Maria de Jesus Ortiz-Mejia, A093 138 113 (BIA Mar. 7, 2013)

RONEY, KTIE
Monlson & Forter LLP

425 Maret St.
San Francisco, CA 94105
U.S. Department of Jusce
Executive Ofce fr Imigtion Review
Board of Immigation Appeals
O.ice qf the Clerk
JI 0 7 Ltb1tr Pi . '1it WOO
Fall Chuh. Yrnia J<1
OHS/ICE Ofice of Chief Counsel . SFR
P .0. Box 264 9
San Francisco, CA 94126-49
Name: ORTIZ-MEJIA, MARIA OE JESUS
Riders:093138114
A 093138113
Date of this notice: 3n/2013
Enclosed is a copy of the Board's decision and orer in the above-referenced case.
Enclosure
Panel Member:
Wendtland, Linda S.
Donovan. Teresa L.
Pauley, Roger
Sincerly,
DC c t
Donna Car
Chief Clerk
schwarzA
Useream: Docket
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Cite as: Maria De Jesus Ortiz-Mejia, A093 138 113 (BIA Mar. 7, 2013)
'
U.S. Deparent or Justce
E:euivo Ofc fr Imigion Review
Deision of te Boa of Imigation Appes
Falls Chuh, Viginia 220 l
FiJes: A093 138 113 " Sa Fraciso, CA
A093 138 114
Dae:
I re: M DE JESUS ORT-MJIA a.k.a. Maa Oniz
FELIE DE JESUS SOLIS-MIAM
I RMOVAL PROCEEDIGS
APEAL
ON BEHALF OF RSPONDENTS: Katie Roney, Esquire
ON BEHALF OF DHS: Scot A. Eh
Asistnt Chef Coul
CHOE:
MAR -7 2013
Notice: Sec. 212{a)(6){A)(i), l&N Act [8 U.S.C. I J82(a){6)(A)(i)]
Prsent witout bing admite or pale (oth respondents)
APPLICATION: Suppssion; tenination
The rspondents
'
apl fom te decision of the Imigton Judge dated Novembr 22,
2011, denying thei motion to suppress evidence ad teninate proceeings, fnding tem
rmovable a chage uder section 212(aX6)(A)(i) of the Imigaton ad Nationalit Act,
8 U.S.C. l 182(a)(6)(A)(i), ad orering their removal to Mexico. 2 The appeal will be
sustned in pa ad te rord wll be rmaded. 3
We rview te fndings of fact made by te higation Judge, includig te deerinaton
of creibility, fr cle err. 8 C.F.R. 1003. l(dX3Xi). We revew a other issues, including
questions of judgent, discretion, ad law, de novo. 8 C.F.R. 1003.l(d)(3}(ii).
1 The rspndent' motions to suppress evidence ad terinate proceedings a based on similar
facts ad their removal prcedings have been joined fr administtive convenience.
2 In the November 22, 201 I, decision the Im igation Judge indicated that within 15 days of the
issuac of that decision the rspndents should, if they wshe to do so, submit a wtn
sttement indicatng a count of rmova ad what frs of relief, if ay, they would b seeking
(ovemb 22, 2011 I.J. Dec. at 26). Te respondent did not submit ay such sttement. O
Dember 20. 2011, baed on the fndings ad aalysis in the November 22, 2011, deision, the
Immigton Judge issued n deision ordeg te respondents removed to Mexico. All
refernces in ts decision to "l.J. Dec." refer to the Novembr 22. 2011, deision.
3 We accept te rspndent' rply brief fled on Jue 13, 2012.
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093 138 113 et a.
We afn te Imigrtion Judge's deision aditing te seah wr t into evidenc
(I.J. at 15). Te resondent' statement on appe does not convnce us of ay rverible eror in
the Immigation Judge's deterination tat the warat is probative a it rlate to wheter the
Depamet of Homelad Seut (DHS) ofcers' intercton wt the rspondents wa law
ad tat te admission of the wr t is fndaentally fair (Respndent' Br. at 24-25). Matter
of Grialv, 19 l&N Dec. 713, 722 (BIA 1988); Matter of Ponce-Hernndez. 22 I&N Dec. 784,
785 (BIA 1999). A note by the Imgation Judge, the wart w uder s dug te
initia 2 yea the rspndents wer in proceedings ad te DHS appa to have actd diligently
in profering te wart onc it w uaed. Additionly, te respndent hve not
etablishe they were prejudice by te delay i the war t beig entere it evidece. See
Lcsina Panglinan v. Holdr, 568 F.3d 708, 709 (9 Cir. 2009) (stating, "[a] due procs
violation occu where ( 1) the proceeding wa so fndaentally ufair that the alien w
prevented fm reaonably prsentng his cae, ad (2) the alien demonsttes prjudice, whch
meas that the outcme of te proceding may have be n afected by the allege violation"
(citation and interal quotton marks omited)). Te rspndents' speculation that the OHS
ofcers may have rmembed their encounter wit the rspondents mor clealy ad that this
ence memor may have inu to te respndents' beneft is insuf cient to etablish te
outcome of the prceedings may have been afected by te delay. Accordingy, we fnd no bais
to rvere the Imigation Judge wt respect to the admission of te sah war at ito
evidence.
Wit rese t te respondets' moton to suppress evidece we cnider: (1) whether te
cirustces of the rspondents' contact wth DHS ofcer on May 2, 2008, constte a
eggiou violation of the Fouh Aendment; ad (2) if so, wheer the evidence obtined
dung that encoutr, including the resndent' statments to the ofcers at that te wherin
tey admit t being natives ad cites of Mexico prsent in the United Sttes wthout
autorztion shoud be suppssed a te ft of this unlaw conduct.4
We begin our aalysis of these issues by obsering that it is well-stablished that the
exclusiona rle is generaly not applicable in deprion (or rmoval) proce gs. INS
1. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984); see also Matter of Sndval, 1 7 l&N Dec. 70,
77-83 (BIA 1979). Te exclusiona rle aose in the context of criminal preing ad
rquir the sppresion in such prceedings of evidenc tht is the fit of a ulawfl ar st, or
of other ofcial conduct which violate te Fou Amendment. In INS v. Lopez-Mendoa,
supra, the Suprme Cou lef open the possibility that the exclusionar rle migt also apply in
imgtion proceedings involving eggous violations that tsgess notions of fdaental
faies. INS v. Lopez-Afendoza, supra, at I 050. Morver, the United States Cour of Apps
fr the Nint Circuit te law of whch contls her, ha secifcaly held tht te excluiona
rle sometmes dos apply i immigton prceedings, to the extent of requirg te exclusion
of any evidence tt h be obtined a te result of a delibrat violation of te Fouh
Aendment, or as te rsut of cnduct that a reasonable ofcer should have kow is in
violation of the Consttton. See Lopez-Rodigez v. Mukey, 536 F.3d 1 012 (9th Cir. 208),
reh 'g en bae denied sub nom. Lopez-Rodrigez v. Holdr, 560 F.3d 1098 (9 Cir. 2009);
Orhorhghe v. INS, 38 F.3d 488 (9h Cir. 1994); Gonalez-Rivera v. INS. 22 F.3d 1441 (9th Cir.
1994); Adamson v. C.lR., 745 F.2d 541 (9th Cir. 1984).
4 We asume the paes' fmiliaty with the facts and decline to recit tem at leng he.
2
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A093 138 113 et al.
We afn the Immigon Judge's detenination ta the OHS ent it ad seah of te
premises of the El Balao Resut on Haigt Stet wa lawl. Te OHS submited evidenc
tat eblishes the ofcer who conducted the rd ad sched te rstaurant did so uder te
authorty of a facially valid sh waat issue by a neut magstate (.J. at 22; Exh 8 (113);
Ex. 3 (114)). Tere is no evidece in te record suggeing eiter that the sah wr t w
not suppr by probable cuse or that the ofc exeuting te wart did not rnbly
believe tat it wa so suppored. United States v. Leon, 468 U.S. 897 (1984). Tus, the rd wa
conducte uder lawl autort, ad te DHS submite sufcient evidence t overome te
resondents' prme facie showing of a eggious violation of their Fourh Aendent Rghts
with rspct t the ent into ad seh of the retaut.
We also afn te Imgaon Judge's deten ination that the bref detention of te
respondents incidet to tha sech was lawfl. See Mueh/er v. Mena, 544 U.S. 93. 98 (205)
(holding that plaing te occupat of a ridenc in handcufs a gu point ad detainig her fr
te hou while exeuting a seah war t, was a ronable ue of frce ad reprsented a
maginal intsion into her constttonal rght). Coniderng all circustces, detainent of
the rspondent was raonable, given tat the search area included a kitchen envronent whch
prsent uique factors related to ofcer safety ad the need to prvent the pssible desction
of evidence. See Mueh/er v. Mena, supra, at 98-99; Michiga v. Sumers, 452 U.S. 692,
702 (1981) (reogizing that te exeuton of a wart t seh fr drgs "may give rse to
sudden volence or ftc efor t conceal or destroy evidenc,., ad holding t ofcer
executng a sch warant fr contabad may use reasonable fre to detain perons wti a
residence t prvent figt ad "mimiz[e] the rsk of hanto te ofcr.").
However, we conclude that the Immigton Judge comit reverible err in rlation to
the aalysis of the seh of te rspndents prsonal propry. I ts rega, te rondents
asser that the OHS ofcer seahed their personal propr, including the female rspndent's
pue ad te male respondent's walet outide the scope of the wart ad without their
connt, in violation of te Four Amendment. The rspondent claim that tes seaches took
place pror to teir bing inteiewed by OHS ofcer, but that tey wer aware the ofcers had
sehed their penal propery ad likely obtained evidec of their alienage at the time of te
interiew. Te respondents claim fher tat the infonation gleae fom thes pst-searh
interiews, memoralized i the fons 1-213 (Recor of Deprable/Inadmissible Alien}
profered by te DHS, shoud b suppressed a fit of the illega seach.
Fir, we agee wit the respndent tat te Imigation Judge eroneously allocated te
buden of pro f t them isead of te DHS afer they had esblishe a prma facie c tat
they had suferd a eggious violation of teir Four Amendment rghts. I rmoval
procedings, a alien seeking te exclusion of evidence based on the Fourh Aendment ba
the burden of establishing a prma facie cse that evidence should be suppressd. Matter of Tang,
13 I&N De. 691, 692 (IA 1971). Te rquest to excJude evidence shouJd b made via a
motion t supprss that is suppor by a afdavit or other objective evidence that explains why
suppression is appropriate. Malter of Wong, 13 I&N Dec. 820, 822 (BIA 1971). Te afdavit
mut contain spcifc, detled satement based on the prsonal kowlege of the afat.
Maller of Tang, supra; Mater of Barcena, 19 I&N De. 609, 611-612 (BI 1988). Only when
a alien has come frard with adequae evidece in suppr of suppression wl the burden shf
3
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A093 138 113 et a.
t te DHS to jusf the maner in whch it obtained te evidenc. Matter of Barcena, spra,
at 611.
By way of a interlocutor deision daed July 30, 2009, the Imigton Judge detenine
that the rspndents eslised a prma fce ce tha the h sfed a eggious violaton
of their Fouh Amendent rgts. Upon respondents' estblishent of ths pra faie case, the
buden of prof should have shfed to the OHS to establish that te evidence proferd i tes
prweedings is admissible. See Matter of Barcena, supra, at 611-612; Matter of Wong, sura, at
822. However, the Immigration Judge's decision rfect tat te higaion Judge asiged
te buden of prof to the resondents (see, e.g., I.J. at 23 (stting in rfernce to te respondent,
"[t)hey did not estblish that tey would not he aer te questons but fr the s nor
did tey show tat the ofcers would not have questione them but fr the sh" (emphais in
orginal})). Tu, we conclude tat te Imigtion Judge comite reverible err.
