Werquely Jeanini Almeida-Amaral v. Alberto Gonzales, 461 F.3d 231 (2d Cir. 2006). · Go Syfert
Werquely Jeanini Almeida-Amaral v. Alberto Gonzales, 461 F.3d 231 (2d Cir. 2006). Cases Citing This Book View Copy Cite
Quick Summary

Evidence in civil deportation proceedings is excludable if a Fourth Amendment violation is egregious due to fundamental unfairness or undermines the reliability of the evidence.

A petitioner seeking to suppress evidence in removal proceedings argued that his Fourth Amendment rights were violated when a border agent commanded him to stop without suspicion. The court holds that evidence in civil deportation proceedings may be excluded if the government's violation is egregious, either because it transgresses notions of fundamental fairness or because it undermines the reliability of the evidence. The court determines that while the suspicionless seizure was invalid, it was not egregious because the petitioner failed to provide sufficient evidence that the stop was based on race or that the conduct was sufficiently severe to violate fundamental fairness. The court also finds that statements from a seventeen-year-old minor are admissible under agency regulations.

249 citation events (249 in the last 25 years) across 9 distinct courts.
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Cited for
At page 235 Determining suppression based on egregious violation35 citing cases“even where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the stop was based on race (or some other grossly improper consideration).”12 citing courts quote it · 34 listed here · 1 cautionary
  • Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. 2008).published Cited "but see" · 4 cites
    In addition, we have observed that “even where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the.stop was based on race (or some other grossly improper consideration).” Id. at 235 ; accord M…
  • United States v. Leovijildo Mitra-Hernandez, No. 20-1175 (3d Cir. Jan. 24, 2022).unpublished 3 cites
    ([E]ven where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the stop was based on race (or some other grossly improper consideration).)
  • Arriaga-Hernandez v. Attorney Gen. of the United States, 712 F. App'x 151 (3d Cir. 2017).unpublished 4 cites
    However, as the petitioner notes in his brief, in Ponta- Garcia v. Attorney General of the United States,14 we held that reinstatement of removal 11 See Cervantes-Cuevas v. I.N.S., 797 F.2d 707 , 709–10 (9th Cir. 1985) (finding a basis for…
  • Maria Yanez-Marquez v. Loretta Lynch, 789 F.3d 434 (4th Cir. 2015).published 3 cites
    See Oli-var-Ramos, 694 F.3d at 278 (concluding that an egregious constitutional violation involves either a constitutional violation that was fundamentally unfair or, alternatively, a constitutional violation that, regardless of its unfair…
  • Oliva-Ramos v. Attorney Gen. of the United States, 694 F.3d 259 (3d Cir. 2012).published 3 cites
    See id. at 234 (“[W]e now apply it as the law of the circuit.”).
  • Socorro Perez-Hernandez v. Todd Blanche, No. 25-3592 (6th Cir. July 28, 2026).published
    ([W]ere there evidence that the stop was based on race, the violation would be egregious, and the exclusionary rule would apply.)
  • Millan-Hernandez v. Barr, 965 F.3d 140 (2d Cir. 2020).published 2 cites
    Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006); see also INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984) (plurality opinion).
  • Ramirez-Aguilar v. Barr, No. 17-1080-ag (2d Cir. Sept. 6, 2019).unpublished
    See 8 U.S.C. § 1252 (b)(4)(B); Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006).
  • Ortiz-Diaz v. Whitaker, No. 17-2323 (2d Cir. Jan. 24, 2019).unpublished 3 cites
    Suppressing evidence in removal proceedings is warranted “if record evidence establishe[s] either (a) that an egregious violation that was fundamentally unfair ha[s] occurred, or (b) that the violation—regardless of its egregiousness or un…
  • Luis Sanchez v. Jefferson Sessions, No. 14-71768 (9th Cir. Sept. 19, 2018).published
    SESSIONS 27 that the officers suspected that Sanchez and his companions were “undocumented worker[] aliens.” It is beyond question that detentions and interrogations based on racial or ethnic profiling and stereotyping egregiously violate…
Show 24 more citing cases
  • Vazquez-Medrano v. Sessions, No. 17-1153 (2d Cir. June 12, 2018).unpublished
    Suppression of evidence in removal proceedings is warranted “if record evidence establishe[s] either (a) that an egregious violation that was fundamentally unfair ha[s] occurred, or (b) that the violation—regardless of its egregiousness or…
  • Cerros-Ramon v. Sessions, No. 16-3747-ag (2d Cir. Apr. 24, 2018).unpublished 3 cites
    (interpreting INS v. Lopez‐Mendoza, 468 U.S. 1032 , 1050‐51 (1984) (plurality opinion))
  • Cruz-Ramos v. Sessions, 687 F. App'x 79 (2d Cir. 2017).unpublished
    In removal proceedings, suppression on constitutional grounds is warranted only if “record evidence established] ... that an egregious [Fourth Amendment] violation that was fundamentally unfair ... occurred.” Almeida-Amaral v. Gonzales, 46…
  • Guillen-Jimenez v. Sessions, 685 F. App'x 15 (2d Cir. 2017).unpublished 3 cites
