Santos v. Holder, 010413 FED5, 12-60279

Docket Nº:12-60279
Opinion Judge:PER CURIAM:
Party Name:SAUL GONZALEZ SANTOS; JOHNNY GONZALEZ SANTOS; WILFREDO JIMENEZ-LOPEZ, Petitioners v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent
Judge Panel:Before JONES, DENNIS, and HAYNES, Circuit Judges.
Case Date:January 04, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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SAUL GONZALEZ SANTOS; JOHNNY GONZALEZ SANTOS; WILFREDO JIMENEZ-LOPEZ, Petitioners

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

No. 12-60279

United States Court of Appeals, Fifth Circuit

January 4, 2013

Petition for Review of an Order of the Board of Immigration Appeals BIA Nos. A094 775 115, A094 775 117, A094 775 118

Before JONES, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM: [*]

Guatemalan nationals Saul Gonzalez Santos (Saul), Johnny Gonzalez Santos, and Wilfredo Jimenez-Lopez petition for review of the Board of Immigration Appeals' (BIA) decision dismissing their appeal and affirming the Immigration Judge's (IJ) order denying their motion to suppress and finding them removable. They contend that the BIA and IJ erred in denying their motion to suppress, asserting that the immigration agents' conduct in their case constituted an egregious violation of the Fourth Amendment. The Petitioners also renew their argument that the agents failed to follow their own regulations, specifically, 8 C.F.R. § 287.8(f)(2), which, they contend, constitutes a Fifth Amendment due process violation. They urge that the proof of their alienage should therefore have been suppressed and that the removal proceedings should have been terminated.

The Petitioners additionally argue, for the first time, that Immigration and Customs Enforcement Fugitive Operations' overreaching goals and inadequate officer training have led to widespread, systemic Fourth Amendment violations. However, they have waived the argument by failing to exhaust it. See 8 U.S.C. § 1252(d)(1); see also Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).

We review the Petitioners' constitutional claims de novo. See Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003). The factual findings of the BIA and IJ are reviewed for substantial evidence. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).

The Fourth Amendment's exclusionary rule does not generally apply to civil removal proceedings, though the Supreme Court has left open the possibility that it might apply to egregious violations. INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). The Petitioners assert that the agents violated the Fourth Amendment in this case because Saul's consent to the search of his apartment was involuntary and/or limited in scope. However, substantial evidence supports the IJ's and BIA's finding that Saul...

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