Veronica Barba

Lucas Barba, LLP

453 S. Spring Street, Suite 630
Los Angeles, CA 90013
Telephone: 213.802.0633
Facsimile: 213.802.0636

Eva Bitran

Michael Kaufman

ACLU Foundation of Southern California
1313 W. 8th Street

Los Angeles, CA 90017

Telephone: 909.380.7505

Facsimile: 213.977.5299

Attorneys for Respondent
Edgar SOLANO

NON-DETAINED

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

OFFICE OF THE IMMIGRATION JUDGE

LOS ANGELES, CALIFORNIA

In the Matter of:
Edgar SOLANO,
Respondent,

In Removal Proceedings.

 

 

Na?

Hearing date: July 30, 2018

Hearing time: 9:00 AM.

Before: Hon. Judge Gita Vahid?Tehrani
Courtroom: 3

MOTION TO TERMINATE PROCEEDINGS

Introduction
Respondent Edgar Solano, by and through counsel, hereby moves to terminate these
proceedings because Customs and Border Protection (CBP) of?cials arrested him in violation of

controlling regulations and the United States Constitution.

On January 11, 2018, two CBP of?cers detained Mr. Solano as he prepared to board a
Greyhound bus in Indio, California. Knowing nothing about him other than his name and the fact
that he appeared to be of Latino ethnicity, the CBP of?cers asked Mr. Solano to step out of the
line to board the bus, handcuffed Mr. Solano, and permitted the bus to leave the station.
Although the CBP agents had no reasonable suspicion to believe Mr. Solano was a noncitizen
subject to removal, they nonetheless detained him?in clear violation of regulations, statute, and
the Fourth Amendment. The integrity of the administrative and judicial process requires that
proceedings arising out of these regulatory violations be terminated. See Sanchez v. Sessions, 870
F.3d 901, 910 (9th Cir. 2017); Gonzalez-Rivera v. I.N.S., 22 F.3d 1441, 1448 (9th Cir. 1994).
Statement of Facts

Mr. Solano is a resident of Los Angeles, where he works as a property manager and a
handyman. Decl. of Respondent Edgar Solano, Exh. A at 1] 2. He has developed a network of
clients across southern California, and at times travels within the region to provide services at his
clients? residences. See Exh. A at 11 2. On January 11, 2018 Mr. Solano agreed to help a client at
a property in Indio. See Exh. A at 11 3. Because his car was out of order, Mr. Solano took a
Greyhound bus from Los Angeles to Indio, and then an Uber to the jobsite. Exh. A at 111] 3, 9;

Photograph of Respondent Edgar Solano?s Bus Ticket, Exh. B.

When he ?nished work in the evening, Mr. Solano returned to the Greyhound station.
Exh. A at 11 3. He intended to take the 9:25 pm. bus back to Los Angeles?the last bus of the
day?but the bus was delayed. Exh. A at 1] 4. He waited at the station. See Exh. A at 1111 3, 4.

Over an hour after the bus?s scheduled departure time, as Mr. Solano stood in line to
?nally board, two men in plain clothing approached him and asked him to state his name and
where he lives. Exh. A at 111] 4,5. Mr. Solano gave his name and answered that he lives in Los
Angeles. Exh. A at 11 5. Next, the men asked Mr. Solano to step out of the line and show his
identi?cation. Exh. A at 1] 5. As the line was advancing and this was his last opportunity to board
a bus home for the evening, Mr. Solano replied that he would rather not. Exh. A at 1] 5. He
attempted to show the men his ticket, which was on his cell phone, and insisted that he needed to
board. Exhthe men?who appeared to be Latino?ordered Mr. Solano to step out of the line.
Exh. A at 11 6. He then took Mr. Solano by the upper arm and steered him away from the bus
toward an unmarked pickup truck in the parking lot. Exh. A at 1] 6. Mr. Solano felt he had no
choice but to walk with the man who had ordered him to step aside and taken him by the arm.
Exh. A at 1] 6. As Mr. Solano and the men walked away from the bus toward the pickup truck,
one of the men indicated to the bus driver that he could drive away?and indeed, as soon as the
bus ?nished boarding, it left the station. Exh. A at 11 6.

