15

‐ 3728(L)

Rodriguez v. Barr



## In the



# United States Court of Appeals

**For the Second Circuit**

August Term, 2017

Nos. 15

‐ 3728

‐ ag, 17

‐ 273

‐ ag

C HRISTIAN R ODRIGUEZ

,

Petitioner

,

v.

W ILLIAM P. B ARR

, United States Attorney General,

Respondent.

Appeal from

the Board of Immigration Appeals.

No. A088

‐ 190

‐ 226

A RGUED : M AY 1, 2018

D ECIDED : N OVEMBER 21, 20192 Before: L YNCH and D RONEY

, Circuit Judges

, and S ESSIONS

, District Judge. *

Petitioner Christian Rodriguez (“Rodriguez”) brings two petitions for

review. The lead petition, No. 15

‐ 3728, seeks review of a decision of the Board of

Immigration Appeals (“BIA”) denying Rodriguez’s motion to suppress evidence

of his alleged alienage based on an egregious violation of his constitutional rights.

The second petition, No. 17

‐ 273, concerns the BIA’s denial of Rodriguez’s request

for sua sponte reopening of his completed removal proceedings pending the

outcome of a U

‐ visa application. We DENY Petition No. 17

‐ 273 because

Rodriguez’s U

‐ visa application has been denied. However, we GRANT Petition

No. 15

‐ 3728 because we find that Rodriguez made a prima facie showing of an

egregious violation of his Fourth Amendment rights, and REMAND the case to

the BIA for additional proceedings.

J OSEPH M EYERS

, T HOMAS S COTT

‐ R AILTON

, Law

Student Interns (Muneer I. Ahmad, Supervising

Attorney, Adán Martínez, Richard Zacharias,

Melissa Z. Marichal, Law Student Interns, on the

brief ), Jerome N. Frank Legal Services Org., Yale

Law School, New Haven, CT, for Petitioner

.

M. J OCELYN L OPEZ W RIGHT

, Senior Litigation

Counsel (Melissa Neiman

‐ Kelting, Assistant

Director, Office of Immigration Litigation, Chad

A. Readler, Acting Assistant Attorney General,

Civil Division, on the brief ), Office of Immigration

Litigation, Civil Division, U.S. Department of

Justice, Washington, D.C., for Respondent

.

* Judge William K. Sessions III, of the United States District Court for the District of Vermont,

sitting by designation.3 S ESSIONS

, District Judge :

Petitioner Christian Rodriguez (“Rodriguez”) brings two petitions for

review. The lead petition, No. 15

‐ 3728, seeks review of the Board of Immigration

Appeals’ (“BIA”) denial of Rodriguez’s motion to suppress evidence of his alleged

alienage. His second petition, No. 17

‐ 273, concerns the BIA’s denial of Rodriguez’s

request for sua sponte reopening of his completed removal proceeding. We grant

Petition No. 15

‐ 3728 and deny Petition No. 17

‐ 273.

FACTUAL BACKGROUND

I. Facts Relevant to Petition No. 15

‐ 3728

In 2007, the City of New Haven, Connecticut became the first city in the

United States to approve a municipal ID card that would be available to

undocumented residents. 1 Then

‐ mayor of New Haven, John DeStefano Jr., had

aired the idea of a municipal ID card in 2005, and the plan had gained steam by

early 2007. In May 2007, DeStefano testified before a committee of the New Haven

Board of Aldermen in support of a proposal, calling it an “issue of justice and an

issue of human rights, just as was the case when generations ago the community

1 The card could “be used in a variety of ways—as a debit card at businesses, drawing down on

the money card holders put in their bank accounts, a library card, a card to pay the city’s

parking meters and as proof of residency for admission to city parks.” App’x 340.4 of New Haven engaged the captives of the Amistad. 2 If New Haven won’t stand

up, who will stand up[?]” App’x 326.

Officials at the Department of Homeland Security (“DHS”) and

Immigration and Customs Enforcement (“ICE”) were aware of the proposed ID

card program. In fact, emails between ICE and DHS officials show that ICE had

“concerns” about the plan. App’x 426. Three days after the New Haven Register

published DeStefano’s comments, an email between ICE officials described the ID

program as follows: “Yale is loading up the Amistad with illegal aliens and sailing

them to freedom, while John Marley [an ICE attorney in Hartford, Connecticut]

openly weeps.” Id.

