Escobar v. Holder, 101310 FED5, 09-60277

Docket Nº:09-60275, 09-60276, 09-60277
Opinion Judge:PER CURIAM
Party Name:JOSE SANTOS NATAREN ESCOBAR, Petitioner, v. ERIC H. HOLDER, JR., U.S. Attorney General, Respondent. EVIN ONEL NATARE NLOPEZ, Petitioner, v. ERIC H. HOLDER, JR., U.S. Attorney General, Respondent. JOSE ANTONIO NATAREN ESCOBAR, Petitioner, v. ERIC H. HOLDER, JR., U.S. Attorney General, Respondent.
Judge Panel:Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
Case Date:October 13, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

JOSE SANTOS NATAREN ESCOBAR, Petitioner,

v.

ERIC H. HOLDER, JR., U.S. Attorney General, Respondent.

EVIN ONEL NATARE NLOPEZ, Petitioner,

v.

ERIC H. HOLDER, JR., U.S. Attorney General, Respondent.

JOSE ANTONIO NATAREN ESCOBAR, Petitioner,

v.

ERIC H. HOLDER, JR., U.S. Attorney General, Respondent.

Nos. 09-60275, 09-60276, 09-60277

United States Court of Appeals, Fifth Circuit

October 13, 2010

On Petition for Review from an Order of the United States Board of Immigration Appeals, A088 745 173, A088 745 174, A088 745 175.

Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM[*]

The United States Board of Immigration Appeals (BIA) affirmed the finding of the immigration judge that the three petitioners-Jose Santos Nataren Escobar (Santos), Evin Onel Nataren Lopez (Lopez), and Jose Antonio Nataren Escobar (Antonio) (together, Natarens)-are Honduran citizens who entered the United States without inspection, and are subject to removal. The Natarens now appeal to this court, contending reversible error exists in a failure to suppress evidence in the removal proceedings or purported violations of due process and of the Department of Homeland Security's internal regulations. In the alternative, they assert that they should be subject to withholding of removal. Lacking such violations or sufficient grounds for withholding of removal, we affirm the decision of the BIA.

I

The Department of Homeland Security's Immigration and Customs Enforcement (ICE) agency detained the Natarens during an early morning immigration raid in Maryland. This raid was the culmination of an eighteen-month investigation, though the Natarens were not actually targets of the raid. Though ICE obtained warrants in connection with the raid, it did not have a warrant for the house in which the Natarens were discovered. Upon finding a van driven by one of the raid's targets parked by his neighbor's home, armed law enforcement obtained entrance to that home from its owner and occupant Alfonso Madrid Acosta (Acosta). Other agents may or may not have already entered through another door. ICE agents then spoke to the various individuals present in the home. Included in that group were the Natarens, who paid rent to Acosta and shared the home with him. The Natarens were interviewed by ICE agents and revealed themselves to have entered the United States without inspection. They subsequently provided sworn written statements admitting that they entered the United States illegally.

ICE then transported the Natarens to Texas, where they were brought before an immigration judge. The immigration judge found no reason to suppress evidence collected as a result of the ICE raid, pursuant either to the exclusionary rule of the Fourth Amendment or to due process under the Fifth Amendment and internal ICE regulations.

The immigration judge also rejected the Natarens' argument that they should be subject to withholding of removal. In support of their request for withholding, the Natarens noted that they are members of the National Party, one of two major parties in Honduras. Though Lopez is not a member of the party, the Natarens argue that their family as a whole is associated with the party. They contend that as a result they were subjected to violence when living in Honduras.

As evidence of this violence, they submitted the following: taxis owned by Antonio were violently robbed three times in Honduras during which the drivers were told to find other routes, and party paraphernalia on the cabs was removed; Antonio's father-in-law was killed in Honduras by Jeremiah Fuentes, whom Antonio asserts is a member of the rival Liberal Party; Antonio's wife received death threats in Honduras; and a relative of Jeremiah Fuentes, Alton Fuentes, later shot Lopez in the leg. The Fuentes family then contributed towards Lopez's medical bills in exchange for Lopez not assisting the Honduran police in their investigation. Though Santos stated at trial that he had never personally had any problems as a result of his family's politics, he testified that he now feared that he would. By contrast, the government contended that Alton Fuentes is a member of a violent gang, and that the Natarens were victims of gang and economic violence, rather than political intimidation.

