U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 22041

Hess, Theodore G., Esq. Hess & Schubert, LLP 804 Colorado Ave., 2nd Floor Glenwood Springs, CO 81601

OHS/ICE Office of Chief Counsel - DEN 12445 East Caley Avenue Centennial, CO 80111-5663

Immigrant & Refugee Appellate Center | www.irac.net

Name: CHAVARRIA-LOPEZ, MANUEL DE JESUS

A089-823-873

Date of this notice: 12/15/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Greer, Anne J.

Cite as: Manuel De Jesus Chavarria-Lopez, A089 823 873 (BIA Dec. 15, 2011)

U.S.DepartinentofJustice
Executi.ve Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A089 823 873 - Denver, CO

Date:

DEC 1& ZOU

In re: MANUEL DE JESUS CHAVARRIA-LOPEZ IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Theodore G. Hess, Esquire

Nathan L. Herbert Assistant Chief Counsel

CHARGE: 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

APPLICATION:

Tennination

The respondent, a native and citizen of El Salvador, appeals the Immigration Judge's February 22, 2010, ·decision denying the respondent's Motion to Suppress. We review the hnmigration Judge's factual findings for clear error and all other issues de novo. See 8 C.F.R.

§ 1003.1(d)(3).

The case will be remanded.

In INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984), the Supreme Court held that
the exclusionary rule of the Fourth Amendment is generally not considered applicable in removal proceedings.
See also Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979); Matter of Garcia,

17 I&N Dec. 319, 321(BIA1980); Matter o/Toro, 17 I&N Dec. 340, 343 (BIA 1980). Even if the Fourth Amendment's protection against unreasonable searches and seizures is violated, the resulting evidence will be suppressed only when the constitutional violations are "egregious." See
INS v. Lopez-Mendoza, supra.

The guiding principle is whether the consideration of the

evidence transgresses Fifth Amendment notions of fundamental fairness. See Matter o/Sandoval,
supra. Evidence should be suppressed only when the record establishes the existence of "egregious

violations of the Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undennine the probative value of the evidence obtained." See Lopez-Mendoza, supra, at 1050-51.

In the criminal context where, unlike in removal proceedings, the exclusionary rule of the
Fourth Amendment is fully applicable, a search conducted without a warrant issued upon probable cause is "per se unreasonable." See Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).
An exception to this general rule is when a person with authority has given voluntary consent

to the search. See Schneckloth v. Bustamante, supra, at 223.

That exception applies equally

in removal proceedings where we are required to assess whether a search violated the
Cite as: Manuel De Jesus Chavarria-Lopez, A089 823 873 (BIA Dec. 15, 2011)

A089 823 873 Fourth Amendment and whether that violation was "egregious," thereby justifying the exclusion of evidence. See Luevano v. Holder, 660 F.3d 1207, 1212 (10th Cir. 2011).

In removal proceedings, an alien seeking the exclusion of evidence based on the Fourth
Amendment bears the burden of establishing a prima f acie case that evidence should be suppressed.
See Matter of Tang, 13 I&N Dec. 691 (BIA 1971). The request to exclude evidence should be made

via a motion to suppress that is supported by an affidavit or other objective evidence that explains why suppression is appropriate. See Matter of Wong, 13 I&N Dec. 820, 822 (BIA 1971). The affidavit must contain specific, detailed statements based on the personal knowledge of the affiant. See Matter ofTang, supra; Matter ofBarcenas, 19 I&N Dec. 609 (BIA 1988). Only when an alien has come forward with adequate evidence in support of suppression will the burden shift to the Department of Homeland Security (DHS) to justify the manner in which it obtained the evidence. See Matter ofBarcenas, supra, at 611.

Immigrant & Refugee Appellate Center | www.irac.net

In this case, the respondent filed a motion to suppress stating that, after a traffic accident, he was
arr ested by a police officer in Parachute, Colorado, based on an arrest warrant issued in California. After the respondent's arrest, it was determined that the respondent was not the person for whom the warrant was issued. Nonetheless, the respondent was questioned over the phone by an officer of the Immigration and Customs Enforcement (ICE) and the respondent was subsequently taken into ICE custody. See Exh. 2. On appeal, the respondent argues that the Immigration Judge erred by denying the respondent's motion to suppress without a hearing. See Respondent's Brief at 3-4. We agree.

In his decision, the Immigration Judge found that the respondent's arrest was complicated by the
fact that the respondent was arrested on a warrant and it was later determined that the warrant did not pertain to the respondent (I.J. at 2-3). The respondent was nonetheless questioned by immigration officers. Without making factual findings, the Immigration Judge concluded that there was no egregious conduct on behalf of the law enforcement officers in this case, the respondent's motion to suppress was frivolous, and there was no basis for suppressing the respondent's statements (I.J. at 2, 3). Because these conclusions are not supported with adequate factual findings, however, we will remand this case to the Immigration Judge for additional fact-finding. See Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (given the Board's limited fact-finding function, it is "increasingly important for the Immigration Judge to make clear and complete findings of fact that
are

supported by the record and in compliance with controlling law." ). We also note that the respondent argues on appeal that his statements should be suppressed

because he was not informed of his rights under 8 C.F.R.

§

287.3(c) upon his arrest.

