Wishnie, Michael J.

U.S. Department of Justice

Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Vrginia 20530
Jerome N. Frank Legal Services Org.
P.O. Box 209090
OHS/ICE Ofice of Chief Counsel - HAR
P. 0. Box 230217
Hartford, CT 06123-0217
New Haven, CT 06520-9090
Name: VILLANUEVA-OJANAMA, GABR ... A 201-242-343
Date of this notice: 2/18/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Kendall-Clark, Molly
Sincerely,
DO c
Donna Carr
Chief Clerk
yungc
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Gabriel Villanueva-Ojanama, A201 242 343 (BIA Feb. 18, 2014)
U.b.UcpaHcutof Justicc
Executive Ofce fr Imigration Review
Decision of the Board of Imigation Appeals
Falls Chuch, Virginia 20530
File: A01 242 343 - Haford, CT Date: Lb 18 l\+
In re: GAREL VILLAEV A-OJANAMA a.k.a. Gabriel Velazquez Esquivel
a.k.a. Esquivelgabriel Velazquez
I REMOVAL PROCEEDIGS
MOTION
ON BEHALF OF RESPONDENT: Michael J. Wishie, Esquire
ON BEHALF OF DHS: John P . Marley
Senior Atorey
APPLICATION: Reopening
The respondent's case is befre us on appeal. The respondent and the Department of Homeland
Securit have fled a joint motion to terminate te remova proceedings. We will grant the motion.
ORDER: The joint motion is granted and these proceedings are terminated.
FOR THE BOAR
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Cite as: Gabriel Villanueva-Ojanama, A201 242 343 (BIA Feb. 18, 2014)

UNITED ST A TES DEPARTMENT OF JSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COUT
HARTFORD, CONNECTICUT
IN THE MATTER OF:
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IN REMOVAL PROCEEDINGS
VILLANUEV A-OJANAMA, Gabriel
A 201-242-343
Respondent
CHARGES: 212(a)(6)(A(i) of the Immigration and Nationality Act ("INA" or "the
Act"), as amended, in that you are an alien present in the United States
wthout being admitted or paroled, or who arrived in the United States at
any time or place other than as designated by the Attorey General.
212(a)(7)(A)(i)(I) of the IA, as amended, as an immigrant who, at the
time of application fr admission, is not in possession of a valid unexpired
immigrat visa, reentry perit, border crossing card, or other valid entry
document required by the Act, and a valid unexpired passpor, or other
suitable travel document, or docuent of identity and nationality a
required under the regulations issued by the Atorey General under
section 211 {a) of the Act.
APPLICATIONS: Suppression of Evidence, Motion to Terminate Removal Proceedings
ON BEHALF OF RESPONDENT
Michael Wishnie, Esq.
Jerome Frank Legal Services Organization
Yale Law School
P.O. Box 209090
New Haven, CT 06520
ON BEHALF OF DHS:
Courtney Gates Grayson, Esq.
Ofce of the Chief Counsel
450 Main Street, Room 483
Hartfrd, CT 06103
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
Gabriel Villanueva-Ojanama ("Respondent") is a thirty-seven year-old male native and
citizen of Peru. Notice to Appear ("NT A"). He entered the United States without inspection
and without documentation. Id. He has not fed any application or petition with the U.S.
Citizenship and Immigration Serices C'USCIS") fr any immigration beneft. On May 15,
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2011, he was arrested and charged with illegal possession of a weapon in a motor vehicle,
illegal operation of a motor vehicle under the infuence, motor vehicle ofenses, interfring
with a ofcer/resisting arest, possession of a controlled substance, and criminal
impersonation.
The Wethersfeld Police Deparment notifed the Hartfrd Enfrcement and Removal
Offce of Respondent's arest by issuing an Immigration Alien Query as pat of the Secure
Commuities Progam. The infrmation on the Immigration Alien Query established
alienage ad removability and led to the issuance of a Form I-247 Immigration Detainer on
May 15, 2011. Respondent was interviewed at the Hartfrd Correctional Center on May 20,
2011, and a second Form I-247 detainer was issued. The pupose of the frst detainer was to
infrm the Wethersfeld Police Department that it should maintain custody of Respondent fr
a period of time not longer than 48 hours (excluding weekends ad fderal holidays) so that
ICE to take custody of him. The purpose of the second detainer was to infrm the
Conecticut Department of Correction that it should maintain custody of Respondent fr a
period of time not longer than 48 hours (excluding weekends ad holidays) so that ICE could
take custody of him.
On Thursday, July 7, 2011, Respondent was convicted of illegal operation of a motor
vehicle under the infuence ad sentenced to a term of six months (execution suspended afer
thirty days, with two years of probation). He received credit fr the time he had served pre
trial and was released fom Deparment of Correction custody, but was held pursuat to the
May 20, 2011, immigration detainer. He was taken into Department of Homeland Security
(DHS) custody on Monday, July 11, 2011.
Respondent appeaed pro se at his initial hearing at the Boston Immigration Cout on
September 28, 2011. Respondent was represented at his master calendar heaing on
Noveber 7, 2012, ad at all subsequent heaings. At the November 7, 2012 master calenda
heaing, Respondent submitted written pleadings in which he stated that he invoked his
privilege against self-incrimination a to the fctual allegations in te NT A ad denied all
chages of removability. On April 23, 2013, Respondent fled Amended Written Pleadings
ad conceded all fctual allegations and charges in the NTA.
On November 16, 2012, Respondent's cousel fled a motion fr suppression of evidence
and termination of removal proceedings, and an objection to the entry of a fnal order of
removal, along with supporting documents. A brief in suppor of the motions was fled on
that date, ad a additional brief in suppor of the motion fr terination of removal
proceedings was fled on March 15, 2013.
II. ST AND ARS OF LAW AND LEGAL ANALYSIS
In response to Respondent's motion to terminate removal proceedings ad motion to
suppress evidence, the Court makes the fllowing fndings:
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= _ ___ 4.L . ... . .
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&. ..