Second, we cnclude tha te Immigaton Judge applie the wong legal stB1 dar in
analyzing the legal sigifcace of the OHS seach of the respndents' peronal prpery. Te
Imigtion Judge deterined tat even assuing this seach was uawl, it is not a bais to
supprss te rspondents' statements bcu te rspondents did not establish that "bu for" the
illega1 seh they would not have amite aienage in their statement t the OHS ofcr
(I.J. at 23). Te Imigation Judge did not prvide authority fr te prposition tt a stteent
obtained fllowng a Fou Aendment violation is adissible unless te pa seking
suppression ca establish that ''but for" the violation the statemet would not have been made.
We agee wth the rspndents that this .. but fr" test is incorect a a matr of law. I order fr
the caul chain bten a Fourh Aendment violation ad a defendats sttemet made
subseuent therto to b broken, te statement must "b sufciently a act of fe will to purge
te prmar taint.0 Brown v. Illinois, 422 U.S. 590, 602 (1975) (quoting Wong Sun '. United
Stares, 371 U.S. 471, 476 (1963)). Te Cou idetfe the factors fr aalysis: (I) te
temprl prxt of te illegality ad the stteent; (2) the prence of inteienng
cirusces; ad (3) the puose ad fagacy of the ofcia misconduct. Id. at 603-04. Te
goveret bas te bden of proving tat the tt of illegalit wa puged. Id. at 604. Te
Immigrtion Judge did not apply these fator i asessing the adissibilit of the stement te
respndents made to DHS ofcers. 5 Tus, we age wth the rpndent that the Imigration
Judge's "but fr" test ws eroneous a a mater of law.
Tird, te Imgation Judge erd in not specifcally making fndings of fact related to
wheter te repondents' personal prprty wa seahe pror to their interiew Bd subseuent
arst by OHS ofcer. Te Imigation Judge electe not to make specifc fdings related to
this issue, but intead idicated that even asuming_respondent' version of events wa te, they
had not shown a bais to supprsthe sttements tey made to OHS ofcer. However, a we
have indicated, in doing so the Imigrtion Judge misalocatd the buden of proof t the
5 To clarf, we do not hold tht te seach of the rspndet' s personal prop occur pror
to the respondents making sttements to DHS ofcers; that if the sah ocurprior to making
the stateents, the sh violated the Fourh Amendment; or tat if it did violate the Fouh
Amendent, such violation was egegious. Rather, we hold only t inamuch a te
Imigtion Judge asued aguendo tat the respondents' version of events w te, the
corect lega stdard must be applied to thes asumed fact.
4
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A093 138 113 et al.
rondents ad miste te law wt rspct to what the OHS must esblish in orde to
de1onstat that te resndents' satements a adissible Tus, we cnclude ta the
hgtion Judge er ed by not makng spcifc fndings of fact detenining which veion of
the events, te rondents or the DHS ofcer', is ac ute.6
In light of the frgoingg we conclude that rmad fr aditional considertion of the
respondent motion to spprss is apprpra. On rmad: (1) the Imigton Judge should
detenne wheher te OHS sh of te rpondents' prona pper occure bfr or aer
the respndent were questione by DHS ofcer; (2) if te seh ocur pror t this
questonngg the Immigton Judge should detenine wheter the seah violated te Four
Amedment; (3) if s, te Imigtion Judge shoud evaluate weter te sttements a
nevereles admissible ude te fator set frh in Brown v. Rlnis. supra, at 603-0; ad (4)
if the Imigation Judge detenines tat these factors others point to supprs ing the
resndent' sttement, the higtion Judge should detenine whethe the Fourh
Aendment violation wa eggiou uder the sdas of the Unte States Cour of Appls
fr the Ninth Ciruit, such that supprsion is war ated in these civil rmova prceings.
Accrngly, the fllowng order will b enterd. 7
ORER Te rspondent' app is sutained in part.
FRTER ORER: Te record is rmaded fr fer prceedings consistent wit the
frgoing opinion ad fr te ent of a new decision.
FO TBOAR
6 We agee with the Imigation Judge t uder the DHS's veion of events, no volation of
the FoWh Aendent took pla, much less an egegious violaton. Te DHS ofcers wer
authorizd to conduct brief invetigator interews of the rsondent, includig quering them
aout te imgtion stts, puuant to the authority of te sech war t. Muehler v. Mena,
supra, at 100-01. Once these intriews estblished probable caue tat the resondent were
ulawlly prsent in the United States, the ofcer wer empwerd t arst them ad sh
their persona! prprt incident to this arest. See 8 C.F.R. 287.8(c)(2)(i); United States
v. Robinon, 414 U.S. 218 (1973) (ntng ofcers t conduct a cntemporeous .. fll feld
sech" incident to a law custodial are). However, if te OHS ofcer illegaly sahed te
rspandents peronal prprty pror to engagng in what othese would have ben lawl
questioning of te respondent pusuat to the seah wr t, sch illegal conduct may rnder
the evidence sbsqently inamissible. Brown v. Ilinois, supra.
7 I ligt of our decision t rmd fr fher conidertion we declie to addrss at ts time
the other issues rsed by the paes on appeal.
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UITD SATES DEPARTMNT OF JSTICE
EXECUTIE OPFIR FOR IMMIGRTION RVIEW
1Ml1IGR TION COURT
SAN FRNCISCO, CALIFORIA
Maters of
)
)
Mara de Jesus ORTIZMejia, and
)
Felipe de Jeus SOLIS Miam,
)
)
Respndents
)
>
Date:
NOV IS 2011
FiJe Nubr: A093-13S.l 13
A093-IJ8-114
In Remoyl Prceeings
Chage: Section 212(a)(6)(A)(i) of the Imigraton ad Natonait Act, a
aended, a a alien prent in the United Stats without being admited
or paled, or who arved in te United Stats at ay time or place other
tha a desigated by te Atore General
.
Appliction: Motion to Suppess, Motion to Terinate
On Bef of Rndents:
Maelo O. Guera
Morison & Foerster, LLP
425 Maet Steet
San Frncisco, Califria 94105
O Behalf of the OS:
Sct Eash
Ofce of te Chief Counsel
120 Montgomer Stree Suite 200
Sa Fracisco, Califria 94104
DECISION OF T JMMGRON .GE
I. PROCEDURBACKGROUD
On May 9, 2008, and May 12, 2008, the Depament of Homelad Secut ("OHS, fled
Notices t App (''T A'') wth tis Cour regarding Responden Maa de Jes ORTI
MEJIA ad Felip de Jesus SOLJS MI, resectively. Exh. l (A093-138-l 13); Exh. I (A093-
138-l 14). Te NA alleged tat Respondents a not natves ad citzns of te United Stae,
but a natives and citizens of Mexico who enter the Unted States wthout inspction by a
immigtion ofcer. Id. Te NTAs chaged Respondents with removability puuant to section
2 l 2(a)(6)(A)(i) of the Immigation od Nationality Act. {''Act" or .. IA") a endeds as aliens _
present in the United States without being admited or parled, or who arived in the United
States at ay time or place oter tha as desgnated by the Atorey General. Id. Respondets
denie all allegations and the chage ofremovnbilit.
To suppor te allegations ad charge, the OHS fed Fons 1-213, Recor of
Deporable/nadmissible Alien, fr each Repondent. Exh. 2 (fr identifcation) (113); Ex; 2
(fr identifcation) (114). Repondents moved to supprss the Fons I-213 on te bais that te
A03-138113, 114
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infration contned wthin them wa gatherd in violation of the United Stte Consttution
and the Feer Reglatons. Resp't's Mot. to Suppress (eb. 6, 2009).
On May 1 8, 2009, the DHS moved to pretenit Respondents' motions on the bais tat it
h obtined indndnt evidence of aienage of bth Resondents, rndering teir supprssion
motion moot. Te Cou denie te OHS's moton on Juy 30, 2009. Decision of te
Jmigtion Judge (Ju. 30, 2009). On the sae date, the Cou fud that bot Resondents
h elishe a pria facie cae fr supprssion. Id; see also Mater of Barcena, 19 I&N De.
609, 611 (I 1988).
Respondents testife in supor of their motions to supprss on Octobr 31, 2008, ad
October 12, 2010, pusuat to Barcena. 19 J&N Dec. at 611. Following Repondents
testimony, ad in the absence of convncing evidence in the record that te infration contine
in the 1213s w obtained puuat to a seah war t, te Cour fund that Respndent'
declaations ad testiony esablished aprimafacte cae for suppression under Barcens
therfre, the Cou shfe te burden of prof to the DHS to justif the maner in which it
obtined the evidence. See id at 611.
Respondents' ce cae to te Cour fllowng a coorinte Imgtion ad Cms
Enfrcement ( .. ICE") opraton at vaous El Bala restaunts thoughout the Sa Fracisc,
Califra, Bay Aa. Toughout the prcedings, the OHS mntined that te ICE option at
RespndenCs place of empJoyment-the E Balaz rstaurat on Haig Stet in San Frcisc.
Caiforio-v conducte puuat t a federal seach war at. However, te OHS stated that
the wrt had ben sealed by te Federl Distct Cour ad it would b a violation of the
sealing order to disclose its contents. To suppr its rprsenttion that te seah was vaid
bcause it wa conducte puruat to a wart, the DHS presented te testimony of Agent Ry
Maclea on Dembr 10, 2009. As explaine in the Cour's prvous orer, Orer of the
higtion Juge (Apr. 29, 2010), Agent Maclea lacked te individuiz kowledge of te
El Balao operation to testif in a maner that sufcientJy estblished tat te opeation w
conducted puruat to a valid sech wr t. On Septemb 2, 2010, the OHS sbmit a copy
of a crminal seh warat fr a numbr of El Balao restaurt, including te Haght Stet
locaton.
JI, EVDENCE PRSENTED
A. Documentr Evidence
. .
Atoug Resondents' cae have raine consolidaed tougout tee pocedig,
the Con has maintained separate evidentiar records fr each of their cases. Te docuentar
evidence consists of:
II
A093-J38-113, 114 2
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Eibits fe rg Rendt Oiz
Exhibit 1 : NTA;
Exhibit 2 (fr identifction): I-213 rgaing Respndent Oriz;
Exhibit 3: Declation of Respndent Ortiz;

Exhibit 4 (fr identfcation): Photocopies of social seut and lawl pnet ridenc
cads beng te name ad photogph of Respndet Oriz;
Exhbit 5: Photocopies of Mexica identifcation cd barng the nae ad
photogrph of Resondent Ori;
Exhibit 6: Had-drawn map of the El Balazo Haight Steet rsaurnt;
Exhibit 7 (fr identifcation): Scratch J . 2 J 3 regaing Respondent Oriz;
Exhibit 8: Warant issued by United States Magistate Judge Jae Lson;
Exhbit 9: Photogaph of te kitchen a of te EJ Balazo Hagt Street
rert;
Exhibit JO: Photograph of te hallway of the El Bala Haght Stet
rut;
Eibit 11: Photogph of the hallway of te El Bala Haight Stet
Exhibit 12:
EKhibit 13:
rstaut;
Photogaph of the dining ara of the El Balao Haigt Stret
rsaut; ad
Photogaph of te dining ae of the El Balazo Haigt Ste
rstaurat.
Exhib f raing Redent Sols
Exhibit J :
NT A;
Exhibit 2 (fr idetifcation): l-213 regading Resondent Solis;
Exibit 3: Warat (duplicate of Exhibit 8 in rr of Rendet Orz);
Exhbit 4: Lete fom Brce Smit regadig Respondent Solis;
Exhibit 5: Delation of Respndent Solis;
Exhibit 6 (fr identifcaton): Scrtch 1-213 regading Resonden Solis;
Eibit 7: Aicle ... Oers of El Baa Restat Chain Chae w Ta
Fraud, Hiring Illegal Aliens." U.S. Dep't of Justice (Dec. 6, 2010);
Exhibit 8 (fr identifcation): Scratch J-2 l 3 regading Respndent Solis, parially hgigted;
Ehbit 9 (fr identfction): Detenton Forield Inteew Fon rgaing Rendent Solis;
Exibit 10: Declaation of Cristova Gonzlez-Hedez;
Exhibit 11: Declaation of Daniel Gaa;
Exhbit 12: Scrtch 1-213 rgading Crstova Gonalez-Herandez; and
Exibit J4:1 Series oftimestaped photogphs (duplicates of Ehibit 9
thoug 1 3 in record of Respondent Orz).
