Sweeney, Maureen A.

, Esquire
University of Marland Immigration Clinic
500 W. Baltimore Street, Suite 360
Baltimore, MD 2 201
Name: SANCHEZ, JAIRO FERINO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 20530
OHS/ICE Ofice of Chief Counsel - BAL
31 Hopkins Plaza, Room 1600
Baltimore, MD 21201
A 094-216-521
Date of this notice: 7/11/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Do c t
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Jairo Ferino Sanchez, A094 216 521 (BIA July 11, 2014)
. l
U.S.'Deparment of Justice
Executive Ofce fr Imigation Review
Decision of the Boad of I igation Appeals
Falls Church, Viginia 20530
File: A094 216 521 - Baltimore, MD
In re: JAIRO FERNO SANCHEZ
IN RMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Maureen A. Sweeney, Esquire
CHARGE:
jUL 1 ! 2014
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Motion to suppress
The respondent, a native and citizen of Mexico, has appealed the Immigration Judge's
Febray 21, 2013, decision denying his motion to suppress ad terminate proceedings, ad
ordering h removed to Mexico. The Immigation Judge granted the respondent the privilege
of voluntay depare under section 240B(b) of the Immigration and Nationality Act, 8 U.S.C.
1229c(b). The record will be remanded.
Te Board reviews a Immigation Judge's fndings of fct, including fndings as to the
credibility of testimony, under the "clealy erroneous" stadad. 8 C.F.R. 1003.l(d)(3)(i); see
Turkon v. Holder, 667 F.3d 523 (4th Cir. 2012). The Board reviews questions oflaw, discretion,
and judgment ad all other issues in appeals fom decisions of Immigation Judges de novo.
8 C.F.R 1003. l
(d)(3)(ii).
We conclude that the record is not adequate fr appellate review, as the decision does not
flly address certain apects of te respondent's claims. See Mater of Barcenas, 19 I&N
Dec. 609 (BIA 1988). For instace, the respondent submitted a motion to suppress and
terminate proceedings to te Immigation Judge arguing that all evidence derived fom or a a
result of the Malad Transportaton Autorit's ulawl seacad seizue of him on May 29,
2008 (including evidence obtained by the DHS in the wae of the unlawfl seizue) should be
suppressed because this unlawfl seach and seizure wa egregious and violated notions of
fndaenta firess (Exh. 3). Cf IS v. Lopez-Mendoza, 468 U.S. 1032 (1984); see also
Matter of Garcia, 17 I&N Dec. 319 (BI 1980) (respondent made prima fcie showing that
admissions involuntaily given), and Matter of Toro, 17 I&N Dec. 340 (BIA 1980) (holding
maner of acquiring evidence so egregious to rely on it would ofend ffh aendment
fdamental firess requirements); cf Matter of Sandoval, 17 I&N Dec. 70 (BIA 1979). The
Immigation Judge observed that there was conficting evidence wt respect to whether the
initial trafc stop of the respondent was in violation of Maland law or the Maryland
Trasportation Authority's Directives Manual (I.J. at 7-9). The Immigation Judge declined to
assess the validity of the taffc stop by the Maryland Trasportation Authority because te
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Cite as: Jairo Ferino Sanchez, A094 216 521 (BIA July 11, 2014)
A094 216 521
Immgration Judge concluded that tis stop was urelated to the 1-213 obtained fom the
subsequent immigation authorities' questioning of the respondent (which the Immigation Judge
deterined was acquired in a maner consistent with the curent statutes and regulations ad not
in violation of the respondent's rights) (l.J. at 12-13, 15; Exh. 2A). See Matter of E-R-M-F- and
A-S-M-, 25 I&N Dec. 580 (BIA 2011); see also Matter of Cervantes-Torres, 21 l&N Dec. 351
(BIA 1996). However, the subsequent immigration questioning fows directly fom the
respondent's initia stop and arest. Therefre, the validity of the trafc stop by the Maylad
Transportation Authority must be assessed. See United States v. Oscar-Torres, 507 F.3d 224
(4th Cir. 2007); see also United States v. Navarro Dia, 420 F.3d 581 (6t Cir. 2005); see also
Lopez-Chavez v. Ashcrof, 383 F.3d 650 (7th Cir. 2004); see also United States v. Gman-Bruno,
