CHEN, District Judge:
Petitioner Luis Estuardo Vanegas-Ramirez was arrested and detained for removal from the United States during an early morning raid by federal agents, which uncovered evidence of Vanegas-Ramirez's Guatemalan citizenship. After being transferred from New York, where he had been residing, Vanegas-Ramirez was scheduled to appear for removal proceedings in Texas. Vanegas-Ramirez moved to change the venue of the removal proceedings to New York. In his motion, Vanegas-Ramirez voluntarily conceded his removability from the United States.
Vanegas-Ramirez's venue change motion was granted, and the removal proceedings against him were transferred to New York. During these proceedings, Vanegas-Ramirez (i) moved to suppress all evidence of his removability, including the concessions of removability that he had made in his venue change motion, and to terminate these proceedings, both on the basis that the raid by federal agents violated the Fourth and Fifth Amendments (the "suppression motion"); and (ii) applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT") (the "asylum application"). The Immigration Judge (the "IJ") denied both Vanegas-Ramirez's suppression motion and asylum application, and the Board of Immigration Appeals (the "BIA") substantially affirmed. Vanegas-Ramirez now petitions us to review the BIA's decision or, more accurately, the agency's decision.
In considering the petition, we revisit an important legal question: if the government initiates proceedings to remove an alien from the United States following an egregious Fourth Amendment violation, do the alien's concessions of removability made during the removal
For the reasons set forth below, we deny Vanegas-Ramirez's petition to review the agency's decision.
On September 24, 2007, Vanegas-Ramirez was temporarily staying with his relatives at a house in Levittown, New York.
Vanegas-Ramirez testified that, upon entering the house,
The same day, ICE agents arrested Vanegas-Ramirez and transported him to their field office in New York City for processing. At that time, an agent, using a Spanish-language interpreter, read Vanegas-Ramirez his Miranda rights and took his sworn statement, which indicated, among other things, that Vanegas-Ramirez (i) was a "citizen of Guatemala" and (ii) had "entered the United States [in] or about July 2002, near the Phoenix, AZ U.S.-Mexican border" illegally and without inspection. CAR at 219. Vanegas-Ramirez was eventually transported from New York to ICE detention centers in Texas.
On October 18, 2007, DHS filed a notice for Vanegas-Ramirez to appear for removal proceedings before IJ Eleazar Tovar ("IJ Tovar") in Texas.
On October 30, 2007, however, DHS released Vanegas-Ramirez from detention on a $6,000 bond, whereupon he moved back to his residence in Uniondale, New York.
On November 26, 2007, Vanegas-Ramirez moved to change the venue of the removal proceedings from Texas to New York. As part of his motion, Vanegas-Ramirez attached a declaration, in which, among other things, he conceded his removability by acknowledging that he was a "native and citizen of Guatemala" and "not a citizen of the United States," and that he had not been "inspected or paroled by an Immigration Officer at the time that [he] entered the United States." Id. at 252. Indeed, Vanegas-Ramirez explicitly conceded his removability:
Id. (emphasis added).
On December 4, 2007, IJ Tovar ordered the transfer of the removal proceedings against Vanegas-Ramirez to New York without a hearing. These proceedings ultimately came before IJ Philip Morace ("IJ Morace") in New York.
On July 3, 2008, Vanegas-Ramirez filed the suppression motion, alleging that the government raid was an egregious violation of the Fourth and Fifth Amendments and, thus, required IJ Morace to exclude all evidence of Vanegas-Ramirez's removability and terminate his removal proceedings.
IJ Morace orally denied the suppression motion on two separate grounds: (i) the government raid was not such an egregious violation of, what he termed, "fundamental fairness"; and (ii) notwithstanding the egregiousness issue, Vanegas-Ramirez's declaration to his venue change motion furnished evidence of removability that was independent from the government raid. Id. at 255-58, 261-63.
On July 8, 2010, Vanegas-Ramirez filed the application for asylum and withholding of removal based on an alleged fear of persecution for his membership in a particular social group,
According to Vanegas-Ramirez, his father, Carlos Vanegas ("Carlos"), was targeted by two groups in Guatemala: (i) a vengeful prisoner named "Manuel," whom Carlos had put behind bars in Melchor de Mencos, and Manuel's family; and (ii) covetous merchants in Guatemala City, whose businesses competed with Carlos's.
