In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s motion to suppress based on allegations that he was improperly held on an ICE detainer after being arrested by local police. The decision was written by Member Edward Grant. (Note: this decision was subsequently overturned by Armas-Barrenzuela v. Holder, No. 10-70803 (9th Cir. Jan. 8, 2014).)
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s motion to suppress based on allegations that he was improperly held on an ICE detainer after being arrested by local police. The decision was written by Member Edward Grant. (Note: this decision was subsequently overturned by Armas-Barrenzuela v. Holder, No. 10-70803 (9th Cir. Jan. 8, 2014).)
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of the respondent’s motion to suppress based on allegations that he was improperly held on an ICE detainer after being arrested by local police. The decision was written by Member Edward Grant. (Note: this decision was subsequently overturned by Armas-Barrenzuela v. Holder, No. 10-70803 (9th Cir. Jan. 8, 2014).)
181 Devine Street San Jose, CA 95110 U.S. Department of Justice Executive Ofce fr Imigtion Review Board of Immigration Appeals Ofce qf the Clerk 5107 Leesburg Pke, S11ite 1000 Fals Church. Vrnia 220.J Ofce of the District Counsel/SFR P .0 . Box 2649 San Francisco, CA 94126-49 Name: ARMAS-BARRANZUELA, JOSE ALBERTO A094-812114 Date of this notice: 2/26/2010 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Grat, Edwad R. Sincerely, Donna Ca Chief Clerk _ E .4 For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Jose Alberto Armas-Barranzuela, A094 812 114 (BIA Feb. 26, 2010) . . U.S. Deparment of Justice Executive 9fe fcrImmigration Review Decision of the Board oflmmigration Appeals Falls Churh, Virginia 2204 J File: A094 8 I 2 114 - San Francisco. CA In re: JOSE ALBERTO ARMAS-BARRNZUELA I RMOVAL PROCEEDIGS APPEAL Date: ON BEHALF OF RESPONDENT: Nathan M. Zaslow, Esquire ON BEHALF O F OHS: Deborah F. Ho Assistat Chief Counsel APPLICATION; Terination F 18 ZOIO The respondent, a native ad citizn of Per, appealed fom the decision of an Immigration Judge dated December 22, 2008, which denied the respondent's motion to terinate, fund the respondent subject to removal a charged, and ordered him removed. The appeal will b dismissed. We review the fndings of fact, including the deterination of credibilit, made by te Immigtion Judge uder a clearly eroneous" standard. 8 C.F.R. 1003 .1 ( d)(3 )(i). We review all oter issues, including whether te paies have met te relevat burden of proof, ad issues of discretion, uder a de novo stadad. 8 C.F.R. 1003.l(d)(3)(ii) and (iii); Mater of A-S-B-, 24 I&N Dec. 493 (BIA 2008). Te factual fndings of the Immigraton Judge are not clealy eroneous. Exercising our d novo rview, we adopt ad afr the legal conclusions of the Immigration Judge thorough ad well-reasoned decision. Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994); see generally 8 C .F-R. . {)f.. O rl .r , i.h.!&tm..Msrs t it:aa_vilaiO .. m orconstitutional rgt fr the Department of Homeland Securit (DHS) to have pJaced an immigrtion hold when he wa arested by the police. He cites Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1 994). As the Immigration Judge fund, such case is distinguishable because, unlike the alien in Orhorhaghe v. INS, supra, the respondent had been arested by police, not immigation authorities. Because he wa legally in custoy, this claim must fil. On appeal the respondent also assers that evidence of his removabilit was illegaHy obtained and must be suppressed. Te respondent must establish that a prima facie showing that DHS's conduct wa a egregious violation of his Fourh Amendment rights. Matter of Barcenas, 19 l&N Dec. 609, 61 l (BIA 1988). The Immigration Judge corectly fund that the respondent's showing falls far shor of this requirement. In fct the respondent in his afdavit (Ex. 5) and in his heai ng testimony (Tr. at 40) admits that he feely, knowingJy ad volutaly made the admissions to the DHS agent. His swor statement (Ex. 16) and the memorandum fom the OHS agent (Ex. l 0) along I m m i g r a n t
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w w w . i r a c . n e t Cite as: Jose Alberto Armas-Barranzuela, A094 812 114 (BIA Feb. 26, 2010) A094 812 114 with the For 1-213 (which is based on the respondent's own admissions) establish the elements of removabilit. We therefre concu in the Immigration Judge's fnding that the respondent's suppression claim is without merit. ORDER: The appeal is dismissed. 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Jose Alberto Armas-Barranzuela, A094 812 114 (BIA Feb. 26, 2010)
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- , UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRTION REVIEW UNITED STATES IMIGRTION COURT San Francisco, California File A 094 812 114 Decemer 22, 2008 In the Matter of JOSE ALBERTO ARMAS-BARRANZUELA, IN REMOVAL PROCEEDINGS Res p ondent CHARGE: Section 212(a) (6) (A) (i) - alien present in the United States without being aditted or p aroled. APPLICATION: Motion to terminate. ON BEHALF OF THE RESPONDENT: Nathan Zaslow, Esquire 181 Divine Street San Jose, California 95110 ON BEHALF OF THE DEPARTMENT OF HOMELND SECURITY: Charles Wood, Esquire Assistant Chief Counsel Bureau of Inigration Customs Customs Enforcement Department of Homeland Security 120 Montgomery, Suite 200 San Francisco, California 94104 ORL DECISION OF THE IMIGRTION JUDGE. The respondent was arrested by the San Francisco Police Department on ox about Decemer 13, 2006, while he was at home at his apartment, where he lived with his wife and his son .. According to his declaration, Exhibit 5, he had been drinking and J W .. . J I m m i g r a n t
