[00:00:00] Speaker 01:
Good morning.

[00:00:01] Speaker 01:
May it please the court?

[00:00:02] Speaker 01:
My name is Kari Hong.

[00:00:03] Speaker 01:
I'm appointed pro bono counsel from the Florence Project.

[00:00:06] Speaker 01:
I represent Petitional Ulysses Nova Galicia, whom I will refer to as Mr. Nova.

[00:00:13] Speaker 01:
I will reserve two minutes for rebuttal, and I will watch my time.

[00:00:17] Speaker 01:
I'm going to talk about three pathways by which this court can resolve this case, probable cause, particularly serious crime, and then cat.

[00:00:27] Speaker 01:
starting with probable cause.

[00:00:30] Speaker 01:
The government concedes that an anonymous tip on this record is insufficient to support probable cause because it only indicates that Mr. Nova had a criminal record.

[00:00:44] Speaker 01:
Or a hagi holds that negative searches from databases are also insufficient to support ISIS arrest and detention of a non-citizen.

[00:00:57] Speaker 01:
This, in combination, is enough for Mr. Nova to meet his burden to establish that the ICE officer's targeting detention and arrest was without probable cause.

[00:01:08] Speaker 01:
The burden then shifts to the government.

[00:01:11] Speaker 01:
to provide a lawful explanation for its actions.

[00:01:14] Speaker 01:
The government in its briefing offers post hoc speculation to explain how Mr. Innova's birth country has enough information.

[00:01:23] Speaker 01:
However, the report that the government cites in its appellate brief was created on June 27th, 2019.

[00:01:31] Speaker 01:
That is after

[00:01:33] Speaker 01:
the June 5th, 2019 arrest, and that place of birth came from the I-213 document itself.

[00:01:43] Speaker 01:
Second, on Forum 213, the two ICE officers only stated that they targeted Mr. Nova because, quote, an anonymous tip was that he was on parole.

[00:01:57] Speaker 01:
If the officers had believed he was born in Mexico or lacked a social security number, they would have put that into the reason as to why he, quote, came to the attention of ICE, unquote.

[00:02:07] Speaker 03:
Can I ask you on the tip?

[00:02:08] Speaker 03:
I mean, I think everyone agrees it's not sufficient.

[00:02:12] Speaker 03:
Is there at least anything to it, in the sense that ICE was contacted about somebody, the government seems to be indicating, we can infer from that, that they were contacted because there was questions about his immigration status, because that's who you contact if you have a question or concern about that.

[00:02:31] Speaker 01:
If the anonymous tip had been about his lawful status, that would have been enough.

[00:02:36] Speaker 01:
But on this record, it was related to the fact that he was on parole for a state criminal conviction.

[00:02:41] Speaker 03:
But how about just the fact of it going to ICE?

[00:02:44] Speaker 03:
Doesn't that itself suggest that there's some immigration-related reason for the tip being made?

[00:02:53] Speaker 01:
The case law says that has to be on the record.

[00:02:55] Speaker 01:
And the regulations also provide there have to be a specific, articulable fact that that actually exists.

[00:03:02] Speaker 01:
And Ora Hogby is a great example to show why the author of that tip, the person who provided the tip, is significant.

[00:03:11] Speaker 01:
Because on that record, the bank teller, Karen Moose, basically reported every single Nigerian customer

[00:03:19] Speaker 01:
to ICE and ask every single Nigerian customer to be investigated by ICE.

[00:03:25] Speaker 01:
That's why the U.S.

[00:03:26] Speaker 01:
Clark case says that anonymous tips are simply not enough.

[00:03:31] Speaker 01:
As another significant fact on this record is that before the immigration judge, the DHS attorney was given an opportunity to submit other evidence of alienage other than the I-213.

[00:03:46] Speaker 01:
This is at page AR-138.

[00:03:48] Speaker 01:
The DHS attorney said she'd look into it and never provide it.

[00:03:53] Speaker 01:
This is a very unique record, then, in which there is no other independent evidence of alienage other than Mr. Nova's statements that he provided after being approached by ICE.

[00:04:05] Speaker 04:
Can you address one of the database reports?

