U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Larios, Hugo F ., Esq. Hugo F. Larios Law, PLLC 3110 S. Rural Road, Ste. 101 Tempe, AZ 85282

OHS/ICE Office of Chief Counsel P.O.Box 25158 Phoenix, AZ 85002

PHO

Immigrant & Refugee Appellate Center | www.irac.net

Name: MUNOZ-BARAHONA, RIGOBER...

A 094-301-715

Date of this notice: 3/18/2014

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DawtL ctl./VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Grant, Edward R.

williame Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Rigoberto Antonio Munoz-Barahona, A094 301 715 (BIA Mar. 18, 2014)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A094 301 715 -Phoenix, AZ

Date:

MAR 1 S 2014

In re: RIGOBERTO ANTONIO MUNOZ-BARAHONA

IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Hugo F. Larios, Esquire

Jennifer I. Gaz Assistant Chief Counsel

APPLICATION: Termination The respondent appeals from an Immigration Judge's July 12, 2012, decision denying his motion to suppress and to terminate proceedings. The record will be remanded. We review an Immigration Judge's findings of fact for clear error, and review questions of law, discretion, and judgment, and all other issues on appeal de novo. 8 C.F.R.

1003. l(d)(3).

The Immigration Judge, in his July 12, 2012, decision, did not address the validity of the initial stop of the respondent by the Customs and Border Patrol, without which the Department of Homeland Security would not have had custody of the respondent. The Immigration Judge did not address the specifics of the respondent's arguments in his motion with respect to the allegation of "racial profiling" and whether or not there was an egregious Fourth Amendment violation. The United States Court of Appeals for the Ninth Circuit, the law of which controls here, has specifically held that the exclusionary rule does apply in immigration proceedings, to the extent of requiring the exclusion of any evidence that has been obtained as the result of a deliberate violation of the Fourth Amendment, or as the result of conduct that a reasonable officer should have known is in violation of the Constitution. See Lopez-Rodriguez 536 F.3d 1012 (9th Cir. 2008), reh'g en bane denied sub nom. Lopez-Rodriguez
v. v.

Mukasey,

Holder, 560

F.3d 1098 (9th Cir. 2009); Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994); Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir. 1994); Adamson v. C.lR, 745 F.2d 541 (9th Cir. 1984). The Immigration Judge, in considering the respondent's motion should address whether there was "racial profiling" and as such, egregious conduct in this case, applying the correct standard for "egregiousness" under Ninth Circuit case law consisting of the "reasonable officer" test. Accordingly, we will return this case to the Immigration Judge for further consideration of the respondent's motion. ORDER: The record is remanded to the

gration Judge for further proceedings

consistent with the foregoing opinion.

Cite as: Rigoberto Antonio Munoz-Barahona, A094 301 715 (BIA Mar. 18, 2014)

UN ITED STATES DEPARTMENT O F JUSTICE EXECUTIVE O F F I CE FOR IMM IGRAT ION REVIEW UN ITED STATES IMMIGRATION COURT PHOEN IX, ARIZONA

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File:

A094-3 01-715

July 12,

2012

In the Matter of

RIGOBERTO ANTONI O MUNOZ-BARAHONA RESPONDENT

IN REMOVAL PROCEED INGS

CHARGES:

Section 212(a) (6) (A) (i) - present in the United States without admission or parole.

APPLICAT IONS:

Termination of proceedings; voluntary departure at conclusion of proceedings.

ON BEHALF O F RESPONDENT: ON BEHALF OF DHS

:

HUGO LARIOS

JENN IFER GAZ

ORAL DECISION OF THE IMM IGRATION JUD G E The respondent, a native and citizen o f Honduras, was

brought into proceedings with the filing of a Notice to Appear, in this matter marked as Exhibit 1, noted above. Respondent, through counsel, at a master calendar charging removability as

hearing denied all allegations 1 through 4 on the charging

document,

and denied the charge,

as well.

Those pleadings were

taken at a hearing conducted on June 2,

201 1 .

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"The matter was set over to further hearing on February 14, 2012, to give the Department the opportunity to establish

alienage and to hear further evidence and testimony in this case. The record of proceedings contains the following exhibits: A Notice to Appear marked as Exhibit li respondent

has filed a motion to exclude certain evidence and terminate proceedings, that is found on Exhibit 2i Exhibit 3 is the DHS Exhibit 4 is a Form I-

memorandum of law in opposition to such; 2 13 ;

Exhibit 5 is a DHS exhibit which was filed with this Court 2012, containig attachments A and B, again, it is a

February 8,

Form I-213 and a U.S.

Department of Justice alien encounter.

The Court heard arguments from the parties in augmentation to their written documentation regarding the motion to suppres s and motion to terminate. The Department has entered

independent evidence to establish the respondent's alienage, found at Exhibit 5, motion to terminatei Department. which is not subject to or mentioned in the and, again, independently gathered by the after receiving

It is the opinion of the Court,

Exhibit 5 into evidence with no ob j ection,

that the respondent's

alienage has been established by clear and convincing evidence in this matter. The respondent had no evidence to present to place or manner of entry

demonstrate to the Court that his time,

A094-301 -7 15

July 1 2,

20 1 2

I.'

was lawful in any fashion.

Therefore,

the Court,

after place and

considering all evidence in the matter regarding time, manner of entry,

Immigrant & Refugee Appellate Center | www.irac.net

finds the respondent has not met his burden to The charge, therefore, will be

d emonstrate a lawful entry. sustained.

Respondent's counsel requested time to present a petition to the Department of Homeland Security for consideration for prosecutorial discretion in this case. matter was set to today's hearing, July 12, 2012. At that The

particular hearing date it was announced to the Court that prosecutorial discretion had not been extended to the respondent in this case. The respondent then requested the privilege of voluntary departure at conclusion of proceedings. Department indicated no opposition to such. The

The Court sees no

reason to deny the request for voluntary departure in this case. ORDERS Therefore, the order of this Court is that the

respondent be granted the privilege of voluntary departure on or before September 10, 2012.

IT IS FURTHER ORDERED that the respondent post a voluntary departure bond in the amount of $500 with the Department of Homeland Security within five business days of today's date. IT IS FURTHER ORDERED that should any of the above

A094-301-715

July 12,

2012


l,

conditions not be met by the respondent the above grant of postconclusion voluntary departure shall be withdrawn without

Immigrant & Refugee Appellate Center | www.irac.net

further notice or proceedings,

and an order of removal to

Honduras shall be entered in this matter. As part of this order, again, the Court enters the as required

Notice to Respondents Granted Voluntary Departure, by law and regulation,

and the parties are provided a copy of

that order at this time.

Date:

July 12,

2012

LAMONTE S.

FREERKS

,.

Immigration Judge

A094-3 01-715

July 12,

2012

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE LAMONTE S. FREERKS, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

RIGOBERTO ANTONIO MUNOZ-BARAHONA

A094-301-715

PHOENIX,

ARIZONA

is by

an accurate,

verbatim transcript of the recording as provided

the Executive Office for Immigration Review and that this is

the original transcript thereof for the file of the Executive Office for Immigration Review.

EVALENA E. CLARK DEPOSITION SERVICES, September 28, Inc.

(Transcriber)

2012

(Completion Date)