The city’s Board of Aldermen approved the municipal ID program on June

4, 2007. Approximately 36 hours later, federal agents conducted an early

‐ morning

raid in the city’s largely Hispanic neighborhood, Fair Haven. Federal agents

dressed in bulletproof vests entered multiple private homes, including a residence

at 546 Woodward Avenue. Agents arrived at 546 Woodward Avenue in search of

Jorge Barroso, an individual on their target list. 546 Woodward Avenue contains

2 (The Amistad was a schooner on which African slaves escaped their shackles and took over

the ship, ultimately gaining legal freedom in the process. See United States v. the Amistad

, 40 U.S.

518 (1841).)5 three apartments, and federal agents entered at least two of them (Units A and C).

Agents knocked on the front door of Unit C, which was answered by the fourteen

‐

year

‐ old son of the apartment’s main resident, Dora Riofrio. Riofrio’s son was

greeted by approximately eight agents who pushed past him into the apartment.

Id

. The agents then asked Riofrio the whereabouts of Jorge Barroso, her brother

‐

in

‐ law. Id

. She told the agents that he was in Ecuador. Id

. Nevertheless, the agents

proceeded to go upstairs in the apartment and arrest her husband, Antonio

Barroso. Id

. One agent pushed Riofrio’s minor son onto a couch. Id

.

The agents also entered Unit A and arrested Carlos Aucapina. Aucapina’s

mother

‐ in

‐ law answered a knock at the front door of Unit A. Agents held up a

picture of a man she did not recognize and asked if he lived in the apartment. Id

.

When she answered no, the agents pushed past her and entered the apartment. Id

.

Immediately before Aucapina’s arrest, an immigration officer held up a picture of

a target individual (who was not present) to Aucapina’s face and stated to another

agent, “[t]hey all look the same. Just arrest him.” App’x 391. Aucapina’s mother

‐

in

‐ law subsequently submitted an affidavit stating that immigration agents held

up a photo of the target next to Aucapina and said, “[i]t could be him,” even

though the two men did not resemble each other “at all.” App’x 389.6 The municipal ID program, and the arrests that followed its passing, were

widely covered by the press and discussed by local politicians, government

leaders, and the community. Connecticut’s then

‐ Senators, Joseph Lieberman and

Christopher Dodd, as well as the Congresswoman representing New Haven, Rosa

De Lauro, wrote to the Secretary of Homeland Security asking whether the raids

were planned in response to the municipal ID program and requesting an

explanation of the timing of the raid. The mayor of New Haven has called the

arrests “an act of intimidation” and “retaliation” for the introduction of the ID

cards. App’x 328, 331. The police chief of New Haven publicly stated that he had

not received notification prior to the raid, in violation of ICE policy. DHS denied

that accusation.

DHS also denied that the arrests were retaliation for the ID card program.

According to a letter written after the raids by the then

‐ Assistant Secretary of

Homeland Security, the plan for the New Haven raids was submitted on April 20,

2007 and approved on May 4, 2007. The Assistant Secretary asserted that the New

Haven arrests were part of a larger enforcement initiative called “Operation

Return to Sender” focused on the arrest of fugitive aliens. App’x 315. Of the

approximately thirty people arrested in New Haven on June 6, 2007, only five had7 outstanding deportation orders, and only one or two had criminal records. After

the arrests on June 6, ICE temporarily postponed its fugitive search operations in

Connecticut.

Petitioner Christian Rodriguez was arrested during these raids. At the time,

Rodriguez was working in construction for Antonio Barroso, an independent

contractor. The previous day, Barroso had allowed Rodriguez to borrow his car

and keep it overnight. Id. When Barroso was arrested in the early morning of June

6, Rodriguez received a call asking him to return the car. Rodriguez understood

that there were police officers at the house and Barroso needed to retrieve

documents from the car. Id

. After receiving the call, Rodriguez immediately got

into the car, wearing sandals and the clothes he had slept in. Id

. Rodriguez arrived

at Barroso’s residence around 7:00 a.m., approximately 30 minutes after Aucapina

had been arrested. Id

.

