Jose Roman Munoz-Aguirre v. U.S. Attorney General

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11164
Non-Argument Calendar
____________________
JOSE ROMAN MUNOZ-AGUIRRE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-021-676
____________________
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 1 of 10

-- 1 of 10 --

2 Opinion of the Court 23-11164
Before WILSON, BRANCH , and L UCK , Circuit Judges.
PER CURIAM:
Jose Munoz-Aguirre appeals the Board of Immigration
Appeals’s (“BIA”) decision affirming the Immigration Judge’s (“IJ”)
orders denying his motions to suppress evidence and terminate
proceedings based on an alleged Fourth Amendment violation and
finding that he was removable. He argues that all evidence of his
alienage should be suppressed because his immigration status was
initially discovered during an illegal traffic stop. He also requests
that we remand his case to the BIA to allow for the possibility that
the Department of Homeland Security (“DHS”) exercises its
prosecutorial discretion not to have him removed in light of the
Supreme Court’s decision in United States v. Texas.1 Because the
BIA correctly determined that the unlawfulness of the traffic stop
was immaterial to the disposition of his case due to the fact that
Munoz-Aguirre stipulated to the IJ that he was removable, we
affirm the BIA’s decision. We do not address Munoz-Aguirre’s
request to remand his case to the BIA so that DHS might exercise
its prosecutorial discretion because we lack jurisdiction over this
request.
I. Background
Munoz-Aguirre entered the United States from Mexico on
April 1, 1996. During his time in the United States, he has worked
1 United States v. Texas, 599 U.S. 670 (2023).
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 2 of 10

-- 2 of 10 --

23-11164 Opinion of the Court 3
in manual labor positions. Since October 2016, he has worked as a
farmer at Creek Farm Wash in Jemison, Alabama. According to
Munoz-Aguirre’s sworn affidavit, he was on his way to work on
January 8, 2018, when he approached law enforcement officers
who were partially blocking a road on the farm. The officers did
not have permission from the farm’s owner to be on the property
and Munoz-Aguirre was not committing any traffic violations
while driving on the farm. The officers signaled for Munoz-Aguirre
to pull over. After stopping the vehicle, an officer asked Munoz-
Aguirre a series of questions, including whether he was in the
United States legally, to which Munoz-Aguirre responded “no.” As
a result of this answer, Munoz-Aguirre was issued a Notice to
Appear (“NTA”) which charged him with being removable
pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the
United States without being admitted or paroled.
Munoz-Aguirre was scheduled to appear before an IJ in New
Orleans, Louisiana on August 15, 2018. He retained counsel who
filed a motion to change the venue of his removal proceedings
from New Orleans to Atlanta, Georgia pursuant to 8 C.F.R. §
1003.20, arguing that Atlanta would be a more convenient location
for both Munoz-Aguirre and his counsel. The IJ denied the motion
noting that Munoz-Aguirre’s counsel “need[ed] to enter pleadings
to the NTA” before a transfer of venue could be approved.
Accordingly, Munoz-Aguirre’s counsel filed a second motion to
change the venue, again arguing that Atlanta was a more
convenient venue, but also admitting that Munoz-Aguirre was an
alien who was present in the United States without being admitted
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 3 of 10

-- 3 of 10 --

4 Opinion of the Court 23-11164
or paroled. Munoz-Aguirre also admitted that “he [was]
removable as charged” and “designate[d] Mexico as his country of
removal.” Accordingly, the IJ found that good cause had been
shown and granted the motion to change the venue to Atlanta.
On February 4, 2019, Munoz-Aguirre appeared before an IJ
in Atlanta. When the IJ asked how Munoz-Aguirre pleaded, his
counsel stated that he denied the allegations and was going to file
a motion to suppress the evidence of his alienage because he
believed it had been obtained in violation of the Fourth
Amendment to the U.S. Constitution. The IJ noted that Munoz-
Aguirre had already admitted in his second motion to change
venue that he was removable, and it appeared he was now trying
to go back on that concession after he had obtained the benefit of
the venue change. Munoz-Aguirre agreed with the IJ that he had
“resolved the pleadings by filing [his] [second] motion to change
venue” but asserted that the admissions in that motion were “just
a mistake” and “should’ve been a denial.” The IJ thus noted that
she “had a pleading filed by an officer of the Court” and that there
was “nothing . . . indicating that it [was] suspect.” Accordingly, the
IJ found that “based [on] the admission in the Notice to Appear”
that Munoz-Aguirre was not a citizen of the United States and was
a national of Mexico. The IJ took note of Munoz-Aguirre’s
objections to his alienage findings based on the earlier admissions
and gave his counsel until the end of the month to file any motions
or applications for relief.
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 4 of 10

