On September 19, 2006, five men gathered in Kennedy Park in Danbury, Connecticut sought work as day laborers. On the same day, the Danbury Police Department and U.S. Immigration and Customs Enforcement ("ICE") were conducting a sting operation in the area. A man offered the petitioners work, so they entered his vehicle and were driven to a parking lot nearby. Upon exiting, the petitioners found themselves surrounded by law enforcement officers and arrested. During questioning, the petitioners made incriminating statements about their immigration status, which were documented on Form I-213s ("Record[s] of Deportable/Inadmissible Alien").

Between October 2006 and March 2007, the men were served with Notices to Appear. The Notices alleged that they had entered the United States illegally as Ecuadoran citizens and placed them in removal proceedings. The men appeared before an Immigration Judge and moved to suppress their Form I-213s, arguing that egregious violations of their Fourth Amendment rights while in the custody of ICE required suppression of the statements within the forms. In January 2008, the Immigration Judge denied the motions and ordered the men removed.

The five men (“petitioners”) appealed the decisions to the Board of Immigration Appeals ("BIA"). They also filed motions to remand, arguing that previously unavailable evidence demonstrated that they had been arrested by the Danbury Police Department, not ICE. In July 2010, the BIA denied the motions and dismissed the appeals. The petitioners appealed these decisions to the United States Court of Appeals for the Second Circuit in a consolidated appeal. In 2011, the petitioners moved to reopen the proceedings based on new evidence produced in their civil rights lawsuit against ICE and the Mayor of Danbury. See Danbury Area Coalition for the Rights of Immigrants v. U.S. Dept. of Homeland Security and Barrera v. Boughton. The BIA denied these motions; so the petitioners then appealed those decisions to the Second Circuit. All of the appeals were consolidated.

On August 14, 2014, a divided three judge panel of the Court of Appeals for the Second Circuit denied the petitioners' petitions for review of the BIA orders. In an opinion written by Judge Dennis Jacobs, the court held that the petitioners' allegations, along with the evidence they submitted with their affidavits, failed to amount to "egregious constitutional violations," and therefore no basis existed for excluding the Form I-213 evidence. The court found that the petitioners "self-selected on the basis of their willingness to seek and accept day labor," and that there was no evidence they were gathered by the authorities or targeted on the basis of their race.

The court also concluded that petitioners could not rely on exclusionary principles drawn from the criminal context, as this was a "purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry." ICE's alleged pre-hearing violations of its own internal agency rules did not warrant termination of removal proceedings. And the BIA did not abuse its discretion in denying the motions to reopen, as it "reasonably determined that evidence of use of force during arrest was neither new nor previously unavailable." Maldonado v. Holder, 763 F.3d 155 (2d Cir. 2014).

In dissent, Judge Gerard E. Lynch stated his belief that the majority erected a "nearly insuperable barrier to obtaining an evidentiary hearing rest[ing] on a cramped definition of egregiousness that is inconsistent with [Second Circuit] precedent" that "threatens to deprive persons placed in removal proceedings of the basic levels of fundamental fairness that the Constitution demands." Judge Lynch stated that the petitioners offered sufficient evidence that, if true, suggested "a multi-year harassment campaign targeted at Danbury's Hispanic residents" that culminated in the arrest of petitioners "without plausible legal justification based solely on their ethnicity, national origin, and status as day laborers." This, he believed, satisfied the necessary "egregiousness" analysis and warranted a full evidentiary hearing. Maldonado v. Holder, 763 F.3d 155 (2d Cir. 2014).

On December 30, 2014, the Second Circuit denied the petitioners' motion for rehearing en banc. The case is now closed.

Dan Whitman - 02/16/2015
Sam Kulhanek - 11/09/2018


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