U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5/07 Leesburg PikE. Suire 2000
Falls Church, Virginia 22041

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

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

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Name: YANGUA-CALVA, EDINZON FERNANDO

AOSS-190-231

Qate ofthis notice: 11/28/2011

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. Pauley, Roger Wendtland, Linda S.

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

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

Files: A088 190 231 - Hartford, CT A088190234

In re: EDINZON FERNANDO YANGUA-CALVA JOSE EFRAIN SOLANO- Y ANGUA

Date:

NOV 2 82Dll

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENTS: Michael J. Wishnie, Esquire ON BEHALF OF DHS: Leigh Mapplebeck Senior Attorney

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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 (both respondents)

APPLICATION: Reconsideration

The Department of Homeland Security ("the DHS") has filed a timely motion to reconsider the Board's November 26, 2010, 1 decision remanding the above captioned removal proceedings to the Immigration Judge for further proceedings addressing the respondents' motions to suppress. For the reasons that follow, the motion will be denied. A motion to reconsider must state the reasons for reconsideration, be supported by pertinent case precedent 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, for clear error. See United States v. National Ass 'n ofReal Estate Boards, 339 U.S. 485, 495 (1950) (a factual finding is not "clearly erroneous" merely because there are two permissible views of the evidence). 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).

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

A088 190 231 et al.

In the motion, 2 the DHS argues that the Board applied an erroneous standard in adjudicating the
respondents' appeals of the Inunigration Judge's denial of their motions to suppress the I-213 forms that were offered by the DHS to establish alienage in each respondent's proceedings. See DHS Motion at 2-7. Here, the respondents argued below that the evidence in the I-213s that supports the allegations of alienage was obtained through a non-consensual search and a seizure that violated the Fourth Amendment's proscription on unreasonable searches and seizures. In its motion, the DHS argues that the Board improperly shifted to it the burden of proving that the arrest met constitutional requirements, 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 obtained in violation of the U.S. Constitution, the alien bears the burden to establish a prima facie case for suppression). 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 in support 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 with our earlier decision. As an initial matter, we note that in this case, the Immigration Judge's adverse credibility 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 egregious violation of the Fourth Amendment occurred relates to ICE agents' arrest of the respondents after an early-morning entry into a private home, which raises unique and serious considerations (as we stated in our November 2010 order). See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016 (9th Cir. 2008). The respondents' motion to suppress claimed that the entry into the home was nonconsensual, and, therefore, constituted an egregious constitutional violation. See generally Respondents' 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 credibility in his testimony about the agents' entry into the apartment. The crux of the adverse credibility determination was the Immigration Judge's fmding that Yangua's testimony about the agents' entry was "vague and rife with ambiguity" (l.J. at 24). This conclusion was based on the fact that respondent Yangua testified that he "was unable to observe who opened the door when he was walking towards it" despite the fact that Yangua "had a direct and visible sight line to the door" (Id ).

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On April 8, 2011, the parties filed a joint motion to hold this appeal in abeyance for 30 days because of ongoing settlement negotiations in a federal civil rights suit filed by, inter alia, the respondents in this matter. Generally, the Board's mandate to decide cases in a timely manner counsels 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 have already passed, we consider the motion to hold those proceedings in abeyance to be moot. As we stated in the November 26, 2010, order, respondent Jose Efrain Solano Yangua (A088 190 234) ("Solano") was asleep in his bedroom and therefore had little relevant testimony to offer in support of the motion, see Tr. at 112, but respondent Yangua was awake and in the living room adjoining the main entry to the apartment. See November 26, 20 I 0, Order at 4. 2
Cite as: Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)
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A088 190 231 eta!. We 'found that the Immigration Judge committed clear error when he found inconsistencies in Yangua's account ofhow the agents entered his apartment. See November26, 2010, Order at 5. The record reflects that Yangua stated that he did not see "who opened the door," but that he (I) heard knocking, (2) went towards the door to look through the peephole, and (3) saw the door open, and multiple agents enter. Tr. at 90-97. As we previously stated, the fact that Yangua insisted that he did not know "who" opened the door, Tr. at 92, is consistent with him not knowing which agent opened the door; it need not mean that he was inconsistent or confused on the essential fact that he did 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, to his decision to deny the motion to suppress, we found that remand was warranted to address anew the motions to suppress. That is, now that the Immigration Judge's adverse credibility determination has been vacated for clear error, on this record we are left with the unrebutted testimony of one resident that the agents entered a private home in the early morning hours without consent. Our order did not expressly indicate that Yangua's testimony was credible, that the agents entered the home 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 for further fact-finding, which could include a new credibility determination. As we noted, "if the entry was nonconsensual, this fact, in the context of the entire encounter at the apartment, would significantly bear on the .issue of whether an egregious violation of the Fourth Amendment was shown 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 the respondents was proper. DHS's Motion at 4. A central tenet of our decision in that case is that an 1-213 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 testimony of the arresting officer who stated, consistently with the information in the 1-213, that he prepared the form based on answers supplied by an alien he had stopped and questioned near a bus stop. The information in the Form l-213 included the alien's initial claim of United States citizenship and then his admission that he was a native and citizen of Mexico who lacked documents permitting him to be in the United States. Id. at 610. In his attempt to suppress this information, the alien in Barcenas stated only that his admissions were coerced and involuntary, but did not argue that the information was erroneous. Id at 61 O-Il. Because the alien had not produced evidence to back up his claim of coercion, and because he made no claim that the 1-213 contained incorrect information, the motion to suppress was denied. Id. The situation below differs from that in Matter of Barcenas, supra, in several respects. As set forth in detail in our order, the I-213 forms that were submitted in the proceedings for the respondents contained no information describing how the entry was accomplished. See November 26, 2010, Order at 5. In fact, these I-213s indicated that the agents were searching for another person, who may or may not have lived at the respondents' address. Id The respondents each stated in sworn declarations that no consent to enter their home was provided, and that they did not admit their alienage. Furthermore, the evidence of alienage offered by the DHS posed its own problems due to vagueness as to exactly how this evidence was obtained. 3
Cite as: Edinzon Fernando Yangua-Calva, A088 190 231 (BIA Nov. 28, 2011)

Immigrant & Refugee Appellate Center | www.irac.net

A088 .19.0 231 et al. Furthermore, contrary to the DHS's argwnent in its motion, our decision drew no conclusions as to whether the respondents had met their Matter ofBarcenas, supra, burden, but simply found that the 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 was based on the adverse credibility determination as to Yangua, a new credibility determination is now permitted but, if again 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 on the current record together with any additional evidence that the Immigration Judge deems appropriate to take, if he finds Yangua credible and the issue of consent consequently continues to be a key question bearing on the constitutionality of the agents' search and seizure of the respondents. For the foregoing reasons, the following order will be entered. ORDER: The DHS's motion to reconsider is denied.

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