27 F.3d 420 (9th Cir. 1994).
Given te Board's limited fct-fnding fnction, we will remand this case to the Imigation
Judge to make the necessary fctal fndings in the frst instance. See Matter of Exilus, 18 I&N
Dec. 276, 278 (BIA 1982); see also Matter of S-H-, 23 I&N Dec. 462, 465 (BIA 2002)
(remanding to the I igration Judge noting the lack of fctal fndings and legal aalysis); see
also Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (noting that "[t]he Board is an
appellate body whose fnction is to review, not create, a record"); 8 C.F.R. 1003.l(d)(3)(iv)
(limiting the Boad's fct-fnding authority and stating the Board may remad the proceeding to
the Immigration Judge where fher fct-fnding is needed).
Accordingly, te fllowing order will be entered.
ORDER: The record is remanded to the Immigration Judge fr fer proceedings
consistent wit this order.
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Cite as: Jairo Ferino Sanchez, A094 216 521 (BIA July 11, 2014)
l
UNI TED STATES DEPARTMENT OF JUSTI CE
EXECUTIVE OFFICE FOR IMMIGRATION REVI EW
UNITED STATES IMMIGRATI ON COURT
BALTIMORE, MARYLAND
File: A094-216-521
February 21, 2013
In the Matter of
JAIRO FERINO SANCHEZ
RESPONDENT
)
)
)
)
IN REMOVAL PROCEEDINGS
(MOTION TO SUPPRESS)
CHARGES: Immigration and Nationality Act, Section 212(a)(6)(A)(i), as one who
is present in the United States without having been admited or
paroled, who arrived in this country at any time or place other than
as designated by the Attorney General.
APPLICATIONS: Motion to suppress; voluntary deparure.
ON BEHALF OF RESPONDENT: MARTA HERNANDEZ ARAUJO
ON BEHALF OF OHS: JENNI FER E. PIATESKI
ORL DECISION OF THE IMMIGRTION JUDGE
The respondent is Jairo Ferino Sanchez. He has been placed in removal
proceedings by the lodging of a Notice to Appear, dated May 22, 2009. The Notice to
Appear is a par of this record as Exhibit 1. It indicates that the respondent is not a
citizen or national of the United States but a native and citizen of Mexico [Exhibit 1].
The Notice to Appear indicates the respondent arrived in the United States at or near an
unknown location, on or about an unknown date, and that he was not then admitted or
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Cite as: Jairo Ferino Sanchez, A094 216 521 (BIA July 11, 2014)
paroled afer inspection by an Immigration Oficer [Exhibit 1]. It is alleged, as well, in
the Notice to Appear that the respondent is removable from the United States under
Section 212(a)(6)(A)(i), as one who is an alien present in the United States without
being admited or paroled, or who arrived in the United States at any time or place other
than as designed by the Attorney General [Exhibit 1].
The respondent appeared befre the Immigration Cour through counsel
and denied al! egations one through four contained in the charging document, and
denied that the respondent is removable as charged. The respondent alleges that he
was subjected to an egregious violation of his Fourh Amendment rights and, therefre,
has filed a motion to suppress any evidence offered in these proceedings by the
Deparment of Homeland Security.
The Cour notes that it is the burden of the Deparment of Homeland
Security to establish the respondent's removability by evidence that is clear and
convincing evidence, as is set forh at INA Section 240(c). See also, Woodby v. INS,
385 U.S. 276 (1966). In an efor to establish the respondent's removability, the
Deparment of Homeland Security has ofered documents at Exhibit 2A through D. As
noted, however, the respondent opposes the admission of said documentation on the
grounds that his Fifh Amendment due process rights have been violated based on the
Deparment of Homeland Security's egregious violation of the Fourh Amendment
search and seizure provisions of the United States Constitution.
