         13-2032
         Cruz-Ramos v. Holder
                                                                                       BIA
                                                                                  Rocco, IJ
                                                                               A088 938 300
                                 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 for
 2       the Second Circuit, held at the Thurgood Marshall United States
 3       Courthouse, 40 Foley Square, in the City of New York, on the
 4       20th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                 DENNIS JACOBS,
 8                 ROSEMARY S. POOLER,
 9                      Circuit Judges,
10                 CHRISTINA REISS,*
11                      District Judge.
12       _____________________________________
13
14       GREGORIO CRUZ-RAMOS,
15                 Petitioner,
16
17                          v.                            13-2032
18
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                 Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                  Anne E. Doebler, Buffalo, New York.
25
26       FOR RESPONDENT:                  Stuart F. Delery, Assistant Attorney
27                                        General, Civil Division; Carl McIntyre,

                      *
                    Chief Judge Christina Reiss, of the United States
             District Court for the District of Vermont, sitting by
             designation.
 1                               Assistant Director, Office of
 2                               Immigration Litigation; Kevin J. Conway,
 3                               Trial Attorney, Office of Immigration
 4                               Litigation, United States Department of
 5                               Justice, Washington, D.C.
 6
 7        Petition for review of an order of the Board of Immigration

 8   Appeals (“BIA”), dismissing the appeal from a decision of the

 9   Immigration Judge (“IJ”).

10        UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

11   DECREED that the petition for review is GRANTED and the case

12   REMANDED to the BIA for further proceedings consistent with this

13   order.

14        Petitioner Gregorio Cruz-Ramos seeks review of a BIA order

15   dismissing his appeal from the IJ’s denial of Cruz-Ramos’s motion

16   to suppress evidence and terminate proceedings.    We assume the

17   parties’ familiarity with the underlying facts, the procedural

18   history, and the issues on appeal.

19        “When the BIA does not expressly adopt the IJ’s decision,

20   but its brief opinion closely tracks the IJ’s reasoning, this

21   Court may consider both the IJ’s and the BIA’s opinions for the

22   sake of completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d

23   Cir. 2008) (internal quotation marks omitted).    “We review the

24   agency’s factual findings for substantial evidence and questions

25   of law de novo.”   Cotzojay v. Holder, 725 F.3d 172, 177 n.5 (2d

26   Cir. 2013) (citations omitted).

27


                                       2
 1        “[E]xclusion of evidence is appropriate . . . if record

 2   evidence established . . . that an egregious violation that was

 3   fundamentally unfair had occurred.”         Almeida-Amaral v. Gonzales,

 4   461 F.3d 231, 235 (2d Cir. 2006).         “[I]f an individual is

 5   subjected to a seizure for no reason at all, that by itself may

 6   constitute an egregious violation, but only if the seizure is

 7   sufficiently severe.”   Id.   “[E]ven where the seizure is not

 8   especially severe, it may nevertheless qualify as an egregious

 9   violation if the stop was based on race (or some other grossly

10   improper consideration).”     Id.

11        “Pursuant to BIA precedent, a petitioner raising a question

12   about the admissibility of evidence must come forward with proof

13   establishing a prima facie case before the Government will be

14   called on to assume the burden of justifying the manner in which

15   it obtained the evidence.”     Cotzojay, 725 F.3d at 178 (internal

16   quotation marks and brackets omitted).        “Under this

17   burden-shifting framework, if the petitioner offers an affidavit

18   that ‘could support a basis for excluding the evidence in . . .

19   question,’ it must then be supported by testimony.”         Id. (quoting

20   Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988)).        “If

21   the petitioner establishes a prima facie case, the burden of

22   proof shifts to the Government to show why the evidence in

23   question should be admitted.”       Id.

24


                                         3
 1        The IJ required Cruz-Ramos to establish a prima facie case

 2   for suppression before he could present testimony at a hearing.

 3   See In re Gregorio Cruz-Ramos, No. A088 938 300 at 3 (Immig. Ct.

 4   Buffalo, N.Y., Feb. 28, 2011) (“[T]he Court finds that the

 5   respondent has failed to sustain his burden of establishing a

 6   prima facie case of illegality.”).      Cotzojay and BIA precedent,

 7   however, indicate that “if the petitioner offers an affidavit

 8   that could support a basis for excluding the evidence,” the

 9   petitioner must be given the opportunity to present testimony in

10   order to make out a prima facie case.       Cotzojay, 725 F.3d at 178

11   (emphasis added) (internal quotation mark omitted).

12        We therefore remand to the agency to decide, in the first

13   instance and under the correct standard, whether Cruz-Ramos’s

14   affidavit could support a basis for suppression and whether a

15   hearing is therefore required.1   Id.    The agency’s analysis

16   regarding whether Cruz-Ramos merits a hearing on his suppression

17   motion should be based on the assertions in his affidavit and not

18   the evidence he sought to suppress, namely, the I-213 Record of

19   Deportable/Inadmissible Alien.    See id.


            1
              Because we remand for further proceedings that may
       augment the record, we decline to consider Cruz-Ramos’s
       alternative claim for suppression based on allegedly egregious
       violations of Department of Homeland Security regulations.
       See INS v. Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general
       rule courts and agencies are not required to make findings on
       issues the decision of which is unnecessary to the results
       they reach.”).

                                       4
1         For the foregoing reasons, the petition for review is

2    GRANTED and the case is REMANDED to the BIA for further

3    proceedings consistent with this order.   As we have completed our

4    review, any stay of removal that the Court previously granted in

5    this petition is VACATED, and any pending motion for a stay of

6    removal in this petition is DISMISSED as moot.

 7                                 FOR THE COURT:
 8                                 Catherine O’Hagan Wolfe, Clerk
 9
10




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