Oscar Aguilar-Linares v. Eric Holder, Jr. , 577 F. App'x 687 ( 2014 )

FILED
NOT FOR PUBLICATION JUN 02 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR ENRIQUE AGUILAR- No. 10-72454
LINARES,
Agency No. A099-628-708
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 13, 2014
Pasadena, California
Before: WARDLAW and FISHER, Circuit Judges, and DAWSON, District
Judge.**
Oscar Aguilar-Linares, a native and citizen of Mexico, petitions for review
of the Board of Immigration Appeals’ (“BIA”) decision. The BIA dismissed
Aguilar’s appeal of an Immigration Judge’s (“IJ”) order of removal and denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kent J. Dawson, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
his motion to suppress a Form I-44. Because “the BIA conduct[ed] a de novo
review and issue[d] its own decision,” we review only the BIA’s decision.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We have jurisdiction
under 8 U.S.C. § 1252(a).
The BIA erred by failing to analyze whether the Form I-44 “was obtained by
deliberate violations of the Fourth Amendment or by conduct a reasonable officer
should know is in violation of the Constitution.” Lopez-Rodriguez v. Mukasey, 536
F.3d 1012, 1016 (9th Cir. 2008) (quoting Orhorhaghe v. INS, 38 F.3d 488, 493
(9th Cir. 1994)) (internal quotation marks omitted). Instead, the BIA applied the
test for the admissibility of evidence in removal proceedings, asking whether the
evidence was probative, and its use fundamentally fair. See Matter of Barcenas, 19
I. & N. Dec. 609, 611 (BIA 1988). The BIA failed to analyze whether Border
Patrol Agent Pritchard or the Riverside County Sheriff’s deputies committed an
egregious Fourth Amendment violation to obtain the information contained in the
Form I-44. Furthermore, the BIA’s conclusion that the I-44 is “clearly probative”
is irrelevant to the analysis because “under both Lopez-Mendoza and controlling
Ninth Circuit law, a fundamentally unfair Fourth Amendment violation is
considered egregious regardless of the probative value of the evidence obtained.”
Gonzalez-Rivera v. INS, 22 F.3d 1441, 1451 (9th Cir. 1994) (emphasis added).
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Because the BIA applied the incorrect legal standard, we remand this
petition so the BIA can “first determine whether the agents violated the Fourth
Amendment,” and if they did, next “determine whether the agents committed the
violations deliberately or by conduct a reasonable officer should have known
would violate the Constitution.” Lopez-Rodriguez, 536 F.3d at 1016 (quoting
Orhorhaghe, 38 F.3d at 493) (internal quotation marks omitted).
We lack jurisdiction to review the denial of Aguilar’s request for voluntary
departure. See Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010).
PETITION DISMISSED IN PART; GRANTED IN PART;
REMANDED.
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