United States Court of Appeals
For the First Circuit
No. 03-1518
JOSE TEODORO NAVARRO-CHALAN,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Lipez, and Howard,
Circuit Judges.
John P. Bueker, with whom Ropes & Gray LLP and Bradford E.
Steiner were on brief, for petitioner.
Alison Marie Igoe, with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, and Michael P. Lindemann,
Assistant Director, Office of Immigration Litigation, were on
brief, for respondent.
February 25, 2004
LYNCH, Circuit Judge. Jose Teodoro Navarro-Chalan, a
native and citizen of Peru, was arrested by INS agents on February
20, 1996 for having overstayed his permission to be in this
country. He was ordered deported in August 1998, and the BIA
affirmed that order in March 2003. Navarro has never argued that
he should be allowed to stay in the United States because he is
legally here; he argues only that the INS arrest and later
proceedings were so flawed as to entitle him to the relief of
cancellation of deportation. On his petition for review, we uphold
the order of deportation.
I.
The following facts appear from the decision of the
Immigration Judge or from the record and are supported by
substantial evidence. In February 1996, based on information from
the United States Customs Service and from INS Special Agent
Jarvis, the INS determined that a man named Jose Teodoro Navarro-
Chalan had entered the United States in New Orleans on August 2,
1990 and was presently working in Boston for Dobbs, a catering
company at Logan Airport, in violation of immigration laws.
Although it is not clear from the record how this information was
obtained, Navarro admitted entering the United States as a crewman,
and INS regulations require that crewmen register with the INS in
order to receive landing privileges, which allow them to stay in
the United States for up 29 days while their ship remains at port.
-2-
8 C.F.R. § 252.1(c)-(d). Presumably, the INS had some record of
Navarro's admission as a crewman and suspected from the length of
his stay and his current job that he had overstayed his landing
privileges.
The INS issued a warrant for Navarro's arrest. The INS
arranged for Dobbs to instruct five of its employees to go to the
international terminal at Logan Airport, where the INS had an
upstairs facility, on February 20, 1996. Navarro testified that he
could have chosen not to go, but only at the risk of losing his
job.
At around 10:20 a.m., the employees arrived at the
terminal and were met by six government agents, including three
armed police officers. Several employees were questioned and,
after they produced identification, were allowed to step away from
the group. When Navarro was asked for his name and nationality, he
produced a driver's license and stated that he was from Peru. At
10:30 a.m., an INS agent filled out a Form I-213 (Record of
Deportable Alien) indicating that Navarro was a Peruvian citizen
who had entered this country as a crewman on August 2, 1990 and had
been authorized to stay for no longer than thirty days. About 15
minutes later, Navarro was served with the previously prepared
arrest warrant. He was simultaneously served with Form I-286
(Notification to Alien of Conditions of Release or Detention),
which informed him in English and Spanish that he was being
-3-
released on his own recognizance, that he had the right to legal
representation, that free representation was available, and that a
hearing would be held before an immigration judge. Navarro signed
the form, acknowledging its receipt.
Navarro testified that he was then taken upstairs to an
interrogation room at around 11:00 a.m., where he answered several
agents' questions about when and how he had entered the country.
He testified that one agent told him that he would be deported from
the United States that very day. At some point before Navarro was
released, he was served with a copy of an Order to Show Cause,
which notified him in Spanish and English that any statements he
made to an INS officer could be used against him and which
reiterated that Navarro had the right to representation, that free
representation was available, and that he would have a hearing
before an immigration judge. Although Navarro later testified that
he was never informed of his rights orally, the order indicates
that it was read orally in Spanish to Navarro. Physical force was
not used at any time, nor was Navarro deprived of the use of the
bathroom.
II.
On July 2, 1997, Navarro had a hearing before an IJ. He
testified, invoking his Fifth Amendment privilege several times.
