Decision of the Board of Immigration Appeals

U.S. Department of Justice .

Executive Office for Immigration RevIew

Falls Church, Virginia 22041

Memphis, TN Date: OCT - 2 ZGG9

Files:

Inre: ROBERTO CERVANTES-VALERIO

JOSE LUIS CERVANTES-VALERIO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS: Elliott Ozment, Esquire

ON BEHALF OF DHS: John F. Cook, II

Assistant Chief Counsel

APPLICATION: Termination

The respondents appeal from an Immigration Judge's decision dated January 15,2008, ordering
them removed to Mexico after denying their motion to reconsider or clarify an order dated
November 21, 2007, which denied their motion to suppress evidence and terminate proceedings.
The appeal will be sustained in part and dismissed in part; the record will be remanded to the
Immigration Court for additional proceedings.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under a "clearly erroneous" standard. See 8 C.F .R. § 1003.1 (d)(3)(i). We review
all other issues, including whether the parties have met the relevant burden of proof, and issues of
discretion, under a de novo standard. See 8 C.F.R. § 1003.1 (d)(3)(ii); Matter of A-S-B-, 24 I&N
Dec. 493 (BIA 2008); Matter ofV-K-, 24 I&N Dec. 500 (BIA 2008).

We will remand the record to the Immigration Court for further proceedings. The respondents
contend that the Immigration Judge erred in denying their motion to suppress evidence and terminate
proceedings. Such motion sought to suppress each of the respondents' Form 1-213s (Record of
Deportabiellnadmissible Alien), and alleged that information contained in their Form I-213s
regarding their identity and alienage was improperly obtained by immigration officials who lacked
a "reasonable suspicion" sufficient to support a lawful apprehension of the respondents. The
respondents further argue that the Immigration Judge violated their due process rights by failing to
hold an evidentiary hearing on the motion to suppress evidence pursuant to Matter ofBarcenas, 19
I&N Dec. 609 (BIA 1988).

Although the Immigration Judge denied the motion to suppress, he did not rule on whether
the admission of the documents was fundamentally fair, whether the respondents had been
lawfully stopped, or whether the respondents established the existence of an egregious violation of
the Fourth Amendment. The United States Supreme Court has held that the exclusionary rule does
not generally apply in civil removal (formerly deportation) hearings. See INS v. Lopez-Mendoza,
468 U.S. 1032 (1984); see also Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979). However, the
Supreme Court indicated that the exclusionary rule may apply ifthere are egregious violations of the
Fourth Amendment which transgress notions of fundamental fairness. See INS v. Lopez-Mendoza,
supra, at 1032; see, e.g., Matter of Garcia, 17 I&N Dec. 319 (BIA 1980) (alien made prima facie
showing that admissions were involuntarily given; INS presented no contrary evidence; proceedings
terminated); Matter of Taro, 17 I&N Dec. 340 (BIA 1980).

The Immigration Judge properly determined that an alien may not suppress his or her identity
(lJ. at 2). See INS v. Lopez-Mendoza, supra, at 1039-40; United States v. Navarro-Diaz, 420 F.3d
581,584-88 (6th Cir. 2005). However, this finding does not address the respondents' admission of
alienage on the 1-213s, which is distinct from identity and does not address whether alienage may
be suppressed. As discussed further below, the respondents did not plead to the notice to appear, and
no testimony has been taken regarding their alienage. See 8 C.F.R. §§ 1240.10(c), (d).

As correctly stated by the Immigration Judge, "[ijfa respondent wishes to argue that an egregious
Fourth Amendment violation has occurred such that evidence should be excluded in immigration
proceedings, the respondent first must establish a prima facie case of the violation." U. at 2 (citing
Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988». We have consistently held that, absent any
evidence that a Form 1-213 contains information that is inaccurate or obtained by coercion or
duress, that document, although hearsay, is inherently trustworthy and admissible. See, e.g., Matter
of Ponce-Hernandez, 22 I&N Dec. 784 (BIA 1999); Matter of Barcenas, supra; Matter of Burgos,
15 I&N Dec. 278, 279 (BIA 1975); see also Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA
1980); Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971) ("[Aj mere demand for a suppression
hearing is not enough to cause one to be held.").

