22 F.3d 1441 (9th Cir. 1994), 92-70492, Gonzalez-Rivera v. I.N.S.

Docket Nº:92-70492.
Citation:22 F.3d 1441
Case Date:April 28, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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22 F.3d 1441 (9th Cir. 1994)

Mario GONZALEZ-RIVERA, Petitioner,



No. 92-70492.

United States Court of Appeals, Ninth Circuit

April 28, 1994

Argued and Submitted Dec. 10, 1993.

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Raul M. Montes, Armando M. Montes and Gilbert M. Montes, Montes, Montes & Montes, San Diego, CA, for petitioner.

David J. Kline, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition for Review of an Order of The Board of Immigration Appeals.

Before: CHOY, TANG, and D.W. NELSON, Circuit Judges.

Opinion by Judge D.W. NELSON; Concurrence by Senior Judge TANG, Partial Dissent by Judge CHOY.

D.W. NELSON, Circuit Judge:


Mario Gonzalez-Rivera (Gonzalez) petitions this Court to review the Board of Immigration Appeal's (BIA) reversal of the decision by the Immigration Judge (IJ). The IJ found that the Border Patrol officers had stopped Gonzalez based solely on his Hispanic appearance in violation of the Fourth Amendment. The IJ further concluded that stopping Gonzalez solely because of his Hispanic appearance was a bad faith Fourth Amendment violation and consequently an egregious constitutional violation requiring suppression of the evidence obtained as a result of the stop. In reversing the IJ, the BIA ruled that the stop was based on a number of factors rather than solely on Gonzalez' Hispanic appearance, and, on this basis,

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concluded that no Fourth Amendment violation had taken place.

We hold that the BIA erred in ruling that the stop was based on a number of legitimate factors. We conclude that the stop, which resulted solely from Gonzalez' Hispanic appearance, constituted a bad faith and egregious violation of the Fourth Amendment. Accordingly, we reinstate the IJ's decision to grant the motion to suppress and remand for further proceedings consistent with this opinion.


On January 17, 1988, Gonzalez was riding as a passenger with his father in a car on his way to work, traveling northbound on Interstate Highway 805, past San Diego. Both men were wearing uniforms displaying the logo of the "International House of Pancakes." Border Patrol Officer Salvador Wilson and another officer also were traveling northbound on Highway 805 on a roving patrol. The officers stopped the car and discovered that, while Gonzalez' father was in possession of documents permitting him to reside legally in the United States, Gonzalez himself could not produce similar documentation. The officers arrested Gonzalez and subsequently learned that he had entered the United States without inspection. Gonzalez, however, did not sign any documents nor did he make any sworn statements; in addition, he requested a deportation hearing. The arresting officers filled out an INS I-213 Form, entitled "Record of Deportable Alien" ("I-213 Form"), which contained the information obtained from the stop. The INS filed an order to show cause with the Immigration Court and commenced deportation proceedings against Gonzalez.

On February 26, 1988, at a master calendar hearing, Gonzalez contested deportability, denied all factual allegations in the order to show cause, sought relief in the form of voluntary departure under 8 U.S.C. Sec. 1254(e), and moved to suppress evidence obtained as a result of the vehicle stop. On March 7, 1988, Gonzalez filed a written motion to suppress evidence on the ground that his detention, arrest, and interrogation constituted an egregious violation of his Fourth Amendment rights. In his motion to suppress, Gonzalez alleged that he had been stopped solely on the basis of his Hispanic appearance. The INS filed an opposition to the motion to suppress in which it reserved the right to cross-examine Gonzalez and asserted its intent to call the arresting officers as witnesses both to authenticate the I-213 Form and to give Gonzalez the opportunity to develop the record as to the allegations of "egregious" conduct.

The hearing began on March 30, 1988. At the outset, the IJ marked as exhibits the order to show cause, the memoranda of appearances before the court, Gonzalez' motion to suppress evidence, and the INS's opposition to the motion. Both the INS and Gonzalez expressly stated that they had no objections to any of the exhibits.

