Valdilene Goncalves Teixeira, et al v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: FISHER, JORDAN and GREENAWAY JR., Circuit Judges. Total Pages: 4. Judge: GREENAWAY JR. Authoring.

Case: 14-3033

Document: 003111859764

Page: 1

Date Filed: 01/28/2015

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3033
_____________
VALDILENE GONCALVES TEIXEIRA;
JONAS RICARDO ARRABAL;
JESUEL RICARDO ARRABAL,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of Decision of the Board of Immigration Appeals
(A201-111-638, A201-111-639, A201-111-640)
_____________
Submitted Under Third Circuit LAR 34.1(a)
January 22, 2015
______________
Before: FISHER, JORDAN, GREENAWAY, JR., Circuit Judges.
(Opinion Filed: January 28, 2015)
______________
OPINION*
______________

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

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Document: 003111859764

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Date Filed: 01/28/2015

GREENAWAY, JR.; Circuit Judge.
Petitioners Valdilene Goncalves Teixeira, Jesuel Ricardo Arrabal, and Jonas
Ricardo Arrabal (“Petitioners”) seek review of the decision of the Board of Immigration
Appeals (“BIA”) dismissing their appeal of the order of removal by the Immigration
Judge (“IJ”). Petitioners argue that the BIA abused its discretion, first by failing to
consider all positive factors in favor of Petitioners and second because there was
sufficient evidence that Immigration and Customs Enforcement (“ICE”) officers engaged
in egregious conduct when arresting Petitioners. We will deny the petition for review.
We will not disturb a discretionary decision of the BIA unless it is “‘arbitrary,
irrational, or contrary to law.’” Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 270 (3d Cir.
2012) (quoting Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002)). Petitioners argue
that the BIA should have considered the fact that they have lived in the United States for
approximately ten years without incident. However, during removal proceedings,
Petitioners admitted the factual allegations contained in the Notices to Appear (i.e., that
they are natives and citizens of Brazil who entered the United States at an unknown place
on an unknown date without admission or parole by an inspection officer) and conceded
the charge of removability. As such, it was well within the BIA’s discretion to dismiss
their appeal.

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The BIA did not abuse its discretion in denying Petitioners’ motion to reopen
proceedings. “A motion to reopen proceedings shall not be granted unless it appears . . .
that evidence sought to be offered is material and was not available and could not have
been discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c). Petitioners
point to our decision in Oliva-Ramos and argue that “the facts outlined . . . were not
available at the time of [their] proceedings before the IJ.” Pet’rs’ Br. at 6. The BIA was
not persuaded that this satisfied § 1003.2(c); we agree.
First, we did not find in Oliva-Ramos that there was egregious conduct or that a
pattern and practice of such behavior existed, but rather we remanded to allow OlivaRamos to present previously unavailable evidence obtained by virtue of a Freedom of
Information Act request. Oliva-Ramos, 694 F.3d at 282 (“We do not suggest that these
allegations are established fact, nor that they would necessarily satisfy Oliva-Ramos’s
burden under Lopez-Mendoza [468 U.S. 1032 (1984)] even if proven.”). Second, the
unestablished facts of Oliva-Ramos do not advance Petitioners’ arguments here.1
Finally, Petitioners’ affidavits fail to provide any evidence “establish[ing] either (a) that a
constitutional violation that was fundamentally unfair had occurred, or (b) that the

1

Petitioners attempt to rely on the discussion in Oliva-Ramos that addresses
“widespread violations of the Fourth Amendment . . . serv[ing] as an independent
rationale for applying the exclusionary rule in civil removal proceedings.” 694 F.3d at
280. However, this fails for the simple reason that Petitioners have produced no evidence
that the ICE officers’ conduct was egregious. This is fundamentally different than OlivaRamos, where we stated: “Oliva-Ramos ha[d] attempted to introduce evidence of a
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Date Filed: 01/28/2015

violation — regardless of its unfairness — undermined the reliability of the evidence in
dispute.” Id. at 278.
For the foregoing reasons, we will deny the petition for review.

consistent pattern of conducting these raids during unreasonable hours, such as the 4:30
a.m. raid that occurred here.” Id. at 281 (emphasis added).
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