Reyes-Basurto v. Holder

10-3600-ag
Reyes-Basurto v. Holder
BIA
Gordon-Uruakpa, IJ
A088 155 162
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
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 27th day of April, two thousand twelve.
5
6 PRESENT:
7 RALPH K. WINTER,
8 REENA RAGGI,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 JOSE REYES-BASURTO,
14 Petitioner,
15
16 v. 10-3600-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _______________________________________
22
23 FOR PETITIONER: Linda Kenepaske, New York, New York.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Douglas E. Ginsburg,
27 Assistant Director; Matthew B.
28 George, Trial Attorney, Office of
29 Immigration Litigation, United
30 States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED, that the petition for review
4 is DENIED.
5 Jose Reyes-Basurto seeks review of an August 9, 2010
6 order of the BIA, affirming the October 30, 2008 decision of
7 Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa, which,
8 following her July 31, 2008 denial of his motion to suppress
9 evidence and terminate his removal proceedings, ordered him
10 removed to Mexico. In re Reyes-Basurto, No. A088 155 162
11 (B.I.A. Aug. 9, 2010), aff’g No. A088 155 162 (Immig. Ct.
12 N.Y. City Oct. 30, 2008). We assume the parties’
13 familiarity with the underlying facts and procedural history
14 in this case.
15 Under the circumstances of this case, we have reviewed
16 both the IJ’s and the BIA’s opinions “for the sake of
17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
18 2008) (internal quotation marks omitted). The applicable
19 standards of review are well-established. See 8 U.S.C.
20 § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513
21 (2d Cir. 2009).
22 The central issue in this case is whether Reyes-Basurto
23 was entitled to the suppression of the Border Patrol records
2
1 and his I-140, both of which were in government databases
2 prior to his July 2007 arrest, but came to light, or were
3 “linked” to him, following his arrest. The agency made no
4 finding as to whether the arrest of Reyes-Basurto was an
5 egregious violation of his constitutional rights so as to
6 warrant suppression in removal proceedings. See Almeida-
7 Amaral v. Gonzales, 461 F.3d 231, 234-35 (2d Cir. 2006).
8 Instead, the agency found that the Border Patrol records and
9 the I-140 constituted sufficient evidence obtained
10 independently of the arrest to demonstrate Reyes-Basurto’s
11 alienage and removability, relying on United States v.
12 Crews, 445 U.S. 463 (1980). Reyes-Basurto argues that Crews
13 is not controlling here, and urges the Court to consider
14 instead Davis v. Mississippi, 394 U.S. 721 (1969). In
15 Davis, the Supreme Court held that fingerprint exemplars
16 obtained during a criminal defendant’s unlawful detention
17 were inadmissible and therefore could not link the defendant
18 to latent prints at the crime scene. See id. at 725-27. A
19 plurality in Crews distinguished Davis, writing: “Had it not
20 been for Davis’ illegal detention . . . his prints would not
21 have been obtained and he would never have become a suspect.
22 Here, in contrast, the robbery investigation had already
3
1 focused on [Crews], and the police had independent
2 reasonable grounds to suspect his culpability.” Crews, 445
3 U.S. at 476. Reyes-Basurto argues that, like Davis, he
4 would never have become a suspect but for the pre-dawn,
5 warrantless invasion of his home. To the contrary, because
6 the Government had pre-existing evidence in its databases
7 that established Reyes-Basurto’s alienage, he was at least a
8 “suspect” in regards to removability even before his arrest.
9 Reyes-Basurto further argues that United States v.
10 Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006), supports
11 his argument that his pre-existing records are suppressible
12 because they were “linked” to him as a result of an unlawful
13 arrest. Even if we were to follow the Tenth Circuit’s
14 reasoning in Olivares-Rangel, however, the instant case is
15 distinguishable in that there is no indication that the
16 Government obtained Reyes-Basurto’s Border Patrol records
17 and I-140 via his fingerprints. Moreover, even if but for
18 Reyes-Basurto’s unlawful arrest the Government would not
19 have asked his name and would not have run searches through
20 its databases to find records demonstrating his alienage,
21 suppression of the pre-existing records is not warranted on
22 that basis alone. See INS v. Lopez-Mendoza, 468 U.S. 1032,
4
1 1039 (1984) (holding that identity of defendant or
2 respondent is never suppressible as fruit of unlawful
3 arrest). Because the arrest did not lead to the creation of
4 new evidence of identity, such as fingerprints or
5 photographs, we have no reason to decide here whether such
6 evidence, when obtained for an investigative purpose, might
7 fall outside the holding in Lopez-Mendoza. See, e.g.,
8 United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir.
9 2007); United States v. Garcia-Beltran, 389 F.3d 864, 866-67
10 (9th Cir. 2004); but see, e.g., United States v. Bowley, 435
11 F.3d 426, 430–31 (3d Cir. 2006) (holding that Lopez-Mendoza
12 generally precludes suppression of identity evidence absent
13 egregious constitutional violation). Accordingly, the
14 agency did not err in finding that the Border Patrol records
15 and I-140 constituted independent evidence of Reyes-
16 Basurto’s alienage that was not subject to suppression.
17 For the foregoing reasons, the petition for review is
18 DENIED. As we have completed our review, any stay of
19 removal that the Court previously granted in this petition
20 is VACATED, and any pending motion for a stay of removal in
21 this petition is DENIED as moot. Any pending request for
22 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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