The respondent has submitted a motion to suppress and terminate
proceedings, which is a par of this record as Exhibit 3. In said motion, the respondent
moves the Cour to suppress and exclude all evidence, physical and testimony obtained
or derived from, through, or as a result of "Maryland Transportation Authority's unlawful
search and seizure of the respondent on May 29, 2009 (including evidence obtained by
A094-216-521 2 February 21, 2013
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OHS in the wake of the unlawul seizure) because this unlawul search and seizure was
egregious and violated notions of fundamental fairness." The respondent cites INS v.
Lopez-Mendoza, 468 U.S. 1032 (1984). Respondent through counsel argues that the
Maryland Transporation Authority's ofcers' actions constituted egregious violation of
the Fourh Amendment because the ofcer "lacked and knew, or should have known
they lacked any authority to detain the respondent under state and federal law" and that
as a result all evidence ofered by OHS should be suppressed as the "fruit of the
poisonous tree." The respondent through counsel has submitted a memorandum of law
in suppor of the respondent's motion to suppress, which has been given full weight and
consideration by the Court. This Cour notes that lawyers argument, in and of itself, is
insuficient to establish a prima facie case of eligibility fr suppression, and that the
analysis of whether or not a motion to suppress should be granted is fact-driven
analysis based on facts ofered arising from the circumstances that led to the alleged
unlawful search and seizure. In that significant regard, respondent has submited a
statement from himself, as well as other individuals who were present with him at the
time of the arrest on May 22, 2009 [see Exhibits 3A through 30]. Additionally, the
respondent and other witnesses have testified before this Cour.
In addition to his writen statement, the respondent has described how on
May 22, 2009, he was traveling on Dundalk Avenue and afer a friend that received a
call, the call informed respondent the friend had been arrested and needed a ride.
Respondent was in a vehicle operated by one Mr. Badillo, who had been pulled over by
the police on Broening Highway, in Baltimore. In the written statement, the respondent
describes how he had been traveling with his friend, Juventino Davila, and his brother,
Seltik Sanchez, in Baltimore, when Juventino received a phone call, and that afer they
hung the phone up Juventino told Seltik that their friend, Alberto Badillo, had been
A094-216-521 3 February 21, 2013
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arested by the police, and that the police needed the owner of the car that Badillo was
driving to come to pick the vehicle up. Respondent repors that he told Juventino that
he would go with him, so that he would be able to drive the other car, but befre they
) got iRto the place where Mr. Badillo had been stopped, they had changed places in the
vehicle so that the respondent would be driving the car. The respondent repors that
once they arrived at the place where the police had stopped Badillo, they parked about
30 feet in front of Badillo, at which time they saw to police cars parked behind Badillo,
and they saw to police oficers standing nearby. They described the police ofcers'
uniforms and were under the impression that the oficers were "state troopers.11 At that
time, the oficers were talking to Mr. Badillo. Meanwhile, the respondent waited inside
the car while the engine was running, at which time one of the oficer came over to the
passenger side of the car and, according to the respondent, "put his hands on the
passenger side door." Additionally, Mr. Sanchez repors that the first thing the ofcer
said was "whether we were illegal or legal. " He described that the oficer gave a
condescending smile when they queried as to why the oficer was asking them about
their status, but that the oficer continued to ask them about their Immigration status.
Mr. Sanchez describes how, in the course of the exchange, the oficer's voice got louder
and louder, and that the oficer seemed to be "getting very impatient." He describes
being "scared and nervous11 to the point that he felt "pressured and intimidated" by the
oficer and that he finally answered the police oficer's questions. Later, the respondent
was told to turn of the engine of the car and to turn his keys over to the oficer, a
command to which the respondent complied. The oficer later asked fr identification
and later had the respondent and the others to exit from the vehicles one by one. The
oficer also asked fr ID's from the individuals. The respondent testified befre the
Cour that "no trafic violations were issued." Later the respondent and others were
A094-216-521 4 February 21, 2013
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1
,
,
taken to the police station where their handcufs were removed and the respondent and
his friends were placed in a cell. The respondent has testified before this Cour and has
indicated in his writen statement that at no time were they ever told why they had been
arrested. The respondent testifed that he was never infrmed of any rights to silence,
the right to an atorey, or that anything said could be used against him in cour while in
the custody of the police oficers.