See

Respondent's Brief at 4. Despite this argument, however, we have held that an alien who is arrested without a warr ant is not entitled to advisals until he or she is "placed in formal proceedings." See
Matter ofE-R-M-F- & A-S-M-, 25 I&N Dec. 580, 583 (BIA 2011); see also 8 C.F.R. § 287.J(c) ("an alien arrested without warrant and placed informal proceedings under section 238 or 240 of the Act will be advised of the reasons for his or her arrest and the right to be represented at no expense to the Govenunent") (emphasis added). On remand, the Immigration Judge should make the necessary factual findings to determine whether the required advisals were provided. Accordingly, the

following order will be entered.

2

Cite as: Manuel De Jesus Chavarria-Lopez, A089 823 873 (BIA Dec. 15, 2011)

,

-

. ''.A.089 823 873 O RDER: The record is remanded to the Immigration Judge for further proceedings consistent

·

with this opinion and the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

3

Cite as: Manuel De Jesus Chavarria-Lopez, A089 823 873 (BIA Dec. 15, 2011)

•.

\. '
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFF ICE FOR I MM IGRAT ION REVIEW UNITED STATES IMMI GRAT ION COURT Denver, Colorado

File A 089 823 873

February 22,

2010

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

MANUEL CHAVARRIA-LOPEZ, Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a) (6) (A) (i)

of the Act.

APPLICATIONS:

Motion to terminate and suppress on Fourth Amendment grounds.

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECUR I TY: Leila Cronfel, Esquire

Theodore Hess,

Esquire

ORAL DECISION OF THE IMM I GRATION JUDGE The respondent in these proceedings is a male, and citizen of El Salvador. native

The United States Department of

Homeland Security initiated these proceedings by filing the Notice to Appear with this Court on or about the 16th of March, 2009. See Exhibit 1 herein. In that document, the Government

charged the respondent is not a citizen or national of the United States of America, that he is a native of El Salvador and a The Government further charged that the California

citizen of El Salvador.

respondent arrived in the United States at San Ysidro,

(
'

, .

lj on or about the 10th of August, 2004, and found that the

respondent was not then admitted or paroled after being inspected by the Immigration Officer. allegations, Based upon those facts or

the respondent was charged with removability under

Immigrant & Refugee Appellate Center | www.irac.net

Section 212(a) (6) (A) (i)

of the Act for being present in the

United States without having been admitted or paroled or arriving at a time or place other than that designated by the United States Attorney General. The respondent, through counsel,

admitted the facts or allegations,

conceded the charge of

removability and designated El Salvador as the country of removal. There was some confusion with regard to the respondent and counsel with regard to his application for voluntary departure. The respondent, through counsel, filed a motion to The

suppress in this case based on Fourth Amendment grounds. Court,

having examined closely the facts or allegations contained the respondent's motion and the There

in Exhibit 2 and Exhibits 2A, Government response,

finds that this motion is frivolous.

is no basis for suppressing any of the respondent's statements to the Immigration and Customs Enforcement officials. respondent, This

even taking the facts in this case in a

�~
to without a In this case,

the respondent,

the respondent was driving unlawfully, He was stopped,

driver's license.

it was subsequently determined

that he was in this country without authorization. there are some other factors that complicate it. A 089 823 873 2

He was arrested February 22, 20 1 0

(
lj on a warrant,

.�
:


( \,

out of California,

that was not for him,

but for

some other individual.

Nonetheless, However,

statements and other
I

e vidence may be suppressed. to respondent's counsel,

will point out repeatedly there must

in order for that to occur,

Immigrant & Refugee Appellate Center | www.irac.net

be some type of egregious conduct on behalf of law enforcement o fficials. this case. The C ourt, having found that the motion to suppress and has ordered the respondent removed The respondent expresses There is nothing rising anywhere near that level in

terminate should be denied,

from the United States to El Salvador.

no fear of torture or persecution if removed from the United States to El Salvador. The Court originally granted the

respondent the full 120-day pre-conclusion voluntary departure. For the respondent, however, when counsel indicated that the

respondent wished to reserve on what this Court considers a frivolous motion, departure. the Court reconsidered the grant of voluntary

I am denying pre-conclusion and post-conclusion

voluntary departure to this respondent as a matter of discretion. I am ordering the respondent removed from the United States to El Salvador on the charge contained and sustained in the Notice to Appear. ORDER IT IS HEREBY ORDERED, that the respondent be removed

from the United States to El Salvador on the charge contained in the Notice to Appear. A 089 823 873 3 February 22, 2010

lj IT IS FURTHER ORDERED that the respondent applications

for pre-conclusion and post-conclusion voluntary departure be and hereby are q�ed�s a matter of discretion.

Immigrant & Refugee Appellate Center | www.irac.net

Immigration Judge

A 089 823 873

4

February 22,

2010

'

.

( (- ..


CERTIFICATE PAGE

�-

�. \- -

I hereby certify that the attached proceeding

before JOHN W.

DAVIS in the matter of:

MANUEL CHAVARRIA-LOPEZ

Immigrant & Refugee Appellate Center | www.irac.net

A 089 823 873

Denver,

Colorado

was held as herein appears,

and that this is the original

transcript thereof for the file of the Executive Office for

Immigration Review.

t:r� ��e
a Deposition Services, Rockville, Inc. April 17, (Completion

rJ

6245 Executive Boulevard Maryland 20852 (301} 881-3344

2010
Date)

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