Deportation Case Stirs Division in Ninth Circuit

SAN FRANCISCO (CN) – The 8-year-old deportation case of Luis Enriquez Sanchez, who has lived as an undocumented immigrant in the United States for nearly three decades, has caused a rift in the Ninth Circuit, as U.S. Circuit Judge Diarmuid O’Scannlain blasted his colleagues Monday for halting removal proceedings in an opinion he called an “errant decision, a very unfortunate precedent with troublesome consequences for our immigration jurisprudence.”

A panel comprising U.S. Circuit Judges Kim McLane Wardlaw, Richard A. Paez, and Morgan Christen concurred in the court’s denial to re-hear Sanchez’s case en banc, drawing O’Scannlain’s ire by reasoning that because Sanchez had been detained solely because of his race, the government should examine whether it violated its own regulation against unlawful searches and seizures.

Sanchez, who arrived in the United States from Mexico in 1988 at age 17, was seized by the Coast Guard while on a fishing trip with friends. His boat had unexpectedly lost power and, with an infant on board, one of the friends called for help.

They were towed to safety at the Channel Islands Harbor near Oxnard but were immediately detained and asked for identification.

Suspecting Sanchez and his friends were undocumented, the officers called Customs and Border Protection. Sanchez was taken into custody, where his unlawful status was discovered.

Sanchez claimed he was detained because of his Latino appearance and moved to suppress the evidence against him. Wardlaw, Paez, and Christen overturned an immigration judge’s denial of Sanchez’s motion to suppress and remanded the case to allow the government to rebut Sanchez’s showing that he had been unlawfully searched.

“We thus confronted a clear case of racial profiling – an egregious violation of the Department of Homeland Security’s own internal regulation to deter unlawful searches and seizures, 8 C.F.R. § 287.8(b)(2). In line with the Second Circuit, we held that an egregious violation of § 287.8(b)(2) could warrant termination of removal proceedings without prejudice and we remanded to the agency to afford the government an opportunity to rebut Sanchez’s prima facie case. Nothing more, nothing less,” Paez wrote for the panel Monday, calling the court’s 2017 ruling a “limited but tailored remedy” to ensure that immigration officers are held accountable for violating rules meant to protect a person’s rights.

He added, “Even the government agreed that remand, not rehearing en banc, was the appropriate next step for Sanchez’s case.”

O’Scannlain issued an excoriating rebuttal, calling the panel’s remand an “extravagant remedy” that will only delay Sanchez’s inevitable deportation.

“The opinion’s irredeemable flaw is its attempt to cure an illegal arrest – a quintessential Fourth Amendment violation – with a remedy that the Fourth Amendment would never authorize,” O’Scannlain wrote in a statement respecting order joined by U.S. Circuit Judges Consuelo Callahan, Carlos Bea, Sandra Ikuta, Mark Bennett, and Ryan Nelson.

“The Due Process Clause promises aliens the ‘full and fair’ opportunity to assert the right to remain in the United States. But here, Sanchez’s unlawful arrest has no effect at all on the deportation proceeding itself,” O’Scannlain, a Ronald Reagan appointee, wrote. “His illegal arrest does not infringe upon his ability to offer evidence, to obtain counsel, or to make his case before the [immigration judge]. No legal support there!”

He said the panel’s opinion offers a windfall to anyone who can show that immigration officials violated their own rules during investigation, detention, and removal proceedings and will assuredly clog the system with inefficiency.

“Doubtless, enterprising lawyers will seize on the opinion’s extravagant reasoning to seek still-more intrusive remedies in civil deportation proceedings. We should not invite their spurious arguments,” O’Scannlain railed.

Even criminal defendants aren’t afforded the same legal advantages, he said.

“Could the court instead dismiss the criminal indictment because the illegal arrest tainted the criminal proceeding that followed? Could the court order the defendant to be released from custody? Of course not. Indeed, the panel does not cite a single case that terminates a criminal proceeding for such a reason,” O’Scannlain wrote. “And if termination of proceedings would be unavailable in a criminal prosecution, then it should be inconceivable in a civil deportation proceeding.”

“Worst of all,” he added, “the opinion’s imposition of an extraordinary remedy wastes everyone’s time, for it does nothing but delay the petitioner’s inevitable removal. The en banc process exists to ensure the sound development of our circuit’s case law, and we should have used it here to correct the panel’s extravagant and erroneous decision.”

Paez countered O’Scannlain’s argument that the appellate court has no authority to address the government’s violation of its own rule.

“Contrary to Judge O’Scannlain’s assertions, we did not pull such a remedy out of thin air,” Paez wrote, noting that the termination of Sanchez’s deportation proceeding without prejudice dates back to 1979 in its decision in United States v. Calderon-Medina.  “The remedy turns on when the violation occurred and to what degree, not – as Judge O’Scannlain claims – what part of the Constitution is implicated.”

The Bill Clinton appointee said allowing the government to get away with racial profiling and inconsistent observance of its own rules will mean fewer protections from racism in immigration enforcement.

“There is more at stake than the outcome of a single case,” he wrote.

Sanchez’s immigration attorney did not return a call seeking comment Monday.

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