1 The Cour did not m ay document a Exhibit l 3 in Respndent Solis's record t avoid confion
beieen Exhibit 14 (I 14) and Exhibit 13 (113), one of the photogphs in Exibit 14 (114).
A093-t381U, 114 3
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B. Temony and Delartion of Repondent Ori and Ofcer Szto
I . Tesmony of Reondent Oriz
Rendent Oriz testifed in suppr of her declation on Febr 8, 2010. He
delation appa at Exhibit 3 (113).
Resonde Oriz tesife that she ha a clea memor of te events of May 2, 2008.
Tat day, she was working at the Hight S!et El Balazo restaurnt, prepaing fr the rstamnt
to open aoud l 0:00 or J 0:30 a.m. Respondent Oriz worke a a caser, ad she ha been
working at the resaut fr abu teor three-ad-one-half yes. Apprximtely fve othe
workers wer also preen ad they wer preparng fod fr the day. Respondent Oiz stted
that, at arow1d 10:30 a.m, she wa stding nea the cash register prepang fit cps. Aud
that time, a grup of apprximately seven people dressed in blue2 cae into the retaut
caring weapons i their hnds. Tese pople, whom Respondent Oiz later identifed as lCE
agents, "surounded" her ad her coworkers in the kitchen. Tey told the worker to stop what
they wer doing i loud ad theatening voices, ad someone 1old a worke to t off the stove.
Someone aso asked another employe, whom Respondent Orz later identie a Respndent
Solis. fr te kes to te restauat ofce.3
The agents gathered the worker fom the kitchen and le tem to the upstairs dining
aa wher they .iske them ad ored them to put their belongngs on a tble. Resndent
Oriz testifed that the agent who led her from te kitchen to te dinig ae agabbd" her
shoulder to brg her upstair. We the workers were aske to plac teir blongings on te
table, Respondent Oriz's thngs were dowstir in the kitchen aea whe she had been
workng. Rspondet Oriz"s tesmony regading whch agent reteed ad seched he
backpack wa uclea. Her declartion stats that a mae agent led her dowstair to reteve her
backpak, ad that she did not intect wit a female agent util quesioned a few minute later.
Ex. 3 ( J 13) at 2
.
However, on dirct examination, she testife that a femae agent aked her to
show he whe her tings wer, took Repondet Oriz dowstairs to reteve her backpak, ad
gbbd the pack rfsing to Jet Respndent Orti car it. Respondent Oiz descrbd this
femae agent a Asa sligtly tle t her, ad wit dak hair that cae to her shoudes. O
crs-xaminaton, Respndt Oiz ste both the feale agent ad a mae agent sahe hr
backpack togeter. O crss-exaination, she also stated that te ofcers kept teir wepns
dw while the gatered te employees in the dinng aea.
Next, te se female agent led Respondent Oriz bak upsrs ad told her to sit a a
2 Respndent Oniz's declation state thnl the agent wer wearng "dark colord vess!' Ei. 3 ( 113) a
2.
3 Respondent Oiz also testifed that te ower or the El Balao restaurts is a ma named M. Sandoval.
She stated la Mr. Sndoval keeps an ofce at the Haight Steet rstaurant, to which Rendent O had acces.
However, Respondent Oriz did not have the keys to the ofce on the day of the ICE opertion.
A093-138l13, 114 4
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table. Witout her perission. this agent bega Jooking tugh te backpack, which contaned
Respondent Oriz's identifction cas ad money. Respndent Oriz testifed that she did not
give the agent pission to sah her backpack. The aent puJed out her blong in fnt
of her and couted her money. Respndent Oiz stated that she did not feel fe to leave the
rstaut at this point bcause te wer agents guaring te main door, which she could se
fo te tble where she wa seated. She testifed that, at s9me pint, te feae aget told he
she could not tk on he cell phone, which Respondent Orz had in the pcket of her apron.
ShorJy afer being seated at the table, Respondent Oiz wa questioned by te sae
feale agent. Reondent state that te agent aked her questions i both Spaish ad English
in a demading voice; she aked her for identif infration, wher she wa fom, how long
she had ben in te United Statesg ad other questions. 4 Respondent Oi
z
estimated tat the
female ofcer questioned her fr approximately 20 or 30 minutes. Ex. 3 (113) at 2. She
testifed that she did not feel she had a rgt to remain silent beaue of the agent s demading
tone of voice. She maint aine tat te aget did not ak her ay questions until aer seahing
her backpack witout penission. Te agent did not tell her she had a rgt to a atorey or t
rfse to aswe. Reondent Oiz also stated that she ted to stand up sevel tme, but the
female agent always gabbed" her ad guided her wher she needed t go. On dirct and cros
exaination, Resondent Oz did not testif whether she would have aswerd the agent's
quetion but fr te pre-interiew sech of her blonging.
Respondent Oz testfed tat, at some pint, she ake te female agent if she could u
a retroom. Te agent esconed her to the restroom, but she did not Je her clos the door. een
though the wer no wdows or other doors in the restoom. Aff Respondent Oriz fnshed
using te rstom the aent plaed her in hadcufs and put a sweter over he hads. She led
her dowstairs, out the door of the resaurt, ad into a vehcle tat was paked outside. Te
ofcer did not tell Respondent Or
z
wher they were going, despite her aking. Repondent
Oriz stted that she never asked te femae agent, or any oter agent if she could leave the
rauant. She stated tat she did not feeJ fee to do so because the door we bJoke ad
baus te female agent always mintined physical contct wt he when they moved aoud.
Resondet Oiz testife tt she was trsfer d to a detenton ctr on Sasome
Steet in Sa Frcisco, Califra' On crss-exaination, she tesfe 1at te female agent
who had questione her earlier accompaied her to Sansome Stet. She stated that she wa te
only worker i the vehicle. She etimated tat she ar ived at Saome Steet aund 11 :30 a.m.
4 O cross-exaination, Resndent Oi was aske whether she aswerd te fmale aent's questions
tthrully. Respondent Oriz tesifed that she aed the agent's questionsj however, she eleced not to state
whether he aer wr mhfI, in exerie of her rights under IlFifh Amendment. Te Cour allowed
Repndent Oni2 to execise this rigt.
'
Te Cour notes that all of the El Balazo employees wer taken to te ICE Distct Ofce at 630 Sanome
Stet in San Frncisco, Califoria. Althoug Respondent Oriz rferd to it as such, this facilit is not a "detenton
cntr'; rher is, however, a holding cell on lhe prmises. The Cour will rfer lo tis location as Sasoe Set."
A093-l38-J 13, 114 5
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She ttfe tat no one eplained why she ad the ote workers were ten tee, ad se w
not prvide a attorey. Agents took her picte ad fngerts ad put her in a hoJding cell
wth about 20 othe women whom she recogized a worker fom ote El Balao rtaut.
Exb. 3 (113) at 3. Respondent Ortiz testifed tat she wa eventally ten to a intergaion
rom wher a agent bgan queioning her with the help of a interreter. Id. She sate tat
the agents aske her simila ques tons abut her identity, backroWd, and ridence.
Respondent Oriz aer these questons trthflly. Respondent Oriz ake fr a atorey,
bt the agent respnded that Hthey were the only pople who could help (her.) I [she] did not
cooprte wit tem, they wouJd keep [er] locked up injaH."
Respondent Oriz testifed tJ1at she wa released from Sansome Steet aund eigt or
nine hous afer her iitia detention. She did not reive he bk"ack util she wa rlee;
the agents had held it all day. Respondent Oriz tetifed that, when she receive her backpack,
all of her belongings were sti ll inside except he identifcation car.
O cross-aination, Respondent Oriz stated tt Resndent Solis wa also at te
restauant on te moring of te ICE oprtion. She state that she rmembered seeig
Respondent Soli s in hadcufs a she wa leaving the res1auat, ad she rcaJled that he h a
ver frightened exprssion on his face. She also mantaine tat no agents eer aked her abut
the ower of te EJ Baaz rsaWl ts. In rsponse to questons posed by the OHS, Resndent
Oniz denied telling te agents tht she had purhad a social securt cd fr $50.00; that Mr.
Sadoval hd promised he a job if. she ce to te Unite States; or tt M. Sadoval ha
instcted her to destoy the origna socia secuty cd (. 4) ( J 13 ).
2. Tesimony of Ofc Ka S
Ofcr Szto testife on March 29, 2011. On te date of her testimony, Ofcr Szto
was a Superisr Detenton ad Deportion Ofcer fr ICE. She had worke at ICE since
2006, and pror to that she wa an ofce fr Customs ad Border Protection ('CBP"). She
atended te Federal Lw Enforement Tring Center academy in 2000, dung which she
received tee mont' tainng in imigation law and one month of Spaish-laguge
instrction. Since bcoming an ICE ofcer she ha received peodic tnng in vaous ises
tt ase in her work including te Four Aendment. Ofcer Szo paicipate in te ICE
oprton at the Haigt Stet El Balao on May 2, 2008, but she testife tat she dd not
spcifcally recaJJ may of the detls of that day, ad much of he testimony wa based upon
eent tht uly hpdug the coue of a oprtion. She also sed tat she wa
tsfered to a difernt ofce i November 2008, ad since that tie she ha not paicipted i
ay other workplace oprtions.
In May 2008, Ofce Szto worked primaly in Sacrento, but she wa aked to asist
te Sa Frncisco Homelad Secuty Oprations {"HSI") tea in their exection of te El
Baln seah warat. She frt stated that she wa not involved in ay of the plan ing sge of
the operation, and she ony attended one meeting on te moing of te operation to b brefed
A093138113, 114 6
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befre executing it. However, on cross-exaination, she sated tat she atende a brefng a day
or to bfr te opertion. She rlle that may agents fr met a a lare group bfr
spliting into smaler gups by loction. She did not rmemb te specifc detals of tis
metig.
Ofcer Szto tesife that her rle in te opertion wo merly t asis the p
ofcers by fllig out Fons 1-21 3, conducting interiews, helpin to secu the aa fr ofcer
saet, ad peroring additiona tasks a nee. She did not reie te wr t pror to te
oprtion but she testifed tat she ncalled the Tea Leader showing the te a packet which
he told ther was te wart duing the moring meting. She stated that te war t was a
crmal seah wr t which autoriz te agent to search
fr evidenc at the rurat. She
understood that the wart was issued in connection wt a crmi investigaton into the
owers of the El Balazo rstauant chain, who were susped of hirng ad haborng
udocuented worker. She did not ral if the warnt itelf was displayed aywhere in te
restaurt durng te operation.
Ofcer Szto std that she wa an ed that day, but she did not rall ever dwng he
weapons She sated that it is not unusua fr agents to be aed when executg a seach wanat
due to ofcr sfe concs. She testifed that she enterd the resturant towad the end of te
goup of agentg ad she chacerizd te entr as "sfe" ad not chaotic." She sted tat she
did not rcall seeig or hearng ay impoper actions on te p of ay of the ICE agnts, such a
yelling or screaing. She statd that she has a duty to ror ay such acions tat s obseres.
When she entered, agents wer alrdy o the side of the ntaut nea the cahier, ad she
moved past them towa the back of te resturt; She testied that, in her Wdertading, te
exisence of a ciminal seach wr t autorzed her to gater everone prsent at te site into a
central area, to detin them, ad to queston tem rgading teir sts in the United State. She
stted tat these action ae jutifed by the intests in ofcer safet ad prsering evidec.
For exapleg she explaine that te ofcrs rmoved those pren4 who app to be
employe_ fm the kitchen aa bcause kitchens fuently contain may itms that ca b
used a weapns.
