Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)

7/29/2019 Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)

1/5

Wishnie, Michael J.Jerome N. Frank Legal Services Org.P.O. Box 209090New Haven, CT 06520-9090

U.S. Department of JusticeExecutive Office for Immigration ReviewBoardofImmigration AppealsOffice of he Clerk5/07 Leesburg PikE. Suire 2000Falls Church, Virginia 22041

DHSnCE Office of Chief Counsel - HARP. 0. Box 230217Hartford, CT 06123-0217

Name: YANGUA-CALVA, EDINZON FERNANDO AOSS-190-231

Qate ofthis notice: 11/28/2011Enclosed is a copy of the Board's decision and order in the above-referenced case.

Enclosure

Panel Members:Greer, Anne J.Pauley, RogerWendtland, Linda S.

Sincerely,

Donna CarrChiefClerk

Cite as: Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)


2/5

U.S. Department of JusticeExecutive Office for Immigration ReviewFalls Church, Virginia 22041

Files: A088 190 231 - Hartford, CTA088190234In re: EDINZON FERNANDO YANGUA-CALVAJOSE EFRAIN SOLANO-YANGUAIN REMOVAL PROCEEDINGSAPPEAL

Decision of he Board oflmmigration Appeals

Date:NOV 2 82Dll

ON BEHALF OF RESPONDENTS: Michael J. Wishnie, EsquireON BEHALF OF DHS:

CHARGE:

Leigh MapplebeckSenior Attorney

Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)]Present without being admitted or paroled (both respondents)APPLICATION: Reconsideration

The Department ofHomeland Security ("the DHS") has filed a timely motion to reconsider theBoard's November 26, 2010,1 decision remanding the above captioned removal proceedings to theImmigration Judge for further proceedings addressing the respondents' motions to suppress. For thereasons that follow, the motion will be denied.A motion to reconsider must state the reasons for reconsideration, be supportedby pertinent caseprecedent and cite a legal or factual defect in the most recent decision. See 8 C.F.R. 1003.2(b)(I).We review an Immigration Judge's factual determinations, including credibility determinations, forclear error. See United States v. National Ass 'n ofReal Estate Boards, 339 U.S. 485, 495 (1950) (afactual finding is not "clearly erroneous" merely because there are two permissible views of theevidence). The Board reviews de novo questions of law, discretion, judgment, and all other issues

in appeals from decisions of Immigration Judges. Matter ofA-S-B-, 24 l&N Dec. 493 (BIA 2008).

1 In issuing our decision, we consolidated the respondents' appeals because the cases presentedsimilar issues, given that the two respondents were residents of the same apartment at 45 BarnesAve. in New Haven, CT and were arrested by agents of the DHS's Immigration and CustomsEnforcement ("ICE") branch on the same day. Since the motion was filed by DHS via a consolidatedcaption and because the respondents have consolidated their response to the motion in a commonbrief, we will continue to treat these cases as consolidated for purposes ofappeal and this motion.Cite as: Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)


3/5

A088 190 231 et al.

In the motion,2 the DHS argues that the Board applied an erroneous standard in adjudicating therespondents' appeals of he Inunigration Judge's denial of heir motions to suppress the I 213 formsthat were offered by the DHS to establish alienage in each respondent's proceedings. See DHSMotion at 2-7. Here, the respondents argued below that the evidence in the I-213s that supports theallegations ofalienage was obtained through a non-consensual search and a seizure that violated theFourth Amendment's proscription on unreasonable searches and seizures. In its motion, the DHSargues that the Board improperly shifted to it the burden of proving that the arrest met constitutionalrequirements, in violation of our precedent decision in Matter of Barcenas, 19 I&N Dec. 609(BIA 1988) (holding that where an alien moves to suppress evidence of alienage allegedly obtainedin violation of the U.S. Constitution, the alien bears the burden to establish a prima facie case forsuppression). Specifically, the DHS argues that "the Board seeks to remedy the respondents'evidentiary failures by suggesting that the Department explain what occurred at the apartment insupport of the respondents' claim." See DHS Motion at 5.

Because the DHS's motion is based on a misreading of our November 26, 2010, decision, we.will deny it, and return the records to the Immigration Court for further proceedings, consistent withour earlier decision. As an initial matter, we note that in this case, the Immigration Judge's adversecredibility determination as to the testimony ofEdinzon Fernando Yangua Calva (A088 190 231)("Yangua") is of significant importance.3 That is because the question whether an egregiousviolation of the Fourth Amendment occurred relates to ICE agents' arrest of the respondents afteran early-morning entry into a private home, which raises unique and serious considerations (as westated in our November 2010 order). See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9thCir. 2008). The respondents' motion to suppress claimed that the entry into the home was nonconsensual, and, therefore, constituted an egregious constitutional violation. See generallyRespondents' Motions to Suppress at 8-9, Respondents' Briefs (on appeal) at 59-65.

The Immigration Judge denied the motions to suppress, finding that Yangua lacked credibilityin his testimony about the agents' entry into the apartment. The crux of the adverse credibilitydetermination was the Immigration Judge's fmding that Yangua's testimony about the agents' entrywas "vague and rife with ambiguity" (l.J. at 24). This conclusion was based on the fact thatrespondent Yangua testified that he "was unable to observe who opened the door when he waswalking towards it" despite the fact that Yangua "had a direct and visible sight line to the door" (Id ).

