FILED
NOT FOR PUBLICATION DEC 21 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCISCO JAVIER ARREOLA- No. 05-76967
CERVANTES,
Agency No. A077-789-004
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 11, 2009 **
San Francisco, California
Before: O’SCANNLAIN, RAWLINSON and BEA, Circuit Judges.
Petitioner Francisco Javier Arreola-Cervantes, a native and citizen of
Mexico, appeals an order by the Board of Immigration Appeals dismissing his
appeal from an Immigration Judge’s (“IJ”) order finding him inadmissible because
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
he had falsely stated he was a United States citizen while attempting to enter this
country. We deny the petition.
Petitioner admitted—first to a border patrol agent, then to the IJ—that he
falsely represented himself to be a U.S. citizen to gain entry into the United States.
This meant that Petitioner was inadmissible under 8 U.S.C. § 1182(a)(6)(C)(ii).
Petitioner argues that the IJ erred in denying his motion to exclude the
testimony of the border patrol agent. We disagree. The exclusionary rule applies
in civil immigration proceedings only when the Fourth Amendment violation is
“egregious.” Gonzalez-Rivera v. INS, 22 F.3d 1441, 1448-49 (9th Cir. 1994); see
INS v. Lopez-Mendoza, 468 U.S. 1032, 1050-51 (1984). Even assuming
Petitioner’s Fourth Amendment rights were violated, the violation was not
“egregious.” The agent testified that, while at the El Paso airport, Petitioner
appeared nervous, avoided eye contact, and attempted to evade security. There is
no indication that, in stopping Petitioner, the agent acted in bad faith or
deliberately violated Petitioner’s rights. See Gonzalez-Rivera, 22 F.3d at 1449.
Because no “egregious” Fourth Amendment violation occurred, the IJ properly
denied Petitioner’s motion to exclude the testimony of the border patrol agent.
Petitioner also argues that the Immigration and Nationality Act (“INA”)
violates equal protection because the INA does not permit the Attorney General to
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waive false representation of citizenship as a ground of inadmissibility.1 He notes
that the INA authorizes the Attorney General to waive other grounds of
inadmissibility, such as inadmissibility because of prior criminal convictions. See
INA § 212(h), 8 U.S.C. § 1182(h). In Petitioner’s view, “this yawning variance
between waivers for hardened criminals and this petitioner violates [the
constitutional guarantee of equal protection].”
“Federal classifications distinguishing among groups of aliens are . . . valid
unless ‘wholly irrational.’” Sudomir v. McMahon, 767 F.2d 1456, 1464 (9th Cir.
1985) (quoting Mathews v. Diaz, 426 U.S. 67, 83 (1981)). Here, the INA’s
treatment of false representation of citizenship as a non-waivable ground of
inadmissibility is not “wholly irrational.” Congress has an obvious interest in
deterring people who are entering the country from lying about their citizenship.
See Reid v. INS, 420 U.S. 619, 624 (1975). We therefore reject Petitioner’s equal
protection argument.
PETITION DENIED.
1
In his brief, Petitioner claims that the INA violates the Equal Protection
Clause, which applies only against the States. Giving Petitioner the benefit of the
doubt, we treat his argument as one alleging a violation of the equal protection
component of the Due Process Clause of the Fifth Amendment, which applies
against the federal government.
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