nor required to perform such tasks Smoking. Smoking is prohibited in hold rooms Evacuation. Every station will have an evacuation plan and will post it in the processing area. The PAIC is responsible for ensuring that agents are familiar with procedures in the evacuation plan Search Procedures. All detainees that are under arrest will be thoroughly searched before being placed in a Border Patrol hold room. Detainees may not be strip searched unless there is a reasonable suspicion that a strip search of a particular detainee will yield weapons or contraband Restraint Procedures. This should be annotated on Alien Booking Record. Any detainee restrained in a holding room requires direct supervision 6.21 Telephones. Persons detained more than 24 hours will be given access to a telephone for the purposes of contacting an attorney or other party as stated on the I-826 Notice of Rights and Request for Disposition and will be given access at a minimum of once per day until they are no longer in Border Patrol custody. Detainees who wish to make other than a local card must use a calling card or collect call. Processing agents may, at their discretion, grant telephone access to any alien. Unaccompanied alien children will be given access to telephone as soon as practicable to aid in locating family members Segregation. Unaccompanied children must be separated from unrelated adults and must not be detained with unrelated adults in the same holding room 6.23 Privacy. Border Patrol hold rooms should have privacy screens in toilet areas whenever possible. Agents should make a reasonable effort to afford aliens of the opposite sex privacy and notice before viewing or entering a hold room without a privacy screen Juveniles. The following is a summary of guidelines from the Flores v. Reno Settlement Agreement, and the Homeland Security Act of The terms of the Settlement are binding and must be adhered to.

198 Access to Legal Counsel and Consular Officials. All UACs shall be advised of their rights as per Form I-770 Notice of Rights and Request for Disposition, which includes their right to make a telephone call to any persons mentioned in the notice. If the juvenile is under 14 or is unable to understand the form, the I-770 must be read and explained in a language that the juvenile understands. The UAC s consular official must be notified as soon as possible, and notification of the UAC s family must be in accordance with Form I-770. All UAC processed for removal must be given a list of free legal service providers. Each CPA, or designee, will ensure that the lists of free legal services providers are current, accurate, and provided to juvenile detainees. Free legal service providers must represent juveniles in removal proceedings. Updated lists will be distributed regularly to all Border Patrol stations Authority of the Office of Refugee Resettlement. ORR has assumed authority for decisions related to the care and placement of UACs detained in federal custody. The current procedure requites stations to immediately contact an ICE/DRO Field Officer Juvenile Coordinator (FOJC) to coordinate UAC placement in an ORR facility Procedures for Processing Juveniles. All juveniles will be processed expeditiously As soon as practicable after determining that a detainee is a UAC and will require detention, the processing agent should contact an ICE/DRO FOJC to obtain pre-authorization to place the unaccompanied alien child with ORR. The agent must obtain preauthorization from the FOJC regardless of a UAC s anticipated time in detention and must provide the following information: the juvenile s name, any aliases, alien registration number, country of citizenship, sex, date of birth, age, date of entry, place of entry, manner of entry, date of custody, custody location, and indication regarding whether or not the juvenile is a criminal or non-criminal. The FOJC must have this information to secure placement for the UAC with ORR. The FOJC will contact the local ORR representative who will locate an appropriate placement and notify FOJC when that is completed. The FOJC will coordinate the placement transfer Separation of Juveniles from Unrelated Adults. Juveniles must be separated from unrelated adults whenever practicable and must not be detained when unrelated adults in the same holding room Transportation of Juveniles. Unaccompanied alien children arrested or taken into custody should not be transported in vehicles with detained adults when separate transportation is practical and available. When separate transportation is impractical all necessary precautions should be taken for the juveniles protection and well-being.

199 Requirements of Juvenile Hold Rooms. Juveniles detained longer than 24 hours will be given access to basic hygiene articles, a blanket, and a mattress (a pillow is optional), etc. If showers are available, the juveniles will be permitted to take one shower every 48 hours and be provided with a clean towel. Agents and supervisors may give these items and privileges to any juvenile at any time based on the availability and the condition of the juvenile All hold rooms used for unaccompanied alien children must provide access to the following: a. Toilets and sinks b. Drinking water c. Adequate temperature control and ventilation d. Clean blankets and mattresses e. Meals, which must be offered every six hours (two of three meals must be hot) f. Emergency medical assistance g. Direct supervision Unaccompanied Alien Children Detention Log. Each Border Patrol station must maintain a separate detention log (examples attached) for all juveniles placed in custody. The log will be kept on file at the station for two years. The log will contain, at minimum, the following information about each juvenile: a. Name b. Sex c. Age d. Alien registration number e. Nationality f. Reason for placement g. Date and time in h. Date and time FOJC was notified i. Date and time out (transferred or released) j. Final disposition k. Comments l. Times that meals were provided Meals. Juveniles must receive the next meal served, regardless of the time in custody and must have regular access to snacks, milk, juice, etc. Meals must be offered every six hours (two of three meals must be hot).

200 Transfers. Each station must complete an I-216 in ENFORCE for all UACs transferred to ORR or DRO custody. A hard copy of the I-216 will be kept on file at the station for two years for the purpose of auditing and oversight Training Requirements. The Border Patrol Academy will include training on the conditions of Flores v. Reno Settlement Agreement as a part of Border Patrol basic training. All CPA s, PAIC s and Border Patrol Agents will take at least one hour per year of refresher training on Flores and associated Border Patrol policy. Pertinent training updates will be well-posted in Border Patrol station processing areas to ensure awareness and adherence Family Groups (with Juveniles). The following are examples of family groups as defined in section 4.6 of this directive. The following groups will be detained as a unit. a. b. c. d. e Documentation. Times of meals, showers, telephone use, and visual checks of juveniles are held in custody will all be recorded. 7. PERFORMANCE MEASUREMENTS. All detainees will be held under safe and humane conditions. Unaccompanied alien children in Border Patrol custody will be treated with dignity, respect and special concern for their particular vulnerability as minors. 7.1 Performance Measurement 1: All detainees will be held in appropriate conditions of confinement that ensure their safety and security. Juveniles will be held in the least restrictive setting appropriate for their age and special needs as minors Detainees are segregated according to sex, age, risk, family group Detention space capacity will not be exceeded Hold rooms will be kept clean and free of contraband and other potentially hazardous or dangerous materials. 7.2 Performance Measurement 2: All detainees will be held under humane conditions of confinement that provide for their well-being and general good health.