[00:04:09] Speaker 04:
I think it's AR 1659, and it seems to show, it says,

[00:04:14] Speaker 04:
place of birth, POB, MX, which I assume is Mexico, and then SOC, I guess, which I think is Social Security, it's blank.

[00:04:22] Speaker 04:
Why isn't that enough for probable cause, that someone was born outside the United States and doesn't have a Social Security number?

[00:04:29] Speaker 01:
At the bottom of the page, it says 6-27-2019, so that was produced after his arrest.

[00:04:36] Speaker 01:
There's no evidence showing that that information was obtained by the ICE officers before.

[00:04:42] Speaker 01:
Further, ICE, under the regulations and under the Fourth Amendment, have to have a specific, articulable fact before approaching him.

[00:04:52] Speaker 01:
And the ICE officers themselves, under their own testimony, never provided what that was.

[00:04:57] Speaker 01:
They only said it was an anonymous tip that he was on parole from the state court.

[00:05:02] Speaker 04:
I'm looking at the database here.

[00:05:04] Speaker 04:
I mean, I know its printout is there.

[00:05:06] Speaker 04:
Probably that's when it was printed out.

[00:05:07] Speaker 04:
But it seems like that information, it says date entered, 6-24-2004.

[00:05:10] Speaker 04:
It looks like based on its earlier arrest.

[00:05:15] Speaker 04:
And I understand that it's a later date.

[00:05:18] Speaker 04:
It's a database.

[00:05:18] Speaker 04:
You can't go back in time and print out a database as it existed back then.

[00:05:25] Speaker 04:
But it seems like, assuming this is valid information and set aside this was printed later,

[00:05:32] Speaker 04:
Would that be enough of a probable cause to say someone's not born in the United States and he or she lacks social security number?

[00:05:39] Speaker 01:
If the ICE officers had been aware of it and actually cited to it on this record, they never said that that was the case in the I-213, and the DHS attorney before the immigration judge never said it.

[00:05:52] Speaker 01:
And more important, here Mr. Nova's attorney issued a subpoena asking them to testify.

[00:05:59] Speaker 01:
She sent an email asking for them to be available.

[00:06:02] Speaker 01:
They refused.

[00:06:03] Speaker 01:
She then filed for subpoena, and again, the ICE officers refused.

[00:06:07] Speaker 01:
This is different from the Orahoge case, where the ICE officers testified as to what the reason for approaching him was.

[00:06:16] Speaker 01:
They had that opportunity.

[00:06:18] Speaker 01:
The question is simply, can they meet their burden of providing a lawful explanation?

[00:06:22] Speaker 01:
and they refused that opportunity, and that's what makes this fact significant, which is why post-ad hoc recreation of the record is not adequate when there was, they should have provided testimony under oath, and they refused to do so.

[00:06:38] Speaker 02:
This information was sufficient, but not in this case, because no one testified that they knew about it before the arrest.

[00:06:46] Speaker 02:
Is that what you're saying?

[00:06:47] Speaker 01:
Yes.

[00:06:47] Speaker 01:
On the I-213, the ICE officers never cited to it.

[00:06:50] Speaker 01:
They only said they relied on anonymous tip.

[00:06:53] Speaker 01:
And then before the immigration judge, they refused to provide any information.

[00:06:57] Speaker 01:
The DHS attorney also provided no independent evidence of alienage.

[00:07:02] Speaker 03:
Do you agree that the ICE officers did know he was born in Mexico?

[00:07:08] Speaker 01:
No, there's no showing of that.

[00:07:09] Speaker 01:
They never provided that in the I-213, and there's no showing that, and they refuse to testify.

[00:07:15] Speaker 03:
How about just from the fact, the fact of the databases that were searched though, like the NCIC and the TECS, wouldn't those show where he was born?

[00:07:25] Speaker 01:
The I-213 at 1824, immigration record, there is one notation that says negative.

[00:07:34] Speaker 01:
And then at 1825, there's the listing of the five records that were checked before they were issued.

[00:07:41] Speaker 01:
It says the two positive from the text and the NICLETS, that's the criminal databases.

[00:07:49] Speaker 01:
The three immigration databases, the CLAIM, the CIS, and the IRM all say negative.

