Dan Vondra

Cole & Vondra, LLP

209 E. Washington Street, Suite 305
Iowa City, IA 52240
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fa/s Curch. Vrginia 20530
OHS/ICE Ofice of Chief Counsel - OMA
1717 Avenue H
Omaha, NE 68110
Name: FONSECA VELASQUEZ, JOSE A ... A 200-586-281
Date of this notice: 3/10/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Sincerely,
DO c a
Donna Carr
Chief Clerk
schuckec
Useream: Docket
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Jose Alfredo Fonseca-Velasquez, A200 586 281 (BIA Mar. 10, 2014)
U.S. Department of Justice
Executive Ofce fr Immigtion Review
Decision of the Boad oflmmigation Appeals
Falls Church, Virginia 20530
File: A200 586 281 - Omaha, NE
In re: JOSE ALFREDO FONSECA-VELASQUEZ
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Dan Vondra, Esquire
ON BEHALF OF DHS:
CHARGE:
Clete P. Samson
Assistant Chief Counsel
Date:
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.
C. 1182(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Suppression
MAR 1 0 2014
The respondent, who was fund to be a native and citizen of Mexico, appeals the
Immigration Judge's May 23, 2012, decision denying the respondent's motion to suppress the
Form 1-213 i this case.1 See Exh. 2. We review the Immigation Judge's fctual fndings fr
clear eror and all other issues de novo. See 8 C.F.R. 1003. l(d)(3). The case will be remanded.
According to the respondent, on November 26, 2010, the car he was driving was stopped by
ofcers of the Cedar Rapids Police Depament (CRPD). The respondent indicated that he was
given citations fr Improper Brake Light, no driver's license and driving without liability
coverage, and he was taken into custody. See Exh. 5 at 4-6; Respondent's Brief at 9. When
interviewed during his detention, the respondent admitted that he is a native and citizen of
Mexico ad that he entered the United States illegally. The respondent's statements were
included in the respondent's Form 1-213 (Record of Deportable/Inadmissible Alien). The
respondent subsequently fled a motion to suppress the 1-213.
On appeal, the respondent argues that the Immigration Judge erred by denying the motion to
suppress. According to the respondent, afer his stop by the CRPD offcer, he should only have
received taffc citations and he should not have been taen into custody. The respondent claims
tat he wa stopped and detained because of his Hispanic appearace. See Respondent's Brief
at 11.
1 The Immigraton Judge issued a subsequent decision on August 3, 2012, granting the
respondent's request fr voluntary departure and alteratively ordering removal. All refrences
to the Immigration Judge's decision relate to the May 23, 2012, decision, unless otherwise
indicated.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Jose Alfredo Fonseca-Velasquez, A200 586 281 (BIA Mar. 10, 2014)
A00 586 281
In INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984), the Supreme Court held that the
Fourth Amendment exclusionary rule is generally inapplicable to deporation proceedings, but
lef open te possibility of applying this rule if there are egregious Fourth Amendment violations
which transgess Fifh Amendment notions of fdamental firess and undermine the probative
value of the evidence. See also Lopez-Gabriel v. Holder, 653 F.3d 683, 686 (8th Cir. 201 I)
(expressing doubt as to whether te exclusiona rule should apply in immigration proceedings
on the basis of conduct by state or local police ofcers, even in the case of egregious violations,
but ultimately rling on basis that record did not support petitioner's belief that traffc stop and
aest were racially motivated); Puc-Ruiz v. Holder, 629 F.3d 771, 778 (8th Cir. 2010);
Respondent's Brief at 5-6.
Tis Boad has recognized that, although the exclusionary rule is generally inapplicable
in removal proceedings, suppression is appropriate where the evidence was obtained in a
manner so egegious that its use would violate due process by ofending the requirements of
fndamenta fairess. See, e.g., Matter of Toro, 17 I&N Dec. 340, 343 (BIA 1980); see also
Matter of Barcenas, 19 l&N Dec. 609, 611 (BIA 1988); Matter of Garcia, 17 l&N Dec. 319, 321
(BIA 1980); Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979); Respondent's Brief at 15-16.
A alien seeking the exclusion of evidence based on the Fourth Amendment bears the burden
of establishing a prima facie case that the evidence should be suppressed. See Matter of Tang,
13 I&N Dec. 691 (BIA 1971). Only when an alien has come frward with adequate evidence in
support of suppression will the burden shif to the Department of Homeland Security (DHS) to
justif te maner in which it obtained the evidence. See Matter of Tang, supra. This Boad has
also held that an 1-213 is inherently trustworthy and admissible to prove alienage absent any
indication tat it contains infration tat is incorect or was obtained by coercion or duress.
See Matter of Gomez-Gomez, 23 I&N Dec. 522, 524 (BIA 2002); INS v. Ponce-Hernandez,
22 l&N Dec. 784, 785 (BIA 1999); Matter of Barcenas, supra, at 611.