201 7.2.1 Detainees have access to sanitary facilities and restrooms, Detainees are provided food and water Detainees have access to appropriate medical services, prescriptions, medications, and emergency medical treatment Detention spaces are approximately maintained and provide detainees with appropriate comfort items housekeeping and clean bedding. 7.3 Performance Measurement 3: The time of detention for detainees is minimized The period of detention does not exceed 24 hours, and commonly does not exceed 24 hours for UACs. 7.4 Performance Monitoring Tools: a. Sector and/or Station Detention Logs b. Form I-216 Record of Persons and Property Transferred c. Supervisor oversight d. Local inspection programs e. Reporting of deficiencies f. Periodic compliance summary reports 8. CANCELLATION. This policy remains in effect until cancellation by any updated version. 9. NO PRIVATE RIGHTS CREATED. This document is an internal policy statement of U.S. Customs and Border Protection and does not create or confer any rights, privileges, or benefits on any person or party. 10. ATTACHMENTS. Appendix 1: Unaccompanied Alien Children Detention log... David V. Aguilar Chief U.S. Border Patrol

202 APPENDIX 8.A Redacted I-213 (Interior Enforcement) 198

203

204

205 APPENDIX 8.B Redacted I-213 (Border Enforcement) 201

206

207

208

209 APPENDIX 9 Sample BIA Brief Regarding Alienage 205

210 KRISTEN JACKSON (Bar No ) PUBLIC COUNSEL 610 South Ardmore Avenue Los Angeles, CA Telephone (213) , ext. 157 Facsimile (213) Attorneys for Respondent John Doe UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS In the Matter of: ) ) ) File No. A ) John Doe, ) ) ) In Removal Proceedings ) ) RESPONDENT S RESPONSE BRIEF

211 Respondent John Doe, through pro bono counsel Kristen Jackson, files this Response Brief requesting that the Board affirm the Immigration Judge s August 10, 2009 decision terminating proceedings for DHS s failure to establish John s alienage. Procedural History On September 30, 2004, DHS created a Notice to Appear charging 14-year-old John as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act. The NTA alleged, among other things, that John is a native and citizen of Mexico and that he entered the United States on or about June 1, This NTA was filed with the Immigration Court in San Francisco while John was in federal custody. See Exh. 1. When John was released from federal custody to his elderly father, his pro bono attorney Jane Roe filed a Motion to Change Venue to Los Angeles. John See Motion for Change of Venue and Withdraw as Attorney of Record at 1-2 (dated Dec. 10, 2004). This Motion was granted. See Exh. 3. On February 4, 2005, John appeared in the Los Angeles Immigration Court with Ms. Jackson. Tr. at 3. He was given a one-week continuance to review the NTA he was given. Tr. at 7:25-8:9. On February 10, 2005, John returned to Immigration Court. Tr. at 10. Through counsel, he: (1) declined to admit the factual allegations and concede removability; (2) asserted that he was putting DHS to its burden of proving his alienage; and (3) stated that he needed time to obtain essential documents from DHS. Tr. at 11:5-12:20. Over objection, Immigration Judge Ho set a Merits Hearing for May 12, Tr. at 13: The Merits Hearing did not go forward, however, because Kern County and then DHS took John back into custody. John s removal proceedings were returned to San Francisco in mid See Exh. 6. By mid-october 2005, John had been re-released to his father, and Ms. Jackson requested that Ms. Roe submit a Motion to Change Venue back to Los Angeles. Exh

212 10-B (Declaration of Kristen Jackson 3). Ms. Roe did so. See Exh. 7. This Motion to Change Venue, like the preceding one, was granted. See Order (dated Nov. 10, 2005). On October 25, 2007 after a series of delays in 2006 and 2007 related to John s inability to appear and Immigration Judge Einhorn s retirement John and Ms. Jackson appeared before visiting Immigration Judge Weiss in Los Angeles. Tr. at 27. Ms. Jackson explained that John was putting DHS to its burden to establish alienage. Tr. at 28:17-29:11. Judge Weiss asked DHS what evidence it had to sustain the charge, and DHS counsel stated: [I]f this is simply a question of alienage, we ll just have to call the call witnesses. I don t see anything in the file that shows it but a date to call witnesses shouldn t be a problem. Tr. at 31:9-17. Judge Weiss set the case over for a Master Calendar Hearing in July 2008 to allow time for DHS to produce the evidence DHS intended to use to establish John s alienage. Tr. at 31:23-32:19. On July 1, 2008, John appeared before Immigration Judge Rodriguez de Jongh. Tr. at 33. John declined to answer the Immigration Judge s questions regarding alienage on Fifth Amendment grounds, and Ms. Jackson explained that he was putting DHS to its burden of establishing alienage. Tr. at 34:1-25. DHS filed a one-page I-213 dated July 11, 2005 as its only evidence of John s alienage. See Exh. 8. DHS counsel stated that he did not have a witness list but I imagine the officer might be one of the witnesses. Tr. at 36:19-37:1. In response to the Court s question whether the I-213 was all [DHS] ha[s] in terms of documentary evidence, DHS answered yes. Tr. at 37:6-9. The Court set a Merits Hearing solely on the issue of alienage for September 25, 2008, and stated: I expect both parties to be ready to proceed on something that day. Tr. at 37: The Court set a corresponding deadline of September 10, 2008 to submit additional materials, but urged the parties to get [materials] to me as early as you can

213 Tr. at 37:23-38:4. Ms. Jackson did so by submitting a pre-hearing brief and objections to Exhibit 8. See Exhs. 9-A, 9-B. DHS did not. On September 25, 2008, John again appeared before the Court. Tr. at 40. At the start of the proceedings, the Immigration Judge admonished DHS that I explained to the government that they needed to produce something else [in addition to Exhibit 8]. I was expecting to see the officer who issued the I-213. Tr. at 42:9-12. She stated: I specifically said that, if I don t have the officer, I m terminating these proceedings. Tr. at 43:7-12. In light of new DHS arguments regarding alienage, the Court set the case over for another hearing. Tr. at 44:14-46:22. DHS counsel also stated: If we re having a brief continuance, we ll arrange to get the officer present, however, it appears from my records that the officer may be located in San Francisco area and, therefore, we request that he be allowed to testify telephonically. Tr. at 50:9-15. The Court set the case over to February 10, 2009 for the Merits Hearing regarding alienage. Tr. at 55: The corresponding deadline to submit additional materials was January 26, See Immigration Court Practice Manual 3.1(b)(ii)(A) (requiring all filings of this nature to be submitted at least 15 days in advance of the hearing). Ms. Jackson submitted additional materials, including a supplemental pre-hearing brief and supporting declarations. See Exhs. 10- A, 10-B. DHS did not. On February 10, 2009, John again appeared before the Court for his Merits Hearing solely on the issue of alienage. Tr. at 58. DHS in contravention of the Immigration Court Practice Manual 3.1(b)(ii)(A) (requiring all filings of this nature to be submitted at least 15 days in advance of the hearing) submitted a one-page I-213 dated September 3, 2004 as evidence of John s alienage. See Exh. 11; Tr. at 68: It obtained a continuance to allow the assigned DHS counsel to be present. Tr. at 67:23-68:22. The Immigration Judge set the case over to

