NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 11 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SERGIO R. MARTINEZ, No. 06-75098
Petitioner, Agency No. A077-364-571
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 14, 2010
San Francisco, California
Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.**
Sergio Martinez petitions for review of the Board of Immigration Appeals’
final order of removal. The Board summarily affirmed the Immigration Judge’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
finding that Martinez is inadmissible for engaging in alien smuggling under 8
U.S.C. § 1182(a)(6)(E)(i). We deny the petition for review.
The facts of this case are known to the parties. We do not repeat them.
I. Documentary Evidence
Martinez argues the documentary evidence before the Immigration Judge
was inadmissible on several bases. We discuss each in turn.
A. Probity of Documentary Evidence
Immigration proceedings are not bound by strict rules of evidence;
nonetheless, aliens must be accorded due process. Espinoza v. INS, 45 F.3d 308,
310 (9th Cir. 1995). “The sole test for admission of evidence is whether the
evidence is probative and its admission is fundamentally fair.” Id.
Martinez argues that the Form I-213 is inadmissible because no officers
testified at his hearing, and the I-213 incorrectly reports that he admitted to
engaging in alien smuggling. In his sworn statement, however, Martinez stated
that he realized his actions were illegal. Such a minor discrepancy between the
documents does not undermine the probity of the I-213. Cf. id. at 311 (stating that
“[a] petitioner who produced probative evidence that contradicts anything material
on the I-213 would cast doubt upon its reliability” (emphasis added)).
-2-
B. Miranda Warnings
Martinez’s claim that the Due Process Clause required that he be given a
Miranda warning before questioning is without merit. See Trias-Hernandez v.
INS, 528 F.2d 366, 368-69 (9th Cir. 1975) (holding that the substantial distinctions
between a deportation proceeding and a criminal trial make Miranda warnings
inappropriate in the deportation context).
C. Coercion
Martinez’s argument that his statement was coerced is unpersuasive.
Martinez stated under oath that he had been treated very well since he had been
with immigration authorities and that his declaration was voluntary. Under these
circumstances, the evidence does not compel the conclusion that his statement was
coerced. Cf. Choy v. Barber, 279 F.2d 642, 646-47 (9th Cir. 1960) (holding that an
alien’s statement was coerced when it was obtained after threats and seven hours of
interrogation).
D. Spousal Testimony
Martinez argues his right to “spousal immunity” was violated because he
was not told that he had a right not to disclose any information that could
incriminate his wife. Again, the Federal Rules of Evidence do not apply in
removal proceedings. Even if they did, we are aware of no authority holding that
-3-
Martinez had a right to be informed of the martial communications privilege or the
privilege against spousal testimony before answering questions concerning his
wife. Furthermore, the privilege against spousal testimony is inapplicable because
Mayra did not testify against her husband. See United States v. Lefkowitz, 618 F.2d
1313, 1317-18 (9th Cir. 1980).
E. Administrative Procedure Act
Martinez’s argument that he was entitled to be represented by counsel at the
border pursuant to the Administrative Procedure Act is without merit. See
Marcello v. Bonds, 349 U.S. 302, 310 (1955) (holding that Immigration and
Nationality Act supersedes the hearing provisions of the Administrative Procedure
Act).
F. 8 C.F.R. § 287.3
Martinez’s argument that his statement was obtained in violation of 8 C.F.R.
§ 287.3(c) is foreclosed by precedent. See Samayoa-Martinez v. Holder, 558 F.3d
897, 901 (9th Cir. 2009) (holding that § 287.3(c)’s protections apply only after a
Notice to Appear has been filed in the immigration court).
G. Unlawful Detention
Martinez also argues that his statements were improperly admitted because
there was no probable cause to justify his seizure at the border. The exclusionary
-4-
rule does not apply in removal proceedings absent “egregious violations of [the]
Fourth Amendment or other liberties that might transgress notions of fundamental
fairness and undermine the probative value of the evidence obtained.” INS v.
Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). We have held that a Fourth
Amendment violation is “egregious” if “evidence is obtained by deliberate
violations of the Fourth Amendment, or by conduct a reasonable officer should
have known is in violation of the Constitution.” Lopez-Rodriguez v. Mukasey, 536
F.3d 1012, 1018 (9th Cir. 2008) (brackets, internal quotation marks, and emphases
omitted). Here, where agents witnessed Martinez and his wife traveling in a car in
which three aliens attempted to enter the United States on false pretenses, any
Fourth Amendment violation in detaining Martinez cannot be deemed egregious.
II. Alien Smuggling
Martinez also challenges the sufficiency of the evidence to support the
Immigration Judge’s finding that Martinez is inadmissible for engaging in alien
smuggling under 8 U.S.C. § 1182(a)(6)(E)(i).
As a legal permanent resident, Martinez ordinarily would not be considered
an applicant for admission when seeking entry into the United States. See 8 U.S.C.
§ 1101(a)(13)(C). However, an exception to this general rule applies when a legal
-5-
permanent resident engages in illegal activity after having departing the United
States. 8 U.S.C. § 1101(a)(13)(C)(iii).
The Immigration Judge’s finding that Martinez engaged in alien smuggling
after having departed the United States is supported by substantial evidence.
By participating in a joint venture with his wife to bring the three aliens into the
United States, Martinez was more than a mere “passenger” as described in
Altamirano v. Gonzales, 427 F.3d 586, 595 (9th Cir. 2005). As stated by the
immigration court, Martinez “associated himself with the venture of bringing these
aliens into the United States and he wanted it to succeed, as an apparent favor to
the co-worker Angel.” The government met its burden of showing Martinez is
inadmissible.
Martinez’s remaining contentions are without merit.
PETITION DENIED.
-6-