Martinez-Medina v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OSCAR MARTINEZ-MEDINA;  No. 06-75778
LADISLAO MARTINEZ-QUINTANA, Agency Nos.
Petitioners, A078-739-480
v.  A078-739-481
ERIC H. HOLDER Jr., Attorney ORDER AND
General, AMENDED
Respondent.
 OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
May 3, 2010—Portland, Oregon

Filed August 12, 2010
Amended March 11, 2011

Before: Andrew J. Kleinfeld, Carlos T. Bea, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Bea

3401
3404 MARTINEZ-MEDINA v. HOLDER

COUNSEL

James R. Patterson and Rose M. Kasusky (argued), San
Diego, California, for the petitioners.

Jeffrey S. Bucholtz, David V. Bernal, and Jesse M. Bless
(argued), U.S. Department of Justice, Washington, D.C., for
the respondent.

ORDER

The opinion filed on August 12, 2010 is amended as fol-
lows:

Page 11,548,
Line 19 Replace with

Page 11,548,
Line 30 Delete footnote 3
 MARTINEZ-MEDINA v. HOLDER 3405
Page 11,548,
Line 9 Insert new footnote 3 after the word
:

Page 11,549,
Lines 9-16 Delete

Page 11,549,
Line 17 Insert new paragraph before paragraph
beginning with :

In this new paragraph, insert footnote 4
after :

Petitioners’ petition for panel rehearing and rehearing en
banc is otherwise denied. See Fed. R. App. P. 35, 40. No fur-
ther petitions for rehearing or rehearing en banc may be filed.
 MARTINEZ-MEDINA v. HOLDER 3407

OPINION

BEA, Circuit Judge:

A Douglas County, Oregon, deputy sheriff was told by two
Mexican nationals that they were illegally present in the
United States. The deputy sheriff detained them solely by ver-
bal instruction until an Immigration officer arrived. The aliens
admitted to the Immigration officer that they were illegally
present in the United States, and the government initiated
administrative proceedings to remove the aliens from the
United States.

The aliens contend their detention by the deputy sheriff
amounted to an egregious violation of their Fourth Amend-
ment right to be free from unreasonable seizures. Based on
this allegedly egregious constitutional violation, the aliens
filed a motion to suppress statements they made to the Immi-
gration officer admitting their lack of legal status to be in this
country. The Board of Immigration Appeals (“BIA”) denied
the motion to suppress.

We agree with the BIA that there was no egregious viola-
tion of the aliens’ constitutional rights. Therefore, we deny
the petition for review.

I. Background

The facts are based primarily on the testimony of
Petitioners—Ladislao Martinez-Quintana and his son Oscar
Martinez-Medina—at their removal hearing. On November
22, 2001, Petitioners were traveling on Interstate 5 from their
home in California to Hood River, Oregon. Three other indi-
viduals were in the vehicle. At about 2:00 p.m., Petitioners’
car started to overheat. They exited the interstate highway in
Canyonville, Oregon, and pulled into a gas station. At the gas
station, Petitioners poured water onto the engine to cool it.
3408 MARTINEZ-MEDINA v. HOLDER
About thirty minutes after Petitioners arrived at the gas sta-
tion, a deputy sheriff arrived and approached their vehicle. He
asked Petitioners from where they had traveled and to where
they planned to travel. Because Ladislao did not speak
English, his son Oscar translated. The deputy sheriff also
asked to see Petitioners’ identification, which they showed
him. Then, the deputy sheriff asked, “do you have green
cards?” Petitioners responded that they did not. Petitioners
both testified that they interpreted the question about green
cards to mean: are you legally present in the United States?
The deputy sheriff told Petitioners that they could not leave
the gas station and that he was going to call “Immigration.”

While they waited for the Immigration and Naturalization
Service (“INS”) agent, a second police officer arrived. Peti-
tioners were allowed to wait next to their car, but the three
individuals who were traveling with Petitioners were placed
in the deputy sheriff’s patrol car. At one point, Ladislao
needed to use the restroom, so one of the officers accompa-
nied him while the other officer watched the rest of the group.
Ladislao estimated it took an hour and a half or two hours for
the INS agent to arrive.

