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U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5/07 leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - NYC

26 Federal Plaza, 11th Floor

Name: SERRANO ROJAS, JAIME

A 09 4-222-350

New York, NY 10278

Riders:OSS-439-259
Date of this notice: 11/4/2014

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

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jaime Serrano Rojas, A094 222 350 (BIA Nov. 4, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Russell, C. Mario
Catholic Charities
1011 First Ave.12th fl
New York, NY 10022

U.S. Department of Justice


Executive Office for Immigration Review
Falls Church, Virginia 20530
.

'

Decision of the Board of Immigration Appeals

A094 222 350-New York, NY

Files:

Date:

A088 439 259

NOV

4l014

JAIME SERRANO ROJAS

In re:

IN REMOVAL PROCEED INGS


APPEAL
ON BEHALF OF RESPONDENTS:

C. Mario Russell, Esquire

CHARGE:
Notice:

Sec.

APPLICAT ION:

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (both respondents)

Termination; motion to withdraw pleadings

The respondents, natives and citizens of Mexico, have appealed from an Immigration Judge's
December 6, 2012, separate decisions ordering them removed from the United States.

The

Department of Homeland Security ("DHS") has not filed a response to the respondents' appeal.
The request for oral argument is denied. The record will be remanded with regard to respondent
Jaime Serrano Rojas. Respondent Pablo Serrano-Retana's appeal will be dismissed.
On July 15, 2011, the Immigration Judge granted the DHS's motion to consolidate the
proceedings of respondents Jaime Serrano Rojas and Pablo Serrano-Retana.

Prior to the

consolidation, respondent Pablo Serrano-Retana had filed a motion for change of venue along
with written pleadings conceding removability and requesting voluntary departure. On April 12,
2010, the Immigration Judge granted the motion for change of venue.

On December 20, 2010,

respondent Pablo Serrano-Retana filed a motion to withdraw the pleadings. Respondent Jaime
Serrano Rojas filed a motion to suppress evidence and terminate the proceedings on April 1,
2011.

Respondent Pablo Serrano-Retana was not included in the motion to suppress and

terminate the proceedings.


On December 6, 2012, the Immigration Judge issued two separate decisions addressing the
respondents' separate motions. With regard to respondent Jaime Serrano Rojas, the Immigration

Judge denied his motion to suppress the evidence of his alienage and inadmissibility presented
by the DHS and his motion to terminate the proceedings and ordered him removed to Mexico.
With regard to respondent Pablo Serrano-Retana, the Immigration Judge denied his motion to
withdraw pleadings and ordered him removed to Mexico. The respondents have appealed both
of the Immigration Judge's decisions in a consolidated appeal.
Jaime Serrano Rojas, the lead respondent in this case, argues that he made out a prima facie
case of an egregious violation of his Fourth Amendment rights and violations of his Fifth
Amendment due process rights and that the Immigration Judge should have held a suppression

Cite as: Jaime Serrano Rojas, A094 222 350 (BIA Nov. 4, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

PABLO SERRANO-RETANA

A094 222 350 et al.

hearing and shifted the burden to the DHS to show why the evidence of his alienage should be
admitted.

After the Immigration Judge rendered her decision, and the briefing deadlines

imposed in this case expired, the United States Court of Appeals for the Second Circuit issued

Cotzojay

v.

Cir. 2013).

Holder,

725 F.3d 172 (2d Cir. 2013), and

Pretzantin

v.

Holder,

736 F.3d 641 (2d

These cases have direct bearing on the Immigration Judge's decision denying the

consideration of the lead respondent's motion to terminate and suppress evidence. On remand,
the parties will be afforded the opportunity to present new evidence and new legal arguments.
As noted above, respondent Pablo Serrano-Retana did not file a motion to suppress and
terminate the proceedings.

Rather, in conjunction with a motion to change venue, he filed

written pleadings in which he admitted his alienage, conceded removability and requested
voluntary departure.

On December 20, 2010, the respondent moved to withdraw his written

pleadings and concession of removability.

In a separate decision on December 6, 2012, the

Immigration Judge denied the respondent's motion to withdraw the written pleadings after
finding that he made a strategic choice to admit the allegations and concede the charges to
increase his chances of securing a change of venue and that the record is devoid of any evidence
contradicting the pleadings (Dec. 6, 2012, l.J. Dec. at 3). The distinct and formal concession of
removability, made by the respondent's attorney acting in his professional capacity, and the
respondent's signing of a document stating that he understood and agreed with the written
pleadings, is binding on the respondent as a judicial admission.
Dec. 377 (BIA 1986).
removability,

See

as

Matter of Velasquez,

19 I&N

As the Immigration Judge found the respondent's attorney conceded

so charged, and that concession of removability is binding on the respondent.

I.J. at 3; Exhs. 3, 7, Tab A at 11-12, Tab B at 2-3;

Hoodho v. Holder,

558 F.3d 184, 191 (2d

Cir. 2009) (holding that "facts admitted by a party are 'judicial admissions that bind th[at] [party]
throughout th[e] litigation."').
Accordingly, the following orders are entered.
ORDER: Respondent Pablo Serrano-Retana's appeal (A088 439 259) is dismissed.
FURTHER ORDER:

The record is remanded with respect to respondent Jaime Serrano

Rojas's appeal (A094 222 350) for further proceedings consistent with the foregoing opinion and
for the entry of a new decision.

