13-4678-ag
Gonzalez-Martinez v. Lynch

                                   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.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of August, two thousand fifteen.

PRESENT:             JOSÉ A. CABRANES,
                     REENA RAGGI,
                     RICHARD C. WESLEY,
                                  Circuit Judges.


HECTOR GONZALEZ-MARTINEZ, AKA
HECTOR GONZALEZ-MARCLINO,

                     Petitioner,

                              v.
                                                                  No. 13-4678-ag
LORETTA E. LYNCH, United States Attorney
General,

                     Respondent.

                                                    ___

FOR PETITIONER:                                           JOSE PEREZ, Law Offices of Jose Perez, P.C.,
                                                          Syracuse, NY.

FOR RESPONDENT:                                           CARMEL A. MORGAN (Jennifer P. Levings on
                                                          the brief), Office of Immigration Litigation, for
                                                          Stuart F. Delery, Assistant Attorney General,
                                                          U.S. Department of Justice, Civil Division,
                                                          Washington, D.C.
        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the petition for review of a Board of Immigration Appeals
decision is DENIED.

        Petitioner Hector Gonzalez-Martinez, a native and citizen of Mexico, seeks review of a
November 14, 2013 decision of the Board of Immigration Appeals (“BIA”) affirming a February 26,
2013 decision of an immigration judge (“IJ”) denying his motions and ordering him removed. In re
Hector Gonzalez-Martinez, No. A078 336 748 (B.I.A. Nov. 14, 2013), aff’g No. 078 336 748 (Immig. Ct.
Buffalo Feb. 26, 2013). We assume the parties’ familiarity with the underlying facts and procedural
history in this case.

        Under the circumstances of this case, we review the IJ’s decision as supplemented by the
BIA. See Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). “We review the agency’s factual findings
for substantial evidence and questions of law de novo.” Cotzojay v. Holder, 725 F.3d 172, 177 n.5 (2d
Cir. 2013) (citations omitted).

    I.      Suppression

        Gonzalez-Martinez argues that the agency erred in refusing to accept his motion to suppress
the information contained in the form I-213 record of an inadmissible alien submitted by the
Government. He contends that all evidence of his alienage should be suppressed because the
information contained in the I-213 was obtained through the allegedly egregious violations of his
Fourth Amendment rights, described below. This argument fails for the simple reason that,
irrespective of the admissibility of the I-213 form, Gonzalez-Martinez independently and voluntarily
admitted, through counsel, that he was not a U.S. citizen.

         Evidence obtained as a result of a Fourth Amendment violation is suppressible in the course
of a civil deportation proceeding only if the violation is egregious or undermines the reliability of the
evidence in dispute. See Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006); see also INS v.
Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). An individual in removal proceedings “raising a
question about the admissibility of evidence must come forward with proof establishing a prima
facie case before the Government will be called on to assume the burden of justifying the manner in
which it obtained the evidence.” Cotzojay, 725 F.3d at 178 (internal quotation marks and alteration
omitted). If he “offers an affidavit that could support a basis for excluding the evidence,” he must
be given an opportunity to present testimony to establish his prima facie case that there was an
egregious violation. Id. (internal quotation marks omitted). In his supporting affidavit, Gonzalez-
Martinez alleged that his rights were violated in March 2012, when a state trooper, later joined by an
armed border patrol agent, came to his home without cause, asked him questions about his alienage,
and refused to leave the premises or permit Gonzalez-Martinez to leave. Subsequently, according to
his affidavit, Gonzalez-Martinez was handcuffed, arrested, detained, and questioned, and he was not

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read his rights or shown a warrant. Gonzalez-Martinez argues that his affidavit establishes a prima
facie case for suppression and that he should have been granted a hearing on the matter.

          Notably, the IJ made no findings of fact regarding Gonzalez-Martinez’s allegations, but
rather, denied petitioner the opportunity to file his motion to suppress. However, even assuming,
purely for the sake of argument, that the information in the I-213 was obtained through an
egregious constitutional violation, Gonzalez-Martinez’s alienage was established through means
independent of the evidence he wished to suppress. See Vanegas-Ramirez v. Holder, 768 F.3d 226, 236
(2d Cir. 2014) (an alien’s “concessions are not fruit of the illegality, but of an intervening act of free
will, i.e., an alien’s own choice to concede his removability” (internal quotation marks omitted));
Pretzantzin v. Holder, 736 F.3d 641, 651 (2d Cir. 2013) (evidence of alienage will be admitted if it was
obtained through means independent of or sufficiently attenuated from the primary illegality). At a
hearing in September 2012, with the aid of counsel, Gonzalez-Martinez admitted that he was not a
citizen or national of the United States and was a native and citizen of Mexico. Gonzalez-Martinez
voluntarily conceded alienage six months after the date of the alleged violations, with the assistance
of counsel who had at that point represented Gonzalez-Martinez for at least five months. As a
result, the alienage concession was sufficiently independent of any violation that may have
previously occurred.1 See Pretzantzin, 736 F.3d at 647 (“an unlawful arrest has no bearing on the
validity of a subsequent proceeding”); Katris v. INS, 562 F.2d 866, 869 (2d Cir. 1977) (an illegal arrest
does not invalidate the subsequent deportation proceedings during which an alien concedes
deportability).