According to the respondent's testimony, a police oficer later came and
asked if the respondent and the others wanted to "wait for Immigration" or if they
wanted to be taken to the Immigration Officer. The respondent states that he and his
friends said that they wanted to wait fr Immigration Oficers to show up. The oficer
later returned and told the respondent and the others that he would have to take them to
the Immigration Oficer. Additionally, a Spanish-speaking oficer told the respondent
and the others that if the Immigration and Customs Enforcement did not come, that they
would be released back at the place where they had been originally picked up.
However, the respondent was transpored to the Immigration and Customs Serice.
The police handcufs were removed and Immigration and Customs Enforcement oficers
placed handcufs on the respondent and his friends. Respondent and his friends had
been at the police station for about an hour and a half, up to three hours prior to being
turned over to the authorities at ICE.
According to the respondent's testimony, personnel at ICE were a litle
upset when the respondent and his friends arrived. They had indeed shut down all the
computers in preparation for a long weekend, according to the respondent, and the
respondent and his friends were questioned one by one. The respondent states that he
had "done nothing wrong. " Additionally, he has testified before this Cour that he was
never told that he had a right to counsel, that he was handcufed and sent to a detention
A094-216-521 5 February 21, 2013
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center in Pennsylvania, and that he had also been transpored as far away as Texas,
where he was held "six to seven days" [see Exhibit 3C].
On crss-examination, the respondent was queried as to whether or not
he had a valid Maryland driver's license, to which he indicated that he did and that he
had it for "about two years" prior to the date of the arrest. He was also queried about
what documentation he used in order to obtain the drivers license, and the respondent
invoked his Fifh Amendment and due process rights. Additionally, when asked about a
Mexican passpor, the respondent invoked the Fifh Amendment to the United States
Constitution. He testified to having completed high school as his grade level.
Additionally, he testified on cross-examination that he was bor in Januar of 1981.
When asked where he was bor, the respondent indicated that he would not answer
that question on the grounds that it might sere to incriminate him, again invoking the
Fifh Amendment of the United States Constitution. The same was the respondent's
response when asked by the Deparment of Homeland Security what he told the police
oficers when he was asked where he is from. The respondent states that he answered
the police oficers questions because the oficer was angry and because he and his
friends did not know what the oficer would do if they did not answer the questions put to
them. The respondent invoked the Fifh Amendment to the United States Constitution
when he was asked where he was born and/or where his parents were bor.
In addition to the respondent's testimony, the Cour has heard testimony
fom Oficer Peter Acker, who has provided background of his serice with the Maryland
Transporation Authority. He indicated he had been a police oficer with the Maryland
Transporation Authority fr some 14 years and that he had made a little over some
1,000 stops in the course of the year preceding his testimony. He testified, as well, that
he had training in making arrests in constitutional law at the police academy and that he
A094-216-521 6 February 21, 2013
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had also undergone occasional refresher over the period of time. He testifed, as well,
that he knows the prcess for making arrests and the arrest process under Maryland
law, and he described that process before the Cour. Additionally, he described the
process of "detainer" in which other police and authorities assist the Deparment of
Homeland Security as "outside agency. " He recounted having reviewed the incident
repor regarding the May 22, 2009, arrest of the respondent and his friends, and
described the step by step assessment of that report. He described that the ofcers did
indeed approach the Acura, which had been driven by the respondent and his friends,
and that the oficer indeed tapped on the window, and that the window was eventually
opened, and he states that he asked about individuals' Immigration status therein. He
described the conduct of other oficers on the scene, as well, and spoke of how an
Oficer Rivera was there to translate to the respondent and his friends, and told that
they (the police) would contact I CE and that if I CE did not come, the respondent and his
friends would be returned to the site where they had been detained. He describes the
respondent and his friends having been seated on the ground next to one another at the
time of their arrest. On crss-examination, he indicated that there were no Miranda
warings given because no Miranda warnings are given to people "who are not under
arrest. 11 He stated that Mr. Sanchez was never asked about his Immigration status.