Cite as: Jaime Serrano Rojas, A094 222 350 (BIA Nov. 4, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

lead respondent's motion to suppress evidence and to terminate the proceedings. Given the
Second Circuit's intervening precedent decisions, the record will be remanded for further

ONITED STATES DEPARTMENT OF

JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

IMMIGRATION COURT

26

FEDERAL PLZ
NEW YORK,

MARIO

RUSSELL, BSQ.

CATHOLIC CHARITIES ARCH OF NEW YORK

1011

12
10022

lST AVENUE,

NEW YORK, NY

FLOOR

IN THE MATTER OF
SERRANO ROJAS I

FILE A

JAIME ET AL.

UNABLE TO FORWARD

094-222-350/088-439-259
. .

DATE:

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

30

2012

NO ADDRESS PROVIDED

IS FINAL UNLESS AN APPEAL IS FILED WITH


WITHIN

Dec 6,

CALENDAR DAYS OF

THE

THE

THIS DECISION

BOARD 'OF IMMIGRATION APPEALS

DATE OF THE MAILING OF THIS WRITTEN DECISION.

SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS

MUST BE MAILED TO:

OFFICE OF THE CLERK


P.O.

BOX

8530

FALLS CHURCH, VA
ATTACHED IS A COPY OF

THE

DECISION OF

22041

THE

IMMIGRATION JUDGE AS

THE

RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.


THS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE

TH

WI

242B(c) (3) OF THE IMMIGRATION AND


52B(c ) (3) IN DEPORTATION PROCEEDINGS

SECTION

SECTION l2

o.s.c.

NATIONALITY ACT,

SECTION l229a(c)(6) IN REMOVAL PROCEED:I:NGS.

TO REOPEN,

O.S.C.

OR SECTION 240(c) (6),


IF YOO FILE A MOTION

YOUR MOTION MOST BE FILED WITH THIS COURT:


IMMIGRATION COURT
26 FEDER.AL PLZ l2TH FL.,RMl237

NEW YORK, NY

10278

IJ WlliftBR DBC%SION A'l''l'ACBBD.

FF
CC:

DISTRICT COUNSEL,

26 FEDERAL PLAZA,

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ft.

NYC DISTRICT
ROOM

10278

#1130

A COPY OFTHIS DECISION WAS


Al.JEN
PER80NALLVSERVED

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Immigrant & Refugee Appellate Center | www.irac.net

A'l"l'N:

l2TH FL.,RMl237
10278

NY

r
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
26 FEDERAL PLAZA
NEW YORK, NEW YORK

In the Matter of
SERRANO ROJAS, Jamie

: IN REMOVAL PROCEEDINGS

Respondent

CHARGE:

INA 212(a)(6)(A)(i)

APPLICATIONS:

Motion to Suppress
Motion to Terminate

ON BEHALF OF THE RESPONDENT


C. Mario Russell, Esq.
Catholic Charities
1011 First Avenue
New York, NY 10022

Present without being Admitted or


Paroled

ON BEHALF OF DHS
Lisa Radcliffe, Esq.
Deputy Chief Counsel
26 Federal Plaza, Suite 1130
New York, NY 10278

DECISION AND ORDER OF THE IMMIGRATION JUDGE


I.

PROCEDURAL HISTORY

Jaime Serrano Rojas ("the Respondent"), a thirty-four-year-old male, is a native


of Mexico. [Department of Homeland Security ("DHS") Opposition, Tab A at 10, 14.]
On December 17, 2009, while working as "a forklift operator and UPS shipment
scanner," he was arrested at his place of employment by DHS, Immigration and Customs
Enforcement ("ICE") and New York State troopers. [The Respondent's Motion, Tab A
at iI 1-7.] He was charged with f alsifying business records in the second degree in
violation of New York Penal Law ("NYPL") 175.05(1) and later convicted of criminal
trespass in the third degree in violation of NYPL 140.10. [DHS Opposition, Tab A at
1, 4-7.] On March 4, 2010, DHS served the Respondent with a Notice to Appear
(''NTA") charging him with removability under Immigration and Nationality Act
("INA") section 212(a)(6)(A)(i) for entering the United States without being admitted or

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File No: A094-222-350

paroled. [Exhibit ("Exh.") I.] On March 22, 2010, DHS served the Immigration Court
with the NTA, commencing proceedings. The Respondent denied the allegations and the
charges, moved to suppress all of the evidence filed against him, and moved to terminate
the proceedings. The case was later consolidated with the proceeding involving Pablo
Serrano-Retana (A088-439-259). For the reasons that follow, the Court denies the
motions and will admit a portion of the conviction record into evidence.
EXHIBITS

The following document was entered into evidence and made part of the record:
Exhibit 1:

Notice to Appear, served March 4, 2010.