        Though Gonzalez-Martinez did not also affirmatively concede removability, the burden falls
on the alien to prove his time, place, and manner of entry into the United States, and a failure of
proof leads to the presumption of removability. 8 U.S.C. § 1361. Gonzalez-Martinez failed to carry
this burden.

       As the BIA determined, Gonzalez-Martinez thus cannot show that he was prejudiced in any
way by the IJ’s refusal to accept his motion to suppress or by the admission of the I-213 into
evidence, because there existed independently obtained evidence in the record sufficient to prove his
removability. See Lopez-Mendoza, 468 U.S. at 1043 (“[I]n many deportation proceedings the sole
matters necessary for the Government to establish are the respondent’s identity and alienage—at
which point the burden shifts to the respondent to prove the time, place and manner of entry. . . .
[Proof of alienage] will sometimes be possible using evidence gathered independently of, or

        1  If, instead of admitting alienage, Gonzalez-Martinez had refused to answer to the charges against
him and at that point sufficiently alleged that his placement in removal proceedings was the result of
information obtained through an egregious violation of his constitutional rights, only then would the IJ have
been required to determine whether Gonzalez-Martinez established a prima facie case for suppression. See
Cotzojay, 725 F.3d at 178; Pretzantzin, 736 F.3d at 650 n.10 (when pleading to allegations in a Notice to
Appear, “silence alone does not provide sufficient evidence . . . to establish a prima facie case of alienage.”
(quoting Matter of Guevara, 20 I&N Dec. 238, 241 (B.I.A. 1990))).
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sufficiently attenuated from, the original arrest.” (internal quotation marks and citations omitted));
Pretzantzin, 736 F.3d at 650-51 & n.10.

         Accordingly, the IJ did not err by refusing to accept the motion to suppress when Gonzalez-
Martinez attempted to file it at his merits hearing five months later, both because it was filed out of
time, see Immigration Court Practice Manual, Chapter 3.1(b)(ii)(A) (filings must be submitted at least
15 days in advance of the hearing), and because granting the motion to suppress would not have
changed the outcome of the proceedings. Gonzalez-Martinez had already conceded alienage
independently of the confessions reflected in the I-213 and made no showing that his presence in
this country is lawful.

   II.     Continuance

        Gonzalez-Martinez also argues that the agency erred in denying his motion to continue.
Immigration judges have the authority to grant continuances “for good cause shown,” 8 C.F.R.
§ 1003.29, and “are accorded wide latitude in calendar management.” Morgan v. Gonzales, 445 F.3d
549, 551 (2d Cir. 2006). As a result, we review the denial of a continuance for abuse of discretion.
Sanusi v. Gonzales, 445 F.3d 193, 199 (2d Cir. 2006). While Gonzalez-Martinez argues here that he
moved for a continuance to “allow [his] counsel to prepare his case, obtain the FOIA evidence that
had been requested and file for cancellation of removal,” see Petitioner’s Br. at 31, a review of the
record does not support that version of events. The relevant motion for continuance in the record
stated that Gonzalez-Martinez was only seeking voluntary departure and requested that proceedings
be adjourned so that the case could be set on the voluntary departure calendar. The IJ reasonably
determined that the application for voluntary departure could be adjudicated at the scheduled
hearing, as Gonzalez-Martinez had been previously advised. Gonzalez-Martinez did not show good
cause for adjournment of proceedings. See 8 C.F.R. § 1003.29. It was no abuse of discretion to deny
the motion for continuance.

   III.     Voluntary Departure

        Finally, Gonzalez-Martinez argues that the agency erred in denying voluntary departure.
During proceedings, the IJ asked Gonzalez-Martinez if he wished to apply for pre-conclusion or
post-conclusion voluntary departure, and Gonzalez-Martinez replied that he wished to apply for pre-
conclusion voluntary departure. As the IJ noted, to apply for pre-conclusion voluntary departure,
the regulations require an alien to waive his right to appeal. 8 C.F.R. § 1240.26(b)(1)(i)(D).
Gonzalez-Martinez then declined to waive his right to appeal and as a result was not eligible for pre-
conclusion voluntary departure. He did not apply, or indicate that he wished to apply, for post-
conclusion voluntary departure, which would not require him to waive his right to appeal. See 8
C.F.R. § 1240.26(c). Therefore, the agency did not err in denying voluntary departure.



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   IV.    Conclusion

         For the foregoing reasons, the petition for review is DENIED. The Government’s motion
to strike the affirmation that Gonzalez-Martinez included with his brief is DENIED as moot.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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