17‐996 Zuniga‐Perez v. Sessions BIA Hochul, IJ A 201 218 867/868 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2017 (Argued: May 16, 2018 Decided: July 25, 2018) Docket No. 17‐996 JUAN MARTIN ZUNIGA‐PEREZ AND ELDER HERNANDEZ‐OCAMPO, AKA Fabian Ruia‐Abarca, AKA Jose Hernandez, Petitioners, v. JEFFERSON B. SESSIONS III, United States Attorney General, Respondent. ON PETITION FOR REVIEW FROM THE BOARD OF IMMIGRATION APPEALS Before: POOLER, WESLEY, and CHIN, Circuit Judges. The Clerk of Court is respectfully directed to amend the caption to conform to the above. Petition for review of a decision of the Board of Immigration Appeals affirming the immigration judgeʹs denial ‐‐ without a hearing ‐‐ of petitionersʹ motions to suppress evidence relating to their immigration status obtained by law enforcement agents during a nighttime search of their residence. Petitioners contend that, based on their affidavits submitted to the immigration judge, they were entitled to a suppression hearing. We grant the petition for review and remand this matter to the Board of Immigration Appeals for further proceedings. Petition GRANTED and case REMANDED. ANNE E. DOEBLER, Buffalo, New York, for Petitioners. MICHAEL C. HEYSE, Trial Attorney (Mary Jane Candaux, Assistant Director, on the brief), Office of Immigration Litigation, for Chad A. Readler, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, District of Columbia, for Respondent. ‐2‐ CHIN, Circuit Judge : Petitioners Juan Martin Zuniga‐Perez and Elder Hernandez‐Ocampo seek review of a March 10, 2017, decision of the Board of Immigration Appeals (the ʺBIAʺ) affirming a February 24, 2016, decision of an immigration judge (the ʺIJʺ) denying ‐‐ without a hearing ‐‐ their motion to suppress evidence. In re Zuniga‐Perez, Hernandez‐Ocampo, Nos. A 201 218 867/868 (B.I.A. Mar. 10, 2017), aff’g Nos. A 201 218 867/868 (Immig. Ct. Buffalo Feb. 24, 2016). Petitioners, citizens of Mexico residing in upstate New York, were arrested during a search of their residence by law enforcement officers purportedly looking for a criminal suspect pursuant to a ʺfelony search warrant.ʺ In removal proceedings before the IJ, both petitioners moved to suppress the evidence obtained during the search, arguing that the search violated the Fourth Amendment because it was conducted without a warrant, consent, or exigent circumstances, and, even assuming the existence of a warrant, the search exceeded its scope. Although petitioners submitted affidavits in support of their motion, the IJ denied the motion, without holding a suppression hearing. The question presented is whether the IJ should have held an evidentiary hearing in light of the evidence submitted by petitioners. We hold ‐3‐ that because petitioners made a sufficient showing of an egregious constitutional violation, they were entitled to a suppression hearing. STATEMENT OF THE CASE A. The Search The facts are drawn from the Form I‐213s submitted by the Department of Homeland Security (ʺDHSʺ) to initiate the removal proceedings and petitionersʹ affidavits in support of their motions to suppress.1 At 10:00 pm on September 4, 2011, New York State Police gained entry to petitionersʹ residence in Galen, ...
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