According to Ladislao, when the INS agent—Agent
Warner—arrived, he first talked to the deputy sheriff and the
other officer. Then, Agent Warner took the three individuals
out of the patrol car and talked with them. Petitioners were
unable to hear the conversation. The conversation ended when
Agent Warner put the three individuals into his van. At that
point, Agent Warner approached Petitioners. Ladislao testi-
fied Agent Warner asked whether Petitioners “had docu-
ments.” Oscar testified Agent Warner asked whether
Petitioners “had green cards.” Petitioners did not testify as to
whether they responded. Without asking Petitioners any other
questions, Agent Warner loaded them into his van. He did not
give Petitioners a ticket or citation, nor did he tell them the
reason for their “arrest.”
 MARTINEZ-MEDINA v. HOLDER 3409
Agent Warner was the only other witness who testified dur-
ing Petitioners’ removal hearing. He testified that on Novem-
ber 22, 2001, he received a telephone call from a Douglas
County deputy sheriff. The deputy sheriff asked Agent War-
ner to drive to Canyonville because the deputy sheriff had
some individuals in a car with whom he wanted Agent War-
ner to speak. The deputy sheriff did not say anything else
about the individuals. Agent Warner could not remember how
much time passed between his receiving the call and his leav-
ing his office. However, he testified that it was at least a thirty
minute drive from his office to Canyonville.

When Agent Warner arrived at the gas station, the deputy
sheriff explained that “he had received a telephone call from
the owner of the gas station and it pertained to individuals
hanging around his gas station and he became nervous about
them.” Agent Warner could not remember all of the questions
he asked Petitioners, but he was positive that he “asked them
if they possessed any type of immigration documents to be
legally in the country.” Neither Petitioner answered “yes.”
Therefore, Agent Warner transported them to the border
patrol station and processed them to initiate removal proceed-
ings.

At the border patrol station, Agent Warner individually
questioned Petitioners and learned their names, dates of birth,
and places of birth. Based on these interviews, Agent Warner
filled out a Form I-213 (Record of Deportable/Inadmissible
Alien) for each Petitioner. The I-213 forms included Petition-
ers’ admissions to being illegally present in the United States.

Petitioners were served with Notices to Appear that
charged them with being subject to removal from the United
States because they remained in the United States for a longer
period than permitted. Petitioners filed a motion to suppress
all evidence obtained in violation of their Fourth Amendment
rights, which would have included the testimony of Agent
Warner and the I-213 forms.
3410 MARTINEZ-MEDINA v. HOLDER
The Immigration Judge (“IJ”) found all witnesses—
Ladislao, Oscar, and Agent Warner—credible. The IJ also
found that “[b]oth sides”—the deputy sheriff, Agent Warner,
and Petitioners—understood the questions about green cards
to mean: “are you here legally or illegally.” The IJ concluded
“the initial discussion” between the deputy sheriff and Agent
Warner “did not constitute any stop or seizure.” However, the
IJ concluded the encounter became a seizure after the deputy
sheriff asked Petitioners about their immigration status (i.e.,
whether they had green cards). The IJ concluded the seizure
did not violate the Fourth Amendment because the deputy
sheriff had probable cause to believe Petitioners were unlaw-
fully present in the United States. Thus, the IJ denied Petition-
ers’ motion to suppress, found Petitioners removable as
charged, and granted Petitioners’ request for voluntary depar-
ture.

The BIA affirmed the decision of the IJ and cited Matter
of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994).1 The BIA
concluded Petitioners were seized only after they admitted
they were aliens and failed to provide documents to show they
were lawfully present in the United States. Thus, the BIA con-
cluded Petitioners suffered no Fourth Amendment violation,
“much less an ‘egregious’ violation.” Petitioners timely filed
a petition for review.