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. he and his wife were having an argument. A ephew called the police and the police arrived. The respondent was arrested and was taken into custody , and placed in custody in the San Francisco county jail. He was charged with domestic violence pursuant to Section 273, inflict corporal injury upon spouse, 273.5. He was then taken to the San Francisco city and county jail. On or about December 18, 2006, he was transferred from the San Francisco county jail to county jail in Sambuno and on December 28, 2006, while he was in custody, a policeman walked into his cell and announced his name, Jose Armas, and stated that there was an attorney there to see him. He thought that it was his own attorney, but when he came out and there was a woman, he realized that it was not his attorney. She introduced herself as to being an officer from the Inigration and she wants to ask the respondent some questions. Respondent said that he did not want to answer to those questions because he was under the instructions of his lawyer not to talk to anyone. According to his declaration, she left after stating that, Mexicans. Respondent did not make any further statements. The following day on Decemer 29, 2006, respondent had criminal court hearing. The criminal judge informed him that he could be released on his own recognizance except for the fact that he had an Imigration detainer on him. And therefore, the respondent went back to custody over the new year, as he was arrested on Decemer 13. A 094 812 114 2 December 22 , 2008 I m m i g r a n t
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w w w . i r a c . n e t 1LP
( . On January 3, 2007, after the new year, an individual, another INS officer came to see the respondent, and introduced to the respondent that he was an Imigration officer and that he was going to ask some questions. He asked the respondent about his nationality and the respondent answered to the questions. Later on, the respondent was asked to sign some papes. He did not sign any papers. He was then subsequently transferred to a county jail in Yuba and under the Imigration detainer. On January 17, 2007, he had an Imigration Court in San Francisco in bond proceedings, and was released on $10,000 bond. See Exhibit 2. On January 18, 2007, the criminal court in San Francisco dismissed all the charges against the respondent. See Exhibit 6. Respondent appeared before the Court on March 29, 2007, and filed a motion to suppress and terminate. The motion to suppress require the Court to suppress any evidence introduced by the Government as a result of following the detention by the San Francisco police . The Government filed an opposition to the motion to terminate, Exhibit 8. And attached to the motion to terminate, there was two memorandums, obj ected by the respondent's counsel, from two Imigration officers allegedly from the first female Imigration who met the respondent first on Decemer 28, 2006, and the second officer who met with the respondent, interviewed him on January 3, 2007, Exhibits 9 and 10. A 094 812 114 3 Decemer 22, 2008 I m m i g r a n t
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w w w . i r a c . n e t ILP On January 22, 2008, the Court denied the motion to suppress and terminate, and the matter was reset for the respondent to state what relief he would be seeking. Respondent appeared before the Court and indicated that he did not seek any relief, only asked for termination of the proceedings. The Government introduced into evidence the record of deportable alien, Exhibit 12, and also today in open court, a record of sworn Q and A directed by the Government Imigration officer on January 3, 2007, Exhibit 16. Those are the facts that has been brought by the respondent and by evidence in the record. The issue in this case is whether, according to the respondent's counsel, whether the respondent's being placed on Imigration hold, is a violation of his fourth amendment. The next issue is whether the record of deportable alien is a trustworthy document that should be aditted as evidence to prove alienage and deportability. The fourth amendment protects the right of the people to be secured in their persons, houses, papers, and affects against the unreasonable searches and seizures. Law enforcement officers may not arrest a person in his home without an arrest warrant. Recognized exceptions include consent, hot pursuit of a fleeing felon, iminent destruction of evidence, and the risk of danger to the police or to other persons inside or outside the dwelling. See Minnesota v. Olson, 495 US. 91, 100 (1990). A 094 812 114 4 December 22, 2008 I m m i g r a n t
