629 F.3d 771 (8th Cir. 2010), 09-1296, Puc-Ruiz v. Holder

Docket Nº:09-1296, 09-3629.
Citation:629 F.3d 771
Opinion Judge:MELLOY, Circuit Judge.
Party Name:Jorge Angel PUC-RUIZ, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
Attorney:Omar C. Jadwat, argued, New York, NY, Anthony E. Rothert, Amany Ragab Hacking, John J. Ammann, and Laura Spencer, St. Louis, MO, Lee Gelernt, New York, NY, and Harini Raghupathi, San Francisco, CA, on the brief, for petitioner. M. JocelynLopez Wright, argued, Tony West, AAG, and Melissa Neiman-Ke...
Judge Panel:Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
Case Date:December 23, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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629 F.3d 771 (8th Cir. 2010)

Jorge Angel PUC-RUIZ, Petitioner,

v.

Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

Nos. 09-1296, 09-3629.

United States Court of Appeals, Eighth Circuit.

December 23, 2010

Submitted: Sept. 23, 2010.

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Omar C. Jadwat, argued, New York, NY, Anthony E. Rothert, Amany Ragab Hacking, John J. Ammann, and Laura Spencer, St. Louis, MO, Lee Gelernt, New York, NY, and Harini Raghupathi, San Francisco, CA, on the brief, for petitioner.

M. JocelynLopez Wright, argued, Tony West, AAG, and Melissa Neiman-Kelting, Senior Litigation Counsel, on the brief, Washington, D.C., for respondent.

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Jorge Angel Puc-Ruiz, a native and citizen of Mexico, petitions for review of a Board of Immigration Appeals (" BIA" ) decision dismissing his appeal from an Immigration Judge's (" IJ" ) order removing him from the United States to Mexico. Puc-Ruiz argues that the evidence of his alienage and lack of lawful status in the United States should have been suppressed because it was obtained in violation of his rights under the Fourth Amendment, Fifth Amendment, and agency regulations. Puc-Ruiz also contends that the BIA erred in affirming the IJ's denial of voluntary departure and erred in denying Puc-Ruiz's motion to strike the IJ's written decision as ultra vires. We dismiss the petition for review from the denial of voluntary departure and deny the petition for review in all other respects.

I. Background

Jorge Angel Puc-Ruiz is a native and citizen of Mexico. In the early morning hours of August 25, 2007, Puc-Ruiz was patronizing Mexico on Main, a restaurant in St. Charles, Missouri. At around 4:00 a.m., local police entered the restaurant without a warrant, apparently acting on a tip that the restaurant was serving alcohol in violation of a municipal ordinance. When asked for identification, Puc-Ruiz produced a valid Missouri driver's license. Puc-Ruiz and five other Mexican nationals were arrested and transported to the police station, where they were fingerprinted and detained. During this time, the St. Charles Police Department contacted U.S. Immigration and Customs Enforcement (" ICE" ). While Puc-Ruiz was in police custody, ICE Agent Jeffrey Othic interviewed him by telephone and determined that Puc-Ruiz was an undocumented foreign national. Consequently, Agent Othic issued an immigration detainer for Puc-Ruiz, and on August 27, 2007, the St. Charles police released Puc-Ruiz to ICE custody. Then, Agent Othic conducted a second, more in-depth interview with Puc-Ruiz. During this interview, Agent Othic prepared a Form I-213, in which he memorialized the information obtained during the two interviews with Puc-Ruiz, including that Puc-Ruiz was an undocumented alien who had last entered the United States on August 15, 1998 near Douglas, Arizona without inspection. The Form I-213 also reflected the results of a computerized records search, which had returned an IDENT record indicating that Puc-

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Ruiz had previously elected voluntary departure after an encounter with immigration authorities in 1998, as well as Agent Othic's understanding that Puc-Ruiz had been arrested for " a municipal ordinance violation of Drinking Alcohol after 1:30 AM."

