U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Los Angeles, CA 90014

Name: LEIVA JIMENEZ, FRANCISCO

A 094-375-896

Date of this notice: 5/14/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DonrtL Ca.NU
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Pauley, Roger
O'Herron, Margaret M
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Francisco Leiva-Jimenez, A094 375 896 (BIA May 14, 2015)

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Weisz, Vera A., Esq.

Weisz Immigration Law Group
510 W. 6th St, Suite 200

U.S. Department of Justice

Decision of the Board of Immigration Appeals

faecutive Office for Immigration Review

Falls Church, Virginia 20530

File:

A094 375 896 - Los Angeles, CA

Date:

llAY J .4 Z019

In re: FRANCISCO LEIVA-JIMENEZ

APPEAL
ON BEHALF OF RESPONDENT:

Vera A. Weisz, Esquire

CHARGE:
Notice:

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. l182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Termination

The respondent appeals from the Immigration Judge's July 8, 2013, decision finding him
removable as charged and ordering him deported from the United States.

The record will be

remanded for further proceedings consistent with this decision.

We review findings of fact for clear error. 8 C.F.R. 1003.l(d)(3)(i). We review questions
of law, discretion, or judgment, and all other issues de novo. 8 C.F.R. 1003.l(d)(3)(ii);

see also Ridore v. Holder, 696 F.3d

907 (9th Cir. 2012).

The respondent filed a motion to suppress evidence and to terminate proceedings with the
Immigration Judge, arguing that the Department of Homeland Security's (DHS) evidence was
obtained in violation of the Fourth Amendment to the U.S. Constitution and federal regulations.
The respondent's motion was supported by his 6-page declaration ("Declaration").
The
Department of Homeland Security (DHS) filed a brief opposing the respondent's motion,
attaching two I-213 forms. One 1-213 relates to the respondent. The other relates to Mr. Rojas
Torres, the person who was the target of the November 14, 2007, search during which the
respondent was arrested.

See DHS Response Brief to Motion, Tabs A and B.

The Immigration Judge found that even if the respondent was credible, he did not establish a
prima facie case for suppression of evidence arising from and related to his November 14, 2007,
arrest, either on the basis of a constitutional or regulatory violation. The Immigration Judge
concluded that the respondent was seized by Immigration and Customs Enforcement (ICE)
agents during the pre-dawn house raid on November 14, 2007, but that the agent's search and
seizure of the respondent was justified. The Immigration Judge further found that even if the
agent's actions were not justified, they were not egregious violations of the Fourth Amendment

(l.J. at 5-8). The Immigration Judge relied on the contents of the Form I-213 to find that the
respondent is a Peruvian national who entered the United States without inspection. He found
the respondent inadmissible as charged. As the respondent did not seek relief from removal, the
Immigration Judge ordered him removed from the United States to Peru.

Cite as: Francisco Leiva-Jimenez, A094 375 896 (BIA May 14, 2015)

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IN REMOVAL PROCEEDINGS

.. ,.

Aq94 375. 896

On appeal, the respondent makes three arguments. First, he argues that he provided credible
testimony. Second, he maintains that he established a prima facie case for the suppression of
evidence based on egregious violations of the Fourth Amendment by ICE agents who conducted
a pre-dawn raid on his home. Third, he asserts that he established a prima facie case for the
suppression of evidence based on violations of federal regulations at 8 C.F.R. 287.8(b), (c)

We will reverse the Immigration Judge's clearly erroneous factual findings and remand the
record for further fact-finding and the issuance of a new decision. There are a number of factual
errors in this case that are directly relevant to the respondent's Fourth Amendment claim. First,
the respondent's testimony and declaration are not inconsistent regarding whether he was
sleeping or on the phone when ICE agents arrived {Tr. at

68-69, 77-78; Declaration 8) and

whether the ICE agent said that he was under arrest before or after the respondent gave him his
passport (Tr. at 74, 89-90, 92; Declaration 11). The respondent was inconsistent as to whether
the officer used a screwdriver (Declaration

4) or his gun (Tr. at 73, 94-95) to open his suitcase,

but this inconsistency alone is insufficient to support an adverse credibility determination where
the respondent's testimony and declaration were otherwise consistent. There is no dispute that
the ICE agent was armed, a significant fact in this context {Tr. at 71; Declaration 10).
Second, the Immigration Judge found that the respondent "alleges that the ICE agents entered
the residence with either a warrant or consent" (l.J. at

7).