As Rodriguez pulled into the driveway, he noticed two “police officers”

(actually ICE agents). App’x 253. Rodriguez parked, and the officers walked

toward him until they were about two feet away. Id

. Rodriguez did not feel that

he was free to leave. Id

.8 Rodriguez is fluent in Spanish but not proficient in English. The officers

began speaking to Rodriguez and conducted the conversation in English, though

one officer spoke minimal Spanish and would restate some words in Spanish

when Rodriguez indicated that he could not understand. Id

. Rodriguez gave all of

his answers in Spanish. Id

. When one of the officers asked him what he was doing

at the house, Rodriguez responded that he didn’t live there but he was returning

the car to his boss. Id

. When asked for identification, Rodriguez told the officers he

did not have it on him because he had rushed to the house after getting the phone

call. Id

.

Rodriguez was handcuffed, arrested, and charged with removability under

8 U.S.C. § 1182(a)(6)(A)(i) for being an alien present in the United States without

being admitted or paroled, and brought to the Wyatt Detention Facility in Central

Falls, Rhode Island. Rodriguez was detained at the facility for 21 days before being

released on bond.

Following Rodriguez’s arrest, immigration officers prepared a Form I

‐ 213,

Record of Deportable/ Inadmissible Alien, on the same day, June 6, 2017. “A Form

I

‐ 213 is an official record prepared by immigration officials when initially

processing a person suspected of being in the United States without lawful9 permission,” which courts consider “presumptively reliable and admissible even

absent the testimony of the officer who prepared it, unless the reliability of the

form is somehow undermined.” Zuniga

‐ Perez v. Sessions

, 897 F.3d 114, 119 n.1 (2d

Cir. 2018) (internal citations and quotation marks omitted). The Form I

‐ 213

purporting to describe Rodriguez’s arrest states, inter alia

, that Rodriguez was

encountered by immigration and other law enforcement agents “at his residence.”

App’x 245. It also states that “[c]onsent to enter the residence was given by an

individual identified as Isadora Riofrio,” and that Rodriguez made admissions

concerning his alienage. App’x 245

– 46. As discussed below, the BIA later found

this Form I

‐ 213 to be “unreliable” because it was inconsistent with Rodriguez’s

testimony and the findings of the Immigration Judge (“IJ”), App’x 40, and DHS

subsequently withdrew any reliance on it.

In removal proceedings, Rodriguez filed a motion to suppress all evidence

obtained from his arrest, including the Form I

‐ 213. He argued that the federal

immigration agents who arrested him had egregiously violated his fundamental

constitutional rights because, inter alia

, he was seized, arrested, and detained based

solely on race. In support of his motion, he submitted a declaration and numerous10 other supporting exhibits. Rodriguez also testified at a hearing before an IJ,

Michael W. Straus, in support of his motion.

The Government did not offer any testimony, from arresting officers or

otherwise, to rebut Rodriguez’s account of the arrest. Rodriguez requested the IJ

issue a subpoena for the testimony of the arresting officer. The IJ declined to issue

the subpoena.

On April 2, 2009, IJ Straus denied Rodriguez’s motion to suppress and

terminate his removal proceedings. The IJ found that Rodriguez was not a

“particularly credible witness” because there were “gaps and contradictions” in

his declaration and live testimony. App’x 83–84. For example, Rodriguez testified

that the officers never asked him about his citizenship or alienage. The IJ found

this to be not credible: “[T]he Court is unable to determine if [Rodriguez] was

questioned about his alienage

. . . . While [Rodriguez] stated he was not asked

where he was from, he was unsure if he said anything else.” App’x 83. The IJ found

that the discrepancies had “a detrimental impact on [Rodriguez’s] burden of

presenting a prima facie case that his constitutional rights were egregiously

violated” because “the Court [was] unable to discern all of the relevant facts.” Id.11 Ultimately, the IJ held that the arrest was not an egregious violation of

Rodriguez’s constitutional rights because the officers “had reason to believe”

Rodriguez was an alien illegally in the United States. App’x 85. The IJ relied on

three facts to come to this conclusion: (1) Petitioner arrived at the site of an ongoing

law enforcement operation driving a vehicle owned by another individual, (2) he

did not have identification on him, and (3) he was unable to speak English. There

is no evidence the Government knew of his citizenship or alienage status at the

time of his arrest. Rodriguez filed a timely notice of appeal, and the case proceeded

to the BIA.