The IJ admitted the I-213 Form into evidence over Gonzalez' objection. The INS then called Officer Wilson to the witness stand. Wilson testified that, on the day of the arrest he and his partner were traveling northbound on Interstate Highway 805, which Wilson described as a major corridor for alien smuggling. Wilson also stated that almost everyone who travels on Interstate Highway 805 is of Hispanic descent. Wilson did not testify as to the relative proportion of Hispanic appearing travelers who are legally in this country and not engaged in alien smuggling versus those who are illegal aliens or otherwise engaged in illegal conduct. Wilson testified that he and his partner were traveling behind the vehicle carrying Gonzalez and that there was nothing wrong or suspicious about the car itself or the manner in which Gonzalez' father was driving. Wilson testified that he drove up to Gonzalez' car and decided to stop the vehicle based on five factors: (1) Gonzalez and his father appeared to be Hispanic; (2) both of them sat-up straight, looked straight ahead and did not turn their heads to acknowledge the Border Patrol car; (3) Gonzalez' mouth appeared to be "dry"; (4) Gonzalez was blinking; and (5) both men appeared to be nervous.

Wilson contradicted himself somewhat when, after he read the I-213 Form to refresh

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his memory, he changed his description of Gonzalez' behavior, stating that "when [Gonzalez and his father] saw us, they turned, they turned and looked at us, and right away turned their heads, and just sat straight." [Admin.Rec. (AR) at 71] (emphasis added). He could not recall how Gonzalez was dressed except for the fact that he was wearing a cap. Wilson then stated that, based on his determination that the two men appeared to be nervous, he inferred that they had seen the Border Patrol car, and, based on his experience that in 100% of the cases people who have nothing to hide look at passing Border Patrol cars, Wilson concluded that the two men were nervous. During closing arguments, the INS added an additional factor to be considered in establishing reasonable suspicion that Wilson had not mentioned. The attorney for the INS stated that Gonzalez "was wearing a cap, and I realize that, you know, everybody who is wearing a cap is not an illegal alien, but all these facts put together, seem to indicate articulable facts, to ... to make a reasonable stop." [AR at 80].

The IJ concluded that "[i]n this case, the evidence shows that the stop involved was based solely on Hispanic appearance, and is an egregious Fourth Amendment violation," [AR at 44]. Accordingly, the IJ granted the motion to suppress the I-213 Form and Wilson's testimony concerning what he learned from the stop.

One and a half years after the deadline for filing a notice of appeal, the INS appealed to the BIA. In its appeal, the INS maintained that the stop was not based solely on Gonzalez' Hispanic appearance; that, in any case, such a stop would not have been an egregious Fourth Amendment violation that warranted applying the exclusionary rule; and that Gonzalez had failed to present a prima facie case of a Fourth Amendment violation.

The BIA reversed the IJ's decision to exclude the I-213 Form and Wilson's testimony on the grounds that the information it contained was accurate and that the stop was not based solely on Gonzalez' Hispanic appearance. The BIA explicitly declined to address whether or not a stop based solely on Hispanic appearance would constitute an egregious violation of the Fourth Amendment. The BIA also "observed" that Gonzalez' motion to suppress failed to present a prima facie case as it did not include a statement or testimony on his own behalf and that "the IJ should have dismissed the motion to suppress" at the outset. [AR at 15]. The BIA gave Gonzalez 30 days in which to depart voluntarily.

Gonzalez timely appealed. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a (1988).


  1. The Prima Facie Case

    A court's conclusion as to whether a plaintiff has satisfied the elements of a prima facie case of a Fourth Amendment violation is reviewed de novo, but the underlying factual findings may be reversed only if the evidence is such that no reasonable fact-finder could agree with the BIA. INS v. Elias-Zacarias, --- U.S. ----, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992).

    The INS contends that Gonzalez' appeal should be dismissed on the ground that he failed to establish a prima facie case regarding the Fourth Amendment violation. Without deciding whether the BIA correctly determined that Gonzalez did not establish a prima facie case, we hold that, by failing to raise this issue at the appropriate time, the INS has waived any claim of defects with Gonzalez' prima facie case.

    At the outset of the March 30, 1988 hearing, the IJ admitted the motion to suppress as one of the exhibits and explicitly asked whether either party had any objections. The INS did not object to the admission of the motion to suppress evidence and did not claim that Gonzalez had failed to establish a prima facie case. Instead, the INS proceeded to defend the claim and introduced testimonial evidence to challenge the validity of the allegations raised in the suppression motion. The INS addressed this issue for the first time in its brief to the BIA.

    This Court has held that "[w]here the defendant has done everything that would be required of him if the...

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