But this finding is not an accurate

reflection of the record. The respondent indicated that ICE agents entered to find Mr. Rojas
Torres, but not that they had a warrant {Tr. at

76; Declaration 8). Regarding consent, the most

the respondent indicated on cross-examination was that his housemates blamed one of the
residents for opening the door {Tr. at

83-84; Declaration ljf 6-8).

Third, the Immigration Judge concludes that the agents may conduct a "protective sweep" of
the house, but he did not make factual findings that would support such a conclusion.

Maryland v. Buie, 494 U.S. 325, 327 (1990) (holding that,

See

in conjunction with an in-home arrest,

officers may conduct a protective sweep of a residence). The record indicates that the ICE agent
went beyond a sweep to eliminate hidden dangers when he requested and searched for the
respondent's identity documents.
Moreover, neither of the Forms

1-213 contradicts the respondent's account of the events and

the DHS counsel stated that pursuant to agency policy the agents would not be presented to
testify (Tr. at 113-14). See DHS Response Brief to Motion, Tabs A and B. Based on the
foregoing, we will remand the record to the Immigration Judge for further fact-finding and the
issuance of a new decision.
ORDER:
The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

Board Member Roger A.

auley respectfully dissents and would affirm the

Immigration Judge's concl sion that,

even assuming the respondent was credible,

he failed to establish an egregious violation of his rights to justify

suppression of his alienage.

Cite as: Francisco Leiva-Jimenez, A094 375 896 (BIA May 14, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

and (f) by the ICE agents.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

In the Matter of:

LEIVA JIMENEZ,
Francisco

Respondent
-

IN REMOVAL PROCEEDINGS

>

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA)

CHARGE:

alien present in the United States without admission or parole.

APPLICATIONS:

Motion to Suppress Evidence

Motion to Terminate Proceedings

ON BEHALF OF RESPONDENT
Vera A. Weisz, Esquire

ON BEHALF OF THE DEPARTMENT

991 West Pico Blvd, Suite 1580

Assistant Chief Counsel

Los Angeles, California 99035

U.S. Department of Homeland Security

Sirin Ozen Hallberg, Esquire

606 South Olive Street, Eighth Floor

Los Angeles, California 90014
DECISION AND ORDERS OF THE IMMIGRATION JUDGE
I.

Procedural History

Francisco Leiva Jimenez (Respondent) is a native and citizen of Peru. On November 14,
2007, the United States Department of Homeland Security (Department) personally served
Respondent with a Notice to Appear (NTA). Exh. IA. Therein, the Department alleged that
Respondent entered the United States at or near Nogales, Arizona, on or about March 13, 1997,
without admission or parole. Id. Accordingly, the Department charged Respondent as
inadmissible pursuant to section 212(a)(6}(A)(i) of the INA. Id. Proceedings commenced and
jurisdiction vested when the Department filed Respondent's NTA with the Immigration Court on
November 26, 2007. See 8 C.F.R. 1003.14(a). Following his release from custody,
Respondent was granted a change of venue from the Florence Immigration Court to the Los
Angeles Im.migration Court.
On October 15, 2008, Respondent appeared before this Court and, through counsel,
denied the allegations and the charge contained in the NTA. On August 27, 2009, the
I

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)
)
)
)
)
)
)
)

A 094 375 896

File No.:

Department filed Respondent's Form 1-213, Record of Deportable/Inadmissible Alien (Form 1213), in support of its allegations of alienage. Exh. 2A.
Respondent now moves to suppress and exclude the Form I-213, all documentary
evidence, and testimony pertaining to his alienage, including the date, place, time, and manner of

unlawful search, seizure, arrest, and interrogation that occurred on November 14, 2007.
Respondent also seeks to terminate the proceedings based on violations of the regulations set
forth at 8 C.F.R. 287.3(c) and 287.8(c).
On June 11, 2013,, the Court held a hearing on the motion to suppress and on the charge
of removability, during which the Court took testimony from Respondent.
II.
A.