214 August 10, 2009 for the Merits Hearing regarding alienage. Tr. at 74: She set a corresponding deadline of 30 days before the hearing to submit additional materials, including a witness list if DHS was going to present the officer who created the I-213s. Tr. at 75:4-20, 79: Ms. Jackson filed supplemental materials, including a witness list, a motion for telephonic testimony, objections to Exhibit 11, and a second supplemental pre-hearing brief. See Exhs. 12- A, 12-B, 12-C, 12-D. DHS did not. On August 10, 2009, John appeared before the Court for his final removal hearing. Tr. at 82. While marking exhibits, the Immigration Judge asked if DHS had available the officer who prepared Exhibit 11, and DHS counsel said no. Tr. at 97:9-18. DHS counsel argued that on the record before the Court, alienage has been proven by clear and convincing evidence. Tr. at 99:22-100:7. Ms. Jackson presented the arguments outlined in the pre-hearing briefs. Tr. at 100:12-101:13. The Immigration Judge noted, although DHS disagreed, that John could exercise his Fifth Amendment privilege not to answer incriminating questions in his removal proceedings and mentioned the Ninth Circuit case of Lopez-Chavez. v. INS, 259 F.3d 1176 (9th Cir. 2001). Tr. at 103:12-104:1. In response to DHS concerns that attacks on the I-213s must be supported by testimonial, not merely written, statements, Ms. Jackson put John on the stand to testify as to the circumstances regarding the creation of the I-213s as well as the characteristics that make them unreliable. Tr. at 113:16-114:8. He testified consistent with his declaration as to Exhibit 11 that: (1) he did not provide DHS with the information on the form on or before September 3, 2004; (2) the information on the form did not come from him and he does not know where the information came from; (3) the date of entry and his mother s name are incorrect; and (4) he was not advised of communication privileges on September 3, Tr. at 115:19-117:9. He testified consistent

215 with his declaration as to Exhibit 8 that: (1) he did not provide DHS with the information on the form on September 14, 2004 or July 11, 2005; (2) the information on the form did not come from him and he does not know where the information came from; (3) the date of entry, his mother s name, and his age are incorrect; and (4) he was not advised of communication privileges on July 11, Tr. at 117:10-120:14. At the beginning of cross-examination, Ms. Jackson clarified that she could invoke the Fifth Amendment on John s behalf. Tr. at 121:8-122:7. On cross-examination, John testified that he was first in DHS custody in late September 2004 perhaps the 28th or the 30th. Tr. at 124:4-15. In an attempt to impeach John, DHS counsel submitted a fingerprint card. Tr. at 125:12-127:6. She was not, however, able to undermine his testimony. Tr. at 127:7-129:1. John testified more specifically that his mother s last name is Camacho, not Doe, and that her first name was misspelled. Tr. at 129:17-130:10. Ms. Jackson asserted John s Fifth Amendment privilege during the cross-examination. Tr. at 130:9-19. At the end of John s testimony, DHS counsel asked for a continuance to have the deportation officer testify telephonically. Tr. at 132:3-6. The Immigration Judge responded: If you want the officer to testify, you have to bring him. I don t... the Government has had four years to establish alienage in this case and I m going to terminate proceedings. The Government can refile if it s got some better evidence here. Tr. at 132:7-11. At the end of the hearing, the Immigration Judge stated: I m terminating these proceedings and I m terminating these proceedings strictly on the law. I want everyone to understand. Tr. at 132: She stated that the documents DHS had submitted were not enough to establish alienage. Tr. at 132:23-133:3. She cited the case of Lopez-Chavez v. INS, 259 F.3d 1176 (9th Cir. 2001) for the proposition that DHS must prove alienage by clear, convincing,

216 and unequivocal evidence. Tr. at 136: She also cited United States v. De Leon-Ortiz, 274 Fed. Appx. 577 (9th Cir. April 21, 2008) for the proposition that the burden to prove alienage is a jurisdictional, rather than a simple evidentiary, issue. Tr. at 136:21-137:4. She terminated the proceedings without prejudice to give DHS an opportunity to re-file, and both parties reserved appeal. Tr. at 132:10-11, 137:5-8. DHS filed its appeal on September 8, In its brief before the Board, DHS argues that the Immigration Judge erred in finding that DHS did not establish John s alienage because DHS submitted clear and convincing evidence and John did not rebut the evidence. DHS brief at 3. Further, it claims that the Immigration Judge erred by allowing John to assert his Fifth Amendment privilege in removal proceedings. DHS brief at 5. 1 Statement of the Issue Presented for Review Whether the Immigration Judge properly found that DHS failed to establish John s alienage, as it must, by clear, unequivocal, and convincing evidence at a hearing in which she properly handled the burden of proof and honored John s Fifth Amendment privilege against self-incrimination. Standard of Review The Board may review de novo all questions of law, discretion, and judgment, including the question whether the parties have met the relevant burden of proof. Matter of Martinez- Serrano, 25 I&N Dec. 151, 152 (BIA 2009); 8 C.F.R (d)(3)(ii). 1 DHS originally took the position that statements in Ms. Roe s Motions to Change Venue and Withdraw as Attorney of Record established John s alienage. Tr. at 44: The Immigration Judge rejected this argument. Tr. at 104:4-113:15. Because DHS does not raise this as error in its Notice of Appeal or its brief, we do not address it here. The full arguments regarding Ms. Roe s statements are found in Exhibits 10-A, 10-B, and 12-D

217 Summary of the Argument As a general rule, properly authenticated I-213s can establish alienage. See Lopez- Chavez, 259 F.3d at That I-213s generally can establish alienage, however, does not mean that every I-213, no matter how defective, can serve that purpose. See Murphy v. INS, 54 F.3d 605, (9th Cir. 1995); Matter of Mejia-Andino, 23 I&N Dec. 533, 538 (BIA 2002) (concurrence). John established through evidence and legal argument that the I-213s here (Exhibits 8 and 11) failed that test that is, he rebutted the I-213s and thus the Immigration Judge lacked jurisdiction over his case. See Murphy, 54 F.3d at 609. In the process, the Immigration Judge properly protected John s Fifth Amendment rights. Argument I. This Case Involves Considerations and Principles of Special Care Because It Involves the Alienage of a Juvenile. It is important for the Board to note that DHS first apprehended John when he was merely 14 years old. Although John is now 20, DHS created its I-213s (Exhibits 8 and 11) and prosecuted most of his removal proceedings when he was a child. Thus the analysis of his alienage must be conducted through the lens of the considerations and principles of special care accorded to juveniles. See Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002); see also Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045 (9th Cir. 2007) (requiring the BIA to evaluate harm through the eyes of seven- and nine-year-olds, the ages of the 22- and 24-year-old respondents when key events occurred). Using this lens requires acknowledging that immigration officers working with juveniles have heightened duties of investigation and reporting, as outlined below, and thus should be held to a higher standard in creating I-213s for juveniles. An Immigration Judge s exercising special care also means conducting a comprehensive and independent inquiry into evidence allegedly