II. Standard of Review

“We review de novo the denial of a motion to suppress.”
United States v. Crawford, 372 F.3d 1048, 1053 (9th Cir.
2004) (en banc). We also review de novo claims of constitu-
tional violations. Lanuza v. Holder, 597 F.3d 970, 972 (9th
1
Where the BIA cites Burbano and does not express disagreement with
the IJ’s decision, the BIA adopts the IJ’s entire decision. Abebe v. Gon-
zales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). Here, the BIA did
not express disagreement with the IJ’s decision, so we review the IJ’s
decision as if it were the decision of the BIA.
 MARTINEZ-MEDINA v. HOLDER 3411
Cir. 2010). An IJ’s “findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).

III. Discussion

[1] The general rule in criminal proceedings is that evi-
dence obtained in violation of a defendant’s Fourth Amend-
ment rights may not be introduced to prove the defendant’s
guilt. INS v. Lopez-Mendoza, 468 U.S. 1032, 1040-41 (1984)
(citing Wong Sun v. United States, 371 U.S. 471 (1963)). We
refer to this rule as the exclusionary rule. Id. at 1041. Gener-
ally, the exclusionary rule does not apply in civil deportation
proceedings to evidence obtained in violation of the Fourth
Amendment. Id. at 1050.2 An exception to this rule exists
where the Fourth Amendment violation is egregious.
Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448 (9th Cir. 1994).
Therefore, we must deny the petition for review unless the
deputy sheriff violated Petitioners’ Fourth Amendment rights
and that violation was egregious.
2
In Lopez-Mendoza, an alien was arrested by INS agents who were
checking the immigration status of workers as they arrived at work. 468
U.S. at 1036-37. An INS agent testified that he arrested the alien because
the alien “had been ‘very evasive,’ had averted his head, turned around,
and walked away when he saw [the INS agent].” Id. at 1037. After his
arrest, the alien admitted that he had illegally entered the United States.
Id. At his deportation hearing, the alien moved to suppress his admission
on the ground that it was the fruit of an unlawful arrest. Id. The IJ denied
the alien’s motion to suppress and found him deportable. Id. at 1037-38.
The BIA affirmed. Id. at 1038. We reversed and held that the evidence
should have been suppressed because it was the fruit of an unlawful arrest.
Id. The Supreme Court reversed and held that the exclusionary rule does
not apply in civil deportation proceedings. Id. at 1050. However, a plural-
ity of the Court noted that the exclusionary rule might apply in civil depor-
tation proceedings to evidence obtained through “egregious violations of
Fourth Amendment or other liberties that might transgress notions of fun-
damental fairness and undermine the probative value of the evidence
obtained.” Id. at 1050-51 (plurality opinion).
3412 MARTINEZ-MEDINA v. HOLDER
[2] The initial encounter between the deputy sheriff and
Petitioners did not violate Petitioners’ Fourth Amendment
rights because it was consensual. “[A] seizure does not occur
simply because a police officer approaches an individual and
asks a few questions.” Florida v. Bostick, 501 U.S. 429, 434
(1991). A seizure does not occur until “a reasonable person
would believe that he or she is not ‘free to leave’ ” or “would
[not] feel free to decline the officers’ requests or otherwise
terminate the encounter.” Id. at 435-36. Neither the deputy
sheriff’s questions about Petitioners’ travel plans, his request
for their identification, nor his question about their immigra-
tion status transformed the encounter into a seizure. See Mue-
hler v. Mena, 544 U.S. 93, 101 (2005) (holding that officers
did not need reasonable suspicion to ask an individual her
name, place of birth, or immigration status); Bostick, 501 U.S.
at 434-35 (holding that officers did not need reasonable suspi-
cion to ask questions of an individual or to ask to examine the
individual’s identification). A reasonable person would have
felt free to walk away from the deputy sheriff or free to refuse
to answer his questions and, thus, terminate the encounter.

[3] The encounter became a seizure when the deputy sher-
iff told Petitioners that they could not leave the gas station
and that he was going to call “Immigration.” At that point, a
reasonable person would not have felt free to leave or to oth-
erwise terminate the encounter. See Bostick, 501 U.S. 437.
Thus, Fourth Amendment scrutiny was triggered.

