BIA Decision: Hernandez-Xoqui Appeal
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Immigrant & Refugee Appellate Center, LLCBIA Decision: Hernandez-Xoqui Appeal
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Immigrant & Refugee Appellate Center, LLCU.S.
Department of Justice
Executive Office for Immigration Review
Board oflmmigration Appeals
Office of the Clerk
5107 leesburg Pike. Suite 2000
Falls Church. Virginia 22041
DHS/ICE Office of Chief Counsel - PHI
900 Market Street, Suite 346
Philadelphia, PA 19107
Name: HERNANDEZ-XOQUI, MIGUEL A ...
A 205-526-157
Date of this notice: 2/26/2016
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Dcwu.. Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Pauley, Roger
Greer, Anne J.
Userteam: Docket
For more unpublished BIA decisions, visit
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Cite as: Miguel A. Hernandez-Xoqui, A205 526 157 (BIA Feb. 26, 2016)
Immigrant & Refugee Appellate Center, LLC | www.irac.net
Greene, Sandra Lynn
GreeneFitzgerald Advocates
2575 Eastern Blvd., Suite 208
York, PA 17402
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U.S. Department of Justice
Eecutive Qffice for Immigration Review
Decision of the Board of Immigration Appeals
- Falls Church, Virginia 22041
File: A205 526 157 - Philadelphia, PA
Date:
FEB 2 6 2016
In re: MIGUEL A. HERNANDEZ-XOOUI
APPEAL
ON BEHALF OF RESPONDENT: Sandra Greene, Esquire
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
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's July
24, 2014, decision denying the respondent's motion to suppress, granting his application for
voluntary departure, and alternatively ordering him removed from the United States to Mexico.
The record will be remanded for further proceedings consistent with this decision.
The respondent filed a motion to suppress evidence and to terminate proceedings with the
Immigration Judge, arguing that the Department of Homeland Security's evidence was obtained
in violation of the Fourth Amendment to the U.S. Constitution and federal regulations. The
respondent's motion was supported by his declaration. The respondent was approached by
Immigration and Customs Enforcement agents just outside his multi-building apartment complex
on or about October 18, 2012.
At the September 10, 2013, removal hearing, the Immigration Judge concluded that the
respondent did not establish a prima facie case for suppression of evidence arising from and
related to his October 18, 2012, arrest (Tr. at 48-49, 52). The Immigration Judge relied on the
contents of the Form 1-213 to find that the respondent is a Mexican national who is present in the
United States without having been admitted or paroled. He found the respondent inadmissible as
charged (Tr. at 49-50, 52). The Immigration Judge granted the respondent's application for
voluntary departure.
The respondent asserts on appeal that the Immigration Judge did not issue a separate decision
adjudicating the respondent's motion to suppress and consequently his decision is insufficient for
administrative review. See Respondent's Brief at 19, 24-25. The respondent is correct. The
Immigration Judge's July 24, 2014, decision incorporates by reference his September 10, 2013,
decision denying the respondent's motion to suppress and terminate (I.J. at 2-3). However, the
September 10, 2013, decision is contained in the hearing transcript, not in a separate decision.
Additionally, at that hearing the Immigration Judge was considering motions to suppress filed by
three different respondents in three different cases (Tr. at 14-48). For example, the discussion
transcribed in pages 39-48 of the transcript does not relate to this respondent.
Cite as: Miguel A. Hernandez-Xoqui, A205 526 157 (BIA Feb. 26, 2016)
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Immigrant & Refugee Appellate Center, LLC | www.irac.net
IN REMOVAL PROCEEDINGS
A205 526 157
The Immigration Judge should address the specific arguments raised in the respondent's
motion to suppress evidence and terminate proceedings, and provide adequate reasons for his
decision. Matter of S-H-, 23 l&N Dec. 462 (BIA 2002) (stating that because the Board's fact
finding ability on appeal is limited, it is important for Immigration Judges to include in their
decisions clear and complete findings of fact that are supported by the record and are in
compliance with controlling law). Accordingly, the following order is entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.
0!1MA. au-1nJ
F R THE BOARD
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2
Cite as: Miguel A. Hernandez-Xoqui, A205 526 157 (BIA Feb. 26, 2016)
Immigrant & Refugee Appellate Center, LLC | www.irac.net
The Immigration Judge's evaluation of the evidence and legal analysis is cursory and
precludes us from meaningfully reviewing the merits of his determination. See Matter of A-P-,
22 l&N Dec. 468 (BIA 1999) (an oral decision must summarize the relevant facts, reflect the
Immigration Judge's analysis of the applicable statutes, regulations, and legal precedents, and
clearly set forth the Immigration Judge's legal conclusion). Accordingly, the record will be
remanded to allow the Immigration Judge to issue a separate decision addressing the
respondent's motion to suppress and terminate.
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
PHILADELPHIA. PENNSYLVANIA
July 24, 2014
File: A205-526-157
In the Matter of
MIGUEL ANGEL HERNANDEZ-XOQUI
RESPONDENT
)
)
)
)
CHARGES:
Violation of INA 212(a)(6)(A)(i)
APPLICATIONS:
Motion to suppress
IN REMOVAL PROCEEDINGS
ON BEHALF OF RESPONDENT: ANDREW MAHON, ESQUIRE
126 EAST CHESTNUT STREET
LANCASTER. PENNSYLVANIA 17602
ON BEHALF OF OHS: KAREN FOX, ESQUIRE
OFFICE OF CHIEF COUNSEL
NIX FEDERAL BUILDING
900 MARKET STREET
SUITE 346
PHILADELPHIA, PENNSYLVANIA 19107
ORAL DECISION OF THE IMMIGRATION JUDGE
Introduction and Jurisdictional Statement
On October 24, 2012 the Department of Homeland Security filed a Notice
to Appear against the above-named respondent. The filing of his charge document
commenced proceedings and vested jurisdiction with this Court. The Notice to Appear
has been admitted into evidence as Exhibit 1.