218 proving a juvenile s alienage, as the Immigration Judge did here. See Matter of Amaya-Castro, 21 I&N Dec. 583, (BIA 1996) (noting that an Immigration Judge must exercise particular care in determining [a child s] deportability ). Finally, it means keeping in mind the challenges all children face in interacting with immigration authorities issues of age, development, experience and self-determination as well as those particular to unaccompanied and unrepresented children, as John was at times important to his case. See Michael J. Creppy, Chief Immigration Judge, U.S. Dep t of Justice, Executive Office for Immigration Review, Guidelines for Immigration Court Cases Involving Unaccompanied Alien Children, at 2 (Sept. 16, 2004). In this case, the Immigration Judge was particularly sensitive to these issues with a young respondent while basing her decision entirely on governing case law. See, e.g., Tr. at 53:9-55:9, 132: II. The Immigration Judge Correctly Handled the Burdens of Proof and Properly Determined That DHS Did Not Meet Its Burden to Establish John s Alienage. The Immigration Judge terminated these proceedings because of DHS s failure to establish John s alienage. IJ at 1; Tr. at 132:7-133:6. This was entirely proper. The evidence DHS submitted did not establish John s alienage by clear, unequivocal and convincing evidence. See Hernandez-Guadarrama v. Ashcroft, 394 F.3d 674, 679 (9th Cir. 2005) (citing Woodby v. INS, 385 U.S. 276, 286 (1966)). 2 DHS now disputes the manner in which the Immigration Judge conducted the final hearing. DHS brief at 4-5. Essentially, it complains that she failed to shift the burden to John and she protected John s Fifth Amendment rights. Id. DHS is wrong. John did meet his burden to discount the I-213s. The Immigration Judge conducted the 2 Language in some BIA and Ninth Circuit opinions suggests that the evidence need only be clear and convincing but not unequivocal. Whichever standard is used, unequivocal or not, the result is the same: The Immigration Judge correctly found that DHS did not meet its burden of proving John s alienage

219 hearing correctly and found, rightly, that Exhibits 8 and 11 did not pass muster. The arguments presented to her, and upon which she relied, are outlined below. Tr. 132:23-133:3. A. DHS s I-213s, Exhibits 8 and 11, Are Fatally Flawed. 1. The Information in Exhibits 8 and 11 Did Not Come from John. I-213s are presumed inherently trustworthy and capable of establishing alienage in significant part because they are essentially a recorded recollection of a [DHS agent s] conversation with the alien. Espinoza v. INS, 45 F.3d 308, 308 n.1 (9th Cir. 1995) (citation omitted). Indeed, I-213s are typically regarded as records of the subject s own statements that is, created from information out of the alien s mouth. Id. at 310. Source, then, is highly relevant to an I-213 s reliability. The Ninth Circuit, in finding I- 213s admissible to prove alienage, has repeatedly relied heavily upon the fact that the undisputed source of the particular I-213 s information was the respondent himself. See, e.g., Lopez-Chavez, 259 F.3d at 1181 (upholding alienage where there was no evidence that the information on the form was obtained... from anyone other than Lopez-Chavez himself ); Fernandez-Perez v. Gonzales, 226 Fed. Appx. 737, 738 (9th Cir. 2007) (unpublished) (holding that an I-213 established alienage where the respondent has not alleged that the statements [on the I-213] were not her own ). More importantly, in cases where an I-213 s source is disputed or is found not to be the respondent himself, the Ninth Circuit has found that that I-213 alone cannot meet the government s burden. See Hernandez-Guadarrama, 394 F.3d at (giving an I-213 no weight where its source was not the respondent); Murphy, 54 F.3d at (concluding that an I-213 merited little if any weight when the source of the information was in doubt). The BIA has repeatedly concluded the same. See Matter of Ponce-Hernandez, 22 I&N Dec. 784, 785 (BIA 1999) (upholding an in absentia removal order where there was nothing to

220 indicate that [the I-213 s information] came from anyone other than the respondent ); Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988) (upholding a deportation order where the I-213 reflects that [the officer] completed the form based upon admissions made by the respondent ). Under these precedents, Exhibits 8 and 11 are clearly unreliable. John disputed the source of Exhibits 8 and 11 s information. He denied that he supplied this information to ICE himself at times relevant to the documents creations. See Exh. 9-B (Declaration of John Doe 5, 7); Exh. 12-B (Second Supplemental Declaration of John Doe 5, 7); Tr. at 115:19-120:4. He did not know who did supply the information, or when or how it was supplied. Id. Although it is possible that some of the information came from juvenile court records or the Kern County Probation Department, both referenced on Exhibit 8 s face, that is not clear. Exh. 9-B 2; Exh. 12-B 2. Like the government in Hernandez-Guadarrama and Murphy, DHS here cannot use these ambiguously sourced I-213s to prove John s alienage. DHS contends that John s testimony regarding Exhibits 8 and 11 is self-serving and thus implies it must be viewed with suspicion. But the question is not whether his testimony is favorable to him, but whether it was credible. See Matter of S- M- J-, 21 I&N Dec. 722, 741 (BIA 1997) ( It is critical to understand the anomaly created by the concept of self-serving documentation. The fact that such evidence may advance an applicant s cause does not mean it is not admissible or entitled to due weight. ) And credible it was. John testified in person under the scrutiny of the Immigration Judge. DHS cross-examined him and he answered all questions aside from those that he was not obligated to answer under the Fifth Amendment fully. He survived DHS attempts to impeach him. Unsurprisingly, the Immigration Judge made no adverse credibility finding and thus regarded John s statements that he was not the source of Exhibits 8 and 11 s information as true

221 2. Material Information on Exhibits 8 and 11 Is Incorrect. Obviously, when DHS is using an I-213 to sustain its burden, it is of the utmost importance that the document itself contain correct information. Both the Ninth Circuit and the BIA have acknowledged that errors on an I-213 undermine the document s evidentiary value. In upholding the use of I-213s in numerous cases, they have noted that the result would be different if the I-213s contained errors. See Espinoza, 45 F.3d at 310 (concluding that an I-213 alone would not be clear and convincing evidence of alienage when a respondent produced evidence contradicting material information on the I-213 itself); Fernandez-Perez, 226 Fed. Appx. at 738 (upholding the admission of the I-213 where [p]etitioner has not presented any evidence contradicting the challenged [I-213] ); Gomez-Gomez, 23 I&N Dec. at 524 (observing that an I- 213 is deemed inherently trustworthy and admissible to prove alienage only absent any evidence that [it] contains information that is inaccurate ); Ponce-Hernandez, 22 I&N Dec. at 785 (same). This is hardly surprising. Incorrect information on an I-213, taken as true, could lead to disastrous results. A U.S.-born citizen whose I-213 shows him as born in Honduras may receive a removal order on the basis of this inaccurate information. A person who entered the U.S. years before the I-213 states he did may be presumed not to qualify for important forms of relief, including cancellation of removal. Incorrect information on children s I-213s is of particular concern, given a child s more limited ability to understand[] whether the factual allegations made against him are accurate, as well as the challenges of his age and pro se and unaccompanied status. Amaya-Castro, 21 I&N Dec. at & n.4 (holding that a 13-year-old child s factual admissions in court, after comprehensive inquiry, could establish his alienage but