Summary of Evidence Submitted

Evidence Submitted on Behalf of Respondent

1.

Respondent's Declaration

On November 14, 2007, at approximately 5:00 AM, three agents from the Department's
Immigration and Customs Enforcement (ICE) division entered Respondent's residence, located
at 57 I 0 Norris Road, Bakersfield, California (Norris Road residence). The agents entered the
residence in order to arrest Mr. Albino Rojas-Torres, one of Respondent's housemates.
Respondent did not give the ICE agents permission to enter the residence. However, he believes
that an unidentified housemate opened the back door for the agents.
Respondent was sleeping in his bedroom when an ICE agent ordered Respondent to open
his bedroom door. After Respondent opened his door, the ICE agent entered Respondent's
bedroom, ordered Respondent to hold his hands above his head, and searched the room. The
ICE agent then demanded Respondent's immigration documents. When Respondent informed
the agent that his passport was located in a locked suitcase, the agent forced the suitcase open
with a screwdriver. Respondent retrieved his passport from the suitcase and gave it to the ICE
agent.
The ICE agent ordered Respondent to dress and stand in the living room with
Respondent's housemates. The agents then tied the housemates together with a "cord " and led
them into a vehicle, which later transported them to the Bakersfield detention facility. At the
detention facility, agents questioned Respondent about his name, place of birth, nationality, and
immigration status. He was not advised of his rights, or given the opportunity to consult an
attorney during this time.

$.wi&Zih

fil_

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last entry; city and country of birth; status at entry; length of time in the United States; and
nationality. Respondent contends that such evidence was obtained from him as a result of an

2.

Respondent's Testimony

The following is a summary of Respondent's testimony before the Court on June 11,
2013.

Respondent testified that, on November 14, 2007 at 5:00 AM, ICE agents entered his
Respondent believes that one of his housemates opened the door and allowed the agents to enter
the residence.
Respondent was in his bedroom, talking on the phone, when he heard noises and saw
lights outside of the house. An ICE agent then knocked on Respondent's bedroom door, which
was locked from the inside, and identified himself. Respondent opened the door and the armed
agent entered and searched Respondent's room, demanding that Respondent present his
immigration documents. When further questioned by the agent, Respondent stated that he did
not have legal status in the United States. The ICE agent then forced Respondent's locked
suitcase open with his gun so that Respondent could retrieve his Peruvian passport. Respondent
first testified that the agent informed him that he was under arrest before examining the passport.
However, Respondent then testified that the agent stated that Respondent was under arrest after
the agent saw the passport.
Respondent testified that the ICE agent subsequently demanded that Respondent dress
and stand with his housemates in the living room. After waiting in the living room for twenty
minutes, the agents placed handcuffs on Respondent and his housemates. The agents then
transported Respondent and his housemates to a detention center in Bakersfield, where additional
ICE agents questioned him. Respondent did not believe that he was free to refrain from
answering the agents' questions during this time.
B.

Department's Evidence

The Department submitted a Form 1-213 for Respondent to prove the allegations in the
NTA. Exh. 2A. The Form I-213 indicates Respondent's citizenship, date of birth, and date and
place of entry, apparently derived from an interview with Respondent on the date of his arrest,
November 14, 2007. Id. The Form 1-213 also indicates that the Bakersfield Fugitive Operations
Team arrested Respondent at the Norris Road address, while locating targeted fugitive Mr.
Rojas-Torres. Id.
The Department also submitted a Form 1-213 for Mr. Rojas-Torres. Exh. 4A. This
document indicates that Mr. Rojas-Torres was arrested by the Bakersfield Fugitive Operations
Team at the Norris Road address, and that he was ordered removed by an immigration judge in
San Francisco, California, on September 15, 1999. Id.
The Department also submitted a "Memorandum In Support of a Custody
Redetermination Hearing" for Respondent, which was originally filed in the Arizona
Immigration Court. Exh. 3A ("Respondent Leiva was born . . . in Peru. "). However, the Court
3

