U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Qffice ofthe Clerk
51071.eesburg Pike. Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - MIA

333 South Miami Ave., Suite 200
Miami, FL 33130

Name: BRAVO NOLASCO, RAMIRO

A 205-854-686
Date of this notice: 9/10/2015

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

DoYUt.L ct1/Vu
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holiona, Hope Malia
Holmes, David B.
Miller, Neil P.

Userteam: Docket

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Cite as: Ramiro Bravo Nolasco, A205 854 686 (BIA Sept. 10, 2015)

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Ramos, Edward Fortunato

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U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A205 854 686 - Miami, FL

Date:

SEP l O 2015

In re: RAMIRO BRAVO NOLASCO

APPEAL
ON BEHALF OF RESPONDENT: Edward F. Ramos, Esquire
ON BEHALF OF DHS:

Kimberly Hillery
Assistant Chief Counsel

The respondent has appealed from the Immigration Judge's March 25, 2014, decision
sustaining the charges of removability. The removability hearing followed the Immigration
Judge's January 27, 2014, denial of the respondent's motion to suppress evidence. The
Department of Homeland Security (DHS) has filed a brief in opposition to the appeal. The
record will be remanded to the Immigration Judge for further proceedings.
We review findings of fact, including the determination of credibility, under a clearly
erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law, including whether
the parties have met the relevant burden of proof, and issues of discretion under a de novo
standard. 8 C.F.R. 1003.l(d)(3)(ii).
This matter arises from the respondent's arrest by Immigration and Customs Enforcement
("ICE") agents on May 6, 2013. The Immigration Judge sustained the charges of removability
based on a Form 1-213 dated May 17, 2013. The question is whether the Immigration Judge erred
by denying the respondent's motion to suppress this Form I-213. This appeal presents both a
constitutional challenge and a regulatory challenge to the admission of these documents. For
several reasons, we conclude that a remand is needed.
Evidence stemming from an egregious Fourth Amendment violation may be suppressible.
See, e.g., Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994). 1 In support of his motion to suppress
the DHS' Form 1-213, the respondent submitted an affidavit describing the circumstances
surrounding his arrest, and he argued that the Form I-213, prepared as a result of this arrest,
should be suppressed due to the egregious circumstances surrounding its source and preparation.
The Immigration Judge, in his denial of the respondent's motion to suppress, found that the
respondent's affidavit was "uncorroborated," that the Form I-213 was inherently reliable, and
that the ICE officers did not violate any agency regulations (I.J. Interim Order at 2). Thereafter,
at a hearing on March 25, 2014, the Immigration Judge found the respondent's request to testify
1

There are limitations on suppression of evidence in the immigration context, including the fact
that identity evidence can never be suppressed. INS v. Lopez-Mendoza, infra.
Cite as: Ramiro Bravo Nolasco, A205 854 686 (BIA Sept. 10, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A205 854 686

on behalf of his affidavit untimely, sustained the charges of removability based on the Form 1213, and ordered the respondent removed.

We find further proceedings warranted due to both of the respondent's arguments. As an

initial matter, our holding in Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988), is instructive in
this case. We found, therein, that where a party wishes to challenge the admissibility of a
document, the mere offering of an affidavit is not sufficient to sustain his burden. However, if
the affidavit is such that the facts alleged, if true, could support a basis for excluding the
evidence in question, then the claims must also be supported by testimony. The Immigration
Judge, while finding that the respondent's affidavit was "uncorroborated," did not determine
whether the facts alleged, if true, would support the exclusion of the Form 1-213. As such, we
will remand the record for a determination regarding whether the respondent's allegations, if
true, would be egregious under INS v. Lopez, supra. The respondent should be afforded an
opportunity to testify regarding the circumstances of his arrest, in support of the statements made
in his affidavit. Matter ofBarcenas, supra. 2
Moreover, we find further proceedings necessary to allow the DHS to explain the
circumstances surrounding the various regulatory violations alleged by the respondent, and for a
further determination regarding the reliability of the Form 1-213 in this case. 3 For clarification,
the Board employs a two-prong test, first enunciated by the Ninth Circuit in United States v.
Calderon-Medina, 591 F.2d 529 (9th Cir. 1979), to determine whether a regulatory violation
should result in the exclusion of evidence or the invalidation of the proceedings. Matter of
Garcia-Flores, 17 I&N Dec. 325 (BIA 1980). First, the regulation at issue must bestow a
2