222 the I-213 itself could not serve that purpose). Problems with accuracy can arise from an officer s own misapprehensions or from the child s faulty or clouded memory. Here, John disputed the accuracy of Exhibits 8 and 11 in that they, at the very least, contain an incorrect date of entry. Exh. 9-B 8; Exh. 12-B 8; Tr. at 116:24-117:1, 120:5-7. He also established that they contain an incorrect name for his mother. Exh. 9-B 8; Exh. 12-B 8; Tr. at 116:24-117:1, 120: Further, he established that he was not 14 years old on July 11, 2005 as Exhibit 8 reflects. Exh. 9-B John s declarations and his credible testimony on direct and cross-examination are evidence of these errors. See Espinoza, 45 F.3d at 310 (concluding that evidence of inaccuracy is needed, as opposed to mere suspicion). DHS now complains that John presented no other evidence of the errors he alleges on Exhibits 8 and 11. DHS brief at 5. Yet it cites no case law to suggest that more was required. Indeed, it was not. John s declarations and credible testimony are enough to meet his burden to discount the reliability of Exhibits 8 and 11, as no Ninth Circuit or BIA case has required extensive or detailed evidence to establish the inaccuracy of an I-213. The defects in these Exhibits are clear, and the Immigration Judge properly found they did not establish John s alienage. 3. Exhibits 8 and 11 Lack Detail. In a case such as this, detail is key to an I-213 s ability to sustain DHS s burden. The BIA was careful to state in its most recent precedent decision addressing I-213s in depth: We emphasize that while generally considered to be reliable and sufficient to establish alienage, not every Form I-213 that alleges alienage must be ultimately so found. The Service would be well advised to include as many indicia of trustworthiness regarding the information in that document as are practicable, such as the source of the information and the circumstances of the alien s apprehension, as was done here. Gomez-Gomez, 23 I&N Dec. at 526. This was not new: the BIA s prior decisions did not go so far as to hold that any allegation of alienage in a Form I-213, however conclusory, is sufficient to

223 meet the Service s burden of proof. Id. at 526 n.5. In a notable case in which an I-213 was used to establish a juvenile s alienage in in absentia proceedings, the BIA was careful to note that it was the detailed information in that particular form, combined with absolutely no challenge to the use of the form itself, that sustained the government s burden. See id. (citing Ponce- Hernandez, 22 I&N Dec. at ); see also Mejia-Andino, 23 I&N Dec. at 538 (concurrence) (recognizing that Ponce-Hernandez relied heavily on the detailed information attributed to the juvenile). In an apparent acknowledgement of the need for details to sustain its burden in children s cases, DHS requires its officers to include in-depth information on juveniles I-213s. The Juvenile Protocol Manual created by the Office of Detention and Removal makes clear that officers should obtain as much detailed biographical information as possible. U.S. Dep t of Homeland Security, Detention and Removal Officer s Field Manual Appendix 11-4: 2.1.1, available at (updated through Nov. 2003). Officers are instructed to ask the juvenile about 12 topics not covered on the I-213 form itself and to add [the resulting information] to the narrative of the I-213 Form. Id. at These guidelines simply were not followed here. Exhibit 11 does not contain much of the basic information requested on the form itself, including information about any: (1) U.S. and/or permanent address; (2) city and state of birth; (3) Social Security number; (4) funds; (5) scars and marks; or (6) FBI number. Exhibit 8 lacks this same information (aside from scars and marks) and also lacks information on (7) passport; (8) visa; (9) parental addresses; and (10) employment. Exhibits 8 and 11 do not indicate whether John had been advised of his communication privileges and, as discussed above, they do not indicate the source of their information. Exhibit 8 s narrative, which is three sentences with a total of 44 words, clearly does

224 not cover the 12 topics outlined in the Juvenile Protocol Manual. Exhibit 11 references attachments but includes none. The narrative portion of Exhibit 11 talks about John s juvenile court record and his family situation, but is completely devoid of information regarding John s alienage or anything related to alleged date, place, or manner of entry. Further, like Exhibit 8, Exhibit 11 does not cover the 12 topics outlined in the Juvenile Protocol Manual. Obviously an officer need not write a novel about each juvenile for whom he issues an I-213. But he does need to do more than was done in John s case. Under existing BIA precedent, these skeletal I-213s created when John was only 14 and 15 years old fall short of establishing his alienage. 4. Additionally, a Substantial Gap Exists Between When the Information Was Collected and When Exhibit 8 Was Created. I-213s are given a presumption of inherent trustworthiness in part because they are considered documents created in the normal course of business, in accordance with normal recordkeeping requirements. See Espinoza, 45 F.3d at 308 (also noting that border agents routinely complete [the I-213s] after interviewing aliens ); Matter of Rojas, 15 I&N Dec. 722, 723 (BIA 1976) (describing immigration officers unvarying practice in creating I-213s). Part of the normalcy of the I-213 is its creation in relatively short order after the immigration officer obtains information on its subject. Indeed, DHS s own Office of the Inspector General acknowledges that the initial processing of juveniles completed before DHS determines whether the youth will be voluntarily returned across the border, released to a sponsor pending removal proceedings, or detained includes both gathering information on the juvenile and completing necessary immigration paperwork, such as the Forms I-213 and I-770. Office of Inspector General, U.S. Dep t of Homeland Security, A Review of DHS Responsibilities for Juvenile Aliens, at 8 (Sept. 2005). Creation of the I-213 shortly after information gathering is also common in other parts of DHS. See, e.g., Refugee, Asylum and

225 International Operations Directorate, U.S. Citizenship & Immigration Services, Affirmative Asylum Procedures Manual, at 45 (Nov. 2007) (noting that the I-213, if required, is to be created before a case is referred to Immigration Court). In this case, Exhibit 8 was created over nine months after John was placed in removal proceedings and nearly ten months after the date of action listed on Exhibit 8. Compare NTA dated September 30, 2004 with Exh.8. Presumably, DHS had already obtained the information on Exhibit 8, which is repeated on the NTA, before his case was filed in Immigration Court. John did not provide any of the information on Exhibit 8 in July Exh. 9-B 7; Tr. at 119: Thus, a significant period of time passed between the information collection and its recording in Exhibit 8. This passage of time impacts the information s reliability. Cf. Immigration Officer Academy, U.S. Citizenship & Immigration Services, Asylum Officer Basic Training Course 2:7 (Sept. 2006) (acknowledging that facts of cases may blur when case assessments are written at a time removed from the asylum interview, even later the same day). The Ninth Circuit has recognized that the time lapse between the gathering of the information and its recording [on the I-213] is an important consideration in determining whether an I-213 sustains the government s burden. Murphy, 54 F.3d at 611. Where, as here, Exhibit 8 s creation lags long after the information collection with no indication that the information was otherwise accurately recorded in the interim (given the defects outlined above in Exhibit 11), Exhibit 8 falls short of DHS s burden for this additional reason. 3 3 We cannot comment upon the gap in time between information collection and recording in Exhibit 11 because we have no evidence reflecting when the information there was gathered. John disputed that he was the source of this information on or before September 3, 2004, the date Exhibit 11 was created. Exh. 12-B 5; Tr. at 115:20-116:

