Corado-Arriaza v. Lynch , 844 F.3d 74 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2227
GUSTAVO ALBERTO CORADO-ARRIAZA,
Petitioner,
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Kayatta,
Circuit Judges.
Jonathan Ng, with whom Jason Panzarino and The Law Office of
Johanna Herrero were on brief, for petitioner.
Lindsay B. Glauner, Senior Litigation Counsel, Office of
Immigration Litigation, U.S. Department of Justice, with whom
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
and Linda S. Wernery, Assistant Director, were on brief, for
respondent.
December 19, 2016
LYNCH, Circuit Judge. Gustavo Corado-Arriaza petitions
for review of the Board of Immigration Appeals' ("BIA") affirmance
of an immigration judge's ("IJ") denial of his motion to suppress
and consequent issuance of an order of removal. We agree with the
BIA's affirmance of the IJ's conclusion that Corado-Arriaza did
not present a prima facie case that the search and seizure leading
to his arrest amounted to an egregious violation of the Fourth
Amendment. We see no need to reach the independent grounds that
support the BIA's conclusion.
The petition is denied.
I.
Corado-Arriaza, a native and citizen of Guatemala,
entered the United States in June 2005 on a B-2 visitor visa that
permitted him to remain in the United States until December 2005.1
Corado-Arriaza does not dispute that he stayed in the United States
beyond the expiration of his visa and resided, without lawful
status, in Massachusetts until he was detained by United States
Immigration and Customs Enforcement ("ICE") agents on February 27,
2013.
1 A B-2 visa is issued to a "visitor for pleasure" and
permits the visitor to "be admitted for not more than one year,"
though the visitor "may be granted extensions of temporary stay in
increments of not more than six months each." 8 C.F.R.
§ 214.2(b)(1); see Ibragimov v. Gonzales, 476 F.3d 125, 128 n.2
(2d Cir. 2007).
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On that day, he was working as a cook in a restaurant in
Wellesley, Massachusetts.2 At around 10:30 A.M., Corado-Arriaza's
manager and the head chef asked Corado-Arriaza to help them with
something. Corado-Arriaza followed the manager into a fifteen-
foot by fifteen-foot boiler room. Inside the room were four men
dressed in khakis and boots. Corado-Arriaza's manager told him
that the men wanted to talk to Corado-Arriaza and then left the
room.
Two of the men moved in front of the door to block
Corado-Arriaza's exit. They then identified themselves as ICE
agents, and one of the agents asked him, "Are you Gustavo Gomez?"
The agent showed him some papers, which he believed to be a
warrant, that included a fuzzy black-and-white photo of a man who
Corado-Arriaza said "was obviously not me." Corado-Arriaza told
the agent that his name was not Gustavo Gomez, but rather Gustavo
Corado-Arriaza. Corado-Arriaza later learned that Gustavo Gomez
was a man who had worked at the restaurant before him. When the
agent asked Corado-Arriaza for his identification, Corado-Arriaza
provided him with his Guatemalan driver's license.
After Corado-Arriaza showed the agent his driver's
license, the agents handcuffed his hands behind his back and began
2 We take the facts from Corado-Arriaza's declaration in
support of his motion to suppress, which the IJ and the BIA assumed
to be true.
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to question him about topics such as his date of birth and the
names of his children. At one point, Corado-Arriaza heard one of
the agents say, "It's not a match. The date of birth and the name
of the wife and son aren't the same." Nonetheless, the agents
continued to question Corado-Arriaza about his identity, and they
searched his pockets and his wallet. Corado-Arriaza continued to
tell them that he was not the man for whom they were looking, and
he "feared that it was going to go on and on if I didn't answer
all of their questions."
When asked by the agents whether he had a green card,
Corado-Arriaza answered "no," and did so "because I didn't feel
like I had any option but to answer their questions." At some
point, Corado-Arriaza told the agents that his passport was in his
jacket in the restaurant. After the agents retrieved the jacket,
they asked Corado-Arriaza how he had come to the United States,
and he told them that he had arrived on a visa.
Though the agents were carrying firearms, they did not
brandish them or point them at Corado-Arriaza. Nor does he allege
that the agents yelled at him or threatened him. Corado-Arriaza
did state, however, that the agents never read him his rights or
told him that he could call a lawyer.
