NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 14-3033

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VALDILENE GONCALVES TEIXEIRA; 

JONAS RICARDO ARRABAL;

JESUEL RICARDO ARRABAL,

 Petitioners

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA

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On Petition for Review of Decision of the Board of Immigration Appeals

(A201-111-638, A201-111-639, A201-111-640)

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Submitted Under Third Circuit LAR 34.1(a)

January 22, 2015

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Before: FISHER, JORDAN, GREENAWAY, JR., Circuit Judges.

(Opinion Filed: January 28, 2015)

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OPINION*

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.

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2

GREENAWAY, JR.; Circuit Judge.

Petitioners Valdilene Goncalves Teixeira, Jesuel Ricardo Arrabal, and Jonas 

Ricardo Arrabal (“Petitioners”) seek review of the decision of the Board of Immigration 

Appeals (“BIA”) dismissing their appeal of the order of removal by the Immigration 

Judge (“IJ”). Petitioners argue that the BIA abused its discretion, first by failing to 

consider all positive factors in favor of Petitioners and second because there was 

sufficient evidence that Immigration and Customs Enforcement (“ICE”) officers engaged 

in egregious conduct when arresting Petitioners. We will deny the petition for review. 

We will not disturb a discretionary decision of the BIA unless it is “‘arbitrary, 

irrational, or contrary to law.’” Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir. 

2012) (quoting Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002)). Petitioners argue 

that the BIA should have considered the fact that they have lived in the United States for 

approximately ten years without incident. However, during removal proceedings, 

Petitioners admitted the factual allegations contained in the Notices to Appear (i.e., that 

they are natives and citizens of Brazil who entered the United States at an unknown place 

on an unknown date without admission or parole by an inspection officer) and conceded 

the charge of removability. As such, it was well within the BIA’s discretion to dismiss 

their appeal.
3

The BIA did not abuse its discretion in denying Petitioners’ motion to reopen 

proceedings. “A motion to reopen proceedings shall not be granted unless it appears . . .

that evidence sought to be offered is material and was not available and could not have 

been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c). Petitioners 

point to our decision in Oliva-Ramos and argue that “the facts outlined . . . were not 

available at the time of [their] proceedings before the IJ.” Pet’rs’ Br. at 6. The BIA was 

not persuaded that this satisfied § 1003.2(c); we agree.

First, we did not find in Oliva-Ramos that there was egregious conduct or that a 

pattern and practice of such behavior existed, but rather we remanded to allow OlivaRamos to present previously unavailable evidence obtained by virtue of a Freedom of 

Information Act request. Oliva-Ramos, 694 F.3d at 282 (“We do not suggest that these 

allegations are established fact, nor that they would necessarily satisfy Oliva-Ramos’s 

burden under Lopez-Mendoza [468 U.S. 1032 (1984)] even if proven.”). Second, the 

unestablished facts of Oliva-Ramos do not advance Petitioners’ arguments here.1 

Finally, Petitioners’ affidavits fail to provide any evidence “establish[ing] either (a) that a 

constitutional violation that was fundamentally unfair had occurred, or (b) that the 

 

1 Petitioners attempt to rely on the discussion in Oliva-Ramos that addresses 

“widespread violations of the Fourth Amendment . . . serv[ing] as an independent 

rationale for applying the exclusionary rule in civil removal proceedings.” 694 F.3d at 

280. However, this fails for the simple reason that Petitioners have produced no evidence 

that the ICE officers’ conduct was egregious. This is fundamentally different than OlivaRamos, where we stated: “Oliva-Ramos ha[d] attempted to introduce evidence of a 
4

violation — regardless of its unfairness — undermined the reliability of the evidence in 

dispute.” Id. at 278.

For the foregoing reasons, we will deny the petition for review.

 

consistent pattern of conducting these raids during unreasonable hours, such as the 4:30 

a.m. raid that occurred here.” Id. at 281 (emphasis added).