Ofc Szeto confre tat ICE agent bloked te rtaurt dor afr te opeton
bega. She testifed tat tey did tis to prvent occupants of the site fm levng. Again, she
stte that ths action w justifed bcaus it prvented occupats fm leavg wit evdence or
cuing ha to te agents by rting or sending oters to te site. She citd te pssibilit of
gag afliation a one possible reason to keep all of te occupats of the rut pesent
dung the opertion.
Ofcer Szetos testimony regading her interactions wit Respndent Orz wa aded by
A093138l l3, 1 14 7
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sever photogaphs ten on te day of the rid. See Exbs. 9- 1 3(1 1 3) Exh. 1 4 (1 14). 6 She
stted t she did not quetion Repndent Oriz alone; fr at leat pa of the inteiew, she wa
asisted by aoter agent who spoke Spansh. She tesifed tt the fr photogph depicted her
guidig Respondet Oz fm te kitchen aa towa the dng rom. Bxh. 14 (1 1 4) at 1 .
Ofcer Szeto denie tha she would generally "grab" or push a pron to move te, bu stte
that she would instd "gently gide" the pson tow the cta aa She stte tat she w
doing this in the photogph. Id She also noted that a platic bag, presuably containing
Respndent Oriz's belongngs, opp in Exhibit 1 4 ( J 1 4} at 3 and 4, altough it doe not
appa to be present in Exhibit 1 4 (J 1 4) at 2. From tis sere of photogaphs, Ofcer Szeto
testife that she encunted Repondent Orz in the kitchen ad escored he uptais to a table,
where she comenced questioning Respondent Oriz to complete te scratch 1-213. Te, afer
establishing alienage, she rteved Respondent Oz's backpack fom te ktchen, sehe it
ad inventored its contents on te scratch 1-21 3.
Ofcer Szeto was show a copy ofa hadwten "scratch I-2 1 3," whch she conrmed
se wote whle interiewing Repondent Ortiz. Exh. 7 (fr identifcation) (1 1 3}. She note tat
he initials appard on the lef side of the for. Id She explained that she aked fr all of the
i nfration on the scrtch 1-21 3. including several questions abu Resondent Oriz' s
employent histor at El BaJazo, which she stated she asked because of its rlevace to the
crmina investigation. She also explained that the moneta cal culations that appe on the Jef
side of the scratch 1-21 3 a a rcord of the money that Repndent Oriz had in her backpack
when i was seahed. She stted that she tically cllets this inoration to enu tat no
peronal blongings a lost when items ae held dung an ar est. She tesifed that she did not
6 Time-tmped verions oflt photogh wer \ater sblnd ad make as Eibit 14 (1 14). T
photogphs wer 1aken in the following orde.: Exibit 9 (1 1 3) (1 0:37:48 a.m.); Eibit 1 1 (l 1 3) (1 0:47: 1 2 a.m.);
Exibit 1 0 (1 1 3) (1 I : 31 :38 a.m.); EAibil 1 3 (1 1 3) (1 1 :32: 1 0 a.m.); Exibit 12 ( 1 1 3) (1 1 :32:34 a.m.). T
phoogph depict the fllowing:
E 14 ( 1 14) at 1 : View fom the kiten towd le back of the retuant. A female aent ad reale employe
ar walking side by side with their b1cks to the caer, and the agent's had is on the employee's bak. Aothe
agent 1ppa it rigt side of the photogph.
Ex. 1 4 ( 1 14) at 2: View fom te kitche into le dining aa. A female employee ad female asent a sete at a
table nxt i a window. bt g\m fom te sn blo vision of an objes that may apa on te tle. Te
employee Is weaing an apron.
E. 14 (1 1 4) at 3: Sae view a Ex. 1 4 at 2. Only the female employe ir sted at the table, and a platic bag 15
siting on the table in font of her.
E. 14 ( 1 1 4) at 4: View of te dining area fom the side. Te female employee is seated at pruably the se
table with le bag on the tble. A ma wng a hat ad a white shir is sated at difrnt ablo wi his back 10
the camer. A thir lble appear to have at lest one apron on it.
Ex. 14 ( 1 1 4) at S:View of exit door in lhe back of the dining aa. Te female employee appea in te botom
lef of the photogph wich he as erosed.
A03-1381 13, 114 g
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sig te scrtch 1-213 bause it is not a ofcial docuent ad she dos not noraly sg
scrtch I-2 l 3s when she complete them.
Ofcer Szeto stated that she would not have aked Rendent Orz t rteve her
penal belonging to b she untl afer she had detenined aienage ad pla
Rendent Oiz under ar st. She testifed that she did tat in this ca; aer akg
Resondent Oriz te 1-21 3 questions ad estblishing alienage, OfcC Szto ake he wher
her backack wa. Together, they walked to the cashier aea, rteved the bag, ad retured to
the table where they had been seate prevouly. She tesfed tt, when a subject h a
backpack or oter bag, she usually ak hm or her wheter tere are weapns i te bag ad she
instcts hm or her not to open the bag. She then typically aks fr penission to look in te
bag, ad usually the subject gives her pission to do so. She stated tat she tically
comuicates with non-English-speaking subject through a combination of her limited Spaish
ad had gestrs.
Ofcer Szto stated tat she does not nonally check a subject's identifcation befr
questionng, ad she did not recal if she did so in ts case. She stted that she would remembr
if Repondent Orz had resised in ay way, including rsing to let her look in her purse,
because she wou1d have not such a unique event in the scratch 1-21 3. She also testifed tat
she woud not rely on inoration fud on a identifcation cad to estblish aienage or
complete a fr 1-21 3. On cross-exaintion, Ofcer Szeto wa aked about several
abbreviations in her scratch 1-2 1 3 that llso appea on Respondent Oriz's Mexica identifcation
cas. See Ex. 5 (1 1 3). She was not able to recall te abbreviation fr Chihuahua, Mexico, but
she was able to stte two alterat abbrviations fr Hidalgo, Mexico. Exh. 7 (fr identifction)
( 1 1 3}; Exh. 2 (fr identfcation} ( 1 1 3).
Ofcer Szeto testifed tt she did not accompany Respondent Ortiz to Sasome Steet.
She stated that, ofe she fnshed questioning Respndent Oriz, she conduced a pat-dow
seach of Respndent Oz. Ten one of te agents told her tat they did not nee her assistc
ayor, so she lef. She sated that she blieved tis happned aud lunchtime. bause she
rememberd going to get lunch afer she lef the rsaurt.
Ofcer Szto was show a copy of te fra 1-213 regading Resondent Oriz. See
E. 2 (fr identfction} (1 1 3). She sated that she did not create this fn, ad noted a
discrepac be tat fn ad the scratch 1-21 3 ta she flled out: while te sch 1-21 3
states that Repndent Orz is mlled, te fnal 1 213 states tat she is not.
O cross-examiation, Ofcer Szeto w akd aut the autorty conere upon her b
the wart. She ackowledged tt the wart ony authorzed the agents to sah the
pmises. ad not ay secifc peron. However, she st that he authorit to detain the
occupats of the rsauat inered fm the interests in protecting ofcer safet ad prserig
evidence. She aso sted her undertding that she had reasonable suspicion to question
Respondent Oiz about her st in te Und States because of two facts: f te war at
A093-138-113, 1 1 4 9
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stated tat the restuat wa suspcted of hirng ad haborng undocumente worke; ad
seond, Resndet Oriz appear to b a employee of the restaut due to her uifn.
3. Bbutl Tesiony o Respondet Oriz
Respndent Oiz testifed befy in rbutal on June 17, 201 1 . She testifed that she
reogized Ofce Szto a te agent who quesioned her on May 2, 2008.
Respondent Oriz stated tat te photogrph at Ehbit 1 4 ( 11 4) at 1 , in which she ad
Ofcer Szeto appear in the kitchen. was taen ealy in the operation befre Ofcer Szeto
questioned Respondent Oriz. She stated that. when the employees wer told to place teir
belongings on a table, Respondent Oriz told Ofcer Szeto that her bag wa i te kthen, and
together they rerieved it. She stated tat Ofcer Szeto did not allow her to carte bag bak t
the ktchen.
Resondent Oiz as descrb the photogaph at Exhibit 1 4 ( 1 14) at 3. She state tat
this photograph wa taen aer she ad Ofcer Szeto rtieve her backack fom te ktchen;
Ofce Szeo bega to seh te backpack without penission, and dung tis seach she fwd
a identification cad. Respondent Oriz testifed tat, seeing te identifcation cad out on te
table she did not feel fee to refse to answer Ofcer Szto's qusions. She sted that, hd
Ofcer Szto not seached her bag, she "may have,, felt fee to reman silent during queoning.
She sated that Offcer Szto then placd her belongings in te platic bag that appa in severl
of the photographs. Id at 3, 4. She aJso stated tat te bag is also on the table in Exibit 1 4
( 1 1 4) at 2, but i t i s not visible becuse of te sunlight. She tesifed that se rmoved he apron
at some pint, an tat a agent placd te apron in the sae pla as he belongings.
C. Tetmony and Declartion of Repondent Solis and Ofcer Bare
1 . Testiony ofRent Solis
Repndent Solis testifed in suppor of hs declation on Octobr 1 2. 201 0. His
declaation appa at Exibit 5 ( 1 1 4 ).

Respndent Solis testifed that he remembred the event of May 2, 208, clealy. He
arived at te Hagt Steet El Baao aund 7:00 a.m., a it wa his dut to prpa the
restt fr the day's business. He ralled tt fur eploye, including himself arve at
7:00 1.m. , ad several oter arived aud 9:00 a.m. He testied that he was storng
merchadis dowirs when ICE agents entered te restaurat at aund l 0:30 a.m.
Respndent Solis testifed tat be realized the agents had entered when they shouted at the
workers to stop working; one agent approached him fom behind, shouted at him to stop
working, ad 0gabbed" him on te back. He testifed that te agents did not identif temselves
a ICE agents, but he guessed tat tey wer becaue of their unifns. He did not kow exatly
what "ICE" meat, but he kew that it ha someting to do wt inigtion.
A093-138-113, 114 1 0
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Te age told Resndet Solis ad te other worker to go ups. Reondent Solis
noticed that, while some agent wer gding the worker, others had stationed themslves at the
ruat's exits. He stated tat te agent spoke in loud voices ad order the worker to sit
dow in the dining room, rmove teir prsonal blongings fm their pocket, ad pla them
on a centl table.' He ralled that one of th agents ake hm for the keys to te ruat.
Each of the workers ws instrcted to sit at a separate table. Respondent Solis place hs wllet
ad cell phone on te cent table. He testife that he did not fel that he could deny te agents
perission to searh his wallet becaue they did not ask fr perission but merely shouted
intrctions at him and te other workers. On cross-examinationi Respondent Solis testifed tht
he was standing up when he prduced his waJJet, ad he remained stading fr a little while, ad
then he eventually sa down. He maintai ned that no one spoke to him diectly util he sa dow
at a tble.
Respndet SoJis tetifed that, arund J J :00 a.m., a male agent sat dow wt him ad
bega aking him questions about bis identit, faily, ad backgud. He stte tat the aget
identife him by calling his name, ad fr this reaon he bUeved that the agent had alrdy
seahed his wallet when he bega questioning. Respondent Solis stated that he had not told ay
of th agents his nae up uti l tat tme. However, he admited that he did not actally see ay
agent s
p
cifcaly seah his wallet bause he was looking aound te rsuat ad not diy
at the table. Te frt agent did not speak Spanish, but later aother agent who did spa Spaish
joine hm. The frt agent asked him quetions in EngJish, only some of which he undertood.
Neiter of te agents told him that he had a rgt to refse to aer teir quesons or to sp to
a anomey. Respondent Solis tstfed tt he never asked the agents if he could leave or to
speak to a attomey. He denied that ay agent ever asked hi fr pn ission to look in hs
walet, ad he deied that te agent looked in his wallet afer he had told h his cout of
origin.
