    10-2208-ag
    Santos v. Holder
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A088 189 860
                        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
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         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 5th day of July, two thousand twelve.

    PRESENT: ROSEMARY S. POOLER,
             GERARD E. LYNCH,
                  Circuit Judges.1
    _____________________________________

    CHARLISTON CAMARGOS SANTOS,
             Petitioner,

                       v.                                  10-2208-ag
                                                           NAC
    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _______________________________________



                  1
             The Honorable Roger J. Miner, orginally a member of
        the panel, died on February 18, 2012. The two remaining
        members of the panel, who are in agreement, have
        determined the matter. See 28 U.S.C.§ 46(d); 2d Cir. IOP
        E(b); United States v. Desimone, 140 F.3d 457 (2d Cir.
        1998).
FOR PETITIONER:          Elizabeth A. Badger, Attorney,
                         Matthew Waters, Rule 46.1(e) Law
                         Student, Boston University Civil
                         Litigation Program, Boston,
                         Massachusetts.

FOR RESPONDENT:          Tony West, Assistant Attorney
                         General; Holly M. Smith, Senior
                         Litigation Counsel; Rachel Browning,
                         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 GRANTED in part, and DENIED in part.

    Charliston Camargos Santos seeks review of an April 27,

2010, order of the BIA, affirming the July 15, 2008,

decision of Immigration Judge (“IJ”) Michael W. Straus,

which denied his motion to suppress evidence and terminate

his removal proceedings, and granted his application for

voluntary departure with an alternate order of removal to

Brazil.    In re Santos, No. A088 189 860 (B.I.A. Apr. 27,

2010), aff’g No. A088 189 860 (Immig. Ct. Hartford July 15,

2008).    We assume the parties’ familiarity with the

underlying facts and procedural history in this case.




                               2
    We review both the IJ’s and the BIA’s opinions “for the

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

(2d Cir. 2008) (per curiam).   The applicable standards of

review are well-established.   See 8 U.S.C. § 1252(b)(4)(B);

Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir.

2006).

    A.   Prima Facie Case for Suppression

    Santos’s central argument is that the agency erred in

finding that he did not establish a prima facie case for

suppression, given that he submitted an affidavit and

supporting evidence that, if taken as true, showed that his

arrest was based on race.   He contends that, at the least,

he was entitled to a hearing on suppression. Indeed, where

an alien offers an affidavit, which, if accepted as true,

supports the suppression of evidence, the BIA has indicated

that a suppression hearing is appropriate.   See Matter of

Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988).   We have

explained that an egregious constitutional violation will

trigger the exclusionary rule in removal proceedings where,

“the stop was based on race (or some other grossly improper

consideration).”   Almeida-Amaral, 461 F.3d at 235. Here,

because Santos presented facts in his affidavit and evidence


                               3
that supported his belief that he was arrested on the basis

of his race, the IJ erred in failing to hold an evidentiary

hearing.    See Matter of Barcenas, 19 I. & N. Dec. at 611.

       We have held that the agency did not err in denying a

motion to suppress, where an alien “offered nothing other

than his own intuition” to support his belief that he was

arrested based on his race.    Almeida-Amaral, 461 F.3d at

237.    Here, in contrast, Santos presented specific factual

allegations in his affidavit and evidence, which, taken as

true, support his belief that the Massachusetts state

trooper who pulled him over did so on account of his race,

and that the speeding citation the trooper issued was a mere

pretext.    According to Santos’s sworn declaration: (1) he

and the passenger he was riding with have “olive-skin” and

“dark hair”; (2) he was not speeding; (3) the trooper

followed him for more than two miles before pulling him

over; (4) the trooper inquired about Santos’s immigration

status (and that of his passenger) before informing him that

he had been pulled over for speeding; (5) the trooper asked

Santos how he could afford such an expensive car when he, a

state trooper for over 15 years, could not afford that car;

(6) the trooper arrested him for unlicensed operation of a


                               4
motor vehicle, but this charge was never pursued in state

court; and (7) the trooper told him that his foreign

government-issued license was “fake.”    These facts, taken as

true and viewed in the light most favorable to Santos,

provide an objective prima facie basis to believe that he

was pulled over based on his Hispanic appearance.     Cf.

Almeida-Amaral, 461 F.3d at 237.

    Because Santos set out a prima facie case that

suppression was warranted because he was pulled over due to

his race, the IJ erred in denying his motion without a

hearing on suppression.   See Matter of Barcenas, 19 I. & N.

Dec. at 611.   Contrary to the Government’s contention that

Santos failed to administratively exhaust his argument that

the IJ did not take the allegations in his affidavit as

true, we understand his brief before the BIA, in which he

argued that “[a]t the very least, the declaration and other

evidence were sufficient to require that he be permitted to

testify in support of his prima facie showing,” to have

adequately preserved this argument.     See Gill v. INS, 420

F.3d 82, 85-86 (2d Cir. 2005) (recognizing that the Court

has never held that a petitioner is limited to the “exact

contours” of his or her argument to the agency).


                              5
    Accordingly, we remand to allow for a hearing on

Santos’s suppression claim, at which he will be able to

testify in support of his motion, and cross-examine

witnesses the Government may present.**   See 8 U.S.C.

§ 1229a(b)(4)(B) (providing that “the alien shall have a

reasonable opportunity to examine the evidence against the

alien, to present evidence on the alien’s own behalf, and to

cross-examine witnesses presented by the Government”).

    B.        Regulatory Violations

    Santos also argues that the agency erred in finding

that he was not entitled to termination or suppression of

his removal proceedings based on his claim that the

Government violated certain regulatory provisions.     These

arguments are unavailing, and we therefore deny the petition

for review in this part. Pre-hearing regulatory violations,

such as those alleged here, “are not grounds for

termination, absent prejudice that may have affected the

outcome of the proceeding, conscience-shocking conduct, or a


         **
         We need not specifically address Santos’s
  arguments that his right to due process was violated or
  that the IJ failed to consider evidence he submitted to
  bolster his claim that he was stopped based on his race,
  because, on remand, he will presumably be accorded a full
  and fair opportunity to present his arguments, which is
  the touchstone of due process in removal proceedings.
  See Brown v. Ashcroft, 360 F.3d 346, 350 (2d Cir. 2004).
                             6
deprivation of fundamental rights.”      Rajah v. Mukasey, 544

F.3d 427, 447 (2d Cir. 2008).       We have therefore concluded

that allegations of pre-hearing regulatory violations,

including violations of 8 C.F.R. §§ 287.3(a), 292.5(b),

which Santos raises here, regarding the requirement of

separate arresting and examining officers, and the right to

counsel, respectively, do not warrant termination.      See id.

Santos’s allegation of a violation of 8 C.F.R. § 236.1(e),

regarding the right to communicate with consular officers,

likewise does not warrant termination.      See United States v.

De La Pava, 268 F.3d 157, 165 (2d Cir. 2001).      Finally,

Santos’s argument that the Government violated 8 C.F.R.

§ 287.6(a)by submitting the Form I-213 without

authentication does not provide a basis for termination

because Santos was not prejudiced by the submission. See

Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993).      To the

extent Santos wishes to argue that the unauthenticated I-213

should be afforded diminished evidentiary weight, he will

have an opportunity to do so on remand.      See Xiao Ji Chen v.

U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)

(holding that the weight accorded to documentary evidence

lies largely within the IJ’s discretion).



                                7
    For the foregoing reasons, the petition for review is

GRANTED in part, and DENIED in part.

                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




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