When queried about whether or not he spoke to the respondent or any of his friends in
an intimidating manner, he conceded that he spoke with an authoritative tone, but that
speaking with an authoritative tone is consistent with the circumstances.
The Cour has heard testimony from Major Stanfrd O'Neill Franklin in
these proceedings, as well. Major Franklin is the executive director of Law Enforcement
Against Prohibition. He testified befre the cour, he testified that he was par of the
Maryland State Police from September of 1976 until December of 1999. He had trained
A094-216-521 7 February 21, 2013
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and superised oficers as state troopers, and he was first class beteen two to three
years, from 1991 to 1984. He states he was promoted to corporal superising some
five tropers, and that he has trained nearly 11100 state troopers. 11 Additionally, it was his
testimony that he cerainly has been trained on how to conduct arrests under Maryland
law, as relates to the Fourh Amendment and the Fifh Amendment of the United States
Constitution regarding search and seizure, and probable cause, and that he had over 46
hours of training over a period of one week on the issue of "reasonable suspicion and
probable cause. u It was his opinion that 11there should never have been detention of
those (respondent and his friends) "in the second car because there was no reasonable
suspicion that a crime had been commited or was being commited. 11 He concluded
that Oficer Acker's arrest of the respondent was based solely on Oficer Acker's
assessment of the respondent's Immigration status, where clearly here there was no
violation of Maryland law or suspicion of violation of Maryland law. He concluded that
the Maryland police oficers should clearly know and understand that they do not have
authority to enforce federal I mmigration law. He noted, as well, that these individuals
should know that there "must be a warrant of ofcial detainer frm a federal agency for
Maryland police authorities to make an arrest under federal enfrcement law. 11 Upon his
review of the record, he concludes that there was no such warrant on Mr. Sanchez. He
states, as well, that Oficer Acker should have known that his actions were illegal by
virue of his training. On cross-examination, he concede that he has no knowledge of
I NA Section 287(g), joint operations. He states that he had no knowledge of that
provision of the law at the time of the respondent's and his friends' arrests.
The Department of Homeland Security called as its witness Sherif
Michael Lewis. Sherif Michael Lewis has testified that he believes that Oficer Acker's
conduct was correct as to both stopped vehicles. It was his opinion that Maryland
A094-216-521 8 February 21, 201
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po\ice of\cers are empowered to hold individuals until federal authorities take
possession of the paries stopped. He opined that the Maryland Transporation
Authority Directives Manual was "not violated." He testified, as well, that he continues
to engage in trafic stops and that he currently atends Fourh Amendment updates, and
speaks at Deparment of Homeland Security security functions and he remains a
cerified instructor to date.
Throughout these proceedings I have had an opporunity to obsere the
respondent's demeanor, as well as the demeanor of all witnesses called in these
proceedings. The Cour has also had an opporunity to review the writen submissions
in this record, even if not specifcally referenced in this decision. The Cour has, as well,
had an opporunity to consider the written closings by each side. The respondent
asserting, again, that all evidence ofered by the Department of Homeland Security
should be precluded from the evidence for reasons set forth in the motion to suppress,
as well as the Deparment of Homeland Security's written submission in which it asserts
that "the respondent's contention that Maryland Transportation Authority police officers
violated their Fifth Amendment rights to due prcess is without merit. Testimony was
given at the hearing by Oficer Acker, who stated his valid, legitimate reasons for
stopping the initial vehicle, as well as his additional questioning of the passengers in the
second vehicle" and assers, as well, that "there is no evidence in the record to reach
the conclusion that the respondent's constitutional rghts were violated by the initial
trafic stop and questioning."
