U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesb11rg Pike, S11ite 2000 Falls C/111rcl1. Virginia 12041

Axford, Heather Yvonne, Esq. Central American Legal Assistance 240 Hooper Street Brooklyn, NY 11211

OHS/ICE Office of Chief Counsel 26 Federal Plaza, 11th Floor New York, NY 10278

NYC

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Name: GARCIA, MARVIN JOSUE

A 097-535-345

Date of this notice: 8/13/2013

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

Dowu_ ct1/lAJ
Donna Carr Chief Clerk

Enclosure
Panel Members: Pauley, Roger Donovan, Teresa L. Wendtland, Linda S.

yungc Userteam: Docket

Cite as: Marvin Josue Garcia, A097 535 345 (BIA Aug. 13, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A097 535 345 - New York, NY

Date:

AUG 1 3 2013

In re: MARVIN JOSUE GARCIA IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Heather Yvonne Axford, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Tanya K. Bronsteen Assistant Chief Counsel

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

APPLICATION: Termination of proceedings

The Department of Homeland Security (the "DHS") timely appeals an Immigration Judge's July 18, 2011, decision granting the respondent's motion to reconsider his June 13, 2011, decision, and granting the respondent's motion to suppress evidence and terminate proceedings. The record will be remanded. Since the Immigration Judge rendered his decisions and the expiration of briefing deadlines imposed in this case, the United States Court of Appeals for the Second Circuit issued Cotzojay
v.

Holder, No. 11-4916-ag, 2013 WL 3927605 (2d Cir. July 31, 2013), and Pretzantin

v.

Holder,

No. 11-2867-ag, 2013 WL 3925787 (2d Cir. July 31, 2013). These cases have direct bearing on the Immigration Judge's July 18, 2011, decision granting the respondent's motion to suppress evidence. Given the Second Circuit's intervening precedent decisions, the record will be remanded for further consideration of the respondent's motion to terminate and suppress evidence. On remand, the parties will be afforded the opportunity to present new evidence and new legal arguments. ORDER: The record is remanded for further proceedings consistent with this order and for the issuance of a new decision.

FOR THE BOARD

Cite as: Marvin Josue Garcia, A097 535 345 (BIA Aug. 13, 2013)

'

G
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BEFORE THE IMMIGRATION COURT NEW YORK, NEW YORK

In the Matter of Marvin Josue Garcia Respondent A 097-535-345 In Removal Proceedings

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On behalf of Respondent: Heather Axford Ann Pillsbury Central American Legal Assistance

On behalf of DHS: Tanya K. Bronsteen Adam v. Loiacano Kenneth Padilla

ORDER OF THE IMMIGRATION JUDGE

On June 13, 2011 the court issued a lengthy oral decision covering all issues litigated relating to respondent's removability, including Mr./ Garcia's motion to suppress the evidence offered by OHS that might show him not to be a citizen of the US. The court explicitly found that OHS committed an egregious violation of Mr. Garcia's Fourth Amendment rights, amounting to a violation ofdue process, when some seven armed and uniformed ICE agents entered his home about 4:40 a.m. without a warrant and without his or the owner's consent, allegedly in search ofanother person, and in that inherently coercive environment demanded proofofhis immigration status. The court ruled that all evidence obtained at that time and during ICE's interrogation of him after transporting him to a locked detention place, was the fruit ofICE's egregious violation. It ruled also that the unrebutted evidence showed a recent and disturbing pattern and practice of such egregious violations by ICE against people in this country, and that it would serve the enforcement of respect for the people in this country if ICE were not permitted to use evidence so obtained to deport people, including Mr. Garcia. (Indeed, the bringing of claims such as this very one may be exactly what caused the number of news articles about such practices to diminish since.) the court also ruled that a pleading made in ambiguous circumstances, where Mr. Garcia, unrepresented, explicitly said he did not understand what was going on when told that he had waived his right to have an attorney represent him (no waiver itself was made on the record), could be withdrawn in the interests ofjustice. Those interests have in fact been served by allowing him to withdraw his plea. It also ruled that a document that OHS claimed to have obtained from a foreign country bearing the same name as Mr. Garcia's was neither sufficient by itself to establish that the card pertained to him or proved he was not a US citizen (the country in question allows dual citizenship, as does the US) nor untainted by DHS's egregious violation of Mr. Garcia's Fourth Amendment rights, before which violation it