Here, the respondents dispute the accuracy of the 1-213 and the parties disagree about the
circumstances surrounding the respondents' encounter with immigration officials and local police.
The respondents have asserted facts which, if true, potentially may support a basis for excluding the
evidence in question. Thus, a remand is appropriate to investigate the manner in which the evidence
was obtained, including whether "reasonable suspicion" existed to stop the respondents and
whether the circumstances support the respondents' contention that an egregious Fourth Amendment
violation has occurred. See Dorsey v. Barber, 517 F.3d 389, 395 (6th Cir. 2008) (reasonable
suspicion "requires more than a mere hunch, but is satisfied by a likelihood of criminal activity less
than probable cause, and falls considerably short of satisfYing a preponderance of the evidence
standard."); see also e.g., Matter ofBarcenas, supra; United States v. Brignoni-Ponce, 422 U.S. 873,
878-86 (1975) (reasonable suspicion of unlawful activity required for vehicle stop by immigration
agents); Almeida-Amaral v. Gonzales, 461 F.3d 231,235-36 (2d Cir. 2006) (while the agent had no
valid reason for stopping alien, "more is needed" - a seizure is "egregious" if it is "gross or
unreasonable" or "sufficiently severe.").

Furthermore, we note that while the I-213s do contain information concerning the respondents'
alienage, the DHS is not precluded from carrying its burden of proof by another means. See, e.g.,
INS v. Lopez-Mendoza, supra, at 1043 ("[Rjegardless of how the arrest is effected, deportation will

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still 'be possible when evidence not derived directly from the arrest is sufficient to support
deportation,"); Matter ofCervantes, 21 I&N Dec. 351, 353 (BIA 1996) (once respondent is placed
in proceedings evidence from an independent source may be utilized); Miguel v. INS, 359 F3d 408,
411 (6th CiT. 2004) (the denial of a motion to suppress did not affect removal order, where alien
admitted that she was alien); United States v. Navarro-Diaz, supra, at 587-88 (recognizing the
practical problem ofreleasing individuals whose unregistered presence in this country, without more,
constitutes a crime),

Additionally, as a separate matter, a remand is necessary to remedy certain procedural defects

in the underlying proceedings, Following the Immigration Judge's denial of the motion to suppress,
he failed to conduct a proper hearing on the charges against the respondents and take pleadings. See
8 C.F.R, §§ 1240JO(c), (d). The regulations provide that when there are contested issues of
removability the Immigration Judge "shall receive evidence as to any unresolved issues!' 8 CF,K
§ 1240JO(d); see also INSv. Lopez-Mendoza, supra, at 1039 ("In many deportation cases the INS
must show only identity and alienage; the burden then shifts to the respondent to prove the time,
place, and manner of his entry, ') Additionally, in finding the respondents removable it appears that
the Immigration Judge relied on the Fonn 1-213 for each respondent However, these documents
were not fonnally admitted into the record, and thus the respondents did not have an opportunity to
examine or object to such evidence (Respondents' Brief, at 40-41), Counsel has submitted an
affidavit in support of this assertion (Respondents' Brief, at Exh, S). As these Fonn I-213s were the
subject of the motion to suppress filed before the hearing, we understand that any error by the
Immigration Judge may have been inadvertent Nevertheless, it appears that the respondents did not
receive a copy ofthe document prior to the Immigration Judge's decision. They are entitled under
section 240(b)(4)(B) of the Immigration and Nationality Act to have a reasonable opportunity to
examine the evidence against them; to present evidence on their own behalf, and to cross-examine
witnesses presented by the DHS, See section 240(b)(4)(B) of the Act, 8 U,S,C § 1229a(b)(4)(B)
(stating, an alien "shall have a reasonable opportunity to examine evidence against the alien, [and]
to present evidence on the alien's own behalf[T)

Therefore, upon remand the Immigration Judge should revisit the respondent's motion to
suppress and hold an evidentiary hearing to specifically address whether there was reasonable
suspicion for the traffic stop and, if not, whether the respondents have established the existence of
an egregious violation of the Fourth Amendment or other liberties that might transgress notions of
fundamental fairness or undennine the probative value of the evidence. Additionally, the
Immigration Judge should afford the respondents the opportunity to enter their pleadings and to
receive evidence as to any unresolved issues in compliance with the applicable regulations.

In view of the foregoing, the following orders will be entered.

ORDER: The appeal is sustained in part and dismissed in part,

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 FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

l~<~ J)C -
FOR THE BOARD