Benjamin Nunez-Marquez v. Eric Holder, Jr. , 443 F. App'x 281 ( 2011 )

FILED
NOT FOR PUBLICATION JUL 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BENJAMIN NUNEZ-MARQUEZ, No. 10-72331
Petitioner, Agency No. A098-761-915
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 14, 2011 **
Seattle, Washington
Before: GILMAN, CLIFTON, and N.R. SMITH, Circuit Judges. ***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Ronald Lee Gilman, Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
Benjamin NunÞez-Marquez (NunÞez), a native and citizen of Mexico, petitions
for review of the dismissal of his appeal by the Board of Immigration Appeals
(BIA). The BIA affirmed the decision of an immigration judge (IJ) denying his
motion to suppress evidence and his request to terminate proceedings. We have
jurisdiction under 8 U.S.C. § 1252. We deny the petition.
1. The BIA did not err in denying the motion to suppress. The exclusionary
rule does not generally apply in immigration proceedings. See INS v.
Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). We have held, however, that it
does bar the introduction of evidence obtained through “egregious violations”of
the Fourth Amendment. See Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994).
An officer acted egregiously when he “committed the violation deliberately or by
conduct a reasonable officer should have known would violate the Constitution,”
Id.Petitioner does not contend that the officers here deliberately violated
petitioner’s Fourth Amendment rights. Nor should a reasonable officer have
known that the Anacortes checkpoint was unconstitutional. While the District
Court for the Western District had previously found a full car search at the
Anacortes checkpoint to be unconstitutional, United States v. Graham, 117 F.
Supp. 2d 1015, 1017-20 (W.D. Wash. 2000), nothing in that decision would alert a
2
reasonable officer that the quick stop and questioning that occurred here was
unconstitutional. Additionally, the Anacortes checkpoint, while not identical, is
relatively similar to the immigration checkpoints approved by the Supreme Court
in United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Given the similarities, a
reasonable officer could have believed the Anacortes checkpoint was
constitutional.
2. The BIA did not err in finding that NunÞe z’s Fifth Amendment rights were
not violated. First, there is no evidence that NunÞez’s statements were coerced.
Second, even though NunÞez was not provided counsel, any due process violation
was not prejudicial, because he admitted his illegal presence prior to his request for
counsel. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (“A showing of
prejudice is essentially a demonstration that the alleged violation affected the
outcome of the proceedings; we will not simply presume prejudice.” (citations
omitted)). Lastly, the IJ did not violate NunÞez’s due process rights by admitting
the Form I–213, because the form was probative and its admission was not
fundamentally unfair. See Espinoza v. INS, 45 F.3d 308, 310–11 (9th Cir. 1995).
3. Admitting the Form I-213 did not constitute reversible error, even though
the Border Patrol officers did not comply with 8 C.F.R. § 287.3(a). First, this
regulation does not “create any rights, substantive or procedural, enforceable at law
3
by any party in any matter, civil or criminal.” 8 C.F.R. § 287.12. Second, even if
it did create a right, NunÞez has not shown that he was prejudiced from its
admission, because there was other evidence demonstrating he had illegally
entered the country. See Lata, 204 F.3d at 1246.
PETITION FOR REVIEW DENIED.
4