     12-2141
     Guillen-Jimenez v. Holder
                                                                                        BIA
                                                                                 Straus, IJ
                                                                                A88 387 593

                          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 Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 20th day of May, two thousand and fourteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                ROSEMARY S. POOLER,
 8                              Circuit Judges,
 9                CHRISTINA REISS,
10                              District Judge.*
11
12       - - - - - - - - - - - - - - - - - - - -X
13       ABRAHAM GUILLEN-JIMENEZ, AKA ABRAHAM
14       OSWALDO GUILLEN-JIMENEZ,
15
16                    Petitioner,
17
18                    -v.-                                              No. 12-2141
19
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22
23                Respondent.
24       - - - - - - - - - - - - - - - - - - - -X

                *
               Chief Judge Christina Reiss, of the United States
         District Court for the District of Vermont, sitting by
         designation.
                                                  1
 1   FOR PETITIONER:   JAMES A. WELCOME, Waterbury, CT.
 2
 3   FOR RESPONDENT:   REBEKAH NAHAS, Trial Attorney, Office of
 4                     Immigration Litigation, Civil Division,
 5                     United States Department of Justice,
 6                     Washington, DC.
 7
 8        Petition for review of an order of the Board of
 9   Immigration Appeals (“BIA”), dismissing the appeal from a
10   decision of the Immigration Judge (“IJ”).
11
12        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
13   AND DECREED that the petition for review be GRANTED and the
14   case REMANDED to the BIA for further proceedings consistent
15   with this order.

16        Petitioner Abraham Guillen-Jimenez seeks review of a
17   BIA order dismissing his appeal from the IJ’s denial of
18   Guillen-Jimenez’s motion to suppress evidence and terminate
19   proceedings. We assume the parties’ familiarity with the
20   underlying facts, the procedural history, and the issues on
21   appeal.
22
23        “When the BIA does not expressly adopt the IJ’s
24   decision, but its brief opinion closely tracks the IJ’s
25   reasoning, this Court may consider both the IJ’s and the
26   BIA’s opinions for the sake of completeness.” Zaman v.
27   Mukasey, 514 F.3d 233, 237 (2d Cir. 2008) (internal
28   quotation marks omitted). “We review the agency’s factual
29   findings for substantial evidence and questions of law de
30   novo.” Cotzojay v. Holder, 725 F.3d 172, 177 n.5 (2d Cir.
31   2013) (citations omitted).
32
33        “[E]xclusion of evidence is appropriate . . . if record
34   evidence established . . . that an egregious violation that
35   was fundamentally unfair had occurred.” Almeida-Amaral v.
36   Gonzales, 461 F.3d 231, 235 (2d Cir. 2006). “[I]f an
37   individual is subjected to a seizure for no reason at all,
38   that by itself may constitute an egregious violation, but
39   only if the seizure is sufficiently severe.” Id. “[E]ven
40   where the seizure is not especially severe, it may
41   nevertheless qualify as an egregious violation if the stop
42   was based on race (or some other grossly improper
43   consideration).” Id.

                                  2
 1        “Pursuant to BIA precedent, a petitioner raising a
 2   question about the admissibility of evidence must come
 3   forward with proof establishing a prima facie case before
 4   the Government will be called on to assume the burden of
 5   justifying the manner in which it obtained the evidence.”
 6   Cotzojay, 725 F.3d at 178 (internal quotation marks and
 7   brackets omitted). “Under this burden-shifting framework,
 8   if the petitioner offers an affidavit that ‘could support a
 9   basis for excluding the evidence in . . . question,’ it must
10   then be supported by testimony.” Id. (quoting Matter of
11   Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988)). “If the
12   petitioner establishes a prima facie case, the burden of
13   proof shifts to the Government to show why the evidence in
14   question should be admitted.” Id.
15
16        Here, the IJ required Guillen-Jimenez to establish a
17   prima facie case for suppression before he could present
18   testimony at a hearing. See In re Guillen-Jimenez, No. A88
19   387 593, at 8 (Immig. Ct. Hartford, Conn., Sep. 1, 2009)
20   (“On balance, the Respondent has not made out a prima facie
21   case of misconduct which would shift the burden to DHS to
22   show otherwise.”). Cotzojay and BIA precedent, however,
23   indicate that, “if the petitioner offers an affidavit that
24   could support a basis for excluding the evidence,” the
25   petitioner must be given the opportunity to present
26   testimony in order to make out a prima facie case.
27   Cotzojay, 725 F.3d at 178 (emphasis added) (internal
28   quotation mark omitted).
29
30        The IJ also noted that Guillen-Jimenez does not
31   resemble his driver’s license photo. The record, however,
32   is silent on whether the officer at the scene relied on (or
33   even made) this observation.
34
35        We therefore remand to the agency to decide, in the
36   first instance and under the correct standard, whether
37   Guillen-Jimenez’s affidavit could support a basis for
38   suppression and whether a hearing is therefore required.
39
40
41
42




                                  3
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.
4
5
6                              FOR THE COURT:
7                              CATHERINE O’HAGAN WOLFE, CLERK
8
9




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