In re Mariscal-Hernandez
| Decision Date | 09 December 2022 |
| Docket Number | 4056 |
| Citation | 28 I&N Dec. 666 |
| Parties | Matter of Fermin MARISCAL-HERNANDEZ, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) Where an Immigration Judge finds that a traffic stop was nothing more than a routine law enforcement action, a respondent has not established a prima face case of a Fourth Amendment violation-much less an egregious violation-and is not entitled to a hearing on a suppression motion. Matter of Barcenas, 19 I&N Dec. 609 (BIA 1988) followed.
(2) Unsupported assertions and speculation have no evidentiary value and are insufficient to establish a prima facie case that an investigatory stop was an egregious violation of the Fourth Amendment, and thus they do not warrant a suppression hearing.
FOR THE RESPONDENT: JAN JOSEPH BEJAR, ESQUIRE, SAN DIEGO CALIFORNIA
FOR THE DEPARTMENT OF HOMELAND SECURITY: ALVIN RATANA, ASSISTANT CHIEF COUNSEL
BEFORE: Board Panel: MALPHRUS, Deputy Chief Appellate Immigration Judge; HUNSUCKER and PETTY, Appellate Immigration Judges.
In a decision dated December 7, 2018, an Immigration Judge denied the respondent's motion to suppress evidence and terminate his removal proceedings. The respondent has appealed from this decision as well as the Immigration Judge's decision to deny his motion to terminate based on Pereira v. Sessions, 138 S.Ct. 2105 (2018). The appeal will be dismissed.
On February 14, 2017, Immigration and Customs Enforcement ("ICE") officers were conducting surveillance in Encinitas, California, seeking to arrest a previously removed noncitizen with a final order of removal. During this surveillance, the officers saw a man resembling the target of their investigation exit the apartment complex where they believed their target lived and enter the passenger side of a vehicle. ICE officers stopped and then approached the vehicle and questioned the vehicle's occupants-the respondent and the respondent's son.
In a declaration appended to his motion to suppress, the respondent claims that ICE officers presented him and his son with a photograph of the man who was the target of the investigation. The respondent asserts he told the officers he did not know the man in the photograph. A Record of Deportable/Inadmissible Alien (Form I-213) documenting the stop states that ICE officers then asked both the respondent and his son for identification. The respondent's son produced a Mexican matrícula-an identity document issued by the Government of Mexico-but the respondent replied that he could not produce any identification. According to the Form I-213, the respondent and his son then admitted they were unlawfully present in the United States. The respondent's declaration is vague about his further communications with the ICE officers during the stop. In it, the respondent claims the ICE officers "did not really speak to [him]," but he does not deny telling officers that he was unlawfully in the United States. Both the respondent and his son were then arrested and transported to the San Diego ICE office.
The respondent states in his declaration that while officers at the San Diego ICE office asked him "various questions" and took his fingerprints, they never asked him if he was lawfully in the United States. The respondent further claims he was never advised of his rights to remain silent and hire an attorney, and he "felt compelled to answer the questions" he was asked, though he does not specify what those questions were. The respondent was released later that day. The same day as the arrest and stop, ICE officers prepared the Form I-213. In addition to detailing the stop and arrest, this form states that a records check revealed the respondent was voluntarily returned to Mexico on January 13, 2003.
Prior to his release from the San Diego ICE office, the Department of Homeland Security ("DHS") personally served the respondent with a notice to appear that stated he was to appear for a removal hearing before the San Diego Immigration Court at a date and time to be set. The notice to appear alleged the respondent is a native and citizen of Mexico who entered the United States on or about December 15, 2001, without admission or parole and charged him with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(A)(i) (2012), as an individual present in the United States without having been admitted or paroled.
The respondent moved to suppress the Form I-213, which contains evidence of his alienage and supports the allegations and charge of removability. The respondent claimed DHS obtained this evidence through an egregious violation of his rights under the Fourth Amendment of the United States Constitution-specifically, that ICE officers knowingly stopped him based on his apparent ethnicity without any reasonable suspicion that he was unlawfully present in the United States. He also claimed DHS violated his rights under the INA and the governing regulations by conducting a warrantless arrest and failing to advise him of his right against self-incrimination. Finally, he claimed the Form I-213 is unreliable and that he should be permitted to cross-examine the ICE officers who arrested him "and any other officer" involved in his "seizure and custodial interrogation."
The Immigration Judge denied the respondent's motion to suppress the Form I-213 and terminate proceedings. The respondent did not submit any applications for relief from removal but was granted the benefit of voluntary departure under section 240B(b)(1) of the INA, 8 U.S.C. § 1229c(b)(1) (2018). On appeal, the respondent challenges the Immigration Judge's decision to deny his motion to suppress the Form I-213 and terminate proceedings.[1]
"In immigration proceedings, the 'sole test for admission of evidence is whether the evidence is probative and its admission is fundamentally fair.'" Matter of E-F-N-, 28 I&N Dec. 591, 593 (BIA 2022) (citation omitted); see also Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012) (per curiam) (same). Here, the Immigration Judge properly found the Form I-213 to be probative of the respondent's alienage and the allegation in the notice to appear that he is a native and citizen of Mexico. See Matter of E-F-N-, 28 I&N Dec. at 593 (citing Matter of Ruzku, 26 I&N Dec. 731, 733 (BIA 2016) ()). It is also probative of his removability under section 212(a)(6)(A)(i) of the INA, 8 U.S.C. § 1182(a)(6)(A)(i), because it reflects the respondent is unlawfully in the United States.
The admission of the Form I-213 was fundamentally fair. Sanchez, 704 F.3d at 1109 ("Admission of a Form I-213 'is fair absent evidence of coercion or that the statements are not those of the petitioner.'"); see also Hernandez v. Garland, No. 20-72138, 2022 WL 16547160, at *5 (9th Cir. Oct. 31, 2022) ( . Although the respondent asserts he "felt" compelled to answer the ICE officers' questions, he has not presented evidence demonstrating that ICE officers used coercion to obtain any of the information contained in the Form I-213, including that he and his son admitted to being unlawfully present during the stop. Additionally, while the respondent claims in his declaration the officers "did not really speak to [him]" and "never asked [him] if [he] was lawfully in the United States," he does not deny making the statements regarding his alienage, or the time, place, and manner of his entry as recorded in the Form I-213. Thus, the respondent's declaration does not "cast doubt upon [the] reliability" of the Form I-213. Espinoza v. INS, 45 F.3d 308, 311 (9th Cir. 1995).
Furthermore, the respondent has not shown that the Immigration Judge's decision to admit the Form I-213 and not permit him to cross-examine the ICE officers who prepared this form prejudiced him. See Olea-Serefina v. Garland, 34 F.4th 856, 866 (9th Cir. 2022) ().[2]
The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. amend. IV. To effectuate this constitutional right, the Supreme Court of the United States has, in some contexts, required evidence obtained in violation of the Fourth Amendment, or derived from such a violation, to be excluded from judicial proceedings. See Herring v. United States, 555 U.S. 135, 139 (2009) ().
In Matter of Sandoval, 17 I&N Dec. 70, 83 (BIA 1979), we held that the exclusionary rule does not apply in civil immigration proceedings. We reached this holding after concluding the "societal costs" of applying the exclusionary rule in immigration proceedings, namely, the "sanctioning of a continuing violation of this country's immigration laws," outweighed "the remote likelihood that the exclusion of...
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