With respect to the prisoner, Manuel, and Manuel's family, Vanegas-Ramirez alleged that:
Id. at 160-61.
With respect to the other merchants, Vanegas-Ramirez alleged that:
Id. at 160.
At the May 9, 2011 hearing on the asylum application, Vanegas-Ramirez further alleged that the same groups that had targeted Carlos would likely try to kill him, "if they come looking for me." Id. at 144 (emphasis added). At the conclusion of the hearing, IJ Morace orally denied Vanegas-Ramirez's requests for asylum and withholding of removal, stating that Vanegas-Ramirez's testimony, while credible, lacked sufficient "details and specifics" about his alleged persecutors to establish a well-founded fear of being persecuted for membership in the Vanegas family, and that the "documentary evidence" that Vanegas-Ramirez submitted in support of his testimony was "very sparse." Id. at 70-71, 73-75. IJ Morace also denied Vanegas-Ramirez's request for CAT protection.
On February 4, 2013, the BIA affirmed IJ Morace's May 4, 2010 decision denying the suppression motion, on the ground that Vanegas-Ramirez's declaration in support of his venue change motion independently established his removability. The BIA accordingly declined to reach the issue of whether the government raid was egregious.
The BIA also affirmed IJ Morace's May 9, 2011 decision to deny the asylum application on both grounds relied upon by the IJ, i.e., that Vanegas-Ramirez had not testified in sufficient factual detail to prove his entitlement to such relief, and that he failed to provide enough documentary evidence to support his requests for relief.
"It is well-settled that we review the factual findings of [the agency] for substantial evidence. It is equally well-settled that, on appeal, issues of law are reviewed de novo." Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006) (citations omitted). While this Court has eschewed precise formulations of the substantial evidence standard for reviewing the agency's factual findings, it has suggested that this standard is equal to, or stricter than, the clear error standard for reviewing a district court's factual findings. Mei Chai Ye v. U.S. Dep't of Justice, 489 F.3d 517, 523 n. 4 (2d Cir.2007); see also 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary[.]").
The main issue on appeal is the agency's denial of the suppression motion based on the admissibility of Vanegas-Ramirez's concessions of removability in his venue change motion as independent evidence.
In Lopez-Mendoza, the Supreme Court held that the exclusionary rule, applied in criminal proceedings, does not apply in civil removal proceedings. 468 U.S. at 1034, 1050, 104 S.Ct. 3479. The Court, however, in dicta, suggested that removability evidence is subject to exclusion if it stems from "egregious violations of Fourth Amendment or other liberties." Id. at 1050-51, 104 S.Ct. 3479 (emphasis added).
Recently, this Court, in Pretzantzin, addressed the issue of independent, or sufficiently attenuated, evidence in removal proceedings. 736 F.3d at 651-52. The removability evidence at issue in Pretzantzin was birth certificates and arrest records for the petitioners, which the government had acquired from the United States Embassy and municipal transit police department, after raiding the petitioners' home. Id. at 644-45, 651-52. This Court held that, if the "nighttime, warrantless raid" of a home were an egregious Fourth Amendment violation, evidence "come at by exploitation of that illegality" would have to be excluded. Id. at 646, 651-52 (quoting Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)) (internal quotation marks omitted). Such evidence would include not only evidence obtained during the violation itself, but evidence obtained based on other information obtained during the violation. Id. at 651-52.
Pretzantzin, however, is distinguishable from this case. Vanegas-Ramirez's concessions of removability did not derive from the "exploitation" of the presumptively illegal government raid, Pretzantzin, 736 F.3d at 651, but, rather, from the "mere fact" that the raid had occurred, Lopez-Mendoza, 468 U.S. at 1040, 104 S.Ct. 3479. Vanegas-Ramirez's concessions of removability, while obtained during
In making his venue change motion, Vanegas-Ramirez was only required to (i) establish "good cause" for granting the motion, and (ii) identify his "fixed street address, including city, state and ZIP code, where [he] may be reached for further hearing notification." 8 C.F.R. § 1003.20(b), (c). To establish "good cause," Vanegas-Ramirez could have cited any number of the following discretionary factors: "administrative convenience, [his] residence, the location of witnesses, evidence and counsel, expeditious treatment of the case, and the cost of transporting witnesses and evidence to a new location." Lovell, 52 F.3d at 460. Removability was not one of these factors.
