15-4073
Cruz-Ramos v. Sessions
                                                                             BIA
                                                                       Rocco, IJ
                                                                    A088 938 300

                  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 Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 18th day of April, two thousand seventeen.

PRESENT:
            DENNIS JACOBS,
            DEBRA ANN LIVINGSTON,
                 Circuit Judges,
            LEWIS A. KAPLAN,1
                 District Judge.

_____________________________________

GREGORIO CRUZ-RAMOS,
              Petitioner,

            v.                                               15-4073

JEFFERSON B. SESSIONS III, UNITED
STATES ATTORNEY GENERAL,
              Respondent.
_____________________________________




1 Judge Lewis A. Kaplan, of the United States District Court
for the Southern District of New York, sitting by
designation.
FOR PETITIONER:           ANNE E. DOEBLER, Buffalo, NY.

FOR RESPONDENT:           ANDREW OLIVEIRA, Trial Attorney,
                          Office of Immigration Litigation
                          (Benjamin C. Mizer, Principal
                          Deputy Assistant Attorney General;
                          Nancy E. Friedman, Senior
                          Litigation Counsel, on the brief),
                          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 Gregorio Cruz-Ramos, an alleged native and
citizen of Mexico, seeks review of a December 18, 2015
decision of the BIA affirming a February 28, 2011 decision
of an Immigration Judge (“IJ”), which ordered him removed
after denying without a hearing his motion to suppress the
evidence of his alienage derived from a vehicle stop by a
Border Patrol agent. In re Gregorio Cruz-Ramos, No. A088
938 300 (B.I.A. Dec. 18, 2015), aff’g No. A088 938 300
(Immig. Ct. Buffalo Feb. 28, 2011). We assume the parties’
familiarity with the underlying facts, the procedural
history, and the issues presented.

     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).

     In removal proceedings, suppression on constitutional
grounds is warranted only 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
                             2
all . . . [and] the seizure is sufficiently severe.” Id.
“[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. Such egregious violations are by
nature “rare.” Maldonado v. Holder, 763 F.3d 155, 165 (2d
Cir. 2014).

     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.

     The agency did not err by denying Cruz-Ramos’s motion
without a hearing.

     Roving Border Patrol agents may stop vehicles “if they
are aware of specific articulable facts, together with
rational inferences from these facts, that reasonably
warrant suspicion that the vehicles contain aliens who may
be illegally in the country.” United States v. Brignoni-
Ponce, 422 U.S. 873, 884 (1975). The Form I-213 prepared by
the Border Patrol agent -- which contains the admissions as
to alienage that Cruz-Ramos sought to suppress -- recounts
that: (1) Cruz-Ramos accelerated through a red light when
the Border Patrol vehicle first approached; (2) Cruz-Ramos
nearly caused an accident because he was monitoring the
Border Patrol vehicle in his rear-view mirror; and (3) the
passengers in Cruz-Ramos’s car were ducking down and
watching the Border Patrol vehicle.

     In support of his motion to suppress that document,
Cruz-Ramos submitted an affidavit averring that he was
                             3
driving within the speed limit, that he did not believe that
he had broken any traffic laws, and that he believed that
the Border Patrol agent pulled him over because he and his
three passengers are Hispanic.

     It was the burden of Cruz-Ramos to establish by
affidavit facts showing the sort of “rare” and “severe”
conduct that would be “egregious.” Even taken as true, the
affidavit of Cruz-Ramos is insufficient. Putting aside the
fact that the affidavit does not actually state that he was
in fact obeying the traffic laws, it disregards the stated
justifications for the stop. The denial of a motion for a
suppression hearing should not rest on the agency’s
acceptance as true of the report sought to be suppressed.
But Cruz-Ramos does not contest the account of the Border
Patrol; nor does he adduce severe and rare circumstances
that might otherwise show that the stop was a product of
egregious misconduct. The affidavit expresses a belief that
Cruz-Ramos was in compliance with traffic laws (which is not
much to the point considering that the Border Patrol does
not enforce the traffic laws) and it specifies that he and
his passengers are Hispanic. That perfunctory recitation is
not enough to sustain Cruz-Ramos’s burden to show that, at a
hearing, he could demonstrate rare and severe misconduct
amounting to the egregious.2

     We have considered Cruz-Ramos’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




2 Cruz-Ramos’s effort to obtain a suppression hearing based
on allegedly egregious regulatory violations fails for
identical reasons.
                              4
