536 F.3d 1012 (9th Cir. 2008), 06-70868, Lopez-Rodriguez v. Mukasey

Docket Nº:06-70868.
Citation:536 F.3d 1012
Party Name:Luz LOPEZ-RODRIGUEZ; Fabiola Gastelum-Lopez, Petitioners, v. Michael B. MUKASEY, Attorney General, Respondent.
Case Date:August 08, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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536 F.3d 1012 (9th Cir. 2008)

Luz LOPEZ-RODRIGUEZ; Fabiola Gastelum-Lopez, Petitioners,

v.

Michael B. MUKASEY, Attorney General, Respondent.

No. 06-70868.

United States Court of Appeals, Ninth Circuit.

August 8, 2008

Argued and Submitted June 4, 2008.

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Sara J. O'Connell, Morrison & Foerster, LLP, San Diego, CA, for the petitioners.

Aviva L. Poczter, (briefs) and Song Park (oral argument), United States Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A78-184-178, A78-184-179.

Before: WILLIAM C. CANBY, JR. and JAY S. BYBEE, Circuit Judges, and JUSTIN L. QUACKENBUSH,[*] Senior District Judge.

Opinion by Judge CANBY; Concurrence by Judge BYBEE.

CANBY, Circuit Judge:

Fabiola Gastelum-Lopez (“Gastelum" ) and Luz Lopez-Rodriguez (“Lopez" ) petition for review of a decision of the Board of Immigration Appeals (“BIA" ) that affirmed an order of the Immigration Judge (“IJ" ) removing them to Mexico. They contend that the IJ and BIA erred in denying their joint motion to suppress their respective Forms I-213 (Record of Deportable/Inadmissible Alien) and a sworn statement by Gastelum, because the evidence contained in these documents was obtained in egregious violation of their Fourth Amendment rights. We agree that this evidence should have been suppressed. Because the government did not produce any other evidence tending to show the petitioners' alienage in the proceedings before the IJ, we grant the petition for review, reverse and remand.

BACKGROUND

In October 2000, the Immigration and Naturalization Service (“INS" ) 1 received a tip that a female by the name of Fabiola was fraudulently using a birth certificate belonging to Sugeyra Torres-Carillo, a citizen of the United States, to obtain employment. The tip also indicated that the suspect lived at a specified address in Fresno, California. Gastelum and Lopez, niece and aunt, resided at that address.

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Gastelum was seventeen years old at the time.

Three INS agents decided to act on the tip and visit the residence to investigate the matter. They did not obtain an arrest or search warrant prior to conducting their visit.2 The circumstances surrounding the INS agents' entry into the residence were disputed, as we explain below. Ultimately, the IJ found that the agents entered without consent. Once inside, the three INS agents questioned Gastelum. They asked her whether she was “Sugeyra." She answered that she was. They asked her to provide the names of her parents. She complied.3 They asked her where she had been born, and she responded that she was born in Texas. They asked where in Texas she was born, and she did not reply. They asked, “Who is Fabiola?" She said she was Fabiola. They immediately handcuffed her. The agents also arrested Lopez on suspicion of being an alien unlawfully present in the United States. 4

While in INS custody, Gastelum and Lopez were questioned about, among other things, their country of origin and immigration status in the United States. On the basis of the information they obtained, the INS agents prepared individual Forms I-213, Record of Deportable/Inadmissible Aliens, for Gastelum and Lopez. The forms reflect what the INS agents believed to be the petitioners' biographical information and immigration status as well as a skeletal narrative of the arrest of each petitioner. According to the forms, both Gastelum and Lopez are natives and citizens of Mexico not authorized to be in the United States. The forms also show that neither Gastelum nor Lopez had a criminal record.

The INS agents also produced a Record of Sworn Statement by Gastelum. In her sworn statement, Gastelum acknowledged that she was a native and citizen of Mexico. She also admitted that she had received a birth certificate in the name of Sugeyra from a 43-year-old foreman, Francisco Lopez-Fuentes (Fuentes), who had supervised her when she worked in the fields. Fuentes did not ask Gastelum for any money in exchange for the birth certificate.

The government issued Notices to Appear in removal proceedings to both Gastelum and Lopez. In joint proceedings, Gastelum and Lopez moved to suppress the Forms I-213 as well as Gastelum's sworn statement. They submitted an affidavit by Gastelum asserting that she did not consent to the INS agents' entry into their home. In the Forms I-213, the INS agents asserted that she had in fact consented. The IJ required Gastelum to testify at the removal hearing in support of her motion to suppress. She testified that, when the agents arrived, she was asleep in her bedroom. Her aunt Lopez woke her up to let her know that some individuals were calling her. Gastelum went to the door, which was “slightly open and not locked," “opened it a little more and ...

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peeked outside." She saw two men standing outside the door. They asked her if her name was “Sugeyra." She did not open the door for them and did not allow them to enter. She testified that the two men pushed the door and entered, accompanied by a third, female agent. Once inside, the agents proceeded to interrogate her as described above. After Gastelum answered several questions and was being handcuffed, the INS agents finally identified themselves.

After the direct examination of Gastelum and a brief cross-examination by the government, the IJ ruled that testimony by the INS agents was necessary to resolve the apparent conflict between Gastelum's testimony and the government's assertion that she had consented to the agents' entry. The hearing was continued. At the next hearing, the government did not produce any of the three agents involved in the raid. The IJ credited Gastelum's version of the events surrounding the entry and recognized “some 4th Amendment problems with the manner of entering and questioning." She concluded, however, that the violations were not “so egregious as to fall under the [']fundamentally unfair ['] line of cases that would suppress these events." She denied the motion to suppress and ordered Gastelum and Lopez removed.

Gastelum and Lopez appealed to the BIA, which affirmed the IJ's decision without opinion pursuant to 8 C.F.R. § 1003.1(e)(4). Gastelum and Lopez have filed this timely petition for review. We have jurisdiction pursuant to 8 U.S.C. § 1252.

DISCUSSION

Where, as here, the BIA affirms the decision of the IJ without opinion, we review the IJ's decision. Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 815 (9th Cir.2004). We review de novo constitutional challenges to removal orders. E.g., Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). Factual findings underlying an IJ's order are reviewed for substantial evidence. Melkonian v. Ashcroft, 320 F.3d 1061, 1065 (9th Cir.2003).

Gastelum and Lopez seek review of the IJ's denial of their motion to suppress the I-213 forms prepared by the INS and Gastelum's sworn statement. We conclude that, on the facts developed before the IJ, the evidence of alienage 5 contained in these documents was obtained in violation of Gastelum's and Lopez's Fourth Amendment rights and that the violation was “egregious." Because the government did not produce any other evidence tending to show the petitioners' alienage in the proceedings before the IJ, we grant their petition for review and...

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