[00:07:54] Speaker 01:
And as an officer of the court, after 20 years of these cases, I can verify that there are other situations where they will record a removal order of the record where they are from.

[00:08:05] Speaker 01:
There's more information usually on this database.

[00:08:08] Speaker 01:
But here, three negative hits.

[00:08:11] Speaker 01:
under Ora Hagi says that's simply not enough.

[00:08:18] Speaker 01:
And the reason why it's not enough is that there's a 30% error rate, that the databases are good for only 15 years, where records before 15 years are destroyed.

[00:08:27] Speaker 01:
And also Sanchez also recognizes is that every natural born citizens

[00:08:33] Speaker 01:
their information is not in this database.

[00:08:36] Speaker 01:
So that is why, under this court's case law, a negative database search alone is not enough for probable cause.

[00:08:47] Speaker 03:
And I guess the question I would ask is that, you know, it's not alone enough, but what about when you add to that searches of databases that indicated he was born in Mexico and the anonymous tip?

[00:08:59] Speaker 03:
When you kind of combine those, even if

[00:09:02] Speaker 03:
Each of them on their own is not sufficient.

[00:09:05] Speaker 03:
Could it be that all of them taken together are at least enough to establish probable cause?

[00:09:09] Speaker 01:
Not on this record, because the anonymous tip was only that he has a criminal conviction.

[00:09:13] Speaker 01:
That doesn't provide anything about alienage.

[00:09:16] Speaker 01:
The database about negative searches under the, or, excuse me for the pronunciation.

[00:09:23] Speaker 00:
The Ocase.

[00:09:23] Speaker 01:
Yes, the Ocase.

[00:09:24] Speaker 01:
That is not enough.

[00:09:25] Speaker 01:
And then third, about the proof of Mexico, there's no showing that the ICE officers themselves knew about that.

[00:09:31] Speaker 01:
There's a question about when that database report in the record even existed.

[00:09:35] Speaker 01:
And we know for a fact, though, that the ICE officers never relied on it.

[00:09:39] Speaker 01:
In the 213, they never said they knew that information.

[00:09:42] Speaker 01:
And before the immigration court, the DHS office, the attorney never said that.

[00:09:46] Speaker 01:
And they refused an opportunity to testify and actually quash the subpoena that would provide that.

[00:09:52] Speaker 03:
Let's assume you're right about all this.

[00:09:54] Speaker 03:
Then what happens?

[00:09:55] Speaker 03:
What's the remedy here?

[00:09:56] Speaker 01:
If you agree with me, the proper remedy under the O case is termination.

[00:10:02] Speaker 01:
Under Sanchez, they were given an opportunity on remand, but here, by contrast, they quashed the subpoena.

[00:10:10] Speaker 01:
They had that opportunity already, and they refused to take advantage of it.

[00:10:14] Speaker 01:
So under the O case, termination is proper.

[00:10:17] Speaker 01:
and the court does not need to reach any other issue if it agrees with me on these matters.

[00:10:24] Speaker 01:
If the court disagrees, we have the particular serious crime and the cat claim.

[00:10:28] Speaker 01:
On the particular serious crime issue, the IJ claimed there was no evidence that Mr. Nova mental illness existed before August 2018.

[00:10:38] Speaker 01:
When that was brought before the BIA, the BIA said, well, sure, the expert recorded that his psychosis started in 2016, but the BIA can ignore expert evidence.

[00:10:48] Speaker 01:
But we have more than just the expert report.

[00:10:51] Speaker 01:
What we have is jail records from August 17, 2016 that shows psychosis from November 8 to November 12, 2016.

[00:11:01] Speaker 01:
We have medical records from the USC hospital reported that he was hearing voices.

[00:11:07] Speaker 01:
That's at 1042.

[00:11:08] Speaker 01:
He was arrested and two days later the jail officials themselves sent him back to the medical center because he was acting erratically.

[00:11:21] Speaker 04:
the issue of the databases.

[00:11:23] Speaker 04:
I mean, shouldn't we, if we're not, the I-213 doesn't mention whether they checked the database.

[00:11:28] Speaker 04:
Isn't there more prudent course, remand it back and figure that out?