The following documents were submitted, but not admitted into the record:
The Respondent's Memorandum of Law in Support of Motion to Suppress Evidence and
Terminate Proceedings ("The Respondent's Motion"), Tabs A-I:
Tab A:
Jaime Serrano Affidavit, dated March 30, 2011;
Tab B:
Affidavit of Veronica Serrano, the Respondent's sister, dated
March 17, 2011;
Affidavit of Wendy Contreras, the Respondent's wife, dated
Tab C:
March 17, 2011;
Affidavit of Aislinn Rodriguez, the Respondent's niece, dated
Tab D:
March 17, 2011;
Affidavit of Juana Rojas, the Respondent's mother, dated March 17, 2011;
Tab E:
Affidavit of Stephanie Benitez, niece of the Respondent's brother-in-law,
TabF:
dated March 17, 2011;
Rose-Adorno Letter, dated May 26, 2010;
Tab G:
Tab H:
Photos of the Respondent's Apartment;
Case Law.
Tab I:
DHS's Brief in Support of lnadmissibility and in Opposition to the Respondent's Motion
to Suppress and Terminate ("DHS Opposition"), Tabs A-E:
Tab A:
The Respondent's Conviction Record;
Tab B:
The Respondent's RAP sheet;
Immigration Bond Application;
Tab C:
Tab D:
Mid-Hudson News article, dated December 17, 2009;
Form 1-213, Record of Deportable/lnadmissible Alien.
Tab E:
III.

LEGAL STANDARDS AND ANALYSIS


A.

Alienage

Where a respondent is charged as being in the United States without admission or


parole, DHS bears the initial burden of establishing alienage. See 8 C.F.R. 1240.S(c).
To establish alienage, DHS must prove that the respondent is "not a citizen or national of

Immigrant & Refugee Appellate Center | www.irac.net

II.

the United States." INA 10l(a)(3). Evidence of foreign birth is prima facie evidence of
alienage. Matter of Ronadia-Herreros, 11 l&N Dec. 772, 774 (BIA 1966); Matter of A
M-, 7 I&N Dec. 332, 336 (BIA 1956). If DHS proves alienage, the respondent bears the
burden of establishing, by clear and convincing evidence, that he or she is lawfully
present in the United States pursuant to a prior admission. See INA 240(c)(2)(B); 8
C.F.R. 1240.8(c); Matter of Tijerina-Villarreal, 13 l&N Dec. 327, 330 (BIA 1969).

B.

Motion to Suppress

The Respondent has not sought to establish that he is lawfully present in the
United States. Rather, he moves to suppress all of the evidence presented against him,
arguing that it was obtained in egregious violation of the Fourth and Fifth Amendments
to the United States Constitution. [The Respondent's Motion, at 16.]
To succeed on a motion to suppress, the moving party must "come forward with
proof establishing a prima facie case" for suppression. Matter of Burgos, 15 l&N Dec.
278, 279 (BIA 1975); Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988). Any
statements in support of a motion to suppress "must be specific and detailed" and "based
on personal knowledge." Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971). The
moving party must also enumerate "[t]he articles to be suppressed." Id.
1

OHS also submitted other evidence indicating that the Respondent was born in Mexico. For example,

OHS submitted a questionnaire apparently signed by the Respondent and a Form 1-213. [OHS Opposition,
Tabs A, E.] These documents, however, were generated as a result of actions that the Respondent claims
violated his regulatory and Constitutional rights. Because the Court concludes that the Respondent failed
to come forward with prima facie evidence for suppression of the A irport Security Badge Request form,
which establishes his alienage, the Court need not determine whether to suppress these documents.
Additionally, OHS also submitted a bond application indicating that the Respondent was born in Mexico.
Id., Tab C. The application was not signed or filled out by the Respondent, and the Court concludes that it
is not reliable evidence of the Respondent's alienage. Similarly, OHS has also submitted a newspaper
article indicating that the federal authorities and the local district attorney's office announced the
Respondent's arrest and described him as an "illegal immigrantO," who was purportedly born in Mexico.

M.. Tab 0. There is no indication in the article that the Respondent admitted alienage or removability or

that the officers had a legitimate basis for the assertion or indeed, what formed the basis of the assertion.
Such allegations by law enforcement, even when published in a newspaper, are insufficient by themselves
to establish the Respondent's alienage. Id.

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Here, to establish alienage, DHS submitted an Airport Security Badge Request


form, which contains the words "Stewart ... Airport" on the top. [DHS Opposition, Tab A
at 10, 12.] This form lists the Respondent as the applicant and Empire Warehouse
Solutions, Inc. as the company. Id. at 9. The instructions require the applicant to answer
all of the questions "completely and truthfully." Id. This form, which bears the
Respondent's signature attesting to the fact that all the information on the form is ''true,
complete, and correct," indicates that the Respondent was born in Mexico. Id. at 10, 12.
Because this document, presumably executed by the Respondent himself, indicates that
he was born abroad, it constitutes independent prima facie evidence of his alienage, and
the burden shifts to the Respondent to establish by clear and convincing evidence that he
is lawfully present in the United States. See Matter of Ronadia-Herreros, 11 l&N Dec. at
1
774; Matter of A-M-, 7 I&N Dec. at 336; INA 240(c)(2)(B); 8 C.F.R. 1240.8(c).

1.

