19-2866 Hernandez Ojeda v. Garland BIA Ruehle, IJ A205 152 906 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 3rd day of May, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 WILLIAM J. NARDINI, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 JOSE CARMELO HERNANDEZ OJEDA, 14 Petitioner, 15 16 v. 19-2866 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jose Perez, Esq., Syracuse, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26 General; Derek C. Julius , 27 Assistant Director; Zoe J. Heller, 28 Senior Litigation Counsel, Office 1 of Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Jose Carmelo Hernandez Ojeda, a native and
9 citizen of Mexico, seeks review of an August 7, 2019 decision
10 of the BIA affirming a February 12, 2018 decision of an
11 Immigration Judge (“IJ”), which denied his motions to
12 suppress evidence of his alienage and to accept his untimely
13 filing of his application for asylum, withholding of removal,
14 and protection under the Convention Against Torture. In re
15 Jose Carmelo Hernandez Ojeda, No. A 205 152 906 (B.I.A. Aug.
16 7, 2019), aff’g No. A 205 152 906 (Immig. Ct. Buffalo Feb. 12,
17 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 Because the BIA affirmed the IJ’s decisions without
20 opinion, we review the IJ’s decisions as the final agency
21 determinations. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
22 (2d Cir. 2008). We review factual findings for substantial
23 evidence and questions of law de novo. See Almeida-Amaral v. 2 1 Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006).
2 I. Motion to Suppress
3 We find no error in the IJ’s denial of Hernandez Ojeda’s
4 motion to suppress. Hernandez Ojeda asserted that the Form
5 I-213 documenting his admission of Mexican citizenship should
6 be suppressed because his statements were obtained following
7 a racially motivated arrest in violation of the Fourth
8 Amendment. Exclusion of evidence is warranted only “if
9 record evidence established either (a) that an egregious
10 violation that was fundamentally unfair had occurred, or (b)
11 that the violation-regardless of its egregiousness or
12 unfairness-undermined the reliability of the evidence in
13 dispute.” Id. at 235. Because Hernandez Ojeda did not argue
14 that the evidence was unreliable, the issue before us is
15 whether there was an egregious violation of his rights under
16 the Fourth Amendment. We find no error in the IJ’s conclusion
17 that Hernandez Ojeda failed to meet his burden of making a
18 prima facie showing of an egregious violation. See Cotzojay
19 v. Holder, 725 F.3d 172, 178 (2d Cir. 2013) (placing initial
20 burden on petitioner to “establish[] a prima facie case”).
21 “[T]he egregiousness of a constitutional violation
3 1 cannot be gauged solely on the basis of the validity . . . of
2 the stop, but must also be based on the characteristics and
3 severity of the offending conduct,” and “even where the
4 seizure is not especially severe, it may nevertheless qualify
5 as an egregious violation if the stop was based on race (or
6 some other grossly improper consideration).” Almeida-
7 Amaral, 461 F.3d at 235. The information in the record about
8 the events of the stop, arrest, and detention is limited.
9 Hernandez Ojeda’s affidavit generally alleges that border
10 patrol agents stopped him and his brother while they were
11 walking down a street in Latham, New York and conversing in
12 Spanish; the agents spoke to them in English, which Hernandez
13 Ojeda and his brother did not understand; then the agents
14 asked them in Spanish for identification papers; more agents
15 arrived; and Hernandez Ojeda and his brother were waiting for
16 approximately one hour and, at some point, were handcuffed
17 and detained for further questioning. But Hernandez Ojeda’s
18 affidavit does not assert that the stop was racially motivated
19 or identify how he responded to the question about
20 identification or what other questions were asked. Nor does
21 he dispute the statement in the I-213 that he was
4 1 “encountered” by agents assisting a DHS investigation at his
2 address “during the execution of a controlled delivery and
3 subsequent search warrant.” CAR 201.
4 His speculation that the stop was racially motivated is
5 not enough to show egregiousness. See Almeida-Amaral, 461
6 F.3d at 236–37. The stop in this case is not distinguishable
7 from the stop at issue in Almeida-Amaral, which involved an
8 officer yelling stop at three individuals walking into a gas
9 station late at night within 35 or 85 miles of the Mexican
10 border and then asking them for identification. Id. at 236.
11 We noted there that, had the officer not yelled stop, “asking
12 petitioner for identification would probably not have been a
13 seizure at all.” Id. at 237. The circumstances described
14 in Hernandez Ojeda’s affidavit—a stop asking for
15 identification—are not alone sufficiently severe to be deemed
16 egregious. See id. (rejecting suppression claim where the
17 applicant “offer[ed] nothing other than his own intuition to
18 show that race played a part in the arresting agent’s
19 decision”).