As Vanegas-Ramirez's counsel acknowledged to us at oral argument, Vanegas-Ramirez was not legally required to concede removability as part of his venue change motion, but did so believing it would increase the likelihood of his motion being granted without a hearing. Cf. In re Velasquez, 19 I. & N. Dec. at 382-83 (noting that "admissions of fact and concession of deportability in the motion for change of venue" are a "tactical decision," and conceding removability could "heighten the chance that [the government] would not oppose a change of venue"); Gawel v. INS, No. 93-3622, 1994 WL 405763, at *2 (7th Cir. Aug. 3, 1994) (unpublished) (suggesting that concessions of removability in a venue change motion might indirectly show the IJ that removal proceedings would be "expeditious" and not impose a burdensome "cost of transporting evidence and witnesses" to otherwise prove removability). In short, there was no legal requirement, only a strategic choice, for Vanegas-Ramirez to concede his removability. Consequently, the concern in Pretzantzin about the admission of evidence directly derived from an egregious Fourth Amendment violation is not present here.
In contrast to Pretzantzin, three decisions from this Court — Katris, Avila-Gallegos, and La Franca — are on all fours
Accordingly, we conclude that the agency did not err by denying the suppression
The other issue on appeal is whether the agency properly denied Vanegas-Ramirez's requests for asylum and withholding of removal, based on its finding that his testimony did not show a well-founded fear of persecution and, alternatively, that he provided insufficient documentary evidence to support his testimony.
Asylum and withholding of removal are "two alternative forms of relief" available to an alien claiming that he will be persecuted, if removed back to his native country. Melgar de Torres v. Reno, 191 F.3d 307, 311 (2d Cir.1999). The former is discretionary, and the latter is not. Compare 8 U.S.C. § 1158(b)(1)(A) ("may grant asylum"), with id. § 1231(b)(3)(A) ("may not remove"). See also Yang v. Gonzales, 478 F.3d 133, 141 (2d Cir.2007) ("Once the [requisite] showing is made, withholding of removal is mandatory, whereas asylum may be refused to an eligible petitioner in the discretion of the Attorney General.").
To be eligible for asylum, the alien must show that he is a "refugee" — that is, someone who is "unable or unwilling" to return to his native country "because of [past] persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
Eligibility for withholding of removal, however, requires a "clear probability of persecution," i.e., "it is more likely than not that the alien would be subject to persecution." INS v. Stevic, 467 U.S. 407, 413, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). The "clear probability" standard is higher than the "well-founded fear" standard. Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir.2006) ("It is well-settled that the burden of proof for a withholding of removal claim is higher than the burden of proof for an asylum claim."). As a result, "an applicant who fails to establish [his] eligibility for asylum necessarily fails to establish eligibility for withholding of removal." Yan Juan Chen v. Holder, 658 F.3d 246, 254 (2d Cir.2011) (per curiam) (internal quotation marks omitted).
A "well-founded fear" means that "a reasonable person in [the alien's] circumstances would fear persecution if [he] were to be returned to [his] native
Once the alien has established that he subjectively fears persecution,
Here, the only evidence that Vanegas-Ramirez offered at his removal proceedings in support of the asylum application was his own testimony. Vanegas-Ramirez testified that, in 1987, his father, Carlos, was attacked by the now-deceased prisoner, Manuel, who, along with his surviving family, had a vendetta against Carlos. Vanegas-Ramirez also testified that, in 2002, Carlos was attacked by unnamed individuals, whom Carlos believed were members of Manuel's family. However, Vanegas-Ramirez offered no evidence beyond his father's belief that this attack had any connection to Manuel's family.
Vanegas-Ramirez's testimony is insufficient, at a minimum, to establish the objective element of a well-founded fear of persecution. See Carcamo-Flores, 805 F.2d at 64. Even accepting the truth of the testimony, it only identifies a single, decades-old attack on Carlos by Vanegas-Ramirez's would-be persecutors, i.e., Manuel's family, and an unsubstantiated belief that a 2002 attack was also perpetrated by Manuel's family. These incidents hardly support a well-founded fear that Manuel's family will persecute Vanegas-Ramirez in the future.
Accordingly, we conclude that the agency did not err by denying the asylum application based on the failure of Vanegas-Ramirez's testimony to establish a "well-founded" fear and, by extension, a "clear probability" of persecution.
Therefore, we affirm the agency's decision and deny Vanegas-Ramirez's petition.