Santos v. Holder , 486 F. App'x 918 ( 2012 )

10-2208-ag
Santos v. Holder
BIA
Straus, IJ
A088 189 860
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 5th day of July, two thousand twelve.
PRESENT: ROSEMARY S. POOLER,
GERARD E. LYNCH,
Circuit Judges.1
_____________________________________
CHARLISTON CAMARGOS SANTOS,
Petitioner,
v. 10-2208-ag
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_______________________________________
1
The Honorable Roger J. Miner, orginally a member of
the panel, died on February 18, 2012. The two remaining
members of the panel, who are in agreement, have
determined the matter. See 28 U.S.C.§ 46(d); 2d Cir. IOP
E(b); United States v. Desimone, 140 F.3d 457 (2d Cir.
1998).
FOR PETITIONER: Elizabeth A. Badger, Attorney,
Matthew Waters, Rule 46.1(e) Law
Student, Boston University Civil
Litigation Program, Boston,
Massachusetts.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Holly M. Smith, Senior
Litigation Counsel; Rachel Browning,
Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED, that the petition for review
is GRANTED in part, and DENIED in part.
Charliston Camargos Santos seeks review of an April 27,
2010, order of the BIA, affirming the July 15, 2008,
decision of Immigration Judge (“IJ”) Michael W. Straus,
which denied his motion to suppress evidence and terminate
his removal proceedings, and granted his application for
voluntary departure with an alternate order of removal to
Brazil. In re Santos, No. A088 189 860 (B.I.A. Apr. 27,
2010), aff’g No. A088 189 860 (Immig. Ct. Hartford July 15,
2008). We assume the parties’ familiarity with the
underlying facts and procedural history in this case.
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We review both the IJ’s and the BIA’s opinions “for the
sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237
(2d Cir. 2008) (per curiam). The applicable standards of
review are well-established. See 8 U.S.C. § 1252(b)(4)(B);
Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir.
2006).
A. Prima Facie Case for Suppression
Santos’s central argument is that the agency erred in
finding that he did not establish a prima facie case for
suppression, given that he submitted an affidavit and
supporting evidence that, if taken as true, showed that his
arrest was based on race. He contends that, at the least,
he was entitled to a hearing on suppression. Indeed, where
an alien offers an affidavit, which, if accepted as true,
supports the suppression of evidence, the BIA has indicated
that a suppression hearing is appropriate. See Matter of
Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988). We have
explained that an egregious constitutional violation will
trigger the exclusionary rule in removal proceedings where,
“the stop was based on race (or some other grossly improper
consideration).” Almeida-Amaral, 461 F.3d at 235. Here,
because Santos presented facts in his affidavit and evidence
3
that supported his belief that he was arrested on the basis
of his race, the IJ erred in failing to hold an evidentiary
hearing. See Matter of Barcenas, 19 I. & N. Dec. at 611.
We have held that the agency did not err in denying a
motion to suppress, where an alien “offered nothing other
than his own intuition” to support his belief that he was
arrested based on his race. Almeida-Amaral, 461 F.3d at
237. Here, in contrast, Santos presented specific factual
allegations in his affidavit and evidence, which, taken as
true, support his belief that the Massachusetts state
trooper who pulled him over did so on account of his race,
and that the speeding citation the trooper issued was a mere
pretext. According to Santos’s sworn declaration: (1) he
and the passenger he was riding with have “olive-skin” and
“dark hair”; (2) he was not speeding; (3) the trooper
followed him for more than two miles before pulling him
over; (4) the trooper inquired about Santos’s immigration
status (and that of his passenger) before informing him that
he had been pulled over for speeding; (5) the trooper asked
Santos how he could afford such an expensive car when he, a
state trooper for over 15 years, could not afford that car;
(6) the trooper arrested him for unlicensed operation of a
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motor vehicle, but this charge was never pursued in state
court; and (7) the trooper told him that his foreign
government-issued license was “fake.” These facts, taken as
true and viewed in the light most favorable to Santos,
provide an objective prima facie basis to believe that he
was pulled over based on his Hispanic appearance. Cf.
Almeida-Amaral, 461 F.3d at 237.
Because Santos set out a prima facie case that
suppression was warranted because he was pulled over due to
his race, the IJ erred in denying his motion without a
hearing on suppression. See Matter of Barcenas, 19 I. & N.
Dec. at 611. Contrary to the Government’s contention that
Santos failed to administratively exhaust his argument that
the IJ did not take the allegations in his affidavit as
true, we understand his brief before the BIA, in which he
argued that “[a]t the very least, the declaration and other
evidence were sufficient to require that he be permitted to
testify in support of his prima facie showing,” to have
adequately preserved this argument. See Gill v. INS, 420
F.3d 82, 85-86 (2d Cir. 2005) (recognizing that the Court
has never held that a petitioner is limited to the “exact
contours” of his or her argument to the agency).
5
Accordingly, we remand to allow for a hearing on
Santos’s suppression claim, at which he will be able to
testify in support of his motion, and cross-examine
witnesses the Government may present.** See 8 U.S.C.
§ 1229a(b)(4)(B) (providing that “the alien shall have a
reasonable opportunity to examine the evidence against the
alien, to present evidence on the alien’s own behalf, and to
cross-examine witnesses presented by the Government”).
B. Regulatory Violations
Santos also argues that the agency erred in finding
that he was not entitled to termination or suppression of
his removal proceedings based on his claim that the
Government violated certain regulatory provisions. These
arguments are unavailing, and we therefore deny the petition
for review in this part. Pre-hearing regulatory violations,
such as those alleged here, “are not grounds for
termination, absent prejudice that may have affected the
outcome of the proceeding, conscience-shocking conduct, or a
**
We need not specifically address Santos’s
arguments that his right to due process was violated or
that the IJ failed to consider evidence he submitted to
bolster his claim that he was stopped based on his race,
because, on remand, he will presumably be accorded a full
and fair opportunity to present his arguments, which is
the touchstone of due process in removal proceedings.
See Brown v. Ashcroft, 360 F.3d 346, 350 (2d Cir. 2004).
6
deprivation of fundamental rights.” Rajah v. Mukasey, 544
F.3d 427, 447 (2d Cir. 2008). We have therefore concluded
that allegations of pre-hearing regulatory violations,
including violations of 8 C.F.R. §§ 287.3(a), 292.5(b),
which Santos raises here, regarding the requirement of
separate arresting and examining officers, and the right to
counsel, respectively, do not warrant termination. See id.Santos’s allegation of a violation of 8 C.F.R. § 236.1(e),
regarding the right to communicate with consular officers,
likewise does not warrant termination. See United States v.
De La Pava, 268 F.3d 157, 165 (2d Cir. 2001). Finally,
Santos’s argument that the Government violated 8 C.F.R.
§ 287.6(a)by submitting the Form I-213 without
authentication does not provide a basis for termination
because Santos was not prejudiced by the submission. See
Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993). To the
extent Santos wishes to argue that the unauthenticated I-213
should be afforded diminished evidentiary weight, he will
have an opportunity to do so on remand. See Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir. 2006)
(holding that the weight accorded to documentary evidence
lies largely within the IJ’s discretion).
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For the foregoing reasons, the petition for review is
GRANTED in part, and DENIED in part.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
8