When Mr. Solano and the two men reached the pickup truck, one of the men instructed
him to turn around and handcuffed him. Exh. A at 11 6. ?nce Mr. Solano was cuffed, the men told
him that they are immigration enforcement agents and showed badges reading ?Customs and

Border Protection.? Exh. A at 11 7.

After he was handcuffed, the of?cers asked Mr. Solano questions. Exh. A at 1] 8. They
asked again for his identi?cation, and he said he had none with him because he had left his
license in his car in Los Angeles. Exh. A at 1] 8. They asked for his country of origin, and he said
he is from Mexico. Exh. A at 1] 8. They asked if he has papers authorizing his presence in the
United States, and he said he did not. Exh. A at 1] 8. They asked about his travel that day, and Mr.
Solano answered how he got from Los Angeles to the jobsite and back to the station. Exhthe of?cers indicated he did not believe Mr. Solano: he told him not to lie, and to admit
that he had just recently crossed the border. Exh. A at 1] 9. Mr. Solano insisted this was not true,
and reiterated that he could prove he had a ticket if he could show the of?cers his telephone.
Exh. A at 1] 9; see also Exh. B. The of?cers asked him how he paid for the ticket, and Mr. Solano
replied that he had used his credit card. Exh. A at 1] 9.

Next, the Latino of?cer turned to the other and made a comment about Mr. Solano?s
shoes looking suspicious. Exh. A at 1] 10. Mr. Solano was surprised: although one of his shoes
was untied, he did not ?nd anything suspect about his attire. Exh. A at 1] 10. He had simply
changed from his work clothing back into his street clothing to make the trip home. Exh. A at 1]
10.

The of?cers asked Mr. Solano several more questions about his background, including
how long he had been in the United States, his marital status, whether he has children, and
whether he has a criminal history. Exh. A at 1] 11. Mr. Solano answered these questions
truthfully. Exh. A at 1] 11. The of?cers then asked why Mr. Solano did not run into the station
when he saw the men approach. Exh. A at 1] 12. Mr. Solano replied that he wanted to make sure
he could take the last bus home, and further, that he had no reason to fear the two men. Exh. A at

1112.

Finally, the men made a few calls on their radios and ordered Mr. Solano to board the
pickup truck. Exh. A at 11 13. They told Mr. Solano he was under arrest for being in the United
States without authorization. Exh. A 1113. They drove Mr. Solano to a nearby Customs and
Border Protection station, where he spent the night. Exh. A at 11 13. The following morning,
agents from Immigration and Customs Enforcement took custody of Mr. Solano and drove him
to the San Bernardino ?eld station, and from there to the Adelanto Detention Facility. Exh. A at
11 15.

Mr. Solano spent more than two months in detention, separated from his partner and his
two step-daughters. Exh. A at 16. Because Mr. Solano is the principal provider for his family,
they experienced hardship while he was away: they fell behind on car and insurance payments
and lost their vehicle, and Mr. Solano feared they would go hungry and lose basic utilities for
failure to pay the bills. Exh. A at 11 17.

On March 19, 2018 Mr. Solano had a bond hearing and was granted a $5,000 bond. After
raising funds from his friends, family, and employers, Mr. Solano paid the bond and was
released, subject to ankle monitoring, on March 30, 2018. Exh. A at 1] 16.