On August 28, 2007, Agent Othic personally served Puc-Ruiz with a Notice to Appear, charging him with removability under 8 U.S. C. § 1182(a)(6)(A)(i). Agent Othic also filed the document with the immigration court to commence removal proceedings. The following day, Puc-Ruiz was released on bond. Between one and two weeks later, he received a ticket from the St. Charles Police Department stating that he had violated a liquor license on August 25. However, there is no evidence that Puc-Ruiz ever owned or operated the establishment in which he was arrested. On October 25, 2007, the prosecuting attorney for the City of St. Charles decided not to prosecute the charge against Puc-Ruiz, and on December 17, 2007, a St. Charles municipal court judge ordered the arrest record expunged on the grounds that " the arrest ... was based on false information" and " there [was] no probable cause at the time of the action to expunge to believe that [Puc-Ruiz] committed the offense."

Puc-Ruiz first appeared before an IJ on December 18, 2007. Following that hearing, he moved to suppress the evidence resulting from his arrest on August 25, 2007, including the I-213 form, and to terminate proceedings. Following a removal hearing on January 8, 2008, the IJ issued a summary decision denying Puc-Ruiz's motions to suppress and terminate, declining to grant his request for voluntary departure, and ordering him removed to Mexico. On February 5, 2008, Puc-Ruiz timely filed his Notice of Appeal with the BIA. On February 6, 2008, the IJ issued a written Decision and Order of the Immigration Judge, providing written reasons in support of the oral decision of January 8, 2008. The written decision explained that even if the initial arrest was improper, the manner in which ICE obtained the information relating to Puc-Ruiz was reasonable and in accordance with routine procedures. Indeed, the IJ could find " no allegations in the record of any misconduct on ICE's part." This being so, and because the probative value of the evidence obtained by ICE was not undermined by the " alleged improper and unrelated activities" of the St. Charles police, Puc-Ruiz's motion to suppress was denied. Additionally, the IJ explained that Puc-Ruiz's request for voluntary departure was denied " as a matter of discretion."

On March 4, 2008, Puc-Ruiz filed a motion to strike the IJ's written decision, arguing that the order was filed after the IJ had been divested of jurisdiction over the case. In a written decision on January 13, 2009, a three-member panel of the BIA affirmed the IJ's decision and denied Puc-Ruiz's motion to strike. The BIA agreed with the IJ that because ICE officers had no role in Puc-Ruiz's arrest or initial detention, " the information relating to [Puc-Ruiz's] alienage was not tainted and thus is not subject to suppression." Further, the BIA held that Puc-Ruiz's due process and regulatory claims failed because there was no fundamental unfairness in the process by which Agent Othic obtained information about Puc-Ruiz's identity or alienage, and ICE had not violated agency regulations. The BIA also found that the IJ's written decision of February 6, 2008 was properly issued and that the IJ's denial of voluntary departure was not an abuse of discretion. Puc-Ruiz timely filed a motion for reconsideration, which was denied on October 28, 2009. This appeal follows.

II. Discussion

Pursuant to the REAL ID Act of 2005, we retain jurisdiction to review " constitutional

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claims or questions of law" raised upon a petition for review challenging a removal order. 8 U.S. C. § 1252(a)(2)(D). " When the BIA adopts and affirms the IJ's decision, but also adds reasoning of its own, we will review both decisions together." Chen v. Mukasey, 510 F.3d 797, 800 (8th Cir.2007). We review questions of law de novo but accord substantial deference to the BIA's interpretation of immigration statutes and regulations. Lateef v. Dep't of Homeland Sec., 592 F.3d 926, 929 (8th Cir.2010). " We review the agency's findings of fact for substantial evidence under the statutory standard for immigration cases: ‘ [T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Chen, 510 F.3d at 800 (quoting 8 U.S. C. § 1252(b)(4)(B)).

A. Motion to Suppress

(i) Fourth Amendment claim

Puc-Ruiz seeks to suppress all statements and documentation regarding his national origin and citizenship obtained by ICE-including the Form I-213 prepared by ICE Agent Othic-as a result of his arrest by the...

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