The BIA found “no clear error” in the IJ’s finding that Rodriguez presented

inconsistent testimony but that the “record as a whole” was “inconsistent and

unclear about what happened during the arrest.” App’x 40. The BIA also found

that the Form I

‐ 213 was unreliable and could not establish alienage for the

following reasons:

[B]oth the Immigration Judge’s order and [Rodriguez’s] many

declarations of record indicate that the details of the June 6, 2007,

arrest

. . . are incorrectly set forth in the I

‐ 213. That is, the Immigration

Judge and [Rodriguez] both describe the initial encounter between

[Rodriguez] and immigration agents as occurring “outside the home

of” [Rodriguez’s] employer. This encounter apparently took place in

a parking area behind the employer’s home, not a “residence.”

Because no entry into a residence was necessary, the statement in the12 I

‐ 213 that “consent to enter the residence was given by an individual

identified as Isadora Riofrio” [also] appears to be untrue, at least as it

relates to [Rodriguez].

The unreliability of the I

‐ 213’s description of the arrest also calls

into question what [the I

‐ 213 states] was said by [Rodriguez to

immigration officers.]

. . . . Furthermore, the sequence of events [as found by the IJ]

conflicts with the I

‐ 213, since on the one hand, [Rodriguez] is

described as not being able to speak English, and on the other hand,

the I

‐ 213 depicts [Rodriguez] as making admissions concerning his

presence and alienage, but does not indicate the presence of an

interpreter.

App’x 40

– 41. Given these findings, the BIA remanded to the IJ “to clarify, through

[further] fact

‐ finding, what occurred during [Rodriguez’s] arrest,” and “for the [IJ]

to identify and assess the information that supports the finding of alienage, and

then, if applicable, to decide whether that information can and should be

suppressed pursuant to the exclusionary rule.” App’x 42.

DHS filed a motion for reconsideration of the BIA’s decision, which was

denied. In its order denying the motion, the BIA elaborated on its reasons for

remanding the case, explaining that it had “directed [the IJ] to specifically set out

why [Rodriguez’s] account of the arrest did not state that an egregious

constitutional violation had occurred,” because “in [the BIA’s] view,” Rodriguez’s13 submissions “on [their] face

. . . raised allegations of an unlawful seizure.” App’x

28.

On remand, DHS withdrew the Form I

‐ 213 as evidence and instead

presented an Ecuadorian birth certificate 3 and criminal history print out as

evidence of alienage. Rodriguez argued that this evidence was still “fruit of the

poisonous tree” and should be excluded. Rodriguez submitted additional

affidavits concerning ICE’s alleged derogatory statements made in the course of

the raids. The Government made no effort to produce the testimony of the

arresting officers. The IJ found the birth certificate was “not tainted by unlawful

or egregious actions by ICE” and that Rodriguez had not made a prima facie case

of egregiousness. App’x 23.

Rodriguez again appealed to the BIA, and the BIA again remanded to the

IJ for additional fact

‐ finding. Specifically, the BIA instructed the IJ to find whether

the new evidence submitted by DHS was independent source evidence or if it

could be considered fruit of the poisonous tree. The BIA also instructed the IJ

again to “clarify the findings about the circumstances of [Petitioner’s] arrest,”

App’x 19, because the BIA apparently believed that the IJ had failed to comply

3 The name on the birth certificate, “Cristian Rodriguez,” does not match Petitioner’s true name.14 with its previously issued directive. See App’x 18

– 19 (“The Immigration Judge did

not make any additional factual findings with respect to the circumstances of

[Rodriguez’s] arrest

. . . [but] adhered to his previous holding that ICE agents did

not commit an egregious violation of the Fourth Amendment[.]”)