Summary of Argument

Mr. Solano respect?illy moves for termination of these proceedings. CBP officers
violated governing regulations by detaining Mr. Solano without individualized reasonable
suspicion to believe he was a noncitizen subject to removal from the United States. See 8 C.F.R.
These regulations, which govern investigative detentions and arrests, are designed to
implement the protections of the Fourth Amendment to the US. Constitution and to safeguard
the rights of people like Mr. Solano. See id; US. Const. amend. Sanchez v. Sessions, 870

F.3d 901, 910 (9th Cir. 2017). Because these removal proceedings result from CBP agents?

violation of governing regulations, this Court should grant Mr. Solano?s motion to terminate. See
Matter ofGarcia-Flores, 17 I. N. Dec. 325, 328 (BIA 1980).
Argument

1. This Court Should Terminate These Proceedings Because Detention of
Mr. Solano Was Unlawful

Mr. Solano requests that the Court terminate these removal proceedings because CBP
arrested him in violation of governing regulations, statute, and the Fourth Amendment to the
Constitution. In particular, CBP ?elds agent stopped and detained Mr. Solano without reasonable
suspicion that he was a noncitizen subject to removal, in violation of 8 C.F.R. (2).
When the agents asked Mr. Solano to step out of the line to board the Greyhound bus and put
him in handcuffs?after Mr. Solano protested that he did not want to, as he would miss his last
opportunity to get home for the evening?-they knew only his name and that he was of apparent
Latino ethnicity. The stop was plainly unlawful. Longstanding Ninth Circuit and Supreme Court
precedent holds that, to effectuate a lawful seizure, agents must have reasonable suspicion based
on speci?c, articulable facts to believe that an individual is subject to removal ?and critically,
this suspicion cannot be based on that person?s ethnicity.

Because CBP agents disregarded regulatory provisions designed to safeguard Mr.
Solano?s constitutional rights, this Court should terminate these proceedings. See Sanchez, 870
F.3d at 912?13.

A. Relevant Legal Standards

An immigration court must terminate removal proceedings when the government violates
its own immigration regulation if (1) the regulation serves ?a purpose of bene?t to [the

noncitizen]? and (2) the violation prejudiced the noncitizen?s protected ?interests in such a way

as to affect potentially the outcome of the[] deportation proceeding.? Garcia?Flores, 17 I. N.
at 328; accord Sanchez, 870 F.3d at 912.

The Ninth Circuit has held that the regulations at issue in this case?8 C.F .R. 
(2)?were designed to bene?t noncitizens by protecting their right to privacy and
preventing them from being subject to racial pro?ling and unjust detention. Sanchez, 870 F.3d at
912?13. The regulations enforce statutory and constitutional constraints on agents? authority to
carry out detentions and arrests. 8 C.F.R. 287.8 sets out the rules that ?must be adhered to by
every immigration of?cer involved in enforcement activities.? Id. (emphasis added). These
regulations implement INA 287(a)(2), which enumerates the powers of immigration of?cers
and incorporates constitutional standards. See ejeda-Mata v. Immigration Naturalization
Sew, 626 F.2d 721, 725 (9th Cir. 1980). CBP of?cials may only detain an individual for
questioning if they have ?reasonable suspicion, based on speci?c articulable facts, that the
person being questioned? is a noncitizen without authorization to be in the United States. 8
C.F.R. (2). Therefore, 8 C.F.R. 287.8(b) serves ?a purpose of bene?t? to Mr.
Solano: the regulation protects his rights under statute and under the Fourth Amendment.

?Where compliance with the regulation is mandated by the Constitution, prejudice may
be presumed.? Garcia?Flores, 17 I. N. at 329. This presumption of prejudice for certain
regulatory violations is rooted in a long line of Supreme Court cases invalidating agency action
when the agency violates a regulation promulgated to protect a fundamental right. See, 
Bridges v. Wixon, 326 US. 135, 152?53, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945) (invalidating a
deportation order based on statements obtained in Violation of the IN S?s rules designed ?to afford
[the noncitizen] due process of law?); see also Leslie 12. Attorney General of the US, 611 F.3d