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Norris Road residence in order to arrest Mr. Rojas-Torres, one of Respondent's housemates.

ruled that a memorandum signed by a respondent's attorney is not admissible evidence. See INS
v. Phinpathya, 464 U.S. 183, 187, n.6 (1984) (declining to rely on counsel's unsupported
assertions in a brief to prove physical presence); Matter of S-M, 22 I&N Dec. 49, 51 (BIA 1980).
The Department did not produce any of the arresting agents as witnesses.
Law and Analysis

Immigration proceedings operate with relaxed rules of evidence. Espinoza v. INS,

45 F.3d 308, 310 (9th Cir. 1995); Matter ofWadud, 19 l&N Dec. 182, 188 (BIA 1984).
However, even under the relaxed rules, not every piece of evidence is admissible. Rather, to be
admissible, documentary evidence must be probative and its use fundamentally fair, so as not to
deprive an alien of due process of law under the Fifth Amendment. Matter of Velasquez, 25
l&N Dec. 680, 683 (BIA 2012); Cinapian v. Holder, 567 F.3d 1067, 1074 (9th Cir. 2009)
(holding that the due process clause of the Fifth Amendment applies to removal proceedings and
provides aliens the right to a fair hearing).
In a claim that evidence was obtained in violation of due process, the respondent bears

the burden of establishing a primafacie case of illegality before the burden shifts to the
Department to justify the manner in which it obtained its evidence. Matter of Burgos, 15 l&N
Dec. 278, 279 (BIA 1975). Suppression may be warranted for either a constitutional or
regulatory violation. See Wong Sun v. United States, 371 U.S. 471, 488 (1963) (holding that
suppression may be warranted for a constitutional violation); Matter of Garcia-Flores, 17 l&N
Dec. 325, 329 (BIA 1980) (holding the same for a regulatory violation).
Where a party wishes to challenge the admissibility of a document allegedly obtained in
violation of his due process rights, the offering of an affidavit that describes how the document
or the information therein was obtained is not alone sufficient to sustain the burden.of
establishing aprimafacie case. Matter of Barcenas, 19 I&N Dec. 609, 611 (BIA 1988). If the
affidavit is such that the facts alleged, if true, could support a basis for excluding the evidence in
question, then the claim must also be supported by testimony before the burden shifts to the
Department to justify the way in which the evidence was obtained. Id.
A.

Credibility

The Court finds that Respondent's testimony and declaration contained multiple
inconsistencies that call his credibility into question.
The Court finds that Respondent's declaration was inconsistent with his in-court
testimony on several material points. First, Respondent stated in his declaration that he was
sleeping when ICE agents entered his house. Exh. 5A. However, he then testified in Court that
he was speaking on the phone, rather than sleeping, when the ICE agents arrived. In addition,
Respondent's declaration indicates that the ICE agent opened Respondent's locked suitcase with
a screwdriver in order to retrieve Respondent's passport. Id. In contrast, he testified that the ICE
4

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III.

agent broke the lock on his suitcase with the agent's gun. These significant inconsistencies
reflect negatively on Respondent's credibility.
In addition, Respondent's testimony contained a key internal inconsistency. Namely,

under arrest. Because the manner in which the ICE agent arrested Respondent is central to his
claim, the Court finds that this inconsistency seriously undermines Respondent's credibility as a
witness.
Based on these varying accounts and material inconsistencies, the Court finds that
Respondent's testimony is not credible. Further, Respondent's declaration alone is not sufficient
to sustain his burden of establishing aprima facie case of illegality. See Burgos, 15 I&N Dec. at
279. Accordingly the Court finds that Respondent has failed to meet his burden of
demonstrating any illegality in the agents' actions on November 14, 2007.
Even if his testimony was credible, however, the Court determines that Respondent has
failed to establish a prima facie case for suppression on either a constitutional or regulatory
basis. See Wong Sun, 371 U.S. at 488; Garcia-Flores, 17 I&N Dec. at 329.
B.