    In removal proceedings, suppression on constitutional grounds is warranted if “record evidence established] ... that an egregious [Fourth Amendment] violation that was fundamentally unfair ... occurred.” Alme ida-Amaral v. Gonzales, 461 F.…
  • Esteban Nolasco-Gaspar v. Eric Holder, Jr., 581 F. App'x 546 (6th Cir. 2014).unpublished
    (a stop based solely on race is such an egregious violation)
  • Maldonado v. Holder, 763 F.3d 155 (2d Cir. 2014).published 2 cites
    This Court has since answered the question left open in Lopez-Mendoza by holding that exclusion of evidence is appropriate if “record evidence established] ... that an egregious violation that was fundamentally unfair had occurred.” Almeid…
  • Guillen-Jimenez v. Holder, 567 F. App'x 11 (2d Cir. 2014).unpublished
    We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. ‘When the BIA does not expressly adopt the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, this Court m…
  • Guillen-Jimenez v. Holder, 567 F. App'x 28 (2d Cir. 2014).unpublished
    We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal. ‘When the BIA does not expressly adopt the IJ’s decision, but its brief opinion closely tracks the' IJ’s reasoning, this Court…
  • Pretzantzin v. Holder, 736 F.3d 641 (2d Cir. 2013).published 2 cites
    In Lopez-Mendoza , the Supreme Court held that a Fourth Amendment violation does not, standing alone, justify the suppression of evidence in the course of a civil deportation proceeding, id. at 1050 , 104 S.Ct. 3479 ; this Court has since…
  • Jose Pretzantzin v. Holder, 725 F.3d 161 (2d Cir. 2013).published 2 cites
    In Lopez-Mendoza , the Supreme Court held that a Fourth Amendment violation does not, standing alone, justify the suppression of evidence in the course of a *166 civil deportation proceeding, id. at 1050 ; this Court has since interpreted…
  • Doroteo Sicajau Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 2013).published 2 cites
    This Court had no “doubts about the veracity of the evidence obtained as a result of the seizure,” but questioned whether “the agent’s stop of Almeida-Amaral transgressed notions of fundamental fairness.” Id. at 235 (internal quotation mar…
  • Juan Martinez Carcamo v. Eric H. Holder, Jr., 713 F.3d 916 (8th Cir. 2013).published
    See, e.g., Oliva-Ramos v. Att'y Gen., 694 F.3d 259, 272, 277-80 (3d Cir.2012) (requiring exclusion "where constitutional violations by immigration officers are 'widespread' or evidence has been obtained as a result of 'egregious violations…
  • Santos v. Holder, 486 F. App'x 918 (2d Cir. 2012).unpublished
    See 8 U.S.C. § 1252 (b)(4)(B); Almeidar-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir.2006).
  • Gomez Velez v. Holder, 456 F. App'x 48 (2d Cir. 2012).unpublished 2 cites
    We have explained that an egregious constitutional violation will trigger the exclusionary rule in removal proceedings where, either: (1) “an individual is subjected to seizure for no reason at all ... if the seizure is sufficiently severe…
  • Flores Diaz v. Holder, 430 F. App'x 36 (2d Cir. 2011).unpublished 2 cites
    As there is no reason to doubt the veracity of the evidence in question, and Flores Diaz does not suggest that his arrest was motivated by race or any other “grossly improper consideration,” he was entitled to suppression only if: (1) he w…
  • Singh v. Mukasey, 553 F.3d 207 (2d Cir. 2009).published
    In interpreting the Supreme Court’s decision, this court has held that exclusion of evidence is appropriate ‘“if record evidence established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that the…
  • Farag v. United States, 587 F. Supp. 2d 436 (E.D.N.Y. 2008).published 2 cites
    In Almeida-Amaral v. Gonzales, the Second Circuit, discussing when a Fourth Amendment violation based on an illegal border-patrol stop would justify suppression of evidence obtained as a result of the stop in a civil deportation proceeding…
  • Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008).published 3 cites
    With *441 regard to Fourth Amendment violations, suppression is warranted only when the evidence indicates “either (a) that an egregious violation that was fundamentally unfair has occurred, or (b) that the violation — regardless of its eg…
  • Pietrzak v. Mukasey, 260 F. App'x 337 (2d Cir. 2008).unpublished
    (holding that “exclusion of evidence is appropriate under the rule of Lopez-Mendoza if record evidence established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that the violat…)
  • Gonzalez-Martinez v. Lynch, 614 F. App'x 24 (2d Cir. 2015).unpublished
  • Greiven Valverde-Urena v. Barr, No. 18-82 (2d Cir. Apr. 9, 2019).unpublished
  • Matute v. Garland, No. 22-6171 (2d Cir. June 3, 2024).unpublished
  • Erick Yoc-Us v. Attorney Gen. United States, 932 F.3d 98 (3d Cir. 2019).published
  • Medley v. Garland, 71 F.4th 35 (2d Cir. 2023).published
At page 234 Burden of proof in civil deportation proceedings18 citing casesThe [.Lopez-Mendoza ] Court, seemingly inadvertently, used the conjunctive ‘and’ instead of the disjunctive ‘or’ to link these two possible grounds for deeming a violation egregious.1 citing court put it this way · 16 listed here · 1 cautionary
  • Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. 2008).published Cited "but see" · 4 cites
