Maria Gonzalez Diaz v. Jefferson Sessions , 693 F. App'x 588 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA D. GONZALEZ DIAZ, No. 13-70627
Petitioner, Agency No. A079-373-626
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 11, 2017**
Before: CANBY, KOZINSKI, and HAWKINS, Circuit Judges.
Maria D. Gonzalez Diaz, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ order dismissing her appeal from an
immigration judge’s decision denying her motion to suppress evidence and
terminate removal proceedings, and ordering her removed. We have jurisdiction
*
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).
under 8 U.S.C. § 1252. We review de novo the denial of a motion to suppress and
claims of constitutional violations. Martinez-Medina v. Holder, 673 F.3d 1029,
1033 (9th Cir. 2011). We deny the petition for review.
The agency did not err in denying Gonzalez Diaz’s motion to suppress
evidence and terminate removal proceedings, or in sustaining the removability
charge, because Samayoa-Martinez v. Holder forecloses her contention that her
statements to immigration officials at the border were obtained in violation of
8 C.F.R. § 287.3(c). 558 F.3d 897, 901-02 (9th Cir. 2009). Gonzalez Diaz urges
us to reconsider our holding in Samayoa-Martinez, but a three-judge panel cannot
overrule circuit precedent in the absence of an intervening decision from a higher
court or en banc decision of this court. See Avagyan v. Holder, 646 F.3d 672, 677
(9th Cir. 2011).
The agency also did not err or violate due process by admitting the
government’s evidence, where the documents submitted were probative, their
admission was fundamentally fair, and Gonzalez Diaz failed to establish that they
were inaccurate or obtained by coercion. See Espinoza v. INS, 45 F.3d 308, 310
(9th Cir. 1995) ((“The burden of establishing a basis for exclusion of evidence
from a government record falls on the opponent of the evidence, who must come
forward with enough negative factors to persuade the court not to admit it.” )
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(internal citations omitted)); Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error and substantial prejudice to prevail on a due process claim).
Because the border officials did not violate 8 C.F.R. § 287.3(c) when they
obtained information from Gonzalez Diaz before notifying her of her procedural
rights under immigration law, we need not reach her contention that this lack of
notice made her statements to the border patrol involuntary. See Samayoa-
Martinez at 902.
PETITION FOR REVIEW DENIED.
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