461 F.3d 231 (2nd Cir. 2006), 04-5841, Almeida-Amaral v. Gonzales

Docket Nº:04-5841-AG.
Citation:461 F.3d 231
Party Name:Werquely Jeanini ALMEIDA-AMARAL, Petitioner, v. Alberto GONZALES, [*] Attorney General of the United States, Respondent.
Case Date:August 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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461 F.3d 231 (2nd Cir. 2006)

Werquely Jeanini ALMEIDA-AMARAL, Petitioner,


Alberto GONZALES, [*] Attorney General of the United States, Respondent.

No. 04-5841-AG.

United States Court of Appeals, Second Circuit.

Aug. 24, 2006

Argued: May 16, 2006.

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Kai W. De Graaf, New York, N.Y., for Petitioner.

Robert M. Spector, Assistant United States Attorney (William Nardini, Assistant United States Attorney, on the brief) for Kevin J. O'Connor, United States Attorney for the District of Connecticut, New Haven, Conn., for Respondent.

Before: CARDAMONE, CALABRESI, and POOLER, Circuit Judges.

CALABRESI, Circuit Judge.

Petitioner Werquely Jeanini Almeida-Amaral ("Almeida-Amaral" or "petitioner") seeks review of a decision by the Board of Immigration Appeals ("BIA") dismissing his appeal from an Immigration Judge's ("IJ") decision that denied both his motion to suppress evidence for an alleged Fourth Amendment violation and his motion to terminate the removal proceedings against him. For the reasons stated below, we conclude that the BIA's decision was not in error, and we therefore deny Almeida-Amaral's petition.


Late on the night of January 26, 2003, Almeida-Amaral was approached by a uniformed border patrol agent just as he entered, by foot, the parking lot of a gas station adjacent to a restaurant along a highway in southern Texas. The agent instructed petitioner to stop and requested identification from him. In response, petitioner showed the officer his Brazilian passport, at which point he was arrested and taken into custody. At that time, Almeida-Amaral, who was then 17 years old, gave a statement to the arresting officer,

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which became the basis of an I-213 form (Record of Deportable/Inadmissible Alien) maintained by the Immigration and Naturalization Service ("INS"). That form recorded that petitioner was "a citizen and national of Brazil by birth," and was "illegally in the United States." Thereafter, petitioner was served with a Warrant and Notice to Appear before an Immigration Judge ("IJ") in Chicago, Illinois. After being released into the custody of his cousin, who lived in New York, Almeida-Amaral successfully moved for a change of venue from Chicago to New York.

Proceedings before an IJ in New York began on March 26, 2003. At that time, petitioner filed a motion to suppress evidence and terminate the removal proceedings forthwith. The motion sought to exclude the "statement taken [from] the [petitioner] and any and all other evidence procured in violation of the law used to commence these removal proceedings." In support of this motion, Almeida-Amaral made two arguments. First, he contended that his arrest was an illegal seizure under the Fourth Amendment of the Constitution. He also claimed that, because he was an unaccompanied minor when he spoke to the arresting agent in January 2003, his statements were inadmissible under INS regulations. Apart from the I-213 form derived from petitioner's statement, the record before the IJ included a copy of petitioner's Brazilian passport and an affidavit from Almeida-Amaral's mother stating that petitioner was a native and citizen of Brazil. Petitioner did not admit to deportability nor did he assert any asylum-related claims.

On June 18, 2003, the IJ denied petitioner's suppression motion as well as his motion to terminate the proceedings. Finding that Almeida-Amaral's removability had been established by clear and convincing evidence, the IJ ordered petitioner deported.

On appeal to the BIA, petitioner asserted substantially the same arguments he raised before the IJ. On October 5, 2004, the BIA denied petitioner's appeal by per curiam opinion. The BIA found that there was "no evidence that [petitioner] was under arrest when the officer asked to see his identification," and therefore no Fourth Amendment violation. Moreover, the BIA maintained that an ordinary violation of the Fourth Amendment, even if established, would not justify suppression of evidence in a civil deportation hearing. Concluding that there was "nothing unreasonable or egregious about the officer's encounter" with Almeida-Amaral, the BIA affirmed the IJ's denial of petitioner's motion to suppress.

The BIA also found unavailing petitioner's alternate argument that he was an unaccompanied minor when he spoke with the arresting agent. After considering In Re Gomez-Gomez, 23 I. & N. Dec. 522 (BIA 2002), the BIA emphasized (1) that petitioner was 17 years old at the time of his arrest and (2) that his mother had confirmed the relevant facts contained in the I-213 form.

Almeida-Amaral subsequently filed a timely petition to review the BIA's decision. Petitioner argues to us that, because the uniformed agent was wearing a firearm and because he commanded petitioner to "Stop," petitioner was seized without any cause whatsoever in clear violation of his constitutional rights. He also maintains that because he was an unaccompanied minor when he was arrested, his statement is inadmissible.


It is well-settled that we review the factual findings of the BIA for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B);

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Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). It is equally well-settled that, on appeal, issues of law are reviewed de novo. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

The government bears the burden of proving removability by clear and convincing evidence. Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). But, "the INS must show only identity and alienage; the burden then shifts to the respondent to prove the time, place, and manner of his entry." INS v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984).

The question presented by this appeal therefore is whether the government's evidence establishing that Almeida-Amaral is removable should have been excluded.

A. Petitioner's Fourth Amendment Challenge

In Lopez-Mendoza the Supreme Court held that a Fourth Amendment violation does not, by itself, justify suppression of evidence in the course of a civil deportation proceeding: "Important as it is to protect the Fourth Amendment rights of all persons, there is no convincing indication that application of the exclusionary rule in civil deportation proceedings will contribute materially to that end." Lopez-Mendoza, 468 U.S. at 1046, 104 S.Ct. 3479. The Court qualified this ruling in two significant ways. First, it stated that its "conclusions concerning the exclusionary rule's value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread." Id. at 1050, 104 S.Ct. 3479. And, second, it explained that its holding did not necessarily pertain to circumstances involving "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained." Id. at 1050-51, 104 S.Ct. 3479.

Although we have referred to the Supreme Court's decision in Lopez-Mendoza in several published decisions, see, e.g., United States v. Lopez, 445 F.3d 90, 99 (2d Cir.2006); Johnson v. Ashcroft, 378 F.3d 164, 172 n. 10 (2d Cir.2004); Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997), we have not, to date, had an occasion to apply Lopez-Mendoza explicitly. The issue squarely presents itself in this case, and we now apply it as the law of the circuit.

In so doing, we pause to emphasize principles--all significant to the case before us--which clarify when an egregious violation would properly lead to the suppression of evidence in a civil proceeding. At the outset, it should be made clear that Lopez-Mendoza authorizes exclusion for violations that are egregious either because the violation "transgress[ed] notions of fundamental fairness," or because the violation "undermine[d] the probative value of the evidence obtained." Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. 3479. The Court, seemingly inadvertently, used the conjunctive "and" instead of the disjunctive "or" to link these two possible grounds for deeming a violation egregious. As a result, it could be read as saying that proof of both prongs-- i.e., evidence of fundamental unfairness and...

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