    15-4120
    Guillen-Jimenez v. Sessions
                                                                                      BIA
                                                                               Straus, IJ
                                                                             A088 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 TO 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 Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 30th
    day of March, two thousand seventeen.

    PRESENT:
              DENNIS JACOBS,
              DEBRA ANN LIVINGSTON,
                   Circuit Judges,
              LEWIS A. KAPLAN,*
                   District Judge.
    _____________________________________

    ABRAHAM GUILLEN-JIMENEZ, AKA ABRAHAM
    OSWALDO GUILLEN-JIMENEZ,

                        Petitioner,

                 v.                                                  15-4120


    JEFFERSON B. SESSIONS III, UNITED STATES
    ATTORNEY GENERAL,

                   Respondent.
    _____________________________________

    FOR PETITIONER:                      James A. Welcome, Waterbury, CT.

    FOR RESPONDENT:                      Benjamin C. Mizer, Principal Deputy
                                         Assistant Attorney General; Derek C.

    * Judge Lewis A. Kaplan, of the United States District Court for the
    Southern District of New York, sitting by designation.
                              Julius, Paul Fiorino, Senior
                              Litigation Counsel, Office of
                              Immigration Litigation, United States
                              Department of Justice, Washington, DC.

     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.

     Petitioner Abraham Guillen-Jimenez, an alleged native and
citizen of Ecuador, seeks review of a November 20, 2015 decision of
the BIA affirming a September 1, 2009 decision of an Immigration Judge
(“IJ”), in which the IJ denied his motion to suppress evidence and
terminate proceedings and also ordered him removed to Ecuador. In
re Abraham Guillen-Jimenez, No. A088 387 593 (B.I.A. Nov. 20, 2015),
aff’g No. A088 387 593 (Immig. Ct. Hartford Sept. 1, 2009). We assume
the parties’ familiarity with the underlying facts and procedural
history in this case.

     We have reviewed the decisions of both the IJ and BIA “for the
sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d
524, 528 (2d Cir. 2006). The applicable standards of review are well
established: “[w]e review the agency’s factual findings for
substantial evidence and questions of law de novo.” Cotzojay v.
Holder, 725 F.3d 172, 177 n.5 (2d Cir. 2013) (citation omitted); see
also 8 U.S.C. § 1252(b)(4)(B).

     We have approved the BIA’s burden-shifting framework for
adjudicating suppression motions: “if the petitioner offers an
affidavit that ‘could support a basis for excluding the evidence
in . . . question,’ it must then be supported by testimony. If the
petitioner establishes a prima facie case, the burden of proof shifts
to the Government to show why the evidence in question should be
admitted.” Cotzojay, 725 F.3d at 178 (quoting Matter of Barcenas,
19 I. & N. Dec. 609, 611 (B.I.A. 1988)). Stated another way, an
affidavit and testimony are both necessary elements of a petitioner’s
prima facie showing; however, the petitioner’s affidavit must be
sufficiently compelling for him to be allowed to offer supporting
testimony at a suppression hearing. See Matter of Barcenas, 19 I.
& N. Dec. at 611-12.

     In removal proceedings, suppression on constitutional grounds
is warranted if “record evidence establishe[s] . . . that an egregious
[Fourth    Amendment]     violation     that    was     fundamentally
unfair . . . occurred.” Almeida-Amaral v. Gonzales, 461 F.3d 231,
235 (2d Cir. 2006).      A constitutional violation may be found
egregious “if an individual is subjected to a seizure for no reason
at all . . . [and] the seizure is sufficiently severe.”            Id.

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(emphasis in original). “[E]ven where the seizure is not especially
severe, it may nevertheless qualify as an egregious violation if the
stop was based on race (or some other grossly improper
consideration).” Id. Therefore, the first question is whether
Guillen-Jimenez’s affidavit could support the proposition that his
stop was solely based on race. If not, and assuming that there was
no reason for the stop, the second question is whether
Guillen-Jimenez’s affidavit could support the proposition that his
seizure was sufficiently severe to constitute an egregious Fourth
Amendment violation. The answer to both questions is no.