Fourth Amendment

Generally, a Fourth Amendment violation is not a basis for suppression because


the Fourth Amendment exclusionary rule does not apply in removal proceedings. See
INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984). However, suppression may be
warranted under the Fourth Amendment when the evidence indicates "either (a) that an
egregious violation that was fundamentally unfair has occurred, or (b) that the
violation-regardless of its egregiousness or unfairness-undermine[s] the reliability of
the evidence in dispute." Rajah v. Mukasey, 544 F.3d 427, 441 (2d Cir. 2008) (quoting
Almeida-Amaral v. Gonzales, 461F.3d 231, 235 (2d Cir. 2006)). Thus, to establish a
prima facie case for suppression in this case, the Respondent must articulate facts based
upon personal knowledge, establishing that the Airport Security Badge Request form was
obtained in egregious violation of his Fourth Amendment rights. See Almeida-Amaral v.
Gonzales, 461 F.3d at 235; Matter of Burgos, 15 I&N Dec. at 279.
Here, the Respondent submitted an affidavit detailing how ICE officers and state
troopers came to his place of employment, questioned him, and detained him. According
to the Respondent, after he was handcuffed and shackled, he told the officers that he had
"an identity card of some kind" in his car. [The Respondent's Motion, Tab A at 22.]
After the Respondent opened the door of his car for the officers, they searched his car and
"found some of [his] personal documents." Id. at 23. The Respondent does not state
what documents the officers obtained. According to the Respondent, he was taken to a
"police office or station" where he was asked for his name, age, address, place of birth,
level of education, where his family was, where his documents came from, and how he
obtained them. Id. at 25, 28. The Respondent does not indicate whether he answered
any of these questions. The Respondent states that after approximately thirty minutes he
was told to sign a statement. Id. at 29. He admits signing the statement. Id. at 30.
The next morning, the Respondent was allegedly "made to answer identifying questions."
Id. at 32. The Respondent does not indicate whether the officer recorded his answers.
The Respondent also submitted affidavits from his family members, indicating that ICE
officers came to their home and took some personal documents. [See The Respondent's
Motion, Tabs B-E.] The affidavits do not identify the documents that were taken; they
merely refer to them as "personal documents," "papers," or "documents." lib Tab A at
23; Tab B at 21, 27; Tab C at 20-21; Tab D at 29, 31; Tab E at 45.
The facts contained in these affidavits, however, do "not form a basis for
excluding the evidence" based upon an egregious Fourth Amendment violation.

Immigrant & Refugee Appellate Center | www.irac.net

Where an affidavit alleges facts that, if true, ''would not form a basis for
excluding the evidence, suppression is not warranted and the contested document may be
admitted into evidence." Barcenas, 19 I&N Dec. at 611. If the affidavit alleges facts that,
if true, "could support a basis for excluding the evidence in question, then the claims
must also be supported by testimony." Id. Thus, "a mere demand for a suppression
hearing is not enough to cause one to be held"-the moving party must first establish a
prima facie case for suppression. Wong, 13 l&N Dec. at 822; Barcenas, 19 I&N Dec. at
611.

. .

2.

Fifth Amendment

The Respondent also moves to suppress all of the evidence submitted against him
on the basis that it was all obtained in violation of the Fifth Amendment. [The
Respondent's Motion, at 16, 21-22.] According to the Respondent, his Fifth Amendment
rights were violated when he was "seized, cuffed, restrained, threatened, and interrogated
at the workplace" and when "his family and home were threatened and invaded without a
warrant in the middle of the night while he was jailed and held for the whole night." Id.
at 23. However, he does not allege, let alone prove, that the Airport Security Badge
Request form was obtained in violation of the Fifth Amendment or that the document
lacks the probative force required by the Fifth Amendment. See id. at 21 (citing Matter
of Toro, 17 l&N Dec. 340 (BIA 1980)). Indeed, DHS submitted an affidavit from an ICE
officer, explaining the manner in which the document was acquired. [DHS Opposition,
Tab A at 8 (stating that the ICE officer "examined a number of Airport Security badge
request forms at the Operations Office at Stewart International Airport" and that the
Respondent's application "includes a resident alien number ...which...belong[s] to
another individual").] The Respondent does not dispute how ICE acquired the document.
Because the Respondent does not allege facts that, if proven, would be sufficient to
establish a Fifth Amendment violation, the Respondent has failed to "come forward with
proof establishing a prima facie case" for suppression based upon a Fifth Amendment
violation. Burgos, 15 I&N Dec. at 279; see also Barcenas, 19 I&N Dec. at 611.

Immigrant & Refugee Appellate Center | www.irac.net

Barcenas, 19 I&N Dec. at 611. ICE obtained the Airport Security Badge Request form,
which establishes the Respondent's alienage, from the "Operations Office at Stewart
International Airport" two weeks prior to the workplace investigation. [DHS Opposition,
Tab A at 8.] The Respondent does not dispute this fact, or even allege that the purported
Fourth Amendment violation had any influence on DHS's acquisition of the Airport
Security Badge Request form, which is dated September 16, 2008. Id. at 10, 12; see also
Matter of Velasquez, 19 l&N Dec. 377, 380 (BIA 1986) (upholding the denial of the
respondent's motion for a suppression hearing because "the Service never introduced, or
attempted to introduce, any evidence or admissions obtained from the respondent at the
time of his arrest and detention"). Indeed, the Airport Security Badge Request form was
created months before the raid occurred. See [DHS Opposition, Tab A at 8 (Airport
Security Badge Request form, dated August 17, 2009)]; see also [The Respondent's
Motion, Tab A (indicating that the raid occurred on December 17, 2009).] Although
several affidavits mention that officers took personal documents, none of the affidavits
describe the nature or the contents of these documents. See [The Respondent's Motion,
Tabs A-E.] Because the Respondent does not allege facts that, if proven, would be
sufficient to establish a Fourth Amendment violation related to the acquisition of the
Airport Security Badge Request form, the Respondent has failed to "come forward with
proof establishing a prima facie case" for suppression based upon a Fourth Amendment
violation. Burgos, 15 I&N Dec. at 279; see also Barcenas, 19 I&N Dec. at 611.