The case came before IJ Straus for the third time. The IJ concluded that the

Ecuadorian birth certificate could be considered fruit of the poisonous tree. The IJ

then examined the circumstances surrounding Rodriguez’s arrest to see if it

should be suppressed. The IJ assumed arguendo that Rodriguez was arrested

without sufficient cause and that his seizure thus violated the Fourth

Amendment’s prohibition against unreasonable seizures. However, the IJ

concluded that Rodriguez had “failed to establish a prima facie case that evidence

of his alienage was obtained through an egregious and fundamentally unfair

violation” of the Fourth Amendment. App’x 14.

Notwithstanding the prior concerns the BIA appeared to have harbored

regarding the circumstances of Rodriguez’s arrest, the BIA affirmed this decision

on October 20, 2015. The BIA stated that it was assuming without deciding that

Rodriguez had made a prima facie case of egregiousness. However, it then made a

ruling that appears to be inconsistent with that assumption, holding that “the15 record” of the arrest, which consisted only of Rodriguez’s evidence, “supports the

Immigration Judge’s determination that the method by which the evidence was

obtained by the immigration officers was not sufficiently egregious to apply the

exclusionary rule.” App’x 4.

II. Facts Relevant to Petition No. 17

‐ 273

On September 12, 2016, nearly a year after the BIA had issued its most recent

opinion in this case, Rodriguez filed an untimely motion with the BIA to reopen

and administratively close his case or, in the alternative, to reopen and remand his

case to the IJ for consideration of either administrative closure or a continuance. In

August 2015, Rodriguez had submitted a petition for a U

‐ visa to the United States

Citizenship and Immigration Service (“USCIS”) after having successfully obtained

certification from the Queen’s County District Attorney’s office that he had been a

victim of a crime in November 2011, helped the police identify the perpetrator,

and was a willing sworn witness in the criminal trial. Rodriguez argued that his

prima facie approvable U

‐ visa petition constituted new evidence warranting the

BIA’s exercise of sua sponte authority to reopen and administratively close or

continue proceedings.16 On December 28, 2016, the BIA denied Rodriguez’s motion, finding that he

had not demonstrated exceptional circumstances justifying the exercise of the

Board’s sua sponte authority. The Board held that Matter of Sanchez Sosa

, 25 I. & N.

Dec. 807 (BIA 2012), upon which Rodriguez had relied in making his motion, did

not apply to Rodriguez’s case because Rodriguez had filed an untimely motion to

reopen almost one year after the Board had issued its final administrative order,

whereas the respondent in Sanchez Sosa had sought a continuance while his

removal proceedings were still ongoing. Id

., Sanchez Sosa

, 25 I. & N. at 808.

Rodriguez then petitioned this Court for review of the BIA’s denial. This Court

consolidated this petition with Petition No. 15

‐ 3728, concerning Petitioner’s

motion to suppress.

On January 16, 2019, USCIS denied Rodriguez’s U

‐ visa application.

Rodriguez timely filed motions to reopen and reconsider, which were also denied.

STANDARD OF REVIEW

This Court defers to the factual findings of the BIA and the IJ if they are

supported by substantial evidence. Almeida

‐ Amaral v. Gonzales

, 461 F.3d 231, 233

(2d Cir. 2006). Issues of law are reviewed de novo

. Id

. at 234. In cases where the BIA

adopts and affirms the IJ’s opinion and supplements it with its own conclusions,17 the Court reviews the opinion of both the IJ and the BIA. Matadin v. Mukasey

, 546

F.3d 85, 89 (2d Cir. 2008).

DISCUSSION

This case consists of two consolidated petitions. The first petition (No. 15

‐

3728) presents the question of whether Rodriguez has made a prima facie case of an

egregious violation of his Fourth Amendment rights. The second petition (No. 17

‐

273) concerns the BIA’s denial of an untimely motion for sua sponte reopening.

Petition No. 15

‐ 3728 is addressed first below.

I. Petition No. 15

‐ 3728

A. Mootness

As a threshold matter, the Court must address the issue of mootness. The

Government argues that Petition No. 15

‐ 3728 is moot because Rodriguez has

admitted alienage in his U

‐ visa application. 4 The Court finds that this admission

does not moot the current appeal.

