Pinto-Montoya v. Mukasey (8/26/08)

Cabranes, Pooler, Sack (Per Curiam):

Petitioners filed PFR challenging BIA's order affirming IJ's denial of their motion to suppress statements obtained after immigration officials allegedly seized them on the basis of their race and nationality for questioning at the airport.  The court affirmed the Board's order, finding that petitioners had not been seized within the meaning of the 4th Amendment b/c their encounters while disembarking from a plane from Guatemala with the agents had been consensual.  In particular, the court focused on the fact that petitioners had not been physically restrained, ordered to stop, or otherwise coerced to answer questions, and that - as the agents were plainclothes officers who did not identify themselves as immigration officials - petitioners were not compelled to respond to an assertion of authority. This conclusion was bolstered by the fact that petitioners had testified that they did not know the persons approaching them were law enforcement officers.

Petitioners’ testimony before the IJ does not suggest that they were physically restrained, ordered to stop, or otherwise coerced to answer questions when the agents approached them. Nor can petitioners plausibly argue that they answered the agents’ questions in response to an assertion of authority. Petitioners testified that they were not aware that the persons approaching them were law enforcement officers. Indeed, the agents were not dressed in uniform, did not display their badges, or otherwise identify themselves as immigration officials.

Moreover, the court, relying on the Supreme Court's opinion in INS v. Delgado, 466 U.S. 210 (1984), concluded that the fact that the agents were blocking the ramp while petitioners disembarked from the plane did not make the encounter a stop or seizure meriting 4th Amendment protections.  Just as Delgado had held that INS agents' presence at factory doors, in order to ensure that all persons inside the factories were questioned, was not a seizure, the agents' presence at the ramp here was not a seizure since the agents' conduct "should have given respondents no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." Delgado at 218.

Although the court did not find a 4th Amendment violation in the case at hand, it did - citing its decision in Almeida-Amaral v. Gonzales, 461 F.3d 231 (2d Cir. 2006) - acknowledge that, under Lopez-Mendoza, exclusion of evidence would be appropriate if record evidence established an egregious violation that was fundamentally unfair or a violation that undermined the reliability of the evidence in dispute.  The court also cited its decision earlier this year in Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008) for the proposition that a seizure that was not especially severe might nevertheless qualify as an egregious violation if the stop were based on race.  The court left open the question of whether use of the INS Protocol in place - which used criteria including "Mestizo physical appearance" and choice of flight - would constitute an egregious violation warranting exclusion, declining to consider this question since petitioners had not been seized. The court noted:

In addition, although the IJ and IA both concluded that there was nothing unreasonable or egregious about the encounter between
petitioners and the immigration officials, the affidavit of the special agent in charge of the operation indicates that “[i]n determining who would be identified for questioning, the protocol dictated that
Agents look for passengers” who, inter alia, had a “Mestizo physical appearance.”

PFR denied. 

Read opinion here:

Atty for petitioners: Jon E. Jessen, Stamford, CT

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