However, we need not and do not decide whether the sei-
zure violated Petitioners’ Fourth Amendment rights because
we conclude that, even if the seizure violated Petitioners’
Fourth Amendment rights, the violation was not egregious.

[4] A constitutional violation is not egregious unless “ ‘ev-
idence is obtained by deliberate violations of the [F]ourth
[A]mendment, or by conduct a reasonable officer should have
known is in violation of the Constitution.’ ” Gonzalez-Rivera,
22 F.3d at 1449 (emphasis omitted) (quoting Adamson v.
 MARTINEZ-MEDINA v. HOLDER 3413
C.I.R., 745 F.2d 541, 545 (9th Cir. 1984)). Whether a reason-
able officer should have known his conduct violated the Con-
stitution depends in part on whether the constitutional right
was clearly established in the particular context at issue. See
Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1018 (9th Cir.
2008) (holding that a reasonable officer should have known
his warrantless entry into a home was unconstitutional
because it was committed against an “unequivocal doctrinal
backdrop” that prohibited such conduct); Gonzalez-Rivera, 22
F.3d at 1450 (holding that a reasonable officer should have
known a stop based solely on a person’s Hispanic appearance
was unconstitutional because “the [stop] occurred long after
the Supreme Court . . . made clear that the Constitution does
not permit such stops”).

In Lopez-Rodriguez, INS agents received a tip that Gas-
telum, an alien, was fraudulently using the birth certificate of
a United States citizen. 536 F.3d at 1013. Without obtaining
an arrest or search warrant, the agents went to Gastelum’s
house. Id. at 1014. They knocked on the door, and Gastelum
partially opened it. Id. The agents pushed the door open and
entered the house. Id. at 1016. Gastelum did not object to the
agents’ entry. Id. After Gastelum gave the agents a false
name, they arrested her. Id. at 1014. The agents questioned
Gastelum and, based on Gastelum’s responses, completed a
Form I-213. Id. During her removal proceedings, Gastelum
filed a motion to suppress the I-213 form on the ground that
it was the fruit of an egregious Fourth Amendment violation.
Id. The IJ denied the motion on the ground the violation was
not egregious. Id. at 1015. The BIA affirmed. Id.

[5] On appeal, we reversed and held the search violated
Gastelum’s Fourth Amendment rights because “ ‘the govern-
ment may not show consent to enter from the defendant’s fail-
ure to object to the entry.’ ” Id. at 1017 (quoting United States
v. Shaibu, 920 F.2d 1423, 1427 (9th Cir. 1990)). The violation
was egregious because “reasonable officers should have
known that they were violating the Fourth Amendment in
3414 MARTINEZ-MEDINA v. HOLDER
entering Gastelum’s . . . home without a warrant, consent, or
exigent circumstances.” Id. at 1018. Gastelum’s failure to
object to the entry did not change the analysis because, ten
years prior to the conduct that gave rise to the violation, we
held that “ ‘in the absence of a specific request by police for
permission to enter a home, a defendant’s failure to object to
such entry is not sufficient to establish free and voluntary con-
sent.’ ” Id. (quoting Shaibu, 920 F.2d at 1428). Thus, the
Fourth Amendment violation was egregious because it was
committed against an “unequivocal doctrinal backdrop.” Id.

[6] Here, even if we assume there was a Fourth Amend-
ment violation, there is no evidence the deputy sheriff deliber-
ately violated the Fourth Amendment. Further, a reasonable
officer would not have known he lacked probable cause to
detain Petitioners because, as we explain below, the deputy
sheriff, unlike the officers in Lopez-Rodriguez, was not acting
against an unequivocal doctrinal backdrop. The law was
unclear as to whether an alien’s admission to being illegally
present in the United States created probable cause to seize
the alien for violating federal immigration law. Because of
this lack of clarity in the law, there was no egregious Fourth
Amendment violation.