[00:11:34] Speaker 04:
Because I-213 may not mention it, but it doesn't say we only relied on the tip and we didn't do anything else.

[00:11:40] Speaker 04:
Shouldn't we remand that and get a better factual record on that?

[00:11:44] Speaker 01:
When this was before the IJ, that is the remedy that Mr. Innova's attorney asked for and actually went so far as to requesting a subpoena.

[00:11:53] Speaker 01:
The DHS attorney opposed the motion to terminate, opposed the subpoena, and opposed all efforts to have those attorneys or ICE officers testify.

[00:12:04] Speaker 01:
The government has to be held to its choices.

[00:12:07] Speaker 01:
The government had an opportunity to develop the record as it has in the other cases.

[00:12:12] Speaker 01:
Here, the record or the government refused to do so, which is why it is inefficient and a waste of resources to send this back down to let them have a do-over, which they actively opposed and refused to do before.

[00:12:25] Speaker 02:
For the remedy in the case, does it matter whether the violation was egregious or not?

[00:12:33] Speaker 02:
And was there no finding on that?

[00:12:35] Speaker 01:
Yes, Your Honor, for egregious, the standard under the Ninth Circuit case law simply did the officers know that they lacked probable cause or would a reasonable officer believe that they didn't have a probable cause to approach Mr. Nova in these circumstances?

[00:12:51] Speaker 02:
And there's no finding on that at this point.

[00:12:53] Speaker 01:
And so if you disagree with me that the government should have another opportunity, we would not oppose remand in that circumstances.

[00:12:59] Speaker 03:
Does the egregious test apply to the regulatory violation?

[00:13:04] Speaker 01:
Yes, and I don't mean to misstate my brother's position, but I think we're both in agreement that the regulatory standard in the Fourth Amendment are the same in this context as the regulations are codifying the Fourth Amendment.

[00:13:17] Speaker 01:
And under the case law, we do have, first of all, did the violation occur and was it egregious to determine what the remedy is?

[00:13:27] Speaker 02:
So if it were remanded, you would argue that the violation was egregious, correct?

[00:13:32] Speaker 01:
Well, at that point, the officers would then have a test opportunity to testify, which they refused before, and based on what their testimony was, would determine what the next steps in the argument would be.

[00:13:45] Speaker 03:
Presumably, you would say, well, this whole, we shouldn't even get to this egregiousness issue because the government essentially forfeited a way of this by its conduct before the IJ, but if we get past that, there's an egregiousness question.

[00:14:00] Speaker 01:
Yes, your honor.

[00:14:01] Speaker 01:
I see two different pathways for the court to resolve it.

[00:14:04] Speaker 01:
I mean, they could say the government had a chance and therefore terminations proper.

[00:14:09] Speaker 01:
But if the court disagrees and wants to be more prudent, they could remand it and then let the ICE officers testify as to what information they had prior to the arrest.

[00:14:18] Speaker 02:
If they're willing.

[00:14:20] Speaker 01:
But then that would then foreclose the issue.

[00:14:22] Speaker 01:
If they refuse to testify, then they absolutely wouldn't meet their burden.

[00:14:29] Speaker 01:
And if there are no further questions.

[00:14:32] Speaker 04:
Great, I think you have 45 seconds, but I'll give you two minutes.

[00:14:34] Speaker 01:
Thank you.

[00:14:34] Speaker 00:
May it please the court, Robert Tennyson for the government.

[00:14:46] Speaker 00:
I think a lot of this can be just set aside by Gonzalez.

[00:14:50] Speaker 00:
I mean, it's blackmailer law that probable cause can be established by reference to a database unless that database unless that database or set of databases is unreliable.

[00:15:00] Speaker 00:
And it's up to the petitioner to show unreliability of those databases.

[00:15:06] Speaker 00:
ICE and the officers from ICE in the I-213 said that based upon, they checked the databases and based upon the five databases they checked, CIS claims, TEX, NCIC, and I guess it's what, PQR, which is the Person Centric Query System, so PCQS.

[00:15:26] Speaker 00:
Um, checking those five databases, they established identity, uh, alien, inch, remove ability and probable cause flat statement.