.
1. Respondent fled Amended Writen Pleadings on April 23, 2013 conceded all charges
in the NT A. The removal proceedings against him ae not unfunded, because he has
conceded that he was inadmissible at the time of entry. As discussed below, actions
taken by ICE and the Wethersfeld Police Department are collatera to wheter the
respondent is removable ad do not madate that these proceedings be terminated.
2. Any requests that the Cou rule on the constitutionalit of te Act cannot be granted,
as "I is setled that the immigration judge and this Board lack jurisdiction to rle
upon the constitutionalit of the Act and the regulations." Matter of C-, 20 I&N Dec.
529. 532 (BIA 1992) (citations omitted). The Court therefre canot consider
Respondent's asserion that section 287(d), the section of te Act under which
Respondent's detainers were issued, is unconstitutional.
3. The evidence presented thus far does not indicate that the circumstances surrounding
the issuace of Respondent's detainers or his actual detention were such that an
egregious, conscious-shocking, or prejudicial violation te Act occurred. Rajah v.
Mukasey, 544 F. 3d 427 (2d. Cir. 2008).
4. The issuance of Respondent's detainers was not an egregious violation of the 4
th
Amendment. The issuance of Respondent's detaners also did not trasgess the
notions of fndaental faress, nor did it undermine the probative value of the
evidence that was obtaned a a result of teir issuace. There is no piece of evidence
that the Respondent is seeking to suppress. As discussed previously, the Cour does
not have jursdiction to rule on te constitutionality of the detainers statute as a
whole. Furtherore, the legality of the detainer is a collateral issue and it is not the
Immigration Judge's role to deterine whether section 287 of the Act ad 8 CFR 287
were violated.
5. Respondent's request that the Court engage in a proporionalit review pursuant to
Section 240(c)(l)(A) of the Act cannot be granted because there is nothing
ambiguous about Section 240(c)(1)(A). Section 240(c)(1)(A) mandates that the court
"decide whether a alien is removable" at the conclusion of the proceedings. Because
section 240(c)(l)(A) contains a unabiguous statutor mandate, the Cout must
apply it. Matter of Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997). Section
204(c)(l)(A) requires the Cour to rle on Respondent's removability.
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6. Respondent's request that the Cour consider the "punishent" associated with a
removal order in proporion to the "crime" of entering and remaining in the United
States illegally also caot be granted. Section 240(c)(l)(A) requires te Court to
make a decision regarding removability at the conclusion of proceedings and makes
no mention of considering prporionality.
7. Respondent claims that his 10
1h
Amendment rights were violated by way of the
fderal goverent commandeering local law enfrcement to detain him. This claim
is unfunded. While it is tre that ICE (a fderal agency) issued detainers instructing
te Wethersfeld Police Department and the Connecticut Deparment of Corection to
hold Respondent fr a period not to exceed 48 hours (excluding weekends and federal
holidays) and the detainers' language appears to be phrased as a mandate as opposed
to a suggestion, the Cou fnds that the detainers do not rise to the level of
"commandeering local law enfrcement." The detainers make no mention of
sanctions associated with filure to comply with their terms, ad Respondent has
presented no evidence indicating that the Wethersfeld Police Depament and the
Connecticut Department of Corection complied with the detainers unwillingly.
Additionally, as previously discussed, it is not tis Court's role to deterine the
constitutionality of the Act. Matter of C-, 20 I&N Dec. 529. 532 (BIA 1992)
(citations omitted). Since the detainers were issued under 8 C.F.R. Section 287.7(d),
the Court canot make a fnding as to whether their language or their issuace is in
violation of the 10
t
Amendment.
8. In sum, based on the pleadings, the Respondent is subject to removal based on clear
and convincing evidence that he is a alien who is present without having been
admitted or paroled and lacks a valid entr document. As noted above, there is no
basis to terinate these proceedings.
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'
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III. ORER OF THE IMIGRTION JDGE
For all of the fregoing reasons, the fllowing orders shall be entered
IT IS ORDERED that Respondent's motion fr termination of proceedings is DENIED;
Michael W. Straus
United States Immigration Judge
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T.. % . , AJ Ml %W . _ _
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