An Immigration Judge may receive into evidence any oral or written
statement that is material and relevant to any issue in the case, and that has been
previously made by the respondent or by any other person during an investigation,
examination, hearing or trial. See 8 C. F. R. 1240.7(a). The Cour is not bound by the
A094-216-521 9 Februar 21, 2013
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rigid federal rules of evidence and evidentiary deteninations are limited only by due
process considerations. See Anim v. Mukasey, 535 F.3d 243 (4t Cir. 2008}. As a
general proposition, evidence is admissible if it is probative and fundamentally fair. See
Mater of Vasguez, 19 l&N Dec. 377 (BI A 1996).
A motion to suppress must be made in writing and be accompanied by a
detailed afidavit that explains the reasons why the evidence in question should be
suppressed. See Matter of Wong, 13 l&N Dec. 820 (BIA 1971 ). In the instant case the
respondent has indeed made his motion to suppress in writing and has submited
detailed afidavits in suppor thereof. The pary seeking to suppress evidence initially
bears the burden of prof and must establish a prima facie case of illegality. See Matter
of Tang, 13 l&N Dec. 691 (BI A 1971 ). In order to establish a prima facie case of
eligibility for a motion to suppress, the pary must provide specific detailed statements
based upon personal knowledge. Any allegations cannot be general, conclusory, or
based solely on counsel's statements. See, for example, Mater of Barcenas, 19 l&N
Dec. 609 (BI A 1988). Only when the respondent comes forard with prof establishing
a prima facie case for suppression will the Deparment of Homeland Security be called
upon to assume the burden of justifing the manner in which it obtained the evidence.
See Barcenas, supra.
In the instant case, the respondent has testified credibly in terms of what
happened on that traffic stop on May 22, 2009. He has described the circumstances
that led to him being on the scene to assist friends in moving a vehicle from the site
afer having received a phone call that there was a friend in need. This Cour is
persuaded, based on the testimony of the respondent and of the oficers that have
testified in these proceedings, that the respondent and his friends were treated prety
much in the manner as the respondent has described before the Court, in that they
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were queried about who they are, where they are from, and asked to produce
identification. However, I am not persuaded on this record that the respondent was so
intimidated and frightened that he gave up information regarding his Immigration status
to authorities out of that fear and intimidation. I am not persuaded on this record that
the respondent or his friends were pressured or compelled into giving information to the
police authorities. However, it is clear that the oficer placed the respondent and his
friends in detention and held them for a significant period time prior to turning them over
to Immigration and Customs Enfrcement oficers.
The exclusionary rule provides that evidence in a criminal proceeding
obtained as a result of unlawful, warrantless arrests is suppressible if the link between
the evidence and the unlawful action is not too attenuated. See, for example, Wong
Sun v. United States, 371 U.S. 471 (1963). And any statements obtained as a result of
custodial interrogation where a defendant has not been given his or her Miranda
warnings cannot typically be used in a criminal trial. See Miranda v. Arizona, 384 U.S.
436 (1966).