-- 4 of 10 --

23-11164 Opinion of the Court 5
After the February 4, 2019, hearing, Munoz-Aguirre filed
three motions: a motion to suppress, a motion for discovery, and a
motion to terminate removal proceedings. These three motions
all raised the same argument, that officials unlawfully seized
Munoz-Aguirre and interrogated him in violation of the Fourth
Amendment and therefore all evidence of his alienage should be
suppressed, and the removal proceedings should be dismissed.
Munoz-Aguirre attached an affidavit from himself and Cullom
Walker, the owner of the farm, which asserted that Munoz-Aguirre
had not committed any traffic violation prior to being stopped and
that the officer did not have permission to be on the farm. In a
summary order, the IJ denied the motion to terminate removal
proceedings noting that Munoz-Aguirre’s removability was
“established in written pleadings filed within [the second
counseled] motion to change venue.” The IJ also summarily
denied the motions to suppress and for discovery.
After Munoz-Aguirre’s motions were denied, he applied for
asylum. At the hearing to address his asylum claims, Munoz-
Aguirre again attempted to bring up his Fourth Amendment
arguments, but the IJ did not allow testimony on the subject and
determined that it was already preserved for a potential appeal.
Following the hearing, the IJ issued an oral decision denying
Munoz-Aguirre’s claims for asylum and relief from removal and
ordered him removed to Mexico. Munoz-Aguirre appealed this
decision to the BIA.
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 5 of 10

-- 5 of 10 --

6 Opinion of the Court 23-11164
On appeal to the BIA, Munoz-Aguirre again argued that the
initial traffic stop, which led to the discovery of his alienage,
violated the Fourth Amendment and therefore any evidence of his
alienage should be excluded. He concluded his brief before the BIA
by asserting that “a recent change in DHS immigration policy”
meant that “the U.S. [would] no longer deport people solely
because they [were] undocumented” and that he could benefit
from this policy. The BIA dismissed Munoz-Aguirre’s appeal,
reasoning that the constitutionality of his alleged seizure was “not
dispositive of [his] appeal” because “the only evidence establishing
[his] alienage in this case consist[ed] of [his] own admission,
through his counsel” that he was a Mexican national who was
present in the U.S. without being admitted or paroled. The BIA
thus determined that the IJ “correctly found that alienage ha[d]
been established through the written pleadings in the motion to
change venue, shifting the burden onto [Munoz-Aguirre] to
establish that he was lawfully present in the United States[.]”
Because Munoz-Aguirre had not met this burden, the BIA
determined that the IJ properly ordered that he be removed.
Munoz-Aguirre timely appealed the BIA’s decision.
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 6 of 10

-- 6 of 10 --

23-11164 Opinion of the Court 7
II. Standard of Review
We review the BIA’s decision as the final judgment and
review the IJ’s decision as well to the extent that the BIA expressly
adopts or agrees with it. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399,
403 (11th Cir. 2016). Furthermore, we review our subject matter
jurisdiction de novo. Blanc v. U.S. Att’y Gen., 996 F.3d 1274, 1277
(11th Cir. 2021).
III. Discussion
On appeal, Munoz-Aguirre argues that evidence of his
alienage should have been suppressed under the exclusionary rule
because in his view the officers egregiously violated his Fourth
Amendment rights by stopping him based solely on his race and
ethnicity. He asserts that his alienage was only discovered because
of this unlawful stop, and therefore any evidence of his alienage
should be excluded under the fruit of the poisonous tree doctrine.
He also argues that we should remand his case to the BIA in light
of the Supreme Court’s decision in United States v. Texas, which
allowed DHS’s policy of affording prosecutorial discretion for
aliens who are only removable based on their alienage to take
effect. The government responds by arguing that even assuming a
Fourth Amendment violation did occur, it would not operate to
exclude Munoz-Aguirre’s concession regarding his alienage in his
venue motion. Upon careful review, we agree with the
government.
We begin with Munoz-Aguirre’s argument that evidence of
his alienage should be excluded because his initial traffic stop
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 7 of 10