He also sought to suppress, on both constitutional and non-
constitutional grounds, all evidence arising from his February 20,
-4-
1996 statements to the INS agents, including Form I-213. The IJ
held an evidentiary hearing on the issue of suppression, in which
Navarro again testified. After the hearing, the IJ made a specific
finding that Navarro's statements to the INS agents were voluntary,
noting, inter alia, that "[r]espondent presented no evidence that
he was threatened or coerced to answer the questions by the agent."
The IJ also rejected Navarro's Fourth Amendment argument on the
ground that the exclusionary rule does not apply to civil
deportation hearings, at least absent extraordinary circumstances
not present here. The IJ did not address certain claims arising
under INS regulations. The IJ found Navarro deportable and
permitted voluntary departure. The BIA affirmed without opinion.
III.
Petitioning for review from the deportation decision,
Navarro argues that his statements on February 20, 1996 should have
been suppressed as the fruit of an unlawful interrogation in
violation of his Fourth and Fifth Amendment rights and that,
without this information, there is insufficient evidence to deport
him. He also says that the procedures used by the agents violated
INS regulations 8 C.F.R. §§ 287.3 and 242.2(c) (1995).1 We deal
with each argument in turn.
1
The 1995 version of the regulations applies because the
alleged violations occurred on February 20, 1996.
-5-
As to Navarro's first argument, we note that the
government need only establish the respondent's identity and
alienage to meet its burden on deportation. INS v. Lopez-Mendoza,
468 U.S. 1032, 1039 (1984). The burden then shifts to the
respondent to show the time, place, and manner of entry in order to
defeat deportation. Id.; see 8 U.S.C. § 1361. The government has
met its burden here based on Navarro's pre-arrest statements of his
name and nationality, as recorded on Form I-213, which the IJ
properly refused to suppress for the reasons described below.2
Navarro, however, has made no effort to carry his burden other than
moving to suppress.
Navarro's name is not information even subject to being
suppressed. The identity of an alien, or even of a defendant, is
"never itself suppressible as a fruit of an unlawful arrest, even
if it is conceded that an unlawful arrest, search, or interrogation
occurred." INS v. Lopez-Mendoza, 468 U.S. 1032, 1039 (1984).
The next issue is whether Navarro's pre-arrest statement
of his alienage, and its recording in Form I-213, may be
2
Navarro goes on to complain about statements made later
that day, arguing that he was inadequately advised of his rights.
We do not reach the question of the suppression of Navarro's later
statements, since the government has already met its burden on
deportation based on his pre-arrest statements. We do note,
however, that the record flatly refutes Navarro's assertion to this
court that he was never advised of his rights. Navarro was served
with Form I-286, which informed him in Spanish of his right to a
hearing and to representation, simultaneously with his arrest
warrant. Navarro's counsel conceded to the IJ that Navarro can
read Spanish.
-6-
suppressed. Navarro first argues that his statement of his
alienage should be suppressed because the arrest was in violation
of the Fourth Amendment. We reject this argument for two reasons.
First, Navarro's statement of alienage was made before he was
arrested. Navarro was not in custody until the warrant was served.
The IJ had adequate support for his finding that, before that
point, Navarro voluntarily chose to be there rather than to risk
losing his job, and there was no evidence that Navarro asked to
leave, was told that he could not leave, or was restrained from
leaving until the warrant was served. Second, Navarro has not
demonstrated that his arrest violated the Fourth Amendment. Once
Navarro's identity was confirmed, he was lawfully arrested pursuant
to the warrant. The arrest was the prelude to a civil immigration
proceeding, and not to a criminal proceeding.
Navarro, attempting to bring himself within the glimmer
of hope of suppression left open by Lopez-Mendoza, also argues that
his statement of his alienage should be suppressed as involuntary.
In Lopez-Mendoza, the Supreme Court concluded that the cost of the
exclusionary rule generally outweighs its benefits in the context
of civil deportation hearings. Id. at 1050-51. The Court thus
held that the exclusionary rule generally should not apply in that
context, but may have left the door open in cases of "egregious
violations of Fourth Amendment or other liberties that might
transgress notions of fundamental fairness and undermine the
-7-
probative value of the evidence obtained." Id. Navarro's list of
complaints, however, does not rise to that level of egregiousness.