20 II. Motion to Accept Untimely Filing
21 We find no abuse of discretion in the IJ’s decision
5 1 declining to accept Hernandez Ojeda’s untimely application
2 for relief from removal. See Dedji v. Mukasey, 525 F.3d 187,
3 191–92 (2d Cir. 2008) (reviewing IJ’s decision to set and
4 enforce deadlines for abuse of discretion). An abuse of
5 discretion occurs when the IJ’s decision “rests on an error
6 of law . . . a clearly erroneous fact finding or . . . cannot
7 be located within the range of permissible decisions.”
8 Morgan v. Gonzales, 445 F.3d 549, 551–52 (2d Cir. 2006)
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19-2866 Hernandez Ojeda v. Garland BIA Ruehle, IJ A205 152 906 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals 2 for the Second Circuit, held at the Thurgood Marshall 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 3rd day of May, two thousand twenty-two. 5 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 WILLIAM J. NARDINI, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ 12 13 JOSE CARMELO HERNANDEZ OJEDA, 14 Petitioner, 15 16 v. 19-2866 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ 22 23 FOR PETITIONER: Jose Perez, Esq., Syracuse, NY. 24 25 FOR RESPONDENT: Joseph H. Hunt, Assistant Attorney 26 General; Derek C. Julius , 27 Assistant Director; Zoe J. Heller, 28 Senior Litigation Counsel, Office 1 of Immigration Litigation, United 2 States Department of Justice, 3 Washington, DC.
4 UPON DUE CONSIDERATION of this petition for review of a
5 Board of Immigration Appeals (“BIA”) decision, it is hereby
6 ORDERED, ADJUDGED, AND DECREED that the petition for review
7 is DENIED.
8 Petitioner Jose Carmelo Hernandez Ojeda, a native and
9 citizen of Mexico, seeks review of an August 7, 2019 decision
10 of the BIA affirming a February 12, 2018 decision of an
11 Immigration Judge (“IJ”), which denied his motions to
12 suppress evidence of his alienage and to accept his untimely
13 filing of his application for asylum, withholding of removal,
14 and protection under the Convention Against Torture. In re
15 Jose Carmelo Hernandez Ojeda, No. A 205 152 906 (B.I.A. Aug.
16 7, 2019), aff’g No. A 205 152 906 (Immig. Ct. Buffalo Feb. 12,
17 2018). We assume the parties’ familiarity with the
18 underlying facts and procedural history.
19 Because the BIA affirmed the IJ’s decisions without
20 opinion, we review the IJ’s decisions as the final agency
21 determinations. See Shunfu Li v. Mukasey, 529 F.3d 141, 146
22 (2d Cir. 2008). We review factual findings for substantial
23 evidence and questions of law de novo. See Almeida-Amaral v. 2 1 Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006).
2 I. Motion to Suppress
3 We find no error in the IJ’s denial of Hernandez Ojeda’s
4 motion to suppress. Hernandez Ojeda asserted that the Form
5 I-213 documenting his admission of Mexican citizenship should
6 be suppressed because his statements were obtained following
7 a racially motivated arrest in violation of the Fourth
8 Amendment. Exclusion of evidence is warranted only “if
9 record evidence established either (a) that an egregious
10 violation that was fundamentally unfair had occurred, or (b)
11 that the violation-regardless of its egregiousness or
12 unfairness-undermined the reliability of the evidence in
13 dispute.” Id. at 235. Because Hernandez Ojeda did not argue
14 that the evidence was unreliable, the issue before us is
15 whether there was an egregious violation of his rights under
16 the Fourth Amendment. We find no error in the IJ’s conclusion
17 that Hernandez Ojeda failed to meet his burden of making a
18 prima facie showing of an egregious violation. See Cotzojay
19 v. Holder, 725 F.3d 172, 178 (2d Cir. 2013) (placing initial
20 burden on petitioner to “establish[] a prima facie case”).
21 “[T]he egregiousness of a constitutional violation
3 1 cannot be gauged solely on the basis of the validity . . . of
2 the stop, but must also be based on the characteristics and
3 severity of the offending conduct,” and “even where the
4 seizure is not especially severe, it may nevertheless qualify
5 as an egregious violation if the stop was based on race (or
6 some other grossly improper consideration).” Almeida-
7 Amaral, 461 F.3d at 235. The information in the record about
8 the events of the stop, arrest, and detention is limited.
