NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 7 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR ALBERTO GUZMAN- No. 17-70087
DELACRUZ, AKA Edgar Alberto De La
Cruz, AKA Edgar Alberto Guzman, Agency No. A088-721-411
Petitioner,
MEMORANDUM*
v.
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 4, 2019**
Pasadena, California
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and ROSENTHAL,***
District Judge.
Edgar Alberto Guzman-Delacruz, a native and citizen of Mexico, petitions
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
for review of an order of the Board of Immigration Appeals (“BIA”) affirming an
Immigration Judge’s (“IJ”) denial of Guzman-Delacruz’s motion to suppress and
terminate removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We
review de novo the denial of a motion to suppress and claims of constitutional
violations. Martinez-Medina v. Holder, 673 F.3d 1029, 1033 (9th Cir. 2011). We
deny the petition.
Guzman-Delacruz argues that the BIA erred in denying his motion to
suppress and terminate the removal proceedings because the evidence the
Government submitted to prove his alienage was the product of a stop and arrest
that violated the Fourth Amendment. Guzman-Delacruz alleges that he was
driving to work on the morning of January 16, 2014, when a Customs and Border
Protection agent stopped Guzman-Delacruz’s vehicle without any cause. After
arresting him and taking him into custody, the Government located its records from
a 2009 immigration proceeding involving Guzman-Delacruz, including a Form I-
213 “Record of Deportable/Inadmissible Alien” showing that he was not lawfully
present in the United States.
The IJ and BIA did not err in denying Guzman-Delacruz’s motion to
suppress, even assuming that his stop and arrest violated the Fourth Amendment.
Guzman-Delacruz alleges that the Government located the documents from his
2009 immigration proceedings by using evidence of his identity, including his
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fingerprints, obtained after his arrest. But the identity of an individual who is in
immigration proceedings is not suppressible, even if it came to be known through
an egregious constitutional violation. See United States v. Del Toro Gudino, 376
F.3d 997, 1001 (9th Cir. 2004). And “there is no sanction to be applied when an
illegal arrest only leads to discovery of the man’s identity and that merely leads to
the official file or other independent evidence” of alienage. Id. (quoting United
States v. Orozco-Rico, 589 F.2d 433, 435 (9th Cir. 1978)). The evidence of
Guzman-Delacruz’s alienage from his 2009 proceedings was not suppressible.
We also reject Guzman-Delacruz’s contention that the IJ and BIA erred in
admitting his 2009 Form I-213 into evidence without allowing him to cross-
examine the immigration officer who prepared it. “The sole test for admission of
evidence [in removal proceedings] is whether the evidence is probative and its
admission is fundamentally fair.” Espinoza v. INS, 45 F.3d 308, 310 (9th Cir.
1995). Here, the Form I-213 was probative as to Guzman-Delacruz’s immigration
status, and he cited no evidence “cast[ing] doubt upon its reliability” or suggesting
its admission would be fundamentally unfair. He accordingly failed to meet his
burden of establishing his entitlement to cross-examine the Form’s preparer or its
inadmissibility. Id. at 311.
PETITION DENIED.
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