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



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

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**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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 20 th** **day of May, two thousand and fourteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **ROSEMARY S. POOLER,** 7 **Circuit Judges ,**  8 **CHRISTINA REISS,** 9 **District Judge**

**.** * 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **ABRAHAM GUILLEN-JIMENEZ, AKA ABRAHAM** 13 **OSWALDO GUILLEN-JIMENEZ,** 14 15 **Petitioner ,**  16 17 **-v.- No. 12-2141** 18 19 **ERIC H. HOLDER, JR., UNITED STATES** 20 **ATTORNEY GENERAL,** 21 22 **Respondent**

**.** 23 - - - - - - - - - - - - - - - - - - - -X 24

* Chief Judge Christina Reiss, of the United States District Court for the District of Vermont, sitting by designation.

1**FOR PETITIONER:** JAMES A. WELCOME, Waterbury, CT. 1 2 **FOR RESPONDENT:** REBEKAH NAHAS, Trial Attorney, Office of 3 Immigration Litigation, Civil Division, 4 United States Department of Justice, 5 Washington, DC. 6 7 Petition for review of an order of the Board of 8 Immigration Appeals (“BIA”), dismissing the appeal from a 9 decision of the Immigration Judge (“IJ”)

**.** 10 11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 12 **AND DECREED**that the petition for review be **GRANTED**and the 13

case **REMANDED**to the BIA for further proceedings consistent 14 with this order. 15

Petitioner Abraham Guillen-Jimenez seeks review of a 16 BIA order dismissing his appeal from the IJ’s denial of 17 Guillen-Jimenez’s motion to suppress evidence and terminate 18 proceedings. We assume the parties’ familiarity with the 19 underlying facts, the procedural history, and the issues on 20 appeal. 21 22 “When the BIA does not expressly adopt the IJ’s 23 decision, but its brief opinion closely tracks the IJ’s 24 reasoning, this Court may consider both the IJ’s and the 25 BIA’s opinions for the sake of completeness.” Zaman v. 26 Mukasey , 514 F.3d 233, 237 (2d Cir. 2008) (internal 27 quotation marks omitted). “We review the agency’s factual 28 findings for substantial evidence and questions of law de 29

novo .” Cotzojay v. Holder , 725 F.3d 172, 177 n.5 (2d Cir. 30 2013) (citations omitted). 31 32 “[E]xclusion of evidence is appropriate . . . if record 33 evidence established . . . that an egregious violation that 34 was fundamentally unfair had occurred.” Almeida-Amaral v. 35 Gonzales , 461 F.3d 231, 235 (2d Cir. 2006). “[I]f an 36 individual is subjected to a seizure for no reason at all, 37 that by itself may constitute an egregious violation, but 38 only if the seizure is sufficiently severe.” Id. “[E]ven 39 where the seizure is not especially severe, it may 40 nevertheless qualify as an egregious violation if the stop 41 was based on race (or some other grossly improper 42 consideration).” Id. 43

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

3For the foregoing reasons, the petition for review is 1 granted and the case is remanded to the BIA for further 2 proceedings consistent with this order. 3 4 5 FOR THE COURT: 6 CATHERINE O’HAGAN WOLFE, CLERK 7 8 9

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