Benjamin Nunez-Marquez v. Eric Holder, Jr.

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NOT FOR PUBLICATION JUL 18 2011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

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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.