At a master calendar hearing the respondent denied the charges in the
Notice to Appear including the alienage of the respondent. The Department of
Homeland Security filed an 1-213 in which it established the alienage of respondent as
being from Mexico. In response to that filing the respondent filed a motion to suppress
the Form 1-213 as the fruit of an unconstitutional search in violation of the Supreme
Court's decision in Lopez-Mendoza permitting the suppression of evidence in
Immigration Court where it is egregious or a product of widespread violations.
Government responded opposing the motion to terminate by its filing on August 26,
2013. The respondent submitted additional documentation in support of his claim for
suppression on August 7, 2013 and the Court heard the matter on September 10, 2013.
On September 10, 2013 the Court, after reviewing the documentation
submitted by the parties, concluded that the respondent had not established a prima
facie case for an evidentiary hearing on a motion to suppress pursuant to the Board's
decision in Matter of Barcenas, 19 l&N Dec. 609 (BIA 1988). As a result of the Court's
decision on that date, September 10, 2013, the Court examined the 1-213, determined
that the respondent was of Mexican alienage, thereby establishing his alienage in these
proceedings, and then further concluded that the facts set forth in the 1-213, a
presumptively reliable document, did indeed establish the factual allegations in the
Notice to Appear as well as the charge of removability pursuant to INA 212(a)(6)(A)(i).
As a result the Court found the respondent, a 21-year-old native and citizen of Mexico,
removable from the United States as charged.
A205-526-157
July 24, 2014
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Analysis
The Court continued the matter for the respondent to determine what, if
any, further relief might be available to him.
that he was married to an individual who has been granted status under deferred action
for childhood arrival ("DACA"). The Court has determined that while the respondent
does have a marriage to a person in that status, that that status in no way can provide
the respondent with any further status in this country. As a result the Court is not in a
position to continue the case any longer, nor is the Court in a position to give the
respondent any further opportunity to establish a lawful basis to remain in the country.
Respondent has asked for post-conclusion voluntary departure. The Court will grant
respondent the 60 days post-conclusion voluntary departure, meaning te respondent
must depart the United States by September 22, 2014. The Court in this decision
incorporates by reference in totality the decision it rendered on September 10, 2013
when it denied the motion to suppress for failure to establish a prima facie case under
Matter of Barcenas. As a result the Court will enter the following orders in this matter:
ORDERS
IT IS HEREBY ORDERED that the respondent's motion to suppress
evidence in this case be and hereby is denied.
IT IS HEREBY ORDERED that the respondent be granted voluntary
departure. The Court has determined that respondent is subject to the charges in the
Notice to Appear and the respondent has made application solely for voluntary
departure in lieu of removal.
IT IS HEREBY ORDERED that respondent be granted voluntary departure
at the conclusion of these proceedings under Section 240B(b) of the Act in lieu of
A205-526-157
July 24, 2014
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At a further master calendar hearing the respondent introduced evidence
removal without expense to the Government on or before September 22, 2014 or any
extensions as may be granted by the Field Office Director of the Department of
IT IS FURTHER ORDERED that respondent post a voluntary departure
bond in the amount of $500 with the Department of Homeland Security within five
business days or by July 31, 2014.
IT IS FURTHER ORDERED that respondent provide to the Department of
Homeland Security his passport or other travel documentation to assure sufficient lawful
entry into the country to which the alien has departed within 60 days of this order or
within any time extensions that may be granted by the Department of Homeland
Security.
IT IS FURTHER ORDERED that if any of the above-ordered conditions
are not met as required, or if respondent fails to depart as required, the above grant of
post-conclusion voluntary departure shall be withdrawn without further notice or
proceedings and the following order will be entered pursuant to 8 C.F.R. 1240.26(d) and
shall become effective immediately: Respondent shall be removed to Mexico on the
charges in the Notice to Appear.
Respondent is hereby advised that if he fails to voluntarily depart the
United States within the time specified or within any extensions that may be granted by
the Department of Homeland Security, respondent will be subject to the following
penalties: (1) Respondent will be subject to a civil monetary penalty of not less than
$1,000 nor more than $5 1 000; the Court has set a presumptive civil monetary penalty of
$3 1 000. (2) Respondent will be ineligible for a period of 10 years to receive cancellation
of removal, adjustment of status, registry, voluntary departure, or a change in non
immigrant status.
A205-526-157
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....
July 24, 2014
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Homeland Security and under any other conditions the Field Office Director may direct.
Respondent is further advised that if he appeals this decision to the Board
of Immigration Appeals, within 30 days of filing such an appeal sufficient proof of having
reinstate voluntary departure period in its final order if respondent does not submit
timely proof to the Board that voluntary departure bond has been posted.
Respondent is further advised that if he does not appeal this decision and
instead files a motion to reopen or reconsider during the voluntary departure period, the
period allowed for voluntary departure will not be stayed, tolled or extended. The grant
of voluntary departure will be terminated automatically. The alternate of removal will
take effect immediately and the above penalties for failure to depart voluntarily under
Section 2408( d) of the Act will not apply.
Please see the next page for electronic
signature
A205-526- 157
STEVEN A. MORLEY
Immigration Judge
July 24, 2014
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posted the voluntary departure bond must be filed with the Board. The Board will not
/Isl/
Immigration Judge STEVEN A. MORLEY
A205-526-157