2 On April 8, 2011, the parties filed a joint motion to hold this appeal in abeyance for 30 daysbecause of ongoing settlement negotiations in a federal civil rights suit filed by, inter alia, therespondents in this matter. Generally, the Board's mandate to decide cases in a timely mannercounsels against granting motions to hold cases in abeyance, except in rare circumstances. 8 C.F.R. 1003.1(e)(8)(iii). In this case, because the 30 days requested by the parties in their motion havealready passed, we consider the motion to hold those proceedings in abeyance to be moot.3 As we stated in the November 26, 2010, order, respondent Jose Efrain Solano Yangua (A088 190234) ("Solano") was asleep in his bedroom and therefore had little relevant testimony to offer insupport of the motion, see Tr. at 112, but respondent Yangua was awake and in the living roomadjoining the main entry to the apartment. See November 26, 20 I 0, Order at 4.

2Cite as: Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)


4/5

A088 190 231 eta!.We 'found that the Immigration Judge committed clear error when he found inconsistencies inYangua's account ofhow the agents entered his apartment. See November26, 2010, Orderat 5. Therecord reflects that Yangua stated that he did not see "who opened the door," but that he (I ) heardknocking, (2) went towards the door to look through the peephole, and (3) saw the door open, andmultiple agents enter. Tr. at 90-97. As we previously stated, the fact that Yangua insisted that hedid not know "who" opened the door, Tr. at 92, is consistent with him not knowing which agentopened the door; it need not mean that he was inconsistent or confused on the essential fact that hedid not open the door or give consent for the agents to enter. See November 26,2010, Order at 5.Since the Immigration Judge's adverse credibility determination was key, if not dispositive, tohis decision to deny the motion to suppress, we found that remand was warranted to address anewthe motions to suppress. That is, now that the Immigration Judge's adverse credibility determinationhas been vacated for clear error, on this record we are left with the unrebutted testimony of oneresident that the agents entered a private home in the early morning hours without consent. Ourorder did not expressly indicate that Yangua's testimony was credible, that the agents entered thehome without consent or a warrant, or that the search and/or seizure was egregious. It merely found

the adverse credibility determination clearly erroneous and untenable, and remanded the record forfurther fact-finding, which could include a new credibility determination. As we noted, "if he entrywas nonconsensual, this fact, in the context of the entire encounter at the apartment, wouldsignificantly bear on the .issue of whether an egregious violation of the Fourth Amendment wasshown here." See November 26,2010, Order(citing Lopez-Rodriguez v. Mukasey, supra).We therefore disagree that in our prior order, we violated Matter of Barcenas, supra, and"impermissibly shifted the burden to the Department" to show that the search and seizure of therespondents was proper. DHS's Motion at 4. A central tenet ofour decision in that case is that an1-213 is "inherently trustworthy and admissible as evidence to prove alienage" unless there is an"indication that a Form 1-213 contains information that is incorrect or was obtained by coercion or

duress." Matter ofBarcenas, supra, at 611. In that case, the govermnent produced the testimonyof the arresting officer who stated, consistently with the information in the 1-213, that he preparedthe form based on answers supplied by an alien he had stopped and questioned near a bus stop. Theinformation in the Form l-213 included the alien's initial claimofUnited States citizenship and thenhis admission that he was a native and citizen of Mexico who lacked documents permitting him tobe in the United States. Id. at 610. In his attempt to suppress this information, the alien in Barcenasstated only that his admissions were coerced and involuntary, but did not argue that the informationwas erroneous. Id at 61 O-Il. Because the alien had not produced evidence to back up his claim ofcoercion, and because he made no claim that the 1-213 contained incorrect information, the motionto suppress was denied. Id.The situation below differs from that in Matter ofBarcenas, supra, in several respects. As setforth in detail in our order, the I-213 forms that were submitted in the proceedings for therespondents contained no information describing how the entry was accomplished. See November26, 2010, Order at 5. In fact, these I-213s indicated that the agents were searching for anotherperson, who may or may not have lived at the respondents' address. Id The respondents each statedin sworn declarations that no consent to enter their home was provided, and that they did not admittheir alienage. Furthermore, the evidence of alienage offered by the DHS posed its own problemsdue to vagueness as to exactly how this evidence was obtained.

3Cite as: Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)


5/5

A088 .19.0 231 et al.

Furthermore, contrary to the DHS's argwnent in its motion, our decision drew no conclusionsas to whether the respondents had met theirMatter ofBarcenas, supra, burden, but simply found thatthe Immigration Judge's decision denying suppression was based on clearly erroneous fact-finding.Specifically, to the extent that the Immigration Judge's decision to deny the motion to suppress wasbased on the adverse credibility determination as to Yangua, a new credibility determination is nowpermitted but, ifagain adverse, must be based on any actual significant inconsistencies in the record.Then, as appropriate, further fact-fmding will be required on the issue of the agents' entry, based onthe current record together with any additional evidence that the Immigration Judge deemsappropriate to take, ifhe finds Y angua credible and the issue of consent consequently continues tobe a key question bearing on the constitutionality of the agents' search and seizure of therespondents.

For the foregoing reasons, the following order will be entered.ORDER: The DHS's motion to reconsider is denied.

4

Cite as: Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)

Documents

Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)