-- 7 of 10 --

8 Opinion of the Court 23-11164
constituted an egregious violation of the Fourth Amendment.
Whether this traffic stop was an egregious constitutional violation
or not is irrelevant because the only evidence that the BIA relied
upon in affirming the IJ’s decision was Munoz-Aguirre’s concession
in court filings that he was an alien present in the United States
without being paroled or admitted.2
“[A] distinct and formal admission or concession by an
attorney acting in his professional capacity binds his client as a
judicial admission.” Dos Santos v. U.S. Att’y Gen., 982 F.3d 1315,
1319 (11th Cir. 2019) (quotations omitted). Therefore, “when an
attorney makes a tactical admission before an [IJ], that admission is
binding on his alien client and may be relied upon as evidence of
[removability].” Id. (quotations omitted). Only limited “egregious
circumstances” allow an alien to be released from his counsel’s
concession of removability. Id. Three factors are to be utilized in
determining if “egregious circumstances” surround a removability
admission: “(1) whether the concession was untrue or incorrect, (2)
whether the concession was so unfair that it led to an unjust result,
2 To the extent that Munoz-Aguirre is arguing that DHS would not have
discovered his identity and initiated removal proceedings against him absent
the alleged unlawful traffic stop—and therefore he would not have been in
court to make a concession regarding his alienage—such an argument is
foreclosed by the Supreme Court’s decision in INS v. Lopez-Mendoza, 468 U.S.
1032 (1984). In Lopez-Mendoza, the Supreme Court emphasized that “[t]he
‘body’ or identity of a defendant or respondent in a criminal or civil proceeding
is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded
that an unlawful arrest, search, or interrogation occurred.” Id. at 1039. Thus,
the fact that Munoz-Aguirre was hailed into court cannot be suppressed.
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 8 of 10

-- 8 of 10 --

23-11164 Opinion of the Court 9
and (3) whether the concession was the result of unreasonable
professional judgment.” Id. (quotation omitted). We have
recognized “holding an alien to a true concession is not ‘egregious’
in any respect,” and therefore, if a challenged concession is not
untrue or incorrect, “we stop there.” Id.
Here, the BIA correctly determined that the legality of
Munoz-Aguirre’s traffic stop was not dispositive of his challenge to
the IJ’s finding that he was removable. Even if the exclusionary
rule applied to Munoz-Aguirre’s initial statement to law
enforcement, it would not result in the suppression of his counsel’s
admission in the change of venue motion that Munoz-Aguirre was
an alien who was present in the United States without being
paroled or admitted into the country. Munoz-Aguirre failed to
argue below, and does not argue now, that any of the three factors
for being released from his removability concession are present.
That is, he has not shown that the concession was (1) false; (2) so
unfair as to lead to an unjust result; or (3) the result of unreasonable
professional judgment. Indeed, Munoz-Aguirre’s counsel made
the concession because he wanted the benefit of litigating the case
in Atlanta and not in New Orleans, and Munoz-Aguirre has never
argued that tactical decision constituted unreasonable professional
judgment. Then, after having achieved the change in venue he
sought, he attempted to reverse course. Accordingly, the BIA did
not err in holding Munoz-Aguirre to this concession and affirming
the IJ’s removal order.
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 9 of 10

-- 9 of 10 --

10 Opinion of the Court 23-11164
Turning to Munoz-Aguirre’s request for us to remand the
case to the BIA so that he might receive the benefit of prosecutorial
discretion following the Supreme Court’s decision in United States
v. Texas, we lack jurisdiction over such a request. Under the
Immigration and Nationality Act (“INA”), our jurisdiction is
limited to reviewing final orders of removal. 8 U.S.C. § 1252(a)(1).
Furthermore, the INA deprives us of subject matter jurisdiction
over specific types of immigration actions, including over
“decision[s] or action[s] by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien[.]” 8 U.S.C. § 1252(g). We have held that the plain
language of § 1252(g) “bars us from questioning [DHS’s]
discretionary decisions to commence removal[.]” Alvarez v. U.S.
Immigr. & Customs Enf’t, 818 F.3d 1194, 1203 (11th Cir. 2016).
Accordingly, we cannot entertain Munoz-Aguirre’s request to
remand the case to the BIA so that he might be afforded
prosecutorial discretion.
PETITION DENIED IN PART AND DISMISSED IN
PART.
USCA11 Case: 23-11164 Document: 16-1 Date Filed: 02/12/2024 Page: 10 of 10

-- 10 of 10 --