Carlos Ortiz Becerra v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CARLOS ORTIZ BECERRA, No. 17-70859
Petitioner, Agency No. A078-103-644
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 20, 2020**
Submission Vacated March 16, 2021
Resubmitted April 29, 2021
Pasadena, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and PRESNELL,***
District Judge.
Carlos Ortiz Becerra, a native and citizen of Mexico, petitions for review of a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
reinstatement of removal order, and an immigration judge’s negative reasonable fear
determination. The petition is dismissed in part and denied in part.
1. Ortiz Becerra argues that the reinstatement order is invalid because the
government hasn’t established the existence of a prior removal order. See Morales-
Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007) (citing 8 U.S.C.
§ 1231(a)(5); 8 C.F.R. § 241.8) (reinstatement of removal requires there to be a prior
removal order in the first place). Ortiz Becerra’s argument relies on the fact that he
never signed the prior removal order as required by 8 C.F.R. § 235.3(b)(2)(i). But
we do not have jurisdiction to consider this claim. See Alvarado-Herrera v.
Garland, No. 18-70191, 2021 U.S. App. LEXIS 10492, at *14 (9th Cir. Apr. 13,
2021) (8 U.S.C. § 1252 limits collateral attacks on the validity of an expedited
removal order being reinstated to a few “narrow issues” that “must be raised in
habeas corpus proceedings”). Ortiz Becerra’s arguments do not implicate these
exceptions, and this is not a habeas corpus proceeding. Therefore, we dismiss this
portion of Ortiz Becerra’s petition for lack of jurisdiction.
2. We do not find any basis for suppressing Ortiz Becerra’s statements to
Immigration and Customs Enforcement officials based on alleged regulatory
violations. First, officers did not violate 8 C.F.R. § 287.8(c)(2)(iii), which requires
an officer to “[i]dentify himself or herself as an immigration officer.” The regulation
is temporally limited, only imposing a duty on officers “at the time of the arrest.”
2
See Torres v. Barr, 976 F.3d 918, 926 (9th Cir. 2020) (en banc) (the statutory phrase
“at the time” imposes a “temporal requirement” on the action at issue). Accordingly,
ICE officers did not need to identify themselves when they first made contact with
Ortiz Becerra or his daughter because, at that time, they were merely conducting a
knock-and-talk while looking for someone else.
Nor is Ortiz Becerra entitled to any relief for the alleged violation of 8 C.F.R.
§ 287.3(a), which requires an alien “be examined by an officer other than the
arresting officer.” Even assuming this regulation was violated, there is nothing to
suppress: Ortiz Becerra did not make any statement during the examination that was
used against him. Instead, he repeated the same statements he had already uttered
to the officers who conducted the knock-and-talk at his house. See Sanchez v.
Sessions, 904 F.3d 643, 649, 653 n.12 (9th Cir. 2018) (prejudice is required and the
fruit-of-the-poisonous-tree doctrine does not work backwards).
3. We also reject Ortiz Becerra’s argument that he is entitled to
suppression of the statements he made to officers at his house. There was no Fourth
Amendment violation—let alone an egregious one, as is required to apply the
exclusionary rule in civil immigration proceedings. Sanchez, 904 F.3d at 649;
Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994). Officers arrived at Ortiz
Becerra’s home with a search warrant for someone else who they thought would be
at that location. Ortiz Becerra’s adult daughter consented to them entering the home.
3
See Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir. 2008) (“the
voluntary consent of a party who has authority over the premises renders the
warrantless entry of a person’s home by law enforcement personnel constitutionally
valid.”).
Nor is there any reason to think that the officers were engaged in a “ruse.”
Ortiz Becerra argues that officers deliberately misrepresented the nature of their
investigation by identifying themselves as “police” rather than as ICE agents. But
immigration agents are police. See Police, New Oxford American Dictionary (3d
ed. 2010) (“an organization engaged in the enforcement of official regulations in a
specified domain” such as “transit police”). Even if ICE agents are not technically
viewed as “police” under certain jurisdictions’ laws, as amici1 point out, describing
themselves as “police” is not a deliberate misrepresentation given the everyday
meaning of that term. And in any event, the officers were wearing visible ICE
badges, which would have identified them as immigration police specifically.
Ortiz Becerra also claims that his daughter remembers that officers told her a
different name than the name identified in the arrest reports as the subject of ICE’s
warrant. Based on this claim alone, we find no basis to conclude that ICE engaged
in an impermissible ruse. Cf. United States v. Bosse, 898 F.2d 113, 115 (9th Cir.
1
The ACLU of Southern California and the University of California, Irvine
Immigrant Rights Clinic’s motion for leave to file a brief as amici curiae is
GRANTED.
4
1990) (court found impermissible ruse entry when officer pretended to be state
licensing officer conducting routine inspection).
4. For the reasons explained in Alvarado-Herrera, we reject Ortiz
Becerra’s claim that the use of reasonable fear screenings violates the Fifth
Amendment’s Due Process Clause, 8 U.S.C. § 1231(a)(5), and § 2242 of the Foreign
Affairs Reform and Restructuring Act. 2021 U.S. App. LEXIS 10492, at *15–24.
5. Substantial evidence supports the IJ’s conclusion that Ortiz Becerra has
not shown a reasonable possibility of persecution because of a protected ground. See
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). Ortiz Becerra relies
entirely on the 1998 murder of his cousin and threatening phone calls to his home as
evidence of persecution. But the IJ found that the murder of his cousin was random
gang violence. Nothing in the record casts this conclusion into doubt. Similarly, the
IJ permissibly concluded that the threats called in to his home in 1998 did not rise to
the level of persecution. See, e.g., Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th
Cir. 2005) (“most threats do not rise to the level of persecution”). Nothing in Ortiz
Becerra’s testimony suggests that these threats were targeting him specifically. In
fact, he told the asylum officer that the callers “never mentioned [his] name” but
simply asked to speak with “the man of the house.” Accordingly, substantial
evidence supports the IJ’s negative reasonable fear determination.
5
For the foregoing reasons, we DISMISS in part, and DENY in part Ortiz
Becerra’s petition.
6