    In addition, we have observed that “even where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the.stop was based on race (or some other grossly improper consideration).” Id. at 235 ; accord M…
  • Maria Yanez-Marquez v. Loretta Lynch, 789 F.3d 434 (4th Cir. 2015).published 3 cites
    (The [.Lopez-Mendoza ] Court, seemingly inadvertently, used the conjunctive ‘and’ instead of the disjunctive ‘or’ to link these two possible grounds for deeming a violation egregious.)
  • Oliva-Ramos v. Attorney Gen. of the United States, 694 F.3d 259 (3d Cir. 2012).published 3 cites
    ([W]e now apply it as the law of the circuit.)
  • Lopez, No. 1:26-cv-05752 (E.D.N.Y. Sept. 28, 2026).
    The Second Circuit first applied this limitation in Almeida–Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir. 2006), and declined to suppress the evidence at issue.
  • Lyttle v. Garland, No. 21-6389 (2d Cir. Mar. 22, 2023).unpublished
    (explaining that the government “must show only identity and alienage; the burden then shifts to the [alien] to prove the time, place, and manner of his entry)
  • Hernan Adriano Meza v. U.S. Attorney Gen., No. 18-15161 (11th Cir. Oct. 18, 2019).unpublished
    However, a plurality of the Lopez-Mendoza Court suggested in dicta, and other circuits have since held, that suppression might be warranted in the case of 13 Case: 18-15161 Date Filed: 10/18/2019 Page: 14 of 17 “egregious violations of Fou…
  • Maldonado v. Holder, 763 F.3d 155 (2d Cir. 2014).published 2 cites
    This Court has since answered the question left open in Lopez-Mendoza by holding that exclusion of evidence is appropriate if “record evidence established] ... that an egregious violation that was fundamentally unfair had occurred.” Almeid…
  • Tawfik v. Mukasey, 299 F. App'x 45 (2d Cir. 2008).unpublished
    Almeida-Amaral v. Gonzales, 461 F.3d 231, 234 (2d Cir.2006) (quoting INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 , 104 S.Ct. 3479 , 82 L.Ed.2d 778 (1984)).
  • Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008).published 3 cites
    With *441 regard to Fourth Amendment violations, suppression is warranted only when the evidence indicates “either (a) that an egregious violation that was fundamentally unfair has occurred, or (b) that the violation — regardless of its eg…
  • Melnitsenko v. Mukasey, 517 F.3d 42 (2d Cir. 2008).published 2 cites
    First, it stated that its “conclusions concerning the exclusionary rule’s value might change, if there developed good reason to believe that Fourth Amendment violations by [immigration] officers were widespread.” And, second, it explained…
Show 6 more citing cases
At page 237 Determining egregiousness of stop without race evidence13 citing cases[W]ere there evidence that the stop was based on race, the violation would be egregious, and the exclusionary rule would apply.3 citing courts put it this way · 12 listed here · 1 cautionary
  • Pinto-Montoya v. Mukasey, 540 F.3d 126 (2d Cir. 2008).published Cited "but see" · 4 cites
    (concluding that petitioner’s mere assertion, without more, that he was stopped on the basis of race was insufficient to establish that the stop was race-based)
  • Jairo Sanchez v. Jefferson Sessions III, 885 F.3d 782 (4th Cir. 2018).published
    ([W]ere there evidence that the stop was based on race, the violation would be egregious, and the exclusionary rule would apply.)
  • Arriaga-Hernandez v. Attorney Gen. of the United States, 712 F. App'x 151 (3d Cir. 2017).unpublished 4 cites
    ([The petitioner] offers nothing other than his own intuition to show that race played a part in the arresting agent’s decision.)
  • Socorro Perez-Hernandez v. Todd Blanche, No. 25-3592 (6th Cir. July 28, 2026).published
    “were there evidence that the stop was based on race, the violation would be egregious, and the exclusionary rule would apply.”
  • Allen, No. 1:26-cv-04142 (S.D.N.Y. Sept. 11, 2026).
    (rejecting petitioner’s claim that his arrest was based in part on race where he failed to “allege[] facts adequate to support that belief)
  • Ortiz-Diaz v. Whitaker, No. 17-2323 (2d Cir. Jan. 24, 2019).unpublished 3 cites
    Suppressing evidence in removal proceedings is warranted “if record evidence establishe[s] either (a) that an egregious violation that was fundamentally unfair ha[s] occurred, or (b) that the violation—regardless of its egregiousness or un…
  • Cerros-Ramon v. Sessions, No. 16-3747-ag (2d Cir. Apr. 24, 2018).unpublished 3 cites
    In civil immigration proceedings, a Fourth Amendment violation alone does not justify suppression of evidence: Suppression is appropriate if, inter alia, record evidence establishes that ʺan egregious violation that was fundamentally unfai…
  • Apolonio Aguilar-Hernandez v. Attorney Gen. United States, 544 F. App'x 67 (3d Cir. 2013).unpublished
    However, he has provided nothing beyond his own speculation to establish that Sergeant Fahr’s conduct was race-based. 1 This is not sufficient to establish an egregious violation, see Almeida-Amaral v. Gonzales, 461 F.3d 231, 237 (2d Cir.2…
  • Doroteo Sicajau Cotzojay v. Holder, 725 F.3d 172 (2d Cir. 2013).published 2 cites