The IJ found, with adequate support, that Navarro's statements were
voluntary.
Navarro disagrees, insisting that his statement of his
alienage must be found involuntary because of the site of the
questioning and because he was not given a statement of rights
before he revealed his nationality. We reject these arguments. As
to the site of the questioning, nothing requires the INS to perform
an immigration raid on the premises of an employer, particularly
when the employer cooperates with the INS to make its suspect
employees available at another location. Employers have good
business reasons for such agreements, which avoid disruption of the
workplace. As to the statement of rights, the failure to notify a
respondent of his or her rights does not render an otherwise
voluntary statement inadmissible in a deportation case. See
Navia-Duran v. INS, 568 F.2d 803, 808 (1st Cir. 1977). Here, the
IJ had adequate evidence to conclude that Navarro's decision to
cooperate by giving his name and nationality was voluntary.
Navarro saw others being asked to step back, away from the INS
questioners, when they cooperated by presenting their
identification.
We turn to Navarro's argument that the INS did not follow
its own regulatory procedures. Again, the record flatly refutes
-8-
these claims. Regulation 287.3, by its own terms, applies only to
warrantless arrests. 8 C.F.R. § 287.3; see Navia-Duran, 568 F.2d
at 809. Navarro's arrest occurred pursuant to a warrant. Navarro
argues, however, that in the 20 to 25 minutes after he got to the
terminal but before the arrest warrant was served, he was being
held without a warrant and was thus within the scope of § 287.3.
We reject this argument. As we have said, Navarro was not in
custody until the arrest warrant was served. And even if he was in
custody during that 20 to 25 minute period, the fact that the
officers took time to confirm his name and nationality before
serving the warrant does not mean that he was somehow "arrested
without a warrant." Finally, even if § 287.3 were applicable and
were violated, INS regulations state that § 287.3 and the other
regulations in its subpart "do not, are not intended to, shall not
be construed to, and may not be relied upon to create any rights,
substantive or procedural, enforceable at law by any party in any
matter, civil or criminal." 8 C.F.R. § 287.11 (1995) (current
version at 8 C.F.R. § 287.12).3
3
Navarro argues that § 287.11 does not bar him from
"pursu[ing] remedies for regulatory violations where constitutional
rights are at stake or where the violation affects the overall
fairness of the proceeding." But even if this were so, he has not
shown that those conditions are present here. As we have said,
Navarro's statements were voluntary. Cf. Navia-Duran, 568 F.2d at
810 (reversing a deportation order when an INS officer never
notified the respondent of her rights, thus violating 8 C.F.R. §
287.3, because this failure, combined with other facts, indicated
that respondent's statements were coerced).
-9-
Regulation 242.2(c), which does apply to arrests by
warrants, was satisfied when Navarro was given Form I-286 and the
Order to Show Cause, both of which contained statements of his
rights. Navarro argues that § 242.2(c) requires that the Order to
Show Cause must be explained to the respondent contemporaneously
with the service of the arrest warrant, and that, here, it was read
to Navarro (in Spanish) five hours late. Regulation 242.2(c)
states that "[w]hen a warrant of arrest is served under this part,
the respondent shall have explained to him/her the contents of the
order to show cause . . . ." The regulation does not specify how
long an agent can wait after the service of the warrant before
explaining the Order to Show Cause. But even if Navarro is correct
that five hours is too long, he concedes that his statements could
be suppressed only if he could show prejudice from the violation of
the regulation. No such prejudice has been shown here. The
statements upon which Navarro's deportation was based were made
before the arrest warrant was served, so even if the Order to Show
Cause had been read simultaneously with the service of the warrant,
it would not have affected the evidence supporting Navarro's
deportability.
In sum, the arguments presented in this petition for
review are without merit.
-10-
IV.
We affirm the order of deportation, including the
privilege of voluntary departure from this country. So ordered.
-11-