..

3.

Conclusion

In sum, the Respondent failed to establish a Fourth or Fifth Amendment violation.


Thus, the Respondent has not established a prima facie case for suppression of the
Airport Security Badge Request form. Accordingly, the Court denies the motion to
suppress.
Motion to Terminate
1.

Burden of Proof

The Respondent argues that the Court should terminate the proceeding on two
grounds. First, he argues that DHS has failed to meet its burden of proving his alienage
because all of the evidence presented against him should be suppressed. Because the
Court denies the Respondent's motion to suppress and will admit the Airport Security
Badge Request form, the Court denies the motion to terminate insofar as it seeks
termination for the failure of DHS to meet its burden of proving alienage.
2.

Regulatory Violations

The Respondent also argues that the Court should terminate these proceedings
because ICE violated seven federal regulations while at his place of employment and
three federal regulations while at his home. [The Respondent's Motion, at 23, 24, 31, 40,
43, & 50.] A hearing is not required until the Respondent submits proof establishing a
prima facie case for termination based upon a regulatory violation. See Burgos, 15 I&N
Dec. at 279; Barcenas, 19 I&N Dec. at 611.
A regulatory violation that occurs during removal proceedings requires
termination of an immigration proceeding in two circumstances: (1) if the violated
regulation was promulgated to protect a fundamental right guaranteed by the Constitution
or a federal statute, or (2) if the violation did not affect a fundamental right, but can be
shown to have otherwise prejudiced the rights protected by the regulation. Waldron v.
INS, 17 F.3d 511, 518 (2d Cir. 1993); Rajah, 544 F.3d at 446-47 (expressly limiting the
holding in Waldron to violations that occur during removal proceedings). A regulatory
violation that occurs prior to the removal proceedings is not a ground "for termination,
absent prejudice that may have affected the outcome of the proceeding, conscience
shock.ing conduct, or a deprivation of fundamental rights." Rajah, 544 F.3d at 447.
Further, "aliens are not entitled to termination of their proceedings for harmless, non
egregious pre-hearing regulatory violations." Id. Egregiousness is based upon not only
the validity of the stop, but also the "characteristics and severity of the offending
conduct." Almeida-Amaral, 461 F.3d at 235 (discussing egregiousness in the context of
Fourth Amendment violations).

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C.

i.

Violations at the Workplace


a.

8 C.F.R. 287.3(c)

Here, all the purported violations of this regulation admittedly occurred before the
NTA was filed with the immigration court on December 18, 2009. [The Respondent's
Motion, at 32, 40-41; see also Exh. l.] Thus, the Respondent has not established his
entitlement to any of these advisals, or that this particular regulation was otherwise
applicable to him at the time of his arrest. Because the Respondent has failed to allege
facts that would support a finding that ICE violated this regulation, he has failed to
establish a prima facie case for termination on this ground. See E-R-M-F-, 25 l&N Dec.
at 583; Burgos, 15 I&N Dec. at 279; Barcenas, 19 I&N Dec. at 611.
b.

C.F.R. 287.8(c)(2)(v)

"With respect to a person arrested and charged with a criminal violation of the
laws of the United States, the arresting officer shall advise the person of the appropriate
rights as required by the law at the time of the arrest or as soon thereafter as practicable."
8 C.F.R. 287.8(c)(2)(v). Although the Respondent was charged with criminal
violations of the laws of New York State, see [DHS Opposition, Tab A], he has not
submitted proof of, or even alleged that, he was ever "charged with a criminal violation
of the laws of the United States." Id. Because the Respondent has failed to allege facts
that would support a finding that ICE violated 8 C.F.R. 287.8(c)(2)(v), he has failed to
establish a prima facie case for termination on this ground.

c.

8 C.F.R. 287.8(t)(2), (c)(2)(ii), (c)(2)(vii),


292.S(b), 287.3(d)

The Respondent also alleges violations of several other regulations. Sections


287.8(f)(2) and (c)(2)(ii) require immigration officers to obtain search and arrest
warrants; section 287.8(c)(2)(vii) prohibits immigration officers from using threats,
coercion, or physical abuse to obtain a waiver or admission; section 292.5(b) provides the
right to counsel "[w]henever an examination is provided for in this chapter, the person
2

The Respondent argues that 8 C.F.R. 292.5 also creates a "[d]uty to [i]nfonn" the Respondent of his
Sixth Amendment right to counsel. [The Respondent's Motion, at 40.] This regulation, which provides in
relevant part that "[w]henever an examination is provided for in this chapter the person involved shall have
the right to be represented by an attorney or representative," does not include any "duty to inform."

Immigrant & Refugee Appellate Center | www.irac.net

"[A]n alien arrested without warrant and placed in formal proceedings...will be


advised of the reasons for his arrest and the right to be represented.... The officer will
also advise the alien that any statement made may be used against him or her in a
subsequent proceeding." 8 C.F.R. 287.3(c).2 An alien, however, is not entitled to these
"advisals until he or she is 'placed in formal proceedings."' Matter of E-R-M-F- & A-S
M-, 25 I&N Dec. 580, 583 (BIA 2011) (quoting 8 C.F.R. 287.3(c)). A removal
proceeding is formally "commenced by the filing of a notice to appear with the
immigration court." 8 C.F.R. 1239.l(a).