    This Court had no “doubts about the veracity of the evidence obtained as a result of the seizure,” but questioned whether “the agent’s stop of Almeida-Amaral transgressed notions of fundamental fairness.” Id. at 235 (internal quotation mar…
  • Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010).published 3 cites
    While “egregious” violations are not limited to those of physical brutality, Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 (9th Cir.1994), Lopez-Mendoza requires more than a violation to justify exclusion, Almeida-Amaral v. Gonzales, 461 F.3d…
Show 2 more citing cases
  • Farag v. United States, 587 F. Supp. 2d 436 (E.D.N.Y. 2008).published 2 cites
    “were there evidence that the stop was based on race, the violation would be egregious, and the exclusionary rule would apply”
  • Lopez-Gabriel v. Holder, 653 F.3d 683 (8th Cir. 2011).published
At page 233 Arrest seizure and evidence suppression under fourth amendment10 citing casesholding that the agency’s factual findings are reviewed for substantial evidence1 citing court put it this way
  • Maria Yanez-Marquez v. Loretta Lynch, 789 F.3d 434 (4th Cir. 2015).published 3 cites
    See Oli-var-Ramos, 694 F.3d at 278 (concluding that an egregious constitutional violation involves either a constitutional violation that was fundamentally unfair or, alternatively, a constitutional violation that, regardless of its unfair…
  • Rodriguez v. Barr, 943 F.3d 134 (2d Cir. 2019).published
    Almeida‐Amaral v. Gonzales, 461 F.3d 231, 233 (2d Cir. 2006).
  • Ramirez-Aguilar v. Barr, No. 17-1080-ag (2d Cir. Sept. 6, 2019).unpublished
    See 8 U.S.C. § 1252 (b)(4)(B); Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006).
  • Vanegas-Ramirez v. Holder, 768 F.3d 226 (2d Cir. 2014).published 2 cites
    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).
  • Jose Pretzantzin v. Holder, No. 11-2867-ag (2d Cir. Sept. 16, 2013).published
    See 8 U.S.C. § 1252 (b)(4)(B); Almeida-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir. 2006). 9 1 In Lopez-Mendoza, the Supreme Court held that a Fourth 2 Amendment violation does not, standing alone, justify the 3 suppression of evidenc…
  • Pretzantzin v. Holder, 736 F.3d 641 (2d Cir. 2013).published 2 cites
    In Lopez-Mendoza , the Supreme Court held that a Fourth Amendment violation does not, standing alone, justify the suppression of evidence in the course of a civil deportation proceeding, id. at 1050 , 104 S.Ct. 3479 ; this Court has since…
  • Jose Pretzantzin v. Holder, 725 F.3d 161 (2d Cir. 2013).published 2 cites
    In Lopez-Mendoza , the Supreme Court held that a Fourth Amendment violation does not, standing alone, justify the suppression of evidence in the course of a *166 civil deportation proceeding, id. at 1050 ; this Court has since interpreted…
  • Santos v. Holder, 486 F. App'x 918 (2d Cir. 2012).unpublished
    See 8 U.S.C. § 1252 (b)(4)(B); Almeidar-Amaral v. Gonzales, 461 F.3d 231, 233-34 (2d Cir.2006).
  • Ceesay v. Mukasey, 288 F. App'x 775 (2d Cir. 2008).unpublished
    We assume the parties’ familiarity with the facts and procedural history of this case, and the scope of the issues presented by this petition for review. “[W]e review the factual findings of the BIA for substantial evidence.” Almeida-Amara…
  • Hernandez Ojeda v. Garland, No. 19-2866 (2d Cir. May 3, 2022).unpublished
At page 236 Analyzing egregious violations justifying exclusion under fourth amendment8 citing cases[Wjhile the lack of any valid basis whatsoever for a seizure sets the stage for egregiousness, more is need *779 ed.1 citing court put it this way · 6 listed here
  • Puc-Ruiz v. Holder, 629 F.3d 771 (8th Cir. 2010).published 3 cites
    ([Wjhile the lack of any valid basis whatsoever for a seizure sets the stage for egregiousness, more is need *779 ed.)
  • Lopez-Rodriguez v. Holder, 560 F.3d 1098 (9th Cir. 2009).published 3 cites
    In Almeida-Amaral v. Gonzales, 461 F.3d 231, 236 (2d Cir.2006) (emphasis added), the Second Circuit defined "egregiousness" as based on "the characteristics and severity of the offending conduct. " A border patrol agent approached Almeida-…
  • Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008).published 3 cites
    (Lopez- Mendoza requires more than a violation to justify exclusion. It demands “egregiousness.” . . . Thus, the exclusion may well be proper where the seizure itself is gross or unreasonable in addition to being withou…)
  • Erick Yoc-Us v. Attorney Gen. United States, 932 F.3d 98 (3d Cir. 2019).published
  • Medley v. Garland, 71 F.4th 35 (2d Cir. 2023).published
  • Zuniga-Perez v. Sessions, 897 F.3d 114 (2d Cir. 2018).published
Retrieving the full opinion text from the archive…
Werquely Jeanini ALMEIDA-AMARAL, Petitioner,
v.
Alberto GONZALES, Attorney General of the United States, Respondent
Docket 04-5841-AG.
Court of Appeals for the Second Circuit.
Aug 24, 2006.
Published opinion
461 F.3d 231
2006 WL 2458634
Kai W. De Graaf, New York, N.Y., for Petitioner., Robert M. Spector, Assistant United States Attorney (William Nardini, Assistant United States Attorney, on the brief) for Kevin J. O’Connor, United States Attorney for the District of Connecticut, New Haven, Conn., for Respondent.
Cardamone, Calabresi, Pooler.
Cited by 68 opinions  |  Published
CALABRESI, Circuit Judge.

