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Vanegas-Ramirez v. Holder

United States Court of Appeals, Second Circuit

September 25, 2014

LUIS ESTUARDO VANEGAS-RAMIREZ, Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent

Argued May 27, 2014

Page 227

[Copyrighted Material Omitted]

Page 228

Luis Estuardo Vanegas-Ramirez petitions for review of a February 4, 2013 decision by the Board of Immigration Appeals substantially affirming the Immigration Judge's decisions denying Vanegas-Ramirez's motion to suppress evidence and terminate removal proceedings, and his application for asylum, withholding of removal, and protection under the Convention Against Torture. Because Vanegas-Ramirez voluntarily conceded his removability in a motion to change venue, the Board of Immigration Appeals did not err in denying the suppression motion, and, because Vanegas-Ramirez's testimony was insufficient to establish a well-founded fear of persecution, the Board of Immigration Appeals also did not err in denying the asylum application. Accordingly, we DENY Vanegas-Ramirez's petition.

BRUNO J. BEMBI, Law Office of Bruno J. Bembi, Hempstead, New York, for Petitioner.

JESSE M. BLESS, Trial Attorney, Office of Immigration Litigation, Civil Division (Stuart F. Delery and David V. Bernal, on the brief), United States Department of Justice, Washington, District of Columbia, for Respondent.

Before: LIVINGSTON, DRONEY, Circuit Judges, CHEN, District Judge.[*]

OPINION

Page 229

CHEN, District Judge:

Petitioner Luis Estuardo Vanegas-Ramirez was arrested and detained for removal from the United States during an early morning raid by federal agents, which uncovered evidence of Vanegas-Ramirez's Guatemalan citizenship. After being transferred from New York, where he had been residing, Vanegas-Ramirez was scheduled to appear for removal proceedings in Texas. Vanegas-Ramirez moved to change the venue of the removal proceedings to New York. In his motion, Vanegas-Ramirez voluntarily conceded his removability from the United States.[1]

Vanegas-Ramirez's venue change motion was granted, and the removal proceedings against him were transferred to New York. During these proceedings, Vanegas-Ramirez (i) moved to suppress all evidence of his removability, including the concessions of removability that he had made in his venue change motion, and to terminate these proceedings, both on the basis that the raid by federal agents violated the Fourth and Fifth Amendments (the " suppression motion" ); and (ii) applied for asylum, withholding of removal, and protection under the Convention Against Torture (" CAT" ) (the " asylum application" ). The Immigration Judge (the " IJ" ) denied both Vanegas-Ramirez's suppression motion and asylum application, and the Board of Immigration Appeals (the " BIA" ) substantially affirmed. Vanegas-Ramirez now petitions us to review the BIA's decision or, more accurately, the agency's decision.[2]

In considering the petition, we revisit an important legal question: if the government initiates proceedings to remove an alien from the United States following an egregious Fourth Amendment violation, do the alien's concessions of removability made during the removal

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proceedings constitute independent, or sufficiently attenuated, evidence of removability that is admissible in these proceedings, or do they constitute inadmissible " fruit" of the illegal search and seizure? In this case, we affirm the principle that where, as here, an alien voluntarily, i.e., not under compulsion of law, concedes facts supporting his removability, such concessions constitute independently admissible removability evidence, notwithstanding the allegedly egregious and illegal search and seizure that led to the initiation of the removal proceedings. See Katris v. INS, 562 F.2d 866, 869 (2d Cir. 1977) (per curiam); Avila-Gallegos v. INS, 525 F.2d 666, 667 (2d Cir. 1975); La Franca v. INS, 413 F.2d 686, 689 (2d Cir. 1969).

For the reasons set forth below, we deny Vanegas-Ramirez's petition to review the agency's decision.

BACKGROUND[3]

I. The Government Raid & Filing of Removal Proceedings

On September 24, 2007, Vanegas-Ramirez was temporarily staying with his relatives at a house in Levittown, New York.[4] According to Vanegas-Ramirez, at approximately 6:00 AM, agents from the Federal Bureau of Investigation and Immigration and Customs Enforcement (" ICE" )[5] raided the house.

Vanegas-Ramirez testified that, upon entering the house,[6] the agents began searching the rooms. During the search, the agents barged through the closed door of Vanegas-Ramirez's room, ordered Vanegas-Ramirez to freeze, and interrogated him for 15 minutes at gunpoint. The agents brought Vanegas-Ramirez out to the living room, where they were questioning other occupants of the house. An ICE agent informed Vanegas-Ramirez that he and two other occupants were being arrested for lack of documentation. Vanegas-Ramirez, at some point, presented and then surrendered to the agents his Guatemalan consular identification card.

The same day, ICE agents arrested Vanegas-Ramirez and transported him to their field office in New York City for processing. At that time, an agent, using a Spanish-language interpreter, read Vanegas-Ramirez his Miranda rights and took his sworn statement, which indicated, among other things, that Vanegas-Ramirez (i) was a " citizen of Guatemala" and (ii) had " entered the United States [in] or about July 2002, near the Phoenix, AZ U.S.-Mexican border" illegally and without inspection. CAR at 219. Vanegas-Ramirez was eventually transported from New York to ICE detention centers in Texas.

On October 18, 2007, DHS filed a notice for Vanegas-Ramirez to appear for removal proceedings before IJ Eleazar Tovar (" IJ Tovar" ) in Texas.[7] In the notice,

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DHS alleged, among other things, that Vanegas-Ramirez was a " citizen of Guatemala" and not the United States, and that he had come to this country " at a time or place other than as designated by the Attorney General." Id. at 333. IJ Tovar thereafter arranged for a Master hearing[8] to be held on December 6, 2007.

On October 30, 2007, however, DHS released Vanegas-Ramirez from detention on a $6,000 bond, whereupon he moved back to his residence in Uniondale, New York.

II. Venue Change Motion

On November 26, 2007, Vanegas-Ramirez moved to change the venue of the removal proceedings from Texas to New York. As part of his motion, Vanegas-Ramirez attached a declaration, in which, among other things, he conceded his removability by acknowledging that he was a " native and citizen of Guatemala" and " not a citizen of the United States," and that he had not been " inspected or paroled by an Immigration Officer at the time that [he] entered the ...


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