As a general rule thga "exclusionary rule" does not apply in civil
deporation proceedings. See, for example, INS v. Lopez-Mendoza, 468 U.S. 1032
(1984); see also, Mater of Sandoval, 17 l&N Dec. 70 (BIA 1979). The United States
Supreme Cour, however, appears to have lef open the question of the issue of
suppression of evidence that might be warranted based on egregious violations of the
Fourh Amendment or other liberties that might transgress notions of fundamental
fairness, and where such documentary evidence would undermine the probative value
of evidence ofered in the civil deporation and/or removal proceedings. It may,
neverheless, be subject to suppression. See I NS v. Lopez-Mendoza, 468 U.S. 1051
(1984}. The Board of Immigration Appeals has held that cases may arise where the
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manner of acquisition of the evidence is so egregious that to rely on the evidence would
violate the due process clause of the Fifh Amendment, and where the evidence should
therefore be excluded. See Matter of Tor, 17 l&N Dec. 340 {BIA 1980). However, the
burden is on the respondent to establish a prima facie case before the Deparment of
Homeland Security will be called upon to assume the burden of justifying the manner in
which it obtained the evidence. See Matter of Burgos, 15 l&N Dec. 278 (BIA 1975);
Matter of Wong, 13 l&N Dec. 820 {BI A 1971 ). If an affidavit is submited such that the
facts alleged, if true, could suppor a basis fr excluding the evidence in question, then
the claims must also be supported by testimony. Mater of Barcenas, 19 l&N Dec. 609
(BIA 1988). In the instant case, as noted by the Court, the respondent has presented a
writen statement and has testified in these proceedings.
Even where state or local law enfrcement has obtained evidence in
violation of the Fourth Amendment, that evidence will not generally be excluded from
federal civil proceedings. See U.S. v. Janis, 428 U.S. 433 (1976). Federal oficials will
not be held responsible for evidence obtained through an unlawful search or seizure if
they did not have a hand in it, or even if the state oficials who conducted the search
then tum over the evidence to federal oficials. See Lustig v. United States, 338 U.S. 74
(1949).
INA Section 287(g) provides for a procedure where joint operations take
place, and the section makes it clear what the duties and responsibilities are of ofcers
engaged in joint operations pursuant to INA Section 287(g). In the instant case,
however, there was no joint operation between the Maryland Transporation Authority
and the I mmigration and Customs Enfrcement. The facts are not in dispute as to how
the respondent and his friends were encountered by authorities of the Maryland
Transporation Authority. The facts are not in dispute either as to the manner in which
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the respondent and his friends were thereafer turned over to the Immigration and
Customs Enfrcement. In the instant case, in light of the fact that there was not a joint
operation between the Maryland Transporation Authority and the Immigration and
Customs Enforcement, this Cour is without authority to assess the conduct of the
Maryland Transporation Authority oficers. Even if this Cour were to characterize that
conduct as violative of the respondent's fundamental rights, the Court is not peruaded
on this record that there was such action between the MTA and ICE that this Court can
impose a penalty in this frm, suppression in the instant case. It appears that the
Maryland Transporation Authorities, after having queried the respondent and his
friends, held them for a period of time and determined that the respondents should be
turned over to I mmigration and Customs Enforcement. They were not prompted to do
so by Immigration and Customs Enforcement, they chose sua sponte to turn the
respondents over upon their belief that the respondent and his friends were in the
United States in violation of the law. While the Court is not pleased with the manner in
which that was handled, this Cour is not in any position to take action as to the conduct
of the Maryland Transporation Authorities acting on authority outside of any authorty
vested by the Immigration and Nationality Act for or thrugh a joint operation with
I mmigration and Customs Enforcement. The Cour, however, may fcus on the manner
in which the respondent and his friends were treated by Immigration and Customs
Enforcement once the respondent and the others were tured over to ICE. It appears
that once the respondent and others were turned over to I CE, ICE ofcers prepared
I mmigration documents based on their discussion with the respondent and his friends.
In the course of that interiew, I mmigration and Customs Enfrcement prepared an
1-213, Record of Deporable Alien [Exhibit 2A]. They also acquired the document
referred to as "respondent's Mexican driver's license." They acquired a Mexican
A094-216-521 13 February 21, 2013
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passpor in the respondent's name and a document referred to as "respondent's primar
education cerificate from Mexico" [Exhibits 3A through D].
In a decision, Matter of E-R-M-F- and A-S-M-, the Board of Immigration
Appeals decided on August 11, 2011, that until an alien who is arrested without a
warrant is placed in formal proceedings by the filing of a Notice to Appear, the
regulations at 8 C. F. R. 287.3(c) regarding the presentation of rights to the respondent
does not require the Immigration Officers to advise the alien that he or she has a right to
counsel, that any statements made during interrogation can subsequently be used
against the alien. See Mater of E-R-M-F- and A-S-M-, 25 l&N Dec. 589 (BIA 2011 ).