226 B. The Immigration Judge Properly Denied DHS s Request for a Continuance. DHS has not explicitly argued nor could it that the Immigration Judge erred by refusing it additional time to call the immigration officer who prepared the flawed Exhibits 8 and 11 to testify. DHS brief at 5. The record reflects that the Immigration Judge acted well within her broad discretionary authority over continuances in denying DHS s request. Matter of Hashmi, 24 I&N Dec. 785, 788 (BIA 2009). The Immigration Judge had the discretion to grant a motion for a continuance for good cause shown. 8 C.F.R ; see also 8 C.F.R (providing that the Immigration Judge may grant a reasonable continuance sua sponte or, for good cause shown, upon application by the respondent or DHS). Under Board precedent, motions for more time to prepare or to obtain additional evidence must be accompanied, at a minimum, by a reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and that any additional evidence... is probative, noncumulative, and significantly favorable to the moving party. Hashmi, 24 I&N Dec. at 788 (quoting Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983)). DHS utterly failed to show good cause for its requested continuance. It was silent before the Immigration Judge on any diligent good faith effort to be ready to proceed at the August 10, 2009 hearing regarding alienage. DHS brief at 5; Tr. at 132:3-13. Indeed, DHS admitted at a previous hearing that it had not reached the officer to assess his availability to testify despite the Immigration Judge s directive. Tr. at 42:3-43:19; see also Tr. at 75:4-20. It gave absolutely no indication of what the officer would state or any reason that the testimony must be considered essential. DHS actually continues to treat the testimony as nonessential, arguing that it is unnecessary to establish alienage. DHS brief at 5. Additionally, the Immigration Judge had

227 previously set the case over when DHS was unprepared to go forward and had warned both parties that they must file all evidence and witness lists 30 days in advance of the August 10, 2009 hearing regarding alienage. Tr. at 67:23-68:22, 74:18-75:3, 79:11-24; see also Ahmed v. Holder, 569 F.3d 1009, (9th Cir. 2009) (articulating additional factors relevant to continuances). DHS cites as a reason for a further continuance that the immigration officer was located in San Francisco, and the respondent s proceedings were held in Los Angeles. DHS brief at 5. This did not justify a continuance. John made a witness in San Francisco available for the August 10, 2009 hearing. Exhs. 12-A, 12-C. He did that well within the parameters set by the Immigration Judge and the Immigration Court Practice Manual. Id.; Tr. at 79: If John, proceeding with pro bono counsel and with limited means, can do this, then so too can DHS with all of the federal government s resources at its disposal. Prior DHS counsel agreed. Tr. at 50:9-15 (on September 25, 2008, DHS stated, If we re having a brief continuance, we ll arrange to get this officer present, however it appears from my records that the officer may be located in San Francisco area and, therefore, we request that he be allowed to testify telephonically. ). DHS was on notice for over four-and-a-half years that John was contesting removability. Tr. at 11:9-19. The Immigration Judges involved in this case repeatedly addressed whether DHS was making witnesses, including the officer, available. Tr. at 31:9-17, 36:23-37:1, 50:3-52:4, 56:9-22, 75:4-20. There was no element of surprise here. Whether its lack of preparation was strategy or oversight, DHS properly was put to its burden at the August 10, 2009 hearing. The Immigration Judge soundly exercised her discretion in accordance with the law when she rejected DHS s request for additional time unsupported by good cause

228 C. That John Was Present and Objected to Exhibits 8 and 11 Is Itself Significant. Time and time again, both the Ninth Circuit and the Board have declined to rule in favor of any respondent who fails to object to an I-213 or offer evidence of its deficiencies before the Immigration Judge. This is true when respondents fail to assert themselves in removal proceedings. See Navarro-Martinez v. Mukasey, 271 Fed. Appx. 585, 585 (9th Cir. 2008) (unpublished) ( [T]he I-213 was admitted without objection. ); Barcenas, 19 I&N Dec. at 611 (noting that the respondent failed to produce evidence to challenge any aspect of the I-213). It is also true when respondents fail to show up for their proceedings at all. See Gomez-Gomez, 23 I&N Dec. at 524 (noting that the respondents, by failing to appear, clearly did not produce any evidence regarding the I-213 s deficiencies); Ponce-Hernandez, 22 I&N Dec (concluding that the respondent waived his ability to challenge the I-213 because he failed to appear). John clearly did not take such an approach. He filed two sets of Objections to Evidence as well as multiple pre-hearing briefs and declarations. He testified on direct and crossexamination in support of his position and to meet his burden to discount the I-213s. John vigorously opposed the use of Exhibits 8 and 11 against him. The seemingly constant use of I- 213s against respondents in removal proceedings should not create the illusion that they are invincible. When, as here, unreliable I-213s were introduced and the respondent strongly objected and produced evidence to undermine them, the Immigration Judge was well within her power to conclude that DHS has failed to prove alienage. In assessing the use of I-213s to prove alienage, the Ninth Circuit has made clear that [t]he burden of establishing a basis for exclusion of evidence from a government record falls on the opponent of the evidence, who must come forward with enough negative factors to persuade

229 the court not to admit it. Espinoza, 45 F.3d at 310. John has met his burden here: Exhibits 8 and 11 s dubious sources, inaccuracy, and lack of detail as well as the temporal gap between investigation and the creation of Exhibit 8 properly persuaded the Court not to credit it. Thus, DHS s argument that the Immigration Judge fail[ed] to shift the burden of proof to the respondent to rebut the evidence of alienage submitted by the Department, DHS brief at 1, falls flat. John met his burden, and the Immigration Judge followed the law in her treatment of Exhibits 8 and 11. III. The Immigration Judge Properly Allowed John to Invoke His Fifth Amendment Privilege in the Face of Questions Regarding Alienage. The Immigration Judge protected John s constitutional rights and followed lines of case law from the Supreme Court to the Board when she allowed John to invoke his Fifth Amendment privilege in the face of questions regarding alienage. Her failure to do so clearly would have constituted reversible error. DHS s arguments to the contrary are baseless. The Fifth Amendment privilege against self-incrimination may be asserted in a variety of proceedings including criminal, civil, judicial, and administrative. Kastigar v. United States, 406 U.S. 441, 444 (1972). Respondents have done so for decades in immigration court proceedings with judicial and Board approval. See, e.g., Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1019 (9th Cir. 2006); United States v. Alderete-Deras, 743 F.2d 645, 647 (9th Cir. 1984); Matter of Carrillo, 17 I&N Dec. 30, (BIA 1979). As DHS correctly points out, a respondent cannot assert a Fifth Amendment privilege against every conceivable question. Instead, it must be against a question whose answer could incriminate him in criminal proceedings. See, e.g., Garcia-Quintero, 455 F.3d at 1019 ( The Fifth Amendment privilege against self-incrimination applies in removal hearings where the alien s testimony could expose him to future criminal prosecution. ); Alderete-Deras, 743 F.2d