The Government relies on decisions in which the petitioner admitted

alienage during removal proceedings and the Agency expressly relied on that

4 The Government initially argued that Rodriguez’s admission of Ecuadorian alienage at a voluntary

departure proceeding moots the suppression issue. The government has since withdrawn that argument,

correctly acknowledging that both the regulations and agency precedent prohibit using testimony

provided for a voluntary departure application to establish alienage. Letter Confessing Error and18 admission. Such is not the case here: The Government obtained the U

‐ visa

application after the issuance of the latest BIA order concerning Petition No. 15

‐

3728. The U

‐ visa application was never entered into the administrative record for

that Petition, and neither the IJ nor the BIA ever relied on it when deciding the

issue of Rodriguez’s removability. Thus, the issue is not properly before us.

B. Suppression of evidence based on an egregious violation of

Rodriguez’s constitutional rights

Suppression of evidence is warranted in removal proceedings if the record

establishes an egregious constitutional violation or a violation that undermines the

reliability of the evidence in dispute. Almeida

‐ Amaral, 461 F.3d at 235. A

constitutional violation may be egregious “if an individual is subjected to a seizure

for no reason at all

. . . [and] the seizure is sufficiently severe.” Id

. (emphasis

removed). Even if “the seizure is not especially severe, it may nevertheless qualify

as an egregious violation if the stop was based on race.” Id

., see also Zuniga

‐ Perez

,

897 F.3d at 124 (“As the Supreme Court has made abundantly clear, stopping and

interrogating people based solely on race or ethnicity violates the Fourth

Amendment.”) (citing United States v. Brignoni

‐ Ponce

, 422 U.S. 873, 885–86 (1975)).

Withdrawal or Arg., Oct. 24, 2016, ECF 119; see 8 C.F.R. § 1240.49(e); Matter of Bulos

, 15 I & N Dec. 645, 648

(BIA 1976) (interpreting former 8 C.F.R. § 242.17(d), now codified as 8 C.F.R. § 1240.49).19 However, a petitioner who “offers nothing other than his own intuition to show

that race played a part in the arresting agent’s decision” does not establish an

egregious race

‐ based violation. Almeida

‐ Amaral

, 461 F.3d at 237.

In Matter of Barcenas

, 19 I. & N. Dec. 609, 611 (BIA 1988), the BIA held that a

respondent seeking to suppress evidence in a removal proceeding initially bears

the burden of proof to establish a prima facie case. Under this burden

‐ shifting

framework, “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

v. Holder

, 725 F.3d 172, 178 (2d Cir. 2013) (quoting Barcenas

, 19 I. & N. Dec. at 611).

Petitioners are “required to proffer affidavits based on personal knowledge that,

taken as true, could support suppression.” Maldonado v. Holder

, 763 F.3d 155, 162

(2d Cir. 2014). “[T]he requisite ‘personal knowledge,’” this Court has explained,

“refers to information possessed by the [petitioner] who was subject to the alleged

constitutional violation; it cannot extend to information the [petitioner] does not

have.” Cotzojay

, 725 F.3d at 178. In deciding when the burden shifts, the evidence20 and facts alleged must be viewed in the light most favorable to the petitioner.

Almeida

‐ Amaral

, 461 F.3d at 237.

The issue before the Court is whether, assessing the evidence in the light

most favorable to the Petitioner, Rodriguez established a prima facie case that his

arrest was racially motivated and therefore constituted an egregious violation of

his constitutional rights. 5

To demonstrate the egregiousness of his arrest, Rodriguez submitted the

following evidence concerning his arrest. Rodriguez was arrested during a

widespread raid on a largely Hispanic neighborhood in New Haven. This raid,

and his arrest, occurred a mere 36 hours after the city passed its immigrant

‐

friendly municipal ID card program, which ICE officials were aware of and

opposed. There is evidence that this raid was not announced to the New Haven

Police Department, in violation of ICE policy. During this raid, only five of the