[00:15:34] Speaker 00:
Um, and that is, uh, afforded some production of reliability, but they checked the databases.

[00:15:40] Speaker 00:
They said they found probable cause from it.

[00:15:42] Speaker 00:
And unless the petitioner was able to come in and establish in some way, form or fashion, the unreliability of those databases, either in his specific case by saying, look, I'm an LPR or look, I am a citizen of the United States or some other form of status or alternatively come in and say, provided evidence, specific evidence, uh, that those databases were unreliable.

[00:16:04] Speaker 00:
And by unreliable, I don't mean simply that, you know, certain.

[00:16:06] Speaker 00:
that after a certain period of time records fall out say 15 years with CIS or that there are occasional cases in which ICE gets results from looking at the databases that look as though they do not form a basis for an arrest but that consistently using those databases there is no reliability that those databases do not show that

[00:16:33] Speaker 00:
that a sufficient number of individuals are being picked up who do have status or citizenship, then those databases are reliable under Gonzales.

[00:16:43] Speaker 00:
And so the fact that the immigration officers checked those databases, those databases came back and said there was a basis for them to what?

[00:16:54] Speaker 00:
To arrest the petitioner in this case.

[00:16:57] Speaker 00:
In the absence of any question as to those reliability or any serious questions with regard to those reliability the petitioner put forward without we your position basically is we don't need to know.

[00:17:06] Speaker 03:
What those databases showed or would have showed you I mean other than the representation that these are the types of databases that will tell you whether somebody is likely here legally or not that is correct your honor.

[00:17:20] Speaker 03:
What what case?

[00:17:22] Speaker 00:
I think it's what 976 F third and I can't remember the remainder of it, but it's Gonzalez versus US ice.

[00:17:32] Speaker 00:
It's a detainer case in fact.

[00:17:35] Speaker 00:
And it was a case in which there was a class action challenge against detainers that were being used by ICE, that they were relying on these various databases.

[00:17:45] Speaker 00:
And they had 16 databases.

[00:17:46] Speaker 00:
And contained among them were CIS claims, both claims three and four, claims generally, kind of fall under, they both fall under that heading.

[00:17:56] Speaker 00:
TEX, NCIC, and some others, including EOR databases and the like.

[00:18:04] Speaker 00:
And the district court judge found that I put in place an injunction against ICE using those databases to detain individuals, to put in place detainers of individuals who were either being held in jails or being held in prisons.

[00:18:23] Speaker 00:
to prevent them, to keep them from issuing the detainers because there was no probable cause behind them.

[00:18:29] Speaker 00:
And part of the reason why, at least with regard to one of the classes, was that those databases did not give rise to probable cause.

[00:18:36] Speaker 00:
This court overturned the district court, finding that the district court's analysis of those databases wasn't sufficient to impugn the, at that point, was not sufficient to impugn the reliability of those databases.

[00:18:50] Speaker 00:
that in fact what the district court had to do and what the district court had to establish was that you had to have and that you had to establish there was a sufficient error rate, an error rate sufficiently high that it would undermine the reliability of those databases to generate probable cause.

[00:19:11] Speaker 00:
It didn't say how high that needed to be and it sent it back to the district court to determine

[00:19:16] Speaker 00:
you know, whether or not those databases were or were not reliable.

[00:19:21] Speaker 00:
And the district court only analyzed a handful of those databases, not all of them.

[00:19:25] Speaker 04:
Can you address, in the government's brief in referring to the NCIC database printing, AR 1659, the language is a little bit cagey.

[00:19:35] Speaker 04:
It says what appears to be NCIC.

[00:19:38] Speaker 04:
I mean, can you explain that?

[00:19:39] Speaker 00:
So NCIC printouts kind of look a particular way.

[00:19:44] Speaker 04:
Is this NCIC printout here what we have?

[00:19:46] Speaker 00:
It looks like it would be an NCIC printout, but the problem is is that we don't have the, it's, what the printout is of is redacted.

[00:19:54] Speaker 00:
So it looks like it's an NCIC printout, but I can't tell you for certain because I don't know.

[00:20:01] Speaker 00:
So based, that would mean, you know, at best I can say it looks like one, I can't tell you that it necessarily is one because I don't have that information across the top.