had no infonnation about him whatsoever, including his name and whether he was born in the US or not. But the court did not tenninate. Instead, it specifically found that respondenf s written motion to change venue asserted his alienage, and therefor it was incumbent under the statue and case law for respondent to prove the time, place, and manner of his entry, INA Sec. 291, 8 USC Sec. 1361, and ifhe does not the court may find he entered as charged by DHS. Four days later, on June 17, 2011, Mr. Garcia submitted a motion to reconsider, alleging a "significant factual error" in the court's finding that respondent admitted Salvadoran birth or nationality in his motion to change venue. DHS has not responded. I take that to mean non opposition to the motion. I also find the motion should be granted on its merits. The court made an obvious and significant error. Mr. Garcia correctly argues that his motion to change venue does not admit alienage. In it he does admit having been outside the US, but many citizens go outside the US every day, and that does not convert them to aliens or even provide prima facie proof of alienage. He does not say he was not inspected, but only that he was "not stopped" by immigration officials, a reality that probably occurs to most citizens when they come to the US, whether on foot or otherwise. His mother has TPS, a sure sign that she is an alien, and a small piece ofevidence that he may be, but it says nothing about his father and is obviously insufficient to prove his own alienage. Many people with TPS have children who are citizens of the US, especially since TPS has been available for people like his mother from EI Salvador since 1990, over 20 years ago. He also stated that his father was "in Honduras," not even alleging alienage for him. Many US citizens (I myself among them) have been "in Honduras" without being a citizen ofthat countryr At first glance it appeared nonetheless to the court that since Mr. Garcia admitted having ever been outside the US the burden rested on him to prove he is "lawfully present pursuant to a prior admission." INA Sec. 240(c)(2), 8 USC Sec. 1229a(c)(2). But on further consideration it is obvious that that logical sequence runs backwards. The cited provision applies only to an "alien," id. , and even the terms "admission" and "admitted" are defined in the Immigration and Nationality Act only "with respect to an alien." INA Sec. 101(a)(13)(A), 8 USC Sec.
l 10l(a)(13)(C). "The burden of proof in deportation proceedings does not shift to the alien to

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show time, place, and manner of entry under section 291 of the Act, 8 U.S.C. 1361 (1994), until after the respondent's alienage has been established by clear, unequivocal, and convincing evidence. Murphy v. INS, 54 F.3d 605 (9th Cir.1995); see also Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. 242.14(a) (1995). " The proper carthorse order here is that DHS must first prove alienage, then if it does (and only ifit does), Mr. Garcia must prove, under the statue, such information as "aliens" are required to prove. DHS's initial burden is a very high one, by "clear, unequivocal and convincing evidence." Woodby v. INS, supra. Alienage is not simply a point DHS must prove for a deportation. It is also jurisdictional for the court. The court has jurisdiction in removal proceedings only over "aliens": "An

..

immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien." INA Sec. 240(a) ( l ), 8 USC Sec. 1229a(a)(l). Of course "an Immigration Judge has jurisdiction to determine his jurisdiction, " Matter of Bulnes, 25 l&N Dec. 57, 59 (BIA 2009). Here, the court finds DHS has not proved Mr. Garcia's alienage by evidence free of an egregious violation of Mr. Garcia's Fourth Amendment right to protection against arbitrary and unreasonable government intrusion in his home, and that the remaining evidence is not clear, unequivocal and convincing in showing that he is an alien as alleged. Thus, with this finding made, aggregated to the findings already made in the court's oral decision ofJune 13, 2011, and DHS's failure to respond or otherwise seek to address any issue it believes may require the taking offurther evidence, the court will terminate this proceeding on the grounds of the government's f ailure to prove alienage as required by all applicable law. The court has no jurisdiction to carry the case farther. ORDER IT IS ORDERED that this proceeding is here

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Wi

tam

Van Wyke

Immigration Judge July 18, 2011

Appeal due August 17, 2011