In this case, the Immigration Judge recited te basis on which the respondent challenged his
stop and detention (I.J. at 3-4). Te Immigration Judge made no fctual fndings with regard to
the stop and the detention, however. For example, the Immigration Judge did not make fctual
fndings regading the date and circumstances surrounding the respondent's stop ad detention,
whether te respondent was interviewed by a CRPD ofcer or an offcer fom Immigration and
Customs Enforcement, the allegations made in the respondent's affdavit, or te respondent's
credibility. See Exh. 5 at 1. The Immigration Judge did not set frh his reasons fr reaching the
conclusion that the respondent had not established a prima facie case that his constitutional rights
were violated (I.J. at 4). Witout such fctua fndings, we are unable to adequately review the
Immigration Judge's conclusions. See Matter of S-H-, 23 l&N Dec. 462, 465 (BIA 2002) (given
the Boad's limited fct-fnding fnction, it is "increasingly important fr the Immigration Judge
to make clear and complete fndings of fct that are suppored by the record and in compliance
wit controlling law.").
For tese reasons, we will remand this case to the Imigration Judge to make the necessary
fctual fndings in the fst instace. Accordingly, the fllowing order will be entered.
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Jose Alfredo Fonseca-Velasquez, A200 586 281 (BIA Mar. 10, 2014)
A200 586 281
ORER: Te record is remanded to the Inigation Judge fr fer proceedings
consistent with ts opinion ad the ent of a new decision.
3
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Jose Alfredo Fonseca-Velasquez, A200 586 281 (BIA Mar. 10, 2014)
. .
'.- .
IMMIGRTION COURT
1717 AVENUE H SUITE 100
OMA, N 68110
r

1 '
In the Matter of
Case No.: A200-586-281
FONSECA VALASQUEZ, JOSE ALFREDO
Respondent IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRTION JGE
`
,t.
This is a summary of the oral decision entered on 08/03/12 . -
This memorandum is solely for the convenience of the partieB If the
proceedings should be appealed or reopened, the oral decision will become
the official opinion in the case.
[ ] The respondent was ordered removed from the United States to
or in the alternative to .
Respondent's application for voluntary departure was denied and
respondent was ordered removed to or in the
alternative to Mexico.
[X] Respondent's application for voluntary departure was granted until
10/02/12 upon posting a bond in the amount of $ 500.00
with an alternate order of removal to Mexico.
Respondent's application for:
[ ] Asylum was { )granted )denied( )withdrawn.
[ ] Withholding of removal was ( )granted ( )denied )withdraw.
[ ] A Waiver under Section was ( )granted ( )denied ( )withdraw.
[ ] Cancellation of removal under section 240A(a) was ( )granted ( )denied
{ )withdrawn.
Respondent's application for:
[
[
[
[
Cancellation under section 240A(b) (1) was { ) granted ) denied
( ) withdraw. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( }denied
( }withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section was ( )granted ( )denied
( )withdraw. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of { ) withholding of removal ( ) deferral of
removal under Article III of the Convention Against Torture was
( ) granted ( ) denied ( ) withdraw.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a until
As a condition of admission, respondent is to post a $ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
. t
Respondent was advised of the limitation on d' c
failure to appear as ordered in the Immigrat'on
Proceedings were terminated.
Other:
Date: Aug 3, 2012
/
(tl",,t
/-_P
Appeal: Waived Appeal Due By:
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMGRATION RVIEW
IMMIGRATION COURT
OMAHA, NEBRASKA
File #: A200-58281 Date: May 23, 2012
In the Matter of: )
)
Jose Alfedo FONSECA VELASQUEZ, ) IN REMOVAL
PROCEEDINGS )
Respondent. )
CHRGE: Section 212(a)(6)(A)(i)of the Immigation ad Nationalit Act
("INA" or "the Act") - Alien present in the United States without
being admitted or paroled.
APPLICATION: Objections to I-213 and Motion to Suppress
ON BEHF OF RESPONDENT:
Jessica L. Malot
Cole & Vondra, LLP
209 E. Washington Street, Suite 305
Iowa City, IA 52240
ON BEHALF OF THE GOVERMENT:
Clete P. Samson, Assistnt Chief Counsel
U.S. Depaent of Homelad Security
Immigation ad Customs Enforcement
1717 Avenue H, Suite 174
Omaa, N 68110
DECISION OF THE IMMIGRTION JUDGE
I. Background and Procedural Histor
On November 29, 2010, the Depaent of Homeland Security ("DHS" or "the
goverent") initiated removal proceedings against Respondent by fling a Notice to
Appear (''NT A") wit te Immigation Cour and personally serving Respondent. See
Exh. 1. The NT A alleges that Respondent is a native and citizen of Mexico who arrived
in te United States at or near Lueville, Arizona on a unown date wthout being
admited or paoled afer inspection. Id The NTA charges Respondent with
removabilit pursuat to te above-captioned section of the INA. Id
On April 19, 2012, Respondent, though counsel, fled a Motion to Suppress ad
Objections to 1-213 ("Motion to Suppress") requesting that all of the statements ad
evidence contained in the For I-213, Record of Deportable/Inadmissible Alien ("I-
213"), all statements ad evidence obtained by te Ceda Rapids Police Depaent, ad
all statements and evidence obtained during the Respondent's inteth
AUG 0 3 2012
--
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Immigration and Customs Enfrcement ("ICE"), and all atachents to the I-213 be
suppressed. See Moton to Suppress, at 1-2.