[00:20:12] Speaker 00:
It's based upon other ones that I've seen in other cases, but

[00:20:16] Speaker 03:
I take your position would then be, but it doesn't even matter at all because we're working with a database that's presumptively reliable.

[00:20:23] Speaker 00:
Right, exactly.

[00:20:24] Speaker 00:
And the NCIC printout anyway would tell us what, would give us what the Arizona State Police had put into the record, which would include his birthplace in Mexico.

[00:20:37] Speaker 00:
So, or, and the lack of a social security number.

[00:20:40] Speaker 00:
So that would turn up anyway in the NCIC

[00:20:43] Speaker 00:
printout with Regardless, because that's part of the information that's compiled by the NCIC.

[00:20:49] Speaker 04:
Can you address, your friend on the other side suggested that the IC agents didn't actually consult the databases.

[00:20:55] Speaker 04:
It's maybe a factual issue in what's in the record.

[00:20:58] Speaker 04:
Can you address that?

[00:20:59] Speaker 00:
Yes, in the I-213 expressly.

[00:21:02] Speaker 00:
So there are two places in which databases are mentioned in the I-213.

[00:21:07] Speaker 00:
There is one set of databases that respond with some being negative and a couple of them being positive.

[00:21:13] Speaker 00:
And that set of databases, there's a second set of databases in the narrative itself that were consulted for the basis of probable cause.

[00:21:21] Speaker 00:
I believe that's, we know which ones were consulted prior to the arrest because those are the ones in the negative.

[00:21:27] Speaker 00:
I mean, sorry, those are the ones in the narrative.

[00:21:30] Speaker 00:
The other five databases later that are listed, I believe are ones that were consulted after the arrest and they ran once they had him in their custody.

[00:21:41] Speaker 00:
So if you look, it's on, I think it's the first page or maybe the first page of the I-213 or maybe the second page.

[00:21:48] Speaker 00:
And then the last page of the narrative, it's a sentence right at the very bottom of that narrative.

[00:21:54] Speaker 03:
In your experience with these I-213s, I'll ask your opposing counsel to this, how does this rank in terms of the thinness of the basis for saying that this person was not here, not present here lawfully?

[00:22:09] Speaker 03:
Is there usually more to it than what we see here?

[00:22:12] Speaker 00:
It depends, because every one of these cases is different.

[00:22:17] Speaker 00:
Sometimes I see ones that are

[00:22:18] Speaker 00:
really, really long.

[00:22:19] Speaker 00:
And some of these are pretty short, essentially.

[00:22:23] Speaker 00:
Oftentimes, it's someone who's encountered, say, for example, on the border or someone who's encountered and picked up and they give this lengthy statement once they've been picked up at the border.

[00:22:33] Speaker 00:
And that's going to be a different type of situation than someone who's been picked up through a database.

[00:22:40] Speaker 00:
I honestly haven't paid too much attention to any of the

[00:22:46] Speaker 00:
And I haven't seen that many of the database, well, the database I-213s, because those haven't come up as issues, so I haven't really attended to them, if that makes sense.

[00:23:00] Speaker 03:
Why didn't the ICE officers testify or why was the government opposing the subpoena before the IJ?

[00:23:06] Speaker 00:
I think usually ICE opposes these subpoenas.

[00:23:09] Speaker 00:
It's hard to get the officers in.

[00:23:10] Speaker 00:
The officers are generally involved in other enforcement activities.

[00:23:16] Speaker 00:
I think they would prefer not to unless they're required to by the immigration court.

[00:23:21] Speaker 00:
That's generally the case, and they think that there's a presumption of administrative regularity that the I-213s can speak for themselves.

[00:23:34] Speaker 00:
ICE officers were required to come in and testify for every I-213.

[00:23:38] Speaker 00:
They think that would be disruptive to the ability of ICE officers to generally carry on their administrative functions.

[00:23:45] Speaker 02:
Presumably, the IJ is not going to ask for that testimony in every case, only when they think they really need it, which points out in this case, I think, the difficulty of really

[00:23:55] Speaker 02:
understanding how the databases that were consulted could establish probable cause, presumably they could have helped with that understanding before the IJ.

