Gregorio CRUZ-RAMOS, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent, 687 F. App'x 79

SUMMARY ORDER Petitioner Gregorio Cruz-Ramos, an alleged native and citizen of Mexico, seeks review of a December 18, 2015 decision of the BIA affirming a February 28, 2011 decision of an Immigration Judge (“IJ”), which ordered him removed after denying without a hearing his motion to suppress the evidence of his alienage derived from a vehicle stop by a Border Patrol agent. In re Gregorio Cruz-Ramos, No. [ AXXX XXX XXX ] (B.I.A. Dec. 18, 2015), aff'g No. [ AXXX XXX XXX ] (Immig. Ct. Buffalo Feb. 28, 2011).

We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented. We have reviewed the decisions of both the IJ and BIA “for the sake of completeness.” Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir. 2006). The applicable standards of review are well established: “[w]e review the agency’s factual findings for substantial evidence and questions of law de novo.” Cotzojay v. Holder, 725 F.3d 172, 177 n.5 (2d Cir. 2013) (citation omitted); see also 8 U.S.C. § 1252(b)(4)(B).

In removal proceedings, suppression on constitutional grounds is warranted only if “record evidence established] ... that an egregious [Fourth Amendment] violation that was fundamentally unfair ... occurred.” Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006).

A constitutional violation may be found egregious “if an individual is subjected to a seizure for no reason at all .., [and] the seizure is sufficiently severe,” Id. “[E]ven where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the stop was based on race (or some other grossly improper consideration).” Id. Such egregious violations are by nature “rare.” Maldonado v. Holder, 763 F.3d 155, 165 (2d Cir. 2014).

We have approved the BIA’s burden-shifting framework for adjudicating suppression motions: “if the petitioner offers an affidavit that ‘could support a basis for excluding the evidence in ... question,’ it must then be supported by testimony. If the petitioner establishes a prima facie case, the burden of proof shifts to the Government to show why the evidence in question should be admitted.” Cotzojay, 725 F.3d at 178 (quoting Matter of Barcenas, 19 I. & N. Dec. 609, 611 (B.I.A. 1988)).

Stated another way, an affidavit and testimony are both necessary elements of a petitioner’s prima facie showing; however, the petitioner’s affidavit must be sufficiently compelling for him to be allowed to offer supporting testimony at a suppression hearing. See Matter of Barcenas, 19 I. & N. Dec. at 611-12. The agency did not err by denying Cruz-Ramos’s motion without a hearing.

Roving Border Patrol agents may stop vehicles “if they are aware of specific artic-ulable facts, together with rational inferences from these facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.” United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The Form 1-213 prepared by the Border Patrol agent—which contains the admissions as to alienage that Cruz-Ramos sought to suppress—recounts that:

(1) Cruz-Ramos accelerated through a red light when the Border Patrol vehicle first approached;

(2) Cruz-Ramos nearly caused an accident because he was monitoring the Border Patrol vehicle in his rear-view mirror; and (3) the passengers in Cruz-Ramos’s car were ducking down and watching the Border Patrol vehicle. In support of his motion to suppress that document, Cruz-Ramos submitted an affidavit averring that he was driving within the speed limit, that he did not believe that he had broken any traffic laws, and that he believed that the Border Patrol agent pulled him over because he and his three passengers are Hispanic.

It was the burden of Cruz-Ramos to establish by affidavit facts showing the sort of “rare” and “severe” conduct that would be “egregious.” Even taken as true, the affidavit of Cruz-Ramos is insufficient. Putting aside the fact that the affidavit does not actually state that he was in fact obeying the traffic laws, it disregards the stated justifications for the stop. The denial of a motion for a suppression hearing should not rest on the agency’s acceptance as true of the report sought to be suppressed.

But Cruz-Ramos does not contest the account of the Border Patrol; nor does he adduce severe and rare circumstances that might otherwise show that the stop was a product of egregious misconduct. The affidavit expresses a belief that Cruz-Ramos was in compliance with traffic laws (which is not much to the point considering that the Border Patrol does not enforce the traffic laws) and it specifies that he and his passengers are Hispanic. That perfunctory recitation is not enough to sustain Cruz-Ramos’s burden to show that, at a hearing, he could demonstrate rare and severe misconduct amounting to the egregious.

We have considered Cruz-Ramos’s remaining arguments and conclude that they are without merit. Accordingly, the petition for review is DENIED. . Cruz-Ramos's effort to obtain a suppression hearing based on allegedly egregious regulatory violations fails for identical reasons,