         10-1305-ag
         Gomez Velez v. Holder
                                                                                       BIA
                                                                               A089 013 442
                                 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 24th day of January, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                JOSÉ A. CABRANES,
 9                RAYMOND J. LOHIER, JR.,
10                     Circuit Judges.
11       _____________________________________
12
13       CARLOS ALBERTO GOMEZ VELEZ,
14                Petitioner,
15
16                          v.                                  10-1305-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                  Glenn T. Terk, Wethersfield,
24                                        Connecticut.
25
26       FOR RESPONDENT:                  Tony West, Assistant Attorney
27                                        General; Ernesto H. Molina, Jr.,
28                                        Assistant Director; D. Nicholas
29                                        Harling, Trial Attorney, Office of
30                                        Immigration Litigation, United
31                                        States Department of Justice,
32                                        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       Carlos Alberto Gomez Velez seeks review of a March 10,

 6   2010, order of the BIA, denying his motion to reconsider its

 7   July 24, 2009, decision in which it affirmed the April 11,

 8   2008, removal order of Immigration Judge (“IJ”) Paul M.

 9   Gagnon.   In re Gomez Velez, No. A089 013 442 (B.I.A. Mar.

10   10, 2010).   We assume the parties’ familiarity with the

11   underlying facts and procedural history in this case.

12       We review the BIA’s denial of a motion to reconsider

13   for abuse of discretion.   See Jin Ming Liu v. Gonzales, 439

14   F.3d 109, 111 (2d Cir. 2006) (per curiam).    As an initial

15   matter, because the petition for review is timely only as to

16   the BIA’s 2010 decision, we have jurisdiction to review only

17   the BIA’s 2010 denial of Gomez Velez’s motion to reconsider,

18   not the BIA’s underlying dismissal of his appeal.     See

19   8 U.S.C. § 1252(b)(1); Nwogu v. Gonzales, 491 F.3d 80, 84

20   (2d Cir. 2007) (per curiam); Ke Zhen Zhao v. U.S. Dep’t of

21   Justice, 265 F.3d 83, 90 (2d Cir. 2001).     We conclude that

22   the BIA did not abuse its discretion in its denial of

23   reconsideration.

                                   2
 1       In his motion to reconsider, Gomez Velez argued that

 2   the IJ did not allow him to present evidence in support of

 3   his motion to suppress evidence of his alienage obtained as

 4   a result of his arrest.   He has not explained, however,

 5   before the BIA or this Court, what evidence he would have

 6   presented that might have changed the outcome in his case.

 7   Accordingly, the BIA did not abuse its discretion in denying

 8   reconsideration on this ground.   See Aslam v. Mukasey, 537

 9   F.3d 110, 115 (2d Cir. 2008) (per curiam) (denying due

10   process claim because alien “fail[ed] to persuasively argue

11   that he was prejudiced”); Shi Jie Ge v. Holder, 588 F.3d 90,

12   96 (2d Cir. 2009) (denying due process claim because “any

13   injury suffered as a result has been cured because [the

14   alien] has been afforded the requisite full and fair

15   opportunity to litigate the merits of his . . . claim before

16   the BIA and this Court”); Rajah v. Mukasey, 544 F.3d 427,

17   448 (2d Cir. 2008) (in the absence of “unresolved issues,”

18   an IJ’s failure to hold an evidentiary hearing regarding the

19   petitioner’s removability did not require remand).

20       Gomez Velez also argued in his motion to reconsider

21   that the BIA improperly engaged in fact-finding by relying

22   on a declaration he submitted on appeal.   In denying the


                                   3
 1   motion, the BIA responded that it had not in fact relied on

 2   the declaration, but rather on his statements during the

 3   proceedings before the IJ.     Gomez Velez does not challenge

 4   or even acknowledge the BIA’s response or the fact that the

 5   IJ found the same facts, but simply reiterates that the BIA

 6   erred in relying on his declaration.     Thus, there is no

 7   basis to find that the BIA abused its discretion in denying

 8   the motion to reconsider on this ground.     See Belortaja v.

 9   Gonzales, 484 F.3d 619, 624 (2d Cir. 2007); Xian Tuan Ye v.

10   Dep’t of Homeland Sec., 446 F.3d 289, 296 (2d Cir. 2006)

11   (per curiam) (recognizing that the BIA does not overstep its

12   authority when it relies on facts already in the record).

13       Finally, Gomez Velez argued in his motion to reconsider

14   that even if his initial stop was due to a traffic

15   violation, his subsequent seizure was an egregious violation

16   of his rights warranting suppression because the Middletown

17   police officer who arrested him was not authorized to

18   enforce immigration law.     We have explained that an

19   egregious constitutional violation will trigger the

20   exclusionary rule in removal proceedings where, either:

21   (1) “an individual is subjected to seizure for no reason at

22   all . . . if the seizure is sufficiently severe”; or (2)


                                     4
 1   “even where the seizure is not especially severe . . . if

 2   the stop was based on race (or some other grossly improper

 3   consideration).”*   Almeida-Amaral v. Gonzales, 461 F.3d 231,

 4   235 (2d Cir. 2006).

 5       Before this Court, Gomez Velez suggests that race may

 6   have played a role in his arrest, pointing to evidence

 7   submitted before the IJ of a pending complaint against the

 8   officer for racial profiling.    However, because Gomez Velez

 9   did not exhaust this issue before the BIA, we decline to

10   address this argument.    See Lin Zhong v. U.S. Dep’t of

11   Justice, 480 F.3d 104, 122 (2d Cir. 2007).

12       Although Gomez Velez argues that his arrest was an

13   egregious violation of his constitutional rights because the

14   arresting officer did not have authority to enforce

15   immigration law, he cites no binding or relevant authority

16   for this proposition.    As the government points out, at

17   least in some circumstances federal immigration law

18   contemplates the cooperation of state employees with the

19   federal government in “the identification, apprehension,


            *
             We have also recognized that exclusion is
       appropriate where the Fourth Amendment violation
       undermined the reliability of the evidence in dispute.
       See Almeida-Amaral, 461 F.3d at 235. Here, however,
       Gomez Velez has not raised any challenge to the veracity
       of the evidence of his alienage.
                                  5
 1   detention, or removal of aliens not lawfully present in the

 2   United States.”    8 U.S.C. § 1357(g)(10).   Because Gomez

 3   Velez refers to no relevant facts or law to support his

 4   assertion that the arresting officer was not authorized to

 5   enforce federal immigration law, we cannot find that the BIA

 6   abused its discretion in denying his motion to reconsider.

 7   See Kaur v. BIA, 413 F.3d 232, 233-34 (2d Cir. 2005) (per

 8   curiam).

 9       For the foregoing reasons, the petition for review is

10   DENIED.    As we have completed our review, any stay of

11   removal that the Court previously granted in this petition

12   is VACATED, and any pending motion for a stay of removal in

13   this petition is DISMISSED as moot.    Any pending request for

14   oral argument in this petition is DENIED in accordance with

15   Federal Rule of Appellate Procedure 34(a)(2), and Second

16   Circuit Local Rule 34.1(b).

17                                 FOR THE COURT:
18                                 Catherine O’Hagan Wolfe, Clerk
19
20




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