The agents then placed Corado-Arriaza, still handcuffed,
in the back of their vehicle. Corado-Arriaza overheard the agents
saying, "What should we do with this guy?" One of the agents
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received a phone call, and Corado-Arriaza heard him say, "not the
target, but we got someone else." The agents then told Corado-
Arriaza that he was being arrested for overstaying his visa.
II.
On February 27, 2013, the Department of Homeland
Security ("DHS") served Corado-Arriaza with a Notice to Appear
that charged him with removability under 8 U.S.C. § 1227(a)(1)(B)
on the basis that he had remained in the United States beyond the
six months permitted by his B-2 visa. On June 11, 2013, Corado-
Arriaza, through counsel, denied the allegations in the Notice to
Appear. DHS filed amended factual allegations on July 19, 2013,
clarifying the date that Corado-Arriaza was admitted into the
United States (June 27, 2005) and the date on which his B-2 visa
expired (December 25, 2005). Corado-Arriaza denied these factual
allegations.
In support of its allegations, DHS submitted a copy of
Corado-Arriaza's passport and an Arrival/Departure Form known as
a Form I-94. See 8 C.F.R. § 264.1(a). The Form I-94 is a
registration form that "includes the collection of
arrival/departure and admission or parole information by DHS,
whether in paper or electronic format, which is made available to
the person about whom the information has been collected, as may
be prescribed by DHS." Id. § 1.4. Corado-Arriaza's Form I-94
lists his name as "Gustavo Alberto Corado Arriaza," his date of
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birth as June 6, 1981, and his citizenship as Guatemalan. It also
lists his arrival date as June 27, 2005, and it is stamped with
the date "DEC 25 2005," which the government identifies as the
date through which Corado-Arriaza was authorized to remain in the
United States. Corado-Arriaza does not dispute that the
information contained in the Form I-94 is sufficient to establish
his removability.
During a hearing before the IJ, counsel for the
government informed the IJ that he obtained the Form I-94 -- after
Corado-Arriaza's arrest -- by contacting United States Customs and
Border Protection ("CBP"), which, like ICE, is an agency within
DHS. Corado-Arriaza acknowledges that the government was already
in possession of the Form I-94 well before his arrest and that the
Form I-94 played no role in his arrest.
On December 9, 2013, Corado-Arriaza filed a motion to
suppress "all evidence, physical and testimonial, obtained as the
fruit of the Immigration and Customs Enforcement's . . . unlawful
search, seizure, interrogation, arrest, and detention which
occurred on or about February 27, 2013." Specifically, he moved
for suppression of his passport and the Form I-94. Corado-Arriaza
argued that these documents should be suppressed, as relevant here,
(1) because they were obtained as the result of an "egregious"
violation of the Fourth Amendment, see INS v. Lopez-Mendoza, 468
U.S. 1032, 1050 (1984) (plurality opinion), and (2) because they
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were obtained in violation of DHS regulations. In support of his
motion, he submitted a declaration attesting to the facts about
his encounter with ICE described above.
On January 14, 2014, the IJ, following a merits hearing,
issued an oral decision denying Corado-Arriaza's motion to
suppress.3 The IJ correctly noted that the exclusionary rule does
not apply to searches and seizures in civil immigration proceedings
unless the alien can show "egregious violations of [the] Fourth
Amendment." Id. at 1050. The IJ found that Corado-Arriaza failed
to "allege[] facts in his declaration which, even if true, would
provide a reason to suppress the contested evidence."4
The IJ also noted that the government had stated during
the hearing that the Form I-94 was obtained independently of
Corado-Arriaza's seizure, and that Corado-Arriaza had offered no
evidence "that the ICE agents obtained the I-94 during
questioning."
On September 17, 2015, the BIA affirmed the IJ's denial
of Corado-Arriaza's motion to suppress. The BIA held that
3 Corado-Arriaza also filed a motion to terminate
proceedings, which the IJ denied, and a request for voluntary
departure, which the IJ granted. Corado-Arriaza presents no
developed argument independently challenging the denial of his
motion to terminate. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
4 Corado-Arriaza did not present a claim to the IJ that he
was the subject of race discrimination, and he has not disagreed
with the government's assertion that the claim was not exhausted.
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"[a]ssuming the facts as presented by the respondent to be true,
and assuming that his arrest was illegal (an issue that we do not
need to reach), we uphold the Immigration Judge's determination
that based on the totality of the circumstances, the respondent
did not meet his burden of establishing a prima facie egregious
violation of the Fourth Amendment." The BIA explicitly rejected
Corado-Arriaza's argument that he had shown egregiousness because
he had felt intimidated and not free to leave, citing case law
explaining that that did not render his responses nonconsensual.