Respndet Solis tesfed that he blieved a agent removed a identifcion cd fom
bis walet duing the sech. He sae tat he did not rmember if tis cad contne his place
of birh. He also ackowledged tat he generally maintains a fendly and jovial demeaor. He
ste ta he felt aid ad sou on te moring of the ICE operton, bt he adite tat he
may have smiled at sme pint durng te moring.
ReSondent Solis tstife tat, aund noon, two or teagents took hm to te lower
level of te rstaut along wth two other worker. Altough he had not been able to se
outside f te table where he ha ben seated, when he wa led to te lower level he wa able
to se two or tecars paked outside te retauat. Te agents hadcufed te workers,
placing their hads bhind teir backs, and put them in vehcles which took tem to Sasome
7 O direct examination, Respndent stated that the agent frt orded the employees to sit and ten sold
tem to place their belongings on the cntal table. However, In cross-examination and in his declaation, he stted
that the agent frt ordered the employee to place their belonging on the table, and only afer tat insuced the
employees lo sit dow. Ex. 5 ( 1 1 4) at 2. O cross-examination, he srted tat ho rmained stading until a aet
called his name, at which point he st dow.
A093-138113, 114 1 1
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Stet. He asked te agnt severJ questons dtng te rde to Sasome Ste t bu no one
aswered him. Respndent Solis remained at Saome Stre t until aut 8:00 p.m., when he ws
taen to te ISA5 buildng. He testfed tat he lef tat building aud 9:00 or 9:30.
Orgnlly, Reondent Solis tetifed that he has not reted to Sasme Ste t sinc the
day of hs ar st. However, on crss-exaination he stated tat he rte to Sasome Stre t on
May 21 , 208, acompaied by h atrey, Frcisco Uge, ad held a meting wt ICE
agents Res
p
ondent Solis did not disclose anyhng that he discused dung tis meting.
O crossxamination, Resndent Solis was ake if he kows a ma naed Brce
Smith who work at a hardwa stor near the Haigt Street El Bala. He st that he did not
rmember ever meting someone by that nae.
2. Tesmony of Agnt Michael Ba
Agent Michael Bage tsie on Jue 1 7. 201 1 . At the time of his tesimony, Agent
Bage wa a Special Agent fr ICE-HSI in Sacrmento, Califoria. He hd worked in that
capacity fr seven yea. Agent Bage atended te Federl Law Enfrement Training Progam
ademy when he bame a ICE agent, ad he has had priodic tainings since ten. He
estimated tat he had executed approximately 1 00 criminal seah wat dung his cae r, ad
estimated that aud SO of these took place pror to the El Bala opertion. He stted tha he
kows what a fcially valid sarch war ant looks like.
Agent Bage testifed that he understood there wa a war at autorizing te seh on
May 2, 2008e He stated that_ later, he leed fom a aicle disibuted to him at work that the
El Bla owers wer arge in Sa Frcisc fr t evasion ad hirng illega aliens. See
Ex. 7( l 14}. Agent Bage testifed that, typically, bfr a war t's execution, the agent
exeuting it wouJd pass it ald to view individually, but he stated that he ha no indeendent
memor of whether that actualy happened
p
ror to the El Balazo operaion. On coss
exaination, Agent Bare wa questioned extensively about te exent of his memor of te El
Ba1azo oprtion. Agent Bae's aswer to these questions reveae that he ha vague ad
imperet memores of te days events. For exaple he did not confn or deny if a agent
made any an ouncments to te eployees at ay time dung te sah; he did not rmembr if
the employee wer aked to pJac their ponal belonging on a table; ad he could not stat
whether agents ged the doors of te rstaut durng the oprtion.
Agent Bae testifed tat, i his udeding the wr t auorz the agents to
detain occupats of the rstaurat while seahing it, bot fr ofcer saet ad to prese
evidence. He explained that it would b improper to release occupat fm te sah site ae
securing it, becaus he would wat to kow te occupants' rlationsip to te business to
detenine if they may have usefl infnation rlated to te investigation. Agent Bage admited
8 Te Coun notes tt ''ISAP snd fr Intensive Superision Appce Pgm.
A03-138-113, 114 12
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tt when a ocupant of a seh site i deted. he o she is not fe to leave, but tat prn
i s also not ''uder ar st.
,
. He stated that he udertood te wr at auhoriz te seh of th
premses fr dowets sifcly, ad be stated that he did not believe ay of te business
records would nonelly b fud on the perons of restaurt employee. He diferntatd hs
autrt to seh fr te documetsg which deved fm t wr t itelf, fm hs authort
to seach employes' perons
.
which derve fom te policy concers discus aove.
Agent Bae testifed tat, on te day of te oprtion, he frt went to Sasome Steet
wher he was asigne a c. He rode a a passenger i n a Spor Utility Vehicle fom Sasome
Street to the resturat but he did not rcall where the driver parked. He rcale extng te c
ad enterng the resut thug te font door in a goup of about l 0 agentss He
chncterzed the agents entr into the restaurat a "low key," ad not fa. Agent Barge
testifed that his asigent was to wal towa the back of the rsaut and lead ocupats
fom ther towad te font of the retauat. He testifed that he rcalled hearng agets saying
thing l ike "police
.
ad ''seh war t" in what he descbd a "authortative" voices, but he
did not testif that the agents we shoutng. Agent Bage testifed that he did not dw his
weapon at ay time durng the operation. He also testifed that he recalle walking up a set of
stair wt Agent Vauga, discoverng several occupats, ad itructing them to go inide te
rstaut
Agent Bage rcognizd Resondent Solis a the individual whom he questione at te
Haigt SteEl Bal8 on May 2, 2008. He stated that he frt encuntere Respondent Solis
when he discoverd that Resondent Solis spoke a bit of English; because Agent Bage does not
spa Spaish, he wat to interiew someone who spke English. He state tat he bg
speaking wit Respondent Solis while they wre stding up in t dining a ad that dwng
this conveation, Respondent SoJis admitted that he was prnt in the United Sttes wtut
authoriztion ad smiledv Agent Bare stated tat he had raonable supicion to question
Respndent Solis about his iUl igton st buse h kew ta Respndet Solis wa a
employee of a business bing invesigate fr the illegal hirng ad haborng of udocentd
woder. Agent Bage testifed tt ae heang that Resndent Solis did not have
autorztion t be in the Unte States, he ha probable cause to arest Repondet Solis. He
then led Repndent Solis to a neaby table, wher he queoned h mor torugly. Agent
Bage estmate tat ths ita converstion lae fr ony a few minutes. Agent Bae did not
rall if any agents made ay 11oucements to the goup afer the employees had begather
in the dining room. He testifed that he would not have continued speing to Respondent Solis
had he ben aw that mouncements were being made.
Agent Bage wa prsente wth a scrtch 1-213. which he confre is the scrtch 1-21 3
that he parially completed rgarding Respondent Solis. Exh. 6 (fr identifcation) (1 1 4). He
wa also shown another docuent. which he explained wa a photocopy of the scratch 1-21 3 in
which the porions that he completed wer higligted in pin in. Exh. 8 (fr identifcaton)
(1 14). Agent Bae explained tha1 he wa called by a superisor ad had to leave the site befr
completing the inteiew, s a dif ent agent took over completing the scrtch 1-213. Agent
A093138U3, 114 13
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Bage stted tat be asued tis oter agent w Aget Vauga, bcause hs nae appea on
the fna 1-213. See Exh. 2 (fr identifcation) (1 14). Agent Bage did not kow how ay of
the employes wer tsferd from te rstaWlt to Sasome Stebcause of his ealy
deprre.
Agent Bage ws also show a Detention Fonield Iteriew Fon" ("F' tat he
cnfre he completed at the Haght Steet location.' Exh. 9 (fr identifcation) (l 1 4). He fr
tetifed tt he completed te FIF imediately afer sining dow wth Respndent Solis at te
table in the dining ar. Lter, he amitted that he hs no specifc memor of completig te
fn, but stted tt noraly he woud complete a FJF fist ad ten would more thorougy
complete the sctch 1-21 3 using infonation fom the subject ad fm any identifcation
document he h ben prvided. He wa uable to explan why te wor ''Yucata," wten in
te a designat fr .. Plae of Birh," appm i pantese. See id He testifed tat he
cirled the word "Beted" on the FF. Id.
Aget Bage ste ta he aked Respondent Solis fr identifcation imediately ae
deterining tat he could communicate with him in English. He state tt it is his pactice to
always ask fr identifcation frt to avoid confsion if the subject of an interiew gives him a
false nae. He sted that he somehow obtaine Respndent Solis's wllet ad ake pnision
to look inside it, but he did not rcall how he cae to pssess the wallet. He stated tht he kew
he aked penission to look inide te wallet bcause he note a much on te FIF; he also state
that he ''wouldn't look in someone's wal l et without geting consent," even if a warnt
rechnicaJly authorzed him to do so. He stated that he had no doubt tat Respondent Solis gave
hm conent to seach te walet, ad stated that he believed te walJet searh would have been
iJlegal had he not obtained consnt. Agent Bage also testifed tat he believed be wa only at
te rstaut fr apprximately 30 minutes befr big called to his new asigment.
3. Rebut Testiony of Respndent Solis
Respndent Solis wa aed to explain his rcollecion of how hs wallet wa seahed on
te day of te El Bala opron. He reitete tat he realle bing moved fom te back of
te restaurt to the dining ara, ad he sated that an agent, probably not Agent Bage, told hi
to put his blongings on a table wt oter personal ites of te employe. He tesfe that
Agent Bage wa te agent who then sehed his wallet, but he admited that he did not se
Agent Bage actly lokig toug te wallet; his belief tat Agent Bage shed te walet
aose when Agent Bage called his nae ad bga questoning him. He also testife tt Agent
Bage had hs identifction cd i his had when he caUe Respndent Solis's ne.
Respondent Solis tesfed unequivocally that Agent Barge did not ask him fr penission to Jook
inside his walet.
9 Agent Bae testifed that, while h Is indepndenl memor of the event of May 2, 2008, wa vague, he
used the FJF to rf his memor. He staed that, pror to his testimony, he discus ed the FF brief w counsel
fr the OHS, and he also reclled receiving ahe FIF in an emai l fm OHS counsel severl months ealier.
A093-l381J3, U4 14
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"

Resondet Solis teifed tha he did not remeb whethe he wa siting or sding
when Agent Bare bga questioning him. He sttd tat he was seated at a table for at let pa
of the time he w being quetioned.
A. Admissibiit of Warnt
III. ANALYSIS
I reachng a decision in tis cae, te Cou may cnsider evidence tat is "probatve ad
its use fdaently fair, s a not to deprive a alien of due prcess of law." Maner of
Grialva, 19 I&N Dec. 71 3, 71 9 (BlA 1988) Matter ofPonce-Hernandez 22 l&N De. 784, 785
(BI 1 999); see also Lopez-Chaez v. INS, 259 F.3d 1 1 76, 1 1 8 1 (9 Cir. 2001). Wer
evidence is sbmited afer a fig deaine, the Cour still may consider it if the par explains
te raons fr te late fing and show "good cause fr acceptance of the fling." Im. Cou
Prac. Maul 3. l (), (d)(ii) - (iii).
Her, the DHS submited a cop of a crmnal sech war at fr the Haigt Ste t El
Balao restaurat on September 2, 201 0. Exh. 8 ( 1 1 3 ); Exh. 3 ( t I 4). Te war at, date Apl
28, 2008. autorizs te sh of the Haght Stet El Bala rut on or bfr May 7,
2008. Id It authorz te seah ad seiz of employee ad applicat peroMel rors,
payll rcords, imigtion fns rlatd to the work eligibility of employees, corespnece
rlate to employe wes, ad tax rcords, aong oter tings. Repndent objected to te
admission of te Wat bae on lack of authetication ad utimeliness. Rep'ts' Opp. t
DHS's Submission of Evid. (Sep. 20, 201 0).