Petitioner Werquely Jeanini Almeida-Amaral (“Almeida-Amaral” or “petitioner”) seeks review of a decision by the Board of Immigration Appeals (“BIA”) dismissing his appeal from an Immigration Judge’s (“IJ”) decision that denied both his motion to suppress evidence for an alleged Fourth Amendment violation and his motion to terminate the removal proceedings against him. For the reasons stated below, we conclude that the BIA’s decision was not in error, and we therefore deny Almeida-Amaral’s petition.

BACKGROUND

Late on the night of January 26, 2003, Almeida-Amaral was approached by a uniformed border patrol agent just as he entered, by foot, the parking lot of a gas station adjacent to a restaurant along a highway in southern Texas. The agent instructed petitioner to stop and requested identification from him. In response, petitioner showed the officer his Brazilian passport, at which point he was arrested and taken into custody. At that time, Almeida-Amaral, who was then 17 years old, gave a statement to the arresting offi[*233] cer, which became the basis of an 1-213 form (Record of Deportable/Inadmissible Alien) maintained by the Immigration and Naturalization Service (“INS”). That form recorded that petitioner was “a citizen and national of Brazil by birth,” and was “illegally in the United States.” Thereafter, petitioner was served with a Warrant and Notice to Appear before an Immigration Judge (“IJ”) in Chicago, Illinois. After being released into the custody of his cousin, who lived in New York, Almeida-Amaral successfully moved for a change of venue from Chicago to New York.

Proceedings before an IJ in New York began on March 26, 2003. At that time, petitioner filed a motion to suppress evidence and terminate the removal proceedings forthwith. The motion sought to exclude the “statement taken [from] the [petitioner] and any and all other evidence procured in violation of the law used to commence these removal proceedings.” In support of this motion, Almei-da-Amaral made two arguments. First, he contended that his arrest was an illegal seizure under the Fourth Amendment of the Constitution. He also claimed that, because he was an unaccompanied minor when he spoke to the arresting agent in January 2003, his statements were inadmissible under INS regulations. Apart from the 1-213 form derived from petitioner’s statement, the record before the IJ included a copy of petitioner’s Brazilian passport and an affidavit from Al-meida-Amaral’s mother stating that petitioner was a native and citizen of Brazil. Petitioner did not admit to deportability nor did he assert any asylum-related claims.

On June 18, 2003, the IJ denied petitioner’s suppression motion as well as his motion to terminate the proceedings. Finding that Almeida-Amaral’s removability had been established by clear and convincing evidence, the IJ ordered petitioner deported.

