CERROS RAMON v. SESSIONS III (2018)

SUMMARY ORDER

Petitioner Martin Cerros-Ramon, a native and citizen of Mexico, seeks review of an October 17, 2016 decision of the BIA affirming a March 19, 2015 decision of an Immigration Judge (“IJ”) ordering Cerros-Ramon's removal and a February 24, 2015 IJ decision denying Cerros-Ramon's motion to suppress. In re Martin Cerros-Ramon, No. A XXX XX2 553 (B.I.A. Oct. 17, 2016), aff'g No. A XXX XX2 553 (Immig. Ct. Buffalo Feb. 24 and Mar. 19, 2015). On appeal, Cerros-Ramon principally contends that the agency erred by failing to require the government to rebut his prima facie case for suppressing Form I-213. He argues that the contents of Form I-213, which the government relied on to establish his removability, were derived from an illegal traffic stop. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.

“When the BIA does not expressly adopt the IJ's decision, but its brief opinion closely tracks the IJ's reasoning, this Court may consider both the IJ's and the BIA's opinions for the sake of completeness.” Maldonado v. Holder, 763 F.3d 155, 158-59 (2d Cir. 2014) (citation omitted). We review factual findings for substantial evidence, and questions of law and the application of law to fact de novo. Roman v. Mukasey, 553 F.3d 184, 186 (2d Cir. 2009) (per curiam).

In civil immigration proceedings, a Fourth Amendment violation alone does not justify suppression of evidence: Suppression is appropriate if, inter alia, record evidence establishes that “an egregious violation that was fundamentally unfair had occurred.” Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006) (interpreting INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (plurality opinion) ). We posited two principles for determining whether a petitioner meets the standard for egregiousness, which is “stringent, entails a shock to the conscience, and is rarely satisfied.” Maldonado, 763 F.3d at 159. First, “if an individual is subjected to a seizure for no reason at all, that by itself may constitute an egregious violation, but only if the seizure is sufficiently severe.” Almeida-Amaral, 461 F.3d at 235 (emphasis in original). “Second, even where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the stop was based on race (or some other grossly improper consideration).” Id. Under the BIA's burden-shifting framework, the petitioner must put forth proof establishing a prima facie case for suppression before the government must assume the burden of justifying admission of the evidence. See Cotzojay v. Holder, 725 F.3d 172, 178 (2d Cir. 2013).

We agree with the agency that Cerros-Ramon did not establish a prima facie case for suppression. First, although he also argues that there was no reason at all for the traffic stop, Cerros-Ramon has not alleged factors—such as threats, coercion, unreasonable force, or a particularly lengthy detention—suggesting that the stop itself was severe. See Cotzojay, 725 F.3d at 182, 183 n.12 (listing factors); Almeida-Amaral, 461 F.3d at 236. Second, although he asserts that the traffic stop was based on his ethnicity, neither his testimony nor his affidavit described any basis for this belief, nor did he even allege that he believed he was pulled over because of his race or ethnicity. See Almeida-Amaral, 461 F.3d at 237 (a petitioner who “offers nothing other than his own intuition to show that race played a part in the arresting agent's decision” does not establish a race-based violation). And as the BIA observed, Cerros-Ramon's testimony that the stop took place in the dark and he could not clearly see the Border Patrol vehicle makes it implausible that the Border Patrol officer could have identified his race or ethnicity.¹

Cerros-Ramon's argument that traffic stops without reasonable suspicion “should be found inherently egregious,” Pet'r's Br. 22, is foreclosed by Lopez-Mendoza and our subsequent cases. In Almeida-Amaral, we concluded that a “suspicionless stop” infringed the petitioner's Fourth Amendment rights but did not warrant suppression, because “while the lack of any valid basis whatsoever for a seizure sets the stage for egregiousness, more is needed,” such as a showing that “the initial illegal stop is particularly lengthy, there is a show or use of force, etc.” 461 F.3d at 236; see also Maldonado, 763 F.3d at 165 (“Something egregious is by nature extreme, rare, and obvious.”); Cotzojay, 725 F.3d at 182 (“[I]f a Fourth Amendment violation is measured by what is reasonable, then an egregious violation must surely be something more than unreasonable.”).

We have considered Cerros-Ramon's remaining arguments and find them to be without merit. Accordingly, the petition for review is DENIED.

FOOTNOTES

1.   Even accepting arguendo Cerros-Ramon's argument that the agency improperly relied on the facts contained in the document sought to be suppressed in deciding the suppression motion—in this case, Form I-213—Cerros-Ramon was still required to put forth evidence himself establishing a prima facie case for suppression. He failed to meet this burden.