Te Cour fnds that the wrt is prbative, a it rlates diectly to whether JCE's seh
of the El Baao resaurt ad asociated detention of Respondents wa lawl. Furherore,
the Cour fnds that inrduction of the war nt is fndamentally fair: the war t wa submi te
while the DHS still car ied it buden of justifing te man er in which it obtned the evidence
in the l-2 l 3s as ruired uder Barcenas. 1 9 l&N Dec. at 61 1 . Te OHS consisenty
rprsnted that, prior to it submi ssion in ts Court, te w.rt was uder sal wt te Distct
Cou duing the frt to ye of Respndent's predings, ad te Cou i satisfie that the
DHS acte diligently to obtain the war ant. Tu, the Cou does not fnd te DHS's delay in
providing the war at to b uonable. Te Cour fd tht admission of te wr t is
prbative ad fdentaly fair, ad te DHS ha established good cuse fr acptace of te
late fling. Terfore, the Cu adts te war t into evidence in te inst proceedig. Exh.
8 {1 1 3); Exh. 3 (1 1 4).
B. Applicable Law
Jn imigrtion proceeing, evidence is generally admissible if it is prbtive ad its use
is fundaentlly fair. Matter ofPonce-Herandez, 22 l&N Dec. 784, 785 (BIA 1 999). Te
inadmissibilit of eidence that underines fndaenta faress stems from te Fif
A093-13S.113, 114 1 5
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Aendment due process gute that oprates in rmova prceedings. See, e.g., Bridges v.
Wion, 326 U.S. 135, 1 52-53 ( 1 945); US. ex rel Accardi v. Shaughnessy, 347 U.S. 260, 267-68
( J 954). Wile te eclusionQ rle is not per se applicable to alegatons of Fif Aedment
volatons in moval pcengs evidence is nevereless inaissible if it wa obtned in
violation of te alien's prvlege an self-incrmination. or if the statmet w ivoluta or
coered. See Mater ofSndoval. 1 7 I&N De. 70, 83 n.23 (I 1 979); Matter o/Garcia, 1 7
l&N Dec. 31 9. 321 (BI 1 980). Te Board of Imigtion Appeals eBoad'') ha held tat
evidence obtane by coion or other activit which violates the due process clause of te Fi
Amendment may b excluded. See Mauer ofTuro, 1 1 I&N Dec. 340, 343 (IA 1 980) (cittons
omited); Garcia, 1 7 l&N D. at 32 1 . A statement may also be excluded Wder te Fif
Aendment if the circusces suruding the interogation we fndaently unfair. See
Toro, 1 7 I&N De. at 343.
A respondent cam1ot genelly suppress evdence asered to b pu in volation of
te Fouh Aendment because of the civil nature ofremova procedings. /NSv. Lopez
Mendoza, 468 U.S. 1 032 ( 1 984) (fnding the Fourh Amendment exclusiona rle inapplicle
to depration poeeings). Howeer, te Supreme Cour lef open te possibilit tat te
exclusiona rle migt still apply i cases involving .. eggiou violations of Fou
Aendent or other liberies that might trasgess notions of fdamenta fairess ad
udenine the prbative vaue of te evidence obtined." Id. at 1 050-51 . In applyg tis
exception, the Ninth Ciuit b deelopd a tvo-pt tes t detenine when evidence shouJd b
suppressed in a immigation proceding. Ohorhaghe v. IN, 38 F.3d 488, 493 (9t Cir. 1 994).
Te Cour frst must detenine wheter the govenent violated te Fouh Aendent Id. If
it did, then the Cou mus deterine whether the agents comite te violation delibertely or
by conduct a raonable ofc should have kow would violate the Constitution. Id.
We a sh is bas on a fcialy valid serch wm t, "a defedat chaleging a
sach wU los if either: ( I ) te war t issued wa suppre by prbable cus; or (2) i wa
not. but the ofcer executing it reonably blieved tt it w.'' Pearson v. Calahan. 129 S.Ct.
808, 821 (2009) {citing United States \. Leon. 468 U.S. 897 (1 984)). Jn Michigan v. Smers,
te Suprme Cou noted that the presence of a wr ant asures that a neutl magistte ha
detenine that prbable cause exis to seach prmises. 452 U.S. 692, 703 ( 1 981); see also
Muehler v. Mena, 54 U.S. 93, 98 (205). ln Summers, the Cour rle tat . a wart to seah
fr cntband funded on prbable cus implicitly cares wt it te limited authort to detin
te occupats of te premises whle a propr searh is conducted." Smmers, 452 U.S. at 705.
Te Summers Cour rane that detention wa war ed due to factor such as "the legtimae
law enforement interst in preventing fight in the event that incrmiatng evdenc is fud,"
a well as ofcer safety and facilitation of"the orderly completion of te seah." Id at 702.
Te Supre Cou elaborted on the Summers holdig in Muehler. 54 U.S. 93. ln that
case. police ofcer obtaine a war t to seah Menas residence fr weapons ad evidence of
gag memberhip. Id at 9596. Me wa aleep in be, ad ofcers hadcufed her at
guoint. Id. at 96. Imigion ad Nataizion Serice ofce, who wee workng wth
A093138113, 114 1 6
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feer agent in te ivestigation, questione Mena about her aienae ad imgtion st
while she w detned i the gage. Id. Te Cou fud that Menas detention w "laiuy
pissible" uder Smmers bcuse tere wa a war t to sah te premises, a Mena w
on te prmises. Id at 98. Te Cou explaine tat .. [i]nerent in Smers' autorztion to
detain an ocupat of the plac to be seahed is te autort to us ronable fre to
efectute the detention.'' Id at 98-99. While the ofcer had detined Mena fr sever hous in
hadcufs, the Cou fud the frce ronable baed on the dger to te ofce ad level of
contrabd suspected a the location. Id at 99. In addition, te Muehler Cou fud that it wa
penissible fr the ofces to question Mena regadi ng her im igation stats dung the seh
of her home. Id. at 100-0 I . The Cou reeted a "faut" the Circuit Cour's fnding tat te
"ofcrs wr ruir to have independent reasonable suspicion in orer to question Mena
concerng her imgtion stats becuse te questionng constute a discrte Fouh
Amendment event." Id It noted
,
"[E]ven when ofcer have no bais fr supectig a picula
individual, they may generally a quesions of tat individual; ak to exaine te individual 's
identifcation; ad reques cnsent to seah his or her luggge.,
,
Id. at 101 l citng Forida v.
Bostick SOI U.S. 429, 434-35 ( 1 991 )).
In Dson v. Cit ofSeattle, the Nint Ciruit applied the Suprme Cou's reasonng to
fnd that the detetion of rsidnt of a boading house wa raonable durng a public heth
inpection executed pusut to a war at. 435 F.3d 1 054 (9 Cir. 2006). Dng te
ispton, te platifs wer kept fr approximately to hou in a secu ro m. Id. at l 059.
Te Nint Ciruit notd tat the detention of ocupants of a building while ofcer execute a
sh wr t is pn isible, so long as te length of detention is rsonable. Id. at 1065. In
fnding that the detenton wa reaonable, the cour loked to te te rtionales aricuate b
the Supme Cour in Smmers: (I) pvention of ssct fom feing; (2) miimizng te rsk
ofhanto the ofcer or occupat; ad (3) expditing the sech. Id at J 066. Te cou
rjeted the plantif' auet that Mueh/er ad Summers apply ony to seahe fr
contabad. rthe ta seches for evidece. Id. In addition, the cou fud tat ofcer se
asit wth te heth conditions of the bulding, te rsk of the tenats feeing ad tus
rnderg temselves unavailable fr questioning as wtnesses, and the tenats potental
impairent of the seah all jusfed te ofcers' detention of t tenants. Id at 1 066-67.
Regaing te Fif Aedent. the Nint Circuit ha cncluded t te aalysis of
whether a statement wa made volutly is 1'makely difernt11 in civil preeings tha i
crminal tas. Cueva-Ortega l'. IS, 588 F.2d 1 274, 1 278 (9 Cir. 1 979). I Cuevas-Otega,
it elaborted:
[S]ince it is the alien' s burden to sow lawul entr, since he mut ase non
incrminating question. since his silence may be used againt him, ad since his
statements a admissible despite lack of counsel, it is mor likely tha not that
the alien will fely aswer the goverent agent's quesions. Tu, where there
is nothing in the recor indicating that te alien's statement was induced by
coerion, dus or impropr action on the pr of the immigtion ofcer, ad
A093-J38-J 13, 1 14 1 7
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wher the ptitoner intoduce no such evidence, the ba aseion that a
statement is involunta is insufcient.
Id at 1277-78 (inter citton omitted). Coerion ad duss my b demoned b a
showing tht the stteet w obtine trough physicl abus, hour of intergatio, dea of
food or dn, tats or promis, or interernce wt te rndent's atempt to eeise hs
rgts. See Matter ofRamirez-Sanchez, 17 l&N De. 503, 506 (BIA 1 980). In additiong the
Boa has fud tht a rspndents admissions wer involt when he w led to believe tat
his rtur to Mexico wa inevitable, he was detained without any explaation of why he was in
custody, he could not comunicate wt his atoreyg ad al of his atempts to cntct hs
attorey were actively interer wth by the immigation ofcer iterogating h. See Gacia,
1 7 l&N De. at 320-21 .
In addition to sering a a dirt rmedy fr constitutional violaions, supprssion may
also be appropriate where agenc regulations a violatedv Te violation of a agenc reglation
ca cmpromise the Fifh Aendment's guartee offdamentJ fairess ad udere the
respondents due process rgts. Howeve, tere is "no rigid rle . . unde which ever violation
of a agency rgulator requirement results in . s the exclusion of evidenc fom administve
proceeding." Maller ofGarcia-Flores, 17 l&N De. 325, 327 (BIA 1980). To eclude
evidence base on ofcers' noncompliace with DHS rglations, a alien mu meet a heav
buen of prvng tat: (1 ) the relaton w not adherd to; (2) the rglation w inded t
beneft te alien; and (3) the violation prejudiced the aien's interest in that it af ected te
outcme of te proedigs.10 Gacia-Fores, 1 7 l&N D. at 328-29; see alo United States v.
Calderon-Medina, 591 F.2d 529, 531 {9th Cir. 1 979). Onc the alien esablishes a prima/acie
rgulator violation, the buen shif to te OHS to jusif the manne i which te evidence
ws obtained. Barcena, l 9 I&N Dec. at 61 1 .
B. Credibilit of Witnese
To as ss cribilit. te Cou applies te prvsions of the R I Act of2005. See
IA 240(c)(4)(C). Considering te totalit of te circumstaces ad all rleat factorg a
credibilit fnding may b baed on the demeanor, candor, and rspnvenes of the applic or
wtes ; the inernt plausibilit of te accout; the consistency btween wite ad or
statements (wheneer made, whether or not made uder ot, ad in considertion of the
cirumsaces under which te satement wer made); te interal consistency of each such
sttement; te conistency of such statements wth oter evidence of rr; any inaccucies or
falsehoods in such statementsj or ay othe relevat factor. Id Te RAL I aendents
fher provide tat this Cour may make a credibilit detenination wtout rega to whether a
inconsi stency, inaccurac, or flsehood goes to te hear of te applicats claim. Id. However,
te Coun mus tae it considertion '"the noral limits of hua uderstding ad memor,"
10 A rpondent will nor have ben prejudiced, for example, if evidence supporing a fnding of
rmovnbilit arse prior to the regulator violation. Garcia-Flores, 17 l&N D. at 329.
A093J38U3, U4 1 8
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and ackowlege tat 1'me inonsistencies or lack of rel may b psent i ay c.
Shesh v. Holder. 590 F.3d 1 034. 1 04(9h Ci. 201 0).