On appeal to the BIA, petitioner asserted substantially the same arguments he raised before the IJ. On October 5, 2004, the BIA denied petitioner’s appeal by per curiam opinion. The BIA found that there was “no evidence that [petitioner] was under arrest when the officer asked to see his identification,” and therefore no Fourth Amendment violation. Moreover, the BIA maintained that an ordinary violation of the Fourth Amendment, even if established, would not justify suppression of evidence in a civil deportation hearing. Concluding that there was “nothing unreasonable or egregious about the officer’s encounter” with Almeida-Amaral, the BIA affirmed the IJ’s denial of petitioner’s motion to suppress.

The BIA also found unavailing petitioner’s alternate argument that he was an unaccompanied minor when he spoke with the arresting agent. After considering In Re Gomez-Gomez, 23 I. & N. Dec. 522 (BIA 2002), the BIA emphasized (1) that petitioner was 17 years old at the time of his arrest and (2) that his mother had confirmed the relevant facts contained in the 1-213 form.

Almeida-Amaral subsequently filed a timely petition to review the BIA’s decision. Petitioner argues to us that, because the uniformed agent was wearing a firearm and because he commanded petitioner to “Stop,” petitioner was seized without any cause whatsoever in clear violation of his constitutional rights. He also maintains that because he was an unaccompanied minor when he was arrested, his statement is inadmissible.

DISCUSSION

It is well-settled that we review the factual findings of the BIA for substantial evidence. See 8 U.S.C. § 1252(b)(4)(B);[*234] Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004). It is equally well-settled that, on appeal, issues of law are reviewed de novo. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

The government bears the burden of proving removability by clear and convincing evidence. Woodby v. INS, 385 U.S. 276, 286, 87 S.Ct. 483, 17 L.Ed.2d 362 (1966). But, “the INS must show only identity and alienage; the burden then shifts to the respondent to prove the time, place, and manner of his entry.” INS v. Lopez-Mendoza, 468 U.S. 1032, 1039, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984).

The question presented by this appeal therefore is whether the government’s evidence establishing that Almeida-Amaral is removable should have been excluded.

A Petitioner’s Fourth Amendment Challenge

In Lopez-Mendoza the Supreme Court held that a Fourth Amendment violation does not, by itself, justify suppression of evidence in the course of a civil deportation proceeding: “Important as it is to protect the Fourth Amendment rights of all persons, there is no convincing indication that application of the exclusionary rule in civil deportation proceedings will contribute materially to that end.” Lopez-Mendoza, 468 U.S. at 1046, 104 S.Ct. 3479. The Court qualified this ruling in two significant ways. First, it stated that its “conclusions concerning the exclusionary rule’s value might change, if there developed good reason to believe that Fourth Amendment violations by INS officers were widespread.” Id. at 1050, 104 S.Ct. 3479. And, second, it explained that its holding did not necessarily pertain to circumstances involving “egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained.” Id. at 1050-51,104 S.Ct. 3479.

’ Although we have referred to the Supreme Court’s decision in Lopez-Mendoza in several published decisions, see, e.g., United States v. Lopez, 445 F.3d 90, 99 (2d Cir.2006); Johnson v. Ashcroft, 378 F.3d 164, 172 n. 10 (2d Cir.2004); Montero v. INS, 124 F.3d 381, 386 (2d Cir.1997), we have not, to date, had an occasion to apply Lopez-Mendoza explicitly. The issue squarely presents itself in this case, and we now apply it as the law of the circuit.

In so doing, we pause to emphasize principles — all significant to the case before us — which clarify when an egregious violation would properly lead to the suppression of evidence in a civil proceeding. At the outset, it should be made clear that Lopez-Mendoza authorizes exclusion for violations that are egregious either because the violation “transgressed] notions of fundamental fairness,” or because the violation “undermine[d] the probative value of the evidence obtained.” Lopez-Mendoza, 468 U.S. at 1050-51, 104 S.Ct. 3479. The Court, seemingly inadvertently, used the conjunctive “and” instead of the disjunctive “or” to link these two possible grounds for deeming a violation egregious. As a result, it could be read as saying that proof of both prongs — i.e., evidence of fundamental unfairness and diminished probative value — was needed to justify exclusion. See id.