II. Statement of Law
Removal proceedings are civil in nature; therefre, the protections that apply in
the criinal context do not necessarily apply in a removal hearing. See INS v. Lopez
Mendoza, 468 U.S. 1032, 1038 (1984); Mater of Barcenas, 19 I&N Dec. 609, 611 (BIA
1988). The Immigration Cou is not bound by the taditional rules of evidence. See
Nyama v. Ashcrof, 357 F.3d 812, 816 (8th Cir. 2004); Barcenas, 19 I&N Dec. at 611.
Documentay evidence is admissible if it is relevant ad probative and its use is
fndamentally fir so as not to deprive the respondent of due process of the law. See
Nyama, 357 F.3d at 816; Mater ofToro, 17 I&N Dec. 340, 343 (BIA 1980).
A respondent challenging the legaity of evidence in removal proceedings must
establish aprima facie case in support of suppression befre DHS will be called upon to
justif the maner in which it obtined te evidence. See Mater of Tang, 13 I&N Dec.
691, 692 (BIA 1971); Mater of Wong, 13 l&N Dec. 820, 822 (BIA 1971). Statements
made in support of suppression must be specifc, detailed, ad based on personal
knowledge rather than conjecture. See Wong, 13 l&N Dec. at 822. A afdavit is
insuffcient on its ow to demonstrate that evdence should be suppressed; however, if
fcts alleged in a affdavit could support a basis fr excluding the evidence in question,
then the respondent must support his claim by testimony. See Barcenas, 19 I&N Dec. at
611.
The identity of a respondent is never itself suppressible "as te ft of the
poisonous tree" even if a illegal aest or interogation occured. See Lopez-Mendoza,
468 U.S. at 1040; Mater of Sandoval, 17 l&N Dec. 70, 79 (BIA 1979).
Fourth Amendment
Te Fou Aendment exclusiona rule, that suppresses statements ad other
evidence obtained as a result of an ulawl, warantless arrest in criminal proceedings, is
generally inapplicable to civil removal proceedings. See Lopez-Mendoza, 468 U.S. at
1050. However, te Supreme Cou, the Eighth Circuit Cou of Appeals, and the BIA
have caed out an exception fr circumstaces that involve "egegious violations of
Fouh Aendment or other liberties tat might tansgress notions of fndamentl
faess ad undermine the probative value of the evidence obtaned." See id , at I 050-
51; Puc-Ruiz v. Holder, 629 F.3d 771, 777-78 (8th Cir. 2010); Lopez-Gabriel v. Holder,
653 F.3d 683, 686 (8t Cir. 2011); Mater of Toro, 17 I&N Dec. at 343. 1 A egregious
constitutional violation is defned as "brtal conduct" which "shocks te conscience" ad
I the Eighth Cicuit, this exception seems to be naowig. In Garcia-Torres +. Holder, te Eigt
Circuit Cout of Appeals stated that "[t]his Court has expressed doubt whether even an egegious violation
by state or local ofcers could justif exclusion in a federal immigration proceeding, but the goverent
does not raise tat poit here, so we need not decide it" ad went on to determine that there was no
evidence of egegious conduct. Garcia-Torre v. Holder, 660 F.3d 333, 336 (8t Ci. 201 I) (citigLopez
Gabriel v. Holder, 653 F.3d 683, 686 (8t Cir. 201 I)).
2
___ - ... m. .:W.!. "w. M ....P
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
"ofend[s] the community's sense of fir play and decency." See Puc-Ruiz, 629 F.3d at
778 (citing Rochin v. Caliornia, 342 U.S. 165, 172-73 (1952)). While physical brutalit
is not required, there must be more than an illegal seizure or arrest fr the violation to
constitute egregious conduct. See id. , at 778-79 (citing an unreasonable show or use of
frce in a esting ad detaning a respondent and an arest based on race or appearance as
examples of conduct that could constitute egregious constitutional violations).