Suppression: Constitutional Analysis

Respondent claims that the information in the Form 1-213 was illegally obtained through
a violation of his Fourth Amendment rights. The Fourth Amendment guarantees "the right of the
people to be secure in their persons, houses, papers and effects, against unreasonable searches
and seizures. " U.S. CONST. amend. IV. As a general rule, the Fourth Amendment exclusionary
rule requiring the suppression of unlawfully obtained evidence does not apply in removal
proceedings. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1033 (1984); Orhorhaghe v. INS, 38
F.3d 488, 492-93 (9th Cir. 1994). However, the exclusionary rule does apply in immigration
cases involving "egregious violations" of the Fourth Amendment. Orhorhaghe, 38 F.3d at 49293; see also Gonzalez-Rivera v. INS, 22 F.3d 1441, 1449 (9th Cir. 1994). Thus, in some
circumstances, evidence obtained through such egregious violations may be suppressed as the
fruit of an unlawful search or seizure. See Wong Sun, 371 U. S. at 488.
Respondent bears the burden of proof to establish a prima facie case of illegality before
the burden shifts to the Department to justify the manner in which it obtained its evidence. See
Burgos, 15 l&N Dec. at 279. Based on the evidence before it, the Court must then undergo a
three-step analysis to determine whether a motion to suppress, based upon an illegal search and
seizure, should be granted. See Orhorhaghe, 38 F.3d at 492-504. First, the Court must
determine whether the encounter between the immigration agent and the individual constitutes a
search and/or an arr est or seizure. Id. at 492. If so, then the Court must determine whether or
not the search or seizure was justified. Id. at 496. The third step in the Court's analysis is to

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Respondent first testified that the ICE agent informed him that he was under arrest before the
ICE agent examined Respondent's Peruvian passport. However, Respondent next testified that
the ICE agent first looked at Respondent's passport, and then informed Respondent that he was

determine whether the violation of the individual's Fourth Amendment rights was sufficiently
1
egregious to warrant application of the exclusionary rule. Id. at 503.

Orhorhaghe, 38 F.3d at 496, 503.

1.

Search and Seizure

The test for whether a seizure of person occurred is if, "a reasonable person would
believe that he was not free to leave." United States v. Mendenhall, 446 U. S. 544, 553-54
(1980). The Ninth Circuit has articulated several factors to consider in this determination: (a)
whether the individual was faced with the presence of several officers; (b) whether the
individual's physical access to an exit was limited; ( c) whether the officer displayed or otherwise
referenced his weapon; ( d) whether the encounter occurred in a private, non-public setting; (e)
whether the officers acted in an authoritative manner; (f) whether the individual was informed of
his rights or warned that he had the freedom to leave or decline to answer the officer's questions;
and (g) whether the individual was provided misinformation or led to believe that he was not free
to leave. Orhorhaghe, 38 F.3d at 494-96.
Here, Respondent testified and asserted in his affidavit that an ICE agent encountered
him in his bedroom, where the agent briefly detained and questioned him regarding his
identifying information. Exh. SA. Respondent further testified that, during the course of this
questioning, he informed the ICE agent that he was not legally present in the United States. The
agent subsequently ordered Respondent to dress and stand with his housemates in the living
room of the residence, at which time additional agents handcuffed and transported Respondent to
a detention facility. Id. Based on these allegations, the Court finds that Respondent could
reasonably believe that he ''was not free to leave" at the moment the ICE agent ordered him to
stand in the living room and handcuffed him; Respondent was faced with the presence of several
agents, his ability to exit the residence was restricted, and his freedom of movement was
restrained with handcuffs. See Mendenhall. 446 U.S. at 553-54; see also Orhorhaghe, 38 F.3d at
494-96. Accordingly, the Courts finds that a seizure of Respondent occurred at this time.
2.

Justification

The Court must next determine whether the ICE agents' search and seizure of
Respondent was justified under the Fourth Amendment.