     First, the agency correctly concluded that the representations
in Guillen-Jimenez’s affidavit, even if credited, “could [not]
support a basis for excluding the evidence” of his alienage on the
grounds that his stop was solely based on his Hispanic appearance.
Cotzojay, 725 F.3d at 178 (quoting Matter of Barcenas, 19 I. & N.
Dec. at 611); see Almeida-Amaral, 461 F.3d at 235. Importantly, as
the BIA observed, Guillen-Jimenez’s affidavit failed to identify
whether he is or appears Hispanic, whether his two coworkers arrested
with him are or appear Hispanic, and whether the driver (who was not
arrested) is or appears Hispanic.             Simply put, because
Guillen-Jimenez’s affidavit is completely silent as to race or
ethnicity, it cannot support an inference that the stop was based
on race or ethnicity.

     Second, the agency correctly concluded that the representations
in Guillen-Jimenez’s affidavit, even if credited, “could [not]
support a basis for excluding the evidence” of his alienage on the
grounds that his seizure was especially severe. Cotzojay, 725 F.3d
at 178 (quoting Matter of Barcenas, 19 I. & N. Dec. at 611); see
Almeida-Amaral, 461 F.3d at 235. “This Court has never found a
violation sufficiently severe, and therefore egregious, to require
suppression in a removal hearing.”      Cotzojay, 725 F.3d at 180. We
have held, however, that “[a] nighttime, warrantless raid of a
person’s home by government officials may, and frequently will,
constitute an egregious violation,” Pretzantzin v. Holder, 736 F.3d
641, 646 (2d Cir. 2013), and the Supreme Court has suggested that
such a violation might occur where an involuntary representation of
alienage is made after repeated requests for counsel are denied, see
INS v. Lopez-Mendoza, 468 U.S. 1032, 1051 n.5 (1984) (citing Matter
of Garcia, 17 I. & N. Dec. 319, 321 (B.I.A. 1980) (finding suppression
warranted when petitioner’s “numerous requests to call his attorney
were ignored,” DHS officer “grabbed” petitioner and “rubbed . . .
off” counsel’s telephone number written on petitioner’s arm, and
petitioner made incriminating statement about “his alienage to the
officers . . . only after a significant period in custody . . . [and]
his requests to contact his attorney were repeatedly rebuffed”)).
We have adopted “a flexible case-by-case approach” for determining
                                  3
whether a seizure is sufficiently severe to constitute an egregious
constitutional violation, “under which the threat or use of physical
force is one relevant, but not dispositive, consideration.”
Cotzojay, 725 F.3d at 182. Other relevant factors include: “whether
the violation was intentional; whether the seizure was ‘gross or
unreasonable’ and without plausible legal ground; whether the
invasion involved ‘threats, coercion[,] physical abuse’ or
‘unreasonable shows of force’; and whether the seizure or arrest was
based on race or ethnicity.” Id. at 182 (brackets in original)
(quoting Oliva-Ramos v. Att’y Gen. of U.S., 694 F.3d 259, 279 (3d
Cir. 2012)).

     Here, the agency reasonably concluded that the representations
in Guillen-Jimenez’s affidavit could not support a finding that his
seizure was sufficiently severe to constitute an egregious
constitutional violation. See id. Guillen-Jimenez did not allege
that the officers threatened to use or used physical force. He did
not allege that he involuntarily made incriminating statements about
his alienage after being denied his right to counsel; in fact, his
affidavit does not say what, if anything, he told the officers after
asking to call his attorney. And, as noted above, his affidavit does
not support an inference that his seizure was solely based on his
Hispanic appearance.    Although Guillen-Jimenez averred that the
officers used offensive language at times, he also averred that, at
other times, both officers were polite. Lastly, even assuming that
Guillen-Jimenez’s seizure was unreasonable, “if a Fourth Amendment
violation is measured by what is reasonable, then an egregious
violation must surely be something more than unreasonable.” Id.

      Because Guillen-Jimenez’s affidavit failed to present facts
that, “if true, could support a basis for excluding the evidence in
question,” the agency did not err by denying his motion without
holding an evidentiary hearing. See id. at 178 (quoting Barcenas,
19 I. & N. Dec. at 611). Guillen-Jimenez does not meaningfully press
his regulation-based claims for suppression on appeal, and so we
decline to consider them. Norton v. Sam’s Club, 145 F.3d 114, 117
(2d Cir. 1998) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on appeal.”).

     We have considered Guillen-Jimenez’s remaining arguments and
conclude that they are without merit. Accordingly, the petition for
review is DENIED.

                               FOR THE COURT:
                               CATHERINE O’HAGAN WOLFE, CLERK




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