The immigration judge found withholding of removal unwarranted. The BIA found no reason to disturb the conclusions of the immigration judge. As a result, it affirmed. The Natarens now appeal to this court, and their cases have been consolidated.

II

We have statutory jurisdiction to review the decision of the BIA under the Immigration and Nationality Act.1 We review constitutional claims in immigration proceedings de novo.2 Per the statute, findings of fact are conclusive unless any reasonable adjudicator would have to find otherwise.3Therefore, this court will not reverse a finding of fact "so long as it is not capricious, racially invidious, utterly without foundation in the evidence, or otherwise so aberrational that it is arbitrary rather than the result of any perceptible rational approach."4 Our authority is to review the decision of the BIA, and we have previously held that where the immigration judge's decision has an "impact" on the BIA's determination we may review it as well.5 Where, as here, the BIA largely relies on the immigration judge's findings, it is appropriate to review them.

A

We will address the Natarens' suppression and due process claims first. The Natarens assert that they are entitled to have the evidence forming the basis of this removal action suppressed in accordance with the Fourth Amendment. The Supreme Court held in Wong Sun v. United States that both products of unconstitutional searches and the fruits thereof are subject to exclusion in criminal proceedings under the Fourth Amendment unless sufficiently attenuated.6

The Natarens bring this challenge in an immigration proceeding, which is a civil, not criminal, proceeding.7 As a result, the potency of the exclusionary rule is not clear. In INS v. Lopez-Mendoza, with Justice O'Connor writing for the majority, the Supreme Court held that the exclusionary rule should not be applied in civil deportation hearings.8 The Natarens rely, instead, on negative inferences drawn from a later section of Justice O'CONNOR's opinion joined only by a plurality, suggesting that the Court had not reached the issue of "egregious violations of Fourth Amendment or other liberties that might transgress notions of fundamental fairness and undermine the probative value of the evidence obtained."9 In the instant case, we need not reach the question of whether an egregious violation of the Fourth Amendment would warrant suppression. Indeed, the Natarens have not demonstrated any violation of the Fourth Amendment, egregious or not, and the burden of proof is on the Natarens to show that exclusion is warranted.10

The Natarens argue that their home was searched without a warrant, and that Acosta's consent was defective. This argument is unavailing. Here, a co-occupant of the home consented to the entrance of law enforcement agents. The Supreme Court has long held that a co-occupant may consent to a search of shared premises for one not present.11 Thus, Acosta, an individual who lived in the home, had authority to allow the agents into the home while the Natarens slept. Once in the home, the agents needed no further consent to speak to the Natarens. As a result, Acosta's consent was effective.

The Natarens contend that because Acosta was their landlord, his consent was invalid under Chapman v. United States. In that case, the Supreme Court held that a landlord who owned but did not live in a property, and who possessed limited rights of access, could not consent to a police search of the home.12 As in the instant case, however, the Court has made clear that an individual also living at a property can consent to a search on behalf of a cotenant not currently objecting.13 There is no reason that a financial relationship between roommates should limit this power to consent. Indeed, this exception is sufficiently broad to allow Acosta to provide consent even if he had not actually lived in the home, but merely reasonably appeared to the officers to be an occupant.14 Since a reasonable appearance of cotenancy is sufficient for consent, there is no reason that receiving rent from an actual cotenant should render Acosta's consent defective.

The Natarens also argue that the purported entrance of other agents prior to Acosta's consent requires suppression of all evidence from the raid. The immigration judge and the BIA found that there was insufficient evidence of such an entrance, and the record does not compel a contrary view. Moreover, we note that Acosta's effective consent cures any defect through the inevitable discovery exception to the exclusionary rule. Where evidence would be discovered through an alternative process, unrelated to a purported violation, the Supreme Court has held that the evidence may be admitted.15 Here, even accepting the Natarens' factual account, the agents entering with consent were only moments behind the agents entering without consent and Acosta, unaware of their presence, would have admitted the others regardless. Thus, there are no grounds for application of the exclusionary rule.

In the alternative, presupposing both that a violation did occur and that an egregious violation would warrant exclusion, exclusion...

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