[00:24:06] Speaker 00:
They definitely could have helped with the understanding, Your Honor, but we don't have to go that far.

[00:24:10] Speaker 00:
I mean, unless we have some basis to believe that in this case, or generally, those databases are not reliable,

[00:24:21] Speaker 00:
For determining whether or not someone whether or not they're an individual has alienation is removable.

[00:24:30] Speaker 00:
Then we don't have to go.

[00:24:32] Speaker 00:
We don't have to dig down to to discover what that is.

[00:24:35] Speaker 03:
What is the significance of the negative under

[00:24:40] Speaker 03:
on a few of these records checked.

[00:24:42] Speaker 00:
So it's interesting, like CIS is this database, if I remember correctly, of people who have filed for benefits with USCIS.

[00:24:55] Speaker 00:
I don't believe it can tie into naturalization, but it contains things like various forms of non-immigrant status, lawful permanent resident status.

[00:25:01] Speaker 00:
All of those kinds of things are contained in this broader database.

[00:25:05] Speaker 00:
And so getting a negative from that database, like CIS, tells you that someone has not sought a benefit before USCIS, or claims someone has not sought naturalization before USCIS.

[00:25:20] Speaker 00:
The inference from those databases is someone has not sought or obtained lawful status.

[00:25:27] Speaker 00:
They don't tell you whether or not, they don't necessarily tell you whether or not someone is here or not.

[00:25:33] Speaker 00:
Or they don't tell you whether someone who is a citizen, for example, that person would never have

[00:25:38] Speaker 00:
would never come up against CIS or claims, because unless they're seeking a certificate of citizenship, they would never appear in claims because that's not what claims covers.

[00:25:50] Speaker 00:
Whereas NCIC may tell you that someone is born in Mexico if a state has recorded that information, or might tell you that someone doesn't have a social security number if a state records that information.

[00:26:01] Speaker 00:
And so compiling this information together, even if you have negative,

[00:26:05] Speaker 00:
The fact that you have a negative with CIS or claims indicates person hasn't sought lawful status or doesn't have lawful status.

[00:26:12] Speaker 00:
The other side is the criminal databases indicate can tell you where a person is born and you can sort of add that together to tell you whether an individual is in the coyote, was born a prod, is in the country with a social security number or some indication that they might have citizenship in the United States and that they haven't sought any lawful status.

[00:26:32] Speaker 00:
You put that together and that would seem to give you the answer to whether or not you have probable cause in a particular case.

[00:26:39] Speaker 04:
Going back to the I-213 form, your base is to say that it refers to that they consulted the databases, the line that says immigration record negative, so that would suggest they looked at the database.

[00:26:50] Speaker 04:
Is that what it is?

[00:26:51] Speaker 00:
I think so you have to they there's two different places where they're looking and those databases aren't co-extensive the ones that they look at before and after the ones they look at before are the ones that they rely on but those databases are CIS before you do that but that as reflected in the form is the line that says immigration record and it says negative on the I-213 the first form is that what you're is that what you're referring to that's what I based okay

[00:27:17] Speaker 03:
I thought you were referring to the part that says records checked and then listen that one.

[00:27:21] Speaker 00:
Yes, your honor.

[00:27:22] Speaker 00:
That's a yes.

[00:27:23] Speaker 00:
Yes, your honor.

[00:27:24] Speaker 03:
I mean, immigration negative.

[00:27:25] Speaker 03:
I immigration record negative.

[00:27:27] Speaker 03:
I took to be just a conclusion that they reach not necessarily the reason they gave.

[00:27:33] Speaker 00:
Right.

[00:27:33] Speaker 00:
It just means they haven't have it.

[00:27:34] Speaker 00:
They don't have any records of him.

[00:27:37] Speaker 03:
What about the anonymous tip?

[00:27:38] Speaker 03:
What work does that do here?

[00:27:40] Speaker 00:
So anonymous tips on their own, standing alone, would be problematic.

[00:27:46] Speaker 00:
I think that the anonymous tip, as far as giving a basis for the database check, look, as you said, Your Honor, if you're calling an ICE hotline to tell someone about an individual who has left prison and you give them a name and so on and so forth, it's pretty, I believe it's implicit in calling the ICE hotline that

[00:28:07] Speaker 00:
You're reporting someone you believe not to have lawful status in the United States.

