FILED
NOT FOR PUBLICATION JAN 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ALBERTO ARMAS- No. 10-70803
BARRANZUELA,
Agency No. A094-812-114
Petitioner,
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 December 4, 2013
San Francisco, California
Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.
Jose Alberto Armas-Barranzuela (“Armas” or “Petitioner”) seeks review of a
final order of the Board of Immigration Appeals (“Board”) affirming the Immigration
Judge’s (“IJ”) denial of his motion to suppress evidence of alienage and to terminate
proceedings, and entering an administratively final removal order. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
jurisdiction pursuant to 8 U.S.C. § 1252. We grant the petition, reverse the Board’s
denial of the motion to suppress, and remand with instructions.
STANDARD OF REVIEW
We review the agency’s legal analysis de novo.1 Lopez-Rodriguez v. Mukasey,
536 F.3d 1012, 1015 (9th Cir. 2008). Where, as here, the Board affirms the IJ, cites
to Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), and supplements with its own
reasoning, we review both the Board’s and the IJ’s decision. Ali v. Holder, 637 F.3d
1025, 1028–29 (9th Cir. 2011).
DISCUSSION
The exclusionary rule applies in immigration court only to evidence seized in
connection with a Fourth Amendment violation that is an “egregious” one in which
a government agent deliberately committed the violation or did so by conduct a
reasonable officer should have known would violate the Constitution. Lopez-
Rodriguez, 536 F.3d at 1015–16.
Before taking an individual into custody, an immigration officer must be able
to “articulate objective facts providing a reasonable suspicion that the subject of the
seizure was an alien illegally in this country.” Orhorhaghe v. I.N.S., 38 F.3d 488, 497
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We refer to the Board and IJ collectively as “the agency.”
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(9th Cir. 1994) (quoting Benitez-Mendez v. I.N.S., 760 F.2d 907, 909 (9th Cir. 1983)
(internal brackets omitted)); see also 8 C.F.R. § 287.8(c)(2)(i) (2013) (requiring
immigration officers to have a “reason to believe that the person to be arrested . . . is
an alien illegally in the United States.”). The specific, articulable facts “must provide
a ‘rational basis for separating out the illegal aliens from American citizens and legal
aliens.’” Orhorhaghe, 38 F.3d at 497 (quoting Nicacio v. I.N.S., 797 F.2d 700, 705
(9th Cir. 1985)).
The agency reasoned that Orhorhaghe is distinguishable because Armas was
lawfully arrested by the San Francisco Police. However, Petitioner does not complain
his initial arrest violated the Fourth Amendment, but rather his federal arrest occurred
only because federal officials egregiously violated the Fourth Amendment, and the
fruit of that violation should be suppressed. On this record, we agree.
Agent Lawton’s justification for issuing the detainer against Armas falls short
of Orhorhaghe’s requirement that immigration officials, prior to making an arrest,
make some effort to determine not only an individual’s citizenship, but also whether
the individual is lawfully present in the United States. 38 F.3d at 497. Even the
agency’s own regulation, 8 C.F.R. § 287.8(c)(2)(i), imposes this duty on immigration
officials. At the time of Petitioner’s arrest, these authorities would have put a
reasonable officer on notice that Petitioner’s seizure violated the Fourth Amendment,
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and that is all that is required under our case law to trigger the exclusionary rule in
immigration court.
We therefore grant the petition for review and reverse the agency’s denial of
Armas’s motion to suppress and terminate. We remand to the agency with
instructions to grant the motion to suppress and to terminate removal proceedings.
PETITION GRANTED. REMANDED WITH INSTRUCTIONS.
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