[7] We have explained that “[a]lthough the lack of docu-
mentation or other admission of illegal presence may be some
indication of illegal entry, it does not, without more, provide
probable cause of the criminal violation of illegal entry.”
Gonzales v. City of Peoria, 722 F.2d 468, 476-77 (9th Cir.
1983), overruled on other grounds by Hodgers-Durgin v. de
la Vina, 199 F.3d 1037 (9th Cir. 1999) (en banc). We have
also explained that, unlike illegal entry, which is a criminal
violation, an alien’s illegal presence in the United States is
only a civil violation. Id. at 476. But in a subsequent opinion,
the Supreme Court stated that “entering or remaining unlaw-
fully in this country is itself a crime.” Lopez-Mendoza, 468
U.S. at 1038. Although the Court did not elaborate on what
it meant to “remain[ ] unlawfully in this country,” a reason-
 MARTINEZ-MEDINA v. HOLDER 3415
able officer could have interpreted that statement to mean an
alien’s unlawful presence in this country is itself a crime.3

In addition, we stated in Martinez v. Nygaard, 831 F.2d
822, 828 (9th Cir. 1987), that “[a]n individual’s admission
that she is an alien, coupled with her failure to produce her
green card, provides probable cause for an arrest.” This lan-
guage could have created some uncertainty with respect to
when officers have probable cause to arrest aliens for sus-
pected violations of federal immigration laws. Based on these
passages from Martinez and Lopez-Mendoza, a reasonable
officer could have concluded that an alien’s illegal presence
in the United States is a crime.

Although a reasonable officer could have been confused by
these statements in Lopez-Mendoza and Martinez—and for
that reason, the error was not “egregious”—a close reading of
those cases demonstrates that neither meant to suggest that an
alien’s mere unauthorized presence is itself a crime. Both
cases, rather, were referencing specific criminal statutes, see
Lopez-Mendoza, 468 U.S. at 1038 (citing 8 U.S.C. §§ 1302,
1306, 1325); Martinez, 831 F.2d at 828 & n.4 (citing 8 U.S.C.
§ 1304(e)), none of which criminalizes mere unlawful pres-
ence. Nor is there any other federal criminal statute making
unlawful presence in the United States, alone, a federal crime,
although an alien’s willful failure to register his presence in
the United States when required to do so is a crime, see 8
U.S.C. § 1306(a), and other criminal statutes may be applica-
ble in a particular circumstance.4 Therefore, Gonzales’s obser-
3
This conclusion would have found additional support in the Tenth Cir-
cuit’s decision in United States v. Santana-Garcia, 264 F.3d 1188, 1193
(10th Cir. 2001), which held that a Utah State Trooper had probable cause
to arrest an alien without a warrant after the alien told the trooper he was
illegally present in the United States. The Tenth Circuit’s decision in
Santana-Garcia preceded Petitioners’ November 2001 detention.
4
An alien may be unlawfully present in the United States without being
criminally liable for illegal entry, 8 U.S.C. § 1325(a), or for willful failure
to register, 8 U.S.C. § 1306(a), if the alien has overstayed a valid visa or
otherwise remains in the country after the expiration of a period autho-
rized by the Department of Homeland Security.
3416 MARTINEZ-MEDINA v. HOLDER
vation that “an alien who is illegally present in the United
States . . . [commits] only a civil violation,” and its holding
that an alien’s “admission of illegal presence . . . does not,
without more, provide probable cause of the criminal viola-
tion of illegal entry,” always were, and remain, the law of the
circuit, binding on law enforcement officers. 722 F.2d at
476-77.

[8] Petitioners also contend the deputy sheriff committed
an egregious Fourth Amendment violation when he seized
Petitioners because he should have known he lacked authority
under Oregon law to detain Petitioners. Oregon prohibits state
law enforcement agencies from “us[ing] agency moneys,
equipment or personnel for the purpose of detecting or appre-
hending persons whose only violation of law is that they are
persons of foreign citizenship present in the United States in
violation of federal immigration laws.” Or. Rev. Stat.
§ 181.850. But the deputy sheriff’s violation of Oregon law
does not constitute a violation of the Fourth Amendment and,
thus, cannot be the basis for finding an egregious Fourth
Amendment violation. See Virginia v. Moore, 553 U.S. 164,
173-74 (2008).

