8/14/2019 Order of Suppression - Cervantes-Valerio (BIA, Oct. 2, 2009)

1/4

U.S. Department of Justice .Executive Office for Immigration RevIewDecision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Files:

Inre:

Memphis, TN

ROBERTO CERVANTES-VALERIOJOSE LUIS CERVANTES-VALERIOIN REMOVAL PROCEEDINGSAPPEAL

Date:

ON BEHALF OF RESPONDENTS: Elliott Ozment, EsquireON BEHALF OF DHS:

APPLICATION: Termination

John F. Cook, IIAssistant Chief Counsel

OCT - 2 ZGG9

The respondents appeal from an Immigration Judge's decision dated January 15,2008, orderingthem removed to Mexico after denying their motion to reconsider or clarify an order datedNovember 21, 2007, which denied their motion to suppress evidence and terminate proceedings.The appeal will be sustained in part and dismissed in part; the record will be remanded to theImmigration Court for additional proceedings.

We review the findings of fact, including the determination of credibility, made by theImmigration Judge under a "clearly erroneous" standard. See 8 C.F .R. 1003.1 (d)(3)(i). We reviewall other issues, including whether the parties have met the relevant burden ofproof, and issues ofdiscretion, under a de novo standard. See 8 C.F.R. 1003.1 (d)(3)(ii); Matter ofA-S-B-, 24 I&NDec. 493 (BIA 2008); Matter ofV-K-, 24 I&N Dec. 500 (BIA 2008).We will remand the record to the Immigration Court for further proceedings. The respondentscontend that the Immigration Judge erred in denying their motion to suppress evidence and terminateproceedings. Such motion sought to suppress each of the respondents' Form 1-213s (Record ofDeportabiellnadmissible Alien), and alleged that information contained in their Form I-213sregarding their identity and alienage was improperly obtained by immigration officials who lackeda "reasonable suspicion" sufficient to support a lawful apprehension of the respondents. Therespondents further argue that the Immigration Judge violated their due process rights by failing tohold an evidentiary hearing on the motion to suppress evidence pursuant to Matter ofBarcenas, 19I&N Dec. 609 (BIA 1988).Although the Immigration Judge denied the motion to suppress, he did not rule on whetherthe admission of the documents was fundamentally fair, whether the respondents had beenlawfully stopped, or whether the respondents established the existence of an egregious violation ofthe Fourth Amendment. The United States Supreme Court has held that the exclusionary rule does

8/14/2019 Order of Suppression - Cervantes-Valerio (BIA, Oct. 2, 2009)

2/4

not generally apply in civil removal (formerly deportation) hearings. See INS v. Lopez-Mendoza,468 U.S. 1032 (1984); see also Matter ofSandoval, 17 I&N Dec. 70 (BIA 1979). However, theSupreme Court indicated that the exclusionary rule may apply ifthere are egregious violations of heFourth Amendment which transgress notions of fundamental fairness. See INS v. Lopez-Mendoza,supra, at 1032; see, e.g., Matter ofGarcia, 17 I&N Dec. 319 (BIA 1980) (alien made prima facieshowing that admissions were involuntarily given; INS presented no contrary evidence; proceedingsterminated); Matter ofTaro, 17 I&N Dec. 340 (BIA 1980).

The Immigration Judge properly determined that an alien may not suppress his or her identity( lJ. at 2). See INS v. Lopez-Mendoza, supra, at 1039-40; United States v. Navarro-Diaz, 420 F.3d581,584-88 (6th Cir. 2005). However, this finding does not address the respondents' admission ofalienage on the 1-213s, which is distinct from identity and does not address whether alienage maybe suppressed. As discussed further below, the respondents did not plead to the notice to appear, andno testimony has been taken regarding their alienage. See 8 C.F.R. 1240.10(c), (d).

As correctly stated by the Immigration Judge, "[ijfa respondent wishes to argue that an egregiousFourth Amendment violation has occurred such that evidence should be excluded in immigrationproceedings, the respondent first must establish a prima facie case of the violation." U. at 2 (citingMatter ofBarcenas, 19 I&N Dec. 609 (BIA 1988. We have consistently held that, absent anyevidence that a Form 1-213 contains information that is inaccurate or obtained by coercion orduress, that document, although hearsay, is inherently trustworthy and admissible. See, e.g., Mattero fPonce-Hernandez, 22 I&N Dec. 784 (BIA 1999); Matter ofBarcenas, supra; Matter ofBurgos,15 I&N Dec. 278, 279 (BIA 1975); see also Matter ofRamirez-Sanchez, 17 I&N Dec. 503 (BIA1980); Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971) ("[Aj mere demand for a suppressionhearing is not enough to cause one to be held.").