[00:28:10] Speaker 00:
Or at least that there's some reason to go and, you know, maybe go and check on this at the very least.

[00:28:16] Speaker 00:
And that's all that we take the anonymous tip.

[00:28:19] Speaker 00:
That's the value of the anonymous tip.

[00:28:22] Speaker 00:
Is that it just as a, it simply provokes ICE to go in a particular direction.

[00:28:28] Speaker 00:
And is some indication that someone thinks there's some basis

[00:28:32] Speaker 00:
for ICE to go forward and look into an individual as to whether or not they are lawfully present in the U.S.

[00:28:37] Speaker 00:
What about the O case?

[00:28:41] Speaker 00:
I think, if I'm remembering correctly, I don't think that impugns this, the decision here.

[00:28:50] Speaker 00:
If I remember correctly,

[00:28:52] Speaker 00:
That involved people who were actually, that ICE would be called based upon Nigerian individuals, and then they would go and investigate the, they would basically go and investigate the individuals themselves.

[00:29:09] Speaker 00:
And it seems that there was a much more, how to put it,

[00:29:16] Speaker 00:
that the anonymous tip was the basis for them arresting and going forward from there, largely was the precipitating factor, or was the overwhelming factor, whereas here, this is sort of, you have these database checks on the other side.

[00:29:34] Speaker 00:
And really, even if the tip itself has problematic

[00:29:41] Speaker 00:
aspects.

[00:29:43] Speaker 00:
ICE can receive tips, all the anonymous tips, regularly.

[00:29:48] Speaker 00:
It can't just rely on the anonymous tips.

[00:29:50] Speaker 00:
And the reliance on the database itself alone provides the sufficient basis for probable cause here.

[00:30:00] Speaker 00:
If the court has no other questions for me, or doesn't have any questions about any other aspects of the case, the government will rest.

[00:30:07] Speaker 04:
Great.

[00:30:07] Speaker 04:
Thank you.

[00:30:15] Speaker 01:
I have two points.

[00:30:18] Speaker 01:
First, at page 15, 16, and 17 of my opening brief, that's where I cite the Gonzales case and actually cite it to support Mr. Nova's position.

[00:30:28] Speaker 01:
That's where there's a breakdown of the three different databases, and significantly the district court says, quote, these databases do not provide indicia of citizenship or to establish probable cause for removal.

[00:30:43] Speaker 01:
That's at page 15 of the opening brief.

[00:30:47] Speaker 01:
That part was overturned on different grounds that was not rebuked by this court.

[00:30:53] Speaker 01:
The second point is on the I-213.

[00:30:57] Speaker 01:
Again, as an officer of the court, I can verify that typically the immigration history would show if there's a prior removal order, and that is enough for probable cause.

[00:31:09] Speaker 01:
The claim negative and the CIS negative usually will have the date of the person's first entry into the United States and the manner of their entry, which is why it's so significant this record simply has no data.

[00:31:24] Speaker 01:
And under the O case, that is where the Ninth Circuit is very clear that

[00:31:30] Speaker 01:
The absence of any record of a person's entry into the United States from the INS computer system did not provide an additional basis to suspect that they were illegal alien rather than a legal alien or a U.S.

[00:31:43] Speaker 01:
citizen.

[00:31:47] Speaker 01:
There are no further questions.

[00:31:49] Speaker 03:
Just quickly, how do you address the portion of the Ninth Circuit decision in Gonzales that your friend was mentioning about reliance on presumptively reliable databases?

[00:32:01] Speaker 01:
We don't have an issue with the reliability of the databases, but for Mr. Nova, they have to show what's in it.

[00:32:09] Speaker 01:
And here, when there are simply, this is where it's controlled by the O case, when you have three negative hits with no further information on this record, there's no specific articulable fact.

[00:32:22] Speaker 01:
And that is the standard under the regulations and under the Fourth Amendment that was violated.

[00:32:28] Speaker 04:
Great, thank you both for the helpful arguments.

[00:32:31] Speaker 04:
Case has been submitted and we are recessed for the day.