This, however, is plainly not what the Court intended. For, as the Ninth Circuit observed in Gonzalez-Rivera v. INS, 22 F.3d 1441 (9th Cir.1994), the Lopez-Mendoza Court justified its exception for egregious constitutional violations with examples in which evidence was suppressed solely on the basis of unfairness, that is, where the reliability of the evidence was in no way tarnished by the putative violation. See Gonzalez-Rivera, 22 F.3d at 1451 (“[A] fundamentally unfair Fourth Amend[*235] ment violation is considered egregious regardless of the probative value of the evidence obtained [under Lopez-Mendoza ]”). For example, in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), the evidence at issue — pills forcibly removed from a defendant’s stomach that were later used to establish possession— was indisputably reliable. The pills were nonetheless suppressed because of the objectionable method used by the police to obtain them. See id. at 172-74, 72 S.Ct. 205. Indeed, Rochin stated in no uncertain terms that reliability cannot be the sole touchstone of the Fourth Amendment. See id. at 173, 72 S.Ct. 205 (noting that coerced confessions are inadmissible in criminal trials “even though statements contained in them may be independently established as true” principally because they “offend the community’s sense of fair play and decency”). Similarly, the BIA decisions cited by the Court in Lopez-Mendoza did not focus on the reliability of the evidence. They concentrated, instead, on whether the admission of the contested evidence would be fundamentally fair. And, on that basis alone, the issue of suppression was decided. See, e.g., In re Garcia, 17 I. & N. Dec. 319, 320-21 (BIA 1980) (excluding statements obtained after agents repeatedly ignored detainee’s request for counsel); In re Toro, 17 I. & N. Dec. 340, 344 (BIA 1980) (admitting evidence on the ground that the suspicionless stop was made in good faith because its legality was unclear at the time it was made).

Thus, exclusion of evidence is appropriate under the rule of Lopez-Mendoza if record evidence established either (a) that an egregious violation that was fundamentally unfair had occurred, or (b) that the violation — regardless of its egregiousness or unfairness — undermined the reliability of the evidence in dispute. Nothing before us raises doubts about the veracity of the evidence obtained as a result of the seizure. Indeed, Almeida-Amaral’s mother submitted an affidavit confirming that petitioner was a native and citizen of Brazil. Hence, there is no merit to the contention that the evidence obtained as a result of the border agent’s action should be excluded because the putative wrongfulness of that action undermined the probative value of the evidence. Suppression is not warranted on this ground.

This leaves the question of whether the agent’s stop of Almeida-Amaral “transgress[ed] notions of fundamental fairness.” In this respect, there are two principles that — under the circumstances of this case — bear on whether petitioner suffered an egregious violation of his constitutional rights. [1] First, the egregiousness of a constitutional violation cannot be gauged solely on the basis of the validity (or invalidity) of the stop, but must also be based on the characteristics and severity of the offending conduct. Thus, if an individual is subjected to a seizure for no reason at all, that by itself may constitute an egregious violation, but only if the seizure is sufficiently severe. Second, even where the seizure is not especially severe, it may nevertheless qualify as an egregious violation if the stop was based on race (or some other grossly improper consideration). [2]

[*236] This second basis for possibly finding a seizure unconstitutionally egregious accords with the view taken by the Ninth Circuit in Gonzalez-Rivera, a. case in which a deportee had been pulled over by a roving border patrol agent and asked for identification. 22 F.3d at 1443. The agent there testified that he had stopped the deportee because he had not looked over at the patrol car, because he was blinking more than is normal, because his mouth appeared to be “dry,” and because the deportee was Hispanic. Id. at 1446. The Ninth Circuit found that the first three reasons did not provide articulable suspicion sufficient to justify the agent’s actions, and therefore that the deportee’s arrest was a violation of the Fourth Amendment. Id. at 1446-47; see also United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (permitting roving patrol agents to stop vehicles “only if they are aware of specific articulable facts, together with rational inferences from these facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country”). In addition, citing the IJ’s finding that the arresting agent had, in fact, relied solely on race to pull over the deportee’s car, the court applied Lopez-Mendoza and concluded — like the IJ who had been reversed by the BIA — that the stop was an “egregious constitutional violation requiring suppression of the evidence obtained as a result of the stop.” Gonzalez-Rivera, 22 F.3d at 1442-43.

The appeal before us resembles Gonzalez-Rivera insofar as the arresting agent in our case also had no valid reason or suspicion to justify his stop. The government stressed that Almeida-Amaral had been walking into the gas station parking lot at 2:11 a.m. with two other individuals. He was, the record states, either 35 or 85 miles from the Mexican border when he was questioned. These facts, like those asserted by the police in Gonzalez-Rivera, do not supply an articulable suspicion. This suspicionless stop — assuming still, for the reasons given in note 3, that it was “a stop” — was, therefore, an infringement of petitioner’s Fourth Amendment rights. Cf. Brignoni-Ponce, 422 U.S. at 884, 95 S.Ct. 2574.

But, Lopez-Mendoza requires more than a violation to justify exclusion. It demands “egregiousness.” And, applying our first principle, we believe that while the lack of any valid basis whatsoever for a seizure sets the stage for egregiousness, more is needed. Thus, exclusion may well be proper where the seizure itself is gross or unreasonable in addition to being without a plausible legal ground, e.g., when the initial illegal stop is particularly lengthy, there is a show or use of force, etc.