230 at 647 ( [A]n alien may assert his fifth amendment right to refuse to answer questions in a deportation hearing if the answers would incriminate him on a criminal matter. ); Carrillo, 17 I&N Dec. at ( The respondent could refuse to answer, on Fifth Amendment grounds, any question he reasonably believed might have a tendency to incriminate him or furnish proof of a link in a chain of evidence. ). Questions regarding alienage fit precisely into this category. A concession of alienage in removal proceedings could expose a respondent to a range of criminal prosecution including prosecution under 8 U.S.C. 1325(a). See 8 U.S.C. 1325(a) ( An alien who... enters or attempts to enter the United States at any time or place other than designated by immigration officers... shall, for the first commission of any such offense, be fined under title 18, United States Code, or imprisoned not more than 6 months, or both.... (emphasis added)). Alienage is an essential element of this offense. See United States v. Montecinos-Rivera, 2009 U.S. Dist. LEXIS , *3 (S.D. Texas 2009) (citing United States v. Flores-Peraza, 58 F.3d 164, (5th Cir. 1995)). It is thus a proper subject of the Fifth Amendment privilege. Cf. Bigby v. INS, 21 F.3d 1059, 1060 (11th Cir. 1994) (reversing the Board on invocation of Fifth Amendment privilege where the Immigration Judge compelled respondent to answer questions regarding alienage despite his attorney s concern for danger of prosecution for criminal offenses that include alienage as an element ). The Constitution squarely protects John from being compelled to answer questions regarding alienage, and the Immigration Judge was bound to respect this principle. DHS cites United States v. Costello, 222 F.2d 656 (2d Cir. 1955) for the proposition that John cannot assert his Fifth Amendment privilege because questions regarding alienage do not subject a respondent to criminal liability. DHS brief at 6. This takes Costello too far. In that

231 case, the defendant was a naturalized citizen. Id. at 659. He refused to answer a range of questions from birthplace to acquaintance with two witnesses. Id. at The court simply observed that it could identify no substantive crime or ongoing conspiracy that would subject the defendant to prosecution particularly given the 29 years that had passed since the defendant s naturalization. Id. at 662. An alleged alien s entry without inspection, and its attendant criminal liability, was not at issue in that non-binding case. Its holding was thus limited, not broadly reaching as DHS wishes it to be. DHS also argues that the Immigration Judge erred in relying upon Lopez-Chavez v. INS, 259 F.3d 1176 (9th Cir. 2001) because that case did not squarely address whether a respondent can assert a Fifth Amendment privilege against questions going to alienage. It is true that the Fifth Amendment privilege against self-incrimination regarding alienage came up only in Lopez-Chavez s procedural discussion. Id. at However, that the Immigration Judge intimated that Lopez-Chavez stood for the principle that John has a Fifth Amendment right not to answer questions relating to alienage does not mean that John in fact has no right. While a Ninth Circuit panel might squarely address this precise issue in a later opinion, until then an Immigration Judge need not disregard Lopez-Chavez s tacit approval of the Fifth Amendment invocation. See United States v. Kincaid-Chauncey, 556 F.3d 923, 937 (9th Cir. 2009) (noting that a principle assumed but not decided in a previous opinion was now being explicitly held). The Immigration Judge acted absolutely consistently with all governing Ninth Circuit and Board precedent when she made her Fifth Amendment decision in John s case. That DHS has a duty to establish alienage by clear and convincing evidence and can question John under oath does nothing to undermine John s Fifth Amendment privilege, despite DHS s argument to the contrary. It is unthinkable that the regulations DHS cites can be properly

232 interpreted to trump John s constitutional rights. See Alvarez-Garcia v. Ashcroft, 378 F.3d 1094, 1099 (9th Cir. 2004) (reviewing DHS regulations for constitutionality). Indeed, the very case DHS cites to support its position contemplates that a respondent may refuse to testify to establish his own deportability. See Matter of Tang, 13 I&N Dec. 691, 692 (BIA 1971). DHS was given the opportunity to cross-examine John within the bounds of the Constitution, and it did so. That was all that is required. That DHS failed to meet its burden does not allow it to re-write the constitutional protections to which respondents like John are entitled. The Immigration Judge properly allowed John to invoke his Fifth Amendment privilege against self-incrimination. Conclusion For DHS s failure to establish John s alienage in the five years his case was pending, the Board should affirm the Immigration Judge s order terminating these proceedings. Dated: January 15, 2010 Respectfully Submitted, PUBLIC COUNSEL By: KRISTEN JACKSON Attorneys for Respondent John Doe

233 APPENDIX 10 Suppression/Termination Intake Questions 229

234 INTAKE QUESTIONS TO SCREEN FOR SUPPRESSION/TERMINATION ISSUES Please note these questions are intended to help investigate a possible termination or suppression strategy. Obviously, most children are not going to be able to answer a number of these questions. It is helpful to explain that you are asking these questions to determine if immigration broke any of their rules in how they treated the child. Be sure to ask these questions and respond to the answers using the child interviewing skills outlined in Section IV.A. How did immigration find/catch/arrest you? What were you doing when immigration found/caught/arrested you? Where were you when immigration found you? Walking in the desert? Mountains? Town? How many officers were there? Were you scared? Why were you scared? How were you transported by immigration? Did they use handcuffs? Where were you taken? Where were you held? What did the place you were held look like? Who else was in the room/cell you were held in? Any adults or only children? Only boys? Or only girls? How was the temperature of the room? Were you ever held in a room where it was painful because it was either very hot or very cold? Could you sleep where you were held or were you forced to stay awake? When it was time to sleep, did one of the officers make lots noise that made it impossible to sleep? Did you have a mattress? Did you have a pillow? Were you given food? What was the food? How frequently were you fed? At any time from the time you were caught by immigration until you were released, did you feel pain? What type of pain? Where did the pain come from? Who caused the pain? Did you have any bruises or marks on you as a result? If you were in pain, did you see a doctor? Did you tell anyone you were in pain? How did they respond? Did you stay at more than one place with immigration? How many places? (Go through the above questions about where the child was held for each facility.) Did you understand what was happening to you? Did you feel like you had to answer the immigration officer s questions? When you were questioned by immigration officers who else was there? 1

235 Where were you questioned by officers? When you were questioned by officers was the door open or closed? Were you free to leave? Did you feel free to leave? What did you think would happen if you didn t answer the officer s questions? Did immigration make any promises about what would happen if you answered the questions? Did immigration make any threats about what would happen if you didn t answer the questions? Did the officer speak Spanish? Fluently? Did the officer use an interpreter? Did you understand the interpreter? Did you get to make a phone call? Do you remember being told about your rights? Did you get to make a phone call? Were you told you had a right to a lawyer? Were you told you had the right to a hearing before a judge? Were you told you could talk to your consul? Do you remember any of the questions the officer asked you? What were they? Do you remember any of your answers to the officer? What were they? Did you tell them where you were from? Were you asked to sign papers without understanding them? Can you read? Were you able to read the papers you signed? Did someone read the papers you signed to you in a language you understand? Did you receive copies of the papers you signed? Right away or on your last day with immigration? Do you still have those papers? Can I see those papers? Do you remember what those papers were? (You can show a sample I-770 and NTA to see if the child recognizes those documents) What if any identity documents did you have on you? Birth certificate? Matrícula? DUI [documento único de identidad / El Salvador]? Did you give any documents to immigration? If so, what documents? How did you get to the person who you are staying with now? Did you take a plane? Did the person you are staying with come get you? Do you know if the person who you are living with received copies of your immigration documents? If so, how? By mail? In person? Did anything else happen during your time with immigration that you want to tell me about? That seemed unfair or painful or seemed like immigration was behaving badly? IF INTERIOR ENFORCEMENT, did you give permission to anyone to share your information with immigration? 2