Additionally, the Department argues that the evidence it seeks to admit is not suppressible because it is evidence of

"identity." See Lopez-Mendoza, 468 U.S. at 1039. However, evidence of alienage is separate from the "identity" of
the respondent. See Matter of Sandoval, 17 l&N Dec. 79, 79 (BIA 1979) (noting that identity, as distinguishedfrom

alienage, is not suppressible).

Therefore, the Department's reliance on Lopez-Mendoza in support of admission of

the evidence as identity evidence is misplaced.

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Even assuming that his testimony was consistent and credible, Respondent has failed to
establish that his seizure was unjustified and that any alleged violation of his Fourth Amendment
rights was sufficiently egregious to warrant application of the exclusionary rule. See

Searches that occur in a home without a warrant are considered presumptively

unreasonable. Orhorhaghe, 38 F.3d at n.14; Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1016
(9th Cir. 2008) (citing Payton v. New York, 445 U.S. 573 (1980)). However, this presumption
may be overcome if an occupant of the residence consents. United States v. Matlock, 415 U.S.
164, 169 (1974). Furthermore,
"the voluntary consent of any joint occupant of a residence to
search the premises jointly occupied is valid against the co-occupant." Id.

}ff

arrest warrant for Respondent. Exh. SA. However, Respondent concedes that the agents
possibly entered the residence with a warrant for Mr. Rojas-Torres's arrest. Alternatively,
Respondent testified that an unknown person may have consented to the agents' entry into the
residence. See Matlock, 415 U.S. at 169. Because Respondent alleges that the ICE agents
entered the residence with either a warr ant or consent, the Court finds that the ICE agents did not
violate the Fourth Amendment when they entered the premises.
The Supreme Court has held that, in conjunction with an in-home arrest, officers may
conduct a protective sweep of a residence. Maryland v. Buie, 494 U.S. 325, 334 (1990). In
addition, an ICE officer may briefly detain a person for questioning if the officer has a
reasonable suspicion that the person is in the United States illegally. 8 C.F.R. 287.8(b)(2); see
also Matter of Marcelo Flores Perez, 2012 WL 1495535, *1 (Apr. 5, 2012) (unpublished).
Information obtained from this questioning may then provide the basis for the arrest of the alien.
8 C.F.R. 287.8(b)(3).
Here, Respondent alleges that his arrest was not justified because the ICE agents did not
first obtain an arrest warrant for him. However, the Court finds that the ICE agents were
justified in conducting a protective sweep of Respondent's residence in conjunction with the
arrest of Mr. Rojas-Torres. See Buie, 494 U.S. at 334. In addition, upon encountering
Respondent during this sweep, the ICE agents justifiably detained him for questioning regarding
alienage. See 8 C.F.R. 287.8(b)(2). The Court finds that the ICE agents acted reasonably
when they asked for Respondent's identifying information because Respondent cohabitated with
Mr. Rojas-Torres, who had been ordered removed from the United States. See Marcelo Flores
Perez, 2012 WL 1495535. When Respondent then admitted that he was illegally present in the
United States and displayed his Peruvian passport during the course of the questioning, the ICE
agents had ajustifiable basis for Respondent's arrest. See 8 C.F.R. 287.8(b)(3). Accordingly,
the Court finds that the ICE agents' seizure of Respondent did not constitute a Fourth
Amendment violation.
3.

Egregious Violation

Even if the agents were not justified in their search and seizure relating to Respondent on
November 14, 2007, the Court finds that the ICE agents' actions did not constitute egregious
violations of the Fourth Amendment. A Fourth Amendment violation is "egregious" if
"evidence is obtained by deliberate violations of the [F]ourth [A]mendment, or by conduct a
reasonable officer should [have known] is in violation of the Constitution." Lopez-Rodriguez,
7

LZJ(IJlL-0.G:Wtl

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Here, Respondent asserts that the agents were not justified in entering his residence
because Respondent did not individually consent to their entry and the officers did not possess an

(9th Cir. 2008).