These violations, as alleged by the Respondent, are "harmless, nonegregious, pre


hearing violations," and the record is devoid of any "prejudice that may have affected the
outcome of the proceeding, conscience-shocking conduct, or a deprivation of
fundamental rights. " Rajah, 544 F.3d at 447; see id. at 443-45 (specifically addressing
violations of 8 C.F.R. 287.8(c)(2)(ii), (vii), and 292.S(b)). Admittedly, all of the
violations occurred before the hearing. [The Respondent's Motion, at 32, 40-41.]
Additionally, these violations were entirely harmless because DHS has submitted
evidence, obtained before these violations occurred, which establishes the Respondent's
alienage. [See DHS Opposition, Tab A at 8-16.] Thus, even if these violations had not
occurred, the result in this proceeding would have been exactly the same.
Finally, even if ICE technically violated these provisions, its conduct, even
according to the Respondent's version of events, was not egregious. Almeida-Amaral,
461 F.3d at 235. Even accepting the Respondent's assertions as factually correct that the
officers surrounded the Respondent, questioned him aggressively, displayed weapons,
used police dogs, and arrested him, these described acts, while unpleasant, are
characteristics of a routine law-enforcement investigation. Further, ICE initially
questioned him for less than three hours. 3 [See the Respondent's Motion, Tab A at 1
(indicating that the investigation occurred between 1 and 2 am); DHS Opposition, Tab A
at 3 (indicating R signed a statement at 2:40am)]; cf. Singh v. Mukasey, 53 F.3d 207, 215
(2d Cir. 2009) (the respondent's statement was unreliable because, among other things,
he was interrogated for four to five hours, broke down crying during the interrogation,
had not slept for approximately twenty-four hours, and had never read the statement he
was asked to sign). He has never alleged that he was deprived of food or sleep or that he
was physically harmed in any way. Cf. Singh, 53 F.3d at 215. Finally, ICE obtained
evidence of the Respondent's alienage two weeks prior to the workplace visit in an
investigation of that workplace. [DHS Opposition, Tab A, at 8.] Therefore, ICE had a
legitimate reason for stopping the Respondent-suspicion that he was an alien in the
country who was working at an airport facility without authorization. Cf. Almeida
Amaral, 461 F.3d at 235 (holding that "a seizure for no reason at all. . . may constitute an
egregious violation). Moreover, the Respondent does not allege, and the record does not
contain, any evidence suggestin g that ICE stopped the Respondent because of his race or
"some other grossly improper consideration." Almeida-Amaral, 461 F.3d at 235. Rather,
it appears that he was stopped along with other individuals during a workplace
enforcement action, where DHS already had in its possession documentary evidence
relating to Respondent. Thus, the Respondent has failed to establish a prima facie case
3 The Respondent was also allegedly taken to criminal court and questioned later that morning. [The
Respondent's Motion, Tab A at 111131-33.]

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involved shall have the right to be represented by an attorney or representative"; section


287.3(d) provides that "a determination will be made within 48 hours of the
arrest . ..whether a notice to appear ... will be issued." The Court will assume, without
deciding, that the Respondent has established that ICE violated these regulations.
Although the Court has determined, as discussed above, that the Respondent has failed to
establish that ICE violated 8 C.F.R. 287.3(c), 287.8(c)(2)(v), for the purposes of this
analysis, the Court will also assume ICE violated these two provisions.

G
for termination based upon the alleged regulatory violations that occurred at his place of
employment.
ii.

Violations at Home
a.

8 C.F.R. 287.8(t)(2), (c)(2)(ii), (vii)

The Court assumes, without deciding, that these affidavits are prima facie
evidence of egregious regulatory violations. Therefore, these regulatory violations are
different from the "nonegregious" violations addressed in Rajah. 544 F.3d at 447.
However, in some important respects, the violations here are similar to the violations
described in Rajah. First, as in Rajah, the violations occurred before the hearing. Id. at
447; see [The Respondent's Motion, Tab A.] Second, the violations were harmless
because ICE obtained evidence of the Respondent's alienage two weeks before this
incident occurred. See Rajah 544 F.3d at 448; [DHS Opposition, Tab A at 8.]
Although the case law does not expressly address the remedy for an egregious, yet
harmless, pre-hearing regulatory violation, any remedy must balance ''the rights of aliens,
deterring government misconduct, and enabling reasonably efficient law enforcement."
Id.; see generally Lopez-Mendoza, 468 at 1044-49. Termination of a removal proceeding
is a "draconian remedy." Rajah, 544 F.3d at 446. Indeed, Montilla v. INS, 926F.2d 162
(2d Cir. 1991), is the only case where the Second Circuit has terminated a proceeding
based upon a regulatory violation, and in that case, the regulatory violation occurred
during the proceeding. Id. at 164-66.
Here, the violations might require, at most, suppression of evidence, not
termination of the proceeding, assuming that such evidence had been filed acquired and
filed against Respondent. Respondent, however, suffered no prejudice because the
alleged violation did not result in the acquisition of any evidence that is being used in this
proceeding. See Valasguez, 19 l&N Dec at 380. Indeed, the Respondent does not
identify which of the documents DHS now offers into evidence were seized from his
home. See [The Respondent's Motion, Tab A at if 23; Tab B at iii! 21, 27; Tab C at irif 2021; Tab D at iii! 29, 31; Tab E at if 45.] Second, the violations occurred pre-hearing.
Thus, the next hearing will be no more fair than the first, and as a result, termination