Te Cour cfly obsed the timony of al wtesses uder t fator decbd
abve. Each wtess' testimony. stadng aJone, wa generly cle, detle, plausible. ad
mosly cnsistet thugout dirt ad crs-eaination. Bot Resondent' teimony w
laely consistent wit their wte delartions ad with each oter, athoug the Cou did
obre some inconsistencies. See Exh. 3 ( 1 1 3); Ex. S { 1 1 4). Siilarly, Ofcer Szto and
Agent Bage testifed consistntly ad plausibly; however, teir testmony lacked the detl a
specifcit that chaacteriz Respndents' testimony; Bot agents aditte tat tey had limite
indepndent rollection of te event of May 2, 2008, and teir testimony ofen rfenced
tical or usual proceu, rther tha events tt they atally rmember to k place on May
2. 2008.
Ofcer Szto's and Agent Barge's tesimony regaing the opertion difer fom
Respondents acount i several ways. First, Respondents testifed that the ofcer insced
tem to "dup" ther ponal belongings on a table, ad tat the ofcer te seched teir
blongings fr evidence or alienage befre proceeding to question them. Ofce Szo ad
Agent Bage tesifed that tey did not rcll such a seach ting plac. Ofcer Szeto sated tha
she did not searh Respndet Oriz's bag util afer placing her under ar t, ad Agent Bage
maitined that he shed Rendent Solis's walet only ae rceivng consent. Second,
Resondents testifed that te ofcers conducted the operation i what they believe wa an
ueonably frcf maner tey stated that they obseed ofce wit dw wepn, ta
te ofcers yelled ad soke in demading voices, that te ofcrs "grabbed" te employees
when guiding te aound te reaut, and that the ofcer used hadcuf s. In cnt bt
ICE ofcers tesife that te option was "not chaotic but wa cam ad rouine, tat they dd
not rcl seeing ay hadcuf s ud or weapons draw, ad tat tei interions wt
employees wee cordial.
Te Cou note that bt Respndents' account of te alleged pr-interiew sarch wer
no entirely consisent. either inteally or wit teir wte statements. See E. 3 (1 1 3), S
( 1 1 4). Resndent Oiz's declaon sttes, Oe 1CE (agent] ad I went t get my pure,
whch ws lying net to the cah rgiste+ Wen he reted, he stae to rmage toug it"
Exh. 3 ( 1 1 3) at 2. Ti pasge suggest that the agent who rteve and sahe he bakpak
wa a male. Id However, on dirt exaination, Respndent Oz tefed tat a female agent
rtreve ad sehe her backpack, and then the sae agent then questione her. Finally, on
cross-exaination. she stated that two agents, a male ad a female, seached her bag together.
Similarly, Resndent Solis testifed on direct exaination, "Te agents orderd u to sit ad
then ordered us to remove our belongings ad place them on the table." However, according to
his declation ad his testimony on cros-exaination, the agent did not telJ the employes to
sit until aer they had plaed their belongings on the table. Ex. S ( 1 1 4) at 2. On cros
eainntion Respndent SoJis stated tat he did not sit dow until a agent caled his nae afer
prsably seaching his wallet. Give te centalit of t event to Respondent' cla to a
.093-13S113, 114 1 9
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Four Aedment violaion, the Co is concened by teir chaging testimony. Howeve, in
ligt of te length of time tat pasd ben te ICE opetion ad tese preing, ad te
likely stss ad chaos of the opertion itself, the Cou is not satisfed that these inconistencies,
stading alone, rnder Respondents tesimony to be not crdible.
Te doumenta evidence does litle to clarf how te opertion proceeed. Te
photogphs depict Ofcer Szto ad Respndent Oriz at seral moments tugout te
operation: both a show leaving te ktchen wth teir backs faing te cae, ad bt arc
show siting at a tble, pruably whle Ofcer Szeto conducted Respndent Ortiz's 1-21 3
interiew. Ex 1 4 (1 1 4) at 1 -3. Two additional photogphs show Respndent Ori sitng
alone with a plastic bag contining her backpack on te table. Id at 3, 4. Becus it is
impossible to tell fm the frt photograph wheter Ofcer Szto and Respondent O ae
car ing the bag, ther is no photogaphic evidence to prove either tat tey rted to te
kitchen ae questioning to rte the bag, a Ofcer Szo testife, or that the b wa
retieved ad seahe pror to questionng as Repondent Ori statd. Id at I . Similaly, whle
the photographs depict a appantly calm scene, tey do not disprve Respndent Oriz's
acout of te ICE agets' demeanor thugout the oprtion. Finally, te Scratch 1213
completed by Ofcer Szeto does not answer the question of when Respndent Oriz's bag was
sehed. Exh. 7 (fr identfcation) { 1 1 3). Ofcer Szto tesifed that she would have note ay
iregarities in her interiew, such a resistace or a alteration. on te scrtch 1-21 3.
However. witout ay other evidence to crbrate Ofcer Szeto's version of events, the Cou
is not satisfed tat the mer absence of a mention of a sech proves defnitively that no such
seah occured.
Similaly, the FIF ad scrtch 12 I 3 prpaed by Agent Bage do not puade te Cou
to credit Agent Baes verion of events over Reondent Soliss See Exhs. 6, 8, 9 (fr
identiction) (l 14). Te nar tive section of the FlF states "Subje sad he is frm Mec.
Allowe me to lok th [sic) wallet wher I fud a Mexico ID ca. I ake if he ha pp to
be in the U.S. ad he sid no. 1 aked ae you i llegal : he sd yes od smiled." E 9 (fr
identifcation) ( 1 14). Agent Bage confed tat he paed this F, bu conceded tat he was
not cerain of exacty whe he did so. Aget Bae also cncee tht he did not rcall how he
frst obtained Respondent Solis's walle. He maintained that he aked fr penission to sh
the walet, but his testimony leave opn the possibility that somen else searhed it bfr it
cae into his hads. Similaly, te srtch 1-21 3 contain no mention of a printeriew seah,
but this omision, witout mo, does not disprove that such a seah took plac. Es. 6, 8 (fr
identifcation) ( 1 14 ). Te stch 1-21 3 mely shows tat Rendent Solis w interiew by
Agents Bage ad Vaugha; howeerg snc Respndent SoJis does not dispute tat he ased
te aents' questions, the fn dos not corborte Age Bage' s account over Resndent
Solis's. Finally, tat the FI states that Resndent "smiled" when asked if he was preset in te
United States illegally does not prove bow the opation a a whole proceeded. Exh. 9 (fr
identifcation (1 1 4).
The Cou fnds that all witnesses testified crdibly under the sadas set fr in the
A093l38l 13, 114 20
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RA ID Act. See IA 240(c){4)C). Te Cou did not obsre sigifct inconistencie or
implausibilities in te wtnesse' testimony, indepndent of the issues discused abve, tat
would alow the Cou t rch a advere crdibility fnding. Altoug Rendents' tesmony
regading the pre-inteiew seach wa inconsistent at times, ther is no docuent evidence to
prove that no such seah took place, ad neiter agent ws able to defnitively stte whether te
seach took plae due to impere memor. Te Coun ackowleges the irconcilable
discpancie discussed above, bu it cn ot creit one verion of event over aote bu the
docuentar evdece doe not reliably coroborte either verion.
C. Constttionalit and Regultor Compliance of the Detention, Interogtion, and
Arrest
Havng fud that eah witess testifed credibly, te Cour wH1 evaluate the
consitutionalit ad regulator cmpliance of te ICE agents' ations uer bot versions of
eents. Te Cou ft analyzs the aents' accout of the El Balazo opeaion, ad, fr te
raons disuse below, fnds tat no cont1utionJ or rglator violation tok place.
Additionaly, even under Respondents' version of events, no consttional or rglator
volaton tante the evidence of aJienage tat te agent eventaly obtaed. Accoringly, the
moton to supprss ad teninate wl l be deie.
Accordig to Ofcer Szto ad Agent Bage, the ofcrs ent te Hagh SteEl
Baao restauant calmly at aound 1 0:30 a.m. on May 21 2008, puruat to a facially valid
war at. Tey did a initial swep of the rurt ad collecte te fve or sx eployee on
site, guiding them towar te diing aa. Ofcer Szto sat dow with Resondent Oiz and
bga akng her queon to complete the scrtch 1-21 3. See Exh. 7 (for identfcton) (1 1 3).
Dng this quesioning se establi she that Respondent Oiz wa prsent i the United Sttes
in violation of te law, ad at that point she placed Rendent Oiz unde ar . She subjecte
Respondent Oriz to a brief pat-ow seh ad then aked her where her perona belonging
were, ad together they reted to the kitchen to rteve Reondent Ori's backpack. Afe
obtaning perission, Ofcr Szeto sched Rspondnt Oriz's bakpack a coutd te
money in her walet, roring te amouts in the scratch I-213. Id Te interiew ad seh
took plac in a orderly fahion. Afer completig te interiew, ar st, ad sech, Ofce
Szto te over Reondet Oriz to be taen to Same, and she lef the sit.
Mewhile, ae te eploye had been gater in the dinig ae Aget Bae
identfed Respondent Solis a being able to spek Engish, ad he bega tlkng to him. He fr
asked Resndent Solis fo pension to sh his wallet fr identifcation ad, having reived
consen he opened te walet and fud Respondent Solis' s identifcation ca. He ten bega
aking Respndent Solis questions ad, though questioning, discovered tat Respondent wa
present in te United States illega11y when Respondent Solis admited a much ad "smled." He
then guided Respondent Solis to a neaby table, wher he continued questioning ad bega to fll
out the scrtch 1-21 3. Exh. 6 (fr identifction) (1 14). At some point, Agent Vaugha cae t
asist him wit questioning. Agent Bage was caled to anoter asiget befre compleing
A093138ll3, 114 21
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the interiew, so Agent Vauga took ove and completed te sratch 1-2 J 3 hlf
Respndets f ae t t aents were not author to sei, seh, a
intergat them, either b te wr t or by independent rsnble suspicion. Te Cou
disagres. Te DHS submited te seah wr t, whch wa sige by a magstate judge ad
autorzd te agent to sah the prmjses fr business rords i ferace of te crimna1
investigaton. Exh. 8 (for identifcation} ( 1 13); Exh. 3 {fr identifcation) (1 1 4). Bot aents
testied that they were aware of the war at's existence prior to enterng the site, ad tat tey
blieved it to be a facialy valid war t. See Pearson, 1 29 S.Ct. at 821 . Regadig the initial
detention, it is well-setled tht agents executing a seach wrt a authorizd to detin prson
fund present at the site of the seah in order to protect ofce safet, prvent destcton of
evidence, ad ensue t orely execution of the wart. S1mmers, 452 U. S. at 705. In
Summers, the Cour noted that te ror need not estblish the atuaJ existence of potentia
teats to pons or evidence to justf such a detention; it is enough tht the situation is one
whee such theats reaonably migt exist. Id. at 702. ln tis ce, the agents decision to gather
the enlp)oyees in a cntl a ad then isolate them fr individual quesioning w not
uneasonable. As bth agents testifed, ther wer dagerous items in the restut tt could
have caused sfety concers, ad it is reasonable fr agents to restct te movement of person
preet at te site of a inveigaton to deterie their rlationship to the ste ad to obtan ay
uefl inforation tey may have. See Muehler, 544 U.S. at 100. Fuhenorq Ofcer Szt
tstifed tat individus present when a seach war t is execute ae detaned t ensu that
they do not have evidence in their possesion that is rlevt to the investigaton. See Summers,
452 U.S. at 702. While Agent Bae disputed that he would expct to fnd business douents
on the pron of the employees, this rationale is ultimately raonable ad suppre by c
law. The Cou fnds tat ti intial detention wa jusife by the need to es ofcr sety
ad to prtect te integrit of the investigation during the orerly execution of a seah war t.
See Mueher, 544 U.S. at 101.