We recognize that the Immigration Judge found the respondent's request to testify untimely
(Tr. at 13-14). However, we also note that no initial assessment of the respondent's affidavit was
conducted, and the respondent was never given a timely opportunity to testify in support of his
affidavit (Tr. at 11 ).
The respondent correctly argues that the Immigration Judge only addressed one regulatory
argument presented in the motion to suppress (Interim I.J. Dec. at 2). We note that testimony
from an examining officer would be illuminative in clarifying the various signatures represented
on the form. See 8 C.F.R. 287.3(a).
3

Cite as: Ramiro Bravo Nolasco, A205 854 686 (BIA Sept. 10, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

On appeal, the respondent proffers similar arguments to those he submitted in support of his
motion to suppress the Form 1-213. He argues, first, that ICE's decision to target him without
. any articulable basis to believe he was an alien, coupled with a warrantless raid of his home
without his consent, constitutes the type of egregious violation warranting suppression of the
Form 1-213. See INS v. Lopez-Mendoza, 468 U.S. 1032 (1984). The respondent also that ICE
officials violated a number of regulations, including 8 C.F.R. 287.S(a)(l), 287.8(b) (involving
warrantless questioning), 8 C.F.R. 287.3(a) (involving warrantless arrests), 8 C.F.R. 287.3(a)
(involving examination of aliens arrested without warrants), and 8 C.F.R. 287.8(f)(2)
(involving warrants and consent). Lastly, the respondent argues that the Form 1-213 itself is not
inherently reliable in this case because the contents are internally inconsistent and it was
prepared 11 days after the respondent's arrest.

A205 854 686

procedural or substantive benefit on the alien. Second, the violation of the regu)ation must have
prejudiced the alien's interests that were protected by the regulation. Further, "where
compliance with the regulation is mandated by the Constitution, prejudice may be presumed."
Id. at 329.

ORDER: The Immigration Judge's January 27, 2014, interim order is vacated.
FURTHER ORDER: The Immigration Judge's March 25, 2014, decision is vacated.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing decision.

FOR THE BOAR.D'

3
Cite as: Ramiro Bravo Nolasco, A205 854 686 (BIA Sept. 10, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In sum, we find that further fact-finding is necessary to determine whether the Form I-213
should be suppressed, given the respondent's constitutional and regulatory challenges. As such,
the following orders will be entered.

March 25, 2014

File: A205-854-686
In the Matter of

RAMIRO BRAVO NOLASCO

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

Section 212(a)(6)(A)(i) of the immigration and Nationality Act -

present without being admitted or paroled.

CHARGES:

Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act -

no valid immigrant visa.
APPLICATION:

Termination.

ON BEHALF OF RESPONDENT: Edward Ramos, Esquire

ON BEHALF OF OHS: Steven Parrish, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a male native and citizen of Guatemala who was issued a
Notice to Appear by the Department of Homeland Security (OHS) which charged him
with removability under ections 212{a)(6)(A)(i) and Section 212(a)(7)(A)(i)(I) of the
Immigration and Nationality Act (the Act). Exhibit 1.
The respondent filed a motion to suppress evidence and terminate
proceedings in this case.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA

The government filed its opposition to the respondent's motion to

suppress.

respondent's motion to suppress and terminate proceedings.

The court's interim order is hereby incorporated into this oral decision.
Today, the respondent denied all of the factual allegations in the Notice to
Appear and both charges.
The court, relying on the 1-213 filed by the government, sustained both
charges of removability.
The respondent has made no application for relief from removal in these
removal proceedings.
Accordingly, the respondent will be ordered removed to Guatemala as set
forth in the Notice to Appear.

Please see the next page for electronic

signature

A205-854- 686

SCOTT G. ALEXANDER
Immigration Judge

l'vl=ir c h 25,

2014

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On January 27, 2014, the court, in an interim order, denied the

I I sf I

I rmi gr at i on Judge SCOTT G ALEXANDER

A205-854-686

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alexands on July 22, 2014 at 5:32 PM Gv1f

M:irch 25, 2014