The Eight Circuit has held that "a trafc violation-however minor-creates
probable cause to stop te driver of a vehicle." US. v. Linkous, 285 F.3d 716, 719 (8th
Cir. 2002) (quoting United States v. Barr, 98 F.3d 373, 376 (8th Cir. 1996)) (interal
quotations omitted). Once a vehicle is validly stopped te police may "conduct an
investigation reasonably related in scope" to te purose of the stop. United States v.
McCoy, 200 F.3d 582, 584 (8th Cir. 2000) (citing United States v. Bloomfield, 40 F.3d
910, 915 (8t Cir. 1994). A reasonable investigation ca include questionng of one's
immigration status. See Muehler v. Mena, 544 U.S. 93 (2005).
Because the beneft of applying the exclusionary rule in the immigation context
is to deter unconstitutonal conduct by federal immigation agents, the case fr excluding
evidence based upon alleged misconduct by a local police ofcer is even weaker since
ay deterrent efect would be highly attenuated. See Lopez-Gabriel v. Holder, 653 F.3d,
at 686; see also Sandoval, 17 l&N Dec., at 83 ("[W]hen we balance what we consider to
be the remote likelihood that the exclusion of unlawflly seized evidence fom
deportation proceedings would signifcantly afect the conduct of immigation offcers
with the societal costs that could result fom such action and the alteratives available to
compel respect fr constitutional rights, we are not satisfed that either legal or policy
considerations dictate the exclusion of unlawflly seized evidence fom [removal]
proceedings.").
Objectons to Form 1-213, Record of lnadmissible/eportable Alien
A For 1-213 is a offcial DHS record that is generally suffcient to meet the
goverent's evidentiary burden of establishing aprima facie case of removability. See
Matter of Mejia, 16 I&N Dec. 6, 9 (BIA 1976); Mater of Gomez-Gomez, 23 I&N Dec.
522, 524 (BIA 2002). Absent evidence that a For 1-213 contains infration that is
inaccurate or obtained by coercion or duress, it is considered an inherently trustworthy
document admissible despite the hearsay contained within the document. See id. The
mere fct of an illegal a est where evidence seized during te arest is suppressed in
criminal proceedings has no bearing on deportation proceedings. Mejia, 16 l&N Dec., at
8-9 (citing US ex rel. Bilokmsk v. Tod, 263 U.S. 149 (1923)). Thus, evidence of
physical presence can ot be suppressed as "fit of the poisoned tree." Id
III. Findings and Analysis
The Court fnds that Respondent has not presented suffcient evidence to justif
te suppression of his aest and subsequent detention by ICE. The 1-213 states that
Respondent was arrested on traffc charges. Respondent was sentenced to fnes fr
3
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
violating Iowa taffc laws under Iowa Codes 321.20B, 321,174, ad 321.404. See
Notice of Filing fr Respondent's Motion to Suppress ad Objections to I-213, 4-6.
Respondent was ten transfred to ICE custody in Cedar Rapids. See id The I-213 does
not indicate or suggest that there was egregious conduct on behalf of te aresting ofcer
or that ay of the informaton contained within the I-213 was obtained by coercion or
duress tat would call fr the suppression of the I-213. Respondent asserts he was driving
his vehicle when local police vehicle passed him in the oncoming lae. Respondent's
afdavit 1. The police vehicle ted aound, fllowed Respondent, and pulled him
over. Id
Respondent assers that although the police ofcer told him he had been pulled
over because his brake light was not working, Respondent flt te only reason he was
pulled over was due to hs Hispanic appearace. Respondent's affdavit 4. Respondent
frther assert that under Ceda Rapid Muicipal Code CR/61.125, the Respondent
should have been fned, not arrested, fr the taffc violations fr which he was charged.
Ceda Rapid Municipal Code CR/61.125; see also Iowa Code 805.6 (2010); Iowa
Code 805.8A (2012); Iowa Code 321.20B (2008), Iowa Code 321.174 (2011),
Iowa Code 321.404 (1977). Respondent contends that Ceda Rapids police lacked the
authority to arrest individuals fr violation of Cedar Rapids Municipal Code CR/125.
Motion to Suppress, 8. As a result, Respondent believes the police offcer conducted an
unlawfl seizure which violated Respondent's rights under the Fouh Amendment. The
Cour fnds that Rest ondent has not provided sufcient evidence to demonstrate his
arest violated the 4 Amendment.
III. Conclusion
The Court fds that the record contains suffcient evidence to support
Respondent's arest and subsequent ICE detention. The evidence in the record does not
suppor a fnding that there was egegious conduct on behalf of the a esting offcer in
violation of the Fourth Amendment or that any of the information contained witn the I-
213 was obtained by coercion or duress that would warant suppression of the I-213.
Accordingly, the fllowing orders will be entered:
ORDER OF THE IMMIGRATION JUDGE
IT IS HEREBY ORERED that Resp de t's Motion to Suppress is
DENIED.
. ANDERSON
Immigration Judge
4
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t