Gilmar Vasconcelos-De Santana v. Attorney General United States , 635 F. App'x 24 ( 2015 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3206
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GILMAR VASCONCELOS-DE SANTANA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
_____________
On Petition for Review of an Order
of the Board of Immigration Appeals
(Agency No. A201-112-484)
Immigration Judge: Steven A. Morley
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
September 8, 2015
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Before: VANASKIE, NYGAARD, and RENDELL, Circuit Judges.
(Opinion Filed: December 17, 2 015)
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OPINION*
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VANASKIE, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
1
Petitioner Gilmar Vasconcelos-De Santana presents three issues for our
consideration: (1) whether the Board of Immigration Appeals (“BIA”) abused its
discretion in denying his request to remand the matter to the Immigration Judge (“IJ”) to
permit him to seek relief based upon Oliva-Ramos v. Attorney General, 694 F.3d 259 (3d
Cir. 2012), decided after the IJ ordered Vasconcelos’ removal; (2) whether the BIA
sufficiently reviewed the record in summarily affirming the IJ’s ruling; and (3) whether
the IJ abused his discretion in denying Vasconcelos’ fourth motion for a continuance.
For the reasons discussed below, we will deny the petition for review.
I.
Vasconcelos, a native and citizen of Brazil, entered the United States sometime
prior to June 24, 2011, when the Department of Homeland Security served him with a
Notice to Appear (“NTA”), charging him as a removable alien present in the country
without having been admitted or paroled. See Immigration and Nationality Act §
212(a)(6)(A)(i), 8 U.S.C. § 1182(a)(6)(A)(i). On August 11, 2011, Vasconcelos appeared
before the IJ and sought a continuance so he could seek legal representation. The IJ
granted his request and adjourned the proceedings.
On November 10, 2011, Vasconcelos appeared before the IJ with counsel,
admitted the charges in the NTA, and conceded removability. The IJ then continued the
hearing at Vasconcelos’s request so that he could pursue prosecutorial discretion and
reset the hearing for March 8, 2012. At the March 8, 2012 proceeding, Vasconcelos
informed the IJ that he had only recently submitted his request for prosecutorial
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discretion. The IJ again granted a continuance, rescheduling the hearing for August 9,
2012. At the August 9, 2012 hearing, counsel informed the IJ that the Government had
denied the request for prosecutorial discretion. He then sought a further continuance so
that Vasconcelos could seek advice from another attorney. The IJ denied that request
and, based on Vasconcelos’ admissions, sustained the charges in the NTA and found him
removable.
On August 31, 2012, Vasconcelos filed a notice of appeal with the BIA. On
December 26, 2012, he moved to remand the matter to the IJ, contending that our recent
decision in Oliva-Ramos was applicable to his case and should be considered by the IJ.1
On June 9, 2013, the BIA summarily dismissed Vasconcelos’ appeal. Observing that
Vasconcelos had not filed a motion to suppress in the proceedings before the IJ and failed
to present any evidence to suggest that his circumstances were even remotely similar to
those presented in Oliva-Ramos, the BIA denied his motion to remand. Concluding that
Vasconcelos had conceded the facts that warranted his removal, the BIA affirmed the
removal order. Vasconcelos timely appealed.
II.
We have jurisdiction under 8 U.S.C. § 1252(a)(1) to review a final order of the
1
In Oliva-Ramos, we held that the exclusionary rule applies in removal
proceedings “where constitutional violations by immigration officers are ‘widespread’ or
evidence has been obtained as a result of ‘egregious violations of Fourth Amendment or
other liberties that might transgress notions of fundamental fairness and undermine the
probative value of the evidence obtained.’” 694 F.3d at 272 (quoting INS v. Lopez–
Mendoza, 468 U.S. 1032, 1050–51 (1984)).
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BIA. We review the BIA’s denial of a motion to remand for an abuse of discretion. See
Zheng v. Att’y Gen., 549 F.3d 260, 264–65 (3d Cir. 2008); Korytnyuk v. Ashcroft, 396
F.3d 272, 282 (3d Cir. 2005). In considering the BIA’s affirmance of an IJ’s ruling, we
exercise plenary review of the BIA’s legal determinations and assess its factual findings
for substantial evidence. Demandstein v. Att’y Gen., 639 F.3d 653, 655 (3d Cir. 2011).
III.
Vasconcelos initially contends that the BIA abused its discretion in denying his
motion to remand because Oliva-Ramos was decided after his removal hearing before the
IJ and warrants relief here. That opinion, however, simply applied the long-standing
precedent set out in INS v. Lopez–Mendoza, 468 U.S. 1032 (1984), where “eight Justices
agreed that the exclusionary rule should apply in deportation/removal proceedings
involving egregious or widespread Fourth Amendment violations.” Oliva-Ramos, 694
F.3d at 271. As the BIA correctly explained, our recent interpretation of Lopez-Mendoza
“did not create a fundamental change in law[.]” App. 3. Vasconcelos was free to file a
motion to suppress in his four appearances before the IJ, but did not do so. And even on
appeal to the BIA, he presented no facts that would support remand.2 Counsel’s bald
2
In Oliva-Ramos, there was evidence that government agents failed to obtain
proper consent to enter the residence where the petitioner was sleeping, arrested him
without probable cause, and seized him without reasonable suspicion. No such evidence
has been proffered here. Nor has Vasconcelos sought to present evidence that fits within
the guidelines we suggested in Oliva-Ramos for purposes of assessing the egregiousness
of the government agents’ conduct, such as whether there were “intentional violations of
the Fourth Amendment,” whether the seizure itself was not only without plausible legal
grounds, but also “gross or unreasonable,” whether there had been “threats, coercion or
4
representation that Vasconcelos told counsel that he had sustained “treatment at the hands
of ICE” agents similar to that experienced by the alien in Oliva-Ramos is plainly
insufficient to warrant remand. See 8 C.F.R. § 1003.2(c)(1) (“A motion to reopen
proceedings shall state the new facts that will be proven at a hearing to be held if the
motion is granted and shall be supported by affidavits or other evidentiary material.”).
Accordingly, the BIA’s denial of the motion to remand was not “arbitrary, irrational, or
contrary to law.” Zheng, 549 F.3d at 265 (citation and quotation marks omitted).
Vasconcelos next contends that the BIA erred by failing to credit the favorable
evidence he presented to the IJ. The BIA, however, had no need to review such
evidence: Vasconcelos had conceded removability, admitted the charges contained in the
NTA, and did not seek asylum or withholding of removal. After Vasconcelos
acknowledged that he was removable, the IJ properly concluded that the Government had
met its burden on that issue. See Florez-de Solis v. INS, 796 F.2d 330, 333 (9th Cir.
1986) (“[I]f the alien concedes deportability . . . , the government’s burden on this issue is
satisfied.”); 8 C.F.R. § 1240.10(c) (“[T]he immigration judge may determine that
removability as charged has been established by the admissions of the respondent.”).
Vasconcelos then bore the burden of establishing his eligibility for adjustment of status,
which he did not attempt to do. We discern no error.
physical abuse,” and whether “seizures or arrests were based on race or perceived
ethnicity.” 694 F.3d at 279.
5
Vasconcelos also claims that the IJ abused his discretion in denying his fourth
motion for a continuance. Because that issue was not presented to the BIA, we lack
jurisdiction to consider it. Abdulrahman v. Ashcroft, 330 F.3d 587, 594–95 (3d Cir.
2003).
IV.
For the reasons discussed above, we will deny the petition for review.
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