Lucio Arriaga Hernandez v. Attorney General United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2374
_____________
LUCIO ARRIAGA-HERNANDEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
______________
ON PETITION FOR REVIEW FROM REINSTATEMENT
OF A PRIOR ORDER OF REMOVAL
(Agency No. A098-007-534)
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 13, 2017
______________
Before: McKEE, AMBRO, and ROTH, Circuit Judges.
(Filed: September 21, 2017)
_______________________
OPINION*
_______________________
McKEE, Circuit Judge.
*
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Petitioner Lucio Arriaga Hernandez petitions for review of the reinstatement of
his deportation order. He argues that his arrest violated the Fourth Amendment and his
removal proceedings violated due process. For the reasons that follow, we will dismiss
his petition for review.
I.
Hernandez is a citizen of Mexico who until recently was residing in Harrisburg,
Pennsylvania. On May 2, 2016, Hernandez parked in the small parking lot of a
convenience store. He intended to wire money from the store. As Hernandez got out of
his car and began walking towards the store, he saw Department of Homeland Security
agents approaching him. According to DHS, the agents had been looking for another
person who lived in the same building as the convenience store.
The DHS report states that, when the agents saw Hernandez, they “became
suspicious of the individual” because “they were unable to identify the individual.”1 As
the agents approached, Hernandez turned and walked back to his car, got in, and began
backing out of the parking lot. However, the agents “were able to stop” Hernandez and
prevent him from leaving.2 When asked for identification, Hernandez said he was a
Mexican citizen so he didn’t have identification.
While Hernandez was detained, DHS learned his identity and that he was subject
to a 2013 order of removal. Accordingly, DHS initiated procedures for reinstatement of
1
Ohio App. II at 7.
2
Ohio App. II at 7.
2
that order. Hernandez was removed from the country on or about May 13, 2016, but his
petition for review of his removal followed.
II.3
Hernandez argues that the statement he made to DHS agents about his identity
should have been suppressed because it was obtained while he was detained and not free
to leave. His detention, he argues, constituted an arrest without probable cause or even
the reasonable suspicion required for a Terry4 stop. Hernandez concedes that ordinarily
when an illegal arrest leads only to the disclosure of identity, the identity cannot be
suppressed.5 However, Hernandez argues that because “the only reason DHS had to stop
[him] was based on racial or ethnic profiling,” this stop was an “egregious” violation of
the Fourth Amendment and therefore the “identity rule” does not apply.6
Assuming that agents violated Hernandez’s Fourth Amendment rights during the
stop in the parking lot, we hold that on this record, the violation was not an egregious
one.
3
This Court has jurisdiction to review constitutional or legal questions raised pertaining
to the reinstatement order. See 8 U.S.C. § 1252(a)(2)(D); Verde-Rodriguez v. Att’y Gen.,
734 F.3d 198, 202 (3d Cir. 2013).
4
Terry v. Ohio, 392 U.S. 1 (1968).
5
I.N.S. v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984) (“The ‘body’ or identity of a
defendant or respondent in a criminal or civil proceeding is never itself suppressible as a
fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or
interrogation occurred.”).
6
See Oliva-Ramos v. Att’y Gen., 694 F.3d 259, 275 (3d Cir. 2012) (“[T]he exclusionary
rule may apply in removal proceedings where an alien shows ‘egregious violations of
Fourth Amendment or other liberties that might transgress notions of fundamental
fairness and undermine the probative value of the evidence obtained.’” (quoting Lopez-
Mendoza, 468 U.S. at 1051)).
3
As we articulated in Olivia-Ramos, whether a violation is “egregious,” such that
evidence of an individual’s identity may be suppressed, depends on the “totality of the
circumstances” of the stop, including:
[W]hether [the petitioner] can establish intentional violations of the Fourth
Amendment, whether the seizure itself was so gross or unreasonable in
addition to being without a plausible legal ground, (e.g., when the initial
illegal stop is particularly lengthy, there is an unnecessary and menacing
show or use of force, etc.), whether improper seizures, illegal entry of
homes, or arrests occurred under threats, coercion or physical abuse, the
extent to which the agents reported to unreasonable shows of force, and
finally, whether any seizures or arrests were based on race or perceived
ethnicity.7
In Olivia-Ramos, we also adopted the reasoning of the Court of Appeals for the Second
Circuit in Almeida-Amaral v. Gonzales.8 That decision noted that, “even where the
seizure is not especially severe, it may nevertheless qualify as an egregious violation if
the stop was based on race.”9 However, in that case the Second Circuit ultimately
concluded that the border patrol agent’s stop of a seventeen-year-old boy walking into a
gas station parking lot was not egregious even though “the arresting agent . . . had no
valid reason or suspicion to justify his stop.”10
Here, by contrast, the agents did have reason to suspect Hernandez. When
Hernandez spotted the agents, he changed course and walked back to his car instead of
7
Id. at 279. An egregious violation may also be shown where the violation “undermined
the reliability of the evidence in dispute.” Id. at 278. Here, however, nothing before us
raises doubts about the veracity of the evidence obtained as a result of Hernandez’s stop.
8
Id. at 278 (citing Almeida-Amaral v. Gonzales, 461 F.3d 231, 235 (2d Cir. 2006).
9
Almeida-Amaral, 461 F.3d at 235.
10
Id. at 236.
4
continuing towards the grocery store.11 Only after Hernandez turned around and got in his
car to leave did the officers prevent him from leaving the parking lot. Furthermore, this
case presents no other indications of egregiousness as outlined in Olivia-Ramos: There is
no evidence that the stop was particularly lengthy, coercive, or threatening. The agents
who stopped Hernandez did not use force against him, nor did they intrude on private
property.12 Based on the record before us, we cannot conclude that that Hernandez was
stopped solely because of his apparent ethnicity or national origin. Although it is
certainly conceivable that Hernandez would not have been stopped if his features did not
suggest his national origin, there is scant (if any) evidence in the record to support that
conclusion.13 Accordingly, we cannot conclude that Hernandez’s stop was egregious. As
a result, even if his stop violated the Fourth Amendment, the evidence of his identity may
not be suppressed.
Hernandez also argues that the reinstatement procedures violate his due process
rights because he was unable to assert possible defenses to removal such as eligibility for
DACA or VAWA protections. However, as the petitioner notes in his brief, in Ponta-
Garcia v. Attorney General of the United States,14 we held that reinstatement of removal
11
See Cervantes-Cuevas v. I.N.S., 797 F.2d 707, 709–10 (9th Cir. 1985) (finding a basis
for reasonable suspicion when agents knew undocumented individuals were fleeing an
area and the petitioner slowed down, then sped up, upon seeing the Border Patrol car).
12
See Olivia-Ramos, 694 F.3d at 279 (noting that “inva[sion] of private property” and
“illegal entry of homes” factor into whether or not a seizure is an egregious one).
13
See Almeida-Amaral, 461 F.3d at 237 (“[The petitioner] offers nothing other than his
own intuition to show that race played a part in the arresting agent’s decision.”).
14
557 F.3d 158 (3d Cir. 2009).
5
procedures do not violate due process guarantees.15 Therefore, we are constrained by
precedent, and cannot review his reinstatement order on due process grounds.16
III.
For the reasons set forth above, we deny the petition to review the order of
reinstatement.
15
Id. at 163.
16
This court may review whether the removal order was properly reinstated. See id. at
165 (remanding a reinstatement order because the petitioner may not have reentered
illegally and the original removal order may have been invalidated). However, Hernandez
does not dispute the factual underpinnings that made reinstatement appropriate here.
6