In the instant case, the documentar evidence ofered by the Deparment
of Homeland Security was acquired from the respondents in the course of custodial
examination of the respondents afer they had been turned over by the Maryland
Transportation Authority police officers. The 1-213, ofered at Exhibit 2A, refers to one
Jairo Ferino Sanchez, which is the same name set frth in the Notice to Appear. The
infrmation in the 1-213 also contains the same alien number contained in the Notice to
Appear. The 1-213 contains information which would establish, if admissible, that the
respondent is not frm the United States but is from Mexico. The Deparment of
Homeland Security indicates, as well, that it has a copy of the respondent's Mexican
passpor "submited to NVA by respondent. 11 I would find in the instant case that the
1-213, Record of Deporable Alien, is fully admissible in these proceedings and that it
was acquired from the respondent in the course of a custodial investigation into the
respondent's status. As to exhibits B, C, and D ofered at Group Exhibit 2, the Cour will
find that those documents are not admissible, not because of the manner in which they
were acquired, but because of their lack of probative value in the fundamental issue
before the Cour as to the respondent's alienage and time, place, and manner of entr
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into the United States.
In sum, I will find on this record that the respondent has not been
subjected to egregious Fourh Amendment violations to such an extent that his
information given to ICE should be suppressed due to the Fifth Amendment of the
Constitution of the United States, as its use being fundamentally unfair. Quite the
contrary, the information was acquired in a manner consistent with current statute and
regulations, and is fully admissible. The Court will, therefore, deny the respondent's
motion to suppress.
As noted by the Cour, the 1-213 ofered in these proceedings refer to the
party named in the Notice to Appear. The alien number in the 1-213 is the same alien
number on the Notice to Appear. The 1-213, therefore, refers to the pary named in the
NT A. Inforation contained in the 1-213 establish that the respondent is from Mexico.
The Court will find, therefore, that the respondent is not a United States citizen, as is set
forth in the Notice to Appear. Therefore, allegation one and two have been established
by evidence that is clear and convincing. Information in the 1-213 establish that the
respondent entered the United States at or near an unknown location thrugh Arizona
on or about February 2000, without inspection. Therefre, the Cour will find that
allegations three and four in the Notice to Appear have been sustained. The Cour will
find that the respondent's removability under INA Section 212(a)(6)(A)(i), as one who is
present in the United States without having been admitted or paroled, or who arrived in
the United States at any time or place other than as designated by the Attorey
General, have been sustained by evidence that is clear and convincing, as required
under Section 240(c) of the Immigration and Nationality Act. See also, Woodby v. INS,
385 U.S. 276 (1966) [decided in the context of deportation proceedings].
The respondent has made a request for the privilege of voluntary
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deparure. He has testified that he has suficient funds to pay fr his deparure from the
United States, and that he has the appropriate travel document, and that he has not
been convicted of any crminal ofenses that would make him statutorily ineligible for
voluntary deparure. The Cour will fnd, therefre, that the respondent is eligible fr
voluntary deparure and the Cour will grant that limited frm of relief in the exercise of
discretion fr a period of 45 days, thrugh April 8, 2013, with an alternate order of
removal from the United States to Mexico.
ORDER
IT IS ORDERED that respondent's motion to suppress be and the same is
hereby denied;
IT IS FURTHER ORDERED that respondent's request fr voluntary
deparure be granted through April 8, 2012, provided that respondent posts a voluntary
deparure bond in the amount of $500 within five business days of today's date, with an
alternate order of removal from the United States to Mexico.
signature
A094-216-521
Please see the next page for electrnic
PHILLIP T. WILLIAMS
I mmigration Judge
16 February 21, 2013
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I C
/Isl/
Imigration Judge PHILLIP T. WILLIAMS
williaph on May 8, 2013 at 8:41 PM GMT
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