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The Respondent also urges the Court to terminate the proceedings based upon
regulatory violations that occurred at his home. The Respondent submitted affidavits
from his family members who were at the home when the alleged violations occurred.
These affidavits allege that the occupants refused to allow ICE officers to enter their
home. In response, the officers obtained consent to enter an adjacent apartment and
opened a locked door that adjoined the two apartments. According to the affidavits, the
officers aggressively interrogated the Respondent's family, told the children to "shut up,"
and ')abbed" a little girl on the shoulder hard enough that she fell down. [See The
Respondent's Motion, Tabs B-E.] The ICE officers also took unspecified personal
documents. [The Respondent's Motion, Tab A at if 23; Tab B at iii! 21, 27; Tab C at iii!
20-21; Tab D at ifil 29, 31; Tab E at if 45.]

..

would permanently prevent the removal of what appears to be an otherwise removable


alien. Rajah, 544 F.3d at 446-47. Third, terminating the proceeding would not motivate
ICE to follow the regulations any more than the threat of suppression would. see id. at
447 (considering the deterrent effect of termination). For these reasons, the Court denies
the Respondent's motion to terminate.

CONCLUSION

In sum, DHS met its initial burden of establishing alienage by submitting the
Airport Security Badge Request form. See 8 C.F.R. 1240.S(c). The Respondent moves
to suppress this document, arguing that ICE violated his Fourth Amendment rights. The
Respondent, however, failed to establish a prima facie case for suppression. Specifically,
he failed to establish that the Airport Security Badge Request form was obtained in
egregious violation of the Respondent's Fourth Amendment rights. See Almeida
Amaral, 461 F.3d at 235; Matter of Burgos, 15 I&N Dec. at 279. The Respondent also
urges the Court to suppress all the evidence on Fifth Amendment due process grounds.
The Court concludes, however, that the Airport Security Badge Request form is
"probative and its use fundamentally fair." Matter of Toro, 17 I&N Dec. 340, 343 (BIA
1980). Accordingly, the Court denies the motion to suppress.
The Respondent also urges the Court to terminate these proceedings, arguing that
ICE committed various pre-hearing regulatory violations. The Court denies the motion to
terminate. The Respondent failed to establish a prima facie case for termination based
upon the alleged regulatory violations that occurred at his workplace because the
violations were harmless, nonegregious, and pre-hearing, and he did not prove the
existence of "prejudice that may have affected the outcome of the proceeding,
conscience-shocking conduct, or a deprivation of fundamental rights." Rajah, 544 F.3d at
448. The Court assumes, for the sake of argument, that the regulatory violations that
occurred at his home were egregious. The case law, however, is unclear as to the proper
remedy for harmless, egregious, pre-hearing regulatory violations. The Court concludes
that suppression, not termination, would be the proper remedy had the Respondent
established that any information obtained from his home was used against him.
Respondent failed to make this showing. Accordingly, the Court denies the Respondent's
motion to terminate.

10

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"IV.

c
.

The Respondent, through counsel, declined to apply for any relief from removal.
Accordingly, the following orders will be entered:

ORDERS

IT IS FURTHER ORDERED that the Respondent's motion to terminate is DENIED.


IT IS FURTHER ORDERED that the Respondent be removed to Mexico on the charge
contained in the Notice to Appear.

Date

Aviva L. Poczter
Immigration Judge

11

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IT IS HEREBY ORDERED that the Respondent's motion to suppress is DENIED.

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
26 FEDERAL PLAZA
NEW YORK, NEW YORK
File No: A088-439-259

SERRANO-RETANA, Pablo

: IN REMOVAL PROCEEDINGS

Respondent

CHARGE:

APPLICATION:

INA 212(a)(6)(A)(i)

Present without being Admitted or


Paroled

Motion to Withdraw Pleadings

ON BEHALF OF THE RESPONDENT


C. Mario Russell, Esq.
Catholic Charities
1011 First Avenue
New York, NY 10022

ON BEHALF OF DHS
Lisa Radcliffe, Esq.
Deputy Chief Counsel
26 Federal Plaza, Suite 1130
New York, NY 10278

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.

PROCEDURAL IDSTORY

Pablo Serrano-Retana (''the Respondent") is a native and citizen of Mexico.


[Exhibit ("Exh.") l.] On March 4, 2010, the Department of Homeland Security ("DHS")
served the Respondent with a Notice to Appear ("NTA") charging him with removability
under Immigration and Nationality Act ("INA") section 212(a)(6)(A)(i) for entering the
United States without being admitted or paroled. Id. On March 5, 20 10, DHS served the
Immigration Court with the NTA, commencing proceedings. Id.
On March 8, 2010, the Respondent appeared before an Immigration Judge in
Elizabeth, New Jersey. [Exh. 7 (ID), Tab A, at 8.] Although the Respondent had
obtained counsel, his attorney was not present at the hearing. Id. at 10. The Respondent

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In the Matter of

Appearing before an Immigration Judge in New York, New York, the Respondent
moved to withdraw his pleadings. On April 6, 2011, while the Respondent's motion was
pending, the Immigration Judge recused herself. The matter was reassigned to this Court
and consolidated with the removal proceeding involving Jaime Serrano Rojas (A094-222350). For the reasons that follow, the Court denies the motion to withdraw pleadings.