In Moore, two Virginia law enforcement officers stopped a
car driven by Moore because they heard over the police radio
that he was driving with a suspended license. Id. at 166. The
officers determined Moore’s license was suspended and
arrested him for the misdemeanor of driving with a suspended
license. Id. at 167. Incident to the arrest, the officers searched
Moore and found that he was carrying sixteen grams of crack
cocaine. Id. Moore was charged with possession of cocaine
with the intent to distribute it in violation of state law. Id.

Moore filed a motion to suppress the crack cocaine on the
ground that he was arrested in violation of the Fourth Amend-
ment. Id. at 168. Moore contended his Fourth Amendment
rights were violated because driving with a suspended license
is not an arrestable offense in Virginia and, thus, the officers
 MARTINEZ-MEDINA v. HOLDER 3417
lacked the authority to arrest him. Id. at 167. The trial court
denied Moore’s motion to suppress, and after a bench trial,
found Moore guilty of the drug charge and sentenced him to
five years’ imprisonment. Id. at 168. The Virginia Supreme
Court reversed and “reasoned that since the arresting officers
should have issued Moore a citation under state law, and the
Fourth Amendment does not permit search incident to cita-
tion, the [search incident to arrest] violated the Fourth
Amendment.” Id.

The United States Supreme Court reversed and held the
Virginia police officers did not violate the Fourth Amendment
when they arrested Moore. Id. at 178. As the Court explained,
“warrantless arrests for crimes committed in the presence of
an arresting officer are reasonable under the Constitution, and
that while States are free to regulate such arrests however they
desire, state restrictions do not alter the Fourth Amendment’s
protections.” Id. at 176. The Virginia officers had probable
cause to believe Moore violated state law by driving with a
suspended license, so it was not unreasonable for them to
arrest him. See id. at 177-78. Even though the officers vio-
lated state law when they arrested Moore, that state law viola-
tion did not constitute a Fourth Amendment violation. See id.

[9] Here, the deputy sheriff lacked the authority under Ore-
gon law to apprehend Petitioners based solely on a violation
of federal immigration law. See Or. Rev. Stat. § 181.850. We
assume, without deciding, that the deputy sheriff, like the offi-
cers in Moore, violated state law when he apprehended the
aliens without the authority to do so. But like the state law
violation in Moore, the deputy sheriff’s violation of Oregon
law does not constitute a Fourth Amendment violation. Thus,
even if a reasonable Oregon law enforcement officer should
have known he lacked authority under his own state’s law to
apprehend aliens based solely on a violation of federal immi-
gration law, that cannot serve as the basis for finding an egre-
gious Fourth Amendment violation.
3418 MARTINEZ-MEDINA v. HOLDER
Finally, Petitioners contend the deputy sheriff committed
an egregious Fourth Amendment violation because he seized
Petitioners based solely on the fact they are Hispanic. See
Gonzalez-Rivera, 22 F.3d at 1450 (holding that a border
patrol agent committed an egregious Fourth Amendment vio-
lation when he stopped an alien’s vehicle based solely on the
alien’s Hispanic appearance). This contention lacks merit.
First, there is no evidence in the record to support Petitioners’
claim that the deputy sheriff arrived at the gas station because
Petitioners appeared Hispanic. Second, by the time the deputy
sheriff had seized Petitioners, he knew they were illegally
present in the United States. The initial encounter at the gas
station between the deputy sheriff and Petitioners was consen-
sual and, thus, was not a seizure. It was not until Petitioners
had acknowledged their illegal presence in the United States
that the deputy sheriff seized them.

IV. Conclusion

[10] The deputy sheriff’s detention of Petitioners while he
waited for Agent Warner to arrive did not constitute an egre-
gious violation of Petitioners’ Fourth Amendment rights.
Therefore, the BIA did not err when it affirmed the IJ’s order
that denied Petitioners’ motion to suppress.

DENIED.