Here, Respondent argues that his arrest and detention constituted an egregious violation
of the Fourth Amendment because the ICE agents did not obtain a warrant for his arrest.
However, unlike in Orhorhage and Mukasey, ICE agents entered Respondent's home with either
an arrest warrant for Mr. Rojas-Torres or the consent of an unknown resident of the home. Exh.
SA. In addition, Respondent testified that he informed the ICE agent that he was unlawfully in
the United States, and showed the agent his Peruvian passport, before the ICE agents handcuffed
and transported him to the detention facility. Id. Based on these facts, the Court finds that
Respondent has not met his burden of establishing that the agents deliberately violated the Fourth
Amendment, or should have known that they were violating it, by conducting the arrest. See
Orhorhaghe, 38 F.3d at 497; see also Lopez-Rodriguez, 536 F.3d at 1018. Accordingly, the
Court finds that the agents' actions do not constitute an egregious violation of the Fourth
Amendment.
4.

Conclusion

In sum, the Fourth Amendment exclusionary rule, to the extent that it may apply in
removal proceedings, see Lopez-Mendoza, 468 U. S. at 1050-51, is not implicated in this matter,
as the Court finds that Respondent did not meet his burden of showing that the ICE agents
committed egregious violations of the Fourth Amendment. See Orhorhaghe, 38 F.3d at 493.
Moreover, Respondent does not assert that the information in the Form 1-213 is not his or that it
is incorrect. See Lopez-Chavez v. INS, 259 F.3d 1176, 1184 (9th Cir. 2001) (stating that
generally a Form I-213 is admissible to prove alienage except when an alien produces probative
evidence contradicting anything material on the 1-213 that would cast doubt upon its reliability).
Accordingly, the Court will not exclude the information contained in Respondent's Form 1-213
based on alleged Fourth Amendment violations.
C.

Suppression: Regulatory Analysis

Respondent also contends that the Court should suppress evidence in the record and
terminate proceedings because the Department violated 8 C.F.R. 287.3(c) and 287.8(c) during
the November 14, 2007 arrest of Respondent at the Norris Road address. See Garcia-Flores, 17
I&N at 325 (establishing test for suppressing evidence obtained in violation of federal
regulations; respondents must demonstrate (1) that the violated regulation was promulgated to
serve "a purpose of benefit to the alien," and (2) the violation "prejudiced interests of the alien
which were protected by the regulation."). For the following reasons, the Court finds that the
ICE agents did not violate the specified regulations.
8

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536 F.3d at 1018 (quoting Gonzalez-Rivera, 22 F.3d at 1449). For example, in Orhorhage, the
Ninth Circuit found that the warrantless entry into the respondent's apartment without securing
his voluntary consent, and based solely on the fact that he had a Nigerian sounding name, was an
egregious Fourth Amendment violation. 38 F.3d at 504. Similarly, in Lopez-Rodriguez v.
Mukasey, the Ninth Circuit found an egregious Fourth Amendment violation occurred where
immigration officers entered a private residence without a warrant or consent. 536 F.3d 1012

/I

1.

Violation of 8 C.F.R. 287.3(c)

Respondent asserts that proceedings should be terminated because the Department

violated 8 C.F.R. 287.3(c) when it failed to advise him of his procedural rights. This regulation

NTA with the Immigration Court; thus, the Department's obligation to inform a respondent of
his procedural rights does not attach until that point. Samayoa-Martinez v. Holder, 558 F.3d
897, 901-02 (9th Cir. 2009). The Court finds that Respondent was properly advised of his rights
at the time the Department served him with an NTA, which contained written notification of his
procedural rights. Because the Department served Respondent with the NTA before filing the
NTA with the Court, the Court finds that the Department did not violate 8 C.F.R. 287.3(c). Id.
2.