236 APPENDIX 11 Sample Master Calendar Hearing Cheat Sheet 232

237 CHEAT SHEET: MASTER CALENDAR HEARING Before the Hearing: Review Court s A file and Record of Proceeding (if this is not the first hearing) File ORR Records Request and CBP/ICE/USCIS FOIA as applicable (do not include alienage on requests) Develop suppression/termination theories and strategies with your client through a series of meetings Advise client and caretaker that caretaker should not attend the hearing Prepare client to not answer questions in court about alienage, country of origin, nationality At the Hearing: Ask for Motion to Continue for attorney preparation time if you are not ready to proceed Holding ICE to its burden of proving alienage: - - Does the government have the A file? If not, move to terminate based on failure to sustain burden of proving alienage. - - What evidence does the government have of respondent s alienage? If none, or if refusing to produce the evidence, move to terminate. - - Object to any evidence presented in open court as untimely and request time to review. - - Move the judge to compel ICE to produce the documents that allegedly establish alienage. Request that IJ require ICE to prove up proper NTA service Challenging the Notice to Appear: - - Object to NTA service in the court room. This does not cure past improper service. - - Do not concede to proper service and/or enter pleadings until you have time to analyze the issues of service, inaccuracies, and deficiencies of the NTA. Request time to brief the issues related to the NTA. - - If client pleaded previous to representation, motion to set aside pleadings and request time to brief the issues. If you are forced to proceed, state that you are putting ICE to its burden of establishing alienage, and deny the factual allegations and charge of removability. Identify all grounds for suppression/termination and state you will file a Motion to Suppress/Terminate. Ask the judge to set a deadline for ICE counsel to submit all evidence of alienage. Ask for a briefing schedule and an evidentiary hearing. Move the IJ to compel ICE s production of a copy of the A file, or ask for a briefing schedule that accounts for the return of your FOIA requests.

238 APPENDIX 12 Evidentiary Objections Cheat Sheet 234

239 CHEAT SHEET: OBJECTIONS IN IMMIGRATION COURT 1 Relevance and fundamental fairness are the only bars to admissibility of evidence in immigration court. These provisions are anchored in the due process clause of the Fifth Amendment. Although not applicable in immigration proceedings, the Federal Rules of Evidence (FRE) are based on principles of relevance and fundamental fairness and can be used as a guide. OBJECTIONS TO DOCUMENTARY EVIDENCE Untimely Filing: If the government attempts to file documentary evidence in open court, object to the evidence as untimely as it circumvents the respondent s right to a reasonable opportunity to examine and object to the evidence presented against her. 8 CFR (a)(4); ICPM Ch. 3, 3.1(b) & (c). Argue that the document should not be entered into evidence; or, if entered, that it should not be given weight. ICPM Ch. 3, 3.1(d)(ii). Relevance: Relevant means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. FRE Rule 401. Completeness (goes to reliability/fundamental fairness): Object when government counsel shows a witness an incomplete record or transcript of a prior proceeding. Incomplete documents are often unreliable. FRE Rule 611(a). Authenticating or Identifying Documentary Evidence (goes to reliability/fundamental fairness): To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is. FRE Rule 901(a). Sample objection: Authenticity/reliability/fundamental fairness, impossible to determine whether this document is what the TA purports it to be because there is no date/signature/chain of custody/etc. Right to Cross- Examine Author of the Document (goes to reliability/fundamental fairness): Respondents have a right to a reasonable opportunity to cross- examine witnesses in immigration court. 8 C.F.R (a), (a)(4). When the government fails to produce a critical witness and attempts to rely instead on a document authored by the witness, counsel should object to the document based on fundamental fairness, reliability, and the right of confrontation contained in the due process clause of the Fifth Amendment. OBJECTIONS TO QUESTIONS Relevance: Relevant means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. FRE Rule 401. Leading Question (goes to the fundamental fairness): A leading question contains or suggests the desired answer to the witness. Leading questions are permissible on cross- examination or if a witness is hostile. FRE Rule 611(c). Counsel is Testifying/Argumentative (goes to fundamental fairness). See FRE Rule 611(a). Compound Question (goes to reliability/fundamental fairness): When two questions are posed as one, a witness s response will be ambiguous and unreliable. See FRE Rule 611(a). 1 Thanks to Erich Straub and Matthew Shaftel of Shaftel Law for providing the basis of this Cheat Sheet. 1

240 Asked and Answered (goes to judicial efficiency): The same question should not be repeated because it wastes time and places undue emphasis on a particular question or answer. See FRE Rule 611(a). Narrative (goes to relevance): Allows a witness to inject inadmissible evidence into the proceeding. By requiring attorneys to ask a series of questions which call for succinct answers, opposing counsel will have an opportunity to object. FRE Rule 611(a). Assumes Facts not in Evidence/Lack of Foundation: Question assumes facts that have not yet been established. FRE Rule 611(a). Prejudice, Confusion, Waste of Time, or Other Reasons (goes to reliability/fundamental fairness, judicial efficiency): The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, undue delay, wasting time, or needlessly presenting cumulative evidence. FRE Rule 403. Personal Knowledge (goes to relevance and fundamental fairness): A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. FRE Rule 602. Confusing / Vague / Ambiguous (goes to fundamental fairness): A question must be posed in a clear way so that a witness can reasonably know what information the examiner is eliciting. FRE Rule 611(a). Beyond the Scope of Direct / Cross / Redirect Examination (goes to fundamental fairness): The scope of questioning is limited to the scope of the previous examination. FRE Rule 611(b). Misstates Evidence / Misquotes Witness / Improper Characterization of Evidence (goes to fundamental fairness): FRE Rule 611(a). Cumulative (goes to fundamental fairness, prejudice, and efficiency): Counsel keeps presenting additional evidence when a point has already been established. FRE Rules 403; 611(a). Conclusory (goes to reliability/fundamental fairness): Object when a question calls for a conclusion the witness is not qualified to make. A conclusion is a deduction drawn from a fact or series of facts. In general, witnesses should testify only to facts (or inferences from facts). See FRE Rules 701 (Opinion Testimony by Lay Witnesses), 702 (Testimony by Expert Witnesses), 703 (Bases of an Expert s Opinion Testimony). Hearsay (goes to reliability/fundamental fairness): Hearsay is any out of court statement, including live testimony by a witness of his/her own prior statement, presented for the truth of the matter asserted. FRE Rules Challenge multiple levels of hearsay as particularly unreliable. 2

241 APPENDIX 13.A IJ Interim Decision on Interior Enforcement Motions to Suppress and Terminate 237

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