Alejandro Ghysels-Reals vs U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12666 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 24, 2011
________________________ JOHN LEY
CLERK
Agency No. A089-231-237
ALEJANDRO GHYSELS-REALS,
lllllllllllllllllllll Petitioner,
versus
U. S. ATTORNEY GENERAL,
lllllllllllllllllllll Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(March 24, 2011)
Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Alejandro Ghysels-Reals, a native and citizen of Argentina, petitions this
court for review of the Board of Immigration Appeals’s (BIA) affirmance of the
Immigration Judge’s (IJ) order denying his motions to suppress the Form I-2131
and to terminate proceedings.
Ghysels-Reals entered the United States in October 2000 with authorization
to remain for a period not to exceed six months. In December 2009, while still in
the United States, Ghysels-Reals was detained by the police during a routine
traffic stop. As a result of the traffic stop, the Department of Homeland Security
served Ghysels-Reals with a Notice to Appear, charging him as removable for
remaining in the United States for longer than his visa permitted. Ghysels-Reals
filed a motion to suppress the evidence obtained during his detention as reflected
in the Form I-213, arguing that the traffic stop was illegal. The IJ denied his
motion and the BIA affirmed and dismissed his appeal, noting that the
exclusionary rule is generally not applicable in immigration proceedings. Further,
the BIA concluded that Ghysels-Reals failed to demonstrate that he was stopped
solely on the basis of his appearance, and thus he failed to show that suppression
was warranted.
Ghysels-Reals filed this petition for review, contending that 1) because the
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A Form I-213 or “Record of Deportable/Inadmissible Alien” is a form routinely
completed for aliens who illegally enter or are present within the United States and are stopped
by law enforcement. It contains personal information, including, inter alia, the date and place of
birth, familial information, the date and manner of entry into the United States, photographs,
fingerprints, and alien identification number.
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stop was unlawful, the government cannot meet its burden to prove his alienage
without Form I-213 and 2) that the Form I-213 should not be given any
evidentiary weight as it contains unsubstantiated hearsay statements. Upon review
of the record, the petition is denied.
I.
We review legal determinations of the BIA de novo, and review
“administrative fact findings under the highly deferential substantial evidence
test.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006). We must
affirm the decision of the BIA if it is “supported by reasonable, substantial, and
probative evidence on the record considered as a whole.” Id. (internal quotation
marks omitted). Under the substantial-evidence test, “we view the record in the
light most favorable to the agency’s decision and draw all reasonable inferences in
favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004)
(en banc). Thus, “[t]o conclude the BIA’s decision should be reversed, we must
find that the record not only supports the conclusion, but compels it.” Ruiz v.
Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (internal quotation marks omitted).
II.
The exclusionary rule is generally not applicable in immigration
proceedings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1044-51 (1984). Further,
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“the ‘body’ or identity of a defendant . . . in a criminal or civil proceeding is never
itself suppressible as fruit of an unlawful arrest, even if it is conceded that an
unlawful arrest, search, or interrogation occurred.” Id. at 1039. Moreover,
evidence obtained illegally can be used in deportation proceedings, unless the
violation was so “egregious. . . that [it] [ ] transgress[es] notions of fundamental
fairness and undermine[s] the probative value of the evidence obtained.” Id. at
1050.
Here, the BIA properly concluded that the traffic stop did not amount to an
egregious violation of Ghysels-Reals’s Fourth and Fifth Amendment rights, and
affirmed the IJ’s admission of the Form I-213. Nothing in the record suggests that
Ghysels-Reals was subjected to abuse, force, racial profiling, or other conduct that
rises to the level required for exclusion. Additionally, Ghysels-Reals failed to
present any evidence to support the contention that the information contained
within the Form I-213 was false or based upon coercion or duress. Because
Ghysels-Reals cannot establish any egregious constitutional violation, there is no
basis to apply the exclusionary rule. Therefore, the BIA properly affirmed the IJ’s
admission of the Form I-213. Accordingly, we deny Ghysels-Reals’s petition for
review.
PETITION DENIED.
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