18-2107 Millan-Hernandez v. Barr In the United States Court of Appeals For the Second Circuit ______________ August Term, 2019 (Argued: January 6, 2020 Decided: July 13, 2020) Docket No. 18-2107 ______________ MARIA CARED MILLAN-HERNANDEZ, Petitioner, –v.– WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. ______________ B e f o r e: KEARSE, CARNEY, and BIANCO, Circuit Judges. ______________ Maria Cared Millan-Hernandez petitions for review of a 2018 Board of Immigration Appeals decision dismissing her appeal of an Immigration Judge’s denial, without an evidentiary hearing, of her motion to suppress evidence. On appeal, we consider whether Millan-Hernandez provided sufficient evidence of an egregious Fourth Amendment violation to warrant an evidentiary hearing. We conclude that she did and that the agency applied an incorrect standard in determining otherwise. Accordingly, the petition for review is GRANTED and the cause REMANDED for further proceedings consistent with this Opinion. GRANTED AND REMANDED. ______________ AADHITHI PADMANABHAN, The Legal Aid Society, New York, NY (Nicholas J. Phillips, Joseph Moravec, Prisoners’ Legal Services of New York, Buffalo, NY, on the brief), for Petitioner. COLETTE J. WINSTON, Trial Attorney (Joseph H. Hunt, Assistant Attorney General; Jeffery R. Leist, Senior Litigation Counsel, on the brief), for the Office of Immigration Litigation, United States Department of Justice, Washington, DC, for Respondent. ______________ PER CURIAM: Maria Cared Millan-Hernandez (“Millan-Hernandez”) petitions for review of a 2018 Board of Immigration Appeals (“BIA”) decision dismissing the appeal of an Immigration Judge’s (“IJ”) denial, without an evidentiary hearing, of Millan- Hernandez’s motion to suppress evidence of her alienage. Matter of Maria Cared Millan- Hernandez, No. A209 408 050 (Immig. Ct. Batavia, N.Y., Jan. 26, 2018), dismissed, (B.I.A. June 26, 2018). A movant is entitled to suppression of evidence in removal proceedings when she establishes that an “egregious” and “fundamentally unfair” violation of her Fourth Amendment rights resulted in the production of that evidence. Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984) (plurality opinion). If the constitutional violation “was based on race (or some other grossly improper consideration),” it qualifies as “egregious.” Almeida- Amaral, 461 F.3d at 235; see also Zuniga-Perez v. Sessions, 897 F.3d 114, 125 (2d Cir. 2018). If the documentary evidence that an applicant submits in support of her motion “could 2 support a basis for excluding the evidence,” Zuniga-Perez, 897 F.3d at 125 (internal quotation marks omitted) (emphasis in original); see also Cotzojay v. Holder, 725 F.3d 172, 178 (2d Cir. 2013), then she is entitled to an evidentiary hearing at which she may attempt to establish a prima facie case for suppression and thereby shift the burden to the government to justify its actions. We conclude that the agency erred by requiring that Millan-Hernandez rely on her documentary evidence alone and make a prima facie showing of an egregious Fourth Amendment violation before it would conduct a suppression hearing. We further conclude that, because Millan-Hernandez’s sworn statements and the police incident report that she submitted “could support” suppression under the ...
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