approximately thirty people arrested had outstanding deportation orders, despite

5 As stated above, there is an apparent inconsistency between the BIA’s assuming that

Rodriguez “demonstrated a prima facie case for suppression,” App’x at 4, and its ruling in favor

of the government notwithstanding that Rodriguez’s evidence was uncontroverted. It is clear,

however, that although the BIA stated it was assuming that Rodriguez had presented a prima

facie case, it ultimately decided that Rodriguez’s evidence was insufficient to discharge his

burden. See App’x at 4

‐ 5. Therefore, we will address whether the BIA was correct, on the merits,

to conclude that Rodriguez did not discharge his burden.21 DHS’s stated purpose in conducting this raid, which was to find “fugitive aliens.”

Rodriguez was arrested after arriving at 546 Woodward Avenue, where federal

officers had entered apartments without consent or a warrant, and pushed a minor

child. Officers made derogatory and racially discriminatory remarks about the

Hispanic residents of 546 Woodward. While discussing one Hispanic man, an

officer said, “[t]hey all look the same. Just arrest him.” App’x 391. Read in the light

most favorable to Rodriguez, this evidence tends to show a racial animus in the

planning and execution of the raid during which Rodriguez was arrested, and thus

supports the inference that Rodriguez’s arrest was likewise race

‐ based. Cf. Mhany

Mgmt., Inc. v. Cty. of Nassau

, 819 F.3d 581, 606 (2d Cir. 2016) (observing in case

brought under the Equal Protection Clause that, “[b]ecause discriminatory intent

is rarely susceptible to direct proof, [courts] facing a question of discriminatory

intent must make a sensitive inquiry into such circumstantial and direct evidence

of intent as may be available”) (internal quotation marks omitted).

The government argues that the circumstances surrounding the arrests of

Barroso and Aucapina cannot support Rodriguez’s claim that his arrest was

egregious because petitioners “‘may only litigate what happened to them.’”

Respondent’s Br. at 43 (quoting INS v. Delgado

, 466 U.S. 210, 221 (1984)). But all22 three arrests occurred during the same raid, at the same residential building, and

in close temporal proximity. Accordingly, we find that the circumstances

surrounding the arrests of Barroso and Aucapina are probative of “what happened

to [Rodriguez].” Delgado

, 466 U.S. at 221.

In addition to the events preceding Rodriguez’s arrest, the particular

circumstances of his arrest more directly support the inference that he was arrested

based on his appearance. Specifically, the sheer paucity of evidence supporting a

finding of probable cause buttresses the conclusion that the arrest was racially

motivated. See Yoc

‐ Us v. Attorney Gen. United States, 932 F.3d 98, 113 (3d Cir. 2019)

(reasoning that the absence of a reason to extend a stop of petitioners, aside from

their Hispanic appearance, could support the inference that the prolongation of

the stop was race

‐ based). In analyzing the specific circumstances of Rodriguez’s

arrest, the IJ relied on three pieces of information to conclude that the arresting

officers had sufficient reason to believe Rodriguez was an alien illegally present in

the United States: (1) he arrived at the site of an ongoing law enforcement

operation driving a vehicle owned by another individual, (2) he did not have

identification on him, and (3) he was unable to speak English. These facts clearly

do not support a finding of probable cause for his arrest, however. Rodriguez23 arrived at 546 Woodward Avenue to provide documentation from the vehicle so

that his boss could respond to law enforcement inquiries. He also gave a

reasonable explanation as to his lack of identification: He had rushed out of bed

and into the car in order to help his boss as quickly as possible. Lastly, while

Rodriguez is not proficient in English, this “same characteristic applies to a sizable

portion of individuals lawfully present in this country.” United States v. Manzo

‐

Jurado

, 457 F.3d 928, 937 (9th Cir. 2006) (finding that individuals ʹ appearance as a

Hispanic work crew, inability to speak English, proximity to the border, and

unsuspicious behavior did not amount to reasonable suspicion that workers were

in the country illegally); see also United States v. Brignoni

‐ Ponce

, 422 U.S. 873, 885–

86 (1975) (“Mexican ancestry

. . . alone [does not] justify

. . . a reasonable belief that

[petitioners] were aliens.”).

