# Gloria Esperanza Montero v. Immigration and Naturalization Service

> Court of Appeals for the Second Circuit · August 28, 1997 · 124 F.3d 381

URL: https://www.frixlaw.com/law-library/cases/9490625

## Case

- **Full name:** Gloria Esperanza MONTERO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** August 28, 1997
- **Citations:** 124 F.3d 381; 1997 U.S. App. LEXIS 22957
- **Precedential status:** Published
- **Opinion:** Dissent by Cabranes
- **Judges:** Van Graafeiland, Miner, Cabranes
- **Cited by:** 101 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9490625

## How later opinions describe it (automated extraction)

- rejecting argument that IRCA precluded deportation of undocumented alien based on evidence obtained in course of labor dispute, and holding that “[w]hether or not an undocumented alien has been the victim of unfair labor practices, such an alien has no entitlement to be in the…

## Opinion text

JOSÉ A. CABRANES, Circuit Judge,
dissenting:
I respectfully dissent because it is unclear from the record below whether the Board of Immigration Appeals (“BIA”) determined that Montero failed to establish a prima facie ease that 8 C.F.R. § 287.3 (“ § 287.3”) was violated, or whether it found that Montero failed to meet her ultimate burden of persuasion. Because of this ambiguity, and because I am persuaded that a prima facie case was established, I would remand the ease for clarification and for further findings if necessary.
Although parts of the decisions of the Immigration Judge (“IJ”) and the BIA suggest that they were addressing the § 287.3 claim on the merits, other parts suggest that the only question at issue was whether a prima facie case had been established, and the total effect is ambiguous. In laying out the applicable law in this case, the BIA cited a string of BIA cases for the proposition that “ ‘[o]ne who raises the claim questioning the legality of the evidence must come forward with *388 proof establishing a prima facie ease before the Service will be called on to assume the burden of justifying the manner in which it obtained the evidence.’” (citations omitted). The BIA later stated: “Ms. Montero asserts that the same officer both arrested and interrogated her in violation of 8 C.F.R. § 287.3 . As noted above, the respondent has the burden of proving that evidence should be suppressed due to a regulatory violation.” (footnote omitted). The “burden of proof’ that was “noted above” appears to refer to the burden of establishing aprima facie case, as described by the BIA earlier in its decision. Moreover, it is unclear why the BIA would have emphasized that the government has no obligation to justify itself in the absence of a prima facie showing of a regulatory violation, if in fact it had concluded that the government prevailed on the merits.
The IJ’s decision is similarly ambiguous. It seems to suggest that the government will not be required to rebut the presumption that the same officer arrested and interrogated Montero because no prima facie case had been made. Namely, the IJ noted that Montero never testified that the same agent arrested and examined her, and on that basis the IJ concluded that “I do not believe that under these circumstances the Government has an obligation to show which of the officers in attendance that day did arrest her.”
The ambiguity of the BIA and IJ decisions is highlighted most tellingly by the fact that the parties themselves both characterize the issue decided by the BIA as whether Monte-ro established a prima facie ease. The Government argues in support of “the BIA’s conclusion that Montero failed to meet her burden of establishing a prima facie violation of 8 C.F.R. § 287.3 .” Government’s Brief at 41.
In light of all this, and despite some countervailing evidence suggesting that the IJ and the BIA went beyond a consideration of the prima facie case, it is not clear to me that the BIA made a determination on the merits. This is significant because if the BIA actually decided that Montero failed to establish a prima facie case that § 287.3 was violated, I would conclude that this was error as a matter of law. 1 See CutCo Industries, Inc. v. Naughton, 806 F.2d 361, 365 (2d Cir.1986) (determination of whether prima facie case has been established is question of law reviewed de novo). The fact that Montero did not testify that the same agent arrested and deported her is not fatal to her prima facie case — as both the IJ and the BIA, however ambiguously, seemed to suggest — given the existence of documentary evidence clearly raising the possibility of a § 287.3 violation. The 1-213 Form (“Record of Deportable Alien”) completed by the examining officer, F. Meneses, indicates that this same officer apprehended Montero. Not only is Meneses’ name listed under the section labeled “Method of Location/Apprehension,” but the narrative portion of the form states, “Alienage and deportability established in field by SA Meneses.” There is some reason to believe, as the majority points out, ante, at 386-87 that in fact the I-213 does not conclusively establish that Meneses arrested Montero. Certainly, however, it is enough to establish a prima facie case.
I would therefore remand the case for clarification and, if necessary, further findings on the issue of whether § 287.3 was violated.
. The majority correctly notes that even if a violation of § 287.3 were established, this would only require that Montero’s deportation proceedings be invalidated, in the absence of a showing of prejudice, if this regulation implicates “fundamental rights derived from the Constitution or a federal statute.” Waldron v. INS, 17 F.3d 511, 518 (2d Cir.1994). I note that Montero presents a colorable claim that § 287.3 — which prevents the arresting officer from interrogating an alien unless no other officer is available — implicates fundamental rights, including the right to be free from coercive questioning and the right to impartiality in administrative proceedings. Because the issue of whether the INS violated § 287.3 has not been properly resolved, I would defer answering this question until such time as it became necessary to do so.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9490625. Public record. Not legal advice.