Violation of 8 C.F.R. 287.8(c)(2l

Respondent next argues that the ICE agents violated 8 C.F.R. 287.8(c)(2)(ii)
and (vii) by arresting him without a warrant and creating a coercive environment. The
regulation states, in pertinent part:
(c) Conduct of arrests.
(2) General Procedures.
(ii) A warrant of arrest shall be obtained except when the
designated officer has reason to believe that the person is
likely to escape before a warrant can be obtained.
(vii) The use of threats, coercion, or physical abuse by the
designated immigration officer to induce a suspect to waive
his or her rights or to make a statement is prohibited.
8 C.F.R. 287.8(c)(2)(ii), (vii). In an unpublished decision, the Board of Immigration Appeals
(Board) recently found that an ICE agent has a presumptive reason to believe that an alien is
likely to escape at the moment that the alien admits that he is unlawfully in the United States.
Matter of Linares-Tlazola, 2012 WL 527504 (Jan. 30, 2012).
Respondent asserts that the agents who arrested him had a warrant for a different
individual, Mr. Rojas-Torres, and that no warrant was obtained for Respondent's arrest. He also
asserts that he was not likely to escape before a warrant could be obtained. However, pursuant to
the Board's reasoning, the Court finds that the ICE agents had reason to believe that Respondent
was likely to escape at the moment that Respondent admitted to his unlawful status. See
Linares-Tlazola, 2012 WL 527504. Therefore, the Court finds that Respondent has failed to
demonstrate that he was arrested in violation of 8 C.F.R. 287.S(c)(ii). See also 8 C.F.R.
287.8(b)(2) (stating that an ICE officer "may briefly detain a person for questioning if the
officer has a reasonable suspicion that the person is in the United States illegally").
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requires that the Department inform aliens who have been "arrested without warrant and placed
in formal proceedings" of their procedural rights. 8 C.F.R. 287.3(c). However, the Ninth
Circuit has held that formal removal proceedings are not initiated until the Department files the

Furthermore, Respondent has failed to demonstrate that ICE agents violated section
287.8(c)(vii) by using threats, coercion, or physical abuse. Such a violation would require
"physical abuse, hours of interrogation, denial of food or drink, threats or promises, or
interference with any attempt by the respondent to exercise his rights. " See Matter of Ramirez
Sanchez, 17 l&N Dec. 503, 506 (BIA 1980). Here, Respondent asserts in his declaration that the

immigration officer's more severe and intentional use of coercion. Additionally, the Court finds
that the handcuffing of Respondent was reasonable under these circumstances. See Mena, 544
U.S. at 98 (holding that because a warrant existed to search the premises and the alien was an
occupant of the premises at the time of the search, her detention in handcuffs for the duration of
the search was reasonable). Accordingly, the Court finds that the agents' actions did not violate
8 C.F.R. 287.8(c)(vii) in Respondent's case.
For the reasons stated above, the Court finds that the ICE agents had reason to believe
that Respondent was

an

alien illegally in the United States, and thus, they were permitted to

arrest him. See 8 C.F.R. 287.8(c)(2)(i). Moreover, the Court finds that an arrest for an
administrative violation may be made without a warrant, such as in this matter.

See 8 C.F.R.

287.8(c)(2)(ii), (iv).
D.

Conclusion

In sum, Respondent failed to establish a prima facie case for suppression of evidence
arising from and related to his arrest on November 14, 2007, either on the basis of a
constitutional violation or a regulatory violation. Because the Form 1-213 is not suppressible, the
Court may rely on it to determine Respondent's removability. Based on the contents of the Form
1-213, specifically that Respondent is a Peruvian national who entered the United States without
inspection, the Court sustains the charge of removability. At a hearing on April 5, 2012,
Respondent's attorney indicated that, should the Court deny the motion to suppress and
terminate, Respondent would not seek any form of relief from removal.
Accordingly, the following orders will be entered:

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agents yelled and threatened him. However, Respondent did not indicate that the ICE agents
used excessive physical force or intimidation. Id. While Respondent may have been
understandably fearful when the ICE agents entered his bedroom, the regulation contemplates an

'

.
.

ORDERS
IT IS HEREBY ORDERED that Respondent's Motion to Suppress be DENIED.
IT IS FURTHER ORDERED that Respondent's Motion to Terminate be DENIED.

DATE:

'""?- --

/7
Immigration Judge

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal
is due at the Board on or before thirty calendar days from the third calendar day after this

decision is mailed to Respondent.

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IT IS FURTHER ORDERED that Respondent be REMOVED on the charge contained

in the NTA to PERU.