See INS v. Delgado, 466 U.S. 210, 216 (1984). It also explicitly
rejected his argument that it was enough to show that the agents
were visibly armed, citing case law stating that the presence of
a holstered firearm carried by a uniformed officer is unlikely to
contribute to coerciveness absent active brandishing of the
weapon. See United States v. Drayton, 536 U.S. 194, 205 (2002).
It further found that nothing about the conduct of the agents
undermined the reliability of the evidence DHS had proffered.
The BIA also "agree[d] with the Immigration Judge that
even if circumstances were considered to rise to the level of
'egregious,' the DHS presented sufficient independent evidence to
establish removability" through the Form I-94.
In addition, the BIA rejected Corado-Arriaza's argument
that alleged regulatory violations by the ICE agents warranted
suppression. The BIA also noted that whether or not the "arrest"
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was illegal had no bearing on Corado-Arriaza's removal
proceedings.
This petition for review followed.
III.
"Since 'the BIA adopted and affirmed the IJ's ruling,
and discussed some of the bases for the IJ's opinion, we review
both the BIA's and IJ's opinions.'" Sauceda v. Lynch, 819 F.3d
526, 531 (1st Cir. 2016) (quoting Idy v. Holder, 674 F.3d 111, 117
(1st Cir. 2012)). We review the resolution of legal issues,
including whether evidence is suppressible, de novo. Garcia-
Aguilar v. Lynch, 806 F.3d 671, 675 (1st Cir. 2015).
In Lopez-Mendoza, the Supreme Court held that the
exclusionary rule generally does not apply in removal proceedings.
468 U.S. at 1050. This court has noted that Lopez-Mendoza provides
"only a 'glimmer of hope of suppression.'" Kandamar v. Gonzales,
464 F.3d 65, 70 (1st Cir. 2006) (quoting Navarro–Chalan v.
Ashcroft, 359 F.3d 19, 22 (1st Cir. 2004)). Specifically, Corado-
Arriaza must have established that the search and seizure at issue
amounted to an "egregious violation[] of [the] Fourth Amendment"
that so "transgress[ed] notions of fundamental fairness and
undermine[d] the probative value of the evidence obtained," as to
constitute a Fifth Amendment violation of the right to due process.
Lopez-Mendoza, 468 U.S. at 1050-51 & n.5.
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Like the BIA, we bypass the question of whether there
was any Fourth Amendment violation. See Martinez–Medina v. Holder,
673 F.3d 1029, 1034 (9th Cir. 2011) ("[W]e need not and do not
decide whether the seizure violated Petitioners’ Fourth Amendment
rights because we conclude that, even if [it did], the violation
was not egregious."); Yanez-Marquez v. Lynch, 789 F.3d 434, 451
(4th Cir. 2015); Martinez Carcamo v. Holder, 713 F.3d 916, 922-23
(8th Cir. 2013). We also need not spell out the precise conduct
that would rise to the level of an egregious violation, see Garcia-
Aguilar, 806 F.3d at 676 n.4, because it is plain from "the
totality of the circumstances" that the conduct here fell short,
see Martinez Carcamo, 713 F.3d at 922-23.
We likewise reject Corado-Arriaza's alternative argument
that suppression is warranted because, he alleges, the ICE agents
violated two regulatory provisions: 8 C.F.R. § 287.3(c) (requiring
that an alien arrested without a warrant and placed in formal
proceedings be apprised of the reason for his arrest, his right to
representation, and that any statement he makes may be used against
him in a subsequent proceeding), and 8 C.F.R. § 287.8(b)(1) ("An
immigration officer, like any other person, has the right to ask
questions of anyone as long as the immigration officer does not
restrain the freedom of an individual, not under arrest, to walk
away."). These regulations, even if violated, do not furnish
aliens with a right to suppression in removal proceedings.
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Navarro-Chalan, 359 F.3d at 23 ("[8 C.F.R. §§ 287.3(c) and
287.8(b)(1)] 'do not, are not intended to, shall not be construed
to, and may not be relied upon to create any rights, substantive
or procedural, enforceable at law by any party in any matter, civil
or criminal.'" (quoting 8 C.F.R. § 287.12)); see also, e.g., Yanez-
Marquez, 789 F.3d at 474.
IV.
The petition for review is denied.
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