9 Hernandez Ojeda’s affidavit generally alleges that border
10 patrol agents stopped him and his brother while they were
11 walking down a street in Latham, New York and conversing in
12 Spanish; the agents spoke to them in English, which Hernandez
13 Ojeda and his brother did not understand; then the agents
14 asked them in Spanish for identification papers; more agents
15 arrived; and Hernandez Ojeda and his brother were waiting for
16 approximately one hour and, at some point, were handcuffed
17 and detained for further questioning. But Hernandez Ojeda’s
18 affidavit does not assert that the stop was racially motivated
19 or identify how he responded to the question about
20 identification or what other questions were asked. Nor does
21 he dispute the statement in the I-213 that he was
4 1 “encountered” by agents assisting a DHS investigation at his
2 address “during the execution of a controlled delivery and
3 subsequent search warrant.” CAR 201.
4 His speculation that the stop was racially motivated is
5 not enough to show egregiousness. See Almeida-Amaral, 461
6 F.3d at 236–37. The stop in this case is not distinguishable
7 from the stop at issue in Almeida-Amaral, which involved an
8 officer yelling stop at three individuals walking into a gas
9 station late at night within 35 or 85 miles of the Mexican
10 border and then asking them for identification. Id. at 236.
11 We noted there that, had the officer not yelled stop, “asking
12 petitioner for identification would probably not have been a
13 seizure at all.” Id. at 237. The circumstances described
14 in Hernandez Ojeda’s affidavit—a stop asking for
15 identification—are not alone sufficiently severe to be deemed
16 egregious. See id. (rejecting suppression claim where the
17 applicant “offer[ed] nothing other than his own intuition to
18 show that race played a part in the arresting agent’s
19 decision”).
20 II. Motion to Accept Untimely Filing
21 We find no abuse of discretion in the IJ’s decision
5 1 declining to accept Hernandez Ojeda’s untimely application
2 for relief from removal. See Dedji v. Mukasey, 525 F.3d 187,
3 191–92 (2d Cir. 2008) (reviewing IJ’s decision to set and
4 enforce deadlines for abuse of discretion). An abuse of
5 discretion occurs when the IJ’s decision “rests on an error
6 of law . . . a clearly erroneous fact finding or . . . cannot
7 be located within the range of permissible decisions.”
8 Morgan v. Gonzales, 445 F.3d 549, 551–52 (2d Cir. 2006)
9 (quotation marks omitted) (noting that “IJs are accorded wide
10 latitude in calendar management, and we will not micromanage
11 their scheduling decisions”).
12 There was no error of fact or law here. “The [IJ] may
13 set and extend time limits for the filing of applications and
14 related documents and responses” and “[i]f an application or
15 document is not filed within the time set by the [IJ], the
16 opportunity to file that application or document shall be
17 deemed waived.” 8 C.F.R. § 1003.31(h). The IJ set a
18 September 2017 deadline for the application, and counsel
19 agreed to that date. But the application was not filed until
20 the day of the hearing, five months later. The IJ’s denial
21 of counsel’s oral motion at the February 2018 hearing to
6 1 accept the late filing was not an abuse of discretion because
2 it was not based on legal or factual error. See Morgan, 445
3 F.3d at 551–52. While the IJ had the discretion to grant an
4 extension of the filing deadline, the Immigration Court
5 Practice manual provides that such motions “should be filed
6 as early as possible, and must be received by the original
7 filing deadline.” Immig. Ct. Practice Manual, Chapter
8 3.1(c)(iv)(B). 1 Moreover, Hernandez Ojeda’s counsel conceded
9 that the filing was untimely and explained that he had
10 believed that a former associate had filed the application.
11 Although counsel alleged that he had tried to ascertain
12 whether the application had been filed, he did not identify
13 what steps he took, when he learned of the problem, or why a
14 motion was not filed prior to the merits hearing. On this
15 record and given the IJ’s authority to set and enforce
16 deadlines, Hernandez Ojeda has not shown that the IJ abused
17 his discretion in finding that there was not good cause to
18 extend the deadline. See Dedji, 525 F.3d at 191.
19 For the foregoing reasons, the petition for review is
1 The practice manual in effect at the time of the IJ’s decision is available at: https://www.justice.gov/sites/default/files/pages/attachments/2017/11/02/prac ticemanual.pdf. 7 1 DENIED. All pending motions and applications are DENIED and
2 stays VACATED.
3 FOR THE COURT: 4 Catherine O’Hagan Wolfe, 5 Clerk of Court 6