FILED
NOT FOR PUBLICATION
OCT 13 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELIPE DE JESUS LOPEZ-GOMEZ, No. 11-72099
AKA Felipe J. Lopez Gomez; MARIA
VENEGAS-GUERRA, AKA Maria M. Agency Nos. A075-261-306
Lopez Venegas; CECILIA V. LOPEZ- A075-261-307
VENEGAS; MAYRA CATALINA A075-261-309
LOPEZ-VENEGAS, AKA Mayra C. A075-261-311
Lopez Venegas,
Petitioners, MEMORANDUM*
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 17, 2015
San Francisco, California
Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.
Petitioners Felipe de Jesus Lopez-Gomez, Maria Venegas-Guerra, Cecilia V.
Lopez-Venegas, and Mayra Catalina Lopez-Venegas are citizens of Mexico who
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
entered the United States without inspection in December 1989. In 1997, Lopez-
Gomez applied for asylum on behalf of himself and the other Petitioners. In the
application, Lopez-Gomez acknowledged that Petitioners had been born in Mexico
and had entered the United States without inspection. In 1998, the former
Immigration and Naturalization Service placed Petitioners into removal
proceedings. Petitioners’ application for asylum was denied in 2000, and they
voluntarily departed the United States in 2005. Sometime between 2005 and 2008,
Petitioners re-entered the United States without inspection.
Around 6 a.m. on July 25, 2008, Immigration and Customs Enforcement
(“ICE”) officers entered Lopez-Gomez’s home without permission or a warrant.
According to Petitioners, the ICE agents ordered them to sit at the dining room
table and asked them about their identity and alienage. After Petitioners answered
the agents’ questions, the agents read them their rights.
In September 2008, ICE initiated removal proceedings against Petitioners.
Petitioners moved to suppress the evidence obtained in their home as the fruit of an
egregious Fourth Amendment violation. See Lopez-Rodriguez v. Mukasey, 536
F.3d 1012, 1016 (9th Cir. 2008). In a hearing before the Immigration Judge (“IJ”),
ICE introduced a copy of ICE Form I-392 for each Petitioner to establish his or her
alienage. The forms do not state Petitioners’ places of birth or immigration
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statuses. Petitioners argued that the forms should be suppressed as fruit of the
illegal search of their home. The IJ denied the motion to suppress on the ground
that the government discovered the documents from Petitioners’ prior immigration
proceedings using “identity evidence” — that is, evidence of who the Petitioners
are — which may not be suppressed. See United States v. Del Toro Gudino, 376
F.3d 997, 1001 (9th Cir. 2004).
At a subsequent hearing, the IJ sua sponte took administrative notice of
Petitioners’ earlier asylum application, in which Petitioners indicated that they are
Mexican nationals. The IJ then found Petitioners removable. Petitioners appealed
to the BIA and filed a motion to remand to the IJ. The BIA dismissed the appeal
and denied the motion to remand. Petitioners challenge the BIA’s decision. We
have jurisdiction under 8 U.S.C. § 1252(a).
The IJ did not err in relying on documents from Petitioners’ prior
immigration proceedings, even if we assume that the raid of Petitioners’ home was
an egregious Fourth Amendment violation and that ICE would not have discovered
the documents relating to Petitioners’ prior immigration proceedings had the
officers not learned Petitioners’ identities during the raid. Under our current circuit
law, “the simple fact of who a defendant is cannot be excluded, regardless of the
nature of the violation leading to his identity.” Del Toro Gudino, 376 F.3d at 1001.
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Petitioners contend that the IJ erred in sua sponte taking administrative
notice of their asylum application without providing them notice and an
opportunity to respond. Even assuming error, Petitioners have not shown
prejudice. See Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014). To
establish prejudice, Petitioners “must present ‘plausible scenarios in which the
outcome of the proceedings would have been different’ if a more elaborate process
were provided.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir. 2007)
(en banc) (quoting Walters v. Reno, 145 F.3d 1032, 1044 (9th Cir. 1998)).
Petitioners have not done so. Had the IJ provided Petitioners with notice and an
opportunity to respond to the documents, Petitioners would not have had a
plausible basis for challenging the documents’ authenticity. Nor could Petitioners
have kept the documents out of the record by challenging their admissibility. The
governing regulations permit the IJ to “receive in evidence any oral or written
statement that is material and relevant to any issue in the case previously made by
the respondent or any other person during any investigation, examination, hearing,
or trial.” 8 C.F.R. § 1240.7(a). Further, “hearsay is admissible in immigration
proceedings.” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003).
Petitioners moved before the IJ to terminate proceedings on the ground that
the government had deported a material witness who would have testified in a
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suppression hearing. Petitioners contend that the BIA erred in failing to address
their argument that the IJ did not rule on their motion. The BIA did address the
argument, however, and correctly ruled that Petitioners’ motion was moot because
no suppression hearing was required.
Finally, the BIA did not abuse its discretion in denying Petitioners’ motion
to remand. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005).
Petitioners’ first argument for a remand was based on their claims on the merits,
which the BIA properly denied. The BIA did not abuse its discretion in rejecting
Petitioners’ second argument for a remand — that they must be allowed to seek
immigration relief before the IJ — because Petitioners’ motion failed to identify
the nature of the relief they sought.
AFFIRMED.
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