Here, the respondents dispute the accuracy of the 1-213 and the parties disagree about thecircumstances surrounding the respondents' encounter with immigration officials and local police.The respondents have asserted facts which, if true, potentially may support a basis for excluding theevidence in question. Thus, a remand is appropriate to investigate the manner in which the evidencewas obtained, including whether "reasonable suspicion" existed to stop the respondents andwhether the circumstances support the respondents' contention that an egregious Fourth Amendmentviolation has occurred. See Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (reasonablesuspicion "requires more than a mere hunch, but is satisfied by a likelihood of criminal activity lessthan probable cause, and falls considerably short of satisfYing a preponderance of the evidencestandard."); see also e.g., Matter ofBarcenas, supra; United States v. Brignoni-Ponce, 422 U.S. 873,878-86 (1975) (reasonable suspicion of unlawful activity required for vehicle stop by immigrationagents); Almeida-Amaral v. Gonzales, 461 F.3d 231,235-36 (2d Cir. 2006) (while the agent had novalid reason for stopping alien, "more is needed" - a seizure is "egregious" if it is "gross orunreasonable" or "sufficiently severe.").

Furthermore, we note that while the I-213s do contain information concerning the respondents'alienage, the DHS is not precluded from carrying its burden of proof by another means. See, e.g.,INS v. Lopez-Mendoza, supra, at 1043 ("[Rjegardless ofhow the arrest is effected, deportation will

2

8/14/2019 Order of Suppression - Cervantes-Valerio (BIA, Oct. 2, 2009)

3/4

still 'be possible when evidence not derived directly from the arrest is sufficient to supportdeportation,"); Matter ofCervantes, 21 I&N Dec. 351, 353 (BIA 1996) (once respondent is placedin proceedings evidence from an independent source may be utilized); Miguel v. INS, 359 F3d 408,411 (6th CiT. 2004) (the denial of a motion to suppress did not affect removal order, where alienadmitted that she was alien); United States v. Navarro-Diaz, supra, at 587-88 (recognizing thepractical problemof eleasing individuals whose unregistered presence in this country, without more,constitutes a crime),

Additionally, as a separate matter, a remand is necessary to remedy certain procedural defectsin the underlying proceedings, Following the Immigration Judge's denial of he motion to suppress,he failed to conduct a proper hearing on the charges against the respondents and take pleadings. See8 C.F.R, 1240JO(c), (d). The regulations provide that when there are contested issues ofremovability the Immigration Judge "shall receive evidence as to any unresolved issues!' 8 CF,K 1240JO(d); see also INSv. Lopez-Mendoza, supra, at 1039 ("In many deportation cases the INSmust show only identity and alienage; the burden then shifts to the respondent to prove the time,place, and manner ofhis entry, ') Additionally, in finding the respondents removable it appears thatthe Immigration Judge relied on the Fonn 1-213 for each respondent However, these documentswere not fonnally admitted into the record, and thus the respondents did not have an opportunity toexamine or object to such evidence (Respondents' Brief, at 40-41), Counsel has submitted anaffidavit in support of his assertion (Respondents' Brief, at Exh, S). As these Fonn I-213s were thesubject of the motion to suppress filed before the hearing, we understand that any error by theImmigration Judge may have been inadvertent Nevertheless, it appears that the respondents did notreceive a copy ofthe document prior to the Immigration Judge's decision. They are entitled undersection 240(b)(4)(B) of the Immigration and Nationality Act to have a reasonable opportunity toexamine the evidence against them; to present evidence on their own behalf, and to cross-examinewitnesses presented by the DHS, See section 240(b)(4)(B) of the Act, 8 U,S,C 1229a(b)(4)(B)(stating, an alien "shall have a reasonable opportunity to examine evidence against the alien, [and]to present evidence on the alien's own behalf[T)

Therefore, upon remand the Immigration Judge should revisit the respondent's motion tosuppress and hold an evidentiary hearing to specifically address whether there was reasonablesuspicion for the traffic stop and, if not, whether the respondents have established the existence ofan egregious violation of the Fourth Amendment or other liberties that might transgress notions offundamental fairness or undennine the probative value of the evidence. Additionally, theImmigration Judge should afford the respondents the opportunity to enter their pleadings and toreceive evidence as to any unresolved issues in compliance with the applicable regulations.

In view of the foregoing, the following orders will be entered.ORDER: The appeal is sustained in part and dismissed in part,

3

8/14/2019 Order of Suppression - Cervantes-Valerio (BIA, Oct. 2, 2009)

4/4

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedingsconsistent with the foregoing opinion and for the entry of a new decision.

l ~ < ~ J)C -FOR THE BOARD

4