II.

EXHIBITS
The following documents were entered into evidence and made part of the record:

Exhibit 1:
Exhibit 2:
Exhibit 3:
Exhibit 4:
Exhibit 5:
Exhibit 6:
Exhibit 7 (ID):
Exhibit 8 (ID):

III.

Notice to Appear, served March 4, 2010;


The Respondent's Motion to Change Venue, filed March 22, 2010;
The Respondent's Written Pleadings, dated April 7, 2010;
Immigration Court Order, dated March 23, 2010;
The Respondent's Motion to Change Venue, dated April 8, 2010;
Immigration Court Order, served April 13, 2010;
Evidence in Support of the Respondent's Motion to Withdraw
Pleadings, received December 20, 201O;
Hearing Notice, dated March 8, 2010.

LEGAL STANDARDS AND ANALYSIS

The Respondent moves to withdraw the written pleadings submitted by his


attorney. He argues that he only agreed to admit the allegations and the charges in the
NTA because he believed it would be "futile" to formally deny facts he admitted at the
first hearing. [The Respondent's Motion, at 11.] His attorney claims he only discovered
the Respondent's reason for agreeing to concede removability after he submitted the
pleadings. [Exh. 7, Tab B at 3.]

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explained to the Immigration Judge that he did not know why his attorney was not
present. The Immigration Judge swore in the Respondent and asked him his name,
country of origin, place of birth, and date of birth. The Respondent answered all of these
questions. After the hearing, he moved to change venue. The Immigration Judge denied
the motion because the Respondent had not admitted or denied the allegations in the NTA
and had not requested any relief. [Exh. 4.] After consultation with his attorney through
his family and a volunteer from a local church, the Respondent's attorney submitted
written pleadings admitting the factual allegations and conceding the charges of
removability and again moved to change venue. [Exhs. 3, 5.] The Immigration Judge
granted the motion. [Exh. 6.]

The Board of Immigration Appeals has long held that "[a]bsent egregious
circumstances, a respondent is bound by a distinct and formal admission made . ..by an
attorney acting in a professional capacity." Matter of Velasquez, 19 l&N Dec. 377, 382
(BIA 1986). Thus, "an admission D made as a tactical decision by an attorney acting in
his professional capacity binds his client." I!L.; see also Matter of D-R-, 25 l&N Dec. 445
(BIA 2011); Matter ofGawaran, 20 l&N Dec. 938 (BIA 1995).

Here, the Respondent submitted written pleadings admitting the allegations and
conceding the charges after consultation, albeit through intermediaries, with his attorney.
[Exhs. 3; 7 (ID), Tab A, at 11-12, Tab B, at 2-3.] Any confusion regarding his prior
admissions could have been discussed with his attorney. Moreover, just as in Velasquez,
the Respondent made a strategic choice to admit the allegations and concede the charges
to increase his chances of securing a change of venue. Compare [Exh. 4 (denying the
motion to change venue because the Respondent had not "admitted or denied" the
charges or filed a "[s]tatement of relief requested")] with Velasquez, 19 l&N Dec. at 383
(reasoning that the respondent may have conceded deportability to "heighten the chance
that [DHS] would not oppose a change of venue"). Further, the record is devoid of any
evidence contradicting the pleadings. Hoodho, 558 F.3d at 192. Indeed, the
Respondent's written pleadings indicate that he intended to pursue voluntary departure as
his only form of relief, which requires the Respondent to concede the charge of
removability. 8 C.F.R. 1240.26(b)(l)(i). The Respondent's potential claims for
suppression of evidence or termination of these proceedings based upon regulatory or
Constitutional violations, which would only prevent DHS from submitting evidence of
his alienage, also do not contradict the contents of his written pleadings. [Exh. 7 (ID),
Tab A.] Thus, the circumstances of the Respondent's pleadings were not egregious, and
the Court "is satisfied that no issues oflaw or fact remain." 8 C.F.R. 1240.lO(c).
Accordingly, the Court denies the motion to withdraw pleadings.
The Respondent, through counsel, declined to apply for any relief from removal.
Accordingly, the following orders will be entered:

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An Immigration Judge's acceptance of a concession from counsel that is not


"contradicted by the record evidence" is not "'egregious' in any respect." Hoodho v.
Holder, 558 F.3d 184, 192 (2d Cir. 2009) (assuming, for the sake of argument, that the
standard in Velasquez applies). Moreover, "an [Immigration Judge] does not err by
accepting an alien's concession of removability when that concession is not plainly
contradicted by the record." Id. The Second Circuit's emphasis on whether the pleadings
are contradicted by the record appears to be derived from 8 C.F.R. 1240.lO(c), which
was promulgated after Velasquez and states that the respondent's admission of the
allegations and charges can be sufficient to establish removability as charged ifthe
Immigration Judge "is satisfied that no issues oflaw or fact remain." 8 C.F.R.
1240.lO(c); see also Hoodho, 558 F.3d at 192.

"

ORDERS

IT IS HEREBY ORDERED that the Respondent's motion to withdraw pleadings is


DENIED.

Date

Immigration Judge

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IT IS FURTHER ORDERED that the Respondent be removed to Mexico on the charge


contained in the Notice to Appear.