The Form I

‐ 213 describing Rodriguez’s arrest also supports the inference

that the arrest was race

‐ based. The BIA found, based on the IJ’s findings and

Rodriguez’s testimony, that certain details of Rodriguez’s arrest were “incorrectly

set forth in the I

‐ 213,” such as the location of the arrest, and that the “probative

value of the I

‐ 213” was therefore “undermine[d]”. App’x 28, 40–41. That Form I

‐

213 was, as the BIA noted, prepared by immigration agents on the date of24 Rodriguez’s arrest and relied on by the Government to prove Rodriguez’s alienage

before the Government withdrew it. One can reasonably infer from the agents’

preparation of an unreliable report at the time of the arrest, which would

ultimately be used against Rodriguez, that the arrest was premised on an

impermissible basis. And, given the other facts in this case, one can infer that this

impermissible basis was race.

In sum, the evidence, read in the light most favorable to the Petitioner,

suggests that his arrest was racially motivated. Accordingly, we find that

Rodriguez has made out a prima facie case of an egregious violation of his

constitutional rights. 6

II. Petition No. 17

‐ 273

Generally, this Court reviews the BIA’s denial of a motion to reopen for

abuse of discretion. Ali v. Gonzales

, 448 F.3d 515, 517 (2d Cir. 2006). Here, because

Rodriguez’s motion was untimely, it could only be granted through the BIA’s

exercise of its authority to reopen sua sponte

. 8 C.F.R. § 1003.2(a). This Court is

normally “without jurisdiction to review the Agency’s failure to reopen removal

6 Rodriguez also argues that the evidence of his alienage should be suppressed due to egregious

violations of the First and Tenth Amendments. Having decided that he presented a prima facie

case for suppression based on an egregious violation of the Fourth Amendment, we do not

reach those arguments.25 proceedings sua sponte .” Mahmood v. Holder 570 F.3d 466, 469 (2d Cir. 2009).

However, “where the Agency may have declined to exercise its sua sponte

authority because it misperceived the legal background and thought, incorrectly,

that a reopening would necessarily fail, remand to the Agency for reconsideration

in view of the correct law is appropriate.” Id

.

In Matter of Sanchez Sosa

, the BIA “articulate[d] the factors that an

Immigration Judge and the Board should consider in determining whether an

alien has established good cause to continue a case involving a U nonimmigrant

visa petition.” 25 I. & N. Dec. 807, 807 (BIA 2012). While stating that “Immigration

Judges have broad discretionary authority over continuances ,” the BIA identified

certain factors to determine whether good cause exists to “ continue proceedings to

await adjudication by the USCIS.” Id

. at 812 (emphasis added). These factors

include “(1) the DHS’s response to the motion; (2) whether the underlying visa

petition is prima facie approvable; and (3) the reason for the continuance and other

procedural factors.” Id

. at 812

– 13.

Rodriguez challenges the BIA’s denial of his motion to reopen and for

administrative closure or remand in the alternative, pending the adjudication of

his U

‐ visa application. The BIA denied Rodriguez’s motion because it failed to find26 extraordinary circumstances which it felt justified the use of sua sponte authority.

The BIA did not apply the Sanchez Sosa factors, noting in its decision that Sanchez

Sosa did not pertain to Rodriguez’s situation because that case concerned a motion

for continuance during a merits hearing, while Rodriguez’s untimely motion was

filed almost one year after the BIA issued its final administrative order. Rodriguez

argues that this was a misperception of its announced policy and that the BIA

should have applied the Sanchez Sosa factors.

Since USCIS denied Rodriguez’s U

‐ visa application, the Court does not need

to reach the question of whether the Sanchez Sosa factors would apply to

Rodriguez’s case and whether the BIA erred in not applying them. Even if the BIA

deviated from its own standard regarding U

‐ visa petitions, that standard would

no longer apply on remand and Rodriguez would not receive any relief. For this

reason, Petition No. 17

‐ 273 is denied.

CONCLUSION

For the reasons set forth above, we GRANT Petition No. 15

‐ 3728 and

REMAND the case to the BIA for further proceedings in accordance with this

opinion. Petition No. 17

‐ 273 is DENIED

.