171, 180 (3d Cir. 2010) (collecting cases and holding ?when an agency promulgates a regulation

protecting fundamental statutory or constitutional rights of parties appearing before it, the agency
must comply with that regulation. Failure to comply will merit invalidation of the challenged
agency action without regard to whether the alleged violation has substantially prejudiced the
complaining party?). As noted, 8 C.F.R. 287.8 creates an ?entire procedural framewor ?that
was ?designed to insure the fair processing of an action affecting an individual,? Garcia?Flores,
17 I. N. at 328?here, by safeguarding that individual?s Fourth Amendment rights. Sanchez,
870 F.3d at 912?13. Therefore, violation of these regulations ?can be deemed
prejudicial.? See Garcia?Flores, 17 I. N. at 329.

B. CBP Detained Mr. Solano Without Reasonable Suspicion to Believe He Was a
Noncitizen Subject to Removal

This Court should terminate Mr. Solano?s removal proceedings because CBP detained
him in violation of 8 C.F.R. As described above, the regulations governing
enforcement operations make clear that CBP of?cials may only stop and detain an individual for
questioning if they have ?reasonable suspicion, based on speci?c articulable facts, that the
person being questioned? is a noncitizen without authorization to be in the United States. 8
C.F.R. Absent such suspicion, an of?cial may only question an individual so long
as that person knows that he or she is free to leave. See Enhancing the Enforcement Authority of
Immigration O?icers, 59 FR 42406, 42411, 59 FR 42406-01, 42411; see also 59 Fed. Reg.
42406, 42411 (Aug. 17, 1994) must not lead the person being questioned to
believe that he or she is not free to leave the presence of the I.N.S. v. Delgado, 466
US 210 (1984). These regulations track and implement the protections of the Fourth
Amendment, see Sanchez, 870 F.3d at 912?13, and therefore case law de?ning a reasonable
seizure for constitutional purposes provides the appropriate standard. See, e. g, United States v.

Manzo?Jurado, 457 F.3d 928, 939 (9th Cir. 2006) (?nding Fourth Amendment Violation in

immigration context because detention lacked ?particularized suspicion of the person to be
stopped?).

The Fourth Amendment, which safeguards against unreasonable searches and seizures,
?applies to all seizures of the person, including seizures that involve only a brief detention short
of traditional arrest.? United States v. Brignoni?Ponce, 422 U.S. 873, 878 (1975); see also erry
v. Ohio, 392 U.S. (1968). A law enforcement of?cer may only make an investigatory stop if he
has ?a reasonable suspicion supported by articulable facts? that the person detained has engaged
in unlawful conduct. United States v. Montero?Camargo, 208 F.3d 1122, 1129 (9th Cir. 2000)
(en banc) (quoting United States v. Sokolow, 490 U.S. l, 7 (1989)). The reasonable suspicion
analysis is ?not readily, or even usefully, reduced to a neat set of legal rules.? Id. (quotation
marks omitted). Rather, courts consider the totality of the circumstances to determine whether
the of?cer was ?aware of speci?c, articulable facts which, when considered with objective and
reasonable inferences, form[ed] a basis for particularized suspicion.? Id. (emphasis in original).

A person?s race or ethnicity cannot provide reasonable suspicion to stop and detain them.
?Hispanic-looking appearance and presence in an area where [noncitizens without status]
frequently travel are not enough to justify a stop to interrogate the occupants of a vehicle. More
is required.? Nicacio v. U.S. I.N.S., 797 F.2d 700, 703 (9th Cir. 1985), overruled in part on other
grounds by Hodgers?Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir.1999) (en banc); see
also Sanchez, 870 F.3d at 910 (it is ?clearly established? that ?seizing a person solely based on
ethnic appearance? is unlawful); Manzo?Jurado, 457 F.3d at 935 (individuals? appearance as a
Hispanic work crew, inability to speak English, proximity to the border, and unsuspicious
behavior, taken together, did not provide a federal immigration of?cer reasonable suspicion to

conduct a stop); Orhorhaghe v. I.N.S., 38 F.3d 488, 494 (9th Cir. 1994) INS agents

to seize and interrogate an individual simply because of his foreign-sounding name or his
foreign-looking appearance risks allowing race or national-origin to determine who will and who
will not be investigated?).

