    10-1318-ag
    Gonzalez-Ordonez v. Holder
                                                                                  BIA
                                                                            Brennan, IJ
                                                                          A098 616 623
                           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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 12th day of July, two thousand eleven.

    PRESENT:
             ROBERT D. SACK,
             REENA RAGGI,
             PETER W. HALL,
               Circuit Judges.
    _____________________________________
    _______________________________________

    EDUARDO ERNESTO GONZALEZ-ORDONEZ,
             Petitioner,

                       v.                                  10-1318-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________

    FOR PETITIONER:                 H. Raymond Fasano, New York,
                                    New York.
FOR RESPONDENT:       Tony West, Assistant Attorney General:
                      Douglas E. Ginsburg, Assistant Director;
                      Lisa Morinelli, Trial Attorney, Office of
                      Immigration Litigation, United States
                      Department of Justice, Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED, that the petition for review

is DENIED.

    Eduardo Ernesto Gonzalez-Ordonez seeks review of a March

8, 2010 order of the BIA affirming the September 17, 2008

decision of Immigration Judge (“IJ”) Noel A. Brennan, which

denied his motion to suppress evidence and found him removable

as charged.   In re Gonzalez-Ordonez, No. A098 616 623 (B.I.A.

Mar. 8, 2010), aff’g No. A098 616 623 (Immig. Ct. N.Y.C. Sept.

17, 2008).    We assume the parties’ familiarity with the

underlying facts and procedural history of this case.

    Under the circumstances of this case, we review the

decision of the IJ as supplemented and modified by the BIA.

See Ming Xia Chen v. BIA, 435 F.3d 141, 144 (2d Cir. 2006).

The applicable standards of review are well-established.    See

8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

513 (2d Cir. 2009).

    As an initial matter, even if the BIA erred in denying

the motion to suppress, there was independent evidence of

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Gonzalez-Ordonez’s         alienage         sufficient      to    satisfy      the

government’s limited burden.            See Almeida-Amaral v. Gonzales,

461 F.3d 231, 234 (2d Cir. 2006) (“‘[T]he INS must show only

identity    and    alienage;      the       burden   then      shifts     to   the

respondent    to   prove    the    time,      place,     and     manner   of   his

entry.’” (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1039

(1984)).     In an affidavit submitted to the IJ in support of

the motion to suppress, Gonzalez-Ordonez conceded that he “did

not have legal status in this country.”                    J.A. at 164.        See

Katris v. INS, 562 F.2d 866, 869 (2d Cir. 1977) (“[T]he

illegal arrest of an alien unlawfully in the United States

does not void a subsequent deportation order based on the

alien’s    admission   of    his    status      at   the    hearing.”).         In

addition, the government proffered two non-immigrant visa

applications filed by Gonzalez-Ordonez in 2000 and 2002, which

state that he is a citizen of Ecuador.                     See INS v. Lopez-

Mendoza, 468 U.S. at 1039 (“The ‘body’ or identity of a

defendant or respondent in a criminal or civil proceeding is

never itself suppressible as a fruit of an unlawful arrest,

even if it is conceded that an unlawful arrest, search, or

interrogation occurred.”).          Because Gonzalez-Ordonez offered

no evidence that he was lawfully present in the United States,


                                        3
the BIA correctly upheld his removal.

      In any event, the motion to suppress was correctly denied

because the initial stop and subsequent search were lawful.

Gonzalez-Ordonez’s claim that “there was no indication that

would lead the military officials to conclude that [he] was

not lawfully present,” Pet’r’s Br. at 9, was not raised below

and   will   not   be   considered   by   this   court   in   the   first

instance, see 8 U.S.C. § 1252(d)(1); Gill v. INS, 420 F.3d 82,

86 (2d Cir. 2005).       Indeed, Gonzalez-Ordonez acknowledged in

his brief below that the officers at the Air Force base

“certainly had the right to suspect an alien with no proper

[identification] being physically present at their Base.”

J.A. at 52.        Further, because Gonzalez-Ordonez fails to

challenge the BIA’s determination that the circumstances of

the stop and search were not egregious and did not undermine

the reliability of the evidence obtained, see            Almeida-Amaral

v. Gonzales, 461 F.3d at 235, we deem this issue abandoned,

see Yueqing Zhang v. Gonzales, 426 F.3d 540, 542 n.1 (2d Cir.

2005) (“Issues not sufficiently argued in the briefs are

considered waived and normally will not be addressed on

appeal.” (internal quotation marks omitted)).

      For the foregoing reasons, the petition for review is


                                     4
DENIED.    As we have completed our review, any stay of removal

that the Court previously granted in this petition is VACATED,

and any pending motion for a stay of removal in this petition

is DISMISSED as moot.    Any pending request for oral argument

in this petition is DENIED in accordance with Federal Rule of

Appellate Procedure 34(a)(2) and Second Circuit Local Rule

34.1(b).

                              FOR THE COURT:
                              Catherine O’Hagan Wolfe, Clerk




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