Second, the agents' quetionng of Resndents abut their immigton stat wa
wthin the auhority gnted to tm by te wart. In addition to brefy detaning prons
present dung the executon of a seah war t, agets are autorz to queson detinees,
including regading teir imigton status. Muehler, 544 U.S. at 101 . Te quetioning did not
continue fr a uasonable aount of time a Resndents were appantly ar sted wit
apprximately one hour of the star of the search, while te seah w stU tng place. See id;
Summers, 452 U.S. at 70. Respndents ague that the agents did not have ranble spicion
that the, as individuals, were prsent in the United States illegaly, so the
i
r continue deteton
ad interogation wa ujustifed. Resp t Closing Bref at 7 (Aug. 1, 201 1 ). Jn Summers, the
Cour rcogized that the paiculaized suspicion regaing the indivdua1 is a rlevm1t factor in
detenining te rasonableness of a detention during te execution of a seach wr t. 452 U. S.
at '03. However, te Cou also ackowledged that such rasonable suspicion may as fom
te exisence of a faially valid seah wrat be on prbable cus ta crmin activit is
afot on the premises. Id He, the ICE agent had rasonable suspicion of Reondents' lack
ofinigation stats baed on the fact that they were visibly employed at El Balao, a site
A03-l381 13, U4 22
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cur ently uder ivestigation fr illegal eployment of udocumente immigt. J ay event,
the Cour need not make this detenination beuse the detention ad quesioning we Justifed
under Muel/er. 54 U.S. at 1 02.
The Act pnits authorzed immigration ofcer to arst wthout a wr nt wher tey
have rason to blieve that te aien so arested is in the United Sttes in violation of any
[imigrtion] law." IA 287(a)(2); 8 C. F.R. 287. 8(c)(2)(i). Bol agent testifed that, while
te ionation cntine in te wart prvide some suspicion tat Respndents, employees
at El Balao, might be prsent i the Unite Slates without docuentation. they did not plae
Respondents under ar s until tey had completed te scrtch I-21 3s ad cncluded tat they
wer present in te United States in violaion of law. 1 1 Exh. 4. Respndents did not deny tat
tey aswere the ofcers' quetion abut their backgud ad sa in the United States at
the restaurnt. Tus, uder te agents' accout, Respondents w not placed uder aruntl
ther wre sufcient facts, gleed fom their ow volunta admi ssions, suppring lhe agents'
reasonable belief tat they we in the United States without penission. See IA 287(a)(2); 8
C.F.R. 287.8(c)(2)(i}.
Even under Respondents' verion of events, the Cour does not fnd that excluion is an
appropriate remedy to ay potential violation that may have taen place. Respondent ague tht
the agents impenissibly seahed their blongings prior to comencing questioning. According
to Respndentsy te ofcer orderd te employees to place their personal belonngs on a tble
in the dining Me ad ten they bgan seahing the employees waJlets and pues fr evidence
of alienage. Afer conducting these sehes, the agent began questioning Respondents ad
completing the scratch 12 I 3s. Wen asked how this pre-interiew seah afeted their deision
to answer te agents' questions, Respndents stated that they "may have" felt feto rmain
silent if their belongings had not alredy ben seahed. Tey did not estblish tat they would
nor he aswerd the quetions but fr te seah, nor did the show that te ofcers would not
have quesioned te but fr the sac.
Te Cou need not deene if te allege pre-interiew seahes violated Respondent
,
conitutionl or regulator rght becuse the ofce had indepndet autorztion to question
ad eventaly mst Respondents. In Maler ofCerantes-Torres. the Boad, fllowing long
stading Supreme Cour prcedent. held that the eclusiona rle dos not aply "wher the
goveret leaed of the evidence fm a indepndent source . ., 2 J I&N Dec. 351 , 353 (I
1 96). When te challenge evidence was obtne fm a soue independent of te alleged
constitutional violaton
,
excluion of that evidence woud "put the police in a worse postion t
they would have be n in absent ay .rr or violation." Nix v. Wifiams, 467 U.S. 43 1 , 443
(1 984). Te Supree Cou has held that evidence discovered during a il legal seah, which is
ten later obtained tough a validly issued war at. is not subject to te exclusiona re.
1 1
Te rgulations also ruir that a want for arst b obtained ecept where rhe ogent ''ha reason to
blieve that the prson is likely to escape befre a wnl can be obtined." 8 C.P.R. 287.8(cX2)(11). Under le
cirumstances, it w reasonable for Ofcer Szto and Agent Bare 10 bel ieve tat placing Respndenr unde ls
was necessar to prevent tem fom neeing bfr a warnt could be obtained.
A093-JJ8-l 13, 1 14
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..

Murra v. United Slates, 487 U.S. 533, 538-39 (1 987). In Muna, law enorment ofcias
illegally enter the defendant's whouse and fund evidence of crminal activt; the lef te
evidence udistbd ad obtne a seah war t, failing to mentjon their pror illega ent.
Id at 535-36. Te Cour held that the evidence ultiately obtained fm that w8ant wa
admisible beause ter was no cusl lin btwen the illegal entr and the lawl dsove of
the evdenc puuat to te war t. Id. at 543.
Her, a discussed above, te wr t authoriz the agents to seh the Hagt Steet El
Balno andt by extension, autorzd them to detain ad question pron present on the premse
puuat to Summers ad Muehler. Muehler, 544 U. S. at 1 01 ; Smmers, 452 U.S. at 705. I
additiong the ofcer had reaonable suspicion to blieve that Rendents we prsent in the
Unite States without authoriztion due to the infrmation they pssessed about te cmina
investigation ad their status a employes at the rtaut. See 8 C.F.R. 287. 8(c)(2)(i). Tu,
even if the ofcer did conduct a illegal seah of Respndents blongings prior t qusioning
them, the wrt confered upon them independent authoriztion to obtan evidence of aienage
toug questioning, which they did+ See Nix. 467 U. S. at 43. Respondents do not dste tat
tey actlly did rnd to questions abut teir identity and alienage. Thus, te Cou fnds
that, even uder Respondent acount of the opertion, no constitutional or reglator violaion
gave rise to the dscover of alienage, and the exclusiona rle dos not aply. Beaue te
ofcer had authority ad rson to question Respondents independent of the aleged pr
interiew search, Respondents have not etab1ished that their sttements a the "fit of te
poisonous tree" of the seach. See Wong Sun v. United States, 371 U. S. 471 , 488 {1 963).
Additionally, ay potetial violation of Respondents' rgts under the rgulations did not
prejudice Resondents+ See GadaFlores. 1 7 l&N De. at 328.
Finally, even uder Rendents acount of the opration, the agents' actions wer not
ureaonably frefl or coerive s as to volate Respondents' rgts uder te Fif
Aendment or rnder teir sttements uliable. Te fat of te psent cae a disinct fm
cases in which the Board ha foud impen isible coeion. Compare Gacia. 17 I&N De. at
320-21 (supprssion appropate wher ofcer prvented rsndet fom contating hs
attorey, rspndent was held in detention fr a substata time pero, ad ofc rrnted
t hi that he h no rgt ad hs rt to Mexico wa "inevitble") with Ramirez.Snche, 1 7
l&N De. at 506 (suprssion iapproprate absent "physicl abuse, homs of intergation, denial
of foo or d, thts or prmises, or iterence wt ay atempt by the rspndent t
exeise his rights''). Her, Respndents allege that te ofcrs enter te restut wt gs
daw, "gbbd" the employes to brng them into the dining rom, ad spoke i loud ad
.. demading" voices. Tey also testfed that the fact that teir wallet had alrady be sahed
pror to questioning infuence tem to voltmtaly aswer the ofcers' questions, whea tey
may have chosen not to do so had no searh taen place. Even uder Respondent accout, the
Cour cnot find that the ofcers used uaonable or coercive metods to obtin Respondents'
admissions. Ofcer Szeto ad Agent Barge bot testifed that there wee legitimate concers of
offc
er set due to the dangerous items present in te rtaut, so te Cou can ot conclude
tat a decision to enter te restaurnt wt weapons draw would have been per se uasonable.
Moreover. neither Resndent claims to have been detaned fr a Weasonable aout of time,
A03-1381 13, 1 14 24
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physiclly abused, theatene, or made ay promises. See Ramirez-Snchez, 17 I&N De. at 506.
Finally, Respndents' tstony rgaing te infuenc of the prquestionng seh on teir
deision t aswer queton dos not stsf the Cou tat sch a seh would have crte
impnssibly crive conditions.
Te Fon 1-21 3, te FIF, ad the inoration contned thern cn ot b supprse
frm te rcord uder Boa, Ninth Ciruit, or Unted States Suprme Cour preent. Garcia
Flores, 17 l&N De. at 32829; Ohorhghe, 38 F.3d at 493; Lopz-Mendoza, 468 U.S. at 1 050.
Thus, the Cour admits the fllowng documents into the recor: Respondent Oriz's fnaJ
For 1-21 3 is admi ted as Exhibit 2 (1 1 3); Respondent Oriz's scrtch 1-2 1 3 is admited a
Exhibit 7 (1 1 J); Respondent Solis s fnal Fon 1-21 3 is admitted a Exibit 2 ( 1 1 4); te copies
of Respondent Solis's scratch 1-21 3 a admited a Exhibits 6 (1 1 4) ad 8 (1 1 4); ad te FIF
rgading Resondent Solis is adited a Exhibit 9 ( 1 1 4).
D. Removabilit
A For 1-21 3 is cnsidered inerently trsory ad admissible a evidnce t prve
alienage or deprtability, absent evidence that the fn contins inonation that is incorct or
was obtine by coerion or durss. See Ponce-Hernndez, 22 I&N De. at 785; Bar'cens, 1 9
l&N De. at 609. As discussed above. te Cour h fud tat te Fons 1-21 3 wee not
obtaine by coerion or duss. Fuer, ter is no evidence in the reord ta te frs contin
material infration that is incorct,
12
The Fon I-21 3 rgaing Respndent Oriz states ta
she wa br i Metec, Hidalgo, Mexico, on June I 0, J 984, and is a citizn of Mexico. Exh. 2
( 1 1 3) at I . It fe states tat Respondent Oriz last etere the United States on or mud a
unkow date in April 2005, at or nea Nogales, Azna, wtou ispction. Id at 2. Bae on
tese facts, the Cou fnds tat Respondent Oriz is rmovable a charged a a aien prnt i
te Unite States witout having ben admited or pole. IA 21 2(a)( 6){A)(i).
The For 1-21 3 regaing Resndent Solis stts tt he wa bom in Yucat, Mexico,
on Marh 1 9, 1 965, and is a citiz ofMexico. Exh. 2 ( 1 1 4) at I . It fe sates tat
Respondent Solis last enter the United States on July 8, 205, at a uow plac by crssing
thugh te dese. Id at 2. Bae on tese fcis, the Cou fnds tat Rendet Solis is also
rmovable a chared a a aien prnt in te Unte States wthout having ben amited or
paroled. INA 21 2(a)(6)(A)(i).
Becue Respndets hae not had a opprit to deigate a cwt of rmoval or
indicate their intent to fle ay applications fr relief fom remova, tey will be prvided such a
opporunity now. Should they wish to apply fr relief fm removal, their caes will b rset to
allow tem an opporit t sek tat rlief.
12
The Cou nots tat Respondet Oniz's For 121 3 indicate that she is not mar ied, which is icomct
accoring to the scrtch 121 3 and Ofcer Szto's testimony. Ex. 2 (1 1 3) at 2; Ex. 7 (1 1 3). However, buse
this fac has no beg on Resndent oiz' s imigation stats, the Cou fnd that it do not uenine te
rliabilit of the For 121 3.
A093-138U3, l J 4 25
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. .

Bad on the frgoing, te fllowng orer shal enter:
ORER
IT IS HEREBY ORERD tat Respndents' motion to supprss b ad herb is
DENIED.
IT I FTHER ORERD that Respondents' motion to teninate b ad heby is
DENIED.
IT IS FRTHR ORDERD that Respondents, witn 1 S days of te issuce of ts
order, submit witen statement indicating a countr of rmoval, should tey wsh to do so, ad
what fns of relief, if ay. te intend to seek.
093138113, J l 4 26
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Maria de Jesus Ortiz-Mejia, A093 138 113 (BIA Mar. 7, 2013)

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Maria de Jesus Ortiz-Mejia, A093 138 113 (BIA Mar. 7, 2013)

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