Guillen-Jimenez v. Holder ( 2014 )

13-2032
Cruz-Ramos v. Holder
BIA
Rocco, IJ
A088 938 300
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 20th day of May, two thousand fourteen.
5
6 PRESENT:
7 DENNIS JACOBS,
8 ROSEMARY S. POOLER,
9 Circuit Judges,
10 CHRISTINA REISS,*
11 District Judge.
12 _____________________________________
13
14 GREGORIO CRUZ-RAMOS,
15 Petitioner,
16
17 v. 13-2032
18
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 ______________________________________
23
24 FOR PETITIONER: Anne E. Doebler, Buffalo, New York.
25
26 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
27 General, Civil Division; Carl McIntyre,
*
Chief Judge Christina Reiss, of the United States
District Court for the District of Vermont, sitting by
designation.
1 Assistant Director, Office of
2 Immigration Litigation; Kevin J. Conway,
3 Trial Attorney, Office of Immigration
4 Litigation, United States Department of
5 Justice, Washington, D.C.
6
7 Petition for review of an order of the Board of Immigration
8 Appeals (“BIA”), dismissing the appeal from a decision of the
9 Immigration Judge (“IJ”).
10 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
11 DECREED that the petition for review is GRANTED and the case
12 REMANDED to the BIA for further proceedings consistent with this
13 order.
14 Petitioner Gregorio Cruz-Ramos seeks review of a BIA order
15 dismissing his appeal from the IJ’s denial of Cruz-Ramos’s motion
16 to suppress evidence and terminate proceedings. We assume the
17 parties’ familiarity with the underlying facts, the procedural
18 history, and the issues on appeal.
19 “When the BIA does not expressly adopt the IJ’s decision,
20 but its brief opinion closely tracks the IJ’s reasoning, this
21 Court may consider both the IJ’s and the BIA’s opinions for the
22 sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d
23 Cir. 2008) (internal quotation marks omitted). “We review the
24 agency’s factual findings for substantial evidence and questions
25 of law de novo.” Cotzojay v. Holder, 725 F.3d 172, 177 n.5 (2d
26 Cir. 2013) (citations omitted).
27
2
1 “[E]xclusion of evidence is appropriate . . . if record
2 evidence established . . . that an egregious violation that was
3 fundamentally unfair had occurred.” Almeida-Amaral v. Gonzales,
4 461 F.3d 231, 235 (2d Cir. 2006). “[I]f an individual is
5 subjected to a seizure for no reason at all, that by itself may
6 constitute an egregious violation, but only if the seizure is
7 sufficiently severe.” Id. “[E]ven where the seizure is not
8 especially severe, it may nevertheless qualify as an egregious
9 violation if the stop was based on race (or some other grossly
10 improper consideration).” Id.
11 “Pursuant to BIA precedent, a petitioner raising a question
12 about the admissibility of evidence must come forward with proof
13 establishing a prima facie case before the Government will be
14 called on to assume the burden of justifying the manner in which
15 it obtained the evidence.” Cotzojay, 725 F.3d at 178 (internal
16 quotation marks and brackets omitted). “Under this
17 burden-shifting framework, if the petitioner offers an affidavit
18 that ‘could support a basis for excluding the evidence in . . .
19 question,’ it must then be supported by testimony.” Id. (quoting
20 Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988)). “If
21 the petitioner establishes a prima facie case, the burden of
22 proof shifts to the Government to show why the evidence in
23 question should be admitted.” Id.
24
3
 1 The IJ required Cruz-Ramos to establish a prima facie case
2 for suppression before he could present testimony at a hearing.
3 See In re Gregorio Cruz-Ramos, No. A088 938 300 at 3 (Immig. Ct.
4 Buffalo, N.Y., Feb. 28, 2011) (“[T]he Court finds that the
5 respondent has failed to sustain his burden of establishing a
6 prima facie case of illegality.”). Cotzojay and BIA precedent,
7 however, indicate that “if the petitioner offers an affidavit
8 that could support a basis for excluding the evidence,” the
9 petitioner must be given the opportunity to present testimony in
10 order to make out a prima facie case. Cotzojay, 725 F.3d at 178
11 (emphasis added) (internal quotation mark omitted).
12 We therefore remand to the agency to decide, in the first
13 instance and under the correct standard, whether Cruz-Ramos’s
14 affidavit could support a basis for suppression and whether a
15 hearing is therefore required.1 Id. The agency’s analysis
16 regarding whether Cruz-Ramos merits a hearing on his suppression
17 motion should be based on the assertions in his affidavit and not
18 the evidence he sought to suppress, namely, the I-213 Record of
19 Deportable/Inadmissible Alien. See id.
1
Because we remand for further proceedings that may
augment the record, we decline to consider Cruz-Ramos’s
alternative claim for suppression based on allegedly egregious
violations of Department of Homeland Security regulations.
See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
rule courts and agencies are not required to make findings on
issues the decision of which is unnecessary to the results
they reach.”).
4
1 For the foregoing reasons, the petition for review is
2 GRANTED and the case is REMANDED to the BIA for further
3 proceedings consistent with this order. As we have completed our
4 review, any stay of removal that the Court previously granted in
5 this petition is VACATED, and any pending motion for a stay of
6 removal in this petition is DISMISSED as moot.
7 FOR THE COURT:
8 Catherine O’Hagan Wolfe, Clerk
9
10
5