Gonzalez-Ordonez v. Holder ( 2011 )

10-1318-ag
Gonzalez-Ordonez v. Holder
BIA
Brennan, IJ
A098 616 623
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.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 12th day of July, two thousand eleven.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
_______________________________________
EDUARDO ERNESTO GONZALEZ-ORDONEZ,
Petitioner,
v. 10-1318-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
FOR PETITIONER: H. Raymond Fasano, New York,
New York.
FOR RESPONDENT: Tony West, Assistant Attorney General:
Douglas E. Ginsburg, Assistant Director;
Lisa Morinelli, Trial Attorney, Office of
Immigration Litigation, United States
Department of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is DENIED.
Eduardo Ernesto Gonzalez-Ordonez seeks review of a March
8, 2010 order of the BIA affirming the September 17, 2008
decision of Immigration Judge (“IJ”) Noel A. Brennan, which
denied his motion to suppress evidence and found him removable
as charged. In re Gonzalez-Ordonez, No. A098 616 623 (B.I.A.
Mar. 8, 2010), aff’g No. A098 616 623 (Immig. Ct. N.Y.C. Sept.
17, 2008). We assume the parties’ familiarity with the
underlying facts and procedural history of this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented and modified by the BIA.
See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).
The applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,
513 (2d Cir. 2009).
As an initial matter, even if the BIA erred in denying
the motion to suppress, there was independent evidence of
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Gonzalez-Ordonez’s alienage sufficient to satisfy the
government’s limited burden. See Almeida-Amaral v. Gonzales,
461 F.3d 231, 234 (2d Cir. 2006) (“‘[T]he INS must show only
identity and alienage; the burden then shifts to the
respondent to prove the time, place, and manner of his
entry.’” (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1039
(1984)). In an affidavit submitted to the IJ in support of
the motion to suppress, Gonzalez-Ordonez conceded that he “did
not have legal status in this country.” J.A. at 164. See
Katris v. INS, 562 F.2d 866, 869 (2d Cir. 1977) (“[T]he
illegal arrest of an alien unlawfully in the United States
does not void a subsequent deportation order based on the
alien’s admission of his status at the hearing.”). In
addition, the government proffered two non-immigrant visa
applications filed by Gonzalez-Ordonez in 2000 and 2002, which
state that he is a citizen of Ecuador. See INS v. Lopez-
Mendoza, 468 U.S. at 1039 (“The ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding is
never itself suppressible as a fruit of an unlawful arrest,
even if it is conceded that an unlawful arrest, search, or
interrogation occurred.”). Because Gonzalez-Ordonez offered
no evidence that he was lawfully present in the United States,
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the BIA correctly upheld his removal.
In any event, the motion to suppress was correctly denied
because the initial stop and subsequent search were lawful.
Gonzalez-Ordonez’s claim that “there was no indication that
would lead the military officials to conclude that [he] was
not lawfully present,” Pet’r’s Br. at 9, was not raised below
and will not be considered by this court in the first
instance, see 8 U.S.C. § 1252(d)(1); Gill v. INS, 420 F.3d 82,
86 (2d Cir. 2005). Indeed, Gonzalez-Ordonez acknowledged in
his brief below that the officers at the Air Force base
“certainly had the right to suspect an alien with no proper
[identification] being physically present at their Base.”
J.A. at 52. Further, because Gonzalez-Ordonez fails to
challenge the BIA’s determination that the circumstances of
the stop and search were not egregious and did not undermine
the reliability of the evidence obtained, see Almeida-Amaral
v. Gonzales, 461 F.3d at 235, we deem this issue abandoned,
see Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.
2005) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on
appeal.” (internal quotation marks omitted)).
For the foregoing reasons, the petition for review is
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DENIED. As we have completed our review, any stay of removal
that the Court previously granted in this petition is VACATED,
and any pending motion for a stay of removal in this petition
is DISMISSED as moot. Any pending request for oral argument
in this petition is DENIED in accordance with Federal Rule of
Appellate Procedure 34(a)(2) and Second Circuit Local Rule
34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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