         10-3600-ag
         Reyes-Basurto v. Holder
                                                                                         BIA
                                                                            Gordon-Uruakpa, IJ
                                                                                 A088 155 162
                                   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 27th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                REENA RAGGI,
 9                SUSAN L. CARNEY,
10                    Circuit Judges.
11       _____________________________________
12
13       JOSE REYES-BASURTO,
14                Petitioner,
15
16                           v.                                 10-3600-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:                    Linda Kenepaske, New York, New York.
24
25       FOR RESPONDENT:                    Tony West, Assistant Attorney
26                                          General; Douglas E. Ginsburg,
27                                          Assistant Director; Matthew B.
28                                          George, Trial Attorney, Office of
29                                          Immigration Litigation, United
30                                          States Department of Justice,
31                                          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       Jose Reyes-Basurto seeks review of an August 9, 2010

 6   order of the BIA, affirming the October 30, 2008 decision of

 7   Immigration Judge (“IJ”) Vivienne Gordon-Uruakpa, which,

 8   following her July 31, 2008 denial of his motion to suppress

 9   evidence and terminate his removal proceedings, ordered him

10   removed to Mexico.    In re Reyes-Basurto, No. A088 155 162

11   (B.I.A. Aug. 9, 2010), aff’g No. A088 155 162 (Immig. Ct.

12   N.Y. City Oct. 30, 2008).   We assume the parties’

13   familiarity with the underlying facts and procedural history

14   in this case.

15       Under the circumstances of this case, we have reviewed

16   both the IJ’s and the BIA’s opinions “for the sake of

17   completeness.”    Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

18   2008) (internal quotation marks omitted).   The applicable

19   standards of review are well-established.    See 8 U.S.C.

20   § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513

21   (2d Cir. 2009).

22       The central issue in this case is whether Reyes-Basurto

23   was entitled to the suppression of the Border Patrol records

                                    2
 1   and his I-140, both of which were in government databases

 2   prior to his July 2007 arrest, but came to light, or were

 3   “linked” to him, following his arrest.    The agency made no

 4   finding as to whether the arrest of Reyes-Basurto was an

 5   egregious violation of his constitutional rights so as to

 6   warrant suppression in removal proceedings.     See Almeida-

 7   Amaral v. Gonzales, 461 F.3d 231, 234-35 (2d Cir. 2006).

 8   Instead, the agency found that the Border Patrol records and

 9   the I-140 constituted sufficient evidence obtained

10   independently of the arrest to demonstrate Reyes-Basurto’s

11   alienage and removability, relying on United States v.

12   Crews, 445 U.S. 463 (1980).   Reyes-Basurto argues that Crews

13   is not controlling here, and urges the Court to consider

14   instead Davis v. Mississippi, 394 U.S. 721 (1969).     In

15   Davis, the Supreme Court held that fingerprint exemplars

16   obtained during a criminal defendant’s unlawful detention

17   were inadmissible and therefore could not link the defendant

18   to latent prints at the crime scene.     See id. at 725-27.    A

19   plurality in Crews distinguished Davis, writing: “Had it not

20   been for Davis’ illegal detention . . . his prints would not

21   have been obtained and he would never have become a suspect.

22   Here, in contrast, the robbery investigation had already


                                   3
 1   focused on [Crews], and the police had independent

 2   reasonable grounds to suspect his culpability.”     Crews, 445

 3   U.S. at 476.   Reyes-Basurto argues that, like Davis, he

 4   would never have become a suspect but for the pre-dawn,

 5   warrantless invasion of his home.     To the contrary, because

 6   the Government had pre-existing evidence in its databases

 7   that established Reyes-Basurto’s alienage, he was at least a

 8   “suspect” in regards to removability even before his arrest.

 9       Reyes-Basurto further argues that United States v.

10   Olivares-Rangel, 458 F.3d 1104 (10th Cir. 2006), supports

11   his argument that his pre-existing records are suppressible

12   because they were “linked” to him as a result of an unlawful

13   arrest.   Even if we were to follow the Tenth Circuit’s

14   reasoning in Olivares-Rangel, however, the instant case is

15   distinguishable in that there is no indication that the

16   Government obtained Reyes-Basurto’s Border Patrol records

17   and I-140 via his fingerprints.     Moreover, even if but for

18   Reyes-Basurto’s unlawful arrest the Government would not

19   have asked his name and would not have run searches through

20   its databases to find records demonstrating his alienage,

21   suppression of the pre-existing records is not warranted on

22   that basis alone.   See INS v. Lopez-Mendoza, 468 U.S. 1032,


                                   4
 1   1039 (1984) (holding that identity of defendant or

 2   respondent is never suppressible as fruit of unlawful

 3   arrest).    Because the arrest did not lead to the creation of

 4   new evidence of identity, such as fingerprints or

 5   photographs, we have no reason to decide here whether such

 6   evidence, when obtained for an investigative purpose, might

 7   fall outside the holding in Lopez-Mendoza.    See, e.g.,

 8   United States v. Oscar-Torres, 507 F.3d 224, 228 (4th Cir.

 9   2007); United States v. Garcia-Beltran, 389 F.3d 864, 866-67

10   (9th Cir. 2004); but see, e.g., United States v. Bowley, 435

11   F.3d 426, 430–31 (3d Cir. 2006) (holding that Lopez-Mendoza

12   generally precludes suppression of identity evidence absent

13   egregious constitutional violation).    Accordingly, the

14   agency did not err in finding that the Border Patrol records

15   and I-140 constituted independent evidence of Reyes-

16   Basurto’s alienage that was not subject to suppression.

17       For the foregoing reasons, the petition for review is

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

19   removal that the Court previously granted in this petition

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

21   this petition is DENIED as moot.    Any pending request for

22   oral argument in this petition is DENIED in accordance with

                                    5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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