CBP detained Mr. Solano while he was waiting to board a Greyhound bus from Indio,
where he had completed a job, back to his home in Los Angeles. Exh. A at 11 3. The CBP agents
asked Mr. Solano to step out of line, despite his protestations that he wanted to board and would
otherwise be unable to get home, seized him by the arm, walked him to a pickup truck, and
placed him in handcuffs?without knowing anything about him but his name and that he
appeared to be of Latino ethnicity. Exh. A at 5,6. Then, agents indicated to the bus driver that
he could drive away. Exh. A at 1] 6.

Mr. Solano did not feel free to leave, nor was he. The of?cers? actions, words, and
demeanor ?communicated to a reasonable person that he was not at liberty to ignore the police
presence and go about his business.? Orhorhaghe, 38 F.3d at 494 (relevant factors include
whether a person?s path is blocked and whether of?cers act in an authoritative manner); cf
Manzo?Jurado, 457 F.3d at 934 n.3 (order requiring subject to ?show hands? constituted
detention). The fact that of?cers handcuffed Mr. Solano alone establishes that he was detained.
United States v. Juvenile (RRA-A), 229 F.3d 737, 743 (9th Cir. 2000) was the
clearest indication that [juvenile] was no longer free to leave and therefore [found] to be the
point of arrest?); United States v. Bravo, 295 F.3d 1002 (9th Cir. 2002) (handcuffed individual
was detained). In addition, the of?cers made clear that Mr. Solano was not ?free to leave? by
demanding that he step out of line, taking him by the arm and escorting him to their vehicle, and
permitting the bus to depart. Exh. A at 1T 6; See United States v. Mendenhall, 446 US. 544, 554

(1980) (?Examples of circumstances that might indicate a seizure, even where the person did not

10

attempt to leave, would be the threatening presence of several of?cers, the display of a weapon
by an of?cer, some physical touching of the person of the citizen, or the use of language or tone
of voice indicating that compliance with the of?cer's request might be compelled.? (emphasis
added)).

The CBP agents who detained Mr. Solano knew nothing about him other than his name
and his apparent ethnicity. It was only after he was seized and handcuffed that agents asked Mr.
Solano questions that might have given rise to reasonable suspicion that he was in the country
without authorization. Mr. Solano had no prior contact with immigration authorities, and the
of?cers had no other information from which reasonable suspicion might arise. Indeed, when
Mr. Solano asked why he had been singled out, agents told him it was because of his shoes,
rather than because agents had any information about him in particular. Exh. A at ll 10. This was
insuf?cient to provide reasonable suspicion that Mr. Solano was a noncitizen subject to removal,
8 C.F.R. conduct was contrary to governing regulations, statute, and the
Fourth Amendment.

Because these regulations serve to protect individuals like Mr. Solano and are part of a
regulatory scheme designed to implement constitutional requirements, see Sanchez, 870 F.3d at
912?13, the CBP agent?s violation is presumptively prejudicial. Garcia?Flores, 17 I. N. at
329. Even if Mr. Solano were required to show prejudice, he could do so easily: he would not
have spoken with the CBP of?cer had he not been seized. This Court should terminate Mr.

Solano?s removal proceedings on the basis of these violations.
II. Relief Requested

Mr. Solano respect?illy requests that the Court terminate these proceedings because CBP

violated governing regulations in the course of his detention and arrest.

11

Dated: 1? 

12

Respectfully submitted,

1?
Veronica Barba
Michael Kaufman

Eva Bitran

Attorneys for Mr. Solano