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Zaslow, Nathan M., Esq.

Law Oice of Nathan M. Zaslow


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For more unpublished BIA decisions, visit www.irac.net/unpublished
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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
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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.
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Cite as: Jose Alberto Armas-Barranzuela, A094 812 114 (BIA Feb. 26, 2010)

l

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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
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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
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( .
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
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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
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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
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'
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
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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
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the respondent be ordered removed from the United States to Peru.
That is a Court order.
A 094 812 114 8 Decemer 22, 2008
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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)
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