We have found nothing in the record of the instant case to support any such find[*237] ing. In fact, had the agent not yelled stop to Almeida-Amaral, the officer’s act of asking petitioner for identification would probably not have been a seizure at all. Under these circumstances, we conclude that the suspicionless seizure, albeit invalid, was not sufficiently severe to be deemed egregious under Lopez-Mendoza.

Even so, our second principle means that, were there evidence that the stop was based on race, the violation would be egregious, and the exclusionary rule would apply. That is the holding of Gonzalez-Rivera. Cf. United States v. Swindle, 407 F.3d 562, 569-70 (2d Cir.2005) (noting that race cannot create reasonable suspicion for a stop). But, unlike Gonzalez-Rivem, Al-meida-Amaral offers nothing other than his own intuition to show that race played a part in the arresting agent’s decision. Almeida-Amaral asserts, in an affidavit, that the agent stopped him because of his race. But he alleges no facts adequate to support that belief. And so, even taking the evidence most favorably to petitioner (as, at this stage, we must), we find the basic premise of Gonzalez-Rivera to be missing. Because of the absence of evidence that the stop was race-based, we conclude that Almeida-Amaral has not established that the Fourth Amendment violation was an egregious one.

Accordingly, we conclude that the BIA did not err in denying petitioner’s motion to suppress evidence of Almeida-Amaral’s deportability.

B. Unaccompanied Minor

Petitioner’s contention that the IJ and BIA could not rely on the contents of his 1-213 form because it was derived from statements taken from an unaccompanied minor is also without merit. Although aliens under 18 are designated “juveniles” and recognized as minors, see, e.g., 8 C.F.R. § 1236.3; 8 C.F.R. § 274a.2; 8 C.F.R. § 103.7, the law to which both parties cite states that 1-213 forms can be disqualified only if the unaccompanied minor is under the age of 16. 8 C.F.R. § 1240.48(b); [3] see Davila-Bardales v. INS, 27 F.3d 1, 3 (1st Cir.1994) (“An INS regulation says that ‘an IJ shall not accept an admission of deportability from an unrepresented respondent who is ... under age 16 years old and is not accompanied by a guardian, relative or friend.’ ” (emphasis added)); In re Amaya, 21 I. & N. Dec. 583, 586 (BIA 1996) (“In the case of an unaccompanied and unrepresented minor under the age of Id years, however, 8 C.F.R. § 242.16(b) requires that an Immigration Judge may not accept such a minor’s admission to a[] charge of deporta-bility because the minor is presumed to be incapable of determining whether a charge applies to him.” (emphasis added)).

Because petitioner was 17 years old at the time he was arrested, it was not improper under INS regulations to consider the statement, particularly because the veracity of the relevant facts was corroborated by his passport and an untraversed affidavit from petitioner’s mother. Cf. In re Gomez-Gomez, 23 I. & N. Dec. 522, 530 (BIA 2002) (“[I]n the absence of reason to doubt the reliability of the information contained in the Form 1-213, that document is presumed to be accurate and can constitute clear, unequivocal, and convincing evidence of deportability, even in a case involving an unrepresented minor respondent under the age of 16.”) (citing In re Ponce-Hernandez, 22 I. & N. Dec. 784 (BIA 1999)).

We have considered all of petitioner’s arguments and find them to be without[*238] merit. The petition for review is therefore Denied.

1

. In noting principles that shed light on when a seizure may be deemed egregious within the meaning of Lopez-Mendoza, we do not intend to give an exhaustive list of what might constitute an egregious violation of an individual’s rights. We emphasize these principles only because they are especially germane to the facts and circumstances of the case before us.

2

. The government seeks to insulate the arresting agent’s actions from both of these principles by arguing that there was no seizure under the Fourth Amendment since the officer only requested identification from Almei-[*236] da-Amaral. Petitioner asserts, however, that before he was asked for identification, the agent stepped out of his truck and yelled at him to stop. Because there has been no fact finding in this case, for the purposes of this appeal, we are bound to accept petitioner's statements as true. And, while a simple request for identification may not, without more, constitute a seizure, see Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004), a yelled command from a border agent might well not make "a reasonable person ... feel free to decline the officer[’s] request[ ] or otherwise terminate the encounter.” United States v. Drayton, 536 U.S. 194, 202, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002). Because there is a constitutional difference between approaching an individual to pose a question and shouting stop, we conclude — as far as this stage of the proceeding is concerned — that Almeida-Amaral was seized for the purposes of his Fourth Amendment challenge. Cf. California v. Hodari D., 499 U.S. 621, 627, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991); Brown v. City of Oneonta, 221 F.3d 329, 340 (2d Cir.2000).

3

. This regulation was originally designated 8 C.F.R. § 242.16(b). In 1997 it was redesig-nated 8 C.F.R § 240.48, and then in 2003 it received its current designation, 8 C.F.R. 1240.48(b).