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,

on the 20th 4 day of May, two thousand and fourteen.

5

6 PRESENT: DENNIS JACOBS,

7 ROSEMARY S. POOLER,

8 Circuit Judges,

9 CHRISTINA REISS,

District Judge.* 10

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.

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* 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

4