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w w w . i r a c . n e t iLP When a respondent questions the legality of evidence, which is this case, he must come forward with proof establishing a prima facie case that the Government's evidence was unlawfully obtained. See Matter of Barcenas, 19 I&N Dec. at 611 (BIA 1988). Admitting this burden in affidavit alone is not sufficient. Rather the testimony of the mover is required. Once respondent makes a prima facie showing, the burden shifts to the Government to prove that it obtained its evidence lawfully. In the motion to suppress, the respondent cites the case of Orhorhaghe v. INS, 38 F.3d 488 (9th Cir. 1994), and state that the Court or Ninth Circuit held that a foreign sounding name does not provide a constitutionally sufficient basis for the seizure of the person or evidence when Federal agents suspect the person is an illegal alien. The Court will note that in Orhorhaghe supra, the Ninth Circuit found that the one alleged entry into the respondent's apartment without securing his voluntary consent and based solely on the fact that he had a Nigerian-sounding name was an egregious fourth amendment violation. That case is completely distant from this case. In this case the respondent was not arrested by the Imigration official. The police of San Francisco was called by a memer of the respondent's family following an arguent which the respondent aditted to have made between him and his wife, and while he was drinking. He was taken legally into custody by the A 094 812 114 5 December 22, 2008 I m m i g r a n t
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w w w . i r a c . n e t ILP - ' police of San Francisco, and that fact was never disputed. While in custody, the Irigration officer then came and asked him some questions to which he refused. He was informed at his criminal proceedings that he could be released on his own recognizance except that he had an Immigration hold. Indeed, the undisputed fact that he was released from the San Francisco criminal system, but transferred to the custody of INS, at which time the second Imigration officer appeared and asked him questions. According to the respondent's declaration, Exhibit 5, he answered to the question willfully and voluntarily. He stated that he aditted his nationality. The Government moved into evidence the I-213 supported by.the statement the respondent identified during and following the interview with the INS officer, Exhibit 16. Respondent appeared before th Court today and was instructed by his counsel not to answer to any question regarding his nationality . The Court has evidence in the record, however, that this respondent , according to the I-213, which he said that he provided the information voluntarily, which is Exhibit 12, record of deportable alien, and supported by the statement he admitted to have made and identified, Exhibit 16, that he is from Peru. Indeed, Exhibit 16 indicates that he was born on October 16, 1963, at Trujillo, La Libertad, Peru. Respondent in this case has not provided information that the information contained in the I-213, as well as in the Exhibit 16, is incorrect. That is, it is not related to him and that was obtained by coercion or A 094 812 114 6 Decemer 22, 2008 I m m i g r a n t
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w w w . i r a c . n e t lLP duress. The Court has to find that the I-213 is inherently trustworthy and is admissible as evidence to prove alienage and deportability. The Court finds that the respondent has not presented a prima facie case of a fourth amendent violation warranting suppression of his statements. OHS is not required to provide the Court with reasonable explanation regarding this claimed constitutional violation. And based on the respondent's declaration, Exhibit 5, pursuant to which he provided voluntarily information regarding his nationality to the INS officer based on Exhibit 12, which is a record of deportable alien, pursuant to which the information provided to the Imigration officer was that he is from Peru and that he is having no status in the United States and it was provided freely by the respondent to the INS officer, Exhibit 12, supported by Exhibit 16. I find, based on those evidence, that the factual allegations 1, 2, 4, sustained by the Government. And therefore, I further find that the removability charge under Section 212(a) (6) (A) (i) is also supported by the record. The Court, based on the evidence .on the I-213, Exhibit 12, and the Q and A statement, Exhibit 16, that Peru is designated as country of removal. As the respondent is not seeking for any relief, he bas not requesting for voluntary departure, and as the Court has found that he is removable as charged, it is a Court order that A 094 812 114 7 December 22, 2008 I m m i g r a n t
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w w w . i r a c . n e t ILP the respondent be ordered removed from the United States to Peru. That is a Court order. A 094 812 114 8 Decemer 22, 2008 I m m i g r a n t
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CERTIFICATE PAGE I hereby certify that the attached proceeding before PHAN-QUANG TUE in the matter of: JOSE ALBERTO ARMS-BARRANZUELA A 094 812 114 San Francisco, California was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Imigration Review. Deposition Services, Inc. 6245 Executive Boulevard Rockville, Maryland 20852 (301) 881-3344 February 13, 2009 {Completion Date) I m m i g r a n t