Ricardez-Rivera

MEMORANDUM *

On October 20, 2001, Maximo Ricardez-Rivera (“Ricardez-Rivera”) attempted to enter the United States illegally. He was placed in removal proceedings, where he applied for adjustment of status and cancellation of removal. An immigration judge (“IJ”) found that Ricardez-Rivera was ineligible for these forms of relief, notwithstanding his claim that immigration officials had previously violated his rights under the Fourth and Fifth Amendments. The Board of Immigration Appeals (“BIA”) affirmed, agreeing with the IJ’s conclusion that Ricardez-Rivera was ineligible for relief, and further holding that his claim under the Fourth Amendment was without evidentiary support. Ricar-dez-Rivera timely filed a petition for review.

We have jurisdiction to review the BIA’s decision under 28 U.S.C. § 1252 (a). We now grant Ricardez-Rivera’s petition for review and remand. Because the parties are familiar with the facts, we do not recount them here.

I.

Ricardez-Rivera contends that the IJ erred when he ruled that the immigration court lacked jurisdiction to consider his application for adjustment of status because Ricardez-Rivera was classified as an “arriving alien.” 1 See 8 C.F.R.…

I agree with the majority that RicardezRivera is entitled to an evidentiary hearing in the Immigration Court on his Fifth Amendment due process claim, and that if he prevails on this claim, under SalgadoDiaz he would be returned to his original prearrest status and the government could not rely on his attempted reentries to render him removable. Salgado-Diaz, 395 F.3d at 1164, 1168. He is entitled to a hearing because his affidavit filed in the Immigration Court in support of his motion to suppress established a prima facie Fifth Amendment violation. See Matter of Wong, 13 I. & N. Dec. 820 , 1971 WL 24387 (1971) (holding that a motion for suppression must be specific and detailed, and set forth a prima facie case).

However, Ricardez-Rivera has failed to establish a prima facie Fourth Amendment violation. In his affidavit, he alleged that the Border Patrol officers’ approached him on the San Diego county bus based on his Hispanic appearance and questioned him about his nationality.

As a matter of law, these facts do not trigger the Fourth Amendment because the Supreme Court has held that the questioning of a person by law enforcement officials on a public bus is not a seizure of…